May 5, 2008
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF R.T.C. AND K.D.J.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-18-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 31, 2008
Before Judges Collester and C.L. Miniman.
R.C. appeals from a September 28, 2006, judgment terminating his parental rights to R.T.C. and K.D.J., two of his eight natural-born children with A.J.*fn1 R.C.'s parental rights to five other children had previously been terminated between 1993 and 2001 as a result of the involvement of plaintiff New Jersey Division of Youth & Family Services (the Division) with the children of R.C. and A.J. We affirm.
A.J. gave birth to R.T.C. at home on July 31, 2003. When they arrived at the hospital, both A.J. and R.T.C. tested positive for cocaine and the hospital notified the Division. Shortly thereafter, A.J. signed an informed consent permitting the Division to place R.T.C. in foster care. The Division placed R.T.C. in a Specialized Home Provider Services (SHPS) foster home due to her medically fragile status six days after her birth.
Over the next five months, the Division worked with family members who considered caring for R.T.C., but they eventually decided they were unable to do so. During this time, physicians at Cooper University Hospital's High Risk Clinic, where R.T.C. was taken because of her low birth weight, diagnosed her with pulmonary arterial stenosis, a heart defect. Also, a physical therapist regularly evaluated R.T.C. because her development was delayed. During this period of time, the Division lost contact with A.J. and never had contact with R.C.
In January 2004 the Division initiated a search for A.J. and R.C. and on January 21, 2004, the Division filed a Verified Complaint alleging abuse and neglect. The court granted the Division custody, care and supervision of R.T.C.
A.J. gave birth to K.D.J. on September 25, 2004, in a hospital. K.D.J. was born prematurely and tested positive for cocaine at the time of her birth. Again, the hospital notified the Division, but the Division did not realize that it was dealing with A.J. because she registered using the name of one of her daughters. A.J. admitted to the Division that she had been using cocaine during her pregnancy. However, she refused to give an address where she could be reached and refused to name the father of K.D.J. A.J. left the hospital and did not return to visit K.D.J. The Division ultimately learned that A.J. had used her daughter's name when entering the hospital, and that she had a past history with the Division.
The Division filed an Amended Verified Complaint on October 6, 2004. K.D.J. was added to the prior complaint and the Division sought custody, care and supervision of both children.
The court granted the Division custody, care and supervision of both girls that same day. On January 24, 2005, the court ordered the Division to file a Complaint for Guardianship of both children.
The Division finally located R.C. in January of 2005 in the Gloucester County jail. The Division filed a Complaint for Guardianship on March 3, 2005. R.C. remained incarcerated until July of 2005. On July 1, 2005, both R.T.C. and K.D.J. moved to their current foster home, where they have remained since that time. On February 21, 2006, the court entered an "Amendment to Case Management Order of 2/14/06" acknowledging A.J.'s surrender of her parental rights to both children on condition that they would be adopted by their current caretaker. That order also set the trial date for April 11 and 12, 2006.
Between July of 2005 and March of 2006, R.C. visited with R.T.C. and K.D.J. about ten times. The Division initially referred R.C. for substance-abuse evaluation and treatment in September of 2005 because he tested positive for cocaine. He was referred again for drug treatment the following year but he did not complete it.
The trial respecting the termination of R.C.'s parental rights began on April 11, 2006. Although he was represented by counsel, he failed to appear in court and the Honorable Mary K. White entered a default. The judge heard testimony from the Division case worker and admitted the proffered documents. The case worker testified about services offered to the family and the children's continuing medical problems. The Division asked the judge to take judicial notice of R.C.'s prior judgments of conviction. Later that day, the judge discovered that R.C. was incarcerated on a pending narcotics charge. He was brought before the court on April 12, 2006. Although an oral request to vacate default was made by defendant's attorney, the judge refused to vacate it and also entered an order terminating R.C.'s parental rights.
On May 1, 2006, R.C. filed a motion for reconsideration respecting the default, the denial of his request to set aside the default and the termination of his parental rights. With the consent of the parties, the judge granted the motion and reopened the proceedings.
On July 25, 2006, R.C.'s attorney cross-examined the Division's expert. The Division's expert, Ronald S. Gruen, Ed.D., testified about his evaluation of R.C. as well as the bonding evaluations done with R.C., R.T.C. and K.D.J. Dr. Gruen stated that he completed a psychological evaluation of R.C. on October 3, 2005, and that he had asked R.C. about his plans to care for these two children. R.C. told him that he was planning to resume cohabitation with A.J. and that she would care for the children. When told that A.J. had already informed Dr. Gruen that she had no interest in reuniting with R.C., he suggested a girlfriend or sister as possible caretakers. Dr. Gruen pointed out that R.C. had acknowledged during the bonding evaluation that he had not seen either child since they were born. Dr. Gruen testified that he had not recommended that the children be placed with R.C. in his report and nothing had altered his recommendation. The only other testimony that day was given by the case worker, who testified that the Division's plan was to have the foster mother adopt the children, if guardianship was granted. The judge offered R.C. an opportunity to present evidence but he did not testify or offer any other evidence.
On September 27, 2006, Judge White delivered her decision from the bench and terminated R.C.'s parental rights. The judge found that the Division had worked with extended family members, some of whom were already caring for the older children of R.C. and A.J., but they ultimately withdrew their applications. Other family members were ruled out by the Division. The judge found that, as of the October 3, 2005, bonding evaluation, R.C. had not seen his children since their birth. Thereafter, R.C. took advantage of Division-supervised visitation on ten occasions between October 24, 2005, and March 3, 2006. Shortly thereafter, R.C. was again arrested and held because he could not provide sufficient bail. He remained incarcerated in April 2006 when the guardianship trial began and remained there until his attendance at trial was secured by a writ for July 25, 2006.
The judge also found that R.C. did not demonstrate that he had secured adequate housing between July 2005 and March 2006 while he was free of incarceration. Additionally, he did not benefit from the limited drug therapy in which he participated. Finally, the judge accepted the testimony of Dr. Gruen, who concluded that there was no relationship between the children and their father, that there was no observable psychological bonding, and that neither child would suffer any emotional loss if they did not see R.C. again.
The judge then addressed the four prongs of N.J.S.A. 30:4C-15.1(c) and placed her conclusions on the record: The Court finds that the first prong of the statutory test under [N.J.S.A.] 30:4C-15.1c. has been met in that the . . . children's safety, health and development had been or would be continued to be endangered by the parental relationship.
Mr. Coleman did not acknowledge to anyone responsible for the care of either children from the time of their birth until he met with Doctor Gruen in October of 2005, which is two years after [R.T.C.]'s birth and a year after [K.D.J.]'s birth, that he is their father or make any efforts to visit with them. His representation was that he was in jail during those time periods. However, he was in jail for only seven months of those time periods all together . . . basically from the time of his reincarceration in March of 2006, measuring between that date and July 31 of 2003 when the older child was born. Again, he was in either Gloucester County jail or Camden County jail, but, in any event, the only record of incarceration is approximately seven months of that two year period.
After his second release, after serving the sentence on the violation of probation, he began to visit in some pattern that is between sporadic and consistent and basically 10 times over a period of time from October of 2005 until February 2006 and, as noted earlier, those visits did not progress.
. . . . [R.C.] . . . had a knowledge that he had been abusing drugs consistently from the time he was 13 up until he began to participate in SODAT treatments as a result of being incarcerated in the Gloucester County jail between January and July of 2005. . . . His treatment with SODAT is sporadic at best. The Court cannot find that he has in anyway [sic] addressed that long standing drug problem, the one that was operative in his life at the time that the other five children he parented biologically with [A.J.] who were removed in earlier judgments continues to be operative at the time of [K.D.J.]'s and [R.T.C.]'s birth and up until the final trial date in July.
The second prong of the test, I find that this parent, [R.C.], is unwilling or unable to eliminate the harm facing the child[ren]. The only plan that he had for reunification involved either a lie or a complete casual denial of reality, a complete lack of actual real planning in any sense of the term in that he tells Doctor Gruen one week after [A.J.], the mother, indicates that they have broken up, that he is going to reunite with her and that she is going to assist him in raising the children. [A.J.] ultimately again did voluntarily surrender her rights to the children, was making no progress in her own treatment, had no independent housing, did not demonstrate having any source of employment.
His plan was simply picked out of the sky. Frankly, it has no more bearing on reality than a work of fiction. He made no real plan to eliminate the harm facing the child. . . .
He has not secured a stable home for the child during his brief release from . . . incarceration, from jails or prisons, between July of 2005 and March of 2006. Any further delay, given the fact that these children have only known two homes, are at an age where attachment is essential to their health and development, had to move from one home to another when they were approximately two years of age, one child one year of age, a third move at this time without an excellent prospect for permanency the Court finds would have nothing but seriously harmful effects on the children's mental and emotional health, given the fact that they would have had three placements from the time of their birth if that were to happen, and if the third placement failed, it didn't have a reasonable expectation of success, i.e. if there was a return to [R.C.], that would build in four placements during their very young pre-school lives.
The Court cannot conclude at this time that separation from the resource family would cause serious and enduring emotional or psychological harm to the children. Although, certainly the Court can take judicial notice of the fact that since Doctor Gruen's evaluation in October of that family, which received the children in July of 2005, and based on Ms. Pappas'[s] testimony that the relationship continues to grow and flourish, that it is most likely that any psychologist or psychiatrist examining the children would in fact render such an opinion. And, so I certainly find that that is a factor in my analysis of prong 2 of the statutory test regarding removal, of the four elements that the State must prove by clear and convincing evidence, even if I cannot reach the conclusion regarding serious and enduring emotional psychological harm without reopening the matter for testimony, and that's not necessary because the other portions of the second prong of the test have been demonstrated . . . by the overwhelming clear and convincing evidence.
The . . . third prong is whether the Division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home. The Division never asked for an order excusing it from reasonable efforts with regard to [R.C.] However, if they did, it would have had a good prospect of success based on the fact that five prior children were removed and that for much of the time period . . . after these two children were removed from him he was in jail or, if not in jail and in the community, making no affirmative effort to visit with the children. Although, he has acknowledged in the course of this litigation he was aware both were born, it was not a secret, and he acknowledged that he was their father while he was serving his time in Gloucester County in the first half of 2005.
There are no reasonable alternatives to termination of parental rights that have been presented to this Court. There was no time line for release, for possible intensive supervision placement for [R.C.], for some ability of [R.C.] in the foreseeable future to be out of jail and in a stable home, and therefore the Court finds there is no reasonable alternative.
Finally, the Court finds that termination of parental rights will not do more harm than good. These children have very little relationship with [R.C.] He was an acquaintance of theirs for a three month period after visits of one hour each for 10 weeks, a total of 10 hours. At this point the children are likely to have their acquaintanceship with [R.C.] to have done anything but fade.
The Court finds by clear and convincing evidence that the Division has proven all four . . . prongs of the test supporting termination of parental rights and will enter a judgment accordingly and that completes this matter.
R.C. contends on appeal that Judge White erred in finding that the Division had proven by clear and convincing evidence each of the four statutory prongs necessary to terminate parental rights.
The scope of our review of a trial judge's findings of fact is a limited one. Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We find no error in Judge White's findings of fact. They are supported by adequate, substantial and credible evidence in the record and are entitled to deference on appeal, especially in a Family Part matter. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
However, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to our plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Parents enjoy a constitutionally protected right to enjoy a relationship with their children. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed on the termination of parental rights. Id. at 347. However, parental rights are not absolute and the constitutional rights that surround family rights are "tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. This balancing test is achieved with the best-interests-of-the-child standard. Ibid.
When applying for guardianship, DYFS is required to institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on the State to establish its case by clear and convincing evidence. Ibid.; In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The best-interests-of-the-child standard is set forth in N.J.S.A. 30:4C-15.1(a) and establishes the proofs required to terminate parental rights:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
These four criteria relate to and overlap with each other and are not discrete and separate. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007); K.H.O., supra, 161 N.J. at 348. Each criterion was applied to the facts as the judge found them to be.
After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by R.C. are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1)(A), (E), and we affirm substantially for the reasons expressed by the trial judge in her oral opinion delivered on September 27, 2006. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. Rova Farms, supra, 65 N.J. at 483-84. We add only the following comments.
It was undisputed in the record that R.C. never formed a bond with these two children whereas the foster parents were doing so. Additionally, R.C. led an unstable life, punctuated with drug abuse and imprisonment, for a long period of time. He has not demonstrated any ability to remedy the harm he caused the children by this lifestyle. He had no viable plan for housing, feeding and caring for these children with special needs. R.C. had a long history with the Division in connection with five of the six older children and the judge reasonably concluded that the Division should not have had to provide any further services. Clearly, termination of parental rights will do more good than harm.