May 29, 2008
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF I.E.Q., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FG 20-33-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 1, 2008
Before Judges Winkelstein and LeWinn.
E.M. is the biological father of I.E.Q., who was born to T.Q. on July 6, 2005. E.M. appeals the order of May 16, 2007, entered after a two-day trial, that terminated his parental rights to I.E.Q.
The Division of Youth and Family Services (DYFS) removed I.E.Q. from T.Q.'s custody one day after the child's birth. T.Q. did not inform E.M. of I.E.Q.'s birth until approximately one year later. The child has been in the continuous custody of his current foster parents since January 2006.
At trial, T.Q. failed to appear and her parental rights to I.E.Q. were terminated by default. E.M. appeared at trial with counsel, but he presented no witnesses and did not testify.
On appeal, E.M.'s only argument is that DYFS failed to make "reasonable efforts to provide services to help [E.M.] correct the circumstances which led to the child's placement outside the home[.]" N.J.S.A. 30:4C-15.1(a)(3). Having reviewed the record, we conclude this claim is without merit and, therefore, we affirm the order terminating E.M.'s parental rights.
Trial commenced on April 18, 2007. As of that date, E.M. had failed to submit to an evaluation by a psychologist his counsel had retained. E.M. requested one additional opportunity to contact the psychologist, Dr. Burr, in order to undergo the evaluation. Arrangements were then made for E.M. to have the evaluation done that day. A DYFS caseworker transported E.M. to Dr. Burr's office in New York City.
Trial resumed on April 25, 2007. At the outset, E.M.'s counsel advised the court that he had "a very long discussion with Dr. Burr" following E.M.'s evaluation and, "as a result of that discussion, . . . Dr. Burr [would] not be called . . . as an expert witness."
Dr. Ernesto Perdomo had conducted a psychological evaluation of E.M. on behalf of DYFS in November 2006. Through Dr. Perdomo's testimony, the following background information was elicited. E.M. was born in El Salvador and illegally emigrated to the United States in the late 1990's. His status remains that of an illegal alien. As of the time of Dr. Perdomo's evaluation, E.M. had had no contact with I.E.Q.
E.M. acknowledged abusing marijuana, cocaine and alcohol. DYFS had referred him to a substance abuse treatment program from which he was later released for noncompliance, when he tested positive for opiates during treatment. Dr. Perdomo opined that E.M.'s "drug problem is deeper and bigger than he acknowledged [it] to be . . . . He was not forthcoming in acknowledging the drug problem as revealed by th[e] test[.]"
E.M. has another child from a prior relationship, who is approximately eleven or twelve years old, and lives in El Salvador. E.M. has "very little contact with this child." Concerning I.E.Q., E.M. told Dr. Perdomo that he had never asked DYFS to arrange visitation with the child.
As a result of his evaluation, Dr. Perdomo opined that E.M. is "very impulsive and . . . may lose control under emotional stimulation." Therefore, he would have "difficulty having patience with a small infant child." He concluded that E.M. "presents significant emotional immaturity and harbors feelings of poor self esteem and inadequacy."
Despite the fact that E.M. had never had contact with I.E.Q., the plan he proposed to Dr. Perdomo was "to take care of the child himself." Dr. Perdomo expressed two concerns regarding this plan: "One is the bonding of the child toward him; what kind of relationship that child has to him, and the second one is what happened all this time that he didn't attempt to establish some kind of contact with the child." Dr. Perdomo opined that E.M.'s "ability to provide effective parenting for his infant . . . son is limited by his personality dynamics." Therefore, the doctor concluded that DYFS's plan to have I.E.Q. adopted by his current foster parents was "a lot better option" than E.M.'s proposal, because I.E.Q. "would certainly need the stability in his life, and certainly [E.M.] is not able to provide that kind of stability[.]"
When asked his opinion as to the "prognosis for reunification [between E.M. and I.E.Q.]," Dr. Perdomo replied:
Provided that he's totally off drugs and that he continue[s] working full-time, he would certainly need the help of his extended family to provide the primary care for the child, so the prognosis I quoted as poor to guarded because of the drug background, his personality dynamics, and whether or not he has that social network or family network that would be able to provide primary care for him.
At the conclusion of Dr. Perdomo's testimony, the court ordered E.M. to submit to a random urine screen. The results of that test showed morphine in E.M.'s system. E.M. acknowledged that he had used morphine the prior evening.
Regarding DYFS's "reasonable efforts to provide services" to E.M., the trial judge thoroughly reviewed the documented evidence of those efforts and made the following findings:
Regarding [E.M.], he received correspondence dated June 23 and June 17, 2006 in Spanish requesting that he submit to a paternity test for [I.E.Q.]. [Exhibit] P-113 is the July 26, 2006 Spanish letter to [E.M.] notifying him of the August 1, 2006 court date. At that time he tested positive for cocaine, THC and morphine. The next day the Division referred [E.M.] by phone and letter to him in Spanish for a psychological evaluation scheduled on September 7, 2006 with Dr. Perdomo. He also received a substance abuse referral on August 2, 2006. Catholic Charity sent him correspondence on August 8, 2006 regarding the substance abuse assessment schedule for August 16, 2006. On August 16, 2006, he again tested positive for illicit substances. He tested positive for opiates. He was referred to an intensive outpatient Spanish speaking program at Proceed. Another notice was sent to [E.M.] by regular and certified mail advising him of rescheduling of the Perdomo evaluation to November 21, 2006. Proceed ultimately closed [E.M.]'s case in December 2006 for non-compliance. [E.M.] failed to attend an additional evaluation despite proper notice with Mr. Modiano. Dr. Perdomo concluded that [E.M.] has a major drug problem. He concluded this based on the fact that [E.M.] tested positive for morphine on the last day . . . of trial. This showed that [E.M.] was not in remission but was still suffering from his drug addi[c]tion. The Division also assisted [E.M.] in attending his own psychological evaluation scheduled by his lawyer. The evaluation of [E.M.] by Dr. Burr was court-ordered. He missed that evaluation and on no notice the Division caseworker, Ms. Ali transported [E.M.] from Elizabeth to New York City for [E.M.] to attend his evaluation with Dr. Burr. After discussing the matter with Dr. Burr at length, Mr. Cillo determined [E.M.] would not be calling Dr. Burr as a witness. . . . .
According to Dr. Perdomo, [E.M.] still has a very, very serious drug problem. Despite the overwhelming, reasonable efforts made by the Division to assist [T.Q.] and [E.M.] in overcoming circumstances that led to the placement of these children, the defendants have not cooperated despite ordering [E.M.] to undergo his own psychological evaluation and despite failing to successfully attend that evaluation of the Division on no notice on the first day of trial transporting [E.M.] for his evaluation with Dr. Burr.
This evaluation occurred in New York City and as an example of reasonable efforts made by the Division, the case worker transported [E.M.] directly to the location in New York City and remained with him until the evaluation occurred.
Based on the foregoing, we conclude that the trial judge properly found that DYFS had presented clear and convincing evidence of reasonable efforts to help E.M. overcome obstacles to retaining parental rights to I.E.Q. However, E.M. failed to respond to those efforts and to take advantage of the assistance DYFS offered him.
N.J.S.A. 30:4C-15.1(c), defines "reasonable efforts" as follows:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development and health; and
(4) facilitating appropriate visitation.
The reasonableness of DYFS's efforts under this statutory prong must be assessed in the context of each particular case.
"Like considerations of parental fitness, an evaluation of the efforts undertaken by DYFS to reunite a particular family must be done on an individualized basis." In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999). Such an assessment must address "the circumstances of the individual case before the court, including the parent's active participation in the reunification effort." Ibid. (Emphasis added).
E.M.'s paternity of I.E.Q. was established on August 1, 2006. On the following day, DYFS sent E.M. a letter, in Spanish, advising him that he was scheduled for a psychological evaluation with Dr. Perdomo on September 7, 2006. Also on August 2, 2006, DYFS referred E.M. for a substance abuse evaluation which was scheduled for August 16, 2006.
When a DYFS transportation aide appeared at E.M.'s residence to drive him to his appointment with Dr. Perdomo, E.M. failed to appear. As a result, a subsequent evaluation could not be scheduled until November 21, 2006.
At his substance abuse evaluation, E.M. tested positive for drugs and was thereupon referred to an outpatient Spanish-speaking program at Proceed. E.M. was discharged from Proceed on December 4, 2006, due to his sporadic attendance and his testing positive for illegal substances.
E.M. never identified to DYFS any relative resources for placement of I.E.Q. His parents live in El Salvador and his brother lives out-of-state. As noted, E.M. told Dr. Perdomo his plan was to parent I.E.Q. himself. Dr. Perdomo opined that, even if E.M. were to receive services such as parenting classes, housing and daycare, he would still be unable to parent I.E.Q. effectively.
Finally, it is particularly significant that, as of the time of trial in April 2007, E.M. had made no effort to request visitation with I.E.Q. Despite his involvement with DYFS since August 2006, E.M. took no proactive steps to establish a relationship with his infant son. Thus, there is no bond between E.M. and I.E.Q. In short, E.M. has failed to demonstrate any "active participation in the reunification effort." Ibid.
Considering E.M.'s history of substance abuse and his diagnosed psychological and personality deficits, we conclude that DYFS made reasonable efforts to offer E.M. "assistance . . . to correct and overcome those circumstances that necessitated the placement of [I.E.Q.] in foster care." In re Guardianship of K.H.O, 161 N.J. 337, 354 (1999). E.M. willfully failed to take advantage of such assistance.
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