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Division of Youth and Family Services v. D.I.


June 5, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FG-15-36-06.

Per curiam.



Submitted May 12, 2008

Before Judges Graves and Sabatino.

Following a trial, the Family Part terminated the parental rights of defendant, D.I., as to his biological son, Q.I. Defendant was released from prison in 2006 after completing a lengthy sentence for two counts of endangering the welfare of a child, Q.I.'s twin sister. The sister died at the age of two in 1996 as the result of defendant beating her to death with a belt. Defendant appeals the Family Part's termination order, which we now affirm.

The following proofs adduced at trial are relevant to our consideration of the issues presented on appeal. The child in question, Q.I., was born prematurely on March 25, 1994, along with his now-deceased twin sister, K.I. Q.I.'s biological mother is C.C. For several years, defendant and C.C. were involved in a relationship with one another, although they did not marry. Defendant claims to be the father of one other child with another woman, although he does not know the child's current age or whereabouts.

Before Q.I. and his twin sister were born, C.C. had given birth to four other children, none of them fathered by defendant. One of those children died of meningitis in 1989. Between 1987 and 1993, the Division of Youth and Family Services ("DYFS") had been monitoring C.C. and her children due to various substantiated incidents of medical neglect, inadequate supervision, and lack of food and clothing.

In April 1996, DYFS received a referral that C.C. and her children, including Q.I. and his twin sister, were sleeping on a dirty mattress on the floor. DYFS substantiated this neglect, and deemed C.C.'s living quarters unsafe. Consequently, the Family Part removed Q.I. and K.I. from C.C.'s care, and granted defendant sole custody of the twins in October 1996. Defendant was then living in Cape May County with a girlfriend.

At about 5:00 a.m. on November 29, 1996, defendant's girlfriend found K.I., who was then two years old, lying on the bathroom floor. K.I. was not breathing. The girlfriend brought K.I. to a hospital, where she was found to be in full cardiac arrest. K.I. died soon thereafter. It was determined that K.I.'s fatal injuries were the result of defendant beating her repeatedly with a belt.

Following K.I.'s death, defendant was indicted and charged with one count of aggravated manslaughter, N.J.S.A. 2C:11-4(a), and two counts of endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Defendant subsequently pled guilty to the two counts of child endangerment, and the manslaughter count was dismissed. The Criminal Part sentenced defendant to ten years in prison.

After K.I.'s death, Q.I. was returned to his mother's custody. She was ordered "to cooperate and attend such courses and receive such counseling and other services as [DYFS] requires." Despite the order, C.C. had difficulty in scheduling services and attending medical appointments for Q.I. Q.I. also had problems with school attendance.

In June 1998, C.C. tested positive for drugs and agreed to enter a substance abuse facility. As a result, C.C. lost custody of Q.I. and another child for a period of time, but the children were returned to her in late 1998 or early 1999. DYFS remained involved with C.C.'s family until March 2000, when it then closed the case.

As a result of narcotics charges in 2003, C.C. lost her Section 8 housing voucher and was unable to find stable living quarters. Her children, including Q.I., were not then enrolled in school. C.C. was then sentenced to mandatory jail time as a result of the drug charges. Due to that jail term, as well as C.C.'s failure to find stable housing and to enroll the children in school, DYFS removed Q.I. and her other minor child from her care. Because he had behavioral issues, Q.I. was sent to live at a shelter. Q.I. left the shelter for a therapeutic foster home in December 2003.

In July 2005, Q.I. was classified as "[m]ultiply disabled due to . . . cognitive impairment," and found to be developmentally delayed. Q.I. also suffers from asthma, and has previously had seizures. His current foster family does not wish to adopt him.

In spite of C.C.'s difficulties, Q.I. continues to enjoy visits with his mother. He has expressed a desire to live with her again, stating that she has a "big house full of toys" waiting for him.

Defendant, meanwhile, was released from prison on March 20, 2006. DYFS located him at his mother's house three months later on June 20, 2006, and served him with a guardianship complaint. Upon being served, defendant told a DYFS case worker that he did not believe that Q.I. was his son. Consequently, the Family Part ordered a paternity test on September 25, 2006. That testing confirmed that there was a "99.99%" probability that defendant was the father of Q.I.

DYFS arranged for a licensed psychologist, Alan Lee, Psy.D., to evaluate defendant and his capacity to care for Q.I. Dr. Lee interviewed Q.I. in November 2006, and concluded that defendant was not suitable to be an independent caretaker for a minor child. Dr. Lee observed in his report that defendant exhibited signs of schizo-affective disorder and bipolar disorder with psychotic features. He found that defendant remained at "a heightened risk of criminal recidivism, substance abuse relapse, and violent and aggressive behaviors." He also noted that defendant was "largely . . . uninvolved" with Q.I. during his ten-year prison term, and that defendant only expressed a current desire to have visitation with his son but did not wish the child to reside with him.

DYFS sought to terminate the parental rights of both C.C. and defendant. The applications were tried jointly in the Family Part over two days in April 2007 and a final trial day in June 2007.

DYFS offered at trial testimony from Dr. Lee, a DYFS case manager, and Q.I.'s past and present DYFS caseworkers. Each of these witnesses outlined reasons why defendant is not a suitable caretaker for his son. The DYFS witnesses also outlined the special needs presented by Q.I., who was age thirteen at the time of trial. Although C.C. testified in her own behalf, defendant did not take the stand, nor did he call any witnesses. The Law Guardian did not call any witnesses, but supported DYFS's request to terminate defendant's parental rights.

It is well established that when seeking the termination of a parent's rights under N.J.S.A. 30:4C-15.1(a), DYFS has the burden of establishing, by clear and convincing proof, the following standards:

(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) [DYFS] 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. [N.J.S.A. 30:4C-15.1(a). See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]

The termination of a parent's right to raise his or her child is a matter of constitutional magnitude. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); see also In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992).

After considering the proofs and the arguments of counsel, the trial judge, Judge James Blaney, concluded that all four elements of N.J.S.A. 30:4C-15.1(a) had been proven to warrant the termination of defendant's parental rights. Judge Blaney observed:

[T]he [c]court specifically finds that [DYFS] has proven all four prongs with respect to [defendant] and met the standards outlined in N.J.S.A. 30:4C-15.1. The opinion of Dr. Alan Lee, a licensed psychologist called by the State, was that [defendant] was not a candidate to be an independent caregiver for [Q.I.] because first of all the defendant/father remained at a "heightened level of violence and recidivism," and second that the defendant/father had previously pled guilty to endangering the life of a child. This incident involved the violent death of [Q.I.'s] twin sister . . . at age two. The defendant/father served a prison term of approximately nine and a half years. He was released from South Woods Correctional Facility on March 20th, 2006. [Defendant's] whereabouts were unknown for a period of time after his release from prison[,] since he served his maximum sentence and was therefore not required under the parole rules to provide the correctional facility with a current address. The [c]court also heard testimony from [DYFS] that the defendant/father was not interested in caring for the child but expressed an interest in visiting with the child. The father did not provide the [c]court with any testimony or evidence to advance his desires to the [c]court; consequently, the [c]court finds that the State has proven by clear and convincing evidence that the defendant/father's parental rights must be terminated.

Specifically with respect to the first prong of the statute, N.J.S.A. 30:4C-15.1(a)(1), Judge Blaney determined that:

[Q.I.'s] safety has been endangered by the parental relationship. The father pled guilty to endangering the welfare of the child's twin sister and the court references [K.H.O., supra, 161 N.J. 337], a 1999 Supreme Court case where a mother was found to be unfit because of actions she took against herself. She was in fact addicted to drugs. Here[,] the defendant/father harmed his other child, the twin of this child.

[DYFS] has also shown that the defendant/father will continue to endanger the child's life because of the doctor's testimony of his heightened level of violence.

As to the second prong of the statute, N.J.S.A. 30:4C-15.1(a)(2), the judge ruled that:

[DYFS] likewise has demonstrated the defendant/father [is] unable to eliminate the harm facing the child[,] since the defendant/father remains at a heightened level of violence and recidivism. There was no proof offered to demonstrate any attempts to show any effort by the defendant/father to rehabilitate [himself] through therapy or otherwise.

On the third prong of the statute, N.J.S.A. 30:4C-15.1(a)(3), Judge Blaney noted:

[DYFS] has complied with standard three[,] in this [c]court's opinion[,] by attempting to and successfully locating the defendant/father. As the [c]court indicated before, the defendant/father's whereabouts were unknown for a period of time after his release in 2006. When they initially spoke with the father, he clearly advised them and informed the [DYFS] workers that he was only interested in visits with his son. Coupled with this lack of any desire to reunite with the child as a caretaking parent with the fact that the defendant/father's criminal actions towards the child's twin made an attempt at reunification a danger to the child and removed in the [c]court's opinion any responsibility on the part of [DYFS] to "correct the circumstances which led to the child's placement outside the home," and the [c]court cites [N.J.S.A. 30:4C-15.1(a)(3)] and the [c]court refers to [Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006)] and also the [c]court refers to [In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999)], a 1999 case which holds that each situation must be judged on a case-by-case basis and should consider whether the parent is an active participant. The [c]court finds the defendant/father has not been an active participant in DYFS' activities and has been absent from the child's life since his incarceration on December 2nd, 1996.

Finally, the judge concluded that the fourth prong of the statute, N.J.S.A. 30:4C-15.1(a)(4), was also fulfilled:

Finally, the [c]court finds that [DYFS] has proven by clear and convincing evidence that termination of the defendant/father's parental rights will not do more harm than good for the child. Dr. Lee's opinion is well grounded when he indicates the defendant/father is still a danger to be violent. Coupl[ing] that [assessment] with the defendant/father's prior act of violence, criminal conviction and a lack of any positive aspects in the defendant/father's actions to date[,] the [c]court is convinced the termination of the defendant/father's parental rights will do . . . no harm to the child.

Based upon these findings, Judge Blaney issued an order on July 9, 2007, terminating defendant's parental rights. The judge did not, however, terminate the parental rights of C.C., Q.I.'s mother. With regard to C.C., the judge noted that Q.I. enjoys visiting with her, that she may be able to care for him at a later time, and that DYFS had failed to establish the second and fourth prongs of the statute.*fn1

On appeal, defendant argues that the trial judge erred in finding that DYFS established the second and third prongs of N.J.S.A. 30:4C-15.1(a) as to him. As a related contention, defendant argues that the judge incorrectly found that DYFS was relieved, as a matter of law, from making a reasonable effort to provide services to defendant.

As our Supreme Court has repeatedly noted, the "[r]review of a trial court's termination of parental rights is limited." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). "A reviewing court should uphold the factual findings undergirding the trial court's decision [in a DYFS termination case] if they are supported by 'adequate, substantial and credible evidence' on the record." Id. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We are obligated on appeal to "accord deference unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" Ibid. (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). Additionally, we customarily do not second-guess the factual findings of judges, particularly judges in the Family Part, given the Family Part's expertise in matters that involve domestic relations and the welfare of children. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

Applying these standards, we are convinced that the parental rights of defendant as to Q.I. were properly terminated, substantially for the reasons expressed in Judge Blaney's thoughtful oral opinion of June 18, 2007. Defendant's violent and fatal beating of Q.I.'s twin sister, his subsequent prison term during which he had little contact with Q.I. for a decade, his initial protestations that he was not Q.I.'s father when he was located by DYFS after his release from prison in 2006, his acknowledgment that he is unable to assume custody of Q.I., the special needs of this child, and the alarming and unrebutted psychological assessment of Dr. Lee furnish more than ample grounds for the court's ultimate conclusion. We need not comment any further about the substantive proofs.

With respect to defendant's legal argument that DYFS was not relieved of a duty to provide him with reasonable services, we are inclined to agree with the trial judge's conclusion that defendant's 1996 conviction bespeaks "aggravated circumstances" of child abuse, and that DYFS was thereby relieved from providing services under N.J.S.A. 30:4C-11.3(a). Defendant criticizes the judge for not making more extensive findings of such aggravating circumstances. That criticism is inconsequential for two reasons.

First, DYFS was independently relieved of providing services to defendant under an additional statutory provision, N.J.S.A. 30:4C-11.3(b). Although that provision in subsection (b) was not specifically mentioned in the parties' appellate briefs, it is directly on point.*fn2 The provision relieves DYFS of providing services if the parent has been convicted of assault or attempted assault on a child "that resulted, or could have resulted, in significant bodily injury to the child or another child of the parent; or committing a similarly serious criminal act which resulted, or could have resulted, in the death of or significant bodily injury to the child or another child of the parent." N.J.S.A. 30:4C-11.3(b) (emphasis added). It is indisputable that defendant assaulted Q.I.'s sister with a belt and caused her to die. Hence, subsection (b) plainly applies.

Second, even if DYFS had a legal obligation to make a reasonable effort to provide defendant with services, we agree with Judge Blaney that DYFS fulfilled its obligations in this regard. DYFS searched for defendant after his release from prison and successfully located him. It arranged for a psychological evaluation by Dr. Lee. Meanwhile, defendant initially disavowed his parentage of Q.I., and expressed little interest in reunifying with him except for visitation. Given the long gap in defendant's contact with his son, and the highly unfavorable psychological evaluation by Dr. Lee, DYFS was not unreasonable in the manner in which it proceeded.

The order terminating defendant's parental rights is consequently affirmed.

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