June 13, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF B.S.D., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FG-20-78-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2008
Before Judges Wefing and Koblitz.
E.R.D., the biological father of B.S.D., appeals from a final judgment entered on June 19, 2007, terminating his parental rights to B.S.D. and conferring guardianship over the child in favor of the Division of Youth & Family Services (the Division).*fn1
On appeal, in a single point heading, defendant raises the following arguments:
THE TRIAL COURT ERRED IN CONCLUDING THAT THE BEST INTERESTS OF THE CHILD WOULD BE SERVED BY TERMINATING E.D.'S PARENTAL RIGHTS.
A. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT B.S.D.'S SAFETY, HEALTH OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY HER RELATIONSHIP WITH HER FATHER.
B. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT E.D. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HIS CHILD OR IS UNABLE OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILD.
C. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT 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.
D. TERMINATION OF E.D.'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.
Our careful review of the record persuades us that the judgment should be affirmed. We are satisfied that the Honorable Joanne B. Spatola's findings and conclusions are amply supported by the credible evidence in the record and are based upon correct legal principles. Rova Farms Resort, Inc v. Investors Ins. Co. of America, 65 N.J. 474, 484 (1974).
Accordingly, we affirm substantially for the reasons expressed by Judge Spatola in her comprehensive eighty-six page oral opinion delivered on June 19, 2007. We have considered defendant's contentions in light of the record and applicable law and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3 (e) (1) (E). Nonetheless, we deem it appropriate to add the following brief comments.
This termination proceeding involves the health and well-being of B.S.D., a four year old girl, born on February 1, 2004. The record reveals that her biological mother had severe psychiatric problems which were not successfully treated and led her to neglect B.S.D.'s basic needs. She did not have custody of either of her older children, one of whom had been adopted.
B.S.D.'s parents had a turbulent marriage with numerous allegations of domestic violence and various separations. The police were involved with the family often and on one occasion saw bruises on the mother consistent with her allegations of domestic violence at the hands of the father. On another date, the Division also noted bruising consistent with her allegations against E.R.D. of domestic violence. Although at times E.R.D. expressed his knowledge that his wife was psychiatrically impaired and therefore unable to care for B.S.D., he only sought custody one time, withdrawing that application before it was heard.
B.S.D. was removed from her home on May 3, 2005 (at age one). When the Division visited the home on that date, B.S.D. was wandering unsupervised, putting unsafe material in her mouth, without any unspoiled milk or food in the house for the young child. J.D. became distraught, but E.R.D. left nonetheless and went off to work.
The child was placed with the current foster parents at the age of two on January 6, 2006, after living with her maternal aunt for eight months. Her father did not present himself as an alternative primary custodian until just before the permanency hearing in March 2006. E.R.D. generally visited when permitted. Between October 2005 and February 2006 he visited only twice due to the Division's cancellations (generally weather-related) and his own cancellations (work-related). He only belatedly engaged in parenting classes and counseling. After he left his wife, he moved in with a married girlfriend, L.C., and her four children. Many appointments for assessments and home inspections for E.R.D and his girlfriend had to be repeatedly scheduled. E.R.D. never took any responsibility for the neglect of his daughter. He also did not support her financially and was not able to provide stable housing for her.
He had no plan for housing if his relationship with L.C. soured. L.C. was married to a man serving prison time for a conviction of conspiracy to commit murder. She worked full time and was not able to care for B.S.D. on a daily basis.
E.R.D. was unemployed from January 2007 through the trial in March 2007. Although he went to individual counseling, he stopped the therapy before the trial court rendered its decision. The Division's psychological expert, Dr. Leslie Williams, opined that E.R.D. was not truly committed to individual counseling because he always blamed others, either his wife or the Division, for the removal of his daughter. He believed all of his problems were caused by others.
After the trial testimony concluded, the Division informed the court in April 2007 that it had just discovered the foster father had been arrested in November 2006 and charged with the fourth-degree crime of resisting arrest, contrary to 2C:29-2a(1); the disorderly persons offense of impersonating a police officer, contrary to 2C:28-8; and the petty disorderly persons offense of improper behavior, contrary to 2C:33-2a(1). After an argument with his wife, he had left the home for three days, sleeping in his car and drinking alcohol. A bar refused to serve him in such an intoxicated state which led to his confrontation with the police. He had been accepted into a Pre-trial Intervention Program and completed alcohol counseling. The Division retained a new expert who opined that the foster father did not pose a risk to any children in his care.
After a four day trial at which E.R.D. chose not to testify, Judge Spatola found that the Division established by clear and convincing evidence that termination was warranted. In so concluding, the judge also found that severing the bond between the child and her foster parents in these circumstances would cause profound harm to B.S.D. See In re Guardianship of J.C., 129 N.J. 1, 18 (1992); New Jersey Division of Youth and Family Services v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996). The judge also found that E.R.D. would be unable to assist his daughter in healing from the trauma of separation from her foster parents. The judge relied on the testimony of Division caseworker Valerie Talmadge and Dr. Leslie Williams, as well as the Division's extensive records and other reports in reaching her conclusions.
After hearing the testimony, the trial court rendered a decision on the record in which it reviewed the case history and analyzed the four factors for termination of parental rights articulated in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591, 612 (1986) and codified in N.J.S.A. 30:4C-15.1. The court concluded that the Division clearly and convincingly demonstrated all four factors and E.R.D.'s parental rights were terminated, allowing the foster parents to adopt the child. The trial court's findings and conclusions are amply supported by the record.