November 20, 2008
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF D.J.C. AND C.A.C., MINORS.
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF D.J.C. AND C.A.C., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-60-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2008
Before Judges Collester and Graves.
In these consolidated matters initiated by the New Jersey Division of Youth and Family Services (DYFS or the Division), defendant R.I.C. appeals from a judgment terminating his parental rights to his daughter, C.A.C. (fictitiously, Christina), and defendant M.B. appeals from a judgment terminating his parental rights to his daughter, D.J.C. (fictitiously, Deidre). The mother of both children, J.B., executed an identified surrender of her parental rights to allow the current foster parents to adopt both girls.
On appeal, R.I.C. presents the following arguments:
POINT I. THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIRLY CONDUCTED GUARDIANSHIP TRIAL BY FINDING THAT THE DEFENDANT WAIVED HIS RIGHT TO ASSIGNED COUNSEL AND WAIVED HIS RIGHT TO BE PRESENT AT THE GUARDIANSHIP TRIAL.
(A) THE RECORD CANNOT SUPPORT THE TRIAL COURT'S FINDING THAT THE DEFENDANT WAIVED ASSIGNED COUNSEL.
(B) THE RECORD CANNOT SUPPORT THE TRIAL COURT'S FINDING THAT THE DEFENDANT WAIVED HIS RIGHT TO BE PRESENT.
POINT II. THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S FINDINGS WITH REGARD TO THE FIRST, SECOND, AND FOURTH PRONGS OF THE "BEST INTERESTS" TEST ARE NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE IN THE RECORD.
(A) THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT "HARMED" D.J.C. AND C.A.C. UNDER THE FIRST PRONG.
(B) THE TRIAL COURT ERRED IN FINDING SECOND-PRONG PARENTAL UNFITNESS.
(C) THE TRIAL COURT ERRED IN FINDING THAT TERMINATION OF DEFENDANT'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD UNDER THE FOURTH PRONG.
M.B. argues as follows:
POINT I. SUBSTANTIAL CREDIBLE EVIDENCE DID NOT EXIST SUPPORTING THE COURT'S FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.
(A) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILD WERE AND WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.
(B) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT A FINDING THAT THE APPELLANT WAS UNWILLING OR WAS UNABLE TO ELIMINATE THE HARM FACING THE CHILD.
(C) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO M.B.
(D) THE COURT'S FINDINGS THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
After reviewing these contentions in light of the record and the applicable law, we are satisfied that all of defendants' arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated by Judge Lerner in his comprehensive oral decision on May 3, 2007, with only the following comments.
The girls were placed in foster care on September 4, 2003. On that date, the Division received a referral indicating that J.B. and her two daughters were living in a pool house. Upon investigation, the Division worker found that J.B. and her two children were living with J.B.'s mother and her paramour in a one-room pool house that had a full-sized bathroom but no kitchen. According to the Division worker's written report, the living conditions were "deplorable":
This environment is deplorable for any one to live in. Upon my investigation, I found out that the mother is on psychotropic medications . . . . According to the mother, she receive[d] treatment at St. [Barnabas] Behavioral Health Center . . . . Worker asked for authority to place the children out of home. Mother signed 6 months inform[ed] consent for the children to be placed out of home. There was no family member/friends mentioned during placement. However mother said that she will look for someone to care for them because she does not have any family besides her mother. Mother stated that [Deidre's] father is in jail and she does not know the whereabouts of [Christina's] father. Mother was very cooperative during the children's removal.
The Division's initial goal was reunification, and J.B. was offered services consistent with her psychological, psychiatric, and substance abuse evaluations. Unfortunately, because of J.B.'s sporadic progress, her failure to maintain employment, and her inability to obtain suitable housing, she was never ready to resume caring for her children.
I. R.I.C.'s Involvement with the Division R.I.C., the father of Christina, was born on January 15, 1981. On April 27, 2005, after the girls were in foster care for more than a year and a half, R.I.C. was evaluated by Dr. Charles Kaska, a psychologist. During the evaluation, R.I.C. stated that he was the father of both girls. The purpose of the evaluation was to determine whether R.I.C. had "the psychological capacity to adequately parent his daughters either presently or in the future." Dr. Kaska's findings and conclusions included the following:
The childhood which [R.I.C.] described yields mixed impressions regarding whether he was exposed to adequate role models of appropriate parenting. His mother was drug-involved and unable to provide adequate care. His father played little role in his life and was, himself, later incarcerated. He characterized his early experiences in foster care as abusive. However, he eventually came into the care of an adoptive mother who he described as strong and competent and who may have instilled in him the values and attitudes which provide the basis for successful parenting later in life. His relationship to his own daughters yields mixed impressions as well. [R.I.C.] admits that he did not make a wise choice in their mother. The pregnancies were unplanned and, according to [R.I.C.], [J.B.] never committed to the relationship or to their children. However, if his representations are true, [R.I.C.] acted in a paternal role toward his daughters both within the family unit and after the couple separated. He continued to show interest during his incarceration by maintaining contact with child protective services and by contacting them immediately upon his release. At the present time, he is reestablishing contact with his daughters through supervised visitation and he has voiced his intention to increase that contact with the goal of assuming physical custody of them as soon as he is able. [R.I.C.'s] personal history is not salutary. He had adjustment problems in school, he has an addictive history, he has had mental health crises in connection with his drug taking, he has multiple arrests both as a juvenile and adult. After serving eighteen months of a three year sentence, he is currently on intensive supervised parole and will remain so for another year. However, according to his representations, he has a stable conjugal relationship, adequate living quarters (for the two adults) and regular employment in a technical field. He attends a support group for recovering addicts and has enrolled himself in an anger management program. He prays regularly and was able to name some supportive individuals in his life. These positive factors indicate that he is serious about eventually assuming his parental responsibilities. His current psychological profile, as elucidated by the Rorschach, contains both positive and negative factors regarding his capacity to parent.
Because of the above-mentioned concerns, I cannot recommend that the children should be placed in his care at this time nor is [R.I.C.] even asking that he be given such responsibility. He is asking only that that option be kept open and that he be given a chance to demonstrate that he can be a responsible father. Notwithstanding any legal considerations or time constraints under which the Division and the court may be operating, [R.I.C.] has demonstrated enough potential to become an adequate parent that from a purely psychological perspective, he should be given the opportunity to do so. If the court and the Division are in agreement and if [R.I.C.] continues in his present positive course, I would be happy to reevaluate him in six months to a year to see if the clinical picture has improved. He does not pose an unacceptable risk to his daughters under the present conditions of visitation and all reasonable efforts to maintain and strengthen the relationship should be made as long as the Division feels it is in the children['s] interest to do so.
Following his release from prison on March 11, 2005, R.I.C. participated in the Intensive Supervision Program (ISP). In July and August 2005, R.I.C. tested positive on five occasions for either marijuana or alcohol abuse. In August 2005, R.I.C. was incarcerated again as a result of violating ISP rules. On September 12, 2005, he entered an in-patient substance abuse program, which he successfully completed on October 10, 2005. On November 14, 2005, after the girls were in foster care for more than two years, R.I.C. and J.B. were both evaluated by Dr. Jason S. Fleming, a psychologist, who testified for the Division. Dr. Fleming's findings included the following:
In conclusion, I recommend that [J.B.] and [R.I.C.] continue to be provided with services that may aid them in reaching the Division's expectations. Regarding [J.B.], I recommend that she participate in a partial hospitalization substance abuse treatment program at the Division's discretion. [J.B.] has a history of choosing when she wishes to comply with the Division. If J.B. is truly motivated to regain custody of her children she will need to further comply with the Division's requests that she complete a structured substance abuse program. Additionally, I recommend that she complete parent skills education classes and be assisted in securing independent housing. Individual therapy is also indicated to address depression or anxiety related problems, developing more adaptive coping strategies and recognizing if pharmacological treatment is necessary.
I recommend that [R.I.C.'s] substance use be closely monitored and that he be required to attend outpatient substance abuse programming in addition to mental health treatment. As he has not exhibited the ability to consistently refrain from using substances, this treatment should be made a priority for him. I recommend that the Division verify that he is receiving psychiatric and psychological treatment and remain in monthly contact with his treatment providers. Additionally he must complete parent skills education classes.
[J.B.] and [R.I.C.'s] progress toward the above recommendations/goals should be reevaluated in six months. If insufficient progress has been made at that time then it is unlikely that they will be able to care appropriately for [Deidre] or [Christina] in the foreseeable future. If such an outcome occurs, then it would be in their best interest to have [J.B.] and [R.I.C.'s] parental rights terminated, so the children can be legally freed for adoption.
[Deidre] and [Christina] appear to have a very positive and constructive relationship with one another and likely regard one another as the most consistent figures in their lives. Their pleasant and collaborative interaction suggests that they are comforted and gratified by the other's presence and they have likely both benefited intellectually and socially from one another. They rely on one another for support and clearly recognize their relationship as sisters. It is unclear whether they know that they are not full biological sisters. I doubt that this fact influences their personal relationship though it is very likely that future decisions regarding permanency could be affected by paternity issues. However, I do not recommend separation of [Deidre] and [Christina] as this could result in enduring negative consequences for them. As mentioned above, they are the most consistent figure each has, and severing that without very careful considerations could result in more harm than good.
Between November 2005 and February 2006, R.I.C. had supervised visits with the children, and he was attending parenting skills classes at St. Francis Hospital. On February 25, 2006, R.I.C. began unsupervised visits with the children. Because R.I.C. was cooperating with services, the Division placed the girls with R.I.C. and his paramour, Jennifer B., at her condominium on April 12, 2006.
On May 12, 2006, Dr. Fleming reevaluated R.I.C. "to assess his personality characteristics and emotional functioning as they relate to his ability to safely and effectively parent [the girls]." Dr. Fleming reported as follows:
Regarding updates on his treatment, [R.I.C.] informed me that he completed a 30-day inpatient drug treatment program at New Hope and then participated in a three-month intensive outpatient program. He is involved in an intensive supervision program and needs to "check in" or submit urine samples upon request. He was proud to report that he attends Narcotics Anonymous (NA) meetings weekly and has not used alcohol or marijuana since October 2005. He added that [Jennifer B.] does not use substances and has remained a support for his continued sobriety.
[R.I.C.] has been prescribed Depakote (mood stabilizer) by a physician at Ocean Mental Health Center, for what he described as "manic depressive disorder." He explained that he had always had difficulty managing his mood and temper and that now he is able to be more calm, less depressed or anxious, and able to make clearer decisions. [He] is involved in outpatient therapy and believes he is benefiting from "a chance to get things out that I used to hold in." He identified the stressors and "triggers" in his life as maintaining his sobriety, managing court and job responsibilities, managing his temper and urges to lash out when in a bad mood, and continually adjusting to having [Deidre] and [Christina] living with him.
[R.I.C.] participated in anger management classes and reported that he has learned to think more clearly before reacting, relax himself, and identify triggers to his frustrations. He believed that "it is still a work in progress" but reported feeling calmer overall and less stressed by everyday frustrations.
Prior to the finalization of his June 26, 2006 report, Dr. Fleming was notified by the Division that on May 15, 2006, a domestic violence incident involving R.I.C. and Jennifer B. resulted in injuries to Jennifer B., the arrest of R.I.C., and the removal of the children from R.I.C.'s care. Jennifer B. represented to the police that R.I.C. took her head and slammed it into the wall two times, and also "kept pushing her toward their pit bull which bit her."
A Division worker who observed Jennifer B.'s injuries described them as swelling with blood on the forehead, swelling in the left temple region, and a bruise and swelling on the left shoulder. R.I.C. remained in jail until June 12, 2006, because he could not post bail. Jennifer B. also reported to the Division that this was not the first time that R.I.C. acted violently toward her. The girls were at school when the assault occurred.
Immediately following the domestic violence incident, Deidre and Christina were placed in a temporary foster home by the Division. The children were removed because of R.I.C.'s arrest and because the Division was concerned that R.I.C.'s "potential [for] rage," his "anger," and his "short temper" might be directed toward the girls. After the placement, a Division worker, noted that Deidre and Christina were both having a difficult time as a result of their multiple placements.
II. M.B.'s Involvement with the Division
M.B., the father of Deidre, was born on January 23, 1980. In January 2002, M.B. was arrested for possession of heroin and was sentenced to two-years probation. In June 2003, he was arrested for aggravated assault, which violated his probation, and was sentenced to three years in prison.
In January 2006, M.B. was attending a step-down program through the Department of Corrections. At that time, he advised the Division that he was only interested in caring for his daughter, Deidre. The Division referred M.B. for a psychological evaluation to assess his parenting abilities. The evaluation was scheduled to take place on March 17, 2006, but did not occur because M.B.'s whereabouts became unknown when he stopped reporting to the DOC step-down program. A warrant issued for his arrest. M.B. was returned to prison and released on November 1, 2006.
On October 27, 2006, while M.B. was still in prison, Dr. Fleming conducted a psychological evaluation "to assess his emotional and intellectual functioning as they relate to his ability to safely and effectively parent" his daughter, Deidre. Dr. Fleming noted that M.B. had "expressed interest in being reunified with his daughter," and that the evaluation was being "conducted days prior to his scheduled release." Dr. Fleming's evaluation included the following information:
Regarding substance use and drug dealing, [M.B.] reported that he drank alcohol around age 14 and "experimented" with marijuana and ecstasy at age 15. He denied that he used drugs for any significant length of time adding, "I was never really big into the drug thing. I never liked anything that I couldn't control... [sic] I hung with older kids but we didn't do drugs to have fun." He denied ever having a substance abuse history but acknowledged "Drugs helped me make money. It was always about the money." He reported that from age 15 he sold marijuana, ecstasy, cocaine or heroin to make money. He explained that he only sold drugs when he needed money and often sold drugs for only a few months to a year at a time. He sold drugs sporadically between 1995 and 2003. He believed that he sold drugs to support his family until his job situations stabilized. He noted that he was not proud of his illegal behavior "but if I had to do it to support myself or my daughter for a bit, I would." He denied ever using or dealing drugs in front of his daughter.
[M.B.] acknowledged that he has not been involved in [Deidre's] life and would like to begin the process of redeveloping a relationship with her. In fact, he is interested in rekindling his relationship with [J.B.] and hoping that they would each be able to get the help necessary to regain custody of their daughter together. He believed that they continued to have "a strong bond" despite their respective problems. He reported that he began college for business management and would like to resume his studies. Upon his release he planned to return to masonry work while he paid for his education or pursue work that a few close friends could arrange for him. He noted that he may be moving back with his mother in South Toms River and that their relationship has significantly improved since he left her home.
[M.B.] was adamant that he wanted a relationship with his daughter and he did not "want her to grow up like me, with a father really there for her. I want her [to] know both parents and see us being able to have a relationship, at least for her." He recognized and praised the efforts of [R.I.C.], who he blames for creating many of the problems between him and [J.B.]. However, he acknowledged that "he was a father to my kid when I wasn't and when I couldn't be. He has a relationship with her and has grown to love her like his own daughter." He did not believe it was in [Deidre] and [Christina's] best interest to be separated from one another and hoped that some arrangement could be made so that all parties involved in their lives could remain. He believed it would be necessary to sit and talk with [J.B.] and [R.I.C.] so that arrangements could be made to care for their children.
Dr. Fleming's findings and recommendations included the following:
Despite my perception that he was genuine, [M.B.] appeared to downplay the extent of his problems with his mother and [J.B.]. His difficulties appear related to poor judgment and an inability to manage his emotions and impulses. His aggravated assault arrest illustrates this point and suggests that he has had difficulties managing his anger. He appears to have matured somewhat over the years but it is possible that he could return to having problems in these areas if under certain stressors. An example of this is [M.B.'s] acknowledgement that he would consider returning to illegal behavior (drug dealing) should he have difficulty supporting himself or his daughter. This is concerning and suggest[s] that the lure and easier money made through drug dealing could outweigh the consequences of getting rearrested (separation from his daughter and return to prison, [loss] of custody, etc.).
At the present time however, [M.B.] is not in the position to care for his daughter independently and has not yet shown that he can meaningfully adjust back into the community. Upon his release, his housing and employment situations will be unclear. He is presently unable to plan for how he will care for his daughter's day to day needs and he has never occupied a primary role in his children's lives. He expressed an interest in retaining his parental rights but must show stability in the community after years of incarceration. Consequently, I recommend that the Division delay any decisions about [M.B.'s] parental rights until he is able to re-enter the community and evidence that he can accept services and comply with the Division.
As noted in previous evaluations, [Deidre] and her half-sister, [Christina], have developed a very positive relationship and have been the most consistent individuals in each other's lives. I do not recommend separating them. Their permanency plan is becoming increasingly difficult, as there is now another adult who is expressing interest in caring for them. However, each adult in their lives, except their current foster caretaker, has been unable to consistently care for them and manage their own lives. Delaying permanency decisions indefinitely while the adults attempt to stabilize their lives will not be in the children's best interest and it is at least possible that they could remain in foster care until they are adopted.
M.B. was released from prison on November 1, 2006. At the time of trial, he was living in a hotel room in Seaside Heights working "off the books" for a mason. When asked: "[D]id you understand there was some obligation on you to maintain contact with DYFS?", M.B. answered "no." According to M.B., he was told by a Division worker to take parenting classes at St. Francis Hospital, but he claimed he was unable to finalize the arrangements with the lady he spoke with at the hospital. M.B. testified that Deidre was his "little friend."
However, when he was asked about Christina, M.B. did not know her age or her grade in school. And when he was asked if he loved Christina, M.B. responded: "I wouldn't say I love Christina . . . . The last time I saw [her], she was a baby."
III. J.B.'s Voluntary Surrender of Parental Rights and the Trial Court's Decision
The trial commenced on Monday, April 30, 2007, and it continued the following day. On Wednesday, May 2, 2007, J.B. voluntarily surrendered her parental rights on condition that the girls would be adopted by their current foster parents. When J.B. addressed the court, she had this to say:
[F]irst off, let me start by saying that I love my daughters, more than anything else in the world. And, they are such a part of me, but as the testimony went on I hear nothing that they want to be with me. That they want to stay with their foster family; that they're happy there.
I do not want to mess these girls up more than they've already been messed up. I do not want to hurt them psychologically. I'm going to miss them. [Deidre] is like my shadow and [Christina] is my little woman. . . . I know what they've been [through] because I've been through it. I love them more than life itself.
And, it just so happened that during the process of all this . . . I now have a son who I need to worry about. And . . . I'm going through this with my son now, and I don't want my son to go through this for three years.
My daughters are very well taken care of. I visit them every other week. If I thought that there was something wrong in the foster home, maybe my thought would be different. But, I know that they're very well taken care of and I know that that's where they want to be. They don't call me Mommy . . . . They don't behave the same when they're with me. They're very out of control. They don't have to listen to me; I'm not their mother.
And, I think it would be rough even if I did get them back, the transition of them coming back to me would hurt them tremendously because I think they do feel safe. And, they are safe. And, as a mother [I know this] is going to be the hardest thing that I ever had to do.
But, I have to think about [my son] and I have to think about myself. And, I know that I can't afford to take care of three babies.
THE COURT: Do you believe that this to be in the best interest of your children?
[J.B.]: Yes, I do.
The trial concluded the following day. In its oral decision, the trial court noted that the children had been "in foster care for approximately 43 months." The court also found that the Division had worked with both defendants "to see if either one could establish a safe stable home for the two [girls]. And it didn't work." In addition, the court focused on the children's need to remain together and their need for permanency and stability.
The scope of our review is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Trial courts hear the case and see the witnesses, and they are in a better position to evaluate the credibility and weight to be afforded testimonial evidence. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988). On the other hand, deference is not appropriate if the trial court's findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). In this case, the trial court made detailed findings as to each of the parents, and the court's findings are adequately supported by clear and convincing evidence. In addition, the court correctly concluded that the evidence was sufficient to satisfy each of the four statutory standards under N.J.S.A. 30:4C-15.1(a). We therefore affirm substantially for the reasons stated by Judge Lerner in his oral decision on May 3, 2007.
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