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New Jersey Division of Youth and Family Services v. R.J.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 23, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
R.J., DEFENDANT-APPELLANT, AND T.H., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF Z.J. AND R.R.J., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-137-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 21, 2009

Before Judges Wefing, Parker and Yannotti.

R.J. appeals from an order entered by the Family Part on February 14, 2008, which terminated his parental rights to his minor children, Z.J. and R.R.J.*fn1 We affirm.

We briefly summarize the relevant facts. The Division of Youth and Family Services (Division) became involved with the family on September 12, 2002, when it learned that T.H. had given birth to Z.J. outside of a hospital. The child tested positive for opiates and methadone and she was experiencing withdrawal.

On September 27, 2002, the Division filed an amended complaint seeking to add Z.J. to a pending action involving T.H.'s other four children. In addition, the Division filed an application seeking an order granting it the care, custody and supervision of Z.J. The court entered an order on September 27, 2002, granting the relief sought by the Division. On October 4, 2002, the child was placed with R.J.'s cousin, L.B. R.J. was arrested on August 3, 2003 and charged in the United States District Court for the District of New Jersey with possession of a firearm by a convicted felon, in violation of 18 U.S.C.A. § 922(g)(1),(2). Defendant was incarcerated following his arrest. Defendant later was found guilty of the charge. On November 22, 2004, he was sentenced to eight years and four months of incarceration in a federal correctional institution.

On October 21, 2003, the court entered a permanency order approving the Division's plan to continue Z.J.'s placement with a relative. The court found that it was not safe to return the child to T.H. because she was still involved with drugs and R.J. was incarcerated.

On February 13, 2004, the Division was informed that T.H. had given birth to R.R.J. on February 10, 2004. The Division learned that T.H. had not received any pre-natal care and T.H. and the child had tested positive for opiates. R.R.J. weighed approximately four pounds when he was born.

The Division filed an amended complaint on February 17, 2004, adding R.R.J. to the then-pending litigation involving T.H. and her other children. The Division also filed an application seeking the care, custody and supervision of the newborn child. The court entered an order on February 17, 2004, granting the Division's application. The Division placed the child in an approved resource home. Thereafter, R.R.J. was placed with L.B.'s mother-in-law, M.B.

In October 2006, the court approved the Division's plan to terminate R.J.'s and T.H.'s parental rights to Z.J. and R.R.J. The court found that the Division's plan was appropriate because R.J. was incarcerated and T.H. failed to comply with the services provided by the Division, had not obtained suitable housing, and failed to fully address her substance abuse "issues."

In January 2007, the Division filed its complaint seeking the termination of T.H.'s and R.J.'s parental rights. The court entered default against T.H. on September 13, 2007 based upon her failure to appear. The trial in the matter took place in January 2008. Although R.J. was incarcerated at the time, he participated in the trial by telephone. T.H. did not appear for the trial.

At the trial, the Division presented testimony from the Division's case manager, Hope Polite (Polite). Polite testified that R.J. was expected to be released from jail in November 2010. Polite stated that the Division had not been able to locate T.H. and she did not know where T.H. was living; however, during the trial, it was revealed that T.H. was living in Georgia with her four older children.

Polite noted that neither R.J. nor T.H. had ever had custody of Z.J. and R.R.J. She testified that the Division provided T.H. with an array of services. The Division also provided R.J. with services prior to his incarceration. Polite explained that, after R.J.'s incarceration, the Division was not able to provide him with services. Polite testified that the children's caretakers were committed to adoption.

Polite further testified that the Division believed that the children would be at risk of abuse and neglect if they were reunited with T.H. because "they need permanency [and] stability" which T.H. could not provide "at the moment." Polite also said that the children could not be reunited with R.J. She stated that the Division believed adoption was the best plan for the children because of their need for permanency and stability.

The Division also presented testimony from Mark Singer (Singer), Ph.D., a licensed psychologist. Singer stated that he had scheduled T.H. for a psychological evaluation but she failed to appear. Singer evaluated R.J. while he was in jail. Singer noted that R.J. had an extensive criminal record that included convictions for kidnapping, attempted assault and a violation of parole.

Singer also noted that R.J. had been incarcerated since 1979, except for seven years. The doctor observed that R.J. was then serving a sentence for a weapons offense and his earliest possible release date was March 2010. Singer said that he believed R.J.'s criminal record was significant because it indicated that R.J. had difficulty adhering to the limits that society placed on his behavior.

Singer further testified that R.J. was unable to create stability and consistency in his own life and, therefore, it was unlikely that he would be able to create a stable and consistent environment for the children. The doctor stated that R.J. lacked the emotional resources required to provide minimally adequate parenting for the children. He noted that, because of his incarceration, R.J. had not had any meaningful contact with the children.

Singer additionally testified that, upon his release from jail, R.J. would have to "build a relationship, a healthy relationship with both children." To do so, R.J. would have to do more than simply visit the children. The doctor said that R.J. also would have to maintain an appropriate lifestyle and comply with society's limitations on his behavior.

Singer opined that R.J. was not in a position to care for either Z.J. or R.R.J. at this time. He said that, due to their ages and their histories, the children require permanency, stability and consistency. He said that R.J. is not in a position to fulfill the children's physical needs at this time. The doctor also stated that R.J. could not presently provide even minimal parenting or protection to the children and he would not have the physical or emotional resources to capably parent the children in the foreseeable future.

Singer further testified that he had performed a bonding evaluation of the children and their foster parents. He stated that the children viewed their caretakers as their psychological parents. Singer noted that, although he did not perform a bonding evaluation of T.H. and R.J., neither child had any psychological bond with them.

Singer opined that terminating T.H.'s and R.J.'s parental rights to Z.J. and R.R.J. would not create any significant and enduring harm to the children. He further opined that terminating T.H.'s and R.J.'s parental rights would afford both Z.J. and R.R.J. opportunities to achieve a sense of permanency in their lives "that would be more beneficial to the children than maintaining the parental rights [of T.H. and R.J.]."

Gerard Figurelli (Figurelli), Ph.D., testified as a witness for R.J. Figurelli is a psychologist. He performed an evaluation of R.J. He testified that R.J. was free from any clinically significant, psychologically-based symptoms. He noted that R.J. had reported a history of significant psychoactive substance dependence and that he had never been adequately treated for that condition. Figurelli said that R.J. would benefit from participation in substance abuse treatment, after-care treatment, as well as "formal mental health treatment." He opined that R.J. would not present any danger to the children if they visited him.

On cross-examination, Figurelli was asked whether he recommended against termination of R.J.'s parental rights. The doctor responded by stating that he was not making "any such recommendation." Figurelli merely said that, if R.J. was provided with services, he would be capable of acting in a parental role for the children. The doctor agreed that R.J. had never seen R.R.J. and he had last seen Z.J. in 2003. Figurelli was also aware that R.J. had been incarcerated for a significant amount of time. He said that this indicated that R.J. has "some problems engaging in rule breaking and law breaking behavior[.]"

R.J. testified by telephone. He stated that, after Z.J. was born in September 2002 and she was placed with L.B., he visited the child every day until he was arrested in August 2003. R.J. said that he asked to see Z.J. while he was in jail but visits had not been arranged. R.J. also said that he had requested visitation with R.R.J. but his requests had gone unanswered. R.J. stated that he had spoken with the children by phone while he was incarcerated.

R.J. further testified that he learned in June of 2006 that M.B. was going to leave New Jersey with R.R.J. He said that no one had asked his permission to remove the child from New Jersey. He admitted that he had an extensive criminal record but said that it revealed "a drug addicted person who was, simply, just trying to fight for survival[.]" R.J. stated that his most serious conviction was in 1979 when he was convicted on kidnapping and assault charges.

R.J. also testified that he has made an effort to be a better parent while he has been incarcerated. R.J. said that he had participated in parenting classes that helped him "immensely." R.J. stated that he is a specialist in HIV prevention. He has participated in anger and stress management classes and written articles on topics such as recidivism that were published in a newsletter distributed throughout the New Jersey prison system. R.J. asserted that he believes that when he is released from jail, these skills would help him parent the children. He said that he did not think he should lose his parental rights merely because he has been incarcerated.

On February 13, 2008, the trial court filed an extensive written opinion in which it concluded that the Division had proven by clear and convincing evidence all of the criteria under N.J.S.A. 30:4C-15.1a for termination of T.H.'s and R.J.'s parental rights. The court refused to vacate the default previously entered against T.H. because she had not appeared in court since June 2007 and had not provided a legitimate reason for her absences.

The court found that the children had been harmed by their relationships with T.H. and R.J. The court noted that both children had been exposed to drugs prior to their births. T.H. had continued to use illegal drugs for many years and failed to provide the children with a safe and stable home. In addition, by the time of the trial, R.J had been incarcerated for two-andone-half years. As a result, R.J. had been unable to fulfill the children's physical and emotional needs on a day-to-day basis.

The court additionally found that the Division had proven that T.H. and R.J. were unwilling or unable to overcome the harm that led to the children's placement outside of the home. The court noted that T.H. had graduated from a methadone maintenance program and had obtained part-time employment at the same clinic. Her four older children had been returned to her, but there had been concerns about the adequacy of her housing and the children's failure to attend school. Thereafter, T.H. left the State and failed to inform the Division. Since that time, T.H. has made no effort to contact the Division or her attorney regarding Z.J. and R.R.J.

As to R.J., the court found that he was unable to eliminate the harm to the children due to his continuing incarceration. The court noted that, even upon his anticipated release in 2010, "there is no guarantee that he will not revert to criminal activity, as he has spent only [seven] years out of jail since 1979."

The court further found that the Division had made reasonable efforts to address the conditions that led to the children's placement outside of the home and had considered alternatives to termination of parental rights. The court noted that kinship legal guardianship need not be considered as an alternative to the termination of parental rights if adoption is likely or feasible. The court found that, in this matter, "adoption is feasible and provides more permanency for the children."

In addition, the court determined that termination of T.H.'s and R.J.'s parental rights would not do more harm than good to the children. The court stated that the evidence was "overwhelming and uncontradicted that the foster parents have provided [Z.J. and R.R.J.] with stable, permanent homes and [they] are the only nurturing psychological parents that [the children] have ever known." The court observed that T.H. had "completely disappeared from her children's lives." The court further observed that R.J. had only made "sporadic attempts to write to his children" and "he has not been able to be a consistent, reliable parental figure" as a result of his incarceration.

The court noted that Singer had testified "credibly and without contradiction" that the children would not be harmed by the termination of T.H.'s and R.J.'s parental rights but would suffer a "severe loss" if separated from their foster parents. The court also noted that Figurelli had testified that, if provided certain services, R.J. could act adequately in a parental role. The court gave more weight to Singer's testimony because Figurelli's opinion "was based upon too many contingencies" and "the results . . . would not be known for many years."

The court entered an order dated February 14, 2008, terminating the parental rights of T.H. and R.J. to Z.J. and R.R.J., and awarded guardianship of the children to the Division for purposes of adoption.

In this appeal, R.J. raises the following issues for our consideration:

POINT I

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE AN ALTERNATIVE TO TERMINATION, SPECIFICALLY KINSHIP LEGAL GUARDIANSHIP, WAS NEVER PROPERLY CONSIDERED; THE CASE SHOULD BE REMANDED FOR TESTIMONY CONCERNING THIS AND OTHER ALTERNATIVES

POINT II

THE ORDER TERMINATING THE DEFENDANT'S PARENTAL RIGHTS MUST BE REVERSED BECAUSE THE DIVISION OF YOUTH AND FAMILY SERVICES DID NOT MAKE REASONABLE EFFORTS TO PROVIDE CONTACT AND VISITATION BETWEEN THE CHILDREN AND THEIR FATHER

POINT III

THE JUDGMENT TERMINATING THE FATHER'S PARENTAL RIGHTS MUST BE REVERSED BECAUSE THE COURT WRONGLY BASED ITS DECISION ON THE FATHER'S INCARCERATION

We are convinced from our review of the record that these contentions are entirely without merit. R. 2:11-3(e)(1)(A) and (E). We therefore affirm the order terminating R.J.'s parental rights substantially for the reasons stated by the trial court in its thorough and comprehensive written opinion. We add the following comments.

It is well-established that a parent has a fundamental right to enjoy a relationship with his or her child. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, "[p]arental rights, though fundamentally important, are not absolute." Id. at 347. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid.

The "best interests" standard requires that an individual's parental rights not be terminated unless the Division establishes by clear and convincing evidence each of the following criteria:

(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 [D]ivision 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-15.1a.]

The criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

R.J. argues that the judge erred by finding that the Division met its evidentiary burden for the termination of his parental rights. In considering R.J.'s contentions, we note that the scope of our review of a trial court's factual findings is limited. Such findings "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)).

The trial court's findings of fact "'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Furthermore, because judges in the Family Part have special "expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

R.J. argues that the trial court erred by finding that the Division adequately considered alternatives to the termination of his parental rights. R.J. maintains that the Division failed to explore kinship legal guardianship as an alternative to the termination of his parental rights. As the trial court correctly noted, however, kinship legal guardianship is not a viable option when adoption is feasible. N.J. Div. of Youth & Family Svcs. v. P.P., 180 N.J. 494, 508 (2004).

Here, the Division's case manager testified that the children's caretakers were committed to their adoption. When the court approved the Division's permanency plan, it did so based on representations by the caretakers that they intended to adopt the children. Moreover, during the bonding evaluations, the caretakers told Singer that they wanted to adopt the children. We therefore reject R.J.'s assertion that the record lacks sufficient evidence to support the court's finding that kinship legal guardianship was not an alternative to the termination of R.J.'s parental rights.

R.J. also argues that the trial court erred by finding that the Division made reasonable efforts to address the circumstances that led to the children's placement outside of the home. Again, we disagree. R.J. contends that the Division failed to make reasonable efforts to provide him with contact and visitation while he was incarcerated. In her testimony at trial, the Division's case manager provided unrebutted testimony that the Division could not provide R.J. with services while he was incarcerated.

R.J. additionally argues that the trial court erred by basing its decision to terminate parental rights entirely upon the fact of his incarceration. The trial court's opinion makes clear, however, that R.J.'s incarceration was not the sole basis for the court's decision. Rather, the fact that R.J. was incarcerated was one of many facts that the trial court relied upon in finding that termination of R.J.'s parental rights is in the children's best interests.

In its opinion, the trial court noted that R.J. had a lengthy criminal record. As a result of his incarceration in August 2003, R.J. had essentially no relationship with Z.J. and R.R.J. Indeed, he had not seen Z.J. since 2003 and he had never seen R.R.J. at all. R.J. was not scheduled for release from prison until November 2010. Moreover, as Singer testified, R.J. could not be expected to provide the children with a safe and stable home in the foreseeable future.

Singer further testified that the children would be harmed by a delay in a permanent placement. He also said that the children would suffer harm if they are removed from their caretakers, who the children view as their psychological parents. We are satisfied that there was clear and convincing evidence to support the trial court's finding that termination of R.J.'s parental rights is in the children's best interests.

Affirmed.


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