April 27, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
C.J., SR., AND G.B. DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF C.J., JR.
On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket Nos. FG-20-62-06 and FG-09-176-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 25, 2009
Before Judges Fisher, C.L. Miniman and King.
In these consolidated appeals, we review a judgment terminating the parental rights of both defendants. After careful review, we defer to the trial judge's factual findings, because they were established by credible evidence, and conclude that the judge correctly applied the statutory test germane to such matters.
Defendants G.B. and C.J., Sr. (C.J.), were married on February 14, 1998. At the time, G.B. was pregnant with C.J., Jr., who was born on May 20, 1998; he was G.B.'s second child. C.J. and G.B. resided together after their marriage. Their relationship was immediately troubled by allegations of domestic violence. C.J. was alleged to have grabbed and dragged G.B. by the neck out of a friend's apartment in September 1998 and, a month later, was alleged to have physically accosted G.B. at her place of employment. They soon separated.
On June 13, 1999, G.B. gave birth to another child, fathered by someone other than C.J.*fn1 On September 16, 1999, a Virginia family court awarded G.B. legal and physical custody of C.J., Jr., subject to C.J.'s visitation rights.
On February 2, 2001, G.B. placed C.J., Jr., in foster care; she was then pregnant with her fourth child. C.J., who was stationed in Florida with the Navy, sought custody. On November 14, 2001, he was awarded custody of C.J., Jr. (hereafter, "the child"), then three years old.
In June 2002, C.J. was told by the Navy that he had tested positive for H.I.V. At that time, he returned to Virginia for medical treatment, and he and the child visited with G.B. That was the last contact G.B. ever had with the child.
C.J. returned to Florida. Since then and following C.J.'s relocation to New Jersey, referrals were made regarding his physical abuse of the child. In early 2005, C.J. signed a fifteen-day voluntary agreement, which placed the child with a paternal aunt. A few days later, the aunt indicated she was unable to continue to care for the child, who was then placed with a family friend, where he has remained until recently.
In light of injuries suffered by the child while in C.J.'s care in January 2005, the Division of Youth and Family Services (the Division) made a referral to the Union County Prosecutor's Office. In the meantime, the Division provided services to C.J. to address his parenting inadequacies, and conducted a search for G.B.
C.J. pled guilty to child abuse charges and, on January 6, 2006, was sentenced to a three-year probationary term. In January 2006, a Family Part judge also approved a permanency plan that called for the termination of C.J.'s parental rights. The Division remained unable to locate G.B. and commenced this guardianship action on March 22, 2006. Services continued to be provided to C.J. and evaluations were conducted. Therapeutic visitation was scheduled between C.J. and the child from May 2007 until the time of trial.
In July 2007, the Division located G.B. in Norfolk, Virginia, and the pleadings in this action were served upon her. On September 17, 2007, G.B. attended a case management conference; the judge required that she submit to a psychological evaluation before permitting visitation. Despite the Division's offer of bus or train tickets to G.B. to permit her to travel to New Jersey for the required psychological and substance abuse evaluations, G.B. only appeared for her defense psychological evaluation, which occurred at the same time of her only trip to New Jersey for the management conference. She made no other appearances in connection with this case.
The trial in this matter commenced on October 29, 2007. At the start of the second day of trial, the judge granted a motion to enter default against G.B., who failed to appear for trial or participate in the evaluations sought by the Division. The trial continued on that day and five more days thereafter. On January 24, 2008, Judge Rudolph N. Hawkins, Jr., rendered a comprehensive oral decision terminating parental rights. At the same time, he denied G.B.'s motion to vacate the default entered against her.
Both defendants appealed. In the single point of his brief, C.J. argues that the judge's determination was against the weight of the evidence. G.B. similarly argues in her Point IV that the judge's decision was against the weight of the evidence; she additionally argues:
I. THE FAILURE OF THE TRIAL COURT TO PROVIDE ALTERNATE MEANS FOR APPELLANT'S PRESENCE AT TRIAL DENIED APPELLANT HER PROCEDURAL DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
II. THE TRIAL JUDGE ABUSED HIS DISCRETION IN FAILING TO GRANT APPELLANT'S MOTION TO VACATE THE DEFAULT JUDGMENT AGAINST HER.
III. THE TRIAL JUDGE ERRED IN TERMINATING APPELLANT'S PARENTAL RIGHTS ON GROUNDS OF ABANDONMENT.
We find no merit in these arguments.
The applicable standard of appellate review requires that we defer to a trial judge's factual findings when they are based on credible evidence in the record unless convinced those findings 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); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). After close examination, we conclude that the record contains clear and convincing evidence to support Judge Hawkins's findings. We also find that the judge carefully and thoughtfully applied the correct legal standards to his factual findings in ultimately concluding that termination was required.
In reaching his decision, Judge Hawkins applied N.J.S.A. 30:4C-15.1a, which requires that, in order to obtain the termination of parental rights, the Division prove by clear and convincing evidence that:
(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 . . .;
(3) 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 and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
See also N.J. Div. of Youth & Family Serv. v. A.W., 103 N.J. 591, 604-11 (1986).
In light of the circumstances, it is appropriate to view separately the judge's determination to terminate defendants' parental rights.
A. Defendant C.J.
In finding that the requirements of the first prong had been satisfied regarding C.J., the judge first took note of the criminal charges brought against him in Florida in September 2002 for beating the child, for which C.J. received the equivalent of pretrial intervention. The subsequent criminal charges brought against C.J. in New Jersey for physically abusing the child, for which he pled guilty, also played a central role in the finding that the first prong had been met.
The judge implicitly recognized that the first and second prongs relate to and overlap with one another to create a standard that identifies the child's best interests. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999); N.J. Div. of Youth & Family Serv. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). In this regard, the judge considered C.J.'s involvement in the services provided by the Division in determining whether C.J. "is unwilling or unable to eliminate the harm." N.J.S.A. 30:4C-15.1a(2). He found that although C.J. attended many of the scheduled evaluations and programs: he just doesn't seem to get the essence and the meaning of what . . . these appointments . . . were all about.
Because he seems to want to justify his . . . conduct. There's an occasion in which he states his parents beat him, whipped him, or whatever the case may be. He talks about having, you know, be[en] brought up in a tough environment. He seems to reason away his behavior by demonstrating that it is necessary for the child to be brought up in a very difficult and tough society.
So even though he does attend his meetings, it doesn't seem in the minds of the psychologist[s] that they have the kind of impact that is -- that it was designed to have.
The judge also found, in considering the other factors relevant to the analysis of the second prong, that C.J. failed to demonstrate he could provide a suitable home for the child. Instead, as the judge described it, C.J.'s "attitude [is that] when the time comes . . . to provide a place for my son, then I'll work on it at that time."
In addition, the judge found that visitation was delayed because of the child's need for his own therapy in advance. Once therapeutic visits began, the judge determined that "they went reasonably well," and that C.J. and the child "[got] along fairly well." But the judge was particularly impressed -- what he described as "the key in this case" -- that the Division experts, upon whose opinions the judge relied, determined that C.J. still posed "a great risk of harm" to the child and that the child would be further harmed by a delay in permanency.
For the many reasons he provided, only some of which we have felt a need to mention, the judge concluded the first and second prongs were met by clear and convincing evidence, summarizing those findings in the following way:
[T]here's no question in the Court's mind that the child's safety, health, and development has been endangered by the parental relationship. You just can't be --you just can't beat your children up, no matter what you might feel the future holds for them. And I'm satisfied that that point has been the case, that [C.J.], with all due respect, has acted violently towards his son.
And there's certainly some evidence that [C.J.] has, under stressful situations, has tended towards violence. This is what happened between him . . . and [G.B.]. There's certainly evidence of . . . domestic violence . . . .
The psychiatrist and the experts seem to be of a view that -- that the personality of [C.J.] is such that it cannot change readily. I don't think they feel that in time it couldn't change. But I don't think . . . all three . . . psychologists, including his own, [get the impression] that he's ready for custody of this child at this time, from a parenting perspective.
And of course, when we think about permanency, we have to factor that in. This child cries out, this case cries out for permanency now. This child has -- has languished for most of his life. For nine years, he's nine years old, he'll be ten soon. And he -- he cries out for some kind of permanent relationship, some place that he knows he can call home. Some place where he can go where he knows somebody cares about him, and loves him, and will nurture him.
In considering the third prong, the judge found clear and convincing evidence that the Division had made reasonable efforts to provide services to help C.J. correct the circumstances that led to the child's placement outside the home and that alternatives to termination were considered. C.J.'s arguments with regard to this third prong were of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
The fourth prong requires a determination of whether "after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. The judge concluded that the evidence clearly and convincingly weighed in favor of termination. Among other things, the judge relied on the fact that the foster parent and the child had developed a very close bond. He also observed that the foster parent was willing to permit C.J. to have a continuing relationship with the child.
We are satisfied that the judge's finding on the fourth prong was supported by clear and convincing evidence. We have been advised, however, that the child was removed from the foster parent's home in May 2008, months after the entry of judgment in this matter. The Law Guardian argues that, as a result, we should remand to the trial judge for additional findings.
We examine the sufficiency of the judgment based upon the record that was put before the trial judge. The judge's findings were supported by adequate, substantial and credible evidence in the record. N.J. Div. of Youth & Family Serv. v. E.P., 196 N.J. 88, 104 (2008); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993). Having carefully reviewed the record, we can discern no sound reason for disturbing the judge's findings or to question the conclusions drawn from those facts as presented to him, and therefore affirm the judgment terminating C.J.'s parental rights.
We do not, however, foreclose further inquiry into the sufficiency of the judgment in the trial court. The fact that the child no longer resides with the foster parent may very well warrant a vacating of the termination of C.J.'s parental rights by way of subsequent proceedings pursuant to Rule 4:50. That depends, at least in part, on the weight the judge gave to the relationship between the foster parent and the child, as well as the foster parent's willingness to allow C.J. to remain part of the child's life, when he found that the fourth prong was satisfied. This is a matter that should first be put before the trial judge. We intimate no view of the merits of such an application.
B. Defendant G.B.
We find insufficient merit in G.B.'s arguments on appeal to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.
As we have observed, G.B.'s circumstances and relationship to the child are entirely different from C.J.'s. Early in the child's life, G.B. surrendered him to foster care, leading to C.J.'s seeking and obtaining custody of the child. C.J. brought the child to Virginia in 2002, which provided G.B. with the opportunity to once again see the child. She has had no contact with him since.
G.B.'s contention that she was denied procedural due process is without merit. She dropped out of the child's life upon placing him in foster care in early 2001 and had not seen him since June 2002. When finally located by the Division in the summer of 2007, G.B. was advised of what was required of her by way of evaluations and was given every opportunity to appear for those evaluations and the trial. The judge found credible a Division caseworker's testimony that bus and train tickets were offered to G.B. in order to allow her to appear in New Jersey in order to meet her obligations in this action. She declined.
As the judge understandably expressed, upon being contacted by the Division, one would have expected that G.B. would "be willing to do anything [she] could to get from Virginia to where [her] child was if there was a chance [to] continue and maintain the parental right." Instead, G.B. came to New Jersey only once and thereafter failed to appear either for the required evaluations or the trial.
In light of the undisputed fact that G.B. had ceased having any interest in having a relationship with the child since 2002, the judge was completely justified in denying the motion to vacate the default and in concluding that her parental rights should be terminated. See In re Guardianship of N.J., 340 N.J. Super. 558, 560-61 (App. Div.), certif. denied, 170 N.J. 211 (2001).