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


May 7, 2009


On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Ocean County, Docket No. FG-15-27-08.

Per curiam.



Submitted April 22, 2009

Before Judges Cuff, Fisher and Baxter.

J.W. appeals from a May 30, 2008 order that terminated his parental rights to his three children, a son J.W., born November 10, 1996; another son, J.W., born October 12, 1999; and a daughter J.W., born January 22, 2005.*fn1 The order in question awarded guardianship of the three children to the Division of Youth and Family Services (DYFS) for purposes of adoption.*fn2 We affirm.


From the time J.W.'s older son was born in November 1996 until J.W.'s rights were terminated nearly twelve years later, he has been in and out of prison, abusing drugs and, by his own admission, unable to provide a safe environment for his three children.

DYFS involvement with this family began on November 26, 2002, when Brick police notified DYFS that the younger son had sustained a ruptured kidney and head trauma in a car accident when the child's mother, R.K., allowed him to sit in the back seat unrestrained. J.W. was not in the car. Because R.K. was emotionally unstable and appeared to be under the influence of drugs, DYFS sought information about J.W. to determine if he was a suitable caregiver. Upon contacting Brick police, DYFS learned that J.W. had a lengthy criminal history. As part of its investigation, DYFS asked J.W. to submit to a urine drug screen, which showed that he had recently used cocaine and heroin.

Although J.W. agreed to undergo a substance abuse evaluation, he failed to appear for the scheduled evaluation on December 19, 2002. Less than six weeks later, he was arrested for driving a stolen vehicle, and was incarcerated from March 2003 through January 2004. While J.W. was in prison, the younger son was bitten in the face by a dog while in the care of R.K. When DYFS determined that R.K. was still abusing drugs, the agency removed both boys and placed them in foster care.

In January 2004, upon J.W.'s release from prison, DYFS reunified the family by returning the two boys to R.K. and J.W., and appointed Family Preservation Services (FPS) to monitor both parents' drug use and J.W.'s problems controlling his anger. FPS worked with the family until October 2004. By then, R.K. reported that she and J.W. were no longer living together and that she and the boys were living with her mother. DYFS did, however, continue to monitor R.K.'s care of the children. The FPS therapist reported that the older son expressed considerable anger at his father for an earlier relapse that resulted in J.W. being locked up.

On March 22, 2006, J.W. was taken into custody and incarcerated because he violated the rules of his Drug Court probation by submitting someone else's urine sample when he knew his own sample would reveal the presence of drugs. He remained incarcerated until April 2007 when he was released to a halfway house, where he remained until April 2008.

His incarceration prevented J.W. from protecting his three children from the consequences of their mother's drug use. Specifically, in September 2006, while J.W. was incarcerated, DYFS learned that R.K. had left all three children alone in a motel room.*fn3 At that point, the older son was nine years old, the younger son was six, and the daughter was one. A week later, on September 25, 2006, DYFS received another referral, again alleging that the children were alone and running outside unsupervised in the parking lot of the motel. Upon arriving at the motel, the DYFS worker discovered that R.K. had been arrested and had left her children with her cousin. The worker spoke with the older son, who at the age of nine explained that it was his responsibility to take care of his brother and sister. He was aware that his father was in prison for drug use. After rejecting the maternal grandmother as a placement due to her prior criminal record, DYFS placed the two boys together in an approved foster home in October 2006. At the same time, DYFS placed the daughter in the custody of a maternal aunt. The children have remained in those placements ever since.

Shortly after the two boys began living with their foster mother, she reported that both suffered from severe behavioral and emotional problems. As a result, DYFS provided therapy for both children as well as an in-home behavioral assistant. The findings of those therapists are telling. During a February 7, 2007 assessment by ValuOptions, the therapist described the older boy's "problematic behavior," which included "temper tantrums, yelling and screaming, preoccupation of thoughts and nightmares associated with the death of his [maternal grandmother]," who had recently committed suicide. The therapist attributed the older son's uncontrollable anger to the "multiple disruptions" the child had experienced, which included "the incarceration of his father who was expected to be released from jail but received additional time due to another criminal charge received while incarcerated," as well as the removal from his mother and having been repeatedly "exposed to family violence," which included "physical abuse and domestic violence" between his parents.

The therapist's description of the younger son was even more troubling. He described the child's behavior as "explosive," which included choking people when angry, punching holes in walls and doors, hitting other children, tripping people, and generally losing his temper at the smallest provocation.

A few months later, during a caseworker's May 25, 2007 visit with the two boys at their foster home, the younger son, who was seven years old, reported that he "cannot wait to have sex," that he already knew about kissing and oral sex, and had seen his parents engaging in such activity.

When the caseworker next visited the home on June 11, 2007, the older son reported that he had written a letter to the judge begging her not to return him to his parents. In his June 6, 2007 letter, he wrote:

Dear Judge,

What I want to tell you is that I want to have a better life weather [sic] I go back home with my parents or with whoever you think is sutible [sic] enough for me. I want a better life than I had not once but twice in ten years. I want to live a life like normal people would. I want to go back with my parent[s] when both of them are back together and when they are going in the right path. I want you to tell my mom this.

I love her and I hope she is doing well enough trying to get me and my brother back and safe and doing the right things. Judge, when you decide my mom is doing well enough so I could go back, I want you to make sure we are going with the right person so I don't end up separated [from] my family again. I am counting on you!

Sincerely, [J.W.]

Within weeks of the older son sending that letter to the judge, a clinician at Thera Care, Tonya Sims, described the older son's "poor coping skills" and "verbally aggressive" behavior between peers, which often resulted in "physical altercations." Sims opined that the child's "aggressive behavior" was the result of two factors, being encouraged by his parents to behave in that manner, and his desire to protect his younger brother, who regularly initiated fights with peers.

Sims also reported that the older son "expresse[d] fear and distress after he interact[ed] with his parents during a visit or after telephone contact." She reported the older son's comment that "he feels happy when he is not thinking about his parents and while residing in his foster home." She also observed that when the older son returned from a visitation session with his parents, he felt "sad" and "depressed" by the pressure his parents exerted on him to report on the other parent's actions. Sims recommended that visitation be suspended. At the compliance June 2007 review hearing conducted shortly after Sims made that recommendation, the judge indefinitely suspended all visitation sessions between the children and J.W.

A psychologist at the Dorothy B. Hersh Regional Child Protection Center, Rachel Modiano, made similar findings in her June 7, 2007 assessment of the younger son. She also noted the younger child's report that: his father frequently hit him and the older son with a belt; he was present when police arrested his father for drugs; and that he and his brother were forced to take care of themselves and their younger sister because their parents were seldom around. In fact, Modiano noted the foster mother's report of the boys' statement that their parents taught them to break windows "to get into the house's kitchen" to steal food.

On November 13, 2007, DYFS filed a verified complaint seeking termination of both parents' parental rights. At trial, J.W. presented the testimony of Dr. Jesse Whitehead, Jr., who opined that J.W. "projects characteristics supportive of favorable parenting." While Whitehead acknowledged that J.W. also presented "areas of interest to [DYFS] that must be satisfied," which included "psychotherapy [and] social skills training," Whitehead opined that "[n]othing within these findings is suggestive [sic] that [J.W.] should forfeit an opportunity to parent his children" in the future.

DYFS presented the testimony of Dr. Alan J. Lee, who opined that J.W. was "at a heightened risk of substance abuse relapse and . . . criminal recidivism." Lee also characterized J.W. as emotionally immature, "prone to some irresponsible behaviors and attitudes," and unsuitable as an "independent caregiver to any minor child." He went further, observing that "if there was to be contact with any minor child or children that [J.W.] had, this would certainly need to be in a public or professional environment and under supervision."

Lee was also asked to describe the results of the bonding evaluations he conducted. He opined that both boys had achieved a sense of normalcy and stability in their lives as a result of the nurturing environment with their foster mother, and concluded that both would suffer severe, enduring and irreparable psychological harm if removed from her care. He made the same observations about the daughter's placement with her aunt.

In sharp contrast to his observations of the three children with their foster parents, Lee opined that neither boy had formed a significant or positive attachment to J.W. He also observed that both boys had been out of the care of their father for more than two years by the time of the bonding evaluation, and had not visited with him since February 2007 when R.K. brought them to jail for a visit. Lee also reported the younger son's comment that he did not want to see his father again and did not want to leave his foster mother's home.

Lee opined that the risk of any harm to either boy from the termination of J.W.'s parental rights was virtually nonexistent. As to the daughter, Lee observed that she barely knew her father. In light of the daughter's positive relationship with her caregivers, with whom she had developed a strong bond, Lee concluded that removing her from her current environment would cause significant harm.

J.W. testified. When asked on direct examination whether, if his children were reunited with him "today," he would be able to "provide for them," J.W. answered:

Today, nothing. Nothing. . . . Not nothing, but today no, I am not ready to have my children in my care today, not at all. This thing to me is not about getting my kids today. . . . This thing to me is about how do I get back in their lives and prove to them that daddy can do right, be right, live right, be responsible, not let them down . . . .

So today, no, I can't take care of my children because I don't have all the things necessary to do that. But I know myself as a person, I am a strong person, and I can change and build myself to that person and be able to do this.

When asked when he thought he might be able to provide a secure and safe environment for his children, J.W. did not provide a direct answer. Instead, he merely commented that "the only possible way is for me to be able to be in their lives constantly through visits, phone contacts." He acknowledged "that'll take some time."

At the conclusion of trial, in a comprehensive opinion of May 30, 2008, Judge Strelecki held that DYFS had satisfied by clear and convincing evidence the statutory requirements for termination of parental rights. She accordingly entered the guardianship order we have described.

In so doing, the judge rejected Whitehead's opinion. Specifically, she found Whitehead's testimony internally inconsistent, commenting that while Whitehead expressed the opinion that J.W. possesses all the traits necessary for successful parenting, Whitehead also acknowledged that J.W. was unable at the present time to serve as an independent caregiver for any of his children. Ultimately, the judge concluded that Whitehead was "talking about in the future" when he opined that J.W. could parent his children.

In contrast, Judge Strelecki credited the opinions expressed by Lee and accepted his conclusion that J.W. was unable to provide a safe, secure and nurturing environment for his children and that termination of his parental rights would not do more harm than good. The judge also pointed to the long periods of time that J.W. had been uninvolved with his children due to his incarceration. She accepted the testimony of the numerous therapists who noted the severe emotional harm both boys had suffered as a result of their relationship with their father. The judge also relied upon the poignant letter the older son had written begging her not to return him and his brother to their father.

On appeal, J.W. maintains: 1) the evidence was insufficient to satisfy the heavy burden of proof cast upon DYFS by N.J.S.A. 30:4C-15.1a; 2) the court's June 2007 order suspending J.W.'s visitation had so interfered with his ability to regain a relationship with his sons as to cause "an unfair guardianship trial;" and 3) the judge erred by not suppressing DYFS's bonding evaluation.


It is well-established that parents have a constitutionally protected right to the care, custody and control of their children. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed. 2d 551, 558 (1972). In addition, this "fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982).

But a parent's constitutional right to maintain the parental relationship is not absolute. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). Indeed, it is well-settled that the State has a parens patriae duty and obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Accordingly, if the State can demonstrate by clear and convincing evidence, A.W., supra, 103 N.J. at 612, that a child's physical or mental health would be jeopardized by continuance of the parent-child relationship, it may petition the court for dissolution of parental rights. Id. at 600.

Pursuant to N.J.S.A. 30:4C-15.1a, DYFS can obtain a termination of parental rights on the grounds that the best interests of the children require this course if each of the following elements is proven by clear and convincing evidence:

(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 or 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-15.1a(1)-(4).]

The statute "prescribes an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999). "The four criteria enumerated in the best interests standard 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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

"Appellate review of a trial court's decision to terminate parental rights is limited . . . ." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). The findings of the trial judge "are considered binding on appeal when supported by adequate, substantial, and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Therefore, we should not disturb the factual findings and legal conclusions of the trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963).

Having thoroughly reviewed the testimonial and documentary record, we are satisfied that DYFS established by clear and convincing evidence that J.W. has been unwilling or unable to alleviate the harm he has caused to his three children, that DYFS made suitable efforts to avoid termination of J.W.'s parental rights, and that such termination will not do more harm than good.

In particular, the record amply demonstrates that due to his numerous periods of incarceration, J.W. was unable for a prolonged period of time to provide the day-to-day nurturing that his children needed. As the Court observed in K.H.O., supra, 161 N.J. at 349, the inability of a parent to provide such nurturing over a prolonged period of time is a harm that is cognizable under the first prong of N.J.S.A. 30:4C-15.1a.

During the periods J.W. was incarcerated, he was also unavailable to protect his children from the harm to which they were subjected as a result of R.K.'s drug addiction. In particular, both boys were left to run unsupervised in the parking lot of a motel, one son was bitten in the face by a dog, and frequently the boys did not have enough to eat. On those occasions when J.W. was present, both children were subjected to watching J.W. beat R.K., and the younger son frequently witnessed sexual activity between J.W. and R.K. Moreover, Dr. Lee, whose opinion the judge credited, opined that the children's reaction to being reared by J.W. was a substantial contributing factor in the emotional and behavioral disturbances shown by both boys.

Unquestionably, the record supports a finding that J.W. --by virtue of his repeated incarceration, prolonged absence from his children's lives and poor parenting skills over a protracted period of time -- is unable or unwilling to eliminate the harm facing his children. Indeed, as we have discussed, J.W. conceded in his trial testimony that he was unable to care for his children, and when asked when he might attain such ability, he avoided answering the question. We thus agree with Judge Strelecki's conclusion that the first two prongs are satisfied.

J.W. confines his third-prong argument to the claim that DYFS "did not encourage, foster and maintain a bond between [J.W.] and [his three children]." The record reflects that DYFS offered him a substance abuse evaluation after he tested positive for heroin in 2002, yet J.W. spurned DYFS's efforts to secure treatment for him when he failed to appear for his substance abuse evaluation. Moreover, while it is true that J.W.'s visits with his children were halted by the court order entered in June 2007, J.W. has only himself to blame. The record demonstrates that his conduct during his visits with his children so disturbed them that the judge was forced to suspend all further visits. Unquestionably, while J.W. was incarcerated, DYFS faced enormous logistical obstacles to providing him with services. DYFS's overall efforts at reunification were not successful; however, as the Court observed in D.M.H., supra, 161 N.J. at 393, in its evaluation of the third statutory prong, "the parent's failure to become a caretaker for his children is not determinative of the sufficiency of DYFS's efforts at family reunification."

Additionally, DYFS satisfied its burden of considering alternatives to adoption when it thoroughly investigated numerous relatives, all of whom were rejected because of either a criminal record or a past history with DYFS. We thus agree with the judge's findings that the third prong was satisfied.

As to the fourth prong, which requires DYFS to establish that termination will not do more harm than good, Dr. Lee's comprehensive and thoughtful opinion amply demonstrates that the secure and affectionate attachment these three children have developed with their caregivers would override whatever minimal emotional harm might be caused by termination of J.W.'s parental rights. We need look no further than the older son's heartbreaking letter to Judge Strelecki begging her not to send him back to his father. The younger son has expressed the same view. The daughter has not, which is likely a result of her younger age and not having spent enough time with her father to develop an opinion on the subject. Accordingly, we are satisfied, as was Judge Strelecki, that termination of J.W.'s parental rights would not do more harm than good.

Last, we turn to J.W.'s contention that because he was unable to obtain his own bonding evaluation while incarcerated, the judge erred when she denied his motion to strike the bonding evaluation prepared by Dr. Lee. First, there is no evidence that J.W. ever requested a bonding evaluation while he was incarcerated, nor has he shown that his failure to present such an evaluation required the judge to strike the one submitted by DYFS. This argument lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).


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