On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-264-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Lihotz and Messano.
In this parental termination case, D.C., the biological father, appeals from a judgment of guardianship terminating his parental rights to two-year-old, D.M.*fn1 He contends that the New Jersey Division of Youth and Family Services (DYFS) failed to establish that termination of his parental rights was in the best interests of D.M. and that he was denied his constitutional right to procedural due process. We disagree and affirm for the following reasons.
We start with the observation that D.C. was incarcerated for all but three months of the time between D.M.'s birth on January 17, 2006 and the entry of judgment on February 15, 2008. His criminal record includes convictions for burglary and violation of probation (1989), possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school zone (1994), possession of a controlled dangerous substance with intent to distribute and violation of probation (1999), possession of a controlled dangerous substance (cocaine) with intent to distribute within 1000 feet of a school zone (2004), possession of a controlled dangerous substance (crack cocaine) with intent to distribute within 1000 feet of a school zone (2004), receiving stolen property (2006), and possession of an imitation controlled dangerous substance with intent to distribute (2007). At the time of entry of judgment, D.C. was serving a three-year custodial term imposed on March 30, 2007, on his last conviction.
At birth, his son, D.M., tested positive for cocaine, benzodiazepine, and ethanol. DYFS was notified and the baby was placed in the hospital's protective custody. At a family team meeting on January 19, 2006, T.M. identified D.C. as the baby's father. Although she did not know where D.C. could be found, she provided DYFS with his full name, birth date, social security number and cell phone number.
Neither T.M. nor D.C. attended the January 23, 2006 custody hearing. DYFS presented evidence that T.M. had seven children in addition to D.M. and that her parental rights had been involuntarily terminated as to five of them. The remaining two children were not in T.M.'s custody. At the time, DYFS did not know D.C.'s whereabouts. As D.M. had been medically cleared for discharge, the Division requested that he be placed with a foster family. The Family Part judge granted that request, appointed a law guardian, executed an "Exception to the Requirement of Reasonable Efforts to Reunify" order relieving DYFS of its obligation to provide reasonable efforts to reunify D.M. with his mother, T.M., and placed D.M. under DYFS' custody and supervision. To date, D.M. continues to reside with his foster parents, with whom he has bonded and who desire to adopt him.
A fact-finding hearing was held on February 15, 2006, which D.C. did not attend, because he had not yet been located. At the hearing, T.M. admitted to a history of cocaine abuse and, in fact, to using cocaine shortly before coming to court that day. The judge determined that D.M. was an abused or neglected child and ordered that he remain in DYFS' custody. The judge also directed DYFS to provide services to T.M. and to initiate a search for D.C.
On March 3, 2006, DYFS learned that D.C. was incarcerated in the Union County Jail in Elizabeth, and a DYFS caseworker arranged for D.C. to be served with "the court documentation." Consequently, both T.M. and D.C. were present at the April 20, 2006 compliance review/permanency hearing, although D.C. was not represented by counsel. At that time, D.C. requested an attorney and a paternity test. In fact, that very same day, D.C. provided samples for a paternity test, which, on May 16, 2006, indicated a 99.99% probability that D.C. is D.M.'s father.
In any event, the DYFS caseworker testified, at the hearing, that reunification with D.C. was not possible, because D.C. was currently incarcerated and that, due to his incarceration, DYFS had not been able to provide him with services. The judge ultimately issued a permanency order, determining that foster home adoption was an appropriate and acceptable permanency plan for D.M.
On June 26, 2006, DYFS filed a verified complaint and order to show cause for guardianship of D.M. However, D.C. was not immediately served with the guardianship complaint and paperwork to request counsel because of difficulty locating him within the prison system. Apparently, D.C. had been released from prison into a drug treatment program at Logan Hall, so while his prison records indicated that he was released, he was still in State custody. Consequently, at the August 16, 2006 case management hearing, the judge ordered DYFS to continue efforts to find D.C.
D.C. was eventually served with the guardianship complaint on October 3, 2006, the day before the next case management hearing, which he attended. Although D.C. had not been formally assigned counsel by then, an attorney was present with him at the October 4 hearing. D.C. represented that he would be released from the Logan Hall drug treatment facility very soon and that he wanted to be the plan for D.M. He also complained that he had not yet received the results of the paternity test. As a result, the judge directed DYFS to provide D.C. with the test results immediately (which the agency did on October 19, 2006); schedule psychological and substance abuse assessments for D.C.; arrange for visitations; and follow up on relatives that D.C. offered as alternative placements, namely his aunt, P.P., who lived in North Carolina, and his mother, D.C.M.
As directed, DYFS made arrangements for the court-ordered assessments and visitations. The psychological assessment, which was performed by Dr. Minerva Gabriel on November 15, 2006, found D.C. to be in the below average range of cognitive functioning with a poor self-concept and self-esteem issues. Gabriel recommended that D.C. attend parenting skills training, obtain counseling to help with self-esteem problems, participate in supervised visitation with D.M., find steady employment, get his own apartment, and attend classes to prepare for a G.E.D. Catholic Charities, which performed the substance abuse assessment, recommended that D.C. participate in further face-to-face interviews with drug counselors and undergo random urine screens. A urine screen performed on D.C. on October 31, 2006, came back clean. On November 30, 2006, D.C. had his first, and only, visit with D.M.
D.C. was present at the next case management hearing on December 15, 2006, and represented by counsel.*fn2 The judge advised D.C. that he must follow Dr. Gabriel's recommendations. D.C. complained that he had not yet received the parenting skills training that he had requested in October and that he had no transportation. The judge then ordered DYFS to provide D.C. with a bus card,*fn3 and further instructed that, although D.C. was not a realistic option for D.M. while he was incarcerated, DYFS was now required to provide D.C. with services and to give him an opportunity at reunification. The judge signed orders to expedite an interstate referral to assess the appropriateness of placing D.M. with D.C.'s aunt in North Carolina. A urine screen performed on D.C. that day tested positive for marijuana and cocaine.
As ordered, in January 2007, DYFS prepared referrals for D.C. to attend psychotherapy and parenting skills training and to obtain random urine screens. D.C., however, did not attend any of the scheduled counseling sessions in January or February 2007. He also did not visit with D.M. Indeed, D.C. was arrested on January 5, 2007 on a drug charge and taken into custody, where he remained, serving a three-year term of incarceration upon his conviction for that offense until his release on October 14, 2008, while this appeal was pending.
While D.C. did not appear for the April 18, 2007 case management conference*fn4 because he was in the process of being transferred from the county jail to state prison, he was transported to the case management hearing on June 11, 2007, wherein the court was informed that the North Carolina authorities had ruled out P.P. as a possible placement for D.M.*fn5
At a subsequent case management conference on August 8, 2007, which D.C. could not attend because of local flooding, the judge noted that no psychological evaluation of D.C. had, of yet, been performed because of difficulty locating him in the prison system, and ordered that such evaluation be completed immediately.
Consequently, Dr. Barry Katz, a clinical psychologist, evaluated D.C. at the Mid-State Correctional Facility on August 29, 2007. Based on testing, Dr. Katz diagnosed D.C. with a narcissistic personality disorder, an antisocial personality disorder, limited coping ability, problems with anger and problems with rigidity. He concluded that D.C.'s antisocial personality disorder, ongoing criminal activity, and instability in housing and employment would present an unhealthy situation for a child. He opined that D.C. "would not be an appropriate parent, would not have the ability to parent a child correctly in the near or foreseeable future."
Due to some logistical breakdown, D.C. was not transported to the November 14, 2007 pretrial hearing, but his attorney was present, and both attended the final pretrial conference on February 1, 2008. The guardianship trial was conducted over a four-day period in early February 2008, wherein DYFS caseworker Kathy Williams testified that, in addition to visitation, DYFS offered D.C. parenting skills training, counseling, bus passes, psychological evaluations and substance abuse evaluations. As noted, D.C. had been referred to intervention specialists in January 2007; he did not attend any sessions because he was incarcerated at the time.
Dr. Joanne Schroeder, a clinical psychologist, testified concerning, among other things, a bonding evaluation she performed between D.M. and his foster parents. She concluded that D.M. had a secure attachment to his foster mother and a healthy relationship with his foster father. In her opinion, if D.M. were removed from his foster parents "he would experience despair, hopelessness, probably behavioral problems, acting out. And over the long term . . . he would, in all likelihood, develop oppositional, angry behavior." Stressing the importance of permanency in a child's life, Schroeder endorsed DYFS' plan that D.M. be adopted by his foster parents. On the other hand, Schroeder did not perform a bonding evaluation between D.M. and D.C., the latter conceding that there was no father-son bond.
On February 15, 2008, the trial judge rendered an oral decision, in which he considered each factor of the N.J.S.A. 30:4C-15.1(a) test, and, as applied to D.C., concluded that DYFS had established, by clear and convincing evidence, that termination of D.C.'s parental rights was in the best interests of D.M. Commenting on how the facts satisfied the best interests test, the judge stated:
Although it might not be a traditional situation, it's simply a situation of a parent not being there for the child the first two years of the child's life, not being there for the foreseeable future for the child and there being no indication that he [D.C.] is able to parent or would be any time in the future even when he is released.
This reasoning was reflected in the court's February 15, 2008 permanency order, which stated that it was not safe to return D.M. to the home because "[t]he father is incarcerated, a lengthy criminal record, unresolved drug history and was noncompliant with services when he was not incarcerated." Accordingly, a judgment of guardianship was entered that same day terminating the parental rights of T.M. and D.C. to D.M.
On appeal, D.C. raises the following issues:
I. DYFS FALED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE D.C.'S PARENTAL RIGHTS IN ORDER TO ...