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New Jersey Division of Youth and Family Services v. D.J.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 7, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
D.J.H., SR., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF D.J.H., JR., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FG-05-22-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 1, 2009

Before Judges R. B. Coleman and Simonelli.

Defendant D.J.H., Sr. appeals from an order of the Family Part, dated June 12, 2008, which terminated his parental rights to his son D.J.H., Jr. (David),*fn1 and awarded guardianship of the child to the Division of Youth and Family Services (the Division or DYFS) to consent to adoption. Based on our careful review of the record, we conclude that there is ample evidence to support the challenged order.*fn2 We affirm.

We summarize the relevant facts from the testimony of witnesses and documents admitted into evidence. Defendant and R.B. are the biological parents of David, born February 4, 1999. The Division first became involved with this family on May 19, 1999, when the New York Child Protective Services reported that defendant and R.B. had moved to New Jersey with David. At that time, there was a restraining order in New York, prohibiting defendant from having contact with David because defendant took David to a known crack house, purchased drugs and went to a park to use the drugs.

Defendant was incarcerated on October 31, 2005 for violating probation related to a prior arrest for possession of stolen property. Defendant left six-year-old David in the care of D.D., defendant's paramour. On November 18, 2005, the Wildwood Police Department raided D.D.'s home and found crack, cocaine and marijuana. Because D.D. was arrested and R.B.'s whereabouts were unknown, the Division took custody of David and placed him in foster care.

For the next thirty-one months that David was in foster care, defendant spent about twenty-two months in jail. During the nine months when he was not incarcerated, his contact with the Division was inconsistent and his participation in services was limited. On March 7, 2006, the court entered a judgment of neglect against defendant, who was released from jail shortly after and began supervised visitations with David. Defendant did not appear at the April 20, 2006, compliance review; but the court, nevertheless, ordered that defendant partake in psychiatric and substance abuse evaluations, which were scheduled for May 3, 2006.

On May 3, 2006, David M. Friel, M.D., completed a psychiatric evaluation of defendant. He did not diagnose defendant with a psychiatric illness and noted that defendant denied substance abuse. Dr. Friel determined that defendant "should follow the rules set forth by [the Division]," and that defendant was not a danger to himself or others. He recommended that David should be returned to defendant once defendant met all of the Division's criteria.

On June 19, 2006, defendant and D.D. were involved in a domestic dispute where defendant pushed D.D., causing her to fall over a railing and break her ribs. On July 8, 2006, the Middle Township Police Department arrested and later released defendant in connection with this altercation. Upon learning of the occurrence, a Division caseworker recommended that defendant attend either anger management or domestic violence classes. Defendant replied by cursing at the worker.

On June 28, 2006, defendant failed to appear in court for a compliance review. The court ordered defendant to undergo a psychological, a psychiatric and a substance abuse evaluation, enter into substance abuse treatment, and submit to random urine screenings.

On August 27, 2006, defendant and D.D. were involved in another physical altercation. Defendant admitted to pushing D.D. into a table. In addition to being arrested for this incident, defendant had two outstanding warrants. Because defendant could not make bail, he was transferred to Cape May County Jail, where he remained until November 2006.

On September 6, 2006, a Division caseworker met with defendant at the Cape May County Jail. The caseworker discussed possible relatives who might take custody of David, and explained that defendant's mother had not returned the caseworker's calls. The caseworker instructed defendant to contact the Division as soon as he was released from jail.

On September 20, 2006, the court ordered defendant to submit to domestic violence/anger management treatment, and it continued defendant's visitation. On November 16, 2006, defendant was sentenced to eighty-three days of incarceration in the county jail, in relation to the June 19, 2006 domestic violence incident, however, he was given credit for the eighty-three days he had previously served and was released.

On November 22, 2006, a Division caseworker and intern visited defendant, unannounced, at the motel where he was residing. Defendant explained that Social Services was paying for the room, and that he planned to obtain employment. The caseworker discussed the various services that defendant had to complete, such as drug and alcohol evaluation and anger management classes. Defendant informed the caseworker that he was no longer with D.D., and that he would like to obtain custody of David.

Subsequently, defendant missed two appointments for a drug evaluation and two scheduled visits with David. In addition, in January 2007, defendant's new paramour, H.H. reported to the police that he punched her in the face twice, following her refusal to have sex with him. Her injuries required stitches. While investigating the incident, the police found marijuana and crack cocaine in defendant's motel room. Also, on March 16, 2007, a woman by the name of A.W. reported to the police that defendant physically and sexually assaulted her. Later that month, the Division learned that defendant was in prison for two counts of aggravated sexual assault and aggravated assault causing bodily injury. This prompted the Division to file the instant guardianship action.

The Division pursued possible placement of David with relatives, however, the paternal grandmother stated that she could not care for David due to her work schedule. One of defendant's sisters was ruled out due to her criminal history. Defendant's other sister also was ruled out due to insufficient space in her home. The Division also considered R.B.'s mother and sister but ruled them out as unable to care for David.

On October 1, 2007 and February 25, 2008, defendant underwent psychological evaluations with Linda R. Jeffrey, Ph.D., who testified that during the two interviews, defendant contradicted himself several times. Dr. Jeffrey diagnosed defendant with depressive disorder; anxiety disorder; and personality disorder with depressive, negativistic, dependent, narcissistic, and antisocial features. Dr. Jeffrey could not rule out a diagnosis of substance abuse NOS. She also determined that defendant had a global assessment of functioning score of thirty five. At trial, Dr. Jeffrey explained that this score indicated that defendant had "significant impairment in several areas of functioning."

In light of this diagnosis, Dr. Jeffrey concluded in relevant part that defendant had significant emotional and personality problems. [Defendant] is likely to have serious difficulty with mood regulation, social relations, and adjustment. He is likely to be self absorbed, to lack personal insight and to lack empathy. He is likely to lack a sense of personal responsibility.

[Defendant's] mental health and adjustment problems are highly likely to decrease his parenting capacity significantly. He is not prepared to provide consistent, reliable, attuned and responsible safe care for his son. He is not prepared to serve as a model of rule governed behavior. He is not prepared to enforce rules and demands consistently and with appropriate monitoring of his son. He is not prepared to differentiate his needs from those of his child's and to make his child's needs his primary priority. He is not prepared to teach his son how to manage anxiety and frustration or to model effective strategies for managing anger, stress and the delay of gratification.

Dr. Jeffrey stated that defendant "professes a deep love for [David]," however he had "not organized his behavior and choices to be prepared to provide a safe, stable environment and psychological context for [David's] nurturing and development." She found that if David were placed in defendant's care he would be "highly likely to be at risk for harm." She could not recommend returning David to defendant's care, nor could Dr. Jeffrey recommend delaying a permanency plan for David. Dr. Jeffrey testified that it would be very difficult for defendant to utilize therapy to correct these issues because he must first recognize that he has parental problems. She continued that even if defendant could get over this obstacle, which would require a complete lifestyle change, it would still take at least a year, and probably two, for him to be in a position to parent David.

On February 25, 2008, Dr. Jeffrey conducted a bonding evaluation between defendant and David, who had not seen defendant often since defendant's latest incarceration. She noted that David did not refer to defendant as "Dad" or "Daddy," despite recognizing him, and she observed "little in [defendant and David's] interaction that would distinguish this as a father-son relationship." Dr. Jeffrey noted that David maintained an emotional distance, and found that it was unlikely that David "bases his sense of security in [defendant]."

Dr. Jeffrey concluded that David had "at best an insecure attachment to [defendant,]" which "is likely to be harmful to a child," as it "is likely to create problems for a child relating to people" and can also affect "the child's sense of basic worth, lovability, and confidence." She stated that severing this insecure attachment between defendant and David was "unlikely to cause [David] serious and enduring harm," and that any harm could be mitigated if David was placed with "an emotionally mature caretaker who can help him positively address his emotional needs and behavioral adjustment in a consistent, reliable manner."

In addition to the trial testimony of Dr. Jeffrey, the Division offered the testimony of caseworker Veronica Turner. Turner identified the Division's contact sheets for this family and verified that these sheets were made in the normal course of business at or near the time of the occurrence of the events described. Turner testified that the Division offered defendant a psychiatric evaluation, psychological evaluation, random urine screens, substance abuse evaluation, domestic violence treatment, and anger management. Turner stated that defendant complied with the psychiatric and psychological treatments, but not with a substance abuse evaluation or substance abuse treatment. Turner continued that defendant provided a few urine samples, but did not do so consistently, and defendant did not attend domestic violence counseling. Turner also testified that defendant had not participated in any meaningful services since his incarceration in March 2007. Defendant did not offer the testimony of any witness on his behalf.

On appeal, defendant raises the following arguments for our consideration:

POINT I: THE JUDGMENT OF GUARDIANSHIP TERMINATING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED, AS EACH PRONG OF THE TEST ESTABLISHED BY N.J.S.A. 30:4C-15.1a MUST BE MET BEFORE A PARENT'S RIGHTS TO HIS CHILDREN MAY BE EXTINGUISHED, AND THE EVIDENCE ADMITTED AT TRIAL DID NOT SUPPORT THE TRIAL COURT'S FINDING THAT THE FOUR PRONGS OF THE TEST WERE MET.*fn3

POINT II: THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE DIVISION'S CASEWORKERS TO SUBMIT INCOMPETENT EVIDENCE AT THE GUARDIANSHIP TRIAL.

I.

Our analysis of defendant's arguments is guided by certain well-established legal principles. Among these principles is the recognition that "[p]arents have a fundamental constitutional right to raise their children." N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002). However, such right is not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). Rather, parental rights are "tempered by the State's parens patriae responsibility to protect the welfare of children." Id. at 347 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). The best interests of the child ("best interests") standard governs this balance and has been codified in N.J.S.A. 30:4C-15.1. Ibid.

Pursuant to that statutory standard, in an action by the Division to terminate parental rights, the Division must demonstrate 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. 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 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. [N.J.S.A. 30:4C-15.1(a)(1)-(4).]

These "four 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.

Termination of parental rights is a severe state action in that it permanently severs "the relationship between children and their biological parents." J.C., supra, 129 N.J. at 10. Thus, when biological parents oppose the termination of parental rights, "the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." Ibid. The consideration involved in this inquiry is "extremely fact sensitive and requires particularized evidence that address the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348. Accordingly, "[a]ppellate review of a trial court's decision to terminate parental rights is limited, and the trial court's factual findings '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)).

Applying these principles to the case at bar, we find no ground on which to interfere with the trial judge's findings and conclusions.

For the first prong of the best interests test, we consider the harm arising from the child-parent relationship "that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 348, 352. "[T]he attention and concern of a caring family is 'the most precious of all resources.'" In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (quoting N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 613 (1986)). "A parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Ibid. (citing K.H.O., supra, 161 N.J. at 352-54).

In the case at bar, the record reveals defendant endangered David's health, safety and development when he became incarcerated in October 2005 and left David with D.D., a known drug user, who was arrested shortly after defendant. The trial court concluded that David's health, safety, and development were further endangered by defendant's (1) inability to stay out of jail for twenty-two of the first thirty-one months David was in foster care; (2) "series of unhealthy, if not sorted [sic], relationships with romantic partners during the time he was out of jail"; (3) lack of participation in the services the Division offered him; and (4) "failure to focus on suitable housing or employment" and inability to propose a timely reunification plan.

The record also demonstrates that defendant is unable to eliminate the harm that resulted in David's placement, and that delaying permanency will add to the harm.

The second prong of the best interests test "relates to parental unfitness," which "may be established in several ways," including: (1) "the parent is 'unwilling or unable to eliminate the harm' that has endangered the child's health and development in the first place" or (2) "the parent has failed to provide 'a safe and stable home for the child' and a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352. This prong "may be met by indications of parental dereliction and irresponsibility, such as the parent's . . . inability to provide a stable and protective home[.]" Id. at 353. Accordingly, "[a] delay caused by [the parent]'s failure to assume a responsible parental role in securing permanent placement" for the children is a harm in itself. Id. at 354.

At the time of the guardianship hearing, defendant was incarcerated and not expected to be released until at least April 2010, and possibly until February 2011. Moreover, the record supports the judge's conclusions that even if defendant is paroled in the near future, he has nothing to offer David, and there is no indication that he would not fall back into his old habits. Even if defendant did not fall back into those habits, he would have to obtain a job, keep that job, prepare a home, and undergo extensive and intensive therapy and treatment, which could take years to "bear fruit." According to Dr. Jeffrey, David needs "empathic, safe, consistent, and reliable care right now."

With regard to the third prong, the best interests test "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child." K.H.O., supra, 161 N.J. at 354. Such efforts must include, "'so far as practicable . . . welfare services to support and maintain the integrity of the family as a living unit.'" A.W., supra, 103 N.J. at 608 (citation omitted). As part of this inquiry, "the court must consider the alternatives to termination of parental rights and whether the Division acted reasonably." N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 434-35 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002) (citing N.J.S.A. 30:4C-15.1a(3)).

Division worker Turner testified at length about the services the Division offered defendant, and "his chronic inability to progress, mostly perhaps because he kept finding himself behind bars." The trial court found that the Division facilitated visitation while defendant was out of jail in 2006, however, this "fell by the wayside" when defendant allowed his dysfunctional relationship with D.D. to dominate his life.

The Division attempted to begin visitation again in early 2007, following defendant's release from jail, but defendant, whose whereabouts were unknown until March 2007, was incarcerated again before this could happen. The record supports, clearly and convincingly, that the Division made reasonable efforts to provide defendant with services towards reunification and investigated every possible relative. As the trial court noted, the time defendant spent incarcerated and incapable of acting as a parent, "were essentially self-inflicted" and do not give defendant "a pass . . . on the theory that there was nothing [he] could do." Notably, even when defendant was not incarcerated, he failed to avail himself of services and to maintain continuous contact with the Division.

The fourth prong of the best interests standard seeks to determine whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1. The focus "is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 108 (2008). This prong "'serves as a fail-safe against termination even where the remaining standards have been met.'" Ibid. at 88 (quoting N.J. Div. of Youth and Family Servs. v. G.L., 191 N.J. 596, 609 (2007)).

Because of the inherent risk to children stemming from termination of parental rights, "the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties." K.H.O., supra, 161 N.J. at 355. Rather, the court's inquiry is one of comparative harm, for which the court must consider expert evaluations of the strength of the child's relationship to the biological parents and the foster parents. Ibid. (citing J.C., supra, 129 N.J. at 25). Thus, typically, to satisfy this prong, the Division should "offer testimony of a 'well qualified expert who has had full opportunity to make a comprehensive, objective and informed evaluation' of the child's relationship with both the natural parents and the foster parents." N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (quoting J.C., supra, 129 N.J. at 19). In a recent decision, we stated that there are "very few scenarios in which comparative evaluations would not be required." N.J. Div. of Youth and Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009).

The Supreme Court has recognized "that terminating parental rights without any compensating benefit, such as adoption, may do great harm to a child." E.P., supra, 196 N.J. at 109 (citing A.W., supra, 103 N.J. at 610-11). Therefore, the court must consider the permanency plan presented for the child. A.W., supra, 103 N.J. at 610-11. "Naturally, there will be circumstances when the termination of parental rights must precede the permanency plan[,]" for example, "a young adolescent might not be adoptable at the time of the termination proceedings." Id. at 611.

In the case at bar, Dr. Jeffrey testified that David has an insecure attachment to defendant, which is harmful to a child, and that maintaining this relationship inhibits David's ability to form secure attachments and gives him the dream that defendant could someday be his "daddy." Dr. Jeffrey advised against delaying a permanent plan for David. Defendant offered no evidence or expert testimony to dispute Dr. Jeffrey's opinion.

The trial court noted that David did not have a prospective adoptive family, but found that he had a dedicated caseworker who was "truly committed" to finding him a permanent home. Accordingly, the court concluded that this caseworker, in connection with the many systems the Division has in place to aid in finding adoptive parents, provided David with a better chance at a positive outcome than he would have if the court waited for defendant "to realize that they have thrown away a precious treasure."

As mentioned above, defendant will remain incarcerated and unable to care for David until at least April 2010, and possibly until February 2011. Dr. Jeffrey testified that it would be very difficult for defendant to correct the psychiatric problems that limited his parental ability, and even if he could, it would still take at least a year, and probably two, for him to be in a position to parent David. Dr. Jeffrey's opinion is consistent with the record and with defendant's lack of progress towards reunification during the two and one-half years that David was in placement.

Defendant's history of criminal acts and violent behavior is remarkable. Throughout the history of this case, defendant failed to show that he was willing or able to change his lifestyle and become a parent for David. The Division, on the other hand, is working hard in an effort to find David a permanent home. Termination of defendant's parental rights to David gives David a better chance at permanency and, according to expert opinion, it will not cause David severe and enduring harm.

II.

Defendant claims that the trial court abused its discretion by allowing the Division to submit its documentary records as evidence without properly authenticating them. Specifically, defendant contends that the Division's certifications were not specific enough. We find that defendant's contention lacks merit and does not warrant discussion. R. 2:11-3(e)(1)(E).

We note, however, that "[a]s a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991); see also Purdy v. Nationwide Mutual Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982). We grant substantial deference to the trial judge's discretion on evidentiary rulings. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000).

"[The Division] shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants. Conclusions drawn from facts stated therein shall be treated as prima facie evidence, subject to rebuttal." R. 5:12-4(d). N.J.R.E. 803(c)(6) affords a business record exception to the hearsay rule and states:

A statement contained in a writing or other record of acts, events, conditions, and, subject to [N.J.R.E.] 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the source of information of the method, purpose or circumstances of preparation indicate that it is not trustworthy. [N.J.R.E. 803(c)(6).]

A party does not have to provide extrinsic evidence of authenticity as a condition precedent to admissibility for "[a] document purporting to bear a signature affixed in an official capacity by an officer or employee of the State of New Jersey or of a political subdivision, department, office, or agency thereof." N.J.R.E. 902(a).

Defendant cites no authority to support his contention that the Division's certifications had to be more specific. The challenged records were accompanied by a certification signed by a Division employee, a certification signed by the record keeper for the institution that created the record or the seal of the county court that issued the record. Furthermore, Turner authenticated these records through her testimony. We conclude that the trial court did not abuse its discretion in admitting the evidence.

Affirmed.


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