October 30, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF E.F., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-97-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2009
Before Judges Stern, Sabatino and Collester.
Defendant father R.F. appeals from the September 16, 2008 judgment entered by Judge John J. Callahan which terminated his parental rights to his minor son, E.F. We affirm.
On October 17, 2007, the New Jersey Division of Youth and Family Services (DYFS or the Division) filed a complaint against R.F. as natural father and G.B. as birth mother to terminate their parental rights to their two minor sons, I.F., born on December 23, 1994, and E.F., born on May 28, 1997. G.B. never responded to the complaint and did not appear at the trial. Her whereabouts are unknown. No appeal is taken from the judgment terminating her parental rights.
R.F. responded to the complaint against him, and Judge Callahan conducted a trial on September 2 and September 3, 2008. The Division's involvement with the family began on December 29, 1994, when a referral was received from St. Elizabeth's Hospital that G.B., then age 35, had given birth to I.F. The referral was the result of information that the mother was using drugs and received no prenatal care. I.F. was born premature and tested positive for cocaine and methadone. He was admitted to the neonatal intensive care unit, received treatment for drug withdrawal and was diagnosed with fetal drug dependency and a heart murmur. The DYFS investigation substantiated abuse by the mother to her young son, but the child was released to G.B.
On May 28, 1997, another referral was made by St. Elizabeth's Hospital to DYFS stating that G.B. gave birth to a 5 pound, 15 ounce baby boy named E.F. A toxicology report revealed that E.F. was born addicted to barbiturates, and he was placed in a neonatal intensive care unit, remaining there for 26 weeks. After investigation of the referral, DYFS found that G.B. neglected E.F. Once again the child was released to live with G.B.
Further referrals were made to DYFS indicating that the children living with R.F. and G.B. were neglected and that the parents were using drugs. A DYFS worker visited the home on April 2, 2001. She observed that the children were barely clothed although the inside temperature was frigid due to a broken boiler. The caseworker noted a steady stream of people entering and exiting the home. Upon inquiry, G.B. admitted using drugs and stated that she wanted help for her addiction. G.B. and R.F. were then scheduled for substance abuse evaluations, but they did not appear.
On May 24, 2001, Judge Marie P. Simonelli entered an order for removal of E.F. and I.F. from their home due to imminent danger to their health and placing the two children in the immediate custody, care and supervision of DYFS. E.F. and I.F. were placed in the same foster home, the first of a series of placements in foster and group homes. Both boys exhibited temper tantrums and aggressive behavior that resulted in the disruption of their placements. Accordingly, they were placed in a series of group homes and foster homes where they received therapy to address their issues of anger. At the time of trial, I.F. was placed in a residential group home appropriate for his age. E.F. lived with foster parents until he was forced to leave due to physical problems of the foster father. On November 27, 2007, he was admitted to a treatment home where he remained at time of trial. Because a learning evaluation of E.F. disclosed that he was extremely intelligent with a high IQ, he was enrolled in a private academy focusing on academics.
The record discloses that neither G.B. nor R.F. regularly visited E.F. or I.F. from the summer of 2001 to the summer of 2004. In June of 2004, DYFS was unable to locate R.F. at an address provided by G.B. However, in August of 2004, R.F. called I.F.'s group home and asked to speak with him, but he was not permitted to do so because the staff director was not sure that R.F. was the father of I.F.
DYFS was unable to contact R.F. until November 7, 2005 when they located him at a Brooklyn address. A visit was arranged with R.F. and his father in December 2005. Thereafter, he began visiting I.F. and E.F. on a biweekly basis, but his visitation was short-lived, and once again DYFS was unable to locate him. As of June 16, 2006, it was reported that R.F. was "still missing". After the trial in this matter commenced, R.F. attended few court dates which Judge Callahan said indicated a low interest level by R.F. in the case. While R.F. has maintained contact with I.F., Judge Callahan found that "the record is barren" as to "the father's interest or considerations regarding his son [E.F.]".
It is noted that DYFS made efforts for placement of I.F. and E.F. with relatives of G.B. and R.F. but that these efforts were unsuccessful. In the summer of 2003, both G.B. and R.F. executed surrenders of their parental rights to I.F. and E.F. for the purpose of adoption by R.F.'s mother who lived in Canada. The case was then transferred to the DYFS Adoption Unit. The caseworker assigned secured passports for the two boys but was unable to place them with the paternal grandmother because she was unwilling to participate in the DYFS foster care process. Judge Callahan specifically found that the paternal grandmother became indifferent to the placement of the children with her due to her failure to confirm that her home was appropriate for the children. Because the parents' voluntary surrenders were restricted to the paternal grandmother, the surrenders were vacated through the filing by the Division of its complaint for guardianship.
Testifying as an expert for the Division, Dr. Albert R. Griffith conducted psychological and bonding evaluations of R.F. and his sons in December 2007 and August 2008. He noted that R.F. served six years in the United States Air Force, developing a skill as an electrician. His work record was good prior to his involvement with drugs. Since that time, he has experienced long periods of unemployment interspersed with short-term or part-time jobs. Prior to August 2007, R.F. lived for a year in a shelter and thereafter in a furnished one-room residence in Manhattan where he paid $237 a month rent in addition to receiving government rent assistance. In the course of the interview, Dr. Griffith asked R.F. if his salary could support his family, and R.F. responded that he is "comfortable and content" at present. Dr. Griffith stated that R.F.'s living situation was "unstable" and that reunification with one or both of his sons was not foreseeable in the near future. He added that R.F. was "highly avoidant" in meeting his responsibilities to his children and that, while he cared for his children, he was unable or unwilling to take the steps necessary to be a parent for them.
After completing his bonding evaluation, Dr. Griffith testified that in his opinion I.F. was bonded to his father but could not be reunited with his father because R.F. could not parent him at present. In contrast, E.F. was found not bonded to his father because he does not rely upon him for nurturing, security or direction. Due to the absence of an attachment between E.F. and R.F., Dr. Griffith concluded that "it cannot be said that [E.F.] would suffer lasting harm if he were no longer to see R.F." Dr. Griffith further found that both boys were strongly bonded with each other and that a placement together was preferable if it could be accomplished.
In the course of his testimony, Dr. Griffith opined that the probability of I.F. being adopted was "pretty close to zero" and that the prospects for adoption for E.F. were "relatively minor" although he had a better chance than I.F. in being placed in a long-term foster care family due to his age, intelligence and good behavior record.
Beth Watkins, an Exchange Specialist with the Division's Office of Adoption Operations, testified that the majority of children in New Jersey available for adoption after termination of parental rights were African-American boys over the age of 8 with special emotional or physical needs. There are potential adoptive homes interested in such children, but they generally only want children legally free for adoption. She added that due to E.F.'s younger age, there were more adoptive homes available than for his older brother.
DYFS caseworker Natisha Hill-Barnes testified as the caseworker for E.F. She stated that E.F.'s present foster mother is not interested in adopting him but is committed to keeping him until an adoptive home is found. She stated that E.F. is now "stable" but that I.F. is not and must be stabilized before placement in a treatment home. She said that E.F. said that he wished to be adopted but that I.F. was reluctant. Furthermore, she stated that it was clear to E.F. that his father favored I.F.
No witnesses were called by the defense, and on September 3, 2008, Judge Callahan conducted an on-the-record interview with I.F. in the presence of the law guardian. I.F. stated that he had been in contact with his siblings, especially an older brother about to attend college. He expressed his desire to be reunited with his father and added that E.F. was reluctant because "he doesn't know his father that well." E.F. chose not to speak with the judge, and the Division's permanency plan for him was select home adoption.
On September 16, 1008, Judge Callahan rendered his oral decision noting that, since G.B. had not appeared or been seen for several years, he terminated her parental rights. He then considered the testimony in light of the Division's burden to prove by clear and convincing evidence that the following standards have been met:
1. The child's health and development must have 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 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.
Judge Callahan found that the Division had satisfied the statutory four-pronged test by clear and convincing evidence and that termination of R.F.'s parental rights to E.F. was in the best interest of the child. In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999).
In contrast, Judge Callahan held that in light of Dr. Griffith's evaluation and the weight given to the stated preference of a child of I.F.'s age that the State had not met its burden so that R.F.'s parental rights should not be terminated as to his older son. No appeal was taken by the Division from this determination.
R.F. argues on appeal that the judgment for guardianship of E.F. should be reversed because there was not clear and convincing evidence to substantiate any of the four prongs of the statutory test necessary to terminate his parental rights. In this regard, we first note that the four prongs are not independent but overlap each other in setting forth the standard identifying the best interests of the child. K.H.O., supra, 161 N.J. at 348. See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 606 (1986). Our scope of review in a non-jury case of this nature is limited. In re Guardianship of J.N.H., 172 N.J. 440, (2002). Factual findings of the trial judge will be upheld if supported by adequate, substantial and credible evidence. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Rova Farms Resort Inc. v. Investors Inc. Co. of Am., 65 N.J. 474, 484 (1974). We are also obliged to defer to the trial court's evaluation of the "credibility, qualifications, and the weight to be accorded" to expert testimony. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). Furthermore, we will defer to the trial court's evaluation of the facts unless the Court "went so wide of the mark" that a mistake must have been made. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007).
After careful review of the record, we have determined Judge Callahan's factual findings and legal conclusions are adequately supported by the record as a whole and are dispositive of the arguments set forth by R.F. on appeal. R. 2:11-3(e)(1)(A).
Finally, Judge Callahan considered the fact that the brothers will be in separate residences, at least for the present. He noted that the Division has arranged for visitation between them in the past. We agree that every effort should be made for the brothers to have frequent contact. In the event either one is adopted, the Division should work with the adoptive family to continue the visitation.
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