November 12, 2009
STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.C. AND J.A.C., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-86-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 14, 2009
Before Judges Fuentes and Simonelli.
Defendant J.C. is the biological father of two boys, A.C., currently eleven years old, and J.A.C., currently ten years old. He appeals from the judgment of the Family Part terminating his parental rights to his sons. He argues that the Division of Youth and Family services (DYFS or Division) failed to: (1) establish, by clear and convincing evidence, all four statutory prongs in N.J.S.A. 30:4C-15.1; and (2) consider kinship legal guardianship (KLG), as defined in N.J.S.A. 3B:12A-1 to -7, as an alternative to this guardianship action. As an overarching argument impugning the tenor and fairness of the trial court proceedings, defendant also claims that the trial court improperly considered his HIV positive status as a per se disqualifier to his ability to care for his children.
After reviewing the record before us, we reject these arguments and affirm. We are satisfied that DYFS presented sufficient competent evidence to warrant the termination of defendant's parental rights. We are equally satisfied that neither DYFS nor the trial court viewed defendant's health issues as per se indicators of his inability to parent these two children. That being said, the court was entitled to consider defendant's chronic and severe substance abuse history in determining what would be in the best interest of these two boys.
These are the relevant facts. Defendant J.C. and R.P.*fn1 had a total of four children together. Two older boys, W.C., born in 1991, and Jf.C, born in 1993, are not part of this appeal. The younger boys, A.C. and J.A.C., are the children involved in this guardianship case. The Division's first contact with this family occurred in 1987. From this point until 2006, the Division received at least eight separate referrals alleging child abuse by either J.C., R.P., or both. Seven of the referrals made during this nine-year period did not involve the two boys who are the subject of this guardianship action.
The events that gave rise to this litigation occurred on June 25, 2006. On this date, emergency room staff at Clara Maass Medical Center contacted DYFS to report allegations of sexual molestation involving A.C. and J.A.C. The boys' maternal aunts had brought the children to be physically examined after they revealed that they had been sexually assaulted by their older brother Jf.C. After an initial investigation, the Division determined that an emergency removal without court order was warranted and obtained physical custody of all four boys pursuant to N.J.S.A. 9:6-8.29.
Although the allegations of sexual molestation was the event that triggered the Division's involvement, the subsequent investigation also revealed other serious problems. Overwhelmed by R.P.'s impeding death, J.C. had ceased to function as a parent to his children, abdicating that responsibility to his then twelve-year-old son Jf.C. As a result, the living conditions in the home were chaotic, and the children were left to fend for themselves. R.P. died on June 30, 2006, five days after Clara Maass Medical Center's referral to DYFS.
With respect to the allegations of molestation, J.C.'s response was one of disbelief. According to DYFS records, J.C. was incredulous when first confronted with the allegations of sexual misconduct by one of his sons against the other.*fn2
On June 27, 2006, DYFS filed an Order to Show Cause and complaint alleging inadequate parental supervision. Specifically, DYFS alleged that:
There has been a breakdown of family systems and it seemed that [J.C.] was not capable of caring for the children. While he was doing the best that he could, the children's medical needs, educational needs, daily needs such as feeding and clothing are marginally being met. These issues have been a concern of the family. [Jf.C.] has taken on family responsibility that was not appropriate for him to be responsible for due to him having a learning disability. [sic].
The court granted the Division's application for legal custody of A.C., J.A.C. and Jf.C. The two younger boys were temporarily placed with their maternal aunts, and Jf.C. was placed in the custody of another family member. The court ordered J.C. to attend substance abuse counseling and cooperate with other services made available to him by DYFS. J.C. missed the first substance abuse assessment appointment. He attended a rescheduled appointment on October 16, 2006, which confirmed that he had a twenty-year history of heroin addiction. The test also revealed that he had used heroin on three separate occasions in the past thirty days.
Starting in October 2006, DYFS also arranged for J.C. to participate in counseling; he was non-compliant and services were terminated in January 2007. J.C. also failed to remain in contact with his children. Throughout the course of this case DYFS arranged for J.C. to see the children on a bi-weekly basis. J.C. stopped seeing the children in December 2007 and did not resume contacts until September 2008.
The psychologists who examined J.C. also opined that he was incapable of resuming his parental role. In addition to his substance abuse problem, J.C. is also significantly intellectually limited, had extremely poor insight into the circumstances that led him to this predicament, and underestimated the cognitive difficulties he was facing due to his deteriorating health status.
During this same time period, A.C. and J.A.C. adjusted well to their new environment. A.C. has been diagnosed as suffering from a hyperactivity disorder. Although the boys' emotional attachment to their biological father remains, they have also developed a strong bond with their aunt and her family. Overall, the children have thrived in their new custodial arrangement.
Both sides presented expert testimony as to what would be in the children's best interest. The experts agreed that J.C. has lived a troubled life and has severe cognitive and emotional limitations. The experts differed only with respect to their recommendations for permanency. The Division's expert opined that complete termination of parental rights was the only viable approach. The psychologist called by defendant recommended KLG as the best suitable alternative. According to this witness, this approach would allow for continued communication between J.C. and the children, thereby affording the opportunity for reunification if circumstances warranted.
Against this evidence, the court found that termination was warranted. In so holding, the court also expressly rejected KLG as a legally viable option. The trial judge noted that the Division has offered counseling services, has offered a visitation plan; however, [J.C.] due to his being angry with the Division has apparently absented himself from a consistent presence either . . . with services or with counseling offered by the Division . . . and additionally [by] failing to maintain contact by participating in regular contact for [sic] the children. He has, in essence, abandoned, not in a legal sense, but abandoned his responsibilities as a parent to maintain himself as connected with the case plan.
With respect to KLG, the court noted that the individual proposed by J.C. (his sister) had not responded to DYFS requests for information necessary to conduct the requisite background checks. After repeated failed attempts to contact this person, the Division sent her a "ruled out" letter, formally informing her of the action taken. In addition, the maternal aunt (the current foster parent) had agreed to adopt the children upon the court's order of termination.
We are satisfied that the court's judgment of guardianship met all of the legal requirements, and tracked the statutory requirements of N.J.S.A. 30:4C-15.1. In re Guardianship of K.H.O., 161 N.J. 337 (1999); In re Guardianship of D.M.H., 161 N.J. 365 (1999). The court's factual findings are also well supported by the record. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009).
DYFS proved, by clear and convincing evidence, that defendant is unable to parent these two children, and his continued paternal association with them will expose these children to significant harm. His inability or unwillingness to address his chronic and severe substance abuse problem has been clearly established. The record also shows that DYFS made repeated efforts to provide J.C. with services to address his addiction and improve his parenting skills, to no avail.
DYFS also explored, in good faith, J.C.'s suggestions for alternative arrangements. The trial court correctly held that KLG is not legally available as an alternative to termination here because J.C. did not offer a suitable candidate, and the current pre-adoptive parent is willing and able to adopt the children. New Jersey Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 509 -510 (2004).
It is clear that the children have adjusted well to their new home. Under these circumstances, termination of defendant's parental rights is in the best interest of these children; continued contacts with defendant will expose them to greater harm.