On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-34-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 14, 2009
Before Judges Carchman, Lihotz and Ashrafi.
Defendant A.R. appeals from a final judgment of the Family Part terminating his parental rights and granting guardianship of his daughter K.R.S. to plaintiff New Jersey Division of Youth and Family Services (DYFS). We affirm.
These are the relevant facts adduced at the trial. K.R.S., born on July 14, 2006, is the child of defendant and J.S. At the time of K.R.S.'s birth, J.S. was in methadone treatment, and as a result, K.R.S. tested positive for methadone. DYFS had contact with J.S. when she was pregnant with K.R.S. as a result of aberrant comments about aborting the child, hospitalization, confirmed drug use, misuse of alcohol, as well as physical abuse by defendant. The precipitating event for DYFS's continued involvement with the family occurred as a result of an October 30, 2006 automobile accident wherein J.S. was arrested for driving while intoxicated while K.R.S. was in the vehicle. Neither party suffered any injury, but J.S.'s blood tests revealed a blood-alcohol reading of 0.23.
Defendant acknowledged he and J.S. had engaged in a heated argument, he "had a feeling that she was drunk," and he knew she had left with K.R.S. He did not seek to find them after they left or alert police that J.S. might be driving while intoxicated with his infant daughter in the car. After learning of the accident, defendant walked to the hospital. Upon arrival, he was interviewed by police, who discovered there was an outstanding warrant for his arrest on immigration violations. Defendant was placed under arrest, at which time DYFS decided not to "pursue him as a caregiver for [K.R.S.]."
J.S. confirmed the verbal altercation and stated she was attempting to take K.R.S. to her mother's house. She claimed responsibility for her actions but seemed unable to appreciate their consequences:
[J.S.] admitted to speeding and losing control of the car. She understands that she could have killed her baby and is upset. She didn't understand why the baby was [not] going to be returned to her custody tonight. . . . She said that she usually doesn't drink, but was stressed about fighting with [defendant] . . . . She first didn't want to say goodbye to the baby, but changed her mind.
Because both parents were arrested, DYFS effectuated an emergency removal of K.R.S. pursuant to N.J.S.A. 9:6-8.29 -.30. Defendant and J.S. were personally served notice of the removal but refused to sign the corresponding acknowledgment. At this time, DYFS spoke with J.S.'s sister, T.S., and the maternal grandmother, E.S., to explore their acceptability as a temporary placement for K.R.S. T.S. and E.S. lived together, and a home evaluation was conducted, which found their residence "cluttered." Otherwise the home was conducive to raising a child. A DYFS records check revealed a referral and case against E.S. which was closed in 1993 due to lack of substantiation. All other criminal background checks came back negative, and K.R.S. was placed with E.S. and T.S. on October 31, 2006.
Pursuant to N.J.S.A. 9:6-8.30, on November 2, 2006, DYFS petitioned for and received a court order providing DYFS with legal custody of K.R.S., while E.S. and T.S. obtained physical custody. The court also ordered that defendant and J.S. be allowed "reasonably liberal" supervised visitation with K.R.S. Defendant was incarcerated at the time of this hearing, and the implementation of the order as to him was not specifically addressed.*fn1
In March 2007, J.S. provided a DYFS caseworker with the name and address of defendant's mother in Mexico and asked that she "be explored as a placement."*fn2
Meanwhile, J.S. showed significant improvement throughout much of 2007. At a compliance review hearing in October, the court permitted J.S. to resume overnight visitation with K.R.S. The resulting Permanency Order approved DYFS's plan to reunify K.R.S. with J.S. in three months.
However, J.S. suffered a relapse that continued unabated. J.S.'s participation with rehabilitation services became sporadic, as did her scheduled visitation with K.R.S. T.S. agreed to adopt K.R.S. if reunification could not be accomplished. On January 28, 2008, DYFS began pursuing termination of J.S.'s and defendant's parental rights. At a February 2008 permanency review hearing, the judge concluded that reunification would no longer be appropriate and ordered DYFS to submit a new permanency plan for K.R.S. within forty-five days. He also ordered that J.S., who did not appear in court, submit to a hair follicle test, which proved positive for heroin and morphine.
On March 12, a DYFS caseworker met with J.S. to inform her of the result of the test and that the Division would move for termination of her parental rights. At a permanency hearing held on March 20, DYFS presented its new permanency plan seeking to terminate both J.S.'s and defendant's parental rights and allow T.S. to adopt K.R.S. The judge approved this plan, and DYFS proceeded to file a complaint and order to show cause.
In September 2008, the court and counsel addressed the issue of defendant's appearance at trial. Counsel requested an order requiring transport for trial. The judge was informed that if the Sheriff's office transported defendant from his federal holding facility, he would be released for that purpose.
On October 23, 2008, defendant sought to delay trial to schedule an expert examination. The Law Guardian objected to any further adjournment, noting that:
I'd like to know what a psychological evaluation is going to provide for us that's going to make any difference . . . . He is unavailable and he's been unavailable . . . to parent this child. And he certainly won't be able once he's deported[.] . . . . I'm not quite certain what a psychological evaluation is going to do.
In the meantime, this child, who has now been in placement for 24 months, to adjourn this trial yet again . . . would be incredibly harmful to her and would serve no purpose.
On January 26, 2009, J.S. executed an identified surrender of K.R.S. Since defendant was in federal custody, and the trial was considered a civil matter, the court had "extreme difficulty" in obtaining a writ to release defendant for trial, and even if the court did obtain a writ, it is unclear that it would have been honored. Instead, the court arranged for defendant to be available via telephone hook-up for one hour. The trial was originally scheduled for January 28, 2009, but defendant was unable to appear by phone on that date, and the matter was rescheduled to February 18, 2009.
After entering his appearance, defense counsel moved for an adjournment because defendant "feels that he cannot be effectively represented via telephone." Judge Critchley denied this motion on the grounds that applicable federal regulations would have required defendant to complete his sentence before making any physical appearance, and this was not projected to occur until December 18, 2009.*fn3 Additionally, the likelihood of defendant's deportation made the prospect of his appearance unlikely.
At trial, DYFS caseworker Ana Vergara indicated that she had met with defendant in prison on October 20, 2008. During that meeting, Ms. Vergara updated defendant as to the status of the case, and defendant, through counsel, provided Ms. Vergara with the name, address and telephone number of his mother in Mexico. Defendant asked that his mother be explored as a possible placement for K.R.S. Ms. Vergara conceded that DYFS did not want to place K.R.S. elsewhere because she was "very bond[ed] with her family right now." However, the caseworker did pursue defendant's mother as a possible placement.
Ms. Vergara also discussed the findings of a psychological evaluation of defendant and a bonding evaluation of E.S., T.S. and K.R.S. conducted by DYFS, both of which recommended K.R.S. remain with T.S. Ms. Vergara "encourage[d] the caretakers to respond to [defendant]" and understood that "they did, indeed . . . respond to his letters and provide photos[.]"
Defendant then related to the court his actions on the night of the car accident, the circumstances surrounding his arrest and incarceration as well as his plans for K.R.S. upon release and likely deportation. He acknowledged his awareness of J.S.'s intoxication when she left the apartment with K.R.S. the night of the crash, the two previous reported incidents of domestic violence with J.S. and his need ...