On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-72-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 21, 2010
Before Judges Payne, C.L. Miniman, and Waugh.
Defendant G.J. appeals from a Judgment of Guardianship entered April 28, 2009, in which the trial court terminated his parental rights to his minor children A.A.J. (fictitiously, Adelina), E.J.J. (fictitiously, Emmanuel), and N.E.J. (fictitiously, Nadine). Because the Division of Youth and Family Services (the Division) proved the four-prong best-interests standard of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence, we affirm.
Between 1996 and 2007, S.S. (the mother), born March 27, 1981, gave birth to seven children: A.F. (fictitiously, Alberto), born in 1996; Nadine, born in 1999; Emmanuel, born in 2001; Adelina, born in 2003; D.D. (fictitiously, Deanna), born in 2005; F.M. (fictitiously, Fabiana), born in 2006; and T.T. (fictitiously, Tameeka), born in 2007. Defendant-appellant G.J. is the father of Nadine, Emmanuel, and Adelina. G.J. was first incarcerated on January 1, 2002, and has been in prison continuously since August 2003 pursuant to a conviction for first-degree possession of a controlled dangerous substance.
The Division first became involved with this family in 2003 when it received a referral from Trinitas Hospital in Elizabeth stating that the mother tested positive for marijuana at the birth of Adelina. The mother admitted to smoking marijuana and not receiving pre-natal care and agreed to undergo a drug assessment. Adelina remained in the mother's care after a home visit by the Division. G.J. did not reside in the home at that time. The mother's substance-abuse assessment was completed on July 3, 2003, and it revealed that the mother had been abusing marijuana since she was eighteen.
Two more referrals were made on April 2 and June 8, 2004, but neither allegation was substantiated. However, the mother tested positive for marijuana after each referral. A fourth referral was made in early 2005 after the mother gave birth to Deanna. The mother admitted to using drugs during the pregnancy. The Division recommended a drug assessment and psychological evaluation. It then effected a Dodd*fn1 removal of Deanna from the mother's custody. Two days later, the Division was granted care, custody, and supervision of Deanna and care and supervision of Alberto, Nadine, Emmanuel, and Adelina. The mother shortly thereafter tested positive for marijuana on January 19, 2005, and was referred to Apostles' House for assistance in managing as a single parent.
On February 8, 2005, at the return of the order to show cause, the mother was found to have abused or neglected her children due to her history of marijuana use. Dr. Diane W. McCabe, Ed.D., conducted a psychological evaluation on February 16, 2005, finding that the mother used marijuana to self-medicate, was depressed, and had limited self-esteem. Deanna was returned to her mother and siblings on February 25, 2005, and the mother began receiving aid from Apostles' House and The Bridge, with services terminating in September 2005.
A fifth referral was made on October 20, 2005, but the allegation of neglect was unfounded. However, in subsequent court-ordered testing, the mother tested positive for marijuana at review hearings on October 25 and December 14, 2005, and again on February 15 and April 5, 2006. At the last hearing, the judge instructed the Division to file for removal of the children if the paternal grandmother was not with the children every day. A sixth referral was made on May 31, 2006, but the allegations were again unfounded. The mother thereafter gave birth to Fabiana and subsequently missed an appointment with Proceed on September 8, 2006, for substance-abuse treatment.
G.J. first appeared in court during a compliance review on January 10, 2007. G.J. had been incarcerated since August 2003 and remained incarcerated when his parental rights were terminated. The mother was ordered to undergo a substance-abuse evaluation and receive treatment at Proceed. The mother failed to attend her appointments on January 12 and 19 and February 16 and 23, 2007. She was terminated from the program.
On March 30, 2007, the police responded to a 9-1-1 call at the mother's home and found all six children home alone but otherwise in good health. The allegations of neglect were substantiated. The Division executed a Dodd removal and the mother was arrested on some outstanding warrants and charged with endangering the welfare of her children. The children were placed with relatives and the Division was subsequently granted care, custody, and supervision of the six children. After entry of an order to show cause, the mother and G.J. appeared before the court and the mother stipulated she left her children, ages eight months to ten years, home alone.
A seventh referral was made on September 7, 2007, by the foster mother of Nadine and Emmanuel. The mother did not show up for a scheduled visit on September 6 and Emmanuel became very upset. Six-year-old Emmanuel subsequently slapped the foster mother's niece, punched the foster mother, pulled down his pants, and told his foster mother to suck on his penis. The foster mother no longer wanted the children in her home, but agreed to keep Nadine if Emmanuel was transferred to a new foster home.
Starting in September 2007, the mother received referrals to parenting skills classes, a psychological evaluation, and outpatient drug treatment. The evaluation indicated the mother had problems with addiction, depression, and anxiety. Further psychological and/or psychiatric treatment was recommended. Another compliance review was held on October 11, 2007, at which the judge ordered custody to remain with the Division for all the children except Alberto and ordered the mother to undergo psychological and substance-abuse treatment. G.J. appeared at this review, and he was allowed to send letters to his children through the Division.
On December 3, 2007, Family and Children Services (FCS) notified the mother that she had been absent from parenting classes and needed to start attending. On December 26, 2007, the Division learned that the mother had given birth to Tameeka a few months earlier. The Division effected a Dodd removal of Tameeka, and the police arrested the mother on an outstanding warrant in connection with a child-abuse charge. Neglect was again substantiated. On December 28, 2007, the return date of an order to show cause, the judge appointed a Law Guardian for the children and Tameeka was placed in the custody and care of the Division. On January 24, 2008, the court approved a plan for termination of parental rights and adoption for all children except Alberto, who was residing with his father. G.J. appeared at this hearing. The mother stipulated she hid her pregnancy from the Division and failed to meaningfully comply with services.
An eighth referral was made on February 26, 2008, after Emmanuel had threatened individuals at school with knives, guns, and baseball bats, and then threatened to set a roll of paper towels on fire to burn down his foster home. Emmanuel had to be removed from the foster home; counseling and new placement were recommended. On February 21 and March 24, the mother again tested positive for marijuana. Two days later, she missed her scheduled psychiatric evaluation at FCS. On April 2 the Division filed a complaint and order to show cause why the parents' rights to the six youngest children should not be terminated. On April 14, G.J. appeared in court and was served with the complaint. The judge ordered the Division to retain custody, the mother to undergo psychological and psychiatric evaluations, and G.J. to undergo psychological and bonding evaluations. The mother failed to appear for her psychiatric evaluation on April 23, her second failure.
The mother's compliance with services thereafter was sporadic and she continued to test positive for marijuana. On August 25, 2008, the court entered a case management order in which the mother and G.J. were again ordered to undergo psychological and bonding evaluations. The court also ordered the Division to provide visitation for G.J. with his children every six weeks.
On November 7, 2008, the court entered a permanency order against the mother, G.J., and the other biological fathers approving the Division's plan for termination of parental rights and foster home adoption. A case management order entered the same day continued G.J.'s visitation. On November 10, 2008, Choi Reese, a Division family service specialist and case manager, sent a letter to Riverfront State Prison requesting an appointment for the children to visit G.J. A visit with the children was scheduled for November 14, 2008.
Dr. Barry A. Katz, Ph.D., conducted several bonding evaluations between April 3, 2008, and February 10, 2009. These included bonding evaluations of the mother with her children and the children with their foster parents. Dr. Katz found that "many of the children in this case began to form bonds with their current caretakers. These bonds have begun to solidify to the point that removing the children from their bonded caregiver would cause negative consequences for the child and his/her development." Nadine expressed her attachment to her foster mother and conflict over who her family would be. Emmanuel needed permanency in his life. Adelina formed a strong bond with her foster mother.
Dr. Katz also conducted a psychological evaluation of G.J. He stated it was "clear . . . that [G.J.] does not have the capacity at this time to parent his 3 children, and that this parenting deficit is highly unlikely to change in the near or distant future." He cited G.J.'s "extensive history of antisocial behaviors including the possession and distribution of illicit drugs." Dr. Katz stated that G.J. has problems with interpersonal relationships that affect his ability to form meaningful attachments. He pointed out that G.J. had had no contact with his children at that time for at least four years, and "[h]e choose [sic] to continue to not have any contact with his children despite a court order permitting him to be able to correspond with the children through the Division worker." There were no indications that G.J. would implement any changes in his "chronic criminal behavior." Dr. Katz concluded that "the data unfortunately is clear in that [G.J.] does not have the capacity to provide for [the children's] emotional or physical needs." Based on these evaluations, Dr. Katz recommended that the court terminate the parental rights of the mother and G.J. to their children. He stated, "The chronic parenting deficits of both parents combined with the needs of the children for stable and secure attachments indicate that it would be in the best interests of the children to be able to pursue their current caregivers to develop the bonds and attachments that they need."
Dr. Elizabeth M. Smith, Psy.D., conducted adoptability evaluations of Nadine and Emmanuel on January 15 and 17, 2009. Dr. Smith interviewed both children and reviewed various records. Nadine appeared driven by her desire to reunite her family and strongly preferred reunification. Having begun visiting G.J. in prison, Nadine indicated that "[w]hile she is 'just getting to know him again, she does not see yet him [sic] as a source of safety and comfort.'" Dr. Smith opined that Nadine and Emmanuel "would be able to form new attachments and be successfully adopted if the court decides to terminate parental rights."
Dr. Katz also conducted a bonding evaluation of Emmanuel with his foster mother on February 10, 2009. Emmanuel was cautious in forming a bond with his foster mother, but indications were that he would over time. Dr. Katz indicated that if he were removed, Emmanuel would be "traumatized by feelings of loss and unmet dependency needs." Dr. Katz recommended keeping Emmanuel in his current placement because removing him "would likely cause significant and permanent harm to his development."
A guardianship trial was held on March 3, 9, 16, and 17, 2009, before Judge Jo-Anne B. Spatola. The mother executed an identified surrender of her parental rights to Tameeka, Fabiana, Adelina, Emmanuel, Nadine, and Deanna, and was dismissed from the litigation on March 3, 2009. The trial then proceeded against G.J. and Deanna's father, who is not the subject of this appeal. Notably, G.J. was incarcerated at the start of the trial, as he had been for the duration of the Division's involvement with the children.
The first witness to testify for the Division was Dr. Katz, who testified as an expert in psychology without objection. Dr. Katz testified consistently with his report of the psychological evaluation of G.J. and the bonding evaluations of the children. Dr. Katz pointed to G.J.'s voluntary lack of contact with his children for several years, and his history of antisocial behavior, criminal activity, and minimal understanding of parenting issues and the emotional needs of the children to support his conclusion that G.J. was not fit to parent his children. Although G.J. expressed a desire to care for his children, he lacked the skills and emotional capacity to do so. Dr. Katz testified that the lack of contact with the children caused them to eliminate G.J. from their descriptions of their family members. He said that the children "expressed no understanding of [G.J.] in the concept role of father." Although a bonding evaluation of the children with G.J. was not conducted, Dr. Katz said one was not necessary because the length of time G.J. had no contact with the children resulted in the children not viewing G.J. "in any sense as a member of their family, past or present."
Regarding the bonding evaluations, Dr. Katz testified that even the most capable person would have great difficulty in breaking the bond Adelina had with her foster mother and creating a new one given Adelina's circumstances. Dr. Katz said that G.J. was so far from that level of capability that Adelina's life would be almost a "worst-case scenario" if he attempted to parent her. Similarly, removal of Nadine from her caretaker would result in ongoing emotional and attachment problems that G.J. would not be able to help her overcome. Emmanuel had formed an attachment with his foster mother such that removal would result in severe emotional problems that G.J. would not be able to help him overcome. Emmanuel never mentioned his father as an attachment figure. Dr. Katz testified that if the children remained in foster care until G.J. could address his parenting issues, the children would suffer a "very negative impact" on their psychological development, both present and future, because it would deprive them of stability and attachments and show them that bonds are meaningless.
Dr. Katz opined that adoption by the children's current caretakers would be in their best interests, particularly considering that there was no unwillingness on the part of the foster parents to commit to the children on a permanent basis. He stated that if G.J. had been provided with two visits, each an hour long, the children likely would have identified G.J. as their biological father, but he did not see that as changing any of their ...