February 22, 2010
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.A.J., E.J.J., AND N.E.J.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 attachment issues. In Dr. Katz's opinion, terminating G.J.'s parental rights would have no effect on the children.
Dr. Katz testified on cross-examination that G.J. told him that he planned to have his mother care for the children until he was released from prison, at which time he would obtain full custody. He also testified that the children had a high need for stability, and if they continued experiencing changes in their homes, they would be at risk of a reactive attachment disorder. Dr. Katz stated that while Emmanuel was only forming a bonding relationship with his foster mother due to reservations about being adopted, at no time did Emmanuel mention G.J. "as an option for him as an attachment figure or even as someone in his life that he wanted to kind of explore as an attachment figure."
The second witness to testify was Reese, the Division adoption case manager assigned to this case. When Reese first received the case in 2008, G.J. was not having any contact with the children even though he was allowed to by mail, except when he sent Christmas cards in 2008. At the time of the trial, G.J. received one-hour Division-supervised visits with his children at Riverfront Prison once every six weeks. The first visit was in November 2008, which was the first time the children saw G.J. in "a couple of years." G.J. had not previously requested visits with the children. During the November 2008 visit, the children appeared nervous and quiet. G.J. attempted to converse with the children, asking them about school, favorite foods, hobbies, and toys. Adelina wanted to leave and all the children denied G.J.'s request for a hug or high five. In response to Adelina's question as to why he was in prison, G.J. responded that he made a bad mistake and was serving a punishment for a bad choice, which was selling drugs. G.J. continued trying to get to know the children before the visit concluded.
Subsequent to the visit, Reese received no reports of any reaction from Adelina. Emmanuel's foster mother reported that Emmanuel was quiet and did not discuss the visit. Nadine's foster mother reported that Nadine seemed confused but did not verbally express any feelings. The children indicated to Reese that "it didn't matter if they went or did not go" to see their father for the second visit.
The second visit occurred in January 2009, approximately six weeks after the first visit. During that visit, the children appeared more comfortable, and Nadine and Emmanuel gave G.J. pictures they had made for him. G.J. asked the children various questions. After initially denying his request, Emmanuel and Nadine gave G.J. a hug, but Adelina did not. The children did not express any signs of discomfort or distress when leaving.
While the Division had custody of the children, it provided G.J. with a psychological evaluation. However, it did not offer any other services while G.J. was incarcerated because he could have received the services on his own in prison. According to Reese, the Division does not have the ability to send individuals to the prison to provide services, such as counseling or substance-abuse treatment. The Division also concluded that G.J.'s mother was unable to care for the children because of her financial instability and the small size of her one-bedroom home. She could not afford a bigger apartment without monthly Division financial assistance to pay the rent. All three chil- dren stated that they did not want to live with G.J.'s mother because she "beat them." No other members of G.J.'s family indicated that they wished to be a placement resource for the children, including an aunt and uncle G.J. had suggested. The Division sent G.J.'s mother a rule-out letter on March 2, 2009, after it was translated into Creole for her benefit, although it had ruled her out months earlier in the fall of 2008.
Regarding the children, Reese testified that Nadine has academic and therapeutic needs and that she expressed a desire to live with her mother, but never her father. Emmanuel has academic, behavioral, and emotional issues, and he indicated a desire to be with his mother, but never his father. Adelina has academic needs, and she has never mentioned G.J. to Reese. The Division had no concerns about the children's foster homes and adoption was the goal for all three. The children see each other every other week for one hour, and the foster parents are willing to maintain sibling contact upon adoption.
Upon questioning by the court, Reese explained that the two-month delay between entry of the court order and the first visit with G.J. in November 2008 was because a family member of the prison administrator had died and there was no one else at the prison to set up the appointment. The second visit occurred more than six weeks later because the administrator was absent during the holidays in December.
G.J. also testified at the trial. He had been convicted of first-degree possession of cocaine and had been imprisoned since August 2003 serving a ten-year sentence with a mandatory minimum of five years. He had been at Riverfront Prison since 2005. He testified he was denied parole on August 13, 2009, and was next scheduled for release on August 31, 2010. He admitted he had been incarcerated four times in all; he was twenty-seven at the time of trial. Before his incarceration, G.J. testified he had custody of his children on the weekdays, and he and the children lived with G.J.'s mother and grandmother in Elizabeth. The children would all sleep in his bed and he would sleep on the couch. The mother took the children on weekends and took full custody upon G.J.'s incarceration. He admitted that the mother's drug problem was the reason the children did not live with her and acknowledged that this did not stop him from allowing the children to stay with her on weekends. He telephoned the children every other weekend until 2004, when he lost contact with them.
G.J.'s plan for his children was for them to reside with his mother until his release. He did not view his mother's hitting of the children as a problem, saying "everybody hit they [sic] . . . kids when they do something wrong, right?" G.J. denied saying to Dr. Katz that women were stupid and that he hates women that lie. G.J. disagreed with Dr. Katz's conclusion that he was unfit to parent his children. He testified that he had a job set up with a moving company in Edison, although his cousin is the only person at the company with whom he spoke about the job. G.J. will live with his mother after his release. G.J. said he loves his children "to the fullest." Regarding his feelings toward them, he testified:
How do I feel? I feel like I lost mad contact to my kids, and by them being stressful for what's going on, it's a lot of wrongdoing. And that right there make[s] me feel sad for them 'cause they too young to see all that commotion going on in their life. But still, I want them to know they g[o]t a father that still love[s] them, and they got a grandmother that care[s] about them to the fullest.
G.J.'s mother has lost contact with the children. If the children are placed with G.J., he would meet their needs by "being a better role model as a father, go to work, take them to school, play games with them, be a whole father figure for them as a family."
On cross-examination, G.J. stated he was arrested and incarcerated four times before his current conviction. This contradicted Dr. Katz's report that G.J. said he was arrested five times as a juvenile, convicted ten to fifteen times, and arrested twice as an adult.*fn2 G.J. also knew that the mother had a drug problem in 2002, and that was why she only had the kids on weekends. G.J. never petitioned the court to prevent the mother from having custody while he was incarcerated because he "didn't want the court to get involved with our situation." He also never requested visitation rights while he was incarcerated. G.J. has been denied parole three times because he acted up, got in fights, committed institutional infractions, had a prior criminal record, and for other reasons.
G.J. has completed several programs while in prison, including Alcoholics Anonymous, Narcotics Anonymous, and courses in anger management, business management, and life skills. G.J. is on a waiting list for a commercial driver's license class. The life skills course included parenting lessons.
Dr. Smith testified on behalf of the Law Guardian as an expert in psychology. She testified as to her findings in her adoptability study. Dr. Smith testified that G.J. did not fill much of a role in Nadine's life. She thought Nadine was adoptable, although Nadine strongly preferred to be with her mother. Dr. Smith saw Emmanuel as a very fragile, sad, and confused child. Emmanuel only perceived G.J. as someone he was going to visit, and G.J. did not fill any role in Emmanuel's world. Dr. Smith "didn't see any evidence that [Emmanuel] was thinking about [G.J.] more or seeing [G.J.] as any kind of future plan." Dr. Smith thought Emmanuel was adoptable.
Dr. Smith testified on cross-examination by the Division that Nadine "absolutely" has a strong need for permanency at this point in her life. According to Dr. Smith, permanency is the first step for Nadine and Emmanuel to take in overcoming their psychological concerns. She also testified that adoption would be better for the children than to remain in the unsettled situation in which they were at that time.
Upon questioning by the judge, Dr. Smith opined that the Division's plan for Nadine and Emmanuel to be adopted by their current foster parents was "a reasonable and positive plan for both of them." Dr. Smith said that the children required support at home in dealing with their problems. Dr. Smith testified that the children did not know G.J. and they could not transition safely into his care. She did not think termination of G.J.'s parental rights would result in trauma to the children because there was no attachment to him. Nadine's parent will have to be fully capable of dealing with Nadine's special needs.
Dr. Smith believed placing the children with the foster parents was a better alternative to placement with G.J.
Judge Spatola placed her decision on the record on April 28, 2009, terminating G.J.'s parental rights to Adelina, Emmanuel, and Nadine and placing the children in the guardianship of the Division. She made exhaustive findings of fact, citing to the documentary record and recounting the trial testimony, both of which we have briefly summarized above. The judge discussed the applicable statutory and case law standards for termination of parental rights and applied those standards to the facts she had found.
Judge Spatola concluded that the Division had satisfied all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Specifically, with respect to the first prong, the judge found that G.J. harmed his children by allowing them to spend three days per week with their mother, whom he knew to be a drug addict, when they were no more than four years old. She found that G.J.'s criminal activity and his negative behavior while incarcerated, which resulted in denial of parole twice, caused G.J. "to be unavailable to his children when they were in need of responsible parenting." She found that the children were neglected and emotionally abused, with the older children being forced to care for the younger ones. She described the specific impact of G.J.'s negative behavior on his children and concluded, "Clearly, these children's health and development have suffered as a result of all this impermanence in their lives."
As to the second prong, the judge found that G.J. had done nothing to facilitate his return to society to help his children in their time of need. In all the time he was incarcerated, he wrote to them only when he sent Christmas cards on one occasion. The judge relied heavily on the undisputed testimony of Dr. Katz regarding G.J.'s negative personality traits and the doctor's opinion that G.J. "d[id] not have the capacity at th[at] time to parent his three children, and that this parenting deficit [wa]s highly unlikely to change in the near or distant future." The judge also relied on Dr. Katz's report that there was "no data to indicate there would be any change in [G.J.'s] chronic criminal behavior," for which the judge noted G.J. took no responsibility. Additionally, the bonding evaluations established that separating the children from their foster parents would result in enduring harm whereas they would suffer little loss if their parental ties to G.J. were terminated.
As to the third prong, the judge found that the Division had provided extensive services to the mother over an extended period of time, to no avail. She found that it was not possible for the Division to provide services to G.J. beyond visitation and a psychological evaluation due to his incarceration during the entire time of the Division's involvement with the family. The judge concluded that it was entirely reasonable to provide services to the custodial parent so long as it did not exclude the non-custodial parent, citing In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999). Furthermore, G.J. did receive the benefit of multiple programs while incarcerated and there was no need for the duplication of services.
Judge Spatola also observed that G.J.'s plan to have his mother care for the children until his release was not possible because she was unable to care for the children at that time due to financial instability and the lack of suitable housing and she had already been ruled out by the Division. Other paternal relatives did not respond to the Division's requests for information. G.J. himself was unable to parent the children for the reasons expressed by Dr. Katz and thus there was no alternative to termination of parental rights. None of the current foster parents were willing to be a kinship legal guardian, but they were all willing to adopt.
As to prong four, Judge Spatola observed that comparative bonding evaluations are usually done, but in this case there was little likelihood that Adelina, Emmanuel, and Nadine had any significant bond with G.J. due to his long absence from their young lives. All three children were adoptable and each had formed or was forming a bond with his or her foster parents, disruption of which would further harm the children, harm which G.J. "would not be able to remediate." As Dr. Katz opined, "even the most skilled, nurturing caretaker would have problems . . . helping these children recover from the loss of their current foster mothers." She found that "G.J. is not such a caretaker." The judge thus concluded that termination of parental rights was in the best interests of the children. This appeal followed.
G.J. contends that there was no clear and convincing evidence to support any of the four statutory prongs governing the termination of parental rights. Specifically, he urges as to the first prong that the judge erroneously presumed harm to the children from his incarceration where it was the mother's conduct that caused the removal of the children. He points out that there was no evidence that the mother was using drugs when he had physical custody of the children or that she cared for them improperly during that time. Contrarily, he argues that "he did take the initiative to take full custody, and not leave the children with their mother on a full time basis."
As to the second prong, G.J. contends his scheduled release date was November 2009 and his mother was willing to have temporary custody until he was released or the foster placement could be continued until then.*fn3 He urges that the judge should not have relied on the opinions of Dr. Katz respecting his ability to parent because the facts of the case establish that he did so successfully before he was incarcerated. Furthermore, he never displayed any sexist behavior toward his daughters.
As to the third prong, G.J. urges that the Division failed to exercise reasonable efforts to provide him with visitation because it brought his children to the prison only twice between August 25, 2008, and the time of trial, thus precluding the formation of a stronger bond with them. He contends that the Division never assessed what services he required, such as a sub- stance-abuse evaluation and parenting classes. He also argues that the Division did not adequately explore alternatives to termination of parental rights; the rule-out letter was not sent to his mother until the day before trial; the Division did not assist his mother in securing appropriate housing; and he was prejudiced by Dr. Katz's opinion that he was not capable of parenting based on only one interview.
Regarding the fourth prong, defendant asserts that it is not sufficient to conclude that the children will be better off with their foster parents. He argues that a bonding evaluation with his children was indeed necessary and the judge should not have relied on Dr. Katz's opinion to the contrary. Further, it was the Division that prevented the children from renewing their bonds with him by failing to provide adequate visitation. He contends that all of these errors require reversal.
The scope of our review of a Family Part judge's termination of parental rights is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Those findings may not be disturbed unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
As a general rule, we should also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 279. Yet, "where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (internal quotations omitted); see also, N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omitted). Deference is still appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). However, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Parents have a constitutionally protected right to enjoy a relationship with their children. E.P., supra, 196 N.J. at 102; In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed in the termination of parental rights. K.H.O., supra, 161 N.J. at 347. To balance these constitutional rights against potential harm to the child, when applying for guardianship, the Division must institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on the Division to establish its case by a clear and convincing standard. Ibid.; In re Guardianship of J.N.H., 172 N.J. 440, 464 (2002); see also P.P., supra, 180 N.J. at 511 ("On appeal, a reviewing court must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court.").
The Supreme Court first articulated the best-interests standard in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-12 (1986). The Legislature subsequently amended Title 30 in 1991 to conform with the court's holding in A.W., codifying the standard at N.J.S.A. 30:4C-15.1(a). See L. 1991, c. 275, § 7. The statute provides that the Division must prove:
(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).]
These four factors are not independent of each other; rather, they are "interrelated and overlapping . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." State Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citation omitted), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive" requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (citation and internal quotation omitted).
Under the first prong of the best-interests standard, the Division must prove by clear and convincing evidence that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "The harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. The "potential return of a child to a parent may be so injurious that it would bar such an alternative." A.W., supra, 103 N.J. at 605. The absence of physical abuse or neglect is not conclusive; indeed, serious emotional and developmental injury to the child should be regarded as injury to the child. Ibid. Moreover, trial courts must consider the potential psychological damage of reunification with a parent. Ibid. The "psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977); see also In re Guardianship of K.L.F., 129 N.J. 32, 44 ("Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights.").
As G.J. argues, incarceration alone is insufficient to terminate his parental rights. Incarceration "is unquestionably relevant to the determination of whether the parental relationship should be terminated. However, it is by no means settled or obvious that incarceration is so inimical to that relationship as to justify its termination as a matter of law." In re Adoption of Children by L.A.S., 134 N.J. 127, 136-37 (1993) (emphasis added). However, G.J.'s "lengthy incarceration is a material factor that bears on whether [his] parental rights should be terminated," and it is important to examine "all the circumstances bearing on incarceration and criminality," including their significance to parental unfitness. Id. at 143.
The L.A.S. Court enumerated the factors to be considered where a parent is incarcerated:
[(1)] [W]hether the circumstances surrounding . . . incarceration justify the termination of parental rights based either on abandonment or parental unfitness or both[; (2) the parent's] performance as a parent before incarceration, to what extent his children were able to rely on him as a parent, and what effort, if any, he has made to remain in contact with his children since his incarceration[; (3)] . . . whether [the parent] will be able to communicate and visit with his children; what effect such communications and visitation will have on the children in terms of fulfilling the parental responsibility to provide nurture and emotional support, to offer guidance, advice, and instruction, and to maintain an emotional relationship with his children[; (4)] . . . the risk posed to his children by [the parent's] criminal disposition; what rehabilitation, if any, has been accomplished since . . . incarceration; and the bearing of those factors on the parent-child relationship[; (5)] . . . with the aid of expert opinion, determine the need of the children for permanency and stability and whether continuation of the parent-child relationship with [the parent] will undermine that need[; and (6)] . . . determine the effect that the continuation of the parent-child relationship will have on the psychological and emotional well-being of the children. [Id. at 143-44.]
We have observed that incarceration limits a parent's ability to perform typical parental functions and may frustrate the nurturing and development of emotional bonds with the child. N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006). It may also serve as an obstacle to achieving permanency, security, and stability in a child's life, thus making the length of incarceration an important consideration. Ibid. (citations omitted).
It is abundantly clear that Judge Spatola carefully considered each of the criteria required by L.A.S. Defendant is serving a ten-year sentence and, by his own admission to Dr. Katz, he has had three previous incarcerations for three-year periods. At the time of trial, he was twenty-seven years old and had served about five years on the current sentence. He has spent a significant portion of his adult life in prison and became incarcerated for the fourth time in August 2003 when his oldest child was not yet four. He made no effort to remain in contact with the children from 2004 until November 2008, despite his ability to do so, and only sent them a Christmas card in 2008, even though the Division was actively involved with the children during that entire period of time. G.J. chose not to write to his children because he "[j]ust [didn't] have anything to say now that so much time has passed." This caused the children to have no concept of G.J. as their father. The children were never able to rely on him as a parent because he allowed their mother to have unsupervised weekend visitation at a time when he knew she was a drug addict. The consistent pattern of the mother's failed drug screens from May 22, 2003, to the last drug screen performed raises a reasonable inference that the mother was using drugs prior to the first drug screen at a time when G.J. had physical custody of the children, thus exposing them to harm. Defendant's criminal history, including four periods of incarceration, reflects a criminal disposition that will pose a future risk to his children; he had not been rehabilitated prior to his most recent offense. The children clearly need permanency and stability that G.J. will not likely provide. Moreover, G.J. lacks the skills and emotional capacity to care for the children and lacks the capacity to provide for his children's emotional and physical needs. Judge Spatola correctly applied the law to the facts, all of which had been clearly and convincingly established, and we find no error in her conclusion that the first prong of the best-interests standard had been proven.
As to the second prong, G.J. argues that he is willing or able to eliminate the harm facing the children, but he clearly is not.
Under the second prong of the best-interests standard, a trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home [and] the withholding of parental attention and care . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This harm includes "evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2). The second prong focuses on parental unfitness and overlaps with the proofs supporting the first prong. D.M.H., supra, 161 N.J. at 379.
G.J. contends that the "'fundamental focus of the inquiry is not whether the parent is now fit, but whether the parent can become fit in time to meet the needs of the children,'" quoting New Jersey Division of Youth & Family Services v. F.M., 375 N.J. Super. 235, 263 (App. Div. 2005) (citation omitted). He urges that with his tentative release date in November 2009, he can become fit in time to meet the needs of his children. However, he was not paroled in November 2009. Furthermore, the judge was entitled to rely on the opinions of Dr. Katz, which she found "convincing and persuasive," that G.J. will not be able to become a fit parent in the future. We defer to this finding, as we must. M.M., supra, 189 N.J. at 279. It is clear that G.J. is unable to eliminate the harm facing the children. In D.M.H., supra, 161 N.J. at 380-81, the Court found that a father's failure to perform any parenting functions and to provide nurture, care, and support for his child for over three years constituted harm to the child under the second prong. That is certainly true here. Furthermore, defendant's plan to have his children reside with his mother until he is released shows poor parental judgment and a lack of sensitivity to the children's apprehensions because they all desire to not live with her since she beats them. This also shows G.J.'s unwillingness and inability to provide a safe and stable home for the children. K.H.O., supra, 161 N.J. at 353. Moreover, G.J. "does not have the capacity to provide for [the children's] emotional needs or physical needs," thereby further showing he is unable to eliminate the psychological harm the children have suffered. Ibid. The bonding evaluations provide further clear and convincing support for Judge Spatola's conclusion that the second prong has been satisfied.
G.J. argues that the Division did not satisfy the third prong of the best-interests standard because it failed to exer- cise reasonable efforts in reuniting G.J. with his children. G.J. contends that visitation on two occasions and a psychological evaluation do not constitute reasonable efforts. G.J. also contends that the Division did not satisfy its duty to seek alternatives to termination of parental rights.
Under the third prong of the best-interests standard, the Division must make reasonable efforts to provide services to help the parents correct the circumstances that necessitated removal and placement of the child in foster case. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services essential to achieving reunification, notice to the family of the child's progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "coordinated" and must have a "realistic potential" to succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).
The evidence is clear that the Division met its statutory burden. Given the circumstances, and specifically G.J.'s incarceration and the mother's role as the custodial parent and pri- mary caretaker, it was reasonable for the Division to focus its efforts on the mother by providing the multitude of services outlined above. D.M.H., supra, 161 N.J. at 391. G.J. has been incarcerated for the duration of the Division's involvement with this family, and the Division, while focusing its efforts on the mother, kept him informed of what was occurring through various court proceedings and notifications.
While only two visitations occurred, Reese testified that it was not possible for the Division to provide further services due to G.J.'s incarceration. Indeed, we have recognized the "difficulty and likely futility of providing services to a person in custody." S.A., supra, 382 N.J. Super. at 535-36. Finally, G.J. received numerous prison services--Alcoholics Anonymous, Narcotics Anonymous, and courses in anger management, business management, and life skills. The Division should not be required to duplicate these services. Thus, the judge did not err in finding that the Division established by clear and convincing evidence that it provided reasonable efforts to G.J.
Likewise, it is very clear that the judge considered alternatives to termination of parental rights and correctly rejected those alternatives. The court examined five alternatives: the mother, G.J.'s mother, G.J.'s other family members, and G.J., no alternative was viable. Finally, kinship legal guardianship was not a viable option because each of the foster mothers rejected it upon inquiry by the Division after explanation. The judge clearly considered alternatives and correctly rejected each.
In his final argument, G.J. contends that the Division did not prove by clear and convincing evidence that termination of parental rights would not cause more harm than good. G.J. argues that the mere fact that it would be better for the children to be with their foster parents is insufficient to satisfy the fourth prong. G.J. also claims that the Division deprived him of a meaningful relationship with the children and that Dr. Katz erroneously presumed that a bond did not exist between G.J. and each of the children.
Under the last prong of the best-interests standard, the question to be addressed is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. The overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. If a child can be returned to the parental home without endangering the child's health and safety, the parent's right to reunification takes precedence over the permanency plan. Ibid.; A.W., supra, 103 N.J. at 607-09. The mere fact of a bond with the foster parent does not alone justify the termination of parental rights. K.L.F., supra, 129 N.J. at 44-45; F.M., supra, 375 N.J. Super. at 260-62.
In meeting the fourth prong, the State should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with the natural and foster parents. J.C., supra, 129 N.J. at 19. "[T]ermination of parental rights likely will not do more harm than good" where the child has bonded with foster parents in a nurturing and safe home. E.P., supra, 196 N.J. at 108 (citations omitted). Yet, "the Division must show 'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).
We have opined that there are "very few scenarios in which comparative [bonding] evaluations would not be required. . . .
[I]t is of great significance in evaluating comparative harm under the fourth prong in showing that termination of parental rights likely will not do more harm than good, and in sustaining [the Division's] burden of proof." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009) (internal quotations omitted). However, we are satisfied that under these circumstances a bonding evaluation with G.J. was not required.
When defendant was incarcerated in August 2003, Adelina was three months old. She could not possibly have any bond with G.J. Emmanuel was two years and four months old; he had no recollection of G.J. before his November 2008 visit with him. Finally, Nadine was three years and nine months old; when she saw G.J. for the first visit, she wanted to leave. All three children refused to give him a hug or a high five and told Reese that it did not matter if they went to see him again, clearly demonstrating a lack of bond with G.J.
There simply is no evidence in the record that the children will suffer a greater harm from the termination of ties with G.J. than from the permanent disruption of their relationship with their foster mothers. Furthermore, G.J. has presented no evidence beyond his own testimony that would controvert the Division's evidence that termination is in the best interests of the children because they need permanence and stability in their lives. Judge Spatola did not err in finding that the Division had satisfied the fourth prong.