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New Jersey Division of Youth and Family Services v. J.M.


May 27, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-27-09.

Per curiam.



Submitted April 19, 2010

Before Judges Lisa, Alvarez and Coburn.

Defendant J.M. appeals the August 19, 2009 Family Part judgment terminating his parental rights to his son, S.G., pursuant to N.J.S.A. 30:4C-15(c) and -15.1. S.G.'s mother, Sh.G., voluntarily surrendered her parental rights on June 19, 2009, to her mother, R.G., with whom the child has lived since September 18, 2008, when he was nine months old. R.G. wishes to adopt. For the reasons that follow, we affirm.

J.M. was arrested on June 5, 2007, while on probation for a prior drug offense. After entering a guilty plea to third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), on November 8, 2007, he was sentenced to four years imprisonment. He has been continuously incarcerated since before S.G.'s birth.

S.G. was born on December 11, 2007; both mother and child tested positive for cocaine and marijuana. Sh.G. has a history of addiction, depression, suicidal ideation, and unsuccessful involvement in substance abuse programs. Accordingly, S.G. was removed from his mother's custody. Sh.G. asked that plaintiff, the Division of Youth and Family Services (Division), place S.G. with R.G., who volunteered to serve as a resource and was already caring for Sh.G.'s older child from another relationship. S.G. was placed with a foster family, however, as another drug-dependent adult daughter of R.G. was then residing with her.

In addition to the problems suffered individually by S.G.'s parents, their relationship was tumultuous - Sh.G. actually stabbed J.M. in the chest in 2006, puncturing his lung. To date, J.M. has not seen the child, requested a visit, attempted to contact the child in any way, or contacted R.G. in order to inquire about the child's well-being, by phone or by mail.

At approximately three months, S.G. was diagnosed as suffering from developmental delays. At five months, he was diagnosed with mild plagiocephaly on the left side of his face and head, and was prescribed treatment and therapy including the use of a helmet in order to correct the condition.

On June 18, 2008, the Division arranged to have J.M. evaluated by a licensed psychologist, Charles S. Hasson, Ph.D., in order to assess his "psychological fitness to independently parent" S.G. J.M. told Hasson that he was first arrested at age fourteen for assaulting a police officer and was placed in a "program" for six months as a result. He was arrested again shortly thereafter, this time for selling crack cocaine, and was sentenced to ten months in a detention facility. When at age fifteen, J.M. was charged a second time with selling crack cocaine, he reported being sent to a "boot camp." Because of his disciplinary problems, J.M. never attended a traditional high school; the alternative school in which he was eventually enrolled suspended him for fighting. Rather than continuing in that program, defendant elected to serve time at Jamesburg Youth Facility, where he spent sixteen months. J.M. also told Hasson that during the drug-related incident for which he is presently serving four years, "someone got killed." J.M. admitted to selling drugs in the past and hinted that he had been involved with a gang.

J.M. also told Hasson that Sh.G. is unfit to be a parent because she is a "crack head" who cannot stay clean for any substantial period of time. For that reason, if he were granted custody of S.G., he would not want Sh.G. to have any contact with the child. J.M. denied being physically abusive towards Sh.G.

J.M. told Hasson that "being incarcerated has matured him and has made him a responsible person" and that after release, he planned to obtain employment and raise S.G. He does not want the child in daycare and would arrange for his family to watch the child while he worked. J.M. was optimistic about his employment prospects because he was studying for his G.E.D. exam and claimed he worked as an electrician's assistant for seven months. The only weakness J.M. acknowledged was that women were attracted to him and he fell in love easily.

When Hasson administered the MMPI-2, J.M.'s score was indicative of "clinically significant" psychopathic deviance. His psychological profile suggested that he was "immature, impulsive . . . a risk[-]taker" and was "oriented towards thrill seeking and self-gratification." J.M.'s traits were consistent with someone who exhibited "narcissistic and manipulative" tendencies and remained alienated from others while externalizing blame. Furthermore, J.M.'s testing was indicative of drug abuse, despite his denials of having either a drug or alcohol addiction. J.M. acknowledged that he often feels "sad and angry," and tends to "lash out and then feel sorry."

Hasson considered the psychological testing results to be inconsistent "with a person who will place the need[s] of [a] young child before his own." Hasson doubted that J.M. would be able to significantly change his lifestyle upon release and opined that before the child was turned over to J.M., he should be required to establish stable housing, a job and a realistic parenting plan. In Hasson's view, it was unlikely that J.M. would be able to accomplish these baseline goals given his past history and tendency to disregard counseling or even feedback. Although he stated that J.M. could be permitted to visit with his son, he cautioned the Division to move slowly before entrusting him with any childcare responsibilities. Hasson also recommended random drug screening upon J.M.'s release because of his concern that J.M.'s psychological markers indicated the potential for a drug abuse problem.

By the September 10, 2008 compliance review and permanency hearing, the Division had developed a permanency plan calling for termination of parental rights. R.G. was given custody of S.G. on September 18, 2008. Prior to this transfer, R.G. had consistently visited the child and expressed a willingness to assume the role of primary caretaker if S.G. could not be reunified with his parents.

On November 21, 2008, the Division filed its complaint for guardianship. When a Division caseworker visited R.G.'s home on February 10, 2009, S.G. was found to be making significant progress under his grandmother's care. He was "happy, healthy, and well cared for." R.G. stated that J.M.'s father occasionally visited the child and that the visits went well. During a subsequent visit on March 5, 2009, S.G. was again observed to be thriving in his grandmother's care. The same was true at the April 16, 2009 visit, after which the Division commenced the adoption process on R.G.'s behalf.

On May 12, 2009, J.M. was evaluated by Gerard A. Figurelli, Ph.D., a licensed psychologist and the defense expert, at Northern State Correctional Center (Northern State). J.M. admitted he had been arrested twice on charges of domestic violence and that he was selling drugs at the time of the arrest resulting in his four-year sentence. He had been transferred from a facility in Yardville to one in Bordentown because of a drug charge. By then he was transferred again to Northern State, because he was identified as a gang member. J.M. admitted having been arrested a number of times for driving without a license, but denied having been an active gang member since 2006. He contended that the drug charge that precipitated his transfer was a mistake because the drugs belonged to his cellmate. J.M. reported having enrolled in two outpatient substance abuse programs, one of which he claimed to have completed.

Figurelli's testing established that J.M. would "benefit from substance abuse treatment" and he recommended that J.M. undergo urine monitoring upon his release from prison. During this evaluation, J.M. reiterated that he planned on working as an electrician after his release and that he wanted to assume full custody of S.G. as soon as he located his own apartment.

Although Figurelli found that J.M. did not manifest any signs of formal mood or thought disorder, "psychotic disturbance," "gross organicity" or "significant developmental delay," Figurelli concluded that J.M. was not able to parent and would benefit from substance abuse treatment upon release. He opined that J.M. might be able to act in a supportive parenting role to an adequate primary caretaker once he addressed his many significant psychological and social issues.

On August 7, 2009, the Division obtained another psychological evaluation of J.M., conducted by John S. LoConte, Ph.D. The purpose of this evaluation was to determine J.M.'s "psychological resources and parenting capacity." During the course of this interview, J.M. denied having a prior substance abuse history except for some "marijuana . . . in his past." He also denied belonging to a gang, although he admitted having lost his "visitation privileges [at Northern State] due to his alleged involvement in a gang." In fact, LoConte confirmed that defendant was confined to a maximum security area because of his gang involvement.

As he had with the other psychologists, J.M. expressed his interest to assume custody of S.G. upon his release. He planned to have his family assist him with parenting responsibilities while he worked at his cousin's construction firm. He characterized Sh.G.'s mother and his own as being supportive of his efforts to retain his parental rights and stated that he would not again become involved with drug distribution because he did not want to end up back in prison.

LoConte concluded that the evaluation did not establish to any degree of "reasonable medical certainty" that J.M. would be able to parent his child, although he acknowledged that this was due in part to the conditions of the interview. Because of J.M.'s gang membership status, he had been placed in a maximum security portion of the jail. The interview was conducted in a fenced area in the general cell block, where the other inmates could look in, shouted back and forth to each other, and on two occasions called out to J.M.

LoConte reiterated that J.M. needed to receive "rehabilitative and therapeutic services after [his] release" in order to change his character, lifestyle, impulses, and views of conventionality. His prognosis was "fair" at best. LoConte in part reached that conclusion because J.M. never mentioned that he wanted to change his lifestyle in order to be a good parent. He wanted to reform so as to avoid punishment. LoConte also viewed J.M.'s perception of his employability as "naïve," making it more likely that he would recidivate once confronted with reality after release.

LoConte later changed his prognosis to "poor" after learning that J.M. had provided contradictory information to different interviewers regarding his substance abuse treatment, criminal history, and gang affiliation. LoConte was troubled by J.M.'s lack of a specific plan for his son, the absence of any statement that he wished to see his son or raise his son, and the absence of any "dreams for his child." In fact, LoConte supported the Division's plan for S.G.'s adoption by the maternal grandmother.

The Division also presented the testimony of Latasha Madden, a caseworker who had visited with S.G. once a month for eleven months in order to evaluate the child's progress. She observed that S.G. was very affectionate towards his grandmother, whom he referred to as "mommy." She also stated that R.G. freely expressed her wish to adopt S.G., and the fact that she would be open to contact between J.M. and S.G. Furthermore, Madden stated that J.M.'s father visits S.G. at R.G.'s home two to three times monthly. Although J.M.'s mother does not visit the child specifically, she does see him occasionally because they live in the same housing complex.

According to Madden, J.M. never called or wrote to R.G. once she had custody of S.G. J.M. did not contact Madden or any other Division workers to inquire about the child's progress. Madden explained that no visits were scheduled between S.G. and J.M. because, in the Division's view, such visits in prison posed a danger to this young child. In her experience, visits with an incarcerated parent were usually arranged only when a child has a pre-existing relationship and requests the opportunity to visit that parent. Additionally, J.M. had never asked for visitation with his son. She said that the Division supported adoption by R.G., rather than kinship legal guardianship, because R.G. wanted to adopt and the adoption would provide the child with a more secure and permanent family situation.

While in his grandmother's care, S.G. was released from a program designed to address his developmental delays because of the dramatic progress he had made. He was no longer required to use the therapeutic helmet to correct the plagiocephaly.

In contrast to Madden's testimony, J.M. claimed he had frequently written to R.G. to inquire about his son but never received a response. He admitted, however, that he had not phoned R.G. since the child was placed in her care. When asked about his future plans for S.G., he testified he intended to enroll S.G. into Headstart and then "just . . . keep him focused on school."

As far as plans for his own future, J.M. said he intended to get some type of degree or go to school for computer technology. He had completed his G.E.D. but testified that he was not receiving any kind of vocational training while incarcerated. He denied having been a member of a gang or having a substance abuse problem. He explained that he had been placed in drug treatment programs because he was viewed as being "addicted to the drug criminal lifestyle," not because he used drugs.

The trial judge found that J.M.'s testimony was not credible in light of his extensive juvenile and adult criminal history. He was not consistent during the course of the three clinical interviews regarding his criminal history, his drug use, or his gang membership. This was a factor the judge weighed heavily in reaching his decision. As the court said, J.M.'s criminal history, and the discrepancies in his statements to the psychologists who evaluated him, lessened the likelihood that he would be able to change his lifestyle upon his release from prison. The court accepted the conclusions of the experts, all of whom agreed that J.M. was not "presently able to parent" and would not be able to parent in the future without "significant rehabilitation and treatment." The court considered each and every prong of N.J.S.A. 30:4-15.1a to have been met and terminated J.M.'s parental rights.

An appellate court "will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation omitted). That standard is appropriate because the trial court has an opportunity to observe the witnesses, giving it a much better "feel of the case." Ibid. (citation omitted). "[D]eference will . . . be accorded the trial judge's findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omitted).

Termination of parental rights requires "the State to demonstrate by clear and convincing evidence that . . . serious and lasting harm" would result to a child if parental ties are not severed. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The standard of proof the Division must meet as to the statutory requirements is by clear and convincing evidence and the determination is "'extremely fact sensitive.'" In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). A court need not wait "until a child is actually irreparably impaired by parental inattention or neglect" before terminating parental rights. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Permanency is now viewed as the "central factor" in the best interest analysis. In re K.H.O., supra, 161 N.J. at 357.

The incarceration of a parent does not automatically justify the termination of his or her parental rights. N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006). Because "'[i]mprisonment necessarily limits a person's ability to perform the 'regular and expected parental functions,'" and "may serve . . . as a 'substantial obstacle to achieving permanency, security, and stability in the child's life," it must be considered when rendering such a decision. Ibid. (citation omitted). Factors to be weighed when deliberating how a person's incarceration bears on his or her parental fitness include: 1) "the nature of the crime"; 2) "[t]he length of the custodial term"; 3) "the nature of the parent's criminal disposition"; 4) "the extent of any rehabilitation"; and 5) "the need of the child for permanency and stability and whether continuation of the parental relationship will undermine that need." Ibid.

Generally on appeal, J.M. contends that the proofs did not meet the statutory standard by clear and convincing evidence in any respect. He focuses with particularity on factor three of the best interest test, as he claims that the Division did not make reasonable efforts at reunification and should have considered kinship legal guardianship. See N.J.S.A. 30:4C-15.1a(3).

The first prong of the statutory test requires a finding 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-15.1a(1). The absence of a parent's attention, "solicitude, nurture and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re D.M.H., supra, 161 N.J. at 379 (citation omitted). As the trial court stated, defendant has never taken steps to provide for the child's safety, health, or development, and his continued poor judgment and recklessness, even while incarcerated, strongly indicated the probability that such lack of judgment will continue. According to all the experts who testified as to their interview and testing results, J.M. will not be able to properly care for S.G. until some nine to twelve months after release, under the best of circumstances. By that time, S.G. would be four to five years old, and would have lived continuously with his maternal grandmother since he was nine months old.

Realistically, defendant is unlikely to make the necessary lifestyle changes that would make him able to provide for the child's "safety, health [and] development." See N.J.S.A. 30:4C-15.1a(1). He has been involved with drugs and crime since age fourteen. Even while incarcerated, his conduct did not change. There is no reason to believe that the future will not resemble the past. The trial court's determination that the child will continue to be endangered by the parental relationship is fundamentally sound and fully supported by substantial credible evidence. The requirements of N.J.S.A. 30:4C-15.1a(1) were met.

We note in passing that J.M. contends the court's use of the term "abandonment," in support of its finding that S.G. would be subjected to risk of harm if placed under J.M.'s care, was error. Despite the inappropriate use of that term, the judge clearly applied the proper statutory test in making his determination. The trial court did not use the abandonment standard despite his mistaken use of the word. The argument does not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

The second prong of the statutory test requires that parental rights be terminated where a "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." N.J.S.A. 30:4C-15.1a(2). In this case, no expert considered J.M. able to provide a safe and stable home for the child upon his release from prison. J.M. produced no evidence that he understood the reasons for his several incarcerations, his substance abuse, involvement with domestic violence, or his psychological issues. Most significantly, he did not marshal any evidence which established an understanding of S.G.'s parenting needs. As the experts unanimously agreed, if after release J.M. followed every recommendation for engagement with supportive and rehabilitative services, even then his ability to parent would be limited. Furthermore, this child had basically only known his maternal grandmother's home as his own.

As we have said, "'[p]redictions as to probable future conduct can only be based upon past performance.'" N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 616 (App. Div.), cert. denied, 192 N.J. 68 (2007) (citation omitted). J.M.'s future will likely resemble his past. For this child's permanency to be balanced on the slender reed of the remote possibility that J.M. can remain drug-free and charge-free would jeopardize his well-being. J.M. is unable to eliminate the harm, and any delay in permanent placement will only add to the potential harm to this child.

The third prong of the test requires the Division to make "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." N.J.S.A. 30:4C-15.1a(3). Reasonable efforts are defined in N.J.S.A. 30:4C-15.1c as: attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation. Unfortunately, in this case, these reasonable efforts could not be made as to J.M. due to his incarceration. Such efforts have to be assessed on an individual basis. See In re D.M.H., supra, 161 N.J. at 391.

J.M. was not only incarcerated, but during service of his sentence was moved to a maximum security prison area. His crimes in the main involved drugs, and instead of improving while incarcerated, J.M.'s conduct appeared to worsen. There were questions about his gang and drug involvement while imprisoned. We cannot disagree with the Division that to arrange for visits with a medically fragile infant under these circumstances would pose a risk of harm to the child. Furthermore, at no time did J.M. even request those visits. In fact, J.M. did not even contact the Division to ascertain the physical and emotional well-being of his child. He did not reach out to R.G. to be kept informed of the minutia of the child's life during a time when the child's developmental and physical issues were at a crucial stage and were constantly changing. We do not perceive there to have been any error in the Division's failure to do other than it did. To carry this baby into a prison when the child had no ongoing relationship with the incarcerated parent seems unreasonable, especially when such visits are not requested. Although the Division's efforts were limited, basically no more than obtaining expert evaluations, they adequately fit the circumstances of this individual family and the needs of this individual child. See F.H., supra, 389 N.J. Super. at 620-21.

J.M.'s assertion that kinship legal guardianship would have been a more appropriate alternative flies in the face of the statute. As our Supreme Court has stated, "when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1a(3)." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004). In this case, R.G. wants to adopt her grandson and continue to provide him with the safe and secure environment in which he is thriving, both physically and intellectually. Kinship legal guardianship was not an option.

The last prong of the test requires a court to find that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1a(4). The question here is whether, weighing the different and separate interests of the natural and foster parents, "the child will suffer greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." In re K.H.O., supra, 161 N.J. at 355. We are satisfied that the trial court's assessment of this factor was based on substantial, clear, and convincing evidence. To remove S.G. from the only home he has known with R.G., where he resides with a sibling, would cause him significant harm. He has made developmental strides and is reported to be well-adjusted to life with R.G. Certainly, a "final separation from a biological parent is a harm in itself." In re Guardianship of J.E.D., 217 N.J. Super. 1, 15 (App. Div. 1987), certif. denied, 111 N.J. 637 (1988). In this case, however, severance of the relationship between S.G. and R.G. would be extremely damaging to the child whereas severance of the relationship with the biological father, although a harm, is the lesser evil.



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