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New Jersey Division of Youth and Family Services v. I.S.

June 1, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF,
v.
I.S., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF R.A., JR.,
A MINOR.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
C.M., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF R.A., JR., MINOR-RESPONDENT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Court considers whether the record in this matter establishes by clear and convincing evidence that defendant C.M.'s parental rights were properly terminated.

Irene had a brief affair with defendant C.M., a fifty-six year old married man and father of four children. The affair resulted in the birth of a child, Richard Jr., on April 3, 2006. Irene initially identified the father as Richard Sr., with whom she had two older children. Irene had a long history of substance abuse and a substantial prior history with the New Jersey Division of Youth and Family Services (DYFS). Due to concerns about Irene's substance abuse, DYFS was granted legal and physical custody of Richard Jr. After a paternity test confirmed that Richard Sr. was not the biological father, the child was moved to a foster family in July 2006, where he remains to date.

In late July 2006, Irene informed the trial court that the child's father was defendant C.M., whom she identified by a nickname and surname. She was unable to state where C.M. lived or worked, explaining that she had met him only once. At a hearing in August 2006, Irene again identified C.M. as the father, offering only his nickname and, this time, a misspelled surname. At a follow-up hearing in October 2006, DYFS informed the court that it had no information about C.M.'s whereabouts, but Irene had been in contact with him. Irene claimed, however, that she had informed DYFS where C.M. lived. She provided on the record C.M.'s place of employment, shift times, and telephone number. The judge ordered DYFS to locate C.M. and require him to submit to a DNA test.

C.M. claimed that it was not until December 2006 that Irene informed him that he might be the child's father. He submitted to a DNA test, which confirmed his parenthood on December 14, 2006. Thereafter, C.M. attempted to keep his marriage and family intact while also recognizing his out-of-wedlock child. He appeared at the next court conference on January 17, 2007. The abuse and neglect complaint that had been filed against Irene was amended to add C.M. as a party, and the judge advised him that he had the right to an attorney. Through an interpreter and without the benefit of counsel, C.M. explained that he did not presently want custody because he was already married and his wife did not want to take care of the child. He offered to pay child support. After C.M. provided his income information, the trial court observed that C.M. could apply for assigned counsel. The judge also stated that C.M. could meet with DYFS to develop a visitation plan, but he did not see a purpose for visitation because C.M. was not offering himself as a caretaker.

At the next hearing, on March 14, 2007, DYFS disclosed for the first time its goal of terminating C.M.'s parental rights. It explained that although C.M. was attending visitation with the child, he was not offering himself or his wife as a placement. The judge ordered that DYFS file a guardianship complaint by May 16th, when another hearing would be held. In light of C.M.'s position that he could not take care of the child, the judge also found it reasonable that DYFS had not offered services to him. C.M. was not present at the hearing, having given the court advance notice that he would be out of the country caring for a sick relative.

At the May 16, 2007 hearing, C.M., through an interpreter and without counsel, advised the court that a friend's wife had agreed to take care of the child or that other relatives would assist him, although it was unclear whether these individuals resided in the United States. When C.M. finally was represented by counsel at a June 27, 2007 hearing, DYFS informed the court that psychological and bonding evaluations concerning C.M. were scheduled in August, and that C.M. had offered his sister as a caretaker, but four adults were living in the sister's small apartment. DYFS never suggested that assistance might be available to improve the sister's housing situation to accommodate the child. When C.M.'s counsel advised the court that C.M.'s wife was not in support of their home being a placement for the child, the judge suggested to C.M. that he kick his wife out of the house and take his son home.

When C.M. explained that he had children living at home, the judge, without benefit of any proofs, determined that C.M. was not a viable caretaker for the child and the case would be set down for trial.

Trial was held in October 2007. A licensed clinical psychologist testified that the child was bonded to his foster parents and that severing the bond would cause permanent psychological harm to the child. C.M. testified through an interpreter that he was not approached concerning the child until December 2006, voluntarily submitted to the DNA test, and appeared at the next hearing to express his desire to parent the child with the assistance of relatives. He stated also that after DYFS ruled out his sister based on her small apartment, his wife had thrown him out of the house and he decided he wanted to care for the child. He testified that he complied with DYFS's directions that he obtain an apartment with two bedrooms and arrange for someone to care for the child while he was at work, enlisting for that purpose a woman who had a license to care for children. C.M. also testified that he would allow his son's relationship with the foster parents to continue as a result of all they had done for him.

In an October 19, 2007 decision, the trial court analyzed the four-part test for termination of parental rights codified in N.J.S.A. 30:4C-15.1(a), and found by clear and convincing evidence that 1) C.M. did not offer himself as a caretaker for the child until August 2007, by which time the child was sixteen months of age, thereby endangering the child's safety, health or development; 2) C.M.'s conduct demonstrated that he was unwilling or unable to eliminate the harm to the child due to his lack of commitment to his son, and that his proposal to care for his son was "realistic but not probable to occur"; 3) DYFS should have made a better effort to provide services to C.M., but because C.M. only offered himself as a placement in August 2007, DYFS did not have much time to find such services; and 4) the child had bonded with the foster parents and had very minimal attachment to C.M., therefore terminating C.M.'s parental rights would not do more harm than good. The court entered an order terminating C.M.'s parental rights and placed the child in the guardianship of DYFS for all purposes, including adoption.

In an unpublished decision, the Appellate Division affirmed the termination of C.M.'s parental rights substantially for the reasons stated by the trial court. The Supreme Court granted C.M.'s petition for certification, and ordered DYFS to establish an appropriate schedule to provide regular and accelerating visitation between C.M. and the child during the pendency of the appeal and until further order of the Court. 198 N.J. 308 (2009).

HELD: The judgment of the trial court terminating C.M.'s parental rights is vacated. Defendant C.M. did not endanger his child's safety, health or development, he was willing to provide a safe and stable home for the child, DYFS failed to make reasonable efforts to provide services to help C.M. correct the circumstances that led to his child's placement outside the home, the trial court did not consider, in any substantive manner, alternatives to termination of parental rights, and there is no basis in the record to conclude that termination of C.M.'s parental rights to the child will not do more harm than good. In these circumstances, severing C.M.'s ties to his son constituted a gross and unwarranted abuse of the State's extraordinary power over its citizens.

1. The Court is guided by the principle that favors keeping children with their natural parents and resolving care and custody problems within the family. That is so because parents have a constitutionally-protected fundamental interest in raising their biological children, even if those children have been placed in foster care. Consistent with that principle, the State's parens patriae responsibility to protect the welfare of children is limited to situations in which the State has demonstrated that the parent is unfit or the child has been neglected or harmed. (Pp. 26-27)

2. The four-prong test for terminating parental rights is found at N.J.S.A. 30:4C:15-1(a), which states that DYFS shall initiate a termination petition on grounds of the best interests of the child if (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 or to provide a safe and stable home for the child, delay of permanent placement will add to the harm, and such harm may include evidence that separating the child from the resource family parents will cause serious and enduring emotional or psychological harm; (3) DYFS has made reasonable efforts to provide services to help the parent correct the circumstances that 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. These four criteria are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests. The primary focus should be on the harm to the child and courts should determine whether it is reasonably foreseeable that the parents can cease to inflict that harm. The burden falls on the State to demonstrate by clear and convincing evidence that the parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child. (Pp. 27-31)

3. C.M.'s failure to offer himself as the child's caregiver for a period of eight to nine months does not satisfy the requirement of the first prong of the four-part test. The period of time a child has spent in foster care is not determinative of whether parental rights to the child should be terminated. Logic and common sense demand that, in order to justify a termination of parental rights, something more than the eight-month delay presented in this case is required, and that "something more" is plainly absent here. Examined impartially, C.M.'s offer of himself as placement for the child was made nine months after it first was ascertained that he was the biological father, eight months after his first court appearance, three months after the guardianship complaint was filed, two months after he was first represented by counsel, and two months before the first day of the guardianship trial. When viewed in its proper, fair and reasonable context, it cannot be said that C.M.'s delay in offering to raise his own child could have caused the harm necessary to satisfy, by clear and convincing evidence, the first prong of the test. (Pp. 31-36)

4. With regard to the second prong of the test, the Court discusses the trial court's consideration of C.M.'s "life circumstances," including concerns that at age 56 he might have difficulty caring for an 18-month old infant, his job schedule, the fact that he had recently separated from his wife, and the testimony by DYFS's expert that, in part, C.M. lacks a supportive wife to help with the care of the child. The Court notes that the presumption that a mother is better able to care for a child than a father has long been abandoned. Additionally, the Court states that it has never held that a defendant's nine-month hesitation in making a seemingly impossible choice-choosing between his wife and family, on the one side, and an unexpected out-of-wedlock child on the other-can constitute a proper basis for terminating parental rights. When juxtaposed against the fact that C.M. is the child's natural father and that the only so-called "harm" defendant caused was an at-most eight-month delay, the proofs adduced by DYFS were woefully insufficient to prove that C.M. was unable or unwilling to eliminate the "harm" to his child. (Pp. 36-42)

5. The trial court erred in determining that DYFS provided sufficient services to pass the third prong of the test, which requires it to consult with the parent in developing a plan for appropriate services, provide services to further the goal of family reunification, inform the parent of the child's development and health, and facilitate appropriate visitation. The Court notes, in part, that the visitation provided by DYFS with C.M.-a paltry one hour per week- did not occur until three months after C.M. was identified as the father and did not comport with DYFS's own regulations regarding the location, duration, and frequency of visits, and the requirements for determining whether supervision is warranted. Furthermore, during oral argument, DYFS admitted to this Court that in the seven months since the Court's order was signed requiring regular and accelerating visitation, it had taken no substantive steps to comply. In this situation in which no allegations have been made that C.M. was an unfit parent, the Court states that he should have been afforded a meaningful opportunity to cultivate a relationship with his infant son. (Pp. 42-50)

6. The final prong of the test requires that courts inquire into the child's relationship both with the biological and foster parents to determine whether termination will not do more harm than good, and further requires expert inquiry directed at the strength of each relationship. The Court notes that in this case, no expert was needed to establish the common sense notion that the child would be more bonded with his foster parents in light of the fact that the child spent less than one-half of one percent of his time with C.M. The Court concludes that if DYFS had satisfied its statutory obligations in a meaningful manner and engaged in substantive reconciliation efforts on behalf of C.M. and his son, the resulting expert opinions would have been different. In the distinct circumstances presented here, the Court determines that DYFS's inadequate visitation plans for C.M., standing alone, should have caused the rejection of any application asking for termination of C.M.'s parental rights. (Pp. 50-53)

7. The Court finds that (1) C.M. did not endanger his child's safety, health or development; (2) C.M. was willing and able to provide a safe and stable home for his child; (3) DYFS woefully failed to make reasonable efforts to provide services to help C.M. correct the circumstances that led to the child's placement outside the home, and the trial court never considered, in any substantive manner, alternatives to termination of parental rights; and (4) there is no basis on this record to conclude that termination of C.M.'s parental rights to his child will not do more harm than good. The Court concludes that the trial court went so wide of the mark that a mistake must have been made, thereby allowing the Court to dispense with the deference traditionally afforded to a trial court's decision. In this unique setting, severing C.M.'s ties to his son constituted a gross and unwarranted abuse of the State's extraordinary power over its citizens, and the judgment terminating C.M.'s parental right cannot be sustained. (Pp. 53-54)

The judgment of the Appellate Division is REVERSED, the judgment of the trial court terminating C.M.'s parental rights is VACATED, and the case is remanded to the trial court for the immediate development and implementation of a reasonable, realistic and meaningful reunification plan entered into in good faith. Jurisdiction is not retained.

JUSTICE LaVECCHIA, DISSENTING, joined by JUSTICES LONG and ALBIN, asserts that the majority's decision fails to account for the best interests of the child. Justice LaVecchia discusses the law's focus on a child's need for prompt stability and permanency, and points out that the law has followed the trend toward limiting the amount of time a parent may delay before providing for his or her children. She maintains that the trial court properly considered from the perspective of the child the months that C.M. delayed, which occurred at a critical time in the child's development and resulted in his close bonding with the foster parents. Justice LaVecchia notes that services provided by DYFS could not alter the fact that C.M. failed to step forward in a timely way to parent the child, and she points out the expert's testimony that the child would suffer serious and enduring harm if removed from his foster home. According to Justice LaVecchia, the evidence in the record clearly and convincingly supports the termination of C.M.'s parental rights.

CHIEF JUSTICE RABNER and JUSTICES WALLACE and HOENS join in JUSTICE RIVERA-SOTO's opinion. JUSTICE LaVECCHIA filed a separate, dissenting opinion in which JUSTICES LONG and ALBIN join.

The opinion of the court was delivered by: Justice Rivera-soto

Argued September 30, 2009

Re-argued April 26, 2010

In this case, a father was ordered to forfeit his parental rights to his natural son because he did not rush forward quickly enough, in the trial court's and Appellate Division's view, to take on fully and solely the care and custody of that child. The record demonstrates that the revelation that he had an out-of-wedlock child rocked his stable and successful marriage. Faced with the nearly impossible choice between attempting to salvage that marriage -- which had served as the center for successfully nurturing four other children, three to adulthood -- or instantly asserting his right to take on the rearing of this new child, he hesitated. In reality, this father was faced with what can be described as a "Hobson's choice," that is, no choice at all. Despite trying his best both to save his marriage and to establish a relationship with his new child by offering family members and seeking child care, he lost both his marriage and his child, even though he did offer himself as the child's caregiver and made all reasonable arrangements to carry out his parenting responsibilities.

The comprehensive and well-established judicial and legislative mechanisms adopted and in place to gauge whether a parent's right to his child should be severed permanently cannot sustain that result. Our jurisprudence, as codified by the Legislature, makes clear that the process for terminating parental rights is a difficult and intentionally rigorous one that must be satisfied by a heightened burden of proof, by clear and convincing evidence. Because the record in this matter falls short of that exacting standard, the termination of this father's parental rights cannot be affirmed. We therefore reverse and vacate that judgment, remanding the matter to the trial court for the immediate development and implementation of a reasonable, realistic and meaningful reunification plan, bearing always in mind this child's best interests.

I.

During 2005, Irene, who has a long history of substance abuse, had a brief extramarital affair with defendant C.M., a then fifty-six year old married man and father of four children with his wife. That affair resulted in the April 3, 2006 birth of the child Richard Jr.*fn1 By that point, Irene had had a decade-long involvement with the Division of Youth & Family Services (DYFS), as Irene's three earlier children had been removed from Irene's custody and placed with relatives under kinship legal guardianships.*fn2 In late 2005, upon being notified that Irene was homeless, pregnant and likely abusing alcohol and/or drugs, DYFS contacted Irene's then paramour and the father of two of Irene's then three children, Richard Sr. He confirmed that Irene was pregnant and was drinking during her pregnancy; he, however, expressed an inchoate doubt that he was the father of Irene's then-unborn child. By March 2006, DYFS was able to reach Irene and confirm that she was pregnant, homeless and likely abusing prescription medication.

Fleeing because she believed DYFS would take this child also if she remained in New Jersey, Irene went to Florida. Shortly after arriving there, she gave birth to Richard Jr., identifying Richard Sr. as the child's father. Four days after Richard Jr. was born, a New Jersey court ordered that legal and physical custody of Richard Jr. be placed with DYFS and that Irene comply with certain recommendations concerning substance abuse evaluation and treatment. Irene returned to New Jersey with Richard Jr., and DYFS placed the child with Richard Sr.'s parents.*fn3 That placement came about because Irene insisted that Richard Sr. was the father of Richard Jr., to the point of making the child Richard Sr.'s namesake.

Because Richard Sr. continued to question whether he was the father of Richard Jr., a paternity test was performed. It determined that Richard Jr. was not the natural child of Richard Sr. For that reason, on July 11, 2006, custody of Richard Jr. was moved from Richard Sr.'s parents to the foster family where he remains to date. Two weeks later, at a compliance hearing arising out of an abuse and neglect complaint DYFS had filed earlier, DYFS requested that Richard Sr. "be dismissed from the complaint[,]" noting that the paternity test "indicates that there is zero probability that [Richard Sr.] is the father of [Richard Jr.]" and "ask[ing Irene] to hopefully identify who the father of this child is so that [DYFS] can begin exploring him as well." Responding to a direct inquiry by the trial court, Irene identified defendant by a nickname and his surname, but was unable to state where defendant lived, his age or date of birth, or where defendant worked, stating she had met defendant "just once and that she doesn't have that much information."*fn4

Given that setting, DYFS asserted that it "cannot search for someone with that little information" and requested that "until [Irene] can give us detailed -- any more detail information that [DYFS] be excused from searching for [defendant.]" The trial court ordered as follows:

The child is to continue in the custody of [DYFS], remain in placement. [DYFS] can search for any additional relatives, family members, search for the named father of the child. [Irene is] to cooperate with [DYFS] in locating that person. Once that person is located he is to submit to the DNA test. If he refuses to submit to a DNA test voluntarily he would have to be named a part defendant so he could be ordered to submit to a DNA test.

The trial court then set the case for "another compliance review date, possibly a permanency hearing[.]"

On August 11, 2006, the trial court conducted another compliance hearing on DYFS's abuse and neglect complaint. At that hearing, Irene again identified defendant as the father, but only by a nickname and, this time, a misspelled surname. At the conclusion of the evidentiary portion of that hearing, the trial court found that DYFS had proved its abuse and neglect allegations against Irene by "overwhelming evidence" and that Richard Jr. "is considered abused[ and] neglected[.]" It ordered that Richard Jr. remain in the custody of DYFS and that DYFS "will have to search, serve the new -- newly named father of the child, have him submit to a DNA test when -- when [DYFS] find[s] him." The trial court warned Irene that "unless you cooperate with [DYFS], cooperate with your attorney, [and] are in a position to provide a safe, stable home for the child, [DYFS] will be making an application to terminate your parental rights so that the child can be adopted."

At a follow-up compliance hearing held on October 4, 2006, the trial court inquired of DYFS whether it had had "any contact with the person [previously identified by Irene by nickname] who might be the father of the child." DYFS explained that it had not, noting anecdotally that Irene "has had contact and has been attempting him - - to get him into the [DYFS] office and comply with the paternity testing, but [DYFS] ha[s] had no contact with him." It observed that "[w]ith regard to the named father, . . . [DYFS] do[es] not have any other information about his current whereabouts, but that [Irene] has had continued contact with him." Irene's counsel interjected, stating that Irene had advised defendant "that he needs to present himself to [DYFS] for DNA testing." Counsel sought to downplay Irene's responsibilities by claiming that "[a]ll she can do is tell him -- my understanding is that she had given to [DYFS] as much information as she could[,]" suggesting that "[m]aybe [DYFS] might consider maybe sending a worker to go with my client to where he lives." Although defendant was not yet a party to these proceedings, Irene's counsel also suggested that "if the court wants to maybe issue an order directly to him, that's something [DYFS] might want to explore[.]" Irene herself claimed that she "told DYFS where [defendant] lives" and provided, on the record, defendant's place of employment, shift times, and work telephone number, asserting she was now sure defendant was the father of Richard Jr. She remarked that when she had asked defendant to submit to the paternity test, he replied: "I need a lawyer for myself[.]" The trial court then ordered that DYFS "search for [defendant]. Once he's located have him submit to a DNA test, give him notice of the next court date. If he doesn't show up on the next court date a warrant can be issued for his arrest if he has been properly served."

Notwithstanding Irene's representations to the court, defendant insists that it was not until December 2006 that Irene advised defendant that he could be Richard Jr.'s father. Within days, defendant submitted to a DNA test and, on December 14, 2006, it revealed that he was the father of Richard Jr. Once it was ascertained that defendant was Richard Jr.'s father, defendant was squarely on the horns of a dilemma: he was married, had four children and was the father of an intact family, yet he was confronted with having fathered a child with someone other than his wife. By his subsequent efforts, defendant tried, understandably, to keep his family intact while also recognizing his responsibility for his out-of-wedlock child. Initially, he harbored the hope that his wife would accept Richard Jr. and raise him as part of their existing family.

As a result, defendant appeared at the next court date --January 17, 2007 -- accompanied by his wife and daughter, but without counsel. After the abuse and neglect complaint was amended to list defendant as a party and in response to a direct question from the trial court, defendant admitted that he was the father of Richard Jr. Irene also stated that defendant was the father of Richard Jr., but claimed that she did not realize it until after she was informed of the negative results of the paternity test for Richard Sr. The trial court advised defendant that he had "the right to have an attorney." Through an interpreter and again without the benefit of counsel, defendant explained that, because he was already married, he did not presently want custody of the child. He further explained that he needed "to find out who can look out for the child because I am married and I have four children with my wife." In response to the trial court's questions, defendant offered to pay child support "[a]ccording to my income." He noted that, at present, his wife did not want to take care of this child. Defendant explained:

Your Honor, I want you to know that I have four children and I have problems in my home with my wife because of this situation because I am -- I'm not a young man anymore and my income doesn't allow me to support --I have no space to have the child either unless perhaps I were able to send the child to my country where I will have there people who will look after the child.

After providing his income information, the trial court observed that defendant "can make application for the court to assign an attorney[,]" stating that "[b]efore he leaves we'll take [his written application for counsel and] assign it to the public defender." The trial court ruled:

As far as this proceeding, the child is to continue in the legal, physical custody of [DYFS]. [Defendant] is not offering himself as a caretaker. He has the right to have counsel. If he wishes to visit, he could sit down with [DYFS], develop a plan for the child. If he has no plan, not offering himself as a caretaker, I don't see what the purpose of visitation would be.

Defendant, still without counsel, did not appear at the next scheduled hearing, which was held on March 14, 2007. He did, however, notify the trial court in advance that he would be absent because he was going to be "out of the country . . . attending to a sick relative." The trial court summarily determined that defendant's "non-appearance can be waived since he's not offering himself as a caretaker." At that hearing, DYFS, for the first time, disclosed that its "goal is termination of parental rights." It noted that, although defendant "is attending visitation[,] he's not offering either him or his wife as a resource for this child." In respect of suitable placements for Richard Jr., DYFS did note that it "requested that [defendant] also provide us with any additional relatives as well." Although the trial court determined that defendant "has not been offered services[ by DYFS,]" it excused that failure, reasoning that "[s]ince his position is that he does not wish to be a caretaker, the lack of services as to [defendant] would be reasonable under the circumstances." It ordered that DYFS file a guardianship complaint by May 16, 2007, when another hearing would be held.

At the May 16, 2007 hearing, defendant, through an interpreter and again not yet represented by counsel, noted that, while he personally was not in a position to take care of Richard Jr., "[t]he wife of a friend of mine . . . has made a commitment to take care of him." When asked whether DYFS had "ever sat down with [defendant] to develop a plan for the baby[,]" DYFS responded:

Judge, I know [DYFS] has spoke[n] with him. He indicated that he was considering the Dominican Republic for this child. That was his plan and I'm not quite sure if this is the wife of his friend [who] lives in the Dominican Republic or I'm not clear as to that but [DYFS] was told that he cannot [be the caretaker] at this time for this child. He is not offering himself as a plan but he would be offering someone in the Dominican Republic.

[W]e'll take names from [defendant] but [DYFS] feels that to send this child to the Dominican Republic would be problematic at best.

Although the appointment of counsel for defendant clearly was discussed during the January 17, 2007 hearing, it had not yet been done. Acknowledging that shortcoming, the trial court ordered that defendant be provided counsel and explained that, while defendant "could sit down with [DYFS and] discuss a plan for the child[, t]he plan of sending the child to live in the Dominican Republic with a family friend does not seem to be appropriate." It then scheduled a hearing on DYFS's guardianship complaint for June 27, 2007, noting that DYFS "can arrange updated psychologicals, bonding evaluations for [Irene] and for [defendant] if necessary."

At the June 27, 2007 hearing, defendant was represented by counsel for the first time. During the colloquy with the trial court, DYFS acknowledged that defendant had provided his sister as "a relative resource that we're looking at[.]" DYFS explained that it had looked at the paternal aunt as a resource.

We did go out to the home. There are some concerns with regards to the number of people living in the house. There's four adults in the home and it is a one bedroom apartment that has been converted somehow into a two bedroom which is one of my questions was they're renting this, was this a legal conversion or not a legal conversion and then again my other issue is that according to the resource specialist who went out that the home not only has four adults but it appears quite cluttered as well.

So we have -- there has not been a rule out, obviously we need to discuss this with her, discuss the condition of the home and [DYFS] will continue working with her but -- and we're going to continue to do that and [DYFS] will have to come to some type of decision but again [DYFS] -- even if the home does check out and the background checks are fine, [DYFS] is still going to be looking at the bonding evaluations before any potential movement of this child.

Significantly, DYFS never suggested that assistance might be available to defendant's sister to improve her housing circumstances in order to accommodate Richard Jr. It instead noted that both psychological and bonding evaluations concerning defendant were scheduled to be performed in August 2007.

During that hearing, the trial court asked whether defendant was "interested in being the caretaker for the child[.]" Defendant's counsel replied that "the problem is I believe the wife, she's not in support of being a placement so he's relying on the sister and parents as a resource for this child, Your Honor." DYFS added that, although defendant also had indicated that his brothers could be resources for Richard Jr., "[t]hey indicated that they were not interested in adoption, that's what is on the table at this point." It also explained that DYFS "spoke with his sister who indicated she is interested. She's the one that we are doing the evaluation with at this time." DYFS expressed its preference for Richard Jr.'s current placement because "since pretty much the age of three weeks up until his entire development he's been in this particular home."

Although no psychological or bonding evaluations on Irene, Richard Jr. or defendant had been conducted and no efforts at reunification had been made, the following exchange ensued between the trial court and defendant:

THE COURT: [Counsel for defendant], what's your -- your client wants to say something.

[DEFENDANT]: I believe that because one is poor, one's parental rights should not be taken away from one. In every part of the world there's poverty. To raise a child or to have a child you don't necessarily have to have a large physical space. If you don't give the child love and an education, the size of the space you have doesn't --

THE COURT: Mr. -- Mr. [defendant], I'm really not interested in your philosophy, okay? My question is[:] are you in a position to care for your child? That's my question.

[DEFENDANT]: I can raise him together with my sister. I'm married and my wife doesn't want him but my sister can be his mother.

THE COURT: Can you take the baby home to you and your wife or your family? The family that you live with?

[DEFENDANT]: No, not to my wife.

THE COURT: Well, maybe –

[DEFENDANT]: My -- my sister is a competent person who has raised children --

THE COURT: No, I'm talking about you, you. Do you want this child to live with you?

[DEFENDANT]: I want him to live with my -- the child to live with my sister.

- -

THE COURT: With you.

[DEFENDANT]: No.

THE COURT: Why don't you kick your wife out and take your son home? This is your son, you made the baby, you be responsible for him.

[DEFENDANT]: Correct, I'm responsible.

THE COURT: Take the baby with you.

[DEFENDANT]: That's why I'm looking for him because I'm responsible.

THE COURT: Take the baby, you made the baby and have your wife leave.

[DEFENDANT]: The issue is I have more children with my wife.

THE COURT: The children live with you?

[DEFENDANT]: They live with me.

THE COURT: Why did you have another child with [Irene]?

[DEFENDANT]: Well there are things that happen in life, accidents. [(emphasis supplied).]

Immediately following that exchange, the trial court made up its mind, stating that "[accidents] shouldn't happen. Without the benefit of any proofs, the trial court determined that "defendant is not a viable caretaker for the child. His position is that his sister is the caretaker. [DYFS] is willing to explore it but I'm going to set the case down for trial."

Defendant's counsel protested that he "just got the case so it's fair to say I need some information from [DYFS], if there were any prior evaluations." He added that "I know my client didn't know about this child up until some time in December." He also explained that he did not "know if they are visiting so even if [they are], I don't know if a bonding evaluation would be needed in this case, Your Honor, so that's why I'll check the bonding evaluation ---" The trial court interrupted, summarily stating that "[i]t doesn't sound like a bonding evaluation or psychological evaluation is necessary." Once the trial court scheduled the trial on the guardianship complaint, DYFS made its goal crystal clear: "[w]e are looking at adoption, not custody transfer, not anything, it's adoption."

Trial on the guardianship complaint was held from October 9 through 12, 2007. DYFS presented the testimony of a DYFS caseworker and a licensed clinical psychologist, Dr. Ernesto Perdomo, who testified that Richard Jr. was bonded to his foster parents and that severing that bond would harm the child. Again through an interpreter, defendant testified that he had not been approached by Irene concerning Richard Jr. until December 2006, that he voluntarily submitted to a DNA test, and that he had appeared at the very next hearing date to express his desire to parent the child, albeit with the assistance of relatives. He also explained that he offered himself as a placement for his son "after [DYFS] rule[d] out [his] sister saying she had a very small apartment." He elaborated, noting that "[t]hen my wife threw me out of the house. At that time I decided that for them to give the child to me and not to my sister since I am his father." He was informed by DYFS that, in order to qualify for placement of his child, he would need "[a]n apartment with two bedrooms[,]" which he secured. He stated that he also was told by DYFS to secure someone to care for the child while he was at work and that, in compliance, he had identified "a person or persons that I trust, . . . she has a license to take care of children and she doesn't work, she's all the time at home." Defendant also stated that he would allow his son's relationship with his foster parents to continue "in appreciation with what they have done with him[.]" He was asked directly: "How committed are you to care for your son?" His response was immediate: "A hundred percent." He explained that his marital woes would not affect his rearing Richard Jr. because he and his wife "[we]re already separated." Finally, defendant was asked: "You're fifty[-]six [years old], do you think you can care for a child who is eighteen months old?" Rejecting the premise on which the question was founded, he stated that parenting has "nothing to do with age. How many [parents are there] who are even older [and] are taking care of children of that age[?]"

After hearing the parties' summations, the trial court issued its judgment. In a written, unpublished decision dated October 19, 2007, the trial court did "not find [defendant]'s testimony regarding offering resources in and around January 2007 as credible." According to the trial court, defendant "was open and non evasive during his testimony, however, he was constantly confused as to dates and when things were occurring during this case. Instead of referring to dates, he would use the terms [']the first time I was in court['] or [']the second time I was in court.[']"*fn5 On that basis, the trial court discounted defendant's testimony in respect of when he offered alternative placements for his son, and determined that defendant did not offer any alternate placements for his son until August 2007, a conclusion belied by the transcripts of proceedings before the trial court as early as May 16, 2007.

Addressing whether defendant's parental rights to Richard Jr. should be terminated, the trial court referenced the four-prong test codified in N.J.S.A. 30:4C-15.1(a). In respect of the first prong, the trial court noted that DYFS had "allege[d] that due to 'life circumstances' and by failing to offer himself as a resource for placement of his son [Richard Jr.] until August 2007 that [defendant] endangered the child's safety, health or development." In the trial court's view, defendant "became aware that he was the biological father of [Richard Jr.] no later than December 2006" and "he did not offer himself as a resource until August 2007[,] some nine months later." It concluded that defendant delayed "until he was asked to leave the marital home by his wife[.]" It therefore found that DYFS "ha[d] proven [p]rong (1) by clear and convincing evidence in that due to 'life circumstances' and/or the failure to offer himself as a resource until August 2007, [defendant] ...


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