On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-292-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R.B. Coleman and C.L. Miniman.
Defendant A.M.D. (the father) appeals from a Judgment of Guardianship entered October 13, 2009, in which the trial court terminated his parental rights to his minor child N.D.L.-D. (fictitiously, Nakeisha). Because the Division of Youth and Family Services (the Division) satisfied the four-prong best-interests standard of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence, we affirm.
When Nakeisha was born in August 2001, her mother, N.L. (the mother), was fifteen years old and the father was seventeen. At this time, the Division had been involved in the mother's life since she was five years old, when a referral was made in 1990 regarding sexual abuse and other family problems. At least ten referrals were subsequently made. The father also experienced difficulties while a minor, having been arrested four times as a juvenile between October 1999 and September 2001. His first arrest on October 18, 1999, was for receipt of stolen property; the three subsequent arrests on March 17 and May 6, 2000, and September 19, 2001, were all on drug-related charges. After his first arrest, the father was placed in a diversionary program and the charges were dismissed. The charges related to his second and fourth arrests were also dismissed. The father was adjudicated delinquent after the third arrest, with a sentence of one-year probation and a six-month suspension of his driver's license.
In May 2001, the Division received a referral from a Family Part judge informing it that the mother was four months pregnant. The judge ordered the Division to find a relative or residential placement for the mother and to schedule a psychological evaluation for her. The Division subsequently unsuccessfully attempted to contact three of the mother's maternal aunts; contacted a fourth maternal aunt, who declined to care for the mother; contacted the mother's previous caretaker, who stated it was unlikely the mother could reside in her home; initiated a referral to Great Expectation, a residential facility for pregnant teens; and initiated a referral to the Isaiah House for pregnant teens, where the mother was accepted in June 2001.
The Isaiah House provided the mother with counseling, prenatal treatment, parenting skills classes, and a mentor. She also received a psychological evaluation at the Isaiah House on June 11, 2001. Following the evaluation, the Division filed a verified complaint on behalf of the mother against her biological parents on June 24, 2001. The whereabouts of the mother's parents were unknown at the time of the complaint. The Division thus requested an order granting custody, care, and supervision of the mother to the Division.
The day Nakeisha was born, a worker at the Isaiah House notified the Division that the mother had gone into labor. The Division had concerns regarding the mother's ability to parent her child, because she was possibly using marijuana and was not going to be permitted to stay at the Isaiah House after giving birth to Nakeisha. Based on the mother's history, the Division filed an amended complaint on September 13, 2001, seeking legal care, custody, and supervision of Nakeisha. The amended complaint named the mother and the father as defendants and was brought on behalf of the mother and Nakeisha.
At this time, the Division had identified B.P. as a temporary caretaker for Nakeisha until the mother and the mother's caretaker, J.A., could relocate into a larger apartment. The Division also began to assess other relatives as possible placement resources for Nakeisha, including A.G. (her godmother), V.T. (her maternal great aunt), and her paternal grandparents. Nakeisha thereafter resided in a Division-approved foster home in Toms River pursuant to an order to show cause dated September 14, 2001. Only five days later, the father was arrested for the fourth time on four drug-related charges. As previously mentioned, the charges related to this arrest were dismissed on January 4, 2002.
The Division was in frequent contact with the mother and Nakeisha following Nakeisha's birth. In September 2001, the Division visited the mother at J.A.'s home several times. During one visit, J.A. informed the Division worker that the father had been recently released from jail. J.A. expressed a willingness to care for Nakeisha on multiple occasions.
An initial visitation plan was established in October 2001. The plan was for one-hour bi-weekly visits for Nakeisha with her parents. A Division worker also met with the mother and the father on October 4, 2001. During this meeting, the parents expressed their concerns about J.A. caring for Nakeisha, and the mother stated her preference that A.G. care for Nakeisha. On October 16, Nakeisha's paternal grandmother stated she was willing to care for Nakeisha. That same day, A.G. informed the Division, and the mother confirmed, that the mother was now staying with her. The first recorded visit occurred on October 9. Both parents attended the visit. On October 11, the Division contacted the Newark Renaissance House to secure drug and alcohol assessments for each parent, but the Division's request was denied. On October 22, the Division sent letters to the mother and the father informing them that it had scheduled drug and alcohol assessments on November 13 and 14, respectively. Another recorded visit occurred on October 25. The parents "appeared to interact with the child very well."
On November 9, 2001, the father tested positive for marijuana; he claimed he was not sure why. He then completed a CADC assessment. On November 14, a Division worker brought the mother and the father to the Ocean County office for a visit with Nakeisha. Both parents "interact[ed] really well with [Nakeisha]." The next day, the mother appeared in court regarding this case; however, the father did not because he had been arrested the previous night for a probation violation. The father did not attend visits on November 28 and December 18, 2001, and January 9 and 23, 2002, although the mother did so.
After the January 23, 2002, visit, the Division worker spoke with Nakeisha's foster mother regarding allegations that Nakeisha came to the visits dirty, unkempt, and with scratches and lumps on her face and head. The foster mother denied the allegations. The father turned eighteen on February 14, 2002. A second visitation plan was prepared on February 25, 2002. This plan changed the location of the visits from Ocean County to Newark, since Nakeisha had been relocated closer to Newark. A third visitation plan was negotiated on March 1, 2002.
On June 14, 2002, the court, with both parents appearing, entered a permanency order in which it found the Division's permanency plan to be appropriate. The father's paternity was established through a paternity test conducted on July 25, 2002. The next day, the Division received a referral reporting that the referrer observed a bite mark on Nakeisha's left thigh and a black and blue bruise at the top of her vagina. Nakeisha was placed in a temporary foster home, but no further investigation of the abuse was apparently conducted.
Between March 1 and September 1, 2002, the father was arrested at least three times and was thereafter charged in three indictments with drug-related offenses, including school-zone and public-housing offenses. Indictment No. 02-07-2766I was issued in connection with the father's arrest on August 26, 2002. Indictment No. 02-10-3624I was issued in connection with his arrest on March 8, 2002. Finally, the record on appeal does not disclose the date on which the father was arrested, but Indictment No. 02-11-4028I charged him with seven drug offenses occurring sometime before November 2002.
While this criminal activity was taking place, the father attended visitation with Nakeisha on July 12, 2002. The visitation log states that both parents nurtured Nakeisha during the visit and their interaction was good. The father did not attend six other scheduled visitations between June 27 and September 6, 2002. The caseworker characterized the frequency of the father's visits with Nakeisha during this time period as sporadic and inconsistent.
On August 23, 2002, a permanency hearing was conducted, during which the Division was ordered to file a complaint for guardianship within two months. Following this permanency hearing, the Division sent a letter to D.N., Nakeisha's maternal great aunt, on September 17, 2002, in which it confirmed that D.N. had expressed her inability to care for Nakeisha or to provide a permanent plan. On September 18 and 25, the mother underwent psychological and psychiatric evaluations at the Division's request.*fn1
On October 24, 2002, the Division filed a complaint against the mother and the father on behalf of Nakeisha. In the complaint, the Division averred that it had made or attempted to make reasonable efforts to assist the parents, including: consulting with the mother and the father in developing a plan for appropriate services; providing court-ordered services to further the goal of family reunification; attempting to inform the parents of Nakeisha's progress; and facilitating visitation.
The Division also stated it considered alternatives to termination of parental rights, including placement with relatives. An order to show cause was entered the same day in which the mother and the father were ordered to show cause why the court should not terminate their parental rights to Nakeisha. They were also required to attend all conferences scheduled in the matter. The Division's plan for Nakeisha was foster-home adoption by her then-current caretaker, A.G.
Similar to its letter to D.N., the Division sent a letter to V.T., Nakeisha's maternal great aunt, on October 30, 2002, in which the Division confirmed her desire to be excluded from consideration as a relative resource for Nakeisha. The Division also sent a letter that day to Nakeisha's paternal grandparents, confirming their desire to be similarly excluded. On December 10, 2002, the Division notified the father that a review of Nakeisha's placement was scheduled for December 16, 2002, and invited him to attend. The record does not indicate whether he did so.
On January 13, 2003, the father pled guilty to certain counts of each indictment. First, he pled guilty to second-degree conspiracy to possess and use a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:5-2, under Indictment No. 02-07-2766I. Second, he pled guilty to third-degree possession of CDS, contrary to N.J.S.A. 2C:35-10a(1), under Indictment No. 02-10-3624I. Finally, he pled guilty to third-degree possession of CDS on school property, contrary to N.J.S.A. 2C:35-7, and third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d. Presumably, if the father were out on bail, it would have been revoked at this time.
The next recorded contact occurred on March 25, 2003, when a Division worker visited A.G.'s home. A.G. reported that Nakeisha was doing well, was up to date on her immunizations, and had begun potty training. At this time, the mother was attending drug treatment three times a week as well as school and anger management classes.
The father was sentenced in connection with his various guilty pleas on March 28 and 29, 2003. On Indictment No. 02-07-2766I, the father was sentenced to a term of three years, which was to run concurrently with the sentences imposed under the two other indictments. He received credit for nine days served. On Indictment No. 02-10-3624I, the father was sentenced to three years and received credit for fifty-three days time served. Finally, on Indictment No. 02-11-4028I, the father was sentenced to three years of which fifteen months were without parole.*fn2 He received credit for 220 days time served, suggesting that he had been in jail continuously since August 20, 2002, on the charges in connection with this indictment. He was also apparently in jail for sixty-two days between March 8 and August 20, 2002, in connection with the first two indictments.
On July 28, 2003, the mother and the father, who was incarcerated at the time, made identified surrenders of their parental rights so that Nakeisha could be adopted by A.G., with whom she then resided. On that same date, the Division was granted guardianship of Nakeisha. The litigation was then dismissed on November 13, 2003, with respect to the mother because she had turned eighteen.
The father must have been released on parole shortly after he served fifteen months of the sentence under Indictment No. 02-11-4028I, because on October 26, 2003, he was arrested for an eighth time, undoubtedly a violation of parole. The charges again related to drug and weapons offenses, including school-zone and public-housing offenses. He was indicted under Indictment No. 04-04-1386I in April 2004. He pled guilty on July 19, 2004, to third-degree possession of CDS, contrary to N.J.S.A. 2C:35-10a(1), and third-degree possession of a handgun, contrary to N.J.S.A. 2C:39-5b. He was sentenced on October 22, 2004, to three years in prison with an eighteen-month period of parole ineligibility. He was given credit for one day time served. This sentence would have kept the father in jail until at least April 21, 2006, at which time Nakiesha would have been four years and eight months old.
The custody litigation remained closed until February 26, 2007, when the court vacated the guardianship of Nakeisha and reopened the litigation due to A.G.'s indication that she no longer wished to adopt Nakeisha. On March 27, 2007, the Division visited with Nakeisha and A.G. in A.G.'s home. Nakeisha, who was then five years and eight months old, had been suspended from school for fighting a schoolmate. Nakeisha wanted to stay with A.G., but A.G. could no longer handle her bad behavior. A subsequent visit to V.T.'s home on April 23, 2007, revealed no concerns about it as a placement. Nakeisha was then placed in V.T.'s home on May 23, 2007. Shortly thereafter, the caseworker visited the father at his mother's home in East Orange. The father did not offer himself as a plan for Nakeisha at that time, but he did offer his mother as a relative resource.
On June 8, 2007, Dr. Andrew P. Brown, III, conducted psychological evaluations of the mother and the father and bonding evaluations of each parent with Nakeisha. Regarding the father, Dr. Brown reported that the father's scores indicated the presence of "very high" general and personal self-esteem and "high" social self-esteem. The father's parental alliance with the mother was "abnormal." He presented with a "significant history of anti-social behaviors" resulting in several incarcerations. He tended "to be defensive and with poor insight," but he "presented[ed] with[out] any clinical indic[ia] for child endangerment." Although there were no indications that the father was at risk of endangering Nakeisha's welfare, Dr. Brown recommended that family reunification not be considered until the father attended and completed parenting education, demonstrated financial and residential stability, and remained free of legal problems.
During the bonding evaluation of the father and Nakeisha, Dr. Brown observed no indications that Nakeisha was uncomfortable with her father. Rather, Nakeisha demonstrated "the presence of a positive relationship and even attachment with her natural father." However, she expressed a preference to live with her mother if she had to choose between her parents. Dr. Brown advised that Nakeisha continue her relationship with her father, and while she was not bonded to him, it was likely that she would have an adjustment-related reaction if the father's parental rights were terminated. Dr. Brown did not perceive the father to be a significant threat to Nakeisha's welfare. He concluded that there was "a strong likelihood that with sustained visitation, [Nakeisha] will gradually incorporate a[n] internal working model of attachment derived from positive aspects of her father's personality."
A Division worker visited Nakeisha at V.T.'s home on June 15, 2007. The worker reiterated that neither the mother nor the father was permitted to have unsupervised visits with Nakeisha at that time. During the next monthly visit on July 30, 2007, V.T. informed the Division worker that Nakeisha was fighting with other children at summer camp; while at home, Nakeisha was "good for the most part but she can behave like [a] brat at times when she [does] not get her way." Nakeisha was also acting out sexually. The worker told V.T. that she had not been previously made aware of any sexual behavior, but she would refer Nakeisha to therapy to deal with her aggressive sexual and physical behavior.
Subsequently, the father was held in default for failing to appear in court, although the mother did contest the action. The Division then filed a verified complaint on July 31, 2007, against the mother and the father requesting an order continuing custody of Nakeisha with the Division. The next day, with both parents appearing, an order was entered continuing ...