August 26, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF N.D.L.-D., A MINOR.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: July 13, 2010
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 Nakeisha in the custody, care, and supervision of the Division and appointing a Law Guardian.
The monthly August visit revealed continued concerns regarding Nakeisha acting out sexually. The worker indicated to V.T. at this time that Nakeisha's behavior was demonstrative of a sexually abused child. On September 19, 2007, the Division worker visited V.T. and Nakeisha and informed V.T. that the mother had to comply with the Division's recommendations before Nakeisha could be placed with the mother.
During the monthly visit on October 22, 2007, V.T. informed the worker that she had completed Pride classes, which helped her deal with Nakeisha's issues. V.T. also reported to the worker that Nakeisha had been urinating on herself. Nothing remarkable occurred during the November, December, and January visits, although Nakeisha's behavior was beginning to improve.
After testing positive for marijuana on September 5, 2007, the father was referred for a substance-abuse assessment on December 5, 2007, which he attended. It was recommended that he thereafter receive outpatient treatment at Integrity House, but he did not do so. The mother and the father were also both referred to a parenting skills group on December 5 to learn how to deal with Nakeisha's behavioral issues. Similar to his visitations in 2001 and 2002, the father's visits with Nakeisha starting in 2007 were "inconsistent" and "sporadic."
Dr. Ronald W. Crampton conducted a psychiatric evaluation of Nakeisha on January 10, 2008. Dr. Crampton diagnosed Nakeisha on Axis I with anxiety disorder NOS, depressive disorder NOS, disruptive behavior disorder NOS, oppositional defiant disorder, enuresis, and encopresis. Dr. Crampton deferred diagnosis on Axis II, reached no diagnosis on Axis III, and diagnosed multiple psychosocial factors on Axis IV. Addressing concerns that Nakeisha was "sexually acting out," Dr. Crampton recommended the Division confer with Nakeisha's psychiatrist at Catholic Community Charities, where she had been receiving services since August 14, 2007, and seek additional recommendations. He "strongly recommended" that placement of Nakeisha with her parents not be implemented until they submitted to court-ordered, comprehensive, psychiatric evaluations. Finally, he recommended that the supervised visitation arrangement be carefully reviewed to ensure the plan was in Nakeisha's best interest.
On January 31, 2008, the court, with the mother but not the father appearing, entered a permanency order in which it found the Division's plan of reunification concurrent with a plan of termination of parental rights to be appropriate. A multi-purpose order entered the same day continued custody, care, and supervision of Nakeisha with the Division; ordered the mother and the father to undergo substance-abuse evaluations, submit to random urine screenings, and attend counseling and parenting skills training; and permitted the mother and father to have biweekly supervised visits with Nakeisha. One week later, the court entered an amended permanency order, this time finding the Division's plan for termination of parental rights to be inappropriate because the mother needed additional time to comply with services.
Also on January 31, 2008, the father received a letter from Essex County College, WISE Women's Center (the Center), informing him that he and Nakeisha had been accepted into the Center's eight-week parenting skills training program. The Center then notified the father on March 8, 2008, that since he had not attended any parenting skills training classes since February 21, 2008, he would have to attend class by March 13, 2008, or would need to be re-registered. On April 14, 2008, the father received an absence notice stating that he had not attended class on February 14, February 28, March 6, and March 27, 2008. He was permitted to make up the missed classes, but he did not do so. The caseworker was unsure whether he completed the course, but the father never provided the Division with any documentation of completion.
During the February 26, 2008, monthly visit, V.T. and the worker discussed the progress of the mother and the father.
V.T. told the worker that the father arrived late to his parenting skills classes and the mother did not attend at all. V.T. wanted to attend the next court hearing in April so that she could inform the judge of her desire to adopt Nakeisha.
The father was arrested a ninth time on March 2, 2008, and a tenth time on May 18, 2008, both times on a charge of simple assault. Both times the charge was dismissed. His eleventh arrest occurred on June 5, 2008; the charge of certain persons not to have weapons was later dismissed. The next day, he was arrested for a twelfth time on multiple weapons charges. Although the charges were eventually no billed, the father was incarcerated from the time of his last arrest until he was released on December 24, 2008. While he was in jail in 2008, the father inquired within the facility about being transferred to court for any hearings in this matter; however, he did not contact the Division or attempt to do so.
On June 18, 2008, the Division filed another complaint and order to show cause, this time seeking termination of the mother's and the father's parental rights to Nakeisha, who was almost seven at this time. The whereabouts of the father were unknown to the Division, as he did not maintain consistent contact with the it. The Division later learned that the father was incarcerated at this time. The Division verified in its complaint that Nakeisha resided with V.T. in a Division-approved foster home. The Division had placed Nakeisha with V.T. after A.G. indicated she no longer wished to adopt her. The Division averred that all other relatives were either unable to care for Nakeisha or placement with them was determined to not be in Nakeisha's best interests. The Division's plan was for foster-home adoption by V.T.
The Division worker visited V.T. and Nakeisha for a monthly visit on October 27, 2008. During the visit, V.T. told the worker that she had submitted all the needed documents to have her home approved. Nakeisha's behavior was continuing to improve, although she still got in trouble occasionally at school. Nakeisha informed the worker that she enjoyed living in V.T.'s home. Nothing remarkable was recorded regarding the November 18, 2008, January 30, 2009, March 26, 2009, and April 23, 2009, visits, other than the worker keeping V.T. informed of the status of the litigation.
The Division reestablished contact with the father at a court hearing on February 19, 2009. He offered himself as a placement for Nakeisha the same month. On March 20, 2009, the Division notified the father that a psychological and bonding evaluation was scheduled for six days later. He missed the evaluation because he did not receive the notice of it. The mother surrendered her parental rights on March 30, 2009, for an identified adoption, and the father was ordered to have supervised visitation at V.T.'s discretion. The father's evaluation was rescheduled for May 18, 2009, which he missed because he thought it was scheduled for another day. It was rescheduled for June 15, 2009.
During a monthly visit with V.T. and Nakeisha on May 19, 2009, V.T. told the worker that the father had not visited Nakeisha in weeks. She "told the worker that [the father] knows he is allowed to visit [Nakeisha] but he never does." Nakeisha's behavior was continuing to improve as a result of therapy sessions. On May 28, 2009, the court ordered the father's visitations with Nakeisha to occur at the Division office, because the father said he was unable to come to an agreement with V.T. on visitation. This court order required the father to confirm visits twenty-four hours in advance. On June 3, 2009, the Division called the father to schedule a visit between him and Nakeisha; when he did not answer, a message was left. On June 9, 2009, the Division sent the father a letter referencing the court order. The Division had been unable to reach the father by phone the same day because the number was not in service; it requested he contact the Division as soon as possible to establish a visitation schedule. The father then visited Nakeisha on June 19, 2009.
Dr. Barry A. Katz conducted a psychological evaluation of the father and a bonding evaluation of Nakeisha with the father on June 15, 2009. He had previously conducted a bonding evaluation of Nakeisha with V.T. on January 27, 2009. He testified regarding these evaluations during the ensuing trial. During the bonding evaluation, Nakeisha called her father "Daddy" and said she sees him frequently. She did not want to move from V.T.'s house to live with her father, but did want to continue visits with him.
During his psychological evaluation, the father said he was last arrested in 2003, which was not true, and returned home in 2006 after serving three years in prison. He said he had been arrested two or three times as a juvenile, rather than four, and an additional two or three times as an adult for distribution of CDS, rather than seven additional arrests. He admitted to using marijuana daily in 2003 and once every two months after his release, although during the trial, he claimed he had not used marijuana in over six months. He confirmed that he executed an identified surrender to Nakeisha in 2003 "because he was in jail at that time and felt that it was the best thing to do." The father acknowledged the infrequency and irregularity of his visits with Nakeisha from 2001 to 2003 and since 2007. While his mental-status examination revealed no major psychopathy, it did reveal a history of substance abuse, incarceration, and other criminal activity.
At this time, the father resided both at his mother's home and at the home of the mother of one of his other two children. The doctor opined the father's lack of a stable residence indicated his inability to provide the stable residence a child like Nakeisha needs. Additionally, the father was unemployed, having last worked in March 2008. He was collecting un-employment benefits while studying business administration management at Berkeley College in Newark. He wanted to be a part of Nakeisha's life and care for her on a full-time basis as her custodian. He also wanted her "to know win, lose or draw that her father did not back down or ever give up on her." He planned on having Nakeisha live with him, his son, and his son's mother, even though he did not live there full-time and his son's mother was not involved in Nakeisha's life. The father did not take any responsibility for his involvement with the Division or the length of time Nakeisha was in foster care.
The bonding evaluation results indicated that the father had an "extensive history of instability, antisocial behavior, parenting deficits, rapidly shifting and shallow emotion and difficulty in understanding the needs of [Nakeisha]." The father's inconsistent visits "continue[d] to pose a risk of harm to [Nakeisha's] ongoing development and functioning." Nakeisha's feelings of abandonment and loss were "exacerbated by continued and repeated abandonments on the part of [the father] toward [Nakeisha]." While the father met some of Nakeisha's needs during the bonding evaluation, he demonstrated an inability to meet Nakeisha's parenting needs throughout her life, and he had severe parenting deficits. He had no understanding of how his inconsistent visits and contact caused Nakeisha harm. His strong desire to remain a part of Nakeisha's life did not match his actual behavior, and he had become a destabilizing force in her life. He had "no understanding of [Nakeisha's] need for stability" and was "inconsistent in meeting [Nakeisha's] needs." These inconsistencies and failures to comply with recommendations contradicted the father's expressed desires to care for Nakeisha, and they had negative effects on Nakeisha and her functioning.
Overall, Dr. Katz found that the father "cannot parent [Nakeisha] at the current time, or in the foreseeable future," and his prognosis for the father's ability as a parent was "extremely poor." The father's psychological functioning and ability to parent Nakeisha was "[i]mpaired." Dr. Katz concluded, "It would be highly unlikely for [the father] to be able to develop stability for [Nakeisha] or to meet her needs as a parent. [The father's] parenting deficits are chronic in nature and show no signs [o]f remitting at the present time or in the foreseeable future." Nakeisha would not suffer harm from the termination of the father's parental rights, but she would suffer harm if removed from V.T., including "complete and utter destruction of [her] feelings of stability, ability to bond, and would be a trauma to which [she] would likely never recover." Dr. Katz agreed without hesitation with the Division's goal of terminating the father's parental rights.
Regarding the bonding evaluation of V.T. and Nakeisha, Dr. Katz concluded that Nakeisha had a strong bond with V.T. and viewed her as her psychological parent. Nakeisha would be put at "great risk for severe and ongoing emotional and behavioral dysfunction if she were to be removed from her current placement." Terminating the father's parental rights would not do more harm than good, and if Nakeisha's current placement were disrupted, she would suffer trauma from which she likely would not recover, causing her significant and permanent harm.
In a monthly summary covering June 2009 prepared by Nakeisha's Catholic Charities clinician, the clinician recounted Nakeisha's discussion of her family. Regarding her father, she said that she had not seen him in some time but hoped she would see him on her birthday. She enjoyed living with V.T. but would like to live with her mother. She appeared to be confused about her placement and permanency plan. The clinician indicated that past reports showed Nakeisha had increased instances of acting out, enuresis, and encopresis when she feared that her placement would change. The caseworker confirmed that while Nakeisha's behavior improved after living with V.T., it declined when visits with the father restarted, and she began urinating on herself. The Division believed that relative adoption by V.T. at this time was the best plan for Nakeisha, because it was permanent and stable and offered Nakeisha an opportunity to have all her needs met, whereas the father was not stable, inconsistent with visitation, and unable to provide a permanent plan for Nakeisha and her special needs.
On July 8, 2009, a Division worker entered a contact sheet detailing her contact with Nakeisha following a bonding evaluation with the father on June 15. Nakeisha said she had been happy to see her father, and she was fine with seeing him every two weeks in the worker's office. On June 25, 2009, the father rescheduled his visit with Nakeisha for July 2, 2009, without a reason. When the father showed up for the visit on July 2, he was informed that Nakeisha was not produced because he had not given the office twenty-four-hour notice. A makeup visit was scheduled for July 9, 2009. On July 8, the worker attempted to confirm the visit for the next day; she was unable to do so "because [the father] did not have minutes on his phone." The father did not confirm the appointment, nor did he appear for the visit the next day. The same sequence of events occurred two weeks later on July 22 and 23. The caseworker later met with the father on July 31, 2009, at which time he planned for Nakeisha to live with him, although he lived with the mother of his son and was unemployed. A successful visit occurred on August 3, 2009.
The termination case against the father then proceeded to trial on August 4 and 10 and September 1, 2009. After the caseworker and Dr. Katz testified to the facts discussed above, the father testified on his own behalf. He testified that he tried to call Nakeisha every day, but he would be given various reasons why she was not available to talk. He was unemployed at the time of trial but had applied for several jobs. The father explained his incarceration from 2003 to 2006 was for possession of CDS with intent to distribute and a violation of parole. This was a product of "bad decision-making." Regarding his plans for Nakeisha, the father said he would "be the father that [he is] supposed to be" by finding a job, spending more time with her, and relying on his support system, including his girlfriend with whom he was then living. He testified that he completed a drug treatment program and attended parenting skills classes, but he was not sure when. He was concerned with Nakeisha's current placement because the mother's family allegedly had a history of sexual abuse. He testified he asked about kinship legal guardianship (KLG), and even though he was told it was not possible, he would consider it because he "would still have [his] parental rights."
The trial judge issued a written decision on October 13, 2009, which she read into the record that day. The judge ultimately found the Division had met its burden under the four-prong test of N.J.S.A. 30:4C-15.1 and terminated the parental rights of the father to Nakeisha. This appeal followed.
The scope of review of a trial judge's termination of parental rights is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). The trial judge's findings of fact 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, 483-84 (1974); 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 trial court's credibility determinations. Ibid. Deference to such determinations 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). 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). 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. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed on 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 State to establish its case by clear and convincing evidence. E.P., supra, 196 N.J. at 103; K.M., supra, 136 N.J. at 557 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).
The best-interests standard was first articulated by the Supreme Court 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).]
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.").
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.
The father limits his arguments on appeal to the second and third prongs of N.J.S.A. 30:4C-15.1(a) and to issues regarding KLG. By not briefing any issue regarding prongs one and four of N.J.S.A. 30:4C-15.1(a), the father has waived any challenge to those issues. Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2010); see also W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 459 (App. Div. 2008) (issue not briefed by the appellant was deemed waived). The following analysis is thus limited to a discussion of the father's challenges to prongs two and three of N.J.S.A. 30:4C-15.1(a) and the father's argument regarding KLG.
The father argues that the Division did not prove the second prong of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. He contends that the testimony of the caseworker was not clear and convincing because she admitted to not ascertaining whether the father completed parenting skills and drug- counseling programs. The father also takes issue with the case-worker's statement regarding his living situation and the finding that he was financially unstable. He urges that Dr. Katz's evaluations "are bounded by hedge words" and do not actually state that he is unfit. Finally, the father claims that he was wrongfully identified as the cause of Nakeisha's emotional problems in that neither the trial judge nor Dr. Katz considered whether the case involved sexual abuse.
The Division and the Law Guardian respond that the father is unable or unwilling to provide a safe home for Nakeisha. They note that the father gave four different home addresses to the Division; did not produce any certification that he had completed the drug or counseling programs; tested positive for marijuana throughout this litigation; and had not explained his "evasion of financial responsibility for [Nakeisha's] care and well-being." The Law Guardian points out that the psychological and bonding evaluations show that the father has no plan to protect Nakeisha from harm and arguments to the contrary are unsupported by the evidence. Citing the father's inconsistent visits, their traumatic effect on Nakeisha, and noncompliance with services and recommendations, they both argue the father is unable to parent Nakeisha now or in the foreseeable future.
After initially finding the caseworker to be credible and the father not credible, the trial judge, in addressing N.J.S.A. 30:4C-15.1(a)(2), found that the father had not cured the initial harm that endangered Nakeisha's well-being despite having been given multiple chances and various services. He did not follow the recommendations of Dr. Brown, including completing parenting skills classes, achieving financial stability, and securing stable residency. The judge found the father had unstable housing, rejecting his contention that he lived with the mother of his son since December 2008, because he did not inform Dr. Katz of that address in June 2009 or the Division until the end of July 2009. The judge noted that the father was "unable or unwilling to visit with [Nakeisha] on a consistent basis throughout these proceedings," which had a traumatic effect on her. Finally, the judge determined that delaying permanency would add to Nakeisha's harm and the father cannot provide her with permanency because, according to the unrebutted testimony of Dr. Katz, he is unable to parent Nakeisha, he does not have residential stability, and he has not complied with the services Dr. Brown found to be necessary for a reunification. The judge thus found the Division satisfied N.J.S.A. 30:4C-15.1(a)(2) by clear and convincing evidence.
Under the second prong of the best-interests standard, the Division must prove by clear and convincing evidence that "[t]he 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-15.1(a)(2). 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." Ibid. This prong focuses on parental unfitness. In re Guardianship of D.M.H., 161 N.J. 365, 378-79 (1999). It may be satisfied by "indications of parental dereliction and irresponsibility, . . . the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353.
Here, the trial judge's findings of fact are supported by adequate, substantial, and credible evidence in the record. The father did not complete parenting skills classes, as evidenced by the absence notices he received and the caseworker's testimony. He did not achieve financial or residential stability, as he was unemployed at the time of trial and gave multiple responses regarding his current residence. Multiple missed visits were recorded in the contact sheets, and the caseworker recounted the father's inconsistent visitation at trial. Furthermore, the trial judge's finding that these missed visits had a traumatic effect on Nakeisha was consistent with Dr. Katz's unrebutted report and testimony. Finally, the finding that delaying permanency would add to Nakeisha's harm is supported by Dr. Brown's and Dr. Katz's reports, as well as by testimony that the father was a destabilizing force in Nakeisha's life who could not appropriately parent Nakeisha at the time of trial or in the foreseeable future. In short, the trial judge's findings on prong two should not be disturbed.
Additional evidence in the record further shows that the Division met its burden under the second prong of N.J.S.A. 30:4C-15.1(a). First, the father's multiple incarcerations after Nakeisha's birth show an unwillingness on his part to eliminate any harm facing Nakeisha. While incarceration alone is insufficient to terminate his parental rights, the father'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. In re Adoption of Children by L.A.S., 134 N.J. 127, 136-37, 143 (1993). The father's multiple incarcerations support a finding that he was unwilling to parent Nakeisha and to assist in eliminating the harm facing Nakeisha, including her behavioral issues. Similarly, the father showed his unwillingness to eliminate the harm facing Nakeisha when he did not offer himself as a placement for Nakeisha in 2007 after the litigation was reopened. If he had been willing to eliminate the harm, he would have offered himself as a placement. Instead, he offered his parents.
Second, the Division proved the father was unwilling to provide a safe and stable home for Nakeisha. Foremost, the father was unwilling in 2007 to provide a home for Nakeisha, instead offering his parents as a placement. He did not complete parenting skills classes, which certainly would have allowed him to create a more stable environment for Nakeisha. His inconsistent visits further showed his instability. The father admitted at trial that he was unemployed. His employment prospects and living situation were tenuous at best. According to the unrebutted report and testimony of Dr. Katz, the father had an "extensive history of instability" and was a destabilizing force in Nakeisha's life. Thus, the Division proved that the father was clearly unable and unwilling to provide a safe and stable home for Nakeisha.
Finally, Dr. Katz's report and testimony clearly support a finding that delaying permanent placement of Nakeisha with V.T. would add to the harm. The father's "continued and related abandonments" of Nakeisha exacerbated her feelings of abandonment and loss. Moreover, separating Nakeisha from V.T. would cause her harm, including "complete and utter destruction of her feelings of stability, ability to bond, and would be a trauma to which [she] would likely never recover." Lastly, Nakeisha had a strong bond with V.T. and removing her from V.T. would place her at great risk of "severe and ongoing emotional behavioral dys-function" and cause her to suffer trauma from which she likely would not recover. Clearly, this unrebutted evidence proves that delaying permanent placement of Nakeisha with V.T. will add to her harm.*fn3 In sum, the Division proved the second prong of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence, and the trial judge's findings on this issue should not be disturbed.
The father next argues that the Division did not prove N.J.S.A. 30:4C-15.1(a)(3), because it "offered only an initial psychological and bonding evaluation, a parental skills program, and a drug counseling program." The father contends that the Division should have exerted more effort in attempting to locate him while he was in prison. He also asserts that the trial judge erred in imputing to him services offered to the mother. Finally, the father disputes that alternatives to termination of parental rights were considered, although he does not point to specific individuals who should have been considered as alternatives.
The father further argues that the judge plainly erred in considering KLG only under N.J.S.A. 3B:12A-6(d) and not under 42 U.S.C.A. § 673(d)(3). He urges that the Fostering Connections to Success and Increasing Adoptions Act of 2008 (the Act)*fn4 presents a change in Congressional philosophy as to what is in a child's best interests regarding adoption and KLG. The father posits that the statute contemplates adoption as not necessarily establishing permanency and the failure of the Division to pursue KLG is a disservice to potential guardians and adopted children.
The father's final argument regarding alternatives to termination posits that the Division did not fulfill its obligation under N.J.S.A. 30:4C-91. He states that the Division never explained KLG to V.T. and that only adoption was being considered. He asserts that "we do not know whether [V.T.] expressed an interest in adopting [Nakeisha]" because there was no other permanency plan; had the Division fulfilled its obligations, V.T. might have preferred KLG. Similarly, the father speculates that "we do not know that [V.T.] will, in fact, adopt [Nakeisha]," apparently because A.G. did not adopt her previously and that situation may occur again with V.T.*fn5 The father concludes that KLG "should have been the alternative to termination of [his] parental rights."
The Division claims that the judge considered alternatives to termination. The Division lists the services it offered the parents, including substance-abuse assessments and treatment, case planning, evaluations to assist in planning and parenting skills, and visitation. The Division contends that the father "did not comply sufficiently, if at all" with the offered services, making reunification with Nakeisha impossible. The Division states it considered the paternal grandmother as an alternative to termination and urges that KLG should not be considered because V.T. had clearly articulated her desire to adopt Nakeisha. The Division further argues that the Act is inapplicable because the father does not have standing to raise the argument and the Act does not outline the conditions necessary to become a KLG. Finally, the Division argues that the record is devoid of any evidence that the Division did not discuss KLG with V.T. and, contrary to the father's arguments, the contact sheets reveal V.T. discussed adoption with the Division multiple times.
The Law Guardian also rejects the father's attempt to use the Act as a basis for reversal. The Law Guardian argues that the Act does not substantively change how states administer their child welfare programs, nor does it render New Jersey's legal standards inapplicable. The Law Guardian points out that the Division need not consider KLG as an alternative to termination when adoption is feasible and likely. According to the Law Guardian, KLG is inappropriate here because V.T. wished to adopt Nakeisha.
Regarding prong three of N.J.S.A. 30:4C-15.1(a), the judge found the Division offered a variety of services to the subject family "at every identifiable stage of the Division's involvement with [Nakeisha]." These included visitations, a case plan, a paternity test, relative assessments, psychological and psychiatric assessments, bonding evaluations, parenting skills classes, substance-abuse treatment, and drug assessments. Yet, despite these services being offered, the father was "consistently non-compliant and failed to participate actively and appropriately in all services required for reunification." The judge found that KLG was not appropriate because V.T. was "ready, willing and able to adopt [Nakeisha]." The judge also noted that relative placements were considered as alternatives to termination. Based on the foregoing, the judge found that the Division proved N.J.S.A. 30:4C-15.1(a)(3) with clear and convincing evidence.
Under the third prong of the best-interests standard, the Division must prove by clear and convincing evidence that it "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." N.J.S.A. 30:4C-15.1(a)(3). "Reasonable efforts" include parental consultation; developing a plan for appropriate services; providing services to further the goal of reunification; informing the parent of the child's progress, development, and health; and facilitating visitation. N.J.S.A. 30:4C-15.1(c). What is "reasonable" depends on the circumstances of each case. D.M.H., supra, 161 N.J. at 390.
With respect to whether the Division satisfied its obligation to make reasonable efforts to provide services, it is clear from the facts that the Division satisfied its duty. As it points out, the Division specifically provided the father with numerous services, including: several visitation plans; multiple meetings; drug, alcohol, substance-abuse, and CADC assessments; outpatient treatment; transportation for visitations; a paternity test; notification of court dates and scheduled visitations with Nakeisha; multiple psychological and bonding evaluations; and parenting skills classes. The father did take advantage of some services. For example, he completed the CADC assessment; attended some visitations and parenting skills classes; and underwent the psychological and bonding evaluations.
However, the father failed to adequately take advantage of many of the services. He frequently and repeatedly missed visits with Nakeisha, as his visitation was sporadic and inconsistent. He did not complete the parenting skills classes, missing at least half of the eight-week program. He did not make up the classes even though he was permitted to do so. He did not attend outpatient treatment as recommended. He missed the psychological and bonding evaluations twice before finally seeing Dr. Katz. He missed many court appearances as well. Based on these facts, the trial judge did not err in finding that the Division satisfied the requirement of N.J.S.A. 30:4C-15.1(a)(3) that it provide the father with reasonable services.
The trial judge also did not err in finding that alternatives to termination were considered. Starting in 2001, the Division considered A.G., V.T., J.A., D.N., and the paternal grandparents as potential placements for Nakeisha. All except V.T. eventually withdrew from consideration. After A.G. indicated she no longer wished to adopt Nakeisha, V.T. expressed her desire to adopt Nakeisha. V.T. was also fully licensed to care for Nakeisha. Where adoption is both feasible and likely, KLG is inappropriate. N.J. Div. of Youth & Family Servs. v. S.P., 180 N.J. 494, 513 (2004); N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 88 (App. Div. 2003). Here, adoption by V.T. was feasible at the time of trial, because she was fully licensed to care for Nakeisha, and it was likely, because V.T. wanted to adopt Nakeisha. Therefore, KLG would be inappropriate.
In arguing that the Act somehow changes the Division's obligations in this matter, the father specifically cites 42 U.S.C.A. § 673(d)(3) as the basis of his argument. That statute addresses KLG assistance payments for children and a child's eligibility for such a payment. 42 U.S.C.A. § 673(d)(3). It reads in pertinent part:
(A) In general. A child is eligible for a kinship guardianship assistance payment under this subsection if the State agency determines the following:
(i) The child has been--
(I) removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination to the effect that continuation in the home would be contrary to the welfare of the child; and
(II) eligible for foster care maintenance payments under section 472 [42 U.S.C.A. § 672] while residing for at least 6 consecutive months in the home of the prospective relative guardian.
(ii) Being returned home or adopted are not appropriate permanency options for the child.
(iii) The child demonstrates a strong attachment to the prospective relative guardian and the relative guardian has a strong commitment to caring permanently for the child.
(iv) With respect to a child who has attained 14 years of age, the child has been consulted regarding the kinship guardianship arrangement.
(B) Treatment of siblings. With respect to a child described in subparagraph (A) whose sibling or siblings are not so described--
(i) the child and any sibling of the child may be placed in the same kinship guardianship arrangement, in accordance with section 471(a)(31) [42 U.S.C.A. § 671(a)(31)], if the State agency and the relative agree on the appropriateness of the arrangement for the siblings; and
(ii) kinship guardianship assistance payments may be paid on behalf of each sibling so placed. [Ibid.]
This statute has no bearing on this case. First, the statute addresses KLG assistance payments, not parental rights and the termination of such rights. Second and similarly, the statute does not impact or otherwise alter New Jersey's statutory landscape regarding the termination of an individual's parental rights. As such, the trial judge did not plainly err in failing to account for this statute, and we reject the father's argument on this point.
Finally, we also reject the father's argument that the Division did not fulfill its obligation under N.J.S.A. 30:4C-91. That statute provides:
The Department of Human Services shall, in easily understandable language:
a. inform individuals, of whom the department is aware, who may be eligible to become kinship legal guardians of:
(1) the eligibility requirements for, and the responsibilities of, kinship legal guardianship; and
(2) the full-range of services for which kinship legal guardians may be eligible and the eligibility requirements for those services; and
b. inform current kinship legal guardians of the full-range of services for which kinship legal guardians may be eligible and the eligibility requirements for those services. [N.J.S.A. 30:4C-91.]
There is no evidence in the record that the Division satisfied or failed to satisfy its obligation under this statute. As the Division points out, it would be inappropriate to reverse the trial judge's decision based on a bare assertion without any evidence to support the father's argument. Considering that V.T. was ready, willing, and able to adopt Nakeisha, and that KLG is inappropriate where adoption is both feasible and likely, S.P., supra, 180 N.J. at 513; S.V., supra, 362 N.J. Super. at 88, the alleged failure of the judge to make a specific fact-finding that the Division failed to meet its obligations under N.J.S.A. 30:4C-91 was not "clearly capable of producing an unjust result," Rule 2:10-2.