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Division of Youth and Family Services v. H.W


February 2, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-20-09.

Per curiam.



Submitted December 7, 2010

Before Judges Carchman and Graves.

Defendant H.W., the father of S.D.W., appeals from a judgment of the Family Part terminating his parental rights and awarding guardianship to plaintiff New Jersey Division of Youth and Family Services (DYFS or the Division). The narrow issues raised on this appeal are whether DYFS met its burden under prong three of the four prong test articulated in N.J.S.A. 30:4C-15.1(a), and further, whether DYFS failed to pursue Kinship Legal Guardianship (KLG), N.J.S.A. 3B:12A-1(c), as an alternative to termination. We conclude that the judge's finding that DYFS established prong three by clear and convincing evidence was supported by the record. We further conclude that KLG was not a viable alternative. Accordingly, we affirm.

While the issues are narrow, our consideration of this appeal requires an expansive recitation of the relevant facts adduced from the record. S.D.W. was born on July 16, 2002, to A.W.*fn1 and defendant, then 22 years old. When S.D.W. was ten months old, defendant was tried and convicted for aggravated assault on a police officer and possession of a firearm and has remained in prison through much of his daughter's life. Although he was released from prison in 2006, he violated the terms of his parole within six months and was again incarcerated; his scheduled release is in May 2011.

The Division's involvement with this matter started shortly after the birth of S.D.W., when reports showed that S.D.W. was potentially at risk in the care of her parents. Specifically, DYFS suspected that S.D.W.'s parents had been "abusing drugs and neglecting [S.D.W.] . . . and that [S.D.W.] was left home with [defendant] while he was using marijuana." According to DYFS records, a caller informed the Division that the parents were "not providing adequate supervision of [S.D.W.]" and had witnessed the mother leaving S.D.W. "alone in the home while [A.W.] went to use the phone." DYFS eventually made contact with the family in January 2003, at which time A.W. denied the allegations. Meanwhile, defendant also denied that he ever used drugs but conceded that he "used to sell drugs."

After its initial investigation in 2003, DYFS continued to closely monitor S.D.W.'s home and probed additional reports of the family's suspicious conduct. On February 8, 2005, another caller notified DYFS that A.W. had taken a "plastic serving spoon and beat her child . . . ." The caller could not specify whether the child suffered any injuries. By May 2005, the Division learned that S.D.W. "had a broken leg" and that "[A.W.] admitted that she had delayed in getting [S.D.W.] medical care for the injury."

Following this incident, and coupled with news that A.W. was perpetually "drunk" and repeatedly neglected the young girl, DYFS intervened and removed S.D.W. from A.W.'s care. On May 20, DYFS obtained a signed consent from A.W., incorporated in an order, granting the Division permission to temporarily pursue foster care; the agreement was set to expire on June 13. Prior to the expiration of the temporary consent order, several relatives, including a maternal grandmother, S.W., and a maternal great-aunt provided care for S.D.W.

Upon the expiration of the temporary consent order, DYFS filed a complaint for custody of S.D.W. and began an extensive examination into whether either A.W. or defendant were fit to be parents. The judge ordered that S.D.W. be placed into the "immediate custody, care and supervision of [DYFS]" as the judge concluded that the allegations of A.W.'s problems with intoxication were credible.

Thereafter, the judge ordered that S.D.W. be kept in DYFS custody while A.W. submitted to various psychological and substance abuse evaluations. At that time, the judge also granted physical custody of S.D.W. to a paternal aunt, C.W., who cared for S.D.W. until March 2006. On August 18, 2005, the judge ordered A.W. to undergo drug treatment, and later required A.W. to attend Alcoholics Anonymous meetings. Between January and March 2006, the trial court evaluated another relative, the maternal grandmother, and required her to undergo psychological tests to determine if she could be considered as a placement option for S.D.W.

While A.W. received treatment for substance abuse, in early 2006, DYFS conducted follow-up visits with C.W. to ensure S.D.W. was receiving adequate care. Those investigations revealed the possibility that C.W. was "neglect[ing] and abus[ing]" S.D.W. by "leaving [her] with an unapproved caregiver" and that S.D.W. herself "was fearful of . . . physical abuse." DYFS also received reports that S.D.W. had disclosed to caseworkers that someone "would take a belt and hit her in the eye . . . ." In order to determine the truth in these allegations, DYFS visited C.W.'s home but could only confirm that C.W.'s home had "running water" and was otherwise "safe and free [from] . . . initial risks." Nevertheless, DYFS elected to remove S.D.W. from C.W.'s care and place the child into a foster home. C.W. later declined when an inquiry was made as to further care for the child.

While S.D.W. was living with her foster family, the trial court continued to monitor A.W.'s progress to determine if she could eventually care for her daughter.

Ultimately, DYFS filed a guardianship complaint. After ordering various tests, the judge was advised by one of DYFS' consultants, Dr. Genevieve Chaney, that defendant has had a chaotic childhood, including possible parental substance abuse and domestic violence. Chaney also noted that defendant has had several run-ins with law enforcement - from drug sales to aggravated assault on a police officer - dating back to when he was a juvenile. She concluded that defendant required more treatment to ensure he could care for S.D.W. given his instability, his lack of formal work experience and a disconcerting level of parenting knowledge. A bonding evaluation on January 24, 2008, demonstrated that S.D.W. was "scared" of being around her father.

At the same time as defendant's evaluations, the trial judge also requested that DYFS proactively seek out other relatives, including several of defendant's sisters, as part of its statutorily required obligation to explore KLG options in lieu of foster care or adoption. The first sister, M.W., was ruled out immediately because she "was not interested in long- term care . . . ." By February 2008, DYFS had located Anna*fn2 , a sister who had expressed a desire to serve as S.D.W.'s guardian. As the preliminary assessments on Anna seemed promising, on March 28, 2008, the judge granted Anna temporary kinship legal guardianship for 12 months and ordered that the complaint for guardianship be dismissed. The judge also granted weekend visitation to Anna and requested that she attend therapy sessions with S.D.W.

However, DYFS soon began to question Anna's fitness to be guardian following interviews with S.D.W. and psychological evaluations that suggested S.D.W. was not entirely safe or happy under Anna's care. An evaluation conducted at the foster home demonstrated that although S.D.W. was generally a "very irritable, angry, [and] aggressive" child, she "prefers to remain with [the foster mother]" and "dislikes . . . her home." Consequently, the psychologist concluded that as S.D.W. "enjoys living with [the foster mother]" rather than her "Aunt [Anna]," DYFS should "more thoroughly examine[]" the girl's "adoption by her aunt." Later, a telephone conversation between a DYFS employee and S.D.W.'s foster mother unearthed the possibility of suspicious activity in the home, which included S.D.W. witnessing "many men . . . coming and going . . . drinking alcohol" and a cousin forcing S.D.W. to do "nasty things. . . ." Although Anna denied S.D.W.'s allegations, by January 2009, she eventually withdrew her application due to employment issues and told DYFS that she "would no longer be able to care for [S.D.W.]."

In March 2009, A.W. voluntarily surrendered her parental rights in favor of the foster parents.

After Anna's withdrawal as a caretaker and A.W.'s surrender, DYFS reopened its case and filed a new complaint for guardianship to terminate defendant's parental rights so S.D.W. could freely live with her foster parents. On June 1, 2009, the judge conducted a hearing to determine if defendant was fit to care for his daughter and ordered him to submit to a series of psychological and bonding evaluations. Several evaluations were performed on defendant while he was in prison, many of which reflect H.W.'s violent propensities, including statements to police officers that defendant would "drive a truck load of explosives" into the jail upon his release.

While DYFS waited for the results of defendant's evaluations, it visited the home of another paternal aunt, J.W., to assess whether she was an appropriate legal guardian. An investigation of J.W.'s home environment yielded unsuitable results, including the fact that J.W. was planning to "use a . . walk-in-closet" as a room "for [S.D.W.] to stay in." On the day of the home visit, a caseworker observed that although J.W.'s home had an adequate food supply and functioning utilities, she was troubled that J.W.'s ten-month-old son would likely share a bedroom with S.D.W. Upon a request from DYFS that the boy be moved into J.W.'s room so that S.D.W. could sleep alone - DYFS regulations would not allow S.D.W. to share a bedroom with a person of the opposite sex - J.W. "adamantly refused, stating she needed her own space."

Instead of acceding to DYFS' request, J.W. told the caseworker that she had another room in mind for S.D.W. However, as that room was currently being used as a "walk-in closet," DYFS concluded that it was not suitable for S.D.W., especially given that "there [wa]s no door to the room," except a door that led outside, and it was "too small to fit [even] a twin size bed" of about "6.25 feet long x 3.25 feet wide." By July 2009, DYFS concluded that J.W.'s plan for S.D.W. would not be satisfactory and denied her as being a possible kinship placement even though J.W. steadfastly maintained she "'want[ed] to keep [S.D.W.] in the family'" until her brother "g[o]t out of jail."

After DYFS dismissed J.W. as a viable placement option, it focused its efforts to reunite defendant with his daughter and was ordered by the court to continue assisting him with the rehabilitation process. Additional psychological evaluations were conducted by Dr. Linda Jeffrey because defendant had expressed interest in participating in them. Although those evaluations revealed that defendant had held no jobs and admitted to selling drugs, it also revealed that he was actively engaged in "[p]arenting [a]ctivities" because "he d[id] not want his daughter to experience multiple foster placements." Moreover, defendant "want[ed] to avoid his daughter coming back when she [was] an adult and asking him where he was . . . ." In response to what defendant was doing to prove his fitness, he said he was "pursuing training in welding and masonry" and would do whatever he could to avoid "his daughter being adopted."

Despite defendant's assurances that he would properly care for S.D.W., the psychologist concluded H.W. was not ready for such a role:

[Defendant] has significant obstacles to overcome and skills to master in order to achieve adult stability . . . let alone to assume parenting responsibility . . . .

[H]e is not prepared to provide the minimum level of safe parenting for his daughter. While he expresses a desire to be there for his child, it is unlikely that he is prepared to meet the physical and emotional needs of his child for reliable, attuned and predictable parenting. He is not prepared to serve as a model for rule-governed behavior, to teach his child coping skills . [and] [i]t is unlikely that [defendant] is prepared to view his child as a separate person and to distinguish her needs from his own.

A subsequent bonding evaluation in October 2009 with S.D.W. and her foster mother reaffirmed the psychologist's conclusions about H.W. as S.D.W. was securely attached to her foster mother, noting that she "functions as her psychological mother" and would suffer serious and enduring harm should there be a "[s]everance of [that] relationship .. . ."

The guardianship trial commenced in November 2009, and DYFS produced Linda Burnett and Monica Craig, both of whom were employed by the Division during H.W.'s and A.W.'s evaluations. In her testimony, Burnett specified the Division's reasons for disqualifying C.W., Anna and J.W., stating that Anna had simply "sent a rule-out letter indicating" that "she was no longer interested . . . ." With respect to C.W., Burnett confirmed that S.D.W. was removed because of an abuse and neglect allegation, but on cross-examination by both DYFS and counsel for S.D.W., could not elaborate the specifics as to why DYFS immediately ruled her out.

As for J.W., Burnett reiterated that DYFS' concerns about the room's size and lack of privacy, and J.W.'s desire to only be a temporary guardian for S.D.W. until H.W. was released from prison, all confirmed that J.W. was not suitable for placement. Specifically, she noted that:

Considering [S.D.W.'s] age, which is seven years old, she is entitled to certain privacy . . . . A bedroom needs certain requirements in order to be classified . . . [and] a door is one of those things . . .

[T]here would be no direct supervision by the potential care-giver.

Burnett further observed that "[i]f [J.W.] had changed her mind regarding having her . . . [son] sleep in the bedroom with her[,]" DYFS would have had continued considering J.W. Likewise, Craig, a DYFS resource worker, offered that because J.W. "wouldn't budge" from giving S.D.W. the "mud room," she had to be ruled out. Craig reiterated that the room was so small that "if [J.W.] were to try and squeeze [a] twin-size mattress there, [it] would be butted up against the door so you wouldn't be able to open the door." Moreover, J.W.'s financial circumstances, which included being on welfare and receiving no child support, prevented her from reasonably being able to provide for S.D.W.

In challenging DYFS' statements about her home, J.W. asserted that DYFS never gave her a fair chance to determine whether S.D.W. could stay with her. J.W. contended that her home was actually a three-bedroom house and that because only she and her son stay there, she converted one of the bedrooms into a closet. She claimed that the closet had plenty of room for S.D.W.'s "bed, her dresser, her toys, [and] whatever she wanted in there." The room was reportedly about eight feet long and 12 feet wide. In response to the allegations that she refused to restructure her sleeping arrangements, J.W. professed that she would "do anything [she] can do to get [S.D.W.] out of the [foster] system," and expressed a preference for her niece to be with her because she was "Aunt [J.] . . . [and] her best interest is to be with us." However, she did not deny that she planned to give S.D.W. to her brother once he was released from prison.

In his own defense, defendant asserted that he did not wish for his parental rights to be terminated. He maintained that he did not want his daughter to stay in foster care or be adopted because she was "never going to get treated the . . . same" as she would be if she were with her own family. Moreover, in response to S.D.W.'s reaction at the jailhouse upon seeing him, he claimed that his daughter was only frightened by the officers and not him. Finally, he understood that once released from prison in May 2011, he would have to "gradually work [his] way" into his daughter's life and would not immediately "take her from her foster family." However, defendant was clear about with whom S.D.W. should live: "I believe . . . one of my relatives should take [S.D.W.] . . . . [I]f I can't do it, let one of my sisters . . . raise her, which they are willing and capable to do."

He admitted that he had been incarcerated for a lengthy amount of time, beginning when he was 18 years old and continuing through the trial, with the exception of a six-month break in 2006. In addition to the assault and drug possession charges, defendant's criminal history includes: sentences for harassment and theft as well as charges for "[t]erroristic threats" on a police officer after claiming he was a "blood gang member" in May 2009 and "threaten[ing] violence" as late as July 17, 2009. He also conceded that "selling drugs" was the "only employment" he ever had. Finally, he also admitted he has only had a tenth grade education.

The trial judge rejected defendant's claim that he was willing to rehabilitate. In an oral decision, Judge Schlosser presented an exhaustive recounting of the case's procedural history and recited the findings of all of DYFS' various evaluations on defendant, A.W., and defendant's sisters. In concluding that defendant was not fit, he first noted that defendant and S.D.W. had "rarely, if ever, lived together[,]" and then analyzed defendant's situation under each of the four prongs required by N.J.S.A. 30:4C-15. He found that because there was "no relationship" between defendant and his daughter, removing S.D.W. from her foster family would "cause her serious and enduring psychological harm or emotional harm." As for whether DYFS had made "reasonable attempts," the judge lauded the Division for making "more than reasonable attempts to keep [S.D.W.] within [defendant]'s family" but that it had unfortunately "not worked out." The judge noted that because defendant has no realistic plan to be a parent, there was no reason compelling enough to force S.D.W. out of the foster home.

Based upon the credible evidence it is clear that [defendant] has no experience in parenting. He clearly has no history of doing so. He lacks the psychological well being of being even a minimally acceptable parent. . . . [A]doption will give [S.D.W.] what is clearly in her best interest, a loving, stable and permanent home.

Finally, as for J.W., the judge concluded that her plan was not well conceived. This appeal followed.

As we have noted, defendant challenges the finding of compliance with prong three as well as the KLG issue. We now address these issues.

"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); see N.J.S.A. 30:4C-1(a) (stating that the "preservation and strengthening of family life is a matter of public concern"). Courts must adhere to "strict standards for the termination of parental rights" and "parental unfitness" should not be presumed. K.H.O., supra, 161 N.J. at 347.

In spite of this presumption against unfitness, the State is entrusted with a "parens patriae" obligation to "protect the welfare of children." Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). Consequently, to reconcile the State's and parents' competing interests, the termination of parental rights must focus on the "best interest of the child." N.J.

Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986). Under "the best interests" standard, parental rights may be terminated if, through clear and convincing evidence, the following four prongs are satisfied:

(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).]

We focus our inquiry on the third prong, mandating reasonable efforts to provide services as well as alternatives to termination. N.J.S.A. 30:4C-15.1(c) defines the meaning of "reasonable efforts," which consist of actions by the Division "to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure . . . ." Such efforts include:

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

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

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

(4) facilitating appropriate visitation. [Ibid.]

See also In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999) (requiring reasonable efforts as demonstrated by "promot[ing] and assist[ing] in visitation and keep[ing] the parent informed of the child's progress in foster care . . . [and] also inform[ing] the parent of the necessary or appropriate measures he or she should pursue in order to continue and strengthen that relationship"); N.J.S.A. 30:4C-11.3 (articulating that "the health and safety of the child and child's needs for permanency . . . [are] paramount" when assessing whether reasonable efforts have been taken). Finally, a "parent's lengthy incarceration is a material factor that bears on whether parental rights should be terminated." In re Adoption of Children by L.A.S., 134 N.J. 127, 140-43 (1993) (emphasizing the "need for children to have permanent and stable relationships with a nurturing parent figure").

Here, defendant contends that DYFS failed to satisfy the third prong because defendant had not "received [any] assistance . . . to correct [his] circumstances" and specifically, because DYFS had not "sen[t] someone to the facility where [he] [wa]s incarcerated to educate and provide services." Finally, defendant criticizes the Division for wrongly assuming that he "could not benefit from said services" because he was determined to take courses to "improve himself and be a good parent."

The record demonstrates that DYFS had undertaken efforts to reunite defendant with his daughter in spite of defendant's circumstances. As defendant's frequent incarceration -- starting from when S.D.W. was only ten months old -- made him absent throughout the majority of his daughter's life, the Division could not feasibly provide him with the services that he contends they failed to offer, nor were they required to do so. Consequently, the Division was forced to work around defendant's incarceration to facilitate communication between defendant and S.D.W. by encouraging telephone conversations and scheduling psychological and bonding evaluations of both S.D.W. and defendant. DYFS cannot be held responsible for the failure of its efforts to reunify S.D.W. with her father. Her fear of defendant and her attachment to her foster family were factors beyond the control of the Division. See K.H.O, supra, 161 N.J. at 352 (noting that "prolonged inattention to a child's needs, . . . encourages the development of a stronger, 'bonding relationship' to foster parents") (citations omitted).

Moreover, DYFS could not have predicted that psychologists would conclude defendant was "not prepared to provide the minimum level of safe parenting for his daughter." Defendant's incarceration was not the only factor that warranted terminating his rights; it did, however, play a significant role in demonstrating that S.D.W. would not be in a "permanent and stable relationship[] with [defendant as] a nurturing parent figure." L.A.S., supra, 134 N.J. at 140. The judge correctly noted that the Division had made "more than reasonable attempts" to reunify S.D.W. with her biological father but that those efforts had just not "worked out."

Furthermore, defendant's reliance on D.M.H., supra, to advance the theory that the Division did not actively attempt to help him rehabilitate and rekindle his relationship with his daughter is misplaced. Contrary to defendant's view, D.M.H. categorizes an agency's efforts as being reasonable "when properly viewed in light of [its] efforts on behalf of [a] family as a whole." 161 N.J. at 391. In assessing the facts "as a whole," the Division made significant attempts to maintain S.D.W with her father or his family. DYFS had been involved with this family since 2003, nearly seven years prior to this appeal, and repeatedly encouraged A.W., S.D.W.'s mother, to receive counseling and assistance with substance abuse. DYFS also assessed the list of relatives provided by defendant and carefully and individually considered those suggested before ruling them out as alternate guardians. The record describes countless visits with the home and contact sheets acknowledging numerous conversations between the foster family, the biological family and DYFS. As in D.M.H., where services were provided to other members of the family and "indirectly helped [defendant] as a parent[,]" here, too, DYFS did its best to honor defendant's wish that his daughter remain in her biological family. 161 N.J. at 391. We find no error here.

We reach the same result regarding a KLG. Under the third element of N.J.S.A. 30:4C-15.1(a), the court must also determine whether there are any reasonable alternatives to termination. In re Guardianship of J.T., 269 N.J. Super. 172, 187 (App. Div. 1993). One such alternative, KLG, is a "permanent placement option, beyond custody, without rising to the level of termination of parental rights, for caregivers in relationships where adoption is neither feasible nor likely . . . ." N.J.S.A. 3B:12A-1(c). This alternative consists of "[a] transfer to the caregiver of certain parental rights" but also allows the birth parent to "have some ongoing contact with the child . . . ."

N.J.S.A. 3B:12A-1(b).

Here, defendant contends that the Division failed to adequately consider J.W. as a possible KLG to S.D.W. The record is to the contrary. DYFS visited J.W.'s home and conducted an evaluation to determine whether she could serve as a KLG. Ultimately, DYFS objected to J.W.'s plan to keep S.D.W. in a room the size of a "walk-in closet" that was "too small to fit [even] a twin size bed." Moreover, when asked whether J.W. would alter her sleeping arrangements by keeping J.W.'s infant son with her so that S.D.W. could have her own room, J.W. had "adamantly refused." DYFS also rightfully frowned upon J.W.'s plan to return S.D.W. to her father immediately upon his release from prison. Finally, the foster parents had acknowledged that they had wanted to adopt S.D.W.; as the statute instructs that a KLG is only necessary "where adoption is neither feasible nor likely[,]" N.J.S.A. 3B:12A-1(c), there was no reason for DYFS to continue to encourage J.W. to meet DYFS' demands.

We defer to the judge's findings of fact recognizing that a "trial court's factual findings 'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting J.T., supra, 269 N.J. Super. at 188). We likewise conclude that his conclusions of law were sound and supported by the record.


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