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New Jersey Division of Youth and Family Services v. D.J.T

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 23, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
D.J.T., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF A.J., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-38-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 15, 2011

Before Judges Messano and Waugh.

Defendant D.J.T. (Dan)*fn1 appeals the order of the Family Part terminating his parental rights to A.J. (Amy), who was born on April 18, 2008. Amy's mother, A.A.J. (Adele), has not appealed the termination of her parental rights. We affirm.

I. We discern the following facts and procedural history from the record on appeal.

Amy is Adele's third child, but her first fathered by Dan. She has two older sons who have not been in her custody since June 2004, when the Division first became involved with Adele.

On January 14, 2008, the Division received a report that Adele was pregnant and was not receiving prenatal care. Shortly thereafter, a Division caseworker visited Adele, who had not had contact with the Division for over a year at that point. Adele informed the caseworker that she was pregnant and due in April 2008.

Adele gave birth to Amy on April 18, 2008, at Cooper Hospital in Camden. A social worker from the hospital contacted the caseworker on April 21 and expressed her concerns about Adele's behavior. She explained that Adele's speech was "pressured" and her thoughts rambling, and that she appeared "psychotic."*fn2 Although Adele was to be discharged that day, the social worker would "not allow [Adele] to leave with the baby." Amy was removed from the hospital on an emergent basis by the Division and placed in a foster home on the same day.

Adele informed the Division that Dan was Amy's father. Both Adele and Dan were served with a notice of emergency removal on April 22, 2008. On April 23, 2008, the Family Part judge awarded custody of Amy to the Division after a hearing attended by both parents. The judge also ordered weekly parenting time and parenting-capacity evaluations for both parents.

After the hearing, Adele began residing at a shelter and did not maintain regular contact with the Division. Adele contacted the caseworker on May 6, 2008, at which point the caseworker informed her that there would be another hearing on May 9, 2008. The caseworker was unable to reach Dan. Adele attended the May 9 hearing, but Dan did not. The judge ordered Adele and Dan to attend parenting-skills training and scheduled weekly supervised visitation with Amy.

On May 2, 2008, G.H. (Gita), who was the godmother of Adele's sons, contacted the Division requesting consideration as a potential placement resource for Amy.*fn3 Because Gita resided in Pennsylvania, the caseworker sent her an interstate packet so she could be considered as a placement option. The Division decided not to seek placement with Gita, who was not a "blood relative" of Amy and did not have an ongoing relationship with the child.*fn4

On May 19, 2008, the caseworker sent Dan a letter informing him that his paternity test was scheduled for June 6 and his parental fitness evaluation was scheduled for June 23, 2008. Dan completed the paternity test, but the results of the test were inconclusive. Dan did not attend the parental fitness evaluation.

By July 2008, the Division had lost contact with Dan, and his whereabouts were unknown for a significant period of time. Adele was living at his former home in Camden, but did not know where he was staying when contacted by the caseworker trying to schedule a second paternity test. The caseworker's attempt to notify Dan of the date of the second paternity test via certified mail was also unsuccessful. The Division initiated a search for Dan on August 29, 2008, but it was not successful.

In August 2008, Adele was again residing in a shelter. The Division determined that she would need mental health services. Adele refused medication. The Division sent her a referral for therapy in September 2008.

Adele, who was incarcerated for aggravated assault at the time, attended a compliance review hearing on October 14, 2008. Dan, who had not yet been located, did not attend. The judge entered an order continuing the Division's custody of Amy. Neither Adele nor Dan attended a February 6, 2009 compliance review hearing.

On March 9, 2009, the Division held a ten-month placement review, which Adele attended. Adele indicated her desire to be reunited with Amy. She denied that she needed mental health services, at which point the caseworker reviewed Adele's past referral for services. Adele stated that she did not have any relatives to serve as placement options for Amy. Dan, whose whereabouts were still unknown, did not attend.

Later in March 2009, the Division learned that Dan had been incarcerated in Philadelphia. After contacting the Philadelphia prison, the caseworker discovered that he had been released in early February 2009. Human Services Police attempted to contact him at two Pennsylvania addresses supplied by the prison, but were unsuccessful.

Adele attended a permanency hearing on March 17, 2009. Dan did not attend. The Division had concluded that the risks associated with Adele's "untreated severe mental health issues" and her "history of substance abuse," as well as the fact that she had not seen Amy since she was born, warranted termination of her parental rights. With respect to Dan, the Division relied on the fact that he "ha[d] been incarcerated for the majority of [Amy's] life and has never seen [Amy]." The Division concluded that "neither parent [was] available to parent [Amy]." The judge approved the Division's plan for termination of Dan and Adele's parental rights. The case goal for Amy was changed to adoption.

In early April 2009, the Division renewed its search for Dan through the Human Services Police. The caseworker provided the Human Services Police with a packet of information informing Dan of the permanency hearing and the Division's approved goal of adoption for Amy. The search was not successful.

On May 8, 2009, in connection with a status hearing attended by Adele, the Division filed its complaint seeking custody, together with an order to show cause (OTSC) and a request for the appointment of a law guardian for Amy. The judge scheduled the return date of the OTSC for June 26, 2009.

On June 13, 2009, Dan, who at the time was living in a shelter in Philadelphia, contacted the Division regarding the paternity testing. That was his first contact with the Division since April 2008. The Division responded on June 15, 2009, informing him that a referral had been sent to a lab that he should contact to schedule the test. The paternity test was completed on June 30, 2009, and confirmed that Dan was Amy's father.

Once Dan provided the caseworker with his address, he was served with the guardianship complaint and related papers on June 25, 2009. Dan attended the June 26, 2009 hearing and was ordered to attend a psychological and bonding evaluation scheduled for September 3, 2009. He was also allowed weekly supervised visits with Amy.

Dan attended a case management conference on August 25, 2009, at which the matter was scheduled for trial. The Division scheduled parenting time for Dan and Amy and facilitated transportation. Dan cancelled a scheduled visit with Amy in August 2009. At that time, he was still living at a homeless shelter in Pennsylvania. Dan attended a visit with Amy on September 2, 2009, and completed a psychological and bonding evaluation on September 3. V.F. (Victoria), Dan's aunt, and C.V. (Carrie), Dan's cousin, also attended the September 2 visit with Amy.*fn5 Victoria had contacted the Division in May 2009, after Dan told her about Amy. In October 2009, Victoria and Carrie completed a bonding evaluation with Amy. Victoria then attended a Division-supervised visit with Amy.

The Division subsequently began processing Victoria and Carrie's applications for Amy to attend in-home visitations at Victoria's residence. The Division assessed Victoria's home, where Carrie and Victoria's minor grandchild resided, to determine whether Dan could have his parenting time with Amy there, supervised by Victoria and Carrie.

Dan attended parenting time with Amy on October 19. Dan and Victoria attended visits with Amy on October 26, 2009, November 2 and 16, 2009.

Dan attended a case management hearing on November 19, 2009. Trial was scheduled for February 23 and 24, 2010. A pretrial conference was held on December 14, 2009, which Dan attended. At that time, Dan was ordered to attend parenting skills classes and domestic violence counseling, as had been recommended by James L. Loving, Psy.D. The Division provided Dan with information for domestic violence (DV) and parenting classes in Chester, Pennsylvania, where Dan was residing. Dan completed a parenting class on January 26, 2010.

Loving had performed Dan's psychological and bonding evaluation on September 3, 2009, but the Division did not receive his report until December 2009. In the evaluation, Loving noted that Dan had been residing in shelter housing with a coordinated work program in Philadelphia since May 2009. Dan expected to remain there until May 2010, at which point he planned to return to New Jersey and seek independent housing. Dan "acknowledged that he [would] not be in a position to regain custody in the near future, due to his current living arrangements and finances." Loving noted that Dan had been "essentially uninvolved with the Division for more than a year, following [Amy's] original removal," but as of the evaluation had "recently begun supervised visitation, having attended roughly four visits [as of September 2009]."

According to Loving's report, Dan reported a history of domestic violence during his relationship with Adele. He had been arrested on DV charges about three times. Loving noted that the records suggested "multiple incidents of physical harm." Additionally, Dan "described a lengthy and extensive history of criminal involvement," including drug possession. The records reviewed by Loving indicated seven separate DV-related arrests involving Adele. Loving concluded that Dan "must be seen as posing a somewhat high risk for future DV."

Loving administered psychological tests, from which he concluded that Dan was "free from any major mental health problems," but presented "with a number of behavioral and personality-related issues that could interfere with safe, effective parenting." Loving concluded that Dan's risks related to three main areas: (1) a pattern of unreliable, inconsistent behavior; (2) a "more specific risk for engaging in illicit activities that [could] lead to re-incarceration"; and (3) "his risk for exposing children to physical violence in the home."

With respect to unreliable behavior, Loving noted that Dan's "instability and irresponsibility . . . have contributed directly" to his custodial situation:

[D]uring the nearly two years since his daughter's birth, [Dan's] pattern of irresponsibility has prevented him from making more substantial progress toward obtaining custody. For example, he failed to involve himself with services during the early months of [Amy's] placement, then was arrested for roughly three months on very old warrants. Following his release in early 2009, an additional period of time passed before he made contact with the Division . . . .

In terms of physical violence, Loving concluded that Dan "will continue to pose a moderate risk for DV."

Loving opined that Dan "cannot be seen as a reunification option at this time. Based on purely practical issues (i.e., basic housing stability), he states that he will not be available to care for [Amy] until roughly May 2010." He noted that Dan "would then need to find, establish, and maintain stable housing for a period of time before professionals could feel assured that he will not find himself without housing and basic stability again." Loving explained that Dan "is not seeking reunification at this time, because he realizes that he needs to address his housing issues and basic financial stability . . . . [H]e is now most focused on having [Amy] placed with his aunt and cousin, until he is someday in a position to seek custody himself."

Loving recommended domestic violence treatment and parenting skills training, but noted that these goals were secondary to the more immediate priorities of obtaining employment and housing. Loving stated that "this lengthy process would prevent reunification from taking place for at least the next roughly one year," and that for those reasons and in light of Amy's bonding evaluations, he recommended a plan of adoption by Amy's foster parents.

In addition to a bonding evaluation with Dan, Loving also completed bonding evaluations of Amy with her foster parents, as well as with Victoria and Carrie. With respect to the foster parents, Loving concluded that Amy "enjoys positive, strong, secure attachments with both of her foster parents." As to Victoria, Carrie, and Dan, Loving concluded that Amy "shares positive but very limited attachments" to them. He noted that were Amy to lose contact with Dan or his relatives, "she would not be at risk for serious or enduring emotional harm," but that a significant risk of such harm existed were she to be separated from her foster parents. Although he concluded that "a basic foundation [was] in place for [Amy] to begin building stronger, healthier attachments to her father and paternal relatives," Loving nevertheless supported a plan of adoption by Amy's foster parents. He concluded that severing Amy's ties to her paternal relatives would not cause more harm than good.

Trial took place on three days in February and March 2010. Caseworker Lauren Keebler and Loving testified on behalf of the Division. The Law Guardian presented the testimony of Ronald S. Gruen, Ed.D., who conducted bonding evaluations with the foster parents and Amy's paternal relatives. Dan, Victoria, and Linda Sembler, the paralegal who conducted the Division searches for Dan, also testified on Dan's behalf.

Keebler, the current case manager for Amy's case, testified that she was assigned to the case in September 2009. She testified about the services the Division attempted to provide to Adele, but stated that Adele "has chosen not to visit with [Amy]" and had "not visited with her since she was born." With respect to Dan, the actions of the Division were summarized above.

Keebler testified there were no problems involving Dan, Victoria and Carrie's visits with Amy. After Victoria's home had been inspected by the Division, weekly five-hour visits with Amy were taking place there.

Loving testified consistent with his report. He described Dan as being at high risk for domestic violence, but that DV treatment could decrease that risk. He testified that there was a "weak attachment" between Dan and Amy due to the "very limited time that they've had together," noting that there was "a lengthy period of non-contact all together, followed by a small number of sessions." He noted a "positive healthy attachment" between Amy and her foster parents. He testified "to a reasonable degree of psychological certainty . . . that [Amy] would be at substantial risk of harm if she were to be removed" from her foster parents. As to Amy's bonding evaluation with Victoria and Carrie, he opined that a positive but weak attachment existed. He concluded that Amy "doesn't have the strong buffering attachment relationships [with Dan and her paternal relatives] that would ensure that she could overcome the loss of [her] foster parents."

Gruen testified concerning bonding evaluations he conducted with Amy and her foster parents, as well as Victoria and Carrie. He testified that Amy has "a strong and positive psychological bond" with her foster parents, and that she would suffer significant emotional harm if removed from them. He agreed with the conclusions and recommendations of Loving regarding that bond. As to the bonding evaluation with Victoria and Carrie, he concluded that Amy's relationship with them was at "an acquaintanceship relationship, not true psychological bonding."

Victoria testified that Dan first told her about Amy in April 2009. She contacted the Division in May, and met Amy for the first time in June. Her visits with Amy were consistent and she had never missed one. Victoria testified that she is willing to adopt Amy, who would live with Carrie, Victoria's twenty-three year old granddaughter, and Victoria's minor granddaughter, in the four bedroom house she owns. Victoria also admitted to having a criminal history.

Dan testified that he did not contact the Division between the April 23, 2008 removal hearing and November 2008, when he was incarcerated, because he lacked housing and was not stable. He admitted that he did not provide Victoria's name to the Division at the time of the removal hearing, and that he told her about Amy only after he as released from prison in February 2009. He acknowledged that the Division set up parenting skills classes for him in Pennsylvania where he was living.

Dan testified that he does not foresee himself being incarcerated again. At that time, he had been employed since February 2009. At the close of Dan's testimony, the Division's attorney requested a urine screen, which was later determined to be positive for marijuana.

The trial judge issued an oral decision on April 16, 2010. She observed that, because Dan had been "positive for marijuana on the last day of trial," he would require drug treatment, in addition to DV counseling, in order "to be caught up . . . before reunification efforts could really begin." She then concluded that the Division proved all four prongs of the best interests test by clear and convincing evidence. The order terminating parental rights was entered the same day. This appeal followed.

II. Dan raised the following issues on appeal:

POINT I THE TRIAL COURT ERRED IN FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

(A) CLEAR AND CONVINCING EVIDENCE DID NOT EXIST TO SUPPORT THE FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILD WAS AND CONTINUED TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

(B) CLEAR AND CONVINCING EVIDENCE DID NOT EXIST TO SUPPORT A FINDING THAT [DAN] IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HIS CHILD.

(C) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP [DAN] CORRECT THE CIRCUMSTANCES WHICH LED TO HIS CHILD'S PLACEMENT OUTSIDE THE HOME AND DYFS FAILED TO CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS AS REQUIRED BY N.J.S.A. 30:4C-15.1(a)(3).

(D) DYFS SHOULD NOT HAVE PREVAILED ON PRONG FOUR OF N.J.S.A. 30:4C-15.1A BECAUSE IT DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT CAUSE MORE HARM THAN GOOD.

The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). Those findings 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, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)); 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 judge's credibility determinations. Ibid. Such deference 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); see also M.M., supra, 189 N.J. at 293.

In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"

We have held that, "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 (citation omitted) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). 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)).

Nevertheless, 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). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.

Parents have a constitutionally-protected right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165-66 (2010); E.P., supra, 196 N.J. at 102; In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed in 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 Division to establish its case by clear and convincing evidence. Ibid.; In re Guardianship of J.N.H., 172 N.J. 440, 464 (2002); 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.").

The Supreme Court first articulated the best interests standard in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 602-11 (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).]

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." N.J. 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. (citation omitted) (internal quotation marks omitted).

Under the first prong of the best interests standard, the Division must prove by clear and convincing evidence that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "The harm shown under the first prong must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. "The potential return of a child to a parent may be so injurious that it would bar such an alternative." A.W., supra, 103 N.J. at 605. The absence of physical abuse or neglect is not conclusive; indeed, serious emotional and developmental injury should be regarded as injury to the child. Ibid. Moreover, trial courts must consider the potential psychological damage that may result from reunification with a parent. Ibid. "[T]he psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977); see also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights.").

Under the second prong of the best interests standard, a trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care, . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. 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." N.J.S.A. 30:4C-15.1(a)(2). The second prong focuses on parental unfitness and overlaps with the proofs supporting the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

Under the third prong of the best interests standard, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances" that necessitated removal and placement of the child in foster care. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services essential to achieving reunification, notice to the family of the child's progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "coordinated with other services" and must have a "realistic potential" to succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).

Under the last prong of the best interests standard, the question to be addressed is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. The overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. If a child can be returned to the parental home without endangering the child's health and safety, the parent's right to reunification takes precedence over the permanency plan. A.W., supra, 103 N.J. at 607-09. The mere fact of a bond with the foster parent does not alone justify the termination of parental rights. K.L.F., supra, 129 N.J. at 44-45; N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (App. Div. 2005).

In meeting the fourth prong, the State should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with the biological and foster parents. In re Guardianship of J.C., 129 N.J. 1, 19 (1992). "[T]ermination of parental rights likely will not do more harm than good" where the child has bonded with foster parents in a nurturing and safe home. E.P., supra, 196 N.J. at 108 (citations omitted). Yet, "the Division must show 'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).

III. We now turn to Dan's arguments on appeal.

Dan contends that the Division failed to prove each of the four prongs by clear and convincing evidence. To facilitate our review of the judgment on appeal, we will review each prong separately.

A. With respect to the requirement that the Division demonstrate that Amy's "safety, health or development has been or will continue to be endangered by the parental relationship," the trial judge reached the following conclusions:

The Courts have long recognized in this State . . . that the failure of a parent to provide any minimal parenting to a child . . . for an extended period of time is in and of itself a harm that endangers a child . . . it's an absence harm. It is a harm that endangers a child's health and development.

In this matter it was very foreseeable to [Dan] that [Adele] had no ability to care for this child and that this child very well might be and likely was his . . . .

In that 14 months, regardless of where [Dan] may have held [Amy] in his heart or his mind, she formed a new life with her foster parents. So, the lack of a relationship with this biological parent for those 14 months does in fact prove . . . by clear and convincing [evidence] the first prong of the required standard for the Division. There is no possibility that [Dan] thought [Adele] would be able to parent this child, he had to know that she had come into the care of strangers because he had not referred any family member . . . .

Dan argues that the trial court erred in finding the first prong of the best interests standard was met because it relied solely on his absence from the first fourteen month's of Amy's life.

Dan relies primarily on N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145 (2010), to support his claim that there was insufficient evidence to find the Division met the first prong by clear and convincing evidence. In that case, the father had a brief affair with the mother, who was married. As a result of the affair, a child was born in April 2006. The child was removed from the mother due to her substance abuse. Id. at 151-52. After the mother's husband discovered the child was not his, the child was placed in foster care in July 2006. Id. at 152-53.

The mother provided limited information about the father, and was only able to provide his address in October 2006. Nonetheless, the Division delayed in contacting the father even when the mother provided information. The mother did not inform the father of the possibility that he was the child's father until December 2006. Id. at 153-55. A paternity test confirmed parentage. Id. at 155.

The father then attended court hearings and provided a sister as a placement option, but did not want to adopt because his wife disapproved. Id. at 155-58. He later offered himself as a placement option in August 2007. Id. at 162. In terminating his parental rights, the trial judge stated the Division had met the first prong with clear and convincing evidence because "'[t]he child was in foster care from the age of approximately two months and [defendant] did not offer himself as a resource until the child was sixteen months of age.'" Id. at 162. We affirmed.

On appeal, the Supreme Court reversed, holding that "in order to justify a termination of parental rights, something more than the delay presented here is required, and the element of simple expediency cannot become the goal sought. That 'something more' is plainly absent here." Id. at 171. In reaching this conclusion, the Court noted that the father acted as soon as he discovered the possibility that he was the child's father, establishing his paternity in December 2006 and attending court proceedings beginning in January 2007. Ibid. The Court also noted that the father offered himself as a placement option two months prior to the guardianship trial. Ibid. The Court concluded that "it cannot be said that defendant's delay in offering himself to raise his own child could have caused the 'harm' necessary to satisfy" the first prong, as "defendant neither caused harm nor endangered his son's health or development." Id. at 171-72.

Here, Dan knew about the possibility of paternity from the date of Amy's birth, having testified that he visited her at the hospital when she was born. He also attended the April 23, 2008 emergent removal hearing. He completed a paternity test on June 6, 2008, with inconclusive results. Dan then failed to appear for the June 23, 2008 parental fitness evaluation, after which his whereabouts were unknown. The Division made efforts to locate him beginning in August 2008.

Dan testified that he did not contact the Division during the seven month period between the April 23 hearing and his incarceration because he lacked housing and was not stable. Similarly, when he was released from prison in February 2009, he did not contact the Division until March or April 2009.

The nature of Dan's delay is distinguishable from that of the father in I.S. Dan knew that he was likely Amy's father but voluntarily absented himself, thereby prolonging Amy's time in foster care and delaying all efforts at reunification. In addition, Dan failed to involve Victoria, a potential alternate caregiver, for essentially the same period of time. The facts of this case are also distinguishable from I.S. in that the father there had stable housing and was able to serve as a placement option for the child. Here, Dan has never been able to serve as a placement option for Amy, and was not able to do so at the time of the termination trial.

Dan's failure to care for or even ascertain who was caring for his child constitutes parental harm to Amy arising out of the parental relationship. See D.M.H., supra, 161 N.J. at 380-81 (holding a father's failure to appear or parent compounded the harm to his child where the child was born with heroine in his system and was placed in foster care within days of birth).

The "something more" in addition to delay required by the Court in I.S., supra, 202 N.J. at 171, is present in this case. Dan has been unable to obtain stable housing and to financially provide for Amy. He is also at risk for engaging in domestic violence. The fact that he tested positive for marijuana on the last day of trial supports the trial judge's conclusion that drug counseling would also be required. "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383 (citing A.W., supra, 103 N.J. at 616 n.14).

Consequently, we are satisfied that the record supports the trial judge's finding, by clear and convincing evidence, that the Division met its burden to prove the first prong of the best interests test.

B. With respect to the second prong, requiring proof 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," the judge reached the following conclusion:

[Dan] does not have an Axis-I diagnosis. He does not have an Axis-II diagnosis, a provisional or rule-out diagnosis there. The question is whether by virtue of the delay in reunification efforts at this point and what the Court can articulate and anticipate as the further delay if reunification were to start and the permanency plan were to be amended today, that whether with those two factors the delay in remedying the situation that was causing the child harm and stopping causing the child harm has occurred too late.

The test is whether the Court can determine that it's reasonably foreseeable that the parent will cease to inflict the harm upon the child. In this case the harm was again the delay and the absence -- total absence of care for the child for the first half of the child's life. It's really a little more than half. It is a prong that relates to parental unfitness and at this point it relates to whether the father's efforts somehow have overcome the initial abandonment of [Amy].

During that 14 months . . . [Amy] became very attached to [her foster parents] during this time period. She is described as simply beaming in their presence. They have the good fortune of being able to be working . . . in their home and have been since she was born. They have therefore been able in the 14 months particularly, and that's what's really important here, because it's not really a comparison of who . . . has the more resources, but in the first 14 months of her life were able to just parent her pretty much every waking hour of the day.

Dan argues that the only evidence of harm is the length of time he did not see his daughter, and that this delay is insufficient to meet the burden of clear and convincing evidence required for the second prong.

Contrary to Dan's contention, the trial court did not focus "solely on the period of non-contact." Instead, the trial judge relied heavily on the fact that Dan did not have a clear plan as to when he would be able to provide a home for Amy, if at all. She noted that the timeline for Amy to be permanently situated with Dan was indefinite, during which time she would continue to be attached to her foster parents, increasing the risk of serious and enduring harm in the event of separation from them. Thus, there was evidence to support the Division's burden to show Amy would suffer from "'a lack of stability and a permanent placement and from the disruption of [his or] her bond with foster parents.'" M.M., supra, 189 N.J. at 281 (quoting K.H.O., supra, 161 N.J. at 363).

At the time of trial, Dan was not a safe, stable placement option for Amy and was not likely to become one in the foreseeable future. Dan's inability to care for Amy at any time since her birth and the likelihood that such inability would continue indefinitely demonstrates parental unfitness and constitutes a continuing harm under the best interests standard. K.H.O., supra, 161 N.J. at 353-54.

The judge also pointed to Loving and Gruen's opinions that Amy would suffer harm from severing the relationship with her foster parents. This delay, caused by Dan's "failure to assume a responsible parental role in securing the placement" of Amy will harm her "to the extent that it results in the disruption or weakening of other bonds the child might form, such as a healthy relationship with her foster parents," a conclusion supported by the expert evaluations presented in this matter. K.H.O., supra, 161 N.J. at 354.

Consequently, we are satisfied that the record supports the trial judge's finding, by clear and convincing evidence, that the Division met its burden to prove the second prong of the best interests standard.

C. With respect to the third prong of the best interests standard, whether the Division made reasonable efforts to provide services to the parents and in considering alternatives to termination, the trial judge reached the following conclusions:

The Court first of all has recognized that efforts to reunite are not coming out of a cookie cutter, they have to relate to the family, the child, the circumstances that's noted In Re Adoption of Children by L.A.S., 134 N.J. 127, 1993; In the Matter of the Guardianship of D.M.H., 161 N.J. 365 . . . . . . . [I]n this matter the Division initially made the arrangements for a parenting capacity assessment immediately, which is usually a very comprehensive and useful assessment, that was going to be with Doctor Cahill, but it did not come off, and then the paternity test and the parenting time at the Division office, and that was just the beginning, but it never took off. Fourteen months later the Division arranged for visits immediately, and that's their job and you don't really get a star necessarily for doing what you should, but after that there was kind of a comprehensive process where the relatives were assessed not just for potential placement, and they are suitable for potential placement everything else being equal, just in terms of their ability to care for a child, but to also approve them to supervise visits so that visits could begin in a more home-like atmosphere, and they did, and the Division did that in a very comprehensive fashion and pretty early on, and those visits have been occurring at five hours I believe a week.

Defense raises whether the Division should have found dad sooner. Basically he did not find himself in a jail until six and a half months after the child was born, six months after the first Court proceeding, and he did not come back to Court and he knew that the case was being litigated. He wound up incarcerated in Pennsylvania. The Division takes three months to find him. The argument was, hey, he was right across the river. It kind of goes both ways. . . . Even assuming that the Division should have looked in maybe Delaware, New York and maybe even more in Pennsylvania jails because he had ties to Pennsylvania.

And, historically they did find him after three months and that counts for three or four of the 14 months that [Dan] was missing from this child's life, and once they found him, however, the two addresses he left weren't good, and ultimately he was found because he came forward through his aunt indirectly . . . . But, basically once [Amy] was back in [Dan's] view he did pick up and do what he needed to do.

I cannot find the Division's efforts were anything but reasonable in terms of looking for [Dan] and I don't find persuasive defense counsel's argument that they should have looked harder and he was kind of hiding in plain sight. The Division doesn't have access to any jail data bases, directly at least, other than New Jersey's and there's 49 other [s]tates, and I recognize there's again some history in Pennsylvania, but nobody was leading the Division directly to Pennsylvania, not [Dan] by any communication with the Division, and not [Adele], who really wasn't able to communicate real effectively at all about his whereabouts.

So, first, if there was a delay, it's three or four months, that's a fraction, a significant fraction, but it's much less than half, of the time [Dan] was not involved. And, secondly, he was in a much better position to find the Division, he knew where they were, than the Division to find him.

I also don't question the provision of services in Pennsylvania as being unduly delayed. First of all, he has now completed the parenting class, so it's done and he's not out of that program, he's in until next month in any event. And, secondly, this is a New Jersey child who was, you know, born here to a mother who resided here, was under the jurisdiction of this Court. [Dan] chose to go back to Pennsylvania where he had outstanding warrants apparently that he hadn't . . . taken care of and therefore was . . re-arrested and those risks were not risks the Division took or somebody else beyond his control, this is a New Jersey child with basically a temporarily Pennsylvania resident father.

So, I don't find the Division's efforts to not . . . perhaps somehow accelerate an interstate so that services could have been provided in Pennsylvania in a more accelerated way or . . . develop more expertise in Pennsylvania services to have been a problem on their part. I understand that [Dan's] efforts, because there's only 24 hours in a day, to get services probably required him to get the services in Pennsylvania, that was sensible. But, in short, I don't find the delay to be anything beyond what the life circumstances at the time required or the limitations they created, and certainly not reflective of a lack of reasonable effort on the part of the Division.

Dan contends that the Division did not make sufficient attempts to locate him in Pennsylvania or to provide him with services. Our review convinces us that the trial judge's conclusions to the contrary are fully supported by the record.

Dan also asserts that the Division did not adequately explore placement with family members and that the trial judge erred in failing to allow sufficient time for the exploration of those alternatives. We disagree.

The trial judge carefully considered allowing more time, but concluded that it would not be in Amy's best interests to do so because the chances of success were so questionable.

If in fact the Court were to deny the Division the relief it seeks today, find the Division had not proven the second prong by clear and convincing evidence, what happens next is I suppose one of three things, either the child stays with the [foster parents] for a continued period of time and the visits increase with some combination of the child's aunt and father, and then either the child moves in with and is placed temporarily with the aunt, or the aunt pursues KLG, and assuming the father is still involved, which is a predicate for all of this, then the child is either reunited with dad because he moves in with the aunt or he establishes his own home.

The Court is basically being asked to make a decision that a risk is mitigated of serious and enduring harm by the potential for one of these three plans to work out to mitigate the harm. Neither Doctor Loving or Doctor Gruen believed the Court could reasonably do that. In essence, since I cannot articulate what would happen next other than that the child will be cared for by in some form of home where she enjoys a great deal of affection, either [her] father or her aunt, I can't say because I don't have enough evidence to say that to do anything other than speculate or gamble what form of limbo the child will be in in terms of this transition and when it will end. And, during that transition this child will suffer and, you know, similar to what [Dan] said about his relationship with his aunt, "just because I'm not in her life doesn't mean I don't care and we don't have a relationship," I see a similar echo of that with respect to the description . . . of how [Amy] won't struggle with the transition.

Frankly, at least with respect to her past relationships and the stability of her current family life, I can find that the father and the aunt are viewing [Amy] as kind of an empty vessel and that that path is easily skipped over, "she's a baby, how unhappy could she be," "we'll do whatever it takes." Well, for [Dan], doing whatever it takes is not necessarily the kind of bet that this Court can make on behalf of this child when doing whatever it takes sometimes means holding somebody in my heart for 14 months but not having any relationship with them.

This Court finds that that's a gamble that I just cannot take in this case and that the Division has demonstrated by clear and convincing evidence cannot be taken because I cannot find that the risk of serious and enduring harm will be mitigated. I recognize Doctor Loving is calling this a risk, he's not calling it serious and enduring emotional harm. The reason he's calling it a risk is because of dad's potential. So, the question becomes a legal one, which is when that potential was realized and whether it was beginning to be realized too late for this child.

In any of the scenarios that I outlined the child will continue to be attached to, even growing the risk of serious and enduring harm, to the [foster parents], because whichever way I look at this she continues to see the [foster parents] or live with them for some period of time, three months, six months, nobody could articulate that, including me. We just learned at the time of trial that [Dan] is wanting to move back to New Jersey and literally live with his aunt.

In the meanwhile, in terms of the risk of instability, in and of itself, certainly not the most critical of situations, but everything counts here and despite indicating . . . by [Dan] that he ain't used any illegal substances since his twenties, he was positive for marijuana on the last day of trial. He would need drug treatment, besides the domestic violence counseling.

So, that's two things that would have to be caught up on before reunification efforts could really begin in complete and total earnest.

Our review again convinces us that the judge's conclusions are fully supported by the record.

Dan also argues that the trial judge did not adequately consider the alternative option of Kinship Legal Guardianship (KLG) with Victoria. The Kinship Legal Guardian Act, N.J.S.A. 3B:12A-1 to -7, "provides an alternative to termination of parental rights and subsequent adoption." N.J. Div. of Youth & Family Servs. v. D.H., 398 N.J. Super. 333, 339 (App. Div. 2008). A kinship legal guardian is defined as "a caregiver*fn6 who is willing to assume care of a child due to parental incapacity, with the intent to raise the child to adulthood." N.J.S.A. 3B:12A-2. The caregiver typically has a "'biological, legal, extended or committed emotional or psychological relationship with a child and who [is] willing to assume care of the child due to parental incapacity or inability, with the intent to raise the child to adulthood.'" D.H., supra, 398 N.J. Super. at 340 (quoting N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 508 (2004)).

"If adoption is readily available, however, KLG cannot be used to defend against termination of parental rights." Id. at 341 (citing P.P., supra, 180 N.J. at 513.). Here, because Amy's foster parents wish to adopt her, adoption is readily available. Further, as noted above, the trial judge determined that KLG was not in Amy's best interests, which is also required for a potential caregiver to be appointed KLG. N.J.S.A. 3B:12A-6(d)(4) (stating the court shall appoint a KLG if based upon clear and convincing evidence awarding KLG is in the child's best interests). That determination was based on the opinions of Loving and Gruen, who determined that Amy has a stronger attachment to her foster parents and would suffer significant emotional harm if separated from them.

Consequently, we are satisfied that the record supports the trial judge's finding, by clear and convincing evidence, that the Division met its burden to prove the third prong of the best interests test.

D. The final prong requires the Family Part judge to determine whether "[t]ermination of parental rights will not do more harm than good." With respect to that issue, the trial judge concluded:

[Amy's] separation from her birth family, if permanent, will not do her more harm than good. Of course there's an intrinsic harm, . .. whenever a parent's rights are terminat[ed], and in this case added to it is another group of folks who really love this child and feel a shared ancestral history with her, . . . but that does not rise to the level of doing more harm than good either. And, therefore the Division has proven . . . prong four by clear and convincing evidence.

Dan argues that the harm of terminating his rights or failing to appoint Victoria as Amy's KLG are more pronounced because Amy has developed a relationship with both him and his relatives.

The Supreme Court has found that "[t]he risk to children stemming from the deprivation of the custody of their natural parent is one that inheres in the termination of parental rights and is based on the paramount need the children have for permanent and defined parent-child relationships." J.C., supra, 129 N.J. at 26. Therefore, the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties. The question to be addressed under that prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents.

[K.H.O., supra, 161 N.J. at 355.]

Consequently, the trial judge must examine the child's relationship with both her biological and foster parents. Ibid. The comparison of these relationships to determine whether the child will suffer a greater harm from termination of her natural parents' rights "'requires expert inquiry specifically directed to the strength of each relationship.'" Ibid. (quoting J.C., supra, 129 N.J. at 25).

Although the trial judge's findings on the fourth prong were sparse, "the underlying evidence and the court's findings of fact may be reviewed to ascertain whether the evidence fulfills the best interests standard of N.J.S.A. 30:4C-15.1(a)." D.M.H., supra, 161 N.J. at 378.

In weighing the respective relationships with her foster parents and Dan and his family, the judge noted that Amy has become very attached to her foster parents during the fourteen months she lived with them, a finding supported by Loving's and Gruen's uncontradicted testimony. She also noted that Amy would suffer during the transition from her foster parents to her paternal relatives, and that based on their testimony, neither Dan nor Victoria appreciated the emotional harm Amy would likely undergo during that transition. The judge concluded that she could not find "that the risk of serious and enduring harm will be mitigated," and that in any of the three scenarios she outlined, Amy would "continue to be attached to, ever growing the risk of serious and enduring harm, to [her foster parents]."

The judge's conclusion that Amy would suffer harm if separated from her foster parents was supported by clear and convincing evidence. Amy had resided with her foster parents for fourteen months before Dan appeared, and for nearly two years by the time trial concluded. Although it is "well-established that the period of time a child has spent in foster care is not determinative of whether parental rights to that child should be terminated," I.S., supra, 202 N.J. at 169-70, it is also true that "[t]he potential return of a child to a parent may be so injurious that it would bar such an alternative." A.W., supra, 103 N.J. at 605.

Loving's report and testimony concerning the psychological and bonding evaluation of Dan support the conclusion that the harm to Amy would be greater if her relationship with her foster parents was severed than would be the case if Dan's parental rights were terminated. Loving and Gruen's bonding evaluations of Victoria, Carrie and the foster parents support that conclusion. As to the harm Amy would suffer if separated from Dan and his relatives, the trial judge found that it "will not do her more harm than good," a conclusion supported by the aforementioned expert testimony and evaluations. Specifically, Loving concluded that were Amy to lose contact with Dan or his relatives, "she would not be at risk for serious or enduring emotional harm," but that a significant risk of such harm existed were she to be separated from her foster parents.

Dan also argues that by the time of trial, he was consistently attending visits with Amy, and would form a stronger bond with Amy as these visits continued. He argues that because he and his relatives had positive, albeit weak, bonds with Amy, these bonds would strengthen and they would be able to mitigate any harm to Amy occurring as a result of separation from her foster parents.

However, "[k]eeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001) (citing In re Adoption of a Child by P.S., 315 N.J. Super. 91, 121 (App. Div. 1998)), certif. denied, 171 N.J. 44 (2002). As noted by the trial judge, Dan would not have been able to take custody of Amy in the foreseeable future were his rights not terminated, and Dan did not present a permanent placement plan for Amy at the time of trial. Consequently, we conclude that the Division satisfied its burden of proof as to the fourth prong.

We are satisfied that the trial judge's findings of fact and conclusions of law are fully supported by clear and convincing evidence found in the record and the applicable law. We see no indication that the judge's findings "went so wide of the mark that a mistake must have been made" so as to deny the deference ordinarily paid to them. M.M., supra, 189 N.J. at 279 (citation omitted) (internal quotation marks omitted).

Affirmed.


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