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

March 23, 2011


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

Per curiam.



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 ...

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