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New Jersey Division of Youth and Family Services v. J.B

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 5, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
J.B., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF E.B. AND A.B., MINORS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FG-06-13-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 13, 2011

Before Judges Reisner, Simonelli and Hayden.

Defendant J.B. appeals from the Family Part judgment of June 30, 2010, terminating his parental rights to his children E.B. and A.B. and awarding guardianship to the New Jersey Division of Youth and Family Services (the Division). After reviewing the record presented on appeal, we affirm.

I.

The record shows that defendant J.B. is the biological father of E.B. and A.B., the two minor children at issue in this case. He is married to D.B., the children's biological mother, who was a defendant in the guardianship proceeding but has not appealed the termination of her parental rights. E.B. was born on September 6, 2007 and his sister A.B. was born on February 15, 2009.

On July 9, 2009, the Division filed a guardianship complaint seeking to terminate the parental rights of J.B. and D.B. to their son, E.B. On January 8, 2010, the Division amended its complaint to include A.B., the couple's daughter. On May 19 and 27, 2010, a trial was held in which the Division's caseworker, E.B.'s resource mother, and a clinical psychologist testified. J.B and his girlfriend C.K. testified on his behalf. On June 10, 2010, Judge Julio Mendez issued a comprehensive fifty-two page written opinion terminating the parental rights of D.B. and defendant to E.B. and A.B.

At the time of trial, D.B. had twelve biological children, all of whom have been removed by the Division and placed with relatives. J.B. is the father of five of those children, although only the youngest two are at issue in this case. He voluntarily surrendered his parental rights to two of his older children and his parental rights to his third child were involuntarily terminated.

D.B.'s first interaction with the Division occurred in 1993, when she threatened to harm her newborn child. From that time on, the Division received numerous referrals regarding the family, including mental health issues, parenting concerns, and hygiene problems. Many of these referrals occurred during the time J.B. also resided in the home. Over the years D.B. has been diagnosed with major depression and borderline personality disorder, and possibly with bipolar disorder and post-traumatic stress disorder.

When E.B. was born on September 6, 2007, the Division decided removal of the child was necessary because of his parents' prior substantiations for abuse and neglect of their other children. On September 11, 2007, the Division filed a complaint for custody of E.B., which was granted. On October 29, 2007, the court decided to return E.B. to J.B.'s care under very stringent conditions, which J.B. agreed to follow. The judge ordered J.B. to have weekly contact with the Division, to obtain stable housing and to not allow D.B. to have contact with the child.

During the next several months, J.B. frequently did not follow the judge's mandate of maintaining weekly contact with the Division. Defendant moved frequently during this period and failed to establish stable housing or obtain employment. Defendant told the Division that he was employed but, when they sought to verify that information, it proved false. Caseworkers making unannounced visits found D.B. together with J.B. and the child but they adamantly denied living together.

From May 12 to June 3, 2008, the Division was unable to contact defendant or visit with E.B. On June 5, 2008, the Division filed for, and was granted, custody of E.B. due to J.B.'s continued non-compliance with court orders.

Subsequently D.B. revealed to the Division that she had been living with defendant during much of the time that he had custody of E.B. D.B. became pregnant with A.B. during this time. J.B. also admitted to allowing D.B. unfettered access to the child, despite the judge's orders.

On June 30, 2008, the Division placed E.B. with relatives, A.C. and his wife J.C., who was D.B.'s cousin. This resource family had previously adopted E.B.'s sister and two of E.B.'s half-sisters. When A.B. was born on February 15, 2009, the Division also sought and obtained an order for custody of her from the court. The Division placed the child with S.D., a maternal cousin. Both resource parents have committed to adopting the child in their care.

After E.B. was removed in June 2008, defendant did not participate in the litigation or the reunification process until January 2009. Defendant again stopped participating in the litigation and reunification from June to December 2009. Additionally, J.B. failed to take part in visitation with E.B. for much of that time. Significantly, from the time when E.B. was removed on June 5, 2008 to March 18, 2009, only two visits occurred, and between July 29, 2009 and January 11, 2010, there were no visits. Visits with A.B. were also sporadic, even after J.B. became re-engaged in the process.

At the guardianship trial, Dr. James Loving, a clinical psychologist, testified as an expert witness concerning evaluations he had performed for the Division. On March 2, 2010, Dr. Loving evaluated defendant. He administered standard psychological tests, which were invalidated by J.B.'s defensive responses. Despite having no usable test data, Dr. Loving found that defendant did not appear to have any psychological barriers to effective parenting. Nevertheless, he found that defendant had made numerous decisions that prevented him from being available as a parent to his children. The doctor noted that, based upon his past behavior, defendant is likely to absent himself from his children's lives for prolonged periods of time.

According to the doctor, defendant explained that the first extended absence from his children's lives occurred because he wanted to completely extricate himself from his marriage to D.B. and he felt that he needed to cease contact with his son in order to do so. The second extended absence occurred because J.B. had outstanding warrants for his arrest and he feared incarceration if he participated with the Division or the court. The doctor noted that the outcome of J.B.'s choices was that he was not involved with his children as a parent for a prolonged period.

Further, Dr. Loving found significant certain aspects of defendant's tumultuous relationship with D.B. The doctor noted that even though defendant was aware of D.B.'s mental condition, he did not take their children with him during the several times that he had separated from her during the marriage. The doctor also expressed concern that, despite knowing her mental health issues, defendant allowed D.B. to have unsupervised contact with E.B. while in defendant's sole custody. The doctor opined that this poor judgment cast doubt on defendant's ability to make future decisions in the interests of his children.

In addition, Dr. Loving conducted parent-child bonding evaluations with defendant and E.B and A.B as well as with the children and their respective resource mothers. The doctor concluded that E.B. shared a positive, but weak, attachment to J.B., but, as the attachment was not strong or secure, E.B. would not be harmed if his relationship with defendant were terminated. On the other hand, Dr. Loving found that E.B. has a secure attachment to J.C. and would be at an increased risk of serious emotional harm if the relationship were terminated. Also, Dr. Loving found that J.C. would have the ability to help E.B. with any trauma that he would experience as a result of termination of his relationship with J.B.

When Dr. Loving conducted a bonding evaluation of defendant and A.B., he found that A.B. did not have any attachment to defendant. The doctor concluded that A.B. would not suffer any trauma from termination of her relationship with defendant. At the bonding evaluation between A.B. and S.D., her resource mother, the doctor concluded that A.B. had a secure attachment with S.D. and would be at risk of serious emotional trauma if her relationship with her resource mother terminated. Dr. Loving thought that S.D. would be able to help A.B. through any trauma from the termination of defendant's parental rights.

Dr. Loving concluded that it would be in the children's best interests to be adopted by their respective resource families.

At the trial C.K. testified that in August 2008, she met J.B. and they immediately began dating and living together. C.K. and defendant reside with her three children from previous relationships. C.K. testified that J.B. had matured a lot during the time of their relationship, and he had been a good father to her children. She further testified that she was committed to raising J.B.'s children if the court returned them to him.

Defendant testified that at the start of the litigation and during his absences from it, he was more committed to his relationship with D.B. than his relationship with his children. Defendant stated that by the time of the trial he had freed himself from the unhealthy relationship with D.B., and now he was committed to raising his children. J.B. also felt that he was getting closer to them through visitation. At the time of trial, J.B. was planning to divorce D.B. and marry C.K.

In his lengthy opinion, Judge Mendez carefully reviewed the evidence and found that the Division had proven, by clear and convincing evidence, all four prongs of the best interests of the child test required under N.J.S.A. 30:4C-15.1a for termination of parental rights.

The court found Dr. Loving's testimony unbiased and credible. However, he was "not impressed with J.B. He talks a good game, but when it comes to action, he has failed his children." Noting that his new commitment to the children was "too little, too late," the judge found that J.B.'s periods of absence from his children's lives despite consistent access to services, visitation, and family members who were caregivers for the children, as well as his history of extremely poor decision-making and complete lack of a plan for how to support two more children, rendered him unable to parent in the children's best interests.

II.

On appeal, J.B. argues that his parental rights were improperly terminated because the Division failed to prove, by clear and convincing evidence, prongs one, two and four of the best interests of the child test specified in N.J.S.A. 30:4C-15.1a. Finding sufficient evidence in the record to support the trial judge's decision, we disagree.

We note first the legal principles that govern our consideration of these arguments. "'[P]arents have a constitutionally-protected, fundamental liberty interest in raising their biological children . . . .'" N.J. Div. of Youth and Family Servs. v. I.S., 202 N.J. 145, 166 (2010) (quoting In re Guardianship of J.C., 129 N.J. 1, 9 (1992)). In view of that fundamental interest, the law "clearly favors keeping children with their natural parents and resolving care and custody problems within the family." Id. at 165 (citation omitted).

However, parental rights are not absolute; the State also has a "parens patriae responsibility to protect the welfare of children" in situations where the child's parents are unfit or the child has been neglected or harmed. Id. at 166. Hence, as our Supreme Court has observed, "[T]ermination of parental rights presents the legal system with an almost insoluble dilemma." N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 599 (1986). The court must balance "the inviolability of the family unit," with the state's constitutional power to intervene when the physical or mental health of children is jeopardized. Ibid.

When deciding an application for termination of parental rights under N.J.S.A. 30:4C-15.1a, a trial court must apply the "best interests of the child" standard. The four statutory prongs that the Division must prove by clear and convincing evidence under this standard are:

(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-15.1a.]

These factors are not discrete or separate elements, but should be considered together to provide a picture of what is in the best interests of the child. I.S., supra, 202 N.J. at 167 (citations omitted); N.J. Div. of Youth and Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).

The stakes in guardianship cases are so high, the rights to be protected are so great, and the consequences of error are so irreversible that intense scrutiny is mandated. N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004). In light of a parent's constitutional right to raise his or her own child, the burden of proof required to terminate that right must also be high. Thus, the Division must prove each of the four prongs of the best interests of the child test by clear and convincing evidence. I.S., supra, 202 N.J. at 168 (citing A.W., supra, 103 N.J. at 612). All doubts in these cases must be resolved in favor of maintaining parental rights. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). We must uphold the trial court's factual findings so long as they are supported by "'adequate, substantial and credible evidence in the record.'" N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 279 (2007)(citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (1993)).

III

Guided by these principles, we are satisfied that there is clear and convincing evidence in the record proving all four prongs of the best interests of the child standard. We affirm substantially for the reasons stated by Judge Mendez in his thoughtful and thorough opinion.

The first prong of the "best interests test" under N.J.S.A. 30:4C-15.1a requires us to determine whether "the child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J. Div. of Youth and Family Servs. v. M.M., supra, 189 N.J. at 281. The harm must threaten the child's health and have a "continuing deleterious" effect on the child. Ibid. Nevertheless, courts do not need to wait until a child is irreparably harmed to terminate parental rights. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

Judge Mendez found that the Division proved this prong by clear and convincing evidence because of defendant's poor judgment and sporadic involvement in his children's lives. He noted that defendant was given the chance to parent E.B., and he failed to follow court orders and stay involved in the litigation. The judge also noted defendant's two extended absences from the reunification process. Judge Mendez stated, "[J.B.'s] relationship with both of these children takes place only when it is convenient for him. The result is that the children both see him as little more than a friendly extended relative." The judge concluded that the lack of commitment and instability in defendant's relationships with his children renders the parental relationship harmful to the children.

We reject defendant's argument that the Division did not prove prong one because it presented no evidence that he had ever harmed his children. Under this prong the Division must only show that "the child's 'safety, health, or development has been or will continue to be endangered by the parental relationship.'" N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001) (quoting N.J.S.A. 30:4C-15.1(a)(1)), certif. denied, 171 N.J. 44 (2002). First, defendant's argument ignores the judge's finding that by allowing D.B. access to E.B. in violation of the court orders, defendant continuously endangered the child. Second, defendant's decisions to absent himself from his children for prolonged periods, leaving them to the care of others, created distinct and serious harm to the children. It has long been recognized that a parent's failure to provide "solicitude, nurture and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re the Guardianship of D.M.H., supra, 161 N.J. at 379 (citing K.H.O., supra, 161 N.J. at 352-54).

The second prong relates to parental unfitness and may be established by demonstrating that (1) "the parent is 'unwilling or unable to eliminate the harm'"; (2) "the parent has failed to provide a 'safe and stable home'"; or (3) a "'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (citation omitted). This prong requires the court to decide "whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care." I.S., supra, 202 N.J. at 167 (citing A.W., supra, 103 N.J. at 607). Thus, the judge must determine whether the parent has cured the initial harm that led to removal and whether the parent is able to maintain a harm-free relationship with the child. K.H.O., supra, 161 N.J. at 348.

Addressing the second prong, the judge found that defendant was "clearly unwilling to eliminate the harm facing the children." Judge Mendez noted that when defendant had custody of E.B., he secretly allowed D.B. to care for the child without supervision, knowing that D.B.'s mental condition was the reason they lost custody of their other children. The court also found that defendant had not taken significant steps to provide a stable home for his children. The court was also very troubled by defendant's pattern of lying to the Division. The court concluded that there was "absolutely no indication that this court can see that would tend to show that J.B. will not again abandon his children the next time he suffers some personal instability, such as the loss of a relationship or further legal troubles."

In addition, the judge noted that the children had strongly bonded with their resource families while defendant was absent from their lives. Removing them from those homes now would also cause them harm, which would not have occurred if defendant had remained in his children's lives throughout the reunification process.

The third prong of the best interests standard for termination is whether "[t]he 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 [whether] the court has considered alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1a(3). Defendant does not contest that the Division proved this prong by clear and convincing evidence. Judge Mendez found that the Division "made great efforts to provide alternatives to termination of parental rights, and has provided a multitude of services to both parents over many years."

The fourth prong of the best interests standard requires the court to find that termination of parental rights will not do more harm to the child than good. N.J.S.A. 30:4C-15.1a(4). The question under this 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 resource parents." K.H.O., supra, 161 N.J. at 355. This determination requires an expert to evaluate the comparative strengths of the relationship between the child and the biological parent, and that of the child and the resource parent. Ibid. (citing In re Guardianship of J.C., supra, 129 N.J. at 25).

In this case, the judge considered bonding evaluations conducted by Dr. Loving with each of the children and their respective resource mothers, and each of the children with J.B. We reject defendant's claim that a proper comparison cannot be made pursuant to J.C. as E.B.'s second resource parent was not also evaluated. We deem it sufficient for the necessary comparison where at least one resource parent is evaluated.

In Dr. Loving's uncontradicted opinion, both children were securely attached to their resource mothers, and defendant was not more than a friendly acquaintance to them. The doctor concluded that there would be no risk of harm to E.B. and A.B. if they remained with their resource parent, but that removing them from their respective resource parents would result in an increased risk of serious harm. Furthermore, the children's placement with maternal cousins will allow them continued contact with each other and several other siblings, who are placed with maternal relatives. See In the Matter of D.C. and D.C., 203 N.J. 545, 561 (2010), (maintaining sibling bonds is crucial to children in chaotic circumstances). Based upon the lack of a bond with J.B. and the strong bond each child had with their resource parent, which would result in serious trauma if broken, Judge Mendez held that termination of parental rights would not do more harm than good. As with the other prongs, the judge's determination that termination will not do more harm than good is amply supported by the record.

Affirmed.

20111005

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