November 9, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF D.D.G., J.D.G. AND J.D.G., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-88-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2011
Before Judges Fuentes, Graves and Koblitz.
W.G. is the father of three children: D.D.G.,*fn1 (fictitiously, David), born in September 2005; J.D.G., (fictitiously, Janet), born in August 2006; and J.D.G., (fictitiously, John), born in October 2007. In May 2009, S.D., the children's mother, surrendered her parental rights to the three children in favor of the foster parents. W.G. was incarcerated from August 9, 2007 until his parole on February 9, 2011. He appeals the January 28, 2010 order terminating his parental rights to the children. He also appeals the December 6, 2010 order rejecting his ineffective assistance of counsel claim.*fn2
We affirm both orders substantially for the reasons stated by Judge Frederic S. Kessler in his two oral opinions. The findings are "based on clear and convincing evidence supported by the record," and the legal conclusions are sound. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004).
On the day after Janet's birth, the Division of Youth and Family Services (the Division) first became involved with this family after the hospital reported that S.D. tested positive for marijuana. The Division offered services to the family, including drug testing, substance abuse treatment and psychological evaluations.
Mark Singer, Psy.D., a psychologist retained by the Division, conducted a psychological evaluation of W.G. During this evaluation, W.G. admitted he was aware of S.D.'s substance abuse problem and his failure to address this problem with her. Dr. Singer concluded that W.G. was secretive, defensive and had difficulty responding to the needs of others. He also had an unrealistically positive view of his own level of functioning. Dr. Singer recommended that W.G. maintain stable housing and employment and also engage in individual therapy and parenting skills classes.
Based upon the parents' non-compliance with services, their failure to obtain stable housing, and the mother's continued substance abuse, the Family Court ordered the removal of David and Janet, who were subsequently placed together in the foster home in which they currently reside. Their foster mother has indicated a desire to adopt the two children.
The court ordered W.G. to obtain stable housing, provide proof of employment, and comply with services, as well as attend biweekly supervised visitation with his children. According to a Division caseworker, W.G. had positive interactions with his children during these visits.
Beginning in the spring of 2007, W.G. regularly attended his counseling sessions and completed seven of eleven parenting skills classes. He worked at two jobs, and his drug screens were consistently negative. S.D., however, continued to be noncompliant and repeatedly tested positive for marijuana. As of June 2007, the Division's plan was to reunify the children with W.G. at his sister's house, provided that S.D. moved out.
On August 9, 2007, W.G. was arrested and incarcerated on multiple drug charges.*fn3 Nearly one year later, he pled guilty to possession, manufacture and distribution of cocaine and heroin and was sentenced to seven years in prison, with no possibility of parole until February 2011. Upon his incarceration in August 2007, W.G.'s visitation with his children ceased.
In October 2007, S.D. gave birth to a third child, John. Two days after his birth, the Division filed for and was granted custody of the newborn. The Division placed John with a foster mother apart from his siblings, where he currently remains. The two foster mothers have facilitated sibling visits. John's foster mother wishes to adopt him.
During the fall of 2007, S.D. proposed placing the children with her mother. In December 2007, the Division actively investigated this possible placement. The Division ultimately ruled out the maternal grandmother as a placement alternative for the children based upon a prior finding of neglect. W.G. did not provide the Division with the names of any relatives who might be able to care for the children.
On July 14, 2008, Judge Kessler ordered that W.G. receive supervised visitation if the halfway house at which he was being held, Logan Hall, had a visitation program. On July 28, 2008, W.G. visited with his children for the first time in approximately one year. In August 2008, the judge ordered that W.G. receive supervised visitation on a biweekly basis. The Division workers who supervised these visits, which took place in a private room, reported that W.G.'s behavior with his children was entirely appropriate.
In August 2008, W.G. for the first time proposed his aunt, A.G., as a possible relative placement. However, A.G. never returned the Division's calls. In September 2008, W.G. advised the Division that another paternal aunt, G.H., was interested in caring for the children. Because G.H., who was in her early sixties, resided in Virginia, the Division initiated an interstate placement evaluation.*fn4 During the course of this evaluation, and without any notice to the Division, G.H. moved to North Carolina.
In October 2008, W.G. was transferred to the Central Registry and Assignment Facility ("CRAF") in Trenton, at which time his visitation with his children ceased. Division caseworker Attiyya Point-du-Jour, who had taken over the case in August 2008, confirmed that CRAF did not allow visitation. In March 2009, W.G. was transferred to East Jersey State Prison in Rahway. Visitation was not permitted because visits were conducted among the general population, rather than in private rooms.*fn5
In January 2009, Point-du-Jour learned for the first time of G.H.'s move to North Carolina. Due to the move to another state, a new interstate placement evaluation was required. G.H. indicated she still wanted to adopt the children, but was unsure if she was physically able to handle the job given their young ages.
Ultimately, G.H. told Point-du-Jour that she would think about the proposition of adoption, and Point-du-Jour requested that she get back to her in a week. When G.H. did not call back, Point-du-Jour made several attempts to contact her. The two did not speak, however, until late February or early March 2009, at which point G.H. confirmed that she was interested in caring for the children. Point-du-Jour advised G.H. to obtain employment, as she needed a source of income to be approved as an adoptive parent.
At trial, Point-du-Jour testified that although G.H. was actively working with the Division, her interstate evaluation was still incomplete. Point-du-Jour stated the Division had concerns about placing the children with G.H. due to her age, the fact that the children did not know her, and her failure to request visitation with them. According to Point-du-Jour, although there was no age limit on family resources, the Division preferred that G.H. have a contingency plan in the event she became unable to care for the children.
In May 2009, the court accepted S.D.'s identified surrender of her parental rights to the three children in favor of their current caretakers.*fn6 The case proceeded to trial against W.G. on May 20, 2009.
Jason Fleming, a psychologist retained by the Division, conducted bonding evaluations of the three children and their caretakers and also a psychological evaluation of W.G. Dr. Fleming testified that during an initial conversation, W.G. demonstrated some insight into the problems facing him and his children. He was concerned about their well-being and causing further disruption in their lives, and also realized that, even after he was paroled, it would take some time for him to get "back on his feet." W.G. admitted that due to his periods of incarceration, he had worked only sporadically and previously had difficulty maintaining stable housing.
According to Dr. Fleming, subsequent psychological testing revealed that W.G. was attempting to present himself in an overly virtuous fashion. W.G. did, however, acknowledge problems with anti-social behavior, which affected his ability to maintain a law-abiding life and put his children's needs first. Nevertheless, he appeared motivated to make positive changes in his life, and there was no indication that he would abuse his children.
Dr. Fleming concluded that despite W.G.'s desire to parent his children, his incarceration precluded any chance to provide them with a stable home. Even upon his release from prison, it was likely W.G. would need some time to adjust back into the community and achieve stability.
During the bonding evaluation of David, Janet and their foster mother, Dr. Fleming observed that they appeared to have a positive, secure and healthy relationship. The foster mother set proper limits, and the children were attentive to her. They called her "Mommy," and it was apparent they had come to rely upon her as their primary parent and primary attachment figure.
John and his foster mother enjoyed a similarly positive, bonded relationship. The foster mother was the only parent John had ever known and was clearly his psychological parent. John had some speech delays, and his foster mother was patient and encouraging. It was clear to Dr. Fleming that she had spent considerable time working with John, and he was very responsive to her.
In July 2009, while the trial was on-going, the Division arranged for Dr. Fleming to conduct a bonding evaluation of W.G. and his children at East Jersey State Prison. W.G. was afforded three hour-long visits with his children prior to the evaluation. At the time of the evaluation, Dr. Fleming was aware that W.G. had only three visits with them after a significant time apart. He observed them for ninety minutes and noted that the children greeted W.G. warmly and that W.G. was excited to spend time with them. As there were no toys or books in the room, the four engaged in physical play and generally enjoyed their time together. W.G. was very attentive and tried to divide his attention evenly among the three children.
Dr. Fleming concluded that there was a positive attachment "style" between W.G. and his two older children. John was not as familiar with him, but their interaction was positive as well. Nonetheless, Dr. Fleming did not believe that any of the children viewed W.G. as a psychological parent. Dr. Fleming concluded that the children would not suffer any significant harm if their relationship with W.G. was terminated.
Based upon the foregoing evaluations, Dr. Fleming opined that it would be in the children's best interests to remain with their foster parents. He pointed out that W.G. had been incarcerated for John's entire life and that his time with the two older children was brief. Dr. Fleming was confident that the foster mothers would be able to mitigate any harm that the loss of W.G. may cause to the children.
Moreover, Dr. Fleming was persuaded that if the children's relationships with their foster mothers were severed, the resultant harm would be severe. If the children lost the primary figures in their lives at this point in their development, it would affect their ability to trust others and form relationships in the future. They could also develop behavior problems. W.G. would be unable to mitigate this loss for the children.
Dr. Fleming rejected the idea of delaying permanency until W.G. was released from prison. He noted that W.G. would not be eligible for parole for more than a year and that, even after his release, it would take some time for him to secure a job and housing, and then more time (nine months to a year) for him to demonstrate stability. This would leave the children in a "limbo status," which could easily last two to three years or more and cause them great emotional harm, as the children's bonds with their foster mothers would further solidify during this time.
Additionally, while he remained incarcerated, W.G. would not be able to interact with his children sufficiently to increase his knowledge of them and enhance his parenting skills. Dr. Fleming also pointed out that W.G. had indicated that, aside from G.H. who resided out-of-state, he did not have a community support system to assist him in making a successful transition from prison. Dr. Fleming believed that the children's need for stability and permanence would be satisfied only by adoption.
Dr. Fleming also opposed placing the children with G.H. He concluded that it would not be in the children's best interests to be uprooted from their foster families, moved out of state and placed in the care of someone they did not know. He feared such a transition would be too difficult and stressed his disapproval of delaying permanency.
W.G. did not present any experts. He did, however, take the stand and testify that he was unaware of S.D.'s continuing drug use prior to Janet's birth. W.G. agreed that his incarceration had caused harm to his children, but pointed out that he had taken various life skills classes while in prison to improve himself.
W.G. stated that his plan for the children was for G.H. to adopt them. He acknowledged that G.H. had met the older children on only two occasions and admitted that he did not mention her to the Division until August or September 2008, explaining that he thought he could take care of everything on his own and did not have her address. He knew of no other relatives who could care for the children.
Point-du-Jour testified that if W.G. sought custody upon his eventual release from prison, he would have to complete parenting classes and a substance abuse program, as well as demonstrate stable housing and employment for six months to a year, before the Division would consider it safe to return the children to his care.
W.G. raises the following issues on appeal:
I. THE TRIAL COURT JUDGE'S DECISION MUST BE REVERSED BECAUSE THE DEFENSE COUNSEL FAILED TO MEET WITH W.G., ADVOCATE FOR HIS VISITATION RIGHTS, PREPARE HIM FOR TRIAL, OR COUNSEL HIM IN ANY MEANINGFUL MANNER, WHICH PREJUDICED W.G. DURING TRIAL AND LED TO THE TERMINATION OF HIS PARENTAL RIGHTS.
II. THE TRIAL COURT JUDGE'S DECISION MUST BE REVERSED BECAUSE W.G. IS A GOOD FATHER WHO WORKED HARD TO PROVIDE FOR HIS FAMILY WHILE THE DIVISION WRONGLY REMOVED HIS CHILDREN, FAILED TO PROVIDE HIM WITH PROPER VISITATION, AND PREVENTED W.G. FROM COMPLETING THE SERVICES WHICH HE WAS REFERRED FOR.
A. THE DIVISION FAILED TO FULFILL THE FIRST PRONG OF THE BEST INTERESTS TEST BECAUSE EVIDENCE OF ACTUAL HARM TO THE CHILDREN WAS LACKING, W.G.'S PARENTING ABILITY HAD NEVER BEEN QUESTIONED, AND W.G. PROVIDED A SAFE AND STABLE HOME FOR HIS CHILDREN.
B. THE DIVISION HAS FAILED TO PROVE THE SECOND PRONG OF THE BEST INTERESTS TEST AS W.G. HAS ENDED HIS RELATIONSHIP WITH S.D., COMPLETED A NUMBER OF SERVICES, AND HAS BEGUN ATTENDING SCHOOL.
C. THE DIVISION FAILED TO FULFILL THE THIRD PRONG OF THE BEST INTERESTS TEST BECAUSE W.G. WAS DENIED MEANINGFUL VISITATION, HIS FAMILY MEMBERS WERE NOT EVALUATED FOR PLACEMENT, AND HIS SERVICES WERE UNREASONABLY DELAYED.
D. THE FOURTH PRONG OF THE BEST INTEREST HAS NOT BEEN SATISFIED, AS W.G. IS A LOVING FATHER WHOSE BOND WITH HIS CHILDREN HAS ENDURED THROUGH A PERIOD OF TWO YEARS WITHOUT CONTACT.
W.G. contends that he was denied the effective assistance of counsel
at trial. He claims that his attorney never spoke with him about
separating from S.D., never told him he could appeal the children's
removal, never explained to him the statutory requirements for
termination of parental rights or how to avoid that result, never
asked him about relative resources,
never explained the option of kinship legal guardianship,*fn7
did not contact him while he was incarcerated, did not
prepare him for trial, told him he could not present witnesses and did
not provide a defense expert to testify at trial. We remanded the
issue of ineffective assistance of counsel to the trial judge for an
After the hearing at which W.G. and his defense counsel testified, Judge Kessler made detailed findings in support of his conclusion that W.G. had failed to demonstrate any of the alleged deficiencies. In making his findings, Judge Kessler found defense counsel to be more credible than W.G. with respect to the details of their interaction.
On appeal from the remand hearing, W.G. renews his argument that his counsel was ineffective because she failed to: (1) explain to him either before or after the removal of the children that he would likely have been allowed to continue parenting his children if he ended his relationship with S.D.; (2) advise him of the right to appeal the removal of the children; (3) counsel him regarding relative placement; (4) advocate for visitation; (5) communicate with him prior to and during trial and prepare him for his testimony; and (6) present witnesses on his behalf at trial. In addition, he contends for the first time on appeal that his trial counsel should have arranged a second psychological evaluation and that the first defense expert's report was admitted in error at the remand hearing.
To establish ineffective assistance of counsel in termination of parental rights cases, a defendant must demonstrate that: (1) counsel's performance was deficient, that is, it was outside the wide range of reasonable professional assistance; and (2) counsel's deficiency prejudiced the defense, that is, there is a reasonable probability that counsel's errors changed the result. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 308-09 (2007); Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984). Such a claim may be brought on direct appeal. B.R., supra, 192 N.J. at 311.
Judge Kessler found that W.G. admitted he was evaluated by a defense psychologist, which defense counsel did not present in court because it was unfavorable to W.G.'s position at trial. This contention, that his trial counsel should have sought a second expert when the first was not helpful, is not persuasive. As a threshold matter, an issue not raised at the trial level will ordinarily not be considered on appeal unless the issue is jurisdictional in nature or substantially implicates "matters of great public interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). This particular issue satisfies neither criteria.
Moreover, our scope of review is limited to whether the motion judge's decision is supported by the record as it existed at the time of the decision. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007); R. 2:5-4. W.G. presents no evidence that a second defense expert would have reached a different conclusion or that the first expert obtained by defense counsel was unqualified, incapable, or otherwise inadequate in some way. Psychologists who work in this area are professionally obligated to perform impartial evaluations focusing on the children's best interests.*fn8 We do not support the idea that a party in this type of case is automatically entitled to retain a second expert if the conclusions of the first are unfavorable.
Furthermore, by alleging ineffective assistance of counsel, W.G. waived the attorney-client privilege that would normally attach to the report. See State v. Bey, 161 N.J. 233, 296 (1999); N.J.R.E. 504(2)(c). It was necessary to admit the defense expert's report into evidence at the remand hearing for the limited purpose of proving that an expert was retained and to explain why that expert did not testify. W.G. discounts the defense expert's conclusion by arguing that ancillary conditions had a detrimental impact on the visit.*fn9 W.G. provided us with a copy of the defense expert's report. We did not consider it except as it is relevant to the allegation of ineffective assistance of counsel. Examined for this purpose only, the report unambiguously failed to support W.G.'s position.
Due to the fact-sensitive nature of family cases in general and parental rights cases in particular, our scope of review of a trial judge's findings of fact is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We ordinarily defer to the trial court's factual findings "because it has the opportunity to make first-hand credibility determinations about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citations omitted).
W.G. maintains that the Division failed to prove that his parental rights should be terminated. The law governing our analysis is well-known. Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). However, the constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). In some cases, severance of the parent-child relationship may be required to protect the child. A.W., supra, 103 N.J. at 599.
Under N.J.S.A. 30:4C-15.1(a), a court is authorized to terminate parental rights if the Division proves the following by clear and convincing evidence:
(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).]
"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.
Termination of parental rights permanently cuts off the relationship between children and their biological parents. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). When the biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise their children without causing them further harm. Ibid.
Judge Kessler reviewed the evidence thoroughly in his well-reasoned opinion of January 28, 2010. With regard to the first prong, Judge Kessler noted that W.G. admitted causing harm to his children by his incarceration. Incarceration is clearly a relevant factor in determining whether to terminate parental rights. In re Adoption of Children by L.A.S., 134 N.J. 127, 138 (1993); N.J. Div. of Youth & Family Servs. v. T.S. and K.G., 417 N.J. Super. 228 (App. Div. 2010). "Imprisonment necessarily limits a person's ability to perform the regular and expected parental functions. It also may serve to frustrate nurturing and the development of emotional bonds and as a substantial obstacle to achieving permanency, security, and stability in the child's life." N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006) (internal quotations omitted).
Judge Kessler found that prong two was satisfied by W.G.'s incarceration and its attendant consequences, which rendered him unable to eliminate the harm to his children. Judge Kessler specifically noted the lengthy period of time required to provide a safe home following his release, as well as the many other hurdles W.G. would have to overcome in the process.
Judge Kessler concluded that the Division made reasonable efforts to provide services to W.G. to help correct the situation, as required by the third prong. He noted the difficulty of providing services to a person in custody. N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div. 2007); S.A., supra, 382 N.J. Super. at 534. He concluded that the Division made sufficient efforts to place the children with a relative, given that G.H. does not know the children well, did not seek visitation, and further complicated the process by moving without notifying the Division.
Finding that the children's current caregivers wish to adopt, Judge Kessler also determined that kinship legal guardianship was not an alternative. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 509 (2004) (stating that "a kinship legal guardian may only be appointed when adoption of the child is neither feasible nor likely") (internal quotations omitted); see N.J.S.A. 3B:12A-6d.
Finally, in light of Dr. Fleming's testimony with regard to bonding, Judge Kessler found that, with regard to prong four, termination of parental rights will not do more harm than good.
As Judge Kessler's findings are supported by "adequate, substantial, and credible evidence" in the record, we defer to his conclusion that the termination of W.G.'s parental rights is the proper course of action to protect the children's best interests. Rova Farms Resort, supra, 65 N.J. 474, 484.
As a final observation, W.G.'s primary goal at trial was adoption by G.H., a relative who had seen only the older two children a few times and had clearly formed no bond with them. By seeking adoption with a paternal relative, W.G. was perhaps hoping to ensure contact with his children through a voluntary open adoption not enforceable in our state.*fn10 See In re Adoption of a Child by W.P., 163 N.J. 158, 171-73 (2000). A desire to ensure post-adoption visitation, however, is not a factor to consider in applying the best interests standard. The "court's function" is "to decide whether the parent can raise [his] children without causing them further harm." J.C., supra, 129 N.J. at 10. Here, W.G. does not wish to raise his children, but instead seeks only to guarantee visitation. See T.S., supra, 417 N.J. Super. at 243 (stressing that the parent "never advanced a desire to assume the child's care" in finding termination of parental rights to be in the child's best interests). While we understand his desire not to sever all ties with his children, the focus must remain on the children, who will be best served by termination of W.G.'s parental rights.