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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...