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New Jersey Division of Youth and Family Services v. W.E

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 2, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
W.E., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF A.F.R.*FN1 AND M.L.R., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-42-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 19, 2012

Before Judges Sabatino and Fasciale.

Defendant, W.E., the biological father of M.L.R. ("Mary")*fn2

appeals the Family Part's final judgment of guardianship issued on March 10, 2010 terminating his parental rights, which was entered after a three-day trial. Mary was subsequently adopted by a foster parent in August 2010. The Division of Youth and Family Services ("DYFS" or the "Division") and the Law Guardian for the minor both oppose defendant's appeal of the guardianship judgment as lacking in substantive merit. The Law Guardian further contends that the appeal is moot, in light of the child's adoption. We affirm.

I.

The pertinent facts reflect that defendant had been incarcerated for much of Mary's short life up until the time of trial, and he had only limited contact with her during the periods when he was not incarcerated.

Mary was born in April 2007. She has two older half-sisters and one older half-brother, A.F.R. The half-sisters share a biological father, and A.F.R. has a different biological father. All of the half-siblings had been removed from the mother's care prior to Mary's birth.

The Division removed Mary from her biological mother, T.R., on an emergency basis several days after her birth. Then, she was placed with a foster parent who has since adopted her. The birth mother has not appealed the final judgment terminating her own parental rights.

At the guardianship trial, defendant testified that he became aware from a friend that the biological mother was pregnant with Mary about three to four months after the mother, who was then married to another man, had relations with defendant. According to defendant, he met with the biological mother when she was approximately seven months pregnant.

The day after Mary was born, defendant visited Mary and her mother at the hospital. Defendant testified that he went to the hospital because he allegedly told T.R. that he wanted to be a part of Mary's life, provided that he was confirmed to be the child's father. Defendant recalled that he visited the hospital on two occasions.

In June 2007, a paternity test confirmed that defendant was Mary's biological father. According to a Division report in evidence, defendant did not return phone calls from its staff at that time regarding the paternity test results, and the biological mother told the Division that defendant had not asked to see Mary.

After visiting Mary at the hospital shortly after her birth, defendant did not see her again until approximately two to three months later. There is no proof that he contacted the Division personally during this pre-incarceration period in order to schedule a visit. Defendant's visits with Mary were instead arranged through the biological mother, who would inform him of the visitation dates. Defendant estimated that he visited Mary during that initial period, before his incarceration, on a biweekly basis.

In January 2008, defendant pled guilty to various drug and weapon charges, and he began serving his sentence for those offenses. The sentence imposed was a custodial term of five years, with a thirty-month parole disqualifier. When defendant testified at the guardianship trial in December 2009, he was still serving that sentence. He noted in his trial testimony that, unless he were admitted into the Intensive Supervision Program, see R. 3:21-10(e), his earliest release date was June 29, 2010, and his maximum release date was in August 2012.

Defendant was incarcerated in various prisons from January 2008 through the time of trial. From January 2008 to June 2008, he was held at Mercer County Correctional Facility. Then defendant was incarcerated at the Kraft Reception Center from June 2008 to July 2008. From July 2008 to August 2008, defendant was imprisoned at Yardville. Next, defendant was held at East Jersey State Prison from September 2008 until October 2008. Defendant was then transferred to Northern State Prison, where he was confined from October 2008 until June 2009. Finally, when defendant testified at trial, he was again being housed at Yardville, where he had been since June 2009. As an adult, defendant had been incarcerated twice prior to his most recent conviction in January 2008.

The Division first became involved with Mary's biological mother in early February 2006. At that time, a daycare facility for one of T.R.'s other children notified the Division that T.R. had punched that child in the mouth. In addition, the HomeFront Shelter program contacted the Division in April 2006, relaying concerns that the biological mother was abusing her children.

On April 7, 2006, the Division removed the children from the biological mother's care through an emergency removal without a court order*fn3 and placed the children in a foster home.

The Division filed a complaint for guardianship to terminate the parental rights of defendant and the biological mother as to Mary in April 2008. At a hearing that same month, the trial court approved a plan of termination of the parental rights of both of Mary's parents.

In October 2009, defendant requested jail visitations with Mary, asserting that he did not want his parental rights to her terminated. The trial court denied that request for visitation for several reasons. In particular, the judge noted that defendant did not have a sufficient relationship with Mary before he was incarcerated, that he had not developed a relationship with her while he was incarcerated, and that the guardianship trial was scheduled to begin soon in approximately sixty days.

The guardianship trial took place over three intermittent days in December 2009 and February 2010. The Division presented testimony from several witnesses.

Heather Tilghman, a caseworker in the Division's adoption unit, testified that she was originally assigned as Mary's case manager in December 2008. Tilghman was still the case manager as of December 2009 when the trial began. Tilghman noted that Mary had been placed in a foster home several days after her birth. Tilghman stated that Mary calls her foster parent "Mommy," and they are in an affectionate relationship. Additionally, Tilghman testified that Mary's foster mother and the foster parents of her half-brother arrange visits between the half-siblings.

During her testimony, Tilghman referred to a bonding evaluation that a psychologist, Dr. Alan Gordon, Ed.D., had performed at the Division's request concerning Mary's relationship with her foster mother. Dr. Gordon completed that evaluation in September 2008, and issued a written report the following month. He observed that Mary was very affectionate with her foster mother, and that Mary enjoyed contact with her. Additionally, he determined that the foster mother was well prepared to care for Mary.

Dr. Gordon noted that the foster mother was an administrative secretary for a school district, and had worked there for thirty-eight years. The foster mother also had a grown daughter and a grown son. When evaluating the harm that would occur if Mary were removed from the foster mother, Dr. Gordon wrote in his report:

It would be the same as removing any birth child from their birth mother. This is the home that [Mary] has found her greatest level of security. Removing her from this environment would be highly detrimental. There is little question that there is a genuine commitment on the part of [the foster mother] towards [Mary]. She wants to adopt [Mary] and it is felt that this would be in the child's best interest.

Tilghman further testified about the Division's contact with defendant's two younger sisters, who defendant had identified as potential caretakers while he was in prison, as to Mary's placement. She explained that the Division had sent them both a "best interest" letter on December 31, 2008, stating that it was not in Mary's best interest to remove her from her foster mother's care. The Division informed the sisters to contact the Division if they had any questions. However, according to Tilghman, the sisters did not do so.

Tilghman also stated that defendant never contacted her by phone, letter, or in person. She asserted that the first time she communicated with defendant was during the trial in December 2009.

Dr. Amy Becker-Mattes, an expert clinical psychologist, also testified on behalf of the Division. Dr. Becker-Mattes conducted a bonding evaluation in September 2009. Mary was approximately two-and-a-half years old at the time of the evaluation, having resided continuously with her foster mother since she was several days old.

Dr. Becker-Mattes testified that she observed Mary and her foster mother for approximately one hour. According to Dr. Becker-Mattes, a bonding expert, the relationship appeared to be "unusually close and loving[.]" Dr. Becker-Mattes opined that if the bond between Mary and the foster mother were broken, Mary would experience enduring and serious harm. Specifically, Dr. Becker-Mattes testified that:

My opinion regarding [Mary] is that she is firmly and healthfully bonded to her foster mother. It is my opinion that if she were removed from that situation I think it would have terrible consequences for that child to be put in anyone's company. She's been with her foster mother since she was a newborn and she . . . just seems very attached and very involved and very happy where she is . . . I can't imagine ripping her out of that situation. I think it would be a real disservice to the child.

The Division also presented the testimony of Java Pace-Brown, who was the Division's case manager for Mary's family from September 2007 through September 2008. According to Pace-Brown, defendant had provided the Division with the names of several sisters that might serve as potential caregivers. Pace-Brown testified that the Division followed up with those individuals. One sister was not interested. Another sister was interested and was supposed to start familiarizing herself with Mary, but that did not occur.

Pace-Brown testified that the Division issued "rule-out" letters to two of defendant's three sisters, excluding them as possible caretakers for Mary. According to Pace-Brown, none of the sisters responded to the Division to express or renew an interest in serving as a caretaker. Pace-Brown testified that she had attempted to facilitate visits between one of defendant's sisters and Mary. However, according to Pace-Brown, the parties "play[ed] phone tag" and such visits did not occur.

Both Dr. Gordon and Charles Kaska, Psy. D., evaluated defendant prior to trial and provided reports.

Dr. Gordon evaluated defendant in November 2008. When asked by Dr. Gordon the identify of Mary's biological mother, defendant responded "[s]ome girl," and he could not remember her first name. Defendant asserted that he did not belong to a gang at that time, but that he had once belonged to the Bloods gang before allegedly renouncing his membership.

Defendant acknowledged to Dr. Gordon that he had first used drugs at the age of fifteen. He was incarcerated at Jamesburg reformatory when he was fifteen years old, and as an adult he spent time in several penal institutions. Defendant had completed the eighth grade, but failed the graduate equivalency diploma test.

Dr. Gordon administered a Millon Clinical Multiaxial Inventory-III psychological test to defendant. Based upon those test results, Dr. Gordon concluded that defendant exhibited a mild-to-moderate severity level of psychological dysfunction. According to Dr. Gordon, defendant exhibited anger and antagonism. Furthermore, Dr. Gordon opined that defendant's "emotional integration appears to be weak. He has not been able to learn from experience or punishment." Dr. Gordon also stated that defendant exhibited an antisocial personality.

Ultimately, Dr. Gordon concluded that defendant would not be capable of providing for Mary. He noted that defendant did not have a residence suitable for himself and a child, and that he generally did not possess the qualifications and skills for parenting. The record indicates that Mary would have been three years old at the earliest when defendant could be released from prison. Given the situation, Dr. Gordon found that defendant's "plan for the child is unrealistic."

Dr. Gordon thus recommended that defendant's parenting rights as to Mary should be terminated in order for her to achieve permanency. He opined, to a "high degree of psychological certainty," that defendant "will not be able to parent his child in the foreseeable future."

At the request of defense counsel, Dr. Kaska performed his own evaluation of defendant at the Garden State Youth Correctional Facility in November 2009.

As noted in Dr. Kaska's evaluation, defendant has another daughter by a different mother than T.R. That child was twelve years old at the time of defendant's interview, and her relationship with defendant was only briefly mentioned during the trial.

Defendant told Dr. Kaska that he began using marijuana when he was in his early teens, and used it daily up to four times per day until his early twenties. Defendant estimated that he had been arrested more than ten times as a juvenile for various offenses, and less than ten times as an adult.

A Rorschach test administered to defendant by Dr. Kaska revealed that defendant has a "marked tendency to oversimplify his experiences and back away from complexity." Dr. Kaska also noted that defendant "has not developed an adult level of capacity for the objective analysis of problems."

Defendant advised Dr. Kaska that he planned to raise Mary as a single parent with the assistance of relatives. Dr. Kaska found that defendant did not suffer from any mental affliction or limitation that would prevent him from serving as an adequate parent. However, Dr. Kaska acknowledged that defendant had "not developed adequate cognitive and emotional coping strategies for negotiating the challenges inherent in everyday living." Furthermore, Dr. Kaska found that defendant "can be expected to reach erroneous conclusions and embark on ill-advised courses of action because he does not invest himself sufficiently in the process of thinking situations through to an adequate resolution." Dr. Kaska also noted that defendant "knows that he is not in a position to receive [Mary] into his care at this time and recognizes that he may not be in such a position for months and perhaps years to come."

Defendant testified on his own behalf. He acknowledged that he did not make an effort to contact the Division to arrange a visit with Mary before he was incarcerated. He instead relied on the biological mother to notify him of any visits.

Defendant noted that he participated in several training programs in prison, including a barber class, a class where he learned interviewing skills and how to create a resume, narcotics and alcoholics anonymous, and a behavior modification program that taught anger management skills.

Defendant stated that after his release from prison, he hoped to work in a friend's clothing store. Defendant acknowledged that he was not in a position to care for Mary upon his release because, as he put it:

I don't have nothing to offer her or myself right now so me getting custody of her when I'm not even sure where I'm going to be living at or I don't know how long it's gonna take me to get a job so I know I won't be able to provide for her if I can care for myself.

Defendant expressed the desire for Mary to live with either one of his sisters or her foster mother until he was prepared to care for her.

The biological mother also testified on her own behalf. In general, she discussed the services she had received from the Division, the various places she had lived, and the extent of her relationships with her children. Her testimony was largely unrelated to defendant's issues except for her explanation of how visits were arranged with him prior to his re-incarceration in January 2008.

Following the three-day trial, the trial judge issued an oral opinion on March 10, 2010. The judge concluded that the Division had established all four prongs of N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence, to warrant terminating defendant's parental rights. Applying the principles set forth in In re Adoption of Children by L.A.S., 134 N.J. 127 (1993), the judge explained how defendant's incarceration factored into his analysis. The judge noted that incarceration can be a relevant factor in determining whether to terminate a parent-child relationship because such confinement can amount to abandonment or neglect.

In particular, the judge found the Division had satisfied the first statutory prong, N.J.S.A. 30:4C-15.1(a)(1), by demonstrating that defendant had withdrawn his care, did not financially provide for Mary, and did not perform the parental functions. Under the second prong, N.J.S.A. 30:4C-15.1(a)(2), the trial court found that defendant would not be able to cure the harm that would result from breaking the existing bond between Mary and her foster mother.

Analyzing the third prong of the statute, N.J.S.A. 30:4C-15.1(a)(3), the trial court noted that defendant's incarceration had limited the Division's abilities to provide him services. Prior to incarceration, defendant had not contacted the Division for services, and did not offer himself to the Division as a caretaker for Mary. Thus, the judge found that under prong three, no services provided by the Division could have reasonably enabled defendant to be able to parent.

Lastly, under prong four of the statute, N.J.S.A. 30:4C-15.1(a)(4), the trial court analyzed whether the termination of defendant's parental rights would do more harm than good to Mary. In this regard, the judge observed that defendant had not bonded with Mary. Additionally, defendant had presented no evidence that he would be fit to care for Mary, or that he could mitigate the harm caused by separating Mary from her foster mother.

The trial court also terminated the biological mother's and the legal father's parental rights to Mary and her half-brother at the same hearing. Thereafter, the foster mother adopted Mary on August 27, 2010.

Defendant filed his notice of appeal, out of time, on April 21, 2011. He was granted leave by this court to accept that late filing.*fn4

II.

Defendant raises several arguments in an effort to set aside the final judgment. Fundamentally, he contends that the trial court erred in its application of the four statutory factors governing termination. More specifically, defendant argues in his main brief that there was insufficient proof for the trial court to conclude that (1) he had abandoned his daughter; (2) no bond existed between him and Mary; (3) the Division had made appropriate efforts to keep Mary and her half-siblings together; and (4) placement of Mary with other paternal relatives was inappropriate. In his reply brief, defendant amplifies these points and further argues that (5) the Division and the trial court denied him due process; and (6) the court's "best interests" finding under prong four was flawed.

Having fully considered each of these arguments,*fn5 we affirm the termination of defendant's rights, substantially for the sound reasons expressed in Judge Lawrence P. DeBello's bench opinion of March 10, 2010. We add only the following comments.

The trial court's findings as to the first prong, including its references to defendant's incarceration, are amply supported by the record, whether or not defendant's circumstances are described as "abandonment." As the Supreme Court recognized in L.A.S., and as we also have noted, a parent's imprisonment clearly limits his or her ability to care for a child. See L.A.S., supra, 134 N.J. at 138; see also N.J. Div. of Youth and Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006). Additionally, imprisonment "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.'" S.A., supra, 382 N.J. Super. at 534 (quoting L.A.S., supra, 134 N.J. at 139).

Defendant correctly notes that a parent's incarceration, in and of itself, does not justify termination as a matter of law. See ibid. However, there is ample additional evidence in the record to sustain the trial court's finding that Mary's safety, health or development have been or would continue to be endangered by defendant in this case. The trial court correctly noted that defendant had minimal contact with Mary prior to his incarceration. He visited Mary at the hospital only twice after her birth. After Mary was released from the hospital, defendant's visitation was limited to intermittent contact arranged through the biological mother. Indeed, in defendant's own estimation, those initial pre-incarceration visits only occurred biweekly. As noted by the trial court, defendant "[n]ever provided financial support, [and he] did not have any visitation while incarcerated[.]" There is no proof in the record that defendant personally requested to visit Mary while he was incarcerated until his belated request that was reasonably rejected two months before the trial.*fn6 Defendant was represented by counsel throughout the pretrial period, and he made no other visitation requests. Moreover, as highlighted by the trial court, defendant's "plan upon release would be for, again, someone else to care for the child until he can take care of himself."

Second, the record adequately supports the trial court's finding of a lack of a bond between defendant and the child. As we already have noted, defendant's contact with his infant daughter in the first year of her life before his incarceration in January 2008 was abbreviated and infrequent. Given that sparse interaction, it was not necessary, as defendant contends, for the Division or the trial court to have ordered a father-daughter bonding evaluation.

Third, neither the Division nor the trial court acted improperly by not making greater efforts to place Mary with any of her half-siblings. A Division report notes that at the time of Mary's birth, her half-siblings apparently had been moved from foster care to Angel's Wings because their own foster mother was sick with pneumonia. A Division report from August 13, 2007 indicates that at one point there were discussions about a family friend possibly adopting the three older half-siblings, but there is no proof that that possibility ever progressed beyond a hypothetical notion. Moreover, placing Mary with her female half-siblings became effectively infeasible by June 2008 when they moved to live with their own biological father in Florida.

In addition, the record indicates that Mary's foster mother made several attempts to develop Mary's relationships with her half-siblings. For example, her foster mother brought Mary to Florida to visit her half-sisters. Furthermore, as Tilghman testified at trial, the half-brother's foster parents and Mary's foster mother have likewise arranged visits between those children.

Fourth, the Division and the trial court did not act unreasonably in ruling out defendant's three sisters as caretaking options. One of the sisters declined any interest in serving in that role. By the time that one of the other sisters advised the Division that she was willing to care for Mary, the child had already been with the foster mother for a substantial period of time in the only home that she had known. Given Dr. Gordon's unrebutted expert findings that removal of Mary from the foster mother would have been harmful to her, the decision not to place Mary with her aunt was entirely reasonable.

Fifth, we discern no violation of defendant's due process rights. Despite his incarceration, he was represented by counsel during the proceedings. The trial court did not act arbitrarily in declining defendant's first request for visitation with Mary at the prison, which he advanced only two short months before the guardianship trial. We acknowledge that there appears to be some period of time in which the Division had not kept fully abreast of defendant's repeated transfers from prison to prison. However, defendant's counsel remained in the case to advocate his interests. It is speculative to conclude that defendant would have developed a meaningful and steady relationship with his young daughter while he was so frequently relocating to different penal facilities. We recognize that those internal transfers within the penal system were not within defendant's control; nevertheless, they presented a practical impediment that bears upon the trial court's conclusion that the Division acted reasonably under the circumstances.

Finally, the trial court's "best interests" analysis on prong four is unassailable. Even defendant's own expert could not say that defendant would be fit to care for Mary upon his release from prison. The psychological problems that Dr. Gordon identified in his own assessment of defendant also raise serious concerns. Moreover, the strong bond that Mary had developed with her foster mother, virtually since her birth, was too substantial to break without harming the child. The trial court rightly perceived that Mary's need for permanency with a stable foster mother - who was interested in adopting her and ultimately did so - outweighed defendant's conjectural hope that he might successfully bond with his daughter and provide her with suitable care in the distant future. See In re Guardianship of K.H.O., 161 N.J. 337, 357-58 (1999).

Affirmed.


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