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New Jersey Division of Youth and Family Services v. L.T.R.


May 7, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-17-11.

Per curiam.



Argued March 27, 2012

Before Judges Simonelli and Hayden.

Defendant L.T.R. (Louis)*fn1 appeals from the March 17, 2011 Family Part order terminating his parental rights to his daughter, A.N.J.R. (Abigail), born in October, 2008. For the reasons that follow, we affirm.


We discern the following facts from the record. In June 2009, A.M. (Adele) was living with her two daughters, Zelda,*fn2

born in December 2001, and Abigail and was involved in a violent relationship with Louis.

On June 28, 2009, P.H. (Peter), Zelda's father, found Adele in her home, lying, bleeding and unresponsive; Abigail, then eight months old, was sitting unattended in the living room. Adele died from her injuries later that day. On June 30, 2009, plaintiff New Jersey Division of Youth and Family Services (Division) obtained a Family Court order granting it custody of Abigail and Zelda. Both children were placed with their maternal grandparents, where they remain to this day.

On July 2, 2009, the police arrested Louis and charged him with Adele's murder. As he was unable to post bond, Louis has remained incarcerated since his arrest. When a Division investigator met with Louis on September 30, 2009, he requested that Abigail be placed with his mother, but the Division ruled her out due to her substantiated history of child neglect.

A few weeks later, on October 20, 2009, the court denied Louis visitation with Abigail at that time because of allegations of his prior acts of domestic violence, including death threats against Zelda. In addition, the children's therapist opined that if Louis had murdered Adele, contact with him would be traumatic to his daughter because it might trigger memories of the incident that would interfere with the healing process. On November 18, 2009, Louis stipulated in court that he was unable to care for Abigail due to his incarceration and agreed to the court's continuing jurisdiction pursuant to N.J.S.A. 30:4C-12. In March 2010, a grand jury indicted Louis for first-degree murder in Adele's death.

On September 3, 2010 the Division filed a complaint for guardianship, seeking termination of Louis's parental rights to Abigail. Louis then requested that the Division place Abigail with his grandmother or his aunt. The Division declined to explore his relatives for placement since Abigail had been living with her maternal grandparents and her sister for over a year and had formed a strong attachment to them.

At a hearing on December 3, 2010, defense counsel advised the judge that due to the pending criminal charges Louis decided to assert his Fifth Amendment privilege against self-incrimination and did not plan to provide any testimony or witnesses during the guardianship trial. Louis also stated that, as a part of invoking his right against self-incrimination, he would not participate in any Division services, including counseling or anger management. As a result, the Division cancelled the psychological and bonding evaluations scheduled for Louis. Thereafter, Louis also refused to sign a release allowing the Division to review services he participated in while incarcerated. Throughout this time, none of Louis's relatives contacted the Division for information about Abigail or to ask that she be placed with them.

On January 5, 2011, Dr. Alan J. Lee, the Division's psychological expert, performed three bonding evaluations: one with Abigail and her maternal grandmother, another with Abigail and her maternal step-grandfather, and a third with both her sister Zelda and maternal grandparents. At this time, Abigail was twenty-six months old. Dr. Lee reported that Abigail had formed a significant and positive attachment to both maternal grandparents, with whom she had resided since she was eight months old. In Dr. Lee's opinion, separation from them would likely cause Abigail serious and enduring harm. He explained that the need for permanency was critical to a child her age since she was at the formative years in life. Stability was even more important in this case, according to Dr. Lee, because of the traumatic loss Abigail had suffered in her early life. Dr. Lee observed that for most children, witnessing such an event as Abigail had witnessed is confusing, traumatic, and disturbing. Dr. Lee concluded that the best plan for Abigail was to be adopted by her maternal grandparents, and that any delay in making this plan permanent would not be in the child's best interests.

The guardianship trial took place on March 17, 2011. The Law Guardian supported the Division's position, urging that termination of parental rights would be in Abigail's best interests. The parties stipulated to the admission of all DYFS exhibits, including Dr. Lee's reports of the bonding evaluations. At the end of the trial, Judge William Anklowitz issued an oral decision, concluding that the Division proved by clear and convincing evidence the four prongs of N.J.S.A. 30:4C- 15.1a and, therefore, terminated Louis's parental rights to Abigail. This appeal followed.

In 2012, prior to the oral argument in this appeal. Louis was convicted of first-degree murder for killing Adele.


On appeal, Louis contends that his parental rights were improperly terminated because the Division failed to prove, by clear and convincing evidence, all four prongs of the best interests of the child test specified in N.J.S.A. 30:4C-15.1a. In addition, Louis argues that, because he had not been convicted of a crime, the judge's decision was premature and based upon impermissible inferences of guilt. 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). However, we must uphold the trial court's factual findings so long as they are supported by "'adequate, substantial and credible evidence on 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)).

Guided by these principles, we are satisfied that Judge Anklowitz properly found that there was clear and convincing evidence in the record proving all four prongs of the best interests of the child standard. N.J.S.A. 30:4C-15.1.*fn3

Regarding the first and second prongs of the best interests of the child test, Judge Anklowitz concluded that the Division had proven that Louis, by being absent from his child's life for a prolonged period due to his incarceration, had clearly endangered her health and safety and his continued indefinite absence from his child's life prevented him from curing or ameliorating the harm. Moreover, the judge found that the delay in permanency for this child would exacerbate the harm. We concur.

As the judge acknowledged, incarceration cannot, by itself, justify a finding of harm but is a factor to be considered. In the Matter of the Adoption of Children by L.A.S., 134 N.J. 127, 143 (1993). Nonetheless, a lengthy period of incarceration can be tantamount to abandonment if incarceration renders the parent unable to perform the "regular and expected functions of care and support" of his or her child. Id. at 137. "A parent's withdrawal of . . . solicitude, nurture and care for an extended period of time is in itself a harm that endangers the health and development of [a] child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

We agree that Abigail has been and continues to be harmed by Louis's absence. The evidence demonstrated that Louis's extended indefinite incarceration has rendered him unable to provide care and support to his daughter and has prevented him from developing a relationship with her during what Dr. Lee described as a critical formative period. "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 and Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006) (internal citations and quotations omitted).

We reject Louis's argument that the judge had erroneously based his decision concerning any harm to Abigail on his pre-trial incarceration, because he was entitled to a presumption of innocence. During the proceedings and on appeal, Louis has argued that the trial was premature because he could be acquitted in the near future. The judge observed that there was no reliable prediction for when the trial would be completed and the process could continue to leave the child in limbo for many years, which would fly in the face of the legislative intent to promptly dispose of guardianship proceedings in order to advance a child's health, welfare and stability. In re P.S. and J.S., 315 N.J. Super. 91, 115 (App. Div. 1998).

Further, our review of the record reveals, contrary to Louis's claims, that the trial judge neither presumed Louis's guilt nor assumed Louis would be found guilty. Rather, he based his decision on the prolonged and indefinite nature of Louis's incarceration, the formative age of the child, the solid bond between the child and her grandparents, and the lack of any relationship between Louis and his daughter. Moreover, since Louis's March 12, 2012 murder conviction, his argument that he could be released any time is no longer plausible.

Furthermore, Dr. Lee opined that Abigail was bonded to her maternal grandparents, who have raised her since she was eight months old. In contrast, Louis has no relationship with Abigail and will continue to be incarcerated into the indefinite future, and his absence from her life has caused the formation of an enduring emotional parental bond with her maternal grandparents. Thus, we are satisfied that the judge's findings as to the first and second prongs are amply supported by the record.

We also note that defendant's recent conviction on first-degree murder transformed the indefinite nature of the incarceration to a more definite and lengthy one.*fn4 While not relied upon by the trial judge, Louis' conviction for murdering Abigail's mother adds considerable weight to the prong one finding that Louis caused harm to the child and the prong two finding that he will be unable to ameliorate the harm of his inability to care for Abigail.

The third prong of the best interests test contemplates the Division making reasonable efforts that focus on assistance to the parent to correct and overcome those circumstances that led to the placement of the child. K.H.O., supra, 161 N.J. at 354. The Division's efforts, however, should be measured not by their success but against the standard of adequacy in light of the family's needs in a particular case. D.M.H., supra, 161 N.J. at 390. As part of this inquiry, "the court must consider the alternatives to termination of parental rights and whether the Division has acted reasonably." N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 434-35 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002) (citing N.J.S.A. 30:4C-15.1a).

In finding that the Division had made reasonable efforts to provide services to Louis, Judge Anklowitz recognized that the Division had been prevented from providing services due to Louis's incarceration throughout the proceeding. Nevertheless, failure to provide services to an incarcerated parent due to "the difficulty and likely futility of providing services to a person in custody" does not prevent the Division from meeting its burden under this prong. N.J. Div. Youth and Family Servs. v. T.S., 417 N.J. Super. 228, 242 (App. Div. 2010). Here, the Division investigated Louis's mother but properly ruled her out due to her substantiated child abuse history. It placed the child with maternal relatives and, due to the success of that placement, reasonably declined to move the child to Louis's relatives. Further, as the grandparents wanted to adopt the child and give her permanency, the trial judge found that no viable alternatives were evident that offered Abigail the permanency she needed and deserved. Under the unique circumstances of this family, we agree with the trial judge that the Division has satisfied the third prong by clear and convincing evidence.

Finally, the fourth prong, which addresses whether termination will do more harm than good, focuses on whether "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 foster parents." K.H.O., supra, 161 N.J. at 355. The judge must make this determination against the background of New Jersey's "strong public policy" in favor of permanency. Id. at 357.

In this case, the evidence persuasively demonstrates that termination of Louis's parental rights will not do more harm than good. As the judge noted, Louis had no relationship with his daughter, who had spent most of her life with her maternal grandparents. Nothing in the record suggests that she would suffer any harm if her relationship with her father was severed. By contrast, Dr. Lee provided undisputed evidence that Abigail would suffer severe and enduring harm if separated from her grandparents and sister. Balancing the lack of harm from the termination of Louis's rights with the benefit for Abigail to remain in the stable permanent home to which she is entitled, Judge Anklowitz properly terminated Louis's parental rights.


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