May 11, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF C.B. AND G.B., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-186-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2012 -
Before Judges Fuentes, Graves and Koblitz.
Defendant J.R. is the biological father of two girls, G.B. (Cathy), born in 2004, and C.B. (Debbie), born in 2006.*fn1
Defendant appeals from the order of the Family Part terminating his parental rights. The biological mother, S.B.,*fn2 voluntarily agreed to an identified surrender of her parental rights, designating the girls' seventy-two-year-old maternal great-grandmother R.M., as the putative adoptive parent. The order terminating defendant's parental rights clears the way for R.M. to legally adopt both children.
Defendant argues that the Division of Youth and Family Services (Division) failed to prove, by clear and convincing evidence, the four statutory factors necessary to terminate his parental rights under N.J.S.A. 30:4C-15.1(a). He also argues that he was denied his right to counsel during important phases of this litigation, and that his trial attorney's performance denied him his constitutional right to effective assistance of counsel. We reject these arguments and affirm.
We derive the following facts from the record developed before the trial court.
Cathy and Debbie were both born in the State of Tennessee. Defendant and S.B were legal residents of Georgia when their daughters were born; defendant still resides there. The Division executed an emergency removal of the two girls in 2009 after learning that S.B. was using heroin and neglecting her children. Defendant was not involved in the girls' lives at the time. The children were placed with their maternal great-grandmother, R.M., shortly after they were removed from their mother's custody.
During the course of the litigation, defendant failed to comply with court-ordered services and was generally uncooperative with the Division's efforts to ascertain his fitness to parent these children. Defendant was also arrested on an outstanding warrant while this case was pending and remained incarcerated for three months. He repeatedly failed to appear at court-scheduled hearings, and was not present at trial. Both the Division and his own counsel were unable to contact defendant for extended periods of time.
Defendant and S.B. never married. Defendant recently married another woman with whom he has an infant son; all three reside in Georgia. The record developed before the trial court established, by clear and convincing evidence, that, in addition to his substance abuse problem, defendant has a history of criminal involvement indicative of antisocial behavior; suffers from untreated psychiatric disorders; and has exhibited generally dysfunctional behavior.
At trial, the court considered the testimony of psychologist Melissa Rivera Marano, Psy.D., who evaluated defendant for the purpose of forming an opinion as to his ability to parent his daughters. Dr. Marano opined that reuniting defendant with this daughters was not in the children's best interest. Dr. Marano also conducted a bonding evaluation between defendant and his daughters. She found defendant behaved appropriately with the girls, was sufficiently encouraging, and "demonstrated positive parenting characteristics." Although defendant appeared sincere in his desire to assume responsibility for the care of his two young daughters, Dr. Marano noted that his "history of impulsive acts, poor decision-making, antisocial behavior, addiction and emotional instability" rendered him "unable to assume independent caretaking responsibilities and custody of his daughters."
Dr. Marano also conducted a bonding evaluation between the children and R.M. She found R.M. was "highly invested in both girls" and remained engaged and focused on them throughout the assessment. She observed that the girls "are secure in their knowing that [R.M.] is their primary caregiver." Dr. Marano noted "the ease of interaction and manner by which they communicated indicates [t]hat the girls are secure in their attachment with [R.M.]" Ultimately, Dr. Marano concluded that the children require the permanency and stability afforded by their relationship with R.M., but offered her support for continued contact and visitation with defendant.
The Law Guardian retained psychologist Robert Miller, Ph.D. to conduct psychological evaluations of defendant and his current wife. Based on defendant's history of substance abuse, including alcohol and prescription medication, and his refusal to participate in court-ordered treatment services, Dr. Miller opined that his prognosis was poor.
As to his parenting ability, Dr. Miller observed that defendant was unable to describe his children's personalities, developmental milestones, or current functioning with detail sufficient to indicate "adequate attachment or commitment." He never took action to protect his children from their biological mother's heroin abuse, nor could he explain why he never sought to obtain custody of the girls. Based on these events, Dr. Miller opined that defendant has been and continues to be unable to provide "independent safety, consistent care, or emotional nurturance for his daughters[.]"
Defendant admitted to Dr. Miller that he had been sexually abused as a child by an older boy in his neighborhood. According to Dr. Miller, this experience had a profoundly negative impact on defendant, causing him to resort to drugs and alcohol as a form of self-medication. Dr. Miller concluded that placement of the children in the care and custody of defendant and his wife would expose the girls to "significant risk for safety, exposure to substance abuse behavior, untreated depression, and consequent emotional neglect."
Dr. Miller also performed bonding evaluations between the girls and defendant, and the girls and R.M. In Dr. Miller's view, the children did not demonstrate spontaneous behaviors indicating an attachment to their biological father. Dr. Miller assessed defendant as being "increasingly lethargic," minimally engaged, and passive throughout the encounter with the girls. The interactions between the children and defendant "appeared awkward and lacking in apparent affection."
By contrast, Dr. Miller determined that the children viewed R.M. as the most central and reliable adult in their lives. He observed the girls as being physically affectionate towards R.M and found R.M. able to engage and comfort the girls, while also setting appropriate limits. There was an affectionate bond between R.M. and the girls. Dr. Miller recommended the children remain with R.M. due to their emotional attachment to her and their need for permanence and stability.
The Division also presented the testimony of William Larrinaga, the case worker assigned to this case. He testified concerning the efforts made by the Division to provide reunification services to this family. Because defendant was not present at trial, Larrinaga was asked to describe the efforts the Division took to apprise defendant of the trial date. Larrinaga testified that defendant was served with notice of the trial date by certified and regular mail; defendant was also notified of the trial date at the previous hearing, in which defendant participated by telephone.
According to Larrinaga, defendant did not communicate with him for extended periods of time, despite numerous attempts to contact defendant concerning his rights to see his daughters. Larrinaga also testified that the Division had offered to fly defendant from Georgia to New Jersey for the purpose of seeing the children.
The Division twice requested the Georgia child protective agency to conduct interstate placement/home evaluations to determine the suitability of defendant's living arrangement in that state. After repeated attempts at contacting defendant throughout July and August 2009 to obtain the documents required for the interstate placement assessment, the Georgia child protective agency denied defendant's application to approve his home as a suitable placement for the girls. The decision was predicated on defendant's "failure to cooperate with the assessment process." During this time, defendant did not visit his children, nor did he contact the Division in New Jersey to discuss visitation. Larrinaga also testified about his numerous unsuccessful attempts to compel defendant to receive substance abuse treatment in New Jersey, Georgia, or Tennessee.
Defense counsel did not call any witnesses or move to admit any documentary evidence. Defendant was not present at the time Judge Mark Nelson delivered his decision from the bench.
Judge Nelson found that the Division had met its burden of proving, by clear and convincing evidence, all four statutory prongs under N.J.S.A. 30:4C-15.1(a), and that defendant was not fit to parent these children. Given the key importance of parental fitness in determining the best interest of the children involved in this guardianship action, In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002), we affirm substantially for the reasons expressed by Judge Nelson. We add only the following comments.
Defendant was absent as a parental figure during the two years the girls were in the care of their maternal great-grandmother. Judge Nelson found, and the record supports, that the girls have been thriving in the stable and loving environment provided by R.M. During this same time period, defendant was incarcerated, suffered from untreated mental health problems, used illicit drugs, and abused prescription medication. His absence from the girls' lives has prevented the development of any meaningful emotional ties between defendant and his daughters. By contrast, the girls have bonded with R.M. Under these circumstances, severing the bond between the girls and R.M., in favor a man who has been physically absent and emotionally unavailable, would be highly detrimental to these children, and inconsistent with their best interests. The termination of defendant's parental rights is thus clearly warranted.
Defendant's arguments concerning the deprivation of counsel at critical points of these proceedings is without merit. It is beyond dispute that an indigent parent is entitled to legal representation in a proceeding where his rights to care or access his children are at stake. See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305-07 (2007); see also N.J.S.A. 30:4C-12. That right, however, was not violated here.
Defendant, for the first time on appeal, claims that he was denied his right to counsel on two occasions: (1) at the May 27, 2009 hearing on the order to show cause; and (2) at the outset of the guardianship litigation following the dismissal of the FN litigation on June 23, 2010. Defendant argues that the denial of counsel at these two points prejudiced his rights to representation and undermined the viability of the entire process. We disagree.
The record shows that defendant appeared unrepresented on May 27, 2009, the return date of the order to show cause. However, the court did not take any action at this hearing that can be reasonably viewed as adverse to defendant's interest. At this hearing, the court granted defendant unsupervised visitation with his daughters, and ordered the Division to make an interstate referral in response to defendant's request that the girls be placed in his home. Defendant applied for counsel on that same day and was represented at each of the next five hearings in the protective services litigation.
Defendant claims that his failure to visit his children for over fourteen months was due to his lack of counsel at this hearing. He argues that if he had representation at the time, counsel would have insisted on a firm visitation schedule and asked that the Division assist with transportation costs. Once again, defendant's claims are not supported by the evidence. The record shows the Division made repeated efforts to establish a regular visitation schedule. The Division also offered defendant transportation to New Jersey for visitation with his children. These offers were either rebuffed or ignored by defendant. It is also noteworthy that defendant failed to raise these concerns before the trial court during the hearings held in July and October 2009, in which defendant both appeared and participated via telephone.
Finally, defendant argues that he was denied effective assistance of counsel based on the following claims:
1. appointed counsel failed to take steps at the July 17, 2009, hearing to "obtain financial assistance to facilitate visitation" or a firm visitation schedule;
2. at the same hearing, counsel did not challenge the court's previous order directing the Division to refer only defendant for an ICPC assessment;
3. at the June 23, 2010, hearing, counsel failed to object to termination of the protective services litigation "knowing full well that [J.R.] had not even been served" with the guardianship complaint;
4. during the September 22, 2010, hearing, appointed counsel in the guardianship litigation failed to request an adjournment of the December 2010 trial date even though he was advised that J.R. was incarcerated in Georgia; and
5. counsel "made absolutely no effort to defend him" at the April 2011 trial, as shown through his failure to offer placement with defendant's father as an alternative to termination of parental rights.
None of these claims are supported by the record, or warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied defendant received effective assistance of counsel at all critical stages of this guardianship trial. See B.R., supra, 192 N.J. at 306.