December 11, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF T.F., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-81-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2012
Before Judges Yannotti, Harris and Hoffman.
Defendant T.P. appeals from the October 31, 2011 judgment of
guardianship entered by the Family Part terminating his parental
rights to his son, T.F. (fictitiously referred to as Todd).*fn1
Defendant contends that plaintiff New Jersey Division of
Youth and Family Services (the Division)*fn2 failed to
prove by clear and convincing evidence two of the four requisite
statutory factors to establish that Todd's best interests would be
served by terminating his father's parental rights. We disagree and
Todd, born in June of 2004, is the biological child of T.F. and defendant. Todd is autistic - he is non-verbal and not toilet trained. It is unlikely he will ever be able to live independently. He was born at twenty-eight weeks gestation, weighing one pound eleven ounces. T.F. tested positive for marijuana at the time of Todd's birth. Defendant and T.F. never lived together.
Todd lived with T.F. and his maternal grandmother, D.W., during the first year of his life. In 2006, a Family Part judge granted D.W. legal and physical custody of Todd due to T.F.'s substance abuse.
At the time of Todd's birth, defendant was incarcerated in the Monmouth County Jail on drug-related charges. He later was sentenced to state prison on those charges and was incarcerated from February 26, 2005 through April 14, 2008.
Upon his release from prison, defendant went to live with his brother in Howell. Todd came to live with defendant three weeks later. On September 10, 2008, Todd's school teacher reported to the Division that he arrived at school with bruises and scratches on his body. The Division investigated the referral and had Todd evaluated at Jersey Shore Medical Center. The examining physician found linear and parallel bruising on Todd as well as bruising along his left ear, and opined that the bruises were not accidental, but inflicted. Although at the time Todd was in the physical custody of his grandmother, D.W., he was staying with defendant.
One week later, the Division received another report from Todd's school. This time Todd came to school with a swollen lip and a large bruise on his shoulder. The Division had Todd examined by the same physician who examined Todd the previous week. He indicated the bruises to Todd's shoulder appeared to be inflicted by an object because it left a patterned bruise. Todd was still staying with defendant at the time of this second incident. According to defendant, after this later incident, "they gave him back to his grandmother, D.W."
T.F. became known to the Division on August 3, 2008, when she gave birth to a daughter who tested positive for cocaine. A Family Part judge approved the removal of the daughter from T.F.'s custody and her placement in a foster home.
On September 26, 2008, the Division received an anonymous phone call regarding drug activity in a boarded-up house located in Asbury Park. The Division conducted an investigation and found Todd living with his mother and other adults in the house, which was in disrepair and contained drug paraphernalia. The Division removed Todd from the house pursuant to N.J.S.A. 9:6-8.29 and placed him at St. Clare's, a special home service provider for medically fragile children.
On October 30, 2008, defendant began to visit Todd at St. Clare's under the supervision of the Division. As of December 2008, the Division's plan for Todd was reunification with defendant upon his successful completion of services and securing appropriate housing.
On January 27, 2009, the Division conducted a five-month enhanced case review. During the meeting, defendant stated that he did not believe Todd has autism. Additionally, he said he was looking for a place to live so that Todd could live with him. The caseworker provided defendant with paperwork to attend a parenting workshop about children with autism scheduled to begin March 2, 2009. At the end of the review, defendant advised the caseworker that he tested positive for cocaine during a recent parole drug screening. He claimed that he did not use cocaine, but said there could have been cocaine on the tip of a cigarette a friend gave to him.
On February 5, 2009, defendant again informed his caseworker that he tested positive for cocaine. This time defendant stated he may have tested positive due to being around people smoking crack. He informed the worker that "Project Free" was recommending that he attend a drug treatment program three days per week; however, he said he could not attend because it interfered with his employment.
On February 10, 2009, the police arrested defendant and charged him with defiant trespass and possession of crack cocaine and marijuana. The Division learned of the arrest through a YMCA visitation worker.
On February 27, 2009, defendant was arrested for violating his parole. Defendant's parole officer informed the Division that defendant violated his parole by not showing up to his weekly parole meetings and failing to notify parole of his February 10, 2009 arrest.
On March 12, 2009, the case worker visited defendant in jail and advised him that she would need to find another autism parenting workshop for him because defendant's incarceration prevented him from completing the workshop he had been attending. Defendant again said he could not attend drug counseling three days a week because it would interfere with his employment.
On March 23, 2009, defendant was released from jail. Two days later, the caseworker met with defendant and his new girlfriend, M.S., at Todd's school to discuss Todd's progress. Todd's teacher, speech therapist, the school principal, and a representative from St. Clare's attended the meeting. The caseworker informed defendant that Todd had been acting out, which she attributed to Todd missing him during his incarceration. Additionally, the caseworker informed defendant that she referred him for a substance abuse evaluation.
On March 26, 2009, defendant visited with Todd. After the visit, the caseworker informed him about an upcoming neurological appointment for Todd on April 13, 2009 and that she had found another autism parenting program starting on April 6, 2009. Defendant agreed to attend both. However, defendant failed to attend Todd's neurological appointment.
On April 2, 2009, defendant and M.S. visited with Todd. At the visit, M.S. advised the caseworker that she would like to help defendant take care of Todd. Defendant and M.S. attended an autism parenting class on April 6, 2009. On April 7, 2009, defendant appeared late for the substance abuse evaluation at the Division office. Due to defendant's late arrival, the case worker had to reschedule the evaluation for April 16, 2009; however, defendant failed to appear on the rescheduled date.
On April 23 and 29, 2009, defendant failed to attend scheduled visits with Todd. On April 28, 2009, defendant refused to produce a urine screening.
On May 13, 2009, defendant spoke with the caseworker and informed her that he did not attend the final autism parenting class "because he didn't have a ride." On May 14, 2009, defendant and M.S. visited with Todd. On May 20, 2009, defendant failed to attend a meeting at Todd's school to discuss his individualized education plan (IEP), and later explained he "forgot." Defendant also advised the caseworker he was using cocaine. On May 21, 2009, defendant failed to attend a scheduled visit with Todd.
On June 2, 2009, defendant failed to attend his intake appointment for an intensive out-patient drug treatment program. On June 17, 2009, defendant and M.S. visited Todd. On June 19, 2009, defendant spoke with the caseworker and informed her that he was now living with his aunt, "who wanted to take care of Todd." He stated he no longer lived with M.S. because they broke up. Defendant's aunt informed the caseworker that she wanted Todd to come live with her.
On July 16, 2009, defendant failed to attend a visit with Todd. On July 20, 2009, the caseworker spoke with a nurse at St. Clare's, who informed her that Todd has been acting inappropriately. They also discussed the Division's efforts to find a foster home for Todd. On July 24, 2009, defendant and M.S. visited with Todd.
On July 28, 2009, the caseworker spoke with defendant and informed him that Todd cannot live with his aunt due to her criminal history and history with the Division. In light of this development, defendant told the caseworker he would move back in with M.S. The caseworker also advised defendant that Todd could not continue at St. Clare's due to his behavior. On August 4, 2009, a Division nurse indicated that Todd was still considered "medically fragile."
On September 17, 2009, the caseworker visited defendant, who was now living again with M.S. The worker spoke with M.S., who informed her that she was in school and attempting to get a nursing degree. Additionally, she said she loves Todd and wants to take care of him. She indicated she would take care of him even if defendant went to prison for his pending charges. Defendant admitted to the case worker that his attendance at his drug treatment program had been inconsistent.
On October 13, 2009, Todd's YMCA visitation worker informed the Division that defendant did not attend four scheduled visits and that when he did show up, he showed up late. As a result, the YMCA visitation worker discontinued defendant's visitation services. On October 23, 2009, the Division learned of defendant's arrest in May 2009 for possession of a controlled dangerous substance and possession of a weapon for an unlawful purpose, as well as his arrest in September 2009 for robbery.
On November 5, 2009, the Division informed St. Clare's that they found a placement for Todd and would pick him up the next day. On November 6, 2009, the Division placed Todd in a foster home under the care and supervision of "Mrs. T." At the time, Mrs. T. was seventy-three years old. She had experience working with autistic children as she previously served as a guardian for another autistic child under the Kinship Legal Guardianship (KLG) statute, N.J.S.A. 3B:12-1 to -7. The child lived with Mrs. T. until he was fourteen or fifteen years old. At that point, Mrs. T. found that she could no longer control him and he was removed from her care.
On November 19, 2009, the Division received a letter from the Division of Developmental Disabilities (DDD) confirming Todd's eligibility for DDD services.
In January 2010, defendant missed several appointments with his caseworker. On January 28, 2008 defendant went to the Division office for a review conference. Defendant informed the caseworker he had broken up with M.S. and that she no longer had an interest in caring for Todd. Defendant said he wanted to see Todd and the worker explained his visitation had been terminated. Notwithstanding defendant's history of inconsistent visitation, the case worker succeeded in reinstating defendant's visitation through the YMCA.
On March 30, 2010, the court held a compliance review hearing and defendant failed to appear. On April 10, 2010, defendant and his parents visited with Todd. On April 12, 2010, the court held another compliance review hearing. Again, defendant failed to appear.
On May 6, 2010, the Division filed an amended complaint for guardianship, wherein it sought to terminate the parental rights of defendant and T.F. to Todd. The Division had previously filed a guardianship complaint to terminate the parental rights to the daughter T.F. delivered in August 2008.
On June 7, 2010, defendant failed to attend psychological and bonding evaluations arranged by the Division. On June 10, 2010, the YMCA again suspended visits between defendant and Todd because of non-attendance. On the same day, M.S. advised the Division she could not care for Todd. Accordingly, the Division eliminated her as a placement resource.
During July 2010, the Division made numerous attempts to contact defendant, without success. On October 23, 2010, defendant was incarcerated.
In February 2011, defendant proposed his stepmother as a possible placement for Todd; however, the Division ruled her out because she had a history with the Division. Defendant also recommended his brother, but the Division was unable to contact him.
At trial, defendant testified he anticipated serving at least another seven years in prison. Defendant further related that he has four other children: three daughters (eleven years old, two years old, and ten months old) and a son (four months old). By the time the trial concluded, Todd had been living with Mrs. T. for approximately two years.
The trial court issued an oral decision, in which it concluded that the Division had presented clear and convincing evidence establishing all four of the criteria for termination of parental rights under N.J.S.A. 30:4C-15.1(a). The court entered a judgment dated October 31, 2011, memorializing its decision. This appeal followed.
On appeal, T.P. presents the following arguments:
THE TRIAL COURT ERRED BY CONCLUDING THE BEST INTERESTS OF THE CHILD WOULD BE SERVED BY TERMINATING T.P.'S PARENTAL RIGHTS.
I. TERMINATION OF T.P.'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.
A. DYFS FAILED TO PRODUCE ANY EVIDENCE TO SATISFY ITS BURDEN OF PROVING THAT TERMINATION OF T.P.'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.
B. THE CHILD AND T.P. SHARE A BOND. C. DYFS HAD NO ADOPTIVE FAMILY FOR THE CHILD AND WAS NOT LIKELY TO FIND ONE.
II. DYFS AND THE TRIAL COURT FAILED TO CONSIDER KLG AS AN ALTERNATIVE TO TERMINATION OF PARENTAL RIGHTS.
A. THE EVIDENCE AT TRIAL DEMONSTRATED THAT KLG WAS IN THE CHILD'S BEST INTERESTS.
B. THE TRIAL COURT FAILED TO ADEQUATELY CONSIDER KLG BECAUSE IT LACKED THE EVIDENCE TO DO SO AND MADE ERRONEOUS FINDINGS.
After reviewing the record and applying the appropriate standard of review, we discern no reason to disturb the Family Part's decision, as the record contains substantial and credible evidence that amply supports it.
Our scope of review in a termination of parental rights case is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Our Supreme Court recently confirmed this standard:
Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family. . . . We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision to terminate parental rights. [N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012) (internal quotation marks and citations omitted).]
Under N.J.S.A. 30:4C-15.1(a), the Division can initiate a petition to terminate parental rights on the grounds of the "best interests of the child" if the following standards are met:
(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.
"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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
Termination of parental rights permanently cuts off the relationship between children and their biological parents. 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. The burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child. [In re Guardianship of J.C., 129 N.J. 1, 10 (1992) (internal citations omitted).]
Our Supreme Court has recognized, however, that children have a "paramount need. . . for permanent and defined parent-child relationships." Id. at 26. There are "strong policy considerations that underscore the need to secure permanency and stability for the child without undue delay." In re Guardianship of DMH, 161 N.J. 365, 385 (1999).
Defendant does not challenge the court's finding on prongs one and two. We note, however, that the record clearly and convincingly established that Todd's health and development had been harmed by his relationship with defendant due to his persistent drug use, criminal conduct, repeated incarcerations and failure to provide a safe and stable home. The record also clearly and convincingly established defendant is unable or unwilling to eliminate the harm to Todd. It is expected that defendant will be incarcerated for a long time and will be unable to provide Todd a safe and stable home at any time, let alone the foreseeable future. Defendant nevertheless argues the Division failed to present clear and convincing evidence on the two remaining prongs of the best interests test.
A. The third prong of the best interests test.
Defendant argues the trial court erred in its analysis of the third prong of the best interests standard because it did not consider the alternative of KLG. We do not agree.
A kinship legal guardian is "a caregiver who is willing to assume care of a child due to parental incapacity, with the intent to raise the child to adulthood." N.J.S.A. 3B:12A-2.
The plain language of the [KLG] Act, as well as its legislative history, establish kinship legal guardianship as a more permanent option than foster care when adoption "is neither feasible nor likely" and "kinship legal guardianship is in the child's best interest." Conversely, when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights[.] [N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512-13 (2004) (internal citations omitted).]
The trial judge did not err in determining KLG was not an appropriate option for Todd. At the time of trial, Mrs. T. was seventy-five years old. She indicated she was not interested in adopting Todd. While Mrs. T. did indicate interest in a possible KLG arrangement, the court appropriately took note of Mrs. T.'s age and the fact that her KLG arrangement with another autistic child ended when the child turned fourteen or fifteen years old, and she could no longer control him.*fn3 The trial judge gave careful consideration to the KLG option. He heard testimony from Mrs. T.'s granddaughter, S.S., who explained that she has been assisting her grandmother with Todd's care. The Division approached her about the possibility of her serving as a co-guardian with her grandmother, but S.S. declined the request. She explained that she is only twenty-three years old, and simply is unable to make the commitment to care for Todd beyond her grandmother's life. She said she plans to continue to assist with Todd's care in the future, but only while Todd remains in her grandmother's care.
We do not accept defendant's argument that the Division is not likely to find an adoptive family for Todd. The fact that the Division may have difficulty finding a family to adopt Todd does not mean he will not be adopted. At trial, Charles Crudup, an adoption case manager for the Division, testified that "the chance of finding [Todd] an adoptive home [is] a lot greater" once parental rights are terminated. He explained that, at that point, the Division can expand its search for an adoptive family from just New Jersey to all fifty states.
The judge reasonably concluded that the likelihood of the Division finding an adoptive family for Todd would be considerably enhanced if the parental rights of both parents were already terminated. The best course for Todd is to make it easy as possible for a willing family to adopt him. Furthermore, the potential availability of KLG cannot be used as a defense to the termination of parental rights when adoption is still a viable option. P.P., supra, 180 N.J. at 512-13.
For Todd, the prospect of KLG represented a short-term solution to a long-term problem. Because of Todd's special needs, he has no reasonable prospect of independent living. Therefore, as the trial judge aptly noted, what Todd needs are adoptive parents who will understand "that the commitment for Todd is not just until he's eighteen. The commitment for Todd is for life, his entire life."
In addition to consideration of alternatives to termination of parental rights, the third prong of the statutory test "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354.
Defendant does not contend that the Division failed to make reasonable efforts to address the reasons for Todd's removal from the home. We note that the record shows that the Division provided an array of services and defendant failed to take advantage of these services.
B. The fourth prong of the best interests test.
Defendant argues the Division failed to meet its burden to prove terminating defendant's parental rights will not do more harm than good. Specifically, defendant claims: (1) he and Todd share a bond; and (2) the Division had no adoptive family at the time of trial and was not likely to find one. We do not agree.
Prong four "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent. It has been "suggested that [a] decision to terminate parental rights should not simply extinguish an unsuccessful parent-child relationship without making provision for . . . a more promising relationship . . . [in] the child's future." A.W., supra, 103 N.J. at 610 (alterations in original) (quotation marks omitted). It also is widely understood that a "child deeply needs association with a nurturing adult" and that "permanence in itself is an important part of that nurture." Ibid.
"Inherent in the fourth factor is that a child has a 'paramount need for a permanent and defined parent-child relationship' . . . as well as a deep need for a nurturing adult, commonly termed the 'psychological parent.'" N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 119 (App. Div.) (quoting J.C., supra, 129 N.J. at 26), certif. denied, 180 N.J. 456 (2004)).
Defendant argues that the Division's proofs were inadequate to support termination of parental rights because of the absence of expert testimony comparing the bond of defendant with Todd and the bond of Mrs. T. with Todd.*fn4 This argument completely lacks merit. The record contains no expert testimony on defendant's bond with Todd because he failed to attend the bonding evaluations the Division scheduled for him. The Division scheduled a bonding evaluation for defendant on June 7, 2010, and informed him about it both by letter and in court, but he failed to attend. The Division attempted to reschedule, but could not inform defendant of the new date due to his failure to provide updated contact information.
Defendant failed to present evidence to show that ending his bond with Todd will cause more harm than good. While the record indicates that defendant interacted well with Todd when he did visit, defendant's visits were not consistent. He often missed scheduled visits and was late to many of the visits he did attend. Defendant has also been absent for most of Todd's life. When Todd was born, defendant was in jail. He has been in and out of jail since then, and was in jail at the time of the trial. He remains in jail, and will be there well into the future.
The record indicates, as the trial court concluded, that both T.F. and defendant "checked out" as parents for Todd and adoption represents Todd's best chance for a permanent home. Defendant was an unreliable parent for Todd, despite the Division's extensive services and reasonable efforts to achieve reunification. Unfortunately, defendant proved he cannot be responsible for himself, let alone a child with autism. Although there were no prospective adoptive parents for Todd at the time of trial, termination of defendant's parental rights presents Todd's best chance at finding a permanent home.
Because Mrs. T. is willing to continue to care for Todd, the judge pointed out that Todd "will have, in fact, the best of both worlds. If somebody comes along [to adopt him], that will be great. If somebody does not, he will be where he is," with KLG remaining as an option in the future.
The evidence established clearly and convincingly that despite the absence of comparative bonding evaluations, the termination of defendant's parental rights to Todd will not cause him more harm than good and is in his best interests.