July 22, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
R.S., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF B.R.S., L.I.J.B., and J.A.I., Minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-131-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Winnie E. Ihemaguba, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eric Meehan, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor respondents (Margo E.K. Hirsch, Designated Counsel, on the brief).
Before Judges Alvarez and St. John.
R.S., the father of B.R.S., whom we will refer to as Bobby to preserve anonymity and for ease of reference, born in October 2004, and L.I.J.B., whom we will refer to as Larry, born in November 2009, appeals the May 11, 2012 termination of his parental rights. For the reasons that follow, we affirm.
We briefly summarize the procedural history in the matter as relevant to the issues decided on appeal. The children were born to R.S. and J.I., his wife, who does not appeal the judgment terminating her parental rights. The Division of Youth and Family Services (the Division) became involved with the family in 2003 when J.I. gave birth to a child who tested positive for marijuana. In September 2006, R.S.'s parental rights were terminated as to that child. Bobby was born while that action was pending. Another child, also born while those proceedings were pending, was adopted through a private agency.
The Division maintained an open file from 2006 to 2008 in order to provide services to the family. As a result of multiple referrals, on January 19, 2009, the Division removed Bobby on an emergent basis, N.J.S.A. 9:6-8.29, and filed a Title 9 complaint to gain custody of Bobby and the other children, who are not a part of this case, then living with J.I. On November 6, 2009, when Larry was born, the Division attempted but was unable to locate the mother and child. Eventually, on March 25, 2010, the Division accomplished a second Dodd removal, this time of Larry, and the pending abuse and neglect complaint was amended to include him. R.S. was absent throughout the abuse and neglect litigation — he could not be located, was not served, and did not appear. At a permanency hearing conducted on January 13, 2010, the court approved the Division's plan for termination of parental rights followed by adoption as to Bobby. Thereafter, the Division filed a guardianship proceeding naming Bobby together with another child of J.I. that was not R.S.'s child. On October 15, 2010, Larry was added to the guardianship litigation.
R.S. was eventually located and served in April 2010, and counsel appeared on his behalf on thirteen separate court dates from May 6, 2010, through October 11, 2011. R.S. appeared at only three of those hearings, on June 24, 2010, August 12, 2010, and September 16, 2010. Trial was conducted on three days in November 2011 and January 2012. The Division was granted guardianship of Bobby and Larry and this appeal followed.
J.I.'s lengthy history with the Division began shortly before the death in 1997 of one of her children, as a result of which she served a prison sentence for second-degree endangering the welfare of children, N.J.S.A. 2C:24-4(a).
R.S.'s involvement with the Division commenced in 2003, with the birth of the child born under the influence of marijuana. Starting in that year and continuing into 2006, the Division attempted to engage R.S. in services, including substance abuse treatment. R.S. was also referred to psychological evaluations, individual counseling, couples counseling, and parenting classes. He was offered supervised visits for Bobby, but refused them because the visits could not take place at his mother's house. It was during this time that his parental rights to a third child were terminated.
In 2006 and 2008, the Division received referrals regarding R.S., which were determined to be unfounded. Problems continued with J.I.'s other children, however, and ultimately when the Division investigated a referral on January 19, 2009, it discovered that the family, including Bobby, was living in an apartment without electricity or food, triggering the Dodd removal. The order to show cause and verified complaint for abuse and neglect which followed named all of J.I.'s then living children, including Bobby. It was this litigation in which R.S. did not participate.
When Larry was born, he tested positive for THC and was placed on a "social hold" at the hospital. Despite this, J.I. left with Larry and disappeared. Larry was finally located on March 25, 2010, living with an older sister who was in a foster home placement. The Division removed him and placed him in a resource family. Larry was then added to the pending guardianship action.
By the time the complaint was filed on February 22, 2010, R.S. had not visited Bobby since his removal on January 19, 2009. Although R.S. was not sure he was Larry's father, he failed to appear for the paternity test he requested. R.S. has not seen Larry since his removal nor has he requested visits with him. Since being located in April 2010, R.S. was again offered multiple services and failed to engage with any of them. He was offered supervised visitation, psychological and bonding evaluations, parenting skills classes, and drug treatment.
R.S. explained his refusal to see Bobby at the Division offices this way: "you got to come to my house with my son so I can see them. I'm not going to catch the bus or [to] go other places to see my son." When visitation between R.S. and Bobby was suspended because of his failure to appear, it was understood that if he complied with services and Bobby's therapist agreed as to the appropriateness of the visits, they could be resumed. R.S. never made such a request.
R.S. contends that Bobby had no problems prior to his removal in January 2009, while J.I. claimed she took the child to see a psychiatrist who said that he was normal. Nonetheless, Bobby has displayed significant behavioral problems that resulted in seven placements by the time he was seven years old. In addition to behavioral issues that have resulted in his removal from foster homes, Bobby has made statements regarding sexual activity with one of his brothers which requires the children to be kept apart. Ultimately, on October 14, 2009, Bobby was admitted to the UMDNJ Children's Transitional Residence in Piscataway where he remained until he was able to move into a treatment home in Newark. He remained there until July 2011, when he was moved to a resource family treatment home in Somerset.
Larry has been in placement since March 2010, when he was four months old. Except for one week, he has lived with his current resource family, who wishes to adopt him.
J.I. never provided the names of relatives for Larry and was also uncertain if R.S. was the father. Sibling visitation was arranged for Bobby and Larry beginning in March 2010, and has continued.
At a June 24, 2010 case management hearing, R.S. advised the court that he was living at an address that was an abandoned home. As a result of giving that address, the Division could not reach him by mail or by phone. At that hearing, R.S. also provided information regarding his sister and mother as possible caregivers. However, his sister has never cooperated and has withdrawn herself from consideration as a resource home. R.S.'s mother's home could not be approved for visitation because there were adults living there who refused to undergo mandatory background checks.
R.S. raises the following issues for our consideration on appeal:
TRIAL COURT ERRED IN FINDING THAT THE DIVISION OF YOUTH AND FAMILY SERVICES PROVED THE "BEST INTEREST OF THE CHILD STANDARD" BY CLEAR AND CONVINCING EVIDENCE BECAUSE THE TRIAL COURT'S FINDING IS UNSUPPORTED BY THE EVIDENCE PRESENTED BY THE DIVISION.
A. THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE HEALTH AND DEVELOPMENT OF B.R.S. AND L.I.J.B. HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY THEIR RELATIONSHIP WITH THEIR FATHER, R.S.
B. THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT R.S. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HIS CHILDREN, AND THAT A DELAY IN PERMANENT PLACEMENT WILL ADD TO THE HARM.
C. THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP R.S. CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILDREN'S PLACEMENT OUTSIDE THE HOME.
D. THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION WILL NOT DO MORE HARM THAN GOOD.
The scope of appellate review of an award of guardianship is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "The factual findings which undergird a judgment in such a case should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice, ' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J.Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the . . . court's credibility determination[s] and the judge's 'feel of the case' based upon his . . . opportunity to see and hear the witnesses[, ]" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J.Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007), which "can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (stating deference is afforded to a trial court's findings of fact as the trial court "has the opportunity to make first-hand credibility judgments about the witnesses" who testify).
It is also necessary to recognize the special expertise of those judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13. Nonetheless,
where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded. Still, even in those circumstances we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made.
[N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations and citations omitted).]
When reviewing a Family Part order terminating parental rights, the reviewing court should consider that "[a] parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Parents have a fundamental liberty interest in raising their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599, 606 (1982). Both the federal and state Constitutions protect the inviolability of the family unit. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599; see also J.N.H., supra, 172 N.J. at 471 (holding parental rights are not absolute). "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." K.H.O., supra, 161 N.J. at 347.
While recognizing the fundamental nature of parental rights and the need to preserve and strengthen family life, the Legislature has also recognized "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit[.]" N.J.S.A. 30:4C-1(a). This responsibility, in some cases, requires that the parent-child relationship be severed. A.W., supra, 103 N.J. at 599.
"The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. The best interest standard, initially formulated by the Court in A.W., supra, 103 N.J. at 602-11, was codified in N.J.S.A. 30:4C-15.1(a), and requires the State to establish each of the following by clear and convincing evidence before parental rights may be severed:
(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.
These four requirements "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." K.H.O., supra, 161 N.J. at 348. The considerations involved are "'extremely fact sensitive' and require particularized evidence that addresses the specific circumstances of each case." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.Super. 235, 258-59 (App. Div. 2005) (quoting K.H.O., supra, 161 N.J. at 348).
R.S. contends that the Division has not established by clear and convincing evidence that the health and development of Bobby and Larry has been, or will continue to be, endangered by their relationship with their father. He premises the claim on the fact that he was not served until after the guardianship proceeding had begun, the assertion that the Division did not adequately provide for him to visit with the children and suspended his visits based on the recommendation of a therapist, and that Larry was removed in the absence of any finding that such a removal was necessary. Since no fact-finding was made against him that he caused harm to either child, it is his position that no finding can be made in support of termination of his parental rights.
The court, well aware of the relevant standard as to the first prong of the statutory test stated:
[R.S.] has never provided care for his two sons, [Bobby and Larry] nor has he provided them with a safe environment or the nurture they deserve. Both [J.I.] and [R.S.] have abandoned their boys.
[R.S.] did not appear in court during the protective services litigation and only sporadically during the guardianship matter. By his own admission, he did not believe in engaging in the services he had been referred to by the Division.
[R.S.] has had almost no contact with either of his sons throughout this litigation. At one point, he refused to visit with [Bobby] because he did not want to go to the DYFS offices, instead demanding that the Division bring the child to him. [R.S.] has questioned his paternity of [Larry] but failed to attend a scheduled paternity test. He has made no efforts to eliminate the risk of harm facing his children.
Throughout the pendency of this litigation, the boys have languished in foster care, while their parents have failed to make even minimal efforts at remediating their parenting deficiencies and have seemingly avoided contact with the children.
Accordingly, the court is firmly convinced and finds that the Division has met its burden under the first factor with respect to the defendants in this case. All of the defendants have placed their children in a situation which has exposed them to a substantial risk of harm. The Division has clearly and convincingly met their burden with respect to Prong One.
R.S. was absent for years of Bobby's life and had no contact at all with Larry. His reason for not visiting Bobby at the Division office is nonsensical. We are satisfied that R.S.'s conduct jeopardizes the children's health and welfare even if the only harm he has caused the children to date is his inexplicable failure to even attempt to maintain contact with them, a choice he made. "[I]njury to children need not be physical to give rise to State termination of biological parent-child relationships. Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). Moreover, "[t]o satisfy this prong, [the Division] does not have to wait until a child is actually irreparably impaired by parental inattention or neglect." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (internal quotation omitted).
The trial judge's conclusion, that the children's safety, health, or development has been or will continue to be endangered by their relationship with R.S. was not "so wholly unsupportable as to result in a denial of justice." J.T., supra, 269 N.J.Super. at 188 (internal quotation omitted).
R.S.'s absolute failure to participate in any services establishes his lack of interest in correcting those conditions which jeopardize the health and development of his children. His conduct has harmed his children, and will continue to do so. See K.H.O., supra, 161 N.J. at 352.
Bobby's long history of behavioral problems requiring psychological and psychiatric intervention make him particularly vulnerable. Larry has no relationship whatsoever with R.S.
The Division need not wait any further. See F.M., supra, 211 N.J. at 449. That R.S. could not be located in the initial phase of the guardianship is irrelevant. There was adequate, substantial, and credible evidence from which the trial judge properly concluded that the Division had established the first prong of the best interest test by clear and convincing evidence.
R.S. also claims the Division failed to prove that he is unwilling or unable to eliminate the harm facing his children and that delay in permanent placement will add to that harm. The focus of the second prong of the statutory test is "whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348. Alternatively, the State may show "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49. "The question is whether the parent can become fit in time to meet the needs of the child." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J.Super. 228, 244 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011).
With regard to the second prong, the trial judge said:
In the instant case, [J.I.] and [R.S.] have never availed themselves [of] the services offered by the Division. . . . [R.S.] was also missing for extended periods of time throughout the litigation. The record reflects that nearly a decade ago services were offered to the parents, without any positive results. As an example, substance abuse evaluations were offered to [R.S.] as far back as November 2003 however he did not take advantage of that service. [R.S.] further refused to comply with court ordered drug screens. Despite the numerous services offered to the parents, the parents have continued to remain unwilling to engage in these services, leaving their multitude of issues unresolved and untreated.
The trial judge's conclusions are supported by adequate, substantial, and credible evidence. R.S.'s statements reflect a complete indifference to his children's most basic needs — such as housing — as well as a complete rejection of the notion that any substance abuse or other problems that he may have require treatment in order to offer his children a safe and secure home. In the absence of even minimal expressions of any motivation to change, to participate in services, or to take any steps to modify his lifestyle for the benefit of his children, it is clear that the Division has met its standard of proof with regard to the second prong of the statutory test.
The record establishes that over a number of years R.S. refused to make himself available to the Division for even the most minimal contact, including visitation. We therefore consider the challenge to the Division's efforts to provide services to him to be so lacking in merit as not to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).
R.S. also maintains that the Division did not adequately explore his paternal grandmother and a maternal relative as placement resources. To the contrary, the Division did investigate the relatives R.S. put forward, but found them unacceptable due to one's lack of interest and the other's inability to meet minimal requirements.
Finally, R.S. contends that the trial court erred in terminating his parental rights because no expert bonding testimony was provided, and there are unique difficulties in obtaining a select home adoption placement for Bobby. Additionally, R.S. contends that Bobby in particular will suffer great harm because he has expressed a desire to be reunited with his father, and there is no evidence that he would not be able to successfully parent the child.
The issue of whether "[t]ermination of parental rights will not do more harm than good[, ]" N.J.S.A. 30:4C-15.1a(4), often poses the most difficult and delicate question. K.H.O., supra, 161 N.J. at 355. Under this prong, we ask "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." Ibid. "[W]here it is shown that the bond with the foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1a(4)[.]" Id. at 363. The overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. If a child can be returned to the parental home without endangering the child's health and safety, the parent's right to reunification takes precedence over any permanency plan. Ibid.; A.W., supra, 103 N.J. at 607-09. The mere existence of a bond with the foster parent alone does not justify the termination of parental rights. K.L.F., supra, 129 N.J. at 44-45; F.M., supra, 375 N.J.Super. at 263-64.
In the more typical situation, the State should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with the natural and foster parents. In re Guardianship of J.C., 129 N.J. 1, 19 (1992). However, where termination of parental rights is based on parental unfitness, the focus shifts from bonding to the child's need for permanency and the biological parents' inability to care for him in the foreseeable future. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J.Super. 582, 593 (1996).
As to Larry, he has been in a foster home which wishes to adopt, and he has had no contact whatsoever with his father. There are situations in which no expert is necessary to reach the obvious conclusion that the child would be more closely bonded with his foster parents. See N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 182 (2010). In this case, Larry has lived with his foster family almost his entire life. R.S. never requested visits with him and failed to confirm his paternity. No expert testimony is necessary to demonstrate the lack of bond between Larry and R.S.
With regard to Bobby, the trial judge found R.S. incapable of parenting him. Bobby has unique needs for permanency and behavioral problems that cannot be addressed by a parent who refuses to accept services for himself, does not have stable housing, has difficulty in understanding the child's issues, and does not appear to be interested in working cooperatively with the Division in any respect.
The Division attempted to complete bonding evaluations between R.S. and Bobby but R.S. failed to attend scheduled appointments on May 18, 2010, and October 21, 2010. Any failure to complete bonding evaluations is attributable to R.S.'s inability to follow through on the steps necessary to preserve his parental rights, not any failure of the Division.
Clearly, select home adoption is not ideal, and a long time can pass before a suitable adoptive family is located. The caseworker responsible for the adoption did testify, as R.S. points out, that she has one child who has been waiting six years for adoption, but that child was the exception because he had a disrupted adoption that caused the delay. The worker's next oldest case was only a year to a year and a-half old. In the interim, despite his stated connection to the child, R.S. made no effort to see his son, obtain stable housing, or do anything at all in order to advance reunification. In this case, despite the absence of expert testimony, sufficient credible evidence in the record supported the determination that the termination of parental rights would not do more harm than good.