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New Jersey Division of Child Protection & Permanency v. R.N.

Superior Court of New Jersey, Appellate Division

September 27, 2013

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
v.
R.N., Defendant-Appellant IN THE MATTER OF THE GUARDIANSHIP OF H.R., a minor

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 18, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FG-01-20-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Adrienne Kalosieh, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Cassandra E. Rhodes, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor H.R. (Caitlin McLaughlin, Designated Counsel, on the brief).

Before Judges Lihotz, Maven and Hoffman.

PER CURIAM

Defendant R.N., the biological father of H.R., challenges a September 28, 2012 Family Part order terminating his parental rights and granting guardianship to the Division of Child Protection and Permanency (the Division)[1] to secure the child's adoption. On appeal, defendant argues the evidence was insufficient to satisfy the statutory requirements of N.J.S.A. 30:4C-15.1a. We affirm.

I.

H.R. was born in 2005. The Division became involved with the family, when M.R., his mother, presented then two-year-old H.R. to AtlantiCare Regional Medical Center (ARMC) for treatment. At that time, M.R. was residing with her paramour J.G., the biological father of H.R.'s younger sister.[2] H.R. had sustained a "blow out fracture to the right maxillary sinus [(eye)] caused by trauma, " bruising on his shoulder and thigh, and a lump on his head. Following a same-day investigation, the Division determined H.R.'s injuries resulted from an assault by J.G. and both M.R. and J.G. abused drugs. The Division effectuated an emergency removal of H.R. and his sister.[3] On October 10, 2007, the Division petitioned for and was granted care, custody and supervision of H.R.

When discharged from the hospital, H.R. was placed with a resource family. Thereafter, H.R.'s maternal grandfather E.R. was evaluated as a placement resource. Although defendant was not initially named in the complaint, within two weeks of H.R.'s removal, the Division contacted him and later added him to the litigation. Defendant explained he had been incarcerated since February 5, 2005, following convictions for the manufacture and possession of cocaine with intent to distribute, resisting arrest and conspiracy to commit theft. He admitted he had never met H.R. and requested a paternity test. Defendant also suggested the Division contact his mother P.T., if the test proved H.R. was his son. On December 18, 2007, defendant attended a court hearing, where he was ordered to undergo psychological and substance abuse evaluations and comply with any recommended treatment. Further, he was granted weekly supervised visitation upon his release from prison. Later that month, the Division placed H.R. with E.R.

H.R. and his siblings remained in E.R.'s care until April 22, 2008, when the Division executed an emergency removal after discovering E.R. violated a court order by leaving the children alone in M.R.'s care. H.R. returned to his resource family. The Division permitted E.R.'s resumption of care for H.R. and his siblings, anticipating execution of a kinship legal guardianship plan.

Defendant was released from custody on April 16, 2008 and the Division immediately referred him to the Center for Family Services (CFS) for substance abuse evaluation, and to John Quintana, Ph.D., for a psychological evaluation. A series of orders granted defendant weekly supervised visitation in the Division's office or as arranged with and supervised by E.R. Defendant did not schedule visits through the Division; visitation occurred approximately every other week at E.R.'s home.

Defendant missed scheduled substance abuse evaluations, three scheduled psychological evaluations and at least one scheduled visitation. He also failed to attend several court hearings. After a May 5, 2008 preliminary substance abuse evaluation, defendant was directed to participate in an extended rehabilitation assessment. He failed to do so and the program terminated him for non-compliance.

On August 22, 2008, defendant was arrested for unlawful possession of a weapon and returned to prison. He was released in October 2008, but his subsequent attendance at court hearings was inconsistent. He attended the court hearing that month, missed the next scheduled hearing held in December 2008, but attended the February 2009 hearing. That same month, defendant was again imprisoned. He was released on May 7, 2009 and the Division resumed services to effectuate his reunification with H.R. On July 6, 2009, defendant attended a substance abuse evaluation. Based on the results, it was recommended he attend Level I Outpatient Treatment, monitored by SODAT. Defendant declined to comply. He attended a visit with H.R. in July 2009, then missed eight visits and CFS terminated him for non-attendance. Defendant committed another non-violent criminal offense and was placed in custody on September 22, 2009.

Because E.R. was unable to properly provide for their needs, he voluntarily requested the children return to the resource family on April 28, 2009. E.R. said he considered the children's placement with the resource family as if they were with "family friends." Thereafter, H.R. and his siblings continuously remained in the resource family's care.

The Division investigated H.R.'s possible paternal relatives for placement. At defendant's urging, P.T. was assessed. She revealed that the Division had filed a Title 9 action against her, which ultimately resulted in the removal of her children because of substance abuse. The Division also learned P.T.'s son, who resided in her home, had a criminal history. Given these facts, the Division rejected P.T. as a possible placement for H.R. and issued a "rule-out letter" on May 11, 2009. When defendant renewed his request for P.T. to be considered as an alternative placement, a subsequent review occurred. She was again ruled out, and notified by the Division on July 8, 2011.

The Division considered A.R., a maternal aunt, who had assisted E.R. in caring for H.R., but then ruled her out as a placement "because she had violated a prior custody order" by permitting H.R. to be left alone with his mother. The Division also considered P.Q., a maternal great aunt who lived in Pennsylvania, but on January 16, 2009 she was ruled out as a placement option for H.R.'s sister, because "[s]he didn't want to be considered." No other family member expressed interest as a potential placement option.

Defendant was released from jail in November 2009, but on December 12, 2009, he was charged with simple assault, resisting arrest, eluding a police officer, distribution of CDS, distribution and possession of CDS in a school zone, and manufacture, possession, and distribution of cocaine weighing over five ounces. He pleaded guilty to second-degree manufacturing, distribution, and dispensing cocaine, N.J.S.A. 2C:35-5A(1), -5B(2), and was sentenced to a seven-year prison term, subject to a three-year period of parole ineligibility, prohibiting his possible release before October 2013.

The Division decided to file a complaint seeking guardianship. At the time, defendant was incarcerated, and M.R. had already voluntarily surrendered her parental rights to these children, including H.R.

The six-day guardianship trial was conducted in the Family Part between September 19, 2011 and June 22, 2012. The Division offered testimonial evidence from its caseworker, Family Service Specialist II, Tamika McNair; H.R.'s resource mother, L.J.; and its expert, clinical psychologist Dr. Joanne Schroeder, Ph.D. Numerous documents were introduced into evidence. A writ for defendant's appearance allowed his trial participation. However, he did not testify, offer witnesses, or introduce other evidence.

In addition to recounting the history of the Division's involvement with the family, McNair described H.R.'s health and behavioral issues. She reported H.R. was anemic, may require speech therapy, and tended to be "very fearful of things[, ]" but had been getting better in recent months with his resource family's support and the services of Robin's Nest. McNair detailed H.R.'s comfortable relationship with his resource parents. She noted he relied on L.J. for comfort when he felt upset or picked on by his younger, more outgoing siblings. She also reported H.R. viewed his resource father as an authority figure. The Division had no concerns regarding H.R.'s interactions with either resource parent, or the other children in the home, including his two siblings.

McNair also recounted the Division's aid to defendant hoping to resolve his drug abuse and parenting deficits. She had no record showing he completed SODAT's or any other substance abuse treatment program. Defendant told her he completed an anger management course and was attending parenting classes; however, McNair could not secure substantiating documentation. She tried to obtain certificates of completion, but the phone numbers provided by defendant were disconnected. McNair had communicated with the Atlantic County Justice Facility prison program supervisor to acquire defendant's certificates of completion of prison programs, including masonry skills and relapse prevention, but received no responses to her inquiries. Defendant informed McNair when he completed parenting classes in February 2012. She admitted she made no attempt to confirm this assertion.

Since the time the court granted the Division custody, care and supervision of H.R., McNair asserted defendant failed to establish stable housing and continually moved from place to place. She also recounted the Division's records of defendant's visitation with H.R.

McNair discussed possible alternative relative placements. In 2009, when released from prison, defendant advised "he wanted to take care of [H.R.], but if not, then he wanted [H.R.] to go with his mother." However, the Division had already evaluated and rejected P.T. At trial, McNair seemed confused regarding the various efforts made, but generally her testimony stated the Division concluded, after all the time that had elapsed, H.R. should not be removed from his resource parents to attempt a placement with an unfamiliar, but related party.

L.J. in her testimony discussed her interaction with H.R. from his initial placement. She explained she and her family maintained a connection to H.R. and his siblings even when in his grandfather's care. At the time of trial, H.R. was six years old and completing the first grade. He and his two siblings, along with a fourth child adopted by the resource family, all resided as a family.

In L.J.'s opinion, of the three siblings, H.R. was most affected by the repeated disrupted placements, which began when he was two. New experiences frightened him; he developed problems with lying, anxiety, and bedwetting; and became extremely frightened of bugs. After his bonding evaluation with defendant, she reported he suffered a "meltdown" and cried inconsolably at school. She and her husband adopted H.R.'s sister and H.R. "want[ed] to know why she went before him." H.R. told her he thought if he did not do everything perfectly, the family would "give him away." L.J. Emphasized "[a]bsolutely" H.R. was a part of her family. He called her and her husband "mom" and "dad[, ]" and since starting family therapy H.R. began to overcome his fear of bugs and abandonment, his bedwetting, lying issues, and other anxieties.

L.J. asserted defendant had not visited H.R. since he was placed in her home. If permitted to adopt H.R., L.J. and her husband agreed to continue the child's relationships with E.R. and P.T., whom they regularly saw in church. However, she could not extend the same assurances regarding a relationship with defendant because she was concerned his involvement with "a drug lifestyle" would harm H.R. She did state, however, if defendant "was out and working as a mason" or in some other field, she would gladly include him in H.R.'s life, stating "the more people loving [H.R.] the better."

Dr. Schroeder, who was accepted as an expert in the field of clinical psychology, conducted a psychological evaluation of defendant on May 28, 2010 and a bonding evaluation on July 9, 2010. Addressing her psychological assessment of defendant, she stated he presented as "cooperative" and "quiet with a detached demeanor[.]" In her interview, she identified inconsistencies in defendant's self-report of past events, finding him "somewhat evasive about his legal history" and at times "coldly defens[ive][.]" For instance, he downplayed his history with the Division, asserting he visited H.R. continually while the child was in its care and never missed his court dates. Defendant also admitted he used marijuana consistently since 2009 and was arrested twice for drug offenses. Yet, he denied having a drug problem, and rejected the need for treatment.

Defendant's scores on objective psychological tests demonstrated he read at a sixth grade level. Although capable, Dr. Schroeder found defendant inappropriately completed the self-reporting portion, making the results "invalid" and unreliable. She stated:

he gave socially-desirable responses to the point that . . . it was likely that he was trying to make himself appear healthier than would actually be the case. . . . It's also likely that his other scores on the test were suppressed. So . . . [t]he test wasn't effective as a measure of the risk of physical child abuse because of the denial of any problems.

Based on her evaluation, Dr. Schroeder diagnosed defendant as suffering from antisocial personality disorder, which she opined would negatively impact his ability to parent, to attend to H.R.'s needs, to benefit from treatment, to maintain a stable lifestyle, and to be responsible for H.R.'s support. Dr. Schroeder explained "[a]nti-social personality is very difficult to treat and it's not usually successfully treated." She further concluded defendant's history of incarceration, failure to obtain substance abuse and mental health treatment, lack of housing, lack of financial means, and overall denial of his own need for treatment erected significant barriers to achieving safe parenting.

The trial judge also credited Dr. Schroeder's opinion on parental bonding. Dr. Schroeder performed the bonding evaluation in the jail while defendant was handcuffed and she recognized these circumstances made it "harder for him to parent[.]"

Dr. Schroeder observed some signs of attachment between H.R. and defendant. Father and son exchanged "a few smiles" and H.R.'s transportation aide stated H.R. said he wanted to see defendant. However, during the encounter, "[H.R.] was very subdued, didn't smile, did not approach [defendant], and stood quietly at the end of the table away from [defendant]." She found these behaviors consistent with the child's limited past interaction with defendant. Defendant was similarly unfamiliar with H.R., as evidenced by his unawareness that H.R. suffered from high cholesterol, a fear of needles and bugs, and required behavior modification. Based on her overall observations, Dr. Schroeder pronounced it "was not at all clear that [H.R.] was attached to [defendant]." However, if an attachment existed, "it was an insecure attachment[.]" In her opinion if placed with defendant, then later removed because of defendant's recidivism or other parenting deficits, H.R. would endure great harm.

Dr. Schroeder was further tasked with evaluating the bonds between H.R. and his resource family. She characterized this evaluation as "much different" than the one between H.R. and defendant. With his resource parents, H.R. was "much more active, much more confident, much more secure with the [resource] parents who he had been placed with for a long time at that point." She described H.R. as "socially confident" with his resource parents. "He explored the room. He was energetic . . . . He had no problems with the various separations from the care[]givers." She concluded H.R. was "securely attached" to his resource parents and was "secure in their care."

Assessing the severance of either of these bonds, Dr. Schroeder determined severing the ties between H.R. and defendant could cause "some harm, " but "the harm would not be serious" or enduring because his attachment to defendant was "not a secure attachment[.]" However, H.R.'s permanent separation from his resource parents would be "highly disrupti[ve]" and "highly detrimental, " as it would be "extremely difficult for [H.R.] to recover from a loss of his [resource] parents."

The trial judge issued a written opinion on September 25, 2012. After "observing the demeanor and assessing the credibility of the witnesses[, ]" presented by the Division she found "the testimony of all three witnesses was credible." She concluded the Division had met its burden of proving the elements of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. A September 28, 2012 judgment of guardianship terminating defendant's parental rights was filed and this appeal ensued.

II.

It is well settled that this court's review of the Family Part judge's factual findings and credibility determinations is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). See also Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) ("The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." (citations omitted)); N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.Super. 235, 259 (App. Div. 2005) ("When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." (citation omitted)). Particular deference is accorded "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, '" N.J. Div. of Youth & Family Servs. v. M.C. III , 201 N.J. 328, 343 (2010) (quoting Cesare, supra , 154 N.J. at 413), and because the trial judge "has the opportunity to make first-hand credibility judgments about witnesses who appear on the stand[.]" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). This "'feel of the case' . . . can never be realized by a review of the cold record." Ibid. (quoting M.M., supra, 189 N.J. at 293).

Reversal is warranted only when the trial judge's conclusions "went so wide of the mark that a mistake must have been made[, ]" M.M., supra , 189 N.J. at 279 (internal quotation marks and citations omitted), including instances in which the findings were "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J.Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). Consequently, when a reviewing court concludes there is satisfactory evidentiary support for the trial court's findings, "'its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal.'" Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). However, the trial judge's "interpretation of the law and the legal consequences that flow from established facts" are subject to our de novo review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

While constitutionally protected, parental rights are not absolute. In re Adoption of a Child by W.P. & M.P., 308 N.J.Super. 376, 382 (App. Div. l998) (citation omitted), vacated on other grounds, 163 N.J. 158 (2000). The government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 L.Ed.2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S.Ct. 1526, 1540, 32 L.Ed.2d 15, 33 (1972)). Accordingly, the State, as parens patriae, may sever the parent-child relationship when necessary to protect a child from serious physical and emotional injury. W.P. & M.P., supra , 308 N.J.Super. at 382.

When a child's biological parents resist termination of parental rights, the court's function is to decide whether the parents can raise the child without causing further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of this inquiry is whether parents can "cease causing their child harm" and become fit to assume the parental role within time to meet the child's needs. Ibid. "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid.

In a guardianship matter, a trial court's examination focuses upon what course serves the "best interests" of the child. In re Guardianship of K.H.O. , 161 N.J. 337, 343 (1999). Our Legislature requires satisfaction of the "best interests of the child" test, codified in N.J.S.A. 30:4C-15, by clear and convincing evidence before termination of parental rights can occur. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 612 (1986) ("The correct standard is 'clear and convincing' proof."). Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1a requires the Division to prove:

(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 that harm. Such harm may include evidence that separating the child from his foster 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 factors are neither discrete nor separate; rather, they "'relate to an overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" E.P., supra, 196 N.J. at 103 (quoting K.H.O., supra , 161 N.J. at 348). Whether the State has satisfied each prong by clear and convincing evidence is an "extremely fact sensitive" inquiry, which must be based on "particularized evidence that addresses the specific circumstances of the individual case." N.J. Div. of Youth and Family Servs. v. R.L. , 388 N.J.Super. 81, 88 (App. Div. 2006) (internal quotation marks and citations omitted).

III.

On appeal, defendant argues the judgment of guardianship must be reversed because the Division failed to substantiate any of the four statutory prongs by clear and convincing evidence and "a denial of justice has occurred[.]" We consider these arguments.

Challenging the findings supporting the first and second prongs, defendant maintains he never caused harm to H.R. or acted to endanger his health or development. Asserting his incarceration cannot be the basis of termination of parental rights, defendant states his inability to assume the child's care when first contacted by the Division was mitigated by offering potential relative care providers until he was released.

"The first two elements of the best interests of the child standard relate to the finding of harm arising out of the parental relationship." In re Guardianship D.M.H., 161 N.J. 365, 378 (1999). This requires dual showings that: (1) "[t]he child's health and development have been or will continue to be endangered by the parental relationship;" and (2) "[t]he 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." N.J.S.A. 30:4C-15.1a(1), (2).

[T]he second prong more directly focuses on conduct that equates with parental unfitness, [and] the two components of the harm requirement . . . are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child.
[D.M.H., supra, 161 N.J. at 379.]

Indeed, defendant did not participate in the 2008 physical abuse of H.R. that mandated his removal from parental care. Contrary to defendant's suggestion, however, harm, as addressed by the statute, is not limited to physical abuse. "Serious and lasting emotional or psychological harm to the 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). The failure of a parent to provide a "permanent, safe, and stable home" engenders the type of significant harm to a child addressed in the statute. D.M.H., supra, 161 N.J. at 383. Such is the case here.

The record is replete with H.R.'s emotional difficulties and fears caused by abandonment anxiety. The child's daily life is affected by his fear of again being rejected and taken from what he views as his home. K.L.F., supra , 129 N.J. at 44. Dr. Schroeder capsulized H.R.'s situation in this way:

[A] child needs stability. A child needs a positive social role model. A child needs . . . food on the table, to be . . . brought to school, to be given any treatment that's needed, and in [H.R.]'s case he's got this long history of placement disruptions. . . . It's mitigated somewhat by the fact that . . . the grandfather, and the [resource] parents kept in touch during these transitions, but there was also the removal after age 2 from his biological mother. So here's a child who's vulnerable and to then place him with a parent who's not able to provide this kind of stability . . . would be very detrimental[.]

Marked by illicit drug use, criminal activity, repeated incarceration, unstable housing, and unemployment, defendant's lifestyle offered H.R. only a dangerous and destabilizing environment, not the security and consistency necessary for a child's healthy physical and emotional development. In the six-year period beginning October 2007 (when the Division sought to confirm defendant's paternity) to October 2013 (when defendant will be eligible for parole), defendant spent eighty percent of H.R.'s life in prison. When released from custody, defendant failed to remain law abiding for more than five consecutive months before resuming criminal activity and returning to State custody.[4] Defendant refused to accept the need for drug rehabilitation and declined offers for therapy. His "withdrawal of . . . solicitude, nurture, and care for an extended period of time" reflected a "failure to provide even [] minimal parenting, " and assuredly represents "a harm that endangers the health and development of the child." D.M.H., supra , 161 N.J. at 379 (citing K.H.O., supra, 161 N.J. at 352-54).

Viewing the past as prologue, it is "reasonably foreseeable" that defendant will reoffend and return to jail. No evidence refutes the Division's proofs demonstrating his unwillingness or inability to cease inflicting this harm upon H.R. See K.H.O., supra, 161 N.J. at 353 (holding the second prong is satisfied by evidence of "parental dereliction and irresponsibility, " including "the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child").

Contrary to defendant's argument advanced on appeal, we find no factual parallels between this matter and that depicted in N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145 (2010). In I.S., the Division contacted the child's putative father, who had no prior knowledge of the child's existence. Id. at 171. He appeared in court and met with the Division "at the first available opportunity." Ibid. During this period, "he consistently offered alternative placements for [the child] with relatives; and, ultimately, he offered himself for that placement, " approximately nine months following the Division's first contact. Ibid. The Supreme Court reversed the finding the statute had been satisfied, holding the father's eight-to nine-month "delay in offering himself to raise his own child could have caused the 'harm' necessary to satisfy, by clear and convincing evidence, that '[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship[.]'" Id. at 171-72 (alteration in original) (quoting N.J.S.A. 30:4C-15.1(a)(1)). "[S]omething more than the delay presented" was required. Id. at 171.

In this matter, despite knowing he had fathered a child, defendant continuously absented himself for most of H.R.'s life, predominantly because of his repeated criminal conduct related to drug abuse. Defendant's omission cannot be analogized to the nine-month adjustment to the possibility of parenthood faced by the father in I.S.

Defendant next challenges the conclusion that the Division made reasonable efforts to provide services to aid correction of the circumstances necessitating H.R.'s placement. Defendant suggests the Division failed to follow regulatory provisions to develop case plans with him for reunification. Further, he argues the Division failed to consider his family for possible placement as an alternative to termination of parental rights. We conclude defendant's arguments lack merit.

Reasonable efforts depend upon the facts and circumstances of each case, D.M.H., supra, 161 N.J. at 390, and "may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.Super. 418, 441 (App. Div. 2009) (internal quotation marks and citations omitted). The specific services designed to meet the child's need for permanency and the parent's right to reunification, must be "'coordinated'" and must have a "'realistic potential'" of success. N.J. Div. Of Youth & Family Servs. v. J.Y., 352 N.J.Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3). The parent's "active participation in the reunification effort" is essential. D.M.H., supra, 161 N.J. at 390.

In this regard, defendant asserts he completed many services, for which he did not receive credit. Facts surrounding this claim were presented at trial. McNair recited each of the courses defendant stated he completed and she explained her inability to verify the assertions. On the other hand, she had evidence of defendant's release from programs for lack of participation, his multiple absences from appointments for psychological examinations and substance abuse assessments, and his failure to follow recommendations for treatment. In fact, defendant never completed one substance abuse counseling program.

Dr. Schroeder identified this concern confirming "[t]esting and interview indicated [defendant's] reluctance to admit to problems, and difficulty engaging in treatment." Dr. Schroeder could not accurately evaluate defendant's parenting capacity or the risks of abuse to H.R. "because of [his] denial of any problems" and overall pattern of minimizing problems, such as his legal history and his struggle with substance abuse. She concluded defendant's history of avoidance made it unlikely he could "become able to parent in a timely fashion."

Additionally, the record shows defendant missed court hearings and demonstrated no effort to find stable housing or employment. Most important is defendant's limited interaction with H.R. Defendant acknowledged he had never met two-year-old H.R. when first approached by the Division. His opportunity to assume a parental role came upon his release from prison in April 2008. However, in the four-month period between incarcerations defendant demurred when it was recommended he participate in Division supervised visits, as well as those supervised by CFS in 2009.

In addition to defendant's failure to actively participate in services and visitations, his repetitive incarceration impeded the Division's ability to help him develop skills to care for H.R. The Division faced "the difficulty and likely futility of providing services to a person in custody[, ]" which this Court has long recognized. N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J.Super. 525, 535-36 (App. Div. 2006). See also N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J.Super. 228, 242 (App. Div. 2010) (same).

As we noted in T.S., "[t]he primary reasons obviating the provision of services to [defendant] were he had no relationship with [the child] and could not offer the child permanency[, ]" amounting to "physical[] and financial[] abandon[ment.]" Supra, 417 N.J.Super. at 242. "Further, this lack of a relationship between father and [child] could not be ameliorated by visitation or services because [defendant] remained incarcerated throughout the litigation." Id. at 243. See also In re Adoption of Children by L.A.S ., 134 N.J. 127, 139 (1993) (stating "once a parent is imprisoned, a relationship with one's children that was nonexistent prior to incarceration will not likely be fostered").

In order to safely parent H.R., Dr. Schroeder testified defendant

would need to be released from jail, establish a home, go through substance [abuse] treatment, go through treatment aimed at reducing his criminal activity, [and] find a way to financially support the child. . . . It's unlikely that he would do that because he'd have to be willing to engage in this treatment and to engage in any treatment that [H.R.] might need.

Defendant never reached these milestones. Absent evidence supporting the possibility of defendant's future availability and developed ability to provide for H.R.'s care, the Division had no further obligation beyond the efforts it had already expended.

Defendant additionally advances numerous arguments suggesting the Division "inadequately considered his family for possible placement[, ]" by not involving him in family case plans;[5] failing to investigate paternal familial placements because H.R. was in E.R.'s care; improperly ruling out P.T.; and pouring its resources "exclusively into helping the foster family bond and attach while preparing for adoption[.]" These assertions are unfounded.

"When considering what efforts the Division has expended to assist the parent to correct the circumstances which led to the child's placement, the court must consider the alternatives to termination of parental rights and whether the Division acted reasonably." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.Super. 418, 434-35 (App. Div. 2001) (citing N.J.S.A. 30:4C-15.1a(3)), certif. denied, 171 N.J. 44 (2002). "This includes relative placements for the child that would obviate the need for termination of parental rights and adoption." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J.Super. 451, 488-89 (App. Div. 2012). However, "there is no common law presumption in favor of an award . . . to a relative as opposed to a third party[.]" N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J.Super. 515, 528 (App. Div. 2003) (quoting Beck, supra, 86 N.J. at 488). Likewise, "although there are statutory provisions in Title 30 and Title 9 which refer to relative placements, the statutes do not create a presumption in favor of such placement." Id. at 528-29. It "would be a misapplication of the law" to keep a child "in limbo" hoping for some long term unification plan or alternative relative placement. A.G., supra, 344 N.J.Super. at 438.

The Division did not consult defendant when preparing case management plans because he was incarcerated and deferred these decisions to M.R. In 2008, defendant recommended M.R.'s family, not his, should be considered for placement. Later he suggested P.T., his mother, who was fully considered, but rejected by the Division in 2009 and 2011. As required by N.J.S.A. 30:4C-12.1b, the Division notified P.T. she was disqualified from providing a home for H.R. because she had abused or neglected her children, and another son, who resided in her household, had a criminal history. On July 8, 2011, the Division directed P.T. to notify it if circumstances changed and advised her of her right to file an administrative appeal within twenty days. She did not timely challenge the Division's finding and made no effort to secure custody of H.R.[6]

During trial, McNair was extensively cross-examined regarding the Division's consideration of several paternal relatives and some maternal relatives. She stated the maternal family members were ruled out and the paternal relatives, other than P.T. and P.Q., had not been formally considered by the Division, as no one had a prior association with H.R. or submitted a request for consideration. McNair explained H.R. was living with his grandfather and his siblings. Therefore, disrupting his placement would have been inappropriate.

In April 2009, when E.R. determined he could no longer care for H.R., defendant was incarcerated and unavailable. The Division placed H.R. and his siblings with the same resource family. When released in May 2009, defendant started to pursue a course directing him to care for H.R., but his interest quickly waned and he returned to jail in September and again in December, this time for a lengthy sentence. Defendant's actions and omissions demonstrate his failure to make his son's needs a priority. The one constant in H.R.'s life was his siblings, and, fortunately, the three were welcomed to return to their resource family.

We strongly reject defendant's contention the Division directed its resources to achieve adoption. Rather, we find the Division's placement decisions were guided by a desire to achieve stability and safety for H.R., after defendant discarded his chances to be his caregiver.

In 2009, H.R. was suffering emotional instability, which his placement needed to mitigate, not exacerbate. Maintaining sibling unity in resource placements is preferable. See In re D.C., 203 N.J. 545, 561 (2010) ("Clearly, if sibling bonds are important in healthy families, they are critical to children who experience chaotic circumstances."). See also N.J.S.A. 9:6B-4(f) (providing a child in placement the right to maintain contact with his or her siblings as provided by the Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6). The decision to keep the children together with their familiar resource family, rather than separate H.R. to possibly live with a relative who was no more than a stranger, served the child's best interests.

For all of these reasons, we find no error in rejecting the pursuit of a possible paternal relative placement in lieu of continued care in H.R.'s resource placement. The Division clearly and convincingly satisfied the third prong of the best interest test.

Finally, defendant challenges the trial judge's reliance on the bonding evaluation when considering whether H.R. "will not suffer greater harm from the termination of ties with his biological parent than from the permanent disruption of his relationship with his resource family." L.J.D., supra, 428 N.J.Super. at 491 (citing K.H.O., supra , 161 N.J. at 355). See also N.J.S.A. 30:4C-15.1a(2) (citing evidence that separating the child from his or her foster family would cause serious harm). Defendant argues the judge erred in crediting Dr. Schroeder's conclusion H.R. "[i]n all likelihood" would suffer serious and enduring harm" if separated from his resource parents. On the other hand, given H.R.'s secure attachment to his resource parents, any harm resulting from separation from defendant would likely be ameliorated.

Defendant maintains H.R.'s reported reserved reaction during the evaluation resulted because he was handcuffed not because their bond was limited. Defendant argues "the methodology used by Dr. Schroeder was so poor in allowing the evaluation to continue with [defendant] being in handcuffs that the report should not have been given any weight whatsoever" as it "was unreliable to the point of uselessness[.]" We disagree.

Under the fourth prong of the statutory best interest test, "[T]he child's need for permanency and stability emerges as a central factor." K.H.O., supra, 161 N.J. at 357. Further, "reunification becomes increasingly difficult with the passage of time because a child may develop bonds with his or her . . . [resource] family and gain a sense of permanency." M.M., supra, 189 N.J. at 291. "If a child can be returned to the parental home without endangering his health and safety, the parent's right to reunification takes precedence over the permanency plan." L.J.D., supra , 428 N.J.Super. at 492 (citation omitted). However, when a child has bonded in a stable, nurturing resource home, the "termination of parental rights likely will not do more harm than good." E.P., supra , 196 N.J. at 108 (citation omitted).

Here, defendant's portrayal of the bonding evaluation is nothing more than his unsupported perception of H.R.'s feelings. The Division had no responsibility for the circumstances of his reoccurring recidivism, which mandated he be handcuffed. Moreover, reliance on Dr. Schroeder's uncontroverted expert testimony, supporting her conclusion H.R. was "securely attached" to his resource parents and bonded insecurely, if at all, to defendant, was not improper. Dr. Schroeder also supported her opinions that H.R.'s separation from his resource parents "[i]n all likelihood, " would cause serious and enduring harm, which defendant would be unable to ameliorate and the companion conclusion that were H.R. separated from defendant, any harm would be mitigated by the continuing love and care of his resource family.

Understanding "the quality of the proof adduced must be consistent with the interests at stake[, ]" the trial judge properly viewed H.R.'s relationship with his resource parents in a broader context that included consideration of "the quality of the child's relationship with his . . . natural parent[]." J.C., supra, 129 N.J. at 18. H.R.'s paramount need was to obtain a "permanent and defined parent-child relationship[]." Id. at 26 (internal quotation marks omitted). "The strong public policy of New Jersey favors permanency of child placement." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J.Super. 76, 116 (App. Div.), certif. denied , 180 N.J. 456 (2004). The reforms set forth in the Federal Adoption and Safe Families Act of 1997, emphasize a shift from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being. Id. at 111.

We conclude the trial judge's finding that the Division presented clear and convincing evidence satisfying the four prongs of the best interests of the child standard, codified in N.J.S.A. 30:4C-15.1(a), is supported by the substantial, credible evidence in the record. Further, the court's legal conclusions are solidly grounded on the applicable law. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J.Super. 148, 172 (App. Div. 2005). We sustain the order terminating defendant's parental rights and awarding the Division guardianship of H.R.

Affirmed.


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