September 30, 2013
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
B.J.K., Sr., Defendant-Appellant IN THE MATTER OF GUARDIANSHIP OF C.M.K., B.J.K., Jr. AND J.A.K., Minors
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-151-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Leviston N. Brisolla, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nora Pearce, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors C.M.K., B.J.K., Jr., and J.A.K. (David Valentin, Assistant Deputy Public Defender, on the brief).
Before Judges Reisner and Ostrer.
Defendant B.J.K., Sr., appeals from an October 4, 2012 order, terminating his parental rights to three of his children, C.M.K., B.J.K., Jr. and J.A.K. We affirm, substantially for the reasons stated by Judge Edward J. McBride, Jr., in his comprehensive written opinion issued on October 4, 2012.
The facts are set forth at length in Judge McBride's opinion and need not be repeated here in the same level of detail. To summarize, defendant and his girlfriend Sandra had three children, Calvin, born in 2003, Ben, born in 2004, and John, born in 2005. The Division of Child Protection and Permanency (Division) repeatedly provided Sandra with services to help her overcome her drug addiction and regain custody of her children. However, those efforts were ultimately unsuccessful, and Sandra made an identified surrender of her parental rights to R.D. and C.D., the paternal cousins who were acting as the children's foster parents. Meanwhile, defendant was absent from his children's lives for several years.
Sandra's identified surrender took place on March 16, 2012, six months before the guardianship trial commenced. At that hearing, Sandra testified under oath that she believed defendant was living in Florida, she had sent him a message on Facebook telling him about the guardianship proceedings, but he had not responded. The Division advised the judge that it had not yet served him with the guardianship complaint. Over the next several months, the Division was finally able to locate defendant in a Florida prison, and to serve him with the guardianship complaint and a 5A form. By June 12, 2012, defendant had assigned counsel, who advised the court that defendant was not scheduled to be released until February 2013. Without objection, the court scheduled the guardianship trial for September 4, 2012, and arranged for defendant to participate in the trial by speakerphone from the Florida prison.
At the time of the guardianship trial, the children had been continuously living with the foster parents since January 2011. The foster parents wanted to adopt them, and the children had expressed their wish to be adopted by the foster family.
The Division caseworker testified that the children had not seen defendant in two years. In his trial testimony, defendant admitted that he had not visited with any of the children since October or November 2010, when he moved to Florida. He testified that he got arrested a month or two after he moved to Florida, but was able to post bail after a few days. However, he did not contact his children, either before he was arrested or at any time after his release. He testified that he was re-incarcerated in September 2011, and had been in prison ever since. He testified that he tried to contact his children through the Division caseworker. However, he did not attempt to contact the children through his family, although he knew they were living with his cousins.
On cross-examination, defendant admitted that in a 2008 incident that led to the issuance of a domestic violence restraining order, he hit Sandra in front of the children. He admitted to committing a series of other offenses that involved getting into physical altercations, one of which led to his present incarceration. He admitted that he had not paid child support since 2005 or 2006.
Defendant also testified that he understood that his children had special needs, that his cousins wanted to adopt the children, and that they wanted to be adopted by the cousins. He stated that he wanted his children to remain with the cousins, but he wanted to be able to visit with them:
I'm not trying to take them away from the [foster parents]. I think they're in the best care possible right now. But what I don't want is to be shunned away, or totally lost from my kids. You understand? I love my kids more than life. I just – - I've been going through rough times, and so was the mother, but I knew to step away and let my cousin[s] handle this, but I don't want to . . . I wasn't ready for them when I was younger.
In his written opinion, Judge McBride found that the Division had satisfied the four prongs of the best interests test, N.J.S.A. 30:4C-15.1a(1) to -15.1a(4). Among other things, he found that defendant had voluntarily absented himself from the children's lives for years, leaving his cousins to act as their parents. The judge further found that defendant chose not to attend court hearings in the case for years, although he knew about them. He found that defendant also never participated in either visitation or court-ordered counseling. Although the Division failed to send defendant an "Interstate Package" in April 2011, the judge found that "even if the package had been sent, the children would not have been able to visit with [defendant] because only four months later he made himself unavailable by violating his probation and being incarcerated."
The judge further found that the children, then ages seven, eight, and nine, had "spent most of the past four years living with the [foster parents] or with their mother while maintaining contact with the [foster family.]" He found that the children wanted the foster family to adopt them. By contrast, he found that "[t]he children have indicated they barely remember their father, and are even afraid of him. Too much time has passed and the children deserve permanency now."
In striking a balance between a parent's constitutional rights and the children's fundamental needs, courts employ the four-part guardianship test articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:
a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) 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.
In their application, the four factors above "'are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).
In reviewing Judge McBride's decision, we must defer to his factual findings unless they "'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) (citation omitted). So long as "they are 'supported by adequate, substantial and credible evidence, '" a trial judge's factual findings will not be disturbed on appeal. In re Guardianship of J.T., 269 N.J.Super. 172, 188 (App. Div. 1993) (citation omitted). And we owe special deference to the trial judge's expertise in handling family issues. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). Judged by those standards, we find no basis in this record to second-guess Judge McBride's decision.
On this appeal, defendant contends that the Division failed to satisfy the four prongs of the best interests test. Having reviewed the record, we conclude that his appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.
We find no basis to disturb Judge McBride's finding that defendant voluntarily absented himself from his children's lives for years at a time. Defendant essentially conceded as much. Given that Sandra had been the children's primary caretaker and was attempting to overcome her addiction so that she could once again care for her children, the Division appropriately focused its resources on providing her with services in an effort to reunite her with the children. See In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999); N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J.Super. 576, 621 (App. Div.), certif. denied, 192 N.J. 68 (2007).
Relying on In re Guardianship of J.C., 129 N.J. 1, 19 (1992), and New Jersey Division of Youth & Family Services v. A.R., 405 N.J.Super. 418 (App. Div. 2009), defendant argues that the court should have ordered bonding evaluations between him and the children, and between the children and the foster parents. We cannot agree. In J.C. and A.R., the children had a significant ongoing relationship with the defendant parent, who was making efforts to become fit to care for them. In this case, defendant had not seen the children since 2010, and there was no evidence that they had any ongoing relationship with him. In fact one of the children had PTSD, in part due to witnessing defendant's violence against the mother. Nor was there evidence that defendant was capable of caring for the children in the foreseeable future. His incarceration in Florida at the time of the trial made a bonding evaluation impracticable. The issue of the children's bond with the foster parents was not contested at the trial, and even defendant conceded that the children should remain with them.