Opinion
DOCKET NO. A-3751-14T3
02-23-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. D.L., Defendant, and R.C., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF D.R.L. and D.D.-D.L., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Adrienne Kalosieh, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Laura A. Dwyer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (James J. Gross, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-118-15. Joseph E. Krakora, Public Defender, attorney for appellant (Adrienne Kalosieh, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Laura A. Dwyer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (James J. Gross, Designated Counsel, on the brief). PER CURIAM
Defendant, R.C. (Richard), appeals from an order terminating his parental rights to his son, D.R.L. (Daryl). The order also terminated the parental rights of Daryl's mother, D.F.L. (Donna), to Daryl and his half-sister. Donna does not appeal from that order. Richard seeks reversal, arguing insufficient evidence was presented to prove three of four prongs which the Division of Child Protection and Permanency (Division) must prove to terminate parental rights. We affirm.
The use of fictitious names is intended to provide clarity and confidentiality.
Richard is not the half-sister's father; therefore, only Richard's parental rights as to Daryl are subject to this appeal.
We discern the following facts from the record. Daryl was born on May 3, 2008, and resided with his mother. Richard denied paternity and never met his son. Donna had her first contact with the Division as a parent in November 2008, and was eventually substantiated for neglect of Daryl. At the time, Richard was finishing a prison sentence at a halfway house.
On or about August 22, 2013, Donna was evicted from her home, thus rendering her homeless. By way of order to show cause, Daryl was placed in the custody, care and supervision of the Division. In November 2013, the results of a paternity test confirmed Richard as Daryl's father. At a fact-finding hearing held on December 11, 2013, the Honorable Angelo DiCamillo, J.S.C., found Richard did not abuse or neglect his son and that Richard was entitled to services from the Division. The Division was simultaneously ordered to explore Richard's mother as a possible placement for Daryl. The Division's plan for Daryl was reunification with Donna, with a concurrent plan of adoption by his resource parent. At the time, Daryl and his half-sister were placed together with a resource family.
Richard's mother was initially sent a rule-out letter due to her inability to provide a home for the children as she had only a one bedroom apartment. She was later sent another rule-out letter stating she could not be a placement for Daryl and his half-sister based on a previous substantiation for the physical abuse of her own daughter in 1987. Both rule-out letters advised her of her right to appeal the decision, which she failed to do.
Throughout these proceedings, Richard was incarcerated pending trial for an attempted murder charge. He also had a criminal history, including the following convictions: third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7); third-degree theft, N.J.S.A. 2C:20(b)(2)(d); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1); and a conviction for possession of a weapon.
Because of an apparent clerical error, Richard's theft conviction is incorrectly listed as a violation of N.J.S.A. 2C:20(b)(2)(d) in his judgment of conviction, which is not an enumerated statute.
Because of his incarceration, Richard was not offered any services. He was ordered to attend a psychological and bonding evaluation to be scheduled by the Division. Although visitation was not offered to Richard at any point, there is no evidence in the record he made any request for visitation with his son. Richard remained updated regarding Daryl's progress as he regularly attended case management reviews and hearings for the duration of this case.
On August 4, 2014, the court approved the Division's permanency plan, finding that termination of parental rights followed by adoption was an appropriate plan. Following the permanency hearing, the resource family began wavering on whether they were willing to adopt Daryl. On September 8, 2014, the Division filed a complaint for guardianship of Daryl. In its complaint, the Division claimed Richard was "awaiting sentencing for attempted murder" and therefore "not an appropriate caregiver for his child." As of October 28, 2014, the resource parent was no longer willing to adopt Daryl due to his misbehavior.
On October 31, 2014, Richard suggested his older sister, Ann, as a potential caregiver for Daryl. The Division thereafter began exploring Ann as a potential placement for Daryl and his half-sister. The Division asserted they sent Ann a rule-out letter in January or early February 2015, but the letter was not offered or admitted into the record. On March 12, 2015, Ann was sent another rule-out letter denying her as a potential placement for Daryl and his half-sister "due to insufficient income." When considering whether Ann had sufficient income, the Division concluded she could not even support herself. Ann, like Richard's mother, was informed she could appeal the rule-out decisions, but failed to avail herself of that remedy.
Other potential placements for Daryl were also explored, such as his mother's former paramour, who was ruled out in March 2011 because he was unwilling and unable to care for the children. Donna did not suggest any potential relative placements.
At trial the Honorable Francine I. Axelrad, J.A.D. (retired and temporarily assigned on recall), heard testimony from Dr. Ronald S. Gruen, a licensed psychologist, a Division supervisor, and the Division caseworker, all of whom the trial judge found to be credible. Richard and Donna did not testify and did not offer any evidence.
Dr. Ronald S. Gruen testified as to his psychological evaluation of Donna, and a bonding evaluation he conducted between Donna and Daryl on December 12, 2014. Dr. Gruen also testified regarding a psychological evaluation of Richard which he performed on January 6, 2015. Dr. Gruen did not perform a bonding evaluation between Daryl and his father, because Richard had never met Daryl, and had no relationship with him.
During his psychological evaluation with Dr. Gruen, Richard admitted that he got "caught up" in an addiction. He also admitted his failure to pursue a relationship with Daryl, stating "I did not take the initiative. I messed up." Most significantly, Richard suggested the possibility of a designated surrender to his mother or sister as he recognized it was unlikely he would be able to parent in the foreseeable future.
Dr. Gruen also took into consideration the fact that Richard led a life of crime, having been incarcerated sporadically for four to five years, including his most recent incarceration with respect to an attempted murder charge. Dr. Gruen also testified that Daryl did not know Richard, rendering him "a father in name only." In Dr. Gruen's expert opinion, Richard was not ready to parent and would not be able to parent in the foreseeable future. Dr. Gruen opined that even if Richard should be released from prison, he would need at least a year to address his psychological and drug-related problems. Additionally, Dr. Gruen concluded that Daryl would suffer harm if he had to wait for Richard to be released from jail, as Daryl needs permanency and stability in his life. Therefore, Dr. Gruen determined termination of Richard's parental rights would be in the best interests of Daryl.
Dr. Gruen never performed a psychological evaluation of Daryl, but in formulating his opinion reviewed and relied upon two prior psychological evaluations, both of which were admitted into the record without objection.
On April 1, 2015, the trial judge rendered an oral decision from the bench and ordered Richard's parental rights terminated. With respect to prongs one and two, the trial judge found Richard not capable of caring for Daryl. She noted Richard "had an extensive criminal history" and "never bothered to form a relationship with [his son] before he was incarcerated." The trial judge relied on Dr. Gruen's expert opinion that Richard would be unable to care for Daryl even if he were released from prison. Ultimately, the judge found that Richard was "a father in name only."
With respect to prong three, the trial judge found the Division explored both Richard's mother and sister as potential placements for Daryl. Therefore, the judge concluded by clear and convincing evidence the Division made reasonable efforts to preserve the family and to explore alternatives to termination of parental rights by way of potential placements with family members.
Regarding the fourth prong, the judge found by clear and convincing evidence that termination of parental rights would not do more harm than good. The judge based her decision on her finding that Richard was unable to care for his son at that time or in the foreseeable future, and his inability to parent thwarted his son's need for permanence and stability.
Richard appeals from that order, claiming the Division failed to prove prongs two, three, and four, by clear and convincing evidence. He also claims the court's evaluation of the Division's evidence was flawed and that deference to the trial court's factual findings are not warranted.
The trial judge's fact findings will be upheld if they are "supported by adequate, substantial, and credible evidence." N.J. Div. of Youth and Family Servs. v. R.G., 217 N.J. 527, 552 (2014). We defer to the family court's credibility findings and findings of fact unless they are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth and Family Servs. v. G.L., 191 N.J. 596, 605 (2007).
Parents have a fundamental right to raise their biological children. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). However, parental rights are not absolute and the State has a "parens patriae responsibility to protect the welfare of children." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Termination of parental rights is appropriate if the Division proves by clear and convincing evidence:
(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 . . .;
(3) The [D]ivision 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.See also D.Y.F.S. v. A.W., 103 N.J. 591, 604-11 (1986) (articulating the four factors later codified in the statute).
[N.J.S.A. 30:4C-15.1(a)]
The four prongs "are not 'discrete and separate,' but 'relate to and overlap with one another to provide a comprehensive standard that identifies the child's best interests.'" N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (quoting G.L., supra, 191 N.J. at 606-07).
In the trial judge's April 1, 2015 oral opinion she made detailed factual and legal findings with respect to each prong of N.J.S.A. 30:4C-15.1(a), and determined the Division met each prong by clear and convincing evidence. We conclude her findings were supported by substantial credible evidence in the record. Having considered Richard's arguments, we conclude they are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). Therefore, we affirm substantially for the reasons expressed by Judge Axelrad in her thorough and well-reasoned oral opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION