Opinion
DOCKET NO. A-5884-13T2
04-30-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. D.L.J., Defendant-Appellant, and A.A.W., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF J.L.J., Minor.
Adrienne M. Kalosieh, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Kalosieh, on the brief). Nancy Andre, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Andre, on the brief). Danielle Ruiz, Designated Counsel, argued the cause for minor J.L.J. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Ruiz, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-49-13. Adrienne M. Kalosieh, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Kalosieh, on the brief). Nancy Andre, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Andre, on the brief). Danielle Ruiz, Designated Counsel, argued the cause for minor J.L.J. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Ruiz, on the brief). PER CURIAM
Defendant D.L.J. appeals from a judgment entered after trial terminating his parental rights to his son, J.L.J. (Jason), and awarding guardianship to the Division of Child Protection and Permanency so that Jason can be adopted. Jason's mother, A.A.W. (Audrey), executed a voluntary surrender of her parental rights to Jason on September 13, 2013.
We employ pseudonyms to protect the identity of the child and for ease of reference.
Defendant argues that we should reverse the judgment because the Division did not prove the four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence. The Division and Jason's Law Guardian urge that we affirm.
Defendant was convicted of engaging in prostitution with a person under the age of eighteen, N.J.S.A. 2C:34-1(b)(7). On May 24, 2011, he was sentenced to a five-year term.
Jason was born in October 2011. Eight months later, on June 12, 2012, the Division filed a Title Nine complaint against Audrey seeking custody of Jason after learning that Audrey had performed a perverse act of sexual abuse on the infant. The Division conducted a Dodd removal and placed Jason with his maternal grandmother, B.T., where he remains.
A "Dodd removal" refers to the emergency removal of a child from the home without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.
--------
In August 2012, defendant was added to the Title Nine litigation for the purpose of paternity testing after Audrey named him as a possible father of Jason. On October 9, 2012, defendant was produced by writ and assigned counsel. He was advised that paternity testing had confirmed that he was Jason's biological father.
On October 22, 2012, a fact-finding hearing was conducted. Although the Division only sought a finding of abuse or neglect against Audrey, defendant was produced for the hearing and appeared with counsel. On January 15, 2013, the court entered a finding of abuse against Audrey. Defendant, who was present with counsel, was ordered to contact the Division immediately upon his release from prison to arrange for services. The Division was also ordered to verify whether defendant's conviction classified him as a Megan's Law offender.
On May 6, 2013, defendant was produced for a permanency hearing. The judge accepted the Division's proposed permanency plan of termination of the parental rights of both parents concurrent with reunification. The Division was ordered to file a complaint for guardianship.
On July 29, 2013, defendant appeared on the guardianship docket and the Title Nine matter was dismissed without objection. The deputy attorney general informed the court that the Division had arranged for monthly or possibly bi-weekly, one-hour visits between defendant and Jason at Bayside State Prison where defendant was incarcerated.
Jason's Law Guardian opposed the visits based on the child's tender age and the length of time it would take to drive there and back (one and one-half hours each way). Audrey also objected to the visits because the maternal grandmother, who had been caring for Jason, felt they would be physically and psychologically detrimental to the child.
The maternal grandmother testified that Jason suffered from asthma, took several medications and required a nebulizer due to breathing difficulties. She feared that the prison would prohibit her from bringing in the nebulizer, which would be harmful to Jason if he had an asthma attack. She produced the child's medical records including doctor, hospital, and clinical documents.
Based on the grandmother's testimony, the judge declined to order visitation. He concluded that Jason suffers from asthma and that his safety is the primary concern. He also found that the prison was not equipped to handle this specific type of visitation.
Defendant was released from prison on March 24, 2014, and the guardianship trial began on April 29, 2014. The Division presented testimony from caseworker Nisa Murray and psychiatrist, Dr. Alan Lee. Defendant also testified.
In a written decision filed August 1, 2014, Judge Louise DiRenzo Donaldson found that the Division had met its burden of proving the elements of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence and terminated defendant's parental rights to Jason.
While defendant challenges the Division's proof as to all four prongs of the best interests test, his primary contention is that the Division failed to prove that it made reasonable efforts toward reunification. We disagree with this and defendant's other arguments, and affirm substantially for the reasons set forth in Judge Donaldson's thorough and well- reasoned written opinion. We add only the following brief comments.
The third prong of the best interests test requires the Division to make reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home. N.J.S.A. 30:4C-15.1(a)(3). As a result of his conviction and five-year sentence, defendant was incarcerated when Jason was born and was not released until well after the child's second birthday. Because of his incarceration, his third prison sentence as an adult, defendant was not available to protect his son from Audrey's depraved sexual assault on the infant. This voluntary criminal behavior is "unquestionably relevant to the determination of whether the parental relationship should be terminated." In re Adoption of Children by L.A.S., 134 N.J. 127, 137 (1993).
During the critical developmental period of the first thirty months of Jason's life, defendant was unable to render the regular and expected functions of care and support of his child as required by statute. Id. at 137-38. As a result of Audrey's assault and defendant's incarceration, Jason was placed with his maternal grandmother. Dr. Lee's uncontroverted testimony established that during the time of this placement the child had developed "a significant and positive bond" with his grandmother. Conversely, Dr. Lee concluded that Jason did not demonstrate a significant and positive bond with defendant and if their relationship ended through termination of defendant's parental rights, the child would not suffer severe and enduring psychological or emotional harm.
Defendant relies on New Jersey Division of Youth & Family Services v. R.G., 217 N.J. 527 (2014), and claims that he is "similarly situated" to the father in R.G., but was treated with "shorter shrift" by the Division. We find his reliance misplaced and the comparison counterfactual.
The father in R.G. lived with the mother of his child and her child by another relationship for three years before the mother gave birth to his child. Id. at 536. After his child was born, the father was a part of her daily life and performed the normal everyday parental functions. Ibid. When his child was six-months old, the father was arrested and convicted for eluding a police officer. Ibid. He was sentenced to a five-year term in prison. Ibid. While in prison, he voluntarily participated in classes on anger management, behavior modification, cognitive behavioral change, reentry preparation, and parenting. Id. at 541. He wrote letters to his daughter on a monthly basis and when he was released to a halfway house, he spoke with his daughter nearly every day for two years. Ibid.
The Division removed both children from the home due to the mother's abuse of alcohol and placed them with the maternal grandmother. R.G., supra, 217 N.J. at 536. When the mother did not remain alcohol-free, the Division filed a complaint seeking guardianship. Id. at 537. The mother surrendered her parental rights in favor of the maternal grandmother and the Division sought to terminate the father's rights to his daughter. Ibid. The trial court found that the Division failed to prove by clear and convincing evidence that the father's parental rights should be terminated. Id. at 541-42. A divided appellate panel reversed, but our Supreme Court reversed and affirmed the trial court's judgment. Id. at 565.
The facts in R.G. bear scant resemblance to those before us. Unlike the father in R.G., defendant here had no relationship with his son from the time of his birth until trial began. Also, the Court in R.G. found the Division "paid only cursory attention to [the father] from the outset of its involvement with his family." Id. at 562. Here, the Division arranged for prison visitation but the child's health concerns precluded the visits. Significantly, defendant's crime of conviction involved endangering a minor, unlike the eluding charge in R.G.
In light of our obligation to defer to the trial judge's findings of fact, id. at 552-53, we affirm based on the trial judge's detailed opinion as well as the reasons stated above.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION