Opinion
DOCKET NO. A-3013-13T4
04-10-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. G.C.-T., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.C.-T., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Marc D. Pereira, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Hector Ruiz, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Manahan. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-66-13. Joseph E. Krakora, Public Defender, attorney for appellant (Marc D. Pereira, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Hector Ruiz, Designated Counsel, on the brief). PER CURIAM
Defendant G.C.-T. appeals from a final judgment terminating his parental rights to his son Jack, now seven years old. He contends the Division of Child Protection and Permanency did not prove that termination of his parental rights was in the boy's best interests, N.J.S.A. 30:4C-15.1a(1)-(4). He also claims that the trial judge accorded undue weight to his incarceration for assault on a child. The Division and the Law Guardian oppose defendant's appeal. Having considered defendant's arguments in light of the record and controlling law, we affirm.
This is a fictitious name.
The essential facts are undisputed. Jack was born in July 2007 testing positive for cocaine, resulting in his removal from his mother's care. Although G.C.-T. was present at Jack's birth, he was not living with Jack's mother at the time. The baby was not placed with G.C.-T. because he had been incarcerated from 2003 until 2006 following a conviction on drug charges, and the Division sought to ensure his sobriety and fitness before placing Jack in his care.
After testing negative for drugs, G.C.-T. began having supervised visitation with Jack twice a month, eventually increasing to once a week. In April 2008, he told the Division he wanted Jack returned to his mother's care and hoped the baby would be placed with him if she relapsed.
G.C.-T. began missing visits in the fall of 2008 around the time he moved to Pennsylvania and asked that visitation be reduced to once a month. The Division worked with Pennsylvania authorities in 2009 to approve G.C.-T.'s home as a possible placement for Jack. In May or June, before final approval could be secured, G.C.-T. moved to New York.
Jack was returned to his mother's care in September. She subsequently reported that neither she nor Jack had any contact with G.C.-T. He testified that the last time he saw his son was in January 2010, shortly before his arrest for assault. G.C.-T. subsequently pled guilty to assault on a child under seven years of age and contempt and received an eight-year prison sentence. In 2011, Jack's mother again relapsed and he was placed with foster parents, who eventually sought to adopt him.
G.C.-T. testified that he was convicted of assault and drug possession. The testimony is at odds with the judgment of conviction admitted in evidence, which indicates that he was convicted of assault causing injury to a person under seven and contempt.
Jack's mother's rights were terminated along with G.C.-T.'s. She, however, is not part of this appeal.
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At the guardianship trial, G.C.-T. refused to answer any questions regarding his assault conviction, which he claimed was on appeal, asserting his Fifth Amendment right against self-incrimination. He admitted to two prior incarcerations of three years each. When asked about his plans for his son, he testified that he would be released from prison by 2018, when he would try to "get a job and become a taxpaying citizen, you know. Then I could take it from there."
The Division's expert in forensic psychology testified he traveled to New York to perform a psychological evaluation of G.C.-T. at the prison in which he was incarcerated. After the expert explained the nature and purpose of the evaluation and the procedure he would employ, G.C.-T. declined to participate. The expert was able to conduct a bonding evaluation of Jack and his foster parents. He found Jack had formed a secure bond with his foster parents and would suffer severe and enduring harm if his relationship with his foster mother were terminated.
After hearing the testimony, Judge Terrence Flynn found the Division had met its burden of establishing each prong of the best interests test, N.J.S.A. 30:4C-15.1, by clear and convincing evidence. He concluded that G.C.-T. had endangered Jack by not being available to parent him, first moving to Pennsylvania, then New York and then becoming incarcerated for eight years before Jack was three years old. He also found G.C.-T.'s guilty plea to assault on a child to be a serious issue. The judge accepted the unrebutted testimony that Jack could not be removed from his foster parents without suffering serious and enduring harm. He concluded G.C.-T. was not able to eliminate the "problems which interfere with his ability to care for [Jack] because he's in jail, and is likely to be there for the next four years."
The judge also found the Division had made reasonable efforts to assist G.C.-T. in providing a home for his son, arranging for visitation and working with the child welfare authorities in Pennsylvania when he moved to that state, but that little could realistically be done to improve the prospect of G.C.-T. assuming care of Jack after his incarceration in New York. Judge Flynn concluded that termination would not do more harm than good as no identifiable harm could come to Jack, other than the eventual realization his father was unwilling and unable to step forward to care for him as he deserved.
Our review of a trial court's decision to terminate parental rights is limited. N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). We generally "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that 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) (quoting N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).
Our review convinces us that Judge Flynn's findings are amply supported by the trial testimony. Contrary to G.C.-T.'s contentions, the judge did not treat him unfairly or rest his analysis on the mere fact of G.C.-T.'s incarceration. Instead, the judge appropriately considered G.C.-T.'s incarceration as one of several factors in his analysis. See N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 556 (2014) (noting that incarceration, though alone insufficient grounds to terminate parental rights, is one among several factors a court may consider in best interests analysis); In re Adoption of Children by L.A.S., 134 N.J. 127, 135-37 (1993) (same).
G.C.-T. never parented his son. He never lived with the child at any point, and his visits were always supervised. He was aware that Jack's mother had a severe and long-standing addiction problem yet did nothing to ensure the child's safety and stability. Even more important than his incarceration was that it was occasioned by an assault of a child under seven years old. Although G.C.-T.'s invocation of his right not to testify about his crime or the victim prevented detailed findings, the judge noted G.C.-T. pled guilty to the charge. His unwillingness to testify about his assault on a child and to submit to a psychological evaluation during the guardianship proceedings deprived the court of information as to the risk his criminality posed to Jack and whether rehabilitation was likely. See R.G., supra, 217 N.J. at 556.
We affirm the termination of G.C.-T.'s parental rights substantially for the reasons expressed by Judge Flynn in his opinion from the bench on February 18, 2014.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION