Opinion
DOCKET NO. A-5363-14T1
06-17-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.M.P., Defendant, and R.S., III, Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.M.S., a minor.
Beatrix W. Shear, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Shear, on the briefs). Steven J. Colby, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Colby, on the brief). Damen J. Thiel, Designated Counsel, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Thiel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-15-15. Beatrix W. Shear, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Shear, on the briefs). Steven J. Colby, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Colby, on the brief). Damen J. Thiel, Designated Counsel, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Thiel, on the brief). PER CURIAM
Defendant R.S. appeals a July 14, 2015 Family Part order terminating his parental rights to his son J.M.S. (John) and granting guardianship of John to the New Jersey Division of Child Protection and Permanency (Division). After reviewing the record in light of the contentions advanced on appeal, we affirm.
We use pseudonyms to protect the privacy of the parties and for ease of reference.
I.
We discern the following facts and procedural history from the record. Defendant and L.M.P. (Linda) are the biological parents of John, who was born in 2006. Prior to John's birth, Linda had lost custody of three other children. She surrendered her parental rights to two children to the Pennsylvania Child Protective Services and in 2004 the Division was awarded guardianship of a third child.
In 2004, the Division was known as the Division of Youth and Family Services. Pursuant to L. 2012, c. 16, effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency.
The Division became involved with Linda again in January 2006, during her pregnancy with John based on a referral that she was using drugs and failing to obtain appropriate prenatal care. Linda entered an inpatient drug program in the City of Paterson, where she gave birth to John in April 2006. Linda and John resided at the program until September 2006, when they moved to a transitional living program in the City of Jersey City. During this period of time, defendant lived in Wildwood.
Defendant did not reside with Linda at any time during her pregnancy with John or after John's birth. He was not present at John's birth and was not named as John's father on John's birth certificate. Defendant has never lived with John or supported him. On July 12, 2007, defendant consented to the court's grant of sole custody of John to Linda.
Defendant acknowledged paternity of John on January 28, 2011, in an action filed by Linda in Philadelphia.
In March 2009, Linda married J.P. (Jarred) and in June 2009, they moved with his two children and John to Kansas. In May 2011, Linda, Jarred, and the children moved to Florida. Jarred died and in June 2012, Linda and the children returned to New Jersey.
When Linda and the children returned to New Jersey in 2012, defendant was incarcerated. Defendant has an extensive criminal history, which began in 1991. On February 21, 2012, he was sentenced in Pennsylvania for his fifth criminal conviction to a custodial term of up to twenty-three months. He was paroled to an inpatient substance abuse program and released on October 23, 2012. On December 16, 2012, he moved to Philadelphia with his girlfriend.
On December 18, 2012, the Division conducted a Dodd removal of John from Linda's custody based upon Linda's drug use. Linda was substantiated for neglect due to her overdosing on drugs in the children's presence. The Division placed John in foster care. Defendant was advised that John had been removed from Linda's custody and that a hearing was scheduled for December 20, 2012.
A "Dodd removal" is an emergency removal of a child from the custody of a parent without a court order, as authorized by N.J.S.A. 9:6-8.21 to -8.82.
John's step-siblings were also removed. We do not address any issues related to the step-siblings because they are not the subject of defendant's appeal.
Defendant appeared at the December 20, 2012 hearing and was granted weekly supervised visitation with John and directed to undergo psychological and substance abuse evaluations and submit to random drug/alcohol screenings. Physical and legal custody of John was granted to Linda's mother.
The Division arranged for defendant and John to attend supervised therapeutic visitation at Danellie Counseling (Danellie), but defendant indicated the schedule interfered with his probation appointments and rescheduled his visits without notifying the Division. Defendant failed to attend his first scheduled visitation with John on January 25, 2013, but attended several subsequent visits. A representative of Danellie observed that there was a need for relationship building between defendant and John, and recommended Parent Child Therapy Interaction (PCTI).
On February 7, 2013, the court entered an order permitting Linda to move back into her mother's home where John and his step-siblings were residing. The court order prohibited Linda from being alone with the children and again directed that defendant undergo substance abuse and psychological evaluations and submit to random drug screens. The order permitted defendant weekly visitation with John supervised by the Division or Division approved relatives.
On February 14, 2013, defendant cancelled his scheduled visit with John at Danellie. Linda reported that she received a telephone call from defendant's girlfriend and was informed defendant was smoking crack. Linda also reported that defendant told her he used crack cocaine, but defendant later denied the allegation to a Division caseworker.
On March 18, 2013, a Danellie employee advised the Division that defendant had stopped attending therapeutic visitation with John and that defendant completed all of the teaching sessions but had only completed one coaching session. The employee was unable to provide an opinion on defendant's counseling due to his failure to complete scheduled coaching sessions.
Defendant failed to attend three substance abuse evaluations that were scheduled during March and April 2013.
On March 25, 2013, the court granted joint legal custody of the children to Linda and her mother. The court also transferred physical custody of the children to Linda as the parent of primary residence, and to her mother as the parent of alternate residence. Defendant was ordered to undergo substance abuse and psychological evaluations and random drug screens, and permitted weekly visitation with John supervised by the Division.
On May 21, 2013, John informed the caseworker that he talks to his father on the phone "a lot." On June 6, 2013, John reported to the caseworker that he had been video chatting with his father, talking to his father every day, and playing games on the internet with his father. John also stated that defendant was "always sleeping on the couch when he visits and . . . do[es] not have a lot of food" at the house. The Division was unaware of visits John may have had with defendant at defendant's home because the court had required that the Division supervise all visits.
On June 4, 2013, defendant failed to attend a psychological evaluation which had been arranged for him by the Division on April 15, 2013.
Defendant was arrested in Pennsylvania on June 27, 2013, on violation of probation charges and remained incarcerated until November 6, 2013.
During the summer of 2013, John spent every other week with his aunt L.W. (Aunt Lucy) and uncle S.W. (Uncle Sean) in the Poconos.
In July 2013, Danellie terminated defendant's therapeutic visitation services due to defendant's failure to attend visits. Defendant had not attended a therapeutic visitation at Danellie since early March 2013. The Division was advised that defendant would be put on a list for a new visitation schedule, and that it may take one or two months before there would be an opening.
The Division conducted a second Dodd removal of John on August 5, 2013, due to Linda's drug use. Linda was substantiated for neglect for being under the influence of drugs while caring for her children.
John's two step-siblings were also removed.
On August 7, 2013, the Division filed a verified complaint and order to show cause seeking custody of John and his step-siblings. The Division was granted custody and John was placed in a resource home. Defendant was served with the complaint but could not appear at the compliance review hearing on August 15, 2013, because he was incarcerated. At the hearing, defendant was ordered to attend psychological and substance abuse evaluations, submit to random drug/alcohol screenings, and was allowed weekly visitation supervised by the Division or Division approved relatives.
John was unhappy in the resource home and expressed interest in a placement with his Aunt Lucy and Uncle Sean. He did not request placement with defendant.
In September 2013, John's resource parents reported that John was acting out. He was diagnosed with attention deficit hyperactivity disorder (ADHD) and placed on medication. John's resource mother advised the Division that it might be necessary to remove John from the resource home due to his constant altercations with his stepbrother.
On October 10, 2013, Linda stipulated to a finding of abuse or neglect, admitting that in December 2012, and on August 5, 2013, she ingested cocaine and unprescribed medication that interfered with her ability to properly care for John and his step-siblings.
Defendant was unable to attend a compliance review hearing on October 10, 2013, due to his ongoing incarceration. The court ordered defendant to contact the Division upon his release to be assessed for services. Defendant was released on November 6, 2013, and placed on probation.
Defendant visited with John on December 13, 2013. He attended a compliance review hearing on December 17, 2013, and was ordered to attend a psychological evaluation, substance abuse treatment, and submit to random urine screens. Defendant was entitled to weekly visitation with John supervised by the Division or Division approved relatives.
John visited his Aunt Lucy and Uncle Sean on December 23, 2013. An interstate approval for John to stay with them was completed with the consent of Linda and defendant. On January 17, 2014, John reported to the Division caseworker that he was happy living with his aunt and uncle, had his own bedroom, and was excited about starting school.
In January 2014, Aunt Lucy told the Division caseworker that she had a telephone conversation with defendant and considered allowing John to have a cell phone to speak with defendant but decided against it because defendant was "very vulgar and threatening to her when she stated that she [did] not want him to have her address." Aunt Lucy contacted an interstate worker in Pennsylvania to arrange for supervised visits with John and defendant.
The Division caseworker contacted defendant on February 4, 2014, to arrange a meeting on February 5, 2014, to discuss the resumption of defendant's visitation with John. Defendant did not meet with the caseworker.
Defendant did not appear at a February 12, 2014 compliance review hearing, where the court continued John's legal and residential custody with Aunt Lucy and permitted supervised visitation of John with defendant. Defendant was again ordered to undergo substance abuse and psychological evaluations and random drug testing. The Division arranged for defendant to attend a psychological evaluation on February 26, 2014, but defendant did not attend.
Defendant was arrested and incarcerated in Pennsylvania on March 10, 2014, on charges of robbery and inflicting serious bodily injury, conspiracy, theft by unlawful taking, receiving stolen property, simple assault, and recklessly endangering another person. At the time this appeal was submitted, defendant remained incarcerated awaiting trial.
At compliance review hearings on April 23, 2014, and June 16, 2014, defendant was ordered to attend a psychological evaluation and substance abuse assessment, submit to random drug screens, and contact the Division upon his release from incarceration.
On May 5, 2014, Aunt Lucy and Uncle Sean acknowledged receipt of an "Adoption/KLG Fact Sheet." On May 23, 2014, Aunt Lucy indicated that she did not prefer Kinship Legal Guardian (KLG) and was committed to adopting John. John told the Division caseworker that he understood what adoption meant, and that adoption by his aunt was acceptable.
A permanency hearing was held on June 17, 2014. The court delayed its acceptance of the Division's permanency plan of termination of defendant's and Linda's parental rights followed by adoption until August 13, 2014.
At the hearing on August 13, 2014, the court noted that defendant had not contacted the Division and had "not availed himself of [Division] services since January, 2014 and ha[d] not visited" John. The court further noted that defendant had been incarcerated during various periods after January 2014, but "did not contact the Division during his release."
The court entered a permanency order approving the Division's plan for termination of defendant's and Linda's parental rights to John, followed by relative adoption for John. The court found the permanency plan appropriate regarding defendant because he had not visited John since December 2013, had not availed himself of Division services, and was incarcerated.
On September 10, 2014, the Division filed a complaint for guardianship and termination of defendant's and Linda's parental rights to John. At the order to show cause on September 15, 2014, the Law Guardian advised the court that John was doing well, wanted to be adopted by his aunt, and had not seen defendant since December 2013.
On September 16, 2014, defendant was advised of the court's approval of the Division's plan of guardianship and termination of parental rights. The Division arranged for psychological and bonding evaluations to occur at the jail where defendant was incarcerated.
Dr. Ronald S. Gruen conducted the psychological evaluation on defendant and bonding evaluations between defendant and John on October 14, 2014. On October 27, 2014, Gruen conducted a psychological evaluation of Aunt Lucy and Uncle Sean and a bonding evaluation between Aunt Lucy, Uncle Sean, and John. Gruen subsequently issued written reports and recommendations based on his evaluations.
A guardianship multipurpose order was entered on October 30, 2014, stating that if defendant was "released from jail and wishe[d] to visit, he shall contact his attorney and the Division to notify them."
On March 31, 2015, Linda voluntarily surrendered her parental rights to John to Aunt Lucy and Uncle Sean. The court accepted the voluntary surrender and entered an order terminating Linda's parental rights and granting guardianship to the Division.
The Division caseworker attempted to contact defendant in May 2015, to discuss his plans for John, but was unable to contact defendant because he was transferred to a unit in the Pennsylvania jail for inmates with behavioral health issues.
The guardianship trial was conducted over two days. Gruen and the Division caseworker testified during the first day of the hearing and defendant testified on the second day.
Defendant was unable to attend the hearing because of his incarceration. He was provided a transcript of the first day of hearing, given time to review the transcript before the second day, and testified telephonically on the second day.
At the conclusion of the testimony, the judge rendered an oral opinion finding that Gruen and the caseworker were credible witnesses. The court also found that defendant "openly lied in court," "changed his story several times," "cannot tell the truth to a Superior Court judge," and had a consistent record of criminal convictions. The court rejected defendant's testimony as not credible.
The court determined that there was "more than ample evidence in the record . . . to support a finding that . . . the best interests of the child require the termination of parental rights of [defendant]" under N.J.S.A. 30:4C-15.1, and entered an order terminating defendant's parental rights and awarding guardianship to the Division. This appeal followed.
II.
The scope of our review on an appeal from an order terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We will uphold a trial judge's factfindings if they are "supported by adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). No deference is given to the court's "interpretation of the law" which is reviewed de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012) (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010); Balsamides v. Protameen Chems., 160 N.J. 352, 372 (1999)).
We "accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2014) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605). We also accord deference to the judge's credibility determinations "based upon his or her opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing Cesare, supra, 154 N.J. 394 at 411-13), certif. denied, 190 N.J. 257 (2007).
When terminating parental rights, the court focuses on the "best interests of the child standard" and may grant a petition when the four prongs set forth in N.J.S.A. 30:4C-15.1(a) are established by clear and convincing evidence. In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). "The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Id. at 348.
Defendant contends there was insufficient evidence supporting the court's findings on each of the four prongs and the court incorrectly applied the principles governing the termination of parental rights of an incarcerated defendant under the Court's holding in R.G. After reviewing defendant's arguments in light of the record and applicable legal principles, we are convinced that there is substantial credible evidence supporting the court's findings of fact and determination that the Division established by clear and convincing evidence under N.J.S.A. 30:4C-15.1(a) that it was in John's best interest to terminate defendant's parental rights. We note, however, the following.
A. Prong One
The first prong of the best interests of the child standard requires the Division to establish that "[t]he child's safety, health, or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "[T]he Division must prove harm that 'threatens the child's health and will likely have continuing deleterious effects on the child.'" N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 25 (2013) (quoting K.H.O., supra, 161 N.J. at 352).
We are not persuaded by defendant's argument that the absence of a finding of abuse or neglect against defendant "in and of itself, should prevent DCPP from prevailing against [defendant] in this guardianship case." It is well settled that the Division may commence a guardianship action without any prior finding of abuse or neglect, and without any prior action under Title Nine. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 292 (2007); N.J. Div. of Youth & Family Servs. v. J.C., 423 N.J. Super. 259, 266 (App. Div. 2011); N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 259 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010). While abuse or neglect proceedings may be informative for discussions of harm under N.J.S.A. 30:4C-15.1(a), a prior determination of abuse or neglect is not required for a determination of termination of parental rights cases. F.M., supra, 211 N.J. at 443-44; see also N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 117 (2011) (rejecting "the notion that the first prong of the 'best interests of the child' standard applicable to termination of parental rights proceedings under N.J.S.A. 30:4C-15.1(a)(1) was satisfied by the abuse or neglect findings made by the Title Nine court").
The focus under the first prong is not on any "single or isolated harm," but rather on "the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986)). The harm may be established by "a delay in establishing a stable and permanent home." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). "A parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Id. at 379. Additionally, a parent's "persistent failure to perform any parenting functions and to provide . . . support for [the child] . . . constitutes a parental harm to that child arising out of the parental relationship [that is] cognizable under N.J.S.A. 30:4C-15.1(a)(1) and (2)." Id. at 380-81.
We are satisfied there is substantial credible evidence supporting the court's finding under the first prong of the best interests of the child standard, N.J.S.A. 30:4C-15.1(a)(1), that defendant caused harm to John by "substantially abandoning him and exposing him to the risks of lack of care." Defendant, however, argues that the court erred because defendant's incarceration alone is insufficient to support a termination of his parental rights. R.G., supra, 217 N.J. at 555 (citing In re Adoption of Children by L.A.S., 134 N.J. 127, 136 (1993)). Incarceration of a parent, however, is a factor the court may consider in determining whether to terminate parental rights, id. at 554-55 (citing L.A.S., supra, 134 N.J. at 136), and "is regarded as probative of whether the parent is incapable of properly caring for the child or has abandoned the child." L.A.S., supra, 134 N.J. at 136-37.
Contrary to defendant's assertion, the court's finding of harm was not based upon defendant's incarceration alone. The credible evidence established that defendant was not involved in John's life from the time of the child's birth in 2006 until December 2012, and did not make any effort to support, care for, communicate with, or contact John during those first six and one-half years of John's life. After defendant was afforded an opportunity to have weekly visitation after December 2012, he missed some scheduled visits, attended a few visits, but by the end of February 2013, stopped appearing for the visits due to a purported scheduling conflict which he took no action to remediate.
We recognize that defendant testified regarding other contacts with John, including a single visit with John when Linda visited New Jersey while living in Kansas or Florida, but the court found that defendant was not a credible witness.
Defendant was incarcerated in June 2013, based upon a violation of his probation. After his release on November 6, 2013, he chose to visit John on only a single occasion in December 2013, prior to his re-arrest and incarceration on March 10, 2014.
We are therefore convinced that the court had substantial credible evidence supporting its finding of harm, independent of defendant's incarceration, and reject defendant's argument that our Supreme Court's decision in R.G. requires a different result. In R.G., the Court held that "the Division failed to show by clear and convincing evidence that [the defendant-father's] incarceration caused harm to [the child]" because the father "parented [the child] prior to his incarceration," and remained a part of the child's life and communicated with the child while incarcerated. R.G., supra, 217 N.J. at 559-60.
Unlike the defendant in R.G., defendant here has never lived with John, has never cared for or supported the child, and has never made any effort to communicate with or contact John during the entirety of the child's life other than the occasional interactions with the child during the few weekly visitations he chose to attend in early 2013 and a single visit on December 13, 2013. Defendant did not contact, communicate with, or write to John during defendant's periods of incarceration over the years. Defendant did not know the names of John's doctors or the schools he attended. In February 2014, the Division sought to meet with defendant to make arrangements for him to visit John in Pennsylvania and defendant failed to meet the Division worker to make the arrangements.
There was evidence that in early 2013, Linda permitted John to visit with defendant in violation of the court's order for supervised visitation, but John reported that there was no food at defendant's home and defendant slept most of the time on the couch. There was also evidence that during that period John and defendant spoke on the telephone and played videogames over the internet.
The evidence therefore supports the court's conclusion that defendant's failure to support, care for, and communicate with his son constituted a "withdrawal of . . . solicitude, nurture, and care" and demonstrated defendant's "persistent failure to perform any parenting functions." D.M.H., supra, 161 N.J. at 379, 380-81. The court correctly found that the Division established harm under the first prong of the best interests standard.
B. Prong Two
The second prong relates to parental unfitness and requires the Division to prove that 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] [s]uch harm may include evidence that separating the child from his [or her] resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2). In analyzing the second prong as it relates to harm, courts are permitted to consider evidence presented pertaining to the first prong, which also deals with harm. D.M.H., supra, 161 N.J. at 379. The focus is "whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care." A.W., supra, 103 N.J. at 607.
Defendant argues that the second prong of the best interests standard is not relevant because John did not suffer harm under prong one, and therefore there could be no finding under prong two. We disagree. As noted, the court's finding of harm under the first prong of the standard was supported by substantial credible evidence and was otherwise proper.
Defendant also argues that even if prong two was relevant, there was insufficient evidence establishing that permitting him to continue as a noncustodial parent would cause added harm to John, other than preventing his adoption by Aunt Lucy and Uncle Sean. The Court in K.H.O. held that the second prong may be satisfied "by indications of parental dereliction and irresponsibility, such as . . . the inability to provide a stable and protective home, [and] the withholding of parental attention and care." K.H.O., supra, 161 N.J. at 353. Harm considerations may also include the harm caused by "separating the child from his [or her] resource family parents." N.J.S.A. 30:4C-15.1(a)(2); N.J. Div. of Youth & Family Servs v. C.S., 367 N.J. Super. 76, 118-19 (App. Div.), certif. denied, 180 N.J. 456 (2004).
Here, the evidence supports the court's finding that defendant was unable and unwilling to eliminate the risk of harm to John. Based upon his evaluation of defendant, Gruen concluded that defendant was not capable of parenting John at the present time and his personality issues made it unlikely he could function as a good role model for the child in the future. In addition, defendant's lengthy and consistent criminal record and periods of incarceration, lack of any involvement with John during the first six and one-half years of his life, decision to forego numerous opportunities to visit with John following December 2012, failure to take advantage of services supporting an establishment of his relationship with John, and his failure to accept responsibility for his conduct provided ample support for the court's determination that defendant was "unable or unwilling to provide a safe and stable home for the child and the delay of a permanent placement will add to the harm."
Moreover, the evidence supports the court's finding that separating John from his resource parents would cause harm. Deferring to the court's factfindings, F.M., supra, 211 N.J. at 448, we are convinced the record contains clear and convincing evidence that defendant is unwilling to eliminate the harm facing John, including the harm that would result if John's placement with his aunt and uncle was delayed or not made permanent. N.J.S.A. 30:4C-15.1(a)(2).
C. Prong Three
The third prong of the best interests of the child standard requires the Division to establish that it made reasonable efforts to help the parent correct the circumstances that led to the child's removal from the parent's care, and "considered alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). "The diligence of [the Division's] efforts on behalf of a parent is not measured by their success. . . . These efforts must be assessed against the standard of adequacy in light of all the circumstances in a given case." D.M.H., supra, 161 N.J. at 393.
We are not persuaded by defendant's argument that the Division failed to make reasonable efforts to provide services. "Reasonable efforts" means "attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:" developing a plan for reunification; providing agreed upon services; informing the parent of the child's progress; and "facilitating appropriate visitation." N.J.S.A. 30:4C-15.1(c). "Whether particular services are necessary in order to comply with the [reasonable] efforts requirement must . . . be decided with reference to the circumstances of the individual case before the court . . . ." D.M.H., supra, 161 N.J. at 390. The Division's efforts need not be successful to be reasonable. F.M., supra, 211 N.J. at 452.
The record reflects that defendant received supervised visitation and counseling services through Danellie, and the Division offered to pay for the services if they were not covered by defendant's insurance carrier. Danellie was forced to end the provision of its services in 2013, however, because of defendant's failure to appear and participate.
The Division scheduled numerous substance and psychological examinations between January 2013, and March 2014, and defendant did not appear for any of them. Defendant participated in a psychological and bonding evaluation arranged by the Division, but only after he was incarcerated and was not required to make a volitional decision to appear for it.
In February 2014, the Division scheduled a meeting with defendant to arrange for visitation with John during his placement with his aunt and uncle in Pennsylvania. Defendant failed to appear for the scheduled meeting.
Defendant relies upon the Court's holding R.G. in support of his contention that the Division failed to take reasonable steps to provide services during his incarceration which began in March 2014. The record reflects that defendant is incarcerated outside of the State of New Jersey. The Division sent notices to defendant during his incarceration and he failed to respond to them or contact the Division. Defendant testified during the trial that telephone contact with him during his incarceration was "virtually impossible."
In R.G., the Court noted the "unique challenges that incarceration presents" to the Division in its provision of services to an incarcerated parent and that a determination of "[r]easonable efforts depend[s] on the facts and circumstances of each case." R.G., supra, 217 N.J. at 557. In R.G., the defendant parented his daughter following her birth and until his incarceration, communicated with the child's mother about the child prior to the removal of the child from the mother's custody, and communicated with the child while he was incarcerated. Id. at 560.
The circumstances presented here are different than those before the Court in R.G. As noted, defendant has never parented John, has been consistently absent from his life, has rejected opportunities to reunite with the child during the periods he was not incarcerated following December 2012, and has never made any effort to communicate with John during any of his numerous periods of incarceration. Gruen described defendant's relationship with John as one of "acquaintance" and the court found that defendant's lack of a relationship with John could not be "ameliorated by visitation or services because defendant has remained incarcerated." Moreover, there is no evidence that defendant's release from incarceration is imminent.
Defendant has been awaiting disposition of his current criminal charges since his March 2014 arrest in Pennsylvania.
The Court in R.G. found
in circumstances such as these, particularly when an incarcerated parent's release is imminent, the other parent has relinquished her rights to their child, and the incarcerated parent has expressed a willingness to improve his parenting skills and a desire to deepen his parent-child relationship, the Division must do more than merely speak with the parent and provide . . . evaluations.As the trial court correctly noted, there are no similar circumstances extant here. See N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228 (App. Div. 2010) (finding that "[t]he primary reasons obviating the provision of services" to the incarcerated parent was because of the defendant's lack of a relationship with the child and his inability to provide permanency), certif. denied, 205 N.J. 519 (2011).
[Id. at 563.]
We also reject defendant's assertion that the Division failed to establish "alternatives to terminating parental rights have been thoroughly explored and exhausted." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). The evidence established that the Division discussed with John's aunt and uncle a KLG under N.J.S.A. 3B:12A-1 to -7. KLG is "an alternative, permanent legal arrangement for children and their caregivers," which "does not require the termination of parental rights" but transfers to a caregiver "certain parental rights" and allows parents to have "some ongoing contact with the child." N.J.S.A. 3B:12A-1(b).
KLG was not available here because John's aunt and uncle expressed an unequivocal desire to adopt. N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127, 130 (2011). KLG is only proper if "adoption of the child is neither feasible nor likely." Id. at 137 (quoting N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 509 (2004)). Where, as here, "the permanency provided by adoption is available, [KLG] cannot be used as a defense to termination of parental rights." P.P., supra, 180 N.J. at 513.
The record reflects that Aunt Lucy and Uncle Sean were informed of KLG and indicated they wished to adopt John. Additionally, defendant does not argue that the Division failed to investigate other relative placements, and there is nothing in the record to suggest defendant identified anyone as a placement option. Moreover, Gruen testified that he did not support defendant continuing to have parenting time with John because defendant would not "promote any harmony with the foster family or the adoptive family" due to Ralph's dislike for Aunt Lucy and Uncle Sean. Thus, because adoption was available, KLG was not a viable alternative for the Division to undertake. T.I., supra, 423 N.J. Super. at 130.
We are therefore satisfied that the court correctly determined that the Division established by clear and convincing evidence the third prong of the best interests standard. N.J.S.A. 30:4C-15.1(a)(3).
D. Prong Four
The fourth prong of the best interests of the child standard requires the Division to show that termination of defendant's "parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). Termination of parental rights poses a risk to children due to the severing of the relationship with their natural parents, but it is based "on the paramount need the children have for permanent and defined parent-child relationships." K.H.O., supra, 161 N.J. at 355 (quoting J.C., supra, 129 N.J. at 26).
Thus, "the fourth prong of the best interests standard [does not] require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid. The court must consider and balance whether "the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents." Ibid.
Here, there is sufficient credible evidence in the record supporting the trial judge's finding that the Division established prong four of the best interests of the child standard. Defendant's singular argument to the contrary is that the court should not rely upon Gruen's bonding evaluation because he was prejudiced against defendant. We reject this argument because the court found Gruen to be a credible witness, and there was clear and convincing evidence supporting the court's finding that termination of defendant's parental rights, including parenting time, will not do more harm than good.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION