Opinion
DOCKET NO. A-4863-10T3
02-25-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. L.D.C., Sr., Defendant-Appellant, and M.D. and D.J.T., Sr., Defendants. IN THE MATTER OF THE GUARDIANSHIP OF C.T., D.T., J.C. and L.C., Minors.
Ryan T. Clark, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Clark, on the brief). Deirdre A. Carver, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Carver, on the brief). Hector Ruiz, Designated Counsel, argued the cause for minors J.C. and L.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Ruiz, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Sabatino and Maven.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FG-13-68-09.
Ryan T. Clark, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Clark, on the brief).
Deirdre A. Carver, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Carver, on the brief).
Hector Ruiz, Designated Counsel, argued the cause for minors J.C. and L.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Ruiz, on the brief). PER CURIAM
Defendant L.D.C. appeals from an order of the Family Part terminating his parental rights to his son, L.C., and daughter, J.C. We affirm.
Responding to a referral that defendant and the biological mother M.D. were abusing and neglecting their children, and that defendant physically abused M.D., on March 1, 2007, the Division of Youth and Family Services (Division) conducted an emergency removal of the children on the grounds of domestic violence, physical abuse of the children, and lack of heat in the apartment. On March 5, 2007, the court ordered L.C., who was one month old at the time, and J.C., who was one year old, removed from M.D.'s care due to unsafe and unsanitary living conditions, lack of heat in the home, physical abuse of the children, domestic violence and substance abuse. J.C. and L.C. were placed with M.D.'s sister and brother-in-law and the Division was awarded custody of the children.
In addition to L.C. and J.C., M.D. had three other children who are not the subject of this appeal.
A reorganization of the Department of Children and Families under L. 2012, c. 16, effective June 29, 2012, changed the name of the Division of Youth and Family Services to the Division of Child Protection and Permanency (DCPP).
M.D. was in a relationship with defendant at the time, but he did not live with her.
Approximately one-and-one-half years later, on July 30, 2008, the court relieved the Division of its obligation to make reasonable efforts to reunify defendant with his children and to provide him services because he had failed to cooperate with the agency. The court also changed the family plan from reunification to termination of parental rights followed by adoption. Accordingly, the Division filed a complaint for guardianship against M.D. and defendant on October 30, 2008.
In March 2009, the Division contacted defendant's mother, D.C., as a potential caregiver for the children, and conducted a background check on her. She was to contact the Division if she was interested in being involved; however, D.C. never contacted the agency.
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At the conclusion of trial, the court found that termination of defendant's parental rights was in his children's best interest. The court found that defendant was a violent individual who used and sold drugs from the home, allowed the children to live in dangerous and unsanitary living conditions, and made no effort to correct his behavior. Indeed, he had refused to acknowledge that he had done anything wrong or that he needed any help. In contrast, the court found that it was in the children's best interests to return them to M.D. because she had made progress in her effort to become a capable parent. Consequently, the court dismissed the Division's complaint against M.D. and returned J.C. and L.C. to her, noting further that through that placement, the children would benefit from and retain the relationships with the families who had cared for them.
Specifically, the evidence adduced at trial revealed that during the hearing, defendant was serving a five-year term of imprisonment with a three-year period of parole ineligibility. This sentence had been imposed on defendant in accordance with a plea agreement wherein he agreed to plead guilty to possession of a controlled dangerous substance (CDS) with intent to distribute, unlawful possession of a weapon and criminal mischief. These convictions stemmed from an incident in December 2008 wherein defendant restrained M.D. throughout the night and held a gun to her head while telling her to call the children to say good-bye to them. The following morning defendant and M.D.'s boyfriend had a physical altercation and police found the gun that defendant had used to threaten M.D. Police also found drugs in defendant's coat.
While incarcerated, defendant had been evaluated by Dr. Alan Lee, a psychologist, on April 8 and May 6, 2009. According to Dr. Lee, defendant presented as "self-absorbed," "egocentric," "incredibly angry and hostile." He appeared to "struggle with effectively expressing his anger and feelings or even realizing the nature and origins of his feelings." Defendant was "prone to intense emotional reaction and displays" and appeared "controlling, domineering and manipulative."
Dr. Lee recommended that the children not be reunified with defendant. He also recommended that defendant receive "protracted" anger management, domestic violence and parenting counseling; twelve to eighteen months of weekly counseling to address "deep-seated maladaptive personality and character traits" and to address his "cognitive distortions, ways of criminal thinking, and hedonistic and self-serving ways." Finally, Dr. Lee recommended substance abuse treatment and regular urine screenings.
These findings were largely consistent with an earlier evaluation of defendant on July 27, 2007, by Dr. Chester Sigafoos, a psychologist, who diagnosed defendant with the following: impulse control disorder, physical abuse of adult and child, adult anti-social behavior, narcissistic personality disorder, obsessive compulsive personality traits, histrionic personality features, schizoid personality features, and problems with primary support groups. Dr. Sigafoos concluded that defendant could not parent children and his past behavior with the children could have caused them "significant enduring harm." He was "in need of skills training, psychological intervention, monitoring and treatment of substance abuse." However, Dr. Sigafoos believed that defendant would resist therapy because of his tendency to deny that he had any issues that he needed to address. This rendered his prognosis "poor."
Thus, the only experts who evaluated defendant and testified both opined that he was a danger to his children, and there was little hope that he would change.
Although no bonding evaluation was performed, there is no evidence that defendant enjoyed any kind of bond with his children. Defendant had never lived with his children prior to their removal from M.D.'s care. Indeed, the children were removed at a very young age: J.C. was only fifteen months old and L.C. was just born. After ten months of not seeing his children by his own choice, on January 11, 2008, defendant finally began attending visitation, supervised by Preferred Children Services. However, the visits only further revealed defendant's inability to parent. He demanded affection from J.C., and when she continually refused him, he blew in her face and threatened to withhold things from her, like food and drinks. He denigrated the children by calling them names like "prissy" and "spoiled" and refused to show L.C., who was just a year old, any type of affection because they were "men." Indeed, he refused to hold L.C. because he believed that the infant could, and should, walk. He offered no emotional support to the children when they cried. And he left it to M.D. to take care of their basic needs like changing diapers and wiping their runny noses. Eventually, both children refused to visit with defendant and all visitation ceased, in any event, in December 2008 when defendant was arrested and incarcerated.
At the close of evidence, the court issued an order terminating defendant's parental rights as to J.C. and L.C. With respect to the four prongs of the "best interest" test, N.J.S.A. 30:4C-15.1(a), the court concluded that J.C. and L.C. were, and would continue to be, harmed by their relationship with defendant. Defendant did not provide financial or other support for his children. He allowed them to live in an unsafe, unclean and substandard home with no heat, holes in the floor, and an untrained dog. Moreover, he smoked marijuana in M.D.'s home in front of the children and sold drugs out of her home. And although he denied that domestic violence was an issue, he used physical force against M.D. in the home, having thrown a knife at her while pregnant and having kicked her in the groin just after she had given birth to J.C.
The court also found the Division made reasonable efforts to provide services to defendant but that defendant refused to cooperate with the agency. In fact, when M.D. was pregnant with J.C., defendant refused to allow M.D. to tell the Division where the child would be born. He also refused to allow her to sign any case plan or other documents with his name on them. After the children were removed, he refused to visit them and would not allow the Division to contact him.
The Division offered defendant parenting classes, counseling and psychological evaluations, yet he refused these services. Worse yet, he insisted that the Division stop contacting him and, by his own admission, avoided the agency. In fact, it was not until his incarceration that defendant decided to participate in substance abuse counseling. And although he complains that the Division made no effort to place the children in his mother's care, the fact is that the agency had contacted her and she made no effort to follow up with the Division as requested. Further, the children were secure and well-cared for by the family they knew, and there was no reason to disrupt that arrangement. Thus, the court found no reasonable alternative to terminating defendant's parental rights.
Finally, as to the fourth prong, the court found no evidence that the children would be harmed by terminating defendant's parental rights. On the contrary, maintaining the relationship would expose the children to continuing risk of harm, according to the undisputed expert proof.
On appeal, defendant argues that the evidence did not support a finding that it was in the children's best interest to terminate his parental rights. Additionally, he argues that his trial counsel was ineffective in representing him.
We reject these arguments and affirm substantially for the reasons stated by Judge Terence P. Flynn in his oral opinion on April 25, 2011. We add only the following comments.
In reviewing a trial court's findings on the best-interest-of-the-child standard, we must "decide whether the findings made could reasonably have been reached on substantial credible evidence present in the record when considering the proofs as a whole, giving due regard to the opportunity of the trial judge to determine credibility." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
Governed by this measure, we are satisfied that sufficient credible evidence exists to support the Family Part judge's termination decision. Suffice it to say, defendant's unfitness to parent and inability to remove the harm he poses to his children is evident from his history of violence, persistent involvement with and use of drugs, lack of cooperation with the Division, and failure to provide emotional or financial support for his family. Furthermore, he repeatedly rejected Division efforts to provide services to help correct these conditions and circumstances which led to the children's removal in the first instance. There being no reasonable alternative or demonstrable harm to the children resulting therefrom, the termination of defendant's parental rights was proper.
Defendant's remaining argument alleging ineffective assistance of trial counsel for failure to obtain expert witnesses to conduct psychological and bonding evaluations is devoid of merit, not warranting extended discussion in this opinion. R. 2:11-3(e)(1)(E). Defense counsel tried to schedule a psychological evaluation for defendant but he could not find any doctor, save for Dr. Lee, who would conduct the evaluation at the prison. And nothing suggests that another psychologist would have rendered an opinion different from those of Dr. Lee and Dr. Sigafoos.
Finally, as for the lack of a bonding evaluation, nothing in the record suggests that defendant had any bond with his children, and as Dr. Lee testified, defendant himself never requested a bonding session. He only expressed a desire to bond with his children, which implicitly acknowledges his own belief as to the lack thereof.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION