Opinion
DOCKET NO. A-4647-12T4
02-19-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. D.A., Defendant, and B.J., JR., Defendant-Appellant IN THE MATTER OF GUARDIANSHIP OF A.C.J., A minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; David Futterman, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Janet L. Fayter, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Nugent.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-0133-13.
Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; David Futterman, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Janet L. Fayter, Designated Counsel, on the brief). PER CURIAM
Defendant, B.J., Jr., appeals the Family Part order terminating his parental rights to his child, A.C.J., born in September 2007. Defendant contends that the Division of Child Protection and Permanency (the Division) did not prove that termination of his parental rights is in the best interests of A.C.J., as codified in N.J.S.A. 30:4C-15.1(a)(1)-(4). Specifically, defendant argues that the Division failed to establish that it either made "reasonable efforts to provide services to help . . . [him] correct the circumstances which led to the child's placement outside the home," N.J.S.A. 30:4C-15.1(a)(3), or that terminating his parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). Substantially for the reasons explained by Judge Linda G. Baxter in the oral decision she delivered at the close of the guardianship trial, we affirm.
I.
Following her birth in September 2007, A.C.J. lived with her mother, D.A., for four years. In September 2011 the Division removed A.C.J. and placed her with her maternal grandparents, with whom she has since remained. Defendant has had no significant involvement in his daughter's life. In December 2008, when A.C.J. was fourteen months old, defendant was incarcerated on drug distribution charges and he has remained in jail since then. He is currently serving a thirteen-year custodial term with six years and six months of parole ineligibility for a second-degree crime, and a consecutive seven-year custodial term with three years of parole ineligibility for a third-degree crime. The earliest date he will be eligible for parole is May 17, 2018.
The parties do not dispute the events that culminated with the Division removing A.C.J. from her mother's home. Defendant was in jail when those events occurred. In February 2011, the Division received information that the mother, D.A., was smoking marijuana around A.C.J., was taking prescription pills, and was a "heavy alcoholic even when the child . . . [was] in her care." Although the Division determined that the allegations were unfounded, it received another referral six months later.
On August 2, 2011, the Division received a report that D.A. was abusing pills and that her neighbors had seen A.C.J. wandering outside of the apartment where they lived. Neighbors who returned A.C.J. to her home found her mother "passed out" inside the apartment. During the Division's ensuing investigation, D.A. admitted that she used cocaine, marijuana, and opiates. The Division learned that D.A.'s boyfriend, with whom she lived, verbally and physically abused her, once wielding a pair of scissors and threatening to kill her. He also walked around the house naked in front of A.C.J. During one domestic violence incident, when A.C.J. tried to help her mother, the boyfriend grabbed A.C.J. by the hair and pushed her down. The boyfriend had hurt A.C.J. more than once.
D.A. could not stop abusing drugs. In September 2011, about a month after the Division began investigating the second referral, D.A. signed out of an inpatient drug program against medical advice. The Division removed A.C.J. and placed the child with her maternal grandparents. The next day D.A. was incarcerated. Consequently, the sole remaining adult in the home where A.C.J. had lived was her mother's boyfriend, a violent man who walked around the house naked in front of the child.
The Division filed a verified complaint seeking custody, care, and supervision of A.C.J., which it obtained at a hearing two days later. The order awarding custody, care, and supervision of A.C.J. to the Division stated that defendant, who was not present, was incarcerated. The order prohibited the mother's boyfriend from having any contact with A.C.J. and directed defendant and A.C.J.'s mother to disclose to the Division any relatives who might be available as potential caregivers.
During the ensuing year, the Division made available to A.C.J.'s mother a host of services, including substance abuse evaluations and treatment, psychological evaluations and treatment, and domestic violence counseling. The Division also arranged for parenting time. Despite the Division's efforts, A.C.J.'s mother was unable to provide A.C.J. with a stable and secure environment. D.A. was, for the most part, non-compliant with court-ordered substance abuse services.
In November 2012, the Division filed a guardianship complaint seeking termination of both parents' parental rights followed by adoption. Two months after the Division filed the guardianship complaint, D.A. voluntarily agreed to an identified surrender of A.C.J. to her maternal grandparents.
Defendant did not participate to any great extent in the protective services litigation. After the Division filed its initial complaint in October 2011, defendant waived his appearance for the return of the order to show cause. Although represented by counsel, defendant did not appear at the fact-finding hearing in January 2012. He appeared at two compliance review hearings in 2012, but waived his appearance at the September 2012 permanency hearing where the Division presented its plan for terminating his parental rights and having A.C.J.'s grandparents adopt her.
At the guardianship trial, the Division introduced voluminous documentary exhibits, presented the lay testimony of Division caseworker Charmaine Bryant, and presented the expert testimony of Linda R. Jeffrey, Ph.D. Dr. Jeffrey had performed a psychological evaluation of defendant as well as bonding evaluations of both defendant and the maternal grandparents with A.C.J. Defendant presented no evidence.
The Division caseworker recounted the events that had resulted in the Division removing A.C.J. from her mother's home as well as the events that had resulted in the Division's decision to seek termination of defendant's parental rights followed by adoption. Dr. Jeffrey explained the conclusions she reached as the result of her evaluations.
Based on her psychological testing and evaluation of defendant, Dr. Jeffrey concluded that he could not provide a minimal level of safe parenting for A.C.J. Dr. Jeffrey diagnosed defendant with adjustment disorder, which, as she explained, meant that he was unable to master the tasks necessary to perform at his developmental stage, namely, as an adult. The "tasks" included the ability
to be economically self-reliant, or to obtain support related to special needs, to be able to provide a safe context for
parenting, to be able to have housing, for example, that is stable and that can be a safe place for parenting, to be able to conduct one's relationships in a rule-governed and non-violent manner, to be able to engage in non-violent or rule-governed behavior generally, in other words, to have the adjustment to be able to serve, for example, in a parenting capacity evaluation, be able to serve as a model of rule-governed behavior for a child.
Dr. Jeffrey also diagnosed defendant as suffering from anti-social personality disorder with narcissistic features. She explained that anti-social personality disorder "refers to whether an individual has the ability and displays the ability to be mindful of the rights of other individuals and to govern one's behavior in relationship to the rights of other people."
According to Dr. Jeffrey, those diagnoses and defendant's impaired ability to function in areas such as work, relationships, ability to exercise appropriate insight, and age-appropriate judgment, demonstrated that he had "deficits in areas of parenting capacity that are significant for a minimal level of safe parenting." Dr. Jeffrey's conclusions were supported by the bonding evaluation she conducted with defendant and A.C.J.
During the bonding evaluation of defendant with A.C.J., defendant asked A.C.J., who was then five years old, what she would do if somebody threatened her with a gun. When she asked defendant if he was a bad person, he repeated the question and said no. Defendant was a stranger to A.C.J., and she was afraid of him. Defendant tried to ease her fears, but was unable to do so, because he repeatedly referred to people that she did not know. He then asked her about her mother's boyfriend, who had assaulted her, and asked her what she would do if someone hurt her with a gun. He then continued to talk about her mother's boyfriend's violence. Although defendant said that he missed A.C.J., she did not respond by demonstrating any affection for him. After talking to her about what she wanted to be when she grew up and other innocuous subjects, defendant talked about seeing her mother's boyfriend in jail. He again asked A.C.J. what she would do if somebody tried to hurt her with a gun. She responded that she would call the police.
Dr. Jeffrey pointed out that defendant's conversation with his daughter was "developmentally inappropriate." In Dr. Jeffrey's opinion, defendant "was not demonstrating parenting skill, he was not demonstrating the ability to be attuned to interact with the child in an age-appropriate way." Significantly, A.C.J. displayed no attachment to defendant. Rather, "she expressed fear, nervousness and curiosity."
In contrast, Dr. Jeffrey's bonding evaluation of A.C.J. and her grandparents demonstrated that she had developed a substantial and significant attachment to them. The doctor conducted the evaluation on the same day that she conducted the evaluation with A.C.J. and defendant. When A.C.J. saw her grandparents, she went to them immediately, became very happy, and hugged them both. A.C.J. was involved in her own activities during the session, but would bring things to them, such as pictures she had drawn, to seek their approval. Dr. Jeffrey learned that the grandparents had reorganized their own priorities so that they could focus on providing for the needs of A.C.J. and D.A.'s other child. They had changed their own life plans and were committed to doing whatever was necessary to ensure that the children had a good future, including adopting them.
Dr. Jeffrey concluded that it was highly unlikely that severing defendant's relationship with A.C.J. would cause serious and enduring harm.
Based upon the Division's evidence, Judge Baxter found that the State had proved by clear and convincing evidence the statutory criteria for terminating defendant's parental rights. Judge Baxter entered a confirming order from which defendant appealed. The Division and the Law Guardian oppose defendant's appeal.
II.
Defendant argues that the Division failed to prove by clear and convincing evidence two of the four statutory criteria for terminating his parental rights. He asserts that Division caseworkers did not meet with him, inform him of his daughter's progress in foster care, or assess potential relatives who might be willing to provide the support required by his child. He also asserts that in deciding that termination of his parental rights would not cause his child any harm, the judge failed to consider that he had not had the opportunity to bond with the child, and that terminating parental rights "is a harm in and of itself."
We begin by recognizing that the constitutional right of parents to raise their children "is a right tempered by the State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008)). The State may, in some instances, exercise its parens patriae responsibility by terminating one's parental rights. To do so, however, the State must prove to a judge by clear and convincing evidence that terminating parental rights is in the best interests of the child. N.J.S.A. 30:4C-15.1(a); F.M., supra, 211 N.J. at 447-48; N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 505-06 (2004).
The best-interests standard is codified in N.J.S.A. 30:4C-15.1(a), which requires that the State establish four factors:
(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. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division 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.
These four factors "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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
When we review a trial court's application of the statutory criteria to the court's findings of fact, the scope of our review is limited. F.M., supra, 211 N.J. at 448-49. We "must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court." P.P., supra, 180 N.J. at 511. We may not disturb the trial court's findings "unless they are so wholly unsupportable as to result in a denial of justice." Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)) (internal quotation marks omitted). Even where the appellant "allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," deference must be afforded unless the court "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citations omitted) (internal quotation marks omitted). See also N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 80 (App. Div. 2013).
Judge Baxter carefully reviewed the Division's evidence and found that termination of defendant's parental rights was in A.C.J.'s best interests, as codified in N.J.S.A. 30:4C-15.1(a) and explained in our case law. Judge Baxter's decision "is based on findings of fact which are adequately supported by the evidence," R. 2:11-3(e)(1)(A), and her decision not to terminate defendant's parental rights "falls squarely within the permissible bounds of discretion accorded to the family court." F.M., supra, 211 N.J. at 454.
Defendant's primary argument is that the Division did not make reasonable efforts to provide him with services to correct the circumstances which led to A.C.J.'s removal from her mother and placement with her grandparents. As Judge Baxter found, the harm facing the child was twofold: she lived with both a mother who was incapable of providing supervision and security due to her drug addiction, and an adult prone to physical violence who thought nothing of being nude in front of her; and she was deprived of her parents' nurture and care due to her mother's addiction and defendant's incarceration. Due to defendant's lengthy incarceration, he was unable to either eliminate the harm facing A.C.J., or to provide her with a safe and stable home. The evidence more than amply supported Judge Baxter's determination that delaying A.C.J.'s permanent placement until defendant was released from jail would further harm the child. As the Supreme Court has stressed, "the attention and concern of a caring family is 'the most precious of all resources.'" In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 613 (1986)). "A parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Ibid.
Defendant's argument that the Division made no efforts to provide him with services is unavailing. The Division focused its reunification efforts on A.C.J's mother, who was the primary caretaker and the only parent capable of performing that function. By doing so, the Division acted well within its statutory authority. See D.M.H., supra, 161 N.J. at 393.
We have "recognize[d] the difficulty and likely futility of providing services to a person in custody." N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 535-36 (App. Div. 2006). Moreover, "[e]ven if the Division had been deficient in the services offered [to the non-custodial parent], reversal would still not be warranted, because the best interests of the child controls." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div.), certif. denied, 192 N.J. 68 (2007). Here, the child's best interests were served by placing her with loving and nurturing grandparents who are committed to adopting her. In contrast, defendant, who frightened A.C.J. and was unable to communicate with her in an appropriate manner, could provide her with neither a safe nor nurturing environment due to his incarceration.
Defendant also asserts that the Division failed to prove by clear and convincing evidence that termination of his parental rights will not do more harm than good. Judge Baxter's decision to the contrary was more than amply supported by the testimony of the Division's expert. That argument, as well as defendant's remaining arguments, are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION