Opinion
DOCKET NO. A-5090-13T3
02-24-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.A., Defendant-Appellant and D.B., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF Jm.A. and Jv.A., Minors
Joseph E. Krakora, Public Defender, attorney for appellant (Deric Wu, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Joel Clymer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors Jm.A. and Jv.A. (Cory H. Cassar, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Manahan.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 the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-60-14. Joseph E. Krakora, Public Defender, attorney for appellant (Deric Wu, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Joel Clymer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors Jm.A. and Jv.A. (Cory H. Cassar, Designated Counsel, on the brief). PER CURIAM
Defendant, J.A., the biological father of Jm.A. and Jv.A., appeals from a judgment terminating his parental rights and granting guardianship to plaintiff, New Jersey Division of Child Protection and Permanency (the Division). On appeal, defendant asserts the Division did not prove by clear and convincing evidence the four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a). Specifically, defendant argues the Division did not provide him with any reunification services and the termination will do more harm than good. The Law Guardian supports the termination on appeal, as it did before the trial court.
In a comprehensive oral decision, Judge Robert P. Figarotta found the Division had satisfied the four prong test by clear and convincing evidence and held that the termination was in the children's best interests. In re Guardianship of K.H.O., 161 N.J. 337, 354 (1999). We agree. Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition adequately supports the termination of defendant's parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2009) (holding that a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial and credible evidence in the record as a whole). Accordingly, we affirm.
Defendant has spent little time with the children since their births. Jm.A. was born in September 2009 and Jv.A. was born in August 2012. Both children have been in the continuous care of their maternal great aunt and uncle since their removal from their mother, D.B.'s care in August and September 2012. On March 24, 2014, D.B. entered a voluntary identified surrender of both children to their relative caregivers.
Defendant has spent little time with his children primarily due to his substantial criminal history that predates the birth of the children. He has been incarcerated on various charges for most of the children's lives. When the Division became involved with the family in May 2012, defendant was not living in the home. The record is replete with proof that defendant was absent from the care of his children even during those times when he was not incarcerated. Defendant's most recent incarceration was in April 2013. Defendant is charged with conspiracy to murder, racketeering, as well as substance abuse. He remains incarcerated.
On September 17, 2013, the Division filed a complaint seeking guardianship of both children. The court granted the application.
On January 23, 2014, defendant was brought from jail for a case management conference. Defendant requested visitation starting with correspondence between he and the children. The court granted defendant's request to communicate by letter but did not approve visitation at the jail.
The Division referred defendant for a psychological evaluation with Barry Katz, Ph.D. During the May 2, 2014, evaluation defendant acknowledged "he is accused of being a member of the blood gang in his current criminal case," although he denied this to be true. When asked how he got all the current charges against him, defendant said, "that the murder was the result of an ongoing beef between two gangs and that everyone that was arrested had some association with the members of that gang."
At the May 27, 2014 guardianship hearing, William Flores, caseworker for the Division, testified about defendant's absence from the children and to the prior caseworker's efforts to locate defendant. Flores stated that D.B. advised the caseworker that defendant had been released from prison on December 4, 2012, but she did not know his whereabouts. The caseworker also asked the caretakers if they had any contact information. They had advised that defendant "has called but he had called from multiple phone numbers." The caseworker met with defendant at the courthouse on March 12, 2013, and advised him he was "supposed to give her a call once he was released to schedule a psychological and substance abuse evaluation." Defendant reportedly "had just gotten a new phone and at the time they exchanged contact information." Flores testified there was no period of time that defendant ever exercised care of the children.
Dr. Katz testified that defendant "is not able to care for his children at this time or in the foreseeable future." In support of this conclusion, Dr. Katz noted that Jv.A. does not recognize defendant even as a "familiar figure" and Jv.A. reacted with a "fear and discomfort" that defendant was "unable to alleviate." Dr. Katz testified that Jm.A. "seemed to recognize" that defendant "was somebody that he may have known, but Jm.A. denied that [defendant] ever lived with him." Dr. Katz testified to defendant's "over evaluating his competency or his involvement or minimizing his problems." Defendant was inconsistent with his reporting of how often he saw the children and the extent of his criminal history. While noting a "lack of bond or attachment" to defendant, Dr. Katz observed the children to have a "secure and stable attachment" to their caretakers and viewed them as "parental figures and as primary nurturing figures."
Dr. Katz stated the children had bonded with their prospective adoptive parents and that the caregivers "expressed very strongly" that they preferred to adopt the children instead of a kinship arrangement because it would be more stable for the children. Dr. Katz opined the children would experience serious and enduring trauma if they were to be removed from their caregivers. He concluded that defendant would not be able to help the children overcome this loss and this would be a serious and enduring harm to them. Dr. Katz concluded the termination of defendant's parental rights to the children "would have minimal to no effect" on them.
Although "[a] parent's right to enjoy a relationship with his or her child is constitutionally protected," K.H.O., supra, 161 N.J. at 346, this right is not absolute. In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). The state, as parens patriae, has the responsibility to protect minor children from serious physical or emotional harm. Ibid. The exercise of this responsibility, in some cases, requires that the parent-child relationship be severed. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).
In termination cases, the state must "demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm . . . to the child." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Furthermore, the State must present sufficient evidence to show that the "best interests" of the child would be substantially prejudiced if parental rights were not terminated. A.W., supra, 103 N.J. at 603.
In evaluating the best interests of the child, a four-prong standard, codified in N.J.S.A. 30:4C-15.1(a), must be established. This standard allows for termination when the state proves, by clear and convincing evidence that:
(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 that 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 [D]ivision 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.
[Ibid.]
Our review of the findings of fact made by a trial judge in family cases is limited. J.N.H., supra, 172 N.J. at 472. We afford deference to a trial court's findings of fact because the trial court 'has the opportunity to make first-hand credibility judgments about 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). When the trial court's findings of fact are supported by adequate, substantial and credible evidence, they are binding on appeal. J.N.H., supra, 172 N.J. at 472.
Here, as to the third-prong, we reject as meritless defendant's argument that the Division failed to provide him with services essential to the reunification of the family. Rather, the record supports that the Division made efforts at reunification despite defendant's incarceration and his pronounced laxity in his parenting role. That the efforts were unsuccessful was not due to a lack of effort by the Division, but rather to defendant's lifestyle choices which made him a "stranger" to his children.
We recognize, as did Judge Figarotta, that incarceration alone, without particularized evidence of how a parent's incarceration affects each prong of the best interests standard, is an insufficient basis for terminating parental rights. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 556 (2014) (citing In re Adoption of Children by L.A.S., 134 N.J. 127, 137-38 (1993). The standard for termination of parental rights is not any different when the parent is incarcerated. Id. at 559 (citing N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 240-43 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011)). "Once a parent is imprisoned, a relationship with one's children that was nonexistent prior to incarceration will not likely be fostered." T.S., supra, 417 N.J. at 243 (quoting L.A.S., supra, 134 N.J. at 139).
In reaching his determination, the judge properly cited the factors enunciated in L.A.S. and reinforced in J.G. when evaluating whether defendant's incarceration "supports or cautions against" such termination. R.G., supra, 217 N.J. at 556.
We turn to defendant's second argument — the Division failed to prove that terminating his parental rights would not do more harm than good. The fourth statutory prong requires the court to determine whether termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). This prong "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The question is "whether a child's interest will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008).
The ultimate determination to be made under the fourth prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. Weighing the potential harm from terminating parental rights against separating the child from foster parents requires expert testimony on the strength of each relationship. Ibid. When a termination action is based on parental unfitness rather than bonding, the proper inquiry under the fourth prong focuses on the child's need for permanency and the parent's inability to care for him or her in the foreseeable future. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996).
Here, the trial judge relied, among other evidence, on Dr. Katz's un-rebutted expert opinion that there would be no harm in terminating the parental rights. The court concluded that terminating parental rights to free the children for adoption will not do more harm than good. We find ample support in the record that prong four was met.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION