Opinion
DOCKET NO. A-0189-13T1
04-15-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.J.H., SR., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF G.H., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Chanell Branch, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Victoria R. Ply, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Tracye Wilson Elliot, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Rothstadt.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-30-13.
Joseph E. Krakora, Public Defender, attorney for appellant (Chanell Branch, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Victoria R. Ply, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Tracye Wilson Elliot, Designated Counsel, on the brief). PER CURIAM
Defendant J.J.H., Sr. (Jerome) appeals from the August 20, 2013 Family Part guardianship judgment which terminated his parental rights to his daughter, G.H. (Gabi), after a trial. Before the trial, Gabi's mother, A.Z. (Abigail), entered into an identified surrender of her parental rights in favor of Gabi's resource parents with whom Gabi has resided almost since her birth on January 31, 2012.
We have fictionalized the names of those involved to maintain their privacy.
Abigail is not involved in this appeal.
Jerome contends that his parental rights should not have been terminated because the Division of Child Protection and Permanency (Division) failed to prove each of the four statutory prongs contained in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The Division and Gabi's Law Guardian disagree and urge us to affirm the court's judgment. Having considered the record in light of the parties' contentions and applicable legal standards, we affirm.
I.
The Division's first involvement with Jerome and Abigail was with respect to the couple's only other child, J.J.H., Jr. (Jeffrey), born in June 2006. In August 2010, the Division received a referral indicating that Jerome had been arrested and incarcerated as a result of a drug raid at the home where he resided with Abigail and Jeffrey. The Division eventually substantiated neglect allegations against Jerome, determining he placed Jeffrey at risk of harm by having a young child in a bedroom where a controlled dangerous substance (CDS) was found. The court ultimately granted legal and physical custody of Jeffrey to his maternal grandmother, and he remains with her to this day. As a result, the Division closed the case with regard to Jeffrey on December 8, 2011.
At that time, Jerome and Abigail were both approximately eighteen years old.
On January 31, 2012, the Division received a new referral regarding a baby being born to Jerome and Abigail in a motel room, which was their permanent residence at the time. After Abigail and newborn Gabi were taken to the hospital, they both tested positive for opiates. Gabi was diagnosed with neonatal abstinence syndrome (NAS) due to maternal drug abuse and was hospitalized for an additional two weeks. She was later identified as having significant developmental delays with respect to her cognitive, motor, social, emotional and adaptive/self-help skills, and would undergo Early Intervention treatment for her special needs.
Neonatal abstinence syndrome (NAS) is defined as a group of symptoms found in a newborn who was exposed to addictive drugs while in the mother's womb. Neonatal Abstinence Syndrome, A.D.A.M. Medical Encyclopedia, PubMed Health, U.S. National Library of Medicine (April 7, 2014), www.ncbi.nlm.nih.gov/ pubmedhealth/PMH0004566. The substances pass through the placenta to the baby during pregnancy, causing the baby to become addicted along with the mother. Ibid. At birth, the baby is still dependent on the drug and, as a result, will experience symptoms of withdrawal. Ibid. The condition is similar to fetal alcohol syndrome, for babies of mothers who drink heavily during pregnancy. Ibid.
A Division caseworker spoke with Jerome and Abigail about the drug test results. Jerome related that Abigail woke up in pain at 5:45 a.m., and called 9-1-1 because she thought she was in labor. Ultimately, Jerome performed the delivery himself in the motel room, following instructions he received from emergency personnel over the phone before police arrived. At the time, Abigail admitted that she had not been under any prenatal care, and that she had taken just one Percocet one week before going into labor. Abigail related that she did not have financial resources to care for Gabi. Jerome also admitted that he had no supplies for the baby, even though he was employed as a driver.
In addition, Jerome informed the caseworker that he was out on bail following his arrest on January 20, 2012 for drug- related offenses. During the course of his arrest, according to Jerome, he ingested seventy Roxicodone and twenty Xanax pills, fearing that if he were caught with them, he would be incarcerated for a long time. Jerome was subsequently rushed to the hospital and transferred to a psychiatric ward, out of concern that it was a suicide attempt.
On February 7, 2012, the Division filed a Title Nine complaint and an application seeking immediate physical and legal custody of Gabi. Judge Madelin F. Einbinder granted the Division's request, and allowed supervised visits by Jerome and Abigail. The judge also ordered Jerome and Abigail to attend substance abuse evaluations.
N.J.S.A. 9:6-8.21 to -8.73.
Pursuant to the court's order, the Division took physical custody of Gabi when she was released from the hospital on February 13, 2012. It initially placed Gabi with her maternal great aunt, and thereafter with licensed resource parents, with whom she remains to this day. The resource parents wish to adopt Gabi.
The great aunt eventually became overwhelmed while caring for Gabi. She "tearfully" asked the Division to remove Gabi, as she was unwilling to adopt at the time. She later changed her mind, but was "ruled out" as a caretaker based on a background check by the Division.
Also pursuant to the order, on February 14, 2012, Jerome attended a substance abuse evaluation. He tested negative for illicit drugs and was referred to an outpatient treatment. On March 6, 2012, the court ordered the parents to comply with substance abuse treatment recommendations and to attend a psychological evaluation. The supervised visits remained in effect, and the court scheduled a fact-finding hearing for April 30, 2012.
According to the Division, Jerome's participation in treatment was only sporadic. Additionally, he attended just one visit on March 6, 2012, and failed to appear for four other scheduled visits in March. He also failed to attend a March 13, 2012 preparation session for a Family Team Meeting that was scheduled for March 14, which he also failed to attend. Later, Jerome appeared to be intoxicated during two supervised visits with Gabi. He denied being under the influence, and submitted to a urine screening. The results indicated tampering.
On April 27, 2012, Jerome attended a psychological evaluation conducted by David R. Brandwein, Psy.D. The doctor reported that Jerome's psychological functioning had been negatively impacted by his difficult childhood experiences, "[i]n particular, witnessing domestic violence; witnessing parental substance abuse; being exposed to chronic family conflict; and chronic homelessness." These experiences, the doctor opined, have led Jerome "to engage in behavior that violated the rules and laws of society . . . in order to acquire the resources and stability he wanted." Jerome said he began selling drugs before he was eighteen, and that he had been arrested numerous times for weapons and drug-related offenses. He also said he had been incarcerated once, for seven months in 2010 and 2011, after the drug raid on his home that first brought him to the Division's attention.
Dr. Brandwein believed that Jerome and Abigail had a co-dependent relationship "that appears to share characteristics of his parents' relationship and that has resulted in the couple behaving and living in a manner unsuitable for raising children." Specifically, he noted,
It is particularly worrisome that [Jerome] reported that he had no indication of [Abigail's] substance abuse; this either was a denial of reality and/or an indication that [Jerome] was so focused on his own needs in the relationship that he did not notice that his romantic partner was so impaired that she was exposing their unborn child to opiate medication.
He diagnosed Jerome with chronic posttraumatic stress disorder (PTSD), cannabis abuse, antisocial behavior, and as having narcissistic, histrionic, and dependent features. Standardized tests results revealed "that there [were] no cognitive issues that would prevent [Jerome] from meeting minimal parenting standards." He also did not present an active risk to abuse or maltreat Gabi. However, based on Jerome's criminal involvement, non-compliance with substance abuse treatment, and lack of resources to care for Gabi, the doctor could not recommend Jerome as an independent caretaker at that time, and advised that all visits should be supervised. He further recommended additional evaluations, substance abuse treatment, parenting skills classes, and a reevaluation in eight to twelve months. At the end of his report, Dr. Brandwein noted:
While it is a positive sign that [Jerome] has, according to his own report, stopped dealing drugs and is motivated to complete services requested by the Division, his repeated violations of the law, prior non-compliance with services, and tendency to focus on his own needs suggest that his prognosis to avoid further legal violations and comply with services is, at best, guarded.
Two days after the evaluation, the police arrested Jerome for possession of three "bricks" of heroin. He later pled guilty to the offense, and was incarcerated. Due his incarceration, he did not appear for the April 30, 2012 fact-finding hearing. At the hearing, Abigail voluntarily stipulated to abuse and neglect of Gabi by using drugs during her pregnancy, resulting in Gabi's NAS symptoms.
Jerome's maximum release date was April 2014. He was released on parole in October 2013.
The court subsequently held a fact-finding hearing as to Jerome only. After considering testimony from Division caseworkers, the court found by a preponderance of evidence that Jerome had abused or neglected Gabi because he had "fail[ed] to have any supplies or a feasible plan for the child after birth." Furthermore, "[h]is involvement with drug usage and dealing placed the child at risk of harm because the child was born withdrawing from drugs and required special care . . . and [Jerome] could not care for the child due to his own drug involvement."
The Division's initial plan for Gabi was reunification. However, Abigail tested positive for opiates on November 16, 2012, and then told the Division that she was considering surrendering her parental rights. In light of this, and Jerome's continued incarceration, the Division changed its permanency plan to termination of Abigail's and Jerome's parental rights followed by adoption. The court approved the plan on December 10, 2012, and on June 6, 2013, Abigail entered into an identified surrender of her parental rights.
In accordance with the plan, the Division filed a Title Thirty complaint for guardianship on January 23, 2013, seeking termination of Jerome's and Abigail's parental rights. Jerome subsequently applied for visitation with Gabi at the prison. Gabi's Law Guardian opposed the application. After conducting a hearing, the court denied visitation, reasoning that requiring "a fifteen-month old infant to travel two hours each way to a facility for a visit with someone she's virtually never met in her life to this Court does not appear to be in her best interests."
N.J.S.A. 30:4C-11.3 to -15.4.
On May 28, 2013, Dr. Brandwein conducted bonding evaluations with Gabi and her resource parents. Jerome's bonding evaluation occurred on August 2, 2012. On the same day, Dr. Brandwein conducted a follow-up psychological evaluation of Jerome and again recommended against reunification.
The doctor based his conclusion on the fact that Jerome would be incarcerated for at least two-and-a-half to seven months, and that Jerome's post-release plans for Gabi amounted to a "narcissistic fantasy." The doctor stated that Jerome's plan of leading a law abiding life is something that he had thus far been unable to sustain, and he pointed to Jerome's previous claims of doing so, shortly after which he was arrested and incarcerated. The doctor believed that Jerome's narcissistic and anti-social attributes would continue to make it difficult for him to establish a stable life for Gabi. He noted that Jerome blamed Abigail for Gabi's placement with a resource family, and did not seem to appreciate that his own behavior (committing another drug-related offense and being sent to prison) contributed to her placement. The doctor also noted that Gabi had formed secure bonds with her resource family, and no such bond existed with Jerome.
At the guardianship trial, Dr. Brandwein and Amanda Bristo, a Division caseworker, testified for the Division. Dr. Brandwein testified about his April and August psychological evaluations of Jerome, and the bonding evaluations. As to the first exam, Dr. Brandwein reiterated many of the observations in his report, and particularly noted,
Jerome said he had no idea Abigail was using drugs throughout the pregnancy. And when you're living with somebody, that seemed a little shaky for me, living with somebody, a close relationship. So I said, "How did you not know?" And he said, "Well, I was really out a lot and I really wasn't paying attention."
Regarding the second evaluation, Dr. Brandwein testified that Jerome was cooperative and patient throughout. The doctor brought up the fact that Jerome was arrested for possession shortly after their first evaluation session, during which he said he was no longer dealing drugs. In response, Jerome admitted he had lied, and that he was still dealing drugs at that time.
The doctor also testified about Jerome's participation in a cognitive behavior change program while in prison as well as a parenting program. He had also taken a forklifting class. In addition, Jerome told the doctor that his attitude had changed:
He described basically that his affect had improved, that his attitude had improved, and that he basically sees the error . . . of his ways. He knew that he could not keep living this lifestyle, that he had a family, and he had children, and he needed to change his act. That was the basic theme of the interview, "I'm better. I know I need to find a job at Burger King or McDonald's. I know it's a low paying job. I'm fine with that. I can't go back to drug dealing. I did it because I didn't want to struggle, and now I realize that that struggle is worth it. If I buy something for [Gabi], I want to be able to look at that and say I worked hard for that." . . . So he really basically said, "Hey I'm done with that life."However, the doctor also noted that Jerome said the same thing during the first evaluation.
When the doctor asked Jerome about the bond Gabi had formed with her foster parents, Jerome "said that there was totally a bond but if it was broken, she's young and he didn't remember anything from when he was a year and a half years old, so [Gabi] probably wouldn't remember that either." The doctor also testified that while Jerome acknowledged Gabi's speech delays, he was not sure if they were drug-related because speech issues ran in his family. He was not aware of her other delays.
In response to the doctor's inquiry about his future plans, Jerome said he would get a job and save for an apartment, estimating that it would take a month or two. Additionally, the doctor noted that "there seemed to be some improvement in his traumatic symptoms," and that his PTSD and cannabis use were in remission, though the latter was due to his incarceration.
Regarding the bonding evaluations, Dr. Brandwein conducted sessions between both Gabi and Jerome, and separately between Gabi and her resource parents. The evaluations were structured to allow observation of Gabi's interactions with each parent, followed by a "separation and reunion" to note Gabi's reaction to being separated from them. As to Jerome, Dr. Brandwein noted that he was "very good" with Gabi, and described him as playful and "engage[d] with her for the entire 45 minute session." However, while Jerome was affectionate with her throughout, Gabi never initiated affection. "She didn't really show a desire to stay close to [Jerome]." Moreover, when Jerome was asked to leave the room and return after a minute or two, she showed little response to the separation. Thus, based on his observations, the doctor concluded that Gabi and Jerome's relationship was not a "parent-child bond" but that of "a child and an unfamiliar caregiver."
Dr. Brandwein contrasted these findings to his bonding evaluations of Gabi and her resource parents. In both sessions, Gabi initiated and returned affection, and appeared to desire closeness with the parents. The doctor also found the parents to be playful and educational with Gabi. Additionally, he noted that Gabi was communicative with her resource mother. He observed no issues with separating Gabi from the resource father; however, after the separation and reunion from the resource mother, Gabi became more interested in interacting with her when she returned. Thus, the doctor testified that there was "a strong psychological bond" between Gabi and her resource parents, and that a parent-child relationship existed between them.
Dr. Brandwein ultimately concluded that Jerome "is not able to care for [Gabi] now and is not likely to be able to care for her in the foreseeable future." He based his conclusion on the fact that Gabi was the second child to be removed from his care; that his future plans were unrealistic, because he had never lived a "conventional" lifestyle; that he had avoided or shown no inclination to complete the programs and services recommended by the Division; and that he had deliberately lied about his drug dealing activities during the first evaluation.
He testified that bonds are important for a child of Gabi's age (then one-and-a-half), and that "[t]here would be a period of depression and loss [, and] most likely a regression in her skills" if she were separated from her resource parents. He added that in light of her significant delays, Gabi would need to continue her Early Intervention services. To this end, she would need a steady home and "the stability of a parent who wasn't necessarily shuttling around from motel to motel or from place to place," so as not to disrupt her treatment.
However, he also said that "it's difficult to say whether a bond broken at that point in time would cause enduring psychological stress." Moreover, "[i]f she were able to get stable consistent care from somebody else who would provide the same things as the foster parents provided, there's a possibility that it could be mitigated, but only a possibility." He concluded nonetheless that Jerome could not provide the level of stability and care that Gabi would need to mitigate the harm.
Bristo testified that Gabi's resource parents were willing to adopt her if it becomes legally possible. She described their home as being child-friendly, and said that Gabi appeared happy and was having her needs met. She also testified that the resource parents had helped maintain Gabi's relationships with several of her family members, including her maternal grandmother and her older brother. The resource parents intended to continue to maintain these familial relationships after adoption.
Bristo also testified that the Division had provided Jerome with opportunities to visit Gabi, but that he attended just four visits. He appeared intoxicated during one of them. Moreover, she stated the Division offered him substance abuse treatment, which he did not complete, and arranged for psychological examinations. However, the Division did not provide further services after Jerome was incarcerated.
Jerome testified on his own behalf, providing detail about the jobs he held prior to incarceration, and the apartments he previously held in his name. He also described the programs he participated in while incarcerated, stating that they "opened his eyes" to changing his lifestyle. Regarding the cognitive behavioral therapy class, Jerome said he learned "basically how to think positive in the most negative situations; how to overcome basically life scenarios where you're put in a rough position and instead of acting out negative, how to act positively in the situation to stay out of trouble; and things of that nature."
He stated that his goal with Gabi was to build a bond because he "didn't get visitation rights" in prison, and that it should only take "a couple of months to have money saved up for an apartment." Jerome acknowledged that he would not be reunified with Gabi right away, and that he would need time to get his life organized and to comply with services so that he could regain custody in the future.
When asked why he "only visit[ed] with [Gabi] four times from the time that she was born until April 2012," Jerome responded that he did not have steady employment, so when he obtained contract work, he took it and sacrificed visits to get income for the family. When asked why he waited until December 2012 to request visits with Gabi in the prison, he stated that he sought visitation with Gabi from the beginning, but was told that the county jail did not permit contact visitation. When he was later moved to prison, he assumed the same prohibition applied. However, when he learned that visitation was allowed, he immediately requested visits.
On August 20, 2013, the court delivered its oral opinion finding that the Division established by clear and convincing evidence all four prongs of the statutory best interests test, terminated Jerome's parental rights to Gabi, and granted the Division guardianship of Gabi. This appeal followed.
N.J.S.A. 30:4C-15.1(a).
II.
Before proceeding to Jerome's specific arguments, we set forth the standards that guide our review. Parents have a right "to raise a child and maintain a relationship with that child, without undue interference by the state[.]" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008). That right is fundamental, and protected under both the United States and New Jersey Constitutions. Ibid. Thus, the courts "have consistently imposed strict standards" in such cases, In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999), as termination of parental rights is considered an "extreme form of action," E.P., supra, 196 N.J. at 102, and "a weapon of last resort in the arsenal of state power." N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 447 (2012). However, that right is not absolute, but is "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." Ibid. (citing E.P., supra, 196 N.J. at 102).
"The focus of a termination-of-parental-rights hearing is the best interests of the child[,]" and the Division must "satisfy by clear and convincing evidence four factors, known as the best-interests-of-the-child test, set forth in N.J.S.A. 30:4C-15.1(a)." Id. at 447-48 (internal citation omitted). Those four statutory standards are:
(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 [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.
[N.J.S.A. 30:4C-15.1(a).]
These four "prongs" require a fact-sensitive analysis, and "are neither discrete nor separate [but] overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007) (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)) (internal quotation marks omitted). In applying these standards, we bear in mind New Jersey's strong public policy in favor of placing the child in a permanent and stable situation. K.H.O., supra, 161 N.J. at 357-58.
"We will not disturb the family court's decision to terminate parental rights where there is substantial credible evidence in the record to support the court's findings." E.P., supra, 196 N.J. at 104 (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We accord deference to the family court's findings of fact and credibility, in light of its opportunity to assess witnesses first-hand, and to develop a "feel of the case." Ibid. (quoting M.M., supra, 189 N.J. at 293). Moreover, we accord particular deference to the judge's fact finding in light of "the family courts' special jurisdiction and expertise in family matters[.]" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)) (internal quotations omitted). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' [will we] intervene and make [our] own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
Applying these standards to the instant matter, we are satisfied from our independent review of the record that substantial evidence existed to support the judge's conclusion about Gabi's best interests.
A.
Jerome argues that there was insufficient evidence to support the court's finding that he endangered Gabi's health or development, or that he will endanger her health or development going forward. Specifically, he cites N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145 (2010), and argues that his termination of parental rights should be reversed because it was Abigail's drug use that caused Gabi harm and necessitated her removal, and not his incarceration or any other acts by him. Our review of the record indicates otherwise.
Under the first prong, the Division must demonstrate harm to the child resulting from the parental relationship, "that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. This prong not only concerns physical harm, but also risk of harm to a child caused by a failure to provide day-to-day nurturing and a safe and caring environment for a prolonged period of time. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-07 (1986); see also In re Guardianship of D.M.H., 161 N.J. 365, 382-83 (1999) (first prong met where child was born addicted to heroin and "that harm was compounded by [the defendant's] persistent failure to perform any parenting functions and to provide nurture, care, and support for [the child] for over three years."). Moreover, "[a] parent has the obligation to protect a child from harms that can be inflicted by another parent." F.M., supra, 211 N.J. at 449.
"To satisfy this prong, [the Division] does not have to wait 'until a child is actually irreparably impaired by parental inattention or neglect.'" Ibid. (citing D.M.H., supra, 161 N.J. at 383). "[T]he focus is 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.
Contrary to Jerome's argument, his situation is dramatically different than the father in I.S., supra, in which the Court reversed the termination of the father's parental rights. 202 N.J. at 151. The child in that case was the result of an extramarital affair. Ibid. The father was initially unaware of the mother's pregnancy, and of her drinking and drug use during that pregnancy. Id. at 151-55. After being made aware he was the child's father, he made no attempt to become primary caretaker until the child had been in foster care for nine months. Id. at 155-60. However, he ultimately separated from his wife, who had refused to accept the infant, and was able to provide a safe home for the child going forward. Id. at 160-61. The I.S. court also determined that his delay in acknowledging the child did not cause the child harm. Id. at 171-72.
Unlike in I.S., supra, however, the evidence in this case demonstrated that Jerome had never been able to provide a safe and stable home for Gabi, and that despite his plans, he would not be able to in the future. Judge Einbinder ultimately found Jerome's credibility lacking, and determined that Jerome was "saying what he thinks everyone wants to hear, not what the reality is[.]" She stated that his future plans for himself and Gabi were a "hope not based in reality," and specifically noted that "[t]here is no mention or appreciation or consideration of [Gabi's] special needs." Moreover, the judge determined that were Gabi to be reunified with Jerome, "her health, safety, or development would continue to be endangered based upon her father's inability to remain out of jail or comply with services." Accordingly, she found clear and convincing evidence that Gabi's safety, health and development has been and would be endangered by her relationship to Jerome.
The judge's conclusions were well supported by the evidence. First, Jerome failed to adequately prepare for Gabi's birth by obtaining adequate supplies. After her birth, Jerome never developed a feasible plan for her care. He failed to demonstrate any ability or desire to provide Gabi with day-to-day nurturing, as evidenced by his repeated cancellations of scheduled visits; his failure to appear at family team meetings; his failure to comply with substance abuse treatment; and his choice to continue drug dealing, which led to his incarceration, all the while knowing he was facing scrutiny as a parent for that very behavior. Second, his alleged lack of awareness about Abigail's drug use while pregnant due to his being "out a lot" or because he "wasn't really paying attention," supports the judge's conclusion that he did not and could not care for Gabi in the future. Also, that a mere ten days prior to Gabi's birth, Jerome nearly died when he consciously chose to ingest a substantial amount of drugs rather than face additional drug charges clearly supported the court's decision.
Furthermore, there is substantial credible evidence in the record to establish that Gabi's health, safety and development would be endangered if the parental relationship continued. As the judge pointed out, Jerome made no mention of how he planned to address Gabi's special needs as a result of her drug exposure. Jerome's minimization of her developmental delays to Dr. Brandwein further established his inability to provide for her needs. Additionally, the record shows that Jerome has an extensive criminal past, and Dr. Brandwein concluded that his narcissistic, anti-social, and histrionic personality traits will likely result in further arrests, which would severely disrupt the stability and specialized care that Gabi requires. The judge found Dr. Brandwein's unrefuted testimony credible and persuasive, and there is nothing in the record to indicate otherwise.
According due deference to the family court's findings, there was sufficient, credible evidence in the record to support the judge's conclusion that Gabi's safety, health and development has been and would be endangered by placement with Jerome as contemplated by N.J.S.A. 30:4C-15.1(a)(1).
B.
Jerome also argues that the Division failed to prove by clear and convincing evidence that he was unwilling or unable to address the potential harm facing Gabi, in satisfaction of the second prong. N.J.S.A. 30:4C-15.1(a)(2). He says that he took steps to demonstrate his willingness to prevent any potential instability or harm by completing parenting skills and cognitive behavioral classes and job training while incarcerated. He contends that the trial court improperly placed little weight on his demonstrated efforts, and that he and Gabi did not have opportunity to bond as a result of the Division's failure to make visitation arrangements while he was incarcerated. Again, we disagree with his contentions, and we are satisfied that the court properly found that the Division met its burden as to the second prong.
Satisfying the second prong requires proof that either 1) "the parent is 'unwilling or unable to eliminate the harm'", or 2) "the parent has failed to provide a 'safe and stable home for the child' and a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). Also, proof "that the child will suffer substantially from a lack of stability and permanent placement and from the disruption of her bond with [her] foster parent" will satisfy the second prong. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 118-19 (App. Div.), (quoting K.H.O., supra, 161 N.J. at 363), certif. denied, 180 N.J. 456 (2004).
Consideration of the second prong compels an assessment of "parental unfitness," based on "indications of parental dereliction and irresponsibility" demonstrated by actions "such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 352-53. The inquiry is "whether that parent can raise the child without inflicting any further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App Div. 2006) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), certif. denied, 190 N.J. 257 (2007); see also, A.W., supra, 103 N.J. at 607. The court will focus on determining whether the parent has sufficiently overcome the initial harm that endangered the child's health, safety, or welfare, and is able to continue the parent-child relationship without recurrent harm. J.C., supra, 129 N.J. at 10.
"Concern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance" when determining fitness. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009). However, a child's best interests cannot be sacrificed because of a parent's inability to address potential future harms, despite his or her willingness to try. See C.S., supra, 367 N.J. Super. at 111.
Here, Judge Einbinder found that "it is clear from the testimony that [Jerome] has not been able to provide a safe and/or stable home for [Gabi]," in satisfaction of the second prong. In support, she relied on her finding that Jerome's plans did not comport "with the reality of his incarcerations and past issues," and that he was not fully appreciative of Gabi's special needs. She noted further that Gabi "has spent nine-tenths of her life in placement," and would be harmed by any further delay in permanent placement. She also noted Dr. Brandwein's uncontroverted testimony that a strong psychological bond existed between Gabi and her resource parents and that, as the doctor testified, Jerome would not be able to ameliorate any harm caused by separating Gabi from her resource parents "due to [Jerome's] pattern of behavior such as conduct problems as a child, his adult arrest history, and his outright attempts to be deceitful to Dr. Brandwein."
We agree with Judge Einbinder's conclusions, especially when considering the evidence that clearly established that Jerome lacks the ability to appreciate the duties required of him in caring for a special needs child. Jerome failed to acknowledge that Gabi even suffered from more than a speech delay, and made no mention of Early Intervention, which the doctor testified was vital for Gabi. The doctor further testified that in his expert opinion, Jerome would "absolutely not" be able to provide the level of stability and care that Gabi would require. The court accepted the doctor's opinion. We are satisfied that Judge Einbinder did not abuse her discretion in accepting the expert's opinion and that she relied on substantial credible evidence in finding that the Division satisfied the second prong. N.J.S.A. 30:4C-15.1(a)(2).
C.
Jerome also challenges the trial court's finding that the Division made reasonable efforts towards reunification, in satisfaction of the third prong. He argues that the court wrongly determined that his incarceration hampered the Division's efforts to implement services, and failed to consider the classes he took while incarcerated that were similar to those recommended by the Division. Furthermore, he argues that the Division made no effort to allow visitation while he was incarcerated, and that when he requested visitation, the Division and Law Guardian wrongly opposed the application. He says that a strong bond might have formed between himself and Gabi had it not been for the Division's intervention. Additionally, he says the court erroneously focused on a few visits he missed when he was not incarcerated, due to his work schedule. We reject these contentions and are satisfied that Judge Einbinder properly found that the Division met its burden as to the third prong.
The third prong requires clear and convincing evidence of the Division's reasonable efforts toward reunification. N.J.S.A. 30:4C-15.1(a)(3). "Reasonable efforts" are defined as "attempts . . . to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure." N.J.S.A. 30:4C-15.1(c). Such efforts include, but are not limited to:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development and health; and
(4) facilitating appropriate visitation.
[Ibid.]
"Consistent efforts to maintain and support the parent-child bond are central to the court's determination[,]" but the diligence of the Division's efforts are not measured by their success. D.M.H., supra, 161 N.J. at 393. Moreover, prolonged efforts cannot interfere with a child's right to permanency. "[A] child cannot be held prisoner of the rights of others, even those of his or her parents." C.S., supra, 367 N.J. Super. at 111. "Children have their own rights, including the right to a permanent, safe and stable placement." Ibid.
Based on Bristo's testimony, Judge Einbinder found "that the Division has made more than reasonable efforts to provide services to help [Jerome] correct his circumstances." The judge noted that the services offered by the Division were "hampered by [Jerome's] incarceration for his behavior and illegal actions as well as his choice to work over visiting with [Gabi] when he was not incarcerated." Furthermore, Jerome's "testimony failed to convince [the trial court] of . . . any sincerity in changing his previous lifestyle."
The substantial evidence contained in the record supports the judge's conclusion. Here, the Division offered Jerome substance abuse evaluations; a psychological evaluation; substance abuse treatment, with which he did not comply; urine screenings, one of which indicated tampering; and supervised visitations, several of which he missed, and one of which he allegedly appeared for while intoxicated. The judge acknowledged that the Division's attempts to provide services and facilitate visitations were impeded by defendant's choice of conduct that led to his incarceration. Furthermore, Jerome did not seek visitations with Gabi in prison until eight months into his incarceration.
The record also reveals that the Division considered alternatives to termination, and investigated and ruled out five relatives. The five relatives were ruled out for legitimate reasons, such as certain members of the household having disqualifying criminal records. No other relatives came forward offering to provide care.
Additionally, as already noted, the court properly considered the credible testimony of Dr. Brandwein and found that there was no realistic likelihood that Jerome would be capable of caring for Gabi in the near future. This weighs against prolonged efforts to reunify Gabi with Jerome. See K.H.O., supra, 161 N.J. at 357.
Based on the record, we are again satisfied that the trial court relied on substantial and credible evidence in determining that the State satisfied the third prong. N.J.S.A. 30:4C-15.1(a)(3).
D.
Finally, Jerome claims the Division did not meet its burden as to the fourth prong, requiring proof that termination of parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). He argues that the court placed too much weight on the need for permanency rather than Gabi's need to remain connected to her father. He relies on our decision in N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525 (App. Div. 2006), reversing the termination of a mother's parental rights. Jerome also contends he was not allowed to visit with Gabi in prison, and that he took significant steps to create a stable life for her. He says he should not be punished by having his parental rights terminated without first being given the opportunity to prove his parenting capabilities after his release. However, we disagree that our decision in S.A., supra, is applicable to this case or that the Division failed to establish the fourth prong.
The mother in S.A., supra, had been unable to visit her child while incarcerated, but made significant efforts to be a better parent by taking life skills classes. Id. at 530.
The statute's fourth prong "is a 'fail-safe' inquiry guarding against an inappropriate or premature termination of parental rights." F.M., supra, 211 N.J. at 453. It requires proof that "a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. The crux of the fourth statutory subpart is the child's need for a permanent and stable home, along with a defined parent-child relationship." N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 226 (App. Div. 2013) (citing C.S., supra, 367 N.J. Super. at 119).
The standard does not require a showing of no harm arising from the severing biological ties, but that "the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. To this end, the court must assess the child's bond with both her biological and foster parents, ibid., based on "testimony of a well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parents and the foster parents." F.M., supra, 211 N.J. at 453 (quoting M.M., supra, 189 N.J. at 281) (internal quotation marks omitted). "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong," termination may be appropriate. K.H.O., supra, 161 N.J. at 363.
Although Jerome's incarceration naturally interfered with his ability to spend time with Gabi, "'it is by no means settled or obvious that incarceration is so inimical to the [parental] relationship as to justify its termination as a matter of law.'" S.A., supra, 382 N.J. Super. at 534 (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 137 (1993)) (internal quotations omitted). However, a parent's imprisonment "necessarily limits a person's ability to perform the regular and expected parental functions[.]" Ibid. (quoting L.A.S., supra, 134 N.J. at 138) (internal quotations omitted). "It also may serve to frustrate nurturing and the development of emotional bonds and as a 'substantial obstacle to achieving permanency, security, and stability in the child's life.'" Ibid. (quoting L.A.S., supra, 134 N.J. at 139). "Additionally, the nature of the crime causing the incarceration bears upon the issue of parental fitness and the potential for rehabilitation." Ibid. (citing L.A.S., supra, 134 N.J. at 140-43).
Regarding the fourth prong, the court found that termination of Jerome's parental rights would not harm Gabi, finding that "[b]y all accounts [Gabi] is thriving with the resource parents who have a full appreciation and understanding of her needs." The judge opined that Jerome "has never cared for [Gabi], didn't take advantage of parenting time when he was not incarcerated, and remains incarcerated until the earliest October . . . [and] [Gabi] is entitled to permanency." Moreover, Jerome "has not convinced this Court that he has any plan rooted in reality for [Gabi] once he is . . . released from incarceration."
The judge's determination that the Division proved this prong was again well supported by Dr. Brandwein's expert opinion that terminating Jerome's parental rights will not do more harm than good for Gabi. Dr. Brandwein's testimony demonstrated that there is a strong parent-child relationship between Gabi and her resource family. He testified that she sees them as her primary attachment figures, and that the bond that she has with them gives her a sense of security that her needs will be met. In contrast, the doctor testified that Gabi and Jerome did not have a strong parent-child bond, and that their interactions were that of a child with an unfamiliar playmate. The doctor ultimately recommended against reunification.
According to his testimony, if Gabi were separated from her resource parents, there is a probability that she will suffer emotional distress, depression, and developmental regression. Although the doctor stated that these adverse effects could be mitigated if someone else provided the same level of care, the doctor concluded that Jerome could "absolutely not" provide that level of care. He also concluded that Jerome was likely to recommence his criminal behavior upon release from prison, and that his plans for Gabi's future care were unrealistic. Thus, Dr. Brandwein's uncontroverted expert testimony and thorough report provided more than adequate support for the judge's finding that, despite his efforts in prison, Jerome could not care for Gabi, especially with regard to any harm resulting from her being separated from her resource parents. There was ample evidence and expert testimony before the judge, and unlike in S.A., supra, Judge Einbinder thoroughly considered all of the evidence. Id. at 538-39. Once again, we are satisfied that the trial court's finding of the fourth prong was based on substantial, credible evidence.
Jerome's reliance on S.A., supra, is misplaced. In S.A., the trial court failed to adequately address evidence that the mother had ceased her drug use, and the Division failed to present an expert witness as to her ability to remain drug free. 382 N.J. Super. at 535, 538-39. Here, Dr. Brandwein supplied the expert testimony that did not exist in S.A.
In sum, we conclude that Judge Einbinder did not err in determining that Gabi's best interests require termination of Jerome's parental rights so that she can be adopted by her resource parents.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION