Opinion
DOCKET NO. A-4303-12T2
03-04-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. K.S., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF S.T.S., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa Puglisi, Assistant Attorney General, of counsel; Jessica Downey, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.T.S. (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Kennedy and Guadagno.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-32-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa Puglisi, Assistant Attorney General, of counsel; Jessica Downey, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.T.S. (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
Defendant K.S. appeals from the Family Part's judgment of guardianship terminating his parental rights to his son, S.T.S., and placing S.T.S. with the foster parents he had been living with since early 2011. Defendant contends that the Division of Child Protection and Permanency (Division) failed to satisfy the four-prong test under N.J.S.A. 30:4C-15.1. We disagree and affirm.
The judgment also terminated the parental rights of T.P., the biological mother of S.T.S., who does not appeal.
S.T.S. was born on April 15, 2007 to T.P., who was fourteen years old at the time, and defendant, who was seventeen. Defendant was incarcerated when S.T.S. was born, and it is not clear when he was released.
However, in October 2008, defendant was re-incarcerated after being charged with stealing a cell phone.
S.T.S., who was born eight weeks premature, was placed with T.P. in a foster home upon his release from the hospital, since the Division had earlier conducted an emergency removal of T.P. from the home of her mother, N.P., on April 27, 2007.
Over the next two-and-one-half years, the Division repeatedly intervened with this family due to the grandmother's (N.P.'s) substance abuse, T.P.'s juvenile delinquency and non-compliance with services, and defendant's continued incarceration. These interventions effectuated, at times, the removal of S.T.S. and T.P. from the grandmother's care, and, at other times, the removal of S.T.S. from his mother's care. Attempts at reunification proved unsuccessful and ultimately the Division was awarded custody of S.T.S., who was then placed in foster care, in October 2009.
For instance, after an altercation between T.P. and her mother in October 2008, the Division conducted an emergency removal of S.T.S. and placed him with a resource family. The Division also filed an abuse and neglect complaint against T.P. and defendant under Title 9, N.J.S.A. 9:6-8.21 to -8.73, seeking custody of S.T.S., which was granted.
Shortly thereafter, in December 2009, T.P. was arrested for trespassing, aggravated assault, and resisting arrest. In January 2010, she removed her electronic monitoring device and was sent to a youth detention facility after she had been apprehended.
In February 2010, S.T.S. was placed with a paternal aunt. In September 2010, the aunt informed the Division that she could no longer care for S.T.S. As a result, in October 2010, the Division changed its case goal from reunification to foster home adoption, which was approved by the court, and placed S.T.S. with a resource family interested in adoption. At that time, both defendant and T.P. remained incarcerated. In November 2010, the Division filed a guardianship complaint against both parents, and on January 3, 2011, S.T.S. was placed in the custody of another foster family committed to adoption. He has remained with this family since that time. Defendant was released from custody in October 2011.
At the guardianship trial, Erin Kelly, the Division caseworker assigned to this family from October 2010 to May 2012, described S.T.S.'s adjustment to his present foster family as "flawless." Kelly described the foster parents as "very loving," and their parenting as "very appropriate" and "very involved."
Kelly's first contact with defendant, on the other hand, was in March 2011 while he was incarcerated at the Mountainview Youth Correctional Facility on a theft charge. After defendant was released from prison in October 2011, Kelly met with him and asked him what services he would be interested in receiving. She did not recall him asking for any services. Defendant told her that he had taken parenting, anger management and substance abuse classes while he had been incarcerated. He was also participating with a community outreach program that had found him a job as a janitor. Kelly provided defendant with a bus pass.
She also referred defendant to a family growth program with Catholic Charities, but the program found him to be noncompliant. Defendant cooperated with the Division's request to undergo psychological evaluation. Defendant had one or two visits with S.T.S. while Kelly was the caseworker.
Another Division employee, Monique Ford-Martin, became the caseworker after Kelly had gone on leave. She met with defendant in May 2012, shortly after he had been laid off from his janitorial job. She encouraged him to take advantage of the services offered by the family growth program, specifically the parenting classes.
Defendant was living with a paramour at the time. The Division had concerns about adequate room at the home because the paramour had two children of her own living with her. By mid-summer 2012, defendant was living with a new paramour at his cousin's home.
Starting in June 2012, defendant visited with S.T.S. once a week for one hour. In July 2012, defendant notified Ford-Martin that he could not make the appointment time for the visits because he had obtained a job. The Division then scheduled evening visitations. There were a total of nine visits between June and October 2012 of the twenty scheduled by the Division. The Division canceled one visit because Ford-Martin was on vacation, and another visit was canceled because defendant had not confirmed. After mid-October 2012, Ford-Martin had trouble contacting defendant, and he did not return her messages. Defendant did not have contact with S.T.S. after that.
The Division investigated six family members as placement resources, but all were ruled out. For instance, T.P.'s father was found ineligible in April 2010 because he had a history of domestic and substance abuse. S.T.S.'s paternal grandmother was ruled out in December 2011 because she had a twenty-year history with the Division, although the substantiations were overturned. In addition, she had two outstanding warrants and her home failed to meet the Division's licensing requirements because her apartment had only one bedroom in which she and her daughter slept. Also, the paternal grandmother had not seen S.T.S. for nearly two years.
In December 2012, defendant was detained in a correctional facility for failing to report to his probation officer. He told Ford-Martin that he was due to be released in February 2013. She told him to contact her after his release, but he failed to do so after his February release until early April, and only after Ford-Martin had initiated the contact. Defendant did not communicate with S.T.S. even though his son's sixth birthday was in April.
Alan Gordon, a licensed psychologist, evaluated defendant in April and November 2011, and again in October 2012, at the Division's request, to determine his parenting skills. He first met defendant when defendant was incarcerated on the theft charge. Defendant used drugs and was in a drug program at the correctional facility. Gordon found defendant's IQ to be in the borderline range, and a personality test revealed that defendant exhibited a psychological dysfunction of mild to moderate severity. Gordon also found evidence of narcissism.
Gordon conducted two bonding evaluations of defendant and S.T.S. In the first one, Gordon concluded that there was no bond between the two. After the second evaluation at the end of 2012, Gordon concluded that S.T.S.'s attachment to defendant was insecure and that there was not a very strong bond between the two. Gordon also found that defendant was not in a position to provide S.T.S. with a stable home, and that the prognosis for his ability to provide such a home in the future was poor.
Gordon concluded that S.T.S. would not suffer any enduring harm if his relationship with defendant were severed. He similarly concluded, after bonding evaluations in April 2011 and February 2012, that S.T.S. would not suffer if T.P.'s parental rights were terminated.
Gordon also conducted three bonding evaluations of S.T.S. and his foster parents on March 14 and October 28, 2011, and on August 20, 2012. He found that S.T.S. viewed them as his psychological parents. As opposed to his birth parents, S.T.S. was "totally involved" with the foster parents. In the second evaluation, S.T.S. referred to them as "mommy and daddy," seemed very much at ease with them, and made physical contact with them. This physical contact did not occur in S.T.S.'s interaction with either birth parent.
In the third evaluation, Gordon found the bond between S.T.S. and the foster parents to be even stronger. He also noted that S.T.S. had been in the same foster home for roughly two years. Breaking those attachments would be very detrimental to him. If he were removed from the foster parents, it would cause him "great upheaval."
Andrew Brown, a psychologist, conducted a psychological evaluation of defendant in October 2011, and a bonding evaluation in February 2012, on defendant's behalf. Brown did not perceive a bond between the two, but did discern the potential for a bond with increased contact. There was nothing in the psychological evaluation that gave Brown concern regarding defendant's parenting ability.
At the close of evidence, the judge found that the Division had proven the four prongs of the "best interests" test and therefore terminated defendant's parental rights. As to prong one, the court found:
In this instance, both parents were incarcerated at the time of [S.T.S.'s] removal, both have been re-incarcerated during the course of this guardianship and when they are free they have . . . not done sufficient [sic] to be reunited with their son who is now almost six years old.
In finding that the Division had satisfied prong two, the court stated:
In this instance, neither parent has yet to provide a safe and stable home for themselves let alone for their child, the harm found in Prong 1 continues. The extensive credible testimony given by Dr. Gordon concerning the bonding evaluations of all parties quite clearly states to a reasonable degree of psychological certainty that his foster parents are [S.T.S.'s] psychological parents and that removal would cause severe and enduring emotional and psychological harm to this child.
This [c]ourt finds from the credible testimony offered, that neither biological parent has the capacity to remediate that harm.
With respect to prong three, the court held:
Certainly in this instance, the credible testimony of Ms. Kelly, Ms. Ford-Martin, has enumerated at length the services provided . . . . [T]here was no compliance by [T.P.] and little by [defendant]. Other alternatives were also considered, the first being reunification. They also testified as to each individual offered by [T.P.] and [defendant] as alternative placements and the disposition
in each case . . . .
Finally, the court found that the Division had satisfied prong four:
[S.T.S.] is not bonded at all to [T.P.], he has a potential for a bond with [defendant]. Dr. Brown indicates that there is an insecure attachment to [defendant] and Dr. Gordon concurs.
According to the credible testimony that has been offered before this court, this [c]ourt finds that although there is an insecure attachment, there is not a secure bond . . . and that [defendant] . . . can[not] ameliorate any harm that would occur to this child . . . by removal from his psychological parents, his foster parents.
On appeal, defendant raises the following issues:
I. THE TRIAL COURT MISAPPLIED THE FOUR PRONGS OF THE BEST INTERESTS TEST IN FINDING THAT K.S.'S PARENTAL RIGHTS MUST BE TERMINATED.
A. THE TRIAL COURT ERRED IN FINDING THAT K.S. SO HARMED S.T.S. AND WAS SO UNWILLING OR UNABLE TO ELIMINATE THAT HARM, AND THAT THE DELAY IN PERMANENT PLACEMENT SO ADDED TO THE HARM, AS TO COMPEL TERMINATION OF HIS PARENTAL RIGHTS.
B. THE TRIAL COURT ERRED IN FINDING THAT DCPP PROVED THE THIRD PRONG OF THE BEST INTERESTS TEST BECAUSE DCPP WAS NOT COMMITTED TO THE SUCCESS OF ITS REUNIFICATION EFFORT AND BECAUSE IT FAILED TO CONSIDER ALTERNATIVES TO THE
TERMINATION OF K.S.'S PARENTAL RIGHTS.
C. TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.
The scope of an appellate court's review of a trial court's "decision to terminate parental rights is limited." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record[,]" particularly on issues of credibility. Ibid. The scope of that review is expanded "[w]here the issue to be decided is an alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom . . . ." Ibid. (internal quotation marks omitted). Nonetheless, because guardianship cases are so fact sensitive, and "[t]he stakes are so high," intense scrutiny is mandated. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004).
The standards for termination of parental rights are as follows:
(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.
[N.J.S.A. 30:4C-15.1(a).]
I.
Defendant argues that the Division failed to satisfy prong one because there was no evidence that he had ever abused S.T.S. and because his incarceration was relatively brief and for a nonviolent offense. We disagree.
"[H]arm caused by circumstances attendant to the parent-child relationship is as pertinent as any harm caused directly by a parent." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 289 (2007). Therefore, there need not be actual physical harm to the child; the potential for harm is sufficient. See In re Guardianship of K.H.O., 161 N.J. at 337, 349 (1999). A parent's absence "for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
Moreover, while we recognize "'that incarceration is [not] so inimical to the [parental] relationship as to justify its termination as a matter of law[,]'" N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006) (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 137 (1993)), nonetheless, incarceration does limit an individual's ability to perform parental functions and serves "to frustrate nurturing and the development of emotional bonds" by constituting "a substantial obstacle to achieving permanency, security, and stability in the child's life." Ibid. (internal quotation marks omitted). Thus, it is a factor to be considered when evaluating harm to the child and the ability of the parent to care for the child. L.A.S., supra, 134 N.J. at 135-36.
Here, defendant was incarcerated, off and on, over a five-year period. He was incarcerated in April 2007, released sometime thereafter, and re-incarcerated in October 2008. In addition, he was still incarcerated in October 2009 and October 2010. He was released in October 2011, and then re-incarcerated from December 2012 until February 2013 for a violation of parole.
This long period of incarceration, and the fact that it involved repeated, frequent incarceration, clearly factors in determining defendant's parenting ability as well as the harm to S.T.S. caused by his absence. Moreover, the court did not simply rely on defendant's incarceration, but also on his failure to make sufficient efforts, including establishing a stable home, to form a bond with S.T.S. Even when defendant was not incarcerated, his contact with S.T.S. was often sporadic and marked by prolonged absences. For example, by the conclusion of trial, he had not seen S.T.S. for over six months. When he contacted Ford-Martin in April 2013, two months after his release from incarceration, defendant did not request a visitation, nor did he recognize his son's sixth birthday that month.
We are therefore satisfied that the Division had satisfied prong one.
II.
The second prong relates to parental unfitness. K.H.O., supra, 161 N.J. at 352. There are two ways to establish this prong: the State must show that (1) the child's health and development have been and continue to be endangered and that the harm visited upon the child is likely to continue because the parent is unable or unwilling to overcome or remove the harm; or (2) the parent is "'unable to provide a safe and stable home for the child and' a delay" in securing permanency continues or adds to the child's harm. Id. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)).
Here, the evidence supports the court's conclusion that defendant did not provide a safe and stable home for himself, let alone for S.T.S. There was no evidence that S.T.S. had even spent one overnight with defendant. In addition, Gordon found that defendant seemed to go from relationship to relationship, and from residence to residence, without being able to provide a stable home. And there is scant evidence that defendant sought to ameliorate the harm done to his relationship with S.T.S. as a result of his incarceration.
Defendant attacks the objectivity of Gordon's opinion, claiming that he was biased because he had testified in favor of S.T.S.'s foster parents in a prior adoption. However, there is no evidence that he had testified in another case and, if he had, the circumstances of that adoption were not set forth, so there is no basis for comparing the prior situation with this one. Nor does defendant offer any evidence of actual bias in Gordon's evaluation.
Moreover, the evidence supports the court's conclusion that S.T.S.'s bond with his foster parents was strong, and that he would suffer from the disruption of that relationship. Consequently, the judge's finding that defendant had not, and was not likely to, provide a safe and stable home for S.T.S., and that S.T.S. had bonded with the foster parents so that removal would cause him serious and enduring harm, was supported by "substantial[] and credible evidence in the record." G.L., supra, 191 N.J. at 605.
III.
The third prong requires the Division to make reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home.
Reasonable efforts will vary with the circumstances. N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div.), certif. denied, 192 N.J. 68 (2007). This prong requires the Division to make diligent efforts to make it possible to reunite the family. K.H.O., supra, 161 N.J. at 354. The efforts should not be measured by their success, nor by whether they were a "perfect model." See M.M., supra, 189 N.J. at 286.
Defendant argues that the Division made insufficient efforts to provide him with services as it did not have a caseworker interview him until March 2011, failed to provide him secure and stable housing, and failed to sufficiently consider placing S.T.S. with relatives, specifically his paternal grandmother. We disagree.
The Division's case plan changed from reunification to termination of parental rights because both T.P. and defendant were incarcerated. Defendant's incarceration, in turn, made it difficult for the Division to provide him with services. We have "recognize[d] the difficulty and likely futility of providing services to a person in custody . . . ." S.A., supra, 382 N.J. Super. at 535-36.
After his release, the Division provided defendant with a bus pass, a psychological evaluation, and the opportunity to participate in a family growth program. Efforts must be assessed "in light of all the circumstances of a given case." D.M.H., supra, 161 N.J. at 393. The Division made reasonable efforts to provide defendant with services given the circumstances of his incarceration.
As for defendant's claim with regard to housing, there is nothing in the record to indicate that defendant requested, or needed, housing assistance after his release from incarceration in late 2011. In fact, he told the Division that he planned to get his own apartment without requesting its aid. Moreover, it was not his lack of housing, but his failure to live in a stable situation that was problematic.
As for defendant's argument that the Division failed to give sufficient consideration to placing S.T.S. with defendant's mother, suffice it to say, the Division ruled out the paternal grandmother, in part, because of a twenty-year history with the Division, even though none of the charges were substantiated. In addition, it cited two outstanding warrants against the grandmother and that she was living with her daughter in the only bedroom in her home. Further, there was no evidence offered as to the extent of S.T.S.'s relationship with her. These factors support the Division's determination that it would not have been in S.T.S.'s best interests to be placed with the paternal grandmother.
Moreover, S.T.S. had been with the foster parents for over two years by the time trial had concluded. Gordon testified that S.T.S. had developed a strong bond with them, and that to disrupt that relationship would cause S.T.S. harm. Consequently, we find that the Division adequately explored relative placement.
IV.
Relatedly, the question under prong four is whether "the child will suffer a greater harm from the termination of ties with [the] natural [parent] than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. Based on the expert testimony, there is more than sufficient evidence to uphold the court's determination that S.T.S. would suffer greater harm if his ties to his foster parents were broken. In this regard, Gordon found that S.T.S. had a strong bond with his foster parents, and that terminating that bond would be detrimental to him and cause him "great upheaval." Moreover, S.T.S. has been in the care of the foster parents since January 2011. In contrast, Gordon found that S.T.S. would not suffer enduring harm if defendant's parental rights were terminated. Indeed, Brown, defendant's expert, only found a potential for a bond between defendant and S.T.S.
In sum, we are persuaded that the Division proved all four prongs of the "best interests" test, warranting termination of defendant's parental rights.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION