Opinion
DOCKET NO. A-1265-13T2
05-22-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. R.B.-O., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF C.R., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Evelyn F. Garcia, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jessica M. Steinglass, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Christopher A. Huling, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Carroll and Higbee.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-109-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Evelyn F. Garcia, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jessica M. Steinglass, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Christopher A. Huling, Designated Counsel, on the brief). PER CURIAM
Defendant R.B-O. appeals from an October 18, 2013 judgment of guardianship, which terminated his parental rights to his daughter, C.R., born in May 2007. Defendant contends that plaintiff New Jersey Division of Child Protection and Permanency (Division) failed to prove each prong of the statutory "best interests" test, N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence. After reviewing the evidence presented to the trial court, and in light of prevailing legal standards and the arguments presented, we affirm.
We recount the following pertinent facts from the trial record. Defendant and C.R.'s mother, E.R., were never married. Initially, when C.R. was born, defendant lived with E.R., although they later separated. E.R. also had three other children in her custody to whom defendant is not biologically related; a boy, A.R., Jr., born in May 1999; a girl, M.A., born in December 2001; and another girl, B.G., born in June, 2005.
Previously, the Division had been involved with E.R. in 1999, when it was notified that she and her then-newborn baby, A.R., Jr., both tested positive for cocaine. The case was closed shortly after. In 2007, the Division was informed that E.R.'s six-year old daughter, M.A., came to school hungry, but the allegation was not substantiated.
On May 8, 2008, the Division received a referral regarding alleged abuse/neglect of C.R.'s half-brother, A.R., Jr. The nine-year old A.R., Jr., told a teacher's assistant that his mother had beat him with a belt, and upon examination, the school nurse found "black and blue bruising all over the child's right upper arm near the shoulder and red scratches on the child's left forearm." The Division investigated, and on May 9, 2008, it conducted a Dodd removal of C.R. and her three older half-siblings, and placed them in foster homes.
An emergency removal of a child from his or her home without a court order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to - 8.82.
After the children were removed from E.R.'s care, the Division, pursuant to court orders, provided her with a substance abuse evaluation, anger management classes, parenting skills classes, psychotherapy and homemaker services. E.R. completed many of those services. The Division also offered defendant substance abuse and psychological evaluations, but he ignored those services, despite court orders. Later, he explained that at the time the children were removed from E.R.'s care, he did not see himself as an independent parental resource for C.R.
C.R. was first placed in a Division-approved resource home, and remained there until November 2008, when she was transferred to the home of a family friend. On September 3, 2009, C.R. and her siblings were placed with their maternal uncle, A.R. On November 13, 2009, the children were reunified with their mother.
On December 10, 2009, the Division received another referral from M.A.'s school alleging that the child had an untreated burn mark on her leg which was "oozing." The Division's investigation revealed that the child was burned when E.R. left a hot iron in the room where the children were playing to go check on her cooking, and that she had warned the children that the iron was on. The Division also learned that E.R. did not take M.A. to the doctor, but instead covered the burn with toothpaste. The Division substantiated the allegations of neglect of M.A. by E.R.
On January 26, 2010, a therapist, visiting the family for a home visit, arrived at the house and found A.R., Jr., and M.A. locked outside their home unattended. The children had walked home from school and were waiting outside for a half hour before the therapist arrived. The Division again substantiated E.R. for neglect. Due to this incident, and other reported instances of neglect, the Division applied to the court for the children's care, custody and supervision, which was granted on February 22, 2010. The children were again removed from E.R.'s home, and C.R. was placed in foster care along with her sister, B.G. In May 2010, E.R. offered her brother, A.R., as a caregiver, and, after a series of meetings, the Division placed C.R., B.G., and M.A. with him on July 27, 2010. In November 2010, A.R., Jr., was also placed with his uncle and siblings. In April 2011, E.R. entered an identified surrender of her parental rights to all the children, including C.R., to A.R., who later adopted A.R., Jr., M.A., and B.G. A.R. has also expressed a commitment to adopt C.R., who continues to live with him and her siblings.
It is unclear from the record how long defendant remained involved in C.R.'s care. At some point he moved to New York, and was no longer involved with E.R. Although he claimed that he "attended all [his] visits" with C.R., he did not seek her care or custody on either occasion that she was removed from E.R.'s home. He also admittedly ignored the Division's proffered services.
While defendant appeared intermittently at earlier court hearings, he failed to appear at any time after an April 19, 2010 compliance review hearing, although he continued to be represented by counsel. The Division indicated that its efforts to contact defendant were unsuccessful.
It was subsequently learned that defendant had been arrested on a third-degree robbery charge in New York on October 12, 2010. Defendant pled guilty, and was sentenced to six months imprisonment at Rikers Island. Upon his release, defendant was transported to an immigration detention facility, then deported back to his native Mexico in March 2011. He claimed that he had attempted to call C.R. when he was incarcerated, but was told by E.R. not to "bother" her or call any longer.
After defendant was deported to Mexico, he began displaying a deeper interest in C.R. Consequently, in June 2012, the court ordered the Division to establish weekly phone calls between defendant and C.R. Defendant was also again ordered to submit to a psychological evaluation.
The Division arranged an international home study of defendant's home in Mexico. The home study reported that defendant had moved back into his maternal grandmother's home, was employed, and was working towards a plan where he could live with his daughter. Defendant's extended family also expressed support for C.R.'s placement with defendant, as they all lived in close proximity to him. The report further noted that defendant's living space was "appropriate" and "sufficient enough" for C.R.
The Division arranged for Dr. Antonio Burr to travel to Mexico to conduct a psychological evaluation of defendant and a bonding evaluation between defendant and C.R. During the January 26, 2013 psychological evaluation, Dr. Burr found defendant to be a friendly person who displayed no signs of psychopathology. The doctor reported that defendant had routinely dabbled with marijuana in the past, but had stopped in 2010. Defendant was administered various tests, which revealed no abnormal tendencies.
Defendant admitted he was aware that E.R. hit the children for slight offenses, and that "[he] tried to protect them but [as he] was not their father [] there was not much [he] could do." But, he said, he protected C.R. from E.R., as she was his own child. Nevertheless, the report noted that although defendant may have been able to physically protect C.R., he had failed to protect her from E.R.'s neglect.
Defendant acknowledged that he had been "irresponsible" and "immature" in refusing to comply with the Division's offered services. He stated that while he was in the United States, he never considered himself to be an independent parental resource for C.R., and thought that "it was [E.R.]'s problem, she was the mother, [and he] did not take it as seriously as [he] should have."
Defendant advised that while he would be fully responsible for supporting C.R., his plan included substantial assistance from his family, including his mother. Though his mother lived in a different part of Mexico, he stated that she would move in to take care of C.R. Dr. Burr noted that defendant could not articulate how he would address the harm arising from C.R.'s separation from her siblings, indicating only that she would be loved by her paternal family.
In his report, Dr. Burr concluded that although defendant genuinely loved his daughter, he had limited resources, making it unrealistic for him to parent C.R. independently. Not only would defendant require substantial assistance, he had a prior drug abuse and criminal history which needed to be addressed by counseling. The report additionally noted that though C.R. was affectionate with her father, she was far more attached to her uncle, whom she looked to for all her needs. Based on the psychological evaluation, Dr. Burr did not recommend reunification of C.R. with her father.
Trial took place on October 3 and 4, 2013. Defendant, represented by counsel, participated telephonically. Dr. Burr testified on behalf of the Division, consistent with his report. He also explained his findings regarding the bonding evaluations he had conducted between C.R. and defendant, and between C.R. and A.R. The doctor concluded that there was a "mild sense of attachment" between C.R. and defendant, and though C.R. recognized defendant as her father, she did not relate to him "with a sense of urgency or with any magnitude that would lead one to believe that she is focused on him as a primary caretaker." In contrast, C.R.'s bond with A.R. "had a different flavor," as she viewed her uncle as her primary caregiver and relied on him to supply all her needs.
Dr. Burr opined that a clear attachment existed between C.R. and A.R., and he predicted C.R. would suffer a substantial loss if the bonds between her and her uncle, her surroundings, and her siblings were to be broken. But, he could not say whether a separation would "constitute chronic harm." Nonetheless, the doctor concluded that defendant, although gentle and affectionate, lacked the "psychological resources to address this kind of significant loss the child would experience." He did not believe that C.R. would suffer substantial or significant loss if she was not placed with her father. The doctor opined that C.R. would suffer from some harm if she lost all contact with her father, as she conceptually understood that he lived elsewhere and had an image of him. But, he believed that A.R. possessed adequate resources to mitigate that harm.
Dr. Burr also noted that defendant had proposed an alternative parenting plan that contemplated that his "mother would move back from a different state in Mexico where she lives with her husband and child to . . . [] contribute to help in the care of [C.R.]." The doctor stated that he "impressed" upon defendant the positive nature of formulating a more detailed plan. However, he never heard anything further, and later learned that the plan was no longer in place. Ultimately, the doctor concluded, that though defendant loved and cared for C.R., he did not think of himself as her primary caretaker as he had not "wrapped his arms around" "[t]he responsibility[ies] of . . . a primary caretaker, . . . the strategic planning, the everyday activities, . . . the thinking out or through . . . of [] being the primary caretaker of this child."
Division caseworker Natalia Aponte testified that she had asked C.R. whether she would like to live with her father in Mexico. Though C.R. expressed a willingness to do so, it was contingent upon her siblings and uncle joining her. According to Aponte, C.R. did not want to go live in Mexico without her siblings and A.R.
Regarding C.R.'s relationship with A.R., Aponte testified, "[s]he's very comfortable with him. Sometimes . . . if she's talking to someone else, she'll say my uncle. Well in Spanish, she'll say mi tio. And when she's talking to him, she'll say Daddy. But she's very comfortable with him, and she does well with him." C.R. had also been asked whether she wanted to live with her uncle forever, as she did not understand adoption, to which she answered yes.
Defendant testified that he had a fine relationship with C.R. and that he had been speaking with her regularly, but that in the past, their phone conversations had been infrequent and irregular. He indicated that his plan was to "give [C.R.] an education, have her live with [him and his grandmother] [t]here in [his] house, [and] take her to school." He confirmed that his grandmother was comfortable with the plan, and also that there was a place for C.R. to stay at his house. He stated that he was employed as a tile installer. He conceded that before his incarceration, the Division had offered him services such as parenting classes and evaluations, but that he did not attend any of his appointments and "ignored them." Defendant also confirmed that if C.R. was allowed to live with him, he would encourage and arrange ways for her to communicate with her siblings through "technology." Finally, he emphasized that he loved C.R., who was his only daughter.
Following the close of evidence, Judge Bernadette N. DeCastro entered judgment terminating defendant's parental rights and awarding guardianship of C.R. to the Division. In an accompanying written opinion, the judge outlined her findings regarding all four prongs of the statutory "best interests" test, and expressed her conclusion that the Division satisfied each of the four prongs by clear and convincing evidence.
To satisfy the first statutory element of the best-interests standard, the Division must show that the safety, health or development of the child has been or will continue to be harmed by the parental relationship. N.J.S.A. 30:4C-15.1(a)(1). As to this prong, Judge DeCastro found:
C.R. has spent less than one-year residing with her father and that was the first-year of her life when her parents resided together. The child was removed from the mother's custody on two occasions. [Defendant] told Dr. Burr that he was aware of the mother's drug abuse history. At no time, did defendant seek to care for her. Despite being aware that the Division had custody of C.R. he failed to keep in touch with them or his daughter. Since February 2008 she has seen her father once. Although they began phone contact in April 2012, it has not always been consistent.
Defendant's criminal conduct, incarceration and deportation as well as his lack of nurture and care of his child for most of her life has clearly harmed her. Therefore, the Division has met its burden of proof by clear and convincing evidence on Prong One.
The second statutory element of the best-interests standard is that the parent is unwilling or unable to eliminate the harm facing the child, or is unable and unwilling to provide a safe and stable home for the child and delay of permanent placement will add to the harm. N.J.S.A. 30:4C-15.1(a)(2); accord In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999). It is aimed at "determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." Id. at 348. The second prong "relate[s] to and overlap[s]" with the first prong to create "a comprehensive standard that identifies the child's best interests." Ibid.
As to this prong, the judge gave substantial weight to Dr. Burr's expert testimony. She concluded:
Dr. Burr conducted a psychological evaluation of [defendant] as well as conducting bonding evaluations between the child and defendant and the child and her foster father. The expert noted that defendant never thought of himself as a primary parental resource. In fact, during the bonding evaluation in which Dr. Burr accompanied C.R., defendant and a paternal aunt on an outing through Mexico City, defendant took on a more passive role and let his sister take the lead. In his opinion, defendant would benefit from counseling before he could be considered a primary caretaker of his daughter.
Dr. Burr concluded that while defendant appears to be a tender and well-meaning person, he will require substantial assistance from others in caring for his daughter. In spite of his genuine love and affection for his daughter, the expert found that he has no viable plan to care for her on his own. Defendant told the expert that
his mother would move over an hour away from her own family and child to live with him and assist him in caring for C.R. At trial, defendant deviated from that plan and testified that he would care for his daughter with the help of his grandmother. He presented no concrete evidence that either plan was feasible. Dr. Burr concluded that defendant did not have a realistic plan or resources to care for his daughter independently.
In evaluating the bond between the child and her father, Dr. Burr opined that removing the child from her uncle and siblings to an unknown environment would be a dramatic separation. C.R. has lived with her uncle for most of her life and she relies on him for emotional support. According to the expert, she is actively attached and bonded to him[. W]hile she has a limited attachment to her biological father it is passive and she does not relate to him as a primary caretaker.
Dr. Burr concluded that if removed from her uncle and siblings, C.R. would suffer a substantial loss. The extent of any chronic harm, the expert could not state. However, the expert opined that given defendant's demeanor he would not be able to mitigate any loss because he does not have the ability to conceptualize her loss. In contrast, she would not suffer any substantial loss or harm if she were not placed with her father.
The expert testimony was uncontroverted. The [c]ourt finds that the Division has proven by clear and convincing evidence that [defendant is] unable or unwilling to eliminate the harm and delaying permanent placement will add to the harm.
The third statutory element of the best-interests standard requires the Division to undertake "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." N.J.S.A. 30:4C-15.1(a)(3). Here, Judge DeCastro found that the Division "exerted reasonable efforts throughout the history of this case commencing in 2008." When defendant was in the United States, he was referred to a substance abuse evaluation, parenting skills classes, supervised visits, and a psychological evaluation, but he "frankly admitted that he ignored all referrals that the Division made for him." Since resurfacing in Mexico, the Division also provided defendant with resources to call C.R., psychological and bonding evaluations, and an international home study. Additionally, the Division explored alternatives to termination, but concluded that none existed.
The fourth statutory prong requires the court to determine whether termination of parental rights will 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." Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). 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. Citing Dr. Burr's unrebutted expert testimony, Aponte's testimony that C.R. wished to remain with her uncle and siblings, and the child's need for permanency and stability, the judge found that this prong was clearly satisfied.
Our review of the trial court's application of the statutory standards to the facts is limited. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). 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." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). 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)). 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).
Judge DeCastro's opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a), accords with K.H.O., supra, and In re Guardianship of D.M.H., 161 N.J. 365 (1999), and is supported by substantial and credible evidence in the record. We affirm substantially for the reasons the judge expressed in her thorough and well-reasoned written opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION