Opinion
DOCKET NO. A-1745-13T1
06-20-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.J., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.C. and N.C., minors.
Carleen M. Steward, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Steward, on the brief). Jennifer Russo-Belles, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Russo-Belles, on the brief). Lisa M. Black, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Guadagno, and Sumners.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FG-01-72-12.
Carleen M. Steward, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Steward, on the brief).
Jennifer Russo-Belles, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Russo-Belles, on the brief).
Lisa M. Black, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the brief). PER CURIAM
Defendant S.J. (Steve) appeals from the October 25, 2013 Family Part order terminating his parental rights to his children, J.C. (James) and N.C. (Nate). Steve claims that the trial court erred in concluding that the New Jersey Division of Child Protection and Permanency (Division) demonstrated by clear and convincing evidence that the termination of his parental rights was warranted. We disagree and affirm.
We employ fictitious names to protect the confidentiality of the children and for ease of reference.
The Department of Children and Families was reorganized and the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
I.
S.C. (Susan) is the biological mother of James, born in January 2008, and Nate, born eleven months later. The Division became involved with the family in 2008 following Steve's arrest for selling drugs out of a home in Mizpah, New Jersey. The police reported that Susan and the children resided in the home, which was in a "deplorable" state of disrepair. After conducting a preliminary investigation, the Division initially determined that Susan and the children did not reside at the residence and the allegations were unfounded.
Additional information led the Division to later reverse that determination and substantiate abuse or neglect as to Susan.
At a court appearance on May 5, 2009, Steve submitted to a drug test that was positive for marijuana and cocaine. Steve was referred for psychological and substance abuse evaluations, but he failed to appear for either. When the evaluations were rescheduled, Steve again failed to appear for the psychological and tested positive for marijuana at the substance abuse evaluation. He failed to attend any treatment sessions after July 2009.
Susan obtained a final restraining order against Steve after she claimed he threatened to harm her. Steve was prohibited from having any contact with Susan or the children.
In May 2010, Steve was arrested and charged with burglary, assault, and weapons offenses. Following Steve's release, he went to Susan's home and demanded to see the children. Steve wanted to take the children out of the house and Susan refused. They argued, and Steve pushed Susan into a wall. After Steve left, Susan, who admitted that she was a member of the Brim faction of the Bloods gang, called a gang associate, Jerrell Williams, who instructed Susan to have Steve return to the home When Steve arrived, Williams fired several shots into Steve's car and fled. Steve was unharmed, but both James and Nate were at home when the shooting occurred.
Susan was arrested and charged with attempted murder. The Division removed James and Nate and was granted temporary custody. In May 2011, after an interstate evaluation, both children were placed with a maternal uncle in Florida.
In January 2011, Steve was convicted of third-degree aggravated assault and sentenced to a three-year prison term. In April 2012, the Division filed a complaint seeking guardianship of James and Nate. Susan surrendered her parental rights to both children on the condition that they are adopted by the current caregiver.
In December 2012, Steve was released from prison. At the request of Steve's counsel, a permanency hearing was scheduled for January 23, 2013. Steve appeared and indicated that he was willing to participate in services. The court approved a "concurrent" permanency plan whereby the Division would provide services to Steve but would also pursue termination of his parental rights to allow adoption by the maternal uncle. The court explained the plan to Steve, including the importance that he promptly engage in services:
THE COURT: Okay. Well, [Steve], before you came in the courtroom I approved the
Division's permanency plan for the children which is a concurrent plan. I don't know if you had a chance to discuss that with your attorney, but the Division is seeking to terminate your parental rights followed by adoption with their caretaker currently concurrent with a reunification plan with you, okay?
[STEVE]: What's that?
THE COURT: That means that they have to address both issues at the same time. We're in a guardianship matter right now. You need to engage yourself in services and at this time the Division is going to pursue both reunification and termination of your parental rights. You can change that by engaging in services and making your home a place where the children can [safely] return to, okay?
[STEVE]: Um-hmm.
THE COURT: But you need to act now, okay, as I'm sure your attorney will tell you.
[STEVE]: All right.
After the hearing, Steve met with a Division caseworker and told her that he approved of the placement of the children with their maternal uncle in Florida and acknowledged that he was unable to care for them at that time, as he was unemployed and lacked housing. The caseworker told Steve she would promptly schedule a drug and alcohol evaluation and gave him her contact information. That was the last contact Steve had with the Division. The caseworker attempted to locate Steve by visiting several of his prior addresses to no avail.
Steve failed to appear at court conferences on March 25, 2013, May 21, 2013, June 24, 2013, and August 26, 2013. Trial took place on September 25, 2013. Again, Steve failed to appear, although he was represented by counsel. The Division called caseworker Lauren Straughn who introduced several documents from the Division's case file and related the history of the case. Straughn reiterated that the Division's last contact with Steve occurred just after his release from prison and that he failed to engage in any services. Straughn also confirmed that the current caretaker of James and Nate was willing to adopt them. Straughn was cross-examined by the children's law guardian.
On October 25, 2013, the court issued a comprehensive twenty-four page written decision concluding that the Division proved the four prongs of the best interests test by clear and convincing evidence. An order terminating Steve's parental rights to James and Nate was entered that day.
On appeal, Steve presents two arguments:
THE TRIAL JUDGE'S DECISION AND FINDINGS OF FACT ARE NOT SUPPORTED BY THE EVIDENCE OR BY THE CASE LAW AND STATUTES WHICH GOVERN TERMINATION OF PARENTAL RIGHTS PROCEEDINGS.
THE DIVISION FAILED TO SATISFY BY CLEAR AND CONVINCING EVIDENCE THE REQUIREMENTS OF N.J.S.A. 30:4C-15.1(a), AND, THEREFORE, [STEVE'S] PARENTAL RIGHTS MUST BE REINSTATED.
II.
An action to terminate parental rights is governed by the four-pronged best interests of the child test codified in N.J.S.A. 30:4C-15.1. Under that standard, the Division must demonstrate, by clear and convincing evidence, that each of the following four factors is satisfied:
(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).]
"The harm shown under the first prong must be one that threatens the child's health and will likely have continuing deleterious effects on the child." In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999). Steve was incarcerated for most of the four-year period the Division was involved with his family. He argues that he "never abused or neglected his sons . . . . [and he] did nothing wrong." A parent's incarceration is "probative of whether the parent is incapable of properly caring for the child or has abandoned the child. It is, therefore, a factor that is unquestionably relevant to the determination of whether the parental relationship should be terminated." In re Adoption of Children by L.A.S., 134 N.J. 127, 136-37 (1993).
We first address Steve's post-oral argument claim that a recently decided case, New Jersey Division of Youth and Family Services v. R.G., ___ N.J. ___ (2014), indicates that the trial court improperly relied on Steve's incarceration as a basis for the termination of his parental rights. In R.G., the Division sought to terminate a father's rights to his daughter after he served a prison term that began when the child was six months old and lasted until after her sixth birthday. Id. slip op. at 2-3. The father, J.G., lived with the child's mother, R.G., and her son, K.G., who was fathered by another man. Id. at 3. J.G. played an active role in supporting and caring for both children prior to his incarceration. Id. at 3-4. While J.G. was in prison, the Division removed both children from R.G.'s custody and placed them with their maternal grandmother. Id. at 5. R.G. surrendered her rights to both children, conditioned on their adoption by their grandmother and the Division sought to terminate J.G.'s parental rights, including any contact and visitation with his then six-year-old daughter. Id. at 6-7. After trial, the court found that the Division failed to prove the four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence and refused to terminate J.G.'s parental rights. Id. at 13.
On June 5, 2014, counsel for defendant submitted a letter pursuant to Rule 2:6-11(d), calling R.G., which was decided six days after we heard oral argument, to our attention.
The Division appealed and a divided panel reversed but a dissenting colleague agreed that the Division's proof failed to satisfy the four-pronged test. Id. at 17-19.
The Court reversed, noting that J.G. parented the child prior to his incarceration and, while in prison, maintained contact with her by writing and calling on the phone. Id. at 39-41. He also took courses in anger management, behavior modification, re-entry preparation, and parenting while he was incarcerated. Id. at 12. The Court observed that "the standard for termination of parental rights is not any different when the parent is incarcerated[,]" id. at 40 (citing New Jersey Division of Youth and Family Services v. T.S., 417 N.J. Super. 228, 240-43 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011)), and that the trial court's finding that the Division had failed to establish by clear and convincing evidence that reasonable efforts to provide services were made to J.G. is entitled to deference, particularly in light of J.G.'s efforts to seek services while in prison. Id. at 45.
We find the facts here are distinguishable from those in R.G. Long before his incarceration, Steve tested positive for marijuana and cocaine and failed to engage in services to address his drug issues. He committed an act of domestic violence against Susan and a final restraining order was entered against him prohibiting his contact with the children. Although Steve's drug use, domestic violence, or history of incarceration standing alone might not constitute harm to the children, "the best interests standard does not concentrate on a single or isolated harm or past harm as such. . . . [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 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986)).
Once Steve was released from prison, the Division offered services to him but he refused to accept or participate in any of them. He also failed to maintain contact with the Division after his first and only meeting with the caseworker. Unlike the father in R.G., Steve was an absentee father who made no effort to provide care and support for James and Nate.
Steve argues that the trial court failed to cite to specific actions undertaken by him that resulted in harm to his children. This argument misinterprets the scope of N.J.S.A. 30:4C-15.1(a)(1) by focusing on the absence of actual harm done to the boys. Indeed, the statute's contours are far more comprehensive. There is ample evidence that Steve has not demonstrated any form of parental support for his sons. The attention and concern of a caring family remains "the most precious of all resources[.]" A.W., supra, 103 N.J. at 613. A withdrawal of parental nurturing and care for an extended duration comprises a harm that jeopardizes any child's health and well-being. K.H.O., supra, 161 N.J. at 352-54. A.W. distinguishes situations involving "inadequate parenting" from a failure to provide minimal parenting to a child. A.W., supra, 103 N.J. at 605-07.
The trial court recognized that evidence in its well-reasoned opinion:
[James's and Nate's] health and development have been or will continue to be endangered by the parental relationship. [Steve] has testified positive for marijuana and cocaine during the course of this litigation. [Steve] has failed to comply with the Division's recommendation that he attend an inpatient or outpatient substance abuse
program. [Steve] has an extensive criminal history, including assault, robbery, and narcotics offenses. In addition to these charges [Steve] has a history of domestic violence. He has been incarcerated for a substantial period of time during this litigation.
Furthermore, [Steve] was essentially homeless at the inception of the Division's involvement with the family, and there is no proof that he has a residence at this time.
. . . .
[Steve] has not appeared in court since January 23, 2013, and he has failed throughout this litigation to comply with any of the Division's recommended services or scheduled evaluations. The Division has been unable to locate [Steve] for at least the past six months. Throughout the Division's involvement with the family [Steve] has repeatedly gone missing for periods of time, and/or been incarcerated.
These findings are consistent with the evidence presented in the record and we discern no error regarding the trial court's application of prong one of the best interests standard to this case's facts.
The second prong, N.J.S.A. 30:4C-15.1(a)(2), addresses whether
[t]he 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[.]
Parental unfitness may be established in several ways. K.H.O., supra, 161 N.J. at 352. "It may be demonstrated that the parent is 'unwilling or unable to eliminate the harm' that has endangered the child's health and development." Ibid. Additionally, "[p]arental unfitness may also be demonstrated if 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." Ibid. The inquiry in the second prong "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.
Steve argues that "[t]he trial judge did not make any findings with regard to [his ability] to rectify the Division's perceived weaknesses in his ability to rear his children." He relies on his attendance at parenting classes and his submission to psychological and substance abuse evaluations as overlooked pieces of evidence that demonstrate that he has eliminated the harm to James and Nate. We find this argument unpersuasive.
Steve has failed to provide a stable home for his children. His criminal convictions, unaddressed drug abuse, and prior history of domestic violence are all indications that Steve would present substantial harm to James and Nate if the boys were placed under his care. The trial judge relied on these facts to support her determination that the Division had satisfied the second prong of the best interests standard. The court reiterated its findings under the standard's first prong and indicated that "[James] and [Nate] are well-adjusted to life with their resource parent, the maternal uncle. For the first time throughout this litigation, [James] and [Nate] have been in a stable and safe home for a substantial period of time, more than two years." The court's findings under prong two of the best interests standard were based on substantial evidence contained in the record.
The third prong, N.J.S.A. 30:4C-15.1(a)(3), addresses whether "[t]he [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[.]" Reasonable efforts include parental consultation, reunification initiatives, services essential to accomplishing reunification, notice to the family regarding the child's progress, and visitation facilitation. N.J.S.A. 30:4(C)-15.1(c). An evaluation of the Division's reasonable efforts is undertaken on an individualized basis. In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999). N.J.A.C. 10:133-1.3 also stipulates that "the provision of services to the family [must be] coordinated with other services, available and accessible and . . . have a realistic potential to meet the child's needs for a safe, secure, and permanent relationship with a family or another permanent arrangement."
In addition to considering the Division's "reasonable efforts" the court must also take alternatives to termination under consideration. In this regard, the Division's efforts to assist the family are not measured by their success. D.M.H., supra, 161 N.J. at 393. Therefore, "the parent's failure to become a caretaker for his children is not determinative of the sufficiency of [the Division's] efforts at family reunification. These efforts must be assessed against the standard of adequacy in light of all the circumstances of a given case." Ibid.
Steve argues that the trial court failed to acknowledge that the Division was reluctant to offer him any type of services. He also claims that the Division failed to adequately consider alternatives to the termination of his parental rights. We disagree.
It is not disputed that Steve failed to engage in and complete services when they were initially offered by the Division and did not contact the Division following his release from prison.
The trial court recognized Steve's reluctance to engage the Division's services both during and subsequent to his incarceration:
[o]f great significance is [Steve's] refusal to comply with any and all services despite repeated recommendations, and [Steve's] lack of interest or inability to visit [James] and [Nate], despite being offered supervised weekly visitation, and the option to have supervised telephone calls with [James] and [Nate].
The trial court accurately concluded that Steve was presented with numerous Division services throughout this litigation and affirmatively chose not to use those services.
Prong four of the best interests standard "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). The Court in A.W. recognized that a "'child deeply needs association with a nurturing adult'" and that "'permanence in itself is an important part of that nurture.'" Ibid. (quoting A.W., supra, 103 N.J. at 610).
However,
[w]hen a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and when the child has bonded with foster parents who have provided a nurturing and safe home . . . termination of parental rights likely will not do more harm than good.
[Ibid.]
Steve argues that the Division failed to present expert testimony regarding the bond between him and his children and without such testimony, the Division cannot satisfy its clear and convincing evidentiary burden to properly address that prong. We disagree.
The Division was unable to provide expert testimony as the result of Steve's incarceration for much of the litigation and his failure to contact the caseworker or appear at any court hearings after his release. The trial court noted this in its decision:
[James] and [Nate] have been in placement for nearly two and a half years. In that time [Steve] has had little to no contact with [James] and [Nate]. The Division presented a permanency plan in August 2012 seeking termination of parental rights, concurrent with reunification. The Division has repeatedly referred [Steve] for services and evaluations, which [he] has failed to
comply with. [Steve] has been incarcerated throughout much of this litigation, and despite being released from prison, he has failed to attend court proceedings or contact the Division to schedule the recommended services. Thus, the court finds that terminating [Steve]'s parental rights will not do more harm than good.
Steve's failure to play any role in caring for his sons prior to and following his incarceration provides ample support for the trial court's conclusion that "the only relationship between the minor children and [Steve] at this point appears to be biological and legal, and nothing else."
We are satisfied that there is substantial credible evidence in the record to support the trial court's termination of Steve's parental rights under N.J.S.A. 30:4C-15.1(a).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION