Opinion
DOCKET NO. A-0627-11T1
02-19-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. M.S., Defendant, and E.H., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF D.H. and D.S., minors.
Joseph E. Krakora, Public Defender, attorney for appellant E.H. (Alexander W. Saingchin, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Deirdre A. Carver, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.H. (Caitlin McLaughlin, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli, Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-76-10.
Joseph E. Krakora, Public Defender, attorney for appellant E.H. (Alexander W. Saingchin, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Deirdre A. Carver, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.H. (Caitlin McLaughlin, Designated Counsel, on the brief). PER CURIAM
E.H. appeals from the August 17, 2011 order terminating his parental rights to his daughter, D.H. (Denise), who was born in April 2009. E.H. argues that the Division of Youth and Family Services (Division) did not demonstrate by clear and convincing evidence all four prongs of N.J.S.A. 30:4C-15.1(a). The law guardian supported termination in the trial court and, on appeal, joins the Division in urging this court to affirm. After reviewing the record in light of the contentions advanced on appeal, we affirm.
This name is fictitious in order to protect the child's identity.
E.H. is not biologically related to D.S., the other child involved in this litigation.
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E.H. and Denise's mother, M.S., are the parents of two children. M.S. is not appealing the termination of her parental rights. Her severe drug addiction prevented her from safely caring for Denise. E.H. was incarcerated at the Monmouth County Correctional Institution when Denise was born with cocaine in her system.
E.H. failed to attend substance abuse treatment offered by the Division during litigation involving his older child. He ultimately surrendered his parental rights to the boy in favor of the resource parents who also accepted Denise into their home after she was born.
In October 2009, after his release from jail, E.H. began to visit Denise. He did not attend any of the substance abuse evaluations scheduled by the Division. The Division could only contact him through his sister.
In February 2010, E.H.'s attorney indicated that E.H., a veteran, would be accepting a job in Afghanistan and would not be able to attend future court hearings. Although E.H. missed the next two court hearings, he apparently did not go to Afghanistan as he regularly attended visitation with Denise from April to September 2010.
E.H. has a history of drug use. Records from the Veteran's Administration New Jersey Health Care System (VA) indicate that in April 2010 E.H. attempted to obtain Percocet within two days of receiving 120 pills. He completed a substance abuse screening in June in which he reported using cocaine and alcohol daily up until January 2010. Although scheduled to attend intensive outpatient treatment, E.H. did not complete the treatment.
E.H. was released from jail in October 2009, but was incarcerated again in January 2011 and remained incarcerated throughout the rest of the proceedings.
At trial, the Division presented the testimony of psychologist Dr. Todd Traina who conducted an evaluation of E.H., as well as bonding evaluations. Dr. Traina concluded that due to E.H.'s substance abuse and emotional issues, "for the past 15 years it seems he has not been able to consistently be present in the capacity he would have to be to be a sole caretaker." Dr. Traina further concluded that E.H. was not emotionally available to Denise. He opined that Denise was not bonded to E.H. and would not suffer any harm if her relationship with him was severed. Dr. Traina determined that Denise was securely bonded to her resource family and would have a "loss reaction" and "would lack a place to feel safe when she's in distress" if her relationships with her resource parents and biological brother were terminated.
Division caseworker Alba Forero, who also had been involved with the litigation involving Denise's older brother, testified that she referred E.H. for multiple substance abuse evaluations, which he did not attend. E.H. never completed substance abuse treatment during his involvement with the Division.
Throughout the litigation, E.H. indicated that he wanted Denise placed with his sister or his two adult daughters, aged eighteen and twenty-one, who live in Virginia and were raised primarily by others. Forero testified that E.H.'s sister decided not to complete the Division evaluation process for placement. Only one of E.H.'s adult daughters ultimately responded to the Division's inquiry regarding placement for Denise. However, she was not in a position to care for a child. E.H. testified that he had failed to complete substance abuse treatment, but denied he abused substances as reflected in his VA evaluation. He testified that he hoped to surrender his parental rights to his sister and then live with his sister and help her take care of Denise. When E.H.'s sister testified, however, she confirmed that she was not offering herself as a resource caregiver for Denise.
E.H. raises the following issues on appeal:
POINT I: DYFS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE ALL FOUR PRONGS OF THE BEST INTERESTS STANDARD.
A. THE DEFENDANT'S INCARCERATION DURING ONE AND A HALF YEARS OF HIS DAUGHTER'S LIFE DID NOT CAUSE HER HARM, AND THE DEFENDANT IS READY AND WILLING TO PROVIDE HIS DAUGHTER WITH A SAFE AND STABLE HOME.
B. DYFS' TWO HOUR PER MONTH VISITATION SCHEDULE VIOLATES ITS OWN REGULATIONS.
C. DYFS FAILED TO ESTABLISH THAT TERMINATION OF THE DEF[E]NDANT'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
i) DYFS' INADEQUATE VISITATION CAUSED THE LACK OF A BOND BETWEEN THE DEFENDANT AND HIS DAUGHTER.
ii) THE HARM INHERENT IN THE LOSS OF THE CHILD'S PARENTAL RIGHTS TO HER FATHER ARE NOT OUTWEIGHED BY ANY PERCEIVED BENEFITS.
The standard of review in parental termination cases has been established by the New Jersey Supreme Court:
Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family. . . . We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible
evidence to support the decision to terminate parental rights.
[N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012) (citations and internal quotation marks omitted).]
The Supreme Court "ha[s] consistently imposed strict standards for the termination of parental rights." See In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999) (citations omitted). When seeking the termination of a parent's rights pursuant to N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing, by clear and convincing proof, the following factors:
(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.
These "four prongs are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." F.M., supra, 211 N.J. at 448 (citations and internal quotation marks omitted).
"Parental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." K.H.O., supra, 161 N.J. at 347 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).
We affirm substantially for the reasons expressed by Judge Terence P. Flynn in his oral decision of August 17, 2011. We add only the following comments.
With regard to the first prong, Judge Flynn noted that E.H. had harmed his daughter by his behavior. Judge Flynn stated "even the plan [E.H.] offers now is not for him to be the father, it's for other people to be the parents of the child." In his summary of the facts of the case, Judge Flynn stated, "[i]f the past is any indication of the future, [E.H.'s] frequent incarcerations, his frequent bouts of intoxication are not likely to change." Previously, we have upheld the termination of parental rights when a parent was incarcerated for a substantial portion of his child's life and, for that reason, had no relationship with the child. N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 242-43 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011).
The trial court in T.S. equated the father's incarceration to the physical and financial abandonment of his daughter. Ibid. We affirmed after observing that the father "demonstrated no past parenting of or relationship with the child." Ibid. Further, we found that "this lack of a relationship between father and daughter could not be ameliorated by visitation or services because [the father] remained incarcerated throughout the litigation." Id. at 243.
"Imprisonment necessarily limits a person's ability to perform" their parental obligations. In re Adoption of Children by L.A.S., 134 N.J. 127, 138 (1993). "Once imprisoned, a parent [has] difficulty performing the 'composite of tasks' associated with parenthood and cannot continue to undertake or to share the daily responsibilities of raising a child . . . ." Id. at 138-39 (citing N.J.S.A. 9:6-1). Furthermore, a parent's imprisonment substantially hampers "[t]he ability to provide significant nurturing and to maintain an emotional relationship with the child . . . ." Id. at 139.
With regard to prong two, whether the parent is able to eliminate the harm and provide a safe and stable home for the child, Judge Flynn noted that "[E.H.] is unable to eliminate the harm facing the child. He has thus far been unable to eliminate his absences." Judge Flynn also acknowledged the harm that would befall Denise if she were separated from her brother and her resource parents, who are willing to adopt her.
New Jersey has long recognized the value of preserving sibling relationships. See In re C.R., 364 N.J. Super. 263, 277-78 (App. Div. 2003) (discussing New Jersey's history of emphasizing the importance of preserving sibling relationships), certif. denied, 179 N.J. 369 (2004); N.J.S.A. 9:2-7.1(a) (establishing visitation rights for grandparents and siblings); In re D.C., 203 N.J. 545, 562-67 (2010) (noting that adoptive families may be ordered to allow biological sibling visitation); see also Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6 (setting forth a child's right to be placed with, or at least regularly visit or maintain contact with, siblings).
In discussing prong three, Judge Flynn found that the Division had offered substance abuse services to E.H. and that "they can't provide services to somebody who's in jail[.]"
E.H. maintains that the limited visitation of two hours per month provided by the Division was insufficient, citing to the Division regulations which indicate a goal of weekly visitation, and that frequent visits are especially important for pre-school children. N.J.A.C. 10:122D-1.1(b) and -1.14(a)(3). In April 2009, the Division initially scheduled visits biweekly at Denise's maternal grandmother's home, however E.H. did not begin visiting until October 2009 when he was released from jail. From January 2010 until July 2010, he attended only three visits. The visiting arrangements continued even when one or both parents were unavailable so that Denise could spend time with her other relatives. Although more frequent visitation would have been preferable, and E.H. behaved appropriately at the visits he attended, E.H. did not request more frequent visitation during the litigation and visitation at jail is not always in the best interest of an infant. See Fusco v. Fusco, 186 N.J. Super. 321, 326-27 (App. Div. 1982) (laying out the factors to be considered before ordering visitation for a parent who is incarcerated).
Regarding the last prong, Judge Flynn pointed to the bonding evaluations to demonstrate that termination of E.H.'s parental rights would not do more harm than good. E.H. argues that the lack of visitation prevented Denise from forming a bond with E.H. As the Division points out and Judge Flynn also noted, E.H. never presented himself as an independent caretaker for Denise. See T.S., supra, 417 N.J. Super. at 243. Thus, even if a bond had formed between Denise and E.H., E.H. would not be in a position to offer her a permanent home.
It is clearly in the best interest of Denise to remain with her brother and be adopted by the only caretakers she has ever known.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION