RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5488-18T3
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
A.H.,
Defendant,
and
D.L.,
Defendant-Appellant. _____________________________
IN THE MATTER OF THE GUARDIANSHIP OF A.P.D.,
a Minor. ______________________________
Submitted April 20, 2020 – Decided June 5, 2020
Before Judges Ostrer, Vernoia and Susswein. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-0150-19.
Joseph E. Krakora, Public Defender, attorney for appellant (Robyn A. Veasey, Deputy Public Defender, of counsel; Christopher Anthony Huling, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Juliana L. Stiles, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Linda Vele Alexander, Designated Counsel, on the brief).
PER CURIAM
Defendant D.L. (David) 1 appeals from a Family Part order terminating his
parental rights to his daughter, A.P.D. (Ann). David contends the court erred
by finding the New Jersey Division of Child Protection and Permanency
(Division) sustained its burden of presenting clear and convincing evidence
establishing each prong of the statutory best interests of the child standard,
N.J.S.A. 30:4C-15.1(a). Having reviewed the record and applicable law in light
1 We use initials and pseudonyms to identify the parties, the child, and their family members because records related to New Jersey Division of Child Protection and Permanency proceedings held pursuant to Rule 5:12 are excluded from public access under Rule 1:38-3(d)(12). A-5488-18T3 2 of the arguments advanced on appeal, we are convinced the court correctly
determined the Division satisfied its burden, and we affirm the court's order
terminating David's parental rights.
I.
Prior to Ann's birth in July 2017, Ann's mother, defendant A.H. (Alice),
had three other children, none of whom were in her custody. 2 On the day after
Ann's birth, the Division received a referral that Alice and Ann tested positive
for marijuana. Alice identified P.D. (Paul) as Ann's father. Paul took Ann home
from the hospital subject to a Division safety plan barring Alice from any
unsupervised contact with Ann.
2 Alice did not respond to the guardianship complaint or participate in the trial. The court entered default against Alice in accordance with Rule 4:43-1; made detailed findings concerning Alice following the guardianship trial; and determined the Division presented clear and convincing evidence satisfying each prong of the best interests of the child standard. See N.J.S.A. 30:4C- 15.1(a). The court ordered the termination of Alice's parental rights, and Alice does not appeal from the court's order. It is therefore unnecessary to detail the facts and circumstances establishing the numerous bases supporting the termination of Alice's parental rights to Ann.
A-5488-18T3 3 In December 2017, genetic testing revealed Paul is not Ann's father. The
Division conducted a Dodd removal 3 and placed Ann in a non-relative resource
home. Alice later identified T.K. as Ann's father, but a February 2018 genetic
test established otherwise.
Alice also identified David as Ann's putative father. In April 2018, a
genetic test established David's paternity, and the Division immediately
arranged an initial visit between David, his family members, and Ann. After the
initial visit, David informed the Division he was on probation, had violated the
conditions of his probation, and was to be incarcerated in State prison. David
was on probation following his release from incarceration in December 2017,
and he had violated the conditions of his probation by committing an aggravated
assault on his fiancée, S.B. David reported he had resided with S.B. and her two
minor daughters in S.B.'s home since 2013, during the times he was not
incarcerated.
David pleaded guilty to the aggravated assault of S.B. pursuant to a plea
agreement, and, at the time of his initial visit with Ann, he was awaiting
3 A "Dodd removal" is an emergency removal of a child from the custody of a parent without a court order, as authorized by N.J.S.A. 9:6-8.29, a provision included within the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.
A-5488-18T3 4 sentencing to a maximum three-year custodial term. The Division arranged
three additional visits with David, Ann, and members of David's family prior to
the commencement of David's three-year custodial sentence on June 15, 2018.
The Division maintained records of each person present during the visits with
Ann, and the records show S.B. did not attend any of the visits with the child.
David remained incarcerated through the completion of the guardianship trial in
August 2019, with an anticipated release date in late 2019.
Prior to his incarceration in 2018, David requested the court place Ann
with his mother, N.A., but the Division ruled out N.A. because she failed a drug
screen and had a prior history with the Division. The Division also ruled out
Ann's maternal aunt, V.H., who had custody of two of Alice's older children,
because V.H. tested positive for marijuana and alcohol. 4
In October 2018, Ann's resource parents decided they could no longer care
for her. Ann was placed in another resource home, but she suffered physical
injuries and bruises during her short stay there. The Division placed Ann with
her paternal great aunt, C.H. (Clara), who had cared for David during the first
eight years of his life. Prior to Ann's placement with Clara, the Division
facilitated visits with Ann by David's family, including his mother, N.A., and
4 The Division referred V.H. for treatment. A-5488-18T3 5 Clara. Following a November 2018 Family Part court proceeding, David told
the Division caseworker he was "happy that his daughter [was] in his aunt's
care."
Two months later, the Division filed a guardianship complaint. During a
February 19, 2019 court hearing, the Division advised the court it scheduled
psychological and bonding evaluations for David in April 2019. The court noted
David participated in New Jersey Department of Corrections' services while
incarcerated. David explained he obtained a general equivalency diploma,
completed a "parenting program," and was participating in Narcotics
Anonymous and Alcoholics Anonymous.
David advised the court he was incarcerated at Southern State Prison,
which permitted visitation only on Saturdays and Sundays. He said the prison
had "a place where the kids can play . . . and bond with their dads and everything
like that." In response to the court's questions, David explained he had not had
visitation with Ann since his June 2018 incarceration. Counsel for the Division
advised the court the Division did not have staff supporting prison visitation on
weekends.
The court expressed concern David might not have visitation with Ann
prior to the scheduled psychological and bonding evaluations and suggested
A-5488-18T3 6 future court proceedings be utilized for David to visit with Ann. The court noted
Clara "was nice enough to . . . bring [Ann]" to the court proceeding "for [David]
to visit with his daughter," and it arranged for David to visit with Ann at the
courthouse after the proceeding ended. The court scheduled two additional case
management conferences prior to the psychological and bonding evaluations ,
noted Clara agreed to bring Ann to the court on those days, and explained David
would be permitted to visit with Ann while at the courthouse on those days
because arranging visitation with David at Southern State Prison on the
weekends was "really difficult, if not impossible."
Although the court arranged for David to visit with Ann at the scheduled
court appearances, David chose not to appear at the following case management
conference. He declined the opportunity to get on a Department of Corrections
bus to travel to the court for the scheduled case management conference and
visitation with Ann. The court noted Clara brought Ann to the court for the
visitation and advised Clara she was not required to attend or bring Ann to
subsequent case management conferences unless David advised his attorney in
advance he would attend. Clara advised the court she would be unable to attend
the next case management conference, which was scheduled for April 18, 2019,
because she would be away in Canada with Ann.
A-5488-18T3 7 David appeared at the April 18, 2019 case management conference. The
court explained Clara had been excused from attending the conference with Ann
because David failed to appear at the previous conference. David's counsel
asserted David opted not to attend the previous conference because David's
removal from the prison to attend the conference would have resulted in a
change in David's prison assignment from the "Farm" to general population.
The guardianship trial took place over four days. Clara testified
concerning her care of Ann, her interest in adopting Ann, and Ann's progress
and development. Clara kept pictures of David in her home and identified him
to Ann as her "daddy." Clara has a close relationship with David's mother, N.A.,
as well as his grandmother and other great aunt, and they often visit Ann at
Clara's home. Clara also cares for Ann's younger half-sister, D.L., who was four
months old at the time of trial. Clara explained she planned to support a
relationship between David and Ann. She also testified that during the time she
cared for Ann, David never contacted her to inquire about, or check on, Ann.
A Division case worker testified about her visits with Ann at Clara's home,
and she described Ann's interest in toys, Sesame Street, and going outside. She
stated Ann "is doing great," and she explained Clara includes N.A. and other
members of David's family in Ann's life. The case worker also testified Clara
A-5488-18T3 8 meets all of Ann's needs, and she is "very protective" of, and "an advocate for,"
Ann.
Dr. Linda Jeffrey was qualified as an expert in the areas of clinical and
forensic psychology and the treatment of alcohol and other psychoactive
substance abuse disorders. She conducted a two-day psychological evaluation
of David, a bonding evaluation of David and Ann, and a bonding evaluation of
Clara and Ann.
Dr. Jeffrey explained David had a history of physical fighting with his
paramours and problems with "non-violent conflict resolution." His criminal
history includes two convictions for terroristic threats against separate former
paramours, conspiracy, and the aggravated assault of S.B. David reported being
unemployed for three years prior to his incarceration, and his housing plan
following his incarceration was to reside with S.B. and her two daughters. He
acknowledged his name was not on the lease for S.B.'s residence.
David told Dr. Jeffrey he intended for S.B. to function as Ann's "mother
figure." David had never provided the Division with S.B.'s contact information,
and he had not offered S.B.'s name as a putative placement for Ann during his
incarceration. According to David, S.B. did not complete Division forms or
supply information to the Division about being a placement due to her "extensive
A-5488-18T3 9 work schedule." The Division caseworker testified S.B. had never requested
visits with Ann.
Dr. Jeffrey detailed the numerous tests she performed during David's
psychological evaluation. Based on the test results and information David
provided, she concluded there was a high probability he had a substance abuse
disorder. She further opined the tests showed that David had an "inflated sense
of self" and a "very strong finding of narcissism," and that he may "lack[]
personal insight and . . . show anger if confronted." Dr. Jeffrey testified the
results revealed David has "little insight about his own limitations" and would
"give little attention to the consequences of his behavior for other people."
Dr. Jeffrey offered diagnostic impressions of David, including narcissistic
personality disorder with antisocial and borderline features, parent-child
relational issues, chronic and severe adjustment disorder, major depressive
disorder, and substance abuse related disorders. She testified David "has
numerous and significant unresolved issues, both adjustment issues and
difficulties with self and mood regulation, . . . as well as significant problems
with rule[-]governed behavior." She noted David's "problems with rule
governed behavior . . . also include emotional immaturity and unstable
relationships," and "his clinical profile [is] very problematic for the capacities
A-5488-18T3 10 that are necessary for parenting, which focus very much on such issues as
insight, empathy, [and] parenting judgment."
Dr. Jeffrey concluded David "was not prepared to provide a minimal level
of safe parenting," and he would be unable to safely parent Ann in the
foreseeable future following his release from incarceration. She opined Ann
"would be at risk for harm if she were placed in [David's] care," including risks
"in terms of [her] physical environment . . . [and] psychological environment,"
because David's psychological issues rendered him unable to safely parent.
Dr. Jeffrey also testified concerning her bonding evaluation of David and
Ann. She explained David said he did not have any visitation with Ann at the
prison after his incarceration, and "he did not think . . . children should be
brought to a place of incarceration for visitation." After observing David and
Ann interacting during the evaluation, Dr. Jeffrey concluded Ann had no
psychological attachment to David and "[s]he related to him as a pleasant visitor
for a period of time and then she wanted to go." Dr. Jeffrey concluded severing
Ann's relationship with David would not place Ann at risk of harm because
"[t]here isn't a relationship there."
Dr. Jeffrey also detailed her bonding evaluation of Clara and Ann. She
described the interactions between Clara and Ann and concluded Ann "is
A-5488-18T3 11 securely attached to" Clara. Dr. Jeffrey testified Ann has an "affectionate tie"
to, and "love relationship" with, Clara, and Ann responded to Clara's "guidance
and . . . nurturing" as a "secure base, as a source of her basic trust, and as her
source of comfort and safety." Dr. Jeffrey opined Ann has a secure attachment
to Clara that "is of . . . profound psychological importance" because it "is the
basis of a child's mental health," "has tremendous consequences for how a
person develop[s]," and is "a very fundamental and . . . important part of normal
development."
According to Dr. Jeffrey, severing Ann's relationship with Clara "would,
in all likelihood, be a very serious emotional blow to" Ann. Dr. Jeffrey noted
"[t]here is really nothing else that matches the severance of a secure attachment
in terms of risk of harm to a child emotionally and psychologically." Dr. Jeffrey
testified severing a secure attachment "pulls the rug out from underneath the
child in the deepest and most destructive way."
Dr. Jeffrey concluded that severing two-year-old Ann's relationship with
Clara placed Ann at risk for "derail[ed] development," behavioral issues, and
"serious, serious trauma." Dr. Jeffrey determined further delay in providing Ann
with permanency would also affect Ann's "ability to learn to manage emotional
A-5488-18T3 12 arousal, anger, and [her ability] to engage in self-control" because "the first three
years [are] the critical period of development."
David testified on his own behalf. He described first learning he is Ann's
father and his first visit with her and his family members. He initially planned
to have Ann stay at his mother's home while he was incarcerated, but the
Division determined N.A.'s home was too small for the number of people living
in it at the time. He acknowledged not offering the Division any other possible
placements.
David also testified that following Ann's placement with Clara, he was not
able to speak with Ann from prison, and he never tried writing Clara letters she
could share with Ann. David testified he did not write letters because he was
focusing on "the main things [he] needed to do to try to come home and care
for" Ann. He said he completed prison "programs," including parenting classes,
and he would "continue to do anger management programs."
Following his release from incarceration, David planned to obtain
employment and reside with Ann, S.B., and her two daughters in S.B.'s home.
He testified that, during his incarceration, S.B. attempted to contact Ann, but
Clara would not let S.B. visit Ann. He intends to rely on his mother and other
family members to assist in parenting Ann. He also testified his mother used
A-5488-18T3 13 marijuana to address health issues but had not been prescribed medic al
marijuana.
David acknowledged he was incarcerated as the result of an altercation
with S.B., and that he pleaded guilty to aggravated assault by causing bodily
injury to S.B. However, he claimed "[t]here weren't any physical injuries done"
and he had no "physical altercation with" S.B. He admitted he had two prior
criminal convictions for terroristic threats of different "ex-girlfriends," and he
was incarcerated for violating his probation by committing the aggravated
assault on S.B., failing to complete anger management training, testing positive
for marijuana, and failing to report to probation as required. David agreed he
was first sentenced to probation in 2012 and "never successfully completed that
probation or any other term of probation."
David explained he failed to attend a Family Part court session that, in
part, had been arranged to allow visitation with Ann. He testified he did not
attend because of "transportation," and that, due to issues in the prison, "you
might not get woken up on time and the van will leave you." He testified he did
not travel to court for the visitation because he "would've lost [his] status[,]" but
he also stated he would not have lost his "status" if he attended a "family court
A-5488-18T3 14 hearing[]." David agreed Ann is "well cared for" by Clara, and Clara is
"absolutely" doing "a good job with" Ann.
In an opinion issued from the bench, the court found Clara, Dr. Jeffrey,
and the Division caseworker testified credibly and portions of defendant's
testimony were not credible. In its detailed and thorough opinion, the court
found the Division presented clear and convincing evidence satisf ying each
prong of the best interests of the child standard and entered an order terminating
David's parental rights to Ann. This appeal followed.
II.
Our scope of review on appeal from an order terminating parental rights
is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)
(citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We will uphold
a trial judge's fact-findings if they are "supported by adequate, substantial, and
credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527,
552 (2014) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104
(2008)). No deference is given to the court's "interpretation of the law," which
is reviewed de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012) (first citing
N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010), then citing
Balsamides v. Protameen Chems., 160 N.J. 352, 372 (1999)).
A-5488-18T3 15 "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 fami ly."
N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing
Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Only when the trial court's
conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate
court intervene and make its own findings to ensure that there is not a denial of
justice." E.P., 196 N.J. at 104 (quoting G.L., 191 N.J. at 605). We also accord
deference to the judge's credibility determinations "based upon his or her
opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs.
v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing Cesare, 154 N.J. at 411-
13).
When terminating parental rights, the court focuses on the "best interests
of the child standard" and may grant a petition when the four prongs set forth in
N.J.S.A. 30:4C-15.1(a) are established by clear and convincing evidence. In re
Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). "The four criteria
enumerated in the best interests standard are not discrete and separate; they
relate to and overlap with one another to provide a comprehensive standard that
identifies a child's best interests." Id. at 348.
A-5488-18T3 16 N.J.S.A. 30:4C-15.1(a) requires the Division to prove:
(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.
David argues the court's findings under the four prongs set forth in
N.J.S.A. 30:4C-15.1(a) are not supported by substantial credible evidence and
the court erred by finding the Division presented clear and convincing evidenc e
satisfying each prong of the statutory standard. After reviewing these arguments
in light of the record and applicable legal principles, we are not persuaded. We
address the four statutory prongs in turn.
A-5488-18T3 17 A.
The first prong of the best interests of the child standard requires clear and
convincing evidence "[t]he child's safety, health, or development has been or
will continue to be endangered by the parental relationship[.]" N.J.S.A. 30:4C-
15.1(a)(1). "[T]he Division must prove harm that 'threatens the child's health
and will likely have continuing deleterious effects on the child.'" N.J. Div. of
Youth & Family Servs. v. A.L., 213 N.J. 1, 25 (2013) (quoting K.H.O., 161 N.J.
at 352).
The harm need not be physical, as "[s]erious and lasting emotional or
psychological harm to children as the result of the action or inaction of their
biological parents can constitute injury sufficient to authorize the termination of
parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) (citing In
re Guardianship of J.C., 129 N.J. 1, 18 (1992)). The focus of the harm is not on
any isolated incident, but rather "the 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., 161 N.J. at 348. "Moreover, '[c]ourts need not wait to act until a child
is actually irreparably impaired by parental inattention or neglect.'" Div. of
Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 178 (2015) (alteration in
original) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).
A-5488-18T3 18 The harm may be established by "a delay in establishing a stable and
permanent home . . . ." D.M.H., 161 N.J. at 383. "A parent's withdrawal
of . . . solicitude, nurture, and care for an extended period of time is in itself a
harm that endangers the health and development of the child." Id. at 379 (citing
K.H.O., 161 N.J. at 352-54). Additionally, a parent's "persistent failure to
perform any parenting functions and to provide . . . support for [the
child] . . . constitutes a parental harm to that child arising out of the parental
relationship [that is] cognizable under N.J.S.A. 30:4C-15.1(a)(1) and (2)." Id.
at 380-81.
We reject David's claim the court did not make sufficient findings
supporting its conclusion the Division proved Ann's safety, health, or
development has been or will continue to be endangered by the parental
relationship. N.J.S.A. 30:4C-15.1(a)(1). We also are unpersuaded by David's
argument "it must be inferred from the [court's] decision that [it] determined
[David's] incarceration constituted harm to" Ann. Both arguments are
undermined by the record.
The court's decision is replete with references to the evidence establishing
David's relationship with Ann has caused, and will continue to cause, Ann harm.
The court further expressly addressed David's incarceration and made clear
A-5488-18T3 19 issues related to his incarceration constituted only a part of the circumstances
supporting its conclusion his relationship with Ann has caused, and will
continue to present a risk of, harm to Ann.
Our Supreme Court has explained that "incarceration alone–without
particularized evidence of how a parent's incarceration affects each prong of the
best interests of the child standard–is an insufficient basis for terminating
parental rights." R.G., 217 N.J. at 556. "[I]ncarceration is a relevant factor in
resolving termination of parental rights cases," id. at 555, but "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," ibid. (quoting In re Adoption of
Children by L.A.S., 134 N.J. 127, 137 (1993)).
In R.G., the Court required consideration of the following factors in the
assessment of incarceration as a factor in determining whether to terminate a
defendant's parental rights:
[P]erformance as a parent before incarceration, [and] to what extent his children were able to rely on him as a parent;
[W]hat effort, if any, he has made to remain in contact with his children since his incarceration;
[W]hether [the parent] will be able to communicate and visit with his children;
A-5488-18T3 20 [W]hat effect such communications and visitation will have on the children in terms of fulfilling the parental responsibility to provide nurture and emotional support, to offer guidance, advice, and instruction, and to maintain an emotional relationship with his children;
[T]he risk posed to his children by [the parent]'s criminal disposition;
[W]hat rehabilitation, if any, has been accomplished since [the parent]'s incarceration[,] and the bearing of those factors on the parent-child relationship;
[W]ith the aid of expert opinion, . . . the need of the children for permanency and stability and whether continuation of the parent-child relationship with [the parent] will undermine that need; and
[T]he effect that the continuation of the parent-child relationship will have on the psychological and emotional well-being of the children.
[217 N.J. at 555-56 (quoting L.A.S., 134 N.J. at 143- 44).] Here, the court considered each of the factors identified in R.G. in its
assessment of David's incarceration as one of the many circumstances pertinent
to its decision to terminate his parental rights. The court made findings
concerning David's involvement with Ann prior to his incarceration; his lack of
any attempt or effort to stay in contact with Clara and Ann during his
incarceration; his decision not to travel to the court to visit with Ann when that
opportunity was presented; the nature of the crime for which David was
A-5488-18T3 21 incarcerated—an aggravated assault of S.B. committed at the home she shared
with her two daughters and at which he asserted he intended to live with Ann;
David's efforts at rehabilitation while in prison; and Dr. Jeffrey's testimony
concerning David's inability to safely parent Ann, Ann's need for permanency,
and the manner in which continuation of her relationship with David will cause
Ann emotional and psychological trauma and harm.
More particularly, the court accepted Dr. Jeffrey's unrefuted expert
testimony that, independent of any issues related to David's incarceration and
based on his psychological disorders, David "is not now or in the foreseeable
future able to provide a minimal level of safe parenting of his two-year-old
daughter [Ann] and that she would be at harm if placed in his care now or in the
foreseeable future." The court also accepted Dr. Jeffrey's testimony David's
inability to safely care for Ann would further delay the permanency that is
"critical to her neurological, psychological, emotional, [and] educational
development." See L.A.S., 134 N.J. at 144 (explaining a factor relevant to
determining whether an incarcerated parent's parental rights should be
terminated includes consideration of expert testimony about the child's need "for
permanency and stability and whether continuation of the parent-child
relationship with [the parent] will undermine that need").
A-5488-18T3 22 The court also considered and rejected David's claim that proof of his
parenting skills was established by the time he spent living with S.B. and caring
for her two daughters prior to his incarceration. The court found the claim was
not credible and was belied by evidence showing that while David was
purportedly residing with S.B. and parenting her two daughters, he was
convicted of terroristic threats of another paramour by threatening her with
violence; had a separate conviction for conspiracy to commit theft; and
committed an aggravated assault upon S.B. at S.B.'s home. The court further
noted the evidence showed that, during the same time David alleged he lived
with S.B. and her two young daughters, David violated his probation by
committing new crimes, failing to complete anger management classes, failing
to report for probation, and testing positive for marijuana. The court found those
actions and failures were consistent with Dr. Jeffrey's determination David
suffered from "characterological deficits" and "a lack of emotional maturity and
inability to place the child's needs above [his] own."
Contrary to David's claim, the court did not rely on the fact he was
incarcerated as a basis for its decision to terminate his parental rights. Instead,
the court properly considered David's incarceration only "as a relevant factor,"
see R.G. at 555, and it did so while also assessing the factors established in R.G.,
A-5488-18T3 23 see id. at 555-56. Thus, the court's analysis and findings were properly "based
on a broad inquiry into all the circumstances bearing on incarceration and
criminality." L.A.S., 134 N.J. at 143. Each of the court's findings are supported
by substantial credible evidence, and we discern no basis to upset them.
David also claims the court erred in its assessment of the factors because
this case presents circumstances similar to those presented in R.G., where the
Court determined the defendant's incarceration alone did not support a
termination of his of parental rights. 217 N.J. at 559-65. As the motion court
found, David stands in shoes different than those worn by R.G. In R.G., the
defendant "called and wrote" to his child during his incarceration, id. at 560, but
here, while David routinely called and spoke with his mother and S.B. while in
prison, he never made any effort to communicate with Clara or speak with Ann
while he was incarcerated. See L.A.S., 134 N.J. at 143-44 (explaining
evaluation of harm to a child requires consideration of a parent's conduct prior
to and during incarceration).
Moreover, in R.G., the Court found there was no evidence the crime for
which the defendant was convicted "directly bore" on the defendant's ability to
parent. 217 N.J. at 560. That is not the case here. As noted, the court found
defendant's aggravated assault on S.B. and commission of other criminal
A-5488-18T3 24 offenses and violations of probation while he resided with S.B. and her two
daughters were consistent with certain psychological deficits and issues Dr.
Jeffrey believes rendered David unable to safely parent Ann at the time of trial
and in the foreseeable future. There is no indication in the Court's op inion the
defendant in R.G. presented any similar circumstances bearing on his ability to
safely parent his child.
Thus, contrary to David's contention, the court's decision included a
detailed summary and analysis of the testimony and evidence supporting its
findings under the first prong of the best interests standard, and our own
independent review of the record reveals the findings are supported by
substantial credible evidence. The court correctly concluded the Division
sustained its burden under the first prong of the best interests of the child
standard.
B.
"The second prong, in many ways, addresses considerations touched on in
prong one." F.M., 211 N.J. at 451. The focus is on parental unfitness. K.H.O.,
161 N.J. at 352; D.M.H., 161 N.J. at 378-79. In considering this prong, the court
should determine whether it is reasonably foreseeable that the parent can cease
A-5488-18T3 25 to inflict harm upon the child. N.J. Div. of Youth & Family Servs. v. A.W., 103
N.J. 591, 607 (1986).
Under the second prong, parental unfitness can be demonstrated in two
ways. K.H.O., 161 N.J. at 352. First, a party can show that it is reasonably
foreseeable that the parents will not or cannot cease to inflict harm upon the
child. A.W., 103 N.J. at 607, 615-16. This can be established by proving
"parental dereliction and irresponsibility," which can be shown by proof of
continued substance abuse, the inability to provide a stable home, and the
withholding of nurturing and attention. K.H.O., 161 N.J. at 353.
The other manner of establishing the second prong is by demonstrating
that removing the child from his or her resource placement would cause serious
and enduring mental or emotional impairment. N.J.S.A. 30:4C-15.1(a)(2).
Under this alternative, a trial court examines the bonds between a child and his
or her resource parent(s). See D.M.H., 161 N.J. at 382 (finding the second prong
from N.J.S.A. 30:4C-15.1(a) was established partly based upon the court-
appointed expert's determination that "breaking the children's bond with their
foster family would cause substantial and enduring harm to the children"). The
Court has held "[p]rong two may also be satisfied if 'the child will suffer
substantially from a lack of . . . a permanent placement and from the disruption
A-5488-18T3 26 of [the] bond with foster parents.'" F.M., 211 N.J. at 451 (alteration in original)
(quoting K.H.O., 161 N.J. at 363).
David argues the court ignored his commitment to Ann during the short
period after he learned he was her father and prior to his incarceration. He also
notes he attempted to obtain a placement of Ann with his mother; he completed
anger management classes and a parenting class in prison; he obtained his
general equivalency diploma; and he made arrangements for employment and a
residence with S.B. following his release from prison. He argues the court
ignored such evidence in concluding he is either unable or unwilling to safely
parent Ann.
Based on our review of the record, there is substantial credible evidence
supporting the court's finding the Division sustained its burden under the second
prong of the best interests standard. Dr. Jeffrey's unrefuted testimony
established that severing Ann's relationship with Clara will cause Ann
substantial and enduring psychological, emotional, and developmental harm.
See D.M.H., 161 N.J. at 382; see also J.C., 129 N.J. at 19 (explaining the
Division's proof in termination proceedings "should include the 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 the foster
A-5488-18T3 27 parent"). The court properly relied on that competent expert testimony to
determine harm will result if Ann's relationship with Clara is terminated and she
is reunified with David. Ibid.
In addition, the Division's evidence further supports a finding David will
be unable in the reasonably foreseeable future to cease inflicting harm upon the
child. A.W., 103 N.J. at 607. Again, Dr. Jeffrey's testimony established David's
numerous psychological issues rendered him unable to safely parent Ann.
Where, as here, a parent is incapable of safely parenting a child and providing a
safe and secure home, "the issue becomes whether the parent can cease causing
the child harm before any delay in permanent placement becomes a harm in and
of itself." N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418,
434 (App. Div. 2001). Dr. Jeffrey's testimony established David was not capable
in the foreseeable future of safely parenting Ann and any further delay in
providing permanency will cause Ann significant and lasting harm. Dr. Jeffrey's
testimony was unchallenged and uncontradicted. It provided ample support for
the court's determination the Division proved the second prong of the best
interests standard.
A-5488-18T3 28 C.
Under prong three, the trial court must consider whether "[t]he
[D]ivision . . . made reasonable efforts to provide services to help the parent
correct the circumstances which led to the child's placement outside the
home . . . ." N.J.S.A. 30:4C-15.1(a)(3). The Division's efforts must be analyzed
"with reference to the circumstances of the individual case[,]" including the
parent's degree of participation. D.M.H., 161 N.J. at 390.
N.J.S.A. 30:4C-15.1(c) defines "reasonable efforts" as those "attempts by
an agency authorized by the [D]ivision to assist the parents in remedying the
circumstances and conditions that led to the placement of the child and in
reinforcing the family structure[.]" The statute provides examples of
"reasonable attempts," including but 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.]
A-5488-18T3 29 We have previously recognized that reasonable efforts "vary depending
upon the circumstances of the removal." N.J. Div. of Youth & Family Servs. v.
F.H., 389 N.J. Super. 576, 620 (App. Div. 2007) (citing A.G., 344 N.J. Super.
at 437). The Division's success regarding this prong is not measured by the
parent's participation in the necessary services. D.M.H., 161 N.J. at 393.
"[E]ven [the Division's] best efforts may not be sufficient to salvage a parental
relationship." F.M., 211 N.J. at 452.
The court's finding the Division made reasonable efforts to provide the
services supporting David's reunification with Ann is supported by the evidence.
The Division worked directly with Alice to determine the identity of Ann's
father. Upon learning David was Ann's father, the Division immediately offered
weekly visitation with David and his family that ended only because of David's
incarceration. During his incarceration, the Division continued to provide
visitation with Ann for David's mother and his other family members. David's
argument the Division failed to arrange for visits with Ann at the prison is
undermined by his statement to Dr. Jeffrey that he "did not think . . . children
should be brought to a place of incarceration for visitation." When evidence
established the prison visitation schedule, transportation issues, Division
staffing issues, and Clara's unavailability to transport Ann to the prison made
A-5488-18T3 30 visitation at the prison impracticable, the court arranged for visitation between
David and Ann at the courthouse, but David chose not to appear. David also
routinely phoned his mother and S.B., but he opted to never contact Clara, his
great aunt, to speak with or ask about Ann.
The Division monitored David's participation in programs available in the
prison, including obtaining his general equivalency diploma, completing
parenting and anger management classes, and attending a substance abuse
program. The Division also provided psychological and bonding evaluations.
Moreover, the Division considered alternatives to termination of parental rights,
including exploring David's mother and Ann's maternal aunt, V.H., as
alternative placements for Ann. As noted, David's mother was ruled out due to
a prior Division history and for testing positive for marijuana, and Ann's
maternal aunt was ruled out for testing positive for marijuana. The Division
placed Ann with another family member, Clara, who proved to be an able and
caring resource parent. She has provided Ann with a safe and secure home, and
she wishes to adopt the child.
David argues the court erroneously concluded David can be properly
distinguished from the defendant in R.G. based on its finding David missed a
single visit with Ann when he failed to appear for the visitation arranged at the
A-5488-18T3 31 courthouse. David's incarceration provided challenges to the provision of
services, including visitation, but unlike the defendant in R.G., who made
consistent efforts to remain in contact with his child, the evidence shows David
made no effort to stay in contact with Ann despite the availabilit y of phone
contact with a resource parent who was a family member, and that David chose
not to visit with Ann when visitation was made available by the court.
In sum, based on the evidence presented, we are convinced the Division
clearly and convincingly proved it made reasonable efforts to provide the
services necessary to support David's reunification with Ann. Further,
reunification was not a viable option because Dr. Jeffrey's testimony
unequivocally established reunification with David will cause Ann harm and,
due to the nature and extent of his psychological issues, he will be unable in the
foreseeable future to safely parent Ann. See A.W., 103 N.J. at 605 (explaining
reunification is not an option when it could cause harm to the child).
D.
The fourth prong of the best interests of the child standard requires the
Division establish "[t]ermination of parental rights will not do more harm than
good." N.J.S.A. 30:4C-15.1(a)(4). Termination of parental rights poses a risk
to children due to the severing of the relationship with their natural parent, but
A-5488-18T3 32 it is based "'on the paramount need the children have for permanent and defined
parent-child relationships.'" K.H.O., 161 N.J. at 355 (quoting J.C., 129 N.J. at
26). Thus, "the fourth prong of the best interests standard [does not] require a
showing that no harm will befall the child as a result of the severing of biological
ties." Ibid.
Prong four "serves as a fail-safe against termination even where the
remaining standards have been met." G.L., 191 N.J. at 609. "[T]he question to
be addressed under [prong four] is whether, after considering and balancing the
two relationships, the child[ren] will suffer a greater harm from the termination
of ties with [their] natural parents than from permanent disruption of [their]
relationship with [their] foster parents." I.S., 202 N.J. at 181 (quoting J.N.H.,
172 N.J. at 478). Generally, to prove the fourth prong, the Division "'should
offer 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., 211 N.J. at 453
(quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007)).
The record reflects clear and convincing evidence supporting the trial
court's conclusion the termination of David's parental rights would not do more
harm than good. Considering all of the evidence presented by the Division
A-5488-18T3 33 relevant to the fourth prong, including the uncontroverted expert testimony, it
cannot be said the trial court's conclusion with respect to the fourth prong "'went
so wide of the mark that a mistake must have been made.'" M.M., 189 N.J. at
279 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super.
65, 69 (App. Div. 1989)).
E.
As we have detailed, the record supports the trial court's determination the
Division established each prong of the best interests standard by clear and
convincing evidence. To the extent we have not already addressed them, any
additional arguments made by David lack sufficient merit to warrant discussion
in this opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-5488-18T3 34