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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3650-15T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
S.L.,
Defendant-Appellant. ______________________________
IN THE MATTER OF THE GUARDIANSHIP OF A.L., a minor. __________________________________________________
Submitted April 4, 2017 – Decided May 12, 2017
Before Judge Messano and Suter.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-82-14.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel DiLella, Designated Counsel, on the brief).
Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Megan E. Shafranski, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Michele C. Scenna, Designated Counsel, on the brief).
PER CURIAM
Defendant S.L. appeals from the Family Part's April 14, 2016
order terminating his parental rights to his daughter, A.L. (Amy). 1
Defendant argues the Division of Child Protection and Permanency
(the Division) failed to prove by clear and convincing evidence
each prong of the statutory best-interests-of-the-child standard
contained in N.J.S.A. 30:4C-15.1(a):
(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 [D]ivision 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.
1 We use initials and pseudonyms of those involved to maintain confidentiality.
2 A-3650-15T2 [Ibid.; see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]
The Division and Amy's Law Guardian counter by arguing the judge
correctly concluded the Division had met the requisite burden of
proof, and both urge us to affirm the termination order. We have
considered the arguments raised in light of the record and
applicable legal standards. We affirm.
I.
Amy was born prematurely in July 2012. Upon birth, Amy and
her nineteen-year-old mother, J.N. (Janet), tested positive for
marijuana, and Amy remained hospitalized in the Neo-Natal
Intensive Care Unit (NICU) for the next four months. Janet
admitted smoking marijuana throughout her pregnancy and did not
receive pre-natal medical care. The Division investigated and
substantiated a finding of neglect against Janet.2
The Division had been involved with defendant and Janet since
2010, when their eleven-week-old son was taken to the hospital
with a fractured femur and parenchymal hemorrhage of the brain.
Defendant dropped Janet and the child off at the hospital but
never went inside because he had outstanding warrants for his
arrest. The child was returned to Janet's care in February 2011,
2 Janet executed a voluntary surrender of her parental rights during the course of this litigation.
3 A-3650-15T2 but, in July, he accidentally choked to death on candy while left
alone in his crib. In the interim, in January 2011, Janet and
defendant had a second child, a girl, who was born prematurely and
perished the same day.3
In September 2012, the Division filed a verified complaint
seeking care, custody and supervision of Amy. At the time,
defendant, who was forty-one-years old, was incarcerated at the
Monmouth County Correctional Institute (MCCI), where he remained
until January 2013. The Division placed Amy in a resource home
upon her discharge from the NICU in October 2012. She has remained
there ever since, and Amy's resource family wishes to adopt her.
Defendant provided contact information to the Division upon
his release from the MCCI. However, he did not seek visitation
with Amy. The Division's efforts to contact defendant met with
little success thereafter, and, in May, when defendant called the
Division to report Janet's excessive drinking, he told the
caseworker he was facing additional criminal charges and possible
incarceration.
In August 2013, defendant was arrested for failing to appear
in court and remanded to the MCCI. In January 2014, defendant
told the Division that N.B. (Nancy), the mother of two of
3 In total, defendant fathered six children with four different women.
4 A-3650-15T2 defendant's other children, was seeking custody of Amy at
defendant's request. The judge denied Nancy's application but
ordered the Division to evaluate her for placement purposes.
Although Nancy was licensed by the Division in July, the Division
did not support her visitation with Amy because she was not a
relative. Nancy did not seek the court's intervention, and neither
of Nancy's two children, Amy's half-siblings, who were adults at
the time, ever contacted the Division.
In April 2014, the judge entered an order permitting defendant
to have visitation with Amy at the MCCI one day per week. However,
defendant was transferred shortly thereafter to Northern State
Prison, and Amy's first visit with defendant took place there in
October. The Division attempted to continue visitation at the
prison, but there were frequent roadblocks, including defendant's
placement in administrative segregation. In total, Amy had
approximately five visits with defendant, many of which were non-
contact visits where defendant and Amy interacted from different
sides of a glass partition. The child's obvious distress caused
by traveling to and entering the prison shortened a December 2015
visit at defendant's request.
In the interim, defendant had pled guilty to two indictments
and was sentenced to eight years' imprisonment with a four-year
period of parole ineligibility. Defendant was incarcerated when
5 A-3650-15T2 the guardianship trial began in June 2015, and remained so through
its completion in April 2016. His first parole eligibility date
was February 17, 2017, and his maximum release date was February
19, 2019.4
At trial, the Division produced eight lay witnesses and Dr.
Alan J. Lee, Psy.D., as an expert. Dr. Lee conducted a
psychological evaluation of defendant and a bonding evaluation of
Amy and her resource parent. The Law Guardian called an expert
witness, Dr. David R. Brandwein, Psy.D., who also conducted a
bonding evaluation of Amy and her resource parent.
Defendant testified and called Nancy as a witness. Dr. Jesse
Whitehead, Jr., Psy.D., testified as defendant's expert witness.
Dr. Whitehead had performed a psychological evaluation of
defendant.
In his oral opinion following trial, Judge Terence P. Flynn
reviewed the evidence, including defendant's lengthy criminal
record, his failure to comply with Division services regarding the
other two children he fathered with Janet and his lack of contact
with the Division after Amy was released from the hospital. The
judge cited Nancy's trial testimony, which "provided some insight
into the defendant and his involvement with her children." Judge
4 During the pendency of this appeal, we have not been advised of any change in defendant's custodial status.
6 A-3650-15T2 Flynn noted defendant never lived with Nancy, never provided child
support and never contributed to the college costs of his two
adult children. The judge noted that defendant never thought of
Nancy as a permanent placement for Amy, but rather viewed Nancy
as "a temporary caretaker for his children. His ultimate goal was
to personally care for [Amy]."
The judge recounted the Division's efforts to facilitate
visitation between Amy and defendant. He noted defendant's refusal
to permit the Division to access his prison records in order to
verify defendant's assertion that he had participated in classes
during his incarceration.
Judge Flynn reviewed the expert testimony. He found Dr.
Lee's testimony to be credible. The judge accepted Dr. Lee's
opinions regarding defendant's personality disorder and
"maladaptive personality and character traits that adversely
affect his overall functioning and . . . negatively affect . . .
his ability to parent." The judge credited Dr. Lee's opinion that
these "character traits were long lasting and unlikely to change."
Dr. Lee opined that defendant "remained at a heightened risk for
criminal recidivism" and could not be considered "an independent
caretaker [for Amy] now or within the foreseeable future."
The judge noted similarities between Dr. Lee's and Dr.
Whitehead's opinions. While Dr. Whitehead disputed Dr. Lee's
7 A-3650-15T2 diagnosis, Dr. Whitehead "found . . . talk of reunification would
be premature . . . . [S]uch talk . . . could only occur after the
defendant had been further assessed upon his release from prison."
In sum, Judge Flynn stated Dr. Whitehead's opinion, "at . . . best
. . . [was] that there was some potential for doing well on
[defendant's] part[,]" but there was "no way [to] be certain of
fulfillment over a definite period of time." Judge Flynn further
noted that both Dr. Lee and Dr. Whitehead agreed that a bonding
evaluation between defendant and Amy would be "fruitless," because
"no bond could be expected."
Judge Flynn credited Dr. Brandwein's opinion that Amy was
"securely attached" to her resource family, and there was "a bond
that could be expected to be strengthened over time." He noted
Dr. Lee's opinion that Amy had a strong bond with her resource
family, was "clearly free of stress" and "needed permanency."
Although she continued to need medical attention, Amy was
"thriving" and ready to be adopted.
Judge Flynn then considered the four prongs of N.J.S.A. 30:4C-
15.1(a). We discuss his reasoning more fully hereafter. The
judge entered the judgment terminating defendant's parental rights
to Amy, and this appeal ensued.
8 A-3650-15T2 II.
The principles guiding our review are well-known. "The focus
of a termination-of-parental-rights hearing is the best interests
of the child." N.J. Div. of Youth & Family Servs. v. F.M., 211
N.J. 420, 447 (2012). The four standards contained in N.J.S.A.
30:4C-15.1(a) require a fact-sensitive analysis, and "are neither
discrete nor separate. They overlap to provide a composite picture
of what may be necessary to advance the best interests of the
children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.
261, 280 (2007) (quoting N.J. Div. of Youth & Family Servs. v.
F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (emphasis in the
original)).
"We will not disturb the family court's decision to terminate
parental rights when there is substantial credible evidence in the
record to support the court's findings." N.J. Div. of Youth &
Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re
Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We defer to
the factual findings of the trial judge, who had "the opportunity
to make first-hand credibility judgments about the witnesses
. . . [and] has a 'feel of the case' that can never be realized
by a review of the cold record." Ibid. (quoting M.M., supra, 189
N.J. at 293). Moreover, because of "the family courts' special
jurisdiction and expertise in family matters," we accord even
9 A-3650-15T2 greater deference to the judge's fact finding. N.J. Div. of Youth
& Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (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., supra, 196 N.J. at 104 (quoting N.J. Div. of
Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). "A
trial court's interpretation of the law and the legal consequences
that flow from established facts are not entitled to any special
deference." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J.
527, 552-53 (2014) (quoting Manalapan Realty, L.P. v. Manalapan
Twp. Comm., 140 N.J. 366, 378 (1995)).
Defendant argues the Division failed to prove he caused Amy
harm and, instead, relied upon defendant's incarceration as the
sole basis to prove prong one. He contends that Judge Flynn
misapplied case law regarding the importance of a parent's
incarceration on the best interests analysis. We disagree.
We have recognized that incarceration "necessarily limits a
person's ability to perform the regular and expected parental
functions. It also may serve to frustrate nurturing and the
development of emotional bonds and [may be] a substantial obstacle
to achieving permanency security, and stability in the child's
10 A-3650-15T2 life." N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super.
525, 534 (App. Div. 2006) (citations omitted) (internal quotation
marks omitted). Incarceration alone, however, "is an insufficient
basis for terminating parental rights." R.G., supra, 217 N.J. at
556. Rather, the Division must present "particularized evidence
of how a parent's incarceration affects each prong of the best-
interests-of-the-child standard." Ibid. In considering
incarceration within this framework, relevant issues are:
[P]erformance as a parent before incarceration, to what extent his children were able to rely on him as a parent, and what effort, if any, he has made to remain in contact with his children since his incarceration. The court should also consider whether [the parent] will be able to communicate and visit with his children; what 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. Further, the court must consider the risk posed to his children by [the parent]'s criminal disposition; what rehabilitation, if any, has been accomplished since [the parent]'s incarceration; and the bearing of those factors on the parent-child relationship. The court should, with the aid of expert opinion, determine the need of the children for permanency and stability and whether continuation of the parent-child relationship with [the parent] will undermine that need. Further, the court should determine the effect that the continuation of the parent-child relationship will have on the
11 A-3650-15T2 psychological and emotional well-being of the children.
[Id. at 555-56 (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 143-44 (1993)).]
We conclude Judge Flynn scrupulously followed the Court's
guidance.
Judge Flynn carefully considered defendant's lack of
involvement with Amy before he was incarcerated. The judge
acknowledged defendant desired visitation with Amy after he was
incarcerated, but only because of the Division's efforts. Judge
Flynn noted that defendant's criminal history was an indicator of
recidivism. Relying on our decision in New Jersey Division of
Youth and Family Services v. T.S., 417 N.J. Super. 228 (App. Div.
2010), certif. denied, 205 N.J. 519 (2011), Judge Flynn concluded
that defendant had effectively abandoned Amy. See id. at 242-43
(noting the defendant's lack of prior relationship with his child
and failure to demonstrate an ability to parent evidenced an
abandonment of parental responsibility).
Defendant argues the Division failed to prove prong two,
i.e., that he was unable or unwilling to ameliorate the
circumstances that led to Amy's placement. He contends Judge
Flynn erred by relying upon Dr. Lee's opinion that defendant was
unlikely to be a fit parent in the foreseeable future.
12 A-3650-15T2 The second prong "relates to parental unfitness," which may
be established by demonstrating that "the parent is 'unwilling or
unable to eliminate the harm'" or "the parent has failed to provide
a 'safe and stable home'" and "a 'delay [of] permanent placement'
will further harm the child." K.H.O., supra, 161 N.J. at 352
(quoting N.J.S.A. 30:4C-15.1(a)(2)); see also F.M., supra, 211
N.J. at 451 ("Prong two may also be satisfied if 'the child will
suffer substantially from a lack of . . . a permanent placement
and from the disruption of [the] bond with foster parents.'"
(alteration in original) (quoting K.H.O., supra, 161 N.J. at 363)).
Judge Flynn found that on one level, defendant's continued
incarceration made it impossible for him to parent Amy. However,
based upon the expert testimony, he also concluded defendant was
unable or unwilling to change his criminal lifestyle. The judge
noted defendant continued his life of crime after Amy was born,
rejecting Dr. Whitehead's opinion that the earlier accidental
death of defendant's child was a "wake up call." Moreover, Judge
Flynn cited the expert testimony that Amy needed permanency in her
life, not the disruption of the bond already formed with her
putative adoptive family.
Regarding the third prong, defendant contends the Division
failed to follow through on placement options he provided,
including Amy's placement with Nancy. He argues the most
13 A-3650-15T2 appropriate placement for Amy was with her half-siblings, and the
Division failed to do what was necessary to foster visitation and
potentially forge a relationship with them.
The Division must make "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 must
"consider[] alternatives to termination of parental rights."
N.J.S.A. 30:4C-15.1(a)(3). Services under the third prong
"contemplate[] efforts that focus on reunification." K.H.O.,
supra, 161 N.J. at 354. "Experience tells us that even [the
Division's] best efforts may not be sufficient to salvage a
parental relationship." F.M., supra, 211 N.J. at 452. "Even if
the Division ha[s] been deficient in the services offered to" a
parent, reversal is not necessarily "warranted, because the best
interests of the child controls" the ultimate determination
regarding termination of parental rights. N.J. Div. of Youth &
Family Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div.),
certif. denied, 192 N.J. 68 (2007).
Judge Flynn found the Division had exercised reasonable
efforts to reunify defendant and Amy, but defendant failed to
cooperate. He noted the Division was only able to locate defendant
after he was incarcerated, and problems with visitation were not
the result of "any lack of effort by the Division." The judge
14 A-3650-15T2 noted the litigation was more than eighteen months old before
defendant offered Nancy as a placement alternative, and defendant
always considered Nancy as only an interim caretaker for Amy.
We have recognized "the difficulty and likely futility of
providing services to a person in custody[.]" F.H., supra, 389
N.J. Super. at 621 (quoting S.A., supra, 382 N.J. Super. at 535-
36). Further, the need to provide services may be "obviat[ed]"
when the parent "ha[s] no relationship with [his child] and could
not offer the child permanency." T.S., supra, 417 N.J. Super. at
242.
Defendant cites our decision in New Jersey Divison of Youth
and Family Services v. K.L.W., 419 N.J. Super. 568 (App. Div.
2011), for the proposition that the Division was required to place
Amy with Nancy, because, although Nancy was not a relative, Nancy's
two adult children were defendant's children and Amy's half-
siblings. Defendant misconstrues our decision.
K.L.W. only recognized the Division's statutory obligation
to explore placement options with relatives. Id. at 577-80.
However, there is no presumption in favor of placement with a
relative. Id. at 580.
In this case, the Division considered Nancy as a placement
option even though Nancy was not Amy's blood relative. Notably,
neither of Nancy's children, who were blood relatives of Amy, came
15 A-3650-15T2 forth to exercise visitation with the child, much less offer
themselves as placement resources.
Finally, defendant argues the Division failed to prove prong
four. He cites Dr. Whitehead's opinion that Amy, who is African-
American, would be best served by a placement with her African-
American half-siblings, or, alternatively with an African-American
resource family, and, thirdly, with an economically capable family
of another race, like her resource family. Defendant contends the
judge ignored the "entire program" Dr. Whitehead "laid out" for
defendant to regain custody of Amy. He argues that Amy's placement
with Nancy was a critical component of that plan. Additionally,
defendant contends Dr. Brandwein specifically opined that, given
Amy's young age, severing ties with her putative adoptive family
would not cause enduring harm.
The statute's fourth prong mandates a determination as to
"whether a child's interest will best be served by completely
terminating the child's relationship with that parent." E.P.,
supra, 196 N.J. at 108. Prong four "serves as a fail-safe against
termination even where the remaining standards have been met."
G.L., supra, 191 N.J. at 609.
In most circumstances, the court must examine the child's
bond with both biological and foster parents. K.H.O., supra, 161
N.J. at 355. "[W]here it is shown that the bond with foster
16 A-3650-15T2 parents is strong and, in comparison, the bond with the natural
parent is not as strong," termination may be appropriate. Id. at
363. "[A]fter considering and balancing the two relationships,"
the question becomes will "the child . . . suffer a greater harm
from the termination of ties with her natural parents than from
the permanent disruption of her relationship with her foster
parents[?]" Id. at 355. Answering that question "necessarily
requires expert inquiry specifically directed to the strength of
each relationship." Ibid. (quoting In re Guardianship of J.C.,
129 N.J. 1, 25 (1992)).
Judge Flynn found that Amy had no relationship with defendant,
had been in a nurturing, safe, and secure home since birth and was
thriving. There was no harm in terminating defendant's parental
rights because there was no bond between Amy and defendant. Judge
Flynn credited Dr. Lee's opinion that Amy would in fact suffer
serious harm if the bond with her foster family was broken.
In sum, as to each of the four statutory prongs, there was
"substantial credible evidence in the record to support the court's
findings." E.P., supra, 196 N.J. at 104. We find no reason to
reverse the order under review.
Affirmed.
17 A-3650-15T2