DCPP VS. M.A.I., J.H., AND K.T., IN THE MATTER OF THE GUARDIANSHIP OF M.A.I., M.A.T., J.S.R.B., AND M.W.B. (FG-07-0051-18, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-5272-17T2
A-5275-17T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
M.A.I. and J.H.,
Defendants-Appellants,
and
K.T.,
Defendant.
____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF M.A.I.,
M.A.T., J.S.R.B., and M.W.B.,
Minors.
____________________________
Submitted October 16, 2019 – Decided December 2, 2019
Before Judges Yannotti and Currier.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0051-18.
Joseph E. Krakora, Public Defender, attorney for
appellant M.A.I. (Jennifer L. Gottschalk, Designated
Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant J.H. (Robyn A. Veasey, Deputy Public
Defender, of counsel; Gilbert G. Miller, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Donna Sue Arons, Assistant Attorney
General, of counsel; Lisa J. Rusciano, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Margo E.K. Hirsch, Designated
Counsel, on the brief).
PER CURIAM
M.A.I. is the mother of four minor children, M.I., M.T., J.B., and M.B.,
and J.H. is M.I.'s father. 1 M.A.I. and J.H. appeal from an order of the Family
Part dated June 29, 2018, which terminated their parental rights and awarded
guardianship of the children to the Division of Child Protection and Permanency
1
In this opinion, we refer to the parties and others with initials. To avoid
confusion, the minor children's middle initials have been omitted.
A-5272-17T2
2
(Division). We address both appeals in this opinion. For the reasons that follow,
we affirm.
I.
In October 2012, the Division received a report that M.A.I., who was then
fifteen years old and thirty-six weeks pregnant, had been admitted to a hospital
with high blood pressure. The Division also was informed that M.A.I. had
acknowledged using marijuana. Later that month, M.A.I. gave birth to M.I. The
child's birth certificate did not identify a father, but M.A.I. reported that J.H.
was the father.
In April 2014, M.A.I. gave birth to M.T., but a father was not listed on the
birth certificate. Thereafter, the Division received other referrals regarding
M.A.I. and the children. On December 9, 2014, the trial court granted the
Division's application for care and supervision of the children. The Division
thereafter provided the family with services.
In January 2015, the court ordered J.H. to complete a paternity test. He
did not comply. In August 2015, the court again ordered J.H. to comp lete a
paternity test, and he again failed to do so. At a hearing conducted in September
2015, J.H. denied paternity of M.I. but refused to be swabbed in court for the
paternity test. He also refused to fill out a form to obtain legal representation.
A-5272-17T2
3
In October 2015, the court found that K.T. was M.T.'s father. In December
2015, the court again ordered J.H. to participate in the paternity test , but he did
not comply with the order. In February 2016, the court terminated the protective
services litigation because M.A.I. and J.H. had not maintained contact with the
Division for six months. That month, M.A.I. gave birth to J.B., and S.B. was
identified as J.B.'s father.
In October 2016, after receiving a report that M.A.I. was pregnant and not
properly feeding or bathing the children, the Division's investigators contacted
M.A.I. and she came to the Division's office with the children. The Division's
workers noted that the children had poor hygiene, J.B. had a bad diaper rash,
M.I.'s teeth were "yellow and rotten," and M.I.'s clothes were soiled.
M.A.I. reported that she had been living with a cousin, and that she and
S.B. had a physical altercation. M.A.I. said she was three months pregnant, and
admitted that she smoked marijuana three times a week. She also stated that her
cousin had asked her to move out of the apartment. One of the Division's
investigators interviewed M.I. and M.T. They reported that they observed the
physical altercation between M.A.I. and S.B.
The Division conducted an emergency removal of the children and placed
them in resource homes. Thereafter, the court entered an order granting the
A-5272-17T2
4
Division's application for care, custody, and supervision of the children. In its
order, the court noted that M.A.I. did not have stable housing, and that M.A.I.
had previously been involved with the Division, but had not completed services.
The order also stated that J.H. "has an open case with the Division in which the
children have been removed from the home[,]" had two prior felony convictions,
and was "currently incarcerated" on charges related to a controlled dangerous
substance (CDS).
Thereafter, the Division scheduled supervised visits with the children.
She did not, however, attend all of the scheduled visits. Furthermore, the
Division referred M.A.I. for substance abuse treatment, domestic violence
counseling services, and parenting skills training. The Division also provided
family team meetings and bus cards for transportation to services. M.A.I. did
not complete these services.
In February 2017, the court held a fact-finding hearing and determined by
a preponderance of the evidence that M.A.I. abused or neglected her children.
The Division placed M.I. and M.T. with R.T., M.T.'s paternal grandmother.
That month, M.A.I. attended a family team meeting and reported that she was
living with her sister, but she failed to provide the Division with an address.
A-5272-17T2
5
In April 2017, M.A.I. gave birth to M.B., and S.B. was listed as the child's
father on the birth certificate. The court granted the Division care, custody and
supervision of M.B. The Division placed M.B. with R.T. Thereafter, the
Division endeavored to assist M.A.I. to find suitable housing, but she did not
permit the Division to make the required assessment of her home. She also
missed visits with the children and failed to complete services.
In October 2017, the court approved the Division's permanency plan,
which had changed from reunification to termination of parental rights and
adoption. The court noted that M.A.I. had not complied with services, J.H. was
missing and had not planned for M.I., and K.T. was in jail. In addition, paternity
tests revealed that S.B. was not J.B. or M.B.'s father, and the court dismissed
him from the case.
In November 2017, the Division filed its complaint for guardianship. That
month, the Division located J.H. in the county jail, where he was incarcerated
as a result of federal charges, and he was served with the complaint. In the
months that followed, the Division provided M.A.I. with supervised visits and
referred her for services. At the time, M.A.I. was residing with her sister and
did not have her own residence. M.A.I. claimed she was employed and provided
the Division with a pay stub to substantiate her claim.
A-5272-17T2
6
In January 2018, Dr. Alison Strasser Winston performed a psychological
evaluation of M.A.I. Dr. Winston determined that M.A.I. was "currently
incapable of providing her children with a safe and stable environment and
w[ould] not be able to safely parent her children at any time within the
foreseeable future." Dr. Winston recommended that the Division continue to
pursue the termination of M.A.I.'s parental rights.
Dr. Winston also recommended that M.A.I. engage in "therapeutically-
supervised visitation with her children[,]" "anger management/batterers'
intervention counseling[,]" individual psychotherapy, substance abuse
treatment, parenting classes, and a GED program. She also recommended that
M.A.I. secure appropriate housing. The Division referred M.A.I. for additional
services. She attended most of the scheduled visits with the children.
In March 2018, the Division's caseworker met with J.H. in the county jail.
She told him the Division's goal was termination of parental rights and adoption.
The worker asked J.H. to fill out a form so an attorney could be appointed to
represent him in the proceedings. J.H. refused to complete the form and
requested a paternity test. He did not request visits with M.I.
In April 2018, J.H. completed his portion of the paternity test, which
revealed he is M.I.'s father. M.A.I. completed some services, and continued to
A-5272-17T2
7
attend visits with the children. She was unable to secure housing and, although
she reported that she had a job, she did not know when she would start working.
Dr. Winston conducted an updated psychological evaluation and a
bonding evaluation with M.A.I. Dr. Winston found that the children would
suffer serious and enduring emotional harm if removed from their resource
homes "in order to reunify them with a biological parent who continues to have
anger and other mental health issues and lacks stable housing and
employment[.]"
Dr. Winston noted that M.A.I. had completed many services, but they
were "not sufficient to adequately address her issues[.]" Dr. Winston
recommended that M.A.I. participate in more intensive anger management
counseling, individual psychotherapy, an updated psychiatric evaluation, and
additional parenting classes.
Dr. Winston also opined that M.A.I. "remain[ed] incapable of providing
her children with a safe and stable environment." She stated that the children
would experience minimal emotional harm if M.A.I.'s parental rights were
terminated, and the resource parents could mitigate any such harm. She
recommended termination of M.A.I.'s parental rights.
A-5272-17T2
8
In May 2018, the Division's caseworker met J.H. in the county jail and
informed him the paternity test confirmed he was M.I.'s father. She asked J.H.
about his plans for M.I. He said that he was focused on his criminal case and
did not have a plan for her care. The trial court ordered J.H. to participate in a
psychological evaluation, which Dr. Winston could conduct at the jail.
J.H. appeared in court for a pre-trial conference. He did not contest the
results of the paternity test, but he refused to participate in a psychological
evaluation. The trial court accepted K.T.'s identified surrender of his parental
rights to M.T. to his mother, R.T. That month, a federal court sentenced J.H. to
thirty-five months in federal prison for the sale or distribution of a CDS and
unlawful transportation of a firearm.
In June 2018, the court conducted a trial on the Division's guardianship
complaint. The Division presented Dr. Winston and the Division's caseworker
as its witnesses. M.A.I. testified on her own behalf. Neither the Law Guardian
nor J.H. called any witnesses or presented any evidence. During the
guardianship trial, M.I. visited J.H. in jail. Apparently, M.I. thought K.T. was
her father and she seemed confused when told J.H. was her father.
The court entered an order dated June 29, 2018, which terminated M.A.I.'s
parental rights to her four children and terminated J.H.'s parental rights to M.I.
A-5272-17T2
9
The order also terminated the parental rights of the unidentified fathers of J.B.
and M.B. In an accompanying written opinion, the court found that the Division
had established each of the four prongs of the "best interests of the child" test
by clear and convincing evidence. These appeals followed.
II.
The scope of our review in an 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)).
"Appellate courts must defer to a trial judge's findings of fact if supported by
adequate, substantial, and credible evidence in the record." Ibid. (citing In re
Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
The Division may initiate a petition to terminate parental rights in the
"best interests of the child" and the court may grant the petition if the Division
establishes the criteria codified in N.J.S.A. 30:4C-15.1(a) with clear and
convincing evidence. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145,
166-69 (2010). "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 166
A-5272-17T2
10
(quoting N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506-07
(2004)).
Prong one of the best interests test requires the Division to prove that
"[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). This
prong focuses on the negative effect the parent-child relationship has upon the
child's safety, health, and development. In re Guardianship of K.H.O., 161 N.J.
337, 348 (1999). To satisfy prong one, the Division is not required to show that
the child was physically harmed, and evidence that the child suffered emotional
or psychological harm is sufficient. In re Guardianship of K.L.F., 129 N.J. 32,
43-44 (1992).
The second prong requires the Division to show that "[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." N.J.S.A. 30:4C-15.1(a)(2). In
addressing this prong, the court must focus on whether the parent has overcome
the harms that endanger the child and whether the parent is able to prevent
further harm from the parental relationship. K.H.O., 161 N.J. at 348-49.
A-5272-17T2
11
Prong three of the best interests test requires the Division to establish that
it "made reasonable efforts . . . to help the parent correct the circumstances
which led to the child's placement outside the home" and considered alternatives
to termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3). Prong three
"contemplates efforts that focus on reunification of the parent with the child."
K.H.O., 161 N.J. at 354. Moreover, the reasonableness of the Division's efforts
is not measured by whether its efforts were successful in bringing about
reunification of the parent and child. In re Guardianship of DMH, 161 N.J. 365,
393 (1999).
To establish prong four, the Division must present clear and convincing
evidence showing that "[t]ermination of parental rights will not do more harm
than good." N.J.S.A. 30:4C-15.1(a)(4). "[T]he fourth prong of the best interests
standard cannot require a showing that no harm will befall the child as a result
of the severing of biological ties." K.H.O., 161 N.J. at 355.
Instead, the court must balance the relationships of the biological parent
and the child, "and determine whether the child will suffer greater harm from
terminating the child's ties with" his or her biological parent than from
permanent disruption of the child's relationship with a resource parent. N.J. Div.
A-5272-17T2
12
of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 435 (App. Div. 2001)
(citing K.H.O., 161 N.J. at 355).
III.
We turn to M.A.I.'s appeal. She argues that the Division failed to establish
prongs one, three, and four of the best interests test. 2 She also argues that the
trial court failed to recognize her constitutional right to parent her children.
A. Prong One.
M.A.I. argues that the children never suffered any long-term harm while
in her care. She contends any parenting issues were rectified when the children
were in foster care. She also claims that while the Division was concerned about
her altercation with S.B., the children did not witness the altercation.
M.A.I. further argues that the court erred by focusing on her
"homelessness and lack of employment instead of on the health, physical and
emotional effects of [her] parenting upon [the] children." She contends this
evidence may be considered under prong two, but argues that this evidence has
no place in the court's analysis of prong one.
2
Because M.A.I. has not challenged the judge's finding that the Division
established prong two, that issue is deemed waived. See Sklodowksy v. Lushis,
417 N.J. Super. 648, 657 (App. Div. 2001) (citing Jefferson Loan Co. v. Session,
397 N.J. Super. 520, 525 n.4 (App. Div. 2008)).
A-5272-17T2
13
We are convinced there is sufficient credible evidence in the record to
support the trial court's finding that the children's safety, health, and
development were endangered by their relationship with M.A.I. The record
shows that the Division removed the children because M.A.I. was pregnant,
admitted she regularly smoked marijuana, was homeless, lacked employment,
and had recently been involved in a domestic violence incident, which two of
the children said they witnessed. During the protective services litigation,
M.A.I. failed to complete services and take the actions required so that the
children could be returned to her care.
Moreover, while M.A.I. completed some services after the Division filed
its guardianship action, Dr. Winston opined that M.A.I. was not able to place
what she learned into practice. The doctor explained that M.A.I. required
additional services to address her "issues." Moreover, she never secured
appropriate housing for herself and the children, and did not maintain
employment on a consistent basis. Although the Division had provided M.A.I.
with an array of services, she remained unable to provide the children with a
safe and secure home, as Dr. Winston testified.
This evidence thus supported the court's finding that the children were
harmed by M.A.I.'s relationship with them. See DMH, 161 N.J. at 379 (noting
A-5272-17T2
14
that "[t]he lack of a permanent, safe, and stable home" can cause harm); Div. of
Youth & Family Servs. v. D.H., 398 N.J. Super. 333, 341-42 (App. Div. 2008)
(finding prong one met where parent had mental health issues, failed to comply
with the Division's recommendations, was unemployed, and did not have her
own housing).
We reject M.A.I.'s contention that the trial court erred by considering
evidence of her homelessness and lack of employment in determining whether
the Division established prong one. Our Supreme Court has noted that prongs
one and two of the test "are related to one another, and evidence that supports
one informs and may support the other as part of the comprehensive basis for
determining the best interests of the child." DMH, 161 N.J. at 379 (citing
K.H.O., 161 N.J. at 348-49, 351-52).
B. Prong Three.
M.A.I. argues that the trial court erred by finding that the Division
satisfied this prong. She claims the Division did not adequately assist her in
finding appropriate housing. She further argues that the court erroneously
"found" that she did not "participate meaningfully in any services other than
visitation." She asserts that she did, in fact, complete certain services.
A-5272-17T2
15
As we have explained, the record shows that the Division took steps to
assist M.A.I. to find appropriate housing for herself and the children, but she
refused to participate in the assessment required for such housing. Thus, the
record does not support M.A.I.'s argument that the Division failed to provide her
with adequate assistance in securing housing.
There also is no merit to M.A.I.'s contention that the court "found" she
"failed to meaningfully participate in any services other than visitation." The
record shows that M.A.I. did not complete services during the protective
services litigation, despite referrals to substance abuse evaluation, domestic
violence counseling, individual therapy, parenting classes, and anger
management.
The trial court recognized, however, that M.A.I. had completed certain
services during the guardianship proceedings, but as Dr. Winston testified,
M.A.I. was not able to place what she learned into practice. She also required
additional services. Thus, the record supports the judge's finding that M.A.I.
did not "meaningfully participate in any services other than visitation."
We therefore conclude there is sufficient credible evidence in the record
to support the court's finding that the Division made "reasonable efforts" to help
A-5272-17T2
16
M.A.I. address the circumstances that led to the removal of the children from
her care.
C. Prong Four.
M.A.I. argues that the trial court "placed undue weight on Dr. Winston's
opinions about [her] perceived inability to parent her own children." She further
argues that Dr. Winston's opinions on her ability to parent were net opinions that
the trial court should not have considered. We disagree.
Here, Dr. Winston found the children had an emotional attachment to
M.A.I., but it was not a strong and secure attachment. The doctor opined that
the children looked to their resource parents as their psychological parents . Dr.
Winston also found there would be minimal harm to J.B. and M.B. if M.A.I.'s
parental rights are terminated because they were young and their resource
parents could mitigate any harm.
Dr. Winston further found that while there may be some harm to M.I. and
M.T. if M.A.I.'s parental rights are terminated, their resource parent could
mitigate any such harm. As noted, Dr. Winston pointed out that M.A.I. had
completed certain services during the guardianship proceedings, but she could
not put the skills she learned into practice. Dr. Winston recommended additional
services.
A-5272-17T2
17
We reject M.A.I.'s contention that Dr. Winston's opinions are net
opinions. The record shows that the doctor based her findings on her
observations of M.A.I. with the children during the bonding evaluations, and on
M.A.I.'s psychological evaluation. Because the doctor's opinions had sufficient
factual support, they are not net opinions. See Pomerantz Paper v. New
Community Corp., 207 N.J. 344, 372 (2011) (noting that net opinion rule
requires that an expert opinion be based on "factual evidence").
We are convinced there is sufficient credible evidence in the record to
support the trial court's finding that terminating M.A.I.'s parental rights would
not do more harm than good. Dr. Winston testified that M.A.I. was not capable
of parenting the children and would not be able to do so in the foreseeable future.
The doctor noted that the children had been in resource homes for years
and they required permanency. The doctor opined that termination of M.A.I.'s
parental rights would not do more harm than good. The trial court found
Dr. Winston's testimony to be credible.
Accordingly, the record supports the trial court's finding that the Division
established prong four with clear and convincing evidence.
A-5272-17T2
18
D. Constitutional Right to Parent.
For the first time on appeal, M.A.I. argues that the trial judge ignored her
constitutional right to parent her children. She contends the judge did not give
her any credit for successfully completing services, and the judge failed to
recognize her presumptive right to parent her children. She further argues that
the judge "merely rubber-stamped [the Division]'s determination to pursue
adoption in lieu of reunification."
"The United States and New Jersey Constitutions protect parents' rights to
maintain relationships with their children." Div. of Youth & Family Servs. v.
R.G., 217 N.J. 527, 553 (2014) (citing K.H.O., 161 N.J. at 346). However, the
State retains parens patriae responsibility and thus "may terminate parental
rights if the child is at risk of serious physical or emotional harm or when
necessary to protect the child's best interests." Id. at 553-54 (citing N.J. Div. of
Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986)). As our Supreme
Court has recognized, "[t]he best-interests-of-the-child standard codified at
N.J.S.A. 30:4C-15.1(a) 'aims to achieve the appropriate balance between
parental rights and the State's parens patriae responsibility.'" Id. at 554 (quoting
N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).
A-5272-17T2
19
Here, the record shows that the trial court recognized M.A.I.'s
fundamental right to parent her children. The court applied the best interests
test and required the Division to prove each prong of the test by clear and
convincing evidence. As we have determined, the record supports the court's
determination that the Division met its burden and established all four prongs of
the test.
We therefore conclude that the trial court did not err by terminating
M.A.I.'s parental rights to her children.
IV.
We turn to J.H.'s appeal. He argues that the Division failed to establish
the four prongs of the best interests test.
A. Prong One.
J.H. contends the Division failed to establish prong one because there was
no evidence he physically or sexually abused M.I. or caused her "serious"
emotional injury. He contends he could not harm M.I. because he never had
custody or control of the child, or any contact with her.
J.H. further argues that the trial court erred by finding his absence from
M.I.'s life harmed her because there was "no convincing evidence" the child
knew he was her father. He claims he did not know he was M.I.'s father until
A-5272-17T2
20
he was served with the guardianship complaint and his parentage was confirmed
in the paternity test.
Here, the trial court found that J.H. has harmed and will continue to harm
M.I. in the future. The court noted that J.H. never parented M.I., did not plan
for her care, and refused to participate in the litigation until his paternity was
established. The court found that J.H. harmed M.I. because he did not provide
the child with "the nurture, care or support that the law requires."
We are convinced there is sufficient credible evidence in the record to
support the court's findings. It is well established that "the attention and concern
of a caring family is 'the most precious of all resources.'" DMH, 161 N.J. at 379
(quoting A.W., 103 N.J. at 613). Furthermore, "[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." Ibid. (citing K.H.O.,
161 N.J. at 352-54).
Here, J.H. was informed during the protective services litigation that he
may be M.I.'s father. As noted, during those proceedings, the court repeatedly
ordered J.H. to participate in the paternity test, but he refused to comply. Thus,
J.H. actively avoided his parental responsibilities to M.I., which constitutes a
A-5272-17T2
21
harm that is sufficient to satisfy the first prong. See DMH, 161 N.J. at 379
(citing K.H.O., 161 N.J. at 352-54).
Furthermore, after he was served in the guardianship litigation and the
paternity test confirmed he was M.I.'s father, J.H. offered no plan for the child,
stating that he was focused on his criminal case. He had one visit with M.I.
during the guardianship trial, and during that visit, it appeared that M.I. was
confused when told J.H. was her father. In May 2018, J.H. was sentenced to
thirty-five months in federal prison. While incarcerated, he was not able to
provide M.I. with a safe and stable home.
Thus, the record supports the court's finding that J.H. failed to provide the
child with "nurture, care or support," thereby harming the child. We conclude
there is sufficient credible evidence in the record to support the Family Part
judge's conclusion that the Division established prong one with clear and
convincing evidence.
B. Prong Two.
On appeal, J.H. argues the trial court erred by finding the Division
established prong two because he was not aware that M.I. was his child until he
was served with the guardianship complaint. He contends he did not have an
A-5272-17T2
22
adequate amount of time to plan for the child's care. He further argues that his
one visit with M.I. demonstrates he has "a substantial capacity to parent."
J.H. further argues that the trial court erred by relying on his incarceration
as a basis for its findings on prong two. He contends he was not sentenced to a
lengthy term of incarceration, he was convicted for non-violent offenses, and
the federal district judge recommended he serve his sentence locally. He
therefore argues that he was in a position to foster "a developing relationship"
with M.I. through visits in the time remaining on his criminal sentence. He
contends he could build on that relationship when he is released.
We reject J.H.'s contention that the trial court erred by relying on his
incarceration as a basis for its finding. "A parent's lengthy incarceration is a
material factor that bears on whether parental rights should be terminated."
R.G., 217 N.J. at 555 (quoting In re Adoption of Children by L.A.S., 134 N.J.
127, 143 (1993)). Incarceration alone is not a sufficient basis for termination of
parental rights. Id. at 556 (citing L.A.S., 134 N.J. at 137-38).
The court may, however, consider the effects a parent's incarceration will
have on the child. Id. at 555-56 (quoting L.A.S., 134 N.J. at 143-44). These
include: the parent's relationship with the child before the parent was
incarcerated, the efforts of the incarcerated parent to remain in contact with the
A-5272-17T2
23
child, the potential for visitation, and the psychological and emotional effect
incarceration has on the child. L.A.S., 134 N.J. at 139.
Here, the trial court properly considered J.H.'s incarceration in its findings
on prong two. As we have explained, J.H. has had no relationship with the child
since she was born. He met with the child once while he was in jail. In addition,
J.H. was sentenced to a thirty-five-month prison term, during which he could
not provide the child with a safe and stable home. While J.H. asserts that he
could develop a relationship with the child through visits while he is
incarcerated and after he is released, the record provides no support for that
assertion.
We conclude that the record supports the trial court's finding that the
Division established prong two with clear and convincing evidence.
C. Prong Three.
On appeal, J.H. argues the trial court ignored the Division's "egregious
negligence" in failing to locate him, serve him with the complaint in the
guardianship case, and meet with him and provide him services. He contends
the Division's failure to locate him deprived him of the opportunity to participate
in the case and from having a parental relationship with M.I. He also contends
A-5272-17T2
24
that after the Division located him, it failed to provide him with adequate
services.
We are convinced, however, that the Division made reasonable efforts to
locate J.H. The Division conducted a search for J.H. before it filed its
guardianship complaint. It located him in the county jail, and served him with
the complaint. As noted, he refused a psychological evaluation, and told the
caseworker he was focused on his criminal case and had no plan for the child.
J.H.'s failure to foster a relationship with the child during the protect ive
services litigation was due to his own refusal to participate in the paternity test
and confirm his parentage. Moreover, the record supports the trial court's
finding that the Division provided J.H. reasonable services. The court noted that
the Division had properly focused its efforts on M.A.I., who was the custodial
parent when the children were removed.
The court found that J.H. refused to engage in services offered by the
Division and refused at times to appear in court. The court concluded that J.H.
could not "now claim to have been ignored by the Division." The record
supports the court's findings.
J.H. also argues that the trial court violated his Fifth Amendment right
against self-incrimination "by drawing a negative inference from his refusal to
A-5272-17T2
25
submit to the psychological examination demanded by [the Division] while he
was facing criminal charges." We disagree.
There is nothing in the record to show that J.H. invoked his Fifth
Amendment right when he refused to participate in a psychological evaluation.
Furthermore, J.H.'s criminal proceedings were wholly unrelated to the
guardianship complaint.
In addition, J.H. pled guilty to the federal charges in January 2018, which
was months before he was asked to participate in the psychological exam. He
has not explained how he would incriminate himself if he participated in the
psychological evaluation. Thus, the trial court did not err by considering J.H.'s
refusal to participate in the examination in reaching its decision on prong three.
D. Prong Four.
The trial court found that terminating J.H.'s parental rights to M.I. would
not do more harm than good to M.I. The court noted that J.H. had no relationship
with M.I., and he never parented her. The court stated that, "Termination of his
parental rights cannot do more harm than good in the absence of a parent -child
relationship."
On appeal, J.H. argues that his visit with M.I. showed he could potentially
form a close parent-child relationship with her. He asserts termination of his
A-5272-17T2
26
parental rights poses a great harm to the child, which he claims outweighs any
benefits that could result from the termination of parental rights. Again, we
disagree.
There is sufficient credible evidence to support the trial court's findings
on prong four. J.H.'s assertion that he could potentially form a close relationship
with M.I. is meritless. It is undisputed that J.H. did not have a relationship with
M.I. He did not request visitation with the child before his paternity was
established, and the record does not support the conclusion that J.H. could
develop such a relationship while he is incarcerated. See L.A.S., 134 N.J. at 139(noting that "once a parent is imprisoned, a relationship with one's children that
was nonexistent prior to incarceration will not likely be fostered").
Therefore, the record supports the trial court's determination that
termination of J.H.'s parental rights will not do more harm than good. Although
Dr. Winston did not evaluate J.H., Dr. Winston opined that M.I.'s resource
parent was M.I.'s psychological parent and the child had "a strong and secure
emotional attachment to" her. Dr. Winston also stated that the resource parent
would be able to provide M.I. with the permanency, stability, security, and trust
that she needed. In addition, in her report, Dr. Winston opined that M.I. would
A-5272-17T2
27
suffer "serious and enduring emotional harm" if removed from her resource
home.
Thus, the record provides no support for J.H.'s assertion that termination
of his parental rights will cause great harm to the child. Rather, the record
clearly and convincingly established that termination of J.H.'s parental righ ts to
M.I. would not do more harm than good.
We therefore conclude that the trial court did not err by terminating J.H.'s
parental rights to M.I.
Affirmed.
A-5272-17T2
28