DCPP VS. S.R AND R.D., IN THE MATTER OF THE GUARDIANSHIP OF A.D. (FG-08-0037-19, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-2329-19
A-3679-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
S.R. and R.D.,
Defendants-Appellants.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF A.D.,
a minor.
_________________________
Argued March 16, 2021 – Decided April 5, 2021
Before Judges Haas, Mawla, and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FG-08-0037-19.
Stephania Saienni-Albert, Designated Counsel, argued
the cause for appellant S.R. (Joseph E. Krakora, Public
Defender, attorney; Robyn A. Veasey, Deputy Public
Defender, of counsel; Stephania Saienni-Albert, on the
briefs).
Anne E. Gowen, Designated Counsel, argued the cause
for appellant R.D. (Joseph E. Krakora, Public Defender,
attorney; Anne E. Gowen, on the briefs).
Amy Melissa Young, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Amy Melissa Young, on
the brief).
Noel C. Devlin, Assistant Deputy Public Defender,
argued the cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Meredith Alexis
Pollock, Deputy Public Defender, of counsel; Noel C.
Devlin, on the brief).
PER CURIAM
In these consolidated appeals, S.R. and R.D.,1 parents of A.D., challenge
the Family Part's January 24, 2020 orders terminating their parental rights. The
Law Guardian and the Division of Child Protection and Permanency (Division)
urge that we uphold the trial court's decision. We affirm.
I.
We glean the following facts from the extensive record in the case. A.D.
was removed by the Division shortly after his birth in October 2017 upon the
1
We use the parties' initials to protect their identities. R. 1:38-3(d)(12).
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Division receiving a report regarding S.R.'s inability to supervise him. S.R. has
cognitive impairments and suffers from other mental health issues. Her
compliance with Division-referred services during the course of this litigation
has been sporadic and she has exhibited an inability to retain parenting skills
information. S.R. also failed to maintain gainful employment and stable housing
and has resided in homeless shelters, motels, and the homes of friends and
relatives.
A.D.'s biological father, R.D., refused to take custody of him prior to his
removal. Approximately three months later, he was arrested for aggravated
assault and possession of a weapon for unlawful purposes with respect to an
incident involving S.R. The Division was informed that R.D. allegedly "caused
bodily harm to [S.R.] by slashing her arm with a silver knife during a d omestic
violence dispute." After a jury trial, R.D. was found guilty of negligently
causing bodily injury to S.R. with a weapon, contrary to N.J.S.A. 2C:12-1(a)(2),
and was released from jail after a seventeen-month period of incarceration.
After his release, R.D. failed to complete a Division referred batterer's
intervention program and a parenting skills class. R.D. also suffers from several
mental health issues including a schizophrenic disorder and cognitive deficits.
In August 2019, he was involuntarily committed to a psychiatric facility because
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he was experiencing auditory hallucinations where a voice was telling him to
kill people.
Throughout the litigation A.D. has primarily resided in the care of his
resource parents, who wish to adopt him. For approximately two months,
however, A.D. was placed in his paternal aunt's care. That placement was
unsuccessful, and A.D. was eventually placed back in the care of the same
resource parents.
The Division presented testimony at trial from caseworker Victoria
Burbage and expert psychologist, Dr. Alan J. Lee. The trial judge found both
witnesses to be credible.
Dr. Lee performed a psychological evaluation of S.R. and diagnosed her
with depressive, anxiety, impulse control, and personality disorders with
borderline, narcissistic, and dependent traits, and a likelihood of neurological
impairment. Dr. Lee also performed a psychological evaluation of R.D. and
diagnosed him with a form of schizophrenia, a personality disorder with
antisocial, narcissistic, schizotypal, and paranoid traits, and a neurological
impairment similar to that inflicting S.R.
Dr. Lee opined that the prognosis for significant and lasting changes to
S.R.'s and R.D.'s parenting deficits was poor. He found that S.R. and R.D. were
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unlikely to develop the skills necessary to serve as independent caretakers for
A.D. within the foreseeable future. Dr. Lee also noted that neither parent would
benefit from additional services. Specifically, Dr. Lee found that it was unlikely
S.R. "would appreciably change even if additional services were provided" and
that R.D. would not "significantly change in the foreseeable future."
Dr. Lee also conducted a bonding evaluation which revealed that A.D. had
formed a "significant and positive" psychological attachment and bond with
both his resource parents. By contrast, Dr. Lee noted that with respect to S.R.,
A.D. had "an ambivalent and insecure attachment and relationship with [her]"
and that there "is a low risk of [A.D.] suffering severe and enduring harm if his
relationship with [S.R.] is permanently ended." Dr. Lee made the same
conclusion regarding A.D.'s attachment with R.D.
On January 24, 2020, after considering the evidence, Judge Mary K. White
concluded that the Division proved all four prongs of the statutory criteria for
termination under N.J.S.A. 30:4C-15.1(a). In particular, the judge found the
Division had established by clear and convincing evidence that: A.D.'s safety,
health, and development have been and will continue to be endangered; S.R. and
R.D. are unable or unwilling to eliminate that harm in the future and that a delay
in A.D.'s permanent placement will add to that harm; the Division made
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reasonable efforts to provide services to S.R. and R.D.; potential alternatives to
termination have been sufficiently considered; and termination of parental rights
will not cause A.D. more harm than good. Judge White issued a supplemental
decision on February 6, 2020, and on March 2, 2020, she issued an addendum
which included the legal authority for her decision and specific findings
regarding S.R.'s "lack of progress regarding her capacity to parent [A.D.]."
On appeal, S.R. and R.D. assert that the Division failed to establish the
four prongs of N.J.S.A. 30:4C-15.1 by clear and convincing evidence. R.D.
additionally contends that Judge White erred in shifting the burden of proof to
him to prove that he did not have chronic schizophrenia and that he could
adequately parent A.D. He also maintains it was improper for the Division to
rely on his period of incarceration as grounds for termination. We disagree with
both S.R.'s and R.D.'s arguments and affirm substantially for the sound reasons
detailed in Judge White's January 24 and February 6, 2020 oral opinions, and
March 2, 2020 written addendum.
II.
In reviewing a court's decision to terminate an individual's parental rights,
"[t]he scope of our review of [the] . . . court's factual findings is limited." N.J.
Div. of Youth & Fam. Servs. v. L.J.D., 428 N.J. Super. 451, 476 (App. Div.
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2012). "A Family Part's decision to terminate parental rights will not be
disturbed when there is substantial credible evidence in the record to support the
court's findings," N.J. Div. of Child Prot. & Permanency v. K.T.D., 439 N.J.
Super. 363, 368 (App. Div. 2015), because the court "has 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," N.J. Div.
of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of
Youth & Fam. Servs. v. M.M., 189 N.J. 261, 293 (2007)).
"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." Ibid. (quoting N.J. Div. of Youth
& Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007)). We must also recognize the
expertise of the Family Part, which repeatedly adjudicates cases brought by the
Division under Title 9 and Title 30. See, e.g., N.J. Div. of Youth & Fam. Servs.
v. F. M., 211 N.J. 420, 448 (2012). We review the trial court's legal conclusions
de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995).
A parent's right to maintain a relationship with their child is
constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346
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(1999) (citing Stanley v. Illinois, 405 U.S. 645 (1972)). Courts honor and
recognize this right, imposing strict standards for terminating parental rights.
Id. at 347. A court may terminate parental rights only if the State proves all four
prongs of the "best interests" test. Id. at 347-48, 363. Specifically, before
termination can occur, the State must show by clear and convincing evidence
that:
(1) The child's safety, health, or development has been
or will continue to be endangered by the parental
relationship;
(2) The parent is unwilling or unable to eliminate the
harm facing the child or is unable or unwilling to
provide a safe and stable home for the child and the
delay of permanent placement will add to the harm.
Such harm may include evidence that separating the
child from his resource family parents would cause
serious and enduring emotional or psychological harm
to the child;
(3) The division has made reasonable efforts to provide
services to help the parent correct the circumstances
which led to the child's placement outside the home and
the court has considered alternatives to termination of
parental rights; and
(4) Termination of parental rights will not do more
harm than good.
[N.J.S.A. 30:4C-15.1(a).]
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"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." K.H.O., 161 N.J.
at 348. Moreover, "parental fitness is the key to determining the best interests
of the child. The considerations involved in determinations of parental fitness
are extremely fact sensitive and require particularized evidence that address the
specific circumstances in the given case." Ibid. (citations omitted) (internal
quotation marks omitted).
III.
A. Prong One
With respect to prong one, S.R. argues that Judge White erred in finding
that the Division established that A.D.'s safety, health, or development would
be endangered by his parental relationship with her. Specifically, S.R. maintains
that the record indicates that A.D. did not show any signs of abuse or neglect
and that S.R. had the capacity to care for him.
R.D. contends Judge White made erroneous factual findings regarding his
mental health condition and in concluding those issues precluded him from
safely parenting A.D. We disagree.
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Under the first prong, the 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 & Fam. 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).
The harm may be established by "a delay in establishing a stable and
permanent home." In re Guardianship of DMH, 161 N.J. 365, 383 (1999). "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. Moreover, "prolonged inattention by natural parents that
permits the development of disproportionately stronger ties between a child and
foster parents may lead to a bonding relationship the severing of which would
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cause profound harm—a harm attributable to the natural parents . . . ." In re
Guardianship of J.C., 129 N.J. 1, 18 (1992).
Here, the record clearly supports Judge White's finding on prong one. As
Judge White noted, S.R. had trouble understanding "how to hold a baby's head,
how to feed [with] a bottle, how to just be attuned to this little creature that can't
speak." Essentially, S.R. failed to acquire the necessary parenting skills to care
for A.D.
Further, throughout the litigation, S.R. was unable to establish "a stable
and permanent home." DMH, 161 N.J. at 383. In addition, Dr. Lee concluded
that A.D. had developed a positive bond with the resource parents, and
termination of that relationship would cause "impulse control problems,
disinhibited type behaviors, [and] aggressive behavior."
S.R. maintains that Judge White failed to consider the support of her
mother and sister. The record indicates, however, that the Division initially
ruled out S.R.'s sister because she had an open Division case. Similarly, the
Division had ruled out S.R.'s mother because she had been substantiated for
neglect in 1992 and 1999.
R.D. also had unabated mental health issues which Dr. Lee concluded
prevented him from parenting at the time of his evaluation, or in the foreseeable
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future. At the time of trial, neither parent had been consistently involved in
A.D.'s care for over two years. They failed to consistently visit him depriving
A.D. of essential nurturing necessary to establish a secure and enduring bond.
Their lack of bond with A.D. was replaced by that found between A.D. and his
resource parents. Finally, the severance of A.D.'s bond with his resource
parents, according to Dr. Lee, would cause A.D. significant harm. That harm
alone is sufficient to satisfy prong one. See J.C., 129 N.J. at 18.
B. Prong Two
S.R. next argues that there was "insufficient evidence to support the trial
court's conclusion that [she] was unwilling or unable to eliminate the harm
facing A.D. or to provide a safe and stable home for A.D." R.D. maintains that
Judge White incorrectly concluded that his "mental illness rendered him unable
to parent [A.D.] safely because [he] had been unable to prove" that he did not
have chronic schizophrenia. R.D. also claims that Judge White improperly
shifted the burden of proof by requiring him to establish whether he suffered
from an acute schizophrenic episode or a chronic psychiatric condition. We are
not persuaded by any of these arguments.
"The second prong, in many ways, addresses considerations touched on in
prong one." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 451 (2012).
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The focus remains on parental unfitness. K.H.O., 161 N.J. at 352; DMH, 161
N.J. at 378-79. In considering this prong, the court should determine whether it
is reasonably foreseeable that the parent can cease to inflict harm upon the child.
N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 607 (1986).
Under the second prong, parental unfitness can be demonstrated in several
ways. K.H.O., 161 N.J. at 352. 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. Another
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).
Here, Dr. Lee concluded that A.D. had developed positive bonds with both
resource parents. He further determined that if A.D. were removed from the
resource parents, he would suffer severe and enduring harm. Dr. Lee also noted
that A.D. could suffer from several psychological disorders if separated from
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his resource parents including, impulse control problems, disinhibited type
behaviors, aggressive behaviors, anxiety, and depression.
S.R. also contends that she was "substantially compliant" with her court
ordered services. Although the record confirms that S.R. completed certain
services, she was unable to retain the information provided to her. As Judge
White noted, S.R. was unable to "acquire the ability, the skills, the stability, the
understanding of parenting and child safety and child development to safely care
for her child going forward." Further, S.R. missed a significant number of visits
with A.D.
S.R. further maintains that Judge White should not have relied on her
unstable housing as a basis for her determination. She claims that the judge's
conclusion was improper because it was based on her economic and social
circumstances. We disagree with S.R.'s characterization of the court's factual
findings. Judge White appropriately considered the effect the lack of stable
housing would have on A.D. In this regard, it is well settled that evidence of a
"a delay in establishing a stable and permanent home" is a relevant consideration
when evaluating harm to a child. DMH, 161 N.J. at 383.
Similarly, there was also ample evidence in the record supporting Judge
White's decision that the Division established prong two by clear and convincing
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evidence with respect to R.D. For example, Dr. Lee concluded that in addition
to "some kind of schizophrenia spectrum disorder," R.D. had "chronic
maladaptive personality and character traits that include his heightened level of
anger and resentment and hostility." R.D. was also involuntarily committed
because he had heard voices telling him to kill people.
Further, Dr. Lee determined that R.D. posed a significant risk for criminal
recidivism, mental health symptom relapse, as well as substance abuse relapse.
Burbage also testified that R.D. failed to complete parenting services and a
batterer's intervention program despite his conviction for negligently causing
bodily injury to S.R. with a weapon.
With respect to the proofs regarding R.D.'s psychiatric condition, Judge
White stated that:
The [c]ourt doesn't have proof to rule out that you have
schizophrenia. I don't know that you have it or that it
wasn't some kind of a break . . . . But paranoid
schizophrenia is typically a chronic condition. So, I
find that the Division's position that we had to at least
be able to rule it out, and sir, you were . . . , very
cooperat[ive] with those various evaluations or at least
that's what I'm going to find. You may disagree with
me, but that's what I'm going to find in order to rule it
out.
Judge White further noted:
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[Y]ou and the [c]ourt couldn't get information so as to
rule out whether this was a chronic condition, which is
treatable with medication, but not if a person says I
don't have it—or to just rule it out, because paranoid
schizophrenia is a condition, when it does exist, that
creates an inability to understand actual reality, which
is really important when caring for a toddler, which is
what this child is.
This colloquy from Judge White did not shift the burden onto R.D. to
prove that he did not have chronic schizophrenia. The judge noted that there
was not enough information presented to establish whether he had that condition
or not. Nor did Judge White presume that chronic schizophrenia "categorically
rendered a parent unfit" as R.D. alleges. Rather, she noted that untreated chronic
schizophrenia could be an impediment to caring safely for a small child. After
reviewing the record, we are satisfied that Judge White correctly considered
R.D.'s mental health history and determined that the Division established prong
two by clear and convincing evidence as to each parent.
C. Prong Three
S.R. claims that the record "demonstrates that [the Division] did not prove,
by clear and convincing evidence, that it made reasonable efforts to provide S.R.
with services that would assist her in overcoming the conditions that led to the
removal of her son." Specifically, S.R. maintains that the Division did not
provide services "tailored" to meet her needs. S.R. further argues that the
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Division bears a "heightened burden" for the provision of its services to her
under New Jersey Division of Youth & Family Services v. L.J.D., 428 N.J.
Super. 451 (App. Div. 2012). In addition, S.R. contends that the Division's
actions were not reasonable because it did not conscientiously follow the
recommendations from the therapists who evaluated her.
R.D. argues that the Division failed to establish that it made reasonable
efforts to provide him with services during and after his incarceration . Again,
we are not persuaded by S.R.'s and R.D.'s contentions.
"Reasonable efforts" are defined as:
[A]ttempts 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, 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.
[N.J.S.A. 30:4C-15.1(c).]
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The focus is on the Division's efforts toward "reunification of the parent
with the child and assistance to the parent to correct and overcome those
circumstances that necessitated the placement of the child into [resource parent]
care." K.H.O., 161 N.J. at 354. However, "[t]he diligence of [the Division's]
efforts . . . is not measured by their success," but rather "against the standard of
adequacy in light of all the circumstances." DMH, 161 N.J. at 393.
Here, the Division aided S.R. throughout the litigation. As Judge White
noted, the Division "made every effort it could to help [her] with services." In
this regard, the Division made referrals and arranged for S.R. to participate in
psychiatric, domestic violence, parenting, and substance abuse programs.
Further, despite the Division's extensive efforts, Burbage testified that she was
unaware of any services that S.R. was engaged in at the time of trial. Although
the Division did not provide services in accordance with every recommendation
offered by her therapists, the record supports that its efforts were reasonable as
defined by N.J.S.A. 30:4C-15.1(c).
S.R. relies on L.J.D. for the proposition that the Division bears a
"heightened burden for the provision of its services." In L.J.D., however, the
court noted that this heightened burden applies in situations where defendant-
parents are also child-clients of the Division. L.J.D., 428 N.J. Super at 489.
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Although S.R. was involved with the Division as a child, she was no longer a
child-client during the period when she was caring for A.D. Even were we to
agree that the Division owed S.R. a heightened duty, we are satisfied the
Division met that standard. The services provided to S.R. were extensive and
relevant to her parenting deficits.
As to R.D., while he was incarcerated, the Division attempted to contact
him on multiple occasions. Indeed, contrary to his claims, the Division met with
R.D. at Salem County Correctional Facility on April 11, 2018. While there, the
Division discussed "the progress of [his] case, [the] case plan[,] and address[ed]
any existing barriers." Further, during this meeting, R.D. declined visitation
with A.D. In addition, the Division had scheduled a visit for May 24, 2019,
however, when a caseworker called to confirm the visitation, she was informed
that R.D. had been released.
When R.D. was released, Burbage testified that R.D. was scheduled for a
psychological and bonding evaluation, a batterer's intervention program,
random urine screenings, and a substance abuse evaluation. She stated that
although it was determined that R.D. did not have a substance abuse problem,
he failed to complete the batterer's intervention program. She also noted that
R.D. completed an intensive psychiatric outpatient program but by the time of
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trial he was not engaged in individual therapy. She also testified that she
referred R.D. for parenting services but he did not comply.
Moreover, R.D. was scheduled for supervised visitations within weeks of
his release. In addition, R.D. never provided the Division with pay stubs so that
they could assist him with making a security deposit on an apartment. Based on
the record, Judge White correctly found that the Division made reasonable
efforts to provide R.D. with relevant services upon his release from jail.
R.D. also claims that it was unreasonable for the Division to require
supervised visits with A.D. Specifically, R.D. maintains that unsupervised visits
are the default arrangement unless the Court or the Division "finds a need for
supervision." N.J.A.C. 3A:15-1.10(b). We are satisfied that the record
supported the need for supervised visitation. Indeed, at the time the court
entered the October 17, 2017 removal order, it was provided with the Division's
verified complaint which attested to R.D.'s lack of stable housing and purported
acts of domestic violence against S.R. Specifically, the court was informed of
an incident where R.D. allegedly pushed S.R. "into the bathroom of [a] motel
room" and choked her.
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D. Prong Four
S.R. asserts that Judge White erred by relying on the expert opinion of Dr.
Lee in her determination that the Division established prong four. As best we
can discern, S.R. argues that the court should not have relied upon Dr. Lee's
single bonding evaluation between her and A.D. R.D. maintains that Dr. Lee
failed to consider all relevant facts regarding his separation from A.D., and
events subsequent to his evaluation.
Under prong four, the ultimate question is "whether, after considering and
balancing the two relationships, the child will suffer a greater harm from the
termination of ties with [his] natural parents than from the permanent disruption
of [his] relationship with [his resource] parents." K.H.O., 161 N.J. at 355.
"[T]he child's need for permanency and stability emerges as a central factor."
Id. at 357; see also F.M., 211 N.J. at 453-54 (holding termination of the
defendant's parental rights would not do more harm than good where the child's
attachment to the resource parent was stronger than the attachment to the legal
parent); N.J. Div. of Child Prot. & Permanency v. P.D., 452 N.J. Super. 98, 122-
23 (App. Div. 2017) (finding the fourth prong satisfied upon expert testimony
that the severing of the child's relationship with the resource parent would cause
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"severe and enduring harm," while the child had "no bond" with the legal
parent).
Dr. Lee concluded that A.D. had "an ambivalent and insecure attachment
with [S.R.]" and that this was "not a significant and positive bond." He further
noted that "there is a low risk of [A.D.] suffering severe and enduring harm if
his relationship with [S.R.] is permanently ended." Moreover, Dr. Lee testified
that A.D. did not "show any kind of overt joy, happiness, or smiling when he
saw [S.R.]" and "showed rather limited eye contact with [her]." Further, as
noted, Dr. Lee concluded that A.D. would not suffer severe and enduring harm
if his relationship was terminated with S.R. In contrast, however, Dr. Lee found
that A.D. would suffer significant harm if his relationship with the resource
parents was terminated.
Similarly, with respect to R.D., Dr. Lee noted that A.D. had an
"ambivalent and insecure attachment" with him and that this was "not a
significant and positive bond." Accordingly, he concluded that there was "a low
risk of [A.D.] suffering severe and enduring harm if his relationship with [R.D.]
[was] ended permanently." Dr. Lee also stated that A.D. did not show "any kind
of overt joy or happiness" when R.D. picked him up and that "there was no
conversation or dialogue of any sort" between the two. Thus, we are satisfied
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that Judge White properly relied upon Dr. Lee's testimony in finding that the
Division established prong four by clear and convincing evidence. F.M., 211
N.J. at 453-54.
IV.
Finally, R.D. argues that his substantive due process rights were violated
because the State effectively made him unavailable to A.D. by incarcerating him
for seventeen months during this litigation. Specifically, R.D. argues Judge
White "explicitly penalized [him] for being unavailable during his
incarceration" and that his imprisonment made it "virtually impossible for [R.D.]
to prevail on other points" and to bond with his son. We disagree.
Our Supreme Court has made it very clear that a parent's incarceration
alone is not a sufficient legal basis for termination. See, e.g., In re Adoption of
Children by L.A.S., 134 N.J. 127, 143 (1993); N.J. Div. of Youth & Fam. Servs.
v. R.G., 217 N.J. 527, 556 (2014) ("We therefore reiterate 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."). There is no doubt that "incarceration is a
relevant factor in resolving termination of parental rights cases." R.G., 217 N.J.
at 555. Even so, "it is by no means settled or obvious that incarceration is so
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inimical to [the parental] relationship as to justify its termination as a matter of
law." Ibid. (quoting L.A.S., 134 N.J. at 137).
We are satisfied that the court did not base its termination decision solely
on R.D.'s incarceration or otherwise violate his due process rights. As Dr. Lee
noted, R.D.'s "mental health issues, his risk[s] for impulse control problems, . . .
criminal recidivism, . . . substance abuse, . . . aggressive behaviors, his lack of
knowledge of parenting and child rearing, his limited insight and awareness . . .
have an adverse impact on his ability to consistently and properly carry out a
minimal level of parenting." Prior to R.D.'s incarceration, when the Division
was trying to arrange a supervisor for S.R., instead of agreeing to do so, he
simply stated that S.R. "knows what she should do as a mother and if she does
not then she has to face the consequences." Further, when R.D. was
incarcerated, he initially declined visitation with A.D.
We also reject R.D.'s argument that the court relied too heavily on the
circumstances that led to his incarceration stating that "a jury determined that
[he] was guilty at most of negligence." In fact, R.D. was convicted of
negligently causing bodily injury to the mother of his child contrary to N.J.S.A.
2C:12-1(a)(2), a significant offense. We are satisfied that the court properly
evaluated the circumstances underlying his incarceration and correctly applied
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those facts to the governing law and did not otherwise violate R.D.'s substantive
or procedural due process rights.
To the extent we have not addressed any other arguments raised by S.R.
and R.D., it is because we have concluded they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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