DCPP VS. R.J. IN THE MATTER OF THE GUARDIANSHIP OF H.H.H.(FG-16-0088-16, PASSAIC COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3202-16T4
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
R.J.,
Defendant-Appellant.
___________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF H.H.H.,
Minor.
___________________________________
Argued October 31, 2017 – Decided November 28, 2017
Before Judges Yannotti, Carroll, and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic
County, Docket No. FG-16-0088-16.
Bruce P. Lee, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Mr. Lee, on the briefs).
Viviane Sullivan, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Jason
Rockwell, Assistant Attorney General, of
counsel; Ms. Sullivan, on the brief).
Christopher A. Huling, Designated Counsel,
argued the cause for minor (Joseph E. Krakora,
Public Defender, Law Guardian, attorney; Mr.
Huling, on the brief).
PER CURIAM
Defendant R.J. ("Richard")1 appeals from a March 15, 2017
judgment terminating his parental rights to H.H.H. ("Harold").
For the reasons that follow, we affirm.
I.
The following facts are taken from the record. The New Jersey
Division of Child Protection and Permanency (Division) has been
involved in this matter since Harold's mother, T.H. ("Tiffany"),
was nine months pregnant.
Tiffany struggled with substance abuse problems.
Specifically, she used cocaine, benzodiazepines, and heroin during
her pregnancy. She had participated in a methadone treatment drug
program since July 2011, but had limited success.
Tiffany gave birth to Harold in February 2012. However,
because she tested positive for opiates, cocaine, and
benzodiazepines eight days earlier, a hospital worker made a
1
We use pseudonyms or initials to protect the child and the
parties' privacy.
2 A-3202-16T4
referral to the Division. When the Division case worker met with
Tiffany in the hospital, the case worker inquired about the baby's
father. Tiffany stated she was unsure who the father was, but
thought it could be either "Sugar" or "Thunder." Tiffany did not
know their real names or addresses.
Harold was not discharged from the hospital because he was
experiencing withdrawal symptoms. Tiffany was discharged and
entered into another counseling and substance abuse program. As
a result, the court granted the Division custody of Harold.
Tiffany and Harold were reunited because she was complying
with treatment, but the reunification was short-lived. A second
removal occurred on April 15, 2013, after Tiffany tested positive
for opiates. At the time of the second removal, Richard had been
living with Tiffany. However, Tiffany maintained she did not know
the identity of Harold's biological father, and that he was not
involved in the child's life.
One year later, Tiffany continued to struggle with substance
abuse. Therefore, the Division continued to inquire about the
child's father. Tiffany insisted she did not know who the father
was. When asked specifically if Richard was the father, Tiffany
stated he was not, but that Richard had "been a major part of
[Harold's] life [and] fits the role of his father."
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A third removal occurred on April 29, 2014, when Tiffany was
incarcerated for prostitution and drug possession. Harold was
placed in a resource home. For the first time, Tiffany stated
Richard was Harold's biological father.
On May 16, 2014, Harold was moved to K.M.'s home. K.M. was
a family friend who knew Harold from his daycare center. The
Division also contacted the paternal grandmother as a potential
resource placement for Harold, but she informed the Division she
was unable to care for him due to her and her husband's health.
The paternal grandmother stated she had another son who may be
interested, but he and his wife were busy.
Tiffany was released from jail on May 20, 2014, but was
arrested again on June 3, 2014. Harold remained in K.M.'s care
until December 1, 2014, when the court granted Tiffany physical
custody on the condition she remain at and complete the mommy-and-
me program and attend a psychological evaluation. Later that
month, Tiffany indicated she wanted to leave the program to pursue
a culinary arts program. In the following months, Tiffany
experienced numerous relapses, and Harold was once again removed
from her care on October 23, 2015, and again placed with K.M.
After Tiffany informed the Division Richard was the father,
the Division attempted to locate him. The paternal grandmother
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was unaware of his whereabouts, but stated he was abusing drugs.
Tiffany corroborated this claim, stating Richard abused heroin.
On February 17, 2015, the caseworker located Richard and
reported that he wished to attend the next scheduled court
proceeding. However, on April 14, 2015, a caseworker visited
Richard who would not open his front door completely, and indicated
he would not attend the next court date. The caseworker served
Richard with the complaint and court ordered paternity test.
Richard indicated he would comply with the test and also
acknowledged paternity.
A paternity test was scheduled for July 6, 2015, but Richard
failed to appear. Another test was rescheduled for August 3,
2015, but again Richard failed to appear despite a call from a
caseworker reminding him of the appointment. The paternity test
was rescheduled again for November 13, 2015; however, the Division
learned Richard was incarcerated on November 12, 2015. As a
result, the caseworker visited Richard in jail on November 24,
2015, and provided him with the most recent court order. Richard
agreed to comply with the paternity testing, which occurred on
December 1, 2015, and confirmed he was Harold's father.
Richard was released on December 15, 2015. That same day the
paternal grandmother reported finding Richard lying on the floor
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of her home gurgling and under the influence of a substance. She
called an ambulance, but Richard refused medical attention.
On January 4, 2016, the Division assessed the paternal
grandmother's home as a possible placement for Harold since Richard
had been living there at the time. However, the Division ruled
out the paternal grandmother as a potential placement for Harold
because her home did not meet licensing standards, and she
indicated she needed Richard's help to care for her husband, who
was ill and had limited mobility. After the paternal grandmother's
husband passed away, she sought to be reevaluated as a potential
placement, but when the caseworker visited her she withdrew her
request.
The Division also investigated M.G., the mother of Richard's
other two children, as a placement option. However, a
psychological evaluation of M.G. concluded she was not a suitable
caregiver for Harold, and that he should not be removed from his
resource parent.
During this time, Richard had been offered visitation with
Harold, but had not responded or requested any visits. When the
Division inquired why Richard did not exercise visitation, he
claimed he did not have a driver's license. The Division offered
Richard bus passes and encouraged him to visit Harold, but Richard
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attended only two visits, one each in January 2016 and February
2016.
In addition to exploring relative placements and offering
visitation, the Division referred Richard to participate in a
substance abuse assessment. Richard was notified of the
evaluation, which was scheduled for January 28, 2016, but he failed
to attend. The Division scheduled seven more substance abuse
assessments for Richard between February and August 2016 — all of
which he failed to attend.
In addition, Richard was scheduled for a psychological
evaluation with Robert Miller, Ph.D. Richard received written
notice of the evaluation, but failed to attend.
On August 22, 2016, Richard provided a urine sample and tested
positive for methadone, opiates, cocaine, and benzodiazepines.
Richard was tested seven more times between September 6, 2016 and
October 17, 2016, and tested positive for opiates and cocaine on
six of the dates and benzodiazepines on one date. Richard tested
positive for opiates again on three separate occasions in October
2016 and November 2016, respectively. In December 2016, Richard
tested positive for opiates, cocaine, and benzodiazepines.
Dr. Robert Kanen conducted a psychological evaluation of
Richard on behalf of the Division, which included a clinical
interview, and administering the Wechsler Adult Intelligence Scale
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(WAIS-V) and the Millon Clinical Multiaxial Inventory-III (MCMI-
III). Dr. Kanen found Richard had borderline intelligence, which
would pose a challenge in his daily life and likely make difficult
his ability to support himself and Harold. In addition, Dr. Kanen
noted Richard had longstanding personality problems, including
self-centeredness, indifference to the needs of others, and
deficits in coping with the demands of daily life. Dr. Kanen
concluded, "[Richard] is not likely to be able to provide [Harold]
with a permanent, safe, and secure home now or in the foreseeable
future. He is likely to expect others to take over his parental
responsibilities" and "[h]is child . . . does not know him as a
predictable, consistent and reliable caretaker." Therefore, Dr.
Kanen did not recommend Harold be placed in Richard's care.
The bonding evaluation Dr. Kanen performed between Richard
and Harold demonstrated there was no bond. Dr. Kanen concluded
Harold would not likely suffer serious or enduring harm if
permanently separated from Richard.
The guardianship trial occurred on January 31, and February
1, 2017.2 The only testimony presented was on behalf of the
Division, which offered testimony from Dr. Kanen, Jennifer Zajonc,
a Division caseworker, and Jorge Flaconi, a Division adoption
2
Tiffany provided an identified surrender of parental rights
regarding Harold to K.M. on December 2, 2016.
8 A-3202-16T4
caseworker. The trial judge issued a written opinion on March 15,
2017, terminating Richard's parental rights.
The judge found the Division had proven all four prongs of
the best interests test by clear and convincing evidence. As to
the first prong, the judge found Richard was not meaningfully
involved in Harold's life, failed to maintain stable, independent
housing, and as an active substance abuser, continued to place
Harold at risk of harm. As to the second prong, the judge concluded
Richard was unwilling to remediate the harm. He found Richard
intentionally delayed his paternity testing, and noted his lack
of attendance for drug screenings and substance abuse assessments,
as well as his inconsistent exercise of visitation.
Regarding the third prong, the judge found Richard had failed
to comply with the Division's attempts to provide substance abuse
treatment and services, and recounted the court's consideration
of alternatives to termination concluding adoption is both
feasible and likely, and would provide Harold with the greatest
degree of permanency. As to the fourth prong, the judge found
Richard would likely be unable to provide Harold with a permanent,
safe and secure home for the foreseeable future, and Harold would
not suffer serious and enduring harm if permanently separated from
Richard. This appeal followed.
9 A-3202-16T4
II.
The scope of our review on 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)). We will uphold a trial judge's
factfindings 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) (citing N.J. Div. of
Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010); Balsamides
v. Protameen Chems., 160 N.J. 352, 372 (1999)).
"We accord deference to factfindings of the family court
because it has the superior ability to gauge the credibility of
the witnesses who testify before it and because it possesses
special expertise in matters related to the family." N.J. Div.
of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2014) (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
10 A-3202-16T4
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.
III.
Richard argues the trial judge erred by denying him the
opportunity to hire a private attorney. On the first day of trial,
Richard appeared with assigned counsel and informed the trial
judge he wished to seek private counsel. He claimed his assigned
counsel was unable to represent him effectively.
The trial judge inquired if Richard was able to afford a
private attorney, and Richard replied his brother would pay for
the attorney. The judge then inquired whether Richard had spoken
to an attorney and Richard conceded he had not. The judge denied
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Richard's request reasoning that a lengthy delay had already
occurred "with respect to the resolution of permanency and
stability for the child," which outweighed Richard's request to
begin a search for private counsel.
On appeal, Richard argues the trial judge's decision to deny
an adjournment was an abuse of discretion under State v. Kates,
426 N.J. Super. 32, 45 (App. Div. 2012), because the court failed
to undertake "an intensely fact-sensitive inquiry." Richard
argues the judge erred by failing to inquire whether his current
counsel was "prepared to provide effective representation, and if
she was, what her expectations were for how much time a new
attorney would need to prepare."
We review a trial judge's denial of an adjournment request
under an abuse of discretion standard. State v. Ferguson, 198
N.J. Super. 395, 402 (App. Div. 1985). A reversal is not warranted
unless we determine: 1) whether the judicial ruling was "clearly
unreasonable in the light of the accompanying and surrounding
circumstances," and 2) whether a defendant was prejudiced by the
denied adjournment request. State v. Miller, 216 N.J. 40, 66-67
(2013). Prejudice is established when a "defendant suffer[s]
manifest wrong or injury." Id. at 67. When a litigant seeks an
adjournment to retain new counsel, we have stated:
12 A-3202-16T4
Some of the factors to be considered in the
balance include: the length of the requested
delay; whether other continuances have been
requested and granted; the balanced
convenience or inconvenience to the litigants,
witnesses, counsel, and the court; whether the
requested delay is for legitimate reasons, or
whether it is dilatory, purposeful, or
contrived; whether the defendant contributed
to the circumstance which gives rise to the
request for a continuance; whether the
defendant has other competent counsel prepared
to try the case, including the consideration
of whether the counsel was retained as lead
or associate counsel; whether denying the
continuance will result in identifiable
prejudice to defendant's case, and if so,
whether this prejudice is of a material or
substantial nature; the complexity of the
case; and other relevant factors which may
appear in the context of any particular case.
[State v. Kates, 426 N.J. Super. 32, 46 (App.
Div. 2012) (quoting State v. Hayes, 205 N.J.
522, 538 (2011))].
Here, there is no evidence the trial judge abused his
discretion by denying Richard's request to delay trial to pursue
private counsel. First, Richard provided no legitimate reasons
for needing new counsel. He baldly claimed he wanted a private
attorney because he felt his current counsel could not adequately
represent him without providing any specific reason. His brief
on appeal also does not substantively address the Kates factors
to convince us the trial judge erred by refusing to delay the
trial. No objective evidence is asserted demonstrating trial
counsel was unprepared or otherwise ineffective. The record lacks
13 A-3202-16T4
evidence of prejudice to Richard due to the denial of his
adjournment request.
Second, the record demonstrates the trial judge balanced
Richard's request against Harold's right to permanency. Regarding
permanency, the Supreme Court has stated there are "strong policy
considerations that underscore the need to secure permanency and
stability for the child without undue delay." In re Guardianship
of DMH, 161 N.J. 365, 385-86 (1999). N.J.S.A. 30:4C-15(d) provides
that permanency must be achieved within a period of one year from
removal where a parent has failed to remedy the conditions causing
the removal. Therefore, the trial judge's decision to deny
Richard's request for a continuance was not an abuse of discretion
considering Harold had been in placement with K.M. since November
2015, and in excess of one year.
IV.
Richard challenges the trial judge's findings on the first
prong of the best interests standard. This prong requires the
Division to establish 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). "[T]he
Division must prove harm that 'threatens the child's health and
will likely have continuing deleterious effects on the child.'"
14 A-3202-16T4
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).
Richard argues Dr. Kanen's report and testimony were
"impermissible net opinion[s]" pursuant to Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 410 (2014), because he relied on
an intelligence assessment which "lack[s] psychological
certainty." He argues the assessment was faulty because it
contained inherent contradictions finding Richard had borderline
intelligence, yet he managed to maintain gainful employment.
Richard also argues the test results were invalid because Dr.
Kanen reported Richard was under the influence when the testing
was administered. We find these arguments lack merit.
The exclusion of net opinions is "a prohibition against
speculative testimony." Grzanka v. Pfeifer, 301 N.J. Super. 563,
580 (App. Div. 1997). Therefore, the expert's conclusions must
be based on "(1) the expert's personal observations, or (2)
evidence admitted at trial, or (3) data relied upon by the expert
which is not necessarily admissible in evidence but which is the
type of data normally relied upon by experts in forming opinions
on the same subject." Davis, 219 N.J. at 410 (citation omitted).
In other words, "experts generally [] must be able to identify the
factual bases for their conclusions, explain their methodology,
and demonstrate that both the factual bases and the methodology
15 A-3202-16T4
are scientifically reliable." Landrigan v. Celotex Corp., 127
N.J. 404, 417 (1992).
Here, Dr. Kanen's evaluation included a clinical interview,
the WAIS-V and MCMI-III tests, a bonding evaluation between Richard
and Harold, and a review of the Division's records. There is no
evidence Dr. Kanen relied on any information outside of his
observations or outside of the record to formulate his opinion.
As the trial judge noted:
Dr. Kanen . . . administered standard
psychological intelligence testing to
[Richard]. Dr. Kanen took pains to point out
[Richard's] parenting deficits in his written
evaluation. Dr. Kanen reported that
[Richard's] verbal comprehension index was
below 98% of the general population and . . .
[h]is perceptual reasoning index was below 92%
of the general population . . . [h]is
estimated full scale IQ was 74, which is in
the borderline range and below 96% of its
general population. Dr. Kanen opined that at
this level of cognitive ability daily life is
likely to be a challenge for him; he is likely
to have difficulty independently supporting
even himself and thus the child as well. He
has a history of unstable housing, [and]
difficulty functioning in daily life.
The record demonstrates Dr. Kanen drew his conclusions regarding
Richard's intelligence and daily cognitive abilities from the
results of the WAIS-V and MCMI-III tests. Richard's ability to
maintain employment was not mutually exclusive of his lengthy
history of unstable housing and substance abuse, or the
16 A-3202-16T4
characteristics Dr. Kanen associated with borderline intelligence.
Dr. Kanen's opinion was not based on speculation and was not a net
opinion.
Richard's argument that harm under prong one was not proved
is also without merit. It is well settled the Division need not
demonstrate actual harm in order to satisfy prong one. N.J. Div.
of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App.
Div. 2001). Rather, the focus under the first prong is not on any
"single or isolated harm," but rather 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 (citing N.J.
Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-10
(1986)). The harm may be established by "a delay in establishing
a stable and permanent home." DMH, 161 N.J. at 383.
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." 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)
17 A-3202-16T4
and (2)." DMH, 161 N.J. at 380-81 (citing K.H.O., 161 N.J. at
352-54).
Here, the record establishes Harold was harmed by Richard's
absence from his life. The trial judge found "the conduct of
[Richard] throughout the entire period of the Division's history
with the family has met th[e] standard [for prong one] 'on all
fours.'" The judge recounted that Richard did not identify himself
as Harold's father for the first two years of his life and had
contemplated an identified surrender. The judge stated Richard
"seems to have been uninvolved in [Harold's] life to any meaningful
degree."
The judge noted Richard's lack of a relationship with Harold
was demonstrated through Dr. Kanen's psychological and bonding
evaluation. In addition, Dr. Kanen found Richard would harm Harold
because Richard permitted Tiffany to be Harold's sole caregiver
knowing she had severe substance abuse problems. The judge stated:
The evidence is clear that [Richard] was fully
aware of [Tiffany's] ongoing . . . substance
abuse problem and took no action at all to put
himself in a position to care for his own son.
In fact, . . . [Richard] admitted to never
having complied with services; stating he was
just waiting for [Tiffany] to do so.
The judge credited Dr. Kanen's unrebutted conclusion that
returning Harold to Richard would expose him to an unnecessary
risk of harm.
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In DMH, 161 N.J. at 379, the father failed to parent and left
his child with the mother when he knew they were living in
deplorable conditions. The Court concluded the father's "failure
to perform any parenting functions and to provide nurture, care,
and support constitute[d] a parental harm to [the] child arising
out of the parental relationship" which satisfied N.J.S.A. 30:4C-
15.1(a)(1).
Here, Richard also willfully chose not to parent or come to
the aid of Harold. His withdrawal from Harold subjected him to
harm inflicted by Tiffany's drug abuse and the instability of four
removals. As the trial judge found, Richard never nurtured or
cared for the child, and "during the entire period the Division[]
[was in] contact with the family, [never] maintained stable,
independent housing where he could provide a suitable home for
Harold." Accordingly, the trial judge correctly found that the
Division established harm under the first prong of the best
interests standard.
V.
The third prong of the best interests of the child standard
requires the Division to establish that it made reasonable efforts
to help the parent correct the circumstances that led to the
child's removal from the parent's care, and "considered
alternatives to termination of parental rights." N.J.S.A. 30:4C-
19 A-3202-16T4
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. DMH, 161 N.J. at 390.
N.J.S.A. 30:4C-15.1(c) defines diligent efforts as those
reasonable "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 lists examples of "reasonable
attempts" at reunification, 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.]
Richard argues the Division's failure to make reasonable
efforts to investigate his brother as a placement for the child
was a violation of N.J.S.A. 30:4C-12.1. Richard likens his case
to N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super.
568, 581-82 (App Div. 2011), where we stated "the Division's
statutory obligation does not permit willful blindness and
20 A-3202-16T4
inexplicable delay in assessing and approving or disapproving a
relative known to the Division[.]"
Here, however, the Division met its burden of reasonable
efforts to search for a relative placement for the child. First,
as we noted, from the inception of the Division's involvement with
Tiffany in 2012, the Division sought to identify Harold's father.
The record demonstrates the Division persisted in its efforts, but
was not able to identify Richard as the father until April 2014.
Even then, Richard's whereabouts were unknown until February 2015,
because the Division could not find him. Indeed, the record
demonstrates Richard frustrated the Division's efforts to share
and obtain information from him by failing to answer telephone
calls or inform the Division of his whereabouts, which limited the
Division's ability to explore relative placements.
Once Richard was identified, the record demonstrates he
delayed any progress the Division could make by failing to appear
for several paternity tests and failing to remain in contact with
the Division altogether. It was not until December 1, 2015, when
Harold was nearly four years old, and while Richard was
incarcerated, that paternity testing was performed which
determined Richard to be the father. Richard was the cause of the
delay.
21 A-3202-16T4
When the Division was able to locate a relative, the paternal
grandmother, she at first rejected the notion of being a resource
for Harold, and then was ruled out as a placement. Although,
Richard's brother was suggested by the paternal grandmother as a
resource, he never presented himself to be evaluated. Also,
Richard did not request his brother be evaluated.
N.J.S.A. 30:4C-12.1(a) requires the Division search for and
assess relatives as potential placements; however, the Division
is not obligated "to search the fifty states or even the twenty-
one counties to identify [relatives]." K.L.W., 419 N.J. Super.
at 582. For these reasons, we are not persuaded the Division
failed to make reasonable efforts to bring about family
reunification.
Richard also argues the Division "did not undertake
reasonable efforts to develop a plan for services in violation of
its statutory responsibilities under N.J.S.A. 30:4C-15.1(c)." We
disagree.
The determination whether the Division's efforts were
sufficient is a fact sensitive inquiry. D.M.H., 161 N.J. at 390.
The Division need only provide "coordinated" services with a
"realistic potential" of success. N.J. Div. of Youth & Family
Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002).
Success is not guaranteed as "even [the Division]'s best efforts
22 A-3202-16T4
may not be sufficient to salvage a parental relationship." F.M.,
211 N.J. at 452.
The Division offered Richard numerous services once he was
identified as the father, and a road map for reunification with
Harold. However, when this possibility was raised, Richard
informed the case worker "there's nothing I can do." Nevertheless,
the Division encouraged visitation, and offered Richard bus passes
so he could see Harold more often, substance abuse evaluations and
treatment, and psychological evaluations. Richard failed to take
advantage of services. He missed numerous scheduled appointments
for paternity testing, substance abuse, psychological evaluations,
drug screenings and frequently missed visitation.
Thus, the trial judge concluded: "[B]ased on the evidence of
continuing substance abuse, unstable and unidentified housing by
[Richard] and the results of his bonding and psychological
evaluations, it would not be possible to place [Harold] in his
care." For these reasons, the Division proved by clear and
convincing evidence prong three of the best interests standard.
N.J.S.A. 30:4C-15.1(a)(3).
Affirmed.
23 A-3202-16T4