DCPP VS. J.R. AND W.A., IN THE MATTER OF THE (FG-02-0044-19, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-4668-18T4
NEW JERSEY DIVISON
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
J.R.,
Defendant-Appellant,
and
W.A.,
Defendant.
___________________________
IN THE MATTER OF THE
GUARDIANSHIP OF C.R.,
a Minor.
____________________________
Submitted June 1, 2020 – Decided July 13, 2020
Before Judges Ostrer and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FG-02-0044-19.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Phuong Vinh Dao, Designated Counsel, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Peter Damian Alvino, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Linda Vele Alexander,
Designated Counsel, on the brief).
PER CURIAM
Defendant, J.R. (John), 1 appeals from the Family Part's June 10, 2019,
order terminating parental rights to his biological daughter, Cara, then three and
one-half years old. Judge Jane Gallina Mecca convened a guardianship trial
after which she ruled that the Division of Child Protection and Permanency
(Division) proved the four prongs of the best-interests-of-the-child test, N.J.S.A.
30:4C-15.1(a), by clear and convincing evidence. On appeal, defendant
1
For the reader's convenience, we use pseudonyms for defendant, codefendant
W.A. (Willa), their daughter, Cara, and the child's maternal grandmother,
Wanda.
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challenges the trial court's findings with respect to all four prongs. The Division
and Cara's Law Guardian contend the evidence at trial was sufficient and urge
us to affirm the judgment.
The record before us clearly shows that John has chosen to be a complete
stranger to his daughter. The Division presented overwhelming and
uncontradicted evidence that defendant did not cooperate with services offered
by the Division, did not appear for evaluations or drug screenings, did not attend
court proceedings, including the guardianship trial, and did not visit Cara or seek
to visit with her. Cara is currently placed with her maternal grandmother,
Wanda, who is willing and ready to adopt her.
After carefully reviewing the record in view of the parties' arguments,
applicable legal principles, and standard of review, we affirm the termination of
John's parental rights substantially for the reasons set forth in Judge Mecca's
oral opinion. The judgment will free Cara for adoption by her grandmother,
who will continue to provide her permanency, stability, and love.
I.
We briefly summarize relevant events in the long procedural history
leading up to this appeal. On October 24, 2016, Cara was placed into the care
and supervision of the Division because of allegations that her mother, Willa,
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was under the influence of illicit substances and unable to care for the child.
John did not appear at the hearing. The judge found that the Division made a
prima facie showing that Cara was abused or neglected. The court ordered John
and Willa to attend a substance abuse evaluation and submit to random urine
screens, hair follicle, and nail tests. Additionally, the court ordered that any
contact between Cara and her parents must be supervised by the Division or a
Division-approved person.
On March 1, 2018, Cara was placed in the home of her maternal
grandmother, Wanda. On October 2, 2018, a Family Part Judge entered a
permanency order finding the Division's permanency plan of termination of
parental rights was appropriate and acceptable because both Willa and John had
untreated substance abuse issues and were noncompliant with services. On
November 13, 2018, the Division filed a complaint for guardianship.
On June 10, 2019, Willa appeared before the court telephonically and
surrendered her parental rights to Cara so that Wanda could adopt her. Judge
Mecca then held a guardianship trial concerning John's parental rights. John did
not appear at the trial and no evidence was presented on his behalf. Judge Mecca
issued an oral decision terminating John's parental rights after finding that the
Division met its burden of proof under the best-interests-of-the-child test.
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II.
We presume the parties are familiar with the facts relevant to this
litigation. We focus on the evidence adduced at the guardianship hearing
concerning John's persistent efforts to evade the Division, revealing his
indifference towards Cara. We need not, however, recount every instance when
defendant failed to reply to notices, meet with Division caseworkers, answer his
phone or return voicemail or text messages, submit to drug tests, submit to an
evaluation by a psychologist, attend court hearings, or attend scheduled visits
with Cara.
The gist of defendant's argument is that the Division did not prove that his
mother actually gave him the mail the Division sent to him while he lived at her
house. That argument is implausible. But even were we to accept his bald
assertion that his mother suppressed written correspondence sent to him, and
failed to tell him when Division employees came to the house to speak with him
in person, the occasional contacts between defendant and the Division amply
support the trial court's findings with respect to his indifference to reuniting with
Cara.
On one occasion, John walked away from a Division employee who came
to the house. On two other occasions when Division employees visited John's
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mother's house unannounced, he was home but refused to leave his bedroom to
talk to the employees. On another occasion, a Division employee went to John's
home but was informed by John's mother that he did not want to speak with the
employee. On yet another occasion, a Division employee went to the home
accompanied by Wanda. John briefly spoke with Wanda but refused to speak to
the employee.
Even when John at one point expressed some interest in receiving services
from the Division, he failed to follow through. Instead, he returned to his pattern
of refusing to communicate with the Division, hanging up and turning off his
phone, failing to answer voicemail messages, refusing to submit to
psychological and substance abuse evaluations, failing to attend court hearings,
and failing to attend scheduled visits with Cara.
At the guardianship trial, the court heard testimony from a psychologist
and from a Division caseworker. No witnesses testified on behalf of John.
The Division's expert, Dr. Dyer, testified that because he was unable to
meet with John to conduct an evaluation, he had no opinion as to John's
parenting capacity or psychological functioning. Dr. Dyer did opine, however,
that Wanda is a competent and well-adjusted adult who is emotionally invested
in Cara. He also testified that Cara referred to Wanda as "mommy," indicating
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that after two years of placement together they had developed a profound
attachment to each other.
Dr. Dyer further opined that removing Cara from Wanda's care would be
distressing, lead to behavior regression—including aggressive and withdrawing
behavior—and would place Cara at risk for long-term effects on her self-esteem,
trust, and capacity for attaching to new caretakers. Dr. Dyer testified that
delaying permanency for Cara would cause tremendous harm, in part because of
her strong attachment to Wanda and John's absence in her life.
A Division caseworker testified as to John's unresponsiveness and outright
evasions, laying out the numerous instances when John refused to engage with
the Division, or with Cara. On cross-examination, she acknowledged that the
Division had no personal knowledge if the letters the Division sent to John's
mother's home were actually given to John. 2
The trial court made several findings of fact, including that John had
chosen not to take advantage of any Division services. The court also found that
he chose not to take advantage of any visitation opportunities. The court
2
That cross examination appears to be the gravamen of John's trial strategy.
We note that John did not testify or present any evidence to support his claim
that his mother did not relay Division correspondence and in-person or
telephonic messages to him.
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concluded that John had "no true interest" in reunifying with Cara. The court
agreed with Dr. Dyer that Cara's safety and emotional well-being depended on
her remaining in Wanda's care.
III.
We begin our analysis by acknowledging the legal principles governing
this appeal. A parent has a constitutional right to raise his or her biological
child, which "is among the most fundamental of all rights." N.J. Div. of Youth
& Family Servs. v. F.M., 211 N.J. 420, 447 (2012) (citing N.J. Div. of Youth
& Family Servs. v. E.P., 196 N.J. 88, 102 (2008)). However, the State as parens
patriae may act to protect a child from physical or emotional harm. Ibid. (citing
E.P., 196 N.J. at 102). A parent's constitutional rights, in other words, are not
absolute and must yield to the State's interest in protecting a child from harm or
endangerment. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599
(1986) (citing In re Dep't of Pub. Welfare, 412 N.E.2d 28, 36 (Mass. 1981)).
Accordingly, the State can seek to sever the parent-child relationship when the
interests of the parent and child are irreconcilable. Ibid. (citing Dep't of Pub.
Welfare, 412 N.E.2d at 36). Importantly, a child has a right to a permanent,
stable, and safe placement. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J.
Super. 76, 111 (App. Div. 2004).
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The termination of parental rights should only be pursued when "proof of
parental unfitness is clear." F.M., 211 N.J. at 447. In a termination proceeding,
the trial court determines whether the Division has satisfied the four elements
of the best-interests-of-the-child statutory test. N.J.S.A. 30:4C-15.1(a). That
statute requires the Division prove 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.
[Ibid.]
When applying the best interests test, a trial court must pay specific
attention to a child's need for permanency and stability. In re Guardianship of
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D.M.H., 161 N.J. 365, 385–86 (1999). As a result, the trial court must consider
"not only whether the parent is fit, but also whether he or she can become fit
within time to assume the parental role necessary to meet the child's needs."
N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div.
2006) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).
The scope of appellate review of the decision to terminate 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)). An appellate court should
defer to the trial court's credibility determinations and to its "special expertise
in the field of domestic relations." N.J. Div. of Youth & Family Servs. v. R.G.,
217 N.J. 527, 553 (2014) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)).
An appellate court therefore should not alter the findings below unless there was
a manifest denial of justice. N.J. Div. of Youth & Family Servs. v. V.K., 236
N.J. Super. 243, 255 (App. Div. 1989) (citing Meshinsky v. Nichols Yacht Sales,
Inc., 110 N.J. 464, 475 (1988)). However, appellate courts review de novo the
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trial court's interpretation of the law and legal findings. R.G., 217 N.J. at 552
(citing Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).
IV.
John contends that the trial court erred in finding that the Division
satisfied prong one of the statutory test because the Division never substantiated
or established that he abused or neglected the child. That argument misconstrues
the law. John's failure to nurture or care for Cara for a prolonged period of time
amply satisfies this prong.
Under the first prong of the best-interests-of-the-child test, the trial court
examines the effect of the harm that stems from the parent-child relationship
over time. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004).
It may consider both physical and psychological harm and, therefore, may base
its termination decision on emotional injury in the absence of physical harm.
See In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977) ("The
absence of physical abuse or neglect is not conclusive on the issue of custody.").
Further, "[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." D.M.H., 161 N.J. at 379 (citing In re Guardianship
of K.H.O., 161 N.J. 337, 352–54 (1999)).
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Furthermore, a parent's "persistent failure to perform any parenting
functions and to provide nurture, care, and support" to a child is "a parental harm
to that child arising out of the parental relationship" under the statute. Id. at 380
(citing K.H.O., 161 N.J. at 352–54). Stated differently, "[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) (emphasis added) (citing J.C., 129 N.J. at 18).
In this instance, Judge Mecca found that John "has shown no active role
in attempting to visit with the child." We conclude the trial record provides
ample support for Judge Mecca's conclusion that John's inaction has caused
harm sufficient to satisfy the first prong of the four-part test.
V.
We next address John's contention that the trial court erred in finding the
second prong of the best-interests-of-the-child test. That prong requires the
Division to demonstrate that 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."
N.J.S.A. 30:4C-15.1(a)(2). This prong, which is closely related to the first
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prong, can be demonstrated in two alternative ways. K.H.O., 161 N.J. at 352.
First, the Division can show that it is reasonably foreseeable that the parent will
not or cannot cease to inflict harm upon the child. A.W., 103 N.J. at 606–07,
615–16. This can be established by proving parental "dereliction and
irresponsibility," which can be shown by proof of continued substance abuse,
the inability to provide a stable home, and the withholding of nurturing and
attention. K.H.O., 161 N.J. at 353.
The other way of establishing the second prong is by presenting evidence
that removing the child from his or her resource placement would cause serious
and enduring mental or emotional impairment. N.J.S.A. 30:4C-15.1(a)(2).
Under this alternative approach, a trial court examines the bonds between a child
and his or her resource parent(s). See D.M.H., 161 N.J. at 382 (finding the
second prong from N.J.S.A. 30:4C-15.1(a) established partly based upon the
court-appointed expert's determination that "breaking the children's bond with
their foster family would cause substantial and enduring harm to the children").
We believe the proofs submitted at the guardianship trial amply establish
the second prong under both theories. Defendant's dereliction and
irresponsibility in the form of withholding of nurturing and attention is self-
evident. The trial court in its opinion, however, focused on the second option.
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Judge Mecca concluded, "[i]n this case, Dr. Dyer testified that the child, [Cara],
was doing quite well with the current resource parent, her grandmother, and the
removing the child from that relationship would have both short-term and long-
term effects that would be devastating to [Cara] and would cause serious harm
to her."
We hold the trial court acted well within its discretion in crediting Dr.
Dyer's unrefuted testimony. The expert's opinion constitutes substantial
credible evidence to clearly and convincingly satisfy the second prong.
VI.
We turn next to the third prong of the statutory test, which requires the
Division to show that it 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 the termination of parental
rights." N.J.S.A. 30:4C-15.1(a)(3). As a result, the trial court must decide if
the Division made reasonable efforts to reunify the family. K.H.O., 161 N.J. at
354 (citing N.J.S.A. 30:4C-15.1(a)(3)). Pursuant to statute, "reasonable efforts"
are defined as:
(1) consultation and cooperation with the parent in
developing a plan for appropriate services;
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(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).]
We have previously recognized that reasonable efforts "vary depending
upon the circumstances of the removal." N.J. Div. of Youth & Family Servs. v.
F.H., 389 N.J. Super. 576, 620 (App. Div. 2007) (citing N.J. Div. of Youth &
Family Servs. v. A.G., 344 N.J. Super. 418, 437 (App. Div. 2007)). The
Division's success regarding this prong is not measured by the parent's
participation in the necessary services. D.M.H., 161 N.J. at 393. "[E]ven [the
Division's] best efforts may not be sufficient to salvage a parental relationship."
F.M., 211 N.J. at 452. Pursuant to statute, the Division must: (1) work with
parents to develop a plan for services; (2) provide the necessary services; (3)
facilitate visitation; and (4) notify parents of the children's progress during an
out-of-home placement. N.J.S.A. 30:4C-15.1(c).
John contends the Division did not prove the third prong by clear and
convincing evidence because several notices were delivered to his mother's
address and the Division has no proof John actually received those notices. We
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have already noted this contention is utterly devoid of merit. John provided his
mother's address for the Division to communicate with him. On multiple
occasions John's mother told a Division employee she would pass along a
mailing or message. Furthermore, although John's modus operandi was to avoid
personal contact with Division employees, there were instances when a Division
employee was able to speak with John and hand deliver to him notices of
upcoming court dates and evaluations.
The record before us thus clearly supports the trial court's finding that the
Division offered various services to John, including substance abuse
evaluations, visitation, and psychological evaluations—"none of which [John]
took advantage of or sought to complete." Additionally, the court found "the
Division had kept [John] apprised of not only the orders that were entered by
the court but also appointments that were made for him in terms of evaluation
for substance abuse as well as a psychological evaluations." The court also
found the Division provided John ample opportunity to visit Cara, and he failed
to take advantage of the opportunity.
Judge Mecca further noted, "the reasonableness of the Division's efforts
is not measured by their success. In this case there was going to be no success
because [John] has made no efforts to even partake in those services." We agree
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completely with Judge Mecca's conclusion. We cannot imagine what further
steps the Division might reasonably have taken to offer services and to induce
John to take advantage of them. The failure to reunite defendant and Cara is in
no way attributable to the Division. John alone is responsible for this failure.
VII.
Finally, John contends the Division failed to prove by clear and
convincing evidence that terminating his rights would not do more harm than
good. He claims, for example, that the Division provided no evidence regarding
Cara's bond with John, noting that Dr. Dyer never completed an evaluation of
any such bond. That argument ignores the fact that John failed to submit to an
evaluation. He alone is responsible for the absence of a bonding evaluation.
But even without a formal psychological evaluation, it is hard to imagine how a
three-year-old might bond with a father who chooses not to visit her.
The fourth prong of the best interests test requires that the Division
demonstrate that "[t]ermination of parental rights will not do more harm than
good." N.J.S.A. 30:4C-15.1(a)(4). The court may rely on expert testimony
when conducting its analysis and may balance the potential injury that a child
could experience through the termination of parental rights against the harm that
the child might suffer if removed from the resource placement. K.H.O., 161
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N.J. at 355, 363. Termination of parental rights is necessary when it permits a
child to have a secure and permanent home. N.J. Div. of Youth & Family Servs.
v. B.G.S., 291 N.J. Super. 582, 592–95 (App. Div. 1996). Relatedly, a child
should not "languish indefinitely" in an out-of-home placement while a parent
tries to correct his or her parenting difficulties. N.J. Div. of Youth & Family
Servs. v. S.F., 392 N.J. Super. 201, 209 (App. Div. 2007) (citing N.J. Div. of
Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004)).
Judge Mecca found the "evidence in this case was quite clear" because
both a caseworker and Dr. Dyer testified that the child was thriving in Wanda's
care. Additionally, the court observed that Wanda was "the focal love and
support interest to the child" and that Cara referred to her as her mother. The
court accepted Dr. Dyer's expert opinion that if Cara and Wanda's bond was
disrupted, Cara would suffer serious emotional and psychological trauma.
Finally, Judge Mecca discussed Cara's best interests:
It is contrary to the child's best interest to prolong
permanent placement as described by Dr. Dyer, because
the natural parent is unable to care for the child for a
protracted period. Once again, [Willa] has already
entered into a[n] identified surrender, and [John] has
shown no true interest, even though he may have stated
at sometimes about his request to be reunited with
[Cara], but has taken no part in any services nor visited
with the child for an extended period of time and has
basically abandoned [Cara].
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We agree completely with Judge Mecca's conclusion that the serious harm
Cara would face if she was separated from Wanda outweighs any harm from
terminating John's parental rights. There is no reason for Cara to languish
indefinitely while John continues to evade the Division and the services it offers.
Wanda is ready and able to adopt Cara and provide her with permanency that
would benefit her. Given the need for permanency and Cara's strong bond with
Wanda, we do not hesitate to conclude that the Division proved the fourth prong
by clear and convincing evidence.
To the extent we have not already addressed them, any additional
arguments John has made lack sufficient merit to warrant discussio n in this
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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