Opinion
DOCKET NO. A-4697-10T2 DOCKET NO. A-4698-10T2
05-29-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. C.A.H., SR. and S.H., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF C.A.H., JR., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant C.A.H., Sr. (John A. Salois, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant S.H. (Laura M. Kalik, Designated Counsel, of counsel and on the briefs). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Erin O'Leary, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.A.H., Jr. (Christopher A. Huling, Designated Counsel, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves and Koblitz.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-80-10.
Joseph E. Krakora, Public Defender, attorney for appellant C.A.H., Sr. (John A. Salois, Designated Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for appellant S.H. (Laura M. Kalik, Designated Counsel, of counsel and on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Erin O'Leary, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.A.H., Jr. (Christopher A. Huling, Designated Counsel, of counsel and on the brief). PER CURIAM
In these consolidated guardianship appeals, a married mother, S.H. (Susan), and father, C.A.H., Sr. (Carl), appeal from an order entered on April 11, 2011, terminating their parental rights to C.A.H., Jr. (Calvin), who was born at the end of 2009. Upon his release from the hospital two days after his birth, Calvin was immediately placed with his current foster parents, who wish to adopt him. The law guardian for the child supports the termination of Susan's and Carl's parental rights. We affirm.
We use fictitious names to preserve the confidentiality of the parents and children.
On August 6, 2009, while Susan was pregnant with Calvin, both parents' rights to a younger child, Susie, were terminated after trial. We affirmed that determination. N.J. Division of Youth & Family Servs. v. S.H., No. A-2895-08, (App. Div. July 19, 2010). In that opinion, we set forth in detail the extensive efforts made by the Division of Youth and Family Services (Division) to reunify the parents with Susie, as well as the many obstacles to reunification posed by the parents. We also commented at length concerning the expert testimony presented at trial. We incorporate by reference our discussion of the family's history and the Division's involvement. (slip. op. at 6-22).
To summarize, Carl was convicted of sexual assault on a four-year-old child, he had an aggressive relationship with Susan, a history of alcohol and substance abuse, is mentally ill and has suicidal thoughts and actions. Susan lacked any insight into the risk Carl posed to Susie and remained committed to living with him. She also suffers from long-standing psychiatric problems, was unable to support herself, relied on a series of abusive relationships with men, and led a nomadic and unstable life. (slip op at 27-28).
Several days after Calvin was born, the Division filed an order to show cause and an abuse and neglect complaint against Carl and Susan. A Division supervisor testified at trial that Susan was living in a motel with unresolved mental health issues and had made no plans for how she would care for Calvin. Carl was incarcerated at the time.
On the initial date of December 31, 2009, Susan appeared by telephone from the hospital. Both parents then failed to appear at the January 22, 2010 return date, when the court entered an order dismissing the abuse and neglect litigation because the Division had already filed a complaint for guardianship. On that date, the judge also relieved the Division of its obligation to provide reasonable efforts to reunify the parents with Calvin due to the recent involuntary termination of their rights to Susie, pursuant to N.J.S.A. 30:4C-11.2. Susan later admitted she had missed the hearing because she "was running late that day." She arrived late at the courthouse and was informed of the result of the proceedings. Carl was not transported from the Burlington County Jail due to inclement weather. Carl was released from jail by the beginning of February 2010.
At a subsequent court date, the parents again failed to appear. The parents and counsel finally appeared in court on March 23, 2010, at which time the judge informed the parents of their option to seek reconsideration of the order relieving the Division of its obligation to provide reasonable reunification efforts because that order was entered when the parents were not present. The parents did not file an application for reconsideration.
Susan's attorney represented that Susan had fallen and both parents were on the way to the hospital.
The Division provided both parents with visitation, as well as train and bus passes. However, the parents frequently failed to confirm the visits and were often either late or cancelled.
The parents continued to have a combative relationship. In March 2010, both called the Division to report that the other should not be permitted to visit with Calvin. Carl alleged that Susan had stabbed him with a knife, was not taking her medication, and was lying about seeing a therapist. Susan reported that Carl was not taking his medication for bi-polar disorder. Later, they both said the allegations were untrue and were made only because they were fighting.
On April 5, 2010, both parents were arrested for shoplifting at a grocery store.
Also in April 2010, both parents were scheduled to attend an evaluation with Dr. Jason S. Fleming, who had previously evaluated both parents and testified at the earlier trial concerning Susie. After a chaotic attempt by both parents to skip the evaluation, they reluctantly agreed to participate. After a short while in Dr. Fleming's office, however, Susan grew irritated and both parents left. Susan rescheduled an appointment through counsel.
Carl did not seek to reschedule an evaluation or arrange a bonding evaluation.
On June 16, 2010, Carl was arrested for violating the conditions of the community supervision for life imposed as a result of his prior conviction. N.J.S.A. 2C:43-6.4D. He remained incarcerated until April 1, 2011.
At the end of July 2010, Susan's lawyer suggested a cousin, M.B., as a potential placement for Calvin. He said he wanted to call her as a telephonic witness to testify at the termination trial, but the judge indicated he wanted her to appear in person to "test veracity." Susan's lawyer also presented a domestic violence final restraining order against Carl dated June 3, 2010, as evidence that she had ended their relationship.
Susan petitioned to have the final restraining order against Carl dismissed on January 11, 2011.
Susan then began living with another man, Gary, who ultimately did not cooperate with a Division background check. That relationship ended.
Susan thereafter began to attend therapy, this time at Catholic Charities in Trenton. On August 11, 2010, the clinician noted that "although she does not work, nor attend school she appears overwhelmed, disorganized, and has not demonstrated an ability to meet her own needs. I am concerned that she will not be able to parent without support."
She had previously attended therapy at the University of Medicine and Dentistry of New Jersey.
Dr. Fleming conducted a psychological evaluation of Susan on October 15, 2010. In his report, he found that Susan evidenced some improvement, but indicated that she
remains a fragile woman who is currently relying on many external resources in order to simply carry out her day to day responsibility. I believe that adding additional stressors to her life, namely a young child, under these conditions, will place undue stress on an already fragile person.
After conducting bonding evaluations between Calvin and Susan and between Calvin and his foster parents, Dr. Fleming opined that, although Calvin had a good relationship with his mother, his foster parents "have a positive, loving and nurturing relationship with [Calvin] and they clearly function[] as his [only] primary attachment figures." Dr. Fleming found that they would be able to "buffer any harm [Calvin] might suffer" if his relationship with his mother is severed. While acknowledging that a bonding evaluation with such a young child was not highly probative, Dr. Fleming supported adoption of Calvin by his foster parents.
Carl testified at trial, denying all allegations of domestic violence. He identified supplemental security income and social security disability as his lone sources of income, which he claimed to receive because of "mental health reasons and physical reasons." Notably, however, he was unaware of the specific nature of the disabilities that qualified him for these benefits.
Susan testified that she was looking for work, was on medication and had started a new therapy program. Although she was living with her mother, she testified that she was looking for other housing, including a county program that provided housing for mothers and their children. Susan also testified that her cousin M.B. was still willing to care for Calvin.
The Division investigated the friends and family suggested by the parents for placement. They either did not return calls or written requests for information, or had child protective services involvement of their own. The Division therefore ruled them out as placement options.
Calvin's foster parents, who are committed to adopting him, relocated to Maryland in August 2010 because the foster mother is on active duty in the military and was transferred due to a New Jersey base closing. After relocating, she brought Calvin to New Jersey monthly for extended parental visits.
On appeal, Carl raises the following issues:
POINT I: DYFS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT WAS NECESSARY TO TERMINATE C.H.'S PARENTAL RIGHTS IN ORDER TO PROTECT HIS CHILD'S BEST INTERESTS.Susan raises the following issues on appeal:
A. C.H. WAS NOT PROVIDED NOTICE OF THE HEARINGS FOR TEMPORARY CUSTODY.
B. C.H. WAS DENIED HIS FUNDAMENTAL RIGHT TO COUNSEL.POINT II: THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE DYFS FAILED TO PROVE THE FOUR PRONGS OF THE BEST-INTEREST TEST OF N.J.S.A. 30:4c-15.1(a) BY CLEAR AND CONVINCING EVIDENCE.
C. THE COURT IMPROPERLY RELIEVED DYFS OF PERFORMING REASONABLE EFFORTS TO REUNIFY C.H. WITH HIS SON, C.A.H.
D. THE COURT IMPROPERLY TERMINATED FN LITIGATION WITHOUT DETERMINING WHETHER STATE INTRUSION INTO THE FAMILY WAS WARRANTED.
A. PRONG I WAS NOT PROVEN BECAUSE THE COURT MISCONSTRUED THE COMMUNITY-SUPERVISION-FOR-LIFE PROVISIONS IN N.J.A.C. 10:71-6.11 THAT ALLOW MEGAN'S LAW OFFENDERS TO BE IN THE PRESENCE OF CHILDREN AS LONG AS A PARENT OR GUARDIAN IS PRESENT.
B. THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE COURT FAILED TO ANALYZE ANY EVIDENCE REGARDING PRONGS I AND II-- THAT C.A.H.'S HEALTH AND DEVELOPMENT HAVE BEEN AND WILL CONTINUE TO BE ENDANGERED BY C.H. AND THAT C.H. WAS UNWILLING TO ELIMINATE THE HARM TO HIS CHILD-- AND INSTEAD RELIED SOLELY ON ITS RECOLLECTION OF PREVIOUS LITIGATION.
C. THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE DYFS DID NOT PROVIDE SERVICES, INCLUDING NEEDLESSLY LIMITING VISITATION, AND BECAUSE THE COURT DID NOT CONSIDER PLACEMENT WITH A PROFFERED RELATIVE AS AN ALTERNATIVE TO TERMINATION.
D. DYFS DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF C.H.'S RIGHTS WOULD NOT DO MORE HARM THAN GOOD TO C.A.H.
POINT I: DYFS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT WAS NECESSARY TO TERMINATE S.H.'S PARENTAL RIGHTS IN ORDER TO PROTECT HER CHILD'S BEST INTERESTS.
A. THE DIVISION DID NOT PRESENT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE COURT'S FINDING THAT THE HEALTH AND DEVELOPMENT OF C.A.H. WAS AND WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.POINT II: THE TRIAL COURT'S FAILURE TO APPOINT COUNSEL TO REPRESENT S.H. AS A DEFENDANT IN THE FN ABUSE AND NEGLECT ACTION AND THE ENTRY OF AN ORDER, WITHOUT A PLENARY HEARING, RELIEVING DYFS OF ITS OBLIGATION TO PROVIDE REASONABLE EFFORTS, CONSTITUTED A FUND[A]MENTAL DEPRIVATION OF S.H.'S PROCEDURAL DUE PROCESS RIGHTS.
B. THE DIVISION DID NOT PRESENT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE COURT'S FINDING THAT S.H. WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM.
C. THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE DYFS FAILED TO ADEQUATELY ASSESS RELATIVES FOR PLACEMENT OF C.A.H.
D. THE DIVISION DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF S.H.'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
A. S.H.'S RIGHT TO COUNSEL IS CONSTITUTIONALLY MANDATED AND STATUTORILY REQUIRED.
B. THE TRIAL COURT ERRED BY UTILIZING A PRIOR TERMINATION AS A PER SE TEST TO DEPRIVE S.H. OF DYFS' SERVICES.
After taking judicial notice of the prior termination proceedings, the trial judge reviewed the parents' history during the twenty months since the termination of their rights to Susie and found that the Division met its burden of proving, by clear and convincing evidence, all four statutory prongs under N.J.S.A. 30:4C-15.1(a), and that neither Carl nor Susan could become fit parents in time to meet Calvin's needs. See In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Given the importance of parental fitness in determining the children's best interests involved in this guardianship action, In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002), we affirm substantially for the reasons expressed by the trial judge.
The same judge presided over both termination trials.
The judge properly considered the evidence presented by the parties in the previous termination case, as well as his prior findings. See N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88 (2011) (holding that the court could not consider evidence adduced at a Title 9 proceeding in the Title 30 trial because the parents should be aware of the nature of the proceedings). The doctrine of collateral estoppel also supports the judge's incorporation of the facts adduced at the recent trial involving Susie. See Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006).
Here both trials were conducted pursuant to Title 30.
Both parents allege that the Division was remiss in not facilitating sufficient visits as required by statute. N.J.S.A. 30:4C-15.1(c)(4); N.J.A.C. 10:122D-1.1(b). Susan argues that the Division should have removed Calvin and placed him with a more conveniently located foster family when Calvin's foster mother was relocated to Maryland by the military. Rather than disrupt Calvin's placement, the Division provided longer, although less frequent, visitation. Susan did visit and established a positive relationship with Calvin.
Carl was unable to visit with Calvin because of his incarceration for the ten months prior to trial. See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div.), certif. denied, 192 N.J. 68 (2007) (recognizing "the difficulty and likely futility of providing services to a person in custody") (quoting Division of Youth and Family Servs. v. S.A., 382 N.J. Super. 525, 535-36, certif. denied, 192 N.J. 68 (2007)). Prior to his incarceration, however, the Division provided both parents with transportation assistance to facilitate visitation with Calvin. The visitation provided by the Division to both parents under these circumstances met the statutory requirements.
Carl asked that visits be arranged for the infant at the jail where he was incarcerated, but the judge denied this request.
The parents also allege that the Division did not properly investigate Susan's cousin, M.B., as a possible placement for Calvin. The Division does have an obligation to contact relatives "who may be willing and able to provide the care and support required by the child." N.J.S.A. 30:4C-12.1; see N.J. Division of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 578-79 (App. Div. 2011) (reversing a decision to terminate parental rights because the Division made no effort to contact the known maternal grandparents who had custody of the child's four siblings and regular contact with the child); N.J.S.A. 9:6B-4. M.B., who lives in Virginia, initially agreed to care for Calvin and was willing to cooperate with the interstate investigation required pursuant to N.J.S.A. 9:23-5.
Prior to requesting an interstate evaluation, the Division sought M.B.'s child protective services records. When those records revealed only an unfounded allegation of child abuse or neglect, the Division called M.B. to ensure that she remained interested in caring for Calvin. M.B. did not return the calls. The Division sent M.B. a letter on May 18, 2010, which indicated that she had been ruled out as a placement for Calvin because of her lack of contact with the Division and suggested she call the Division caseworker. M.B. again did not contact the Division.The Division made sufficient efforts to investigate M.B. as a placement option under these circumstances.
We permitted Susan to supplement the record with an unsigned letter dated May 11, 2010, purportedly from M.B. to Susan's trial counsel, indicating that M.B. and her husband have attempted to contact the Division numerous times to express their interest in "attaining the guardianship" of Calvin. This letter was not offered into evidence at trial and is not authenticated. However, even if we were to consider the letter, the proofs on the whole would support the Division's position that it made sufficient efforts to investigate M.B. as a placement alternative.
Both Carl and Susan also contend their rights were violated by the decision to eliminate the Division's obligation to make reasonable efforts to provide services to facilitate reunification. That decision was made at the return date of an order to show cause filed in the initial abuse and neglect proceeding involving Calvin. Neither parent appeared at the January 22, 2011 hearing and were not then represented by counsel. After they obtained counsel and were present in court, on March 23, 2010, they were explicitly informed of their option to file a motion for reconsideration, but chose not to do so.
The Division argues that any defect in the abuse and neglect proceeding should have been raised as an appeal to the dismissal of that action. Given the importance of providing the parents with due process during all proceedings that led to the termination of their parental rights, we address this issue in this appeal.
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The applicable statute, N.J.S.A. 30:4C-11.2, requires that before relieving the Division of its obligation to make reasonable efforts to reunify, a court must find both evidence of an involuntary termination of parental rights to another child and that "efforts to prevent placement [are] not reasonable due to risk of harm to the child's health or safety." N.J.S.A. 30:4C-11.2(b); N.J. Division of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 536 (App. Div. 2006). Clearly, this type of decision should be made in the presence of the parents and their counsel, who should be permitted to contest the reasonableness in light of the current harm to this child. However, the parents were afforded an opportunity to re-litigate this issue and they did not do so. Moreover, the order terminating parental rights to Susie was entered less than seven months before the decision to relieve the Division of its obligation.
The litigation involving Susie began over two and one-half years before that trial was completed, during which time the Division provided services to the parents without success. Under these circumstances, the court's failure to seek input from the parents regarding the decision to eliminate the Division's obligation to provide services constitutes harmless error. R. 2:10-2.
Despite the order relieving the Division of the obligation to make reasonable efforts, the Division facilitated supervised visits for both parents, provided transportation passes and lengthened the duration of Calvin's visits with Susan to make up for the decrease in frequency after the foster parents moved to Maryland.
Furthermore, Susan obtained mental health counseling at various locations and temporary housing through a church, as well as welfare assistance. See In Re Guardianship of D.M.H., 161 N.J. 365, 393 (1999) (determining that services need not be provided exclusively by the Division). Her nomadic existence continued throughout the earlier termination litigation, during which the Division met its burden to provide services to reunify the parents. She was also unable to maintain stable housing throughout this litigation.
The Division furnished services to the parents, as did other entities, both public and private. Calvin should not have been forced to wait an additional year for permanency while the Division once again provided the full gamut of services to the parents in the hope of a positive outcome. Calvin is entitled to a safe, secure, stable, nurturing and permanent home without undue delay. He appears to have found such a home with his foster parents.
To the extent that we have not specifically addressed any of the parents' arguments, we find them to be without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION