Opinion
DOCKET NO. A-3353-11T4
02-28-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. R.B., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF N.R.B., A minor.
Joseph E. Krakora, Public Defender, attorney for appellant R.B. (Jared I. Mancinelli, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Maureen Bull, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh, Nugent and Accurso.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-92-11.
Joseph E. Krakora, Public Defender, attorney for appellant R.B. (Jared I. Mancinelli, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Maureen Bull, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Defendant R.B. appeals the Family Part order that terminated his parental rights to his son, N.R.B., who is now four years old. The order also terminated N.R.B.'s mother's parental rights, but she has not appealed. Defendant contends that the Division of Child Protection and Permanency (the Division) did not prove that termination of his parental rights was in his son's best interests, as codified in N.J.S.A. 30:4C-15.1(a)(1)-(4). The Division and the Law Guardian oppose defendant's appeal. Having considered defendant's arguments in light of the record and controlling law, we affirm.
On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, and includes the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
I.
The Division became involved with N.R.B. on the day he was born and removed him from his mother's custody before he was discharged from the hospital. His mother had abused drugs during her pregnancy. When N.R.B. was born he tested positive for cocaine, opiates, and methadone. The drugs were not the only potential threat to his health, however, because his mother had a history of syphilis and had also tested positive for hepatitis C.
Hospital personnel cared for N.R.B. until his discharge on February 18, 2010, in stable but fragile condition. During N.R.B.'s hospitalization, the Division filed a protective services action against his parents due to his mother's substance abuse, her inability to find stable housing, and defendant's refusal to acknowledge paternity. Although the mother had identified defendant as N.R.B.'s father, he had neither admitted paternity nor taken a paternity test. Consequently, at the time the Division obtained custody of N.R.B., his health was in a precarious state, he had no parent who was both able and willing to care for him, and he had no safe home to go to.
The situation concerning N.R.B.'s parents did not change significantly between the Division's filing of the protective services complaint in February 2010 and its dismissal of that action in February 2011. During the intervening year, though the Division planned to reunite N.R.B. and his mother, his mother was in and out of touch with the Division, in and out of jail, and hardly in touch with her son. She missed most of the supervised visits with her child, never secured a permanent residence, and proved incapable of overcoming her addiction. In short, she demonstrated that she was unable to provide a safe and secure environment for any child, let alone a medically fragile child.
During the same year, defendant demonstrated to the Division that he had no interest in caring for N.R.B. N.R.B.'s mother had identified defendant as the father while N.R.B. was still in the hospital. On February 1, 2010, when a Division investigator telephoned defendant and informed him of the mother's assertion, defendant questioned whether he was in fact N.R.B.'s father. He asked if he could take a paternity test and agreed to meet with the investigator two days later. The investigator scheduled the appointment, but defendant did not appear. Defendant not only refused to take a paternity test at that time, he delayed doing so for more than a year.
After failing to meet with the Division investigator in February 2010, defendant avoided both the Division and the protective services litigation. Defendant knew the Division was attempting to contact him. In May 2010, he wrote the following to the caseworker: "Are you attempting or reaching out to contact me concerning the social behavior of a 'Strumpet' who have [sic] been indulging in promiscuous sexual relations with different men and have [sic] been arrested on numerous occasions for prostitution[.]" Yet, he appeared at none of the court hearings that took place during the protective services litigation and complied with none of the orders that required him to take a paternity test.
In December 2010, faced with a mother who was incapable and a father who was unwilling to care for their medically fragile child, the Division asked the court to approve its plan for termination of parental rights followed by adoption. Following a hearing, the court approved the plan and entered a permanency order. In the order, the court noted that defendant had not appeared at the hearing. The court further noted that defendant "was mailed the . . . Complaint and the caseworker spoke to him on the telephone, but he denies paternity and refuses to cooperate with the Division." A month later, on January 11, 2011, the Division filed its guardianship action.
Meanwhile, N.R.B. remained with a resource parent from the time he was discharged from the hospital until November 16, 2010, when he was placed in the care and custody of his maternal aunt. The child remained with his maternal aunt until the end of January 2011, when she requested that he be removed. She could no longer care for him due to financial and personal difficulties she was having.
After the Division removed N.R.B. from his maternal aunt's care, it placed him in the care of his foster parents, with whom he has since remained, and who are committed unconditionally to adopting him. According to the foster parents, N.R.B. has chronic respiratory problems and "when he gets a cold, he gets really sick." N.R.B. must use a nebulizer and take medications with a nebulizer. He frequently requires visits with a specialist and they often have to take him to the hospital. N.R.B. also requires therapy six times each week for his developmental delays.
Thus, before defendant participated in any proceeding involving his son, his son's mother had demonstrated she was incapable of caring for him, the Division had filed a plan for termination of parental rights followed by adoption, and N.R.B. had been placed with foster parents who cared for his many medical needs and who had committed to adopting him. Defendant finally appeared in court for the first time at a case management review hearing on February 7, 2011. In anticipation of his first court appearance, defendant had written to the court and denied that he was N.R.B.'s father. When he appeared in court, he finally agreed to be tested for paternity.
By the next court hearing on February 28, 2011, defendant's position had changed. Although the Division had not completed defendant's paternity test, defendant was willing to acknowledge that he was N.R.B.'s father. Defendant reaffirmed his willingness to complete a paternity test, requested visitation with his son, and agreed to undergo a psychological evaluation. Defendant also requested that N.R.B. be placed with another maternal aunt and her husband.
The paternity test, completed in March, confirmed that defendant was N.R.B.'s father. Defendant visited with his son twice each month in March, April, and May, and once in June. He also was evaluated by a psychologist, Eric Kirschner, on May 18 and August 3, 2011. In August the Division ruled out the second maternal aunt as a caretaker for N.R.B. because her husband had a criminal record and inconclusive drug screenings.
During defendant's first two supervised visits with his son, defendant held the child but required frequent suggestions as to age-appropriate toys and games to play with the one-year-old. N.R.B. would often begin to squirm, and at times cry, when defendant held him without any toys. The supervising worker discussed with defendant the developmental stages of a child, and assured him that N.R.B.'s activeness was expected for a child his age.
During the April visits defendant brought toys that were appropriate for N.R.B.'s age. Throughout the visits, however, defendant needed frequent redirection from the supervising worker and suggestions about how to engage N.R.B. in activities. Defendant also began to complain about his stamina and physical limitations caused by his physical ailments and arthritis. The worker believed that defendant would benefit from parenting skills classes and individual counseling.
Defendant attended only one of four parenting classes in May 2011. By May, the worker who supervised defendant's visits with N.R.B. noticed patterns developing with respect to defendant's interaction with N.R.B. Defendant continued to need suggestions as to engaging and bonding techniques. Although the worker had practiced such techniques with defendant, defendant continued to have difficulty carrying out those tasks. The worker observed "frequent gaps of silence during the visits." The worker became concerned that defendant lacked insight into his child's feelings. The worker also felt that defendant was continuing to have problems as far as the stamina needed to play with N.R.B., and perceived that defendant was having difficulty understanding the Division's mandates and the legal aspects of the case.
Defendant's psychological evaluation confirmed the worker's concerns. Dr. Eric Kirschner evaluated defendant by studying background information about him, administering psychological tests, and conducting a clinical interview. Following his evaluation, Dr. Kirschner reported that defendant's "profile suggested a strong sense of self-satisfaction and arrogant sense of self-worth." The doctor thought defendant "likely believes that he is a special person who deserved great admiration from others." The doctor's findings included indifference on defendant's part to the welfare of others, and a "lack[] [of] nurturing skills with a deficit in his ability to empathize or recognize a child's emotional state." According to Dr. Kirschner, "the clinical data raised questions as to the presence of psychotic thought processes, such as paranoia and delusions of grandeur." The doctor also noted that defendant "likely fe[lt] unfairly treated and may be easily provoked to anger."
Based on the psychological evaluation, Dr. Kirschner recommended that defendant continue to attend supervised visits with his son, undergo individual psychotherapy, undergo a psychiatric evaluation, and complete a parenting skills training program. The doctor diagnosed defendant with narcissistic personality disorder and anti-social personality traits.
Defendant continued to have supervised visits with his son from July through December 2011. Although defendant had completed a parenting class mid-July, his patterns of difficulty interacting with N.R.B. during the supervised visits persisted. The supervising worker did not believe that defendant truly grasped the information he was given about his son's health and development.
Defendant had improved his efforts to engage his son and to identify age-appropriate toys, but continued to need much encouragement from the supervising worker about teaching N.R.B. to use various toys and about setting boundaries for N.R.B. And though defendant "ha[d] improved with carrying out various child care duties, . . . [he] needed to be reminded during the last visit to check [N.R.B.'s] diaper before leaving, which he had done without prompting at the first two visits." The worker's concern about defendant's stamina also continued. Defendant "frequently needed to wipe the perspiration from his forehead," regularly commented on his son's high activity level, and often appeared fatigued at the end of the one-hour visits.
Defendant was also indecisive about his permanent plan for his son. In a report concerning defendant's December 2011 supervised visits, the supervising worker noted that during the December 7th visit defendant expressed an interest in terminating his parental rights. Defendant also expressed interest in N.R.B.'s foster parents being granted custody provided that defendant could visit on weekends. In contrast, during supervised visits on December 12th and 19th defendant "expressed . . . a desire for reunification."
The supervising worker was also concerned that defendant continued to "perseverate on specific issues such as his frustration with the Division, the state of the economy and reverse racial profiling." During a supervised visit with his son on December 19, defendant "expressed a belief that the Division was acting out 'reverse racial profiling' on him." The worker had to redirect defendant throughout the conversation.
On October 7, 2011, a psychiatrist, Dr. Larry E. Dumont, evaluated defendant. Based upon his review of background information and a current mental status examination of defendant, Dr. Dumont diagnosed defendant with mixed personality disorder with narcissistic and anti-social personality traits. The doctor noted that defendant had an extensive criminal history but no convictions since 2001, and an extensive history of substance abuse, mainly heroin and cocaine, but had been in remission since relapsing in 2003. Although accepting defendant's statement that he had reformed himself and become a successful businessman, the doctor reserved "grave doubts about [defendant's] ability to effectively be a parent for a young child."
Dr. Dumont noted that defendant merely shrugged off a question about what changes he needed to make in his life in order to assume full custody of N.R.B. Rather than answering the question directly, defendant "indicated that somehow one of his adult daughters would be able to be there to help with the parenting role." Dr. Dumont was concerned that "in terms of him gaining custody of [N.R.B.,] . . . [defendant] is not so much interested in being a parent as he is in acquiring a trophy." The doctor concluded that it would be in the best interests of N.R.B. if the Division considered terminating defendant's parental rights.
Dr. Dumont was particularly disturbed about defendant's "significant level of narcissism." The doctor felt that to defendant, being a parent "was more about him than it was about his son." The doctor felt that defendant showed "no insight at all into how assuming custody of an infant child would be a life-altering course for him."
Dr. Kirschner, who had evaluated defendant psychologically in May and August 2011, conducted bonding evaluations of N.R.B. with defendant and with N.R.B.'s foster parents. Based on his observations during the bonding evaluations, Dr. Kirschner concluded that N.R.B.'s behavior with defendant "was not consistent with that of a parent-child bond or attachment relationship." Rather, the doctor's observation "indicated that [N.R.B.] had not differentiated [defendant] as an attachment figure." The doctor concluded that N.R.B. "would not be expected to experience psychological harm or trauma if his relationship with [defendant] was to be severed."
In contrast, N.R.B.'s behavior with his foster parents was "consistent with that of a parent-child bond and attachment relationship." N.R.B. "appeared to have differentiated his foster parents as attachment figures. Comparison of [N.R.B.'s] behavior between the two observations indicated that his emotional bond and attachment with his foster parents is much greater than that with his biological father."
The doctor noted that "clinical literature suggests children typically develop the cognitive and emotional maturity to internalize an attachment relationship between the ages of . . . [two and two and one-half] years old." The doctor further opined that once this process has occurred, "a child would be expected to experience significant and enduring harm should such an attachment be severed."
The doctor concluded that N.R.B. "would be expected to experience psychological harm or trauma as manifested by feelings of loss, sadness and anxiety, as well as behavioral and developmental regression if he was to be removed from the care of his current foster parents, who are the only caregivers he has ever known." The doctor further concluded that the absence of a bond or relationship between defendant and his son would not allow mitigation of the harm that would occur to N.R.B. if he were separated from his foster parents. In short, the doctor concluded that "it is in [N.R.B.'s] best interests to become legally free for adoption by his current foster parents so as to attain permanency."
In a permanency order filed on December 2, 2011, the court disapproved the Division's goal of adoption, determining that the Division had failed to establish by a preponderance of the evidence that adoption continued to be an appropriate goal. The court noted in its order, among other things, that defendant had completed a parenting skills training program and that there was not yet available any recommendation from the psychiatric evaluation.
Following another permanency hearing the next month, the court issued an order on January 11, 2012, approving the Division's permanent plan for adoption. The court noted, with respect to defendant:
The Division's concerns about [defendant's] ability to parent [N.R.B.] persist. Due to the delay in [defendant's] participation in the FG case, [defendant] has only started psychotherapy recently. The Division is awaiting reports. Visitation reports consistently indicate that [defendant] has trouble interacting with [N.R.B.] — playing with him, re-directing him and feeding him. The Division's uncontested evaluations conclude that [defendant] is narcissistic and does not consider the impact [N.R.B.]
will have on his life. Each report indicates that he cannot parent and will not be able to in the foreseeable future. Further, the Division's bonding evaluation concludes that removing [N.R.B.] from his current placement would cause severe harm.
The guardianship trial took place the following month. Through the testimony of a caseworker, N.R.B.'s foster parents, and Dr. Kirschner, and through more than one hundred exhibits that were introduced into evidence, the Division established the facts that we have recounted above. Defendant did not present an expert to counter the expert opinions presented by the Division.
Defendant testified on his own behalf. He told the court that he had visited N.R.B. in both the hospital and in the resource home. After paternity testing established that he was the father, defendant sought services and permanent housing. He had located and obtained an apartment that was now fully prepared for N.R.B. Defendant's flexible working hours would permit him to care for N.R.B. for most of the day and night, and defendant had also located daycare centers within minutes of his home.
According to defendant, his daughter was available to help him with N.R.B., as was his niece, who was particularly capable of assisting with the needs of a medically fragile child because she worked with autistic children. His mother, who had worked with autistic children herself, was also available to help him with N.R.B.'s needs. Defendant denied that he was either narcissistic or self-centered, felt he could take care of N.R.B.'s needs, and also felt that it was in N.R.B.'s best interests to be with him.
After evaluating the parties' proofs, the court delivered an oral opinion on February 8, 2012, in which it concluded that the Division had proved the statutory criteria for terminating defendant's parental rights by clear and convincing evidence. The court entered a memorializing order from which defendant appealed.
II.
Defendant presents for our consideration the following arguments:
I. DYFS DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THE REQUIREMENTS OF N.J.S.A. 30:4C-15 AND N.J.S.A. 30:4C-15.1 AND THEREFORE TERMINATION OF PARENTAL RIGHTS WAS IMPROPER.
A. DCPP FAILED TO PROVE PRONG 1 BY CLEAR AND CONVINCING EVIDENCE, AS R.B. HAD NEVER CAUSED PHYSICAL OR PSYCHOLOGICAL HARM TO N.R.B., AND THERE WAS NO EVIDENCE THAT R.B.'S CONTINUED PARENTAL RELATIONSHIP WOULD IN ANY WAY ENDANGER N.R.B.'S SAFETY, HEALTH OR WELFARE.
B. DCPP FAILED TO PROVE PRONG 2 BY CLEAR AND CONVINCING EVIDENCE, AS R.B. WAS NEVER SUBSTANTIATED FOR ANY HARM TO
N.R.B. AND THUS THERE IS NO HARM TO REMEDIATE.II. R.B. WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL, BECAUSE HIS ATTORNEY FAILED TO MOVE TO HAVE DCPP PAY THE COST OF AN EXPERT PSYCHOLOGICAL WITNESS TO TESTIFY IN HIS FAVOR.
C. DCPP FAILED TO PROVE PRONG 4 OF THE BEST INTERESTS TEST BY CLEAR AND CONVINCING EVIDENCE AS IT DID NOT DEMONSTRATE THAT TERMINATION OF R.B.'S PARENTAL RIGHTS WOULD NOT DO MORE THAN GOOD.
A. THE DEFENSE'S FAILURE TO MOVE TO HAVE DCPP PAY THE COST OF AN EXPERT PSYCHOLOGICAL WITNESS TO REBUT THE TESTIMONY OF DCPP'S EXPERT WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
Parents have a constitutionally-protected right to raise their children. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165-66 (2010); N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 477 (App. Div. 2012). "Indeed, it is among the most fundamental of all rights." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012 ). Both "'[t]he Federal and State Constitutions protect the inviolability of the family unit.'" L.J.D., supra, 428 N.J. Super. at 477 (quoting In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 382 (App. Div. 1998), vacated on other grounds, 163 N.J. 58 (2000)).
A parent's right to raise a child, however, is not absolute. It is "tempered by the State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." F.M., supra, 211 N.J. at 447. When discharging its parens patriae responsibility to protect children, the State must utilize its "weapon of last resort in the arsenal of state power" — termination of parental rights — "with caution and care, and only in those circumstances in which proof of parental unfitness is clear." Ibid.
Terminating parental rights must be in the best interests of the child or children. N.J.S.A. 30:4C-15.1(a); F.M., supra, 211 N.J. at 447-48. The "best interests" standard is codified in N.J.S.A. 30:4C-15.1(a), which requires the State to establish the following four elements in order to terminate one's parental rights:
(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.
These four elements "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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The State must establish the statutory criteria by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004).
When we review a trial court's findings of fact and application of the statutory criteria to those findings, the scope of our review is limited. F.M., supra, 211 N.J. at 448-49. We "must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court." P.P., supra, 180 N.J. at 511. We may not disturb the trial court's findings "'unless they are so wholly unsupportable as to result in a denial of justice.'" Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)).
As a general rule, we should also defer to the court's credibility determinations. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Such deference is appropriate because the trial court has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). The trial court's legal conclusions, however, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
With the foregoing principles in mind, we turn to defendant's arguments.
A.
The first of the statutory criteria requires the Division to prove by clear and convincing evidence 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). The Division can clearly and convincingly prove the first statutory criteria in the absence of physical abuse or neglect.
Our Supreme Court has recognized that "[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." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999); see also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986). "Serious 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).
Here, the court's determination that the Division clearly and convincingly proved the first statutory criterion is amply supported by credible evidence. The court determined that in the year following N.R.B.'s birth defendant "persistently fail[ed] to perform any parenting functions to provide nurture, care and support." The court rejected defendant's testimony that he was involved with N.R.B., to some extent, during that first year. This credibility determination was supported by considerable evidence that defendant went to great lengths to avoid paternity testing, and also avoided the Division's efforts to involve him in the protective services case. During that first year, N.R.B.'s safety, health, and development were jeopardized not only by his mother's drug addiction and inability to secure stable housing, but also by the absence of her nurturing and care. Defendant's refusal to become involved with N.R.B. exacerbated the harm confronting N.R.B. By refusing to become involved with N.R.B., defendant not only deprived his son of a father's nurture and support, but essentially left N.R.B. without any parent who was willing and able to care for him.
The trial court also relied upon the psychological and psychiatric evaluations of defendant, which demonstrated and underscored his continuing inability to care for N.R.B.'s medical, emotional, and developmental needs. The court's conclusion that defendant lacked nurturing skills was, as the court noted, established not only by the psychological and psychiatric evaluations, but also by the patterns of conduct defendant exhibited during his supervised visits with N.R.B.
Defendant argues that he was not responsible for N.R.B.'s condition at birth, and that once he learned that he was N.R.B.'s father he engaged in services in order to provide N.R.B. with a stable home environment. This argument disregards defendant's resistance for a year to the Division's attempt to either establish that he was N.R.B.'s father, or rule him out as the father. The Division contacted defendant before N.R.B. left the hospital, and defendant requested a paternity test. He then avoided taking that test for nearly a year.
Defendant characterizes as "purely speculative in nature . . . the uncontested reports of a psychiatrist and psychologist, and the concerns of a [Division] caseworker." Although defendant concedes that the expert testimony was uncontested, he points out that he "made it clear that he understands the child's medical needs and stands ready to provide for them." This argument requires little discussion. The professionals were competent to render their opinions. In fact, defendant stipulated to their expertise. The court's decision to accept their opinions, and rely upon them in part as a basis for its decision, was well within its fact-finding function and prerogative.
B.
Defendant next challenges the court's finding that the Division clearly and convincingly established the second statutory criterion. "The second prong, in many ways, addresses considerations touched on in prong one." F.M., supra, 211 N.J. at 451. Prong two requires a trial court to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" their child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid.
This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care, . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. Such harm includes "evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2).
In the case before us, the trial court concluded that defendant "is still unable and not capable of providing care to such a young child with such significant needs." Although the court acknowledged that defendant eventually completed a parenting program and had recently undergone psychotherapy, the court questioned defendant's motives for belatedly seeking to obtain custody of N.R.B. The court determined that, in any event, defendant was incapable of providing care to a young child with such significant needs.
The court's factual determinations are supported by substantial, if not overwhelming, evidence. The psychiatrist and psychologist who evaluated defendant diagnosed him as narcissistic. Both questioned his ability to understand either the medical or emotional needs of N.R.B., and one suggested that defendant sought custody of N.R.B. as a trophy. The experts believed defendant had no significant insight into the demands N.R.B. would place upon him or the consequent lifestyle change.
Significantly, the experts' opinions substantiated the patterns of behavior that defendant exhibited during his visits with N.R.B., as documented by the supervising caseworker. Despite the Division providing significant services, including parenting classes, defendant made little improvement in his interactions and bonding with N.R.B.
Defendant asserts that in finding that the Division had established the second statutory criterion, the court unduly focused "on his delay in establishing paternity and participating in services, as well as his alleged difficulties during visitation with N.R.B." Although the court noted in its opinion both defendant's delay in becoming involved with his son and his deficits during the parenting classes, it had already detailed the experts' findings and conclusions. As we have stated, those findings and conclusions, when found credible, more than amply supported the court's determination that defendant was incapable of either providing a safe and stable home or eliminating potential harm to his child if the child were placed in his care and custody. The four statutory elements are not independent of each other, but rather are interrelated and overlapping. K.H.O., supra, 161 N.J. at 348. The evidence, considered in its entirety, clearly supported the court's determination that the Division had proved the second statutory element.
C.
Defendant next challenges the trial court's determination that terminating his parental rights would not do more harm than good to his son. This fourth statutory prong "is a 'fail-safe' inquiry guarding against an inappropriate or premature termination of parental rights." F.M., supra, 211 N.J. at 453. "[T]o satisfy the fourth prong, the State should offer testimony of a well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parents and the foster parents." M.M., supra, 189 N.J. at 281 (citation and internal quotation marks omitted). "The question to be addressed under that prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the child's] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. Here, the Division presented precisely such evidence, the court analyzed it, and the court concluded from that and other evidence that the Division had clearly and convincingly established the fourth statutory prong.
In concluding that termination of defendant's parental rights would not cause more harm than good to his son, the court relied on the totality of the evidence, including the psychological and psychiatric evaluations, defendant's conduct during his visits with N.R.B., and the bonding evaluations. The court noted Dr. Kirschner's conclusion that N.R.B. "has not developed any sort of parental relationship or even identifies with [defendant] as a comfort, as a someone to turn to, as someone to be involved with." In contrast, Dr. Kirschner observed "that the child interacts with [his foster parents] and would suffer some harm if . . . separated from them." Although acknowledging Dr. Kirschner's testimony that it could not "be said that enduring harm would come from the separation [of N.R.B.] from the foster parents," the court concluded that any harm arising from terminating defendant's parental rights would not outweigh the benefits to N.R.B. of permanent placement with his foster parents.
The court's conclusions are supported by ample evidence in the record. Defendant's narcissism as well as his parenting deficits, as evidenced during his supervised visits, severely limit both his ability to comprehend the extent of N.R.B.'s medical needs and to bond with his son. The trial court's conclusion that defendant was incapable of meeting the medical and emotional needs of his son, and was incapable of being a parent to his son, was supported by virtually all of the evidence that was produced at the guardianship trial, with the exception of defendant's testimony, which the court did not find credible. The court "consider[ed] the child's age, [his] overall health and development, and the realistic likelihood that . . . [defendant would not] be capable of caring for the child in the near future." K.H.O., supra, 161 N.J. at 357. Accordingly, we affirm the judgment terminating defendant's parental rights to N.R.B.
III.
In his final argument, defendant contends that he was denied effective assistance of counsel at the guardianship trial because his attorney did not seek funds from the Division to retain the services of an expert. Defendant presumably sought the services of an expert psychologist or psychiatrist to rebut the expert evidence presented by the Division.
In a guardianship action, "the performance of [the parent's] counsel must be effective." N.J. Div. of Youth & Family. Servs. v. B.R., 192 N.J. 301, 306 (2007). In order to establish that counsel was ineffective, the parent making that claim must establish two elements: "(1) counsel's performance must be objectively deficient — i.e., it must fall outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the defense — i.e., there must be 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 307 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984)); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard in New Jersey).
To establish the elements of an ineffective-assistance-of-counsel claim,
appellate counsel must provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the lawyer's performance not been deficient. That will include the requirement of an evidentiary proffer in appropriate cases. For example, if the failure to produce expert or lay witnesses is claimed, appellant will be required to supply certifications from such witnesses regarding the substance of the omitted evidence along with arguments regarding its relevance.
[B.R., supra, 192 N.J. at 311.]
Here, defendant has failed to supply certifications from any expert regarding the substance of the omitted evidence. Consequently, he has failed to establish the elements of an ineffective-assistance-of-counsel claim. See N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 643 (App. Div. 2010) (rejecting the defendant's ineffective-assistance-of-counsel claim in part because he "fail[ed] to provide certifications . . . relating the substance of the omitted testimony" from the expert witnesses his trial counsel never procured).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION