Opinion
DOCKET NO. A-4637-12T3
03-04-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. E.F., Defendant-Appellant. IN THE MATTER OF R.J.F., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter Neely Milligan, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Russell M. Smith, Jr., Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (David B. Valentin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Leone.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-27-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter Neely Milligan, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Russell M. Smith, Jr., Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (David B. Valentin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant E.F. (Father) appeals from a judgment entered by the Family Part, terminating his parental rights to R.J.F., born in March 2009. We affirm.
I.
Father and R.J.F.'s mother, J.T. (Mother), first became involved with the Division regarding N.D., Mother's daughter from a previous relationship. Mother, while pregnant with R.J.F., lived together with Father and N.D. On the morning of November 26, 2008, Father was babysitting the twenty-month-old N.D. while Mother was attending classes. Father later told police that, at around 11:00 a.m., he placed N.D. in the upstairs bathtub after discovering she had soiled herself. He claimed that he turned both the hot and cold water on, but, because the cold water handle was broken, the water became dangerously hot unbeknownst to him. He claimed he then left N.D. unattended in the bathtub with the water running for several minutes, and did not realize N.D. had been injured until he heard her screaming. Father pulled her out of the tub and her skin was peeling off. He wrapped her in a blanket, but, despite living only "four or five blocks" away from a hospital, took no further action. He explained that he did not take N.D. to the hospital because Mother was away and had N.D.'s "medical cards."
To explain why he did not hear N.D. screaming sooner, Father told the investigating police officer that he ran downstairs to answer the door for his parole officer. Father later told Mother that he was tending to the laundry. At trial, Father indicated he was doing dishes. The judge noted that "[w]hen dad reports the history, he reports it in three different ways."
Mother and K.L., N.D.'s maternal grandmother (Grandmother), brought N.D. to the emergency room at Underwood Memorial Hospital at 2:03 p.m., approximately three hours after N.D. was injured. The treating physician diagnosed N.D. as having second-degree burns on her back, thighs, right arm, buttocks, perineum, stomach, and face.
The initial diagnosis indicated N.D. had second-degree burns covering 40 to 70% of her body. A later diagnosis indicated the burns covered 30% of her body.
At the hospital, Mother initially attempted to take the blame for N.D.'s injuries, and then later explained to the treating physician that Father had given N.D. a bath in water that was too hot. According to the Division's reports, Grandmother told Mother to "tell the truth," and Mother responded by telling her to "shut the hell up."
The hospital, concerned about the suspicious nature of Mother and Grandmother's interactions, the nature of N.D.'s injuries, and an old fracture in one of N.D.'s legs, notified the police and the Division. N.D. was placed in a temporary foster home for medically fragile children. The Division referred Mother and Father for parental fitness evaluations, as well as parenting classes and counseling, which Father attended until his arrest.
A medical expert, in consultation with the treating physicians, concluded that Father's explanation of how N.D. was burned was "illogical" given the location of N.D.'s burns. That expert found "[t]he pattern and severity of burns to be consistent with child abuse," because the burn pattern indicated N.D. was "submerged in hot water," and there was no indication that N.D. attempted to escape from the tub while it was filling up with hot water.
Father was arrested on February 18, 2009. He was charged with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He pleaded guilty, and, on April 30, 2010, he was sentenced to five years in prison with 436 days of jail credit.
R.J.F. was born approximately one month after Father was arrested. Although N.D. was ultimately placed with her biological father, R.J.F. was left in Mother's care. On January 5, 2010, the Division received a referral reporting that R.J.F. was not receiving proper medical treatment. The Division caseworker visited Mother's home and observed that the home was dirty and in part filthy, and R.J.F.'s crib, swing, clothes, and diapers were dirty, wet and soiled with feces. Because of the deplorable condition of the home and R.J.F.'s medical neglect, the Division conducted an emergency removal of R.J.F. and filed a verified complaint for custody. The judge granted the Division temporary custody of R.J.F. pending a fact-finding hearing. R.J.F. was eventually placed with Grandmother.
R.J.F., then nine-months old, was diagnosed with a double ear infection, undescended testicles, and cradle cap; was behind on his immunizations; and had not seen the pediatrician for a well-baby visit.
Mother surrendered her parental rights to R.J.F., conditioned on R.J.F.'s adoption by Grandmother. The judge approved the Division's plan to terminate Father's parental rights. Counsel for the Division indicated she would be filing a motion to be relieved of providing reasonable efforts based on Father's incarceration for endangering the welfare of a child. Father's counsel objected, and the Division ultimately did not file a motion to be relieved of reasonable efforts.
Meanwhile, the Division arranged for Dr. James Loving to perform psychological and bonding evaluations of Father, Grandmother, and R.J.F. Dr. Loving attempted to perform his evaluation of Father at Bayside Correctional Facility (Bayside), but was denied entry by Bayside. Dr. Loving then conducted a bonding evaluation of Grandmother and R.J.F., and determined that R.J.F. had a "strong, important, and emotional attachment to" Grandmother, and that R.J.F. "would be placed at high risk for long-term emotional harm if he were to be removed from [Grandmother's] home in the foreseeable future."
On or about May 29, 2012, Father was released from Bayside, and moved into a halfway house. Upon his release, Father sought psychiatric services through South Jersey Behavioral Resource Center, and medical services from Project Hope.
Dr. Loving conducted a psychological and bonding evaluation of Father, after which he concluded that Father "is not ready to serve as a safe, stable, [and] effective parent now or in the foreseeable future." Father then arranged for a psychological and bonding evaluation by Dr. Kenneth Goldberg. Dr. Goldberg opined that it was unlikely that Father would again have the "flawed judgment that caused [N.D.] to get burned," and that Father's relationship with R.J.F. was beneficial to R.J.F. However, Dr. Goldberg also opined that Father "presents as emotionally and mentally disturbed," that "it is highly questionable how [Father] will do raising [R.J.F.] alone," and that it is currently in R.J.F.'s "best interests" to remain with Grandmother.
After a five-day guardianship trial, the judge found the Division clearly and convincingly proved that terminating Father's parental rights was in R.J.F.'s best interests. On April 29, 2013, the judge entered an order terminating Father's parental rights and granting guardianship of R.J.F. to Grandmother, to be followed by adoption. The judge entered an amended order on May 13, 2013. Father appeals.
II.
"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, this protection "is tempered by the State's parens patriae responsibility to protect the welfare of children." Id. at 347; see N.J.S.A. 30:4C-1(a).
Under N.J.S.A. 30:4C-15.1(a), the Division must prove by clear and convincing evidence that termination is in the best interest of the child. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012); see N.J.S.A. 30:4C-15(c). The Division must show that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;"Importantly, those four prongs are not 'discrete and separate,' but 'relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007) (quoting K.H.O., supra, 161 N.J. at 348).
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a).]
"Appellate review of a trial court's decision to terminate parental rights is limited[.]" In re Guardianship of J.N.H., 179 N.J. 440, 479 (2002). "Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record." F.M., supra, 211 N.J. at 448 (citations and quotation marks omitted). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." E.P., supra, 196 N.J. at 104 (citation omitted). In addition, "[b]ecause of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding." N.J. Div. of Youth & Family Services v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice." F.M., supra, 211 N.J. at 448 (citations and quotation marks omitted). We must hew to that standard of review.
III.
The first two prongs, N.J.S.A. 30:4C-15.1(a)(1) and (9), are related "components of the harm requirement," and "evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." In re Guardianship of DMH, 161 N.J. 365, 379 (1999). Because here, the first two prongs of N.J.S.A. 30:4C-15.1(a) are factually intertwined, we "address prongs one and two of that test" together. E.P., supra, 196 N.J. at 104.
These two prongs require the family court to root out harm "that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O. supra, 161 N.J. at 352. The court must also consider "whether the parent can 'cease causing [his or her] child harm' and become fit to assume the parental role within time to meet the child's needs." E.g., N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 479 (App. Div. 2012) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).
Father argues that he never harmed R.J.F. because he has never had custody of R.J.F., who was born while Father was in prison, and because his visitation with R.J.F. has been positive. However, the evidence shows that a parental relationship with Father poses a risk of future harm to R.J.F., and that Father has harmed R.J.F. through his extended absence.
First, the judge properly considered whether R.J.F.'s "safety, health or development" will "be endangered by the parental relationship" if he is placed in Father's care. N.J.S.A. 30:4C-15.1(a)(1); see N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604 (1986). The Supreme Court has stated that, where a child was never in the parent's care, "[a]lthough there was no direct evidence of injury to [the child], it would make no sense to wait until [the child] had been injured to decide the issue." A.W., supra, 103 N.J. at 616 n.14. Moreover, the Division "does not have to wait 'until a child is actually irreparably impaired by parental inattention or neglect.'" F.M., supra, 911 N.J. at 449 (quoting DMH, supra, 161 N.J. at 383).
In finding that Father poses "a future risk of child maltreatment," the judge properly considered Father's conduct that led to the scalding of N.D. Dr. Loving, whom the judge found to be credible, stated that Father's maltreatment of N.D. demonstrated "not just a specific lack of parenting knowledge but also incredibly egregious decision-making more generally." This conclusion is supported not just by Father's poor judgment in failing to check the temperature of the bathwater and leaving N.D. unattended in the bath, but also by his decision to do nothing for three hours after discovering N.D. had been injured. Dr. Loving was also concerned that Father "appears to downplay the severity of the incident."
Although she found no evidence of sadism or maliciousness by Father, the judge was concerned that the burn pattern on N.D. did not "really line up" with Father's explanation. Moreover, the Child Abuse Potential Inventory (CAPI) test, administered by Dr. Loving, "suggests [Father] remains at risk for child maltreatment, in that he possesses a number of risk factors that are seen in physical child abuse perpetrators." It was proper for the judge to consider Father's conduct that caused serious harm to N.D., as it called into question Father's ability to conduct himself "in a way that secure[s R.J.F.'s] safety." G.L., supra, 191 N.J. at 608.
Second, as the judge found, Father did harm R.J.F. by being incarcerated for most of R.J.F.'s life, and by being at a high risk of recidivism, which poses a risk of similar future harm to R.J.F. A parent's incarceration is "unquestionably relevant to the determination of whether the parental relationship should be terminated." In re Adoption of L.A.S., 134 N.J. 127, 136-37 (1993). The absence of a parent from a child's life "for an extended period of time is in itself a harm that endangers the health and development of the child." DMH, supra, 161 N.J. at 379.
Contrary to Father's argument, the judge did not merely presume his incarceration and risk of recidivism would harm R.J.F. Father has been incarcerated for the first three years of R.J.F.'s life. In Father's absence, R.J.F. lived in "deplorable" conditions and his medical needs were neglected until the Division intervened. Father's extended absence from R.J.F.'s life also served to "frustrate [the] nurturing and the development of emotional bonds," and was therefore "a 'substantial obstacle to achieving permanency, security, and stability in [R.J.F.'s] life.'" N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006) (quoting L.A.S., supra, 134 N.J. at 139).
The judge also noted that Father's potential to recidivate poses a risk that R.J.F. once again would "not hav[e] his dad in his life." She did not find "as much risk of recidivism as Dr. Loving would say," but found the risk to be more than "negligible." Father argues that this risk is baseless because he was not incarcerated again after his release from Bayside. However, as the judge noted, Father has an extensive criminal history, which includes convictions for robbery, burglary, receiving stolen property, resisting arrest, possession of controlled dangerous substances, drinking in public, and loitering. The judge reasoned that, unlike substance abuse offenses where the criminal has "been clean for two years," or offenses caused by "some type of psychiatric disability that's been handled with much better medication," these offenses indicate a pattern of antisocial behavior that is likely to continue.
Additionally, Father's "unabated" substance abuse problem "causes continuing harm by depriving [R.J.F.] of necessary stability and permanency." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 245 (App. Div. 2010), certif. denied, 2 05 N.J. 519 (2011). Father claimed to have stopped using marijuana in 2003, but tested positive for marijuana after his release on parole. Father claimed that positive result was due to an accident, but then later tested positive during the guardianship trial. He then admitted that he continued to smoke marijuana "maybe once every couple of weeks." As Dr. Loving observed, Father's use of marijuana during the trial demonstrates that he "is either unable or unwilling to remain drug-free, even under conditions when he should be incredibly motivated to do so." Thus, there is sufficient evidence to support Dr. Loving's opinion that N.D.'s injuries are indicative of "more than just a specific lack of parenting knowledge."
The judge properly considered Father's incarceration and risk of recidivism, together with Father's previous harming of N.D., as factors in her overall analysis. This evidence, along with Father's continued drug use, is sufficient to clearly and convincingly prove prong one.
We must next consider whether "[t]he 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).
There was sufficient evidence in the record to support the judge's finding that Father is unable or unwilling to eliminate the harm to R.J.F. As set forth above, Dr. Loving had serious concerns about Father's potential for future child mistreatment, Father's substance abuse, and Father's risk of recidivism. Further, Father had been unable to establish a stable home, living in four locations in the nine months since his release.
The judge had to consider "whether delay in permanency will cause further harm and whether the child has bonded to his or her foster parents to the extent that separation from them would in itself cause serious and enduring emotional or psychological harm to the child." I.S., supra, 202 N.J. at 167 (citations and quotation marks omitted). The judge here found that R.J.F. "needs permanency," has developed a "strong, important, and positive emotional attachment" with Grandmother, and by all accounts "is being raised well" by Grandmother, who had cared for him for over two years. Both experts conducted bonding evaluations, and both found R.J.F. had developed an important and positive bond with Grandmother. While Dr. Goldberg opined that it would be in R.J.F.'s interests to maintain a relationship with Father, Dr. Loving found that R.J.F. "will be harmed by being in limbo." The judge agreed with Dr. Loving. Because Dr. Loving's opinion was adequately supported by the facts, the judge properly relied upon it in rendering her decision.
Moreover, neither expert thought Father could parent on his own. Father's marijuana use during the trial, his dissembling regarding that use, and his unstable housing situation, all support that conclusion. Thus, the judge properly concluded that Father had harmed R.J.F. and posed a substantial risk of future harm, and that Father could not remediate that harm. Accordingly, the judge correctly found the Division had satisfied N.J.S.A. 30:4C-15.1(a)(1) and (2).
IV.
Next, we consider whether 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." N.J.S.A. 30:4C-15.1(a)(3); see also K.H.O., supra, 161 N.J. at 354. The Division's efforts are evaluated "with reference to the circumstances of the individual case." DMH, supra, 161 N.J. at 390. "Services that may address one family's needs will not be helpful to another." Ibid. Whether or not the services were "reasonable" depends on whether such services have a "'realistic potential to succeed.'" N.J. Div. of Youth & Family Servs. v. J.Y., 359 N.J. Super. 945, 967 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3). "'The diligence of [the Division's] efforts on behalf of a parent is not measured by' whether those efforts were successful." F.M., supra, 211 N.J. at 459 (quoting DMH, supra, 161 N.J. at 393).
The Division did make reasonable efforts to provide services to Father. The Division provided supervised visitation of R.J.F. with Father in prison and after Father's release, and provided bus passes. Prior to Father's arrest and incarceration for endangering the welfare of a child, the Division provided parenting classes and psychological evaluations for Father and Mother. Father notes that the psychologist who performed that psychological evaluation recommended Father undergo a psychiatric evaluation and "have counseling to improve his coping skills and deal with his feelings of guilt" regarding N.D. However, Father's arrest interrupted the Division's services, and the judge correctly found that the Division could not be expected to have provided other services to Father while he was in prison. Indeed, when the Division arranged for Dr. Loving to do a psychological and bonding evaluation with Father while Father was incarcerated at Bayside, Bayside would not allow it. This court has rejected similar challenges because of "'"the difficulty and likely futility of providing services to a person in custody."'" T.S., supra, 417 N.J. Super. at 242 (citations omitted).
Father complains that the Division made no effort to provide services in the nine months between his parole and the guardianship trial. The Division caseworker testified that because Father had engaged in classes and programs while in prison, and because these programs were of the same type of services that the Division might have offered, the Division did not offer duplicative services. While in prison, Father completed parenting classes and academic courses, and attended an anger management course. Father testified that, after he was released from prison, he sought out his own mental health counseling at South Jersey Behavioral Resource Center, and was receiving medical assistance from Project Hope. The caseworker testified that it was difficult to locate Father because he had four different addresses since his release from prison, and that he would not clearly identify where he lived. The caseworker further testified that Father never indicated that he wanted other services beyond the visitation and bus passes the Division was providing to him.
Father was removed from the anger management program before completing it because of an altercation with other prisoners. He was later found to be not at fault for that altercation.
We emphasize that the plain language of N.J.S.A. 30:4C-15.1(a)(3) imposes upon the Division an affirmative obligation to make reasonable efforts to provide services before seeking termination of parental rights. However, the Division concluded that Father had obtained in prison the services the Division believed were needed. Father did not request housing assistance, or admit to having a drug problem. Under these circumstances, the Division could not reasonably have been expected to provide additional services without some indication from Father as to what services he believed were necessary. Indeed, even on appeal defendant does not identify what services the Division should have provided.
Furthermore, in determining the reasonableness of the Division's efforts, we must consider that R.J.F. had already been in foster care for over two years before Father was released from prison, creating a real need for permanence for the child. Thus, the judge properly conducted the guardianship trial nine months after Father's release. Defendant has failed to show any services which would have altered the outcome in that time frame.
V.
The fourth prong acts "as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609. Under that prong, the court must address "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [his] natural parents than from permanent disruption of [his] relationship with [his] foster parent[]." I.S., supra, 202 N.J. at 181 (citations and quotation marks omitted). "'[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.'" F.M., supra. 211 N.J. at 453 (citations omitted).
Here, well-qualified experts for the State and Father conducted bonding evaluations with both Father and Grandmother. Dr. Loving opined that Father has "a mostly positive but fairly weak attachment" to R.J.F., and that R.J.F. "is not at risk of suffering harm from the loss of that relationship." By contrast, Dr. Loving opined that R.J.F. has "a strong, important, and positive emotional attachment to" Grandmother, that R.J.F. sees Grandmother "as being his primary and central parent figure," and that "if he were to be removed from [G]randmother, that outcome would place [R.J.F.] at high risk for serious and enduring harm."
Dr. Goldberg found that R.J.F. has "a very good connection" with Grandmother, and found that R.J.F. "is best served by insuring a permanent connection between [Grandmother] and him." He also opined, however, that Father "offer[s] something that [R.J.F.] is unlikely to get otherwise, [a] very unique type of interaction that you see between fathers and sons that [is] very valuable." In Dr. Goldberg's view, R.J.F. would, over time, "fully view" Father as his central parenting figure. Dr. Goldberg testified that he could not opine to a reasonable degree of psychological certainty whether it would not do more harm than good to sever Father's parental rights, although he disagreed that Dr. Loving could find within a reasonable degree of psychological certainty that termination would not do more harm than good.
Here Dr. Loving's testimony was sufficient to establish the fourth prong. "There is ample evidentiary basis for crediting the expert's conclusion[s]." K.H.O., supra, 161 N.J. at 356. It is undisputed that R.J.F. has formed a meaningful bond with Grandmother, and that Grandmother has provided for R.J.F.'s needs. By contrast, Father's incarceration prevented him from meaningfully bonding with R.J.F., and required Grandmother to take on the role of R.J.F.'s parent. Even though Father was capable "of maintaining a limited benign relationship with" R.J.F. in visitation, Father's drug problem and housing instability suggest that Father is unable to "strengthen or extend that bond and function as a parent" in the foreseeable future. Ibid. Thus, "the evidence clearly and convincingly establishes that terminating the parental rights of [Father] will not do more harm than good to" R.J.F. Id. at 361.
R.J.F. has been diagnosed with autism spectrum disorder, speech delay, and carnitine deficiency, which has necessitated medication and regular medical treatment.
Father also argues the judge failed to set forth her analysis as to prongs three and four, as required by Rule 1:7-4(a). On the contrary, the judge found that the Division could not be faulted for its inability to provide services to Father while he was incarcerated, noted Father had availed himself of programs while in prison, and found he "really didn't present himself" as wanting more services. She further noted that, after two years in prison, Father "would have had to hop to with regard to services and he didn't even want to tell [the caseworker] where he lived."
As to prong four, the judge properly relied upon the experts' opinions. See F.M., supra, 211 N.J. at 453. She found Dr. Loving's determination that terminating Father's parental rights would not do more harm than good to be credible. She further found that Grandmother "is a really good caretaker for" R.J.F., and added that Father's risk of recidivism would risk leaving R.J.F. "in limbo."
Thus, although the oral opinion did not always proceed linearly, the judge set forth her "'factual findings and correlate[d] them with the relevant legal conclusions.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010) (quoting Curtis v. Finneran, 83 N.J. 563, 570 (1980)). Accordingly, we discern no basis to remand under Rule 1:7-4(a).
VI.
Father also contends that trial counsel rendered ineffective assistance by failing to voir dire Dr. Loving, and by offering Dr. Goldberg's expert testimony.
It is well-established that parents have a right to the effective assistance of counsel in termination proceedings under the due process guarantee of Article I, paragraph 1 of the New Jersey Constitution. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007); N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 644 (App. Div. 2010). To show ineffective assistance of counsel in a termination case, Father must meet the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). B.R., supra, 192 N.J. at 307-09. Accordingly, Father must show both "'that counsel's performance was deficient,'" and "'that the deficient performance prejudiced the defense.'" State v. Taccetta, 200 N.J. 183, 193 (2009) (citations omitted).
To establish the first prong, Father must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,'" State v. Arthur, 184 N.J. 307, 319 (2005) (citation omitted), and show that the deficiency was "'so serious that counsel was not functioning as the "counsel"'" to which Father is entitled. State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). To satisfy the second prong, Father must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Allegro, 193 N.J. 352, 367 (2008) (citations and quotation marks omitted). The second prong "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the . . . result reached.'" Ibid. (citation omitted).
A.
Father has not shown that trial counsel was deficient because he chose to forego voir dire of Dr. Loving as to his expertise in assessing the risks of recidivism. Dr. Loving's resume, which was entered into evidence, states that one of his "specialty areas" is "[r]isk assessment" for "criminal recidivism." He testified that he has been licensed in psychology in New Jersey since 2005, and has been called upon to testify as an expert psychologist in this State approximately seventy times. It was therefore reasonable to infer that Dr. Loving was qualified to provide a reliable evaluation regarding Father's potential for recidivism. See In re R.S., 173 N.J. 134, 135 (2002) (noting that, when assessing an expert's testimony, "[i]t is reliability that must be assured").
By stipulating to Dr. Loving's expert qualifications, counsel avoided a needless recitation of Dr. Loving's credentials. It is unclear how counsel's choice not to highlight Dr. Loving's qualifications was a "strategic miscalculation[]," much less a miscalculation "'of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" State v. Castagna, 187 N.J. 293, 314-15 (2006) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). Thus, we cannot say that counsel failed to utilize a "'sound trial strategy'" in securing for Father a fair trial. B.R., supra, 192 N.J. at 307-08.
Father argues that Dr. Loving failed to identify any acceptable methodology in developing his opinion regarding Father's risk of recidivism. However, "there is nothing quintessentially inscrutable about a prediction of future criminal conduct." In re Commitment of R.S., 339 N.J. Super. 507, 537 (App. Div. 2001) (citing Doe v. Poritz, 142 N.J. 1, 34 (1995)), aff'd 173 N.J. 134 (2002). Dr. Loving testified that he based his opinion on his review of the Division's file and on his clinical interview of Father. "[E]xpert testimony concerning future dangerousness based on clinical judgment alone has been found sufficiently reliable for admission into evidence at criminal trials." R.S., supra, 339 N.J. Super. at 537. We see no reason to find otherwise here.
Neither has Father shown prejudice. In assessing Father's risk of recidivism, the judge considered the varied types of offenses for which Father had been convicted, Father's continued use of marijuana, and the fact that Father had been convicted of child endangerment while on parole for another offense. Despite this evidence, the judge found Father's risk of recidivism to be lower than Dr. Loving opined. Thus, there is no "reasonable probability that, but for" counsel's failure to voir dire Dr. Loving, "the result of the proceeding would have been different." B.R., supra, 192 N.J. at 307 (citation and quotation marks omitted).
B.
Father claims that Dr. Goldberg's testimony was directly detrimental to his case and entirely unhelpful. In fact, Dr. Goldberg's testimony was favorable and helpful to Father in many respects. Dr. Goldberg found Father was not at a high risk for recidivism, as opined by Dr. Loving, and indeed the judge cited Dr. Goldberg in finding a lower level of recidivism than Dr. Loving had found. Dr. Goldberg found it unlikely "the type of flawed judgment that caused [N.D.] to get burned" would recur. Dr. Goldberg opined that "[t]he only issue that had any bearing" on Father's ability to parent safely was Father's "difficulty sustaining attention," which supported Father's claim that inattention rather than abuse caused N.D.'s burns. Dr. Goldberg addressed that issue by observing that Father was "hyper vigilant" with R.J.F. Dr. Goldberg testified that Father's relationship with R.J.F. "has value for sure and it would be much better if it was not severed." He reasoned that Father "could play an important part in [R.J.F.'s] life," which would be "very good for [R.J.F.] as he grows up." Dr. Goldberg's opinion persuaded the judge, who, after terminating Father's parental rights, "direct[ed] the Division to explore with [Grandmother] whether there's anything we can do to help her if she thinks that it would be good for [R.J.F.] to visit [Father] in the future."
Dr. Goldberg's testimony was not entirely sanguine for Father, but even those aspects were not unalloyed. Dr. Goldberg testified that Father presented with "moderate levels of disturbance," and that his "impressions suggested more psychopathology than Dr. Loving's report," but Dr. Goldberg testified that he was inclined to defer to Dr. Loving's more favorable findings which showed "much less disturbance." The judge stated that Dr. Goldberg's diagnosis "was in some ways more serious than Dr. Loving's," in that Dr. Goldberg "talked a lot" about Father's narcissistic tendencies. However, Dr. Goldberg made clear that he did not find Father's narcissistic tendencies to be indicative of parental unfitness, and did not diagnose Father with a personality disorder. Dr. Goldberg also testified that Father "suffered significant trauma through the course of his life and that by itself would lead to the need for services." As stated above, Dr. Goldberg could not opine to a reasonable degree of psychological certainty whether it would not do R.J.F. more harm than good to sever Father's parental rights, but Dr. Goldberg disagreed that Dr. Loving could find that termination would not do more harm than good within a reasonable degree of psychological certainty. Dr. Goldberg opined that R.J.F. "is best served by insuring a permanent connection between [Grandmother] and him," but that opinion was hard to avoid given that Grandmother had raised R.J.F. Dr. Goldberg was also concerned that "there are questions about how well [Father] can sustain a parenting role, at least in the capacity of parenting by himself," but that too may have been a necessary concession to reality.
Dr. Goldberg explained that, because of his limited time with Father, he administered the Personality Assessment Screener (PAS), which he described as much briefer and considerably less accurate than the Personality Assessment Index (PAI) utilized by Dr. Loving.
Thus, though not uniformly positive regarding Father's attributes, Dr. Goldberg's testimony rebutted Dr. Loving's finding that Father was at a high risk of recidivism, discounted the Division's use of N.D.'s scalding as a prediction of future harm, and emphasized the value of Father's relationship with R.J.F. Further, Dr. Goldberg's favorable testimony may have been more credible because he did not view Father's situation through rose-colored glasses.
Furthermore, Father has not shown that trial counsel had a more favorable alternative. Father has not proffered a more positive opinion from another expert whom trial counsel could have called. Father fails to show that trial counsel would have been better off leaving the Division's expert and case unrebutted. Thus, we cannot say that counsel's decision to present Dr. Goldberg's report and testimony was deficient, particularly given the "'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Arthur, supra, 184 N.J. at 319 (citation omitted).
In any event, Father has not shown prejudice. The strength of the evidence in favor of termination shows that the outcome was unlikely to have been different if counsel had not introduced Dr. Goldberg's testimony. There was powerful evidence, and a strong opinion from Dr. Loving, showing that N.D.'s scalding demonstrated that Father poses "a future risk of maltreatment" towards R.J.F., and that Father had a risk of recidivism. There is no reasonable probability that, had Dr. Goldberg not testified, the judge would have determined that Father posed no risk of harm to R.J.F. from maltreatment or recidivism.
Nor does Father show that, without Dr. Goldberg's testimony, there was a reasonable probability the judge would have found that prong four was not met. The judge noted that Dr. Goldberg and Dr. Loving agreed that Father is not ready to parent independently, and that R.J.F. has a "healthy and strong" attachment to Grandmother. The evidence supports the experts' conclusions, and Father does not argue otherwise. The judge also noted that Dr. Goldberg "could not give an opinion that it would cause [R.J.F.] more harm than good to be separated from" Father, but more importantly the judge adopted Dr. Loving's contrary opinion, which he gave within a reasonable degree of psychological certainty. Father cannot show that the judge's decision would have been any different in the absence of Dr. Goldberg's attack on Dr. Loving's conclusion.
Moreover, a showing of prejudice "will include the requirement of an evidentiary proffer in appropriate cases." B.R., supra, 192 N.J. at 311. Again, Father provides no such proffer. He does not supply a certification by any expert to show that it was feasible to present expert testimony more beneficial to his case than Dr. Goldberg's. Nothing in the record supports the notion that Father could have produced such an expert. We therefore conclude that defendant's claim of ineffective assistance of counsel lacks merit.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION