DOCKET NO. A-4105-13T2 DOCKET NO. A-4124-13T2
Joseph E. Krakora, Public Defender, attorney for appellants W.B. and D.C., II (Celeste Dudley-Smith, Designated Counsel for W.B. in A-4105-13, on the brief; Durrell Wachtler Ciccia, Designated Counsel for D.C., II in A-4124-13, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent in A-4105-13 and A-4124-13 (Lewis A. Scheindlin. Assistant Attorney General, of counsel; John W. Tolleris, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.C. and W.B. in A-4105-13 and A-4124-13 (David Valentin, Assistant Deputy Public Defender, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Ostrer and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. FG-11-27-14. Joseph E. Krakora, Public Defender, attorney for appellants W.B. and D.C., II (Celeste Dudley-Smith, Designated Counsel for W.B. in A-4105-13, on the brief; Durrell Wachtler Ciccia, Designated Counsel for D.C., II in A-4124-13, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent in A-4105-13 and A-4124-13 (Lewis A. Scheindlin. Assistant Attorney General, of counsel; John W. Tolleris, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.C. and W.B. in A-4105-13 and A-4124-13 (David Valentin, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
In these consolidated appeals, defendants W.B. and D.C. II (D.C.) seek review of the April 29, 2014 order of the Family Part that terminated each man's respective parental rights to his daughter. W.B. is the father of J.A.B. (Jane), who was nearly six years old when judgment was entered following the guardianship trial. D.C. is the father of K.A. (Kate), who was four and one-half years of age when judgment was entered. Defendant A.E.B. (Alice), the mother of both girls, voluntarily surrendered her parental rights in the course of this litigation and is not involved in the appeal.
The record does not reveal any contact between defendants and their daughters. W.B. has been incarcerated for Jane's entire life and currently is serving a sentence for homicide with a parole eligibility date of March 17, 2046. D.C. has been incarcerated in North Carolina since April 2013, and, after the guardianship trial concluded, he was sentenced for offenses committed in that state.
On October 22, 2012, the Division of Child Protection and Permanency (the Division) commenced an investigation after receiving a report from a Trenton hospital that Kate presented in the emergency room with second and third-degree burns to her feet and ankles. The injuries were consistent with the child being deliberately placed in hot water, and Alice admitted she delayed bringing Kate to the hospital fearing Division involvement. This resulted in a later finding by the Division of substantiated abuse against Alice.
On November 6, the Division executed an emergency removal of Kate, and she was placed in the home of a resource parent, R.S.L. (Rhonda). At the time, Jane was already in the custody of her maternal grandmother, T.B. (Toni), and, pursuant to an agreed-upon safety plan, Alice was forbidden to have unsupervised contact with the child.
Within weeks, however, Alice's boyfriend reported to the Division that Jane was living with her mother in violation of the safety plan. The Division's investigation confirmed that Toni could no longer care for Jane and returned her to Alice. The Division then placed Jane with Rhonda, and on December 14, 2012, the Division amended its complaint, adding Jane to the litigation.
W.B. was already incarcerated in Trenton State Prison when the Division first contacted him by letter on December 20, 2013, informing him of the date of the next court proceeding and providing him with an application for appointment of counsel. W.B. responded, asking to be kept apprised of all developments and to have "all bills mail[ed] to [him]." On January 27, 2014, W.B. sent a note to the Division seeking contact visits with Jane and Kate and requesting their address and phone number. The Division's caseworker responded, advising W.B. that visits in the prison were "not encourage[d]," and that Division policy prohibited disclosure of Jane's address. The caseworker included adoption registry forms, informing W.B. that this would permit Jane to "contact [him] in the future" if she wished. In February, the judge signed an order permitting Division staff and experts retained by any party to enter the prison for meetings and to conduct evaluations.
At the outset of the Division's involvement, Alice told the Division someone other than D.C. was Kate's father. However, by the first court appearance, D.C. was identified and a search for his whereabouts began on December 5, 2012, and concluded to no avail on January 28, 2013. At some later point in time that is undisclosed by the record, the Division located and served D.C. in North Carolina with notice of the litigation.
D.C. supplied the name of his aunt, S.J. (Shirley), as a possible caregiver and indicated his plan to return for a court hearing in April 2013. However, as was later revealed at trial, one week before the court date, D.C. was arrested and remained in custody thereafter in North Carolina. The Division also advised the court that it was making efforts to have D.C. psychologically evaluated while he was incarcerated in North Carolina.
On March 28, 2014, the court held a case management conference at which D.C.'s counsel and the judge discussed how to proceed in light of defendant's out-of-state incarceration. The judge indicated,
if [D.C.'s counsel] can arrange [for] his client to appear by video for testimony or surrender . . . that's great. But if it can't be arranged, then he's in jail in another state and I don't have the ability to writ on it. I think that's the best I can do at this point.
Defense counsel advised he was attempting through an investigator to arrange for D.C.'s appearance by video. The judge stated, "[i]f you run into any problems on this end and you need me to get involved, call my chambers and I'll see what I need to do to nudge things along on this end to get the cooperation you need."
Meanwhile, although Rhonda expressed her willingness to adopt both girls, the children's placement with her had some initial rough patches. In March 2013, it was revealed that Jane had elevated levels of lead in her blood, and the Division ordered the testing of Rhonda's home. Lead was found in a window sill, and Rhonda was required to take measures to address the problem.
On March 22, 2013, Rhonda reported that Jane was having behavioral issues and was wetting the bed after visits with Alice. The Division also investigated reports that Rhonda was using corporal punishment on the girls. Rhonda denied the allegations and told the caseworker that "if the girls continu[e]d to make false accusations against her she would need to think long and hard about continuing" to have them in her custody. As late as January 2014, a Division report indicated that Jane was displaying defiant behavior, cursing, and exhibiting sexualized behavior with her dolls.
However, one month later, it was noted that Jane's behavior was improving, she had significantly lower levels of lead in her blood, no longer expressed sexualized behavior, and was doing well in school. Jane told the Division that "she like[d] being with [her] foster parent and living in her home. . . . [And she] denied being fearful of anyone." Kate appeared healthy, could count to one hundred, and told the Division that she felt safe and things were going well in Rhonda's home.
Dr. Alan J. Lee, Psy.D., conducted bonding evaluations of Jane and Kate with Rhonda on January 4, 2014, and his reports were later introduced at trial. Dr. Lee reported that Rhonda interacted well with Kate while playing a game, stating "[t]he play was quite organized, mutual, and reciprocal." Dr. Lee said "[t]hey both evidenced good affect, intonation, and eye contact." In a private meeting with Dr. Lee, Kate reported that she likes living with Rhonda, who she called "nanna." Regarding Jane, Dr. Lee said she also had a positive interaction with the foster mother while playing games with her.
Dr. Lee concluded that Kate and Jane "ha[d] formed a significant and positive psychological attachment and psychological bond" with the foster mother. He also concluded as to each girl that "there [was] a significant risk [of] the child suffering severe and enduring psychological or emotional harm if her relationship with the [foster mother] is permanently ended." Accordingly, Dr. Lee recommended adoption of the children by Rhonda.
On April 16, 2014, as the guardianship trial began and citing his April 9 correspondence to the judge, D.C.'s counsel reported that the North Carolina jail did not have the capability of transmitting video to the courtroom but would allow D.C. to use a telephone. Counsel further explained that he was given the name of a contact person at the jail to arrange for defendant's use of a phone, but that individual was unavailable. At that point, and without specifically requesting an adjournment, counsel "renew[ed] [his] request to have [D.C.] appear by telephone," although he admitted that he was "not sure how feasible that's going to be today."
Citing his experiences during the past four years handling guardianship trials, the judge denied counsel's request. He gave the following reasons: 1) individuals with bench warrants could avoid appearing in court by appearing telephonically, thus "[d]enying responsibilities to one court and still asking privileges to another"; 2) telephone conferences were not sufficiently confidential because others in the room with the parties may hear the proceedings; 3) the telephone call may be recorded; 4) individuals who were not parties sometimes answered the phone and gave statements; 5) there were concerns about identification of the individual on the phone; 6) the risk of dropped calls and poor connections added complications to the proceedings and could interrupt and delay them; 7) poor equipment; 8) reduction in the formality of the proceedings; 9) the difficulty in controlling the individual on the other line; 10) the difficulty in reaching the party. The judge said while "[i]t certainly would feel a lot better if we could get [D.C.] here . . . . He's in jail . . . in North Carolina beyond the reach of New Jersey's jurisdiction."
The judge suggested that counsel call D.C. and consult with him before conducting any cross-examination. Counsel informed the judge that jail policy required the inmate to initiate the call, D.C. would be calling at 11:30 a.m., and counsel requested that the Division present their witnesses before the call. D.C.'s counsel would then cross-examine them after conferring with his client over the phone. All parties agreed with that arrangement.
The record reveals that defense counsel did confer telephonically with D.C. before any cross-examination of the Division's witnesses. Defense counsel advised the judge he was ready to proceed, and he further told the judge that D.C. would not be testifying as a witness.
W.B. was present for trial. His counsel informed the judge that W.B. was serving a forty-five year sentence for murder and that he wanted to proceed to trial and not execute a voluntary surrender. The parties stipulated to the admission of documentary evidence, including the reports of Dr. Lee, and trial began and ended with the testimony of the Division's caseworkers, John Marciniak and Johanna Uydess. Defendants and the Law Guardian called no witnesses.
In his written opinion that followed, the judge recounted the testimony. He specifically found Marciniak to be "a credible witness" whose testimony he "consider[ed] . . . with significant weight." Marciniak indicated the Division's initial goal was to reunify the girls with Alice and their maternal grandmother Toni. However, because Alice's participation in services had "peaks and valleys," the permanency plan was shifted from reunification.
The judge noted that W.B. had been incarcerated since before Jane's removal, and that Jane had no relationship with her father or his family prior to the Division's involvement. Marciniak testified that the Division provided no services to W.B. because he was incarcerated and serving a lengthy sentence. The judge further noted that after Jane's placement with Rhonda, W.B.'s mother, T.P. (Tammy), offered herself as a placement resource. However, as the judge noted, Marciniak evaluated her home and found four adults and three children living there in three bedrooms. Tammy also had a substantiated abuse finding in her past. In the end, Tammy never was able to secure appropriate housing, and she never applied to become a licensed resource home. Additionally, Marciniak testified that Tammy was granted permission to visit with Jane and Alice but never attended any visits.
The judge next considered Marciniak's testimony regarding the Division's contacts with D.C. and his relatives. He noted that Alice first supplied the Division with Shirley's name, and it was through Shirley that Marciniak was able to contact D.C. in North Carolina. The judge noted D.C. intended to appear in the litigation, but Shirley informed Marciniak of D.C.'s arrest. The judge noted that Marciniak never heard from defendant again.
Marciniak testified regarding Shirley's initial interest in being a placement resource for both girls, having been familiar with both of them because they lived nearby. But, Marciniak did not know if either Jane or Kate knew Shirley. In any event, Shirley indicated that she needed to find larger quarters before actually offering herself as a placement resource. Marciniak testified that Shirley never sought or submitted an application for licensing.
The judge also found Uydess to be a "credible witness" and gave her testimony "significant weight." Uydess described the relationship that the children had with each other and with Rhonda. Uydess testified that the Division could provide no services to W.B. while he was in prison. She noted the difficulty in scheduling her own visits with defendant since each required a court order, and she described the intimidating nature of the facility, where each visit involved talking to W.B. "through a very small window" while he remained in a "cage."
Uydess testified that Shirley wished to be a resource parent for Kate only. Shirley did move into different quarters, but Uydess testified that Shirley never visited with the child. The Division ultimately issued a "rule out letter" to Shirley based upon the amount of time that the children had been with Rhonda. Uydess also described the Division's contacts with Tammy and with another relative of W.B. Both were ruled out by the Division for various reasons.
The judge then considered the statutory best-interests-of-the-child test, pursuant to which the State may terminate parental rights only if it proves by clear and convincing evidence that,
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of
permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N. J.S.A. 30:4C-15.1(a).]
The judge first considered the proofs as to W.B. W.B. had been incarcerated since before Jane was born, and the child called Alice's current paramour "'dad.'" W.B. was unavailable to parent the child, resulting in Jane being left with Alice, whose neglect endangered Kate and posed potential harm to Jane. The judge calculated that W.B.'s sentence would make him unavailable to parent Jane until 2046. He found that prong one had been proven. The judge reasoned that W.B. could not eliminate the harm that Jane might face because he was unable to provide a safe and stable home for her now, or in the foreseeable future. Additionally, any continued delay in placement would "add to the harm."
Regarding the third prong, the judge concluded it "would have been futile for the Division to provide services to [W.B.] in prison." He also noted that the Division had "investigated a number of relatives who were assessed and ruled out as potential caregivers[,]" including Tammy, and none of W.B.'s relatives had sought custody of Jane. Lastly, the judge concluded the Division had proved prong four, citing Dr. Lee's report, Jane's bond with Rhonda and the child's comments to Uydess.
Turning to D.C., as to prong one, the judge found that there was no evidence D.C. had any "substantial and meaningful contact" with Kate. The judge noted that Kate suffered burns while in Alice's care, and while D.C. was uninvolved with the child's life. The judge further found "[t]here is no indication that [D.C.] will be released from prison in the foreseeable future." The judge determined that D.C. was unable to eliminate the harm in light of his incarceration, and that Kate, who had now been with Rhonda since November 2012, had "adjusted and flourished" outside Alice's care.
As to prong three, the judge again noted that the Division could not realistically provide services to D.C., since he was incarcerated out of state. The judge found that the Division properly considered alternative placements, including Shirley, who first needed to find larger quarters and then never contacted the Division again to "initiat[e] the licensing process." Lastly, citing Dr. Lee's report, the judge concluded that Kate's strong attachment to Rhonda and the fact that she had no relationship with D.C. meant "[t]ermination of parental rights will not do more harm than good."
The judge entered the order under review and this appeal followed.
Both defendants contend that the Division failed to prove by clear and convincing evidence all four prongs of the statutory best-interests-of-the-child test, N.J.S.A. 30:4C-15.1(a). Additionally, D.C. argues for the first time on appeal that he was denied "due process and fundamental fairness" because he was "precluded from participation in the guardianship trial."
The Division argues that it proved by clear and convincing evidence all four of the statutory prongs, and the procedures used by the judge to ensure D.C.'s participation at trial did not violate his due process rights. The Law Guardian agrees that the Division's proofs were clear and convincing as to all four standards, and that the procedure employed by the judge did not violate D.C.'s due process rights.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
We are mindful of the well-known principles that guide our "limited" review "of a trial court's order terminating parental rights." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). "We will not disturb the family court's decision . . . when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We defer to the factual findings of the trial judge, who had "the opportunity to make first-hand credibility judgments about the witnesses . . . [and] has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).
Because of "the family courts' special jurisdiction and expertise in family matters," we accord even greater deference to the judge's fact finding. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
"[W]here the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." R.G., supra, 217 N.J. at 552 (omission in original) (internal quotation marks omitted). Yet, "even in those circumstances[,] we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotation marks omitted).
We first consider D.C.'s contention that his due process rights were violated because he was denied meaningful participation in the trial. This presents a purely legal issue which we review de novo. R.G., supra, 217 N.J. at 552-53. As noted, D.C.'s counsel never specifically asked for an adjournment of trial, nor did he specifically object to the procedure actually used.
"Terminating parental rights implicates fundamental liberty interests that are protected under the United States Constitution." In re G.P.B., 161 N.J. 396, 404 (1999). In Santosky v. Kramer, 455 U.S. 745, 754, 102 S. Ct. 1388, 1395, 71 L. Ed. 2d 599, 607 (1982), the United States Supreme Court specifically applied to termination proceedings the due process analysis adopted in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 19, 33 ( 1976). In termination cases, we have similarly adopted the Eldridge analysis, which requires the "careful balancing" of three factors:
(1) identification and specification of the private interest that will be affected by the official action; (2) assessment of the risk that there will be an erroneous deprivation of the interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) evaluation of the governmental interest involved, including the added fiscal and administrative burdens that additional or substitute procedures would require.
[N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 465 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004).]
As in M.Y.J.P., the focus in this case is on the second Eldridge factor. Id. at 466-68. "The question to be answered is not whether particular procedures were used, but rather whether those procedures which were employed were appropriate and adequate to protect the interests at stake." Id. at 467-68.
In M.Y.J.P., the defendant was not present for trial because she resided in Haiti. Id. at 432. The judge entered a case management order requiring that 1) the Division present its case-in-chief first, 2) a translated transcript be prepared so defendant could review it with counsel, and 3) cross-examination of the witnesses and a video-taped deposition of defendant would follow. Id. at 438-39.
The defendant argued her due process rights were violated because the court failed to secure her presence at the hearing and did not arrange for her to attend by telephone. Id. at 463. We concluded that the trial judge made sufficient efforts for the defendant to attend or participate by telephone but was unable to accomplish either. Id. at 464. We concluded that the defendant's due process rights were not violated through the procedure employed given the unusual circumstances of the case. Id. at 469.
Similarly, here, defendant was imprisoned in North Carolina. Despite diligent efforts before and during trial, defendant was unavailable by telephone when trial commenced. We do not endorse a number of concerns cited by the judge. Nevertheless, there was no specific request for an adjournment, and the judge adopted a suggestion made by defense counsel that the Division call its witnesses and cross-examination be withheld until counsel had a chance to confer with defendant. In fact, defense counsel did confer with his client before he began cross-examination. There simply is no "showing that [defendant's] able counsel's cross-examination was adversely affected by the fact that his client was not present in the courtroom." Ibid.
Defendant was free to introduce other evidence and to call witnesses on his behalf, but he chose not to do so. Moreover, after conferring with his client, defense counsel specifically represented to the judge that defendant would not be testifying. In short, the procedure utilized by the court was sufficient to provide D.C. with "meaningful participation" and to prevent unnecessary delays that would "impact negatively upon a child's need for permanency." Id. at 468, 470.
Turning to defendants' substantive arguments, we start by recognizing that the four prongs of the statutory best-interests test "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." M.M., supra, 189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)) (internal quotation marks omitted). When considering the first prong, the court's focus is not "on a single or isolated harm or past harm," but rather "on the effect of harms arising from the parent-child relationship over time on the child's health and development." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). "To satisfy this prong, [the Division] does not have to wait 'until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family. Servs. v. F.M., 211 N.J. 420, 449 (2012) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).
"The second prong, in many ways, addresses considerations touched on in prong one." Id. at 451. It "relates to parental unfitness," which may be established by demonstrating that: (1) "[t]he parent is unwilling or unable to eliminate the harm"; (2) "the parent has failed to provide a safe and stable home"; or (3) "a delay in permanent placement will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)) (internal quotation marks omitted).
Both defendants contend that the Division's proofs regarding prongs one and two relied solely upon the fact that each was incarcerated. The Division and Law Guardian counter that neither man ever had any relationship with his daughter, they were unable to provide stable homes as a result of their incarceration, and the girls would suffer harm if their relationship with their foster mother was terminated or permanency was delayed.
Incarceration "necessarily limits a person's ability to perform the regular and expected parental functions. It may also serve to frustrate nurturing and the development of emotional bonds and [may be] a substantial obstacle to achieving permanency, security, and stability in the child's life." N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006) (citations omitted) (internal quotation marks omitted). However, the Court has recently reiterated that incarceration alone "is an insufficient basis for terminating parental rights." R.G., supra, 217 N.J. at 556.
Rather, the State must present "particularized evidence of how a parent's incarceration affects each prong of the best-interests-of-the-child standard." Ibid. Among other things, the court must consider a defendant's "performance as a parent before incarceration, to what extent his children were able to rely on him as a parent, and what effort, if any, he has made to remain in contact with his children since his incarceration." Id. at 555-56 (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 143-44 (1993)). "[W]ith the aid of expert opinion, [the court must] determine the need of the children for permanency and stability and whether continuation of the parent- child relationship with [the parent] will undermine that need. L.A.S., supra, 134 N.J. at 144. In R.G., the defendant parented his child before his imprisonment and none of the offenses "for which appellant was convicted and incarcerated directly bore on appellant's parental fitness." 217 N.J. at 560 (citing L.A.S., supra, 134 N.J. at 141-42).
The situation here is much different, and the facts are more similar to those we considered in N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011). In T.S., we concluded that despite the Division's failure to provide services to the incarcerated defendant-father, the best-interests test was proved by clear and convincing evidence because he was a "stranger" to the minor. Id. at 242-43.
In this case, both defendants are strangers to their children. W.B. will be incarcerated for three more decades. S.A., supra, 382 N.J. Super. at 534 ("The length of the custodial term is . . . an important consideration."). He argues that the Division's failure to provide services to him should somehow mitigate against a finding as to prong one and two. However, as the Court recognized in R.G., providing services to an incarcerated parent may be appropriate in cases where "there [is] evidence of a relationship." R.G., supra, 217 N.J. at 564. Here, services would be "futile" because there is no semblance of a relationship between W.B. and Jane, nor is there likely to be one for many, many years. T.S., supra, 417 N.J. Super. at 242-44. The delay in permanent placement and the harm it will cause Jane are evident and clearly sufficient to meet prong two of the statutory test. Id. at 244.
In fairness, D.C. never knew he was Kate's father until the litigation commenced because, at least in part, Alice hid the information from the Division and, we may assume, D.C. The inescapable fact is that for whatever reason, D.C. was absent during the first three years of Kate's life before she came to the Division's attention. There was no proof adduced at trial as to when D.C. will in fact be released from custody, but, assuming that the date supplied in his brief, March 2016, is correct, D.C.'s ability to begin parenting Kate is hardly "imminent." R.G., supra, 217 N.J. at 563. Kate has been in Rhonda's care since November 2012, and the two formed a nurturing bond that has provided Kate with a stable, healthy home. In cases involving the continued incarceration of a parent, we have said that the court must consider, among other things, "the need of the child for permanency and stability and whether continuation of the parental relationship will undermine that need." S.A., supra, 382 N.J. Super. at 534. We conclude that the Division's evidence was sufficient as to prongs one and two of the statutory test.
The third prong of the best-interests test "requires an evaluation of whether [the Division] 'made reasonable efforts to provide services to help the parent' remedy the circumstances that led to removal of the children from the home." F.M., supra, 211 N.J. at 452 (quoting N.J.S.A. 30:4C-15.1a(3)). "The emphasis here is on the steps taken by [the Division] toward the goal of reunification." Ibid. (emphasis added).
"The diligence of [the Division]'s efforts on behalf of a parent is not measured by their success." D.M.H., supra, 161 N.J. at 393. Rather, reasonableness "must be assessed against the standard of adequacy in light of all the circumstances of a given case." Ibid. "Even if the Division ha[s] been deficient in the services offered to [a parent], reversal would still not be warranted, because the best interests of the child controls." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div. 2007).
We recognize that in most circumstances, the Division "may not ignore requests or avoid providing services to an incarcerated parent." R.G., supra, 217 N.J. at 558 (citing S.A., supra, 382 N.J. Super. at 535-36)). As a result, the testimony offered in this case regarding the Division's "policy" toward incarcerated individuals is troublesome. Nonetheless, given the particular facts, we reject the arguments made by both defendants that the Division's efforts under prong three were deficient.
Alice had been the primary caregiver for both girls, neither of whom had had any contact with her father. Given the incarceration of both defendants, the Division's initial goal was reunification of the girls with Alice. As we have said in similar circumstances, "it was not unreasonable for the Division to focus its efforts on her," F.H., supra, 389 N.J. Super. at 621, particularly in light of "the difficulty and likely futility of providing services to a person in custody." Ibid. (quoting S.A., supra, 382 N.J. Super. at 535-36) (internal quotation marks omitted). When reunification failed, the Division attempted to keep the siblings together, something we have recognized as an appropriate consideration in the best interests analysis. See In re C.R., 364 N.J. Super. 263, 278 (App. Div. 2003).
The Division considered placement with relatives of both defendants, but, for a variety of reasons, none of the relatives qualified or accepted the responsibilities involved. The trial court's conclusion that the Division made reasonable efforts was supported by substantial and credible evidence.
The statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. "[T]he 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 (quoting M.M., supra, 189 N.J. at 281 (internal quotation marks omitted). "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong," termination may be appropriate. K.H.O., supra, 161 N.J. at 363.
In this regard, we find the arguments made by both defendants lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). It suffices to say that neither defendant had any relationship with his child, the relationships forged by the girls with Rhonda were strong and nurturing, and the trial judge found based on Dr. Lee's unrebutted report that severing those bonds would cause enduring damage to Jane and Kate.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION