NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.R.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-4230-04T44230-04T4

A-4291-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.R.S.,

Defendant-Appellant.

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.D.H.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF M.B.D.H.,

a Minor.

 

Submitted: September 28, 2005 - Decided:

Before Judges Fall, Parker and Levy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Number FG-20-27-04.

Yvonne Smith Segars, Public Defender, attorney for appellant J.R.S. (Gilbert G. Miller, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant R.D.H. (Philip Lago, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christina A. Ramirez, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for the minor child M.B.D.H. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In these consolidated guardianship cases, J.R.S and R.D.H. appeal from a judgment entered in the Family Part on March 21, 2005, terminating their parental rights to their daughter, M.B.D.H., and placing the child in the care, custody and guardianship of the New Jersey Division of Youth and Family Services (DYFS or Division) for all purposes, including placement for adoption. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

On May 6, 2002, R.D.H. gave birth by Caesarian section to M.B.D.H. at Trinitas Hospital in Elizabeth. On May 8, 2002, DYFS received a referral from Marian Bereski, a social worker at Trinitas Hospital, stating R.D.H. had arrived at the hospital on May 4, 2002; that R.D.H. had no prenatal care; that R.D.H. had tested positive for cocaine; and that M.B.D.H. had tested positive for barbiturates. However, M.B.D.H. was healthy and hospital staff advised that the presence of barbiturates in the child's bloodstream might have been due to drugs administered by hospital personnel during the delivery procedure.

During an interview of R.D.H. by responding DYFS caseworkers, she admitted to the use of cocaine and marijuana while pregnant, and that she had received no prenatal care. After substantiating neglect, upon discharge of M.B.D.H. from the hospital on May 23, 2002, DYFS placed the child, with the consent of R.D.H., in the home of A.P., a family friend.

DYFS then arranged for R.D.H. to attend a drug program at Proceed, Inc., provided supportive services to the family, and arranged supervised visitation for R.D.H. with the child. R.D.H. did not follow through with the drug treatment program. The DYFS case plan sought family reunification in approximately six months.

On July 25, 2002, the DYFS caseworker was informed by A.P. that M.B.D.H. would have to be removed from her home by August 2, 2002, because A.P. was returning to the Dominican Republic. On July 26, 2002, the DYFS caseworker discussed the matter with R.D.H., who did not request return of M.B.D.H. to her care. However, R.D.H. informed DYFS that her cousin, B.B., who was residing in Pennsylvania, was willing to care for the child. On August 2, 2002, DYFS placed M.B.D.H. in foster care pending an investigation of possible placement with B.B. or other relatives or friends. Bi-weekly supervised visitation was arranged for R.D.H.

R.D.H. was incarcerated for approximately two months between August and October 2002. Upon her release, supervised visitation resumed, and DYFS again attempted to enroll R.D.H. in a drug treatment program at Proceed.

On November 22, 2002, DYFS filed a child abuse and neglect complaint against R.D.H. in the Family Part pursuant to N.J.S.A. 9:6-8.22, under docket number FN-20-101-03F, seeking an order vesting custody of M.B.D.H. with the Division. Based on information that had been provided by R.D.H., the complaint also named J.G. as the child's father; the whereabouts of J.G. could not be determined.

The Family Part took testimony from the DYFS worker, and issued an order on November 22, 2002, placing custody of M.B.D.H. with DYFS, and ordering R.D.H. and J.G. to show cause on December 10, 2002, why the order of custody should not continue. The order also arranged for the legal representation of the parents and the appointment of the Law Guardian to act on behalf of the child's interests.

Although the record on appeal does not reflect the result of the December 10th hearing, it is apparent that the court continued custody with DYFS. The supervised visitation sessions continued. Efforts to contact R.D.H.'s cousin B.B. in Pennsylvania were initially unsuccessful, and the drug treatment program placed R.D.H. on a waiting list.

On January 2, 2003, R.D.H. informed the Division that J.G. was in the Dominican Republic. A urine sample taken from R.D.H. on that date tested positive for cocaine.

On March 5, 2003, a psychological evaluation of R.D.H. was conducted by Dr. Susan M. Lotto, a psychologist with Dynamic Empowerment, Inc. In her report, Dr. Lotto stated in pertinent part:

She is currently functioning within the mildly extremely low range of intelligence, with individual cognitive skills varying from the deficient to the borderline level. Emotionally, she impresses as a somewhat guarded and immature young woman who is simultaneously struggling with acculturation and early recovery issues. For the most part, she appears to process environmental stimuli in rather concrete, simplistic terms.

After [R.D.H.] has successfully completed a substance abuse treatment program as well as a Parenting Skills Training Program, she should be adequately prepared to provide parental care for her daughter. However, she will need ongoing assistance from social services agencies in terms of practical issues like housing and babysitting resources. [R.D.H.] should similarly be referred to an agency that can provide her with vocational training. Participation in an ongoing support group for women [in] recovery is also suggested. [R.D.H.] should be referred to NA as part of her recovery treatment program.

On February 24, 2003, DYFS scheduled a Spanish-speaking substance abuse evaluation for R.D.H. at Women's Addiction Services for March 5, 2003. However, R.D.H. was late for that appointment, and the evaluation was rescheduled for March 19, 2003; R.D.H. missed that appointment. However, DYFS arranged for a substance abuse evaluation of R.D.H. to be conducted on March 20, 2003 at Catholic Charities. A substance abuse urine screening was negative for all illegal substances, but it was recommended that R.D.H. receive out-patient treatment with Catholic Communities.

Following the substance abuse evaluation, the DYFS caseworker and R.D.H. discussed her case. The caseworker expressed to R.D.H. that if the twelve months of attempted reunification fail, that the matter would be referred to the Division's Adoption Resource Center. The worker reaffirmed the importance of stable housing and a stable income as prerequisites to reunification of M.B.D.H. with R.D.H. The worker suggested that R.D.H. attempt to find employment.

In a letter dated March 31, 2003, DYFS stated that it had initiated an interstate home evaluation of B.B. DYFS also attempted to schedule a visitation with B.B. and M.B.D.H, and when B.B. responded with interest, bi-weekly visitations were scheduled between them. B.B.'s first visit was April 22, 2003. The caseworker informed B.B. that M.B.D.H.'s case had been accepted at the adoption office and that the matter would be transferred there by the end of the month. Thereafter, DYFS transferred M.B.D.H.'s case to the Adoption Resource Center, with the permanency goal of adoption.

On May 13, 2003, R.D.H. tested positive for cocaine; Catholic Charities recommended that she receive in-patient substance abuse treatment. R.D.H. was accepted into the in-patient program of Proceed, scheduled to begin on July 30, 2003.

On August 4, 2003, DYFS filed a verified complaint in the Family Part for guardianship, seeking entry of a judgment terminating the parental rights of R.D.G. and J.G., and the placement of M.B.D.H. with the Division for the purpose of adoption. An order to show cause was issued on that date, with a return date scheduled for August 25, 2003. The order provided for the appointment of counsel for both parents, and representation of the child's interests through the Law Guardian program.

On August 6, 2003, R.D.H. tested positive for marijuana. However, testing on September 8, 2003 was negative for illegal substances. Although she failed to attend on a regular basis, R.D.H. successfully completed a parenting skills training course while at the Proceed program.

A home study by Pennsylvania authorities did not approve placement of M.B.D.H. with B.B., and the Division received adverse information concerning the suitability of B.B. and her home.

On October 27, 2003, R.D.H. tested positive for cocaine. On November 3, 2003, R.D.H. tested positive for cocaine, THC, morphine and benzodiazepines. However, on November 13, 2003, a substance abuse screening was negative.

In a series of case management orders, the court ordered psychological and bonding evaluations of R.D.H., M.B.D.H., and the foster parent. Dr. Jessica G. Pesantez, a psychologist, completed the psychological and bonding evaluations and issued a report on November 19, 2003.

Dr. Pesantez held a B.A. degree in psychology from Rutgers University, a M.A. degree in psychology and a Psy.D. degree in clinical psychology from Indiana University of Pennsylvania. Dr. Pesantez had conducted sixty to seventy similar psychological evaluations in the past, and had approximately eight years of psychology-related experience. At the time she conducted the evaluations in this case, Dr. Pesantez was not a licensed psychologist in New Jersey. However, she was operating under a temporary permit to practice psychology, and was being supervised by Dr. Elayne Weitz, a licensed New Jersey psychologist. See N.J.S.A. 45:14B-6(e), -6(f); N.J.A.C. 13:42-4.2, -4.6.

With respect to R.D.H., Dr. Pesantez concluded in relevant part:

[R.D.H.'s] comprehension of the reason that [M.B.D.H.] was removed from her care, the reason that her cousin has not been approved as a caretaker, and the necessity for the evaluations appeared limited. [R.D.H.'s] insufficient understanding may be due to limited cognitive ability. It is also possible that as she attempts to present herself in a positive light she acts confused about her involvement with DYFS. [R.D.H.] was not forthcoming or honest about her drug and alcohol use. For example, she neglected to report that she tested positive for cocaine when she entered the hospital two days before [M.B.D.H.] was born. Despite numerous questions regarding [M.B.D.H.'s] removal, [R.D.H.] adamantly expressed confusion about DYFS claims of her drug and alcohol involvement.

Due to [R.D.H.'s] lack of honesty and apparent cognitive limitations, I am not confident that she understands what is necessary to provide a safe and nurturing environment for [M.B.D.H.] I am also not confident that she understands or accepts what is required of her to remain drug and alcohol free. [R.D.H.] has not maintained stable housing or employment. It is unclear who her support system is. Such lack of stability and support offers further evidence that [R.D.H.] is not capable of providing a safe and nurturing environment for [M.B.D.H.]

Observations during the bonding evaluation suggest that [M.B.D.H.] demonstrated a level of comfort with [R.D.H.] She was more comfortable as the session progressed as she initiated interactions and tried to verbalize words. [R.D.H.] also seemed more comfortable as the session progressed. She was initially very self conscious. As time progressed, she seemed to enjoy observing [M.B.D.H.'s] behaviors and providing her with affection and care. [M.B.D.H.] seemed to enjoy playing with [R.D.H.] However, she readily approached others whether she knew them or not during the session with [R.D.H.] She seemed to be a very friendly and energetic child. Since she was not particularly attached to [R.D.H.], she demonstrated her friendly disposition with those around her. I believe that she would have allowed her caseworker or myself to meet her needs even though [R.D.H.] was present.

I believe that [M.B.D.H.] will experience limited grief if removed from [R.D.H.'s] care. I do not believe that she will suffer immediate or severe and enduring harm if she were to stop seeing [R.D.H.]

The nature of [M.B.D.H.'s] relationship with [the foster mother] can be described as attached. Observations during the bonding evaluation demonstrate that [M.B.D.H.] feels safe with [her foster mother]. [The foster mother] satisfies her needs of stability. [M.B.D.H.] solely sought out [her foster mother] to attend to her, assist her and join her in play and comfort her. She seemed to thrive in play in her presence and enjoy mutually gratifying interactions. . . . [The foster mother] understood [M.B.D.H.'s] needs for comfort and affection after their separation at the end of the session.

[The foster mother] demonstrated patience with [M.B.D.H.] as well as firmness. I believe that [M.B.D.H.] would suffer immediate harm if removed from [the foster mother's] care. She already reportedly demonstrates distressed behavior when transported to visits with [R.D.H.] by DYFS. Her behavior before and after these visits such as difficulty sleeping and tantrums are examples of how [M.B.D.H.] experiences relatively minor periodic distress. Significant trauma, like removal from her primary attachment figure, could produce more serious symptoms, such as withdrawal or regression. [M.B.D.H.] psychologically views [her foster mother] as her parent. Since she is only one and one-half years old, there is a good chance that she could recover well from the loss of her psychological parent. In order to make a well-adjusted recovery, however, her caretaker would require certain characteristics. It would be important, for example, that [M.B.D.H.'s] caretaker understands and accepts her grief as normal and necessary. It would also be important that [M.B.D.H.'s] caretaker is able to provide a safe and nurturing environment in order for [M.B.D.H.] to develop a new attachment. I do not believe that [R.D.H.] is capable of providing [M.B.D.H.] with the care that she would need to recover from such loss.

In sum, I believe that [R.D.H.] is not capable of providing a safe and nurturing environment for [M.B.D.H.] I believe that [M.B.D.H.] is not attached to [R.D.H.] and that she would not suffer harm if removed from her care permanently. I do believe that [M.B.D.H.] is attached to [her foster mother] and that she would suffer immediate harm if removed from her care. I find it important to note that [the foster mother] seems to consider "beating" as an acceptable form of discipline. She specifically stated that [M.B.D.H.] is compliant and does not require such discipline. As any normal child, [M.B.D.H.] may be less compliant at various times in her life. It is important that [the foster mother] is counseled on appropriate forms of discipline. She does have extensive experience with children. However, she needs to understand that forms of discipline such as "beating" which may have been considered acceptable in the past, are not the best way of disciplining a child.

A urine-sample drug test taken of R.D.H. on December 16, 2003 was negative, as were tests taken on January 26, 2004, March 24, 2004, and April 5, 2004.

At the urging of R.D.H., DYFS made a request through the Interstate Compact on the Placement of Children (ICPC) for an evaluation of her brother A.D.H., who resided in Florida, as a possible placement for M.B.D.H. However, the Florida Department of Children & Families issued a report dated March 25, 2004, disapproving the potential placement with A.D.H. based on the lack of proper accommodations for the child.

On April 12, 2004, the Family Part conducted a permanency hearing. R.D.H. failed to appear and her whereabouts were unknown. The court entered default against R.D.H. and an order approving the permanency plan offered by DYFS of foster home adoption. A case management order was also entered on that date scheduling the matter for trial.

R.D.H. appeared with counsel at a case management conference held on May 18, 2004, the court vacated the default, ordered an assessment of R.D.H.'s living accommodations, and directed that an updated report be issued on the progress of her substance abuse treatment. On May 18, 2004, R.D.H. tested positive for cocaine.

Prior to trial, J.R.S. was identified by R.D.H. as the father of M.B.D.H. However, J.R.S. was not served with the guardianship complaint, order to show cause and various orders that had been entered by the court, until June 3, 2004. Paternity testing was ordered. The court elected to proceed with the scheduled trial, which commenced on June 1, 2004, and continued on June 4, 2004 and June 8, 2004. The matter was then continued to August 2, 2004 to permit time for the paternity testing to be completed. The paternity testing disclosed a high probability that J.R.S. is the father of M.B.D.H., and the court so ruled at the August 8 hearing, formally joining J.R.S. as a party to the guardianship case.

The court provided additional time for discovery in light of J.R.S. being added as a defendant. A psychological evaluation of J.R.S. was also ordered by the court. However, J.R.S. missed two scheduled appointments for his evaluation.

A case management order was issued on August 23, 2004, and another psychological examination of J.R.S. was scheduled. A pre-trial conference was conducted on October 4, 2003. It was determined that J.R.S. had failed to attend his third scheduled defense psychological evaluation. All counsel signified their preparedness and the trial was scheduled to resume on February 8, 2005.

On December 1, 2004, Dr. Pesantez issued a report of her examination of J.R.S., stating in pertinent part:

Despite [J.R.S.'s] good intentions to be a responsible parent to [M.B.D.H.], it is in my opinion that [he] is not fully aware of what is required to care for her on a full-time basis. I am not confident that he understands what is necessary to provide a safe and nurturing environment for [M.B.D.H.] His estimated low average to borderline level of cognitive functioning could explain his limited understanding. Due to [J.R.S.'s] cognitive limitations, I do not believe that he would adequately benefit from parenting skills training. Although he may be able to comprehend the information, it would probably be difficult for him to apply it. Also, he did not exhibit an interest in educating himself. He has not made an effort to obtain his GED nor has he expressed a desire to do so. This lack of interest would further minimize the benefits of parenting skills training. Due to [J.R.S.'s] cognitive limitations, he lacks the ability to mitigate harm [M.B.D.H.] would experience from removal from [the foster mother's] care. His limitations would create an obstacle for him to understand her grief. They would also hinder his efforts to help her deal with it.

According to [J.R.S.'s] report, he lives in a basement apartment. It is questionable that this environment would be an appropriate one in which to raise [M.B.D.H.] She may not receive an appropriate level of cognitive stimulation from which to grow. It is unclear who [J.R.S.'s] support system is. There are no identifiable individuals that could facilitate [J.R.S.'s] efforts in caring for [M.B.D.H.] It is in my opinion that [M.B.D.H.] would not suffer emotional harm if [J.R.S.'s] rights were terminated. Besides the fact that they have not developed a relationship, I do not believe that [J.R.S.] is capable of providing [M.B.D.H.] with a safe and nurturing environment.

Additionally, based on a urine sample collected on September 3, 2004, J.R.S. tested positive for cocaine. He also failed to confirm or attend scheduled supervised visitation sessions. Attempts by the Division to provide treatment for J.R.S.'s substance abuse problem were terminated on December 16, 2004, because he had failed to follow treatment recommendations.

Trial resumed on February 8, 2005, and concluded on February 15, 2005. Dr. Pesantez testified substantially similar to her reports. On March 21, 2005, the trial judge delivered an oral opinion, concluding that DYFS had established by clear and convincing evidence the four requisite elements set forth in N.J.S.A. 30:4C-15.1a for termination of the parental rights of R.D.H. and J.R.S. On that date, the court issued a judgment terminating their parental rights and placed M.B.D.H. in the care, custody and control of DYFS for all purposes, including placement for adoption by her foster mother in accordance with the permanency plan. In reaching this conclusion, the trial judge stated, in pertinent part:

Prong one of the best interest test requires proof that the child's safety, health or development has been or will continue to be endangered by the parental relationship.

Prong two requires proof that the parent is unwilling or unable to eliminate the harm facing the child or is unable 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 [the child's] foster parents would cause serious and enduring emotional or psychological harm to the child.

Here, there is ample proof that [R.D.H.] failed to obtain prenatal care and also that she used cocaine during her pregnancy. However, she also resisted the Division's efforts to assist her with regard to her substance abuse habits. She lied about her drug use to the Division's substance abuse evaluators. . . .

She last tested positive for cocaine on August 11, 2004, more than two years after her baby was born and removed from her care due to her drug use. Furthermore, [R.D.H.] stated during her parenting skills classes at Proceed that she believes her use of marijuana is not an addiction and . . . that it does not affect her ability to function.

She completed her parenting skills classes, but never acknowledged that her drug use was the reason that her child had been removed from her care, according to the reports from the agency giving her the parenting skills training. . . .

[R.D.H.] also failed to disclose the correct name and location of her child's father until the first day of trial. By so doing, she effectively kept him out of this case until the child was over two years old.

[J.R.S.], on the other hand, obviously knew [R.D.H.], had at least a one-night stand with her, yet he never inquired as to whether a pregnancy had resulted, and told Dr. Pesantez that [R.D.H.] never told him of the pregnancy. Like [R.D.H.], he too used cocaine, but lied about this to the evaluator. . . .

Neither parent has ever established a safe, stable home for [M.B.D.H.] Both have left [M.B.D.H.] to the Division's foster care system for years.

[J.R.S.] did not even contact DYFS until December 8, 2004 to complain that he had never received a visitation schedule. After one was faxed to him, he still failed to visit his daughter. He has in fact attended only one visit with her so far even though he professes to want custody of this child. [J.R.S.] also has an older child, a son who is a teenager, living in Cuba. However, [J.R.S.] has had little or no contact with this child for years although the child does, . . . he says, spend time with [his] family in Cuba.

Neither parent has a concrete plan for how he or she would support and care for [M.B.D.H.] were the child to be placed in either parents' care. Neither has any support network.

According to Dr. Pesantez, [R.D.H.'s] I.Q. is borderline to low average. She also has only limited cognitive ability and does not understand how to provide [M.B.D.H.] with a safe and nurturing environment. As Dr. Pesantez points out, [R.D.H.] has failed to maintain stable housing or employment, does not accept that she is suppose to remain abstinent from drugs. Moreover, she has no clear support system.

Dr. Pesantez had serious concern about [R.D.H.'s] ability to parent her daughter. She specifically stated that she was not sure that [R.D.H.] would understand enough to care for her child or would understand enough to care about her child's needs, especially inasmuch as [R.D.H.] was confused even about the reason that DYFS was involved in her own life in the first place.

* * * *

As for [J.R.S.], Dr. Pesantez found him to have average to borderline cognitive function. He has only had limited child rearing experience and is not aware of what would be required to care for [M.B.D.H.] full time. Dr. Pesantez was not optimistic that parenting skills training would . . . be of any significant benefit to [J.R.S.] since she does not believe that he would be able to apply that which was being taught.

Also, like the father, L.R., in In re Guardianship of DMH, [ 161 N.J. 365 (1999)], both parents have failed in this case to perform even minimal parenting functions with regard to their child.

Although [R.D.H.] has at least visited [M.B.D.H.], [J.R.S.] has not even done that. . . .

Additionally, according to Dr. Pesantez [M.B.D.H's] foster mother has become the child's psychological parent. If now removed from her care, Dr. Pesantez testified that the child would suffer immediate harm. She also found that the parents would not be able to mitigate this harm and that therapy would not overcome this harm. Dr. Pesantez was particularly concerned about removal of the child from the foster mother's care because she said in such a case any new caretaker would need to have a bond with [M.B.D.H.] and also would have to understand their own needs and would have to have demonstrated an ability to meet those needs. Unfortunately, Dr. Pesantez did not find these qualities in either birth parent, nor did she see in either parents' life any system of social support that would be key in any reunification effort with either one of them.

Dr. Pesantez's opinion was the only expert opinion offered at trial. It was highly credible. Even though Dr. Pesantez and Dr. Susan Lotto, the psychologist who had evaluated [R.D.H.] in March of 2003 were both retained by DYFS, Dr. Pesantez did not agree with Dr. Lotto's earlier more optimistic prognosis for [R.D.H.] Although only six months had passed since the earlier evaluation of [R.D.H.], it appears that Dr. Pesantez's concerns about [R.D.H.'s] . . . "ability to effectively parent [M.B.D.H.]" were valid. . . .

Additionally, although reduced to only once a month attendance at [Proceed, Inc.] for substance abuse, [R.D.H.] tested positive for cocaine thereafter and so the reduction in the number of days she was required to attend seems related more to the duration of the treatment program than to any demonstrated progress on the part of [R.D.H.]

* * * *

In the final analysis, the same concerns about [R.D.H.] that existed when this child was removed from her, still exist today. And the child's father has made no effort to discern his daughter's existence nor to nurture and care for her.

Therefore, this court finds that the Division has established the . . . requisites of prongs one and two by evidence that is clear and convincing. . . .

* * * *

[W]ith regard to prong three, the Division has to have made reasonable efforts to provide services to help the parents correct the circumstances which led to [M.B.D.H.'s] placement in the first place. And the court must also have considered alternatives to the termination of parental rights.

Here, the Division has made the following efforts to help these defendants.

First, it used a family friend as its initial placement for [M.B.D.H.] thereby enhancing [R.D.H.'s] access to the child because this friend could supervise visits. . . .

The Division also assessed both relatives, [B.B.] and [A.D.H.], whose names were provided by [R.D.H.] The court notes that [J.R.S.] offered no relatives as resources.

The Division provided supervised visits for the mother and offered the same to [J.R.S.] . . .

The Division also provided both parents with substance abuse treatment opportunities preceded by substance abuse evaluations. . . .

* * * *

The Division provided the mother and father with parenting skills training. The Division provided mental health evaluations for both defendants and bonding evaluations for the mother and foster parent so that the relative strengths of any bond each had with the child and the child had with them could be assessed.

That the Division's efforts have failed cannot be laid at the door of DYFS but rather to the defendants. There are, furthermore, no alternatives to termination of parental rights. Neither parent is fit to parent, according to Dr. Pesantez. No relative or family friend is both willing and able to care for [M.B.D.H.]

* * * *

Therefore, the requisites of the third prong of the best interest test have been established by clear and convincing evidence.

The fourth prong that must be established in order for the Division to prevail is that they must establish that termination of parental rights will not do more harm than good.

In this case, the evidence goes to show that in fact termination of parental rights will do more good than harm.

Dr. Pesantez said that [R.D.H.] and [M.B.D.H.] have a level of comfort with one another. However, they are not bonded with each other. She further indicated that if [M.B.D.H.] were no longer able to see her mother, the child would experience no more than a normal amount of grief as her birth parent would no longer be in her life.

On the other hand, Dr. Pesantez found the foster mother to be [M.B.D.H.'s] psychological parent. She noted the child would experience immediate harm if separated from the foster mother.

Additionally, although in the "hands of a qualified caretaker, the child may be able to get over the grief of being separated from her foster mother," neither birth parent, Dr. Pesantez opined, is a qualified caretaker. Also she noted that if removed from the foster mother, it would be impossible for [M.B.D.H.] to be placed with one, with whom she has a bond, . . . as neither parent has such a bond with her[.] . . .

On the other hand, if termination of parental rights occurs, the foster mother will be able to adopt [M.B.D.H.]

* * * *

Thus, prong four's requirements have also been established by evidence that is clear and convincing.

Accordingly, the parental rights of [R.D.H.] and of [J.R.S.] are terminated and [M.B.D.H.] is placed in the Division's guardianship.

On appeal, J.R.S. presents the following arguments for our consideration:

POINT I

THE COURT ERRONEOUSLY QUALIFIED DR. PESANTEZ AS AN EXPERT AND INCORRECTLY ADMITTED HER TESTIMONY (Raised by co-defendant).

POINT II

DYFS FAILED TO ESTABLISH THAT THE STANDARD FOR THE TERMINATION OF DEFENDANT'S PARENTAL RIGHTS WAS MET IN THIS CASE.

POINT III

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

R.D.H. advances the following argument:

POINT I

THE ORDER OF GUARDIANSHIP, WHICH TERMINATED DEFENDANT'S PARENTAL RIGHTS, MUST BE REVERSED BECAUSE DYFS DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE EACH OF THE FOUR NECESSARY PRONGS TO JUSTIFY TERMINATION OF DEFENDANT'S PARENTAL RIGHTS.

I.

We begin our inquiry by restating applicable legal principles. These principles bear replication in light of the remedy ordered by the Family Part judge.

The rights of parents to enjoy a relationship with their children is of constitutional dimension. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)); In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 403-04 (1999); New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591 (1986)). Parents have a constitutionally protected, fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). The Federal and State Constitutions protect the inviolability of the family unit. Stanley, supra, 405 U.S. at 651, 92 S. Ct. at 121-13, 31 L. Ed. 2d at 558-59; A.W., supra, 103 N.J. at 599.

"The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). As is true of so many other legal presumptions, "experience and reality may rebut what the law accepts as a starting point. . . ." Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119. The incidence of child abuse and neglect cases attests to the fact that some parents may act against the interests of their children. Ibid.

Government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Id. at 603, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119 (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State as parens patriae may act to protect children from serious physical and emotional harm. This may require a partial or complete severance of the parent-child relationship.

However, "[f]ew forms of state action are both so severe and so irreversible." Santosky, supra, 455 U.S. at 759, 102 S. Ct. at 1398, 71 L. Ed. 2d at 610.

When the child's biological parents resist termination of parental rights, our function is to decide whether the parent can raise the child without causing harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of our inquiry is not whether the parents are fit, but whether they can become fit to assume the parental role within time to meet the child's needs. Ibid. "The . . . analysis entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid. The burden rests on the party seeking to terminate parental rights "to demonstrate by clear and convincing evidence" that risk of "serious and lasting [future] harm to the child" is sufficiently great as to require severance of parental ties. Ibid.

The balance between fundamental parental rights and the State's parens patriae responsibility is achieved through the best interests of the child standard. K.H.O., supra, 161 N.J. at 347. Under that standard, parental rights may be severed when:

(1) The child's health and development have

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 foster 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).]

These standards 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. K.H.O., supra, 161 N.J. at 348. The considerations involved in determining parental unfitness are "'extremely fact sensitive'" and require particularized evidence that addresses the specific circumstances of the specific case. Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

In reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determinations and its "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). We are not to disturb the judge's findings unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

II.

R.D.H. and J.R.S. first argue that the trial court erred in qualifying Dr. Pesantez as an expert psychologist in this matter. We disagree.

Expert testimony is admitted according to the N.J.R.E. 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In order to qualify as an expert, it must be shown that the witness possesses particular skills, knowledge or training in a technical area that is not common to the world. Scully v. Fitzgerald, 179 N.J. 114, 129 (2004). A witness must possess "the minimal technical training and knowledge essential to the expression of a meaningful and reliable opinion." Hake v. Manchester Township, 98 N.J. 302, 314 (1985) (quoting Sanzari v. Rosenfeld, 34 N.J. 128, 136 (1961)).

When the subject matter of expert testimony "falls distinctly within the province of a particular profession, the witness should generally be a licensed member of that profession." State v. Frost, 242 N.J. Super. 601, 615 (App. Div. 1990), cert. denied, 127 N.J. 321 (1990). However, a professional license is not always required. Alliance for Disabled in Action, Inc. v. Cont'l Props., 371 N.J. Super. 398, 406 (App. Div. 2004) (holding that an architect did not need a license to testify to handicapped accessibility requirements); Landrigan v. Celotex Corp., 127 N.J. 404, 421-22 (1992) (ruling that an epidemiologist who was not a medical doctor was qualified as an expert to testify to the factors causing decedent's colon cancer). In fact, "an expert may be qualified by study without practice or practice without study." State v. Smith, 21 N.J. 326, 334 (1956).

Ordinarily, the competency of a witness is left to the sound discretion of the trial judge. Carey v. Lovett, 132 N.J. 44, 64 (1993). Absent a clear abuse of discretion, an appellate court will not interfere with the exercise of such discretion. Ibid.

Here, the evidence demonstrated that Dr. Pesantez had completed the requisite studies and practice to qualify her as an expert. Dr. Pesantez had studied psychology extensively, including earning a B.A. in psychology from Rutgers University, and an M.A. in psychology and a Psy.D. in clinical psychology from Indiana University of Pennsylvania. Dr. Pesantez also had eight years of psychology-related work experience involving both adults and children.

Dr. Pesantez had completed 1,750 clinical hours in psychology, sat for the New Jersey written exam for licensing as a psychologist, and anticipated taking her New Jersey oral exam to complete certification. For three years, she had possessed a temporary permit, which was extended to allow her to continue to practice in New Jersey under the supervision of a licensed New Jersey psychologist. Dr. Pesantez also possessed experience conducting the type of psychological and bonding evaluations that she performed on R.D.H., M.B.D.H., J.R.S., and the foster mother, having performed sixty to seventy such evaluations. Additionally, New Jersey courts had qualified her on two previous occasions to serve as an expert witness in termination of parental rights cases.

In Frost, supra, 242 N.J. Super. at 616, we affirmed the trial judge's ruling qualifying psychologist Judith Kabus as an expert on battered woman syndrome. Dr. Kabus had held a B.A. in psychology, a M.A. in counseling, and was at the dissertation level of her Ph.D. in marriage and family counseling. Ibid. She was the director of clinical services at a women's resource and survival center, overseeing a team of six counselors who held M.A.'s in social work. Ibid. Prior to her position as director, she served as a counselor at an adult school and had assisted several clients who were victims of domestic violence. Ibid. The trial judge determined that Dr. Kabus was qualified based upon her educational background, her years of experience, the number of studies she performed, and the number of people she had counseled. Id. at 616-17.

Here, for similar reasons, the trial judge chose to qualify Dr. Pesantez as an expert. The trial judge stated that it was Dr. Pesantez's degrees in psychology, coupled with the fact that she was a permit holder that qualified her as an expert. The trial judge added that Dr. Pesantez had completed all of her therapy and case management hours pertinent to her education and that the taking of an examination would not necessarily add anything to her education. Although the judge indicated that a licensure is some indicia of professional authority, the judge did not believe the lack thereof should prevent Dr. Pesantez from qualification as an expert.

R.D.H. and J.R.S. also assert that Dr. Pesantez presented no qualifications showing that she had experience in administering and interpreting psychological tests. However, the record clearly reflects that Dr. Pesantez had performed sixty to seventy similar evaluations in the past. Furthermore, her qualification by the trial judge as a psychological expert logically encompasses the interpretation of psychological tests. We find no misapplication of discretion by the trial court in qualifying Dr. Pesantez as an expert in psychology.

III.

J.R.S. argues that he received ineffective assistance of counsel. We disagree.

Our Legislature has provided that parents in a termination of rights case have the right to assistance of counsel if they are unable to afford it. N.J.S.A. 30:4C-15.4(a). It is crucial that the assistance provided to indigent parents constitute effective assistance. "Simple justice demands nothing less in light of the magnitude of the consequences involved." New Jersey Div. of Youth and Family Servs. v. E.B., 264 N.J. Super. 1, 6 (App. Div. 1993).

In evaluating a claim of ineffective assistance of counsel, the initial inquiry is what level of performance is required by counsel. In search of a standard, J.R.S. advances the criminal standard articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). He argues that this standard should apply because a termination of parental rights proceeding is "quasi-criminal" in nature. Some jurisdictions have accepted Strickland as the standard for ineffective assistance of counsel claims in cases terminating parental rights. See In the Interest of D.W., 385 N.W.2d 570, 579 (Iowa 1986); In the Interest of K.M.H., No. 14-0400458-CV, 2 005 Tex. App. LEXIS 5482 at *6-7 (Tex. Ct. App. July 14, 2005); cf. State v. Anonymous, 425 A.2d 939, 942-43 (Conn. 1979) (rejecting the Strickland standard in favor of a reasonable competence standard); In re A.S., 87 P.3d 408, 415 (Mont. 2004) (rejecting the Strickland standard in favor of a weighing of the non-exclusive factors of training, experience, and advocacy).

In New Jersey, we have responded to the ineffective assistance of counsel arguments in termination of parental rights cases by applying the Strickland standard. See New Jersey Div. of Youth and Family Servs. v. V.K., 236 N.J. Super. 243, 256-57 (App. Div. 1989). Accordingly, we address the defendant's argument, as presented, under Strickland.

In order to establish a claim for ineffective assistance of counsel under Strickland, a defendant must satisfy a two-prong test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. at 695.

Effective assistance should be measured by a standard of "reasonable competence." State v. Fritz, 105 N.J. 42, 60-61 (1987). That standard does not require "the best of attorneys," but simply requires that attorneys not be so ineffective "as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

In support of the first prong of the test, J.R.S. argues that counsel failed to obtain an independent psychological evaluation, which could have been used to counter Dr. Pesantez's findings. Although a defense psychological evaluation may have been helpful, J.R.S.'s counsel had arranged for three such psychological evaluations, all of which J.R.S. had failed to attend. We also note that R.D.H.'s defense evaluations were scheduled and re-scheduled multiple times, presumably because of her failure to appear.

Second, J.R.S. contends that his counsel should have objected to the qualification of Dr. Pesantez as an expert when given the opportunity. However, we have already concluded that the trial judge properly admitted the expert testimony of Dr. Pesantez, and J.R.S. provides no persuasive information or legal theory to demonstrate that determination was erroneous or would have been different.

J.R.S. further argues that J.R.S.'s attorney had submitted an inadequate summation of his case at the close of trial. Again, J.R.S. fails to demonstrate how a more forceful or comprehensive summation would have produced a different result.

IV.

Finally, R.D.H. and J.R.S. argue that the Division failed to prove by clear and convincing evidence the presence of the four-prong criteria set forth in N.J.S.A. 30:4C-15.1a for termination of their parental rights. We disagree, and affirm substantially for the reasons articulated by Judge Spatola in her comprehensive oral decision delivered on March 21, 2005. The findings and conclusion of the judge are supported by substantial, credible evidence contained in the record. Viewing the record in its totality, we conclude that each of the four-prong criteria for the termination of the parental rights of R.D.H, and J.R.S. has been established by clear and convincing evidence.

Affirmed.

 

(continued)

(continued)

36

A-4230-04T4

RECORD IMPOUNDED

October 21, 2005