DIVISION OF YOUTH AND FAMILY SERVICES v. J.G.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2254-05T42254-05T4

A-2255-05T4

DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.G.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF J.N.G. and J.D.G.,

Minors.

DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.G.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF J.N.G. and J.D.G.,

Minors.

 
Submitted September 13, 2006 - Decided October 19, 2006

Before Judges Parrillo, Hoens and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-74-05.

Yvonne Smith Segars, Public Defender, attorney for appellant J.G., Docket No. A-2254-05T4 (Alison Perrone, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant D.G., Docket No. A-2255-05T4 (Thomas G. Hand, Designated Counsel, of counsel and on the brief).

Anne Milgram, Acting Attorney General, attorney for respondent, Docket Nos. A-2254-05T4 and A-2255-05T4 (Michael J. Haas, Assistant Attorney General, of counsel; Lisa B. Landsman, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for respondents J.D.G. and J.N.G. minor child-respondents, Docket Nos. A-2254-05T4 and A-2255-05T4 (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

We consolidate these separate appeals for the purpose of addressing them in this opinion. In the first appeal (A-2254-05T4), Jerome G., the natural father of the two minor children, Julia and Jason, appeals from the November 7, 2005 order and judgment of the Chancery Division, Family Part, terminating his parental rights to the two children and placing them in the care and under the guardianship of the New Jersey Division of Youth and Family Services (DYFS) for all purposes. He asserts that DYFS failed to carry its burden of proving, by clear and convincing evidence, three of the four statutory criteria required for termination of his parental rights. In particular, he contends that DYFS failed to demonstrate that he is unable to overcome the harm caused to the children while in his care, that DYFS failed to offer meaningful services to facilitate his reunification with the children, and that DYFS failed to demonstrate that termination of his parental rights would not do the children more harm than good.

In the second appeal (A-2255-05T4), Darlene G., the natural mother of the two minor children Julia and Jason, appeals from the same order, asserting that the trial judge erred in permitting DYFS to rely on opinions of experts who were not called to testify and that DYFS failed to carry its burden of proof on three of the four statutory requirements. We disagree with the arguments raised in each of these appeals and we affirm.

The following facts are derived from our review of the record on appeal. Jerome and Darlene are the natural parents of four children. DYFS first received a referral about the family in April 1999, when Darlene was pregnant with Julia, their third child. That referral raised allegations about drugs in the home, angry behavior by Jerome that threatened the safety of the family, and neglect of the couple's two oldest children. As a result, approximately one month after Julia's birth on July 26, 1999, Darlene signed a case plan in which she agreed to accept homemaking services from DYFS, to take Julia to all of her medical appointments, and to apply for WIC benefits for Julia. In spite of that agreement, Darlene and Jerome failed to take Julia for routine medical care.

Julia was first seen by Dr. Kottahachchi, a pediatrician, in November 1999, by which time she was three months old. The records of that visit note that she was quite small for her chronological age and do not reveal that any routine immunizations were or had been given to her. Julia was not seen again by Dr. Kottahachchi until April 2002.

Julia was, however, seen by Dr. Virgilia Nebab, another pediatrician, in June 2000, when she was nearly a year old. According to Dr. Nebab's records, Julia suffered from poor growth and delays in her gross motor development. Julia still had not received any routine immunizations, and they were first administered by Dr. Nebab at the June 2000 visit. In addition, Dr. Nebab directed that Julia be taken for routine lab tests and recommended that Julia begin to receive early intervention services. The doctor also scheduled a return visit for Julia for September 2000. Darlene and Jerome did not take Julia for the lab tests, did not follow up with the recommendation for early intervention services and failed to take the child back to the doctor for the September visit.

Julia was not taken back to Dr. Nebab until April 2002. When Dr. Nebab saw Julia at that visit, she contacted DYFS and reported that the child had not been seen for medical care for two years; that she was severely underweight; that her routine vaccinations were not current; that her parents had not followed up on the recommendation that she receive early intervention services; and that she was suffering from failure to thrive.

Shortly after the April 2002 referral, DYFS began to provide additional services for the family. A Child Health Nurse from DYFS assessed Julia and recommended that she be enrolled in a pre-school program. Darlene and Jerome did not do so. In May 2002, Dr. Elizabeth Hodgson evaluated Julia at the request of DYFS. She noted that Julia had been seen by a doctor only three times during her thirty-four months of life, as compared to the recommended eight to ten routine visits for a child. In addition to noting that the child was significantly behind in her immunizations, Dr. Hodgson found that Julia, who was then nearly three years old, was the size of an average eight-month-old child and that it was possible that she was suffering from developmental delays. During Dr. Hodgson's June 2002 meeting with Darlene and Jerome to discuss her findings and recommendations, Jerome insisted that the child had no medical problems. He became so enraged about the doctor's contrary view that he had to be escorted from the building. Dr. Hodgson testified that Jerome's outburst, which took place in Julia's presence, frightened the child and caused the child to have a "real emotional meltdown."

Dr. Hodgson referred Julia for evaluation by Dr. Salas, the Chief of Pediatric Endocrinology at St. Peter's Hospital, in June 2002. When Darlene and Jerome followed up with that referral by taking the child to see that doctor in December 2002, Dr. Salas observed that Julia had not grown at all in approximately nine months, a fact he referred to as "very worrisome" and "abnormal." He recommended that a variety of diagnostic tests be performed and suggested that Julia might benefit from treatment with human growth hormone. Darlene and Jerome failed to take Julia for most of the requested diagnostic tests in spite of several reminders from their DYFS caseworker that they needed to do so.

On September 24, 2002, Jason was born. Because he was born prematurely, he weighed only two pounds at birth and remained in the hospital until November 2002. In February 2003, Darlene and Jerome took Jason back to the hospital, asserting that the child was unable to take formula and that he vomited after being fed even a small amount. They told hospital personnel that they had not taken Jason to see a pediatrician because they were having difficulty with their medical insurance. When Jason was seen at the hospital, he was severely malnourished and it was discovered that he had gained only one pound since his release in November 2002. He was admitted to the intensive care unit where the staff reported no difficulty feeding him and where he began to gain weight quickly.

During a February 14, 2003 conversation with a DYFS caseworker, Darlene admitted that she had a significant memory problem and blamed her poor memory for the lack of adequate care that the couple had provided for Jason. During the same conversation, Jerome apologized for his earlier angry outburst and blamed Darlene for the lack of care given to Jason. Shortly thereafter, Darlene and Jerome agreed to a case plan and DYFS obtained custody of both Julia and Jason. The two children were placed in a facility for medically fragile children in April 2003. While in that placement, Julia began to grow, but she remained delayed in her development.

During a comprehensive child study team evaluation performed in the summer of 2003, the evaluators concluded that Julia was cognitively delayed, lacking in appropriate boundaries and more likely than other children to internalize behavior problems. The evaluators concluded that she was at risk for development of Reactive Attachment Disorder (RAD). In January 2004, Julia's treating psychologist diagnosed Julia as suffering from RAD, and concluded that it was caused by the poor care she had received from Darlene and Jerome.

In February 2004, Dr. Salas concluded that Julia's growth was still inadequate and he recommended that she begin treatment with human growth hormone. When Jerome objected to the doctor's suggestion concerning human growth hormone, DYFS arranged for an evaluation to be performed by another doctor. In May 2004, Dr. Singer-Granick concurred with the recommendation. Jerome continued to express concerns about the therapy and DYFS arranged for him to meet with Dr. Salas to discuss the treatment. According to Dr. Salas, the meeting did not result in a dialogue or an exchange of medical information because Jerome was intent on rejecting the recommendation regardless of the medical and psychological benefits it would offer Julia. During the same time frame, Jason was diagnosed as suffering from failure to thrive, a heart murmur and other medical conditions.

The children were transferred to a foster home in April 2004, where they have remained throughout the proceedings. DYFS arranged for Darlene and Jerome to have therapeutic visitation with the children, which was supervised by Dr. Linda Tamm. As part of that referral, Dr. Tamm worked extensively with Darlene and Jerome, providing them with individual parenting skills training and therapeutic services. At trial, Dr. Tamm expressed concern that during the therapeutic visitation sessions, Darlene and Jerome did not interact with each other and with Julia and Jason as a family. She conceded that Darlene and Jerome made progress during the year she treated them but expressed a concern about whether they could ever make enough progress to adequately parent the children. Although she noted that, with enough time, they "could possibly" do so, she could not estimate how much longer they would need to be in therapy to even "possibly" function as parents. Dr. Tamm also testified that Jerome's statement to her that physical punishment was the only effective method of punishing children and that he believes that children should "fear" their parents raised a concern in her mind about his ability to parent.

In addition to the expert testimony presented during the trial by Dr. Hodgson and Dr. Tamm, DYFS also called Dr. Frank Dyer to testify. Dr. Dyer, a licensed psychologist, testified about his evaluation of Jerome and Darlene as well as the results of his bonding evaluations. In relevant part, Dr. Dyer, who had conducted two interviews of Jerome as described in two expert reports, concluded that Jerome exhibited narcissistic and anti-social traits along with characteristics of a borderline personality disorder. According to Dr. Dyer, these diagnoses pose a "formidable obstacle" to successful treatment because of the interplay between the individual's sense of entitlement and grandiosity and the associated traits of being exploitative, manipulative, contemptuous of rules and of authority, and vulnerable to intense emotional outbursts.

In particular, Dr. Dyer noted that Jerome denied that he was in any way responsible for the condition of the two children, instead blaming Darlene for failing to attend to their needs. In addition, Jerome told Dr. Dyer that he suffers from bi-polar disorder which he contended he was managing with therapy and medication, but he conceded that he felt victimized by DYFS and that he had a history of being fired from jobs because of his angry outbursts. Jerome also told Dr. Dyer that he distrusted the medical profession and objected to the treatment plan for Julia because he believed that treatment for her was unnecessary.

Dr. Dyer also testified about his evaluation of Darlene. He noted that she had a history of memory problems and agoraphobia, and he described her as "dependent," "very compliant" and "submissive" in her relationship with Jerome. Dr. Dyer characterized her prognosis as "guarded" in terms of her ability to overcome or adapt to her significant memory problems. Although DYFS had provided her with professional assistance in addressing that deficit, her progress was inadequate. In light of the fact that Darlene blamed her poor memory for the neglect of her children, Dr. Dyer saw little likelihood of improvement in her ability to care for them. In addition, Dr. Dyer noted that there was an "extreme power imbalance in the[] relationship between [Jerome and Darlene, where] one spouse who is very assertive, emotionally volatile and aggressive at times, very outspoken, highly intelligent and another spouse who tends to be phobic, passive, submissive and compliant." Because of that dynamic in the relationship, Dr. Dyer opined that Jerome's contempt for the medical profession and for DYFS personnel would overcome Darlene and that Darlene would eventually join in his views to the detriment of the safety and well-being of the children.

Dr. Dyer concluded that both Jerome and Darlene had a "poor prognosis" for being able to function competently as parents for these children and that they each had "psychological handicaps" that would interfere with their ability to parent the children effectively. In particular, he noted that Jerome's emotional volatility, inability to accept responsibility for the children's condition and contempt for medical and DYFS personnel would make it "extremely difficult" for any professional to work with him for the benefit of the children were they to be returned to him and Darlene.

In addition to his evaluations of Jerome and Darlene, Dr. Dyer performed bonding evaluations. He observed a "positive emotional connection" between Jerome and Darlene and the children, which he attributed to the regular visitation that had been taking place. In his evaluation of the bonds between the children and their foster mother, Dr. Dyer noted that the children showed a "high degree of emotional responsiveness" and he described them as being attached to their foster mother. That attachment was particularly significant in light of the length of time that they had spent in the facility for medically fragile children, which left them at risk for RAD. Dr. Dyer opined that the children had "blossomed emotionally" in the time since they were placed in their foster home and that removal of the children from that home would be a "traumatic loss" with severe consequences for them.

Jerome and Darlene also testified at the trial. Jerome denied having met with Dr. Dyer on two occasions, essentially asserting that Dr. Dyer's report of the first session was fabricated. He expressed surprise that the records showed so little routine medical care for Julia and contended that he had left that aspect of parenting to Darlene. He asserted that he was "shocked" when he learned that Dr. Nebab was contacting DYFS about Julia because he had not noticed any delay in her development. He testified that he had been concerned about Jason's slow growth and ability to take formula, pointing out that these concerns were the reason that he and Darlene took Jason to the hospital in February 2003. Jerome also addressed the subject of corporal punishment, acknowledging that he spanked or hit each of the three oldest children. He testified that, after the therapy sessions with Dr. Tamm, he did not intend to hit any of his children again.

Darlene testified as well. She asserted that Julia was small at birth and that no one commented about it at the time. She admitted that she had missed medical appointments that were scheduled for Julia but testified that Julia's small size did not concern her. She described the therapy that DYFS had provided for her to assist her in addressing her memory deficits and she also described parenting classes and couples counseling that she and Jerome had received. Darlene and Jerome presented two other fact witnesses, a family friend and their pastor, but did not call any experts to testify on their behalf.

Based on this testimony and evidence, Judge Longhi set forth his findings of fact and conclusions of law on the record on November 7, 2005. In summary, he concluded that DYFS had proven each of the four statutory elements required for an order terminating Jerome's and Darlene's parental rights by clear and convincing evidence.

We first address the argument Darlene has raised on appeal that she was deprived of due process and equal protection because DYFS was permitted to offer into evidence the reports of two experts who did not testify. Specifically, she contends that reports prepared by Dr. Salas and Dr. Andrew Brown and references to those reports by other witnesses called by DYFS should not have been permitted. In addition, she asserts that the failure of DYFS to expunge from its records prior unsubstantiated allegations of abuse and neglect, referred to in Brown's report, deprived her of due process. We reject these arguments as being without merit.

Reports prepared by DYFS personnel or experts may be offered into evidence as part of the proofs offered in its prima facie case. See R. 5:12-4(d); In re Cope, 106 N.J. Super. 336, 343-44 (App. Div. 1969). Because the reports prepared by Dr. Salas and Dr. Brown fall squarely within this rule, their admission was permissible. Due process required only that Darlene be afforded an opportunity to offer expert testimony or to otherwise challenge the contents of those reports. Her failure to avail herself of that opportunity, however, does not alter the admissibility of the reports themselves. Nor do we discern any error in the reference to a prior unsubstantiated incident of abuse and neglect. Our review of the record demonstrates that a single prior incident, involving one of the couple's older sons, was mentioned, but that the incident played no role in Judge Longhi's analysis of the issues.

In addition, on appeal both Jerome and Darlene challenge the trial judge's findings and conclusions on three of the four elements of the statutory test for termination of parental rights. In summary, they argue that the judge erred in finding that DYFS had carried its burden on the second statutory element because they have made progress in addressing the issues and circumstances that led to the children's removal. In particular, Jerome points to testimony to the effect they "could possibly become fit" if given sufficient time and services, an opinion he asserts is consistent with this court's analysis of the meaning of this aspect of the statute. See New Jersey Div. of Youth and Family Services v. F.M., 375 N.J. Super. 235, 262-63 (App. Div. 2005).

Both Darlene and Jerome argue that the judge erred in his finding on the third element of the statute, asserting that DYFS failed to provide them with meaningful services and supports to assist them in overcoming their deficits as parents. In particular, Darlene offers a lengthy list of additional services that she now asserts might have been of assistance to her, contending, for example, that transporting her to the doctor with the children would have ensured that they received proper care. Finally, both Darlene and Jerome challenge the trial judge's finding that termination would not do more harm than good, arguing that the expert opinions that they have a positive bond with the children, coupled with their desire to be reunited with the children are alone sufficient to overcome the contrary evidence on which the judge relied.

An appellate tribunal's review of the factual findings of a trial judge sitting without a jury is limited. The appellate court reviews the record to determine whether the findings are supported by substantial, credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The Appellate Division also accords considerable deference to a trial judge's credibility determinations. Cesare, supra, 154 N.J. at 412 (citing In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Thus, if the judge's factual findings are supported by the evidence, the appellate court should not disturb them. Rova Farms, supra, 65 N.J. at 484. In particular, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)(citations omitted). It is well established that a trial court's conclusions of law are subject to plenary review. Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

The right to parent one's own child is fundamental and constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)(citations omitted). However, that right is not absolute and must yield to protect a child's welfare. See New Jersey Div. of Youth and Family Servs. v. B.G.S., 291 N.J. Super. 582, 591 (App. Div. 1996). "Notwithstanding their profound nature, parental rights are not inviolate when a child's physical or mental health is jeopardized." Ibid. (citing New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986)). However, New Jersey courts have "consistently imposed strict standards for the termination of parental rights." K.H.O., supra, 161 N.J. at 347. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children. The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid. (citations omitted). These standards which are now codified in the statutory four part test, see N.J.S.A. 30:4C-15.1(a), are not discrete but are to be applied in light of the particular facts and circumstances in the record.

Applying these familiar principles to the record before us, we find no ground on which to interfere with Judge Longhi's findings of fact or conclusions of law. The record reflects that both Jerome and Darlene have significant psychological deficits that have not only interfered with their ability and willingness to provide basic medical care to these children but that have also clouded their appreciation for the severity of the harm that these children have endured while in their care. Moreover, as Judge Longhi noted, Dr. Tamm, the professional who has worked most closely with Jerome and Darlene, could not say that they would ever make enough progress in achieving parenting skills to be able to parent these children. Although it is true that Dr. Tamm testified that with enough time they might "possibly" be able to parent these children, our decision in F.M., supra, does not permit for an open-ended period of time within which parents may continue to address their fundamental deficits. On the contrary, in F.M. we held that where only a short additional time in therapy or training would be needed for the parent to complete therapy so as to be capable of parenting the child, permitting it might be appropriate. See F.M., supra, 375 N.J. Super. at 262-63. There is no evidence in the record that Darlene and Jerome will ever be able to achieve that level of ability to parent.

The record further reflects that, contrary to the arguments raised by Darlene and Jerome, DYFS offered them a wide variety of services and supports, including extensive therapy with Dr. Tamm that included one-on-one parent training and assistance through supervised visitation. Contrary to their arguments, DFYS investigated numerous alternatives to foster home placement, reviewing placement with several family members and friends, each of whom either declined to provide assistance for the children or was found to be unsuitable.

Finally, there is substantial support for the judge's finding that termination will not do more harm than good. The evidence is overwhelming that these children were severely malnourished while in the care of Darlene and Jerome to the point of extreme impact on their growth and development. There is substantial evidence in the record to support Judge Longhi's observation that if these children are returned to their parents that Jerome and Darlene will revert to their belief that the children are not in need of medical care and that they will again be deprived of even the basic care that they require. The record is plain that the children have flourished while in the care of their foster home and that removing them from that environment will indeed be traumatic.

Based on our review of this record, we are satisfied that Judge Longhi's findings of fact are supported by substantial credible evidence and that those facts establish, as he concluded, that DYFS proved each part of the statutory test by evidence that is both clear and convincing.

 
Affirmed.

"Jerome" and "Darlene" are fictitious names for the two parents, J.G. and D.G., who are involved in this appeal. "Julia" and "Jason" are fictitious names for J.N.G. and J.D.G., the two minor children involved in this appeal. Because the initials of the parents and the children are similar, we have elected to use these fictitious names for the sake of clarity only.

The trial which forms the basis for this appeal related only to the two youngest children, Julia and Jason. By the time of the proceedings, the oldest of the couple's children had reached the age of majority. DYFS made no allegations as to the couple's second oldest child, Jerome, Jr., who continues to reside with Jerome and Darlene.

Darlene and Jerome also blamed a lack of health insurance for the limited medical care that Julia received. DYFS arranged for the children to qualify for Medicaid during the pendency of the proceedings.

We are aware of Darlene's argument that the statute that requires expungement of unfounded allegations, N.J.S.A. 9:6-8.40a, should be interpreted to require expungement as well of allegations that cannot be substantiated. We need not reach this question of statutory interpretation because the single prior incident referred to played no role in the trial judge's decision.

Darlene addresses the first of the four prongs in her brief as a part of her argument on the second element of the test. She contends, however, that her failure to take the children for medical care was caused by her memory deficits and asserts that she has made sufficient progress in addressing that deficit to overcome the potential harm to her children. We interpret this argument to be addressed only to the second aspect of the statutory test rather than to be an assertion that failure to attend to the children's medical care, under the circumstances that ultimately led to the children's removal, does not equate with harm consistent with a finding on the first statutory prong.

(continued)

(continued)

21

A-2254-05T4

RECORD IMPOUNDED

October 19, 2006