NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.P.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4224-05T44224-05T4

A-4230-05T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.P. and M.F.,

Defendants-Appellants.

______________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF L.P., N.P. and D.F.

Minors.

______________________________________

 

Submitted: October 12, 2006 - Decided November 20, 2006

Before Judges Stern and A. A. Rodr guez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, FG-17-35-05.

Yvonne Smith Segars, Public Defender, attorney for appellants (Michael C. Wroblewski and William J. Sweeney, Designated Counsels, on the briefs).

Stuart Rabner, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Jennifer A. Lochel, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minors L.P., N.P. and D.F. (Lisa C. Castaneda, Assistant Deputy Public Defender, on the brief).

PER CURIAM

C.P., the birth mother of L.P., a girl now aged six, N.P., a boy now aged four, and D.F., a boy now aged twenty-two months, appeals from the judgment of the Family Part, terminating her parental rights over these children. M.F, the birth father of D.F., also appeals from the same judgment. T.J., the birth father of L.P. and N.P., defaulted and has not participated in this litigation. The Division of Youth and Family Services (DYFS) and the Law Guardian for the children urge affirmance. Based upon our careful review of the record, we conclude that the judgment should be affirmed.

These are the salient facts. When L.P. was born, her birth parents were not living together. In March 2002, when L.P. was two years old, C.P. moved in with T.J. for four months. During this time, she became pregnant with N.P. While living with T.J., C.P. observed him force feed L.P., put her head under the water when bathing her, and pull her out of the tub by her hair. C.P. also saw T.J.'s six-year old son put his hands down L.P.'s pants. C.P. and L.P. moved out approximately two months following these observations.

In May 2003, C.P. moved in with M.F. and his brother. Three months later, the Center for Family Services evaluated M.F. and determined that, "M.F. meets DSM IV criteria for diagnosis 303.90 alcohol dependence, 304.30 cannabis dependence in remission and 304.20 cocaine dependence in remission."

Six months later, DYFS received a referral from a staff member at L.P.'s pre-school. L.P. reported that M.F. touched her "private parts" with his mouth while her mother was present. According to L.P., she had her clothes off, but M.F. kept his clothes on.

A DYFS worker and a police detective questioned L.P. When C.P. was confronted, she responded that "[L.P.] has a big imagination." When DYFS informed her that M.F. needed to stay away from her children, C.P. responded that he has nowhere to go and it is his apartment. That same day, C.P. signed a "Fifteen Day Consent to Place Children in Foster Care or with a Relative." DYFS then placed L.P. and N.P. with their maternal grandparents. Four months after L.P. and N.P. were placed, C.P. informed DYFS that the grandparents were complaining that they could no longer handle the children. C.P. also reported that her parents spanked L.P. with a paddle. DYFS found the allegation to be unsubstantiated. However, DYFS placed L.P. and N.P. in non-relative foster care at the request of the grandparents.

DYFS filed an abuse and neglect complaint against C.P. and M.F. Judge Harold U. Johnson, Jr. signed an order to show cause granting DYFS custody, care and supervision of L.P. and N.P. Judge G. Thomas Bowen conducted a fact-finding hearing. He found, by a preponderance of the evidence, that C.P. and M.F. abused or neglected the children. Specifically, he found that:

M.F. placed his mouth on L.P.'s private parts. C.P. did not take any action to prevent M.F. from being in the continued presence of L.P. The mother failed to protect her child from M.F.

Afterwards, C.P. gave birth to D.F., who suffers from several medical problems. Judge Bowen signed an order to show cause, granting DYFS custody, care and supervision of D.F. On February 23, 2005, Judge Johnson held a permanency hearing. The judge found that it was not safe to return the children to C.P. in the foreseeable future, and that DYFS had made reasonable attempts to reunify the children and their birth parents.

Patty Vitale, M.D., M.P.H., F.A.A.P., completed a sexual abuse evaluation of L.P. Dr. Vitale engaged her in a discussion about her "private parts." The conversation, in pertinent part, went as follows:

"Who's allowed to take care of your private parts?" She stated, "Nobody." I said, "what about you? Aren't you allowed to touch your private parts?" She said, "[M.F.] does. N.P. takes care of his."

Additionally, L.P. stated that this discussion was too scary. Dr. Vitale determined that L.P. is fearful about disclosing any inappropriate sexual touching. However, she noted that this was not unusual behavior for a young child.

Pamela Kane, Ph.D., a Psychologist, did a psychological evaluation. While playing with puppets, L.P. showed aggressive behavior which seemed uncharacteristic. Dr. Kane noted the puppets seemed to act roughly. She followed up by asking L.P. if she knew any rough people. After some discussion, L.P. said "some grown-ups are rough." When asked what grown-ups were rough, she replied, "Mommy." Further, she said her mother and sometimes "Nana" hit her. She also said that her "three dads beat her" with belts. The dads were identified as M.F., T.J., and someone in her biological father's family. Dr. Kane told L.P. that she heard M.F. did something else to her. L.P., in response, stated that her grandparents told her she was not allowed to tell. The conversation went as follows:

[L.P.] said "[that grandma] said 'Mommy told me - she said don't' tell' Mommy saw [M.F.]." The examiner asked "Saw [M.F.] do what?" [L.P.] replied "He spanked me - in my mouth." The examiner asked "Mommy saw [M.F.] spank you in your mouth?" She said "Mommy saw him." The examiner asked "What did mommy see [M.F.] do?" [L.P.] said "He put his mouth on me." [L.P.] was asked "Where?" She replied "On my part." She asked "What part?" and replied "M[y] private." [L.P.] was asked if she could show what her private is and pointed to her genital area. The examiner asked "Mommy saw [M.F.] put his mouth on your private?" She answered "She said, '[M.F.], stop that!'" Further, gradual questions led L.P. to report that [M.F.] had clothes on and [L.P.] had clothes on, but [M.F.] took her to Mommy's bathroom. She demonstrated as though pulling pants down and off on a puppet. She spontaneously talked of [M.F.] smoking cigarettes and drinking beer. [L.P.] grew quiet.

On their last meeting, L.P. told Dr. Kane that her mom told her that M.F. had a surprise for her, but "she can't tell me what it was I have to come home to get it."

Dr. Kane concluded that "[L.P.] knows that her mother does not want her to tell this information" and that "[C.P.] discounts [L.P.'s] disclosure of abuse by [M.F.] and tries to connect it to past physical abuse by [L.P.'s] biological father." Dr. Kane opined that L.P. connects physical abuse with T.J. and M.F., and sexual abuse only with M.F.

Cheryl C. Pride, LCSW, PC, provided therapy to L.P. According to Pride, L.P. continues to confirm M.F.'s sexual misconduct with her. Additionally, L.P. continues to confirm that this took place in C.P.'s presence. L.P. also asserted that she was fearful of M.F. Pride concluded that "This child has been traumatized, and it will take time for her to feel safe and secure again."

DYFS filed a complaint to terminate the parental rights of C.P., M.F. and T.J.

Subsequently, the grandparents requested the return of L.P. and N.P. DYFS "ruled them out given they had asked the children to be moved previously, and [the grandparents] had various health difficulties." Additionally, "Dr. Kane and Cheryl Pride were concerned about the children being cared for by the maternal grandparents because of their past history of abuse, in particular the maternal grandmother being sexually abused by her father, who in turn sexually abused C.P. when she was a child."

Judith Rogers, a DYFS Supervisor, testified at trial and explained the family history with DYFS. According to Rogers, C.P. and M.F. were offered numerous services, including therapy and parenting classes. DYFS offered "psychological services" by the following physicians: (1) Dr. Kane, (2) Dr. Barr, and (3) Dr. Sheryl. Rogers testified that C.P. and M.F. were not compliant with these services; however, they did attend some of the services. She also testified about evaluations made at DYFS' request by Roger T. Barr, Ed.D, a psychologist. He completed individual psychological evaluations of M.F. and C.P. With respect to M.F., Dr. Barr concluded after a clinical interview and testing, that the results of the Million Clinical Multiaxial Inventory - III (Million test) "strongly suggested that M.F. did not accurately grasp the severity of his drinking and its clear-cut effects on his life." With respect to C.P., Dr. Barr determined:

[C.P.] has personality factors associated with defensiveness and denial, formation of superficial and short-lived relationships, and an over emphasis of her needs in comparison to others [C.P.] anticipated maintenance of her relationship with [T.J.], who was brutally abusive to [L.P.] and with domestic violence against [C.P.], minimal participation in [L.P.'s] life, a separation after which he irresponsibly absconded, abandoning [C.P.] and two young children. While these serious relationship problems do not exist in her relationship with [M.F.], as reported by her, [C.P.], nevertheless, minimizes and downplays clear indications of [M.F.'s] alcoholic drinking and subsequent effects.

Dr. Barr opined that M.F. and C.P. do not grasp the severity of their problems. Dr. Barr did not endorse placement of L.P., N.P. or D.F. in the care and custody of M.F. and C.P.

Scott R. Schafer, LPC, LMFT, provided M.F. with individual counseling. Dr. Shafer's summary of their counseling stating:

[M.F.'s] position that [L.P.] is a habitual liar whom he distances himself from in the home, raises ominous concerns as to negative ramifications if they were ever to be in a same home.

Dr. Schafer opined to DYFS that M.F. was not benefiting from treatment because he continually denied any maltreatment of L.P.

C.P. testified. She continued to deny that it was M.F. However, she did indicate that she suspected T.J. may have been the person that actually sexually abused L.P. She never witnessed or knew of any sexual inappropriateness by T.J., however, T.J. was abusive to her and L.P. She did witness him force feed L.P., put L.P.'s head under water when bathing her, as well as pull her out of the tub by her hair. C.P. never reported any of these incidents to the police.

C.P. testified that she planned to stay with M.F., despite knowing that it was an impediment to having her children returned to the home. In fact, she stated that she remained with M.F. to prove to DYFS "that I knew it was not true . . . ." Moreover, she stated that she resided with M.F. although she knew that if they separated, she would have a good chance to have her children returned. When asked why she did not leave and go with her children to her parents house she stated:

I had my own place. I didn't need to move in - back in with my parents when I had my own place to provide for my children and for myself.

In response to why she gave up L.P. and N.P., she stated:

Because [M.F.] was the head of the household at the time with the job and right at that time[sic], I was still on Worker's Comp, so .

M.F. testified that he and L.P. had moved to Pennsylvania to live with his father. M.F. acknowledged that the children would not be permitted to return to them while they lived with his father because his father had a criminal history of sexually abusing M.F.'s sister. However, he had been saving money and planned to get a "motel or find an apartment as soon as possible," after the children were returned.

M.F. admitted to being found guilty of making terroristic threats to the mother of his first child, with whom he had no relationship. He threatened to burn down her house, kill her and kidnap their son. There is a restraining order against him at this time. M.F. admits to having DWI convictions.

Linda Jeffery, a psychologist, evaluated both C.P. and M.F. Dr. Jeffery was the only expert to testify at trial. She also conducted two bonding evaluations: (1) of C.P. with L.P. and N.P.; and (2) of C.P. and M.F. with D.F. Dr. Jeffery opined that:

[C.P.] has significant emotional and personality problems that seriously decrease her parenting capacity. It is highly unlikely that she would be able to provide a consistent and reliable basis for fundamental parenting functions of nurturing, protection, stability and guidance.

Dr. Jeffery testified that the results of the Million test showed C.P. is:

[E]xperiencing a moderately severe mental disorder that may require ongoing clinical care. She is a poor candidate for therapy because she is likely to have difficulties with trust. She is likely to be moody, critical, irritable, and mistrusting. She often elicits and expects negative reactions from other people. She had difficulties with emotional liability, bouts of impulsivity, depressive problems, and sulking. She is likely to be difficult to live with, to cause difficulties for those around her, to be resentful and demanding, and to be hypersensitive to criticism. She is likely to display frequent immature behavior and to be unreliable with a low frustration tolerance. She is likely to display brief and intense emotions, and to be attention seeking. She is likely to display anxiety symptoms that may be expressed in anger and resentment. She may criticize and manipulate others in order to deal with her own emotional problems. She reported problems with fatigue, sleeping difficulties, interpersonal tenseness and isolation, emotional dyscontrol, and frequent and deep depression and sadness. She is at high risk for conflict relationships.

Further, Dr. Jeffery testified that C.P. was diagnosed with dysthymia, a chronic depression. As a result, Dr. Jeffery opined that chronic depression makes it difficult to be attuned to the needs of a child.

Finally, C.P.'s ability to parent was analyzed in light of the results of the Axis II diagnosis in connection with the results of the Million test. Dr. Jeffery testified that:

To be able to parent, you have to have the ability to manage your emotions, to form stable reciprocal relationships and be able to be attuned to the needs of others in a consistent reliable fashion where you make their needs your priority. You have to be able to manage emotions under stress. You have to be able to work collaboratively and constructively with other people and be able to attend to what is needed for the child. Consistency, reliability, stability, these are all factors that rely on the individual being able to manage their own personality and emotions the findings indicate [] that she has significant problems in the area of personality disorder that are related to features that have implications for parenting confidence.

According to Dr. Jeffery, the children would be at grave risk of harm in the care of C.P. and that it would not cause more harm than good to terminate her parental rights.

Dr. Jeffery evaluated M.F. He tested in the low average category of mental ability. The tests raised concerns regarding anger control, and the ability to acknowledge it. This placed him at risk for problems in dealing with others, especially children. M.F.'s Axis I diagnosis of Substance Dependence Not Otherwise Specified indicated that he had completed treatment and attended a twelve step program. The Axis II diagnosis of Personality Disorder Not Otherwise specified with narcissistic, antisocial, histrionic, and schizotypal features. According to Dr. Jeffery, "people with these features have difficulty empathizing with others, being emotionally stable, and forming stable and reciprocal relationships." Dr. Jeffery testified that, although these traits can be treated with therapy, it requires the individual to be able to perceive that he or she has a problem and to feel motivated to change that. She opined that M.F. did not feel he needed to work in therapy to change these features. Dr. Jeffery expressed concerns about returning L.P. into a home where the parents view her as the victimizer. In her opinion, that was not safe for the child.

As to the bonding evaluations of L.P. and N.P. with C.P., the results indicated that L.P. had an "insecure attachment to C.P." and N.P. viewed his mother as a familiar visitor rather than a parental authority. Additionally, she asked L.P. to draw a picture of her family. At that point, L.P. drew a picture of her foster family. When asked to draw her biological family, she refused. Dr. Jeffery observed that it is very unusual for children to refuse to draw pictures of parental figures. During the bonding session, C.P. could not manage the children, causing them to be in conflict. She also noted that when the children had to leave, they did not protest separation from their mother.

Dr. Jeffery opined that there are "significant personality functioning issues" that would take an estimated "no less than a year" to cure, and:

[It will be] a lengthy process of the parents involved in this case, trying to come to terms with their own issues from this point on, is problematic in terms of the priority of permanency. The two older children, it's my understanding, have been in placement for two years. The younger one, for approximately a year. There's a need for real permanency and resolution.

She did not believe the children would suffer serious or enduring harm if parental rights were terminated.

Neither C.P. nor M.F. presented expert testimony. In this appeal, they do not complain that they were deprived of the assistance of experts in preparing their defense.

On appeal, L.P. and M.F. contend that substantial credible evidence did not exist supporting the court's findings that: (1) the "best interests" test was proven by clear and convincing evidence; (2) the health and development of the children was and would continue to be endangered by the parental relationship; (3) C.P. and M.F. were unwilling or were unable to eliminate the harm facing the children; (4) DYFS made "reasonable efforts" to provide services to C.P.; and (5) termination of parental rights will not do more harm than good. We disagree.

The conditions for termination pursuant to New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986), have been codified at N.J.S.A. 30:4C-15.1; see also In re Guardianship of DMH, 161 N.J. 365, 375 (1999); In re Guardianship of J.C., 129 N.J. 1, 9 (1992); In re Adoption of Child by P.S., 315 N.J. Super. 91, 110-11 (App. Div. 1998). The judge's findings that DYFS proved clearly and convincingly each of the required elements of the statutory best interest test is amply supported by the evidence addressed at trial. Moreover, because family part judges possess a recognized expertise in family matters, "appellate courts should accord deference to family court factfinding." See Cesare v. Cesare, 154 N.J. 394, 413 (1998). For that reason, we defer to Judge Johnson's credibility findings.

Therefore, we are satisfied that Judge Johnson's findings of fact are well-supported by the record. R. 2:11-3(e)(1)(A) and affirm substantially for the reasons expressed by Judge Johnson in his detailed and well-reasoned March 21, 2006 oral decision.

M.F. also contends that the judge improperly relied upon the Title 9 finding of abuse and neglect because such finding was only based on a preponderance of the evidence standard, thereby denying M.F.'s due process rights. Specifically, M.F. argues that Judge Bowen's findings were based upon the preponderance of the evidence standard, not the requisite clear and convincing standard. DYFS contends that Judge Johnson only incorporated Judge Bowen's findings into his decision, adding to and making findings of his own based on the record. We agree with this argument.

Judge Johnson specifically stated, "I reiterate the findings by Judge Bowen . . ., and find them independently myself, based on review of this file." Additionally, he announced that his findings are based on "clear and convincing evidence." Therefore, we reject M.F.'s contention.

Finally, M.F. contends that the judge abused his discretion by finding M.F.'s testimony not credible. M.F. argues that the judge's finding that he is not credible "does not make sense" in light of the fact that Judge Johnson determined that C.F. was credible. We disagree with this analysis.

Where the trial court has made credibility determinations, even without specifically articulating detailed findings of credibility, but where the reasons for its determination may be inferred from the record, then we are not free to make our own credibility determination. In re Guardianship of J.N.H., 172 N.J. Super. at 472-75. The trial court's conclusion must be given "great weight and accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth and Family Servs. v. F.M., 375 N.J. Super. 235 259 (App. Div. 2005) (citing In re Guardianship of DMH, 161 N.J. 365, 382 (1999)) (noting that the trial court is better positioned than the appellate courts to evaluate witness credibility).

Judge Johnson stated that while M.F. was under oath he testified that he did not remember any specifics about his father's arrest for molesting M.F.'s sister. Judge Johnson found M.F. was not credible because of his demeanor during his testimony. Furthermore, Judge Johnson stated:

I don't believe your memory is that bad. And, therefore, I question many of the things that you say. And I do find, sir, as . . . Judge Bowen found in regard to this case, that you had inappropriate contact with this child despite your denial.

 
Judge Johnson's opinion noted that C.P. believes M.F., and that M.F. has "great influence" over C.P. This indicates that although C.P. may be telling the truth, she supports someone that the judge believes is lying. Assuming that C.P. believes that M.F. did not abuse L.P., nonetheless, the proofs show that C.P. could not provide for the needs of her children. The judge's credibility conclusion is not clearly lacking support. Therefore, we give it great weight and deference.

Affirmed.

T.J. is now living in Australia.

(continued)

(continued)

17

A-4224-05T4

RECORD IMPOUNDED

November 20, 2006