NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.S.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4453-05T44453-05T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

P.P.C. and T.K.,

Defendants,

and

A.S.M.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP OF A.M.C. and J.D.M.,

Minors.

__________________________________

 

Submitted November 13, 2006 - Decided December 18, 2006

Before Judges Lintner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-199-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Susan Brown-Peitz, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for J.D.M., a minor (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant A.S.M., the father of J.D.M., appeals from the termination of his parental rights. Defendant T.K., the father of A.M.C., and P.P.C., the mother of both children, have not filed an appeal or participated in this appeal. Plaintiff New Jersey Division of Youth and Family Services (the Division) and the Law Guardian for both children support the termination of A.S.M.'s parental rights. The matter was tried on February 15, 16, and March 1, 2006. The Family Part Judge, Peter V. Ryan, issued a written opinion on March 29, 2006, and then entered an order terminating the parental rights of A.S.M., T.K., and P.P.C. to their respective children. We affirm.

The eldest child, A.M.C., was born March 10, 2001, to P.P.C. and T.K. Both P.P.C. and A.S.M. have physical disabilities, are wheel-chair bound, and suffer from cerebral palsy. P.P.C. and A.S.M. no longer live together as a couple. In 2001, while P.P.C. and A.S.M. still lived together, the Division received two referrals regarding P.P.C.'s and A.S.M.'s handling of A.M.C. Neither referral was substantiated after the Division investigated the allegations. During the investigation, P.P.C. told Division workers, and A.S.M. concurred, that A.M.C. was the biological child of T.K.

The Division received another referral in January 2002 regarding allegations of abuse of A.M.C. and a suicide attempt by P.P.C. The abuse was substantiated by A.S.M. when he admitted to a Division worker to engaging in "domestic violence in the home and hitting [A.M.C.] with [a] leather belt or his hands." A.M.C. was approximately ten months old at the time. A.S.M. also admitted to the Division worker that he had an anger management problem.

On February 13, 2002, the Division received another referral, again alleging neglect of A.M.C., and also alleging an abusive relationship between P.P.C. and A.S.M. The referral alleged that A.S.M. "likes to be naked" in the house. The Division's investigation revealed that A.M.C. had bruises on her body, and A.S.M. again admitted to hitting the child. A.S.M. also indicated to the Division that he was not the biological father of A.M.C. As a result, A.M.C. was placed in foster care pursuant to a voluntary consent agreement between the Division, P.P.C., and A.S.M. Placement with the child's aunts was investigated, but never occurred because one aunt had a criminal record and the other did not respond to the Division's attempts to contact her. A.M.C. remained in foster care following the termination of the consensual foster placement. In December 2003 A.M.C. was reunited with P.P.C. and A.S.M.

At this point, the Division's goal for A.M.C. was reunification with P.P.C. To that end, the Division referred P.P.C. and A.S.M. to Family Connections in March 2002 for psychological evaluations. A.S.M. admitted to the Family Connections doctor that he abused A.M.C., but minimized his role in the abuse, placing some of the blame on P.P.C. A.S.M. admitted that he engaged in mutual domestic violence with P.P.C. The doctor concluded that A.S.M.'s testing and clinical interview indicated he has "adequate parenting knowledge and skills. . . . [I]t remains to be seen whether or not [A.S.M.] is able to carry this knowledge out into daily practice and refrain from physical abuse." The doctor recommended that A.S.M. continue in therapy, receive a psychiatric evaluation regarding his depression, continue to attend parenting classes, continue monitored visits with A.M.C., and receive anger management therapy.

A.S.M., at the Division's request, received psychotherapy focusing on depression, stress-reduction, communication, coping, anger management, and parenting skills at Care Plus NJ from February 2002 to February 2005. All reports indicated that A.S.M. was participating in his therapy and complying with the Care Plus NJ program. Bi-weekly supervised visitation between A.S.M., P.P.C., and A.M.C. was conducted beginning in March 2002 pursuant to a Division visitation plan.

In May 2002 Family Connections notified the Division that A.S.M., then twenty-one years old, had recently been charged with a multitude of sexual offenses regarding contact he had with his nine-year-old sister. The victim alleged inappropriate touching and fondling on two occasions, including A.S.M. placing his penis in her mouth. An Adult Diagnostic and Treatment Center evaluation was performed, which concluded that A.S.M. did not fall within the purview of the New Jersey Sex Offender Act because there was no clear finding of sexual compulsion. Ultimately, A.S.M. pled guilty on September 6, 2002, to third-degree assault by sexual contact in violation of N.J.S.A. 2C:14-2(b). A.S.M. received two years of probation and was sentenced as a Megan's Law offender.

On September 19, 2002, J.D.M. was born. The Division put a "social hold" on J.D.M. at the hospital, preventing P.P.C. and A.S.M. from bringing J.D.M. home. The Division sought and was granted custody of J.D.M. pursuant to an order to show cause entered September 24, 2002.

The Division investigated placement of J.D.M. with relatives and a family friend. However, the relatives either declined to take J.D.M. or did not follow through with the Division to have J.D.M. placed with them. Eventually, the Division located J.D.M.'s maternal aunt, S.L.B., as a placement option. However, this placement was never approved by a Division "policy waiver," which was required because S.L.B.'s husband had a criminal record.

In October 2002 supervised visitation between P.P.C., A.S.M., A.M.C., and J.D.M. began through Tri-City Peoples Corporation Supervised Visitation Program. The Tri-City reports summarizing the events of the visits indicated positive interaction between the parents and children. The supervised visits continued at a frequency of every other week, through March 2003.

In the meantime, the Division requested that A.S.M. submit to a psychosexual assessment. Donna LoBiondo, Ph.D., performed this assessment on February 13, 2003. She concluded that A.S.M. "presented as an intellectually limited individual who has attempted to comply with stipulations required by DYFS and the Court to the best of his ability." The psychologist believed that A.S.M. minimized the contact with his minor sister, but found that there was no evidence of repetitive and compulsive behaviors for statutory purposes. She believed A.S.M. did not present a high risk for molesting children or engaging in sexual offenses in the future and, therefore, that the conviction "should not prevent him from regaining custody of his children." Dr. LoBiondo recommended A.S.M. continue therapy and that he engage in couples' counseling with P.P.C.

In March 2003 the Division referred P.P.C. and A.S.M. to Reunity House, a Family Connections supervised-visitation program geared toward eventual reunification of the parents and children, where they continued to visit with A.M.C. and J.D.M. Reports from the supervised visits indicated positive interaction between the parents and children and that a positive bond was beginning to form. On December 8, 2003, the Division placed A.M.C. and J.D.M. with P.P.C. and A.S.M. Home health aides were provided to assist P.P.C. and A.S.M. in caring for the children.

On January 21, 2004, a Division worker visited P.P.C. and A.S.M. to evaluate the conditions following reunification. Concerns arose regarding P.P.C.'s conduct when the home health aide reported that A.S.M. did all the work around the house and that P.P.C. slept all day and went out all night with her friends. On a subsequent visit on April 15, 2004, the Division investigated a report that A.S.M. was abusing A.M.C. and that P.P.C. and A.S.M. were neglecting their parental duties to keep the house and children clean and provide the children with adequate food. The Division's investigator substantiated abuse of A.M.C. by A.S.M. A.M.C. said that A.S.M. bit her finger. A.S.M. admitted to spanking A.M.C. because she had eaten some chocolate without permission. At the same time P.P.C. told a Division worker that the children ate for the first time that day at 5:00 p.m. because that was when P.P.C. first got out of bed. The home was reported to be very dirty.

The Division removed A.M.C. and J.D.M. from P.P.C. and A.S.M.'s custody the same day, placing them in the same foster home in which they had most recently been living. On June 1, 2004, visitation was suspended pending trial pursuant to a court order. In August 2004 P.P.C. and A.S.M. ceased living together and apparently discontinued their relationship. In September 2004 the Division shifted its goal for A.M.C. and J.D.M. from reunification to permanent adoption.

In October 2004 A.M.C. and J.D.M. were in a foster home. The children were moved to a respite home, a temporary foster placement, in February 2005 because their then-current foster family was moving out of state. From March until August 2005 the children were placed in another home while the Division attempted to locate a permanent adoptive home for both children because the Division's goal for the children was to keep them together. In August 2005 A.M.C. and J.D.M. were moved to an adoptive home. This placement occurred because A.M.C. was having behavior problems in the prior home and the foster mother did not want to adopt the children. In September 2005 the children were moved again to a new placement, this time because there was an allegation that the adoptive parents inappropriately disciplined the children.

The Division did explore placing the children in the home of a relative of either P.P.C. or A.S.M. L.C., the maternal grandmother of the children, was ruled out as a placement option because of her "extensive DYFS history." The parents did not offer any other relatives that could take the children during this period (October 2004 to September 2005).

At the termination hearing, the Division's case worker, Jennifer Stoakle, and two experts, Elaine Weitz, Psy.D., and Denise Williams Johnson, Ph.D., testified on behalf of the Division. No witnesses testified on behalf of any of the parents and A.S.M. did not appear for the trial. The judge reserved decision at the conclusion of the proofs.

In prosecuting an action to terminate parental rights, the Division must prove the following elements by clear and convincing evidence:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

 
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

 
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

 
(4) Termination of parental rights will not do more harm than good.

 
[N.J.S.A. 30:4C-15.1(a).]

On March 29, 2006, Judge Ryan issued a written decision terminating A.S.M.'s parental rights respecting his child J.D.M. Initially, Judge Ryan commented on A.S.M.'s conviction as a "Megan's Law sex offender" pursuant to A.S.M.'s plea of guilty to sexual assault, N.J.S.A. 2C:14-2(b). Judge Ryan noted that:

The factual basis offered in support of the guilty plea asserted that [A.S.M.] mastur-bated in the full view of his younger sibling, which falls within the ambit of both 2C:14-2b and 2C:7-2b(1).

Having accepted culpability for his wrongdoing, a second degree offense under N.J.S.A. 2C:14-2b, [A.S.M.] was subject to N.J.S.A. 9:2-4.1a which reads:

. . . .

Notwithstanding any provision of law to the contrary, a person convicted of sexual assault under N.J.S. 2C:14-2 shall not be awarded the custody of or visita-tion rights to any minor child, including a minor child who was born as a result of or was the victim of the sexual assault, except upon a showing by clear and convincing evidence that it is in the best interest of the child for custody or visitation rights to be awarded. . . .

Despite this clear and unequivocal statutory prohibition, the Division returned [A.M.C.] and [J.D.M.] to [P.P.C.] and [A.S.M.] on December 8, 2003. Predictably, the children were removed from [their] home on April 15, 2004 due to [physical abuse and neglect] . . . .

Query - How could the minors be returned to the care and supervision of [A.S.M.] given the above facts? The perma-nency order and the custody and service order leads this court to inexorably conclude that the representatives of the various agencies involved, without exception, were unaware of the statutes and the applicable law, which inured to the detriment of the minors. Stated simply, what occurred here should never be repeated. . . . (Emphasis in original, citations to the record omitted.)

Recognizing that this statutory provision alone would not terminate the parental rights of A.S.M., N.J.S.A. 9:2-4.1(c), Judge Ryan then made detailed findings of fact and correctly stated the applicable law. He separately addressed each element of the statutory best-interests test. With regard to the first prong, past or foreseeable future harm to the child, Judge Ryan found that this element was clearly satisfied:

There is overt evidence of actual harm in the form of [A.S.M.'s] . . . physical abuse and general dereliction of care. . . .

. . . .

The facts germane to the harm question are abundant and unambiguous. [A.M.C.] suffered physical abuse at the hands of her mother and [A.S.M.] on an uninterrupted basis since the age of ten months old. [A.S.M.] acknowledged hitting her with his hand and belt. . . . At one juncture, the DYFS case manager overheard [A.S.M.] yelling and hitting [A.M.C.] from outside the apartment door. . . .

. . . .

[A.S.M.] also admitted to the physical abuse of [A.M.C.] in 2002. In addition, he stated that [P.P.C.] was physically and verbally abusive to the children, and that she would beat and punch them. He divulged that she threw one of the children on to the floor and into a heater.

The abuse was coupled with actual neglect while in their parents' care. [A.S.M.] has revealed that upon the return of the children, he did not participate in their daily primary care, leaving that responsibility solely to [P.P.C.] . . . .

The combination of abuse and neglect has clearly had a severe impact upon the emotional and mental well-being of the children . . . . (Citations to record omitted.)

. . . .

In the instant case, curative or corrective steps were at [P.P.C.'s] disposal, but were dismissed . . . . Neither [P.P.C.'s] non-compliance or [A.S.M.'s] behavior, nor the picture painted by the expert witnesses even remotely suggest that the harm to the children will end or that the parents have, presently or in the past, the capacity to function as parents. The record compiled in this litigation offers little hope or expectation that the defendants can change and prevent future harm to their offspring.

Having concluded that the Division proved the first prong by clear and convincing evidence, the judge turned to the second statutory prong, parental unfitness.

The evidence marshaled by the Division is formidable. [P.P.C.] and [A.S.M.] have been subjected to numerous psychological evaluations aimed at assessing their parenting abilities since the children's first removal in 2002. The submissions of the experts are completely in accord in reaching the conclusion that neither is able to parent the children. This unwavering position was furnished despite the parent's participation in a significant number of therapeutic interventions. . . .

As to [A.S.M.], Dr. Johnson was even more pessimistic and graphically straightforward in describing his "significant level of pathology." Moreover, Dr. Johnson stressed that [A.S.M.] was a threat to be recidivistic with respect to sexual offenses.

Thus, the overwhelming evidence devel-oped and presented during the course of trial clearly demonstrates that neither [A.S.M.] nor [P.P.C.] can provide the appropriate parenting and [a] stable home so essential to the well-being of their children. . . .

The judge also found that the Division had made reasonable efforts to provide services.

[A.S.M.] was referred to and engaged in programs at CarePlus NJ in February 2002 where he addressed issues of depression, stress reduction and parenting skills. CarePlus NJ added anger management as a focus of treatment. Visitation was arranged initially in the home and later referred to Tri-City after [J.D.M.]'s birth. The Division later introduced the parents to Reunity House for supervised visitation, individual-ized post-visit counseling sessions and parenting groups.

Subsequent to the second removal the Division continued to try to work with the parents. . . . [A.S.M.] continued at CarePlus NJ until February 2005. He discontinued this service voluntarily as he felt it was "worthless to continue."

The judge also noted that the Division had provided services to the children and concluded that A.S.M. "had numerous programs made available to him, but due to the depth of his abuse and neglect of the children and his background of sexual abuse, the efforts were ill-advised and ineffective."

In addressing the fourth statutory factor, that termination of parental rights will not do more harm than good, the judge reached the following conclusions:

The unchallenged opinion of Dr. Johnson, et al., outlined heretofore, coupled with earlier expert conclusions, are uniform in declaring that [A.S.M.] and [P.P.C.] are presently unfit and that the termination of their parental rights will "not do more harm than good to the children." Moreover, the bonding evaluations plainly indicate that "separating the children from their foster parents would cause serious and enduring emotional or psychological harm to the children." If there is clear and convincing evidence that separating the children from his or her foster parents would cause serious and endurable harm, termination is appropriate. Matter of the Guardianship of J.C., supra, 129 N.J. at 26.

In balancing the relationship of each child with their foster parent, the court finds that each has made and continues to make a positive adjustment and is comfortable with his or her foster parent situation. The foster parents are providing something that the defendants cannot - a stable nurturing home environment.

While each of the children was placed in foster care because of the abuse and neglect by [A.S.M. and P.P.C.], termination is grounded, in part only, on their misdeeds. Both defendants have demonstrated a transparent inability to parent, which supports the termination of their parental rights. Exhaustive evaluations were conducted as an aid to the court in determining whether termination is an appropriate and just remedy. Each expert opinion was that [A.S.M. and P.P.C.] should not be considered a viable candidate to parent any of their children. This court concludes, therefore, that no harm would befall any of the minor children from the termination of the defendants' parental rights. Further, the court finds that removing the children from foster care would cause grievous harm to each of the children.

Accordingly, the judge terminated all parental rights.

A.S.M. raises the following issues on appeal:

POINT I - THE STATE'S USE OF EXPERT TESTIMONY HEARSAY, NOT SUBJECT TO CROSS EXAMINATION, AND PRIOR INCIDENTS OF UNSUBSTANTIATED CASES OF NEGLECT RENDERED THE TERMINATION HEARING UNFAIR IN VIOLATION OF THE FOURTEENTH AMENDMENT OF UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION ARTICLE 1, PARAGRAPH 1 (EQUAL PROTECTION AND SUBSTANTIVE DUE PROCESS CLAUSES) (partially raised below).

POINT II - THE STATE FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THE SECOND, THIRD AND FOURTH PRONGS OF N.J.S.A. 30:4C-15.1.

A. The State Failed To Establish The Second Prong of N.J.S.A. 30:4C-15.1a.

B. The State Failed To Establish The Third Prong of N.J.S.A. 30:4C-15.1a.

C. The State Failed To Establish The Fourth Prong of N.J.S.A. 30:4C-15.1a.

The trial judge's findings of fact are afforded great deference on appeal and those findings will only be overturned if 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. of Am., 65 N.J. 474, 484 (1974); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). Deference is especially given to the trial judge's credibility determinations because that judge had a "feel of the case" and the opportunity to observe the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998); see also Div. of Youth & Family Servs. v. M.M., 382 N.J. Super. 264, 271 (App. Div.), certif. granted, 186 N.J. 606 (2006). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995); see also M.M., supra, 382 N.J. Super. at 272.

The four prongs of the statutory test for termination of parental rights are "interrelated and overlapping . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006). Application of the test is "extremely fact sensitive" requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid.

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by the appellants do not warrant extensive discussion in this opinion because the judge's findings are adequately supported by the evidence, R. 2:11-3(e)(1)(A), Rova Farms Resort, Inc., supra, 65 N.J. at 483-84, and because the arguments advanced by A.S.M. are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Ryan in his written opinion dated March 29, 2006.

Affirmed.

 

J.D.M., the younger child, was born on September 19, 2002, to P.P.C. and A.S.M. after abuse of A.M.C. had been substantiated.

In February 2005, A.S.M. stopped going to Care Plus NJ, but then resumed again in January 2006.

Div. of Youth and Family Servs. v. L.C., 346 N.J. Super. 435, 439 (App. Div. 2002).

(continued)

(continued)

18

A-4453-05T4

RECORD IMPOUNDED

December 18, 2006