NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.R. and A.S.L.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2944-07T42944-07T4

A-3441-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.R. and A.S.L.,

Defendants-Appellants.

IN THE MATTER OF THE GUARDIANSHIP

OF D.S.L., S.S.L. and J.S.L.,

Minors.

_____________________________________________________

 

Submitted November 6, 2008 - Decided

Before Judges Cuff, Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-152-07.

Yvonne Smith Segars, Public Defender, attorney for appellant C.R. (William J. Sweeney, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant A.S.L. (Jeffrey S. McClain, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Yudelka R. Felipe, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for the minors (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In these consolidated appeals, after carefully considering the record in light of the arguments raised, we affirm the judgment that terminated defendants' parental rights to their three children -- D.S.L. (a son, born on July 26, 1998), S.S.L. (a daughter, born on October 3, 1999), and J.S.L. (a son, born on November 8, 2001).

The testimony adduced during a five-day trial, which the judge found credible, reveals that the Division of Youth and Family Services first became involved with this family in April 1999, when it received an unsubstantiated referral that one of the defendants had thrown D.S.L., who was then an infant, against a wall. Other referrals followed.

In 2003, defendant C.R., the children's mother, and the children were living in a shelter as a result of domestic violence that occurred between defendants. At that time, Dr. Ernesto Perdomo performed a psychological evaluation of the mother and recommended that she engage in parenting skills and anger management classes and that the Division continue to supervise. The Division provided the services of a homemaker and referred the mother to parenting training and anger management classes. In October 2003, a pediatrician observed bruises on S.S.L. The mother acknowledged that she had hit the child with a belt.

In December 2003, another domestic violence incident led the mother to take her children to a shelter. In March 2004, the Division again referred the mother for anger management counseling. She initially refused because she had no child care, but the Division provided assistance in this regard.

In May 2004, the Division substantiated an allegation that defendant A.S.L., the children's father, hit one of the children, causing a bruise across the child's forehead. In February 2005, the mother adamantly refused the Division's referral to anger management counseling. A few months later, the Division responded to a referral indicating that the youngest child was struck by the mother. Although that referral was not substantiated, the mother signed an in-home case plan on April 21, 2005, agreeing to use appropriate discipline methods.

Further referrals of physical abuse were received by the Division in June and August 2005. As a result of assertions by S.S.L. about physical abuse, the mother was interviewed by the prosecutor's office. She was asked whether she had relatives with whom the children could stay; she indicated that she did not. The mother asserted that the Division could take her children because she did not want them, and that "just as easy as it was to give birth to them it is that easy to give them up." The Division immediately removed the children; the mother departed with her boyfriend without saying goodbye to her children.

On August 29, 2005, the Division filed an abuse and neglect complaint and was awarded custody of the children, whom the Division placed in foster care -- the boys in the same home in Jersey City, and the daughter in a home in Bayonne. The mother was ordered to attend a psychological evaluation, and to undergo anger management counseling and parenting skills training. The father was not immediately informed of the removal because the Division could not locate him.

The children's mother proved uncooperative and largely refused the services provided. She attended the first counseling session but failed to schedule or attend further appointments. Approximately one week after the commencement of the abuse and neglect suit, the children's father reached out to the Division and advised he was residing in Pennsylvania with his parents and another male. He asserted that he would do whatever was necessary to obtain custody of the children. However, when the Division requested the names of all the members of the household and attempted to schedule a home evaluation, the father refused, stating that "no one needs to know [his] business."

On October 5, 2005, the mother stipulated that she placed the children at risk of harm by refusing to accept the Division's offers of services. The judge ordered a continuation of the foster placement and again directed the mother to engage in the services previously ordered. The judge also ordered that the father attend psychological and substance abuse evaluations.

Again, the Division scheduled appointments for the mother and again she failed to attend. The Division scheduled supervised visitation for the father, but he visited only once. Appointments were scheduled for the father's psychological and substance abuse evaluations, but he failed to appear.

In February 2006, the mother underwent a psychological evaluation. She attempted to justify her physical punishment of her daughter by asserting that "[i]f I have to repeat myself, I want to repeat myself once, not ten times." According to Dr. Alicia A. Caputo, the mother possessed "limited insight into the effects on her children of her choice to have them placed in foster care rather than complying" with the Division's requirements. Dr. Caputo concluded that the mother exhibited a lack of empathy and little remorse for the consequences of her actions, and that she "minimiz[ed] and rationaliz[ed] her behaviors rather than fully accepting responsibility for them." He recommended the mother's participation in anger management and parenting classes.

Dr. Ernesto Perdomo psychologically evaluated the children. He reported that the oldest child indicated he did not know why he was separated from his family and expressed a strong desire to be reunited, demonstrating that the child was "well bonded" to his mother and family. According to Dr. Perdomo, the youngest child, due to his age, appeared not "to understand what [was] happening to him," but he seemed attached to his family. The daughter, then six-years old, told Dr. Perdomo that she liked her foster home and did not want to return to her mother because of the fights between her mother and her mother's paramour.

In June 2006, defendant A.S.L. informed the Division that his mother had returned from Ecuador and suggested her as a possible resource. However, later that month, A.S.L. was arrested on charges of aggravated assault and other offenses and was incarcerated in Pennsylvania. The paternal grandmother did not contact the Division to offer herself as a resource for placement for another five months.

By June 2006, the children's mother had substantially complied with the Division's recommendations by attending anger management counseling and parenting classes, and, on August 16, 2006, the judge approved a reunification plan. A visitation schedule was also put in place. However, the mother soon ceased complying with the services that had been provided. On October 10, 2006, the counseling center informed the Division that the children's mother had not returned to anger management counseling since early June 2006. Supervised home visitation was terminated after an incident on September 26, 2006, when the daughter advised a counselor that her mother had physically grabbed the youngest child, which caused her to fear her mother. When asked about it, the mother told the counselor that her daughter "will never learn to keep her mouth shut."

On October 24, 2006, the mother underwent yet another psychological evaluation, this time with Dr. Donna LoBiondo. During this session, the mother "expressed resentment at [the Division's] involvement and denied culpability." Although she reported that she had completed parenting classes and six sessions of anger management, the children's mother had great difficulty articulating what she learned. Dr. LoBiondo noted the mother's "admitted intentions to comply with services just to get her children back rather than accepting the reality of her abusive parenting style," and concluded that there was a need for further anger management and parenting training, as well as individual psychotherapy and therapeutic visitation.

As a result, the Division's plan changed from reunification to termination. An order entered on October 31, 2006 reflected the Division's intention to file for the termination of parental rights by December 31, 2006. The Division then indicated that its plan was to keep S.S.L. with her foster mother, who had expressed an interest in adopting the child, and to place the two boys with their paternal grandmother, who expressed an interest in adopting all three children. The Division continued to offer services to the mother, which she did not accept until December 2006.

The complaint in this matter was filed on January 19, 2007. At that time, the father was still incarcerated; he was served with the papers in prison. The Division planned to keep the daughter with her foster mother, who had expressed a desire to adopt. An interstate evaluation of the paternal grandmother was ordered and a home assessment conducted on February 1, 2007; visitation of all three children with the paternal grandmother commenced at the end of June 2007. On July 5, 2007, the home study recommended approval of the grandmother's home. On August 6, 2007, defendant A.S.L., the children's father, was deported.

In August 2007, the mother underwent a psychological evaluation performed by Dr. Frank Dyer. She was asked about the bruising on her daughter's back and responded that she "used the belt," and explained: "I could say out of anger. I could say she has a listening problem. Kids only listen to what they want to hear." Dr. Dyer's overall impression was that the mother was "an individual who relies on denial and minimization in regard to child abuse, domestic violence, and her own struggles with poorly contained anger." He concluded that, if the children were returned to their mother, "she would be extremely difficult to monitor" due to her "particularly negativistic and defiant attitude toward authority figures who are attempting to stabilize her family." Dr. Dyer recommended that the mother not be considered as a viable candidate for custody of the children.

A trial took place on October 22, 24, 29, and 31, and December 17, 2007. The Division presented the testimony of a case worker and Dr. Dyer. The mother testified on her own behalf and called her own psychologist, Dr. Gerard Figurelli. The father testified by telephone from Ecuador; he consented to an identified surrender of his parental rights to the two boys in order to permit his mother to adopt them. Judge Bernadette DeCastro issued a written decision on January 8, 2008, concluding that the parental rights of both defendants to all three children should be terminated. A final order was entered on February 20, 2008.

Both parents appealed, arguing that the evidence did not provide adequate support for the termination of their parental rights. The applicable standard of appellate review requires that we defer to a trial judge's factual findings when they are based on credible evidence in the record unless we are convinced those findings are "so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). After close examination, we conclude that the record contains clear and convincing evidence to support Judge DeCastro's findings. We also conclude that the judge carefully and thoughtfully applied the correct legal standards to the facts she found in ultimately concluding that termination was required.

In reaching her decision, Judge DeCastro applied N.J.S.A. 30:4C-15.1(a), which mandates that, in order to obtain the termination of parental rights, the Division is required to prove, by clear and convincing evidence, that:

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

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm . . .;

(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.

See also N.J. Div. of Youth & Family Serv. v. A.W., 103 N.J. 591, 604-11 (1986).

In finding that the requirements of the first prong had been satisfied, the judge relied upon the numerous instances of physical abuse suffered by the children "at the hands of their parents," some of which we have already discussed. The judge also recognized that the first and second prongs relate to and overlap with one another to create a standard that identifies the children's best interests. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999); N.J. Div. of Youth & Family Serv. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). The judge summarized her findings in the following way:

The bonding evaluation and reports from the therapeutic visitation demonstrate that these children have suffered significant physical and emotional harm and [demonstrate the] unwillingness of the parents to eliminate that harm.

Dr. Dyer also opined that it would be ideal if the boys were placed in a secure stable home where the degree of psychological harm would be mitigated. Here, that is not the case if they are placed with their mother [because] she cannot provide them with a secure and stable home free from violence.

Neither [was] defendant's nor her expert's testimony credible. The defense expert opined that C.R. suffers from Battered Woman Syndrome as a result of her childhood abuse and years of living with abusive men. He further maintains that she can be treated in relatively a short period of time so that she can parent her children. Thus, C.R.'s argument is unpersuasive. Despite having had parenting skills and anger management, she still was unable to articulate to Dr. Lobiondo what she had learned from this treatment that would assist her in being a more effective parent. Even at trial, C.R.['s] answers were vague and superficial indicating merely that she learned a lot about controlling her anger.

Despite all the services provided to this family, as recently as May 2007, Care Plus reported that C.R. appeared to get easily agitated, she screamed at the children for eating on the bed. She screamed at them when they got off the bed instead of watching the movie that she had put on for them. In fact, [the oldest child] asked her why she was screaming at him. She replied in a loud voice, "I am not screaming!" The counselor had to direct C.R. to lower her voice to which she stated, "Well, they are not listening to me." Clearly, she was unable to incorporate the skills that she learned in her parenting classes.

Based upon the evidence and experts' opinions, it is highly improbable that the children can be safely reunified with their mother in the foreseeable future. Thus, the Division clearly established by clear and convincing evidence it has met is burden as to the first and second prongs.

There was an abundance of evidence to support the judge's findings on these prongs.

We also find no merit in defendants' arguments that the evidence was insufficient to support a finding that the third prong had been met. As applied to this case, the third prong required consideration of two separate aspects. The first related to whether the Division provided services "to help the parent correct the circumstances which led to the child's placement outside the home." N.J.S.A. 30:4C-15.1(a)(3). There is no dispute that the Division provided numerous services in an attempt to assist both these parents. Defendant C.R. acknowledges in her brief that the Division "did offer substantial services," and defendant A.S.L. has not argued that the evidence was insufficient in this regard.

Instead, both defendants' arguments on the third prong chiefly relate to whether the court considered "alternatives to termination of parental rights." Ibid. Defendants assert that the Division failed to explore a placement of all the children with the paternal grandmother with a view toward adoption. The record reveals that soon after the children were removed from the home in August 2005, defendant A.S.L. offered his mother as a potential resource. However, at that time, defendant A.S.L. resided with his mother and the Division correctly recognized that because he had refused to submit to a substance abuse assessment or otherwise comply with the services provided, his presence rendered that an unsuitable home.

Later, in June 2006, defendant A.S.L. contacted the Division regarding placement of the children with his mother; by this time the children had been out of the home for ten months and the paternal grandmother had apparently been in Ecuador for some period of time before her return to Pennsylvania. Again, because defendant A.S.L. was still residing with her, the Division correctly decided not to proceed toward placing the children with her.

The Division's concern about the paternal grandmother's home was alleviated when defendant A.S.L. was incarcerated, but the paternal grandmother did not reach out to the Division until the end of November 2006, fifteen months after the children had been removed and placed in foster care. The record reveals that the Division requested an interstate evaluation, which resulted in approval of her home a month prior to the commencement of the trial. It is also noteworthy that the paternal grandmother did not have a relationship with the children and that, only at the Division's urging, did visits between the paternal grandmother take place with the children. By the time of trial, only three such visits had occurred. These facts demonstrate that the requirements of the third prong were met.

It is important to recognize that the circumstances we have outlined regarding the third prong do not control where the children may ultimately be permanently placed. The question posed in this matter related to whether there was a relative willing and able to care for these children at the time of their placement or at any reasonable time thereafter. The evidence in the record reveals there was no available relative at or within a reasonable time after the children's removal because the paternal grandmother did not become available until shortly before the trial. Thus, we are satisfied that the trial judge correctly found that the requirements of the third prong were met by clear and convincing evidence.

As for the fourth prong, Judge DeCastro found, in relying upon Dr. Dyer's testimony, that the harm resulting from the termination of parental rights would not do more harm than good. She found that although the children were bonded to their mother, the risk of future physical abuse at her hands "was too great to return the children to their mother." The judge also observed that D.S.L. was diagnosed with adjustment disorder with depressed mood, a circumstance that would prove extremely challenging for the mother if the children were returned to her. The judge also found that J.S.L. had exhibited "very aggressive behavior," which included a threat to kill an Urban League worker with a knife. Because J.S.L. had also been very aggressive in responding to his mother's attempts to discipline him, the judge was rightly concerned about the possible dangers lingering in the child's return to his mother's care. And the judge also made ample findings regarding the serious and detrimental impact on D.S.L., who had formed a significant attachment to her foster mother.

The fourth prong requires a determination of whether "after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. The judge concluded that the evidence clearly and convincingly weighed in favor of termination. We have no cause to second guess that determination.

 
In reviewing this matter, we are required to defer to the judge's fact findings so long as they are supported by adequate, substantial and credible evidence in the record. N.J. Div. of Youth & Family Serv. v. E.P., 196 N.J. 88, 104 (2008); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993). Having carefully reviewed the record in this most unfortunate case, we can discern no sound reason for disturbing the judge's findings.

Affirmed.

In other words, these findings must be considered in their proper setting. We are entirely satisfied that the unavailability of the paternal grandmother for such a significant period of time prior to the trial warranted the judge's conclusion on this prong. We do not mean, however, that the paternal grandmother should not be considered as an adoptive parent of all three children. Although at the time of trial the two boys had not yet been placed with the paternal grandmother, we assume that has since occurred. The Division did not place the daughter with the paternal grandmother in light of the foster parent's desire to adopt her, and the Division, according to the record on appeal, had not examined by the time of trial whether it would be better for all three children -- in light of their close relationship -- to remain together. We further observe that Dr. Dyer testified that it would harm the three siblings if they never saw each other again, but he also acknowledged that he was not asked to address the impact of their future permanent separation. We assume these matters will be examined in the future and our determination that the third prong has been met -- for purposes of determining whether defendants' parental relationship to the children should be terminated -- should not be interpreted as either approving or disapproving any particular placement of the children in the future.

(continued)

(continued)

17

A-2944-07T4

RECORD IMPOUNDED

November 20, 2008