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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-2499-07T42499-07T4

A-2718-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.A.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF C.T., M.C., AND A.N.P.,

Minors.

___________________________________

NEW JERSEY DIVISION OF YOUTH

AND FAMLY SERVICES,

Plaintiff-Respondent,

v.

A.P.

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.N.P.,

A Minor.

__________________________________

 

Argued November 6, 2008 - Decided

Before Judges Stern, Waugh and Newman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-124-07.

Durrell Wachtler Ciccia, Designated Counsel, argued the cause for appellant mother, S.A. (Yvonne Smith Segars, Public Defender, attorney; Ms. Ciccia, of counsel and on the brief).

Carleen M. Steward, Designated Counsel, argued the cause for appellant father, A.P. (Yvonne Smith Segars, Public Defender, attorney; Ms. Steward, of counsel and on the brief).

Lisa N. Brown, Deputy Attorney General, argued the cause for respondent DYFS (Anne Milgram, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Christopher A. Huling, Assistant Deputy Public Defender, argued the cause for minors (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Mr. Huling, of counsel and on the brief).

PER CURIAM

S.A. had four children by four different fathers. Jenny was born on August 8, 1992, to S.A. and J.R. Jenny presently lives with her father in North Carolina and was not a party to this proceeding. Cindy was born on June 23, 1994, to S.A. and C.T. Her father is presumed dead and has not participated in these proceedings. She is living in North Carolina with her sister Jenny and J.R. He is married and seeks to adopt her. Mary was born on February 22, 1999, to S.A. and J.C., who was deported to El Salvador and was imprisoned there. His whereabouts were unknown and he has not participated in these proceedings. Andy was born on June 3, 2004, to S.A. and A.P., Sr. (A.P. hereafter) who has participated in these proceedings. Both S.A. and A.P. appeal from the order terminating their parental rights. We affirm the order of termination of parental rights of S.A. as to Cindy and Mary. We reverse the order of termination of parental rights of A.P. as to Andy and remand for further evaluation in connection with the fourth prong of the best interests test. In light of the remand and the fact that S.A. and A.P. are still married, we await the remand proceedings completion and review thereof before passing judgment on S.A.'s parental rights to Andy.

The history of the Division of Youth and Family Services (DYFS) with this matter began on January 24, 2003, when a referral was received that Jenny had been sexually abused by a maternal uncle. The charge was substantiated. The family was referred to and cooperated with sexual abuse family education. Although DYFS closed the case, it continued supervision.

S.A. and A.P. were married on April 1, 2004. DYFS received a referral that A.P. was engaging in inappropriate sexual contact with Jenny. She alleged that A.P. had touched her breasts on three separate occasions. A.P. admitted that he accidentally touched her breast on one occasion when he was opening a curtain and she was directly behind it. Following an investigation, the charge was found to be unsubstantiated. A.P. was directed to leave the household. In May 2005 DYFS received a referral that Jenny indicated that A.P. was coming to the house at night and leaving in the morning. Jenny reportedly did not want DYFS to take her away from her mother so she did not report it. Cindy corroborated that A.P. had been coming to the house at night and sleeping over when she was interviewed at her school. S.A. denied that A.P. had been coming to the house. She said she saw A.P. once a week when she met him at a park so that he could visit with Andy.

There were various visits by DYFS and Metropolitan Homemaker Services checking on the residence. It was reported that it was dirty and there was garbage and roaches in the apartment. This ultimately culminated in a visit on August 8, 2005, where the caseworker found the home to be messy, having a bad odor and no food in the house. A neighbor reported that she was constantly feeding and washing the children. DYFS received a referral, describing the deplorable condition of the household. It was noted that there were roach nests on the floor, standing water in the bathtub which was clogged and a mattress had caught fire sometime during the prior week and had not been reported. The health department had been contacted.

On August 12, 2005, the caseworker performed another home inspection and at that time, the tub was clogged and there were candles burning in the bathroom. The building superintendent reported that the roach problem had gotten worse since S.A. had moved in. Cindy indicated that she had gotten into a fight with her mother and her mother had punched her in the face. The DYFS caseworker went to the babysitter who watched Mary and Andy and lived across the street from S.A.'s home. She told the caseworker that S.A. paid her monthly for babysitting and that she used this money to buy food for Andy.

All four children were removed via emergency removal without a court order on August 12, 2005. Jenny and Cindy were placed with the same foster mother; Mary was placed with a different foster mother; and Andy was placed in a third home.

S.A. was evicted on August 18, 2005, because of damage to the apartment caused by "willful negligence in maintaining the premises in an uninhabitable condition."

Supervised visitations were arranged by DYFS, beginning August 22, 2005. S.A. visited with all four of her children. A.P. visited with Andy. Both S.A. and A.P. consistently attended scheduled visitations. On October 18, 2005, S.A. underwent a psychosocial evaluation from the Audrey Hepburn Children's House. Following testing, the evaluator had this to say about S.A.'s responses:

S.A. invalidated the results by responding in a manner that demonstrated an extremely high frequency of inconsistent answers. This indicates a highly defensive and deceptive response style and a response style of not taking the testing seriously. [S.A.] did not complete the parenting instruments. Also, [b]ased on the clinical assessment, [S.A.] has a self-centered personality that diminishes her capacity to empathize with her children's negative experiences.

The evaluator opined that S.A. was "defensive in a pleasant, manipulative manner. . . . [S.A.] was an immature and impulsive individual who takes risks without fully appreciating the level of risk involved and the impact on her children." S.A. was diagnosed with narcissistic personality disorder.

A.P. underwent a psychological evaluation on December 12, 2005. Dr. Harold Goldstein reported that A.P. could neither read nor write in English or Spanish and he only spoke Spanish. A.P. denied ever inappropriately touching Jenny except for the accidental touching that he had previously acknowledged. He told the evaluator that "sexual behavior with an underage girl was wrong no matter what." Having insufficient data to classify the subject as a high risk to engage in sexually inappropriate behavior, Dr. Goldstein found the incidents "to be more situational than predatorial - the family was living in very close quarters and the children lacked adequate sleeping arrangements." He recommended that A.P. attend "individual and/or group sex offender treatment . . . ." He also indicated that A.P. should not have contact with the three daughters until he successfully completed treatment.

Both Cindy and Mary were evaluated by the Audrey Hepburn Children's House on January 31, 2006. Cindy denied ever being touched inappropriately by A.P. She did report seeing A.P. and S.A. argue and become physically violent toward each other. She also indicated that she saw "A.P. put his foot up [Jenny's shirt] and started touching [Jenny's breasts]." Cindy said she and Jenny had told S.A. about the incident, but S.A. did not believe them.

During her evaluation, Mary indicated a desire to be reunited with her mother. She did admit to seeing her mother and A.P. hit each other as well as seeing S.A. hit Jenny and Cindy with a belt. She denied ever being physically or sexually abused.

Andy needed to be moved from his foster home in April 2006. It became evident that his foster mother was overwhelmed caring for him because of his asthma and need for constant supervision. He had emergency room visits for asthma and related conditions eight times between October 28, 2005, and April 16, 2006. In addition to medical care, he was in need of speech therapy. DYFS required that all of Andy's caretakers be certified in child CPR.

On April 20, 2006, A.P. was told in person about his son's new placement and reminded that he had court ordered psychosexual evaluation scheduled for April 25, 2006. A.P. acknowledged that he knew about the appointment because he had received a letter in the mail with all of the information. A.P. did not attend the appointment. A.P. missed a subsequent appointment scheduled for May 18, 2006. Dr. Richard Sandoval's office refused to reschedule A.P.'s appointment because he had twice not shown up. The caseworker, in addressing the missed appointments, told A.P. that DYFS could not "cater to him anymore."

On June 23, 2006, DYFS received a phone call from J.R., Jenny's dad, requesting that his daughter be placed with him and his wife in North Carolina. He also indicated he would care for Cindy as well because the sisters were so close.

On August 14, 2006, DYFS conducted an investigation of the home of maternal cousins in Long Island, New York, who expressed an interest in being the caretakers for Andy and possibly his sisters. The caseworker found the home to be neat and clean and the family enthusiastic about the possibility of having Andy live with them.

Andy was moved out of his second foster home in September 2006, when his condition had improved. In the third foster home, the caseworker noticed that the house was messy and Andy had a foul odor with spots on his face resembling bed bug bites. On a return visit, the caseworker found Andy in better condition but the home was messy and there were dirty dishes in the sink. On a subsequent visit on November 29, 2006, the DYFS caseworker found the home was clean and that Andy was "very close" to his foster mother.

In December of 2006, Dr. Ernesto Perdomo conducted a psychological assessment of S.A. and her children. Dr. Perdomo found that S.A. was "a socio-economic, educationally deprived individual who tends to deny any problems and is rather passive-dependent. Her ability to defend her children from further abuse and restrain her impulses is poor . . . . [T]he children would always be at risk if unified with [S.A.]." During the evaluation, Jenny and Cindy "categorically refuse[d] to be reunited with their mother because they don't get along with her." Dr. Perdomo found that Mary "wants to return to her mother [and] . . . is very attached to her mother." Dr. Perdomo found Andy, then two-and-one-half years old, was "still not verbal and . . . need[ed] to receive speech therapy and be evaluated for developmental delays."

On June 25, 2007, Dr. Antonio Burr performed a psychological evaluation of S.A. at the request of the law guardian. Dr. Burr found, with respect to the alleged molestation of Jenny by A.P., that "for [S.A.] the greater violation was not that [Jenny] experienced molestation, or that she failed to protect her, but rather that, [Jenny] told people her problems outside the family and this resulted in the 'loss' of her husband." Dr. Burr did find that S.A. had "loving sentiments toward her children," however her sentiments toward Jenny and Cindy "are tinged with emotional ambiguity and some degree of resentment." Dr. Burr concluded that it was "conceivable [S.A.] may be able to parent her two younger children with support and assistance in the future."

Dr. Burr found that S.A. possessed a dependent personality, with difficulty functioning emotionally on her own. Her ability to be present in the emotional life of her children was limited. Her principal psychological defense mechanism was denial. When discussing the neglect which led to removal of the children from her home, she simply denied that the conditions were as described by DYFS.

On August 7, 2007, a bonding evaluation was conducted by Dr. Burr between S.A., Mary and Andy. Dr. Burr found the attachment between Andy and his mother to be "very poor" and the bond between the two to be "negligible." Dr. Burr found that Mary "feels attached to her mother" but has "no expectation that [S.A.] can provide for her physical or emotional needs."

At the time of the guardianship trial, beginning in September 2007, Jenny and Cindy were residing with J.R. and his wife in North Carolina. Mary and Andy were residing in separate foster homes. DYFS's plan for Cindy was to be adopted by Jenny's biological father. With regard to Mary and Andy, the goal of DYFS was to complete the interstate evaluation of the maternal relatives in Long Island with a view to adoption. The children had been visiting with the relatives while they awaited the results of the interstate evaluation.

Dr. Burr and Dr. Perdomo both testified at trial. Dr. Perdomo testified that even with extensive services, S.A.'s:

ability will be limited . . . because personality disorders, personality dynamics are very difficult to change even over time, and the history of the case does indicate the presence of domestic violence, a pattern of self-destructive relationships with men, the pattern of placing her own husband above the welfare of the children.

S.A. testified at trial that she wanted Cindy, Mary and Andy returned to her. She was unemployed. She claimed to be able to pay her rent by selling Avon products, but was unable to calculate how much money she earned per month and produced no pay stubs in connection with her sales. She said she would seek full time employment if her children were returned to her.

A.P. testified that he resided in an apartment he shared with three other men and that DYFS had never come to evaluate his apartment. He further testified that DYFS provided him with no psychological counseling, therapeutic counseling, family counseling or parenting classes. A.P. stated that he worked full time for the same construction company for five years. For the first time, he indicated that he wanted his son placed with him. He admitted that he never expressed this desire to have custody of A.P. before informing his lawyer two to three months prior to trial.

In deciding that the State carried its burden by clear and convincing evidence that it was in the children's best interests that the parental rights be terminated, the court emphasized that the children needed permanency which neither parent was able to provide now or in the foreseeable future. Dr. Burr's testimony, which was found compelling, underscored that S.A. lacked any insight into the reasons why her children were removed. While S.A. superficially complied with the services offered, she was not able to eliminate the risk of harm for the children if they were to be reunited with her. A.P. was not found to be in a position to reunite with his son because he lacks suitable housing and failed to complete any of the services offered by DYFS except for supervised visitation. The court addressed each of the four prongs of the best interests of the child test which we reiterate herein:

First Prong - Whether the child's health and development have been or will be seriously impaired by the parental relationship.

This prong refers to harm that "threatens the child's health and will likely have continuing deleterious effects on the child." In re Guardianship of K.H.O., 161 N.J. 337, 353 (1999). Harm attributable to a biological parent includes the prolonged inattention to a child's needs. See Div. of Youth and Family Services v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996).

The Division has been involved with [S.A.] and her children since 2003 when her oldest daughter, Jenny, was sexually abused by her uncle. Thereafter, there were two additional referrals, one unsubstantiated when Jenny reported that the co-defendant sexually assaulted her. [A.P.] was never charged with a criminal offense and this allegation remains unsubstantiated. However, a third allegation of abuse and neglect was substantiated in 2004 after it was reported by the homemakers who were assigned to the home that there was no food and that the apartment was deplorable including cockroach infestation. In addition, [S.A.] admitted to punching Cindy in the face. When the Division investigated, [S.A.] refused to purchase food and told the workers that they could take the girls but leave the boy. All the children were removed pursuant to DODD.

At no time during the case, did [A.P.] ever offer a stable home for his son.

Defendant-mother claims that the housing issues, domestic violence and excessive corporal punishment are not enough to sustain this prong. Furthermore, defendant argues that she was the victim of both poverty and domestic violence. This argument is patently flawed. Poverty is no excuse for filth as described in the record. Homemaker reports indicate that the house was dirty and there was no food in the home. On August 18, 2005, the Court granted custody to the Division after the mother was being evicted as a result of the deplorable state of her home. As a result she and the children were homeless.

The evidence amply demonstrates that neither parent has been able to provide a safe and secure environment for their children. The State therefore proved by clear and convincing evidence that the deplorable conditions of the home as well as the defendant-mother's admission that she physically assaulted her daughter the health and development of these children was seriously impaired by the parental relationship.

Second Prong - Whether the parents are unable or unwilling to eliminate the harm and delaying permanent placement will add to the harm.

In K.H.O., the Supreme Court stated that the first and second prongs "relate to and overlap with one another to create a comprehensive standard that identifies the child's best interest." Id. 161 N.J. at 352. The Court further noted that, "[t]he inquiry in the second prong is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." Id. at 348. The second prong thus relates to parental unfitness, and can be met by indications of parental dereliction and irresponsibility, such as continued or recurrent drug abuse, the withholding of attention and care, and the diversion of family resources to support a drug habit, with resultant neglect and lack of nurture for the child. Id. at 353.

The State maintains that defendants are unwilling or unable to eliminate the harm and provide them with a safe and stable home. The record clearly evinces S.A.'s inability to resolve the problems, which caused the Division to become involved with her family.

The evidence supports this conclusion. It is unlikely that the mother will establish a sufficiently safe and stable home in the foreseeable future. While she has made some progress towards reunification such as completing parenting classes, anger management, and some counseling, her counselor, Cynthia Arnao noted, "[S.A.] appears to have attempted to put effort into understanding the appropriate environment her children need in order to thrive yet seemingly she does not appear to be able to apply and enforce these boundaries."

Furthermore, both experts testified that family reunification with defendant-mother is not advisable due to her personality disorder with dependent and schizoid characteristics. Her ability to protect her children is limited by this disorder. Dr. Perdomo cautioned that if reunification were to occur, her poor insight into her problems would result in a very chaotic family system. Additionally, the expert indicated that she would need stable employment. [S.A.] testified that she sold Avon cosmetics but she was unable to state how much she made either monthly or annually. Her lack of knowledge about her earnings leads the court to believe that she lacks steady income and would resort to her old pattern of behavior of seeking a man to take care of her thus, placing her children at risk. Furthermore, Dr. Perdomo found no significant change with [S.A.] in the year since he first evaluated her despite the fact that she attended anger management, domestic violence counseling, parenting skills classes and counseling.

Dr. Burr concurred with the diagnosis of a dependent personality. He noted that all of her relationships with men had resulted in the birth of a child. All of these short-term relationships were with individuals who were unsupportive and often abusive towards her and her children. Dr. Burr opined that she has not embraced the standard of care and protection expected of her and may thus expose her children to future neglect. The expert opinions were not refuted.

Moreover, these children were removed from their mother's care more than two years ago in August 2005. [Andy] was an infant and as reported by Dr. Burr has no attachment to his mother. According to Dr. Burr, [Mary] although feeling attached to her mother is looking forward to residing with her aunt and has made the emotional transition. [Cindy] wishes to remain with her sister, Jenny's biological father.

"A child's need for stability, for consistency, and for permanence cannot be ignored in reaching the most challenging decision any court can face." Adoption of Child by P.S., 315 N.J. Super. 91, 120 (App. Div. 1998). Since it seems generally agreed that permanence in itself is an important part of nurture, a court must carefully weigh that aspect of the child's life. New Jersey Div. of Youth & Fam. Servs. v. A.W., 103 N.J. at 591, 610 (1986).

Undoubtedly, the Division has established by clear and convincing evidence that neither parent has eliminated the harm, which caused the Division to be involved with this family. Thus the Division has met its burden of proof with respect to the first and second prongs of the four-prong test.

Third Prong - Whether DYFS Diligently Pursued Alternatives to the Termination of the Defendants' Parental Rights.

 
The third prong of the "best interest" standard requires that the court examine the "diligent efforts" provided by the Division to help the parent correct and overcome the circumstances that led to the child's out-of-home placement, and to consider all of the alternatives to termination. This prong "contemplates efforts that focus on reunification of the parent with the child." K.H.O., 161 N.J. at 354.

The Division provided reasonable efforts to reunite the children with the mother. [A.P.] did not indicate that he wanted custody of his son until he testified at trial. In fact, he admitted that he never informed the Division that he would like custody of [Andy]. Moreover, he failed to attend a psychological evaluation scheduled by the Division and failed to attend psychosexual counseling that was recommended by Dr. Perdomo. He did not present expert testimony to support that he is able to parent his child.

During the Division's involvement with the family, the following services were offered to them: psychological evaluations, Project S.A.F.E., individual counseling, parenting skill classes, domestic counseling, anger management, homemaker services, CPR training, supervised visitation, bus passes, bunk beds, grocery money, in-home counseling, and interstate applications. Although, defendant-mother complied with these services according to all experts as well as her counselor, she continues to lack the insight and ability to effectively

parent and keep her children safe. It is well established that the Division's efforts "are not measured by their success." In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999). In D.M.H., the court acknowledged that similar types of assistance satisfied the statutory requirement of providing reasonable efforts. Id. at 393-94.

The defendants offered the Court no alternatives to termination. The children have been in foster care for more than two years. [A.P.], although he now claims to want custody of his son, never provided names of any relatives or friends to the Division who would be willing to care for his son. Neither of the defendants are able to provide a safe and stable home for their children now or in the foreseeable future as evidenced by the expert testimony as well as lack of financial stability of the defendants despite the reasonable efforts of the Division.

Fourth Prong - Whether Termination of Defendants' Parental Rights Will Not Do More Harm Than Good.

The final prong of the best interest standard is whether termination will do more harm than good. The question to be addressed under this prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from relationship with his foster parents. K.H.O., 161 N.J. at 355. This case, however, does not involve a balancing of bonds between a foster-parent and biological parent. Nonetheless, the question of whether termination of the defendants' parental rights would cause more harm than good remains. Notable, the best-interest test does not require a showing that no harm will come to the child as a result of severing the biological ties. The court in J.C. emphasized that "[t]he risk to children stemming from the deprivation of their natural parent is one that inheres in the termination of parental rights and is based on the paramount need children have for permanent and defined parent-child relationships." In re Guardianship of J.C., 129 N.J. 26 (1992).

According to Dr. Burr who conducted a bonding evaluation between defendant and her children, there is no bond between [Andy] and his mother. Unfortunately, because he was removed from his mother over two years ago when he was eighteen months old and placed in a home where English was spoken, he is unable to communicate with his Spanish speaking mother. The Division should refrain from placing children in homes that speak a different language than their biological parents because that severely threatens the parent-child relationship. However, in this case, the language barrier is not the only impediment towards reunification. As previously discussed, neither parent is able to provide a safe and stable home for their son now or in the foreseeable future.

[Mary], according to Dr. Burr has made the emotional transition to her maternal aunt and is looking forward to being her daughter. Admittedly, she expressed a desire for her mother to visit. But Dr. Burr noted that whatever bonding relationship that existed when the child was younger has significantly eroded and she is looking forward to a more effective maternal figure. Furthermore, whatever harm [Mary] may suffer could be mitigated by a positive, warm and nurturing environment with loving caretakers. He also noted that whatever harm incurred by [Mary] has already occurred due to their more than two-year separation.

[Cindy] is happy residing with her sister, Jenny's, biological father. She has expressed a desire not to be reunited with her mother.

Inherent in the fourth-prong of the best interest standard is that the children have a "paramount need for a permanent and defined parent-child relationship." J.C., 129 N.J. at 26, as well as a deep need for a nurturing adult. Id.

Therefore, the State has proven by clear and convincing evidence that termination of parental rights for all parents is proper so that these children may be adopted. An order shall be entered terminating the parents' parental rights, and placing the children in the guardianship of the Division, for all purposes, including adoption.

On appeal, S.A. raises the following issues:

POINT I: THE TRIAL COURT ERRED IN CONCLUDING THAT THE BEST INTERESTS OF THE CHILDREN WOULD BE SERVED BY TERMINATING S.A.'S PARENTAL RIGHTS

A. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT S.A. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HER CHILDREN OR IS UNABLE OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILDREN

B. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT 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.

C. TERMINATION OF S.A.'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD

A.P. raises the following issues on his appeal:

POINT I.: THE TRIAL JUDGE MADE INACCURATE FINDINGS OF FACT AND CONCLUSIONS OF LAW THAT JUSTIFY REVERSAL OF THE DECISION TO TERMINATE A.P.'S PARENTAL RIGHTS

POINT II.: THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE EACH OF THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1(a) AND, THEREFORE, A.P.'S PARENTAL RIGHTS AS TO [ANDY] MUST BE REINSTATED

A. THE TRIAL JUDGE IMPROPERLY FOUND THAT THE FIRST PRONG OF THE STATUTE WAS SATISFIED

B. THE TRIAL JUDGE IMPROPERLY FOUND THAT THE DIVISION SATISFIED THE SECOND PRONG OF THE STATUTE, AND, THEREFORE, A.P.'S PARENTAL RIGHTS MUBT BE REINSTATED

C. THE TRIAL JUDGE IMPROPERLY FOUND THAT THE DIVISION SATISFIED THE THIRD PRONG OF THE STATUTE

D. THE DIVISION FAILED TO DEMONSTRATE THAT TERMINATION OF A.P.'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD

We will address the parties separately as to each prong of the test.

I.

S.A. does not contest the first prong of the best interests test, recognizing that the children were removed because of the "deplorable conditions of the home as well as the defendant-mother's admission that she physically assaulted [Cindy]. The health and development of these children was seriously impaired by the parental relationship."

With respect to the second prong, S.A. argues that the trial judge erred in relying on the expert testimony. S.A. contends that Dr. Burr's and Dr. Perdomo's evaluations were based on information concerning Jenny which was ruled inadmissible. She especially points out that the Millon Clinical Multi-Axial Inventory test (MCMI-III) was geared to someone reading at the eighth grade level when S.A. only went to the fifth grade. Based on the misleading history and subjective tests of questionable validity and the MCMI-III test for which S.A. lacked proficient reading level, she claims that the opinion is merely a net opinion. We disagree.

N.J.R.E. 703 permits an expert witness to rely on facts or data that other experts in the field would reasonably rely upon whether or not the facts or data are admissible in evidence. Here, the experts were permitted to rely on information concerning Jenny even though that information was not admissible into evidence if it assisted them in their evaluation.

S.A.'s contention that Dr. Perdomo's evaluation was based on inaccurate facts and his clinical tests were designed for someone with a higher reading level than S.A. was brought out on cross-examination. Thus, the credibility of the expert was challenged. Hisenaj v. Kuehner, 194 N.J. 6, 24 (2008). This argument involves nothing more than an attack on the witness's credibility which was left for the trial judge to weigh in determining the weight to be attributed to that testimony. We defer to a trial judge who makes that credibility determination, especially where it is not lacking in reasonable support. New Jersey Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005). We are persuaded that in light of all of the information provided to Dr. Perdomo and his two separate sessions with S.A., it was reasonable for the trial judge to find his testimony credible.

S.A. also contends that it was error to discount the earnings testified to by S.A. from the sale of Avon products. S.A. contends that she should not be penalized because she could not extrapolate her weekly earnings mathematically. The earnings testimony, while not critical to the trial judge's decision, appeared inadequate because there was no documented support, such as pay stubs or copies of cancelled checks. It had nothing to do with S.A.'s mathematical acumen or lack thereof.

In any event, it was clear that the trial judge's determination that despite S.A.'s completion of various courses and services offered, she still had not cured the causes of the harm to her children and was not likely to do so in the foreseeable future.

In challenging the third prong of the test, the trial judge found that numerous services were provided but S.A. still lacked insight and ability to effectively parent and keep her children safe. S.A. contends that DYFS failed to provide appropriate services individually structured to aid the family and that the efforts were meager to attain the goal of family reunification. She also argues that DYFS failed to seek placement with family resources before foster care. For instance, there was no effort to see if paternal relatives could help. She also asserts that DYFS failed to explore kinship legal guardianship as an alternative to termination.

No one quarrels with S.A.'s compliance with the services offered to her, which were extensive. However, as the trial judge pointed out, citing DMH, supra, 161 N.J. at 393, DYFS's efforts, "are not measured by their success." Here, the services provided exceeded those in D.M.H., which our Supreme Court deemed sufficient. The contentions that the services were not provided in a timely manner and not structured in a way to aid the family really are factual issues which the trial judge resolved against S.A. Indeed, there is ample evidence to support the trial judge's determination that DYFS provided the family with adequate resources.

The contention that kinship legal guardianship should have been used as an alternative to termination is rejected. N.J.S.A. 3B:12A-1(c) states, "[i]n considering kinship legal guardianship, the State is seeking to add another alternative, permanent placement option, beyond custody, without rising to the level of termination of parental rights, for caregivers in relationships where adoption is neither feasible nor likely. . ."

N.J.S.A. 3B:12A-6(d)(3) only allows a court to appoint a kinship legal guardian when adoption is neither feasible nor likely. Kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1(a)(3), where permanency provided by adoption is available. N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 509 (2004).

Here, kinship legal guardianship is inappropriate. Maternal relatives on Long Island are hoping to adopt Mary and Andy. Cindy does not currently reside with a family member of S.A., but resides with Jenny's biological father who wants to adopt her. Under these facts, there exists the very real likelihood that the children will be adopted. Thus, kinship legal guardianship is not an available alternative to termination. The third prong of the best interests test was satisfied.

With regard to the fourth and final prong of the best interests standard under N.J.S.A. 30:4C-15.1(a), the court found termination of S.A.'s parental rights will not do more harm than good. S.A. contends that there was no comparison of the bond that she has with her children to the bond that the children have with their potential adoptive parents or current caretakers.

Dr. Burr found that there was only a negligible bond between Andy and his mother. Dr. Burr found that Mary did enjoy a bond with her mother earlier in her life but that she was ready to move on to a maternal figure who could provide for her needs and recognized that her mother could not do so. The comparative bonding evaluations were unnecessary in view of the results obtained as to S.A.'s relationship with her two youngest children. No bonding evaluation was conducted between S.A. and Cindy in August 2007, because Cindy made it clear that she desired to remain with Jenny and her father and not be returned to her mother. The record, as a whole, supports the trial judge's determination that terminating S.A.'s parental rights to Cindy, Mary and Andy will not do more harm than good. However, as previously stated, we withhold final judgment as to termination of S.A.'s parental rights as to Andy.

II.

A.P. argues that the trial judge's findings as to harm only relate to the actions of S.A. because he was not living in the house at the time of removal. He contends that the deplorable conditions of the house cannot be attributable to him. In Re Guardianship of D.M.H., supra, 161 N.J. at 379 makes it clear that a parent, even if not living with the children, "shares in the responsibility and blame to the plight of [the] children." By not providing assistance to S.A. or preventing the "deplorable conditions" in which Andy was living, A.P., "compounded the mother's neglect and contributed to the circumstances that required the eventual placement of the children in foster care." Id. at 379-80. The trial judge was presented with adequate and credible evidence on which to base the finding that Andy had suffered harm. He was living in a roach infested apartment and his mother, on the day of the removal, refused to purchase food for her children. While there may have been a dispute whether A.P. spent overnights in the apartment or not, that was immaterial to the finding of harm. It was sufficient that he permitted Andy to live in those conditions and in this way, contributed to Andy's harm.

With regard to the second prong which addresses parental unfitness, A.P. never offered his son a stable home and was non-compliant with any services offered to him by DYFS. He contends that there is, however, no evidence presented that he was unwilling to eliminate the harm that Andy suffered when he was removed. He claims that he was never given the opportunity to provide a stable home because DYFS never asked if he wanted custody of Andy nor did they evaluate his apartment to determine if it would be suitable for Andy to live with him.

Our Supreme Court has recognized that Prongs I and II are related to one another and "evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." D.M.H., supra, 161 N.J. at 379. Here, the trial judge stated that under Prong I, A.P. had at no point during the case, "ever offer[ed] a stable home for his son; neither parent has been able to provide a safe and secure environment for their children."

The facts here are similar to those in D.M.H., where our Supreme Court affirmed the trial judge's finding that DYFS had proven Prong II of the best interests standard because the father allowed the children "to be neglected and to live in conditions that DYFS caseworkers described 'deplorable.' Although there seems to be no question that he loves them, he was not able to fulfill any of his parental duties and has allowed the children to languish in foster care for many years without a permanent home." Id. at 383.

Similar to D.M.H., A.P. has allowed Andy to live in conditions that DYFS considered deplorable and until the time of trial, never expressed an interest in taking custody of Andy. He seemed very content to do his supervised visitation for an hour, but nothing more. He has failed to take any steps to aid in the permanent placement of his son. A.P. attended a parenting class and a psychological evaluation, but then failed to attend psychosexual evaluation or counseling. The absence of additional expert testimony which could have further elucidated A.P.'s parenting abilities is attributable to his missed appointments both for psychosexual evaluations and a bonding evaluation with Andy. We, therefore, are satisfied that the trial judge correctly decided that the State met its burden by clear and convincing evidence under Prong II.

With regard to whether DYFS offered sufficient services to A.P., it is clear that reasonable efforts were made to provide services but he failed to take advantage of them. A.P. contends that the psychosexual evaluation appointment conflicted with his work schedule. A.P. asserts that he does not read in any language, has limited English skills and DYFS failed to help him navigate through the expert evaluations.

A.P.'s language and literacy restrictions do not alter the standard of reasonableness which DYFS must meet. A.P. did not inform DYFS of his scheduling conflicts even though he was reminded of the appointments in person. Moreover, he never attended any of the hearings on the initial order to show cause, its return date or any of the compliance reviews that were scheduled by the court. He only appeared at the time of trial. A.P. could make the time with his work schedule to see his son, which is something he may have enjoyed doing on a weekly basis, but nonetheless did not make any accommodation to keep the appointments that were scheduled for the psychological or bonding evaluations. He should not be rewarded for finally showing up at trial.

We need not repeat what we said concerning kinship legal guardianship because it would not be applicable where adoption is likely, as it is here, for Andy. The third prong of the best interests test was established.

With respect to the final prong of the best interests test of whether the termination of parental rights will do more harm than good to the child at issue, there is no bonding evaluation upon which this determination is ordinarily made. The trial judge's opinion makes no mention of A.P. in connection with the fourth prong. This is not surprising since there is no evaluation to refer to in terms of determining the issue. The record does indicate that Andy was receptive to his father's visits and his father behaved appropriately. From the observer's notes on these visitations, it is uniformly recited that there was an exchange of affection between father and son.

While termination may focus on a child's need for permanency and the ability to care for the child in the foreseeable future, we do not consider that sufficient to substitute for the lack of a bonding evaluation, especially in view of the relationship that appears between the father and son as documented in the record. Expert testimony should be available to the court on this issue to make the determination of whether a termination of parental rights would do more harm than good. In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999).

We deem it appropriate to remand the matter as to A.P. for a psychological and bonding evaluation and a comparative bonding evaluation with present caretakers and/or potential caretakers. Because this is a termination proceeding, we direct that the entire process be expedited and that the evaluations be completed and reports presented to the trial judge with a plenary hearing on this remaining issue. All of these proceedings shall be completed within seventy-five days of the date of this opinion. The trial judge shall render a decision as soon as practicable thereafter. A.P. shall order the transcript of the remand proceedings for all parties, and simultaneous supplemental briefs shall be filed within twenty days of service of the transcript. The Clerk of this court shall relist the appeal on the earliest available calendar.

 
Affirmed as to termination of S.A.'s rights to Cindy and Mary; reversed as to termination of A.P.'s rights to his son and remanded for further proceedings consistent with this opinion. We withhold final judgment as to S.A.'s parental rights as to Andy. Jurisdiction is retained as to both appeals as to Andy.

These appeals calendared back-to-back are consolidated on the court's motion for purposes of opinion only.

The names used for the children are fictitious names. Initials have not been used because of the number of children and the fact that one of the children is named after his father and has similar initials.

(continued)

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32

A-2499-07T4

RECORD IMPOUNDED

 

 

January 14, 2009