NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. L.M.T.

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5209-06T45209-06T4

A-5504-06T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.V.H.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF D.H. AND D.H.,

Minors-Respondents.

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

L.M.T.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF D.H. AND D.H.,

Minors-Respondents.

 
Submitted March 3, 2009 - Remanded March 5, 2009

Resubmitted April 20, 2009 - Decided

Before Judges Winkelstein, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FG-20-112-05.

Krevsky, Silber & Bergen, attorneys for appellant, D.V.H. (Bruce H. Bergen, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant, L.M.T. (Anna F. Patras, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent, New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann Avram Huber, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor respondents, D.H. and D.H. (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant L.M.T. is the biological mother, and defendant D.V.H. is L.M.T.'s husband and the biological father, of two children, Du.H. born in August 2002, and De.H. born in September 2003. Defendants appeal from an April 20, 2007 order, memorializing a bench opinion, terminating their parental rights to the children.

The court found that De. was the victim of Shaken Baby Syndrome and, based on the circumstantial evidence, defendants caused De.'s injury. The court found that the prongs of N.J.S.A. 30:4C-15.1(a)(1)-(4) had been satisfied so as to warrant termination of defendants' parental rights to both children.

After receiving the parties' briefs on appeal, by order of March 5, 2009, we remanded to the trial court to evaluate L.M.T.'s ineffective assistance of counsel claim that her trial attorney refused to allow her to testify as a witness at the termination of parental rights trial. See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 308-09 (2007) (holding that ineffective assistance of counsel standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) are applicable to termination of parental rights proceedings). Following the remand hearing, in which the trial court heard testimony of L.M.T. and her trial attorney, the trial court concluded that its decision to terminate the parental rights of L.M.T. to Du. and De. would not have been different had L.M.T. testified during the termination trial. The court consequently rejected L.M.T.'s ineffective assistance of counsel arguments and memorialized that decision in an order dated April 20, 2009.

Having reviewed both the initial trial record and the record of the remand proceedings, we affirm both the trial court's initial order of April 20, 2007, terminating defendants' parental rights, and the court's subsequent order of April 20, 2009, denying L.M.T.'s ineffective assistance of counsel claim.

I The Evidence

A. Removal and Investigation

L.M.T. and D.V.H. are Vietnamese. They managed a nail salon in Newark and both worked long hours. L.M.T. speaks Vietnamese and almost no English. Vietnamese interpreters were used during the termination trial. Other than when in the courtroom, L.M.T.'s attorney used D.V.H., with the consent of D.V.H.'s counsel, to interpret for L.M.T. when he spoke with her.

The Division of Youth and Family Services (DYFS) was first referred to the family by St. Peter's Medical Center on Saturday, December 13, 2003. Three-month-old De. was admitted the day before, suffering from a hematoma and other serious injuries. Hospital personnel suspected Shaken Baby Syndrome. Upon learning of De.'s injuries, DYFS removed both children from their parents' custody.

DYFS and various law enforcement agencies conducted an investigation into the cause of De.'s injuries. D.V.H. told a DYFS investigator that he first noticed De. crying and acting irritably on Tuesday night, December 9. After being fed, De. went to sleep. Defendants did not obtain medical attention for De. until Friday, December 12, when L.M.T.'s mother told D.V.H. to call 9-1-1 after De. had a seizure.

D.V.H. and L.M.T. gave statements to law enforcement personnel on December 13. L.M.T. stated that D.V.H. was with De. on Thursday, December 11, when De. began crying loudly and frequently around 2:00 p.m. to 3:00 p.m. That night, L.M.T. arrived home from work and noted that De. was crying and his feet and arms were twitching and shaking.

D.V.H. took the child to a doctor's office the following morning, Friday, December 12, after De. vomited, and because his eyes were still twitching. L.M.T. stated that D.V.H. told her on the phone that the doctor's office was too crowded, so she told him to bring the child home. D.V.H. then took De. to L.M.T.'s mother's house. After L.M.T. returned from work, she and D.V.H. went to her mother's house to get De. He was crying and twitching and could not keep his food down. After they returned with the child to their house, D.V.H. called emergency personnel who took De. to the hospital by ambulance.

L.M.T. told the police that a babysitter cared for her children while she and D.V.H. worked; the babysitter last saw both children on Wednesday, December 10; and De. did not appear ill when defendants picked him up that night.

D.V.H. told the police that the children had been with the babysitter on Monday, Tuesday and Wednesday, from 10:00 a.m. to 7:00 p.m., contrary to L.M.T.'s statement that D.V.H. stayed home with De. on Wednesday, December 10. He said the children stayed with him on Thursday, December 11, while his wife worked. D.V.H. first noticed that De. was crying and that his hand was shaking by early afternoon that day. His wife arrived home at 7:00 p.m., but he did not mention De.'s problem to her. L.M.T., however, could see that De. was crying and twitching. D.V.H. asserted that he worked on Friday, December 12, and that Du. was with the babysitter and De. was with L.M.T.'s mother. When defendants picked De. up that night, he was still crying and shaking, so they called 9-1-1.

L.M.T.'s sister, L.T., gave a statement. She had not seen De. after he was born until Friday, December 12, when D.V.H. called and told her that De. was sick. D.V.H. brought De. to L.T.'s residence, and she told D.V.H. that the child needed medical attention; D.V.H. told her that a "family doctor said that the baby was okay."

In January 2004, DYFS interviewed D.V.H., who reiterated that he had stayed with the children on Thursday, December 11, and that he noticed De.'s medical problems that day. No one other than he or L.M.T. was with De. on December 11.

D.V.H. said that the next day, Friday, Du. was with the babysitter and De. was with L.M.T.'s mother. When D.V.H. picked up the child that night, De. was still experiencing problems so D.V.H. called emergency personnel. L.M.T. confirmed that version of the events, except to note that D.V.H. took De. to the doctor on Friday, but did not stay because the doctor's office was too crowded.

Law enforcement personnel interviewed the babysitter, T.D. She last sat with De. on Wednesday, December 10. She said that De. acted normally, and nothing seemed wrong with him when he left. She sat with Du., but not De., on Friday and Saturday, December 12 and 13, until the police retrieved Du.

De. remained at St. Peter's Medical Center from December 12, 2003, until he was transferred to Children's Specialized Hospital in January 2004. He had sustained "severe traumatic brain injury secondary to non-accidental trauma." He suffered from "persistent seizures" and "needed to be on a ventilator." He was discharged to his current foster home in August 2004. Du. was placed in various temporary foster homes until his current placement with the same foster parents as De. in May 2004.

Gladibelle Medina, M.D., the State's expert in pediatric medicine, examined De. on December 13, 2003, while he was in the ICU at St. Peter's Hospital. De. was paralyzed and intubated, and had a hemorrhage in his eye caused by force applied to his face. His entire retina had been affected. Testing showed old blood in De.'s forehead and new "fresh" blood in the back of his head.

Based on these symptoms, the lack of any other explanation for his injuries, and the sudden onset of symptoms, Dr. Medina concluded that De. suffered from a "subdural hematoma" caused by "non-accidental head trauma." Dr. Medina referred to De.'s condition as Shaken Baby Syndrome. She considered the "old blood" to be evidence of an earlier brain injury, for which she had no explanation. As a result of his injuries, De. is blind, cannot walk, suffers from numerous spasms and both "infantile" and "tonic/clonic" seizures each day, and has difficulty swallowing and communicating. The doctor believed that the injury occurred within seventy-two hours of De.'s admission to the hospital on Friday, December 12. She later clarified that the actions that caused De.'s injuries occurred either Wednesday night or Thursday.

The police charged D.V.H. with child neglect on May 18, 2005, for failure to obtain medical assistance for the child. He was admitted to the Pretrial Intervention Supervisory Treatment Program, which he completed prior to the termination trial.

B. Services Provided By DYFS

DYFS provided a number of services to defendants, including parenting classes, psychological, psychiatric and bonding evaluations, interpreters and visitations. DYFS also assessed family members to see if they could care for the children. DYFS submitted referrals for mental health services for both L.M.T. and D.V.H., and both defendants participated in psychiatric and psychological counseling.

Mark Singer, Ed.D., performed a psychological evaluation of defendants. He concluded that both had a limited understanding of De.'s medical condition. Defendants did not offer an explanation as to how their son received his injuries. Given the uncertainty surrounding who caused De.'s injuries, and defendants' challenges and understanding in dealing with De.'s medical condition, Dr. Singer believed that defendants' ability to "function effectively as parents" may be limited, especially in light of the nature of De.'s injuries and the type of medical care he may require. Dr. Singer recommended that defendants receive parenting classes and individual psychotherapy and have supervised visitation with the children.

DYFS had difficulty locating either an interpreter for L.M.T. who could assist during defendants' counseling sessions, or a counseling service that used or allowed the use of translators. As a result, although the order for removal was filed in December 2003, counseling services did not begin until July 2004. D.V.H. did not need an interpreter; however, he never approached DYFS and asked that his individual counseling begin before an interpreter was found for L.M.T.

Shanequa Coelho, the DYFS caseworker assigned to the family as of the trial date, and the employee through whom DYFS presented its documentary evidence, testified that although D.V.H. did not need a translator, DYFS wanted defendants to receive counseling together. Therefore, D.V.H.'s counseling did not begin until an interpreter was found to assist L.M.T. Ultimately, counseling services were provided through Family and Children's Services (FCS).

DYFS also provided defendants with visitation, first with De. at the hospital and with Du. at a DYFS office, and then with both boys at Reunity House, a DYFS contract provider that supervised visits. Visits began in January 2004 on a biweekly basis, and continued at Reunity House as of trial, consisting of two hours of supervised visitation per week. Shortly before trial, Reunity House notified DYFS that it believed that visitation there was inappropriate because the goal of Reunity House was reunification rather than adoption.

Coelho observed two visits, in September 2005 and February 2006. At the September 2005 visit, defendants were unhappy with their children's weight and began the visit with a negative demeanor. Coelho explained that she would be willing to address the issue after the visit, but defendants could not exhibit such poor demeanor during the visitation with the children. Ultimately, defendants calmed down and the visit proceeded. Coelho described that visit as "strained" and not positive. At the 2006 visit, D.V.H. scolded Du. for being a "bad boy" because he misbehaved at school. Du. acted out.

Coelho pointed to several problems DYFS had with Reunity House. First, it failed, as required, to provide reports documenting the visits and progress made by the family, despite repeated requests by DYFS. Moreover, at certain visits when D.V.H. improperly treated the children, Reunity House personnel failed to intercede.

Mr. C., the boys' foster father, pointed out that Reunity House never reported whether De. suffered from seizures during any of the visits, which Mr. C. found concerning because De. normally had several spasms per day. He also testified that Reunity House had occasionally refused to accommodate his and the children's need to alter the visitation schedule; the children missed some visits because they were either sick or had doctor's appointments. In a letter to the court expressing their various concerns, the foster parents advised that they had never received reports from Reunity House regarding the children's visits with defendants.

Defendants enrolled in parenting classes at Reunity House. They had not completed the classes by 2006, even though they had been enrolled for over two years. Nevertheless, in correspondence dated November 25, 2005, Reunity House staff members expressed their belief that defendants could parent their children safely and effectively, particularly if they received courses in physical and occupational therapy so that they could better cope with De.'s needs.

In November 2004, the court ordered DYFS to enroll defendants in occupational and physical therapy courses. DYFS contacted several providers and schools, including the St. Joseph's School for the Blind, but was unable to locate any providers that could offer those services to defendants, particularly because the children did not live with defendants.

In March 2005, the medical staff of Children's Specialized Hospital consulted with defendants and explained De.'s condition and needs. Hospital staff noted that even by that time, defendants still seemed "not to accept [De.'s] condition or their role" in caring for him. They never independently sought further consultations to learn more regarding De.'s condition and needs.

C. Placement and Current Situation

Du. was placed with his current foster parents in May 2004 and De. was placed there three months later. The foster home had been designated as a Special Home Service Provider (SHSP), after the foster parents received training from DYFS and were CPR trained and certified. The foster father, Mr. C., was a full-time house father, while Mr. C.'s wife provided the family's income, working full-time. Mr. C. called Du. a normal child who sometimes exhibited "excessive" behavior such as biting Mrs. C. and E., the foster parents' adopted Vietnamese daughter, and by failing to pay attention in school. According to Mr. C., Du. and E. were playmates and Du. "loved [E.] as a sister."

As of the trial date, De. required twenty-four-hour supervision. On a typical day, Mr. or Mrs. C. awakened De., gave him his seizure medications, fed him, and then showered with him. They then took him to school, initially at a Head Start program. Beginning in September 2006, he attended either the St. Joseph's School for the Blind, a special school for disabled children, in which the foster parents were able to enroll him through their own efforts, or to therapy/rehabilitation appointments. When De. attended school, he received occupational, speech and physical therapy. At 4:00 p.m., Mr. C. picked up De. and the other children.

Once home, Mr. C. administered De. his medications and therapy. During therapy sessions, Mr. C. used a "stander," a device he obtained that helped De. build strength in his legs with the goal of assisting him to walk someday. De. can stand for one to two minutes while holding someone's hands. Mr. C. was trained by, and watched, the various therapists who provided occupational, speech and physical therapy to De. By doing so, he learned how to provide that service to De. when therapists were not available.

Mr. C. then played with De. and made dinner, giving De. constant supervision. After Mrs. C. came home from work, the family had dinner and then played together until De. received more medication and went to sleep. The foster parents were willing to adopt both children, but only if they were together, and were willing to continue to provide the children with information regarding their Vietnamese heritage.

Jean Brown, R.N., a DYFS contract employee who monitored the care of disabled children placed in foster homes, was assigned to De. in May 2005. She testified that De. could not see, walk or talk, or bathe or dress himself. He has difficulty swallowing, making it difficult to administer his medication. The foster father was able to administer De.'s medication correctly, and to properly assist De. in eating. Brown confirmed that the foster parents were meeting De.'s needs.

Defendants expressed their intention, if reunification occurred, to split their time between their nail salon and caring for De. One would stay with De. while the other worked. Just before trial, they moved into a new residence that DYFS found was an acceptable accommodation for the family.

D. Expert Psychological Testimony

Leslie Williams, Ph.D., DYFS's expert psychologist, performed psychological and bonding evaluations of defendants, the foster parents and the children in November 2005. He noted that Du. called the foster parents "daddy and mommy." Du. and E. had a close relationship as exhibited by their playful behavior.

The foster father brought Du., De. and E. to the session with the biological parents. Du. was more interested in playing with E., who was in another room during the session, than in staying with defendants. Du. told Dr. Williams that he had "two mommies and daddies." Du. preferred to live with his foster parents and E. Because of De.'s condition, the doctor could not determine if he was bonded with his foster parents or defendants, but the doctor observed that Du. "was more spontaneously affectionate" with his foster parents than with defendants.

Defendants denied to Dr. Williams that they abused De. Dr. Williams was nevertheless concerned because defendants delayed seeking care for De. after his injuries became apparent. De. was severely injured and would require "intensive specialized medical and educational services for the rest of his life." However, neither defendant demonstrated "an adequate understanding of De.'s problems," and made insufficient independent efforts to learn how to deal with De.'s disability. L.M.T. continued to be surprised when De. did not respond to her questions. Dr. Williams concluded that neither defendant was capable of adequately parenting the children because neither understood or could meet De.'s medical needs.

Du. viewed the foster parents as his psychological parents and was more closely bonded to them than with defendants. Dr. Williams opined that while Du. was "undoubtedly familiar with [defendants]," he would suffer "severe and enduring psychological harm if removed from his foster parents" because he looked to them "as stable and secure providers of nurturance in his life." Du. would not suffer substantial harm if defendants' parental rights were terminated. Du. was also so closely bonded with E. that any termination of that relationship would cause Du. a "sense of loss and grief." Dr. Williams conceded that individuals can improve their parenting ability over time, but noted that since nothing had changed from the time of De.'s injuries through 2005, there was little reason to believe defendants would change now.

Defendants presented Richard Klein, Ed.D. as their psychological expert. D.V.H. told him that he understood De.'s needs. D.V.H. demonstrated a high average level of intelligence. Dr. Klein concluded that D.V.H. showed no indications of significant psychopathology, that Du. was comfortable with his biological father, and that Du. had "strongly and positively bonded to his father." Dr. Klein believed that D.V.H. was competent to parent his children and did not present a danger to them.

Dr. Klein's psychological evaluation of L.M.T. led him to conclude that she was of average intelligence, showed no significant signs of psychopathology, or "explosive behavior disturbance." Dr. Klein concluded that L.M.T. was competent to raise her two children independently. The doctor concluded that because there was no evidence that defendants caused De.'s injuries, and because defendants would take steps to share their work and child care responsibilities, they could protect the children and meet their needs.

Dr. Klein's conclusions were based on his opinion that "the psychological profile of [defendants] did not fit the profile . . . of perpetrators of Shaken Baby Syndrome." If he was presented with prima facie evidence that one of the parents was responsible, then he would concede that living with that individual would create a danger to the children.

He performed separate bonding evaluations of the parents and children. De. was so handicapped that his level of bonding with others could not be determined. Du. appeared bonded to his foster father and to defendants, and to a lesser extent to his foster mother. Du. was also strongly bonded to E.

Dr. Klein recommended that the children be reunified with defendants, and that the foster parents become "involved in a very gradual transition." Dr. Klein could not state with any certainty that Du. would be irrevocably damaged or traumatized by a return to defendants. The relationship between Du. and E. should be "salvaged" as well. The foster parents should be able to act as an "extended family" and assist defendants in caring for De.

Dr. Klein acknowledged that his wife was present for the bonding evaluations and took notes at his direction. He took no notes, but his report and recommendations were based on his evaluation of the notes his wife had taken, together with his observations during the evaluations. Mr. C. claimed that Dr. Klein did not observe his and his wife's interactions with their children, but that Dr. Klein's wife did. Dr. Williams opined that if that were true, then Dr. Klein's conclusions would be invalid because only a licensed psychologist can perform a bonding evaluation, and Dr. Klein's wife lacked the necessary qualifications to conduct the evaluation.

Dr. Williams also questioned Dr. Klein's opinion that the children should be gradually reunified with defendants, with the foster parents and E. remaining in the children's lives to both ease the transition and allow the biological parents to improve their caretaking abilities. Dr. Williams believed that the children required permanency, and if termination of parental rights were delayed any longer, Du. could become "depressed, anxious and confused," and could suffer regression.

Mr. C. also noted that Dr. Klein told him during the bonding evaluation that De. might need to be institutionalized at some point, and that Dr. Klein believed that children should remain with their biological parents, particularly when the children would be of a different race from the foster parents.

E. Trial Court Opinion

Judge Daniel issued a comprehensive bench opinion on April 20, 2007. The court described the relevant law with respect to a termination of parental rights and considered each of the four statutory prongs of N.J.S.A. 30:4C-15.1(a), making specific findings to support its conclusion to terminate defendants' parental rights.

II The Legal Standard

Parents have a constitutional right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Still, "[t]he State as parens patriae may act to protect minor children from serious physical or emotional harm . . . . [which] may require a partial or complete severance of the parent-child relationship." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986) (quoting In re Dep't of Pub. Welfare, 421 N.E.2d 28, 36 (Mass. 1981)), superseded by statute on other grounds as stated in In re Adoption of Children by G.P.B., 161 N.J. 396 (1999).

The burden rests on the party seeking to terminate parental rights to demonstrate by "clear and convincing evidence" that the severance of the parental ties is required. G.L., supra, 191 N.J. at 606. The balance between fundamental parental rights and the State's parens patriae responsibility is achieved through the best-interests-of-the-child standard. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Under that standard, parental rights may be severed only if:

(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) [DYFS] has made reasonable efforts to provide services to help the parent correct the circumstances that 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).]

These standards are not "discrete or separate." In re Guardianship of K.H.O., supra, 161 N.J. at 348. They overlap to provide a "comprehensive standard that identifies a child's best interests." Ibid.

An appellate court's review of a trial judge's decision to terminate parental rights is limited. G.L., supra, 191 N.J. at 605; In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). In reviewing the factual findings and conclusions of a trial judge, an appellate court is required to accord deference to the trial court's credibility determinations based upon the opportunity of the judge to see and hear the witnesses. G.L., supra, 191 N.J. at 605; Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). An appellate court should defer to the judge's finding if they are supported by adequate, competent, substantial and credible evidence. G.L., supra, 191 N.J. at 605; In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993). Thus, as long as the trial judge's findings of fact and conclusions of law are well grounded in the record and the law, they should not be disturbed. In re Guardianship of J.N.H., supra, 172 N.J. at 472; In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).

III Discussion

A. Harm to Children

Defendants claim that the court erred in concluding that DYFS proved that the first statutory prong had been met. We disagree.

N.J.S.A. 30:4C-15.1(a)(1) "requires a clear and convincing showing that the child's safety, health and development have been or will continue to be endangered by the parental relationship. The primary focus is the issue as to whether the parent has harmed the child or may harm the child in the foreseeable future." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 113 (App. Div.), certif. denied, 180 N.J. 456 (2004). The harm shown must either threaten the child's health or likely have continuing deleterious effects on the child. In re Guardianship of K.H.O., supra, 161 N.J. at 348. Delay in establishing a stable and permanent home can create the harm that parental termination seeks to avoid. In re Guardianship of D.M.H., supra, 161 N.J. at 383.

Judge Daniel found that DYFS had proved by clear and convincing evidence that the children's health and safety has been or would continue to be endangered by the parental relationship. He found that De. was the victim of Shaken Baby Syndrome and that the evidence, though circumstantial, showed that De. was injured sometime between Wednesday evening, December 10, and Thursday morning, December 11, while in defendants' sole care and custody. The court found that the babysitter could not have injured De., and noted that no evidence showed any potential perpetrators other than defendants.

The record fully supports the trial court's findings. Dr. Medina testified that De. was injured, at most, seventy-two hours before he was brought to the hospital, i.e., on Wednesday night or Thursday morning. Defendants produced no contrary evidence. All of the individuals involved in caring for De. just before the injuries occurred were questioned and exonerated by law enforcement personnel. Although defendants denied causing De.'s injuries or knowing who did, the time line of events supports the court's conclusion that neither the babysitter nor the maternal grandmother could have injured the child, and L.M.T.'s sister had not seen the baby since his birth. Other than defendants, no one else had access to the child.

The court's reliance on circumstantial evidence was not an abuse of discretion. The State can meet its burden of proof through circumstantial evidence. State v. Franklin, 52 N.J. 386, 406 (1968). Circumstantial evidence can be "more certain, satisfying and persuasive than direct evidence." State v. Thomas, 256 N.J. Super. 563, 570 (App. Div. 1992) (quotation omitted), aff'd, 132 N.J. 247 (1993). Direct evidence of abuse is frequently difficult to obtain because of the "closed environment in which [it] most often occurs and the limited ability of the abused child to inculpate the abuser." N.J. Div. of Youth & Family Servs. v. A.C., 389 N.J. Super. 97, 108 (Ch. Div. 2006). Against this background, the court's inferences that defendants were the only ones who could have caused the child's injuries are supported by the record.

What is more, defendants delayed seeking treatment for De. immediately after the event causing his injuries. L.M.T. claims that Dr. Medina stated that any delay did not exacerbate De.'s injuries. Even if that is so, the delay shows that defendants were not able to recognize serious harm to their child, and the delay undoubtedly caused the child unnecessary suffering as evidenced by his seizures, vomiting, and crying throughout the delay until he received medical attention.

The evidence further demonstrates that defendants had failed to grasp the seriousness of De.'s medical condition and had made no effort in the four years since his injuries to obtain instruction on how to care for his needs. Such evidence supports a finding that defendants presented a risk of harm to the children that is likely to have continuing deleterious effects on them, especially De.

We are mindful that a court may not "impute [one parent's] deficiencies to the [other parent] without performing an individualized factual analysis." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 290 (2007). Parental rights are individual and fitness must be evaluated on an individual basis. Id. at 288. "To be sure, termination of one parent's rights is not appropriate merely because the other parent is unfit or has surrendered his or her rights." Ibid. Yet, the court may, under appropriate circumstances, evaluate one parent's parental rights in light of that parent's cohabitation with the other parent. Id. at 289-90.

Here, given the facts, it was appropriate for the court to infer that both parents are responsible for De.'s injuries. They cohabit with each other, and De. was in their care when, according to the weight of the evidence, he sustained his injuries. Under these facts, the court was not required to make a specific finding as to which of the parents specifically caused the injury. With both parents denying their involvement, given the medical evidence, the court did not err by inferring that both were responsible. The only other alternative, as L.M.T. seems to suggest in her supplemental brief, is that where the court cannot discern which parent caused the injury when the child was in both parents' care, would be to find that the proofs were insufficient to show that either parent caused the injury. That would lead to an absurd result.

B. Inability to Eliminate Harm

The second prong of the statutory test requires DYFS to prove that the parents were unwilling or unable to eliminate the harm facing the child, including the harm that separation from foster parents may cause. N.J.S.A. 30:4C-15.1(a)(2). Evidence supporting the first statutory prong may support the second prong, In re Guardianship of D.M.H., supra, 161 N.J. at 379, which "relates to parental unfitness." In re Guardianship of K.H.O., supra, 161 N.J. at 352. Parental unfitness can be demonstrated by showing that the parents are unable to eliminate the harm that endangered the children, that the parents failed to provide a safe home for the children, or that a delay in permanent placement would harm the children. Ibid.; N.J.S.A. 30:4C-15.1(a)(2). Prolonged inattention to a child's needs, leading to a stronger bond with the foster parents, which if severed could harm the child, can also meet the requirement of this prong. In re Guardianship of K.H.O., supra, 161 N.J. at 352.

Judge Daniel concluded that DYFS met this prong because the children remained at risk. That finding was supported by the record. Because the judge had previously determined that defendants were responsible for De.'s Shaken Baby Syndrome, and defendants continued to deny their responsibility, the children would remain at risk if returned to defendants.

The court found that "[a] delay in permanent placement will add to the harm already facing the children." In addition, a gradual return to defendants as suggested by Dr. Klein would simply confuse Du., who needed a permanent placement with his "psychological parents," i.e., his foster parents. Dr. Williams's testimony supported these findings. The court found that Dr. Williams was more credible than Dr. Klein. Dr. Williams found that Du. had a stronger bond with the foster parents than with defendants, and concluded that removing Du. from his placement with the foster parents would cause severe recurrent emotional harm to the child.

In addition, unlike the foster parents, who independently obtained medical equipment and educational funding for De., and who learned how to care for him by watching and talking with his therapists, defendants have not completed all of their parenting classes, took no independent steps to improve De.'s life, and even by the time of trial still did not understand the nature of his injuries or the care he will require for the rest of his life. Neither parent has gained sufficient understanding to address De.'s disabilities. Meanwhile, Du. has developed a stronger bond with his foster parents than he has with either D.V.H. or L.M.T. Given defendants' failure to understand De.'s medical needs, De. could be subject to additional harm if returned to his parents.

In sum, DYFS proved the second prong of the statutory test.

C. Reasonable Efforts to Provide Services

N.J.S.A. 30:4C-15.1(c)(3) requires that DYFS make "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." "Reasonable efforts" are defined in N.J.S.A. 30:4C-15.1(c) as:

attempts by an agency authorized by [DYFS] to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation.

The reasonableness of DYFS's efforts are not measured by their success, but rather "against the standard of adequacy in light of all the circumstances of a given case." In re Guardianship of D.M.H., supra, 161 N.J. at 393. The goal of such efforts is to encourage and maintain the parent-child relationship as a basis for reunification. Id. at 390. An evaluation of the reasonableness of DYFS's efforts must be done on an individualized case by case basis, In re Guardianship of D.M.H., supra, 161 N.J. at 390, and where the parents are cooperative with each other, as here, "DYFS's efforts should be considered in terms of the family as a whole in determining whether those efforts" were reasonable. Id. at 393.

Judge Daniel found that DYFS proved the third prong of the statutory test. The record supports that finding.

DYFS made numerous services available to the family, including evaluations, medical services, counseling, physical consultations regarding De.'s medical condition, interpretive services and visitation, which occurred shortly after removal and continued regularly. Dr. Singer had initially evaluated defendants and concluded that they should be referred for parenting and counseling. Ultimately, counseling services through a translator began with FCS in July 2004 and continued until it was recommended that defendants undergo different therapy. Defendants participated in the counseling sessions and, while progress was made, neither understood the full extent of De.'s injuries or resultant needs.

Similarly, while DYFS failed to comply with the November 2004 order to enroll defendants in physical and occupational therapy classes so as to better cope with De.'s needs, DYFS attempted to comply but could not because of a lack of the availability of such training for defendants. DYFS also arranged for a meeting between defendants and De.'s physician, in March 2005; at that point, defendants still did not understand the extent of De.'s injuries.

Reports from Reunity House indicated the progress defendants were making and the successful visits they enjoyed with their children. De. was accepted into the St. Joseph's School for the Blind in September 2006, where his multiple disabilities could be addressed. DYFS also provided psychiatric, psychological and bonding evaluations for defendants.

The court addressed De.'s then-current situation, the care received from nurse Brown, and the care offered by the foster parents. Both Brown and Coelho, the DYFS caseworker, testified that the physical and occupational training services rendered to the foster parents were only available to parents with whom the children resided, and were therefore not provided to defendants. The court acknowledged that Mr. C. was "trying to do what's best for these children," and found his testimony to be "credible in all regards."

Because L.M.T. spoke poor English, DYFS looked for translators or Vietnamese-speaking service providers who could assist with the other services, such as counseling, that DYFS planned to offer defendants. While efforts to find such a service or interpreter were unsuccessful for a period of time, causing a delay in the provision of some services, DYFS acted reasonably in this respect.

The court also considered alternatives to the termination of the defendants' parental rights, and found both that there were no such viable alternatives, that the foster parents wanted to adopt the children, and that "any lesser form of permanency will not be a viable alternative" for the children. DYFS had also assessed other family members as possible caretakers of the children, but ultimately, the relatives declined to care for them.

For all of these reasons, the record supports the court's findings that DYFS proved the third prong of the best interests test. DYFS made a reasonable effort to provide defendants with all of the services available to it that would assist them in resolving the problems that led to the removal of their children. That those efforts were largely unsuccessful, in that defendants still do not understand De.'s true medical needs, or the demands those needs will impose on them, does not make DYFS's efforts unreasonable. And, that defendants failed to take advantage of all of the services offered them, such as attending all parenting classes, supports the conclusion that reasonable efforts are no longer necessary.

D. More Harm than Good

The fourth prong of the statutory test requires that the Division prove that parental termination will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The court must decide whether a child would suffer greater harm from a termination of his or her parents' rights rather than from the permanent termination of his or her relationship with foster parents. In re Guardianship of K.H.O., supra, 161 N.J. at 355. Generally, if the child's bond with the foster parents is greater than his or her bond with his or her natural parents, then the fourth prong is met. Id. at 363.

The "central factor" under this prong is the child's need for permanency and stability. Id. at 357. Permanence with a nurturing adult is important. A.W., supra, 103 N.J. at 610. When the child has developed disproportionately stronger ties with foster parents who provide a nurturing home than with their parents, then a termination of parental rights will likely not do more harm than good. In re Guardianship of J.C., 129 N.J. 1, 18 (1992). In such a case, DYFS must prove that separating the child from his or her foster parents would cause serious or enduring emotional or psychological harm. Id. at 19.

Based on the totality of the evidence, the court found that Du. would "suffer severe and enduring harm" if he were removed from his foster parents, which would result in the loss not only of his foster parents, but of E., their daughter, as well, with whom Du. was closely bonded. On the other hand, termination from his biological parents would not cause such harm. In reaching its conclusion, the court afforded "primary status" to "the need for permanency and stability" in Du.'s life. Du. was bonded more strongly with his foster parents than with defendants, and he needed to remain with his brother De. Although the bonds between De. and his sibling were impossible to determine, the court concluded that there was a bond between them that could not be broken.

The court disagreed with Dr. Klein's conclusion that the children would be harmed less by a reunification and the continued participation of the foster parents in the children's lives, largely for the reasons expressed by Dr. Williams. That is, the children need a permanent placement with their psychological parents. Finally, the court noted that it was required to look at both biological parents as a whole in considering whether to terminate either parent's rights because the children would be living with both.

The record supports the court's findings. Dr. Williams, who the court found more credible than Dr. Klein, concluded that Du. was more closely bonded with his foster parents than with his natural parents, and that he would suffer "severe and enduring psychological harm" if separated from his foster parents. According to Dr. Williams, Du. viewed his foster parents as "stable and secure providers of nurturance in his life," and though Du. had a "firm, positive bond" with his foster parents, he did not have a positive bond with defendants. Du. had a "close sibling bond," with E. and if separated from her, he would suffer a "sense of loss and grief." Du. would experience no such harm if separated from defendants.

Dr. Williams strongly disagreed with Dr. Klein's opinion that the children could be slowly reunited with defendants, with the foster parents continuing to participate in their lives so as to remove any trauma to Du. and De. Dr. Williams opined that doing so would not only confuse Du., who views the foster parents as his psychological parents, but would also cause him anxiety and depression. On the other hand, the foster parents offer a stable permanent living environment, which allowed the court to terminate the parental relationship without causing the boys' severe harm, either physically or emotionally.

In sum, although the children will experience some sense of loss at the termination of their parents' rights, the court did not abuse its discretion in finding that more good than harm resulted from the termination of defendants' parental rights.

IV Admission of Documents

D.V.H. asserts that the court erred in admitting into evidence as business records various contact sheets created by DYFS personnel. We disagree.

In termination of parental rights cases, Rule 5:12-4(d) permits DYFS to submit staff reports, subject to N.J.R.E. 803(c)(6) and N.J.R.E. 801(d). That is because "a rule requiring all [DYFS] personnel having contact with a particular case to give live testimony on all the matters within their personal knowledge would cause an intolerable disruption in the operation of [DYFS]." In re Guardianship of Cope, 106 N.J. Super. 336, 343 (App. Div. 1969). Reports containing a DYFS worker's first-hand knowledge of the case provide a fairly high degree of reliability as to the accuracy of the facts. In re Guardianship of Herrmann, 192 N.J. 19, 38 n.6 (2007).

Here, before trial began, DYFS informed the court that it intended to offer into evidence contact sheets created by the caseworkers involved in the case without having to call each caseworker to testify about his or her report. Before Coelho testified, DYFS sought to admit specific contact sheets created by caseworkers other than Coelho. After taking testimony surrounding the creation of the contact sheets, the court concluded that most, but not all, of the contact sheets were admissible. See In re Guardianship of Cope, supra, 106 N.J. Super. at 343-44.

We find no error in the court's analysis. The contact sheets that were admitted were prepared by DYFS caseworkers with direct knowledge of the facts contained in the sheets; they were created reasonably close in time to the facts they described; and they were produced in the usual course of the caseworkers' duties. The reports had a reasonably high degree of reliability, and defendants were free to present evidence contradicting the facts contained in the contact sheets. The sheets did not contain conclusions, but were statements of the facts related by the caseworker.

V Ineffective Assistance of Counsel

Finally, we address defendants' ineffective assistance of counsel claims. The New Jersey Supreme Court applied the Strickland ineffective assistance of counsel standard to termination of parental rights proceedings. B.R., supra, 192 N.J. at 308-09. To succeed in an ineffective assistance of counsel claim, a defendant must first show that counsel's performance was insufficient, so that counsel did not perform as the counsel guaranteed under the Constitution; and second, that but for counsel's ineffectiveness, the result of the trial would have been different. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987). We first apply this test to D.V.H.'s argument that his trial counsel was ineffective because he did not seek to reopen the case after information was presented that an individual other than defendants caused De.'s injuries.

On January 23, 2007, after the trial had concluded, and on the day the court was to give its bench opinion, Judge Daniel informed the parties and counsel that he had received information from the supervisor of the courthouse's interpreter unit indicating that another interpreter was told by an unknown third party that De.'s injuries were caused by one of his grandmothers. The judge had previously conveyed that information to the Union County Prosecutor's Office, and asked the parties to inform him whether they wanted him to proceed with his opinion or look into the matter further.

In a February 27, 2007 proceeding, after the court and the parties received a statement, obtained by the prosecutor's office, from the translator who had brought this matter to her supervisor, D.V.H.'s counsel advised the court that he did not seek to reopen the matter. DYFS and the Law Guardian agreed. L.M.T.'s counsel, however, asked the court to reopen the case, even though L.M.T.'s counsel admitted that the statement resolved his concerns.

The statement said that D.V.H.'s sister-in-law asked the investigator in Vietnamese not to ask D.V.H.'s mother too many questions because "her mind [was] not right." The translator did not recall either the sister-in-law or grandmother making any comments regarding who caused De.'s injuries, and she never told the supervisor that she had overheard such comments. The court therefore declined to reopen the case because defendants' concerns had admittedly been satisfied because the translator unequivocally denied hearing any family member say that the grandmother had caused the injuries. Because the court properly concluded that the matter need not be reopened, D.V.H.'s counsel was not ineffective for failing to ask the court to further investigate the alleged statement by the interpreter.

L.M.T. claimed that she received ineffective assistance of counsel for three separate reasons described in a certification she filed with this court: (1) her attorney refused to meet with her other than before trial in the courthouse; (2) her attorney failed to question De.'s babysitter regarding her potential culpability for his injuries; and (3) trial counsel refused her request to allow her to testify. L.M.T. also claims on appeal that her attorney should have obtained a medical expert to refute Dr. Medina's testimony.

We reject L.M.T.'s claim that her trial counsel was ineffective because he "refused to meet with [her] other than immediately before court, in the courthouse." The transcripts show that L.M.T.'s attorney had an intimate knowledge of the facts and made strong legal arguments during the course of the trial. L.M.T. has not demonstrated that her meetings with counsel were not sufficient to allow counsel to properly prepare for trial and represent her during trial.

We also reject L.M.T.'s argument that counsel should have investigated whether De.'s babysitter caused his injuries. Representatives of the county prosecutor's office questioned the babysitter and she was not charged. The babysitter last babysat for De. on Wednesday, December 10, 2003, beginning at 3:00 p.m. or 4:00 p.m., for two or three hours. De. acted normally the entire time. It is substantially undisputed that De. was fine when he left the babysitter, and De. acted normally when defendants picked him up. The babysitter did not see De. after December 10.

Dr. Medina testified that De. was not injured until late Wednesday night or early Thursday morning, December 10 or December 11, 2003. D.V.H. first noted that De. was experiencing problems on Thursday, December 11. Under these circumstances, L.M.T. has not demonstrated that the babysitter could have injured the child, and thus her attorney was not ineffective for failing to further investigate the babysitter's culpability.

We also reject L.M.T.'s claim that counsel should have called a medical expert to dispute Dr. Medina's testimony. It is unclear what testimony such an expert could have offered other than to challenge the timing of the events that caused De.'s injuries, and L.M.T. does not suggest what the expert would say.

Finally, we address L.M.T.'s contention that counsel was ineffective because he refused to call her as a witness despite her offers to testify. During the remand proceeding, both L.M.T. and her trial counsel testified. In its oral decision on March 25, 2009, the court concluded that had L.M.T. testified at trial as she did during her March 19, 2009 court appearance, the outcome of the trial would have been the same. The court made the following findings:

Having considered [L.M.T.'s] testimony of March 19th, 2009 and having had the opportunity to observe her while she testified in the courtroom, and having considered the evidence in this case I was presented at trial, including but not limited to [L.M.T.]'s statement provided to Detective Claskin on December 13th, [2003], . . . [D.V.H.]'s statement provided to Detective Claskin on that same day . . . the statement of the babysitter given to Detective Claskin on January 8th, 2004, . . . my conclusion regarding the outcome of this case remains the same.

[L.M.T.] testified on March 19th, 2009 she did not injure the child nor did she know who did. However, she has not convinced this Court that she did not either take part in the physical abuse of this child or was not aware of who did. This Court was aware of her position in this regard, namely that she did not injure the child, that she did not participate in injuring this child, nor did she know who did.

This Court was aware of that position, her position, before she took the witness stand on March 19th, 2009. It was made known by her in her statements to Detective Claskin, D.Y.F.S. personnel and various service providers. This information is all in evidence. It was entered into evidence at the time of the trial.

. . . .

As I previously stated in my oral decision back on April 20th, 2007, I find it was not the babysitter who caused these injuries. I find it was not the grandmother, [L.M.T.]'s mom. These injuries are non-accidental in nature, these injuries occurred to this child, to De., while he was with one or both of the defendants in this case while he was in their legal custody and care.

I had the opportunity to read once again my decision that I placed on the record on April 20th, 2007, having obtained . . . a copy of the transcript. And I paid particular attention to my reasons for my decision set forth at Pages 80 through 88 thereof when I concluded the Division met its burden of proof on prongs one and two of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.

The court's April 20, 2007 findings included the following:

The circumstantial . . . evidence, which we all know can be highly probative and at times more convincing than actual direct proofs, leads this Court to conclude that this child was injured, subjected to these injuries, to this abuse while this child was in their sole care and custody. There's . . . been no evidence presented to lead this Court to conclude otherwise.

Even if we were to go back further in time to the 72 hours, which would take us back to Wednesday -- this Court acknowledges that the child was with the babysitter for a period of time. It would take us back to Tuesday night at the earliest. This Court acknowledges the children . . . were with the babysitter for [a] short period of time during the day on Wednesday. This Court still concludes that it was not the babysitter who caused these injuries. I'm convinced by clear and convincing evidence that these injuries . . . to [De.], [occurred] while he was with . . . one or both of his parents. And the proofs are conclusive to this Court. The parents gave statements. Let me break it down further. [D.V.H.] gave statements to Dr. Medina. To . . . Detective Claskin, Case Worker Perez, all within a short period of time following . . . these injuries to this child. And he says he doesn't know who caused these injuries. [L.M.T.] gave statements. She says she doesn't know who caused these injuries to this child.

The injuries are non-accidental in nature. These injuries are as [L.M.T.'s counsel] said in his summations, "horrific." You can't envision what type of a person would do this to a child. These injuries occurred to this child while this child was with one or both of these parents in their legal custody and care. And there's been no evidence presented to lead this Court to conclude otherwise.

 
Simply put, following the remand, the court found that L.M.T.'s testimony would not have added anything to the evidence that had not already been produced during the termination trial. Although the court made no specific findings as to L.M.T.'s credibility, the court did not conclude that L.M.T. played no part in injuring De. On the contrary, the court specifically incorporated into its subsequent decision portions of its findings following the trial on April 20, 2007. The court found that De. was injured while in the care and custody of both defendants; and consequently, both defendants are responsible for those injuries. Thus, the second prong of the Strickland test was not met. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. L.M.T. therefore has not established ineffective assistance of counsel.

Affirmed.

Both defendants raised other ineffective assistance of counsel claims that we have resolved on the original record.

(continued)

(continued)

44

A-5209-06T4

RECORD IMPOUNDED

May 11, 2009