NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. L.L IN THE MATTER OF THE GUARDIANSHIP OF B.L., M.L., AND N.L Minors

(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NOT FOR PUBLICATION WITHOUT THE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-5693-07T45693-07T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

L.L.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF B.L., M.L., AND N.L.,

Minors.

_________________________________________

 

Submitted May 11, 2009 - Decided

Before Judges Reisner and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FG-17-10-087.

Yvonne Smith Segars, Public Defender, attorney for appellant L.L. (Anamaria Bretao Bercik, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa Godfrey, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minors B.L., M.L. and N.L. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, L.L., appeals from the June 16, 2008 order issued following a bench trial before a Family Part judge terminating his parental rights to three of his four children: B.L., M.L, and N.L. We affirm.

On September 4, 2007, the Division of Youth and Family Services (the Division) filed a complaint for guardianship seeking to terminate the parental rights of L.L. and J.L., husband and wife, to three of their four children. The children who are the subjects of the complaint are: M.L., born March 23, 1994; B.L., born September 7, 1995; and N.L., born January 8, 2000. Trial on the complaint was conducted on May 19 and May 20, 2008.

Evidence presented revealed that the Division first became involved with the family in 2000 when it received a report that M.L. was observed with marks on his forearm and neck. It was determined that the marks on the forearm were burn marks caused by M.L. touching a pan on the stove. The allegations of abuse were not substantiated and the Division closed its case.

Five years later, the Division was asked to investigate the family when it was learned that L.L. had been convicted of criminal offenses and faced a custodial sentence. The Division conducted a home visit during which it observed cluttered conditions, including piles of boxes and trash. The Division's investigation also revealed the children's school attendance was unsatisfactory and school officials expressed concern that neither J.L. nor L.L. was supportive of the children's education. J.L. disputed these allegations and stated that once school officials learned the children were infected with tuberculosis, she believed they wanted the children removed from school.

In 2005, L.L. was admitted into the Intensive Supervision Program (ISP). R. 3:21-10(e); See Office of the Governor, Prison Overcrowding; A Plan of Action 9-10 (1982). He was subsequently released. Among the conditions of his participation in ISP was the requirement that he submit to random drug testing. The Division continued to monitor the home situation of the family. During a November 2005 visit, L.L. reported that J.L. was not living with him and the children because she had threatened him at knifepoint and stabbed him in the presence of the children. Police were contacted and L.L. obtained a final restraining order (FRO) issued under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -34. L.L. told the caseworker that he no longer desired services from the Division, and the case file was closed on November 30, 2005.

One month later, the Division received another referral reporting that J.L. and L.L. were both using drugs and that J.L. had been hospitalized on December 28, 2005, as a result of a drug overdose. Around this same time, the Division learned that L.L. had tested positive for cocaine, contrary to the terms and conditions of ISP. The Division attempted to put a safety plan in place but could not do so because of L.L.'s previous criminal record, his recent drug use, and the history of domestic violence between J.L. and L.L. Nonetheless, the Division determined that the children needed to be removed. The children were removed from the home on January 12, 2006, and by order dated January 17, 2006, the court granted custody, care and supervision to the Division. The court ordered a parenting assessment and psychological evaluation of L.L.

Psychological evaluations were performed by Dr. Amy Gulino and Dr. Linda Jeffrey. Dr. Gulino did not testify, but her report was introduced into evidence without objection. Likewise, Dr. MaryAnn McLauglin, who performed parenting evaluations and testing on both parents, did not testify, but her report was also introduced into evidence without objection.

Dr. Gulino met with L.L. four times between March 31 and May 15, 2006, before preparing her findings and recommendations. Dr. Gulino noted that L.L.'s demeanor changed with each appointment. L.L. was at times fidgety and restless and, at other times, he was laid back and relaxed. She also reported that L.L. appeared to be under the influence of drugs, but he denied such. She observed that there was a sense of openness and, at the same time, avoidance of various subjects. While L.L. lauded each of his children, Dr. Gulino characterized such praise as "generic and na ve" and noted that L.L. did not identify the children's shortcomings. She opined that L.L. has little appreciation for the negative impact he has had on his children. She concluded that L.L. did not see the harm the children suffered as a result of seeing their mother stab their father.

At the bonding portion of the evaluation during which the children were present, Dr. Gulino noted that L.L. called his daughter, J.L., "an asshole." She stated that L.L. and his daughter "proceeded to argue as if they were siblings as opposed to father and child." B.L. and N.L. were permitted to eat sugar out of the sugar packets which were designated for coffee. L.L. watched the children spill the sugar over the table; however, he did not require them to clean up the sugar spillage. L.L. engaged N.L. by reading to her the Beck Depression Inventory, a psychological testing instrument which contains questions inappropriate for a six-year-old child. M.L. had minimal contact with the family during the appointment and he appeared detached from his family members.

Dr. Gulino concluded that L.L. had significant difficulty safely parenting his children. He did not set limits, discipline them or converse with them in an age appropriate manner. The psychological testing revealed that L.L. is highly defensive and has difficulty coping. Dr. Gulino opined that L.L.'s coping and avoidant nature make parenting and sobriety difficult for L.L. Dr. Gulino stated:

While it is important for an individual in recovery to modify the places and persons they once associated with while abusing substances, his drastic moves were more indicative of an avoidance tactic. This is particularly true considering with each move, he eventually reverted to [his] old behaviors of substance abuse.

Dr. Gulino diagnosed L.L. with cocaine abuse and personality disorder. She concluded that L.L. has "many high risk factors that would interfere with his ability to provide a safe and secure environment for his children." Dr. Gulino recommended that L.L. have supervised visitation with his children should he remain drug-free and follow ISP requirements.

In May of 2007, Dr. McLaughlin conducted a psychological assessment of L.L. and a bonding evaluation of L.L. and his children in order to recommend treatment needs for the family. L.L. needed redirection and talked continuously during the psychological assessment. It was noted that his clothes were messy and stained. L.L. presented himself in a positive light and avoided uncomfortable topics. Dr. McLaughlin concluded that L.L. did not accept responsibility for his actions. Rather, L.L. blamed his roommate and neighbor for his drug use. Moreover, Dr. McLaughlin noted that L.L. "sees himself as a good parent and a sympathetic and supportive person."

During the bonding evaluation, the children did not reply when L.L. told them that he missed them. Dr. McLaughlin noted that L.L. appeared to be more of a friend than a parent and he had difficulty saying "no" and maintaining order.

Dr. McLaughlin observed no changes to contradict Dr. Gulino's recommendations in her May 2006 report. Dr. McLaughlin noted that "the passage of time has only served to reinforce . . . that J.L. and L.L. are unable to successfully parent their children." She concluded that L.L.'s "self-centered thinking" coupled with his lack of insight would still inhibit L.L.'s ability to parent. Finally, Dr. McLaughlin recommended continued supervised visitation until L.L. became sober.

On November 22, 2006, L.L. completed his ISP Intensive Outpatient Treatment Program in addition to the Cognitive/Life Skills Program. ISP recommended follow-up with the First Step Program through the Cumberland County Drug and Alcohol Center. L.L. was also required to attend at least three Narcotics Anonymous meetings per week. Upon completion of the services, L.L. was scheduled for discharge from the ISP program on June 21, 2007.

A month prior to the completion of the ISP program, L.L. relapsed. He tested positive for cocaine in May 2007. The June 2007 discharge date was withdrawn and L.L. was required to serve one weekend in the Cumberland County Jail. L.L. was told that he would be incarcerated if he had positive drug screens and he was also required to continue his current programs.

L.L. completed and graduated from ISP on August 29, 2007. However, he relapsed in October 2007. On October 23, 2007, L.L. was injured badly in a car accident. He was transported to the Cooper Hospital Trauma Center. Upon admission to the hospital, L.L. tested positive for cocaine, opiates and benzodiazepines. When he was stabilized, L.L. was cleared for surgery to repair a transverse patellar fracture.

Caseworker Lisa Puhala, who was assigned to the family's case in May 2007, testified that during this same time period, the Division attempted to schedule individual counseling sessions for L.L. The scheduling of these sessions was initially delayed because of a billing dispute between the Division and the assigned psychologist, Dr. Schafer, with whom the Division contracted to conduct the counseling sessions. Once the billing dispute was resolved, the Division could not arrange the sessions, as L.L. was either in the hospital or unavailable. Puhala indicated that L.L. did not answer his phone and did not have an answering machine on which to leave messages. Additionally, she was unable to notify L.L. of the counseling sessions during his visits with the children because he stopped visiting the children after his wife's death in December 2007.

Puhala also testified that after the children were removed from the family home, they were given therapeutic services through their specialized foster placements and through family and individual counseling with Social Worker Cheryl Pride. The children reportedly made improvements but ongoing therapy was recommended.

L.L. was incarcerated in February 2008 on charges that included second-degree aggravated assault with a deadly weapon, criminal restraint and carjacking. He remained incarcerated at the time of trial.

The Division also presented testimony from Dr. Jeffrey, a psychologist who was qualified as an expert witness and who conducted a psychological evaluation of L.L. on April 17, 2008, as well as a bonding evaluation of L.L. and the children on November 16, 2007 for the purposes of litigation. Dr. Jeffrey diagnosed L.L. with a substance abuse disorder, possible depressive disorder, and personality disorder, not otherwise specified, with antisocial, narcissistic and histrionic features. She testified that L.L. showed an egocentric point of view. Specifically, Dr. Jeffrey stated that L.L. is:

highly likely to be self-absorbed, erratic and unstable. And I note that [L.L.] professes a deep love for his children, and - - but he has also displayed an inability to sustain stability, or to display the critical components of parenting capacity, reliable, responsible, rule governed behavior.

He's likely to be impulsive and to display poor judgment. He's unlikely to be dependable and mature. He's not prepared to serve as a role model for his children.

His mental health and substance dependence problems decrease his parenting capacity, specifically his parenting capacity to display empathy, attunement, and to be able to differentiate his needs and feelings from those of his children. He's not prepared to serve as a model for handling stress and anxiety.

He's not prepared to provide consistent, attuned care and appropriate limits for his children. His children cannot depend on him to conduct himself in such a way as to be available to provide nurturing care to them.

Dr. Jeffrey concluded "I could not, in good conscience, as a psychologist, based on the evidence I have, recommend the placement of these children with their dad. I could not do that."

L.L. testified on his own behalf. He detailed his employment history, medical conditions, and his love for his children. He indicated that he planned to use J.L.'s life insurance money to assist him with his legal troubles. He acknowledged that he could not parent while in jail and indicated that his family would help take care of the children during his incarceration. This testimony, however, was contrary to what he told Dr. Gulino during his psychological evaluation. He told Dr. Gulino that "his siblings 'stuck their noses up' at him when he asked them if they would take care of his children so they could avoid having to be placed in foster care." He also told Dr. Gulino that "he believes [his siblings] are 'mad' at him due to his arrest and relapse." Moreover, according to Puhala, L.L.'s brothers did not respond to the Division's attempt to contact them and no other family member expressed an interest in caring for the children.

Following the trial, Judge Telsey reserved decision and, one month later, issued a cogent and well-reasoned forty-six- page written opinion. The decision included an analysis of the four-part test of the "best interest of the child" standard codified at N.J.S.A. 30:4C-15.1(a).

As to the first prong, Judge Telsey stated:

This Court finds by clear and convincing evidence that due to [L.L.]'s mental health diagnosis, his addiction to illegal drugs, and his inability to remedy both problems, he cannot safely parent. . . .

. . . .

The expert testimony referenced above is uncontroverted. . . . [T]his Court is satisfied that Prong I has been met by clear and convincing evidence.

With respect to the second prong, the court found:

Dr. Jeffrey testified that [L.L.] is likely to be self absorbed, erratic, and unstable which affects his ability to parent and which will deny the children a secure attachment. . . . Even if [L.L.] were to actively engage in therapy, which Dr. Jeffrey questioned, it would be a minimum of two years before he was minimally capable to parent the children. . . .

Because of [L.L.]'s current psychological and substance abuse problems he is presently unable to provide a safe and stable home for the children and would need to actively engage in therapy, which he has been unable to successfully do since the removal over two years ago. . . .

As very clearly articulated by the children's therapist Cheryl Pride, the delay of permanent placement will add to the harm of the children as they are unable to address their feelings in depth, so long as they continue to hold onto hope that their family will be reunified.

. . . .

Based upon all of the foregoing, the Court is satisfied by clear and convincing evidence that Prong II has been satisfied, in that [L.L.] is unable to eliminate the present harm facing the children, is unable to provide a safe and stable home and a delay of permanent placement will add to the harm to the children.

Regarding the third prong, the trial court detailed the Division's history with the family and found that there was "clear and convincing evidence that the [D]ivision reasonably sought alternative placement with family members."

Finally, with respect to the fourth prong, the Court found:

If the Court were to deny the application to terminate parental rights, it would be on the basis that it is satisfied that [L.L.] can get out of jail and get himself together. However, this scenario seems remote and perhaps an impossibility based upon the expert testimony presented. To the contrary, if this Court grants termination, the children will then be freed for adoption, which will certainly open up the possibility for other potential adoptive parents and the children will finally be able to therapeutically address their respective issues that Cheryl Pride indicates they have been unable to address until permanency is achieved.

Based upon the foregoing, although this Court finds it will harm the children to terminate parental rights, the Court is satisfied that [t]he State has met the final prong by clear and convincing evidence that termination of parental rights will not do more harm than good.

The court entered the order terminating L.L.'s parental rights to the three children on June 16, 2008. The present appeal followed. On appeal, L.L. raises the following points for our consideration.

[POINT I]

THE DIVISION OF YOUTH AND FAMILY SERVICES FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE EACH PRONG OF N.J.S.A. 30[:]4C-15.1(a) AND THEREFORE L.L.'S PARENTAL RIGHTS TO M.L., B.L., AND N.L. MUST BE REINSTATED.

A. DEFENDANT-APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BECAUSE THE JUDGE WHO PRESIDED AT THE TRIAL WAS NOT IMPARTIAL.

B. THE TRIAL COURT IMPROPERLY ADMITTED TESTIMONY THAT CONTAINED MULTIPLE LEVELS OF HEARSAY.

C. THE CHILDREN'S SAFETY, HEALTH AND DEVELOPMENT [SIC] WAS NOT PROVEN BY CLEAR AND CONVINCING EVIDENCE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

D. THE DIVISION DID NOT MAKE REASONABLE EFFORTS TO PROVIDE L.L. WITH THE SERVICES TO ASSIST HIM IN REMEDYING THE ALLEGED PROBLEMS AND CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILDREN'S PLACEMENT.

E. TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

We have considered the points raised by L.L. in light of the record and the applicable legal principles and find them to be unpersuasive. We are satisfied that the evidence clearly and convincingly establishes that the best interests of B.L., M.L., and N.L., when assessed under the statutory standards set forth in N.J.S.A. 30:4C-15.1(a), warrant termination of L.L.'s parental rights. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). We are equally persuaded that there is substantial credible evidence in the record to support Judge Telsey's ruling terminating parental rights. We add the following comments.

The balance between parental rights and the State's protective interest over the welfare of children is achieved through application of the statutory "best interests of the child" standard, first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), now codified in N.J.S.A. 30:4C-15.1. The statute provides:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" . . . . if the following standards are met:

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

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

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

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

[N.J.S.A. 30:4C-15.1(a).]

The four statutory criteria "are not discrete and separate." K.H.O., supra, 161 N.J. at 348. Rather, "they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid.

Judicial determinations of whether the Division has satisfied the statutory prerequisites to termination of parental rights are "fact sensitive." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005) (citations omitted). For the trial judge, who sits as the fact-finder, this process involves assessing credibility, which means that the trial judge must sift through the evidence presented, evaluate the demeanor of the witnesses under both direct and cross-examination, consider any potential bias or prejudice of the witnesses, and then arrive at a determination of whether DYFS, by clear and convincing evidence, has met the four-part test. See N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 274-76 (2004).

On appeal, the factual findings and conclusions of the trial judge are generally given deference, especially "'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). As a reviewing court, our task is not to disturb the "'factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

When reviewed under this analytical framework, there is no merit to defendant's contentions that the Division failed to prove the statutory factors by clear and convincing evidence. Defendant contends that prior to trial, Judge Telsey signed several orders which indicated that termination of parental rights "was the best solution for this case[,]" and given the decisions and comments made by the judge before the trial, defendant argues that "Judge Telsey had made up his mind before the trial," and L.L. "never had a chance of a fair trial." We disagree.

Here, the record shows that the first permanency order in which the court stated that termination of parental rights was the appropriate plan, was signed by another judge on June 27, 2007. By the time Judge Telsey signed the next permanency order on May 5, 2008, J.L. was deceased, L.L. incarcerated, and no family members had expressed an interest in caring for the children. While incarceration, standing alone, does not warrant termination of a parent's parental rights, In re Adoption of Children by L.A.S., 134 N.J. 127, 135 (1993), it is probative of whether a parent is capable of caring for his or her child. Id. at 136-137.

Further, the permanency order was not a final order, nor was it equivalent to "'termination of parental rights.'" N.J. Div. of Youth & Family Servs. v. S.A., 388 N.J. Super. 324, 335 (Ch. Div. 2005) (citing In re E.M.B., 348 N.J. Super. 31, 48 (App. Div. 2002)). While the permanency order reflects Judge Telsey's acceptance of the Division's adoption plan, the order does not reflect the judge's determination that the Division had satisfied its statutory burden of proof to establish by clear and convincing evidence the requisite statutory prongs for termination of parental rights. N.J.S.A. 30:4C:15.1(a). Moreover, Judge Telsey's pre-trial management of the case and his presiding over the termination proceeding is consistent with the objective of "judicial continuity" for managing Children in Court cases. The Children in Court Case Proceedings Manual, Final Draft June 2000, 1500-2, recommends that "[w]henever possible, the same judge shall be assigned to hear all stages of the Children in Court proceedings." Finally, L.L. points to nothing in the record that evidences Judge Telsey's partiality.

With respect to the admission of testimony containing multiple levels of hearsay, the records were admitted without objection or subject to any limiting purposes. Likewise, to the extent Puhala's testimony emphasized the negative rather than the positive aspects of the Division's involvement with L.L., through cross-examination, L.L. had the full opportunity to cross-examine Puhala and also to produce witnesses on his behalf. See In re Guardianship of Cope, 106 N.J. Super. 336, 344-45 (App. Div. 1969).

To summarize, Judge Telsey's comprehensive opinion outlines the proofs presented, his findings in that regard, and legal conclusions. We discern no basis to disturb these findings.

Affirmed.

A fourth child, J.L., was placed in kinship legal guardianship in February 2008 and is not the subject of this appeal.

(continued)

(continued)

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A-5693-07T4

RECORD IMPOUNDED

June 18, 2009