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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3910-07T4

A-1494-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.Y.,

Defendant-Appellant.

_________________________________

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.Y.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.Y. AND L.Y.,

Minors.

__________________________________________________

 

Submitted February 3, 2010 - Decided

Before Judges Axelrad, Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-58-07.

Yvonne Smith Segars, Public Defender, attorney for appellant S.Y. (Deric Wu, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant C.Y. (Grace Eisenberg, Designated Counsel, on the briefs).

Paula T. Dow, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the briefs).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for the minor children (Roberta A. Howe, Assistant Deputy Public Defender, on the briefs).

PER CURIAM

In this appeal, we chiefly consider whether the evidence adduced at trial was sufficient to support the judgment terminating the parental rights of defendants S.Y. and C.Y. to their two children, J.Y. and L.Y. We also examine the claims of error in the proceedings that followed our recent remand, which was permitted so that the trial court could consider whether the foster parents' subsequent divorce and other alleged changed circumstances warranted a vacation or modification of the judgment. And we consider defendant C.Y.'s claim that she was denied the effective assistance of counsel at the remand hearing. We reject all defendants' arguments and affirm.

I

We need not describe in detail the many facts which the trial court considered. We instead provide a brief summary of the cogent facts in determining that the judge's findings were well-supported by the evidence.

The involvement of plaintiff New Jersey Division of Youth and Family Services (the Division) with this family began five days after the birth of the oldest child, L.Y. The Division then substantiated that, on June 10, 1996, defendant S.Y. had dropped the five-day old L.Y. on his head. The Division provided a home health aide and a homemaker as well as counseling for both defendants. The Division closed its case the following year when defendants moved out of the State.

Defendants' second child, J.Y., was born on February 22, 1999. The record reveals that both children have special needs -- both have been diagnosed with Attention Deficit Hyperactivity Disorder, and L.Y. has been diagnosed with Asperger's Syndrome -- and see a psychiatrist on a monthly basis for medication monitoring and counseling. They also receive speech and occupational therapy.

In March 2000, the Division received a referral alleging that the children would often be dirty, unfed and clad in dirty clothes when arriving at daycare. In investigating, the Division found their home was "filthy" and had a "horrible stench." The Division reopened its file and provided counseling services, as well as a cleaning service.

In March 2003, a school nurse made a referral, which was substantiated, that seven-year old L.Y. had large bruises on his back as a result of being hit with a belt by his father. Later that year, the school nurse again contacted the Division and reported that a witness had seen, on three separate occasions, defendant S.Y. dragging a screaming L.Y. across the school parking lot. On one occasion, S.Y. dragged L.Y. to the ground, yanked him up, and then slapped his head several times. The Division's investigation revealed that the "entire house had a smell of urine" and there was "food trash and other garbage strewn about the entire house." A plastic grocery containing dirty diapers was found hanging on a door knob; most of the rooms had no working lights. Both boys shared a soiled mattress that lacked sheets. J.Y., who was then four years old, was observed wearing a diaper. L.Y. revealed that his father hit him in the face with a belt.

Allegations of physical abuse by S.Y. and allegations of the neglect of both defendants were substantiated. The Division conducted an emergency removal on December 8, 2003, and commenced Title 9 proceedings the next day, seeking a determination that the children had been abused or neglected while in defendants' custody. The judge entered an order granting the Division custody of the children. Due to the family's religious faith, the Division temporarily placed the children with a Hasidic Jewish family in their Lakewood community.

On April 8, 2004, defendants stipulated that the condition of their home placed the children at risk of harm pursuant to N.J.S.A. 9:6-8.12. The court then ordered both parents to comply with a host of services. From 2004 to 2007, various services were provided, including psychological and psychiatric evaluations, ongoing individual counseling, therapeutic and supervised visitation, bonding evaluations, parenting classes and anger management classes. The children were also provided services, including psychological and psychiatric evaluations, counseling, visitation, specialized schooling, summer camps, behavioral assistants, sibling visits (for the time they resided in separate foster homes), and sexual abuse counseling.

The Division filed its first guardianship action on January 12, 2006. Following a trial, the judge ruled that the Division failed to meet the requirements of N.J.S.A. 30:4C-15.1a(3) because it had not provided sufficient visitation. The judge declared that the permanent plan for the children was reunification and ordered therapeutic visitation.

On January 23, 2007, during a psychiatric examination, J.Y. spontaneously disclosed that he had been sexually abused. Both children made other disclosures of sexual abuse. On May 21, 2007, the judge ordered that termination of parental rights followed by adoption was an acceptable permanency plan, and the Division commenced a second guardianship action on June 29, 2007.

The second termination trial took place on three nonconsecutive days in October and November 2007. The Division called as witnesses its caseworker and Dr. Chester Sigafoos, who conducted psychological evaluations of defendants, psycho-sexual evaluations of the children, and bonding evaluations. The Law Guardian called as a witness, D.Z., the children's foster mother. Defendant C.Y. testified on her own behalf and called as a witness, Rabbi Larry Freundlich, who testified about Jewish traditions, to demonstrate that the children's allegations of sexual abuse may have related to some confusion regarding the mikvah. During the trial, defendants objected to the admission of statements attributed to the children by the caseworker, Dr. Sigafoos and the foster mother. The judge heard the testimony but permitted defense counsel to renew their arguments at the end of the case.

The judge rendered an oral decision over the course of two days. On the first day, the judge rejected defendants' objections to the hearsay statements attributed to the children for three reasons. She found the statements: (1) showed a course of conduct and were not offered to prove the truth of the matter; (2) were admissible pursuant to the fresh complaint doctrine, citing State v. Bethune, 232 N.J. Super. 532 (App. Div. 1988), aff'd, 121 N.J. 137 (1989); and (3) were trustworthy because they were offered by mental health professionals in the course of conducting evaluations and because the statements of abuse were revealed not on a single occasion but over a course of time. On the second day, the judge explained in detail why she found that the Division proved all four prongs of N.J.S.A. 30:4C-15.1a, by clear and convincing evidence.

A judgment terminating defendants' parental rights was entered on January 31, 2008.

II

Both defendants appealed, arguing the evidence was insufficient to support the judgment. Specifically, defendant C.Y. asserts that the Division failed to prove all four prongs of the statutory test; defendant S.Y. attacks only the judge's findings on the third prong. We find no merit in their arguments.

Initially, we must recognize that our standard of review of such judgments is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's factual findings "are considered binding on appeal when supported by adequate, substantial, and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), an appellate court may only disturb factual findings when they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice, In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Cesare v. Cesare, 154 N.J. 394, 412 (1998).

In determining whether to terminate parental rights, our courts are required to employ the four-prong test set forth in N.J.S.A. 30:4C-15.1a, which requires that the Division prove by clear and convincing evidence:

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

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

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

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

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

The four-prong test is "extremely fact sensitive" and requires particularized evidence that addresses the specific circumstances in the given case. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The prongs are not separate and discrete but "interrelated and overlapping." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). The inquiry focuses not only on whether a parent is fit, but "also whether he or she can become fit within time to assume the parental role necessary to meet the child's needs." Id. at 87.

The trial judge carefully applied this test to the evidence she found to be clear and convincing. In examining each of these prongs, in light of defendants' arguments, we find no reason to second-guess the judge's findings.

A

The first prong asks whether the parent has harmed or will continue to harm the child if the parental relationship is allowed to persist. K.H.O., supra, 161 N.J. at 348. "Harm" is defined as anything that threatens the child's "health and development resulting from the parental relationship." Ibid. Although a "particularly egregious single harm" may satisfy the standard, the court should focus "on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid.

The judge found that the children were subjected to considerable abuse from S.Y. -- who, as we previously noted, does not challenge the judge's findings on this prong -- and that defendant C.Y. failed to prevent that abuse or protect the children from its continuation. The judge determined that all the evaluations of C.Y. revealed she was in denial regarding the dysfunctional family situation. In addition, Dr. Sigafoos found that C.Y. actively manipulated the children regarding their own mental health evaluations.

The judge also found that the children frequently expressed their frustration at C.Y.'s inability to protect them from S.Y.'s abuse. For example, during his in camera interview with the trial judge, J.Y. expressed sadness that his mother could not take care of him. L.Y. expressed similar sentiments. Dr. Sigafoos testified that C.Y.'s inability to protect her children from S.Y.'s abuse was "disconcerting" because "the mother was present during some of these situations and, as a result, she offered nothing to protect these children." The judge further found from evidence regarding the bonding evaluations and therapeutic visitations that C.Y. lacked the ability to effectively control and discipline the children and, in fact, encouraged the children to regress to younger stages of development.

The judge was entitled to find that this evidence was credible and, if believed, it certainly met the clear and convincing standard imposed by N.J.S.A. 30:4C-15.1a. In examining the judge's findings pursuant to our limited standard of review, we are satisfied that there was ample evidence from which the court could conclude that the first prong was established as to both parents.

B

The second prong of the statutory test requires proof that the parent is "unwilling or unable to eliminate the harm," which has endangered the child's health and development, or proof that the parent has failed to provide a "safe and stable home for the child" and that a delay in permanent placement will further harm the child. N.J.S.A. 30:4C-15.1a(2). In analyzing the evidence offered in support of the second prong, the court must not concentrate so much on the past harm but rather focus on whether "it is reasonably foreseeable that the parent can cease to inflict harm upon the children entrusted to their care." A.W., supra, 103 N.J. at 607; see also In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

In challenging the judge's findings on this prong, defendant C.Y. relies on her own testimony. She claims that she is responsible and, also, emotionally and physically equipped to "deal with" her children. She asserts that she is "self-employed and earns an income and works several hours per week," "has a furnished home to offer the children," "owns a car," and is able to feed and clothe the children. She also acknowledged, however, that she remains married to defendant S.Y., although she also asserted that she would leave him if he presented any threat to the children. The judge, however, was entitled to find that these assertions only revealed C.Y.'s superficial recognition of the problems. As the judge found, "everybody has made a very serious effort to try to work with these parents and to no avail."

The trial judge found C.Y.'s testimony riddled with denials and minimizations and found more persuasive the results of the many psychological evaluations, which revealed that C.Y. is unwilling to accept responsibility for the harm caused to her children. Ultimately, the judge relied on Dr. Sigafoos, who opined that he did not think defendants -- either together or separately -- were fit to parent the children or would be, if ever, in the foreseeable future.

The judge's findings are fully supported by the record.

C

The third prong imposes upon the Division the obligation to make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home"; it requires that the court "consider[] alternatives to termination." N.J.S.A. 30:4C-15.1a(3). "Reasonable efforts" is defined as including attempts to "assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure" through the following means:

(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, develop-ment and health; and

(4) facilitating appropriate visitation.

[N.J.S.A. 30:4C-15.1c.]

The individual facts of each case must be considered in determining what constitutes "reasonable" efforts. N.J. Div. of Youth and Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div. 2007); N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 428, 437 (App. Div. 2001). The ultimate success or failure of the efforts is not dispositive of whether the Division has met its burden on this prong. D.M.H., supra, 161 N.J. at 393; F.H., supra, 389 N.J. Super. at 620.

Both defendants argue that the Division failed to satisfy its statutory obligation because it did not place both of them on medication for their ADHD. In addition, both parents argue that the visitation schedule was erratic as further evidence of the Division's purported failure to prove the third prong. C.Y. asserts that visitation was confounded by the foster families and argues "it was ultimately the responsibility of the Division to facilitate visitation and other forms of contact" with the children.

The judge rejected these contentions and relied on the caseworker's testimony about the extensive services provided to defendants, noting that the Division tried to accommodate the parents by providing visitation in locations close to them in Ocean County even though the children were being fostered in Bergen County. Notwithstanding these efforts, defendants often arrived late and at times compromised the visitations through inappropriate behavior. Four therapists retained to supervise visitation terminated their involvement because of defendants' conduct.

The judge's findings are well-supported by the record, which is replete with evidence of the Division's prodigious efforts in this case.

D

The fourth and last prong requires proof that termination of parental rights will do no more harm than good. N.J.S.A. 30:4C-15.1a(4). In examining the evidence relating to this prong, a trial judge "must inquire into the child's relationship both with her biological parents and her foster parents," and determine "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355.

C.Y. attempts to persuade that the Division failed to satisfy this prong by focusing on all the instances in the record where her children expressed their love for her, including her own testimony that her children told her they wanted to be reunited. She also refers to the foster mother's testimony regarding her husband's wavering commitment as a basis for arguing that only the foster mother was committed to the children.

The evidence, upon which the trial judge relied, revealed that the relationship between defendants and the children was harmful. Dr. Sigafoos testified that defendant S.Y. posed a risk to the children and recommended terminating all contact with him so that the children's wounds might heal. He described defendant C.Y.'s dependency as "very problematic" because "you need to be able to assert independent judgment in order to ensure the safety of a child irrespective of who the person is that's doing something to the child," and he concluded that C.Y. "doesn't do that."

On the other hand, the testimony revealed that the foster family provided a "very structured" and "secure" home. The Division's caseworker testified that the foster family went "above and beyond" to care for the children's needs, and that the children are anxious for permanency. Dr. Sigafoos also testified that the foster parents demonstrated a healthy interaction with the children, and provided a safe and stable home environment.

The trial judge's finding that termination would not do more harm than good was fully supported by the evidence she found credible.

For these reasons, we conclude there was clear and convincing evidence adduced at the guardianship trial that fully supported the trial judge's decision to terminate defendants' parental rights.

This determination, however, does not end our examination of the issues on appeal.

III

During the pendency of the appeal, defendants moved for a remand in light of the fact that the foster parents had divorced after the entry of judgment. They claimed that this event and its consequences -- including the children's move with the foster mother to a new home, and the impact on the children's religious education -- constituted a material change in circumstances that warranted the vacating of the judgment under review. By order entered on July 1, 2009, we granted a temporary remand so that the trial court could "consider the changes, which have occurred in the foster home" and their impact on the judgment. We recognized that the matter was complicated by the fact that, due to retirement, the trial judge was no longer available to address these concerns. We also retained jurisdiction.

Judge Michael A. Guadagno presided over the remand proceedings. At the evidentiary hearing, the Division called as witnesses the foster mother and Dr. Jeffrey Lichtman, an expert in psychology, education and religion. The judge also conducted in camera interviews on the record of both children. C.Y. did not testify and presented no witnesses. S.Y. appeared for a preliminary conference, but he did not attend the hearing and his counsel called no witnesses; Judge Guadagno observed that S.Y.'s counsel explained that S.Y. "felt that he is the 'problem,' that he and [C.Y.] had separated, and 'he wants her to put her best foot forward.'" In a thorough written decision, Judge Guadagno denied defendants' application to vacate the judgment under review.

Defendants were given the opportunity to provide this court with additional submissions. C.Y. filed a supplemental brief, which raised the following issues concerning the remand proceedings and Judge Guadagno's denial of relief:

I. THE TAPE(S) OF THE IN CAMERA INTERVIEWS OF THE SUBJECT CHILDREN SHOULD HAVE BEEN SUPPRESSED.

II. [C.Y.] RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL ON REMAND.

III. THE EVIDENCE PRODUCED AT THE REMAND WAS SUFFICIENT TO REVERSE AND RE-OPEN THE JUDGMENT AS TO TERMINATION OF PARENTAL RIGHTS.

We find insufficient merit in Points I and II to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We note only that Point I rests on C.Y.'s contention that the judge should not have considered the content of the children's in camera interviews because, contrary to N.J.S.A. 2A:84A-32.4, she was not permitted to cross-examine. That argument has no merit, particularly because the cited statute applies only to criminal proceedings.

We also find no merit in Point III. Certainly, as the record reflects, there were material changed circumstances. Following the entry of the judgment terminating parental rights, the foster parents divorced, both civilly and religiously, and the foster mother moved with the children to another home, which she co-owns with her sister. Judge Guadagno examined the record in determining whether these facts would have caused the trial judge to reach a different conclusion. He held that in light of the foster mother's earlier testimony -- that her husband was not committed to adopting the children -- the trial judge "was aware at the time of trial that [the foster father] was not committed to adopting the boys and that if the foster parents separated, [the foster mother] was willing to adopt the boys as a single parent." The trial judge found, despite the potential of a separation of the foster parents, that termination still would not do more harm than good.

The evidence fully supports Judge Guadagno's conclusion that, although changed, the circumstances did not warrant a vacating of the judgment under review. After thoroughly canvassing the evidence, Judge Guadagno found among other things that, following her separation and divorce from her husband, the foster mother: has provided a suitable and stable home; earns a sufficient income and otherwise possesses the financial means to provide for the children's education and religious needs; and remains deeply dedicated to adopting the children and raising them as a single parent. He also found the children "are unequivocal and unwavering in their desire to be adopted" by the foster mother.

As a result, with regard to Point III, we affirm the denial of the application to vacate the judgment under review substantially for the reasons set forth in Judge Guadagno's thoughtful and well-reasoned opinion.

 
Affirmed.

The children had been removed from the temporary foster home in Lakewood and placed with a Jewish family in Bergen County.

Rabbi Freundlich explained that a mikvah is a pool of water in which a person submerges to be elevated spiritually. He testified that it is a "standard procedure" for a father to bring sons, even as young as two years old, to the mikvah.

Any argument raised by defendants with regard to the judgment under review that has not been specifically addressed has insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

The foster mother's sister does not reside in the home. As the judge found, the foster mother's sister resides out-of-state and is only an investor in the property.

(continued)

(continued)

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A-3910-07T4

RECORD IMPOUNDED

March 3, 2010