DYFS v. H.L.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0059-10T4

A-0060-10T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

H.L.D.,

Defendant-Appellant,

and

R.H.,

Defendant-Appellant.

________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF R.J.H.,

A Minor.

_________________________________

May 12, 2011

Submitted: May 4, 2011 - Decided:

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-98-10.

Yvonne Smith Segars, Public Defender, attorney for appellant H.L.D. (Dianne Glenn, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant R.H. (Brian W. Donnelly, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent DYFS (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

H.L.D., the mother, and R.H., the father, appeal from a July 15, 2010 order of the Family Part terminating their parental rights to their then seventeen-month-old son, R.J.H., and awarding guardianship to the Division of Youth and Family Services (DYFS) for the purposes of effectuating the child's adoption. On appeal, both parents argue DYFS did not prove by clear and convincing evidence the third statutory prong required to establish that their son's best interests require severance of their parental ties, and the father also challenges the fourth statutory prong. We note the Law Guardian supports termination of both parents' parental rights to R.J.H.

After considering the record and briefs in light of the applicable law, we are satisfied the trial judge's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff d in part, modified in part and remanded, 179 N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006). We affirm.

I.

We need not describe in detail the many facts the trial court considered in its determination. We instead provide a brief summary of the cogent facts we considered in concluding the judge's findings were well-supported by the record.

The following testimony and evidence were presented during the two-day trial conducted on July 14 and 15, 2010. DYFS presented the factual testimony of Tara Sinclair, a caseworker, and the expert testimony of Frank J. Schwoeri, Ph.D., who conducted a psychological evaluation of both parents and bonding evaluations of R.J.H. with H.L.D. and with his foster parents. Neither parent appeared at trial, nor did they present any witnesses on their behalf.

R.J.H., born on February 23, 2009, is H.L.D.'s tenth child and R.H.'s third child with her. Their parental rights were terminated as to their two other children in common. H.L.D.'s parental rights to two of her other children were also terminated and the others either live with relatives or have reached the age of majority.

DYFS began involvement with H.L.D. in 1991 because of a substantiated physical abuse of her first-born child. Fifteen referrals ensued regarding the family, five of which were substantiated. In July 2007, DYFS substantiated physical abuse by R.H. for hitting two of the children with a belt. In December 2007, H.L.D. reported that R.H. had beat another of their children with a belt and had thrown the child to the floor, causing facial injury. H.L.D. claimed she was afraid of R.H. because he beat her and the children and threatened them with a gun. H.L.D. was informed of the procedure for filing a restraining order and the caseworker developed a safety protection plan for her. R.H. was also informed he was not to return to H.L.D.'s home. Nevertheless, when the caseworker returned to the home a week later, she learned that R.H. had not left the home. The four children were removed that evening.

DYFS arranged for H.L.D. to engage in therapy services, domestic violence counseling, and parenting classes. H.L.D. was partially compliant but acknowledged she continued to see R.H. and could not understand why she could not separate from him. She eventually obtained a restraining order against R.H. on August 13, 2008, alleging he had punched her in the face, threatened to kill her and a DYFS worker, and harassed her. When R.J.H. was born in February 2009, a hospital social worker reported that H.L.D. had told the staff the man who came to visit was R.H., which both she and R.H. later denied. R.J.H. was placed with his current foster parents when he was approximately three weeks old.

H.L.D. was again referred to a variety of programs. She missed almost half of the parenting sessions and made no progress. The instructor noted that H.L.D. was not focused on regaining custody but on her abusive relationship with R.H. and was unable to recognize the negative impact of that relationship on her children. On December 1, 2009, the court found DYFS had made reasonable efforts to provide services but neither parent was compliant. Both parents subsequently refused to attend psychological and psychiatric counseling, and anger management and domestic violence classes.

Ultimately, Dr. Schwoeri performed court-ordered psychological evaluations of H.L.D. and R.H. on March 22, 2010. He noted that while H.L.D. was completing the psychological questionnaires, she was talking on her cell phone with R.H. H.L.D. denied having a relationship with R.H., claiming they only talked on the phone, and claimed she kept in touch with him because of the children even though none of their children had been in their care for quite some time. The psychologist noted that H.L.D.'s "difficulty in coping with [R.H.'s] violent behavior toward her was evident." Furthermore, she remained "passive-dependent and vulnerable to exploitation[.]"

R.H.'s evaluation revealed he was abusive and violent. In 2001, he had pled guilty to third-degree terroristic threats for threatening to kill his paramour, and was sentenced to two years probation. In 2003, he pled guilty to violating his probation and was sentenced to four years imprisonment. He was released in June 2004, and two months later, the paramour filed a restraining order against him. In October 2004, R.H. was arrested and incarcerated for violating parole. He was released in May 2005, and in February 2006, H.L.D. filed a restraining order against him. At some point, he was again incarcerated and released in August 2006. Shortly thereafter, another paramour obtained a restraining order against him. Dr. Schwoeri noted that R.H.'s legal history was seventy-five pages long, with a number of the charges involving assault and physical threats. R.H. provided vague and avoidant answers to the psychologist's questions and, on the parenting assessment, demonstrated a low level of empathy and a belief in corporal punishment of children. Dr. Schwoeri concluded that the evaluation, in conjunction with R.H.'s violent history and "notable lack of empathy," indicated "that children placed in his care would be at high risk of physical abuse[.]"

Both parents were offered weekly visitation with their son. Although DYFS provided H.L.D. with bus tickets, she attended "very sporadically." Due to non-attendance, R.H.'s visits were suspended in April 2009, and he made no attempt thereafter to reinstate visitation.

Dr. Schwoeri also testified about his bonding evaluation of H.L.D. and her son. He reported that R.J.H. "showed no sign of familiarity" to his mother but, rather, showed signs of "discomfort and aversion of physical closeness to her," leading to the conclusion the child had no "specific attachment" to his mother. By contrast, during the bonding evaluation of R.J.H. and his foster parents, R.J.H. showed a "specific and secure attachment" to his foster parents, and he was "animated, interactive, responsive and lively" during the evaluation.

The parents continued their relationship despite the restraining order. H.L.D. did not appear at trial, informing the caseworker she was not feeling well, but eventually admitted she was pregnant with R.H.'s child.1 The caseworker saw R.H. in the courthouse prior to the commencement of trial and he said he would only stay for forty-five minutes. He did not remain for the trial.

Based on the record and after observing the lay and expert witnesses, examining the exhibits entered into evidence, and hearing arguments of counsel, Judge John Fratto concluded the best interests of R.J.H. required severance of both parents' parental ties. In a detailed oral decision of July 15, 2010, the judge recited the factual and procedural history of the case, made findings of fact and credibility assessments, noted the applicable law, and found DYFS had satisfied by clear and convincing evidence the four-prong test for termination of parental rights as set forth in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-10 (1986), and codified in N.J.S.A. 30:4C-15.1(a). The determination was memorialized in a judgment of guardianship. These appeals ensued.

II.

We begin by noting some basic principles. The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We also have a limited scope of review of the Family Part's factual findings. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.261, 279 (2007). When reviewing the factual findings and conclusions of a trial court, we are obligated to accord deference to the trial judge's credibility determinations and the judge's "feel of the case" based on the opportunity of the judge to see and hear the witnesses. A.R.G., supra, 361 N.J. Super.at 78 (citing Cesare v. Cesare, 154 N.J.394, 411-12 (1998); Pascale v. Pascale, 113 N.J.20, 33 (1988)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super.235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J.365, 382 (1999)). We rely upon the trial court's acceptance of the credibility of the expert testimony and the court's fact-findings based thereon, as it is in a better position to evaluate the witness' credibility, qualifications, and the weight to be accorded to the expert's testimony. Ibid.; see alsoIn re Guardianship of J.C., 129 N.J.1, 22 (1992).

We are not to disturb the factual findings and legal conclusions of the trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.474, 484 (1974) (citation and quotation marks omitted). Additionally, because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding and the conclusions which flow logically from those findings of fact. Cesare, supra, 154 N.J.at 412-13; M.M., supra, 189 N.J.at 279. Reversal is required only in those circumstances in which the trial court's findings were "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J.at 279 (citation and quotation marks omitted). Applying this standard, we discern ample evidence in the record supporting the judge's conclusion that R.J.H.'s best interests required termination of both parents' parental rights.

The applicable principles are well settled. "Parents have a constitutionally protected, fundamental liberty interest in raising their biological children." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super.376, 382 (App. Div. l998) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982)), vacated on other grounds, 163 N.J.158 (2000). "The Federal and State Constitutions protect the inviolability of the family unit." W.P. & M.P., supra, 308 N.J. Super.at 382 (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972)). However, government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State, as parenspatriae, may sever the parent-child relationship to protect the child from serious physical and emotional injury. W.P. & M.P., supra, 308 N.J. Super.at 382.

When the child's biological parent resists termination of parental rights, it is the court's function to decide whether the parent can raise the child without causing harm. J.C., supra, 129 N.J.at 10. The cornerstone of our inquiry is not whether the parent is fit, but whether the parent can become fit to assume the parental role in time to meet the child's needs. Ibid. (citing A.W., supra, 103 N.J.at 607). "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." J.C., supra, 129 N.J.at 10. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." W.P. & M.P., supra, 308 N.J. Super.at 383 (alteration in original) (quoting J.C., supra, 129 N.J.at 10).

The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super.at 383. The State Constitution and N.J.S.A.30:4C-15(c) and 15.1(a) require satisfaction of the "best interests of the child" test by clear and convincing evidence before termination of parental rights can occur. SeeA.W., supra, 103 N.J.at 612; In re Guardianship of Jordan, 336 N.J. Super. 270, 274 (App. Div. 2001). Specifically, the four-prong test set forth in N.J.S.A.30:4C-15.1(a) requires DYFS to prove:

(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 [formerly referred to as "foster"] parents would cause serious and enduring emotional or psychological harm to the child;

(3) The [D]ivision 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.

These criteria are neither discrete nor separate. In re Guardianship of K.H.O., 161 N.J.337, 348 (1999). They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. Ibid. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J.127, 139 (1993)).

III.

Judge Fratto found the caseworker and psychologist presented by DYFS "to be extremely credible witnesses." He detailed the myriad of services offered to each parent and their overall non-compliance. The judge rejected R.H.'s argument that DYFS was obligated to conduct a bonding evaluation of him and his son, finding there was nothing to evaluate because there was no contact between them at all and no relationship whatsoever other than the fact that R.H. was the biological father.

The judge found the first statutory prong was satisfied as both parents had a history of abuse towards their children and their domestic violence created a harmful environment for R.J.H. The judge also found satisfaction of the second prong - the harm was likely to continue as a direct result of the parents' ongoing abusive relationship and H.L.D.'s unwillingness or inability to recognize and eliminate the unhealthy environment that the relationship created for their son. Neither parent challenges the judge's findings with respect to these prongs.

The third prong requires DYFS to make "reasonable efforts" to assist the parents in correcting or eliminating the circumstances that caused the harm and to consider alternatives to termination. N.J.S.A. 30:4C-15.1(a)(3). The judge found DYFS had shown by clear and convincing evidence that DYFS had made reasonable efforts to provide a multitude of services aimed at reunification both before and after R.J.H.'s birth, which the parents refused to attend or participated in sporadically. Moreover, DYFS investigated relatives, without success, as an alternative to termination of parental rights.

There is no merit whatsoever to the parents' challenge to this prong. "Reasonable efforts" are defined in N.J.S.A. 30:4C-15.1(c) as including, but not limited to: 1) consulting and cooperating with the parent in developing a plan for appropriate services; 2) providing services to the family that had been agreed upon 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. Evaluation of efforts undertaken by DYFS to reunite a particular family must be done on an individualized basis "with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort." D.M.H., supra, 161 N.J. at 390. DYFS' efforts are not measured by the success of the services. Id. at 393.

Here, the evidence is overwhelming that DYFS provided a myriad of services to both parents to no avail. H.L.D. chose not to participate in or to sporadically participate in psychological and psychiatric counseling, parenting classes, domestic violence counseling, and various support services such as Robin's Nest offered both before and after R.J.H.'s birth. Furthermore, H.L.D. failed to make any progress as she clearly chose R.H. over her children. Additionally, H.L.D. was provided with weekly supervised visitation and bus passes, but she rarely availed herself of the opportunity to foster a relationship with her son.

H.L.D. contends DYFS failed to provide her with services that would allow her to obtain "the necessary skills to overcome being susceptible to domestic violence." The record clearly belies this contention as DYFS not only offered her a variety of domestic violence counseling but helped H.L.D. develop a safety protection plan, assisted in changing the locks at her apartment to keep R.H. out, and advised H.L.D. to stay away from R.H., how to file a restraining order, and to call the police if she needed help. In response, H.L.D. refused services, continued her relationship with R.H., and lied to the caseworker about seeing R.H. At some point, H.L.D. has to take some responsibility for her actions in choosing R.H. over reunification with her son.

The facts are similar regarding R.H. He was uncooperative with DYFS and refused to attend psychological and psychiatric counseling, anger management programs, and participate in other services that would assist him in overcoming his personality and parenting deficits. Most telling of his disinterest in reunification, R.H. never attended supervised visitation with his son that had been scheduled by DYFS.

R.H.'s challenge to the decision by DYFS not to order a bonding evaluation is also unavailing. Generally, "the fact that the child has a strong relationship with the foster parents is not by itself enough to terminate parental rights." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 439 (App. Div. 2009) (citing J.C., supra, 129 N.J. at 18-19). The child's relationship with the foster parents "'must be viewed not in isolation but in a broader context that includes . . . the quality of the child's relationship with his or her natural parents.'" Ibid. (alteration in original) (quoting J.C., supra, 129 N.J. at 18). As a result, there are "very few scenarios in which comparative evaluations would not be required." Id. at 440.

This is such a situation. As a result of the virtually non-existent time R.J.H. spent with R.H., a bonding evaluation would clearly demonstrate that no bond existed between the two and would thus be futile. Accordingly, Judge Fratto did not err in concluding the only requisite bonding evaluations were those between R.J.H. and his mother and his foster parents.

Lastly, the statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). There is ample basis in the record for the judge's finding that the evidence strongly pointed towards termination rather than reunification.

Judge Fratto found both parents were abusive and neglectful, which they apparently do not dispute. He further found it was important for R.J.H. not to remain in limbo. It is clear R.H. has no relationship with the child as he has not seen him since his birth, almost eighteen months prior to trial. Though H.L.D. has exercised some visitation, she is essentially a stranger to her son. In contrast, DYFS presented Dr. Schwoeri's uncontradicted testimony that R.J.H. has an extremely strong bond with his foster parents, who are the only parents he has ever known, and separating him from them would be "catastrophic" emotionally for R.J.H. This alone would be sufficient to satisfy the fourth prong. See K.H.O., supra, 161 N.J. at 363 (holding that demonstration of a strong bond with the foster parents compared to a weaker bond with the biological parents is sufficient to satisfy the fourth prong). In addition, however, the expert testimony also establishes the young boy would be put at risk if reunited with either parent based on H.L.D.'s refusal to separate herself from R.H. and R.H.'s personality deficits, parental attitudes, and history of child abuse and domestic violence.

We are convinced the record supports the trial judge's finding that neither parent is able to provide a safe, stable and permanent home that their son desperately needs at this point in his life. As we concluded in In re Guardianship of A.R.G., 318 N.J. Super. 323, 330 (App. Div.), certif. denied, 162 N.J. 127 (1999), where there is substantial credible evidence in the record to support termination of parental rights, there is no reason to delay permanent resolution. A child cannot afford to wait until such time as his parents might possibly be able to provide a safe, secure and nurturing environment for him. Judge Fratto properly concluded that termination of parental rights will not do more harm than good to R.J.H. as it will free him for adoption by his foster parents who have served as his psychological parents during his entire life and who can provide permanency and stability.

1 The child was born three months later and was placed under the care and custody of DYFS pursuant to an FN proceeding.