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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-6199-11T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

M.A. and J.B.,

Defendants-Appellants.

________________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF E.B.A., C.G.B., and J.R.B.A.,

Minors.

November 19, 2013

 

Submitted October 1, 2013 Decided

 

Before Judges Reisner and Alvarez.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-19-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant M.A. (William J. Sweeney, Designated Counsel, on the briefs).

 

Joseph E. Krakora, Public Defender, attorney for appellant J.B. (Jason A. Frank, Designated Counsel, on the briefs).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christina G. Ramirez, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

Defendants M.A. and J.B., who for the sake of anonymity will be referred to as Mary and Richard, appeal the termination of their parental rights. Mary and Richard have three children, whom we will refer to as Jane, Tom, and Jim, born in 2003, 2007, and 2009 respectively. For the reasons stated in Judge Kathryn A. Brock's comprehensive and cogent June 26, 2012 104-page opinion, we affirm with only the following comments.

The trial, conducted over eleven days, ended on June 20, 2012. While it was ongoing, defendants were incarcerated pending the disposition of charges filed against them relative to their conduct towards the children. Mary was charged with child endangerment and Richard with aggravated sexual assault.

Although not fully detailed in the record, it appears that in February 2013, Richard, and then in May 2013, Mary, entered guilty pleas to lesser charges of disorderly persons simple assault. After disposition of their matters, they were turned over to the custody of the Immigration and Naturalization Services (INS) to await deportation, as both are undocumented Guatemalan citizens. At some unspecified time thereafter, both were released from custody.

The information regarding their release, and the fact the resource family with whom the children resided during the termination hearing no longer wished to adopt them, was provided post-judgment pursuant to an order allowing the record to be supplemented. Jane was born in Guatemala, and brought here by her parents; the boys were born in this country.

In order to understand our brief discussion, some background is necessary. In July 2009, Jane's summer school teacher made a referral to plaintiff New Jersey Division of Youth and Family Services (Division). As a result, the Division initiated Title 9 litigation and effectuated a Dodd removal because Jane's face, limbs, and chest had multiple bruises and lacerations in various stages of healing, and the child reported that her mother struck her every day. See N.J.S.A. 9:6-8.29.

Jane and Tom later disclosed that their mother would punish them by locking them in a dark bathroom for hours. The children's first resource family reported that both children had an aversion to being in the bathroom with the door locked.

On September 9, 2009, Mary stipulated under oath that she had hit Jane with both an open and closed hand, grabbed her hair and pulled very hard. She later denied having engaged in such conduct, explaining that she made the statements solely on her attorney's advice. Richard, in turn, admitted seeing Mary "pop" Jane on the mouth, but denied knowing that she had struck her with such force that she inflicted bruises.

In November 2009, Jane disclosed that her father had showed her pornography both on the family television as well as his cell phone, and that he would put his hands under her clothing and touch her vaginal area. She reported that he touched her inappropriately some ten times, and that she asked him to stop because it hurt. Jane said that when she would tell her mother, Mary would beat her and tell her to stop lying.

During a videotaped interview with a county detective conducted in 2011, although Jane said her mother only locked her brother in the bathroom, and not her, she revealed for the first time that her mother made her kneel on popcorn kernels, leaving little marks she described as being like raindrops on her knees; put chili peppers in her mouth that made her throw up; and when she had not known how to wash clothes, put soap in her mouth, which hurt her mouth. The children also claimed their parents punished them by tightening a cord around their hands.

Gladibel Medina, M.D., who initially examined Jane after the Dodd removal to address the physical abuse, conducted a second examination of the child after the sexual molestation was reported. Jane told the doctor that after her father would touch her, her vagina would hurt, and she could not go to the bathroom because it would burn when she urinated. Medina explained at trial that the burning sensation was consistent with urine flowing over a child's vagina after it had been rubbed. At age six, Jane's sexual organs would be sensitive to touch because of their physical immaturity.

While in foster placement, Jane's behavior has included touching herself inappropriately, and grabbing and hurting Tom's genitals. When asked why she did this to her brother, she said it was to see if it would hurt him the way it did her. At various times Jane has changed the number of occasions that she claims her father touched her, but has never recanted. Jane's behavioral difficulties, including stealing and lying, have improved over time with individual therapy.

Both parents denied that Richard molested Jane, that Jane reported this to her mother, or that Richard ever showed pornography to the child. Richard claims he had the cable connection which would allow him access to such material for only one month; Mary denied they ever had cable at all. She also insisted that Richard would not have had the opportunity to molest Jane as he was never alone with the children.

During the trial, the Division presented experts who collectively opined that the parents were not able to appropriately parent their children. This was based in large part on the father's sexual behavior towards his daughter, which also posed a risk to his sons, and the mother's refusal to give any credence to her daughter's claims. The children were also at risk because of the mother's physical assaults on Jane and inappropriate discipline towards all the children. Additionally, neither parent was able to protect the children from the other.

Mark Singer, Ph.D., conducted bonding evaluations of the family and testified that termination of parental rights was necessary to avail the children, who had been through so much trauma, an opportunity for safety and permanency. In his view, the boys would not experience significant and enduring harm if their relationship with their natural parents was severed given the weak nature of their attachment.2 Singer also noted that it was extremely important for these children to preserve the sibling bond.

Singer conducted a second bonding evaluation with the children and Richard's aunt, E.G., whom the parties proposed as an alternate placement. Singer ultimately concluded that she would not be an appropriate placement. Not only was the attachment between her and the children weak, as she was perceived more as a playmate than a parental figure, but she also had a limited understanding or acceptance of the danger the parents posed to the children. In fact, as to Jane's allegations regarding sexual victimization, the Division's adoption case worker quoted E.G. as saying that Jane needed to "leave the past in the past" and move on.

By way of points on appeal, Mary asserts the following:

POINT I

THE ELEMENTS OF N.J.S.A. 30:4C-15.1 WERE NOT PROVEN BY CLEAR AND CONVINCING EVIDENCE.

 

(A)

[MARY]'S SHORTCOMINGS DID NOT RESULT IN ANY HARM TO THE CHILD.

 

(B)

THE EVIDENCE WAS INSUFFICIENT TO SHOW A LACK OF ABILITY AND WILLINGNESS ON THE PART OF [MARY] TO RESUME PARENTING HER CHILD.

 

(C)

THE LEGAL CONCLUSION THAT THE DIVISION MADE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO [MARY] WAS ERRONEOUS.

 

(D)

TERMINATION OF PARENTAL RIGHTS WILL CAUSE MORE HARM THAN GOOD.

 

By way of points on appeal, Richard asserts the following:

 

POINT I

THE TRIAL JUDGE ERRED IN HOLDING THAT DYFS SATISFIED PRONG TWO OF THE N.J.S.A. 30:4C-15.1a TEST IN REGARD TO [RICHARD].

 

(A)

BY NOT HAVING AN EXPERT CONDUCT A PSYCHOLOGICAL EVALUATION OF [TOM] AND [JIM] THE TRIAL COURT COULD NOT ESTABLISH, WITH THE AID OF EXPERT OPINION, THE NEED OF [TOM] AND [JIM] FOR PERMANENCY AND STABILITY AND WHETHER THE CONTINUATION OF THE PARENTAL RELATIONSHIP WILL UNDERMINE THAT NEED.

 

POINT II

THE TRIAL JUDGE ERRED IN HOLDING THAT DYFS SATISFIED PRONG THREE OF N.J.S.A. 30:4C-15.1a TEST IN REGARD TO [RICHARD].

 

(A)

DYFS HAS NOT MADE REASONABLE EFFORTS TO PROVIDE SERVICES FOR THE DEFENDANT-APPELLANT BY ONLY ALLOWING VISITATION DURING HIS INCARCERATION.

 

(B)

THE COURT ERRED BY ISSUING AN ORDER STATING THAT [RICHARD] CANNOT BE PROVIDED SERVICES BEYOND VISITATION UNTIL HE IS RELEASED FROM JAIL; AND THE VISITATION THAT OCCURRED WAS INADEQUATE VISITATION.

 

(C)

THE TRIAL COURT DID NOT PROPERLY CONSIDER [RICHARD]'S AUNT AS A PROPER PLACEMENT FOR THE CHILDREN.

 

POINT III

DYFS SHOULD NOT HAVE PREVAILED ON PRONG FOUR OF THE N.J.S.A. 30:4C-15.1a TEST. [JANE]'S CONTINUED SEXUALLY ASSAULTIVE AND PHYSICALLY ABUSIVE TOUCHING OF HER YOUNGER BROTHERS AT THE FOSTER PARENT'S HOME HAS BEEN IGNORED BY DYFS; AND [TOM]'S AFFECTION TOWARDS [RICHARD] DEMONSTRATES A HARM THAT WOULD RESULT FROM [TOM] NO LONGER BEING ABLE TO MAINTAIN A RELATIONSHIP WITH [RICHARD], TERMINATION WILL CERTAINLY DO MORE HARM THAN GOOD.

 

Parents have a constitutionally protected right to the care, custody and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' 'far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (internal citations omitted). "[T]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.

The constitutional right to the parental relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, the parent's interest must yield to the State's obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The legislatively enacted test balances these interests. N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and convincing evidence the following:

(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 . . .;

 

(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.

See also A.W., supra, 103 N.J. at 604-11.

These four factors "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. "The considerations involved in determining parental unfitness are 'extremely fact sensitive' and require particularized evidence that addresses the specific circumstances of the individual case." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting In re Adoption by L.A.S., 134 N.J. 127, 139 (1993)), certif. denied, 190 N.J. 257 (2007).

Judge Brock decided to terminate Mary and Richard's parental rights after a reasoned best interests analysis, concluding that the Division had met the statutory standard by clear and convincing evidence. As to prong one, Judge Brock found there could be no doubt that the children's "safety, health or development" had been endangered by the parental relationship and would continue to be endangered if parental rights were not terminated. Jane's statements regarding her father's molestation were corroborated by her description of pain on urination, her knowledge of sexually explicit acts inconsistent with her age, and her sexual acting-out and other problematic behaviors. These circumstances corroborated the allegations of abuse by clear and convincing evidence as required by N.J.S.A. 9:6-8.46(a)(4). See also N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 435-36 (App. Div. 2002).

Judge Brock also found that Mary's failure to even acknowledge the truth of Jane's statements, and her physical punishment of Jane when the child informed her of the abuse, meant that she too had endangered Jane's health and development. The medical testimony established that the bruises on Jane's body and her missing clumps of hair were proof of inflicted injuries and not, as Mary claimed, the result of clumsiness, falls, or bullying behavior by classmates.

Richard's denial of any knowledge of these circumstances, saying that he had merely seen Mary "pop" Jane on the mouth, was quite far from satisfactory. Since Jane was only six at the time, and the "pop" resulted in a visibly swollen and cut lip, Richard's failure to address Mary's conduct itself posed an ongoing threat to the children's health and development. This concern was separate and apart from concerns about his own behavior towards the children.

The second prong is intricately related to the first, as "evidence that supports one informs and may support the other." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). These parents individually have inflicted grave harm upon their children, and are unable to protect them from the other. After the removal, as time wore on, Mary actually "distanced herself" from Jane. By Singer's interview in February 2011, Mary did not even refer to Jane by name, calling her "the girl."

Judge Brock also noted that Richard sent a drawing he made for Jane through Tom, despite having been prohibited from having any contact with her. The communication, which coincidentally was timed with the trial listing on his pending criminal charges, resulted in Jane reducing the number of times she alleged her father molested her.

Furthermore, as the experts said, it was crucial that the children enjoy some stability, particularly for Jane who suffers from anxiety. The parents have failed to provide the children with a safe and stable home. Their state of denial about their conduct requires "a long period of services," assuming they would even accept such services, before any reunification would be possible. Therefore, Judge Brock correctly concluded that the second prong had been met by clear and convincing evidence.

As to the third prong, prior to their incarceration, the Division referred Richard and Mary to parenting classes and psychological counseling. Psychological evaluations were conducted of both parents; however, Richard and Mary refused additional psychological evaluations once they were incarcerated. The Division arranged for visitation between the boys and their parents. While the Division arranged for bonding evaluations with the boys, it simply could not arrange other services for the parents while they were in custody because of the limits inherent in their status. We are satisfied that nothing more could have been done. Hence we agree with Judge Brock's determination that the Division made reasonable efforts to provide services as required by law.

Furthermore, as Judge Brock noted, the Division explored and initially supported E.G.'s attempt to become the children's placement. The Division arranged for visitation and a bonding evaluation, but the latter revealed only a weak bond between the aunt and the children. E.G. did not see the parents as a threat to the children's well-being. For example, the Division's adoption case worker reported that E.G. thought that Jane should leave "the past in the past and move on." Only after assessing the potential placement, and finding it unsatisfactory, did the Division abandon its efforts.

The fourth and final prong of the statutory test is that termination of parental rights will not do more harm than good. By way of preface, we acknowledge that in every case, no matter how dire the circumstances, unquestionably some harm results as a natural consequence of severing parental ties. In re Guardianship of K.H.O., supra, 161 N.J. at 355. The issue is whether the greater harm has been avoided.

Judge Brock concluded that the boys recognized their biological parents as significant figures in their lives, although Tom was more comfortable with Richard than he was with Mary. At the time of the bonding evaluations, Singer opined that Tom's relationship with his then foster parents was consistent with that observed between a securely attached child and a parental figure. Certainly, if he lost the relationship with his biological parents he would experience a negative reaction, but the reaction would be far more severe if he lost his relationship with his siblings. Similarly, Singer opined that Jim recognized his father as a member of his family, but did not seem very attached to him or to his mother. Based on the totality of the data, Singer also found that the greater loss to Jim would be if the sibling relationship was not preserved.

As to Jane, Judge Brock accepted Singer's opinion that her experiences, which have resulted in a child who suffers from a high level of anxiety, will worsen if she is not afforded the stability and permanency that termination would offer. Judge Brock noted that our Supreme Court recognizes the significance of maintaining sibling relationships, which at times, and for some children, provide the only sense of stability and continuity present in their lives. See N.J. Div. of Youth & Family Servs. v. S.S., 187 N.J. 556, 560-61 (2006). As a result, the trial judge concluded that the State had met this fourth prong of the statutory test by clear and convincing evidence.

Finally, in his brief, Richard contends that the trial court erred by ignoring Jane's inappropriate touching of her brother while at the foster parent's home. He also argues that the trial court ignored Tom's affection for him. We disagree.

The Division provided counseling and therapeutic services to Jane intended to specifically address her acting-out behaviors. The court clearly acknowledged this in its extensive findings of fact.

The boys certainly demonstrated affection for their father, a fact that the expert did not minimize. The court did not ignore this fact, but properly included it in the overall assessment of whether termination of parental rights was ultimately in the best interests of these children.3

Affirmed.

 

1 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

2 Singer was not able to conduct a bonding evaluation of the parents and Jane because of the status of the pending criminal charges.

3 Although, as previously noted, we permitted supplementation of the record, we conclude that the supplemental materials make no difference to the result in this case.