NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

R.D.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF K.D. AND Ry.D.,

Minors.

_____________________________________

January 28, 2014

Submitted December 17, 2013 Decided

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FG-17-42-06.

Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mara Spiegeland, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant R.D., the father of K.D. and Ry.D., appeals from a final judgment entered on August 30, 2012, on remand from the Supreme Court, N.J. Div. of Youth & Fam. Servs. v. R.D., 207 N.J. 88 (2011), terminating his parental rights to K.D. and Ry.D. Because we find the remand judge's conclusion that the termination was in the best interests of the children to be supported by clear and convincing evidence, N.J.S.A. 30:4C-15.1(a), we affirm.

We need not recount the entire factual and procedural background of this case, which can be found in R.D., supra, 207 N.J. at 93-107. Briefly, defendant and L.D. were married and had four children, S.D., born in 1988, H.D., born in 1990, Sh.D., born in 1992, and K.D., born in 1998. Beginning in approximately 1999, these children lived solely with defendant. Defendant also had custody of a son, Ry.D., born in 1999, from a relationship with L.B.2 L.D. had two older daughters, D.N., born in 1978, and M.N., born in 1982, who lived in defendant's home while their mother resided with defendant.

In 2005, acting under Title Nine, N.J.S.A. 9:6-8.21 to -8.73, the Division of Youth and Family Services (the Division) removed the five children living with defendant after Sh.D. alleged that defendant and sixteen-year-old S.D. were engaged in a sexual relationship. At the Title Nine fact-finding hearing, the trial judge found by clear and convincing evidence that defendant was engaged in a sexual relationship with his daughter and that his behavior put all the children in imminent danger of being impaired. Consequently, the judge determined that the children were abused and neglected within the meaning of N.J.S.A. 9:6-8.21(c). In June 2006, after the services provided failed to reunite the children with either of their respective parents, the Division filed a guardianship complaint pursuant to Title Thirty, N.J.S.A. 30:4C-11 to -15.3, to terminate the parents' rights to their children.

By the time of the Title Thirty trial, the Division only sought guardianship of K.D. and Ry.D because S.D. and Sh.D. were no longer minors, and the permanency plan for H.D. was not termination. The Title Thirty judge determined that defendant was collaterally estopped from challenging the Title Nine judge's factual conclusion that defendant, in exposing his children to his inappropriate sexual relationship with S.D., had harmed all the children. The Title Thirty court concluded that all four prongs of the best interests of the child test, N.J.S.A. 30:4C-15.1(a), were met, utilizing the Title Nine judge's findings for prong one and evidence presented in the Title Thirty trial for the remaining prongs.

Defendant appealed and we affirmed. Div. of Youth & Fam. Servs. v. R.D., 412 N.J. Super. 389 (App. Div. 2010). The Supreme Court reversed, holding that a Title Thirty court may not give collateral estoppel effect to the finding of abuse or neglect in the Title Nine proceeding to establish prong one of the four-part test in the Title Thirty termination proceeding absent clear and timely notice to defendant prior to the initial trial. R.D., supra, 207 N.J. at 121-22. Moreover, the trial court's conclusions on the other three prongs could not be considered final because the faulty prong one determination "bleeds into the remaining prongs[.]" Id. at 122. Thus, the Court directed the Title Thirty court to re-evaluate its conclusions with respect to those prongs "in light of the new findings needed as to prong one." Ibid. The Court further directed:

Th[e] reversal . . . requires that, on remand, the Title Thirty court must make its independent findings in respect of the first prong of the test and then, in the context of that determination, separately adjudge the remainder of the "best interests of the child" test.

[T]he cause is remanded . . . for a new evidentiary trial limited to the question presented by N.J.S.A. 30:4C-15.1(a)(1): whether the safety, health or development of [K.D.] and/or [Ry.D.] has been or will continue to be endangered by the parental relationship with defendant. Once those proofs are developed on remand, the court is directed further to aggregate those proofs with the earlier developed proofs as to the second, third and fourth prongs of the "best interests of the child" test and re-weigh its entire analysis and conclusions in respect of all of the elements of N.J.S.A. 30:4C-15.1(a).

[Id. at 122-23 (footnote omitted).]

The remand trial took place before Judge Kevin T. Smith3 in May 2012. At the trial, L.D.'s daughters, D.N. and M.N., defendant's step-daughters, testified in detail that they had each been repeatedly sexually abused by defendant when living in defendant's home, one of D.N.'s friends had been raped during a sleepover, and eventually each ran away at different times due to the continuing abuse. D.N. testified that the abuse started when she was ten years old, and M.N. stated that the abuse started when she was six.

Desiree Wilkins, the Division caseworker who investigated the allegation of sexual abuse in 2005, testified that Sh.D. reported that S.D. slept with her father in the living room, at night she heard S.D. crying, heard defendant saying "nasty" things to S.D., and once she walked into the living room and found her father on top of S.D. on the couch. Sh.D. informed the caseworker that she reported the abuse because she was afraid defendant would do the same thing to her. The two younger children also stated in separate interviews that defendant and S.D. slept together every night. The caseworker also reported that S.D. and defendant vehemently denied the allegations.

Psychologist Linda R. Jeffrey, Ph.D., testified, as she had at the prior Title Thirty trial, concerning the 2006 and 2007 psychological evaluations she had conducted of defendant to assess his mental health status and parenting capacity, as well as the bonding evaluation between defendant and the children. Jeffrey testified that defendant was uncooperative and reticent to provide information during the evaluation. He provided contradictory information as to whether he had a problem with alcohol, and claimed that his assigned mental health counselor had told him that he did not need treatment even though she had reported the opposite.

Jeffrey further testified that defendant absolved himself from all responsibility for the removal of the children, and believed the children would have no problems should they be returned to him after the long separation since 2005. Jeffrey found defendant's answers reflected his narcissism. The psychologist concluded during the bonding evaluation that K.D. and Ry.D. had an insecure attachment to defendant.

She diagnosed defendant as having a significant personality disorder with narcissistic, paranoid, and anti-social features. Based on her testing, she believed that defendant had a major impairment in functioning in terms of family relationships. She explained: "This . . . individual . . . is not presenting with the minimal level of parenting capacity that would allow for that person to function without placing a child at risk for harm." Because, in her opinion, defendant would not be able to create an environment that would promote the psychological development and maturing of the children, she recommended that the Division not return the children to him.

S.D. testified that the allegations against her father were not true. She said she had slept in the living room, but never on the couch with defendant, and denied that defendant had ever touched her inappropriately. She acknowledged that when she turned eighteen she went back to live with defendant, and was living there at the time of the remand trial.

In his decision, Judge Smith found D.N. and M.N. to be credible witnesses, but found S.D. not to be credible. In addition, he noted that the allegations of sexual abuse were corroborated through the younger children's report that S.D. often slept in the living room with defendant, and Sh.D.'s report that she saw defendant lying on top of S.D. Thus, the judge observed that the "abuse described by D.N. and M.N. is very consistent [with] the abuse disclosed by Sh.D."

As to prong one, Judge Smith found that the children's safety, health, and development "have been and will continue to be endangered" by the parental relationship with defendant. He cited the sexual abuse of S.D. in front of the other children and Jeffrey's opinion that defendant was not capable of providing a safe and stable home for the children. "By being sexually active with S.D. in the confines of such a small home . . . [defendant] exposed the remaining children to the emotional scars that such conduct can and did inflict." Thus, the court found that all the children suffered both physical and psychological harm through their parent-child relationship with defendant. Additionally, the court relied on Jeffrey's conclusion that defendant was highly unlikely to encourage his children to participate in counseling to address the harm or to engage in counseling himself to prevent further harm.

As to prong two, Judge Smith found that defendant was unwilling and unable to eliminate the harm to the children's development due to his personality disorder. The judge observed that this unwillingness was particularly evident from his "stonewalling" the mental health evaluators. The judge further noted that defendant's mental health issues had caused him to "focus primarily on himself and not upon the needs of his children." Moreover, the judge discovered nothing in the record establishing that defendant had cured or overcome his mental health issues.

As to prong three, Judge Smith found that the Division undertook reasonable efforts to reunite the family by assisting defendant to address and eliminate the harm found in prong one. He noted that defendant had regularly lied to the evaluators, denied any problem with alcohol at his substance abuse assessment despite evidence to the contrary, and had refused to cooperate in therapy sessions. The court concluded defendant "was given every opportunity with four mental health professionals to address the issues that resulted in the removal of the children. He did not take advantage of any."

Finally, as to prong four, Judge Smith found that termination of defendant's parental rights would not cause more harm than good because defendant posed a "significant risk of harm" to the children. The judge remarked that all the professionals concluded that contact between defendant and the children could place them at risk of harm. Judge Smith recognized that, in theory, some harm would come to the children from severing their ties to defendant. However, he opined, the "greater harm here would be to permit [defendant] to have access to his children."

The judge determined that he could "reach no conclusion other than that the harm [defendant] brought upon his children through the sexual abuse of S.D. is real and substantial and negatively impacted their health, safety and welfare, and will have continuing deleterious effects on the children." Consequently, he terminated defendant's parental rights to K.D. and Ry.D., and awarded guardianship of the two children to the Division for purposes of adoption. This appeal followed.

Defendant argues that the Division failed to prove the four prongs of the best interest test by clear and convincing evidence. On the other hand, the Division contends that the judge properly found that the Division had carried its burden. The Law Guardian agrees with the trial judge and urges affirmance.

From our independent review of the record we agree that substantial evidence exists to support the judge's conclusion. We have carefully considered defendant's arguments and find they have no merit warranting extended discussion. R. 2:11-3(e)(1)(e). We affirm essentially for the reasons expressed in Judge Smith's comprehensive seventy-page opinion. We add only the following comments.

In a Title Thirty guardianship proceeding, we are required to strike a balance between the constitutional right of parents to raise their children, and a child's right to be free from serious physical and mental abuse. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279-80 (2007). When seeking termination of parental rights under N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing by clear and convincing evidence that:

(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.

These factors are not discrete or separate elements, but should be considered together to provide a picture of what is in the best interests of the child. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010); N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).

On this appeal, our review of Judge Smith's decision is limited. Ordinarily, we will defer to a trial judge's factual determination unless those findings "went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotation marks and citations omitted). We will not disturb the Family Part's factual findings so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (citations omitted).

We owe this deference to the trial judge because he has had "the opportunity to make first-hand credibility judgments" and to gain a "'feel of the case'" over time, thus supporting a level of factual understanding that cannot be gleaned by an appellate court's review of a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293). Gauged by those standards, we find no basis to disturb Judge Smith's credibility determinations, his factual findings, or his conclusion to terminate defendant's parental rights.

The first prong of the best interests test under N.J.S.A. 30:4C-15.1(a)(1) requires us to "determine whether the 'child's safety, health or development has been or will continue to be endangered by the parental relationship.'" M.M., supra, 189 N.J. at 281 (quoting N.J.S.A. 30:4C-15.1(a)(1)); see also In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). The second prong relates to parental unfitness and requires the court to decide "'whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care.'" I.S., supra, 202 N.J. at 167 (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986)). As to the first and second prongs, the evidence is clear and convincing that defendant's actions in engaging in a highly inappropriate sexual relationship with his sixteen-year-old daughter in front of the other children and his unaddressed mental health issues harmed his children, and that, as of the time of the trial or in the foreseeable future, defendant was not and would not be able to safely parent K.D. and Ry.D.

The third prong contemplates that the Division will make reasonable efforts to assist the parent to correct and overcome the circumstances that led to the removal of the child. In re Guardianship of K.H.O., supra, 161 N.J. at 354. Nevertheless, "[t]he diligence of [the Division's] efforts on behalf of a parent is not measured by their success." In re Guardianship of D.M.H., supra, 161 N.J. at 393.

Judge Smith found that the Division had provided defendant with a wide array of services. We agree. The record contains ample evidence that the Division worked intensively with defendant for several years to provide services in order to promote reunification. Defendant's failure to avail himself of those services cannot defeat this prong.

Finally, the fourth prong, which addresses whether termination will do more harm than good, focuses on whether "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." In re Guardianship of K.H.O., supra, 161 N.J. at 355. In analyzing the evidence in light of this prong, the judge relied heavily on the testimony of Jeffrey, the Division's psychological expert, who emphasized the significant personality disorder that prevented defendant from safely parenting his children. We are in accord with Judge Smith that, balancing the lack of harm to the children from the termination of defendant's parental rights with the benefit of remaining in a stable permanent home, termination of parental rights will do much good and minimal harm. A child cannot wait for a parent to become fit. See N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). Moreover, there is no support in the record for defendant's claim that the children stated that they had wanted to live with defendant.

In sum, we conclude that Judge Smith did not err in determining that the Division had proven all four prongs of the best interests of the child test under N.J.S.A. 30:4C-15.1, and that K.D.'s and Ry.D's individual best interests require termination of defendant's parental rights so that they can be adopted.

1 A reorganization of the Department of Children and Families included the renaming of the New Jersey Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 The parental rights of L.D. and L.B. to their respective children were terminated in the initial proceedings. They did not appeal, and were not part of the remand order. See R.D., 207 N.J. at 99 n.6.

3 This judge did not preside at the Title Nine or the Title Thirty trial.