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

RECORD IMPOUNDED

 

 

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-6298-11T1

A-6301-11T1

 

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,1

 

Plaintiff-Respondent, v.

M.A.W., Sr., and K.M.J.,

 

Defendants-Appellants.

 

 

 

 

IN THE MATTER OF THE GUARDIANSHIP OF D.M.W., S.A.W., J.L.W.,

A.L.W., and M.A.W., Jr.,

 

Minors.

 

 

 

 

Submitted December 11, 2013 Decided

February 4, 2014

 

Before Judges Sapp-Peterson, Lihotz and

Hoffman.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-81-11.

 

 

 

 

 

 

1 A reorganization of the Department of Children and Families under L. 2012, c. 16, effective June 29, 2012, changed the name of the Division of Youth and Family Services to the Division of Child Protection and Permanency.

JosephE.Krakora, PublicDefender, attorney forappellantM.A.W.,Sr. (MaryPotter, DesignatedCounsel, on thebrief).

 

JosephE.Krakora, PublicDefender, attorney forappellantK.M.J.(JenniferM. Kurtz, DesignatedCounsel, on thebrief).

 

John J.Hoffman, ActingAttorney General, attorney for respondent (Andrea M. Silkowitz, Assistant AttorneyGeneral,of counsel; ElizabethSherwood, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender,Law Guardian,attorney forminors(Todd Wilson, DesignatedCounsel, on thebrief).

 

PER CURIAM

 

TheseareconsolidatedappealsbyK.M.J. (Kim)2,themother of five childrenand M.A.W.(Martin)thefatherof Kim'sthree youngest children. Kim and Martinare thebiological parentsof Jane,bornNovember2,2006;Amy,bornMarch16,2008;and Junior,bornAugust21,2011. KimandT.M.W.3 (Tom)arethe biologicalparents of David,bornFebruary2, 2000,andSusan, bornDecember4,2000. KimandMartinappealfromtheFamily Partorderterminatingtheirparentalrightstotheirchildren

andgrantingguardianshiptotheDivisionofChildProtection

 

 

2Weusepseudonymstoprotecttheparties'privacyandforease of reference.

 

3 OnApril10,2012,Tom,whowasincarceratedinPennsylvania, appearedtelephonically. Hewaivedhisrighttotrialand agreedtoavoluntaryidentifiedsurrenderofhisparental rights to David and Susan.

 

andPermanency(Division). TheyarguetheDivisionfailedto satisfythestatutoryprerequisites for terminating parental rightsandamendeditsinitialguardianshipcomplainttoadd their youngest child to the action too soon after that child's birth. TheyadditionallyarguethecourtfailedtonotifyTom of his righttocounselbeforehevoluntarilysurrenderedhis parental rights. As it did before the trialcourt, the Law Guardian supports the Division'sposition seeking termination.

Basedonourreviewoftherecordandapplicablelaw,we are satisfiedthe evidenceinfavor of the guardianshippetition overwhelminglysupportstheterminationofKim'sandMartin's

parentalrights. See,e.g.,N.J.Div.ofYouth&FamilyServs.

 

v.M.M.,189N.J.261,279(2007)(holdingareviewingcourt

 

shouldupholdthefactual findings respectingtheterminationof parentalrightsif they aresupported by substantialcredible evidence in the record as awhole). Accordingly, we affirm.

Thefollowingfactsandevidencewereadducedduringthe six-daytrialbeforeJudgeMaryGibbonsWhipplethattookplace onnon-consecutivedaysinAprilandMay2012. TheDivision presentedthetestimonyofitscaseworkersassignedtothe family,SherryGrobarzandAmandaWorley;J.A.J.(Jennifer), Kim'ssister;anditsexpert,ElizabethSmith,apsychologist. TheLawGuardianpresentedFrankDyer,apsychologist,asits

expert and Jennifer Rosencrantz, M.A., L.P.C., David's therapist. Bothdefendantstestified.

The Division first became involved withthefamilyin 2000 whenitreceivedareferralfollowingSusan'sbirththatthe babyhadtestedpositiveformarijuana. Kimacknowledgedshe used marijuanatwo weeks before Susan's birth. KimandTom separated earlyin 2000,whileKim was pregnantwith Susan. At thetimeofSusan's birth,KimandDavidwereliving with her parents. Afteranumberofvisits with Kim,theDivisionclosed itsfile. Itwasnotuntil2004thattheDivisionbecame involvedwiththefamilyagain. Atthattime,itreceiveda referralthatKim'sboyfriendhadhungDavidupsidedownon the bathroom dooraspunishment. Bythe time the Division conducted itsinvestigationtheboyfriendhadmoved. AlthoughSusanand Davidconfirmedtheincident,Kimdeniedtheallegation. Kim, however,agreedto acase planallowingherparentstocontinue physicalcustodyofSusanandDavid,whohadbeenlivingwith them sincethe incidentwith theboyfriend.

KimmetMartinin2005andtheycommencedlivingtogether.

 

In October2005,theDivision receivedareferralfrom David's school. Theschool stated thatduringa telephone conversation withKim,inwhichtheyremindedherofamissedappointment, theyoverheardKim'sboyfriendinthebackgroundthreateningto

killherifshelefthim. Whenpolicearrivedinresponseto thereferral,anunidentifiedmanfled outtheback doorand policesawKimwalkingoutofthewoods. Shediscountedthe incidentexplainingtotheDivisionthatshehadthrownavase and theargumentwas not about the school.

Beginning inMarch 2007andcontinuinguntil thechildren were removed on May11,2010,theDivisionreceivedseveral referrals. Thereferralsincludedreportsofinappropriate sexual behavioron thepart ofMartinwithSusan,Martin's excessivedrinking,domesticviolence,andassaultivebehavior on thepartofDavidatschool. TheDivisiondeterminedthat theallegationswere unfounded,butopened a case file for services. BothKimandMartinagreedthathewouldnothave unsupervisedcontact with Davidor Susanuntilthefamily underwent psychological evaluations through the Family EnrichmentProgram.

NotwithstandingtheagreementreachedwithKimand Martin, theDivisionentered additionalsafety plansduringthis time period after responding to additional referrals alleging domesticviolence. Further,thepolicerespondedto an altercationbetween Martin and an intoxicated male in the home; the children were present, but were upstairs during the

incident. Davidrantoaneighbor'shouseandcalledpolice. Police responded, but no arrestswere made.

OnOctober22,2009,thecourtenteredanordergranting the Division's application for care andsupervision of,by that point,the fourchildren, withKim remainingthe parent with physicalcustody. ThecourtorderrestrainedMartinfromthe home. Thissameprovisionwasincludedinfivesubsequent ordersissuedthroughMay 4, 2010. Thelasttwoof suchorders, datedApril22 and May4, 2010,statedthatallof thechildren would be removedfrom Kim's custody if she allowed Martin back into the home.

Also duringthistimeperiod,Martincompletedan alcohol abuseevaluation,attendedasubstanceabuseprogram,andhe, Kim, andSusanunderwentpsychologicalevaluationsthroughthe CenterforEvaluationandCounseling. InMarch2010,the Division arranged for in-homeindividual therapyfor Kim, Susan, and David.

NotwithstandingnumerouscourtordersprohibitingMartin's

 

presenceinthehomeandKim'shomeandsafetyplanagreements assuringthatKimwouldcomplywiththiscondition,onMarch16,

2010,policerespondedtoanotherdomesticdisputeatKim'shome

 

andfoundMartinhidinginthecloset. Policemadenoarrests andKimdidnotseekatemporaryrestrainingorder,althoughshe

informed policethat Martin wasnot supposed tobe in thehome. Kimsignedanother safety planwiththeDivisionagreeing that Martinwould not be allowed in the homeandthat she would immediatelycontact police.

OnMay11,2010,theDivisionexecutedanemergencyremoval

 

of thechildrenfrom Kim'scustody aftersubstantiatingthat Kim and Martin violated thecourt order prohibitinghis presencein thehome. Police, respondedtoafireat thehome,which they learnedhadbeensetbyDavidwhohadbeen burning leaves. They foundMartinhidingunderKim'sbed. Thechildrenwereplaced with theirmaternalgrandparents,withwhom theycontinued to reside.

JuniorwasbornonAugust21,2011. Atthetime,Kimand

 

Martin were living together andexpected to maintain physical custody ofJunior. However,theDivisionfiledanabuseand neglect action seeking custody, care and supervision of Junior. The court granted the application, stating:

Continuationofresidenceinthehomewould

becontrarytothewelfareof thechild because of allegationsthat, due to the pendingguardianship litigation and the Division's assessment that theparents are unableor unwilling toprovidea safe and stable environment for [theother four children], placing a newborn with the parentswould expose the child to an unacceptable andsubstantial risk of harm basedonthesignificantandwell-documented

history of abuse and/or neglect of the children.

 

During theirtestimony,bothcaseworkersacknowledgedthe Division'sconcerns about the children's placement with their grandparents,butexpressed thatthoseconcernshadbeenallayed becausethegrandparentshadmadegreatprogressincaringfor thechildrenandwantedtoadoptthem. Kim'ssistertestified that sheenjoyedacloserelationshipwith thechildrenandwas committed to supportingherparents in raising the children.

Dr. Smith testified that she performed psychological and

 

bondingevaluations of the family in 2011and early 2012. Based upon those evaluations,she found that Kim hadstrengths as a parent and lovedher children but that herbiggest impedimentto reunification wasthat sheappeared unable to acknowledge the extentandsignificanceof thedomesticviolencethat permeated her relationship with Martin and the impact the domestic violencehadupon thechildren. Dr.Smithconfirmed her assessmentthroughtestingsheadministeredtoKim. Thetest resultsrevealedthatKim"presented as an extremely passive and dependent individual,"who minimized and dismissed Martin's behavioraswellastheimpactofhisbehavioruponher children. Dr. Smith concluded thatKimwouldnotbe ableorwas unwillingtoprotectherselfandherchildrenfromMartinor someotherabusivepartner,and,therefore,livingwithKim

should not be consideredas apermanencyplanforthechildren. Sheagreedthatthechildren'splacementwiththegrandparents was notperfect,but believed the alternatives would beworse.

Dr. Dyer conducted psychological evaluations of the

 

grandparentsandDavid,andalsoconductedabondingassessment of thegrandparentswiththefourolderchildren. Juniorwas notinvolvedintheseevaluations. Baseduponhisevaluations andtest results,Dr.Dyer recommended thatthefour older children remainwith their grandparents. Heconcludedthatthe grandmotherappeared "tobe veryheavilyemotionally investedin thewelfareofallfourgrandchildren,"andthatshewasa loving and committed caregiver for them. He found no indication "thather ageinanywaylimitshercapacitytocare"forthe children,despite reportsfrom thefamily's therapist, Rosencrantz,thatthegrandmotherwas"somewhatoverwhelmedby thebehaviorproblemofthetwoolderchildren,"andthatshe "has been unableto intervene successfully to prevent the older children from picking on [Jane]."4

Nevertheless, Dr. Dyer found no basis for depriving the

grandmother of theopportunitytocontinuetocareforthe children. Inhisreport,heindicatedthegrandmother"maynot

 

 

 

4 Attrial,however,Rosencrantztestifiedshehadnoconcerns about the care David was receiving in the grandparents'home.

haverealizedattheoutsetwhatthefullextentofthe children'sproblems[were], shedoes notappearto be deterred from caringforthem nowthatshehasbeenexposed to the full impactoftheirpsychopathology." Furthermore,heopinedthat "[w]hatever deficienciesmayexist in herparentingstyle... are verylikelyto beresolvedthroughtraining,counseling, and psycho-education."

Similarly,Dr.Dyer'sevaluationrevealedthegrandfather wasinvested inthechildren andhadactivelysoughtto betheir caretaker. However,hefoundthegrandfather"display[ed]a mild visual-motor integration problem and a significant impairmentinshort-term visualrecall," readingonlyata sixth gradelevel,anddisplayed"alackofsensitivitywithrespect to hisremarkstowardthechildren,"byjokinglydirecting insultstowardthem. Also,Dr.Dyeropined thatalthoughitwas "clear"thegrandfather"loves all fourof the children," David was his obvious favorite. He concluded, however, the grandfathershould notbedisqualifiedfrom beingthechildren's caretaker. Heexplained that although thegrandfather's "cognitivelimitations do presentsomething of aproblemwith respect to his profiting sufficiently from counseling or parenting training or coaching,"thegrandfather"is so invested in allofthesechildrenandhasactivelysoughttobetheir

caretaker." Additionally, heopined thechildren's ongoing relationshipwiththeirgrandfather"makeshiman invaluable resource for them."

Aspartofhisbondingevaluation,Dr.Dyerassessedthe

 

interaction between the four older children and the grandparents. He observedthatthechildrenwererespectful towardstheirgrandparents,emotionallyresponsive to them,and appeared to be relaxed,secure and happywhile interacting with them. Inhisopinion,therewaseveryindicationthatthe childrenwereinanenvironmentwheretheywerehavingtheir needsmetby caretakerswithwhom they hadformedaprofound emotional tie.

FocusinguponDavid,Dr.DyerspecificallynotedthatDavid

 

wasreadingbelowhisgradelevel,andhad"asignificant visual-motorintegrationproblem," oftenseeninchildrenwith AttentionDeficitHyperactivityDisorder. HefoundthatDavid had"averyhighanxietylevel,andisemotionallyvolatile," and displayed"rather severe problems" despite taking medication prescribedbyhistherapistto address his problems. Heopined thatDavidwould"clearlybeaverychallengingchildtocare for on a permanent basis, andthese challengesare going to increase exponentially as he enters adolescence." Nevertheless, herecommendedthatDavidremainwithhisgrandparents,"where

he is receiving appropriatestructurenurturance,guidance,and positive rolemodeling." Dr.Dyer explainedthatremovingDavid fromthecareofhisgrandparents andplacinghimwith any other caretakerwashighly likely to resultin Davidexperiencing "a severe regression in his emotional and behavioral functioning."

Dr.Dyertestified that he hadconcernsforSusan,whose problems,inhisopinion,appeared"tobemoreinternalized." He characterizedher as a "parentifiedchild,"meaningthatshe continued to lookafterheryounger sisters even at the grandparents'home. Also,althoughshereportedtohimduring theevaluationthatDavidoftenattackedher,she"seemedto be protective" of him and "to be resignedto hisabusive behavior towardher." Hedidnotfindthat Susandemonstratedapositive emotionalconnectionwithKimandrespondedwithindifference when he askedherhowshefeltaboutreturningtoKim'scare. Thus, he opinedthat exposing Susan to another disruption would have destructiveeffects on her,and wouldverylikely undo most of the progress that she had made sinceherremoval.

Dr. Dyer further concluded that Jane appeared to have

 

formed a genuine attachment to her grandparents. The grandparentstoldhimthat sinceherplacement,Jane hadstopped "bedwettingandnightlymasturbation,"and"stand[ing]stillas ifinadaze." HeexplainedthatJane"experiencesstability,

security, structureandnurturance"in herplacementwiththe grandparents, and he noted thatthey werecommitted toobtaining therapeutic services for her. Thus,he opined that Jane "should notbesubjectedtothelossofherattachmentfigures,"and thatifsheweretoberemovedfromhergrandparents'care,"it is very highlylikely that theexcellent progressthat she has made,bothintermsofheradjustmenttothehomeandher work with her therapist, would be undone."

Finally,Dr.Dyeropinedthat,eventhoughshedid"not seemtohavebeenasaffectedbyexperiencesintheparental homeas wereheroldersiblings,"Amyhad"veryclearlyformeda deepattachmenttohergrandparents." Heopinedthattherewas "a highlikelihood"thatthe grandparentswere Amy's "psychologicalparents," andthat therewas"a very high likelihoodthatshewouldbeharmedpsychologicallyasaresult of beingdisrupted [or severed]fromthis placement"with her grandparents.

Thus,"toareasonabledegreeofpsychologicalcertainty,"

 

Dr.DyerconcludedthatthebestinterestsofDavid,Susan, Jane,andAmywouldbeservedbyachievingpermanency. He opinedthatthis permanency would best beachievedthrough adoption by the children'sgrandparents.

In January 2012,Dr.Dyercompletedapsychological evaluationofKim andMartin. He also conductedbonding evaluationswithKimandherfivechildrenandwithMartinand his three children. In his report,he stated that during Kim's interview,she presentedas"childish,dependent,passive,and unassertive." Kimtoldhimthatherparentsdidnotlike Martin,andthatshehasnotspoken to eitherof themorher sistersinceafewweeksafterthechildren'sremovalin2011. She relayedthather mother "once encountered [Martin]at [her] new apartment,"and "'made a scene aboutit.'" She accusedher sister of "'start[ing]a little bit of problems andsa[ying] [Martin] molested [Susan].'"

Kim also told Dr. Dyer that her children were removed

 

becauseMartingot"physical"infrontofthem,andbecause David started a fire. She believed that she was being persecutedandthatherinterestsas to herchildren werebeing underminedbyothers. Nonethe