DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-1779-14T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

T.S. AND M.P.,

Defendants-Appellants.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF S.P. AND A.P.,

Minors.

___________________________________

December 16, 2015

Submitted October 13, 2015 Decided

Before Judges Lihotz and Higbee.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-25-13.

Joseph E. Krakora, Public Defender, attorney for appellant T.S., Docket No. A-0524-14 (Kourtney J.A. Knop, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant M.P., Docket No. A-1779-14 (Kevin G. Byrnes, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; George Loeser, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors (Joseph Hector Ruiz, Designated Counsel, on the brief).

PER CURIAM

In these appeals, consolidated to be addressed in a single opinion, T.S. (Tracy) and M.P. (Matt), the biological parents of S.P. (Susan) and A.P. (Andrea),1 appeal from an order dated August 12, 2014, terminating their parental rights and granting the Division of Child Protection and Permanency (DCPP)2 guardianship.

Both parents argue the trial court erred in determining DCPP proved by clear and convincing evidence that their parental rights should be terminated. Matt also argues his constitutional rights were violated by DCPP when it failed to allow him visitation with his children while he was incarcerated and challenges the admission of certain expert witness testimony. Following our review, we affirm for the reasons stated in the trial judge's well-reasoned written opinion issued on August 12, 2014. R. 2:11-3(e)(1)(A).

At trial, DCPP presented the testimony of a psychiatrist, Dr. Alexander Iofin, a psychologist, David R. Brandwein, a social worker with expertise in trauma counseling, Sue Mullen, and two DCPP case workers. Dr. Maureen Santina testified for the law guardian and a psychologist, Dr. Jesse Whitehead Jr., testified as an expert for Tracy.

The facts are set forth at length in the trial judge's written opinion, and we will not repeat them. Her written opinion evaluated the trial evidence and concluded the evidence clearly and convincingly proved each statutory prong required for termination of Matt and Tracy's parental rights and awarded guardianship to DCPP.

Our review of the trial court's decision is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). The trial judge's fact findings should be upheld if they are supported by adequate, substantial, and credible evidence. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). We defer to the trial court's credibility findings, and in particular, its fact findings because of its expertise in family matters, N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007); N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010), unless the trial judge's findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

Parents have a right to raise and maintain a relationship with a child without State interference. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008). This right is protected by the United States and New Jersey Constitutions. Ibid. This right is not absolute, as it is limited by the "State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). The State has a strong public policy that favors placing children in a permanent, safe, and stable home. In re Guardianship of K.H.O., 161 N.J. 337, 357 (1999).

When terminating parental rights, the court focuses on the child's best interests. Ibid. The State must satisfy the best-interests-of-the-child's test's four prongs, as set forth in N.J.S.A. 30:4C-15.1(a) in order to terminate parental rights. Ibid. The four prongs are

(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.

[N.J.S.A. 30:4C-15.1(a)(1)-(4).]

These four prongs require a fact-sensitive examination of the particularized evidence presented in each case. M.M., supra, 189 N.J. at 280.

As noted, we reject Matt and Tracy's separate challenges attacking the sufficiency of the evidence which supports the termination of parental rights for the reasons set forth by the trial judge. We turn to Matt's legal arguments challenging the admissibility of DCPP's experts' testimony, and the lack of services and visitation provided to him while in prison.

First, Matt argues on appeal that Dr. Iofin could not render an expert opinion because he did not review all of Tracy's treatment records before forming his opinion and did not receive a copy of Dr. Brandwein's report. Dr. Iofin acknowledged he did not obtain certain files, including the records from Straight and Narrow, the in-patient treatment facility where Tracy was last treated prior to trial. While attending Straight and Narrow, she was drug-free, in remission and generally compliant with the rules of the structured residential program. Dr. Iofin testified his opinions were based on other records given to him and his assessment of Tracy during his interview with her which occurred just prior to her admission to Straight and Narrow. The trial court allowed the testimony, determining the information Dr. Iofin considered, as well as what he did not consider, in forming his opinion went to the weight of the testimony, not its admissibility.

An expert can rely on his own knowledge and facts supplied to him by others. Bellardini v. Krikorian, 222 N.J. Super. 457, 463 (App. Div. 1988). However, "the weight to which an expert opinion is entitled can rise no higher than the facts upon which the opinion is predicated." State v. Jenewicz, 193 N.J. 440, 466 (2008) (quoting Johnson v. Salem Corp., 97 N.J. 78, 91 (1984)).

The trial court properly admitted Dr. Iofin's testimony. While it is true he did not review the records of Tracy's most recent efforts to end her substance abuse, his opinions were admissible based on the facts gathered during his evaluations and the information he reviewed. The trier of fact had the right to determine how much weight to give his opinion. Cross-examination revealed the gaps in the materials he reviewed, which the trial judge acknowledged in her opinion. The trial judge stated in her opinion she gave little weight to Dr. Iofin's report.

Matt also argues the trial judge erred in allowing certain testimony of the State's expert, Susan's trauma counselor Mullen. Following our review of Matt's objections, we conclude Mullen's factual observations and much of her expert testimony were admissible. We do agree the trial judge erroneously allowed Mullen to describe the psychiatric condition known as Reactive Attachment Disorder (RAD), especially since Mullen herself admitted she was not an expert on RAD. However, we find this error was harmless.

On direct examination by DCPP, Mullen was allowed to explain that RAD occurs when a child does not bond with her care giver causing developmental and behavioral issues. She further stated RAD was caused by neglect or by an unstable environment. Opposing counsel objected to her testimony because Mullen did not have the training or experience necessary to diagnose RAD. Dr. Whitehead testified that RAD is often misdiagnosed. He asserted a psychiatrist should be involved to diagnose whether a child suffers from the disorder.

In ruling on Matt's objection to Mullen's testimony, the trial court concluded Mullen was qualified based on her training and knowledge as a trauma counselor to provide an overview of the disorder and allowed the testimony.

New Jersey Rule of Evidence 702 states, "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." N.J.R.E. 702 (emphasis added).

RAD is a rare and unique psychological disorder.3 Mullen should not have been allowed to testify about RAD, especially after she admitted she was unqualified. Nevertheless, the error was harmless because other strong, substantial, credible evidence from Mullen and other witnesses showed Susan suffered emotionally from the conduct of her parents, who stipulated they engaged in acts of abuse or neglect, and proved Susan's life with Matt and Tracy was unstable and unsafe. The trial court found Susan's emotional trauma was demonstrated by her expressions of fear of her biological parents, her behavioral difficulties when she first was placed in her resource home which required trauma counseling, and her fear of being removed from her resource home when DCPP made unannounced visits. These emotional responses by Susan resulted in an order suspending visitation. This evidence demonstrated Susan's fragile emotional condition, a finding not dependent on a RAD diagnosis. Mullen did have the expertise as a trauma counselor to describe Susan's behavior and give her opinions on Susan's relationships with her resource parents and her biological parents.

Dr. Whitehead performed a psychological evaluation on Tracy, and although he concluded she could be capable of independent unsupervised parenting at some point in time, he acknowledged she was not ready to do so at the time of the trial. This was a significant admission since any additional attempts to rehabilitate and train Tracy would further delay the children's opportunity to have a permanent stable home without any guarantee Tracy would conquer her significant parenting deficiencies.

Next, we consider the issue of the lack of a formal bonding evaluation between Susan and her biological parents. Tracy and Matt argue the lack of a bonding evaluation with Susan weakened the trial court's ability to analyze prong four - whether the termination of parental rights would result in more harm than good.

Originally, bonding evaluations with both children were scheduled but did not take place because both Tracy and Matt were non-compliant with their DCPP recommended treatment. The trial judge later concluded formal bonding evaluation sessions between Tracy, Matt, and Susan were unwarranted as it was in Susan's best interest not to interact with her biological parents, whom Susan feared. Mullen testified Susan was very disturbed by the prospect of being removed from her resource family.

The court must examine the children's bond with both the biological and resource parents, weighing the potential harm of termination against the harm of removing children from their resource home. K.H.O., supra, 161 N.J. at 355 (citing In re Guardianship of J.C., 129 N.J. 1, 25 (1992)). Weighing this requires expert inquiry directed at the strength of each relationship. J.C., supra, 129 N.J. at 25.

The fourth prong of N.J.S.A. 30:4C-15.1(a)(4) is a failsafe provision against termination even when the other standards are met. G.L., supra, 191 N.J. at 609. Under prong four, the question is whether the child's interest will be served by terminating parental rights, not whether the mother and father are worthy parents. E.P., supra, 196 N.J. at 108. Terminating rights "without any compensating benefit, such as adoption, may do great harm to a child." Id. at 109. However, "[w]hen a parent has exposed a child to continuing harm through abuse or neglect . . . and when the child has bonded with resource parents who have provided a nurturing and safe home . . . termination of parental rights likely will not do more harm than good." Id. at 108.

In this case, the children were in a resource home where they not only bonded with their resource parents but were being offered a permanent, stable, safe home through adoption. There was overwhelming evidence that Susan did not have a significant bond with either biological parent, but had a strong bond with her resource parents. As noted above, visitation was suspended by the trial court which found supervised visits with the biological parents caused Susan to suffer emotional regression as observed by Mullen. We find the trial judge did not abuse her discretion in making this decision.

Finally, Matt argues DCPP failed to facilitate visitation with his children or provide him with services during his incarceration. Matt contends the enumerated guidelines in R.G., which governs DCPP's services to inmates, were not followed. R.G., supra, 217 N.J. at 563. We disagree.

In R.G., the Court held when a child's incarcerated parent's release was imminent and the parent wished to have the opportunity to be united with his child, DCPP "must do more than merely speak with the parent and provide two psychological evaluations." Ibid. Some of the services the Court suggested were: visitations where appropriate, transportation to court proceedings, contacting parents and investigating the parent-child relationship's history, and inquiring into the parent's post-release situation. Ibid. However, the Court stated it was up to "the agencies charged with these statutory responsibilities" to determine whether such services were feasible, and the Court did not mandate these services be extended, but stated they should be considered. Id. at 563-64.

Whether a child should visit his incarcerated parent is determined by a child's best interest standard and not the parent's wishes. Fusco v. Fusco, 186 N.J. Super. 321, 326 (App. Div. 1982). In deciding whether to grant visitation, we stated there should be factual exploration and sensitivity given to personal and family dynamics and motivations. Id. at 327.

Under the facts of this case, Matt's argument lacks merit. There is evidence the children were too young and emotionally fragile to be subjected to the trauma visitation would impose on them while their father was in jail. There was expert evidence that Susan's emotional state and her fear of Matt made visitation detrimental even when he was not incarcerated. More significantly, when Matt was given opportunities for visitation when he was not incarcerated, his attendance was sporadic at best. He demonstrated his lack of concern for his children by his sporadic visitations and his failure to utilize services offered to him when they were available. In weighing the family dynamics and considering the expert recommendation, it was proper to deny Matt's visitation with the children.

The overwhelming evidence demonstrated that Tracy and Matt's inability to treat their drug abuse or psychological issues for years had deleterious effects on their children. Neither Tracy nor Matt were able to provide a stable or safe home for their children.

We conclude the trial judge's decision to terminate parental rights was supported by ample credible evidence in the record. There are no grounds to disturb her well-reasoned determinations regarding the four prongs of N.J.S.A. 30:4C-15.1(a). For the reasons set forth above and in the trial judge's opinion, we affirm the order terminating the parental rights of Matt and Tracy.

Affirmed.

1 We use fictitious names for the parties to preserve their confidentiality.

2 The Division's involvement with the family occurred prior to the passage of the June 29, 2012 legislation, which reorganized the Department of Children and Families, including renaming the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10(b)). To avoid confusion we refer to the Division by its current name.

3 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 265-68 (5th ed. 2013).