DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.M IN THE MATTER OF THE GUARDIANSHIP OF M.M.-R., E.A.M.-R O.M.-R and M.M.-R Minors

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NOT FOR PUBLICATION WITHOUT THE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 CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

E.M.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF M.M.-R., E.A.M.-R., O.M.-R.

and M.M.-R.,

Minors.

___________________________________

March 11, 2016

Submitted October 5, 2015 - Decided

Before Judges Fasciale and Nugent.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-33-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert W. Ratish, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant E.M. appeals from a September 22, 2014 guardianship judgment terminating his parental rights to his four children, two sons and two daughters. He contends the Division of Child Protection and Permanency (the Division) failed to prove by clear and convincing evidence that termination of his parental rights was in his children's "best interests," as codified in N.J.S.A. 30:4C-15.1(a)(1)-(4). The Division and the Law Guardian oppose the appeal. For the reasons that follow, we affirm.

I.

The Division first became involved with defendant on March 31, 2006, when the children ranged in age from seven years to nine months. Defendant reported to police that he had come home from work at approximately 10:30 P.M. to find the children's mother missing and the children home alone. The police notified the Division, and defendant told Division caseworkers he had taken the children to their maternal grandmother. The Division substantiated the children's mother for neglect and inadequate supervision.1 Defendant eventually moved in with the children and their maternal grandmother.

Between May 2006 and March 2012, the Division received sixteen referrals, mostly alleging defendant abused alcohol and physically abused his children. One referral alleged defendant had attempted to sexually abuse his older daughter. Of the sixteen referrals, defendant was substantiated three times: once for physically abusing his older daughter, then age eight; once for neglecting the children by leaving them alone; and once for physically abusing his younger son, then age five. For abusing his younger son, defendant was arrested on May 17, 2008, charged with child endangerment, and incarcerated in the county jail. The grand jury declined to indict defendant for child endangerment. The criminal case was remanded to municipal court on a simple assault charge. While defendant was incarcerated, the children remained in the custody of their maternal grandmother. Because defendant was incarcerated and the children were with their maternal grandmother, the Division determined there was no longer a safety concern and closed its file on August 7, 2008.

On October 6, 2010, the Division learned the children had returned to defendant's custody. The Division referred defendant to Family Prevention Services (FPS) through Catholic Charities. FPS set up services for defendant, including independent living, in Somerset County, but he moved to Mercer County. While the children were in defendant's custody, defendant struggled to obtain and maintain employment and housing. He claimed this was because of his criminal history of abusing his children and his health issues of diabetes and heart disease, which were exacerbated by his substance abuse.

Following two more referrals in 2010 and 2011, the Division received a referral on March 16, 2012, that defendant might be sexually abusing one of his daughters. During the ensuing investigations by the Division and the police, the allegations were confirmed and defendant was arrested. The children stayed temporarily with non-relatives.

On April 3, 2012, the Division filed a verified complaint and order to show cause seeking the custody, care, and supervision of defendant's children. The court granted the Division's application. The court ordered defendant to provide any family resources to the Division. The same day, the Division placed the children in a resource home, where they have since remained. They have not seen defendant except when attending court-ordered evaluations with him, evaluations also attended by Division personnel.

Between the date of defendant's incarceration in March 2012 and commencement of the guardianship trial in September 2014, defendant was imprisoned for a considerable period of time. Following his arrest, he posted bail on June 5, 2012, was hospitalized on June 12 and June 13, and thereafter was detained by Immigration and Customs Enforcement (ICE) pending his deportation. During that time, defendant declined to undergo a psychological evaluation, invoking his right against self-incrimination.

Defendant was released from confinement in January 2013 due to severe health issues. He was staying with the family that posted his bail, but apparently a condition of his release was that he not be around children.2 As the result of defendant's violation of this condition, he was re-arrested and incarcerated for another five or six months.3 In October 2013, defendant was again incarcerated for violating conditions of his release by living in a house where children were present. Defendant was released in August 2014, a month before the guardianship trial commenced.

Following the removal of the children from defendant, the Division considered resource placements. The Division asked defendant to provide relatives who might act as resource parents. The children's maternal grandmother had been ruled out as a placement resource because she was an undocumented citizen and had been substantiated for inadequate supervision of the children. The Division ruled out two cousins recommended by defendant because defendant did not provide contact information for one, and the other would not answer her phone or her door when Division personnel attempted to contact her. In fact, the children did not want to be placed with defendant's cousins because they feared it would lead to unwanted contact with him. The Division also ruled out a friend of defendant because defendant's children were unacquainted with his friend and did not feel comfortable with her involvement with defendant.

The Division attempted to provide services to defendant, but was restricted due to defendant's incarceration. Because defendant was facing deportation, and because he was incarcerated in an immigration unit, the Division was unable to provide him with services while he was there. Further, defendant refused to undergo a psychological evaluation while his criminal charges were pending, fearing that he would incriminate himself. Defendant steadfastly refused to undergo the psychological evaluation even through the court and the Division made clear he could have no contact with the children until he did so.

In May 2013, defendant finally underwent a psychological evaluation. The psychologist recommended supervised visits between defendant and his sons "unless it is felt contraindicated by the boys' treating therapist"; no visits with his daughters "unless it is contraindicated by the girls' treating therapist"; further psychological testing and a psychiatric interview. The Division also attempted to schedule services for defendant including anger management, parenting skills training, and individual therapy. Unfortunately, the services had to be cancelled when defendant was not released as previously anticipated. When defendant was finally released, the Division attempted to set up substance abuse treatment, but defendant claimed he was unable to provide a urine sample due to a health condition. The Division decided to set up a hair follicle test, but that was still pending when the guardianship trial took place.

Defendant and his children underwent evaluations by experts in anticipation of the guardianship trial. The trial took place during three days in the second week of September 2014.

Meanwhile, following the removal of the children from defendant, the children were afforded numerous services, including psychological evaluations, counseling, and therapy. During evaluations and treatment, the children disclosed a pattern of physical abuse by defendant, particularly abuse of one of the boys, as well as defendant exposing the boys to pornography. In September 2012, a judge determined at a fact-finding hearing defendant had abused or neglected his children by subjecting them to excessive corporal punishment, having inappropriate sexual contact with one of them, and having failed to adequately care and supervise them. The court also cited defendant's "unremediated substance abuse."

Between September 2013 and March 4, 2014, the Division filed two guardianship complaints that were dismissed for reasons not relevant to the issues on this appeal. On March 4, 2014, the Division filed another guardianship complaint and three months later the court approved the Division's permanency plan of terminating defendant's parental rights. The guardianship trial took place in September 2014. On September 22, 2014, the court filed a judgment of guardianship terminating defendant's parental rights to the children. The Division presented the testimony of adoption worker Johanna Uydess and the expert testimony of Dr. Alan Lee. The Division also introduced voluminous documentary evidence, including expert reports and bonding evaluations. Defendant testified on his own behalf.

The Division developed the facts we have recounted above, through the testimony of its adoption worker and its documentary evidence. The adoption worker also explained that the resource family was unable to commit to adopting the children because one of its members had been diagnosed with a serious illness. Nonetheless, the children were welcome to stay in the home until the Division found an adoptive home, even if that meant the children would continue to stay with the resource parents indefinitely. The children preferred to stay with the resource parents.

The parties stipulated to Dr. Lee's expertise in psychology and forensic evaluations. Dr. Lee authored reports concerning the appropriateness of bonding evaluations between the children and defendant; a psychological and psycho-sexual evaluation report concerning defendant; and four separate reports of psychological bonding evaluations, one for each child concerning the relationship with defendant. Preliminarily, Dr. Lee met with the children separately after receiving some background information about them and their father. The older daughter told the doctor she did not have a close relationship with defendant, generally described some history of mistreatment or maltreatment by the father towards at least one of the four children, and remarked that "he hurt one of us." She was reluctant to elaborate on that remark. Eventually, she said defendant had hit her two brothers using things like a belt or a cord.

The older son also described a history of defendant hitting him or his siblings with items such as a belt, clothes hangers, or a shoe. The younger son said his relationship with his father was "not very good." The doctor discerned from the youngest child's demeanor that she had an ambivalent relationship with defendant. Based on the preliminary background he had received, as well as his interview with the children, Dr. Lee saw no compelling reason that any of the children "could not at least have some limited contact with the birth father in the context of completing these bonding evaluations." The children did, however, indicate they were doing fairly well in foster care and "several . . . conveyed a general desire to remain where they are currently in placement."

Before conducting the bonding evaluations, Dr. Lee conducted a psychological and psycho-sexual evaluation of defendant. Based upon psychological testimony, interviews, observations, and his review of records, the doctor evaluated such things as defendant's ability to provide the children with consistency and stability, protect the children and guide them properly, and nurture them. Defendant's score on the abuse scale was significantly elevated. The elevated score was consistent with the children's accounts and Division records. In view of defendant's significantly elevated score on the abuse scale, Dr. Lee would be concerned if the children were returned to his care.

Physical abuse was not the doctor's only concern. The testing demonstrated defendant was "an individual with some rather ingrained and maladaptive personality and character traits." The doctor characterized these traits as "long term . . . enduring, fixed traits and characteristics[.]" According to the doctor, defendant's heavy focus on himself and his own needs, wishes, and desires "takes away from an ability or willingness to be sensitive and responses to what other people such as his children might need." The "character traits compromise [defendant's] ability to provide things like nurturance and guidance and protection to the children."

Dr. Lee was also concerned about defendant's risk of substance abuse, namely, alcohol. More significantly, if the "collateral accounts" of defendant's sexual abuse of one of his children were accurate, then he would fall within a moderate risk classification for future sexual offense.

In addition to the foregoing concerns, Dr. Lee had concerns about defendant's knowledge of parenting, child rearing skills, his beliefs about discipline, disciplinary methods, and concerns about defendant's being an independent caretaker of a minor child. The doctor's prognosis for defendant was "guarded at best and most likely poor for any type of significant changes in himself or his situation." For these reasons, the doctor "did not support [defendant] being an independent caretaker of the minor children at this time or within the foreseeable future."

Dr. Lee conducted his interview with defendant while defendant was incarcerated. Defendant's plans for post-incarceration employment and housing were somewhat vague. Defendant apparently had no specific apartment or residence in mind. Adding to the uncertainty of defendant's ability to provide for the children was an anticipated hearing with ICE in October 2014. When the doctor evaluated defendant in March 2014, the doctor recommended defendant undergo substance abuse evaluation, random drug testing, and, if needed, substance abuse treatment. The doctor also recommended defendant undertake a parenting educational program as well as individual counseling.

Following his assessment of defendant, Dr. Lee conducted bonding evaluations with the children. The evaluations took place in the Mercer County Correction Center in a "library-like setting on the third floor of the facility." Dr. Lee felt that the setting was appropriate. Dr. Lee noted the children "are not remarkably conversant in Spanish" while defendant's preferred language is Spanish. That raised concerns about the children's ability to communicate with their father in the absence of an interpreter. Nonetheless, an interpreter was present during the bonding evaluations.

The bonding evaluations consisted of four "facets": forty to forty-five minutes of observation of the "free time" given to the child and adult; an interview with the child; an interview with the adult; and gathering "collateral information." Dr. Lee completed the four bonding evaluations on July 21, 2014, less than two months before trial. The bonding evaluation of defendant and his older daughter had to be completed without the "observation" component, because the child decided she did not want to see defendant and wanted no contact with him. Dr. Lee explained that the older daughter, as well as the other children, had been removed from the birth father in late March or early April 2012, and had not returned to his care since then. The older daughter had continued to flourish and progress outside defendant's direct care.

Defendant felt his relationship with his older daughter was "fine." Her view, on the other hand, was that a relationship with defendant caused some "discomfort, anxiety and ambivalence." Dr. Lee concluded that the older daughter's relationship with defendant was "insecure, avoidant and disorganizing to her." Consequently, there was no significant and positive psychological bond, which in turn led the doctor to conclude there was "a low risk of the child . . . suffering severe and enduring psychological or emotional harm if a relationship with the birth father is ended." If such a relationship were permitted to continue, there was a risk the child would consider this "maladaptive bond as being the norm[,]" and "see or come to believe that this is how life should be." For all of the reasons explained by Dr. Lee, he concluded "[t]he most supported permanency plan is to be one that is other than reunification of [the older daughter] to [defendant]."

Dr. Lee reached similar conclusions as to the other three children. The younger son became uncomfortable and avoidant as the father questioned whether the child had told the Division he did not want to return to defendant. As the father pressed the questions, the child stopped making eye contact, looked away, and became "aloof, uncomfortable." The child stopped verbally engaging with defendant and generally seemed to pull away from being engaged in any way. When the father questioned the child about what he had done in the summer, and the child began to describe camps or therapies, defendant appeared surprised that the child would be doing things like that. When defendant asked the child where he was living, the child began to rock in his chair, nervously and anxiously. Dr. Lee had to intervene and instruct the father not to ask such questions. The doctor took the child aside and the child said he did not want to resume the session with defendant. The child said he would like to continue to live where he was currently living.

As with the older daughter, Dr. Lee concluded as to the younger son that the child's relationship with his father was insecure, avoidant and disorganizing. The doctor observed no significant and positive psychological bond between the two, and consequently there was a low risk of the child suffering severe and enduring psychological or emotional harm if the relationship were permanently ended. Dr. Lee opined the most supportive permanency plan for the younger son was a permanency plan other than reunification with defendant.

The older son and younger daughter had reactions to being in defendant's presence similar to the reactions of their other two siblings. Two-thirds of the way through the session between defendant and the older son, Dr. Lee took the child out of the room. The child said he felt okay being away from his father and wanted to continue to live where he was currently residing with his siblings.

Defendant's younger daughter had little "spontaneous engagement" with him. At times she went out of her way to attempt to prove what the father said he believed about her was wrong. The child made very poor eye contact with defendant, initiated little conversation with him, and seemed to have a sarcastic tone in her comments. At one point when defendant asked his younger daughter if she would want to come and live with him, she said she would think about it.

When Dr. Lee went out of the room with the younger daughter, she said she was okay being away from defendant and would rather stay where she was currently living. Like he had with the first two siblings, Dr. Lee concluded as to the oldest son and younger daughter, their relationship with defendant was distant, avoidant, and insecure; they had no positive psychological bond; there was a low risk of the children suffering severe and enduring psychological or emotional harm if their relationships with defendant were permanently ended; and the most supportive permanency plan was "some type of permanency planning other than reunification with [defendant]."

Defendant testified that when the children's mother left, his niece resided with him. She cleaned the house and bathed the children while he worked, usually sixty-five hours each week. Later, he and the children moved in with their maternal grandmother, though his relationship with her was "bad." After the Division became involved with defendant, he was offered services. He "was sent twice for alcohol and once for parenting." According to defendant, he completed the alcohol treatment both times at a treatment facility. He may have missed one or two parenting classes.

When defendant was arrested, he gave the Division the names of the children's godparents as possible resource placements. They were willing to care for the children in his absence. According to defendant, the Division did not look into the children's godparents for placement of the children. During cross-examination, defendant admitted that, on release from jail, he was staying with the children's godparents and their children, even though the conditions of his parole or release prohibited him from doing so.

In an oral opinion delivered from the bench on September 22, 2014, the trial judge, Peter E. Warshaw, in a thorough and cogent oral opinion, found the Division had clearly and convincingly proved defendant's parental rights should be terminated. Judge Warshaw comprehensively recounted the facts developed through the parties' proofs, extensively reviewed the statutory and case law concerning termination of parental rights, made findings of fact, then analyzed those facts under the applicable legal principles. In doing so, Judge Warshaw found the Division's expert to be "a highly credible witness[,]" testifying "in an extremely persuasive manner, both on direct examination an[d] during cross-examination."

Judge Warshaw found defendant had endangered the children's safety, health and development. The judge cited defendant's admission to a sexual contact of some nature with his older daughter. The judge also referenced the testimony that clearly established: the children are scared of defendant, they do not want to visit with him let alone live with him, defendant's personality renders him incapable of parenting; the children's fear "cannot be ameliorated through services or treatment"; and "the defendant is not fit, and he cannot become fit within time to assume a parental role necessary to satisfy the needs of the children." In short, the judge was "absolutely satisfied by clear and convincing evidence that the safety, health or development of each of the four children has been endangered by the parental relationship." The judge was "equally satisfied that the safety, health or development of each of the four children would continue to be endangered if the parental relationship continued."

Next, the judge concluded that Division had proved by clear and convincing evidence defendant "is unwilling or unable to eliminate the harm facing the children, or is unable or unwilling to provide a safe and stable home for the children, and the delay of permanent placement will add to the harm." In so finding, Judge Warshaw reiterated his findings relative to the harm defendant caused his children, particularly the conclusion defendant had "done serious and lasting psychological and emotional harm."

Determining defendant's relationship with his children was "shattered," Judge Warshaw concluded "without any reservation at all that . . . defendant cannot and will not eliminate the harm facing the children." The judge pointed out the children remained scared of defendant due to this past conduct, defendant had completed no services in more than two years, and the services he completed in his distant past had not been effective. Significantly, Judge Warshaw also found defendant had made no genuine or sincere effort to address or overcome the causes of the removal, a situation exacerbated "by the defendant's lack of sound and reasonable judgment and his inability to focus on parenting." Due to the extent of defendant's "issues," the judge determined resolution of those issues could not be accomplished expeditiously, the process would likely take substantial time, and in the judge's view, the process "would be highly unlikely to succeed." Significantly, the judge concluded "that palpable fear that the children have of . . . defendant can't be alleviated let alone eliminated, and we can't wait for those issues to be addressed." For all of those reasons, Judge Warshaw concluded defendant "cannot or will not provide a safe and stable home for the children."

The judge also found the Division had made reasonable efforts to provide services to help defendant correct the circumstances which led to his children's placement. Additionally, the judge had considered alternatives to termination of parental rights. Judge Warshaw noted that following defendant's arrest in April 2012, he was prohibited from seeing the children until he underwent a psychological examination. The judge cited the numerous orders requiring the evaluation as well as other services if they could be provided at the jail. The judge noted that part of the delay was occasioned by defendant's invoking a constitutional right, but concluded the Division had made reasonable efforts to arrange for the services. The judge further noted defendant had done little to help himself or increase or enhance his parenting skills, or improve himself so that he could do a better job as a parent. The judge pointed out that the services defendant participated in before his arrest in April 2012 "appear to have been of limited benefit to him." In short, Judge Warshaw found "defendant's response and initiative concerning [the Division's efforts] was lacking."

The judge also noted that, "[i]n the end there was not [an] adult relative caretaker who agreed to raise the children to adulthood." Consequently, kinship legal guardianship was not an option. The judge also found the Division had satisfied its obligation to search for relatives. Unfortunately, relatives identified as possible resource parents were ultimately either unwilling or unable to assume care of the children.

Finally, Judge Warshaw concluded the Division had clearly and convincingly proved that termination of defendant's parental rights would not do more harm than good. In that regard, the judge found entirely credible "the professional opinion of a highly qualified expert," namely, Dr. Lee. The judge concluded from the doctor's testimony the children had no bond with defendant, and wanted no bond with defendant. In other words, there would be no appreciable harm if defendant's parental relationship with the children was severed.

The judge entered a memorializing order from which defendant has appealed.

II.

Our scope of review is limited. Family courts deciding the profound issues involving the welfare of children have special expertise and "appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). We give particular regard to the family judge's "opportunity to make first-hand credibility judgments about the witnesses who appear on the stand" and his or her "feel of the case." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). We will not disturb a Family Part judge's findings of fact and conclusions of law unless we are "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Nevertheless, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

It is firmly established that "[p]arents have a constitutionally protected right to maintain a relationship with their children." M.M., supra, 189 N.J. at 279. Nonetheless, that right is not absolute and "must be balanced against the State's parens patriae responsibility to protect the welfare of children." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting M.M., supra, 189 N.J. at 294). In some cases, termination of a parent's right to raise a child may be necessary to protect the child. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).

The criteria for terminating parental rights and committing a child or children to the guardianship of the Division are contained in N.J.S.A.30:4C-15.1(a)

(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 [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.

The Division has the burden of proving the statutory criteria by clear and convincing evidence. A.W., supra, 103 N.J.at 612.

We affirm the guardianship judgment, substantially for the reasons given by Judge Warshaw in his oral opinion. Judge Warshaw carefully reviewed the Division's evidence and concluded the Division satisfied, by clear and convincing evidence, all of the legal requirements for guardianship judgment. The judge's opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a), satisfies the standards established by In re Guardianship of K.H.O., 161 N.J. 337, 346-49 (1999), In re Guardianship of D.M.H., 161 N.J. 365, 378-84 (1999), and A.W., supra, 103 N.J. at 599-611, and is supported by the record, In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002).

We have considered defendant's arguments, which are based on a selective view of the evidence and a disagreement with the judge's findings of fact. The judge's findings, however, are supported entirely by the evidence. Defendant's arguments warrant no further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Defendant believed the children's mother ran off with another man. Despite its efforts, the Division has been unable to locate the mother. After leaving, she made no known attempts to contact either defendant or the children.

2 The record is unclear as to whether the condition was imposed as a condition of bail, probation, or parole. All three are mentioned.

3 There is a discrepancy in the record concerning the length of defendant's incarceration after the Division discovered he was residing in a house with minors in January 2013. According to a caseworker's testimony at the guardianship trial, he was incarcerated for another five or six months. According to a contact sheet dated February 26, 2013, a caseworker contacted defendant on February 5, 2013, but defendant refused to give the worker his address in Lawrenceville.