DIVISION OF YOUTH et al. v. K.L.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4156-04T44156-04T4

DIVISION OF YOUTH and

FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.L.,

Defendant-Appellant.

_______________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF P.M.B., a minor.

_______________________________________

 

Submitted October 3, 2005 - Decided

Before Judges A. A. Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-61-03.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General of New Jersey, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Scott J. Kieserman, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for respondent P.M.B. (Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant K.L. appeals from an order entered February 22, 2005 terminating his parental rights to P.M.B. and awarding custody and control of the child to plaintiff Division of Youth and Family Services. We affirm.

I.

We briefly summarize the evidence presented at trial. P.M.B. was born on November 5, 1998. Her birth mother is L.B. and defendant is her biological father. On September 1, 1999, the Division received an anonymous call and was informed that L.B., who was then fifteen years of age, had abandoned her ten-month old child P.M.B. at the home of a friend. The Division was told that the child had a fever and a very bad diaper rash. After an investigation, the Division substantiated neglect and effected an emergency removal of the child, who was placed in foster care. On May 24, 2000, the court determined that P.M.B. had been abused and neglected by L.B. and awarded custody of the child to the Division. On November 14, 2000, P.M.B. was placed with defendant, who was living at the time in an apartment with his girlfriend, T.T. Defendant was then 22 years old.

On March 15, 2001, the Division was informed that P.M.B. had burn marks all over her body and belt marks on her chest. The individual who reported this information to the Division asserted that the child had been beaten by her "step mother." A Division caseworker went to the home and observed burn marks on the child's left foot, left leg, buttocks and right arm but saw no bruises or belt marks on the child's body. The caseworker spoke with defendant, who stated that P.M.B. stepped into a bucket of cleaning solution that splashed on her. Defendant also said that he had taken the child to a doctor and he was applying medication to the burns.

The Division received another referral on April 5, 2001 from P.M.B.'s babysitter who informed the Division that she found the child hanging from a hook on a door in the apartment, with her hands tied together. The babysitter also reported that she had seen defendant often slap the child in the face. She said that P.M.B. had a "loop-type" mark on her chest where defendant hit her with a belt.

A Division caseworker, Gwendolyn Armstrong, testified that after receiving the referral, she went to defendant's apartment. Defendant and T.T. were present. T.T.'s mother also was in the apartment with two other children. Armstrong said that she observed bruising on the child. Armstrong questioned defendant about the child's injuries. He said that P.M.B. accidentally ran into a bucket of bleach. Defendant also claimed that P.M.B. had the bruise on her chest when she was placed with him by the Division's Ocean County office.

Armstrong said that she checked with caseworker previously assigned to the file and there was no record of any bruises of the sort that Armstrong observed in his visit to defendant's apartment. Armstrong also testified that, when she was interviewing defendant, T.T. and her mother were standing behind defendant. Armstrong said that when defendant was providing his explanation for the child's injuries, T.T. was shaking her head, gesturing "No." She gave Armstrong hand gestures indicating that defendant had in fact physically abused P.M.B. With her gestures, T.T. conveyed to Armstrong that defendant was lying.

Armstrong told defendant that he and P.M.B. had to accompany her to the Division's offices. There, defendant signed a form consenting to P.M.B's placement in foster care. In his conversation with Armstrong, defendant stated that he was not even sure that he was P.M.B.'s father. However, Armstrong testified that a paternity test showed that defendant was indeed P.M.B.'s biological father.

On May 2, 2001, P.M.B. was examined at the Dorothy B. Hersh Regional Child Protection Center. In a report concerning the examination, Dr. Gladibel Mercado stated:

The injuries [P.M.B.] has on her body as seen on the pictures and physical examination are highly worrisome for inflicted type injuries, even though an accidental injury to cause the burns as explained by the father cannot be totally ruled out as a possible mechanism.

* * *

The "loop-like" mark on the chest could have been caused by being hit with a thin belt, cord or cable. The allegations documented [by the Division] are very concerning.

Dr. Mercado stated that "foster care is the best place" for the child at this time.

At trial, Dr. Margaret Beekman testified that she had performed a comprehensive evaluation of defendant and P.M.B. in 2003. When she met defendant, he was dressed neatly and was polite. Beekman said defendant's affect was flat and his manner seemed odd and stilted. Defendant told Beekman that he was an adopted child and he wanted P.M.B. to avoid that experience.

Defendant denied that he would use a belt or similar implement to discipline the child and defendant insisted that the belt mark that the Division found on the child was there when she came to his home. Beekman testified that she administered the Child Abuse Potential Inventory to provide information about risk factors for abuse. She found that the overall abuse scale was not significantly elevated. Beekman said, however, that there was an elevation in defendant's "rigidity sub-scale" which was of concern because this factor indicates a tendency to express rigid beliefs as to behavior and appearance through force.

Dr. Beekman further testified that defendant would not be a good candidate to parent P.M.B. She opined that defendant showed chronic problems maintaining employment and a stable living situation. He displayed poor insight. He had a tendency to be rigid and inflexible in his approach to problems, and a tendency to be rigid and inflexible in his approach to problems. The doctor stated, "In addition, of concern to me were the rigid attitudes regarding the behavior of the children, with a tendency to express these rigid beliefs through force to get a child to follow a rigid framework."

Dr. Beekman also conducted a bonding evaluation of defendant and P.M.B. on April 7, 2003. She noted that P.M.B. seemed distant to defendant. She denied that P.M.B. recognized defendant. P.M.B. sat at the play table and did not make eye contact with defendant. Defendant tried to interact with P.M.B. and he asked about her dolls. Beekman asserted that defendant was "basically appropriate" with the child but P.M.B. did not initiate contact with him and she did not smile. Rather, P.M.B. seemed very serious. P.M.B. warmed up to defendant but Beekman opined that "it was unlikely at that time that [P.M.B.] saw [defendant] as anything other than an pleasant adult playmate." Beekman added that, in her view, defendant's care of P.M.B. had been "questionable at best." The child was removed from his care due to substantiated physical abuse. She said that it was unlikely that defendant could provide the safe and secure environment that the child requires. She again noted his reported dishonesty, his excessive use of denial, his rationalization, lack of insight into the effect of his behavior on others, the problem with managing responsibility, and the lackadaisical approach to maintaining a safe environment for a child. Beekman asserted that, in her opinion, the prognosis that defendant would be able to safely care for P.M.B. was poor.

Dr. Rachel Modiano also testified. Modiano evaluated defendant in July 2004. She interviewed defendant and undertook an assessment with respect to personality, emotional functioning, parenting beliefs, attitudes and such matters. Modiano said that, in her interview, defendant admitted that he may have hit P.M.B. once or twice. He said that initially he used to spank her with his hand. Defendant then admitted that he may have spanked P.M.B. with a belt two times. He insisted, however, that he was not a monster or a maniac. Modiano noted that the child was about two years old at the time.

Defendant explained to Modiano that, in his parenting classes, he had learned the so-called "1-2-3" technique, whereby the child is given a count of three in which to behave. Modiano asked what defendant would do if the child got to "3" and still had not complied with a particular request. Defendant replied that after "3," he "might use the switch."

Modiano opined that defendant was not ready to assume custody of P.M.B. at the time of her evaluation. She stated that the nature of the attachment between P.M.B. and defendant was "somewhat distant." Defendant was separated from the child for about two years and father and child did not have a particularly strong bond. Moreover, Modiano said that defendant used physical discipline in the past and there was a "somewhat concerning belief" that he would again resort to physical abuse to discipline the child. Modiano concluded that defendant was not in a position to safely and capably care for P.M.B.

Amy Kavanaugh was called as an expert in the field of clinical psychology. Kavanaugh performed a bonding evaluation of defendant and P.M.B. In her view, P.M.B. had a "very distant and insecure attachment with her father." Kavanaugh noted that steps had been taken for defendant's reunification with P.M.B. Defendant started visitation with the child. A therapeutic visitation program had been set up to assist in reunification. As part of that program, defendant was to meet with a therapist so that she could give instruction. However, defendant was inconsistent in attending the visitation sessions and he did not schedule any individual sessions with the therapist.

Defendant testified as well. He stated that at the time of trial, he was living in a house in Bradley Beach with T.T. and three children. Defendant was working in a bowling alley as a pin setter technician and cook. T.T. had full time employment and they share the expenses of the home. Defendant and T.T. receive Section 8 rental assistance and food stamps. Defendant testified that he previously had a full time job in a retirement home but he was terminated because he had done a "poor job." Defendant additionally stated that he was starting school at Brookdale Community College and would be attending classes there two days a week. Defendant asserted that he plans to study psychology in a four-year program and he intends to pursue a career as a drug and alcoholic counselor.

Defendant also addressed the issue of P.M.B.'s chemical burns. He said it was an accident. Defendant admitted hitting P.M.B. with a belt when she was two years old. He said that he hit the child because "she did something wrong and I just had to discipline her." Defendant also discussed the "1-2-3" method of discipline and said he did not recall telling the psychologist that he would use a switch on the child if she did not behave. Defendant criticized the therapist who was involved in the therapeutic sessions. He said the therapist was just "sitting there taking notes." He blamed the therapist for failing to come to his home for one-on-one sessions. Defendant said that the therapist "just disappeared."

The judge rendered a decision from the bench. She found that the Division had established, by clear and convincing evidence, all of the factors necessary for the termination of parental rights. See New Jersey Div. of Youth and Family Services v. A.W., 103 N.J. 591, 604-10 (1986), now codified at N.J.S.A. 30:4C-15.1(a). The judge therefore entered judgment terminating defendant's parental rights to P.M.B. This appeal followed.

II.

Defendant first argues that the Division failed to establish by clear and convincing evidence all of the factors enumerated in N.J.S.A. 30:4C-15.1(a) that are required for termination of his parental rights. We disagree.

The scope of our review in a non-jury case is limited. We will not disturb the trial judge's findings of fact unless "they are so wholly unsupportable as to result in a denial of justice." New Jersey DYFS v. P.P., 180 N.J. 494, 511 (2004)(quoting In re Guardianship of J.N.H., 1 729 N.J. 440, 472 (2002)). The judge's findings are binding on appeal when they are supported by adequate, substantial and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J 474, 484 (1974). We are satisfied that the judge's findings of fact are fully supported by substantial credible evidence in the record. We accordingly affirm the judgment substantially for the reasons stated by the judge in her thorough and comprehensive oral decision placed on the record February 22, 2004. We add the following.

We are convinced that the judge correctly found that there was clear and convincing evidence that P.M.B.'s health and development has been endangered by her relationship with defendant. N.J.S.A. 30:4C-15.1(a)(1); A.W., supra, 103 N.J. at 604. On this issue, the trial judge made the following critical findings of fact:

I believe, and I have to tell you...that, you know, I think it's fine that you are here now, and that you've been here for a while attempting to have this child come back to live with you. But I believe that you did, in fact, abuse this child. I believe and I so find that you're the person who hung her on the door of the bathroom and tied her hands with a video cable.

And I further believe that you did, indeed, hit her with a strap so that there was a loop mark on her. I further believe that you were responsible for failing to put away dangerous material. And I make no finding as to whether or not there was any intentional burning of her, but it could very well have been accidental. And apparently there was a doctor who indicated that your explanation was one that could be reasonable under the circumstances.

But nevertheless, while she was in your control and in your care, and in the care of you and your girlfriend, this child suffered substantial physical abuse. And we now are in a position where you are, once again, living with [T.T.].

The judge's findings have clear support in the record. The fact that P.M.B. was burned by some chemical solution was not disputed. The judge properly found that defendant's failure to protect the young child from this dangerous material was evidence of neglect. In addition, although defendant denied that he hung P.M.B. on a hook with her hands bound, the judge found his statements to be wholly lacking in credibility. This finding was based in part by the judge's own observation of defendant's testimony at trial, but also by other evidence which established that K.L. had physically abused the child. Indeed, defendant admitted striking the child once or twice with a belt. The judge's conclusion that P.M.B. was harmed by her relationship with defendant is unassailable.

The evidence also supports the judge's finding that the Division had shown, by clear and convincing evidence, that defendant is unwilling or unable to eliminate the harm to P.M.B. N.J.S.A. 30:4C-15.1(a)(2); A.W., supra, 103 N.J. at 606. Defendant testified at trial that he was now capable of providing a safe and stable home for the child but the judge found these assertions to be unworthy of belief. She said in her decision:

I'm not satisfied that this is a safe and stable home. You went to parenting skills, yes. But you never completed or fully participated in the therapeutic counseling that you were supposed to have. And I firmly believe that you still believe that under certain circumstances corporal punishment is still available to you in order to chastise a child in your home.

Indeed, the evidence established that defendant either failed to complete and participate in programs that were designed to alter his outlook on child rearing.

As we pointed out previously, defendant was instructed in the "1-2-3" method of discipline. Even so, he told Dr. Modiano that he still might resort to the "switch" if the child did not behave. Moreover, Dr. Beekman noted defendant's tendency to rigidity, a personality trait that makes him more likely to use force to impose his views upon a child in his care. Beekman said that it was unlikely that defendant could provide a safe and secure environment for P.M.B. Modiano also opined defendant was not in a position to safely and capably care for P.M.B. In our view, the record provides clear and convincing evidence that defendant was unwilling or unable to eliminate the harm to P.M.B.

We are additionally convinced that the record supports the judge's finding that the Division offered and provided services to assist defendant to overcome the causes that led to P.M.B.'s placement in foster care. N.J.S.A. 30:4C-15.1(a)(3); A.W., supra, 103 N.J. at 610. Here, the Division provided supervised visitation, parenting programs, home visits, referrals for welfare assistance, psychological counseling and evaluations. Again, we note defendant's failure to avail himself of the opportunities at therapeutic programs designed specifically to address the deficiencies in his parenting skills. The Division also explored placement of the child with relatives but none were available.

Finally, we are satisfied that there was clear and convincing evidence to support the judge's finding that termination of defendant's parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4); A.W., supra, 103 N.J. at 610. Dr. Beekman testified that a substantial bond was lacking between P.M.B. and her father. Dr. Modiano testified that the bond between defendant and his daughter was not particularly strong. And while P.M.B.'s foster mother would not commit to adoption, the judge found that the Division's plan, which envisions P.M.B.'s eventual adoption and her continued placement in her foster home pending such adoption, to be in the child's best interests. The trial judge correctly found that this plan is far preferable to continuing the relationship with defendant, a relationship that was marked by instability and physical abuse.

III.

We turn next to defendant's contention that he was denied the effective assistance of counsel in the termination proceedings. He asserts that trial counsel was ineffective because he failed to cross-examine four witnesses: Gwendolyn Armstrong, Andrea Stokes, Aubrey Lutz and Dr. Kavanaugh. Armstrong, Stokes and Lutz are Division caseworkers. Defendant also contends that his counsel did nothing to counter the testimony and opinions of the experts presented by the Division and the Law Guardian.

In order to establish a denial of the effective assistance of counsel, defendant must show that counsel's performance was deficient and also must show that the deficient performance prejudiced the defense. State v. Fritz, 105 N.J. 42, 52 (1987)(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). The attorney's errors must be shown to have been so egregious that defendant was effectively denied his or her right to counsel under the Sixth Amendment to the United States Constitution. Ibid. In addition, defendant must show that, because of the errors of the attorney, defendant was denied his right to a fair trial. Ibid.

Thus, an ineffective assistance of counsel claim is derived from the right to counsel protected by the Sixth Amendment. However, that constitutional guarantee only applies in criminal proceedings. In re Civil Commitment of D.L., 351 N.J. Super. 77, 87 (App. Div. 2002). A proceeding for the termination of parental rights is a civil action. Div. of Youth and Family Services v. M.Y.J.P., 360 N.J. Super. 426, 467 (App. Div.), certif. denied, 177 N.J. 575 (2003) cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004).

Even so, defendant had a right to counsel in the proceeding seeking the termination of his parental rights. Div. of Youth and Family Services v. E.B., 264 N.J. Super. 1,6 (App. Div. 1993), aff'd, 137 N.J. 180 (1994). Nonetheless, we are not convinced that defendant received ineffective assistance of counsel at trial. Defendant asserts that his trial attorney failed to cross-examine certain witnesses but fails to point out what questions should have been asked. More important, there is no indication that any cross-examination of these four witnesses would have made the testimony less persuasive to the trial judge. We are not convinced that the failure to cross-examine the witnesses was error, let alone the kind of egregious professional mistake that would constitute the ineffective assistance of counsel.

Defendant also contends that his counsel presented nothing to counter the testimony of the experts presented bay the Division and the Law Guardian. Dr. Beekman opined that it was unlikely defendant could provide a safe and secure environment for P.M.B., and Dr. Modiano stated that defendant was not in a position to safely and capably care for the child. Defendant has not produced a report which counters these conclusions. We cannot speculate that some expert's testimony might have led to a different result in this case.

 
Affirmed.

The judgment at issue here also provides for the termination of L.B.'s parental rights to P.M.B. The judge found that L.B. had essentially abandoned the child. L.B. has not appealed from the order.

(continued)

(continued)

17

A-4156-04T4

RECORD IMPOUNDED

October 14, 2005