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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4267-04T44267-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.R.,

Defendant,

and

F.R., Jr.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF R.R. and A.R.,

Minors.

 

Submitted: February 1, 2006 - Decided February 28, 2006

Before Judges Stern, Fall and Grall

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket Number FG-02-0084-04.

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

Zulima V. Farber, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jane S. Blank, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for the minor children R.R. and A.R. (Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this guardianship case, defendant F.R., Sr. appeals from a judgment entered on April 1, 2005, terminating his parental rights to his son R.R., born on April 20, 1999, and to his daughter A.R., born on February 29, 2000, and placing those children in the care and guardianship of the New Jersey Division of Youth and Family Services ("DYFS" or "Division") for all purposes, including placement for adoption. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

Defendant D.R. is the biological mother of R.R. and A.R. On March 21, 2005, during trial, D.R. voluntarily surrendered her parental rights to these two children. F.R., Sr. and D.R. are also the biological parents of five other children: T.H., A.R., K.R., Z.R., and F.R., Jr., all of whom are residing with their maternal grandparents.

The Division has been involved with this family since 1986, and has investigated approximately twenty-one referrals. A review of this history is relevant. There have been numerous allegations of domestic abuse between D.R. and F.R., Sr., many of which occurred in front of the children. On August 8, 1997, the Division responded to a domestic violence incident between D.R. and an unidentified male who was allegedly beating her. D.R., her children Z.R. and F.R., Jr., and the perpetrator were taken to the police station.

On July 12, 1998, the Division received a referral that the police had responded to a domestic violence incident at the home of defendants. Upon responding, D.R. was found bleeding from the mouth and had blood on her face, hand and shirt. The police reported that F.R., Sr. was extremely intoxicated and that the apartment was filthy and in terrible disarray.

On April 28, 1999, DYFS received a referral indicating that Z.R., an older sibling, had intervened in a fight between D.R. and F.R., Sr. This alleged domestic violence occurred eight days after the birth of R.R. F.R., Jr., Z.R.'s brother, evidently reported this fight to his teacher and had requested her to "call DYFS" and have his father removed from the home. Z.R. also alleged that he had witnessed physical and verbal abuse between D.R. and F.R., Sr.

F.R., Sr. has a lengthy record of criminal convictions and is currently incarcerated. On March 23, 1998, he pled guilty to third-degree possession of a controlled dangerous substance, Bergen County Indictment Number 97-05-0846, and was sentenced on May 22, 1998 to a three-year period of probation. On February 18, 2000, he was convicted of a violation of that probation and was sentenced to flat four-year term of imprisonment. On May 5, 2000, F.R., Sr. pled guilty to a charge of first-degree armed robbery in Bergen County Indictment Number 99-02-0388; to another charge of first-degree robbery, in Bergen County Indictment Number 99-08-1539; and to third-degree aggravated assault, in Bergen County Indictment Number 00-04-0655. On October 20, 2000, F.R., Sr. was sentenced on those convictions to an aggregate ten-year term of imprisonment, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On November 23, 1999, the Division received a referral that D.R. was going to be arrested for passing a bad check to an attorney she had hired for F.R., Sr.'s defense concerning the criminal charges. D.R. informed the investigating DYFS worker that she needed one thousand dollars to pay the attorney, or she would be arrested.

The Division has also received many allegations of abuse and neglect of the children by D.R. On March 23, 2000, DYFS received a referral alleging that F.R., Jr. had been physically abused by D.R. Beginning in November 1999, F.R., Jr. was seen with scratches about his eyes, black eyes, bruises on his face, head and arms, and scrapes on his face. F.R., Jr. alleged that his mother had hit him and caused these injuries; however, D.R. claimed that the child had fallen. Upon investigating, the Division was unable to find any bruises on F.R., Jr. and closed the case.

On March 27, 2002, the Division received a referral indicating that D.R. had been in the hospital since March 26, 2002, and had left her children in the overnight care of twelve and thirteen year-old babysitters. The referent, who knew the babysitters well, stated that those babysitters were irresponsible. The referent also stated that the child Z.R. had told her that he had seen someone in the house smoking crack cocaine.

The Division responded to the Roosevelt School and spoke with Z.R., who stated that his mother had walking pneumonia and that "C" and "K" were watching him and his siblings. The babysitters were the children of A.T., a friend of D.R. When asked about the crack cocaine, Z.R. stated that someone named "T" had been in the home and had been smoking something. While the Division worker was speaking with Z.R., D.R. called his school and advised the worker that she was checking out of the hospital against medical advice because she feared the Division was going to take away her children.

Directly thereafter, a DYFS worker went to the house of A.T. and found A.T., the children, and D.R. present. The Division worker informed D.R. that as long as the children were being watched by an adult, the Division would not have any concerns. D.R. assured the worker that only adults would watch the children while she was recuperating. On April 3, 2002, the Division closed the case.

On March 27, 2003, the Division received a referral alleging that D.R. had beaten her daughter A.R. It was also alleged that D.R. had beaten R.R. with a belt, and had told them she was going to call DYFS to take them away.

On March 28, 2003, a Division worker responded to A.R.'s school in order to conduct an interview. A.R. stated that she had gone to visit D.R. the previous weekend and that D.R. had hit her on the leg with a belt. The worker was unable to find any evidence of abuse.

The DYFS worker then met with the child Z.R., and noted that he was dirty and had dirt under his fingernails. He appeared not to have been bathed.

The worker also spoke with the child K.R., who stated that she was living with her maternal grandmother and her siblings, T.H. and B.R. K.R. informed the Division that she was never visiting her mother again because her mother yelled at her, smoked pot, and had hit F.R., Jr.

The DYFS worker met with F.R., Jr., and noted that he was dirty. F.R., Jr. stated that he had to sleep on the living room floor, that his mother slapped him on his back, and that he was afraid of his mother.

The worker then met with D.R. at her home. D.R. refused to allow the worker to speak with R.R. and A.R. because "they were under the age of five." The worker noted that R.R. was dirty, the home was dirty, and there was no food in the house. D.R. was opening and slamming shut all the cabinets in the kitchen; she was instructed to stop this behavior or the police would be called. D.R. became extremely agitated and outraged and blamed her friend and roommate, S.L., for calling the Division. D.R. ran into the kitchen, grabbed what looked like a long screwdriver, and plunged it into the door of S.L.'s room.

D.R. admitted to hitting the children with her open hand, but stated she never left any marks or bruises. She stated that she did not use drugs or alcohol and that she would submit to a urine screen, but that she would not do so through DYFS because she "did not trust [them]." D.R. stated that she had already completed parenting classes and the Alternatives to Domestic Violence program, and that she would not participate in such classes again.

Also on March 28, 2003, another Division worker spoke with D.R.'s roommate, S.L., who reported that A.R. had dental problems and refused to eat because her teeth hurt too much. S.L. claimed that D.R. had refused to take A.R. to the dentist. S.L. stated that when A.R. was sick, and had choked in the bathroom and then vomited on herself, D.R. refused to take A.R. to the doctor.

S.L. also alleged that she had observed D.R. viciously beat F.R., Jr., about the head. S.L. stated that D.R. would give Z.R.'s medication to R.R. to make him sleep. S.L. also reported that D.R. smoked pot and drank alcohol, was verbally and physically abusive to the children, and regularly threatened the children with DYFS. S.L. stated that when D.R. was unable to deal with the children, she would push, pull, fling or shove them into S.L.'s bedroom.

The Division worker then went to the home of G.H., D.R.'s mother. G.H. refused to allow the Division worker to see the children or even enter the home.

The Division returned to D.R.'s apartment on March 28, 2003, accompanied by the police, and effected an emergency removal of the children from D.R.'s care pursuant to the provisions of N.J.S.A. 9:6-8.29. R.R., age three at the time, stated, "Mommy beats the shit out of me," and the child repeatedly cursed at the Division worker. F.R., Jr., informed the worker that he watched "sexy movies." Z.R., F.R., Jr., R.R., and A.R. were placed in foster care.

On March 31, 2003, pursuant to N.J.S.A. 9:6-30 and N.J.S.A. 30:4C-12, the Division filed a verified child abuse and neglect complaint against D.R. and F.R., Sr. in the Family Part, Docket No. FN-02-128-03, seeking an order granting care and custody of the children to the Division. The court issued an order on March 31, 2003, temporarily placing the children in the custody of DYFS, and directed D.R. and F.R., Sr. to show cause on April 17, 2003, why the children should not remain in the custody and care of the Division. Supervised visitation for D.R. and F.R., Sr. was ordered, and legal representation for both parents and the children was arranged.

On April 2, 2003, the Division referred D.R. to the American Red Cross for parenting classes.

On April 17, 2003, a hearing was held in the Family Part. D.R. and G.H. appeared; F.R., Sr. was unable to appear because he was incarcerated. The court ordered that legal and physical custody of T.H., Al.R., and K.R. remain with G.H., their maternal grandmother. Legal and physical custody of Z.R., F.R., Jr., R.R. and A.R. remained with the Division. D.R. was also ordered to attend both a psychological evaluation and a substance abuse evaluation, and to submit to random urine screenings.

On April 29, 2003, a Division worker sent a letter to T.R. inquiring whether she was interested in becoming a caretaker for Z.R., F.R., Jr., R.R., or A.R., and instructing her to contact the Division by May 13, 2003 if she was so interested. Another letter was sent by the Division to T.R. on June 2, 2003. T.R. responded on June 13, 2003, and an appointment for her was scheduled for June 17, 2003. T.R. failed to keep the appointment, and called a Division supervisor, Dolores Kenally, on June 26, 2003, to apologize for missing her appointment. T.R. provided DYFS a telephone number where her father, V.R., the children's paternal grandfather, could be reached; however, DYFS was never able to reach him at that number. Although there was no record in any of the files of the various DYFS caseworkers that T.R. had contacted the Division thereafter, at trial, T.R. claimed that she had made at least six attempts to contact the Division after she had missed her appointment.

On May 15, 2003, a hearing was held in the Family Part. D.R. and F.R., Sr. appeared, and it was ordered that Z.R., F.R., Jr., R.R., and A.R. remain in the legal and physical custody of DYFS. D.R. was again ordered to attend a psychological evaluation and to submit to random urine screenings. On the same day, D.R. submitted to a urine screening which was negative for all substances.

On May 23, 2003, the Division received a letter from R.R. and A.R.'s foster mother regarding allegations of abuse. She stated that both children displayed fear of belts and had stated that their mother D.R. would hit them with a belt. The children had also graphically described sexual acts to their foster mother, and illustrated those acts when they played with dolls.

On June 4 and 26, 2003, A.R. participated in a Psychosocial Team Evaluation performed by psychologist Paula N. Iudica at the Northern Regional Diagnostic Center for Child Abuse and Neglect, Audrey Hepburn Children's House, within the Hackensack University Medical Center. During the evaluation, A.R. disclosed physical abuse by her mother, who she claimed had struck her with a red belt on her head and back. A.R. also stated that her mother would sometimes leave her alone.

A.R. claimed that her brother F.R., Jr. had engaged her in sexual behavior that consisted of penile-vaginal contact. A.R. stated that F.R., Jr. had "pee-peed in [her] prive," which Dr. Iudica stated indicated the possibility that penetration had occurred. A.R. denied the possibility of sexual abuse from anyone else, including her brother R.R.

Dr. Iudica and the evaluation team recommended that A.R. attend individual psychotherapy to address issues of neglect and inappropriate exposure to sexual material. The team also recommended that the therapy should assist A.R. in adopting self-protective knowledge and behavior, as well as impulse control.

On June 4 and 26, 2003, R.R. participated in a Psychosocial Team Evaluation performed by Dr. Miller James, a psychologist at the Audrey Hepburn Children's House who was also part of same evaluation team. During his interview, R.R. stated that he "had sex with mommy D.R." R.R. was unable to provide further detail verbally. However, Dr. Miller and the team concluded that R.R.'s non-verbal behavior excessive masturbation, even when in public and when told to stop, high level of aggression, and obvious developmental delay supported the conclusion that R.R.'s disclosure had been truthful. R.R. also described incidents where he was "tied up."

The evaluation team found that R.R. demonstrated deficits in self-recognition, cognitive and language ability, and lacked social skills. The team concluded that these deficits were consistent with the documented record of neglect, exposure to parental substance abuse, domestic violence, poor role-modeling, and sexual abuse. The team stated that R.R. had multiple deficits and would require significant psychotherapeutic attention, and that he should be placed permanently in a safe, stable and therapeutic environment.

At a review hearing conducted on July 24, 2003, the court continued custody of the children with the Division, and directed additional evaluations of the children and D.R. At his request, F.R., Sr. was excused from further proceedings and the Division was excused from providing any services to him. Supervised visitation sessions for D.R. were continued. However, D.R.'s visits with the children were sporadic thereafter, and the agency conducting the sessions recommended termination of supervised visitation by letter dated October 14, 2003.

A psychological evaluation of D.R. was performed by Dr. Kenneth M. Schulman on June 18, 2003, and he issued a report of that evaluation and his findings on September 5, 2003. Dr. Schulman concluded that D.R. exhibited significant psychological difficulties consistent with an Axis II diagnosis of a Narcissistic Personality Disorder. He recommended individual psychotherapy, a substance abuse assessment, and a reevaluation in six months. Dr. Schulman stated that D.R. "is not presently able to exercise an appropriate parental role and is not likely to be capable of doing so in the foreseeable future."

On November 13, 2003, a hearing was held in the Family Part. D.R. appeared, and it was ordered that Z.R., R.R., and A.R. remain in the legal and physical custody of the Division; by that time, F.R., Jr. had been placed with his siblings T.H., Al.R. and K.R. in the home of G.H. D.R. was again ordered to submit to substance abuse evaluation random urine screenings, attend counseling at the Audrey Hepburn Children's House, and attend parenting classes.

A compliance review hearing was conducted in the Family Part on February 26, 2004. The court ordered substance abuse evaluation and treatment for D.R., as well as counseling, and bi-weekly supervised visitation sessions. The court also issued a permanency order, directing that due to the failure of D.R. to resolve the risk factors of her children; her inconsistency in compliance with the support services provided; the stability and progress of the children in foster care; and the continued incarceration of F.R., Sr., DYFS shall file a complaint seeking termination of the parental rights of D.R. and F.R., Sr. with respect to R.R. and A.R. within sixty days. By that time, Z.R. had also been placed in the home G.H.

On April 23, 2004, the Division filed a guardianship complaint against D.R. and F.R., Sr. in the Family Part, docketed as FG-02-84-04, seeking the termination of their parental rights, and placement of R.R. and A.R. in the guardianship, care and custody of DYFS for all purposes, including placement for adoption. An order was issued on that date directing D.R. and F.R., Sr. to show cause on June 4, 2004, why the relief requested in the complaint should not be granted. The complaint in FN-02-128-03, with respect to R.R. and A.R., was dismissed.

On June 4, 2004, the Family Part conducted a case management conference. The court ordered psychological and bonding evaluations.

A psychiatric examination of R.R. at the Audrey Hepburn Children's House by Dr. Ernst Christian Gauderer on June 30, 2004, diagnosed him as suffering from several disorders as a result of his exposure to severe neglect, abuse and trauma and concluded that his "[p]rognosis is fair due to the severity and chronicity of issues."

A case management order issued on July 30, 2004, ordered that D.R. attend the scheduled psychological, psychiatric and bonding evaluations

Dr. Robert Kanen, a psychologist, conducted a bonding evaluation between the foster mother and A.R. and R.R. on August 26, 2004, which consisted of an assessment of the interaction between the parties; how they relate to each other; whether there is positive interaction between them; and whether there's an attachment and bond between the parties. Regarding the relationship between the foster mother and the children, Dr. Kanen made the following findings:

During this evaluation, both children were able to engage in constructive play and then return to [the foster mother] for physical and emotional contact. The children respond positively to [her]. Both children are attached to [their foster mother] and call her "mommy." She was very firm with the children. She was warm and sensitive and teaches appropriate behavior. She is well-educated and equipped to take care of these children. These are two very challenging children with severe emotional and behavioral problems.

The children have separate rooms.

[A.R. and R.R.] are attached and bonded to [their foster mother]. The children have lived with her for approximately 17 months. She is interested in adopting these two children should they become available. The children refer to her as "mommy." [R.R.] shows evidence of severe emotional, behavioral and cognitive problems. He is currently taking Risperdal and Adderal Extended Release. At times he engages in psychotic-like behavior and is in poor contact with reality. [A.R.] feels the sexual behavior in the biological family was her fault. Both children go into severe distress after visits with the biological mother.

[The foster mother] is well-educated and equipped to take care of these two children. She is sensitive to their very serious problems and recognizes the challenges. [She] is capable of providing nurturing, protection, stability and guidance to these children. She is committed to raising these children.

The children are likely to suffer a grief and separation reaction if removed from [their foster mother].

During the time period between May 23, 2003 and March 21, 2005, the Division repeatedly attempted to have D.R. attend counseling sessions at the Audrey Hepburn Children's House and to begin to perform the regular and expected parental functions of care and support for A.R. and R.R. The record discloses that D.R. did not cooperate with the Division and the court in regard to attending the scheduled counseling sessions, nor with submitting to random urine screenings on a consistent basis. D.R. also failed to visit with her children on a consistent basis after visitation was switched to the Care Plus Supervised Visitation Program. D.R. did complete the court-ordered Red Cross parenting classes; however, she was extremely non-compliant and it took her several attempts.

On October 27, 2004, Dr. Kanen conducted a bonding evaluation of D.R.'s relationship with R.R. and A.R. In his report issued on that date, Dr. Kanen found that the children displayed "evidence of a severe attachment disorder in relation to [D.R.]" Specifically, Dr. Kanen noted that A.R. "moved away from [D.R.] and was in distress when reuniting with her. She avoided physical and emotional contact." Additionally, "[b]oth children were unable to engage in constructive activities while in the presence of the biological mother." Dr. Kanen concluded "that the children would not suffer serious and enduring harm if permanently removed from [D.R.]"

On that same date, Dr. Kanen performed a psychological evaluation of D.R., finding that she showed "evidence of severe personality problems[,]" was "extremely self-centered[,]" "has great difficulty controlling her rage and hostility[,]" and "is indifferent to the rights and needs of her children." Dr. Kanen concluded that returning A.R. and R.R. "to her care would expose the children to an unnecessary risk of harm."

Dr. Alberto M. Goldwaser, a psychiatrist, performed an evaluation of D.R. on September 10, 2004, and October 8, 2004. In his report dated November 14, 2004, Dr. Goldwaser concluded that D.R. did not have the capacity to care for children now or in the foreseeable future.

On February 7, 2005, Dr. Kanen performed a psychological evaluation of F.R., Sr. Dr. Kanen stated that testing of his intellectual capacity placed F.R., Sr. in the mild mental retardation range of intelligence, concluding, however, that "[d]ue to cultural differences, it is more likely that he is functioning in the low end of the Borderline range of intelligence." Dr. Kanen found that F.R., Sr. "demonstrates an aggressive and abusive manner. He can be extremely hostile." With respect to the children, Dr. Kanen stated that F.R., Sr. "showed no understanding that these children have any special needs. He is likely to be insensitive to their needs. He is not capable of providing them with a permanent home." Dr. Kanen concluded that F.R., Sr. "has severe parenting deficits and returning [R.R.] and [A.R.] to his care would expose the children to an unnecessary risk of harm."

The trial of the guardianship complaint was conducted in the Family Part on March 21, 2005 and March 22, 2005, before Judge Birger M. Sween.

At trial, Dr. Robert Kanen, Psy.D., testified in pertinent part:

[D.R.] has a longstanding severe personality disorder which is highly unlikely to change. She's extremely self-centered, manipulative, exploitative, impulsive, prone to poor judgment, has great difficulty controlling her anger. She's had an unstable lifestyle, she's not been able to provide a permanent, safe, secure home for the children. She does not recognize the [children's] special needs . . . [and] her lack of awareness of the children's special needs would make it very difficult for her to follow through on the care of these children when they need care. And my final conclusion was that returning [R.R.] and [A.R.] to her care would expose the children to an unnecessary risk of harm[.]

The demands of child care, even ordinary demands, could set her off into explosive outbursts. She would have difficulty protecting the children from harm. She would have difficulty providing a safe, secure and permanent home. She is unaware of the special needs of these children, so their needs would go unmet. And all of that contributes to my final opinion that returning the children to her care would expose them to unnecessary harm.

With respect to his evaluation of F.R., Sr., Dr. Kanen testified, in pertinent part:

The background information that's significant is that he has six children . . . [and] didn't know the year of birth of several of them . . . He has a history of severe alcohol abuse and violent behavior. He has a[n] extensive history of acting out impulsively, violently with poor judgment, that's why he's incarcerated. He told me he had been arrested at least ten times, several times on assault charges, several domestic violence charges, currently serving a ten-year sentence with a scheduled release date sometime in 2008[.]

[F.R., Sr.] has some cognitive limitations that would contribute to him having difficulty functioning effectively in daily life . . . He can be extremely hostile, he showed evidence of being prone to severe hostility, a mistrust of others. And, he reported a significant history of alcohol abuse beginning at the age of 16 -- and the alcohol abuse really loosens the control he has over his anger and he loses it[.] . . .

[F.R., Sr.] is currently incarcerated on an armed robbery conviction and so he's not scheduled to be released until 2008. So he can't parent the children until 2008. He shows severe parenting deficits due to long- standing personality problems and severe alcohol abuse with chronic fighting, impulsivity, poor judgment, [and] violence. Testing suggested a severe personality disorder with paranoid personality traits and aggressive/sadistic personality features, chronically angry, irritable and during bouts of heavy drinking would be potentially dangerous.

Dr. Kanen also testified that F.R., Sr., did not possess the characteristics needed to appropriately care for A.R. and R.R. He stated that due to his long history of serious personality problems, any child care demands would be met with severe irritability and hostility, and he would be at risk to act out against them. Dr. Kanen pointed out that the children do not know him as a father; thus, returning them to his care would be severely traumatizing and damaging to them.

Dr. Anthony V. D'Urso, the supervising psychologist at the Audrey Hepburn Children's House, also testified. Dr. D'Urso supervises the therapists that worked directly with A.R. and R.R. and helped them develop a consistent treatment plan for the family. He explained that the Audrey Hepburn Children's House began providing these children with therapeutic services in 2003. The Audrey Hepburn Children's House also attempted to provide services to D.R., as well; however, she was terminated from treatment due to non-compliance in therapy. With respect to the children, Dr. D'Urso testified in relevant part:

Both [R.R. and A.R.] had limited speech and communication [when they began at the Audrey Hepburn Children's House]. [R.R.] was acting in a very impulsive way. He would act in sexualized ways, he would ask people sexual questions, he would ask to be engaged with adults in sexual questions. Relative to [A.R.], she had talked about her brother [F.R., Jr.] sexually abusing her, she also made that allegation against her mother, she's given us information about sexual knowledge that was well beyond her years. She disclosed neglect. She would engage not necessarily in sexual behavior, but she would engage in oppositional behavior, she was difficult to manage, she had poor attachment with caregivers[.]

With regard to the progress the children have made with treatment, [R.R.] has become less impulsive, less aggressive, he's learned to contain his overt sexual questions. He used to engage in body gyrations that were highly sexualized. He's much more contained. He's in a therapeutic school at this point, and so the behavioral programs are more consistent for him and he's responded behaviorally.

[A.R.] is in a period where she's open and kind of connecting well. She's had some acting out behaviors in school which seem to have diminished over the last three months.

Louis Padierna, a Case Manager for the Division, testified regarding the availability and appropriateness of other relatives with whom the Division might have placed the children. Mr. Padierna evaluated the children's maternal grandparents, paternal aunt and paternal grandfather in order to determine whether they would be appropriate legal guardians for the children. Mr. Padierna stated that the maternal grandparents were not appropriate as caregivers for A.R. and R.R. because:

[N]umber one, the house was overcrowded. They had already give children with [F.R., Jr.] and [Z.R.], they had no space to put the children, [A.R. and R.R.] there was also concerns about [F.R., Jr.'s], sexualized behavior. There [were] allegations, previous allegations from [R.R.] that when they were living together [F.R., Jr.], had sexually abused him.

Mr. Padierna also testified that neither the paternal aunt nor the paternal grandfather were appropriate guardians for children, stating that the paternal aunt failed to keep an appointment with him, and that the paternal grandfather failed to respond to contact made with him.

Hymee Herrera, a case worker for the Division and the Northern Adoptive Resource Center, also testified at trial. Mr. Herrera discussed the availability and appropriateness of other relatives with whom the Division might have placed the children. He evaluated V.R., F.R., Sr.'s father. Mr. Herrera explained that V.R. lives with his wife and her three children in a two bedroom apartment. V.R. and his wife share one bedroom and the older daughter occupies the other bedroom. Two sons occupy an enclosed porch and sleep in one large bed. Mr. Herrera testified, in relevant part:

[T]o move the kids from the foster home . . . would be detrimental[.] . . . That was the big concern, [but] I also had my own concerns and the sleeping arrangement was one, [the other was that] these people don't speak English. [R.R.] and [A.R.] don't know Spanish and I don't see the Hispanic culture in them[.] . . . And also, when I expressed to [V.R.] that the kids need [special treatment] . . . they didn't seem to be aware of how serious this is. So . . . [V.R.'s wife], told me that they would love [the children], the kids will be fine and they had a lot of love.

On the first day of trial, following Dr. Kanen's testimony, D.R. testified and voluntarily surrendered her parental rights. F.R., Sr. also testified. He explained that he would not be eligible for parole until April 2, 2008. He stated that he was a changed man, and wanted the opportunity to parent his children. He further contended that members of his family were available to care for the children until his release from prison, and objected to the termination of his parental rights.

V.R., the paternal grandfather of the children, testified that he and his wife were willing to accept custody of the children. However, he stated that the last time he saw the children was between a year and half and two years ago. T.R., the paternal aunt of the children, also testified. She acknowledged receiving a letter from DYFS in April 2003, and that she missed an appointment with the DYFS case worker in June 2003. T.R. maintained that she sought another appointment, but when she was not contacted again by DYFS, she assumed the children were being returned to D.R.

On April 1, 2005, Judge Sween issued a written opinion and entered a judgment terminating the parental rights of F.R., Sr. and D.R. In his written decision, the judge ruled that the Division had made reasonable efforts to find relatives capable of providing for the children's special needs and that the children's best interests will be served by remaining in the custody of the foster mother, who understands and has provided for their special needs and who wishes to adopt them. The judge

found that the Division had proven the existence of the four criteria set forth in N.J.S.A. 30:4C-15.1a by clear and convincing evidence.

On appeal, F.R., Sr. argues that the Division failed to prove the termination criteria by clear and convincing evidence.

We begin our inquiry by restating applicable legal principles. These principles bear replication in light of the relief ordered by the Family Part judge.

The rights of parents to enjoy a relationship with their children is of constitutional dimension. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)); In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 403-04 (1999); New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591 (1986)). Parents have a constitutionally protected, fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). The Federal and State Constitutions protect the inviolability of the family unit. Stanley, supra, 405 U.S. at 651, 92 S. Ct. at 121-13, 31 L. Ed. 2d at 558-59; A.W., supra, 103 N.J. at 599.

"The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). As is true of so many other legal presumptions, "experience and reality may rebut what the law accepts as a starting point. . . ." Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119. The incidence of child abuse and neglect cases attests to the fact that some parents may act against the interests of their children. Ibid.

Government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Id. at 603, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119 (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State as parens patriae may act to protect children from serious physical and emotional harm. This may require a partial or complete severance of the parent-child relationship. However, "[f]ew forms of state action are both so severe and so irreversible." Santosky, supra, 455 U.S. at 759, 102 S. Ct. at 1398, 71 L. Ed. 2d at 610.

When the child's biological parents resist termination of parental rights, our function is to decide whether the parent can raise the child without causing harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of our inquiry is not whether the parents are fit, but whether they can become fit to assume the parental role within time to meet the child's needs. Ibid. "The . . . analysis entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid. The burden rests on the party seeking to terminate parental rights "to demonstrate by clear and convincing evidence" that risk of "serious and lasting [future] harm to the child" is sufficiently great as to require severance of parental ties. Ibid. The balance between fundamental parental rights and the State's parens patriae responsibility is achieved through the best interests of the child standard. K.H.O., supra, 161 N.J. at 347. Under that standard, parental rights may be severed when:

(1) The child's health and development have

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 foster 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).]

These standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children. K.H.O., supra, 161 N.J. at 348. The considerations involved in determining parental unfitness are "'extremely fact sensitive'" and require particularized evidence that addresses the specific circumstances of the specific case. Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

In reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determinations and its "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). We are not to disturb the judge's findings unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Regarding the first prong of the statutory test contained in N.J.S.A. 30:4C-15.1a, "[t]he primary focus of the court should be upon harm for which there is unambiguous and universal social condemnation." A.W., supra, 103 N.J. at 604 (internal quotations omitted). "Paramount examples of such condemnation are evident in the context of physical and sexual abuse." Ibid.; see N.J.S.A. 9:6-8.21 (noting that the definition of an abused or neglected child includes one whose parent inflicts, or allows to be inflicted, protracted impairment of mental health). "Serious emotional injury . . . should thus be regarded as constituting injury to the child." A.W., 103 N.J. at 604.

Here, there is overwhelming evidence that both A.R. and R.R. have experienced severe emotional injury while in the care of their biological parents and that they will be likely to need several more years of ongoing psychological therapy to address that damage. F.R., Sr. argues that his parental rights should not be terminated because he has changed in prison and that he will not inflict any more emotional injury upon his children. He also argues that custody should be placed with either his sister or his father, in order that the children stay within the family.

Unfortunately, the evidence in the record clearly and convincingly supports the conclusion that F.R., Sr. does not possess the requisite skills needed to parent these children. At trial, Dr. Kanen testified that F.R., Sr.'s history of chronic alcoholism and violence, along with his severe parenting deficits make him an unlikely choice for custody of these children. Dr. Kanen felt that he did not possess the characteristics needed to appropriately care for A.R. and R.R. He also stated that due to F.R., Sr.'s, long history of serious personality problems, any childcare demands would likely be met with severe irritability and hostility, and the children would be at risk if he acted out against them. It is also clear from F.R., Sr.'s testimony that he fails to appreciate or understand the extent of the damage done to these children, or their special needs as a result thereof.

Moreover, with respect to F.R., Sr.'s sister T.R., and his father V.R., the clear and convincing evidence in the record supports the conclusion that neither relative would make an appropriate placement for these children, due to the children's special needs. In their testimony, neither V.R. nor T.R. acknowledged the special needs of these children, instead relying on the proposition that the fact that they are "blood relatives" will solve the majority of their problems. All the evidence in the record supports the opposite conclusion. Both Dr. Kanen and Dr. D'Urso testified at length that the children would need protracted psychological/psychiatric therapy, with R.R. being the most severely affected.

In addition, F.R., Sr.'s father already has three children living at his condominium residence. Neither T.R. nor V.R. have had any contact with the children for the past approximately two years, nor do they have any knowledge or understanding of the special needs of these children. Therefore, it is clear and convincing that the first prong of the best interests test has been met because neither F.R., Sr., T.R., nor V.R. would make adequate, safe parents for these children in terms of their emotional well-being and development.

With respect to the second prong of the statutory analysis, "a court should focus upon whether, within this setting, the parents are giving the child the nurture and affection that money cannot provide." A.W., supra, 103 N.J. at 607. A court attempting to analyze the ability of a parent to give their children adequate care should "determine whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care." Ibid.

Here, again, Dr. Kanen testified that it is extremely unlikely that F.R., Sr., would be able to curtail his impulsivity, hostility, aggression. According to Dr. Kanen, it is also likely that F.R., Sr., will put the children at risk if he is to lash out at them in anger. Both testifying psychologists stated that not only do R.R. and A.R. have special psychological needs, they will require psychological therapy for several years into the future. Indeed, all of the psychologists were in agreement with the proposition that R.R. and A.R. would be very difficult children to parent and that they required special understanding from their caregivers. Because neither F.R., Sr., nor any relative was able to understand the extent of the special needs of the children, or provide for those needs, they would be unable to prevent inflicting more emotional harm and would not be appropriate guardians for A.R. and R.R.

The third prong of the analysis requires that a court examine alternatives to termination. "A common alternative to termination is placement with a relative or relatives." A.W., supra, 103 N.J. at 609. As we have noted, placement with the paternal relatives would not be appropriate. Moreover, the children are already placed with a foster parent with whom they are bonded and attached, and who wishes to adopt them. The evidence in the record demonstrates that their foster mother is a person who is experienced in dealing with children and teenagers who have special needs because she has a degree in the field and currently works as a special needs teacher in a high school.

F.R., Sr. questions whether DYFS had performed reasonably in order to find alternatives to termination of his parental rights. T.R. alleged that she called the Division several times and received no response from either Mr. Padierna or Mr. Herrera. However, the trial judge found that the testimony of the Division case managers was more credible than T.R.'s testimony. Moreover, there is overwhelming evidence of the foster mother's capabilities in caring for these special needs children; their attachment to her; and the lack of understanding by F.R., Sr.,'s family members of the special needs of the children. These factors lead to the clear conclusion that there were no acceptable alternative placements to termination.

The fourth prong of the statutory test stands for the proposition that "a decision to terminate parental rights should not simply extinguish an unsuccessful parent-child relationship without making provision for a more promising relationship in the child's future." A.W., supra, 103 N.J. at 610 (internal citations omitted). Children deeply need an association with a nurturing adult. Ibid. Because permanence has been seen as an important aspect of nurturing, it must be evaluated carefully by the court. Ibid.

Here, the evidence established that the foster mother has established a firm, loving, healthy and bonded relationship with both children. The trial judge found that the foster mother's skills have

helped the children address their severe emotional, behavioral and cognitive problems and they have become attached to her and now refer to her as "Mommy." She wishes to adopt the children and they will be psychologically harmed if separated from her.

Dr. Kanen testified that the children relate to the foster mother "as if she's their [biological] mother . . . they perceive her as their mother." He stated that the effect of removing the children from the foster home would be "removing them from the only permanent and stable caretaker that they've known and they would likely . . . regress in the gains they've made[.]" When asked what the effect would be on the children if the parental rights of D.R. and F.R., Sr. were terminated, Dr. Kanen stated that there would be no effect whatsoever. Clearly, the termination of the parental rights of F.R., Sr. would not do more harm than good.

In summary, there is substantial, credible evidence in the record supporting the conclusion of the trial judge that the Division has proven, by clear and convincing evidence, each of the statutory prongs set forth in N.J.S.A. 30:4C-15.1a.

 
Affirmed.

G.H., the maternal grandmother and legal guardian of three of the children who were the subject of this complaint (T.H., Al.R., and K.R.), was named as a defendant. R.C., who was cohabiting with D.R., and was the putative father of D.R.'s unborn child, was also named as a defendant.

We use the fictitious initials "T.R." for the children's paternal aunt because she has the same initials as one of the minor children.

(continued)

(continued)

36

A-4267-04T4

RECORD IMPOUNDED

February 28, 2006