DIVISION OF YOUTH AND FAMILY SERVICES v. L.K.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-3251-05T43251-05T4

A-3252-05T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

L.K.,

Defendant-Appellant.

______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF

R.A.D-K.,

a Minor.

______________________________

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.T.,

Defendant-Appellant.

______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF

R.A.D-K.,

a Minor.

________________________________________________________________

 
Submitted December 19, 2006 - Decided

Before Judges Payne, Graves and Lihotz.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Union County,

Docket No. FG-20-50-05.

Yvonne Smith Segars, Public Defender, attorney

for appellant L.K. (Ursula Solek, Designated

Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney

for appellant C.T. (William J. Sweeney,

Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for

respondent (Andrea M. Silkowitz, Assistant

Attorney General, of counsel; Michael A. Toya,

Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for R.A.D-K., a minor

(Scott I. Fegley, Designated Counsel, on the

brief).

PER CURIAM

In these consolidated appeals, L.K. is the mother and C.T. is the father of R.A.D-K. (R.K.), who was born on November 2, 2001. The parents appeal from a judgment entered on January 18, 2006, terminating their parental rights and awarding the guardianship, care, custody, and control of R.K. to the Division of Youth and Family Services (DYFS or Division). We affirm.

We fully recognize, of course, that the right of parents to enjoy a relationship with their children is constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Parents have a fundamental liberty interest in raising their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). Both the federal and state constitutions protect the inviolability of the family unit. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).

"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). This presumption, however, is not always true. "[E]xperience 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. As evidenced by child abuse and neglect cases, some parents may act against the interests of their children. Ibid. Thus, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. "More recently, 'concern has arisen for the best interests of children whose parents have forsaken their parental duties. The child's right to a permanent home has gained increasing prominence.'" In re Guardianship of P.P., 180 N.J. 494, 505 (2004) (quoting In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999). Undoubtedly, R.K.'s need for permanency and stability was a critical factor in this case.

When a child's biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise the child without causing the child further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. "The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents," and the "burden falls on the State to demonstrate by clear and convincing evidence that the natural parents have not cured the initial cause of harm," and they "will continue to cause serious and lasting harm to the child." Ibid.

While recognizing the fundamental nature of parental rights, and the need to preserve and strengthen family life, the Legislature has also recognized that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. The best interest standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, and codified in N.J.S.A. 30:4C-15.1(a), requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

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

These four requirements "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. The considerations involved are extremely fact sensitive and require particularized evidence that addresses the specific circumstances present in each case. Ibid.

The facts leading up to R.K.'s placement in foster care are not disputed. L.K., the mother, was twenty-three years old and living with her mother, B.R., when R.K. was born on November 2, 2001, at JFK Medical Center in Edison. R.K.'s father was not named on the child's birth certificate. DYFS became involved on November 19, 2001, when it received a report from the John F. Kennedy Family Practice Center that L.K. and her son had returned to the facility on two separate occasions "for mental health issues" since the child was born. The caller advised the DYFS worker that L.K. "said she was extremely depressed and worries she'll hurt the baby when he cries, she doesn't like [it] when the baby cries."

That same day, a Division worker met with L.K. and her mother, B.R., at their home. L.K. advised that she had sought help for her depression at JFK Medical Center and that she had received a prescription for Prozac. L.K. advised the DYFS worker that she would "never hurt the baby" and that when "she's frustrated because he's crying she goes into another room and puts on music or goes on the porch and sits for awhile." L.K. also indicated that she needed help during the day when her mother was at work, and she requested a paternity test to confirm that C.T. was R.K.'s father.

As a result of this interview, the Division opened a case to provide homemaker services, counseling, and supervision. Thereafter, the Division made several unsuccessful attempts to follow up with L.K. to arrange these services.

On January 18, 2002, when R.K. was ten weeks old, a JFK Medical Center social worker advised the Division that R.K. had been hospitalized due to a diagnosis of "neglect and failure to thrive." R.K. had gained only six ounces since his birth on November 2, 2001, when he weighed seven pounds and seven ounces. The caller further advised that L.K. disclosed to a doctor that she puts R.K. to bed around 7:00 p.m. and "doesn't feed him until [the] next day. If he cries she throws [a] blanket over him." On January 24, 2001, R.K. was placed in the custody, care, and supervision of the Division. When he was discharged from the hospital on January 25, 2002, the Division placed R.K. with a foster family.

L.K. had supervised visits with her son on February 8, 2002, and February 26, 2002. During the visit on February 26, 2002, L.K. indicated that she was waiting for the Division to help pay for therapy and DNA testing, but she also mentioned that she received monthly SSI payments. At that time, L.K. was unemployed.

On March 6, 2002, L.K. underwent a psychological evaluation with Lori B. Goldblatt, Psy.D. During her interview with Dr. Goldblatt, L.K. revealed that she began attending Devereux, a residential school, when she was fifteen years old, and she stayed at Devereux until she turned seventeen. When asked about her work history, L.K. stated that she was "working as a barmaid in Sayreville," and that she also worked in an "auto wrecking yard" owned by an ex-boyfriend.

L.K. also advised Dr. Goldblatt that she was residing with a friend, N.C., and also with C.T., who was "really the father of the baby." According to Dr. Goldblatt, the address L.K. gave her was the same as the address listed for C.T. in the DYFS records, "which appears to be a motel in Avenel." L.K. told Dr. Goldblatt that she named someone other than C.T. as the father of the baby because she "was with [her] ex and [her] boyfriend now." Paternity testing subsequently confirmed that C.T. was the biological father of R.K.

Dr. Goldblatt's recommendations were as follows:

1) [L.K.] must enroll in a parenting education class focusing on basic child care, child development and behavior (with reference to what is "normal" and "abnormal" at various stages of development), and how to seek out assistance with childcare when she is unsure of what to do.

2) [L.K.] seems to need more education than what a typical parenting class entails. Therefore, an on-going program after she completes the parenting education class may assist her in identifying problems with her child or with her parenting skills as they occur.

3) [L.K.] would benefit from supportive psychotherapy to keep her depressive symptoms from recurring. She does not appear to suffer from major depressive symptoms at this time, but may be susceptible to a recurrence. . . .

4) I do not believe she is capable of caring for her child on her own at this time. Once she has completed parenting classes and enrolls in counseling, her ability to adequately parent her child may be reassessed. Until that time, [R.K.] should remain in either foster care or in his grandmother's sole custody. However, [L.K.'s] supervised visitation should be as often as possible so that she may begin to bond with her son and gain confidence [in] her ability to parent him effectively.

On May 2, 2002, R.K. was placed with B.R., his maternal grandmother. When R.K. was reunited with his grandmother, L.K. and C.T. were living together in a motel. In August 2002, the Division arranged for a psychiatric evaluation of L.K. by Dr. Alexander Iofin. Dr. Iofin's findings and recommendations included the following:

In my opinion, with a reasonable degree of psychiatric probability, which is more likely than not, this patient appears to have a long lasting history of affective problems, which appear to manifest as Depressive Disorder, with recurrent and chronic course. The patient will require aggressive psychopharmacological therapy in order to stabilize her with the goal of having [her] be in remission or having only minimal signs of [d]epression. The patient will need to be on long term, at least three to five years of treatment with antidepressants and, if necessary, with other psychotropic medications under the supervision of a qualified psychiatrist. The patient needs to have parental training classes. If the clinical course of her [d]epression is favorable, which means that she has no exacerbation of her mental illness for a period of at least three months, the reunification process can be started gradually by the Division of Youth and Family Services. The necessary components of reunification will be long[-] term follow[-]up with a mental health center where she will receive psychotherapy as well as medication management, and the ability of this person to be able to adequately care for the child, which will be checked by direct observation by the personnel involved in this case. An appropriate safety net should be created, which should include an agreement with a mental health center, where she will follow up, to contact the Division of Youth and Family Services if the patient has any exacerbation of her [d]epression later on that will put the child in danger of being neglected. . . . Overall, with a reasonable degree of psychiatric probability, which is more likely than not, this patient should have satisfactory recovery and be capable to take care of the baby in a few months, if all of these requirements are followed through.

. . . .

I started [L.K.] on Wellbutrin SR 100 mg twice per day, as well as gave her Provigil 100 mg twice per day, and I will follow up with her in a period of about two weeks to help with expeditious recovery from her current symptoms of [d]epression.

Dr. Iofin also noted that L.K. had told him "that she was treated with multiple medications, mostly for behavioral control issues, until she was 18, and since the age of 18 she stopped taking her medications because she feels that she was 'drugged enough.'" This may explain why L.K. failed to take the medication that Dr. Iofin prescribed. On November 12, 2002, a DYFS caseworker visited the home of B.R., and the caseworker reported the following:

[B.R.], [L.K.] and [R.K.] were all present. [L.K.] has a cold and was obviously ill. [R.K.], who is now walking, appeared neat, clean, well fed, happy, and well cared for. During the course of the visit, if [R.K.] had a need, he went to his Grandmother for help. It is noted that [L.K.] calls her son[] Chris because of the result of the paternity test which determined [R.D.] is not the father of the infant [R.K.] It is also noted that [R.K.] did not respond to his mother when he was called Chris. [B.R.] reported she is struggling financially. Although [L.K.] receives a SSI subsidy she does not contribute to household expenses. [L.K.] sleeps in the living room of the small apartment. [L.K.] stated she is not taking her prescribed medication which treats her depression but she did attempt to make an appointment with her psychiatrist during the visit. . . . [B.R.] encouraged her daughter to return to therapy and taking her medication. [L.K.] did appear resistant but it was apparent she was not feeling well and she did apologize for being somewhat a[rg]umentative. [B.R.'s] apartment is neat, clean, and adequately furnished. It appeared all of [R.K.'s] needs were being met by his grandmother.

On November 21, 2002, the court approved a permanency plan that allowed L.K. to reside with B.R. and R.K. The order noted that the child would be in daycare when B.R. was at work. The order also stated that it was not safe to return the child to L.K. "in the foreseeable future" because she had not obtained psychotherapy and parenting skills training. L.K. was ordered to "obtain psychotherapy, take prescribed medical [and] attend parenting skills class." On January 14, 2003, B.R. confirmed to a DYFS caseworker that she wanted to obtain legal custody of her grandson, and L.K. confirmed that she was "not quite ready to assume full responsibility of her son at this point."

On January 22, 2003, the court dismissed the protective services litigation, and it awarded legal custody of R.K. to B.R., his grandmother. The dismissal order required L.K. and C.T. to "participate with parenting skills training," and it required L.K. to "participate in psychotherapy and medication management."

In September 2002, the Division referred L.K. to Catholic Charities for parenting skills training, and Catholic Charities sent a letter to L.K. on October 23, 2003, confirming that her parenting group sessions would begin on November 5, 2002. On May 6, 2003, Catholic Charities notified the Division that L.K. had "stopped coming to group." But L.K. eventually completed twelve group sessions on December 30, 2003, and Catholic Charities reported that after L.K. completed the twelve group sessions, she attended six additional group sessions.

On the afternoon of August 30, 2003, B.R. left her grandson alone in a parked car at a truck stop. The police reported that the car windows were rolled down about two inches, and R.K. was warm to the touch. After he was removed from the car, R.K. was sent to a hospital for heat exposure treatment. B.R. admitted to the police that when she went inside for lunch, she left R.K. in the car because he was sleeping.

As a result of B.R.'s failure to properly care for R.K., the child was placed in foster care. In November 2003, B.R. pled guilty to fourth degree child abuse, and on February 23, 2004, B.R. was sentenced to probation for a period of two years.

In July 2004, the Division referred L.K. to Dr. Allen Lee for a psychological assessment. Dr. Lee reported that L.K. "denied any current prescription medications." L.K. also provided Dr. Lee with the following information:

[L.K.] reported that the child was placed into foster care when she had some difficulties feeding the child, but then her own mother got custody of the child when the child was about six months of age. From then, she reported [maintaining] an active role in caring for her own child. She indicated that around August or September 2003[,] there was an incident when her own mother, who was then reportedly suffering from cancer and receiving chemotherapy, left the child in the car. She reported this led to the child again being removed from the home. She reported that the child went back into foster care around August or September 2003, and [L.K.] reported weekly visits for about two hours every week at the Elizabeth District Office. She indicated a wish to have her son returned to her care, and sees her[]self as having improved in her parenting skills. She reported completing the parenting program in December 2003. She reported no plans to reconcile with the child's father until he gets the help that he needs. However, she conceded that she still goes places and communicates with the child's father.

Dr. Lee's recommendations were as follows:

Recommendations for [L.K.] would include some ongoing individual counseling to help improve her personal awareness, improve her psychological and emotional resources, and to help with her decision making. It should be verified that she completed a Division-approved parenting education program to help ensure this appropriate foundation of parenting and childbearing knowledge and skills. She should have some occasional random urinalyses to ensure she is not abusing illicit substances. [L.K.] might be referred to a Division-approved domestic violence victim program to help understand the relationships, cycles of domestic violence, and to help minimize any risk of her being exploited, controlled, or dominated by male figures. Some in-home family counseling might be helpful especially if reunification is to be considered to smooth the transition and reunification process. If the child is reunified, some period of ongoing Division monitoring is certainly indicated to help ensure her compliance with services and [a] stable and appropriate environment. [L.K.] is recommended to maintain stable and appropriate residence, relationships, and employment or financial resources while abstaining from domestic violence relationships. It was also noted from her psychiatric evaluation that medication Wellbutrin SR 100 mg was to be started. If such medications were started, she should certainly be continued with ongoing medication monitoring by a board-certified psychiatrist. Ongoing Division monitoring is certainly encouraged.

When L.K. was evaluated by Dr. Lee in July 2004, she was still not taking the anti-depressant medication (Wellbutrin) that Dr. Iofin had prescribed on August 15, 2002. During the trial, L.K. testified that she was taking Wellbutrin because she didn't "want any trouble."

Q. And what is the Wellbutrin for?

A. When I had postpartum depression.

Q. You're still taking the Wellbutrin.

A. Yes.

Q. So you're still suffering from postpartum depression?

A. No more.

. . . .

Q. [L.K.], do you know why you are still taking the Wellbutrin if you no longer suffer from postpartum depression?

A. I'm taking it because DYFS had told me to take it and if I don't take it I don't want to be in trouble.

Q. So if DYFS told you to stop taking the Wellbutrin, you would stop taking it?

A. I would do what my doctor told me.

Q. Why is your doctor . . . still telling you to take Wellbutrin if you no longer suffer from postpartum depression?

A. Because -- I'm taking it because I, I just don't want any trouble. I don't want to go against anybody. So I have to take it.

L.K. and C.T. were afforded supervised visitation with R.K. in 2004 and 2005. For the most part, supervised visitation was not a problem, however, the visitation sessions were monitored by a separate agency, Family and Children's Services, which suspended visitation in July 2005. In a letter to the Division dated July 6, 2005, Family and Children's Services related the following problems:

This worker is writing to inform you of some of the problems encountered during visits with [L.K.] and her son [R.K.]. [L.K.] has not complied with several of this agency's policies and procedures for supervised visitation. [L.K.] has failed to confirm 24 hours in advance of her scheduled visits. On June 6, 2005, [L.K.] arrived late for her visit, when told that this agency does not allow this time to be made up, [L.K.] asked to speak to the program supervisor, who informed her of the agency's policy that the visit cannot be extended. [L.K.] did however extend the visit another twenty-five minutes by refusing to end the visit with her son.

During the visit on June 25, 2005, [L.K.] did discuss with this worker that she felt uncomfortable with the fact that bathroom visits were supervised. This worker reminded [L.K.] of the agency's policy regarding this situation. During the visit on July 5, 2005, [L.K.] again brought up the situation involving the bathroom visits. This discussion [led] to [L.K.] speaking inappropriately in front of her son and verbally berating this worker. Upon leaving the building for this visit [L.K.] proceeded to follow her son to the transportation vehicle and then climbed in the van to strap her son in the seat, even though this worker repeatedly reminded her that this action was not permitted.

During the visits [L.K.] had with this worker she discussed topics that were inappropriate to be discussed with her son, such as when he would be coming home, and negative feelings she has towards his foster father.

The case was tried on October 19, 21, 24, 25, 28, and November 28, 2005. On January 18, 2006, Judge Spatola rendered a comprehensive ninety-one page oral decision. During the trial, the court heard testimony from two psychologists: Dr. Leslie Williams testified for the Division, and Dr. Richard Klein testified for L.K. At the outset of the trial, C.T.'s attorney acknowledged that C.T. was not seeking custody of his son. C.T.'s position, as stated by his attorney, was that "[L.K.] should have full custody of the child" or, in the alternative, L.K. should "share custody with the maternal grandmother."

Dr. Williams and Dr. Klein had different opinions regarding L.K.'s ability to parent R.K., and the court ultimately concluded that Dr. Williams's findings and conclusions were "much more persuasive" than Dr. Klein's:

Dr. Klein found [L.K.] to be depressed, but he opined that this was a reaction to [R.K.'s] removal from her. He found no evidence of any significant psychopathology. Dr. Klein found [L.K.] competent to parent [R.K.] by herself as long as she remained in treatment for her depression and took her medication as prescribed, and if she has a suitable home, and adequate daycare while she works. Dr. Klein's opinion that [L.K.] was capable of parenting [R.K.], led to his recommendation that the child should be gradually removed from the care of his foster fathers and be placed with his mother. Dr. Klein was obviously of the opinion that whatever the cause for [R.K.'s] removal, all was well with [L.K.] now, and the child should be returned to her. Dr. Klein discounted the fact that [L.K.] had moved a lot to Piscataway to Burlington to Linden, where she lived in a motel. In fact commenting on a hypothetical, he said that it would not be problematic nor evidence of housing instability if one moved as often as on a monthly basis. Indeed Dr. Klein appeared to take a personal interest in [L.K.'s] case. And in fact he announced that he had agreed to act as her expert witness free of charge after she had called him expressing concern about the cost associated with his evaluations and testimony.

Dr. Klein's evaluation of [L.K.] was, however, cursory at best. And the conclusion he reached, is of doubtful validity. He administered only two tests, the Rorschach and Projective Drawing Test . . . . From the Inkblot or Rorschach test, Dr. Klein concluded that [L.K.] was functioning in the low range of intellect although he believes her to [be] capable of low average functioning. . . . Dr. Klein concluded that [L.K.] is competent to parent [R.K.] as long as she stays in treatment, takes her medication, and maintains a stable home and daycare if she works.

. . . .

Dr. Klein also concluded that the child was bonded to his mother as well as his foster parents. He also noted that the child . . . "manifests some indication of a behavioral disorder." . . . Dr. Klein's bonding conclusions were undetermined by his now apparently routine practice of having his wife, Elaine, a speech pathologist, do the bonding observation. He attempted to sidestep this issue testifying that he was in and out of the observation too. But the reality is that his wife, who[se] expertise is speech pathology, and not psychology, watched the test subjects and she then made notes from which Dr. Klein draws conclusions. One such note in DK-2 includes these words: . . . "[R.K.] woke up and played with toys supplied by Dr. Klein," . . . "the child would not separate from the mother at Dr. Klein's request." . . . This methodology is inherently flawed and renders Dr. Klein's conclusions on this issue of bonding well nigh worthless in this [c]ourt's opinion.

During the trial, L.K. testified that she had lived in a motel with C.T., but after she became pregnant she moved in with her mother:

Q. When you moved in with your mom, where, . . . if you know, did [C.T.] live? Did he move in with your mom?

A. I moved in with my mother . . . at that time because he didn't care.

Q. You told him you were pregnant?

A. Yes.

Q. Did you tell him you thought he was the dad?

A. I told him he was the father.

Q. Okay.

A. He denied it.

. . . .

I called him maybe a couple of hours after.

Q. After what?

A. After my son was born.

Q. Okay. And did you reach him?

A. No.

Q. Did you leave a message for him?

A. I left a message at the hotel for him.

Q. Okay. And how long were you in the hospital after [R.K.] was born?

A. Four days.

Q. He was born on a Friday?

A. Yeah.

Q. And did [C.T.] visit you at the hospital?

A. No.

Q. Did he ever give you anything for the baby after you . . . took the baby home?

A. No.

Q. Did he ever bring you diapers?

A. No.

Q. Offer to help you with any of your expenses for clothing for the child?

A. No.

. . . .

Q. As far as you know in [R.K.'s] life, has [C.T.] bought him anything?

A. Yes. He's bought him some stuff.

Q. What has he bought him?

A. He's brought him a puppet, a little puppet, a car, gave him a card, candy.

The trial court addressed each of the statutory requirements for terminating parental rights, and its findings as to C.T. included the following:

Dr. Williams found [C.T.] to be immature and defensive and noted that the negative results on [C.T.'s] Millon Clinical Axial Inventory were consistent with his history. This history included domestic violence and violations of domestic violence restraining orders. Dr. Williams testified that [C.T.] has no ability to assist [R.K.]. The psychologist wrote in P-64 that [C.T.] . . . "primarily focuses on his own needs and [abdicates] his responsibilities to other people." . . . [C.T.'s] testing disclosed that he may be prone to . . . angry outbursts and sudden abusiveness. Dr. Williams concluded that [C.T.] is incapable of providing adequate parenting to [R.K.]. There was no opposing expert opinion in evidence. This [c]ourt agrees with Dr. Williams.

The trial court found that Dr. Williams was a credible expert witness, and that the record provided ample support for crediting his findings and conclusions. Dr. Williams determined that it would be in R.K.'s best interest to be adopted by his foster parent, Mr. Z:

[L.K.] appears to be an immature and defensive individual who took no responsibility for her behavior and the impact of that behavior on [R.K.'s] life. She spent the evaluation complaining and painting herself as a victim of others. She was very vague about her psychiatric history and denied any problems with her ability to care for or support [R.K.]. [L.K.] could not explain why she had not yet achieved reunification with [R.K.] and claimed to have done everything necessary in order to regain custody of him. As noted above, [L.K.] denied any responsibility for [R.K.] having been removed from her care. She stated that she had developed postpartum depression due to lack of support on [C.T.'s] part and the fact that she was overwhelmed with being a single parent. However, she indicated that postpartum depression was something that women just developed and did not want to be held responsible for her behavior and what then subsequently happened with her ability to care for [R.K.].

As noted above, [L.K.] and [C.T.] appeared to be giving conflicting information regarding their relationship. They both seemed to indicate that they were together and/or working on their relationship. Meanwhile, [L.K.] announced that she had recently gotten engaged to another man and was planning to be with him and to have children with him. [C.T.] told me that [L.K.] had been calling him on a daily basis and was telling him that she loved him. Their relationship appears to be a rather volatile and unstable one but one that, nonetheless, neither one can end.

[R.K.] did not evidence a significant bond with either [L.K.] or [C.T.]. He was virtually uncontrollable during those bonding evaluations. Neither [L.K.] nor [C.T.] demonstrated any ability to control [R.K.'s] behavior. [C.T.] in fact, showed no interest in [R.K.] or motivation to have him. As noted above, [C.T.] made no effort to play with [R.K.] and seemed more concerned with getting the evaluation over as soon as possible.

While [L.K.] expressed an interest in [R.K.], she showed no ability to control his behavior. She explained his behavior away as something that "kids do." Interestingly, [B.R.] told me that [R.K.'s] behavior was like [L.K.'s] behavior when she was a child.

Conversely, Mr. Z was firm and patient with [R.K.] and [R.K.'s] behavior was significantly different when seen with Mr. Z. [R.K.] responded to Mr. Z and appeared to have a warm relationship with him. Mr. Z was able to gently control [R.K.'s] behavior. [R.K.], for his part was much more attentive to Mr. Z and Mr. Z appeared to be a significant and important person in [R.K.'s] life. When seen with [L.K.] and [C.T.], [R.K.] did not appear to consider either individual important to him. He tried to hit and kick [L.K.] and paid no attention to [C.T.].

In my professional opinion, within a reasonable degree of psychological certainty, [L.K.] is not capable of providing adequate parenting of [R.K.]. She would benefit from psychotherapy to explore her low self-esteem and unmet nurturance needs as well as her self-defeating behavior. She needs to develop much better parenting skills th[a]n she evidenced during the bonding evaluation. It is believed that [L.K.'s] prognosis for making and sustaining positive changes in her life is poor. The primary reasons being that [L.K.] takes no responsibility for behavior and prefers to blame others and see herself as a victim. I did not see any motivation on [L.K.'s] part to actually change.

I believe that [R.K.] is significantly bonded with Mr. Z and he does not have such a bond with [L.K.] or [C.T.]. [R.K.] appears to be familiar with both of his biological parents but does not appear to consider them important in his life. Neither [L.K.] nor [C.T.] was capable of controlling [R.K.'s] behavior. [R.K.] did not appear to care what [L.K.] or [C.T.] was saying to him and [R.K.] made no effort to change his behavior to accommodate them. He did change for Mr. Z and it appeared to be because he values Mr. Z's input into his life. I do not believe that [R.K.] would suffer severe and enduring psychological harm if [L.K.'s] or [C.T.'s] parental rights were terminated. I believe that [R.K.] would suffer severe harm if separated from Mr. Z. He has come to view Mr. Z as his psychological parent and the person who is there for him consistently, meeting his emotional and physical needs. I believe that it would be in [R.K.'s] best interest to be adopted by Mr. Z.

During summations, L.K.'s attorney argued that Dr. Williams's findings were nothing more than "psychobabble" when compared to L.K.'s expert, Dr. Klein, who "candidly admitted that [L.K.] will be a competent parent as long as she continues her therapy and her prescribed medication." Conversely, the Law Guardian for R.K. argued that C.T. has neither the capability nor the desire to parent R.K., and L.K. "does not have the stability, especially the mental stability, to be a capable parent." The Division's attorney acknowledged that L.K. deserved credit for visiting with her son and for participating in parent group-training sessions; however, she argued that "[R.K.] can't afford to wait. [R.K.] is in a home that wishes to adopt. He is in a home where he views the caretakers as his psychological parents." We do not disagree. R.K. has been in foster care for most of his life, and permanency is in his best interest.

On appeal, L.K. and C.T. claim that the State failed to prove, by clear and convincing evidence, that their parental rights should be terminated. We conclude, however, that the trial court's findings are firmly supported by substantial credible evidence in the record, and we agree with the trial court's decision that termination of parental rights is in the best interest of R.K. pursuant to N.J.S.A. 30:4C-15.1(a). We affirm the judgment under appeal substantially for the reasons stated by Judge Spatola in her thorough and thoughtful decision on January 18, 2006.

 
Affirmed.

(continued)

(continued)

26

A-3251-05T4

RECORD IMPOUNDED

January 19, 2007