DIVISION OF YOUTH AND FAMILY SERVICES v. C.D. and E.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3896-05T43896-05T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

C.D. and E.D.,

Defendants-Appellants.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF H.D. and Z.D.,

Minors.

_________________________________

 

Submitted February 5, 2007 - Decided February 27, 2007

Before Judges Seltzer and C.L. Miniman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-46-05.

Yvonne Smith Segars, Public Defender, attorney for appellant E.D. (Michael Confusione, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant C.D. (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Lisa B. Landsman, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors H.D. and Z.D. (Roberta A. Howe, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendants C.D. (mother) and E.D. (father) appeal from a final judgment terminating their parental rights respecting their adopted, special-needs children, H.D. and Z.D. Defendants assert that the trial court erred in finding that all four of the statutory criteria for terminating parental rights were satisfied by clear and convincing evidence. We affirm.

I.

C.D. and E.D. were married in 1974 and had six natural-born children. Their first child, a daughter, was born in 1975 and died in 1978. Their first son was born in 1976 and the second in 1979. Their fourth and fifth children, both daughters, were born in 1981 and 1983, respectively. Their last natural-born son was born in 1987.

Defendants, with the assistance of Lutheran Social Ministries, adopted their first special-needs child, H.D., in June 1991 when she was less than one month old. H.D. has Down's Syndrome and was born with an imperforate anus, which was corrected surgically after her birth. At that time, she was given a temporary colostomy until the anal surgery healed. Defendants took H.D. to her pediatrician for regular check-ups until she was seven years old. Her immunizations were not completed, although the defendants claimed that they were.

In July 1997, the Division of Youth and Family Services (DYFS) placed A., another special-needs, multiply handicapped child, in defendants' care as a pre-adoption placement. A. had Arthrogryposis Multiplex Congenita, which resulted in significant contractures and limb and bone deformities. She required a wheelchair. On May 14, 1999, a DYFS nurse-consultant expressed concern about the care A. was receiving in defendants' home in that she was not being taken for necessary medical appointments. Another nurse reported that C.D. was restraining A. in her crib as a punishment for drooling. A. was swaddled by C.D. and placed in a corner of her crib for five hours at a time for discipline. A. was also being home-schooled, which deprived her of needed therapies she would have received in school. Ultimately, DYFS determined that physical abuse was unfounded and medical neglect was not substantiated, although concerns remained about abuse and neglect by defendants.

Shortly after the DYFS nurse wrote this report, defendants requested that A. be removed from their home. They claimed that she had poor behavior, that a family member suffered a broken collar bone from a head-banging incident, and that the family had not had one hour of consecutive sleep in fourteen weeks. C.D. claimed that A. was in need of behavioral counseling. A. was removed from defendants' home in June 1999 and examined at Community Medical Center. She had ligature marks on both arms and her left leg.

In the meantime, defendants adopted Z.D., who was born on December 9, 1998, and placed with them from the hospital on February 10, 1999, through Lutheran Social Ministries. Z.D. had Prader-Willi syndrome, an illness marked by an inability of the child to know when he is satiated by food and, thus, is prone to overeating. Children with this syndrome suffer from immature sexual development, weak muscle tone, and behavior problems because they do not recognize cause and effect sequences.

Three years after the adoption of Z.D., Lutheran Social Ministries placed another special-needs child with defendants for adoption. N.O. was born on September 4, 2001, and arrived in defendants' home in April 2002. N.O. had been diagnosed with Cornelia de Lange Syndrome and other medical ills. N.O. was nourished through a feeding tube.

L.E., the fifth special-needs child to be place in the care of defendants, arrived in their home in October 2003, either through the intervention of Lutheran Social Ministries or some private adoption service. L.E. was a child with Down's Syndrome whose adoptive mother, M.E., surrendered her at the age of four-and-one-half years because M.E. was not able to provide adequate care for her. When L.E. arrived in defendants' home, she weighed twenty-seven pounds; was playful, sociable, and friendly; and had started potty training. M.E. kept in touch with defendants up to March or April of 2004, and then called again in October or November 2004.

In December 2004, DYFS received an anonymous report that L.E. appeared to be extremely thin. When Joleen Lopez, the DYFS social worker, arrived at defendants' home on December 29, 2004, to investigate the report, she asked to see L.E. She was told that L.E. was asleep in her room and Lopez then asked that L.E. be brought to her. C.D. told one of her adult daughters to get L.E. The daughter found L.E. in a car seat in her crib, restrained by the car seat strap and by terrycloth bindings on her wrists and ankles. L.E. appeared malnourished to Ms. Lopez and was extremely hungry. When given a waffle, she quickly ate it. Ms. Lopez was told that L.E. would have different meals from the rest of the family in that much of her food was mashed up and she would be served only limited portions. L.E. showed signs of bruising around her wrists and ankles, indicating that she had been restrained.

Ms. Lopez arranged for a visit to the family pediatrician where she, defendants, and L.E. were met by DYFS nurse Patti L. Brown, who Ms. Lopez called for an abuse and neglect evaluation. The nurse observed that L.E.'s "appearance was striking because not only was she emaciated and very pale, but she had a red rash around her eyes and her hair was very thin and patchy. She had no notable subcutaneous fat. Her complexion was very pasty . . . ." Nurse Brown observed the sores and bruising on L.E.'s wrists. L.E. weighed only twenty-one pounds partially dressed although she was five years and ten months old. She had also lost one and a half inches of height. The pediatrician informed DYFS that he had not seen L.E. since March 2004 when she weighed twenty-seven and one-half pounds. Nurse Brown and the pediatrician agreed that L.E. should be admitted to Jersey Shore University Medical Center for a full workup. When that was accomplished, Ms. Lopez returned to defendants' home to bring the other special-needs children to Jersey Shore University Medical Center for evaluation. All four children were admitted to the hospital on Wednesday, December 29, 2004.

The following day, Nurse Brown went to the hospital to review the medical records. First, with respect to L.E., Nurse Brown learned that L.E., like H.D., was born with an imperforate anus that had been surgically repaired. Sometime subsequent to the initial surgery, L.E.'s colostomy was reversed. Defendants claimed that L.E. suffered from constipation, having bowel movements only every three to four days or more, and that she often required enemas, and so she was given castor oil daily. In addition, they reported that L.E. would swallow food whole and then vomit. As a result, defendants gave her only Pediasure during the day. She had been seen by a cardiologist in March 2004, but no follow up was done by defendants. A nutrition consultation was done at the hospital, and L.E. was found to be well below the fifth percentile for her age on a Downs' Syndrome growth chart. Her thirty-eight inches of height placed her in the twenty-fifth percentile. Her body mass index was nine and seven-tenths, which is considered extremely underweight. Her temperature was only 92.9 , well below normal. At the hospital L.E. was able to eat food without choking or vomiting.

A skin care consultation was also performed, which Nurse Brown summarized:

She was not only found to have sores on her face and her wrists, but she had multiple ulcerations on both wrists, her sacrum (tailbone), both buttocks, and her left ankle. These sores were in various stages of ulceration, and some had crusted over with tissue necrosis (black, dead skin) present. The ulcers were assessed to be pressure sores caused from prolonged periods in the same position (bed sores). They were most likely aggravated by the child picking at them. Wound care was prescribed along with frequent position changes. If left untreated, these wounds could have continued to ulcerate down to the bone and been a serious, life-threatening condition. [L.E.] was started on an oral antibiotic to treat her wounds systemically.

Over the weekend of January 1, 2005, L.E. experienced a critical drop in her electrolytes and was admitted to the pediatric intensive care unit, where she remained for several days. An eye examination detected a tiny retinal hemorrhage in one eye, and a gastrointestinal consultation determined that L.E. had fecal impaction, requiring several enemas to clear her bowel. By January 3, 2005, L.E. had gained one pound, within one week, she had gained seven pounds. DYFS classified L.E. as medically fragile.

While L.E. was in the hospital, C.D. admitted to slapping L.E. to the point where she would fall on the floor. At times she would shake her. C.D. further admitted that "[s]he also has bound [L.E.'s] hands with rope and left her alone in the car seat for the entire day and then fed [L.E.] Pediasure at night." She claimed that this treatment was necessary because L.E. was difficult to control. An investigation by Ms. Lopez revealed that sometimes L.E. would be restrained overnight or even for days on end. E.D. was aware that L.E. was being restrained; he was concerned that it was getting out of control, but he did nothing to interfere with, or take control of, the situation. Rather, he was concerned about detection.

At discharge, Dr. Steven Kairys wrote that L.E. presented with "severe, chronic and acute malnutrition with a marked loss of subcutaneous fat, hypothermia, marasmus [a wasting of the body], electrolyte, protein and mineral abnormalities." She also presented with "[m]arked inflicted physical injuries with multiple bruises and ligature marks on various parts of the body." Summarizing her hospital stay, Dr. Kairys wrote:

During her course in the hospital, [L.E.] did very well. She gained weight dramatically and rapidly. She fed well. She was eager to eat, eager to be cared for and interact with the staff. By discharge, she was much more active and interactive. She no longer had any acute medical issues. She was able to walk and feed herself and had much improved receptive and verbal abilities. There were never any concerns about her behavior, her interest in feeding and she exhibited very positive social interaction abilities.

Nurse Brown also reviewed the medical chart on H.D. on December 30, 2004. At that time, H.D. was thirteen years old and weighed ninety-three pounds. H.D. still had the colostomy because defendants had decided not to follow the surgeon's recommendation that the colostomy be reversed. She also suffered from asthma and received nebulizer treatments. She had environmental allergies and took Zyrtec daily. H.D. had chronically enlarged tonsils. By history, she was home-schooled and was developmentally delayed. She knew only eight to ten words and her training was limited to loading the dishwasher. There were no obvious signs of physical abuse or neglect.

H.D. was found to have dental anomalies, malocclusion and dental caries, and by history, had not been seen by a dentist. Nurse Brown found this to be "very concerning because in a developmentally delayed neurologically impaired child such as [H.D.], dental caries could quickly become abscessed or infect[ed], and they could spread into the sinuses or bone if left untreated." Nurse Brown recommended that H.D. be seen by a dentist "ASAP" and that she be classified as medically fragile.

H.D. remained in the hospital for quite some time. Nurse Brown reported on February 22, 2005, that a tympannogram was done and was reported to be abnormal, requiring a hearing evaluation. She had been seen by a gastroenterologist for closure of the colostomy, but "[i]t was recommended that it be left in place because developmentally, [H.D.] may not be able to learn bowel training at this point in her life after having the colostomy for so long."

H.D. was placed in a foster home on February 23, 2005, and was doing well. Nurse Brown visited her there and was told by the foster mother that H.D. had a hearing loss as a result of middle ear congestion and fluid build up, and might need her tonsils and adenoids removed and tubes placed in her ears. She had not received all of the immunizations needed for school, and could not read or write anything except the letters "H" and "A." Subsequent visits by Nurse Brown focused primarily on H.D.'s breathing and hearing problems as well as her resistance to oral hygiene. She would not allow a dental hygienist to clean her teeth and she struggled when the foster mother attempted to brush them for her. Nurse Brown concluded that she would need sedation for routine dental cleanings.

When Z.D. was admitted to the hospital on December 29, 2004, he was six years old. He weighed fifty-five pounds and was obese for his height, even though defendants had placed him on a vegan diet to control his caloric intake. He also had two undescended testicles, which had not been repaired. Z.D.'s speech was clearer than that of H.D. and he often acted as H.D.'s interpreter for other family members. He needed help with activities like taking a bath and washing his hair, but was toilet-trained. Defendants reported that he had mood swings several times each day. He took Zyrtec for his seasonal allergies and used Elidel for his eczema. By history, he saw no medical specialists for his Prader-Willi Syndrome. He was reportedly home-schooled, but appeared to be educationally neglected. There were no obvious signs of physical abuse or neglect, but Z.D. slept in the same room as L.E. and saw L.E. every night when she was bound to her crib. Nurse Brown recommended a medically fragile classification for Z.D.

N.O. had been scheduled for adoption on January 15, 2005, before she was admitted to the hospital. Lutheran Social Ministries cancelled the adoption. N.O. was three years old and was severely developmentally delayed, without language capacity. As a result of her Cornelia de Lange syndrome, N.O. had a fundoplication to prevent reflux, was unable to eat normally and was fed through a gastric tube. Defendants had been feeding her Carnation Good Start infant formula. N.O. also had a seizure disorder and was given Tegretol through her gastric tube. She was kept on an apnea monitor for her seizures, but she had about two seizures per month despite the medication. She also had elevated blood pressure and was on medication for this condition. N.O. weighed only fifteen pounds three ounces, which was low on the height-to-weight ratio. Although defendants reported that she would sit unsupported and could transfer objects from hand to hand, the hospital staff reported that she did not have much activity and required support to sit. There were no obvious signs or symptoms of abuse. Nurse Brown again recommended a medically fragile classification.

II.

On January 4, 2005, DYFS filed an order to show cause for appointment of a law guardian and for temporary custody of H.D., Z.D., N.O. and L.E. A fact-finding hearing was conducted on February 24, 2005. On April 11, 2005, the Honorable Barbara Ann Villano entered an order finding by clear and convincing evidence that the four children were abused and neglected. The order also absolved DYFS from providing reasonable efforts to reunify the children with their parents. The adult children of E.D. and C.D. had applied for custody of the four children, but their application was also denied because of their failure to prevent the abuse and neglect of L.E. On April 28, 2005, DYFS filed a timely petition for guardianship.

The termination and guardianship trial took place over ten days, beginning on September 23, 2005. On November 3, 2005, the trial court granted a motion by DYFS for partial summary judgment, reaffirming the fact-findings that C.D. and E.D. abused and neglected the four children.

Dr. Alan J. Lee testified on behalf of DYFS. He conducted a psychological evaluation of C.D. He found that she had normal cognitive and intellectual functioning for someone her age, she had no abnormal brain function, and there was no evidence of mental illness. C.D. had some signs of depression and a need to be viewed as favorable in other people's eyes. This need sometimes resulted in defensive behavior. She tended to be egocentric, a very chronic and enduring personality trait, resulting in inappropriate behavior, such as striking a child. Dr. Lee had some concerns that C.D. was emotionally reactive and even explosive. He testified that there were repeated instances from November to December of 2004 when C.D. lost her temper and hit L.E. She also was chronically narcissistic and exercised poor judgment. Dr. Lee's opinion of C.D.'s ability to overcome these maladaptive traits was guarded. Dr. Lee believed that C.D. should not be given the opportunity to be an independent caregiver to H.D. and Z.D., both special-needs children. He also recommended a psychiatric evaluation by a board-certified psychologist for anti-depressant medication and individual counseling.

Dr. Lee also conducted a bonding evaluation of C.D. with H.D. and Z.D. H.D. was very excited to see C.D. She appeared to be content, comfortable, and free of any acute distress. When C.D. left, H.D. appeared to be sad and tearful. Dr. Lee concluded that H.D. had formed a significant and lasting psychological bond with C.D. Dr. Lee acknowledged that there would be some concerns about psychological or emotional ramifications for H.D. upon termination of parental rights, but the concerns for H.D.'s safety and welfare caused Dr. Lee to conclude she should not be returned to defendant.

As to Z.D. and C.D., Dr. Lee noted that when C.D. stepped into the room, Z.D. furrowed his brow and frowned. He made no effort to greet her; his affect was flat. As time passed, he warmed up to her and seemed happier. He showed no acute distress when she left. Dr. Lee opined that while there was some evidence of a psychological bond or attachment, the relationship seemed more ambivalent and insecure. Dr. Lee found the concerns about Z.D.'s safety more compelling than any concerns about psychological or emotional ramifications from termination of parental rights.

Dr. Lee also examined E.D. There were no signs of any major disturbance of his mental processes, but he had a number of chronic, enduring, maladaptive personality traits. He had a tendency to be self-focused and egocentric and to see things according to his own beliefs. Based on one of his tests, Dr. Lee hypothesized that E.D. may have a tendency to act out. There were no significant deficits in E.D.'s intellectual functioning. E.D. could, however, have trouble coping with ambiguous problems and become dependant upon others. He found E.D. to have an adjustment disorder with anxious and depressed moods, narcissistic personality traits with passive-aggressive features, and rigid, over-controlled hostility. Dr. Lee's prognosis on E.D.'s recovery from these issues was guarded. Dr. Lee did not support E.D. as a caretaker for H.D. and Z.D. based on his "pulled back" response to the care of L.E. and his failure to appreciate the wrongfulness of the situation, especially given the greater difficulty of having to care for the special needs of H.D. and Z.D. He characterized E.D.'s behavior with respect to L.E. as "grossly incongruent and inappropriate." He opined that E.D. still resisted seeing the full wrongfulness of his conduct, raising the likelihood of its recurrence, especially with special-needs children. Seeing pictures of the extent of injuries suffered by L.E., Dr. Lee's opinion respecting E.D.'s reunification with H.D. and Z.D. was reinforced. Dr. Lee observed that there were some signs of psychological bonding between Z.D. and E.D., based on a bonding evaluation, but did not recommend reunification based on his knowledge of the treatment of L.E.

Dr. Lee also testified that he conducted a psychiatric bonding evaluation of H.D. with E.D. H.D. was glad to see E.D., but showed no overt signs of distress when he left. Based on his observations, Dr. Lee found evidence of a significant and lasting relationship between H.D. and E.D. However, while H.D. was in foster care, she rarely brought up the topic of either adoptive parent. She called her foster parent "mom" and was affectionate, responsive, and essentially free of behavior problems or aggression. Despite the psychological bond between H.D. and E.D., Dr. Lee still had significant concerns about E.D.'s parenting capacity and fitness, due to his admitted role in the mistreatment of L.E. Dr. Lee was more compellingly concerned about H.D.'s safety in E.D.'s care than he was about any emotional trauma she might suffer as a result of termination of that relationship.

Dr. Lee, in evaluating Z.D.'s psychological attachment to defendant, found the relationship more ambivalent and insecure. Z.D. did not spontaneously discuss E.D. with his caregiver. Z.D. embraced E.D. when he entered the observation room and interacted with him. He showed no acute distress when E.D. left. Dr. Lee expressed significant concerns for Z.D.'s safety, given defendant's history with L.E., and opined that this concern was impacted by the special needs of H.D. and Z.D., especially their limited communication skills.

Dr. Charles F. Martinson testified on behalf of the defendants. Dr. Martinson expressed the belief that L.E.'s allegedly aggressive behavior was the cause of the child's mistreatment. He opined that C.D. was totally overwhelmed by L.E. and began to restrain her to protect the other children and to prevent L.E. from hurting herself. He testified to the many interventions C.D. and E.D. were pursuing and opined that they had an honest, earnest desire to change. He further opined that separation was emotionally devastating to H.D. and Z.D.

When cross-examined with the admissions defendants made to the police and the condition of L.E. at the time of removal, Dr. Martinson admitted that L.E. was close to death, but felt that H.D. and Z.D. could be safely placed with defendants. Dr. Martinson was not aware that Z.D. slept in the same room as L.E. and that, after he had been removed from defendants' home, he was observed tying up baby dolls' hands. Dr. Martinson admitted this information would have had an impact on his opinions because Z.D. might have been harmed by witnessing L.E.'s mistreatment. Neither was he aware that H.D. did not have well-child care after the age of seven and he admitted that she should have had such care. He also admitted that defendants should have pursued the ENT referral and explored H.D.'s hearing loss. Dr. Martinson was unaware of the failure of C.D. and E.D. to provide any kind of home-schooling approved by the Department of Education. When told on cross-examination that L.E. exhibited no behavior problems in the hospital or during her subsequent placement, Dr. Martinson testified that it would make him wonder about the accuracy of what defendants told him about L.E. He also admitted that he did not speak to any therapist to ascertain the defendants' commitment to therapy or how the issues could be soundly treated.

Dr. Qazi, the pediatrician for L.E., H.D., and Z.D., testified for DYFS. He first examined L.E. when she was seven years old on March 1, 2004. When showed photos of L.E. on December 29, 2004, Dr. Qazi compared them with his recollection of his previous examination of L.E. and said that she appeared to be suffering from malnutrition. When showed a picture of L.E.'s buttocks, Qazi saw a bed sore at the sacrum, very irritated skin with no muscle mass, and, what he believed was an "emaciated hiney." He testified that he never recommended feeding L.E. PediaSure (which was a staple of L.E.'s diet under C.D.'s care) or using restraints on her. He testified that L.E.'s weight dropped from the tenth percentile to below the fifth percentile from March 1, 2004, to December 29, 2004, and he attributed the drop to not eating.

Dr. Qazi had recommended that H.D.'s colostomy be reversed and he was not sure why this was never done because, he opined, a colostomy is a temporary thing. He believed that, even at fifteen years old, reversing the colostomy would improve H.D.'s quality of life, with the proper toilet training. Qazi, however, never discussed the pros and cons of reversing the colostomy with C.D. It was his opinion that the defendants had taken good care of H.D.'s colostomy site. He testified that he had referred H.D. to an ENT doctor, but there was never any follow-up. He was not aware of H.D.'s dental problems. Dr. Qazi diagnosed Z.D. with Prader-Willi Syndrome and noted his undescended testicles. He testified that he had not recommended any action be taken regarding the testicles until Z.D. was older.

On February 24, 2006, Judge Villano terminated the parental rights of C.D. and E.D. to H.D. and Z.D. and awarded guardianship of these two children to DYFS. In addition, the judge denied the adult children's application for custody, because they "blocked out" the mistreatment of L.E., ignored the neglect of H.D. and Z.D., and probably would not be able to separate themselves from the parents in providing care for H.D. and Z.D. The judge found the facts and stated her conclusions of law in a lengthy bench opinion. First, she incorporated her earlier finding that aggravating factors of abuse and neglect were established by clear and convincing evidence, and that DYFS "was not required to make reasonable efforts at reunification or to provide services while the guardianship action was pending." Next, she rejected Dr. Martinson's view that the mistreatment of L.E. was "some sort of a blip on the radar screen . . . , that these were good parents who just had an episode," because the conduct occurred over a period of months. She concluded that "the way [C.D.] chose to treat any acting out behavior [was] beyond belief." Judge Villano's ultimate conclusions follow:

The court is required to find that the harm caused to the child constitutes physical abuse, developmental retardation or emotional injury.

I don't think I can say it any other way, than I found beyond any doubt that [H.D.] and [Z.D.] were abused and neglected and harmed by the [defendants] in that they were mentally deprived of what was rightfully theirs, which is the right to an education, the right to support, the right to be nurtured. They witnessed the severe abuse of another child and received little, if any, attention to their own medical and educational needs.

And I find as a fact that the [defendants] are . . . psychologically, emotionally, [and] intellectually unable to accept responsibility for their actions or to address their past wrongs. Their focus is completely and totally skewed.

I would also point out that the failure to have [H.D.] attended to at an early age has put her in a position where she is now tied to that colostomy bag for the rest of her life, which is a completely unacceptable in this day and age, completely unacceptable situation for her.

The cases point out that in addressing the issue of any future harm, the inquiry of the court should be to determine that the harm will likely have a continuing deleterious effect on the child. And I think that as indicated both by Dr. Lee and even by Dr. Martinson when he indicated he would change his opinion had he known those other things, the need of the couple to preserve their view of themselves as good and capable parents prevent them from . . . truly seeking help from outside sources.

Prong two, I think . . . there's an overlapping here with the psychological issues. But, again, we have [C.D.] blaming others, [E.D.] ignoring the issues in the household and blaming the behavior on . . . [L.E.] for the trouble that was in the household and then trying to hide it within the confines of the home so that no one would find out. Nobody did anything to try and eliminate this harm, to try and get services in there. Nobody. You're just lucky this child didn't die.

The question about the adult children, . . . they all . . . talked about [H.D.] and [Z.D.], and . . . I had to remember that [L.E.] was in the house during the period of time that they were talking.

There were pictures that were presented of [H.D.] and [Z.D.] . . . , but nothing . . . about [L.E.]. It was as though they kind of just blocker her out.

They talked about their schedules keeping them from having any interaction with [L.E.], but she was . . . tied up in the room. Any they . . . said that when they saw her she had long sleeves and pants so they didn't see any of her bruising or her marks. I . . . can't imagine that you could . . . see this child in the condition that she was and not be horrified.

They talked about the bond that they had with [H.D.] and [Z.D.]. I don't doubt that they love these children. I . . . don't doubt it at all. But I . . . have difficulty thinking that they can properly care for a child if they could see that [L.E.] was barely able to stand up and move around or eat with the family and not find some concern.

I just . . . don't know how they could . . . concentrate on the two children without realizing that the other children had needs. They didn't even really talk about [N.O.] either . . . .

Again, they . . . indicated that everything was fine until [L.E.] came. So there seems to be this view that somehow this child caused all of the difficulty that occurred in this household. I just . . . can't find it.

I don't see that these adult children could separate themselves from their parents. I don't see that they would put themselves in a position to deny their parents access to the home. And . . . the parents in my opinion present a significant danger to any child, especially a special needs child, and both of these kids are special needs kids. . . .

[T]o see [H.D.] not be all she could be, to see them not going to school, to see them not learning and do nothing about that, to think that it was normal for them, for her to know eight words, I can't accept that as something that would be in these children's best interest.

So I do not see that they present an alternative to termination.

The other balancing issue that has to be addressed is that there's no question that [H.D.] and [Z.D.] are bonded to the [defendants]. They are the only parents these kids know. But . . . Dr. Lee did not recommend a return simply because there is no way to believe that a child will be safe in that household. There is no way to believe that.

And that whatever the issues are, [H.D.] is doing well, [Z.D.] is doing well. And while they may miss and while there may be a need for some sort of terminating visits, there is nothing before the court to show that there will be enduring harm that will result to these children as a result of termination of parental rights.

There is no way under the law, under the facts of this case that this court sees the [defendants'] household as a place where the[ir] children can enjoy safety, security, encouragement and support to be the children that they can be and the adults that they have a right to . . . be. So I cannot find that termination will do more harm than good . . . .

On April 4, 2006, C.D. and E.D. filed this appeal. C.D. raises the following issue for our consideration:

THE TRIAL COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW WERE NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE THAT ALL FOUR OF THE STATUTORY CRITERIA FOR TERMINATION OF PARENTAL RIGHTS HAD BEEN SATISFIED.

E.D. raises these issues for our consideration:

Point 1 - DYFS violated the reasonable efforts requirement, and the trial court violated the alternatives to termination clause, by pursuing termination less than five months after DYFS first became involved with the family.

Point 2 - The evidence showed that the [Defendants] were both willing and able to eliminate the parental harm that led to their improper conduct with L.E.; since DYFS didn't clearly and convincingly prove otherwise, the trial court's conclusion was not based on sufficient, credible evidence in the record and cannot stand.

Point 3 - Termination will do more harm than good because H.D. and Z.D. are closely bonded to their parents and there's no permanent plan in place for these older, special-needs children; since DYFS didn't clearly and convincingly prove otherwise, the trial court's conclusion was not based on sufficient, credible evidence and cannot stand.

Point 4 - The trial court violated the alternatives to termination clause by rejecting the care offered by H.D.'s and Z.D.'s adult siblings.

III.

The scope of our review of a trial judge's findings of fact is a limited one. Those findings may not be disturbed 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, 483-84 (1974). We find no error in Judge Villano's findings of fact. They are supported by adequate, substantial, credible evidence in the record and are entitled to deference on appeal, especially in a Family Part matter. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

However, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to our plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Parents enjoy a constitutionally protected right to enjoy a relationship with their children. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed in the termination of parental rights. Id. at 347. However, parental rights are not absolute and the constitutional rights that surround family rights are "tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. This balancing test is achieved with the best-interests-of-the-child standard. Ibid.

When applying for guardianship, DYFS is required to institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on the State to establish its case by a clear and convincing standard. Ibid.; In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The best-interests-of-the-child standard is set forth in N.J.S.A. 30:4C-15.1(a) and establishes the proofs required to terminate parental rights:

(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.

These four criteria relate to and overlap with each other and are not discrete and separate. N.J. Div. of Youth & Family Servs. v. M.M., ___ N.J. ___, ___ (2007) (slip op. at 22); K.H.O., supra, 161 N.J. at 348. Each of these criteria was applied to the facts as the judge found them to be.

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by defendants are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1)(A), (E), and we affirm substantially for the reasons expressed by the trial judge in her oral opinion delivered on February 24, 2006. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. Rova Farms, supra, 65 N.J. at 483-84. We add the following.

 
The abuse to which L.E. was subjected was so severe and shocking that no child could be left in defendants' care with a clear conscience. Where the parents' conduct is particularly heinous, "the fundamental bond that is the basis of the reunification notion is deemed to be irremediably undermined" and efforts to remedy the conditions that led to abuse and neglect would be of no consequence. N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 284-85 (2004). No efforts could ameliorate the risk of further abuse. Although H.D. and Z.D. were not starved or bound with ligatures (so far as we know), they were severely neglected - medically, educationally, or both - and were abused by being subjected to witnessing the abuse of L.E. The defendants' efforts to blame L.E. for the abuse lays bare their inability or unwillingness to ameliorate the harm to their children. Clearly, termination of their parental rights with the children placed in safe environments will do much more good than harm.

Affirmed.

The crib also had the type of netting over the top that is used prevent a toddler from climbing out of the crib.

C.D. and E.D. were charged with assault and endangering the welfare of a child. The disposition of those charges is not contained in the record before us.

No words can truly convey L.E.'s appearance, not only with regard to the bedsores but also the malnutrition. The photographs of L.E. that were admitted into evidence are absolutely sickening and reveal how unimaginably inhumane her treatment was at the hands of defendants. Her bones are jutting out at angles from under her skin and the black, crusted bedsores on her buttocks and sacrum involved about half of the skin area below her waist.

None of the alleged home-schooling of any of the special-needs children was pursuant to any school-supervised or Department of Education approved program. Neither was there any evidence proffered during trial respecting the content of this education.

H.D. required the removal of seventeen baby teeth, having two full sets of teeth, and as of the hearing on November 28, 2005, still required extensive dental work.

Z.D. once told Stephanie Ann Noss, a DYFS caseworker, while being transported for an appointment at the DYFS office, that L.E. was bad at home, didn't want to eat, "would stick her tongue out," would be locked in her bedroom a lot, and was tied up.

This procedure closed off the stomach from the esophagus.

The adult children appealed the denial of custody, but withdrew their appeal after it was determined that their application would be entertained during the guardianship trial.

The adult children did not appeal from this judgment.

(continued)

(continued)

29

A-3896-05T4

RECORD IMPOUNDED

 

February 27, 2007