DIVISION OF YOUTH AND FAMILY SERVICES v. V.W.W.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6282-05T46282-05T4

DOCKET NO. A-6283-05T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

V.W.W.,

Defendant-Appellant.

___________________________________

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

W.W.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF T.A.S.W.,

Minor.

________________________________________________________________

 

Submitted March 28, 2007 - Decided

Before Judges Parker, C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-81-06.

Yvonne Smith Segars, Public Defender, attorney for appellant V.W.W. (Evelyn F. Garcia, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant W.W. (Linda Mehling, Designated Counsel, on the brief).

Stuart Rabner, Attorney General of New Jersey, attorney for respondent Division of Youth and Family Services (Michael J. Haas, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor T.A.S.W. (Cynthia McCulloch DiLeo, Designated Counsel, on the brief).

PER CURIAM

In these consolidated cases, defendants V.W.W. and W.W. appeal from an order entered on June 27, 2006 terminating their parental rights. V.W.W. and W.W. are the biological parents of T.A.S.W., born January 4, 1999. The parents have an older child, M.W., born on July 31, 1996, who has been in the custody of her maternal grandparents and is not involved in this appeal.

In October 2000, the Division of Youth and Family Services (DYFS) first became involved with the family when it received a complaint that M.W. had been abused by her mother. Abuse of the child was not substantiated at the time, but a history of domestic violence between the parents was documented.

In March 2003, Evesham Township Police advised DYFS that store employees in Marlton reported that a young child, later identified as T.A.S.W., was being beaten in the store and in the parking lot by her mother. Despite reports by several witnesses, the allegations were not substantiated.

In June 2004, DYFS received a report that T.A.S.W.'s father was in jail on charges stemming from domestic violence, her mother was drug involved and the child was in poor physical condition. The DYFS caseworker who responded indicated that T.A.S.W.'s "teeth were rotten at the top and the bottom [and] [h]er gums [were abscessed] on the right side above her right front tooth." The child, then five years old, reported to the caseworker that her parents smoked "blunts" at home. The caseworker was uncertain that the child knew what a "blunt" was, but the child described it as "a big, brown cigarette . . . . [A]nd she said you stuff it like this." The court then added: "Let the record reflect the witness has coupled her thumb and forefinger on her left hand and then taken the right hand and pushing her fingers through." The child showed the caseworker where her father "cut and roll[ed] [the] blunts and stacked them on the table [in] their living quarters."

The mother was not at home when the caseworker interviewed the child. When the caseworker contacted her, she claimed that she was homeless and was living out of her car. She told the caseworker that no one would help her. The mother confirmed to the caseworker that the child was present during incidents of domestic violence but she denied that W.W. smoked crack cocaine and blunts in the child's presence. The mother signed a consent agreement to place the child in foster care for fifteen days. She subsequently signed a six-month consent agreement.

The caseworker also contacted the child's father who was then in the Gloucester County Jail. He denied domestic violence and drug use in the home.

The child was initially placed with her maternal aunt. In July 2004, however, the maternal aunt indicated that she could no longer care for the child because her father had been killed in a boating accident the previous Saturday. On August 4, 2004, the child was placed with A.S. and M.S. M.S. is the mother's half-sister and is a special education teacher.

In addition to the child's horrendous dental condition, it was learned after she was placed with M.S. and A.S., that she had ringworm on her scalp and required surgery because of fluid in her ears. The child has remained with M.S. and A.S. since the August 2004 placement.

After the child was placed with M.S. and A.S., the caseworker tried repeatedly to contact the mother but was unable to do so. The father remained confined in the Gloucester County Jail.

When DYFS was able to reach the mother, she was referred for a substance abuse evaluation, random urine screening, in-home counseling and parenting skills classes. She was also referred for a psychological evaluation. The psychological evaluation was done by Frank J. Schwoeri, Ph.D., a clinical psychologist. Dr. Schwoeri had two interviews with the mother but she failed to appear for a third interview.

Dr. Schwoeri diagnosed the mother as suffering from a personality disorder NOS, with features of anti-social personality and narcissistic personality disorders. In evaluating the father, Dr. Schwoeri noted that he, too, appeared for two interviews but failed to appear for the third to complete his evaluation. Dr. Schwoeri diagnosed the father as suffering from a personality disorder NOS with marked anti-social and paranoid features. The father denied current drug or alcohol use and failed to disclose his arrests for domestic violence. Dr. Schwoeri concluded that, based on their psychological profiles, neither the mother nor the father could provide a stable and supportive environment for the child.

Dr. Schwoeri also undertook bonding evaluations between the child and each of her parents and the foster parents. He indicated that the child "did appear somewhat passive and conflicted, particularly regarding acknowledging any positive feelings toward her [foster parents][,] which she does seem to have[,] but is reluctant to admit as if feeling [a] significant loyalty conflict." He concluded that while the mother "shows some capacity to be reasonably nurturing toward her daughter, the larger situational context and historical facts appear to suggest significant problems with her ability to provide stability and protection for her daughter in order to meet her developmental needs in an optimal fashion." With respect to the bonding evaluation between father and child, Dr. Schwoeri noted that "[t]his pair has a mutual history, at least some aspects of which are clearly positive." Nevertheless, he noted that the father had no inkling of housing or future employment.

In the bonding evaluation between the child and the foster parents, Dr. Schwoeri noted that the foster parents refer to themselves as the child's aunt and uncle and that the child and the foster parents appear comfortable with each other. Dr. Schwoeri testified that the foster parents "interacted with [T.A.S.W.] in a gently guiding and somewhat directive way but mostly in a way that elicited [T.A.S.W.'s] preferences and abilities rather than telling her what to do." He concluded that the child is currently "provided [with] a very stable [and] nurturing environment with people who are able to also provide appropriate guidance and protection." In his opinion, the child would suffer serious and long term harm if she were removed from the foster parents' care. He noted that the child has been with this family "about two years now and she certainly established a very positive connection with them" and that it would "be upsetting . . . and difficult for her" if she were removed from their care.

Dr. David Bogacki conducted evaluations and testified on behalf of the parents. He agreed with Dr. Schwoeri's primary diagnoses for both parents but disagreed with Dr. Schwoeri's assessment that the father's personality disorder had antisocial and paranoid features.

With respect to his bonding evaluation of the child and her parents, Dr. Bogacki noted that the child

gave both her mother and father a warm physical greeting as well as a hug and a kiss goodbye at the end of the evaluation. She was entirely comfortable during the evaluation with them. At times she sat on her father's lap and at other times on her mother's lap.

He concluded that "[i]f [their] parental rights were terminated the child would likely suffer from some degree of emotional harm. The emotional harm cannot be specified to a degree of reasonable psychological certainty." Both parents denied domestic violence in their interviews with Dr. Bogacki. He indicated, however, that if there was domestic violence, it would be important in evaluating their fitness as parents. Dr. Bogacki opined that the mother would be able to provide a safe and stable home for the child because

she's completed a substance abuse program and parenting skills classes, which she was asked to complete . . . . [a]nd that would eliminate the risk based upon my evaluation of her that her substance abuse problem is in full sustained remission and that she has adequate parenting skills in order to parent her daughter.

He further opined that terminating parental rights would do more harm than good because "there's a strong emotional attachment of the child to [the mother] . . . . [and] she doesn't present any imminent risk to her daughter." He also noted that the child had resided with her parents for two-thirds of her life and "appears to be relatively well adjusted." He nevertheless stated that the parents "have treatment needs before the child can be returned" to their care.

In this appeal, the mother argues:

POINT ONE

THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S PETITION FOR TERMINATION OF PARENTAL RIGHTS BECAUSE THE DIVISION FAILED TO PROVE THE FIRST PRONG OF THE STANDARD FOR TERMINATION AS SET FORTH IN N.J.S.A. 30:4C-15.1 WITH CLEAR AND CONVINCING EVIDENCE

POINT TWO

THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S PETITION FOR TERMINATION OF PARENTAL RIGHTS BECAUSE THE DIVISION FAILED TO PROVE THE SECOND PRONG OF THE STANDARD FOR TERMINATION AS SET FOURTH [SIC] IN N.J.S.A. 30:4C-15.1 WITH CLEAR AND CONVINCING EVIDENCE

POINT THREE

THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S PETITION FOR TERMINATION OF PARENTAL RIGHTS BECAUSE THE DIVISION FAILED TO PROVE THE THIRD PRONG OF THE STANDARD FOR TERMINATION AS SET FOURTH [SIC] IN N.J.S.A. 30:4C-15.1 WITH CLEAR AND CONVINCING EVIDENCE

POINT FOUR

THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S PETITION FOR TERMINATION OF PARENTAL RIGHTS BECAUSE THE DIVISION FAILED TO PROVE THE FOURTH PRONG OF THE STANDARD FOR TERMINATION AS SET FORTH IN N.J.S.A. 30:4c-15.1 WITH CLEAR AND CONVINCING EVIDENCE

POINT FIVE

IT WAS PLAIN ERROR FOR THE COURT TO ALLOW IMPERMISSIBLE HEARSAY AND THEN BASE A PORTION OF ITS OPINION ON THE HEARSAY EVIDENCE

The father argues:

POINT ONE

THE JUDGMENT OF GUARDIANSHIP MUST BE REVERSED AS THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION WAS IN THE BEST INTERESTS OF THE

CHILD

A. The Division Failed to Offer Housing Assistance, Even Though Lack of Housing Was A Key Impediment to Reunification

B. Termination of Parental Rights Will Do More Harm than Good Because [T.A.S.W.] Has a Strong Emotional Tie to Her Biological Parents

Judge Robert W. Page rendered a detailed opinion on the record on June 27, 2006, in which he set forth the facts and the applicable law articulated in N.J. Div. Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), codified in N.J.S.A. 30:4C-15.1. He concluded that DYFS had clearly and convincingly demonstrated each of the four statutory factors and that termination of parental rights was in the child's best interest.

We have carefully considered the record in light of defendants' arguments and the applicable law. We are satisfied that defendants' arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

The father maintains that DYFS failed to offer housing assistance, which was a key issue in reuniting the family. Housing was a significant issue here, but clearly not the only reason for terminating defendants' parental rights. A significant factor with respect to the housing issue is that neither of the parents made efforts on their own behalf to seek housing assistance from welfare authorities or made significant inquiries for housing support.

Both parents argue that the trial judge overlooked the harm to the child in terminating parental rights because she had strong ties to her biological parents. Judge Page found Dr. Schwoeri's findings more detailed and credible than Dr. Bogacki's. He noted that Dr. Bogacki based his opinion on the parents' self-reporting that there was no domestic violence and that the father was not currently using drugs or alcohol. With respect to the bonding evaluations, Judge Page found that Dr. Schwoeri's evaluation between the child and foster parents indicated that the foster parents were "well attuned to this child" and "[i]t [would] be harmful to her to be removed from that" environment. Judge Page further noted that Dr. Bogacki did not undertake a bonding evaluation of the child with the foster parents and indicated that it is important for an evaluator to see everyone involved, including the foster parents.

In short, we affirm substantially for the reasons set forth by Judge Page in his decision rendered on the record of June 27, 2006.

Affirmed.

 

(continued)

(continued)

12

A-6282-05T4

RECORD IMPOUNDED

April 24, 2007