NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. W.F. and C.P.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5716-05T45716-05T4

A-6288-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

W.F. and C.P.,

Defendants-Appellants,

________________________

IN THE MATTER OF THE

GUARDIANSHIP OF

D.P. and R.P.,

Minors.

_________________________________________________

 

Argued May 15, 2007 - Decided

Before Judges Weissbard, Payne and Lihotz.

On appeal from Superior Court of New Jersey,

Chancery Division-Family Part, Hudson County FG-09-277-05.

Michael C. Wroblewski argued the cause for

appellants (Yvonne Smith Segars, Public

Defender, attorney; Mr. Wroblewski, Designated Counsel for W.F. in A-5716-05T4 and on the brief; Mark Tabakman, Designated Counsel for C.P. in A-6288-05T4 and on the brief).

Tara Beth LeFurge, Deputy Attorney General,

argued the cause for respondent (Andrea M.

Silkowitz, Assistant Attorney General, of

counsel, Ms. LeFurge on the brief).

Olivia Belfatto Crisp, Assistant Deputy

Public Defender, argued the cause for the

minor children (Yvonne Smith Segars,

Public Defender, Law Guardian for the minors, Ms. Crisp on the brief).

PER CURIAM

In these related matters, which we have consolidated for opinion purposes, mother, W.F., and father, C.P., appeal from an order of a judge of the Family Part terminating their parental rights to daughters D.P. (fictionally, Dana), born on July 21, 1997, and R.P. (fictionally, Ruby), born on December 31, 1998, claiming that the State failed to meet any of the four prongs of the statutory best interest test set forth in N.J.S.A. 30:4C-15.1(a). See also New Jersey Div. of Youth and Fam. Servs v. A.W., 103 N.J. 591, 604-11 (1986). They are supported in the appeal by the arguments of the girls' law guardian, who asserts that the State failed to prove the second, third and fourth prong of that test.

The subject test requires, for an order of termination to issue, that there be clear and convincing proof that:

(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).]

I.

The family has had longstanding contact with DYFS. In January 2000, when Dana was two and one-half years of age and Ruby was approximately one, DYFS was informed that W.F., addicted to cocaine and alcohol, had left her husband, C.P., taking with her two older children, born to different fathers. C.P., homeless, was unable to care for the girls, who were removed from C.P. on January 11, 2000. Upon reconciliation between W.F. and C.P., the girls were returned to their parents' care on July 28, 2000. However, they were again removed on April 30, 2001, following an incident in which C.P., enraged by a fight with a brother-in-law, picked up the girls and ran while carrying them football-style, dropping one and placing the other on a moving car that C.P. then sought to enter.

A complaint for guardianship was filed. However, on February 10, 2003, the Division's complaint was dismissed and the matter was converted into an abuse and neglect action. Further hearings were held on April 16, 2003, as the result of which the Division was ordered, by June 18, 2003, to implement a plan for reunifying the girls with their mother, W.F., who had separated from C.P. in 2001 and had been divorced from him in 2002. An additional hearing was held on June 18, 2003, and immediate overnight visitations with W.F. were ordered. However, on July 16, 2003, after the judge learned that W.F. was cohabiting with a known sex offender (a circumstance that was later remedied), the court suspended overnight visitation with W.F. and ordered all visitation to take place at the Division's district office.

The termination proceedings were reopened on August 20, 2003, but on March 5, 2004, following trial, the judge dismissed the termination complaint, finding that the Division had failed to establish the fourth prong of the statutory test by clear and convincing evidence. In a supplemental oral opinion on the Division's motion for reconsideration, the judge cited W.F.'s abstinence from drugs and alcohol, stabilization of her financial situation, acquisition of permanent housing, gainful employment, participation in recommended counseling, and strong bond with the children in support of his decision.

On July 28, 2004, the judge authorized the children to be placed in W.F.'s custody, her inappropriate relationship having ended, and they were returned to her at her residence in Jersey City in early September 2004. W.F. moved with her four children to a row house with four bedrooms in Easton, Pennsylvania on October 31, 2004. A DYFS caseworker's summary of the case at that point stated:

[In or around June 28, 2004, W.F.] was allowed to have in-home weekend visits with [Ruby] and [Dana]. The goal changed from termination of parental rights. The Urban League continued to work with the family to provide support during the transition period. The children were returned to [W.F.] on 9/7/04. The Urban League indicated that [W.F.] successfully completed the program, that she was extremely proactive in fulfilling all her children's needs and ensured their safety. The report stated that she had adapted to reunification in the home with her daughters.

* * *

Based on MVRs on 8/17/04, 9/16, [and] 10/1 the Division determined [W.F.] was an appropriate caretaker for the children; that the children were not at risk with her. The case was determined ready to be closed.

After [W.F.] relocated to Pennsylvania the Division's plan was to travel to Pennsylvania and then close the case.

Lindsay Mangarelli from ARC called to tell worker that on 12/14/04, she had gone to [W.F.'s] home in Pennsylvania. Ms. Mangarelli reported that the home was appropriate, the children ([Ruby] and [Dana]) indicated that they really enjoyed living with their mother. She stated that everything was fine with them. Ms. Mangarelli stated that [W.F.] appeared to be a warm person. Also that [the older daughter] and [older son] were polite and respectful. Ms. Mangarelli stated that the family appeared to be doing well.

C.P. was afforded continued visitation, upon notice to W.F.

On January 14, 2005, the children were once more removed, on an emergency basis, from W.F.'s custody as the result of sexual conduct by the girls' eleven-year-old half-brother. On March 16, 2005, DYFS filed a second complaint seeking to terminate the parents' rights to the girls. Following hearings on the matter, occurring in June 2006 before the same judge who had held the first trial, the parental rights of W.F. and C.P. were terminated. Prior to the termination trial, the girls' offending step-brother had been placed in the legal and physical custody of his grandmother in Jersey City. Additionally, a few months before the trial, W.F. had remarried a person employed as a sound engineer. A background investigation of W.F.'s husband revealed no criminal history. We were informed at oral argument that W.F. continues to live in Easton with her husband, an older daughter, and the daughter's infant child. Bi-weekly supervised visitation, in New Jersey, between W.F. and the girls, established after their removal, has continued while the matter is on appeal. We were informed that C.P., who also was afforded supervised visitation, ceased visiting the children in September 2006. Psychological records pertaining to Dana, submitted after oral argument on appeal, confirm the lack of contact between C.P. and the girls after September 2006.

It is unquestionable that, at various points in the girls' lives, their safety was endangered as the result of W.F.'s drug and alcohol addiction and desertion; by C.P.'s limited intellectual function, occasional homelessness and joblessness; and by the couples' episodes of domestic violence. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Nonetheless, the extensive psychological records maintained in this case reveal that, with two exceptions, all persons performing bonding studies found that the girls remained strongly bonded to both of their natural parents, while maintaining a less affectionate relationship with their foster mother and her husband. Moreover, W.F.'s lifestyle had stabilized to an extent that permitted efforts toward reunification to occur after the first termination complaint was dismissed, and that permitted the eventual return of the girls to her custody to be effected. By the conclusion of the first termination trial, W.F. had been drug-free for a substantial period, having successfully completed out-patient substance abuse treatment in January 2001, with no history of relapse. Although as the result of his intellectual limitations and his need for extensive assistance in caring for the girls, C.P. was deemed not to be an appropriate custodial parent, overnight visitation was permitted.

Removal of the girls in January 2005 occurred as the result of the conduct of their half-brother while the girls were in W.F.'s custody. However, there is no evidence in the record to suggest that the half-brother remained a threat to the children's safety once he was placed in his grandmother's legal custody in Jersey City and was thus physically separated from his immediate family. Moreover, the evidence suggests that, as the result of W.F.'s recent marriage, her life, if anything, had further stabilized. We therefore inquired at oral argument why the Division regarded W.F. to be an unsuitable custodial parent and why, given evidence of the girls' continued strong attachment to and preference for their natural parents, termination of parental rights was thought to be in their best interests. We were informed by the Division that W.F. had continued to demonstrate a pattern of exercising poor judgment in connection with her care of the girls that commenced with her addiction and desertion, continued with episodes of domestic violence and her ill-advised relationship with a known sex offender, and was most recently exhibited when she permitted sibling sexual contact to occur. We were also informed that the need for permanency outweighed any other considerations in the matter.

As a consequence, we have focused our analysis of the extensive record in this matter primarily upon (1) the psychological evaluations of the natural parents (2) the circumstances of the step-brother's sexual contact and the extent of W.F.'s knowledge of it, and (3) the nature and strength of the girls' attachment to their parents and foster mother and their adjustment to the circumstances of their lives.

II.

The record in this case supports the determination by DYFS that C.P. would be an inappropriate custodial parent for the girls. As the result of a fall out of a third-story window as a child, C.P. exhibits low intelligence. He has had difficulty maintaining employment, sometimes selling handbags on the street, and sometimes lacking a job, has experienced periods of homelessness, and has exhibited the need for assistance in assuming fulltime care for the two children. His intemperate, angry and sometimes violent outbreaks pose an additional threat.

Our consideration of W.F.'s ability to exercise reasonable judgment in the care of her children is aided by a record containing multiple psychological evaluations, as well as the trial testimony of various experts. Those reports disclose a remarkable increase in W.F.'s level of functioning. In an April 25, 2000 report to DYFS, psychologist Harvey Block found, among other things, that W.F. "may be perceived by others as odd, peculiar, and unusual both in terms of her thinking and behavior. She exhibits poor judgment and is often unpredictable and impulsive. She is emotionally distant and has difficulty with close emotional relationships." Dr. Block observed that: "Individuals with similar profiles tend to be chronically maladjusted." Nonetheless, he concluded that, despite W.F.'s intellectual limitations, she had "adequate acquired knowledge to provide basic care for the children. Prognosis for her being able to care for the children is fair assuming that her drug problems continue to remain in remission and that her practical housing and financial barriers are settled."

Further evaluations of W.F. were conducted for the Division by psychologist Ernesto Perdomo. Following evaluations on October 22 and November 7, 2001, Dr. Perdomo found W.F. to be of low-average intelligence, with no thought disorder or psychosis. However, he concluded on the basis of testing and interviews that she had a narcissistic, depressed, and impulsive personality, and that her "ability to provide effective parenting to her children [was] limited by her personality dynamics." Long-term therapy was recommended.

Dr. Perdomo testified on behalf of the Division at the first trial, and his opinions formed the foundation for the judge's conclusion that termination was not warranted. Although a transcript of that testimony has not been provided, the judge's opinion on the Division's motion for reconsideration of the initial denial of termination discloses that Dr. Perdomo testified that W.F. had made "significant" and "substantial" progress, that she had complied with all of his recommendations, and that she had effectively stabilized her life. The doctor saw no problem in returning the children to W.F. Dr. Perdomo did not further examine either the biological parents or the girls, and did not testify at the second trial.

On February 9, 2004, W.F. was psychologically evaluated at Hoboken's St. Mary Hospital by Dr. Nadezhda Robinson. During that evaluation, W.F. reported

substantial changes in her life since Dr. Perdomo evaluated her. She obtained her high school diploma. She reports she has been working as a Home Health Aide for the past 17 months. She reports she has been in her current apartment for the past 12 months. She reports she obtained Section 8 [housing] in November of 2003.

Nonetheless, Dr. Robinson, noted that W.F. minimized her prior relationship with the sex offender, stating that "he wasn't all they say he is - he was nice to my kids." Testing disclosed that W.F. "tend[ed] to be ruled by her impulses and/or emotions." Dr. Robinson concluded that W.F. presented with "disturbed personality functioning," and that she demonstrated "significant impairments in her ability to control her impulses, empathize with others, exercise adequate judgment about her own safety and the safety of her dependents, and provide for the emotional and developmental needs of her children." Her condition was determined to be "not amenable to treatment" and she was judged "not fit to parent" the two girls. Although Dr. Robinson presented her opinions at the first trial, they did not form a basis for the court's decision.

While a further evaluation of W.F. by psychologist Robert Clyman was underway during the summer of 2004, the girls were returned to W.F.'s custody, and as a consequence, the evaluation was not completed. Dr. Clyman did observe, however, that W.F. was "somewhat narcissistic" in her views of motherhood, that she sanitized her history, and that he was troubled by W.F.'s relationship with the sex offender. He concluded that W.F. would need more parenting education, but also stated: "While [W.F.] did not present as likely to improve her skills quickly, she seemed reasonably open to new ideas."

W.F. was further evaluated in connection with the latest termination proceeding. Psychologist Charles Hasson rendered a report and testimony on behalf of DYFS. Psychologist Antonio Burr served as W.F.'s expert. Their views were markedly different. Hasson found W.F. to be short-sighted, not to learn from past mistakes, and to seek self-gratification. He testified that she had antisocial traits and exhibited impulsivity and poor decision making. In Dr. Hasson's opinion, W.F. was incapable of providing a safe home, despite her love for the girls. When asked his opinion regarding evidence of W.F.'s stable employment and housing and her divorce from C.P., Hasson testified that the evidence was merely "external" and that he would need to know a lot more to say that W.F. was a different person.

Dr. Burr, testifying on W.F.'s behalf, found her childhood and relationship to C.P. to have been dysfunctional, and her intelligence to be below average. However, he found W.F.'s condition, including her judgment, to have significantly improved. In response to cross-examination by counsel for DYFS regarding the extent of W.F.'s judgment, Dr. Burr testified:

Well, sir, the issue of rehabilitation is the most substantial factor and with rehabilitation come[s] a number of other variables, such as improvements in judgment, capacity to plan, capacity to think strategically, capacity to care for other people and to be attuned to their needs beyond your own, and so on and so forth.

. . . [M]y impression is that [W.F.] was in a bad way up to the time when she decided that she was going to straighten out her life and I think that the changes that she's made have been progressive, and with that I do expect that there have also been changes in the quality of her engagement with the outside world and people, her ability to protect herself from dysfunctional relationships, and I would expect that her judgment is as well improved.

Although Dr. Burr agreed that the Rorschach test disclosed "certain limitation . . . in the quality of her problem-solving, that [W.F.] did not make connections between different aspects of her experience as to insight," he did not agree that W.F. had failed to demonstrate improved judgment in connection with the care of her children. Dr. Burr testified:

I think that if you look at a person's actual life, everyday experience, and they're able to achieve a certain level of functioning, stable housing, a job, going to work every day, provide for another child, maintain reasonable relationships with people without interruption, then I would have to say that, in fact, she evidences an improvement in judgment.

III.

W.F. manifested poor judgment in maintaining her abusive relationship with C.P., until the couple separated in 2001 and divorced in 2002. Judgment was markedly lacking when W.F. commenced a relatively lengthy relationship with a known sex offender, convicted of abuse of a three-year-old child, and in or around February 2003, permitted the offender to reside in her apartment in the company of W.F.'s older daughter and son. The relationship was reported by C.P. to DYFS, which discontinued plans for reunification. The psychological report by Dr. Robinson of the evaluation conducted on February 9, 2004 indicates that W.F. minimized the danger of her relationship to the offender, stating "he wasn't all they say he is - he was nice to my kids." In his 2004 report, Dr. Clyman noted that W.F. had told him that she did not initially know the age of the victim, and believed the offender's professions of innocence, although her belief had changed.

Nonetheless, after W.F. had severed contact with the offender, a termination trial had occurred, and termination of parental rights had been denied, W.F. regained custody of her two younger daughters, Dana and Ruby.

Thereafter, the girls told C.P. that while living together with W.F. in Jersey City, their half-brother (fictionally, Chris), then eleven years of age, had exposed himself to both and had unsuccessfully requested that they perform fellatio on him. The girls refused, and no physical contact occurred. Additionally, the girls told their father that, while living in Pennsylvania, during the night, each had discovered Chris in their room attempting to rub his naked rear end in her face, but that each had pushed him away. Further, on one occasion, Chris had held Ruby in a choke hold until she threw up. C.P. also learned that, while at C.P.'s residence, Chris had made improper contact with the nephew of C.P.'s girlfriend while the two were sleeping together. DYFS was notified of these incidents, the claims were verified, and Dana and Ruby were removed from W.F.'s care and placed in the custody of DYFS on January 14, 2005. Both girls consistently stated that, because of Chris's threats, they had not informed W.F. of any of the incidents. W.F.'s older daughter, when questioned, stated that she had no knowledge of Chris's conduct, and that he had not made sexual advances toward her.

Dr. Hasson regarded W.F.'s failure to prevent sexual contact between Chris and the two girls as a further manifestation of W.F.'s lack of judgment and as evidence that she was unfit to parent Dana and Ruby. However, the record does not clearly establish that W.F. did so knowingly.

The record discloses that Chris was cocaine addicted at birth and that, by 2000, he was manifesting signs of emotional disturbance and hyperactivity. The April 25, 2000 psychological report by Harvey Block notes W.F.'s report of "communication problems" with Chris and W.F.'s concern regarding his hyperactivity. Contact sheets maintained by DYFS disclose that, on January 16, 2003, W.F. had reported suicide threats by Chris to DYFS, and had arranged counseling for him through Jersey City Medical Center. On February 27, 2003, W.F. reported that Chris was hospitalized at St. Mary for psychiatric evaluation. On October 1, 2003, Chris remained in counseling. Further incidents of misbehavior in school and threats of suicide occurred, which were reported by W.F. to DYFS on March 29, 2004. As a result, W.F. arranged additional counseling at school for her son, and DYFS sought to re-enroll Chris in a Big Brother program in which he had previously participated. W.F.'s move to Pennsylvania occurred in an attempt to remove Chris from undesirable and gang influences in Jersey City.

Following the removal of Dana and Ruby from W.F.'s custody in January 2005, W.F. sought counseling and residential placement for Chris from the Pennsylvania Child Protective Services, but received no assistance because the child was under the age of fourteen. As the result of lack of support and difficulty in finding an appropriate relative placement, Chris remained with W.F. in Pennsylvania for approximately seven additional months, before his placement with his maternal grandmother in New Jersey. During this period, W.F. suggested moving Chris to the attic so that she could regain custody of Dana and Ruby, but that plan was rightly deemed unacceptable. In the course of psychological examinations, W.F. complained of the Division's decision to remove the two girls from her custody, instead of Chris.

The records maintained by DYFS provide no explicit evidence that would demonstrate knowledge by W.F. of the sexual propensities of her son Chris, and they disclose an active effort by her to address his known psychiatric difficulties. However, in his report, W.F.'s psychological expert, Dr. Burr, stated that W.F. "related that while in school in Jersey City, [Chris] was involved in a sexual incident with another student, and that she reacted adequately by seeking treatment for him. She stated she advised the Division of this incident at the time." It is therefore clear that W.F. had some knowledge of sexual misconduct by Chris prior to the incidents with the girls. However, the record does not permit a determination of the nature of the conduct, when it occurred, whether it was the subject of the therapy that Chris received in New Jersey, whether it was in fact reported, and the response of DYFS to any report that was provided. Further, the record is inadequate to provide the basis for any accurate evaluation of the extent to which W.F. knowingly placed her daughters at risk while residing with Chris or the likelihood that she would do so in the future.

IV.

As a final matter, we review the bonding studies conducted in this matter to gauge the relationship between Dana and Ruby and their biological parents and to compare it to their relationship to their foster mother and her new husband. With the exception of the Division's expert, Dr. Hasson, and Dr. Robinson, whose bonding evaluations the trial judge rejected out of hand at the first trial, all psychologists who observed the interaction between C.P. and his two daughters found a strong and affectionate bond to exist. Dr. Hasson expressed a contrary view, finding that C.P. was "unable to engage the children in playing," and that during the session, he inappropriately attempted to "hold school." However, it was disclosed at trial that C.P. had initially objected to videotaping the bonding study, and it was suggested that his conduct, as well as that of the girls, may have been influenced by its recordation. Further, as the result of threats by C.P. to Hasson, apparently arising from claims of lack of informed consent, Hasson had attempted to return the file to DYFS, without drafting his reports, but had been instructed to complete the assignment. Hasson denied any conflict of interest as the result of C.P.'s actions, and denied that those actions influenced his report.

Interactions between W.F. and her daughters likewise disclosed a continuing emotional bond. At the time of trial, an investigator for the girls' law guardian testified that, in conversations with the two girls, both had expressed the desire to return home to their biological mother. Dr. Burr also reported the children's desire to return to W.F., although he found Ruby to be more eager to do so than Dana. The girls' foster mother, Dr. Burr concluded

is quite attached to [Dana] and [Ruby], and is very capable of providing for them a safe, protective environment, where their day to day needs are adequately addressed. Emotionally however, although comfortable in her presence, I did not observe the kind of emotional closeness that accrues when a foster parent has become a primary parental object, or a psychological parent to foster children. There is bonding to the extent that the children have come to rely on their foster mother for the satisfaction of their daily needs, but it seemed limited by the fact that these children did not seem solely focused on her to have their need for nurturing met by her.

When describing the bonding between the girls and W.F., Dr. Burr stated:

Throughout the session both [Dana] and [Ruby] were very talkative, and approached their mother repeatedly to engage her in play, show her toys, or initiate conversation. Both girls sought physical closeness to her, especially [Ruby] who often sat on [W.F.'s] lap. I noticed the girls also moved their toys from the corner area they occupied while with their foster mother, to the center of the room, creating a more inclusive space.

* * *

Both children seem quite attached to their mother, and act in a very easy, fluid way around her. There seemed to be "more room" for spontaneity, creativity and unexpected conversation between all of them, in contrast to what they had exhibited with the foster mother.

Dr. Burr concluded that there was "a clear bonding and attachment relationship" between the girls and W.F. Although the foster mother had met their daily needs for a considerable time, it was the doctor's opinion that "the girls still expect their biological mother to satisfy their physical and emotional needs from now on."

Dr. Hasson similarly found that the girls enjoyed W.F.'s company and regarded her as "sensitive to the fact that they wanted to play." He described W.F. as "loving and caring," and stated that "the children responded nicely to her." In contrast, he stated in the conclusion of his report that the interaction of the girls with the foster parents was "adequate." Nonetheless, Dr. Hasson was of the opinion that "bonding evaluations are not key determinants in this case" because '[b]oth biological parents have such substance and psychological impairment that neither could provide a safe environment for the children. Both parents are character disordered, limited cognitively, and while they genuinely love their children, are both unequipped emotionally and cognitively to provide a safe and nurturing environment for the girls. [W.F.] has no comprehension of the danger [Chris] could present."

At trial, the expert witnesses were asked what the effect of severance of the bond between the girls and their biological parents would be. Dr. Karen Wells, C.P.'s psychological expert, testified that an emotional bond such as that which existed between C.P. and his children could not be severed, but that contact could be broken. If that occurred, the effect would be manifested in a grief response. Dr. Wells stated:

First of all, the children would question why they have no contact and involvement. There would be a high possibility that there will be self-blame. They would view that they've done something inappropriate or wrong . . . .

She testified that the children were old enough to cognitively understand that they would not continue their relationship with their father, but "it would be painful, it would be emotionally, psychologically distressing. It would be akin to a death or a loss." And the harm would be enduring. In Dr. Wells' opinion, severing of the parental bond would do more harm than good.

Dr. Burr testified that the impact of termination on Ruby would be "very severe." He explained that Ruby

consistently expressed she wanted to return to her mother and I got a sense that her attachment to the foster mother was not that strong, from an emotional point of view. This is a very strong willed child, clearly dominant in her interactions with her older sister. . . . Very strong personality. Very, very strong character. And she's very, very attached to her biological mother.

Dr. Burr was of the opinion that the impact upon Dana would be less, because she had a "more ambiguous attachment" to W.F. at this point and that she identified with both her biological and foster mothers.

Despite his negative impression of the bonding between C.P. and the girls, Dr. Hasson testified that they would suffer "some type of loss" as the result of the severance of parental bonds that "could be overcome with the development of warm, supported relationship with other individuals who could communicate stability in the child's life, and that the child is loved." Although the doctor believed that the foster parents would be sensitive to the transition and would provide support, were parental ties to be severed, he stated that the girls would retain a presently existing "undertow of hostility" and would require significant amounts of treatment, both because the children would blame themselves for the termination and because they could be expected to act out against the foster parents. When asked whether he agreed with the testimony of Dr. Perdomo at the first trial that termination would cause severe and enduring harm, Dr. Hasson did not respond directly, stating only: "My testimony is, is that this is an extremely confusing case" because of the varying expert opinions. No expert testified to the effect of separation of the girls from their foster parents.

The record indicates that prior to the last termination proceeding, Dana had commenced to misbehave at school and was defiant and disrespectful at home. Following a report by Dana to a family member of corporal abuse by the foster mother (later determined to be unfounded), a February 18, 2005 contact sheet, describing a visit by a DYFS worker to the foster mother's home stated:

[The foster mother] told worker that because of the problems with the family she had considered asking the Division to place [Ruby] and [Dana] out of her home. She stated that she reconsidered it and she does not want the children to be moved. She said she wants to continue taking care of them. [The foster mother] stated that she now feels the children should, if possible, remain with their family. She stated that she does not want to adopt the children. [The foster mother] stated that the only way she would consider to adopt [Ruby] and [Dana] is if no other family member is able to take them.

A July 11, 2005 contact sheet reveals that the foster mother found Dana to be a "handful" and that things were not working out. She again sought to relinquish custody of Dana, indicating that she would like to keep Ruby. However, custody of both children has been retained. At trial, the investigator for the law guardian testified that the foster parents would adopt the girls if parental rights were terminated.

Although, at the time of trial, the foster mother had refused to commence counseling for Dana, stating that what the child needed was an intensive summer reading course, submissions by the law guardian after oral argument on appeal confirm that counseling commenced on January 5, 2007 and is now ongoing.

V.

At the conclusion of the trial, the Family Part judge determined that the four interrelated prongs of the best interest test had been met, and he therefore terminated the parental rights of C.P. and W.F. He found that the parents had harmed the girls by failing to provide them with a stable home and the sense of stability and security that such a home would foster. In the period from January 2000 when the girls had first been placed in the custody of DYFS to the present, the parents had maintained joint custody for only nine months, and W.F. had maintained sole custody for approximately four months. In finding the second prong to have been met, the judge concluded that neither C.P nor W.F. was psychologically fit to parent the two girls. He found the third prong to have been met by efforts directed by DYFS to stabilize the lives of the two parents and to provide counseling to the girls prior to their removal in January 2005. He stated:

I'm satisfied that the Division has attempted to stabilize the lives of [W.F. and C.P. C.P.], apparently, has not taken advantage of any of the recommendations for the anger management, counseling that indicates he's in a position to provide a stable home at this point. [W.F.], while she is in a position to provide a stable home for a child, she's not in a position to provide a stable home for these two children, based upon her psychological shortcomings, her [in]appropriate display of judgment in the past, and the period of time that the children have been in foster care.

When discussing the fourth prong, the judge stated that he was "not persuaded that there is such a strong, emotional bond with the children and the parents that severance of the contact would cause severe and enduring harm." Further, the judge accepted the opinion of Dr. Hasson that in this case, "stability, security, identity, permanency is the key factor." He declared that "[t]hese children have waited long enough." Having found permanency to be the paramount concern, the judge ordered severance to occur.

VI.

As we previously noted, the judge's determination that C.P. and W.F. had, through their conduct, harmed their two girls is unassailable. New Jersey Div. of Youth and Fam. Servs v. C.S., 367 N.J. Super. 76, 113 (App. Div.), certif. denied, 180 N.J. 456 (2004). We thus first examine whether the Division has carried its burden of demonstrating that the parents are unwilling or unable to eliminate the harm facing the child, and that the delay in permanent placement will add to the harm. N.J.S.A. 30:4C-15.1(a).

We agree with the trial judge that the burden with respect to C.P. has been met. As our prior recitation of the factual background of this case reveals, C.P. is intellectually challenged, functioning in the borderline retarded range. His employment, at best, was marginal in nature, and at the time of the trial of this matter and at various other times through the period of the Division's involvement, he has been unemployed. Homelessness has occasionally been a problem. Additionally, C.P. is prone to domestic violence and angry outbursts that, in the past, have included the children, and has declined to attend anger management training. C.P.'s failure to maintain contact with the girls through visitation - a failure manifested previously in connection with C.P.'s other three children - provides another ground for concern. We regard this evidence, together, to be sufficient to meet the Division's burden with respect to the second prong of the statutory test.

While recognizing our limited scope of review in matters such as this, Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974); Cesare v. Casare, 154 N.J. 394, 412 (1998), we do not reach the same conclusion when we review the evidence relevant to W.F. C.S., supra, 367 N.J. Super. at 112.

The present matter is somewhat unusual in that, despite the long history of involvement by DYFS and extended foster care, primarily in the same home, termination was not ordered until the children were approximately nine and eight years of age, respectively. Further, during that period, the girls maintained an emotional bond to W.F. (as well as C.P.), while, at least in the view of most psychologists, establishing a lesser, albeit significant, attachment to their foster mother. Additionally, in contrast to C.P., who does not appear to have been able to create stability in his life, W.F. has done so, remaining abstinent and obtaining an education, stable housing and steady employment. She has severed her relationships with unsuitable partners and has remarried a person who, as far as can be determined from the record, is regularly employed and otherwise qualified to provide care for the children. Despite the difficulties of travel from Pennsylvania to New Jersey, W.F. has consistently adhered to the schedule of visitation established in her case. Compare C.S., supra, 367 N.J. Super. at 114 (describing failure of birth mother to avail herself of opportunities offered by DYFS, non-compliance with court orders and conditions, failure to complete drug treatment and other programs offered to her, and failure to exercise visitation). Moreover, W.F.'s daughters, particularly Ruby, have expressed a preference to return to her care.

Despite these factors, Dr. Hasson, upon whose testimony the judge principally relied, concluded that W.F. was unfit to act as custodial parent for the girls, and regardless of the bond established between parent and children, the establishment of permanency, presumably through adoption by the foster parent, was the paramount consideration. We do not find Dr. Hasson's opinions to have been adequately supported by the record in this matter. First, the trial judge himself observed, following his review of the evidence, that "certainly there does not seem to be any negative evidence, information that would indicate that [W.F.] has not turned her life around completely." Second, although ultimately relying on the opinions of Dr. Hasson, the trial judge observed that he "would have to agree with counsel that some of Dr. Hasson's responses were less than direct" and that he spent a lot of time explaining his techniques, not their relationship to his conclusions. Indeed, the judge found Dr. Hasson's report, itself, to be "what you would call a net opinion."

The lack of support for Dr. Hasson's opinions was evident in the trial record. In his testimony, Dr. Hasson based his conclusion that W.F. was unfit to parent, in part, on test results that demonstrated that W.F. gave up easily in the face of frustration. However, when asked how that conclusion could be reconciled with W.F.'s consistent adherence to a visitation schedule that required her to travel from Pennsylvania on a bi-weekly basis, the doctor failed to answer the question, responding:

That's how she answered the test. That test doesn't have validity scales on there. It's just a - I don't just like to give tests that measure psychopathology so when I give a psychological assessment to someone, I also give one or two tests of normal personality. So I'll either give the 16-PF or the NEO. I'll have one adult rate the other party, there's two forms of that, but in any event, that's how she scored herself.

When confronted with evidence that W.F. had stabilized her life, Dr. Hasson said her accomplishments were merely "external things" and that he lacked information to draw further conclusions as to whether she was now a different person, capable of parenting. When asked if he agreed with the Division's expert at the prior trial, Dr. Perdomo, that W.F. "had made substantial progress with regard to herself," Dr. Hasson responded: "I don't know what he bases his data on. I don't know the facts."

In discussing the significance of Chris's sexual behavior in his evaluation of W.F.'s fitness, Dr. Hasson assumed knowledge of the risk on W.F.'s part, whereas evidence in the record of such knowledge is far from clear. As we have stated, the nature of Chris's sexual incident in school is undescribed, the response to it is not stated, and the potential risk to siblings posed by it is unknown. Although Dr. Hasson based his determination that W.F. was unfit, in part, upon W.F.'s failure to recognize the risk posed by this in-school conduct, there is nothing to suggest that he had additional information, lacking to us, that would permit the risk to be quantified. When Dr. Hasson was asked on cross-examination whether W.F. exercised good judgment in bringing Chris's condition, as manifested in school, to the attention of DYFS and seeking its help, he responded that he "didn't read the original documents, so [he did not] know what the whole context - that whole thing is." However, he acknowledged that if, in fact, help was sought, that was a "positive thing." Without any doubt, W.F. was unaware of Chris's advances toward the girls, and thus any conclusion based upon knowledge of that conduct lacks foundation.

Because W.F.'s alleged lack of judgment in permitting contact between Chris and the girls was likely a factor in the girls' removal and a key consideration in the Division's decision to again seek termination, what W.F.'s state of mind was is critical. As expressed by Dr. Barr, when asked how the incidents between Chris and the girls affected his evaluation of W.F.'s progress in overcoming her shortcomings, Dr. Barr stated:

If we assume that this incident occurred because she was indifferent to the needs of her daughters, to the safety of her daughters, then that would be a terrible lapse on her part. If we assume otherwise that there was a situation in her home that she was unaware of, and that this child acted with disregard and that she was not able to detect that was happening, not because she was indifferent to the children, but because she just didn't see it, then the conclusion is different.

Nevertheless, the evidence contained in the record, as we have described it, is insufficient to clearly support indifference on W.F.'s part.

Dr. Hasson was also asked whether it was significant that Chris had been placed in the custody of his grandmother in New Jersey and no longer had substantial contact with his mother in Pennsylvania. The doctor responded in a fashion that was not relevant to matters in issue, saying:

It's a sad case for the boy that he doesn't have contact with his mother, and I wonder what he's going through. He has lots of vulnerabilities.

When again asked for a response to the question of the impact of the evidence upon his evaluation of W.F., the doctor only answered: "It doesn't because - it just does not."

Further, the doctor was unable to support the conclusion in his report that both parents have "substance" impairments, stating that the reference was merely poor phrasing. An issue of bias also arises from Dr. Hasson's attempt to withdraw from the case as the result of C.P.'s threats and court action and the marked discongruence between his conclusions and those of the other experts.

Because Dr. Hasson, alone among testifying experts, found W.F. to be unfit to parent Dana and Ruby, because his opinions are poorly buttressed by the evaluations of other non-testifying psychologists, and because a foundation for his opinions, in crucial respects, is lacking, we cannot conclude that the second prong of the statutory test has been demonstrated by clear and convincing evidence.

As a final matter, although the record discloses that the Division made diligent efforts to provide services to W.F., at least until she lost custody of the girls in January 2005, and that relative placement is unavailable as an alternative to termination, thereby meeting the third statutory prong, In re Guardianship of D.M.H., 161 N.J. 365, 386-93 (1999), we are unable to reach the same conclusion with respect to the fourth prong, finding insufficient evidence in the record, as it pertains to W.F., that the termination of parental rights would not do more harm that good.

In this regard, even Dr. Hasson appear to have recognized the existence of an emotional bond between W.F. and her two daughters. However, he found the need for permanence to have trumped the bonding evidence.

We recognize the effect of the Federal Adoption and Safe Families Act of 1997 and the amendments to N.J.S.A. 30:4C-15 that conform New Jersey's standards to Federal law, effectively limiting the parental rehabilitative period to one year, N.J.S.A. 30:4C-15(d) and thereby ensuring rapid progress toward the goal of permanence. Nonetheless, cases must be judged on their individual facts. K.H.O., supra, 161 N.J. at 348. And in this case, statutory time guidelines have been manifestly exceeded. In this circumstance, we are unwilling to conclude as a matter of law that permanence should be the prevailing concern.

As a matter of fact, psychological evaluations of the two girls have demonstrated little obvious effect upon them as the result of a lack of permanence. We recognize that, in the period after her removal from W.F.'s custody in January 2005, Dana has begun to exhibit behavioral problems. However, no evidence demonstrates the origin of those problems, since neither of the girls has been psychologically evaluated since that removal occurred. Thus, any conclusion that permanence is a consideration for these girls that overwhelms all others lacks factual foundation. Further, we question whether permanence will in fact result from termination of W.F.'s rights. Evidence at trial suggested that the girls' foster parents remained willing to adopt. However, we find troubling the fact that, when Dana acted up or other family problems arose, the foster mother sought, more than once, to break the foster relationship and to end adoption plans.

In reaching his decision, the trial judge found insufficient evidence that the severance of the children's bond with their natural mother would do more harm than good. We can locate little significant support for that conclusion in the record, since W.F.'s expert, Dr. Barr, found that the impact of the termination upon Dana would be "severe" and Dr. Hasson, while refusing to directly address whether severe and enduring harm would result, nonetheless acknowledged that the children would need substantial psychological treatment, no matter what the result of the proceeding, recognizing that the girls would blame themselves if termination of their mother's rights occurred and would act out against their foster parents.

Turning to C.P., we are satisfied that termination of his rights to Dana and Ruby is in the children's best interest. Although C.P.'s devotion to his children was once unquestionable, evidence suggests that he has voluntarily severed his connection to them and has disappeared from their lives. Under these circumstances, a permanency plan that excludes him appears warranted.

In sum, our review of the record in this troubling matter satisfies us that the trial court's conclusions with respect to C.P. were well supported, whereas those with respect to W.F. were not.

We therefore affirm the order of termination with respect to C.P., reverse the order with respect to W.F., and remand for further proceedings.

 

The girls were placed in their present foster home on May 7, 2001.

The foster mother married after obtaining custody of the girls.

The dates of the relationship are unclear. However, no evidence of the offender's presence was found in W.F.'s apartment by DYFS on July 16, 2003, or thereafter.

But see Dr. Robinson's report, which states that W.F. "demonstrates little understanding about the psychiatric problems [Chris] is experiencing," while remaining compliant with recommended therapy and finding the medications prescribed for Chris to be "especially helpful."

The record additionally suggests that C.P. brought unspecified charges against Hasson in municipal court.

However, in his trial testimony, Dr. Hasson described the relationship between the girls and their foster parents as "gleeful" whereas their relationship with W.F. was not.

In his oral opinion at the conclusion of the first trial, the judge referenced another instance, in or around February 2003, in which the foster mother rescinded her commitment to adopt.

It is also noteworthy that Dr. Hasson assumed that fellatio had occurred and based his conclusions on the existence of such conduct, although the record presents no evidence of a completed act, but instead, rejection of Chris's advances by the girls.

Additional support for that conclusion arises from the absence of any psychological evidence that separating the girls from their foster mother would cause serious and enduring emotional harm.

(continued)

(continued)

38

A-5716-05T4

RECORD IMPOUNDED

June 4, 2007