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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6574-05T46574-05T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

H.D.,

Defendant-Appellant.

________________________________

IN THE MATTER OF V.D., minor.

_________________________________

 

Argued November 8, 2007 - Decided

Before Judges Cuff, Lihotz and Simonelli.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-21-06.

Beatrix W. Shear, Deputy Public Defender, argued the cause for appellant H.D. (Yvonne Smith Segars, Public Defender, attorney; Grace Eisenberg, Designated Counsel, on the brief).

Stephanie S. Anatale, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Christopher D. Ball, Deputy Attorney General, on the brief).

Phyllis Warren, Assistant Deputy Public Defender, argued the cause for V.D., minor (Yvonne Smith Segars, Public Defender, Law Guardian; Cynthia McCulloch, Assistant Deputy Public Defender, on the brief).

PER CURIAM

H.D. appeals from a Family Part judgment terminating parental rights to his child, V.D., and awarding guardianship of V.D. to the Division of Youth and Family Services (DYFS or Division) for the purpose of consenting to adoption. The guardianship judgment also terminated the parental rights of Z.D., the child's mother. Z.D. has not appealed that determination. In his appeal, H.D. maintains that the Division failed to prove, by clear and convincing evidence, three of the four interrelated elements necessary to end the parent-child relationship, as provided by N.J.S.A. 30:4C-15.1(a). Further, H.D. urges reversal of the trial court's decision arguing that the factual findings relied upon to reach the trial judge's legal conclusions are unsupported by the evidence in the record. After reviewing the record and the applicable law in light of the contentions advanced on appeal, we conclude that the trial court's findings are supported by substantial, credible evidence and its conclusions predicated on those findings are legally sound. Accordingly, we affirm.

Both the federal and state constitutions protect the integrity of the family unit. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 599 (1986). However, the fundamental right of a parent to enjoy a relationship with his child is not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999); In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999); Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982).

The State's role of parens patriae, historically imposes a responsibility to protect the welfare of children from the probability of serious physical, emotional or psychological harm resulting from the actions or omissions of their parents. N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 110 (App. Div.), certif. denied, 180 N.J. 456 (2004). See also N.J.S.A. 9:6-8.8a. Our Legislature has recognized that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). The best interest standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, and codified in N.J.S.A. 30:4C-15.1(a), requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:

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

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

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

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

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

These requirements are not discrete, but overlap to provide a composite picture of what may be necessary to advance the best interests of the children. The considerations involved in determining parental fitness are extremely fact sensitive and require particularized evidence that addresses the specific circumstances present in each case. K.H.O., supra, 161 N.J. at 346-48.

In our review of a decision to terminate parental rights, we must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record. N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 511 (2004); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993). Particular deference is afforded to decisions on issues of credibility. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). There is an exception to that general rule of deference: we expand the scope of our review where the issue to be decided is an "alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." J.T., supra, 269 N.J. Super. at 188-89. Despite such circumstances, deference will still be accorded to the trial judge's findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken. Ibid. With these standards in mind, we proceed with our analysis.

DYFS began its involvement with V.D. and her brother on January 26, 1998. School officials noticed that V.D. had scratches on her face and a bruise on her chest. DYFS interviewed H.D. and Z.D., who had been separated for approximately two months. It was clear that neither Z.D. nor H.D. participated in parenting. Z.D. suffered from mental illness, which prevented her from caring for the children. H.D., who had left the children in Z.D.'s care, was emotionally unstable and hospitalized after he threatened suicide.

DYFS took the children to Jersey Shore Medical Center for treatment. The medical examination, conducted during the ten-day hospital stay, revealed the children suffered multiple bruises, had limited socialization, were unbathed, and had been provided no dental hygiene. V.D. was diagnosed with autism and both children displayed developmental delays. The trial judge described the two children, then ages six and four, as "feral": they were incapable of language and would shriek and grunt to communicate; they would hit, bite and harm each other as play; they were not properly trained to use a bathroom or bathe; and they slept on the floor.

H.D. signed a voluntary Foster Home Placement Agreement on January 27, 1998, and DYFS placed the children in foster care on February 6, 1998. In July 1998, H.D. relocated to New York City. Initially, he did not maintain contact with the children, however, from January 1999 to May 1999, H.D. attended fifteen of twenty supervised visitation sessions. H.D. completed parenting skills classes and learned about autism. In its attempt to reunify parent and children, DYFS filed an interstate referral to transfer the case to Bronx, New York, where H.D. resided.

In May 1999, H.D. rescinded the voluntary placement agreement causing the Division to file its complaint to maintain custody, care, and supervision of the children. H.D. appeared at the initial court proceeding and attended a psychiatric assessment conducted by John J. Liccardo, M.D. Dr. Liccardo concluded H.D. suffered from an adjustment disorder with mixed emotional features, "which has been superimposed upon a Mixed Personality Disorder with passive-aggressive, paranoid and dependent traits." As a result, Dr. Liccardo opined that H.D. was "not capable of providing minimally adequate parenting" for either of the children. H.D. ceased visitation. He then informed the Division he was returning to Montenegro. When unable to contact H.D., the New York State Office of Children and Family Service closed the interstate case on August 24, 1999.

After a factfinding hearing held on December 7, 2000, Judge Villano determined the children suffered abuse and neglect by H.D. and Z.D., pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. The trial court ordered that the children remain in long-term foster care, subject to the Division's supervision. Z.D. was permitted to continue bi-weekly supervised visits and H.D., who maintained no contact with the Division, was restrained from visiting the children.

While in Montenegro, H.D. remarried and was expecting a child. H.D. returned to the United States on May 15, 2001. DYFS informed H.D. that he needed to file an application to modify the court order prohibiting his contact with the children. In May 2003, he filed a motion to re-open the litigation and seek visitation.

A different trial judge ordered H.D. to undergo a psychological evaluation, which was performed by Skender Kodra, Ph.D. on October 13, 2003. Dr. Kodra diagnosed H.D. with post-traumatic stress disorder, which had abated. Therefore, Dr. Kodra opined H.D. would pose no "significant risk of physical and psychological harm if his children were returned to him." In February 2004, H.D. commenced supervised visits with his son, who was residing at Mt. St. Joseph's residential treatment center. On November 30, 2005, H.D. regained custody of his son. During this time, H.D. had no contact with V.D.

The Division filed its complaint for guardianship of V.D., N.J.S.A. 30:4C-15, on January 6, 2006. At trial DYFS presented testimony from its case workers, who related DYFS's involvement with V.D., and the foster mother, who described V.D.'s integration into her family. Also, the Division presented its clinical psychological expert, Chester E. Sigafoos, Ph.D., who completed an assessment of H.D. on January 20, 2006, and performed bonding evaluations.

After interviewing H.D. and interpreting the results of clinical testing, which included the Bender-Gestalt perceptual motor examination, the Rorschach ink blot test, and the Millon clinical multiaxial inventory-III, Dr. Sigafoos diagnosed H.D. with the following psychopathological disorders: depressive disorder, narcissistic personality disorder, obsessive compulsive personality disorder, paranoid personality traits, schizotypical personality traits, and possible substance (alcohol) abuse. As a result, Dr. Sigafoos concluded H.D. "pose[d] a significant risk of harm" to V.D. and could not effectively assure her safety and well-being. Dr. Sigafoos also noted that due to H.D.'s "lack of insight, lack of motivation, and lack of commitment to change," his psychopathological disorders would be difficult to treat.

Dr. Sigafoos conducted bonding evaluations between V.D. and H.D., and V.D. and her foster parents. V.D. did not acknowledge H.D. as her father and stated she "did not know [him]." During the fourteen-minute bonding session, there was limited conversation and no interaction between the two, resulting in the expert's opinion that no bond existed between father and daughter. On the other hand, a very positive bonding relationship was observed between V.D. and her foster parents, whom V.D. calls "Mom" and "Big R." The resource family has provided psychological stability and physical safety for V.D. since her placement on February 6, 1998. In Dr. Sigafoos's opinion, separation from this family would cause "serious and enduring harm" to V.D. and she would suffer "[e]xtreme regression."

H.D. testified on his own behalf. He acknowledged that he had not visited V.D. for eight years, but stated that the Division prevented his contact. H.D. acknowledged he had little knowledge about autism and without proof, he would not agree V.D. needed special treatment. H.D. emphasized that V.D. was his daughter, implying that she belonged in his home. H.D. stated that he could "cure" V.D., as he had her brother, if she lived with him and his wife. H.D. believed V.D. misses him and that "love is more important for a child."

Dr. Kodra, who had provided therapy for H.D. over a number of years, testified on H.D.'s behalf. Dr. Kodra explained that when H.D. began therapy, he was drinking heavily and was "uncontrollable at time[s]." He attributed this conduct to H.D.'s difficulty in assimilating into American culture. He stated H.D. felt he was misunderstood and that DYFS had acted unfairly by taking the children. Based on the facts as related by H.D., Dr. Kodra offered his opinion that H.D. had overcome many obstacles and was able to parent the children. However, he conditioned his testimony in two ways: first, by time, limiting his opinion about H.D.'s psychological status to the report date of October 2003; and second, by circumstance, as he never viewed H.D. with the children. Dr. Kodra was unaware of V.D.'s autism and had no independent knowledge of either child's psychological or emotional needs.

Judge Villano concluded that the Division had satisfied, by clear and convincing evidence, each of the four statutory prongs. She entered a judgment terminating the parental rights of Z.D. and H.D.

On appeal, H.D. argues that the Division failed to sustain its burden to prove the second, third, and fourth prongs of the statutory test. First, he asserts he has overcome all past parenting deficiencies. He suggests that V.D. suffers mere behavioral problems that "are not so severe as to require institutionalization," as did her brother. H.D. points to his successful reunification with his son, and by analogy, argues that the same success would be achieved if V.D. were returned to his home.

Second, H.D. maintains he did not abandon V.D. Citing In re Guardianship of K.L.F., 129 N.J. 32, 34 (1992), he argues DYFS failed to make reasonable reunification efforts since his return from Montenegro. H.D. remains amenable to counseling services or training to resume the care of V.D.

Third, H.D. suggests the trial court failed to assess the harm resulting from the termination of the sibling bond between H.D. and her brother, and questions the foster mother's motivation in delaying her request to adopt V.D. We reject each of H.D.'s arguments.

In the course of the trial, V.D.'s mental, social, and psychological conditions were discussed at length. The child was described by Dr. Sigafoos as a "very special needs child," who has the cognitive and language skills of a five to six year old. She will need special care for the remainder of her lifetime. Dr. Sigafoos testified that H.D. "has an interest and a concern for his child, but he doesn't understand the severity of her problems. He thinks that he can help cure her. He can't. She needs specialized treatment and care." H.D.'s psychological issues prevent his understanding of V.D.'s needs.

DYFS's expert also stated that in the future V.D.'s emotional state and the demands of her care will change at puberty. Also, as she gets older she will manifest symptoms of schizophrenia, similar to those of her mother. As a result, V.D. requires a caretaker who can adapt to her changing needs. Unfortunately, H.D. is inflexible. He insists that his "authority [be] recognized" and that things must "be done his way." Dr. Sigafoos testified that H.D.'s narcissistic and self-centered ways show that he is more interested in his needs, so "if [V.D.] doesn't act the way he wants her to, then there's going to be significant problems." The "external stressors [on V.D.] will exacerbate the negative symptoms that she has and make her [condition] worse." Moreover, H.D. would not recognize the child's deterioration results directly from his conduct.

It is very clear that V.D.'s needs vastly differ from those of her brother, and the fact that H.D. satisfactorily fulfills his son's needs does not equate to his ability to provide for V.D. Judge Villano in her opinion expressed the concern that H.D. had not overcome the harm posed to V.D. as follows:

[T]here is no question that [V.D.] suffers from a significant autistic disorder and that will not be cured by the appearance of [H.D.] in her life.

Moreover[,] of concern to . . . this Court were [it] to reunify [V.D.] with [H.D.] and she made no progress and, in fact, began to decompensate from where she is, [H.D.'s] reaction to adversity, just as he did to [Z.D.], would be to walk away, to shun her, to leave her or shift her to Albania or shift himself to Albania with his family. This is what he did when he knew his wife was decompensating. And moreover, this is how he left his children with a woman [Z.D.] who was so far removed from being able to parent that it is almost inconceivable to think that he would leave two children in her custody.

In the face of true crisis, [H.D.] runs without regard to children or his wife, without regard to the safety or health of anyone else, and he places his needs above all others. It is pure ego, in the Court's opinion, for him to believe that [V.D.'s] needs can be cured by his simple appearance and his status as a father, not to mention that he has not had any time with her since 1999. And I believe and find that the Court's view is amply supported by the testimony of the only expert in this case who examined [V.D., H.D.,] the foster mom and the foster dad, and that's Dr. Sigafoos.

We concur with Judge Villano's determination. H.D.'s nine-year absence from the child's life, coupled with his unfamiliarity with the characteristics of autism and the needs of an autistic child, provide proof by clear and convincing evidence that H.D. was unable to eliminate the harm facing V.D. N.J.S.A. 30:4C-15.1(a)(2). A further delay in providing a permanent placement for V.D. will add to that harm. Ibid.

We also find unpersuasive H.D.'s argument that, like the mother in K.L.F., he never abandoned V.D., but it was DYFS that prevented his continued connection. "Abandonment requires a finding that parents, although physically and financially able to care for their children, willfully forsook their parental responsibilities." K.L.F., supra, 129 N.J. at 39; see N.J.S.A. 30:4C-15(d). Abandonment is willful or intentional. In re Adoption of Children by D., 61 N.J. 89, 94-95 (1972).

H.D.'s offered explanation for his failure to maintain contact with V.D. is inadequate. To begin with, he chose to leave the children in the sole care of their mentally ill mother, arguing that she prevented him from providing the children care. After DYFS initiated litigation, services were put in place, and an interstate transfer request was made to facilitate reunification with his children. H.D. failed to follow the steps necessary to regain custody of the children. Instead, H.D. departed for Montenegro to, in his words, "save himself." H.D. then remained in Europe for almost two years, citing immigration difficulties encountered by him and his new wife. However, during this time, he made little effort to communicate with the Division regarding his prospects for returning to New Jersey. When he finally returned, H.D. delayed his request to obtain visitation for another two years. Following the denial of his first request, he made no further efforts to visit V.D.

The facts of this matter do not parallel those of K.L.F. The trial court refused to terminate the parental rights of K.L.F.'s mother, concluding that after she executed a voluntary placement agreement, she had not abandoned her child. K.L.F., supra, 129 N.J. at 34. Contact and reunification were prevented because the mother was homeless for eighteen months. Ibid. When the mother established a stable residence, she initiated court action. Ibid. She was free of any psychological or other impediment to raise her child and it was determined that the child would not suffer psychological harm if removed from her foster parents and returned to her mother. Ibid.

Here, H.D. revoked the voluntary placement agreement. Instead of complying with the requirements for reunification, and the offered services, he left the country and did not again resume participation in the litigation for almost four years. We reject his assertion that the Division prevented his continued relationship with V.D. He chose to direct his energy and focus towards satisfying the needs of his son and did not act to assure contact with V.D. Now, V.D. is intensely bonded to her foster mother and, to her, H.D. is a stranger. V.D. has been part of her resource family for over nine years. Their motivation is grounded in their love for this child. Significant harm would result if she were separated from her foster mother.

"A child is not chattel in which a parent has an untempered property right" and should not "be held prisoner of the rights of others, even those of his or her parents. C.S., supra, 367 N.J. Super. at 110-11. The emphasis of the Federal Adoption and Safe Families Act of 1997, 42 U.S.C.A. 103(c)(4), has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being. See N.J.S.A. 30:4C-15; see also C.S., supra, 367 N.J. Super. at 111. V.D.'s right to a permanent, safe, and stable home rises above H.D.'s parental rights. K.L.F., supra, 129 N.J. 32, 43-44; C.S., supra, 367 N.J. Super. at 110.

Affirmed.

(continued)

(continued)

17

A-6574-05T4

RECORD IMPOUNDED

December 7, 2007