NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.M.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3560-07T4

A-3655-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.M.,

Defendant-Appellant.

___________________________________

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.M.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF B.N.M. AND E.R.M.,

Minors.

___________________________________

 

Argued January 5, 2010 - Decided

Before Judges Wefing, Grall and Messano.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Ocean County,

Docket Nos. FG-15-28-03 and FG-15-38-05.

Carol M. Willner, Designated Counsel, argued the

cause for appellant K.M. (Yvonne Smith Segars,

Public Defender, attorney; Ms. Willner, on the brief).

Christine B. Mowry, Designated Counsel, argued the

cause for appellant R.M. (Yvonne Smith Segars,

Public Defender, attorney; Ms. Mowry, on the briefs).

Stephanie Anatale, Deputy Attorney General, argued

the cause for respondent (Anne Milgram, Attorney

General, attorney; Lewis Scheindlin, Assistant

Attorney General, of counsel; Ms. Anatale, on

the brief).

Roberta Howe, Assistant Deputy Public Defender,

argued the cause for minors B.N.M. and E.R.M.

(Yvonne Smith Segars, Public Defender, Law

Guardian, attorney; Ms. Howe, on the brief).

PER CURIAM

R.M. and K.M. are the mother and father, respectively, of two girls, B.M. and E.M. B.M. is nearly fourteen years old, and E.M. just turned eight years old. R.M. and K.M. have appealed from a trial court judgment terminating their parental rights to the girls, and we have consolidated their appeals. After reviewing the extensive record in light of the contentions advanced on appeal, we affirm.

I

R.M. was fifteen years old when she met K.M.; he was in his late twenties and had already had two children with another woman, referred to in the record before us simply as Kathy. The record is unclear whether he and Kathy were ever married. He and Kathy were not able to support their first child, and she was adopted by K.M.'s brother and sister-in-law. The second died in infancy. They had a third child, another girl. R.M. was seventeen when she gave birth to B.M. She and K.M. married thereafter. R.M. was hospitalized for a period of time after B.M.'s birth, evidently suffering an episode of post-partum depression.

In late 2001, R.M. and K.M. were receiving therapy from Ann Herrmann as a result of an incident of domestic violence which had occurred at the end of the summer of 2001. During that summer, R.M.'s niece, who was ten to twelve years old, came to spend time with them. Although R.M. denied it in her testimony at trial, there was evidence that she was concerned about K.M.'s inappropriate behavior with her niece and sent the girl home. At trial, R.M. said the girl simply returned home because the visit had ended. Shortly after the girl's departure, K.M. beat R.M. so severely that she had two black eyes and bruises on her arm and wrist. R.M.'s aunt prevailed upon her to go to the police to seek protection. The officer with whom she met testified that R.M. told him that this was not the first time that K.M. had beaten her. Although R.M. ultimately declined to seek an order of protection, K.M. was charged with simple assault. It was this episode of domestic violence that led to R.M.'s counseling relationship with Ms. Herrmann.

On December 14, 2001, R.M. called Ms. Herrmann and told her that she was concerned that K.M. might be sexually abusing B.M. Ms. Herrmann told R.M. that she was obligated to notify the New Jersey Division of Youth and Family Services ("DYFS") of this report, and she urged R.M. to do so as well. At trial, Ms. Herrmann testified that R.M. told her that B.M. had told R.M. that K.M. was, in fact, abusing her. R.M. denied this at trial and said she had simply called Ms. Herrmann for advice on how best to talk to B.M. on the general topic of good touching and bad touching.

Ms. Herrmann immediately notified DYFS, and it promptly responded to the M.s' home and took R.M. and her daughter to the prosecutor's office to be interviewed. R.M., however, refused to permit B.M. to be interviewed unless she was present. Members of the prosecutor's office would not permit this and when R.M., who was seven months pregnant at the time, said she was leaving with B.M., she was told she would be placed under arrest. Eventually, B.M. was interviewed by Investigator Kenneth Hess, who had received some training in the interviewing of children in areas of alleged sexual abuse. That interview was videotaped, and the videotape is part of the record before this court. During it, when asked if anyone had ever touched her "pee-pee," she nodded yes and when asked who, responded, "Daddy." She said that he had put his hand into her "pee-pee" "a lot of times" and that it happened on the couch in the family room.

Following the interview, a DYFS worker met with R.M. and she agreed not to permit K.M. to have any contact with the girl while the investigation was conducted. She and B.M. went to stay with a relative for a short period of time after which K.M. vacated their house, and R.M. and B.M. returned home. K.M. has not seen B.M. since, a period of more than eight years.

The police contacted K.M. that same evening, and he voluntarily went to the station. He denied ever touching B.M. inappropriately and said that R.M. must have encouraged B.M. to make the charge.

DYFS arranged for B.M. to be evaluated at the Dorothy B. Hersh Regional Child Protection Center, where she was seen by Dr. Gladibel Medina. Dr. Medina asked B.M. if anyone had ever touched her in a way that made her uncomfortable, and she immediately responded, "Daddy." She was unwilling to describe what happened but drew a picture which Dr. Medina described in the following manner:

[B.M.] proceeded to draw a girl with a pink crayon and said that the girl was her. Then she drew another figure in green and said that it was "daddy". Then she drew a big line from the green figure's right hand all the way to the pink figure's body and at the same time said "he put his hand inside the front part[."]

Dr. Medina also conducted a physical examination; she found no signs of any traumatic injury or sexually transmitted disease.

DYFS arranged for counseling for R.M. and B.M. through Family Preservation Services ("FPS"). FPS is a program whose goal is to keep families together and prevent placement; it provides short-term assistance, not long-term counseling. An FPS staff member, Sharon Baranowski, a licensed clinical social worker, met with R.M. and B.M. twelve times from December 2001 through January 2002. She wrote a very favorable discharge summary, expressing the view that both R.M. and B.M. displayed good coping skills, and R.M. was a "competent, loving and considerate mother . . . ." In her testimony Ms. Baranowski admitted she had limited interaction with B.M., did not raise the issue of sexual abuse with B.M., and did not consider herself an expert in diagnosing sexual abuse.

In February 2002, R.M. gave birth to E.M. K.M. was at the hospital for her birth.

In April 2002, K.M. was arrested and charged with aggravated sexual assault, N.J.S.A. 2C:14-2(a); sexual assault, N.J.S.A. 2C:14-2(b); and endangering the welfare of a minor, N.J.S.A. 2C:24-4. R.M. posted his bail, which was set at $100,000. We are informed that a condition of his bail was that he have no contact with B.M. The record before us contains a subsequent Accusation, issued in March 2003, charging K.M. with one count of child abuse or neglect of B.M. Also in March 2003, K.M. was admitted into the county's pre-trial intervention program ("PTI"), which he completed in April 2006. The record before us contains no explanation of the reasons why the prosecutor's office elected not to proceed to prosecute the more serious charges.

At the time of his arrest, K.M. waived his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and agreed to answer questions. He initially denied touching B.M. in her vaginal area but later said he did place ointment on her vagina. He said he did so because B.M. would wet her bed during the night and would develop severe rashes as a result. He also told the police that he and B.M. would play a game called "Stand It" in which he would tickle B.M. on her inner thighs until she would say she could not "stand it" any longer. He also told the investigator that B.M. would often make up stories and that he and R.M. would not permit her to receive counseling for sexual abuse because that would make her believe that she had been abused.

R.M. adopted this position. She steadfastly refused to permit B.M. to participate in sexual abuse counseling and in August 2002 told the DYFS caseworker that the allegations against K.M. were untrue.

The children were removed from R.M.'s care in October 2002. The DYFS caseworker, Brooke Arnold, was scheduled to visit R.M. and the children in the late afternoon of October 16, 2002. When she arrived at work that morning, she found twenty-three voicemail messages from R.M. She testified that the tone of the messages became increasingly agitated, as opposed to the flat affect R.M. had previously expressed in their conversations. They also became increasingly hostile. Because of the number of these messages and their tone, she consulted with her supervisor. They decided that Ms. Arnold should not wait until the late afternoon appointment but should move up the visit to make sure the children were safe. They also decided that another DYFS worker, Bonnie Thornbury, should accompany her.

In her testimony, R.M. admitted making a number of telephone calls that morning, but said there were no more than eleven. She said she was calling to try to cancel the day's appointment because she was not feeling well.

When Arnold and Thornbury arrived, R.M. was feeding the baby, E.M., and B.M. was in school. Arnold and Thornbury testified that R.M. became extremely agitated at their arrival, to the point that they became concerned about her mental state. Arnold told R.M. they would not leave unless she agreed to submit to a psychiatric screening and R.M. acceded. Arnold contacted Psychiatric Emergency Screening Services ("PESS") at Kimball Medical Center, and Stuart Cohen was dispatched to the house. Cohen is not a physician or a psychologist but was trained in psychiatric screening. He spoke with R.M. and then told Arnold and Thornbury that he did not find R.M. to be a danger to herself or to others. In the report he prepared, he described her appearance as "restless, anxious, angry" and her speech as "pressured." He noted that her reasoning and judgment were "fair" and her insight "poor" and recommended she receive outpatient treatment. There is no indication in the record that he expressed any opinion on her ability to care for the children, as opposed to the standard for recommending her involuntary commitment. N.J.S.A. 30:4-27.2. R.M. refused to execute a case plan. Arnold consulted with her supervisor, who told her that she did not have sufficient grounds to remove the children, and she and Thornbury departed.

The following day, October 17, DYFS received a call from the police, who were concerned about R.M.'s mental state. R.M. had made several 9-1-1 calls to the police, first expressing concern about B.M's safety. B.M. was in school; the police went to the school and found nothing of concern with respect to B.M. In her later 9-1-1 calls, R.M. said she was concerned that E.M., who was approximately eight months old, had sand in her eyes. At trial, R.M. said she was concerned because a relative in the past had told her that she had damaged her eyes by rubbing them when she had sand in them. R.M. said that she was afraid that E.M. might have gotten sand in her eyes. The police took R.M. and E.M. to the hospital and Arnold and Thornbury met them there. E.M. was examined at the hospital, and her eyes were found to be fine.

In the Referral Response Report that Arnold later prepared, she wrote that when she arrived at the hospital, the triage nurse in the emergency room described R.M.'s behavior when she arrived as irrational. The nurses' notes, referring to R.M.'s later conduct, state that "no inappropriate conduct" was observed. The physician's record, however, notes that the police had reported R.M.'s behavior as "bizarre" and that they were requesting a DYFS evaluation.

When Arnold and Thornbury arrived at the hospital, K.M. was there. The two DYFS workers met with R.M. and K.M. and told them that DYFS was going to temporarily place the children because of its concerns about R.M.'s mental state. Arnold outlined that the couple could agree to a fifteen-day temporary placement or DYFS would seek court authorization for an emergency removal. Arnold explained that DYFS had contacted K.M.'s brother and sister-in-law, who had agreed that the two girls could stay with them. She said that DYFS had serious concerns about R.M.'s mental state. K.M. said that R.M. was seeing a psychiatrist, but he did not know the doctor's name. K.M. was willing to sign a consent to this temporary placement, but R.M. resisted. After the two had a chance to talk privately, however, R.M. agreed to do so. B.M. and E.M. went to their uncle and aunt's house that evening.

Six days later, on October 23, 2002, R.M. and K.M. revoked their consent to this placement. DYFS then filed an order to show cause, and the court awarded custody of the children to DYFS.

B.M. and E.M. remained with their relatives until January 2003, when they asked that the girls be removed. They went to a foster home for only a few days; E.M. was so distressed the foster mother requested they be placed elsewhere. They returned to their uncle and aunt until April 2003, when they went to another foster home, where they have resided ever since. According to the record presented to us, their foster mother is committed to adopting both girls.

II

Before proceeding further, we are compelled to note that our review of this matter has been hampered by the protracted nature of the proceedings below. As we noted, B.M. and E.M. were removed from their parents' custody in October 2002, and DYFS filed its complaint under Title 9 on November 11, 2002. The fact-finding hearing to determine whether B.M. and E.M. were abused and neglected within the meaning of Title 9 commenced on February 19, 2003; it did not conclude until nearly six months later, in August 2003. The trial court did not issue its decision until December 2003, ten months after the hearing started. In its decision, the trial court stated that DYFS had not presented sufficient evidence to permit a finding that K.M. had sexually abused B.M. It was satisfied, however, that both parents had displayed sufficiently poor judgment in their responses that a finding of abuse and neglect was warranted.

In January 2005, more than a year later, the trial court conducted a two-day permanency hearing. At that hearing, DYFS presented additional evidence in support of its contention that K.M. had sexually abused B.M. and that R.M. had failed to protect her. At the end of that hearing, although the trial court declined to make a specific finding as to whether K.M. has sexually abused B.M., it concluded that DYFS's plan of termination of parental rights, followed by adoption by the girls' foster mother, was appropriate. It directed DYFS to file its guardianship complaint, which it did on March 7, 2005.

Trial of the guardianship matter did not commence until August 1, 2006, and testimony was not concluded until August 2007. The trial court did not give its opinion until October 3, 2007. With the extended breaks that took place between trial dates, it is not at all surprising that the parties and the trial court at times had difficulty in keeping track of what had occurred at prior days. One of the results of these delays is that the parties have placed before us the records of what occurred in all three proceedings, significantly adding to the burden of reviewing this matter. The reasons for these extensive delays are not completely apparent from the record before us; we are satisfied, however, that just as no one party is entirely at fault, no one party is blameless.

At the guardianship trial, DYFS presented two expert witnesses, both clinical psychologists, Jesse Whitehead, Jr., Psy.D., and Chester E. Sigafoos, Ph.D. Dr. Whitehead performed a psychological evaluation of K.M., as well as a bonding evaluation of K.M. and R.M. with E.M. Dr. Sigafoos conducted a psychological evaluation of R.M. and a bonding evaluation of B.M. and E.M. with their foster mother. He attempted to perform a bonding evaluation of B.M. with R.M., but it had to be terminated almost immediately because of the girl's distress.

Dr. Whitehead noted in his report of his psychological evaluation of K.M. that he

failed to show any signs of remorse for [B.'s] traumatic experiences resulting from her actual, perceived or otherwise perceptive encounters with being uncomfortably touched. No documented indications were encountered, by this examiner, which suggest a level of care and concern at assisting in his daughter's recovery through remorseful involvement and in seeking care for her is found.

He concluded that "neither parent individually nor both parents collectively appear capable of assuring necessary care and safety for these youngsters."

In cross-examination, Dr. Whitehead was confronted with the fact that the materials DYFS sent to him to review in advance of the evaluation were incomplete; DYFS had provided him with the first portion of the trial court's findings and conclusions at the end of the abuse and neglect proceeding but did not include the section in which the trial court concluded DYFS had not presented sufficient evidence to permit a finding that K.M. had in fact sexually abused B.M. Dr. Whitehead testified that the omission did not affect his opinion because he had not proceeded from the assumption that K.M. had committed such abuse. While he agreed, for example, that he would not expect K.M. to express remorse for an act he had not committed, he considered it remarkable that K.M. expressed no concern for the psychological distress B.M. had experienced over the course of time.

Dr. Whitehead conducted the bonding evaluation of K.M. and R.M. with E.M. on August 4, 2006. By that time, E.M. had resided with her foster mother for more than three years. K.M. and R.M. had had weekly visitation with E.M. from shortly after the initial removal. Based upon his observations, Dr. Whitehead wrote in his report that a recognizable bond did exist between E.M. and her parents but that it was rather weakly developed in light of the fact that she had spent only the first eight months of her life "in daily physical contact" with them. Dr. Whitehead testified that in his opinion, E.M. would not suffer irreparable psychological harm if the parental rights of K.M. and R.M. were terminated.

Dr. Sigafoos conducted a psychological evaluation of R.M. in June 2005. Dr. Sigafoos noted in his history that R.M. never knew her biological father and that her mother had bipolar disorder. R.M. was raised by her grandmother. He noted that R.M. had reported during a different evaluation that she had been sexually abused as a child. R.M. denied that at trial. He diagnosed R.M. as having dependent personality disorder, narcissistic personality traits and obsessive-compulsive personality traits. In his report, Dr. Sigafoos said that R.M. had "numerous psychopathological disorders and conditions that interfere with her ability to effectively parent her children, and pose a significant risk of harm to the children if untreated."

Dr. Sigafoos also conducted a bonding evaluation of B.M. and R.M. in March 2006; B.M. was nine years old at the time. We consider it important to set forth at length his description of the evaluation:

Before the child arrived the client [R.M.] asked if she could pay for her own evaluation that would be used by the Division. The examiner told her that the Division retained the examiner's services, and that would be the evaluation that the Division would honor. She was encouraged to talk to her case worker for further clarification.

She persisted and wanted to video or tape record the evaluation. The examiner told her this was not allowed. The client was extremely paranoid, devoid of feeling or emotions, and very rigid in her orientation processes. When questioned if she wanted to proceed with the evaluation she thumbed through a magazine, cursorily looking at the examiner and saying "yes" with no further comment.

It was explained to her that a bonding evaluation examines the interactive process that takes place between a child and caretaker. This was an observational study and she need interact with the child as she normally does. It was further explained that if the child showed any signs of distress the examiner would assess the situation, and if necessary to prevent distress to the child, terminate the evaluation. She said she understood these parameters.

The child arrived and even before going into the evaluation told the examiner that she "don't want to be here[."] The examiner explained the purpose of the evaluation and encouraged her to participate. She agreed.

The client sat in the play room reading a magazine. The child entered the room, stood next to the doorway the entire time, and immediately said[,] "I don't want to be here[."] The client smiled and ignored her, continuing to look at the magazine. The client showed no emotion.

The child said "I don't love you anymore . . . . I want to leave here[."] The client responded "that's interesting[."]

The child's level of observable distress increased. She repeated to the examiner[,] "I want to leave[."] She refused to interact with her mother, standing in the door way with her coat on ready to leave as soon as she could. No eye contact took place from the client to the child. The client only looked at the magazine.

The mother showed no reaction to the child's distress. When the child said these things the mother said "that's nice" and continued to read a magazine she had. She did nothing to comfort the child or try to effect any interactive pattern with the child. The mother was very paranoid, aloof, and show[ed] no empathetic response.

The client, totally oblivious to what was happening to the child, asked the examiner how long the evaluation was for. She was told between 45 minutes and one hour. The client turned to the child and said[,] "well I guess you can [sic] back in 45 minutes[."] The child was extremely distraught by this.

He also conducted a bonding evaluation of B.M. and E.M. with their foster mother in September 2005. He found a "very healthy attachment bond[.]" He concluded his report in the following fashion

The children are securely attached to the current caregiver and will suffer serious and enduring harm, if not allowed to have a continued relationship with the client. The children will suffer a grief and separation reaction if removed from the current caregiver, and the biological mother does not have the capacity to help them to recover from this loss. The children will suffer serious and enduring harm.

Parental reunification:

Positive factors: None

Negative factors: Risk of harm to child is high in that the biological parents are not cognizant of safety, security and developmental needs of child. Unstable in that elements of consistency, continuity, predictability and reliability were absent.

III

On appeal, K.M. raises the following arguments:

I DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE EACH OF THE FOUR PRONGS OF [N.J.S.A.] 30:4C-15.1(a) AND [K.M.]'S PARENTAL RIGHTS SHOULD BE RESTORED.

A. The Division Failed To Establish By Clear And Convincing Evidence That Neither [B.M.]'s Nor [E.M.]'s Health And Development Have Been Harmed By Their Relationship With [K.M.].

B. The Court Erred In Finding That [K.M.] Is Unable Or Unwilling [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.

II. BECAUSE THEY WERE BASED UPON BIASED, INCOMPLETE, AND UNSUPPORTED FACTUAL EVIDENCE, THE EXPERT OPINIONS RENDERED BY DR. MONACO, AND DR. WHITEHEAD ARE NOTHING MORE THAN "NET OPINIONS" THAT MUST BE EXCLUDED UNDER THE NEW JERSEY RULES OF EVIDENCE, RESULTING IN THE DIVISION'S FAILURE TO PROVIDE THE CLEAR AND CONVINCING EVIDENCE THAT IS REQUIRED TO SATISFY THE FOUR PRONGS OF [N.J.S.A.] 30:4[C-]15.1(a), AND, THEREFORE, [K.M.]'S PARENTAL RIGHTS MUST BE REINSTATED.

III. THE COURT ERRED IN ADMITTING THE TITLE 9 TRANSCRIPTS AND PRESUMED THE EVIDENCE MEETING THE LOWER PREPONDERANCE OF THE EVIDENCE STANDARD ALSO MET THE CLEAR AND CONVINCING STANDARD OF PROOF WITHOUT FURTHER INQUIRY.

IV. THE APPROPRIATE STANDARD OF REVIEW IN THIS CASE IS DE NOVO WITH REGARD TO DR. MONACO'S EXPERT TESTIMONY DELIVERED IN THE TITLE 9 PROCEEDINGS.

V. BECAUSE [K.M.] WAS NEVER CONVICTED OF ANY SEXUAL ABUSE CHARGES, AND BECAUSE THE ALLEGATIONS OF SUCH ABUSE WERE ERRONEOUSLY SUBSTANTIATED BY DYFS, [K.M.]'S NAME MUST BE PURGED FROM THE CENTRAL REGISTRY OF ABUSERS.

In addition, R.M. raises the following contentions:

POINT I

KNOWING VIOLATIONS OF MANDATED TIME LINES DEPRIVED R.M.M. OF HER CONSTITUTIONAL RIGHT TO RAISE HER CHILDREN, GUARANTEEING THAT THEY WOULD BECOME BONDED TO THE FOSTER PARENT AND ALLOWING THE FOSTER PARENT'S ANXIETIES [AND] FEARS ABOUT R.M.M. TO BE INSTILLED IN B.N.M.

Not Raised Below

POINT II

THE TRIAL COURT ERRED IN ACCEPTING PSYCHOLOGICAL AND BONDING REPORTS AND TESTIMONY FROM DR. CHESTER SIGAFOOS, WHO ACKNOWLEDGED HIS BIAS IN FAVOR OF THE DIVISION.

POINT III

APPLYING A PREPONDERANCE OF THE EVIDENCE STANDARD IN A GUARDIANSHIP MATTER IS ERROR. INCORPORATING IN THE DECISION JUDGE GRASSO'S AND HIS OWN TITLE 9 FINDINGS IS ERROR. THE ELEMENTS OF N.J.S.A. 30:4C-15[.]1a ARE NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

Parents have a fundamental constitutional right to enjoy a relationship with and raise their children. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). However, that constitutional protection is "tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). That balance is achieved through application of the "best interests of the child standard." K.H.O., supra, 161 N.J. at 347. "In particular, 'parental fitness is the key to determining the best interests of the child in parental rights termination cases.'" J.N.H., supra, 172 N.J. at 471 (quoting In re Guardianship of B.L.A., 332 N.J. Super. 392, 402 (Ch. Div. 2000)).

Under N.J.S.A. 30:4C-15.1(a), DYFS can initiate a petition to terminate parental rights on the grounds of the "best interest of the child" if each of the following elements is proven by clear and convincing evidence:

(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.

The statute "prescribes an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999).

Transferring guardianship to the State terminates all parental rights of the natural parents, permanently cutting off the relationship between the children and their biological parents, and is a prerequisite to a child being adopted. In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992). "When the child's biological parents resist the termination of their parental rights, the court's function will be to decide whether the parents can raise their children without causing them further harm." Id. at 10.

Generally, the proofs in termination cases focus on "past abuse and neglect and on the likelihood of it continuing." Ibid. "The burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." Ibid.

The scope of an appellate court's review of a trial court's decision to terminate parental rights is limited. J.N.H., supra, 172 N.J. at 472. A trial court's findings of fact "are entitled to great deference and will not be disturbed on appeal unless those findings are not fairly supported by adequate, substantial, and credible evidence." Lawson Mardon Wheaton, Inc. v. Smith, 160 N.J. 383, 403 (1999) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)).

A

K.M.'s first contention on appeal is that the trial court erred in finding that DYFS established the first prong. His argument consists of an assertion that R.M.'s initial conversations with B.M. with respect to good touching and bad touching irremediably tainted all subsequent conversations with the child. Our review of the record, and in particular the sections to which he has directed our attention, do not support this assertion.

K.M. also argues that the interviews of B.M. that were conducted by representatives of the prosecutor's office were flawed. K.M. makes generalized complaints about these interviews but points to nothing specific which would lead us to reject them. We have conducted our own review of these tapes and find none of the improper methods condemned by the Supreme Court in State v. Michaels, 136 N.J. 299 (1994), upon which K.M. relies.

The harm required to satisfy the first prong need not be physical, and emotional or psychological harm to children as the result of the action or inaction of their biological parents can suffice. In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986). Moreover, "[a] parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." D.M.H., supra, 161 N.J. at 379. The Supreme Court discussed what constitutes "harm," in the context of the first prong of N.J.S.A. 30:4C-15.1(a)(1), in K.H.O., supra, 161 N.J. at 348:

Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship. . . . [T]he best interests standard does not concentrate on a single or isolated harm or past harm as such. Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development.

In view of that, we find K.M.'s argument singularly unpersuasive. The trial court noted in its opinion that K.M. has, throughout these extended proceedings, expressed "[a]bsolutely no concern, no sympathy, no compassion for the child and the situation that the child was put in." As we noted earlier, Dr. Whitehead commented on this complete lack of empathy on K.M.'s part. This lack of care and nurture constitutes harm for purposes of the statute and demonstrates his unwillingness to act to eliminate that harm.

K.M. argues that DYFS failed also to establish the second prong. He sets forth two reasons: that DYFS never established harm in the first instance, and his alleged willingness to cooperate and remedy inappropriate behavior. His first reason has no merit in light of our analysis of the harm done to B.M., which we have just set forth. In support of the second, he points to his participation in PTI. That, however, cannot erase his consistent refusal to participate in counseling and therapy and his repeated failure to participate in evaluations. That refusal, moreover, made it impossible to reunite the family, thus harming E.M.

We reject K.M.'s second argument, that the trial court erred in admitting the expert opinions of Dr. Whitehead and Dr. Louis Monaco because they were net opinions. An expert's opinion must be based upon "facts or data . . . perceived by or made known to the expert at or before the hearing." N.J.R.E. 703. An expert's bare conclusion, however, unsupported by factual evidence, is inadmissible as a "net opinion[.]" Creanga v. Jardal, 185 N.J. 345, 360 (2005).

K.M.'s challenge to Dr. Whitehead's opinions in this matter rests on his contention that Dr. Whitehead based his opinions on the factual premise that K.M. had sexually abused B.M. As we have noted earlier, however, this is not an accurate characterization of Dr. Whitehead's testimony. While we find no excuse for DYFS's conduct in sending an incomplete version of the trial court's opinion with respect to the abuse and neglect proceedings, Dr. Whitehead's testimony made clear that the omission did not affect his opinions.

Dr. Monaco is a psychologist at the Dorothy B. Hersh Regional Child Protection Center who testified during the permanency hearing. Although he did not testify again during the guardianship trial, the transcripts of that permanency hearing were admitted into evidence during the guardianship trial. K.M. argues that Dr. Monaco's opinion should not have been admitted for the same reason he challenged Dr. Whitehead's, that Dr. Monaco assumed that K.M. had abused B.M. Dr. Monaco, however, was clear during his cross-examination that even without regard to the allegations of sexual abuse, he would still have concerns about K.M.'s ability to effectively parent and that his recommendations would remain the same. K.M.'s characterization of the testimony of these two experts as net opinions is not supported by the record.

K.M. also challenges the decision of the trial court to admit into evidence at the guardianship proceedings, the record created during the Title 9 proceedings. We see no error. N.J. Youth & Family Servs. v. K.M., 136 N.J. 546, 552, 559-60 (1994) (recognizing the overlapping proof of a Title 9 action with a Title 30 action). The testimony offered at the Title 9 proceedings fits within the criteria of N.J.R.E. 804(b)(1) testimony in prior proceedings and not only were the parties the same, the attorneys were as well.

The basis of K.M.'s objection is the differing standards of proof utilized in the two proceedings. The trial court in its oral opinion, however, recognized that clear distinction. The question it was called upon to decide at the end of the Title 30 proceedings was whether DYFS had established its case by clear and convincing evidence. The trial court properly answered that question by canvassing the entire record before it; it was not called upon to decide whether the testimony of a particular witness satisfied the clear and convincing burden of proof.

K.M.'s last two points do not require extended discussion. He contends that we should review Dr. Monaco's testimony de novo, in particular, Dr. Monaco's use of the Adult Sex Offender Risk Assessment Schedule ("ASORAS"). Other witnesses testified that this assessment should not be used on an individual who had not been convicted of a sex offense. We have already noted, however, that the testimony of Dr. Monaco and Dr. Whitehead was not dependent upon a finding that K.M. had sexually abused B.M. K.M. finally contends that his name should be removed from the Central Registry of Abusers. The record before us contains nothing with respect to that issue--when, if ever, his name was placed in the Registry, when he was notified of that, and when, if ever, he filed an administrative challenge. The judgment before us on appeal is the judgment of October 3, 2007, terminating the parental rights of K.M. and R.M. It contains no provision with respect to placing K.M.'s name on the Central Registry. We thus decline to address the merits of that contention.

B

We turn now to the arguments put forth by R.M., the first of which is that the failure to comply with the mandated time lines to complete the proceedings deprived her of her constitutional right to raise her children. We have set forth earlier in this opinion the inordinate delays that were encountered at each step of these proceedings, delays for which no explanation is provided and which cannot be countenanced.

They do not, however, in our judgment, provide any grounds upon which to reverse the judgment of the trial court. In our review of the transcripts of the guardianship trial, for instance, there is no indication that defendant expressed any concern to the trial court as delays were encountered. And, as the law guardian notes in her brief, many of the delays are fairly attributable to defendants, who did not produce timely expert reports. Defendants did not present an expert's report, for instance, until nearly six months after guardianship trial commenced.

Delays were also encountered as a result of K.M.'s failure to appear in a timely manner for a psychological evaluation. K.M. and R.M. presented a unified defense, and she may not now seek to evade the consequences of his lack of cooperation.

In her second point, R.M. contends the trial court erred in accepting the testimony of Dr. Sigafoos who, she argues, had an admitted bias in favor of DYFS. Although Dr. Sigafoos admitted that the great portion of his practice consisted of referrals from DYFS, that did not require that his testimony be precluded. It was one factor for the trial court to weigh, among many, as it considered the credibility of the various witnesses who had appeared before it.

R.M. also challenges the trial court's decision to incorporate the Title 9 proceedings into the Title 30 action. We have already addressed that argument; R.M. presents nothing beyond that which K.M. also has argued, and there is no need to burden this opinion further in that respect.

R.M. also argues that DYFS did not establish the four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. We disagree.

We have previously set forth the four elements DYFS was required to establish. We shall not repeat them here. We are satisfied, after a careful review of this record, that DYFS did establish each of the four by clear and convincing evidence.

When B.M. first made an allegation that K.M. had sexually abused her, R.M. refused to seek sexual abuse counseling for her daughter. Although she insisted that she acted only because she wished to select the counselor to treat her daughter, the record contains no evidence that she made any efforts in that regard. While her desire to have involvement in the selection of her daughter's therapist may be entirely understandable, her failure to seek treatment for her daughter is not. R.M. has proceeded in this matter on the basis that K.M. never abused B.M. While R.M.'s loyalty to her husband may be understandable, her failure to recognize that her daughter needed help (a need that was perhaps even greater if the allegations were not true) is not. Her failure in this regard caused harm to B.M., and by extension to E.M. since that led to DYFS's placement of both children in foster care. N.J.S.A. 30:4C-15.1(a)(1).

Within portions of her brief, R.M. appears to challenge the sufficiency of the findings made at the conclusion of the Title 9 proceedings. Those findings and conclusion, however, are not properly before us and may not be challenged in the context of this appeal. K.M., supra, 136 N.J. at 562 (noting that "a Title 9 abuse-or-neglect action is a separate cause of action from a Title 30 termination action. An appeal in one does not grant the Appellate Division jurisdiction over the other.").

We are also satisfied that DYFS has established by clear and convincing evidence that R.M. is unable or unwilling to eliminate the harm that B.M. has experienced. N.J.S.A. 30:4C-15.1(a)(2). We agree with the trial court's observation that R.M., by her actions, allied herself with K.M. against B.M. Although she told one evaluator that she would separate from K.M. if the children were returned to her, the trial court was fully justified in considering her past conduct a reliable predictor of her future actions.

Her conduct with respect to B.M. has, moreover, permitted the harm to E.M. to continue and to permit both children to form firm bonds with their foster mother.

[P]rolonged inattention by natural parents that permits the development of disproportionately stronger ties between a child and foster parents may lead to a bonding relationship the severing of which would cause profound harm--a harm attributable to the natural parents and cognizable under the standards set forth in [DYFS v. A.W., 103 N.J. 591, 604-11 (1986).]

[J.C., supra, 129 N.J. at 18-19.]

During the course of the trial, R.M. presented Katherine Carugno, a licensed clinical social worker, as a witness on her behalf. R.M. had been engaged in a course of treatment with Ms. Carugno since March 2003; that treatment, however, was aimed at assisting R.M. in handling the various stressors she was experiencing, rather than facilitating a return of the children. In her brief, R.M. criticizes the trial judge for accepting the opinions offered by DYFS's experts while rejecting those of her long-term therapist. Although not objected to at trial, we question the strength of Ms. Carugno's testimony with respect to R.M.'s parenting abilities. The record does not indicate that she possessed the specialized training required under N.J.A.C. 13:44G-13.2 to conduct a parenting evaluation. N.J.A.C. 13:44G-13.3(a), moreover, prohibits a licensed clinical social worker who has a treating relationship with a parent to express an opinion evaluating parenting capabilities. Although those regulations appear to address the required qualifications of an individual serving as an evaluator in the context of marital disputes, their terms are not specifically limited to that context, and we can perceive no reason why their underlying principles are not applicable in a context such as this.

The third statutory prong requires consideration whether DYFS made reasonable efforts to provide services to R.M. and whether the trial court considered whether there were viable alternatives to the termination of her parental rights. N.J.S.A. 30:4C-15.1(a)(3). The sufficiency of DYFS's efforts is measured not by their success but by their proffer. D.M.H., supra, 161 N.J. at 393. DYFS's efforts to place the girls with relatives were unavailing. It offered numerous evaluations to R.M. and both therapeutic and regular visitation with both girls. Finally, visitation with B.M. had to be terminated to protect the child from further emotional harm.

The final requisite element is that termination will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). As to this, we think the record contains overwhelming proof. B.M. and E.M. have lived with their foster mother for nearly seven years. Both girls are firmly bonded to her and would suffer profound harm if they were to be removed at this juncture. Our careful review of this record has not revealed any basis to reject the trial court's conclusion that DYFS satisfied this final prong by clear and convincing evidence.

The judgment under review is affirmed.

 

There are two spellings of this name in the record. We adopt Kathy.

During the Title 9 proceedings, DYFS introduced reports of an evaluation of R.M. by Alexander Iofin, M.D., a psychiatrist who concluded this hospitalization was the result of R.M. suffering from schizo-affective disorder, bipolar type. R.M. strenuously disputes that diagnosis, and we have not relied upon it for purposes of this opinion; we note it merely for the sake of completeness.

Dr. Medina made no reference to having observed any rash when she examined B.M.

At the time of the DYFS investigation, her name was Brooke Glasgow.

This statement is somewhat ambiguous in light of the fact that K.M. vacated the home prior to E.M.'s birth. Although E.M. spent the first eight months of her life in her mother's care, she never lived in their joint care.

There are references in several portions of the extensive record before us that he was incarcerated for murder. In her testimony at trial, R.M. denied any knowledge of why her father was not present as she grew up.

(continued)

(continued)

34

A-3560-07T4

RECORD IMPOUNDED

April 16, 2010