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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5319-09T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.M.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF: A.M. AND D.P.M., minors.

___________________________________

March 15, 2011

Submitted January 26, 2011 - Decided

Before Judges Fuentes, Ashrafi and Nugent.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, FG-11-52-09.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jennifer M. Kurtz, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors A.M. and D.P.M. (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant D.M. is the father of two children: a daughter, A.M., now three years old, and a son, D.P.M., now two. He appeals from a Family Part judgment terminating his parental rights to both children. The children's biological mother, S.W., entered into an identified surrender of the children so that S.C., the paternal grandmother of S.W.'s oldest son, could adopt them. We affirm, substantially for the reasons stated by Judge Audrey P. Blackburn in her comprehensive oral opinion placed on the record on March 10, 2010.

I

The State of New Jersey Division of Youth and Family Services (the Division) first became involved with D.M. and S.W. on August 7, 2007, after receiving a referral that five-month old A.M. had bite marks on her left cheek and choke marks on her neck. Division investigator Betty Lanayis responded and D.M. admitted causing the injuries while playing with his daughter. He was subsequently charged with and pleaded guilty to fourth degree child endangerment. On August 9, 2007, the Division removed A.M. from D.M.'s residence and placed her with S.C., with whom she has remained since her removal. Meanwhile, the Division arranged for D.M. to receive a psychological evaluation and parenting classes. The Division assigned Family Service Specialist Caroline Rich to the family with a goal of reunification. Rich referred D.M. to Children's Home Society for an intensive services program consisting of parenting classes, visitation, and counseling; and to Catholic Charities for anger management and domestic violence training. D.M. was partially compliant with his visitation and counseling sessions, and completed the anger management and domestic violence programs.

Rich also assessed relatives for placement of A.M., including D.M.'s sister, but the sister's boyfriend would not provide information required for placement. Finally, Rich provided D.M. and S.W. with bus passes and gave them a list of affordable housing.

While Rich was working with the family, D.P.M. was born in March 2008. The Division arranged for Family Preservation Services to assist D.M. and S.W. with parenting skills, guidance, and transportation, but the month after D.P.M.'s birth he was admitted to the hospital with a "green stick" fracture of the femur, which the doctors believed was not accidental. As a result, the Division removed D.P.M. from D.M.'s residence and placed him with A.M. and S.C. D.M. generally denied causing the injury to D.P.M., but admitted during an interview with a psychologist that "probably accidentally something had happened to [D.P.M.]" while he was manipulating the baby's legs.

Following a series of proceedings in the Family Part, the Division filed a complaint for guardianship of A.M. in November 2008. In April 2009, the Division filed an amended complaint for guardianship of D.P.M. as well. Psychological and bonding evaluations of all parties were completed. Judge Blackburn conducted the guardianship trial over six days in January, February, and March 2010.

The Division introduced more than thirty exhibits at trial, including the Division's investigative files, and the psychological and bonding evaluations of the parents, the children, and S.C. The Division called as witnesses a psychologist, and four employees who testified about the removal of the children from defendant's residence, the services provided to the parents and children, and their observations of the children's relationship with S.C. The Law Guardian presented the testimony of a psychologist, as did defendant, who also called a counselor from Catholic Charities' Family Growth Program and testified on his own behalf.

All three psychologists agreed D.M. was incapable of being the sole caretaker for either child, believing that he had significant interpersonal problems. Dr. Amy Becker-Mattes, whose testimony was presented by the Law Guardian, reached the following conclusions about D.M. in her written report of November 30, 2009:

Adjustment Disorder with a mixed Disturbance of Emotions and Conduct. Other diagnoses including Physical Abuse of a Child, Physical Abuse of an Adult, Partner Relational Problem and a Personality Disorder Not Otherwise Specified were made as well. This examiner suggested that the diagnosis of a Schizotypal Personality should be considered and also ruled out.

It seems that [D.M.] has a significant deficit in terms of his ability to modulate his behavior. Despite over a year and a half of attempted remediation, he has been unable to benefit sufficiently, such that professionals are still unable to recommend reunification with his children.

....

It seems that [D.M.], who appears to be intellectually limited, suffers with psychopathology that leads him to physically abuse his children despite what appear to be his intentions to behave otherwise.

Because his behavior has apparently not improved despite compliance with professional services and he still seems to have a profound lack of awareness and/or insight regarding his behavior, he can in no way be entrusted with the care of his children. A relationship does exist between [D.M.] and [A.M.] and [D.P.M.], but the children's physical well-being must be given primary consideration. [D.M.] can not be seen as an appropriate caretaker of his children, rather he must be considered a danger to [A.M.] and [D.P.M.].

Dr. Becker-Mattes reiterated these conclusions in her trial testimony, and added that D.M. had a "tendency to think he knows best and that he [could] handle things without the guidance of others." Such thinking on his part was "to his detriment in terms of him being able to benefit from remediation."

Similarly, Dr. Meryl E. Udell, called as a witness by the Division, concluded:

At this time [D.M.] has been receiving services to address the issues of parenting, domestic violence and anger management for more than two years.... During the updated parenting/bonding evaluation . . . [D.M.] continues to show an inability to understand the emotional signals/needs of his daughter and pays very little attention to his son (relative to his daughter, who he is literally all over). Although [D.M.] will most probably address this inconsistency by stating that [D.P.M.] does not want him near him and does not like to be held, this is not what I am referring to. [D.M.'s] overall quality of relating to the children was very different . . . . [D.M.] has had two years of very intensive supervision, training and feedback and it is still not safe to leave his children with him without supervision and ongoing intensive training.... At this time, it is recommended that the children not be returned to [D.M.] and that they be freed for adoption.

Dr. Udell testified that "[i]n the course of all the remediation [D.M.] was given, the parenting classes, the hands on experience, the very extensive coaching, he learned what to say and he got the ideas, but he was never able to implement them."

D.M. called Dr. Jeffrey Allen who characterized him as a rather concrete thinker with a likely learning disability who had difficulty accepting full responsibility for his actions. Dr. Allen concluded D.M. was presently incapable of acting as a caretaker for the children, but believed that with additional counseling, "[t]he chances are more likely than not that [D.M.] could become a fit parent." The process would take "a couple of years."

With respect to the bonding evaluations, the psychologists agreed that the children had bonded with S.C. Drs. Becker-Mattes and Udell testified that the children had developed some affection for, but no attachment to, D.M., and that termination of his parental rights would not cause them severe and enduring psychological harm. They also testified that removing the children from S.C. would cause serious and enduring psychological harm. Dr. Allen believed D.M. had bonded with A.M. and that terminating his parental rights would cause her serious trauma; however, he found no bond existed between D.P.M. and D.M.

D.M. testified that after A.M. was removed, the Division offered him parenting classes and counseling through Children's Home Society and he began anger management with Catholic Charities. D.M. felt that he made little progress with Children's Home Society because the counselor gave him mixed signals about his improvement. However, he felt he made significant progress with his anger management and believed his weekly visits with his children had significantly improved their relationship. The counselor from Catholic Charities confirmed D.M. was making progress.

D.M. currently lives with his mother, stepfather, niece and nephew in a five bedroom house in which he has prepared a room for the children next to his room in the attic. Although they were married in February 2009, D.M. no longer has a relationship with S.W.

D.M. is a truck driver who has worked delivering bread for approximately seven years. He is paid five hundred dollars every two weeks "under the table" because he is in the country illegally, and he does not pay taxes or have health benefits. He has considered daycare for the children if they are returned to him and would attempt to put them in the same daycare as his niece, so that his sister could pick the children up and stay with them until he returns from work.

On March 10, 2010, Judge Blackburn issued an oral decision finding that the Division had met all four prongs of the best interest of the child test by clear and convincing evidence under N.J.S.A. 30:4C-15.1, and entered an order terminating D.M.'s parental rights and awarding the Division guardianship of the children for permanent placement with S.C.

II

Our standard of review in a termination of parental rights case is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). A reviewing court must defer to the family court's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). We also defer substantially to the trial court s assessment of expert evaluations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the [] court's credibility determination[s] and the judge's 'feel of the case' based upon [the court's] . . . opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007). We also recognize the special expertise of those judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13. "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." Ibid. (quoting G.L., supra, 191 N.J. at 605).

Additionally, it is well established that when seeking termination of parental rights under N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing the following standards by clear and convincing proof:

(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-15.1a. See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]

The four subsections of the statute are "not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The considerations involved are extremely fact-sensitive and require particularized evidence that addresses the specific circumstances present in each case. Ibid.

D.M. first challenges the sufficiency of the evidence used to establish the first two statutory prongs. Judge Blackburn found that D.M. bit and choked A.M., resulting in a conviction for fourth degree child endangerment. She found credible both D.M.'s admission that D.P.M.'s fractured leg most likely occurred accidentally while he was playing with the child, and the evidence that D.M. bounced D.P.M. while the child was suffering from a broken leg. More significantly, Judge Blackburn found D.M. had not profited from the remedial services offered to him, and observed not one evaluator or counselor had recommended reunification of D.M. with his children. D.M.'s own expert concluded he is not a suitable parent, and that it would take at least two years before he could meet that basic standard.

The judge also found that D.M.'s immigration issues have not been resolved, the amount of his earnings are questionable, and though he has given some thought to daycare for the children, he does not know how much daycare will cost. His relationship with S.W. is tumultuous and unstable.

Finally, the judge found that the children have bonded with S.C. Two of the experts concluded removing them from S.C. would cause severe and enduring harm. The second statutory prong explicitly states that such harm "may include evidence that separating a child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2).

Judge Blackburn's factual findings were supported by adequate, substantial, credible evidence, as was her conclusion that the Division had clearly and convincingly established the first two prongs of the statute.

We also reject D.M.'s argument that the Division did not satisfy the third statutory prong by making reasonable and timely efforts to provide services to help D.M. correct the circumstances leading to his children's placement outside the home. The judge's conclusion that the Division met its burden of proving this prong by clear and convincing evidence is supported by virtually every trial witness, and in fact, he was still receiving services during the trial. Yet, the experts believed that, due to his personality problems, he was incapable of acting as a caretaker for the children.

Finally, Judge Blackburn's conclusion that terminating D.M.'s parental rights would not do more harm than good is supported by expert testimony that removing the children from S.C. would cause enduring, psychological harm; and that D.M. does not have the capacity or skills to remediate that harm. Although Dr. Allen concluded that A.M. would suffer severe trauma if D.M.'s parental rights were terminated, that testimony was contradicted by the other experts, whose testimony Judge Blackburn found credible. The judge noted the testimony of "witness after witness" that S.C. is the children's psychological parent and the person to whom they turn for comfort, safety, and security. We defer substantially to the trial court s assessment of expert evaluations. D.M.H., supra, 161 N.J. at 382.

Judge Blackburn carefully and comprehensively reviewed all of the trial evidence and concluded the Division had established all the legal requirements of an order for guardianship by clear and convincing evidence. Her opinion analyzes the statutory requirements of N.J.S.A. 30:4C-15.1a, and is amply supported by clear and convincing evidence in the record. E.P., supra, 196 N.J. at 104.

A