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New Jersey Division of Youth and Family Services v. M.M.

February 8, 2007

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-APPELLANT,
v.
M.M., DEFENDANT-RESPONDENT.
IN THE MATTER OF THE GUARDIANSHIP OF M.A.M.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF,
v.
C.B., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF M.A.M.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 382 N.J. Super. 264 (2006).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Court must decide in this appeal whether the trial court properly terminated a father's parental rights in respect of his four-year-old son who has been in the care and custody of foster parents since a few days after his birth.

M.M. is the biological father of M.A.M., the child at issue. M.M. resides in Dover, New Jersey with C.B., M.A.M.'s biological mother. The mother is thirty-two years old and the father is sixty-years old. They have one other biological child together, a daughter born in 1993, who also lives in the home. The father's parental rights concerning the daughter are not at issue in this appeal.

Within days of the son's birth in 2003, DYFS became involved. The initial DYFS referral noted that the mother had poor hygiene, appeared overwhelmed caring for the newborn, and needed constant direction. The son was hypoglycemic at birth and has a variety of developmental disorders that were likely caused by overexposure to alcohol in utero and that require special therapy. The Division filed a verified complaint in January 2003 requesting custody of the son. The trial court awarded guardianship to DYFS and the son was placed directly in foster care on January 23, 2003, when he was released from the hospital at sixteen days-old. In February 2004, the mother missed her scheduled visitation because she had run away from home. Consequently, the Division filed a complaint in April 2004, requesting guardianship of the son for purposes of adoption. At trial, a court-appointed Law Guardian appeared on the son's behalf.

In May 2005, the trial court rendered an oral decision terminating the parental rights of both the mother and the father. The court concluded that it was in the son's best interests to remain with the foster family because of the bonds that he had developed with his foster parents and because of the "repeated destabilizing elements" created by the mother. Both the mother and father appealed the termination of their parental rights. The Appellate Division upheld the trial court's termination of the mother's rights but reinstated the father's rights, disagreeing with the trial court's judgment as a matter of law because "one parent cannot be held responsible for the shortcomings of the other." Div. of Youth and Family Servs. v. M.M., 382 N.J. Super. 264, 282-84. The mother petitioned this Court for certification. DYFS and the Law Guardian filed a petition for cross-certification, contending that termination of the father's rights is in the son's best interests. We granted certification as to the father's rights only. The opinion of the court was delivered by: Justice Zazzali

Argued October 11, 2006

In this appeal, we must decide whether the trial court properly terminated a father's parental rights in respect of his son. The son is now four years old and has been in his foster parents' custody since a few days after his birth. The trial court terminated the parental rights of the mother and the father and awarded guardianship to the Division of Youth and Family Services (DYFS or Division). Among other findings, the court concluded that the son was at risk because of the mother's destabilizing influence on the home, a negative influence that must be considered when evaluating the father's rights. The Appellate Division reinstated the father's parental rights but affirmed the termination of the mother's rights. Div. of Youth & Family Servs. v. M.M., 382 N.J. Super. 264, 283-84 (App. Div. 2006). We granted certification to review the termination of the father's rights only. 186 N.J. 606 (2006).

The record contains clear and convincing evidence that the father did not establish a safe and stable environment for his son. Although the father does not pose a direct threat to his son, the evidence demonstrates that he did not provide for the son's special needs or mitigate the effects of the harmful environment in which he intends to raise the son. Additionally, since the son's placement in foster care a few days after his birth, he has developed strong emotional bonds with his foster parents and, with their assistance, is overcoming various muscular and neurological disorders. Conversely, the father has had ample opportunity to improve the circumstances, but his efforts are both untimely and inadequate.

The standard for the determination of this appeal is the best-interests-of-the-child. In the tapestry of facts that we now detail, one common thread emerges -- it is not in the son's best interests to remove him from a home where he has flourished and place him in an environment that is, at best, destabilizing. Because we defer to, and agree with, the trial court's holding that termination of the father's rights is in the son's best interests in this unique case, we reverse.

I.

A.

Respondent, M.M., is the biological father of M.A.M., the child at issue. M.M. resides in Dover, New Jersey with C.B., M.A.M.'s biological mother.*fn1 The mother is thirty-two years old, and the father is sixty-years old. The mother and father have been together for more than fifteen years and are not married. They have one other biological child together, a daughter born in 1993, who also lives in the home. The father's parental rights concerning the daughter are not at issue in this appeal.

Within days of the son's birth in 2003, DYFS became involved. The initial DYFS referral noted that the mother had poor hygiene, appeared overwhelmed caring for the newborn, and needed constant direction. The son was hypoglycemic at birth and required regular feedings every three hours because a drop in his glucose levels could result in seizures. A nurse observed that the mother was unable to calculate the son's feeding times. Additionally, the son has a variety of developmental disorders that were likely caused by overexposure to alcohol in utero and that require special therapy.

Concerned about the mother's ability to care for her son, the Division questioned the father regarding his plans for the son once the baby was released from the hospital. The father stated that he intended to bring the mother and his son to work with him every day at his drycleaning job. When DYFS informed him that his plan was unacceptable, he offered a list of relatives that could provide daycare. The Division found, however, that all the listed caregivers were also under investigation by DYFS or were unwilling to provide the needed assistance. Accordingly, sixteen days after the son's birth, the Division placed him with his foster parents. Since then, the foster parents have cared for the son, who is now four years old. The Division filed a complaint in 2004, petitioning the court for guardianship of the son for the purpose of adoption.

The Mother

At trial, several witnesses expressed concerns about returning the son to his father's care because of the mother's presence in the home. All the psychological experts agreed that the mother posed a risk to the son. Dr. Frank Dyer, a psychologist testifying for DYFS, stated that the mother was "much too cognitively limited and much too immature emotionally . . . to be considered a viable caretaker" for the son. In his report, Dr. Dyer noted that the mother's intellectual functioning was "well within the mildly retarded range" and her performance was comparable to that of an average seven-year-old child. The implications of the mother's psychological profile for parenting were also negative. In Dr. Dyer's view:

[The mother] is much too limited intellectually to be able to appreciate the physical and emotional needs of a young child. She lacks the vigilance, judgment, and common sense to be able to provide adequate physical protection, nurturance, intellectual stimulation, and emotional security for a young child. It is noteworthy that [the mother] agonizes over the fact that she has caused her daughter so much suffering by her pattern of running away from the home to go on alcoholic binges; however, this pattern has persisted until as recently as two months before the present examination. To a reasonable degree of certainty, a preschool child in [the mother]'s care would be at very great risk of harm. [(Emphasis added).]

The mother's limited mental capacity and erratic tendencies led Dr. Dyer to observe that, at times, the father "experiences the [] relationship [with the mother] almost as though he had another child in the home." Dr. Dyer concluded that "the overall behavior impression was that of a mentally retarded woman with poor judgment and poor impulse control." When asked about the mother's prognosis for change, Dr. Dyer stated:

She did not display any particular insight into her problems. She displayed what I consider to be a rather crude denial system in regard to the possibility of working out her problems, or her own responsibility for the problems involving the family and involving her. She tended not to give any evidence of either an intellectual potential or some kind of motivation to achieve genuine change.

Dr. Ronald Silikovitz, the mother's psychological expert, corroborated Dr. Dyer's findings. Dr. Silikovitz conceded that it was accurate to describe the mother as "mentally retarded" and it would not be in the son's best interests to place him in her physical care. Dr. Paul Fulford, the father's psychological expert, did not evaluate the mother personally but offered an opinion regarding her fitness to parent, stating:

[The mother] represents a threat of potential [harm] only if allowed sole parenting responsibility, and this must be seen in the light of her mental age, which is child like [sic]. In other words, she would be seen as more of an elder sister to [the son], rather than birth mother, and, as such does not represent a danger in his presence, but only a risk if allowed to assume an exclusive parental role, much the same as a young child would be a risk to an infant sibling, if left in their sole care. Caseworkers testified that the mother abuses alcohol and often runs away from home to binge drink. The mother's history of running away extends back to her childhood. Since 2003, the Division received numerous referrals regarding that behavior. She ran away on twelve occasions between 2002 and 2005, including at least three specific instances in the months preceding the trial. On one such occasion, she took all the money that the couple had saved to move into a larger home and spent it on alcohol. On another occasion, when pregnant with the son, she admits to running away to visit a man with whom she maintained an illicit affair because she thought he might be the son's father. Although she received treatment for her substance abuse, witnesses testified that her problems are cyclical and that she needs vigilant assistance from others to overcome her addiction. A caseworker at the Family Enrichment Program, a community service organization that provides services to needy families, testified that the family had made no progress towards the goal of family stability. The caseworker recommended that DYFS not return the son to his parents because of the instability created by the mother.

Additionally, experts and caseworkers expressed concern about the mother's tendency to make unsubstantiated allegations of domestic violence against the father. Indeed, she was once arrested for making a false statement to police regarding domestic violence. She also admits to feigning numerous instances of domestic violence to "get attention" and win the sympathy of social workers, and has recanted all of her domestic violence allegations. DYFS independently investigated several of the claims but was unable to substantiate any of the mother's allegations.

The Father

Viewed independently of the mother, the record presents the father in a more favorable light. Notwithstanding earlier difficulties in his life, the record suggests that the father has overcome a troubled past, is dedicated to his family, and has been drug-free since 1996. He works several jobs and is committed to gaining custody of his son. Dr. Fulford reported that the father has achieved "a measure of stability in his life." Dr. Dyer, the DYFS expert, concurred, stating that the father is "heavily invested in domesticity," is very interpersonally related, and genuinely loves his son. Dr. Dyer summarized his evaluation by noting that "the overall behavioral impression was that of an individual who is functioning within the parameters of psychological normality."

In respect of the father's fitness to parent, Dr. Fulford observed that the father "is a capable and responsible parent, who would be able to assume a custodial parenting role for his son." He further explained:

[The father is] employed, he's independent, [and] he's affectionate with his son. The record indicates that his daughter is being raised successfully, so that speaks to [his] track record as a parent. He is bonded to his child, the child is bonded to him. And, as such, he would appear to be appropriate as a parent for custody.

Similarly, Dr. Dyer stated that the father would be capable of appropriately parenting his son. He emphasized, however, that the son's attachment to his foster family and the father's inability to stabilize the mother militated against placing the son with his biological father. Dr. Dyer noted that the father has "failed miserably" in his attempts to "dissuade [the mother] from this pattern of abandoning the home and going out to consume alcohol, [and] gaining entry to shelters by claiming to be a victim of domestic violence." In Dr. Dyer's view, the father's inability to stabilize the mother was a "fatal obstacle" to raising a young child.

The father has complied with all Division requirements for reunification with his son, including attending parenting classes and visitation. Nevertheless, he remains deeply committed to the mother notwithstanding the risk that she poses to their son, and the couple remains together. The father told Dr. Dyer that he loves the mother despite the fact that she is mentally retarded. He is resentful of the Division because he believes that DYFS workers tried to manipulate the mother, encouraging her to leave him so that he could gain custody of his son.

The Daughter

The Division first became involved with the mother and father in 1993, prior to the birth of their daughter. The Association for Retarded Citizens referred the family to the Division, alleging that the couple presented a risk to their unborn daughter because of domestic violence and substance abuse. DYFS investigated and concluded that the allegations were unsubstantiated. At that time, the father was under house arrest and was subject to random drug and alcohol testing. Subsequent DYFS reports stated that the mother cooperated with her prenatal appointments and was prepared for her unborn child. After the daughter's birth, however, the mother made several allegations of domestic violence against the father, all of which she recanted.

In 1994, the daughter received emergency medical treatment for a burn mark on her upper arm that may have been caused by someone using her to extinguish a cigarette. She was also treated for swelling to the forehead and a scraped lip. She was eventually released to the father, who was to be the primary caretaker. The Family Part of the Superior Court subsequently issued an order that the daughter was never to be alone with her mother, and the DYFS case plan had included a similar restriction. During that period, the mother ran away from home on numerous occasions for weeks at a time. Additionally, in 1999, DYFS investigated an allegation that the daughter was in danger because the couple could not afford food. The Division concluded that the family was experiencing financial difficulties but that the daughter was not at risk.

Dr. Dyer was the only expert witness to evaluate the daughter. The daughter performed adequately on an intelligence test administered by Dr. Dyer, and Dr. Dyer assessed her intellectual functioning to be in the "lower extreme of the average range." The daughter stated that she enjoys school and that she has many friends. Dr. Dyer concluded that the father is adequately parenting her. Although Dr. Dyer found that the daughter was not abused or neglected, he noted that the instability created by the mother caused her harm. He stated that the daughter experienced parental abandonment on several occasions and a food shortage in the home when the family faced financial difficulties. He explained that the daughter worries about the family's stability and appears to believe that if she behaves and does "her part," the family's situation will improve. Although she expresses concerns about her mother's ability to care for her brother, she is protective of her parents. Dr. Dyer concluded that leaving the daughter in the home has had "far-reaching effects psychologically on [the daughter]." Finally, according to three social workers, the daughter conveyed to her father that "she did not want her mother home because she doesn't want her brother to go through what she has gone through."

The Foster Parents

As noted, the son, who is now four years-old, has been cared for by a foster family since he was sixteen days-old, virtually his entire life. The foster father testified that he and his wife became foster parents after learning that they could not have children of their own. He stated that they would adopt the son "without question" if presented with the opportunity and that they "love [the son] to no end." The foster father explained that the son has various special needs and is receiving physical therapy because of a muscular disorder and speech therapy due to verbal apraxia, a speech impediment. Additionally, the foster father described numerous, tedious exercises that he and his wife perform with the son to help him overcome those disorders. The son is not currently enrolled in daycare, but the foster father explained that he and his wife were considering sending him to daycare two days a week. The foster parents are supportive of continued visitation for the father and daughter but object to visitation by the mother. Finally, the foster father stressed that after visiting with the mother, the son is noticeably upset and often acts out violently against his foster mother.

The Son

Although the essential facts concerning the son have already been noted, a few points deserve emphasis. First, the son is a child with special needs. At birth he had a heart murmur and was hypoglycemic. According to the foster mother, those conditions have "cleared up." However, he continues to suffer from various developmental disorders and is in need of surgery to correct a herniated navel. Additionally, the cause of his speech disorder has been diagnosed as neurological in nature, requiring further attention from a neurologist. The son also suffers from a muscular disorder that requires someone to assist him in performing various mechanical exercises. Those efforts include carefully massaging his facial muscles; using specialized whistles to develop his jaw and lips; and training him to drink with customized straws to help him with tongue placement. The foster family has assumed responsibility for all of those special needs.

Second, only the DYFS expert, Dr. Dyer, evaluated the son individually and assessed his general development. According to Dr. Dyer, the son's self-help skills and motor skills are "low average" and "his language development and social maturity are borderline." Dr. Dyer reported that the son's "overall developmental quotient" was "within the borderline range." He concluded, however, that "in light of his genetic background and the possibility of ...


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