On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Hudson County FG-09-277-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard, Payne and Lihotz.
In these related matters, which we have consolidated for opinion purposes, mother, W.F., and father, C.P., appeal from an order of a judge of the Family Part terminating their parental rights to daughters D.P. (fictionally, Dana), born on July 21, 1997, and R.P. (fictionally, Ruby), born on December 31, 1998, claiming that the State failed to meet any of the four prongs of the statutory best interest test set forth in N.J.S.A. 30:4C-15.1(a). See also New Jersey Div. of Youth and Fam. Servs v. A.W., 103 N.J. 591, 604-11 (1986). They are supported in the appeal by the arguments of the girls' law guardian, who asserts that the State failed to prove the second, third and fourth prong of that test.
The subject test requires, for an order of termination to issue, that there be clear and convincing proof that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
The family has had longstanding contact with DYFS. In January 2000, when Dana was two and one-half years of age and Ruby was approximately one, DYFS was informed that W.F., addicted to cocaine and alcohol, had left her husband, C.P., taking with her two older children, born to different fathers. C.P., homeless, was unable to care for the girls, who were removed from C.P. on January 11, 2000. Upon reconciliation between W.F. and C.P., the girls were returned to their parents' care on July 28, 2000. However, they were again removed on April 30, 2001,*fn1 following an incident in which C.P., enraged by a fight with a brother-in-law, picked up the girls and ran while carrying them football-style, dropping one and placing the other on a moving car that C.P. then sought to enter.
A complaint for guardianship was filed. However, on February 10, 2003, the Division's complaint was dismissed and the matter was converted into an abuse and neglect action. Further hearings were held on April 16, 2003, as the result of which the Division was ordered, by June 18, 2003, to implement a plan for reunifying the girls with their mother, W.F., who had separated from C.P. in 2001 and had been divorced from him in 2002. An additional hearing was held on June 18, 2003, and immediate overnight visitations with W.F. were ordered. However, on July 16, 2003, after the judge learned that W.F. was cohabiting with a known sex offender (a circumstance that was later remedied), the court suspended overnight visitation with W.F. and ordered all visitation to take place at the Division's district office.
The termination proceedings were reopened on August 20, 2003, but on March 5, 2004, following trial, the judge dismissed the termination complaint, finding that the Division had failed to establish the fourth prong of the statutory test by clear and convincing evidence. In a supplemental oral opinion on the Division's motion for reconsideration, the judge cited W.F.'s abstinence from drugs and alcohol, stabilization of her financial situation, acquisition of permanent housing, gainful employment, participation in recommended counseling, and strong bond with the children in support of his decision.
On July 28, 2004, the judge authorized the children to be placed in W.F.'s custody, her inappropriate relationship having ended, and they were returned to her at her residence in Jersey City in early September 2004. W.F. moved with her four children to a row house with four bedrooms in Easton, Pennsylvania on October 31, 2004. A DYFS caseworker's summary of the case at that point stated:
[In or around June 28, 2004, W.F.] was allowed to have in-home weekend visits with [Ruby] and [Dana]. The goal changed from termination of parental rights. The Urban League continued to work with the family to provide support during the transition period. The children were returned to [W.F.] on 9/7/04. The Urban League indicated that [W.F.] successfully completed the program, that she was extremely proactive in fulfilling all her children's needs and ensured their safety. The report stated that she had adapted to reunification in the home with her daughters.
Based on MVRs on 8/17/04, 9/16, [and] 10/1 the Division determined [W.F.] was an appropriate caretaker for the children; that the children were not at risk with her. The case was determined ready to be closed. After [W.F.] relocated to Pennsylvania the Division's plan was to travel to Pennsylvania and then close the case. Lindsay Mangarelli from ARC called to tell worker that on 12/14/04, she had gone to [W.F.'s] home in Pennsylvania. Ms. Mangarelli reported that the home was appropriate, the children ([Ruby] and [Dana]) indicated that they really enjoyed living with their mother. She stated that everything was fine with them. Ms. Mangarelli stated that [W.F.] appeared to be a warm person. Also that [the older daughter] and [older son] were polite and respectful. Ms. Mangarelli stated that the family appeared to be doing well.
C.P. was afforded continued visitation, upon notice to W.F.
On January 14, 2005, the children were once more removed, on an emergency basis, from W.F.'s custody as the result of sexual conduct by the girls' eleven-year-old half-brother. On March 16, 2005, DYFS filed a second complaint seeking to terminate the parents' rights to the girls. Following hearings on the matter, occurring in June 2006 before the same judge who had held the first trial, the parental rights of W.F. and C.P. were terminated. Prior to the termination trial, the girls' offending step-brother had been placed in the legal and physical custody of his grandmother in Jersey City. Additionally, a few months before the trial, W.F. had remarried a person employed as a sound engineer. A background investigation of W.F.'s husband revealed no criminal history. We were informed at oral argument that W.F. continues to live in Easton with her husband, an older daughter, and the daughter's infant child. Bi-weekly supervised visitation, in New Jersey, between W.F. and the girls, established after their removal, has continued while the matter is on appeal. We were informed that C.P., who also was afforded supervised visitation, ceased visiting the children in September 2006. Psychological records pertaining to Dana, submitted after oral argument on appeal, confirm the lack of contact between C.P. and the girls after September 2006.
It is unquestionable that, at various points in the girls' lives, their safety was endangered as the result of W.F.'s drug and alcohol addiction and desertion; by C.P.'s limited intellectual function, occasional homelessness and joblessness; and by the couples' episodes of domestic violence. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Nonetheless, the extensive psychological records maintained in this case reveal that, with two exceptions, all persons performing bonding studies found that the girls remained strongly bonded to both of their natural parents, while maintaining a less affectionate relationship with their foster mother and her husband.*fn2
Moreover, W.F.'s lifestyle had stabilized to an extent that permitted efforts toward reunification to occur after the first termination complaint was dismissed, and that permitted the eventual return of the girls to her custody to be effected. By the conclusion of the first termination trial, W.F. had been drug-free for a substantial period, having successfully completed out-patient substance abuse treatment in January 2001, with no history of relapse. Although as the result of his intellectual limitations and his need for extensive assistance in caring for the girls, C.P. was deemed not to be an appropriate custodial parent, overnight visitation was permitted.
Removal of the girls in January 2005 occurred as the result of the conduct of their half-brother while the girls were in W.F.'s custody. However, there is no evidence in the record to suggest that the half-brother remained a threat to the children's safety once he was placed in his grandmother's legal custody in Jersey City and was thus physically separated from his immediate family. Moreover, the evidence suggests that, as the result of W.F.'s recent marriage, her life, if anything, had further stabilized. We therefore inquired at oral argument why the Division regarded W.F. to be an unsuitable custodial parent and why, given evidence of the girls' continued strong attachment to and preference for their natural parents, termination of parental rights was thought to be in their best interests. We were informed by the Division that W.F. had continued to demonstrate a pattern of exercising poor judgment in connection with her care of the girls that commenced with her addiction and desertion, continued with episodes of domestic violence and her ill-advised relationship with a known sex offender, and was most recently exhibited when she permitted sibling sexual contact to occur. We were also informed that the need for permanency outweighed any other considerations in the matter.
As a consequence, we have focused our analysis of the extensive record in this matter primarily upon (1) the psychological evaluations of the natural parents (2) the circumstances of the step-brother's sexual contact and the extent of W.F.'s knowledge of it, and (3) the nature and strength of the girls' attachment to their parents and foster mother and their adjustment to the circumstances of their lives.
The record in this case supports the determination by DYFS that C.P. would be an inappropriate custodial parent for the girls. As the result of a fall out of a third-story window as a child, C.P. exhibits low intelligence. He has had difficulty maintaining employment, sometimes selling handbags on the street, and sometimes lacking a job, has experienced periods of homelessness, and has exhibited the need for assistance in assuming fulltime care for the two children. His intemperate, angry and sometimes violent outbreaks pose an additional threat.
Our consideration of W.F.'s ability to exercise reasonable judgment in the care of her children is aided by a record containing multiple psychological evaluations, as well as the trial testimony of various experts. Those reports disclose a remarkable increase in W.F.'s level of functioning. In an April 25, 2000 report to DYFS, psychologist Harvey Block found, among other things, that W.F. "may be perceived by others as odd, peculiar, and unusual both in terms of her thinking and behavior. She exhibits poor judgment and is often unpredictable and impulsive. She is emotionally distant and has difficulty with close emotional relationships." Dr. Block observed that: "Individuals with similar profiles tend to be chronically maladjusted." Nonetheless, he concluded that, despite W.F.'s intellectual limitations, she had "adequate acquired knowledge to provide basic care for the children. Prognosis for her being able to care for the children is fair assuming that her drug problems continue to remain in remission and that her practical housing and financial barriers are settled."
Further evaluations of W.F. were conducted for the Division by psychologist Ernesto Perdomo. Following evaluations on October 22 and November 7, 2001, Dr. Perdomo found W.F. to be of low-average intelligence, with no thought disorder or psychosis. However, he concluded on the basis of testing and interviews that she had a narcissistic, depressed, and impulsive personality, and that her "ability to provide effective parenting to her children [was] limited by her personality dynamics." Long-term therapy was recommended.
Dr. Perdomo testified on behalf of the Division at the first trial, and his opinions formed the foundation for the judge's conclusion that termination was not warranted. Although a transcript of that testimony has not been provided, the judge's opinion on the Division's motion for reconsideration of the initial denial of termination discloses that Dr. Perdomo testified that W.F. had made "significant" and "substantial" progress, that she had complied with all of his recommendations, and that she had effectively stabilized her life. The doctor saw no problem in returning the children to W.F. Dr. Perdomo did not further examine either the biological parents or the girls, and did not testify at the second trial.
On February 9, 2004, W.F. was psychologically evaluated at Hoboken's St. Mary Hospital by Dr. Nadezhda Robinson. During that evaluation, W.F. reported substantial changes in her life since Dr. Perdomo evaluated her. She obtained her high school diploma. She reports she has been working as a Home Health Aide for the past 17 months. She reports she has been in her current ...