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New Jersey Division of Youth and Family Services v. L.I.


July 13, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-235-05.

Per curiam.



Submitted May 31, 2007

Before Judges Stern, Sabatino and Lyons.

T.I. and L.I. appeal from a judgment of the Family Part entered on May 15, 2006, terminating their parental rights to their daughter D.K.I. and their son L.I., Jr.*fn1 We have consolidated the appeals for purposes of this opinion.

The daughter, now age eleven, was born in March 1996, and the son, now four and one-half years old, was born in August 2002. Judge Callahan rendered a lengthy oral opinion resulting in the termination. Because there is sufficient evidence in the record to support his comprehensive findings of fact, we affirm the legal conclusions reached by Judge Callahan.

The Division of Youth and Family Services (DYFS or Division) filed a complaint for supervision of T.I.'s older children over ten years ago, and defendants have had a decade of history with DYFS and the courts. There were numerous ongoing evaluations and concerns about defendants' parenting abilities due to defendants having sexual relations in front of the children and D.K.I. being sexually assaulted by her older half- siblings, T.I.'s older sons. There were also concerns flowing from L.I.'s abuse of T.I. and her older sons. Ultimately the two children involved in these proceedings were taken from the family and placed in foster care, and are now each with foster parents willing to adopt them. D.K.I. has been with her foster mother for five years, and L.I., Jr., for almost two years.

T.I. also has had difficulties with her older children, and ultimately all five of her children have been taken from her. We briefly refer to some of the more recent evaluations.*fn2 In 2005, Dr. Leslie Williams reported:

In my professional opinion, within a reasonable degree of psychological certainty, both children would suffer severe and enduring psychological harm if removed from their respective foster parents. Neither child mentioned wanting to live with either Mr. or Ms. [I]. I did not get the sense that either child was terribly connected although as noted above, I did not do a bonding evaluation since neither parent showed for those scheduled appointments.

In November 2005, after ultimately being able to conduct a bonding evaluation with defendants, Dr. Williams reported:

In my professional opinion, within a reasonable degree of psychological certainty, Mr. [I] is not currently capable of providing adequate parenting of [D] and [L]. I share some of the concerns that were noted in Dr. Dyer's report.*fn3 I also found Mr. [I] to not take any responsibility for what happened to his children, preferring to blame Ms. [I] and DYFS. He minimized his own behavior as well as his contributions to what happened to his children. His behavior questions his true motivation for wanting to provide for his children. Mr. [I] may be looking to simply reconcile with Ms. [I] so that she can care for the children and not necessarily that he wishes to be their primary caregiver. Additionally, Dr. Dyer noted that Mr. [I] appeared willing to have Ms. [I]'s older sons back in the home even though these sons had sexually abused [D].

While there is certainly a bond and a level of attachment between [D] and her biological parents, I do not believe that she views them as stable people in her life. I believe that while she would suffer some degree of loss, [D] very much wants to belong to a family and have the security of family life. Based on my bonding evaluation between [D] and her foster mother, [D] appears to see adoption as a way of achieving stability and finally being a family member, something that her biological parents have not been able to provide for her. I do not believe that [L] is significantly attached to either Mr. or Ms. [I]. [L] would not suffer severe and enduring psychological harm if Mr. and Ms. [I]'s parental rights are terminated. [D] would benefit from therapy to help her deal with her sense of loss but I believe that she would also be able to compensate for that loss by feeling that she is securely and firmly part of her foster mother's family.

After meeting further with T.I. in January 2006, Dr. Williams further reported:

Ms. [I] has a long history of DYFS involvement, dating back to 1992. None of her five children are in her care. As noted in my previous reports and in the DYFS records, Ms. [I] has a history of noncompliance with DYFS. She also has a tendency to blame other people and not take responsibility for her behavior.

Ms. [I] has indicated that she would like custody of all five of her children. Her three older sons are in treatment facilities and an independent living situation. [D] was allegedly sexually abused by two of Ms. [I]'s sons. She never mentioned this on the two occasions that I saw her. Ms. [I] is presently focused on getting custody of [L] and [D].

As noted in my previous evaluations, I believe that [D] and [L] are firmly bonded with their respective caregivers. I also believe that neither [D] nor [L] view Ms. [I] in a parenting role and as a stable, nurturing figure in their lives. While the children are familiar with Ms. [I], I do not believe that they have a strong, positive bond with her. Ms. [I] was vague about why she has been involved with DYFS for so long and why [D] has been out of her care for so long. Again, she demonstrated no comprehension for how her own behavior has impacted on the lives of all of her children. Ms. [I] indicated that since she now has an apartment and a job and is also regularly visiting [D] and [L], the children should simply be returned to her. She did note that she was willing to have [D] have a transitional period but ultimately wanted all of her children with her.

In my professional opinion, within a reasonable degree of psychological certainty, Ms. [I] is not capable of providing adequate parenting of [D] or [L]. I do not believe that she is seriously committed to meeting the children's physical and emotional needs. As noted above, I also believe that the children are securely bonded with their current caregivers and should remain with those caregivers.

On January 2006, Dr. Albert Griffith wrote bonding reports with regard to D.K.I. and L.I., Jr., and a psychological evaluation of L.I. On March 6, 2006, Dr. Griffith reported the following as a result of a bonding evaluation between D.K.I. and her foster mother:

1. This child has some attachment to the foster mother. She sees her as her protector and the one who has been reliable in attending to her daily needs. She regards her with affection in much the same manner as a grandmother would be regarded.

2. While [D] calls Mrs. [S] Mommy, it is clear that for reasons not known by this examiner, she still holds to an image of her BM [birth mother] as her true parent.

3. This child appears to also have attachments to her wider biological family in the form of attachment to her brothers. She wishes to resume a role that perhaps she may have idealized of being the only girl in this family of boys.

4. While [D] appears to have attachment to both biological parents, it must be recalled that Mr. [I] is admitting that there is in fact no separation between them. Thus the BM would have open contact with this child in his care. In the absence of knowledge of the BM's issues, it is not clear to this examiner if that would endanger the child.

On the other hand, it should be kept in mind if Mr. [I] is awarded custody.

5. Finally this child has deep attachment to Mrs. [S]. Her desire for overnights with her is probably an attempt to hold onto the only safety that she has known in her life. To that end, permitting [D] to continue to have overnights with Mrs. [S] would be essential to a good adjustment to a changed custody arrangement.

6. [D] is a gentle child with perhaps higher than usual dependency needs. This would make a change of custody somewhat difficult as she perhaps does not have the resiliency of a more assertive, outgoing child. On the other hand, with family counseling and sensitivity, it is believed that she can withstand the change and would not suffer lasting harm because of it.

Finally, in his April 22, 2006 written report, Dr. Frank Dyer reported:

This is an extremely challenging case in which I first interviewed the parties early in 2003. In my psychological report on Ms. [I] and Mr. [I], that included bonding assessments of [D] as well, it was my recommendation that [D] be returned home. In that report, I expressed concerns about Ms. [I]'s pattern of alternating between periods of relative mental stability and incapacitating mood swings, primarily depression. I also expressed concern about Mr. [I]'s narcissism and his perception of himself as being the dominant and more important partner in the relationship. I further expressed concern about Mr. [I]'s denial of any problems involving domestic violence and his seeming lack of concern over the sexual molestation of [D] by her older brothers. It was my recommendation that [D] not be returned to a household in which the older brothers who molested her were present.

In the intervening period, Ms. [I] continued to suffer incapacitating psychiatric problems, leading to her losing custody of her then infant son, [L.I., Jr.] Also in the intervening period, Mr. and Ms. [I] separated, with each party currently representing that there is no prospect of a reconciliation.

Essentially, Ms. [I]'s presentation during the current assessments was the same as it was at the time that I conditionally recommended a return of [D] in May of 2003. As was the case then, the same concerns remain. These include providing Ms. [I] with sufficient psychiatric support and monitoring to avoid further episodes of incapacitating mood disorder, possible involvement with Mr. [I] in the future resulting in further problems that could traumatize the children, and the presence of one of the older half-siblings in the home, which could conceivably constitute a threat to [D].

This boy's positive emotional connection to his birthmother could conceivably serve as a basis for the formation of a renewed attachment to her if [L] were transferred to her care. Given the birthmother's comments about the foster mother and her repeated allegations that the foster mother was physically abusing this child, it is unlikely that she would be able to mitigate the harm caused by the traumatic loss of that attachment figure. It is unlikely that Ms. [I] would be able to achieve any sort of empathic attunement to [L] or an appreciation of the nature of his distress. It [i]s not likely that Ms. [I] would respond to [L]'s expressions of continued loyalty to the foster mother and grief over losing her in a manner that would assist him in overcoming the effects of that loss. On the other hand, if Ms. [I] is able to continue her present stable psychiatric adjustment, maintain stable housing, and continue to work in responsible administrative assistant positions, there is a good deal that she could offer [L] with respect to material comforts, intellectual stimulation, and a continuing connection to his biological family.

If [D] were returned to the birthmother's home, it is likely that there would be some short-term consequences owing to the fact that this would be yet another disruption in the child's continuity of care. [D] states, however, that her concern about losing contact with her foster mother if there were a reunification with either birthparent, is that this would mean a possibility of not being returned to the foster mother's home if she had to return to the foster care system. While [D] does have a positive tie to her foster mother, it is unlikely that she would suffer a traumatic and disorganizing loss if she were returned to her birthmother, providing that the birthmother remained psychiatrically stable and did not become involved with [L.I.], Sr. or any new abusive partner.

On the other hand, if [D] were to be adopted by her foster mother, the resulting loss of contact with the birthparents would have adverse psychological consequences for her. It is unclear whether the impact of such a loss would result in clinical depression, behavioral problems, or an extreme exacerbation of this girls anxiety. In any event, if [D] were to remain permanently with Ms. S. as her adopted child, she should be started in individual psychotherapy or counseling with a focus on attachment issues, grief, loss, emotional security, anxiety, and feelings of depression. In light of the strong and unambivalent preference that she expresses for returning to one or the other birthparent, there is a small likelihood that adoption by the foster mother would result in psychological problems or behavioral problems that would be severe enough to threaten a disruption of the adoption. Again, promptly starting [D] in psychotherapy or counseling would be a further safeguard toward averting such an outcome.

Dr. Dyer was called by the court to testify as a court- appointed expert. He opined that when things in T.I.'s life are going well and she is not overwhelmed, she feels that she does not need any help, and therapy is not necessary. Dr. Dyer, however, opined that this false sense of security leaves T.I. "vulnerable to incapacitating psychiatric crises," and that "the same problems that [he saw in] 2003[] remain, and [he] did not see any evidence in any of the materials that [he] reviewed or in any of what [T.I.] said to [him] or what [he] observed with the parents and the children . . . that matters had -- changed materially in regard to this continuing vulnerability to psychiatric crises."

As our Supreme Court recently stated:

Review of a trial court's termination of parental rights is limited. A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by "adequate, substantial and credible evidence" on the record. Additionally, as a general rule, we must grant deference to the trial court's credibility determinations. However, "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." Still, even in those circumstances we will accord deference unless the trial court's findings "went so wide of the mark that a mistake must have been made."

[N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007) (internal citations omitted).]

In reviewing the trial court's judgment, we must remember that a parent's rights to "maintain a relationship with their children" is constitutionally protected. Id. at 279 (citing In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). As such, courts "consistently impose 'strict standards for the termination of parental rights.'" Ibid. However, "[p]arental rights are not absolute . . . . The State has a responsibility to protect the welfare of children and may terminate parental rights if the child is at risk of serious physical or emotional harm." Ibid. As such, "[t]he statutory best-interests-of-the- child standard aims to achieve the appropriate balance between parental rights and the State's parens patriae responsibility."

Id. at 280.

The "best interests of the child standard" relevant in these proceedings is set out in N.J.S.A. 30:4C-15.1(a). The statute requires DYFS to "initiate a petition to terminate parental rights" based on the "best interests of the child" when:

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

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

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

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

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

These elements "'are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of children.'" M.M., supra, 189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005)). "[T]he focus of the inquiry is not only whether the parent is fit, but also whether he or she can become fit within time to assume the parental role necessary to meet the child's needs." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006).

Furthermore, the elements are "'extremely fact sensitive' and require particularized evidence that address[es] the specific evidence in the given case." M.M., supra, 189 N.J. at 280 (quoting R.L., supra, 388 N.J. Super. at 88 (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993))). Judge Callahan recognized all these principles.

The judge detailed L.I.'s history of domestic violence, even though his violence was not directed to these children, the long history of poor compliance by both parents with court ordered services and their documented mental disorders and difficulties. The judge was properly concerned about the parents' desire to reunify the family in light of their failure to perceive any of their own parental shortcomings or their need for counseling and support. Of particular significance to the judge was the need for stability and the bonding of the children to the foster parents, particularly with regard to L.I., Jr. who spent most of his life in foster care. The judge found no "significant[] attach[ment]" of L.I., Jr., to his parents.

While D.K.I. desired reunification with her parents, and the judge recognized the "extremely challenging case" (quoting Dr. Frank Dyer), involving the termination of this mother and daughter, the judge was convinced that T.I. could not resume parenting without substantial risks to the child, and that the risks of termination were outweighed by the stability of adoption.

L.I., Jr., has been in the continuous care of his foster mother since shortly before his second birthday, for over two- and-half years. Both Dr. Williams and Dr. Dyer opined that while L.I., Jr., was familiar with his parents, he is not bonded to them and removing him from his foster mother's care would cause him to suffer severe and lasting psychological harm. Given both parents' demonstrated unwillingness or inability to comply with the counseling and other services that have been offered to them to help them become stable parents, the decision to terminate their parental rights with regard to L.I., Jr., cannot be overturned.

D.K.I. presents a more difficult case. She has expressed her desire to live with her birth parents. However, the record supports the finding that her birth parents have consistently demonstrated an inability to provide the stable environment that this eleven year old needs. Their refusal to recognize her sexual assault by T.I.'s older sons and the impact of exposing her to sexual activity and domestic violence, as well as their refusal to take advantage of the services offered to them to enable them to properly provide for her renders it highly unlikely that they could properly parent D.K.I. Despite the numerous opportunities T.I. had to act as a mother, over the ten year period DYFS has been involved with the family she has never fulfilled her obligation.

The record supports Judge Callahan's conclusion that D.K.I. and L.I., Jr., have been significantly harmed by the actions and inaction of both of their parents. While the issue is closer with respect to D.K.I. due to her age, the length of time she lived with her parents and her stated preference to live with them, D.K.I. has witnessed domestic violence in the house and was permitted to observe her parents having sex on multiple occasions. She was also the victim of sexual abuse at the hands of her older half-brothers, T. and R. Moreover, T.I.'s denial that she played any role in enabling the abuse to occur underlies her lack of progress in developing necessary parenting skills to protect her children in the future. To that end, T.I. consistently failed to comply with court ordered counseling, which could have provided her with parenting skills. Similarly, L.I.'s denials present a significant risk of harm to the children.

In essence, the trial court properly considered the statutory test and totality of the circumstances, including defendants' own relationship and their relationship with T.I.'s other children. M.M. was not decided when Judge Callahan rendered his decision, but the fact that defendants consider reconciliation and unification of the family, that L.I. abused the older children and that the older children abused D.K.I. all combine, particularly in light of defendants' failure to recognize the problems, to sustain Judge Callahan's findings. We also find significant that Dr. Dyer, who in 2003 counseled against termination of T.I.'s parental rights, saw no progress in the three years since that time.

The judgment of termination as to both defendants and both children is affirmed.

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