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New Jersey Division of Youth and Family Services v. R.T.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 1, 2007

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
R.T., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF R.E.T, JR., B.A.T. AND S.A.T., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-51-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 24, 2007

Before Judges Gilroy and Lihotz.

R.T., the father of three children: R.E.T, Jr., born on February 14, 1995, B.A.T., born on August 20, 1996, and S.A.T., born on January 21, 2006, appeals from the final judgment of the Family Part terminating his parental rights and awarding guardianship to the Division of Youth and Family Services (DYFS or Division) for purposes of consenting to adoption. The judgment additionally terminated the parental rights of C.T., the children's mother. She has not appealed.

Our Legislature has recognized the importance of strengthening and preserving the integrity of family life, but it has also recognized that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1a. The best interest standard, initially formulated by the Court in N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified in N.J.S.A. 30:4C-15.1a, requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:

(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.]

These requirements are not discrete; they overlap to provide a composite picture of what may be necessary to advance the best interests of the children. The considerations involved in determining parental fitness are extremely fact sensitive and require particularized evidence that addresses the specific circumstances present in each case. In re Guardianship of K.H.O., 161 N.J. 337, 346-48 (1999).

On appeal, R.T. presents the following arguments for our consideration:

POINT I

THE DIVISION OF YOUTH AND FAMILY SERVICES FAILED TO MEET ITS BURDEN TO ESTABLISH EACH OF THE FOUR PRONGS OF N.J.S.A. 30:4[(C)]-15.1 WITH REGARD TO THE BIOLOGICAL FATHER, R.T., AND, THEREFORE, HIS PARENTAL RIGHTS SHOULD BE REINSTATED.

POINT II

THE TRIAL JUDGE IMPROPERLY RULED AS TO THE ADMISSIBILITY OF HEARSAY EVIDENCE.

POINT III

THE TRIAL JUDGE IMPROPERLY ADMITTED INTO EVIDENCE DOCUMENTS REGARDING UNSUBSTANTIATED OR UNFOUNDED CLAIMS OF WHICH THE PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED BY THE PREJUDICIAL NATURE OF THE EVIDENCE.

I.

During the three-day guardianship trial, DYFS presented the testimony of its case worker; a school social worker, and a Bergen County Prosecutor's Office detective, who each interviewed B.A.T. regarding allegations of sexual abuse by R.T.; a therapist at the Bergen Family Center who supervised the initial joint and individual therapy of B.A.T. and R.E.T.; and its expert, Alice S. Nadelman, Ph.D., who performed psychological evaluations of R.T. and C.T., and bonding assessments of the children. The Division also entered as evidence its case file from all past and current interactions with the family, which included medical examinations of B.A.T. and R.E.T. dated April 24, 2004, and the children's school evaluations and records.

R.T. did not appear or testify. C.T. did not testify. Neither parent presented expert testimony.

The Division's interaction with R.T. and his wife C.T., with reference to this litigation*fn1 , commenced following B.A.T.'s interview with a school social worker, Evelyn Elbogen. Elbogen talked to B.A.T. when a teacher discovered bruises on her forehead. Elbogen testified that B.A.T. had "a hard time communicating. She wasn't always clear. She wasn't always focused." B.A.T.'s school records state she is cognitively impaired.

During the one-hour interview, Elbogen described B.A.T.'s change in affect as she related that her father hit her with a beer bottle causing her bruised head, that he entered the bathroom while she bathed and prevented her mother from entering, that her father touched her between her legs with his hands, and that he touched her mouth with "[w]hat boys have."

B.A.T. also made statements suggesting physical interactions between R.T. and C.T. occurred, and that she and R.E.T. were physically disciplined by R.T. On cross-examination, Elbogen admitted she had no formal training interviewing sexually abused children, that her notes were completed after the interview, not while the child made her statements, and that in the course of the interview she, at times, asked the child leading questions.

B.A.T. was next interviewed by Detective First Grade, Cecelia Love, of the Bergen County Prosecutor's Office on April 24, 2004. B.A.T.'s initial response to Detective Love's inquiry was that no one had touched her inappropriately. She also responded negatively to questions about her father touching her. Detective Love testified that later in the interview, B.A.T. acknowledged R.T. had touched "the butt and the vagina." B.A.T. demonstrated the interaction with her father using anatomically correct dolls. Both C.T. and R.T. denied that any acts of abuse, sexual or otherwise, occurred.

During a medical examination conducted that same date, B.A.T. made "no clear disclosure of sexual abuse" and her "general physical examination revealed no abnormalities except for a number of nonspecific well-healed scars and marks. [B.A.T.] provided plausible accidental explanations for these marks." The finding was "no acute or chronic trauma," which could "neither confirm[] nor den[y] the possibility of sexual or physical abuse."

Christie Barta of the Bergen Family Center related the children's disclosures during therapy sessions. R.E.T. stated R.T. hit C.T. almost daily and had hit B.A.T. Similarly, B.A.T. discussed physical altercations when R.T. struck her and C.T. Barta also discussed B.A.T.'s statements regarding the alleged sexual abuse, which included: "my daddy sexed me." The child then demonstrated the behavior with anatomical dolls.

Barta asserted that when therapy ceased, R.E.T. continued to demonstrate symptoms of a child who was a victim of trauma. B.A.T. demonstrated symptoms consistent with a child who has experienced sexual abuse, including one instance during a therapy session when she "wet her pants" and another when she "disassociated," which Barta described as "when the child was not present with you at the time."

Dr. Nadelman's initial examination of R.T. was completed over a six-hour period on March 18 and 31, 2005. A second evaluation was conducted in July 2006. Although R.T. denied all allegations of sexual abuse and domestic violence, he admitted he entered B.A.T.'s bedroom on one occasion while naked to be certain she had not covered her face with a large stuffed animal. He also stated that he and C.T. had fights and sometimes "it got a little rough."

C.T. was interviewed by Dr. Nadelman. C.T. declared that B.A.T. never expressed or exhibited signs that she was sexually abused by R.T. C.T. had been an incest victim. She asserted she would not tolerate R.T.'s sexual abuse of the children. In fact, she stated that if R.T. had done that she "would have to kill him." C.T. also generally denied the existence of domestic violence in her relationship with R.T.

Dr. Nadelman concluded, after administration of standardized tests and her first interview, that R.T. suffered "significant emotional disturbance"; that he "showed significant depression, and moderate anxiety." Dr. Nadelman concluded R.T. could not safely parent his children as he lacked "the emotional resources, the psychological energy to . . . even take care of himself . . . [and] he was not addressing his needs."

Prior to Dr. Nadelman's follow-up evaluation of R.T., a documented incident of domestic violence occurred on May 2, 2006. At that time, C.T., while arguing with R.T., drew a knife; C.T.'s ear and hand were injured. Both parties were arrested and C.T. was incarcerated. R.T. downplayed the significance of the event, suggesting C.T. was very upset regarding the children and had been drinking.

After the second interview, Dr. Nadelman noted that R.T.'s functioning had improved. Nevertheless, Dr. Nadelman concluded R.T. lacked understanding of the children's needs and of the risks posed by his interactions with C.T. Further, because R.T. made no effort to ameliorate these risks, the children would be in danger if returned to his care. She testified this opinion did not "depend on the conclusion that [R.T.] actually did sexually abuse [B.E.T.]."

Dr. Nadelman's assessment of R.E.T. revealed "a great deal of sexual preoccupation." Dr. Nadelman testified R.E.T. blamed B.A.T. for their removal from their parent's home, stating "[B.A.T.] told on dad something bad that didn't happen. And [that] . . . dad wouldn't do that and I wouldn't do that." Dr. Nadelman felt it significant that R.E.T. "was clearly aware that there were sexual allegations. And it's very unusual . . . especially for a ten year old, . . . to insert himself even as . . . a denial of . . . sexual allegations." Testing showed that R.E.T. "has greater sexual preoccupation and distress than 98 percent of children his age." Dr. Nadelman concluded R.E.T. was in distress; "that within him there was a turmoil of raging emotions, including anger, sadness, rage, and fear . . . ."

R.E.T. commented that he wished his parents would not "fight so much" and that his dad would not hit or scream at his mom.

R.E.T. expressed that R.T. disciplines him and B.A.T. with his hand and a belt. Dr. Nadelman determined R.E.T. had "poor impulse control and extreme sexual concerns" such that he needed "not only therapy, but close supervision and protection, and really high-quality parenting."

Dr. Nadelman's assessment of B.A.T. revealed that the child believed she was removed from her parents because they "had too many fights with each other." B.A.T. also stated "Daddy came into my room and lied on top of me like he lied on top of mommy" and "did that stuff to me." She then demonstrated the incident with dolls. Dr. Nadelman did not perform a full sexual abuse validation inquiry. She concluded B.A.T.'s account of events was credible, and "more credible than [R.T.'s] denial."

R.E.T. was initially placed with his foster family in August 2004. In keeping with his strong attachment to his biological parents, R.E.T. expressed a desire to return to his parents. Dr. Nadelman opined R.E.T. would experience a "meaningful loss if parental rights were terminated." R.E.T. demonstrated comfort and ease in his foster placement addressing future events that included them. Dr. Nadelman opined that the foster parents had the capacity and willingness to alleviate this loss to avoid enduring harm to R.E.T.

B.A.T. was placed in April 2004, and remains with that foster mother. No concerns regarding the foster parent's ability to continue to address B.A.T.'s needs were expressed.

S.A.T. was placed in January 2006, and remains in her placement. Each resource family has expressed interest in pursuing the adoption of the child placed in their care.

R.T. has not seen B.A.T. since her placement. He has not consistently complied with the scheduled visitations with R.E.T. and S.A.T. Transportation difficulties and work obligations explain some of the missed visits. R.T. has not participated in an alcohol assessment or domestic violence counseling; he has attended some psychotherapy sessions.

II.

After considering all of the evidence adduced at trial, the trial court, in a perfunctory opinion, determined that the State had proved each of the four statutory standards by clear and convincing evidence and that "neither parent is able to adequately and safely parent any of the children."

Our review of a trial judge's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record. In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993). Particular deference is afforded to decisions on issues of credibility. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). There is an exception to that general rule of deference: Where the issue to be decided is an "alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," we expand the scope of our review. In re J.T., supra, 269 N.J. Super. at 188-89. Despite such circumstances, deference will still be accorded the trial judge's findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken. Ibid. With that standard and its exceptions in mind, we proceed with our analysis.

Neither R.T. nor C.T. provided testimony or evidence to rebut, refute or even dispute the evidence submitted by DYFS.

It is the Division's uncontraverted case, which will be reviewed to address R.T.'s challenges raised on appeal and to determine whether the Division has satisfied each prong of the statutory test found in N.J.S.A. 30:4C-15.1a, by clear and convincing evidence.

III.

As to the admissibility of hearsay evidence, R.T. does not challenge that reports by DYFS staff personnel or professional consultants "shall be permitted to [be] submit[ted] into evidence," and "[c]onclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." R. 5:12-4(d). He challenges as error, however, the admissibility of B.A.T.'s statements to Elbogen and the videotaped police interview of the child, absent a prior determination of the trustworthiness of the statements. The question presented is whether the testimony regarding the child's extra-judicial statements about the sexual assault is admissible under the tender years exception to the hearsay rule, N.J.R.E. 803(c)(27). The rule provides in pertinent part:

A statement by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if

(a) the proponent of the statement makes known to the adverse party his intention to offer the statement and the particulars of the statement at such time as to provide him with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse; [N.J.R.E. 803(c)(27).]

We do not agree that the trial judge erred by not conducting a Rule 104 hearing. See State in Interest of S.M., 284 N.J. Super. 611, 620-21 (App. Div. 1995). As the trier of fact, the trial judge was aware of his responsibility to determine trustworthiness of the child's statements. However, he made no specific finding in that regard and, otherwise, failed to determine the availability of the child, her competence to provide testimony, or if she were unavailable that sufficient admissible of the abuse was presented. N.J.R.E. 803(c)(27).

The Division asserts the child's statements are admissible pursuant to N.J.S.A. 9:6-8.46a(4), which provides that in any hearing under the statute, "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." The statute also applies to a Title 30 proceeding. N.J. Div. of Youth and Family Serv's v. F.H. and A.H., 389 N.J. Super. 576, 609 (App. Div. 2007).

Notwithstanding the applicability of the statute, as we noted, the trial judge made no finding of whether corroborating evidence of the sexual abuse was presented. It is improper for us "to engage in an independent assessment of the evidence as if [we] were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). We conclude that the trial court erred in this regard and, therefore, the child's statements to Elbogen and the police video tape will not be considered in our review of the evidence presented to support a judgment of guardianship.

IV.

The second evidential challenge presented by R.T. contends that the trial court erred in introducing correspondence relating to the termination of housing assistance to R.T. and C.T. We decline to address this issue, as the trial court expressed no reliance on these documents and made no mention on the stability of the parents' housing in reaching its conclusions. Therefore, any error would be harmless in that it was not "clearly capable of producing an unjust result." R. 2:10-2; Campo v. Tama, 133 N.J. 123, 132 (1993).

V.

We next review whether the trial judge's remaining findings of fact are supported by adequate, substantial, and credible evidence in the record to sustain a conclusion to terminate R.T.'s parental rights. In this regard the State must establish each prong of the statutory test by clear and convincing evidence.

As to the first factor, the focus is on the effect of harm on the child's health and development, arising over time from the parent-child relationship. K.H.O., supra, 161 N.J. at 348. A parent's inability to provide a caring and nurturing family is a harm that satisfies the first prong of the test. In Re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

Although, on this record, we cannot concur with the trial court's finding that R.T. sexually abused his daughter, we do concur with his finding of sufficient evidence of harm to these children, which includes inappropriate exposure to sexual activity and domestic violence, satisfying the first statutory prong.

The psychological evaluation by Dr. Nadelman revealed that both R.E.T. and B.A.T. presented themselves as traumatized children. It is also uncontroverted that both R.E.T. and B.A.T. exhibited knowledge of sexual practices beyond that reasonably anticipated for their age. Each had particularized knowledge of various sexual activity demonstrating that they had been exposed to sexually inappropriately behavior. "It is well accepted that such age-inappropriate behavior is one of the behavioral signs associated with child sexual abuse." New Jersey Div. of Youth and Family Servs v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002); see also State v. J.Q., 130 N.J. 554, 563-64 (1993) (citing John E. B. Myers et al., Expert Testimony in Child Sexual Abuse Litigation, 68 Neb. L. Rev. 1, 61 (1989)).

Despite R.T.'s denial of any inappropriate interactions, he admitted attending to B.A.T. while naked. The trial court found his stated explanations in this regard were incredible. Considering the judge's "feel of the case" based upon his opportunity to see and hear the witnesses, Cesare, supra, 154 N.J. at 412, it will not be disturbed. Add to these facts R.T.'s defensive reply to Detective Love when questioned about entering his daughter's room while naked, in which he suggested there was no harm to B.A.T. viewing him because he did not have "an erection." This comment evidences R.T.'s inability to understand the ramifications of his conduct, reinforcing the likelihood it will continue.

Additionally, the trial court found both children viewed the violent interaction of their parents. R.T. agreed that during arguments, things "got rough." The domestic incident of May 2, 2006, resulting in the parties' arrest, corroborates that their existed a violence-laced relationship between C.T. and R.T. to which these children were exposed.

R.T.'s attempts to minimize the impact of the traumatic events on the children, his inability to recognize the specific needs of his children, and his unwillingness to acknowledge parenting problems, which needed to be rectified, all contributed to the harm suffered by these children, further satisfying the first prong of the statutory test.

The second prong requires the court to determine if it is reasonably foreseeable that the parent can cease to inflict harm upon the children. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 117 (App. Div.), certif. denied, 180 N.J. 456 (2004) (quoting A.W., supra, 103 N.J. at 607). An inability to provide a stable home is a factor that may be considered when examining this prong of the statutory test. Id.

During the children's out-of-home placement, the trial court found that R.T. displayed an inability or unwillingness to engage in services extended by the Division. Specifically, R.T. delayed attending the initial psychological examination with Dr. Nadelman; rejected the apparent need for therapy to address his depression and anxiety because he distrusted the Division's motives; failed to follow-up on a recommended assessment to eliminate possible concerns about alcohol abuse; and never attended anger related counseling or therapy when recommended.

Dr. Nadelman's conclusions, which were heavily relied upon by the trial court, provided insight on this issue as follows:

[R.T] showed very little ability to become an adequate parent to either of his children. He put his own needs and feelings first and was virtually unable to consider the needs of his children. He wants his children returned to him so they can make him feel better and make him proud. He said he will not be able to function until his family is back together. He has failed at so many things in his life and he desperately does not want to fail as a father. However, this is about what he wants and needs and not about his children's needs. [R.T.] did not show the psychological resources or motivation to work toward meaningful reunification.

He showed no desire or capacity to deal with the emotional needs of his children or to help them to heal from the trauma they have experienced. It is the essential conclusion of this evaluation based on integration of all the data that [R.T.] did not show the capacity to become a safe and appropriate parent for either of his young children, now or in the foreseeable future.

Notwithstanding the extensive attempts to aid R.T., he failed to alleviate the harms befalling the children by refusing to accept that any problems were present.

The above discussion illustrates the reasonable efforts made by DYFS to encourage and facilitate continued parental visits and to refer R.T. to a variety of treatment programs. See K.H.O., supra, 161 N.J. at 354; C.S., supra, 367 N.J. Super. at 85-90.

The trial court also found that the Division explored alternative relative placements. The maternal grandmother was rejected due to her inability to protect C.T. from sexual abuse. The paternal grandmother was denied approval by the New York child protective services agency, preventing an interstate placement. Accordingly, we determine that DYFS has met its burden.

Finally, where a child is in foster care, the statute requires an examination of the relationship with both his foster parents and his biological parents and a determination of the potential harm that may result from a severing of either relationship. K.H.O., supra, 161 N.J. at 354-55. When a termination action is not based on bonding between the child and foster parents, the inquiry is focused on the child's need for permanency and the parent's inability to care for the child in the foreseeable future. N.J. Div. of Youth and Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996). There exists no expectation that R.T. will engage the necessary treatment to resolve the harm experienced by the children, thus placing them at continued great risk if returned to his custody. Termination of R.T.'s parental rights would not do more harm than good as, with the passage of three years' time, R.E.T. and B.A.T. have developed bonds with their respective foster families, gaining a sense of permanency, which would cause significant harm were these relationships lost. See M.M., supra, 189 N.J. at 293. As to S.A.T., she has continuously been in the care of her foster family since birth. Due to inconsistent visitation compliance by R.T., S.A.T. has no definable relationship with him. A termination of R.T.'s parental rights will not cause harm as no parent-child relationship has been established with S.A.T.

After reviewing the record and applicable law in light of the contentions advanced on appeal, we conclude that the trial court's findings are supported by substantial credible evidence, and its conclusions predicated on those findings are legally sound.

Affirmed.


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