On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FG-15-51-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 21, 2007
Before Judges Lisa and Holston, Jr.
Defendant, R.L., appeals the Family Part's October 3, 2006, judgment of guardianship by which R.L.'s parental rights to his minor daughters, S.A.L., born April 17, 2004, and L.R., born April 14, 2005, were terminated and guardianship of S.A.L. and L.R. was awarded to the New Jersey Division of Youth and Family Services (DYFS).*fn1
R.L., age fifty-one, and L.A.R., age twenty-three years, are the biological parents of S.A.L. and L.R. S.A.L. has been in DYFS custody since nine days after her birth. L.R. was placed with DYFS immediately upon her release from the hospital after her birth. Both children are in the same foster home placement and have been in the same placement since shortly after their births.
The following testimony was given by Pauline Hart, the DYFS worker from December 2004 to April 2005, Amy Dudley, the DYFS worker from November 2005 to the date of trial, and Dr. Allen Lee, the psychologist retained by DYFS.
The first DYFS referral, when S.A.L. was nine days old, came from the New York child protection agency. L.A.R.'s parental rights to a one-and-one-half-year-old son were in the process of being terminated in a guardianship action in New York, as a result of L.A.R.'s inability to care for her child due to multiple psychiatric disorders, possible alcohol and substance abuse and an unstructured and chaotic life.
L.A.R. was evaluated for DYFS by Dr. Iofin, a psychiatrist, who diagnosed L.A.R. with depressive disorder, NOS, provisional major depressive disorder, and recurrent provisional cannabis use. Dr. Iofin stated that L.A.R. has a learning disability and was herself a victim of neglect and sexual abuse. Dr. Iofin noted L.A.R.'s paramour, R.L., had a criminal record, which included charges of sexual molestation of a minor.
On April 27, 2004, DYFS filed an order to show cause (OSC) and verified complaint seeking custody of S.A.L., which was granted. L.A.R. was referred to Preferred Behavioral Health but L.A.R. declined treatment. L.A.R. began but failed to complete parenting classes. L.A.R. was also offered a substance abuse evaluation but did not appear. As respects R.L., the referral response report indicated he had been "brought up on sexual assault charges" and that there was a DYFS case opened with respect to R.L. and the child born from the sexual assault.
Therefore, DYFS determined that S.A.L.'s removal from the home
L.A.R. shared with R.L. was warranted, because R.L. had recent sexual assault charges pending against him and was thus ruled out as a caretaker.
On March 9, 2005, there was a permanency hearing with regard to S.A.L. It was determined that it was unsafe to return S.A.L. to L.A.R. because of mental health concerns of L.A.R. and L.A.R.'s non-compliance with services offered her at Preferred Behavioral Health as well as her failure to complete parenting classes. Prior to the permanency hearing, R.L. had pled guilty to second-degree sexual assault of a thirteen-year-old girl. The girl gave birth to L.R.'s child when she was age fourteen and he was age forty-one. The sexual assaults continued for a period of five years. R.L., in addition, has an extensive criminal history for multiple offenses, beginning in 1976, resulting in incarceration, parole, probation and violations of probation. L.R. was sentenced to a four-year term of incarceration for the sexual assault. As a result, neither parent was deemed a suitable caregiver for S.A.L. and termination of parental rights was determined by the court to be the appropriate permanency plan.
On April 14, 2005, DYFS learned that L.A.R. had given birth to L.R. On that date, DYFS immediately placed L.R. in a pre-adoptive foster home. DYFS explored relatives for the placement of both girls, including J.A.L., an adult daughter of R.L., and maternal relatives, all of whom were ruled out. J.A.L. was ruled out because J.A.L.'s live-in boyfriend's conviction on a narcotics charge disqualified her from placement pursuant to N.J.S.A. 30:4C-26.8e(3). J.A.L. did not appeal DYFS's reasons for her disqualification.
Before R.L.'s incarceration, DYFS offered him supervised visitation of S.A.L. and parenting classes. R.L. participated in some classes, but there was minimal compliance and he did not finish them.
On November 30, 2005, a psychological evaluation of R.L. was conducted by Dr. Lee at the Mid-State Correctional Facility. Dr. Lee described R.L. as externalizing blame onto other people for his dilemma. Dr. Lee observed R.L. to be hypervigilant, sensitive to perceived slights, frustrated, loud, grandiose and entitled.
Dr. Lee administered two psychological tests on R.L., the personality assessment inventory and the child abuse potential inventory. Dr. Lee made an axis one diagnosis of impulse control disorder NOS with rule out intermittent explosive disorder and paraphilia NOS. On axis two, Dr. Lee diagnosed R.L. with anti-social personality disorder with paranoid narcissistic and borderline traits, which he testified was his primary diagnosis. Axis four psychosocial stressors included R.L.'s incarceration, history of recurring criminal problems, past DYFS involvement and the placement of his children. Dr. Lee described R.L.'s level of functioning as a 58 on a scale of 1 to 100, reflecting an ongoing level of impairment.
Dr. Lee had significant concerns about R.L.'s capacity to care for a minor child, then or in the foreseeable future. Dr. Lee concluded that R.L. had very ingrained and maladaptive character traits causing him to function at a maturity level less than expected for an adult, resulting in problems sustaining himself within the community in a responsible manner. Dr. Lee stated that his conclusion is evidenced by R.L.'s multiple incarcerations, jail admissions, and multiple periods of parole and probation, some of which he has violated.
Dr. Lee stated R.L. presents at a heightened level of criminal recidivism and sexual recidivism, because he is characteristically angry, irritable, hostile, explosive and impulsive. As a result, Dr. Lee opined that R.L. was not in a position to adequately care for a child on his own.
Dr. Lee determined R.L.'s prognosis was quite poor, even though he had participated in some services while incarcerated, because of the ingrained nature of his character traits as evidenced by his recurring criminal problems, including two incarcerations. R.L. told Dr. Lee that he was serving a four-year flat term of imprisonment for sexual assault with a maximum release date of December 2008. Dr. Lee was concerned with R.L.'s minimization and distortion of his responsibility for the sexual assault offense. Dr. Lee opined R.L. would have to participate in services for a minimum of twelve to fifteen months to ameliorate his problems, although even then he would be incapable of being a caregiver to younger children.
Dr. Lee conducted bonding evaluations between the foster parents and S.A.L. and L.R., and R.L. and each of the children, on January 3, 2006. Although, because of the ages of the children, Dr. Lee did not conclude the children would suffer irrevocable harm if separated from their foster parents, Dr. Lee opined that R.L. was not in a position to care for the two children, either at the time of the evaluations or within the foreseeable future. Dr. Lee stated:
These two children have spent a substantial portion of their respective lives, for the child [L.R.] she's essentially spent her whole life and for the child [S.A.L.] has spent nearly half of her life with these caregivers and while there was not the compelling and unequivocal evidence of a psychological bond, it certainly appears that everything is moving in that direction, if you would. These children enjoy these caregivers, they respond very well to the caregivers, they feel nurtured, supported, guided by the caregivers. . . .
Certainly all children need permanency. To delay permanency jeopardizes a child 's opportunities to form a sense of consistency in his or her life and these types of delays can exacerbate a child's emotional and behavioral development and exacerbate their self-concept, their self-esteem and their ability to form other relationships, so certainly the notion of permanency especially at this point where the children have been already out of the birth parents' care for substantial portions of their lives is important.
Dr. Lee found no bond between R.L. and L.R. and an insignificant psychological attachment between R.L. and S.A.L.
Amy Dudley testified as to her contact with the case from November 2005 until May 2006. She also testified from the DYFS records of Amy Lutz, the case worker between Hart and herself. Dudley indicated she had observed the interaction of the children with their foster parents. She described the girls as "thriving in [their] home." Dudley ...