January 2, 2008
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
L.L. AND T.A., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF H.L., J.L., T.J.A., T.M.A., AND B.A., MINORS
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, FG-19-12-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2007
Before Judges Grall and Chambers.
In separate appeals, which we have consolidated, L.L., the mother, and T.A., the father, appeal from the decisions terminating their parental rights to their three children, T.J.A., born in November 1998, T.M.A., born in January 2000, and B.A., born in December 2000. L.L. also had two older children, H.L., born in January 1994, and J.L., born in December 1995, and she appeals from the decision terminating her parental rights to these children as well. A.G., the father of the two older children, H.L. and J.L., was dismissed from this case, and no issues regarding his parental rights are before us.*fn1 The law guardian for the children and the New Jersey Division of Youth and Family Services (DYFS) have filed briefs in support of the trial court's decision.
DYFS became involved with this family on June 24, 2004, at the request of Monroe County Children and Youth Services of Pennsylvania (MCCYS). MCCYS was attempting to assist the family due to the mother's drug use, the family's lack of stable housing, and the diabetic condition of H.L. Further, H.L. and J.L. had been removed from school before the end of the school term. When L.L. reported to MCCYS that she and her family had moved to a motel in New Jersey, MCCYS gave DYFS the address.
DYFS's initial investigation revealed no neglect of the children. L.L. had a supply of insulin for H.L. sufficient for one month. However, in a urine test thereafter administered at the request of DYFS, L.L. tested positive for cocaine.
On August 2, 2004, the police contacted DYFS. After having a fight with T.A., L.L. had left the motel with the three youngest children (the oldest two were at camp), and went to a local bar where she got into an altercation with two patrons. She then left and was arrested driving her van while intoxicated. Her three youngest children, then ages three, four and five, were in the vehicle, without the protection of car seats. The police were unable to return the children to T.A. because he also was intoxicated.
DYFS obtained custody of the children on August 3, 2004, due to the events that preceding night. The children were described as dirty with heavy body odor. They were placed with foster parents. One child, B.A., was diagnosed as failing to thrive and is now diagnosed as medically fragile. The foster parents discovered that another one of the older children lacked basic habits essential for hygiene. Statements from some of the children indicated domestic violence between the parents. Although both parents initially denied any domestic violence, L.L. later acknowledged domestic violence.
In 1998, L.L. had been arrested in Arizona for driving while under the influence of alcohol. In May 2004, she was involved in a head on collision in Pennsylvania when driving while intoxicated and was charged with aggravated assault and driving while under the influence of alcohol.
In early 2005, L.L. successfully completed a twenty-eight day inpatient program for substance dependency. At the behest of DYFS, she also attended anger management and domestic violence programs, and couples and individual counseling, and participated in the requested psychological and bonding evaluations.
Dr. Frank Dyer, the psychologist who evaluated L.L. and appeared on behalf of DYFS, described L.L. as a person with alcohol and substance abuse problems who was in denial. While finding L.L. articulate, bright and personable, he also noted that she has an anxiety disorder and a personality disorder with vulnerability to severe depression. He concluded that she "should not be considered as a viable candidate for custody of any of the children." L.L.'s own psychological expert, Dr. Mark Singer, stated in his March 14, 2006, report that the "psychological data does not support reunification at this time" and that L.L. is unable to "provide her children with a safe, stable, and consistent home environment at this time." He listed nine steps, including counseling and therapy, for L.L. to take in order to assist her in becoming "a more viable placement option for her children."
T.A., the father of the three youngest children, works in an auto body shop in Pennsylvania. He has a limited history of substance abuse. While Dr. Dyer found T.A. to be intelligent, articulate and personable, the Doctor also indicated that T.A. had a personality disorder "notable for an anti-social component." Most significantly, T.A. has been passive in these proceedings. He missed the two mediation sessions and a court hearing that offered an opportunity to put together a plan of reunification. Of the eleven hearing dates scheduled in this matter, he attended only one in person and participated telephonically in five. Of the fifty-seven visits scheduled with the children from the time of their removal until the trial, T.A. attended only fourteen. He did not appear for his bonding evaluation with Dr. Singer, although he did attend the bonding evaluation conducted by Dr. Dyer. While some of these absences can be explained by his demanding job, Dr. Dyer noted that the extent of his non-participation reflected "rather poorly on his commitment level" to parenting the children. Dr. Dyer testified that T.A. also "should not be considered as a viable candidate for custody of any of these children."
At the time of the trial, the circumstances of the children differed. Based on his bonding evaluation, Dr. Dyer concluded that all five children have positive emotional attachments to L.L. and T.A. Dr. Singer's report also revealed a warm and appropriate relationship between L.L. and the children.
While H.L., the oldest child, loves her birth mother and has a positive connection with T.A., she is thriving in the stable and supportive atmosphere of her foster home where she has been placed since September 2004. That family wants to adopt her. Dr. Dyer expressed his opinion that if H.L. were adopted she "would be able to weather that transition without extreme distress."
J.L., the second oldest child and B.A., the youngest child, have been in the same foster home together. While the family was not initially interested in adoption, by the last hearing date, in January 2007, the family wanted to adopt. Dr. Dyer indicated that if parental rights of the mother were terminated, J.L. would "suffer a significant psychological loss that would place her at risk for long-term harm." B.A. has a positive relationship with L.L., but nothing in the evaluations provided by either expert indicates that he would suffer a severe adverse psychological reaction if parental rights as to him were terminated.
T.J.A. and T.M.A. had been placed together in a foster home in August 2004, where they remained until July 2006. At that time they were placed with a second foster family which is no longer interested in adoption. As a result, DYFS indicated that T.J.A. and T.M.A. were being transferred to another foster home that did want to adopt. In addition, DYFS advised that it had identified another family willing to consider adopting the youngest four children, and yet another family still going through the approval process, willing to consider all five children. Dr. Dyer opined that if T.J.A. and T.M.A. were adopted and had no further contact with the birthparents, they would "suffer a traumatic loss that would be very likely to inflict severe and enduring psychological harm."
Despite his opinion on likely adverse psychological consequences for the children, Dr. Dyer concluded that termination would be better for the children than reunification. He found that the risk of harm they would face if returned to the parents outweighed the risk of psychological harm they would endure if parental rights were terminated.
Dr. Singer, the psychologist who testified for L.L., also found a warm and secure attachment between the children and L.L. Although he found that severing that bond would cause psychological harm to the children, he could not recommend reunification at that time. As noted above, he recommended various steps L.L. would need to take in order to provide the care her children required.
The trial judge delivered an oral decision on October 27, 2006, terminating the parental rights of T.A. He found clear and convincing evidence establishing each of the four prongs of the best interests standard set forth in N.J.S.A. 30:4C-15.1(a). That statute permits termination of parental rights where:
(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.
In terminating T.A.'s parental rights, the trial court found that while T.A. is a hardworking individual who assumed the role of a provider for the family, he was "not attending to the day-to-day care of the children, leaving that responsibility to [L.L.], who repeatedly demonstrated her failure to care for the children and supervise them appropriately," and that he abdicated his responsibilities as a parent. The trial court also considered T.A.'s history of substance abuse and domestic violence and his personality disorder. The trial court found that:
I'm satisfied, based upon his [T.A.'s] lack of cooperation and his failure to attend these proceedings in any meaningful way, that he is unable or unwilling to eliminate the harm facing the children and he's unable or unwilling to provide a safe and stable home for the children. . . . [H]e has just done too little and his efforts to be a meaningful parent for these children, his own biological children, falls short. . . . He does appear to be a caring person whom the children have a relationship with, but I am satisfied that he is never going to change. He is never going to be more than a father figure, and not a parent in any meaningful way.
L.L. was not present in the courtroom during trial. In September 2006, she began serving a one to three-year sentence for her 2004 assault by motor vehicle in Pennsylvania. Although she was in prison, she participated in the trial via telephone. Her first parole hearing was scheduled for June 2007.
On January 24, 2007, after concluding the testimony on L.L.'s case, the trial judge delivered an oral decision terminating her parental rights. He explained that he did not consider her incarceration a determinative factor and that if L.L. were capable of being a fit parent and her period of incarceration was going to be relatively brief, he would not terminate parental rights based on that factor alone. Once again the trial judge reviewed the evidence in light of the four-pronged standard set forth in N.J.S.A. 30:4C-15.1(a) and concluded that DYFS had established grounds for termination by clear and convincing evidence.
Relying on Dr. Dyer's testimony, the trial judge noted that "[p]erhaps the most formidable obstacle to [L.L.] adequately parenting her children is her complete denial of substance abuse problems and her obvious vulnerability in this area," and indicated that any child in her care would be at risk. In considering the alternatives to termination of parental rights, the trial judge noted:
I have considered also the alternatives to the termination of parental rights. It seems to me that in this case the only alternative that could be considered is an almost perpetual foster care which would not be appropriate for the children. The uncertainty that they would face in their lives, the lack of providing for meaningful parenting, the neglect that they would face even under the best of circumstances, emotional neglect, lack of permanency, would certainly do more harm to them than good.
They would be in a perpetual state of limbo if the parental relationship here were to be maintained.
When finding that termination would not do more harm than good, the trial court stated:
I am satisfied that these children need permanency, they need an environment where they can be cared for, where their health, safety and welfare will be protected by a parental figure. And I'm satisfied that
[L.L.] lacks the ability to do that now and in the future, in the foreseeable future, notwithstanding the fact that services may be made available to her and that she may participate in programs which will enable her to deal with her substance abuse issues as well as her alcohol problem.
We note that in making these decisions, the trial court, expressly mindful of N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 288-89 (2007), was careful to review the case with respect to each parent independently, since the fact that one parent is unfit does not necessarily mean that the other one is also unfit.
Our review of a decision by the trial court to terminate parental rights is limited, and we will not disturb the factual findings of the trial judge "unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). The trial court's decision in this case is well supported by the substantial, competent and credible evidence in the record, including the testimony and report of Dr. Dyer. See In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999) (stating that the trial court is in a better position than the appellate court to evaluate the credibility, qualifications and weight to be given an expert's testimony); Cesare v. Cesare, 154 N.J. 392, 413 (1998) (noting that "appellate courts should accord deference to family court fact finding").
We recognize the difficulty presented in this case because of the risk of harm from severance of the children's bond with L.L. and T.A. While both psychologists recognized that potential harm, neither found that T.A. or L.L. had the ability to take care of the children at that time. Dr. Dyer opined that the risk of harm if the children were returned to the parents outweighed the risk of harm if the parental rights were terminated. Although Dr. Singer outlined a plan with a potential to address the problems that preclude L.L. from providing the stability and care her children require, she was unavailable to begin the extensive program and ultimate success was not a certainty. At the conclusion of the trial, the children had already been in foster care for almost two and one-half years, and L.L. was still serving a sentence for injuries she inflicted on another. Under the circumstances, we cannot conclude that the judge erred in determining that termination of parental rights was warranted and less harmful than an indefinite period of assignment to the custody of DYFS with only the hope that their mother would be released on parole and achieve the capacity to care for her children by complying with Dr. Singer's nine-step program.