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Division of Youth and Family Services v. E.P.


January 15, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-7-278-05.

Per curiam.



Argued December 11, 2007

Before Judges Skillman and LeWinn.

These are consolidated appeals from a final judgment terminating defendants' parental rights to their minor children, J.P., born February 2, 2003, and M.P., born January 27, 2005. M.B. is the natural mother of these children, and E.P. is their natural father. Following a four-day trial, the court rendered its decision and entered the termination order on September 15, 2006.

Having reviewed the trial record, we conclude the trial judge's decision is soundly based on substantial credible evidence of record and, therefore, should not be disturbed on appeal. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). An appellate court should not overturn the factual findings of a trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Ibid. An appellate court should accord particular deference to a family court's fact finding, in recognition of that court's "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Here, Judge John Callahan rendered a comprehensive and thorough bench opinion, in which he addressed the statutory standards governing termination of parental rights, N.J.S.A. 30:4C-15.1(a)(1) to (4), as well as pertinent case law. In reaching his conclusions, the trial judge appropriately applied the controlling legal principles to the lay and expert evidence of record. Defendants' claims to the contrary are without merit. R. 2:11-3(e)(1)(E).

We affirm for the reasons set forth in Judge Callahan's opinion as set forth on the record on September 15, 2006. We add the following comments.

Defendants, though never married, had been in a relationship for about seven years as of the time of trial. M.B., then thirty-six years old, had six other children prior to her relationship with E.P. Those children all reside with M.B.'s mother. The record clearly established M.B.'s longstanding drug addiction problems, including her use of cocaine while pregnant with both J.P. and M.P.

The New Jersey Division of Youth and Family Services (DYFS) became involved with M.B. shortly before J.P.'s birth. Because that child was born with traces of cocaine in her system, DYFS placed a "hold" on the baby in the hospital and, with M.B.'s consent, released J.P. to the custody of E.P. and the maternal grandmother. DYFS required that M.B.'s parenting time with J.P. be supervised by E.P. or her mother. DYFS also made it clear to both defendants that J.P. would remain in this custodial arrangement only so long as they each complied with DYFS-required services. These services included a drug treatment program for M.B., and employment and housing assistance for E.P. as well as a drug and alcohol screening.

Unbeknownst to DYFS, E.P. removed J.P. from the maternal grandmother's residence and moved into a transitional housing unit with the child and M.B. When DYFS learned of this, on March 23, 2004, the caseworker immediately returned J.P. to the maternal grandmother's residence. E.P. claimed he believed DYFS' case plan permitted the move. However, as the trial judge noted in his decision, this belief was clearly inconsistent with the express terms of the case plan.

When defendants again removed J.P. from the maternal grandmother's residence in May 2004, the grandmother contacted DYFS and requested that J.P. be placed in foster care. The DYFS caseworker agreed and immediately removed J.P. from defendants' custody and placed her in foster care. J.P. was placed in her current foster home at the age of fifteen months.

Defendants appeared before the trial court on May 24, 2004, at which time whey were ordered to complete parenting classes and undergo psychological and drug evaluations. They were afforded weekly visitation with J.P. at DYFS' offices; however, their attendance at those visitation sessions was sporadic and inconsistent. In August 2004, following a fact-finding hearing, the trial court concluded that J.P. had been born drug-exposed and that E.P. had refused to submit to the DYFS-required drug screening. The DYFS caseworker referred both defendants for drug and alcohol evaluations on four occasions between July and October, 2004; both parties failed to appear on any of those dates.

Following a compliance review hearing on November 19, 2004, M.B. entered Project Sustain, a six-month in-patient drug program. While there, she gave birth to M.P. who was temporarily placed in her custody by DYFS. However, this rendered M.B. ineligible to remain in Project Sustain. When the trial court ordered M.P. to remain in the hospital until DYFS placed M.B. in a suitable program where she could take custody of the child, M.B. left Project Sustain, returned home and relapsed into drug use. Thereafter, M.B. was uncooperative with DYFS' efforts to place her in another drug treatment program.

M.P. was placed in foster care at this time, shortly after her birth.

DYFS referred E.P. for a drug evaluation on five dates in March-April 2005; he failed to appear on any of the scheduled dates. E.P. stated that he was "frustrated" by DYFS' refusal to work around his schedule which, at that time, consisted of his taking a welfare training course and obtaining two jobs which both lasted approximately one month. E.P. did finally undergo a drug evaluation on May 3, 2005, and tested negative for illegal drugs.

In anticipation of a permanency hearing, DYFS screened the maternal grandmother for possible placement of J.P and M.P. However, the DYFS caseworker determined that her residence, which already housed ten individuals, was not large enough to accommodate the two children. The maternal grandmother agreed with this assessment.

E.P. obtained full-time employment in February 2006 with the Urban League, where he remained employed at the time of trial. M.B. continued to attend a drug abuse program. During this period, both defendants had supervised weekly parenting time with J.P. and M.P. at a DYFS office. A DYFS caseworker testified at trial that many of these visits were "positive" and that J.P. looked "sad" at the end of some of them.*fn1

Several experts testified at trial. E.P.'s expert, Dr. Gerard A. Figurelli, opined that the father had "the capacity to act adequately in the role of parent." Based on his observations during a bonding evaluation, he concluded that J.P. "would suffer a significant emotional loss if her relationship to her biological father were terminated." Dr. Figurelli also conducted a bonding evaluation with J.P.'s foster parents and concluded the child "has a significantly emotionally attached relationship to her foster parents that is reciprocal in nature." Regarding M.P., Dr. Figurelli testified that her foster parents "appear to be developing a significantly emotionally attached relationship" with the child. He found that both M.P.'s and J.P.'s interactions with E.P. were "strikingly similar" to those with their foster parents. Dr. Figurelli noted M.P. tolerated abrupt separation from her father "without displaying any overt adverse reaction."

Dr. Andrew Brown testified as an expert for DYFS. He had first evaluated both defendants in 2004 pursuant to court order. Dr. Brown opined that M.B. "remains with poor insight into her behaviors." She does not demonstrate a readiness to parent, in his opinion. Regarding E.P., Dr. Brown's conclusions differed markedly from those of Dr. Figurelli. Dr. Brown found that E.P. was dependent on others and demonstrated coping patterns "characterized by lack of insight and/or excessive denial which would potentiate episodes of child endangerment." Based upon his bonding evaluation with defendants and J.P., Dr. Brown opined that termination of their parental rights "will not result in severe or enduring psychological harm" to the child.

A bonding evaluation with J.P.'s foster parents led him to conclude the child is bonded to those parents and views them "as the psychological parents."

Dr. Brown conducted a bonding evaluation of both children with defendants on February 15, 2006. He concluded that, despite the children's "comfort and familiarity" with defendants, termination of parental rights would not result in severe and enduring psychological harm. He based this conclusion on his observation of the children's lack of response to the defendants' departures from the room and the fact that defendants were the ones to initiate contact, not the children.

Dr. Brown also conducted updated bonding evaluations with both children and their foster parents. He reiterated his prior findings on J.P.'s relationship to her foster parents. He also found that M.P. was well bonded to her foster parents and viewed them as her "psychological parents." Dr. Brown concluded that both children would experience great instability and confusion if removed from their foster parents.

Dr. Barry Katz testified as M.B.'s witness. He concluded J.P. had a "dual bond" with M.B. and with her foster parents, and this needed to be resolved quickly because it caused conflict for the child. Dr. Katz opined that M.P. considered her foster parents as her psychological parents, but that the child was still young enough to break that bond and re-bond with defendants.

The court appointed its own expert, Dr. Natalie Barone, who severely criticized Dr. Figurelli's testimony, particularly what she considered to be his very limited inquiry into E.P.'s parenting abilities. She questioned Dr. Figurelli's ultimate conclusion that J.P. would suffer greater trauma in separating from defendants than from her foster parents.

Based on this record, Judge Callahan concluded that DYFS had proven, by clear and convincing evidence, that all four statutory prongs had been met and termination of parental rights was, therefore, appropriate. As noted at the outset, we agree with the trial judge's reasoning and conclusions.

M.B.'s arguments are patently without merit. R. 2:11-3(e)(1)(E). She has been addicted to cocaine for several years and has failed to complete any of the DYFS-referred rehabilitation programs in order to attempt to regain custody of her children. While there was evidence she was enrolled in an inpatient program as of the time of trial, she still failed to establish any likelihood of the ability to parent J.P. and M.P. in the foreseeable future.

The trial judge properly concluded that adoption should not be delayed to afford M.B. a chance to accomplish that which she has failed to achieve to date. New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 601-602 (1986) ("[T]he price of focusing on the plight of the parents in these types of cases is that the child is kept in waiting for what the decision-makers view as the ideal or best placement.")

As for E.P., while his situation may appear to be somewhat more sympathetic than M.B's, the fact remains that he inexplicably delayed for over two years in finding separate housing, apart from M.B., as well as steady, gainful employment sufficient to support himself and the two children. By his own testimony, he had a rather antagonistic relationship with DYFS and felt "frustrated" by the schedule DYFS set for his screenings and services.

In addition to concerns about housing and employment, E.P. presented a problem by his demonstrated inability to protect the children from exposure to their mother. This clearly, and properly, concerned the trial judge in rendering his decision. E.P.'s own conduct, particularly his delay in taking meaningful steps to put himself in a viable position to assume custody of these children has, in turn, "contributed to the strong emotional bonds" between the girls and their foster parents, as the trial judge found and the record supports. New Jersey Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 291 (2007). As Justice Clifford once noted, in his inimitable style, "the bonding that takes place before a termination petition has been decided serves to decrease the potential for eventual reunification. Once the toothpaste begins its inexorable journey from the tube, the chances of its return diminish with each passing day." In re Guardianship of J.C., 129 N.J. 1, 29 (1992) (Clifford, J., concurring). Here, E.P.'s dilatory conduct directly contributed to that "inexorable journey."

Considering the record below, and the substantial deference due to the trial court's findings, we uphold the decision of the trial court.


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