February 22, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF J.P., A MINOR.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF J.P., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-45-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically January 28, 2008
Before Judges Graves and Sabatino.
This consolidated matter brought by the Division of Youth and Family Services ("DYFS") involves a mother's appeal (A-4577- 06T4) and a father's appeal (A-5143-06T4) of the termination of their respective parental rights to their biological son, Johnny,*fn1 following a guardianship trial in February 2007 before Judge John J. Callahan. We affirm the judgment as to both appellants.
The mother, C.P., who was age forty-six at the time of trial, has had over two decades of heroin abuse. At the time Johnny was born in June 2005, C.P. was living in a shelter and tested positive for heroin. She had no job or stable living situation. C.P. previously gave birth to three other children, one in 1987, a second in 1989, and a third in 1997. The first two children have been raised by C.P.'s sister in Pennsylvania. As the result of DYFS intervention, the court terminated C.P.'s rights to the third child, and he was thereafter adopted by another one of her sisters.*fn2
The father, J.S., was thirty-four years old at the time of trial. He has a criminal record of offenses involving controlled dangerous substances ("CDS"), albeit their sale rather than their consumption. The offenses also involved heroin. At the time Johnny was born, J.S. was living with his own paternal grandmother. He was then unemployed, although he subsequently became employed as a sanitation worker. J.S. has two older children who live with their mother.
When Johnny was born, DYFS placed him immediately in foster care, as neither of his biological parents was then able to care for him. Johnny's foster parents have continuously housed Johnny since his birth and now wish to adopt him. Although Johnny was born prematurely and his mother tested positive for heroin both before and after his birth, he has not been diagnosed with a drug dependency. Developmentally, Johnny is somewhat behind schedule, particularly as to his speech, although he apparently has not been formally classified as a special needs child.
The few relatives identified by C.P. and by J.S. as potential alternative caregivers for Johnny either declined that role, or were ruled out by DYFS as unsuitable. In particular, J.S.'s grandmother, with whom J.S. resided, told DYFS that she did not want the child living with her. J.S. eventually proposed his aunt, J.K., as a caretaker. However, J.K. did not contact the DYFS caseworker and express her interest until August 2006, a year after Johnny had already been placed with his foster family. At that time, J.K. was living in a one- bedroom apartment with her adult son and sleeping on the sofa. Eventually J.K. obtained a larger apartment, but when DYFS inspected it, the premises had no furniture or telephone.
The record reflects that prior to trial, both parents visited Johnny with some frequency, usually on a biweekly basis. C.P. had seen him twenty-nine times up to the time of trial, and J.S. had made twenty-one of twenty-nine scheduled visits. Although a domestic violence restraining order barred their contact with one another, J.S. and C.P. nonetheless were often both present when visiting with Johnny.
The sole psychological expert who testified at trial, Dr. Barry Katz, opined that neither biological parent has bonded substantially with Johnny. When Dr. Katz observed Johnny with his mother, the child seemed detached and did not seem to care when she left the room. The doctor observed several times that Johnny was not maintaining eye contact with his mother, and that he "continually looked out the window."
Likewise, when Dr. Katz observed J.S. with Johnny, the doctor noted that the child seemed more interested in playing than interacting with his father, and that he avoided affection. Dr. Katz summarized his observations in that regard as follows:
Q: So in fact with [J.S.] did you identify any type of bond between [Johnny] and [J.S.]?
A: Well, there was certainly -- [J.S.] had a bond to [Johnny] but [Johnny] did not show any type of emotional bond or need for nurturance from [J.S.]
Q: And if there had been a relationship or a bond between [Johnny] and [J.S.] what would you have expected to see as opposed to what you did see?
A: Well, I expected -- well, the first thing is, for example, when [J.S.] was asking [Johnny] for a kiss and trying to kiss him that [Johnny] would have reciprocated, at least let him kiss him, not -- not pull away, that he would have sat facing him, that there would have been eye contact, there would have been increased verbal, even if it was, you know, words I couldn't understand.
He would have been verbal trying to describe what was going on. He would have been focused on [J.S.] for longer periods of time during the play. During the separation between [J.S.] and [Johnny], [Johnny] would have shown some type of reaction to that circumstance.
And even when I opened the door for him [Johnny] still showed no need to go and pursue [J.S.] And most striking was even at the end of the evaluation [Johnny] -- you know, when I let [Johnny] out into the --into the waiting room where [J.S.] and the DYFS worker were, [Johnny], you know, grabbed my hand.
By contrast, Dr. Katz opined that Johnny had successfully bonded with his foster parents and had exhibited positive reactions to their presence. Dr. Katz compared those manifestations of bonding with the absence of such manifestations as to C.P.:
Q: Dr. Katz, can you describe the differences between those two behaviors between the two evaluations, the one with [Johnny's] mother and the one with the foster parents?
A: Yes. First of all, the overall mood, [Johnny] was not emotional, was not reciprocating any spontaneity of emotion with the biological mother. With the foster parents, however, [Johnny] was throughout the whole evaluation, you know, smiling, verbal, even though I couldn't understand a lot of what he was saying, he was talking like a mile a minute.
He was showing the toys. He was laughing. He was, you know, initiating contact and touch with the foster parents.
In response to further questioning, Dr. Katz elaborated on this point:
Q: Okay. And at the time during your evaluation with the foster parents when you left the room what kind of reaction did [Johnny] have or not have?
A: He was -- he was crying. He immediately -- as soon as they left he showed a dramatic change of behavior. He was not responsive to me in the way that he was to them, meaning that he wasn't emotional, he wasn't spontaneous, he was very guarded, he was crying.
He immediately when I opened the door and gave him, you know, the chance to leave the room he went out and went directly to the foster parents.
Q: So unlike both your evaluations with the biological parents it was only the evaluation with the foster parents where [Johnny] had a reaction to the adult figure leaving the room. Is that correct?
Dr. Katz further opined that C.P.'s long history of drug abuse posed substantial risks to her son. As of the time of trial, C.P. had been drug-free for about a year. However, Dr. Katz felt that, given her many prior relapses, C.P. needed to be drug-free for at least two years before she could be entrusted to care for Johnny. The doctor also noted that C.P. showed difficulty in handling stress and would be overwhelmed by her son's needs. He summarized his expert findings on these points as follows:
Q: Based on [C.P.'s] history of drug usage how long of a period of time would you like to see of stability and sobriety before [C.P.] could be considered able to parent a young child?
A: Well, generally speaking, there's been a pattern of relapses that [C.P.] had described to me in the past. I believe her longest period of sobriety was ten months. Generally speaking, with that type of pattern and long-term use of a drug like heroin the relapse rate is extremely high.
So we would want to see quite an extended period, I would probably look to see two years or more of established stability, not only in terms of sobriety, but in terms of being able to meet the stressors or requirements of one's life circumstance.
Q: Would it be accurate then to say that [C.P.] is still in the early stages of recovery during this period of time?
Similarly, Dr. Katz identified aberrational personality traits and other problems that impeded J.S.'s capacity to be a suitable caretaker for his son. The doctor particularly found J.S. to be rigid, compulsive, and prone to anger. On this issue, Dr. Katz offered the following testimony:
Q: What, if any, significance does [J.S.'s] personality have on raising a child or risk of raising a child with [Johnny's] age and developmental problems?
A: Well, generally a person with a compulsive personality disorder is rigid in their view of the world. They have their own internalized view of rules and how things should proceed and do not respond well to situations that violate those internal rules.
Q: And what, if any, impact does that type of person -- what I'm trying to elicit is does that have any impact on -- on raising a child at [Johnny's] age and with his developmental problems?
A: Certainly. And in this situation it becomes more profound, meaning that you have a child who's got developmental delays, who's been bonded to other parents, et cetera, and is not going to respond to [J.S.] as maybe [J.S.] would expect or want the child to respond to.
That would create a great deal of pressure upon such an individual to deal with [h]ow this child is not responding the way that you feel that they should. So it would put a lot of pressure on that person to try to adapt to that situation which would not be in their strength.
Dr. Katz offered the following predictions:
Q: And based on your evaluation of [J.S.] could you make any predictions with regard to [J.S.'s] reactions to that kind of pressure?
A: Well, in terms of the -- my observation of the history too, all the data completely, taking the data completely I mean there --it brings up greater concerns because there's a pattern of anger that's, you know, been documented between the history and with [J.S.'s] own disclosure.
And with that certainly it would appear that when there were violations of these rigid rules and norms that [J.S.] can respond with anger, a great deal of anger. And that would create a very bad situation for a child who's going to violate those norms repeatedly, you know, through unwitting circumstance.
Q: And would you say that that would create a risk of harm to the child?
A: I would say it would create a poor life circumstance for the child to live in. It wouldn't be in the best interest of the child and could certainly, if not direct harm, certainly would produce a situation that would be a negative impact on their ongoing development.
Dr. Katz also commented on J.S.'s refusal to appreciate and acknowledge his own failures in assuming parental responsibility and in not cooperating fully with DYFS or carrying out its requests:
Q: Was there any significance at all to the fact that [J.S.] steadfastly found fault with the caseworker as opposed to taking responsibility for his missing appointments, for example?
A: Certainly I think that becomes a relevant issue. [J.S.] was very adamant about that the problems in the case were attributed to the caseworker. In -- the caseworker who had done him some injustice in there.
What was completely ignored and not processed by [J.S.] was the fact that his non-compliance in the case had contributed to circumstances there. So again it goes back to that compulsive personality pattern.
Rather than look at the totality of the one's own behavior in the circumstance the focus is completely on one issue that they identify as being the problem and that becomes global and generalized to everything.
The DYFS caseworker who testified, Diane McManus, echoed many of Dr. Katz's observations. McManus recalled observing C.P. exhibiting odd behavior during supervised visits with Johnny. At times, C.P.'s speech was slow and she appeared to be under the influence of drugs. On one occasion, C.P. took Johnny's soiled diaper, wrapped it up, and told McManus she was planning to take the waste with her. With respect to J.S., McManus noted his history of drug involvement*fn3 and lack of stable housing. She stated that J.S. had failed to attend five substance abuse evaluations that DYFS had scheduled for him, and also did not cooperate in referrals to Catholic Charities. McManus also recalled "a very uncomfortable interaction" she had with J.S. during a visit, in which he displayed an "extremely exaggerated" reaction to Johnny's crying during a diaper change and insisted that Johnny be taken immediately to a hospital. On the other hand, McManus noted that Johnny has "a tight family structure" with his foster parents, and that "[t]here's a lot of love and affection in that household."
C.P. and J.S. each testified in their own behalf. They called no experts, nor any additional fact witnesses. C.P. contended that she was in a job training program, hoped to start employment and obtain an apartment soon, and wanted to raise her son "as a family" with his father. J.S. testified that he was employed, that he was paying child support, and that he was fit to care for Johnny. He denied having an anger problem or any present drug abuse issues. J.S. claimed that he had been treated unfairly by the DYFS caseworkers.
After hearing these proofs, Judge Callahan determined that all four of the statutory factors for termination had been established. As part of his analysis, the judge found Dr. Katz to be credible, describing him as "a forthright and dispassionate professional," one who is generally "respected" by DYFS and its litigation adversaries. The judge concluded that both parents continued to have impediments to their care-taking abilities, while Johnny deserved permanency in the care of his foster parents. The judge remarked that, "in essence[,] the child can't be held prisoner to the rights of others[,] even if they are his parents." Consequently, the judge granted DYFS's application, and final judgment was entered on February 28, 2007.
C.P. and J.S. have each filed appeals. In her own appeal, C.P. argues that the trial court erred because DYFS "failed to prove, by the required clear and convincing evidence, that termination of [her] parental rights was appropriate." J.S., in turn, makes a similar general contention of error in the judge's ultimate decision. More specifically, J.S. maintains that (1) he did not endanger Johnny's safety, health or development; (2) DYFS "intentionally failed to identify [his] relationship with C.P. as a harm"; (3) DYFS did not provide him with reasonable services and "refused to accommodate his work schedule in setting up supervised visitation"; and (4) DYFS did not adequately consider placing Johnny with his great aunt. J.S. further argues that DYFS "prevented" bonding with his son by removing him as an infant and "refus[ing] to facilitate visitation." The appeals are opposed not only by DYFS, but also by the Law Guardian appointed for Johnny.
It is well established that when seeking the termination of a parent's rights under N.J.S.A. 30:4C-15.1a, DYFS has the burden of establishing, by clear and convincing proof, the following standards:
(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) [DYFS] 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. See also N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]
We also recognize that the termination of a parent's right to raise his or her child is a matter of constitutional magnitude. See In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992).
As the Supreme Court has consistently reaffirmed, the "[r]review of a trial court's termination of parental rights is limited." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). "A reviewing court should uphold the factual findings undergirding the trial court's decision [in a DYFS termination case] if they are supported by 'adequate, substantial and credible evidence' on the record." Id. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Even where the focus of appeal is upon the trial judge's evaluation of the record and the implications to be drawn from it, reviewing courts still are obligated to "accord deference unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" Ibid. (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). Additionally, we are loathe to second-guess the factual findings of judges, particularly judges in the Family Part, given the Family Part's expertise in matters that involve domestic relations and the welfare of children. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
Mindful of our limited scope of review, we are satisfied that the trial court's determination as to both C.P. and J.S. is sound. The court's rulings are supported by substantial credible evidence, particularly the detailed testimony of Dr. Katz, which is unrebutted by any other expert proof. All of the pertinent statutory prongs for termination are amply fulfilled. We therefore affirm the judgments, substantially for the reasons noted in Judge Callahan's bench decision.
We briefly comment on one aspect of the arguments raised by J.S., in particular, his claim that he was unfairly penalized for continuing to maintain a relationship with Johnny's mother, C.P., during the pendency of the litigation. J.S. points to a note in the case files reflecting that he was told by a DYFS worker, shortly after Johnny's birth, that his chances of gaining custody of his son would not be undercut by "mov[ing] in with his girlfriend to form a family." According to that note, the "[w]orker advised that the parents can do as they wish so long as they can provide for the child and [C.P.] enrolls in a substance abuse treatment program." J.S. argues that he was nevertheless ruled out as a caretaker by DYFS and the judge because of C.P.'s ongoing personal problems. He cites to G.L., supra, 191 N.J. at 607-09, in which the Supreme Court ruled that a mother should not have had her parental rights individually terminated because of her inability to eliminate risks to her child posed by the child's father. In essence, J.S. claims he was defeated in this case through a form of guilt by association.
We are unpersuaded by these claims. For one thing, the trial judge expressly noted that he had "analyze[d] each parent separately" under the statutory factors. To be sure, the judge also included in his oral ruling various comments about the joint failures of C.P. and J.S. as a couple. Even so, we are satisfied that there is ample proof in the record to justify the termination of J.S.'s parental rights, independent of the personal shortfalls of C.P.
Among other things, we note J.S.'s repeated failures to attend the substance abuse assessments that DYFS had scheduled for him, his inconsistent behavior with Johnny during supervised visits and his frequent tardiness, his numerous missed appointments for psychological evaluations, and his hostile outbursts with DYFS staff. We are also mindful that J.S. has never demonstrated the ability to care for his son on his own, and that the substitute caretakers he proposed were either unsuitable, unwilling, or not timely identified. These failures, coupled with Dr. Katz's convincing expert testimony, supply more than sufficient reason to reject J.S.'s claims.