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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...