October 22, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF Z.T., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-41-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2008
Before Judges Stern, Payne and Lyons.
This is an appeal by T.T., the biological mother of Z.T., now thirteen years old, from an August 27, 2007, final judgment terminating her parental rights to her son. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
T.T. is the biological mother of Z.T. and J.T. is the biological father.*fn1 Z.T. was born on September 29, 1995. T.T. has one other child from a prior relationship, E.H., born in 1991. When E.H. was one-year old, T.T. surrendered her parental rights to E.H.'s paternal grandmother.
The Division of Youth and Family Services (DYFS) became involved with T.T. in June 2000. DYFS had received a referral, claiming that T.T. was living with her then paramour, C.M., both were alcoholics and were running a pornographic mail order business out of the home. There was also an allegation that Z.T. was seen playing with knives and was unattended outside on a deck that had no railing. DYFS found the allegations of abuse and neglect unsubstantiated and closed the case.
Six months later, DYFS again received a report alleging abuse and neglect of Z.T., claiming Z.T. was left home alone, without food, while T.T. worked, and was being exposed to pornographic materials. In April 2001, after investigating the matter, DYFS again found the allegations of abuse and neglect unsubstantiated and closed the case.
In January 2002, the local police were dispatched to T.T.'s residence, which she then shared with a new paramour, R.W., in response to a violent domestic dispute between T.T. and R.W during which Z.T. was present. In March 2002, Z.T.'s school filed a DYFS report, alleging that Z.T. was coming to school dirty, was not toilet trained, and had dried feces in his underwear that morning and three times the previous week and several times a week in general. DYFS investigated the matter again and found the allegations of Z.T. being dirty unconfirmed and recognized Z.T.'s problem regarding feces as medical, not parental.
In June 2002, the local police were again dispatched to T.T.'s home regarding a domestic violence dispute. The police also responded in November 2002 to another domestic violence dispute between T.T. and R.W., which Z.T. witnessed.
In November 2002, DYFS visited Z.T. at his school. He told the DYFS caseworker that R.W. had thrown a lit cigarette at T.T. while Z.T. sat next to her and that he was scared. He also stated that R.W. had been mean to him and his mother. DYFS then spoke to T.T. who acknowledged that R.W. had been abusive toward her. She acknowledged that she had lost teeth as a result of prior physical disputes with C.M. and that R.W. had burned her face with a cigarette. T.T. denied, however, that Z.T. had ever been abused by R.W.
DYFS had T.T. sign a case plan to address her and her son's problems. In June 2003, Z.T. continued to soil his clothes at school. He was diagnosed with encopresis.*fn2 Police were again called to a domestic violence dispute at T.T.'s home on February 3, 2004. Z.T., however, was not present during that incident.
In April 2004, Z.T.'s school contacted DYFS because Z.T. continued to soil his pants. This was occurring on a daily basis and Z.T., when confronted by the school, expressed concern that he could not go home because he would be hit. DYFS investigated the matter and discovered that after Z.T. came home, he was spanked by R.W. and had red marks on his buttocks. DYFS discovered that R.W. had a significant temper and would get very angry if disturbed. DYFS offered to move T.T. to a battered women's shelter because of the volatile relationship between her and R.W., but she refused.
On July 23, 2004, DYFS received another referral from the local police in response to another domestic violence incident between T.T. and R.W. This incident occurred in Z.T.'s presence. Following this occurrence, DYFS removed Z.T., then eight years old, and placed him in protective custody. At the time of his removal, Z.T. was disheveled, dirty, and smelled of cigarette smoke and urine. He stated he was hit on the torso when R.W. threw a computer keyboard at him during the domestic dispute.
On July 26, 2004, pursuant to a court order, Z.T. was placed in the legal custody of DYFS. On July 28, 2004, Z.T. was placed in physical custody of his current foster parents where he has remained since the initial placement.
The trial court ordered T.T. to attend domestic violence counseling and granted her supervised visitation. T.T. was provided numerous and various services following the removal of Z.T. In September 2004, she underwent a psychological evaluation. That evaluation revealed a history of sexual abuse as an adolescent and physical abuse at the hands of her paramours. She was diagnosed with borderline personality disorder and adjustment disorder with mixed disturbance of emotion and conduct.
In 2004, the court ordered T.T. to obtain safe and appropriate housing and for DYFS to investigate the adequacy of the parenting classes that T.T. was attending. In November 2004, Z.T. completed a psychological evaluation. Based on that evaluation, it was clear that Z.T. desired to be reunited with his mother, but that he was frightened of R.W. and had witnessed R.W.'s physical abuse of his mother.
In January 2005, the court ordered T.T. to receive various services and attend counseling. She was granted weekly supervised visits. The court also ordered DYFS to help T.T. secure safe and appropriate housing by paying a security deposit and the first month's rent for an apartment in Paterson. This was done.
In March 2005, Z.T. was again evaluated. The evaluation indicated that the trauma of Z.T.'s home environment caused him to experience nightmares, stomachaches, headaches, and encopresis. Z.T. was diagnosed with post traumatic stress disorder and attention deficit hyperactivity disorder (ADHD).
In May 2005, the court ordered unsupervised weekend visits with T.T. Further, T.T. was accepted into tractor trailer driving school for which DYFS paid the $4,000 tuition. However, T.T. later indicated at trial that, while she attended the course, she had not taken the one-day test for a commercial driver's license, nor had she renewed her learner's permit. Throughout this period of time, T.T.'s housing was unstable, as was her employment.
In July 2005, the court held a permanency hearing and concluded that reunification was the goal. In August 2005, a psychological evaluation of T.T. found that she did not take any responsibility for failing to protect her son. The evaluation also revealed that she did not understand the emotional impact of domestic abuse.
In August 2005, Z.T. was also evaluated. The evaluation indicated that Z.T. had been growing up in an unstable environment with an abnormal life style and was the witness and victim of violence. Post traumatic stress disorder was also diagnosed.
In November 2005, the court denied DYFS's request to change Z.T.'s permanency goal to adoption so as to give T.T. additional time to obtain a stable home and job. However, at this point, T.T. had failed to obtain either.
In March 2006, a third permanency hearing was held, at which time the court recognized that Z.T. had been in placement for nineteen months and that T.T. had failed to remediate the issues leading to placement. The court then approved DYFS's permanency plan of adoption. A complaint for guardianship was filed on May 24, 2006.
In July 2006, T.T. was again evaluated by a psychologist. The psychologist found that T.T. had not gained the requisite parenting skills that would protect Z.T. from harm. The doctor found that, while Z.T. was attached and loyal to T.T., he was also comfortable not interacting with or ignoring T.T. In contrast, the doctor found Z.T. to be relaxed and at ease with his foster parents, displaying affection and interaction throughout the entire evaluation. The doctor testified at trial that Z.T. is a "parentified" child because he has adopted the role of the parent rather than the child. The doctor concluded that Z.T. should be legally approved for adoption in order to experience safety, permanency, stability and guidance by his foster parents.
In May 2007, another psychologist reported on behalf of the Law Guardian on the parenting and bonding assessments of Z.T. and T.T., as well as Z.T.'s relationship with his foster parents. This doctor noted that Z.T.'s problems improved significantly after removal from T.T. He no longer needed medication and he had not been encopretic for more than a year. He had no asthma episodes, and had been mainstreamed in many academic subjects. This doctor noted that while Z.T. and T.T's attachment was still strong, it was not as intense as it was in October 2006. The doctor also noted that Z.T. displayed easy affection for his foster parents. The doctor concluded that returning custody of Z.T. to T.T. would be unsafe and that adoption by Z.T.'s foster parents was in Z.T.'s best interests.
In November 2006 and April 2007, another psychologist examined T.T. on T.T.'s behalf. That doctor found a bond between both Z.T. and T.T. and the foster parents. That doctor concluded that there was nothing from a psychological point of view that would preclude T.T. from parenting, provided there was proof of her maintaining an adequate living and employment situation, financial status and abstinence from drugs.
The trial of this matter commenced in June 2007. During the trial, it became clear that T.T. had still not secured stable housing or employment. The trial court found T.T.'s testimony to be incredible. Z.T.'s foster family testified that they would be happy to adopt Z.T., who at that point had spent almost three years with them. The foster family also testified how Z.T. had made significant progress socially, medically, and scholastically. During the trial, Judge Gary S. Rothstadt interviewed Z.T. in-camera. The judge found Z.T.'s testimony to be the product of numerous conversations with his mother as to what he should tell the court when asked about going home. The judge found Z.T.'s testimony incredible because, while Z.T. would praise his mother, he could not remember specific details, positive or negative, about his former life with T.T.
On August 27, 2007, Judge Rothstadt delivered a written opinion terminating the parental rights of J.T. by default, and T.T. This appeal ensued.
On appeal, T.T. presents the following arguments for our consideration:
THE DECISION TO TERMINATE T.T.'S PARENTAL RIGHTS WAS AGAINST THE WEIGHT OF SUBMITTED EVIDENCE AND TESTIMONY.
PRONGS 1 & 2: THE DIVISION HAS NOT SHOWN BY CLEAR AND CONVINCING EVIDENCE THAT T.T.'S RELATIONSHIP WITH Z.T. WILL CAUSE ENDURING HARM.
PRONG 3: DYFS DID NOT PROVIDE "REASONABLE EFFORTS" TO REUNIFY T.T. WITH HER SON.
PRONG 4: TERMINATION OF T.T.'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD TO Z.T.
THE CHILD'S WISHES MUST BE CONSIDERED AT THE ADOPTION HEARING UNDER N.J.S.A. 9:3-49.
On August 27, 2007, the trial court rendered a written decision in which the judge determined credibility of the witnesses and analyzed each of the four factors articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), codified in N.J.S.A. 30:4C-15.1.
We have carefully considered defendant T.T.'s arguments in light of the extensive record and the applicable law. We are satisfied that defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Judge Rothstadt rendered an extremely detailed, thorough, and thoughtful decision and we affirm substantially for the reasons set forth therein. Nevertheless, we have the following comments.
We are satisfied from a thorough review of the record that there was sufficient credible evidence to support the court's findings with respect to the first three prongs of N.J.S.A. 30:4C-15.1.
We agree with Judge Rothstadt's determination that prong four, N.J.S.A. 30:4C-15.1(a)(4), was satisfied. In concluding that in the interests of Z.T.'s well being and permanency, termination of parental rights will not do more harm than good, Judge Rothstadt accepted the findings of qualified psychologists as to the bonding evaluations, which recommended against reunifying Z.T. with T.T. Judge Rothstadt found that "DYFS successfully proved, to almost a certainty, that a termination will not cause more harm than good even considering [Z.T.'s] love for his mother and the sadness he will experience."
"Inherent in the fourth factor is that a child has a 'paramount need for a permanent and defined parent-child relationship,' as well as a deep need for a nurturing adult, commonly termed the 'psychological parent.'" N.J. Div. of Youth and Family Servs. v. C.S. 367 N.J. Super. 76, 119 (App. Div. 2004), certif. denied, 180 N.J. 456 (2004) (quoting In re Guardianship of J.C., 129 N.J. 1, 26 (1992)). In making his decision, Judge Rothstadt found not only a lack of nurturing by T.T., but rather the opposite. Judge Rothstadt found that T.T. never protected or cared for Z.T. in the way he needed in order to develop. Z.T., however, had always been concerned for his mother's welfare and tried to make her happy, even by living in terror rather than disclosing the truth to those who could have helped him.
The trial court also determined that after caring for Z.T. over the years, the foster family has not only helped Z.T. resolve many of his issues, but they are "well attuned to his needs in the event he experiences any relapse or other symptoms arising from his sense of loss, if any."
Expert testimony regarding bonding assessments between Z.T. and T.T., and Z.T. and the foster family, was presented at trial. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (stating that DYFS should offer expert testimony on parental bonding to satisfy the fourth prong). Moreover, the expert psychologists' conclusions were not without evidentiary basis. In re Guardianship of K.H.O., 161 N.J. 337, 356 (1999) (looking to see if the underlying facts lend support to the expert's opinion); see also N.J. Div. of Youth & Family Servs. v. F.M. 375 N.J. Super. 235, 262-63 (App. Div. 2000). Both Drs. Laky and Nadelman, the DYFS and Law Guardian experts, testified that T.T. cannot parent Z.T. and adoption by the foster family would be in Z.T.'s best interests. Both Drs. Laky and Nadelman found T.T. was clinically depressed and suffered from schizoid personality disorder. DYFS's expert, Dr. Laky, found that Z.T. was "not free" in his mother's presence, while he was "freer" and more animated when he was with his foster family. Both Drs. Laky and Nadelman also found that Z.T. and the foster parents were attached to one another and the foster parents were able to validate Z.T.'s love for his mother. Finally, both Drs. Laky and Nadelman agreed that while Z.T. will grieve for his mother, his foster parents are capable of assisting him through the process.
The trial court found that Z.T. is now thriving with the foster family. Evidence in the record supports this finding. Since Z.T.'s removal from T.T. and his placement with the foster family, Z.T.'s encopresis, ADHD, asthma, and speech impediment have all been resolved.
In making his decision, Judge Rothstadt also noted the comfort Z.T. might receive from "knowing that he has achieved permanency in the arms of a family that cares for him and that will be able to keep him safe from any more harm or terror." See J.C., supra, 129 N.J. at 26 (noting a child's "paramount need [. . .] for [a] permanent and defined parent-child relationship"); see also M.M., supra, 189 N.J. at 281; K.H.O., supra, 161 N.J. at 357-59 (noting that a trial court should also take into consideration a child's need for permanency). "[A] 'child deeply needs association with a nurturing adult' and that 'permanence in itself is an important part of that nurture.'"
N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008) (quoting A.W., supra, 103 N.J. at 610).
Z.T. has now been in foster care for four years. He has desired reunification with his mother for that entire period. T.T. argues that if Z.T. is not returned to her, he will wait until he turns eighteen to be with her. T.T. also argues that based on journal articles advocating the benefits of maintaining contact with natural parents, there is a strong argument that Z.T. will be harmed from such a "black out" period of affection.
However, the trial court took this into consideration, stating that "there is no doubt that [Z.T.] will experience sadness;" however, he may also feel relief and thus "finally enjoy a peaceful childhood, and, as [Z.T.] noted, seek out his mother when he becomes an adult." Dr. Laky concluded, as a result of her assessment of Z.T. and T.T., that "[Z.T.] should be legally freed for adoption in order to experience safety, permanence, stability and guidance by his foster parents." Additionally, Dr. Nadelman testified to the specific negative psychological impact Z.T. suffers based on lack of permanency, stating that:
[i]t has the negative of indicating I'm going to go as soon as mommy wins, this week, next week, next month, next year. There's no psychological permanence. . . . [Z.T.] needs to know this is where I'm going to live, this is where I'm going to grow, this is where I'm going to be safe, and I'll see my mom when I grow up.
Judge Rothstadt's findings concerning the fourth prong were well supported by the record.
Finally, in analyzing the fourth prong, a closer look at the Supreme Court's recent decision in E.P. is warranted because E.P. focuses on the fourth prong and both DYFS and T.T. rely on it to support their positions. E.P., supra, 196 N.J. 88. In E.P., our affirmance of a Family Court's termination of parental rights was overturned. Id. at 92.
E.P. dealt with the termination of a mother's, Emilia, parental rights of an almost thirteen year old girl, Andrea, based on Emilia's unfitness due to drug addiction, an unstable lifestyle, and psychological problems. Ibid. Andrea was emotionally unstable, had lived in numerous foster homes over the years, suffered abuse in some of these homes, and had not physically lived with her mother in nine years. Id. at 95-96. However, she still maintained a loving relationship and visitation with her mother. Id. at 93. Andrea had no prospects for adoption. Id. at 92.
At trial, Emilia's psychological expert testified that reunification was in the best interests of Andrea because of the strong parent-child bond and predicted Andrea would suffer serious behavioral issues if parental rights were terminated. Id. at 97. Andrea's Law Guardian opposed termination because previous attempts to sever Andrea's relationship with her mother resulted in Andrea attempting suicide multiple times. Id. at 99-100. DYFS's expert testified that Emilia could not adequately parent Andrea, and even though Emilia was the only person in Andrea's life with whom she had a consistent and positive emotional connection, Andrea still had the capacity to bond with another caretaker. Id. at 98.
The Supreme Court found that DYFS satisfied prongs one through three of the best interests test. Id. at 104. However, the Court found DYFS failed to prove by clear and convincing evidence that terminating parental rights would not do more harm than good given the particular circumstances of the case, namely "a parent-child relationship that continued to provide emotional sustenance to the child should not have been severed based on the unlikely promise of a permanent adoptive home." Id. at 114. The Court remanded the case to the Family Court for further proceedings. Ibid.
E.P. and the present case are comparable because both deal with children who are similar in age, deeply desire reunification with their mothers, have behavioral and/or medical issues, have had visitation with their biological mothers throughout their foster placement, and all experts agree that their mothers cannot parent the children without qualification.
E.P. and the present case differ, however, because in E.P., Andrea had no prospect for an adoptive home, had been in twelve different foster homes, and had a history of disrupting her foster placements. She also had a history of suicidal behavior when attempts were made to sever ties with her mother, and the Law Guardian opposed termination of parental rights. On the other hand, Z.T.'s foster family wants to adopt him and he has resided with this same family over the four years since he was removed from his mother. All experts (DYFS's, the Law Guardian's, and T.T.'s) agree that he has a secure attachment and bond with this foster family, and the Law Guardian supports termination of parental rights. Z.T., unlike Andrea, has an adoptive home with his foster parents, which will afford him permanency. Thus, we believe E.P. is distinguishable from the present case, given the Supreme Court's holding that a parent-child relationship that continues to provide the child with "emotional sustenance" should not be severed when the possibility of placing the child in a permanent adoptive home is nil. E.P., supra, 196 N.J. at 114.
While we are well aware that the Court has said that the wishes of a mature child should be considered prior to termination, we recognize that the Court also has gone on to say that it is the Family Court that must decide what is in the best interest of the child at a parental rights' termination hearing, with the child's wishes being but one factor.*fn3 The Court explicitly noted that a child's wishes may often not be in their own best interests. E.T., supra, 196 N.J. at 113.
In any termination of a parental rights case where the trial judge is faced with the sincere desire of an older child to return to his parent, it is a difficult decision which faces the trial judge. Judges must and do carefully examine and consider the child's wishes, as well as all of the other evidence presented to them. Confronted with this Solomonic decision, they often, as here, come to the conclusion that the child's wishes may not be in their own best interests. It is their responsibility, therefore, to proceed with the termination in such cases even though it is a disturbing and unnerving decision. In this case, Judge Rothstadt balanced all of the factors and, stating valid reasons, determined the best interests of Z.T. dictated termination of T.T.'s parental rights.
Accordingly, we affirm.