October 30, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
S.A. AND S.A., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF S.A., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-04-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 2, 2008
Before Judges Stern, Lyons and Waugh.
S.A. (Mother) and S.A. (Father) appeal from an order of the Family Part entered pursuant to N.J.S.A. 30:4C-15.1, which terminated their parental rights to their daughter, S.A., who, together with her two older brothers, was taken into protective custody by the Division of Youth and Family Services (DYFS) when she was two years and three months old.*fn1 This appeal requires us to determine whether the order can be justified on the record presented to the trial court.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Mother and Father have four children. The oldest child is J.A., born March 22, 1997, who is today eleven years and six months old. S.A., Jr. was born on April 29, 2001, and is presently seven years and five months old. S.A., the child at issue in this case, was born on January 8, 2003, and is now five years and nine months old. The last child in the family is M.A. born in January 2008, and is approximately ten months old.
The parents married in November 2000, when Mother became pregnant with their second child. Father is a thirty-six year old high school graduate. At the beginning of DYFS's involvement, he worked for the State as a bus inspector. Mother, who is thirty-three years old, was a homemaker at the time.
In the fall of 2002, prior to any DYFS involvement with the family, J.A. started kindergarten in Long Valley. The Child Study Team at the school evaluated him almost immediately due to his weak academics and behavioral issues, including difficulty following rules, disruptive attention-getting behavior, nervousness, hitting, and biting himself. In October, the family moved to Jefferson to a house Mother inherited from her grandmother, and J.A. was placed in the Chancellor Academy, a school for emotionally disturbed children.
DYFS's involvement with this family began in March 2003, when the school nurse noticed J.A. had lost thirteen and one-half pounds, that he was not clean, and that he did not wear socks or underwear. Mother explained that J.A. had no appetite since he started taking medicine for attention deficit hyperactivity disorder (ADHD), and that he refused to wear socks and underwear. J.A.'s pediatrician reported to DYFS that he had no concerns about J.A.'s care.
On April 14, 2003, DYFS received a referral from the police, who had been called by a woman who had gone to the Mother and Father's home to pick up her child, and found S.A., who was only a few months old, home alone in her crib. Mother explained to the investigating DYFS worker that she left S.A. alone for a half hour when she went to chase after J.A., who had run into the woods. While the worker was there, however, she noticed that the house was very dirty, with old food on the floor, and cleaning products left in the children's reach. The worker told the Mother to clean up the house and advised that it would be reinspected within one to two weeks. DYFS determined neglect was not substantiated, as leaving S.A. was an "isolated" incident, but it opened a file because the cleaning products constituted a safety hazard to the children.
On April 24, 2003, a DYFS worker made an unannounced visit to the home and observed that the hazardous cleaning products had been removed, but the house remained dirty and cluttered. The home smelled of urine and feces, and the worker observed feces on the floor of S.A.'s bedroom.
DYFS was next contacted in December 2003, when J.A. reported to a school employee that his father had thrown a book at him, which resulted in a bloody nose. Father denied it, and abuse and neglect were not substantiated.
On June 11, 2004, DYFS received another referral from J.A.'s school because seven-year-old J.A. reported he had been riding an all-terrain vehicle without a helmet and flipped it. Although he had a swollen eye and abrasions, his parents had not taken him for medical attention. The parents took J.A. to the doctor only after being urged by the school.
A few days later, on June 15, 2004, a caseworker visited the home. She observed that the front yard looked like a "garbage can." Inside the home, there was garbage on the floor and dirty dishes all around. The kitchen had human feces and urine on the floor. Mother stated that S.A., Jr. had a difficult time using the bathroom. The worker observed dog feces in another room, and smeared feces in S.A.'s crib. The beds in the boys' room had no bedding, and the room contained old and fresh dog feces. There were reddish-brown smears on the walls that Mother attributed to the boys' smearing food. The only food in the house was "Steak-Ums" and milk. S.A., Jr. and S.A. were "filthy," and S.A. had bug bites all over her body.
S.A. also had a bruise under her eye which Mother explained was the result of S.A., Jr.'s hitting her with a toy truck.
DYFS continued to monitor the condition of the home throughout the summer, but on August 4, 2004, when it did not improve, DYFS asked the parents to sign a fifteen-day consent order for voluntary placement. The parents became upset and did not want to consent, but eventually did, reasoning that "DYFS will do what they want anyway." After finding no suitable relatives to care for the children, DYFS placed the children in foster homes, with S.A. being separated from the boys.
Prior to being taken to their placements, the children underwent physicals. S.A. was found to have insect and flea bites. During his physical, seven-year-old J.A. screamed, punched, pinched, and bit the caseworker, and yelled, "fuck you, you fucking bitch, you god damn nigger, you cock sucker." He was placed in the Children's Crisis Intervention Service (CCIS) of St. Clare's Hospital for a psychiatric evaluation. Dr. Fausia Mahmood determined that J.A. had impulse control disorder and adjustment disorder, in addition to his history of ADHD.
On August 24, 2004, DYFS filed a child abuse/neglect action regarding all three children seeking protective services. That action was given docket number FN-27-05. An order to show cause was simultaneously filed.
On September 9, 2004, J.A. was admitted for a week to the CCIS after he pushed his foster mother, tried to rip off her blouse, and shouted, "Show me your tits, bitch." J.A. also pulled down his pants and shouted, "I'm going to smear poop all over you." J.A. told S.A., Jr. to hit their foster mother, and he did.
Nevertheless, when he returned to school (and while still in foster care), J.A.'s school reported "tremendous improvement" in his physical appearance, behavior, and academic performance. During the separation, DYFS supervised visits between the parents and their children.
Both Mother and Father underwent unremarkable psychological examinations in September 2004. Mother attended a psychiatric evaluation with Dr. Richard Di Turi on September 13, 2004. Dr. Di Turi found that Mother was suffering from major depressive disorder. He recommended that she use medication to combat her depression.
On September 30, 2004, the return date of the order to show cause, a fact finding order was entered after the parents agreed to submit to the jurisdiction of the court by stipulating that the conditions in their home had presented safety hazards placing their children at risk. The court ordered that, based on the compliance the parents had demonstrated, the children were to be returned to their physical custody. Pursuant to the court's directive, but over DYFS's objection, the children were returned to their parents in October 2004.
From October 2004 to April 2005, DYFS continued to be concerned about the cleanliness of the house and the children, and whether the children were being fed. Caseworkers reported that the boys choked, pushed, and punched each other. During this time, the family attended Family Preservation Services (FPS) for five weeks to obtain assistance with food, clothing, finances, and time management. They also attended therapy at a Family Enrichment Program (FEP), and Mother attended individual therapy. The parents missed several sessions, and never returned the FEP worker's calls. When they did come, the parents did not discipline their children. J.A. often came to the sessions dirty, smelling soiled, and without socks or underwear. FEP found that neither parent had insight into the reasons for DYFS's involvement. Nevertheless, both parents completed a parenting class. Additionally, although they were referred to the Office of Temporary Assistance for help with paying their mortgage, they did not follow through.
J.A.'s school advised DYFS that on December 7, 2004, Mother brought J.A. to school late, and when she brought him inside, she left the other two children in the car. Three-year-old S.A., Jr. got out of the car and stood in the cold and rain, without shoes or a coat, screaming and crying. He, as well as S.A., were filthy. J.A. smelled of urine. Neglect was substantiated for both S.A. Jr. and S.A.
In March 2005, J.A.'s school reported that he had missed twenty-nine days of school and had arrived late ten days. It appeared that J.A. was not being given his medication regularly, which caused him to have temper tantrums. J.A. told his counselor that there was often no food in the home and he came to school hungry because he had not been fed dinner.
On April 12, 2005, DYFS received a referral from J.A.'s school stating that he had several bruises on his arm and hip and said he did not know how he got them. When a caseworker went to the home that day, J.A. told her that he got his bruises jumping over a deck railing into stones in the driveway. S.A., Jr. was naked, and S.A. was wearing a shirt and no diaper.
S.A.'s shirt was "totally soiled with crusted food stains and dirt, her hair was matted, and her face was covered with dirt and what appeared to be dried food." The worker observed S.A. pick up trash from the floor and put it in her mouth. S.A., Jr. had bite marks that he said were inflicted by his brother. The boys ran around the living room hitting, kicking, and punching each other without redirection from Mother. When the worker asked J.A. to speak with her, he called her an "asswipe." He started hyperventilating, crying, and yelling, then ran and threw himself into the wall. He also stood against the wall and banged his head into it. Although Mother tried to stop this behavior, she was unsuccessful.
The house was in a "deplorable" condition, with garbage, animal and human feces, and urine spread throughout. The refrigerator held only a nearly empty milk container and no food. The surfaces were soiled with food and dirt. The beds had no sheets. The house was infested with flies and gnats. The worker told the parents that certain work needed to be done that night, and that someone would return "within a week" to verify that the home had been cleaned.
The next day, the worker had a meeting with the FEP staff, who felt that no progress had been made with the family. The worker also talked to personnel at J.A.'s school, who told him that J.A. was very upset that day because his mother told him that if he talked about home any more, he would not be allowed to go to school. The worker returned to the home that afternoon. No improvements had been made to the cleanliness of the home because, according to Mother, they had not had time. The hands and feet of the children were black with dirt, but Mother said that the children were bathed every night before bed. When Mother tried to hug S.A., S.A. Jr. punched her and hit S.A. in the face. Mother laughed and told S.A., Jr. that it was not nice to hit his sister. She then leaned forward and growled in S.A. Jr.'s face, and then laughed. S.A., Jr. walked barefoot through the soiled cat litter box in the kitchen. S.A. picked up a foil-wrapped pink pill from the floor. When neither parent noticed, the worker took the pill - a Tylenol chewable -away from her.
Neglect was substantiated. The worker provided the parents with a Notice of Emergency Removal and left with the children. On April 15, 2005, DYFS filed an amended complaint and an order to show cause. On the return date of the order to show cause, April 28, 2005, the court ordered that the care, custody, and supervision of the children continue with DYFS.
S.A., who was twenty-seven months old when removed from her parents, was placed into her current foster home in June 2005, where she has resided for the last three years and four months. S.A., Jr. was placed in a separate foster home, but due to behavioral problems, he was moved repeatedly.
During his pre-placement physical, it was determined that J.A. had multiple cavities and two teeth broken to the gum line. J.A. was placed in five different foster homes, but due to the foster parents' inability to control his behavior, J.A. was returned home on June 3, 2005. An aide was placed in the home for five hours a day, seven days a week.
In an attempt to stabilize the family, DYFS required them to attend intensive therapy with Family Preservation Services during the summer of 2005. They had forty-six hours of intervention over five weeks. They did not appear for two sessions. At the end of the intervention, their goals were partially achieved. Despite the intensive therapy, J.A.'s behavior deteriorated and on the recommendation of J.A.'s psychiatrist, the court ordered him to be put in the Holley Center, a residential home for emotionally disturbed children, where he has remained since September 2005, except for weekend and certain other visits home.
Prior to his removal, however, the entire family was given psychological examinations by Dr. Rachel Jewelwicz-Nelson. After administering various tests to Mother, Dr. Jewelwicz-Nelson found that the results indicated Mother had "the intellectual understanding and skill base to be an appropriate parent," but that the results were at odds with her history. The doctor found that Mother exhibited "little insight, no introspection and minimal remorse for her situation." She externalized blame, and accepted limited responsibility for her actions.
As with his wife, there was a discrepancy between Father's test scores, which were normal, and his history. Father externalized blame and did not accept responsibility for his actions or their outcomes. He did not understand his children's need for discipline and consistency. Father acquiesced to his dominant wife.
Dr. Jewelwicz-Nelson saw the entire family during a bonding session. J.A. was "extremely possessive" of his parents and jealous of his siblings, particularly S.A., Jr. When the parents said, "no" to J.A., he responded, "I'll bash your brains in." J.A. hit and bit his parents. Dr. Jewelwicz-Nelson observed that the parents responded "poorly" to J.A. S.A. appeared "relieved" to depart from the session. After evaluating the children and the family as a unit, Dr. Jewelwicz-Nelson determined that they were not ready to be reunified.
In November 2005, S.A. was diagnosed with "significantly delayed" language skills. She was given an Individualized Education Program.
In May 2006, DYFS filed a complaint for guardianship and to terminate the parental rights of Mother and Father to the three children.
Mother had begun individual therapy with FEP clinician Michelle SanGiovanni in April 2005. By May 2006, Ms. SanGiovanni believed that Mother was gaining insight into her problems and taking responsibility for her previous actions. Mother had gained "significant insight" into the neglect issues. She maintained appropriate cleanliness of her home and appropriate personal hygiene. Mother attended her medication monitoring appointments.
Father had attended individual therapy sessions from November 2004 through December 2005, and then resumed individual therapy in February 2006, with FEP clinician Carla Brinker. By May 2006, Ms. Brinker noted gains in his understanding of his wife's depression, the negative patterns of his family, and DYFS's concerns. He better understood J.A.'s problems and its impact on the family. Ms. Brinker believed that Father was benefiting from the therapy.
During this time, the parents continued to attend the Therapeutic Supervised Visitation Program (TSVP) and attend weekly couples' therapy. They also attended counseling sessions at the Holley Center every other week. At some point, J.A. began weekend visitation with his parents at their home.
In September 2006, the parents lost their house to foreclosure. Even though they had inherited it, they had taken a mortgage to pay off debts associated with the house and the estate, and to fix household items, as required by DYFS. They were unable to manage the mortgage payments after the adjustable rate mortgage reset and Father had quit his job in February 2006.
Regarding his job loss, Father explained that the check he sent to pay for his driver's license renewal had bounced, but he was not aware that his license had been suspended until he was pulled over and advised by the police. During the time his license was suspended, he had driven a State vehicle, and when his boss found out, he suspended Father without pay. Father needed a full-time income, so he quit. Father also explained that he had taken a lot of unpaid time off from his job to attend visitation and other DYFS-related appointments, and his boss was not happy. Father and Mother started a business cleaning up properties, but discontinued it when DYFS, as well as potential lenders, told them that they needed verifiable income, not the cash income they received from the business.
During this time, Mother went off her medication because Father had lost his health insurance when he quit his State job. Mother did not tell her counselor for six weeks, but when she did, FEP and DYFS advised her how to obtain financial assistance for her medication and she eventually resumed taking it.
At the time of trial in November 2006, Father worked as a mechanic for an individual who paid him twenty dollars per hour, but did not take taxes from his pay. He had no medical insurance. One month prior to the trial, Mother started working nineteen hours a week at a pet store, earning nine dollars an hour. When they lost their house, they moved into the Father's father's home, which was a three bedroom ranch on a large piece of property.
Psychologist Elizabeth Smith was retained by S.A.'s Law Guardian to conduct a bonding evaluation regarding S.A. and her parents and foster parents, which she performed in June and July 2006.
From Dr. Smith's interview with Father, she learned that he thought that DYFS had overblown the severity of the situation. He denied that his children or their clothes were unclean, and did not believe that his house was unhealthy. He denied that there were fleas or gnats in the home or that his children had any bites. He also denied that the children were malnourished. He claimed any minor problems in the house were due to his wife's depression and their difficulty training their pit bulls. Father believed that all of J.A.'s problems arose as a result of his being separated from his family. He noted that the doctors wanted them to medicate J.A. when he was two or three years old, but they refused. He denied that J.A. ever bit S.A., Jr.
According to Dr. Smith, Father minimized all of the family's problems.
Mother, however, admitted some problems. She admitted that the house was not clean and that the puppies had been a problem, but believed DYFS grossly exaggerated the situation. She was depressed and "couldn't get it together." She too believed that J.A.'s problems were the result of his removal by DYFS. She contended that when S.A. picked up the pill off the floor it was only Mylanta, and it was "no big deal." She also claimed that the children's immunizations were up-to-date, but later admitted they were not. Mother believed that she had benefited from therapy and medication and had the situation in hand. Dr. Smith found the degree of Mother's denial "really stunning."
Dr. Smith also held a session with the siblings. S.A. and S.A., Jr. arrived first and played appropriately. J.A. arrived and for ten minutes, everything was fine. J.A. then went out of control, screamed, and threw things. He wrapped a tie around a doll's neck and said, "I'm hanging you bitch." He also yelled, "You people are trying to break up my family and I'm not going to let that happen." S.A., Jr. became agitated, but S.A. went "blank." J.A. then took a pill from his pocket and put it in S.A., Jr.'s mouth. J.A. and S.A., Jr. started wrestling and punching each other. When Mother and Father came, he calmed down.
Dr. Smith described the incident as the "most dramatic, intense, out-of-control behavior that I've ever experienced in an evaluation of this kind." She believed that J.A. would be an "incredibly challenging" child to any parent. She noted that J.A. was the only child at home in the summer of 2005, but he still had to be institutionalized. If S.A. were returned home with her brothers, she would be at risk of physical harm. Her behavior during J.A.'s outburst was the beginning of a dissociative process where she would "blank out" when her brothers were around.
Dr. Smith also interviewed the foster parents, S.K. and P.K., and found them to be "appropriate, warm" people who provided S.A. with a stimulating environment. When S.A. was first placed with them, she was malnourished, her ears were full of wax, and she would sit and rock. The foster parents obtained early intervention services in speech and physical therapy for S.A., and also took her to ballet lessons. Dr. Smith found that S.A. was in a stable environment with people who could meet her needs.
Dr. Smith opined that S.A.'s best interests were to stay with her foster parents and be adopted by them. Dr. Smith found that both biological parents were naïve and superficial in thinking that everything would be acceptable. Dr. Smith believed that their understanding and insight were so superficial that S.A. would be at risk. According to Dr. Smith, the circumstances that led to S.A.'s removal had not been addressed and the problems would recur; the parents could not keep a healthful, stable environment and could not manage J.A. and S.A., Jr. Dr. Smith opined that although S.A. had an attachment to her parents, they would fade in her memory and losing them would not cause a great deal of distress for her.
Moreover, S.A. would be at risk of emotional harm if she were removed from her foster parents. She had a strong attachment to her foster parents and removal would cause her trauma in losing them and her stable home. Were she to be reunited with her parents, she would suffer regression in her development and behavioral problems. S.A. had already been removed from her parents' home twice and another removal would be "absolutely disastrous." Dr. Smith acknowledged that losing contact with her brothers would be "sad," but believed that factor was not enough to outweigh the benefit of living in a stable environment with people who could meet her needs.
Dr. Frank Dyer, an expert in clinical and forensic psychology, conducted an evaluation of the family for DYFS in October 2006. He interviewed the parents and administered psychological tests to them. Father told Dr. Dyer much the same as he told Dr. Smith: that DYFS overreacted and exaggerated the family's problems. He recalled a DYFS worker telling him that DYFS was allowed to lie in order to reach their goals. Father believed that the family's circumstances had been temporary and not harmful to the children. His wife was a good mother who had become incapacitated by her depression. He believed that they were effective in controlling J.A.'s behavior and noted the incident at Dr. Smith's office, when the only thing that calmed down J.A. was their arrival. They had no plan for J.A.'s special needs. He also blamed DYFS for the deterioration of the family's finances. The way he saw it, he had to quit his State job when the visitation schedule caused him to miss too much time from work. He then started a successful yard cleaning business, but had to give it up when DYFS told him that he did not have verifiable income. He related that when he quit his State job, he lost his medical benefits, so he could not purchase the medication his wife needed to control her depression.
After administering psychological tests, Dr. Dyer determined that Father had no severe psychological problems, but he did have an adjustment disorder. He also found Father to be passive, dependent, and accommodating, which made him unwilling to confront his wife about the problems stemming from her depression. Further, he was not able to impose structure on his children.
Mother's narrative to Dr. Dyer was also similar to what she had told Dr. Smith. She had suffered from depression since she was a teenager, but it became severe after her daughter was born. When she takes her medication, her condition improves. She denied that J.A. had any serious behavioral problems, and she denied that S.A. had a language disorder. She had no plans to address their special needs. After administering psychological tests, Dr. Dyer concluded that Mother suffered from major depressive disorder to the point where she could be incapacitated, but she was in remission at the time he saw her.
Dr. Dyer attempted to evaluate J.A. and S.A., Jr. However, when J.A. came to the office, he pressed himself against a plate glass door. When Dr. Dyer told him that he would hurt himself, J.A. told him to "back off," and then threatened to kick the glass. S.A. Jr. then arrived and J.A. would not go into Dr. Dyer's office without him, so Dr. Dyer acquiesced. J.A. started to work on the task Dr. Dyer gave him, but then said he was not staying, and went into the waiting room. S.A., Jr. followed. The boys then ran around and tore up the office. J.A. was physically aggressive toward Dr. Dyer, a transportation aide, a caseworker, and another patient in the waiting room. Dr. Dyer called the police, who were able to subdue J.A., only by threatening to handcuff him. The officers called the crisis center at Mountainside Hospital, and J.A. bit the worker who transported him there.
Dr. Dyer stated that J.A. had "extremely severe behavior problems," and had problems in the top five percent of all of the children he had seen since the early 1980s. Dr. Dyer was particularly concerned with J.A. because, unlike most problem children, J.A.'s outbursts were not a "disorganized discharge of aggression." Rather, J.A. displayed a "calculating pattern" to intimidate adults. This pattern was harder to modify given its deliberate nature. The parents' parenting style reinforced J.A.'s behavior. Dr. Dyer opined that the parents were not "equipped" to handle J.A. However, he also felt that J.A. was not an adoptable child. J.A. expressed that he did not want to be adopted and, therefore, opined Dr. Dyer, he would manipulate the situation through his behavior to avoid that scenario.
S.A., Jr. was at risk for developing the severe problems that J.A. had. S.A., Jr. was capable of significant behavioral changes in the "right type of structured environment" where rules and consequences existed. Dr. Dyer felt that if J.A. was not in the house, S.A., Jr. could be returned to his parents with "considerable support and assistance."
Dr. Dyer evaluated S.A.'s relationship with her parents and her foster parents and found that she was "profoundly attached" to her foster parents. She would suffer a "traumatic loss" as well as severe and enduring harm should she be separated from them. She would also suffer if she were returned to her parents because she would receive a lower level of care with them, and that would compound the effects of the loss of her foster parents. Mother and Father denied that S.A. had any special needs which would preclude the parents from cooperating with the special education services S.A. might need. Dr. Dyer further opined that if S.A. were at home with her brothers, she would be at risk as the target of their aggression. Although S.A. would suffer the loss of her siblings if she were adopted, the negative effects of being returned to her parents would "outweigh and overshadow" any benefits to being with her siblings.
Clinical psychologist Fredericka Brown conducted an evaluation of both parents in November 2006 on behalf of J.A. She administered the Child Abuse Potential Inventory to Father and determined that Father scored high in the "rigidity" area, which measures a person's ability to be flexible in stressful situations. She found that Father was not likely to change his parenting ways even when they did not work. However, she did not believe his rigidity was to the point of not being able to handle J.A. He had the ability to put the children's needs above his own. Dr. Brown found that Mother scored low on the child abuse scale. She determined that Mother had improved with therapy.
Eugene Getter, a social worker at the Holley Center, testified at the trial that the parents were involved in therapy at the school and were always on time for sessions. He believed that the parents showed knowledge of J.A.'s needs and Mother knew when to intervene.
Dr. Ronald Silikovitz, a psychologist, also testified at trial, on behalf of the parents. After administering the Wechsler Abbreviated Scale of Intelligence, he found that Mother was toward the upper end of average in intelligence. He also administered the Minnesota Multiphasic Personality Inventory and found that Mother suffered from no diagnosable condition or personality disorder. Mother felt as though she had complied with DYFS's requirements, including therapy, housing, and employment, and was in a position to care for the children. Mother was aware of J.A.'s behavioral issues and was learning from the Holley Center how to manage him. She believed that S.A., Jr. had behavioral issues, although they were not as severe as J.A.'s. She understood that S.A. had a bond with her foster parents and removing her from them might cause trouble, but she wanted her daughter back.
Dr. Silikovitz believed that intellectually, Father had the ability to parent. He now understood his wife's depression and J.A.'s problems.
Dr. Silikovitz saw the entire family together and witnessed that the parents were able to enforce rules with their children. He believed there was a bond between the children and their parents. He also saw S.A. with her foster parents and found that she was relaxed and comfortable with them and called them "mom" and "dad." He believed there was a bond between S.A. and her foster parents. Dr. Silikovitz recommended that S.A. be returned to Mother and Father, although he admitted that it was a "close" and "difficult" decision. His decision was based on his belief that the negative effects on S.A. of severing the sibling bond outweighed the foster parent bond. He admitted that S.A. would suffer short-term behavior issues if the bond with her foster parents was broken, but he did not believe that she would suffer long-term damage. He recommended a gradual reunification with therapy for S.A. to help her adjust.
Both Mother and Father testified at trial. Mother admitted that DYFS was justified in removing the children both times, i.e., August 2004 and April 2005. Looking back, she realized that she had not dealt with her depression or her marital issues. The individual and couple's counseling she had received helped her gain insight into her children and marriage. The Holley Center also helped her deal with J.A. better. She acknowledged that S.A., Jr. had oppositional disorder, and that S.A. might have special needs. She felt she had "grown up and stabilized."
Father believed that the counseling he received helped him learn to deal with J.A. He supported special education for his children. He stated, "we're different people now."
On December 11, 2006, following testimony and summations, the trial court determined that although the parents were "still in need of services to understand and address their children's needs and their own needs," DYFS did not show that the parental rights to the three children should be terminated. Specifically, the trial judge found that the parents had benefited from numerous services and it was not shown by clear and convincing evidence that the children would be exposed to recurrent harm if returned to the home and "services are continued." Similarly, he found that although the parents were initially resistant to intervention, "therapy and counseling have begun to provide the defendants with a road map for improving their marital relationship and the importance of a stable environment." Therefore, DYFS did not show that the parents were unable or unwilling to eliminate the harm or unable or unwilling to provide a safe and stable home. The court did find, however, that DYFS had made reasonable efforts to provide services to the family.
In assessing whether DYFS had shown that the termination of parental rights would not do more harm than good with respect to S.A., the judge stated:
There was no evidence to show that she has not done well in this placement. Dr. Dyer testified that termination of parental rights would not do more harm than good. He did suggest that reunification might be accomplished, but there would be some harmful effects anticipated on [S.A.]
Dr. Dyer's testimony and report . . . clearly recognizes a continued emotional attachment that [S.A.] has to the defendants and her siblings.
Dr. Elizabeth Smith, called by [S.A.'s] law guardian, while advocating for a termination of parental rights for [S.A.], acknowledged a bond still existing with her natural parents. . . . Dr. Smith did not feel defendants capable of parenting [S.A.] with all three children, and that she would be at risk for reunification [sic].
Dr. Ronald Silikovitz, the defendants' expert, supported reunification for [S.A.] with a gradual process. . . .
The testimony of the defendants and all experts show a bond still existing between [S.A.] and the defendants.
This Court finds that with a careful analysis of all the evidence, that the Division has not proven this prong by clear and convincing evidence.
The trial court ordered a dismissal of the guardianship complaint concerning all three children, but kept open the abuse and neglect case. He ordered that DYFS retain legal custody of S.A., Jr., but that he be returned to the physical custody of his parents no later than December 15, 2006. He ordered Dr. Dyer to work with DYFS to come up with a gradual plan for reunification of S.A. with her biological family. When contacted, Dr. Dyer declined to prepare a reunification plan for S.A. because "there was really nothing that I could contribute that in any way, shape, or form, [would] reduce the harm associated with removing this child and reunifying her." In light of Dr. Dyer's refusal to craft a plan, the trial court suggested that Dr. Smith do so.*fn2
DYFS appealed the decision as to S.A. only, on December 11, 2006, and S.A's Law Guardian appealed as well. While the appeals were pending, the Law Guardian moved before us that she be permitted to supplement the record with additional letters and reports on the family, which had been generated since the trial in November 2006. On April 23, 2007, we denied the motion to supplement the record, but remanded the matter to allow for the "presentation of the new evidence for consideration by the trial court."
In August 2007, in accordance with our order, the remand hearing regarding S.A. was held. The trial court was then advised of the circumstances in the family since its decision in December 2006.
J.A. remained at the Holley Center, with weekend visitation at the Center's discretion, but DYFS's plan for J.A. was for eventual reunification with his parents. In March 2007, he was diagnosed with bipolar disorder. In April 2007, J.A.'s visitation with the family was terminated due to behavioral problems. This included "oppositional, threatening, and antagonistic behavior toward his parents, siblings and . . . the visitation worker." J.A. "mooned" his father when the father attempted to discipline him. The FEP staff supervising the visitation was concerned with S.A., who "appears to tune out or shut down when this behavior starts." The parents, who were consumed with J.A., were unable to focus on the other children.
Throughout this period, observers noted that the parents were unable to control either boy. In just one example, while at home with his family on May 19, 2007, J.A. hit his brother, then attacked his father when he attempted to intervene.
In accordance with the reunification order, S.A., Jr. was returned home in December 2006. Mother quit her job to take care of him. Kerri Bossardet West, a licensed clinical social worker, was his individual therapist for almost two years. She noted that S.A., Jr. had been diagnosed with ADHD and oppositional defiant disorder. Prior to his being returned home, S.A., Jr.'s hygiene was fine, but once he returned to his parents, he came to sessions not bathed, with dried food on his clothes, with his hair unkempt, with a white film on his teeth, and with dirt between his fingers, on his neck and feet, and under his nails. Ms. West repeatedly pointed out her concerns to Mother, who sometimes considered her comments but mostly seemed avoidant and annoyed.
Ms. West also observed that since S.A., Jr. had been home, he had become more difficult to redirect. He acted out by climbing on furniture, stomping on games, not following directions, refusing to answer questions, and throwing toys. She was also concerned that S.A., Jr. was not taking his medication regularly, as he had not kept his psychiatric appointments necessary to obtain the prescriptions.
S.A., Jr. told Ms. West of two occasions when his parents fought, including one where he witnessed his father push his mother, and in which S.A., Jr. got stepped on. Mother admitted this incident after being confronted. In the other incident, S.A., Jr. saw his parents slapping and grabbing each other. Mother also admitted this incident, and said that she might have thrown the television remote just as S.A., Jr. entered the room.
Ms. West voiced her concerns about the parents being able to take care of S.A., Jr. and S.A., especially when J.A. was present. S.A., Jr. expressed fear of J.A. J.A. took up so much of his parents' time that they were not able to devote the necessary time to the other children. She believed that the parents were not able to maintain the "organization and structure" that the children needed.
Dr. Meredith Lippman began individual therapy sessions with Mother in February 2007 and ended them in June 2007, when she found that Mother had made no progress. During their sessions, Mother admitted that she enjoyed keeping people, including therapists, from understanding her. Dr. Lippman found Mother to be "consciously evasive," but noted that Mother said she did not want to say anything that could be used against her in court.
Mother did admit, however, that it was more difficult to run her household and maintain routine when both boys were there. Although Dr. Lippman raised issues about Mother's declining hygiene, Mother said she did not want to make any changes. When Dr. Lippman raised concerns about S.A., Jr.'s hygiene, Mother was "resistant and defensive." Although Mother signed a treatment plan on April 2, 2007, in which she made medication compliance a treatment goal, by the end of their sessions, Mother had stopped taking her medication, stating that she did not see that it made a difference. Dr. Lippman, in consultation with the FEP treatment team, discontinued Mother's treatment because Mother displayed a lack of understanding of treatment goals, lacked acceptance of her need for treatment, lacked motivation, and provided a lot of resistance.
S.A. began individual therapy sessions with Dr. Heidi Jacobsen on March 21, 2007. Dr. Jacobsen noted that S.A. had been classified as preschool handicapped and attended both a preschool handicapped and a Head Start program. She had some delays and limitations and a continued need for speech therapy. S.A. needed extra attention and structure to help with her handicaps.
Dr. Jacobsen found that S.A. identified herself as part of her foster family. As time passed, S.A. felt more bonded with her foster parents, and a distance grew between her and her biological parents, whom she referred to as the "A.s" or "S.A., Jr.'s parents." Although S.A. had affection for her parents, and strong, positive feelings toward her brother, S.A., Jr., she was resistant to being part of her birth family. Dr. Jacobsen had been trying to get S.A. to understand that she could be part of both families, but she had not had any success. Dr. Jacobsen opined that if S.A. were returned to her parents and then removed again, there would be a "significant negative impact" on her.
Dr. Smith conducted additional observations of S.A., with both her foster parents and her biological parents, and reviewed "voluminous documentation" that had been generated since the trial. Dr. Smith found this bonding evaluation to be easier to conduct with S.A., as her language skills had improved. At the session with the biological parents, Smith found S.A. to be "anxious." She would not call them "mom" and "dad" and refused to hug them. At the beginning of the session, S.A. told Dr. Smith that she was not supposed to call the biological parents "mom" and "dad" or hug them, and when Dr. Smith inquired after the session as to who said it was not okay to do those things, she replied, "My mommy and daddy," meaning her foster parents. She said this in an "offhand way" without anxiety, which led Dr. Smith to believe that S.A. was using her foster parents to deflect responsibility for the decision from herself. If kids are being programmed, said Dr. Smith, they would blame the other "with consternation," but S.A. displayed none. Further, Dr. Smith believed that S.A.'s primary defense mechanism was dissociation, and placing the blame on someone else was consistent with that trait. Dr. Smith also confronted the foster mother about this, and she said she "would never" tell S.A. those things. Dr. Smith raised the issue again with both the foster mother and S.A. present, and the foster mother told S.A. that it was okay for her to hug her parents and to call them "mom" and "dad," and that it would not hurt her feelings.
Dr. Smith expressed concern about the parents' continuing problems (Mother's mental health, their fighting, lack of health insurance, poor judgment), and believed that without DYFS oversight, things would deteriorate quickly. As an example of their inability to maintain the gains they may have made, she noted that after three years, the family still had to be instructed to wash their hands. Further, she was concerned that if problems arose in the home, the parents would not tell anyone. The parents did not have a good perception of S.A.'s needs and did not appreciate the trauma she would undergo if she returned to live with them. Dr. Smith was also concerned with the physical danger S.A.'s brothers posed to her.
Dr. Smith found that S.A. was in an "absolute panic" about leaving her foster family. All of her memories were of her foster family, and she perceived them as her psychological family. Dr. Smith believed that moving S.A. would cause "severe consequences that could not be mitigated." She feared that S.A. would become "dissociative" to the point of pathological levels, which would engender behavioral problems.
Dr. Dyer, although he refused to prepare a reunification plan, reviewed the case history since December 2006 and testified at the remand hearing. He believed that the events since the first trial "strongly corroborated" his earlier opinion that S.A. should not be returned to her parents, and that the situation at the remand hearing was even less favorable for returning S.A. than at the time of the first trial. The parents showed poor compliance with the treatment plan. Although they attended therapy, they were not using it appropriately. They were still unable to establish rules, set limits, and enforce consequences. They did not appreciate the scope of the problem with J.A. Mother resisted treatment, feeling that she did not need it, contrary to every expert's opinion. Her poor hygiene and that of her children showed that she was overwhelmed. Dr. Dyer believed that Mother was on a "slippery slope." Once the support services were withdrawn, the situation in the home was likely to deteriorate.
According to Dr. Dyer, S.A. was now aware of the conflicting aspects of her custody, was even more integrated as a member of her foster family, and saw her biological family as a threat to her stability. Were the parents' rights terminated, S.A. would suffer a loss from not having S.A., Jr. in her life, but not the "devastating psychologically disorganizing loss" she would suffer if she were removed from her foster parents. Should she be removed from her foster parents, S.A. would suffer an impairment of trust, and an impairment of the ability to form attachments to new caretakers, including her parents. S.A. would have a "negative, defiant, rejecting" attitude toward her birth mother, which would put more stress on Mother, making her psychological status even more tenuous. S.A. would be at risk for depression and personality disorder in adolescence and adulthood.
Dr. Silikovitz also testified at the remand hearing to express his opinions after performing an updated bonding evaluation with both the foster parents and the biological parents. Although he agreed that S.A. was "definitely bonded" to her foster parents, he found that she also had a bond, although not as strong, to her biological parents. He conceded that the bond with her biological parents was not as strong as the last time he had seen her. He believed this was due in part to the passage of time, but also could have been a consequence of the foster parents coaching her and trying to insert a wedge between S.A. and her parents. He believed that the parents did not minimize J.A.'s condition, and that they were receptive to services.
Dr. Silikovitz believed that S.A. was becoming confused and distressed by the situation and, therefore, he recommended immediate reunification with her parents, with the foster parents continuing to be involved in S.A.'s therapy.
Family Intervention Services visited the parents' home for sixteen sessions between June 30 and August 2, 2007. Personnel observed J.A. becoming physically and verbally aggressive toward his brother and mother. Mother was not consistent in applying consequences to J.A. or S.A., Jr. when they acted out.
Neither parent testified at the remand hearing.
On September 4, 2007, the trial court placed its opinion on the record, finding that DYFS had proven by clear and convincing evidence that both Mother and Father's parental rights should be terminated as to S.A. On the same date, the trial court signed a judgment of guardianship terminating both Mother and Father's parental rights and granting guardianship to DYFS. The order also gave DYFS the right to consent to S.A.'s adoption. In light of the court's ruling, DYFS and the Law Guardian withdrew their earlier filed appeals.
The Father filed a timely notice of appeal on October 17, 2007. Mother filed a separate notice of appeal on the same date. These appeals were consolidated.
In January 2008, Mother gave birth to another child, M.A., who was added to the open abuse and neglect matter regarding J.A. and S.A., Jr.
Oral argument was held on October 2, 2008. At the time of oral argument, J.A. was eleven years and six months old; S.A., Jr. was seven years and five months old; S.A. was five years and nine months old; and M.A. was approximately ten-months old.
S.A. has been placed out of her home at this point for approximately three and one-half years.
On appeal, Mother and Father present the following arguments for our consideration:
POINT I: DID THE COURT ERR BY USING EXPERTS RETAINED BY DYFS AND S.A.'S LAW GUARDIAN AS COURT-APPOINTED EXPERTS INSTEAD OF RETAINING UNBIASED PROFESSIONALS FOR ADVICE (Father's point I; Mother's point II, in part)?
POINT II: DID THE MOTION PANEL OF THE APPELLATE DIVISION IMPROPERLY REMAND THE MATTER FOR RECONSIDERATION BY THE TRIAL COURT BASED UPON NOTHING MORE THAN HEARSAY AND COLLOQUY WITHOUT EVEN PERMITTING THE PARENTS THE OPPORTUNITY TO SUBMIT BRIEFS CONCERNING THE EVIDENCE PRESENTED AT TRIAL OR TO CHALLENGE THE EVIDENCE SUBMITTED ON THE LAW GUARDIAN'S MOTION (Father's point II)?
POINT III: DID THE COURT ERR BY FINDING THAT DYFS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT IT WAS NECESSARY TO TERMINATE FATHER AND MOTHER'S PARENTAL RIGHTS (Father's point III; Mother's point I and point II, in part)?
A. DID THE COURT ERR BY FINDING THAT S.A'S SAFETY, HEALTH AND WELFARE WERE ENDANGERED (Father's point IIIA; Mother's point I)?
B. DID THE COURT ERR BY FINDING THAT FATHER AND MOTHER WERE UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING THEIR DAUGHTER AND WERE NOT ABLE TO PROVIDE A SAFE AND STABLE HOME FOR HER (Father's point IIIB; Mother's point II)?
C. DID THE COURT ERR BY FINDING THAT DYFS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP FATHER CORRECT THE CIRCUMSTANCES THAT LED TO HIS DAUGHTER'S PLACEMENT OUTSIDE THE HOME, AND DID THE COURT FAIL TO CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS (Father's point IIIC)?
D. DID THE COURT ERR BY FINDING THAT TERMINATION WOULD NOT DO MORE HARM THAN GOOD, AND IN RELYING ON THE BOND BETWEEN S.A. AND THE FOSTER PARENTS TO SUPPORT THIS PRONG (Father's point IIIB, in part and Father's point IIID; Mother's point II, in part)?
In addition to the issues set forth above, at oral argument, counsel for Mother and Father each suggested to us that the matter be remanded again to the trial court for it to consider not only the parents' current situation but their progress since September 4, 2007, the date the trial court ordered the termination of their parental rights to S.A. They argue that since that time the family has been supervised by DYFS and received satisfactory reports. They further argue that in January 2008, a fourth child, M.A., was born and they have managed the family situation well, even with a new child. Accordingly, they argue for a remand at this time for the trial court to consider these developments.
We disagree with Mother and Father's counsel and find that a remand at this time would be inappropriate. First of all, we note that neither counsel has in the one year since the filing of the notice of appeal, filed a motion to either supplement the record or remand the matter for further proceedings. Moreover, neither counsel has submitted affidavits or proffered other proofs to substantiate their oral representations.
Most importantly, however, is the fact that S.A. has been placed out of her home for three and one-half years.*fn3 "[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 & 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)). "[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 N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986)).
The need for permanency has been recognized and is embodied in our statutes. See N.J.S.A. 30:4C-15(f). Our statutes provide that where a child has been placed out of the home with a resource family for fifteen of the most recent twenty-two months, a guardianship complaint must be filed. Ibid. In addition, N.J.S.A. 30:4C-15.2 provides that the final hearing for guardianship is to be held within three months from the date the petition is filed. This statutory structure recognizes and requires that permanency be determined in an expeditious fashion. The New Jersey Legislature clearly expressed its intention that when children are placed in foster care, there be a prompt resolution to their placement. In this case, S.A. has been placed outside the home for forty-two months and permanency has still not been achieved.
Our child placement statues were revised and adopted in 1999 to conform to the federal Adoption and Safe Family Act of 1997 (ASFA). In re Guardianship of D.J.M., 325 N.J. Super. 150, 154 (Ch. Div. 1999). In K.H.O., we acknowledged that ASFA "seems to place a greater degree of emphasis on permanency by imposing reduced time limits, under certain circumstances, upon the duration of foster care and the timely freeing of foster care children for adoption." In the Matter of the Guardianship of K.H.O., 308 N.J. Super. 432, n.3 (App. Div. 1998), rev'd, 161 N.J. 337 (1999). "While foster care serves a valuable purpose, prolonged it can have a negative psychological impact on the child[ren]." In re Guardianship of D.J.M., supra, 325 N.J. Super. at 154.
ASFA mandates a state to file a termination of parental rights petition where a child is under ten and has spent fifteen of the last twenty-two months in state foster care. 42 U.S.C.A. § 675(5)(E). Congress, in enacting this statute, pointed out the reason for this provision by noting: children are experiencing increasingly longer stays in foster care. The medium length of stay for children is now more than two years . . . the emerging statistical picture shows that young children are spending a substantial portion of their childhood in a system that is designed to be temporary. This provision addresses these long stays in foster care by requiring that a state file a termination of parental rights' petition when a child under ten has spent eighteen of the past twenty-four months in state foster care. [H.R. Rep., No. 105-77, at 12 (1997), reprinted in 1997 U.S.C.C.A.N. 2739 at 2744.]
To remand this matter at this time, in our opinion, would violate the public policy embodied in our statutes and more importantly do a disservice to S.A. who now has been waiting over three and a half years for a permanency determination and who has spent more than half of her life in foster care. Accordingly, we find a remand inappropriate.
Father and Mother argue that the trial court improperly used experts retained by DYFS and S.A.'s Law Guardian as court-appointed experts to help the court determine how S.A.'s reunification should be accomplished. They claim the lack of progress regarding S.A.'s reunification was attributable to the selection of these experts, who harbored bias because they did not believe S.A. should be returned home. Therefore, they conclude we should reverse the trial court's order and order S.A. immediately reunited with her parents. Neither DYFS nor S.A.'s Law Guardian responded to this argument.
The trial court, following its December 11, 2006, decision, directed "the Division of Youth and Family Services to utilize the services of Dr. Dyer and other therapists to develop and implement a reunification plan to transition [S.A.] back with her parents." As noted, Dr. Dyer declined to take part in the plan, as he believed under no circumstances should S.A. be returned to her parents. In light of Dr. Dyer's refusal to participate, the trial court suggested Dr. Smith step in. She was the expert retained by S.A., who was also of the opinion that S.A. should not be returned to her parents. Nevertheless, she did draft a reunification plan, but one Father contends, "was designed to fail."
Preliminarily, we note that neither parent objected to the trial court's appointment of Dr. Dyer at the time it was made, nor did they ask the trial court to reconsider its selection. Further, neither objected when Dr. Smith was asked to step into Dr. Dyer's role. As the issue was not raised in the trial court, we need not consider it on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
We note further that Dr. Dyer did not accept the role tendered by the trial court, and his appointment had no effect on the trial court's later decision on remand.
We disagree with Father's claim that the trial court improperly ceded authority to DYFS. At a review hearing on February 1, 2007, the court asked whether Dr. Smith could take Dr. Dyer's place. DYFS had the responsibility to carry out the court's direction, and it did. The trial court, however, kept direction and oversight of the reunification plan and did not cede its authority to DYFS.
As to the selection of Dr. Smith, Mother and Father argue that an unbiased expert was needed, and Father relies on Rule 5:3-3(a) for the proposition that it was impermissible to utilize the services of Dr. Smith. Rule 5:3-3(a) states:
Whenever the court, in its discretion, concludes that the disposition of an issue will be assisted by expert opinion . . . the court may order any person under its jurisdiction to be examined by a physician, psychiatrist, psychologist or other health or mental health professional designated by it. No such appointment, however, shall be made of an expert who is providing or has provided therapy to any member of that person's family.
This Rule does not support defendants' argument. Dr. Smith did not provide therapy to any party. Moreover, the Rule is intended to apply to experts who will assist a court in disposing of an issue. Here, the court had already made the decision to reunite S.A. with her family. The court merely sought guidance on how best to effectuate that decision. Choosing a person already familiar with the family was the logical choice, given the family's extensive history and the need to develop a plan expeditiously. While Dr. Smith's position at trial was that S.A. should not be reunited with her family, she accepted the assignment to draft a reunification plan. To assert that she intentionally thwarted the reunification effort implies that she acted unethically and risked harming S.A. by proposing a plan that was not in S.A.'s best interests. While defendants may have disagreed with Dr. Smith's approach, there was no evidence that Dr. Smith did anything but make recommendations based on S.A.'s best interests.
In sum, defendants have not shown any basis for reversing the termination order based on the choice of a therapist to help facilitate the reunification of S.A. with her family.
In his second point, Father contends that when the Law Guardian inappropriately sought to supplement the record on appeal, we improperly remanded this matter for reconsideration, which led to the unjust reversal by the trial court of its original order. Neither DYFS nor the Law Guardian addressed this issue.
While the first order from the trial court was on appeal, the Law Guardian moved to supplement the record under Rule 2:5-5. Father claims that the Rule did not allow supplementing the record. This issue need not be decided because we denied the motion to supplement. On our own initiative, we remanded the case to the trial court to allow that court to hear evidence concerning events that had transpired since the first trial. Father argues that our order was "inequitable" because he did not have the opportunity to address the merits of a remand, as he was only on notice that a motion to supplement the record had been filed.
We note that when we ordered the remand, Father could have asked for reconsideration under Rule 2:11-6(a). If he did not obtain reconsideration, he had the option to seek leave to appeal the interlocutory order under Rule 2:2-2(b), which allows appeals "when necessary to prevent irreparable injury."
Instead, he did nothing, evidently preferring to proceed with the remand.
Lastly, we believe it was appropriate, in the exercise of our discretionary power, to sua sponte remand the matter so that the trial court could review the new developments which may have affected the best interests of S.A., who at that time had been out of her home for twenty-four months as opposed to the forty-two months at present. We believe this to have been proper and an exercise in judicial economy. If we had then proceeded with a review of the trial court's December 11, 2006, opinion and affirmed, more time would have passed and then DYFS could have reinstituted a guardianship based on the new evidence and there would be a lengthy delay in determining S.A.'s final placement and a needless expenditure of judicial resources. See Weisburg v. Koprowski, 17 N.J. 362 (1955).
We turn now to the parents' argument that the termination of their parental rights to S.A. was not in conformance with the appropriate statute and case law.
Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). However, the constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
Under N.J.S.A. 30:4C-15.1(a), DYFS can initiate a petition to terminate parental rights on the grounds of the "best interests of the child" if the following standards are met:
(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.
"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.
Termination of parental rights permanently cuts off the relationship between children and their biological parents. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). When the biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise their children without causing them further harm. Ibid. The burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child. Ibid.
The Supreme Court has recognized, however, that children have a "paramount need" for "permanent and defined parent-child relationships." Id. at 26. There are "strong policy considerations that underscore the need to secure permanency and stability for the child without undue delay." In re Guardianship of DMH, 161 N.J. 365, 385 (1999).
The scope of an appellate court's review of a trial court's fact finding in a termination case is a limited one.
"Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice,' and are upheld whenever they are 'supported by adequate substantial and credible evidence.'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988), quoting Rova Farms Resort & Investors Ins. Co., 65 N.J. 474, 483-84 (1974). An appellate court "may make new and independent findings of fact in cases tried without a jury, [citations omitted] but . . . 'when the result of the contest must turn on the truthfulness of the witnesses, the superior advantage of the trial judge in seeing and hearing and appraising the disputants must ordinarily be regarded as the fulcrum on which the issue should be resolved.'" Rubel & Jensen Corp. v. Rubel, 85 N.J. Super. 27, 39-40 (App. Div. 1964), quoting Abeles v. Adams Engineering Co., Inc., 35 N.J. 411, 423-24 (1961). [N.J. Div. of Youth & Family Servs. v. V.K., 236 N.J. Super. 243, 255 (App. Div. 1989), certif. denied, 121 N.J. 614, cert. denied, 495 U.S. 934, 110 S.Ct. 2178, 109 L.Ed. 2d 507 (1990).]
Father contends that DYFS failed to establish by clear and convincing evidence all of the elements necessary to terminate his parental rights to S.A. Mother argues that DYFS failed to prove the first two elements, as well as the fourth element. DYFS, as well as S.A.'s Law Guardian, contend that the trial court was correct in its finding that the evidence clearly and convincingly supported termination.
To meet the first prong of the termination statute, the State must show a harm that threatened the child's health and that it will likely have continuing deleterious effects on the child. K.H.O., supra, 161 N.J. at 337. "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Id. at 348. The absence of physical abuse or neglect is not conclusive; the court also must consider the potential for serious psychological damage. A.W., supra, 103 N.J. at 605; N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002); In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977). A parent's withdrawal of solicitude, nurture, and care for an extended period is itself a harm that endangers the health and development of the child. DMH, supra, 161 N.J. at 379. The "relevant inquiry focuses on the cumulative effect, over time, of harms arising from the home life provided by the parent."
N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 289 (2007).
The potential for serious emotional injury should be regarded as constituting injury to the child. A.W., supra, 103 N.J. at 605. "The potential return of a child to a parent may be so injurious that it would bar such an alternative." Ibid. This is so even though the natural parent is blameless in the loss of custody of the child and would be a good parent. In re Guardianship of J.E.D., 217 N.J. Super. 1, 16 (App. Div. 1987), certif. denied, 111 N.J. 637 (1988). Potential emotional harm must be "serious and enduring." J.C., supra, 129 N.J. at 19.
"Such proof should include the testimony of a well qualified expert who had full opportunity to make a comprehensive, objective, and informed evaluation or the child's relationship with the foster parent." Ibid.
In considering the new evidence adduced at the remand hearing, the trial court made extensive findings. The court was "impressed" with the "thorough and complete" updated report by Dr. Dyer, who believed that defendants' continued poor compliance with treatment plans, failure to respond positively to therapy, inability to establish limits in parenting, and resistance to treatment presented serious and potential harm to S.A. if she were returned to their custody. The trial court noted Dr. Dyer's "deep concern" about the effects of J.A.'s being in the household with S.A., and his concern that Mother was in danger of regression and therefore in danger of losing S.A. again.
The trial court found that in light of the developments since the first trial, it did not consider the opinion of Dr. Silikovitz to be "realistic and credible." It rejected Dr. Silikovitz's idea of having the parents and the foster parents work together to integrate S.A. back into the home.
The trial court found the testimony of Dr. Smith to be "very compelling." It noted that Dr. Smith was concerned with the safety and stability of the household despite the numerous services the parents had received, and Mother's unilaterally stopping her depression medication as well as her "minimization of setting goals and recognizing problems." Dr. Smith was also concerned with the parents' failure to obtain medical insurance despite the assistance that was offered, their lack of response to treatment goals, and the physical disputes between the parties that were witnessed by S.A., Jr. Dr. Smith was also concerned that the parents would not disclose future problems in an effort to minimize DYFS's interference. Dr. Smith noted the trial court was concerned that if S.A. were returned to the home, she would be at risk of physical harm from her brother J.A.
The court found that the parents had continued to struggle with being able to provide a safe, stable, and structured home as testified to by S.A., Jr.'s therapist, Ms. West. The court was "deeply concerned" that if the parents could not maintain proper hygiene for S.A., Jr. that they would not be able to provide it for S.A. either. The parents were also remiss in providing S.A., Jr.'s medication, which made his behavior more difficult to handle.
To further support the trial court's findings on the first prong, the court cited to Dr. Lippman, who believed that Mother was no longer benefiting from therapy and that she was not taking her medication. It also referenced Dr. Jacobsen's testimony regarding S.A.'s special needs. The court further cited to numerous documents admitted into evidence that corroborated the witnesses' testimony. Based on all of this evidence, the court found that S.A.'s safety, health, and development has been or will be endangered by the parental relationship.
Mother contends that the court did not make meticulous fact findings, and it relied on only "concerns" and "presumptions" that had no merit. For instance, there was a "concern" that Mother had stopped taking her medicine, but the only adverse consequence was that her husband said he noticed a difference. Her hygiene was a "concern," but there was no evidence that it caused any health or safety problems. There were "concerns" about J.A. in the household, but no evidence that he would ever be discharged from the Holley Center. She also urges that it was "unfair" for the court to use Dr. Smith's letter of February 26, 2007, which was supposed to be the reunification plan, against her.
Citing A.W., supra, 103 N.J. at 604 (citations omitted), Father notes that the "primary focus of the court should be upon harm for which there is 'unambiguous and universal social condemnation.'" He contends that although the house was cluttered and dirty, the condition of the house was due to Mother's depression, and as such it should not be considered harm for which there is unambiguous and universal social condemnation, because people with depression should receive society's sympathy and assistance to get better, not its condemnation. After Mother received medication, the conditions in the home improved and, therefore, there will not be a continuing deleterious effect. He acknowledges that Mother had wavered in her commitment to taking anti-depressants, but argues that that "should not be given such monumental significance as was done by the trial court." The court, says Father, focused on "minor hygiene issues." The court was not justified in finding that any of these issues posed continuing deleterious effects on S.A.
We find both parents' arguments lack merit. Even if the dirty home and inability to care properly for the children were the result of Mother's depression, the fact that a parent "may be morally blameless is not sufficient to tip the scales in [. . .] [her] favor." A.G., supra, 344 N.J. Super. at 438; J.E.D., supra, 217 N.J. Super. at 16. Moreover, defendants both minimize Mother's refusal to take depression medication, which occurred shortly before the remand hearing. If the conditions were the result of Mother's depression, and when she took her medication her condition improved, the outlook for the future was, as Dr. Dyer expressed it, a slippery slope, with the fear that the home would devolve into the chaos that existed prior to the children's removal.
Even when Mother was taking her medication, as soon as S.A., Jr. was returned, problems reappeared and snowballed. The parents fail to acknowledge the major concerns in this family that were evident after S.A., Jr. was reunited with them. The court's concern with S.A., Jr.'s hygiene was not so much a concern that the child may have been dirtier than socially acceptable, but that it represented more: if the parents could not take care of a basic need such as hygiene, how could they cope with the numerous, serious problems in the family?
A number of the experts opined J.A. posed a serious threat to S.A.'s safety. Even though J.A. was in the home only on weekend visits, such time would certainly be enough to put S.A. at risk. S.A., Jr. too appeared to be a risk to S.A., as his behavior grew increasingly worse as he got older (and once he had been returned home). When the two brothers were together, they required so much attention that the parents would have little time or ability to take care of S.A., a special needs child herself.
Moreover, S.A. was at risk for developing a serious dissociative disorder as she "tuned out" when her brothers acted out. S.A. had special needs that required addressing, and she would face trauma from being separated from her foster parents. Given that her parents' energy went into controlling her brothers, she was at risk for not having her own physical and emotional needs met.
The trial court made specific fact findings based upon sufficient credible evidence to support its conclusion that the performance of the parents after S.A., Jr. was returned showed that returning S.A. to their care put S.A. at great physical and emotional risk.
The second element of the statute is aimed at determining whether the parent has cured or overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child, or alternatively, that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm. K.H.O., supra, 161 N.J. at 348-49. The first and second prongs are related to one another, and evidence that supports one may support the other. DMH, supra, 161 N.J. at 379.
In supporting this prong, the trial court again relied on Dr. Dyer, who testified that the parents were unable or unwilling to comply with the treatment plans, they did not use therapy appropriately, they did not establish limits in parenting, they were in denial as to the extent of their issues, and Mother unilaterally decided to stop taking her medication.
Dr. Dyer found that defendants showed "an inability, as well as an unwillingness to address important issues necessary to establish a safe and stable home for [S.A.]." The court again relied on the testimony cited above of Dr. Smith, Ms. West, and Dr. Lippman, as well as documents to support his conclusion, that the parents were unwilling or unable to eliminate the harm.
Mother complains that the court accepted Dr. Smith and Dr. Dyer's opinions and rejected Dr. Silikovitz's "without analyzing the evidence on [the trial court's] own." Father argues that the parents have shown that they are willing and able to provide S.A. with a safe and stable home. He claims DYFS made many demands upon the family with which the parents "enthusiastically complied." Father lists the many services DYFS provided and maintains that through the services and therapy offered they were able to "identify and correct the problems in their relationship and household." He downplays J.A.'s threat to S.A. by noting that Mr. Getter testified that the parents had learned how to respond to and manage J.A.'s behavior, and that J.A. gets along well with girls. J.A. had never actually harmed or threatened to harm S.A., and at any rate, he will not return home until his behavior is under control.
"Predictions as to probable future conduct can only be based upon past performance. . . ." J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978). This case is unusual in that it gave the trial court the opportunity to see whether the parents really did have the ability to eliminate the harm facing S.A. prior to her return, by reviewing their progress once their other child, S.A., Jr., had been returned. While the parents were largely willing to cure the family problems, the evidence showed that they were unable in actual practice to carry out their good intentions. Father acknowledges all of the services they received, but fails to acknowledge that despite intensive services over several years, and despite ongoing services, once S.A., Jr. was returned to the home, the parents could not maintain a safe and stable home. The parents failed to refill S.A., Jr.'s medication, failed to keep him clean, and failed to take seriously his therapist's concerns for his health and safety. The parents physically fought in front of S.A., Jr., a development coming after the first trial and S.A., Jr.'s return, which shows that despite what the parents claim they gleaned from couple's therapy, they had not benefited much from it. Dr. Lippman testified that Mother's therapy was discontinued for lack of effort on Mother's part, and Mother unilaterally discontinued her depression medication, which all experts who had examined her throughout DYFS's involvement found was necessary to her, and by extension, her children's well-being.
Although Father correctly states that J.A. has never actually harmed S.A., and argues that they have learned ways of controlling his behavior, there were many instances between the trial and remand hearing that showed that the parents still had difficulty controlling J.A. (who was diagnosed as bipolar after the first trial), and increasing difficulty controlling S.A., Jr. An FEP report from February 19, 2007, indicated that both parents were unable to control either boy. On April 17, 2007, both boys had climbed out of their bedroom window and were found playing in the rain. A TSVP report showed that on July 11, 2007, S.A., Jr. acted out in S.A.'s presence and would not respond to his parents' redirection. The court had ample basis to find that the severe behavioral problems of both boys continued to pose a physical threat to S.A., and her parents were unwilling or unable to eliminate the potential harm. Even if the boys did not pose a physical threat to S.A., they drained so much of the parents' time and energy that S.A.'s needs were unlikely to be met.
In the alternative, this prong can also be met by reviewing its second part: that the parents are unable to provide a safe and stable home and delay in permanent placement will add to the harm. N.J.S.A. 30:4C-15.1(a)(2). To support this finding, the trial court relied on the testimony of Dr. Smith, who said that S.A. had formed an extreme attachment to her foster parents and distanced herself from her parents. Dr. Smith, as well as Dr. Dyer, was of the opinion that "the continued lack of permanency poses great risk to [S.A.] and continues to harm her."
Testimony supported the court's finding that the parents were unable to provide a safe and stable home and further delay would cause serious and enduring emotional harm because S.A. would suffer the loss of her foster parents. There was no indication of when the biological parents would stabilize their home, but an abundance of evidence that separating S.A. from her foster parents would cause serious and enduring emotional or psychological harm to the child. It is noted that the longer the situation went on, the more aware S.A. became of the conflict and the more stress she experienced. Dr. Smith was concerned that S.A.'s defense mechanism of dissociating when stressed would rise to pathological levels. Further, as time went on, S.A. identified less with her parents and more with her foster parents. The loss of her foster parents would result in an impairment of S.A.'s self-esteem and her ability to trust, and might result in depression in the future. Dr. Dyer was concerned that removing S.A. from her foster parents would cause her to become defiant and reject her mother, adding stress to an already tenuous situation.
Based on this testimony, the court was justified in finding that separating S.A. from her foster parents would cause serious and enduring emotional or psychological harm. Thus, returning S.A. to her parents at some indeterminable time in the future was not an option, given the harm the delay was causing, and would continue to cause the child.
The third element of the statutory test "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 353. "Reasonable efforts" are defined in N.J.S.A. 30:4C-15.1(c) as including but not limited to: 1) consulting and cooperating with the parent in developing a plan for appropriate services; 2) providing services to the family that have been agreed upon, in order to further the goal of family reunification; 3) informing the parent at appropriate intervals of the child's progress, development, and health; and 4) facilitating appropriate visitation. Under N.J.A.C. 10:133I-4.2, DYFS must provide services to the family according to a case plan, including enlisting the assistance of relatives, providing direct services, or providing referrals to community service providers. An evaluation of efforts undertaken by DYFS to reunite a particular family must be done on an individualized basis. DMH, supra, 161 N.J. at 387 and 390. "Whether particular services are necessary in order to comply with the diligent efforts requirement must therefore be decided with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort." Ibid.
The court found that "numerous services" were provided to the parents to help them correct the circumstances that initially led to the child's placement, and it cited them. Father does not contest that "numerous" services were offered. Instead, in a novel argument, he asserts that the services "were so numerous, time consuming and inconveniently scheduled that they can not be considered 'reasonable,' and indeed, harmed the family's chance at reunification." Father complains that he was required to attend weekly individual therapy, couples' counseling, weekly visits with his children, weekly therapeutic visits with his children, bi-weekly family counseling at the Holley Center, and parenting classes, and in addition, had to appear for court sessions and bonding evaluations. He asserts DYFS did not schedule these obligations at convenient times, and some of these requirements caused him to miss work. He argues that the "burdensome schedule of demanded services" caused him to lose his State job, and then, DYFS used his unemployment against him. He lost his State health benefits and thus drug coverage for his family. These requirements caused a financial hardship on the family and were not "reasonable."
Father presents no legal authority for his position. Nor does Father point to any stage of the litigation in which he requested different times for these services but was denied by DYFS. He points to no motion to the court to modify the obligations placed on him. Moreover, he uses his DYFS commitments as an excuse for losing his job, but he testified that he was suspended because he had driven a State car while his license was suspended, and because he needed to work full time, he then quit.
This prong also requires a consideration by the court of the alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3). The judge stated that S.A.'s "placement in a preadoptive foster home for over 28 months, coupled with her tender age of four and a half years and special needs does not provide an alternative to termination of parental rights."
Father contends that the "clear alternative" to terminating S.A.'s parental rights was to have J.A. remain in DYFS custody until he was stable enough to be returned home. He points to no part of the record wherein he made this suggestion below. Even if he had, it is no different than what the court had already ordered. J.A. will not return home until he is deemed ready by the professionals at the Holley Center. Nevertheless, he will still be home on weekends and holidays, and he will pose a threat to S.A. at those times. Such an arrangement is not a true alternative to terminating Father's parental rights to S.A.
We find that the trial court's findings with respect to the third prong were supported by sufficient credible evidence.
Finally, DYFS must show that the termination of parental rights will not do more harm than good. The question under this prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with the foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirements of N.J.S.A. 30:4C-15.1(a)(4). . . ." Id. at 363.
The trial court found:
Today, the Court finds from the record that the separation of [S.A.] from her foster parents, where she has now been for more than 28 months, and who have comprehensively cared for her special needs, supports the finding that her return to an unstable, and unsafe home of the defendants is not in [S.A.'s] best interests. This Court finds reunification becomes extremely difficult with the passage of time because a child may develop bonds with their foster family and gain a sense of permanency.
The court focused on Dr. Dyer's testimony that S.A. would suffer a severe loss if separated from her foster family. "Dr. Dyer found the overall picture remains that of a special needs child who is comfortable in her foster home and has an attachment to her foster parents, who have developed a complementary bond to her." Dr. Dyer found that reunification would place S.A. at risk for neglect and psychological harm as a result of the disrupted attachment to her foster parents, regardless of whether J.A. were in the home.
The court also relied on Dr. Smith's testimony that S.A. expressed great anxiety around defendants. The court found no evidence to support the suggestion that S.A. had been coached by the foster parents to reject her natural parents. It found credible Dr. Smith's testimony that children will deflect responsibility for their own feelings and actions onto an authority figure. The court credited Dr. Smith's belief that severe harm would come to S.A. should the bond with the foster parents be severed. Dr. Smith believed that the loss would affect S.A.'s ability to provide affection and love as an adult.
The court gave little credit to Dr. Silikovitz's opinion because Dr. Silikovitz "minimized outstanding issues of the defendants and simplified in an unrealistic manner having the foster parents remain an integral part of [S.A.'s] life when she was reunited with defendants." Dr. Silikovitz also failed to address the "extreme bond" that S.A. had with her foster parents and the harm that would result from a separation from them.
The court concluded:
This Court is reminded that the life of a four-year-old special needs girl is at stake in this Court's determination of her best interest. She requires a highly structured environment that is safe and stable, that will assist her in her special needs, and allow her to grow and develop in a normal and responsible manner.
After also crediting the testimony of Dr. Jacobsen, the court concluded that a termination of parental rights will not do more harm than good.
Father argues that the court's finding was not based on substantial credible evidence in the record. Father maintains that all of the experts at the first trial testified that S.A. was bonded to her parents, the court agreed, and nothing that happened between the two trials changed the analysis. Father then argues that for various reasons such as the viability of the foster parents' marriage and the other children in that household, the foster home will not provide the attention S.A. needs.
Father is mistaken that nothing changed between the first trial and the remand hearing. After the first trial, the parents had the opportunity to show that they had learned from their classes and therapy the skills necessary to run a safe and stable home and marriage. Throughout that period, however, they demonstrated that they were not able to put into practice the lessons taught. At the time of the remand, they were not able to properly care for S.A., Jr., and there was no testimony that they would be capable of parenting S.A. any time soon. Throughout the eight months between trial and remand, S.A. continued to grow and mature, causing her more confusion and anxiety about her situation. She became more attached to her foster parents, and less attached to defendants. The testimony at trial showed her increasingly distancing herself from her parents and increasingly identifying with her foster family.
Both parents complain that the court "ignored" the influence the foster mother had on S.A. in weakening the bond with them and, given that she had no concern for how S.A. "would have been harmed should her ploy have failed," it "can not be said that adoption by this foster parent is in [S.A.'s] best interest." But as noted above, the judge did indeed address this contention, finding that S.A. was not being coached, but rather was using her foster mother as a convenient excuse for her own uncomfortable feelings about her biological family. As this was Dr. Smith's expert opinion after dealings with coaching situations in the past, the trial court's opinion was well supported.
Mother also contends that it was wrong for the court to rely on S.A.'s bond with her foster parents as a reason to terminate her parental rights because the court failed to compel DYFS to timely complete its order for reunification. We disagree with Mother's assessment. The court denied DYFS's request for a stay of its reunification decision. The trial court held a compliance review hearing on February 1, 2007. At that time, questions already were arising with regard to the effect of S.A., Jr.'s return home, and the court recognized that the parents' home had not yet been stabilized with the return of S.A., Jr., which was a prerequisite to S.A.'s return. Dr. Smith did not submit her report until February 26, 2007, at which time she recommended that the home be stabilized for six months prior to S.A.'s return. Another compliance review hearing was held on March 1, 2007, at which time the court accepted Dr. Smith's report, with the exception of the six-month timetable. In the meantime, problems arose with both boys, leading to the March motion before us which resulted in the remand. The trial court did not disregard the parents' rights in not ordering S.A. returned right away, but instead was appropriately waiting for the home to stabilize. It was defendants who complicated the return by their multiple failures. Unfortunately for defendants, the delay served to highlight their difficulties in caring for S.A., Jr., and allowed S.A. to become more bonded to her foster parents.
The testimony of the experts cited by the trial court provided evidence of serious concerns for S.A.'s short and long-term mental health should she be removed from her foster family. On the contrary, there was no evidence provided that the termination of parental rights would do more harm than good.
The trial judge appropriately relied on sufficient, credible evidence in the record that demonstrated clearly and convincingly that the termination of the parents' parental rights would not do more harm than good.
In sum, the trial court had sufficient, credible evidence to support its finding that DYFS met its burden in proving by clear and convincing evidence that the defendants' parental rights should be terminated.