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New Jersey Division of Youth and Family Services v. R.P.


November 7, 2008


On appeal from Superior Court of New Jersey, Chancery Division - Family Part, Essex County, Docket No. FG-07-232-06.

Per curiam.



Argued October 8, 2008

Before Judges Cuff, Fisher and Baxter.

J.M.M., the mother of sons, R.R.M.G., born October 19, 1999, and R.R.M.P., born October 19, 2002, seeks review of an October 3, 2007 order terminating her parental rights. R.P., the father of R.R.M.P, likewise challenges that same order terminating his parental rights.*fn1 Both contend that the Division of Youth and Family Services (DYFS) failed to carry its evidential burden to support this relief. We affirm.*fn2


Although these two appeals are consolidated, we will summarize the pertinent facts separately regarding each of these parents. We do so because they have resided together for only a portion of the relevant time period and their interaction with the children at issue here has followed separate paths.

A. J.M.M.

DYFS involvement with J.M.M. and her two sons began on January 15, 2004, when Newark police executed a search warrant of J.M.M.'s residence and found seventy decks of heroin and heroin paraphernalia. At the time of the raid, J.M.M.'s whereabouts were unknown and her mother, T.M., was watching all six children. Newark police notified DYFS, which placed the two children who are the subject of this appeal with their maternal aunt, S.W. Shortly thereafter, police located J.M.M. and arrested her. Unable to post bail, J.M.M. remained confined for a total of 143 days. J.M.M. ultimately pled guilty to a charge of possession of a controlled dangerous substance on September 15, 2004, and was sentenced to a two-year term of non-custodial probation on January 14, 2005.

On April 5, 2004, DYFS removed the children from S.W.'s care because S.W. and five children were all sleeping in the same room, and a criminal history check revealed an arrest record. DYFS transferred J.M.M.'s two children to a foster mother, S.B., with whom the younger son has been living ever since.

In the spring of 2004, while J.M.M. was still incarcerated, S.B. contacted a service provider who was working with the two children to express concern about the older son's behavior. She reported that, although only four years old, he "flashes gang signs, talks about his family killing people, is very aggressive, likes to fight, attempts to run away from home, and curses."

After her release from jail, J.M.M. tested positive for marijuana on November 20 and December 7, 2004. On February 7, 2005, Catholic Charities terminated her from its substance abuse program because of her lack of motivation to remain drug-free and her refusal to participate in treatment. A month later, on March 8, 2005, J.M.M. failed a urine screening that tested for amphetamines. Nonetheless, she chose not to avail herself of the substance abuse treatment and parenting skills classes that DYFS offered her. In particular, although J.M.M. agreed on April 20, 2005, to accept drug treatment services, become more involved with her children, and make herself available for individual and family counseling, she failed to do so. The provider consequently notified DYFS in June 2005 that J.M.M. had failed to maintain contact with the service provider's caseworker and had failed to accept drug treatment or pursue family counseling.

J.M.M.'s contact with her children was equally disappointing. Although J.M.M. attended the first few scheduled sessions of supervised visitation beginning in December 2004, by the summer of 2005 she had started to arrive late for some visits and missed others entirely. That same pattern continued in 2006, causing the agency that provided the supervision, Tri Cities Peoples Corporation (Tri Cities), to cancel several later sessions when J.M.M. failed to inform Tri Cities whether she would be attending or not. J.M.M. has never offered any explanation for her repeated absences from scheduled visits with her two children.

Despite J.M.M.'s lack of cooperation with DYFS's effort to provide her with substance abuse treatment, DYFS persisted in its efforts to assist her in overcoming her addiction. In the spring of 2006, DYFS referred J.M.M. to yet another program, the Bridge Program, for substance abuse treatment. After J.M.M. failed to attend several sessions and tested positive for marijuana and cocaine, the program terminated J.M.M. on May 1, 2006.

Additionally, in spite of J.M.M.'s earlier failure in the spring of 2005 to attend parenting skills classes and individual therapy, DYFS continued to assist J.M.M. to overcome her shortcomings as a parent by offering her parenting classes at Essex County College. In April 2006, DYFS learned that J.M.M. had continually failed to participate in visitation with her children.

The record demonstrates that J.M.M.'s failings as a parent took a toll on her older son. In particular, in April 2006, the child was admitted to a local hospital for treatment after he claimed he heard voices telling him to hurt his younger brother. Upon discharge, he was sent to a therapeutic foster home to live with a foster parent who has undergone specialized training in addressing the needs of children who have severe behavioral problems. In June 2006, shortly after the older son began living with that foster mother, a psychologist who evaluated him found that he was "functioning below the normal limits [of] cognitive ability, with significant problems of disruptive behavior and oppositional behavior."

In a March 6, 2005 psychological evaluation conducted by Dr. Mark Singer at DYFS's request, Singer observed that he could not recommend reunification of J.M.M. with her children "at this time," because J.M.M. "lacks the emotional and physical resources needed to provide her children with a safe, consistent environment." Those findings paralled an August 3, 2005 psychological assessment of the older son by Linda Torosian, M.A., who concluded that "despite the efforts of his foster mother and his therapist, [the older son] does not appear to have made much progress regarding his behavior problems. . . . [H]is biological mother continues to have a negative impact on [him] and his struggles to improve."

On January 1, 2007, J.M.M. was again incarcerated for possession of CDS and remained locked up through July of that year.

In anticipation of trial, Dr. Frank Dyer conducted a psychological assessment of J.M.M. After interviewing her and reviewing voluminous records, Dyer concluded that there "was really nothing in [J.M.M.'s] interview or test results that would inspire any degree of confidence that she would be able to provide a safe, stable, nurturing, and stimulating home environment for any of her children." He recommended that DYFS "not consider [J.M.M.] as a viable candidate for custody of any of the children who are in placement." At trial, he reiterated those conclusions, adding that the older child "who requires vigilant supervision . . . [and] a great deal of tolerance and patience," would not fare well were he to be reunited with his mother.

Dyer also conducted a bonding assessment of the younger son and his foster mother, S.B. Dyer opined that the child "does not have a concept of any other mother figure besides the foster mother . . . [to whom he is] profoundly attached." Dyer also observed that the foster mother "is very good with this child" and was providing for all of his needs. Dyer opined that if the younger child were removed from his foster mother, who is "his central parental love object," and placed with any other caretaker, "he would suffer a traumatic loss that would have severe and enduring negative psychological consequences."

When asked at trial whether a bonding evaluation between J.M.M. and the older son should have been conducted, Dyer answered no. He opined that J.M.M. was unable to satisfy the older son's extensive psychological needs and "an actual observation" of the two together was unnecessary because he had been able to reach valid conclusions without conducting a formal bonding evaluation.

By the time of trial in September 2007, a DYFS caseworker testified that the older son had successfully adjusted to his placement at the therapeutic foster home, where the foster mother has been able to successfully manage the child's needs and his oppositional behavior. The foster mother is committed to adopting him. The younger child has continued to live with S.B. who is eager to adopt him.

J.M.M. presented the testimony of psychologist Gerald Figurelli, who opined that J.M.M. could be reunited with her children if she were able to establish stable and adequate living arrangements, complete parenting and job skills training, remain drug-free and achieve financial stability. He conceded that his recommendation of reunification was expressly conditioned upon J.M.M. fulfilling those requirements.

J.M.M. testified in her own behalf. She asserted that she was currently employed and attending a substance abuse treatment program, known as Bethel. She contended that she was able to provide a stable home for her two sons.

B. R.P.

Like J.M.M., R.P. has spent a considerable portion of his son's life incarcerated, although in R.P.'s case, his incarceration lasted far longer. His son R.P., Jr. was only seven months old when R.P. was locked up in May 2003. While R.P. was imprisoned, his mother brought his son to visit him "seven to nine times," but those visits halted in the beginning of 2004 when the child was slightly more than one-year-old. R.P. never inquired why his son stopped visiting him in jail.

On September 2, 2004, while R.P. was confined in the Essex County jail, DYFS filed an abuse and neglect complaint that identified R.P. as the father of J.M.M.'s younger son. Although records maintained by the Human Services police department contain a notation that R.P. was served with that complaint, he denies ever having received a copy. On May 17, 2006, when DYFS filed the guardianship complaint that is the subject of this appeal, R.P. was still imprisoned, and was not released until August 2006. He was served with the guardianship complaint on September 13, 2006.

When R.P. was released from prison in August 2006, DYFS immediately offered him services designed to assist him in eliminating the harm he posed to his son. DYFS offered parenting classes, individual therapy and substance abuse treatment. Although R.P. completed the first two, he never attended the drug treatment program. DYFS also provided R.P. with the opportunity for supervised visits with his son. After attending the first three visits in early 2007, R.P. stopped visiting. He testified that he halted his visits when he saw his son becoming upset at having to leave his father at the end of each session. R.P. offered no explanation of why those relatively minor disappointments were preferable to the potentially much larger emotional pain that resulted from the child not seeing his father at all.

Because R.P. had twice tested positive for marijuana by the time of a hearing on March 1, 2007, the judge ordered him to attend substance abuse treatment and AA/NA meetings. The judge also required him to produce information from his probation officer*fn3 concerning the outcome of court-ordered urine drug tests.

In anticipation of the guardianship trial, DYFS asked Dyer to also conduct a psychological evaluation of R.P. After a May 9, 2007 clinical interview of R.P., Dyer described him as "an individual with strong antisocial personality traits who expresses a glib optimism about his capacity to provide a suitable home for his son." Dyer opined that R.P. is "an insecure, emotionally immature young man who relies excessively on a crude denial system to filter out unpleasant or inconvenient aspects of reality."

Dyer observed that R.P.'s plans for his son were extremely vague because R.P. "tends to be rather narcissistic with a grandiose sense of himself and focus on his own needs as opposed to the needs of others." He also opined that R.P. continues to be at risk of continued drug abuse, further arrests and incarceration. Dyer concluded that "[i]f [R.P. Jr.] were to be placed in the care of [R.P.], he would be at risk for neglect, and it is likely that the child care tasks would devolve onto an unsuitable caretaker at some point."

Dyer ultimately recommended that DYFS rule out R.P. as a caregiver for his son.

Dyer also conducted a bonding evaluation of R.P. with his son. While noting that R.P. intermittently acted appropriately with his son, Dyer commented that R.P. then lost interest and seemed indifferent to him. The child was not able to identify R.P. as his father and repeatedly asked to "go home" during the evaluation session.

During the pendency of the guardianship proceedings, DYFS investigated the possibility of placing the children with J.M.M.'s and R.P.'s relatives as an alternative to guardianship and ultimate adoption by non-family members. None were suitable. In particular, the maternal aunt, S.W., lacked appropriate living arrangements and had a prior arrest on a weapons charge. She was ruled out for those reasons. DYFS considered a number of J.M.M.'s other relatives as possible placements, but all were either involved in criminal matters or had inadequate housing to accommodate the two children, and were consequently rejected. None of them have appealed their rejection by DYFS.

R.P.'s mother was ruled out because her significant medical problems, namely her need for two kneecap replacement surgeries and current status as wheelchair-dependent, made her an unsuitable caregiver for a young child. At trial, R.P. offered his brother as a placement option; however, R.P.'s brother was unable to care for R.P.'s son and could only offer economic assistance. R.P. offered no other relatives.

At trial, R.P. offered the expert testimony of psychologist Richard S. Klein, who had conducted a bonding evaluation of father and son. Klein opined that while the child was "intellectually bonded" with his father, "it cannot be stated that [the child] perceives his father as a nurturing, caring parent." In his testimony, Klein conceded that because the child calls men other than R.P. "Daddy," the child is confused as to what a father figure really is. Ultimately, although he recommended that it would be in the child's best interest to have a continued relationship with his father, Klein was not certain that R.P. would be able to successfully parent his son.

At the conclusion of the trial, Judge Callahan rendered a detailed and comprehensive oral opinion in which he concluded that DYFS proved by clear and convincing evidence that termination of both J.M.M.'s and R.P.'s parental rights was warranted and the statutory criteria for doing so had been satisfied.

C. The Court's Decision Concerning J.M.M.

The judge found that J.M.M.'s conduct harmed her children because her arrest and incarceration displaced them and destroyed the stability of their home. Moreover, J.M.M. failed to eliminate the harm that her prior conduct had caused when she continued to abuse drugs and failed to keep the appointments DYFS arranged to help her function as a parent. The judge made a specific finding that J.M.M.'s testimony about successful drug treatment at the Bethel Program was not credible nor did he accept her testimony that she visited her children regularly. The judge commented that the reports from Tri-Cities demonstrated otherwise.

The court credited Dyer's testimony that J.M.M. lacks the capacity to become a suitable parent and characterized Figurelli's assessment of J.M.M. as incomplete at best. Moreover, her separation from the children, which had lasted forty-four months by the time of trial, including more than seven months of incarceration, allowed the children to form emotional bonds with their foster families. The judge concluded that J.M.M.'s inability to care for the children from the time of her arrest, through the time of trial, and for the reasonably foreseeable period after the trial, demonstrated that J.M.M. is unable to eliminate the harm facing the children.

Judge Callahan also found that DYFS made diligent efforts to provide services to help J.M.M. overcome the circumstances that led to the initial removal of the children and their continued out-of-home placement. The judge cited the numerous referrals for parenting skills classes and counseling, as well as opportunities for supervised visitation. He emphasized that J.M.M. had twice been terminated from drug treatment programs and had also been terminated from counseling due to lack of interest and a failure to attend. The judge also found that DYFS thoroughly investigated the family members and friends that J.M.M. identified as potential caregivers, but none were satisfactory.

Judge Callahan also concluded that termination would not do more harm than good. The judge focused on the younger son's strong bond with his foster mother and contrasted that relationship with the far more tenuous relationship the child maintained with J.M.M. Although Dyer never conducted a bonding assessment of the older child with either J.M.M. or with his foster mother, we discern from the judge's remarks a conclusion that termination of parental rights would not do more harm than good in light of the older son's complicated and pervasive psychological problems and J.M.M.'s pronounced and prolonged inability to deal with them.

D. The Court's Decision Concerning R.P.

The judge concluded that R.P.'s prolonged absence from his son's life, as a result of his incarceration from May 2003 through August 2006, resulted in an abdication of R.P.'s responsibilities as a parent. Moreover, R.P.'s history of marijuana abuse and his failure to resolve that problem, despite treatment offered by DYFS, demonstrated an inability to overcome the harm that led to the removal of his son in the first place.

The judge also pointed to R.P.'s prior status as a member of the Bloods gang, and the concession by R.P.'s own expert, Klein, that he was unable to state with any degree of confidence that R.P. would become able to function as a parent, as evidence that R.P. was unable to eliminate the harm facing his son. The judge was satisfied that after R.P.'s release from imprisonment, he spurned a good portion of the array of services DYFS offered him that were aimed at enabling him to become a better parent. The judge also found that no relatives identified by R.P. were suitable alternatives to termination of his parental rights.

Finally, the judge held that termination of R.P.'s parental rights would not do more harm than good in light of R.P.'s insubstantial bond with his son, which resulted from R.P.'s lengthy incarceration and his decision to stop visiting with his son. The judge also pointed to the child's significant bonded relationship with his foster mother who was willing to adopt him. In making the determination that termination of parental rights would not do more harm than good, the judge specifically focused on the likelihood that "the childcare task would devolve upon an unsuitable caretaker," were R.P.'s parental rights not severed.

E. Contentions of J.M.M. and R.P. on Appeal

On appeal, J.M.M. concedes that DYFS satisfied the first

and third prongs of N.J.S.A. 30:4C-15.1a. However, she maintains that DYFS failed to prove the other two: that she was unable or unwilling to eliminate the harm facing her children; and that termination of her parental rights will not do more harm than good. R.P., in turn, maintains that DYFS failed to satisfy any of the four prongs of the governing statute. He additionally contends that his due process rights were violated because he was not notified of the pendency of the Title 9 abuse and neglect proceedings. As a result of the lack of notification, he was not offered family preservation services during the pendency of those proceedings, which he argues adversely affected him during the later guardianship proceedings. Finally, both parents argue that the trial court's denial of their right to visitation during the pendency of the appeal has further compromised their rights.


It is well-established that parents have a constitutionally protected right to the care, custody and control of their children. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed. 2d 551, 558 (1972). In addition, this "fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982).

But a parent's constitutional right to maintain the parental relationship is not absolute. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). Indeed, it is well-settled that the State has a parens patriae duty and obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Accordingly, if the State can demonstrate by clear and convincing evidence, A.W., supra, 103 N.J. at 612, that a child's physical or mental health would be jeopardized by continuance of the parent-child relationship, it may petition the court for dissolution of parental rights. Id. at 600.

Pursuant to N.J.S.A. 30:4C-15.1a, DYFS can obtain a termination of parental rights on the grounds that the best interests of the children require this course if each of the following elements is proven by clear and convincing evidence:

(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 or permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) [DYFS] has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1a(1)-(4).]

The statute "prescribes an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999). "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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

"Appellate review of a trial court's decision to terminate parental rights is limited . . . ." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). The findings of the trial judge "are considered binding on appeal when supported by adequate, substantial, and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Therefore, we should not disturb the factual findings and legal conclusions of the trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963).

Having thoroughly reviewed the testimonial and documentary record, we are satisfied that DYFS established by clear and convincing evidence that J.M.M. has been unwilling or unable to alleviate the harm she has caused her children, and that termination of her parental rights to both of her sons will not do more harm than good. As to the younger son, his relationship with his foster mother provides him with far more emotional sustenance than does his relationship with J.M.M. Although DYFS did not offer testimony of a bonding evaluation between J.M.M. and her older son, we are satisfied, as was Judge Callahan, that the child's severe and prolonged psychiatric problems require parenting skills that vastly exceed J.M.M.'s limited capacity as a parent. Consequently, termination of her parental rights as to her older son will not do more harm than good despite the absence of a specific bonding evaluation.

As to R.P., we are satisfied that DYFS has established by clear and convincing evidence that his prolonged incarceration and inability to resolve his drug problem caused harm to his son, that he has been unwilling or unable to alleviate that harm, that DYFS made diligent efforts to reunify him with his son and to identify placements that would have avoided termination of his parental rights, and that termination of R.P.'s parental rights will not do more harm than good.

As to both J.M.M. and R.P., the judge's findings of fact are well-supported by the record. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The judge also properly applied the facts to the governing law. There is therefore no basis for this court to disturb the termination order as to either parent.


We next turn to R.P.'s claim that DYFS's failure to serve him with notice of the Title 9 proceedings unfairly impaired his ability to become a better parent and thereby avoid the ultimate termination of his parental rights. We agree with the trial court's rejection of this claim. R.P.'s contention that additional services, which may have been provided during the Title 9 proceedings, would have averted the ultimate adverse result, is based on nothing other than speculation. Moreover, we are at a loss to understand the specific services he maintains DYFS could have provided to him while incarcerated at the Essex County jail.


In light of our conclusion that termination of parental rights was supported by clear and convincing evidence, we see no need to address both parents' remaining argument that the trial court wrongly denied their motion for visitation pending appeal.*fn4


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