November 14, 2008
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
M.N., DEFENDANT-APPELLANT, AND L.S., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF N.D.N. AND N.N.N., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-20-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 14, 2008
Before Judges Sabatino and Simonelli.
The Division of Youth and Family Services (Division) brought this action, seeking the termination of the parental rights of defendants M.N., the biological father, and L.S., the biological mother, to their children, N.D.N. (Nancy)*fn1 , born March 19, 2001, and N.N.N. (Noreen), born January 26, 2004. On May 2, 2006, L.S. executed a voluntary identified surrender of her parental rights so that the children could be adopted by their maternal aunt and uncle, R.F. and M.F. (the foster parents). Following a non-jury trial, Judge Sokalski rendered a written decision and entered judgment in favor of the Division.
On appeal, M.N. contends that the judge failed to consider all of the evidence and improperly determined that DYFS satisfied the requirements of N.J.S.A. 30:4C-15.1a(1), (2) and (3).*fn2 We reject this contention and affirm.
The following facts are summarized from the record. Nancy and Noreen are medically fragile children who require specialized care and services and medical treatment for the rest of their lives. Nancy has developmental disabilities and is Hepatitis C positive. Noreen is legally blind, autistic, developmentally delayed and has perventicular leukomalacia, microcephaly and hypotonia. The children's medical conditions stem from L.S.'s drug use during pregnancy and their premature births.
The Division's involvement with L.S. began in 1984, when it received a referral indicating L.S.'s older children were not fed properly, were left unsupervised and L.S. was using drugs. The allegations were not substantiated.
The Division again became involved with L.S. in March 2001, when Nancy was born prematurely and L.S. tested positive for heroin and barbituates. Nancy was diagnosed as Hepatitis C positive. The Division remained involved with the family to ensure the child's safety due to M.N.'s failure to detect L.S.'s drug use.
The Division received another referral on November 15, 2001, indicating L.S. was abusing heroin and took Nancy with her to purchase drugs. The Division was unable to complete an investigation because L.S. moved with Nancy to Massachusetts.
The Division received another referral on November 16, 2002, indicating Nancy had scratches and scrapes on her face. Although abuse was not substantiated, the Division opened a case for supervision to monitor L.S.'s drug evaluation results. M.N. signed a case plan agreeing to provide a safe, drug-free environment for Nancy and to not leave the child unsupervised with L.S. M.N. was awarded temporary custody of Nancy on June 12, 2003.
The Division's involvement here stems from a referral on January 27, 2004, from St. Joseph's Regional Medical Center in Paterson indicating Noreen was born prematurely. The child and L.S. tested positive for heroin, and L.S. admitted using heroin three days prior to the birth. L.S. also had very little prenatal care.
At the time of this referral, M.N. still had custody of Nancy and he and the child lived with his sister. Following an investigation, the Division placed Noreen with M.N. He agreed to supervise visits between L.S. and the children and to not leave them alone with her. As a result of M.N.'s compliance and his agreement to continue supervising all contact between L.S. and the children, the case was closed on May 4, 2004. At the time, M.N. was living with another sister, who helped care for the children.
Shortly after her birth, Noreen began showing signs of developmental delays. Medical testing revealed she had multiple handicaps and required specialized care and services.*fn3 At approximately five months of age, Noreen began living with the foster parents.
On May 3, 2005, the Division received a referral indicating M.J.N. (Mary), was born prematurely to L.S., and both the child and L.S. tested positive for heroin. Mary also tested positive for Hepatitis C and is medically fragile. The Division obtained legal custody of Mary and placed her in the O'Neill Center, a specialized facility for medically fragile children going through withdrawal. Mary remained in that facility for approximately four months. She was eventually placed with the foster parents. M.N. refused to sign a case plan for this child.*fn4
On June 15, 2005, the Division received a referral indicating M.N. pinched Nancy's leg because she disrespected him, he used physical discipline toward the children and he physically and verbally abused L.S. At the time, M.N., L.S. and Nancy lived in the basement of the foster parents' home. Noreen was still living with the foster parents, who were solely caring for the child. Although M.N. admitted slapping and choking L.S. during an altercation, the Division did not substantiate physical abuse of Nancy. Nevertheless, M.N. signed a case plan agreeing to use non-violent discipline with the children and to use appropriate language when verbally reprimanding them.
On June 21, 2005, the court ordered M.N. to submit to psychological and substance abuse evaluations. The court also ordered L.S. to complete a substance abuse evaluation and drug treatment.
L.S. advised a Division caseworker that M.N. had supplied her with heroin and had left Nancy in her care when she was under the influence of drugs. Also, L.S.'s psychological evaluation revealed she continued using heroin, she had unsupervised contact with the children, there was significant domestic violence between her and M.N., and M.N. threatened to kill her if she left him.
On June 24, 2005, Ernesto Perdomo, Ph.D., conducted a psychological evaluation of M.N., a Peruvian national, in Spanish. Although the doctor found M.N. free of major psychiatric disorders and no risk to the children, he also found M.N. was depressed, immature, had dependency needs and was self-absorbed. The doctor recommended parenting skills training and individual therapy to ensure M.N. would not be overwhelmed by having to care for the children.
On July 6, 2005, Nancy told a Division caseworker M.N. and L.S. fought a lot, and it scared her. M.N. said several obscenities to L.S., and she thought M.N. was going to kill L.S.
On August 5, 2005, the Human Services Police escorted the Division caseworker assigned to the case when she served M.N. with court papers because he had previously threatened to kill her.*fn5
On August 29, 2005, the court granted legal custody of Nancy, Noreen and Mary to the Division. The Division placed all three children with the foster parents.*fn6 A case plan restrained M.N. and L.S. from the foster parents' home and provided M.N. weekly supervised visitation at the Division's office. M.N.'s attendance at visitations was inconsistent.
On October 5, 2005, the court ordered M.N. to attend counseling at Family Intervention Services (FIS) and to complete parenting skills training at Barnert Hospital's Center of Parent Education (COPE). M.N. failed to comply. His visitation was suspended until he complied.
During an evaluation of Nancy on October 20, 2005, she expressed her desire to live with M.N. and L.S. However, the child was very scared because she witnessed domestic violence between her parents. It was recommended that Nancy attend individual therapy to aid her in coping with the feelings of loss and separation from her parents and to address her witnessing the domestic violence.
At a hearing on March 29, 2006, M.N., represented by counsel, stipulated he medically neglected Nancy by failing "to seek routine medical care . . . the seeking of which may have prevented the child's Hepatitis C condition from worsening." The court again ordered M.N. to attend FIS and COPE, suspended visitation pending proof of compliance and restrained him from the foster parents' home. M.N.'s case at COPE was closed on May 16, 2006 for non-compliance.
The court held a permanency hearing on August 24, 2006, and concluded termination of parental rights followed by adoption by the foster parents was the appropriate plan for Nancy and Noreen. The court found M.N. had not adequately "addressed issues of parenting skills, domestic violence, and instability sufficient enough to provide care for his children who have special medical needs." The court also found M.N did not have adequate housing. It was not until October 3, 2006 that M.N. finally completed COPE. The Division filed a guardianship complaint shortly thereafter on November 8, 2006.
On March 1, 2007, M.N.'s expert, Paul F. Fulford, Ph.D., who is not bilingual, conducted a psychological evaluation of M.N. in English with the assistance of a "clerical person who is Spanish speaking [and] of the Spanish culture[.]"*fn7 M.N. was unemployed, physically disabled and living with his sister at the time of the evaluation.
Dr. Fulford attempted to administer the Spanish edition of the MMPI test to M.N., but determined the results were invalid due to contradictions caused by cultural factors. Thus, Dr. Fulford only conducted a mental status exam, which revealed M.N. was oriented to time, place and person, he understood the nature and purpose of the evaluation and there were no bizarre or inappropriate qualities noted in his behavior. During the exam, the doctor discovered M.N. had suffered a back injury in 2006 as the result of a motor vehicle accident, which prevented him from working full time. The doctor stated in his report the issue appeared to be whether M.N. could support and care for the children given his medical limitations, which were unknown to the doctor. The doctor said in his report:
If these injuries cause [M.N.] to be unemployable on a full time basis, and be unable to maintain an independent living arrangement, then serious questions would be raised about his ability to care for these children. If, however, his accident is disabling on a transitory basis, and he will recover and be able to return to work, then the question is when will this occur. Therefore, the issue of his ability to provide care for them and to provide shelter and housing and to be the primary caregiver is, to a great extent, determined by his physical condition. That being said, this report is preliminary, pending any medical evaluations which can confirm and quantify the nature of his disability, if any.
Dr. Fulford also conducted bonding evaluations between the children and M.N., and the children and the foster father.*fn8 He did not speak privately to Nancy and did not inquire about her preference. The doctor concluded the children were bonded to M.N. and to the foster father. He also concluded the children were bonded to each other and should not be separated. He opined at trial that to separate Noreen from Nancy "would be a great risk of . . . harm" to both children.*fn9
Dr. Fulford also opined at trial M.N. could be a good parent due to the absence of any psychiatric disorder, substance abuse problems or physical abuse and he could be a better parent with services. However, the doctor did not know Nancy is a special needs child, he did not receive follow-up medical information on M.N. and he had no specifics about M.N.'s ability to work. The doctor admitted M.N. did not know the children's daily routine and said M.N.'s plan for the children "was really iffy because it depended on whether he'd be able to get back to work." The doctor also admitted leaving a pre-school handicapped child in the unsupervised care of an addicted parent was "a serious mistake" and "a stepping away from a standard of safety[,]" and that missed visitation hurts a child.
Significantly, Dr. Fulford did not opine the children should return to M.N. Rather, he concluded the children should have "continued contact in some way with [M.N.] . . contact should not be ended . . . and [M.N.] should be given the opportunity to remain a significant part of their life."
On May 3, 2007, the Division's expert, Frank J. Dyer, Ph.D., who is bilingual but not Hispanic, conducted a bonding evaluation in Spanish between the children and the foster parents. M.N. was required to attend the bonding evaluation but refused to do so.
Dr. Dyer evaluated Nancy and found she was functioning at a low average level in language development and there are concerns with her self-help skills and social maturity. The doctor opined Nancy's overall level of adaptive behavior is mildly retarded as a result of her exposure to drugs in utero and her premature birth. The child also displays behavior problems in school including physical aggression toward other children. Dr. Dyer testified at trial:
[Nancy] is going to require a much greater degree of attention, monitoring, support and general assistance than would a normally endowed child. That the caretaker has to be vigilant that [Nancy's] mild intellectual handicaps don't place her in danger. The caretaker would have to be vigilant in terms of keeping this child current with her school work, the reinforcing at home, the special education assignments that the child receives in school and tasks of that nature.
This child requires a home environment that will supply her with vigilant monitoring, appropriate support and also it's going to require patience, understanding and attunement on the part of a caretaker, because this is a child who can present some behavioral problems and also run into some difficulties simply on the basis of her cognitive limitations . . . run into difficulties in mastering the practical tasks of day to day living. It's making messes and breaking things and problems of that nature. So a caretaker would have to have some degree of patience and attunement and be sufficiently supportive to deal with those problems that are related to the child's delayed adaptive behavior skills.
The doctor concluded the foster parents were meeting all of Nancy's needs.
During the bonding evaluation, Dr. Dyer observed Nancy was very responsive emotionally to her foster parents and was enthusiastic, happy and secure while interacting with them. In an individual interview with Nancy, she "expressed a very clear preference for remaining with her [foster parents]." The doctor testified Nancy has formed an attachment to her foster parents and does not want to leave them. He concluded in his report:
[I]f [Nancy] were removed from her [foster parents] and returned to [M.N.], she would suffer a traumatic loss that would be extremely disorganizing for her. Most likely results of such a loss would include regression in behavior, with an increase in aggression toward peers, and a regression in self-help skills and learning capacity.
The doctor recommended Nancy's adoption by her foster parents.
As to Noreen, Dr. Dyer found she "is a severely handicapped child who is going to require intensive special services for the rest of her life." At trial, the doctor testified:
[Noreen] is a child who is virtually helpless and requires the constant attentions of a caretaker. [Noreen] is unable to perform even the most simple tasks of daily living at a truly independent level. She requires assistance and supervision with everything she does.
And based on the severity of her condition, as documented in the various reports that I read that her prognosis for achieving a significantly higher level of adjustment in which she would need fewer supports is really nil. This child is going to remain handicapped for the rest of her life and she is never going to acquire anything even approximating an independent capacity to live on her own, to interact socially, to support herself or even to take care of her daily needs.
Dr. Dyer found Noreen "appears to be receiving excellent care in the home of her [foster parents]" and [the foster parents] are also very affectionate and loving toward her, to which the child responds to the extent that she can, given her autism and severe developmental delay." The doctor stated Noreen has formed an attachment to her foster parents, they have no reservations about adopting her and they are "strongly committed to her welfare and to helping her achieve what is possible for her to accomplish, given her limitations." Dr. Dyer concluded in his report:
If [Noreen] were to remain permanently with her [foster parents], . . . she would benefit from a loving home with mature, responsible caretakers who are very nurturing and affectionate toward her, and who are attuned to her special needs and love her unconditionally.
The doctor recommended Noreen's adoption by her foster parents.
On August 16, 2007, Dr. Dyer conducted a psychological evaluation of M.N. in Spanish. At the time of the evaluation, M.N. was working as a security guard*fn10 and had attended six weeks of parenting skills training. However, M.N. had not started counseling or therapy and was living in a room at his sister's house.
Dr. Dyer administered the Millon Clinical Multiaxial Inventory-III test, which indicated M.N. "responded in an extremely defensive manner to test questions" and "he is a rigid and conforming individual who tends to be somewhat socially marginal." Additionally, the protocol suggested M.N. is somewhat socially marginal, he is tangential or peripheral in terms of his social relationships and his thinking processes have an obscure dimension.
M.N.'s House-Tree-Person drawings were "suggestive of an individual whose thinking processes tend to be obscure and unrealistic at times." The overall quality of the drawings "was suggestive of a somewhat dependent and schizoid personality orientation." Dr. Dyer concluded "[M.N.'s] thinking processes "are somewhat loosely tied to reality and are a little bit off the mark," they "tend to be eccentric and unrealistic, which would very likely interfere with his parenting capacity." The doctor testified:
Most of the time in a casual encounter with [M.N.] one would not notice anything particularly abnormal about his thinking processes, but at other times his thought processes are slightly off. And there is a characteristic that causes me to have concern about [M.N.'s] capacity to consistently attend to the special needs of these two children, both of whom are going to require a great deal of attention and vigilant monitoring, support and supervision, no matter who their caretaker is.
The doctor concluded M.N. would not meet the children's needs, and they would be at great risk of harm and neglect if placed with him.
Dr. Dyer also conducted a bonding evaluation between M.N. and the children. He observed M.N. was very affectionate and appropriate with Noreen, gave Noreen all of his attention and "virtually ignored [Nancy] for the entire session." The doctor noted M.N.'s ignoring of Nancy displayed his indifference to or rejection of her, which the doctor found very troubling. As to Nancy, the doctor concluded in his report
It remains my opinion to a reasonable degree of psychological certainty that [Nancy's] present caretakers, . . . are this child's central parental love objects and identification figures. If this child were removed from their custody and reunified with her father, she would suffer a devastating loss that would most likely manifest itself in impaired self-esteem, impaired basic trust, and an impaired capacity for forming new attachments. [M.N.'s] behavior toward this child during the present bonding assessment very strongly indicates that he would be unlikely to respond to her distress in an attuned manner that would result in any mitigation of the harm associated with her loss of her attachment figures.
As to Noreen, Dr. Dyer found although she was emotionally responsive to M.N., his "documented history of medically neglecting [Nancy] . . . coupled with [his] current denial of any such neglect . . . raises serious questions about his capability to meet the needs of an extremely limited and vulnerable special-needs child." The doctor again recommended the children's adoption by the foster parents.
Because M.N. does not challenge Judge Sokalski's decision as to N.J.S.A. 30:4C-15.1a(4) (termination of parental right will not do more harm than good), we focus on the remaining prongs of the statute. At the conclusion of the trial, the judge rendered a written decision where he made extensive factual findings, applied those findings to N.J.S.A. 30:4C-15.1a(1), (2) and (3) and applied the clear and convincing proof standard.
Our review of a trial judge's findings is a limited one. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). We will not "engage in an independent assessment of the evidence as if [we] were the court of first instance." Ibid. (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We will reverse only if we are convinced the trial judge's factual findings and legal conclusions "are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Fagliarone, supra, 78 N.J. Super. at 155). We must defer to the trial judge's findings of fact if supported by clear and convincing evidence in the record. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993).
Given the special jurisdiction and expertise of a family court judge, we accord deference to that judge's fact-finding and the conclusions which flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (1998); Div. of Youth & Family Servs. v. M.M., 382 N.J. Super. 264, 271-72 (App. Div. 2006) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), rev'd on other grounds, 189 N.J. 261 (2007). We also afford deferential respect to a family judge's credibility determinations. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (citing Rova Farms, supra, 65 N.J. at 484). However, a "trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
After careful review, we conclude the record contains clear and convincing evidence supporting Judge Sokalski's findings. We also conclude the judge applied the correct legal standards. We are satisfied the children's health and development were and will continue to be endangered by their relationship with M.N., he is unable to provide a safe and stable home for them, separating them from their foster parents will cause serious and enduring emotional and psychological harm and the Division made reasonable efforts to provide services to M.N. M.N. medically neglected Nancy, he left the children in the unsupervised care of their drug-addicted mother, he exposed Nancy to domestic violence, he inconsistently attended visits with Nancy, he did not timely attend parenting skills training until the last minute and he never completed counseling.
Also, M.N. has no suitable housing or plan for the children, he is unable to provide for their special needs and he provided no alternative to adoption except kinship legal guardianship. However, kinship legal guardianship is not appropriate where, such as here, adoption is feasible and likely. N.J.S.A. 3B:12A-1c.
We also cannot ignore the serious and enduring harm the children will suffer if separated from their foster parents. Noreen has been with her foster parents since five months of age and Nancy has been with them since August 2005. The children receive the specialized care they require and the safety, stability and permanency they deserve. The children's best interests require that they remain in the permanent, safe, and stable home of their foster parents and that M.N.'s parental rights be severed. In re Guardianship of K.L.F., 129 N.J. 32, 43-44 (1992); N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 110 (App. Div.), certif. denied, 180 N.J. 456 (2004).