On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-53-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and LeWinn.
In these consolidated appeals, defendants S.T. and D.T. appeal from an order entered on November 27, 2007 terminating their parental rights to four children. S.T. is the biological mother of C.T., A.T. and D.T., Jr., and the step-mother of T.T. D.T. is the biological father of T.T., C.T. and A.T. He was originally thought to be the biological father of D.T., Jr., because his name was on the child's birth certificate. During the course of the litigation, however, paternity tests ruled him out as the child's father.
We will summarize the facts most relevant to these appeals from the very extensive record before us. The New Jersey Division of Youth and Family Services (DYFS) first became involved with the family in August 2002 when a referral was made about then-four-year-old T.T. because her step-mother hit her when she would not stop singing. DYFS substantiated abuse and placed the child with her paternal grandmother. S.T. was only permitted to have supervised contact with the child. DYFS continued supervision of the family and provided assistance with housing and medical care. A case plan was developed, which required both parents to attend counseling for domestic violence and anger management.
In April 2004, DYFS became aware of domestic violence between the parents. The father was arrested and a domestic violence restraining order was entered against him. The mother was referred to a battered women's shelter, but the shelter refused her admission because she had precipitated the violence.
In May 2005, it was reported that S.T. was a "drug addict" and had left the children with other addicts while she partied. She subsequently failed to attend a drug screening. On May 12, 2005, T.T. reported that she had been beaten by S.T. At about the same time, D.T. reported -- and S.T. confirmed -- another incident of domestic violence between them. D.T. left the marital home and went to live at his mother's home with T.T. DYFS again substantiated abuse of T.T. by S.T.
By July 2005, DYFS completed an emergency removal of all the children from the home because of continued abuse and neglect. After hearings, an order was entered on November 7, 2005 finding that DYFS had demonstrated by a preponderance of the evidence that the children had been abused and neglected and left in the care of S.T.'s nineteen-year-old brother who was unable to manage them, particularly the child who required nebulizer treatments.
T.T. remained in the care of her paternal grandmother until February 2006, when the grandmother became too ill to care for the child. The child was then placed with her siblings, C.T. and A.T., in the care of their paternal aunt, W.T.*fn1 In September 2006, however, DYFS received a referral alleging that the aunt disciplined the children by hitting them with a belt. DYFS then implemented a plan in which the aunt was prohibited from using any type of physical punishment on the children and was instructed to use "time-outs" to discipline them.
In October 2006, T.T. again reported that her step-mother abused her by burning her face and arm with a hot curling iron. This incident occurred on the first unsupervised overnight visit with the child after a lengthy period of supervised visits. DYFS substantiated these allegations. The parents were thereafter permitted only supervised visitation with the child. The supervision was provided by the children's paternal aunt, W.T.
Meanwhile, D.T.'s three children were still in the care and custody of their paternal aunt. In December 2006, the aunt reported that T.T. was out of control and had smashed her brother's head into a coffee table. During a screening interview, T.T. said that she was hearing voices and seeing things. She was subsequently admitted to the University of Medicine and Dentistry hospital (UMDNJ) for evaluation and was diagnosed with attention-deficit hyperactivity disorder (ADHD), for which Ritalin was prescribed.
In January 2007, Alan J. Lee, Psy.D., a licensed psychologist, undertook bonding evaluations on behalf of DYFS for each of the four children and their parents and paternal aunt. He reported that T.T., then eight years old, had "some degree of attachment and bonding" to her father, and that it remains equivocal whether [T.T.] would suffer severe, enduring or irreparable psychological harm if her relationship with the birth father was permanently ended. Any emotional detriment might also be mitigated by counseling and treatment services, and [it] would appear that the issue of child welfare and child safety appears to be far more paramount and compelling. As such, assuming the birth parents and step-mother are not able to resume independent care of the minor child, other permanency planning for [T.T.] besides reunification with those adults will be supported.
With respect to T.T. and her step-mother, Dr. Lee reported that during the bonding evaluation session, there was no physical exchange or hug between S.T. and the child. Dr. Lee stated that "[w]hile the child clearly recognizes the stepmother . . . there are some concerns of the nature of the relationship. The child appeared to enjoy many of the interactions between herself and the step-mother, but the stepmother appeared to be often detached and apathetic towards . . . the child."
During T.T.'s bonding evaluation with her aunt, the two of them played "UNO." The aunt "kept teaching the child about the game and the child seemed engaged in the activity." Dr. Lee reported that the child "expressed the desire to continue living" with her aunt but that it was "equivocal" whether the child would be permanently harmed if that relationship ended.
A.T. was three years and eleven months old when the bonding evaluations between her parents and paternal aunt occurred in January 2007. Dr. Lee noted that the child had been removed from her parents' care in July 2005. With respect to her father, the child recognized him and he hugged her when he came into the room. The child referred to D.T. as "daddy" and they played together for a while. When the father left the room, however, the child "was able to separate with no acute distress." Dr. Lee concluded that "[t]here remains a low risk or likelihood of any kind of severe, enduring or irreparable psychological harm to the minor child if her relationship with the father was permanently ended."
In A.T.'s bonding evaluation with her mother, Dr. Lee reported that there was no hug, kiss or physical exchange of affection when S.T. came into or left the room. In Dr. Lee's opinion, the child "does not appear to have certain recognition of her birth mother, and has now for a protracted period not had to rely on her birth mother for primary care. She does not appear to have formed a significant or lasting attachment or relationship or psychological bond with her birth mother." In his opinion, there was a "relatively low risk of any kind of significant, enduring or irreparable psychological harm to the minor child if her relationship with her birth mother was permanently ended."
A.T. was also evaluated with respect to her paternal aunt, who had been her caregiver for about two months at the time. Dr. Lee noted that "[t]he child appeared to be responsive to [her aunt and] . . . . reached for [her aunt] and wrapped her right arm around [her aunt's] neck and kissed her on the left cheek." He observed that the child "seems to enjoy many aspects of her interactions and relationships with [her aunt]."
C.T. was five years old at the time of his bonding evaluation in January 2007 and was residing with his paternal aunt and siblings at the time. The child indicated that he enjoys living with his aunt. There was no hug or physical exchange between C.T. and his father, and Dr. Lee noted that "[w]hile the child certainly recognizes his birth father and seems to enjoy some aspects of their relationship, the strength of their relationship seems to be a bit equivocal and his attachment with his father does not appear to be remarkably strong." He further noted that "[t]he child's relationship with his father appears to be at times anxiety provoking and ambivalent. There does not appear [to be] compelling evidence of any kind of significant and positive psychological attachment or bond."
C.T. was then evaluated with his mother. Again, there was no physical hugging or affection between mother and child when she entered or left the room. During the observation, C.T. found a deck of cards and asked his mother to play "UNO" with him.
While they played the game, they playfully accused each other of cheating. Dr. Lee reported that "[t]he child seems to have some recognition of his mother, although their relationship does not appear to be remarkably strong."
C.T. was also evaluated with respect to his paternal aunt. Dr. Lee noted that the aunt "was rather animated," and that "the child clearly appears to enjoy some aspects of interacting with [her]."
D.T., Jr., was two and one-half years old at the time of his bonding evaluation in March 2007. He had been in foster care under DYFS supervision for nineteen months by that time. During the first bonding session with D.T., the child fell asleep in his step-father's arms. A second session was scheduled and this time, the child became upset about fifteen minutes into the session, calling for "mommy," referring to the foster mother. The child became inconsolable and the foster mother was brought into the room to calm him down. She remained in the room and the child "clearly appeared clingy . . . towards her." When the foster mother asked the child to give the step-father a hug, he refused. Dr. Lee reported that "[t]he child does not appear to readily recognize the step-father . . . and does not appear to have formed a significant or positive relationship or attachment or bond with him." He determined that "there is a low likelihood of any kind of significant, enduring or irreparable harm that might result from termination of [the] relationship between the child . . . and the step-father."
D.T., Jr., was then evaluated with respect to his foster parents. Dr. Lee reported that the child "appears to relate very well with the foster father, and has apparently formed a significant relationship and psychological attachment and bond with [him]. At this point, to terminate or permanently end a relationship between the child . . . and foster father . . . would have a significant likelihood of resulting in severe, enduring and irreparable psychological harm to this minor child." With respect to the foster mother, Dr. Lee reported that
[t]he child has relied heavily on [her] and this household for a very protracted period of his life, totaling more than half of his life and through some very formative stages of his life. The child has formed a very positive and significant relationship, psychological attachment and psychological bond with [the foster mother]. To terminate this significant bond between [D.T., Jr.,] and [the foster mother] would have a significant likelihood of resulting in severe, enduring and irreparable psychological harm on the minor child.
Dr. Lee evaluated S.T. individually in June 2007. He found that her "overall cognitive and intellectual functioning appears to be reasonably adequate and free of severe overall deficits or disease." With respect to her personality functioning, however, his principal diagnosis was personality disorder, NOS, with narcissistic, avoidant, paranoid and antisocial features. He noted that she is "lacking in personal insight or awareness," and is "an emotionally and behaviorally reactive and potentially explosive individual who seems to have notable difficulty containing or controlling her emotional and behavioral displays." He found that she "seems to maintain a heightened level of anger and hostility that is often times manifested through her irritability and lability. She tends to be easily confused and disorganized by the presence of strong affects and emotions, and can be quite explosive and even aggressive when she feels angered." He indicated that there have been "repeated concerns . . . . surrounding inappropriate supervision of the children and her reported aggression and abuse of [T.T.], and . . . her self-admitted history of using physical and corporal punishment." Dr. Lee concluded that "[d]espite the passage of more than two years since the children's placement, and efforts for various services and rehabilitation, there remain significant concerns about [S.T.] being an independent caregiver to a minor child." He recommended that "[a]ny contact that she might have with the . . . children should be supervised and preferably in a public or professional environment."
In October 2007, S.T. was evaluated by Jesse Whitehead, Jr., Psy.D., a clinical psychologist who testified on her behalf. Dr. Whitehead found that S.T.'s overall cognitive functioning appeared to be "within normal limits," but the Child Abuse Potential Inventory was "corrupted as a result of an invalid 'Faking Good' index." Dr. Whitehead concluded, "with a reasonable degree of psychological certainty, that [S.T.] projects attitudes congruent with positive parenting." He noted, however, that S.T. was not yet ready for "assumption of the role of individual caregiver to her two children."*fn2 He recommended "[c]ognitive reorientation methods geared to reframing assumptions about herself and the expectations of others [that] may be used gradually and with discretion . . . to accomplish the purpose of altering [her] dysfunctional beliefs." He further recommended continued involvement in anger management training to assist her "in controlling many of her negative thoughts and feelings which may directly influence unacceptable behavior." He recommended that visitation "be maintained in a supervisory mode until it [is] determined that her level of readiness for unsupervised and extended periods with her children is demonstrated." Moreover, Dr. Whitehead found no indication that S.T. should be reunited with her step-daughter T.T. and further indicated that DYFS should continue monitoring and supervising her.
D.T. was evaluated by David F. Bogacki, Ph.D., a board-certified clinical psychologist, who testified on his behalf. Dr. Bogacki reviewed a substantial number of documents, including all of the bonding reports done by Dr. Lee. Dr. Bogacki estimated that D.T.'s "intellectual functioning was within the Average range without evidence of a learning disability or cognitive impairment." He noted that D.T. had a history of antisocial conduct. He diagnosed D.T. as suffering from antisocial and narcissistic personality traits. He further noted that D.T.'s polysubstance abuse is "in [f]ull [s]ustained [r]emission."
Dr. Bogacki conducted an independent bonding evaluation between D.T. and his three biological children, A.T., C.T. and T.T., who were by then four, six and nine, respectively. After observing D.T. with all three children together, Dr. Bogacki noted that "[t]here is evidence of emotional attachment to all three children. If parental rights were terminated and the children were not able to see [D.T.] any longer, the children would clearly ...