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Division of Youth and Family Services v. A.I.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 18, 2009

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
A.I., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF J.G.M., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-111-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 17, 2009

Before Judges Wefing, Grall and LeWinn.

A.I. is the natural mother of J.G.M., a nine-year-old boy. She appeals from the January 29, 2007 judgment of the Family Part terminating her parental rights,*fn1 and from the October 9, 2008 order affirming termination following our remand.

The Division of Youth and Family Services (DYFS) and the child's Law Guardian contend that grounds for termination have been established by clear and convincing evidence under each of the four prongs of the best interests standard set forth in N.J.S.A. 30:4C-15.1(a). Our review of the record and the arguments presented leads us to conclude that no grounds exist on which to disturb Judge Salvatore Bovino's factual findings or legal conclusions. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Accordingly, we affirm.

I.

The protracted and tortured history of this matter may be summarized as follows. A.I. is also the mother of three daughters: C.I., born in July 1990; E.M., born in September, 1991; and M.P., born in January, 1995; and another son, S.R., born in December, 2005. A.I. first came to the attention of DYFS in April 1999, upon reports of physical abuse of her three daughters. DYFS determined those reports to be "not substantiated," but defendant did acknowledge that she slapped the children. In September 1999, A.I.'s sister reported to DYFS that defendant "punches, pinches and pulls the girls' hair[,]" resulting in bruising of the children. Defendant admitted spanking the girls and hitting them with a belt on occasion. The girls were inconsistent in their accounts and admitted that they physically fought with each other. DYFS again determined that abuse allegations were unsubstantiated.

J.M. reported that during 1999-2000, he saw defendant acting in a very violent manner with the girls; she also physically attacked him, leading him to obtain a domestic violence restraining order against her.

In February 2001, DYFS was alerted by the police to a caller who claimed that defendant was beating her children. DYFS determined that although M.P. had a black eye and E.M. had scratches on her face, the injuries were accidental.

DYFS continued to receive referrals of abuse from 2001 into 2004. In June 2004, an eyewitness reported that defendant "unmercifully" beat E.M. after learning that the child was being retained in her grade at school; defendant stated to E.M., "I'm going to beat your face unrecognizably." A DYFS caseworker interviewed E.M. who "gave the impression that she needed to protect her mother and family" and repeatedly stated that her mother had not hit her.

As a result of this incident, however, defendant was arrested for endangering the welfare of a child. Defendant signed a consent to place the children for fifteen days with her mother, M.B. At the end of that period, all of the children were returned to defendant.

In July 2004, defendant attended a DYFS-referred psychological evaluation with Dr. Leslie Trott, who concluded that defendant was "cognitively competent" and did not suffer from any psychological problems; the doctor found that defendant was stressed by the demands of being a single mother, but there was no evidence she was a threat to the children.

On March 24, 2005, then fourteen-year-old C.I. called the police claiming that defendant became angry when C.I. did not put the vacuum cleaner away fast enough and bit her nose and shoulder. E.M. told the responding caseworker that she witnessed her mother bite C.I. and that defendant had bitten her as well.

Defendant's version of this incident was that C.I. and E.M. had been fighting. She refused to accept homemaker services and agreed to have the children placed out of her home saying, "[M]aybe it would teach them a lesson[.]" On this occasion, abuse was substantiated; the children were removed on an emergent basis and once again placed in the custody of their maternal grandmother. As a result of this incident, defendant pled guilty to fourth-degree child abuse for inflicting unnecessary corporal punishment on C.I.; she received a sentence of probation for one year.

On March 29, 2005, DYFS filed a complaint for custody, care and supervision of C.I., E.M., M.P. and J.G.M. The children were removed from their grandmother's home on June 27, 2005, when the grandmother asked C.I. and E.M. to leave after an argument and the police reported they had been to the home twice due to the girls' fights with their grandmother. DYFS investigated and heard allegations from C.I. and E.M. that their grandmother's husband had sexually molested them years earlier. The girls said that they informed both defendant and their grandmother of this.

Defendant admitted that the girls had told her about the abuse and that she had confronted her mother who "begged" her not to report it. The grandmother's husband eventually pled guilty to two counts of second-degree sexual assault.

DYFS placed M.P. with her biological father; the other three children were placed with a family friend, M.R. By July 21, 2005, however, M.R. reported that she could no longer handle C.I. and E.M., and the girls were removed from M.R.'s home and placed in different foster homes until December 2005 when they were placed with another friend, M.E.

J.G.M. remained with M.R until November 3, 2005, when M.R. violated DYFS policy by spanking him. J.G.M. was then placed with the sister of M.E.

Shortly after the children's removal from their grandmother's home in July 2005, defendant underwent a psychological evaluation by Dr. Gregory Gambone at DYFS's request, to assess her risk as a child abuser. Although Dr. Gambone found defendant "psychologically stable," he opined that she had "limited control" over her anger, which led to "impulsive aggression, and that defendant tended to blame others for her circumstances. Dr. Gambone diagnosed defendant with an adjustment disorder with "mixed disturbance of emotions and conduct," and recommended a psychiatric evaluation, anger management training, parenting training, family therapy and individual counseling.

In November 2005, defendant underwent a psychiatric evaluation with Dr. Devendra Kurani. Dr. Kurani concluded that defendant suffered from an adjustment disorder and "could benefit from psychotherapy," but did not require medication. At this time, defendant began family and individual counseling as well as anger management classes; she also completed a parenting class.

Defendant gave birth to another child, S.R., in December 2005. On January 4, 2006, the court granted DYFS's order to show cause seeking to place S.R. in the custody of his natural father; the court then dismissed S.R. and his father from the pending litigation.

In March 2006, DYFS arranged for a psychological evaluation of J.G.M. after it was reported that he had "inappropriately touch[ed]" another child. The evaluation was conducted by Dr. Manual Iser, who determined that J.G.M. had conflicted feelings about his mother and believed that she had abandoned him. Dr. Iser recommended short-term individual therapy for J.G.M. to focus on issues of anger related to his family.

In May 2006, Dr. Frank Dyer performed a psychological evaluation of defendant at the request of DYFS. Based upon his interview and psychological testing, Dr. Dyer opined that defendant was "a histrionic individual who is entrenched in a position of rigid denial in regard to any personal shortcomings that may be in need of therapeutic attention." Dr. Dyer described defendant as presenting in a "defensive manner," and as "an emotionally volatile individual who tends to be superficially charming, adept at engaging others to meet her need of the moment, and extremely demanding and manipulative."

Dr. Dyer believed that defendant was so concerned with protecting her children from repeating the mistakes she had made (such as becoming pregnant at the age of fourteen), that she was extremely rigid with the children, which in turn drove the girls to act out. Additionally, defendant's failure to acknowledge any wrongdoing that may have negatively affected her children (such as her awareness of the sexual abuse of C.I. and E.M. and her failure to protect the girls based on that knowledge) indicated that the counseling defendant had undergone had failed to assist her in changing her abusive behavior. Dr. Dyer concluded that defendant continued to present a danger to her children and should not be reunited with them.

On June 28, 2006, the trial judge signed a permanency order approving a plan of termination of parental rights for M.P. and J.G.M. because defendant "did not have a safe and suitable home." DYFS did not seek termination of defendant's parental rights to C.I. and E.M. at that time; rather, DYFS sought to "explore placement." On that same date M.P. and J.G.M. were removed from M.E.'s home and placed in separate foster homes.

In the summer of 2006, defendant's brother, Ca.I., who had recently returned to the area, leased an apartment in the same building as defendant; C.I. and E.M. moved in with him. Ca.I. offered to be a resource for permanent placement for M.P. and J.G.M.; towards that end, DYFS had him undergo psychological and bonding evaluations with Dr. Dyer. Ca.I. understood that if he obtained custody of the children, it would be on the condition that defendant have no unsupervised contact with them.

Dr. Dyer had a mixed opinion as to the feasibility of placing the children with Ca.I. While Dr. Dyer concluded that Ca.I. was "a reasonably mature and well-functioning adult" who could lend "stability to the situation," nonetheless, the doctor was concerned that Ca.I. would permit extensive unsupervised contact between the children and defendant. Therefore, Dr. Dyer recommended that Ca.I. not be considered as a resource for either J.G.M. or M.P.

On August 15, 2006, DYFS filed an order to show cause and complaint for guardianship seeking to terminate the parental rights of defendant and J.P. to their daughter M.P. and of defendant and J.M. to their son, J.G.M. M.P. was eventually dismissed from the litigation and was placed in the legal and physical custody of defendant, with supervision to continue through DYFS.

On September 20, 2006, C.I. and E.M. were reunited with defendant over DYFS's objection. Shortly after her return to her mother's custody, C.I. was suspended from school several times and ran away from home. E.M. was also suspended from school twice. C.I. was arrested for assaulting two principals. The two girls frequently had physical fights with each other that included biting. DYFS caseworker Christina Huggins gave defendant a phone number for a behavioral program called Value Options, which would provide a needs assessment in the home; defendant, however, never called the program.

In October 2006, Dr. Dyer performed a bonding evaluation of defendant with her children. After interviewing defendant and observing her interactions with C.I., E.M. and J.G.M., Dr. Dyer found that defendant had benefited from therapy and was attempting to adopt a non-abusive style of parental discipline. He concluded that defendant was J.G.M.'s "sole attachment figure," and that if the mother-son relationship were to be completely severed, "it would result in a significant emotional loss for [J.G.M.]."

Defendant's visitation with J.G.M. was to be supervised in the apartment of her brother Ca.I. On January 12, 2007, DYFS received a referral that J.G.M. was being left alone with his mother during weekend visits. DYFS caseworker Regina Simmons responded to defendant's address; defendant however would not allow her into her home. Simmons returned three hours later and saw C.I., M.P. and J.G.M. there. When Simmons attempted to interview the children, defendant became "nasty and curt."

When Simmons tried to speak with J.G.M., M.P. spoke over him and displayed a "nasty" attitude. Simmons then took J.G.M. to her car where he told her that he had not been in Ca.I.'s apartment since before Thanksgiving and that he had been left alone with his mother in the past. J.G.M. also told Simmons that his baby brother, S.R. stayed in a "secret room behind the garage that no one" was to know about.

Simmons called for police assistance, re-entered defendant's home and told her the children were to be returned to their foster homes. Simmons inquired about S.R. and defendant denied that he was there. However, as Simmons began to search the home, she observed E.M. running down the street with the baby.*fn2

J.G.M. was placed in a foster home, where he continued to reside at the time of the guardianship trial that began on January 17, 2007. At that time, it was DYFS's plan to have J.G.M. adopted by defendant's half brother Ma.D. and his wife, B.D. Toward that end, DYFS facilitated bi-weekly visitation between J.G.M. and the couple and initiated an interstate home study, as they lived in Pennsylvania.

At trial, Dr. Dyer testified that defendant had some strengths, but also "glaring areas of weakness." He described defendant as intelligent, articulate and poised, but also as shallow and as having a histrionic personality. Additionally, defendant was emotionally volatile, demanding, intolerant, and acted out physically if threatened. Dr. Dyer opined that defendant had traumatized all of her children.

When Dr. Dyer first evaluated defendant in May 2006, she was resisting DYFS's efforts to assist her; by October, however, defendant was more accepting of services and attempted to work with her counselor toward a less punitive style of parenting. However, because defendant continued to blame the children for many of her problems, Dr. Dyer concluded that her prognosis for change was poor.

Regarding J.G.M., Dr. Dyer opined that the boy was unfocused, had many aggressive fantasies, and was preoccupied with death, monsters, blood and biting. Dr. Dyer opined that if J.G.M. were placed with defendant, he might act out on his aggressive feelings toward her.

Dr. Dyer saw a risk of abuse based upon J.G.M.'s hyperactive behaviors and his aggression towards his mother. He regarded J.G.M. as a "trying" child for any caretaker, one who required an "unusually high degree of parental competence." J.G.M. was confused as to the identity of a central parental love object and authority. He was at "enormous risk" for severe emotional and behavior[al] problems."

Dr. Dyer acknowledged that J.G.M. had an attachment to his mother. However, the doctor reiterated that J.G.M.'s physical safety would be at risk and that defendant was not capable of offering him parental competence, maturity, clear boundaries, rules or limits. Moreover, Dr. Dyer opined, if reunification with defendant proved unsuccessful, J.G.M. would be even further traumatized.

While Dr. Dyer acknowledged that J.G.M. would suffer "a significant emotional loss" if he lost all contact with his mother, nonetheless that loss would outweighed by the benefits of a stable, safe and nurturing placement that offered permanence. Notwithstanding J.G.M.'s strong emotional ties to his sisters, Dr. Dyer opined that the need for permanency "far overshadows" any potential benefit of preserving those sibling bonds.

Defendant presented the testimony of a psychologist, Dr. Antonio Burr, who had evaluated her in December 2006. Dr. Burr described defendant as a "personable, articulate" woman who was aware of her past parenting issues. He acknowledged that in the past, defendant was very "rigid" with her children and "a little bit tyrannical." Since the children had been removed from her custody, however, Dr. Burr believed that defendant had developed a better insight and understanding of more effective ways of parenting. Based on the tests he administered, Dr. Burr found that defendant had no psychological disorders and there was "no fundamental impediment to defendant's being a parent." Dr. Burr concluded that there was "no compelling reason from a clinical point of view" that a termination of parental rights would best serve the children. Dr. Burr conceded, however, that his opinions were based on information that did not extend beyond June 2006; the doctor was unaware of the troubles C.I. and E.M. had with each other, and he had never observed defendant interact with J.G.M.

At the conclusion of trial, Judge Bovino rendered an oral decision in which he reviewed the evidence and concluded that defendant's and J.M.'s parental rights to J.G.M. should be terminated. The judge signed a judgment of guardianship on January 29, 2007.

During the trial, J.G.M. was placed with Ma.D. and B.D. defendant's half-brother and his wife. In June 2007, however, the child was removed and placed in a foster home when B.D., unexpectedly changed her mind about adopting him. On the date of J.G.M.'s removal, Dr. Dyer performed a psychological evaluation of the child in order to assess his "current personality functioning [and] need for services, if any," and to form an opinion "as to [the] appropriate case goal." Dr. Dyer interviewed J.G.M., who was nearly seven years old at the time. The child told Dr. Dyer that he did not know why he was leaving his aunt and uncle but that he was "going to see if [he] like[d] someone," meaning a new foster family. J.G.M. did not appear upset by his removal from the home of his aunt and uncle.

Although Dr. Dyer regarded J.G.M. as more "organized psychologically" than in the past, after administering tests the doctor concluded that J.G.M. was "suffering from depressive states, if not an actual mild clinical depression." J.G.M. expressed feelings that he was "of little value to anyone" and he yearned "for a stable parent figure who will not frighten, frustrate, disappoint[] or reject him." Dr. Dyer opined that, due to J.G.M.'s multiple placements, he was "in danger of developing a pattern of indiscriminate shallow connections to new adults with a reduced capacity to become deeply attached . . . ."

Dr. Dyer found that J.G.M. had a continuing attachment to defendant and that if "placement recommendations were dictated by attachment alone, then clearly this boy should be returned to his birthmother [sic]." In light of his opinion that defendant presented "an unacceptably high degree of risk in regard to child abuse," however, Dr. Dyer concluded that it would not be in J.G.M.'s best interest to be placed with his mother, especially in light of his numerous emotional issues. Dr. Dyer concluded that the best plan for J.G.M. would be "select home adoption." Dr. Dyer further recommended that J.G.M. have counseling and that the child not visit with defendant pending the outcome of her appeal.*fn3

In July 2007, in the wake of the changes in J.G.M.'s placement, defendant filed a motion pursuant to Rule 4:50 for relief from the termination judgment. Defendant simultaneously filed a motion in this court to stay appellate proceedings and to remand the matter for further proceedings in the Family Part. By order of July 25, 2007, we remanded for further proceedings given the change in circumstances; we did not retain jurisdiction.

On September 19, 2007, Judge Bovino heard argument on defendant's motion; defendant did not testify or offer any additional evidence. DYFS, however, submitted three additional documents: June 2007 contact sheets; a report from Dr. Dyer dated July 17, 2007; and a report by defendant's therapist, Dr. Charles Daly, dated June 15, 2007.

Judge Bovino denied defendant's motion and continued the suspension of her visitation with J.G.M. The judge permitted defendant to submit supplemental applications if she so chose. Defendant appealed this decision on September 19, 2007.

In February 2008, because J.G.M. was then living with a foster family who did not wish to adopt him, Dr. Dyer performed another evaluation of the child at the request of DYFS. Dr. Dyer concluded that J.G.M. was an "emotionally immature child" who suffered from sadness that, at times, extended into clinical depression. Dr. Dyer found J.G.M. to be "extremely needy emotionally" and noted that the child "yearned for reunification with his birthmother [sic] and sisters."

Dr. Dyer believed that J.G.M. was at risk for "developing an extremely flawed self-concept centering around the idea that he is intrinsically unlikable, unlovable, and bad."

Notwithstanding J.G.M.'s strong attachment to defendant and his sisters, Dr. Dyer was concerned that J.G.M.'s behavioral problems would "trigger" inappropriate disciplinary responses from defendant. Therefore, Dr. Dyer maintained his recommendation that the most appropriate placement plan was adoption; he opined that J.G.M. was "still capable of forming an attachment to the right set of adoptive parents."

On June 20, 2008, J.G.M. was placed in a pre-adoptive home. The Law Guardian thereupon moved for a second remand from this court which was granted on July 11, 2008.

Judge Bovino held a case management conference on August 28, 2008 and determined that the Law Guardian had the obligation to show "a significant change of circumstance" if he were to change his decision. The judge permitted defendant to supplement the record if she so wished.

On October 9, 2008, Judge Bovino heard argument from the Law Guardian that J.G.M. should be adopted by his current foster family. Over defendant's objection, the Law Guardian moved into evidence a report from a psychologist, Dr. Alice Nadelman, dated October 7, 2008. Dr. Nadelman had evaluated J.G.M. on September 17, 2008; the child was then eight years old. This evaluation was done at the request of the Law Guardian and with the consent of DYFS.

Dr. Nadelman's report contained J.G.M.'s statements that he wanted to be adopted by his present foster parents, and that he was happy he would no longer have to change schools. When J.G.M. was asked about his biological family, Dr. Nadelman reported that the child said he felt "a little safer, a little happy and a little sad about not living with his biological mother" and sisters.

Dr. Nadelman asked J.G.M. to name three wishes; the child responded that he: (1) wanted to erase his memory, especially of when he was taken away from his mother; (2) wanted to be a mad scientist; and (3) wanted the adoption to be over so it would be "just me with my parents." Based upon psychological testing, Dr. Nadelman concluded that, while J.G.M. was not depressed, he showed symptoms of post-traumatic stress. Dr. Nadelman also found evidence of "inner distress," from J.G.M.'s stories about the deaths of parents who leave children on their own and unprotected.

Dr. Nadelman's report also contained her interview with J.G.M.'s foster parents who expressed an understanding of his emotional problems and their commitment to parenting him. Dr. Nadelman concluded that J.G.M. had "reached some resolution" about his separation from his biological family, was sad about being separated from his sisters, expressed only frightening memories about his mother and stated that he did not feel safe with her. Dr. Nadelman opined that J.G.M. had the "capacity for developing new attachments[,]" and his greatest need was "the security and permanence of adoption as soon as possible . . . ."

On October 9, 2008, Judge Bovino reaffirmed the termination of defendant's parental rights and signed an order to that effect. Defendant has appealed that decision as well.

II.

On appeal, defendant raises the following contentions for our consideration:

POINT I.

THE TRIAL COURT ERRED IN RULING THAT DEFENDANT'S PARENTAL RIGHTS SHOULD BE TERMINATED AS THE STATE FAILED TO PROVE, BY THE REQUIRED CLEAR AND CONVINCING EVIDENCE, THAT TERMINATION OF THE PARENTAL RIGHTS WAS APPROPRIATE

POINT II.

THE TRIAL COURT ERRED IN NOT FINDING THAT DEFENDANT SATISFIED THE "CHANGED CIRCUMSTANCES" TEST SET FORTH IN IN RE GUARDIANSHIP OF JNH

POINT III.

THE TRIAL COURT ERRED IN NOT EXCLUDING THE REPORT OF DOCTOR NADELMAN OR, IN THE ALTERNATIVE, GIVING DEFENSE COUNSEL AN OPPORTUNITY TO QUESTION DOCTOR NADELMAN ON THE REPORT

We have reviewed these arguments in light of the record and the controlling legal principles. We conclude they are without merit and, therefore, affirm.

N.J.S.A. 30:4C-15.1(a) sets forth, in four prongs, the elements DYFS must establish by clear and convincing evidence in order to warrant termination of parental rights. These statutory standards strike a constitutionally permissible balance between the parents' right to have a relationship with their children, Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982), and the State's responsibility to protect children from harm. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). DYFS must show:

(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) [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 parent rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1(a)(1)-(4).]

As the Supreme Court has explained, these statutory standards provide "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interest of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999).

A trial judge's determinations on these issues are entitled to deference. N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 278-79 (2007). Where, as here, a judge has properly applied the statutory standards and found them satisfied based upon facts supported by "adequate, substantial and credible evidence," we must uphold those findings. Id. at 279 (internal citation and quotation omitted). When the record provides the requisite support for the judge's factfindings, intervention by a reviewing court is justified only if the outcome is based upon a misunderstanding of the law or the implications drawn from the facts are "so wide of the mark that a mistake must have been made." Ibid. (internal citation and quotation omitted).

We are satisfied that, under these standards, nothing justifies our intervention in this case. With respect to each of the issues raised by defendant, we affirm substantially for the reasons stated by Judge Bovino both in his termination decision of January 29, 2007 and in his post-judgment decision of October 9, 2008. We add only the following comments to address the arguments raised by defendant on appeal.

Defendant's contentions ignore well-established legal principles relevant to parental harm and termination of parental rights. The first inquiry is whether the parent has harmed or will continue to harm the child if the parent-child relationship is allowed to persist. N.J.S.A. 30:4C-15.1(a)(1)-(2). "Harm" includes "endangerment of the child's health and development resulting from the parental relationship," and "focuses on the effect of harms arising from the parent-child relationship over time on child's health and development." K.H.O., supra, 161 N.J. at 348.

Here, in addressing the first prong, the trial judge reviewed the history of defendant's abusive conduct towards her daughters, much of which took place in the presence of J.G.M.; the judge properly noted that "evidence of abuse of one child can be evidential as to the abuse of another child." The validity of this finding is supported by statute and case law. N.J.S.A. 9:6-8.46 provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the responsibility of, the parent or guardian . . . ." See N.J. Div. of Youth & Fam. Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.), certif. denied, 192 N.J. 68 (2007).

We are satisfied that DYFS proved the first statutory prong by clear and convincing evidence, in light of defendant's dysfunctional parenting history with her daughters. Defendant's abusive treatment of those children "could be a dangerous harbinger" of her treatment of J.G.M. N.J. Div. of Youth & Fam. Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002). "A child's exposure to a parent's physical abuse of a child may well be abusive to others by instilling either fear or a tolerance to violence in intra-family relationships. . . . [P]otential abuse of other children, whether emotional or physical, cannot be discounted." Ibid.

We reject defendant's contention that the trial judge erred in finding that unsubstantiated allegations were true and in holding the allegations of sexual abuse of her daughters against defendant because they had nothing to do with J.G.M. Equally without merit is defendant's contention that the judge improperly equated her "emotional nature" with neglect.

These contentions misinterpret the trial judge's findings of fact and legal conclusions. The judge did note numerous "unsubstantiated" referrals about defendant and her daughters, and found that "the determination of [']unsubstantiated['] also seems to confirm the fact that incidents did take place."

In other words, the judge found that the "unsubstantiated" events were nonetheless "part of the mosaic of the family dynamic[,]" a finding which is supported by the numerous incidents involving defendant's family over the years, as well as defendant's acknowledgement, even in the "unsubstantiated" cases, that she did hit her children with her hands and a belt.

Regarding the second statutory prong, defendant contends that the judge "failed to draw a supportable connection between the evidence and how the evidence (if at all) satisfied th[is] . . . ." Defendant further contends that she was willing and able to eliminate the harm to J.G.M. as evidenced by her "laudable efforts at self improvement[,]" including her completion of parenting skills training and anger management courses, her attendance at counseling and her participation in psychological evaluations.

While we concur that defendant made efforts to improve her parenting ability, particularly when, as Dr. Dyer noted, the "reality of the threats to her parental rights" began to "sink in[,]" we are nonetheless satisfied that the trial judge properly assessed the proofs regarding this second statutory prong.

Dr. Dyer, although acknowledging the existence of a close bond between defendant and J.G.M., opined that defendant's major problem was her denial of abusive behaviors and that she contributed to her children's disciplinary problems. Although Dr. Dyer noted that defendant had made some improvements, he nonetheless identified significant risk factors that weighed against reunification with J.G.M. These risk factors included defendant's personality, her denial of past abusive behavior and her "tendency to regress to a less than organized psychological state."

In light of J.G.M.'s emotional issues, Dr. Dyer was concerned that the child would present a particular challenge to defendant's parenting ability, as J.G.M. was hyperactive, scattered, and harbored aggressive fantasies. Dr. Dyer expressed concern that if J.G.M. were placed with defendant, his behavior would "provoke a highly inappropriate . . . disciplinary response" from her. Given J.G.M.'s psychological problems which, Dr. Dyer noted, stemmed directly from his early childhood experiences, the doctor opined that J.G.M. needed an "unusually high degree of parental competence and positive emotional investment[.]"

We are satisfied that the record adequately supports the trial judge's finding that defendant's history showed a pattern of a lack of stability and good judgment, thereby satisfying the second statutory prong. "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). Given the complexity of defendant's family dynamics and the psychological evidence of her tendency to deny those dynamics, compounded by J.G.M.'s behavioral problems, we conclude the judge had sufficient evidence to find that notwithstanding defendant's efforts to overcome the harm that led to J.G.M.'s removal, she had failed to reach a level necessary to insure that reunification would not lead to recurrent harm.

Regarding the third statutory prong, defendant first contends that DYFS offered her no services at all when it came to Value Options, an agency that provided counseling on behavioral issues, because DYFS simply gave defendant a phone number. However, DYFS caseworker Huggins explained that under the terms of the Value Options program, DYFS could only "register the client" and it was up to defendant to contact the agency and request assistance. The fact that defendant did not follow up on the referral, therefore, did not constitute a failure on the part of DYFS.

Defendant raises numerous complaints about the manner in which DYFS arranged visitation with J.G.M. We find that these contentions lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Suffice it to say, DYFS provided supervised visitation, including transportation, and explored the option of having family friends supervise the visits but to no avail. When DYFS permitted defendant's brother to supervise visits, he allowed visits to proceed without his supervision and, therefore, that arrangement was terminated.

The record demonstrates that DYFS provided numerous services to defendant and her family including, but not limited to, parenting skills training, anger management classes, family and individual counseling, visitation, homemaker services, placement evaluations and numerous psychological evaluations. On this record, we are satisfied that the trial judge properly found that DYFS had made "reasonable efforts to provide services" to assist defendant in correcting "the circumstances which led to [J.G.M.]'s placement outside the home . . . ." N.J.S.A. 30:4C-15.1(a)(3). Defendant's claims to the contrary fly in the face of the record.

Finally, we address the fourth statutory prong which, in turn, involves consideration of defendant's contentions regarding post-judgment proceedings.

At the time of trial, J.G.M. was in the custody of defendant's half brother Ma.D. and his wife, B.D. At that time, DYFS's plan was adoption by these foster parents with some ongoing contact between defendant and J.G.M. The trial judge, however, concluded that because defendant was not capable of parenting the child, the "only realistic plan" was the termination of her parental rights, with "hopefully adoption by [Ma.D and B.D.]." The trial judge recognized that "clearly, that may not come to be[,]" and that such an eventuality might cause him to reconsider his decision to terminate defendant's parental rights.

Defendant first contends that the trial judge ignored her bond with J.G.M., a bond that even Dr. Dyer recognized. Dr. Dyer, however, believed that any loss J.G.M. might suffer by severing that bond could be mitigated by counseling and appropriate caregivers; the benefits of a stable, nurturing placement would outweigh the damage suffered as a result of the loss of his relationship with defendant. Dr. Dyer further acknowledged that J.G.M. had emotional bonds with his sisters and that losing those relationships would be painful; nonetheless, again, Dr. Dyer believed that J.G.M.'s need for permanency "far over-shadow[ed]" any potential benefit of preserving a bond to his sisters. Were J.G.M. to be reunited with defendant, Dr. Dyer was concerned that that placement would not be sustainable and such a development would be "extremely handicapping" to J.G.M.

Although the judge recognized that J.G.M.'s adoption by Ma.D. and B.D. "may not come to be[,]" nonetheless the judge's termination decision was based on his findings, supported by the record, that the risks of returning J.G.M. to defendant were numerous and would have serious, long-term effects on the child, and that J.G.M.'s need for permanency had reached a critical point.

The uncertain "success of the foster care system in this case[,]" as of the time of trial, "does not alter the fact that [defendant] has not contributed to [J.G.M.'s] development or nurturing." K.H.O., supra, 161 N.J. at 360. The history of defendant's dysfunctional parenting relationship with her daughters, including physical abuse witnessed by J.G.M., coupled with [defendant's] intractable refusal to acknowledge any responsibility for these [problems], creates a clear and compelling record warranting the termination of parental rights . . . . [P]ermitting [J.G.M.] to continue to reside with and be subject to [defendant's] jurisdiction, would cause greater harm than allowing him to remain in DYFS'[s] custody pending a more suitable and permanent foster care placement. [F.H., supra, 389 N.J. Super. at 623.]

III.

We turn to defendant's contentions regarding post-judgment proceedings. We reject her contention that when J.G.M.'s proposed adoption by Ma.D. and B.D. did not occur, the judge "should have completely re-examined [his] rationale for deciding that the [fourth statutory] prong had been satisfied." As noted, the trial judge's decision respecting this statutory prong was not based primarily upon J.G.M.'s eventual adoption by Ma.D and B.D., but rather upon his findings with respect to defendant's ability to provide a safe, permanent home for the child. As the Supreme Court has noted, "there will be circumstances when the termination of parental rights must precede the permanency plan." N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 611 (1986). The trial judge expressly recognized this principle in his termination decision.

Defendant analogizes her case to In re Guardianship of J.N.H., 172 N.J. 440 (2002). There, the Court terminated the mother's parental rights based on her long-term lack of sobriety, her failures at rehabilitation, her neglect and inability to provide her child a safe home, and a pending adoption by foster parents to whom the child had bonded. Id. at 472. Four years after her rights were terminated, the mother moved, under Rule 4:50-1, for relief from the judgment, arguing that because no adoption had taken place, and she had "turned her life around", the termination should be reversed. Id. at 446, 475. There was evidence that the child was not doing well in his placement, and the trial court denied an updated evaluation of him. Id. at 475-77. Further, there was evidence that the birth mother would allow visitation with the foster parents were she to regain custody. Id. at 477.

The Court concluded that in light of these developments, the trial court should have reconsidered the fourth prong of the best interests test. Id. at 477-78. The Court determined that the "[c]onfluence of events . . . [was] unique[,]" and the trial court did not have sufficient evidence before it to decide the Rule 4:50 motion, and thus remanded to allow further proceedings. Id. at 479. The Court emphasized, however, that despite [the mother's] unrebutted evidence of her own rehabilitation, if there had been no suggestion that [the child] was experiencing problems, we would not likely have interfered with the denial of the Rule 4:50 motion. This case is not about [the mother], who by her prior actions is wholly responsible for the position in which she finds herself. It is about [the child] who has not yet been adopted; who is not doing as well as had been hoped in his foster home; whose adoption by his foster parents is conditioned on his having no further social contact with his mother and his brothers; and whose mother desires to reunite him with his siblings and to allow a continued relationship with his foster family. It is only our abiding concern for [the child's] long-term well-being and our reservation in respect of the issue whether termination will do more harm than good in these circumstances that impels the continuation of these proceedings. [Id. at 479-80.]

Defendant argues that the "key component" of the judge's termination decision here was J.G.M.'s adoption by Ma.D. and B.D., and when that fell apart the judge should have "completely re-examined" DYFS's proofs respecting the fourth statutory prong. In other words, defendant contends it was not her burden to "put on an 'entire case' as to 'changed circumstances,'" Rather it was up to the judge to acknowledge the substantial change in J.G.M.'s placement that had taken place and modify his decision accordingly.

As the Court recognized in J.N.H., however, the "abiding concern is for" the child's safety and well-being, and the ultimate goal is "finality for" the child. Id. at 480. Moreover, defendant failed to submit any evidence at either remand hearing to support her claims of improvement.

Defendant ignores the fact that in denying her Rule 4:50 motion, the judge specifically noted that his termination decision was based only "in part" upon the proposed adoption by Ma.D. and B.D., and that he was "clearly convinced that [DYFS] had established all four prongs of the best interest test including the harm occasioned to [J.G.M.], the inability of [defendant] to provide a safe, stable, nurturing home and [DYFS] providing services to help remediate the reasons for removal."

The judge also had the benefit of Dr. Dyer's supplemental report of July 17, 2007. In that report, Dr. Dyer noted that defendant's therapist, Dr. Charles Daly, had "assesse[d] a reasonably good prognosis for successful reunification" of defendant with her daughters but opined that "proposed monitoring and supervisory functions of [defendant's three daughters] would be indispensable components of any plan to reunify [with J.G.M.]." This led Dr. Dyer to conclude that, "from the point of view of ensuring [J.G.M.]'s physical safety, which is the paramount consideration in this case, it is simply not possible to return him to the birth family, in spite of his continuing attachment to his birthmother [sic], and in spite of [defendant]'s progress in treatment." Dr. Dyer opined that the "optimal plan" for J.G.M. "must now rely on extra[-]familial resources. . . . [T]he best remaining plan is select home adoption."

In light of this record, we are satisfied that the trial judge properly denied defendant's motion. The judge found that "there is no showing that [defendant] in and of herself has improved her ability to parent [J.G.M.]. No showing as to how reunification would impact on the family dynamics." These findings are supported by the record.

We briefly address defendant's contention that the judge erred in admitting the report of Dr. Nadelman, at the remand hearing of October 9, 2008. As noted, at that time J.G.M. was placed in a pre-adoptive home, and Dr. Nadelman reported that J.G.M. expressed the desire to be adopted by his present foster parents.

Dr. Nadelman's report was introduced by the Law Guardian, whose motion triggered the second remand hearing, because of the Law Guardian's concern to obtain an updated evaluation of J.G.M. in light of the demise of his adoption by Ma.D. and B.D. Dr. Nadelman's report convinced the Law Guardian that J.G.M.'s adoption by his then-current foster parents was appropriate.

Defendant was free to obtain her own expert to assess J.G.M.'s present mental state, but failed to do so. The judge offered defendant the opportunity to submit proof that she was "stable and can provide a home[,] which defendant also did not do. Under the circumstances, the judge's decision to reaffirm his termination decision and order J.G.M.'s adoption by his current foster parents was proper and supported by the record established at that hearing.

Finally, we find that defendant's argument that the trial judge erred in not conducting an in camera interview of J.G.M. in October 2008 to "ascertain his true wishes[,]" lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Suffice it to say, such a decision was within the trial judge's "sound discretion . . . ." N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 114 (2008). Considering that J.G.M. was only eight years old at the time of the October 2008 remand, and the fact that the child expressed his wishes through Dr. Nadelman's report, we find no abuse of discretion in the trial judge's denial of this request.

Based on the foregoing, we affirm the January 29, 2007 judgment terminating defendant's parental rights as well as the October 9, 2008 judgment reaffirming termination.


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