On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Salem County, FG-17-42-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Sabatino and Newman.
Defendant, R.D., appeals from the termination of his parental rights to K.D. and Ry.D., the two youngest of his five children. In a prior proceeding, the court found that defendant had engaged in improper sexual relations with his oldest daughter, S.D., and was guilty of abuse and neglect as to all five children. The guardianship court subsequently found that the Division of Youth and Family Services (DYFS) had proven by clear and convincing evidence each of the four prongs of the best interests of the child standard set forth in N.J.S.A. 30:4C-15.1(a) and terminated his parental rights. We now affirm.
Both Judge Harold Johnson, in the abuse or neglect proceeding under Title 9, and Judge Darrell Fineman, in the guardianship trial under Title 30, rendered lengthy decisions with extensive findings of facts and conclusions of law. We, therefore, find it unnecessary to trace the extended procedural and factual history of this matter, except as follows.
Defendant and L.D. were married and had four children: S.D., born in 1988; H.D., born in 1990; Sh.D., born in 1992; and K.D., born in 1998. Defendant was the stepfather of L.D.'s two older daughters: D.N., born in 1978, and M.N., born in 1982. Defendant also had a child with L.B., Ry.D., born in 1999.*fn2
In the abuse or neglect trial, Judge Johnson, in his fifty-four page decision of May 2, 2005, found by clear and convincing evidence that defendant had engaged in wrongful sexual relations with S.D., that the sexual contact began prior to S.D.'s sixteenth birthday, and that this behavior was abuse and neglect as to S.D. He further found that defendant was guilty of abuse and neglect because his behavior "placed the physical, mental and emotional health of all of the children in imminent danger of being impaired as a result of [defendant] failing to exercise a minimum degree of care by exposing all the children to his inappropriate sexual contact with S.D."
The court based its decision on the initial statements by the four younger children that their father slept on the couch with S.D., the initial statements by Sh.D. that she heard S.D. crying in the living room at night and telling her father to "stop," and the statements by the children that S.D. generally served as a "parental figure." The court noted that S.D.'s refusal to allow a genital examination implicated a guilty conscience on her part and guilt on defendant's part.
The court ordered the children's removal and placed them under the continued care, custody, and supervision of DYFS, with Sh.D., H.D., and Ry.D. to remain in foster care, and S.D. with her paternal grandmother. It further directed S.D. and Sh.D. to attend psychological counseling and H.D., K.D., and Ry.D. to be provided with a DYFS worker. The court also granted the parents weekly supervised visitation.
No appeal was taken from the court's final decision.
At DYFS's request, Maryann F. McLaughlin, Psy.D., a clinical psychologist, evaluated defendant and, in a report dated September 20, 2005, described him as attentive and cooperative but defensive and guarded. She noted that his IQ score was eighty-six, in the low average range, that he demonstrated some "ineffective interpersonal behavior," but that he was able to function in society by having a job and a home and caring for his children in a stable situation. Based on information provided by defendant and his test results, McLaughlin recommended a parenting assessment and individual therapy to help him develop better interpersonal skills.
After submitting her initial report, McLaughlin received new information concerning defendant's background, including the court's finding of abuse and neglect. In an addendum dated November 30, 2005, McLaughlin concluded that defendant had lied during his interview and had failed to accept responsibility for any negative behavior. Based on his "behavior as a pedophile and his refusal to admit to his actions," she recommended that he "immediately begin intensive therapy in a specialized program for pedophiles." McLaughlin also determined that defendant should not be allowed to see his children until he accepted responsibility, and that there should be careful monitoring, if visitation resumed. She withdrew her prior recommendation for a parenting evaluation.
On December 22, 2005, January 5, 2006, and February 8, 2006, defendant met with Barbara A. Brown, a licensed clinical social worker, for psychotherapy sessions in a specialized program for pedophiles. In her report dated February 28, 2006, Brown found that defendant had demonstrated an inability to parent children and that his defensiveness and denial regarding the sexual abuse allegations made sex offender specific treatment impossible at that time. She recommended that a thorough sex offender evaluation should be considered before any decisions were made regarding the children.
Jennifer Kelly, Ph.D., a licensed psychologist, saw defendant for a psychosexual evaluation on July 5, 2006. After interviewing him and administering psychological tests, she found that defendant was manipulative, dishonest, desperate for the return of his children, and unwilling to take responsibility for his previous sexually inappropriate behavior. Kelly recommended that defendant have no contact with his children, and no unsupervised contact with any children as long as he remained in denial. She further recommended that defendant be reconsidered for sex specific treatment in the future if he became more amenable to treatment.
Defendant's substance abuse evaluation showed that he did not meet the criteria for treatment.
The trial regarding the termination of parental rights commenced in December 2007 before Judge Fineman. Neither biological mother participated in the trial.
DYFS proposed to place K.D. and Ry.D. in select home adoption where families were interested in permanency and adoption instead of serving as temporary residences for children. At the time, these children were living in separate foster homes. K.D.'s foster parents were not interested in adoption, and Ry.D.'s foster mother was not certain. Lisa Puhala, a DYFS adoption worker, testified that both children were thriving but that K.D. had problems with defiance issues and was sexually acting out. Ry.D. had impulse control issues.
DYFS did not believe L.D. or L.B. were capable of parenting the children and did not consider defendant because he never complied with sex offender specific counseling. Puhala acknowledged on cross-examination that, from 1999 to 2004, defendant took care of these children in a "well-fashioned, disciplined, organized manner," that he complied with DYFS's requests for services, which then were terminated, and that it did not receive any reports of children missing school or of abuse during that time. She also acknowledged that DYFS placed these children in defendant's custody, even though it was aware of his guilty plea to a prior charge of endangerment for serving alcohol to minors. She further acknowledged that defendant did not have an alcohol or substance abuse problem, and that his psychological and parenting evaluations did not suggest anything objectionable.
At DYFS's request, Linda Jeffrey, Ph.D., a psychologist, conducted a psychological evaluation of defendant during two sessions in October 2006 and January 2007. She also conducted bonding evaluations of defendant and his four children, excluding S.D., in July 2007.
The purpose of the psychological evaluation was to assess mental health status and parenting capacity. Jeffrey described defendant as "frequently irritable, hostile, uncooperative, and reticent to provide information." Defendant told her that he was living with his then eighteen-year-old daughter, whom she understood was S.D., that he had worked at a truck stop for eight or nine years "until DYFS got me fired," and that he had been unemployed for a year while he continued to work at "side jobs." Jeffrey administered a series of psychological tests, measuring intelligence, reasoning, academic skills, personality, and substance abuse. Defendant refused to take the initial test to determine his reading level, did not complete the personality assessment test, and scored in the third percentile in overall academic skills. Based on the test results, Jeffrey found defendant had low-level depression, an unspecified learning disability, problems relating to social interactions, and serious mental health problems which decreased his parenting capacity. She believed it would be difficult for defendant to provide a safe level of parenting and did not recommend the return of his children.
The purpose of the bonding evaluation was to assess the attachment of the children to the parent. At the time of Jeffrey's evaluation, defendant had not seen his children for at least eight months. After observing defendant with H.D., Sh.D., K.D., and Ry.D., Jeffrey found the children were all friendly, but she believed they had an "insecure attachment" to their father, meaning there was affection but the children did not view defendant as essential to their sense of security. Jeffrey also observed that defendant had the older two girls act as "parents" in terms of the discipline of the younger children, and after they left, it became more difficult for him to watch K.D. and Ry.D., as their behavior deteriorated. She believed termination of defendant's parental rights would cause some harm but not serious or enduring harm, and Jeffrey did not recommend that the children return to his care.
Defendant testified at the guardianship trial, stating that before DYFS removed his children, he left the house each day around 6:00 a.m. to catch the bus for work and returned around 5:30 p.m. The children attended school every day, and then went to their grandmother's, who lived "[r]ight down the road," until he got home from work. Defendant testified that he did all the cooking and washing and the children helped. He also took them to the doctors.
After DYFS removed his children, defendant went for alcohol testing and psychological counseling, but he said DYFS never sent him for drug tests or asked him to get sexual abuse treatment. Defendant also went to a bonding session even though he was having back problems, stating Sh.D. and H.D. tried to help him at the session by watching Ry.D., whom he described as always "a little wild" or hyperactive.
Before the court suspended his visitation rights, defendant said the visits "went fine" except that DYFS workers always argued with him and told the children not to listen to him. He said the children were happy to see him, explaining that "[t]hey jumped on me and hugged me and everything, you know. There was nothing wrong with my kids until they kept poking at them." Because the visits took place during the day, defendant was purportedly fired from his job at the truck stop.
At the time of trial, defendant worked at a gas station. He lived with S.D., who worked at an Acme store. They both worked a mid-afternoon to late-evening shift, and then, defendant would pick up S.D. after work and drive home.
In a fifty-eight page decision, Judge Fineman found that the same issue of sexual abuse and its impact on the children was fully litigated in the Title 9 action before Judge Johnson, that all the elements of collateral estoppel were met, and that none of the exceptions applied. Judge Fineman incorporated Judge Johnson's fact findings into his opinion.
Judge Fineman concluded that the State established each element of the best interests of the child standard set out in N.J.S.A. 30:4C-15.1. He found that defendant had sexually abused S.D., that K.D. and Ry.D. had been exposed to the sexual abuse, and he believed it would be "folly" to leave the children in defendant's care because of the likelihood that harm would be visited upon them in the future. Judge Fineman also found that defendant was unwilling and unable to eliminate the harm to his children because he had not treated his pedophilia, that there was no alternative to parental termination, and that termination of defendant's rights would not cause more harm than good. The court terminated the parental rights of defendant, L.D., and L.B., and awarded guardianship to DYFS.
On appeal, defendant raises the following issues for our consideration:
THE TRIAL COURT ERRED IN APPLYING COLLATERAL ESTOPPEL TO INCORPORATE JUDGE JOHNSON'S FINDINGS FROM THE FACT FINDING HEARING AGAINST [R.D.] IN THE GUARDIANSHIP PROCEEDING.
A. Collateral Estoppel Cannot be Used to Interchange Findings Between Abuse-or-Neglect Proceedings and Guardianship Proceedings.
B. Mis-Application of Olivieri Standards.
C. Mis-Application of V.K.
BOTH TRIAL COURTS RELIED ON UNRELIABLE INCOMPETENT EVIDENCE TO SUPPORT THEIR FINDINGS OF FACT.
B. [Sh.D.'s] Allegations.
C. Judge Johnson's Interview Of The Children.
DYFS FAILED TO ESTABLISH ALL OF THE ELEMENTS OF N.J.S.A. 30:4C-15.1.
A. DYFS Failed to Prove Harm to [K.D.] or [Ry.D.].
B. [R.D.] Provided a Safe and Stable Home.
C. DYFS did not Provide Reasonable Services and the Trial Court Failed to Consider Alternatives to Termination.
Did Not Prove that Terminating Rights Would Not Do More ...