February 9, 2010
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF K.D. AND R.D.,*FN1 MINORS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 6, 2010
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.
A. The Prior charges.
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 Harm Than Good.
We address the issues in the order raised above.
Defendant contends the court erred by adopting the findings in the Title 9 action that he abused or neglected his children and incorporating them against him in the guardianship trial. He argues that the court misapplied the doctrine of collateral estoppel to bar relitigation of the issue of abuse under the best interests of the child standard; ignored the exceptions to the general rule; and misinterpreted case law requiring separate litigation where proceedings required different standards of proof. He also argues that the fact finding decision in the Title 9 action was improper.
At the conclusion of the trial in the Title 9 action, Judge Johnson found that defendant engaged in ongoing and wrongful sexual contact with S.D. which began prior to her sixteenth birthday in violation of N.J.S.A. 2C:14-2(a)(2)(a) and continued after her sixteenth birthday in violation of N.J.S.A. 2C:14-2 (c)(3). The judge also found that this illegal sexual behavior was abuse and neglect as to S.D. in violation of N.J.S.A. 9:6-8.21(c)(3) and that this behavior placed the children's physical, mental, and emotional health "in imminent danger of being impaired as a result of [defendant] failing to exercise a minimum degree of care" in violation of N.J.S.A. 9:6-8.21(c)(4). He further found that the sexual behavior as to S.D. placed her at risk of pregnancy, which "could have therefore resulted in a substantial and ongoing risk of physical injury" in violation of N.J.S.A. 9:6-8.21(c)(2).
Judge Johnson found that defendant violated these statutes by clear and convincing evidence and that defendant was "guilty of abuse and neglect as to all five children by this evidential standard." He explained:
[t]he evidence as presented and as described above, along with the totality of the circumstances as listed, give this court a firm belief and conviction that the allegations so listed and proven by the State are true. The court finds that the evidence is so clear, direct, and weighty in terms of quality and is so convincing that the court does come to a clear conviction of the truth of the precise facts in issue. The court hereby finds that the evidence presented is far more than a mere balancing of doubts and probabilities and that there is clear evidence before it so that the court is convinced that the allegations sought to be proven as stated and reviewed above are true.
He further recognized that a finding by clear and convincing evidence had serious consequences in a family neglect action and that it arguably satisfied "the first prong of the four part test the State must satisfy to terminate a parent's rights as to a child under N.J.S.A. 30:4C-15.1(a)."
DYFS subsequently filed a motion seeking to apply collateral estoppel to foreclose relitigation of the issues of abuse. The Law Guardian joined the motion. In May 2007, Judge Fineman granted the application, stating:
[t]he Court bars the re-litigation of the sexual abuse of the children's sibling and the findings made by the trial court that this abuse placed the physical, mental and emotional health of the children in imminent danger of being impaired as a result of [defendant's] failing to exercise a minimum degree of care by exposing all the children to his inappropriate sexual contact with the children's sibling.
Abuse or neglect proceedings are brought under Title 9, N.J.S.A. 9:6-8.21 to -8.73. Upon the filing of a complaint alleging abuse and neglect, N.J.S.A. 9:6-8.47 provides for a fact-finding hearing followed by a dispositional hearing. The disposition order is considered final and, therefore, is appealable "as of right." N.J.S.A. 9:6-8.70; N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 262 (App. Div. 2009); N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 164 (App. Div. 2003). Defendant did not appeal Judge Johnson's disposition order of May 5, 2005, following his finding of abuse and neglect. Thus, there is no basis to set aside his decision.
Defendant next argues that the court erred by applying collateral estoppel to allow DYFS to use the fact finding from the Title 9 action to prove the first prong of the best interests of the child standard. He specifically argues that the court improperly allowed DYFS to use the finding of abuse of S.D. to support a finding of harm to K.D. and Ry.D.
Collateral estoppel bars a party from relitigating any issue which was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action, where the burden of proof is the same. In re Coruzzi, 95 N.J. 557, 567, appeal dismissed, 469 U.S. 802, 105 S.Ct. 56, 83 L.Ed. 2d 8 (1984); B.F. v. Div. of Youth & Family Servs., 296 N.J. Super. 372, 389 (App. Div. 1997). To determine if collateral estoppel applies, the court must consider whether:
(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.
[Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006) (quoting In re Estate of Dawson, 136 N.J. 1, 20-21 (1994)).]
Although collateral estoppel is not mandated by constitution or statute, it serves important policy goals such as "finality and repose; prevention of needless litigation; avoidance of duplication; reduction of unnecessary burdens of time and expenses; elimination of conflicts, confusion and uncertainty; and basic fairness[.]" First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007) (quoting City of Hackensack v. Winner, 82 N.J. 1, 32-33 (1980)). Even where the requirements are met, a court will not apply this doctrine when it would be unfair to do so. Olivieri, supra, 186 N.J. at 521-22.
"Abuseorneglect and termination proceedings are brought under separate statutory schemes, require different burdens of proof, and allow for different remedies." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 555 (1994). N.J.S.A. 9:6-8.21(c) defines an "abused or neglected child" in relevant part as a child less than 18 years of age whose parent . . . (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; (3) commits or allows to be committed an act of sexual abuse against the child . . . (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent . . . to exercise a minimum degree of care[.]
On a determination of abuse or neglect, N.J.S.A. 9:2-18 allows agencies to file a complaint in the Superior Court seeking the termination of parental rights. K.M., supra., 136 N.J. at 556.
Among the five separate statutory grounds for filing a guardianship petition is a finding of abuse or neglect in an action under Title 9. N.J.S.A. 30:4C-15(a); A.P., supra, 408 N.J. Super. at 259. While DYFS may bring an action to terminate parental rights without a prior finding of abuse or neglect, it generally first brings a Title 9 action, "at least in cases where there is a realistic possibility that a child removed from the parents' home because of alleged abuse or neglect may return to the home with the assistance of DYFS's remedial services."
A.P., supra, 408 N.J. Super. at 260.
N.J.S.A. 30:4C-15.1 requires DYFS to file for guardianship by instituting a termination proceeding when such action would be in the child's best interest. The State must prove, under the first prong of the best interests test, that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1).
When there is an adjudication of abuse or neglect in a Title 9 action and a final order of disposition is entered, this court has recognized that the final order might have "continuing 'adverse consequences' for a parent who has been found to have abused or neglected his or her child." A.P., supra, 408 N.J. Super. at 262. Indeed, "a finding in an action under Title 9 that a parent has abused or neglected his child may be admissible in an action under Title 30 for the termination of parental rights." Ibid.
While DYFS has the burden of establishing abuse or neglect in a fact-finding hearing by a preponderance of the evidence, N.J.S.A. 9:6-8.46(b)(1), the burden of proof in a Title 30 termination case is the clear and convincing evidence standard. K.M., supra, 136 N.J. at 557; A.P., supra, 408 N.J. Super. at 264. When the underlying finding of abuse, however, is made by clear and convincing evidence and not merely by a preponderance of the evidence, it may support a termination of parental rights. N.J. Div. of Youth & Family Servs. v. V.K., 236 N.J. Super. 243, 261 (App. Div. 1989), certif. denied, 121 N.J. 614 (1990).
In V.K., DYFS brought a complaint for custody of the defendants' children, alleging abuse and neglect. Id. at 249. During the custody hearing, DYFS amended the pleadings to petition for termination of parental rights. Ibid. The court found the allegations in the custody proceeding were supported by a preponderance of the evidence but concluded that DYFS did not show by clear and convincing evidence that the defendants' parental rights should be terminated. Ibid. DYFS appealed, and we remanded, ordering among other things that the court take the children's testimony, after which the trial court terminated parental rights. Id. at 250.
On appeal, the defendant-father argued that the trial court erred by terminating his parental rights when the underlying finding of abuse was made by a preponderance of the evidence. Id. at 260. This court agreed, holding that the higher standard of clear and convincing evidence must be applied to the underlying basic finding to support the decision to terminate. Id. at 261-62. We reversed and remanded for the trial court to determine if DYFS proved its allegations of child abuse by clear and convincing evidence, not the preponderance of the evidence standard as originally found. Id. at 263.
Unlike V.K., the court in the abuse or neglect proceeding here applied the higher standard of clear and convincing evidence to determine that defendant sexually abused S.D. and that this behavior placed the physical, mental, and emotional condition of all the children in imminent danger of being impaired. Because the State proved its allegation of sexual abuse by the higher standard in the Title 9 action, Judge Fineman properly used this finding to support the decision to terminate.
The fact finding in the abuse or neglect proceeding satisfied the first prong of the best interests standard in the termination proceeding. All of the requirements for collateral estoppel applied to bar relitigation: the issue of sexual abuse was identical to the issue in the prior proceeding; the issue of abuse and its impact on the children was in fact litigated in the Title 9 action; defendant could have appealed the prior finding after Judge Johnson entered the disposition order; the determination of this issue was essential to the entry of judgment in the Title 9 action; and the parties essentially were identical. Coruzzi, supra, 95 N.J. at 567; see also In re Guardianship of J.O., 327 N.J. Super. 304, 309-10 (App. Div.) (holding the appellant's convictions for raping his children collaterally estopped him from claiming his innocence at parental termination proceedings, because the factual questions were identical), certif. denied, 165 N.J. 492 (2000).
Moreover, defendant does not argue that he lacked a full and fair opportunity to litigate this issue in the prior action. See Delbridge v. Schaeffer, 238 N.J. Super. 323, 331-32 (Law Div. 1989) (finding collateral estoppel applied to bar the plaintiffs from challenging the defendants' decision to remove their children, because the decision was already the subject of two prior family court actions, and there was nothing to suggest the plaintiff-father did not have a full and fair opportunity to voice his complaints), aff'd sub nom., A.D. v. Franco, 297 N.J. Super. 1 (App. Div. 1993), certif. denied, 135 N.J. 467, cert. denied sub nom., Delbridge v. Franco, 513 U.S. 832, 115 S.Ct. 108, 130 L.Ed. 2d 56 (1994).
Furthermore, to the extent that defendant claims he was not alerted to the fact that the court in the abuse or neglect trial could make a finding by the higher standard of clear and convincing evidence, he is mistaken. Judge Johnson indicated as much in the trial. Additionally, the disposition order utilized in these proceedings contains two separate check-off boxes: one for the preponderance of the evidence standard and the other for the clear and convincing evidence standard of proof. Defendant should have been well aware of the consequences of a potential determination by the higher proof standard. The fact that he may have ignored that consequence from occurring does not mean he was not noticed that it could happen.
Contrary to defendant's assertions, the guardianship court did not fail to correctly apply the exceptions to collateral estoppel. See Olivieri, supra, 186 N.J. at 523 (listing five exceptions to the general rule of issue preclusion). First, defendant makes this argument without any citation to the record. It is not our province to substantiate his argument. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). Instead, defendant reiterates his argument that Judge Johnson's fact finding was not a final judgment that carried a right to appeal. As already discussed, the disposition order was appealable. N.J.S.A. 9:6-8.70. Second, Judge Fineman thoroughly considered and analyzed the exceptions to the application of collateral estoppel and concluded that none of them applied. Defendant fails to provide any example to support his argument to the contrary.
Finally, defendant mistakenly relies on N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 90-93 (App. Div. 2008), to argue that the abuse or neglect proceeding and guardianship trial violated recent case law regarding hearsay evidence. In I.Y.A., this court concluded that there was insufficient evidence to sustain the trial court's determination that the defendant abused or neglected her children. Id. at 89. There, the only witnesses to testify at the fact-finding hearing were two DYFS caseworkers. Id. at 86. DYFS did not produce a psychological evaluation of the defendant-mother, and the unidentified psychologist did not testify at the fact-finding hearing. Id. at 91. Nor did DYFS present any expert testimony or proffer an expert medical report with respect to the defendant-mother's diagnosis. Id. at 93. On that record, we concluded that the defendant-mother was entitled to a new fact-finding hearing, and that an evidentiary hearing must be held prior to a transfer of custody to the children's father. Id. at 96.
Unlike I.Y.A., Jeffrey, who administered psychological tests to defendant in the course of a psychological evaluation and conducted bonding evaluations of defendant to H.D., Sh.D., K.D., and Ry.D., testified at the guardianship trial. DYFS presented expert testimony to support its termination action. The record absent in I.Y.A. was present here.
We are satisfied that Judge Fineman properly employed collateral estoppel by adopting Judge Johnson's finding by clear and convincing evidence that defendant committed sexual abuse of S.D. when she was in his care and the other children were in the household.
Defendant contends both courts relied on unreliable incompetent evidence to support their findings of fact. He argues that Judge Johnson improperly relied on prior uncorroborated allegations of sexual abuse, Sh.D.'s recanted testimony, and information obtained from leading, biased interviews of the children.
Defendant's objections to Judge Johnson's fact-finding decision are moot because defendant failed to file a timely appeal after entry of the court's disposition order of May 5, 2005. Notwithstanding, we will address his contentions, none of which are meritorious.
Defendant first argues that Judge Johnson erred by allowing D.N. and M.N. to testify about twelve-year-old allegations that lacked any corroboration. Defendant's argument consists of five sentences and contains no citations to the record or legal authority. Hild, supra, 148 N.J. Super. at 296. The failure to adequately brief an issue "requires it to be dismissed as waived." Weiss v. Cedar Park Cemetery, 240 N.J. Super. 86, 102-03 (App. Div. 1990) (finding no reason for extended discussion of whether court properly dismissed by summary judgment the plaintiffs' damages claims, because of failure to adequately brief the issues). In any event, this argument has no merit.
M.N. testified that she, her older sister, D.N., and their mother moved in with defendant, their stepfather, around 1988, that she was aware of defendant's engaging in sexual relations with D.N. in the early 1990s, that defendant began inappropriate sexual contact with her in the early to mid-1990s, and that this behavior continued until 1995 when she and D.N. made allegations against him and moved out of his house. Judge Johnson believed that M.N. was a nervous and uncomfortable witness and that she did not tell the court all that had occurred between her and defendant. The judge nonetheless found her testimony truthful, believable, and credible based on the totality of his observations and gave it "strong weight."
D.N. testified that defendant began to inappropriately touch her shortly after her family moved in with him. In the early 1990s, she slept in the same bed as her mother, L.D., and defendant, and by the time she was thirteen, defendant had seX with her "all the time" and beat her with his hands. Judge Johnson similarly found D.N.'s testimony truthful, credible, and believable, observing her statements were too precise and detailed to be fabrications, and gave her testimony "great weight."
Judge Johnson properly weighed the testimony of M.N. and D.N. and found them credible. Giving deference to his ability to judge the credibility of witnesses, Judge Johnson's findings were amply supported by the record. Indeed, the DYFS reports corroborated M.N.'s and D.N.'s testimony.
Defendant next contends Sh.D.'s allegations were inadmissible hearsay, including statements that she heard her sister cry at night, that she heard her father say "nasty" things like "this was some good sex," and that she once saw her father jump off the couch, after which her sister covered her head with the sheet. Again, defendant makes this argument without any legal analysis of the hearsay rules.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). A declarant is "a person who makes a statement." N.J.R.E. 801(b). "Hearsay is not admissible except as provided by these rules or by other law." N.J.R.E. 802.
If evidence is not hearsay, "no exception to the hearsay rule is necessary to introduce that evidence at trial." State v. Long, 173 N.J. 138, 52 (2002).
Because Sh.D.'s testimony about hearing her sister crying and seeing her sister on the couch was based on her personal perceptions, and not on third-party statements, these observations were not hearsay. Moreover, Sh.D.'s statement about hearing her father say "nasty things" was not hearsay because it was not offered in evidence to prove the truth of the matter asserted. N.J.R.E. 801. Instead, it was arguably offered to explain why Sh.D. had initially reported the abuse, especially in light of her later denials. In any event, Sh.D.'s testimony about defendant's comments to S.D. meet the hearsay exception for statements made by a party-opponent. N.J.R.E. 803(b)(1).
Even if these statements were admissible, defendant contends they were not sufficiently reliable to establish abuse or neglect by a preponderance of the evidence. He argues that Desiree Wilkins, a DYFS intake worker, improperly questioned Sh.D. the first time with a police officer present, explained the difference between a "good" and "bad" touch, "pushed" Sh.D. about her "concerns," and questioned Sh.D. the second time in the presence of her mother and sister, M.N. He further contends Sh.D.'s initial allegations against him were "superseded by her recantation."
Defendant relies solely on State v. Michaels, 136 N.J. 299, 303-06 (1994), which addressed the issue of whether the prosecution properly conducted investigatory interviews of preschool children who had allegedly been sexually abused by their teacher. To determine whether interviews of child victims of alleged sexual abuse were unduly suggestive and coercive, the Court observed that there must be "a highly nuanced inquiry into the totality of circumstances" surrounding them. Id. at 306. The Court then recognized several factors which could affect the reliability of a child's statement concerning sexual abuse, such as "a lack of investigatory independence, the pursuit by the interviewer of a preconceived notion of what has happened to the child, the use of leading questions, and a lack of control for outside influences on the child's statements, such as previous conversations with parents or peers." Id. at 309. There, the Court found numerous examples of egregious violations of proper interview protocol, including: "the absence of spontaneous recall, interviewer bias, repeated leading questions, multiple interviews, incessant questioning, vilification of defendant, ongoing contact with peers and references to their statements, and the use of threats, bribes and cajoling, as well as the failure to videotape or otherwise document the initial interview sessions." Id. at 315, 321.
The Michaels Court concluded that coercive and highly suggestive interrogation techniques created a significant risk of distorting a child's recollection of events, undermining the reliability of the child's statements and subsequent testimony. Id. at 312. It held that a defendant was entitled to a "pretrial taint hearing" after showing "some" evidence that the victim's statements were the result of suggestive or coercive interviewing techniques. Id. at 320. The burden then shifted to the State to prove the reliability of the proffered statements and testimony by clear and convincing evidence. Id. at 321.
Defendant did not request a pretrial taint hearing on the issue of whether Sh.D.'s statements to Wilkins, or any of the other children's statements to investigators, were the product of improper interview techniques. In any event, he must demonstrate on appeal that the court committed plain error "clearly capable of producing an unjust result," by failing to suppress these statements. R. 2:10-2.
The trial record lacks evidence to support defendant's argument that Wilkins's interview of Sh.D. was improper, or that Sh.D.'s statements were unreliable. Jeff Grove, a DYFS worker, not Wilkins, conducted the initial interview of Sh.D. on November 10, 2004, with Sergeant Pelura of the Salem Police Department present. Two days later, Wilkins interviewed Sh.D. at school, at which time she simply asked Sh.D. if she knew the difference between a good and bad touch, and Sh.D. responded "yes." Wilkins re-interviewed Sh.D. on November 15, 2004, at her school, in the presence of her mother and M.N. According to the DYFS report, Wilkins asked Sh.D. if she was being touched, and she said no but cried. Wilkins's notes indicated that M.N. "comforted [Sh.D.] and held her close and told her that she does not have to be scared." The notes also indicated that "[t]he mother and sister were very supportive and reassured Sh.D. that she is not doing anything wrong."
Defendant fails to provide any record citation to support his contention that Wilkins "explained" to Sh.D. the difference between a good touch and a bad touch or asked other improper questions. There is nothing in the record to suggest that Wilkins's questions were unduly suggestive or coercive or that the location of the interviews at school constituted an interrogation. Defendant also fails to substantiate his argument that Sh.D. was coached by her mother and M.N. during her second interview by Wilkins. Moreover, Wilkins took the stand at the fact-finding hearing and was subjected to cross-examination.
Defendant argues that Sh.D.'s initial allegations were "superseded by her recantation." He suggests Sh.D.'s immediate recantation supported his claim that her mother influenced her testimony, that she made the accusations in an unsuccessful attempt to live with her older sisters, and that she changed her mind when she realized she could not live with them. He further claims that her threat to commit suicide the day after recanting her testimony in a letter to Judge Johnson should have raised "red flags."
In her letter dated January 5, 2005, Sh.D. told the judge that she wanted to live with her father or grandmother, not with foster parents. She also said that her mother made her say what she did and that her dad was not guilty of anything. Defendant, however, acknowledges in his brief that he spoke with Sh.D. at some point after she was removed from his home. He also admits that Michelle Dorman, a DYFS supervisor, oversaw his visit with Sh.D. on January 4, 2005, and that Dorman considered his conversation with Sh.D. inappropriate. In fact, Dorman wrote on the DYFS contact sheet that defendant "was conversing court issues with the children and making them upset by stating inappropriate things with the children." Dorman also wrote that defendant "was very rude" and accused DYFS "of being liars and began to discuss court issues again" after Dorman told Sh.D. that she had to return to the foster home. Because defendant met with Sh.D. the day before she wrote her letter to Judge Johnson, and he admittedly spoke with her about court matters, Sh.D.'s letter recantation was not viewed as a truthful document and properly so.
Defendant also contends the court's interview of the children was improper because it "took on the role of prosecutor," and asked leading and biased questions. For example, he argues that Judge Johnson improperly asked S.D., "[i]sn't it time that if something is going on, to end this," and "do you feel that [your older sisters] let you down in some way"? He also asserts that the judge impermissibly told H.D. there was a "good chance" she would not have to go home after she expressed an unwillingness to do so and that the judge repeatedly asked about "bad" things defendant might have done. Defendant further argues that the judge "pushed" H.D. by asking a series of questions about how she would feel if S.D. moved out of the house, even though the judge heard testimony that H.D. was "cognitively challenged and easily influenced." He also argues that the judge failed to thoroughly question Sh.D. about her change in testimony.
The Law Guardian asked Judge Johnson to interview all five children separately. The judge explained the procedures he likely would follow, and counsel did not object.
As discussed in his fact-finding decision, Judge Johnson interviewed the children to resolve the ultimate issue in the case without having to improperly rely on hearsay statements. He conducted in camera interviews of each child separately under Rule 5:12-4(b) but provided all counsel the opportunity to submit questions to be asked of each child as allowed by Rule 5:8-6, although only the Law Guardian representing the children did so.
The interviews took place on the same day. After being brought to the courthouse, the children were monitored by the DYFS caseworker and allowed to meet and interact. Judge Johnson conducted the interviews in his courtroom in the presence of a Salem County sheriff's officer, the court clerk, and his law clerk. The interviews were recorded, the judge informed the four older children that everything they said was being recorded, and he told S.D. that any party in the case could seek to listen to or obtain a copy of the transcript. The judge chose to wear his judicial robe, explaining that at least one child was strong willed and defensive and that he thought "the best way of perhaps lowering the child's defensiveness and refusal to answer questions would be to place her in the court room [sic] setting with a robed judge." The fact-finding decision included a summary of each interview, the court's observations of each child, and credibility findings.
In a DYFS proceeding, "[t]he testimony of a child may, in the court's discretion, be taken privately in chambers or under such protective orders as the court may provide." R. 5:12-4(b); see also R. 5:3-2(a) (similarly allows court in family actions to take testimony of child privately in chambers, if "[i]n the child's best interests"). In abuse or neglect cases, a trial judge has broad discretion to privately examine a child to assess his or her credibility, powers of communication and observation, and demeanor. L.A., supra, 357 N.J. Super. at 168.
The in-court interviews of S.D. and her four siblings were within the court's discretion. Their testimony was central to the issue of whether sexual abuse occurred. All of these minor children were capable of providing testimony, and the interviews were necessary to assist the judge in assessing their credibility, powers of communication and observation, and demeanor. Defendant did not object to the in camera interviews taking place.
Immediately after interviewing each child, the judge put his observations on the record. He found the children were all intelligent, bright, and articulate.
The judge, however, found similarities among the statements of S.D., H.D., Sh.D., and K.D., and had "no doubt" that the children had talked about this situation. For example, S.D., H.D., and Sh.D. testified that S.D. slept in the bedroom with her sisters, but sometimes fell asleep on the living room floor, on a blanket or mat, watching television. K.D., who initially said S.D. always slept in the bedroom, later told the judge that S.D. slept on a blow-up bed in the living room. On the other hand, the youngest child, Ry.D., said S.D. slept "on the floor where Daddy was sleeping."
Judge Johnson found S.D. "a very strong, young lady, who was intelligent and articulate," but he was not comfortable with the fact that she anticipated or attempted to anticipate his questions. Based on S.D.'s demeanor, body movements, rapid eye movements, and loss of eye contact when addressing questions of a sexual nature, the judge concluded that she was not telling the truth when she denied sleeping on the couch or discussing the case with defendant. Consequently, the judge did not attach much weight to her statements that her father never inappropriately touched her, that her older sisters accused him because they were jealous, and that nothing would happen to her younger sister if S.D. left the house. Contrary to defendant's assertions that Judge Johnson accused and blamed S.D. by asking if it was time "to end this," the judge's questions were not unduly suggestive and gave S.D. the chance to tell him that nothing had happened to her and that she did not believe her older sisters had let her down. Contrary to defendant's claim that the judge treated S.D. "like a criminal defendant," Judge Johnson began the interview with open-ended questions such as what chores she did at home, who slept in the bedrooms, who watched the younger ones, why the other children said she slept on the couch, if she ever slept there with defendant, if she ever lived in the same house as M.N., and if it was true that M.N. used to sleep with defendant.
Defendant next claims Judge Johnson "pushed" H.D. by repeatedly asking if she would be scared in the event S.D. moved out of the house, if she wanted to go home, and if her dad did bad things. H.D., however, did not waver in her testimony, saying she never saw any bad things happen to S.D., that she would be scared of taking care of the children if S.D. left home, and that she would not have to sleep in the living room if she was the oldest girl at home. H.D. also told the court that she did not want to go home, explaining, "just don't," "not like we have much fun," the foster home was "nicer and roomier," and her mother did bad things to her. Thus, there is no evidence that the judge's questions were highly suggestive or coercive, or distorted H.D.'s recollection of events. Michaels, supra, 136 N.J. at 312.
Finally, defendant argues that Judge Johnson failed to question Sh.D. on her motives for the initial allegations or the reasons for her "change" in testimony. The judge, however, gave all counsel an opportunity to submit questions for the children, and noted at the end of the interviews that he had asked all the questions proposed by the Law Guardian for S.D., Sh.D., and Ry.D. Because defendant did not submit any questions, it is disingenuous for him to assert on appeal that the court committed reversible error by failing to ask questions about issues so important to the defense when he never did so. See Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996) (applying doctrine of invited error to bar the defendant from taking a certain course of action below and, if unfavorable, claiming the very procedure he sought was error and prejudicial).
Our review of a trial court's finding of abuse or neglect is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998); I.Y.A., supra, 400 N.J. Super. at 89. Findings by the trial court are generally binding on appeal when supported by adequate, substantial, credible evidence. Cesare, supra, 154 N.J. at 411-12. Because of the family court's special expertise in family matters, we accord substantial deference to its fact finding.
N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009); Cesare, supra, 154 N.J. at 413; Crespo v. Crespo, 395 N.J. Super. 190, 193 (App. Div. 2007). Deference is particularly appropriate "'when the evidence is largely testimonial and involves questions of credibility'". Cesare, supra, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
We do not hesitate to accord substantial deference to Judge Johnson's fact finding and his credibility determinations. We are satisfied there was reliable, competent evidence in the record to support his decision.
Defendant contends the court erred by terminating his parental rights to K.D. and Ry.D. because DYFS failed to satisfy each of the four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.
To terminate a parent's rights under the statute, the State has the burden of establishing, by clear and convincing proof, the following factors:
(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) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
These four factors are neither separate nor discrete, but rather, they overlap to provide a comprehensive standard that identifies the best interests of a child. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007); In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The considerations involved in determining parental fitness are "extremely fact sensitive" and require particularized evidence that addresses the specific circumstances in each case. K.H.O., supra, 161 N.J. at 348. While courts recognize the importance of biological ties, public policy concerns underscore the need to secure permanency and stability for the child without undue delay. In re Guardianship of DMH, 161 N.J. 365, 385 (1999). With these governing principles in mind, we turn to defendant's arguments regarding the first prong of the best interests of the child test.
Defendant contends the guardianship court erred by relying on the findings of fact in the abuse or neglect proceeding. He further argues that both courts improperly admitted expert reports without live testimony, that Jeffrey's testimony was an inadmissible net opinion, that S.D.'s statements in the DYFS reports were hearsay, and that, contrary to DYFS's assertion, there was no evidence that K.D. and Ry.D. were "parentified."
We have already addressed the application of the collateral estoppel doctrine by Judge Fineman to the findings of fact and conclusions of law made by Judge Johnson in the abuse or neglect proceeding and need not repeat them. They suffice to support the finding that the first prong of the best interest of the child test was satisfied by DYFS. We have also dealt with the challenges to Judge Johnson's evidentiary rulings as well as his reliance on expert reports.
Indeed, Judge Fineman found by clear and convincing evidence that defendant committed sexual abuse of S.D. when she was in his care and the other children were at home. Because of the children's exposure to defendant's ongoing sexual abuse of S.D., he determined that they could not remain in the household until they were abused or harmed emotionally. Moreover, the judge found DYFS had no notice of the sexual abuse during the period of 1999 to 2004 and that if the extent of such abuse had been known, defendant's parental rights would have been challenged earlier.
Thus, there was ample evidence in the record to support Judge Johnson's findings that defendant had engaged in ongoing sexual abuse of S.D. at home, and that such abuse was harmful over time to the "physical, mental, and emotional health" of all the children. Because the underlying findings were made by clear and convincing evidence, Judge Fineman appropriately adopted them as the basis for his conclusion that the children's health and development were endangered by defendant's sexual abuse of S.D., and that defendant would continue to cause harm to the children unless they were removed from his care.
There is no merit to defendant's argument that the guardianship court erred by relying on Jeffrey's testimony because it was a net opinion. The net opinion rule requires an expert to give the "why and wherefore" of his or her opinion. Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). When an expert offers a bare conclusion unsupported by factual evidence, the opinion is inadmissible. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981); Rosenberg, supra, 352 N.J. Super. at 401. An expert's opinion, therefore, must be based on "facts or data." N.J.R.E. 703.
Jeffrey's report listed the procedures she followed, including observations, interviews, and psychological tests, and the documents she reviewed in rendering her report. She was cross-examined by counsel, giving the court an opportunity to determine if there were any deficiencies in her report. There also was support in the trial record for Jeffrey's opinion that defendant's "serious mental health problems significantly decrease[d] his parenting capacity" and that his children were likely to be at high risk if placed in his care. Such conclusions were reinforced by the opinions of McLaughlin, Brown, and Kelly, all of whom found defendant unable to parent his children.
Defendant argues that we should reject the claim by DYFS that either K.D. or Ry.D. were also harmed by "parentification." He argues that "parentification" requires "detailed expert testimony, not ad hoc opinions" along with "direct ties between the parent and child." Although he provides no supporting citations to the record, defendant apparently refers to Jeffrey's observation during the bonding evaluation that defendant "parentified the two older girls [H.D. and Sh.D.] who monitored [Ry.D.]." He also refers to the "parentification" of S.D.
Although it occurs in many dependency situations, such as sexual abuse, parentification requires a functional or emotional role reversal in which a child sacrifices his or her own needs to accommodate and care for the logistical or emotional needs of a parent. I.Y.A., supra, 400 N.J. Super. at 91-93 (holding there was insufficient evidence to support court's conclusion that children were parentified, where no psychological evaluation was performed and children were unavailable to testify). Here, Jeffrey observed that the two older girls were "parentified," in support of her conclusion that defendant focused his attention on them, and was disengaged from K.D. and Ry.D. Moreover, the record suggests S.D. was "parentified" based on her statements to Wilkins in November 2004 that she cooked, cleaned, washed, and shopped for the family. There is no claim that K.D. or Ry.D. assumed the role of parent.
Under the second prong, defendant asserts that he provided a safe and stable home for K.D. and Ry.D. from their birth until their removal. He argues that DYFS failed to identify any harm to these children, that there was no basis for him to attend sexual offender evaluations because he "was not a sex offender," that he behaved appropriately and interacted well with his children during visitation until DYFS suspended his visits, and that he was not responsible for the five-year delay in reunification.
Except for defendant's denials that he did nothing wrong and was able to take care of his children from 1999 to 2004, he failed to convince the court that he was "able to parent the children" at the time of trial. In determining parental fitness, the court found defendant's testimony was not sincere or candid, that he blamed everyone else for his problems, that he did not engage in treatment to correct his sexual problems, that he did not complete all the psychological tests, and that he provided no proof to rebut DYFS's claim that "he could not change his ways." The court concluded that DYFS met its burden of proof as to prong two, finding by clear and convincing evidence that defendant was unwilling and unable to eliminate the harm facing K.D. and Ry.D. because he had not treated his pedophilia, and that he should not have unsupervised contact with his children, or any other children.
The second prong requires the State to show that the parent is unwilling or unable to eliminate the harm to the child, or to provide a safe and stable home, and that the delay in securing permanency adds to the child's harm. N.J.S.A. 30:4C-15.1(a)(2); K.H.O., supra, 161 N.J. at 348-49. This inquiry focuses on whether the parent can cease causing harm to the child and whether the parental relationship can continue without causing recurrent harm. K.H.O., supra, 161 N.J. at 348, 352; In re Guardianship of J.C., 129 N.J. 1, 10 (1992). This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's . . . inability to provide a stable and protective home [and] the withholding of parental attention and care . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. While the second prong focuses on parental unfitness, it is related to the harm requirement set forth in the first prong and may be supported by the same evidence. DMH, supra, 161 N.J. at 379.
The facts establish that defendant is unable or unwilling to recognize the harm he caused or resolve the problems caused by his pedophilia. He repeatedly denied the sexual abuse allegations against S.D., at the time of the children's removal in December 2004, at the abuse or neglect proceedings in March 2005, and at the guardianship trial in January 2008. At the first trial, he also denied improperly touching M.N., D.N., or any other child. He blamed L.D. for the accusations, claiming she had raised sexual assault charges against him "[q]uite a few times." He also implied that Sh.D. had fabricated the charges concerning S.D. because he had "got on her" two days before the alleged incident in front of a little boy from the neighborhood.
While defendant participated in DYFS services, including alcohol and drug tests and psychological evaluations, he refused to comply with an achievement test or complete his personality profile test for Jeffrey and did not respond to several questions posed by Kelly. He also did not cooperate with sexual offender evaluations, claiming that they had no basis in the law.
In determining defendant's parental fitness, Judge Fineman found convincing the findings of Jeffrey, Brown, and Kelly. Jeffrey found that defendant had "serious mental health problems" which significantly decreased his parenting capacity, and that his children were "likely to be at high risk for harm if placed in his care." Brown, who held three psychotherapy sessions with defendant for his pedophilia, found defendant was not amenable to sex offender treatment because of his defensiveness and denials, and Brown concluded that defendant was not able to parent the children. Kelly, who conducted a psychosexual evaluation, found defendant manipulative and dishonest, and Kelly also concluded that he should not have any contact with his children or unsupervised contact with any children as long as his denial remained in effect.
The record supports the court's findings that defendant was unable or unwilling to eliminate the harm facing K.D. and Ry.D. and that there was no indication he could become fit in time to meet the children's needs. Defendant failed to present any evidence to suggest that he could provide a safe and stable home for his children, or "foster an environment leading to normal child development." K.H.O., supra, 161 N.J. at 352; see In re A., 277 N.J. Super. 454, 469 (App. Div. 1994) (finding biological mother eliminated potential harm to child from her past drug use and lack of parenting skills by completing drug counseling, remaining drug-free, and attending parenting classes). Defendant's refusal to recognize or treat his pedophilia constitutes a continuing harm to his children under N.J.S.A. 30:4C-15.1(a)(2). Even if defendant admitted his wrongdoing, McLaughlin noted in the addendum to her report that, "treatment for pedophiles is most often not successful and that rate of recidivism is very high." Moreover, any further delay in the permanent placement of the four minor children, who were removed from defendant's home in December 2004, would exacerbate the harm. We are persuaded that DYFS's proofs satisfied the second prong.
Regarding the third prong, defendant contends DYFS did not make reasonable efforts to provide him with services and failed to consider alternatives to termination of his parental rights. He argues that DYFS never had a service plan to reunify his family, that it improperly terminated his right to visitation based on his noncompliance with unnecessary services, that it separated the children, that it "shuffled" Sh.D. between foster homes, that it failed to consider Sh.D.'s motives for accusing him of sexual abuse, and that it failed to provide him with "therapeutic services."
The court found that DYFS made reasonable efforts to provide services to help defendant correct the circumstances which led to the children's placement outside the home and that it considered alternatives to termination of his parental rights. Specifically, it found that defendant was sent repeatedly for services to correct his pedophilia, that he resisted the services, that he failed to admit to any wrongdoing, and that he received psychological evaluations and pedophile counseling which he did not complete because of his attitude. The court also did not consider defendant's alternative to place the children with their mothers as an appropriate option. It therefore found that DYFS met the third prong as to defendant by clear and convincing evidence.*fn3
To satisfy the third prong, DYFS must make reasonable efforts to reunite the family and assist the parent to correct and overcome the circumstances which led to the child's placement in foster care. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" include, but are not limited to: (1) consulting and cooperating with the parent in developing a plan for appropriate services; (2) providing agreed-upon services to the family; (3) informing the parent at appropriate intervals of the child's progress, development and health; and (4) facilitating appropriate visitation. N.J.S.A. 30:4C-15.1(c).
An evaluation of efforts undertaken by DYFS to reunite a family must be done on an individualized basis. DMH, supra, 161 N.J. at 390. Factors that suggest efforts to reunite the family "are no longer reasonable" include "parents [who] refuse to engage in therapy or other services; . . . parents [who] cannot benefit from therapy or instruction due to mental retardation or psychosis; . . . parents [who] threaten workers, child, foster parents, or therapists; . . . another child in the home is abused or neglected and taken into care; . . . [and the] child shows serious adverse reaction to contact with the parent[.]" [N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (quoting Ducote, Why States Don't Terminate Parental Rights, Justice for Children 3 (Winter 1986)).]
"Whether particular services are necessary in order to comply with the diligent efforts requirement must therefore be decided with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort." DMH, supra, 161 N.J. at 390. Thus, the efforts made by DYFS on a parent's behalf are "not measured by their success." Id. at 393 (holding DYFS made sufficient efforts to assist father, by providing regular visitation, encouraging ongoing parent-child relationship, assisting in respect of domestic violence, allowing his inclusion and cooperation with biological mother, and furnishing referrals to obtain housing).
The record supports the court's finding that DYFS made reasonable efforts under the circumstances to reunite K.D. and Ry.D. with defendant. There was ample evidence that DYFS offered a variety of services to defendant and his family, including sex offender evaluations and counseling. Moreover, DYFS had offered services to defendant prior to Sh.D.'s allegations, following referrals made in 1990 (alleging he slapped L.D.'s son, D.N.), in 1992 (alleging he was sexually abusing D.N.), in 1993 (alleging he raped D.N.'s and M.N.'s friend, a charge on which a jury found him not guilty), and in 1995 (alleging he sexually molested M.N.).
In 1996, DYFS offered services to defendant in an attempt to keep his family intact. At that time, defendant signed a service agreement. In March 1996, a therapist provided DYFS with a termination summary based on her work with the family, noting, among other things, that defendant was reluctant to work on parenting skills and did not see the need for DYFS's services.
In 1999, defendant completed a parenting assessment evaluation, after which DYFS placed K.D. and Ry.D. in his care. In 2001, DYFS closed the case and stopped offering services to the family. From 1999 to 2004, there were no DYFS referrals concerning defendant or his family.
After receiving the November 2004 referral, and before the children's removal, DYFS met with defendant and he agreed to participate in services and signed a case plan. The plan called for a psychological evaluation of defendant and a sex abuse evaluation of S.D.
DYFS subsequently offered defendant a variety of court-ordered services, including substance abuse evaluation, psychological evaluation with parenting assessment, psychotherapy, sex offender specific evaluation, and psychological and bonding evaluations. As noted already, defendant received psychotherapy in a specialized program for pedophiles but apparently did not attend a thorough sex offender evaluation and was not recommended for sex offender therapy. In the December 2005 disposition order in the abuse or neglect proceeding, Judge Johnson recognized DYFS's desire to continue to provide services to the family, and delayed adoption of a plan to terminate parental rights.
Beginning in January 2005, DYFS also offered defendant weekly supervised visitation. In December 2005, however, DYFS suspended visitation based on McLaughlin's recommendation that defendant should not visit the children until he accepted responsibility for his actions.
The record supports the finding that DYFS investigated alternatives to termination. The only alternative proposed by defendant was to place the children with their respective mothers which was considered and properly rejected. According to Puhala, no one from the family offered to be a caregiver for K.D. L.B., however, suggested the names of two relatives as possible caregivers for Ry.D. Puhala testified that she sent a cover letter and forms to both relatives but did not receive any response. There was credible evidence in the record to support the court's finding that DYFS satisfied the third prong.
The fourth prong requires DYFS to show that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). Defendant contends the court erred by relying on Jeffrey's testimony to find that this prong was met. He argues that Jeffrey's testimony was unreliable, because she found K.D. had bonded with her foster mother and never addressed the impact of the "four year delay" on his relationship with K.D. Defendant does not address how termination of his parental rights would harm Ry.D.
The court concluded that termination of parental rights would not do more harm than good. It reviewed Jeffrey's testimony in detail, including her psychological and bonding evaluations of defendant. While recognizing that termination would do some harm, the court accepted Jeffrey's opinions that the attachment between defendant and his children was "superficial in nature," that an insecure attachment by itself could do harm, and that when coupled with the lack of sexual counseling, defendant should have no contact with the children.
Under the fourth prong, "[t]he question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). Parental rights, however, should not be terminated without making a provision for a more promising relationship in the child's future. Ibid. A child's need for permanency is an important consideration. M.M., supra, 189 N.J. at 281. Thus, [w]hen a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and when the child has bonded with foster parents who have provided a nurturing and safe home, in those circumstances termination of parental rights likely will not do more harm than good. [E.P., supra, 196 N.J. at 88, 108.]
Weighing the harm from termination of a parent's rights against the removal of a child from a foster home requires expert inquiry into the strength of each relationship. K.H.O., supra, 161 N.J. at 355. In cases where reunification is improbable, the "good" done to the child is his or her permanent placement with a loving family, which is the principal goal of the foster care system. Ibid. Terminating parental rights without any compensating benefit, such as adoption, however, may do a child great harm. E.P., supra, 196 N.J. at 109.
At the time of the bonding evaluation in July 2007, defendant told Jeffrey that he had not seen his children for "awhile, quite a few months," later explaining that he had not seen them that year. Ry.D. arrived with H.D. and Sh.D., and Jeffrey observed that the children were friendly, that defendant hugged them and brought them gifts, that Ry.D. called him dad, that defendant focused on talking with Sh.D., and that defendant did not notice when Ry.D. left the room. When K.D. arrived later, she kissed and hugged defendant. Shortly after, the two older girls left. By that point, defendant was complaining about his back and looked bored and detached as K.D. and Ry.D. played. Jeffrey observed lengthy periods of silence from defendant.
Jeffrey found that K.D. displayed much less interest in defendant than the other children. She noted that, after Sh.D. and H.D. left, defendant became so disengaged from his two younger children that Ry.D. commented, "[t]here's no one to play with me," and "[a]re you ok, Dad"? As time passed, Jeffrey observed that K.D. and Ry.D. became more disorganized and hyper in their play. Jeffrey concluded that all four children displayed insecure attachment to defendant and that they were likely to experience some harm if defendant's rights were terminated, but that they should not return to his care.
At the guardianship trial, Jeffrey testified that children who received insensitive, neglectful or abusive care were likely to develop insecure attachments. She explained that these children were "at higher risk of developing difficulties in later interpersonal relationships, have difficulty forming close relationships, may be possessive or overly dependent in relationships and have enduring fears of loss and abandonment." Thus, an insecure attachment by itself produced harm for children.
Jeffrey thought defendant was unable to form reciprocal and reliable relationships to give his children more secure attachments. She explained that his lack of consistent authority, structure, and organization was harmful to the children. Jeffrey concluded that termination of defendant's rights would not cause "serious and enduring harm" to the children. Even if the children were not in adoptive homes, she believed their return to defendant would cause more harm to them than other alternatives.
In December 2007, Jeffrey conducted a foster parent bonding evaluation with K.D., who had been placed with the foster mother about two-and-a-half months earlier. During that time, Jeffrey believed they had formed a "strong bond" and a "warm, affectionate relationship." The foster mother indicated an interest in adopting K.D., and K.D., in turn, hoped that she would not have to move again. Jeffrey recommended that K.D. remain in the foster mother's care. Three days later, at a supervised visit with her biological mother, K.D. told the caseworker that she did not want to be adopted. The record does not contain a bonding evaluation with Ry.D. and his foster parents.
In January 2008, Puhala testified that K.D. and Ry.D. were in separate foster homes.*fn4 She stated that K.D.'s foster parents were no longer interested in adopting K.D. because of the foster husband's health problems.
The record supports the court's finding that termination of defendant's parental rights would not do more harm than good. Defendant failed to present any expert testimony to the contrary. He also failed to present any evidence at trial to show that he could provide more secure attachments with the children if they were returned to his custody and care, or that he was willing to undergo thorough sexual offender evaluations and treatment to avoid the risk of continuing harm. Under these circumstances, termination of defendant's parental rights will not do more than good, and will free the children for adoption.
The order terminating R.D.'s parental rights to K.D. and Ry.D. is affirmed.