On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-77-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Fisher and Sapp-Peterson.
In these consolidated matters, E.G. and J.T. appeal from the Family Part order terminating their rights to their children. We affirm Judge George E. Sabbath's April 9, 2009 written opinion.
E.G. and J.T. are the biological parents of E.T., born September 14, 2004; G.T., born August 6, 2006; and S.T., born August 5, 2007. Although E.G. testified that she and J.T. married, that testimony was disputed at trial. E.G.'s oldest child is T.G., born July 30, 2002, whose father's identity is apparently unknown. The Division of Youth and Family Services (Division) first became involved with the family in June 2006 based upon a charge of abuse stemming from an allegation that J.T. had a scar on his right leg that appeared to have been the result of being struck with a belt buckle. Although initially the allegation was determined to be "unfounded" by the Division, E.G. subsequently admitted causing the bruise. The Division provided services that included placing a homemaker in the home on a daily basis and referring the parents to parenting classes, psychological and substance abuse evaluations. The Division also conducted home visits and was in communication with a pediatrician who had contacted the Division and reported concerns about the children's well-being, based upon an examination that found the children "remarkably underweight," and that they were "behind in their immunizations, dirty, and smelled." During this time, E.G. and J.T. were living in an apartment, but because they fell behind in the rent, they were ultimately evicted in January 2007.
On December 28, 2006, during a home visit, a caseworker observed that T.G.'s lip was swollen and bloody. Both E.G. and J.T. were at home and both indicated that T.G. bit his lip. T.G., when asked what happened, told the worker that J.T. hit him and that E.G. bumped her head onto his head. The worker effectuated an emergency Dodd*fn1 removal of the children and subsequently filed an order to show cause and verified complaint, seeking custody and care of the children. The court granted the Division's application by order dated January 3, 2007.
In its findings in support of the issuance of the order, the court noted that defendants denied having struck T.G. and asserted that the child had bitten his lip, but that "considering the testimony, one can . . . hardly believe that or even begin to attribute any truth to that whatsoever." The court explained that J.T. had "hustled the child into the bathroom, where he stayed for an extensive period of time." The court concluded that "[t]he parents were apparently hiding the child because they knew what they had done was wrong and that this would create a problem[,]" particularly considering there was another "act of excessive corporal punishment back in the early part of '06 when the child was disciplined by a beating with a belt and left scars that were still evident four months later." The court noted that E.G. actually committed the act, but that J.T. was also responsible because he, in addition to E.G., lied about that incident.
Further, the court found that T.G. had no history of problems with biting his lip, but when the Division worker saw his bleeding lip, both parents "screamed at the child that he should stop biting his lip[,]" thus, in the court's view, trying to cover up their wrongdoing. Because of the cover-up attempt, the court did not consider this incident insignificant and found that the parents' behavior in this regard caused all of the children in the household to be at risk, although "especially this young boy" who "seems to be a target for physical abuse."
The court's findings additionally noted that the family had not had "stable housing" and had an issue of unsanitary conditions that led the parents to explain one injury to E.T. as being caused either by a mouse or by J.T. trying to pull E.T. away from a mouse. The court also referenced a doctor's report, which stated that the children wore clothes that were soiled and foul-smelling.
Responding to a question of counsel regarding the standard of proof the court had found present, the court stated:
That type of punishment on December 28th I find to be excessive corporal punishment and not by a mere preponderance of the evidence but clearly and convincingly --
-- that child was smacked or punched in the mouth. Okay? That child had a big swollen lip and he was bleeding from the mouth and that was not from a bite by the child, and these are the same parents that belted and buckled the child. So it seems to be a way of life for these two to a certain extent. I'm not saying that they have a long history of it, but they resort to corporal punishment and they did on that day, and if that child wasn't removed that day I don't know what else the Division would have had to see in order to remove the child.
The January 3 order directed E.G. and J.T. to undergo psychological and substance abuse evaluations and to comply with any recommendations, as well as attend parenting classes. Over the next several months, the Division attempted to work with both E.G. and J.T. as well as explore resource placements for the children with relatives. This latter effort proved unsuccessful. The Division also had the children examined and they had reportedly gained weight. During this time period, E.G. and J.T. continued to have housing problems stemming from non-payment of rent despite receiving assistance from the Passaic County Board of Social Services.
On August 9, 2007, four days following her birth, the Division conducted an emergency removal of S.T. because her parents' home was not suitable for the newborn. E.G.'s and J.T.'s living arrangements had not improved. Both parents were unemployed, had no means of paying their rent, and they had been without electricity since mid-July due to nonpayment of their utility bill. Throughout 2007, both E.G. and J.T. participated in supervised visitation with their children, which, for the most part, went well.
The court conducted a fact finding and a permanency hearing on December 19. The court was satisfied, by clear and convincing evidence, that E.G. and J.T. had physically abused T.G. and had placed E.T., G.T. and S.T. at risk of abuse and neglect. The court accepted the Division's permanency plan that called for termination of E.G.'s and J.T.'s parental rights because both parents had failed to comply with the recommended services that had been provided to them and also failed to maintain stable housing and employment. The following month, the children were placed with their maternal grandparents. The Division filed for guardianship of T.G., E.T., and G.T. and termination of E.G.'s and J.T.'s parental rights on February 21, 2008 and, on June 19, 2008, sought similar relief as to S.T.
The Division read excerpts from the December 19, 2007 fact-finding proceeding on the abuse and neglect over which Judge Sabbath also presided. In addition, it presented evidence of its efforts to assist E.G. and J.T. in eliminating the harm caused to the children that included its provision of ECAP*fn2 services five days a week for one or two hours a day during which both favorable parenting and negative parenting was observed by the ECAP worker. The Division also referred both parents for substance abuse evaluations and parenting classes.
E.G. successfully completed the substance abuse programs and both parents, upon completing the parenting classes, were evaluated as "fair" in the area of parenting skills. Both parents were also referred to Family Intervention Services (FIS) for counseling, but their participation was not consistent. Although E.G. had claimed during her testimony at the December 2007 fact-finding hearing that she did not attend the counseling because of transportation problems, at trial both parents stipulated that they had been provided bus passes to attend the counseling sessions. The Division also, in accordance with the court's February 28, 2007 order, referred J.T. to anger management classes. His attendance at the program was sporadic and J.T., during his testimony at trial, indicated that he did not believe he needed the program despite being court-ordered to do so. He did not complete the program until October 2008 and was not issued a certificate of completion because, in the opinion of his counselor, J.T. continued to exhibit denial and resistance and could benefit from individual counseling. His anger management counselor testified at trial that J.T. was discharged from the program.
In addition to counseling, substance abuse, bus transportation and daily home services, the Division also approved full-time daycare services for T.G., E.T. and G.T. Further, when the children were removed from their custody, the Division arranged for supervised visitation with the children, which both parents regularly attended.
The Division's representative also testified as to the agency's efforts to place the children with relatives following their removal from E.G.'s and J.T.'s custody. The Division explored resource placements with J.T.'s grandmother, who declined to assume this responsibility due to her advanced age. Three of the children had also been placed with an aunt but were removed from her custody in 2007 and placed in foster homes. As of February 2008, the children were living with their maternal grandparents, with whom they had previously lived along with E.G.
Marcia Laky, Ph.D., a clinical psychologist, was qualified at trial as the Division's expert in clinical psychology. She prepared bonding evaluations between the three older children and E.G. and J.T. as well as between the children and their maternal grandparents with whom the children were residing at the time the bonding evaluations were completed. Dr. Laky also conducted individual psychological evaluations of E.G. and J.T. She administered a battery of standardized tests upon the parents in order to assess their personality, parenting attitudes, and child abuse potential.
Dr. Laky, in her report that was admitted into evidence without objection, found that J.T. "presents with immaturity and as an under[-]skilled, unstable, overconfident man who has little grasp of an independent permanent home and has up to this point in time exercised poor insight[,] foresight and judgment in his life choices and in his parental capacities." She concluded that J.T.'s "grasp of a stable life is in its infancy as he is just beginning another job and is not living independently." She opined that "he would be at high risk of failing to provide his children with necessary nurturing, protection, stability and guidance at this time in his life."
As to E.G., Dr. Laky opined that E.G. "presented as an immature, unrealistic 21[-]year[-]old with poor judgment, insight and planning abilities despite adequate cognitive skills and the absence of major mental illness." Although she noted E.G.'s "excellent effort with counseling" in the FIS Program, Dr. Laky opined that "a review of the written record sheds doubt on her accuracy and credibility of her intentions and follow through." She added that E.G. "has barely begun to stabilize her own life in terms of independence and employment. As of this writing, she has not functioned in a responsible, mature manner. It would be a high risk situation to entrust her with full time care of her children at this time."
Addressing the issue of bonding, Dr. Laky, in her report, described her observations of the three older children with E.G. and J.T. during a June 6, 2008 visit. She reported that T.G. had greeted E.G. with a big hug, and G.T. and E.T. ran to J.T. calling him "Daddy." She described how E.G. playfully ribbed G.T. for not saying hello to her but that G.T. seemed unaware of her meaning. Dr. Laky described various interactions throughout the visit, some of which she labeled as involving appropriate parenting responses to avoid danger and demonstrating affection, but others lacking judgment and insight into the children's needs. Dr. Laky opined that T.G. had exhibited "an ambivalent attachment pattern toward his parents[,] especially his mother[,]" alternating between seeking connection and then angry outbursts rejecting E.G., and between seeking connection and ignoring J.T. She reported that E.T. exhibited a more "avoidant" pattern of quiet play, but before the scheduled end time, she did say it was time to go home, which Dr. Laky believed suggested "much distress despite [E.T.'s] quiet demeanor." She also found that G.T. exhibited an ambivalent pattern, allowing hugs before quickly wiggling away.
In contrast, Dr. Laky's report described the children's interactions with their maternal grandparents as relaxed during an April 16, 2008 bonding evaluation session. By this time, the children had been living with their grandparents for the past four months. She noted various types of play and encouragement, and some appropriate parenting correction. Dr. Laky concluded that the three children "seemed very comfortable and securely attached to both of their grandparents" and "looked to both of their grandparents for comfort and direction." She indicated that the grandparents "seemed attuned to the children's needs and provided appropriate limits, boundaries and affection in a consistent, caring and relaxed manner." Dr. Laky, during her trial testimony, concluded that if E.G.'s and J.T.'s parental rights were ...