October 5, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF T.A.D. A/K/A T.A.P. AND E.D.,*FN1 MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-53-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2010
Before Judges Grall, C.L. Miniman and LeWinn.
R.P. appeals from an order of the New Jersey Superior Court, Chancery Division, Family Part, Union County, terminating his parental rights to T.A.D., born August 2006, and E.D., born September 2007. The children's mother, T.D., voluntarily surrendered her parental rights and did not participate in the guardianship proceedings or file an appeal.
R.P. seeks reversal of the order on the ground that the Division of Youth and Family Services (DYFS) did not prove its case. Because the judgments are supported by evidence clearly and convincingly establishing that termination of his parental rights is in the best interests of his children, as defined in N.J.S.A. 30:4C-15.1a, we affirm. In re Guardianship of J.N.H., 172 N.J. 440, 471-72 (2002).
DYFS became involved with R.P.'s family before T.A.D. was discharged from Trinitas Hospital following his birth. R.P. and T.D. told Marion Grogan, a social worker at Trinitas Hospital, that they were both working but did not have a crib, car seat, baby clothes or any other equipment for their child. Consequently, Grogan notified DYFS, and DYFS sent a caseworker to investigate.
R.P. and T.D. offered the caseworker an explanation for their lack of preparation and described their plans to allocate responsibility for the infant's care. They explained that the baby had arrived several weeks early and they would obtain what the infant needed as soon as possible, and when T.D. returned to her job as a school crossing guard, R.P., who worked nights, would care for the child while she worked. Although R.P. admitted that he felt "a little overwhelmed" when he thought about assuming that responsibility, the caseworker found no reason for concern about abuse or neglect.
Seventeen days later, Grogan informed DYFS that T.A.D. had been admitted to Trinitas for failure to thrive. T.A.D. had lost a pound, which the parents and medical professional attributed to improper preparation of T.A.D.'s formula.
Recognizing that new parents commonly have that difficulty, DYFS again found no abuse or neglect and arranged for a homemaker to assist and instruct T.A.D.'s parents. After two weeks, things had not improved. The homemaker reported that the formula was still mixed improperly, bottles were not sterilized and the parents were using dirty washcloths on T.A.D.'s face and mouth. The baby's bottles and blankets were left on the floor and the apartment was "filthy." A DYFS caseworker visited the home, confirmed the conditions and, at R.P.'s request, extended the services of the homemaker for another two weeks. By the end of that period, the homemaker agency felt sufficiently "comfortable" to recommend discontinuation of its services. The parents changed from powdered formula to liquid formula, which the parents did not have to mix, and although the bathroom was still "filthy," the apartment was "generally clean."
T.A.D. did not thrive, however. On November 7, 2006, T.A.D.'s pediatrician contacted DYFS because he was not growing at a normal rate. His growth was "way below" and "starting to fall off" the curve.
DYFS responded by providing additional services in the home and having a caseworker monitor progress. The caseworker noted that R.P. was not washing himself "very well" and detected a distinct odor in the "filthy and cluttered" home. Although the family moved to a new apartment in May 2007, the problems with cleanliness continued. On June 1, 2007, there were dirty bottles on the floor and inside T.A.D.'s crib. There were also dirty diapers balled up on the floor. R.P. was seen drinking T.A.D.'s juice straight from the bottle. He also left used toilet paper in the sink and on the floor and toilet tank.
There were health problems beyond basic hygiene. T.A.D. was having digestive problems and on May 25, 2007, medication was prescribed. Despite frequent reminders from the in-home aides and the caseworker, R.P. neglected to fill the prescription. Even after DYFS ordered and paid for the prescription, the parents did not pick it up.
When T.A.D. reached the age at which he should have been eating table rather than baby food, his parents did not provide it. On August 3, 2007, they had none in their home. T.D. claimed they did not have the money to buy food, and R.P.'s mother J.P., who was present, said she would supply it. As of August 16, however, T.A.D.'s diet still consisted of nothing other than baby food and whole milk.
E.D., R.P. and T.D.'s second child, was born on September 5, 2007, suffering from a sepsis infection. Because the infant was in respiratory distress, he was placed in the special care nursery at Trinitas. Grogan, aware of DYFS's involvement with T.A.D., called DYFS to ask whether E.D. should be discharged to his parents' care.
On September 14, 2007, DYFS obtained an order authorizing the agency to assume custody of T.A.D. and E.D., which was based on the parents' neglect of T.A.D. On the same day, T.A.D. was placed in a foster home, and E.D. was placed in that home upon his discharge from Trinitas. J.P., the children's paternal grandmother, and her boyfriend J.L. sought to have the children placed with them, but their request was denied due to J.L.'s criminal record.
Both children have developmental delays. T.A.D. was born in August 2006, but in June 2008, he still could not walk without assistance. DYFS arranged for him to receive physical therapy and testing, which ultimately led to the detection of an abnormal duplication of a chromosome likely to limit his cognitive ability and result in developmental and learning disabilities. Because the chromosome condition is hereditary, E.D. and R.P. were also tested. E.D.'s tests were normal, but R.P.'s were not. Although E.D. does not suffer from the same condition as his brother, his speech, cognition and gross motor skills are also delayed.
A psychologist evaluated R.P. and T.D. on October 16, 2007. In his opinion, neither R.P. nor T.D. could adequately parent their children and the prospects for improvement were poor. He recommended parenting classes and psychological treatment.
Following up on the psychologist's recommendations, DYFS referred R.P. to parenting classes twice, but he completed both programs without making substantial progress. Reports indicate that he was only sometimes motivated to improve his parenting skills and his participation dropped off as time went on. R.P. had to restart the second parenting program twice due to unexcused absences, and he was frequently late. In his instructor's opinion, R.P. was "not as productive" as he should have been.
DYFS also arranged for R.P. to receive individual counseling. His first counselor reported that he exhibited "poor judgment" in his relationships with women and had "below average" emotional intelligence. R.P. was terminated from the first counseling program after missing two appointments without canceling. According to the therapist, it would be "very difficult for [R.P.] to parent any child without further counseling and intensive support," much less a child with special needs such as T.A.D. R.P. saw his second therapist only once. That therapist found him to be "lack[ing] the necessary insight, maturity and emotional stability to participate in individual counseling" and recommended referral to a psychiatrist.
In addition, DYFS offered R.P. supervised visitation. R.P. was frequently late or failed to attend. When he did participate, he was observed overfeeding his children, having difficulty monitoring them and exerting little effort to communicate with or assist his children. He did not appear to understand their needs.
Psychological and bonding evaluations were conducted shortly before trial by psychologist Dr. Peter DeNigris. R.P., J.P. and J.L. participated. In addition, Dr. Alexander Iofin, a psychiatrist, evaluated R.P. Their findings and opinions are summarized below.
Both experts concluded that R.P.'s limited mental capacity prevents him from understanding his children's needs or learning strategies to address them. They all agreed that there was no potential for improvement; neither believed that there was any treatment, program or service that could correct or alleviate the conditions that diminish R.P.'s capacity to parent his children. R.P. does not believe that his children have any significant problems and has difficulty supervising and engaging them. Dr. DeNigris explained that R.P.'s I.Q. is 54, placing him in the "Extremely Low" range of intelligence, and Dr. Iofin found R.P. to be suffering from moderate mental retardation, a personality disorder that the doctor could not specify and a chromosomal condition.
With respect to bonding, Dr. DeNigris found no bond between R.P. and his children. Dr. DeNigris observed no interaction between the family members and the children were not distressed and had no reaction when R.P. left them at the conclusion of the evaluation.
Dr. DeNigris's conclusion about the bond between the children and J.P. and J.L. was similar. J.P. and J.L., like R.P., failed to understand the children's needs and did not recognize the children's developmental delays. While J.P. and J.L. showed the children affection, the children did not reciprocate and did not react when they were separated from J.P. and J.L.
In DeNigris's opinion, the children would not experience any loss or grief if their relationships with R.P., J.P. or J.L. were ended. He recommended termination of R.P.'s parental rights in order to permit DYFS to pursue a select-home adoption.
R.P. waived his right to testify and did not present any witnesses.
After the trial record closed, the children were placed with a foster family that plans to adopt them.*fn2 As of February 2010, they had been in that home for about four months.
The trial court issued a comprehensive oral decision on November 30, 2009. After extensively reviewing the factual history outlined above, the judge found that DYFS had satisfied its burden of proof on each prong of the four-part standard for termination set forth in N.J.S.A. 30:4C-15.1a. Accordingly, she entered an order terminating R.P.'s parental rights.
On appeal, R.P. contends that the trial court erred in concluding that the four elements of N.J.S.A. 30:4C-15.1a had been proven by clear and convincing evidence. We disagree.
N.J.S.A. 30:4C-15.1a sets forth the four elements DYFS must establish by clear and convincing evidence in order to warrant termination of parental rights. These statutory standards strike a constitutionally permissible balance between the parents' right to have a relationship with their children, Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982), and the State's responsibility to protect children from harm, In re Guardianship of J.C., 129 N.J. 1, 10 (1992). See In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999).
DYFS must show:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) 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. [N.J.S.A. 30:4C-15.1a(1)-(4).]
As the Supreme Court has explained, these statutory standards provide "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999).
The standards governing this court's review are also clear. A trial court's determinations are entitled to deference. N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). When a judge has applied the standards and found them satisfied on the basis of facts that are supported by "adequate, substantial and credible evidence on the record," this court must uphold the findings. Id. at 279 (internal quotations omitted). If the record provides the requisite support for the factual findings, intervention by a reviewing court is warranted only if the determinations are based upon a misunderstanding of the law or the implications drawn from the trial court's findings are "so wide of the mark that a mistake must have been made." Ibid. (internal quotations omitted).
After reviewing the record and R.P.'s arguments on appeal, we affirm substantially for the reasons set forth in the trial judge's comprehensive oral opinion. R. 2:11-3(e)(1)(A). We add only the following comments to clarify the record and address specific points raised on appeal.
In analyzing the third prong accounting for the steps taken by DYFS to avoid termination of R.P.'s parental rights, the judge indicated that DYFS was "in the process" of ruling out the children's grandmother as a potential caretaker. Although it appears that DYFS was still exploring her suitability, R.P. did not object to termination on the ground that DYFS should have first determined whether that placement was available as an alternative to termination of his parental rights. Moreover, he does not raise that objection on appeal. Accordingly, any objection on that basis is waived. Muto v. Kemper Reinsurance Co., 189 N.J. Super. 417, 420-21 (App. Div. 1983).
We acknowledge that adoption of R.P.'s children was far from certain when the judge rendered her decision, but the judge did not overlook that fact. In considering whether DYFS established that terminating R.P.'s parental rights would not do more harm than good, the judge weighed the uncertainty of adoption against the near certain harm that would befall the children if they were returned to their father's care. As the Supreme Court noted in N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 611 (1986), "there will be circumstances when the termination of parental rights must precede the permanency plan." The trial judge concluded that this was one of those cases, and we cannot say that her determination is "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotations omitted).