October 29, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.V. AND Z.M., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, No. FG-16-13-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2010
Before Judges Wefing, Payne and Baxter.
Y.V. appeals from a trial court judgment terminating her parental rights with respect to her two daughters, Z.M., now nine years of age, and A.V., now eight years of age. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Y.V. has two other children, an older son and a younger son, each of whom now resides with his respective father. Neither of the boys was the subject of the trial court's proceedings.
In the three-and-one-half-year period from January 2003 to July 2006, the New Jersey Division of Youth and Family Services (DYFS) received eight referrals with respect to Y.V., six of which involved allegations of physical abuse. DYFS responded and investigated each referral, not all of which could be substantiated. Y.V. did admit to the use of a belt to discipline her children.
DYFS provided various services to Y.V. as a result of these referrals, including counseling, anger management and parenting classes. These services were implemented in the spring of 2005 after DYFS received a referral with respect to her older son, then nine. She admitted striking him, both with her hand and with a belt and maintained it was her parental right to do so.
The children were removed from Y.V.'s care in July 2006, when Z.M. was four years old and A.V. three. After that initial removal, Y.V. had regular visitation with both girls, some of which took place at a local Y.M.C.A. and some at the DYFS office. DYFS included as a witness the worker who supervised these visits. She testified that she had concerns about the favoritism Y.V. would display during these visits toward the older girl, Z.M. She said she spoke to Y.V. about this issue, but without any improvement on her part.
DYFS also presented the intake worker who had been involved in the referral which led to the children's removal from defendant's care on July 6, 2006. He received a call advising him that Y.V. had been arrested when she assaulted a police officer who had responded to the girls' daycare center in response to a report that Y.V. had beaten A.V. The incident occurred shortly after 9:00. A.V. was taken to the hospital for examination, and the DYFS worker saw her there after 4:00 that afternoon. He said that she still had marks on her arm and shoulder from where Y.V. had grabbed and twisted her arm. A.V. also had scratch marks on her arm and five finger markings on her face.
The four children were removed that day, and the boys were placed with their respective fathers and the girls were placed together with two consecutive foster families. Eventually, in February 2008, the two girls were placed together with their present foster family; the foster mother, J.L., is Y.V.'s cousin.
J.L. testified that when the children came to live with her, A.V. had significant behavior problems and, although nearly six years old, was not potty-trained, did not know her letters, her numbers or her colors. She said A.V. regularly suffered from nightmares, expressing fears of a monster coming after her. She said she heard A.V. speaking to her therapist and identifying this "monster" as Y.V. She also said she witnessed the same preferential treatment that Y.V. would give to Z.M. over A.V. that the DYFS case worker observed when she supervised visitation.
Shortly after the girls had been removed from Y.V.'s care, DYFS had them evaluated, and both were diagnosed with ADHD. By the time of trial, A.V.'s behavior had significantly improved, she was doing well in school, and Z.M. was no longer considered to have ADHD.
The girls had regular visitation with Y.V. at J.L.'s home for some time after they came to live with J.L. A.V. acted up so badly immediately before and after these visits that the site was changed at J.L.'s request. In July 2008, Z.M. returned from a visit and reported that Y.V., while giving her a bath, had inserted her finger into the girl's vagina and twisted it. Visitation then ceased to permit an evaluation to determine whether these visits were harmful to the girls. Y.V.'s visits with A.V. never resumed although they did with Z.M. after she subsequently recanted the allegation.
DYFS presented Rachel Nelson, Ph.D., as an expert witness. Dr. Nelson evaluated Y.V., performed a bonding evaluation between Y.V. and Z.M. and between Z.M., A.V. and their foster parents. She conducted these evaluations in August and September of 2009. Dr. Nelson testified that Y.V. had been involved in a series of relationships, some of which were of very brief duration and some of which were marked by domestic violence. She administered a wide variety of tests to Y.V. The Adult Adolescent Parenting Inventory showed that despite the fact that Y.V. had completed parenting classes, she still had "very significant and substantial deficits in parental fitness and her understanding of child bearing [sic] issues, responsibilities and obligations . . . ."
Dr. Nelson also administered the Child Abuse Potential Inventory. She testified that the results indicated that Y.V. was trying to present herself "in an exaggerated, positive, favorable light." On this test she earned "significant scores" on the rigidity scale and problems with child and self scale.
In addition, Dr. Nelson gave Y.V. the MMPI, Minnesota Multiphasic Personality Inventory. The results of this test also indicated that Y.V. was attempting to present herself "in an unrealistically positive and favorable light." Dr. Nelson testified in the following manner with respect to the results of this test:
Despite the fact that she attempted to present herself as favorably as possible, she earned significantly high scores on the histrionic scale and she earned moderately high scores on other sub scales, including narcissistic behavior, sadistic aggressive behavior, passive aggressive behavior and other areas that suggest that she has a hard time expressing anger, recognizing anger, that she has a hard time recognizing her behavior and its impact on others. That she tends to need to be very colorful, very--the center of attention in her social group and that there is a potential for her to satisfy her own needs for attention and affection and recognition at the expense of recognizing the needs of her children. . . . .
It would affect a person's ability to parent to the extent that they don't differentiate between their needs and drives and that of their children. They tend to see them as one and the same. And so, when they are different, people who have this kind of personality structure, often don't recognize those differences and don't realize that they need to respond differently to the children than they do to themselves.
It often causes them to misinterpret and misunderstand children's behavior, behavior of other people and so if they misinterpret and misunderstand those behaviors, they're likely to respond inappropriately.
Dr. Nelson gave two more tests, the Rorschach ink blot test and the TAT, Thematic Apperception Test. Both revealed rigidity and lack of empathy. She summarized her diagnostic impression thusly:
It is my opinion that she is relatively constricted and rigid in personality structure. That she is focused on her own needs and that she has a very hard time recognizing the needs of her children as separate and different from her own needs and that she has significant parental deficits that would place at risk, any children that were in her care.
Risk for physical abuse. As well as emotional and -- emotional abuse. Not so much neglect in terms of not being fed or not being dressed, but potential emotional abuse, being not validating and not recognizing their feelings and their needs.
Dr. Nelson also conducted a bonding evaluation between Y.V. and Z.M. She testified that in her opinion Z.M. has an insecure attachment to Y.V. She said their behavior was appropriate but there was no indication that Z.M. looked to Y.V. for psychological security; rather, she said, Z.M. was solicitous of Y.V., as if the caretaking roles were reversed.
Dr. Nelson also testified about the bonding evaluation she conducted with Z.M., A.V. and their foster parents. She said that the two girls seemed "to have a stable, healthy, secure relationship and bond with their foster parents." She concluded her testimony by expressing the opinion that the best interests of the girls would be served by terminating Y.V.'s parental rights to permit their adoption by their foster parents.
The children's Law Guardian also presented an expert witness, Allyson Strasser Winston, Ph.D., who had been asked to evaluate Y.V. and the girls to form an opinion whether visits between Y.V. and A.V. should resume and whether termination of Y.V.'s parental rights was appropriate. Dr. Winston also administered a variety of tests to Y.V. She said the results of these tests indicated that the girls should not be reunited with their mother. With respect to A.V. she said that reunification would be traumatic for her. She would really be seriously emotionally affected by it. She's terrified of her mother and clearly does not -- has stated that she does not want to live with her.
As for Z.M., Dr. Winston said she would "also be affected negatively" if she were reunited with her mother.
Additionally, DYFS presented the testimony of Robert Kanen, Psy.D., who evaluated Y.V. on three occasions--May 24, 2007, March 13, 2008, and December 9, 2008. He interviewed her and administered a battery of tests. He described his conclusions after his first evaluation.
I found her to have serious personality problems and at that time I found her to be a very self[-]centered individual, who would have great difficulty empathizing with others, empathizing with children, taking the point of view of other people. I found her to also have an over[-]estimation of her own abilities, relative to her functioning.
Thinking that she actually functions far better than she really does.
I found her to be a self[-]defeating individual and an individual who would have -- when too many demands are placed on her, she would be prone to become angry, abrasive, hostile, belligerent, and when faced with the demands of a child, and in this case if the children have special needs, this would be very, very stressful for her.
By the time Dr. Kanen conducted his second evaluation in March 2008, Y.V. had participated in parenting classes and anger management counseling. He perceived some slight improvement but found that "her capacity to regulate her moods and her conduct was -- was poor or deficient. That's tied into longstanding personality problems that are well ingrained and highly resistant to change."
Dr. Kanen evaluated Y.V. again approximately nine months later. His opinions did not change; he remained of the view that she lacked the ability to provide the children "with a permanent, safe and secure home."
Dr. Kanen's final psychological evaluation occurred in March 2009, when he saw Z.M. and A.V. with their foster parents. He found the girls to be strongly attached to them and flourishing in their care. He said there had been significant improvement in A.V.'s behavior. He testified there was a high risk both girls would regress if they were returned to Y.V.'s care.
Y.V. did not testify at the trial. Nor did she present any witnesses, whether factual or expert.
Following the submission of written briefs, the trial court issued a written opinion in support of its conclusion that Y.V.'s parental rights should be terminated. This appeal followed.
Y.V. raises the following contentions in support of her appeal:
THE EVIDENCE PRESENTED BY THE DIVISION OF YOUTH AND FAMILY SERVICES WAS WHOLLY INSUFFICIENT TO SUPPORT THE TRIAL COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW THAT THE PROVISIONS OF N.J.S.A. 30:4C[-]15.1a (1-4) WERE PROVEN BY CLEAR AND CONVINCING EVIDENCE
THE TRIAL COURT ABUSED ITS DISCRETION IN COMMENCING THE TERMINATION PROCEEDING PRIOR TO REINSTITUTING VISITATION BETWEEN Y.V. AND A.V. AND PENDING A COMPARATIVE BONDING EVALUATION
THE FAILURE TO FOLLOOW [SIC] UP ON THE ISSUE OF A.V.'S THERAPEUTIC VISITATION WITH Y.V. PRIOR TO COMMENCEMENT OF TRIAL RENDERED DEFENSE'S [SIC] COUNSEL'S ASSSITANCE [SIC] INEFFECTIVE
Before proceeding to our analysis of these arguments, we are compelled to note that the trial court did not, as required by Rule 1:7-4, make its own findings of fact. We do not consider the trial court's statement that it "adopt[ed] and incorporate[ed] by reference the FACTS section of the Law Guardian's brief" to constitute compliance with Rule 1:7-4.
To prevail on its claim that an individual's parental rights should be terminated, DYFS must establish, by clear and convincing evidence, the four prongs of the "best interests" test incorporated in N.J.S.A. 30:4C-15.1a: that the child's safety, health or development has been harmed by the parental relationship, N.J.S.A. 30:4C-15.1a(1); the parent is unable or unwilling to eliminate that harm, N.J.S.A. 30:40C-15.1a(2); that DYFS has made reasonable efforts to help the parent eliminate the harm, N.J.S.A. 30:4C-15.1a(3); and that termination of the parent's rights will not do more harm to the child than good, N.J.S.A. 30:4C-15.1a(4).
Although these four prongs "must be evaluated separately as to each child," New Jersey Div. of Youth and Family Servs. v. A.R., 405 N.J. Super. 418, 443 (App. Div. 2009) (citing New Jersey Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 284-85 (2007)), these prongs are not wholly independent of one another. Rather, they overlap to form a unified whole. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999) (noting "The four criteria enumerated in the best interest standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.").
Our review of this record convinces us that the Division satisfied each of these four elements. With respect to the first prong, there is ample proof of the physical and emotional abuse that A.V. suffered at the hands of her mother. Her attorney contends that the incident of July 2006 that led to her removal was no more than a mother's attempt to control a child having a "meltdown" in a public place. We are unable to agree.
By the time the Division's case worker reached the hospital, nearly six hours after the incident occurred, the marks left by Y.V. on her three-year-old daughter's face were still clearly visible. In addition, Y.V. was emotionally abusive to A.V., clearly demonstrating repeatedly that she favored Z.M. to the younger sister.
That Z.M. did not receive the same physical abuse as did her sister does not mean that she also was not harmed by her relationship with Y.V. She was repeatedly exposed to Y.V.'s explosive temper and the physical abuse to which her brothers and sister were subjected. It is clear that this atmosphere of violence caused harm to Z.M.; J.L. testified that when the girls came to live with her, Z.M. would repeatedly torment her sister, both physically and by threatening her that she would have to return to Y.V. By the time of trial, after Z.M. had lived with J.L. for more than a year, that behavior had been alleviated and, indeed, Z.M. was no longer diagnosed as having ADHD.
We are also satisfied that DYFS established the second prong, that Y.V. is unwilling or unable to eliminate the risk of harm she poses to her daughters. It attempted to help Y.V. in a variety of ways, but nothing was effective. Y.V.'s participation with Emergency Child Abuse Prevention ("ECAP") terminated in February 2006 when she persisted in the use of corporal punishment on the children. Dr. Kanen's testimony was clear that despite her participation in counseling and programs, Y.V.'s ability to fulfill a parental role was seriously deficient, not as a result of her own limited intellectual abilities, but as a result of her own limited emotional and psychological development.
With respect to the third prong, the Division made ample efforts to assist Y.V. It provided her with parenting classes, anger management counseling, and regular visitation. Nothing, however, was sufficient to safely permit a reunification of these girls with Y.V.
Finally, we consider the proof overwhelming that termination would not do more harm than good. A.V. has no bond with Y.V.; she remains terribly fearful of her. Z.M. does have a bond, but the testimony was clear that it is weak and that Z.M. does not look to Y.V. as a psychological parent. Rather, as the Division worker testified, their roles were in one sense reversed because Z.M. appeared to be more solicitous of Y.V.'s needs than Y.V. did of Z.M.'s. The testimony was also clear that both girls are attached to their foster mother, have a deep bond with her and have stabilized and progressed since they have lived with her.
We also disagree with Y.V.'s second argument, that the trial court erred when it commenced the guardianship trial without having first reinstituted visitation between Y.V. and A.V. We recognize that the trial court, some time before the actual trial got under way, expressed its concern about the impact on the final outcome if visitation were not resumed between the two. The absence of that visitation did not drive the result in this matter, however.
Visitation was terminated after Z.M. made her allegation of sexual abuse, and the children were sent for evaluations to determine if further visitation would be detrimental to them. The reports of those evaluations were marked into evidence at the trial and are part of the record before us. The recommendation was clearly against any visits between A.V. and her mother. By that time, more than two years had passed since the girls had been removed from Y.V.'s care and custody. The children's status could not remain in limbo for an indefinite period of time; we can perceive no abuse of discretion on the part of the trial court in not ordering further visitation before scheduling the termination trial.
We also reject Y.V.'s argument that the trial court erred in terminating her parental rights with respect to A.V. without having had the benefit of a bonding evaluation conducted between A.V. and Y.V. We recognized in A.R., supra, the possibility of exceptional circumstances in which a comparative bonding evaluation would not be required. A.R., 405 N.J. Super. at 440.
In our judgment, the record demonstrates this is such an exceptional case.
Finally, we reject Y.V.'s final point, that she received ineffective assistance from her trial attorney because he did not actively pursue with the trial court the question of therapeutic visitation between A.V. and Y.V. In New Jersey Division of Youth and Family Services v. B.R., 192 N.J. 301, 308-09 (2007), the Supreme Court recognized that the concept of constitutional entitlement to the effective assistance of counsel was as applicable to actions seeking to terminate an individual's parental rights as it is to a criminal proceeding.
The Court recognized, however, the different policy considerations applicable in a termination proceeding and directed that contrary to the general criminal practice, in which a claim of ineffective assistance of counsel is dealt with in a post-conviction relief proceeding, State v. Preciose, 129 N.J. 451, 460 (1992), such claims should be presented on direct appeal in termination matters. B.R., supra, 192 N.J. at 311. It provided clear guidance as to what must be presented in connection with such a claim.
[A]ppellate counsel must provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the lawyer's performance not been deficient. That will include the requirement of an evidentiary proffer in appropriate cases. For example, if the failure to produce expert or lay witnesses is claimed, appellant will be required to supply certifications from such witnesses regarding the substance of the omitted evidence along with arguments regarding its relevance. [Ibid.]
Y.V.'s claim before us can only be viewed as vague and speculative, far below the specificity the Court has said should be presented to warrant the matter receiving further attention.
The judgment under review is affirmed.
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