December 20, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
D.J.W AND M.M.W, DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF J.W., T.W., J.W., C.W. AND C.W., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-59-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2010 - Decided Before Judges Rodriguez and LeWinn.
In these consolidated matters, M.M.W., the biological mother, and D.J.W., the biological father, appeal from a judgment terminating their parental rights to their five children who currently range in age from eleven to two-and-a-half years old. We affirm both appeals.
The Division of Youth and Family Services (DYFS) first became involved with the family in February 2001, when the agency effectuated an emergency removal of the parties' two children who had been left at home alone while defendants were drinking at a local tavern. At that time defendants were both arrested and charged with endangering the welfare of minors. The children were "physically dirty" at the time of their removal; the home was also in disarray, with beer bottles and marijuana in open view. Because no relatives were willing or able to assume care of the two children, DYFS placed them in an emergency shelter.
The children were treated for a variety of medical conditions; the elder child was diagnosed with cerebral palsey, and both were determined to have had fetal alcohol syndrome.
DYFS filed its first abuse/neglect complaint against defendants on February 13, 2001, and offered them services including substance abuse counseling and psychological evaluations. D.J.W., however, was uncooperative with the evaluations and denied engaging in any conduct that led to the removal of the children.
In March 2001, Dr. Robert Puglia performed a psychological evaluation of M.M.W. and concluded that she tended to "minimize her responsibility for having left her two young children . . . [unattended] for several hours," and that her "attempts to distort the truth . . . indicate a lack of remorse as well as attempts to manipulate the outcome of th[e] assessment." Puglia recommended several programs for M.M.W., including parenting classes and anger management. She attended only three of twelve parenting class sessions and did not attend the anger management program in 2001, but increased her attendance at both programs in 2002.
Defendants were permitted supervised visitation with the children between May 2001 and January 2002; M.M.W. attended approximately two-thirds of those visits, while D.J.W. attended less than one-third of the visits.
DYFS filed its first guardianship complaint on April 18, 2002, alleging that defendants were incapable of providing a safe and stable home for the two children. In support of its complaint, DYFS noted defendants' pattern of noncompliance with services.
The two children were returned to M.M.W.'s custody on June 3, 2004, because she had become more compliant with services. Also, an evaluation by Dr. Alan Gordon concluded that the children were bonded to M.M.W. and that her parental rights should not be terminated because she "appear[ed] to be making strides toward reunification." The children's return was expressly made upon the condition that they have no contact with D.J.W., whose whereabouts were purportedly unknown to M.M.W. at that time. The pending guardianship complaint was dismissed.
M.M.W. had given birth to defendants' third child in February 2003. DYFS, however, did not learn of this child's existence until 2005 because M.M.W. told caseworkers that the child was her nephew.
In October 2005 defendants' landlord contacted DYFS and reported that there were three children in the home and he had seen both defendants intoxicated in front of the children; he also witnessed defendants fighting in the children's presence.
When caseworkers met with M.M.W., she continued to insist that the youngest child was her nephew; she also stated that D.J.W. worked in Pennsylvania but acknowledged that he stayed in the home once or twice a week. Later during that meeting, M.M.W. admitted that the youngest child was her son by D.J.W.
DYFS removed all three children, placing the two older children in one foster home, and the youngest in another. The older two children were eventually placed in separate therapeutic homes, and both moved through multiple foster homes because of behavior issues.
On October 21, 2005, DYFS filed its second abuse/neglect complaint; defendants were ordered to submit to psychological, psychiatric and substance abuse evaluations and to comply with recommended treatments. M.M.W. was permitted to have supervised visitation with the children.
The two older children were found to be medically fragile and suffering from a number of neurological and behavioral conditions that required immediate and ongoing attention. Assessments obtained at this time reported that "no medical care or follow-up on recommendations/therapies [were] provided" to the children since they had been reunified with M.M.W. in 2004.
In January 2006, the court found that M.M.W. had failed to protect the children and had violated prior court orders by permitting D.J.W. to have contact with the children. Therefore, the court approved a permanency plan calling for the termination of both defendants' parental rights; notwithstanding this order, the court required DYFS to continue to explore the possibility of reunification with M.M.W.
Dr. Puglia conducted an updated psychological evaluation of M.M.W. in February 2006. He reported that M.M.W. denied having any problems with alcohol, questioned the validity of the children's medical diagnoses and appeared "to be unaware of the nature and severity of [the children's] disabilities." Puglia had "serious problems with the credibility and reliability" of M.M.W.'s statements. He concluded that she did not suffer from any mental or emotional disabilities that would affect her ability to parent, but opined that notwithstanding her desire for reunification, "the strength of this commitment, her motivation to do so, and her ability to follow through with additional evaluations, treatments and monitoring . . . [were] highly questionable given her past behavioral patterns in this regard."
In April 2006, M.M.W. gave birth to her fourth child with D.J.W.; however, defendants also kept this child's birth unknown to DYFS until November 2006 when a caseworker conducted an unannounced home visit.
On May 3, 2006, the three eldest children were returned to M.M.W.'s custody, once again on the condition that D.J.W. not have any contact with the family. DYFS continued to provide services to the family and conducted several follow-up visits. The court dismissed the pending complaint on August 9, 2006.
Between November 2006 and January 2008 when the children were removed from defendants' custody for the final time, DYFS continued to monitor the family. In December 2006, Dr. Alan Lee conducted a psychological evaluation of D.J.W. and found "very clear evidence of his entrenched and evasive and maladaptive character traits that include his history of antisocial behavior and attitudes, anger and hostility problems, impulsivity, emotional explosiveness, poor relationship functioning, . . . and . . . very simplistic patterns of denial and minimization and distortion adversely impacting his overall functioning." Lee concluded that D.J.W. "is not supported as an independent caregiver to a minor child at this time or even within [the] foreseeable future, especially in light of his rather blatant views that he does not need to change." Lee opined that D.J.W. presented a "risk for physical and emotional harm and neglect" if permitted unsupervised contact with the children. Although he recommended numerous services for D.J.W., including the use of psychotropic medications, Lee found "little genuine or significant likelihood that [D.J.W.] would be fully cooperative or make significant or lasting changes."
The children's final removal was triggered by a referral from their school, reporting that one of the older children had come to school with a bruise under his right eye and had admitted that D.J.W. had struck him. Upon investigation, DYFS caseworker Dan Transue learned that D.J.W. had had unsupervised contact with the children while M.M.W. was working, and physically assaulted the children.
Transue and DYFS caseworker Joseph Vasconcelos went to M.M.W.'s residence and found D.J.W. present. Defendants were evasive and argumentative with the two caseworkers, denying how much alcohol D.J.W. had consumed, notwithstanding evidence to the contrary, and also denying that D.J.W had injured the children.
DYFS reported the incidents of D.J.W.'s physical abuse of the children to the Ocean County Prosecutor's Office. D.J.W. was indicted on four counts of second-degree child endangerment as well as third-degree aggravated assault. M.M.W. was also charged with four counts of second-degree child endangerment. Pursuant to plea agreements, D.J.W. pled guilty to third-degree aggravated assault and in January 2008, was sentenced to a term of four years in prison; M.M.W. pled guilty to fourth-degree endangering the welfare of the child and received probation.
On January 11, 2008, DYFS filed its third neglect complaint against defendants. Following a hearing during which Transue testified and pictures of the children's injuries were introduced into evidence, the court found "by a preponderance of the credible evidence that these children were being abused and neglected." The court characterized the matter as "an aggravated circumstances case" and ordered DYFS not to provide services to defendants because the children had been so "severely damaged." The court also prohibited any visitation until a permanency plan had been developed.
DYFS amended its complaint in March 2008 to add defendants' fifth child who had been born a few days earlier. That child was placed in a foster-adoptive home immediately upon discharge from the hospital.
On April 10, 2008, DYFS initiated the guardianship action leading to the judgment on appeal. The neglect complaint was dismissed on June 12, 2008, in light of that guardianship complaint.
The court continued to relieve DYFS of its obligation to provide services to defendants until all evaluations were completed. The court directed defendants to undergo psychological assessments with Dr. William Coffey and deferred any bonding evaluations until all of the children had been fully assessed.
The children's assessments indicated that they suffered variously from: (1) hallucinations and violent nightmares while in defendants' custody, which abated upon their removal; (2) severe emotional trauma; (3) behavioral issues; and (4) neurological difficulties. The older children had clearly been traumatized by the cycle of removal and return to M.M.W.'s custody.
Dr. Coffey submitted his psychological evaluations of defendants on December 2008. His reports were based solely on the results of tests he had administered to defendants in June 2008, because they failed to keep follow-up appointments notwithstanding the court's order.
Coffey reported that D.J.W. had poor insight, refused to accept responsibility for his actions and had a poor prognosis for change; the doctor recommended against even supervised contact between the children and D.J.W.
With respect to M.M.W., Coffey opined that she tended to "minimize the nature of her problems and . . . show[ed] no insight into her behavior and the impact that it has had on her children." He diagnosed M.M.W. with a "psychopathic personality, which is an ingrained, enduring character flaw that continues to affect her insight, judgment, and behavior," as evidenced by her inability even to "minimally comply with an evaluation, despite the gravity of her current circumstances." Coffey concluded that M.M.W. would pose an ongoing risk to the children and would not be a suitable caretaker either "independently or under supervision."
At trial, the court heard testimony from Dr. Coffey and DYFS caseworkers Vasconcelos and Courtney Vainojoe. Vasconcelos, who had worked with the family during the second removal, from February through December 2005, and again from September 2006 through March 2008, testified as to the services DYFS had offered defendants, including substance abuse counseling and psychological evaluations; he indicated that efforts to assist D.J.W. had been hindered because DYFS was unable to maintain contact with him on a consistent basis. Vasconcelos also explained that the children's maternal grandmother had been ruled out as a placement because she had failed in her responsibilities as an in-home supervisor in the past. M.M.W.'s aunt was ruled out because she lived with the grandmother.
Coffey testified and explained the tests he had administered to both defendants; he elaborated upon the findings set forth in his reports.
Vainojoe, a caseworker with the DYFS adoption unit, discussed the referrals and three removals in 2001, 2005 and 2008; he also addressed the services DYFS had offered the family.
Vainojoe also testified as to the status of each of the children. The two older children had initially been placed together in a therapeutic foster home. The oldest child was moved to another therapeutic foster home because of behavior issues, and later was placed in a residential facility in Bergen County where he was living as of the date of trial. The second oldest child had to be removed from the foster home in which he was initially placed due to personal problems experienced by the foster mother; he was in weekly therapy sessions and attending a specialized school as of the time of trial.
The third and fourth children were placed together with a foster family with whom one of the children had lived during the second removal. One child was classified as disabled and was receiving preschool services. The other child, when first removed, weighed only eighteen pounds and had gained five pounds within the first six weeks of foster placement; he was severely developmentally delayed. The foster family had expressed interest in adopting both children.
The youngest child, who was less than one year old at the time of trial, had been placed with another foster family who was willing to adopt him. Vainojoe testified that the child was doing well developmentally in his foster placement.
On May 6, 2009, the court rendered its decision. It addressed the pertinent statutory factors in N.J.S.A. 30:4C-15.1(a)(1) to (4), and concluded that DYFS had presented clear and convincing evidence supporting termination of both defendants' parental rights.
The court indicated some concern for the two older children, noting that during in camera interviews, the children had expressed a desire for reunification with M.M.W.; moreover, the Law Guardian had contended that because these two children had not developed attachments to any foster family as of the time of trial, DYFS had failed to meet the fourth statutory prong with respect to M.M.W., namely that termination of parental rights "will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). Nonetheless, the court terminated defendants' parental rights to these two children, noting that if these children were "not placed in a home which offer[ed] . . . permanency within a reasonable period of time, it may very well warrant a vacating of the termination of [M.M.W.'s] parental rights by way of subsequent proceedings pursuant to Rule 4:50."*fn1
On appeal, both defendants contend that the trial court erred in finding that DYFS had established the four statutory factors by clear and convincing evidence. M.M.W. raises two additional points: (1) that she was denied her due process rights when the court found that the prior neglect proceedings presented aggravating circumstances warranting an order that DYFS discontinue services; and (2) the court committed plain error by considering evaluations submitted into evidence and testimony by DYFS caseworkers not based on firsthand knowledge. We find none of these arguments to have merit.
Appellate review of a judgment terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). We will generally defer to the trial court because it had the opportunity to observe the witnesses, weigh their credibility and develop a "feel" of the case. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007).
Such deference is not appropriate when the decision below "goes so wide of the mark as to be 'clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (citation omitted). Heightened appellate scrutiny is also appropriate when the "'focus of the dispute is not credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom.'" Id. at 189 (citation omitted). Barring such circumstances, however, a reviewing court is bound to defer to the trial court's findings of fact, as long as they are "supported by adequate, substantial, and credible evidence in the record." G.L., supra, 191 N.J. at 605.
With these standards of review in mind, we turn to the contentions advanced by defendants. We consider first their arguments addressed to the statutory factors.
Pursuant to N.J.S.A. 30:4C-15.1(a), parental rights may be terminated if DYFS clearly and convincingly establishes that:
(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 provided 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) [DYFS] 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 factors are highly fact-sensitive, and are "neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." M.M., supra, 189 N.J. at 280 (citation omitted).
We turn first to the claims asserted by D.J.W. The evidence, which is not contradicted by anything other than his denials, demonstrates D.J.W.'s relentless and persistent behavior patterns including chronic alcohol abuse, physical assaults upon the children and non-compliance with DYFS services. The unrebutted psychological evidence clearly establishes his lack of propensity to change. In light of this record, we consider D.J.W.'s arguments regarding the four statutory prongs to lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
D.J.W.'s contention that the court "erred in adopting by reference the findings and conclusions in the earlier [removal] proceedings," also lacks merit. It is clear that in an abuse or neglect fact-finding hearing brought pursuant to Title 9, "DYFS has the burden of establishing abuse or neglect by a preponderance of the evidence." N.J. Div. of Youth & Family Servs. v. R.D., 412 N.J. Super. 389, 402 (App. Div.), certif. granted, 203 N.J. 437 (2010); N.J.S.A. 9:6-8.46(b)(1). In a termination proceeding under Title 30, the burden of proof is clear and convincing evidence. Ibid.; N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 264 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010).
At the conclusion of the hearing following the January 2008 removal, the court found that the children "were, indeed, abused by [defendants]." The court noted that its finding was "by a preponderance of the credible evidence," but added that it "could find by clear and convincing evidence" that abuse and neglect had occurred. Thus, where, as here, "the underlying finding of abuse . . . is made by clear and convincing evidence and not merely by a preponderance of the evidence, it may support a termination of parental rights." R.D., supra, at 402. The trial court properly took into consideration D.J.W.'s entire history from 2001 through 2008 in assessing DYFS's proofs on the statutory factors as applied to him.
Turning to M.M.W.'s arguments, we are likewise satisfied that the record amply supports the court's findings that DYFS had met all four statutory factors by clear and convincing evidence with respect to her.
Regarding the first prong, we reject M.M.W.'s contention that "the primary allegations against [her] are not acts of abuse against the children but allegations of omission[,]
[n]amely . . . not taking enough action to protect the children from the harm inflicted on them by their father." Suffice it to say, M.M.W. repeatedly permitted D.J.W. to return to live with the family in blatant violation of specific court orders, thereby putting the children at risk of physical assaults. In addition, M.M.W. affirmatively attempted to conceal D.J.W.'s presence in the home when DYFS caseworkers visited. Furthermore, the evidence establishes M.M.W.'s own conduct imperiling the children's health, safety and welfare, by her persistent failure to provide for their basic needs, including a safe and clean living environment, nourishment, and medical attention.
We are satisfied that M.M.W.'s "failure to provide continuing care for her child[ren] or to take any measures to help her child[ren] overcome [their] suffering, satisf[ies] the first prong of the statutory test." In re K.H.O, 161 N.J. 337, 352 (1999). "Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." In re K.L.F., 129 N.J. 32, 44 (1992) (emphasis added); see also N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 436 (App. Div. 2009) (mother harmed children by permitting father into home in violation of court orders to the contrary).
Regarding the second statutory prong, we are satisfied that the record is devoid of any evidence that M.M.W. has either the ability to eliminate the harm to the children or the willingness "to provide a safe and stable home" for them. N.J.S.A. 30:4C-15.1(a)(2). The professional assessments of the children documented their serious and pervasive medical and psychological problems, some of which (such as hallucinations and nightmares) abated when the children were removed from their parents' custody.
M.M.W.'s contention that the court erred in concluding that she would resume her relationship with D.J.W. upon his release from prison is of no avail. The role of the trial court in termination decisions is to "determine whether it is reasonably foreseeable that the parent can cease to inflict harm upon the children entrusted to [her] care." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986) (emphasis added), superseded on other grounds as stated in In re Adoption of Children by G.P.B., 161 N.J. 396, 405 (1999). M.M.W. demonstrated a history of violating court orders and deception in dealing with DYFS; such behavior was part of the basis for Coffey's opinion that M.M.W. denied responsibility for the consequences of her conduct. In sum, we are satisfied that the evidence fully supported the court's findings with respect to the second statutory prong.
M.M.W.'s contentions regarding the third statutory prong are two-fold: (1) that DYFS provided no services after the court's order of June 12, 2008; and (2) DYFS did not offer her domestic violence counseling. In light of the record, these arguments are without sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(E), beyond the following comments.
N.J.S.A. 30:4C-11.3(a) provides that DYFS "shall not be required to provide reasonable efforts to reunify the child[ren] with a parent if a court of competent jurisdiction has determined that . . . [t]he parent has subjected the child to aggravated circumstances of abuse, neglect, cruelty or abandonment." As the trial court noted in its decision terminating M.M.W.'s parental rights, there was adequate, substantial, credible evidence in the record to support the conclusion that aggravated circumstances of abuse and cruelty had been clearly and convincingly proved. The guilty pleas by both parents in August, 2008, merely serve[d] to confirm [the prior court's] conclusion that DYFS should be permitted to bypass the statutory obligation of exerting reasonable efforts of reunification. The incidents which led to the last removal were not isolated incidents as can be gleaned from [one child's] statement to the teacher at his school who questioned him as to how he received the injuries to his eye. The child stated, "Dad's hitting us again."
The January 2008 removal of the children did not occur in isolation. It was the third occasion on which DYFS determined that defendants posed such a risk of harm to the children that they could no longer remain in their custody. Reunification had proved to be unwarranted twice in the past. In 2008, therefore, DYFS had no basis to "determine that family reunification [was] in the child[ren]'s best interest[,]" and the agency was thereby relieved of its obligation to provide "reasonable efforts" aimed at such reunification. N.J.S.A. 30:4C-11.3.
[T]he term "aggravated circumstances" embodies the concept that the nature of the abuse or neglect must have been so severe or repetitive that to attempt reunification would jeopardize and compromise the safety of the child[ren], and would place the child[ren] in a position of an unreasonable risk to be reabused. [N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 77 (App. Div. 2003), aff'd in part, modified in part and remanded by 179 N.J. 264 (2004).]
Considering M.M.W.'s long history with DYFS, we share the trial court's lack of confidence that "the offer or receipt of services would correct the conditions that led to the abuse or neglect within a reasonable time."*fn2 Ibid.
With respect to domestic violence counseling, we acknowledge that none was provided, notwithstanding evidence of domestic violence in defendants' household. We are satisfied, however, that this lack in and of itself is insufficient to undermine the court's findings with respect to the third statutory prong. M.M.W. herself repeatedly misled DYFS by asserting that D.J.W. had not returned to the home and that she did not know where he was. DYFS's failure to provide domestic violence counseling, therefore, was as much a result of M.M.W.'s lack of candor as any other factor.
The gravamen of M.M.W.'s argument regarding the fourth statutory prong is that no bonding evaluations were conducted after the 2008 removal of the children. When the court entered its June 12, 2008 order finding aggravating circumstances and suspending services, the court also deferred any bonding evaluations until the children had been fully assessed. Those assessments demonstrated that the four older children were seriously traumatized and psychologically fragile in various ways. The doctors who evaluated the two oldest children specifically recommended against conducting bonding evaluations, noting that both children "required intensive therapeutic interventions to help them . . . [and] a bonding evaluation would most likely be confusing and upsetting to [them]. A bonding evaluation most certainly would increase their uncertainty and disrupt their current sense of security and safety." The evaluations of the other children noted that any further disruption of their placements would likely have long-term deleterious effect on their abilities to form healthy relationships. The youngest child, as noted, has never been in M.M.W.'s custody.
Considering the children's particular needs, resulting directly from their exposure to defendants' abusive and neglectful conduct, notwithstanding the absence of bonding evaluations, we are satisfied that the record supports the finding that the children will not "suffer a greater harm from the termination of ties with [their] natural parents than from the permanent disruption of [their] relationship[s] with [their] foster parents." K.H.O, supra, 161 N.J. at 355.
Finally, M.M.W. contends that the court improperly considered inadmissible hearsay because "most of the reports considered by the court . . . did not have certifications indicating that they were business records nor was there additional testimony to establish that they qualify as admissible reports." M.M.W. did not raise this argument below. Considering it pursuant to the "plain error" standard, we are satisfied that it was not "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. No further discussion of this issue is warranted.