On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-146-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 3, 2011
Before Judges Lisa, Sabatino and Alvarez.
Defendant, E.L., appeals from the May 28, 2008 judgment of guardianship terminating his parental rights to his son, B.L., who was born on March 9, 2000. This is the second time defendant's parental rights have been terminated.
The Division of Youth and Family Services (DYFS or Division) filed a guardianship complaint on November 24, 2003, seeking to terminate the parental rights of defendant and B.L.'s mother, R.L. A trial resulted in an April 27, 2005 judgment of guardianship terminating the rights of both parents. They appealed, and on September 12, 2006, we affirmed as to R.L., but reversed and remanded regarding defendant. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).
Judge John J. Callahan presided over the second trial,*fn1 which began on October 29, 2007. After five days of trial, the judge issued a comprehensive oral decision on December 5, 2007. He held that DYFS had satisfied the first prong of the best interests test. However, he declined to make a final determination as to prongs two, three and four, leaving the matter open for further review after a reasonable time for defendant to engage in therapeutic visitation with B.L. Trial resumed on April 23, 2008. After several additional days of trial, Judge Callahan issued another comprehensive oral decision on May 28, 2008. He found that the remaining prongs had been satisfied and entered a judgment of guardianship terminating defendant's parental rights.
On appeal, defendant argues:
THE TRIAL COURT'S DETERMINATION OF THE ULTIMATE FINDINGS SHOULD BE REVIEWED DE NOVO AND THE TRIAL COURT'S DECISION TO TERMINATE PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE TRIAL COURT INCORRECTLY INTERPRETED THE STATUTORY REQUIREMENTS NECESSARY FOR TERMINATION OF PARENTAL RIGHTS.
POINT II: THE TRIAL COURT COMMITTED EVERSABLE [SIC] ERROR WHEN IT REVERSED THE DECISION OF THE APPELLATE COURT AS IT RELATED TO THE APPELLATE COURT'S FACTUAL AND LEGAL CONCLUSIONS IN THIS CASE THIS WAS A CLEAR VIOLATION OF THE LAW OF THE CASE.
A. THE EVIDENCE CLEARLY SHOWED THAT THE INJURIES THAT WERE SUFFERED BY B.L. WAS AS A RESULT OF THE ACTIONS OF HIS MOTHER R.L., THE OVERWHELMING WEIGHT OF THE CLEAR AND UNBIASED EVIDENCE SHOWS THAT E.L. WAS NOT RESPONSIBLE FOR THOSE INJURIES BUT WAS A CONCERNED FATHER WHO SOUGHT TO COMFORT HIS SON EMOTIONALLY AND PROTECT HIS SON AND ALSO THAT EMOTIONAL DIFFICULTY SUFFERED BY B.L. WHILE HE WAS IN FOSTER CARE WAS DIRECTLY ATTRIBUTABLE TO HIS FORCED SEP[A]RATION FROM HIS FATHER AND HIS GRIEF OVER THE LOSS OF HIS BELOVED FATHER.
B. THE TRIAL COURT INCORRECTLY DETERMINED THAT E.L. WAS UNABLE OR UNWILLING TO ELIMINATE THE HARM FACING B.L. AND UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR HIM AND THAT A DELAY IN PERMANENT PLACEMENT WILL ADD TO THE HARM.
C. THE TRIAL COURT INCORRECTLY DETERMINED THAT THE DIVISION HAD MADE REASONABLE EFFORTS TO REUNIFY E.L. AND B.L.
D. THE TRIAL COURT['S] LEGAL DETERMINATION THAT THE PERMANENT TERMINATION OF B.L.'S RELATIONSHIP WITH HIS FATHER WOULD NOT DO MORE HARM THAN GOOD WAS NOT JUSTIFIED WHEN BALANCED AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE SHOWING THE CHILD'S PROFOUND AFFECTION FOR HIS FATHER AND THE DEVASTATING EFFECT THAT THE IMPROVIDENT SEPARATION OF THE CHILD FROM HIS FATHER WAS ON THE CHILD'S EMOTIONAL DEVELOPMENT AS EVIDENT BY THE CHILD'S SMEARING OF FECES OVER HIMSELF WHEN PLACED IN FOSTER CARE, THE CHILD'S CONSTANT TALK ABOUT HIS FATHER, AND THE CHILD WAKING UP IN THE MIDDLE OF THE NIGHT GRIEVING FOR THE LOSS OF HIS FATHER.
We find these arguments unpersuasive. The Law Guardian urged the trial court during the remand proceedings to terminate defendant's rights, and on appeal, the Law Guardian joins the Division in urging us to affirm the termination. We agree with the Law Guardian and the Division and affirm.
The facts regarding B.L.'s removal from his parents' care are set forth in detail in our previous opinion, and we need not repeat them here. We now set forth the relevant facts regarding events that have occurred since that opinion.
In our prior opinion, we held that DYFS had not satisfied prongs one, two or four of N.J.S.A. 30:4C-15.1(a) as to defendant. R.L., supra, 388 N.J. Super. at 102. Citing Division of Youth & Family Services v. M.M., 382 N.J. Super. 264, 282 (App. Div. 2006), rev'd, 189 N.J. 261 (2007), we noted that the fact that defendant believed that his wife did not deliberately injure B.L. "does not in itself indicate an inability or unwillingness to protect B.L." R.L., supra, 388 N.J. Super. at 102. While defendant's hostility toward DYFS and hospital personnel was "also of concern," it did not relate to his ability to parent B.L., "provided there can be some reasonable assurance that he would abide by restrictions placed upon him by the court as to contact with R.L." Ibid. The record revealed that during the six-month period that defendant was sole custodian of B.L., "the child received proper care." Ibid. We had "no doubt that but for the incidents in early July , during which B.L. spent a weekend with R.L., this action would have been concluded three years ago with the child living with his father on a permanent basis." Ibid.
We reversed the order terminating defendant's parental rights, and ordered the following:
There has been no contact between E.L. and B.L. since June 7, 2005, when visitation was terminated. There can be no question that things have changed. In a footnote to its brief, the Division states that B.L. has been living with the same foster family since that time and that he is bonded to them. Of course, that is subject to investigation including a bonding evaluation of the foster parents, which has never been done. E.L.'s present circumstances and ability to parent his son also needs to be reassessed as well as his amenability to accept assistance from DYFS and adhere to all orders of the Family Part judge. An updated psychological evaluation of E.L. and also B.L. should be considered. Therefore, we reverse and remand the matter to the Family Part for proceedings in accordance with this opinion. We do not reserve jurisdiction. [Id. at 102-03.]
After the remand, Dr. Joel Federbush, a psychiatrist, evaluated B.L. at DYFS's request to determine whether visits between B.L. and defendant were in B.L.'s best interests. On June 7, 2005, before we issued our prior opinion, the trial court had ordered visitation between B.L. and defendant to cease. In his December 6, 2006 report, Federbush noted that B.L. was happy, well-adjusted, and appeared to be thriving in his foster home. When asked if he would want to be with defendant, B.L. replied "no - I like it here. This is my family." Federbush recommended that defendant be evaluated by a mental health professional prior to any interaction with his son, and that B.L. continue with psychotherapy to address his emotional, academic and behavioral issues.
DYFS hired psychologist Alice Nadelman to conduct a psychological evaluation of defendant. She met with him alone on December 18, 2006, and with him and B.L. on December 22, 2006. In her January 20, 2007 report, she noted that defendant was cooperative, said he was very happy to see his son and wanted to regain custody, and knew that B.L. would be happy to see him and would want to return to live with him. He said B.L. knew that his foster parents were not his real parents and he was waiting for his father to come for him.
Defendant said they should bring B.L. to court and let him choose where he wanted to be. He did not think that asking a six-year old to choose would be too much pressure. His plan was to regain custody of B.L. as soon as possible. He had a girlfriend, and they were planning to move to a new apartment together. He "seemed surprised" that his girlfriend would have to be seen by DYFS if she were going to become a caregiver for B.L.
Defendant agreed that during his first visit with B.L., he would bring food and gifts as he did at prior visits. He would not ask B.L. to live with him and would not pressure him for physical affection. However, Nadelman noted that "it was difficult for [defendant] to stick to this plan."
Before the visit, Nadelman met alone with B.L. and his foster mother. His foster mother reported that B.L. was glad to have a visit with his father but wanted to stay with his foster family. B.L. asked if his foster mother could stay during the visit, but she explained that it was a special time for him and his father and that she would be outside in the waiting room.
During the visit, B.L. held himself back shyly when defendant hugged and kissed him. Several times, B.L. stated that he wanted to stay with his "mommy." Defendant seemed to think B.L. was referring to his biological mother, and said he would see his mommy next week. Nadelman intervened and said it was important to explain things correctly to B.L. and that he would not see R.L. next week. B.L. pointed to the waiting room and said he wanted to stay with "this Mommy." Defendant then asked B.L. if he wanted to go home with him. Nadelman again intervened, saying that defendant had agreed not to ask B.L. those kinds of questions.
B.L. asked to go see his foster mother in the waiting room. Nadelman explained to defendant that it was very difficult for both him and B.L. because B.L. knew that what he wanted was not the same as what defendant wanted. Defendant asked to have the foster mother come into the room so they could talk. B.L. ran to her, and again said that he wanted to stay with her. Defendant said that was okay and that they would have more visits.
Nadelman concluded that it was a positive reunion after eighteen months of no contact. B.L.'s behavior was consistent with his foster mother's report that he was willing to visit with his father but did not want to leave his foster family. Nadelman credited defendant with trying to understand B.L.'s feelings and to comfort him. However, his statements that he would like to take B.L. back to live with him, and that B.L. would see his biological mother, R.L., upset B.L., who became more distant and stiff.
Nadelman recommended that the visits between defendant and B.L. continue with DYFS supervision. She also recommended counseling for defendant on how to interact with B.L. in a positive and age-appropriate manner, as well as assist him in how to talk to B.L. about the current situation. Nadelman also noted that if full psychological evaluations were needed to make a permanent plan for B.L., they should be completed expeditiously because B.L. was "already anxious and upset about the prospect of leaving his foster family and continued uncertainty will only exacerbate his anxieties and likely cause behavioral problems."
Nadelman also performed psychological and bonding evaluations, which we will discuss later.
Therapy continued for B.L. through Children's Aid & Family Services, Inc. In a November 2006 report, his therapist, Denise Venitelli, reported that B.L. was happy and well-adjusted, and appeared to be thriving in his foster home. She noted that while he had difficulty paying attention and continued to engage in attention-seeking behaviors, he had been better able to use his words in order to express his anger and frustration. B.L. continued to process his anger, sadness and loss with regard to the separation from defendant. He had been able to process his bad dreams through play, and there had been a reduction in his nightmares.
B.L. was assigned a new therapist, Michelle Shoback, on January 2, 2007. In her January 23, 2007 report, Shoback noted that B.L. had had two supervised visits with defendant, and that he had cried at each visit but was able to be calmed down. B.L.'s foster family reported that B.L. was feeling torn loyalty between defendant and his foster family. This created anxiety, which was exhibited through B.L. starting to bite his nails soon after the visits began. His foster mother reported that his behavior had improved, and he no longer threatened to harm himself when angry, but he would "stomp, slam the door or threaten to go live with his dad." B.L. was reluctant to participate in counseling with his new therapist initially, but with support from his foster mother, he participated in the sessions and reviewed his life book.
In a July 26, 2007 report, Shoback noted that B.L. continued to visit with defendant bi-monthly. B.L. sometimes stated that he did not wish to visit his dad because it meant he would have to leave school or camp early. Self-esteem issues were evident, and his play reflected some anger.
Following our remand, the case was assigned to a new caseworker, Krista Mellito. She visited monthly with B.L. at his foster home, and also supervised the bi-monthly visitation between B.L. and defendant. E.L. consistently attended visitation. B.L. repeatedly told Mellito that he wanted to live with his foster family. However, he also said that he liked visiting with his father, and at one point cried after a visit had ended, saying "I do not want to leave my birth father."
After the visit where B.L. cried about leaving defendant, the foster mother stated that B.L. had not wanted to visit with his father and that she did not know why B.L. cried. She felt defendant, who had brought B.L. several toys, was "buying" B.L.'s love. On another occasion, Mellito asked B.L. how he had liked visiting with his father that day, and B.L. said he had fun playing basketball with him. However, the foster mother said B.L. had told her that morning he did not want to visit with his father any more, but he did not want to hurt his feelings. On May 24, 2007, the foster mother reported that B.L. had started to wet the bed again, had nightmares, and was biting his nails.
Mellito observed that B.L. showed affection toward his father during the visits. On January 25, 2007, they "gave each other a hug." On February 8, 2007, B.L. "laughed and gave hugs to his father" while they played basketball.
Mellito did report several concerns during various visits. On May 24, 2007, defendant brought B.L. a water gun but kept saying "It is mine not yours." B.L. got upset, and Mellito asked defendant why he would bring in a toy and not let B.L. have it. Defendant replied he was "just joking."
Defendant then used his phone to call B.L.'s brother in Ghana. B.L. talked to his brother, and then gave defendant the phone and sat in his chair while defendant talked. Mellito asked defendant to hang up the phone and engage with B.L. Defendant continued to talk on the phone for another five minutes. Mellito told him that next time cell phones would not be allowed because the visits were strictly for him and B.L., but left the issue alone because defendant did not seem to understand what she was talking about. Defendant and B.L. then sat at the table in silence while eating.
During a June 20, 2007 visit, defendant and B.L. were playing basketball. B.L. was laughing with defendant, but defendant kept telling B.L. he was cheating because he was not by the wall. B.L. moved closer to the basket so he could make the shot. Later in the visit, defendant became very angry with Mellito because she had never told him that B.L. was graduating from first grade the next day.
On a July 17, 2007 visit, defendant arrived late and appeared to be angry. He said "hi" to B.L. and then watched him eat in silence. However, after B.L. ate, the two played basketball.
During an October 9, 2007 visit, B.L. wanted to play with a truck but defendant kept saying "I am not playing with you because you lied to me today." When Mellito asked what B.L. lied about, defendant said that B.L. had said the day before that he would bring a book so they could read together during the visit. B.L. said the book was in his bag, but he wanted to play and not to read. Mellito suggested they play instead of reading, and defendant said that was fine but that B.L. "still lied to me."
Mellito also reported that on June 20, 2007, R.L. came by the DYFS office and dropped off a foster care application. R.L. said she filled out the application because she wanted to adopt her son, B.L. Mellito told her that she cannot adopt her own biological son.
At trial, Mellito testified that the foster mother waited outside during the visits because B.L. wanted to make sure he was going home with her. Mellito also reported that the foster parents want to adopt B.L., and agreed to maintain contact with defendant.
In March 2007, DYFS referred defendant for counseling at Family Connections. In a May 22, 2007 update, his counselor, Alissa Feldman, reported that defendant was "friendly and cooperative" and had attended all scheduled appointments. However, he stated he was doing so "solely in the interest of regaining custody of" B.L., and was "unable to identify any personal issues or treatment goals to be addressed in therapy." Feldman recommended referring defendant to a parenting class, as that might be more beneficial in meeting his needs. At trial, his DYFS caseworker testified that she discussed the parenting class referral with defendant, but did not make the referral because he stated that he had already completed the classes.
Feldman provided updated reports on July 12, 2007, and October 10, 2007. As of October 2007, defendant had attended fifteen of eighteen scheduled appointments. He continued to be "compliant and cooperative." He was more engaged and trusting of Feldman, which had allowed him to more openly discuss his history with DYFS and the current court involvement. She concluded that he would benefit from continued therapy. If reunification was under consideration, the Reunity House Program might be an appropriate service to offer defendant and B.L.
Nadelman performed a psychological evaluation of defendant, and bonding evaluations of defendant and B.L., and B.L. and his foster family. She provided a written report and testified at trial.
Nadelman performed her evaluation of defendant after meeting with him for eight hours over four visits, from December 2006 through March 2007. He presented as a concerned father who still believed that B.L.'s multiple injuries as an infant were caused by the hospital or a DYFS conspiracy against him and R.L. Defendant did not protect B.L. when he was in his care four years earlier, and he did not indicate that he had learned how to protect his son or how to recognize potential danger.
For example, he refused to discuss B.L.'s repeated fractures, then blurted out, "DYFS is responsible." Nadelman opined that he could not be considered a safe caregiver for B.L. unless he was willing to provide a logical explanation for how B.L. was hurt in his care, and to develop a plan to protect him in the future.
When asked what he would do if B.L. told him that defendant's girlfriend had hurt him, defendant responded "that would never happen." This statement reflected the same position he took in regard to his wife. Thus, there was no indication that defendant had remediated the problems of denial, disbelief and lack of protection that resulted in B.L.'s injuries. Also, during the bonding evaluation, which we will later discuss, defendant's harsh and critical treatment of B.L. was frightening to B.L. and reflected defendant's lack of understanding of his son's needs.
Defendant also continued to believe that B.L. would have little negative reaction to leaving his foster family of two and a half years, despite B.L. explicitly stating that he wished to remain with them. This also reflected a lack of understanding of his son's needs and feelings. He viewed B.L. as being what he, as a father, wanted his son to be - obedient, loyal, and wanting whatever his father wants - rather than a separate individual with his own feelings. He did not demonstrate the capacity to help B.L. with the grieving process, and would likely be impatient or angry with B.L. if he were to show sadness about leaving his foster family. Thus, Nadelman concluded that defendant did not demonstrate the capacity to become a competent or safe caregiver for his son.
Nadelman also performed a bonding evaluation of defendant and B.L. on March 8, 2007. B.L. arrived and began eating the food brought by his father in silence. When he finished eating, he got up to play and took out some bowling pins. Defendant helped B.L. set up the game, and watched him roll the ball and knock down several pins. Defendant repeatedly told him not to cheat and to stand farther back from the pins. There was no conversation or laughing during the game.
Later, defendant quizzed B.L. on various items in a book. Nadelman characterized this interaction as having "little pleasure between them and significant tension as [B.L.] struggled to figure out the correct answers." Nadelman observed that "[o]nly when [defendant] tickeled or rough-housed with [B.L.] did they seem to be having fun, but [defendant] seemed to prefer structured activities."
Defendant frightened B.L. when he referred to the head of a Barbie doll as B.L.'s girlfriend, and said "see, you broke the neck of your girlfriend . . . . They're going to charge you with murder!" B.L. looked frightened, until defendant started laughing. Later in the visit, after B.L. had been playing on the floor, defendant criticized his dirty pants in a loud voice, and B.L. "seemed near tears." After defendant left the room, Nadelman noted that B.L. had no reaction to his father leaving the room, and said he did not want to go look for him.
In comparing their interactions with the first visit she had observed in December 2006, Nadelman found there were few indications of developing closeness and attachment. Instead, defendant "commanded affection, directed rather than interacted and criticized frequently." They displayed little spontaneous pleasure in being together. B.L. did not look to defendant "for fun, help or comfort." Defendant was critical of B.L., instead of being supportive or encouraging, and did not seem to notice this was upsetting to B.L. Nadelman noted that one improvement from the first visit was that defendant did not overwhelm B.L. with physical affection.
Nadelman also observed B.L. with his foster family. She found that there "were many indications of attachment, closeness and trust between [B.L.] and his foster family." He was "strikingly different" with them from when he had been with defendant. He was "relaxed, spontaneous, outgoing and talkative, in contrast to his tense, silent and stiff demeanor with his father." His foster parents gave him directions "gently but clearly" and B.L. followed them. There was spontaneous affection, mostly initiated by B.L.
Nadelman concluded that B.L. "had clearly become an integral part of his foster family." B.L. had spent the first three years of his life moving between his parents' home, hospitals, relatives' homes and foster homes, and this was "the first real stability and safety he has known." Thus, it was healthy for B.L. to want to remain with ...