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New Jersey Division of Youth v. X.Z.Z.


February 17, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-95-09.

Per curiam.



Submitted January 19, 2011

Before Judges Wefing, Baxter and Koblitz.

X.Z.Z. is the mother of two children; Laura, now fifteen years old and Ron, now twelve.*fn1 She appeals from a trial court judgment terminating her parental rights with respect to both children. The children's father, M.Z., voluntarily surrendered his parental rights to both children after being sentenced after trial to a fifteen-year prison term for second-degree sexual assault on Laura, N.J.S.A. 2C:14-2(b), and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). X.Z.Z. was charged with witness tampering for asking Laura to lie at her father's trial, and entered into a pre-trial intervention program. The trial court found that X.Z.Z. knew of her husband's sexual abuse of Laura for at least three years and participated in physical abuse of both of her children. After reviewing the record in light of the contentions advanced on appeal, we affirm.

X.Z.Z. was born in China and speaks only Mandarin Chinese and her native dialect. Throughout the involvement of the Division of Youth and Family Services (Division) and the court, Mandarin interpreters were made available to X.Z.Z.

Charmaine Bryant, a Division adoption caseworker, testified that the Division initially became involved when a New York hot-line reported to the Division that a woman had called anonymously asking questions with regard to her husband sexually abusing their daughter. The woman reportedly refused to go to the police and said she would handle it herself. The phone call was traced to X.Z.Z. When the Division went to the home at 10 p.m. on August 22, 2007, X.Z.Z. refused to allow the children to be interviewed. Her husband was not home. Ron interpreted for his mother. Investigator Amy Pisano of the Camden County Prosecutor's Office Child Abuse Unit testified that she came to the home at 11 p.m. that night and spoke to Laura in the presence of a Division worker. Pisano was not able to set up a videotape due to the mother's disruptive behavior. Laura told them that her father had sexually assaulted her the night before, that the assaults had been going on for a while and that her mother knew about the abuse.

At 12:55 a.m. on August 23, Pisano took Laura and Ron to the police department. X.Z.Z. was charged with disorderly conduct when she tried to interfere.

Pisano conducted a videotaped interview with Laura at the police department with a Division worker present for much of the interview.*fn2 Laura reported being anally penetrated by her father for the past two years, since she was in fourth grade and was unsure whether her father sexually abused her in second or third grade. She said she had told her mother, who was embarrassed and tried to protect Laura by installing a lock on her bedroom door. With a Division worker present, Pisano also interviewed Ron, who said he knew that his father sexually abused his sister and that Laura had told their mother about the abuse at least three times.

Later that morning Laura underwent a medical examination with Dr. Monica B. Weiner. Laura told Dr. Weiner that her father first touched her when she was in second grade. Laura told the doctor that she was "[a]bout to join third grade" when she first told her mother about her father sexually touching her. She said she did not want her mother to know because she was embarrassed and thought she would get into trouble. Laura said her father had used condoms when abusing her and that her mother had yelled at her father and purchased a lock for Laura's door.

The same doctor also examined Ron, who told the doctor that his mother often whipped him with a branch-like object and his father slapped his hand and pulled his ears. The doctor recommended that Laura and Ron have no contact with their father and supervised visits with their mother.

The two children were placed in a foster home where they remain. Laura received counseling for nineteen weeks until completion. Supervised visitation in the presence of a Mandarin interpreter began in October 2007. X.Z.Z. refused counseling provided by the Division through Chinese-speaking social workers affiliated with a Chinese church and cultural center in Philadelphia.

Two months after her initial interview, Pisano conducted a follow-up videotaped interview of Laura on October 19, 2007. At this interview, Laura said she began telling her mother about her father sexually abusing her when Laura was in third grade. A Division worker was not present at this interview.

On December 13, 2007, a psychologist evaluated Ron, finding he had anxiety and tension, was discouraged but cooperative and desired reunification with his family.

On April 2, 2008, Laura and Ron both reported to the Division that they had been frequently hit with a stick by both parents. Ron also reported that his father would make him kneel with his hands behind him for long periods of time. Their mother reported that both children were hit on their hands when disciplined. Their father reported that if Laura misbehaved she was locked in the dark basement without dinner. He said he disciplined Ron by making him kneel and think. He said he would hit his children on the hands with bamboo and his wife hit them on their knees. X.Z.Z. denied hitting her children with anything other than her hands.

X.Z.Z. was psychologically evaluated on June 24 and July 1, 2008, by a Chinese-speaking psychologist, Ray-ling Hou, coordinator of the Asian Child and Family Program at the University of Pennsylvania Hospital. Dr. Hou diagnosed X.Z.Z. with depression and recommended that she receive individual psychotherapy once a week to address coping and parenting skills, a psychiatric evaluation for a trial of medication to aid with her depression and family psychotherapy with her children "to address and assess the plan for reunification."

X.Z.Z. was scheduled for subsequent sessions with Dr. Douglas Crawford, a licensed psychologist. She only attended three sessions after which Dr. Crawford reported that [X.Z.Z.] seemed severely idiosyncratic, conjectural and personalized when she noted that DYFS, the courts and her attorney were "just involved in the situation for money." By the third session, she openly declared that the children were told by someone to state that her daughter had been abused by her husband. She maintained that her family was a good family and that the children were not abused.

Dr. Crawford recommended that X.Z.Z. receive a psychiatric evaluation to address the trauma that occurred. He found that her personality features were of "an intense, pervasive and clearly idiosyncratic nature."

On September 11 and September 21, 2008, Dr. Xu Chen, M.D., of Brooklyn, New York, completed psychiatric evaluations of X.Z.Z. During these evaluations, X.Z.Z. denied making the phone call to the agency on August 22, 2007, alleging sexual abuse of her daughter. She denied any misconduct by her husband and said that he was a "caring father." X.Z.Z. also said that she blames herself for not being fully aware of the allegations because she does not understand English. Dr. Chen said that she exhibited "shame" when discussing the incidents. X.Z.Z. speculated to Dr. Chen that Laura was abnormal and that she inherited mental illness from her father's side of the family.

Dr. Chen diagnosed X.Z.Z. with Axis I Adjustment Disorder with Anxiety and Depression R/O Depression Disorder. Dr. Chen recommended that she receive pharmacological treatment for anxiety and depression, further psychological tests to assess her cognitive functioning and thought process to rule out any possible intellectual impairment, and a psychiatric evaluation for Laura and treatment if recommended. He "strongly" recommended that X.Z.Z. receive "continuous psychotherapy for social skill[s], coping skill[s] and management of [the] separation issue with her children and husband."

Visitation between X.Z.Z. and Laura was suspended in September 2008 after it was reported that she advised Laura not to cooperate with the prosecutor's office. Laura told Pisano that X.Z.Z. promised Laura that if she lied during her father's trial she would be able to come home and her bedroom would be redecorated.

With regard to Ron, Dr. Crawford's evaluation concluded with the following conclusions:

1. Mild or sub-syndrome symptoms of adjustment difficulty relative to his natural mother and father are not sufficiently problematic to require treatment in and of [themselves]. Future adjustment to adoption may require, however, intervention.

2. Although reserved and cautious, this personality trait of [Ron's] falls clearly within the range of normality and does not require, in itself, intervention.

3. [Ron] has said numerous positive things about his foster parents and successful continuation in their home will be a function [of] how well the foster parents continue to maintain their ability to nurture this boy.

From May 2009 to September 2009, Dr. Linda Jeffrey, who has significant experience with China and people of Chinese ancestry, conducted four psychiatric evaluations of X.Z.Z. using a MMPI II (Minnesota Multiphasic Personality Inventory II) test written in Chinese and an interpreter. X.Z.Z. did not appear for the first session. During one session, she claimed that she was harassed by the interpreter, and a new interpreter was assigned to the case. Dr. Jeffrey testified that X.Z.Z. said that Laura lied about the incidents of sexual abuse, that Laura had a history of lying like X.Z.Z.'s mother-in-law and had "a little bit of emotional issues" and a bad temper. X.Z.Z. told Dr. Jeffrey that she believes her husband is innocent and that she had good relations with him, loves him and feels he is the kind of person with whom she would want to have a family.

Dr. Jeffrey concluded that even though the father is incarcerated, X.Z.Z. is still unable to safely parent Ron and Laura. Dr. Jeffrey found that X.Z.Z. was "grossly unprepared to provide a minimum level of safe parenting for her children." Dr. Jeffrey found that X.Z.Z. was "not prepared to provide her children with protection and guidance, to differentiate their needs from her needs, or to respect the individuality of the child." Dr. Jeffrey found that X.Z.Z. was not prepared to interact with and provide care for her children in such a way that they are able to meet their developmental tasks. Her children are likely to be at risk for harm in her care. [X.Z.Z.] presents as histrionic, emotionally immature and erratic. Her strengths focus on her work ethic and belief in the importance of education.

Ultimately, Dr. Jeffrey did not recommend that X.Z.Z.'s children be returned to her care. Dr. Jeffrey testified that X.Z.Z. was unable to parent her children because she was self-centered and she refused to engage in therapy. Dr. Jeffrey also opined that X.Z.Z. should have responded sooner to Laura's reports of inappropriate contact by her father. Dr. Jeffrey diagnosed X.Z.Z. with personality disorder NOS with narcissistic, histrionic and antisocial personality features. Dr. Jeffrey also found that X.Z.Z. "has a mixed personality, meaning that she has dysfunctional personality traits from several personality disorders."

X.Z.Z. was psychiatrically hospitalized at Ancora Psychiatric Hospital in October 2009 for stabilization and deemed competent to stand trial for endangering the welfare of a child, N.J.S.A. 2C:24-4(a). X.Z.Z. was subsequently acquitted of that charge after a jury trial.

Dr. Jeffrey also conducted bonding evaluations with X.Z.Z. and her children in July 2009. Dr. Jeffrey noted that X.Z.Z. had not seen the children in many months and the children were "emotionally distant" from her and "did not display delight when they saw her." Dr. Jeffrey also noted that the children "easily parted" from X.Z.Z. at the end of the session.

After conducting the bonding evaluation, Dr. Jeffrey interviewed each child individually. During her interview with Laura, the child said that her mother knew what her father was doing to her and that her mother tried to cover it up. Laura said that she blocks out the sexual abuse from her mind. She also described being hit by her mother and father with a stick when she lived with them. Laura told Dr. Jeffrey that X.Z.Z. told her that her foster parents do not love her and that they were only in it for the money and to tell "those Americans" that she wanted to come home.

Ron told Dr. Jeffrey he was not sure where it would be better for him to live. Ron also said that he felt angry towards his mother for not stopping his father from sexually abusing his sister.

As a result of the bonding evaluation with X.Z.Z. and interviews with the children, Dr. Jeffrey concluded that both children displayed an "insecure attachment" to their mother, "[b]oth children were articulate and displayed strong academic skills," and the children were "highly likely to be at risk for harm in [X.Z.Z.'s] care." Dr. Jeffrey did not recommend that either child be returned to his or her mother's care.

Dr. Jeffrey also conducted a bonding evaluation with the children and their foster parents, which lasted one hour. Dr. Jeffrey concluded that [t]he foster parents provided guidance, structure, reinforcement and limits for the children. The tone of interactions was comfortable, relaxed and pleasant. The children and foster parents appeared to enjoy being with each other. The foster parents described their appreciation for the children's Chinese heritage. They expressed their pleasure to have [Ron] and [Laura] in their home. The foster parents functioned smoothly as a team.

Following the bonding evaluation, Dr. Jeffrey conducted individual interviews of the foster mother, Laura and Ron. The foster mother told Dr. Jeffrey that Laura told her that she had been sexually abused since second grade, that testifying at her birth father's trial had been emotionally difficult for Laura and that neither of Laura's birth parents acknowledged Laura at the trial. She said that her family loved Laura and Ron and that she and her husband wanted to adopt them.

During Dr. Jeffrey's interview with Laura, Laura told her that she had to adjust to the larger number of children in the foster home but that "she felt emotionally closer to the foster mother." She said her foster father was nice to her, that they watched television together and he made her laugh.

Ron told Dr. Jeffrey that he had adjusted to the foster home. He described his foster mother as "nice" and "sweet" and his foster father as caring and said he liked spending time with him. Ron said "he had decided to be okay whether he was adopted by his foster parents or returned to his birth mother. He told himself to stay calm and remember that he had not caused anything to happen." Ron told Dr. Jeffrey that he did not remember his birth father well.

Dr. Jeffrey concluded that Laura and Ron had "made a positive adjustment to living with their foster parents and feel safe and well cared for by their foster parents." She said that the children respond well to their foster parents' parental authority and appear comfortable and relaxed with them. Dr. Jeffrey found that both children were cautious about sharing their feelings because they were uncertain of the outcome of their parents' litigation. Dr. Jeffrey concluded that the children had "achieved a sense of stability and security in their relationships with the foster parents," and that removal of them from the foster home would be "detrimental to them." She recommended that the children remain in the care of their foster parents. Bryant, the Division worker, also testified at trial that the foster siblings and Laura and Ron had a friendly, sibling relationship and that they enjoyed spending time together.

X.Z.Z. raises the following arguments, POINT I



a. DYFS Failed To Prove Harm To The Children.

1. Not Enough Proof of Endangering L.Z.

2. Insufficient Evidence of Mental Illness.

3. No Competent Evidence Of Physical Abuse.

4. No Indirect Harm to R.Z.

b. X.Z.[Z.] Had Provided, And Was Willing To Provide, A Safe And Stable Home.

1. L.Z.

2. Physical Harm.

c. DYFS Did Not Provide Reasonable Services and the Trial Court Failed to Consider Alternatives to Termination.

d. DYFS Did Not Prove That Terminating Rights Would Not Do More Harm Than Good.


The Division called four witnesses at trial: Dr. Jeffrey, the board certified psychologist who performed the psychological and bonding evaluations; Bryant, the Division adoption caseworker; Michelle Sanders, a prior Division caseworker; and Pisano, an investigator from the Camden County Prosecutors Office Child Abuse Unit. Neither the mother nor the law guardian called any witnesses. Arguing that it contains inadmissible hearsay, X.Z.Z. objects for the first time on appeal to the trial court's admission into evidence of Exhibit P-22, which is composed of the reports prepared by Pisano as well as two of Pisano's transcribed interviews with Laura on August 23, 2007, and October 19, 2007. At trial, the court asked X.Z.Z.'s counsel whether she had any objection to the admission of the Division's Exhibits P-1 through P-23, and counsel stated that she had none. X.Z.Z. argues that all of Laura's statements in P-22 are inadmissible because Laura did not testify at trial and Pisano, who did testify, was not an expert retained by the Division. See R. 5:12-4; N.J. Div. of Youth & Family Servs. v I.Y.A., 400 N.J. Super. 77, 90-91 (App. Div. 2008). Specifically, X.Z.Z. argues that Laura's statement to Pisano that her mother knew that her father was sexually abusing her is inadmissible for the truth of the matter asserted.

At trial, defendant did not object to Pisano's testimony relating Laura's statements, and therefore we review the admissibility of the statements under the plain error standard set forth in Rule 2:10-2. We will only reverse a trial judge's admissibility determination if the error "had the clear capacity for producing an unjust result." N.J. Div. of Youth & Family Servs. v. N.S. & R., 412 N.J. Super. 593, 622 (App. Div. 2010) (internal quotations marks and citations omitted). In N.S., we held that it was not reversible error in an abuse and neglect proceeding for the court to consider a statement made by a child during an interview with the prosecutor's office where a Division worker was present. The Division worker testified to the child's statements during the interview but the child did not testify. We found that the introduction of the child's statements made at the interview was not plain error because there was additional evidence supporting the court's findings of abuse and neglect. Id. at 621-24.

In finding that X.Z.Z. knew that her husband was sexually abusing her daughter for at least three years, the trial court relied heavily on Pisano's testimony and reports.*fn3 Although we find that it was error to permit the investigator to testify to Laura's statements, we find the error to be harmless because the record contains evidence corroborating all of the statements Laura made to Pisano regarding her parents' abusive behavior.

Subjecting a child to multiple interviews conducted by various individuals should be avoided when investigating abuse and neglect allegations. See State v. Michaels, 136 N.J. 299, 321 (1994). The Division and the prosecutor's office often conduct joint investigations in response to these types of allegations. N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 63 (App. Div. 2002); N.J.S.A. 9:6-8.104 (requiring the establishment of "county-based multidisciplinary teams which work in conjunction with the county prosecutor and the Department of Children and Families in the investigation of child abuse and neglect . . ."). Both of the transcribed interviews with Pisano were videotaped and available to defense counsel. A Division worker was present during a significant portion of Laura's first interview with Pisano. The Division worker's report was admitted into evidence recounting the substantive information provided by Laura. X.Z.Z. does not object to the admission of this Division report.*fn4 The report states that Laura told her mother about her father sexually abusing her and that her mother tried to protect her but was unable to make Laura's father stop the abuse.

Laura repeated and elaborated on her description of the abuse to two doctors, whose detailed reports were admitted into evidence. X.Z.Z. does not object to the admission of these reports, which were admitted into evidence as Exhibit P-9. Laura told Dr. Weiner, who examined her the night she was removed from her home, that she first told her mother about her father sexually touching her just before she began third grade. Laura told Dr. Jeffrey, a psychologist retained by the Division who testified at trial, that her mother knew of the sexual abuse but tried to cover it up. She also told Dr. Jeffrey that "her mother did not stop her father's sexual abuse of her and neither parent apologized about it." Ron also told Dr. Jeffrey that "he felt angry at his mother for not stopping the abuse of [Laura]."


X.Z.Z. also argues that the State failed to meet by clear and convincing evidence each of the four prongs necessary to terminate parental rights. While parents have a fundamental right to raise their biological children, these rights are not absolute and may be tempered by the State's responsibility to protect the welfare of the children. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). The termination of a parent's right to raise his or her child is a matter of constitutional magnitude. See id. at 346; see also In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992). "To terminate parental rights and obtain guardianship of a child who has been placed in foster care, DYFS may file a complaint under N.J.S.A. 30:4C-15(c) alleging that termination is in 'the best interests' of the child, or under subsection 15(d) alleging that the parents abandoned the child." N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 60 (App. Div. 2010) (citing In re Guardianship of K.L.F., 129 N.J. 32, 36-37 (1992)). "Where the complaint is brought under the best interests of the child section of the statute, guardianship cannot be awarded . . . unless the court itself determines that it is in the child's best interests under N.J.S.A. 34:4C-20." Id. at 60 (citations omitted).

"Termination actions brought under N.J.S.A. 30:4C-15.1(a) are decided under a four-prong 'best interests of the child' standard, first enunciated by the Court in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-11 (1986), and now codified in N.J.S.A. 30:4C-15.1(a)." Id. at 61. To terminate parental rights under that standard, the State must present clear and convincing evidence of the following:

(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 [D]ivision 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-15.1(a).]

The "four [prongs] enumerated in the best interests 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." K.H.O., supra, 161 N.J. at 348.

Our scope of review of a trial court's termination of parental rights is limited to "determin[ing] whether a trial court's decision . . . was based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004) (citations omitted). We will not disturb a trial court's factual findings "'unless they are so wholly unsupportable as to result in a denial of justice.'" Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)).

The court found that X.Z.Z. knew that her husband was sexually abusing Laura for at least three years before calling the New York hotline anonymously. Over this time X.Z.Z. failed to protect Laura. The court also found that X.Z.Z. hit both of her children repeatedly. The court found that, contrary to court order, X.Z.Z. continued to discuss the parallel criminal litigation with the children during visits, asking Laura to lie.

X.Z.Z. only cooperated intermittently with services provided by the Division. The court found that her unstable emotional and mental health prevented her from acting as a responsible parent.

The court also found that by failing to protect Laura from sexual abuse, X.Z.Z. also exposed Ron to a high probability of abuse or neglect, especially because Ron was aware of his sister's treatment. She also failed to protect both children from other physical abuse and participated herself in hitting both children.

Defendant contends that the Division failed to establish the first prong of the test, that the parental relationship has endangered the children's health and development, and that the trial court should have considered the Chinese culture in making its finding regarding this prong. Under this prong, the "relevant inquiry focuses on the cumulative effect, over time, of harms arising from the home life provided by the parent." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 289 (2007). X.Z.Z. did not protect Laura from her father's sexual abuse for three years, and her failure to mitigate this harm also made Ron, who was aware of the abuse, susceptible to emotional and psychological harm. See id. at 288 ("A parent is unfit if he or she is unable or unwilling to prevent harm to the child irrespective of the source of the harm."). The continuous and repetitive abuse of Laura is probative with respect to the abuse and neglect of Ron. N.J.S.A. 9:6-8.46; see N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576 (App. Div.), certif. denied, 192 N.J. 68 (2007); see also J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App. Div.) (finding that parents' "past and continuous course of neglect to two of their three children should and does result in the forfeiture of their parental rights to [their third child]"), certif. denied, 77 N.J. 490 (1978). The physical abuse of the children coupled with the emotional and psychological harm they experienced while in the care of X.Z.Z. constitutes significant evidence that the parental relationship endangered the children. Although X.Z.Z.'s Chinese customs may conflict with New Jersey law, she presented no such evidence; even if she had attempted to present such evidence, it could not obviate the harm to her children. See S.D. v. M.J.R., 415 N.J. Super. 417, 439 (App. Div. 2010) (where we refused to excuse a defendant's acts of domestic violence because he believed his behavior was permitted by his religion).

Similarly, we consider the proof presented with respect to the second prong, whether X.Z.Z. has cured or overcome the initial harm she caused to her children and is now able to parent them safely, to be equally significant. X.Z.Z. only attended three therapy sessions after which she repeatedly accused Laura of lying about the sexual abuse and indicated that she would allow her husband back into their home. Although her husband was convicted at trial and will remain incarcerated for the next twelve years, her refusal to acknowledge his abusive behavior indicates that X.Z.Z. is not willing or able to provide her children with the safe and stable home that they need.

We also reject defendant's argument regarding the third prong, that the Division failed to provide reasonable services to her. The Division made extensive efforts to accommodate X.Z.Z. by offering supervised visits, therapeutic services provided by Chinese-speaking social workers, which X.Z.Z. refused, and a Chinese-speaking psychiatrist. The Division provided interpreters at all of X.Z.Z.'s evaluations. At one psychiatric evaluation with Dr. Jeffrey, X.Z.Z. accused the interpreter of harassing her, and a new interpreter was assigned to assist. Dr. Jeffrey had significant experience with Chinese culture and had visited China twice. Dr. Jeffrey also administered the MMPI in Chinese. The success of these services is not determinative of the sufficiency of the Division's efforts. In re Guardianship of DMH, 161 N.J. 365, 393 (1999).

It is also abundantly clear that Laura and Ron will not suffer harm from the termination of X.Z.Z.'s parental rights. Removing the children from their foster home and placing them in

X.Z.Z.'s care would put them at a much greater risk of harm. Affirmed.

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