June 29, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
L.B. AND S.C., DEFENDANTS-APPELLANTS. IN THE MATTER OF THE GUARDIANSHIP OF R.B., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-65-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 17, 2011
Before Judges Carchman, Messano, and Waugh.
Defendants S.C. (Sharon) and L.B. (Louis) appeal from the final judgment of guardianship terminating their parental rights to their daughter R.B. (Robin), now four years old.*fn1 We affirm.
We discern the following facts and procedural history from the record on appeal.
Robin was born on March 22, 2007. At that time, Sharon was twenty-two years old, and Louis was thirty-one. Sharon was living in an apartment in Lawnside. She had completed eighth grade, was unemployed, and had no other children. Sharon and Louis resided together periodically during Robin's first six months of life. Louis helped care for Robin, and participated in her late night feedings by preparing bottles of formula.
Louis has a GED and was also unemployed. He has fathered two other children who resided with their respective mothers. He has a criminal history, primarily for drug-related offenses. At the time Robin was born, Louis's offenses included two convictions for possession of a controlled dangerous substance (CDS) with the intent to distribute within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7. The first conviction was in 1998. Louis was sentenced to a three-year term of imprisonment. Louis was paroled, but was returned to prison for violating parole. The second conviction was in 2005. He was sentenced to a three-year term, with an eighteen-month period of parole ineligibility.
Louis was also convicted of possession of heroin/cocaine with intent to distribute in 2001. He received a five-year prison term, with a twenty-seven month period of parole ineligibility. In 2002 he pled guilty to escape. He was sentenced to a three-year prison term, concurrent to the sentence he was then serving. Louis also had municipal court convictions for possession of marijuana and for criminal mischief.
The Division of Youth and Family Services (DYFS) became involved with the family on September 16, 2007, when it received a referral from Darcy Hayes, an emergency-room physician. Hayes reported that Sharon had brought Robin, who was then six months old, to the hospital by ambulance because she had been vomiting and had diarrhea. Hayes determined that Robin had no symptoms, but reported that Sharon, whose thoughts were "disorganized," had previously brought Robin to the emergency room under similar circumstances. Hayes diagnosed Sharon, who had initially refused to undergo a psychiatric evaluation, as suffering from "postpartum psychosis."
Hilda Torres, a DYFS worker, went to the hospital and spoke to Sharon. Sharon admitted that she occasionally "smoked wet," which is marijuana laced with phencyclidine hydrochloride (PCP). She told Torres that Louis, whom she said also used drugs, had beaten her and had recently hit her while she was holding Robin.*fn2
Throughout the interview with Torres, Sharon expressed fears that she had contracted HIV from Louis, that people were following her, that Louis had installed cameras in her apartment, and that he had stolen some of Robin's things. Nonetheless, Torres concluded that Robin appeared "well cared for, smiled easily, and seemed content in [her] mother's arms."
Later that day, Juliana Pedillo, a psychiatric nurse, evaluated Sharon. Sharon refused to provide a urine sample for a drug test. Pedillo determined that Sharon should be admitted to the hospital because she presented a danger to herself and to Robin as a result of her postpartum depression, feelings of paranoia, and admitted drug use.
On the same day, Louis called Torres to report that he suspected that Sharon was using PCP. He told her that, although Sharon was generally a good mother, she appeared to be going through a mental "thing." He denied assaulting Sharon, but claimed that she had fought, screamed, hollered, and physically confronted him. Louis said that he left Sharon a few days earlier to "avoid further problems," and had been staying with his mother B.B. (Barbara).
Sharon was admitted to the crisis center later that evening. DYFS determined that neglect was substantiated and removed Robin from Sharon's custody pursuant to a notice of emergency removal. Robin was placed in a foster home. DYFS served Louis with the emergency order by leaving a copy with Barbara. DYFS explored placements with relatives, including Barbara and a maternal aunt.
On September 18, 2007, DYFS filed a verified complaint and order to show cause (OTSC) seeking temporary custody of Robin. The Family Part entered the OTSC on the same date, awarding custody to DYFS. The OTSC also awarded supervised visitation to Sharon and Louis. DYFS was ordered to arrange for home evaluations of Barbara and the maternal aunt, psychiatric evaluations of Sharon, and, if necessary, a substance-abuse evaluation of Louis.
On September 25, 2007, Jacqueline Bickhart, a DYFS caseworker, left a message on both the maternal aunt's and Barbara's answering machines asking whether they would be interested in assuming custody of Robin. On September 26, 2007, the maternal aunt informed Bickhart that she would be unable to assume custody of Robin. Another maternal aunt subsequently informed Bickhart that she too would be unable to care for Robin because Sharon was "already harassing her and causing trouble." On October 1, 2007, DYFS agreed to reschedule the date of Barbara's home evaluation because her electricity had been turned off for nonpayment.
On October 3, 2007, Sharon's maternal cousin J.D. (Jane), who was then twenty-six years old, contacted DYFS and expressed an interest in caring for Robin. Jane resided in Camden in a three-bedroom townhouse with her nine-year-old daughter and her seven-year-old son. Sharon initially opposed placement of her daughter with Jane.
On the same day, Sharon submitted to a psychiatric evaluation at the Steininger Crisis Center. The examining physician, whose identity is not clear from the record, found that Sharon had "no issues to discuss at present time," and that no medication was indicated.
On October 9, 2007, the return date of the OTSC, the judge continued DYFS's custody of Robin, awarded Sharon and Louis weekly supervised visitation, and ordered Sharon and Louis to undergo psychological and substance abuse evaluations.
On October 12, 2007, Louis informed Bickhart that he was interested in assuming custody of Robin. Louis told Bickhart that he rented a room from his employer in exchange for work, but that he had been out of work as of June due to a car accident. He also said that he had attended Camden County Community College in 2002.
On October 19, 2007, Sharon underwent a psychological evaluation with Larry Seidman, Ph.D. In his report, Seidman diagnosed Sharon as suffering from "Adjustment Disorder with Mixed Anxiety and Depressed Mood, Chronic." He found that Sharon does not present with psychological stability to ensure appropriate care and protection for her infant child. Therefore, it can be said with a reasonable degree of psychological certainty that [Sharon] should not be given custody of her infant until she evidenced meaningful and tangible progress in compliance with the treatment plan presented in . . . this report.
He recommended that Sharon undergo a psychiatric evaluation, and also that she have weekly psychotherapy to enhance her coping skills.
In October and November 2007, Sharon consistently visited with Robin. Sharon played with her daughter and brought her clothing and food during some of the visits, but during another visit Sharon was disruptive and threatened to take Robin away from the parenting supervisor.
Louis accompanied Sharon to some, but not all, of the visits. Louis did not, however, attend scheduled psychological evaluations, nor did he attend drug screenings on October 12 and 26, and November 9, 2007. On November 16, 2007, Louis told Bickhart that he planned to let Sharon complete all of the programs required by DYFS, so that, once Robin was returned to Sharon, he too would be reunited with her.
During that time, Sharon tested positive for PCP on October 22, October 30, and November 6, 2007, and refused to undergo drug screens on October 11, and December 7, 2007. Sharon again tested positive for PCP on December 11, 2007. DYFS referred Sharon to Genesis Treatment Program for outpatient substance-abuse counseling.
On December 3, 2007, Sharon underwent a psychiatric evaluation with Michael Friedman, D.O. He agreed with Seidman's recommendations, concluding that Sharon's "overall prognosis is guarded . . . due to her poor insight and lack of motivation regarding her psychiatric symptomatology." He found that Sharon would clearly benefit from antipsychotic medication and a dual diagnosis (psychiatric and substance-abuse) outpatient program.
On December 17, 2007, the judge conducted a fact-finding hearing. The judge found that Sharon had abused or neglected Robin due to her drug use and mental instability and that Louis was unable to care for Robin, thereby placing her "at significant risk of harm." Both Sharon and Louis refused to undergo drug testing at the hearing.
On the following day, Sharon started treatment at "My Father's House," a program for the treatment of substance abuse. She made substantial progress during her treatment, and regularly attended sessions two to three times a week. She tested negative for illicit drugs throughout the five-month course of treatment. Miriam Wright, a counselor, reported that Sharon had done "exceptionally well in all areas of her treatment."
Robin was placed with Jane, Sharon's maternal cousin, on January 11, 2008, despite Louis and Sharon's preference that she be placed with Barbara, the paternal grandmother. On January 22, 2008, Bickhart again contacted Barbara. Barbara said that she would like to care for Robin, but was hesitant to do so because of Sharon's "erratic" behavior. Barbara also said that Louis, whom she described as "basically homeless," used her residence as a home base. Bickhart told Barbara that, if she decided to pursue custody of Robin, there would have to be a home evaluation and she would be required to attend classes. Barbara responded that it "may not be the best decision" for her to assume custody of Robin, but she would get back to Bickhart with a decision. DYFS has no record that she did so. In February 2008, DYFS sent Barbara a letter informing her that she had been ruled out as a potential caregiver.
On February 8, 2008, Louis was arrested for possession of a CDS with intent to distribute within 1000 feet of a school. On June 10, 2008, he pled guilty to the charge. He was sentenced to five years of probation, with 122 days of incarceration as a condition. However, because he had been in jail for 122 days during different periods between his arrest and sentencing, he was essentially sentenced to time served.
A compliance review was held on February 25, 2008. The judge ordered Sharon, who was doing well at "My Father's House," to attend substance abuse treatment with a Mental Illness Chemical Addiction (MICA) component. However, Miriam Broderick, the director of "My Father's House," informed Bickhart that she would "hate to see [Sharon] leave the program and go to a MICA program because she is doing so well." Similarly, Janneth Parra, a counselor with the State Substance Abuse Initiative (SAI) program, reported that Sharon was doing very well at "My Father's House," and that Sharon's behavior, which had initially appeared to result from mental health issues, had subsided since she stopped using PCP. Parra concluded that a referral to MICA was unnecessary because Sharon "would not benefit from the services."
After completing a substance abuse consortium case conference, DYFS and SAI counselors decided that, because Sharon was "doing well at [that] level of care," she would be referred for psychological services only if recommended after reevaluation. On March 6, 2008, William Marciante, M.Ed., determined that Sharon did not display any clinically significant symptoms and that psychotherapy and psychiatric services were not warranted at that time. On May 30, 2008, Sharon successfully completed the substance-abuse program at "My Father's House."
On June 4, 2008, the judge entered an order directing DYFS to return Robin to Sharon by July 3, 2008. Mother and child were reunited on July 2, 2008. The judge subsequently entered an order terminating the litigation.
On July 15, 2008, Sharon reported to a police officer that Louis had assaulted her, tried to steal her welfare money, attacked her in front of Robin, and threatened to kill her. On July 18, 2008, two patrolmen went to Sharon's apartment to have her sign a complaint against Louis, but Sharon refused to sign it because she said she was afraid of Louis.
On July 24, 2008, DYFS received a referral from an anonymous source reporting that Sharon had been involved in an altercation on the streets of Camden with Louis's sister, during which Robin was knocked out of her baby carriage. The altercation reportedly occurred when Sharon intervened in an argument about money between Louis and his sister.
Later that evening, Clareatha Foushee and Charmaine Lumpkin, caseworkers from DYFS's Special Response Unit, went to Sharon's apartment to investigate. Sharon claimed that Louis's sister had "jumped" her, but denied that Robin had fallen out of her stroller. The caseworkers observed that Robin appeared to be uninjured, clean, and appropriately dressed. They also found that the apartment was clean, adequately furnished, had utilities in working order, and that there were food and baby supplies. Sharon apologized for her behavior and seemed relieved when the caseworkers informed her that they did not see any reason to remove Robin. DYFS found the allegation of neglect to be unfounded.
On the following day, Sharon brought Robin to the DYFS office and asked Catherine Williams, one of the caseworkers who testified at trial, for help in getting away from Louis. She told Williams that he beat her and had tried to "strangle her." Sharon claimed that the police would not help her because Louis was a police informant. She also accused the police of placing cameras in her apartment and watching her. She further claimed that there were ghosts in the apartment, who had caused the death of a previous tenant and were now trying to hurt her. She said she slept in the living room to get away from the ghosts. She also told Williams that "perverted things happen in the apartment," and began to speak about demons.
After Williams consulted with her supervisor, DYFS offered to have Sharon admitted to a domestic violence shelter. Sharon refused to go and the police were contacted. When the police and EMTs arrived, Sharon denied that she needed help, denied having talked about cameras, ghosts, and demons, and refused to go to a crisis unit or to undergo a drug test. Robin was removed from Sharon's custody on that day pursuant to an emergency removal. She was placed in a foster home.
Later that day, Williams received a call from Rashemma Harris, an intake worker at the Camden North DYFS office. Harris told Williams that Sharon had come to her office because she was unhappy with the Camden South DYFS office and wanted help getting Robin returned to her custody. Harris said that Sharon, who claimed that Louis was a police informant and that there were cameras and ghosts in her apartment, appeared to be "suffering from mental health issues."
On July 28, 2008, Sharon returned to the police department and asked to sign a complaint against Louis. She also accused the police of installing cameras in her apartment, and claimed that they would not help her because Louis was an informant. Sharon then wandered the halls looking for the cameras and computer screens. She eventually had to be escorted out of the station. A Camden Police officer informed DYFS that Louis was not a police informant.
On July 29, 2008, DYFS filed a verified complaint and order to show cause seeking temporary custody of Robin. Although Louis was not present, Sharon appeared in court and told the judge that she now wanted Robin returned to Jane's custody. DYFS opposed that placement because Jane had been uncooperative with them during the first placement. The judge issued an order reflecting her findings that Sharon was unable to care for Robin because of her mental illness. She awarded physical custody of Robin to Jane. The order provided Sharon with supervised visitation, and ordered her to undergo psychological and psychiatric evaluations.
For reasons that are not clear from the record, DYFS informed Jane that it would not provide her with foster care funds for Robin. Jane nonetheless agreed to accept custody, and Robin was placed in her care on August 5, 2008. Robin was still living with Jane, who wants to adopt her, at the time of trial.
On September 8, 2008, Williams escorted Sharon to Philadelphia for a psychiatric evaluation with Abayomi Ige, M.D., a psychiatrist. Ige described Sharon as "anxious and slightly irritable," but alert and fully oriented to time and place. He reported a history of . . . PCP abuse and possibly dependence with the sequelae of psychotic symptoms including auditory and visual hallucination, paranoid feeling, and paranoid delusion . . . . Her psychotic symptoms seem secondary to abuse of PCP. Progressively, this . . . continuous abuse of PCP could lead to additional brain damage and possibly a permanent psychotic state. [Sharon] was counseled as such. A return to status quo of her premorbid state will depend on [Sharon] totally abstaining from PCP and other illegal psychoactive substances.
Ige concluded that Sharon's reunification with her daughter should be contingent on her remaining "completely drug free." On September 18, 2008, Marla Deibler, Psy.D., a psychologist, performed a court-ordered evaluation of Sharon. Sharon told Deibler that she had been enrolled in a special education program in school. Deibler, who did not conduct an IQ test, found "no evidence of psychomotor agitation or retardation," but found that Sharon's "thought processes were disorganized and dominated by paranoia." She diagnosed Sharon as suffering from "schizophrenia, paranoid type." She recommended that Sharon be evaluated for substance abuse.
Deibler also reported that Sharon's responses to a parenting inventory test fell within appropriate limits on four of the five levels measured, but that her base of parenting knowledge and skills were problematic. However, she expressed concerns about Sharon's "ability to appropriately and safely parent and supervise her child based on her psychotic symptoms and lack of insight." She recommended that all contact between Sharon and Robin be supervised until Sharon had "demonstrated a period of psychological stability." Deibler also recommended a psychiatric evaluation, psychotherapy, parent training, unannounced substance abuse screenings, job training, and finding alternative housing.
Meanwhile, DYFS scheduled weekly supervised visits between Sharon and Robin. During a supervised visit with Robin on September 11, 2008, Sharon told Williams that she had not slept because the ghosts had been very active moving dishes and turning off the television, and that she had heard the cameras in her apartment turning on and off.
During a supervised visit on September 26, 2008, Williams, who had been trained in recognizing signs of substance abuse, reported that Sharon appeared to be "high" on some substance because she was "slurring her words and was quite agitated." Sharon again claimed that there were cameras and ghosts in her apartment. She also threatened to call Trenton and have Williams, whom she called a "crack head," drug tested. During another visit, Williams reported that Sharon smelled like "burning rubber," which Williams characterized as common in people smoking PCP.
During a supervised visit on October 8, 2008, Sharon, who appeared to be very tired, told Williams that she had not slept because there were spirits in her apartment who had held her down so that she could not breathe or move. Sharon also claimed that she saw a face on the couch and heard cameras being turned on and off.
Williams, who had been assigned to the case in April 2008, had her first contact with Louis on October 30, 2008, about two weeks after his sentencing, when he appeared in court for a case management conference. Louis requested visitation with Robin. As a result, DYFS conducted an evaluation of Barbara's two bedroom apartment, where Louis resided. Williams reported that Louis slept on a mattress on the floor and planned to have Robin sleep in his room, although he had no bed, dresser, or clothes, other than some jackets, for Robin. Moreover, Louis had no lights in his room, and Williams recommended that he purchase a lamp, which he did. Louis also purchased covers for the electrical outlets. He had not arranged for daycare.
Despite the lack of planning for the child at Barbara's apartment, DYFS arranged for Louis to have unsupervised visitation with Robin, some of which occurred at Barbara's home. Other visits occurred at the DYFS office. Louis was often late for those visits. Williams testified at trial that DYFS had no concerns at that time regarding Louis's unsupervised visitation with Robin, other than his continued contact with Sharon. Williams reported that on November 19, 2008, Robin played with Louis during their visit at the DYFS office, and that Robin appeared "very happy." Louis tested negative for drug use on that date, although he had failed to attend a substance abuse evaluation on November 13, 2008.
During the same time period, Sharon often became confrontational with the DYFS staff during visits with Robin. For example, on November 13, 2008, Sharon called Williams a "fucking liar" and a "stupid bitch," accused Williams of wanting to have sex with Louis, and held tightly to her daughter and refused to let her go. On that occasion, and during other visits, Sharon's behavior was so disruptive that Williams had to call for assistance. During those visits, Robin appeared "very tense" and "scared," and looked to the caseworkers "to come and get her," especially when Sharon began "screaming and yelling."
On November 21, 2008, Louis underwent a substance abuse evaluation with the Center for Family Services. Louis admitted that he had three convictions for attempting to sell illicit drugs, but claimed that he only drank beer and smoked cigarettes occasionally. Although Louis tested negative for drug use, Fred Sass, a drug counselor, recommended that Louis undergo an "extended assessment."
Sass recommended that Louis participate in the Center's extended assessment program, which met once a week for one-to-four weeks and would provide Louis with education and support. After Louis failed to appear for the Center's sessions scheduled on January 15, and January 21, 2009, his case was closed for non-compliance.
On December 1, 2008, the police were dispatched to Sharon's apartment based on a report by Louis that Sharon was smoking "wet," and was hallucinating. Sharon, who yelled and cursed during the investigation, was arrested for disorderly conduct and resisting arrest.
During a supervised visit on December 11, 2008, Williams observed that Sharon was disheveled, agitated, slurred her words, smelled like smoke, and appeared to be "high." Sharon screamed that Robin was "being starved" and that DYFS "didn't really care." Williams ended the visit and the police escorted Sharon out of the building. Sharon subsequently accused Williams of breaking into her apartment, slashing her furniture, and drugging Robin.
On December 22, 2008, Sharon voluntarily appeared for a substance abuse evaluation a week before it was scheduled. Michele LaBaw, a counselor, informed Williams that Sharon had been loud, argumentative, and paranoid. Sharon refused to undergo a urine test, cursed at the counselor, and threw the counselor's papers into the garbage. LaBaw rescheduled the evaluation for December 29, 2008, but Sharon missed the evaluation because she fell asleep in the waiting room.
DYFS referred Sharon for another substance abuse evaluation, which she attended on January 16, 2009. Terry Fox, a counselor, reported that Sharon appeared paranoid, refused to comply with the evaluation, became confrontational, and had to be escorted from the building. Sharon completed the evaluation on January 26, 2009. She was referred to an intensive outpatient program for treatment. When she did not attend, her case was closed by the program provider. On February 17, 2009, the judge issued an order temporarily suspending Sharon's visitation with Robin.
Sharon tested positive for PCP use on March 10, 2009. The judge ordered her to attend a drug treatment program. As a result, Sharon completed an evaluation on March 19, 2009. She was referred back to "My Father's House" and began treatment on March 30, 2009. However, she was discharged from the program in May 2009 for refusing a drug screen and attacking a staff member. Wright, Sharon's counselor, reported that Sharon had admitted to using PCP and had refused to undergo drug tests on May 5, 14, and 15, 2009. Wright described her as paranoid and aggressive. She recommended that Sharon obtain a higher level of substance abuse treatment.
Louis also failed to attend visitation on January 20, 2009, a court proceeding on March 10, 2009, and psychological evaluations on February 24, and March 10, 2009. As a result of his failure to complete an extended evaluation, his unsupervised visitation with Robin was suspended, and he was instead provided with supervised visitation. Louis's visitation was suspended by April 2009 due to his failure to maintain contact with DYFS for a period of months.
On April 21, 2009, both parties appeared in court for a case management conference. Sharon was disruptive and had to be escorted out of the courtroom. The judge allowed Louis to have supervised visitation with Robin on April 23, 2009. The judge further ordered that Louis could resume unsupervised visitation upon completion of his substance abuse and psychological evaluations.
On May 13, 2009, Louis underwent a psychological evaluation with Meryl Udell, Psy.D., a psychologist. Louis told Udell that he began selling crack cocaine, PCP, and heroin at age sixteen, but denied using drugs with the exception of marijuana. He admitted to daily marijuana use from age sixteen to twenty-one. He told Udell that he had a close relationship with Barbara, with whom he resided, and with his fourteen-year-old son, who he saw several times a week. He described an "alright" relationship with his son's mother, although he admitted that he owed her approximately $20,000 in child support.
Udell did not test Louis's cognitive abilities. However, she found Louis to be functioning in the average range of intellectual ability based on his responses during the interview. According to Udell, Louis's responses to other testing indicated that he had a low probability of substance dependence. She also concluded that Louis's responses to the parenting inventory test fell within appropriate limits for four of the five domains measured. Although Louis demonstrated some confusion as to child development, that failure was not a "significant concern [to Udell] as his scores on the other scales were quite good."
Udell diagnosed Louis as suffering from "cannabis abuse in sustained full remission" (Axis I). She recommended that Louis complete drug education classes and all requirements of his probation, and undergo random drug screens. She recommended that Louis, who had been in frequent contact with Sharon while she was using PCP, be required to "demonstrate the ability to remain stable and drug free in the community for at least six months to a year before consideration should be given to returning his daughter to his care."
Udell expressed concern that Louis had left Robin with Sharon, knowing that Sharon "was aggressive and unstable." She found that it would take time for Louis, who had no history of parenting Robin, to build a relationship with her. In the interim, she recommended that Robin remain in a stable placement, but that Louis should be provided with supervised visitation.
Sharon tested positive for PCP during a case management conference on May 19, 2009. On June 1, 2009, Sharon refused to submit to a court-ordered hair follicle test. On June 8, 2009, Sharon entered a new drug treatment program at South Jersey Behavioral Health (SJBH). She tested positive for PCP use on June 9, 2009. A counselor at SJBH described Sharon as "very challenging" and "at times uncooperative."
In May 2009, Louis asked whether his supervised visits with Robin could be rescheduled to take place after he finished work at 5:00 p.m. Williams responded that DYFS did not supervise visitation after 5:00 p.m., but agreed to inquire whether Jane would agree to do so. Williams contacted Jane on May 29, 2009. She told Williams that she would not feel comfortable supervising the visits. She also alleged that Louis was not working, stating that she often saw him hanging out on the street during the day.
On June 3, 2009, Louis told Williams that he worked for a moving company, but would not tell her the name of the company. Williams offered DYFS supervision of his visits from 4:30 p.m. to 5:30 p.m., or during his lunch hour. He subsequently attended supervised visits with Robin during the day.
Louis failed to appear for substance abuse evaluations with the Center for Family Services on May 14, and May 27, 2009. He underwent a substance abuse assessment on June 4, 2009. Louis related that he used alcohol less than once a year, admitted to having sold illicit drugs, but denied using any illicit drugs, other than marijuana, which he claimed he "tried" as a teenager, but had not used since. The counselor concluded that no level of care was indicated, and recommended that Louis "be conferenced prior to referral for extended assessment, due to legal history for selling drugs."
Despite his representations that he did not use drugs, Louis tested positive for PCP use on June 18, 2009.
During visitation on June 29, 2009, Sharon held Robin on her lap and cursed and screamed at Williams, accused Williams of putting drugs in Robin's cup, alleged that Robin had been sexually abused, and told Williams to take Robin to the hospital for a PAP test. She called 9-1-1 three times in an effort to file a complaint against Williams. Sharon was ultimately escorted from the building by the police.
On the following day, a SJBH counselor informed Williams that Sharon had been discharged from the treatment program for continuing to abuse drugs, causing problems for other patients, and becoming violent. The counselor recommended that Sharon attend an inpatient treatment program. Sharon only agreed to attend a thirty-day program, despite the counselor's recommendation that she needed more than thirty days. She explained that she would lose her apartment if she did not reside there.
On July 1, 2009, the judge determined that DYFS's plan of terminating Sharon and Louis's parental rights, followed by adoption, was appropriate because the parents had not corrected their substance abuse during the two years that Robin had been in placement.
DYFS sent Barbara letters by regular and certified mail on July 22, and August 5, 2009, regarding whether she was interested in assuming custody of her granddaughter, but did not receive a response. On August 24, 2009, DYFS filed a complaint for guardianship. The following day, the judge issued an order directing DYFS to provide documentation of its efforts to assess Barbara as a potential caregiver. DYFS sent Barbara another letter by regular and certified mail on September 9, 2009, but again received no response. DYFS subsequently sent Barbara a letter ruling her out as a possible placement.
The case was assigned to Danita Truitt, the other caseworker who testified at trial. Visitation between the parents and Robin continued, supervised by caseworkers Sherri Ickes or Charmain Bryant. During a visit on September 14, 2009, Robin referred to Louis as "Dad." Louis hugged her and gave her a kiss on the cheek. At another visit on September 21, 2009, Robin again referred to Louis as "Dad," smiled at him, and shared her toys with him. Although Louis behaved appropriately when present, his attendance was inconsistent. He was removed from the transportation list several times for failing to attend or failing to confirm scheduled visits.
Although Sharon regularly attended visitation with Robin and often brought her daughter appropriate food and clothes, her visits were fraught with confrontation in that Sharon cursed and threatened DYFS workers. She had to be escorted out of the building on several occasions. During visits in September 2009, Sharon alleged that Robin, who was then two-and-a-half years old, had whispered, "Shawn-shawn [Jane's eight-year old son] fuckn' with me." Sharon relayed the alleged conversation to Ickes, and became hysterical. During another visit, Sharon demanded that Robin be examined in the emergency room because she was "being touched" by Jane's son. On October 5, 2009, the judge entered an order to show cause suspending Sharon's visitation.
On October 17, 2009, the Voorhees Township police received a report that Sharon was darting in and out of traffic. When the police arrived, Sharon "appeared delusional" and her behavior was "very erratic." She claimed she was trying to escape cars that were following her, and that the Camden police had put "fumes into her body." She had to be handcuffed and taken to the hospital for a crisis evaluation.
On October 23, 2009, two weeks after Sharon's last reported PCP use, Sharon was admitted to the Hampton House, a behavioral health center, pursuant to a temporary order of commitment. She "improved significantly" during her hospitalization as a result of participation in group and individual therapy. She was discharged on November 5, 2009, with a diagnosis of "substance-induced psychotic episode" and "marijuana and PCP abuse." She was prescribed Haldol, an antipsychotic medication. On November 12, 2009, Sharon refused to undergo a drug test.
During a case management conference on December 7, 2009, the judge issued a confidentiality order because Sharon had posted details about the case on the internet. The judge denied Sharon's application to resume visitation, finding that the reasons for the earlier suspension remained valid. In response to the judge's rulings, Sharon claimed that Robin was "being abused and neglected by the State of New Jersey." She threatened to report the matter to the ACLU, and subsequently left the courtroom. There is nothing in the record to support Sharon's assertion that Robin had been abused. In fact, other than a mild case of asthma, Robin had no medical issues or behavioral problems during that time period.
Because Barbara renewed her interest in taking custody of Robin, the judge also conducted a hearing on her application for custody. Barbara testified that she had been employed full-time by the Housing Authority in Camden for seven years, resided in a two-bedroom apartment, and had cared for Robin several times, including overnights, during the first few months of the child's life. If awarded custody, Barbara said she would arrange for Robin to attend daycare and would include Robin on her health insurance. However, as a result of her work schedule, Barbara had not seen Robin for several months. The judge concluded that, although Barbara was qualified to be caretaker, there was no reason to disturb the status quo because Robin had resided with Jane, who was equally qualified, for two-and-a-half years.
Louis, who had informed the Division he had a "new job" as of November 2009, was again taken off the transportation list in December because of "his inconsistency with the visits." In January 2010, Louis told Truitt that he was attending community college and, as a result of his class schedule, needed to change the date of his visits to Fridays, which she agreed to do. At that time, Louis was placed back on the transportation list and resumed visitation with Robin. Louis visited Robin on January 29, 2010, brought a toy, and read to her. Louis missed visits on February 5*fn3 and February 12, 2010, and was removed from the transportation list for the fifth time. Louis claimed he did not have enough money to get to the visit, and asked to change the date of the visits back to Wednesdays. Truitt placed Louis back on the transportation list on February 17, 2010.
On March 1, 2010, DYFS referred Sharon for an intake interview at Cooper House, an intensive five-day per week outpatient substance abuse program. On March 2, 2010, one month before the trial, Sharon tested positive for PCP. She was discharged from the program on March 9, 2010, due to non-compliance.
Meanwhile, on January 13, 2010, Chester Sigafoos, Ph.D.,*fn4 who testified on DYFS's behalf as an expert witness, conducted an approximately one-and-a-half-hour psychological evaluation of Sharon, and an approximately fifty-minute bonding evaluation of Sharon and Robin. In his report, which was admitted into evidence, Sigafoos found that Sharon's behavior was appropriate during the evaluation, that she had no difficulty in understanding and answering questions, that her speech was "spontaneous and clear," and that she was "oriented in person, place, time, and circumstances." Sharon, who had previously been unwilling to engage in a detailed discussion of her family history in a September 18, 2008 evaluation with another psychologist, told Sigafoos that she had been sexually molested by her caretaker's brothers, when she was between six and seven years old.
Based on testing conducted during the evaluation, Sigafoos found that Sharon had an IQ of 68, placing her in the "mildly mentally retarded" range, had an "impaired empathetic response," deficient visual memory, significantly impaired perceptual capacity, impaired interpersonal relationships, and poor impulse control.
During Sigafoos' testimony, Sharon had to be removed from the courtroom following several outbursts, during which she called Sigafoos a liar, said she felt like "whooping his ass," and accused Sigafoos and other individuals in the courtroom of watching video recordings taken of her while she was in her apartment.
Sigafoos testified that Sharon's outbursts at trial were consistent with his diagnosis that she did not have the ability to parent due to her lack of impulse control. Sigafoos also opined that as a result of the sexual abuse Sharon claimed she suffered as a child, she was preoccupied with sexual issues and projected her experiences onto Robin. He found that this projection was "very, very problematic, because that could cause undue stress, and even psychological harm in the child." He concluded that Sharon posed a danger to herself and to Robin.
Sigafoos also found that Sharon's long-term PCP use was not the primary cause of her psychosis, although it had exacerbated the negative aspects of her pre-existing developmental cognitive disability and caused permanent memory dysfunction. He described PCP as a "very dangerous" and "caustic substance" that "causes long term effects." He explained that because the body retains PCP in the fat cells of the brain, it can be released in the form of a chemical PCP flashback when triggered by an external stressor. Thus, even if Sharon stopped using PCP, she could undergo a flashback six months to a year after its original use.
Sigafoos diagnosed Sharon as suffering from: PCP dependence, a learning disorder, amnestic and cognitive disorders, impulse control disorder, and adjustment disorder with anxious mood (Axis I); mild mental retardation, narcissistic personality disorder, and paranoid and obsessive compulsive personality traits (Axis II); and problems with primary support group, academics, employment, and in her interactions with the legal system (Axis IV). Sharon's "global assessment of functioning," or Axis V diagnosis, was forty-two, based on a possible score of one-hundred, which Sigafoos described as "very poor."
Sigafoos recommended that Sharon be admitted to long-term inpatient residential treatment for a minimum of one year. He found that her PCP dependency warranted inpatient treatment, but explained that such treatment would only be able to remedy her substance abuse issues. He explained that Sharon's prognosis was poor because, even if she successfully addressed her substance abuse issues, her underlying neurocognitive dysfunction would remain.
Sigafoos concluded that Sharon's psychopathological disorders were extremely difficult to treat given her lack of insight, motivation, and commitment to change, and estimated there was a two percent chance of remedying her neurocognitive dysfunction, which he characterized as "generous." Sigafoos testified that Robin needed permanency, and could not wait for Sharon to undergo such a lengthy, and in all likelihood unsuccessful, treatment.
During the bonding evaluation, Sigafoos observed that although Sharon brought Robin food and attempted to read to her, Sharon was more focused on reading aloud rather than attempting to engage Robin. He testified that Robin distanced herself from Sharon, displaying behavior consistent with an insecure/avoidant attachment. For example, he observed that Robin engaged in minimal eye contact with Sharon, ignored her directions, and did not react to separating from her at the end of the session.
Sigafoos characterized Sharon as disconnected from Robin, and described her parenting style as "indifferent." He concluded that Sharon could not parent Robin, that Robin had not bonded to her, and that termination of Sharon's parental rights would not harm Robin. Instead, based on Sharon's inability to control her impulses and drug addiction, reunification with her would pose a "high risk" of harm to Robin.
During his psychological evaluation of Louis on January 5, 2010, Sigafoos observed that Louis presented with a "flat affect," stared, and showed diminished cognitive capacities. Louis admitted that he had sold illicit drugs, but claimed he had never used PCP. He admitted to smoking "a couple" marijuana blunts daily as a juvenile, but maintained that he had last used marijuana about eight years ago. Sigafoos diagnosed Louis as suffering from cannabis abuse, in sustained remission (Axis I). When he rendered his diagnosis in February 2010, Sigafoos was unaware that Louis had tested positive for PCP in June 2009. At trial, he testified that the positive test result further substantiated his findings, which were consistent with someone who, in addition to suffering from developmental disorders, had also abused PCP.
Based on testing conducted during the evaluation, Sigafoos found that Louis had an IQ of 59, which indicated "mildly mentally retarded capacities." Sigafoos concluded that Louis's "overall thinking and reasoning abilities exceed only . . . about .3% of individuals his age," and that Louis had "extreme deficiencies" in memory capacities. Sigafoos found that the underlying source of Louis's cognitive deficiencies appeared to be "developmental neurocognitive problems," but that his drug use may have contributed to his diminished functioning. Given Louis's intellectual limitations, Sigafoos doubted his ability to parent.
Sigafoos concluded from the psychological test results that Louis "had significant problems with interpersonal relationships," and suffered from "narcissistic personality disorder, obsessive-compulsive personality traits, schizoid personality traits, and an antisocial personality disorder." Louis was also "cognitively rigid," remained "absorbed in his own world," and was indifferent to being around other people. As a result, Sigafoos found that Louis could not effectively parent Robin because he lacked "relatedness" and an "empathetic response."
Sigafoos opined that Louis's treatment prognosis was "[v]ery poor" because he "does not have the capacity to learn and retain information." Consequently, Sigafoos opined that Louis could not effectively parent Robin and insure her safety, even if he attended parenting classes "for the next three years." He testified that Robin could not afford to wait for Louis to complete treatment, which would likely be "arduous and fruitless," because she was entering the psychosocial stage of development during which she was establishing herself within her foster family.
During the bonding evaluation, Sigafoos observed that Louis's capacity to interact with Robin was "very, very limited. He did some superficial things with the child, but for the most part, he just sat there and was mute." Although the child seemed to warm up a little bit toward the end of the session, and sang the "ABC" song for Louis, she primarily acted independently and engaged in limited interaction with Louis. When the session came to an end, the caseworker, not Louis, prepared Robin to leave. Sigafoos found no attachment bond between Louis and Robin. He concluded that placement with Louis would pose a high risk of harm to Robin based on his significant criminal history and psychopathologies.
Sigafoos observed a "dramatic difference" during the bonding evaluation between Robin and Jane, in that Robin laughed easily, explored her surroundings, engaged in eye contact, and interacted and responded positively to Jane. He observed that Robin responded to Jane's directions, reacted positively to physical closeness, and showed signs of pleasure at being with Jane. Jane, in turn, responded to Robin's overtures, initiated affection, positively interacted with the child, and was able to report on Robin's developmental stages. Sigafoos concluded that there was a "very healthy attachment bond" between Robin and Jane, that Robin viewed Jane as her psychological parent, and that Robin would suffer "serious and enduring harm" if she were separated from Jane. He noted that Robin had previously been removed from Jane's care, and opined that another removal from Jane's stable care could cause the child to become "fixated at that particular stage of development."
During Sigafoos' testimony concerning the bonding evaluation, Sharon again interrupted the proceedings, accused Sigafoos of lying, said that the demons were trying to do something to her, and accused DYFS personnel of watching her get out of the shower.
Sharon testified that, during the six months that Robin resided with her, she had properly cared for her daughter and had never physically abused the child. Sharon alleged that Robin was being abused in Jane's home because she often had scratches and bruises on her face, and had told her that Jane's son had "been f'ing with me down there." Sharon disputed Sigafoos' testimony, and claimed that he told her that she had "passed the tests," and that given that she had not seen Robin in a while, she had "a good bonding and evaluation." Additionally, Sharon denied telling Williams there were ghosts or demons in her apartment, and said she had gone to the DYFS office in July 2008 solely to request housing.
Louis testified that he had been residing with his mother, Barbara, in Camden for the past five years. He denied current drug use, and testified that all of his drug tests since June 2009 had been negative. He attended regular high school courses until the eleventh grade and then later obtained his GED. In 2003, he completed a one-year course in business management at Mercer County Community College. At the time of trial, he was attending Camden County Community College and had a B average in all of his classes.*fn5 When he completed college, he planned to work as an addiction counselor.
Louis testified that the last time he had a full-time job was in 2008, when he worked at a Wendy's. According to Louis he missed some of the visits with Robin in September 2009, and January and February 2010, because he had opportunities to work. He testified that he loved Robin very much, and that he would complete an extended assessment to regain custody of her. If custody were returned to him, Louis said he would ask his sister to baby-sit for Robin if he received a call for temporary work.
The law guardian recommended that the trial judge terminate Louis and Sharon's parental rights.
In an oral decision delivered on April 15, 2010, the judge found that DYFS had established each of the four prongs of the best interest of the child test*fn6 by clear and convincing evidence, and issued a judgment of guardianship terminating defendants' parental rights. This appeal followed.
Before turning to the individual issues raised by Sharon and Louis on appeal, which we will address separately as to each, we outline the general principles of law governing our consideration of those issues.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Those findings may not be disturbed unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
As a general rule, we should also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293.
In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"
We have held that, "where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (citation and internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is still appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).
Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.
Parents have a constitutionally-protected right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165-66 (2010); E.P., supra, 196 N.J. at 102; In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed in the termination of parental rights. K.H.O., supra, 161 N.J. at 347. To balance these constitutional rights against potential harm to the child, when applying for guardianship, the Division must institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on the Division to establish its case by clear and convincing evidence. Ibid.; see also P.P., supra, 180 N.J. at 511 ("On appeal, a reviewing court must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court.").
The Supreme Court first articulated the best interests standard in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 602-11 (1986). The Legislature subsequently amended Title 30 in 1991 to conform with the Court's holding in A.W., codifying the standard at N.J.S.A. 30:4C-15.1(a). See L. 1991, c. 275, § 7. The statute provides that the Division must prove:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).] These four factors are not independent of each other; rather, they are "interrelated and overlapping . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citation omitted), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive" requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (citation and internal quotation marks omitted).
Under the first prong of the best interests standard, the Division must prove by clear and convincing evidence that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "The harm shown under the first prong must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. "The potential return of a child to a parent may be so injurious that it would bar such an alternative." A.W., supra, 103 N.J. at 605. "The absence of physical abuse or neglect is not conclusive"; indeed, serious emotional and developmental injury should be regarded as injury to the child. Ibid. (citation and internal quotation marks omitted). More- over, trial courts must consider the potential psychological damage that may result from reunification with a parent. Ibid. "[T]he psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977); see also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("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.").
Under the second prong of the best interests standard, a trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care, . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This harm includes "evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2). The second prong focuses on parental unfitness and overlaps with the proofs supporting the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
Under the third prong of the best interests standard, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances" that necessitated removal and placement of the child in foster care. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services essential to achieving reunification, notice to the family of the child's progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "coordinated with other services" and must have a "realistic potential" to succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).
Under the last prong of the best interests standard, the question to be addressed is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. The overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. If a child can be returned to the parental home without endangering the child's health and safety, the parent's right to reunification takes precedence over the permanency plan. A.W., supra, 103 N.J. at 610-11. The mere fact of a bond with the foster parent does not alone justify the termination of parental rights. K.L.F., supra, 129 N.J. at 44-45; N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (App. Div. 2005).
In meeting the fourth prong, the State should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with the biological and foster parents. In re Guardianship of J.C., 129 N.J. 1, 19 (1992). "[T]ermination of parental rights likely will not do more harm than good" where the child has bonded with foster parents in a nurturing and safe home. E.P., supra, 196 N.J. at 108 (citations omitted). Yet, "the Division must show 'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).
Sharon raises the following issues in her appeal:
I. DYFS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE SHARON'S PARENTAL RIGHTS IN ORDER TO PROTECT ROBIN'S BEST INTERESTS.
A. DYFS FAILED TO PROVE THE FIRST
PRONG BECAUSE ROBIN'S SAFETY, HEALTH OR DEVELOPMENT WAS NOT ENDANGERED BY THE PARENTAL RELATIONSHIP.
B. DYFS FAILED TO PROVE THE
SECOND PRONG BECAUSE SHARON WAS ABLE AND WILLING TO PROVIDE A STABLE HOME FOR ROBIN AND A DELAY IN PLACEMENT OF ROBIN WOULD NOT ADD TO THE HARM.
C. DYFS FAILED TO PROVE THE THIRD
PRONG BECAUSE DYFS DID NOT MAKE REASONABLE EFFORTS TO PRESERVE THE FAMILY TO PREVENT THE NEED FOR REMOVING ROBIN FROM SHARON'S CARE.
D. DYFS FAILED TO PROVE THE
FOURTH PRONG BECAUSE DYFS FAILED TO PROVE THAT TERMINATING SHARON'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
We will address each issue separately.
With respect to the first prong, Sharon argues that DYFS failed to prove by the required standard that she caused any harm to Robin, despite her history of substance abuse and mental health issues. We disagree.
The Division does not need to demonstrate that actual serious harm has occurred. It need only establish that the child's "safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1) (emphasis added). Because the Legislature has not required the Division to wait until actual harm has occurred, putting the child at substantial risk of harm suffices to satisfy N.J.S.A. 30:4C-15.1(a)(1). "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383.
In addition, the mental illness of a parent that affects his or her ability to carry out his or her parental responsibilities can be a basis for termination of parental rights. See, e.g., N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 438-39 (App. Div. 2001) (finding termination of parental rights appropriate even though parents were morally blameless because their mental deficiencies put child at risk), certif. denied, 171 N.J. 44 (2002).
The trial court found that there was "no doubt" that Sharon loved Robin, "her one and only child." He noted that Sharon said she would be willing to do anything to get Robin back. Nevertheless, the judge found that DYFS established prong one based on Sharon's PCP use, pointing to the fact that she had tested positive just one month prior to the trial. He also pointed to Sigafoos' testimony that, "long-term use of PCP . . . [causes] the drug [to] remain in the system and is activated with stress and would cause things such as the acting out" behavior Sharon demonstrated before the caseworkers and in court.
The judge further found that Robin had been placed at risk as a result of Sharon's cognitive impairments. He determined that [a]s it relates to the first prong, she has impaired empathetic response, she is unable to understand the nonverbal acts of . . . the child. She has perceptual impairment and cannot form reality based decisions. Meaning that she has a lack of understanding of reality and that affects her ability to parent. She also has [an] impulse control disorder, which has been verified . . . by her acting out. And she has demonstrated a continuing risk of such acting out.
Additionally, [Sigafoos] found narcissism, paranoid ideology, and obsessive compulsive behavior. . . . She has difficulty in planning or understanding and in multitasking. As an example of that, in Dr. Sigafoos' opinion, which I find credible, she would have trouble in cooking dinner while at the same time watching the child. She has poor interpersonal skills.
All of which . . . would lead to the conclusion that the parental relationship would place the child in continuing danger.
There was significant evidence that Sharon's past behavior, including her PCP use and confrontational outbursts, as well as her cognitive impairments, exposed Robin to a risk of harm. Sharon's disorganized and paranoid thoughts while in the emergency room, her refusal to submit to a drug test, and her admitted PCP abuse supported the finding that Sharon was not in a proper mental state to care for Robin safely when the child was removed from Sharon's care in September 2007. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 250 (App. Div.), certif. denied, 201 N.J. 272 (2009), cert. denied, ___ U.S. ___, 130 S. Ct. 3537, 177 L. Ed. 2d 1095 (2010).
After the removal, although there was evidence that Sharon consistently visited her daughter, maintained an apartment, and had some parenting skills, her constant use of PCP, an extremely dangerous drug, placed Sharon's ability to protect Robin's health and safety directly at issue. Except for the brief five-month period when Sharon attended "My Father's House," there was evidence that she used PCP from September 2007 to March 2, 2010. Sigafoos testified that there was also a danger Sharon would experience chemical flashbacks that would directly impair her ability to care for Robin.
Sharon's PCP use during the three years she was involved with DYFS resulted in paranoid and uncooperative behavior, threatening and cursing at DYFS workers requiring her removal during visits with Robin, and removal from the courtroom during outbursts. The evidence further demonstrates that, without any factual basis, she accused caseworkers of placing drugs in Robin's cup, accused Jane's young son of sexually molesting Robin, and regularly asserted that there were cameras, ghosts, and demons in her apartment.
It is apparently not clear whether Sharon's psychotic symptoms were caused by her PCP use or resulted from a mental illness, such as schizophrenia, or from the cognitive impairments that inhibited her ability to form reality-based decisions. Nevertheless, none of her mental health evaluators recommended that Robin be returned to Sharon, at least until she remained free of substance abuse and demonstrated a lengthy period of psychological stability. She was not able to achieve that goal prior to trial, and the record supports the conclusion that she would not be able to do so in the foreseeable future.
Sigafoos opined that Sharon's inability to multi-task, severe memory deficiencies, lack of interpersonal skills, and inability to pick-up on Robin's non-verbal cues impaired Sharon's ability to parent effectively and would place Robin at substantial risk of harm were she to be returned to Sharon's custody. In addition, Sigafoos found that Sharon's projection of her own sexual abuse onto Robin to be "very, very problematic, because [it] could cause undue stress, and even psychological harm in the child."
The facts advanced at trial fully supported the trial judge's finding that DYFS clearly and convincingly established the first prong with respect to Sharon.
Sharon next argues that DYFS failed to prove the second prong because there was no evidence (1) that Robin would be harmed if she continued in foster care and (2) that Sharon could not become a fit parent in the future.
The judge found that Robin's need for permanency could not be held in abeyance while Sharon underwent a year-long drug rehabilitation program. First, he noted that there was no guarantee of success. Second, even if Sharon successfully addressed her PCP abuse, the judge observed that rehabilitation would not address her other problems as enumerated by Dr. Sigafoos, her threats, the instance of yelling and screaming a profanity while holding [Robin] in her arms, all [of which] indicate a risk of harm to [Robin] and herself, which is likely to continue into the future and to endanger [Robin].
In addition, the judge relied on the testimony that separating Robin from Jane "would cause serious and enduring emotional or psychological harm" to Robin.
Despite three years of referrals to substance abuse treatment programs, Sharon consistently tested positive for PCP use from 2007 to 2010, except for the five-month period in early 2008. When Sharon returned to "My Father's House" in 2009, she was discharged from the program for refusing a drug screen and attacking a staff member. Sharon refused to comply with substance abuse evaluations, refused to undergo drug tests on numerous occasions, and was discharged from treatment at Genesis outpatient counseling, the South Jersey treatment program, and Cooper House. As the judge found, even if Sharon could overcome her substance abuse issues, her cognitive disabilities, which directly and negatively impacted her ability to parent, were more difficult to treat and would require even longer and more intensive treatment, given Sharon's lack of insight, motivation, and commitment to change. Consequently, there was significant evidence in the record that Sharon had been unwilling and unable to eliminate the significant risk of harm to Robin caused by both her PCP abuse and her cognitive disabilities.
This case is distinguishable from F.M., supra, 375 N.J. Super. 235, cited by Sharon. In F.M., we held that, because of the extensive work the mother had accomplished in her parenting and anger management classes, the fact that she needed another six months of therapy before she could be reunited with her children did not support a termination of her parental rights. Id. at 263. In this case, Sharon had made no significant progress towards reunification with Robin at the time of trial. The evidence revealed that she would need, at a minimum, one full year in inpatient intensive treatment to address her substance abuse problem, with no reasonable prospect of success or an ability to resume parenting even if successful with respect to overcoming her addiction.
At the time of trial, Sharon was simply not a safe, stable placement option for Robin, and was not likely to become one in the foreseeable future. We are satisfied that the judge's finding that DYFS proved the second prong by clear and convincing evidence is fully supported by the record.
Sharon argues that DYFS failed to establish the third prong because she had not been given a "consistent diagnosis," had not been referred to a mental illness chemical addiction program, and DYFS appeared to give up on her after Robin was removed the second time.
The trial judge found that DYFS had met the third prong because it offered Sharon referrals for psychiatric, psychological evaluations and substance abuse evaluations and visitation.
She was sent to South Jersey Behavioral Health, which recommended inpatient treatment, which she refused. Alternatively, she then was sent to Cooper House, which was willing and able to provide intensive outpatient treatment. She did not comply with that and . . . was dismissed for noncompliance.
As Sharon correctly points out, it was not clear whether her psychotic and paranoid symptoms were induced by her PCP use or resulted from a mental illness, such as schizophrenia. As a result, DYFS referred Sharon for psychiatric and psychological evaluations, as well as several substance abuse programs. Although Sharon did well during her first treatment at "My Father's House," she relapsed and failed to comply with treatment programs during her second time at "My Father's House" and at the other providers.
DYFS had proposed enrolling Sharon in a MICA program, which would have included both mental illness and chemical addiction components. At that time, however, Sharon was responding well at "My Father's House," and both the director of the program and her counselor recommended against removing Sharon from a program that was working. In fact, the program was so successful that Sharon was briefly reunited with her daughter. DYFS's decision not to pursue the MICA program was reasonable under the circumstances.
DYFS did not simply give up on Sharon after the second removal. Instead, DYFS provided her with another referral to "My Father's House," additional evaluations, and referrals for treatment at the South Jersey treatment program, Hampton House, and Cooper House. DYFS also arranged for the prescription of antipsychotic medication. Despite all of these services, which were designed to help Sharon, she continued to test positive for PCP and engaged in erratic behavior.
Consequently, we agree with the trial judge's determination that DYFS met its burden of proof, by clear and convincing evidence, with respect to the third prong.
Finally, Sharon argues that DYFS failed to prove the fourth prong because the record was replete with instances in which she communicated with Robin and they shared activities. She argues that the judge's exclusive reliance on Sigafoos' conclusions, reached after a brief fifty-minute bonding evaluation, provided evidence of the judge's "systematic indifference to the needs of mentally ill parents." We disagree.
The judge found that the termination of Sharon's parental rights would "not do more harm than good." He concluded that it is obvious that [Sharon's] psychological makeup is such that she is unable to parent a child without doing harm to that child.
The bonding evaluation shows that there was no bond . . . with [Sharon]. [Robin] was not attached to her, but rather, exhibited a desire to avoid her mother.
In fact, the judge found that "failure to terminate would in fact do more harm than good and that separating the child from the foster parents would do more harm than good."
The judge's conclusion was fully supported by the record, including Sigafoos' undisputed expert testimony that Sharon could not parent Robin, who had not bonded to her, and that while reunification would pose a high degree of harm, termination of Sharon's parental rights would not.
Nonetheless, Sharon argues that Sigafoos' testimony as to the lack of a bond was not credible given the short length of the bonding evaluation and the fact that it stands in direct contrast to the other evidence of "communication and activities shared between [her] and Robin." Although there is evidence that Sharon visited with Robin, played with her, and purchased her food and clothing, there is no significant evidence in the testimony or the case notes that Sharon and Robin had developed a close bond. In fact, there is evidence that Robin, who had only resided with Sharon for the first six months of her life and then for twenty-three days in 2008, seemed afraid of Sharon during some of the visits, and looked to the caseworkers "to come and get her," especially when Sharon began "screaming and yelling." There is also evidence that Robin sometimes ignored Sharon's directions.
The judge's conclusion that Robin would suffer harm if she was separated from Jane, with whom she had resided for two years at the time of trial, was also supported by the evidence. Sigafoos testified that there was a very healthy and strong attachment bond between Robin and Jane, that Robin viewed Jane as her psychological parent, and that Robin would suffer serious and enduring harm if she was separated from Jane. Although the bonding evaluation was not lengthy, Sigafoos observed a dramatic and positive difference in Robin's behavior during his evaluation of Jane. That finding was supported by the case notes, which consistently described Robin as happy and comfortable in Jane's care.
Sigafoos' testimony was not challenged by another expert, and was consistent with the other evidence relied upon by the trial judge. We see no basis to conclude that the trial judge's reliance on Sigafoos' credibility and expertise was misplaced or unsupported in the record. We see no indication in the record before us that the judge expressed any indifference to the needs of mentally ill parents or that his decision was based on anything other than the evidence before him. Consequently, we are satisfied that his decision with respect to the fourth prong is substantially supported by the record under the clear and convincing standard.
In summary, we conclude that the judge's determination that DYFS satisfied each of the four prongs with respect to Sharon by clear and convincing evidence is well supported in the trial record. We therefore affirm the termination of Sharon's parental rights.
After setting out the standard of review, Louis raised the following issues in his appellate brief:
II. THE DIVISION FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE LOUIS'S PARENTAL RIGHTS IN ORDER TO PROTECT ROBIN'S BEST INTERESTS.
A. DYFS FAILED TO PROVE THE FIRST PRONG BECAUSE ROBIN'S HEALTH AND SAFETY WAS NOT ENDANGERED BY LOUIS.
1. LOUIS NEVER HARMED ROBIN.
2. THE COURT WAS INCORRECT THAT LOUIS DID NOT HAVE CONTACT WITH ROBIN.
3. LOUIS'S INCARCERATION [WAS]
NOT SUFFICIENT TO MEET PRONG ONE BECAUSE HE WAS INCARCERATED ONLY A FEW MONTHS DURING ROBIN'S LIFE AND THE COURT DID NOT APPLY THE CRITERIA SET FORTH IN DYFS V. L.A.S.
B. DYFS FAILED TO PROVE THE SECOND PRONG.
1. DR. SIGAFOOS' REPORT AND
TESTIMONY ARE SO DEEPLY FLAWED AND CONTRARY TO OTHER EVIDENCE IN THE RECORD AS TO RENDER THEM MEANINGLESS AND THE COURT'S RELIANCE ON THEM IS REVERSIBLE ERROR.
C. DYFS FAILED TO PROVE PRONG THREE.
D. THE STATE FAILED TO PROVE THAT TERMINATING LOUIS'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
We will address each issue separately.
Louis argues that DYFS failed to prove the first prong because he never actually harmed Robin. He points to the fact that, even though he left Robin in Sharon's care when he knew Sharon was using PCP and was suffering from some "mental thing," Robin was not actually harmed by Sharon. He also contends that the trial judge erred in finding that he had no contact with Robin until she was eighteen months old. Finally, he argues that his criminal record and incarceration were not a sufficient basis for termination of his parental rights.
Initially, we agree that incarceration cannot, by itself, justify a finding of endangerment or justify termination of parental rights. In re Adoption of Children by L.A.S., 134 N.J. 127, 137-38 (1993). Nevertheless, frequent incarceration is one of many factors relevant to determining whether the parental relationship should be terminated based on parental unfitness. Ibid. A "parent's incarceration may be a substantial obstacle to achieving permanency, security, and stability in the child's life." Id. at 139. Further, "[a] parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of [a] child." D.M.H., supra, 161 N.J. at 379. The effect of a parent's incarceration on the parent-child relationship is "extremely fact sensitive" and the court must conduct a broad inquiry into all of the circumstances bearing on incarceration and criminality when assessing parental fitness. L.A.S., supra, 134 N.J. at 139, 143.
In his oral opinion, the judge reviewed Louis's criminal history, noting that, of Louis's six convictions, four were for distributing CDS within 1000 feet of a school, the most recent having occurred while Robin was in DYFS's custody.*fn7 The judge found that those convictions placed the child at risk. "[T]he nature of the underlying crime . . . is relevant in determining whether parental rights should be terminated." Id. at 143. We are satisfied that Louis's history of selling heroin, crack cocaine, and PCP (the very substance that Sharon abused regularly and that Louis abused at least on one occasion), was relevant to his fitness as a parent.
Louis correctly asserts that the trial judge's factual finding that his first contact with his daughter was on October 3, 2008, when she was a year-and-a-half old, is not supported by the record. However, the actual facts lend considerable support to the judge's ultimate conclusion with respect to the first prong.
Louis lived with Sharon during some, but not all, of the period between Robin's birth and the first DYFS emergency removal. DYFS records reflect that Louis helped Sharon care for Robin during that time. However, on September 16, 2007, the date on which DYFS received the initial referral from the hospital, Louis informed the DYFS worker that he suspected that Sharon was using PCP. Despite that, he left Robin in Sharon's sole care "to avoid further problems" caused by Sharon's mental "thing." In other words, he left his daughter with someone whom he thought was using PCP and acting erratically. DYFS found it necessary to effectuate the emergency removal on the same day.
Louis attended some, but not all, of the supervised visitation sessions held following the removal. He failed to attend required psychological evaluations and drug screenings during that period. In fact, he told a DYFS worker that he planned to let Sharon complete the required programs and that, once she was reunited with Robin, he would be able to be with them. The unstated, underlying assumption of Louis's plan was that he would not need to participate in any DYFS programs as long as Sharon did so. Consequently, on December 17, 2007, following the hearing during which Louis refused to participate in a drug test, the judge determined that Louis was unable to care for Robin.Louis was arrested in February 2008, and released in June. In July 2008, Robin was returned to Sharon for less than a month. Although, at the time, Sharon blamed Louis for some of the events that led to the second removal, there is no basis in the record to credit Sharon's assertions and the judge made no findings in that regard. Nevertheless, it appears that Louis was not involved with Robin or the DYFS litigation from the time of his release until late in October, after he had been incarcerated again briefly and been sentenced for the CDS offense for which he had been arrested in February.
Louis sought visitation at an October 30, 2008 conference. DYFS eventually arranged unsupervised parenting time, which took place at his mother's home and the DYFS office. Although there were positive signs during those parenting sessions, Louis continued to be non-compliant with respect to substance abuse evaluations. After he participated in an evaluation on November 21, 2008, he was assigned to attend an "extended assessment," but was terminated for non-attendance at the beginning of 2009.
After Louis missed a court session and several psychological evaluations, he was switched from unsupervised to supervised parenting time. At a conference on April 21, 2009, the judge infomed Louis that he would not be able to resume unsupervised visitation until he completed his substance abuse and psychological evaluations. The psychological evaluation with Udell in May resulted in some favorable findings, although there was a diagnosis of "cannabis abuse in sustained full remission." However, the psychologist noted that, at that time, Louis had not seen Robin in five months, but was still having contact with Sharon while she was using PCP. She recommended that no consideration be given to returning Robin to his care until he had "demonstrate[d] the ability to remain stable and drug free in the community for at least six months to a year."
Louis tested positive for PCP in June 2009, which calls into question his repeated assertions during drug and psychological evaluations that he had only used marijuana in the past. It also provides a context for the fact that Louis did not attend drug screenings on October 17, and November 19, 2007, refused to undergo a drug test on December 17, 2007, and failed to attend substance abuse evaluations on November 13, 2008, May 14, and May 27, 2009. Finally, it undercuts Louis's argument that the extended evaluation he refused was unnecessary because he only sold and did not use illicit drugs.
In the following months, Louis had considerable difficulty with attendance at supervised parenting sessions, and was frequently removed from the transportation list as a result. DYFS workers made attempts to accommodate his changing schedule. The judge rejected Louis's numerous excuses for missing visitation, and found that his interest in visiting with Robin was "at best, minimal."
It is well established that the "termination of one parent's rights is not appropriate merely because the other parent is unfit or has surrendered his or her rights. . . .
[T]he conduct of one parent can be relevant to an evaluation of the parental fitness of another parent." M.M., supra, 189 N.J. at 288-89. Here, as noted, there is evidence that Louis left Robin with Sharon in September 2007, even though he knew Sharon was going through a mental "thing" and suspected she was abusing PCP. He also continued to associate with Sharon, even after she relapsed into PCP abuse, and as a result failed to provide the child with a safe home.
Based upon the totality of the facts in the record, we are satisfied that the trial judge's conclusion that DYFS satisfied the first prong, i.e., that Robin's "safety, health or development has been or will continue to be endangered by the parental relationship [with Louis]," by clear and convincing evidence is fully supported by the record. N.J.S.A. 30:4C-15.1(a)(1).
Louis argues that DYFS failed to establish the second prong because the trial judge relied solely on Sigafoos' testimony, which Louis claims was unreliable.
The judge stated:
As to [Louis], we go back to Dr. Sigafoos' testimony that his personality is such that the prognosis is very poor for any improvement in his psychological makeup. While he's able to go to school and go to college and apparently obtain fairly good grades, this does not affect the psychological makeup and there is a strong possibility of continuing drug involvement and relapse.
The trial judge's reliance on Sigafoos' testimony is somewhat problematic because Sigafoos' finding that Louis had a very low IQ appears to be inconsistent with other findings in the record, such as Udell's, and also with his having obtained a GED and attended a community college.*fn8 Nevertheless, Sigafoos was the only mental health professional who actually administered intelligence tests and neither his report nor his testimony were disputed at trial by any expert presented by Louis.
In addition, we find it significant that the judge ultimately based his decision on Sigafoos' findings concerning psychological disabilities, rather than on his findings concerning Louis's low level of cognitive ability. Indeed, the judge's findings included the facts that Louis had been able to go to college and obtain good grades. Nevertheless, there was undisputed evidence that Louis had significant problems with interpersonal relationships, suffered from narcissistic personality disorder, obsessive-compulsive personality traits, schizoid personality traits, and an antisocial personality disorder, was "cognitively rigid," remained "absorbed in his own world," and was indifferent to other people.
The judge's finding that there was a strong possibility that Louis would continue his involvement with drugs is supported in the record. There was undisputed evidence that Louis had an extensive criminal record involving the selling of drugs, including PCP, the drug abused by Sharon and, on at least one occasion, by Louis. During his involvement with DYFS, there were occasions when Louis did not attend drug screenings, refused to undergo drug testing, failed to attend substance abuse evaluations, and, as noted, tested positive for PCP use. He also refused to participate in the extended drug assessment requested by DYFS, maintaining, as he does on appeal, that he thought it was unnecessary. Based upon the record before us, we strongly disagree with that assertion.
Udell, who saw Louis in May 2009, opined that he had a low probability of suffering from a substance abuse disorder. However, it appears that Udell's conclusion was largely based upon Louis's self-reporting concerning his drug use. Sigafoos, who testified after the June 2009 positive PCP test result, reached the opposite conclusion.
Having reviewed the record, we are satisfied that the judge's conclusion that DYFS proved the second prong by clear and convincing evidence is well supported in the record. There was no basis to conclude that the problems that informed the judge's conclusions with respect to the first prong had been resolved or were likely to be resolved in the foreseeable future, when viewed in terms of Robin's need for permanency.
Louis argues that DYFS failed to prove the third prong because DYFS required him to undergo an unnecessary extended substance abuse evaluation and refused to accommodate his work schedule to allow him to visit with Robin.
The judge found that:
Services have been offered to [Louis], psychological evaluations, psychiatric evaluations, [and] substance abuse counseling. As to the substance abuse, he missed the first two appointments. It was recommended that he go for extended assessments. He did not show for that. The case was then closed for noncompliance.
Visitations were offered; and as I indicated earlier, were missed on several occasions, late on many other occasions, but the [c]court considers to be insufficient reasons for someone claiming to strongly desire reunification with their child.
DYFS provided Louis with a substance abuse evaluation to address his needs. Once Louis finally attended in November 2008, the counselor recommended that he undergo an extended assessment based on his history of selling drugs, including heroin, crack cocaine, and PCP. The program would have consisted of a continuation of the substance abuse evaluation that Louis had participated in and would also have provided him with education and support. Louis refused to comply, even after his unsupervised visitation was suspended. The positive test for PCP use in June 2009 confirmed the propriety of DYFS's decision not to allow Louis to have unsupervised contact with his daughter and supported the counselor's recommendation that he undergo an extended assessment.
DYFS also provided Louis first with unsupervised and then supervised visitation. Contrary to Louis's representation, the record demonstrates that DYFS agreed to accommodate Louis's requested visitation schedule changes on several occasions. Those facts are set forth above and need not be repeated here.
Consequently, we find that DYFS met its burden of proof with respect to the third prong, as the judge found.
Finally, Louis argues that DYFS failed to prove the fourth prong because Sigafoos' conclusion that Robin had failed to bond with him, and had bonded to Jane, was "severely flawed." We disagree.
The trial judge found that termination of Louis's parental rights would "not do more harm than good." While there was evidence that Louis and Robin had interacted during supervised visits, the judge relied upon Sigafoos' testimony that there was "no attachment between [Louis] and [Robin]. They appear to [Sigafoos] as if they were two independent children occupying time together. [Robin] knew who he was. Even called him daddy, but [Robin] appeared to be more concerned with the caseworker leaving the room than with her father." That reliance is justified by the record, including Louis's frequent absences from Robin's life due to incarceration and inconsistent visitation, and the fact that no significant bonding was ever observed by the DYFS workers. This case is distinguishable from New Jersey Division of Youth & Family Services v. R.L., 388 N.J. Super. 81 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007), where the judge found that the bonding expert's evaluation was "hardly determinative in light of the fact that it consisted of observation in a controlled environment for slightly over one hour." Id. at 101. In that case the bonding expert's findings were directly contrary to the caseworker's and other psychologist's conclusions, and he failed to perform a bonding evaluation with the foster parents. Ibid. Those factors are not present here.
Louis argues that Sigafoos' conclusions are not credible because his reports "of what occurred at the two bonding evaluations are startlingly similar despite the vastly different conclusions." Louis claims that during his bonding evaluation with Robin, he played with his daughter and read to her, and that Robin explored the room, just like she did during the evaluation with Jane. Louis argues that although the interaction was similar, Sigafoos concluded that Robin had a secure bond with Jane and an insecure/avoidant bond with him. Again, we disagree.
In his report, Sigafoos wrote that he had observed Louis interacting with Robin by bringing her gifts, reading her a book, playing peek-a-boo, building a house out of mats, and counting to ten, and that Robin interacted with him by singing the "ABC" song to him. However, Sigafoos also observed that Robin watched as the caseworker left the room, became increasingly controlling of her own activities, failed to respond to Louis's question, sat at a table by herself, and generally became "more independent and does her own thing as [Louis] just watches." At trial Sigafoos testified that Louis's interaction with Robin was "superficial," and that when they interacted "they were like two parallel children." Louis "played with toys as the child played by herself."
Based on those observations, Sigafoos concluded that there was no "attachment bond" between father and daughter, explaining that the "interaction that took place was influenced by the client and bringing gifts for the child that initially attracted her but it was short lived." In his conclusion, Sigafoos did note some positive interaction, observing that Robin "can explore her surroundings," and showed "signs of some reciprocity." But, he also reported symptoms of "impaired attachment," including "superficially engaging, lack of eye contact by [Louis], lack of affection by [Louis], child moved away from [him], [and] the child was controlling and demanding of [Louis]."
Conversely, although Sigafoos reported a few similarities between the evaluations, in that Robin played with Jane, explored the room, and brought Jane a book to read, the differences between the level and type of interactions were starkly different. While in Jane's presence, in contrast to Louis's presence, Robin explored the room and then brought a toy back to Jane, thereby using her "as a base of operations." Robin also laughed easily, interacted with Jane, and appeared comfortable and confident in her presence. Thus, the description of what transpired between Robin and Jane was not, in fact, "remarkably similar" to what transpired between Louis and Robin.
Similarly unpersuasive is Louis's argument that one of Sigafoos' "greatest concerns was that [Louis] did not prepare [Robin] to leave the evaluation." Sigafoos wrote that "[a]s the session comes to an end the worker comes in. [Louis] does not prepare [Robin] to leave but instead the worker does this." Sigafoos testified that he thought it was "interesting" that Louis "did not do anything in order to prepare the child to leave." Truitt testified that Sigafoos' observation was accurate, but said that Louis often prepared Robin to leave after the visitations. Even if Louis's failure to prepare Robin to leave the session was an isolated event, Sigafoos found only that this behavior was "interesting" and not, as asserted by Louis, of "greatest concern."
Having carefully reviewed the record before us, we conclude that the judge's findings regarding the fourth prong are fully supported by the evidence under the required standard. The Supreme Court has focused on "the paramount need [that] children have for permanent and defined parent-child relationships" in making the determination on the fourth prong. J.C., supra, 129 N.J. at 26. The record as a whole supports the conclusion reached by the trial judge, based on a clear and convincing standard, that termination of Louis's parental rights would not do Robin more harm than good.
In summary, we conclude that the judge's determination that DYFS satisfied each of the four prongs with respect to Louis by clear and convincing evidence is well supported in the trial record. Robin is a child who needs permanency, and the record supports the conclusion that her need will best be satisfied by implementation of the trial judge's decision. Consequently, we affirm the termination of Louis's parental rights.