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Deborah Boru v. Peter Foy

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 4, 2011

DEBORAH BORU, PLAINTIFF-RESPONDENT,
v.
PETER FOY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-26-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 24, 2011

Before Judges Yannotti, Espinosa and Skillman.

This case concerns a custody dispute between a natural father and a maternal aunt who asserts she is the child's psychological parent. For approximately two and one-half years, the child lived in New Jersey with her terminally ill mother and maternal aunt, plaintiff Deborah Boru, while her father, defendant Peter Foy, remained in New Mexico. Peter appeals from an order that granted custody to Deborah after his wife's death. For the reasons that follow, we conclude that there was sufficient proof of "exceptional circumstances" to overcome the presumption in favor of a natural parent's right to custody and af irm.

K. was born in February 2003. At the time, her mother, Diane, and Peter had been married for approximately sixteen years. In 2004, Diane and Peter moved to New Mexico in the hope of finding greater opportunities.

In November 2006, Diane was diagnosed with Stage 2 tongue cancer. She decided to go to New Jersey with K., then three years old, for her treatment and live with Deborah. According to Peter, they agreed he would stay in New Mexico and that she would return to New Mexico following treatment. Unfortunately, Diane suffered through a series of recurrences, surgeries and treatments until her death approximately two years later. Aside from one visit to New Mexico in June 2008, she never returned.

Diane underwent her first surgery in December 2006, a tongue dissection. She remained in the hospital for two weeks, recuperated for six weeks at Deborah's home and then began an initial round of radiation and chemotherapy that was completed in early April 2007.

In May 2007, Diane noticed another nodule on the side of her neck, which tested positive for cancer. She had a second surgery in June 2007 to remove the lymph nodes on the left side of her neck. Her treatment continued through the summer. In August, tests confirmed that the cancer had metastasized to her scalp and lung.

Diane continued in treatment, receiving radiation and chemotherapy on and off until January 2008. During this period, Diane was going through rehabilitation, learning how to speak again, but was only able to handle one to two hours of activity outside the home.

In April 2008, an MRI revealed that Diane's cancer had spread further. The tumor on her scalp was enlarged, beginning to pierce the lining of her brain, and the tumor on her lung was also starting to grow. The doctor who had been treating her told her there was no plan for further treatment. Diane went with Deborah to another cancer center, which provided her with a plan of treatment from April to October 2008.

Diane had another setback in September 2008, when she discovered another tumor on her scalp. The treatment plan was modified to extend radiation and chemotherapy to December 2008.

In mid-December, Diane learned she had a tumor growing in her right middle ear. Chemotherapy was resumed again. Diane required emergency hospitalization for double pneumonia on December 29, 2008, and remained hospitalized until February 8, 2009, when she was transferred to a rehabilitation facility and ultimately discharged to Deborah's home.

While she was hospitalized, Diane consulted with an attorney and wrote the following letter to defendant:

Peter - I implore you, for [K.'s] sake that in the event that something happens to me, that you would allow [K.] to continue her life with my sister as her guardian, living with her in New Jersey and continuing her education under Deborah's guardianship. This is where

[K.] belongs because this has been her home since we left New Mexico over 2 years ago.

This is my wish and I beg you to please honor what I am requesting with my whole heart for [K.'s] best interest and future.

With utmost gratitude, Diane Foy 1/15/09 On the same date as this letter, Diane executed a will in which she named her sister as guardian for K. Peter stated that he did not receive the letter until after Diane's death.

Diane returned to Deborah's home on February 8, 2009, but had to be hospitalized on February 16, 2009. Deborah called Peter, who came to New Jersey on February 21 and stayed until March 1, 2009. Before leaving, he told Deborah's husband that he knew this was the last time he would see his wife alive, that he would take K. back to New Mexico and the government would help him financially.

Diane died one week later, on March 8, 2009.

Peter had been accepted for training as a corrections officer in mid-December 2006 and began his employment in January 2007. He made his first visit to New Jersey in March or April 2007. Although he could have applied for up to twelve weeks of paid leave, Peter came to New Jersey only a few times after that - in October 2007, February 2008, October 2008 and in February 2009, just prior to Diane's death. He has never alleged that he was unaware of Diane's progressively poor diagnoses. Yet, his testimony did not reveal any effort he made to determine whether

K. required additional care under the circumstances.

On the day after Diane's death, Deborah consulted with a child psychiatrist to determine the best way to tell K., then six years old, her mother had died. After Peter arrived, they sat in a circle with Deborah's mother and brother. Deborah told K. that her "mommy is with God now in heaven." K. had a flat affect, apparently in shock. She hugged Deborah and her grandmother. Peter also hugged and reassured K. She did not break down in tears until she joined Deborah when Deborah was telling her daughter about Diane's death.

On the day after Diane's funeral, Peter took K. to school and told the principal he intended to leave New Jersey that day, taking K., without telling Deborah. The principal attempted to dissuade him from this course of action and called the police. Deborah learned of Peter's plan coincidentally when she came to school to give her daughter cough syrup.

Later that afternoon, Deborah's brother and mother met with Peter and convinced him that it would not be good for K. to be taken out of school suddenly. He agreed to let her stay until the Easter recess. Peter admitted in his testimony that he had not given any thought to how K. might react if told she was going to leave for New Mexico so soon.

Deborah filed an order to show cause and a verified complaint for custody of K. on March 13, 2009. The order to show cause sought to restrain Peter from removing K. from New Jersey, based upon the conditions observed and documented at his home during a June 2008 visit by Diane, Deborah, K., and Deborah's daughter. Although Peter testified that the house was clean, the trial judge described "despicable conditions" of "complete filth" at the house that included dog feces both inside the house and in the rear yard. The trial judge entered orders on April 3, 2009, continuing custody of K. with plaintiff, appointing a guardian ad litem for K., ordering a diagnostic evaluation of the parties by the Bergen Family Center and a home inspection custody/parenting time investigation, and scheduling a plenary hearing.

In addition to the parties, there was extensive testimony from both fact and expert witnesses at the plenary hearing. The trial judge found Deborah, her husband, brother, sister, and mother, and K.'s school principal "extremely credible." He found the testimony provided by Peter's father "added nothing" and that the testimony of Peter's two friends from New Mexico was "facile and insubstantial."

Deborah testified that when Diane and K. came to live with her, Diane became unable to perform the daily tasks required to care for K. Although Diane remained the "mom" in making decisions, Deborah became primarily responsible for K.'s day-today care. The list of parental tasks performed by Deborah bears this out. She toilet-trained K., took her to medical appointments, prepared her meals, put her to bed each night, and took her to and from school each day. She enrolled her in parochial school, arranged for a scholarship for her, and helped her with homework. Deborah also enrolled and paid for K. to participate in extra-curricular activities such as karate, ballet, swimming and guitar lessons. Deborah bought K.'s clothes, toys, and school supplies. She neither asked for nor received any reimbursement from Peter for these expenses or other financial support for K.

The trial court observed that Deborah was "extensively involved" in K.'s education, volunteering at school, serving as class mother, and participating in parent-teacher meetings as

K.'s surrogate parent. The trial court found that, as Diane struggled through her terminal illness, K.'s care and nurturing was increasingly seen to by Deborah and her family. The court concluded there was "no reasonable doubt" that Deborah "not only provided, but also actually met or exceeded all of [K.'s] maternal needs that could not be provided by her fatally ill mother."

Peter testified that he and his daughter were "[a]lways very close." He described the care he provided to K. before she and Diane moved to Deborah's home. Although Diane and her mother did most tasks for K. when they lived with Diane's mother, he stated that everything changed when they moved to New Mexico. Since Diane had full-time employment and he did not, he and Diane had to "work together . . . as a team" to care for K. During the period from October 2004 to June 2005, he watched K. while Diane was at work.

Peter testified that, throughout her illness, he always believed Diane was going to get better and return to New Mexico. He also testified that it was his understanding that Diane provided the primary care for K. after she went to live with Deborah. He agreed, however, that there were times when she was too sick to care for K. and then, there were "a number of people" who cared for K, including Deborah. He knew that, "at least two times," Diane's mother took "extensive time off from work" for months at a time.

Peter considered his separation from his wife to be involuntary and sent her $200 per month for support in addition to providing reimbursements received from his health insurance company. He testified that he did not visit more frequently or take any family leave for financial reasons. However, Diane's brother, a corrections officer who helped Peter obtain his job, testified that Peter could have arranged his work schedule to visit more frequently and could have applied for up to twelve weeks paid family leave. Peter did neither.

Peter made no effort to seek counseling or psychological support for K. after Diane's death. Instead, he intended to take her back to New Mexico, without notice to Deborah and without any identified plans in place for her education, daycare or counseling, on the day after her mother's funeral, abruptly severing her ties to the family and school community she had known for approximately one-half of her life.

When the plenary hearing was held approximately one year later, Peter still had not made reasonable plans for K.'s care. He never asked K.'s school to provide him with any reports of her progress. His plan to take K. to and from school failed to account for aspects of his employment which interfered with that plan. For example, the prison where he works is subject to unannounced "lockdowns" in which he would be required to stay in the institution for up to eighteen hours. Further, his schedule was subject to change every six months. Asked about caring for

K.'s psychological needs, Peter testified there was a place near his home that offered counseling services. However, he did not intend to pursue that further until he had custody and provided no indication of having made any effort to ascertain K.'s needs or the service's ability to meet those needs. He also testified he planned to take parenting courses that would "probably" be in Albuquerque but, nearly one year after he first planned to take

K. to New Mexico, had not taken such a course.

The trial court stated Peter "presented at best a fanciful approach to the prospect of caring for [K.], ignoring his work schedule realities, and offering at best sketchy details on the school [K.] would be attending and who would be caring for her in New Mexico." The court further observed that Peter's "proffered New Mexico babysitter was married to a violent felon who should not be permitted anywhere near [K.]"

Peter retained Miriam Rand to conduct a home study and social evaluation of him. She did not, however, testify at the plenary hearing. A few weeks after she completed her report, Peter agreed to her suggestion to set up a website for him to solicit monetary contributions for his custody case, which led to his appearance on a national television show.

Peter admitted he did not provide Deborah with any financial contribution for K.'s care. Noting that K. received monthly checks from the government, Peter stated the "only thing" he had done was give K. gifts. He testified that he paid for K.'s birthday party at an ice skating rink in 2008 but did not skate with her at the party because he did not feel well that day.

Peter's telephone records reflected infrequent calls to New Jersey. The court found Peter's testimony failed to supply any reason why he was unable to come to New Jersey to be with his wife and daughter, why he could not visit his daughter more often or bring her back to New Mexico, even for vacations. In addition, the trial judge found that, when he visited, Peter "paid little attention to [K.], but managed to have a number of reunions with area friends. He never helped bathe, dress, feed or in any other way care for [K.] He did not put her to bed, tell her a bedtime story, do her laundry, prepare a meal for her, or take her to school."

The court's characterization of Peter's "lack of interest" in K. is echoed in a diary entry written by Diane, dated July 13, 2008, regarding their one trip to New Mexico:

It's been 2 years since [K.] and I have been home - [He] walks by her[,] shows no affection toward her Her sheets were on for 2 years - "I thought they were still clean."

- Shows no thoughtfulness toward her or me for that matter.

K.'s school contracted with Nicole Garibaldi-Denude, L.S.W., to provide her with grief counseling after Diane passed away. She was not paid for her testimony, which she volunteered out of concern for K. She met with K. weekly from March 2009 until June 2009, and at the time of trial was seeing her biweekly. At their first meeting, Garibaldi had K. draw a picture of her family. In the picture she included Deborah, Deborah's son and daughter, herself, Deborah's husband, Diane, her grandmother, Deborah's in-laws, and then Peter, in that order. According to Garibaldi, this picture represented that K. views Deborah as her primary caregiver and Peter as an extended family member. During their first session, K. told Garibaldi she was fearful of "leaving her aunt and of her father taking her away."

This fear appeared to be realized in April 2009. K. was so upset following a visit with Peter that her school contacted Garibaldi. K. told Garibaldi that defendant said he was taking her to New Mexico that weekend. K. said she was very scared, sad, and upset, and did not want to see her father. Garibaldi testified it was not appropriate for Peter to make such a comment to K. and that it did not "show too much awareness to her needs." According to Garibaldi, K. told her "[p]robably at least 20 times[,]" that she wanted to stay with Deborah in New Jersey, and identified one of her "big worries" as Peter taking her away.

Garibaldi testified that K. shares a parent/child type bond with Deborah. Although she never met Peter, she also testified that K. does not share such a bond with him. In her opinion, "transferring custody of K. to [Peter] would be psychologically damning to K.[,]" and such damage could be irreversible.

Dr. John Schmerler, a psychologist employed by the Bergen Family Center, was appointed by the court to conduct a custody evaluation and testified for Deborah as an expert in clinical psychology. Dr. Schmerler found that Deborah and K. share a parent/child bond that developed during the two and one-half years K. was living with Deborah. Dr. Schmerler testified that Deborah was a "significant caretaker" prior to Diane's death and

K.'s primary caregiver after Diane died.

Dr. Schmerler testified that transferring custody of K.

from Deborah to Peter "would cause undue emotional harm to [K.]" He stated the transfer could negatively affect K.'s ability to form relationships in the future. Dr. Schmerler opined that K. was flourishing under Deborah's care and that Deborah was providing a strong support system for K. He also believed Peter has a support system in place in New Mexico to care for K. Dr. Schmerler opined that the best interests of K. would be served by her residing with Deborah but developing and reestablishing a relationship with her father. He felt a decision as to whether that arrangement should be permanent or transitory should be deferred.

Dr. Charles Hasson, a licensed psychologist, also testified as an expert for Deborah. Dr. Hasson conducted one clinical interview with Peter that lasted approximately three hours. Dr. Hasson administered a variety of psychological tests to Peter which revealed he "has difficulty with feelings and expressing them and having social sensitivity[.]" According to Dr. Hasson, Peter does not have the "ability to understand his child's emotional needs, his child's pain or anxiety." When Dr. Hasson asked Peter what he would have done differently in this case, Peter said he would have left with K. to New Mexico once Diane was buried, an answer Dr. Hasson found revealed "a lot of insensitivity."

Dr. Hasson also interviewed K. and administered psychological tests to her. He interpreted K.'s description of Deborah as being "more competent, more emotionally supportive or nurturant, more consistent for setting rules, and having more positive personality traits." K. also told Dr. Hasson her biggest fear is being taken away from her present environment.

A videotape of a session Dr. Hasson observed with Peter and

K. was played at the plenary hearing. There was very little interaction between the two during the first thirty-six minutes. Peter made disparaging remarks about Deborah, including veiled threats about getting even with her and ending K.'s relationship with Deborah. Dr. Hasson stated that Peter "made no attempt to ask [K.] how she was feeling or comfort her[.]" He saw no emotional connection between Peter and K. during the interview, and when Peter tried to hug his daughter, "she was frozen." Dr. Hasson stated he did not observe a parent/child type bond between Peter and K. and described Peter as "psychologically absent" for the last three years of her life.

In contrast, Dr. Hasson's observations of K. with Deborah reflected an emotional connection between them. He stated that Deborah "provides emotional nurturing, physical nurturing, care. She provides all the aspects of a parent. She['s] involved in her schooling, teaching, taking her to school, doing things with her. Having a part of her life. Living with her. There's nothing more she can do to become more of a parent."

Dr. Hasson testified that if Peter were to be given custody of K., it would have "a devastating impact." He explained, "This child has gone through a -- a trauma. You know, she's healing, she's doing very well, but she'd be wrenched away from any sense of family, stability. And I don't believe she would overcome it readily, I just don't." He considered the damage irreversible, "a double loss; she loses her mother, then she loses her aunt[.]" Dr. Hasson opined that Peter will never be able to form an emotional bond with K. His recommendation was that Deborah be given legal and residential custody of K.

Dr. Hasson expressed concern about a joint custody arrangement, believing Peter would not work cooperatively with Deborah. On cross-examination, Dr. Hasson testified that it was his opinion that Peter is an unfit parent.

N.G. Berrill, Ph.D., a forensic psychologist, testified as an expert for Peter. He acknowledged the existence of a strong psychological bond between K. and Deborah and the lack of a meaningful relationship between K. and Peter. He opined that Peter "meets the threshold of an adequate parent[.]" He recommended that K. be returned to New Mexico after receiving counseling and suggested the transfer occur during the summer, after the school year was over. The trial judge found Dr. Berrill's testimony "unimpressive and unpersuasive."

The trial judge noted that this custody dispute was governed by the two prong test articulated in Watkins v. Nelson, 163 N.J. 235, 237 (2000). Because there was "no concerted effort to portray [Peter] as unfit," the judge observed that the issue to be resolved was whether "exceptional circumstances" existed to satisfy the first prong of the Watkins test. In a detailed written opinion, the court explained how the evidence demonstrated that Deborah satisfied the criteria for a "psychological parent." He then proceeded to the second prong of the Watkins test, a "best interests" analysis and determined it was in K.'s best interests to remain in the legal custody of Deborah.

In this appeal, Peter argues that the presumption in favor of a natural parent was not overcome because Deborah failed to prove she was a "psychological parent." Specifically, he contends he did not consent to the development of a parent-child relationship between Deborah and K. and that Deborah could not have achieved the status of psychological parent while Diane was alive. He also argues that, in the absence of clear and convincing evidence that granting him custody would cause K. serious psychological harm, the custody award must be reversed. Finally, he argues that because the best interests factors are in equipoise, he should have been awarded custody. After careful consideration of the record, briefs and arguments of counsel, we are satisfied that none of these arguments has merit.

I

In a custody dispute between a natural parent and a third party, there is a presumption in favor of the natural parent which arises from a parent's "fundamental right to parental autonomy." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 38 (2011). That right is recognized as "a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution" which is "rooted in the right to privacy." Moriarty v. Bradt, 177 N.J. 84, 101 (2003); see also Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 645, 652 (1944); Watkins, supra, 163 N.J. at 245; V.C. v. M.J.B., 163 N.J. 200, 218, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000).

The parent's right to custody is not absolute, however. The presumption in favor of the parent will be overcome by "a showing of gross misconduct, unfitness, neglect, or 'exceptional circumstances' affecting the welfare of the child[.]" Watkins, supra, 163 N.J. at 246. When a third party seeks custody, the court must engage in a two-step analysis. First, the court must determine whether the presumption in favor of the legal parent is overcome by either a showing of "unfitness" or "exceptional circumstances." If either is satisfied, the court must then decide whether awarding custody to the third party would promote the best interests of the child. Watkins, supra, 163 N.J. at 254; P.B. v. T.H., 370 N.J. Super. 586, 594 (App. Div. 2004); see also Moriarty, supra, 177 N.J. at 117 (when the presumption in favor of parental decision-making is overcome, court should determine visitation schedule based upon the child's best interests).

In Watkins, the Court observed that the full scope of "exceptional circumstances" remained undefined and would evolve through a case-by-case development. Watkins, supra, 163 N.J. at 248. Nonetheless, the Court provided important guidance for the application of that exception. First, the authority to intervene in the parent-child relationship arises from the State's parens patriae obligation to ensure that children will be properly protected from serious physical or psychological harm. Watkins, supra, 163 N.J. at 246. Therefore, the "exceptional circumstances" standard "always requires proof of serious physical or psychological harm or a substantial likelihood of such harm." Id. at 248; see also In re D.C., 203 N.J. 545, 571 (2010). However, the proof of harm required to trigger the parens patriae authority is not coextensive with the proof necessary to terminate parental rights. The Court explicitly stated that "exceptional circumstances" may rebut the presumption in favor of a parent seeking custody even if there is not a basis for terminating parental rights on statutory grounds and, indeed, even if the parent is "deemed to be a fit parent." Watkins, supra, 163 N.J. at 246-48; see also V.C., supra, 163 N.J. at 219; Sorentino v. Family & Children's Soc. of Elizabeth, 72 N.J. 127, 131-32 (1976)(Sorentino I), appeal after remand, 74 N.J. 313 (1977)(Sorentino II).

The focus of the inquiry is upon protecting the child from harm and so, "exceptional circumstances" may exist when there is a "potentiality" or "probability" of serious physical or psychological injury to the child. Watkins, supra, 163 N.J. at 246-47, 248. In assessing the potential injury, it is helpful to recall the "good illustration" of "exceptional circumstances" cited by the Court, In re Allen, 28 Wn. App. 637, 626 P.2d 16, 23-24 (1981). Like this case, Allen did not turn upon any unfitness of the natural father. However, the Wisconsin court held that a deaf, learning disabled child who had resided with her stepmother and three siblings for four years would suffer substantial harm if custody was awarded to a fit natural father who did not know sign language rather than to the stepmother who did. Watkins, supra, 163 N.J. at 248.

II

The central inquiry here is whether "exceptional circumstances" existed that overcame the presumption that Peter, as the legal parent, should be awarded custody. As discussed infra, we are satisfied that the evidence established such "exceptional circumstances" here. However, as a key dispute between the parties relating to that issue was whether Deborah was a psychological parent, we turn to consider that question.

Psychological parent cases constitute a subset of "extraordinary circumstances" cases and recognize "that children have a strong interest in maintaining the ties that connect them to adults who love and provide for them." V.C., supra, 163 N.J. at 219, 221. A third party may become a psychological parent as a result of "the volitional choice of a legal parent to cede a measure of parental authority to a third party[.]" Id. at 227. Four essential requirements must be satisfied for one to become a psychological parent:

[T]he legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged. [Id. at 223.]

The evidence persuasively establishes that K. resided with Deborah for well over two years,*fn1 and that Deborah performed parental functions for K. to a significant degree. All the experts, even the psychologist who testified on behalf of Peter, concluded that there was a strong parent-child bond between Deborah and K. We are therefore satisfied that the second, third, and fourth prongs of the V.C. test are met.

Peter argues, however, that because Diane was K.'s custodial parent, he was entitled to rely upon his understanding that, until she died, Diane assumed all parental responsibilities for K. He also argues he did not consent to or foster a parent-child relationship between Deborah and K.

Even accepting, arguendo, Peter's characterization of Diane's level of activity in K.'s life prior to her death, Diane's status does not preclude Deborah from becoming a psychological parent. Consistent with the criteria for the "exceptional circumstances" exception, the test adopted in V.C. is designed "to evaluate whether a third party has become a 'psychological parent' to a child of a fit and involved legal parent, and thus has standing to bring a custody suit." P.B., supra, 370 N.J. Super. at 595 (emphasis added). Therefore, neither Diane's nor Peter's status is a determinative factor in an evaluation of whether Deborah became a psychological parent.

The "critical" factor in that evaluation is whether Diane and Peter were "participant[s] in the creation of the psychological parent's relationship with the child[,]" and "cede[d] a measure of parental authority to a third party[.]" V.C., supra, 163 N.J. at 224, 227.

The requirement of cooperation by the legal parent is critical because it places control within his or her hands. That parent has the absolute ability to maintain a zone of autonomous privacy for herself and her child. However, if she wishes to maintain that zone of privacy she cannot invite a third party to function as a parent to her child and cannot cede over to that third party parental authority the exercise of which may create a profound bond with the child. [Id. at 224.]

A parent's consent to the creation of such a bond need not be explicit. "For example, where a legal parent voluntarily absents herself physically or emotionally from her child or is incapable of performing her parental duties, those circumstances may constitute consent to the parental role of a third party who steps into her shoes relative to the child." Id. at 223 n.9. Because proof a third party is a psychological parent places that party on a parity with a legal parent for the purpose of acquiring standing to petition for custody, V.C., supra, 163 N.J. at 227; P.B., supra, 370 N.J. Super. at 595, we examine Peter's conduct, and not that of his deceased wife, to determine whether there was consent to the development of a parent/child relationship between Deborah and K.

The weight due Peter's stated belief that K.'s parental needs were met by Diane throughout her terminal illness is substantially undercut by his own testimony, which revealed an awareness of facts that rendered this belief unreasonable. As Peter testified that he cared for K. in New Mexico while Diane worked, he was undoubtedly aware of the daily demands of caring for his daughter. In the next two and one-half years until her death, Diane suffered through repeated surgeries and courses of radiation and chemotherapy. Peter testified that Diane's mother took off extended periods of time from work - months at a time - at least twice, to care for Diane. His awareness that Diane needed such assistance is inconsistent with a belief that she was fully capable of caring for K.'s needs.

Certainly, Peter's stated beliefs that Diane was capable of caring for K. and that she would get better and return to New Mexico became unsustainable in April 2008, approximately one year before Diane's death. The metastasis of Diane's cancer, evident as of August 2007, had progressed to the point where one tumor spread to the lining of her brain and another on her lung had grown significantly. Her treating physician told her no further treatment was planned, essentially telling her to abandon hope. Despite this development, Peter did not come to New Jersey until six months later. His testimony revealed no effort to determine to what extent K.'s needs were met by Diane during this stage of her illness.

Moreover, as the trial court found, Peter paid little attention to K. during his infrequent visits. "He never helped bathe, dress, feed or in any other way care for [K.]. He did not put her to bed, tell her a bedtime story, do her laundry, prepare a meal for her, or take her to school." The court reached the "inescapable conclusion" that Peter was "content with the living arrangements: He in New Mexico and his wife and daughter in New Jersey." The record provides ample support for this conclusion.

In the face of facts that plainly revealed Diane's ability to care for K. was substantially diminished by her terminal illness, Peter allowed the gap in parental care to be filled by Deborah. The evidence also establishes the voluntariness of this choice. He offered no support for his contention that financial constraints prevented him from doing more to meet his daughter's needs. And, despite this contention, he failed to take advantage of opportunities for paid leave that would have afforded him such an opportunity. We are satisfied that the evidence shows Peter made a volitional choice to allow Deborah to assume a parental role for K. by voluntarily absenting himself physically and emotionally from her needs. Accordingly, all four prongs of the psychological parent test were met. See V.C., supra, 163 N.J. at 223.

III

Peter argues further that to award custody to Deborah, it was necessary for the court to find clear and convincing evidence that awarding him custody would cause K. serious psychological harm and that the trial court's failure to do so is fatal to the court's decision. After determining Deborah wasK.'s psychological parent, the trial judge proceeded to a best interests analysis without making a specific finding that there is a substantial likelihood that K. would suffer harm if custody was awarded to Peter. There would appear to be support for this procedure. In Watkins, the Court stated,

[W]hen a third party, such as a stepparent, establishes psychological parentage with the child, the third party stands in the shoes of a natural parent. That means that when the "exceptional circumstances" prong is satisfied, for example by establishing that the third party has become a psychological parent, the standard for determining custody is the same as between two fit parents: the child's best interest test articulated in N.J.S.A. 9:2-4c." [163 N.J. at 254 (citations omitted).]

See also Moriarty, supra, 177 N.J. at 114; V.C., supra, 163 N.J. at 227; Zack v. Fiebert, 235 N.J. Super. 424, 432-33 (App. Div. 1989). This passage suggests that the "exceptional circumstances" prong is satisfied, without more, by proof of the four criteria necessary to establish psychological parenthood. However, this excerpt from Watkins must be read in conjunction with the principle that preceded it: "Because the right to custody is a fundamental one protected by the constitution, . . . the parental termination or 'exceptional circumstances' standard is required to pass constitutional muster in this type of custody dispute." 163 N.J. at 254; see also Moriarty, supra, 177 N.J. at 116. As we have noted, the Court has instructed that the "exceptional circumstances" standard "always requires proof of serious physical or psychological harm or a substantial likelihood of such harm." Watkins, supra, 163 N.J. at 248; see also In re D.C., supra, 203 N.J. at 571. Therefore, we conclude that such harm must be established before the court undertakes a best interests analysis.

Turning to Peter's argument that clear and convincing evidence of such harm is required, we are guided by the principle that the proof required by procedural due process "turns on both the nature of the private interest threatened and the permanency of the threatened loss," Santosky v. Kramer, 455 U.S. 745, 758, 102 S. Ct. 1388, 1397, 71 L. Ed. 2d 599, 610 (1982). At the outset, we note the significant difference between the termination of parental rights and the award of custody here. *fn2

The termination of parental rights represents the greatest intrusion upon parental rights, permanently severing a parent's relationship with his or her own child, a severe and irreversible loss of a fundamental right. Ibid.; In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Consistent with the constitutional and statutory rights of the parent, both the standard and nature of proof is high. The State must "demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child" before such rights are terminated. Ibid. (emphasis added); see also Santosky, supra, 455 U.S. at 768, 102 S. Ct. at 1402, 71 L. Ed. 2d at 616-17; N.J. Div. of Youth & Family Servs. v. T.C., 251 N.J. Super. 419, 440 (App. Div. 1991) (termination justified "to spare the child grievous and irreparable psychological harm" (emphasis added)).

An award of custody to a third party does not involve a termination of all parental rights and is neither permanent nor irreversible. See Sorentino II, supra, 74 N.J. at 321 n.1; Faucett v. Vasquez, 411 N.J. Super. 108 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010). Therefore, different legal principles and a less stringent burden of proof apply to the custody determination. See In re Adoption of Children by L.A.S., 134 N.J. 127, 132-33 (1993); Watkins, supra, 163 N.J. at 253-54; see also Hoy v. Willis, 165 N.J. Super. 265, 275-76 (App. Div. 1978). In a termination case, it is necessary to show harm that is both "serious" or "grievous" and "lasting" or "irreparable" to protect the fundamental rights of parents. See J.C., supra, 129 N.J. at 10; T.C., supra, 251 N.J. Super. at 440; see also Santosky, supra, 455 U.S. at 768, 102 S. Ct. at 1402, 71 L. Ed. 2d at 616-17. However, for an award of custody under the "exceptional circumstances" criteria, it is only necessary to prove a substantial likelihood of serious physical or psychological harm. Watkins, supra, 163 N.J. at 248; see also In re D.C., supra, 203 N.J. at 571; Sorentino I, supra, 72 N.J. at 132 ("possibility of serious psychological harm to the child . . . transcends all other considerations" and justifies the court's exercise of parens patriae authority)(emphasis added); Hoy, supra, 165 N.J. Super. at 272.

Although the trial court did not make a specific finding regarding the likelihood of harm to K. if custody were awarded to Peter, we are convinced that such a finding is implicit in the trial court's factual findings. We are additionally convinced that there is sufficient credible evidence in the record to support that conclusion, whether measured by a clear and convincing or a preponderance of the evidence standard.

All the experts, including Dr. Berrill, the psychologist who testified on behalf of Peter, recognized the strong bond between Deborah and K. On a day-to-day basis, Deborah was "the source of the fulfillment of [K.'s] physical needs, [and] also the source of [her] emotional and psychological needs." See V.C., supra, 163 N.J. at 223 (quoting Carter v. Brodrick, 644 P.2d 850, 853 n.2 (Alaska 1982)). Peter's remarks during Dr. Hasson's evaluation and initial plan to abruptly remove K. without telling Deborah demonstrated that Peter had little regard for the relationship between Deborah and K. The trial court described Peter's testimony as "characterized by a deep-seated and freely expressed resentment" against Deborah and her family. The court found that because of Peter's "palpable" anger and resentment, there was "little doubt that [K.] would never again see the Boru family" if he was awarded custody. Given a child's "strong interest in maintaining the ties that connect them to adults who love and provide for them[,]" V.C., supra, 163 N.J. at 219, 221, the potential loss of her relationship with Deborah had a clear capacity to harm K.

Dr. Hasson testified it would have "a devastating impact" upon K. if Peter were awarded custody and that the damage would be irreversible. He explained that having gone through the trauma of losing her mother, an award of custody to Peter would wrench K. "away from any sense of family, stability." He did not believe K. would readily overcome the "double loss" of losing her aunt after losing her mother.

Dr. Schmerler also testified that transferring custody of

K. from Deborah to Peter would cause undue emotional harm to

[K.]" He stated the transfer could negatively affect K.'s ability to form relationships in the future. In addition, Garibaldi, the grief counselor who testified out of concern for

K., stated transferring custody of K. to Peter would be "psychologically damning" and such damage could be irreversible.

The evidence of a significant potential for harm to K. was effectively unchallenged by Dr. Berrill's testimony that Peter "meets the threshold of an adequate parent[.]" Dr. Berrill described K. as "a very young, very vulnerable, very wounded child" and recognized that Peter lacks any meaningful relationship with her. Yet, he discounted any negative feelings

K. expressed about Peter as likely the product of things she had heard from others rather than any personal experience she had with Peter, who visited infrequently and paid little attention to her. We find no reason to depart from the trial court's conclusion that his testimony was "unimpressive and unpersuasive."

Therefore, we are satisfied that the trial court correctly found that the presumption in favor of the natural parent had been overcome by "exceptional circumstances," and it was appropriate for the trial court to proceed to the second step of the Watkins analysis, a custody determination based upon a best interests analysis. Watkins, supra, 163 N.J. at 254.

IV

In his final argument, Peter claims the factors relevant to a best interests analysis were in equipoise, requiring an award of custody to him. We disagree.

The best interest factors are set forth in N.J.S.A. 9:2-4(c) and include: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children.

In addition to these factors, the status of the legal parent must be considered as having "significant weight" in the best interests balance. V.C., supra, 163 N.J. at 228.

Therefore, "when the evidence concerning the child's best interests (as between a legal parent and psychological parent) is in equipoise, custody will be awarded to the legal parent." Ibid.

The trial court reasoned that because it had determined that Deborah is K.'s psychological parent, the best interests analysis was to be conducted "as if two legal parents were in conflict, giving weight to the factors set forth in N.J.S.A. 9:2-4." The court did not explicitly state that it gave Peter's status as legal parent "significant weight." However, under the facts of this case, we are satisfied that this omission, although error, was harmless. The court painstakingly reviewed each of the pertinent statutory factors and explained in detail why each consideration substantially favored Deborah, leading to the conclusion that "the analysis of the required factors leaves no reasonable doubt that it is in [K.'s] best interests to remain in the legal custody of" Deborah.

In reviewing a decision of a family court, we defer to its factual findings, N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters[.]" N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); Cesare v. Cesare, 154 N.J. 394, 413 (1998). Here, there was sufficient credible evidence to support the court's conclusion, which is neither "clearly mistaken" nor "wide of the mark." E.P., supra, 196 N.J. at 104. We are satisfied that, even if given "significant weight," Peter's status as natural parent would not have altered the outcome of this analysis.

In summary, the first prong of the Watkins analysis was met by evidence of "exceptional circumstances," including the probability of serious psychological harm to K. We affirm the trial court's award of custody based upon its best interests analysis substantially for the reasons articulated in its written opinion.

Affirmed.


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