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New Jersey Division of Youth and Family Services v. E.I.M.T. and A.B

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 26, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
E.I.M.T. AND A.B., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF W.J.B. AND B.D.B., MINORS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-53-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2011

Before Judges Graves, Harris and Koblitz.

In these consolidated matters initiated by the New Jersey Division of Youth and Family Services (DYFS or the Division), defendant E.I.M.T. is the biological mother of two boys: W.J.B. (fictiously, Walter), and B.D.B. (fictiously, Bruce). Defendant A.B. is the biological father of Walter. Walter is now five years old and Bruce is four. Defendants appeal from a judgment of guardianship entered on July 29, 2010, terminating their parental rights.*fn1 For the reasons that follow, we affirm.

At the outset, we reiterate the well-settled principle that parents enjoy a fundamental right to raise and maintain a relationship with their children that is protected by the United States and New Jersey Constitutions. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). Moreover, "[t]he Legislature has declared that '[t]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare.'" K.H.O., supra, 161 N.J. at 347 (second alteration in original) (quoting N.J.S.A. 30:4C-1(a)).

"Parental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). "The State has a basic responsibility, as parens patriae, to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102 (citing K.H.O., supra, 161 N.J. at 347); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) ("The State has a responsibility to protect the welfare of children and may terminate parental rights if the child is at risk of serious physical or emotional harm.") (citing Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979)). Furthermore, the Legislature has declared that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a).

The New Jersey Supreme Court has "consistently imposed strict standards for the termination of parental rights." K.H.O., supra, 161 N.J. at 347. "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid. Under that test, termination is not appropriate unless the Division satisfies each of the following four statutory factors by clear and convincing evidence:

(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).]

"The statute requires that the State demonstrate harm to the child by the parent." K.H.O., supra, 161 N.J. at 348. The four statutory factors "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid. "When the child's biological parents resist the termination of their parental rights, the court must decide whether the parents can raise their children without causing them further harm." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.), certif. denied, 192 N.J. 68 (2007) (citing J.C., supra, 129 N.J. at 10).

In the present matter, E.I.M.T. and A.B. are both natives and citizens of Honduras where they had two children together.*fn2

A.B. reported that he came to the United States in 2004, and E.I.M.T. indicated that she arrived in 2005.

Their relationship continued in the United States, and Walter was born in Trenton on February 3, 2006. Four months later, on June 16, 2006, E.I.M.T. was ordered removed from the United States by Immigration and Customs Enforcement (ICE).*fn3 The order resulted from E.I.M.T.'s failure to attend a hearing on February 7, 2006. Her removal was not effectuated, however, and E.I.M.T. has remained in this country.

On March 14, 2007, E.I.M.T. contacted Womanspace, a women's shelter in Trenton. She reported that she lived with her boyfriend, A.B., who was "mentally abusive towards [her]," and that "she [could not] take it any longer." E.I.M.T. was admitted to the shelter the next day and received counseling and other services until she decided to return home on March 19, 2007.

Bruce was born in Trenton on June 18, 2007. Approximately five months later, on November 9, 2007, police responded to a report of harassment and domestic violence at E.I.M.T.'s residence. According to a report filed by Officer Avanzato, E.I.M.T. "stated that she had gotten into a verbal argument with [A.B.] during which [A.B.] began pushing her."*fn4 When a neighbor intervened, A.B. "fled the scene" and E.I.M.T. called the police. Nevertheless, E.I.M.T. declined to sign a complaint or seek a temporary restraining order.

On July 11, 2008, a detective with the Morris County Prosecutor's Office contacted the Division to report that a prostitute known only as "Giselle" had left her young child, subsequently identified as Bruce, in the care of M.M. On the same date, a DYFS caseworker visited M.M.'s home in Morristown. The worker learned from M.M. that she was caring for the child at the request of the child's mother, who was later identified as E.I.M.T. The worker observed that Bruce "appeared very neat and clean." In addition, M.M. stated that the child's father, allegedly Valentine Matos, had arranged "to pick up his son."

The DYFS worker returned to M.M.'s home on July 14, 2008, to conduct further interviews. After informing the worker that she was unaware of E.I.M.T.'s full name, M.M. indicated that E.I.M.T. had arrived at her home in March 2008 with a mutual friend. The friend stated that E.I.M.T. "had gotten a job in Atlantic City" and "needed someone to care for her son during the week." In addition, E.I.M.T. told M.M. "that she was a victim of domestic violence and did not have contact with [Bruce's] father." When M.M. explained that she had no bed for the child to sleep in, E.I.M.T. "told her that she could put [Bruce] to sleep on the floor." M.M. agreed to take the child, on the condition that E.I.M.T. purchase a crib.

According to M.M., Bruce arrived looking malnourished. She stated that the clothes E.I.M.T. brought for him were all "dirty," and Bruce "was coughing and had a fever." Because E.I.M.T. had not given her any insurance information, M.M. could not take the baby to the doctor, instead treating the symptoms with cough syrup and Tylenol until "his cold went away." During that time, M.M.'s attempts to contact E.I.M.T. were unsuccessful. M.M. reported that when E.I.M.T. eventually called her back, she stated that she had been unable to do so sooner because "she was busy working." Eventually, E.I.M.T. admitted that she was actually working as a prostitute in Morristown.

In addition, M.M. told the DYFS worker that the child's father came to her house to pick up Bruce on July 11, 2008. A.B. then returned to M.M.'s house on July 14, 2008, and he asked M.M. if she would care for both of the boys. M.M. agreed to do so, and A.B. gave her the following notarized letter:

Morristown, July 14th, 2008

To Whom And It May Concern: I, Valentin Matos . . . father of minors [Walter] and [Bruce] . . . give the custody to the baby sitting [M.M.] . . . because the mother abandoned . . . them[.] [M.M.] has been . . . baby sitting . . . [Bruce] for a long time, she is very nice with him taking [him] to the doctors for check up because he did not have the vaccines on time, she buy his baby foods, formula, clothing and everything that he needs.

I give this custody for indefinite time to [M.M.]. I hope you understand . . . and thank you for your attention to this letter. Cordially, /s/ Valentin Matos

Based on its investigation, the Division concluded that E.I.M.T. had failed to make appropriate arrangements for M.M. to care for Bruce on a long-term basis and had not provided M.M. with sufficient contact information in the event of an emergency. The Division allowed the boys to temporarily remain with M.M. after she signed a safety protection plan and promised not to allow either child to "go with anyone without contacting the worker at the Division."

On July 17, 2008, the Division filed an order to show cause (OTSC) and was granted temporary custody of the boys.*fn5 The OTSC stated: "The mother's current whereabouts are unknown and [she] allegedly is a prostitute. The father does not have the resources to care for the children."

The OTSC also provided for supervised visitation and on July 25, 2008, while A.B. was visiting the boys, he was asked by a DYFS worker why his name (Valentin Matos) did not appear on the children's birth certificates. At that time, he admitted he was actually A.B., the person named as the father on both boys' birth certificates. A.B. explained he came to this country illegally and was using the Matos identification for employment purposes.

On the return date of the OTSC, the court granted legal and physical custody of the children to the Division and ordered both E.I.M.T. and A.B. to undergo psychological and substance abuse evaluations and treatment. Additionally, the court required the Division to arrange for bi-weekly supervised visits for both parents. Later that day, A.B. tested positive for cocaine, and his substance abuse evaluation recommended outpatient treatment for "cocaine abuse" and "alcohol dependence."

E.I.M.T. underwent a substance abuse evaluation on August 12, 2008, and was referred for outpatient treatment at Hope House, a facility in Dover, New Jersey. At that time, she reported that she was living "with her boyfriend in a hotel." Six days later, on August 18, 2008, ICE issued an order of supervision authorizing E.I.M.T. to remain in this country so long as she complied with the conditions enumerated in the order.

In addition, both children underwent medical examinations arranged by the Division. Walter, then two-and-a-half years old, was described as "somewhat shy and apprehensive." His foster mother reported that he "said only a few single words," did not put words together or use pronouns, and had a "short attention span." She also indicated that he "tend[ed] to play by himself rather than with other children," had "little patience[,] and [became] angry very easily." He also had a history of asthma. The examiners recommended that Walter be evaluated by a speech therapist for his "speech delay" and undergo a child psychological assessment to address his "poor social skills."

Bruce, then fourteen months old, was described as "an extremely active baby" who daycare workers sometimes found "difficult to manage because of his high activity level." Although Bruce did "babble with inflection," he had not yet begun to use intelligible words, so examiners diagnosed him with "possible delayed speech." They also recommended that he receive "close observation for development of social skills and peer interactions."

On August 27, 2008, E.I.M.T. obtained a temporary restraining order against A.B. E.I.M.T. told police that A.B. had a history of violent and threatening behavior and once "caused [her] to abort." She also reported that A.B. had called her aunt in California "and told her he had handed [E.I.M.T.] over to immigration so that he could have both kids, but what he really wanted was to kill [E.I.M.T.] here." E.I.M.T. stated that A.B. called her "trash and a filthy whore" and "told her that if he saw [her] in Honduras he would kill her." She indicated that he also threatened to tell her mother and children in Honduras that she "was a worthless whore."

A meeting was also held in August 2008 to develop an individualized family service plan (IFSP) for Walter. To address Walter's communication deficiencies, his foster parents were given a list of daily activities and strategies. In addition, Walter was referred for one hour per week of developmental intervention and speech/language therapy.

E.I.M.T. underwent a forensic evaluation conducted by Maria

E. Merida, M.S., of the Atlantic Behavioral Health Family Enrichment Program on August 27, 2008. E.I.M.T. told Merida that she was raised by her aunt but was physically and sexually abused by her aunt's husband at age ten. She also indicated that she dropped out of school in tenth grade. While E.I.M.T. denied "any current suicidal or homicidal thoughts," she admitted that she had once "overdosed with birth control pills." She also reported that "things had gotten so bad . . . [that she] took a handful of Tylenol."

Describing her relationship with A.B. as "lengthy and violent," E.I.M.T. stated that she came to the United States "to escape him and try to make a life for myself and my other children." Nevertheless, she lived with him again once she arrived in the United States and, although "it was good for a while," she reported that he eventually "started again with the physical and emotional abuse." According to E.I.M.T., when she eventually left him in December 2007, A.B. "took all the papers on the children and turned [her] in to immigration." E.I.M.T. confirmed that she "worked as a prostitute for a short time" but indicated that she did so "to feed [her] children here and in Honduras."

Merida described E.I.M.T. as "a severely dysthymic individual with a hopeless demeanor and symptoms of Post Traumatic Stress Disorder, Chronic Type due to a lengthy history [of] domestic violence by the children's father, [A.B.]." Observing that E.I.M.T. was "unable to make effective choices," Merida concluded: "Given her demeanor, history of poor choices and questionable judgment, she should not be considered as a viable placement option for her children at this time." Additionally, she recommended that E.I.M.T. undergo a psychiatric evaluation, participate in therapy "to address her domestic violence history," and receive services to help her address "some of the children's medical issues."

A.B.'s paternity testing was completed in September 2008. The results showed that A.B. was the father of Walter, but not Bruce. One week later, E.I.M.T. identified another man, S.S., as Bruce's father. As previously noted, S.S. did not cooperate with the Division, and he is not a party to this appeal.

The Division also contacted International Social Services (ISS) to perform a home study on E.I.M.T.'s mother in Honduras as a possible placement for the children. However, Juana Bodden of ISS responded that such a study would be difficult because E.I.M.T.'s mother lived in "a very remote area," and it would "take about 12 hours by bus to get to [her] home."

On October 3, 2008, A.B. missed his scheduled intake appointment at an outpatient substance abuse treatment facility. That same day, the Division was contacted by E.I.M.T.'s aunt, M.C., and her husband, I.C. The couple provided an address in Massachusetts and informed the DYFS worker that they were interested in caring for Walter and Bruce. They further stated that they were both United States citizens. E.I.M.T. subsequently informed the Division that if she could not keep her children, she wanted them to be placed with M.C. and I.C.

The Division also investigated E.I.M.T.'s great aunt, E.C.B., as a possible placement. However, on October 9, 2008, placement with E.C.B. was denied "due to lack of space and adequate income." E.C.B. was sent a formal rule-out letter on February 3, 2009.

On October 14, 2008, A.B. was arrested for driving with a suspended license. He remained incarcerated until November 21, 2008, and did not inform the Division of his imprisonment until November 24, 2008. While A.B. was incarcerated, he missed a court hearing, and a final restraining order (FRO) was entered against him based on E.I.M.T.'s August 2008 domestic violence complaint. The FRO prohibited him from contacting, harassing, or threatening plaintiff, and required him to surrender any and all firearms and weapons.

E.I.M.T. was evaluated on November 13, 2008, by Dahiana P. Cajiao, M.S.W., L.S.W., a clinician at the Zufall Health Center (Zufall) in Dover, New Jersey. Cajiao reported that E.I.M.T. had attended five individual counseling sessions at Zufall since September 29, 2008, and that her treatment had focused on "prioritizing, organizing and managing expectations and tasks anticipated from [E.I.M.T.] from various systems in the community," as well as "exploring effective coping skills, self-care techniques and stress management." According to Cajiao, E.I.M.T. expressed "determination [to work] toward the healthy reintegration of her family and possible return to her native country to reunify with her other children and own mother." Nevertheless, Cajiao recommended that E.I.M.T. "continue weekly therapeutic individual sessions to further enhance her own family's well being."

Walter was evaluated again on November 14, 2008. Examiners reported that the child was "[e]asily frustrated," had a "short attention span," and displayed a "lack of verbal skills." The evaluation also revealed that he suffered from learning delays in every category tested. Therefore, he was deemed eligible for early intervention services.

E.I.M.T. and A.B. returned to court on November 20, 2008. At that time, E.I.M.T. and A.B. stipulated that E.I.M.T. had been "unavailable to care for [the boys] and could not be located." They further admitted this conduct "constitute[d] abuse or neglect pursuant to the law."

On November 26, 2008, Jacqueline Collazo, M.S., of the Center for Evaluation and Counseling, provided the Division with a forensic assessment of A.B. based on a clinical interview she performed. During the interview, A.B. called E.I.M.T. a "liar" and provided a history of their relationship. He claimed that he "brought her here to the United States" but "later found [out] she was some slut, prostitute." In addition, A.B. stated that E.I.M.T. lacked patience "and would hit [the children] as soon as they misbehaved." He admitted that he had "beaten" E.I.M.T. but maintained that "the anger of a Hispanic is different from an American." A.B. became "tearful" when discussing Bruce's paternity but maintained: "[H]e is still my son, anyway." Regarding his substance abuse, A.B. asserted that he "drank casually, now" and only "tried cocaine one time."

Based on psychological testing and the interview she conducted, Collazo found that A.B. "exhibit[ed] symptoms of a Narcissistic Personality Disorder." Describing him as "immature, irresponsible, and self-centered," Collazo stated that A.B. was often "indifferent to the welfare of others." Moreover, she determined that A.B. was "not likely to be able to drink responsibly given his addictive tendencies, self-indulgence, and impulsivity." Therefore, although A.B.'s failure to return for a second appointment limited her assessment, Collazo concluded that he was "not sufficiently stable to provide parenting for his children." She recommended that he secure housing, undergo "alcohol rehabilitative services," receive supervised visitation, and participate in psychotherapy and parenting skills training.

On December 30, 2008, E.I.M.T. reported to the Dover Police Department that A.B. had "been calling her on her cell phone and stat[ing] that he was going to kill her." As a result, A.B. was charged with violating the FRO. However, the charge was dismissed on the motion of the Morris County Prosecutor. Approximately one week later, A.B. complained to the Division that E.I.M.T. was calling his mother, who had custody of their two children in Honduras, to "talk negative" about him. He also admitted that he had called E.I.M.T. in violation of the FRO and informed the Division that he had moved to New Hampshire.

Walter was evaluated again on January 12, 2009, this time by Ruth Bouroult, a speech/language therapist in Boonton Township. Bouroult determined that Walter's "Total Language Score" placed him in the third percentile, and she recommended that he receive four speech/language therapy sessions (two individual and two group) per week. She also recommended that Walter's hearing be evaluated. Bouroult's findings were confirmed in a collaborative assessment performed by the Boonton Township School District, and Walter was deemed eligible for special education services.

In February 2009, the children's foster father notified the Division that he and the foster mother "had marital problems" and that their home was "unstable for the children." As a result, the boys were moved to a new foster home on February 11, 2009.

At a compliance review hearing on February 19, 2009, A.B. was again ordered to undergo psychological and substance abuse evaluations and treatment. The court also ordered services and visitation for both parents to continue. A.B. did not attend the hearing. According to the DYFS case manager, she received an intoxicated voicemail from A.B. on the day of the hearing in which "he stated that he was not going to attend the hearing and that no one can make him go." A.B. later confirmed that he had had six beers that day, and he did not remember leaving the message.

In a February 23, 2009 letter, the Division reminded A.B. that he had failed to comply with a number of his obligations. That same day, E.I.M.T. informed the Division that A.B. had threatened her again. Throughout this period, the Division continued its efforts to contact S.S. in Guatemala and complete a home study on E.I.M.T.'s mother in Honduras.

A DYFS worker visited E.I.M.T.'s home on March 18, 2009. At that time, she was sharing a room in a three-bedroom apartment with her boyfriend. E.I.M.T. told the worker that she was still afraid of A.B. due to the messages he left her.

On March 20, 2009, Cajiao sent the Division a letter regarding E.I.M.T. The letter stated that E.I.M.T. had attended ten sessions since her initial September 29, 2008 assessment, and Cajiao recommended that she continue weekly counseling sessions. Additionally, Cajiao suggested that E.I.M.T. and her children participate in an "in-home treatment program" to promote reintegration of the family.

Four days later, on March 24, 2009, E.I.M.T. underwent a psychiatric evaluation by Alvaro M. Gutierrez, M.D. Dr. Gutierrez observed her to be "somewhat anxious and depressed because of her situation." He recommended that E.I.M.T. be referred to psychotherapy and random drug screening tests and concluded that she was "not capable of taking care of her children at this time."

On March 25, 2009, Walter's foster parents reported that he was exhibiting some sexualized behaviors, including masturbating during a bath, trying to "climb on top of" Bruce, and rubbing his groin against toys and other objects. As a result, the Division referred him to Deirdre's House, a facility for child victims in Morristown, New Jersey.

In May 2009, an immigration judge granted E.I.M.T.'s motion to reopen her case and granted her request for a stay of removal. The judge found that E.I.M.T. had a good excuse for missing her February 2006 hearing due to her pregnancy, and that she was entitled "to pursue a claim for relief based on her being abused by her husband."

E.I.M.T. underwent a second forensic evaluation by Merida on May 12, 2009. Merida summarized her findings as follows:

[E.I.M.T.] presented as a depressed and anxious individual who continues to deny "abandoning" her child in August 2008. . . . Since the last evaluation [on August 22, 2008,] there are notable improvements in [E.I.M.T.'s] demeanor. She did not appear as fragile or as traumatized as the original evaluation suggests. [E.I.M.T.] appeared calm and able to address the concerns about herself and her children. While able to recognize the impact of domestic violence on herself and her children, she appeared able to plan and make better choices since August 2008. She demonstrated some improvement in judgment and insight. At this evaluation, she was able to discuss options for herself and her children, a plan should she be allowed to stay in the United States, and seemed [more] hopeful than in previous months. Her substantial decrease in clinical elevations on the testing materials suggest an overall improvement in her psychological functioning.

At this point, the concerns are centered on [E.I.M.T.'s] ability to stay in the United States. Given her current status with immigration, it is questionable when a resolution will occur. Also, [E.I.M.T.] resides in a rented room with her boyfriend, which cannot accommodate her two children, she [is] unemployed and unable to provide consistently for her children now. Assuming [E.I.M.T.] is allowed to stay in the United States, with intensive services in place, and continued psychiatric monitoring, consistent employment and safe housing[,] prognosis is good.

A letter dated May 12, 2009, was sent to the Division by Amanda Robles, a counselor at Jersey Battered Women's Services (JBWS). The letter indicated that E.I.M.T. had "regularly" attended sessions with a "Spanish Speaking Orientation Group" since March 19, 2009. According to Robles, E.I.M.T. "actively participate[d] in group discussion, [was] extremely supportive of other group members, and ha[d] significantly benefited by participating in the program." Another positive letter from Cajiao was written on May 19, 2009. Cajiao reported that E.I.M.T. continued to attend individual counseling sessions consistently, and she recommended that the counseling continue, along with services provided by JBWS.

The Family Part held a permanency hearing on June 18, 2009. In an order entered that day, the court approved the Division's plan of "Termination of Parental Rights followed by adoption." The court found this plan "appropriate and acceptable" based on the following facts: "Although the mother has been compliant with services, there are a number of life circumstances that prevent her from being able to adequately care for the children at this time. The father has not been compliant with services." The court also found that the Division had provided reasonable services to both parents, and the Division was ordered to file a complaint to terminate E.I.M.T. and A.B.'s parental rights by August 6, 2009.

On July 19, 2009, E.I.M.T. was admitted to St. Clare's Hospital (St. Clare's) with a deep laceration in her left forearm.*fn6 Her left wrist was wrapped in an Ace bandage that was "saturated with blood." The laceration was deep enough to damage both the ulnar artery and ulnar nerve, and E.I.M.T. told hospital staff "that her entire hand [was] numb" and she could not move her fingers. Surgery was required to repair the damage. A subsequent investigation revealed that, while intoxicated,*fn7 E.I.M.T. had attempted suicide by "cut[ting] her left forearm with a piece of glass."

The Division filed a guardianship complaint on July 29, 2009, against E.I.M.T., A.B., and S.S. The complaint asserted that all three parents had "failed to make a permanent plan for the children," "abandoned the children to the care of others," and "substantially failed to perform the regular and expected functions of care and support" for the minors. Therefore, the Division claimed that returning the children to the care of E.I.M.T., A.B., or S.S. "would expose [them] to an unacceptable level of harm or risk of harm."

E.I.M.T. was referred to Hope House for a second time on August 3, 2009, and two days later she signed an outpatient client agreement with Hope House that required her to attend one Alcoholics Anonymous meeting per week. On September 2, 2009, Hope House reported that E.I.M.T. had participated in all scheduled counseling sessions and tested negative for drugs and alcohol. A.B. also tested negative for alcohol on September 8, 2009, and a letter from Corner House dated September 9, 2009, stated that he had attended sessions regularly since his intake date of August 5, 2009. In addition, A.B. married a woman named A.M. on September 2, 2009.

On October 16, 2009, E.I.M.T. was discharged from Hope House for failing to maintain "satisfactory attendance." The discharge summary stated: "The client dropped out of treatment, and has not attended treatment in at least 30 days. She failed to adhere with her treatment and recovery." After another evaluation confirmed that her alcohol abuse had resumed, E.I.M.T. was again referred to the Hope House for outpatient treatment on November 9, 2009.

A.B., on the other hand, continued his treatment program at Corner House, and a November 17, 2009 letter reported that he had "sustain[ed] abstinence for one year and two months." The letter further stated that he had become "actively involved" in church and drew "major support" from his "religious faith." Moreover, it indicated that A.B. had made "significant improvements in his life," including marriage and a new job. He again tested negative for drugs and alcohol on November 17, 2009.

On November 27, 2009, E.I.M.T.'s aunt, M.C., informed the Division that she and her husband were no longer willing to adopt the children. M.C. cited financial reasons "for their change of heart."*fn8 Consequently, the Division sent them a rule-out letter.

On November 30, 2009, Frank J. Dyer, Ph.D., conducted psychological and bonding evaluations for both A.B. and A.M. A.B. told Dr. Dyer that he was "employed doing roofing repairs"*fn9 and identified himself as a Christian. According to A.B., he began drinking only after his children were removed, and he was currently attending "alcohol meetings" at his church in addition to weekly counseling sessions. A.B. also "denied any domestic violence" and indicated that E.I.M.T. "lies a great deal."

In his report, Dr. Dyer described A.B. as "an articulate and intelligent individual who is essentially functioning within the parameters of psychological normality except for the denial and minimization of his drug and alcohol problem and denial of any form of mistreatment of [E.I.M.T.] or any responsibility for his son's present situation." Dr. Dyer noted that "the history of [A.B.'s] violent, menacing and controlling behavior toward [E.I.M.T.] is cause for concern, especially in light of his posture of categorical denial of any wrongdoing." He also found it "unsettling" that A.B. viewed Walter "as a highly intelligent and problem-free child" in spite of the child's many developmental problems. Dr. Dyer concluded that A.B.'s parenting capacity was "marginal at best" and recommended that the Division not consider him "as a viable candidate for custody."

During her evaluation, A.M. reported that she possessed a ninth grade education and was employed as a staffing coordinator at an unemployment agency.*fn10 She also indicated that she and A.B. were members of the Pentecostal Church and that she did not use illicit drugs, drink alcohol, smoke tobacco, swear, or celebrate Halloween. A.M. told Dr. Dyer that she had one child, a six-year-old daughter named N.M., and had "no friction" with the child's father. When asked about Walter, A.M. "replied that the child is very smart" and that she was interested in adopting him if he were reunified with A.B.

Overall, Dr. Dyer described A.M. as "a passive, compliant, somewhat dependent individual," who responded to psychological tests "in an extremely defensive manner." Although he determined that she had "adequate parenting capacity" as a result of her success parenting N.M., Dr. Dyer predicted that "the significant power imbalance in her relationship with [A.B.] would [likely] result in situations in which [A.M.] was devalued, coerced, excessively restricted, and verbally or emotionally abused." Nevertheless, Dr. Dyer stated that if A.B. were granted custody of Walter, he "would have no reservations about [A.M.'s] degree of capability and commitment in serving as a coparent."

A bonding evaluation with Mr. and Mrs. S., the boys' foster parents, took place on December 7, 2009. Initially, Dr. Dyer noted that both children, but particularly Walter, suffered from developmental problems*fn11 and acted out after visits with E.I.M.T. and A.B. They referred to their foster parents as "Mommy" and "Daddy," and Mrs. S. stated that she tried to communicate with them in both English and Spanish. During the bonding evaluation, Dr. Dyer noted that Walter was "much more relaxed and enthusiastic with his foster parents" and that Bruce was "flourishing developmentally in his foster placement." Therefore, Dr. Dyer concluded that, if separated from their foster parents, both children "would suffer a traumatic loss" and endure serious and lasting harm. Furthermore, in a supplemental report dated January 11, 2010, Dr. Dyer stated that "both children would suffer a painful loss if one were to be placed with a birth parent and the other remained in foster care."

On December 14, 2009, Dr. Dyer conducted psychological and bonding evaluations on E.I.M.T. After providing an extensive personal history, E.I.M.T. told Dr. Dyer that she was in a court-ordered alcohol program and taking Zoloft, an antidepressant medication. She further stated that she was receiving treatment and counseling at St. Clare's and JBWS. When Dr. Dyer asked about the children, E.I.M.T. was "vague about the details of her plan" and "indicated that she did not know how she was going to become established."

Overall, Dr. Dyer described E.I.M.T. as "passive, submissive, and dependent, and therefore vulnerable to abuse by unstable partners." He further noted that she was vulnerable to "incapacitating depressive states" and "suicidal acting out" and had a problem with binge drinking, at the very least. According to Dr. Dyer, her psychological profile was "extremely negative with respect to parenting capacity":

[E.I.M.T.] is quite limited with respect to her capacity to adjust to the normal challenges of independent living in the community without being able to rely on a strong partner. . . . The subject is vulnerable to severe, incapacitating states of depression, one of which led to an episode of suicidal acting out that was a genuine attempt and more than simply a gesture.

It appears that [E.I.M.T.'s] chaotic and abusive childhood in her native Honduras prevented her from internalizing a positively valued maternal role model, making it extremely difficult for her to appreciate her role as a parent for her own children. The subject apparently responded to the problems affecting her children's welfare by excessive reliance on the defense of denial to filter out unpleasant or inconvenient aspects of reality, convincing herself that it was acceptable to leave her child in the care of an individual without visiting him often while she worked as a prostitute. This subject has so many emotional conflicts and limitations that it is really impossible for her to appreciate the task of parenting or to place the needs of her children above her own needs.

Based upon the above observations, it is my recommendation that DYFS not consider [E.I.M.T.] a viable candidate for the custody of [Walter] or [Bruce].

A January 6, 2010 letter from Hope House confirmed that E.I.M.T. had complied with her treatment since her November 11, 2009 referral. The letter stated that E.I.M.T. was participating productively in both individual and group sessions approximately five times per month. Corner House also sent the Division an update letter on January 25, 2010. The letter indicated that since August 5, 2009, A.B. had regularly attended all sessions and passed all drug and alcohol tests administered. According to the Corner House clinician: "Through the course of treatment, this clinician has observed the accountability that [A.B.] has shown for his actions and his determination for improving his life and the well-being of his family." Therefore, because A.B. had "achieved his treatment goals," he was discharged from his individual counseling on January 26, 2010.

In contrast, a January 27, 2010 letter from St. Clare's stated that E.I.M.T. had made "little therapeutic progress" and "continue[d] to demonstrate little insight regarding the Division's current involvement":

She denies abandoning her children, and has repeatedly stated that she compensated [M.M.] for caring for [Bruce] and visited him often. In recent sessions, she has reluctantly acknowledged that perhaps she should have obtained more information about [M.M.] prior to placing [Bruce] in her care, but has also stated that she "had no choice." [E.I.M.T.] views herself as a victim of the system and believes she was targeted by DYFS for her past involvement in prostitution. . . . At this time, she is unemployed and unable to provide consistently for her children.

The trial took place on nine days between February 8, 2010, and June 8, 2010. The court heard testimony from Maria Trindade, a DYFS caseworker; Graciella Reyes, an administrative assistant with the Division; Dr. Dyer; E.I.M.T.; A.B.; and A.M.

On July 29, 2010, the court rendered a comprehensive oral decision terminating the parental rights of E.I.M.T. and A.B. The court credited Dr. Dyer's testimony, and it found that both children were in "need of a safe, stable home environment and appropriate medical care and therapeutic care." The court made detailed findings and concluded that the Division had satisfied each of the four prongs of the best interests test, as set forth in N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence.

With regard to the first prong of the best interests of the child test, the court found that "[t]he failure of the defendants to live safe and competent lives clearly portends a future where the children['s] health and development are at risk if returned to their care." Specifically, the court determined that E.I.M.T.'s "history of neglect," "lack of insight," and failure to formulate a "workable parenting plan" rendered her "unable to maintain a safe and competent life" for the children. It further found that A.B.'s "significant history of violent domestic abuse," "severe lack of insight" regarding his substance abuse issues, and inability to meaningfully describe Walter's learning deficiencies established "a continued risk of harm." The court also found A.B.'s testimony denying domestic violence was contradicted by his "admissions during evaluations," and the court concluded that A.B. had "very little credibility."

With respect to the second statutory prong, the court determined that E.I.M.T. and A.B. were not capable of adequately parenting the children because neither parent had been able to eliminate the risk of harm to the children due to "substance abuse, domestic violence, immigration issues, unstable living situations, and sporadic employment." In addition, the court found that neither parent could provide the children with "a safe and stable home."

Additionally, the court determined that the Division had satisfied prong three by making reasonable efforts to help E.I.M.T. and A.B. correct the circumstances that led to removal, and by attempting to place the boys with relatives. The court also accepted the Division's explanation that A.B. could not be enrolled in individual therapy or parenting classes until he completed his substance abuse treatment, which occurred in January 2010.

Finally, regarding prong four, the court found it was clear that termination of parental rights would not do more harm than good because the boys shared a stronger bond with their foster parents than their biological parents. The court also found "that separating the children from the current foster placement would cause serious and enduring emotional harm." Moreover, according to Dr. Dyer, neither E.I.M.T. nor A.B. would be able to effectively mitigate this harm.

E.I.M.T. presents the following arguments on appeal:

POINT I

THE JUDGMENT OF GUARDIANSHIP TERMINATING PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE DIVISION'S COMPLAINT WAS BASED ON INSTITUTIONAL BIAS AGAINST "ILLEGAL" OR UNDOCUMENTED PARENTS.

POINT II

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE UNDER N.J.S.A. 30:4C-15.1A CRITERIA THERE DID NOT EXIST COMPELLING REASONS TO TERMINATE DEFENDANT'S PARENTAL RIGHTS.

A. THE DEFENDANT'S INADEQUACIES

AS A PARENT WERE THE CONSEQUENCES OF HER "ILLEGAL" STATUS AND HER POVERTY, AND DID NOT RESULT IN THE TYPE OF FIRST PRONG "HARM" OR SECOND PRONG "UNFITNESS" THAT JUSTIFIED TERMINATION OF HER PARENTAL RIGHTS.

B. THERE DID NOT EXIST CLEAR AND

CONVINCING EVIDENCE TO SUPPORT THE TRIAL COURT'S THIRD PRONG FINDINGS.

C. CLEAR AND CONVINCING EVIDENCE

DID NOT EXIST TO SUPPORT THE TRIAL COURT'S FINDINGS THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

A.B. argues as follows:

POINT I

THE STATE FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE THE FATHER'S PARENTAL RIGHTS IN ORDER TO PROTECT THE CHILD'S BEST INTERESTS.

A. THE STATE FAILED TO PRODUCE

EVIDENCE OF HARM TO THE CHILD AS A DIRECT RESULT OF THE PARENTAL RELATIONSHIP BETWEEN THE FATHER AND CHILD.

B. THE STATE FAILED TO SHOW BY

CLEAR AND CONVINCING EVIDENCE THAT THE FATHER IS UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR HIS CHILD.

C. DYFS FAILED TO PROVIDE

REASONABLE EFFORTS TO REUNIFY THE FATHER WITH HIS CHILD.

D. THE TRIAL COURT ERRED IN

CONCLUDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE TERMINATION OF THE FATHER'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

Based on our examination of the record, we conclude there is no evidence to support E.I.M.T.'s allegations of institutional bias, and defendants' remaining arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). We add only the following comments.

As our Supreme Court has noted, the "[r]review of a trial court's termination of parental rights is limited." N.J. Div. of Youth & Family Servs. v. M.M., supra, 189 N.J. at 278. "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Trial courts hear the case and see the witnesses, and they are in a better position to evaluate the credibility and weight to be afforded testimonial evidence.

Pascale v. Pascale, 113 N.J. 20, 33 (1988). Deference is not appropriate, however, if the trial court's findings are "so wide of the mark that the judge was clearly mistaken." G.L., supra, 191 N.J. at 605.

In this case, we have determined from our independent review of the record that the trial court's findings and conclusions are adequately supported by clear and convincing evidence. As the trial court indicated, the children are entitled to a safe, stable, and permanent home, which neither E.I.M.T. nor A.B. can provide. In addition, the court correctly concluded that the evidence was sufficient to satisfy each of the four statutory factors under N.J.S.A. 30:4C-15.1(a). We therefore affirm substantially for the reasons stated by Judge Michael Paul Wright in his oral decision on July 29, 2010.

Affirmed.


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