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New Jersey Division of Youth and Family Services v. A.S. and T.O


February 14, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-62-09.

Per curiam.



Submitted October 31, 2011

Before Judges A. A. Rodriguez, Sabatino and Ashrafi.

These are consolidated appeals by A.S., the mother, and T.O., the father, of four children. They challenge the termination of their parental rights. Only three of the children are the subject of this appeal. They are: Z.O. (a boy born in June 2002), V.S. (a girl born in June 2003), and T.O., Jr. (Junior), who was born in September 2006. Initially, the Division of Youth and Family Services (DYFS) sought to terminate both parents' rights to a fourth child (X.S.). However, both parents consented to a kinship legal guardianship (KLG) placement for X.S. with his maternal grandmother. Therefore, the parental rights of the mother and father were not terminated as to this boy. A.S. only appeals from the May 25, 2010 judgment terminating her parental rights to her daughter V.S. On the other hand, T.O. appeals from the same judgment terminating his parental rights to the three children. We affirm.

A.S. and T.O. are not married. The incident that precipitated the involvement of DYFS occurred on December 27, 2006. DYFS received a referral regarding A.S., who was then living at Linkages, a shelter. It was reported that T.O. broke into her room and began beating her in front of the children. He threatened the life of A.S. and raped her in the children's presence at night and again in the morning. The same day, T.O. was arrested. A.S. obtained a temporary restraining order against T.O. immediately after the incident, and subsequently, a final restraining order. Since the incident, the parents have had no contact with each other.

T.O. eventually pleaded guilty to third-degree aggravated assault and was sentenced to a three-year term. He was released in June 2009. He has had no visits with the children since his arrest.

Six months after the incident, DYFS received a referral from Dottie's House, a woman's shelter, where A.S. and her children had been living. The shelter was concerned about the mental health of A.S. DYFS investigated. A.S. signed a case plan agreeing to adhere to the recommendations of DYFS.

On July 11, 2007, DYFS received another referral alleging neglect by A.S. because she was homeless and wandering the streets of Asbury Park with her children. It was alleged that A.S. was not properly holding, feeding, or bathing her children.

DYFS worker Gina DeLorenzo spoke with Carmen Gonzales from the Monmouth County's Board of Social Services (Board), who expressed concern for A.S. and her children. Susan Rea of the Board also communicated with DYFS. She stated that A.S. had previously threatened to commit suicide and had reportedly given her young children adult Nyquil. Moreover, A.S. could pose a threat to herself and others in a shelter due to her history of apparent acceptance of domestic violence. Rea advised DYFS to provide alternate care for the children and evaluate A.S. for developmental and/or psychiatric conditions. Based on these complaints, DYFS decided that a Dodd*fn1 removal of the children was necessary. DYFS placed Z.O and Junior in a resource home placement. V.S. initially was placed with her brothers, but was moved to a different home where she remains today. The resource parents of V.S. want to adopt her. Subsequently, DYFS filed a complaint for guardianship for the four children.

Prior to trial, Robert J. Puglia, Ph.D., a psychologist, conducted an evaluation of A.S. He found A.S. to have mild mental retardation, domestic violence victim syndrome, compulsive personality patterns, and features of a paranoid-delusional disorder and schizoid-histrionic personality traits. Dr. Puglia recommended a psychiatric evaluation, parenting skill classes, domestic violence therapy, and referral to the Division of Developmental Disabilities (DDD). He was concerned about the parenting capabilities of A.S. due to her "inherent limited abilities as well as her maladaptive behavioral patterns and suspected underlying emotional disabilities."

DeLorenzo testified that on the day of the referral, she went to an Asbury Park apartment where A.S. resided. A.S. appeared to have a flat affect, and did not show much interest in trying to help herself or her children. A.S. stated she had been staying for a period of time with a friend in Asbury Park. She also stayed sporadically with her mother in Neptune.

DeLorenzo next went to the home of the mother of A.S. The maternal grandmother expressed her desire to take all the children into her home, but her apartment was inadequate.

On the same date, DeLorenzo took all four children to their pediatrician's office. The pediatrician stated they were all behind on their shots. Junior had a diaper rash and an extra digit on his hand that was supposed to be removed. A.S. never followed up with an orthopedic doctor to schedule the procedure.

DYFS caseworker Jacqueline Jones testified that she arranged parenting classes and domestic violence counseling.

A.S. also began attending the Gateway Partial Care Program. Jones visited T.O. in prison to obtain information about his relatives who could serve as possible placement options. T.O. suggested his mother, who was too ill, and his brother, who was disqualified.

Jones also testified that Z.O. told her that he observed T.O. hit A.S., causing her to fall to the floor. V.S. also stated that she observed T.O. choking A.S. When Jones asked if they wanted to see T.O., both V.S. and Z.O. said no; and V.S. began crying.

Another DYFS caseworker, Rachel Quiles, testified that a year after their removal, Z.O. and Junior were both still fearful of T.O. and did not want to see him. After T.O. was released from prison, he did not contact DYFS to provide his contact information, nor attempt to modify the restraining order so he could contact his children.

Alexander Iofin, M.D., testified that he evaluated A.S. and submitted a report. Dr. Iofin's principal diagnosis was mild mental retardation. After administering various tests, he concluded that A.S. was a victim of physical and sexual abuse, and suffered from affective disorder, relational problems, provisional post-traumatic stress disorder, psychotic disorder not otherwise specified, and personality disorder not otherwise specified with schizoid, dependent, paranoid, avoidant, and self defeating personality features.

Dr. Iofin opined that at the time of evaluation and in the near future, A.S. was not "suitable to provide [proper] parenting due to the chronic nature of her cognitive limitations and absence of any treatment modalities in the armamentarium of psychiatry that can be utilized in order to improve, alleviate or help her with her quite significant cognitive limitations."

T.O. submitted to an evaluation by Todd Traina, Psy.D., a psychologist. Dr. Traina testified that T.O. was of average intelligence, displayed drug-dependent features, and suffered from anti-social personality disorder. Anti-social personality disorder is characterized by the need for immediate gratification, an outright disregard for the law, and a general disregard for other's needs. Dr. Traina recognized that T.O.'s "impulsive need for immediate gratification" prevents him from putting his children's needs ahead of his own.

Karen D. Wells, Psy.D., a licensed psychologist, testified about her evaluation of A.S. She diagnosed A.S. with bipolar disorder, mild mental retardation, and dependent personality disorder. The score of A.S. on the Wechsler Adult Intelligence scale showed that she is in the lowest percentile of the adult population. Dr. Wells opined that A.S. is "cognitively deficient, has strong dependency needs, and given these particular areas of concern, is likely to require assistance in effectively managing and attending to her own life needs and concerns." Moreover, there is no indication that A.S. can independently care for her children. Dr. Wells noted that:

Intellectual and cognitive measures strongly highlight deficits in her judgment, reasoning capacities in everyday situations, awareness of social norms and processes, as well as an inability to recognize and understand that her behaviors are not always appropriate. [A.S.] would require advice and assistance with day-to-day parenting, with concerns that she would not be likely to appropriately assess a situation and determine how to respond . . . . Overall, she is limited in the dominant areas needed for effective parenting, with her ability to comprehend and process information, respond quickly to situations that require an emotional response, and effectively verbally communicate her thoughts and feelings, using appropriate and necessary timeframes.

[S]uch information suggests that the children would be at risk if place[d] in [A.S.'] care.

According to Dr. Wells, the intellectual deficits of A.S. are innate and permanent.

Dr. Wells also testified regarding the bonding evaluation that she conducted of A.S. with her four children. The report of Dr. Wells reflected the children's serious issues. X.S. displayed symptoms of post traumatic stress disorder, attention deficit hyperactivity disorder, disruptive behavior disorder, and expressive language disorder. X.S. was placed in a disabled program to receive therapy. The doctor also recommended occupational therapy.

Junior suffered from communication issues. He was in special education classes and undergoing therapies that addressed expressive language skills, attention span, and play skills.

V.S. experienced uncontrollable crying spells and was diagnosed with rumination syndrome, an emotional disorder that causes regurgitation of food. During a supervised visitation, V.S. stated to a YMCA supervisor that T.O. tried to kill her mom and her uncle tried to cut A.S.' head off. V.S. was seeing a psychologist to better manage her emotions. Dr. Wells opined that the children would be at risk of harm in the care of A.S.

At the time of trial, X.S. resided with the mother of A.S. Z.O. and Junior were in the same foster homes since the July 2007 removal. V.S. was also in foster placement.

Dr. Wells performed a bonding evaluation of Z.O. and his foster mother. She concluded that Z.O.'s foster mother is his psychological parent. He called her "mommy" and acted in a manner that confirmed the relationship. If Z.O. were removed from his foster parent, Z.O. would suffer enduring and irreparable harm.

Dr. Wells evaluated the bonding between V.S. and her foster parents. Although V.S. did not call the care takers Mom or Dad, she did relate and bond to them in that parental role. The foster mother was clearly a maternal figure to her. However, Dr. Wells recognized that V.S. was more expressive and animated with A.S. and the maternal grandmother than with her foster parents. Dr. Wells testified that at the time of her evaluation, she could not state that V.S. would suffer irreparable and enduring psychological harm if removed from the foster parents.

Alan J. Lee, Psy.D., a psychologist, testified about the bonding evaluation of V.S. with her foster parents, and a separate evaluation of V.S. and A.S. The foster father indicated that V.S. often calls him "uncle," and the foster mother reported that V.S. calls her "mommy." The foster parents of V.S. stated to Dr. Lee that she asks about A.S. infrequently and never talks about T.O. During a private conversation with Dr. Lee, V.S. stated that she calls her foster parents Mom and Dad. V.S. stated that she "feels sad being away from A.S., but she would be more sad being away from her foster parents."

Dr. Lee opined that V.S. formed a "significant and positive psychological bond" with both the foster mother and father. He also testified that there "was not clear or compelling evidence of that same positive bond with A.S." He concluded that V.S. would suffer "severe, enduring and irreparable psychological harm if her relationship with these current care takers was permanently ended."

A.S. testified that she had not been in contact with T.O. since obtaining a restraining order. A.S. not only completed requested services of DYFS, but also enrolled in the Gateway Partial Care Program. A.S. testified that she is satisfied with her decision to surrender her parental rights to Z.O. and Junior; however, she wished that V.S. would return to her care.

Dawn Bobb-Romanick, a counselor at the Gateway Partial Care Program, testified on behalf of A.S. According to this counselor, A.S. voluntarily enrolled in the program's services, had resolved her depression a year before the trial, and was currently managing her care to prevent relapse. The counselor relied on A.S.' participation in parenting skills classes, and her personal observations of A.S. with her youngest child.

T.O. testified that although he was prepared to provide for his children, he was unable to presently do so. T.O. had plans to attend plumbing and culinary schools. He was living with his father in a one-bedroom apartment and did not have proper accommodations for the children.

T.O. acknowledged in his testimony that he was arrested various times for criminal trespass, resisting arrest, and possession and distribution of CDS. He has spent a total of five years in prison. He was arrested on a bench warrant for failing to pay child support. T.O. has five other children with mothers other than A.S. T.O.'s parental rights as to one of his other children have been terminated.

After all testimony was presented, Judge Flynn terminated the parental rights of A.S. to V.S., and T.O.'s parental rights to V.S., Junior, and Z.O. The judge also granted the maternal grandmother kinship legal guardianship of X.S., who had been thriving under her care since the removal. Due to the restraining order against T.O., Judge Flynn did not award T.O. any visitation rights with X.S. A.S. and T.O. appeal the guardianship judgment.

The parents contend that there was no clear and convincing credible evidence to support the court's findings. We disagree.

To terminate parental rights, the court must find clear and convincing evidence of the following factors:

(1) The child's health and development have 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

(3) [DYFS] 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; see also N.J. Div. of Youth & Fam. Serv. v. A.W., 103 N.J. 591, 604-05 (1986).]

The applicable standard of appellate review requires that we defer to a trial judge's factual findings when they are based on credible evidence in the record and unless we are convinced those findings are "so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

Here, both appellants challenge the judge's findings. However, the substantial testimony and exhibits including the unrebutted testimony of DYFS' experts are overwhelmingly against the arguments of A.S. and T.O. on appeal.

After careful review of the proofs, we conclude that the record contains clear and convincing evidence to support Judge Flynn's findings. We also conclude that the judge applied the correct legal standards to the facts. We discern no sound reason for disturbing the judge's findings and affirm substantially for the reasons set forth in Judge Flynn's comprehensive and insightful November 18, 2010 oral decision.

Summarizing, the appeals by A.S. and T.O. with respect to X.S. are dismissed without prejudice because they are moot in light of the KLG order entered on the same day as the judgment. The judgment of guardianship with respect to Junior, Z.O. and V.S. is affirmed.

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