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New Jersey Division of Youth and Family Services v. D.M

March 2, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-0162-09.

Per curiam.



Submitted February 1, 2012

Before Judges Cuff, Waugh and St. John.

Defendant D.M. (Don)*fn1 appeals from a April 5, 2011 order terminating his parental rights to his two biological children, now ages five and three.*fn2 Don argues the judge erred by terminating his rights because the New Jersey Division of Youth and Family Services (DYFS) failed to establish by clear and convincing evidence each prong of the best interests of the child standard, N.J.S.A. 30:4C-15.1(a). We disagree and affirm.

On appeal, the record discloses the following facts and procedural history.

On March 12, 2008, DYFS received a referral from the Bayonne Police Department, stating detectives had executed a search warrant at Don and Tonya's residence and, while arresting them for certain drug offenses, police discovered one-year-old Danny, who was unsupervised at the scene. Don and Tonya were each charged with second-degree possession of a controlled dangerous substance with intent to distribute, and second-degree endangering the welfare of a child. Bayonne police arranged for Danny's maternal aunt to supervise him after both Don and Tonya were arrested.

Upon interviewing Danny's aunt, the DYFS caseworker was informed that she had a prior criminal history, previous involvement with DYFS, past history of substance abuse, and mental health issues. DYFS ruled out Danny's aunt as a potential caregiver. DYFS executed a "Dodd removal"*fn3 on March 13, 2008, and removed Danny from his aunt's home. DYFS filed a verified complaint for custody of Danny on March 17, 2008, and, on that same day, the court issued an order to show cause granting DYFS temporary custody.

On March 21, 2008, while still incarcerated on the criminal charges, Tonya gave birth to Tommy. Three days later, Danny was placed with a resource family. Shortly thereafter, DYFS amended the verified complaint to include Tommy, and the court granted DYFS legal custody of Tommy. On April 7, 2008, Tommy was placed with a separate resource family. Both children have remained with their respective resource families since their initial placement in 2008.

DYFS was unsuccessful in finding suitable placement for the children with relatives while Don and Tonya remained incarcerated. The court ordered supervised visits for Don and Tonya with their children at the jail.

On November 21, 2008, Don pled guilty to second-degree possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1), and second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a. On January 23, 2009, he was sentenced to an aggregate custodial sentence of five years imprisonment with one year of parole ineligibility. Tonya also pled guilty to drug possession and child endangerment charges and was sentenced to three years probation. Tonya was ordered to enroll in a substance abuse program.

On February 5, 2009, the court issued an order approving DYFS's permanency plan of termination of Don and Tonya's parental rights followed by foster parent adoption of the children. On March 18, 2009, DYFS filed a verified complaint for guardianship of the minors. On March 20, 2009, the court issued an order to show cause why Don and Tonya's parental rights should not be terminated.

Dr. Frank Dyer, a psychologist chosen by DYFS, conducted an in-person psychological assessment of Don on June 29, 2009, prior to his release from the Jones Farms Correctional Facility. A bonding assessment between Don and his children was also conducted that day. Don admitted to a twenty-year history of crystal methamphetamine use. He was arrested four years prior to his 2008 arrest for possession of that drug and was granted pre-trial intervention. Dr. Dyer found that Don's "psychological profile is predominately negative with respect to parenting capacity." Dr. Dyer also found that Don's plan to work two jobs and send his children to daycare upon his release from prison was not feasible for providing adequate care for them. After bonding evaluations between Don and the children, as well as evaluations between the foster parents and the children, Dr. Dyer recommended the children remain with the foster parents based on their attachment to them.

While in prison, Don completed a parenting skills class, a substance abuse program, and a forklift safety program. Weekly visits were scheduled so that Don could see his children. He was released from prison on September 15, 2009, and paroled to a half-way house in Newark. On January 15, 2010, Don moved into the Sanford Bates House, a boarding house which provides a transitional housing program.

Dr. Dyer completed his evaluation of Don on April 26, 2010. He also determined that the children's attachment to their foster families was growing stronger, and that they exhibited anxious behavior following visits with their biological parents. He opined that Don does not appear to have "any type of viable support system to assist him in child care tasks." Dr. Dyer also noted that Don "is egregiously lacking insight with respect to the impact of his drug-related behavior on his older son, and on his unborn son at the time of his arrest." Ultimately, Dr. Dyer's report indicated he did not recommend that DYFS consider Don as a viable candidate for custody of Danny and Tommy.

On January 22, 2010, a family relative informed DYFS that Don had created and possessed child pornography. The referral to DYFS involved an allegation that Don created computer-generated pornographic images, some of which appeared to be teens engaged in sexual acts, with the faces of his adolescent, female cousins superimposed on the bodies. These images also included explicit captions written in Tagalog (the indigenous language of the Philippines), describing the acts via commentary or crude summaries. DYFS conducted an investigation and confirmed that the victims, now adults, were Don's cousins. They believed that Don created the images ten to fifteen years earlier. During the course of the investigation, his cousins alleged that Don used to steal their underwear, and that he created a videotape of his cousins in which he can be seen masturbating. Based on these allegations and the new information, on July 9, 2010, DYFS again referred Don to Dr. Dyer for further evaluation.

When questioned about the photographs and the other allegations, Don explained that during the time the images and video were created, he was under the influence of drugs. Dr. Dyer concluded that Don has a sexual interest in pre-pubescent girls, but that he does not pose a threat to his own male children, and there have never been any allegations of inappropriate touching during his visits with them. However, Dr. Dyer found that Don represents a danger to pre-pubescent females.

Don was also evaluated on December 3, 2010, by Dr. Brett Biller, a psychologist for DYFS. Dr. Biller diagnosed Don with methamphetamine abuse, early full remission, and pedophilia limited to incest. Don was also diagnosed as having a personality disorder not otherwise specified, with narcissistic and antisocial features. Dr. Biller noted that Don tried to present himself as forthcoming and responsible. However, he did not reveal his full criminal history, the pornographic images, or the impact of his actions on others, until he was specifically questioned about them. Dr. Biller recommended that Don be referred to sex offender treatment and that he not be reunited with his children.

Don sought the opinion of his own psychologist, Dr. James Reynolds, who conducted a psychological evaluation of Don, as well as bonding evaluations between Don and his children and between the children and their respective foster parents. A January 6, 2011 report encapsulated four evaluations over the course of 2010. Dr. Reynolds found that Don "developed safe and secure attachment relationships with each of his sons, and [his] overall parenting skills and abilities are adequate." He noted, however, Don's "lack of understanding of the children's developmental needs, which is a deficiency that may be remedied through education interventions." Dr. Reynolds opined that while Don is an "appropriate candidate for eventual reunification with his children[,] . . . [he] is not able to provide his sons with the requisite stability they require in terms of their housing needs . . . [and he] is still in the process of stabilizing his own life." With regard to Don's personal characteristics, Dr. Reynolds found that there are "no indicators that [he] is impaired by either mental illness or substance abuse . . . [and] also does not present with characteristics that are commonly associated with persons who commit sexual offenses." The evaluation concluded by stating "unification with his sons, should it occur, will require an extended process of increased visits . . . [and if reunification does not occur, then Don's] parental rights should be terminated and the children be made free for adoption." Finally, Dr. Reynolds noted that "[i]n either event, the boys will likely experience severe and enduring harm as a result of having their safe and secure parental [foster] relationship[s] terminated, and appropriate intervention services for the boys will be required."

On December 19, 2010, Don tested negative for substance abuse at the New Brunswick Counseling Center, and the caseworker declined to recommend ...

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