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New Jersey Division of Youth and Family Services v. J.H. and P.P

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 5, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
J.H. AND P.P., DEFENDANT-APPELLANT. IN THE MATTER OF A.P., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-0078-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 24, 2012

Before Judges Fisher, Baxter and Nugent.

In these consolidated appeals, defendants J.H. and P.P. appeal from a July 23, 2010 Family Part permanency order that approved the plan of the Division of Youth and Family Services (Division or DYFS) to file a guardianship complaint against both defendants, rather than reunify them with their son A.P., born in the fall of 2008. As to the mother, J.H., we agree with the judge's determination that in the two years following the emergency removal of A.P. from J.H.'s custody, J.H. failed to take the steps necessary to achieve reunification. In particular, J.H. failed to establish housing independent of P.P., a known sex offender with an extensive criminal record; and she failed to bond with A.P. or develop any significant mother-child relationship despite the intensive parenting classes DYFS provided.

As to P.P., the judge observed that P.P. had recently been convicted of second-degree sexual assault on a minor, and had been sentenced to a six-year term of imprisonment with a three-year period of parole ineligibility. We agree with the judge's determination that by virtue of P.P.'s prolonged absence from his son's life, and P.P.'s inability to avoid committing further sexual assaults upon children, P.P. should not be reunified with A.P. For that reason, the Division's plan to seek guardianship and terminate P.P.'s parental rights was appropriate.

We affirm both orders.

I.

In addition to A.P., the child who is the subject of the present appeal, J.H. is the mother of three older children. We provide some history of the Division's earlier involvement with those three children, as it sets the stage for the Division's ultimate removal of A.P. Those three children -- a daughter, A.H., born in the beginning of 2001; a son born in the early spring of 2004; and another son born in the spring of 2006 --were born to J.H. while she was married to W.H., whom she divorced in September 2007. When J.H. and W.H. initially separated, J.H. began living with defendant P.P. Shortly thereafter, W.H. learned from a friend that P.P. was a registered sex offender. When W.H. so informed J.H., she refused to believe him and refused to take steps to ensure that her three children were never in P.P.'s presence.

On December 6, 2007, W.H. called DYFS to report that his and J.H.'s six year-old daughter A.H. awakened in the middle of the night screaming "My thing is going to hurt." She woke up a second time that night screaming hysterically, "Leave me alone, don't touch me." W.H. immediately reported A.H.'s outburst to DYFS, and requested that the agency take steps to prevent J.H. from allowing P.P. to have access to any of the three children.

When a DYFS caseworker confronted J.H. with the facts of A.H.'s outburst, J.H. insisted that P.P. could not have molested A.H., as she, J.H., was always present when P.P. was with her three children. J.H. also asserted that A.H. was "lying" at the behest of her father, J.H.'s ex-husband, so that he could exact further concessions from J.H., such as increasing her child support obligation for the three children or restricting her parenting time.

When the caseworker asked J.H. whether she was aware of P.P.'s criminal background, J.H. answered in the affirmative, acknowledging that P.P. had been convicted of endangering the welfare of a child after admitting to engaging in sexual intercourse with thirteen and fifteen year-old girls. J.H. asserted there was nothing wrong with P.P.'s conduct, as both girls had consented. When the caseworker persisted in explaining to J.H. the seriousness of P.P.'s past conduct, and the risk he posed to J.H.'s three children, J.H. ended the conversation with a statement that if anything had happened to A.H., P.P. was not the perpetrator.

Alarmed by J.H.'s lack of insight into the risk P.P.'s prior history of sex offenses posed to J.H.'s children, the Division filed a verified complaint for care and supervision of J.H.'s three children. Although the complaint did not allege that J.H. had abused or neglected any of her three children, the Division asserted that her failure to "tak[e] the allegations of sexual abuse seriously" placed her children "at risk" because she had allowed "a registered sex offender to be unsupervised with her children." DYFS sought an order granting the agency care and supervision of the children.*fn1

At a hearing on September 18, 2008, DYFS presented the testimony of caseworker Linda Zapelli, who described P.P.'s "extensive" criminal history. Zapelli explained that P.P., a registered Megan's Law sex offender, had been convicted in 1996 of endangering the welfare of a child; in 2003 of second-degree sexual assault on a child; and in 2007 of another second-degree sexual assault after admitting to sexual intercourse with an underage female.*fn2 He was also convicted in 2007 of violating the requirements of community supervision for life.

Zapelli's testimony also included a discussion of the parental fitness evaluation conducted by Norman D. Schaffer, Ph.D., to evaluate whether J.H. posed a risk to her three children. According to Zapelli, Dr. Schaffer recommended that J.H. be prohibited from unsupervised visitation with her three children because J.H.'s refusal to believe that P.P. posed any risk to her three children endangered their well-being.

Zapelli also testified that a few days earlier, J.H. had given birth to A.P., the child who is the subject of this appeal. Zapelli explained that DYFS had conducted an emergency Dodd*fn3 removal of A.P. in light of the presence of P.P. -- a convicted sex offender -- in the home. She also testified that DYFS had amended its Title 9 complaint to add P.P. as a defendant and A.P. as an at-risk child.

At the conclusion of the September 18, 2008 Dodd hearing, the judge approved the emergency removal of A.P. from the home of J.H. and P.P., finding that A.P. "would be at risk if placed with his mother [J.H.] based upon the mother's inability to supervise . . . [P.P.'s] contact with the child." The judge further concluded that J.H. and P.P. were in need of services to remediate the circumstances that created an "unfitness" to care for A.P. The judge observed that with appropriate services provided by DYFS, and close supervision of J.H. and P.P., she hoped reunification would be possible. The judge's September 18, 2008 order granted custody of A.P. to the Division pursuant to N.J.S.A. 30:4C-12, and required DYFS to provide services to J.H. and P.P., with the ultimate goal of reunification.*fn4

Between March 2009 and July 2010, the Division provided services to J.H. and P.P., which included: a bonding and parental fitness evaluation performed by Dr. Janet Cahill, Ph.D., who recommended that A.P. not be returned to P.P.'s custody and opined that J.H. was not an appropriate supervisor; parental counseling with Dr. Fred Gross, which J.H. completed; counseling for P.P. with Dr. Crawford; and parenting skills classes, visitation, and counseling provided by Revitalizing Environments through Nurturing Unity (RENU).

On July 6, 2010, the judge conducted a compliance review hearing. After reading the court report, which was prepared by DYFS and provided to the parties and to the judge prior to the hearing, the judge remarked that P.P. had been arrested on criminal charges involving the possession of child pornography, and was out on bail. The judge observed that P.P.'s re-arrest on charges involving the sexual exploitation of minors "changes the tools that we have [available to us] at this point toward reunification[.]" DYFS explained that one of the bail restrictions imposed on P.P. required him to avoid all contact "with minor children, period." In light of the bail restriction, and the serious nature of the new charges, DYFS asked the judge to suspend P.P.'s visitation with A.P.

Turning to J.H., DYFS asserted that although J.H. had been receiving intensive parenting skills training from RENU for a considerable period of time, "[s]he has not made much progress as far as bonding with [A.P.]," and for that reason RENU "was not recommending reunification[.]" In support of that contention, Division presented the testimony of DYFS caseworker Angela Gardner, who explained to the judge that RENU had "close[d] their case" because J.H. "has failed to effectively bond with [the child] and because of [P.P.'s] current status with being a sex offender, that . . . creates [a] risk for the [RENU] worker because [RENU was] doing the visits in the home."

At the conclusion of Gardner's testimony, the judge observed that based upon the court reports and testimony presented at prior hearings, she had considerable "concern" about J.H.'s lack of "bonding with [A.P.]." The judge remarked that P.P. had actually established a strong bond with A.P., but in light of the bail restriction that prohibited P.P. from having any contact with A.P., J.H. would be "on her own with visits with [A.P.]."

The judge identified an additional problem facing J.H., namely, her need to find a place to live. After identifying those two problems impeding J.H.'s reunification with A.P. -- J.H.'s failure to establish an emotional bond with A.P. and her failure to find housing -- the judge scheduled a permanency hearing on July 23, 2010, approximately two weeks later. The judge explained that at the July 23 hearing she would determine whether to approve the Division's plan to terminate efforts at reunification, and proceed with guardianship.

At the permanency hearing on July 23, 2010, the judge considered numerous reports, which were received in evidence without objection: the most recent DYFS court reports, the progress reports from RENU, counseling reports prepared by Dr. Gross concerning his sessions with J.H., Dr. Schaffer's evaluations of the parties, Dr. Jennifer Kelly's evaluation of P.P., and Dr. Cahill's evaluations of both J.H. and P.P.*fn5 Neither J.H. nor P.P. sought to offer any testimonial evidence.

Through counsel, P.P. explained that even though he was still residing with J.H., he was willing to vacate the home during the times that J.H. was visiting with A.P. P.P. also stated that moving from the residence he shared with J.H. was a cumbersome process, because it required the approval of his parole officer. Upon learning that J.H. and P.P. were still residing together, the judge stated "I don't have a lot of tools right now."

For her part, J.H. urged the judge to deny DYFS's plan to terminate her parental rights, asserting that she was "currently seeking independent housing," which "could be next week, [or] . . . next month." She also argued that none of the RENU reports had identified any risk of harm that she posed to her child. Conceding that prior reports from RENU had indicated "an issue with bonding," J.H. requested an adjournment to obtain an independent bonding evaluation before the court approved the plan to move toward termination of her parental rights. The judge did not expressly rule on that request.

Instead, at the end of the July 23, 2010 permanency hearing, the judge stated:

I find, given the length of time this child has been in placement and the fact that [J.H.] has not identified new housing yet and . . . the Division's case [is] pretty persuasive, . . . approving the permanency plan [for termination of parental rights is appropriate].

The judge emphasized that her approval of DYFS's plan to seek termination of the parties' parental rights did not mean that she was approving such termination. The judge explained:

[I]t simply means I found the Division has the right to present its case, that there's enough information to sort of move our inquiry in that direction. The Division bears the burden of proof. . . . So, that's the level of proof, the quantum of proof and the nature of my findings today. . . . I'm not actually finding that . . . termination should occur, not at all. I'm just finding that the litigation may proceed.

J.H. thereafter moved for reconsideration of the July 23, 2010 order.*fn6 In support of her motion, J.H. presented an expert report from Kenneth Goldberg, Ph.D., who observed that J.H. "has been gainfully employed for many years," and "is serious about her relationships and serious in her desire to be a mother and settle down." Dr. Goldberg described J.H. as a "reasonably functional person, who is basically capable of parenting her children," and he reported that "[t]he bonding evaluation shows a normal parent-child relationship between [J.H.] and [A.P.]." Dr. Goldberg recommended that "the court not move the case to a termination of parental rights matter," and urged the judge to "return [A.P.] to his mother's care."

On November 15, 2010, the judge conducted a hearing on J.H.'s motion for reconsideration. After finding, as she had during the compliance review hearing on July 6, 2010, that A.P. had been in placement for two years, the judge addressed the requirements of the Adoption and Safe Families Act (ASFA), 42 U.S.C.A. § 670 to 679. The judge noted that when a child has been in an out-of-home placement for fifteen of the preceding twenty-two months, ASFA requires the court to make a definitive decision -- either return the child to the parent, or compel the filing of a guardianship complaint -- because allowing the child to remain in limbo can add to the harm facing the child.

The judge denied J.H.'s motion for reconsideration, concluding that in the two years that had elapsed after A.P. was removed from her custody, J.H. had failed to establish a bond with him and failed to identify any place where she and A.P. could live. The judge reasoned:

In this case[,] the child was placed with non-relatives. So, the reason to be vigilant about heading in one direction or the other is pretty clear.

As [the proceedings] were in that second year it was clear that [J.H. and P.P.] were going to try to raise [A.P.] together and that, although there were various risk[] assessments and concerns with [P.P.], . . . we were working on reunification . . . until [P.P.] was arrested again and charged with the very kinds of offenses . . . within the scope of th[e] risk. . . [Now, P.P.] will be [incarcerated and] unavailable to parent his child for three years[.]*fn7

The circumstances [have] changed where the only person we could really look at to reunify with this child was [J.H.] . . .

[B]ut, . . . two years ha[ve] passed . . . [and it is] unclear whether [J.H.] would be able to support [A.P.] in her home or whether she would even be able to keep that home, which was rented in [P.P.'s] name, and I know that he's assisting her now, but I don't frankly know, [and] I didn't know [on July 23, 2010], . . . how long [P.P.] w[ill] be able to do that once he's incarcerated.

I am not going to grant [J.H.'s] motion.

[B]ut I also want to make clear [that] I recognize the Division has a very serious burden of proof . . . and that [J.H.'s] circumstances have changed drastically frankly now that . . . she's not dealing with the kind of shadow of the risk that [P.P.] may or may not have created because he's going to be in . . . prison for three years, and that's a big change.

In reaching that determination, the judge addressed Dr. Goldberg's "plan," which, in the judge's words, "outlines three different possibilities for [J.H.'s] stability in terms of a residence . . . , all of which have some conditions attached to them." The judge concluded that those "plans" were best addressed during the guardianship proceedings, but were too tenuous to justify any further delay. As the judge observed, "Not enough of a reason after now two years and several months to dismiss the Division's complaint." At the conclusion of the hearing on J.H.'s motion for reconsideration, the judge ordered the Division to file its guardianship complaint within ten days.

On appeal, J.H. argues that that the court committed reversible error when it approved the Division's plan to seek termination of her parental rights, because: 1) "the court engaged in no fact finding, no witnesses testified and the Division submitted no evidence"; 2) the Division offered no proof that it made reasonable efforts to reunite A.P. with J.H.; and 3) "alternatives to termination [of J.H.'s parental rights] were never considered."

For his part, P.P. argues that the permanency order should be vacated because: 1) his "status" as a Megan's Law offender "did not confer upon the Division a basis to file a protective services complaint" against him; and 2) DYFS did not prove him "unable to provide the appropriate level of care to A.P."

II.

Our review of the trial judge's findings of fact is narrow. So long as the judge's findings are supported by "adequate, substantial and credible evidence," we are obliged to accept them. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation and internal quotation marks omitted).

A court is required to conduct a permanency hearing for a child who is an out-of-home placement no later than twelve months after the child was removed. N.J.S.A. 9:6-8.54b(2). Children placed outside their homes by the Division or other agencies have the right to a permanent plan "designed to facilitate the permanent placement or return home of the child in a timely manner[.]" N.J.S.A. 9:6B-4j.

The court must evaluate the information provided by DYFS to determine whether the child can be returned home, and, if so, the services the Division must provide to accomplish that goal. N.J.S.A. 9:6-8.54b(2); N.J.S.A. 30:4C-61.2c(3). If family reunification "is not possible," the Division shall "file a petition for the termination of parental rights for the purpose of adoption[.]" N.J.S.A. 30:4C-61.2c(5)(b). When a court reviews the permanency plan proposed by the Division, "the 'best interests' of the child is the polestar[.]" State ex rel. L.L., 265 N.J. Super. 68, 77 (App. Div. 1993).

We turn to J.H.'s first argument, in which she asserts that the permanency plan approved by the court on July 23, 2010 was fatally flawed due to an absence of factfinding, the lack of any witness testimony, and the failure of the Division to present evidence. As we have noted, during the July 23, 2010 hearing on the Division's permanency plan, the court admitted in evidence the expert reports of numerous professionals who had evaluated J.H., as well as the court reports that had detailed her progress over time. When offered the opportunity for authentication of those reports, J.H.'s attorney demurred.

The judge also considered the fact that RENU had declined to provide any further services to J.H. because, despite the passage of twenty-two months since A.P. was removed, and despite the ongoing supervised visitation and intensive parenting training RENU provided, J.H. had failed to establish a mother-child bond with him.

Unquestionably, the judge's findings of fact were more detailed during the November 2010 hearing on J.H.'s motion for reconsideration than they were during the July 23, 2010 permanency hearing. But when the judge's findings at those two proceedings are read in tandem, we are satisfied that the judge's findings of fact adequately explain her reasons for approving DYFS's plan to proceed to guardianship: J.H.'s failure to establish a bond with her son and failure to find housing for herself and A.P.

In sum, we conclude, contrary to J.H.'s arguments, that the judge based her findings on numerous expert reports, and although no testimony was presented at the July 23, 2010 hearing, DYFS presented the testimony of DYFS caseworker Angela Gardner at the July 6, 2010 hearing two weeks earlier, when termination was discussed by the judge on the record. Viewed as a whole, the judge's approval of the Division's plan to proceed to guardianship satisfied the standards established by N.J.S.A. 30:4C-61.2 and L.L., supra, 265 N.J. Super. at 77. We reject the claims J.H. advances in Point I.

III.

In Point II, J.H. asserts that the judge should not have accepted the Division's permanency plan because the agency failed to make reasonable efforts to reunite her with A.P. To the contrary, the Division provided J.H. with the benefit of a psychological evaluation, individual therapy, supervised visitation, and the intensive parenting training provided by RENU. The lack of success of those services is not determinative of the adequacy of the Division's efforts. In re Guardianship of DMH, 161 N.J. 365, 393 (1999). "These efforts must be assessed against the standard of adequacy in light of all the circumstances of a given case." Ibid.

Moreover, J.H. has not identified the additional services that were required and that might have changed the outcome of the permanency hearing. We note that J.H. does not suffer from any psychological problems that required in-depth counseling, nor does she suffer from substance abuse. The principal obstacle preventing reunification was J.H.'s failure to establish a mother-child bond. To address that problem, DYFS provided the services we have described. We reject J.H.'s claim that the services DYFS provided were insufficient and should have caused the judge to reject the permanency plan urged by the Division.

IV.

In Point III, J.H. asserts that DYFS did not meet its burden of exploring alternatives to termination of parental rights. To the contrary, until July 23, 2010, the permanency plan approved by the court was the eventual reunification of J.H. and A.P. It was only when P.P. had been arrested, and J.H. faced the prospect of parenting A.P. without the assistance of P.P., that the Division changed the plan from reunification to termination. By that point, A.P. had been in foster care for twenty-two months. "A child is not a chattel in which a parent has an untempered property right." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 110 (App. Div.), certif. denied, 180 N.J. 456 (2004). Children must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement. Id. at 111. "A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." Ibid.

The judge correctly determined that after two years, J.H. had not established a sufficient relationship with her son to make reunification a viable alternative. In A-2101-10, we affirm the order authorizing DYFS to proceed with termination of J.H.'s parental rights.

V.

As for the arguments advanced by P.P., we conclude his contentions lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(A) and (E). The record demonstrates, contrary to P.P.'s arguments on appeal, that it was not solely his status as a Megan's Law offender that caused the judge to approve the permanency plan for termination of his parental rights. Instead, it was the prospect of his lengthy incarceration, in conjunction with the numerous expert reports describing the danger he presented to A.P., that caused the judge to approve the permanency plan the Division proposed. The judge did not approve the permanency plan based solely on P.P.'s status as a convicted sex offender, although that certainly played some role in the decision. Ultimately, P.P. will have been absent from his son's life for a minimum of three years before he is released from prison. Under such circumstances, the proposed termination of his parental rights was in A.P.'s best interest, considering the strong likelihood -- in light of P.P.'s constant recidivism -- that P.P. will be arrested and convicted again.

As for P.P.'s contention that DYFS did not prove he was unable to provide the appropriate level of care for his son, his absence from his son's life while incarcerated amply proved that point. We affirm the July 23, 2010 permanency order as to P.P. (A-3271-10).

Affirmed on both appeals.*fn8


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