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New Jersey Division of Youth and Family Services v. Ro.H. and Ra.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 14, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
RO.H. AND RA.H.,*FN1 DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF P.R.H., T.G.H. AND A.R.H., MINORS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-58-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 24, 2012 -

Before Judges Messano, Yannotti and Espinosa.

Defendants Ro.H. ("Rose")*fn2 and Ra.H. ("Robert") appeal from the termination of their parental rights to their three children, P.R.H. ("Paul"), T.G.H. ("Tammy") and A.R.H. ("Alan"). We affirm.

I Termination of parental rights is warranted when the Division of Youth and Family Services (DYFS or the Division) establishes by clear and convincing evidence that:

(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 [D]ivision 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); N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010).]

In their appeals, Rose and Robert each argue that DYFS failed to establish these four prongs by clear and convincing evidence. We disagree.

A trial court's decision to terminate parental rights is subject to limited appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). If supported by "adequate, substantial, and credible evidence in the record[,]" the trial court's findings of fact are entitled to deference. Ibid.; see also Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding."). The family court's decision to terminate parental rights will not be disturbed "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

The trial court carefully considered the criteria established in N.J.S.A. 30:4C-15.1(a) and cited adequate, substantial evidence in the record in a detailed written opinion to support its conclusion that each of the prongs had been proven by clear and convincing evidence. We affirm substantially for the reasons articulated in the trial court's opinion and recite only the following salient facts.

II

The first prong requires proof that the "child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). During the course of the three years prior to the guardianship hearing, DYFS had numerous contacts with defendants. Although the evidence reflected several occasions of suspected physical abuse of the children, none of these instances were substantiated. However, the harm that must be shown under the first prong is a threat to the child's health and safety that is "likely [to] have continuing deleterious effects on the child." In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999). To obtain sufficient proof, it is not necessary to wait "until a child is actually irreparably impaired[.]" In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). The prong may be satisfied "by an accumulation of harms over time." New Jersey Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 506 (2004). "[T]he focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348.

DYFS initiated this guardianship action in October 2009, after responding to and investigating various referrals involving defendants dating back to January 2006.

The first referral to DYFS concerned neglect of two-year-old twins, Tammy and Alan, reporting that Rose left them home alone each morning for ten minutes while she took five-year-old Paul to the bus stop. In addition, it was reported that the parents were verbally abusive to the children and physically abused them by grabbing their arms and pushing them around. Robert acknowledged that the twins were left home alone. After Rose agreed that she would no longer leave the twins home unattended, and finding no corroborative evidence of physical abuse, DYFS determined the allegations of abuse and neglect were unfounded and closed the case.

The second referral reflected a failure to attend to the medical needs of defendants' children. In May 2007, the Roxbury Department of Health reported that three-year-old Alan had tested high for a level of lead. Despite several letters and telephone calls, defendants failed to have Alan's levels re-checked. Both defendants were unresponsive to this medical issue.

In her first interview with the DYFS caseworker, Rose said Alan had not been taken for a follow-up test because they had only recently obtained medical insurance and because Robert would not allow her to take the children to the doctor. Robert later called the caseworker, screamed and threatened him, accusing him of invading his privacy and refused to take Alan to have his lead level checked again. The caseworker followed up with a visit to the home, accompanied by two police officers. He stressed the serious risks associated with exposure to lead and advised that Alan could be tested at a free clinic. Robert claimed ignorance of the risks and apologized for his prior behavior, stating he was a disabled veteran, suffered from post- traumatic stress disorder (PTSD) and was an insulin-dependent diabetic.

Because defendants made arrangements for re-testing, DYFS concluded the allegation of neglect was unfounded but opened a case for monitoring and services. Both defendants signed the case plan requiring them to provide a safe and stable home and meet the children's medical needs. However, at an announced visit in July 2007, defendants still had failed to take Alan for an updated lead test. It was not until late September that Alan finally was re-tested, four months after DYFS first addressed this need with defendants.

The third referral concerned defendants' financial obstacles to providing a safe and stable home environment. In June 2007, the Morris County Office of Temporary Assistance (OTA) reported that the family had no propane fuel since February 2007 and that it was unknown whether they had an electric stove to prepare food. Defendants had initially contacted OTA in February 2007 to request assistance with overdue rent. However, Robert refused to provide the paperwork necessary to obtain the assistance and was described as irrational and argumentative by the OTA employee. The caseworker who met with defendants confirmed that, although the family lacked gas, they had electricity and a working electric stove to prepare meals.

The family's financial troubles continued, however. In July 2007, Robert asked a caseworker for assistance regarding $5,000 in unpaid rent, a $254 monthly electricity bill and maintaining adequate food. He stated that they were unsuccessful in getting assistance from OTA and that their food stamps had stopped when he returned to work. On July 30, 2007, Robert advised the caseworker that their electricity would be shut off for non-payment. DYFS paid the outstanding bill. Despite these difficulties, defendants failed to submit necessary documentation to obtain housing assistance from OTA as late as September 24, 2007, and owed $6,000 in back rent as of October 2007. On November 29, 2007, Robert's employment at Walmart was terminated because he was accused of theft.

The next referral to DYFS came in January 2008. An anonymous source reported that while at the Temporary Assistance for Needy Families (TANF) office, Robert raised his hand in the air, threatening to hit the children when he disapproved of their behavior. Although the referent did not see Robert strike the children, she heard a sound like a child being struck and saw Paul under a table with red cheeks, looking as though he was crying.

This referral of apparent corporal punishment echoed similar reports of Robert threatening to hit the children in public and statements by the children that he frequently struck them when angry and they feared him. As early as May 2007, Paul told a DYFS Family Service Specialist that he found his father "scary" and that his father had thrown him against a wall and onto the floor when he was in kindergarten. In June 2007, Paul repeated that he was afraid of his father because he yelled and hit the children with a belt and that his father also hit his mother. Although defendants denied physical abuse, Rose admitted they occasionally spanked the children. Following the January 2008 referral, Paul denied being hit recently but said his father yelled a lot and sometimes spanked him and the twins.

DYFS received another referral in February 2008. A school guidance counselor reported that Paul, who was then seven years old, told her he liked to drink rum and beer and that his father either gave him shots of rum or left it around the house. When interviewed by the DYFS caseworker, Paul denied that his father offered him alcohol but said he sneaked sips of beer and whiskey when his father was not looking. Robert denied giving Paul alcohol aside from small sips on special occasions but admitted that Paul sometimes stole alcohol from him.

In late March 2008, the family began an in-home crisis intervention and family education program with Family Preservation Services (FPS). Although inconsistent in response to inquiries about domestic violence, Rose confirmed the suspicions of various workers associated with the case, corroborating Paul's allegations of physical domestic violence. Specifically, Rose disclosed in April 2008 that Robert had choked her in front of the children on two separate occasions, in February and March, resulting in another referral to DYFS.

When a Special Protective Response Unit worker went to the home with a police officer to investigate these allegations, Robert ordered Rose not to say anything to the worker and told the worker to leave, without interviewing the children. Robert became overtly hostile to further DYFS involvement. Although he initially agreed to have Alan evaluated after DYFS referred the family for psychological evaluations in March, Robert withdrew his consent, refused to allow caseworkers to speak to Paul or any of the family members' therapists and even threatened to use force to remove caseworkers from his home.

On April 18, 2008, DYFS filed an order to show cause and complaint for care and supervision pursuant to Title 9, N.J.S.A. 9:6-8.21 to -8.106, and Title 30, N.J.S.A. 30:4C-12. The court placed the children in the immediate care and supervision of DYFS and ordered defendants to appear on May 1 to show cause why they should not be required to cooperate with the Division and comply with services arranged for them. An order dated May 1, 2008 reflected that defendants consented to proceed with the psychological evaluations on May 22, and ordered them to cooperate with the Division. Nonetheless, Robert later told DYFS he would not submit to a substance abuse evaluation because it had not been ordered by the court.

On June 2, 2008, DYFS received a referral from the Roxbury Police Department, stating that Robert was arrested for driving while intoxicated while Paul was in the car with him. Following his arrest, he spoke of a desire to kill himself and called a suicide hotline.

A DYFS caseworker went to defendants' residence in the company of a police officer to investigate the matter. Rose stated that Robert drank an excessive amount of alcohol at a family barbecue, that she tried to stop him from driving with Paul but did not believe she could stop him. Robert attempted to stop the interview and said he would not permit his children to be interviewed. However, with the help of the police officer, the caseworker was able to continue the interview. Rose stated that Robert frequently drank alcohol, that she suspected he had a problem and advised the caseworker of his threat to commit suicide. After the worker confirmed that Robert continued to have suicidal ideations, emergency psychiatric services were arranged for him. Robert entered St. Clare's Hospital for a ten-day detoxification program and then entered a thirty-one day residential treatment program at the Veteran's Administration Hospital, which he completed on July 10, 2008. However, he refused to sign a release to permit his treating physicians to disclose information to DYFS.

In the interview that followed Robert's arrest, Rose stated that she was afraid of her husband when he was upset and that he used a belt to discipline the children. Alan stated that Robert hit him with a belt on his stomach and head and that he was afraid when his father got angry that he would hit him again. The worker observed bruises on Alan's shoulder, face and lower back. DYFS transported Rose and the children to the Jersey Battered Women's Shelter (JBWS). Rose signed a DYFS safety protection plan, agreeing to remain in a protective shelter and to allow only supervised contact between the children and Robert. DYFS determined that the allegation of neglect by Robert for driving while intoxicated with Paul in the car was substantiated.

In June 2008, the Center for Evaluation and Counseling (CEC) provided DYFS with a written preliminary report of the psychological evaluations conducted of the family in May. The report concluded that Robert was "a high-risk parent for child physical abuse and intimidating the children due to his emotional difficulties, anger management difficulties, [and] abusive tendencies." Indeed, Robert admitted to a FPS outreach worker that if he started hitting the children, he was unable to stop.

Rose described her response to Robert's violent behavior toward the children:

I don't like that he hits with a belt. I don't agree with it. It causes fear and could possibly hurt them physically. . . . I know where his anger comes from, but I don't want him to abuse the kids and I know he has a hard time keeping it in check, but he is able to most of the time.

Yet, during the CEC evaluation, the children reported that Rose hit them as well. Tammy stated, "Daddy hit with the belt, but Mommy hit me on the butt, and my arm with her hand. Mommy whacked me and [Alan] cause I was wrong. When Mommy mad at me, it hurts. Mommy mad at me all the time."

Rose was described as having personality traits including passivity, submissiveness, dependency, and enabling of Robert's behavior. She minimized the severity of his behavior and appeared unable to protect herself or the children. In addition, she acknowledged using physical discipline on her children. This was a matter of concern to CEC because Rose had reported a childhood history of physical abuse and because the results from the Child Abuse Potential Inventory (CAPI) showed Rose also presented a risk for child abuse.

The CEC report also described the children's difficulties, that Paul was anxious, guarded and socially isolated, and the twins presented with speech delay and emotional and behavioral problems, and associated these problems with exposure to their father's aggressive behavior.

By order dated June 5, 2008, the court directed that the children continue under the care and supervision of the Division with Rose having temporary physical custody. The order also required Rose to remain at the JBWS and restrained Robert from having any contact with the children and Rose.

On June 19, 2008, DYFS received a referral from the JBWS children's program coordinator, who reported that Rose failed to adequately care for her children by failing to properly feed and bathe them. Rose admitted she used physical discipline on the children and that she was suffering from depression. Although it was later revealed in a clarifying letter that some of the information JBWS provided to DYFS was exaggerated, there was a continuing concern expressed as to Rose's parenting skills because she had difficulty controlling the children, reacting to their behavior by yelling at them and also had difficulty processing information. As the trial court observed, the report from JBWS "describe[d] a family in chaos where the children were certainly at risk[.]"

Following the June 19, 2008 referral, DYFS conducted an emergency removal of all three children from Rose's care pursuant to N.J.S.A. 9:6-8.29 and 9:6-8.30. When pre-placement physical examinations of the children were conducted, the DYFS worker observed that the children's socks were filthy; their shoes smelled like garbage; their toenails were long and their feet needed a thorough cleaning.

Consequently, the Division substantiated the allegation of neglect against Rose for placing her children at substantial risk of physical injury. The children were placed with their maternal grandparents in June 23, 2008 and have remained with them since then.

Robert completed the substance abuse program in July 2008. Violating the court order of June 5, 2008, Rose left the shelter and reunited with Robert. After making a temporary move to stay with Robert's parents in Virginia, defendants returned to New Jersey in August 2008 and resumed weekly supervised visits with the children.

Both defendants were unemployed. Robert advised a DYFS intake worker that he had been diagnosed with bi-polar disorder, PTSD, depression, diabetes and neuropathy, but refused to sign medical releases, or to utilize any services provided by DYFS because he had "trust issues" with DYFS. Rose had been diagnosed with obsessive compulsive disorder (OCD), but was no longer taking medication for that disorder. Defendants still expressed a desire to be reunited with their children. Approximately one month later, defendants reported that they were both seeing therapists and that Rose had started taking medication for her depression and OCD, but both defendants refused to sign medical releases.

In September 2008, the trial court found that defendants had abused or neglected the children, based upon Robert's arrest for driving while intoxicated while Paul was in the car.

Robert requested that his parents be considered as resource parents if the children required placement and, initially, his parents expressed a willingness to serve. DYFS initiated the interstate home study process to obtain approval of Robert's parents as a potential resource for the children. However, in August 2009, just two months after defendants moved to Virginia for a second time, Robert's parents advised the Virginia foster care unit that they did not want the children placed with them and wanted the foster care home study to be discontinued. Robert's father explained that Robert's behavior had become "erratic[,]" resulting in "outburst[s] of rage[;]" that defendants had overdrawn a bank account funded by Robert's parents and that the home they had provided for defendants was "a mess and the kitchen was filthy." He stated further that he and his wife were "wash[ing their] hands of all this[.]" Robert's father also told a DYFS caseworker that he and his wife did not want to accept placement of the children because they feared they would be unable to "protect" the children from defendants; that defendants had not made improvement and needed more help than they could provide.

After Robert's father confronted him about the overdrawn account, he left several threatening messages which led his parents to obtain a restraining order against defendants. Robert also attempted suicide.

During the period between September 2008 and the paternal grandparents' decision not to accept placement of the children in August 2009, DYFS continued its efforts toward permanency and reunification.

At a compliance review hearing on January 15, 2009, the court denied defendants' application for reunification without prejudice and ordered defendants to engage in individual therapy and maintain contact with DYFS.

In accordance with the recommendations of the Family Enrichment Program (FEP), DYFS referred defendants to parenting classes, referred the family members to individual therapy and provided them with transportation to classes and sessions. DYFS's efforts to refer defendants to parenting classes were impeded by the fact that one agency declined to enroll defendants because of Robert's behavior toward their staff on a prior occasion and because Robert refused to undergo a parenting risk assessment through a DYFS provider in February 2009. In addition, defendants' admission into FEP's Therapeutic Supervised Visitation Program (TSVP) was delayed until March 2009 because defendants did not attend scheduled intake sessions. In the interim, DYFS continued to provide supervised visitation to defendants and arranged for Rose to have daily unsupervised visits with the children at her parents' home, an arrangement which did not last more than a few days.

When TSVP visits began on March 11, 2009, FEP clinicians supervised the one-hour visits from behind one-way mirrors, and then worked with defendants on their parenting skills, including anger management and coordinated parenting. While most of the early 2009 visits proceeded without incident, Robert's outburst during a visit on March 18 led the TSVP evaluator to recommend that Robert attend an anger management class. DYFS followed up by asking Robert's psychologist at the Veteran's Administration Hospital to provide him with anger management and domestic violence counseling. As late as June 2009, a TSVP caseworker recommended that visitation remain supervised, Robert attend parenting and anger management classes and defendants continue to undergo individual therapy.

After missing a scheduled psychological evaluation on February 17, 2009, Rose underwent an updated psychological evaluation at FEP to assess her psychological functioning and parenting ability in March 2009. The evaluators noted Rose's "limited insight and judgment[,]" that she minimized the history of domestic violence, Robert's substance abuse, psychiatric history and the overall impact on her children. She had an increased awareness of the issues that concerned DYFS but was still unable to protect herself or her children from Robert and did not have a clear understanding of how to parent effectively. Despite Rose's participation in services and taking medication, her prognosis remained guarded. FEP recommended that she remain in therapy and participate in parenting classes.

Rose completed the FEP parenting classes, but during the period from April 2008 through June 2009, only attended six individual therapy sessions. In her final report, dated June 23, 2009, Rose's clinician identified the treatment goals for Rose as understanding the reasons for the removal of the children and any obstacles to reunification, improving her limit-setting skills with the children and maintaining stability on medication. Although Rose made "some progress" on those goals, she was "at a very early stage of therapy[,]" making it impossible to predict future progress. Continued individual therapy, marital and family therapy and psychiatric services for medication monitoring were recommended.

Robert's updated psychological evaluation in April 2009 reported that he "minimized the domestic violence towards his wife and physical abuse of his children." Although he engaged in psychotherapy treatment for five years, Robert continued to abuse alcohol for the first four years of that period and engaged in "extensive verbal disputes with his wife and children." He denied any responsibility for the children's removal. The evaluators concluded that Robert "displayed limited insight, poor impulse control and judgment in his extensive alcohol history." "[I]ndividual therapy to address his history of physical abuse and violence in the home, anger management problems, alcoholism, and parenting skills" was recommended.

Robert had been reluctant to attend FEP therapy but agreed to participate in FEP weekly individual therapy in April 2009. He attended five of six scheduled sessions before therapy was terminated, according to his therapist, "prior to any treatment goals being achieved[.]" She noted his "inability to be empathic[,]" his "demonstrated poor judgment" and lack of insight. She also stated

At this time, significant concern continues to exist because even though he has maintained his sobriety for over 10 months, he has yet to take responsibility for how his actions and violence have impacted the children, failed to acknowledge the domestic violence, and blames others for the children's removal, and is unable to present himself as an empathic father. These issues pose significant concern regarding unsupervised contact with his children.

These conclusions presaged defendants' ill-fated attempt to resolve their issues with DYFS by relocating to Virginia and having the children placed with Robert's parents. Robert's parents' responses to defendants' behavior, including obtaining a restraining order, abandoning the plan to accept the children and evicting defendants, as well as Robert's suicide attempt, all give credence to the concerns expressed by the mental health professionals who evaluated defendants in the spring of 2009.

Thus, throughout the year from September 2008 through August 2009, although defendants made some efforts and achieved some progress, their progress was insufficient to correct the issues that led to the removal of the children.

In August 2009, the maternal grandparents expressed their willingness to adopt the children. All three children stated they were excited to remain with their grandparents.

In September 2009, DYFS changed its permanent plan for the children from reunification to termination of parental rights followed by adoption. The court found the plan appropriate and acceptable, and directed that a guardianship complaint be filed within forty-five days. On October 29, 2009, DYFS filed an order to show cause and a guardianship complaint seeking termination of defendants' parental rights. An order terminating the Title 9 litigation was entered on the same day. By order dated December 23, 2009, defendants were ordered to attend psychological, psychiatric and bonding evaluations, as well as individual therapy and medication monitoring. In addition, Robert was ordered to attend parenting skills classes and anger management, and defendants were granted bi-weekly supervised visitation.

During the months until the guardianship trial, defendants resided in Virginia. DYFS attempted to set up services for defendants in Virginia and arrange for an interstate home study. However, as late as April 2010, defendants had not completed the necessary paperwork for completion of the interstate home study or provided FEP clinicians with signed releases to permit them to speak to their individual therapists. When a DYFS caseworker went to Virginia in late March to conduct a home visit, defendants did not have a copy of their parenting plan, were waiting for a referral for individual therapy and had not begun parenting or anger management classes.

In April 2010, DYFS also learned that the Valley Community Services Board (VCSB) in Virginia could provide defendants with individual therapy, anger management and psychiatric services but that defendants had to contact VCSB on their own to arrange the intake. Robert's intake appointment and first session were scheduled for June 11 and June 17, respectively, after the guardianship trial commenced. Rose scheduled an intake appointment for July but did not attend.

Alan's clinician and Paul's clinician both reported that each child wanted to remain with their maternal grandparents and suffered emotional distress from their contacts with their parents. The clinicians found it "essential" that the children be allowed to refuse to participate in telephone calls or visits. Defendants maintained contact with the children through supervised telephone calls and visits with varying degrees of success.

The guardianship case was tried in June, July and August 2010. Defendants presented expert testimony, but did not testify. On September 28, 2010, the court issued a written opinion and a judgment of guardianship terminating defendants' parental rights.

At the time of the guardianship trial, the children had lived with their maternal grandparents for almost two years. The children each had significant special needs. Although the grandparents had earlier reported being overwhelmed by the challenge of caring for them, they were now willing to adopt them. All three children expressed a desire to live with their grandparents and manifested significant strides regarding their behavior and educational progress.

Three psychologists testified as expert witnesses at trial. Frank Dyer, Ph.D. (Dyer), testified on behalf of DYFS. Alicia Caputo Smith, Ph.D. (Smith), testified on behalf of the law guardian for the children. James Reynolds, Ph.D. (Reynolds), testified on behalf of defendants. None of them recommended reunification with Robert in the immediate future.

All three psychologists conducted psychological evaluations of Robert and Rose. Both Dyer and Smith conducted bonding evaluations of the children with their maternal grandparents and with defendants. Reynolds conducted a bonding evaluation of the children with defendants but not with their grandparents.

Dyer testified that during his clinical interview, Robert described a childhood in which he was disciplined brutally by his father. On at least one occasion, his mother was complicit in the abuse, not allowing him to receive any medical treatment for the injuries inflicted by his father. Robert reported a history of bipolar disorder for which he received medication and that his condition was manifested by his becoming "manically angry." He admitted to alcoholism and stated that he has remained sober since completing an in-patient rehabilitation program although he does not participate in a twelve-step program. He acknowledged that his behavior as an active alcoholic influenced his interaction with DYFS personnel. However, he considered the removal of the children to be unjustified and minimized the severity of the circumstances that led to the removal and his own domestic violence against Rose. Robert also did not view his disciplinary practices as being particularly abusive and stressed that he was now a completely changed person.

Dyer stated his behavioral impression of Robert is that "he is an emotionally volatile individual with a very stern super ego or conscience who is struggling to maintain his own program of recovery and is really lacking in insights as to the impact of his behavior on his family." Dyer also conducted psychological testing of Robert, the results of which were consistent with his clinical impressions. He diagnosed Robert as suffering from Axis I bipolar disorder, PTSD, alcohol dependence in early remission, and Axis II personality disorder with borderline features.

Dyer's interview with Rose revealed that while her work history indicated she had functioned at a more intact level psychologically several years ago, she now had a muted emotional responsiveness and was mildly depressive. He detailed a schizoid presentation, which he described as "a constellation of . . . personality traits that includes apathy, emotional unresponsiveness, being somewhat peripheral and overall reflecting an inner blunting of emotional experience." The results of the psychological testing confirmed that she was passive, compliant, submissive, had low self-esteem and relied on OCD measures to cope with her anxiety. He diagnosed her as suffering from Axis I dysthymia (chronic depression) and OCD, and Axis II personality disorder with dependent and schizoid features.

In his bonding evaluation of the children with their maternal grandparents, Dyer found the grandparents displayed an affectionate attitude toward the children. His interview of the maternal grandmother led him to conclude that she has "more than adequate parenting capacity" and that the grandfather was also "involved with the children" and "a very nurturing and supportive figure for them." The children "appeared to be happy, secure with them and in all respects, the interaction was reflective of children who have come to view their caretakers as stable, reliable figures on whom they can rely for protection, support, nurturance, affection, and all of those good things."

Dyer interviewed each of the children separately. Paul, the oldest, was "quite definite" about his preference to stay permanently with his grandparents, whom he loves, and that he feels safe and secure with them. He recalled being afraid living with his parents, that he suffered abuse on multiple occasions, does not trust them and does not want to return to his parents. The twins, then six years old, had problems with articulation. However, Tammy's statements that she did not think much about her parents or going back to live with them led Dyer to conclude that "whatever positive tie she may have had to the parents has substantially eroded." Alan stated he liked everything about living with his grandparents and wanted to live with his grandparents, his brother and sister and with Ruby and Diamond, the cats. He described his parents as "horrible" and explained, "My father hit and smacked us," and that his parents hate bad behaviors.

In the bonding evaluation Dyer conducted between defendants and the children, defendants attempted to engage the children. However, early in the observation, Paul refused to respond, yelling, "I don't want to talk." Alan told his father, "I'm very mad because you guys don't understand that we don't want to live with you." The interaction went downhill from there. Dyer described Robert's responses toward Paul's hostility and emotional distress as "alarming[,]" leading Dyer to be "actually concerned that [Robert] was at the point of exploding into some sort of physical response[.]" Alan asked if he could leave and said, "I'm kind of scared now." Defendants failed to respond to his expression of fear. Paul moved away from his father and stated he did not want to be there or talk to his father. Rose told him he was being selfish and needed to realize that. Paul responded, "I don't want to see you or talk to you." Defendants continued to shout and speak sternly to Paul and blame him for his siblings' reactions. When Rose told him to discuss his feelings, Paul responded, "It just reminds me of all bad times." Paul made additional statements referencing the past physical abuse and that he had "a second chance of life" with his grandparents.

Ordinarily, Dyer testified, parents being observed attempt to present themselves in a positive light. Dyer found it "remarkable" that Robert was so extremely authoritarian and emotionally volatile in a controlled observation setting with a psychologist present taking notes on his behavior. Moreover, both Robert and Rose were not empathetic to Paul when he said he wanted to live with his maternal grandparents.

Dyer concluded that despite some positive progress in achieving personal stability, Robert would not be able to achieve "adequate parenting capacity within the foreseeable future" and remained a threat to the children's physical well being. Dyer was also concerned that Rose was unable to protect the children from Robert, because she was so passive, compliant, and invested in Robert's view of events, that she would "go along" with his authoritarian demands, rigid enforcement of orders and use of corporal punishment.

Dyer opined within a reasonable degree of psychological certainty that adoption by the maternal grandparents would be in the children's best interest, and removal of the children from their grandparents would cause them serious and enduring harm.

Smith concurred with Dyer's conclusions. Smith testified that during her bonding evaluation, the grandparents were very warm and appropriately supervised and interacted with the children. Smith found it was "indisputable" that the children, who had special needs, had flourished in their grandparents' care, and made significant gains in emotional, social and academic functioning. Moreover, the children each expressed a desire to remain with their grandparents.

Although she found Robert's behavior in the bonding evaluation to be appropriate, Smith found Rose's behavior problematic. She was more detached, attempted to vilify the grandparents by mentioning that they had hit her when she was a child, and attempted to pressure Tammy to state she missed her. When Tammy finally told Rose that she wanted to live with her grandparents, Rose responded that they "will never be Mommy and Daddy."

Smith found that Paul was clearly disturbed by the visit with his parents. He repeatedly said he wanted no contact with them and wanted to stay with his grandparents, who did not hit him with a belt and where he could lead a normal life. Paul, then ten years old, said that the two years he had spent with his grandparents were the best years of his life. Although Alan and Tammy, then seven years old, were warmer toward their parents, they too consistently said they wanted to remain with their maternal grandparents.

Smith found no evidence that a separation from their parents would be "at all traumatic" for the children, noting in particular that Paul has "a very disturbed attachment with his parents" and wants no contact with them. In contrast, she found that the children viewed their maternal grandparents as their psychological parents. She concluded that the children would suffer serious and enduring harm if separated from them, stating,

The maternal grandparents have provided the only safe, nurturing, stable home that these children have known. They are very connected with the grandparents and I think it would be very traumatic to separate them. Reynolds, defendants' expert, testified regarding his psychological evaluations of them and his bonding evaluation of the parents and children. He did not interview the children or conduct a bonding evaluation of them with their grandparents.

Reynolds concluded that Rose demonstrated "some mild to moderate mood impairment [with] no signs of any kind of chronic thought disorder or behavior disorder." He stated that her obsessive compulsive disorder, feelings of anxiety and depression appear to be "well controlled[.]" He found that Rose had adequate knowledge of child development issues and her children's maturational needs. He stated the circumstances that resulted in the children's removal appear to have been remediated. He concluded that "with ongoing assistance and therapy[,]" Rose "would be appropriate for being reunified with her children." He acknowledged, however, that professional intervention and a "considerable period of time" was required before there could be reunification with Paul. Although the twins showed more affection to Rose in the bonding evaluation, Alan resisted being directed by Robert, saying, "I don't have to do what you tell me," and "You're not my father right now."

Reynolds concluded that Paul would not suffer severe or enduring harm if his relationship with his parents was terminated. However, he was unable to render an opinion as to whether the twins would be harmed either by a separation from their parents, or a separation from Paul, if they were reunified with their parents and he was not. Moreover, he found that any reunification between the parents and children would take an "extended period of time" and "some very intensive work[.]"

We are satisfied that the evidence clearly and convincingly shows that both Robert and Rose endangered the safety, health and development of their children. Specifically, there was ample evidence that Robert engaged in violent behavior directed at his children and Rose, resulting in their fear of him. In addition, Robert drove while intoxicated with Paul in the car with him. Rose's admissions and the children's statements support the conclusion that she also struck the children. The evidence also clearly and convincingly showed that Rose's depression and passivity was sufficiently disabling to render her unable to protect the children from Robert, and led her to neglect the children's needs and strike the children herself. Both parents failed to timely respond to the recommendation to have the children tested for levels of lead. The children manifested symptoms showing their health, safety and development had been endangered by Robert and Rose.

III

Elements of the second and third prongs are intertwined, i.e., the proof required by the second prong that Robert and Rose are unwilling or unable to eliminate the harm facing their children, N.J.S.A. 30:4C-15.1(a)(2), and the proof required by the third prong that DYFS made reasonable efforts to provide them with services to help them correct the circumstances leading to the children's placement. N.J.S.A. 30:4C-15.1(a)(3).

Under the second statutory prong "[n]o more and no less is required of [the parents] than that they will not place their children in substantial jeopardy to physical or mental health." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). In other words, "[t]he Division must demonstrate that the parent is 'unable to eliminate the harm facing the child or is unable . . . to provide a safe and stable home for the child,' . . . before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001) (quoting N.J.S.A. 30:4C-15.1(a)(2)), certif. denied, 171 N.J. 44 (2002).

The third prong of the "best interests" standard contemplates DYFS's efforts to reunify the parent and the child by assisting the parent in addressing the problems that led to placement. K.H.O., supra, 161 N.J. at 354. Such efforts include:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation. [N.J.S.A. 30:4C-15.1(c).]

However, DYFS's efforts should be measured not by their success but against the standards of adequacy in light of the family's needs in a particular case. D.M.H., supra, 161 N.J. at 393.

In this case, the family's core needs were to address both parents' mental health issues, Robert's substance abuse, domestic violence, and parenting deficiencies that included an inability to control the children and resorting to inappropriate discipline of them. The record provides ample support for the conclusion that DYFS attempted to provide appropriate services to defendants and that, either through an unwillingness to comply or an inability to benefit from the services provided, defendants failed to make sufficient progress to eliminate the harms facing their children.

As even their own expert witness testified, additional therapy was required before Rose would be "appropriate for being reunited" with the children, a great deal of work would be required before there could be reunification with Paul, and the prognosis regarding reunification with Robert was even more guarded. Moreover, as the trial court observed in discussing the second prong, the children had been in placement for over two years at the conclusion of the guardianship trial and were in need of permanency.

IV

Finally, the fourth prong addresses whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The focus of this prong is whether the child will suffer a greater harm from the termination of ties with the natural parents than from the permanent disruption of the child's relationship with the foster parents. K.H.O., supra, 161 N.J. at 354-55.

The evidence of the children's preference for remaining with their maternal grandparents was compelling. Indeed, Paul and Alan openly expressed that sentiment to defendants and manifested a desire to reject any parental relationship with defendants. The evidence that the children would not suffer from a termination of parental rights and would continue to prosper in their grandparents' care was highly persuasive. As a result, we are satisfied that there was ample evidence to support the conclusion that clear and convincing evidence was presented to satisfy all four prongs of N.J.S.A. 30:4C-15.1(a).

V

In addition, Robert argues that, because there was no stipulation or judicial determination of abuse or neglect as to Rose, DYFS lacked the authority to seek termination of her parental rights. This argument lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following brief comments.

"Abuse-or-neglect and termination proceedings are brought under separate statutory schemes, require different burdens of proof, and allow for different remedies." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 555 (1994). More to the point here, "termination proceedings, which are brought pursuant to N.J.S.A. 30:4C-15, do not require a prior determination of abuse or neglect." Id. at 556; see also New Jersey Div. of Youth and Family Servs. v. R.D., 207 N.J. 88, 111-112 (2011); New Jersey Div. of Youth and Family Services v. A.P., 408 N.J. Super. 252, 259-60 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010).

Affirmed.


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