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New Jersey Division of Youth and Family Services v. O.C.

Superior Court of New Jersey, Appellate Division

June 28, 2013

O.C. and M.M., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF S.C., a minor.


Submitted May 13, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-26-12.

Joseph E. Krakora, Public Defender, attorney for appellant O.C. (Eric R. Foley, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant M.M. (Walter A. Norris, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lauren F. Carlton, Assistant Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Karen A. Lodeserto, Designated Counsel, of counsel and on the brief).

Before Judges Graves, Ashrafi and Guadagno.


Defendants O.C. (the father) and M.M. (the mother) appeal from the judgment of the Chancery Division, Family Part, terminating their parental rights to their daughter, who is now ten years old and who has consistently expressed a desire to remain with her resource parents rather than to be reunited with defendants. Addressing defendants' appeals together, we affirm the judgment.

Defendants' daughter was born in November 2002. They also have two sons together, both older than the girl who is the subject of this case. The mother also has an older daughter, now an adult. Beginning in 2004, DYFS received referrals about the mother's inadequate care of the children and her inability to address their behavioral and emotional problems. The older half-sister was subsequently removed from the mother's custody and placed in a foster home. The father, who speaks limited English, has been steadily employed in manual labor jobs, but he has not taken an active role in the care and nurturing of the children. For significant periods of time during DYFS's involvement with the family, he lived separately and did not provide financial support for the mother and the children.

In 2007 and 2008, DYFS received frequent referrals about the family. The mother was chronically homeless, despite receiving Supplemental Security Income of $1, 300 per month and having other opportunities for assistance. She could not account for what happened to her money, and she did not cooperate with the county welfare board in obtaining additional financial assistance. On more than one occasion, she and the children were directed to leave homeless shelters because she did not adequately care for the children and violated the rules of the shelters. The children were often seen disheveled and unsupervised. The two boys, who were diagnosed with psychological conditions, misbehaved badly and could not be controlled by her. All three children were subjected to physical or verbal abuse by the mother.

During one summer, DYFS provided funds for daycare camp for the children, and camp personnel reported that the children would appear in the same clothes day after day and the mother would not drop them off or pick them up on time. In addition, the boys displayed serious behavioral problems, and the girl engaged in sexual touching of herself. School personnel also reported to DYFS that the children were not adequately cared for and appeared to be moving from shelter to shelter.

In July 2008, DYFS obtained a court order to take temporary custody of the three children after learning that defendants and the three children had been staying without permission in one room rented by the father in a boarding house, and that the father had recently evicted the mother and children from that location. After DYFS took custody, the girl was placed in a separate foster home from her two brothers. Subsequently, in June 2009, she was moved to a different foster home, where the resource parents also cared for her older half-sister and two other female foster children. She has remained in that foster home and has thrived there.

The court granted supervised visitation to defendants, and DYFS arranged for evaluations, counseling, and parenting skills classes. They took only sporadic advantage of the services offered, for example, missing many scheduled visitation dates and only attending some of the evaluation or therapeutic sessions.

Over time, defendants' efforts improved, and they made some progress toward establishing a more stable home. The two brothers expressed a desire to be reunited with defendants, and the court authorized their return to defendants' custody in September 2010. But the younger girl found a more loving and nurturing home with her resource parents. She repeatedly told her therapist and twice personally told the trial judges responsible for this case that she wanted to stay with her resource family and be adopted.

At a guardianship trial pertaining only to the girl, several expert witnesses and DYFS caseworkers testified, as well as both defendants and other witnesses familiar with the children. Judge Mary Gibbons Whipple filed a comprehensive written decision on March 30, 2012. The judge carefully reviewed the evidence and stated her findings of fact and her conclusions of law in accordance with the applicable statute, N.J.S.A. 30:4C-15.1(a). Judge Whipple concluded by the clear and convincing standard of proof that the best interests of the child support termination of defendants' parental rights so that she can be adopted by her resource parents.

We affirm the Family Part's judgment for the reasons stated in Judge Whipple's thorough opinion. Substantial credible evidence justifies the judge's findings of fact and conclusions of law. We add the following comments to highlight the law that guides our review on appeal and the most salient points of the judge's decision.

As an appellate court, we do not weigh the evidence as if we must make an initial decision. We defer to the trial court's findings of fact and the conclusions of law that are based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.Super. 418, 433 (App. Div. 2009). We accord deference to the trial judge because she had the opportunity to "make first-hand credibility judgments" and to gain a "feel of the case" over time, thus supporting a level of factual familiarity that cannot be duplicated by an appellate court reviewing a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).

In E.P., the Supreme Court said: "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." Ibid.; accord In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605). Here, the family court's conclusions were not wide of the mark but well-supported by the evidence DYFS presented.

Defendants contend that the judgment should be reversed because the evidence did not satisfy the four criteria required by N.J.S.A. 30:4C-15.1(a). Under the statute, parental rights may be terminated when:

(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 for 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) [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.

DYFS bears the burden of proving the statutory criteria by clear and convincing evidence. G.L., supra, 191 N.J. at 606. The Family Part's inquiry is extremely fact-sensitive. M.M., supra, 189 N.J. at 280. The four subsections of the statute are "not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

Defendants argue that the children were removed from their care in 2008 because they did not have the financial ability to provide an adequate home. They contend that, since then, they obtained more stable employment and an adequate apartment to house their family. They contend that the Family Part's finding of their unfitness as parents is inconsistent with the finding that they are fit to have custody of their two sons and that they have cared for the two boys appropriately since their return in September 2010.

We agree with Judge Whipple that the harm to the children must be evaluated individually, and that risk of harm to the girl was not simply a matter of an insufficiently-sized home. In addition, we find no error in the judge's conclusion that defendants' face a formidable challenge in providing adequate care and nurture for the two older boys, and that their efforts in that regard will diminish their ability to care adequately for the youngest child, who is the subject of this appeal.

In her decision, the judge summarized the circumstances of the family that resulted in the children's removal from the defendants' custody in 2008:

On January 23, 2007, [DYFS] received a Forensic Team Evaluation from Saint Clare's Hospital Center for the Protection of Children (CPC) regarding forensic evaluations of [the girl] as well as her two brothers, conducted during July and August 2006. The evaluation team report noted that [the father] had not participated in the evaluation. In summary, the evaluators concluded that [the mother] was a dependent woman who seemed to care about all of her children. The evaluators wrote that [the mother's] family of origin had been dysfunctional and the [the mother] demonstrated limited insight about her own history and its impact on her current behaviors. It was also noted that [the mother] could not manage her children's disruptive behaviors and was clearly struggling to care for the children in her custody, both emotionally and financially.
The evaluation team also noted that [the mother] expressed that her marriage was unstable. The team observed that all of [the mother's] children presented with severe behavioral problems as well as significant academic and social difficulties. Specifically, the evaluators wrote that "[e]valuation of [the mother] revealed that she lacked the skills and abilities needed to manage her children's behaviors in a safe and effective manner. Yet, she did not believe that parenting support would be helpful, nor did she feel that her children were impacted by unsatisfactory marriage."
The evaluators noted that [the mother] had not conveyed an accurate perception of the severity of her children's developmental and behavioral problems and recommended, in part, that [DYFS] continue to monitor the children, as [the mother's] lack of parenting skills placed them at risk of abuse and neglect.

The January 2007 evaluation proved to be an accurate assessment over the next year and a half before DYFS took custody of the children. The father's lack of support for the family and the mother's inability to maintain a stable residence, even in homeless shelters, were not the only factors that resulted in removal of the children from their custody. As important was the mother's inability to supervise and control the young children, and to direct them toward healthy behaviors and activities. Incidents were documented at the shelters demonstrating that the girl was at risk of physical harm both from excessive discipline imposed by the mother and from neglect in potentially risky situations.

Also, the mother and father had become involved in incidents of domestic violence that were witnessed by the child. Their inclination toward violence culminated in the March 2009 arrest and incarceration of the mother after defendants became involved in a physical altercation. At that time, the father obtained a restraining order against the mother, which he later had vacated, but she remained in jail for about one month. The parents even fought with each other during supervised visitations with the child. When psychological evaluations were prepared for the guardianship trial, the child displayed symptoms of anxiety over her parents' fighting.

Additionally, as described, the children were often disheveled, and the lack of supervision resulted in a lack of adequate hygiene. School and camp personnel reported that the children suffered from inattention by the parents.

In sum, it was not merely the absence of an adequate residence that prompted DYFS's intervention, but also the inability or unwillingness of defendants to supervise and care for the children and to place the children's needs ahead of their own unhealthy inclinations.

After DYFS provided parenting skills and other services to defendants, which they attended only sporadically, new forensic evaluations were conducted in September 2009. As reported by the trial judge:

The forensic evaluation team summarized that [the mother] presented as an immature, impulsive, manipulative adult who tended to be narcissistic and histrionic, and who was not viewed as a reliable historian during the assessment. The team opined that because of [the mother's] poor attendance to services provided by the Division and her lack of motivation to change, she had not made any progress in addressing her neglectful parenting style. The team observed that [the mother] accepted no responsibility for her children's placement or for their behavioral problems, and preferred to place blame on others.
The team also indicated [the mother's] volatile relationship with [the father], including her history of infidelity with him and violent behavior toward him, was a concern. The team observed that [the mother] had difficulty controlling her volatile and erratic emotions, including anger, and evidenced a history of antisocial behavior. The team opined that [the mother] was unlikely to have sufficient self-control to act appropriately in the presence of the children. The evaluation team also noted that [the mother] could be devoid of conscience and was willing to risk harm and abdicate responsibilities to achieve immediate gratification. The team also noted that her judgment and insight were poor.
The forensic evaluation team . . . observed that [the father] accepted no responsibility for his family's homelessness and their history of lifestyle instability. He reportedly denied that this history was problematic. Because of his poor attendance and his lack of motivation to change, the team concluded that [the father] did not present as genuinely motivated to parent the children and had not benefitted from services.
The team reported that [the father] presented as an immature, impulsive adult who was orientated toward seeking stimulation and gratification at the expense of responsibilities. According to the team, [the father] was unable to verbalize anything that he had learned in parenting classes and he was unable to recognize the role that neglect and family chaos had played in the development of the children's difficulties. Moreover, the team noted that [the father] denied the allegation that his substance use was a problem and he reported that he frequently consumed six beers in one night. The team observed that [the father] exhibited low frustration tolerance, anger management difficulties, narcissistic tendencies, and a tendency to be manipulative.
The CEC Forensic Evaluation Team concluded that [defendants] were unstable parents who presented a risk of child neglect. The team observed that [defendants'] children had been in out-of-home placement for over one year because of issues of homelessness, child neglect, and parental substance abuse. As a result, the children had reportedly exhibited under-socialized and sexualized behaviors consistent with neglectful parenting.

The mother's manipulative behavior as referenced in the forensic evaluation was corroborated by the child's reporting to her therapist that, during supervised visits, the mother instructed her not to say positive things about her foster home or to love her resource parents. She told the child that the two of them would soon be reunited, which made the child nervous and anxious. In March 2010, after the child had been with her current resource family for about nine months, the therapist reported that the child:

Continued to present as a high functioning, resilient child. She appeared to be doing well academically, socially, and behaviorally at school and within her resource home. Furthermore . . . the child appeared to have worked through her ambivalent feelings regarding her placement and she consistently reported [to the therapist] that she wanted to be adopted by her resource parents.

The therapist repeated in subsequent reports and in his testimony at the guardianship trial that the child often told him she wanted to be adopted by her resource parents and suffered anxiety at the prospect of reunification with her biological parents. When Judge Whipple and another judge who was earlier assigned to the matter interviewed the girl, the eight-year-old child told both judges that she liked her foster home and wanted to live there. She did not want to be reunited with either biological parent.

Bonding evaluations conducted by Frank J. Dyer, Ph.D., in July 2010, recommended that the child continue in the home of her resource parents with a goal of adoption by them. Dr. Dyer noted that the child "was flourishing developmentally and emotionally in her current placement." He concluded that the child would experience a loss whether separated from her resource parents or, alternatively, if her biological parents' rights were terminated, but that the impact of the latter loss would be mitigated by the child's present attachment to her resource parents. Most important, Dr. Dyer concluded that defendant mother was not "a viable candidate for custody of" the child.

The last-stated opinion was also held by Melissa R. Marano, Psy.D., who conducted bonding and psychological examinations in September 2011. Dr. Marano stated that the child views her resource parents as her psychological parents and that, because of defendant-mother's "inflexibility and minimizations, " she "would not be able to successfully parent [the child] in a competent manner."

The trial judge also reviewed expert testimony presented by defendants at the guardianship trial. The judge considered but rejected the conclusions of Antonio Burr, Ph.D., on behalf of the father, essentially opining that cultural differences rather than parental deficiencies were the explanation for the father's shortcomings as a parent. The judge also rejected the opinion of James R. Reynolds, Ph.D., on behalf of the mother that the child "would experience some emotional distress" if removed from her foster home but would not "be at risk of harm or endangerment if she was reunited with her biological family." We defer to the trial judge's assessment of expert evaluations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).

The four subsections of the termination statute were amply proven at the guardianship trial by compelling evidence as to each defendant. Besides the harm and risk of harm we have described, DYFS proved by clear and convincing evidence that defendants were unwilling or unable to eliminate the harm; that services had been provided to defendants to overcome their parental deficiencies; that alternatives to termination of their parental rights were considered but were not in the child's best interest; and that termination of parental rights would not do more harm than good for the girl.

In guardianship cases, a child's need for permanency and stability is a "central factor" that guides the court's decision. K.H.O., supra, 161 N.J. at 357. The child in this case needs permanency and stability in her life. DYFS proved that defendants are not capable of fulfilling those needs.

Judge Whipple did not err in concluding that the best interests of the child require a permanent home and an opportunity to be adopted. She correctly terminated the parental rights of defendants.


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