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New Jersey Division of Youth and Family Services v. A.B.

Superior Court of New Jersey, Appellate Division

July 16, 2013

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
v.
A.B. and D.F., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF E.F., Minor.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 29, 2013.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-35-11.

Joseph E. Krakora, Public Defender, attorney for appellant A.B. (Dana Citron, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant D.F. (William J. Sweeney, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sharon A. Walli, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor E.F. (Caitlin McLaughlin, Designated Counsel, on the brief).

Before Judges Yannotti, Hayden and Hoffman.

PER CURIAM.

Defendants, A.B. (Albert) and D.F. (Doreen), separately appeal from the judgment of the Chancery Division, Family Part, terminating their parental rights to their daughter, E.F. (Ellen), then ten years old.[1] Addressing defendants' appeals in a single opinion, we affirm, substantially for the reasons set forth in Judge James Hely's cogent nineteen-page written opinion of March 1, 2012.

I.

The following facts are derived from the trial record. Albert is a registered sex offender and a Tier 2 Offender pursuant to Megan's Law.[2] On January 11, 2008, the Division of Youth and Family Services (Division)[3] received a referral that Albert raped A.D., Doreen's niece and Ellen's cousin, a then eight-year-old girl. Albert was originally charged with molestation of a child, but on March 26, 2009, he pled guilty to third-degree endangerment of the welfare of a child, N.J.S.A. 2C:24-4. During the plea hearing, Albert testified that he knowingly exposed himself to A.D. for his own sexual gratification. Based on his plea, Albert received a state prison sentence.

The Adult Diagnostic and Treatment Center issued a report pertaining to the sexual abuse charges against Albert. According to the report, A.D.'s mother took her to the hospital after A.D. claimed that Albert had placed his penis in her rectal area while she was asleep at her aunt's home. A.D. stated that she had been sexually assaulted by Albert at least fifty times over the course of four to five months, which included anal intercourse. According to A.D., Albert threatened, "Don't tell anybody or I'll keep doing it and I'm never going to stop."

Additionally, according to the report, Albert agreed during a psychological evaluation that

some sexual relations with children are a lot like adult sexual relationships; society makes a much bigger deal out of sexual activity with children than it really is, sometimes victims initiate sexual activity; some children are much more adult-like than other children[;] [s]ome men who molest children really don't like molesting children; [and] . . . the main thing wrong with sexual activity with children is it's against the law.

In April 2009, the Division received a referral from Ellen's therapist indicating Ellen disclosed that Albert had touched and rubbed her vagina on multiple occasions. According to the therapist, Ellen also claimed that Albert had threatened to hurt her if she disclosed the abuse to anyone. Ellen indicated that her mother lacked knowledge of the abuse. Thereafter, a Division caseworker interviewed Ellen, who confirmed that Albert had "touched her." The caseworker also interviewed Doreen, who denied knowledge of the abuse.

Following Albert's release from prison later that month, Doreen informed the caseworker that she had "bumped into [Albert] on the street" while she was out with her niece and Ellen. Upon seeing Albert, Doreen's niece froze and Ellen ran down the street. Based on the girls' reactions, Doreen claimed that she believed Albert had done something to them. Ellen informed the caseworker that she did not want to see her father.

In July 2009, Doreen signed a case plan in which she agreed to provide Ellen with a "safe secure environment free from neglect, sexual and physical abuse[, ]" and that Albert would not have unsupervised contact with Ellen.

Throughout the Division's involvement, it was apparent that both Albert and Doreen were influencing Ellen to change her story regarding the sexual abuse and lie to the Division. On July 27, 2009, Ellen denied to a Division worker that she had ever been inappropriately touched by anyone. She claimed that she has a relationship with her father and lives with him and her mother; however, the next day, Ellen changed her story and claimed that her father did not live with her and her mother.

On August 3, 2009, after receiving a referral indicating that Albert had unsupervised access to Ellen, the Division discovered Albert in Doreen and Ellen's home. A Division worker interviewed Ellen, who claimed that she feared her father. She elaborated that her father beats her with a belt and he accused her of having sex with her cousin. However, Ellen again denied that she had ever been inappropriately touched by anyone.

As a result of discovering Albert in the home, the Division executed an emergency removal of Ellen and placed her in foster care. On August 7, 2009, the Family Part entered an order granting the Division care, custody, and supervision of Ellen, and suspending Albert's visitation with Ellen. On April 29, 2010, Doreen stipulated to the court that she permitted Albert to have unsupervised contact with Ellen and that she was aware Albert was a convicted sex offender.

Heather Diamond, MSW, LCSW, who conducted a psychosexual evaluation of Albert, opined that Albert's "sexually abusive behavior can be considered repetitive and compulsive. He is a high risk adult for child sexual abuse, especially given the fact that he does not take responsibility for his actions and has had no services to address the offense to which he pled guilty." Ms. Diamond concluded that Albert "is an impulsive, antisocial, narcissistic adult who lives a parasitic lifestyle" and "is not an appropriate candidate for reunification with his daughter."

During a family therapy session with Doreen and Ellen in May 2011, Ellen explained how Albert sexually abused her. According to the therapist, it appeared that Doreen was coming to the realization that the abuse actually took place. However, at the next session, Ellen changed her story, claiming that the abuse only happened in a dream and that she should not have spoken about the dream.

The same month, Ellen wrote a disturbing essay in school describing how Albert sexually abused her. In the essay, entitled "When I got [sic] rape, " Ellen wrote:

Have you ever got [sic] rape? I did. One Saturday morning I woke up and I saw my dad on me . . . I was not sleep and he was rubbing on my chest, kissing my face and I felt his hand go down my pants and I was so [surprised] that my father would rape me and do such bad things to me and feel me and touch me in so many bad places. Our consequences was him go to jail and for me get taken away from my mom and dad and he had to stay in jail . . . and when he got out he was on probation . . . I felt sad. I learned my lesson to tell someone next time.

In June 2011, Ellen's resource parent's daughter informed the Division that Doreen and Albert were attempting to get Ellen to change her story. Specifically, Doreen took Ellen into a bathroom during a visit and let Albert speak with Ellen on the phone. Ellen claimed that Albert told her to stop saying that he touched her.

Ellen also reported to her law guardian what had happened in the bathroom. At a hearing before Judge Hely, the law guardian stated that Albert told Ellen she must tell the Division that nothing happened and she was just dreaming, otherwise she would never see her family again. At the same hearing, the Division expressed its concern that Doreen and Albert were in contact with each other and were influencing Ellen to lie to the Division and the court. The Division reported that during a visit, a caseworker observed Doreen whispering something into Ellen's ear. Ellen informed her resource parent after the visit that Doreen told her to say during her child interview that she made up both the sexual abuse allegations and the phone conversation that took place in the bathroom.

On August 19, 2011, the court conducted a child interview. At the interview, Ellen reported to Judge Hely that Doreen told her to lie about what Albert had done to her. She confirmed that Doreen had taken her to the bathroom during a visit and put her on the phone with Albert, who encouraged her to change her story about the sexual abuse so she could come home. Ellen expressed to Judge Hely that she did not want to speak or visit with her father, and she thought if she went home that he would abuse her again. Ellen also confirmed that Doreen had encouraged her to change her story.

On October 25, 2011, the court held a hearing to determine whether to reinstate visitation between Albert and Ellen. Albert's attorney called Richard Klein, Ed.d., who had evaluated Albert and Ellen, as an expert witness. Dr. Klein claimed that his opinions were based on projective drawings performed during the evaluations. He testified that he was aware of the sexual abuse allegations against Albert, but claimed he could not find "any indications of a preoccupation with sexual matters or being a pedophile, or attraction to children." Additionally, Dr. Klein claimed that he reviewed Albert's "report from Avenel, which stated that he did not qualify as a repetitive pedophile."

As to his evaluation of Ellen, Dr. Klein testified that he did not believe Ellen had "any memory of anything that originally occurred." According to Dr. Klein, Ellen denied that Albert had physically or sexually abused her, and testing revealed no indications that the sexual abuse actually occurred. Dr. Klein opined that the case did not fit the theory of "child abuse accommodation syndrome, " meaning that he did not believe Ellen changed her story of the abuse due to fear of rejection from her parents. Dr. Klein concluded that it was in Ellen's best interests to have supervised visits with Albert.

On cross-examination, Dr. Klein could not name the elements of child sexual abuse accommodation syndrome. Dr. Klein also admitted he did not administer the sexual violence risk assessment on Albert. When asked by Judge Hely if he believed that Albert raped A.D., Dr. Klein stated, "I have no reason, clinically, based on his projectives, based on the testing that I did, to consider him to be a person who would rape an eight-year-old child. However, he was adjudicated as having raped the person." When read a quote from a report showing that Albert endorsed several statements reflective of disorders commonly held by child molesters and rapists, Dr. Klein responded that Albert did not have the intelligence to understand what he was agreeing or disagreeing with. When asked, Dr. Klein indicated that he solely uses ink blots to test whether there are indicators that a person is a sexual predator. Dr. Klein also admitted that Ellen had indicated she feared Albert.

Following the hearing, citing N.J.A.C. 10:1-22D-1.15, Judge Hely ordered that Albert's visitation with Ellen should remain suspended. The judge stated, "it would be rare that I ever found an expert less credible than Dr. Klein was today." Additionally, Judge Hely determined that Ellen would be harmed by visitation with her father. Specifically, she was fearful of her father and did not want to be with him in any way. Additionally influencing the judge's decision were Albert and Doreen's attempts to get Ellen to change her story.

The guardianship trial commenced on December 12, 2011. Doreen and Albert were not present for the first day of trial. The Division first called Barry Katz, Ph.D, who had conducted a psychological evaluation of Doreen, a bonding evaluation of Doreen with Ellen, and a psychological and psychosexual evaluation of Albert.

As to Albert, Dr. Katz testified that he had anger issues, and appeared agitated and resistant during the evaluation. According to Dr. Katz, Albert denied the allegations that he sexually abused A.D. and Ellen. Specifically pertaining to Ellen, Albert at first claimed "he didn't want to remember" anything about the sexual abuse allegations. Albert claimed that he had been hospitalized ten years prior for psychiatric issues and that he had abused drugs and alcohol.

Based on his psychological evaluation, Dr. Katz opined that Albert was impaired and unable to parent a child at the time or in the foreseeable future. A child would be at a "very high level of danger . . . in terms of sexual abuse or exploitation" if placed in Albert's care.

Dr. Katz also conducted a Sexual Violence Risk Assessment on Albert. Dr. Katz testified from his report:

The results with that testing was that there were significant factors for [Albert] that are noted in the literature and have been found to be important in terms of an individual towards children . . . . So we look at areas of mental health problems. [Albert] has issues of depression, problems with anger, acting-out behavior. That elevates the risk there.
Extreme minimization/denial regarding the offense. Again, [Albert] denies all of it, that he ever had any problem and he refused . . . to deal with it or talk about it ever. Again, that would increase higher risk.
History of suicidal ideation, problems with anger and impulse control, all these have been present of [Albert] in his record and in his reporting.

Based on the assessment, Dr. Katz concluded that Albert was unable to control his sexual impulses.

As to his psychological evaluation of Doreen, Dr. Katz noted that she had five children, none of whom were in her care at the time of the evaluation. Dr. Katz testified that Doreen had a history of alcohol abuse, but provided him with inconsistent information on her history with alcohol during the evaluation. He further testified that Doreen

denied any type of psychiatric history. However, [Doreen's] mood I assessed as being euphoric. Euphoric mood is someone who is feeling overly good for no apparent reason with affect silly at times and annoyed at other times meaning she presented with somewhat of a childlike presentation. She was at time[s] smiling happily and giggling for no apparent reason. Then other times she would get mad, pouty, refuse to answer, et cetera.

Dr. Katz opined that Doreen's low-level of intellectual functioning placed "her at higher risk of being easily led or swayed by [Albert, ] who shows a very strong, rigid, and demonstrative angry approach at times to making sure . . . people do as he says." Dr. Katz testified that it was his opinion Doreen would be unable to protect Ellen from Albert if Ellen were placed back in her care. According to Dr. Katz, Ellen was fearful of making disclosures regarding the sexual abuse because Doreen denied it ever occurred.

Dr. Katz conducted a bonding evaluation of Doreen with Ellen. Based on the evaluation, Dr. Katz testified that Ellen and Doreen have a bond with each other; however, Dr. Katz described the bond as "an insecure attachment, specifically a trauma bond." According to Dr. Katz, a trauma bond is where a

child interacts with the person in a number of conflicting ways. One way is with anxiety. Another way is regression, acting much younger than their age. Another is fear of rejection. Another . . . could be showing flashbacks to previous traumatic instances and responding less controlled way. Another way is parentified[, ] meaning that the child takes the role of the parent to reign in . . . the actual parent.

Dr. Katz also conducted a bonding evaluation of Ellen with her foster parent. Based on this evaluation, Dr. Katz opined "[t]he observation of the interaction between the two and [Ellen's] response to the foster mother indicates that she has a secure and stable attachment to the foster mother and is bonded to her in more of a traditional parent/child bond."

Based on all of his evaluations, Dr. Katz opined that Ellen would not necessarily be harmed if contact with Doreen were stopped, but "she would have to go through an adjustment at it being finalized." Finally, Dr. Katz testified that he agreed with the Division's plan of termination of parental rights followed by adoption.

The Division also presented the expert testimony of Jamila Irons-Johnson, Psy.D, who testified about child sexual abuse accommodation syndrome, as well as the testimony of Division caseworker Janice Braxton.

Albert presented the testimony of Dr. Klein, who testified primarily in accordance with his previous testimony during the October 25, 2011 hearing. Doreen did not present any witnesses. Neither Albert nor Doreen testified on their own behalf.

On November 30, 2011, Judge Hely issued a written decision and signed an order terminating Doreen's and Albert's parental rights. He carefully reviewed the evidence and presented his findings of fact and conclusions of law in accordance with the best interests test, N.J.S.A. 30:4C-15.1(a). Judge Hely concluded the Division proved by clear and convincing evidence that the best interests of Ellen support termination of Doreen's and Albert's parental rights so that Ellen can be adopted.

II.

On appeal, Doreen contends that the Division failed to satisfy the four prongs of the best interests test, while Albert solely contends the Division failed to satisfy the first prong as to him. We disagree.

"Appellate review of a trial court's decision to terminate parental rights is limited, and the trial court's factual findings should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (citation and internal quotation marks omitted). We are obliged to accord deference to the trial court's credibility determinations based upon the judge's opportunity to observe and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 412 (1998).

A parent's right to enjoy a relationship with his or her child is constitutionally protected. In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993). "Parental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

The best interests of the child standard set forth in N.J.S.A. 30:4C-15.1(a) is an effort to balance these interests. Ibid. This statute provides that the Division shall petition the court for termination of parental rights if the following four standards are met:

(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 division 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).]

"The four criteria enumerated in the best interests standard 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." K.H.O., supra, 161 N.J. at 348. Because "determinations of parental fitness are 'extremely fact sensitive, '" ibid. (quoting L.A.S., supra, 134 N.J. at 139), such considerations "require particularized evidence that address the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348.

Here, the Division proved prong one clearly and convincingly as to both Doreen and Albert. We agree with Judge Hely that Albert harmed Ellen and continued to pose a risk to her safety, as there is sufficient credible evidence in the record that Albert sexually abused Ellen and A.D.

Furthermore, Doreen threatened Ellen's safety through her relationship with Albert. See New Jersey Div. Of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) ("A parent has the obligation to protect a child from harms that can be inflicted by another parent."). She refused to acknowledge that the sexual abuse occurred, and permitted Albert to have unsupervised contact with Ellen, in direct violation of an agreement she made with the Division. We are satisfied that there is sufficient credible evidence in the record for Judge Hely's finding that Albert and Doreen conspired to convince Ellen to recant her allegations against Albert. Moreover, the record supports the judge's finding that Albert "has a domineering power over [Doreen], and she has demonstrated her unwillingness and/or inability to protect [Ellen] from [Albert]."

As to the second prong, there is clear and convincing evidence to show that Doreen is unable and unwilling to eliminate the dangers posed to Ellen by Albert. As we have explained, Doreen consistently failed to acknowledge that Albert sexually abused Ellen. The record contains no evidence that Doreen was willing to change. Instead, the record shows that Doreen continually conspired with Albert to convince Ellen to lie to the Division and the court. Judge Hely credited Dr. Katz's testimony that Doreen would be a source of emotional abuse for Ellen if she were returned to her care. We defer to the judge's credibility finding.

As to the third prong, there is substantial credible evidence to support Judge Hely's finding that the Division "made many reasonable efforts to provide services" to Doreen. Specifically, the Division provided Doreen with individual counseling, drug and alcohol treatment services, visitation, and family therapy. Despite the counseling and therapy, Doreen continued a close relationship with Albert and continued to deny that the sexual abuse occurred.

Finally, as to the fourth prong, the record supports Judge Hely's determination that termination of Doreen's parental rights will not do more harm than good. Although Ellen had a bond with Doreen, Dr. Katz described it as "an insecure attachment, specifically a trauma bond." In contrast, Dr. Katz described the bond between Ellen and her foster parent as a traditional parent-child bond. As the judge aptly concluded:

While the evidence supports that [Ellen] will suffer harm by breaking her relationship with her mother . . . I find that this harm is significantly less than the good that will come from [Ellen] in a safe, stable home free of the possibility of sexual molestation. [Doreen] has proven unable to provide such a home.

Ellen deserves stability and permanency, which will only happen through adoption by her foster mother. See K.H.O., supra, 161 N.J. at 357. Judge Hely correctly determined it is in Ellen's best interests that Doreen's and Albert's parental rights be terminated so that this can occur.

III.

Albert contends that Judge Hely erred by terminating his visitation with Ellen and that he was prejudiced in the guardianship trial by the decision. Again, we disagree.

N.J.A.C. 10:122D-1.15 provides in its pertinent part:

(a) A reduction to the visitation schedule may be made for any of the following reasons:
1. The visit will be physically or psychologically harmful to the child even with supervision. This determination shall be based on:
i. A Division representative's direct observation of harm or potential harm;
ii. A report of harm to the Division in which the harm has been verified by a Division representative;
iii. A mental health therapist's recommendations;
iv. A pending or ongoing Division investigation of allegations that the child has been harmed by the visitor; or
v. The child's report of a harmful or potentially harmful situation;

Here, the record supports Judge Hely's determination to suspend Albert's visitation privileges. As previously noted, Albert pled guilty to sexually abusing Ellen's cousin, and the allegations that he sexually abused Ellen were substantiated. The sexual abuse in itself was a sufficient basis for Judge Hely to suspend visitation. Moreover, there is ample evidence to show that Ellen feared Albert and did not want to see him. She reported this fear to the court, the Division, her law guardian, her therapists, and her foster parent.

Although Dr. Klein testified on behalf of Albert that he believed it was in Ellen's best interests to reinstate visitation, Judge Hely found Dr. Klein's testimony incredible. Cross-examination revealed that Dr. Klein failed to ask Albert general questions pertaining to sexual offenders, and instead, dubiously based his testimony on ink blots that he showed Albert during an evaluation. Dr. Klein also failed to ask Ellen about the numerous times she described the sexual abuse by Albert in the past.

Accordingly, Judge Hely's decision to suspend Albert's visitation privileges is supported by substantial credible evidence. It is obvious that visitation with Albert would have caused psychological harm to Ellen, and possibly physical harm.

Affirmed.


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