August 1, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
A.M.G., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF D.M.G. and S.C.G., Minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-35-12.
Brause, Brause & Ventrice, L.L.C., attorneys for appellant (Peter Ventrice, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; T. David Wand, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor respondents, D.M.G., and S.C.G. (Christopher A. Huling, Designated Counsel, on the brief).
Before Judges Simonelli and Accurso.
A.M.G. appeals from a June 4, 2012 final judgment terminating his parental rights to his children Dan and Sally.He contends that the Division of Youth and Family Services (the Division or DYFS) failed to prove by clear and convincing evidence the four prongs of N.J.S.A. 30:4C-15.1 and thus the court erred in terminating his parental rights. We disagree and affirm.
The Division's first encounter with this family was on October 24, 2006, when Dan was only five days old. A.M.G. had come home at 5:00 a.m. under the influence of crack cocaine and alcohol and began cursing his partner P.C. and throwing toys and a swing procured for their new baby. A.M.G. was arrested after he choked and kicked police officers who responded to the home.
A.M.G. admitted to a DYFS caseworker that he was under the influence of crack cocaine and alcohol at the time and the Division substantiated neglect as to both parents. The parents agreed to a safety protection plan providing that Dan would not be left alone with A.M.G.
That incident was followed by several more referrals to DYFS in the ensuing years reporting domestic violence and substance abuse in this family. In November 2006, DYFS received a referral from the police that A.M.G. had come home intoxicated and physically abused P.C. while Dan was in the house. The Division again substantiated neglect as to A.M.G., the caseworker noting it was the second incidence of domestic violence in the first month of Dan's life. In March 2007, the police again responded to a domestic disturbance between A.M.G. and P.C., this time in a car in which Dan was a passenger. In August 2007, P.C. called the police after A.M.G. allegedly struck P.C. in the face in the midst of an argument. Dan was not present. P.C.'s mother, N.K., reported to DYFS that A.M.G. nearly broke P.C.'s jaw on that occasion. In February 2008, DYFS was again contacted by the police regarding another domestic disturbance. The police reported that both P.C. and A.M.G. had been drinking when P.C. left their home and got into the family's pick-up truck. A.M.G. followed and threw a glass candlestick at P.C., shattering the truck's window and hitting P.C. in the nose. A.M.G. fled and a warrant was issued for his arrest.
Two weeks after the incident in the pick-up truck, DYFS filed a complaint for care and supervision of Dan. A.M.G. completed drug treatment and an anger management program, following which the case was dismissed. Domestic violence continued, however. While the case was pending, police responded to the family's home in July 2008 after A.M.G. and a woman companion allegedly beat P.C. and wrested Dan from her arms. Dan was almost two years old at the time and had to be transported to the hospital for evaluation after he appeared to be favoring one of his arms.
In February 2009, P.C. called the police after a verbal altercation with A.M.G. In April 2009, Sally was born. In August 2009, P.C. reported to the police that A.M.G. had thrown her to the ground during an argument, and he was arrested. A.M.G. began substance abuse treatment in February 2010. In April 2010, a man delivering pizza to the couple's home called the police after A.M.G. allegedly kicked P.C. in the ribs while she was feeding Sally. Sally was in a high chair and Dan was also present. The physical confrontation between the two ended when A.M.G. head-butted P.C. causing her nose to bleed. The Division filed a complaint for investigation and again substantiated neglect against A.M.G. In June 2010, both P.C. and A.M.G. refused to complete substance abuse evaluations.
In August 2010, A.M.G. was arrested for driving under the influence with a suspended license and no insurance. P.C., also apparently intoxicated, was in the car, as were the children. The Division effected an emergency removal and placed the children with their maternal grandparents where they remained through trial. The Division substantiated both parents for neglect.
A.M.G. underwent a substance abuse evaluation on August 27, 2010, and was referred for intensive inpatient treatment at Sunrise House. After initially refusing to attend Sunrise House, A.M.G. was admitted on September 23, 2010. P.C. was discovered dead in the family home of an apparent suicide on October 2, 2010. A.M.G. was subsequently discharged from Sunrise House for non-compliance with the program's rules.
A forensic assessment of the family conducted at the court's direction prior to P.C.'s death, revealed Dan was a vulnerable anxious child who had witnessed extensive domestic violence between his parents. The same report described A.M.G. as an "immature, anti[-]social, narcissistic adult with anger management difficulties, " who evidenced a disregard of his children's needs and safety. Following his mother's death, Dan was diagnosed as suffering from post-traumatic stress disorder (PTSD). He began a course of trauma–focused cognitive behavioral therapy to address symptoms of night terrors, intrusive thoughts, frequent bed wetting, and difficulty separating from his grandparents.
The Division also offered services to A.M.G., and he began two months of therapeutic supervised visitation with both children. During this period, A.M.G. was ordered into a Batterers Intervention Program. The program reported to the Division that A.M.G. had missed ten sessions during the first thirteen weeks of the program. The progress report also noted that A.M.G. denied having committed abuse and "continues to state that he should not be in the [Abuse Ceases Today – ACT] program because his wife is deceased and he's not dating."
In January 2011, A.M.G. began enhanced supervised visitation with his children. He refused for two months, however, to participate in the parenting coach component of the program. The Division suspended A.M.G.'s sister's supervision of his weekend visits with the children soon after Dan's therapist reported that statements A.M.G. made to Dan exacerbated his PTSD symptoms. A forensic assessment of A.M.G.'s sister found her too protective of A.M.G. to be able to adequately supervise his interactions with the children.
In July 2011, A.M.G. tested positive for marijuana and alcohol. N.K., the children's grandmother, also supplied the Division with pictures and video taken by a private investigator of A.M.G. leaving a liquor store with a six-pack of beer and empty cans in the trash outside his home. At the permanency hearing on July 14, 2011, the court was apprised of this information and the Division was granted a three-month extension to present a permanent plan for the children while it explored allegations that A.M.G. was not maintaining his sobriety. The Division also expressed concern about Dan's continued symptoms of trauma and that A.M.G. obtain appropriate counseling to allow him to address Dan's needs.
On July 21, 2011, A.M.G. again tested positive for alcohol. Subsequently, A.M.G.'s therapist reported that although A.M.G. had made progress by acknowledging that Dan had witnessed more domestic violence than A.M.G. had been willing to admit and by acknowledging the effect those events have had on Dan, A.M.G. continued to vacillate as to his contributions to the violence between himself and Dan's mother. Further, although previously acknowledging the negative effect that drugs and alcohol had had on his life, since stopping his substance abuse treatment, A.M.G. had regressed into denial. At the next permanency hearing, the Division recommended the termination of A.M.G.'s parental rights followed by adoption by the children's maternal grandparents with whom they had been residing.
At the termination trial, the Division presented two of the Division's caseworkers who testified to the Division's interactions with the family and the agency's record. The Division also presented Dr. Robert Kanen who conducted a psychological evaluation of A.M.G. and bonding evaluations of A.M.G. and the maternal grandparents with the children.
Dr. Kanen testified that A.M.G. presented as a self-centered individual with anti-social features and self-destructive impulsivity. He displayed no signs of mental illness but was observed to be prone to irritability and impatience. The doctor reported that A.M.G. described P.C. "as a hard person to live with." A.M.G. minimized the violence in his relationship with P.C. and continued to maintain that domestic violence had not occurred in front of the children. Dr. Kanen concluded that A.M.G. had not taken responsibility for his own actions, was defensive about admitting his problems, and had a history of poor judgment and aggressive acting out, especially under the influence of alcohol. Dr. Kanen opined that although A.M.G. has completed a number of treatment programs, they have had little effect because A.M.G. is not motivated to change and continues to deny the extent of his problems.
Dr. Kanen testified that while both children appeared comfortable and bonded with their father, Dan had an avoidant attachment to him, causing him to back off whenever his father demonstrated irritability. The doctor testified that Dan's having witnessed the violence between his parents made him hypersensitive to the threat his father poses. Dr. Kanen found A.M.G. impatient and irritable in interacting with his children, poking Sally in the ribs at one point when she did not do as she was told. He concluded that Sally's bond to her father was an insecure one as she lacked experience of him being consistent and reliable.
Dr. Kanen testified that the children's bond to their maternal grandparents, in contrast, was strong and secure with both children viewing them as parental figures. The children viewed them as reliable and consistent and were thus comfortable in their presence. The doctor found the children to be strongly attached to their grandparents. Dr. Kanen testified that while the children would suffer grief were A.M.G.'s parental rights severed, their grief could be overcome with counseling and emotional support from their grandparents. He stated that a failed reunification attempt, however, would further traumatize the children. The doctor concluded that the children would suffer serious and enduring harm if parted from their grandparents. Further, the harm was one A.M.G. would be unable to ameliorate because he was not sensitive to the children's needs and lacked the ability to empathize with their loss. Dr. Kanen concluded that the children need permanency and that A.M.G. is unable to parent the children now and will be unable to do so for the foreseeable future.
The Law Guardian presented N.K. to testify on behalf of the children. She described some of the physical injuries P.C. had received at A.M.G.'s hands. N.K. testified that both Sally and Dan made comments indicating they had witnessed domestic violence between their parents but that Dan talked often about the violence between them when he first came to live with her. The boy would also trip, push, and head-butt his sixteen-month-old sister. She and her husband were very concerned about this aggressive behavior, which she testified had lessened considerably during the time the children were in her care. N.K. testified that she and her husband, the children's grandfather, were committed to adopting Dan and Sally.
The Law Guardian also presented the testimony of Dr. Cynthia Lischick, an expert on domestic violence and its effects on both adult victims and their children. Although she had not conducted an evaluation of any member of the family, Dr. Lischick had reviewed a substantial amount of the documentation presented at trial. She opined that A.M.G.'s abuse of P.C. was not episodic but rather a pattern of coercive control, characterized by physical abuse, intimidation, emotional abuse, exploitation, isolation, and regulation. She was of the view that both Dan and Sally showed evidence of the adverse psychological and behavioral effects resulting from their exposure to the domestic violence between their parents. Dr. Lischick concluded that the children faced a high degree of danger and lethality resulting from A.M.G.'s pattern of abuse and his lack of insight into the negative effects his behavior has on his children.
A.M.G. testified on his own behalf and presented the testimony of his sister and girlfriend. A.M.G. testified to the many programs he had attended to address his history of substance abuse and to what he characterized as the successful completion of the ACT program. He described the home he had prepared for the children in his mother's house and his ability to financially care for the children and provide them a safe and comfortable place to live. He described the successful course of visitation with Dan and Sally throughout the litigation and the good relationship he enjoyed with his nine-year-old son from a prior marriage. He testified that he had never had any anger problem involving his children and that he wished to have Dan and Sally returned to his care.
A.M.G.'s sister testified to his good relationship with the children, and that he had always acted appropriately during the time she supervised his visitation with Dan and Sally. She testified that A.M.G. was a very good father and committed to the care and well-being of his children. A.M.G.'s girlfriend testified that they had been dating for a little less than a year. She drove A.M.G. to his visits with the children and saw them run to greet him with hugs and kiss him goodbye. She also saw A.M.G. interact with his nine-year-old son. She testified she had never seen A.M.G. direct anger to any of his children and that the time spent with them was always happy. Although she testified that she drove A.M.G. to his visits with the children because he did not have a driver's license, she was unaware of why his license had been suspended.
Judge Gibbons Whipple presided over the trial and prepared a comprehensive opinion detailing her findings and conclusions. She accepted the unrebutted expert opinions of Dr. Kanen and Dr. Lischick of the harm A.M.G. has inflicted on his children and his refusal to take responsibility for the physical violence in his relationship with P.C., or the effect it has and will continue to have on Dan and Sally. While noting that Dr. Lischick's opinion was not based on having interviewed the family but rather on a review of the records and her training and experience of working with battered women and children, Judge Gibbons Whipple deemed her testimony compelling. The judge also found Dr. Kanen to be a well-qualified and credible witness and his conclusions amply supported by facts contained in the record.
The judge deemed the Division's caseworkers credible witnesses, experienced with this family and having detailed knowledge of the Division's efforts on the family's behalf. She likewise accepted the testimony of N.K., the children's grandmother, based on her demeanor. Judge Gibbons Whipple, however, discounted the testimony of A.M.G.'s sister finding her "either not aware or in denial about the dramatic negative effects that [A.M.G.] has had on these children." Significantly, the judge did not find A.M.G. credible based on his conflicting testimony about events documented in the record.
After reviewing the established law governing a guardianship proceeding, the constitutionally protected rights of parents, and the parens patriae responsibilities of the State, Judge Gibbons Whipple then proceeded to review the testimony in the context of the four prongs of the best interests standard of N.J.S.A. 30:4C-15.1. The judge found that the record clearly and convincingly established that the health and development of the children had been and would continue to be endangered by their parental relationship.
She found the record replete with evidence that the environment in which the children resided with their parents was "wrought with serious violence and substance abuse, " and that the Division had established its severe effect on their continued well-being. Although she found the children clearly suffered from the loss of their mother, prior to her death they had been unwilling witnesses to her having been "kicked, punched, head-butted, and shoved to the ground" by their father. Judge Gibbons Whipple noted that at the time of trial, almost two years after his removal from his parents, Dan was still experiencing significant symptoms of night terrors, aggressive behavior, and bed wetting as a result of his exposure to domestic violence. More troubling was the testimony of the experts that Dan would likely suffer the results of that experience for the rest of his life.
The judge also found the record replete with evidence of A.M.G.'s consistent substance abuse which resulted in the children's eventual removal. She concluded that A.M.G. had failed to fully appreciate the problems evident in his parenting of the children, even after becoming involved in the services arranged by the Division. Judge Gibbons Whipple found that A.M.G. continued to abuse alcohol and failed to make progress in therapy designed to allow him to accept responsibility for the violence he had committed and its horrible effects on his children, "which ultimately caused [them] to remain in foster placement for nearly two years."
As to the second prong, Judge Gibbons Whipple found that the Division had established by clear and convincing evidence that A.M.G. is unwilling or unable to overcome or eliminate the harm facing Dan and Sally, but continued to "minimize, deny, and place blame upon others, including P.C." He was unable to overcome his propensity for domestic violence and substance abuse and thus unable to provide a safe and stable home for his children. Judge Gibbons Whipple placed considerable reliance on the unrebutted testimony of Dr. Kanen who expressed significant concern about the impatience and irritability A.M.G. exhibited toward the children in the doctor's presence. She found that A.M.G. continued to present as angry and irritable, and to blame others, best illustrated by his statement that he did not need a Batterers Intervention Program "because P.C. was dead and he was not dating."
The judge underscored the children's need for permanency given the chaotic life they suffered with their parents. She found on the basis of the unrebutted expert testimony that removing the children from their grandparents, whom the children now view as their psychological parents, would cause them serious and enduring harm. The judge found the record devoid of any evidence that A.M.G. would be able to successfully parent Dan and Sally in the foreseeable future and that removing them from the safe and stable home their grandparents had established would expose them to serious risk of psychological harm that Dr. Kanen testified A.M.G. would be unable to ameliorate. Accordingly, Judge Gibbons Whipple concluded that the Division had established the second prong by clear and convincing evidence.
The judge found that the record presented ample evidence that the Division had made diligent efforts to assist A.M.G. to overcome his propensity for violence and the substance abuse that led to the children's removal sufficient to satisfy the third prong of the best interests test. The Division had been involved with the family from Dan's birth and had provided them a plethora of services, including case plans, family team meetings, parenting skills training, substance abuse treatment, and a Batterers Intervention Program. The judge found that although A.M.G. had engaged in the services offered, they had little effect because of his unwillingness to face his problems and forge a commitment to change his behaviors. "As such, the court finds that his failure to adequately engage in services cannot be attributed to the Division." Judge Gibbons Whipple concluded that after considering the Division's unsuccessful efforts at reunification, there were no alternatives to termination in this case. Any other course would expose the children to unacceptable uncertainty certain to further exacerbate the harm they had already suffered.
Finally, the judge concluded that termination would not do more harm than good and thus the Division proved the fourth prong by clear and convincing evidence. Judge Gibbons Whipple found that the children's grandparents had evinced an unwavering commitment to them, contrasted with A.M.G. who had "demonstrated unfitness and neglect." The children had thrived in their grandparents' care, although still suffering from the "detrimental effects of exposure to a violent relationship." The unrebutted testimony was that the children were bonded to their grandparents and would suffer severe and enduring harm if separated from them. The judge also expressed the court's confidence that the grandparents could mitigate any harm resulting from the severance of their legal relationship with their father. The judge concluded that there was no basis to delay permanency any longer and that termination of A.M.G.'s parental rights was appropriate on the proofs presented.
The law governing termination of parental rights is well settled. The standards are codified and set forth in a four-prong test. N.J.S.A. 30:4C-15.1a. Termination is permissible only if the Division presents 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 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.
The statute provides "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999).
Our review of the trial court's application of the facts of the case to these standards is limited. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). We "must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). We may not disturb the trial court's findings "unless they are so wholly unsupportable as to result in a denial of justice." Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). Even where the appellant "allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, " deference must be afforded unless the court "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citations omitted).
Our review of this voluminous record convinces us that Judge Gibbons Whipple's findings are amply supported by the record. A.M.G.'s contention that the judge's findings are not based on adequate or credible evidence in the record is plainly inaccurate.
We affirm the termination of parental rights substantially for the reasons expressed by Judge Gibbons Whipple in her thorough and thoughtful written opinion of June 4, 2012.