November 1, 2013
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,  Plaintiff-Respondent,
P.P. and J.E.H., Defendants-Appellants, IN THE MATTER OF THE GUARDIANSHIP OF A.A.P., a minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-30-11.
Joseph E. Krakora, Public Defender, attorney for appellant P.P. (Alan I. Smith, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant J.E.H. (Carol A. Weil, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Mary A. Hurley, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).
Before Judges Ashrafi, St. John and Leone.
Defendant-father P.P. and defendant-mother J.E.H. appeal from an August 31, 2012 judgment of the Family Part terminating their parental rights to their son A.A.P. The child is now five years old and has lived almost his entire life with foster parents who have provided a stable, nurturing home and wish to adopt him. Addressing defendants' appeals together, we affirm the judgment.
Each defendant also has three older children with one or more other partners. None of their other children are in their custody. Defendant-father is a convicted sex offender, subject to Megan's Law, N.J.S.A. 2C:7-2 to -5, and parole supervision for life, N.J.S.A. 2C:43-6.4. He was arrested three times between 1995 and 2002, when he was in his twenties, for having sexual relationships with girls who were twelve through fifteen years old. He was convicted of sex offenses and sentenced to prison.
Defendant-mother has known him from the time she was twelve years old. She refuses to terminate her relationship with him despite the risk that he presents to her children, and she cannot be trusted to supervise his contacts with children because she minimizes his sex offenses and is submissive to his dominant personality. Although DYFS at first attempted to establish an arrangement by which the child could be reunited with defendants, provided that adequate supervision of defendant-father could be ensured, the last straw was when he was arrested once again in June 2010 and charged with possession of and trading in internet child pornography. He pleaded guilty to a child pornography charge and is now serving another prison sentence. The new offense still did not cause defendant-mother to end her relationship with him. Her refusal to acknowledge the risk to children from his criminal sexual misconduct has made it impossible to trust her with responsibility for the care and protection of a child.
In a previous appeal, we considered and rejected defendants' contention that the Family Part erred in approving a permanency plan for termination of their parental rights. N.J. Div. of Youth & Family Servs. v. J.H. and P.P., Nos. A-2101-10, A-3271-10 (App. Div. March 5, 2012). Our prior opinion included a detailed recitation of the relevant facts and procedural history up to the time of that appeal. Id. at 2-16. We adopt that recitation for purposes of this decision.
While the prior appeal was pending, the Family Part held a guardianship trial over fifteen days from September 2011 to May 2012. Family Part Judge Mary K. White carefully reviewed the evidence and issued a comprehensive eighty-nine page written opinion on August 31, 2012. We have found no basis to disagree with any of the judge's detailed findings of fact and clear conclusions of law. We now affirm the judgment terminating defendants' parental rights for the reasons stated in Judge White's written decision. We add the following to highlight the law that guides our review on appeal and some prominent 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 review the record to determine if the Family Part's decision is supported by substantial and credible evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). We defer to the Family Part'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 afford 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 Part's conclusions were not wide of the mark but well-supported by the evidence.
Pursuant to N.J.S.A. 30:4C-15.1(a), 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 there was no evidence that the child was ever harmed, in particular, because he has never been in their custody and they proved their fitness to care for the child during their visitations. But DYFS does not have to wait until the child is irreparably harmed before taking action to protect him. F.M., supra, 211 N.J. at 449. In her decision, Judge White noted that the conditions of defendant-father's parole supervision do not permit him to care for a child without supervision. Defendant-mother has proven herself to be an untrustworthy supervisor because she simply does not believe his crimes are serious offenses. She minimizes them by blaming the young girls with whom he engaged in sex for "duping" him into believing they were of age. She refers to his conduct with the girls as consensual sex. She also believes his lies that the child pornography he was caught collecting and disseminating involved much older children than actually depicted. The judge noted defendant-mother's "flawed judgment regarding the risk" that he presents to children. The judge stated that allowing defendant-mother to care for her son was "unacceptably risky at this time." We agree.
"[A] mother's relationship with her child's potentially dangerous father may be an appropriate consideration if that relationship poses a clear threat to the child." Ibid. "A parent has the obligation to protect a child from harms that can be inflicted by another parent." Id. at 449-51 (affirming family's court's finding of risk of harm because the mother permitted the father to have unsupervised access to her child even though his mental illness posed a threat, the mother was committed to and dependent on him, and she was unwilling or unable to shield her child from the danger); see also M.M., supra, 189 N.J. at 270, 290 (holding that the father was unwilling or unable to alter the conditions that placed his son in danger by permitting the continued presence in the home of the substance-abusing mother); N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J.Super. 582, 587, 590-92 (App. Div. 1996) (holding that mother's refusal to end cohabitation with abusive boyfriend was appropriate consideration in terminating her parental rights). The evidence in this case contrasts sharply with G.L., supra, 191 N.J. at 608-09, where the Supreme Court reversed the termination of parental rights of an able mother, who continued a relationship with a purportedly dangerous father but who could be trusted not to live with the father, not to allow unsupervised visits with the child, and not otherwise to place her child at risk. Here, defendant-mother proved herself incapable or unwilling to protect her child from the risk presented by defendant-father's history of criminal sexual misconduct.
Nor is there any prospect that defendants' understanding and insight will improve over time and with additional counseling. They have resisted change despite DYFS's reasonable efforts. As demonstrated by his collection and dissemination of child pornography, defendant-father is apparently unable to control his urges. He did not complete sex offense relapse counseling, using the pendency of his criminal appeals as justification for terminating the counseling. Defendant-mother is unable to abandon the relationship with him in favor of her child. She refused to establish a separate home, and her submissive personality allowed him to dominate their relationship.
The mother's other three children were removed from her custody in 2007 after her oldest child, a six-year-old girl, accused defendant-father of attempting to initiate sexual contact under the table at a restaurant. The child then told investigators that defendant-father had engaged in sex with her, describing in the words of a child the nature of the action. Defendant-mother immediately accused her daughter of lying, although she knew that defendant-father had been imprisoned for sexual crimes. She minimized his sexual offenses, expressing a belief that twelve to fifteen year-old girls could consent to sexual intercourse with a man in his twenties.
Defendant-mother had rekindled her relationship with him while he was in prison and while she was divorcing the father of her three older children. When released from prison, he moved into the same apartment complex as defendant-mother and her family. During the pendency of her divorce and after a divorce judgment was entered, she would stay overnight in defendant-father's apartment. Although criminal charges did not result in 2007 from the six-year-old child's accusations, and Judge White found there was insufficient evidence of the reliability of the child's accusations, defendant-mother lost custody of her three older children at that time. Yet, she continued in the relationship with defendant-father, and, a few months later, she became pregnant with the child that is the subject of this appeal. She gave birth to him in September 2008. DYFS was notified of the birth by defendant-father's parole supervisors, and it immediately obtained court approval to remove the child from defendants' custody.
At first, DYFS attempted to have the child's maternal grandmother live with defendants and supervise any contacts of defendant-father with the child. In less than two months, however, the grandmother abandoned the plan because of domestic violence in the home. When the grandmother urged defendant-mother to take the child and leave the home together with her, defendant-mother refused. DYFS then placed the child in a foster home. From November 2008 to the time of the guardianship judgment, the child remained in the care of his foster parents and developed a strong bond with them.
In the meantime, DYFS arranged for numerous services for defendants to develop parenting skills, to gain insight into the risks of defendant-father's history of engaging in illegal sexual conduct with minors, and to facilitate a safe home for the infant. DYFS's initial objective was reunification of the parents with the child, if it could be arranged with assurance that the child, and any other children that came into contact with him, would be safe. Both defendants engaged in services arranged by DYFS, but both were essentially resistant to modifying their behavior and their beliefs that defendant-father had not done serious harm. Both showed love toward their child during supervised and in-home visitation, but neither progressed toward an understanding of the dangers of a demonstrated sexual offender being left alone to care for a child.
In June 2010, an independent law enforcement investigation discovered defendant-father violating child pornography laws. On his computer, he was downloading and trading thousands of images of children engaged in explicit sexual conduct. Some of the images were of very young children. Defendant-mother expressed shock at the revelation, but she continued to live with defendant-father for another five months while he was released on bail on the new charges. His presence in the home barred any in-home visitations of the child, in part because his bail conditions prohibited contact with children. Defendant-mother claimed, without any credibility, that her decision to remain with him was purely because of the financial difficulty of separating. However, after he pleaded guilty and was sentenced to six years in prison, she still visited him in prison every week. Her protestations to evaluators and therapists that she was no longer involved in a relationship with defendant-father were proven false by her conduct.
At the guardianship trial, several expert psychologists testified, and the court also reviewed the reports of other expert evaluators who had examined defendants but did not testify. Judge White explained why she credited the testimony of the experts presented at the trial by DYFS and the law guardian, Dr. Linda Jeffrey and Dr. Ronald Gruen, over the testimony of defendants' experts. The family therapist, Dr. Fred Gross, had testified for the defense that reunification was viable, but he acknowledged on cross-examination that he had been deceived by defendant-father and that the child pornography offenses changed the doctor's opinion about his potential fitness to care for the child. The court also noted Dr. Gross's "therapeutic alliance with" defendant-mother as coloring his view that she could learn to provide adequate protection for her child.
Regarding the testimony of defendant-mother's forensic expert, the court stated that Dr. Kenneth Goldberg did not clearly address the risk presented by defendant-father or the concern that defendant-mother "would not or could not supervise his contact with" the child. Dr. Goldberg referred to defendant-father's prior offenses as "consensual" based on inapplicable legal terminology, and he mischaracterized the nature of the child pornography found in his possession. The doctor seemed to agree with defendant-mother's minimization of the crimes. Unlike the experts for DYFS and the law guardian, Dr. Goldberg did not "account for [defendant-father's] demonstrated risk and [defendant-mother's] refusal to see it and plan accordingly." The court also discredited Dr. Goldberg's testimony that the strong bond of the child with his foster parents was actually conducive to reunification with defendants. He did not account for the inability of defendants to alleviate the psychological harm the child would suffer if separated from the foster parents he had known all his life.
We defer to the trial court's assessment of expert evaluations. In re Guardianship of D.M.H. , 161 N.J. 365, 382 (1999). Judge White's crediting the testimony of Drs. Jeffrey and Gruen fully supported her conclusion that the child's best interests required that he remain in his nurturing foster home and that he be adopted by his foster parents. 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. DYFS proved that defendants are not capable of fulfilling their son's need for a safe, stable home.
The four subsections of the termination statute were amply proven at the guardianship trial by clear and convincing evidence as to each defendant. Judge White carefully reviewed the evidence and stated her findings of fact and her conclusions of law in accordance with the requirements of N.J.S.A. 30:4C-15.1(a). She concluded by the clear and convincing standard of proof that the best interests of the child support termination of defendants' parental rights. We agree with her findings and conclusions.