Opinion
DOCKET NO. A-1412-13T1
03-19-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. Y.Z., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF D.Z., a minor.
Rebekah E. Heilman, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Heilman, on the brief). Jessica Steinglass, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann Avram Huber, Deputy Attorney General, on the brief). Margo E.K. Hirsch, Designated Counsel, argued the cause for minor D.Z. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Hirsch, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Koblitz and Haas. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-129-11. Rebekah E. Heilman, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Heilman, on the brief). Jessica Steinglass, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann Avram Huber, Deputy Attorney General, on the brief). Margo E.K. Hirsch, Designated Counsel, argued the cause for minor D.Z. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Hirsch, on the brief). PER CURIAM
Defendant Y.Z. appeals from a November 4, 2013 order of the Family Part, terminating her parental rights to her son David and denying defendant's application for continued visitation with David. We affirm.
We use a pseudonym to protect the child's privacy.
I
The long and very sad history of this case has been detailed in our prior opinions and can be summarized more briefly here. N.J. Div. of Youth & Family Servs. v. Y.Z. (Y.Z.), No. A-4638-10 (App. Div. June 14, 2012); N.J. Div. of Youth & Family Servs. v. Y.Z. (Y.Z. II), Nos. A-4638-10, A-1566-12 (App. Div. Mar. 27, 2013). David, a special needs child who is now almost fourteen years old, has been in foster placements since 2008 because defendant is unable to care for him due to her own significant limitations. Her unfitness to parent this child has never been an issue. Indeed, in the appeal resulting in our June 14, 2012 opinion, defendant did not contest the trial court's finding that the Division satisfied the first three prongs of the best interests test. N.J.S.A. 30:4C-15.1(a). The appeal turned only on the fourth prong.
The Division of Youth and Family Services is now known as the Division of Child Protection and Permanency (Division).
In that opinion, we reversed the trial judge's finding that the Division had not satisfied the fourth prong, and we concluded that defendant's parental rights should be terminated. As we summarized in our 2012 opinion:
This case involves a [defendant] who will never be able to parent [David], and an older special needs child who desperately needs to find an adoptive home before the window of opportunity closes for him. He has been in foster care for years now. Unlike the psychologically fragile, suicidal teenager in [N .J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88 (2008)], who was bonded with her mother and had "no prospect" of adoption, [David] has a foster family willing to adopt him. See E.P., supra, 196 N.J. at 92.
[Y.Z., supra, (slip op. at 22).]
Throughout the litigation, all the testifying experts, including defendant's expert, had agreed that she was not a fit parent. As we found in our 2012 opinion:
Every expert who testified at the trial agreed that this child has a paramount need for a permanent home. They all agreed that, while he has a strong emotional attachment to his mother, the child cannot possibly be reunited with her because she is utterly incapable of acting as his parent.
[Id. at 18.]
Due to defendant's psychological problems and her relationships with a series of abusive men, the child grew up "parentified," that is, he essentially functioned as defendant's parent rather than the other way around, and he placed her needs ahead of his own. However, without an available adoptive parent with whom David could bond, the relationship with his mother was all he had in the way of emotional support.
At the time of our 2012 opinion, David's then-foster family was prepared to adopt him. With that prospect of a permanent home in place, we concluded that the fourth prong was satisfied and this child was entitled to finally achieve the permanency he so badly needed. We remanded to the trial court to enter an order terminating defendant's parental rights. We also directed the trial court to evaluate whether defendant should continue to have visitation with the child because the expert witnesses at the trial had opined "that continuing visits with [defendant] would be important as the child transitions to adoptive status." Id. at 23.
Defendant filed a petition for certification to the Supreme Court, limited to the fourth prong. While the petition was pending, the trial judge held an evidentiary hearing on September 14, 2012 concerning the visitation issue. After hearing testimony from two expert witnesses, whom the judge found credible, the judge determined that defendant's visitation with David should be terminated. We briefly review that hearing record.
According to Dr. Frank Dyer, defendant was unable to control her emotions and made inappropriate comments at the visits, of a type likely to undermine her son's willingness to be adopted. Dr. Elizabeth Smith opined that the visits were detrimental because they increased the child's feelings of guilt that "if he were adopted and if he didn't see his mother anymore, she would cry and she would be sad." Dr. Smith further opined: "[H]is whole focus is on what the [effect] of events will have on his mother. It's almost as if he is the parent and she is the child. He can't risk hurting her feelings."
Dr. Smith also referred to reports from the child's therapist that the visits were causing David to become upset, and that defendant was taking actions designed to disrupt his foster placement.
Things like giving him a cell phone so that he can surreptitiously . . . call his mother when he's not supposed to. Telling him [inaccurate] things like his siblings are living with her and he's the only child that's . . . in foster care. . . .
Also, talking about the placement issues as if I'm going to fight for you. I'm not going to let you go. You're not going
to be adopted. . . . [W]hen [the child] was speaking . . . it seemed reflective of that kind of parentification and the kind of almost panic that he had to take care of his mother and that everything depended on how she felt.
. . . .
If he keeps in that state where everything is about mom, it's going to continue to harm his mental health, his ability to adjust to the new family, his ability to do well in school. . . . [H]e needs to be given the opportunity to start thinking about adults taking care of him and being nurturant of him . . . .
Unfortunately, while the petition was pending, David's foster parents advised the Division that their circumstances had changed and they were no longer willing to adopt him. Fortunately, the Division promptly located another foster parent, R.B., who was willing to adopt David. R.B., a single man with other foster children, was an adult whom David already knew and liked. R.B. had served for several years as a back-up caregiver for David's foster family, who were also his neighbors.
Shortly thereafter, on March 13, 2013, the Court remanded the case to us for reconsideration "in respect of only prong four of N.J.S.A. 30:4C-15.1(a)," based on the original foster family's unwillingness to adopt David. The Court also directed that the remanded appeal be consolidated with a separate appeal defendant had filed, "concerning the trial court's denial of defendant's motion to vacate the termination of parental rights based on the Division's 'rule-out' of [David's] grandmother and aunt as caregivers." The Court further ordered that we or the trial court re-evaluate the termination of defendant's visitation rights and the relationship between the child and the new proposed adoptive parent.
In our March 27, 2013 opinion on remand, we affirmed the trial judge's well-reasoned decision denying defendant's application to re-consider the third prong, regarding allegedly available relatives. We found that defendant's appeal on that issue was based on a record consisting of inadmissible hearsay and was otherwise patently without merit.
However, we remanded the remaining issues to the trial court, noting:
We cannot possibly re-evaluate the fourth prong without an evidentiary record. Nor can we re-evaluate the visitation issue without a further record. The trial judge, who is intimately familiar with this case and these parties, is in the best position to create that record and to decide the issues in the first instance.
[Y.Z. II, supra, (slip op. at 6).]
Our directions for the trial court remand proceedings were quite specific and reflected the limited issues set forth in the Court's remand order. We ordered the trial court to evaluate David's relationship with the foster parent, R.B., and determine "in light of that evaluation whether termination of [defendant's] parental rights is now in the child's best interests." Ibid. We anticipated that further psychological evaluations of the child and his relationship with the foster parent would be required. We also anticipated that a testimonial hearing would be required and that the trial judge should conduct an in camera interview with David, who at that point was old enough to express his wishes concerning his placement. In light of the prior failed placement, we also suggested that the proposed adoptive parent should testify concerning his willingness to adopt David.
Addressing the visitation issue, we required a further psychological evaluation of defendant "to determine her current psychological condition and the benefits or pitfalls of visitation." Ibid.
On remand, the trial court held an evidentiary hearing on October 29, 2013, and November 4, 2013. The judge also interviewed David in camera on November 1, 2013. Dr. Smith testified that she had recently separately evaluated David and defendant, and had done an evaluation of David with the foster father. During his evaluation, David told Dr. Smith that he was "very happy" living with his foster father and his "foster brothers," and "wanted to be adopted." When asked about his mother, he expressed love for her but no longer seemed to be constantly worrying about her well-being as opposed to his own. Dr. Smith opined that the child was very vulnerable, after being in foster care for so long with no permanent placement, and would be severely harmed if he could not be adopted by R.B. "He just wants a family. He just wants . . . what every kid wants and he's really happy where he is." She opined that R.B. was an excellent, loving, capable parent. Dr. Smith also found that David had a warm, positive, and secure attachment with R.B.
At a case conference on September 18, 2013, the Law Guardian reported that David affirmatively wished to be adopted by R.B. She presented the judge with a letter David had written expressing that wish. At that point, David did not want to be interviewed by the judge.
Dr. Smith also opined that defendant was neither able to act as David's parent nor support him in his new placement.
Because basically what she wants from him is to be his world again.
. . . [S]he wouldn't be able to tolerate him being happy with another person. She wouldn't be able to tolerate his not needing her.
So if he were to have, even limited visitation . . . with her, I think all of this stuff would come flooding back. . . . [H]e would immediately feel guilty that she's alone. That she's sad. And I think at best, it would cause him a lot of sadness and stress. At wors[t], I think it would destabilize his placement. . . .
He has got all these learning disabilities. He has got attention deficit. He needs as much bolstering and as much support as he can get. And he's getting that now. And he's just blossoming. You know, he's just thriving where he is . . . .
A second expert, Dr. Dyer, agreed with Dr. Smith's assessment, that if defendant were permitted renewed visitation with David, she would undermine his current placement. He also emphasized the extreme importance to the child of having a permanent home with a nurturing, positive role model and caretaker. Dr. Dyer opined that David had already formed a "strong connection" to R.B., who was a very capable parent. Dr. Dyer opined that David would not suffer any psychological harm if his mother's parental rights were terminated. David also clearly stated to Dr. Dyer that he wanted to live permanently with R.B.
The foster father, R.B., testified that David had been living in his home since March 2013, but that he had known David for three years before that. According to R.B., David was doing "great" living in his home, and R.B. was committed to the child and was "one hundred percent" interested in adopting him.
In his interview with the judge, David, then age twelve, referred to R.B. as his father and the other children in the home as his brothers. He expressed an unequivocal desire to be adopted by R.B., because R.B. loved him and took good care of him. He did not mention his mother. When the judge specifically asked about his mother, David told the judge that he was "a little sad" about not seeing his mother for a while, "but it seems okay." When the judge told David that if he got adopted he might not "be seeing [his] mom," and asked David if that was "okay" with him, David replied, "Yeah, that's good" and confirmed that it would be "okay."
Defendant did not present any expert testimony to rebut the Division's and Law Guardian's experts. She did not testify, and she did not appear for the second day of the hearing.
In a cogent oral opinion placed on the record on November 4, 2013, the trial court found "by clear and convincing evidence that termination of parental rights is now in [David's] best interest, that the Division has proven prong four by clear and convincing evidence. I would even say, by even stronger than that." The judge found that the case had changed "dramatically" from the time, years before, when the court did not have "any good choices" because the mother was unfit but there was no permanent placement for David.
The judge found R.B.'s testimony entirely credible, and was impressed with R.B.'s genuine delight at having David as part of his family. The judge concluded that R.B. was committed to adopting David. The judge found that David had a "warm and loving" relationship with R.B. and the child sincerely wished to be adopted by his foster father.
The judge fully credited the testimony of Drs. Smith and Dyer, and concluded that termination of defendant's parental rights would not do more harm than good. The judge also accepted Dr. Dyer's opinion that defendant "has undermined every placement" that David had in the past by making false promises to the child that he was "going to come home" and live with her. The judge concluded that it was not in David's best interests to have any further visits with his mother.
II
On this appeal, our review of the trial judge's opinion is limited. We are bound by his factual findings, so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). We owe particular deference to his credibility determinations and to his expertise as a Family Part judge. Ibid.; Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). Based on our review of the record, we find no basis to disturb the judge's factual findings, and in light of those findings his legal conclusions are entirely correct. We affirm substantially for the reasons stated by the trial judge.
On this appeal, defendant first argues that the Division did not prove prong two of the best interests test. We decline to address that issue, because defendant did not raise prong two in the prior appeal before this court, or before the Supreme Court, and it was not within the scope of the Court's remand to us or our remand to the trial court.
Next, defendant contends that the Division did not prove prong three, because the agency improperly ruled out relative placements. We decided that issue in our previous opinion of March 27, 2013, which is the law of the case. Y.Z. II, supra, (slip op. at 7); see Lombardi v. Masso, 207 N.J. 517, 538-39 (2011); Washington Commons, LLC v. City of Jersey City, 416 N.J. Super. 555, 563-64 (App. Div. 2010), certif. denied, 205 N.J. 318 (2011). We add only this comment.
Defendant's reliance on New Jersey Division of Child Protection and Permanency v. K.N., 435 N.J. Super. 16 (App. Div.), leave to appeal granted, 219 N.J. 624 (2014), is misplaced. That case holds that under Title 30, the Division may place a child with a relative, even if the relative is not licensed by the Division as a resource home and might not qualify for licensure due to a prior domestic violence incident. Id. at 29. The case is simply not on point here. As we indicated in our March 27, 2013 opinion, defendant's reconsideration motion did not present the trial court with any legally competent evidence that her relatives were currently willing to care for David. Y.Z II, supra, (slip op. at 7). It is far too late in the day to attempt to re-litigate the third prong based on bald assertions. It is also not in David's best interests to remove him from a loving, stable home with his foster father and make him start over in a new placement. See N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 82 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014).
Defendant also argues that the Division failed to prove prong four because the agency did not have an expert re-evaluate the bond between defendant and David. Contrary to her argument, neither the Supreme Court nor this court ordered such a bonding evaluation as part of the remand, and defendant did not ask for a new bonding evaluation during the remand. In light of the overwhelming evidence that contact with defendant would be detrimental to the child, we do not fault the trial judge for not requiring a current bonding evaluation.
In fact, according to her attorney's statement on the record on September 18, 2013, defendant did not even appear for an evaluation by her own expert psychologist, Dr. Burr.
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Further, on this record, another bonding evaluation was not required, because defendant was clearly unfit to care for David as his parent, a capable foster parent was willing to adopt him, and twelve-year—old David strongly expressed his wish to be adopted. In light of the prior bonding evaluations between defendant and David, and the two current psychological evaluations of the child and defendant, a new bonding evaluation clearly would not have changed the result here. To the contrary, another bonding evaluation was not only unnecessary but would have been detrimental to the child.
For the same reasons, we affirm the trial judge's order denying visitation, a decision amply supported by expert testimony. Defendant's appellate arguments do not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
The trial judge described this case as haunting and we agree. No child should have to wait as long as David has to find a real home. Fortunately, David has a second chance at a permanent, stable, loving home, with a capable parent who is committed to him, and adoption by R.B. is clearly in David's best interests. We do not doubt that defendant loves David, but she cannot act as his parent. Defendant, represented by able counsel, has had a full and fair opportunity to litigate multiple appeals and remand hearings. She is not entitled to endlessly re-litigate this case, while her son is deprived of a permanent home she cannot provide for him.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION