Opinion
DOCKET NO. A-5795-09T1 DOCKET NO. A-5797-09T1
03-13-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. H.F. and A.S., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF A.A.S., a minor.
Rebekah E. Heilman, Designated Counsel, argued the cause for appellant H.F. (A-5795-09) (Joseph E. Krakora, Public Defender, attorney; Ms. Heilman, on the briefs). Stephanie Anatale, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Anatale, on the brief). Olivia Belfatto Crisp, Assistant Deputy Defender, argued the cause for the minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Crisp, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino, Fasciale and Maven.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-69-10.
Rebekah E. Heilman, Designated Counsel, argued the cause for appellant H.F. (A-5795-09) (Joseph E. Krakora, Public Defender, attorney; Ms. Heilman, on the briefs).
Stephanie Anatale, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Anatale, on the brief).
Olivia Belfatto Crisp, Assistant Deputy Defender, argued the cause for the minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Crisp, on the brief). PER CURIAM
This Title 30 guardianship case brought by the Division of Youth and Family Services ("the Division") returns on an appeal by H.F., the biological father of A.A.S. ("Alice"), following a remand hearing conducted in the Family Part in April 2012. Upon considering additional expert and lay testimony at that hearing, and amplifying his analysis of the relevant statutory factors, the trial judge renewed his decision to terminate H.F.'s parental rights. We affirm.
We use a fictitious name for the child.
I.
A.
The pertinent background is set forth in our unpublished decision on the initial appeal and need not be fully repeated here. See N.J. Div. of Youth & Family Servs. v. H.F., ("H.F."), No. A-5795-09 and A-5792-09 (App. Div. Dec. 19, 2011). Briefly, Alice's biological mother, A.S., gave birth to Alice in August 2002. H.F. had impregnated A.S., who was then fifteen years old, during a brief trip to New Jersey from Detroit. H.F. had known that A.S. was pregnant before returning to Detroit, but he and A.S. did not remain in contact with each other. H.F. met his daughter Alice for the first time in 2006, when she was almost four years old, and acknowledged his paternity. For several months in the fall of 2006, Alice and A.S. lived with H.F. in Detroit. After his employment in Detroit ended, H.F. relocated to New Jersey in early 2007 and began visiting with Alice. In October 2007, Alice was removed from A.S.'s care after police responded to a domestic violence incident at A.S.' residence. Alice was briefly placed in two foster homes before she was placed with her current foster parents, with whom she has resided since late 2007.
The Division filed its guardianship complaint against A.S. and H.S. in November 2009. Following a trial in May and June 2010 at which numerous lay and expert witnesses testified, the trial judge concluded that all four necessary prongs for termination under N.J.S.A. 30:4C-15.1(a) had been proven by clear and convincing evidence as to both parents.
A.S. and H.F. each appealed. While their appeals were pending, the trial court conducted a remand hearing in September 2011 addressing the discrete question of whether to permit H.F. to have interim visitation with Alice. When interviewed by the trial judge during that first remand proceeding, Alice expressed a desire to maintain a relationship with H.F. and reside with him. Consequently, the judge ordered supervised visitation for H.F. during the appeal.
In our December 2011 opinion, we affirmed the trial court's findings of all four termination criteria as to A.S. H.F., supra, slip op. at 33-35. We also sustained the court's findings concerning H.F. as to statutory prong three (the Division's provision of reasonable services and the adequate consideration of placement alternatives). Id. at 36; see also N.J.S.A. 30:4C-15.1(a)(3). However, we remanded the matter for further consideration as to H.F. concerning prongs one (the parent's endangerment of the child's safety, health, or development), two (unwillingness or inability to eliminate the harm facing the child), and four (the "best interests" test addressing whether termination will do the child more harm than good). H.F., supra, slip op. at 36-41; N.J.S.A. 30:4C-15.1(a)(1)-(2), (4).
A major reason that we remanded this matter to the trial court a second time in December 2011 was Alice's apparent vacillation about whether she, in fact, wished to live with H.F. and continue a relationship with him. Given the child's unanticipated statements in the first remand, we stated that we "cannot in good conscience finalize the analysis of Alice's best interests and permanently terminate the father's parental rights without the trial court more fully exploring her attitude toward and relationship with her father." H.F., supra, slip op. at 39. In that same vein, we also requested the trial court to develop the record further concerning Alice's mental health status and the Division's contention that she had been diagnosed with developmental delays after the 2010 trial. Id. at 39-40. In addition, we requested the trial court to provide "a more detailed analysis" of the first and second prongs of the termination statute. Id. at 38. We specifically authorized the trial court, in its discretion, to consider additional lay and expert testimony on the second remand. Id. at 40.
B.
The second remand hearing took place on April 23 and 24, 2012. The Division elicited lay testimony from Jessica Valentin, a case worker, and expert testimony from a psychologist, Jason S. Fleming, Psy.D., who had previously testified at the 2010 trial. Dr. Fleming's updated report was admitted into evidence. The Law Guardian provided expert testimony from another psychologist, Alice Nadelman, Ph.D., whose report was also admitted into evidence. H.F. did not elicit testimony from any lay or expert witnesses at the second remand hearing.
There is no indication that either the Division or the Law Guardian sought any interim relief from the Supreme Court concerning our December 2011 opinion directing the second remand.
1.
Dr. Fleming's report contained a renewed psychological and bonding evaluation, following sessions that took place in March 2012, when Alice was nine years old. His evaluations were based on: observation of interactions between H.F. and Alice; an individual interview with H.F.; psychological test results from H.F.; an individual interview with Alice; observation of interactions between Alice, H.G. (the foster mother), and T.C. (the foster father); an interview with H.G. and T.C.; and a review of additional Division background information, including this court's prior ruling from December 2011 and a psychological assessment of Alice previously performed by Lynn Douglass, Ph.D.
Having recently observed the interactions between H.F. and Alice, Dr. Fleming offered several insights in his updated report. He noted that as H.F. and Alice played together, Alice "warmed to her father as time progressed[.]" However, Dr. Fleming found it "interesting that she did not begin to do so until [H.F.] made reference to buying her something." Dr. Fleming did acknowledge that H.F. "made the effort to connect more with his daughter." Even so, as in the past, Alice "clear[ly] dictated the extent to which they connected emotionally during the observation session."
During his interview with H.F., Dr. Fleming noted that H.F. "enjoyed his opportunities to visit with his daughter . . . [and h]e believed that the visits had been giving them the opportunity to grow closer." H.F. informed Dr. Fleming that he was living in a one-bedroom apartment with A.S. because "she need[ed] a place to stay." However, H.F. stated that A.S. would have to leave if Alice were placed in his care. H.F. also told Dr. Fleming that he was working hard to improve the quality of life for himself and his daughter, and that he has not used drugs in recent years.
A.S. did not petition the Supreme Court for certification to review the termination of her own parental rights, which we affirmed in our December 2011 opinion.
Taking these additional matters into account, Dr. Fleming concluded that "[d]espite the approximate[ly two] years since my last contact with [the parties] regarding this case[,] my findings are largely unchanged." Dr. Fleming stated that he continued to support the Division's goal, and the trial court's prior ruling, to terminate H.F.'s parental rights. Based on his updated analysis, Dr. Fleming also noted two additional concerns.
First, Dr. Fleming expressed concern that A.S. had begun residing with H.F., which he believes was "significantly clouding [Alice's] perception about what more contact with her father and perhaps living with him will look like." According to Dr. Fleming, "[Alice], in her own words to me, appears to be under the impression that having a relationship with her father will mean having more of a relationship with her mother. This is simply not accurate but it may be part of the basis for why she suggests she wants to have more contact with her father." Although Dr. Fleming acknowledged that the relationship between H.F. and Alice had improved over the years, the doctor opined that the relationship "continues to appear distant, secondary, and in my opinion is largely influenced by what he may be able to provide her[:] gifts, toys, other tangible items . . . includ[ing] access to her birth mother[.]"
Dr. Fleming perceived that H.F.'s intentions are good. Nevertheless, he found that Alice's "real connection, however strained, is with her birth mother and that [H.F.] primarily represents [Alice's] only connection to her." On this point, Dr. Fleming concluded that Alice lacked a "clear perception of what spending more time with her father or perhaps living with him will actually mean." He added that "placing [Alice] in her father's care under the assumptions or fantasy that she appears to have will inevitably be harmful to her."
Dr. Fleming's second new concern focused upon "the extent to which [Alice's] relationship with her half-brother . . . and her foster parents w[ould] be severed" if she left the foster parents' care. He cautioned that Alice has difficulty "conceptualizing the personal and emotional impact of her removal from her foster parents' care," asserting that her relationship with her foster family "represent[s] the most consistent, stable and nurturing figures in her life."
Dr. Fleming concluded in his post-remand report that "[Alice] w[ould] suffer harm as a result of severing her relationship with her foster parents" with whom "she has appeared to thrive [through] their care." He stated that he supports a continued positive relationship with her father but does not believe it is in her best interests to be removed from her current placement and placed in his primary care.
In his testimony at the remand hearing, Dr. Fleming presented substantially the same opinions that had been reflected in his updated report. He confirmed his earlier observation that, before the Division's involvement, H.F.'s contact with Alice was "sporadic," contrary to H.F.'s claim that the contact was more frequent and consistent. If H.F.'s statements with regard to "daily contact and even frequent prior contact" were true, Dr. Fleming would have expected to see "a more positive relationship." As Dr. Fleming put it, "Unfortunately[,] that's not what I observed. I observed . . . [Alice] very dismissive, disengaged, . . . [and] not interested in initiating contact with . . . her father." Dr. Fleming also noted the limited amount of eye contact between Alice and H.F., which he found was indicative of "a degree of anxiety[.]"
With respect to Alice's interactions with her foster parents, Dr. Fleming testified that their interactions in 2012 were not significantly different from his prior observations. However, he underscored that there was more of an "engaging quality to [Alice] with [her foster parents]."
Dr. Fleming recognized that H.F. "wants to enlist all the efforts and supports possible. And . . . there's no evidence to suggest that he's . . . been physically harmful to his child or children." However, upon weighing that recognition against the other factors in this case, his opinion is that H.F. is "not capable of parenting [Alice] at this point in time." Dr. Fleming predicted that Alice's removal from her foster caretakers and placement in the primary care of her father would "have a very . . . immediate result of . . . emotional harm for her."
Dr. Fleming elaborated that he believes Alice is "emotionally connected . . . to [her foster family] in a way that is more grounded in the reality. . . . [S]he's being cared for, they meet her need[s] on a day-to-day basis," as opposed to her "fantasy-like expectation that her mom will reenter the picture." He also opined that Alice's "attachment is weak" with her father. Dr. Fleming expressed his belief that if Alice were to be placed with H.F. at this time, there would be "a negative . . . and harmful [impact] . . . because . . . her impression of what that would look like . . . is not born in reality." Dr. Fleming also perceived that the harm would be "serious and enduring," because "[H.F.'s] relationship with [Alice], is not suggestive of him being a very good figure to help in that mitigation process."
Dr. Fleming acknowledged a "possibility" that Alice could suffer harm from the termination of H.F.'s parental rights, but nevertheless deemed her foster parents "capable . . . as they have been for this time capable[,] of mitigating the harm that she would suffer." According to Dr. Fleming, even if there were to be no future contact between Alice and her biological parents, it would not change his opinion. The expert further stated that Alice's foster parents were her "psychological parents," and that they are "clearly the primary psychological and emotional figures in her life."
On cross-examination, Dr. Fleming stated that even if H.F. were to be able to financially provide for Alice "the emotional relationship that [H.F.] has with [Alice] and that she has with him . . . threatens [her current] stability." When pressed about whether H.F. might be able to improve his emotional attachment to Alice if given the opportunity to visit her more than once a month, Dr. Fleming accepted that is "a possibility" but that there also would be "a possibility that the bond doesn't improve[.]" Consequently, Dr. Fleming reasoned that "allowing more time [for] . . . the limbo status," in which Alice is "stuck in the middle and going to court," and "having all these evaluations," would be "likely to have more of a detrimental effect in this case if we continue that."
2.
The Law Guardian's expert on remand, Dr. Nadelman, derived her evaluation from over nine hours with Alice, including observations of her with her foster family and H.F. These contacts led Dr. Nadelman to make numerous findings and recommendations. In many respects, those findings replicated Dr. Fleming findings.
Dr. Nadelman noted in her report that Alice has "clearly identifiable problem areas and special needs." According to the report, Alice has been classified by her Child Study Team as requiring Special Education Services, despite good intelligence and academic achievement. Alice has been diagnosed with ADHD, Reactive Attachment Disorder, and Central Processing Disorder by a neuro-developmental pediatrician. Although these special needs were not initially made known to the court during the 2010 guardianship trial, Dr. Nadelman found it significant that Alice's foster parents have been working with her to help her learn and improve her skills, obtain evaluations and services to remediate her disability, and provide "need-meeting" care.
According to Dr. Nadelman, Alice made it very clear to her that she wants to be adopted by her foster parents and remain with them. Alice described to Dr. Nadelman that leaving her foster parents would be like "ripping pages from a book and putting them into another book."
Moreover, Dr. Nadelman found that H.F. did not demonstrate having adequate psychological resources to function as a safe and appropriate single parent to his daughter. In particular, Dr. Nadelman noted that H.F. was still on probation and had been recently arrested overnight for driving on a suspended license. According to Dr. Nadelman, these absences "would have presented serious risks to [Alice] if she had been in her father's care."
Dr. Nadelman also found significant that H.F. did not initially accept responsibility for getting A.S. pregnant and that he even blamed her for lying about her age. Dr. Nadelman also noted that H.F. did not make sufficient efforts to provide any type of help or support for A.S. after Alice was born. She considered H.F.'s efforts to step in during the previous two years as "too little, too late, to enable him to function as an adequate single parent to [Alice]." She also noted that he has continued to miss or not confirm some of his visits, and at times has not been reachable.
According to Dr. Nadelman, H.F., even recently, "has still not been a consistent presence in [Alice's] life." Despite the efforts that H.F. has made, Dr. Nadelman opined that he has "primarily been a visiting father to all of his children." In her expert estimation, H.F. has "never been a full part of [Alice's] life and has never parented or supported her," except for the few months that she stayed with him in Michigan.
Dr. Nadelman noted in her report that Alice showed a stronger and more secure attachment to her foster parents. By comparison, she labeled Alice's attachment to her father as "insecure" and "ambivalent."
Dr. Nadelman's report concluded that:
It is the essential conclusion of this evaluation . . . that it would be in [Alice's] best interest, in terms of safety, well-being and permanence, to remain with and be adopted by her foster parents. [Alice] would not experience more harm than good if she had no contact or only infrequent contact with her biological father. [Alice] has continued to make progress since her mother's parental rights were terminated in 2010 and can be expected to make ongoing progress even without contact with her father. Whatever sadness or other feelings [Alice] might experience if she does not see her father can be dealt with adequately by her foster parents who have consistently demonstrated their ability to recognize and meet her needs. The above conclusions are provided within a reasonable degree of psychological certainty.
[Emphasis added.]
Like Dr. Fleming, Dr. Nadelman's testimony at the remand hearing was consistent with the conclusions and recommendations that she had expressed in her pre-hearing written report.
Dr. Nadelman noted in her testimony that she found the child study team evaluation and two neurodevelopmental evaluations of Alice, which were all performed after trial, to be "particularly helpful" in reaching her conclusions. According to Dr. Nadelman, "those evaluations determined that [Alice] was eligible for an educational classification" and "specifically documented . . . the weaknesses, the special problems[,] and the special needs that [Alice] has as a classified child."
Dr. Nadelman also advised the court that she had given Alice an anxiety test and a depression test, and also relied on a behavioral test filled out by Alice's teacher. Dr. Nadelman's impression from this clinical testing was that "there's no question that [Alice] is a youngster with special needs and special problems." According to Dr. Nadelman, Alice "requires more than just adequate parenting, because she needs . . . services to help her with her A.D.H.D., her social interaction, her processing issues and her communication issues." Dr. Nadelman added that, although Alice had been in a stable nurturing home for four years, "she still hasn't had permanence." Consequently, Alice "worries about" being uprooted again. Although Dr. Nadelman described the prognosis for Alice as "positive," the expert stated that "there's no question that [Alice] needs continued services and she needs stability and above all she needs safety and predictability."
As to her bonding evaluation of Alice with H.F., Dr. Nadelman acknowledged in her testimony that they had "a positive interaction" that was "consistent with the role that [Alice's] father has had in her life over the past five years." The expert described that role as "a visiting dad, not a primary caregiver, which he has not been." Dr. Nadelman concluded from her evaluation that Alice "likes her father. . . . But she doesn't have a parent/child relationship with him." According to Dr. Nadelman, Alice's attachment to H.F. is "understandably insecure and ambivalent . . . because she knows that he wants to take her away from the most stable and secure home that she's ever ha[d] . . . in her life[.]"
Dr. Nadelman explained that the critical time in the development of Alice and H.F.'s relationship occurred in October 2007, when the Division removed Alice from A.S. but H.F. was not able to take Alice himself. According to Dr. Nadelman, "this whole situation could have been completely different" if H.F. had been able to assure Alice's care at that time because "[t]hat was the opportunity that he had had to . . . become the primary caregiver for his child, a role that he has not had for any of his children." As a result of H.F.'s inability, however, Alice went into foster care. Eventually it was her foster mother who, as Dr. Nadelman characterized it, "stepped up." Dr. Nadelman noted that the foster mother "got the training and the certification that she needed to become a foster parent for [Alice] and has raised her ever since."
According to Dr Nadelman, H.F. told her that given his long hours and school obligations, H.F. would need to rely on friends, his mother, and his sister to help him care for Alice. Dr. Nadelman opined that such multiple caretakers:
would not be a good plan [for Alice]. It would not be an appropriate plan for a child who has lived through what [Alice] has lived through and has been identified as still showing some features of post-traumatic stress, as well as her . . . social difficulties and her processing difficulty.Dr. Nadelman added:
[Alice] needs a great deal of stability and consistency . . . which multiple care givers, however well meaning, would not be able to provide. Especially if they came and went depending on their relationship with [H.F.]. And . . . he reported that the two people who . . . he would want to count on the most . . . one was his mother. And . . . she had a record with [the Division]. He said he had never seen . . . evidence, and he questioned it. But he was aware that she had been ruled out as a caregiver because of her previous involvement with [the Division].Dr. Nadelman concluded that, "within a reasonable degree of psychological certainty, despite his express good intentions[,] [H.F.] would not be able to provide a level of appropriate parenting that would . . . meet [Alice's] needs."
By comparison, Dr. Nadelman's testimony noted that Alice's foster parents "showed awareness of her needs, they offered help when it was appropriate" and "there was a higher level of familiarity and connectedness, which is what you would expect for a child who has lived with a family for four years." There was also a strong sibling attachment with her half-brother, M.P. Dr. Nadelman described the foster family as Alice's "psychological family," noting that:
[Alice] has a secure bond in knowing that [her foster parents] have [done] everything that they can to be good parents to her, and to keep her safe and to take care of her. And that . . . she trusts them, as much as she can trust anybody. This is the child who shows impaired trust and . . . they are the people to whom she looks to meet her needs and to take care of her and to keep her safe.
Dr. Nadelman concluded that H.F. would not be able to ameliorate the harm caused by Alice's separation from her foster family because of "the elements of instability in his own situation and the degree to which he would have to rely on other people to help him." According to Dr. Nadelman, "[t]he level of care that [Alice] would get if she were returned to her father would not be . . . adequate to meet her needs. And that's really the primary factor in ameliorating the harm of a separation and . . . a loss."
On cross examination, Dr. Nadelman acknowledged that H.F. was "very aware of and respectful of [Alice's] attachment" to her foster family, and that he told Dr. Nadelman that he would "never do anything to keep [Alice] away from . . . all three of them." Even so, Dr. Nadelman maintained that H.F. has not shown that he has the "awareness," "capacity," or "training" to meet Alice's needs, and "[h]e's never functioned as a full [time] single father, as a primary caregiver[,] let alone for a child with special needs." Dr. Nadelman acknowledged that H.F. has evidenced his love for Alice by going through multiple court proceedings and continuing visitation. Nevertheless, "[t]here is a concern about [his] timing" when it comes to doing whatever he can to be her father. Specifically, Dr. Nadelman faulted H.F.'s delay in offering to serve as Alice's primary caretaker.
Dr. Nadelman further explained on cross-examination that a parent of a special needs child like Alice needs "a higher than average level of availability, consistency, recognition of special needs and . . . time and resources to do what has to be done at home, as well as making sure that she receives the services that she needs." In Dr. Nadelman's opinion, the first level of harm was when H.F. left A.S. behind when she was pregnant. The second level of harm was H.F.'s inability to give Alice what she needed in 2007 when the Division removed her from A.S.
3.
Valentin, the Division's caseworker who testified at the second remand hearing, stated that when she assumed that responsibility in this matter, Alice and H.F.'s visitations were limited to supervised monthly contacts at local restaurants, a mall, or a bowling alley. Valentin testified specifically about observing a visit in October 2011 at a restaurant. Although that visit went well initially, Alice eventually asked for the visit to end early because she was tired and wanted to go home. Valentin further reported that, during one visit with Alice, H.F. had made a "very big scene" and that he "started cursing at the [Division's observer]."
C.
After considering these proofs from the second remand hearing, the trial judge issued a supplemental oral decision on April 24, 2012. The judge began his opinion by noting that after reviewing his notes from the prior hearings in 2010 and 2011 and listening to the new testimony, "nothing that I heard changed my original opinion, if anything it served to convince me that my determination back in June of 2010 was accurate and appropriate. . . . [A]lthough some factors have become clearer, they essentially don't change what I found."
With respect to H.F.'s relationship with Alice, the judge noted that "[w]hat has been amplified for me in this [second remand] proceeding, that maybe I didn't either recall or accentuate in the first [trial], was that [H.F.] was aware of the birth mother's pregnancy when he left for Michigan." The judge continued to find it significant that there was "no further contact between the birth mother and [H.F.] and the child from the time she was born until . . . 2006," when A.S. and Alice went to Michigan to reside temporarily with H.F.
The judge then addressed the relationship that H.F. began with Alice after he returned to New Jersey in 2007:
[H]ow much contact [H.F. had with Alice] has really been called into question. . . . [H]e said he had a lot of contact with her. [That t]hey were living together for a period of time. This time I get the impression that that may not have been so, and in fact the contact was, if anything[,] sporadic . . . [F]rom my evaluation [there was] a minimal time for [H.F.] and [Alice] to develop a relationship. To the point where in 2007 [H.F.] is incarcerated for a period of time . . . [he] has no contact with the child, other than maybe a visitation with her. And in 2008 the Division is involved and is now with custody of the child, having to have her placed outside of the home. And at best [H.F.'s] involvement at that point is he proposes his mother as a custodian for [Alice], not himself.The judge also found it significant that "at no time has [H.F.] been a caregiver for [Alice]. He has never had the day to day responsibility of caring for this child, and that's clear." The judge also emphasized that when the Division was looking to place Alice in 2008, H.F. was not able to take her.
[Emphasis added.]
Referring to the first prong of N.J.S.A. 30:4C-15.2(a)(1), the judge noted that "at the time [Alice] is removed from her mother there is no parental relationship between [Alice] and [H.F.]. They know about each other. They've had contact with each other. She is aware by 2008 that this is her father. But that's not a parental relationship." The judge found it to be "a significant injury to [Alice] that she must learn at this [late] time that . . . her father exists. . . . That's an injury. That's a harm."
With respect to prong two, the judge found the new testimony "competent and clear and convincing" that the harm still exists. The judge noted that "the only thing . . . [H.F.] has solved for himself is housing. [He s]till doesn't have a full-time job. . . . And there is no identifiable plan to solve the problem, other than [']she's my daughter, I want her, I'll take care of her.[']"
The judge then analyzed the expert opinions from the 2010 trial proceedings and the second remand proceedings. The judge had discredited H.F.'s expert from the 2010 trial, Ronald G. Silikovitz, Ph.D., because Dr. Silikovitz "didn't have the ability or had not compared [H.F.'s] ability to parent, vis-à-vis the foster parents." Specifically, the judge discredited Dr. Silikovitz's conclusion that H.F. has the capability to parent because that defense expert had "no opinion with regard to [Alice's] living with the foster parents because he never examined that portion of [Alice's] life to have the ability to contrast and compare the two lifestyles."
On the other hand, the judge accepted the expert opinions that he heard from Dr. Fleming and Dr. Nadelman at the second remand hearing. Although these experts, as the judge found, "get there by different methods," they each bolstered the Division's contention that H.F. is "unable to competently and adequately parent [Alice]." The judge recognized that H.F. is not "unwilling" to parent Alice. Nevertheless, the judge found that H.F. "doesn't have the wherewithal to make it happen." According to the judge, this conclusion is "clear" from the testifying experts, written reports, and courtroom testimony.
As to prong four, the judge reaffirmed the reasons for termination that he had placed on the record after the 2010 trial. The judge noted that new developments that were brought out at the second remand hearing solidified his prior decision that terminating H.F.'s parental rights will not do more harm than good. The judge pointed to the fact that Alice has now been "classified in school [as having special needs]," a development that the judge found "rather disturbing." Although there were indications of such special needs at the 2010 trial, the judge now regarded their presence as "definitive."
The judge further noted that "[t]he other thing that's new since the last time we were together is that [Alice] has continued to have contact with her father. And that leads me to my next problem. . . . [W]hat does [Alice] want? She['s] old enough to express it." He noted that "before our last proceeding back in 2010 . . . she threw me a curve . . . [and] indicated to me at that time that she did want to have a relationship with her father, that qu[ite] possibly she wanted to live with him." However, the judge noted "[n]ow, I find out that she's changed her position again" and "that while she continues to have contact with her father . . . she's pretty good right where she is."
The judge found the expert assessments of Dr. Fleming and Dr. Nadelman to both be compelling. The judge paraphrased Dr. Fleming's opinion as expressing that "[Alice is] still too young to appreciate all the problems. And we have to do for [Alice] what is right for [Alice], sometimes in spite of what she wants." The judge likewise credited Dr. Nadelman's analysis. The judge agreed with Dr. Nadelman's observation that Alice may be under the mistaken belief that "a reunification with [H.F.] would be a reunification with her mother," who was currently living with H.F. In fact, he noted that "obviously a reunification with her mother is not possible." Indeed, the judge noted that "H.F. acknowledges that if in fact [Alice] were to come back to him . . . [A.S.] can't live with him[.]" In sum, the judge observed that "[t]he reality is [that H.F.] still is not capable of adequately parenting this child."
The judge concluded:
Both of the experts who testified before me this time, came to the conclusion that really, pretty much no matter what I do, [Alice] will be harmed in some manner or some fashion and to some extent and I agree with them. Although I don't think [Alice] has a parental relationship with her father, I do think she does have a relationship with him. One that she's become very comfortable with. One that, I'm sure, at some point she finds very comfortable and to her benefit mostly. But that's all it is. It's not a parental relationship. It's a relationship. They know each other. They're comfortable in each other's presence. And the . . . greater, more significant relationship that will be harmed by removing [Alice] from her current placement is such that it militates against moving her.
So, in analyzing what I've heard before . . . [and] what I've heard in the last two days giving credibility to that to which I find to be credible, it is still the opinion of this [c]ourt, that [H.F.s] parental rights to [Alice] will be terminated.
[Emphasis added.]
II.
In his renewed appeal, H.F. argues that the trial court erred in finding that prongs one, two, and four of the termination statute were proven by clear and convincing evidence. See N.J.S.A. 30:40-15.1(a). As to the first two prongs, H.F. asserts that his delay in offering himself as a caretaker for Alice cannot be the sole basis for finding that he had harmed her and would be unable to eliminate the harm in the future. In addition, H.F. contests the trial judge's findings that H.F. lacked a sufficient parental relationship with Alice, and that he is unfit to parent her. As to prong four, H.F. challenges the trial court's assessment that Alice's best interests are served by termination, claiming that the judge gave undue weight to Alice's most recent statement of her preferences.
H.F. also contests the judge's reliance on the expert testimony of Dr. Nadelman, and claims that greater weight should have been given to the opinion of Dr. Fleming, who allegedly was more open to Alice's hypothetical placement with H.F. if she were allowed to maintain relationships with her foster parents and half-brother. In a supplemental post-argument letter brief, H.F. further contends that the trial judge unfairly penalized him for not testifying or presenting any witnesses at the 2012 remand hearing. The Division and the Law Guardian each oppose these arguments, and urge that we sustain the final judgment ordering termination.
We have also considered responsive letter briefs on that issue from the Division and the Law Guardian.
In reviewing H.F.'s contentions, we remain mindful that, subject to the "State's parens patriae responsibility to protect the welfare of children," In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002), parents presumptively "have a fundamental constitutional right to enjoy a relationship with and raise their children." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 608 (App. Div.) (citing In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999)), certif. denied, 192 N.J. 68 (2007). Indeed, the second remand we ordered in December 2011 reflected our appreciation for the importance of H.F.'s presumptive right to parent his daughter. We also must be cognizant of our limited scope of review of the trial court's assessment of the lay and expert testimony presented, and the Family Court's "broad discretion" and "specialized knowledge and experience" in such matters. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 427 (2012).
Applying these considerations, our initial reservations about the Division's fulfillment of prongs one, two, and four, which prompted the second remand, have now been sufficiently addressed. We affirm the trial court's renewed entry of final judgment terminating H.F.'s parental rights, substantially for the amplified reasons orally placed on the record by the trial judge on April 24, 2012. We add several comments.
With respect to prongs one and two of the statute, we are now satisfied that the record establishes them sufficiently, particularly in light of the trial judge's amplified explanation of his analysis and the additional proofs adduced at the second remand hearing. We disagree with H.F. that the judge improperly considered his delay in offering to care for Alice, or that the delay "alone" was the sole basis for the judge's adverse findings.
The Supreme Court has recognized that "emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) (emphasis added). Furthermore, "[r]ather than focusing on a single or isolated harm, the standard may be triggered by an accumulation of harms over time." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506-07 (2004)).
Whether the action or inaction of the parent has harmed the child can also be considered in relation to the bond that the child has attained with his or her foster family. See In re Guardianship of J.C., 129 N.J. 1, 27 (1992) (noting that "prolonged inattention by natural parents that permits the development of disproportionately stronger ties between a child and foster parents may lead to a bonding relationship the severing of which would cause profound harm").
In New Jersey Division of Youth and Family Services v. B.G.S., 291 N.J. Super. 582, 591-92 (App. Div. 1996), we affirmed a trial court's finding that harm had been shown when a mother failed "adequately to care for . . . and to protect" her son, such that the son "is subject to continued psychological damage because of his need for a permanent home and identity." We held that "[e]vidence of serious emotional injury and developmental delay satisfies [the first] prong." Ibid. We also noted that "harms attributable to a biological parent include the prolonged inattention to a child's needs, which encourages the development of a stronger, 'bonding relationship' to foster parents, 'the severing of which would cause profound harm[.]'" Id. at 592 (emphasis added) (quoting In re J.C., supra, 129 N.J. at 18). In that case, much like this one, "[t]he experts agreed that [the son] had bonded with his foster family and would suffer serious, long-term psychological harm if removed form the foster home." Ibid.
The Supreme Court has also noted that "[t]he lack of a permanent, safe, and stable home" can "engender[] significant harm" to a child. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Like the present case, in D.M.H., the child had developed "special needs" as a result of "instability and lack of adequate care." Id. at 380. The Court noted it has stressed that:
[T]he attention and concern of a caring family is the most precious of all resources . . . these children have been denied this precious resource by their biological parents for many years. A parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endanger the health and development of the child."
[Id. at 379 (emphasis added) (internal citations omitted) (internal quotation marks omitted).]
In light of the expanded record developed at the 2012 remand hearing and the applicable law, the trial court's affirmative findings with respect to prongs one and two are amply supported by the evidence.
On the second remand, the trial judge expressed his finding — which was consistent with the testimony of both testifying experts — that as a result of H.F.'s delayed involvement in Alice's life "there is no parental relationship between [Alice] and [H.F.]." For almost her first four years, the judge noted that H.F. did not have "any connection to [Alice]." As a result of H.F.'s absence during the first part of Alice's life, and what the judge fairly characterized as his "sporadic" subsequent contact, the judge stated "there was, from my evaluation[,] a minimal time for him and [Alice] to develop a relationship" and his relationship with her has "never been in the attitude of being [a] significant caregiver."
We recognize H.F.'s claim that his contacts with Alice were more frequent than sporadic, the credibility of which was undermined by the contrary impressions of Dr. Fleming.
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The judge also noted that he found it "disturbing" that it has now "been set forth" in the record that Alice has been classified in school as requiring special needs. The experts in this case agree that H.F.'s initial prolonged absence from Alice's life, and his subsequent inability to care for her when the Division first became involved, evidently contributed to Alice's developmental challenges, which are amplified by her special needs. Both experts discussed how Alice is finally in a stable home and having her developmental needs met after a turbulent childhood. And as Dr. Nadelman's report explained, Alice requires "a high degree of safety, protection, stability and consistency to make continued developmental progress and avoid significant regression."
Finally, as in J.C., supra, and B.G.S., supra, the judge appropriately considered the impact of H.F.'s inaction in relation to the subsequent relationship that developed between Alice and her foster family. Although "[Alice] does have a relationship with [H.F.]," the judge found that "[i]t's not a parental relationship." (Emphasis added). Instead, "the greater, more significant relationship" is with Alice's "current placement," and the harm that would result "by removing [Alice] . . . is such that it militates against moving her." These findings were also consistent with the testifying experts' testimony and reports. They are also consistent with, as Dr. Nadelman related, Alice's own perception that removing her at this juncture from her foster parents' care would be akin to "ripping pages from a book and putting them into another book."
The circumstances in this case also seem distinguishable in important ways from I.S., supra, 202 N.J. 145. In I.S., the Court held that "the assertion that simply because defendant delayed eight months in offering himself as his child's caregiver caused 'harm' to a then-sixteen-month-old child is unsustainable." Id. at 170. The Court held that "logic and common sense therefore demand that, in order to justify a termination of parental rights, something more than the delay presented here is required[.]" Id. at 171 (emphasis added). That "something more" was sufficiently established here.
Notably, the child in I.S. was only sixteen months old when the defendant father offered himself as the caregiver and the father had only delayed eight months from the date when paternity was established. Id. at 186. In I.S., there had also been expert testimony stating that the child had bonded with his foster parents, but there was no indication that the child, unlike Alice here, had special needs. Taken together, the harm that the son in I.S. faced amounted to sixteen months without his father as a primary caregiver, as well as the threat posed by the emotional bond that had formed with his foster parents who had taken him in when he was two months old. Comparatively, Alice has gone ten years without a "parental relationship" with H.F. and has never had her father as her primary caregiver. According to Dr. Nadelman, her unstable and tumultuous childhood has also led to "attachment issues" and "emotional problems" which presents a challenge to addressing Alice's special needs.
Despite the fact that H.F. has had contact with Alice for multiple years, which has varied over time from "sporadic" to more consistent, both experts testified that Alice does not have a strong emotional attachment to him and that she would face a substantial harm if severed from her foster family. Furthermore, Alice's foster family has offered her stability after years of being without it, compared to the two-month period of instability that the son in I.S. faced before being placed with his foster family. The judge in this case also had a sound evidential basis for concluding that H.F. has not provided an "identifiable plan" to solve this Alice's ongoing problems.
We are also satisfied at this juncture, despite our previous concerns in December 2011, that the Division has adequately proven the statute's fourth "best interests" prong. Alice has reverted from her statement at the first remand hearing in September 2011, and more recently has expressed a desire to remain with her foster family and her half-sibling. Dr. Nadelman and Dr. Fleming both sufficiently explained why Alice, a special needs child, has made inconsistent expressions of her wishes. Dr. Nadelman explained Alice's concern about being removed from her foster family; while Dr. Fleming expressed his belief that Alice viewed H.F. as a potential means to have contact with her mother, whose parental rights already have been terminated.
We also do not regard Dr. Fleming's testimony or report as a recommendation that H.F. should be allowed to care for Alice so long as he ensues continued contact with her foster family. The unequivocal conclusion of Dr. Fleming's testimony was that termination of H.F.'s parental rights will not do Alice more harm than good. Given the extensive additional expert testimony presented at the second remand hearing, we now have sufficient confidence in the trial court's amplified decision to sustain the finding on prong four.
Lastly, we reject H.F.'s contention that the trial judge unfairly penalized him for not testifying or offering responsive proof at the second remand hearing. We do not construe the judge's various comments during the hearing and in his bench ruling about the unrebutted testimony from Dr. Fleming and Dr. Nadelman, when taken as a whole, to signify that the judge improperly shifted the burden of proof from the Division to the defense. The cases cited in H.F.'s post-argument supplemental brief in support of a defendant parent's right to decline to testify and to put the government to its proofs, see, e.g., N.J. Division of Youth & Family Services v. J.L., 400 N.J. Super. 454, 470 (App. Div. 2008), are therefore inapposite.
The trial court's final judgment of guardianship terminating H.F.'s parental rights is therefore affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION