Opinion
DOCKET NO. A-2119-11T4
04-21-2014
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. Y.R., Defendant-Respondent, and A.M., Sr., Defendant-Appellant. IN THE MATTER OF A.M., A.M., Jr., and D.M., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Gregory K. Byrd, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent Y.R. (Angelo G. Garubo, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.M. and A.M., Jr. (David Valentin, Assistant Deputy Public Defender, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.M. (Caitlin McLaughlin, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Ostrer and Carroll.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-440-07.
Joseph E. Krakora, Public Defender, attorney for appellant (Gregory K. Byrd, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent Y.R. (Angelo G. Garubo, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.M. and A.M., Jr. (David Valentin, Assistant Deputy Public Defender, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.M. (Caitlin McLaughlin, Designated Counsel, on the brief). PER CURIAM
Defendant A.M., Sr., the father of A.M. (Amy), born August 1995, A.M., Jr. (Andrew), born May 1998, and D.M. (David), born October 2000, appeals from the September 12, 2011 dispositional order placing his children with their mother, Y.R. (Yolanda). See N.J.S.A. 9:6-8.45. Defendant also challenges the court's 2008 finding that he engaged in conduct which made the children abused and neglected within the meaning of Title 9, N.J.S.A. 9:6-8.21 to -8.73. We do not agree the court erred and, therefore, affirm.
For the sake of anonymity, we use fictitious names for the parties.
--------
The family has a lengthy history with plaintiff New Jersey Division of Youth and Family Services (the Division). We recount only the circumstances since 2006 relevant to this appeal. In May 2006, after Yolanda and defendant had separated and she had moved to Philadelphia, an unsubstantiated report was investigated by the Division that defendant, with whom the children resided, had sexually molested Amy. The Division subsequently maintained contact with the family.
In December 2006, a Division worker observed a red mark and scratches beneath David's eye, which defendant eventually admitted he caused by striking the child in the face with a leather belt. In January 2007, David, who was then six years old, was expelled from school because he engaged in inappropriate sexual conduct with another child. Because of these incidents, and the suggestion that the children had been exposed to domestic violence in the home before the parents separated, the Division arranged for all the children to be evaluated, beginning with David. After interviewing them, Annette Borenstein, Psy.D., issued a February 9, 2007 report.
Amy told Borenstein that before David was expelled from school, she tried to tell defendant about David's inappropriate sexual behaviors. Defendant ignored her. Borenstein therefore recommended that he too be psychologically evaluated "in order to assess his judgment and parenting skills." Borenstein also recommended that defendant become involved in individual counselling and be referred to a parenting skills class, one of several in which defendant enrolled during the years these proceedings were pending.
Defendant was unemployed at the time, and claimed to be applying for Social Security benefits for an unspecified disability. Defendant's work status over time is unclear. At the dispositional hearing conducted in 2011, defendant acknowledged not working since 2002.
In any event, because of the December 6 incident, the family was referred to family preservation services. Defendant and the children were counselled individually and together for about a month, three to four times weekly for two-hour sessions.
Defendant took David to all the individual therapy meetings the Division scheduled, missing only two visits. He initially refused to allow the other two children to be psychologically evaluated, however. Nor did defendant take Andrew for the medical assessment the Division suggested even though Andrew's weight was markedly low and defendant himself had at times reported that he suffered from chronic serious digestive problems.
On May 30, 2007, the Family Part judge, after conducting the fact-finding hearing, concluded by a preponderance of the evidence that defendant "engage[d] in an act of abuse and neglect in failing to provide adequate medical and psychological care for his children pursuant to N.J.S.A. 9:6-8.21(c)(4)(a)."
The Division continued its involvement with the family. In June 2007, defendant submitted to a psychological evaluation by Bessie Duncan, Psy.D., who found him capable of caring for his children.
On August 15, 2007, David's therapist advised the Division that defendant's presence in the adjoining waiting room during therapy sessions made it difficult for David to express himself freely. The Division assumed responsibility for transporting the child.
On October 16, 2007, the children were removed from defendant's custody on an emergency basis because Amy disclosed to a Division worker that her father had again hit her with a belt, causing bruising on her left calf. Andrew then reported that defendant had hit him approximately a week prior with some unidentified object. Amy claimed all the children feared defendant because he hit them with objects such as shoes, belts, coat hangers, and wires. She and David said they wanted to live with their mother, and Amy said that if she could not, she would prefer to live with her maternal grandmother.
Amy later told the worker that defendant had also struck David in the back with a whiffle ball bat. The worker discovered a red mark on the child's back corroborating the story. Andrew said that defendant called him a "faggot," and told him to "stop being gay" when he complained about anything. As a result, the Division filed a complaint seeking legal custody of the children on October 19, 2007.
Defendant denied striking the children and claimed that the bruising and other marks resulted from their rough play. He also alleged, as he has throughout, that the children's mother encouraged them to lie about him. After the removal, the children spent a few days in foster care, and were then placed with the maternal grandmother. During this time, defendant's visitation was limited to supervised contact every other week.
When psychiatrically evaluated on November 21, 2007, defendant admitted striking Amy with a belt, claiming that he did not mean to hit her but was just trying to scare her. He also admitted "getting violent when he gets really upset, but nothing since being on medications (almost three years)." Defendant claimed that he had not used illegal drugs in years. He was found to have a fair prognosis as a parent if he remained compliant with Division recommendations, including parenting classes and anger management, submitted to urine screens for drug use, continued in counselling, and took his anti-anxiety medication.
The following month, Amy's therapist advised the Division that Amy was uncomfortable with defendant asking her about therapeutic sessions. David's therapist also reported that David was more open on the subject of his father since the Division began to transport him to sessions.
Defendant's supervised visits with the children went well and were increased by court order on April 10, 2008, to weekly sessions. Around that time, defendant's urine tested positive for marijuana.
Later that month, on April 25, 2008, David, then age eight, was admitted to a psychiatric inpatient facility because of aggressive and threatening conduct towards others. By June, Amy was progressing in therapy and discussing "various incidents" of physical abuse by her father towards her and her brothers. She would have preferred to live with her mother, but felt safe living with her grandmother.
Meanwhile, Yolanda requested that the children remain with her mother until she could find adequate housing in Philadelphia, where she lived with her paramour and a fourth child. Throughout, Yolanda has essentially complied with Division recommendations, albeit inconsistently at times.
On July 10, 2008, defendant submitted to a psychiatric evaluation with Ronald W. Crampton, M.D. Defendant disclosed a family history of alcohol abuse and serious mental illness, and acknowledged his own past drug usage. Crampton diagnosed defendant as having a personality disorder NOS, in addition to suffering from anxiety and depression. Crampton opined that defendant should not resume custody of his children unless he could formally document "consistent, regularly scheduled, qualified mental health services that includes active psychiatric participation . . . . [T]here must also be documented evidence of successful family therapy. The time frame for achievement of the treatment goals should be no less than six months." The report also notes, "[n]o decision on the ultimate disposition of the children should be finalized without a careful review and assessment of their mental health statuses. This will include a careful exploration of their thoughts and feelings regarding reunification. This documentation must not be left to conjecture but professionally and objectively determined."
During this time frame, Amy and Andrew continued to complain to their therapists that they were uncomfortable with visits from their father. Amy reiterated her account of defendant beating the children with objects. She also claimed defendant consumed alcohol to excess, and would take her to cock fights, which frightened her. Andrew did not want to see his father at all, while Amy, although uninterested in unsupervised visits, wanted at a minimum to reduce the number of visits, then scheduled every week.
In July 2008, defendant was ordered to submit to drug screens. The ensuing report noted he had some positive, and some "inconclusive" test results, meaning the samples were possibly adulterated.
That same month, Amy and Andrew's therapist recommended the children not be compelled to visit with their father. The contact was effectively retraumatizing them, and making therapeutic progress difficult.
Defendant's second psychiatric evaluation was completed just a few months after Crampton's evaluation, on September 18, 2008. Defendant was found capable of caring for his children so long as he continued on his medication and in weekly therapy, and complied with recommended services.
On October 2, 2008, defendant admitted during the course of a mandated permanency hearing that he struck all of his children in the past, and that his conduct was not appropriate. The court ordered that visitation incorporate the children's therapist's recommendations. As recommended, visitation was suspended.
Karen D. Wells, a licensed psychologist, thereafter conducted a bonding evaluation during which, contrary to his prior statements, defendant denied striking Amy in October 2007, claiming that he was merely tickling her and massaging her legs and that he must have accidentally bruised her calf by pushing too hard. Throughout this bonding session, the children's behavior "border[ed] on being aggressive and assaultive."
After defendant left, David told Wells that he did not want to live with his father, that he wanted to live with his mother. Andrew alleged that defendant would "whoop[]" the children every day. Amy did not want to live with defendant either.
Wells' report found the children to be bonded with defendant, but she opined that it was in their best interests to remain with their maternal grandmother. After David's release from the psychiatric hospital, he should be placed with his siblings, as the children were strongly bonded with each other. Wells noted that the children showed defendant little spontaneous affection, responding only to his direct requests.
Defendant saw the children only once or twice between September 2008 and June 2009, the month that he petitioned to resume therapeutic visits. The children did not want to see their father; nonetheless, visitation was ordered as part of a permanency plan. The following month, the court approved kinship legal guardianship with the maternal grandmother, to be followed by a placement with a parent. If discharged, David was to reside with his mother. Therapeutic visits commenced May 13, 2010.
By June 11, 2010, defendant and the children's mother were able to mediate an agreement for the summer. The agreement provided that Amy and Andrew reside with defendant during the week, and spend weekends with their mother. David would continue at his inpatient facility, visiting with his parents.
Because of communication and transportation problems, however, the summer arrangements failed. Additionally, the children objected to spending the majority of their time with defendant.
On August 19, 2010, custody was transferred to the children's mother, and defendant was granted unsupervised visitation on the weekends. We do not have a transcript of the proceeding which resulted in that order.
By October 2010, defendant stopped attending therapy with the children. Nonetheless, the children were adjusting well in their mother's home and continued in family and individual therapy. That winter, defendant moved to Puerto Rico for a time, which he claimed was necessary to settle his deceased father's affairs.
Eric Kirschner, a psychologist, conducted a second bonding evaluation on March 23, 2011. He found that the children were bonded with their mother, whom they viewed as their primary caregiver.
During the bonding evaluation, defendant blamed the children's fear of him on their mother, and explained his corporal punishment of them by saying "I'd act like I was gonna hit them but hold back. . . . I wanted them to be afraid that they'd be punished if they do something wrong." He was still attempting to collect disability, was unemployed, and living in a furnished room.
After defendant left the evaluation, the children complained that he was unreliable. Amy said that, despite feeling at times that her mother favored her brothers, she knew her mother could be trusted to provide for her, unlike her father. Andrew complained that, on occasion, when defendant would pick them up for visitation, he would then just drop them off at a relative's house. He too preferred to remain with his mother; there were problems, but overall, the relationship was good.
In contrast, David said that his father was "getting better," was not "mad anymore," and did not "scream." He acknowledged that his father occasionally simply failed to appear for visits, however, and wished that they could live with both of their parents. Kirschner concluded that the children had an "ambivalent attachment relationship" with their father, caused by his inconsistent behavior.
By June 14, 2011, defendant lacked adequate housing and had not seen the children for approximately two months. The children neither trusted him nor wanted to live with him, and were being appropriately cared for by their mother.
At the dispositional hearing on September 9, 2011, defendant testified that the children's mother had turned them against him. He also said that the most recent bonding evaluation could not be relied upon because it took place in an artificial setting in which the children did not display their normally affectionate and comfortable demeanor towards him. Defendant expressed doubt that the children's mother could effectively parent them.
Defendant acknowledged that for the past nine months, he had been living in a two-bedroom basement apartment that he shared with a male friend. He last worked in 2002, and subsisted on $400 from welfare and $200 in food stamps. Defendant had applied for disability a second time, and had $2400 in savings. Although he did not pay child support, he claimed that he sent the children money when they needed something, but could not recall how much he had given them in the last year.
Defendant also admitted that when the children spend overnights with him, they sleep together on his single bed. During the last visit, Amy had slept with him on the bed but it was unclear as to where the boys had slept. When asked about corporal punishment, defendant insisted that he only frightened the children with a belt, but had never actually struck them.
On appeal, defendant contends that:
I. THE TRIAL COURT'S FINDING OF ABUSE AND NEGLECT WAS NOT SUPPORTED BY THE EVIDENCE.
II. THE DIVISION WRONGFULLY REMOVED THE CHILDREN FROM A.M.'S CUSTODY.
III. THE TRIAL COURT'S FINDING AT THE DISPOSITIONAL HEARING WAS NOT SUPPORTED BY THE EVIDENCE.
I
We first review the court's ruling at the dispositional hearing. Pursuant to the statutory scheme, a court is required to hold a dispositional hearing after a finding of abuse or neglect. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 399 (2009). At that juncture, the question becomes whether the children can be safely returned to the care of the parent from whom they were removed, "or whether, consistent with N.J.S.A. 9:6-8.51, some other disposition is appropriate." Id. at 402. Contrary to defendant's contention, the law does not, however, require that unless there is an imminent risk to the child's life, safety or health, children be returned to the parent from whom they were removed. As the Court said in G.M., there are a host of alternatives that can be considered in a dispositional hearing. See id. at 399-400.
Even if defendant's interpretation of the law were correct, which it is not, that the trial judge was required to return the children to defendant so long as he did not pose an imminent threat, in our view, defendant did pose a risk of emotional and physical harm to the children. For example, in 2006, 2007, and 2008, defendant acknowledged striking his children, at times with belts. Yet at the trial in 2012, after participation in therapeutic services, defendant denied striking his children at all in contradiction of his earlier statements. This denial is more than somewhat problematic.
Instead of directly confronting his children's reluctance to live with him, while testifying defendant dismissed it as the product of their mother's manipulations. Instead of planning for his children's return, defendant at the time of the dispositional hearing was living in an apartment unsuitable for his children, and he had inadequate sleeping arrangements for overnight visitation. He had not consistently seen his children for some time prior to the hearing.
Despite being in straitened financial circumstances, defendant left the mainland over the winter of 2010-2011. Despite being unemployed and therefore having time in which to do so, defendant did not engage in the recommended counseling with the children. He refused because it was in Philadelphia and he saw it as too far from his home in New Jersey.
Be that as it may, the bonding evaluations established that the children felt safe and secure living with their mother, and were ambivalent in their feelings towards their father, whom they experienced as unreliable and unpredictable. All three children throughout have consistently said they preferred to live with their mother, and expressed at least some discomfort and apprehension about living with their father because of his conduct towards them.
These are children who have experienced real hardship in their family life. David is emotionally fragile and strongly bonded to his two siblings. To compel them to live with a parent whom they perceive as untrustworthy would be to inflict unwarranted emotional harm upon them. And given defendant's minimization of his physical assaults on the children, he poses a risk of physical harm as well.
Therefore, we agree with the trial court that it would not be safe to return the children to their father, despite the Division's efforts over the course of five years to reunify the family. At the dispositional hearing, defendant was granted joint legal custody, visitation on alternate weekends, and this sufficed. The purpose of the dispositional hearing was satisfied by placement of the children with their mother.
It is our obligation in this appeal to review not only whether the trial court properly assessed the safety of returning children to the parent who abused them, but the children's best interest. See N.J. Div. of Youth & Family Servs. v. J.B., 417 N.J. Super. 1, 21-22 (App. Div. 2010). In so doing, we agree that to keep the children with Yolanda was proper.
II
The safety of children is of paramount concern in Title 9 litigation. The purpose of the statutory scheme is to protect children from further injury. See N.J.S.A. 9:6-8.8(a). N.J.S.A. 9:6-8.21(c) defines an abused or neglected child as a person under the age of eighteen:
whose physical, mental, or emotional condition has been impaired or is inThe standard of proof is by a preponderance of competent, material, and relevant evidence. N.J.S.A. 9:6-8.46(b). The Division met that burden.
imminent danger of becoming impaired as a result of the failure of his parent . . . to exercise a minimum degree of care (a) in supplying the child with adequate . . . medical . . . care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment . . . .
Defendant missed two of David's scheduled therapy sessions. This child's emotional difficulties were so severe that at the age of eight, he was committed to a psychiatric institution. At the age of six, he was expelled from school because of sexual behavior. Because of his mental health issues, he spent years living, not at home, but in a residential placement. That defendant missed appointments for this child is itself of concern.
But, in addition, defendant initially refused altogether to take Amy and Andrew to counseling at all. This refusal ignored the well-being of his children.
The Division offered defendant the services that he and the children needed. By signing a case plan on March 8, 2007, defendant agreed not only to take David to all his therapy sessions, but to ensure that Amy and Andrew were also evaluated. He nonetheless failed to do so. This is in addition to, by the children's report, continuing to strike them with objects.
Throughout, defendant has expressed concern about his own chronic health problems. Nonetheless, he failed to take Andrew for medical evaluation, knowing that his son was underweight and might have inherited the same condition. Thus the court's findings that defendant did make his children abused and neglected, pursuant to N.J.S.A. 9:6-8.21(c)(4)(a), were well-supported by the evidence in the record.
The court's May 30, 2007 fact-finding was therefore supported by adequate and substantial evidence. And we do not second-guess the trial court's judgment so long as substantial and credible evidence exists in the record. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 427 (2012).
III
Defendant also attacks the Division's 2007 removal of the children from his care. N.J.S.A. 9:6-8.29(a) permits the removal of children on an emergency basis where "the child is in such condition that the child's continuance in . . . [the] residence or in the care and custody of the parent or guardian presents an imminent danger to the child's life, safety, or health, and there is insufficient time to apply for a court order."
On October 16, 2007, when the emergent removal occurred, Amy and Daniel bore bruises from defendant striking them and disclosed that their father as a matter of course hit them with objects. Defendant had already acknowledged striking David in December 2006. After that incident, defendant engaged in services, but continued to employ excessive corporal punishment to discipline his children. That physical abuse reoccurred, even though the Division was involved with the family, and after defendant was provided with services, necessitated removal to ensure the children's safety.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION