PER CURIAM.
This case concerns a custody dispute between a natural father and a maternal aunt who asserts she is the child's psychological parent. For approximately two and one-half years, the child lived in New Jersey with her terminally ill mother and maternal aunt, plaintiff Deborah Boru, while her father, defendant Peter Foy, remained in New Mexico. Peter appeals from an order that granted custody to Deborah after his wife's death. For the reasons that follow, we conclude that there was sufficient proof of "exceptional circumstances" to overcome the presumption in favor of a natural parent's right to custody and affirm.
K. was born in February 2003. At the time, her mother, Diane, and Peter had been married for approximately sixteen years. In 2004, Diane and Peter moved to New Mexico in the hope of finding greater opportunities.
In November 2006, Diane was diagnosed with Stage 2 tongue cancer. She decided to go to New Jersey with K., then three years old, for her treatment and live with Deborah. According to Peter, they agreed he would stay in New Mexico and that she would return to New Mexico following treatment. Unfortunately, Diane suffered through a series of recurrences, surgeries and treatments until her death approximately two years later. Aside from one visit to New Mexico in June 2008, she never returned.
Diane underwent her first surgery in December 2006, a tongue dissection. She remained in the hospital for two weeks, recuperated for six weeks at Deborah's home and then began an initial round of radiation and chemotherapy that was completed in early April 2007.
In May 2007, Diane noticed another nodule on the side of her neck, which tested positive for cancer. She had a second surgery in June 2007 to remove the lymph nodes on the left side of her neck. Her treatment continued through the summer. In August, tests confirmed that the cancer had metastasized to her scalp and lung.
Diane continued in treatment, receiving radiation and chemotherapy on and off until January 2008. During this period, Diane was going through rehabilitation, learning how to speak again, but was only able to handle one to two hours of activity outside the home.
In April 2008, an MRI revealed that Diane's cancer had spread further. The tumor on her scalp was enlarged, beginning to pierce the lining of her brain, and the tumor on her lung was also starting to grow. The doctor who had been treating her told her there was no plan for further treatment. Diane went with Deborah to another cancer center, which provided her with a plan of treatment from April to October 2008.
Diane had another setback in September 2008, when she discovered another tumor on her scalp. The treatment plan was modified to extend radiation and chemotherapy to December 2008. In mid-December, Diane learned she had a tumor growing in her right middle ear. Chemotherapy was resumed again. Diane required emergency hospitalization for double pneumonia on December 29, 2008, and remained hospitalized until February 8, 2009, when she was transferred to a rehabilitation facility and ultimately discharged to Deborah's home.
While she was hospitalized, Diane consulted with an attorney and wrote the following letter to defendant:
On the same date as this letter, Diane executed a will in which she named her sister as guardian for K. Peter stated that he did not receive the letter until after Diane's death.
Diane returned to Deborah's home on February 8, 2009, but had to be hospitalized on February 16, 2009. Deborah called Peter, who came to New Jersey on February 21 and stayed until March 1, 2009. Before leaving, he told Deborah's husband that he knew this was the last time he would see his wife alive, that he would take K. back to New Mexico and the government would help him financially.
Diane died one week later, on March 8, 2009.
Peter had been accepted for training as a corrections officer in mid-December 2006 and began his employment in January 2007. He made his first visit to New Jersey in March or April 2007. Although he could have applied for up to twelve weeks of paid leave, Peter came to New Jersey only a few times after that — in October 2007, February 2008, October 2008 and in February 2009, just prior to Diane's death. He has never alleged that he was unaware of Diane's progressively poor diagnoses. Yet, his testimony did not reveal any effort he made to determine whether K. required additional care under the circumstances.
On the day after Diane's death, Deborah consulted with a child psychiatrist to determine the best way to tell K., then six years old, her mother had died. After Peter arrived, they sat in a circle with Deborah's mother and brother. Deborah told K. that her "mommy is with God now in heaven." K. had a flat affect, apparently in shock. She hugged Deborah and her grandmother. Peter also hugged and reassured K. She did not break down in tears until she joined Deborah when Deborah was telling her daughter about Diane's death.
On the day after Diane's funeral, Peter took K. to school and told the principal he intended to leave New Jersey that day, taking K., without telling Deborah. The principal attempted to dissuade him from this course of action and called the police. Deborah learned of Peter's plan coincidentally when she came to school to give her daughter cough syrup.
Later that afternoon, Deborah's brother and mother met with Peter and convinced him that it would not be good for K. to be taken out of school suddenly. He agreed to let her stay until the Easter recess. Peter admitted in his testimony that he had not given any thought to how K. might react if told she was going to leave for New Mexico so soon.
Deborah filed an order to show cause and a verified complaint for custody of K. on March 13, 2009. The order to show cause sought to restrain Peter from removing K. from New Jersey, based upon the conditions observed and documented at his home during a June 2008 visit by Diane, Deborah, K., and Deborah's daughter. Although Peter testified that the house was clean, the trial judge described "despicable conditions" of "complete filth" at the house that included dog feces both inside the house and in the rear yard. The trial judge entered orders on April 3, 2009, continuing custody of K. with plaintiff, appointing a guardian ad litem for K., ordering a diagnostic evaluation of the parties by the Bergen Family Center and a home inspection custody/parenting time investigation, and scheduling a plenary hearing.
In addition to the parties, there was extensive testimony from both fact and expert witnesses at the plenary hearing. The trial judge found Deborah, her husband, brother, sister, and mother, and K.'s school principal "extremely credible." He found the testimony provided by Peter's father "added nothing" and that the testimony of Peter's two friends from New Mexico was "facile and insubstantial."
Deborah testified that when Diane and K. came to live with her, Diane became unable to perform the daily tasks required to care for K. Although Diane remained the "mom" in making decisions, Deborah became primarily responsible for K.'s day-to-day care. The list of parental tasks performed by Deborah bears this out. She toilet-trained K., took her to medical appointments, prepared her meals, put her to bed each night, and took her to and from school each day. She enrolled her in parochial school, arranged for a scholarship for her, and helped her with homework. Deborah also enrolled and paid for K. to participate in extra-curricular activities such as karate, ballet, swimming and guitar lessons. Deborah bought K.'s clothes, toys, and school supplies. She neither asked for nor received any reimbursement from Peter for these expenses or other financial support for K.
The trial court observed that Deborah was "extensively involved" in K.'s education, volunteering at school, serving as class mother, and participating in parent-teacher meetings as K.'s surrogate parent. The trial court found that, as Diane struggled through her terminal illness, K.'s care and nurturing was increasingly seen to by Deborah and her family. The court concluded there was "no reasonable doubt" that Deborah "not only provided, but also actually met or exceeded all of [K.'s] maternal needs that could not be provided by her fatally ill mother."
Peter testified that he and his daughter were "[a]lways very close." He described the care he provided to K. before she and Diane moved to Deborah's home. Although Diane and her mother did most tasks for K. when they lived with Diane's mother, he stated that everything changed when they moved to New Mexico. Since Diane had full-time employment and he did not, he and Diane had to "work together . . . as a team" to care for K. During the period from October 2004 to June 2005, he watched K. while Diane was at work.
Peter testified that, throughout her illness, he always believed Diane was going to get better and return to New Mexico. He also testified that it was his understanding that Diane provided the primary care for K. after she went to live with Deborah. He agreed, however, that there were times when she was too sick to care for K. and then, there were "a number of people" who cared for K, including Deborah. He knew that, "at least two times," Diane's mother took "extensive time off from work" for months at a time.
Peter considered his separation from his wife to be involuntary and sent her $200 per month for support in addition to providing reimbursements received from his health insurance company. He testified that he did not visit more frequently or take any family leave for financial reasons. However, Diane's brother, a corrections officer who helped Peter obtain his job, testified that Peter could have arranged his work schedule to visit more frequently and could have applied for up to twelve weeks paid family leave. Peter did neither.
Peter made no effort to seek counseling or psychological support for K. after Diane's death. Instead, he intended to take her back to New Mexico, without notice to Deborah and without any identified plans in place for her education, daycare or counseling, on the day after her mother's funeral, abruptly severing her ties to the family and school community she had known for approximately one-half of her life.
When the plenary hearing was held approximately one year later, Peter still had not made reasonable plans for K.'s care. He never asked K.'s school to provide him with any reports of her progress. His plan to take K. to and from school failed to account for aspects of his employment which interfered with that plan. For example, the prison where he works is subject to unannounced "lockdowns" in which he would be required to stay in the institution for up to eighteen hours. Further, his schedule was subject to change every six months. Asked about caring for K.'s psychological needs, Peter testified there was a place near his home that offered counseling services. However, he did not intend to pursue that further until he had custody and provided no indication of having made any effort to ascertain K.'s needs or the service's ability to meet those needs. He also testified he planned to take parenting courses that would "probably" be in Albuquerque but, nearly one year after he first planned to take K. to New Mexico, had not taken such a course.
The trial court stated Peter "presented at best a fanciful approach to the prospect of caring for [K.], ignoring his work schedule realities, and offering at best sketchy details on the school [K.] would be attending and who would be caring for her in New Mexico." The court further observed that Peter's "proffered New Mexico babysitter was married to a violent felon who should not be permitted anywhere near [K.]"
Peter retained Miriam Rand to conduct a home study and social evaluation of him. She did not, however, testify at the plenary hearing. A few weeks after she completed her report, Peter agreed to her suggestion to set up a website for him to solicit monetary contributions for his custody case, which led to his appearance on a national television show.
Peter admitted he did not provide Deborah with any financial contribution for K.'s care. Noting that K. received monthly checks from the government, Peter stated the "only thing" he had done was give K. gifts. He testified that he paid for K.'s birthday party at an ice skating rink in 2008 but did not skate with her at the party because he did not feel well that day.
Peter's telephone records reflected infrequent calls to New Jersey. The court found Peter's testimony failed to supply any reason why he was unable to come to New Jersey to be with his wife and daughter, why he could not visit his daughter more often or bring her back to New Mexico, even for vacations. In addition, the trial judge found that, when he visited, Peter "paid little attention to [K.], but managed to have a number of reunions with area friends. He never helped bathe, dress, feed or in any other way care for [K.] He did not put her to bed, tell her a bedtime story, do her laundry, prepare a meal for her, or take her to school."
The court's characterization of Peter's "lack of interest" in K. is echoed in a diary entry written by Diane, dated July 13, 2008, regarding their one trip to New Mexico:
K.'s school contracted with Nicole Garibaldi-Denude, L.S.W., to provide her with grief counseling after Diane passed away. She was not paid for her testimony, which she volunteered out of concern for K. She met with K. weekly from March 2009 until June 2009, and at the time of trial was seeing her bi-weekly. At their first meeting, Garibaldi had K. draw a picture of her family. In the picture she included Deborah, Deborah's son and daughter, herself, Deborah's husband, Diane, her grandmother, Deborah's in-laws, and then Peter, in that order. According to Garibaldi, this picture represented that K. views Deborah as her primary caregiver and Peter as an extended family member. During their first session, K. told Garibaldi she was fearful of "leaving her aunt and of her father taking her away."
This fear appeared to be realized in April 2009. K. was so upset following a visit with Peter that her school contacted Garibaldi. K. told Garibaldi that defendant said he was taking her to New Mexico that weekend. K. said she was very scared, sad, and upset, and did not want to see her father. Garibaldi testified it was not appropriate for Peter to make such a comment to K. and that it did not "show too much awareness to her needs." According to Garibaldi, K. told her "[p]robably at least 20 times[,]" that she wanted to stay with Deborah in New Jersey, and identified one of her "big worries" as Peter taking her away.
Garibaldi testified that K. shares a parent/child type bond with Deborah. Although she never met Peter, she also testified that K. does not share such a bond with him. In her opinion, "transferring custody of K. to [Peter] would be psychologically damning to K.[,]" and such damage could be irreversible.
Dr. John Schmerler, a psychologist employed by the Bergen Family Center, was appointed by the court to conduct a custody evaluation and testified for Deborah as an expert in clinical psychology. Dr. Schmerler found that Deborah and K. share a parent/child bond that developed during the two and one-half years K. was living with Deborah. Dr. Schmerler testified that Deborah was a "significant caretaker" prior to Diane's death and K.'s primary caregiver after Diane died.
Dr. Schmerler testified that transferring custody of K. from Deborah to Peter "would cause undue emotional harm to [K.]" He stated the transfer could negatively affect K.'s ability to form relationships in the future. Dr. Schmerler opined that K. was flourishing under Deborah's care and that Deborah was providing a strong support system for K. He also believed Peter has a support system in place in New Mexico to care for K. Dr. Schmerler opined that the best interests of K. would be served by her residing with Deborah but developing and reestablishing a relationship with her father. He felt a decision as to whether that arrangement should be permanent or transitory should be deferred.
Dr. Charles Hasson, a licensed psychologist, also testified as an expert for Deborah. Dr. Hasson conducted one clinical interview with Peter that lasted approximately three hours. Dr. Hasson administered a variety of psychological tests to Peter which revealed he "has difficulty with feelings and expressing them and having social sensitivity[.]" According to Dr. Hasson, Peter does not have the "ability to understand his child's emotional needs, his child's pain or anxiety." When Dr. Hasson asked Peter what he would have done differently in this case, Peter said he would have left with K. to New Mexico once Diane was buried, an answer Dr. Hasson found revealed "a lot of insensitivity."
Dr. Hasson also interviewed K. and administered psychological tests to her. He interpreted K.'s description of Deborah as being "more competent, more emotionally supportive or nurturant, more consistent for setting rules, and having more positive personality traits." K. also told Dr. Hasson her biggest fear is being taken away from her present environment.
A videotape of a session Dr. Hasson observed with Peter and K. was played at the plenary hearing. There was very little interaction between the two during the first thirty-six minutes. Peter made disparaging remarks about Deborah, including veiled threats about getting even with her and ending K.'s relationship with Deborah. Dr. Hasson stated that Peter "made no attempt to ask [K.] how she was feeling or comfort her[.]" He saw no emotional connection between Peter and K. during the interview, and when Peter tried to hug his daughter, "she was frozen." Dr. Hasson stated he did not observe a parent/child type bond between Peter and K. and described Peter as "psychologically absent" for the last three years of her life.
In contrast, Dr. Hasson's observations of K. with Deborah reflected an emotional connection between them. He stated that Deborah "provides emotional nurturing, physical nurturing, care. She provides all the aspects of a parent. She[`s] involved in her schooling, teaching, taking her to school, doing things with her. Having a part of her life. Living with her. There's nothing more she can do to become more of a parent."
Dr. Hasson testified that if Peter were to be given custody of K., it would have "a devastating impact." He explained, "This child has gone through a — a trauma. You know, she's healing, she's doing very well, but she'd be wrenched away from any sense of family, stability. And I don't believe she would overcome it readily, I just don't." He considered the damage irreversible, "a double loss; she loses her mother, then she loses her aunt[.]" Dr. Hasson opined that Peter will never be able to form an emotional bond with K. His recommendation was that Deborah be given legal and residential custody of K.
Dr. Hasson expressed concern about a joint custody arrangement, believing Peter would not work cooperatively with Deborah. On cross-examination, Dr. Hasson testified that it was his opinion that Peter is an unfit parent.
N.G. Berrill, Ph.D., a forensic psychologist, testified as an expert for Peter. He acknowledged the existence of a strong psychological bond between K. and Deborah and the lack of a meaningful relationship between K. and Peter. He opined that Peter "meets the threshold of an adequate parent[.]" He recommended that K. be returned to New Mexico after receiving counseling and suggested the transfer occur during the summer, after the school year was over. The trial judge found Dr. Berrill's testimony "unimpressive and unpersuasive."
The trial judge noted that this custody dispute was governed by the two prong test articulated in
In this appeal, Peter argues that the presumption in favor of a natural parent was not overcome because Deborah failed to prove she was a "psychological parent." Specifically, he contends he did not consent to the development of a parent-child relationship between Deborah and K. and that Deborah could not have achieved the status of psychological parent while Diane was alive. He also argues that, in the absence of clear and convincing evidence that granting him custody would cause K. serious psychological harm, the custody award must be reversed. Finally, he argues that because the best interests factors are in equipoise, he should have been awarded custody. After careful consideration of the record, briefs and arguments of counsel, we are satisfied that none of these arguments has merit.
In a custody dispute between a natural parent and a third party, there is a presumption in favor of the natural parent which arises from a parent's "fundamental right to parental autonomy."
The parent's right to custody is not absolute, however. The presumption in favor of the parent will be overcome by "a showing of gross misconduct, unfitness, neglect, or `exceptional circumstances' affecting the welfare of the child[.]"
In
The focus of the inquiry is upon protecting the child from harm and so, "exceptional circumstances" may exist when there is a "potentiality" or "probability" of serious physical or psychological injury to the child.
The central inquiry here is whether "exceptional circumstances" existed that overcame the presumption that Peter, as the legal parent, should be awarded custody. As discussed infra, we are satisfied that the evidence established such "exceptional circumstances" here. However, as a key dispute between the parties relating to that issue was whether Deborah was a psychological parent, we turn to consider that question.
Psychological parent cases constitute a subset of "extraordinary circumstances" cases and recognize "that children have a strong interest in maintaining the ties that connect them to adults who love and provide for them."
The evidence persuasively establishes that K. resided with Deborah for well over two years,
Peter argues, however, that because Diane was K.'s custodial parent, he was entitled to rely upon his understanding that, until she died, Diane assumed all parental responsibilities for K. He also argues he did not consent to or foster a parent-child relationship between Deborah and K.
Even accepting, arguendo, Peter's characterization of Diane's level of activity in K.'s life prior to her death, Diane's status does not preclude Deborah from becoming a psychological parent. Consistent with the criteria for the "exceptional circumstances" exception, the test adopted in
The "critical" factor in that evaluation is whether Diane and Peter were "participant[s] in the creation of the psychological parent's relationship with the child[,]" and "cede[d] a measure of parental authority to a third party[.]"
A parent's consent to the creation of such a bond need not be explicit. "For example, where a legal parent voluntarily absents herself physically or emotionally from her child or is incapable of performing her parental duties, those circumstances may constitute consent to the parental role of a third party who steps into her shoes relative to the child."
The weight due Peter's stated belief that K.'s parental needs were met by Diane throughout her terminal illness is substantially undercut by his own testimony, which revealed an awareness of facts that rendered this belief unreasonable. As Peter testified that he cared for K. in New Mexico while Diane worked, he was undoubtedly aware of the daily demands of caring for his daughter. In the next two and one-half years until her death, Diane suffered through repeated surgeries and courses of radiation and chemotherapy. Peter testified that Diane's mother took off extended periods of time from work — months at a time — at least twice, to care for Diane. His awareness that Diane needed such assistance is inconsistent with a belief that she was fully capable of caring for K.'s needs.
Certainly, Peter's stated beliefs that Diane was capable of caring for K. and that she would get better and return to New Mexico became unsustainable in April 2008, approximately one year before Diane's death. The metastasis of Diane's cancer, evident as of August 2007, had progressed to the point where one tumor spread to the lining of her brain and another on her lung had grown significantly. Her treating physician told her no further treatment was planned, essentially telling her to abandon hope. Despite this development, Peter did not come to New Jersey until six months later. His testimony revealed no effort to determine to what extent K.'s needs were met by Diane during this stage of her illness.
Moreover, as the trial court found, Peter paid little attention to K. during his infrequent visits. "He never helped bathe, dress, feed or in any other way care for [K.]. He did not put her to bed, tell her a bedtime story, do her laundry, prepare a meal for her, or take her to school." The court reached the "inescapable conclusion" that Peter was "content with the living arrangements: He in New Mexico and his wife and daughter in New Jersey." The record provides ample support for this conclusion.
In the face of facts that plainly revealed Diane's ability to care for K. was substantially diminished by her terminal illness, Peter allowed the gap in parental care to be filled by Deborah. The evidence also establishes the voluntariness of this choice. He offered no support for his contention that financial constraints prevented him from doing more to meet his daughter's needs. And, despite this contention, he failed to take advantage of opportunities for paid leave that would have afforded him such an opportunity. We are satisfied that the evidence shows Peter made a volitional choice to allow Deborah to assume a parental role for K. by voluntarily absenting himself physically and emotionally from her needs. Accordingly, all four prongs of the psychological parent test were met.
Peter argues further that to award custody to Deborah, it was necessary for the court to find clear and convincing evidence that awarding him custody would cause K. serious psychological harm and that the trial court's failure to do so is fatal to the court's decision. After determining Deborah was K.'s psychological parent, the trial judge proceeded to a best interests analysis without making a specific finding that there is a substantial likelihood that K. would suffer harm if custody was awarded to Peter. There would appear to be support for this procedure. In
Turning to Peter's argument that clear and convincing evidence of such harm is required, we are guided by the principle that the proof required by procedural due process "turns on both the nature of the private interest threatened and the permanency of the threatened loss,"
The termination of parental rights represents the greatest intrusion upon parental rights, permanently severing a parent's relationship with his or her own child, a severe and irreversible loss of a fundamental right.
An award of custody to a third party does not involve a termination of all parental rights and is neither permanent nor irreversible.
Although the trial court did not make a specific finding regarding the likelihood of harm to K. if custody were awarded to Peter, we are convinced that such a finding is implicit in the trial court's factual findings. We are additionally convinced that there is sufficient credible evidence in the record to support that conclusion, whether measured by a clear and convincing or a preponderance of the evidence standard.
All the experts, including Dr. Berrill, the psychologist who testified on behalf of Peter, recognized the strong bond between Deborah and K. On a day-to-day basis, Deborah was "the source of the fulfillment of [K.'s] physical needs, [and] also the source of [her] emotional and psychological needs."
Dr. Hasson testified it would have "a devastating impact" upon K. if Peter were awarded custody and that the damage would be irreversible. He explained that having gone through the trauma of losing her mother, an award of custody to Peter would wrench K. "away from any sense of family, stability." He did not believe K. would readily overcome the "double loss" of losing her aunt after losing her mother.
Dr. Schmerler also testified that transferring custody of K. from Deborah to Peter would cause undue emotional harm to [K.]" He stated the transfer could negatively affect K.'s ability to form relationships in the future. In addition, Garibaldi, the grief counselor who testified out of concern for K., stated transferring custody of K. to Peter would be "psychologically damning" and such damage could be irreversible.
The evidence of a significant potential for harm to K. was effectively unchallenged by Dr. Berrill's testimony that Peter "meets the threshold of an adequate parent[.]" Dr. Berrill described K. as "a very young, very vulnerable, very wounded child" and recognized that Peter lacks any meaningful relationship with her. Yet, he discounted any negative feelings K. expressed about Peter as likely the product of things she had heard from others rather than any personal experience she had with Peter, who visited infrequently and paid little attention to her. We find no reason to depart from the trial court's conclusion that his testimony was "unimpressive and unpersuasive."
Therefore, we are satisfied that the trial court correctly found that the presumption in favor of the natural parent had been overcome by "exceptional circumstances," and it was appropriate for the trial court to proceed to the second step of the
In his final argument, Peter claims the factors relevant to a best interests analysis were in equipoise, requiring an award of custody to him. We disagree.
The best interest factors are set forth in
In addition to these factors, the status of the legal parent must be considered as having "significant weight" in the best interests balance.
The trial court reasoned that because it had determined that Deborah is K.'s psychological parent, the best interests analysis was to be conducted "as if two legal parents were in conflict, giving weight to the factors set forth in
In reviewing a decision of a family court, we defer to its factual findings,
In summary, the first prong of the
Affirmed.
