DIVISION OF YOUTH AND FAMILY SERVICES v. R.T.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1384-06T41384-06T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.T.,

Defendant-Appellant.

_______________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF K.M.B.

and R.J.B.,

Minors.

_______________________________________

 

Submitted October 30, 2007 - Decided

Before Judges Winkelstein and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-10-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel; Mr. Kazer, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Lisa B. Landsman, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors K.M.B. and R.J.B. (Patricia A. Dulinski, Designated Counsel, on the brief).

PER CURIAM

Defendant R.T. appeals from an order entered by Judge Ronald E. Hoffman on September 7, 2006, terminating his parental rights to K.M.B. and R.J.B. We affirm.

I.

On September 1, 2004, the Division of Youth and Family Services (Division) commenced this action, seeking to terminate defendant's parental rights to K.M.B. and R.J.B. The complaint also sought the termination of the parental rights of C.B., the biological mother of these two children, as well as the parental rights of C.B. and W.J. to two other children, C.M.B. and J.A.B. Judge Hoffman conducted a trial on several dates in March, April, and June 2006.

During the trial, the judge accepted C.B.'s surrender of her parental rights to the four children, contingent upon their adoption by their current foster parents. The court also accepted the surrender by W.J. of his parental rights to C.M.B. and J.A.B. The only issue remaining before the court was the Division's application for the termination of R.T.'s parental rights to K.M.B. and R.J.B.

Evidence was presented at trial which established that in 1998, C.B. and defendant began living together in a series of apartments in Ocean and Union Counties. R.J.B. was born on August 20, 1999, and K.M.B. was born on January 14, 2001. While they were living together, defendant and C.B. used marijuana and cocaine. Defendant twice attempted to commit suicide. In 1996, defendant had been involuntarily committed because he was a danger to himself or others.

In 2001, C.B. left defendant because he had no job and no prospects for stable employment. Apparently, C.B. and the children continued to visit defendant. On one occasion, C.B. and defendant had an argument and defendant bit C.B.'s arm. C.B. obtained a final restraining order, which required among other things, that defendant pay child support. Defendant only made sporadic child support payments.

At some point thereafter, C.B. began living with W.J., and they had two children. W.J. later left C.B., and she was forced to care for the four children on her own. In June 2003, one of the Division's case workers visited the family. The case worker saw that C.B. was deteriorating mentally and the children were neglected. C.B. consented to the removal of the children and they were placed in foster care. In July 2003, all four of the children were placed in the same foster home. At that time, R.J.B. was about four years old, and K.M.B. was two-and-one-half years old.

In August 2003, C.B.'s mother contacted defendant and informed him that the children had been placed into foster care. Defendant then contacted C.B. and the Division. C.B. had the restraining order lifted, thereby allowing defendant to visit the children. The Division scheduled a drug test but defendant did not appear. Defendant thereafter had two drug tests and the results were negative.

Visitation began sometime in January or February 2004. In May 2004, defendant submitted a urine sample for drug testing. The Division determined that it had been adulterated but defendant refused to provide another sample. In March 2006, defendant was given a drug test, and the results indicated that he had ingested marijuana.

The judge issued a decision from the bench on September 5, 2006, finding that the Division had proven by clear and convincing evidence all of the criteria required under N.J.S.A. 30:4C-15.1a for the termination of R.T.'s parental rights. An order memorializing that decision was entered on September 7, 2006, and this appeal followed.

Defendant raises the following points for our consideration:

POINT I:

THE JUDGMENT OF GUARDIANSHIP TERMINATING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE TWENTY-FOUR (24) MONTH DELAY BETWEEN THE FILING OF THE COMPLAINT AND THE TRIAL COURT'S DECISION TERMINATING PARENTAL RIGHTS VIOLATED NEW JERSEY PUBLIC POLICY, WAS CONTRARY TO THE DIVISION'S STATUTORY OBLIGATIONS, AND DEPRIVED THE DEFENDANT OF A FUNDAMENTALLY FAIR GUARDIANSHIP TRIAL (Not raised below).

POINT II:

THE JUDGMENT OF GUARDIANSHIP TERMINATNING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO CLEARLY AND CONVINCINGLY PROVE THE FOUR PRONGS OF THE BEST INTERESTS TEST.

(A) THE TRIAL COURT ERRED IN FINDING THAT DOMESTIC VIOLENCE "COMMITTED IN THE PRESENCE OF CHILDREN" IS A PER SE HARM UNDER THE FIRST PRONG.

(B) THE TRIAL COURT ERRED IN FINDING SECOND-PRONGED PARENTAL UNFITNESS BECAUSE THE DEFENDANT WAS ABLE TO TAKE CUSTODY OF R.J.B. AND K.M.B. IN TIME TO MEET THEIR NEEDS.

(C) THE TRIAL COURT'S FINDINGS WITH REGARD TO THE THIRD PRONG CANNOT BE SUPPORTED BECAUSE THE DIVISION FAILED TO MAKE REASONABLE EFFORTS TO "ACCOMMODATE" THE DEFENDANT.

(D) THE TRIAL COURT APPLIED AN IMPROPER "BETTER INTERESTS" TEST IN FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

II.

We first consider defendant's contentions that the judge erred by finding that the Division established the four criteria in N.J.S.A. 30:4C-15.1a for the termination of parental rights.

"The right of parents to raise their children is a fundamental one of constitutional magnitude." N.J. Div. of Youth and Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). However, these rights must be balanced against "the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

"The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. That standard, which is codified in N.J.S.A. 30:4C-15.1a, requires that parental rights may only be terminated when it is established that:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1a.]

The criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

The scope of our review of a trial court's factual findings is limited. Such findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). The trial court's findings "'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Furthermore, because judges in the Family Part have special "expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

We are satisfied that there is sufficient support in the record for the judge's finding that the children's safety, health and development have been harmed by their relationship with R.T. N.J.S.A. 30:4C-15.1a(1). As Judge Hoffman observed in his decision from the bench, defendant had virtually no relationship with the children before they were placed into foster care. After C.B. obtained the restraining order in 2001, defendant made no effort to seek a modification of that order so that he could visit the children.

Defendant's supervised visits with the children did not begin until January or February 2004. In addition, defendant provided virtually no financial support for the children while they were living with C.B. despite the fact that they were living is adverse conditions. Clearly, the evidence supports the judge's determination that the Division had proven the first prong of the "best interests" test.

There also is ample support in the record for the judge's findings that defendant is unable or unwilling to eliminate the harm facing the children and a delay in permanent placement would add to the harm. N.J.S.A. 30:4C-15a(2). The record shows that although defendant married M.T., he continues to lack stable employment. As of the time of trial, defendant was receiving unemployment benefits and earning a modest amount from work in a family business. The judge aptly observed that defendant was living off of the "charity of his current wife and her family." Furthermore, defendant had not addressed his mental health or substance abuse issues. Indeed, as the results of the March 2006 drug test revealed, defendant continued to use marijuana. The evidence also established the children would be harmed by a further delay in permanent placement. The judge properly observed that the foster home was "really the only home that [the] children have known" and they "are entitled to permanency."

In addition, there is sufficient credible evidence in the record to support the judge's finding that the Division made reasonable efforts to address the circumstances that led to the placement of the children outside of the home. N.J.S.A. 30:4C-15.1a(3). Here, the Division offered defendant a psychological evaluation; substance abuse evaluations; drug tests; parenting classes; and supervised visits from January or February 2004 to the time of trial. The record also shows that the Division considered alternatives to termination of parental rights.

Moreover, the record supports the judge's finding that termination of defendant's parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1a(4). At the time of trial, the children had been in their foster home for about three years. The evidence established that the children had strong bonds with their foster parents and they would suffer significant harm if removed from the foster home.

Dr. Margaret Beekman, the Division's expert in clinical psychology, performed bonding and psychological evaluations of the parents and the children. Dr. Beekman testified that although K.J.B. and R.J.B. had developed bonds with defendant and M.T., the children had stronger bonds with their foster parents. She also noted that K.J.B. and R.J.B. had a bond with their siblings. Dr. Beekman opined that the children would suffer from depression and behavioral problems if they are removed from their foster home.

Dr. Chester Sigafoos, a forensic psychologist, also performed bonding evaluations. The doctor opined that the children would suffer serious and enduring harm if removed from their foster parents. Dr. Sigafoos noted that the four children had developed strong bonds, and he further opined that K.J.B. and R.J.B. would sustain serious harm if removed from their siblings.

Defendant presented testimony from Dr. George Kopalka, a clinical psychologist, who stated that while K.J.B. and R.J.B. had bonded with their foster parents, they also had strong bonds with defendant. Dr. Kopalka asserted that it would be in the children's best interest if they were reunited with defendant and M.T.

However, Dr. Kopalka qualified his opinion when confronted with the fact that defendant had tested positive for marijuana in March 2006. He was reluctant to recommend placement of the children in a home where there is substance abuse. Thus, defendant's own expert had reservations about reunification of K.J.B. and R.J.B. with defendant.

In sum, we are satisfied that the record fully supports judge's determination that the Division had established by clear and convincing evidence all of the criteria under N.J.S.A. 30:4C-15.1a for termination of defendant's parental rights.

III.

Defendant additionally argues that the Division's complaint should have been dismissed because the trial on the Division's complaint was not held within the time required by N.J.S.A. 30:4C-15.2. The statute provides that a "final hearing for guardianship shall be held within three months from the date the petition [was] filed. . . ." Ibid.

Defendant notes that the Division filed its complaint in September 2004 but the trial did not begin until March 2006 and a final decision not reached until September 2006. Defendant asserts that in those two years, the children were in foster care and the bonds that they developed with their foster parents were relied upon by the judge as one of the grounds for terminating his parental rights.

We are convinced that there is no merit in defendant's argument. Although N.J.S.A. 30:4C-15.2 states that a hearing on a guardianship complaint shall be conducted within three months after it is filed with the court, the statute does not preclude the termination of parental rights if the hearing is not held in that timeframe.

Furthermore, although the bonds between the children and their foster parents may have grown stronger in the two years between the filing of the complaint and the final judgment, we are not convinced that defendant was significantly prejudiced by the delay in resolving the matter. Here, the children were placed in the foster home in July 2003. At that time, defendant was not a factor in their lives. Defendant did not begin to visit the children until January or February 2004. If the matter had gone to trial in December 2004, the bonds between the children and their foster parents would have been stronger than those between defendant and the children because the children lived with the foster parents and only saw defendant periodically for supervised visits.

Moreover, the bond between the children and the foster parents was only one of several factors relied upon by the judge for his decision. The judge noted that defendant did not have stable employment and failed to address his serious mental health and substance abuse problems. Because the trial in the did not occur promptly, defendant had a longer period of time to address these issues. As the record shows, he failed to do so.

We have considered defendant's other contentions and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

C.B. estimated that defendant paid a total of $400 in the period from 2000 to 2003. She also told the Division that defendant owed about $15,000 in child support.

Defendant claimed that he unknowingly ingested marijuana that had been baked into a brownie. The judge found this explanation to be incredible.

(continued)

(continued)

13

A-1384-06T4

RECORD IMPOUNDED

November 15, 2007