NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.R. IN THE MATTER OF THE GUARDIANSHIP OF R.C.C., Jr Minor

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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5955-08T4

NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,

Plaintiff-Respondent,

K.R.,

Defendant-Appellant.
_______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF R.C.C., Jr.,

Minor.
_______________________________

Submitted February 22, 2010 - Decided March 11, 2010

Before Judges Reisner, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FG-11-36-08.

Yvonne Smith Segars, Public Defender, attorney
Hahn, Designated
for appellant (Beth Anne
Counsel, of counsel and on the brief).

Paula T. Dow, Acting Attorney General, attorney
for respondent (Lewis A. Scheindlin, Assistant
Attorney General, of counsel; Mary Jane Lembo
Cullen, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law
Guardian, attorney for minor R.C.C., Jr. (Phyllis

G. Warren, Assistant Deputy Public Defender, on
the brief).

PER CURIAM

K.R. appeals from an order dated March 9, 2009 terminating

parental rights to R.C.C., Jr. We affirm.

These are the most pertinent facts. K.R. has a long

history of drug abuse. She has also been diagnosed with severe

mental illness. R.C.C., Jr. is her fourth child. Due to her

mental health and substance abuse issues, she lost custody of

three other children, beginning with a child born in 1994, when

K.R. was sixteen. All of those children were born testing

positive for cocaine.

R.C.C., Jr. was born on February 20, 2007. At that point

his father, R.C.C., to whom K.R. was not married, was

incarcerated.1 The baby was removed from K.R. at birth because

he tested positive for PCP and cocaine, as did K.R. Her

explanation for the presence of drugs in their systems was that

she "accidentally" ingested some PCP. After taking custody of

the baby, the Division of Youth and Family Services (DYFS or

Division) referred K.R. to a specialized program for persons

with mental illness and substance abuse problems (MICA).

1
The father's parental rights were also terminated, but he has
not appealed.

A-5955-08T4
2

However, it was difficult to find her a placement because she

had previously been barred from the Catholic Charities network

due to prior verbal assaults on their staff.

DYFS was able to help her attend the Medallion MICA

program, but K.R. was terminated for lack of consistency. K.R.

then began another program at Trenton Treatment. However, K.R.

went to the intake but was terminated from the program because

she did not follow through with treatment. K.R. participated in

a third program, AAMH, but her attendance was sporadic and she

reported to DYFS that she was discharged from the program for

lack of regular attendance.2

After placing the child in foster care, DYFS contacted

relatives who might have been able to serve as caretakers. An

aunt was ruled out because of outstanding criminal warrants.

The paternal grandmother was ruled out after she missed meetings

and then stopped communicating with DYFS workers altogether.

The child has been with the same foster family since a week

after his birth. They have expressed an interest in adopting

2
According to the assigned DYFS case worker, periodic drug
screenings done in connection with court hearings initially
showed positive for drugs. Later screenings were negative;
however, a test done in December 2007 revealed that the sample
had been altered. A drug screening in December 2008 was
positive for cocaine and PCP.

A-5955-08T4
3

him. In fact, on December 19, 2008, they testified under oath

that they wished to adopt the child.

At the guardianship hearing, the Division presented

testimony from Dr. Alan Lee, a psychologist. Dr. Lee performed

two bonding evaluations between the child and K.R., the first on

May 28, 2008 and the second on November 25, 2008. On May 28, he

first evaluated the child's bonding with each of the two foster

parents, and evaluated the bond with K.R. during a third session

that day. On November 25, he had scheduled K.R. to have the

first evaluation session, but she arrived late and Dr. Lee used

the time to evaluate the child's bonding with one of the foster

parents. Thus, K.R.'s was the second session that day.

On both May 28 and November 25, Dr. Lee observed that the

child had not bonded with K.R. By contrast, on both occasions,

Dr. Lee observed that the child had a strong bond with both

foster parents. Dr. Lee testified that as of November 25, when

the child had lived with the foster parents for almost two

years, the child would be at significant risk of lasting

psychological harm if he was removed from them. On the other

hand, he testified that the child would suffer no lasting

emotional harm if K.R.'s parental rights were terminated.

Dr. Lee also performed a psychological assessment of K.R.,

during which she told him of her long history of drug and

A-5955-08T4
4

alcohol problems, as well as depression, schizoaffective bipolar

disorder, and hallucinations. Based on his own assessment of

K.R., as well as those of other experts who had evaluated her,

Dr. Lee concluded that she was not presently capable of

independently parenting any child, including R.C.C., Jr.

The Division also presented testimony from a psychiatrist,

Dr. Alexander Iofin. He evaluated K.R. on two occasions and

diagnosed her as having a psychotic disorder, probably

"schizoaffective disorder bipolar type," as well as "affective

disorder not otherwise specified." He also evaluated her as

having "mild mental retardation and . . . [a] significant amount

of maladaptive personality traits" including "narcissistic

personality, paranoid and schizoid personality features." He

was also concerned with her persistent lack of participation in

drug treatment. He testified that the drug PCP can cause the

user to become "extremely violent and extremely unpredictable."

According to Dr. Iofin, due to her psychiatric problems, as well

as her drug problems, K.R. is unable to act as a parent "for any

minor child now or in [the] foreseeable future."

In her trial testimony, K.R. contended that she tested

positive for PCP when R.C.C., Jr. was born, because she had

smoked a cigarette she borrowed from someone, not realizing it

was laced with PCP. She also testified that, other than that

A-5955-08T4
5

incident, she had not used drugs since 2003 or 2004. She

stopped going to the Medallion program because she did not "feel

like I needed to be at that program." She testified that she

was living in a one-bedroom apartment. Although she was

unemployed, she spent her days assisting her disabled

grandmother and helping to care for two developmentally disabled

relatives who lived with the grandmother. While at one point

she denied having mental problems, she later admitted to having

"manic depression." However, since her discharge from AAMH, she

has not been involved in any mental health treatment programs.

She denied having a positive drug screen in 2008, but testified

that she "sold drugs."

In a sixty-five page oral opinion, Judge Blackburn credited

the testimony of Drs. Lee and Iofin, as well as the DYFS case

workers who testified. She did not credit K.R.'s testimony that

she no longer used drugs. After reviewing the applicable legal

standards, the judge concluded that DYFS had proven by clear and

convincing evidence that termination of parental rights was in

the child's best interests.

"Parents have a constitutionally-protected, fundamental

liberty interest in raising their biological children, even if

those children have been placed in foster care." In re

A-5955-08T4
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Guardianship of J.C.,
129 N.J. 1, 9-10 (1992) (citing Santosky

v. Kramer,
455 U.S. 745, 753,
102 S. Ct. 1388, 1394-95,
71 L. Ed. 2d 599, 606 (1982)). This right co-exists with the State's

parens patriae responsibility to protect the welfare of

children. Id. at 10. The State may terminate parental rights

when it is demonstrated that the "'child's parent or custodian

is unfit . . . or the child has been neglected or harmed.'"

N.J. Div. of Youth & Family Servs. v. A.R.,
405 N.J. Super. 418,

434 (App. Div. 2009) (quoting In re Guardianship of J.C., supra,

129 N.J. at 10 (citations omitted)).

In an action to terminate parental rights, DYFS must prove

by clear and convincing evidence the four prongs of the best

interest test developed in N.J. Div. of Youth & Family Servs. v.

A.W.,
103 N.J. 591 (1986), and codified in N.J.S.A. 30:4C-15.1a:

(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 division has made reasonable efforts
to provide services to help the parent
correct the circumstances which led to the

A-5955-08T4
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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.

These factors are "'not discrete, but rather relate to and

overlap with one another to provide a comprehensive standard

that identifies a child's best interest'" A.R., supra,
405 N.J.

Super. at 434 (citations omitted).

A trial court's decision to terminate parental rights is

entitled to great deference. N.J. Div. of Youth & Family Servs.

v. M.M.,
189 N.J. 261, 278 (2007). Accordingly, our review of

the court's decision is circumscribed. Ibid. The trial court's

finding of facts and conclusions of law are binding if they are

supported by adequate credible evidence. Id. at 279.

"Deference is especially appropriate 'when the evidence is

largely testimonial and involves questions of credibility'".

Cesare v. Cesare,
154 N.J. 394, 412 (1998) (quoting In re Return

of Weapons to J.W.D.,
149 N.J. 108, 117 (1997)). Because the

trial court observes and hears the witnesses directly, it "has a

better perspective than a reviewing court in evaluating the

veracity of witnesses." Pascale v. Pascale,
113 N.J. 20, 33

(1988) (citing Gallo v. Gallo,
66 N.J. Super. 1, 5 (App. Div.

1961)). However, a trial court's finding is not entitled to any

special deference if the trial judge has a misconception of the

A-5955-08T4
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applicable law or misapplies the law to the facts. State v.

Steele,
92 N.J. Super. 498, 507 (App. Div. 1966).

III

In challenging the trial court's decision on this appeal,

K.R. presents the following points for our consideration:

THE TRIAL COURT'S DECISION TERMINATING THE
PARENTAL RIGHTS OF K.R. TO R.C.C., JR. WAS
NOT SUPPORTED BY CLEAR AND CONVINCING
EVIDENCE AND SHOULD BE REVERSED.

POINT I: THERE WAS NO CLEAR AND CONVINCING
EVIDENCE THAT R.C.C., JR.'S HEALTH, SAFETY,
OR DEVELOPMENT HAVE BEEN OR WILL BE
ENDANGERED BY HIS PARENTAL RELATIONSHIP WITH
K.R.

POINT II: THE DIVISION FAILED TO PROVE BY
CLEAR AND CONVINCING EVIDENCE THAT K.R. IS
UNABLE OR UNWILLING TO ELIMINATE THE HARM
FACING R.C.C., JR., OR IS UNABLE AND
UNWILLING TO PROVIDE A SAFE AND STABLE HOME
FOR HIM AND THE DELAY IN PERMANENT PLACEMENT
WILL ADD TO THE HARM.

POINT III: THE [DIVISION] FAILED TO PROVE BY
CLEAR AND CONVINCING EVIDENCE THAT IT HAD
MADE REASONABLE EFFORTS TOWARD REUNIFICATION
AND THE TRIAL COURT FAILED TO CONSIDER
ALTERNATIVES TO TERMINATION OF PARENTAL
RIGHTS.

POINT IV: TERMINATION OF K.R.'S PARENTAL
RIGHTS WOULD DO MORE HARM THAN GOOD.

Based on our review of the record, in light of the

applicable law, we conclude that these arguments are all without

merit. Except as addressed below, they do not warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

A-5955-08T4
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K.R. argues that the Division's determinations, and the

judge's decision, are not consistent with the evidence. K.R.

contends that she never missed a visitation with the child and

functioned well as a parent at these visits. She contends that

her drug tests were negative, DYFS delayed in providing services

to her, and the expert witnesses were mistaken in their

evaluations. She therefore contends that the agency did not

prove its case. We cannot agree.

While K.R. may have had positive interactions with the

child at her visits, the record overwhelmingly supports the

conclusion that she is presently incapable of acting as the

child's parent and will not be capable of doing so in the

foreseeable future. The record does not support her remaining

contentions. Despite the Division's efforts, K.R. has not

completed any of the drug programs provided to her and has

repeatedly either failed drug tests or failed to show up for

them. Moreover, she is not currently receiving treatment for

her serious mental illness.

Finally, the child has a right to permanency. He has lived

his entire life with his foster parents, with whom he has

bonded. Separating child from the foster parents would inflict

serious and enduring harm on the him. We affirm substantially

A-5955-08T4
10

for the reasons stated in Judge Blackburn's comprehensive

opinion.

Affirmed.

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