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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1341-04T41341-04T4 A-1877-04T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

T.H.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF T.N.W., T.E., AND T.K.H.,

______________________________________

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

K.S.E.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF T.N.W., T.E., AND T.K.H.,

________________________________________________________________

 

Submitted September 27, 2005 - Decided

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FG-13-82-04.

Yvonne Smith Segars, Public Defender, attorney for appellant T.H., A-1341-04T4 (Alison Perrone, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant K.S.E., A-1877-04T4 (Christine B. Mowry, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent on A-1341-04T4 and A-1877-04T4 (Michael Haas, Assistant Attorney General, of counsel; Mira Ogrizovic, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, attorney for minor children, T.N.W., T.E. and T.K.H. on A-1341-04T4 and A-1877-04T4 (Joyce L. Maraziti, Assistant Deputy Public Defender, Law Guardian, on the brief).

PER CURIAM

These consolidated appeals are from a judgment of guardianship terminating parental rights with respect to three male children, T.N.W. (born October 18, 1995), T.E. (born April 3, 1999), and T.K.H. (born March 28, 2002).

K.S.E., the appellant in A-1877-04T4, is the mother of all three children, but she has appealed only with respect to the termination of her parental rights to T.E. and T.N.W. During the pendency of this appeal, we ordered a limited remand for the purpose of vacating the judgment with respect to T.E., who was not included in the guardianship complaint and who was at all relevant times in the legal custody of his father, J.T. By consent of all parties, an order was entered by the trial court on June 1, 2005 vacating the portion of the judgment terminating K.S.E.'s parental rights to T.E. Therefore, K.S.E.'s appeal arguments with respect to T.E. are moot, and we will not discuss them in this opinion. Accordingly, the only remaining issue in K.S.E.'s appeal pertains to the termination of her rights to T.N.W.

T.H., appellant in A-1341-04T4, is the father of T.K.H. He is not the father of the other children in this proceeding. Thus, his appeal pertains only to the termination of his rights as to T.K.H.

"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Moreover, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986) (quoting Santosky v. Kramer, 455 U.S. 745, 787, 102 S. Ct. 1388, 1412, 71 L. Ed. 2d 599, 628 (1982)). Accordingly, courts have consistently imposed strict standards regarding the termination of parental rights. K.H.O., supra, 161 N.J. at 347. However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. This is because the State, as parens patriae, has a responsibility to protect the welfare of children. K.H.O., supra, 161 N.J. at 347.

The standard for determining the termination of parental rights is known as the best interests of the child test, originally set forth in A.W. and now codified in N.J.S.A. 30:4C-15.1a, which authorizes termination if the Division of Youth and Family Services (DYFS of the Division) can show:

(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 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.

DYFS has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R., 155 N.J. Super. 186, 193 (App. Div. 1977). Moreover, the four criteria overlap with one another to provide a comprehensive standard that identifies a child's best interest. K.H.O., supra, 161 N.J. at 348.

In K.H.O., the Court held that where there is evidence that a bond with a foster parent is strong and that a bond with a natural parent, by comparison, is not as strong, the fourth prong of the best interest standard will be satisfied. Id. at 363. New Jersey has a strong public policy favoring permanency. Id. at 357. In all guardianship and adoption cases, the child's need for permanency and stability must be accorded primary status. Id. at 357-58.

K.S.E. limits her argument on appeal to the fourth prong of the best interests test, arguing there was not sufficient credible evidence in the record to support a finding that termination of her parental rights to T.N.W. would not do more harm than good.

T.H. argues on appeal that the judgment terminating his parental rights to T.K.H. should be reversed because there was insufficient evidence to establish prongs one, two and four of the best interests test.

In the two-day trial, both parties were present and represented by counsel. DYFS presented the testimony of two case workers, John Patrick Dooher and Norma Taylor. By stipulation of all parties, DYFS placed in evidence the psychological and bonding evaluation reports prepared by Dr. Chester E. Sigafoos. Numerous other documents were entered in evidence. For the defense, two witnesses testified, DYFS case worker Susan Juska, and K.S.E. Judge Strelecki also interviewed both children. At the conclusion of the trial, Judge Strelecki rendered a comprehensive oral decision consuming fifty-four transcript pages. She thoroughly reviewed the testimonial and documentary evidence and found that the Division clearly and convincingly established all four prongs of the best interests test with respect to both parents and both children.

The findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, because of the particularized expertise of Family Court judges in family matters, we accord enhanced deference to Family Court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998). From our review of the record we are satisfied that the judge applied the correct legal standards and her findings are well supported by the record evidence. Accordingly, we will not disturb those findings and we affirm substantially for the reasons expressed by Judge Strelecki in her thorough and well-reasoned oral decision of September 16, 2004.

We set forth a brief summary of the facts and comment briefly on the appeal arguments.

K.S.E. had her first contacts with DYFS as a child. She was physically, emotionally and sexually abused during much of her childhood, and she ran away at age twelve, at which time she became involved with DYFS. Her contacts with DYFS as a parent began with referrals in 1998. K.S.E. began abusing alcohol and drugs at an early age, and her multiple efforts at treatment proved unsuccessful. She tested positive on many occasions for various drugs, including marijuana and cocaine. K.S.E. was diagnosed with "multiple pathological conditions, which severely interfere with her fitness as a parent, specifically a substance dependence condition, clinical disorders and several character psychopathologies." These disorders and conditions "interfere with her ability to effectively parent her children, and pose a significant risk of harm to the children if untreated." Dr. Sigafoos opined that the "[p]rognosis for this client is poor. The rooted character of the client's psychopathological disorders will be difficult to treat. The efficacy of treatment will be effected [sic] by the client's lack of insight, lack of motivation, and lack of commitment to change."

K.S.E. also demonstrated a history of angry outbursts and, according to the counselors at Seabrook House, she "lack[ed] insight into the disease concept and 12 step philosophies." K.S.E.'s efforts at anger management counseling as well as substance abuse treatment were sporadic. Although she demonstrated some willingness to participate and address these problems, she did not persevere and was repeatedly unsuccessful in completing programs.

T.H. also has a long history of substance abuse. He has not obtained or sought custody of his son, T.K.H., although he attended visitation with him and acted appropriately. T.H. has refused to avail himself of services offered by the Division and has refused to undergo psychological evaluations. He has also failed to obtain suitable housing and has presented no plan for parenting his child. Basically, his contention throughout has been that the appropriate plan would be for the child to be reunited with his mother, K.S.E. However, that plan is plainly not a viable one because of K.S.E.'s deficiencies.

Both children who are the subject of this appeal have been in foster care since March 2002. T.K.H., who was born on March 28, 2002, was placed directly from the hospital into a foster home and has been with the same foster mother since that time. She wishes to adopt him. As we have stated, the mother, K.S.E., does not contest on appeal the termination of her parental rights to T.K.H. T.N.W., who was born on October 18, 1995, was seven-years-old when he was placed in foster care. Unfortunately, he has been placed in eight or nine separate foster homes. Although on some occasions he has stated that he wished to be reunited with his mother, his most recent position has been a wish to be adopted, and his foster mother wishes to adopt him.

Dr. Sigafoos conducted a parent-child bonding evaluation on April 30, 2004 between K.S.E. and T.K.H. He concluded that K.S.E. could not provide nurturing, protection, stability and guidance. He stated, "[t]he child will suffer a grief and separation reaction if removed from his current caregiver (the foster parents), and the client does not have the capacity to help the child to recover from this loss. The child will suffer serious and enduring harm." He concluded there were no positive factors involved with parental reunification and indicated the following negative factors: "Risk of harm to child is high in that the client is not cognizant of safety needs of child. Unstable in that elements of consistency, continuity, predictability and reliability were absent."

On April 30, 2004, Dr. Sigafoos conducted a foster parent-child bonding evaluation between T.K.H. and his foster parents. He concluded the foster parents can provide nurturing, protection, stability and guidance. He stated that the termination of the biological parental rights would have no negative factors. He further opined that terminating the biological parental rights would have the following positive factors: "The nurturing needs of the child can be met. Reduction in the risk of harm and an increase in safety to the child. Stability can be brought to the child to insure [sic] a consistent home life exists that is predictable, is continuous and reliable."

K.S.E. argues that the trial judge erred by finding that the termination of her parental rights to T.N.W. would not do more harm than good. More particularly, she argues that the judge erred by applying to T.N.W. findings of the bonding evaluation that pertained to T.K.H. She argues that the judge in effect extrapolated those findings and assumed without basis that they were applicable to T.N.W.

We do not agree. The Division presented overwhelming evidence of K.S.E.'s inability to parent her children, primarily as a result of her psychological and psychiatric infirmities and persistent untreated drug addiction. The application of some aspects of the bonding evaluation with T.K.H. to T.N.W. was only a part of the basis upon which Judge Strelecki found prong four satisfied as to K.S.E. In noting Dr. Sigafoos's findings of negative factors in K.S.E.'s bonding evaluation, namely that K.S.E. was not cognizant of the safety needs of the child, and was unstable in that the elements of consistency, continuity, predictability and reliability were absent, the judge believed that "the characteristics that are laid out here and the guidelines that [Dr. Sigafoos] follows with regard to this examination that he made clearly indicate to me that the negative factors with regard to [T.K.H.] would also be negative factors with regard to the other two children." We agree with that conclusion.

The judge then stated:

Anyway, what I'm saying in an inarticulate way is under our court system there is a limit to the amount of time that DYFS can spend in attempting to reunite a family . . . . "The emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious permanent placement to promote the child's well-being.["] [(quoting N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004)).] Accordingly, when DYFS' objective is reunification and services are offered it is foolhardy for any parent to resist, refuse or retard.

In addition to considering the bonding evaluation, the judge also considered K.S.E.'s repeated failures at substance abuse treatment and the fact that T.N.W. had been in foster care for three years. The need for permanency and stability were properly considered as important factors in making the ultimate determination of whether termination of K.S.E.'s parental rights would not do more harm than good. We find no error in the judge's analysis and we are satisfied that her conclusion that this prong was satisfied by clear and convincing evidence is supported by the record.

T.H. argues that the trial court focused exclusively on the harm caused to T.K.H. by his mother, K.S.E., and failed to find that T.H. caused the child any harm. He argues that because T.K.H. was placed in foster care immediately after his birth he was not given an opportunity to parent his son. However, the record evidence supports the finding that T.H. caused harm to T.K.H. by failing to plan for him, failing to cooperate with court ordered services, continuing to abuse drugs, and failing to find suitable housing. As stated, T.H.'s plan was essentially that the child should be returned to K.S.E., even after T.K.H. knew or should have known that K.S.E. was not rehabilitating and was not a suitable parent.

With respect to the second prong, T.H. argues that he "indicate[d] a willingness to obtain substance abuse treatment and to comply with any recommendations made by the Division." He argues that the trial court failed to cite how DYFS had proved by clear and convincing evidence that he was unwilling or unable to eliminate the harm facing T.K.H. The trial judge rejected this contention. She stated:

[W]ith regard to [T.H.], he went to none of the required evaluations. He did not go to the DNA testing. He did not go to the psychological evaluation. Did not go to a bonding evaluation and did not go to the evaluation with regard to drug abuse.

Well, of course, we don't need much of an evaluation, because he just continues on his merry way with his use of cocaine. So that it's very difficult to imagine what is in his mind when he comes to court on a regular basis, because he does appear regularly, and indicate that he does not want his parental rights terminated. But he offers no acceptable plan, nor does he make any effort to cure the problem that would prevent a reunification with his child. Because obviously it's detrimental for him being a regularly [sic] user of cocaine to have custody of any child.

Now, I would also like to say that he attended regularly the visitations and that his conduct during those visitations was found to be appropriate. So that during the short periods of time that he spends with his son he did not conduct himself in a way that was inappropriate. And I've already placed on the record that one occasion when he was there with [K.S.E.] and she behaved inappropriately he told her to calm down and do what she was asked to do.

So, there is some measure here of a trying or a willingness to try to do something, but then, well, you know, he seems to me to be alert and aware of his surroundings, know what's happening. So, I just have to conclude that he is unwilling. That he prefers to be able to use cocaine over the right to have his son reunified with him.

We are satisfied that the judge's analysis and conclusion are supported by the record.

Finally, T.H. argues that the fourth prong was not satisfied. He argues that DYFS failed to clearly and convincingly establish that the termination of his parental rights to T.K.H. will not do more harm than good. He argues that the trial judge erred by placing the need for permanency over the valued relationship between a parent and child. Specifically, citing In re Guardianship of J.C., 129 N.J. 1, 19 (1992), he argues that "the child's separation from the foster parents must be shown to threaten 'serious and enduring emotional or psychological harm.'" We find this argument without merit. The evidence here conclusively established that T.K.H. is bonded to his foster parents. The evidence, corroborated by the judge's interview with T.K.H., clearly establishes that this young child is thriving in the home in which he is expected to be adopted. T.H. has offered no viable alternative. These circumstances, combined with the overriding need for stability and permanency, clearly support the judge's finding that prong four was satisfied.

 
Affirmed.

(continued)

(continued)

14

A-1341-04T4

RECORD IMPOUNDED

October 13, 2005