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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1968-04T41968-04T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

T.B.

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF T.A.B.

Minor.

______________________________________________________

 

Submitted September 20, 2005 - Decided

Before Judges Kestin and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FG-13-72-04B.

Yvonne Smith Segars, Public Defender, attorney for appellant T.B. (Michael C. Kazer, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Acting Attorney General of New Jersey, attorney for respondent New Jersey Division of Youth and Family Services (Michael J. Haas, Deputy Attorney General, of counsel; Scott J. Kieserman, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor T.A.B. (Christopher A. Huling, Assistant Public Defender, of counsel and on the brief).

PER CURIAM

Defendant T.B., the biological father of T.A.B., appeals from an order terminating his parental rights. The biological mother, Y.T.C., has not appealed the termination of her parental rights. The law guardian for the child filed a brief advocating that the trial court's decision be affirmed. We have carefully considered defendant's arguments in light of the record and applicable law and for substantially the reasons stated by Judge Lerner in his decision rendered from the bench on October 15, 2004, we affirm.

The child, T.A.B., was born on October 1, 1999, in Neptune New Jersey. He was drug exposed in-utero and born at twenty-nine weeks gestation. He weighed three pounds at birth and suffered complications including apnea, bardycardia, fetal alcohol syndrome, neonatal sepsis, hyperbilirubinemea, anemia, retinopathy of prematurity, gastroesophageal reflux, cholestasie and pulmonary stenosis. T.A.B. was initially placed in a foster home for medically fragile children.

After his medical condition was stabilized, T.A.B. was placed with D.H., a maternal aunt of Y.T.C.. In June 2002, D.H. requested that T.A.B. be removed from her custody due to her inability to continue to provide care for him. He was then placed in St. Clare's Home for Children for about a year. During that time, T.B. lived about a mile away but visited T.A.B. only about five times. Y.T.C. identified as a potential family placement source her paternal aunt D.D. and D.D.'s husband, K.D., who lived in Georgia. Defendant T.B. identified his mother, P.H., who also lived in Georgia, as a potential placement source. Both placement sources were found acceptable, and on July 2, 2003, T.A.B. was placed in foster care with D.D. and K.D. in Georgia.

Defendant has four other children who lived with relatives in Georgia, but two of those children, a thirteen year old son and a twelve year old daughter, currently live with defendant in an apartment in Asbury Park. The son has lived with defendant for approximately five years; the daughter has been in defendant's custody for less than one year. The case worker testified that defendant is fit to be the parent of the two children presently in his custody. T.A.B, now five years old has been with the foster parents in Georgia since July 2, 2003, and has never been in T.B.'s custody.

On appeal T.B. presents the following arguments for our consideration:

POINT I: THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE THE SECOND AND FOURTH PRONGS OF THE BEST INTERESTS TEST BY CLEAR AND CONVINCING EVIDENCE.

A. THE DEFENDANT WAS WILLING AND ABLE TO OVERCOME THE HARM TO T.A.B. UNDER THE SECOND PRONG BECAUSE HE COULD BECOME PARENTALLY "FIT" WITHIN SIX MONTHS.

B. SINCE THE DEFENDANT CAN BECOME PARENTALLY FIT WITHIN TIME TO MEET THE NEEDS OF T.A.B., THE FACT THAT HE WAS NOT AS AFFLUENT AS THE CURRENT CARETAKERS DOES NOT CONSTITUTE CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD UNDER THE FOURTH PRONG.

Natural parents have a fundamental liberty interest to raise, care for and maintain custody of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). The State through its parens patriae power in acting to protect a child from serious harm, either physically or emotionally, can terminate one's parental rights, either partly or entirely. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

"When the child's biological parents resist the termination of their parental rights, the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." Ibid. Our inquiry, however, is not to focus on the natural parents' adequacy and fitness, but instead whether the parents can provide the nurture and affection the child requires without any ensuing harm to the child. New Jersey Div. of Youth & Family Services v. A.W., 103 N.J. 591, 607 (1986).

It is not enough to terminate parental rights through a mere "showing that a child would be better off with an adoptive parent rather than with the biological parent." In re Adoption of Children by G.P.B., 161 N.J. 396, 404 (1999) (citations omitted). Generally, parents who have maintained a relationship with their children will not have their rights terminated. Ibid. "Conversely, when an adoptive parent has provided the child with a permanent home, courts often protect the child from interference by a biological parent with whom the child has no relationship." Ibid. (citing E.E.B. v. D.A., 89 N.J. 595, (1982); Sorentino v. Family and Children's Society of Elizabeth, 74 N.J. 313 (1977)).

The burden of proof is placed on the moving party, who is seeking to have the parental rights terminated, "to demonstrate by clear and convincing evidence" that "serious and lasting harm to the child" will continue unless parental ties are severed. J.C., supra, 129 N.J. at 10 (citing Santosky, supra, 455 U.S. at 768, 102 S. Ct. at 1402, 71 L. Ed. 2d at 616-17). The best interests of the child standard is implemented to balance the rights of the natural parents with the State's responsibility as parens patriae. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). The standard requires that the following criteria be met by clear and convincing evidence in order to terminate parental rights:

(1) The child's health and development have 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 foster 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.

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

These four criteria overlap one another in order to "provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348 (1999).

A determination of whether a parent is fit or unfit is an "extremely fact sensitive" requiring "particularized evidence" addressing "the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)). The standard of review of a trial court's findings and conclusions is one of deference to the court's evaluations of credibility and its "feel of the case" given the court's opportunity to observe the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). The court's findings will not be overturned unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

Judge Lerner reached his decision in this case after a thorough and comprehensive review of the evidence in light of the applicable law. Defendant's assertions that the court's findings and conclusions lack evidential support fail. The court's decision was consistent with the evidence and is entitled to deference.

The court found persuasive the results of Dr. Sigafoos's psychological evaluation of T.B. where he concluded that T.B.:

has numerous psychopathological disorders and conditions that interfere with his ability to effectively parent his children, and pose a significant risk of harm to the children if untreated.

Citing to the doctor's evaluations, the trial court concluded the second prong was satisfied, stating:

Prognosis for this client [T.B.] is guarded. The rooted character of the client's psychopathological disorders will be difficult to treat. The efficacy of treatment will be affected by the client's lack of insight, lack of motivation, and lack of commitment to change.

Testing reveals the client has problems with adaptability and appropriate spontaneity due to an impaired ability to change mental set. This fixed way of seeing the world will be a significant obstacle to treatment success. If the client is cooperative and compliant with treatment recommendations, it is anticipated that progress in therapy, which should include a reduction in clinical symptoms should take place in approximately six months.

It would appear then that in accordance with Dr. Sigafoos, if all went well, he would not be able to parent from a psychological standpoint for a period of at least six months.

This child has been out of his care for four and three quarter years. And six more months is just another inappropriate delay. Inasmuch as a secure bond exists to the foster family . . . would become even more secure, so that serious and enduring harm to the child previously described by Dr. Sigafoos would even be greater making it an impossibility for the weaning process of the child to rejoin a father, even if he were successful.

The trial court also found prong four satisfied due to the inconsistencies in defendant's assertions, his criminal background as a drug dealer, and that drugs are still prevalent in defendant's life, as evidenced by his recent failure of a drug test on March 18, 2004. Further, the trial court observed that defendant has never had a bonded relationship with T.A.B. The court, therefore, concluded that "the only harm presented [as to prong four] is if the child would be removed from his mommy and daddy, the foster parents, the only true family he has ever lived with since being born. Thus, according to the court, the termination of defendant's rights would not do more harm than good.

We find no reason to disturb the trial court's findings and conclusions of law. Defendant's claim that the trial court's decision was based on the respective parties' finances is unmeritorious and does not warrant discussion in a written opinion. R. 2:11-3e(1)(E).

 
Affirmed.

(continued)

(continued)

9

A-1968-04T4

RECORD IMPOUNDED

October 31, 2005