NEW JERSEY DIVISION OF YOUTH v. G.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2859-04T42859-04T4

NEW JERSEY DIVISION OF YOUTH

and FAMILY SERVICES,

Plaintiff-Respondent,

v.

G.R.

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF G.I.R., a MINOR.

_________________________________

 

Submitted October 6, 2005 - Decided

Before Judges Wefing and Wecker

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Hudson County, FG-09-104-04.

Yvonne Smith Segars, Public Defender,

attorney for appellant (William J. Sweeney,

Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney

for respondent New Jersey Division of Youth

and Family Services (Andrea M. Silkowitz,

Assistant Attorney General, of counsel

and on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian for the minor (Edward B. Marable, Jr.,

Deputy Public Defender, of counsel and on the

brief).

PER CURIAM

Defendant, G.R., appeals from an order terminating his parental rights with respect to his biological son, G.I.R., born April 26, 2002. The baby was released directly from the hospital to his present foster mother. The birth mother, H.R., who has not had custody of any of her twelve older children, was a co-defendant at trial. It appears that she has not appealed the decision terminating her parental rights with respect to G.I.R. Both biological parents have histories of drug abuse and criminal activity; both served time in custody after G.I.R.'s birth.

This father has been shown to have no ability to care for the child, and has admitted so in the past. He has one relative whom he suggested as a caretaker, but that person, defendant's uncle, already has custody of defendant's older son, and was unable to care for another child.

Defendant previously expressed his willingness to surrender parental rights in favor of the birth mother's friend, D.N. D.N. volunteered to serve as a foster parent and even to adopt G.I.R., when the child was about one-and-one-half-years old. G.R. complains, with some reason, that the Division of Youth and Family Services' investigation of D.N. as a potential foster mother was unreasonably delayed for many months. Nonetheless, its determination that she was not an appropriate choice under the circumstances is unassailable. Most critical is the fact that by the time D.N. was suggested as a foster parent, the child was clearly bonded to his existing foster mother. When the Division did investigate D.N. as a potential caretaker, the bonding between the child and his now pre-adoptive mother was sufficiently strong that as the Division's expert testified, D.N. could not have alleviated the psychological trauma that G.I.R. would have experienced as a result of removal from his foster parents, who have agreed to adopt G.I.R. D.N. was not a relative, and defendant was not entitled to choose a caretaker under the circumstances.

The conditions for termination pursuant to Division of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), have been codified at N.J.S.A. 30:4C-15.1. In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999); In re Guardianship of J.C., 129 N.J. 1, 8-9 (1992); In re the Adoption of a Child by P.S., 315 N.J. Super. 91, 110-11 (App. Div. 1998). N.J.S.A. 30:4C-15.1. provides:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L.1951, c. 138 (C. 30:4C-15) if the following standards are met:

(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.

To support a termination of parental rights, the Division must satisfy the four statutory elements of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. A.W., supra, 103 N.J. at 611-12. These four elements, however, are "[n]ot discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's bests interests . . . . [P]arental fitness is the key to determining the best interests of the child." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999) (citing In re the Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

At the conclusion of the trial, Judge Lisboa meticulously explained his findings and conclusions as to both parents, pursuant to the four prongs of N.J.S.A. 30:4C-15.1a, in a detailed oral decision on November 19, 2004. In brief, as to the first prong, he said:

[B]oth defendants have failed to perform any parenting functions and have failed to provide any nurturing care or support to the child . . . From the time child has - was born the parents' contact with the child has been scarce. For most of [the child's] life he has remained in foster care. This constitutes parental harm to the child arising out of the parental relationship . . . .

As to the second prong, Judge Lisboa opined:

During the direct and cross-examination Dr. Kanen fielded many questions and he didn't waver. Therefore, this Court accepts Dr. Kanen's conclusions because of both [H.R.'s] and [G.R.'s] severe personality problems, longstanding history of alcohol and drug abuse, their long history of unstable lifestyle, not having viable long-term goals or plans for the care of their son, that both parents are unable to provide an effective, stable home environment . . . at the present time or in the near future . . . this Court finds Dr. Robert Kanen a very credible witness and his testimony very persuasive, that separation of the child from his foster parent would cause serious and enduring emotional harm or psychological harm to the child. Similarly, that by placing the child with [D.N.], who he has no

relationship with whatsoever would also cause harm to the child . . . .

With respect to the third prong, Judge Lisboa explained:

Accordingly, after reviewing the totality of the evidence and listening to the witnesses this Court is satisfied that the Division did prove by clear and convincing evidence that the defendants . . . were provided with services to help them to correct the circumstances which lead to the placement of their . . . child . . . out of their home. However, the evidence showed that because of the defendants' repeated incarcerations, drug addiction lifestyles, they were not able to avail themselves of these services . . . .

As to the fourth prong, Judge Lisboa noted:

After listening to the testimony of the defendants and reviewing all of the evidence this Court finds that both parents have not had - have had minimal contact with their child over the years due to their incarceration. You don't have to be a rocket scientist to conclude that the child does not know his parents very well. Sporadic visits that the parents have had cannot be equated with the loving and nurturing environment that the foster parents have been providing for the last two and a half years . . . the child . . . would suffer greatly if, if wrenched from his home and from those with whom he loves as parents . . . .

We give deference to "'the factual findings and legal conclusions of the trial judge unless [the court is] convinced that [the findings and conclusions] are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" In the Matter of the Adoption of a Child by P.F.R., 308 N.J. Super. 250, 255 (App. Div. 1998) (quoting Rova Farms Resort Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

There is much to be desired about the Division's handling of this case. But none of the agency's shortcomings here support defendant's equitable estoppel argument, nor do they affect the reliability of the trial judge's findings and conclusions. The record clearly and convincingly supports the judge's findings and conclusions, terminating G.R.'s parental rights in accordance with the required statutory elements as set forth in N.J.S.A. 30:4C-15.1.

 
Affirmed.

(continued)

(continued)

7

A-2859-04T4

RECORD IMPOUNDED

November 1, 2005