IN THE MATTER OF THE GUARDIANSHIP OF J.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3712-04T43712-04T4

A-4112-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

L.B. and I.F.,

Defendants-Appellants,

IN THE MATTER OF THE

GUARDIANSHIP OF

J.B.,

A Minor.

_______________________________________________________

 

Submitted September 19, 2005 - Decided

Before Judges Alley and C.S. Fisher.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-209-05.

Yvonne Smith Segars, Public Defender, attorney for appellant, L.B. (William J. Sweeney, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant, I.F. (Michele A. Adubato, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Patrick DeAlmeida, Deputy Attorney General, of counsel; Scott J. Kieserman, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, attorney for minor child, J.B. (Nancy E. Scott, Assistant Deputy Defender, Law Guardian, on the brief).

PER CURIAM

Following a trial, Judge Salvatore Bovino terminated the parental rights of defendants L.B. and I.F. to their four-year old daughter, J.F. The basis for this decision was set forth in a comprehensive oral decision and memorialized in a judgment entered on February 8, 2005.

L.B. and I.F. appealed, arguing that the decision to terminate their parental rights was not supported by clear and convincing evidence. We reject these contentions and affirm.

N.J.S.A. 30:4C-15.1 requires that the Division of Youth and Family Services (the Division) prove, by clear and convincing evidence, that:

(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;

(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.

See also N.J. Div. of Youth & Fam. Serv. v. A.W., 103 N.J. 591, 604-05 (1986).

The standard of appellate review in such matters requires that we give deference to the trial judge's factual findings, which will not be disturbed unless we are convinced that 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). In examining such findings, we recognize that the four factors are not always discrete but, instead, often overlap.

In this case, Judge Bovino stated that he was clearly convinced that the Division had demonstrated the presence of each of these factors as applied to both parents. After thoroughly summarizing the evidence, Judge Bovino set forth the basis for his determination to terminate the parental rights of I.F. and L.B., which included, in part, the following:

In this case we have two parents, [L.B.], who has a criminal record and [will be] deported back to the Dominican Republic. He has expressed . . . to the Division his desire to have the child returned with him to the Dominican Republic.

[I.F.'s] testimony is rather rambling, not responsive. . . . [P]erhaps the most demonstrative part of the testimony was when [her attorney] was trying to ask her if she would be willing to undergo treatment, medication to stabilize her life and she went on some discourse about ladies having children and single parents having children [that was] [h]ardly responsive to his questions.

. . . .

The first [statutory] prong requires a showing that . . . the child's health and development has been or will continue to be [endangered] by the parental relationship. A parent's withdrawal of solicitude, nurture and care for an extended period of time is a harm that endangers the health and development of a child.

Obviously, [L.B.], based upon his incarceration, has been unable to furnish any type of care for his child. [I.F.] suffers from mental health issues that interfere[] with her ability to parent the child.

Additionally the focus of the harm is what the parent child relationship would do over a period of time to the child's health and development. We have Dr. Hasson's testimony that [I.F.] has caused, will cause confusion, anxiety in the child that could lead to long term behavior problems. [Citing In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).]

The court takes into account the potential for serious psychological damage to a child that will occur if the child remains with the biological parent. [Citing A.W., supra, 103 N.J. at 605.]

At this time as I indicated, it's unclear as to the living arrangements of [I.F.]. The Division's position is that she lives in a shelter, may or may not be employed. It's her position that she works two jobs, earns approximately $1,200.00 a month, is living in a one bedroom apartment, totally uncorroborated and not substan-tiated.

Dr. Hasson's testimony is clear that she suffers from a serious thought disturbance, condition, personality disorder that would continue to cause harm to the child.

The second prong requires a showing that the parents are unwilling or unable to eliminate the harm facing the child, unable or unwilling to provide a safe and stable home for the child. Such harm may include evidence that separating the child from the foster parent would cause serious and enduring emotional or psychological harm to the child.

Again I am satisfied clearly and convincingly that [I.F.] has not been able to stabilize her life due to her underlying mental health condition.

[L.B.] has not been a part of his child's life [although] he wishes to be a part of his child's life.

We also note from Dr. Hasson's bonding evaluation that the caretaker is attached to the child, provides for all the child's needs, is sensitive to the child's needs whereas [I.F.] is not.

Dr. Hasson's report reflects that if the child was to be removed from the caretaker the child would suffer enduring harm.

Our courts recognize that children need permanency and are harmed by a lack of permanency and the association with a nurturing adult. [Citing A.W., supra, 103 N.J. at 610].

Children have a paramount need for permanent defined parent child relation-ships. In the Matter of the Guardianship of J.C., [ 129 N.J. 1, 26 (1992)].

[Even] if [I.F.] is willing to undergo appropriate psychiatric treatment, if it exists, and she could stabilize her life some time in the future, that still is not sufficient. Parents are only given a limited amount of time to correct conditions. [Citing K.H.O., supra, 161 N.J. at 358]. Children cannot afford to wait until such time that their parent may be deemed a fit caretaker. In re Guardianship of A.R.G., [ 318 N.J. Super. 323, 330 (App. Div.), certif. denied, 162 N.J. 127 (1999)].

Dr. Hasson is clear that she has been resistant to treatment and is probably not even amenable to treatment. The third prong requires a showing that the Division has made diligent efforts to provide services to help the parent correct the circumstances which led to the child's placement and the court has considered alternatives to termination of parental rights.

Alternatives to termination of parental rights would be placement of custody with the parents. I'm satisfied that's obviously not an issue. [One relative] has not followed up with the Division's request and I forgot to mention before but the maternal grandmother . . . was ruled out as a potential caretaker . . . based in part upon a prior history and also due to a medical condition.

The options that the court could consider [are] long term foster care [and] kinship guardian. If long term foster care is still an option under the statute, I'm not sure. There has been an indication that long term foster care, kinship guardian, both require as conditions precedent a finding that the child is not likely to be adopted or adoption is not feasible.

In this case based upon the child's age, the child is both likely and feasible to be adopted.

Additionally for long term foster care the age of the child might be . . . a condition precedent. The age can be waived. It's not always a crucial factor. I'm satisfied that both long term foster care, kinship guardian could not give any sense of permanency that the child is entitled to. . . .

The efforts of the Division are not measured by their success. The efforts must be assessed against the standards of adequacy in light of all the circumstances of a given case. . . . A parent who is unavailable, and I would find in this case that [L.B.] is unavailable for services due to his incarceration. When the Division located [L.B.] in July or September of 2004 he indicated that he had been incarcerated for two years. The Division has no ability to offer any type of meaningful intervention or services to an incarcerated person.

The Division has attempted to ascertain the nature, status of [I.F.'s] mental health issues. They've had numerous evaluations done on her. They have attempted to refer her to therapeutic counseling which she has resisted, refused, not recognizing that she needs assistance.

The Division has explored the maternal grandmother . . . and now today again, even though it's not sworn, [L.B.] is offering a girlfriend, not only on the eve of trial but at the end of the trial. This person was never made known to the Division. The Division should not be charged with having to search out all possible relatives or friends.

The Division has provided visitation for [I.F.] that she has not taken advantage of in any consistent, meaningful way. As I've indicated she has missed eleven out of fifteen visits between July and January.

The Division did refer her to parenting skills. She completed it. But because of her underlying mental health issues, she is unable to care for the child.

The fourth prong requires a showing that the termination of parental rights would not do more harm than good. That prong generally requires experts to testify as to the relationship of the child with a caretaker and the child with a parent. . . . Obviously no bonding evaluation was done with [L.B.], who, as far as I could tell from this record has had no contact, or if he has had contact, it would be minimal that it would not be considered a relationship that's bonded or attached.

The Division [provided] the bonding evaluation of the mother and the caretaker from Dr. Hasson, that he felt that the mother's contact with the child during the bonding evaluation was not appropriate, that she did not put the child's needs above her own and on the other hand the contact with the caretaker and the child was very affectionate, sensitive, aware of the child's needs and promoted the child's development and that removal would cause harm to the child.

I'm satisfied that termination would not cause more harm than good. It gives the child permanency that the child is entitled to. Unfortunately [I.F.] cannot furnish proper parental care for her child. I'm satisfied clearly, convincingly that the Division has established each of the four prongs. . . .

We affirm substantially for the reasons set forth in Judge Bovino's thoughtful and comprehensive decision.

 
Affirmed.

The record reflects that L.B. has since been deported to the Dominican Republic.

(continued)

(continued)

9

A-3712-04T4

RECORD IMPOUNDED

September 28, 2005