DIVISION OF YOUTH AND FAMILY SERVICES v. S.G.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3732-04T43732-04T4

DIVISION OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.G.,

Defendant-Appellant.

_______________

IN THE MATTER OF THE GUARDIANSHIP OF S.P.

__________________________________________

Submitted: September 13, 2005

Decided: September 22, 2005

Before Judges Kestin and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FG-09-37-01.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lindsay A. Smith, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for S.P. (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

S.G. appeals from a judgment for guardianship entered on February 10, 2005, terminating his parental rights in respect of S.P. The judgment also terminated the parental rights of B.P., the biological mother of the child. B.P. did not appear at trial and had previously surrendered her parental rights.

In every instance in which termination of parental rights is sought, a balancing judgment is required between competing factors. The balance implicates fundamental rights and interests of the parents and the children, as well as critical governmental concerns.

The right of parents to enjoy a relationship with their children is of constitutional dimension. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)); In re Adoption of Children by G.P.B. Jr., 161 N.J. 396, 404 (1999); Adoption of Children by L.A.S., 134 N.J. 127 (1993); New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591 (1986). Parents have a fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). Both the federal and State Constitutions protect the integrity of the family unit. Stanley, supra, 405 U.S. at 651, 92 S. Ct. at 1212-13, 31 L. Ed. 2d at 558-59; A.W., supra, 103 N.J. at 599.

The law presumes that parents will act to promote the best interests of their children. See Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). However, "experience and reality may rebut what the law accepts as a starting point . . . ." Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119. The incidence of child abuse and neglect cases demonstrates that some parents may act in ways that undermine the interests of their children rather than advance them. Ibid.

Government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Id. at 603, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119 (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State as parens patriae may act to protect children from serious physical and emotional harm. This may require partial or complete severance of the parent-child relationship. Yet, "[f]ew forms of state action are both so severe and so irreversible." Santosky, supra, 455 U.S. at 759, 102 S. Ct. at 1398, 71 L. Ed. 2d at 610.

When a biological parent resists termination of his parental rights, the courts' function is to decide whether that parent has the capacity to eliminate any harm the child may already have suffered, and whether that parent can raise the child without inflicting any further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The focus of our inquiry is not only whether the parent is fit, but also whether he can become fit to assume the parental role within time to meet the child's needs. Ibid. "The analysis of harm entails strict standards to protect the statutory and constitutional rights" of the biological parent. Ibid. The burden rests on the party seeking to terminate parental rights "to demonstrate by clear and convincing evidence" that the risk of "serious and lasting [future] harm to the child" is sufficiently great as to require severance of parental ties. Ibid.

The balance between fundamental parental rights and the State's parens patriae responsibility is promoted by the law's best-interests-of-the-child standard. K.H.O., supra, 161 N.J. at 347. Under that principle, parental rights may be severed when:

(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 [D]ivision [of Youth and Family Services] 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-15.1a.]

See also A.W., supra, 103 N.J. at 604-11.

These tests are inter-related and overlapping; they are designed to identify and assess what may be necessary to promote and protect the best interests of the children. K.H.O., supra, 161 N.J. at 348. The considerations involved in determining parental unfitness are "extremely fact sensitive" and require particularized evidence that addresses the specific circumstances of the individual case. Ibid. (quoting L.A.S., supra, 134 N.J. at 139).

In reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determinations and the judge's "feel of the case" based upon his or her opportunity to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We are not to disturb the judge's findings of fact unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). And, the conclusions that flow logically from those findings of fact are, likewise, entitled to deferential consideration on appellate review. See Cesare, supra, 154 N.J. at 412; Rova Farms, supra, 65 N.J. at 484.

In this matter, Judge De Bello made detailed findings and conclusions in a comprehensive oral opinion rendered on February 10, 2005, and, on that day, entered the judgment appealed from. The facts he found are essentially undisputed. S.G.'s challenge to the judgment focuses on the judge's evaluation of those facts in the context of the four-part test of N.J.S.A. 30:4C-15.1a and A.W., supra, 103 N.J. at 604-11.

The child, S.P., was born on June 29, 1997. The parents had a history with the Division of Youth and Family Services (DYFS or Division) involving drug abuse and child neglect. Following some period of no contact with this family, the Division, in September 1998, received new referrals involving drug abuse and neglect. Investigation of the matter resulted in a placement agreement for the child S.P. on December 10, 1998, in which S.G. participated.

S.G. has been incarcerated since February 2000 as the result of a criminal conviction. He is scheduled for release in 2006. S.G. conceded that some rehabilitative efforts will be necessary following his release before he will be equipped to care for the child adequately; and that as much as two years of such effort may be required.

Apart from the occasion of a bonding evaluation, S.G. has not had any visitation with his son S.P. since before his incarceration. The mother, B.P., has also had no visitation for several years.

The trial court's detailed findings and conclusions as to each prong of the interrelated four tests are well supported by the credible evidence. The harm to the child from a "lack of permanent and stable home" is manifest. The judge found that serious impediments exist regarding S.G.'s ability to remedy, within a reasonable time, the harm that has been visited on the child. He also found substantial deficiencies in S.G.'s plans for providing a safe and stable home for the child. Even though there was no prospect of adoption in the very near future, the lack of any substantial relationship between S.G. and the child, by reason of S.G.'s extended incarceration since the child was a toddler to this time, augured for "serious and enduring emotional or psychological harm to the child," N.J.S.A. 30:4C-15.1a(2), if his situation was not stabilized as soon as possible. We discern no basis, within the bounds of the principle of deference to trial court findings and conclusions, for rejecting these determinations.

We have been given no good reason, either, to second-guess the trial court's discretionary evaluation that, notwithstanding the Division's plan for select home adoption by reason of the expressed desire of the foster parents that the child be removed from their home in the near future, termination of parental rights would not be more harmful to the child than beneficial. Judge De Bello addressed that issue as follows:

Would termination under the present circumstances do more harm than good? The plan put forth by the Division is not one that has not been contemplated. It is a plan select home adoption and it's a plan that ordinarily termination should not, where avoidable, termination should not occur where there's not an adequate existing plan but in A.W. the court mentions there will be circumstances when the termination of parental rights must proceed to permanency plan.

I believe this is one of those cases. The issue really becomes as far as the court's focus, which plan has a greater likelihood of giving [the child] permanency? Is it a plan which contemplates a two year wait under circumstances that would have to materialize for it to be appropriate to return [the child] to [S.G.]?

Even cognizant of the fact that there is a relationship between [the child] and [his brother] and cognizant of the fact that a severance of ties with [S.G.] and [B.P.], could or would most likely result in a severance of [the child's] relationship with [his brother, w]hich plan is more likely to become viable? [S.G.] is at the beginning of a long road. It's uncertain whether he's going to the halfway house. It's uncertain whether he would get into the mutual agreement program. There's a sixty day assessment and thereafter Dr. Friedman says it's two years before we know whether according to him, the abundant problem of drug abuse is addressed including the personality traits which he identified which could cause relapse, impulsive behaviors, or is it more likely that some permanent plan can be obtained for [the child] with a select home adoption and with all the pitfalls and/or delays and/or difficulties in such a placement.

By virtue of the testimony today, the testimony in the case and the evidence in the case, the potential for a viable plan as presented by [S.G.] and I would add even the plan he presents while recognizing it may not have been something with a lot of forethought before he testified to it, but at least what he did testify to with regard to [the child] being in an early breakfast program, having [the brother] join that family unit, runs contrary to what Dr. Nadelman says [the child] needs. So assuming that he could parent two years from now, that plan would be inappropriate. Would the assistance of his sister be there when she's not here in court either or wasn't there before to say I'm there, I'll do what I can?

Would [the child] miss opportunities in select home adoption languishing for two years waiting and seeing if [S.G.] can complete the turn-around and come up with a plan consistent with [the child's] needs or can he find or be adopted through select home by parents who have been screened, aware of his needs, assessed to be able to take care of those needs and perhaps even be willing to allow him to visit with [his brother]?

By clear and convincing evidence I'm satisfied that the fourth prong by the Division has been established. It would not do more harm than good to terminate the rights of [S.G.] and [B.P.] to [the child].

The plan of select home adoption holds more hope for a permanent relationship, one not subject to the speculation or hope of a complete lifestyle change for [S.G.] and accordingly I would find that all four of the prongs of the best interest test as they relate to both [B.P.] and [S.G.] have been proven by clear and convincing evidence and accordingly I would enter a judgment terminating their rights consistent with this opinion.

Given the evidentiary record developed in the matter, and the trial court's findings, the arguments advanced to challenge these conclusions are unpersuasive.

The remaining issue raised by S.G. is that "this matter should be remanded for a new guardianship trial because representation of both [parents] by assistant deputy public defenders was a conflict of interest." In the extant circumstances, that argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). When faced with that question, the trial court concluded that no prejudice existed because the parents did not have competing interests and because S.G. was the only parent offering himself as a resource for the child. We are in substantial agreement with that reasoning.

 
The judgment is affirmed.

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A-3732-04T4

RECORD IMPOUNDED