NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. T.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5346-04T45346-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.R.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF A.R.

Minor.

________________________________________________________________

 

Submitted November 29, 2005 - Decided

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FG-02-82-04.

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

Peter C. Harvey, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Delia A. Delisi, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, attorney for minor child (Karen Kleppe Lembo, Designated Counsel, Law Guardian, on the brief).

PER CURIAM

T.R appeals from a judgment of guardianship terminating his parental rights to his son, A.R., who was born on May 30, 2003. T.R. raises these arguments on appeal:

POINT ONE

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE TRIAL COURT DID NOT MAKE SUFFICIENT FACTUAL AND LEGAL FINDINGS REGARDING THE FOUR PRONGS OF THE "BEST INTERESTS OF THE CHILD" TEST. (Not Raised Below).

POINT TWO

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION WAS IN THE BEST INTERESTS OF THE CHILD.

A. THE TRIAL COURT FAILED TO GIVE MEANINGFUL CONSIDERATION TO ALTERNATIVES TO TERMINATION BY ORDERING TERMINATION EVEN THROUGH THE DIVISION HAD NOT SUFFICIENTLY INVESTIGATED PLACEMENT OF [A.R.] WITH A BIOLOGICAL RELATIVE.

B. THE TRAIL COURT ERRED IN SUMMARILY CONCLUDING THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

We have reviewed the record and we conclude that the trial judge's findings are well supported by the evidence, R. 2:11-3(e)(1)(A), and that T.R.'s appeal arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated by Judge Sween in the written decision accompanying the judgment he entered on May 12, 2005. The decision and judgment were filed on May 18, 2005. We add these comments.

Prior to A.R.'s birth, A.R.'s mother, M.B., had a long history of mental illness and a long history with the Division of Youth and Family Services (Division or DYFS). She has five other children. Two had reached adulthood and her parental rights to the other three had been judicially terminated. M.B.'s parental rights to A.R. have also been terminated, but she has not appealed.

T.R. has a long history of substance abuse, lack of stable employment and residence. He too had a prior history with DYFS. He has one other child who was born in 1992, and his parental rights to that child were terminated in 2001.

When A.R. was born, the Division immediately intervened and, by court order, A.R. was removed from his biological parents and placed in foster care on June 6, 2003. He has remained with the same foster family ever since that time and the foster mother wishes to adopt him.

After participating in some visitation, by mid-October 2003, T.R. stopped visiting with A.R. By late 2003, T.R. dropped out of sight, ceasing all communication or contact with the Division, the court, or his attorney. He resurfaced in January 2005. He then began visiting with A.R. biweekly. He acted appropriately during the visits and exhibited a warm and caring manner towards his son.

In 2003, the Division attempted to identify family members of either parent for placement, but with no success. T.R. suggested placement with his brother and sister-in-law in Colombia, South America. He provided DYFS with a telephone number, but when the case worker called, the number was not in service. T.R. provided no other information at that time. T.R. was well aware of the required procedures for placement of a child with a family member, because he had made a similar effort with his other child who temporarily resided with family members in Colombia, South America. However, those arrangements were unsuccessful, the child was returned to the United States, and the disruption and instability resulting from the experience was detrimental to the child.

In 2005, T.R. again suggested placement with his brother and sister-in-law. He furnished an address, and DYFS wrote to the brother but received no reply. T.R. complains that the letter was written in English, which his brother does not understand. We find this circumstance unpersuasive, particularly in light of the prior history with an out-of-country placement. Further, there was nothing to prevent T.R. from communicating with his brother and arranging for contact with a Division representative if there was any serious interest or potential for this placement.

T.R. admitted that at the time of trial he was not capable of parenting A.R. He did not have stable employment or living arrangements. He claimed to have been sober for several months, which the psychologist engaged by DYFS found insignificant in light of T.R.'s long history of substance abuse.

The Division's psychological expert performed a bonding evaluation and found that A.R. was bonded to his foster mother and that removal from her would cause him harm. The psychologist also performed a bonding evaluation between A.R. and T.R. He observed that A.R. responded favorably with his father, but did not relate to him as a parent. The foster parents are the psychological parents. The psychologist opined that T.R. lacked the psychological and emotional strength to raise the child on his own. The psychologist further concluded that A.R. had strong emotional ties with his foster mother and that removal from her would be extremely harmful to A.R.

"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 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.

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

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.

T.R. does not challenge the judge's findings regarding the first and second prongs. He challenges the finding on the third prong, asserting that the Division did not clearly and convincingly establish that it made reasonable efforts to place the child with his brother and sister-in-law in Colombia, South America. T.R. also challenges the fourth prong, asserting that the Division did not clearly and convincingly prove termination would not do more harm than good.

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 record supports the judge's findings that the Division established by clear and convincing evidence all four prongs of the best interest test. We will not disturb those findings on appeal. The judge properly applied the correct principles of law to his factual findings, and we find no error in the result he reached.

 
Affirmed.

(continued)

(continued)

8

A-5346-04T4

RECORD IMPOUNDED

December 19, 2005