NEW JERSEY DIVISION OF YOUTH & FAMILY SERVICES v. S.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0872-05T40872-05T4

NEW JERSEY DIVISION OF YOUTH

& FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.S.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF

Z.A.S.,

A Minor.

______________________________________________________

 

Submitted July 24, 2006 - Decided August 8, 2006

Before Judges C.S. Fisher and Grall.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-166-05.

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

Zulima V. Farber, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Maureen Bull, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, attorney for minor (Cynthia DiLeo, Law Guardian).

PER CURIAM

Following a trial, the parental rights of S.S. to her child, Z.A.S., were terminated. S.S. appeals, arguing that there was insufficient evidence to support that determination. We affirm.

S.S. had a long history with the Division of Youth and Family Services (Division) by the time this action was commenced. She had previously given birth to five other children, all of whom were removed from her custody. The Division received thirteen referrals, concerning drug abuse, lack of proper supervision and lack of housing regarding these children since 1990.

Z.A.S., the sixth child of S.S., was born on May 15, 2004. S.S. stipulated in this action that Z.A.S. was born positive for methadone and suffered from withdrawal symptoms.

S.S. named H.P. and Q.J. as persons who may have been the child's natural father. Q.J. was excluded by way of a blood test; an order to that effect was entered in this action prior to trial. When H.P. did not appear in this action, default was entered against him.

A trial took place in this matter on August 15, 16 and 24, 2005. On those dates, the Division presented the testimony of Dr. Leslie Williams, a board-certified psychologist, and two Division workers, Dulce Pedro and Robin Harris. S.S. neither testified nor presented witnesses or evidence on her own behalf. Judge R. Benjamin Cohen rendered a thorough oral decision from the bench and entered judgment granting guardianship of Z.A.S. to the Division on August 24, 2005.

In reaching that determination, Judge Cohen correctly applied N.J.S.A. 30:4C-15.1, which mandates that, in order to terminate parental rights, the Division is required to 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).

Judge Cohen found the Division's proofs regarding each of these factors to be clear and convincing. In describing the evidence that supported the first prong of this test, Judge Cohen indicated that S.S.'s relationship with Z.A.S. "must be viewed within the context of [her] 15 year history with the Division," which he outlined as follows:

Sadly that history is one of [S.S.'s] long and well documented problem with substance abuse which has plagued her throughout her adult life and continues to do so. Undoubtedly that substance abuse has contributed to the approximately 13 refer-rals to the Division in which her neglect and abuse of her children has been estab-lished repeatedly over the years. Every single one of her children have had to be removed from her care and custody and have remained out of her physical custody since approximately 1995, ten years ago.

Before that time at least one of her own children had been born drug addicted, at least two of her children suffered burns while in her care and custody. On several occasions [S.S.] left her young children alone, once a fire breaking out in their apartment in a filthy, unhealthy environment.

Three of her children are in long term foster care, one lives with a relative and one has been adopted following [S.S.'s] parental rights having been involuntarily terminated. [Z.A.S.], . . . [the] youngest child has never been in her care or custody for even one day.

[S.S.] has been arrested 15 times during that period and incarcerated on numerous occasions. She has a long history of being unable to maintain a safe, stable home and of being unable to obtain and hold gainful employment.

Additionally, she has mental health problems. The unrefuted expert testimony is that she remains unfit to parent [Z.A.S.], with whom she has no parent/child bond.

Her prognosis for improving with regard to her ability to parent is, quote, guarded . . ., close quote.

[Z.A.S.] was born addicted to methadone and had to go through withdrawal after birth. [S.S.] has -- had no prenatal care during her pregnancy with [Z.A.S.] and had tested positive for drugs herself both during her pregnancy and after giving birth to [Z.A.S.]. Two months after [Z.A.S.'s] birth Turning Point, the drug program to which the Division had referred [S.S.], advised the Division that [S.S.] refused to detox off methadone despite Turning Point's recommendation that she do so . . . and enter a long term residential drug treatment program, which [S.S.] also had not done. Hence, [S.S.'s] drug dependence continues to date. As recently as July '05, one month before trial, [S.S.] tested positive for benzodiazepine. She remains unemployed existing on welfare in a subsidized apartment. She has offered no concrete plans to the Division for long -- for how she would care for [Z.A.S.].

[S.S.] has had more than ten years to, quote, get herself together, close quote and has failed to do so. As Dr. Williams testified, quote, past behavior is the best predictor of future behavior, close quote.

As for the second prong, Judge Cohen found that S.S. was unable and unwilling to provide a safe and stable home. He held that Z.A.S. "needs permanency and she needs it now" and that any further delay in her placement will cause "additional harm, especially since the prognosis [for S.S.] ever being able to provide her a safe, stable home and the effective parenting that she so desperately needs is poor at best, guarded to poor." He observed that Z.A.S. had been, for the previous six months, in a safe, stable and loving foster home where "she is thriving," and that her foster parents were committed to adopting her. N.J.S.A. 30:4C-15.1 contains a strong public policy in favor of permanency. In re Guardianship of K.H.O., 161 N.J. 337, 357-58 (1999). Children have a "paramount need" for permanent and defined parent-child relationships. In re Guardianship of J.C., 129 N.J. 1, 26 (1992).

As for the third prong, Judge Cohen observed that the Division was previously relieved by court order from its obligation to make reasonable efforts to provide services to help correct the circumstances that led to the placement of the child outside the home. Regardless, Judge Cohen also found that the Division established by clear and convincing evidence that reasonable efforts were made.

As for the fourth prong, Judge Cohen found by clear and convincing evidence that the termination of S.S.'s parental rights would not do more harm than good. Indeed, he found that the termination of parental rights would cause no harm at all to Z.A.S. The record overwhelmingly establishes that conclusion.

The applicable standard of appellate review requires that we defer to a trial judge's factual findings when they are based on credible evidence in the record and unless we are convinced those findings 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); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). After careful review, we conclude that the record contains clear and convincing evidence to support the trial judge's findings and that the judge applied the correct legal standards in terminating defendant's parental rights.

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

 
Affirmed.

S.S.'s five other children are Z.D.S. (born on April 23, 1988), Z.R.S. (November 15, 1989), A.A.S. (February 13, 1991), M.T.S. (January 2, 1993), and S.N.S. (November 27, 1996). The oldest three were placed in long term foster care in 2002 pursuant to proceedings in Docket No. FG-09-186-02. M.T.S. is in the care of his natural father. And the Division obtained guardianship of S.N.S. in 2000 in Docket No. FG-09-148-00; S.N.S. has since been adopted.

(continued)

(continued)

7

A-0872-05T4

RECORD IMPOUNDED

August 8, 2006