NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.S.

 

 
NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1184-05T41184-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.S.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF

J.S.,

A Minor.

__________________________________________________________

 

Submitted March 29, 2006 - Decided April 24, 2006

Before Judges Wefing, Wecker and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Hudson County,

FG-09-253-05.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Michael C. Kazer, Designated Counsel,

of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for

respondent (Andrea M. Silkowitz, Assistant

Attorney General, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian,

attorney for respondent minor (Cynthia McCullough

Dileo, on the brief).

PER CURIAM

Defendant C.S., the mother of J.S. (fictitiously, James) appeals from an order of guardianship terminating her parental rights and awarding guardianship of James to the Division of Youth and Family Services (DYFS) for purposes of consenting to adoption. The order of guardianship also terminated the rights of the father, R.V., who defaulted. James was born on January 7, 2004.

On appeal, C.S. presents the following arguments:

POINT I

THE JUDGMENT OF GUARDIANSHIP TERMINATING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO CLEARLY AND CONVINCINGLY PROVE THE FOUR PRONGS OF THE BEST INTERESTS TEST.

(A)

THE TRIAL COURT ERRED IN FINDING THAT THE GUARDIANSHIP COMPLAINT FILED BY THE STATE OF FLORIDA CONSTITUTED CLEAR AND CONVINCING EVIDENCE OF PARENTAL "HARM" UNDER THE FIRST PRONG.

(B)

THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT WAS PARENTALLY "UNFIT" UNDER THE SECOND PRONG.

(C)

THE DIVISION FAILED TO MAKE REASONABLE EFFORTS TO PROVIDE SERVICES TO THE DEFENDANT UNDER THE THIRD PRONG.

(D)

THE TRIAL COURT'S FINDINGS THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD UNDER THE FOURTH PRONG CANNOT BE SUPPORTED.

After reviewing the record and applicable law in light of the contentions advanced on appeal, we conclude that the trial court's findings are supported by substantial credible evidence, and its conclusions predicated on those findings are legally sound. We affirm substantially for the reasons stated by Judge Bovino in his comprehensive fifty-three-page oral decision on October 4, 2005.

Our Legislature has recognized the importance of strengthening and preserving the integrity of family life, but it has also recognized that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). The best interest standard, initially formulated by the Court in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591, 604-11 (1986), and codified in N.J.S.A. 30:4C-15.1(a), requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:

(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-15.1(a).]

These requirements are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. The considerations involved in determining parental fitness are "extremely fact sensitive" and require particularized evidence that addresses the specific circumstances present in each case. In re Guardianship of K.H.O., 161 N.J. 337, 346-48 (1999).

The trial court heard testimony from two psychologists. Dr. Frank J. Dyer testified as an expert witness for DYFS, and Dr. Ernest Mastria testified as an expert witness for C.S. The trial court found that Dr. Dyer's findings and conclusions were consistent with an earlier psychological evaluation performed by Dr. Ernesto Perdomo, and, overall, the trial court concluded that Dr. Dyer's testimony was more "comprehensive and persuasive." As noted by the trial court, Dr. Dyer had the benefit of reviewing a significant amount of information that Dr. Mastria did not review, including DYFS court reports and prior psychological evaluations of C.S. prepared by Dr. Perdomo on July 30, 2004, and Dr. Gillian Messinger on March 3, 2004.

The trial court's assessment of the testimony provided by Dr. Dyer and Dr. Mastria included the following:

Dr. Dyer's report is much more comprehensive. His testimony is much more comprehensive. Dr. Dyer's opinion is corroborated by the report from Dr. Perdomo that [C.S.] cannot parent the . . . child, essentially [she is] just about able to take care of herself.

I've had the opportunity to observe the demeanor of Dr. Dyer, Dr. Mastria, the content of their testimony, the way they responded to questions both on direct and cross-examination.

I'm satisfied that . . . Dr. Mastria on direct was very positive, firm in his testimony. He becomes much more tentative in cross-examination.

Dr. Dyer almost is conversational in his testimony, explaining his position, explaining what he relied upon to . . . render his opinion, whether he relied upon a theory of bonding, the totality of the testing. He had information from [C.S.] that Dr. Mastria didn't have. Overall, his testimony is just more comprehensive and persuasive.

In reaching his decision, Judge Bovino carefully considered all of the evidence adduced at trial, including the testimony of Dr. Dyer and Dr. Mastria. The trial court recited extensive findings of fact and concluded that the State had proven by clear and convincing evidence each of the four statutory standards.

The scope of our review of the trial court's fact-finding function is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. In this case, our review of the record discloses no flaw in the trial court's findings and conclusions, or its decision to terminate defendant's parental rights. We therefore affirm substantially for the reasons stated by Judge Bovino on October 4, 2005.

Affirmed.

 

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A-1184-05T4

RECORD IMPOUNDED

April 24, 2006