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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1799-05T41799-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.B.,

Defendant-Appellant,

and

K.P.,

Defendant,

IN THE MATTER OF THE GUARDIANSHIP

OF T.B.,

A Minor.

 

Submitted: May 22, 2006 - Decided June 8, 2006

Before Judges Fall and Newman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Number FG-07-146-05.

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

Zulima V. Farber, Attorney General, attorney for respondent (Andrea M. Silkowtiz, Assistant Attorney General, of counsel; Jody A. Carbone, Deputy Attorney General, on the brief).

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

PER CURIAM

In this guardianship case, C.B. appeals from an order for judgment entered in the Family Part on October 11, 2005, terminating her parental rights to her son, T.B., who was born on November 10, 2001, and placing the child in the care and custody of the New Jersey Division of Youth and Family Services for all purposes, including placement for adoption. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

When T.B. was born, C.B. was only fifteen years old. At that time, C.B., along with her sister and brother, were in the custody of J.S., their maternal grandmother. However, they were actually residing in the apartment of their mother, K.S.

K.S. had a history with the Division dating back to 1986 due to significant mental health issues and an inadequate level of care that K.S. had provided to her children. K.S. also had criminal charges against her for allegedly attacking a mailman with a knife. C.B. had a juvenile delinquency charge pending against her arising from a fight with another female juvenile. J.S. had informed DYFS that she no longer wanted to be the custodian of C.B. or K.S.'s other children.

An investigation by DYFS resulted in a recommendation to the Family Part that C.B. and her newborn child T.B. be placed with S.M., a family friend. An order was entered in the Family Part in docket number FD-07-1893-96, placing custody of C.B. and T.B. with S.M.

However, less than two months later, S.M. requested that the Division remove C.B. and T.B. from her home following a verbal altercation with C.B., during which the police were called. On January 23, 2002, S.M. signed a consensual placement agreement, and custody of C.B. and T.B. was vested with DYFS. The Division placed C.B. in the home of M.S., a maternal aunt, and T.B. was placed in foster care.

K.P., who was born in or about September 1979, was named as the biological father of T.B.

DYFS filed a Title 9 child abuse or neglect complaint pursuant to N.J.S.A. 9:6-8.22, under docket number FN-07-330-02G, and was awarded custody of T.B. by an order issued on February 20, 2002.

A court-ordered psychiatric evaluation of C.B., conducted by Dr. Sonia Oquendo on February 20, 2002, disclosed that C.B. had a long history of behavioral problems and was then currently under house arrest as the result of the delinquency charge. Dr. Oquendo recommended that C.B. be given the opportunity to bond with T.B. "as long as she is under constant supervision." K.P., who had recently been released from prison, failed to respond to attempts by DYFS to involve him in T.B.'s life.

On March 31, 2002, DYFS received a referral from the Newark Police Department, informing the Division that C.B. had been assaulted with a box cutter after a physical altercation with other teenagers. C.B. was treated for cuts and released into the care of M.S. However, shortly thereafter, C.B. left her placement with M.S. and resided with various family friends.

Numerous services were provided to the family by DYFS, including referring C.B. to the Therapeutic Housing program of Tri-City Peoples Corporation in East Orange on April 19, 2002, in an attempt to reunify C.B. and T.B. DYFS also referred C.B. to Multicultural Community Services in Edison for parenting skills training and counseling, again with the goal of reunification of C.B. with T.B. C.B. was also provided with supervised visitation sessions with T.B.

In June 2002, DYFS referred and placed C.B. at the Newark Transitional Housing Program. By order entered by the Family Part on June 24, 2002, C.B. and T.B. were placed with O.R., a family friend. However, C.B.'s behavioral problems continued, and O.R. requested they be removed. The Division then placed C.B. and T.B. at Union Industrial Home, a residential therapeutic placement for teen mothers and their children. However, after four months, in September 2003, C.B. was terminated from that program due to behavioral problems and non-compliance with the requirements of the program. T.B. was placed back into foster care, and supervised visitation sessions resumed. Additional services were provided to C.B., including counseling, parenting skills classes, and teen-mother support. The Division also explored several possible placements with friends or relatives, all without success.

In October 2004, DYFS changed its permanency plan for T.B. to relative adoption. Specifically, DYFS pursued adoption of T.B. by S.F., the maternal aunt, and her husband. However, S.F. and her husband were unable to form a bond with T.B. DYFS continued to seek relative placement and adoption, without success. Finally, those plans were abandoned in favor of a permanency objective of Select Home Adoption.

DYFS filed the subject guardianship complaint against C.B. and K.P. in the Family Part on December 10, 2004, seeking termination of their parental rights with respect to T.B.

On February 24, 2005, a court-ordered psychological evaluation of C.B. was conducted by Dr. Karen D. Wells, a licensed psychologist. In her report, Dr. Wells stated in pertinent part:

[T.B.] has been placed independent of [C.B.] for most of his life. A young teen when he was born, although there are indications that she is demonstrating a mature manner, consistent with her age and development, [C.B.] has presented with significant difficulties in the past. While the impact of her mother's mental illness and overall parental dysfunction on her is not excluded, it is uncertain if [C.B.] possesses the personal emotional stability necessary to assume primary care for a young child. While there are indications she is motivated in this regard, it is questionable if she can actually be competent and effective in assuming a primary parental role and responsibility for [T.B.]

On May 23, 2005, Dr. Wells also performed a bonding evaluation of T.B. with C.B. Dr. Wells concluded that although the child is familiar with C.B., "there was no indication that a mutual child-parent relationship exists." Moreover, Dr. Wells found that C.B. "does not possess the parental capabilities to assume primary and independent care for [T.B.]" Dr. Wells noted that C.B. was still living with her mother in a one-bedroom apartment and sleeping on a pull-out couch.

A trial was conducted in the Family Part before Judge R. Benjamin Cohen on October 3 and 6, 2005. Representatives of the Division testified, outlining the history in this matter, and Dr. Wells testified consistent with her reports. The Division rested its case on October 3, and the matter was continued to October 6, 2005. C.B. did not appear at the October 6 hearing, and the defense produced no witnesses. The court heard summations from all counsel on that date, and rescheduled the matter for October 11, 2005. K.P. did not appear at any the scheduled trial dates, and default was entered against him. C.B. did not appear at the October 11 hearing.

On October 11, 2005, Judge Cohen delivered an oral decision, finding that DYFS had established by clear and convincing evidence the presence of each of the four prongs of the best interests test as set forth in N.J.S.A. 40:4C-15.1a, and entered an order for guardianship, terminating the parental rights of both parents. K.P. has not appealed.

On appeal, C.B. presents the following arguments for our consideration:

POINT I

SUBSTANTIAL CREDIBLE EVIDENCE DID NOT EXIST SUPPORTING THE COURT'S FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

A. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILD WAS AND WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

B. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT A FINDING THAT THE APPELLANT WAS UNWILLING OR WAS UNABLE TO ELIMINATE THE HARM FACING THE CHILD.

C. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO C.B.

D. THE COURT'S FINDING THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

We begin our inquiry by restating applicable legal principles. These principles bear replication in light of the remedy ordered by the Family Part judge.

The rights 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, 403-04 (1999); New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591 (1986)). Parents have a constitutionally protected, 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). The Federal and State Constitutions protect the inviolability of the family unit. Stanley, supra, 405 U.S. at 651, 92 S. Ct. at 121-13, 31 L. Ed. 2d at 558-59; A.W., supra, 103 N.J. at 599.

"The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). As is true of so many other legal presumptions, "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 attests to the fact that some parents may act against the interests of their children. 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 a partial or complete severance of the parent-child relationship. However, "[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 the child's biological parents resist termination of parental rights, our function is to decide whether the parent can raise the child without causing harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of our inquiry is not whether the parents are fit, but whether they can become fit to assume the parental role within time to meet the child's needs. Ibid. "The . . . analysis entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid. The burden rests on the party seeking to terminate parental rights "to demonstrate by clear and convincing evidence" that 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 achieved through the best interests of the child standard. K.H.O., supra, 161 N.J. at 347. Under that standard, parental rights may be severed when:

(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. Such harm may include evidence that separating the child from his foster 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 standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance 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 specific case. Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

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 its "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). We are not to disturb the judge's findings unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

After analyzing the record on appeal in light of these principles, we are satisfied that the arguments presented by C.B. are without sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(A) and -3(e)(1)(E). The evidence overwhelmingly supports the findings and conclusions articulated by Judge Cohen in his oral decision delivered on October 11, 2005.

At the time of trial, T.B. had been in a total of eleven placements and was less than four years old. Clearly, the health and development of T.B. had been endangered by the parental relationship with C.B., and would continue to be so endangered unless given the promise of permanency. Numerous and exhaustive efforts to eliminate the harm caused by this parental relationship were unsuccessful and it was evident that C.B. was unable to provide a safe and stable home for T.B., and that any delay in permanent placement would add to the harm. The evidence fully supports Judge Cohen's conclusion that the termination of the parental relationship will not do more harm than good. Termination of this parental relationship was necessary to permit T.B. to achieve the permanency that he so richly deserves.

Affirmed.

 

(continued)

(continued)

13

A-1799-05T4

RECORD IMPOUNDED

June 8, 2006