STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.K. and J.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1848-05T41848-05T4

A-1849-05T4

STATE OF NEW JERSEY

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.K. and J.B.,

Defendants-Appellants.

______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF

K.B. and C.B.,

Minors.

____________________________________________________________

 

Submitted September 12, 2006 - Decided September 27, 2006

Before Judges Graves and Lihotz.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Sussex

County, FG-19-20-05 and FG-19-30-05.

Yvonne Smith Segars, Public Defender, attorney

for appellant J.K. (Ruth Harrigan, Designated

Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney

for appellant J.B. (William J. Sweeney,

Designated Counsel, of counsel and on the

brief).

Anne Milgram, Acting Attorney General,

attorney for respondent (Andrea Silkowitz,

Assistant Attorney General, of counsel;

Andrea R. Fonseca, Deputy Attorney General,

on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for minor respondents

K.B. and C.B. (Phyllis Warren, Assistant

Deputy Public Defender, on the brief).

PER CURIAM

J.K. is the mother and J.B. is the father of two young children; K.B. was born on April 29, 2001, and her sister, C.B. was born on February 13, 2003. The parents appeal from an order of guardianship terminating their parental rights and awarding guardianship of K.B. and C.B. to the Division of Youth and Family Services (DYFS or Division) for purposes of consenting to adoption.

On appeal, J.K. presents the following arguments for our consideration:

POINT I

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

(A) DYFS FAILED TO SATISFY THE REASONABLE EFFORTS STANDARD BECAUSE IT UNILATERALLY CEASED ALL EFFORTS TO PROVIDE SERVICES TO DEFENDANT WITHOUT JUDICIAL APPROVAL AND THE COURT DID NOT CONSIDER ALTERNATIVES TO PARENTAL TERMINATION.

(B) APPELLANT IS ENTITLED TO A REVERSAL BECAUSE THE EVIDENCE WHICH WAS PRESENTED DID NOT SUPPORT A FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

In addition, the father, J.P., presents the following issues:

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 CHILDREN WERE 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 CHILDREN.

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

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

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 Callahan in his thorough and thoughtful ninety-six-page oral decision on November 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 not discrete; they overlap to provide a composite picture of what may be necessary to advance the best interests of the children. 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 considered and evaluated expert testimony from three psychologists. Dr. Elizabeth M. Smith and Dr. Elayne I. Weitz testified as expert witnesses for DYFS, and Dr. Paul F. Fulford testified as an expert witness for the parents. In her forensic evaluation, Dr. Smith noted that the parents did not acknowledge they had any parenting problems, and they "depicted themselves as victims of the Division. Even after very significant, long term interventions by the Division and FPS [Family Preservation Services], they have no insight regarding their difficulties." According to Dr. Smith:

The evidence contained in the copious documentation provided in the form of prior evaluations and observations in addition to their own report and behavior lead to the unavoidable conclusion that they present a continuing risk to neglect and abuse these children and that that risk cannot be mitigated by additional intervention in a manner timely to the children's permanency needs. To subject them to further redundant testing and interview when the conclusion is incontrovertible would be a cruelty. This examiner concurs wholeheartedly with Dr. Weitz's conclusions regarding this family.

Dr. Weitz interviewed and tested both of the parents "to determine whether or not they are fit to care for their two young daughters," and she also performed a bonding evaluation, which contains the following findings and recommendations:

Results of this evaluation confirmed many of the concerns raised by the psychological evaluations I completed on [J.K.] and [J.B.]. Moreover, after observing and assessing the children during two bonding evaluations, I am aware of additional factors that must be considered in planning for their future. I continue to believe that reunification is not in [K.B.'s] and [C.B.'s] best interest, and cannot be expected to occur successfully without 24 hour supervision by an experienced child care provider.

. . . .

With regard to Dr. Fulford's statements that services from the Division of Developmental Disabilities are available to the birth parents, I am not in disagreement. My opinion is that the birth parents lack the intellectual capacity and adaptive functioning to benefit sufficiently from these services. Their past behavior, from childhood to now, supports this opinion.

When Dr. Weitz was asked whether the parents would be capable of adequately parenting their two children with assistance from the Division of Developmental Disabilities (DDD), she testified:

I just don't see this couple being able to benefit from those services, based on basically years of past experience. [K.B.] was removed three years ago and they still have not shown significant change.

But the kinds of services that I think would be necessary would be really around the clock services with another person being able to provide stability and education and assistance and another set of hands, and almost supervising the birth parents' attempts to supervise and parent their children. And I don't believe that DDD has that kind of service available.

Q. So you're -- looking at a 24 hour wrap around service in order for any -- either or both of the children to be returned to the home?

A. Yes.

Dr. Fulford disputed these findings. According to Dr. Fulford, notwithstanding their cognitive impairment, J.K. and J.B. are capable of successfully raising their children, with "minimal structure and supervision" available through DDD.

The trial court found that the testimony of Dr. Smith and Dr. Weitz was more comprehensive and persuasive than the testimony of Dr. Fulford. The court concluded that the parents are unable to recognize the specific needs of their two children, and they are unable or unwilling to acknowledge that there are any parenting problems. The court also found that the parents' deficits, including their emotional immaturity and failure to learn from the services provided, posed "a threat to the safety and security" of the children. After carefully considering all of the evidence adduced at trial, the court determined that the State had proved each of the four statutory standards by clear and convincing evidence.

The scope of our review 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 J.K.'s and J.B.'s parental rights. We therefore affirm substantially for the reasons stated by Judge Callahan on November 4, 2005.

 
Affirmed.

(continued)

(continued)

8

A-1848-05T4

RECORD IMPOUNDED

September 27, 2006