STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. H.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2356-05T42356-05T4

STATE OF NEW JERSEY DIVISION

OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

H.B.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF J.B.,

A minor.

________________________________

 

Submitted June 26, 2006 - Decided July 17, 2006

Before Judges Collester and Weissbard.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Hudson

County, FG-09-261-05.

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; Joyce Calefati

Booth, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian for the minor (Nancy E. Scott,

Assistant Deputy Public Defender, of counsel

and on the brief).

PER CURIAM

Defendant H.B. is the mother of J.B., born February 14, 1999. She appeals from a judgment of guardianship entered on November 28, 2005, terminating her parental rights and awarding guardianship to the Division of Youth and Family Services (Division) to consent to J.B.'s adoption.

The proofs at trial established that H.B. is a forty-nine-year-old paranoid schizophrenic whose delusional, aggressive and violent behavior demonstrates her inability to parent J.B. and also that the child would be at risk of harm if returned to his mother's care.

J.B. has lived outside the home with his current caretaker since early this year, and the Division's plan for adoption is designed to satisfy the requisite permanency of placement envisioned by the Adoption and Safe Families Act of 1997, 42 U.S.C. 671(a)(16).

Under the criteria set forth in N.J.S.A. 30:4C-15.1, the State must prove the following by clear and convincing evidence:

(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.

Defendant does not dispute that the Division met its burden of proof as to the first and second prongs. However, she contends that the Division failed to provide reunification services that were designed to treat her mental illness and also failed to consider a kinship guardianship arrangement rather than terminating her parental rights. She further argues that the trial judge applied an improper "better interest" evaluation to determine that terminating defendant's parental rights would not do more harm than good, rather than the statutorily required "best interest" test.

The third prong requires the Division to make reasonable efforts to provide assistance to correct conditions that resulted in the removal of the child and also to consider alternatives to termination. "Reasonable efforts" will vary depending upon the circumstances of the removal. New Jersey Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). The failure or lack of success of such efforts does not foreclose a finding that the Division met its statutory burden to try to reunify the child with the family. In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999). While defendant argues that the Division was never committed to reunification because it failed to develop a plan specifically addressing her mental illness, the record supports the opposite conclusion.

Shortly after J.B.'s birth, H.B. assaulted a social worker and security guard at the hospital where the child was being cared for. The Division provided various services to H.B. including counseling, parenting classes, homemaker services and psychiatric evaluations. After H.B. cooperated with the services provided, J.B. was returned to her physical custody in January 2000. However, H.B.'s mental illness impeded her ability to function as a parent for J.B. She was civilly committed, and J.B. was once again removed and placed with a relative. The Division continued to offer H.B. visitation, evaluations, psychotherapy and referrals for pharmacotherapy. H.B. visited with J.B. but declined all other services. Since H.B. has paranoid schizophrenia, a severe and incurable mental illness, the Division's efforts simply could not correct her inability to parent. Although morally blameless because of her illness, the fact remains that H.B. did not comply with the available resources offered by the Division.

As to kinship guardianship under N.J.S.A. 3B:12A-1, it is intended for relative caretakers who are unable or unwilling to seek termination of parental rights. New Jersey Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 510 (2004). Moreover, kinship legal guardianship is not to be used as a defense to termination of parental rights. Id. at 513.

After the State concluded its case, defendant offered her son Lr.B. and his wife, N.M., to testify about their desire to be caretakers for J.B. at that time. Previously, Lr.B. and N.M., then fiancée, had advised the caseworker of their interest to be caretakers for J.B., but at that time they were unemployed and living out of state. Therefore, the Division deemed them unsuitable and sent them a "rule out" letter which also advised them that the Division would reevaluate that conclusion if they complied with their plan to return to New Jersey and obtain employment. There was no response to the letter or contact with the Division by Lr.B. or N.M. until nearly three years later when the matter went to trial. The trial judge excluded defendant's proffer of Lr.B. and N.B. as witnesses in light of the fact that they had not indicated a renewed interest as kinship legal guardians for J.B. until the Division had sought termination having placed J.B. with a maternal aunt who had intended to adopt him. We agree with the court's ruling.

Judge Elaine L. Davis, the trial judge in this matter, properly balanced the harm to J.B. if he were to be removed from his pre-adoptive foster home with the harm of severing ties with his mother. She concluded, based on the psychological and psychiatric testimony and H.B.'s refusal to obtain proper treatment, that the Division had established the fourth prong by clear and convincing evidence.

Therefore, we affirm substantially for the reasons set forth by Judge Davis in her November 28, 2005, oral decision.

 
Affirmed.

(continued)

(continued)

6

A-2356-05T4

RECORD IMPOUNDED

July 17, 2006