NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. T.K.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2358-05T42358-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.K.C.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF K.M.C.,

A Minor-Respondent.

 

Submitted August 16, 2006 - Decided August 21, 2006

 
Before Judges Kestin and Winkelstein.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, FG-11-48-05.

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

Zulima V. Farber, Attorney General, attorney for respondent, New Jersey Division of Youth and Family Services (Michael J. Haas, Assistant Attorney General, of counsel; Leila Lawrence, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor-respondent, K.M.C. (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Following a bench trial, T.K.C., the mother of K.M.C., a minor female, appeals from a judgment terminating her parental rights to her daughter. On appeal, she challenges the trial court's determination under the best interests test set forth in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986), as codified at N.J.S.A. 30:4C-15.1a; see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). The primary thrust of her claim is that the Division of Youth & Family Services (the Division) improperly rejected the child's maternal grandmother, P.C., as an alternative to termination. The minor, through the Law Guardian, also challenges the trial court's conclusion that P.C. is not a suitable relative caretaker for her granddaughter.

We have reviewed the record and have considered the arguments of appellants in light of the applicable law. We find the arguments to be without merit. The record supports the trial judge's decision to terminate defendant's parental rights by clear and convincing evidence. See A.W., supra, 103 N.J. at 612 (clear and convincing evidence standard to terminate parental rights).

K.M.C. was born positive for heroin and methadone on December 13, 1999. Because the child was deemed to be medically fragile, she was placed in a special home upon discharge from the hospital until January 28, 2000, when she was placed in the physical custody of her maternal grandmother, P.C.

Over the next several years, the child was placed with her mother and her grandmother, and, by the age of four, she had been placed into foster care three times. Her current foster parents want to adopt her.

T.K.C. is not in a position to raise the child. She has a history of prostitution and drug abuse and, despite efforts by the Division to place her in drug treatment programs, T.K.C. has been unable to rid herself of her drug habit. In this regard, the trial judge made the following unchallenged findings:

I find from the uncontradicted, clear and convincing evidence, [K.M.C.] will be endangered by her relationship with her mother. Her mother's inability to cope with her own drug dependence demonstrates her inability to maintain any stability in her life. She has been exposed to many treatment services since [K.M.C.] has been born. She has not successfully completed one. She also has not dealt with mental health problems which were commented upon by all the psychologists who testified.

History shows that she depends upon friends for housing and financial support. Lastly, [K.M.C.] has remained out of her care since July 2004. Likewise, for the same reasons set forth above, [T.K.C.] is unwilling or unable to provide a safe and stable home for [K.M.C.] and the delay of permanent placement will add harm to [K.M.C.]. That harm is brought about as a result of [K.M.C.]'s positive relationship with her foster parents. [T.K.C.]'s drug dependence and recent conduct, i.e., being arrested for probation and being incarcerated, make her an unfit mother.

To succeed in a termination proceeding, the Division must establish that termination is in the child's best interests, by applying the following standards:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unable or unwilling to eliminate the harm facing the child or is unable or unwilling to provide a safe and suitable 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.

[N.J.S.A. 30:4C-15.1a(1)-(4); see also A.W., supra, 103 N.J. at 604-11).]

Appellant and the minor child both concede that the first two prongs of the test have been met. The disagreement with the trial judge's decision implicates paragraphs (3) and (4). Both appellant and the minor child claim that P.C., the child's maternal grandmother, should have been considered as an alternate placement eliminating the need for termination of T.K.C.'s parental rights. The trial judge concluded that P.C. did not provide a viable alternative to terminating T.K.C.'s parental rights. We find no basis to disturb that determination.

As noted, the third prong of the best interests test requires the Division to make "reasonable efforts to provide services to help the parent and correct the circumstances which led to the child's placement outside the home and the court [to consider] alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1a(3). This prong "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. If placement with a relative can be accomplished, termination of parental rights may not be necessary. As the New Jersey Supreme Court explained in A.W., supra, 103 N.J. at 609,

"When a child is placed with a relative, termination is both unnecessary and unwise unless the relative wishes to adopt the child or is unwilling to provide long-term care. As long as the relative is willing to provide care until the parents can resume custody, the child's needs for stability and attachment are satisfied."

[quoting Wald, State Intervention on Behalf of "Neglected" Children: Standards for Removal of Children From Their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights, 28 Stan. L. Rev. 623, 697 (1976) (internal footnote omitted).]

Here, focusing on P.C.'s inability to provide stability for the child, the judge rejected her as K.M.C.'s caretaker. The record supports that decision. In January 2003, while T.K.C. and K.M.C. were living with P.C., the entire family was evicted; K.M.C. was removed from her family's care at that time and placed in an emergency facility. While a "filthy home does not prove child neglect," State v. Martinez, ___ N.J. Super. ___ (App. Div. 2006) (citing N.J. Div. of Youth & Family Servs. v. C.M., 181 N.J. Super. 190, 201 (App. Div. 1981)), in July 2004, again while her daughter and the child were living with her, P.C.'s home was without electricity, which had been off for approximately three weeks; without furniture; without a bed for the child to sleep on; and the refrigerator contained maggots but no food. The child was again removed and placed in an emergency facility. It was not until September 2004 that P.C. advised the Division that she had electricity. After that contact, several unsuccessful attempts were made by the Division to inspect P.C.'s home. That was not accomplished until May 2005, when according to the Division's representative,

The house was dirty. The carpets were filthy. The furniture was -- you could see the dust. There was clutter. There [were] papers and mail all over.

Upstairs, the bedrooms were -- there was one bedroom that was, I guess, appropriate, for lack of a better term. There was a . . . bed in there, but the closets were packed. The other two rooms were so filled with just all kind of stuff . . . just piles of clothes, and garbage, and papers, that the one room you couldn't even open the room all the way. And that was a big concern.

There was a mound of garbage out the back door, which was a concern.

While at trial P.C. provided explanations for the condition of the home, the trial judge rejected her testimony. He said:

Frankly, I did not believe [P.C.]. The method which she responded to questions on direct and cross did not have the ring of truth. Her answers to questions were not responsive, she had excuses and shallow explanations for everything unfavorable. On several occasions I had to admonish her to answer the question and not make exculpatory speeches.

We must aver to those findings of the trial judge as he had an opportunity to see and hear the witnesses and had a "feel of the case" which as an appellate court we do not enjoy. State ex rel. S.B., 333 N.J. Super. 236, 241 (App. Div. 2000).

The record contains support for the court's conclusion that P.C.'s lifestyle is no more stable than T.K.C.'s. P.C. has been unable to maintain a safe and stable housing environment for the child. At one point, while the electricity in her home was out, she was observed lying on the floor in the living room, in the dark, with a flashlight and candle burning, with no furniture in the house and a refrigerator infested by maggots. She has been involuntarily required to move from place to place, unable to maintain stable housing. The trial court's findings and conclusions in this regard are fully supported by the record. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (on appeal, an appellate court does not disturb trial court's factual findings or legal conclusions unless they are manifestly unsupported by or inconsistent with the evidence in the record; in other words, so long as substantial evidence exists to support the trial judge's findings and conclusions, we must affirm).

The fourth prong of the best interests test requires a determination of "whether, after considering and balancing the [relationship of the child with her natural parents and foster parents], the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. Here, Genevieve Chaney, Psy.D., the licensed psychologist who testified on behalf of the Division, said that the foster parents would help the child make a transition into their home on a permanent basis; they were willing to offer her "a consistent, stable environment." She testified that the child had formed "connections" with both foster parents; the foster parents are able to provide the child with "consistency," and the child has "the potential to form an even stronger connection and bond with them over time." Dr. Chaney rendered an opinion that while termination of the child's mother's parental rights could cause the child trauma, the stability and consistency offered by the foster parents would be beneficial to the child and outweigh the termination of the child's ties with her mother.

The child needs stability in her life which neither her mother nor her grandmother has been able to provide. Her foster parents have provided that stability and the expert testimony supports the court's conclusion that termination of parental rights will not do more harm than good.

 
Affirmed.

(continued)

(continued)

9

A-2358-05T4

RECORD IMPOUNDED

August 21, 2006