DIVISION OF YOUTH AND FAMILY SERVICES v. L.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2719-05T42719-05T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

vs.

L.B.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF:

N.D.B., a Minor.

__________________________________

 

Submitted: September 13, 2006 - Decided September 25, 2006

Before Judges Cuff and Winkelstein.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Union County, Docket No. FG-20-43-05.

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

Anne Milgram, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Tara Beth-Lefurge, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor N.D.B. (Cynthia McCulloch DiLeo, Per Diem Law Guardian, of counsel and on the brief).

PER CURIAM

Defendant L.B., the mother of N.D.B., appeals from the December 5, 2005 order that terminated her parental rights and awarded the Division of Youth and Family Services (DYFS) guardianship, care, custody and control of N.D.B. The order was entered following a four-day trial. On appeal, L.B. contends that the trial judge's findings of fact that the statutory best interests of the child test was proven by clear and convincing evidence are not supported by substantial credible evidence. We disagree and affirm.

N.J.S.A. 30:4C-15.1 governs the termination of parental rights. In order to terminate a person's parental rights to a child, the State must demonstrate that the action is in the best interests of the child and establish by clear and convincing evidence the following four prongs:

(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-15.1a(1)-(4).]

This statutory standard was amended in 2004 to bring the statutory standard in conformity with the 1997 Federal Adoption and Safe Families Act and the recent Supreme Court case interpreting these new amendments and redefining the best interests standard. The emphasis in guardianship proceedings has shifted from protracted efforts to reunify a family to efforts that underscore the health, safety, and welfare for the child, and to effect an expeditious and permanent plan for the child. See P.L. 1999, c. 53; N.J.S.A. 30:4C-11.1; N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 505 (2004); In re Guardianship of K.H.O., 161 N.J. 337, 357-58 (1999).

An appellate tribunal must give due regard to the trial judge's ability to observe the witnesses and to judge their credibility. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). This is particularly so in guardianship matters due to the expertise of Family Part judges. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Judge Chrystal delivered an oral opinion in which she found that the child was born on August 13, 2003, following the admission to the hospital of L.B. on August 6, 2003, to address complications to her pregnancy as a result of drug abuse, smoking and Hepatitis C. At birth one week later, N.D.B. was diagnosed with respiratory distress, drug withdrawal, jaundice, possible substance sepsis, intrauterine narcotic exposure (cocaine and opiates), moderate aspiration pneumonia and mild sepsis. The child remained hospitalized until October 2003 at which time she was placed in the care of a foster parent. She was then and continues to be medically fragile.

L.B. was discharged from the hospital the day following N.D.B.'s birth. Her next contact with the child was on January 5, 2005. In October 2004, DYFS located L.B. at Eva's Village, an intensive in-patient drug rehabilitation program. To her credit, L.B. has sought and obtained intensive therapy for her twenty-seven year history of drug abuse. Nevertheless, L.B. had absented herself from the first seventeen months of her daughter's life. At the time of trial, L.B. was residing in transitional housing at Eva's Village and was drug-free. Judge Chrystal concluded that the circumstances of the child's birth, the medical complications associated with her mother's drug abuse, and L.B.'s absence for over a year following the child's birth established the first prong of the statutory test. L.B. does not contest this finding.

Judge Chrystal also found that L.B.'s resolve and progress to date to remain drug-free were commendable. However, she had incurred a restriction for not turning in meeting slips. She had not provided the required certification of completion of a parenting class to DYFS, and her plans for the future were so optimistic that they bordered on fanciful. The housing in which L.B. proposed to live was only in the planning stages. Her plan to work part-time, attend school, and attend daily NA meetings did not seem to account for the needs of her medically fragile child. Although she believed her mother would be able to provide assistance to her and her child, L.B. did not account for her mother's ill health and her lack of geographic proximity. The judge also found that L.B. might not fully appreciate the extent of her daughter's medical needs. Due to the combination of factors, Judge Chrystal concluded that L.B. was not presently able to eliminate the harm facing her child and proceeded to conclude that the State had satisfied the second statutory prong by clear and convincing evidence.

Judge Chrystal found that efforts to provide services to alleviate the conditions or situations that caused the initial harm to the child were frustrated by L.B.'s prolonged absence following her daughter's birth. The judge also found that the maternal grandmother was appropriately ruled out as a placement option for the child due to overcrowding in her home, her age, and her ill health. No other placement options were offered. Therefore, Judge Chrystal concluded that DYFS had made reasonable efforts to provide services to L.B. and to identify alternatives to termination of parental rights.

Finally, Judge Chrystal found that the child did not recognize L.B. as her mother and there was no meaningful attachment between L.B. and her daughter. She also found that the foster mother was the child's psychological parent. Indeed, this latter fact is undisputed. Moreover, Judge Chrystal found that even L.B. recognized that the child would experience trauma on separation from her foster mother. Under these circumstances, Judge Chrystal found that termination would not cause more harm than good and concluded that DYFS had established the fourth prong of the statutory test by clear and convincing evidence.

On appeal, L.B. argues that the State did not establish the second, third and fourth prongs of the statutory test by clear and convincing evidence. Our review of the entire record refutes that contention. We affirm substantially for the reasons expressed by Judge Chrystal in her comprehensive December 5, 2005 oral opinion.

Affirmed.

 

(continued)

(continued)

7

A-2719-05T4

RECORD IMPOUNDED

 

September 25, 2006