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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3532-05T43532-05T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.B.

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF A.B., K.B.

and M.B.,

Minors.

________________________________

 

Submitted: September 12, 2006 - Decided September 26, 2006

Before Judges Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Hudson County, FG-09-262-05.

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

Anne Milgram, Acting Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lea C. DeGuilo, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor children, A.B., K.B. and M.B. (Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

T.B. appeals from the February 10, 2006 Family Part judgment terminating her parental rights to her eight-year-old son A.B., five-year-old daughter M.B., and two-year-old daughter K.B., and awarding guardianship of the children to the Division of Youth and Family Services (Division) for purposes of consenting to adoption. Appellant contends the evidence presented did not clearly and convincingly establish that the best interests of her children required severance of her parental ties. After considering the record and briefs in light of the applicable law, we are satisfied the trial judge's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., New Jersey Div. of Youth and Family Servs. v. A.R.G., 36l N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part and remanded, 179 N.J. 264 (2004). Accordingly, we affirm substantially for the reasons set forth in Judge DeCastro's thorough and comprehensive written decision. We make the following observations.

I.

A.B. was born November 29, 1997; M.B. was born October l5, 2000; and K.B. was born September 8, 2003. A.F., the father of A.B., and K.H., the father of M.B., entered identified surrenders on September 30, 2005 and January 20, 2005, respectively. The identity and whereabouts of K.B.'s biological father are unknown.

T.B. suffers from depression and bipolar personality disorder, and has had alcohol abuse problems. The Division became involved with T.B. in February 2002, and referred her for a drug and alcohol abuse evaluation. In October 2002, T.B. informed the Division of her imminent eviction because of her inability to pay the $17 monthly apartment rental and utility charges. The Division learned T.B. had not signed up for the "Work First Program" because she did not feel like "walking all the way up to there," and thus would not be receiving welfare benefits. The Division referred T.B. to the American Red Cross for rental assistance but she was denied, as her rent was already low, she was unemployed and her rent and utility balance was $600. T.B. and her children were evicted, denied emergency shelter assistance sought by the Division, and lived a transient lifestyle, staying with various friends and relatives.

On March 27, 2003, T.B. signed an informed consent for the placement of A.B. and M.B. into foster care. The Division placed T.B. on a waiting list for Section 8 vouchers and referred her to Temporary Assistance for Needy Families (TANF). T.B. was advised to locate housing and employment, but she did not comply. In September 2003 she gave birth to K.B., and retained custody of her through May 2004 while living with a friend and then with her aunt. T.B. then left her aunt's home, and K.B. remained there with the Division's consent. In January 2005, however, K.B. was placed into foster care when her relative developed a medical problem. Since April 2005, all three children have been living with the same resource family parents, friends of T.B. The family, who has the Division's support, wishes to adopt all three children.

On November 21, 2003, the Division filed an abuse and neglect petition seeking custody, care and supervision of A.B. and M.B., later amended to include K.B. The petition was converted into a guardianship petition by verified complaint filed on May 18, 2005, seeking to terminate the parental rights of T.B. to her three children.

The judge conducted a three-day trial in January and February 2006, in which she heard testimony from Robin Frierson, the Division caseworker, and Dr. Ernesto Perdomo, the Division psychologist; and T.B. and her psychologist expert, Dr. Mark Friedman. The judge observed the demeanor of the witnesses and commented as to her assessment of their testimony and credibility findings in her written opinion. Having observed and considered the testimony of the witnesses, examined the exhibits entered into evidence, and heard arguments by counsel, Judge DeCastro concluded that A.B., M.B. and K.B.'s best interests required severance of T.B.'s parental ties. The judge made detailed findings of fact and credibility, noted the applicable law, and found the Division had established by clear and convincing evidence the four-prong test for termination of parental rights as set forth in New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-610 (1986), and as codified in N.J.S.A. 30:4C-15.1.

II.

At the outset, we note our limited scope of review of the Family Part's factual findings. In reviewing the factual findings and conclusions of a trial court, we are obliged to accord deference to the trial judge's credibility determinations and the judge's "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. A.R.G., supra, 361 N.J. Super. at 78 (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." New Jersey Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). We rely upon the trial court's acceptance of the credibility of the expert's testimony and the court's fact-findings based thereon, as it is in a better position to evaluate the witness's credibility, qualifications, and the weight to be accorded to the expert's testimony. Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 19 (1992).

We are not to disturb the factual findings and legal conclusions of the trial judge 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) (citation omitted). Additionally, because of the family court's special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding and the conclusions which flow logically from those findings of fact. Cesare, supra, 154 N.J. at 412-13; Div. of Youth & Family Servs. v. M.M., 382 N.J. Super. 264, 271-72 (App. Div. 2006) (citing Rova Farms, supra, 65 N.J. at 483-84). Applying this standard, we discern ample evidence in the record supporting the judge's conclusion that the best interests of the children require termination of T.B.'s parental rights.

The applicable principles are well settled. "Parents have a constitutionally protected, fundamental liberty interest in raising their biological children." In re Adoption of a Child by W.P. and M.P., 308 N.J. Super. 376, 382 (App. Div. l998) (citing 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." W.P. and M.P., supra, 308 N.J. Super. at 382 (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-559 (1972)). However, government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979) (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 sever the parent-child relationship to protect the child from serious physical and emotional injury. W.P. and M.P., supra, 308 N.J. Super. at 382.

When the child's biological parent resists termination of parental rights, it is the court's function to decide whether the parent can raise the child without causing harm. J.C., supra, 129 N.J. at 10. The cornerstone of our inquiry is not whether the parent is fit, but whether the parent can become fit to assume the parental role within time to meet the child's needs. Ibid. (citing A.W., supra, 103 N.J. at 607). "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." J.C., supra, 129 N.J. at 10. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that the risk of 'serious and lasting [future] harm to the child' is sufficiently great to require severance of the parent-child relationship." W.P. & M.P., supra, 308 N.J. Super. at 383 (quoting J.C., supra,, 129 N.J. at 10).

The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383. The State Constitution and N.J.S.A. 30:4C-15 and 15.1a require satisfaction of the "best interests of the child" test by clear and convincing evidence before termination of parental rights can occur. See A.W., supra, 103 N.J. at 612; In re Guardianship of Jordan, 336 N.J. Super. 270, 274 (App. Div. 2001). Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1a requires the Division to prove:

(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 [formerly referred to as "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.

These standards are neither discrete nor separate. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). They overlap to provide a composite picture of what may be necessary to advance the best interests of the children. Ibid. "The considerations involved in determination of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

Our examination of the record discloses that all four prongs of the test as they pertain to T.B. have been met by clear and convincing evidence. As to the first prong, Judge DeCastro found T.B.'s failure to obtain employment, housing and alcohol abuse treatment prevented her from providing a safe and stable home for her children. The judge appropriately rejected T.B.'s argument that the first prong was not met because she never directly caused any physical harm to her children. Prolonged homelessness is certainly harm that "threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. T.B.'s argument that she is being penalized because of poverty is likewise unpersuasive. T.B. had an ability to provide for her children and was given resources and assistance by the Division before and after the placement. She was also trained as a home health aide but never sought employment in that field. Despite the resources and her skill, T.B. remained homeless and unemployed, except for a short stint as a school bus aide from February 2004 to July 2004. As the trial judge aptly assessed the situation, T.B. "simply did not try [to secure employment] until faced with the reality of trial." Even then, it was not until the final day of trial that she claimed she secured employment and was scheduled to begin work the following Monday. However, she submitted no proof of her claim.

As to the second prong, the judge found there was no evidence T.B. had any prospective for establishing future housing and employment to stop future harm to her children. The judge looked at T.B.'s inability to support herself, obtain employment, and secure her own housing, despite assistance by the Division before and while the children were in foster care. The judge saw this as evidence of the unlikelihood that she would be able to provide a safe and stable home for her children in the foreseeable future. The judge also properly considered that her three older children have not resided with her. It is of little merit that T.B. was apparently able to care for K.B. for a five-month period when viewed in the context of her actions since the Division's involvement with the family. T.B.'s denial of her alcoholism is also an indication of an unwillingness or inability to eliminate future harm to her children. Moreover, T.B.'s own expert, Dr. Friedman, acknowledged that she would require attendance at a residential alcohol treatment center, psychotherapy and treatment by a psychiatrist for bipolar disorder, in addition to individual therapy, before he could recommend gradual reunification with the children. He also acknowledged that if after a year or so T.B. had not demonstrated that she could provide for her children by successfully obtaining employment, housing and completing alcohol treatment, he might agree termination of her parental rights would be warranted.

The Division satisfied the third prong of making reasonable efforts to reunify T.B. with her children by providing assistance in finding housing and employment and enrolling her in an alcohol abuse treatment program, for which she was terminated for lack of attendance. T.B. did not avail herself of the majority of the resources offered by the Division. The Division also explored alternatives to termination by approving placement of K.B. with an aunt and placing all three children with a friend of T.B. at her request. The initial plan was reunification; however, when T.B. made no attempt to obtain housing or employment, the children's best interests warranted modification of the plan to guardianship and potential adoption.

The trial court also properly determined the Division satisfied the fourth prong, that termination of T.B.'s parental rights will not cause more harm than good. Judge DeCastro accepted Dr. Perdomo's opinion that although the two older children were bonded to T.B. and may suffer significant trauma on termination of her parental rights, the children's needs for permanency outweighed that possible traumatic effect. The children are flourishing in their new environment. Both experts agree the children have a strong bond with their resource family parents, who wish to adopt them, and permanency and stability is in their best interest.

We are convinced, as was the Family Part judge, that although T.B. loves her children, she is unable to provide a stable and permanent home that her children so desperately need. As we concluded in In re Guardianship of A.R.G., 318 N.J. Super. 323, 330 (App. Div.), certif. denied, 162 N.J. 127 (1999), where there is substantial credible evidence in the record to support termination of parental rights, there is no reason to delay permanent resolution. Children cannot afford to wait until such time as their parent might be a fit caretaker, especially where, as our record indicates, T.B. is unlikely to ever obtain that status in sufficient time to benefit her children. Ibid. Freeing the children for adoption will not do more harm than good, and will provide hope and stability to young children who desperately deserve a stable family commitment.

 
Affirmed.

T.B. has two other children, F.B. and S.B., neither of whom are the subject of this guardianship action.

In addition to F.B. and S.B., T.B. has a twenty-two-year-old son who she gave up for adoption.

(continued)

(continued)

2

A-3532-05T4

RECORD IMPOUNDED

 

September 26, 2006