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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3974-04T43974-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.B.C.,

Defendant-Appellant,

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF T.I.B. AND K.T.C.,

Minors.

________________________________________________________________

 

Submitted April 4, 2006 - Decided April 26, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FG-04-58-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Alexandra B. Oasin, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minors T.I.B. and K.T.C. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

T.B.C. appeals from a judgment of guardianship terminating her parental rights to her daughter, T.I.B., who was born on March 15, 1997, and her son, K.T.C., who was born on November 30, 2003. The father of T.I.B. is deceased. The parental rights of the father of K.T.C. were terminated in this proceeding by default. T.B.C. raises these arguments on appeal:

THE JUDGE'S DECISION TO TERMINATE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED AS THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION WAS IN THE BEST INTERESTS OF THE CHILDREN.

A. THE DIVISION FAILED TO PROVE PARENTAL UNFITNESS UNDER THE SECOND PRONG OF THE BEST INTERESTS TEST.

B. THE TRIAL COURT, IN DETERMINING THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD, FAILED TO ACKNOWLEDGE THE HARM INHERENT IN PERMANENTLY REMOVING CHILDREN FROM THEIR BIOLOGICAL PARENT.

We have reviewed the record and conclude that the trial judge's findings are well supported by the evidence, R. 2:11-3(e)(1)(A), and that T.B.C.'s appeal arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated by Judge Page in his thorough and well-reasoned oral decision of January 7, 2005. We add these comments.

The Division of Youth and Family Services (Division or DYFS) had a long history with T.B.C., beginning when she was a child. She lived in an abusive household, where she was abused by her father. She engaged in significant drug abuse as a minor and demonstrated a pattern of acting-out behavior. The Division provided her with services for mental health and substance abuse problems as a minor.

The first DYFS referral pertaining to the children involved in this case occurred within a month after T.I.B.'s birth, on April 9, 1997, when it was reported to DYFS that the living conditions of the mother and child were unsanitary and deplorable. Services were provided. Further referrals, reporting continued unsanitary living conditions, followed. The Division continued to offer and provide services.

In 1999, T.B.C. stabbed her father because he refused to give her drug money. She was eventually convicted of aggravated assault and a weapons offense and sentenced to four years in State prison. During this timeframe, T.I.B. was staying with a family friend. The Division approved of the placement, but made continual efforts to identify a suitable family member to take custody of the child. A number of family members were investigated, but without success.

While in prison, T.B.C. was diagnosed with schizoaffective disorder. She was transferred to the Anne Klein Forensic Center, followed by a transfer to the county jail. During this period of time, she was also diagnosed with major depression with psychotic features. T.B.C. was also diagnosed as bipolar.

In April 2002, T.B.C. made an identified surrender of T.I.B. to the identified foster home in which T.I.B. had been living. However, in February 2003, the child was removed from that placement because of domestic violence. T.I.B. was placed in another foster home for a time and then, in December 2003, was reunified with her mother. This occurred soon after T.B.C. gave birth to K.T.C. on November 30, 2003. Thus, for a short period of time, T.B.C. had custody of both of her children.

This arrangement was short-lived. On February 5, 2004, the Division received a referral indicating that T.B.C. was using heroin. T.B.C. admitted to her heroin use, and admitted that she had been using heroin while pregnant with K.T.C. She consented to removal of both children, and they were placed in foster care. The two children have continuously been in the same foster home since March 2004, and the foster parents wish to adopt them.

The Division continued to offer services to T.B.C. for substance abuse. She participated to some extent, but did not follow through to completion. The Division lost contact with T.B.C., and learned that she was returned to prison in June 2004 because of a parole violation. She was eventually released on November 22, 2004. She saw the children at that time for a bonding evaluation, but has had no contact with them since.

Trial was conducted on January 7, 2005. T.B.C. was on notice of the trial but did not attend. She was represented at trial by counsel. It was made known to the judge that T.B.C. had stated that she could not find it within herself to voluntarily consent to giving up her rights to her children, but she would just wait to see what happened at the trial. Judge Page interpreted these comments and T.B.C.'s conduct as a de facto abandonment of her children.

The trial consisted of the testimony of two case workers and the admission in evidence by stipulation of the parties of the psychological report of Dr. Ronald Gruen. Numerous other documents and records were admitted in evidence.

According to Dr. Gruen, T.B.C. was unable to parent the children, and their best interests would be served by termination of her parental rights. Her parenting inability was occasioned by her long-term unaddressed substance abuse problem and her need for self-gratification, which she placed over her responsibility for the children. He opined that T.I.B. did not have a strong bond with her mother, and K.T.C. had no bond with his mother. He further opined that K.T.C. had a developing bond with the foster parents, and T.I.B. was beginning to form a bond with the foster parents, although she still harbored hopes of reuniting with her mother some day.

Based upon the evidence presented, Judge Page found by clear and convincing evidence that the Division proved all four prongs of the best interests test.

"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Moreover, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986) (quoting Santosky v. Kramer, 455 U.S. 745, 787, 102 S. Ct. 1388, 1412, 71 L. Ed. 2d 599, 628 (1982)). Accordingly, courts have consistently imposed strict standards regarding the termination of parental rights. K.H.O., supra, 161 N.J. at 347. However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. This is because the State, as parens patriae, has a responsibility to protect the welfare of children. K.H.O., supra, 161 N.J. at 347.

The standard for determining the termination of parental rights is known as the best interests of the child test, originally set forth in A.W. and now codified in N.J.S.A. 30:4C-15.1a, which authorizes termination if the Division can show:

(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.]

DYFS has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R., 155 N.J. Super. 186, 193 (App. Div. 1977). Moreover, the four criteria overlap with one another to provide a comprehensive standard that identifies a child's best interests. K.H.O., supra, 161 N.J. at 348.

In K.H.O., the Court held that where there is evidence that a bond with a foster parent is strong and that a bond with a natural parent, by comparison, is not as strong, the fourth prong of the best interests standard will be satisfied. Id. at 363. New Jersey has a strong public policy favoring permanency. Id. at 357. In all guardianship and adoption cases, the child's need for permanency and stability must be accorded primary status. Id. at 357-58.

T.B.C. does not challenge the judge's findings regarding the first and third prongs. She challenges the findings on the second and fourth prongs, contending, essentially, that she should be given more time to address her substance abuse problem and might, at some time in the future, become capable of parenting the children.

The findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, because of the particularized expertise of Family Court judges in family matters, we accord enhanced deference to Family Court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998). From our review of the record, we are satisfied that the record supports the judge's findings that the Division established by clear and convincing evidence all four prongs of the best interests test. We will not disturb the judge's findings on appeal. The judge properly applied the correct principles of law to his factual findings, and we find no error in the result reached.

 
Affirmed.

(continued)

(continued)

9

A-3974-04T4

RECORD IMPOUNDED

April 26, 2006