NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.H.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4476-05T4

NEW JERSEY DIVISION OF
YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.A.,

Defendant,

and

S.H.,

Defendant-Appellant.

IN THE MATTER OF THE
GUARDIANSHIP OF S.A.,
a minor.
_____________________________

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November 27, 2006

Submitted October 30, 2006 - Decided

Before Judges S.L. Reisner and Seltzer.

On appeal from the Superior Court of
New Jersey, Chancery Division, Family
Part, Essex County, FG-07-106-05.

Yvonne Smith Segars, Public Defender,
attorney for appellant S.H. (Michael
Confusione, Designated Counsel, of
counsel and on the brief).

Stuart Rabner, Attorney General, attorney
for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel;
Jody A. Carbone, Deputy Attorney General,
on the brief).
 
Yvonne Smith Segars, Public Defender, Law
Guardian for respondent-minor S.A. (Olivia
Belfatto Crisp, on the brief).

PER CURIAM

Defendant, S.H., appeals from a March 16, 2006, order terminating his parental rights to his daughter, S.A., who was born August 17, 2003. We affirm.
The principles that govern the termination of parental rights were recently summarized by us in Div. of Youth & Fam. Servs. v. M.M., 382 N.J. Super. 264, 269-71 (App. Div.), certif. granted, 186 N.J. 606 (2006) and we have no need to repeat them here. Suffice it to say that parental rights may be terminated when:
(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-15.1(a).]

After a bench trial, Judge R. Benjamin Cohen found that the Division of Youth and Family Services (DYFS) had proven each of the statutory elements by clear and convincing evidence and terminated the parental rights of S.H. Defendant does not attack the judge's findings and conclusions except insofar as they relate to the third prong of the statutory test. On appeal, he argues that:
POINT I
 
THE TRIAL COURT DID NOT SUFFICIENTLY CONSIDER ALTERNATIVES TO TERMINATION BECAUSE IT REJECTED THE GRANDMOTHER'S REQUEST FOR CUSTODY WITHOUT SUFFICIENT, CREDIBLE EVIDENCE TO DO SO.

POINT II
 
DYFS DID NOT MAKE REASONABLE EFFORTS TO PROVIDE SERVICES TO S.H., AND HIS CONVICTION AND INCARCERATION DID NOT EXCUSE DYFS FROM MAKING THESE EFFORTS.
 
Given the limited nature of the appeal, we review the evidence relating to the third prong and the judge's factual findings and conclusions of law based on the evidence. We do so mindful that the prongs of the statutory test "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Moreover, the determinations involved "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)).
The evidence before Judge Cohen demonstrated that S.A. was born on August 17, 2003. At the time of her birth, S.H. was incarcerated on a conviction of first-degree sexual assault involving a twelve-year-old girl. He will not be released until sometime in 2008. S.A. was removed from her mother's care several days after her birth and was placed in her present foster home on or about September 11, 2003. The judge found "this is the only home she has ever known and [S.A.'s] foster mother is . . . committed to adopting [S.A.]." The record also supported the judge's findings that:
The Division investigated the paternal grandmother . . . the family resources I noted that was belatedly provided by [S.H.] and as I noted had to rule her out, and then dismissed her appeal when she didn't follow up on that appeal, and [the grandmother] never filed any appeal to the Appellate Division from the final agency determination.

The Court notes that so far as this record discloses neither [S.H.], the defendant nor his mother, the paternal grandmother, . . . have ever even met the child, [S.A.].
 
Dr. Jason S. Fleming, Psy.D., testified on behalf of the State. Based upon his review of the records and his interview of defendant, Fleming opined that S.H. did not appear to understand how to care for a young child and would likely be prevented from having unsupervised contact with children by the terms of his release from prison. Fleming expressed his belief that placement with S.H. would subject S.A. to a great risk of physical and sexual abuse, neglect, and abandonment.
He also opined in a report, admitted into evidence and quoted by Judge Cohen, that: "[S.A.] is in a critical stage of psychological development where separation from an attachment figure, especially a psychological parent could have significant negative ramifications on her ability to form healthy attachments with others."
The judge accepted that opinion, concluding that "[T]he bond between [S.A.] and her foster mother is secure, positive, strong, and healthy and mutual. Separation of [S.A.] from her foster mother who has become her psychological parent would have significant ramifications on [S.A.'s] ability to develop and form healthy attachments with others." He also found that "[S.H.] has never and does not now offer himself even as a resource or primary caretaker for [S.A.], nor could he since he will remain incarcerated for at least another one year and four months."
Given the state of the record before him, Judge Cohen concluded that the paternal grandmother was correctly excluded by DYFS as a potential caretaker "because, by that time, [S.A.] had already formed a strong bond with the foster mother." Moreover, the judge noted a distinct lack of interest on the part of the paternal grandmother who had never met the child; who had failed to prosecute an appeal from the initial decision to exclude her from consideration as a caretaker; and who had, before that, failed to attend mediation that had been offered by DYFS. On this record, the judge concluded that DYFS had explored alternatives to termination.
He also considered the services offered to defendant, which he identified as "First, the paternity test; second, exploration of family resources, the belated offer and consideration by the Division of the parental grandmother . . . ." The judge found those services to be reasonable.
Our review of the judge's decision requires that we give deference to his credibility determinations, Cesare v. Cesare, 154 N.J. 394, 411-13 (1998), and that we not disturb his factual findings, or the conclusions drawn therefrom, unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
Here the judge's factual findings were well supported by the record, and the conclusions he drew were appropriate. Defendant's contentions to the contrary lack sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We affirm substantially for the reasons set out by Judge Cohen in his thoughtful and comprehensive oral opinion of March 16, 2006.
We add these brief comments. N.J.S.A. 30:4C-15.1(a)(3) requires DYFS to make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home . . . ." Defendant concedes that he "has committed a crime that makes it difficult for him to establish any relationship with his daughter in the future." The services suggested by S.H. would neither correct the circumstances leading to his separation from his child nor permit the establishment of a relationship with her, on even a tenuous basis, for some substantial period of time in the future. Defendant's suggestion that "DYFS at least could have attempted telephone or written contact" with his three year old child suggests a remarkable failure to appreciate the situation in which his behavior had placed his child.
Similarly, the suggestion that placement with the paternal grandmother was appropriate fails to appreciate the state of the record before the judge who accepted an expert opinion that such placement would severely impair S.A.'s ability to bond and render her subject to severe psychological harm. That testimony constitutes the "special showing of substantial and particularized evidence that serious psychological or emotional harm will be inflicted on the child by separating [her] from the foster parents" necessary to support a finding that alternative placement is inappropriate. M.M., supra, 382 N.J. Super at 282 (citing In re Guardianship of J.C., 129 N.J. 1, 17-26 (1992)).
Affirmed.

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