DIVISION OF YOUTH AND FAMILY SERVICES v. C.G.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4711-05T44711-05T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.G.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF

M.S.K.W., B.M.G., and H.N.C.L.

Minors.

____________________________________

 

Submitted October 31, 2006 - Decided November 17, 2006

Before Judges Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-34-05.

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

Stuart Rabner, Attorney General, attorney for respondent (Michael Haas, Assistant Attorney General, of counsel; Scott J. Kieserman, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minors M.S.K.W., B.M.G., and H.N.C.L. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

C.G., the biological mother of baby girl M.S.K.W. (born February 2, 2003), baby boy B.M.G. (born July 19, 2004), and baby girl H.N.C.L. (born August 3, 2005), appeals from the order of the Chancery Division, Family Part, entered on April 11, 2006, terminating her parental rights to her three minor children. C.G. has two older children, who have been adopted by their maternal grandmother, and are not subject to this guardianship proceeding. J.L., the biological father of B.M.G. and H.N.C.L., also had his parental rights terminated but is not appealing. On April 24, 2006, J.W., the biological father of M.S.K.W., executed a general surrender of his parental rights to his child.

Termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Such actions require proof by clear and convincing evidence. Div. of Youth & Family Servs. v. L.C., 346 N.J. Super. 435, 439 (App. Div. 2002). Termination actions brought under N.J.S.A. 30:4C-15.1a, are decided under a four-part "best interests of the child" standard first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-611 (1986) and now codified in N.J.S.A. 30:4C-15.1a.

On appeal, C.G. argues:

POINT ONE

A. THE DIVISION'S EVIDENCE DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE A FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILDREN HAS BEEN AND WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

B. THE DIVISION[] DID NOT PRODUCE EVIDENCE TO SUPPORT THE FINDINGS THAT C.G. WAS UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILDREN AND THE DELAY OF PERMANENT PLACEMENT WILL ADD TO THE [HARM].

C. THE COURT'S FINDINGS THAT THE DIVISION HAS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP THE CIRCUMSTANCES WHICH LED TO THE REMOVAL OF C.G.'S CHILDREN AND THE COURT HAS CONSIDERED ALTERNATIVES TO TERMINATION OF [] PARENTAL RIGHTS IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

D. THE COURT'S FINDINGS THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

POINT II.

THE COURT SHOULD NOT HAVE TAKEN A GENERAL SURRENDER WITHOUT THE PRESENCE OF COUNSEL WHEN IT BECAME EVIDENT J.W. DID NOT HAVE A CLEAR UNDERSTANDING OF ITS MEANING.

Contrary to the appellant, the law guardian supports the decision below.

On appeal, factual findings and conclusions of the trial judge are generally given deference, especially when the evidence is "largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). An appellate court should not disturb the "'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)) (alteration in original).

We have carefully reviewed the record, and in light of the applicable law, conclude that C.G.'s contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). Notwithstanding, we add the following.

C.G. argues that DYFS failed to prove the first prong of the best interests of the child's standard, N.J.S.A. 30:4C-15.1a(1). C.G. contends that the record is devoid of any evidence that the children suffered harm as a direct result of her drug exposure.

Termination under the statute is not limited to intentional harms inflicted by a parent or to direct harm caused by a parent's self-abuse of drugs or alcohol. Although those factors are ones that may be considered by the court, the standard under the statute remains the "best interests of the child." A.G., supra, 344 N.J. Super. at 434. The required harm under the first prong of the test "must be one that threatens the child's health, and will likely have continuing deleterious effects on the child." In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999). The primary focus under the first prong is whether the parent has harmed the child or may harm the child in the foreseeable future. A.W., supra, 103 N.J. at 607. "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348. Such harm may be established by evidence that a parent has allowed his or her child to live in deplorable, unhealthy, and unsafe conditions, and by withdrawal of a parent's solicitude, nurture, and care for an extended period of time. In re Guardianship of D.M.H., 161 N.J. 365, 379-83 (1999).

Although the trial judge mistakenly interpreted the first prong of the standard, equating it to "an abandonment standard," we are satisfied from our review of the record and the judge's detailed statement of factual findings that DYFS proved the first prong by clear and convincing evidence.

C.G. has had a long-term substance abuse problem with marijuana and cocaine for more than twelve years, which has continued for the most part unabated and has taken priority over the safety of her children. When M.S.K.W. was born, she tested positive for cocaine. B.M.G., born prematurely, had been exposed to cocaine in utero. DYFS has offered C.G. numerous opportunities to rehabilitate herself, all of which had been rejected in favor of returning to a life of drugs, resulting in various convictions for crimes and disorderly person offenses, including two convictions for robbery and one conviction for prostitution. C.G.'s continuous involvement with controlled, dangerous substances not only places her children's health at risk, but also prevents her from providing her children with a stable home environment.

We reject appellant's argument that the trial judge improperly accepted a general surrender of parental rights from J.W., the biological father of M.S.K.W. J.W. is not complaining, and C.G. has no standing to raise the issue.

 
Affirmed.

(continued)

(continued)

6

A-4711-05T4

RECORD IMPOUNDED

November 17, 2006