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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4872-05T44872-05T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

B.R.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF

S.I.A.,

a Minor.

__________________________________

 

Submitted November 28, 2006 - Decided December 18, 2006

Before Judges Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-47-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

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

Yvonne Smith Segars, Public Defender, Law Guardian for minor S.I.A. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

B.R., the biological mother of baby girl, S.I.A., born June 10, 2004, appeals from the order of the Chancery Division, Family Part, entered on April 10, 2006, terminating her parental rights to S.I.A. The order also terminated the parental rights of W.A., S.I.A.'s biological father, who had abandoned the child and defaulted in the action.

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, B.R. argues:

POINT I.

THE JUDGMENT OF GUARDIANSHIP TERMINATING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO CLEARLY AND CONVINCINGLY PROVE THE FOUR PRONGS OF THE BEST INTERESTS TEST.

A. THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT'S PRENATAL USE OF DRUGS CONSTITUTED CLEAR AND CONVINCING EVIDENCE OF PARENTAL "HARM" UNDER THE FIRST PRONG.

B. THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT WAS PARENTALLY "UNFIT" UNDER THE SECOND PRONG.

C. THE DIVISION DID NOT MAKE "REASONABLE EFFORTS" UNDER THE THIRD PRONG.

D. THE TRIAL COURT'S FINDINGS WITH REGARD TO THE FOURTH PRONG WERE INADEQUATE AND CANNOT SUPPORT A FINDING THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

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, determined that appellant's arguments are without merit. We conclude that the evidence clearly and convincingly establishes that the child's best interests, assessed under the statutory standard, N.J.S.A. 30:4C-15.1a, warrants termination of appellant's parental rights. R. 2:11-3(e)(1)(A). Notwithstanding, we add the following.

B.R. has two other children, G.J., a six-year old son who resides with his father, a different person from W.A., who fathered A.J.A. and S.I.A., and a four-year old daughter, A.J.A., who resides in the same foster home as S.I.A. B.R. tested positive for marijuana at the time of A.J.A.'s birth. In July 2002, the Division of Youth and Family Services (DYFS) removed A.J.A. from her parents and placed her in a foster home "until the parents could demonstrate that they [were] drug-free and [could] maintain housing and employment." From April 2003 to October 2003, B.R. never visited with A.J.A. On September 19, 2003, DYFS filed a complaint for guardianship and termination of B.R.'s and W.A.'s parental rights to A.J.A. because of the parents' failure to support or make any meaningful effort to maintain a relationship with the child. On July 8, 2004, B.R. entered an identified surrender of her parental rights to A.J.A. in favor of the foster parents who later adopted the child, following termination of W.A.'s parental rights by order of July 13, 2004.

Both B.R. and S.I.A. tested positive for cocaine at S.I.A.'s birth. After B.R. executed a fifteen-day informed consent, S.I.A. was placed in the same foster home as A.J.A. and has continued to remain in that home. On June 30, 2004, DYFS filed an abuse and neglect complaint because of B.R.'s consumption of cocaine during her pregnancy with S.I.A. On February 16, 2005, the trial court found B.R. guilty of abuse and neglect. In April 2005, the court temporarily suspended B.R.'s visitation rights because she failed to comply with the substance abuse evaluations and parenting classes provided by DYFS. Although B.R. did eventually complete parenting classes on December 14, 2005, she failed to submit to urine screenings for substance abuse evaluations and made no attempt to have visitation reinstated. For a period of two years, from S.I.A.'s birth to the guardianship trial in April 2006, B.R. only visited with S.I.A. twice, once when S.I.A. was in the hospital in July 2004, and again during the bonding evaluation on August 31, 2005.

During the termination proceeding, DYFS presented testimony from Dr. Ange Puig, a psychologist who evaluated B.R. and S.H., who B.R. married on September 29, 2005. Dr. Puig also conducted a bonding evaluation between S.I.A. and B.R., and S.I.A. and her foster parents.

Dr. Puig diagnosed B.R. as suffering from depression, social introversion, and post-traumatic stress disorder. He opined that those issues would negatively affect her ability to parent and cause a high level of parenting stress. It was his opinion that B.R. "is in need of intensive psychotherapeutic interventions, involving psychiatric medication, day treatment program, domestic violence counseling, drug and alcohol counseling and parent education." He further opined that "reunification would place her daughter [S.I.A.] at risk for significant developmental disruptions and exposure to negative environments, which would be psychologically harmful and unsafe." As to bonding, Dr. Puig found that "[t]here is no evidence that there is emotional bonding existing between [B.R. and S.I.A.]." "There is no indication that this 14 month old female child, [S.I.A.], would be significantly emotionally harmed by maintaining the separation."

Dr. Puig observed positive interaction between the foster parents and S.I.A. during his bonding evaluation. "[S.I.A.] is adjusting both psychologically and developmentally and that she has made an emotionally and psychological connection with this mother and family." It was his opinion that separating the child from her foster parents would be disruptive and "would not be in her best psychological interest at this time."

B.R. testified on her own behalf. She admitted that she twice consumed cocaine during S.I.A.'s birth; had previously been transient, residing intermittently with W.A., relatives, and friends; and she has recently married and completed parenting classes. She denied that she ever refused to submit to a urine screening or a substance abuse evaluation, stating that none were ever requested. B.R. testified that she desired to regain custody of S.I.A. and establish a relationship with her.

We are satisfied from a review of the record that termination of B.R.'s parental rights is in the best interest of S.I.A. The child has been in foster care continuously since June 2004, during which time B.R. only visited the child twice, the second time on direction of DYFS for a bonding evaluation. Although B.R. was aware of her requirement to comply with court-ordered services, she did not complete the parenting classes until December 2005, and even then did not adequately follow up for visitation. We concur with Judge Blaney's finding that B.R. has failed "to prioritize her role as a mother by resisting, retarding, or refusing to cooperate with the requirements of the substance abuse evaluation and counseling ordered [by] . . . DYFS during and after the birth of both A.A. and [S.I.A.]." We conclude that the evidence supports Dr. Puig's opinion that reunification with S.I.A. would place the child "at risk . . . which would be psychologically harmful and unsafe."

Affirmed.

 

(continued)

(continued)

8

A-4872-05T4

RECORD IMPOUNDED

December 18, 2006