NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.R. et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5261-04T45261-04T4

A-5372-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.R. and K.K.,

Defendants-Appellants,

___________________________

IN THE MATTER OF THE

GUARDIANSHIP OF

J.R.,

A Minor.

___________________________

 

Submitted January 10, 2006 - Decided January 24, 2006

Before Judges Coburn and S.L. Reisner.

On appeal from the Superior Court of

New Jersey, Chancery Division, Family

Part, Hudson County, FG-09-243-05.

Yvonne Smith Segars, Public Defender, attorney for appellants (Helen Godby, Assistant Deputy Public Defender, of

counsel and on the brief; Jean B.

Bennett, Designated Counsel and on

the brief; Ruth Harrigan, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General,

attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General,

of counsel; Shona L. Mack-Pollock,

Deputy Attorney General, on the brief).

Yvonne Smith Segars, Law Guardian, attorney for minor J.R. (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendants, K.K. and A.R., appeal from a trial court order terminating their parental rights to their child J.R. We affirm, substantially for the reasons stated by Judge Bovino in his oral opinion placed on the record on May 12, 2005.

On this appeal, K.K. raises the following argument:

POINT I: THE DECISION FOR GUARDIANSHIP WHICH TERMINATED K.K.'s PARENTAL RIGHTS, MUST BE REVERSED BECAUSE D.Y.F.S. FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE TWO OF THE FOUR NECESSARY PRONGS TO JUSTIFY TERMINATION OF K.K.['s] PARENTAL RIGHTS.

In his brief, A.R. raises the following contentions:

POINT I: THERE DID NOT EXIST SUBSTANTIAL CREDIBLE EVIDENCE SUPPORTING THE COURT'S FINDINGS THAT THE 'BEST INTERESTS' TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

A. THE COURT'S FINDINGS THAT DEFENDANT WAS UNABLE OR UNWILLING TO ELIMINATE THE HARM FACING THE CHILD AND UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME ENVIRONMENT WERE ERRONEOUS.

B. DYFS FAILED TO SATISFY THE REASONABLE EFFORTS STANDARD BECAUSE IT UNILATERALLY CEASED ALL EFFORTS TO PROVIDE SERVICES TO APPELLANT WITHOUT JUDICIAL APPROVAL AND THE COURT DID NOT CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.

C. DEFENDANT IS ENTITLED TO A REVERSAL BECAUSE THE EVIDENCE WHICH WAS PRESENTED DID NOT SUPPORT A FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

Except to the extent discussed in this opinion, we find defendants' contentions to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Following a bench trial, Judge Bovino issued a comprehensive oral opinion on May 12, 2005, making detailed factual findings and legal conclusions. Our review of his decision is limited to determining whether it is "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998). Further, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. We have reviewed the record with that standard in mind.

The most pertinent facts are as follows. J.R., who was born in March 2002, has developmental problems. He was taken from the custody of his mother, K.K., in October 2003 due to her lack of housing and her persistent problems with alcohol abuse. There is no dispute that K.K. has an onging serious alcohol problem as well as emotional problems, and that she is not capable of caring for the child. As the trial judge observed, she is barely able to care for herself. Her plan for J.R. is that his father, defendant A.R., should care for him. But that scenario presents significant problems for J.R.

A.R. has a history of cocaine addiction beginning in at least the year 2002. Despite his active cocaine use, which he admitted was an "addiction," he sought custody of J.R. after the child was taken from K.K. He concealed his cocaine use from DYFS and from the court and, as a result, he was granted custody of J.R. in March 2004. However, after only a month, in April 2004, J.R. was removed from A.R.'s home on an emergent basis when DYFS discovered that A.R. was using cocaine. At trial A.R. claimed that he had stopped using cocaine around the time that he sought custody of J.R., but had a "relapse" after he obtained custody. He admitted that he dropped out of a drug treatment program and did not resume drug treatment for several months after losing custody of his son. Further, both experts who testified agreed that A.R. could not even be considered as a custodial parent until he had been drug free for at least twelve months. At time of trial, he had been drug free for nine months, and both experts agreed he was not yet ready to function as J.R.'s custodial parent. A.R. is living with his father, who also has a substance abuse problem and is also undergoing drug treatment.

Since he was removed from A.R.'s home in April 2004, J.R. has been living in foster care. He is now living with a foster family with whom he has bonded. Both experts agreed on J.R.'s significant bond with the foster parents. The parties' experts disagreed on whether J.R. could make the transition from living with his foster parents to living with A.R. without suffering enduring and serious emotional harm. The State's expert, Dr. Hasson, testified that in light of J.R.'s fragility, he was particularly in need of a stable home:

[T]his is a high risk child and the bonding situation is more important for a child like this because he's fragile. If he's placed in a new setting [away from his foster family], any of the gains that he's had right now will evaporate so that the bonding situation . . . the relationship he establishes with someone who he sees as protecting him is crucially important for this child's development.

He also testified that, in this context, A.R.'s failure to promptly address his own drug problem was especially significant in that it led to J.R.'s being placed in a series of foster homes, and ultimately, to his bonding with his current foster parents during his necessarily-enforced separation from A.R:

When he used drugs, he let his son down and he put into effect this whole process that we're in right now because it wouldn't have happened if he didn't use drugs and he had maintained his child himself over the next . . . 15 months, 16 months or so . . . since the child was with him in March [2004].

He caused a problem in his child, a trauma in his child. The child's present behavior is in part a function of being taken from one setting to another setting to another setting . . . 50 percent of the child's life has gone by since the father was out of the . . . picture. . . . [I]n [A.R.'s] life, 15 months is not that much . . . compared to someone who's in his early 20's. . . . But for the child, the child is going through massive developmental changes and, as a result, these changes are . . . profound. So what seems like it's nothing for the father . . . is . . . a big change for the child, a massive change in terms of development. And this child and the whole situation here, across the Rubicon . . . when [A.R.] lost custody of that child and did not regain it quickly, in my opinion, because . . . the meter for this child's life kept on running. It didn't go on hold and he established a new relationship with these other individuals, with the foster mother and the foster father and [his foster brother].

When asked whether A.R. failed his son "the day he relapsed," Dr. Hasson testified that he failed his son when "rather than engage in treatment immediately, he really stretched it out . . . [W]hen he tested positive in April of '04, it was very difficult to engage him in treatment. . . . [I]t took from April to August, like four months or so, for him to resume treatment."

The judge accepted Dr. Hasson's theory that A.R. had harmed his son by using cocaine while he had custody of his son, and then by failing to promptly seek drug treatment after he lost custody, which in turn caused J.R. to spend a long period of critical bonding time with the foster parents rather than with A.R. The judge concluded that "[h]e disengaged from treatment voluntarily. . . . He chose drugs over the chance to regain custody of his son." He also found Dr. Hasson credible in his testimony that separating the child from his foster parents would cause him "serious and enduring harm." The judge also did not find A.R. to be a credible witness concerning the extent of his drug use, and he concluded that he may never be able to parent the child, due to the possibility of relapse into addiction. As the trial judge stated:

Our courts recognize that children are harmed by a lack of permanency. [They] [n]eed association with a nurturing adult . . . [P]arents are only given a limited amount of time to . . . correct conditions at home. The fact that a parent may be able to reach a level of stability to parent in the future is not enough. A child needs a parent now.

While we appreciate that, by the time of trial, A.R. was making a sincere effort to become able to parent his son, we defer to the trial judge's conclusions, which are amply supported by the record.

 
Applying the correct legal standard, In re K.H.O., 161 N.J. 337, 347 (1999), Judge Bovino properly concluded on this record that termination of both defendants' parental rights was in the child's best interests.

Affirmed.

(continued)

(continued)

8

A-5261-04T4

RECORD IMPOUNDED

January 24, 2006