NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. L.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5889-04T45889-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

vs.

L.R.,

Defendant-Appellant,

and

S.A.,

Defendant.

IN THE MATTER OF THE

GUARDIANSHIP OF

N.A.,

A Minor.

__________________________________

 

Submitted: February 6, 2006 - Decided February 22, 2006

Before Judges Cuff and Parrillo.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Bergen County, Docket No. FG-02-87-04.

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sharon A. Walli, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for respondent, N.A., minor child (Noel Christian Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

This is a termination of parental rights appeal. L.R. appeals from an order terminating her parental rights to her son, N.A. She contends that the State failed to prove by clear and convincing evidence three of the four prongs of the statutory standard. She also argues that the trial judge improperly restricted her cross-examination of the State's expert. We disagree and affirm.

L.R. gave birth to N.A. on September 27, 1999; she was sixteen years old at the time and residing with S.A. The Division of Youth and Family Services (DYFS) became involved with the couple due to a referral from hospital personnel who were concerned about L.R.'s long history of drug use, although there is no evidence that N.A. tested positive for drugs at birth. L.R. and S.A. were offered and accepted parenting skills classes. The child resided with his mother until November 1, 2002, when L.R. was arrested for obstruction of justice, jailed, and none of the offered caretakers were considered suitable by DYFS. At that time, S.A. and L.R. were no longer residing with each other. In fact, the record reflects that S.A. left the country and returned to Yemen. In November 2002, L.R. was living in a shelter with her son. Her arrest was precipitated by an altercation with her boyfriend A.M., who had gained access to the shelter.

It is undisputed that L.R. has an extensive history of substance abuse dating to her early-adolescent years. It is undisputed that L.R. grew up in an unstable home. Her mother, H.M., had psychiatric and substance problems, and her father was incarcerated and later died of an AIDS-related illness. DYFS first became involved with L.R. in 1996, when it received a referral from her mother that L.R. was using drugs. L.R. tested positive for cocaine and marijuana. She received treatment on two occasions in 1998 for substance abuse.

Following the end of her relationship with S.A., L.R. and N.A. lived in a shelter in Bergen County and she acquired a new boyfriend. It was an altercation with this boyfriend, A.M., that led to her arrest on November 1, 2002, and the removal of her son. Following N.A.'s removal from L.R.'s care, she attended a psychological evaluation but failed to complete any of the programs provided by DYFS. The agency had set up counseling at Alternatives to Domestic Violence but L.R. did not attend. She was enrolled in parenting classes at the American Red Cross but she did not complete the sessions. DYFS referred L.R. to various drug treatment programs but she did not complete any program. In fact, she tested positive in January 2005 at a court appearance, and again in February 2005. At that time she entered an in-patient drug treatment program known as Eva's Village but left the program in April because she "felt stagnated." DYFS records report that she was terminated from the program in April 2005 due to manipulation and dishonesty.

Following N.A.'s removal from his mother's care, he was placed in foster care. In March 2003, L.R.'s first cousin contacted DYFS and expressed an interest in caring for N.A. In June 2003, N.A. was placed with the cousin's family and he remained there until June 2004 when he was returned to his original foster family. L.R.'s cousin had requested removal at the end of the 2003-04 school year due to N.A.'s problematic behavior and L.R.'s intrusions. N.A. has been diagnosed with Attention Deficit Hyperactivity Disorder. Since his return to his original foster family, he has been prescribed medication and therapy. His foster mother reports that his behavior has improved dramatically. L.R. ceased visiting N.A. in April 2004 after the court approved the DYFS plan to proceed with termination of L.R.'s parental rights.

The trial in this matter occurred on June 1, 2005. L.R. testified that she had obtained a job in mid-May, tried to attend Narcotics Anonymous meetings, and had just enrolled and was about to commence an out-patient program at Evergreen. She testified that she had not used drugs in four months. She also acknowledged that she would not be in a position to care for her son for twelve to eighteen months. In the interim, she proposed that N.A. live with her eighty-one year old grandmother. According to L.R., her grandmother was willing to care for N.A. until he is eighteen years old.

Dr. Robert Kanen, a psychologist, conducted a psychological evaluation of L.R. and bonding evaluations of N.A. with his mother and with his foster mother. He opined that L.R. is

impulsive, unreliable, undependable, prone to poor judgment, immature, very self centered, very focused on the short term immediate gratification of her needs at the expense of other personal obligations she would have, including taking care of a child.

He concluded that L.R. has several parenting deficits and is not capable of providing a permanent home to N.A. Moreover, returning N.A. to L.R.'s care would expose the child to an unnecessary risk of harm.

As a result of the bonding evaluations, Dr. Kanen opined that N.A. believes he has two mothers, L.R. and his foster mother. He concluded, however, that N.A.'s attachment to L.R. is insecure. He also has memories of the contentious and violent relationship between L.R. and A.M., her boyfriend. L.R. also discounted N.A.'s hyperactivity. On the other hand, N.A.'s foster parents provide structure to his life, he is well-behaved and focused in their company, and he is securely attached to his foster parents. Finally, Dr. Kanen opined that N.A. has a great need for permanency and any delay would be detrimental to him.

In his June 6, 2005 opinion, Judge Sween found that L.R. "began abusing marijuana when she was twelve, alcohol when she was eighteen and cocaine when she was nineteen." He also found that she used and abused marijuana from October 2000 through December 2004, used and abused alcohol every day during 2004, and that she was addicted to cocaine. He found that DYFS provided numerous services to L.R. but she failed to complete every program. He also acknowledged L.R.'s admission that she was not currently able to care for her son.

Judge Sween also found that the caretakers proposed by L.R. were not suitable. Her mother was considered inappropriate because of her history of neglect of L.R., and her grandmother was inappropriate due to her advanced age and unfamiliarity with her grandson's special needs. He also found that N.A.'s foster parents recognize and are able to meet N.A.'s special needs and that N.A. is securely attached to them. The judge also found that N.A. "would suffer severe grief and separation reaction if [he] were now removed from their custody." Accordingly, he found that there was clear and convincing evidence that L.R. had neglected her son, that she was unable or unwilling to overcome the causes of the neglect, that DYFS made reasonable efforts to provide services to L.R. and provide alternative custodial arrangements for the child, and that termination of L.R.'s parental rights would not cause more harm than good to her son.

N.J.S.A. 30:4C-15.1a codifies the best interest of the child standard that governs the termination of parental rights. The statute establishes four prongs designed to balance fundamental parental rights and the State's parens patriae responsibility. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Under this statutory best interests standard, parental rights may be severed upon a showing by clear and convincing evidence that the following standards are met:

(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.]

As an appellate tribunal, we review the record to determine whether the order terminating parental rights is founded on clear and convincing evidence. In re Guardianship of J.P., 180 N.J. 494, 511 (2004). This review is limited to a determination of whether the findings are supported by substantial credible evidence in the record. Ibid.; Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Indeed, "a trial court's factual findings 'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.P., supra, 180 N.J. at 511 (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993))).

Having examined the testimonial and documentary record in its entirety, we are satisfied that every finding is supported by the evidence, the trial judge identified the governing legal principles, and his application of the law to the facts is unimpeachable. We, therefore, affirm substantially for the reasons expressed in Judge Sween's June 6, 2005 opinion.

 
Affirmed.

The parental rights of S.A., the father of N.A., were also terminated. He does not appeal.

Actually, the record demonstrates that L.R. commenced using marijuana and alcohol at thirteen rather than at twelve and eighteen respectively as found by the trial judge. The factual error, however, has no impact on the disposition of this appeal.

(continued)

(continued)

9

A-5889-04T4

RECORD IMPOUNDED

February 22, 2006