NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.D. AND C.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6253-04T46253-04T4

A-0027-05T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.D.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF J.D.,

a Minor.

__________________________________

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.H.

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF J.D.,

a Minor.

________________________________________

 
Submitted January 17, 2006 - Decided February 15, 2006

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-156-04.

Yvonne Smith Segars, Public Defender, attorney for appellant R.D. (Gladys Moriarty, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant C.H. (William J. Sweeney, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lauren F. Carlton, Assistant Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor (Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

R.D. and C.H., the biological mother and father, respectively, of J.D., a boy born December 6, 2002, appeal separately from a final judgment entered on June 16, 2005, terminating their parental rights to J.D. For reasons stated, we affirm.

Following an in-home delivery, J.D. tested positive for both cocaine and opiates. Upon J.D.'s release from the hospital, the New Jersey Division of Youth and Family Services (DYFS) filed a complaint seeking legal and physical custody of J.D. on December 19, 2002. On that date, the court entered an order to show cause directing that J.D. be placed in the immediate custody, care, and supervision of DYFS, and set an initial return date for January 30, 2003, for the parents to show cause why an order should not be entered continuing J.D. in the care and supervision of DYFS. On January 21, 2003, J.D. was placed in care with his foster mother, who has continued to care for him since that date, and desires to adopt J.D. J.D. has never resided with either of his natural parents.

Because of the failure of both parents to fully or partially comply with various court ordered referral services and programs, including a drug inpatient rehabilitation program by R.D., and parenting skill classes by C.H., DYFS filed its guardianship complaint seeking termination of both parents' parental rights on March 17, 2004.

The matter was tried before Judge DeCastro on May 31, and June 1, and 3, 2005. R.D. failed to appear on the first day of trial, but did appear on the second day and was permitted to reopen the record. On June 15, 2005, Judge DeCastro issued a written opinion terminating the parental rights of both parents and placing J.D. in the guardianship of DYFS for all purposes, including consent to adoption. An order confirming the court's decision was entered on June 16, 2005.

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 the statute which provides in pertinent part as follows:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" . . . if 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-15.1]

The four statutory criteria "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).

On appeal, R.D. does not challenge the court's findings and conclusions concerning the first prong of the "best interests" test, but only challenges the court's findings and conclusions concerning the remaining three prongs:

POINT I.

THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE SUPPORTING THE TRIAL COURT'S FINDINGS THAT THE SECOND, THIRD AND FOURTH PRONGS OF THE "BEST INTERESTS" TEST WERE PROVEN BY THE STATE.

(A)

THE STATE DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT R.D. WAS UNWILLING TO ELIMINATE A HARM TO HER CHILD OR[]THAT THE STATE PROVIDED REASONABLE SERVICES TO ASSIST IN A REUNIFICATION PLAN.

(B)

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

C.H., however, challenges the court's findings and conclusions on each prong of the "best interests" test:

POINT I.

SUBSTANTIAL CREDIBLE EVIDENCE DID NOT EXIST SUPPORTING THE COURT'S FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

(A)

THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILD WAS AND WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

(B)

THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT A FINDING THAT THE APPELLANT WAS UNWILLING OR WAS UNABLE TO ELIMINATE THE HARM FACING THE CHILD.

(C)

THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO C.H. AND EXPLORE ALTERNATIVES TO TERMINATION.

(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.

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

Judicial determinations of whether DYFS has established each of the four parts of the required statutory standard to support termination of parental rights of a natural parent are fact sensitive. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005). A trial judge is required to sift through the evidence presented in the case, make judgments concerning the credibility of witnesses and determine whether DYFS has established each of the four statutory criteria by clear and convincing evidence. 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 considered the arguments advanced by the appellants in light of the record below, and for reasons stated by Judge DeCastro in her thoughtful and comprehensive decision of June 15, 2005, we conclude that the evidence clearly and convincingly establishes that the child's best interests, assessed under statutory standards set forth in N.J.S.A. 30:4C-15.1a, warrants termination of R.D. and C.H.'s parental rights. See K.H.O., supra, 161 N.J. at 348.

 
Affirmed.

 

The appeals were consolidated for purposes of disposition by order of September 2, 2005.

R.D. is also the biological mother of T.D., born November 22, 1980, and M.D., born October 15, 1981. Both children, who were previously under the care of their maternal grandmother, have reached the age of majority, and are not subject to this guardianship proceeding.

(continued)

(continued)

8

A-6253-04T4

RECORD IMPOUNDED

February 15, 2006