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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6256-04T46256-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

L.M.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF D.H., MINOR.

________________________________________________________________

 

Submitted December 20, 2005 - Decided January 13, 2006

Before Judges Collester and Lisa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FG-16-17-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Carolann M. Fritz, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor child D.H. (Guadalupe Casillas, Assistant Deputy Public Defender, on the brief).

PER CURIAM

L.M. appeals from a judgment of guardianship terminating her parental rights to her son, D.H., who was born on January 2, 2003. L.M. raises these arguments on appeal:

POINT I

THERE WAS NOT SUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE COURT'S DECISION THAT NO ALTERNATIVE TO TERMINATION OF L.M.'S PARENTAL RIGHTS EXISTED, PARTICULARLY AS NO ADOPTIVE HOME AWAITED D.H.

POINT II

GIVEN THE FACT THAT L.M. IS ILLITERATE THERE WAS NOT SUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE COURT'S DECISION THAT THE DIVISION MADE REASONABLE EFFORTS AS REQUIRED BY N.J.S.A. 30:4C-15.1(a)(3).

POINT III

THE STATE DID NOT PRESENT SUFFICIENT CREDIBLE EVIDENCE TO MEET ITS BURDEN UNDER N.J.S.A. 30:4C-15.1(a)(4) OF PROVING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT CAUSE MORE HARM THAN GOOD.

We have reviewed the record and conclude that the trial judge's findings are well supported by the evidence, R. 2:11-3(e)(1)(A), and that L.M.'s appeal arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated by Judge Rothstadt in his thorough and well-reasoned written opinion dated June 16, 2005, accompanying the judgment for guardianship entered on that date. We add these comments.

L.M. was nineteen years old when she gave birth to D.H. L.M. had three previously-born children. L.M. lived in a household with her mother, C.H., and C.H.'s other five children, one of whom, a twelve-year-old boy, was an adjudicated sex offender. L.M., C.H. and all of the children lived in a small apartment. C.H. provided substantial care for L.M.'s children.

L.M. had a severe alcohol abuse problem. She began drinking alcohol at age thirteen and consumed substantial quantities on a daily basis. She drank alcohol continuously throughout her pregnancy with D.H. She obtained no prenatal care. D.H. was born premature, underweight, and with significant health problems. Shortly after being discharged from the hospital after his birth, D.H. was losing weight, was dehydrated, was not eating, and had to be rushed back to the hospital, where he was admitted for about one month to restore his health. The hospital made a referral to the Division of Youth and Family Services (DYFS or the Division).

One day after D.H.'s hospital admission, L.M. and D.H.'s father, J.H., were both incarcerated. DYFS obtained the consent of both parents for a voluntary six-month placement. D.H. was placed in a special foster home for children with health problems. D.H. has been found to suffer from asthma, hypertrophy of the right side of his body which puts him at increased risk for Wilm's Tumor (a form of renal cancer), congenital torticollis, a flattening of his head on one side, impaired hearing and constant drooling. He requires frequent visits to physicians and therapists, as well as in-home specialized care by his caregiver.

The Division made numerous referrals for L.M. to obtain counseling and treatment to address her substance abuse problem and acquire parenting skills. Her compliance was sporadic. During the course of this litigation, she was incarcerated on five separate occasions between February 2003 and August 2004. Due to her frequent periods of incarceration, she was unavailable to parent her other three children, who remained in the care of her mother. The Division inquired of L.M.'s mother regarding her availability to accept custody of D.H. She stated she was unwilling to do so because she already had more responsibility than she could handle with her own children and L.M.'s three healthy children, and because her living arrangements were so confined. Although at the time of trial C.H. expressed a willingness to take D.H. into her home, DYFS did not deem this a suitable placement under all of the circumstances, including the large number of children in C.H.'s care, D.H.'s special needs, and the crowded living conditions.

The record establishes that L.M.'s three older children were well cared for, neat and clean. However, L.M.'s mother was substantially responsible for their care.

Psychological evaluations established that L.M. was borderline mildly retarded, had a very low literacy level, suffered from alcohol dependency and either an antisocial personality disorder or antisocial tendencies.

On the eve of trial, L.M. completed a portion of an alcohol abuse program, but follow-up was required. She expressed her intention to pursue and comply with the follow-up treatment. The Division and L.M. each called a psychologist at trial. Both agreed that L.M. was not presently capable of parenting D.H., a medically fragile child. Both agreed that until she was sober for at least one year and completed all required follow-up care for her alcohol abuse, she would not have the potential to be able to understand the requirements for parenting D.H. The psychologist called by DYFS opined that L.M. lacked the initiative to seek assistance and become capable of parenting and would not be able to do so. L.M.'s psychologist was of the opinion that L.M. was psychologically capable of parenting D.H., but could only begin the training required to obtain parenting skills after remaining sober for at least one year and completing the alcohol abuse program. Even then, she would need the assistance of others.

The trial began in April 2005. During the two years and four months of D.H.'s life until that time, L.M. visited with D.H. very infrequently, although DYFS arranged for visitation, including transportation arrangements. L.M. visited with D.H. only five times in 2003, five times in 2004, and not at all in 2005. During the visits, L.M. did not interact with D.H. and required encouragement and direction to feed him. She was unable to sooth him when he cried. During the entire time, C.H. visited with her grandchild only twice, although arrangements were offered to her as well.

The Division's permanency plan is for select home adoption. The present foster parents are not available to adopt, but they are willing to keep D.H. in their custody until a permanent placement is achieved.

"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Moreover, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986) (quoting Santosky v. Kramer, 455 U.S. 745, 787, 102 S. Ct. 1388, 1412, 71 L. Ed. 2d 599, 628 (1982)). Accordingly, courts have consistently imposed strict standards regarding the termination of parental rights. K.H.O., supra, 161 N.J. at 347. However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. This is because the State, as parens patriae, has a responsibility to protect the welfare of children. K.H.O., supra, 161 N.J. at 347.

The standard for determining the termination of parental rights is known as the best interests of the child test, originally set forth in A.W. and now codified in N.J.S.A. 30:4C-15.1a, which authorizes termination if the Division can show:

(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.]

DYFS has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R., 155 N.J. Super. 186, 193 (App. Div. 1977). Moreover, the four criteria overlap with one another to provide a comprehensive standard that identifies a child's best interest. K.H.O., supra, 161 N.J. at 348.

In K.H.O., the Court held that where there is evidence that a bond with a foster parent is strong and that a bond with a natural parent, by comparison, is not as strong, the fourth prong of the best interest standard will be satisfied. Id. at 363. New Jersey has a strong public policy favoring permanency. Id. at 357. In all guardianship and adoption cases, the child's need for permanency and stability must be accorded primary status. Id. at 357-58.

L.M. does not challenge the judge's findings regarding the first and second prongs. She challenges the findings on the third and fourth prongs and argues that the Division improperly rejected the alternative of placing D.H. in his maternal grandmother's care rather than seeking termination of L.M.'s parental rights.

 
The findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, because of the particularized expertise of Family Court judges in family matters, we accord enhanced deference to Family Court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998). From our review of the record, we are satisfied that the record supports the judge's findings that the Division established by clear and convincing evidence all four prongs of the best interest test. Likewise, the judge's finding that placement with the maternal grandmother was an unsuitable alternative is supported by the record. We will not disturb the judge's findings on appeal. The judge properly applied the correct principles of law to his factual findings, and we find no error in the result reached.

Affirmed.

J.H. is also the father of L.M.'s other three children. His parental rights to D.H. were also terminated in this proceeding, but he has not appealed.

(continued)

(continued)

9

A-6256-04T4

RECORD IMPOUNDED

January 13, 2006