NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. H.O.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6748-04T46748-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

H.O.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF D.O. AND A.C., MINORS.

________________________________________________________________

 

Submitted January 24, 2006 - Decided February 9, 2006

Before Judges Collester and Lisa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, FG-19-15-05.

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

Nancy Kaplen, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Victoria De Almeida, Deputy Attorney General, on the brief).

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

PER CURIAM

H.O. appeals from a judgment of guardianship terminating her parental rights to her daughter, D.O., who was born on December 16, 1998, and her son, A.C., who was born on July 28, 2002. H.O. raises these arguments on appeal:

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 CHILDREN WERE 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 CHILDREN.

(C) THE DIVISION DID NOT PROVIDE THE RIGHT KIND OF SERVICES SO AS TO ALLOW THIS FAMILY TO PULL ITSELF OUT OF POVERTY AND WRONGFULLY [REJECTED] THE MATERNAL GRANDMOTHER FOR PLACEMENT.

(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.

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 H.O.'s appeal arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge John J. Callahan in his thorough and well-reasoned oral decision of July 22, 2005. We add these comments.

The Division of Youth and Family Services (DYFS or Division) received its first referral in this matter in January 2003. H.O., the two children, and A.C., Sr., the father of A.C., were living in a trailer, and it was reported to DYFS that the children were being left unattended. Investigation revealed substandard living conditions, including lack of water, lack of heat, and improper hygiene for the children. A.C., Sr. had a serious substance abuse problem, including regular consumption of large quantities of alcohol and daily use of marijuana. D.O. was born prematurely with multiple severe medical problems. She has undergone surgical procedures to correct a cleft lip and for detached retinas in both eyes. She is legally blind and has impaired speech. She also has serious behavioral and mental disabilities. She is a medically-fragile, special-needs child.

After a very temporary stay with H.O.'s mother, H.O., A.C., Sr. and the children moved without notifying DYFS, which had instituted a care plan. One of the features of that plan was that H.O. would not leave the children alone with A.C., Sr. Pursuant to the plan, the Division also referred the parties to a program to assist in finding suitable housing, but they did not respond. Likewise, the Division's efforts to obtain a child study team evaluation for D.O. proved unsuccessful. The Division also made a referral for A.C., Sr. to receive substance abuse treatment, but he did not comply.

In April 2003, when a DYFS representative learned that the family was no longer living at the trailer, the Division was frustrated in its efforts to find them. H.O.'s mother either did not know their whereabouts or would not reveal it to Division representatives. The Division finally learned of the location of the new residence.

The Division received another referral from an anonymous caller that A.C., Sr. was passed out in the front seat of his car, which was parked in a grocery store parking lot, while A.C. was in the back seat screaming and crying. A.C., Sr. was apparently intoxicated with the consumption of alcohol and drugs. This incident was also contrary to the plan by which H.O. would not leave the children alone with A.C., Sr.

On September 19, 2003, the children were removed from H.O. and A.C., Sr. After a brief temporary placement, A.C. was placed with a foster family in January 2004. Because of her special needs, D.O. went through a series of placements. Then, in December 2004, she was placed in the same foster family as her brother. Both children have continuously remained together with that foster family, which wishes to adopt both of them.

After the removal, H.O. and A.C., Sr. moved to Goshen, New York. H.O. regularly visited with the children and acted appropriately during the visitations.

In June 2005, H.O. was incarcerated on burglary and theft charges. By her own account of the incident, she was stealing money to provide bail for A.C., Sr., who had been arrested for outstanding traffic warrants.

The Division engaged the services of Dr. Frank Dyer, a psychologist, to evaluate A.C., Sr. and H.O., and to conduct a bonding evaluation. A.C., Sr. failed to keep his appointment with Dyer. The psychological evaluation of H.O. revealed, in Dyer's opinion, that H.O. was not capable of parenting her children. He noted that she was non-compliant with services offered, was vulnerable to depression, exhibited a detached emotional quality and some antisocial behavior. H.O. essentially denied failures in her parenting of the children and denied or minimized A.C., Sr.'s serious substance abuse problem.

H.O. informed Dyer that her plan, after being released from jail, was to relocate with A.C., Sr. and the children to South Carolina to assist A.C., Sr. in developing a carpet and tile business. H.O.'s persistent attachment to A.C., Sr., with whom she had been living for about six years, was of great concern to Dyer in light of A.C., Sr.'s unstable and detrimental circumstances, to which the children would be continually exposed if the family stayed together. Dyer felt that H.O. lacked the awareness and motivation required to properly care for the children.

Dyer conducted bonding evaluations. The evaluation involving H.O. was done, of necessity, in the jail. H.O. complains that the conditions were inappropriate for the evaluation and the results should be discounted or disregarded. However, the judge was satisfied that the procedure yielded reliable results.

Dyer opined that A.C. has no relationship of any depth with his mother. Dyer found that D.O., who had lived for a longer period of time with her mother, had "some degree of a positive emotional connection" with H.O., which he described as an "attachment." Dyer further opined that A.C. is profoundly bonded to his foster parents, with whom he has lived most of his life, and A.C. would suffer a devastating traumatic loss if removed from them. Dyer found that D.O. was in the process of developing a stronger bond with her foster parents and that removing her from them would be detrimental to her.

Further, with respect to D.O., Dyer commented that returning her to her mother's custody would carry a significant risk of a resumption of medical neglect. The record reflects that while D.O. was in her mother's care, H.O. failed to obtain for D.O. required follow-up medical treatment and speech and behavioral therapy. She allowed D.O.'s teeth to become severely decayed, as a result of which, through DYFS intervention, eight teeth were surgically removed. While in her mother's care, D.O. exhibited severe and extensive fungal infections.

Judge Callahan conducted the trial on July 18, 2005, receiving the testimony of two DYFS case workers, Dyer, and H.O. A.C., Sr. did not attend trial, although his attorney was present and participated. H.O. was still serving her custodial sentence and was transported to the trial by correctional authorities. At trial, H.O. testified that she intended to sever her relationship with A.C., Sr., contrary to what she had told Dyer a month earlier, and contrary to her six-year course of conduct. The judge found the testimony in that regard, and H.O.'s testimony generally, lacking in credibility.

In addition to testimonial evidence, the judge also considered voluminous documentary evidence. The judge credited the opinions rendered by Dyer. At the conclusion of the trial, the judge reserved decision, which he rendered four days later, on July 22, 2005. The judge reviewed in detail and critically analyzed the evidence. He made credibility findings. He found that the Division established by clear and convincing evidence all four prongs of the best interests test. Accordingly, he concluded that the best interests of the children would be served by terminating parental rights.

"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 interests 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.

H.O. challenges the judge's findings on all four prongs. Essentially, she argues that the evidence was insufficient to clearly and convincingly establish any of the prongs. She contends that any shortcoming in the care she was providing for her children was merely the result of poverty, and not neglect. The judge expressly found that neglect and not poverty was the cause of H.O.'s derelictions, and the record supports the finding. H.O. further argues that DYFS failed to consider placement of the children with her mother as an alternative to termination of her parental rights. However, DYFS did consider the grandmother and ruled her out as an inappropriate placement. The grandmother never came forward to DYFS to express an interest in taking the children, nor did she testify at trial. Thus, there is no evidence to refute the propriety of the Division's rejection of the grandmother as a suitable placement. And, H.O. argues that because of the adverse conditions under which the bonding evaluation was conducted, it has not been clearly and convincingly established that termination of her parental rights would not do more harm than good. The judge's contrary finding is supported by the record.

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 interests 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.

The parental rights of A.C., Sr., the father of A.C., and D.B., the putative father of D.O., were also terminated. Neither of those individuals have appealed.

(continued)

(continued)

11

A-6748-04T4

RECORD IMPOUNDED

February 9, 2006