NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.M and K.S.S

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1429-07T41429-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.M.,

Defendant,

and

K.S.S.,

Defendant-Appellant,

________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF K.S.S., JR., AND L.S.,

Minors.

_______________________________________

 

Submitted May 14, 2008 - Decided

Before Judges Wefing, Parker and Kestin.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Middlesex

County, No. FG-12-59-07.

Yvonne Smith Segars, Public Defender, attorney

for appellant, K.S.S. (Chanima K. Odoms, Designated

Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for

respondent New Jersey Division of Youth and

Family Services (Elizabeth A. Smith, Deputy

Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for minors K.S.S., Jr., and L.S.

(Noel C. Devlin, Assistant Deputy Public Defender,

on the brief).

PER CURIAM

Defendant K.S.S. appeals from a trial court judgment terminating his parental rights to his two sons, K.S.S., Jr., now three years old, and L.S., now two years old. Their mother, M.M., made an identified surrender and has not participated in this appeal. After reviewing the record in light of the contentions advanced on appeal, we affirm.

K.S.S. raises one argument on appeal:

I THE TRIAL COURT ERRED IN TERMINATING THE PARENTAL RIGHTS OF THE DEFENDANT AS DYFS FAILED TO PROVE BY CLEAR & CONVINCING EVIDENCE THE FOUR PRONG TEST OUTLINED IN N.J.S.A. 30:4C-15.1(a)

A. The evidence adduced at trial did not support the court's finding that the State met prong one of N.J.S.A. 30:4C-15.1(a)

B. The evidence adduced at trial did not support the court's finding that the State met prong two of N.J.S.A. 30:4C-15.1(a)

C. The evidence adduced at trial did not support the court's finding that the State met prong four of N.J.S.A. 2C:30-15.1(a)

Defendant does not challenge the sufficiency of the evidence with respect to the third prong.

Although a parent's right to maintain a relationship with his or her child is fundamental and of constitutional dimension, it is not absolute. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). The State, as parens patriae, "has a responsibility to protect the welfare of children and may terminate parental rights if the child is at risk of serious physical or emotional harm." M.M., supra, 189 N.J. at 279.

A court may not, however, terminate that relationship unless the State has proven four elements: that the parental relationship has endangered the child's safety, health or development; that the parent is unable or unwilling to alleviate that harm or provide a safe and stable home for the child; that the Division of Youth and Family Services (DYFS) has made reasonable efforts to help the parent and that the court has considered whether there are reasonable alternatives to termination of the parent's rights; and that terminating the parent's rights will not do more harm to the child than good. N.J.S.A. 30:4C-15.1(a). In recognition of a parent's fundamental liberty interest in raising his or her child, the State must establish each of these four elements by clear and convincing evidence. In re Guardianship of K.H.O., 161 N.J. 337, 363 (1999).

Although "[t]he law clearly favors keeping children with their natural parents and resolving care and custody problems within the family," In re Guardianship of J.C., 129 N.J. 1, 7-8

(1992), "the balancing formula should tip on the side of protecting children, and not on the side of protecting the rights of parents." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 76 (App. Div. 2003), aff'd in part and modified in part, 179 N.J. 264 (2004).

Guided by these legal principles, we turn to the facts at hand. K.S.S., Jr., was born on June 2, 2005, in Robert Wood Johnson Hospital; following his birth, the hospital contacted DYFS because he had tested positive for cocaine. Defendant K.S.S. was incarcerated at the time and unable to care for his son. As a result, when the boy was able to be discharged from the hospital, he was placed temporarily with his paternal grandmother.

K.S.S., Jr., remained with his grandmother for approximately ten months, at which point she requested that he be removed. She suffered from arthritis, and her condition had advanced to such a degree that it was difficult for her to lift the baby. K.S.S., Jr., then went to live with C.C., one of defendant's cousins. He has remained with her ever since.

At about the same time K.S.S., Jr., moved to C.C.'s home, L.S. was born. L.S. was premature, and he weighed less than four pounds at his birth. He also had been exposed prenatally to drugs. His mother admitted using drugs a month before he was born. K.S.S. was again incarcerated when L.S. was born, did not have a stable address and had not complied with DYFS's request to participate in several programs.

Because neither M.M. nor K.S.S. could care for L.S. on his discharge from the hospital, he was originally placed with R.R., his maternal uncle. That placement did not last, however, because in September 2006, R.R. separated from his family and was unable to care for a four-month-old baby on his own. C.C., who was caring for K.S.S., Jr., was unable to take in L.S. because she was already caring for five children. L.S., as a result, was placed with a foster family, where he has remained since he was less than five months old.

Both boys suffer from asthma, K.S.S., Jr., more severely than his brother L.S. K.S.S., Jr., has had multiple hospitalizations for his asthma, and his medication has to be carefully monitored on a daily basis.

In May 2006, shortly after the birth of L.S., K.S.S. tested positive for cocaine. He was ordered to participate in a substance abuse program, which he completed. He has suffered periodic relapses, however. At the time of trial, the longest period for which he had remained drug-free was six months.

In October 2006 K.S.S. was admitted to U.M.D.N.J. in Middlesex County, stating that he was having trouble controlling his behavior and that he was afraid he could hurt someone. He remained in the hospital for seven days. He was discharged with a diagnosis of impulse control disorder; antisocial personality disorder; oppositional defiant disorder; cannabis abuse, continuous; and cocaine abuse, unspecified.

K.S.S. has been unable to maintain steady employment and stable housing. At the time of trial, he was undoubtedly making efforts to improve himself. He had obtained a job one week before the trial. While it was a full-time position, he was on probation for ninety days. He was also studying to qualify for a position in medical billing. He did not yet have an apartment, however. He attributed the delay to problems he was experiencing in having a security deposit returned to him. In the interim, he was renting a room.

K.S.S. contends that the trial court erred in finding that DYFS had proven the first prong of the statute. He bases his argument on the fact that it was M.M.'s use of drugs while she was pregnant that resulted in the children's prenatal exposure to narcotics. He maintains that his actions did not pose a risk of harm to the boys' safety, health or development.

We find this argument unconvincing. It overlooks K.S.S.'s responsibility, as the father of these children, to take steps to protect them from that exposure. His failure to act endangered their safety, health and development. Further, his incarceration at the time of their births prevented him taking a role in their care.

K.S.S. argues that the trial court erred in finding that DYFS had proven the second prong of the statute. K.S.S. admitted that by the time of trial he was still unable to provide a stable home for the boys but he stressed he was attempting to do so. The trial court recognized those attempts and commended K.S.S. for his actions. The trial court also recognized, however, that the two children could not wait to learn whether K.S.S. would be successful in his efforts.

In addition to proof that the parent is unwilling or unable to eliminate the harm or provide a safe and stable home, the second prong of the statute includes as an element that "the delay of permanent placement will add to the harm." K.S.S., Jr., and L.S. were entitled to a permanent resolution of their placements. It would be fundamentally unfair to these boys, who have already waited four and two years, respectively, to make them wait even longer.

Finally, K.S.S. challenges the trial court's finding with respect to the fourth required element, that termination of parental rights will not do more harm than good.

Edward E. Johnson, Ph.D., testified as an expert on behalf of DYFS. He conducted a bonding evaluation with respect to L.S. and the foster parents with whom he had resided since he was four and one-half months old. Dr. Johnson testified that there was a positive nurturing relationship between L.S. and his foster parents and that to remove him from them "would be likely to inflict irreparable psychological harm upon him." According to Dr. Johnson, that harm would be lasting and enduring.

Karen D. Wells, Psy.D., also testified as an expert on behalf of DYFS. Dr. Wells conducted a psychological evaluation of K.S.S., as well as bonding evaluations between K.S.S., Jr., and C.C. and among K.S.S. and the two boys. Dr. Wells saw K.S.S. in March 2007, several months before the termination trial took place. K.S.S. told Dr. Wells that he estimated at that point that it would take at least one year for him to achieve stability in employment and housing and gain some control over his problems with anger management. Dr. Wells thought that was a realistic time frame. At that time, Dr. Wells diagnosed K.S.S. as having a substance abuse problem and anti-social personality disorder with narcissistic features.

Dr. Wells again saw K.S.S. shortly before the trial commenced. She noted that while K.S.S. had made certain strides, he had suffered a relapse with respect to his use of cocaine, making his continued progress all the more uncertain. This relapse occurred at about the time that K.S.S. lost the apartment he had been renting when it was severely damaged in a flood. The stress he experienced in conjunction with this experience led to his return to using drugs. Dr. Wells noted, in fact, that if K.S.S. had not suffered this relapse, she would have advised DYFS not to proceed to seek termination but to give K.S.S. more time. In response to a query from the court, Dr. Wells said that in her opinion K.S.S. needed an additional nine months to one year of abstinence from drugs and stability in housing and employment before she could consider making a recommendation that the boys be in his care.

Dr. Wells also testified as to the bonding evaluation she conducted for K.S.S. with the boys. She noted that K.S.S. behaved in an entirely appropriate parental role. She said that while the boys responded positively to K.S.S., they did not see him as a parental figure. She said this was particularly true with respect to L.S.

Additionally, Dr. Wells testified as to the bonding evaluation she had conducted between C.C. and K.S.S., Jr. She said the boy was fully integrated into C.C.'s household and that C.C. had told her she was willing both to foster a relationship between K.S.S., Jr., and his brother, L.S., and to K.S.S. having a continuing role in his son's life so long as he continued to stabilize his life and environment. Dr. Wells said she observed a very loving interaction between K.S.S., Jr., and C.C. and that K.S.S., Jr., viewed C.C. as his psychological parent. She said that if the boy were to be removed from C.C.'s care, he would regress in his behavior and development and that his ability to recover from that loss would depend upon the capacities and abilities of his new caregiver. She expressed concern about K.S.S.'s ability to alleviate this risk of enduring harm. In essence, each boy has a "stable, permanent placement and a nurturing psychological parent." New Jersey Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 120 (App. Div.), certif. denied, 180 N.J. 456 (2004).

Based upon that testimony, the trial court gave a comprehensive oral opinion, setting forth its findings and conclusions. The scope of our review of a trial court's factual findings is restricted. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). That is particularly the case in appeals such as the present one. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Such "[d]eference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility' since the trial court has a different perspective by virtue of seeing and hearing the witnesses." C.S., supra, 367 N.J. Super. at 112 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

We have carefully reviewed the record on appeal, and we are satisfied that the judgment entered by the trial court should be affirmed.

Affirmed.

 

(continued)

(continued)

11

A-1429-07T4

RECORD IMPOUNDED

July 8, 2008