DIVISION OF YOUTH AND FAMILY SERVICES v. D.C. and W.H.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2680-06T42680-06T4

A-2681-06T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.C. and W.H.C.,

Defendants-Appellants.

_____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF D.L.C., Minor.

_______________________________________

 

Submitted January 29, 2008 - Decided

Before Judges Coburn and Chambers.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, FG-06-23-06.

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

Yvonne Smith Segars, Public Defender attorney for appellant W.H.C. (Ruth Harrigan, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Seetha John-Holmes, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Phyllis G. Warren, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendants D.C., the father, and W.H.C., the mother, appeal from the termination of their parental rights to D.L.C. The trial was held on August 28, November 6, and December 4, 2006. The trial court placed its findings on the record on December 4, 2006, terminating the parental rights of both parents. The guardian for the child supports the termination of parental rights.

This child has never lived with his biological parents. Both the mother and child tested positive for cocaine upon the child's birth on September 30, 2004. Due to this exposure to cocaine, the child was born prematurely and underweight with an enlarged heart and a small head circumference. While the father testified that he was unaware the mother was using cocaine when she was pregnant, the trial court did not find that testimony credible. The trial court found incredible the mother's explanation that she tested positive for cocaine because she was doing undercover work for the police and was thereby exposed to cocaine.

Shortly after birth, the child was placed in foster care, where he has remained. At the time of trial, the New Jersey Division of Youth and Family Services (DYFS) planned to place him in a preadoptive home. The child has developmental and speech delays and requires speech and occupational therapy. Bonding evaluations indicate that he is not bonded to either parent and that termination of the parental relationship is "highly unlikely" to result in "serious or enduring harm" to the child.

The mother has a long history of drug use. Indeed, on May 3 and May 18, 2006, while this case was pending, she tested positive for cocaine. She did not attend the drug treatment programs made available to her by DYFS. The trial court found that "[s]he has a very serious substance dependence. Mental health problems . . . significantly decrease her parenting capacity to provide a minimum level of safe, reliable, consistent and stable parenting for her son. Placement of this child with [the mother] is highly likely to place him at high risk for harm." Dr. Linda Jeffery, a psychologist who conducted a bonding and psychological evaluation of the mother, found that the mother had a history of drug use and depression, and was unprepared for even minimal parenting. While the mother's visits with the child initially were consistent, over time they became sporadic. During a portion of this time she was incarcerated. The mother attended only two of eight parenting classes. In her bonding evaluation for the mother, Dr. Jeffery found that the child exhibited an insecure attachment to the mother and that severance of the bond was "highly unlikely to cause him serious and enduring harm."

While the father is not a drug user, the trial court found that he was unable to sever his relationship with the mother, and that relationship presented a threat of harm to the child. At the hearing, the father asserted that three months earlier, he had obtained a residence separate from the mother. The trial court found, however, that this separate household was a sham and that the father continued to maintain a relationship with the mother. The trial court did not believe that the father would be able to keep the child safe and secure from the mother. The father has some criminal history and has been incarcerated three times since the child was born. Dr. Jeffery found that based on a psychological evaluation conducted in May 2006, the father's "capacity to provide safe and stable parenting for his son is severely decreased by his personality and emotional problems." The doctor did not believe that the father could protect the child from the mother. The father also missed numerous visits with the child. While some of those missed visits were due to the fact that he was in jail, the trial court found that his time in jail did not account for all of the missed visits. He attended seven of eight parenting classes. In her bonding evaluation for the father, Dr. Jeffery found no parental bond between the child and the father, and concluded that severing the relationship was "highly unlikely to cause [D.C.] serious and enduring harm."

The trial court applied the four prong test for the termination of parental rights under N.J.S.A. 30:4C-15.1(a), and found that DYFS had proven all four prongs by clear and convincing evidence.

Under prong one, the court must be satisfied by clear and convincing evidence that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611-12 (1986) (holding that the standard of proof for termination of parental rights is clear and convincing evidence). Here, the trial court found that the mother's drug use during her pregnancy physically harmed the child and her continued drug dependency would harm the child. The father, by allowing and enabling the mother's drug use, contributed to the harm to the child, and his inability to separate himself from the mother would continue to harm the child, since the child would be exposed to the mother if he were placed with the father.

The second prong requires a showing that "[t]he 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 or permanent placement will add to the harm." Id. at 30:4C-15.1(a)(2). Here the trial court found that the mother, through her continued drug use, was unable or unwilling to eliminate the harm, and that the father, due to his unwillingness or inability to separate from the mother, was also unwilling or unable to eliminate the harm posed by the mother's drug abuse. As a result, the court concluded that both parents were unable to provide a safe and stable home for the child.

The trial court also found that the third prong was satisfied. Under the third prong, DYFS must have made "reasonable efforts to provide services to help the parents correct the circumstances which led to the child's placement outside the home," and the court must have "considered alternatives to termination of parental rights." Id. at 30:4C-15.1(a)(3). The mother did not attend any of the drug treatment programs offered her. While the father did attend drug, psychological and psychiatric evaluations required by DYFS, he had taken only seven of the eight required parenting classes over the course of two years. More importantly, he had not separated from the mother and could not offer the child a safe and stable home.

The trial court also found that the fourth prong was satisfied. Under that prong, DYFS must show that "[t]ermination of parental rights will not do more harm than good." Id. at 30:4C-15.1(a)(4). The bonding evaluations of both parents indicated that the termination of parental rights would be highly unlikely to cause the child any enduring or serious harm. We note that in her bonding evaluations for both parents, Dr. Jeffery stated that the child had an immediate need for a permanent, stable caregiver attuned to his needs.

On appeal, the mother raises the following arguments:

POINT I

SUBSTANTIAL CREDIBLE EVIDENCE DID NOT EXIST TO SUPPORT THE COURT'S FINDINGS THAT THE 'BEST INTERESTS' TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

A. DYFS FAILED TO SATISFY THE REASONABLE

EFFORTS STANDARD BECAUSE IT UNILATERALLY

CEASED ALL EFFORTS TO PROVIDE SERVICES

TO THE DEFENDANT WITHOUT JUDICIAL

APPROVAL.

The father raises the following arguments:

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 WERE

[sic] 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 D.C.

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.

The father raises these arguments by way of his reply

brief:

POINT I

RESPONDENT'S BRIEF TOTALLY IGNORES THE SUPREME COURT'S TEACHINGS IN G.L. REGARDING ATTRIBUTION OF ONE SPOUSE'S MISCONDUCT TO THE OTHER SPOUSE.

POINT II

THE DIVISION'S ASSERTION THAT D.L.C. WILL NOT SUFFER ANY HARM FROM TERMINATION IS UNFOUNDED.

The scope of our review is limited. We will not overturn the factual findings and legal conclusions of the trial court unless we are "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." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). In a case in which the evidence is largely testimonial, we give special deference to the fact finding of the trial court, since it is better able to determine the credibility of the witnesses due to the opportunity to hear and observe their testimony. Cesare v. Cesare, 154 N.J. 394, 412 (1998). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). Further, we must accord deference to the fact finding of the family court due to its special expertise in this kind of litigation. Cesare v. Cesare, supra, 154 N.J. at 413. "Appellate review of a trial court's decision to terminate parental rights is limited and the trial court's findings 'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002).

In this case, the trial court carefully weighed the evidence and set forth a comprehensive oral decision that separately considered the evidence as to each parent. The trial court reviewed the circumstances of each parent independently, since the fact that one parent is unfit does not necessarily mean that the other one is also unfit. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 288-89 (2007). Nevertheless, the fact that a parent fails to protect his child from the harmful effects of the conduct of the other parent is relevant when determining whether to terminate his parental rights. See id. at 288-90 (holding that the harmful conduct of the mother was relevant in determining the parental fitness of the father, because both parents continued to live together). Thus, the trial court correctly considered the fact that the father was unable or unwilling to end his relationship with the mother whose serious substance abuse problems presented a threat to the children. This case is distinguished from N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 607-08 (2007), where the threat that the father posed to the child was improperly considered in determining whether to terminate the mother's parental rights because the mother had stopped living with the father and was willing and able to prevent the father from having unsupervised visits with the child.

The mother maintains that prong three has not been met, because DYFS failed to locate an inpatient drug treatment program for her. The DYFS case manager testified that all three drug evaluations of the mother, beginning in December 2004, recommended inpatient treatment. The case manager acknowledged that while the mother has continued to test positive in drug screenings, DYFS has been unable to offer her an inpatient facility with a bed available between 2004 and 2006. DYFS attempted to place the mother in at least seven inpatient facilities in New Jersey, none of which would take her due to her health risks. DYFS did not look at any programs outside of the state.

Arrangements were made for the mother to attend temporarily an outpatient program. DYFS also provided her with transportation to this program. However she failed to attend, claiming that she could not wake up early enough to ride the van due to the medication she was taking. The DYFS case manager testified that although this program was not in lieu of the inpatient treatment that the mother needed, it would help her start treatment. Arrangements were made for her to attend this program on three separate occasions but she did not do so.

The mother testified that in October 2006, while this trial was pending, she attempted to get into a twenty-eight day inpatient program at Rancocas Hospital. She testified that this program accepted her Medicaid card and could deal with her heart condition.

The trial court concluded that even if the mother's health problems were legitimate, DYFS still exercised reasonable efforts, and the mother should have made the effort to attend the outpatient program that was offered. We concur with this assessment.

Our careful review of the record reveals credible evidence to support the trial judge's findings that all four prongs set forth in N.J.S.A. 30:4C-15.1(a) have been met by clear and convincing evidence as to each parent, and that termination of the parental rights of both parents is in the best interests of the child.

Affirmed.

 

(continued)

(continued)

12

A-2680-06T4

RECORD IMPOUNDED

March 12, 2008