NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2682-06T42682-06T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.B.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF A.K.B., a minor.

________________________________________________________________

 

Submitted February 6, 2008 - Decided

Before Judges Cuff and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG 07-154-06.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mervin A. Bourne, Jr., Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, C.B., appeals from a Family Part judgment that terminated her parental rights to her son, A.K.B., born on January 2, 2005, and awarded guardianship to the Division of Youth and Family Services (DYFS or Division) for the purpose of consenting to adoption. The guardianship judgment also terminated the parental rights of K.M., the child's father. K.M. surrendered his parental rights on September 28, 2006, and he has not appealed.

C.B. urges reversal of the trial court's decision, arguing DYFS failed to establish, by clear and convincing evidence, each of the four integrated and necessary statutory criteria to end a parent-child relationship. N.J.S.A. 30:4C-15.1(a). After reviewing the record and the applicable law, in light of the contentions advanced on appeal, we conclude the trial court's findings are supported by clear and convincing evidence and its conclusions predicated on those findings are legally sound. We affirm.

When reviewing judgments to terminate parental rights, we remain mindful that the federal and state constitutions protect the integrity of the family unit. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 599 (1986). Nevertheless, the State's role of parens patriae historically imposes a responsibility to protect the welfare of children from the probability of serious physical, emotional or psychological harm resulting from the actions or omissions of their parents. N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 110 (App. Div.), certif. denied, 180 N.J. 456 (2004). See also N.J.S.A. 9:6-8.8a. Thus, the fundamental right of a parent to enjoy a relationship with a child is not absolute. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982); In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999); In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

Our Legislature has recognized that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). The best interests standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, and codified in N.J.S.A. 30:4C-15.1(a), requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:

(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(a).]

These requirements are not discrete, but overlap to provide a composite picture of what may be necessary to advance the best interests of a child. The considerations involved in determining parental fitness are extremely fact sensitive and require particularized evidence, which addresses the specific circumstances present in each case. K.H.O., supra, 161 N.J. at 346-48.

We must defer to a trial judge's findings of fact if supported by clear and convincing evidence in the record. N.J. Div. of Youth and Family Servs. v. P.P, 180 N.J. 494, 511 (2004); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993). Particular deference is afforded to decisions on issues of credibility. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). There is an exception to that general rule of deference: we expand the scope of our review where the issue to be decided is an "alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." J.T., supra, 269 N.J. Super. at 189. Despite such circumstances, deference will still be accorded to the trial judge's findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken. Id. at 188.

On appeal C.B. argues:

POINT I.

THE TRIAL COURT ERRED IN 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 THE HEALTH AND DEVELOPMENT OF THE CHILD WAS AND CONTINUED TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

(B) THE PARENT IS WILLING OR ABLE 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 HELP C.B. CORRECT THE CIRCUMSTANCES WHICH LED TO HER CHILD'S PLACEMENT OUTSIDE THE HOME.

(D) TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

C.B. suggests the experts and the court failed to adequately consider her regular participation in visitation with her son and her attendance in the Babyland program for sixty-five hours over a period of approximately six months. C.B. additionally argues the Division failed to provide a residential treatment placement for teen mothers, which would have allowed her to reside with her son while obtaining necessary psychological counseling and developing caregiver skills.

We find these arguments unavailing and we are convinced that Judge Grant's factual findings are fully supported by clear and convincing evidence in the record and further, that his conclusions are consistent with controlling legal principles. We make the following brief comments.

Judge Grant's opinion makes note of C.B.'s Babyland attendance and the Babyland report was admitted into evidence. The report generally recites the type of information provided to C.B. on a number of issues including tobacco and alcohol abuse, car seat safety, planned parenthood, coping skills, and caring for a newborn. The Babyland staff representative had only one opportunity to view C.B. with A.K.B., which occurred on March 8, 2005. On April 6, 2005, C.B. and her mother were arrested and she was not released from detention until May 15, 2005. Babyland's instruction ceased in June 2006. At that time, C.B. was instructed to obtain individual counseling and to complete high school. C.B. was again confined in detention from August 1, 2006 to August 24, 2006.

The limited Babyland narrative of topical instruction on child care issues neither addresses C.B.'s identified mental health needs, which include suicidal ideations and oppositional-defiant behavior, nor her drug use. These deficits primarily caused C.B.'s inability to provide a stable and nurturing environment for her son, who has continuously remained with his foster parents from nine days of age.

Contrary to C.B.'s suggestion, incidents where she demonstrated defiant and oppositional conduct cannot be ignored merely because they are outweighed by the number of visitations that ran smoothly. So too, C.B.'s positive drug test on April 26, 2006, is not eradicated by a subsequent negative test. The balancing test required by the court when weighing the facts presented in a termination of parental rights matter is not a mere tallying of positive and negative occurrences. As properly identified by Judge Grant, the court's focus is "on the effect of harms arising from the parent-child relationship over time on the child's health and development." KHO, supra, 161 N.J. at 348.

Regarding the Division's efforts, the initial proposal to place C.B. in a residential counseling facility was changed after C.B. voiced frustration with the delay and suggested it was "tempting" to flee with the child. That comment, which was never denied by C.B., when juxtaposed with C.B.'s demonstrated oppositional-defiant behaviors, posed too high a risk for A.K.B.'s safety. The Division provided various counseling services to address C.B.'s mental health needs. C.B.'s tragic life circumstances, which included interaction with DYFS as a child, domestic violence, physical and sexual abuse have contributed to C.B.'s emotional dysfunction. After reaching age eighteen, C.B. terminated counseling, she had previously rejected the use of medication to ameliorate psychological issues, and declined to participate in in-home counseling. Although C.B. has, at times, demonstrated an ability to cooperate with authorities and learn necessary life skills, she thereafter dashes her efforts by committing acts of violence, criminal misconduct or drug use.

"A child is not chattel in which a parent has an untempered property right" and should not "be held prisoner of the rights of others, even those of his or her parents." C.S., supra, 367 N.J. Super. at 110-111. New Jersey's strong public policy favors permanency. K.H.O., supra, 161 N.J. at 357. The emphasis of the Federal Adoption and Safe Families Act of 1997, 42 U.S.C.A. 103(c)(4), shifts from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being. See N.J.S.A. 30:4C-15; see also C.S., supra, 367 N.J. Super. at 111. Children have an essential and overriding interest in stability and a permanent home. J.C., supra, 129 N.J. at 26. The Division's effort to reunite C.B. and A.K.B. failed. A.K.B.'s best interests require that he remain in the permanent, safe, and stable home of his foster parents, who have requested adoption, and that C.B.'s parental rights be severed. In re Guardianship of K.L.F., 129 N.J. 32, 43-44 (1992); C.S., supra, 367 N.J. Super. at 110.

After our consideration of defendant's arguments and the submissions of both parties in light of the record and applicable law, we discern no error in the judgment under appeal, and we, therefore, affirm substantially for the reasons stated by Judge Grant in his comprehensive thorough and thoughtfully written thirty-six page decision dated December 8, 2006.

 
Affirmed.

(continued)

(continued)

9

A-2682-06T4

RECORD IMPOUNDED

March 3, 2008