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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6100-06T46100-06T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.B.,

Defendant-Appellant,

and

J.P.,

Defendant.

IN THE MATTER OF THE GUARDIANSHIP

OF

I.B.,

A Minor.

________________________________________________

 

Submitted April 7, 2008 - Decided

Before Judges Collester, C.S. Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-88-06.

Yvonne Smith Segars, Public Defender attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Tara Beth Lefurge, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Christopher A. Huling, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

The Division of Youth and Family Services (Division) commenced this action, seeking the termination of defendant K.B.'s parental rights to her daughter, I.B., who was born on January 24, 2006. Following a non-jury trial, Judge Douglas M. Fasciale rendered an oral decision and entered judgment in favor of the Division.

In appealing, defendant K.B. (defendant) argues that the decision to terminate her parental rights was against the weight of the evidence and that the requirements of N.J.S.A. 30:4C-15.1(a) were not met. We find no merit in defendant's arguments and affirm.

A trial was conducted over the course of five days. At trial, the Division called a case worker and a psychologist to the stand, and offered numerous documents into evidence as well. Defendant did not testify or call any witnesses. At the trial's conclusion, Judge Fasciale rendered an oral decision. He thoroughly described the application of his factual findings to the four prongs of N.J.S.A. 30:4C-15.1(a), which require that the Division prove by clear and convincing evidence that:

(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 . . .;

(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).]

See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-05 (1986).

The judge recounted in his findings that defendant had a long-standing substance abuse problem that had contributed to her five other children being removed from her care. The judge found that at least four of defendant's children tested positive for drugs at birth, that defendant's parental rights to another child were terminated as recently as six months prior to I.B.'s birth, and that defendant's "long history of drug abuse" had not been interrupted with "any significant clean time."

The judge observed that before and after I.B.'s birth, defendant was an in-patient in a drug treatment program. She successfully completed that program and was, at the time of trial, a resident of Madison House where she continued to receive assistance in a structured setting. Although defendant appeared to be doing well at the time of trial, the judge observed there had been relapses in the past. The principal question raised in this case -- the judge correctly recognized -- was whether defendant would "be able to maintain stable housing, employment and remain clean and sober" once outside a supervised institutional setting. Based on the testimony of the case worker and the psychologist called by the Division, both of whom he found credible, the judge held that the history of relapse and defendant's long-term substance abuse problem convinced him that the child's well-being and development would be endangered by a continuation of the parental relationship and that defendant would be unable to eliminate the harm facing the child or provide a safe and stable home for the child.

The judge also found, in reliance upon the psychologist's testimony, that even though defendant was doing well in the structured environment of Madison House, because of the "duration and intensity" of defendant's addiction she was only "in early remission and recovery" and would need "12 months of sobriety outside the controlled environment to ensure that [I.B.] would be safe if returned to her." He also found that "the risk of relapse is high." As a result, because I.B.'s home life with her foster parents was nurturing and stable, and because he determined that the permanency to which I.B. was entitled should not await the considerable period of time required to determine whether defendant would be able to avoid relapse once outside her structured environment, the judge concluded that the first and second prongs of the statutory test had been clearly and convincingly met.

The applicable standard of appellate review requires that we defer to a trial judge's factual findings when they are based on credible evidence in the record. We are not to disturb those findings unless we are convinced 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) (internal quotes and citations omitted); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). After careful review, we conclude that the record contains clear and convincing evidence to support Judge Fasciale's findings. We also conclude that Judge Fasciale thoughtfully applied the correct legal standards to the facts he found in ultimately concluding that all four statutory prongs were met and that termination was required. Accordingly, we discern from the record no sound reason for disturbing the judge's findings and affirm substantially for the reasons set forth in his comprehensive and insightful oral decision.

Affirmed.

The parental rights of J.P., the child's father, were also terminated at the conclusion of the trial. J.P. has not appealed.

I.B. did not test positive for opiates or any other similar substance at birth, but defendant did test positive for methadone, opiates and cocaine on November 4, 2005, a few months prior to I.B.'s birth.

Defendant also asserts that there was insufficient evidence to support the judge's findings on the other statutory prongs. We find those arguments to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

(continued)

(continued)

6

A-6100-06T4

RECORD IMPOUNDED

May 2, 2008