NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. T.J. and D.C., Jr.

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1883-07T41883-07T4

A-1884-07T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.J. and D.C., Jr.,

Defendants-Appellants.

___________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF D.B.C., III,

a Minor.

________________________________________________________________

 

Submitted May 6, 2009 - Decided

Before Judges Stern, Lyons and Espinosa.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-76-06.

Yvonne Smith Segars, Public Defender, attorney for appellant T.J. (Janet A. Allegro, Designated Counsel, of counsel and on the briefs).

Yvonne Smith Segars, Public Defender, attorney for appellant D.C., Jr. (Celeste Dudley-Smith, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Deirdre C. Fichter, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor D.B.C., III (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

T.J. and D.C. are the biological parents of D.B.C. ("Daniel"), and, in this consolidated appeal, each appeals from the final order terminating his and her parental rights. Each contends that the New Jersey Division of Youth and Family Services ("DYFS") failed to present clear and convincing evidence of the four prongs of N.J.S.A. 30:4C-15.1(a) required to warrant termination. In addition, T.J. claims that the trial court erred in declining her request for an in camera interview of her four older children, who were not the subject of this action.

We adopt the factual findings of the trial court in its written decision dated September 26, 2007, based on substantial evidence in the record, and note only the following salient facts.

T.J. has five children, none of whom are in her custody. Daniel, her youngest, was born on December 9, 2004, just one month after T.J. entered a guilty plea to one count of endangering the welfare of a child, a second degree offense, N.J.S.A. 2C:24-4a, arising from her abuse and neglect of her older children. Daniel was born extremely premature, with multiple serious medical conditions that required admission to the neo-natal intensive care unit and treatment that included an incubator, ventilator and a feeding tube. He required surgery for eye disease and treatment for lung disease and remained hospitalized until July 2005.

In February 2005, DYFS approached T.J. about signing an Immediate Consent for Placement authorizing foster care for him. She refused and would only agree to allow a family member to care for him. However, of the two family members proposed, one was ruled out because she was on the DYFS perpetrator list and the other declined.

On March 3, 2005, DYFS's petition for custody of Daniel was granted by the court. From his birth to the trial of this matter, Daniel was never in the custody of T.J., D.C. or any of their family members. After his discharge from the hospital, Daniel was initially placed with a Special Home Service Provider due to his medically fragile state. In March 2007, after two more placements, he was placed with his present foster father, "Curt Blaine," where he has thrived. Mr. Blaine and his civil union partner hope to adopt Daniel if that option becomes available.

Bonding evaluations conducted of Daniel with his biological parents provided the basis for expert testimony that Daniel did not identify T.J. as his mother and, although familiar with D.C., Daniel did not have a strong attachment to him.

At the time of Daniel's birth, T.J. tested positive for marijuana use and admitted that she was unable to care for him. In February 2005, she was sentenced to probation for her endangering the welfare of a child conviction. Just six months later, she was charged again with endangering the welfare of a child. A violation of probation was filed against her in February 2007 based upon that charge, her failure to report to her probation officer and testing positive for drug and alcohol use while on probation.

For much of Daniel's life, D.C. has been incarcerated. There is no evidence that D.C. has abused any of his children but he has failed to provide for Daniel. The permanency plan he proposes is that Daniel live with T.J.'s mother. This plan was also proposed by T.J. and was rejected by DYFS, as T.J.'s mother is already heavily stressed by caring for T.J.'s four older children and had even stated an intention to return the children to DYFS.

DYFS has made substantial efforts to assist T.J. and D.C. "to correct and overcome [the] circumstances that necessitated the placement of [Daniel] into foster care." In re Guardianship of K.H.O., 161 N.J. 337, 354 (1999). However, the parents' history in responding to these services is marked more by a failure to accept them and follow recommendations than any cognizable degree of active participation.

On appeal, T.J. raises the following issues:

POINT I

THE TRIAL COURT ERRED IN DENYING T.J.'S REQUEST FOR THE COURT TO CONDUCT AN IN CAMERA INTERVIEW OF HER NON-SUBJECT CHILDREN.

POINT II

THERE DID NOT EXIST SUBSTANTIAL CREDIBLE EVIDENCE 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 THE HEALTH AND DEVELOPMENT OF THE CHILD WAS AND CONTINUED TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

B. T.J. IS WILLING OR ABLE TO ELIMINATE THE HARM FACING HER CHILD.

C. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP T.J. CORRECT THE CIRCUMSTANCES WHICH LED TO HER CHILD'S PLACEMENT OUTSIDE THE HOME NOR DID THEY CONSIDER APPROPRIATE ALTERNATIVES OF PLACEMENT.

D. DYFS DID NOT PREVAIL ON PRONG FOUR OF N.J.S.A. 30:4C-15.1A BECAUSE IT DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT CAUSE MORE HARM THAN GOOD.

On appeal, D.C. raises the following issue:

POINT I

THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF DCJR.'S PARENTAL RIGHTS TO DCIII SATISFIED THE BEST INTERESTS CRITERIA.

A. THERE WAS NO CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT THE SAFETY, HEALTH, OR DEVELOPMENT OF DCIII HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP WITH DCJR.

B. THERE WAS NO CLEAR AND CONVINCING EVIDENCE TO SUPPORT A FINDING THAT THE APPELLANT, DCJR. WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING DCIII OR WHETHER SEPARATING DCIII FROM HIS RESOURCE FAMILY WOULD CAUSE SERIOUS AND ENDURING EMOTIONAL OR PSYCHOLOGICAL HARM TO HIM.

C. THERE WAS NO CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP DCJR. CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILD'S PLACEMENT OUTSIDE THE HOME AND ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS HAS NOT BEEN FULLY CONSIDERED.

D. DYFS HAS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATING DCJR'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

N.J.S.A. 30:4C-15.1(a) authorizes DYFS to petition for the termination of parental rights in the "best interests of the child" if the following standards are met:

(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.

The trial court carefully considered each of these prongs and cited adequate, substantial evidence in the record to support its conclusion that each of the prongs had been proven by clear and convincing evidence.

A trial court decision to terminate parental rights is subject to limited appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). If supported by "adequate, substantial, and credible evidence in the record," the trial court's findings of fact are entitled to deference. Ibid. See also Cesare v. Cesare, 154 N.J. 394, 413 (1998)("Because of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding"). The family court's decision to terminate parental rights will not be disturbed "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

Because we find that the trial court's findings are supported by adequate, substantial and credible evidence in the record, we affirm for the reasons set forth in the trial court's written decision.

T.J. also argues that the trial court erred in declining to conduct an in camera interview of her older children. She contends that their out-of-court statements, which were later recanted, were prejudicial to her and that their admission without an interview permitted the court to conclude that she would neglect or abuse Daniel because she had abused her older children. The trial court noted that the evidence included both the statements of abuse as well as the recantations and that the children's involvement was "peripheral."

"It is well established that a reviewing court grants substantial deference to the evidentiary rulings of a trial judge." Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 319 (2006); See also State v. Morton, 155 N.J. 383, 453 (1998), Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). While it is true that an in camera interview of a child may be required "when resolution of a material factual dispute depends upon a child witness's testimony," New Jersey Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 183 (App. Div. 2005), there was no "material factual dispute" as to whether T.J. had abused her other children. T.J. admitted doing so and had even entered a guilty plea to a second degree charge of endangering the welfare of a child based upon such abuse. The trial court's finding that T.J. had abused her other children was therefore based upon competent, credible evidence and not upon "pure speculation," as was the case in New Jersey Division of Youth and Family Services v. L.A., 357 N.J. Super. 155, 168-69 (App. Div. 2003). Under the facts of this case, an interview of T.J.'s other children was not required and we concur with the trial court's exercise of discretion in declining to interview them.

Affirmed.

 

Pseudonyms are used to preserve the privacy of the child.

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A-1883-07T4

RECORD IMPOUNDED

June 11, 2009