NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.L.D. AND R.N.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3255-08T4

A-3261-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.L.D. AND R.N.D.,

Defendants-Appellants.

 

IN THE MATTER OF THE GUARDIANSHIP OF

A.D., R.D., JR., AND T.I.D.,

Minors.

 

 

Submitted October 15, 2009 - Decided

Before Judges Stern, Lyons, and J.N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-0144-08.

Yvonne Smith Segars, Public Defender, attorney for appellant R.N.D. (Judith Bodin, Designated Counsel, on the brief).

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

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

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for Minors, A.D., R.D., Jr., and T.I.D. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In these consolidated appeals, a mother Rebecca and father Richard appeal from an order entered on January 21, 2009, terminating their parental rights. The three children involved are Ayana, five years-old; Richard, Jr., three years-old; and Tiffani, one year-old. The law guardian for the children supports the termination of Rebecca's and Richard's parental rights. We affirm.

I.

A.

Rebecca, born in 1975, is the mother of ten children, the eldest delivered in 1991. Richard, born in 1973, is the father of five of Rebecca's offspring, including Ayana, Richard, Jr., and Tiffani, who are the subject of this appeal. The other two children of the union of Rebecca and Richard Tia, seven years-old and Kia, six years-old were the subjects of a previous guardianship judgment of the Family Part. On April 13, 2004, the New Jersey Division of Youth and Family Services (DYFS or Division) was awarded guardianship of Tia and Kia by the Family Part, terminating Rebecca's and Richard's parental rights. There was no appeal filed by either parent from this 2004 judgment.

The children of Rebecca initially came under the scrutiny of DYFS in February 1998, when allegations of abuse and neglect surfaced regarding the family's living conditions. These initial allegations were investigated, but deemed unsubstantiated. Subsequently, in November 2001, Rebecca gave birth to Tia. When DYFS learned that both mother and daughter tested positive for cocaine at birth, the Family Part granted the Division custody, care, and supervision of Rebecca's then six children: Talisa (born in December 1991), Odell (born in October 1993), Wanda (born in October 1994), Damon (born in August 1996), Tobe (born in May 1999), and Tia (born in November 2001). In April 2002, the Family Part entered a stipulated finding of abuse and neglect.

While the abuse and neglect litigation was proceeding against Rebecca, her children remained in foster homes under the supervision of DYFS. The Division provided multiple and recurring services to Rebecca, including psychological evaluations, workshops in parenting skills, and substance abuse therapy. In 2003, Rebecca's children were temporarily returned to her care. They were again removed from her home and placed under the stewardship of DYFS because both Rebecca and Richard were found again to have failed to provide adequate housing and medical care and demonstrated a continued inability to adequately care for their children. Later, the Family Part terminated the neglect and abuse proceedings when DYFS instead instituted a complaint for guardianship relating to Tia and Kia (who was born in October 2002).

In September 2003, Rebecca gave birth prematurely to Ayana using an alias in an effort to hide the birth from DYFS. In August 2004, after months of continuous efforts to reunite the family, the court conditionally returned Rebecca's children to defendants' care. DYFS again provided the parents with supervision and a wealth of services to help with economic, psychological, and parenting issues. Nevertheless, additional complaints and disquieting allegations of abuse and neglect regarding the children continued to emerge.

In May 2006, DYFS stepped up another investigation based upon these continuing allegations but was unable to verify such claims. In March 2007, DYFS received information that Rebecca's child Tobe, then seven years-old, had a scratch on her cheek and was acting noticeably different at school, exhibiting an uncharacteristic "sad demeanor." During the ensuing investigation, DYFS discovered that both Rebecca and Richard had been arrested Rebecca in September 2006, and then Rebecca and Richard in February 2007 for child endangerment and possession of controlled dangerous substances (cocaine and heroin) with the intent to distribute. These arrests eventually produced indictments against Rebecca and Richard. At the time of the arrests, some of their children were present in the home, which formed the basis of the endangerment charges involving Richard, Jr., Ayana, and Wanda. After the second arrest, six children were sent to the homes of different relatives. Tobe and Damon were placed in the care of a maternal aunt; Wanda, Odell, Ayana, and Richard, Jr. were dispatched to live in the home of a paternal aunt.

DYFS conducted an investigation into the living conditions of the displaced children. Both of these placements were deemed unfit by DYFS, as the homes were overcrowded, unclean, and lacked adequate bedding for the children to sleep. Furthermore, the paternal aunt had a prior negative DYFS history, and was therefore considered unsuitable to care for the children. DYFS ultimately filed for and obtained custody of these six children on March 5, 2007, because the homes they were living in were all unsuitable. Other potential family members were also ruled out as alternatives after the Division assessed placements.

While incarcerated in the Camden County Jail on the drug and endangerment charges awaiting sentencing, Rebecca gave birth to her tenth child, Tiffani, in September 2007. Because there were no suitable relatives able to care for the newborn, DYFS obtained custody.

Rebecca entered a plea of guilty to third degree possession of a controlled dangerous substance with the intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7, and second degree endangering the welfare of a child, N.J.S.A. 2C:24-4. Pursuant to a negotiated plea agreement that enabled her to be treated on both charges as a third degree offender, Rebecca was sentenced in October 2007, to an aggregate term of four years with eighteen months of parole ineligibility. Upon her release from incarceration, she was permitted to visit with some of her children, but custody was not reestablished.

Richard, too, entered a guilty plea to third degree possession of a controlled dangerous substance with the intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7. In November 2007, Richard was sentenced to five years in prison, with two years of parole ineligibility. Richard remains incarcerated throughout this appeal. In the same month, the Family Part excused DYFS from its obligations to provide reasonable efforts for reunification of Rebecca with her remaining children, relying, in part, upon the prior termination of defendants' parental rights as to Tia and Kia.

B.

In May 2008, DYFS filed for guardianship of Ayana, Richard Jr., and Tiffani. The guardianship trial was held on November 10, 12, and December 16, 2008, in which the Division's case managers and a clinical psychologist testified. Rebecca and Richard did not testify. At its ultimate conclusion, on January 21, 2009, Judge Donaldson issued a comprehensive thirty-seven page written opinion.

Defendant Rebecca argues that during the course of the litigation and DFYS' involvement, she was never provided with adequate structure or support services needed in order to help her manage her life and get her children back under her care. DYFS contends that during this time, and for much of the whole decade of the Division's involvement with the family, a smorgasbord of services were provided to Rebecca, including psychological evaluations, parenting skills classes, and substance abuse therapy. Moreover, DYFS provided a program called Treatment Alternatives for Children at Risk (TAFCAR), which provided in-home services to Rebecca regarding maintenance of the household and instruction on how to create a safe environment for her children. Rebecca frequently was resistant to the services and often failed to cooperate in the training.

A psychological evaluation of Rebecca in July 2008 resulted in a bleak prognosis for improvement. Bonding evaluations were also conducted between each of the children and Rebecca and Richard individually. The psychologist determined that while the children interacted well with their mother, her history of neglect would do further damage to the children. Rebecca's limitations were seen to hinder her management of the children's needs, get help for herself, and make good decisions on their behalf. Richard was reportedly unable to recognize the needs of his children and they viewed him more as a playmate than as a father figure.

Bonding evaluations were conducted between Richard Jr., Tiffani, and their foster parent, producing positive results. The evaluations indicated that the children had a strong bond with the foster mother, which could create harm if they were separated. No bonding evaluation was conducted between Ayana and her current caregiver. Because she was only living in that environment for a short time prior to the guardianship trial, an evaluation would not be a reliable indicator of bond building, if any, at such an early stage. This is one of those cases in which a comparative bonding evaluation can be excused. Cf., N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (2009) (finding that there are "very few scenarios in which comparative evaluations would not be required").

Defendant Richard took issue with the fact that a bonding evaluation was never conducted between Ayana and her current foster parent, and argued that there was insufficient evidence to determine that she was doing well in her then-current home. Richard also argues that the other bonding evaluations were not conducted properly due to their artificial setting and circumstances, in a visitation room at the Camden County Jail, and that the results are therefore not reliable.

At the trial, the testimony of the DYFS representative indicated that many services were provided by the Division to Rebecca and Richard over the past decade, and explained how the defendants' home situation was volatile and unpredictable. Furthermore, DYFS presented evidence that the current foster parents of the children were willing to adopt them and give them safer, more stable home environments.

C.

The trial court took into consideration the breadth of information and documentation presented concerning this family, spanning almost ten years. Judge Donaldson examined the four prongs of N.J.S.A. 30:4C-15.1, also known as the "best interests of the child" standard, to make her determination. She held that the children's safety would be harmed if the parental relationship continued with Rebecca and Richard. Their prior unsteady lives, substance abuse, and inability to maintain anything other than squalid living situations led the court to conclude that the defendants could never eliminate such harm to the children in the future.

The court found that DYFS was relieved of its obligation to provide reasonable services to the defendants due to the prior termination of parental rights as to Tia and Kia, and that there were no alternatives to the termination of parental rights as to Ayana, Richard Jr., and Tiffani. Lastly, Judge Donaldson found that termination would do no more harm than good and that immediate placement in stable homes would help the children developmentally and emotionally. The lack of a bonding evaluation with the current caregiver of Ayana was not seen as a reason to impede or delay the termination of parental rights.

II.

Parents have a fundamental liberty interest in the care of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). "Few forms of state action are both so severe and so irreversible" as termination of parental rights. Santosky v. Kramer, supra, 455 U.S. at 759, 102 S. Ct. at 1398, 71 L. Ed. 2d at 610. Because termination completely severs the relationship between the biological parent and child, the Division has the burden to prove, by clear and convincing evidence, that it has satisfied all four prongs of the statutory test. In re Guardianship of J.C., 129 N.J. 1, 9 (1992).

However, the right of parents to raise or manage the care of their children is not absolute. The State also has an interest in protecting the welfare of children through its parens patriae responsibility. Id. at 10. Notwithstanding our recognition that parental rights are of constitutional dimension, In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993), intervention by way of terminating parental rights may be necessary to protect children, as here. Because the Family Part's judgment to that effect is supported by clear and convincing evidence, we are obliged to affirm. In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).

A trial court's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Thus, we must defer to the trial court's findings of fact so long as "they are supported by substantial, credible evidence." In re Adoption of a Child by P.S., 315 N.J. Super. 91, 107 (App. Div. 1998) (citing Rova Farms, supra, 65 N.J. at 484). However, the trial court's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378 (1995).

Termination of parental rights is governed by N.J.S.A. 30:4C-15.1(a). The legislation sets out a four-pronged test that must be met by clear and convincing evidence in order to terminate parental rights:

(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)(1)-(4).]

The statute demands that the best interests of the child govern whether termination is proper. The test is demanding, but not rigid. Instead, each case is "extremely fact sensitive" and the four prongs interact with one another. K.H.O., supra, 161 N.J. at 348 (quoting L.A.S., supra, 134 N.J. at 139).

This analysis requires "particularized evidence" that is "clear and convincing" for all of the prongs. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). Presumptions have no place in this judicial determination of parental fitness. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007); K.H.O., supra, 161 N.J. at 347. The threat of harm facing a child must be based on clear and convincing evidence, not speculation. G.L., supra, 191 N.J. at 608. Moreover, "all doubts must be resolved against termination of parental rights." K.H.O., supra, 161 N.J. at 347.

Rebecca and Richard appeal separately, and each is entitled to have a separate determination of whether DYFS established its case by clear and convincing evidence. Parental rights are individual in nature; therefore, whether a person is fit to parent must be evaluated on an individual basis. M.M., supra, 189 N.J. at 288; N.J. Div. of Youth and Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005). In other words, one person's parental rights may not be terminated simply because the other parent is found unfit. M.M., supra, 189 N.J. at 288. Our careful review of the record convinces us that DYFS did in fact establish the four prongs with respect to each parent by clear and convincing evidence. The Family Part's sensitive consideration of each parent's situation, although overlapping, carefully addressed the evidence presented.

Judge Donaldson attentively appraised the special circumstances of Ayana, for whom a bonding evaluation was not performed. Finding that Ayana "is a child in desperate need of stability and permanency" and after considering alternatives to termination including custody or kinship legal guardianship with an out-of-state relative, the judge found no alternative to termination of parental rights. Although Ayana displayed some connection with Rebecca, there was utterly no bonding with Richard. The court noted:

[Ayana] requires special education services to meet her needs. [Ayana] also requires psychological assistance and currently attends weekly counseling to address her emotional and behavioral issues. Additionally, [Ayana] is very emotional and oppositional at times. [Ayana's] age, health, and development reflect the harm her instability has already caused her and the importance of obtaining permanency and stability as soon as practicable.

Furthermore, although a permanent separation from her older siblings may cause Ayana harm, it "is not greater than the harm caused by continued instability."

At the beginning of the trial, Ayana had been with her current caretakers for less than one month. As such, a bonding evaluation would have been premature at that time. We conclude that this case represents one of those instances where the absence of a comparative bond was not required. N.J. Div. of Youth & Family Servs. v. A.R., supra, 405 N.J. Super. at 440. First, there is the expert opinion that Ayana is not bonded to defendants. Thus, even if there were an insufficient period of contact between Ayana and the prospective adoptive parents, the comparison to defendants would not be better. Second, we are satisfied that there is no prospect of reunification with defendants in the foreseeable future, despite the lengthy opportunity defendants had to work towards that goal.

This case shows that there will be instances where the bond between a child and his or her foster parent might not have fully developed at the time of trial due to a recent placement. Nonetheless, where as in this case, the child is not bonded to the biological parents, and where there is no prospect of reunification, it is unlikely that termination of parental rights will do more harm than good.

After considering the totality of the circumstances, and being fully aware of her overarching obligation to defend the best interests of the children, Judge Donaldson "with a heavy heart" exercised her principled authority and terminated both parents' rights as to all three children. We affirm substantially for the reasons set forth in Judge Donaldson's thorough and well-reasoned written decision.

Affirmed.

 

We choose to avoid the use of initials and to alter the names of the children and parents. Rebecca is appellant R.L.D; Richard is appellant R.N.D. Ayana is listed in the caption as A.D.; Richard, Jr. as R.D., Jr.; and Tiffani as T.I.D.

The ages of the children are as of the commencement of the guardianship trial in November 2008.

(continued)

(continued)

16

A-3255-08T4

RECORD IMPOUNDED

October 29, 2009