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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5830-07T45830-07T4

A-6329-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.J. and K.B.,

Defendants-Appellants.

IN THE MATTER OF THE GUARDIANSHIP

OF Ku.B., Ka.B., Mi.B., & Ma.B.,

Minors.

___________________________________

 

Submitted: October 15, 2009 - Decided:

Before Judges Axelrad and Fisher.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-27-07.

Yvonne Smith Segars, Public Defender, attorney for appellant M.J. (Ruth Harrigan, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant K.B. (Carol M. Willner, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lauren F. Carlton, Assistant Attorney General, of counsel; Geraldine O. Livengood, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors Ku.B., Ka.B., Mi.B., and Ma.B. (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

M.J., the mother, and K.B., the father, appeal from the Family Part orders of June 16, 2008 and June 25, 2008, respectively, terminating their parental rights to their then seven-year-old daughter, Ku.B., five-and-a-half-year-old daughter, Ka.B., four-and-a-half-year-old son, Mi.B., and two-and-a-half-year-old son Ma.B., and awarding guardianship of the children to the Division of Youth and Family Services (DYFS) following a contested hearing.

On appeal, both parents contend that DYFS failed to prove by clear and convincing evidence the requisite statutory prongs to establish that the best interests of their children required severance of their parental ties. The Law Guardian supports termination of both parents' rights to all four children. After considering the record and briefs in light of the applicable law, we are satisfied the trial judge's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part, and remanded, 179 N.J. 264 (2004).

M.J. and K.B. met in 2000 and began living together in 2002. The couple separated in 2003, and the record is unclear as to when they shared a residence thereafter. M.J. and K.B. married on January 27, 2007.

DYFS first became involved with M.J. on June 6, 2001, when it received a referral that she tested positive for cocaine after delivering Ku.B. DYFS referred M.J. to an out-patient program, which she failed to complete. On November 14, 2002, DYFS received another referral that M.J. had delivered a child, Ka.B., and both mother and child tested positive for cocaine. It appears from the record the parents shared joint legal custody of the children, with K.B. having physical custody, and for a period of time the children lived with their paternal grandmother, R.T.

M.J. apparently disregarded the suggestion of a DYFS case worker in January 2003 that she be assessed and treated for drug use, because when she gave birth to Mi.K. on December 29, 2003, both of them tested positive for cocaine. She then agreed to cooperate with DYFS' plan for her to enter a drug treatment program with K.B. assuming responsibility for the children with the assistance of his mother while M.J. attended treatment. However, according to Doreen Kane, the DYFS caseworker supervisor, M.J. failed to complete any of the programs at that time.

On February 19, 2004, R.T. complained to Kane that despite the children being in K.B.'s physical custody, they spent the majority of their time at her house and she was frustrated with K.B.'s lack of financial assistance and care. In response to R.T.'s complaints, DYFS tried to contact K.B. in order to assess the situation but he had moved and had not updated his contact information. As a result, DYFS was not able to contact him from February 2004 to May 2004, during which time the children lived with their paternal grandmother.

In March 2004, M.J. completed a twenty-eight day in-patient program but, despite DYFS' diligent efforts, she missed four appointments and did not attend the recommended out-patient treatment program. Because of M.J.'s non-compliance, DYFS had strong concerns that she was using drugs and feared for the safety of the children. On June 24, 2004, DYFS filed a verified complaint against both parents alleging abuse and neglect of the three children. Pursuant to an August 9, 2004 order, the care and supervision of the children was transferred to DYFS. The order further required that K.B. complete a psychological evaluation, which he did, and M.J. complete a drug treatment program, which she did not. M.J. admitted she continued to use cocaine and, in fact, her drug screen came back positive for cocaine on August 11, 2004. As a result, DYFS determined that M.J. was not to be left alone with the children. Kane testified that when she discussed this with K.B. on August 12, 2004, he was surprised that M.J. was using drugs.

An order was entered on October 6, 2004, awarding K.B. legal and physical custody of the children and barring M.J. from K.B.'s residence and from any contact with the children until she completed an in-patient drug treatment program. Periodic visits were made to inspect K.B.'s home. On one occasion in January 2005, the caseworker met M.J. there as she was exiting the residence. M.J. claimed she was not living there but would stop by on occasion to drop off food and clothing.

On February 14, 2005, the abuse and neglect case was dismissed and legal custody of the children was returned to K.B. with a restraint against unsupervised contact by M.J. due to her failure to complete a drug treatment program. In early August R.T. complained that her son had left the children with her and had failed to pick them up in the evening. Later in the month she informed the caseworker that the children stayed with her "24/7," that K.B. was not caring for the children who were behind on their immunizations and had not been scheduled for medical appointments, and that K.B. frequently allowed M.J. to stay with him and the children. At that time, R.T. was also caring for a child of K.B.'s from a previous relationship.

DYFS was then informed that M.J. had given birth to another child, Ma.B., on September 2, 2005, with both of them testing positive for cocaine. Therefore, on September 9, 2005, the agency filed a new abuse and neglect complaint on behalf of all four children. The court ruled that because K.B. had defied a court order and allowed M.J. to have contact with the children, custody of all four children would be transferred to DYFS. The three older children remained with their paternal grandmother, while the youngest remained in foster care, where he had been placed immediately after his birth. Ma.B. has never lived with his biological parents.

According to the DYFS caseworker Rashon Shelborne, M.J. then entered the Sunrise House Drug Treatment Program, which she completed on December 5, 2005. However, M.J. did not participate in the Options or Challenge out-patient programs because she admitted she "wasn't ready for recovery."

On May 22, 2006, DYFS filed an emergency removal application for the three oldest children based on a concern about the children's safety while in their father's temporary care during their paternal grandmother's vacation, specifically the substandard conditions of his apartment and the presence of M.J. The children were placed in foster care until they were transferred to the home of their maternal aunt and uncle, B.J. and D.J., in Pennsylvania on November 30, 2006. Ma.B. had been placed in that same home on June 21, 2006.

Although M.J. and K.B. were given bus cards, they often did not take advantage of scheduled visits either at D.J. and B.J.'s home or at the DYFS office, missing a total of fourteen scheduled visits with their children. However, because M.J. began taking steps to end her drug addiction by completing another Sunrise House program and attending the Options aftercare program, the parents got married and completed parenting classes, and they began regularly visiting their children, DYFS began preparing for the reunification of the children with their parents in November of 2007.

When M.J.'s drug test came back positive for cocaine on January 2, 2008, however, DYFS promptly filed a guardianship complaint to terminate the parental rights of both parents as to all four children. According to Tasha Westbrook, a DYFS adoption specialist, she was also concerned that when she informed K.B. of M.J.'s positive drug test, he responded that he "didn't understand what drugs were and he wanted someone to explain it to him, because his understanding of drugs was if you have a headache you take an aspirin."

The trial took place over five days from March 2008 through May 2008. DYFS presented the testimony of its caseworkers Shelborne, Kane, and Westbrook; Dr. James Battaglia, a psychologist who evaluated both parents and prepared bonding evaluations of both the parents and foster parents with the children; and B.J., the paternal uncle who served as a foster parent with his wife of all the children and expressed a desire to adopt them. K.B. presented the testimony of Dr. Lydia Abrams, a psychologist who conducted an evaluation and a bonding evaluation of him with the children. M.J. testified on her own behalf. The Law Guardian supported the termination of parental rights of both parties.

Having observed the demeanor and considered the testimony of the lay and expert witnesses, examined the exhibits entered into evidence, and heard arguments by counsel, Judge Sabbath concluded that all four children's best interests required severance of M.J. and K.B.'s parental ties. In his oral decision on the record on June 16, 2008 as to M.B. and written decision of June 26, 2008 as to K.B., the judge made findings of fact and credibility assessments, noted the applicable law, and found DYFS had established by clear and convincing evidence the four-prong test for termination of parental rights as set forth in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-10 (1986), and as codified in N.J.S.A. 30:4C-15.1.

I.

We begin by noting some basic principles. The scope of our review of a trial court's decision to terminate parental rights is limited. In Re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); see also, In Re Guardianship of Jordan, 336 N.J. Super. 270, 273 (App. Div. 2001). We also have a limited scope of review of the Family Part's factual findings. In reviewing the factual findings and conclusions of a trial court, we are obliged to accord deference to the trial judge's credibility determinations and the judge's "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. A.R.G., supra, 361 N.J. Super. at 78 (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "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." New Jersey 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)). We rely upon the trial court's acceptance of the credibility of the expert's testimony and the court's fact-findings based thereon, as it is in a better position to evaluate the witness's credibility, qualifications, and the weight to be accorded to the expert's testimony. Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 19 (1992).

We are not to disturb the factual findings and legal conclusions of the trial judge unless 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) (citation omitted). Additionally, because of the family court's special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding and the conclusions which flow logically from those findings of fact. Cesare, supra, 154 N.J. at 412-13; Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Reversal is required only in those circumstances in which the trial court's findings were "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (citations omitted). Applying this standard, we discern ample evidence in the record supporting the judge's conclusion that the best interests of the children require termination of M.J. and K.B.'s parental rights.

The applicable principles are well settled. "Parents have a constitutionally protected, fundamental liberty interest in raising their biological children." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 382 (App. Div. l998) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982)). "The Federal and State Constitutions protect the inviolability of the family unit." W.P. & M.P., supra, 308 N.J. Super. at 382 (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972)). However, government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State, as parens patriae, may sever the parent-child relationship to protect the child from serious physical and emotional injury. W.P. & M.P., supra, 308 N.J. Super. at 382.

When the child's biological parent resists termination of parental rights, it is the court's function to decide whether the parent can raise the child without causing harm. J.C., supra, 129 N.J. at 10. The cornerstone of our inquiry is not whether the parent is fit, but whether the parent can become fit to assume the parental role within time to meet the child's needs. Ibid. (citing A.W., supra, 103 N.J. at 607). "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." J.C., supra, 129 N.J. at 10. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that the risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of the parental ties." W.P. & M.P., supra, 308 N.J. Super. at 383 (quoting J.C., supra, 129 N.J. at 10).

The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383. The State Constitution and N.J.S.A. 30:4C-15 and 15.1a require satisfaction of the "best interests of the child" test by clear and convincing evidence before termination of parental rights can occur. See A.W., supra, 103 N.J. at 612; Jordan, supra, 336 N.J. Super. at 274. Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1a requires DFYS to prove:

(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 [formerly referred to as "foster"] parents would cause serious and enduring emotional or psychological harm to the child;

(3) The [D]ivision 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.

These standards are neither discrete nor separate. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). They overlap to provide a composite picture of what may be necessary to advance the best interests of the children. Ibid. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

II.

Our examination of the record discloses that all four prongs of the test as they pertain to both M.J. and K.B. have been met by clear and convincing evidence. The first prong involves inquiry into whether there has been "endanger[ing] of the child's health and development resulting from the parental relationship[,]" and whether there will be future harm to the child's safety, health or development if the parental relationship is not terminated. K.H.O., supra, 161 N.J. at 348. The focus of the inquiry is not necessarily on a "single or isolated harm or past harm," but rather on "the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid.

The facts, as found by the trial judge from credible evidence, reveal that M.J. has a long-standing history of drug abuse and that all four of the parties' children were born with cocaine in their systems, which constitutes an obvious harm to them. The court found that K.B. was "not credible in his professed ignorance of [M.J.'s] cocaine use in the household" and that by choosing to take no action, he failed to protect his children from that harm. In fact, K.B. expressly defied DYFS instructions and the court order that restrained M.J. from having contact with the children as a result of her failure to comply with drug treatment. K.B. further ignored his parental responsibilities when the children were in his custody by failing to take them for medical appointments and immunizations and leaving them with his mother for extended periods of time without providing financial assistance or informing her of his whereabouts.

The second prong contemplates a determination of parental unfitness. DYFS must prove that the harm is likely to continue as a direct result of the parent's unwillingness or inability to eliminate the harm that has endangered the child's health and development or the parent has failed to provide a "safe and stable home for the child" and a "delay in permanent placement" will further harm the child. K.H.O., supra, 161 N.J. at 347.

M.J. testified at trial that the last time she tested positive for cocaine was February 1, 2008. She said she was currently in a program called Highway, which is not a licensed drug rehabilitation center and does not regularly administer drug tests, but is more of a "spiritual thing." M.J. argues the court did not give proper consideration to the fact that she entered treatment immediately after her December 2007 relapse and made continual efforts to prevent another relapse rather than returning to her former pattern of behavior, which evidences a willingness to eliminate the harm to her children. She emphasizes that her participation in regular visitation, completion of parental skills classes, and prior completion of drug treatment, based upon which DYFS considered reunification, would assist her in providing a stable home for the children.

We disagree. The record supports Judge Sabbath's finding that M.J. presented insufficient evidence to show that she currently had her drug addiction under control such that she could provide a safe environment for the four young children. The court looked at M.J.'s continued abuse of cocaine during each of her pregnancies, despite intervention by DYFS and referral to numerous drug treatment programs, and her failure to follow through with an after-care out-patient drug program in December 2005 after her youngest child was placed in foster care. The court also considered M.J.'s relapse in December of 2007 when she was aware of the imminent plans for reunification and her admission of a positive test in February 2008, after institution of the guardianship proceeding.

In concluding that K.B. was also unwilling or unable to eliminate the harm facing the children and provide them with a safe and stable home, the court took note of the fact that there was no testimony or evidence presented that he took any affirmative action to address M.J.'s habit during her pregnancies or cooperate with DYFS's requirements to protect and care for the children as previously discussed. The judge credited the opinion of Dr. Battaglia that K.B. was incapable of solely parenting the children in large part because of his lack of knowledge of parenting and psychological deficiencies. In fact, K.B.'s own expert, Dr. Abrams, conceded that if she had been advised the children were born testing positive for cocaine and K.B. did not or could not acknowledge M.J.'s drug use, it would be reflective of a serious parental disability and the children would be at risk if returned to him under the circumstances.

The third prong requires DYFS to make "reasonable efforts" to assist the parents in correcting or eliminating the circumstances that caused the harm and consider alternatives to termination. N.J.S.A. 30:4C-15.1(a)(3). It is undisputed that DYFS provided M.J. with a plethora of services and referrals to drug treatment programs from 2001, intervening each time M.J. gave birth to a child who tested positive for cocaine. Although M.J. availed herself of some of the services, her participation was sporadic and reluctant, and considering her December 2007 relapse and continued drug use through at least February 2008, it is apparent that M.J. did not make a good faith effort to engage in meaningful treatment. DYFS also worked with K.B. throughout the years to assist him in retaining custody of the children but he continuously shirked his parental responsibilities and relied on his mother to be the sole caretaker of his children.

Moreover, since the maternal aunt and uncle with whom the children had been placed since 2006 expressed a clear intention to adopt the children, kinship legal guardianship is not available as an alternative to termination of parental rights. See N.J.S.A. 3B:12A-1(c) (kinship legal guardianship is an alternative to permanent legal arrangement where adoption is neither feasible nor likely); see also, N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494 (2004); N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 77 (App. Div. 2003).

Lastly, the statute's fourth prong mandates a determination as to "whether a child's interests will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). The court must inquire into the child's bond with both biological and foster parents. "[A]fter considering and balancing the two relationships," the question becomes will "the child [] suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents[?]" K.H.O., supra, 161 N.J. at 355. Answering the question "necessarily requires expert inquiry specifically directed to the strength of each relationship." Ibid. (citations omitted). This prong does not and "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid.

M.J. argues that the expert testimony was "insufficient for the court to base its findings upon," claiming the expert opinions were "too tenuous" to support the trial court's erroneous finding that termination will not do more harm than good. K.B. claims the expert testimony showed his children were attached to their natural parents.

The position of the parents is not supported by the credible evidence in the record. Neither the court nor either expert doubted that the three older children had a positive relationship with their parents, yet even K.B.'s expert said that it would be contrary to the best interests of the children for them to be placed with K.B. and M.J., rather than D.J. and B.J., who she found to be excellent parental figures. Both experts agreed that all four children were thriving in their current environment, which was the only home that Ma.B. ever knew, and it is undisputed their maternal aunt and uncle wish to adopt them. Thus, permanency and stability with D.J. and B.J. is clearly in the children's best interest.

We are convinced, as was the Family Part judge, that although M.J. and K.B. love their children, they are unable to provide a stable and permanent home that the children so desperately need. As we concluded in In re Guardianship of A.R.G., 318 N.J. Super. 323, 330 (App. Div.), certif. denied, 162 N.J. 127 (1999), where there is substantial credible evidence in the record to support termination of parental rights, there is no reason to delay permanent resolution. Children cannot afford to wait until such time as their parents might be able to provide a stable and secure environment for them. The trial court properly determined that termination of parental rights will not do more harm than good as it will permit adoption of all four children by their loving aunt and uncle with whom they have resided since 2006 in a safe and permanent placement.

 
Affirmed.

M.J.'s daughter from a previous relationship, who is not involved in this case, also resides there.

(continued)

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A-5830-07T4

RECORD IMPOUNDED

October 28, 2009