NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.L.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0410-09T40410-09T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.L.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF J.D.L.,

A Minor.

____________________________________

 

Submitted: May 12, 2010 - Decided:

Before Judges Axelrad, Fisher and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Hudson County, Docket No. FG-09-110-08D.

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

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jessica Steinglass, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor J.D.L. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

J.L. appeals from an August 7, 2009 final judgment of the Family Part terminating his parental rights to his then four-year-old son, J.D.L., and awarding guardianship of the child to the Division of Youth and Family Services (DYFS) following a contested trial. On appeal, J.L. contends DYFS failed to prove by clear and convincing evidence the requisite statutory prongs to establish that the best interests of his son required severance of his parental ties. We note that the Law Guardian has consistently supported termination of J.L.'s parental rights.

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 and modified in part, 179 N.J. 264 (2004). We affirm substantially for the reasons set forth by Judge Lourdes Santiago in her comprehensive written decision appended to the judgment of guardianship. R. 2:11-3(e)(1)(A). We add the following comments.

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). We also have a limited scope of review of the Family Part's factual findings. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). In reviewing the factual findings and conclusions of a trial court, "we are obliged to accord deference to the trial court's credibility determinations and its '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." N.J. 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 testimony and the court's fact-findings based thereon, as it is in a better position to evaluate the witness' 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, 22 (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, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding" and the conclusions which flow logically therefrom. Cesare, supra, 154 N.J. at 413; M.M., supra, 189 N.J. at 279. 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 child require termination of J.L.'s parental rights.

The applicable principles are well settled. "Parents have a constitutionally-protected, fundamental liberty interest in raising their biological children . . . ." J.C., supra, 129 N.J. at 9 (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. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986) (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (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. A.W., supra, 103 N.J. at 599.

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. "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid. The burden rests on the State "to demonstrate by clear and convincing evidence" that the natural parent has placed the child at serious risk, has not cured the problem, and that the likelihood of future harm to the child is sufficiently great as to require severance of the parental ties. J.C., supra, 129 N.J. at 10.

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; In re Guardianship of Jordan, 336 N.J. Super. 270, 274 (App. Div. 2001). 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. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004); 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 child. N.J. Div. of Youth & Family Servs. v. C.M., ___ N.J. ___ (2010) (slip op. at 28-29) (citations omitted). "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." K.H.O., supra, 161 N.J. at 348 (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

II.

On appeal, J.L. asserts that the trial court erred in: (1) applying an improper "better interests" standard based on its belief that J.D.L. would be better off adopted by his current foster caregivers than being reunited with J.L.; (2) finding his incarceration constituted clear and convincing evidence of "harm" under the first prong and "parental unfitness" under the second prong; (3) finding DYFS satisfied its "reasonable efforts" obligation and failing to consider kinship legal guardianship with the maternal grandmother as an alternative to termination of parental rights; and (4) reaching a conclusion on the fourth prong in the absence of a bonding evaluation between him and J.D.L. and between J.D.L. and his siblings.

We are not persuaded by any of these arguments. Our examination of the record discloses the trial judge applied the appropriate standard, and all four prongs of the statutory test as they pertain to J.L. have been met by clear and convincing evidence. DYFS has been actively involved with the family since February 2002, when it ascertained that four of the children, the oldest being six years old, were left alone in a dirty home with the outside doors fastened with wires, rendering the children "captive." J.D.L. was born on August l6, 2005. Throughout 2005 and 2006, DYFS received numerous referrals regarding lack of parental supervision, medical and educational neglect and unsanitary living conditions.

J.L. has been in and out of prison the entire time the agency has been involved with the family. On October l8, 2002, while J.L. was incarcerated on drug charges, DYFS temporarily removed the four children from S.R.-L.'s care. J.L. was released from prison on October 6, 2004. However, J.L. then committed another drug offense when J.D.L. was about four months old, and has been incarcerated for most of J.D.L.'s life. Specifically, J.L. was incarcerated for five days in December 2005, from January 8, 2006 through June 22, 2006, and pursuant to a guilty plea to third-degree possession of CDS, he was then sentenced to a five-year custodial term. J.L. represented that his anticipated release date was June 2010, but it could extend to January 20ll. J.D.L. has been living with his foster mother, who wishes to adopt him, since July 2006.

J.L.'s lengthy incarceration has, without doubt, adversely affected J.D.L.'s well being. Moreover, J.L.'s choice to repeatedly engage in criminal activity has clearly caused harm to his son, who was then subjected to parenting solely by S.R.-L., who stipulated that she had caused harm to the infant by virtue of her actions. During the evaluations, S.R.-L told the psychiatrist and psychologists referred by DYFS, that J.L. was unable to take care of the children as a result of his repeated, long periods of incarcerations, and that the family suffered financially as a result. Due to J.L.'s imprisonment from the time J.D.L. was four months old, he has not been able to nurture his son or provide for his son's daily needs. J.L. voluntarily abdicated his duty to care for his child, first to his wife, who he knew was incapable of carrying out the task, and ultimately to the State.

Dr. Frank Dyer, DYFS' testifying psychologist who conducted a psychological evaluation of J.L. on July 25, 2008, at Riverfront State Prison, stated that J.L. suffered from a personality disorder with narcissistic and antisocial features. This disorder reflected a chronic, maladaptive style with an excessive focus on self and an inability to recognize the needs of others. The antisocial component implicated J.L.'s history of criminal behavior, which reflected an enthusiasm for earning large sums of money illegally instead of working at conventional jobs. The psychologist opined that J.L.'s personality disorder was unlikely to change in the absence of "massive intervention" and a "very high degree of motivation on the part of J.L." Dr. Dyer acknowledged that J.L. had participated in several activities and programs while in prison which "may have had some positive effects on him," but found no basis to conclude the programs had brought J.L. "to the point of adequate parenting capacity where we could place confidence in his being able to provide a suitable, safe, nurturing, adequately structured environment" for J.D.L.

By choosing the lure of easy money through drug distribution, and re-offending shortly after J.D.L.'s birth, J.L. voluntarily absented himself from his son's life during his formative years. We agree with the court that it is "unfortunate" that Dr. Dyer did not conduct a bonding evaluation due to J.L.'s incarceration, but we are satisfied with Dr. Dyer's explanation that if during J.L.'s psychological evaluation he had observed anything to suggest there was a possibility of an attachment, he would have pursued the matter further. The record is clear that J.D.L. never bonded with his father and his foster mother was his psychological parent. There was ample expert and lay testimony of a profound attachment between J.D.L. and his foster mother, with whom he has lived since he was about one year old. Dr. Dyer opined that if removed, J.D.L. would suffer a "catastrophic loss" with both short-term and long-term effects, which he set forth in detail.

We are convinced, as was Judge Santiago, that although J.L. may love his son, he is unable to provide a safe and permanent home that the child so desperately needs. 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 (l999), where there is substantial credible evidence in the record to support termination of parental rights, there is no reason to delay permanent resolution. A child cannot afford to wait until such time as his parent might be able to provide a safe and secure environment for him. J.D.L. has been in foster care since July 2006. He is thriving, and the family wishes to adopt him. In contrast, he has no relationship with his father, who absented himself when J.D.L. was four months old, potentially will not be released until January 20ll, and has not presented any viable plan to care for his son. The trial court properly determined that termination of J.L.'s parental rights will not do more harm than good as it will allow J.D.L. to be adopted by his foster mother and provide him with the permanency and stability he needs.

We further note there is no merit to the argument J.L. raises for the first time on appeal that DYFS failed to consider kinship legal guardianship with J.D.L.'s maternal grandmother. On May 6, 2009, prior to trial, the maternal grandmother withdrew her resource family application and rescinded her offer to care for J.D.L.

 
Affirmed.

J.L. is married to S.R.-L., the child's mother, who executed a voluntary identified surrender of her parental rights on July 24, 2009. J.L. and S.R.-L. are the parents of four older children who are not placed with them but are not the subject of this litigation.

J.L.'s prison term commenced on August 26, 200l.

(continued)

(continued)

12

A-0410-09T4

RECORD IMPOUNDED

June 15, 2010