NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.R.W.

 
(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5677-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.R.W.,

Defendant-Appellant.

______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF H.M.W.

and S.T.W.,

Minors.

_______________________________

September 28, 2010

 

Submitted September 13, 2010 - Decided

 

Before Judges Reisner and Sabatino.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-297-05.

 

Yvonne Smith Segars, Public Defender, attorney forappellant (MilesS. Lessem, Designated Counsel, on the brief).

 

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

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors H.M.W. and S.T.W. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

Defendant J.R.W. appeals from a June 1, 2009 order terminating her parental rights to her two children, H.M.W. and S.T.W. We affirm.

I

The history of this case and the pertinent evidence were exhaustively described in Judge Katz's comprehensive written opinion issued June 1, 2009. They need not be repeated here in the same detail. As the judge outlined in his opinion, the children were born in 2003 and 2004, respectively. Primarily due to J.R.W.'s persistent substance abuse problems, which long pre-dated the older child's birth, the children have never lived with her. Instead, they lived with her mother, M.W., for a short time, followed by placements with separate foster families, with whom they have each now lived for several years. Unrebutted expert testimony established that, for both children, the foster parents have become their psychological parents. The children have a parent-child bond with their foster parents and would each suffer significant and enduring harm if separated from them.

The foster parents have each expressed to the children's caseworker their commitment to adoption. Although it is not a legally enforceable commitment, each foster parent expressed to the caseworker a willingness to allow the children to maintain a continuing relationship with their biological family after adoption. They have taken concrete steps to support that relationship by, for example, inviting the biological family members to H.M.W.'s kindergarten graduation.1 They also expressed a commitment to fostering contact between the children. At the guardianship trial, the Division of Youth and Family Services (DYFS) offered to have the foster parents testify to all of these facts, but J.R.W.'s counsel stipulated to the truth of the agency's representations without the need for the foster parents' testimony.

While the children were in foster care, J.R.W. failed to address her substance abuse issues and was not able to secure either stable employment or housing. Expert testimony established that she also has serious psychological problems that would interfere with her ability to care for these children. Indeed, on this appeal, J.R.W. does not contest the trial court's determination that she is incapable of parenting her children. Rather, J.R.W.'s appellate arguments focus on her contention that her mother M.W. should have custody of the children. Hence, we turn to that issue.

The children were initially placed in M.W.'s home in 2004, but were removed for two reasons. First, she permitted J.R.W. to take one of the children to the hospital, although M.W. knew that due to J.R.W.'s untreated drug addiction the children were never to be left alone with her. Second, in the same time frame, the other child was examined and found to have broken ribs. Doctors later concluded that the child had fragile bones and the injuries were not the result of abuse.

In 2006, J.R.W. entered into an identified surrender of the children to her mother. However, the children were not immediately placed with M.W., due to concerns that she was developing significant memory problems, and the fact that M.W. continued to allow her son R.W., a convicted child molester, to visit her home.2 Through further investigation, DYFS also learned that while M.W. had custody of the children in 2004, she had actually allowed R.W. to live in her home. She later admitted that R.W. was living in her home until July 2007. M.W. also was unwilling to commit to excluding J.R.W. from her home, despite J.R.W.'s continuing use of illegal drugs. She told a caseworker that she could not keep her children from visiting her. In a 2007 evaluation, an examining psychologist, Dr. Andrew Brown, opined that the children had bonded with their foster parents, did not have the same bond with M.W., and should not be moved from their foster homes. Based on that evidence, DYFS ruled out M.W. as a guardian for the children, and Judge Floria vacated the identified surrender.

Prior to the guardianship trial, DYFS and the Law Guardian obtained additional psychological evaluations of M.W. and new bonding evaluations of the children with M.W. and with the foster parents. The 2008 bonding evaluation determined, once again, that the children were bonded with their foster parents. According to the State's expert psychologist, Dr. Mark Singer, as a grandmother, M.W. was an important figure in the children's lives, but she was not a parental figure. He opined that the children could emotionally survive a separation from M.W. but not a separation from their foster parents.

Dr. Singer also opined, based on psychological testing, that M.W., then age sixty-six, had some memory problems which could hinder her ability to care for the children. More significantly, he opined that she would be unable to protect the children from her son R.W. Dr. Singer opined that M.W. has a rigid personality, and she does not believe that her son is a child molester. She also sees herself as a "caretaker" and has a strong desire to please people. Dr. Singer opined that, although she might understand intellectually that she had a legal obligation to keep R.W. away from the children, she would not be able to turn him away if he wanted to spend time at her home or needed a place to live. He opined that M.W. would also be unable to keep J.R.W. from visiting her home despite J.R.W.'s ongoing drug problems. Dr. Donna LoBiondo, a psychologist who testified on behalf of the Law Guardian, reached the same conclusions as Dr. Singer on the issues of the children's bond with their foster parents and M.W.'s inability to safely or effectively act as their parent.

In his thorough opinion, the judge addressed at length the four prongs of the best interests test as set forth in N.J.S.A. 30:4C-15.1(a). He found Dr. Singer, Dr. LoBiondo and the DYFS case worker to be entirely credible witnesses. He concluded that due to her persistent drug problems and psychological problems, J.R.W. was not a fit parent.

In addressing prong three, concerning alternatives to termination of parental rights, the judge found that DYFS "made numerous attempts throughout the pendency of this matter to prepare the children to be placed with [M.W.]" However, for reasons he explained in detail, Judge Katz did not find M.W. to be a credible witness and found that while "she loves her grandchildren and is firmly committed to them" she was not capable of acting as their parent. The judge gave particular weight to the expert testimony on that issue:

Dr. Singer concluded in his report that [M.W] "lacks the resources and insight needed in order to structure an appropriate home environment, specifically with respect to issues related to her son [R.W.]." He testified consistently with his report, and his expert opinions are un-rebutted. Dr. LoBiondo concluded in her report that [M.W.'s] "ability to maintain the boundaries she claims to now have set with regard to her son and daughter living in her home is a potential concern, since [she] lives a very family centered life and has violated such boundaries in the past, placing her grandsons at risk." At trial, Dr. LoBiondo . . . further stated that [M.W.'s] judgment is less than optimal and that she does not have a clear view of what the children need. Dr. LoBiondo's expert opinions were also un-rebutted.

 

[internal citations to trial exhibits omitted]

 

In addressing prong four, whether termination of parental rights will do more harm than good, N.J.S.A. 30:4C-15.1(a)(4), the judge found that the children had no bond with J.R.W., that they had bonded with the foster parents, and that severing that bond would cause the children severe and enduring harm. However, because the children had lived with M.W. for a period of time and had a relationship with her, the judge also considered the impact on the children of losing their relationship with M.W. On that point, the judge accepted the experts' testimony:

Dr. Singer concluded that [M.W.] is a significant figure in the children's life, and they would suffer harm if that relationship is terminated. However, the foster parents will be able to mitigate that harm. On the other hand. [M.W.] could not meet the children's needs if the bonds with the foster parents were terminated. Dr. LoBiondo also had concerns regarding [M.W.s'] ability to parent the boys due to various factors including her age, poor judgment, inability to maintain boundaries and that the children do not view her as a psychological parent.

 

The judge therefore concluded that termination of J.R.W.'s parental rights would not do more harm than good. And, finally, he concluded that "while the Court will not force or require continuing contact between the children and [M.W.] or their natural mother, both foster mothers have indicated a desire to continue contact and said contact will be left to the discretion of the respective foster mothers."

II

 

On this appeal, we must defer to the trial court's factual determinations "unless 'they are so wholly insupportable as to result in a denial of justice,'" and those findings "should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" 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) (citations omitted)). Special deference is owed to the factfinding of family part judges in light of their expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super.81, 89 (App. Div. 2006), certif. denied, 190 N.J.257 (2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995)). Judged by those standards, we find no basis to disturb Judge Katz's thoughtful decision in this case, and we affirm substantially for the reasons stated in his written opinion. We add the following comments.

Guardianship actions implicate the parents' constitutional rights, as recognized under both the federal and New Jersey constitutions. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008); see also Moriarty v. Bradt, 177 N.J. 84, 101 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). However, "[t]hat fundamental parental right . . . is not without limitation. The State has a basic responsibility, as parens patriae to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102.

In striking a balance between the parents' constitutional rights and the children's fundamental needs, courts engage in the four-part guardianship test articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) 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.

 

See In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999) (discussing codification). In their application, the four factors above "are not [discrete] and separate but represent an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 285 (App. Div.), certif. denied, 196 N.J. 347 (2008).

On this appeal, J.W. contends that her mother M.W. should have been permitted to adopt the children or should have been allowed kinship legal guardianship (KLG). With no citation to any supporting case law, J.R.W. argues that the State was obligated to prove the four prongs of the best interests standard with respect to M.W. as well as with regard to J.R.W. These contentions are without merit and warrant only the following brief discussion. See R. 2:11-3(e)(1)(E).

In addition to protecting the children, the best interests test protects the parents' constitutional rights. See In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999); A.W., supra, 103 N.J. at 599-600. However, as the children's grandmother, M.W. does not have the same constitutionally protected parental rights to the children that J.R.W. has. See Moriarty, supra, 177 N.J. at 116-17 (2003). Moreover, while J.R.W. initially made an identified surrender of the children to M.W., the court vacated the identified surrender in 2007, for reasons amply supported by the record, including M.W.'s having permitted a convicted child molester to share her home while she had custody of the children. We find no support for J.R.W.'s implicit contention that DYFS must separately satisfy the four-prong best interests test with respect to any relative with whom the children might be placed. Given the facts of this case, Judge Katz correctly analyzed the grandmother's possible role as the children's guardian under the third and fourth prongs of the best interests test.

To summarize, there is overwhelming and undisputed evidence that J.R.W. is an unfit parent whose parental rights should be terminated. Further, deferring to the trial judge's factual findings and credibility determinations, it is clear that DYFS made a reasonable attempt to place the children with an appropriate relative. Unfortunately that relative is unable to act as the children's parent, albeit she is loving and well intentioned toward them. Finally, although not legally required to do so, the foster parents are committed to providing these children with what would appear to be the best possible outcome for them, by allowing them to maintain contact with their biological family and with each other.

Affirmed.

 

1 The caseworker also testified that during her home visits, she was helping one of the children to prepare a "life book" that would include his biological family.

2 R.W. is a co-owner of the house in which M.W. lives and was providing her with financial support.