NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. T.J. and B.T.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5678-08T1

A-5692-08T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.J. and B.T.C.,

Defendants-Appellants.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.L.J.,

Minor.

_________________________________

September 28, 2010

Submitted September 20, 2010 - Decided

Before Judges Reisner and Sabatino.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-34-08.

Yvonne Smith Segars, Public Defender, attorney for appellants (Dianne Glenn and Beryl Foster-Andres, Designated Counsels, of counsel and on the briefs).

Paula T. Dow, Attorney General, attorney for respondent(Lewis A.Scheindlin, Assistant Attorney General, of counsel; Lisa Godfrey, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for Minor A.L.J. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In these consolidated appeals, defendants T.J. (mother) and B.T.C. (father) appeal from a June 2, 2009 order terminating their parental rights to their child, A.L.J. We affirm, substantially for the reasons stated by Judge Fineman in his comprehensive written opinion issued June 2, 2009.

I

The history of this case and the pertinent facts are exhaustively detailed in Judge Fineman s opinion.1 We summarize them more briefly here. The mother had a prior history with the Division of Youth and Family Services (DYFS or Division) concerning her first child, L.J. She tested positive for cocaine when her second child, A.L.J., was born on November 18, 2006, leading the Division to remove the child from her custody and place the child with her maternal grandmother. The Division provided services to help the mother with her severe psychological and drug problems, but she did not cooperate with the programs that were offered to her.

Although A.L.J. was initially placed with the grandmother, the child was moved to foster care in January 2007, after the grandmother was unwilling or unable to comply with the conditions of the placement. On this record, there is no meaningful basis to dispute that T.J. is incapable of acting as a parent to A.L.J. and has no parent-child bond with her. On the other hand, A.L.J. has bonded with her foster parents, who have expressed a commitment to adopting her. She would suffer severe and lasting emotional harm if she were separated from the foster parents.

The father, B.T.C., is incarcerated and unable to care for the child. He was violent and abusive to the mother during their brief relationship. The child has visited the father once in her life, and has no bond or other relationship with him. At the time of the guardianship trial, the father's sister, K.C., was not immediately available to take custody of the child. However, she expressed a desire to take custody of A.L.J. so that the child would not grow up thinking that her family did not love her. Without questioning K.C. s concern for the child, the judge did not find her to be an entirely credible witness. He did not find placement with her to be in the child s best interests, particularly in light of A.L.J. s strong bond to her foster family.

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 so long as 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)). We owe special deference 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 and 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)).

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 and 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 and 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 and Family Servs. v. M.W., 398 N.J. Super. 266, 285 (App. Div.), certif. denied, 196 N.J. 347 (2008).

On this appeal, B.T.C. contends that DYFS should have placed the child with his sister K.C. Based on the record, this argument is without sufficient merit to warrant discussion, beyond the following comments. R. 2:11-3(e)(1)(E). At the time of the trial, K.C.'s daughter and her four children were living with K.C. and she had no room in her home for another child. More significantly, we defer to the judge's conclusion that it would not be in the child's best interests to remove her from a foster family with whom she has bonded and place her with an aunt she has never met.

In her appeal T.J. contends that DYFS did not provide her with an appropriate program to address both her mental illness and her drug problems. However, consistent with the trial judge s factual findings, the record reveals that the Division made heroic efforts to find her a program. The Division s efforts were stymied, primarily due to T.J.'s failure to cooperate with any of the programs DYFS provided.

In summary, we find that the Division proved by clear and convincing evidence that termination of both parents parental rights was in A.L.J. s best interests. N.J.S.A. 30:4C-15.1a. Judge Fineman s decision is amply supported by substantial credible evidence, R. 2:11-3(e)(1)(A), and we affirm.

Affirmed.

1 T.J. did not appear for the trial, although she had notice and was represented by counsel who was present throughout the proceedings. Under the circumstances, the judge properly conducted a plenary trial in her absence and, based on the evidence, made thorough findings of fact and conclusions of law.