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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5923-08T45923-08T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.H.,

Defendant-Appellant,

and

J.J.,

Defendant.

________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF J.J.H., a minor.

_________________________________

 

Submitted April 13, 2010 - Decided

Before Judges Fuentes, Gilroy and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-55-09.

Yvonne Smith Segars, Public Defender, attorney for appellant (Beryl Foster-Andres, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Diana C. Applegate, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Damen J. Thiel, Designated Counsel, on the brief).

PER CURIAM

R.H., the biological mother of J.J.H., a boy born September 2005, appeals from the June 18, 2009 order that terminated her parental rights to her son. We affirm.

The New Jersey Division of Youth and Family Services (DYFS or Division) first became involved with R.H. in 1995 after her first child tested positive for cocaine and methadone at birth. On July 24, 2006, DYFS executed an emergency removal of J.J.H. from R.H.'s custody after DYFS determined that R.H. had left the child home unattended, and R.H. had recently tested positive for drugs. On July 26, 2006, the court entered an order granting DYFS custody and care of the child.

Initially, the Division's plan was for reunification of R.H. with her son. However, because R.H. continued to use drugs, was arrested and incarcerated, the court entered an order on June 25, 2008, approving the Division's permanency plan for termination of parental rights followed by adoption. On August 15, 2008, DYFS filed a guardianship complaint.

The case was tried to the court on June 8, and June 18, 2009. Testifying on behalf of DYFS were Tracy Calderon, a caseworker in DYFS's permanency unit; Marcia McCalla, a family service specialist in the adoption unit; and Dr. Cameron Wells, a psychologist. Although defendant testified on her behalf, she did not call any witnesses. At the conclusion of trial, the court rendered an oral decision terminating R.H.'s parental rights.

On appeal, R.H. argues:

POINT I.

THE COURT ERRED IN TERMINATING R.H.'S PARENTAL RIIGHTS TO [J.J.H.] AS THE DIVISION FAILED TO PROVE EACH OF THE FOUR PRONGS OF THE BEST INTEREST[S] TEST.

A. THE DIVISION HAS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT [J.J.H.'S] SAFETY, HEALTH OR DEVELOPMENT HAS BEEN HARMED BY HIS RELATIONSHIP WITH R.H.

B. THE DIVISION HAS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT R.H. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HER CHILD.

C. THE DIVISION HAS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT HAS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP R.H. CORRECT THE CIRCUMSTANCES WHICH LED TO [J.J.H.'s] REMOVAL.

D. THE DIVISION HAS FAILED TO PROVE THAT THE TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

Contrary to appellant, the Law Guardian supports the decision below.

Termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Such actions require proof by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. L.C., 346 N.J. Super. 435, 439 (App. Div. 2002). Termination actions brought under N.J.S.A. 30:4C-15.1a are decided under a four-part "best interests of the child" standard, first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-611 (1986) and now codified in N.J.S.A. 30:4C-15.1a. Under that standard, parental rights may be terminated only when:

(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 [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.

[N.J.S.A. 30:4C-15.1a.]

The four prongs of the best interests test "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005). The considerations are fact sensitive. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007).

Our review of the trial judge's fact-finding is limited. Id. at 278; Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. Such deference "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Moreover, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth and Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (quoting Cesare, supra, 154 N.J. at 413). 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." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We have considered appellant's arguments in light of the record and applicable law. None of the arguments are of sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(E). The judgment of the trial court terminating appellant's parental rights is supported by sufficient, credible evidence in the record. R. 2:11-3(e)(1)(A). We affirm substantially for the reasons expressed by the trial court in its oral opinion of June 18, 2009.

 
Affirmed.

R.H. is also the mother of three other children born February 1993, November 1995, and November 1999. These three children have been removed from R.H.'s custody because of R.H.'s involvement with drugs, and are currently in the care and custody of other relatives. None of the three children are the subject of this appeal.

On April 2, 2009, the trial court entered default against J.J., the child's biological father. However, the appendix does not contain a copy of an order terminating J.J.'s parental rights. The absence of such an order does not affect this appeal. However, because we cannot discern whether the court entered an order terminating J.J.'s parental rights and the parties did not include a copy of the order in the appendix, or if the court intentionally did not enter the order for reasons not expressed in the record, or whether the court intended to enter the order but inadvertently failed to do so, we direct that the trial court review its file and take appropriate action as necessary.

(continued)

(continued)

7

A-5923-08T4

RECORD IMPOUNDED

April 28, 2010