DIVISION OF YOUTH AND FAMILY SERVICES v. T.Y.B.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6021-08T46021-08T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.Y.B.,

Defendant-Appellant.

_____________________________

IN THE MATTER OF THE

GUARDIANSHIP OF C.J.B.,

a Minor.

_________________________________________________________

 

Submitted May 5, 2010 - Decided

Before Judges Stern, Graves and Newman.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County,

Docket No. FG-07-226-08.

Yvonne Smith Segars, Public Defender, attorney

for appellant T.Y.B. (William J. Sweeney,

Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for

respondent (Andrea M. Silkowitz, Assistant

Attorney General, of counsel; Diane L. Scott,

Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for C.J.B., a minor

(Christopher A. Huling, Assistant Deputy

Public Defender, on the brief).

PER CURIAM

Defendant T.Y.B., the natural mother of C.B. (fictitiously, Charles) appeals from a judgment of guardianship entered on June 26, 2009, terminating her parental rights and awarding guardianship of Charles to the New Jersey Division of Youth and Family Services (DYFS or the Division). The judgment also terminated the rights of the natural father, C.A., who defaulted. In addition to Charles, T.Y.B. gave birth to six other children, none of whom are in her care.

On appeal, T.Y.B. presents the following arguments:

POINT I

THE ELEMENTS OF N.J.S.A. 30:4C-15.1 WERE NOT PROVEN BY CLEAR AND CONVINCING EVIDENCE AND THE COURT ERRED IN ADMITTING EVIDENCE BY JUDICIAL NOTICE.

(A)

JUDICIAL NOTICE BY THE TRIAL JUDGE OF FINDINGS ON HARM IN THE TITLE 9 PROCEEDING INVOLVING DEFENDANT WAS REVERSIBLE ERROR.

(B)

A LACK OF WILLINGNESS OR ABILITY ON THE PART OF T.Y.B. TO ELIMINATE THE HARM FACING THE CHILD WAS NOT PROVEN BY CLEAR AND CONVINCING EVIDENCE.

(C)

THE LEGAL CONCLUSION THAT THE DIVISION MADE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO T.Y.B. WAS ERRONEOUS AND THE TRIAL COURT FAILED TO CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS AS REQUIRED BY STATUTE.

REASONABLE EFFORTS.

ALTERNATIVES TO TERMINATION.

KINSHIP LEGAL GUARDIANSHIP.

(D)

TERMINATION OF PARENTAL RIGHTS WILL CAUSE MORE HARM THAN GOOD.

After examining the entire record in light of these contentions, we conclude the trial court's findings are supported by clear and convincing evidence, and the court correctly applied the best interests of the child standard under N.J.S.A. 30:4C-15.1(a). Consequently, we affirm substantially for the reasons stated by Judge Katz in his oral decision on June 26, 2009, and his comprehensive and well-reasoned written decision on June 29, 2009.

We recognize, of course, that a parent's right "to raise a child and maintain a relationship with that child, without undue interference by the state, is protected by the United States and New Jersey Constitutions." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). Nevertheless, parental rights are not absolute. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children," K.H.O., supra, 161 N.J. at 347, and in appropriate cases, "if the child is at risk of serious physical or emotional harm," the State may seek to terminate parental rights. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979)).

When a child's biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise the child without causing the child further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. "The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents," and the "burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." Ibid.

While acknowledging the fundamental nature of parental rights, the Legislature has also recognized that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. That standard, initially formulated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified in N.J.S.A. 30:4C-15.1(a), requires the State to establish the following criteria by clear and convincing evidence before parental rights may be severed:

(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.

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

These four requirements "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. The considerations involved are extremely fact sensitive and require particularized evidence that addresses the specific circumstances present in each case. Ibid.

The Division's first involvement with T.Y.B. and her family occurred in 1998 when it was reported that T.Y.B. was not properly caring for one of her children. Since that time, the Division received several additional referrals regarding the welfare of T.Y.B.'s children.

On March 28, 2003, the court removed T.Y.B.'s children from her home because T.Y.B. beat one of her children, who was four years old, with a belt. Following the removal of the children, the Division arranged for psychological evaluations to be conducted by Frank J. Dyer, Ph.D., who prepared written reports on July 17, 2003, and March 31, 2004. In his second report, Dr. Dyer evaluated T.Y.B.'s parenting capacity as follows:

In regard to the question of [T.Y.B.'s] capacity to parent her children independently, I have very serious reservations. In the first place, [T.Y.B.'s] intellectual level is so extremely low that, no matter how well adjusted she may turn out to be as a result of therapy or counseling, she will still need some kind of in-home supervision, based on her intellectual level alone, in order to be entrusted with the care of any child.

Further, this subject's exposure to severe physical abuse, her history of perpetrating abuse on one of her own children, and her general instability and immaturity make her a poor candidate for positive change through any sort of counseling intervention. While her parenting skills and her emotional maturity could conceivably be enhanced to some degree through a variety of interventions, it is doubtful whether she can be brought to the point of independently exercising adequate parental judgment, restraint, and impulse control to completely eliminate the risk to a child.

On June 17, 2004, Charles was placed in the legal custody of his natural father, C.A., who resides in Florida. However, sometime in 2006, C.A. either sent Charles to New Jersey to visit a relative or he returned Charles to the care of his mother. In any event, T.Y.B. had physical custody of Charles without the knowledge or consent of the Division.

In August 2006, the Division learned that Charles was in T.Y.B.'s custody in violation of the order awarding custody to C.A. The Division contacted C.A. and asked him to take custody of his son, but he refused to do so. Subsequently, Charles was placed with a relative until T.Y.B. removed the child and went into hiding.

After the Division filed a kidnapping and a missing persons report, Charles was located on December 8, 2006, and placed in a foster home. On January 12, 2007, the court held a fact-finding hearing and found by clear and convincing evidence that T.Y.B. and C.A. had abused or neglected their son by violating court orders entered on March 10, 2004, and June 17, 2007. Those orders gave legal and physical custody of Charles to C.A. In addition, the court found that both parents had failed to enroll Charles in school.

The Division's complaint for guardianship was filed in March 2008, and the case was tried on June 15, 19, 22, and 25, 2009. In its written decision on June 29, 2009, the court noted "significant factual discrepancies" and made credibility findings regarding each of the witnesses. The court found the testimony presented by the Division's witnesses--two caseworkers, a child specific recruiter, and two psychologists--was credible and believable.

On the other hand, the court found that T.Y.B. "appeared staged" when she testified on direct examination, and her testimony was "at odds with the record in various and material ways." For example, when T.Y.B. was questioned about beating one of her children with a belt and her subsequent guilty plea to endangering the welfare of the child, she testified she only spanked the child "on his bottom with my hand." In addition, the court noted that T.Y.B. had numerous unsupervised interactions with Charles in violation of various court orders, and she "affirmatively hid her children from the Division" on at least three separate occasions. Accordingly, the court concluded that T.Y.B.'s "conduct also undermined her credibility."

In its oral decision, the court noted the testimony of Barry A. Katz, Ph.D., and Mark Singer, Ed.D., who testified as expert witnesses for the Division, was unrebutted and, to a large extent, the court relied on their findings, conclusions, and recommendations. Dr. Katz evaluated T.Y.B.'s mental status, her level of psychological functioning, and her parenting ability on January 30, 2009, and June 11, 2009. He also conducted a bonding evaluation on June 8, 2009. Dr. Katz's testimony was consistent with his written reports, and his bonding evaluation included the following findings:

The data indicate that [T.Y.B.] has cognitive and emotional limitations that have a profound effect on her ability to parent a child. [T.Y.B.] continues to display severe narcissistic and paranoid behaviors that are causing ongoing emotional harm to [Charles]. [T.Y.B.] shows a chronic pattern of defiance and indifference to court orders involving her contact with her children. [T.Y.B.] is oblivious to the emotional needs of a child. She has no concept of a child's need for stability, nurturance and consistency in care. [T.Y.B.] displays a chronic pattern of distorting her historical information. She repeatedly presented information that contradicted both the DYFS record and her own previous reports. [T.Y.B.] denied that she has ever had any problems as a parent. She denied ever physically abusing any child, despite the report of her conviction for this offense. [T.Y.B.] expressed emphatically that she has never been negligent or abusive of her children at any time and that she continues to meet their needs. [T.Y.B.] externalized all problems and [blamed them] on either DYFS or others and indicated that it is her goal to remove DYFS from her life. Such perceptions and beliefs indicate that the past pattern of abuse, neglect and paternal problems continue to remain at high risk for reoccurrence for [T.Y.B.] as she continues to deny any past or present responsibility.

One way in which [T.Y.B.] is causing ongoing emotional harm to [Charles] is in her manner of interacting with him. She had abandoned any contact with him since at least February 2009. When she did interact with [Charles] during the current bonding evaluation, she minimized his feelings. [T.Y.B.] then attempted to sabotage [Charles's] relationship with his foster parent. She encouraged [Charles] to be defiant of the foster parent and attempted to subvert discipline that was in place to hold [Charles] accountable for his behavior. [T.Y.B.] displayed no understanding of how her inconsistency, lack of commitment and contradictory messages was having a negative effect upon [Charles's] emotional functioning and ongoing development.

During the individual interview with [T.Y.B. she] described that everything was fine now with [Charles] because he understood why she did not have contact with him for about 4 months due to her pregnancy. However, it was readily apparent to the examiner that [Charles] was still suffering severe emotional hardship as a result of the current abandonment from his mother and her indifference to his feelings. This pattern of abandonment and loss has been ongoing for [Charles] and the record displays how it is contributing to problems in mood, affect, emotional control, intimacy and trust. [T.Y.B.] encouraged [Charles] to be defiant of the foster parent and not to live there. She presented during the bonding and psychological evaluation with manipulative and defiant behaviors. [T.Y.B.] also encouraged [Charles] to engage in manipulative and defiant behaviors toward the foster mother.

[Charles] is in need of stability in placement and in a caregiver providing for his emotional and physical needs. The only likely way that this will be achieved will be through a termination of [T.Y.B.'s] parental rights to [Charles], leaving him free to be adopted. To continue to have [T.Y.B.] be involved in [Charles's] life would likely lead to continue[d] instances of abandonment, conflict and attempts by [T.Y.B.] to sabotage [Charles's] relationship with his current caregivers. Such actions by [T.Y.B.] would have a high probability of not only continuing to cause harm to [Charles's] current emotional, social and overall development, but cause permanent harm to this child in his development.

On June 15, 2009, Dr. Singer testified he "absolutely" recommended adoption for Charles even though Charles indicated he wants to live with his father. According to Dr. Singer, Charles has "a lot of potential," and adoption was in the child's best interests because it would provide consistency and permanency in his life.

The scope of our review is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Trial courts hear the case and see the witnesses, and they are in a better position to evaluate the credibility and weight to be afforded testimonial evidence. In re Guardianship of D.M.H., 161 N.J. 337, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988). Deference is not appropriate, however, if the trial court's findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

In the present matter, the trial court thoroughly reviewed all of the evidence, including the testimony of the Division's expert witnesses, and we have concluded from our independent review of the record that the trial court's decision to terminate T.Y.B.'s parental rights is amply supported by clear and convincing evidence. Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(1)(E). We only note that expert witnesses often "play a critical role" in termination cases, J.C., supra, 129 N.J. at 22; and that the court did not err in considering the fact-finding order entered in the underlying abuse and neglect action on January 12, 2007, which was based on clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. R.D., 412 N.J. Super. 389, 403-04 (App. Div. 2010).

 
Affirmed.

As a result of this incident, T.Y.B. was arrested and pled guilty to third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a). On June 8, 2004, when she was twenty-six years old, defendant was sentenced to a three-year probationary term, conditioned upon parent counseling "as arranged by DYFS."

Judge Katz noted on the record that he and Dr. Katz "share the same last name but we have no relation to each other."

(continued)

(continued)

13

A-6021-08T4

RECORD IMPOUNDED

June 22, 2010