NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIORCOURT OF NEW JERSEY

APPELLATEDIVISION

DOCKETNO. A-6000-10T3

A-6001-10T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v

R.B.,

Defendant-Appellant.

____________________________

IN THE MATTER OF THE

GUARDIANSHIP OF R.B.,

a Minor.

____________________________

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

N.N.,

Defendant-Appellant.

_____________________________

IN THE MATTER OF THE

GUARDIANSHIP OF R.B. and

S.S.,

Minors.

____________________________________________________________

October 23, 2012

 

Submitted September 19, 2012 - Decided

Before Judges Graves, Espinosa, and Guadagno.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Union County,

Docket No. FG-20-61-10.

Joseph E. Krakora, Public Defender, attorney

for appellant R.B. (Rashaan S. Williams,

Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney

for appellant N.N. (Robert W. Ratish, Designated

Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney

for respondent State of New Jersey (Andrea M.

Silkowitz, Assistant Attorney General, of

counsel and on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,

attorney for R.B. and N.N., minors (Olivia

Belfatto Crisp, Assistant Deputy Public Defender,

on the brief).

PER CURIAM

In these consolidated appeals, defendant N.N. is the mother of two children: S.S., a son, who is now five years old; and a daughter, Ra.B.,1who is now three. N.N. appeals from judgments entered on June 30, 2011, terminating her parental rights to her children and awarding guardianship to the Division of Youth and Family Services (DYFS or the Division).2 Defendant R.B. appeals from the June 30, 2011 judgment that terminated his parental rights to Ra.B., his daughter. The Law Guardian for the children supports the termination of defendants' parental rights.

On appeal, N.N. presents the following arguments:

POINT I

 

THE TRIAL COURT'S TERMINATION OF THE MOTHER'S PARENTAL RIGHTS WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE.

 

A. THE TRIAL COURT ERRED IN FINDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE CHILDREN'S HEALTH AND SAFETY HAS BEEN OR WILL CONTINUE TO BE AT RISK OF HARM BECAUSE THERE WAS NO SHOWING THAT N.N.'S PAST DRUG USE HARMED OR WOULD HARM THE [CHILDREN].

 

B. THE TRIAL COURT ERRED IN FINDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT N.N. WAS UNWILLING OR UNABLE TO ELIMINATE THE ALLEGED HARM FACING THE CHILDREN BECAUSE SHE COMPLETED PARENTING PROGRAMS AND ANY MISSED TREATMENTS WERE THE RESULT OF DYFS REQUIRING HER TO MAINTAIN AN UNTENABLE SCHEDULE.

 

C. THE TRIAL COURT ERRED IN FINDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT IT MADE REASONABLE EFFORTS TO ADDRESS THE PROBLEMS THAT LED TO PLACEMENT BECAUSE DYFS REFERRED HER TO A TREATMENT PROGRAM THAT REQUIRED N.N.'S ATTENDANCE AFTER SHE WORKED A NINE HOUR OVERNIGHT SHIFT, AND BECAUSE DYFS DID NOT ADEQUATELY EXPLORE RELATIVE PLACEMENTS.

 

D. THE TRIAL COURT ERRED IN FINDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD BECAUSE RECORDS OF VISITATION INDICATED A CLOSE RELATIONSHIP BETWEEN N.N. AND HER CHILDREN.

 

R.B. presents the following issues on appeal:

POINT I

 

THE TRIAL COURT'S TERMINATION OF THE FATHER'S PARENTAL RIGHTS WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

 

A. THE TRIAL COURT ERRED IN TERMINATING THE FATHER'S PARENTAL RIGHTS BECAUSE PRE-TRIAL DETENTION IS AN INADEQUATE BASIS FOR THE TERMINATION OF PARENTAL RIGHTS.

 

B. THE TRIAL COURT ERRED IN RULING THAT THE DIVISION DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE (1) THAT [Ra.B.'S] HEALTH AND DEVELOPMENT HAVE BEEN AND CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP AND (2) THAT [THE] FATHER WAS UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR [Ra.B.] AND THE DELAY OF PERMANENT PLACEMENT WILL ADD TO THE HARM.

 

C. THE TRIAL COURT ERRED IN RULING THAT THE DIVISION DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT [IT] MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP THE PARENTS TO CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILD'S PLACEMENT OUTSIDE THE HOME AND THE COURT [FAILED TO CONSIDER] ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.

 

D. THE TRIAL COURT ERRED IN RULING THAT THE DIVISION ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT THE TERMINATION OF PARENTS' RIGHTS WILL NOT DO MORE HARM THAN GOOD.

We conclude from our examination of the record and applicable law that the trial court applied the correct legal principles and its factual findings and conclusions were adequately supported by clear and convincing evidence. We therefore affirm with the following comments.

"The right of a parent to raise a child and maintain a relationship with that child, without undue interference by the state, is protected by the Unites 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)). Moreover, "[t]he Legislature has declared that '[t]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare.'" K.H.O., supra, 161 N.J.at 347 (second alteration in original) (quoting N.J.S.A.30:4C-1(a)).

Parental rights are not absolute, however. "The constitutional protection surrounding family rights is tempered by the State's parenspatriaeresponsibility to protect the welfare of children." Ibid.(citing In re Guardianship of J.C., 129 N.J.1, 10 (1992)). "The State has a basic responsibility . . . to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J.at 102 (citing K.H.O., supra, 161 N.J.at 347); see alsoN.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.261, 279 (2007) ("The State has a responsibility to protect the welfare of children and may terminate parental rights if the child is at risk of serious physical or emotional harm.") (citing Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979)). Furthermore, our Legislature has determined 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. Under that test, termination is not appropriate unless the Division satisfies each of the following four statutory requirements by clear and convincing evidence:

(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 in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances present in the given case." Ibid.(quoting In re Adoption of Children by L.A.S., 134 N.J.127, 139 (1993)).

The unfortunate facts of this case are set forth at length in Judge Kirsch's comprehensive 101-page written decision on June 30, 2011, and need not be repeated here. The judge heard testimony from three expert witnesses: Dr. Robert Latimer, a psychiatrist, and Dr. Rachel Fite, a psychologist, testified as expert witnesses for DYFS; and Dr. Richard Klein, a psychologist, testified as an expert for N.N.

Dr. Latimer evaluated N.N. on September 20, 2010. He diagnosed N.N. with bipolar disorder and severe borderline personality disorder, aggravated by cannabis and alcohol abuse. He also testified:

She denies using cocaine but she's not reliable. She is passively rebellious, emotionally distant, argumentative, and passively uncooperative. This . . . [renders] her unable to perform the duties of a parent within a reasonable degree of psychiatric certainty. This is going to interfere with her parenting skills.

 

Her bipolar characteristics . . . are aggravated by drug abuse and her serious personality traits I say are a problematic combination. We call that mental illness with chronic condition. This has a very . . . poor prognosis as far as parenting skills [are] concerned.

 

Similarly, based on the psychological evaluations and bonding evaluations she performed, Dr. Fite did "not believe that [N.N. was] able . . . to provide a safe and stable environment for [S.S.] and [Ra.B.], and [did] not believe that she [would] be able to in the foreseeable future."

R.B.'s psychological and bonding evaluation occurred on January 6, 2011, while he was incarcerated at the Union County jail. Dr. Fite testified that R.B. "was open about the fact that he did not have a residence and did not have a job and did not have a substantial work history or an education." She also noted that R.B. had "possible drug abuse issues," and he had been with Ra.B. for "8 or 10 hours of . . . her entire life." Dr. Fite concluded that R.B. would be unable "to provide a home for [Ra.B.] in the foreseeable future." She also concluded that Ra.B. was "securely bonded" with her foster parents because they are "the only parents she had ever known," and Ra.B. would suffer "severe psychological damage" if she was removed from their care.

The trial court determined that Dr. Latimer and Dr. Fite were credible witnesses. On the other hand, the court "gave little weight" to Dr. Klein's recommendation that "there should be family reunification of both children with [N.N.]" under certain conditions. The court found that Dr. Klein's findings and conclusions were "unhelpful and unpersuasive" because they were "repeatedly contradicted"by other evidence in the record. In addition, the court found that Dr. Klein's memory "was faulty," and the bonding evaluations he prepared were not reliable:

Dr. Klein testified that his bonding observations are based on his "intermittent" peering through the receptionist window in the waiting area, and that there is no separate room which he uses for this purpose. While he testified that he personally observes everything that he writes in his reports, he admitted his "assistant," who is his wife, actually records the observations which he subsequently memorializes in his written report. He described his wife as a "very experienced . . . professional," who is "competent to observe behavior." When asked, however, he acknowledged that she is a licensed speech therapist, and not a psychologist. Dr. Klein explained that they had a "system," in that he would signal his wife, either verbally or with the tap of a pen, when he observed something salient so that she would record same. He advised that he and his wife had utilized this practice for some ten years.

 

To say the least, the Court finds the above practice unconventional and rife with obvious and potentially serious problems involving questions of personal observation, subsequently memorialized in writing, and then finally testified to in court. Deputizing his assistant/wife, albeit a "professional" speech clinician, with the task of recording his observations, based on their longstanding purported "cue" system, does not give the Court confidence that said observations and the resulting testimony regarding same have the necessary indicia of independent reliability.

 

Judge Kirsch carefully considered all of the evidence adduced at trial, and he made detailed factual findings as to each defendant. He ultimately concluded that DYFS established the four statutory requirements under N.J.S.A.30:4C-15.1(a) by clear and convincing evidence as to both defendants. Accordingly, he terminated N.N.'s parental rights to S.S. and Ra.B. and R.B.'s parental rights to Ra.B.

The scope of our review is limited. We must determine whether the trial court's findings are "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J.394, 412 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.474, 484 (1974)). "We accord deference to factfinding of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.420, 428 (2012).

In the present matter, we have determined from our independent review of the record that there is substantial credible evidence to support the trial court's findings and conclusions, and we affirm substantially for the reasons stated by Judge Kirsch. As he recognized, S.S. and Ra.B. are entitled to a safe, stable, and permanent home, which neither N.N. nor R.B. can provide.

Affirmed.

1 Because defendant R.B. and his daughter R.B. share the same initials, we refer to the child as Ra.B.

2 On June 29, 2012, the governor signed into law A-3101, which reorganizes the Department of Children and Families, including the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16 eff. June 29, 2012.