NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.K.S.

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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-2188-11T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Appellant,

v.

M.K.S. and J.J.S.,

Defendants-Appellants.

IN THE MATTER OF THE GUARDIANSHIP

OF J.M.S., a minor.

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Submitted April 16, 2013 Decided

 

Before Judges Reisner and Hoffman.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-202-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant J.J.S. (Anna F. Patras, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant M.K.S. (Chanima K. Odoms, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendants, M.K.S. (Molly) and J.J.S. (Jack), separately appeal from the judgment of the Chancery Division, Family Part, terminating their parental rights to their daughter, J.M.S. (Jane). 1 Addressing defendants' appeals in a single opinion, we affirm.

I

The evidence was set forth at length in Judge John A. Fratto's cogent oral opinion of November 30, 2011, and need not be repeated here in detail. We briefly summarize the pertinent facts.

Jack has a lengthy history of violent behavior. In 1999, a shelter evicted him following "a violent outburst." In 2003, he was convicted of theft following allegations that he struck a woman and stole her cell phone. In August 2009, Jack's mother obtained a temporary restraining order against him after he sent her text messages threatening to kill her. In September 2009,

Jack was found guilty of assault for throwing bodily fluids at Department of Corrections employees.

Jane was born on October 13, 2009. In December 2009, the Division of Youth and Family Services (Division)2 received a referral pertaining to Molly and Jack alleging drug abuse, unsuitable living conditions, and domestic violence. Both Molly and Jack admitted marijuana use to a Division caseworker, but the Division was unable to substantiate them for neglect. The Division did, however, open a case for services.

In March 2010, the Division received a referral alleging domestic violence by Jack against Molly. Despite visible bruises on both parties, Jack and Molly denied the allegation.

Later the same month, at Jack and Molly's residence, a Division worker observed Jack and his sister pulling Molly back inside the home as she attempted to leave. The police arrived and transported Molly and Jack to the police station.

At the station, the caseworker observed that Molly's left upper thigh was bruised and bleeding, and that Jane had a long scratch on her head. Molly explained to the caseworker that Jack attacked her after she had confronted him on suspicions

that he was with another woman. According to the caseworker, Molly told her that Jack "started getting loud and angry" then began "pulling her hair and smacking her with an open hand on her face and choking her." Molly went to another room and picked up Jane, then Jack struck Molly in her lower body with a piece of wood from a drawer. Molly admitted she hit Jack once during the argument.

As a result of the incident, Jack was charged with possession of a weapon, aggravated assault, and second-degree child endangerment. Molly obtained a temporary restraining order (TRO) against Jack. Additionally, the Division substantiated Jack for abuse.

Molly signed a case plan with the Division, which required her to maintain the restraining order and to call the police if Jack attempted to contact her or Jane. The case plan further provided that if Molly permitted Jack back into her home, the Division would remove Jane from her custody.

In April 2010, Molly admitted to her Division caseworker that she had dismissed the TRO against Jack. The caseworker later discovered Jack inside Molly's residence and confirmed that he had been living there for a week. Due to the violation of the case plan, the Division removed Jane from the home and placed her with a resource parent. While the Division was

removing Jane from the home, Jack became verbally abusive towards the caseworker and a police officer who was present.

On April 29, 2010, the Family Part signed an order to show cause placing Jane in the custody of the Division. The judge made a negative inference based on Molly and Jack's refusal to submit to an in-court drug screen, finding both would have tested positive.

Thereafter, the Division provided substance abuse services for Molly, which she consistently failed to utilize. She tested positive for marijuana and prescription drugs.3 Further, two substance abuse programs discharged Molly for non-compliance.

Jack and Molly's volatile relationship was prevalent throughout the Division's involvement with them. Molly informed the Division caseworker that Jack hit her approximately two times per week. Molly's sister-in-law informed the Division that Molly had been hospitalized three times due to beatings by Jack. On one occasion, Molly called the police, claiming Jack was following her. As of March 2011, there was evidence of continuing domestic violence between Jack and Molly.

Molly downplayed the domestic violence and failed to take advantage of counseling services the Division provided to

address the problem. Despite disapproval by the Division and the court, Molly permitted Jack to live with her. She failed to attend an appointment for psychological services, and when she did attend, she claimed she fabricated the allegations of domestic abuse. After Molly appeared at a counseling service session with a black eye, the Division offered her financial assistance and housing, but she refused. Two psychologists found that Molly was dependent on Jack and unable to comprehend how the domestic violence between her and Jack could negatively affect Jane.

Jack's mental instability and violent tendencies were constantly on display to the Division and counseling service workers. Jack verbally abused Division workers on multiple occasions sometimes necessitating the assistance of the Human Services Police. He threatened to blow up his mother's house, resulting in his mother obtaining a restraining order against him. Jack also indicated to a counselor that he wanted to kill his mother and stab his Division caseworker. A psychologist described Jack as "an unstable person" and "immature, irresponsible, impulsive, and emotionally labile."

Despite Jack's obvious problems, he failed to take advantage of services offered by the Division and refused to take responsibility for his actions. Jack failed to complete

domestic violence counseling, anger management, and substance abuse counseling. He denied to psychologists that he abused Molly and could not understand why the Division removed Jane. Jack also refused to take psychotropic medication notwithstanding his admission that it would help with his anger issues.

Judge Fratto conducted a termination trial on November 28 and November 29, 2011. At the time of trial, Jane had been with her foster family for over a year. The Division presented the testimony of three Division workers, a police detective, and the expert testimony of a psychologist who had evaluated Molly and Jack. The results of bonding evaluations of Jane with Molly and Jack separately, and with the foster parents, were also presented. Molly testified on her own behalf, and presented the testimony of Jack's mother, a friend, and a Division visitation worker. Jack testified on his own behalf. Much of the factual evidence was presented at trial through the Division's documentations of its investigations and its contact with Molly, Jack, and the foster parents.

On November 30, 2011, Judge Fratto issued an oral decision and signed an order terminating Molly's and Jack's parental rights. He carefully reviewed the evidence and presented his findings of fact and conclusions of law in accordance with the

best interests test, N.J.S.A. 30:4C-15.1(a). Judge Fratto concluded the Division proved by clear and convincing evidence that the best interests of Jane support termination of Molly's and Jack's parental rights so that Jane can be adopted.

II

On appeal, Jack and Molly separately contend that the Division failed to satisfy the four prongs of the best interests test. We disagree and affirm the Family Part's judgment, substantially for the reasons stated in Judge Fratto's decision. We add only the following comments.

"Appellate review of a trial court's decision to terminate parental rights is limited, and the trial court's factual findings should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (citation and internal quotation marks omitted). We are obliged to accord deference to the trial court's credibility determinations based upon the judge's opportunity to observe and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 412 (1998).

A parent's right to enjoy a relationship with his or her child is constitutionally protected. In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993). "Parental rights, though fundamentally important, are not absolute. The constitutional

protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

The best interests of the child standard set forth in N.J.S.A. 30:4C-15.1(a) is an effort to balance these interests. Ibid. This statute provides that DYFS shall petition the court for termination of parental rights if the following four 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.

 

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

"The four criteria enumerated in the best interests standard are not discrete and separate; they 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. Because "determinations of parental fitness are 'extremely fact sensitive,'" ibid. (quoting L.A.S., supra, 134 N.J. at 139), such considerations "require particularized evidence that address the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348.

In this case, the four prongs of the best interests test were proven, clearly and convincingly, by compelling evidence as to both Molly and Jack. As to the first prong, Jane's health and safety were threatened by Molly and Jack's violent relationship. Specifically, Jack harmed Jane when he hit Molly while she was holding her, resulting in an injury to Jane's forehead. Molly threatened Jane's safety by permitting Jack back into her home, unsupervised, in spite of the Division case plan explicitly prohibiting it. See New Jersey Div. Of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) ("A parent has the obligation to protect a child from harms that can be inflicted by another parent.")

As to the second prong, there is significant evidence to show that both Molly and Jack are unable and unwilling to

eliminate the dangers posed to Jane. Throughout the Division's involvement with her, Molly downplayed Jack's domestic violence. She clearly fails to appreciate how violence in her relationship with Jack places Jane at risk. Moreover, Molly failed to take advantage of domestic violence counseling and housing offered to her by the Division. Molly's testimony at trial that she would not live with Jack if Jane were returned to her custody is directly contradicted by her actions. The trial judge found Molly's testimony not credible and we defer to his finding.

There is also substantial evidence that Jack failed to address his anger problems, which pose substantial risk to Jane. Not only were there signs of continuing violence by Jack against Molly, but also Jack physically threatened his mother and a Division caseworker. Jack failed to complete anger management classes and domestic violence counseling, which would have helped him deal with his problems.

We note that the second prong can also be satisfied where "there is clear and convincing evidence that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of her bond with foster parents[.]" K.H.O., supra, 161 N.J. at 337. The trial judge in this case credited the Division's expert's opinion that Jane

would suffer significant emotional harm if removed from her foster parents. The record clearly supports the judge's determination in this regard, as Jane has been with her foster parents since she was six-months old. The Division's expert concluded that neither Jack nor Molly would be able to help Jane deal with the emotional harm that would occur if she were removed from her foster parents.

As to the third prong, the record contains clear and convincing evidence to support the judge's finding that the Division made reasonable efforts to provide services to Molly and Jack. The Division provided them domestic violence counseling, substance abuse treatment, visitation with Jane, psychological evaluations, group therapy, and individual therapy. The Division also referred Jack to anger management.

In addition to the multitude of services offered to Molly and Jack, the Division sought family members as potential caretakers for Jane, but none were qualified. The Division extensively vetted Jack's mother; however, the Division eliminated her as a placement option when it discovered she had prior substantiations of neglect. Moreover, Jack's past threats to his mother show that Jane would be at risk if placed in Jack's mother's home. The Division eliminated Jack's grandmother as a placement option after she refused to complete

the necessary training courses. Jack's mother and grandmother did not appeal the decisions to rule them out. None of Molly's relatives came forward as viable placement options. Although a family friend came forward near the time of trial to express interest in caring for Jane, we agree with the trial judge that it was far too late to consider her.

As to the fourth prong, there is compelling evidence to support the trial court's determination that the termination of Molly's and Jack's parental rights will not do more harm than good. The bonding evaluation of Jane with her foster parents showed that Jane is thriving, and profoundly attached to her foster parents. Jane displayed nothing more than an acquaintanceship relationship with Molly and Jack during the bonding evaluations with them.

Jane's need for stability and permanency strongly supports Judge Fratto's decision to terminate Molly's and Jack's parental rights and permit Jane's foster parents to adopt her. See K.H.O., supra, 161 N.J. at 357. Jane has been with her foster parents since she was six-months old. They want to adopt Jane, and are able to provide a stable, loving, and violence-free home, which neither Jack nor Molly can provide.

As to Jack's argument that Judge Fratto failed to make adequate findings of fact and conclusions of law, we find it

without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

In summary, Judge Fratto did not err in concluding the best interests of Jane require a permanent home and an opportunity to be adopted. He correctly terminated Molly's and Jack's parental rights.

Affirmed.

 

1 For purposes of this opinion, we have given fictitious names to the parties.

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.

3 Molly could not produce prescriptions for the prescription drugs found in her system.

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