NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.W.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4268-04T44268-04T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.W.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF R.E.C.,

Minor.

 

Submitted October 26, 2005 - Decided

Before Judges Conley and Francis.

On appeal from the Superior Court of New Jersey, Family Part, Salem County, Docket No. FG-17-7-05

Yvonne Smith Segars, Public Defender, attorney (Michael C. Wroblewski, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney (Michael J. Haas, Assistant Attorney General, of counsel; Mara Spiegeland, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor R.E.C. (Lisa C. Castaneda, Designated Counsel, of counsel and on the brief).

PER CURIAM

M.W., the biological mother of R.E.C., appeals from a Family Part judgment terminating her parental rights to the child and awarding guardianship to the Division of Youth and Family Services (Division) for purposes of consenting to adoption. M.W. contends that the evidence presented did not clearly and convincingly establish that the best interests of the child require severance of her parental ties. After considering the record and briefs in light of the applicable law, we are satisfied that the trial judge's findings and conclusions are firmly supported by substantial, credible evidence. Accordingly, we affirm substantially for the reasons set forth in Judge Harold U. Johnson's comprehensive oral decision of March 29, 2005, and his forty-six page supplemental opinion. R. 2:11-3(e)(1)(A),(E). We make the following observations.

In foster care since birth, R.E.C. has lived with his paternal aunt and uncle since he was five months old. His extended paternal family wishes to adopt him. As to M.W.'s parental abilities, the Division's expert, whose testimony the trial judge found to be credible, testified:

Q What are the implications of [M.W.]'s mental health on her capacity to parent?

A Well, certainly as I indicated, the fact that her personality problems are social in nature, have a major impact on the ability to form a parenting relationship and to understand and communicate in the context of that parenting relationship.

And as I said, borderline intelligence doesn't, per se, disqualify an individual from being a parent, but the two factors that one looks at to compensate from that, [M.W.] has problems with. One is adaptive functioning and the other is the support group.

These -- what that means is that she isn't prepared to provide safe parenting. Certainly, she professed to me a great love for her son and a great desire to parent. And I have absolutely no reason to doubt that that is exactly how she feels.

. . . .

By the same token, I must be very forthright. That I'm afraid that history has left her in a situation where she's not currently prepared to provide safe parenting for her son.

Q We discussed that you're aware that [R.E.C.] is medically fragile. Are you aware of the fact that he's involved in Early Intervention also?

A Yes, I am.

Q Would those two factors also be a problem for [M.W.] if she had to parent?

A Yes, it would in that in addition to managing her own problems and addressing the problems that she has as an adult, she would also have to have the ability to be attuned to [R.E.C.] and to be able to work with the people who would be addressing his problems.

A good example of that would be in Early Intervention Program. That's a very parent base program. They come out to the home to provide services, but in EIP, the goal is to teach the parent how to interact with the child, to address certain features of the child's development or behavior. And this would be very hard for her to do.

As to the bonding between R.E.C. and his paternal aunt and uncle, the doctor testified:

Q During the bonding evaluation, what was [R.E.C.] doing?

A Well, [R.E.C.] was doing very normal kinds of toddler behaviors. He -- the way that the foster parents managed him showed a good parenting alliance. They work together to engage him, to entertain him and to keep him comfortable as they were talking to me and providing me this background.

. . . .

So they were able to entertain him. They fed him a bottle while they were talking. He was very affectionate. He -- there's a way that children, who are attached to caretakers, nestle into the caretaker. And that's the way that he was sitting on their laps. You know, he was clearly very used to being cuddled and hugged and they were very affectionate.

And that's all very appropriate and normal.

Q How did he refer to the foster parents?

A The term that I heard [R.E.C.] use, and he didn't have a very loud voice, so he may have said other things, but what I heard him say was, "Dada." And that was toward his foster father. And that would be consistent with what they were saying about his language development.

The foster mother indicated that he was just beginning to call them mommy and daddy, or variants thereof. That's -- so that's what he was referring to them as.

Q Are they his psychological parents?

A Yes.

Q Was there a secure bond?

A Yes.

Q At this point, would it cause [R.E.C.] serious and enduring harm if he was removed from them?

A I think that there is a high probability that the severance of that secure bond would cause serious and enduring harm.

Although a bonding evaluation of M.W. and R.E.C. was scheduled on three occasions, M.W. failed to attend.

The fundamental nature of a parent's rights to her children and the Constitution's protection of those rights are thoroughly recognized, particularly in cases in which the termination of those rights is in issue. See, e.g., 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. P.P., 180 N.J. 494, 505 (2004); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993); N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 599. However, it is also recognized that parental rights are not inviolable, and may, in cases of parental unfitness, be subject to a State's parens patriae interest in the child's welfare when dictated by the child's best interests. K.H.O, supra, 161 N.J. at 347; In re Guardianship of J.C., 129 N.J. 1, 10 (1992); A.W., supra, 103 N.J. at 599. Nonetheless, recognition of the fundamental nature of a parent's right, the permanency of the threatened loss, and the complexity and subjectivity involved in evaluating parental fitness has led courts to impose a heightened standard of proof by clear and convincing evidence upon the State when seeking guardianship of a child and termination of the parent's rights to that child. Santosky v. Kramer, 455 U.S. 745, 762-64, 767-68, 102 S. Ct. 1388, 1399-1402, 71 L. Ed. 2d 599, 612-13, 615-16 (1982); L.A.S., supra, 134 N.J. at 132-33.

Here, termination was sought under the "best interests" standards governed by N.J.S.A. 30:4C-15(c) and 15.1(a). Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1(a) requires the Division to prove:

The child's safety, health or development has been or will continue to be endangered by the parental relationship;

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;

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

Termination of parental rights will not do more harm than good.

These standards are neither discrete nor separate. K.H.O, supra, 161 N.J. at 348. They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. Ibid. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting L.A.S., supra, 134 N.J. at 139).

"In reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determinations and its 'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth and Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part, 179 N.J. 264 (2004) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support. See In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding" and the conclusions which flow logically from those findings of fact. Cesare, supra, 154 N.J. at 413. Applying this standard, we discern ample evidence in the record supporting the judge's conclusion that the best interests of R.E.C. require termination of M.W.'s parental rights.

Here, as to the first prong, the trial court found by clear and convincing evidence that R.E.C.'s safety, health, and development

will continue to be endangered by the parental relationship with the mother and that it would take at least two or three years of intensive one-on-one training in which [M.W.] completely cooperated, which she has not done to date, to possibly have this child placed with her safely.

The trial judge, accepting the testimony of Division expert Dr. Jeffrey, determined that the overwhelming problem was M.W.'s inability to provide a safe, stable, appropriate home for R.E.C. based on her substantial mental and emotional limitations.

As to the second prong, the trial court found that, while not unwilling, M.W. is presently unable to remove the harm that faces R.E.C. However, the trial judge was clearly convinced that if R.E.C. was removed from his paternal aunt and uncle, it would cause "serious and enduring . . . emotional . . . and psychological harm."

Regarding the third prong, Judge Johnson found that the Division had exercised reasonable efforts to help M.W. correct the circumstances leading to placement outside the home, without success. The trial judge noted that M.W. was referred to a multitude of services, which included five different parenting skills classes of which were two twelve-hour, one-on-one classes and overnight stays with M.W. and R.E.C. by a trainer for observational purposes. The trial judge also considered that M.W. had been scheduled for bonding evaluations and "missed almost all of" them. Although she has again begun counseling, M.W. testified that because she was "upset" she did not attend all previously court-ordered counseling sessions. The trial judge concluded that notwithstanding these services, M.W. "has not been able to obtain correction of the problems that led to the removal of the child from . . . her home."

Finally, as to the fourth prong, the trial judge concluded that based on M.W.'s mental limitations, as described by Dr. Jeffrey, and her lack of access to secure housing, the evidence was "strong as to the mother that returning the child to her care would be detrimental to R.E.C." He concluded:

There is absolutely no testimony before this Court in any way whatsoever from any expert or from any person that there would be any harm suffered by this child at all if this guardianship were granted, quite to the contrary. Dr. Jeffrey's report is that there would be serious and enduring harm suffered by the child if taken from the current foster parents, that the mother would not be prepared and could not care for this child for two or three years if she had intensive therapy for that two or three years in which she participated fully and was successful in.

Accordingly, the Court finds in regard to this matter that termination of parental rights will not do more harm than good. There is no testimony there would be any harm. The Court, therefore, finds that termination of parental rights would not do more harm than good in regard to this matter.

We are satisfied that the reasons enunciated by the trial judge are amply supported by the record.

As we concluded in In re Guardianship of A.R.G., 318 N.J. Super 323, 330 (App. Div.), certif. denied, 162 N.J. 127 (1999), where there is substantial, credible evidence in the record to support termination of parental rights, there is no reason to delay permanent resolution. A child cannot afford to wait until such time as their parent might be a fit caretaker, especially where, as our record indicates, unfortunately and through no fault of her own, M.W. is unlikely to obtain that status in sufficient time to benefit her child. See ibid. While we share the hope expressed by the trial judge with respect to the possibility of some future relationship between M.W. and R.E.C., freeing R.E.C. for adoption not only will not do more harm than good, but will provide him with necessary safety, security, and deserved family commitment.

 
Affirmed for the reasons set forth by Judge Harold U. Johnson in his March 29, 2005 oral decision.

Shortly after he was born, R.E.C.'s biological father died in an automobile accident.

Classified as medically fragile at birth, R.E.C. initially was placed in a Special Home Service Provider Home. He continues to require special services as he is considered "developmentally delayed."

(continued)

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11

A-4268-04T4

RECORD IMPOUNDED

December 1, 2005