DIVISION OF YOUTH AND FAMILY SERVICES v. J.C. and A.E.G.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4538-04T4

A-4539-04T4

DIVISION OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.C.,

Defendant-Appellant.

_____________

IN THE MATTER OF THE GUARDIANSHIP OF A.G.

_________________________________________

DIVISION OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.E.G.,

Defendant-Appellant.

_____________

IN THE MATTER OF THE GUARDIANSHIP OF A.G.

_________________________________________

 

Submitted: November 1, 2005 - Decided:

Before Judges Kestin and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FG-09-223-05.

Yvonne Smith Segars, Public Defender, attorney for appellant in 4538-04 (Hegge & Confusione, attorneys; Michael Confusione, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant in 4539-04 (Gladys Moriarty, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent in both appeals (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jane E. Kutch, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for A.G. in both appeals (Jeffrey R. Jablonski, Designated Counsel, on the brief).

PER CURIAM

J.C. and A.E.G. have appealed separately from a trial court judgment entered on April 7, 2005, terminating their parental rights to their child, A.G. The matters were tried together, and Judge Bovino expressed the reasons for the result he reached in an oral opinion rendered on April 7, 2005. We have consolidated the appeals.

In each matter, the appellant argues that the Division of Youth and Family Services (DYFS or the Division) did not meet its burden of proof to establish, by clear and convincing evidence, the factors required by statute, N.J.S.A. 30:4C-15.1a, and in case law, see Division of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), before a court may enter a judgment terminating parental rights and establishing guardianship in the Division. J.C. argues, in addition, that "the trial court erred in not requiring DYFS to pursue viable family placements for [the child], which would have avoided terminating [both parents'] rights and severing [the child's] relationship with her entire biological family." She also contends that she "was deprived of the effective assistance of counsel"; and that "the trial court erred in permitting the termination trial to proceed without psychological and bonding evaluations having been conducted on J.C.'s behalf."

The child was born on May 1, 2003, and has been in foster care since June 4, 2003, following an order to show cause entered on the Division's motion. DYFS initially came into the matter formally on a referral from the child's maternal grandmother that the parents were smoking marijuana; that she was purchasing all of the child's clothes, food and diapers; and that the child had a rash.

When the child was born, J.C. and A.E.G. lived with A.E.G.'s parents. In June 2003, J.C. and A.E.G. became homeless; they were transient until October 2003. On October 6, 2003, A.E.G. was arrested and remained incarcerated until June 25, 2004, when he was released on three years' probation. He lived with his parents thereafter and became employed.

J.C. continued to be transient. She resided with friends at least until the time of her psychological evaluation in November 2004. By then, she, too, had become employed.

Tests had revealed J.C.'s involvement with drugs during the period immediately preceding the child's removal on June 4, 2003. She did not cooperate thereafter in establishing that she was drug-free or enrolled in a rehabilitation program.

Initially, A.E.G. refused the Division's June 4, 2003 request for a drug screen. On July 1, however, he submitted to a substance abuse evaluation, stating that he had last used marijuana two months before. The trial judge found that "[t]he evaluation reflected . . . no indication of dependence."

Obviously, A.E.G. could not visit with the child while he was incarcerated from October 2003 to June 2004. Upon his release, he was told he needed to comply with the terms of earlier court orders before he could resume visitation. J.C.'s visitation with the child was sporadic.

Judge Bovino, in rendering his decision, took account of the foregoing facts, other aspects of each parent's personal history, and the psychological evaluations that had been conducted. He concluded:

I'm satisfied that the first prong [of the statutory test] is clearly established by virtue of the fact that the parents were unable to provide for the child a safe, stable, nurturing home at the time of birth and removal by the Division.

The second prong requires a showing that the parent is unwilling or unable to eliminate the harm facing the child, or the parent is unable or unwilling to provide a safe and stable home for the child, and delay of permanent placement would add to the harm. Such harm may include evidence that separating the child from the foster parent would cause serious and enduring emotional psychological harm to the child.

In this case it's abundantly clear that [J.C.] is unable, unwilling to provide a safe and stable home. She has acknowledged to Dr. Hassan . . . that she is not stable enough at this point. Her plan is to have the child placed with [A.E.G.].

The second prong provides that children are harmed by a lack of permanency and need an association with a nurturing adult. A.W. [, supra, 103 N.J.] at 610.

The second prong also requires a showing that the parents are only given a limited amount of time to correct conditions in a home. [In re Guardianship of] K.H.O., [ 161 N.J. 337,] 358 [(1999).]

The fact that a parent may be able to provide a safe, stable home in the future is not enough. A child needs a parent now. [Id.] at 348-49.

In this case the child is in a stable, nurturing home. [A.E.G.] has a plan to take care of the child. He apparently is not in a position to care for the child at this time himself, based upon the testimony of Dr. Hassan and his report.

Children are harmed by a lack of permanency. [Id.] at 357.

I'm satisfied that both [J.C.] and [A.E.G.] are not in a position to provide a safe, stable home themselves for this child at this time.

The second prong also requires a showing that delay in . . . permanency would add to the harm. K.H.O. stands for that proposition.

Additionally, that prong . . . can be proved by showing that the child could have a serious emotional psychological harm if removed from the caretaker. Dr. Hassan does not use that magic phrase, but he uses comparable terms. Lasting. Long term. Irreparable harm. That would be demonstrated by a lack of trust, loss of self esteem, inability to attach, behavior issues.

So I'm satisfied that while he does not use that phrase, he does use comparable language that removal of the child from the caretaker would result in long term, irreparable harm.

The third prong requires the showing that the Division has provided services to help the parents correct the circumstances which led to the placement of the child and the Court has considered alternatives to termination.

In this case the alternatives to termination would possibly be placement of the child with the grandparents as a change in custody. And a potential kinship guardian if the parents were unable to parent some time in the future.

The Kinship Guardian Statute [is] at [N.J.S.A. 3B:]12A-1 [to -7.] [See also N.J.S.A.] 30:4C-84 [to -88;] In re Guardianship of S.V., 362 N.J. Super. 7[6], 86, 88 [(App. Div. 2003).] All indicate that kinship guardian would not be a defense to termination. That there are certain conditions precedent to a kinship guardian application, one of which [is that] . . . the child's adoption is not feasible or likely. That certainly is not in this case as the Division's plan is adoption -- termination and adoption by the current caretaker.

Additionally, the child would have to remain in the custody of the grandparents for a year before that application could be filed. It's also a consideration, just a plan transfer of custody to the grandparents without the termination of parental rights.

Part of that application I assume is predicated on the policy of the Division to place children with relatives as provided for . . . in the Statute.

In order to consider placement with the grandparents the Court also has to consider the bond and harm to the child if removed. And while there might be a policy to place a child with relatives, there is no . . . legal presumption of the child or the children to be placed with relatives.

* * *

In this case the Division intervened prior to the child being born. When [J.C.] came back to New Jersey from Virginia they attempted to assist her to get free natal care without success. They had offered a homemaker. She refused.

They have consistently throughout this case as documented by the contact sheets, the appearances in Court, letters, tried to get a psychological substance abuse evaluation . . . as early as July, 2003, without success. [J.C.] complied in part with the substance abuse evaluation, but never followed up with the substance abuse treatment.

[A.E.G.] did not have the psychological evaluation requested in July of 2003 until October, November of 2004.

The Division has attempted to explore relatives. The maternal grandmother . . . was ruled out because of the DYFS history involving [J.C.]. The paternal grandparents initially chose not to intervene to be considered as a potential caretaker.

The uncle in -- I believe it was South Carolina -- was evaluated. Apparently he did not fully cooperate with the [i]nterstate evaluation. And according to the Division in the evidence before me he has . . . a disqualifying conviction of some type of offense.

Additionally, there was reference to this letter -- and again, the letter is not evidential to me -- that the transfer of custody to the uncle in . . . South Carolina would result in [A.E.G.] obtaining custody and the Division having concern that the uncle could not properly protect the child from the parents if they did not receive the treatment services recommended by the Division.

[A.E.G.] had two substance abuse evaluations. One early on. One after he was released from Jail. The Division appears to be satisfied that he does not need drug treatment.

The Division offered visitation . . . . and there are some visitation logs in the evidence packet, very minimal. But the visitation essentially between [J.C., A.E.G.] and the child was appropriate. No significant problems. * * *

Visitation was suspended for [J.C.] based upon her lack of compliance with the Division. Visitation was likewise . . . suspended for [A.E.G., who] was in jail for an extended period of time, October of 2003 through July of 2004.

If there's an argument that the lack of visitation has hampered or hindered the parents in developing an attachment, the cause of that hindrance is the parents' lack of cooperation and [A.E.G.] being incarcerated.

The Division was very early on interested in trying to help the parents and they had chosen not to cooperate. So any harm that results in their attachment is as a result of their voluntary activities of non-compliance and being incarcerated.

I'm satisfied that . . . the Division's efforts are more than sufficient in this case to try to remediate the circumstances that led to removal and that there are no options to termination.

The fourth prong is, indeed, the more troublesome. The fourth prong requires a showing that termination will not do more harm than good.

In the fourth prong the Court requires a bonding evaluation to assess the nature of the attachment between the parents and the child, the caretaker and the child. Bonding evaluations are important. The Court relies upon experts.

However, the expert's testimony is not persuasive and conclusive in and of itself. The Court is not bound by an expert's testimony. It can give whatever weight it sees fit. [In re Guardianship of] D.M.H., [ 161 N.J. 365,] 382 [(1999)]; In re W.M., 364 N.J. Super. 155, 169 [(App. Div. 2003)].

The weight to be given to an expert's testimony is consistent with common sense and experience. [In re] Yaccarino, 117 N.J. 175, 196 [(1989)].

The Division does not have to prove that there would be no harm to a child as a result of a severing of the biological ties. That's a risk that adheres in all termination cases. K.H.O., [supra, 161 N.J. at] 360.

The potential harm in cutting off access to a biological parent may be necessary to achieve the greater good of securing for the child a permanent home. Division of Youth & Family Servs. v.] B.G.S., 291 [N.J.] Super. 582, 599 [(App. Div. 1996)].

In this case the child -- perhaps the child has been socialized by . . . the caretaker. Dr. Hassan . . . did testify that that was one of the responsibilities of the foster mother. To bring the child around to be introduced to other people. Apparently she has done a very good job of it.

Additionally, she appears to have done a very good job in securing for the child a safe, secure base . . . that the child would go to the parents who she does not have a significant attachment, not show any anxiety, not show any fear, not be frightened, and interact . . . with them. Dr. Hassan even said that he probably could take the child and the child would interact with him appropriately.

That to me seems to indicate that the child is adjusted. Recognizes that its security is with the foster mother. And that this is only a temporary hiatus . . . in my care by going to Dr. Hassan or the parents or the case worker.

Dr. Hassan distinguishes attachment, and as he said again, attachment can be with various people. You have attachment with relatives, classmates, school teachers and so forth. But the child . . . bonds with one person, the person that it seeks as a secure base for security, protection, solace, nurturing. And in this case . . . Dr. Hassan is clear that . . . this child focuses on the caretaker. The caretaker focuses on the child.

Even though there is some attachment to the parents, the grandparents are a potentially viable caretaker. I'm satisfied after a consideration of all of the evidence as Dr. Hassan said in his testimony, there is no one factor which controls the outcome of . . . an evaluation. There's no one factor that controls the outcome of the case. It's the totality of the circumstances, the totality of the facts that are presented.

That all leads me clearly and convincingly that the Division established grounds for guardianship and the parental rights of [J.C.] and [A.E.G.] are to be terminated. The child is to be placed under the guardianship of the Division for the purposes of adoption.

In every instance in which termination of parental rights is sought, a balancing judgment is required between competing factors. The balance implicates fundamental rights and interests of the parents and the children, as well as critical governmental concerns.

The right of parents to enjoy a relationship with their children is of constitutional dimension. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)); In re Adoption of Children by G.P.B. Jr., 161 N.J. 396, 404 (1999); In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993); A.W., supra, 103 N.J. at 599. Parents have a fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). Both the federal and State Constitutions protect the integrity of the family unit. Stanley, supra, 405 U.S. at 651, 92 S. Ct. at 1212-13, 31 L. Ed. 2d at 558-59; A.W., supra, 103 N.J. at 599.

The law presumes that parents will act to promote the best interests of their children. See Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). However, "experience and reality may rebut what the law accepts as a starting point . . . ." Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119. The incidence of child abuse and neglect cases demonstrates that some parents may act in ways that undermine the interests of their children rather than advance them. Ibid.

Government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Id. at 603, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119 (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State as parens patriae may act to protect children from serious physical and emotional harm. This may require partial or complete severance of the parent-child relationship. Yet, "[f]ew forms of state action are both so severe and so irreversible." Santosky, supra, 455 U.S. at 759, 102 S. Ct. at 1398, 71 L. Ed. 2d at 610.

When a biological parent resists termination of his or her parental rights, the courts' function is to decide whether that parent has the capacity to eliminate any harm the child may already have suffered, and whether that parent can raise the child without inflicting any further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The focus of our inquiry is not only whether the parent is fit, but also whether he or she can become fit to assume the parental role within time to meet the child's needs. Ibid. "The analysis of harm entails strict standards to protect the statutory and constitutional rights" of the biological parents. Ibid. The burden rests on the party seeking to terminate parental rights "to demonstrate by clear and convincing evidence" that the risk of "serious and lasting [future] harm to the child" is sufficiently great as to require severance of parental ties. Ibid.

The balance between fundamental parental rights and the State's parens patriae responsibility is promoted by the law's best-interests-of-the-child standard. K.H.O., supra, 161 N.J. at 347. Under that principle, parental rights may be severed 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 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-15.1a.]

See also A.W., supra, 103 N.J. at 604-11. The trial court in this matter applied the four tests of the statute.

Those tests are inter-related and overlapping; they are designed to identify and assess what may be necessary to promote and protect the best interests of the child. K.H.O., supra, 161 N.J. at 348. The considerations involved in determining parental unfitness are "extremely fact sensitive" and require particularized evidence that addresses the specific circumstances of the individual 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 the judge's "feel of the case" based upon his or her opportunity to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We are not to disturb the judge's findings of fact unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). And, the conclusions that flow logically from those findings of fact are, likewise, entitled to deferential consideration on appellate review. See Cesare, supra, 154 N.J. at 412; Rova Farms, supra, 65 N.J. at 484.

Our review of the record in this matter in the light of the arguments advanced by the parties and pertinent standards of law discloses no flaw in Judge Bovino's findings and conclusions, or in his ultimate determination. His detailed evaluation of the facts established at trial, in the context of the four tests of the statute and case law, was well considered. His comprehensive analysis is entitled to deference.

The evidence supports Judge Bovino's findings that DYFS had untaken ample efforts to effect a family placement and that no such alternative was reasonably available.

Given the background facts, we reject J.C.'s argument that the ultimate determination was flawed by the absence of a formal bonding evaluation on her behalf. There were sufficient facts and expert opinion in this record to support the judge's determinations that these parents were not only incapable of providing the support and nuture the child required, but also that, by reason of the parents' own conduct, no bond of any significance had developed between either of them and the child; certainly none that was comparable to the bond that exists between the child and the foster parents, who are prepared to adopt.

In these connections and others, we discern no procedural lapses approaching those we criticized in Division of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245 (App. Div. 2002). Clear and convincing evidence supported all the findings made and conclusions reached.

We also discern no merit in J.C.'s arguments that she was denied effective assistance of counsel as guaranteed under State law. See In re Guardianship of Dotson, 72 N.J. 112, 123 (1976). We have been given no reason to conclude that counsel assigned to J.C. ignored any request from her for an independent psychological assessment to counter the views expressed in support of the Division's case. As for trial counsel's conduct in "permitting J.C. to give a 'statement' to the trial court instead of actually testifying on her own behalf," we note the record reflects that J.C. expressly declined to testify and stated that the "decision not to testify [was her own] decision." The love for the child she professed in her statement, while poignantly expressed, was no sufficient substitute for her well-established lack of parenting capacity. The trial court was fully warranted in regarding the statement to be less weighty than facts that the Division had proved.

 
For the foregoing reasons, because we are in substantial agreement with the conclusions Judge Bovino reached based on the record developed before him, we affirm.

(continued)

(continued)

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A-4538-04T4

RECORD IMPOUNDED

November 23, 2005