NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.F.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5038-04T45038-04T4

A-5398-04T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.F.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF I.A.F.,

Minor.

_____________________________________

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.A.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF I.A.F.,

Minor.

________________________________________________________________

 

Submitted November 15, 2005 - Decided

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FG-14-23-05,

Yvonne Smith Segars, Public Defender, attorney for appellant S.F., A-5038-04T4 (Gilbert G. Miller, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant R.A., A-5398-04T4 (Philip Lago, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent on A-5038-04T4 and A-5398-04T4 (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Andrea C. D'Aleo, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, attorney for minor child on A-5038-04T4 and A-5398-04T4 (Christopher A. Huling, Assistant Deputy Public Defender, Law Guardian, on the brief).

PER CURIAM

These are the consolidated appeals by S.F., the mother, and R.A., the father, from a judgment of guardianship terminating their parental rights to their daughter, I.A.F., who was born on July 30, 2001.

"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Moreover, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986) (quoting Santosky v. Kramer, 455 U.S. 745, 787, 102 S. Ct. 1388, 1412, 71 L. Ed. 2d 599, 628 (1982)). Accordingly, courts have consistently imposed strict standards regarding the termination of parental rights. K.H.O., supra, 161 N.J. at 347. However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. This is because the State, as parens patriae, has a responsibility to protect the welfare of children. K.H.O., supra, 161 N.J. at 347.

The standard for determining the termination of parental rights is known as the best interests of the child test, originally set forth in A.W. and now codified in N.J.S.A. 30:4C-15.1a, which authorizes termination if the Division of Youth and Family Services (DYFS or the Division) can show:

(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.]

DYFS has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R., 155 N.J. Super. 186, 193 (App. Div. 1977). Moreover, the four criteria overlap with one another to provide a comprehensive standard that identifies a child's best interest. K.H.O., supra, 161 N.J. at 348.

In K.H.O., the Court held that where there is evidence that a bond with a foster parent is strong and that a bond with a natural parent, by comparison, is not as strong, the fourth prong of the best interest standard will be satisfied. Id. at 363. New Jersey has a strong public policy favoring permanency. Id. at 357. In all guardianship and adoption cases, the child's need for permanency and stability must be accorded primary status. Id. at 357-58.

On appeal, R.A. argues that the Division failed to present clear and convincing evidence to satisfy all four prongs of the best interest test with respect to him. S.F. makes the same argument regarding the second, third and fourth prongs with respect to her. Both parties also argue that the trial judge erred for failing to order kinship legal guardianship as an alternative to termination. We reject these arguments and affirm.

At the time of I.A.F.'s birth, S.F. was thirty-eight-years old. S.F. had a long history of substance abuse, involving illegal drugs and alcohol. During her pregnancy she knowingly continued to abuse these substances, and at I.A.F.'s birth, both mother and child tested positive for cocaine. I.A.F. exhibited withdrawal symptoms. Based upon these circumstances, hospital personnel made a referral to DYFS.

Upon investigation, the Division identified S.F.'s sister, D.F., who was single and about five years younger than S.F., as well as S.F.'s mother, with whom D.F. resided, as potential relative resources. These individuals were evaluated and determined to be appropriate caretakers. By agreement the child was released directly from the hospital to reside with her maternal grandmother and aunt. S.F. was permitted visitation, under the supervision of the caretakers, conditioned upon her abstinence from illegal drugs.

The Division referred S.F. for a substance abuse evaluation and a treatment program. The Division also referred S.F. and R.A. to a counseling program. Within about one month, S.F. again tested positive for cocaine and was discharged from the drug program, and R.A. failed to comply with substance abuse evaluation recommendations. S.F. was permitted to continue with supervised visitation, but R.A.'s visitation rights were temporarily suspended.

Over the next several months, S.F. experienced mixed results in her efforts to obtain substance abuse treatment. She continued to test positive for cocaine on some occasions. R.A. also exhibited positive drug test results. During the first several months of 2002, the Division continued to offer services to both parents, including supervised visitation and psychological and substance abuse evaluations and treatment. By the end of May 2002, the Division determined that S.F. had made sufficient progress in addressing her substance abuse problem that the case should be closed, which it was on May 23, 2002. At that time, the child remained in the care of her aunt and grandmother.

Sometime after that point, S.F. took custody of the child, which continued until July 2003. However, during those fourteen months, the aunt and grandmother continued to have substantial contact with the child. They provided child care services when the mother was not available, and during some portions of that time, they lived in the same household with the child. The Division received two referrals in January 2003, which were investigated and resulted in the determination that neglect by S.F. was unsubstantiated. In May 2003, S.F. again tested positive for cocaine and was again referred by the Division for substance abuse treatment.

In July 2003, because S.F. repeatedly tested positive for illegal substances, notwithstanding her ongoing treatment status, another referral was made. This time, the Division substantiated neglect and, by voluntary placement agreement, the child was placed with her grandmother and aunt. As before, S.F. was permitted supervised visitation. The child has continuously remained in the custody of her aunt, D.F., ever since that time, and D.F. wishes to adopt her.

S.F. has continued to have supervised visitation. However, because of disputes, which on at least one occasion led to a physical altercation, with her sister, D.F., the Division made arrangements for a therapeutic supervised visitation program. Throughout this time, R.A. has shown no interest in exercising visitation rights or having contact with I.A.F. We note that R.A. was married and had three children with his wife, and he had little or no contact with those children. R.A. has never been the caretaker of I.A.F. and has expressed no interest in obtaining custody of her.

On January 20, 2004, the Division filed a complaint for care, custody and supervision of I.A.F., and on September 16, 2004, it filed a complaint for guardianship, seeking to terminate the parental rights of S.F. and R.A. While those proceedings were pending, S.F. continued to repeatedly test positive for cocaine and continued in her failed efforts at substance abuse treatment upon referrals to programs by the Division. The supervised visitation arrangements for S.F. continued. Throughout this time, as I.A.F. reached an age of understanding, the parties have consistently instilled in I.A.F. a clear understanding that S.F. is her mother and D.F. is her aunt.

Division workers discussed with D.F. potential permanency plans. D.F. expressed her preference for adoption as opposed to kinship legal guardianship. D.F. was concerned that unless she adopted I.A.F., there would be a continuing and long term tension between D.F. and S.F. regarding the upbringing and decision making with respect to I.A.F. She anticipated that her sister would continued to abuse drugs and not be fit to parent I.A.F., but would continued to seek that right. She was concerned that such a situation would have a deleterious effect on I.A.F., who would be placed in a position to have to choose between her mother and her aunt.

D.F. has consistently expressed her willingness to allow both parents to continue to enjoy a relationship with I.A.F., which she intends to continue after her anticipated adoption of the child. However, she wishes to control the situation in the child's best interest. She understands and is willing to forego any child support from the parents, which she would be entitled to receive under kinship legal guardianship, but not with adoption.

Psychological evaluations were performed for the Division by Dr. Frank Dyer and for S.F. by Dr. Doreen Sperber-Weiss. Dyer opined that S.F. suffered from a personality disorder not otherwise specified with prominent anti-social and narcissistic features. He found that S.F. was unable to place the needs of her child above those of herself. He concluded that S.F. had severe parenting deficits and she was not an appropriate candidate for custody of I.A.F. because she would expose her child to unnecessary risks of neglect. Dyer found that S.F.'s prognosis for improvement was poor, based upon her long and severe substance abuse history, her continuing denial of her problem, and her continuing shifting of blame and responsibility for her problems to others.

Sperber-Weiss did not disagree that S.F. was not presently capable of parenting I.A.F., as of the time of her evaluation in February 2005. However, Sperber-Weiss opined that the proceedings should be held in abeyance for one year and if S.F. maintained sobriety during that period, she should be reunited with her child and her parental rights should not be terminated. In her view, there would be no harm to the child by this arrangement because the child would continue to have contact with her mother, her aunt and her grandmother, and the status quo would not be detrimental to I.A.F.

Both experts also conducted bonding evaluations. In Dyer's opinion, I.A.F.'s closest attachment was to her aunt, whom she regarded as her psychological parent. Dyer found a bond between mother and child, but not as strong, and he concluded that if I.A.F.'s contact with her mother was terminated I.A.F. would suffer some loss but would not experience severe and enduring harm, because her primary attachment was to D.F.

Sperber-Weiss found a close bond between I.A.F. and both her mother and her aunt and acknowledged that the aunt had provided a stable and positive home life for I.A.F. and was committed to caring for her on a long-term basis.

With respect to R.A., Dyer found a continuing substance abuse problem, mild mental retardation and a personality disorder not otherwise specified with prominent narcissistic features. He noted that R.A. showed no interest in becoming the caretaker for his daughter. Based upon R.A.'s attitude, mental condition and substance abuse status, he opined that R.A. would not be a fit parent for I.A.F.

Dyer also evaluated I.A.F. He found that she had some behavioral and emotional problems, due, at least in part, to the residual effects of her in utero exposure to cocaine. In Dyer's opinion, adoption would provide the most desirable alternative because it would provide the stability and permanency required for I.A.F.

The matter was tried before Judge Critchley on April 25 and 26, 2005. Both parties were present and represented by counsel. The judge rendered an oral decision on May 5, 2005, in which he found that the Division established by clear and convincing evidence all four prongs of the best interest test, and in which he rejected the possibility of kinship legal guardianship as an alternative to termination.

The first prong was easily satisfied with respect to S.F. based upon her substance abuse during pregnancy, as a result of which the child was born positive for cocaine, and based upon S.F.'s continuing substance abuse up to the time of trial, nearly four years after I.A.F.'s birth. S.F. does not dispute the judge's finding regarding prong one as to her. The judge also found the first prong established with respect to R.A. because of his persistent lack of involvement or desire for involvement in the care and custody of his child. The judge also noted R.A.'s substance abuse issues as a factor supporting this finding.

The judge found the second prong established with respect to both parents because of their continuing inability and unwillingness to provide a safe and stable home for the child, and he found that further delay in permanent placement would add to the harm. The judge found that the Division provided both parents with substantial services, thus easily establishing the third prong.

Finally, Judge Critchley found that the Division clearly and convincingly established that termination would not do more harm than good. The judge made these findings:

As I mentioned before, the four prongs are not discreet and many of the considerations that apply to one overlap and apply to another and many of the findings that I made with respect to the first three prongs support the conclusion that termination of parental rights will not do more harm than good.

As I mentioned, we have a good situation in that -- and I should acknowledge and find that there is a bond between [I.A.F.] and her mother and fortunately the circumstances of this case will allow that to continue and I hope flourish as [I.A.F.] grows into a young girl and an adolescent and hopefully [S.F.] will continue in recovery and I think that because of that circumstance there's certainly adequate opportunity to really have no harm to the child because of any breaking of a tie with the biological mother. That just doesn't have to happen at all.

At the same time, as I've mentioned before, given the timeline in the case, the fact that [I.A.F.] is nearly four, that the problems that I've previously referred to the parents have persisted into 2005, it is absolutely the case that resolution and the granting of guardianship for the purpose of allowing [D.F.] to adopt [I.A.F.], if that is -- and that is the plan at this time, subject to some of the considerations I mentioned before, that that is the plan that will give stability, permanence to [I.A.F.]. . . .

Dr. Dyer, in his report on Page 24, talks about some of the issues that particularly are relevant to [I.A.F.]'s specific life situation. He says and he recites some of the health and development issues that are present for [I.A.F.], some behavioral issues that perhaps are related to drug toxicity at birth, some impulse control and frustration tolerance issues. He characterizes [I.A.F.] as somewhat fragile and in need of help and he says, "It is imperative that [I.A.F.] experience no further disruptions in the continuity of her care and that she enjoy the benefit of being with a stable, reliable, nurturing parent figure who is able to provide appropriate structure, guidance, and positive role modeling."

. . . .

["]Clearly," Dr. Dyer concludes, "it is the maternal aunt [D.F.] who is able to fulfill this role."

In his testimony Dr. Dyer identified [D.F.] as the central parental figure in [I.A.F.]'s life, meaning it is [D.F.] that [I.A.F.] looks to to satisfy her everyday needs for nurture and protection. This stands to reason because [I.A.F.] has been cared for directly by her aunt for the majority of her life directly and has been -- the maternal aunt has been in her life for her entire life.

And so I think that Dr. Dyer appropriately identified [D.F.] as the primary attachment figure, I think was his language, a psychological parent, and the disruption of this relationship would be the occasion for significant trauma to the child's emotional life.

The judge also rejected the arguments by both parents that kinship legal guardianship would be preferable to termination. He noted the "preference in the law for the greater permanency and stability of adoption," and, finding that D.F. was willing and able to adopt and preferred adoption to kinship legal guardianship, refused to impose kinship legal guardianship "as a sort of a compromise alternative to an available adoption or a comprise result to a possible termination of parental rights . . . ." We agree with this finding and conclusion.

The Legislature has established kinship legal guardianship as an appropriate alternative in cases "where adoption is neither feasible nor likely," N.J.S.A. 3B:12A-1c, which must be clearly and convincingly proven as a prerequisite to implementing that alternative. N.J.S.A. 3B:12A-6d(3)(b). That is not the case here. We are satisfied that D.F. expressed a sufficiently clear understanding of the two alternatives and made a knowing choice in favor of adoption for reasons that were well-grounded and in I.A.F.'s best interests. The judge did not err in rejecting the kinship legal guardianship alternative in these circumstances. See N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494 (2004).

 
The findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, because of the particularized expertise of Family Court judges in family matters, we accord enhanced deference to Family Court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998). From our review of the record, we are satisfied that the judge's findings regarding the four-prong best interests test and the potential applicability of kinship legal guardianship are well supported by the record and we will not disturb those findings on appeal. Accordingly, we affirm substantially for the reasons expressed by Judge Critchley in his oral decision of May 5, 2005.

Affirmed.

(continued)

(continued)

15

A-5038-04T4

RECORD IMPOUNDED

December 6, 2005