NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2362-05T42362-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent.

v.

D.H.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.H.,

A Minor

________________________________________________________________

 

Submitted June 20, 2006 - Decided July 13, 2006

Before Judges Stern and Fall.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Morris County,

FG-14-28-05.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael C. Wroblewski, Designated

Counsel, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian

for J.H. (Christopher A. Huling, Assistant Deputy

Public Defender, on the brief).

Zulima V. Farber, Attorney General, attorney

for respondent New Jersey Division of Youth and

Family Services (Andrea M. Silkowitz, Assistant

Attorney General, of counsel; Patricia J. O'Dowd,

Deputy Attorney General, on the brief).

PER CURIAM

D.H., the natural mother of J.H., appeals from a judgment for guardianship entered on November 1, 2005, terminating her parental rights and placing J.H. in "the guardianship, care, custody and control" of the Division of Youth and Family Services (DYFS). On this appeal D.H. argues:

POINT I. THERE DID NOT EXIST SUBSTANTIAL CREDIBLE EVIDENCE SUPPORTING THE COURT'S FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

(A) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THE HEALTH AND DEVELOPMENT OF THE CHILD WAS AND CONTINUED TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

(B) THE PARENT IS WILLING OR ABLE TO ELIMINATE THE HARM FACING THE CHILD.

(C) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP D.H. CORRECT THE CIRCUMSTANCE WHICH LED TO HER CHILD'S PLACEMENT OUTSIDE THE HOME.

(D) TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

We reject these contentions and affirm the judgment.

I.

The record includes proofs that J.H. tested positive for cocaine at birth on September 9, 2003, and that D.H. has continued to test positive for cocaine and alcohol throughout her various endeavors to obtain treatment and to avoid significant aftercare following attendance in drug treatment programs. Prior to trial, H.A., the natural father of J.H., surrendered his rights to the child "in favor of" D.H.'s parents.

A psychological evaluation of D.H. by Dr. Rachel Jewelewicz-Nelson concluded that she had a "very poor prognosis for rehabilitation and . . . a high probability for relapse of substance abuse." The doctor also reported that D.H.'s objection to the termination "stem[med] more from her narcissistic need to claim her son as her own than out of a deep desire to be with him and to be involved in [h]is day-to-day upbringing."

Dr. Jewelewicz-Nelson also conducted bonding evaluations with J.H. and both of his parents and with his maternal grandparents. She observed the interaction with the latter to be "more appropriate" than with his parents, and concluded that J.H. would suffer and be harmed by being separated from his grandparents but not his parents. Dr. Jewelewicz-Nelson further concluded that D.H., who had missed visitations, had no "deep desire to be with" her son. In summary, Dr. Jewelewicz-Nelson stated:

Although it is our legal and societal presumption that children should live with their biological parents whenever possible, it is my clinical judgment, with a reasonable and acceptable degree of psychological certainty, that [J.H.] would suffer greater enduring emotional and psychological harm by being separated from the [grandparents] who have become his psychological primary parents, than by termination of the parental rights of the biological parents. Particularly in light of the fact that [the parents] can continue to be a part of [J.H.'s] life even after termination of parental rights, it seems that [J.H.] has everything to gain and nothing to lose by being adopted by [the grandparents].

D.H. did not appear for the trial. She had been "discharged" from her homeless shelter and left her place of employment. She did introduce an expert report, which the judge considered "not to be a viable plan and to be inconsistent with the intent of the statutes focusing on guardianship cases." The report is not embodied in defendant's appendix although her brief refers to it.

We recognize that the rights of parents to enjoy a relationship with their children is of constitutional dimension. In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 403-04 (1999); 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)); New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 599 (1986)). Parents have a constitutionally protected 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); 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. Nevertheless, government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)); see also A.W., supra, 103 N.J. at 599.

"The State as parens patriae may act to protect minor children from serious physical or emotional harm," which may require a "severance of the parent-child relationship." A.W., supra, 103 N.J. at 599 (quoting In re Dep't of Pub. Welfare, 421 N.E.2d 28, 36 (1981)); see also Santosky, supra, 455 U.S. at 759, 102 S. Ct. at 1398, 71 L. Ed. 2d at 610.

When the child's biological parents oppose termination of parental rights, our function is to decide whether the parent can raise the child without causing harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm" and 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 natural parents." Ibid. The burden rests on DYFS "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 achieved through evaluating the best interests of the child. K.H.O., supra, 161 N.J. at 347. Under that standard, parental rights may be severed only 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 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 criteria "are not discrete and separate." K.H.O., supra, 161 N.J. at 348. They "overlap . . . to provide a comprehensive standard" of what may be necessary to advance the best interests of the child. Ibid. The considerations involved in determining parental fitness are "'extremely fact sensitive'" and require particularized evidence that addresses the specific facts of each case. Ibid. (quoting In re Adoption of L.A.S., 134 N.J. 127, 139 (1993)).

In reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to his or her 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, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). We are not to disturb the judge's findings unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). This is particularly true in a case such as this because of the special expertise of judges sitting in the Family Part. Cesare, supra, 154 N.J. at 413.

Applying these principles to the record before us, we conclude that the trial judge properly found that DYFS had proven by clear and convincing evidence that the termination of D.H.'s parental rights was in the best interests of J.H., and we affirm the judgment substantially for the reasons stated by Judge John B. Dangler in his oral opinion of November 1, 2005.

 
Affirmed.

The child is sometimes referred to as J.I.A. in light of his father's last name.

J.H. was placed with his maternal grandparents where, we are told, "he remains to date." The grandparents plan to adopt him.

(continued)

(continued)

8

A-2362-05T4

RECORD IMPOUNDED

July 13, 2006