NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2384-05T42384-05T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.B.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF A.N.A.B. and N.Q.B.,

Minors.

 
__________________________________

Submitted July 18, 2006 - Decided August 11, 2006

Before Judges Parker and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FG-04-53-06.

Yvonne Smith Segars, Public Defender, attorney for appellant J.B. (Ruth Harrigan, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Jennifer A. Lochel, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minors A.N.A.B. and N.Q.B. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

This matter is before the court on an appeal by J.B. from a judgment of the Superior Court, Chancery Division, Family Part, entered on November 18, 2005, terminating her parental rights to her biological children A.N.A.B., born August 11, 1994, and N.Q.B., born August 3, 1997, and granting guardianship of the children to the Division of Youth and Family Services (DYFS). We affirm.

DYFS first became involved with J.B. in 1997 following the birth of N.Q.B., when it was contacted by the hospital and advised that both J.B. and N.Q.B. tested positive for cocaine. DYFS took custody of N.Q.B. and placed him with his maternal great aunt and Godmother. A.N.A.B., who was four years old at the time, was placed with another relative. Both children were subsequently placed with other relatives. Over the next several years, for a myriad of reasons, they were then placed in different foster homes. Both boys experienced behavioral problems throughout these placements.

During this same time period, J.B. struggled with substance abuse. Efforts to address her substance abuse proved unsuccessful. On June 20, 2000, J.B. was convicted of unlawful possession of a controlled dangerous substance and sentenced to three years probation, conditioned upon completion of a drug rehabilitation program. When she failed to complete the program, her probation was extended for an additional three years. On July 14, 2004, J.B. was admitted to Maryville Drug Rehabilitation Clinic for short-term residential treatment. J.B. was discharged less than one month later after successfully completing the program. J.B. was then admitted to Amity House Drug Rehabilitation Clinic (Amity House) on August 13, 2004.

Three weeks after her admission to Amity House, J.B. contacted DYFS to report her admission into a treatment program and to express a desire to reunite with A.N.A.B. A DYFS caseworker immediately commenced a number of assessments, including a child strengths and needs assessment, a family risk assessment, and a caregiver strengths and needs assessment. The caseworker found J.B. was dependent on alcohol and cocaine and expressed concerns for J.B.'s ability to parent her children. She concluded that the children would be at high risk for neglect and abuse, should they be returned to J.B.

J.B. was discharged from Amity House on October 21, 2004, due to her involvement in a physical confrontation with another resident. Amity House determined that discharge was warranted because J.B. posed a threat to the other residents.

On July 7, 2005, DYFS filed a complaint for guardianship, and alleged:

[J.B.] has failed to support, maintain a relationship with or make a permanent plan for [A.N.A.B.] and [N.Q.B.] She has a history of alcohol and drug abuse, homelessness and periods of incarceration. She has apparently abandoned all interest in [A.N.A.B.] and [N.Q.B.] [J.B.] is presently not caring for any of her biological children and her parental rights have been terminated to three of those children. The Division does not believe [J.B.] is capable of parenting [A.N.A.B.] or [N.Q.B.]

The matter was tried before Judge Robert Page on November 14-16 and 18, 2005. Among the witnesses who testified was Amako Omuso, the DYFS caseworker assigned to A.N.A.B. and N.Q.B. She testified that DYFS' plan was to have both children adopted. She believed there was a good chance that A.N.A.B.'s foster mother would keep him because the foster mother was trying to find ways not to have to return A.N.A.B. to DYFS. Although Omuso testified that N.Q.B. was categorized as a select home adoption, she believed there was a much greater chance for the child's adoption once the parent's rights were terminated because prospective adoptive parents would be more willing to adopt at that point.

As part of the guardianship proceedings, DYFS retained Dr. Linda Jeffrey to complete a psychological evaluation of J.B. and a bonding evaluation of J.B. with A.N.A.B. and N.Q.B. Similar evaluations were performed on behalf of J.B. by Dr. Kenneth Goldberg on October 6, 2005.

Both doctors testified during the guardianship hearing that defendant suffered from drug addiction and elevated anti-social traits. They also agreed that defendant "had life management issues," was "likely to feel overwhelmed by ordinary life, responsibilities, and that she[ was] likely to have problems dealing with frustration." Dr. Jeffrey found that J.B.'s psychological profile, coupled with the behavioral issues of the children and observation that the boys displayed "insecure attachment" to J.B., led her to conclude that it would not cause more harm than good to terminate J.B.'s parental rights.

Dr. Goldberg opined that defendant could overcome her substance abuse through a twelve step program and that she was the psychological parent to the boys. While he acknowledged that in returning the children to J.B., she could again fail in her ability to parent the children, it was not in their best interests to terminate parental rights at that time. He was unaware of "what better situations" were available for the children. He opined that the children needed a lifeline to their mother and suggested a "residential treatment facility or a group home or something like that. . . . [I]f they have that connection to the mother, and the mother isn't totally absen[t] in their life, that could have a positive [e]ffect for them."

J.B. testified on her own behalf. She admitted that she had no stable living arrangement. She said she had been in and out of many facilities, but that she had cleaned herself up and was gainfully employed as a hair braider. When she was asked about various services, J.B. stated that DYFS had not offered services and the welfare office refused to help her with housing because she did not have custody of her children. J.B. stated that she believed she could find shelters and people to stay with and that all she needed was a place to cook and wash the children.

On the first day of the hearing, the judge directed J.B. to submit to a urine screening. J.B. told the judge that she did not have to urinate and wanted to go smoke a cigarette. The judge allowed J.B. to take a cigarette break but warned her that if she failed to give a sample then he would find as a matter of fact that she was on cocaine and had relapsed. J.B. did not return to the courtroom that day.

At the conclusion of the hearing, Judge Page rendered an oral decision over two days. He found that the four-prong test of N.J.S.A. 30:4C-15.1 had been satisfied because: (1) J.B. had put the children in significant danger; (2) she did not appear to be able or willing to provide a safe and stable environment; (3) DYFS, probation services, and the judiciary had provided many services that J.B. had rejected or quit; and (4) keeping the children in rotating homes as an alternative to termination of parental rights would cause the children a high degree of harm. Judge Page also noted J.B.'s refusal to submit a urine sample during the hearing was equivalent to a finding that she was still abusing drugs. Finally, he concluded that the record reflected very little bonding between J.B. and the boys and that a court does not have to wait until a child is irreparably harmed before terminating a parent's rights.

This appeal followed. Defendant contends DYFS failed to prove by clear and convincing evidence that the best interests of A.N.A.B. and N.Q.B. called for termination of J.B.'s rights; DYFS failed to satisfy the reasonable efforts standard because it unilaterally ceased all efforts to provide services to J.B.; and the record did not support the conclusion that termination of J.B.'s parental rights would not do more harm than good.

Termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Any decision to terminate parental rights requires consideration of the four-part "best interest of the child" standard, first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-611 (1986), and now codified in N.J.S.A. 30:4C-15.1. The statute provides:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" . . . . if the following 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-15.1a.]

The four statutory criteria "are not discrete and separate." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Rather, "they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid.

Judicial determinations of whether DYFS has satisfied the statutory prerequisites to termination of parental rights are fact sensitive. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005). For the trial judge, who sits as the fact finder, this process involves assessing credibility, which means that the trial judge must sift through the evidence presented, evaluate the demeanor of the witnesses under both direct and cross examination, consider any potential bias or prejudice of the witnesses, and then arrive at a determination of whether DYFS, by clear and convincing evidence, has met the four part test. See N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 274-76 (2004).

On appeal, the factual findings and conclusions of the trial judge are generally given deference, especially "'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). As a reviewing court, our task is not to disturb the "'factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

We have considered the arguments advanced on appeal in light of the record, and for the reasons stated by Judge Page in his comprehensive oral decision of November 16 and 18, 2005, we conclude that the evidence clearly and convincingly establishes that the best interest of A.N.A.B. and N.Q.B., when assessed under the statutory standards set forth in N.J.S.A. 30:4C-15.1a, warrants termination of J.B.'s parental rights. See In re Guardianship of K.H.O., supra, 161 N.J. at 348.

Affirmed.

 

(continued)

(continued)

2

A-2384-05T4

RECORD IMPOUNDED

August 11, 2006