NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. P.G.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4249-05T44249-05T4

NEW JERSEY DIVISION

OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

P.G.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF C.B.G.,

A Minor.

____________________________________

 

Submitted: October 17, 2006 - Decided November 1, 2006

Before Judges Axelrad and R.B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Salem County, FG-17-27-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Angela N. Domen, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor child, C.B.G. (Lisa C. Castaneda, Assistant Deputy Public Defender, on the brief).

PER CURIAM

P.G. appeals from the March 17, 2006 Family Part judgment terminating her parental rights to her three-year-old son C.B.G. and awarding guardianship to the Division of Youth and Family Services (Division) for purposes of consenting to adoption. Appellant contends the evidence presented did not clearly and convincingly establish that the best interests of her child required severance of her parental ties. After considering the record and briefs in light of the applicable law, we are satisfied the trial judge's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., New Jersey Div. of Youth and Family Servs. v. A.R.G., 36l N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part and remanded, 179 N.J. 264 (2004). Accordingly, we affirm substantially for the reasons set forth in Judge Harold Johnson, Jr.'s thorough and comprehensive written decision. We make the following observations.

I.

C.B.G. was born February 27, 2003. J.G. is C.B.G.'s named biological father; he and P.G. are not married. J.G. surrendered his parental rights on April 5, 2005.

On November 17, 2003, the Division was granted custody of C.B.G. pursuant to an abuse and neglect petition following an incident at a motel where P.G. had brought nine-month-old C.B.G. with her to meet her boyfriend. At about 3 a.m., P.G. attempted to leave with the baby but because she was intoxicated, uncooperative and belligerent, the officers did not feel comfortable leaving the baby with her. The caseworker found C.B.G. to be dirty and unbathed; his clothes were encrusted with formula and stiff from being dirty. At the hospital, doctors observed bruises to C.B.G.'s left forehead and he appeared to suffer from fetal alcohol syndrome.

C.B.G. was placed with a family friend of P.G.'s; however, less than a month later the caretaker requested the Division remove C.B.G. from her home due to P.G.'s demands, intrusiveness and inappropriate conduct. On December 8, 2003, C.B.G. was placed in foster care. The Division explored alternate placements for C.B.G., including P.G.'s cousin, J.G.'s sister, and P.G.'s then-boyfriend T.B. None, however, were acceptable as a placement source, either due to their non-compliance with the Division's investigation or due to their withdrawal from consideration. C.B.G. has been in several different foster placements and apparently is in one now where there is a possibility of adoption.

P.G. has a longstanding history of chronic alcohol and substance abuse, including heroin and narcotic pain medication, and had been incarcerated for twenty months for a drug offense. During her evaluations she continued to test positive for benzodiazepines. On July 30, 2004, after completing a sixteen-week program for alcohol abuse, P.G. was charged with DWI, to which she pled guilty. Moreover, despite treatment at Maryville's intensive outpatient program in September 2004 and February 2005, P.G. twice tested positive for benzodiazepines and once tested positive for benzodiazepines and barbituates.

P.G. was also diagnosed with a multitude of physical, memory, psychological and personality problems, and the experts found she was in a state of denial about her substance abuse. The evidence also contained documentation of P.G. making extremely poor choices that endangered her children, dating back to March 2000 when she left her three small children unattended at home to get cigarettes and was injured in a car accident.

When it became apparent to the Division that P.G. was either unwilling or unable to change her pattern of behavior and was not going to remain substance-free and provide the stability her son needed, the agency changed its plan from reunification to termination. The petition was converted into a guardianship petition by verified complaint filed on January l9, 2005, seeking to terminate the parental rights of P.G. to C.B.G.

During the abuse and neglect proceeding, various compliance reviews and a termination trial, Judge Johnson observed the demeanor of the witnesses, reviewed the exhibits and detailed in an eighty-two page opinion the reasons why C.B.G.'s best interests required severance of P.G.'s parental ties. The judge made detailed findings of fact and credibility, noted the applicable law, and found the Division had established by clear and convincing evidence the four-prong test for termination of parental rights as set forth in New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-610 (1986), and as codified in N.J.S.A. 30:4C-15.1.

II.

At the outset, we note our limited scope of review of the Family Part's factual findings. In reviewing the factual findings and conclusions of a trial court, we are obliged to accord deference to the trial judge's credibility determinations and the judge's "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. A.R.G., supra, 361 N.J. Super. at 78 (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "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." New Jersey Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). We rely upon the trial court's acceptance of the credibility of the expert's testimony and the court's fact-findings based thereon, as it is in a better position to evaluate the witness's credibility, qualifications, and the weight to be accorded to the expert's testimony. Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 19 (1992).

We are not to disturb the factual findings and legal conclusions of the trial judge 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) (citation omitted). Additionally, because of the family court's 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; Div. of Youth & Family Servs. v. M.M., 382 N.J. Super. 264, 271-72 (App. Div. 2006) (citing Rova Farms, supra, 65 N.J. at 483-84). Applying this standard, we discern ample evidence in the record supporting the judge's conclusion that C.B.G.'s best interests require termination of his mother's parental rights.

The applicable principles are well settled. "Parents have a constitutionally protected, fundamental liberty interest in raising their biological children." In re Adoption of a Child by W.P. and M.P., 308 N.J. Super. 376, 382 (App. Div. l998) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982)). "The Federal and State Constitutions protect the inviolability of the family unit." W.P. and M.P., supra, 308 N.J. Super. at 382 (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-559 (1972)). However, 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)). The State, as parens patriae, may sever the parent-child relationship to protect the child from serious physical and emotional injury. W.P. and M.P., supra, 308 N.J. Super. at 382.

When the child's biological parent resists termination of parental rights, it is the court's function to decide whether the parent can raise the child without causing harm. J.C., supra, 129 N.J. at 10. The cornerstone of our inquiry is not whether the parent is fit, but whether the parent can become fit to assume the parental role within time to meet the child's needs. Ibid. (citing A.W., supra, 103 N.J. at 607). "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." J.C., supra, 129 N.J. at 10. "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 to require severance of the parent-child relationship." W.P. & M.P., supra, 308 N.J. Super. at 383 (quoting J.C., supra,, 129 N.J. at 10).

The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383. The State Constitution and N.J.S.A. 30:4C-15 and 15.1a require satisfaction of the "best interests of the child" test by clear and convincing evidence before termination of parental rights can occur. See A.W., supra, 103 N.J. at 612; In re Guardianship of Jordan, 336 N.J. Super. 270, 274 (App. Div. 2001). Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1a requires the Division to prove:

(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 [formerly referred to as "foster"] 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.

These standards are neither discrete nor separate. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). They overlap to provide a composite picture of what may be necessary to advance the best interests of the children. Ibid. "The considerations involved in determination of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

Our examination of the record discloses that all four prongs of the test as they pertain to C.B.G. have been met by clear and convincing evidence. To accept P.G.'s classification of her parenting abilities as merely "inadequate" would do an injustice to her son and place him severely at risk. P.G. was apparently unable to control her alcohol consumption during her pregnancy, which resulted in C.B.G. suffering the consequences of fetal alcohol syndrome. P.G. cannot take credit for C.B.G. no longer being a "medically fragile child" as he has not been in his mother's care since he was nine months old. The last time she had custody of her son, November 2004, she had been drinking, had taken Valium, and was attempting to leave a motel at 3 a.m. with C.B.G, who was dirty and wearing clothes encrusted with formula. All of the experts have found that P.G. cannot now adequately parent her child. Moreover, the record is devoid of any evidence that P.G. has the ability or desire to become parentally fit in time to meet her son's needs. She continues to minimize and deny her substance abuse problems. More critically, even after C.B.G. was removed from P.G.'s custody and placed into foster care, she continued to drink and abuse drugs, despite the numerous programs and services that DYFS provided for her.

It is clear DYFS acted in good faith in its reunification effort by facilitating supervised visitation of C.B.G. as a way of encouraging P.G. to succeed in the various programs and take control of her life. It was apparent after about a year-and-a-half that P.G. was not going to make any significant changes in her life, and it became clear that C.B.G.'s best interests would be served by his mother's parental rights being terminated. The expert testimony heard by the trial court revealed minimal bonding of C.B.G. and his mother and that terminating the relationship would not do the three-year old any serious harm. There is absolutely no merit to P.G.'s argument that the judge should have considered C.B.G.'s sibling rights before he terminated P.G.'s parental rights. C.B.G. has never been raised with his three siblings and would not be, even if he were returned to P.G.'s care. Since 2002, P.G.'s three older children have been in their father's custody; P.G. has supervised visitation with them one hour a month.

As the judge found, P.G. is unable to provide a stable and permanent home that her son so desperately needs. 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. Children cannot afford to wait until such time as their parent might be a fit caretaker, especially where, as our record indicates, P.G. is unlikely to ever obtain that status in sufficient time to benefit her son. Ibid. Freeing C.B.G. up for adoption will not do more harm than good, and will provide hope and stability to a young child who desperately deserves a stable family commitment.

 
Affirmed.

P.G. was married to R.G. and they have three children together. Pursuant to a final restraining order entered in R.G.'s favor against P.G. in 2002, he has custody of the children and she has supervised visitation once a month. At the time of the termination, her son was nine and her twin daughters were seven years of age.

(continued)

(continued)

11

A-4249-05T4

RECORD IMPOUNDED

November 1, 2006