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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4500-05T44500-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

vs.

D.M.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF D.L.M. and A.A.M.,

Minors.

 
__________________________________

Submitted: November 9, 2006 - Decided December 4, 2006

Before Judges Cuff and Fuentes.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Salem County, Docket No. FG-17-40-05.

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

Stuart Rabner, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; James P. Gentile, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minors D.L.M. and A.A.M. (Jennifer L. Slutter, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this appeal, we review an April 4, 2006 order terminating the parental rights of D.M. to his two young daughters, D.L.M. and A.A.M. The oldest girl was born in March 2001; her sister was born in May 2002. We affirm.

Following a two-day trial, the judge rendered an oral opinion in which he found that the Division of Youth and Family Services (DYFS) had proved by clear and convincing evidence that the children had been abused and neglected by their parents, that neither parent was willing or able to eliminate the harm facing the children, that DYFS had made reasonable effort to provide services to both parents and had considered reasonable alternatives to termination of parental rights, and that termination would not do more harm than good. Specifically, the judge found that D.M.'s persistent use of marijuana led him to abdicate care of his children first to C.B., the mother of his daughters. C.B.'s substance abuse prevented her from caring for her children, her home or herself. When DYFS intervened, the children and the house were filthy.

When D.M. moved in with his girlfriend, K.D., after C.B. left him and the children, he entrusted the care of the children to his girlfriend. He failed to obtain medical coverage for his children in spite of its availability. A.A.M., who suffered seizures, did not get the necessary care for her condition because D.M. could not pay for the prescriptions.

When D.M. was excluded from K.D.'s home as a result of domestic violence, he left the children with K.D. DYFS assumed care and custody of the girls when D.M. was incarcerated for failure to pay fines. He left the girls in the care of K.D. As a result of D.M.'s neglect of his children, his oldest daughter has become parentized. Finally, D.M.'s persistent unemployment and lack of a stable residence has and continued to place his daughters at risk of harm to their health and safety.

The judge also found that D.M. was unable or unwilling to alleviate the harm to his children due to his continual drug use, his failure to enroll in offered programs, and his failure to establish a home of his own. At the time of trial, the judge found that D.M. was living in a one bedroom apartment with his most recent girlfriend. The judge also found that the children were establishing a bond with their foster parent. D.M.'s inability to care for his children required removal of the children from his care and allowed this bond to begin to form. Judge Johnson found that interruption of the relationship with the foster parent would cause additional harm to the children.

The judge also found that DYFS offered a "multitude of services" to D.M., all of which he failed to accept. He refused to enroll in an in-patient drug rehabilitation program. Although D.M. acknowledged that the children were removed from his care at least in part due to his drug use, he "does not believe that marijuana is bad for him." Furthermore, the judge found that DYFS made reasonable efforts to identify alternative placements. None of the grandparents were available. The paternal great-grandmother was ruled out due to the cluttered nature and size of her home, and concern that she could not adequately care for the children as she aged.

Finally, the judge found that D.M. refused services in the past and would probably continue to do so. In addition, D.M is unable to identify the problems faced by his children, unable to nurture them, and unable to support them emotionally if they were returned to his care. Therefore, the judge found that termination of D.M.'s parental rights would not do more harm than good.

On appeal, D.M. concedes that DYFS proved the first and second prongs of the best interests test by clear and convincing evidence. He contends, however, that DYFS did not carry its burden on the third and fourth prongs. We disagree.

The "best interest" test was initially formulated by the Supreme Court in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591, 604-11 (1986), and has been codified in N.J.S.A. 30:4C:15.1a. This statute provides:

(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 [foster, or] 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.]

Its purpose is to discern when it is appropriate for the court to intrude and disrupt the parental relationship. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004). The four prongs of the test are not to be considered watertight compartments but "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

Although the clear and convincing burden of proof assigned to DYFS is high, an appellate tribunal's role is limited to determining "whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court . . . and a trial court's factual findings 'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" P.P., supra, 180 N.J. at 511 (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993))).

D.M.'s argument that the evidence does not support the trial judge's findings as to the third and fourth prongs is unfounded. N.J.S.A. 30:4C-15.1c defines "reasonable efforts" as

attempts . . . to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to: (1) consultation and cooperation with the parent in developing a plan for appropriate services; (2) providing services that have been agreed upon, to the family, in order to further the goal of family reunifications; (3) informing the parent at appropriate intervals of the child's progress, development and health; and (4) facilitating appropriate visitation.

The adequacy of these efforts is not measured by the success of the services provided to the parent. In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999).

Here, DYFS made considerable efforts to provide services to D.M. in an effort to reunite him with his daughters. These services included parenting skills classes, substance abuse treatment, psychological evaluation, psychotherapy, anger management and regular visitation with his daughters. These efforts satisfy the "reasonable efforts" standard. See N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 437 (App. Div. 2001) (provision of parenting programs, seminars and classes constituted reasonable efforts, even though parent was often noncompliant), certif. denied, 171 N.J. 44 (2002). D.M., however, repeatedly failed to take advantage of these services, even when transportation was provided, and attendance was court-ordered. D.M. slept through various visitation sessions, ignored his daughters at some sessions, and chose not accept offered services because he did not believe that he needed them.

D.M. also argues that DYFS failed to consider designating his seventy-three year old grandmother the kinship legal guardian of his daughters as an alternative to termination of parental rights. Kinship legal guardianship has been created as an alternative to termination of parental rights. N.J.S.A. 3B:12A-6d. The purpose of a kinship legal guardianship is to:

formalize the status of a relative who agrees to take on responsibility for a child, and can remain in place throughout the child's minority. Unlike a judgment terminating parental rights, kinship legal guardianship would not cut off the legal relationship of the parent and child. That is, the parent remains entitled to visitation and responsible for child support; she also has the right to seek termination of the guardianship and a resumption of custody if at a later date she is able to provide a safe and secure home for the child.

[N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 87 (App. Div. 2003).]

The Supreme Court has held that a kinship legal guardian may only be appointed when "adoption of the child 'is neither feasible nor likely.'" P.P., supra, 180 N.J. at 512.

Here, adoption of the girls appears both feasible and likely, as their foster mother has expressed her desire to be their adoptive parent. Therefore, kinship legal guardianship is inappropriate.

Moreover, the record supports the finding that D.M.'s grandmother would not be an appropriate kinship legal guardian. The great-grandmother's home lacked adequate space for the girls. She was informed when the girls first were placed out-of-the home that her house was cluttered and cramped and that she could be reevaluated for placement if this situation changed. Yet, as recently as the week before the start of trial, she "still hadn't really cleaned up the house and that she was . . . still trying to do that." The trial judge observed that the great-grandmother "know[s] deep down in her heart [that] it would be virtually impossible for her to raise them." Further, although the great-grandmother's age alone was not cited as a reason not to place the children with her, her diminutive size and age raised questions of her ability to protect the children from unsupervised contact with D.M. and otherwise safeguard their interests.

Similarly, the finding as to the fourth prong, that termination will not do more harm than good, is also well-supported by the record.

This court stated:

In determining whether termination of parental rights will not do more harm than good, the court is required to consider and balance the relationship of both the parent and child, and must determine whether the child will suffer greater harm from terminating the ties with the natural parents than from the permanent disruption of the relationship with the foster parents.

[A.G., supra, 344 N.J. Super. at 435 (citing K.H.O., supra, 161 N.J. at 355).]

Here, there is substantial evidence that both children suffered from neglect while in D.M.'s care.

The evaluation of D.M. by the psychologist stated that defendant has narcissistic tendencies, fundamental personality problems and paranoia. She also stated that he is "self-centered, self-absorbed and lacking in empathy." The psychologist concluded that termination of defendant's parental rights would not cause his children to suffer serious and irreparable harm because he "is unlikely to be able to provide reliable guidance, nurturance, attention or monitoring at a minimum level of care . . . [subjecting the children] to . . . significant risk of harm if placed in [D.M.'s] care." The psychologist testified that even if D.M. were to actively commit to psychotherapy, parenting classes and rehabilitation for drug use, this process could take two years, subjecting the children to continued instability at a crucial time in their development and causing them permanent harm.

Additionally, there is substantial evidence that D.M.'s children will suffer significant harm if removed from the care of their foster mother. Each child had made a very positive adjustment, displaying features of secure attachment and the establishment of the foundation for secure attachment. The psychologist believed that if the children remained with their foster mother, "they will experience the stability and security necessary for normal development." Further, the psychologist found that both girls were at risk for further harm if additional instability was introduced into their daily lives, and recommended that they remain in their foster mother's care. The foster mother has indicated her desire to adopt the girls, thereby providing to them a stable and loving home.

The evidence thus supports the factual findings of Judge Johnson and his conclusion that these circumstances satisfy the statutory best interests test by clear and convincing evidence. The April 4, 2006 order is, therefore, affirmed.

Affirmed.

 

The parental rights of C.B., the mother of D.L.M. and A.A.M., were also terminated. She has not filed an appeal.

D.M. and K.D. are the parents of a child born three months after the birth of A.A.M.

(continued)

(continued)

11

A-4500-05T4

RECORD IMPOUNDED

December 4, 2006