DIVISION OF YOUTH AND FAMILY SERVICES v. S.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4687-04T44687-04T4

DIVISION OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.R.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF A.R.D.R., A MINOR.

________________________________________________________________

 

Submitted January 30, 2006 - Decided

Before Judges Cuff and Holston, Jr.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-257-04.

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

Nancy Kaplen, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Brett L. Carrick, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor child (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, S.R., appeals the Family Part's March 11, 2005 order for guardianship by which S.R.'s parental rights to her son, A.R.D.R., age three, were terminated and guardianship of A.R.D.R. was granted to the Division of Youth and Family Services (DYFS). We affirm substantially for the reasons expressed in Judge R. Benjamin Cohen's thorough and well-reasoned oral opinion consisting of thirty-one transcribed pages.

A.R.D.R. is S.R.'s fifth child, none of whom are in her care. Her parental rights have been involuntarily terminated to two of her other four children. S.R. has a longstanding drug problem. When A.R.D.R. was born on August 10, 2004, he tested positive for cocaine, heroin, and methadone. S.R. admitted to using drugs throughout her pregnancy and refused drug treatment offered by DYFS after A.R.D.R.'s birth. A.R.D.R.'s exposure to drugs in utero required his confinement in the hospital until September 27, 2002, when he was discharged to the care of T.T., a family friend, who is A.R.D.R.'s current foster parent and the person who A.R.D.R. considers to be his psychological parent.

S.R. has been involved with drugs since the age of eighteen. She attempted drug rehabilitation twice prior to A.R.D.R.'s birth but was unsuccessful in maintaining long term sobriety. After A.R.D.R.'s placement with T.T., S.R. was in "missing status" for a year and one-half and did not resurface until the complaint for guardianship was filed.

Although S.R. has never been a caregiver for A.R.D.R. and although she has remained drug free for the last fourteen months since her release from jail, and she lives in a rooming house and is employed only on a part-time basis at K-Mart. She is, therefore, unable to maintain a safe and stable home where A.R.D.R. can live. She also lacks the financial ability to obtain such housing and to support her son.

On appeal S.R. claims that DYFS failed to prove by clear and convincing evidence the second, third and fourth prongs of the "best interests" of the child standard set forth in N.J.S.A. 30:4C-15.1(a). See N.J. Div. of Youth and Family Serv. v. A.W., 103 N.J. 591, 604-10 (1986). Under this test, DYFS must prove by clear and convincing evidence the following four elements:

(1) The child's health and development have 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 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 to the child.

[N.J.S.A. 30:4C-15.1(a).]

Our Supreme Court has cautioned that these criteria are neither discrete nor separate. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). "[T]hey relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid.

The underlying concern for a child's welfare is the need for permanency within a reasonable timeframe. In re Guardianship of J.C., 129 N.J. 1, 26 (1992). There is a "strong public policy in favor of permanency . . . [and] [i]n all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." In re Guardianship of K.H.O., supra, 161 N.J. at 357. This principle has been codified by Title 30 of the New Jersey Statutes, which was amended to conform to the Federal Adoption and Safe Family Act of 1997 (ASFA), prohibiting a parent from keeping his or her child in foster care for a protracted period of time. See N.J.S.A. 30:4C-15 (requiring courts to hold permanency hearings for all children who have been in placement for twelve months and, unless there is an exception, requiring DYFS to file guardianship complaints for all children in placement for fifteen of the most recent twenty-two months). Ultimately, the objective of the best interests of the child test is to protect the emotional, mental, psychological, and physical well-being of the child. In re Guardianship of J.C., supra, 129 N.J. at 26.

Judge Cohen determined that the child's safety, health and development has been or will continue to be endangered by the parental relationship. S.R. has been absent for a substantial portion of the child's life, has never been the primary caretaker, and was not willing to care for the child through her extended absence. Therefore, the first prong of the "best interests" test has been satisfied.

The judge also determined that the second prong of the statutory test was satisfied. S.R. is unable or unwilling to eliminate the harm facing A.R.D.R., is unable or unwilling to provide a safe and stable home for him, and a delay in permanent placement will add to the harm. The trial record established that the mother took no part in the first two years of the child's life due to her longstanding addiction to drugs. Since the birth of A.R.D.R., she initially refused drug treatment offered by DYFS. She rarely visited the child in his early life and at one point disappeared for eighteen months. She has failed to provide a safe and stable home during this protracted period of time.

The uncontradicted expert testimony of Dr. Andrew Brown, the psychologist retained by DYFS, was that psychological testing of S.R. demonstrates that S.R.'s psychological makeup, which involves low frustration tolerance and lack of impulse control, manifests a considerable potential for her to destabilize and abuse her child by engaging in poor parental judgment if she is stressed, which could result in child endangerment. He also opined that S.R. was unable to provide a safe, permanent environment for A.R.D.R. Judge Cohen accepted Dr. Brown's findings, which were based not only on psychological testing but also on his interview with S.R.

S.R. asserts that by her present abstinence from drugs she has eliminated the harm to her child and is now fit to parent A.R.D.R. The facts, however, do not establish her current fitness to parent. As Dr. Brown opined, S.R. has no specific plan for safely raising her son. S.R.'s main concern is to stabilize her own life. Although she has been able to abstain from drug use for a period of fourteen months, it is still too early to determine whether she will be successful at long term rehabilitation as there is a potential for relapse. What is most important, however, is that she does not have an adequate means of support or appropriate housing for her son.

In re Guardianship of J.N.H., 172 N.J. 440 (2002), is an analogous case. In J.N.H., the mother had greater long term sobriety than S.R. has had, three years as opposed to fourteen months. Id. at 475. The mother had regained custody of her two older children, had steady employment, and was engaged to be married. Ibid. Nevertheless, the Supreme Court affirmed the trial court's conclusion that the child's need for permanency and his identification with his foster parents as a psychological family warranted termination of the parental rights of the mother, notwithstanding her present ability to be a good parent. Id. at 479.

Here, S.R. has not achieved the level of stability that the mother in J.N.H. had achieved. Dr. Brown opined that S.R. would need to accomplish three factors to be in a position to parent A.R.D.R.: (1) to abstain from drug use by consistently staying in an after-care program; (2) find a stable living arrangement; and (3) develop a source of income.

The second prong allows the court to consider whether a delay of permanent placement will add to the harm imposed by the parent. A.R.D.R. is now three years old. According to Dr. Brown, A.R.D.R. is psychologically bonded to T.T. and is not bonded to S.R. Therefore, severing the relationship between A.R.D.R. and T.T. would likely cause irreparable harm to A.R.D.R.

Defendant contends that a proper method of evaluating her parental fitness should be based on the limited supervised visitation sessions between herself and A.R.D.R. Despite the amicable relationship between S.R. and A.R.D.R. during these brief times, S.R. was not able to display any ability to actually provide parental care for her child. The Supreme Court in K.H.O., stated: "[a]lthough [mother] has visited her child and maintained a limited but positive relationship with her, [mother] has been consistently unable to take any responsibility for K.H.O.'s parental care." K.H.O., supra, 161 N.J. at 353.

In addition, defendant contends that the expert testimony of Dr. Brown was delivered in a manner to shed the most negative light on these proceedings. Defendant claims that Dr. Brown's conclusions were unsupported by concrete data. Specifically, defendant claims that Dr. Brown's assessment of the bonding relationship between S.R. and A.R.D.R. was completely contrary to the overwhelming evidence submitted through visitation reports. We disagree.

Dr. Brown performed a bonding evaluation between both A.R.D.R. and S.R. and A.R.D.R. and T.T. In his bonding assessment between A.R.D.R. and T.T. on September 9, 2004, Dr. Brown noted that A.R.D.R. and T.T. appeared very comfortable interacting with each other and they appeared to be very affectionate toward one another. Subsequently, a bonding evaluation between S.R. and A.R.D.R. was held. From that bonding evaluation, Dr. Brown noted that A.R.D.R. does display some familiarity with S.R., yet at the same time, he does not display behavior consistent with the impression that he is bonded to her and their interaction seemed coerced because A.R.D.R. did not initiate any affection or physical contact with S.R. Dr. Brown's testimony was corroborated by DYFS worker Carter, who testified that T.T. called the DYFS office, on more than one occasion, upset because when transportation arrived at her home to take A.R.D.R. to see S.R., A.R.D.R. would become upset and had a difficult time separating from her and getting into the car with a stranger.

The third element of the best interest standard involves the determination of whether DYFS has made reasonable efforts to assist the parent and whether the court has considered alternatives to termination. The trial court correctly determined that the division was not required to make reasonable efforts to reunite A.R.D.R. with his mother because N.J.S.A. 30:4C-15.1d exempts the requirement of reasonable efforts to reunite in cases where the rights of the parent to another of the parent's children had been involuntarily terminated. The judge properly held that the August 31, 2004 order relieving DYFS of reasonable efforts absolved DYFS of that obligation under the third prong of the best interests test.

Nevertheless, on November 1, 2004, the judge entered another order that provided, notwithstanding the exemption, that DYFS was to provide reasonable efforts to effect reunification. DYFS satisfied that order by providing regular visitation, encouraging the ongoing parent/child relationship, offering parenting classes and referrals to obtain housing. These services were rendered after S.R. finally came forward after the guardianship procedure had begun. Additionally, DYFS provided S.R. with a referral for drug assessment and drug screenings, as well as a psychological and bonding evaluations.

The fourth prong was also proved since the child has completely bonded with T.T. and, although A.R.D.R. recognizes and has familiarity with his mother, Dr. Brown opined that termination of his relationship with T.T. would cause psychological harm, while termination of parental rights would not do more harm than good.

Judge Cohen concluded that based on the record developed at trial,

I am compelled to conclude that there is clear and convincing evidence that the termination of parental rights of [A.R.D.R.] . . . is imperative in this case. Considering the importance of permanency and stability from the perspective of the child's needs, termination is appropriate. The statutory criteria delineated in [N.J.S.A. 30]:4C-15.1 has been satisfied, which is the best interests of the child mandate of parental rights . . . .

 
As a reviewing court, we are bound by the trial court's factfinding "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Here we are in agreement with the findings and conclusions of Judge Cohen, which are amply supported by the record. DYFS has proved by clear and convincing evidence that termination of the parental rights of S.R. is in the best interest of A.R.D.R.

Affirmed.

The parental rights of C.B., A.R.D.R.'s biological father, were also terminated. The court previously entered default against C.B., whose whereabouts are unknown, on November 1, 2005. C.B. did not appear at the guardianship trial. C.B. has not appealed.

(continued)

(continued)

11

A-4687-04T4

RECORD IMPOUNDED

February 21, 2006