NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5036-04T45036-04T4

A-5037-04T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.C.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF S.C.,

A Minor.

___________________________________

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

E.C.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF S.C.,

A Minor.

__________________________________

 
Submitted February 7, 2006 - Decided February 24, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FG-12-05-05.

Yvonne Smith Segars, Public Defender, attorney for appellant K.C., A-5036-04T4 (Bernado W. Henry, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant E.C., A-5037-04T4 (Alan I. Smith, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent on A-5036-04T4 and A-5037-04T4 (Patrick DeAlmeida, Assistant Attorney General, of counsel; Jo Astrid Glading, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for respondent minor child on A-5036-04T4 and A-5037-04T4 (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

These are the consolidated appeals by K.C., the mother, and E.C., the father, from a judgment of guardianship terminating their parental rights to their daughter, S.C., who was born on April 29, 2003.

K.C. argues on appeal that the Division of Youth and Family Services (DYFS or Division) failed to prove by clear and convincing evidence all four prongs of the best interests test. See N.J.S.A. 30:4C-15.1a. In particular, she argues:

POINT I

THE TRIAL COURT'S DETERMINATION OF THE ULTIMATE FINDINGS SHOULD BE REVIEWED DE NOVO AND THE TRIAL COURT'S DECISION TO TERMINATE PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE TRIAL COURT INCORRECTLY INTERPRETED THE STATUTORY REQUIREMENTS NECESSARY FOR TERMINATION OF PARENTAL RIGHTS.

A. THE TRIAL COURT INCORRECTLY DETERMINED THAT S.C.'s HEALTH AND DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY HER RELATIONSHIP WITH K.C. (Not Raised Below).

B. THE TRIAL COURT INCORRECTLY DETERMINED THAT K.C. IS UNABLE OR UNWILLING TO ELIMINATE THE HARM FACING S.C. AND UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR HER AND THAT A DELAY IN PERMANENT PLACEMENT WILL ADD TO THE HARM.

C. THE TRIAL COURT INCORRECTLY DETERMINED THAT THE DIVISION HAD MADE REASONABLE EFFORTS TO REUNIFY K.C. WITH S.C. AND THE COURT DID NOT CONSIDER ALTERNATIVE PERMANENT OPTIONS TO TERMINATION OF K.C.'s PARENTAL RIGHTS TO S.C. (Partially Raised Below).

D. THE TRIAL COURT INCORRECTLY DETERMINED THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

E.C. concedes that the Division presented sufficient proofs to establish the first prong of the best interests test with respect to him, but disputes that the proofs were sufficient to establish the remaining prongs. In particular, he argues:

POINT I

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE THE SECOND, THIRD, AND FOURTH PRONGS OF THE "BEST INTERESTS" TEST BY CLEAR AND CONVINCING EVIDENCE.

A. SINCE A DELAY IN PLACEMENT WOULD NOT HAVE ADDED TO THE HARM TO S.C., UNDER THE SECOND PRONG THE DEFENDANT WAS ABLE TO BECOME PARENTALLY FIT IN TIME TO MEET THE NEEDS OF S.C.

B. THE TRIAL COURT ABUSED ITS DISCRETION IN REJECTING KINSHIP LEGAL GUARDIANSHIP AS AN ALTERNATIVE TO TERMINATION OF PARENTAL RIGHTS UNDER THE THIRD PRONG.

C. TERMINATION OF PARENTAL RIGHTS WILL CAUSE MORE HARM THAN GOOD UNDER THE FOURTH PRONG BECAUSE THERE WERE NO COMPELLING REASONS TO SEVER THE DEFENDANT'S PARENTAL RIGHTS.

We have reviewed the record and we conclude that the trial judge's findings are well-supported by the evidence, Rule 2:11-3(e)(1)(A), and that the appeal arguments of both defendants lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Lawrence Lerner in his oral decision of May 9, 2005. We add these comments.

K.C. and E.C. are not married. Prior to S.C.'s birth, K.C. and E.C. regularly used substantial quantities of illegal drugs, including heroin and cocaine. K.C. received no prenatal care and used drugs during her pregnancy. When S.C. was born, she tested positive for cocaine, opiates, codeine and morphine. S.C. exhibited withdrawal symptoms and was required to remain hospitalized for about two months, until June 30, 2003.

During S.C.'s hospitalization, her parents visited her only sporadically and infrequently. When S.C. was ready for discharge, the parents acknowledged they were not able to take her. Both were using drugs, and they did not have suitable housing. The Division placed the children in a temporary foster home for several months. Then, on December 11, 2003, S.C. was placed in her current foster home with her paternal aunt and her husband, L.M. and M.M. Also residing in that home are two of S.C.'s siblings, A.C. and C.C. K.C. is the mother of both of those children, and E.C. is the father of one of them. The parental rights of the natural parents have been terminated in prior proceedings, and L.M. and M.M. intend to adopt A.C. and C.C. S.C. has continuously remained in that placement, and L.M. and M.M. wish to adopt her as well. Thus, S.C. has now been living in a household for two years and several months with her prospective adoptive family, which consists of her natural aunt and uncle, and her two biological sisters. L.M. and M.M. acquired a larger residence during the pendency of these proceedings in order to assure adequate space for their growing family.

S.C. has never lived with either of the defendants. Through the testimony of the Division's psychological expert, Dr. Karen Wells, it was established that S.C. is bonded to L.M. and M.M., and they are S.C.'s psychological parents. Defendants presented as a psychological expert Dr. David Bogacki. He did not, however, conduct a bonding evaluation between S.C. and her present caregivers. Accordingly, he could not refute Wells' assessment and was not surprised by it. In Wells' opinion, removal of S.C. from her foster parents would cause her enduring emotional harm, and her removal from her sisters would add to that harm. Bogacki conceded that S.C. would not suffer from any enduring harm if her parental rights to her natural parents were severed.

Wells concluded that although S.C. knew that K.C. and E.C. were her natural parents and related to them as such, she did not relate to them as parent figures. S.C. seemed reasonably comfortable in the presence of her mother, but somewhat uncomfortable in the presence of her father. In Wells' opinion, S.C. did not view either of her natural parents as a psychological parent. Bogacki acknowledged that there was not a secure emotional attachment between S.C. and either of her natural parents.

The underlying problem of both parents, resulting in their inability to care for S.C., derives primarily from their drug addiction, and accompanying unstable living arrangements and employment. Soon after S.C.'s birth, DYFS commenced efforts with both parents geared toward reunification with their child. The Division informed the parents they would need to undergo a psychological evaluation, enter drug treatment, and complete a parenting skills program. We need not describe the details, but we are satisfied from our review of the record that both parents were slow to respond to these requirements.

Eventually, they did comply, and by the time of the trial in late April 2005, they had completed inpatient drug treatment programs, but required extensive after-care. In K.C.'s case, for example, the after-care program was essential in light of her ten-year history of daily heroin use. For both parties, it was essential that they remain drug-free and be monitored regularly in an unstructured environment for an extended period of time before their sobriety could be reasonably assured and their recovery from drug addiction be deemed sufficiently established. A condition of K.C.'s after-care, for example, required daily attendance for ninety days at AA/NA meetings.

In Bogacki's opinion, a six-month after-care period would be sufficient, although it would require constant monitoring throughout that period. If the parties remained sober for that time, he felt they would then be capable of parenting S.C. In Wells' opinion, a nine-month period was required. The judge found Wells' opinion more persuasive. Notably, also, although K.C. had completed her inpatient program about a month earlier, at the time of the judge's decision, she had still not entered the after-care program.

During the entire pendency of this matter, the Division made arrangements for visitation, including transportation. Both parents, however, failed to avail themselves of the opportunity to any significant extent. Visitation was very infrequent. In the opinion of both psychologists, very frequent visitation would be required if defendants were to ultimately assume a parental role for S.C. Wells opined that daily visitation would be optimum, and at least three times a week would be the bare minimum required. In light of the prior history of very infrequent visitation, it was unlikely that such a drastic turnaround would occur in the future.

S.C. has lived with her foster family, including her two sisters, since she was seven months old. It is the only family she has ever known. With the passage of an additional nine months (or even six months) from the time of trial, S.C. would be bonded that much more closely to her foster parents and sisters. Of course, removing her at that time would be even more detrimental to her.

About two weeks prior to trial, K.C. and E.C. obtained an apartment. However, the lease was only in E.C.'s name, and the parties have not lived together for about two years. Thus, there was no demonstration of stable living arrangements. Like the hoped-for continued progress in drug recovery, stability in living arrangements, as well as employment, would have to await future evaluation.

At the three-day trial, in addition to Wells and Bogacki, a DYFS case worker, Ipoma Nwizugeo, testified, as did E.C. and K.C. The judge also received in evidence voluminous documents. Based upon his review of the documentary evidence and his consideration of the testimony, including his credibility assessments, the judge found that the Division proved by clear and convincing evidence all four prongs of the best interests test and ordered termination.

"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Moreover, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986) (quoting Santosky v. Kramer, 455 U.S. 745, 787, 102 S. Ct. 1388, 1412, 71 L. Ed. 2d 599, 628 (1982)). Accordingly, courts have consistently imposed strict standards regarding the termination of parental rights. K.H.O., supra, 161 N.J. at 347. However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. This is because the State, as parens patriae, has a responsibility to protect the welfare of children. K.H.O., supra, 161 N.J. at 347.

The standard for determining the termination of parental rights is known as the best interests of the child test, originally set forth in A.W. and now codified in N.J.S.A. 30:4C-15.1a, which authorizes termination if the Division can show:

(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.]

DYFS has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R., 155 N.J. Super. 186, 193 (App. Div. 1977). Moreover, the four criteria "overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

In K.H.O., the Court held that where there is evidence that a bond with a foster parent is strong and that a bond with a natural parent, by comparison, is not as strong, the fourth prong of the best interest standard will be satisfied. Id. at 363. New Jersey has a strong public policy favoring permanency. Id. at 357. In all guardianship and adoption cases, the child's need for permanency and stability must be accorded primary status. Id. at 357-58.

As we stated, E.C. does not challenge proof of the first prong as to him. Judge Lerner found that prong established as to K.C. as well, because she continued to use drugs while pregnant, allowed the child to be born drug-exposed, and did not have the ability to take the child home when she was ready to be discharged from the hospital.

The judge found that both parents demonstrated a willingness to eliminate the harm by addressing their substance abuse problems and establishing a proposed home in which S.C. would live with them. The judge remarked that if that was all that was required under the second prong he would not terminate defendants' parental rights. However, he noted the additional provisions under the second prong that "the delay of permanent placement will add to the harm," and that "[s]uch 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." See N.J.S.A. 30:4C-15.1a(2).

The judge then analyzed the evidence, including the opinions of both experts, regarding the long delay in achieving permanency, the additional delay that would be necessitated for even the possibility that defendants could be capable of parenting S.C., the cause of the delay and the effect on the child. He concluded that "[t]his delay, four months in the hospital plus 20 months of rehab were all necessitated by the nature of the defective behavior of both parents and the length for the recovery necessitated by that factor, the extent of substance abuse use." The judge then noted his finding of an additional nine months recovery time and noted also K.C.'s "failure to attend her group sessions, have a sponsor as negative factors that may or may not effectuate her eventual rehabilitation time." The judge then stated:

It is clear that based on the un -- uncontradicted testimony of Dr. Wells that [S.C.] would suffer enduring emotional harm if -- if separated from her psychological parents, particularly Mrs. [M]. That delay in reunification was caused by a delay in entering into the rehabilitation by the birth parents coupled with the length of time necessary for rehabilitation because of the severity of the substance abuse, that it was due to the parents' actions, therefore, the delay in the placement to [E.C.] and [K.C.] will only add to the harm, the psychological bonding with the [Ms] plus two other siblings to [S.C.] and adding to a psychological trauma if removed from that home, the safe and stable home, the only home available to [S.C.] after released from the hospital into foster care.

The [Ms'] home is actually her third home, being placed in December of 2003. As a practical matter, the child has little opportunity to bond prior to four months because of the inability to recognize caregivers. The first placement for her was not successful and clearly, the [Ms] only offered as a preventive measure so [S.C.] would not go to a nonfamily member. They are now adopting [A.C.] and [C.C.]. Two -- the three sisters are essentially bonded together as Mrs. [M] told Dr. Wells that she has the two older girls in counseling to deal with the issue of [S.C.] perhaps being treated differently than [A.C.] and [C.C.].

I can only conclude that it is in [S.C.'s] best interests to remain where she is as to preclude her psychological injury. She is still showing signs of autism as well as motor deficiencies. Whatever the case, it is not in her best interest to be psychologically injured, to suffer enduring and not curable emotional harm as testified to by Dr. Wells. Please rest assured that again, I find that Dr. Bogacki and Dr. Wells and I all like [E.C.] and [K.C.]. But the second prong has [been] proved by clear and uncontradi[c]tory and convincing evidence.

The judge then found that "DYFS made reasonable efforts to provide services. They eventually were accepted and may very well be successful. However, the delay in completion of rehabilitation is the overriding factor . . . ."

Finally, the judge found the fourth prong satisfied, noting that a child "is entitled to a safe, stable home environment so the child can develop a secure psychological foundation." Further, "[p]arents cannot take so long at rehabilitation that the removal from the infant['s] foster parents would result in a severe psychological and enduring emotional harm to be suffered by the child." It was clear to the judge that removing S.C. from her present caregivers would cause serious and enduring harm. Thus, the judge concluded that termination would not do more harm than good.

As part of their appeal arguments with respect to the third prong, defendants complain that the Division failed to prove that it "considered alternatives to termination of parental rights," namely kinship legal guardianship. Although the judge did not make an explicit finding on this point, which was not argued by either defendant in summation, the judge implicitly accepted the Attorney General's summation argument that kinship legal guardianship was not appropriate in this case. We agree.

The Legislature has established kinship legal guardianship as an appropriate alternative in cases "where adoption is neither feasible nor likely," N.J.S.A. 3B:12A-1c, which must be clearly and convincingly proven as a prerequisite to implementing that alternative. N.J.S.A. 3B:12A-6d(3)(b). That is not the case here. L.M. and M.M. have clearly expressed their desire and intention to adopt S.C. The judge did not err in failing to adopt the kinship legal guardianship alternative in the circumstances of this case. See NJ Div. of Youth & Family Servs. v. P.P., 180 N.J. 494 (2004).

The findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, because of the particularized expertise of Family Court judges in family matters, we accord enhanced deference to Family Court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998). From our review of the record, we are satisfied that the record supports the judge's findings that the Division established by clear and convincing evidence all four prongs of the best interests test. We will not disturb those findings on appeal. The judge properly applied the correct principles of law to his factual findings, and we find no error in the result he reached.

 
Affirmed.

(continued)

(continued)

2

A-5036-04T4

RECORD IMPOUNDED

February 24, 2006