DYFS v. V.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0406-06t45692-05T4

A-0406-06T4

DIVISION OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.A.,

Defendant-Appellant.

______________

DIVISION OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

V.H.,

Defendant-Appellant.

_______________

IN THE MATTER OF THE GUARDIANSHIP OF

A.L.H. and A.K.H.

_______________________________________

 

Submitted May 1, 2007 - Decided

Before Judges Weissbard and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-19-06.

Yvonne Smith Segars, Public Defender, attorney for appellant M.A. (Mary Potter, Designated Counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant V.H. (Michele C. Buckley, Designated Counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eleanor Armstrong, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for A.L.K. and A.K.H., minors (Christopher G. Jackson, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

These consolidated appeals are filed by V.H., the mother, and M.A., the father, who are the parents of two young children: A.L.H., born on May 18, 2004, and her sister, A.K.H., born on May 30, 2005. Defendants challenge the Family Part judgment terminating each parent's parental rights and awarding guardianship of A.L.H. and A.K.H. to the Division of Youth and Family Services (DYFS or Division) for purposes of consenting to adoption.

On appeal, V.H. presents the following arguments for our consideration:

THE ORDER FOR GUARDIANSHIP, WHICH TERMINATED DEFENDANT'S PARENTAL RIGHTS, MUST BE REVERSED SINCE THE DIVISION DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE EACH OF THE NECESSARY ELEMENTS TO JUSTIFY TERMINATION.

1. The Court was not presented with sufficient evidence to conclude that the child's health and development have been or will be seriously impaired by the parental relationship and that V.H. is unable or unwilling to eliminate the harm to her children and delaying permanent placement will add to the harm.

2. DYFS did not prove by clear and convincing evidence that it had made reasonable efforts to reunite V.H. with her children.

3. No evidence was presented to show that the termination of V.H.'s parental rights would not do more harm than good.

In addition, M.A. presents the following issues:

DYFS FAILED TO ESTABLISH THAT IT IS NECESSARY TO TERMINATE M.A.'S PARENTAL RIGHTS IN ORDER TO PROTECT HIS DAUGHTERS['] BEST INTERESTS, RATHER, HE ESTABLISHED THAT IT WOULD BE IN THEIR BEST INTERESTS TO BE PLACED WITH HIM.

A. The children's safety, health and welfare have not been endangered by their relationship with their father, nor will the continuation of the relationship endanger them.

B. M.A. is willing and able to eliminate the harm facing his daughters and is able and willing to provide a safe and stable home for them.

C. DYFS failed to make reasonable efforts to provide services to help M.A. correct the circumstances which led to his daughters' placement outside the home and the trial court failed to adequately consider alternatives to termination of parental rights.

D. Termination will do more harm than good.

Our Legislature has recognized the importance of strengthening and preserving the integrity of family life, but it has also recognized that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). The best interest standard, initially formulated by the Court in N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified in N.J.S.A. 30:4C-15.1(a), requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:

(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-15.1(a).]

These requirements are not discrete; they overlap to provide a composite picture of what may be necessary to advance the best interests of the children. The considerations involved in determining parental fitness are extremely fact sensitive and require particularized evidence that addresses the specific circumstances present in each case. In re Guardianship of K.H.O., 161 N.J. 337, 346-48 (1999).

At trial, V.H. did not testify. M.A. testified on his own behalf, but presented no experts. DYFS presented the testimony of its case workers and expert, Andrew Brown, III, Ph.D. Without objection, the Division entered as evidence the prior psychological evaluations of each parent and its case file.

The Division's involvement with V.H. began in 1994, after her first child tested positive for drugs at birth. Throughout the litigation, V.H.'s drug dependence remained unresolved. V.H. also suffers from mental health issues and was noncompliant with counseling. The Division's past efforts to assistance V.H. in drug rehabilitation proved futile, as V.H. did not fulfill her rehabilitation responsibilities.

Conceding that her drug dependence harmed her children, V.H. argued that DYFS did not aid in her achievement of remediation of the harm posed by her drug use because it did not place V.H. in an in-patient drug rehabilitation program with coincident mental health counseling, despite her stated willingness to enroll. Because an adequate program was not located, she maintains the Division failed to extend appropriate services to her for achievement of reunification. And, finally, she asserts that an insufficient bond exists with her daughters' current caregivers to reach the conclusion that termination would not do more harm than good.

Prior to trial, M.A. had supported reunification of the children with V.H. It was clear he never assumed a primary parenting role in the children's lives. At trial, although he sought custody, he had not developed a specific plan for the children's care were custody awarded to him. M.A. successfully overcame drug dependence, regularly attended visitation with the children, and completed parenting skills classes. However, one obstacle stemming from his criminal history remained unresolved. M.A. had past convictions for distribution of CDS, possession of drug paraphernalia, burglary and a sexual assault, resulting in a Tier II Megan's law, N.J.S.A. 2C:7-1 to -19, classification. Although he attended sex offender counseling services extended by DYFS, no estimated completion date could be formulated that would enable him to overcome the statutory presumption against custody, set forth in N.J.S.A. 9:2-4.1a.

M.A. acknowledged he intended to rely on the assistance of his mother, with whom he resided, to care for the children. Evidence revealed M.A.'s mother had declined the Division's request that she become the children's caretaker. M.A. testified he was comfortable in his mother's home and proposed his family would assist in the support and care of the children, but if required by the court, given more time, he could independently care for his daughters.

The trial court considered the expert testimony of Dr. Brown, who, after the completion of psychometric testing and clinical interviews, offered his opinion that neither parent was fit to care for their two young daughters. Dr. Brown concluded V.H.'s chronic drug dependence and her unaddressed psychological instability manifested a significant risk, endangering the children's welfare, and made her unable to function in any parental capacity. Overwhelming evidence supported that there was no specific time-frame or proposal posited to show when and whether V.H. would be able to resume a parenting role for A.L.H. and A.K.H.

Addressing his evaluation of M.A., Dr. Brown concluded M.A. was not prepared to assume the day-to-day responsibilities necessary for the care of the children, without his family's support. He lacked insight as to past poor judgments, such as his historical enabling of drug addicted paramours and his commission of a sex offense, which he did not reveal to Dr. Brown. Dr. Brown stated that this trait would result in an unsafe and unstable situation for the children and he opined that permanency for the children would best be achieved if parental rights were terminated.

The scope of our review is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. After reviewing the record and applicable law in light of the contentions advanced on appeal, we conclude that the trial court's findings are supported by substantial credible evidence, and its conclusions predicated on those findings are legally sound. The overarching need for permanence for these two young children overcomes any parental suggestion that more time would result in V.H.'s or M.A.'s successful achievement of a plan for their daughters' safety and security. "Keeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law." N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001) (quoting In re P.S., 315 N.J. Super. 91, 121 (App. Div. 1998)).

We therefore affirm the conclusion to terminate V.H.'s and M.A.'s parental rights, substantially for the reasons stated by Judge Grant in his thorough and thoughtful thirty-five page written decision dated June 15, 2006.

Affirmed.

 

(continued)

(continued)

4

A5692-05T4

RECORD IMPOUNDED

May 18, 2007