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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0755-06T40755-06T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff- Respondent,

v.

J.S.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF

K.P. and C.P.,

Minors.

________________________________________________________________

 

Submitted March 14, 2007 - Decided March 27, 2007

Before Judges Wefing and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-26-06.

Yvonne Smith Segars, Public Defender, attorney for appellant J.S. (Mark Tabakman, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Lisa B. Landsman, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors K.P. and C.P. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

J.S. is the biological mother of two sons, K.P., born December 12, 1991, and C.P., born October 1, 1994. On July 22, 2004, the Division of Youth and Family Services (D.Y.F.S.) received a referral from J.S.'s sister-in-law who claimed the children had been abandoned. Upon further investigation, the D.Y.F.S. social worker determined that J.S. had left the two boys alone at home while she accompanied her live-in paramour, J.L.S., to New Hampshire. Although the trip was supposed to be only two weeks, J.S. was gone more than a month. The boys' aunt and uncle, J.S.'s brother, who were supposed to look after the children, took the boys into their home and K.P. and C.P. were living there for several weeks with virtually no contact with their mother.

When interviewed, both boys recounted the details of their daily life at home with J.S. and J.L.S. They were responsible for all household chores, including laundry, cooking, cleaning, caring for the dog, and themselves. The boys also told the D.Y.F.S. worker that J.L.S. used drugs, would physically abuse them and that the couple would leave the boys alone at home for days at a time. The boys indicated J.S. and J.L.S. intended to relocate to New Hampshire, and, while they loved their mother, they did not want to move.

On July 26, the Family Part judge entered an order granting D.Y.F.S. temporary care, custody and control of K.P. and C.P. During the month of August, D.Y.F.S.'s telephonic attempts to contact J.S. were futile. Her sister-in-law told the caseworker that J.S. had abandoned the home and was still traveling with J.L.S. However, in September, J.L.S. contacted the D.Y.F.S. caseworker, threatened her, and complained about D.Y.F.S.'s actions. Although the record is not entirely clear, J.S. apparently returned to her home sometime in October, 2004.

On November 3, D.Y.F.S. made an unannounced visit to J.S.'s home to serve her with the court orders already entered in the case. She was present, and the caseworker noted the residence was dirty, unkempt, and smelled of urine. Explaining her abandonment of her children, J.S. indicated she could not return to New Jersey initially because J.L.S. had all the money and the car keys while they were on the road, and he threatened her with physical violence if she tried to return. She told the D.Y.F.S. worker that J.L.S. remained in Massachusetts and was not returning to New Jersey because of an outstanding parole warrant.

D.Y.F.S. referred J.S. for substance abuse evaluation. Although she missed her first appointment, J.S. regularly attended counseling thereafter. She told the staff that her drug use had been limited to a three-month period while she lived with J.L.S. and was the victim of his acts of domestic violence. She acknowledged cocaine abuse during this time. During the next few months, J.S.'s drug screens were negative. In February, 2005, court-ordered supervised visitation between J.S. and the boys began.

Meanwhile, K.P. and C.P. had moved to their maternal grandparents' home and were living there. Both boys seemed to be thriving in school and were actively participating in therapeutic counseling provided by D.Y.F.S. The grandparents expressed a willingness to have the boys reside with them on a long-term basis and to adopt them, and D.Y.F.S. evaluated the home and found it to be acceptable.

The supervised visitation, however, proved to be problematic. J.S. missed some of the therapeutic sessions with her children. The boys' grandparents and their teachers noticed that K.P. and C.P. would be angry and "act out" after visiting with their mother. D.Y.F.S. proposed that defendant's parental rights be terminated, and that the grandparents be allowed to adopt K.P. and C.P.

The termination trial commenced on June 1, 2006. Dr. Robert J. Puglia, a licensed clinical psychologist, who had evaluated J.S. on two prior occasions, testified. Puglia opined that J.S. evidenced compulsive, narcissistic, and histrionic personality patterns and she reported feeling very stressed, anxious, and depressed. J.S. had not established housing that was adequate for reunification purposes and was living with a roommate with whom she was having "significant problems." While noting that J.S. had participated in all of the recommended counseling programs, Puglia testified J.S. indicated to him that she was not ready to take the boys back. He noted defendant herself was not opposed to her father adopting the children.

A.S., J.S.'s father, testified about their tumultuous relationship over the years. A.S. went to the home in July 2004 to retrieve some of K.P.'s and C.P.'s belongings after J.S. left them alone. He found the apartment disheveled, with pet droppings on the floors, and no food in the entire house except for a bottle of ketchup. He found a blowtorch and drug paraphernalia on a table in the bedroom. A.S. also recounted the boys' tales of abuse at the hands of J.L.S., and described how the boys lacked social skills, eating with their hands and not utensils.

A.S. also testified that J.S. frequently cancelled visitations with her children, blaming her work schedule or medical problems. He indicated that he wished to adopt K.P. and C.P. and was willing to provide a stable home for them with liberal visitation by J.S.

Dr. David Bogacki, a licensed psychologist, was called as a defense witness. He evaluated J.S. and concluded that she was in sustained remission from her prior substance abuse. Bogacki opined that J.S. suffered from schizoid, antisocial and borderline personality traits. He admitted that there was a risk in allowing her to have custody of the boys, but he believed J.S. posed no imminent danger to the children. He concluded the "evidence is mixed" with respect to J.S.'s ability to be a suitable parent because, although she made poor personal choices in the past, and subjected the children to very bad conditions, she suffered from no mental disease or defect, had availed herself of services provided by D.Y.F.S. and was actively improving.

The trial continued on July 20 with the testimony of Dr. William Coffey, a psychologist, who testified about the bonding evaluations he conducted with J.S. and the two boys. He noted the boys evidenced weak affection for their mother, and he diagnosed both as having post-traumatic stress disorder occasioned by the "egregious acts of abuse and neglect" to which they were subjected. He noted that the boys had a sense of safety and stability with their grandparents, and removal from their care would be "more detrimental" than terminating J.S.'s parental rights.

Dr. Bogacki testified again, for the defendant, and summarized the bonding evaluation he had conducted on her behalf. Bogacki noted that both boys indicated a preference for residing with their grandparents, although they both wished to have visitation with their mother. Although he did not agree that the boys suffered from post-traumatic stress disorder, he did note that they suffered from adjustment disorder. He found the boys had greatly improved since living with their grandparents and that "permanency" was the key to their treatment and continued well-being.

J.S. testified. She acknowledged her past problems and blamed her relationship with J.L.S. for most of them. She indicated that she was now working, and that she was opposed to the adoption of K.P. and C.P. because she believed her father, A.S., would not allow her to see the children in the future.

On September 5, the trial judge rendered her decision in an oral opinion and entered an order terminating J.S.'s parental rights as to K.P. and C.P. Defendant raises two points in this appeal from that order.

POINT ONE

THE TRIAL COURT ERRED IN RULING THAT DEFENDANT'S PARENTAL RIGHTS SHOULD BE TERMINATED AS THE STATE FAILED TO PROVE, BY THE REQUIRED CLEAR AND CONVINCING EVIDENCE, THAT TERMINATION OF THE PARENTAL RIGHTS WAS APPROPRIATE.

POINT TWO

THE TRIAL COURT ERRED IN NOT RULING THAT KINSHIP LEGAL GUARDIANSHIP WAS APPROPRIATE AND ALSO ERRED IN NOT ADDRESSING THIS ISSUE AT ALL, AS IT WAS RAISED BY THE DEFENDANT DURING THE PROCEEDING.

We have carefully considered the record in light of applicable legal standards. We affirm.

In reviewing the factual findings and conclusions of a trial judge, the appellate court is "obliged to accord deference to the trial court's credibility determination and the judge's 'feel of the case' based upon his or her opportunity to see and hear the witnesses." Div. of Youth and Family Services v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13, (1998)). We will not disturb the judge's findings of fact unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare, supra, at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, (1974)). The conclusions that logically flow from those findings of fact "are, likewise, entitled to deferential consideration" during our review. R.L., supra, 388 N.J. Super. at 89.

However, no such deference is extended to the trial court's interpretation of issues of law. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Ibid. (quoting Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, (1995)).

In Div. of Youth and Family Services v. A.W., 103 N.J. 591 (1986), our Supreme Court described the singularly unique burdens placed upon the trial judge weighing whether or not to terminate the rights of a parent.

Termination of parental rights presents the legal system with an almost insoluble dilemma. On the one hand, we emphasize the inviolability of the family unit, noting that "[t]he rights to conceive and to raise one's children have been deemed 'essential,' . . . 'basic civil rights of man,' . . . and '[r]ights far more precious . . . than property rights' . . . ." Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (citations omitted). The interests of parents in this relationship have thus been deemed fundamental and are constitutionally protected. On the other hand, it has been recognized "that a state 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) Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972).

[Id. at 599.]

Ultimately, however, the parents' interests must yield when "the child's best interest will be substantially prejudiced" if parental rights are not terminated. Id. at 603 (quoting In Re Guardianship of Cope, 106 N.J. Super. 336, 340-41 (App. Div. 1969).

The statutory standards contained in N.J.S.A. 30:4C-15.1(a) guide the court's decision as to what is in the child's best interest. In Re K.H.O., 161 N.J. 337, 348 (1999). Those standards are:

(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).]

D.Y.F.S. must prove each of the statutory prongs by clear and convincing evidence before the court can terminate parental rights. K.H.O., supra, 161 N.J. at 348. "The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid. Ultimately, in parental rights termination cases, "parental fitness is the key to determining the best interests of the child." In Re Guardianship of J.N.H., 172 N.J. 440, 471 (2002) (quoting In re Guardianship of B.L.A., 332 N.J. Super. 392, 402 (Ch. Div. 2000)). With these general principles in mind, we turn to the arguments raised by defendant in this appeal.

Defendant contends that the judge "painted [] defendant with the same brush" as J.L.S. and attributed the harm that he visited upon the two boys to her. We disagree. The court found that J.S. failed to adequately prevent physical and psychological harm to K.P. and C.P. Despite defendant's claims of not knowing J.L.S. was abusive to the boys, the judge found she would "have to be deaf, dumb and blind to live in a house under those circumstances and not be aware of what [was] happening to [her] children." Inaction on the part of the biological parent in the face of physical or psychological harm to the children can constitute sufficient harm under the first prong of the statutory scheme. In Re Guardianship of K.L.F., 129 N.J. 32, 44 (1992).

With respect to the second prong, defendant contends that the trial judge failed to adequately assess her participation in various counseling efforts, her employment, and other positive changes in her life, instead focusing on the initial abandonment of K.P. and C.P. in the summer of 2004. We disagree.

The second statutory prong relates to parental unfitness. To satisfy the second prong the state must show that "the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm." K.H.O., supra, 161 N.J. at 348. Alternatively, "if there is clear and convincing evidence that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of her bond with foster parents, this will satisfy N.J.S.A. 30:4C-15.1(a)(2)." Id. at 363. "[T]he two components of the harm requirement, N.J.S.A. 30:4C-15.1(a)(1) and (2) are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." In Re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

Here, while recognizing J.S.'s participation in D.Y.F.S.'s services, the trial judge concluded that J.S.'s actions since the proceedings commenced evidenced her unwillingness or her inability to eliminate harm to the children. The judge noted that J.S. was completely uninvolved with the progress the children were making at school and failed to aggressively pursue her visitation rights. She was ambivalent about her desire to reunify with the two boys, and "[did not] know the needs of her children." The judge contrasted this with the stability provided by the grandparents' home and the progress the boys had made since living there.

Defendant contends that D.Y.F.S. failed to provide her with adequate services and, hence, failed to make reasonable efforts under the third statutory prong. J.S. argues that D.Y.F.S. had an "agenda" to terminate her rights and allow the children to be adopted by her father. In this regard, the judge did not find that D.Y.F.S. failed to provide adequate services; rather, she concluded that defendant, although taking advantage of the services provided, still lacked the desire to be reunited with her children and the ability to provide a stable home. She did not find any "agenda" on the part of the agency to predetermine adoption by the grandparents.

Lastly, defendant contends D.Y.F.S. failed to meet its burden of proof as to the fourth statutory prong, and that the court chose "expediency over the best interests of the children." Once again, we disagree.

The fourth prong requires the court to look at the child's relationship with both the biological and foster parents. In order to sustain its burden, D.Y.F.S. is not "require[d] [to] show[] that no harm will befall the child as a result of the severing of biological ties." K.H.O., supra, 161 N.J. at 355. The question the court must answer is whether, "after considering and balancing the two relationships, the child[ren] suffer a greater harm from the termination of ties with [their] natural parents than from the permanent disruption of [their] relationship with the foster parents." Ibid.

Here, the abundant evidence demonstrated that the children were thriving in the custody of their grandparents and had developed significant bonds with them. Despite the passage of nearly two years since their abandonment, and all of the efforts during that time, the relationship they maintained with their mother was a tenuous one.

In sum, we conclude that trial judge adequately considered the evidence and the applicable legal standards. We see no basis to overturn the decision she reached terminating J.S.'s parental rights with respect to K.P. and C.P..

Defendant's second point requires only brief comment. She contends that D.Y.F.S. and the court failed to consider kinship legal guardianship as an alternative arrangement. While the trial judge did not expressly address the issue, we note that the statutory requirements for kinship legal guardianship require a finding that "adoption of the child is neither feasible nor likely." N.J.S.A. 3B:12A-6(d)(3)(b). Here, the grandparents of K.P. and C.P. wished to adopt them and had demonstrated that they were suitable candidates. Therefore, the statutory requirements were not met.

Affirmed.

 

(continued)

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15

A-0755-06T4

RECORD IMPOUNDED

March 27, 2007