DIVISION OF YOUTH AND FAMILY SERVICES v. L.E.E., JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1087-06T41087-06T4

A-3989-06T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

L.E.E., JR.

Defendant-Appellant.

_____________________________

IN THE MATTER OF THE

GUARDIANSHIP OF A.R.B.,

a minor.

__________________________________________________________

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

L.A.B.,

Defendant-Appellant.

_____________________________

IN THE MATTER OF THE

GUARDIANSHIP OF A.R.B.,

a minor.

____________________________________________________________

 

Submitted December 3, 2007 - Decided

Before Judges Parrillo, Graves and Alvarez.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Union County,

Docket No. FG-20-25-05.

Yvonne Smith Segars, Public Defender, attorney

for appellant L.E.E., Jr. (William J. Sweeney,

Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney

for appellant L.A.B. (Philip Lago, Designated

Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for

respondent (Andrea M. Silkowitz, Assistant

Attorney General, of counsel; Ann Avram Huber,

Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian for A.R.B., a minor (Patricia A.

Dulinski, Designated Counsel, on the brief).

PER CURIAM

In these consolidated appeals, defendant L.E.E. is the father, and defendant L.A.B. is the mother of A.R.B. (fictitiously, Andrea), who was born on October 15, 1999. Defendants appeal from a judgment of guardianship terminating their parental rights and awarding guardianship of their daughter to the Division of Youth and Family Services (DYFS or the Division) for purposes of consenting to adoption.

On appeal, L.E.E. presents the following arguments:

POINT I

SUBSTANTIAL CREDIBLE EVIDENCE DID NOT EXIST SUPPORTING THE COURT'S FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

(A) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILD WERE AND WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

(B) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT A FINDING THAT THE APPELLANT WAS UNWILLING OR WAS UNABLE TO ELIMINATE THE HARM FACING THE CHILD.

(C) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO L.E.E., JR.

(D) THE COURT'S FINDINGS THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

POINT II

THE TRIAL JUDGE'S CONDUCT DENIED APPELLANT A FAIR TRIAL IN CONTRAVENTION OF THE DUE PROCESS CLAUSES OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

On appeal, L.A.B. presents the following arguments:

POINT I

THE JUDGMENT OF GUARDIANSHIP, WHICH TERMINATED DEFENDANT'S PARENTAL RIGHTS, MUST BE REVERSED BECAUSE DYFS DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE EACH OF THE FOUR NECESSARY PRONGS TO JUSTIFY TERMINATION OF DEFENDANT'S PARENTAL RIGHTS.

(1) THE CHILD'S HEALTH AND DEVELOPMENT HAVE BEEN OR WILL BE SERIOUSLY IMPAIRED BY THE PARENTAL RELATIONSHIP.

(2) THE PARENTS ARE UNABLE OR UNWILLING TO ELIMINATE THE HARM AND DELAYING PERMANENT PLACEMENT WILL ADD TO THE HARM.

(3) REASONABLE EFFORTS BY DYFS.

(4) THE TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

POINT II

THE JUDGMENT MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL. [Not presented below].

POINT III

THE JUDGMENT MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL. [Not presented below].

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. We therefore affirm the judgment terminating defendants' parental rights substantially for the reasons stated by Judge Spatola, with only the following comments.

"When the child's biological parents resist the termination of their parental rights, the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm. [N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986)]. The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents. The burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child. [Santosky v. Kramer, 455 U.S. 745, 768, 102 S. Ct. 1388, 1402, 71 L. Ed. 2d 599, 616-617 (1982)].

[Ibid.]

While recognizing the fundamental nature of parental rights, and the need to preserve and strengthen family life, our Legislature has declared 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 balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). This standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, 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 four requirements "relate to and 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. "The considerations involved . . . are extremely fact sensitive and require particularized evidence that address the specific circumstances in the given case." Ibid. (internal quotations omitted).

On January 24, 2003, after concluding that Andrea and her two older brothers, X.B., born May 10, 1993, and S.B., born July 4, 1994, "were at great risk of harm," DYFS took emergency legal and physical custody of the three children pursuant to N.J.S.A. 9:6-8.29, and removed them from their home. In its verified complaint for protective services, DYFS indicated that its initial contact with the family was on April 7, 1998, when it "assessed that child welfare issues existed and that [L.A.B.] was limited and unable to make decisions regarding her children without assistance." DYFS also alleged that it was necessary to remove the children from their home because L.A.B. was unable to protect the children from their father. The emergency removal of the children from their home was approved by the court on January 27, 2003.

On September 7, 2004, DYFS filed a complaint for guardianship of Andrea, which was subsequently amended to include Andrea's two older brothers. However, on the first day of trial, the court approved a permanency plan for Andrea's brothers and the Division elected not to pursue its claim for termination of parental rights of the two older children. Thus, the trial, which took place on various dates between March 20, 2006, and September 11, 2006, involved only Andrea.

In a comprehensive oral decision on September 11, 2006, the trial court reviewed all of the relevant evidence, and it carefully considered the expert testimony provided by three psychologists: Dr. Leslie Williams testified for DYFS, Dr. Susan Skolnick testified for the father, L.E.E., and Dr. Antonio Burr testified for the mother, L.A.B. The court noted that Dr. Williams had evaluated the parents on more than one occasion, and it resolved the conflicting expert testimony in favor of DYFS:

Dr. Williams concluded, after considering test results as well as his interview and observations of [L.E.E.], that he is "an egocentric individual, who appears to have very strong narcissistic traits and focuses the world around himself and his needs." Also, he blames others, paints himself as the victim, and "voiced no regrets whatsoever for any of his actions and demonstrated no comprehension for how his behavior has impacted on the lives of his children."

Additionally, just as when four months later he was interviewed by Dr. Skolnick, . . . [L.E.E.] did not want his children returned to him right then. He told both psychologists he would like Doris Conte to take them until he was ready to have them and after they have had therapy. . . .

Of significance, Dr. Williams testified that [L.E.E.] "does not recognize anyone else's needs," also that he believes "he knows what is best." Further, that [L.E.E.] has "a history of aggressive, violent behavior and little insight into this." Dr. Williams said [L.E.E.'s] prognosis is poor.

. . . .

Dr. Williams testified that the prognosis is poor. [L.E.E.] . . . views women as second-class citizens and as not as capable as men. . . . Therefore, Dr. Williams concluded that [Andrea] would be at risk of being demeaned and belittled in [L.E.E.'s] care. He noted that [L.E.E.'s] substance abuse could cloud his judgment and make him more impulsive.

Dr. Williams'[s] observations and conclusions have greater weight and validity than those of Dr. Skolnick with regard to [L.E.E.] Dr. Williams had a chance to view [L.E.E.] over the course of two interviews separated by 11 months. His opinion was consistent with the history of this case. Dr. Skolnick was biased in [L.E.E.'s] favor and with virtually no basis in reality for her sunny predictions of successful reunification.

. . . .

Dr. Leslie Williams first evaluated [L.A.B.] on February 1st, 2005. At that time, Dr. Williams said of [L.A.B.], as a result of her Milan Clinical Multiaxial Inventory-III testing, that she may become overwhelmed when subjected to even minor pressure. He found her to be cognitively limited, extremely passive, and dependent. He noted that she feels that [L.E.E.] will do whatever he likes and that there is nothing that she can do to change that fact. Dr. Williams concluded that [L.A.B.] is incapable of adequate parenting and of protecting a child from [L.E.E.]

Dr. Williams'[s] reevaluation of [L.A.B.] occurred on January 18th, 2006. [L.A.B.] admitted that she was still seeing [L.E.E.] at that time, despite her restraining order. She admitted that he sometimes even stayed with her, meaning by that, that he stayed overnight. Of her children, she said, "They're up for grabs. Whatever.". . . Dr. Williams continue[d] to find her incapable of adequate parenting. He found her not to have made any substantial gains in the year since he had seen her before.

In reaching her decision, Judge Spatola recited extensive findings of fact, and she concluded that the Division had proven the four-part statutory standard for terminating parental rights by clear and convincing evidence. Following the entry of our remand order dated January 30, 2007, L.A.B.'s attorney presented a closing argument on February 20, 2007, and on March 2, 2007, the court made additional findings of fact, which included the following:

It is further apparent to this [c]ourt that [L.A.B.] has harmed [Andrea] by prioritizing her toxic relationship with [L.E.E.], her controlling and abusive paramour, over her relationship with her daughter; or, in fact, over her relationship with any of her children. More, in fact, was required of [L.A.B.] than to accept the services the Division offered to her. She needed to get something out of those services and unfortunately she did not.

Whether this was because of intellectual deficit, because she had suffered from battered woman's syndrome, which was not demonstrated at trial, but if we hypothesize that perhaps she had suffered from such a syndrome, or simply because she valued [L.E.E.] more than her children, it makes no difference.

[L.A.B.] failed to attain a level of parental competence and any semblance of independence from [L.E.E.] sufficient to allow any plan for reunification to be given serious consideration by the Division or by this [c]ourt.

. . . .

It is simply insufficient to argue that since [L.A.B.] is herself a victim, that is of [L.E.E.'s] violent, militaristic, egocentric, and controlling behavior, we should not further victimize her by terminating her parental rights to [Andrea].
The test set forth in N.J.S.A. 30:4C-15.1(a), the so-called best interest test, requires the [c]ourt to assess what is in the child's best interest, not, indeed, what is in the parents' best interests.

Moreover, there is no evidence that giving [L.A.B.] a child to parent would even be in her best interest, since she herself appears to be only barely capable of caring for herself and is absolutely incapable of protecting herself from [L.E.E.] by her own admission.

"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. Based on our review of the record in this case, we are satisfied that L.A.B.'s representation was not ineffective, both parents received a fair trial, and the evidence firmly supports the decision to terminate L.E.E.'s and L.A.B.'s parental rights. We therefore affirm substantially for the reasons stated by Judge Spatola on September 11, 2006, and March 2, 2007.

The judgment terminating defendants' parental rights is affirmed.

 

(continued)

(continued)

12

A-1087-06T4

RECORD IMPOUNDED

December 24, 2007