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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5032-05T45032-05T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

T.R.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF D.N.,

A Minor.

______________________________

 

Submitted January 18, 2007 - Decided March 2, 2007

Before Judges Stern and Collester.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County,

FG-07-26-06.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael C. Kazer, Designated

Counsel, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant

Attorney General, of counsel; Deborah Shane-

Held, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian for minor D.N. (Olivia Belfatto Crisp,

Assistant Deputy Public Defender, of counsel

and on the brief).

PER CURIAM

This is an appeal by T.R., the mother of D.N., from a judgment of guardianship and permanency order terminating her parental rights. It is a sad case illustrating the cycle of child abuse and neglect accompanied by grievous poverty and disabling addiction.

By any standard T.R. endured a horrific childhood. She was placed in foster care by the Division of Youth and Family Services (DYFS or Division) at the age of seven due to abuse and neglect by her mentally ill mother and suffered sexual abuse by her uncle and her mother's paramour. At the age of seventeen she gave birth to the first of her fourteen children. The next eleven were born between January 21, 1990 and January 11, 2004. T.R.'s parental rights to all of these children were terminated by reason of abuse and neglect.

While termination proceedings were ongoing, T.R. gave birth on November 16, 2004 to D.N., her thirteenth child, and the subject of this appeal. The following day, a hospital social worker aware of T.R.'s extensive history, contacted DYFS for immediate intervention on behalf of the child. On November 30, 2004, the Division filed a complaint and order to show cause seeking custody and supervision of D.N. The matter was referred to the Essex Vicinage Child Welfare Mediation Program. T.R. participated in one of the two mediation sessions at which time it was agreed the child would be placed with D.J.N., provided that he obtain his own apartment separate from T.R. The child would be placed in his custody, and T.R. would have unlimited visitation with D.J.N. present. T.R. supported the plan and understood the reason for the condition of separate residences. However, the plan collapsed because D.J.N. did not comply with the conditions of placement. He did not appear for a psychological evaluation; his visitation with the child was sporadic; and, most significantly, he did not establish a separate residence.

Following a factfinding hearing on February 28, 2005, the Family Court judge found clear and convincing evidence that D.N. should continue in the care, custody and supervision of DYFS. Subsequently, the court granted an application made pursuant to N.J.S.A. 30:4C-11.3 to except DYFS from the statutory requirement to initiate efforts to reunite D.N. and T.R., based upon T.R.'s prior criminal convictions and the termination of parental rights to her twelve other children. The court further accepted DYFS' permanency plan for the termination of parental rights followed by adoption.

On July 26, 2005, the guardianship complaint was filed to terminate the parental rights of T.R. and D.J.N. Default was entered against D.J.N., and the matter proceeded to trial as to T.R.'s parental rights. Dr. Frank J. Dyer, a psychologist, and two DYFS workers testified in support of the application, and T.R. testified in opposition. On January 10, 2006, Judge R. Benjamin Cohen delivered a comprehensive oral decision finding DYFS had proved the elements of N.J.S.A. 30:4C-15.1 by clear and convincing evidence. He terminated T.R.'s parental rights and gave placement of the child to pending adoption.

T.R. argues the following:

POINT I - THE DIVISION'S REQUIREMENT THAT THE DEFENDANT SURRENDER HER CONSTITUTIONAL RIGHT TO ASSOCIATION IN ORDER TO PREVENT THE DIVISION FROM TERMINATING HER PARENTAL RIGHTS WAS UNRELATED TO ANY LEGITIMATE PARENS PATRIAE RESPONSIBILITY UNDER N.J.S.A. 2C:15.1(A) (SIC) AND DENIED DEFENDANT EQUAL PROTECTION OF THE LAW.

POINT II - THE JUDGMENT OF GUARDIANSHIP TERMINATING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S FINDINGS WITH REGARD TO THE SECOND, THIRD, AND FOURTH PRONGS OF THE BEST INTEREST TEST WERE BASED ON PROOFS WHICH WERE "EQUIVOCAL" BECAUSE OF THEIR STALENESS.

A. THE DIVISION FAILED TO PROVE THAT THE DEFENDANT REMAINS PARENTALLY UNFIT TO MEET THE NEEDS OF D.N.

B. THE DIVISION SHOULD HAVE BEEN EQUITABLY ESTOPPED FROM BEING RELIEVED OF ITS THIRD PRONGED DUTY TO OFFER REUNIFICATION SERVICES TO THE DEFENDANT.

C. THE TRIAL COURT APPLIED AN IMPROPER "BETTER INTERESTS" ANALYSIS INSTEAD OF THE STATUTORILY REQUIRED "BEST INTERESTS" TEST UNDER THE FOURTH PRONG.

After careful review, we find that Judge Cohen's decision was based on findings of fact adequately supported in the record, and that the arguments made by T.R. were without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We make only the following comments.

T.R. contends DYFS acted outside its parens patriae responsibility under N.J.S.A. 30:4C-15.1(a) and denied her equal protection of the law by requiring her to separate from D.J.N. in order to preserve her parental rights. However, the condition that D.J.N. establish a separate residence was supported by T.R. during mediation in light of DYFS' concerns and with the understanding she was permitted unlimited visitation supervised by D.J.N. DYFS never required that D.J.N. terminate his relationship or disassociate himself from T.R. The restriction was a condition of placement with D.J.N. in order to protect the child's welfare. In any event, the condition was never implemented because D.J.N. never took necessary steps for placement.

We affirm substantially for the reasons set forth by Judge Cohen in his January 10, 2006 oral opinion.

 
Affirmed.

The order entered on January 23, 2006, also terminated the parental rights of the father, D.J.N. He has not appealed.

(continued)

(continued)

6

A-5032-05T4

RECORD IMPOUNDED

March 2, 2007