NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. N.T.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6142-05T46142-05T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

N.T.,

Defendant-Appellant,

and

G.S.,

Defendant,

IN THE MATTER OF THE GUARDIANSHIP

OF N.S., a minor.

___________________________________________________________

 

Submitted February 14, 2007 - Decided March 16, 2007

Before Judges Lisa and Holston, Jr.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FG-09-274-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lisa N. Brown, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, N.T., appeals the Family Part's May 26, 2006, judgment of guardianship whereby N.T.'s parental rights to her daughter, N.S., were terminated and guardianship of N.S. was awarded to the New Jersey Division of Youth and Family Services (Division). We affirm substantially for the reasons expressed in Judge DeCastro's thorough and well reasoned written opinion of May 26, 2006.

On appeal, N.T. claims that the Division failed to prove by clear and convincing evidence the four prongs of the "best interests" of the child standard set forth in N.J.S.A. 30:4C-15.1(a). N.T. further contends that the trial court erred in denying her pretrial motion, which she renewed after the Division rested its case, to dismiss the guardianship complaint because N.T. was willing to make an identified surrender of her parental rights.

We begin our inquiry by restating the applicable legal principles in light of the decision ordered by the Family Part judge and the ultimate conclusion that she reached.

The rights of parents to enjoy a relationship with their children is of constitutional dimension. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); NJDYFS v. A.W., 103 N.J. 591, 599 (1986). Parents have a constitutionally protected, fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). The Federal and State Constitutions protect the inviolability of the family unit. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); A.W., supra, 103 N.J. at 599.

Government "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 118, 119 (1979). The State as parens patriae may act to protect children from serious physical and emotional harm. This may require a partial or complete severance of the parent-child relationship. However, "[f]ew forms of state action are both so severe and so irreversible." Santosky, supra, 455 U.S. at 759, 102 S. Ct. at 1398, 71 L. Ed. 2d at 610.

When the child's biological parent resists termination of parental rights, our function is to decide whether the parent can raise the child without causing harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of our inquiry is not whether the parent is fit, but whether he or she can become fit to assume the parental role within time to meet the child's needs. Ibid. "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid. The burden rests on the party seeking to terminate parental rights "to demonstrate by clear and convincing evidence" that risk of "serious and lasting [future] harm to the child" is sufficiently great as to require severance of parental ties. Ibid.

The balance between fundamental parental rights and the State's parens patriae responsibility is achieved through the best interests of the child standard. K.H.O., supra, 161 N.J. at 347. Under that standard, parental rights may be severed when:

(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 standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. K.H.O., supra, 161 N.J. at 348. In reviewing a trial judge's findings, the appellate court is obliged to accord deference to the trial court's credibility determinations and its "feel of the case" based upon its opportunity to see and hear the witnesses. State v. Johnson, 42 N.J. 146, 161 (1964). As a reviewing court, we are bound by the trial court's findings "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998).

N.S. was born premature on July 17, 2003, and tested positive for methadone. N.T. also tested positive for methadone and heroin. N.T. admitted to the Division that she used heroin the weekend before she gave birth and took sixty milligrams a day of methadone. N.S. went through withdrawal because of N.T.'s drug usage and was deemed medically fragile. On July 28, 2003, N.T. signed a fifteen-day consent to place N.S. in the custody of the Division. By order dated August 21, 2003, the Division was granted legal custody of N.S. On August 27, 2003, N.S. was placed in Hudson Cradle, a nursery for special needs children. N.S. is blind, has cerebral palsy and is developmentally delayed. N.S. stayed at Hudson Cradle until September 1, 2004, when she was placed with a Special Home Services Provider, who initially was interested in adopting N.S., but at the time of trial was no longer willing to do so. W.A., a paternal aunt, was also contacted but declined to care for N.S. because of her special needs. N.S. has received physical, occupational and speech therapy in her specialized home provider placement.

On September 11, 2003, N.T. was ordered to attend a detox program and then enter Straight and Narrow (S & N) for drug treatment. On that same date, N.T. waived a factfinding hearing and entered a voluntary stipulation that she abused drugs at the time of her daughter's birth. The Court granted N.T. supervised visitation at the Division's office but visitation was, thereafter, suspended because she became verbally abusive to staff.

On October 22, 2003, N.T. was admitted to S & N but continued to test positive for drugs while at this program. Notwithstanding N.T.'s failure to visit N.S. at Hudson Cradle, except for one occasion on December 11, 2003, the court ordered that N.S. be placed with N.T. at S & N once N.S. was medically cleared. In mid-January 2004, it was reported that N.T. was only minimally engaged in her drug program at S & N, as a result of which N.S. was not placed with her. However, by March 4, 2004, N.T. was reported as doing well at S & N and completed the program in May 2004. She was also accepted into Project Home, a transitional housing program.

At the June 3, 2004 compliance review hearing, the court ordered reunification with N.T. by October 2004. Shortly after the court ordered that N.S. be placed with N.T., the Division learned that N.T. was not attending group and individual therapy sessions, had failed to attend NA/AA meetings, was discharged from Project Home for noncompliance, and had resumed her relationship with G.S. The Division then referred N.T. to an outpatient program. However, N.T. did not contact the Division from June 10, 2004 to August 3, 2004.

On August 26, 2004, the court ordered a three month extension before reunification with N.S. could take place, and N.T. was ordered to attend an out-patient substance abuse treatment program and to secure suitable housing. She was allowed bi-weekly supervised visits at the Division office.

On December 9, 2004, the court accepted the Division's permanency plan for termination of parental rights followed by adoption because N.T. had not secured stable housing. N.T. was ordered to submit to random drug testing and obtain stable housing. On March 17, 2005, the Division filed a guardianship complaint against N.T.

From August to November 2005, N.T. had very little contact with the Division. She tested positive for cocaine and methadone on nine separate occasions during that time. However, N.T. did attend parenting skills training on four occasions from November to December 2005.

On December 12, 2005, Frank J. Dyer, Ph.D, issued a report describing his psychological assessment of N.T. and G.S. upon completing individual psychological examinations and bonding evaluations with N.S. During N.T.'s evaluation, Dyer learned that N.T. was encountering a high degree of stress in her environment, she had a severe drug problem, and she presented an elevated risk for suicide. In his report, Dyer "strongly recommended that [the Division] not consider [defendant] as a viable candidate for custody of [N.S.]." His recommendation was based on N.T.'s unsuccessful efforts to treat her drug addiction, the fact that she was emotionally and behaviorally unstable, and she did not display an adequate appreciation of the special needs of N.S. Dyer recommended that the Division "pursue a case goal of select home adoption for N.S."

Dyer observed that N.S. reacted negatively to N.T. and G.S., that she was emotionally upset and agitated during the bonding assessment, and that the birthparents were not effective in consoling or comforting N.S. He opined that N.T. and G.S. would not be able to care for a child with such "extraordinary special needs, as she is visually impaired, mentally retarded, and epileptic, as well as suffering from motor problems due to cerebral palsy." During trial, Dyer testified that he did "not see a realistic likelihood that either party [would] achieve adequate parenting capacity within the foreseeable future."

In June 2005, V.A.C., a paternal aunt, contacted the Division as a potential caretaker for N.S. V.A.C. completed the necessary background check and training for resource parents and began visiting N.S. in February 2006. At the guardianship trial held on March 23, March 27, April 19, and May 16, 2006, caseworker, Daniel Sianozecki, testified that V.A.C. has been "very cooperative" with the Division in her attempt to gain permission to care for N.S. However, when the guardianship trial began, V.A.C. had yet to be approved. V.A.C. still had to be medically cleared, her cat needed to be vaccinated and a waiver for her to work full-time had not yet been granted. Sianozecki testified that "[N.S. is] what the Division probably would consider a hard to place child."

Family resource worker, Elizabeth Esteves, testified about the home study process for approving V.A.C. as a resource parent including the need for a physical within the preceding six months. V.A.C. testified that the physical was not completed because there was a misunderstanding between the Division and her doctor's office as to whether blood work was required for the physical but that she was willing to comply with the physical examination and that she would make an appointment that week.

During the hearing, Judge DeCastro ruled on defense counsel's motion to dismiss the guardianship complaint for failure to satisfy the prerequisites of N.J.S.A. 30:4C-15. The court noted that N.J.S.A. 30:4C-15(c) provides that a petition may be filed when "it appears that the best interests of the child, under the care and custody of the Division, requires that it be placed under the Guardianship Petition." The judge determined that on viewing the evidence in the light most favorable to the Division "the Division ha[d] submitted a prima facie case that it would be in the best interest of this child" to be placed under guardianship.

At the conclusion of the guardianship trial, the Division had approved payment for the vaccination of V.A.C.'s cat, but a waiver allowing V.A.C. to work an additional ten hours a week was still pending. The court was informed, however, that N.S. qualified for a preschool handicapped program, which would allow V.A.C. to work the additional hours. As such, the court ordered the waiver to be completed by May 26, 2006, the day on which the court would issue its opinion.

On May 26, 2006, Judge DeCastro issued a fifteen page written decision in favor of terminating the parental rights of N.T. and G.S. to N.S. Judge DeCastro found that the Division "ha[d] proved by clear and convincing evidence that it is [in] the child's best interest to terminate the parental rights of N.T. and G.S." The court found that N.S.'s health was seriously impaired by the parental relationship because N.T. had "caused profound and permanent harm to her daughter by her drug abuse during pregnancy." Judge DeCastro also found that N.T. is unable to eliminate the harm because she has failed to remain drug free or retain stable housing or employment since the Division's involvement.

Further, the court found that the Division offered many services to her throughout its involvement with the family, including substance abuse evaluations, visitation, along with transportation, and alternatives to termination. As for approving V.A.C. as a resource parent, Judge DeCastro found that the delay was caused by both the Division and V.A.C. However, the court found that "regardless of whether adoption will be with [V.A.C.] or a select home adoption family, termination of the parents' rights is warranted." Finally, Judge DeCastro found that termination will not do more harm than good because the expert testimony indicated that there was no parental relationship or bond between N.S. and either of her parents. As such, the court held that the Division met its burden that termination of parental rights was in N.S.'s best interest. An order memorializing the court's decision was entered on the same day.

I.

N.T. argues that it was premature to terminate her parental rights because she was willing to make an identified surrender to V.A.C., once the Division's requirements were met. N.T. contends that the Division failed to exercise reasonable efforts by not fully exploring the alternatives to termination. N.T. claims that the Division's permanency plan was consistent with her own, which was to have V.A.C. adopt N.S. Since V.A.C. was close to being approved by the Division, N.T. argues that the trial court abused its discretion by allowing the termination proceedings to continue instead of providing for an identified surrender by her. According to N.T., an identified surrender was preferred because her rights could be reinstated if V.A.C. was unable to complete the adoption.

Judge DeCastro denied defendant's motion to dismiss because she found that the Division made a prima facie showing that the best interests of N.S. required she be placed under guardianship, citing N.J.S.A. 30:4C-15(c). In rendering her decision, the judge relied on the testimony of Sianozecki and Esteves, who was responsible for approving V.A.C. as a resource parent. Additionally, Judge DeCastro had been involved in this case since December 2003.

The best interests of the child standard is an extremely fact sensitive inquiry. The record clearly demonstrates that the Division made reasonable efforts to consider alternatives to termination. In June 2004, the Division sought a permanency plan of reuniting defendant with N.S. The Division was ordered to place N.S. with N.T. no later than October 2004. This attempt at reunification was unsuccessful because N.T. was negatively discharged from Project Home. Despite N.T.'s discharge, reunification continued to be the permanency plan, if N.T. obtained employment and suitable housing and attended an outpatient substance abuse treatment program. Because N.T. was unable to secure stable housing, the plan for reunification was ultimately rejected and termination proceedings were initiated by the Division. Based on the record, reunification failed as a result of N.T.'s lack of effort, not because the Division failed to provide enough services or alternatives to termination. Further, the Division attempted other relative placements. Those relatives rejected the offer of placement because of N.S.'s special needs.

We are satisfied that the court's decision not to accept the identified surrender and proceed with termination was within the court's broad exercise of discretion. "An 'identified surrender' means that those exact person(s) as to whom the surrender is made shall adopt the children. If for some reason the 'identified' persons are not able to adopt the child, the surrender becomes 'void' and the parental rights of surrendering parent(s) are reinstated." NJDYFS v. D.M.B., 375 N.J. Super. 141, 145 (App. Div.), certif. denied, 183 N.J. 586 (2005). This is in contrast to termination proceedings, which, if successful, terminate the parent's rights indefinitely. Id. at 146.

This distinction forms the basis for the Division's discretion to accept an identified surrender or proceed with termination proceedings. Id. at 147. Thus, the Division has the option to accept the identified surrender, but it also has the right to proceed with termination proceedings. Ibid.

We are satisfied from our review of the record that it was reasonable for the Division to have chosen to proceed with termination and not to have accepted the identified surrendered offered by N.T. The Division was seeking finality so that permanency could be sought for N.S. since the numerous attempts at reunification were unsuccessful. Since, as the Division noted, V.A.C. had yet to be approved as of the commencement of the guardianship trial, N.S.'s placement with V.A.C. remained uncertain. Judge DeCastro stated:

[N.T.] also argue[s] that the Division failed to timely conduct an investigation of another relative, [V.A.C.]. Some of the delay can be traced to the Division. However, neither [N.T.] nor [V.A.C.] are blameless for the delay in placing [N.S.] with [V.A.C.] The Division is currently exploring [V.A.C.] In fact, the Division's plan is to place the child with [V.A.C.], once all of the requirements have been met. However, N.T. did not mention [V.A.C.'s] name as a placement option until June 2005. It is clear from the record that there were many administrative problems that resulted in a delay for her approval. One problem that arose involved getting her adult son fingerprinted. Because he lacked a proper birth certificate, there was a delay with his fingerprinting. In addition, the Division made numerous requests to various doctors and guidance counselors requesting information on [V.A.C.'s] own children. Many of these requests required second notices before the information was sent to the Division.

At the time of the trial, [V.A.C.] still had . . . not obtained a required medical examination causing further delay in placing [N.S.] with her. Another delay has been the Division's application for a waiver to be granted so that she may continue to be employed on a full-time basis. Presently, it is the Division's policy that caregiver[s] of special needs children do not work full-time. However, now that [N.S.] is three-years-old, she qualifies for a preschool handicapped program and will not require a full-time caregiver. The caseworker testified that the waiver would be granted.

There are simply no viable alternatives to termination in this case. This child needs permanency. Neither parents will be available in the foreseeable future to offer her a safe and stable home.

Although it is an acknowledged policy of the Division to place children with relatives whenever possible and although there are statutory provisions in Title 30 and Title 9, which refer to relative placement, there is no presumption in favor of a relative as opposed to a third party. [NJDYFS v. M.F., 357 N.J. Super. 515, 527-28 (App. Div. 2003)]. Here, if [V.A.C.] is approved, placement with this relative is encouraged as long as she is willing to adopt [N.S.] However, if her application is denied, the Division will seek a select home adoption family. Concededly, [N.S.] has severe disabilities, which may make placement difficult but she cannot wait until her parents decide to get their life together. Permanency is of the utmost importance to all children and especially one with severe disabilities.

There are no alternatives to terminating these parents' rights. Kinship Legal Guardianship is not appropriate because of the child's age, developmental delays and her need for permanency. Therefore, regardless of whether adoption will be with [V.A.C.] or a select home adoption family, termination of [N.T.'s] rights is warranted.

We are in agreement with the findings and conclusions of Judge DeCastro. The Division has proved by clear and convincing evidence that termination of parental rights of N.T. to N.S. is in the best interest of N.S. We are also convinced the judge properly exercised her discretion in denying N.T.'s motion to dismiss and in proceeding with the guardianship trial.

Affirmed.

 

The judgment of guardianship also terminated the parental rights of G.S., N.S.'s father. G.S. has not appealed the court's termination of his parental rights.

(continued)

(continued)

17

A-6142-05T4

RECORD IMPOUNDED

March 16, 2007