NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.C. and S.B.PER CURIAM J.C. and S.B. are the mother and father, respectively, of K.C., now ten years old. They have each appealed from the trial court's judgment terminating their parental rights

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6181-07T4
6181-07T4
A-6213-07T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.C. and S.B.,

Defendants-Appellants.

_____________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

K.C., a minor.

_____________________________________

 

Argued September 22, 2009 - Decided

Before Judges Wefing, Grall and LeWinn.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Passaic

County, No. FG-16-28-08.

Carleen M. Steward, Designated Counsel, argued

the cause for appellant S.B. (Yvonne Smith Segars, Public Defender, attorney; Ms. Steward, on the

briefs).

Sarah L. Monaghan, Designated Counsel, argued the cause for appellant J.C. (Yvonne Smith Segars, Public Defender, attorney; Ms. Monaghan, on the briefs).

Geraldine O. Livengood, Deputy Attorney General,

argued the cause for respondent (Anne Milgram, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Toni Lynn Imperiale, Deputy Attorney General, on the brief).

Jeffrey R. Jablonski, Designated Counsel, argued

the cause for minor K.C. (Yvonne Smith Segars,

Public Defender, Law Guardian, attorney; Mr.

Jablonski, on the brief).

PER CURIAM

J.C. and S.B. are the mother and father, respectively, of K.C., now ten years old. They have each appealed from the trial court's judgment terminating their parental rights to their son, and we have consolidated their appeals. After reviewing the record in light of the contentions each advances on appeal, we affirm.

I

K.C. was born in February 1999. The New Jersey Division of Youth and Family Services ("DYFS") received referrals with respect to K.C. in April 2000 and in April 2004, each alleging that he was often left alone. DYFS determined no action was required in response to either referral. In January 2006, it received another referral, alleging that K.C., then six years of age, was being exposed to domestic violence and drug use. DYFS conducted an investigation and found the allegations substantiated. The apartment in which K.C. was living with his mother and her boyfriend had no hot water or furniture. K.C. told the DYFS worker that he had seen his "father" hit his mother and give her a bloody nose. He indicated familiarity with drug use, although he denied seeing his mother or "father" using drugs. K.C. was removed from his mother's care and placed with his maternal great aunt, T.C. Problems developed with that placement, however, and K.C. was removed and placed with his current caregiver, N.B., with whom he has resided since April, 2006. N.B. wishes to adopt K.C.

At the trial, DYFS presented three witnesses: two of its caseworkers, and Robert Kanen, Psy.D. Dr. Kanen performed psychological evaluations of J.C. and S.B. Dr. Kanen noted J.C.'s history of drug abuse and diagnosed her with interpersonal alienation, depression, and anxiety. In his report, he characterized her as "very erratic with frequent mood changes and a strong tendency toward poor judgment." He concluded that she had severe parenting deficits and was unable to parent K.C.

Dr. Kanen summarized his evaluation of S.B. in the following manner:

[H]e may be characterized by unpredictable and depressive moods, edgy irritability, and feelings of being cheated, misunderstood and unappreciated. Possibly critical and bitter, he may often feel like a victim, overburdened and mistreated. . . .

. . .

When faced with too many demands, he is prone to be moody, unstable and erratic. There is a low tolerance for frustration. This raises concerns about his capacity to maintain his composure and control over his angry feelings when faced with childcare challenges.

Dr. Kanen also conducted a bonding evaluation between K.C. and J.C. He noted that K.C. recognized J.C. as his mother and that a bond existed between the two. He described that bond, however, as an insecure one in light of J.C.'s history of drug abuse, depression, and unstable lifestyle. Dr. Kanen also recognized that K.C. would experience a loss if K.C. were permanently removed from J.C., but expressed the opinion that his positive relationship with N.B. and psychotherapeutic services would prevent him from suffering serious and enduring harm.

Dr. Kanen testified that K.C. had a positive relationship with N.B. He said that the boy was "much more alive and comfortable, and interacted very well" with her. He described N.B. as "very interactive, very educational, very nurturing." He noted K.C.'s need for stability and "closure." He testified that in his opinion it would be a "good thing" for K.C. if he were to be adopted by N.B.

J.C. testified, as did her expert, Marc Friedman, Ph.D. Dr. Friedman conducted a psychological evaluation of J.C., as well as bonding evaluations of K.C. with J.C. and with N.B. Dr. Friedman testified that a strong bond existed between K.C. and J.C. but that in his opinion, although J.C. had made significant progress in addressing her problems, she was not yet ready to serve as a parent to K.C. It was Dr. Friedman's opinion that an individual needed to remain drug-free for several years before being reunified with a child. In his report, Dr. Friedman had recommended kinship legal guardianship, but by the time of trial, that was not a viable alternative because N.B. had rejected it. He testified that in that context, terminating J.C.'s parental rights would cause more harm than good to K.C.

Dr. Friedman observed K.C. separately with J.C. and with N.B. He noted that the boy had a positive relationship with both women but admitted on cross-examination that when asked to draw a picture of his family, he drew his foster family.

S.B. also testified, as did his expert, Lidia D. Abrams, Ph.D. Dr. Abrams interviewed S.B. and performed several recognized tests. She testified that she found nothing that would interfere with S.B.'s ability to parent K.C. She did not observe the two together and did not express an opinion on the question whether K.C. should be placed with S.B.

Following the conclusion of this trial, the trial court issued a written opinion setting forth its determination that the parental rights of both J.C. and S.B. should be terminated. This appeal followed.

II

We turn first to the appeal of J.C. On appeal, she raises the following contentions:

I STANDARD OF REVIEW

II THE DIVISION FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE [J.C.'S] PARENTAL RIGHTS IN ORDER IN ORDER TO PROTECT [K.C.'S] BEST INTERESTS

A. Court's Factual Errors

1. Dr. Friedman Never Said Adoption Was in [K.C.'s] Best Interest

2. Dr. Friedman Never Said [N.B.] Could Ameliorate Harm

3. Mischaracterization of Dr. Friedman's Testimony

B. DYFS Failed to Prove The Second Prong Because [J.C.] Clearly Rectified the Reasons for Removal And Because [K.C.] Will Not Suffer Severe and Enduring Harm if Separated from [N.B.]

1. [J.C.] Eliminated the Reasons for removal

2. [K.C.] wants to be with his mother

C. DYFS Failed to Prove the Third Prong Because It Did Not Investigate the Possibility of Temporary Long-Term Foster Care

D. The State Failed to Prove That Terminating [J.C.'s] Parental Rights Would Not Do More Harm than Good

1. [K.C.'s] Bond With His Mother Guarantees That Termination Will Do More Harm Than Good

2. Court Has No Basis to Believe [N.B.] Will Permit Contact Between [J.C.] and [K.C.] if [J.C.'s] Parental Rights are Terminated

We are compelled to concur in appellant's statement that certain portions of the trial court's written opinion do contain factual inaccuracies. Having reviewed this record, however, we are nonetheless satisfied that the trial court's conclusions are ultimately sound and should be affirmed.

Parents have a fundamental liberty interest in the care, custody and management of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982). However, the right of parents to raise or manage the care of their children is not absolute. The State also has an interest in protecting the welfare of children, and a court must balance this interest and duty against the parents' constitutional rights. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

Termination of parental rights is governed by N.J.S.A. 30:4C-15.1(a). That statute sets out a four-prong test that must be met in order to terminate parental rights:

(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)(1)-(4).]

The Division has the burden of proving each prong by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007). Each case is "extremely fact sensitive," and the four prongs overlap one another. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999) (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)). "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008).

Appellate review of a trial court's termination of parental rights is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact finding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). When there is conflicting testimony, courts must generally "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses . . . [and] it has a `feel of the case' that can never be realized by a review of the cold record." E.P., supra, 196 N.J. at 104 (quoting M.M., supra, 189 N.J. at 293).

A trial court's decision with respect to the determination of a parent's rights should be upheld on review if it is supported by "adequate, substantial and credible evidence" on the record. M.M., supra, 189 N.J. at 279 (citations omitted). Appellate courts generally "do not disturb the factual findings and legal conclusions of the trial judge unless . . . they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)); see also In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993).

J.C. does not challenge the trial court's findings with respect to the first prong. She does, however, argue that the trial court was incorrect with respect to the remaining three prongs.

The second prong requires the court to examine whether a parent is willing or able to address the harm facing the child. N.J.S.A. 30:4C-15.1(a)(2). "The State must show not only that the child's health and development have been and continue to be endangered, but also 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. The inquiry focuses on whether the parent was able to cure the harm and whether he or she can continue the relationship with the child without imposing additional harm. Ibid. "Alternatively, under this second criterion, it may be shown that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49. A parent's delay in being able to assume parental responsibility may constitute harm. Id. at 353-54. To satisfy the second prong, the Division can show that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of his or her bond with foster parents. M.M., supra, 189 N.J. at 285. See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576 (App. Div.) (delay in permanent placement can become harm in and of itself), certif. denied, 192 N.J. 68 (2007).

The trial court's conclusions with respect to the second prong find ample support within the record. J.C.'s own expert testified that at the time of trial, J.C. was not able to function in a parental role toward K.C.

J.C. restricts her argument with respect to the third prong to her contention that DYFS should have investigated the possibility of long-term foster care for K.C. Our review of the trial record leads us to reject this assertion. It is clear from this record that K.C. needs stability and permanence, which he would not achieve in long-term foster care. It is K.C.'s needs which must be addressed, not those of his biological parents.

Satisfaction of the fourth prong requires a finding that termination of parental rights would not do more harm to the child than good.

The question to be addressed under that prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties to her natural parents than from the permanent disruption of her relationship with her foster parents.

[K.H.O., supra, 161 N.J. at 355.]

We disagree with J.C. that the trial court's finding with respect to this prong rested entirely on K.C.'s relationship with N.B. The trial court undoubtedly discussed this relationship in the course of its opinion but as one of many factors. Although Dr. Kanen recognized that termination of J.C.'s parental rights would be difficult for K.C., he also noted that he had been out of her care for some time by the time of trial and that the boy needed closure and permanence. In response to the trial court's direct question, he said it was his opinion that terminating J.C.'s parental rights would not do more harm than good.

One final issue must be noted with respect to J.C. While this appeal was pending, we granted her motion to supplement the record. We are thus aware that J.C. has given birth to another child and that she has remained drug-free and obtained employment. She has the care and custody of this second child. Her accomplishments and her progress are notable, and we applaud them, but they do not lead us to retreat from our original analysis of her appeal.

Clearly, the authority to sever, legally, the parental relationship is one of the most awesome powers vested in a court. Such judgments require exquisite care and sensitivity, and they can only be made with consideration of the circumstances that exist at the time the matter comes before the court. We have noted that the theme that runs through this entire record is K.C.'s need for permanence and stability. In our judgment, we would be derelict in our responsibility to K.C. if we were to let this matter be re-opened. J.C. must focus on her own continued progress and on the infant for whom she is now responsible. The record is clear that removing K.C. from N.B. would pose a significant risk to him. In our judgment, his best interest mandates that he not be subjected to such a risk.

III

We turn now to S.B. On appeal, he raises the following contentions:

POINT I: THE TRIAL JUDGE IMPROPERLY DENIED THE MOTION BY DEFENDANT, [S.B.], TO DISMISS THE DIVISION'S CASE

POINT II: THE EXPERTS AND THE TRIAL JUDGE IMPROPERLY RELIED UPON THE FOSTER MOTHER'S PROMISE TO ALLOW CONTINUED VISITATION AFTER ADOPTION AS A BASIS FOR TERMINATION OF PARENTAL RIGHTS

POINT III: THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE EACH OF THE FOUR PRONGS OF N.J.S.A. 30:4c-15.1, AND, THEREFORE, [S.B.'S] PARENTAL RIGHTS TO HIS SON, [K.C.], MUST BE REINSTATED

A. The trial judge made improper findings of fact to support his decision to terminate parental rights

B. The trial judge improperly found that the first prong of the statute was satisfied

C. The trial judge improperly found that the Division satisfied the second prong of the statute, and, therefore, [S.B.'s] parental rights must be reinstated

D. The trial judge improperly found that the Division satisfied the third prong of the statute

E. The Division failed to demonstrate that termination of [S.B.'s] parental rights will not do more harm than good.

In contrast with J.C., S.B. did not have a long-standing relationship with K.C. He did not know that he had fathered a child with J.C. until his prison wages were garnished for child support. S.B. made one effort to locate K.C. when he was transferred to a halfway house to complete his sentence. He went to J.C.'s apartment and after some period of time, was able to wake her. She told S.B. that K.C., who was six years old at the time, was playing outside with some friends. S.B. saw K.C. riding his bike on the street. S.B. said he had to leave because of the curfew at the halfway house, but he made no effort to see that K.C. was safe. When he finished his sentence, he returned to the apartment but found out that J.C. had moved. When he did find her, she did not tell him that DYFS had placed K.C. in foster care but said that the boy was visiting relatives in the south.

In addition, when DYFS did begin legal action, J.C. did not identify S.B. as K.C.'s father. It was not until the abuse and neglect proceedings had concluded and the guardianship action filed that J.C. named S.B. as K.C.'s father. It was through the efforts of DYFS, after J.C. named S.B. as K.C.'s biological father, that the two met and commenced a program of visitation.

S.B. has a daughter only a few months apart in age from K.C. She resides with her mother. S.B. did obtain employment after his release from prison, working at night. He resided variously with his sister and with his girlfriend. He maintained he wished to have custody of K.C. and that his sister and girlfriend would assist him.

S.B. contends that the record does not support the trial court's finding that he absented himself from K.C.'s life and thus caused the boy harm. He notes that he was in jail when he learned that he had a son and that J.C. had lied to him when she told him that K.C. was visiting relatives.

Although S.B.'s complaints do find some support in the record, it is also true, however, that S.B. made no efforts to safeguard K.C. when he found him alone on the streets at the age of six. It is also true that he made no formal efforts either to locate K.C. or to involve himself in K.C.'s life until he was joined as a party in this litigation. We noted earlier in this opinion the deference owed to the fact-finding process of family court judges. In light of that deference, we sustain the trial court's finding that DYFS met the first prong.

S.B. also contends that the trial court erred when it found that DYFS had established the second prong, that is, that S.B. was unable or unwilling to eliminate the harm he had previously caused K.C. Although we understand S.B.'s view that the trial court did not give him sufficient credit for his accomplishments after being released from prison, the record does demonstrate that S.B. has not been consistent toward K.C.

N.B., for example, told S.B. of K.C.'s problems in school and that K.C. would benefit from his greater involvement. Despite promising N.B. that he would become more active in this regard, he failed to do so. On one occasion, S.B. told K.C. he would come on Christmas. The boy waited all day for him, but S.B. did not come and did not contact K.C. to explain what happened. S.B. does not appear to grasp the impact upon K.C. of such intermittent efforts. In addition, S.B.'s living situation was not fixed and stable. He relocated on several occasions between his sister's home and his girlfriend's home. While the moves were understandable, such periodic relocations would not contribute to K.C.'s sense of stability and certainty.

The third prong DYFS must establish is that it made reasonable efforts to promote reunification. Although he criticizes DYFS for not making further efforts to locate him, it is not clear from the record that the methods to which S.B. points were, in fact, available to DYFS. Once DYFS did become aware of his existence, it did offer to him a variety of services. We reject as without merit the contention that the trial court erred when it found that DYFS offered sufficient proof of the third prong.

N.B. testified that she was aware of the importance to K.C. of having a continuing relationship with his biological parents and that she would permit continued visitation even after she adopted K.C. S.B. contends that it was error for the trial court to rely on the prospect of continued visitation in light of N.B.'s rejection of kinship legal guardianship.

This argument is not supported by the record. N.B. did not reject kinship legal guardianship because of concerns about continued visitation. Her rejection rested upon her belief that it would not provide sufficient certainty and security to K.C., and that, as a result, he would continue to be uncertain as to where he truly belonged.

Finally, we reject S.B.'s challenge to the trial court's finding that DYFS satisfied the fourth prong. The trial court was entirely justified in accepting the expert opinion of Dr. Kanen that terminating S.B.'s parental rights would not do more harm than good, particularly in light of the positive relationship that existed between K.C. and N.B.

S.B.'s remaining argument is that the trial court erred in denying his motion to dismiss, made at the end of DYFS's case. There is insufficient merit to the argument to warrant discussion in a written opinion, for it would have no precedential value. We note for the sake of completeness, however, that S.B. relies upon Rule 4:37-2(b). That rule governs procedures in civil matters. This matter was brought in the Family Part of the Chancery Division and is governed by an entirely different section of the rules governing practice and procedure.

The judgment under review is affirmed.

 

At the time of this referral, J.C. was living with a man K.C. identified as Snook King C, whose real name is Raymond Clark. Although K.C. referred to him as his father, there was no biological relation between the two.

S.B. pled guilty to several drug-related offenses and was sentenced to six years in prison, with a three-year period of parole ineligibility.

(continued)

(continued)

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A-6181-07T4

RECORD IMPOUNDED

October 23, 2009