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DOCKET NO. A-4562-09T3










March 2, 2011


Submitted February 7, 2011 - Decided


Before Judges Grall, LeWinn and Coburn.


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-77-09.


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


Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jane S. Blank, Deputy Attorney General, on the brief).


Yvonne Smith Segars, Public Defender, Law Guardian,attor ney for minor (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).


N.C.M. is the biological mother of K.E. who was born in June 2006. She appeals from the April 21, 2010 judgment terminating her parental rights to the child. M.E., the child's natural father, voluntarily surrendered his parental rights, as noted in the same judgment.

Defendant contends that the trial judge erred in concluding that the Division of Youth and Family Services (DYFS) had met the four-pronged best interests test for terminating parental rights set forth in N.J.S.A. 30:4C-15.1(a)(1) to (4), by clear and convincing evidence. We disagree and, therefore, affirm the judgment terminating defendant's parental rights.

Our review of the record convinces us that DYFS met each of the statutory standards by the requisite standard of proof. We briefly summarize the pertinent evidence upon which the trial judge based his decision.

DYFS was previously involved with defendant and M.E. in 2003, leading to the termination of their parental rights to a son, K.A.J., born in 2003. The first referral to DYFS on behalf of K.E. was in August 2007, at which time defendant was living in housing provided by a temporary rental assistance program for victims of domestic violence. No domestic violence was substantiated at that time; because of defendant's prior history and then-current unstable living situation, however, DYFS scheduled a psychological evaluation of defendant. Despite follow-up communication from DYFS and the provision of transportation, defendant canceled three appointments before attending an evaluation in January 2008. M.E. was also evaluated on this date. Following the evaluations, defendant advised DYFS that she was facing eviction from her apartment that day and had taken no steps to ensure that she had a place to stay with K.E.

Defendant's rental assistance at that apartment had been terminated due to her failure to comply with the rental assistance program's work activity requirement. Despite her eligibility for both transportation and child care, defendant claimed she was unable to work for those two reasons.

At some point, defendant moved in with an aunt in New York, with K.E. Because defendant's whereabouts were unknown to DYFS at that point, the agency filed an order to show cause, which resulted in an emergency removal of K.E. on January 15, 2008. DYFS obtained custody of K.E. and substantiated neglect of the child at that time, on the basis that defendant's noncompliance with the work requirements of the rental assistance program had caused her homelessness. After several temporary placements, K.E. was placed in the custody of her paternal grandfather, M.E., Sr., on November 26, 2008, where she remained as of the time of trial.

One evaluator, Heather Diamond, concluded that "both parents presented as immature, irresponsible, impulsive and manipulative adults with narcissistic traits." Diamond noted that defendant "acknowledged a significant history of physical aggression" by M.E., "but denied the presence of domestic violence." She further noted that defendant and M.E. are "financially dependent upon family and/or the government, and have a history of lifestyle instability," stating further that defendant "lost her housing assistance because she was not complying with their requirements. She also did not take proactive steps to maintain housing when informed of her eviction."

Diamond concluded that both defendant and M.E. "have a significant history of non-compliance with required services, as well as poor follow-through." Diamond concluded that neither defendant nor M.E. would "likely comply with any safety plans put in place by [DYFS] if they disagree with it. They will likely attempt to present as compliant while doing what they want on the sly."

Dr. Rachael Jewelewicz-Nelson conducted a psychological evaluation of defendant and bonding evaluations with defendant and with M.E., Sr., on behalf of DYFS. Defendant missed several scheduled appointments. Nelson concluded that defendant had "a dependent personality structure with narcissistic and histrionic traits." In Nelson's opinion, defendant "has unrealistic plans and goals for herself with regard to furthering her education, obtaining employment and housing, and sustaining an independent life as a single parent." Nelson found it unlikely that defendant could provide K.E. with a stable, consistent and secure home at present or in the near future.

The bonding evaluation disclosed that defendant had a bond with K.E., but that defendant acted more like a friend than a parent. Nelson opined that defendant would not be able to meet K.E.'s needs and, therefore, concluded that the termination of defendant's parental rights would not do more harm than good.

Nelson observed that M.E., Sr., was "calm, controlled, . . . attuned to [K.E.'s] moods . . . and eminently capable of meeting [her] needs." This was especially important because, in the doctor's opinion, K.E. required immediate stability. Nelson recommended that M.E., Sr., adopt K.E.

During this period, defendant was also involved in drug use and, in January 2008, tested positive for marijuana and cocaine. DYFS referred defendant to a substance abuse evaluation in February 2008, which she failed to attend. When finally evaluated in August 2008, defendant was referred to out-patient treatment; however, she was terminated from that program in October 2008 for noncompliance and resistance "to treatment recommendations."

DYFS arranged supervised visitation between defendant and K.E., beginning in March 2008. Defendant missed several visits, often canceling at the last minute after confirming the visit. When defendant had no other means of transportation to attend visitation, DYFS provided her with bus passes.

The trial judge held five case management conferences between January and October 2008; defendant appeared only at three of these conferences. At the proceedings in July 2008, defendant acknowledged that she was "homeless due to not complying with the Work First Program."

As of the time of trial in January 2010, defendant remained homeless and unemployed. She acknowledged that she had failed to complete court-ordered evaluations and DYFS-provided services, despite her desire to be reunited with K.E.

In light of this record, we are satisfied that there is ample support for the trial judge's findings that defendant

has failed to take responsibility in performing her substantial parental functions. She has never established a stable home, a permanent home, or a safe home for the child. She has not provided a means of support for her and the child through employment nor has she provided proof of employment even though she alleged to have been working . . . . She failed to cooperate with [DYFS] and the Bergen County Board of Social Services. In fact, she was sanctioned for lease violations, to the extent that she was ordered to vacate the premises. She was substantiated for neglect by [DYFS]. . . .


In the several months that followed, she failed to either complete or even engage in most of the services, which included visitation with the child.


The judge found that "[t]here has not been one shred of evidence to indicate whether [defendant] can become fit in a timely fashion to assume the parental role necessary to meet the child's needs." The judge further noted Dr. Jewelewicz-Nelson's opinion that K.E. is "'currently thriving in the care of her paternal grandfather, who [is] eager to adopt her and to provide her with permanency.'" The judge also considered the record "clear that [DYFS] has made reasonable efforts to provide [d]efendant with services," and that the "utter failure of [d]efendant to engage in services including visitation . . . led [DYFS] to seek an early permanency hearing." Finally, the judge found that there "are no alternatives to termination of parental rights," and that Kinship Legal Guardianship was not an alternative to termination as the paternal grandfather "is ready to adopt the child."

Based on these findings, which are undisputed in the record, the judge concluded that the termination of defendant's parental rights would not do more harm than good.

Our scope of review of a trial judge's termination of parental rights is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007).

A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record. . . . However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded. Still, even in those circumstances we will accord deference unless the trial court's findings "went so wide of the mark that a mistake must have been made."


[Id. at 279 (internal quotations and citations omitted).]


N.J.S.A. 30:4C-15.1(a) sets forth the four elements DYFS must establish by clear and convincing evidence in order to warrant termination of parental rights. These statutory standards strike a constitutionally permissible balance between the parent's right to have a relationship with her child, Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982), and the State's responsibility to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). See In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999).

DYFS must show:

(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 parent rights will not do

more harm than good.


[N.J.S.A. 30:4C-15.1(a).]

These statutory standards provide "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999). The four factors are "interrelated and overlapping . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).

We are satisfied both that the statutory factors were met and that the controlling principles were followed here. We consider defendant's arguments to the contrary to be "without sufficient merit to warrant" discussion in this opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth in the thorough and thoughtful opinion of Judge John A. Conte, whose findings are adequately supported by the record. R. 2:11-3(e)(1)(A).