NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. Z.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4967-08T4

A-4969-08T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

Z.R.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF G.T., Jr.,

a Minor.

__________________________________

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

G.T., Sr.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF G.T., Jr.,

a Minor.

_______________________________________________________________

January 5, 2011

Submitted November 16, 2010 - Decided

Before Judges Carchman, Graves and Waugh.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County,

Docket No. FG-07-249-08.

Yvonne Smith Segars, Public Defender, attorney

for appellant G.T., Sr. (Anna F. Patras, Designated

Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney

for appellant Z.R. (Mark E. Kleiman, Designated

Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for

respondent (Andrea M. Silkowitz, Assistant

Attorney General, of counsel; Cissy M. Rebich,

Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for minor G.T., Jr.

(Phyllis G. Warren, Assistant Deputy Public

Defender, on the brief).

PER CURIAM

In these consolidated appeals, defendant Z.R. is thebiological mother and defendant G.T., Sr. (G.T.) is the biological father of G.T., Jr. (Junior), who was born on January 28, 2007. Defendants appeal from a judgment entered on April 28, 2009, terminating their parental rights and granting guardianship of Junior to the Division of Youth and Family Services (DYFS or the Division). For the reasons that follow, we affirm.

At the outset, we reiterate the well-settled principle that parents enjoy a fundamental right to raise and maintain a relationship with their children that is protected by the United States and New Jersey Constitutions. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). Moreover, "[t]he Legislature has declared that '[t]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare.'" K.H.O., supra, 161 N.J. at 347 (second alteration in original) (quoting N.J.S.A. 30:4C-1(a)).

Notwithstanding the fundamental nature of the parent-child relationship, parental rights are not absolute. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). "The State has a basic responsibility . . . to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102 (citing K.H.O., supra, 161 N.J. at 347); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) ("The State has a responsibility to protect the welfare of children and may terminate parental rights if the child is at risk of serious physical or emotional harm.") (citing Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979)). Furthermore, the 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 New Jersey Supreme Court has "consistently imposed strict standards for the termination of parental rights." K.H.O., supra, 161 N.J. at 347. "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." Ibid. Under that test, termination is not appropriate unless the Division satisfies each of the following four statutory factors by clear and convincing evidence:

(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 addresses the specific circumstances present in each case. Ibid.

Our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "[F]indings by [a] 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. Deference is not appropriate, however, if the trial court's findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

In this case, the trial took place on four non-consecutive days in March and April 2009, and the trial court set forth its findings and conclusions in a comprehensive written decision on April 22, 2009.

On appeal, Z.R. presents the following arguments:

POINT I

 

THE TRIAL COURT'S FINDINGS WERE INCOMPLETE AND INADEQUATE TO SUSTAIN A JUDGMENT TERMINATING [Z.R.'S] PARENTAL RIGHTS BY CLEAR AND CONVINCING EVIDENCE AS REQUIRED BY N.J.S.A. 30:4C-15.1.

 

POINT I(A)

 

THE TRIAL COURT ERRED IN FINDING THAT DYFS DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT THE CHILD'S HEALTH AND DEVELOPMENT HAD BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP UNDER THE FIRST PRONG.

 

POINT I(B)

 

THE TRIAL COURT IMPROPERLY RELIED ON THE MAPLEWOOD POLICE REPORTS IN DETERMINING THAT APPELLANT, [Z.R.] POSED A RISK TO HER CHILD UNDER THE SECOND PRONG.

 

POINT I(C)

 

THE TRIAL COURT ERRED IN FINDING THAT DYFS DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT THE APPELLANT WAS 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 UNDER THE SECOND PRONG.

 

POINT I(D)

 

THE TRIAL COURT ERRED IN FINDING THAT DYFS DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT IT HAS MADE DILIGENT 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 UNDER THE THIRD PRONG.

 

POINT I(E)

 

THE TRIAL COURT ERRED IN FINDING THAT DYFS DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF [Z.R.'S] PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

 

In addition, G.T. submits the following arguments for our consideration:

POINT I

 

THE DECISION TO TERMINATE G.T.'S PARENTAL RIGHTS WAS AGAINST THE WEIGHT OF SUBMITTED EVIDENCE AND TESTIMONY.

 

POINT II

 

PRONGS 1 & 2: THE DIVISION HAS NOT SHOWN BY CLEAR AND CONVINCING EVIDENCE THAT G.T.'S RELATIONSHIP WITH [JUNIOR] WILL CAUSE ENDURING HARM AND ANY PERCEIVED HARM CAN BE ELIMINATED.

 

POINT III

 

PRONG 3: DYFS DID NOT PROVIDE "REASONABLE EFFORTS" TO REUNIFY G.T. WITH [JUNIOR].

 

POINT IV

 

PRONG 4: TERMINATION OF G.T.'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD TO [JUNIOR].

 

Based on our examination of the record, we are satisfied that: (1) the trial court's findings and conclusions are adequately supported by clear and convincing evidence; (2) the court properly applied the applicable legal principles; and (3) defendants' arguments are without merit. R. 2:11-3(e)(1)(E). We therefore affirm substantially for the reasons stated by Judge James S. Rothschild, Jr., in his written decision on April 22, 2009. We add only the following comments.

Z.R. was born on September 16, 1970, and G.T. was born on November 24, 1961. They never married but lived together for about two years before Junior's birth.

At trial, Z.R. admitted using cocaine "three nights" before the baby was born. When the baby was born on January 28, 2007, Z.R. tested positive for cocaine, and Junior tested positive for cocaine and benzodiazepines. The Division filed a complaint for custody together with an order to show cause, and the court placed the child in the care and custody of the Division on February 2, 2007.

When Junior was discharged from the hospital, the Division placed him with G.T. However, G.T. tested positive for cocaine in April 2007, and Junior was removed from G.T.'s care and placed in a foster home. About a year later, on May 8, 2008, the Division filed a complaint for guardianship.

During the trial, the court heard testimony from Evalina Hinton, a DYFS supervisor; Z.R. and G.T.; and two expert witnesses: Dr. Mark Singer, Ed.D., for the Division, and Dr. Richard Klein, Ed.D., for G.T. In its written decision, the court carefully considered all of the evidence and made specific findings regarding each of the four statutory factors the State must establish to terminate parental rights.

The court found that both parents "presented a danger to [Junior] when he was born and for some time thereafter." It also determined that neither parent was able to provide a safe and stable home for the child:

The case is over two years old, but despite extensive services provided by DYFS, neither parent has proven to be drug free, or has even completed drug treatment, neither has a job, neither has completed parenting skills training, and neither has a place to live other than the maternal grandmother's home.

 

The trial court also recognized the need "to examine each defendant separately," and its findings with regard to G.T. included the following:

[G.T.] cannot currently parent [Junior]. His own expert, Dr. Klein, admitted as much: . . . "In order to become capable of parenting the child, [G.T.] would need to establish a suitable home, complete parenting skills training, be drug free for at least six to nine months beyond incarceration, and be gainfully employed[."]

Since the time Dr. Klein wrote the above, [G.T.] has not completed parenting skills training, has not become drug free for at least six to nine months, has not established a suitable home, and has not become gainfully employed. This is a 47 year old man who has been a drug user at least "sporadically" . . . since he was 25 -- over two decades ago.

 

Thus, in assessing whether it would be harmful to [Junior] to terminate his father's rights, it is not necessary to decide whether Dr. Klein is more believable than Dr. Singer, who reported that [G.T.] "has difficulty dealing with authority figures[,"] has "little desire for meaningful social contact[,"] and "may have difficulty adhering to limits placed upon his behavior" (a position almost exactly the same as Straight and Narrow's conclusion that "[G.T.] appeared to have difficulty in a structural . . . environment of this program").

 

In addition to all the above, the court has come to question [G.T.'s] truthfulness. Among other things, [G.T.] denied using cocaine when first caught, did not stay for a court ordered drug screen on March 9, 2009, did not attend court the second day of trial on [April] 13, 2009, and did not appear to be totally honest either in his May 22, 2008 letter from Delaney Hall [or] in his testimony before the court.

 

The court also determined that Z.R. was unable to provide Junior with a safe and stable home:

[Z.R.], at this time, is less able to successfully parent than is [G.T.]. She has not completed parenting skills classes, she has not become totally drug free, she has no job, and she has no housing other than that with her mother. Drs. Singer, Christodoulou, and Tadeja all diagnosed recurring serious psychological problems - - obsessive compulsive problems, panic disorders, depression, and cocaine dependence. While each of these problems are potentially curable and do not foreclose [Z.R.] from parenting in the future, there is no evidence that any of her problems have been cured or is even close to being cured. Indeed, no expert testified to the contrary. It would be unsafe to return [Junior] to [Z.R.].

 

The trial court found that DYFS had proven all four prongs of the statutory test for termination of parental rights, and we agree with the trial court's analysis. See N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512 (2004) (recognizing that parents who persist in substance abuse harm their children, and ongoing substance abuse can be a legitimate basis to terminate parental rights). Moreover, as the court noted, "termination will provide a tangible benefit" because the foster parents, who have been providing Junior with "consistency and permanency," are committed to adopting him.

Affirmed.