NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.L.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0175-11T1

A-0229-11T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Appellant,

v.

S.L. and L.R.,

Defendants-Respondents,

and

R.W.,

Defendant.

_____________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

S.W. and P.L., Minors,

Appellants.

_____________________________________

October 25, 2012

Submitted September 19, 2012 - Decided

Before Judges Fisher, Waugh and St. John.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-70-10.

Jeffrey S. Chiesa, Attorney General, attorney forappellant (A-0175-11)/respondent (A-0229-11) Division of Youth and Family Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Michael A. Thompson, Deputy Attorney General, on the brief).

Joseph E.Krakora, PublicDefender, LawGuardian, attorneyfor appellants(A-0229-11)/ respondents (A-0175-11) minors S.W. and P.L. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent S.L. (Mary Potter, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent L.R. (Alan I. Smith, Designated Counsel, on the brief).

PER CURIAM

At the conclusion of an eight-day trial, Judge Robert A. Coogan determined that clear and convincing evidence was lacking on the second, third and fourth prongs of the parental-termination statutory test, N.J.S.A. 30:4C-15.1(a), and entered judgment in favor of defendant S.L., the mother of the two children in question, and defendant L.R., the father of only one.1 The Division of Youth and Family Services (the Division)2 and the Law Guardian for the children have appealed. We calendared their appeals back to back and now, by way of a single opinion, affirm.

In its appeal, the Division argues:

I. BECAUSE THE TRIAL COURT'S DECISION WAS INCONSISTENT WITH CASE LAW AND THE GREAT WEIGHT OF THE EVIDENCE, THIS COURT SHOULD DISREGARD THE FINDINGS MADE BELOW AND DETREMINE THAT [THE DIVISION] PROVED THAT THE BEST INTERESTS OF THE CHILDREN MANDATES TERMINATION OF PARENTAL RIGHTS.

A. THE TRIAL COURT'S FINDING AS TO THE SECOND PRONG INCORRECTLY IGNORED THE UNANIMOUS AGREEMENT OF THE EXPERTS, OVERLOOKED CRITICAL EVIDENCE, AND FAILED TO MAKE FINDINGS CONSISTENT WITH ALL THE EVIDENCE PRESENTED.

B. THE COURT DISREGARDED THE LAW AND THE VOLUMINOUS EVIDENCE PRE-SENTED IN FINDING THAT THE DIVISION DID NOT CONSIDER ALTER-NATIVES TO TERMINATION OF PARENTAL RIGHTS.

C. THE TRIAL FAILED TO MAKE ANY FACTUAL FINDINGS OR CONCLUSIONS OF LAW AS REQUIRED BY K.H.O.[3] IN DETERMINING THAT TERMI[N]ATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

The Law Guardian argues:

I. THE PSYCHOLOGICAL TESTIMONY WAS UNDIS-PUTED THAT [THE MOTHER] COULD NOT ELIMINATE THE RISK OF HARM TO THE CHILDREN; THIS, COUPLED WITH CONSIDERATION OF THE RELATION-SHIP BETWEEN THE CHILDREN AND THEIR FOSTER FATHERS, SATISFIES THE SECOND PRONG OF N.J.S.A. 30:4C-15.

II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT ITS PREFERENCE OF ONE ADOPTIVE PLACEMENT AS OPPOSED TO ANOTHER DEFEATS THE THIRD PRONG.

III. THE TRIAL COURT ERRED IN INVOKING THE "FAIL-SAFE" OF THE FOURTH PRONG TO DENY GUARDIANSHIP WHICH WAS BENEFICIAL TO THE CHILDREN.

We find insufficient merit in these arguments to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), adding only the following brief comments, starting with the applicable legal principles.

Parents have a constitutionally protected right to the care, custody and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); K.H.O., supra, 161 N.J. at 346. "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' 'far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (internal citations omitted). "[T]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.

To be sure, however, the constitutional right to the parental relationship is not absolute. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, the parent's interest must yield to the State's obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Consequently, the Legislature created a test for determining whether a parent's rights must be terminated in the child's best interests.

N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and convincing evidence the following four prongs:

(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 . . .;

(3) The [D]ivision 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.

See also A.W., supra, 103 N.J. at 604-11. The statute's four prongs are not "discrete and separate; they 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.

Once a trial judge enters judgment, our standard of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb factual findings when they are so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998); N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004).

The first prong calls for an exploration of the "endangerment of the child's health and development resulting from the parental relationship." K.H.O., supra, 161 N.J. at 348. The focus is not necessarily on a "single or isolated" event, but rather on "the effect of harms arising from the parent-child relationship over time." Ibid. Judge Coogan determined that the Division met its burden on the first prong by finding that the children's mother:

has a lengthy substance dependency history plus a diagnosis of bipolar disorder, albeit a condition that is now under control through medication. ([She] has also suffered a cerebral aneurysm, but there is no evidence to suggest that this condition impacts on [her] ability to parent.) [The mother's] own testimony confirms that it is only recently that she has accepted the need for treatment and then securing that treatment, has led to two failed relative placements of the girls before their current out-of-home placement. [The mother] by her indifference has endangered the development of her two daughters.

Both defendants argue that the evidence did not support the judge's finding on the first prong. Because we affirm by deferring to the judge's findings on the other prongs, we proceed on the assumption that the judge's first-prong findings are supported by credible evidence without necessarily deciding that question.

In making findings regarding the second prong -- the parents' ability to eliminate the harm and provide a safe and stable home, N.J.S.A. 30:4C-15.1(a)(2) -- the judge addressed the expert testimony offered by the Division and noted, in particular, that Dr. Alison Strasser Winston had opined that the children have "a strong emotional attachment" to their foster parents. In referring to Dr. Winston's report, the judge emphasized the expert's use of the word "attachment" and concluded that her finding of a strong "attachment" conveyed something "far less permanent than a 'bond.'" Based upon this understanding, which is supported by evidence in the record, and his conclusion that Dr. Winston had failed to recognize "the modest degree of success the birth mother has achieved in addressing her substance abuse issues and her bi-polar disorder," as well as other findings contained in his opinion, Judge Coogan concluded that the Division failed to sustain its burden of proving by clear and convincing evidence that the mother was unable or unwilling to eliminate the harm or provide a safe and suitable home. As noted, our standard of review requires that we defer to a judge's findings when supported by evidence in the record unless our deference would offend the interests of justice. The experienced judge had the opportunity to see and hear the witnesses as they testified; he determined that the Division's evidence had failed to create in his mind "a firm belief or conviction as to the truth of the allegations sought to be established." In re Purrazzella, 134 N.J. 228, 240 (1993) (quoting Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960)). The judge was fully entitled to conclude from the lack of evidence of a bond between the children and the foster parents and from Dr. Winston's failure to acknowledge the mother's "modest degree of success" in addressing her issues, that the expert testimony offered fell short of what was required by the clear and convincing standard. The judge was not required to adopt the testimony of the Division's expert. See, e.g., State v. Carpenter, 268 N.J. Super. 378, 383 (App. Div. 1993), certif. denied, 135 N.J. 467 (1994). We have no cause to second guess the judge's determination on this prong.

In addition, the judge was particularly emphatic in rejecting the sufficiency of the Division's proofs on the third and fourth prongs. In determining that the Division failed to sustain its burden of proof regarding the third prong, Judge Coogan observed that

what is so glaring in this case is why [the Division] did not consider as an alternative to termination of parental rights the placement of [the children] with their maternal aunt [T.J.]. [T.J.] was more than a suitable relative resource. She presented with no [Division] history, no criminal justice history and no domestic violence history. In the words of Dr. Wells[,] who evaluated the maternal aunt, [T.J.] has the "means and wherewithal to provide (her nieces) with safety, security and a sense of well-being, and of quintessential value, offers the girls an opportunity to remain connected with their biological family." [The Division] never gave this precious option, a loving family member . . ., the chance to be her nieces' resource, their lifeline.

And, as to the fourth prong, the judge expressed the proper legal standard and concluded:

that the biological mother has substantially "turned her life around." However, the [Division] has refused to recognize this reality and plunged forward into a guardianship trial without considering alternatives to termination of parental rights and that ending [the mother's] parental rights to her two daughters will do more harm than good.

Again, our standard of review compels deference to the experienced judge's determination as to the worth and weight of the Division's proofs.

For these reasons and substantially for the reasons set forth in Judge Coogan's cogent and thoughtful opinion, we reject the arguments of the Division and the Law Guardian.

1Defendant L.R. is the father of P.L. The parental rights of defendant R.W., the father of the other child, S.W., were terminated by way of an abandonment theory; this aspect of the judgment has not been appealed.

2Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

3In re Guardianship of K.H.O., 161 N.J. 337 (1999).