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In re Guardianship of K.H.O.

August 03, 1999


On certification to the Superior Court, Appellate Division, whose opinion is reported at 308 N.J. Super. 432 (1998).

The opinion of the court was delivered by: Handler, J.

The brief life story of this child, K.H.O., brings into sharp focus those circumstances that will impel the courts to terminate parental rights as a basis for a child's adoption. Determining when such termination is appropriate requires consideration of the statutory standard based on the best interests of the child. N.J.S.A. 30:4C- 15.1(a).

The New Jersey Division of Youth and Family Services brought this termination action against the biological mother of K.H.O. The complaint was based on the statutory standards that codified this Court's decision in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591 (1986). That standard, considered also in the companion case In re Guardianship of DMH, __ N.J. __ (DMH (II)), decided today, encompasses several criteria to determine the best interests of the child. The application of that standard in this case raises the issue of whether this child's drug addiction at birth, caused by the mother's prenatal drug use, endangered the health and development of the child. It also requires the Court to consider the legal effect of the mother's continuing inability to care for her child. Additionally, the application of this standard underscores the difficulties courts face in comparing the harm to the child that results from severing biological ties upon the termination of parental rights with the benefits of adoption.


K.H.O. was born on August 31, 1993, suffering from heroin withdrawal, cleft palate syndrome, and respiratory difficulties. Her mother, B.A.S., had used drugs while pregnant. Following the birth of K.H.O., B.A.S. was referred to a drug treatment facility. She failed to complete that program. Since that time, B.A.S. has, without success, entered numerous drug treatment programs and undergone many psychological and substance-abuse evaluations provided by the Division of Youth and Family Services (DYFS). *fn1 Throughout K.H.O.'s young life, B.A.S. has continued to use drugs.

K.H.O. spent the first month of her life in the hospital. On September 29, 1993, her mother voluntarily placed her in foster care, and K.H.O. moved directly from the medical facility to her foster home. When K.H.O. was originally placed in foster care, her placement was treated as temporary. DYFS investigated various placement options for the child, including family members and friends of the biological mother. All were either unavailable or not suitable.

Despite her initial exposure to drugs, K.H.O. is healthy and appropriately developed for her age. She has had two successful surgeries to correct her cleft palate; she has a moderate hearing impairment. Since being placed in foster care nearly six years ago, K.H.O. has resided with the same foster family and has a close, loving relationship with her foster parents. Although the foster family is white and K.H.O. is black, the foster parents are aware of the problems facing interracial families; they participate in a program for interracial families and have two black foster children. K.H.O. also has a positive relationship with her biological mother.

In August 1996, DYFS filed an action under N.J.S.A. 30:4C-15.1(a), seeking to terminate B.A.S.'s parental rights so that K.H.O.'s foster parents could adopt her. B.A.S. contested the proposed adoption. The biological father, D.O., did not appear in the action and a default judgment was entered against him. The Superior Court, Chancery Division, appointed counsel for B.A.S. and a law guardian for K.H.O. The court also ordered substance abuse, psychological, and bonding evaluations to be conducted by a court-appointed expert.

The trial was held on March 17, 1997. B.A.S.'s DYFS caseworker and K.H.O.'s guardian both recommended that B.A.S.'s parental rights be terminated. The law guardian testified to the "very loving" relationship between K.H.O. and her foster family. The court-appointed psychologist, Dr. Sherwood Chorost, was unable to testify. In his initial report, dated January 2, 1997, Dr. Chorost identified the foster mother as K.H.O.'s "psychological parent." In his final report, he recommended that "the children be freed for adoption." The expert's written reports, together with the entire DYFS caseworker file, consisting of thirty eight documents, were entered into evidence. At the hearing, B.A.S. stated through her lawyer that she was "not really capable" and "needed more time" to take custody of K.H.O.

The court determined that the initial harm caused to K.H.O. in utero by her mother's drug use was sufficient to meet the first element of the best interests standard and that K.H.O. would suffer irreparable harm as a result of separation from her foster parents, meeting the fourth element of the test. On March 31, 1997, the trial court terminated B.A.S.'s parental rights under N.J.S.A. 30:4C-15.1(a) and committed K.H.O. to the guardianship, care, custody and control of DYFS. The Appellate Division reversed and remanded, holding that neither the first nor the fourth prongs of the best interests standard had been met in this case. 308 N.J. Super. 432 (1998). This Court granted DYFS's petition for certification. 156 N.J. 405 (1998).

Following the appeal to the Appellate Division, which directed a remand, psychological and bonding evaluations of K.H.O., B.A.S. and K.H.O.'s foster family were conducted in October 1998. Dr. Ronald Silikovitz, a psychologist retained by Legal Services on behalf of B.A.S., and Dr. Elayne Weitz, a psychologist retained by DYFS, both made findings and recommendations that substantially confirm those of Dr. Chorost. *fn2 The psychologists both believed that the biological mother would not be able to provide a suitable home for K.H.O. and that K.H.O. would suffer significant and enduring harm if she were separated from her foster family. The experts found that K.H.O. had a positive relationship with her biological mother, but that her foster parents were her psychological parents. Both psychologists recommended adoption, but strongly suggested that continued contact between K.H.O. and B.A.S. be permitted.


A parent's right to enjoy a relationship with his or her child is constitutionally protected. In re Adoption of Children by L.A.S., 134 N.J. 127 (1993); A.W., supra, 103 N.J. at 599; Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). The fundamental nature of the parent-child relationship, the permanency of the threatened loss, and the complexity and subjectivity involved in evaluating parental fitness combine to define the nature of this right and the protections required to secure it. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).

We fully recognize the fundamental nature of parental rights and the importance of family integrity. The 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." N.J.S.A. 30:4C-1(a). The protection of parental rights continues when a child is placed in foster care. In re Guardianship of J.C., 129 N.J. 1, 9 (1992). We have consistently imposed strict standards for the termination of parental rights. See id. at 10; In re Guardianship of K.L.F., 129 N.J. 32 (1992); A.W., supra, 103 N.J. 591. Presumptions of parental unfitness may not be used in proceedings challenging parental rights, L.A.S., supra, 134 N.J. at 132, and all doubts must be resolved against termination of parental rights. In re Adoption of D., 61 N.J. 89, 93 (1972).

Parental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children. J.C., supra, 129 N.J. at 10. 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. That standard provides that parental rights may be terminated upon a showing that:

"(1) The child's health and development have 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 foster parents ...

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