On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, FG-03-23-98.
Before Judges King, Coburn and Axelrad.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 20, 2000
In this caption and opinion, we use fictitious names. The Division of Youth and Family Services (DYFS) appeals the trial judge's decision which ordered the return of the minor child, Joan, to her birth father's custody (defendant). Joan, now age nine, and her sister Nadia, now age thirteen, were removed from their father's custody following alleged abuse of Nadia by her father. These allegations included hitting Nadia with a belt, kicking her, and making her do pushups. The two sisters were removed from the household and placed in foster care together.
At the conclusion of two years of foster care, DYFS decided to pursue termination of the father's parental rights and seek adoption of the girls by their foster mother. Subsequent to DYFS's decision, the defendant birth father surrendered his parental rights to Nadia, but continued to maintain visits with Joan and seeks the return of Joan to the parental household. Counseling and psychological evaluations ensued, and eventually a trial.
The trial judge ruled that defendant's surrender of his parental rights to Nadia's custody was knowing, voluntary, and binding. However, the trial judge denied DYFS's application for termination of parental rights as to Joan, and ordered her return to her father. DYFS moved for a stay which we granted pending accelerated argument on December 20, 2000. The father does not cross-appeal from the termination decision as to Nadia.
DYFS asserts that the judge's decision as to Joan was against the weight of the evidence, even recognizing its clear and convincing burden of proof in termination of parental rights cases. We disagree and affirm the denial of termination of the birth- father's parental rights for the reasons given by Judge Thomas S. Smith, Jr., in his comprehensive 35-page written opinion. We find that the record amply supports his decision, given DYFS's heavy constitutional burden of proof in the matter. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599, 603, 606-17 (1982). This substantial burden of proof, plus our historic appellate respect for the fact-finder, compels our affirmance in this very troublesome case. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974); see State v. Locurto, 157 N.J. 463, 470-71 (1999); In re Taylor, 158 N.J. 644 (1999); State v. Johnson, 42 N.J. 146, 157 (1964).
On the issue of termination of parental rights as to Joan, the judge referred to N.J.S.A. 30:4C-15 and 15.1(a) and New Jersey Div. of Youth and Family Serv. v. A.W., 103 N.J. 591 (1986).
Both the case law and the statute require satisfaction of the "best interests of the child" test, by clear and convincing evidence, before termination of parental rights can occur. The four-prong test requires DYFS to prove:
(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 foster 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 ...