On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FG-17-35-06.*fn1
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2007
Before Judges Gilroy andBaxter.
J.B.B. is the natural mother of baby boy J.J.B. (Jason), born April 19, 2004, and T.J.B. (Trevor)*fn2 , born January 4, 2006. M.W. is the biological father of Jason. J.B. is the biological father of Trevor. The three parents appeal separately*fn3 from the December 21, 2006 order of the Family Part, terminating their parental rights to the children. We affirm. Because each defendant's appeal is fact sensitive, we first set forth the core facts and procedural history. We will address other facts as necessary when discussing each of the appeals.
Approximately two months after Jason's birth, M.W. was arrested and charged with sexual assault of an unrelated minor child. On December 15, 2004, M.W. was indicted for aggravated sexual assault, N.J.S.A. 2C:14-2a; sexual assault, N.J.S.A. 2C:24-2c; and endangering the welfare of a child, N.J.S.A. 2C:24-4a. On January 10, 2005, M.W. pled guilty to the endangering charge and the State dismissed the remaining charges. On May 3, 2005, M.W. was sentenced to a term of imprisonment for five years. M.W. is a registered sex offender who has neither lived with, nor supported, Jason.
Following M.W.'s arrest, J.B.B. and Jason resided in the single-family home of J.B.B.'s parents. In August 2004, the New Jersey Division of Youth and Family Services (DYFS), responding to a telephone referral, inspected the grandparents' dwelling. The caseworker found the home in a deplorable condition with roaches throughout the house, including the child's crib, refrigerator, washer and dryer. The home contained a strong odor of animal urine and excrement, with dog feces lying on the floor. An inspection of the refrigerator disclosed that it contained rotten food. The caseworker observed J.B.B. lying with a dog on a bed in a rear bedroom, both covered with fleas and gnats. At the request of the caseworker, the occupants cleaned the home by removing feces from the floor, bleaching and sanitizing the kitchen, and separating and placing food into sealed containers. However, on re-inspection the same day, the caseworker observed the basement was still infested with gnats and insects.
DYFS recommended that J.B.B. and her mother receive parenting instruction and that all residents of the household undergo psychological evaluations. In November 2004, DYFS arranged for Family Preservation Services (FPS) to provide counseling and support services for J.B.B. and her family. Generally, FPS would provide counseling and support services for a period of four to six weeks. However, FPS terminated its services after three sessions, totaling seven hours during the course of one week, because of the extreme, unsanitary conditions of the home. Because J.B.B. and her mother failed to fully respond to the health problems confronting the family, FPS recommended that Jason be removed from the home. On November 19, 2004, J.B.B. signed a fifteen-day consent, permitting DYFS to remove Jason for placement with his maternal aunt, A.P. On November 29, 2004, J.B.B. executed a six-month consent, continuing Jason's out-of-home placement with his maternal aunt. After Jason had been placed with his aunt, J.B. moved into J.B.B.'s parents' home. J.B. and J.B.B. married on November 11, 2005.
On August 24, 2005, DYFS filed a complaint against J.B.B., M.W. and J.B.B.'s parents, alleging that they had abused and neglected Jason. On September 6, 2005, DYFS added J.B. as an additional defendant because, even though he was not the biological father of Jason and Trevor had not yet been born, J.B. was viewed as a caretaker for Jason because of his relationship with J.B.B. At the permanency hearing on November 15, 2005, J.B.B. stipulated to having abused and neglected Jason, in violation of N.J.S.A. 9:6-8.21c(4), due to the unsanitary condition of the home and to having placed Jason's physical, mental, and emotional welfare in eminent danger of impairment because of her failure to exercise a minimum degree of care. On that day, an order was entered, directing that Jason continue in his current residential placement; and that DYFS provide services to the family, conduct a re-evaluation of his maternal grandparents' home and an evaluation of J.B.B.'s cousins' home, where J.B.B. was then residing. The grandparents' home was re-evaluated and was not approved. DYFS also inspected the cousins' home and found it inappropriate for Jason because of the lack of room and the number of persons living in the home.
In the interim, J.B.B.'s parents' home was inspected by the Salem County Department of Health. On June 14, 2005, the inspector noted: 1) numerous flies throughout the home; 2) evidence of roach infestation, with dead roaches and droppings noted throughout the home; 3) piles of clothes in all bedrooms; and 4) a strong dog odor, with three dogs being kept in the basement. It was the inspector's opinion that flies were "breeding in the basement due to dog feces and urine." After DYFS arranged for treatment of the home by an exterminator, the premises were re-inspected by the Salem County Department of Health on December 21, 2005. The inspector noted: 1) dog feces on the ground; 2) uncovered trash cans; and 3) evidence of rats on the property. Similar findings were made during other inspections on January 24, 2006, and April 28, 2006.
Following the birth of Trevor, DYFS applied for an order to show cause (OTSC), seeking custody of Trevor, because of J.B.B. and J.B.'s lack of stable housing and because Trevor required specialized care for breathing problems developed at birth. On January 23, 2006,*fn4 an order was entered, placing Trevor in the immediate custody, care, and supervision of DYFS and directing his parents to show cause why his care and supervision should not continue in the custody of DYFS. After Trevor was discharged from the hospital following his birth, he was transferred, pursuant to the OTSC, to the Dooley House, which is a twenty-four-hour care facility, for medically fragile children. On February 7, 2006, an order was entered continuing the placement of Jason with his maternal aunt and the placement of Trevor at the Dooley House. The order also directed that J.B.B. and J.B. attend in-home parenting skills training with Famcare and that DYFS schedule a psychological evaluation for J.B. within fourteen days.
After Trevor's birth, FPS again commenced providing support services to the family. Supervised visitation was arranged for J.B.B., J.B.B.'s mother, and J.B., with both Jason and Trevor. Although initially describing the parenting classes she had attended at Rowan University as "stupid," J.B.B., J.B., and J.B.B.'s mother did complete parenting classes provided by DYFS through the Southwest Council, Inc.
On March 31, 2006, DYFS filed a complaint for guardianship of J.B., seeking to terminate the parental rights of J.B.B. and M.W. to Jason. On September 5, 2006, DYFS filed an amended complaint for guardianship, seeking also to terminate the parental rights of J.B.B. and J.B. to Trevor.
A termination trial was conducted on December 18, 2006, and December 20, 2006. Testifying at the trial on behalf of DYFS were: Michelle Peterson and Richard Exter, DYFS caseworkers; Nicole Dolbin, a DYFS adoption worker; and Dr. Joanne Schroeder, a clinical psychologist. Testifying on behalf of J.B.B. were: J.B.B.'s mother; J.B.B.'s aunt, A.P.; and Dr. Kenneth Goldberg, a psychologist. The only other witness who testified at the hearing was J.B. On December 21, 2006, Judge Vincent Segal rendered an oral opinion, terminating the parental rights of the three defendants to Jason and Trevor, concluding that DYFS had proven by clear and convincing evidence the four prongs of the "best interests of the child" standard, N.J.S.A. 30:4C-15.1a.
The court first addressed M.W. and J.B.B.'s parental rights to Jason. As to M.W., the court determined that he was not a suitable caretaker for the child because he is a convicted sex offender, in prison for a long period of time, and has an uncertain future.
As to J.B.B., the court determined that: 1) J.B.B. had endangered Jason's safety, health and development by allowing him to reside in an uninhabitable home for six months; 2) J.B.B. "is unable, due to her limited intellectual abilities, to eliminate the harm facing [Jason]. And by herself could never provide a safe and secure home for him;" 3) there is a need for Jason to have permanency in a stable and safe environment, and "separating [Jason] from his foster parents would cause serious, enduring, emotional and psychological harm"; 4) no one other than perhaps Jason's maternal aunt qualified as a caretaker, but she had eliminated herself from serving in that position when she turned Jason away at the request of her husband; 5) although DYFS had provided numerous services to J.B.B., her "limitations are such that the services in the long run will not make any difference with respect to her ability to parent her children;" and 6) "[w]ithout a doubt termination of parental rights will not do more harm than good. [Jason] has stability, security, and permanency with his foster parents. He has none of these with [J.B.B.] and cannot have them with his father." As to this last finding, the judge also stated, "[Jason] is a child with special needs, requiring added care. [J.B.B.] cannot provide that care and the adults around her simply do not comprehend the extent of her shortcomings."
As to J.B.B. and J.B.'s parental rights to Trevor, the court determined that: 1) Trevor had other issues that needed to be addressed; 2) J.B.B. cannot properly provide for the child's safety, health, and development because of her intellectual limitations; 3) J.B. is not a qualified caretaker, having lived in J.B.B.'s parents' home for approximately one year in an unsanitary home, not having supporting Trevor since birth, and not having taken any positive steps to move Trevor out of foster care during the past year; 4) if J.B. was to "ever to qualif[y] as [Trevor's] caretaker it would be in the far distant future" and Trevor cannot wait forever, having never lived with his parents; 5) "[a] bond [was] developing between Trevor and his foster mother, and unless she is replaced by a competent, caring alternative, [Trevor] may be emotionally and psychologically harmed;" 6) alternative caretakers have neither been found, nor been suggested by either parent; and 7) termination of parental rights will not do more harm than good because Trevor has not had a relationship "to speak of with his birth parents."
A confirming order was entered the same day. The three defendants appeal. Contrary to the appellants, the Law Guardian supports the decision below.
Termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Such actions require proof by clear and convincing evidence. Div. of Youth & Family Servs. v. L.C., 346 N.J. Super. 435, 439 (App. Div. 2002). Termination actions brought under N.J.S.A. 30:4C-15.1a are decided under a four-part "best interests of the child" standard, first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-611 (1986) and now codified in N.J.S.A. 30:4C-15.1a. Under that standard, parental rights may be terminated only when:
(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 [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.
The four prongs of the best interests test "are neither discreet nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005). The considerations are fact sensitive. N.J. Div. of Youth & Family Servs. v M.M., 189 N.J. 261, 280 (2007).
On appeal, factual findings and conclusions of the trial judge are generally given deference, especially "when the evidence is largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." F.M., supra, 375 N.J. Super. at 259. Accordingly, "an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "The appellate court should 'exercise its original factfinding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter.'" Ibid. (quoting Rova Farms, supra, 65 N.J. at 484). However, our obligation to defer to the trial court "does not extend to issues of law." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006).