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Division of Youth and Family Services v. R.G.


November 7, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FG-16-24-06.

Per curiam.



Submitted September 11, 2007

Before Judges Yannotti and Le Winn.

These consolidated appeals arise from the September 21, 2006, final order of the Family Part terminating both defendants' parental rights to the minor child, S.S., born September 15, 2004. D.S. is the natural mother and R.G. is the natural father of S.S. Review of the extensive record convinces us that the trial judge's findings of fact and conclusions of law were clearly based on substantial credible evidence of record and satisfy the statutory factors governing termination of parental rights. N.J.S.A. 30:4C-15.1a.

The pertinent trial evidence is summarized as follows. S.S. was removed from the custody of her natural mother, D.S., and placed in foster care in November 2004, at the age of two months. D.S. has had prior involvement with the New Jersey Division of Youth and Family Services (hereinafter DYFS"). This prior involvement included a psychological evaluation in July 2004 litigation that concluded D.S. was incapable of caring for the children involved in that matter.*fn1 Given the nature and extent of DYFS's prior involvement with D.S. and her five other children, that agency became immediately involved with S.S. upon learning of her birth. Upon S.S.'s placement in foster care, DYFS made several efforts to arrange visitation for D.S. However, as the trial judge noted in his decision, the evidence established that D.S. availed herself of the opportunity for visitation with S.S. on only three occasions, and never at her own volition.*fn2

The true identity of S.S.'s natural father was not revealed until some months after the child's birth. R.G. was incarcerated at that time and has remained incarcerated for much of the time since S.S.'s birth; he was, in fact, incarcerated at the time of trial below. R.G. has prior convictions for drug offenses and endangering the welfare of a minor.*fn3 It is undisputed that he has never visited or even seen S.S. Even when he was out of prison between December 2004 and September 2005, R.G. made no effort to establish a relationship with S.S. His explanation for this was that he had "no number" at which to contact DYFS. However, DYFS workers testified that they had gone to the address he had given them, that of his grandparents, and had left papers for him there. R.G.'s explanation for not having timely received those papers was that, when he was not incarcerated, he would be out "running the streets" sometimes for two days at a time, and his grandmother would give him his mail when he called her. When he finally did obtain the DYFS notices, he still made no efforts to contact their office.

For her part, D.S has been convicted of second-degree robbery. As of the time of trial, she faced a five-year sentence with a requirement to serve 85% of that term before parole eligibility.

At the outset of trial, both parties acknowledged their inability to take custody of and care for S.S. The parties jointly requested that S.S. be placed in the care of D.S.'s maternal aunt, Sheila McClam. However, Ms. McClam was rejected by the trial court following a DYFS report that, when three of D.S.'s other children had been in Ms. McClam's custody, they were "very thin," with at least one child showing two black eyes; Ms. McClam had refused to allow the children to speak to the DYFS worker, and, as the trial judge found, upon their removal from Ms. McClam's custody, "all three children had belt buckle marks on their backs and legs and Ms. McClam's explanation was that they beat each other."

Another proffered relative resource, D.S.'s maternal aunt, Windella Canty, was rejected by DYFS in March 2006 because the Family Part had already approved foster care placement. DYFS advised Ms. Canty of her right to request review of that decision and to request visits with S.S. However, DYFS records reflect Ms. Canty never pursued either of these rights.

As of the time of trial, S.S. had been in the custody of the same foster parents for almost two years. Dr. Frank Dyer, a licensed psychologist, conducted a bonding evaluation and testified that S.S. has been "flourishing" in her current placement and the foster parents are "committed to this child's welfare." According to Dr. Dyer, S.S. has clearly formed a specific attachment to the foster parents and "disruption" of that attachment "would produce a loss that would have extreme negative psychological consequences for her." He said that the "loss" would include "impaired self-esteem, impaired basic trust, and an impaired capacity to form new attachments to others in the future." He added that there is "no other figure in this child's life at the present time to take the place of her attachment figures," noting that D.S. and R.G. are both "complete strangers to this child."

When considered in this factual context, the trial court's decision is unassailable. As our Supreme Court has noted, as a matter of general principle, parental rights are fundamentally important, but not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Where the safety and welfare of children are at risk, the State as parens patriae may step in to protect such children from serious physical and emotional harm, even to the point of partial or complete termination of the parental relationship. The guiding principle in such matters is the best interests of the child. Ibid.

A party seeking to terminate a natural parent's rights to his/her child must demonstrate by clear and convincing evidence the existence of a serious risk of lasting harm to the child so severe as to require severance of parental ties. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The best interests of the child are determined by the so-called four-pronged statutory test set forth in N.J.S.A. 30:4C-15.1a, to wit:

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 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 alternatives to termination of parental rights; and

4. Termination of parental rights will not do more harm than good.

The trial judge engaged in a lengthy and comprehensive analysis of the controlling legal principles and the application of those principles to the factual record in this case. For example, he noted that the first, second and fourth statutory prongs focus on the issue of harm to the child. The harm "under the first prong must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. The second prong is applied once it has been determined that the child is at risk of serious permanent damage to his/her physical and/or mental well-being, and examines whether the parent has been unable or unwilling to eliminate that risk. The fourth prong addresses whether the termination of a parent's rights will do more harm than good. See In re Adoption of Children by G.P.B., 161 N.J. 396, 404 (1999). The third prong evaluates the efforts undertaken by DYFS to reunite parent and child; where, as here, it appears that DYFS's efforts have been resisted or refused, the "diligence" of such efforts "shall not be measured by their success."

On appeal, D.S. has waived any objection to the trial court's assessment of the first two statutory prongs. The only point raised in her brief is:


The gravamen of her argument is that DYFS conducted an inadequate investigation of available relative resources, namely Ms. McClam and/or Ms. Canty, and that S.S. would be harmed by "the severance of her biological ties with her sisters and brothers."

Regarding the relative resources claim, the trial judge expressly found-and the evidence of record supports-that both Ms. McClam and Ms. Canty had clearly demonstrated their unsuitability as foster parents-Ms. McClam by the evidence of physical abuse of D.S.'s other children temporarily placed in her custody*fn4 , and Ms. Canty by never pursuing visitation or making any other efforts to establish a meaningful relationship with S.S. Neither Ms. McClam nor Ms. Canty was produced at trial to proffer any meaningful alternative to the foster care in which S.S. has thrived for the past two years.

Regarding the "harm" issue related to the fourth prong, D.S.'s argument that termination would adversely affect S.S's relationships with her siblings is specious. Three of S.S's siblings have been placed with the biological father of two of them who lives in Florida. There is no evidence of record to suggest S.S. would, or realistically could, maintain a relationship with siblings she has never met. Nor is there any evidence that either Ms. McClam or Ms. Canty would affirmatively encourage and/or facilitate such a relationship had either of them been awarded care and custody of S.S.

For his part, R.G. here challenges the trial judge's findings on all four statutory prongs. However, as the discussion of the trial evidence has shown, the clear and convincing evidence of record amply supports those findings. R.G. has had absolutely no relationship with S.S. He has never even seen her and has resisted or refused services by DYFS even during his period of non-incarceration. As noted, R.G. conceded his inability to care for the child at the outset of trial. He joined D.S. in proffering primarily Ms. McClam as a relative resource in lieu of the current foster care placement.

The trial judge's analysis of the controlling legal precedents and the application of those principles to the evidence pertinent to R.G., convinces us that clear and convincing evidence supports his decision to terminate R.G.'s parental rights to S.S., in the best interests of that young child.

It is well settled that, in assessing a trial court's application of the best interest test to the facts adduced at trial, an appellate court must give due regard to the findings of the trier or fact who has had the opportunity to observe the witnesses and judge their credibility. In re Guardianship of J.N.H., 172 N.J. 440 (2002). In particular, an appellate court should accord particular deference to a family court's fact finding, in recognition of that court's special jurisdiction and expertise in family matters. Cesare v. Cesare, 154 N.J. 392, 413 (1998).

A trial court's findings will be "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). An appellate court should not overturn the factual findings of a trial judge unless "they are so wholly unsupportable as to result in a denial of justice." Ibid., (citing Fagliarone v. Township of N. Bergen, 78 N.J. Super., 154, 155 (App. Div. 1963).

Based on the foregoing, we conclude neither defendant has presented any persuasive argument that would warrant reversal of the decision on appeal.


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