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New Jersey Division of Youth and Family Services v. R.B.


November 8, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-212-06.

Per curiam.



Submitted October 29, 2007

Before Judges Lintner, Graves and Sabatino.

In this appeal, R.B., the fifty-four-year-old biological father of a four-year-old girl ("A.B."), seeks review of a final judgment of guardianship in favor of the Division of Youth and Family Services ("DYFS") entered by the Family Part in January 2007. The judgment was rendered after a three-day trial.

The child's biological mother, Z.S., is in her twenties. Z.S. and R.B. never married. They had two children together: A.B., who was born in May 2003, and a younger son, J.B., who was born in April 2005. R.B. has five adult children from other relationships.

DYFS first became involved with the parties in March 2004. It received a report that A.B., then ten months old, had been left alone by her mother in the back of a taxi, along with a diaper bag containing cocaine and drug paraphernalia. Subsequently, DYFS determined that R.B. had a twenty-five year history of drug and alcohol abuse, had recently failed a drug screen, and had domestic violence and anger management issues.

Because neither parent was then able to care for A.B., DYFS placed her with her maternal grandmother, G.S.O. The child has been in G.S.O.'s care in the ensuing three years. G.S.O. now wishes to adopt her.

In August 2005 DYFS temporarily took custody of A.B.'s brother, J.B., because of Z.S.'s unstable circumstances and her addiction to cocaine. Since that time, however, Z.S. has substantially addressed her substance abuse problems, and she regained custody of J.B. She and J.B. moved in with her mother and A.B., where they continue to reside.

Meanwhile, R.B. attempted to address his problems of substance abuse and angry behavior, but he was not successful. He was admitted to an outpatient substance abuse program with the Department of Veterans Affairs ("VA") in November 2004. However, the VA reported in September 2005 that he had failed to complete treatment and was not even "minimally compliant." For his anger management issues, DYFS referred R.B. in July 2004 to a program known as "Men of Peace." He was expelled from that program in November 2005 for excessive absences. That same month, R.B. tested positive for cocaine. Although R.B. intermittently worked as a truck driver and on a loading dock, an evaluation performed by Catholic Charities in July 2006 showed that he was then unemployed and without a drivers license. He was living at his sister's house, although hoping to move into his own apartment.

Because R.B. continued to have substance abuse and behavioral problems, and also lacked his own housing and a steady job, DYFS determined that he was not a suitable caretaker for his daughter. However, DYFS did arrange weekly supervised visits between R.B. and his two children, at a facility known as the Tri-City Peoples Corporation ("Tri-City"). As of the time of trial, over thirty such visits had taken place. According to Tri-City's case manager, the children positively interacted with their father during those visits.

Consequently, DYFS sought the termination of the parental rights of both Z.S. and R.B. to their daughter. Z.S. did not challenge DYFS' action, having previously made a voluntary surrender of A.B. to G.S.O. However, R.B. did contest the matter, and the case proceeded to trial in December 2006. DYFS presented testimony from a case manager, G.S.O., and an expert witness, Dr. Barry Katz, a psychologist. R.B. testified on his own behalf, and also presented expert testimony from another psychologist, Dr. Ronald Silikovitz.

After hearing three days of testimony, Judge James Rothschild issued a forty-two page opinion on January 9, 2007, concluding that DYFS had established, by clear and convincing evidence, the grounds for termination of R.B.'s parental rights concerning A.B. This appeal by R.B. ensued.

It is well established that when seeking the termination of a parent's rights under N.J.S.A. 30:4C-15.1a, DYFS has the burden of establishing, by clear and convincing proof, the following standards:

(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) [DYFS] 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. [N.J.S.A. 30:4C-15.1a. See also N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]

The termination of a parent's right to raise his or her child is a matter of constitutional magnitude. See In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); see also In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992).

We bear in mind that our standard of review in cases of this nature is circumscribed. As the Supreme Court recently reaffirmed, the "[r]review of a trial court's termination of parental rights is limited." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). "A reviewing court should uphold the factual findings undergirding the trial court's decision [in a DYFS termination case] if they are supported by 'adequate, substantial and credible evidence' on the record." Id. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Even where the focus of appeal is upon the trial judge's evaluation of the record and the implications to be drawn from it, reviewing courts still are obligated to "accord deference unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" Ibid. (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). Additionally, we customarily do not second-guess the factual findings of judges, particularly judges in the Family Part, given the Family Part's expertise in matters that involve domestic relations and the welfare of children. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

On appeal, R.B. does not challenge the trial judge's finding that the first and third prongs of the statutory four-part test, N.J.S.A. 30:4C-15.1a(1) and (3), are satisfied here. Rather, R.B. argues that the proofs were insufficient concerning the other two prongs of the statute. He contends in this regard that DYFS failed to prove that termination of his parental rights would do A.B. no more harm than good; that he was unwilling or unable to eliminate the harm to A.B.; and that a delay in the permanent placement of A.B. would cause her harm. See N.J.S.A. 30:4C-15.1a(2) and (4). R.B. maintains that there was credible evidence at trial that he and A.B. share a loving attachment, and that A.B. would be permanently harmed by the loss of a relationship with him as her father. He further argues that, in general, the current legal processes for the termination of parental rights are fundamentally unfair because they rely on allegedly-inadequate methods of evaluation that are institutionally biased against the parent.

Having considered R.B.'s contentions in light of the record as a whole, we affirm the judgment of the Family Part, substantially for the reasons expressed in Judge Rothschild's comprehensive and well-supported written opinion. We add only a few comments.

Although the trial judge did not credit all aspects of the testimony of the State's expert, Dr. Katz, the trial judge was persuaded by Dr. Katz's particular opinions that R.B. was not presently fit to care for his daughter and that he was in denial of his failures to become fit to do so. The judge also credited Dr. Katz's view that G.S.O. had capably assumed the role of A.B.s "psychological parent," and that taking A.B. away from her grandmother, at this juncture, would be "traumatic and devastating." These very relevant opinions are not seriously rebutted by the testimony of the defense expert, Dr. Silikovitz.

The main area of disagreement between the parties' experts concerned the nature of A.B.'s relationship with her father. Dr. Katz determined, from his brief observation of A.B.'s interactions with her father, that she was not attached to him and that she would not be harmed if his parental rights were terminated. Dr. Silikovitz disagreed, relying in part on the favorable interactions between R.B. and A.B. documented by Tri-City during the supervised visits.

Judge Rothschild was keenly mindful of the experts' disagreement, and, in fact, adopted Dr. Silikovitz's assessment that father and daughter had indeed bonded. Nonetheless, taking into account the very strong bond between A.B. and her grandmother, and R.B.'s persisting history of drug abuse and instability, the judge concluded that the best interests of this child would be served by termination and giving A.B. a permanent home with G.S.O. There is more than ample credible evidence in the record to support that ultimate conclusion.

Although Judge Rothschild acknowledged that R.B. is a "well meaning man," the judge also found that R.B.'s "credibility is diminished by his tendency to downplay his weaknesses as he strives to prevail in this matter." The trial revealed R.B. to be only a "little better off than he was a year ago," and that he is "not yet stable enough to insure a permanent home" for his child. Consequently, the judge determined that it would be "too risky" to plan to return A.B. to R.B.'s custody, given R.B.'s continued inability to overcome the substance abuse and other problems that have plagued him for more than fifteen years. On the other hand, the judge was impressed by the strong bond between A.B. and her grandmother. He found that "[t]here is no real doubt that severance of that relationship would cause long-term, devastating damage." The judge also was convinced that A.B., who has lived almost three quarters of her life with her grandmother, "needs permanency." We are convinced that the judge's meticulous weighing of all of these considerations was supported by credible evidence and should be sustained.

We also reject R.B.'s argument that he was deprived of fundamental fairness because of the manner in which DYFS termination cases are generally litigated. If we were to accept his claim that the expert witnesses in such matters become too captive to their client's objectives, that would require us to discount the only expert in this case who opposed termination, Dr. Silikovitz. Moreover, as we have already noted, Judge Rothschild did not accept the opinion of DYFS's expert, Dr. Katz, wholesale, but instead sifted through those aspects of his testimony that were persuasive and those that were not. The judge properly took into account the limitations of the experts' clinical evaluations, and analyzed the case with his own independent feel for the proofs. His forty-two page opinion reflects such detailed analysis. In short, there was nothing "fundamentally unfair" in the manner in which R.B.'s parental rights were tried and adjudicated.


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