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New Jersey Division of Youth and Family Services v. J.K.


November 13, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. FG-02-72-06.

Per curiam.



Submitted October 22, 2007

Before Judges Stern, Collester and C.S. Fisher.

J.D.K., whose interests are in issue in the appeals before us, was born on July 1, 2004. His biological mother is defendant R.L.,*fn1 and his biological father is defendant J.K. Because both R.L. and the child tested positive for opiates at the time of his birth, the hospital would not permit J.D.K.'s release and contacted the Division of Youth and Family Services (the Division). Since that time, J.D.K. has been in the Division's custody and since December 9, 2005 has been in the care of his maternal aunt.

The Division commenced this action for a termination of defendants' parental rights on July 8, 2004.*fn2 A trial was conducted on November 14 and 15, 2006. Based upon factual findings and conclusions of law contained in his written decision, the trial judge concluded that defendants' parental rights should be terminated. Defendants filed appeals, which we consolidated, and have argued there was insufficient evidence to support the judge's findings. We reject those contentions and affirm.

In his decision, the judge correctly recognized that to obtain a termination of parental rights, the Division must prove by clear and convincing evidence that:

(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 . . .;

(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.

[N.J.S.A. 30:4C-15.1(a).]

See also N.J. Div. of Youth & Fam. Serv. v. A.W., 103 N.J. 591, 604-11 (1986).

In applying this test, we initially observe that the risk of harm envisioned by the statute's first prong is that which has "continuing deleterious effects" on the child. In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999). This includes not only actual harm caused to the child, but also the risk of harm to the child in the foreseeable future. A.W., supra, 103 N.J. at 607; see also N.J. Div. of Youth & Fam. Servs. v. A.G., 344 N.J. Super. 418 (App. Div.), certif. denied, 171 N.J. 44 (2002). We are satisfied that the judge was presented with considerable evidence to support his finding on this prong by the clear and convincing evidence standard.

The record is replete with evidence that both parents were abusing drugs before and during R.L.'s pregnancy. R.L.'s substance abuse problem, as we have observed, led to the child being born with opiates in his system and warranted his being classified as medically fragile. Notwithstanding the effect of her addiction on J.D.K., defendant R.L. continued to abuse drugs after the child's birth. For example, although R.L. completed an intensive outpatient drug program in October 2005, she tested positive: for morphine on numerous occasions the following month; for amphetamines on February 8, 2006; and for opiates and alcohol on April 10, 2006. The record also reveals that the Division had planned to reunite mother and child in June 2005 but could not go forward with that plan because of the state of R.L.'s drug treatment, her refusal to acknowledge J.K.'s relapse into drug use, and her refusal to remain separate from J.K. so that J.D.K. could be returned to a safe and stable environment.

As for J.K., the record reveals that, in September 2005, he missed almost all his sessions with his addiction recovery program and was discharged for non-compliance in October 2005. On October 27, 2005, he and R.L. both submitted to urine screens prior to a court hearing, and both tested positive for morphine. That same day, the trial court entered an order accepting the goal of termination of parental rights followed by adoption, correctly observing that the child had "been in placement for 15 months and although the mother has been compliant with substance abuse treatment she continues to protect and defend the father who remains non-compliant."

J.K. commenced treatment in an inpatient drug program in December 2005, with a projected completion date in December 2006. He was still in that program when the trial in this matter concluded in November 2006. Although this suggests some progress in his battle with substance addiction, J.K.'s more recent efforts did not commence until approximately seventeen months after the child's placement in foster care.

These and other circumstances contained in the record fully supported the trial judge's conclusion that the first prong of the statutory test was clearly and convincingly proven.

The second prong required an inquiry into whether "[t]he 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." N.J.S.A. 30:4C-15.1(a)(2). In other words, the trial judge was required to determine whether "it is reasonably foreseeable" that the parent could cease to inflict or expose the child to harm. A.W., supra, 103 N.J. at 607. Here, the same evidence that revealed the potential for harm to the child in the foreseeable future, as related to the first prong, greatly informed the judge's finding in favor of termination on the second prong. Accord In re Guardianship of D.M.H., 161 N.J. 365, 378-79 (1999).

We are also satisfied that there was substantial evidence from which the judge could conclude that the Division made reasonable efforts to assist the defendants in remedying the circumstances and conditions that led to the placement of the child outside the home, as required by the third statutory prong. Here, the Division provided for their visitation of the child during the course of this litigation. The Division also arranged for psychological and parenting evaluations, random urine screening and substance abuse assessments. Its efforts to unify mother and child were thwarted by the uncertainty surrounding the mother's continuing battle with substance abuse and her continuing relationship with J.K.

The fact that the Division's efforts failed to ameliorate the parents' problems is not decisive. The matter is judged not by the success of the Division's efforts but by whether those efforts may be deemed reasonable. Id. at 393.

Defendants also contend, in the context of this prong, that the trial judge failed to adequately consider alternatives to termination, such as long term foster care or kinship legal guardianship. The former may not be applied here because the Legislature repealed long term foster care as an option. L. 2004, c. 130, § 128. And kinship legal guardianship is only available when "adoption is neither feasible nor likely." N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 508 (2004). Here, the child's foster parent has committed to adopting him.

As a result, we conclude there was sufficient evidence from which the judge could reach his determination that the third prong was met.

The fourth prong requires a finding that the "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). As we observed in N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004), this prong shifts the emphasis "from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being" (citations omitted). A child must not be "held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." Ibid.

In this regard, the record reveals that J.D.K. has found a secure and nurturing home with his maternal aunt and his two half-siblings. Expert testimony revealed that J.D.K. views his aunt as his psychological parent and that his best interests will be advanced if he remains permanently in this home. The trial judge was entitled to conclude from the evidence he found clear and convincing that J.D.K. needs permanency and that the termination of defendants' parental rights would enhance that need. Accordingly, we are satisfied that the judge's conclusion that the termination of defendants' parental rights would not do more harm than good is amply supported by the record.

The standard of review applicable to this case does not permit our second-guessing of the judge's findings. Instead, we are required to determine whether the judge's findings were supported by credible evidence. We conclude that there is more than ample support for the judge's findings and that they are, thus, deserving of our deference. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).


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