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New Jersey Division of Youth and Family Services v. S.A.M.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 19, 2007

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
S.A.M., DEFENDANT-APPELLANT, AND S.T.M., DEFENDANT,
IN THE MATTER OF THE GUARDIANSHIP OF N.A.M., R.B.M., AND C.N.M., MINOR CHILDREN.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-36-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 22, 2007

Before Judges Weissbard and Gilroy.

S.A.M., the biological mother of N.A.M., a twelve-year-old girl born June 29, 1994; R.B.M., a ten-year-old boy born August 24, 1995; and C.N.M., a nine-year-old boy born July 3, 1997, appeals from the order of the Chancery Division, Family Part, entered on October 5, 2006, terminating her parental rights to her three children. The order also terminated the parental rights of S.T.M., the children's biological father, who had abandoned the children and defaulted in the action. We affirm.

The New Jersey Division of Youth and Family Services (DYFS) first became involved with S.A.M. and her family in 1998. In August 2000, when S.A.M. was hospitalized at Shoreline Behavioral Hospital, she signed a voluntary placement agreement for N.A.M. and R.B.M. C.N.M. remained in the custody of a family friend. On February 1, 2001, after the voluntary placement agreement expired, DYFS filed a complaint for custody of the three children. On February 22, 2001, an order was entered, directing that N.A.M. and R.B.M. continue under the custody, care, and supervision of DYFS and that C.N.M. be placed in the care and supervision of DYFS, pending further order of court. DYFS was granted custody of C.N.M. at a later date. On October 4, 2002, an order was entered returning the three children to the custody of S.A.M. On January 22, 2003, the action was dismissed.

On June 6, 2003, DYFS filed a second complaint seeking the care and supervision of the children, because it had received several substantiated referrals concerning their safety and welfare. An order was entered the same day granting the requested relief. On February 10, 2004, following substantiation of additional referrals of abuse and neglect, an order was entered awarding DYFS continued care, custody and supervision of the children.

On February 14, 2005, DYFS filed a Title 30 complaint for guardianship seeking termination of both parents' parental rights to the three children. Following the conclusion of the trial on October 4, 2006, Judge Hoffman rendered an oral decision, terminating the parents' parental rights. A confirming order was entered the following day. S.A.M. appeals.

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. N.J. 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.

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

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), certif. denied, 190 N.J. 257 (2007).

On appeal, S.A.M. argues:

POINT I.

THE DECISION TO TERMINATE [S.A.M.'s] PARENTAL RIGHTS WAS AGAINST THE WEIGHT OF SUBMITTED EVIDENCE AND TESTIMONY.

PRONG 1: THE DIVISION HAS NOT SHOWN BY CLEAR AND CONVINCING EVIDENCE THAT THE CHILDREN'S RELATIONSHIP WITH [S.A.M.], IN THE PAST DID[,] OR IN THE FUTURE WILL[,] ENDANGER THEIR SAFETY, HEALTH OR DEVELOPMENT.

PRONG 2: [S.A.M.] HAS ELIMINATED THE PERCEIVED HARM TO HER CHILDREN.

PRONG 3: DYFS DID NOT PROVIDE "REASONABLE" EFFORTS TO REUNIFY THIS FAMILY AS THE CHILDREN'S SPECIAL NEEDS WERE NOT ADEQUATELY ADDRESSED AND SERVICES WERE NOT INSTITUTED APPROPRIATELY.

PRONG 4: TERMINATION OF [S.A.M.'S] PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD TO THESE CHILDREN.

POINT II.

THE LAW GUARDIAN USED A SUBSTITUTED JUDGMENT STANDARD IN REPRESENTING [N.A.M.], [R.B.M.] AND [C.N.M.] WHICH IS OUTSIDE THE SCOPE OF HER ROLE AS COUNSEL FOR THE CHILDREN.

We have considered the arguments advanced by appellant in light of the record, and for reasons expressed by Judge Hoffman in his thoughtful, oral decision of October 4, 2006, we conclude that the evidence clearly and convincingly establishes that the children's best interests, assessed under the statutory standard, N.J.S.A. 30:4C-15.1a, warrants termination of the appellant's parental rights. R. 2:11-3(e)(1)(A). Nevertheless, we add the following comments.

Under Point II, appellant argues that the Law Guardian ignored her role as counsel for N.A.M., R.B.M. and C.N.M. by not advancing their wishes. Appellant contends that the three children have repeatedly expressed their preferences to be returned to their mother, but the record is devoid of any evidence that the Law Guardian conveyed the children's wishes to the court, or suggested a method by which those wishes could be accomplished. We disagree and conclude that the Law Guardian acted in conformance with her statutory appointment.

Initially, the Law Guardian counters that a parent does not have standing to raise the issue of whether a child has received appropriate legal representation in a termination proceeding. Generally, when one questions whether a party has standing in a legal proceeding, the term "refers to the [party's] ability or entitlement to maintain an action before the court." N.J. Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, 409 (App. Div.), certif. granted, 152 N.J. 13 (1997), and appeal dismissed as moot, 152 N.J. 361 (1998). We are satisfied, however, that the same principles of "standing" govern the right of a party to pursue a collateral issue developed during trial on appeal.

To have standing to raise an issue, "a party must have 'a sufficient stake and real adverseness with respect to the subject matter of the litigation.'" Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 81 (app. Div. 2001) (quoting In re Adoption of Baby T., 160 N.J. 332, 340 (1999)). "Standing has been broadly construed in New Jersey as 'our courts have considered the threshold for standing to be fairly low.'" Ibid. (quoting Reaves v. Egg Harbor Twp., 277 N.J. Super. 360, 366 (Ch. Div. 1994)). Although, "a litigant may not [ordinarily] claim standing to assert the rights of a third party," Jersey Shore Med. Ctr. v. Est. of Baum, 84 N.J. 137, 144 (1980), "standing to assert the rights of third parties is appropriate if the litigant can show sufficient personal stake and adverseness so that the [c]court is not asked to render an advisory opinion." Ibid. Such is not the case here.

We reject the Law Guardian's contention by asking the rhetorical question: If not a parent who is directly affected by the court's decision in a termination proceeding, who will raise the issue on behalf of a minor child? We are satisfied that the answer to the question is that any party directly affected by the outcome of the proceeding may assert the claim on behalf of a minor child. In this matter, it was the parent. In other matters, it may be DYFS or the minor child through the appointment of a guardian ad litem.

Law guardians are appointed to represent children in termination cases pursuant to N.J.S.A. 30:4C-15.4b. That statute does not define a "law guardian," but rather refers to the child abuse or neglect statute, N.J.S.A. 9:6-8.21. Under subsection "d" of that statute, a "law guardian" means "an attorney admitted to the practice of law in this State, regularly employed by the Office of the Public Defender or appointed by the court, and designated under this act to represent minors in alleged cases of child abuse or neglect and in termination of parental rights proceedings." N.J.S.A. 9:6-8.21d. The duties of a law guardian in a termination of parental rights proceeding include providing services needed "to help protect [the child's] interests and to help express [the child's] wishes to the court." N.J.S.A. 9:6-8.23a.

In a termination proceeding, a law guardian acts as counsel for the child. In re M.R., 135 N.J. 155, 174-75 (1994). Contrary to a court-appointed guardian ad litem who provides services "to the court," a court-appointed law guardian provides services "to the child." N.J. Div. of Youth and Family Servs. v. R.M., 347 N.J. Super. 44, 69 (App. Div.) (quoting Pressler, Current N.J. Court Rules, comments on R. 5:8A and 5:8B (2002)), certif. denied, 174 N.J. 39 (2002). Accordingly, a law guardian has a duty to "zealously advocate [the child's] cause," In re Adoption of a Child by E.T., 302 N.J. Super. 533, 539 (App. Div.), certif. denied, 152 N.J. 12 (1997), while protecting the child's interests. "Law guardians are obliged to make the wishes of their clients known, to make recommendations as to how a child client's desires may best be accomplished, to express any concerns regarding the child's safety or well-being and in a proper case to suggest the appointment of a guardian ad litem." R.M., supra, 347 N.J. Super. at 70. It is against these principles that we consider S.A.M.'s challenge to the Law Guardian's representation of her children.

We agree that the record does not contain evidence of any statements by the Law Guardian to the court advising that the three children had expressed a desire to return to their mother's custody. If that factor was considered in isolation, one could reasonably conclude that the Law Guardian failed to comply with her statutory duty, i.e., "to help express [the children's] wishes to the court." N.J.S.A. 9:6-8.23a. However, when the record is considered in its entirety, we conclude that the Law Guardian fulfilled her obligation by making the children's wishes known to the court through the April 4, 2004 and December 7, 2004 reports of Dr. William D. Coffey, a psychologist, who the Law Guardian had engaged to perform psychological evaluations of the three children, in order to assist her "in identifying proper treatment and disposition for the children." The reports are replete with references to the children's wishes to return home.*fn1 Moreover, the doctor informed the court of the children's wishes during the trial. "The children have expressed that they would like to be with their mother, and if they can't be with their biological mother, they all say that they want to remain in their present placements."

We also reject S.A.M.'s contention that the Law Guardian failed to make recommendations to the court as to how the children's wishes may best be accomplished. Recognizing the tension between the positions of DYFS and the parents, the Law Guardian obtained an independent assessment from Dr. Coffey in order to determine what was in the best interests of the children, including whether the children could be returned to the care and custody of their mother. Unfortunately, due to the tragic history of abuse and neglect, as well as S.A.M.'s own psychiatric issues, the doctor recommended that the children not be returned to their mother's custody. A law guardian, as an attorney for a client, cannot mislead the court, nor take action that will be harmful to the client. To the contrary, a law guardian is statutorily required to provide services needed "to help protect [the child's interests]." N.J.S.A. 9:6-8.23a. We conclude that the efforts extended by the Law Guardian complied with her statutory and ethical obligations to the children and the court.

Affirmed.


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