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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 14, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
J.H., DEFENDANT-APPELLANT, AND M.B., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF K.B., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-230-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 18, 2007

Before Judges Yannotti and LeWinn.

J.H. appeals from an order entered on February 28, 2007, which terminated her parental rights to K.B. We affirm.

K.B. was born on September 2, 2004. His parents are J.H. and M.B. The record shows that J.H. has a long history of substance abuse. The involvement of the Division of Youth and Family Services (Division) with J.H. began in March 2002, when it was informed that J.H. tested positive for phencyclidine (PCP). Previously, J.H. had given birth to Q.H. and the child was being primarily cared for by J.H.'s maternal grandmother. Q.H. was removed from the home in October 2003.*fn1 Q.H. was placed with his maternal uncle on April 1, 2005.

K.B. was born substance free; however, at the time of his birth, J.H. tested positive for PCP. Upon his release from the hospital, K.B. was placed with M.B. in an apartment that he shared with the child's paternal grandmother. The Division provided homemaker services to the family.

On September 11, 2004, M.B. refused the homemaker services, and on September 13, 2004, M.B. tested positive for marijuana. K.B. was placed with J.H. on September 15, 2004, and the Division provided housing in a hotel along with homemaker services. Two days later, K.B. was removed from J.H.'s care due to lack of housing and insufficient financial resources. Shortly thereafter, the child was returned to J.H.'s care. She was then residing with K.B.'s maternal step-grandfather. Again, the Division provided homemaker services to the family. In October 2004, the maternal step-grandfather decided that he did not want J.H. and K.B. in his home.

K.B. was placed with foster parents on November 10, 2004. The Division's plan at the time was reunification of the child with his birth parents. However, in January 2006, the Division filed a complaint seeking the termination of J.H.'s and M.B.'s parental rights to K.B. so that the child could be adopted by his foster parents.

Judge Bernadette DeCastro conducted a trial in the matter and filed a written opinion on February 28, 2007, in which she found that the Division had established by clear and convincing evidence all of the criteria under N.J.S.A. 30:4C-15.1a for the termination of J.H.'s parental rights but had not met its burden in proving that M.B.'s parental rights should be terminated. The judge entered an order on February 28, 2007, terminating J.H.'s parental rights to K.B. The court ordered the gradual return of the physical custody of K.B. to M.B. The Division retained legal custody of the child. The judge ordered that the protective services litigation be re-opened.

J.H. appeals from the February 28, 2007 order terminating her parental rights. J.H. maintains that the Division did not prove by clear and convincing evidence that she harmed K.B. She argues that, assuming that the child has been harmed by his relationship with her, the harm has been eliminated. J.H. contends that the Division failed make reasonable efforts toward reunification. She asserts that the termination of her parental rights to K.B. will do more harm than good. J.H. further maintains that the Division violated the Child's Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6 (CPBRA), by placing the child in foster care rather than with a relative.

We have carefully reviewed the record in light of the arguments advanced by J.H. on appeal. We are convinced that there is no merit in the appeal. Therefore, we affirm the order terminating J.H.'s parental rights substantially for the reasons stated by Judge DeCastro in her thorough and comprehensive written opinion. R. 2:11-3(e)(1)(A) and (E). We add the following comments.

The Division is authorized by N.J.S.A. 30:4C-15.1a to seek the termination of an individual's parental rights when such relief would be in the child's "best interests." N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 505-06 (2004). "The grounds for termination of parental rights are codified in subsections (1) through (4) of N.J.S.A. 30:4C-15.1a, and are designed to balance parental rights and the State's parens patriae responsibility to protect the welfare of children." Id. at 506 (citing In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999)).

Thus, an individual's parental rights may be terminated when the Division establishes by clear and convincing evidence the following criteria:

(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 criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

The scope of our review of a trial court's factual findings is limited. Such findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). The trial court's findings "'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Furthermore, because judges in the Family Part have special "expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

We are convinced from our review of the record that there is ample support for the judge's finding that the Division had proven, by clear and convincing evidence, that K.B. had been harmed by his relationship with J.H. N.J.S.A. 30:4C-15.1a(1). The evidence established that J.H. has a long-standing substance abuse problem and, despite having been given numerous opportunities to address that problem, she failed to do so. In addition, J.H. lacked adequate housing and gainful employment. The record therefore established that K.B. had been harmed by J.H.'s persistent substance abuse and her failure to provide a safe and stable home.

We are additionally convinced that the record supports the judge's finding that the Division had shown, by clear and convincing evidence, that J.H. is unable or unwilling to eliminate the harm to K.B. N.J.S.A. 30:4C-15.1c(2). As Judge DeCastro pointed out in her opinion, J.H. has not completed an aftercare program to address her use of illegal substances. Moreover, at the time of trial, J.H. had not obtained gainful employment.

In addition, Dr. Kenneth M. Schulman testified at trial concerning his psychological evaluations of J.H. on March 23, 2004; August 30, 2005; and June 6, 2006. In the report of his last evaluation, Dr. Schulman wrote, "[J.H.] continues to have significant issues with regard to substance abuse and has not followed through on previous recommendations for psychotherapy nor has she availed herself of meaningful substance abuse counseling." The doctor stated that "there is no reasonable expectation that [J.H.] is likely to . . . significantly change without [such counseling]." He added that it was his opinion that J.H. "is not capable of appropriate parenting" and "any child in her custody would be at risk of neglect due to unresolved personality and substance abuse issues." At the trial, Dr. Schulman testified that, in his opinion, J.H. did not have the ability to parent K.B. He further opined that she did not have the capacity to parent the child in the foreseeable future.

J.H. testified at trial that she had completed a thirty-two day program at Sunrise House on January 8, 2007, and was referred to a three-month follow-up program scheduled to begin on February 20, 2007. J.H. argues that she is capable of sobriety and therefore has eliminated any arguable risk of harm to K.B. by enrolling herself in the program and completing it. However, as the judge observed, as of the time of trial J.H. still had not completed the aftercare program.*fn2

There also is ample support in the record for the judge's finding that the Division made reasonable efforts to assist J.H. in correcting the circumstances that led to the child's placement outside of the home. N.J.S.A. 30:4C-15.1c(3). Since 2002, the Division had been working with J.H. to address her substance abuse problem. J.H. had been referred to drug treatment programs at least twelve times but J.H. had not completed the programs and continued to test positive for substance abuse. The Division additionally provided J.H. with psychological evaluations, transportation, substance abuse assessments, and urine screens. The Division also assisted J.H. in obtaining employment and provided J.H. with rental assistance.

Furthermore, the record supports the judge's finding that the Division established by clear and convincing evidence that termination of J.H.'s parental rights to K.B. will not do more harm than good. N.J.S.A. 30:4C-15.1a(4). Here, Dr. Schulman testified concerning his bonding evaluation of J.H. and K.B. He found that there was some bond between J.H. and the child but the child's bonds with his foster parents were stronger. Dr. Elizabeth Smith, who testified as a witness for the Law Guardian, also performed a bonding evaluation of K.B. and J.H. According to Dr. Smith, K.B. did not view J.H. as his primary caretaker. Rather, he viewed her as a "really neat playmate." Thus, the record established that K.B. would not suffer any enduring harm if J.H.'s parental rights were terminated. On the contrary, Dr. Schulman testified that K.B. would suffer "actual harm" if he is returned to J.H.'s care.

J.H. additionally argues that the Division violated the CPBRA and the Division's policy by placing K.B. in foster care rather than with his maternal uncle, A.H., along with his half-brother Q.H. The CPBRA provides in pertinent part that, when a child is placed outside of the home, the applicable agency should make its best efforts to place the child with a relative. N.J.S.A. 9:6B-4b. The CPBRA further provides that the agency involved should make its best efforts to "place the child in the same setting with the child's sibling if the sibling is also being placed outside his home." N.J.S.A. 9:6b-4d. The Division's policy is "to place children with relatives whenever possible." N.J. Div. of Youth and Family Servs. v. M.F., 357 N.J. Super. 515, 527 (App. Div. 2003).

We decline to address whether the Division violated the CPBRA and its policy by placing K.B. in foster care rather than with his maternal uncle and his half-brother. That issue is now moot. The judge has ordered the Division to take steps to return the physical custody of K.B. to his father. Moreover, the fact that the child was placed in foster care rather than with his uncle and half-brother does not undermine the soundness of the trial court's determination that the Division satisfied the criteria under N.J.S.A. 30:4C-15.1a for termination of J.H.'s parental rights.

Affirmed.


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