April 2, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF N.S. AND H.Z., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FG-02-87-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 11, 2008
Before Judges Grall and Chambers.
Defendant T.S. appeals from the Judgment dated May 11, 2007, terminating her parental rights to her son N.S., born on April 6, 2002, and her daughter H.Z., born on May 25, 2004. Since the record supports the trial judge's findings that the termination of T.S.'s parental rights is in the best interests of the children and that the criteria set forth in N.J.S.A. 30:4C-15.1(a) have been met, we affirm.
DYFS first became involved with T.S. and her two children in July 2004, when T.S. and J.Z., the father of H.Z. with whom T.S. was living, were involved in a domestic violence incident that resulted in their arrests for assault. They were referred to a domestic violence program, family counseling and anger management counseling, and the case was closed in September 2004.
Three months later, on the evening of December 3, 2004, N.S., then about two years and eight months old, and H.Z., then about six months old, were found by the police in the apartment alone. T.S. had gone out, leaving the children in J.Z.'s care. J.Z. had stepped down the hall to make a telephone call; however, he did not arrive back at the apartment until nearly an hour after the police had arrived. The DYFS and police reports indicate that the apartment was in deplorable condition, strewn with clothing, garbage, and debris, including dirty diapers, food, empty soda cans, and half-empty juice containers. The apartment had fruit flies, and dirty dishes were in the sink. The children were described as well fed, with no bruises or marks suggesting physical abuse. However, a hospital medical evaluation indicated that the son, N.S., had a bad ear infection and a cold. While medication had been prescribed around November 27, 2004, for the ear infection, it appeared that N.S. had not been getting the regular dosage. The daughter, H.Z., had eczema, a diaper rash, insect bites, and a cold. T.S. and J.Z. were charged with child endangerment. T.S. later pled guilty to child endangerment in the third degree, N.J.S.A. 2C:24-4(a), and was placed on two years probation.
On February 14, 2005, the children were placed with J.A.Z. and S.Z., H.Z.'s paternal grandparents, who live in North Carolina. The children have remained with them since that time. The father's of both N.S. and H.Z. have executed identified surrenders of parental rights to their respective children with the understanding that J.A.Z. and S.Z. would adopt them.
The psychological evaluations of T.S. conducted for DYFS indicate that T.S. has substantial psychological and emotional problems. The psychological evaluation of T.S. conducted on April 5, 2005, by Dr. Kenneth M. Schulman, a licensed psychologist, states that T.S. is "less capable than most of dealing effectively with everyday experiences, especially in relation to social and interpersonal situations. She was found to have a limited capacity to establish emotionally close relationships with others." The doctor found her personality to be consistent with a Histrionic Personality Disorder with obsessive-compulsive and narcissistic traits, and he strongly recommended psychotherapy for her.
Various services were provided to T.S. by DYFS, including parenting classes and counseling, transportation to see the children in North Carolina, and referrals to housing resources. By the time of the trial in March 2007, T.S. had been able to find employment, but she was still unable to find stable housing.
On December 18, 2006, more than a year and a half after Dr. Schulman's evaluation and after T.S. had availed herself of the various counseling and therapy resources provided through DYFS, Dr. Charles E. Daly, a licensed psychologist, conducted another psychological evaluation of T.S. He noted T.S.'s troubled past, and found that she "does not have the ability to form deep and lasting relationships with others." Although he found that she would never deliberately cause physical or emotional harm to the children, he opined that giving her custody of the children "would be a grave error and would expose [N.S.] and [H.Z.] to a level of enduring harm from which they would not easily recover and which would most likely be permanent." His report also states that T.S. readily admitted to him that she was unable to provide her children with the necessary emotional, financial and structural support.
Dr. Daly also conducted a bonding evaluation of T.S. and the two children on October 31, 2006. He found that no bond existed between T.S. and her daughter H.Z., and that a "minimal and dysfunctional" bond existed between T.S. and her son N.S. Dr. Daly's bonding evaluation of J.A.Z. and S.Z., conducted that same day, indicates that J.A.Z. and S.Z. have an adequate bond with the children and that the children "certainly feel a sense of safety, security and structure with them."
The trial on the termination of T.S.'s parental rights was held on March 26, 2007. The DYFS caseworker on the file and Dr. Daly testified for DYFS. Defendant neither testified nor presented any witnesses. The law guardian for the children supported the termination of T.S.'s parental rights.
In his testimony at trial, Dr. Daly stated that in his opinion within a reasonable degree of psychological certainty, T.S. is unable to be a custodial parent to her children. He opined that T.S. needed long-term therapy and that her prognosis was "extremely guarded." Indeed, he noted that T.S. was very clear to him that she could not take care of the children. At the time of the hearing, T.S. had visited the children only once since October 2006. Although DYFS would have paid her transportation costs to visit the children in North Carolina, she told Dr. Daly in December 2006, that she did not visit the children in November because the travel time involved might interfere with her promotion at work. In Dr. Daly's opinion, if the children were removed from the care of J.A.Z. and S.Z., they would suffer "severe and enduring harm." He testified that J.A.Z. and S.Z. provide the children with a safe, structured, and loving environment.
The trial judge terminated T.S.'s parental rights to both children, finding that while T.S. had generally been compliant and taken advantage of the services offered by DYFS, she was unable to overcome the causes of her neglect of the children. The trial judge noted that defendant had provided no expert opinion to contradict the testimony of DYFS's experts. He found that T.S. had seen the children infrequently in the past two years, and that they were doing well in their current placement with a family that wants to adopt them. Applying the statutory criteria, he found by clear and convincing evidence that termination of T.S.'s parental rights was in the best interests of the children.
On appeal, T.S. raises the following points:
DYFS FAILED TO MEET ITS BURDEN OF PROOF THAT DEFENDANT'S PARENTAL RIGHTS SHOULD BE TERMINATED.
A. The children were not harmed by a relationship with T.S., but rather the family was suffering under limited means.
B. The evidence below shows that T.S. was willing to eliminate the mark of poverty on her family and was progressing toward that goal.
C. DYFS did not provide services relevant to T.S.'s underlying issue of substandard housing for the family and underemployment.
The scope of our review of the trial judge's decision to terminate parental rights is limited. We will not overturn the factual findings and legal conclusions of the trial judge unless we are "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." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). In a case in which the evidence is largely testimonial, we give special deference to the findings of fact of the trial judge, since he is better able to determine the credibility of the witnesses due to his opportunity to hear and observe their testimony. Cesare v. Cesare, 154 N.J. 394, 412 (1998). "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." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). Further, we must accord deference to the family court's findings of fact due to its special expertise in this kind of litigation. Cesare v. Cesare, supra, 154 N.J. at 412-13. "Appellate review of a trial court's decision to terminate parental rights is limited, and 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).
In order for parental rights to be terminated, the termination must be in the best interests of the child, and the four statutory prongs must be met. N.J.S.A. 30:4C-15.1(a); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). The four statutory prongs must be proven by DYFS by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611-12 (1986). These four prongs "overlap and provide a comprehensive standard for deciding what is in a child's best interest." N.J. Div. of Youth & Family Servs. v. M.M., supra, 189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 84 (App. Div. 2003)). The four prongs "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. F.M., supra, 375 N.J. Super. at 258). The four prongs are intended "to identify and assess what may be necessary to promote and protect the best interests of the child." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007)). The courts recognize that these determinations are "extremely fact sensitive." Ibid.
Our careful review of the record reveals credible evidence to support the trial judge's findings that all four prongs set forth in N.J.S.A. 30:4C-15.1(a) have been met by clear and convincing evidence, and that termination of the parental rights of T.S. is in the best interests of the two children, N.S. and H.Z.
Under prong one, the court must be satisfied by clear and convincing evidence that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). The safety, health and development of the children was endangered by the circumstances in which the police discovered them on December 3, 2004. T.S. was in part responsible for those circumstances and pled guilty to child endangerment. The unrefuted testimony of the psychologist who testified indicates that T.S. is still unable to safely parent these children.
The second prong requires a showing that "[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 and the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1(a)(2). While T.S. was generally compliant with the services offered by DYFS, her mental health problems are such that, as noted above, she is still unable to parent the children.
Under the third prong, DYFS must have 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 must have "considered alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). As noted above, DYFS offered numerous services and referrals to T.S. The record presents no other viable alternative to termination of T.S.'s parental rights. Indeed, the unrefuted testimony of Dr. Daly is that T.S. herself acknowledged to him her inability to properly parent the children. While defendant argues before this court that her poverty and inability to find adequate housing has resulted in the termination of her parental rights, Dr. Daly's testimony makes clear that her lack of housing was not critical in reaching his conclusion that she was incapable of parenting the children.
Under the fourth prong, DYFS must show that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The testimony of Dr. Daly supports the trial judge's finding that this prong was met. He found that placement of the children with T.S. would cause them permanent harm and that they were in a stable and loving environment with J.A.Z. and S.Z., who want to adopt them.
In conclusion, the record supports the trial judge's finding that the four prongs have been proven by clear and convincing evidence and that termination of T.S.'s parental rights is in the best interest of the children.
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