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Division of Youth and Family Services v. J.S.

May 8, 2008

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
J.S., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF N.K., A MINOR.
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
R.K., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF N.K., A MINOR.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-254-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 14, 2008

Before Judges Lintner, Graves and Sabatino.

In these consolidated matters initiated by the New Jersey Division of Youth and Family Services (the Division), defendant J.S. is the mother, and defendant R.K. is the father of N.K., a son, born on January 30, 2005. Defendants, who were both sixteen years old when N.K. was born, appeal from a judgment entered on June 29, 2007, terminating their parental rights.

On appeal, J.S. presents the following arguments:

POINT I

THE TRIAL COURT'S RELIANCE ON NK'S BOND WITH HIS FOSTER PARENTS TO TIP THE SCALES IN FAVOR OF TERMINATION OF PARENTAL RIGHTS IS IN CONTRADICTION WITH THE NEW JERSEY SUPREME COURT'S DECISION IN G.L. AND TERMINATION IS NOT WARRANTED UNDER THE STRICT STANDARDS CODIFIED AT N.J.S.A. 30:4C-15.1(a).

POINT II

EVEN DISREGARDING G.L., THE TRIAL COURT'S DECISION THAT IT WAS NECESSARY TO TERMINATE JS'S PARENTAL RIGHTS IN ORDER TO PROTECT NK'S BEST INTERESTS IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE BECAUSE THE DIVISION HAS NOT SHOWN THAT JS'S HOUSING ARRANGEMENTS IN ANY WAY ENDANGERED NK, THAT JS IS UNWILLING OR UNABLE TO ELIMINATE ANY HARM TO NK, THAT IT MADE ADEQUATE EFFORTS TO RESOLVE JS'S HOUSING SITUATION, AND THAT [TERMINATION] OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

A. THERE IS NOT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE TRIAL COURT'S CONCLUSION THAT JS CAUSED HARM TO NK BECAUSE THE UNSTABLE HOUSING OF A MINOR DEFENDANT WHO WAS DENIED THE HOUSING ASSISTANCE SHE REQUESTED FROM THE DIVISION DOES NOT CONSTITUTE HARM WITHIN THE MEANING OF N.J.S.A. 30:4C-15.1(a)(1), PARTICULARLY WHERE THERE IS NO SHOWING THAT THE CHILD'S HEALTH OR DEVELOPMENT WAS ENDANGERED BY IT.

B. ASSUMING HARM EVER FACED HER CHILD, THERE IS NOT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE TRIAL COURT'S FINDING THAT JS IS UNWILLING AND UNABLE TO ELIMINATE IT WHERE THE JUDGE FOUND JS IS NOW FULLY COMPLYING WITH DIVISION SERVICES, IS TO BE COMMENDED ON HER PROGRESS, AND MAY SHORTLY BE REUNITED WITH HER SECOND CHILD.

C. THERE IS NOT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE TRIAL COURT'S FINDING THAT THE THIRD PRONG OF THE STATUTE HAS BEEN SATISFIED WHERE THE DIVISION REMOVED NK DUE TO "UNSTABLE HOUSING" BUT DID NOT LOCATE A PROGRAM WHERE JS COULD LIVE TOGETHER AND DID NOT FULFILL ITS OBLIGATIONS TO JS AS A CHILD KNOWN TO THE DIVISION AND IN DIVISION CARE AND CUSTODY.

a. THERE IS NOT CLEAR AND CONVINCING EVIDENCE TO SUPPORT A FINDING THAT THE DIVISION EXERCISED REASONABLE EFFORTS WITHIN THE MEANING OF N.J.S.A. 30:4C-15.1(a)(3) WHERE THE DIVISION FAILED TO RESPOND TO JS'S REQUEST FOR A PROGRAM WHERE SHE AND NK COULD LIVE TOGETHER OR OTHERWISE ATTEMPT TO REMEDY THE HOUSING ISSUES THAT WERE THE REASON FOR NK'S REMOVAL.

b. THE DIVISION'S EFFORTS WERE PARTICULARLY UNREASONABLE GIVEN THAT JS WAS A PREGNANT TEEN KNOWN TO THE DIVISION WHOSE NEEDS WERE NOT ANTICIPATED OR MET ...


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