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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 BY THE DIVISION PRIOR TO THE BIRTH OF NK.

c. THE TRIAL COURT DID NOT ADEQUATELY CONSIDER ALTERNATIVES TO THE TERMINATION OF JS'S PARENTAL RIGHTS AS REQUIRED BY STATUTE.

D. DYFS FAILED TO DEMONSTRATE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF JS'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD TO NK BECAUSE THE EVIDENCE IS CONFLICTING AND INCONCLUSIVE AS TO THE HARM [NK] IS LIKELY TO SUFFER IF REMOVED FROM FOSTER CARE.

POINT III

THE TRIAL COURT'S DECISION IS CONTRARY TO PUBLIC POLICY AND ACTUALLY SENDS A MESSAGE WHICH DISCOURAGES TEENAGE MOTHERS FROM ATTEMPTING TO IMPROVE THEIR PARENTING CAPABILITIES AND RAISE THEIR OWN CHILDREN.

R.K. argues as follows:

POINT I

THE TRIAL COURT'S DECISION TERMINATING THE PARENT[']S RIGHTS OF R.K. TO THE MINOR, N.K., WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND SHOULD BE REVERSED.

1. N.K.'S HEALTH AND DEVELOPMENT HAVE NOT BEEN NOR WILL BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

2. R.K. DID NOT HARM N.K. AND IS ABLE AND WILLING TO PROVIDE A SAFE AND STABLE HOME FOR HIM.

3. THE DIVISION FAILED TO MAKE REASONABLE EFFORTS TO REUNITE R.K. WITH N.K. AND FAILED TO CONSIDER ALTERNATIVES TO TERMINATION.

4. TERMINATION OF R.K.'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

After reviewing the record and applicable law in light of these contentions, we conclude the trial court's findings are supported by clear and convincing evidence, and its legal conclusions predicated on those findings are sound. We therefore affirm the judgment terminating defendants' parental rights substantially for the reasons stated by Judge Grant in his thorough and well-reasoned sixty-page written decision dated June 29, 2007.

While recognizing the fundamental nature of parental rights and the need to preserve and strengthen family life, our Legislature has declared that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). This standard, initially formulated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified in N.J.S.A. 30:4C-15.1(a), requires the Division to establish each of the following standards by clear and convincing evidence before parental rights may be severed:

(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 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).]

In the present matter, testimony was taken on March 26, March 30, April 27, and June 22, 2007. Dr. Mark Singer, a psychologist, Ms. Olga Fuentes, and Mr. Desmond McDermott testified for the Division; J.S. and Dr. Richard S. Klein, a psychologist, testified for J.S.; and J.K. (R.K.'s mother) and Dr. Gerard Figurelli, a psychologist, testified on behalf of R.K. The testimony of each of these witnesses is summarized in the court's written decision and need not be repeated here.

After carefully considering and evaluating all of the evidence, including the expert testimony, the court determined the Division satisfied each of the four statutory standards by clear and convincing evidence.

Under the first prong, which the court described as "the harm factor," the court's findings included the following:

With regard to both defendants, it is clear that [N.K.] has been harmed by the parental relationship. The facts are clear that neither parent had the ability to independently care for [N.K.] at the time of his removal. It is obvious that [J.S.] had not addressed her behavioral issues which led to her personal involvement with the Division. It is clear that [R.K.] was a minor residing with his mother without any financial ability, housing or capability to parent his son.

. . . [J.S.] was given an opportunity to parent in a supervised setting with her maternal great grandmother and failed to cooperate. Her immaturity and instability represented a significant threat to the safety and well being of [N.K.] Similarly, [R.K.] had no ability to raise and care for his son and no relative resources were offered to the Division to assist with raising [N.K.]

The current evidence of harm facing [N.K.] is reflected in the opinions of defense experts, Dr. Klein and Dr. Figurelli. Both experts are particularly persuasive on the subject of the potential harm to be suffered by [N.K.] if custody was immediately returned to either of his parents. Neither expert opined that [J.S. or R.K.] had the immediate ability to parent their child. It was represented [J.S.] may be able to do so in about a year. While Dr. Figurelli noted that [R.K.] could play a supportive role in parenting.

Dr. Klein's evaluation is consistent with the conclusion reached by the State's expert, Dr. Singer. The lack of bond or attachment between mother and child was also observed. The strong connection and emotional involvement between foster parents and child was witnessed by the expert. So much so that Dr. Singer opined [N.K.] would suffer irreparable harm if removed from his foster parents' care.

Dr. Figurelli's evaluation of [R.K.] demonstrates two and one-half years after his oldest son's birth, defendant father is still not able to parent independently. He acknowledges the need for [R.K.] to participate in parenting skills training and parenting education. To date, defendant father has been non-compliant with [the Division] services. He concluded defendant father currently has no stable and adequate independent living arrangements to care for his children. The expert testified as seeing [R.K.] playing a supportive role in parenting of his son. Dr. Singer also noted [R.K.] will have an inability "to cooperate with others and respond effectively to the demand placed upon him as a parent." This

[c]court finds this observation to be insightful when considering the conduct with respect to [R.K.] in this litigation. He has been forced to attend psychological evaluations, after multiple attempts, he has failed to attend parenting skills, and has been inconsistent with visitation. His appearances in this litigation started at the time of commencement of the trial.

The [c]court finds the experts' opinions to be both believable and credible with respect to the ability of the parents to assume custody of [N.K.] Their opinions are supported by the fact that it took [J.S.] two years to complete parenting skills classes. She is still involved in counseling and anger management and has no independent housing. [R.K.] has never taken advantage of the opportunity for services and only came in contact with the Division during the guardianship litigation. There is no evidence to remotely suggest [N.K.] has not been harmed by the parental relationship.

Regarding the second prong, which the court described as "the parental fitness factor," the court incorporated its findings with respect to the first prong, and it determined "neither parent is able to provide an immediate stable and permanent home for" N.K. Moreover, the court stressed the harm which would befall N.K. if he was removed from his foster family. The court found the testimony of Dr. Singer to be "the most credible or believable" and noted Dr. Singer's opinion that N.K. "would regress behaviorally and emotionally" if he was removed from his foster family. On the other hand, N.K. "is not attached to his mother" and "is only beginning to form a relationship with his father." The court noted N.K. "needs a parent now," but the court found it "unlikely that [N.K.] can be timely placed with either of his parents in the foreseeable future." Thus, the court determined the Division satisfied the second statutory requirement.

Thirdly, the court examined whether the Division made "reasonable efforts" to provide services to help J.S. and R.K. reunite with their child. The court found the Division provided J.S. and R.K. with "reasonable services" both before and after N.K. was taken into the Division's custody. Not only did the Division provide both parents with visitation services, the Division provided psychological evaluations, parenting skills classes, counseling services, and it assessed whether relatives were suitable to assume parenting responsibility for N.K. On the other hand, both J.S. and R.K. acknowledge they "did not take advantage" of the services they were offered. Thus, the Division satisfied the third requirement for termination of parental rights.

With regard to the fourth and final statutory requirement, the court determined termination of parental rights would not do more harm than good. The court found: "It is without question that [N.K.] is emotionally bonded to his foster parents. It is without question [N.K.] would suffer if removed from their care." The court's opinion was based upon "the credible and believable testimony . . . provided by Drs. Singer and Klein," who both agreed "the child is bonded to his caregiver[s]."

After being in the "safe and stable home" of his foster family "for almost two and one half years" N.K. "has become a member of the foster family." If removed from this home, N.K. "will suffer regression and psychological and emotional problems." While noting "[n]o one is a winner in litigation of this type" the court concluded:

In this case it is clear to this [c]court that the overall best interest of [N.K. is] to remain with his foster parents. No credible or believable evidence or testimony has been presented which demonstrates the parents are able to safely and appropriately parent [N.K.] in the foreseeable future. The child has been in foster care for all but the first three months of his life. He has been with his foster parents for over two years. All of the experts recognize he is bonded to the caregiver. The ensuing elapse of time from the bonding evaluation to this [c]court's decision has only strengthened their bond.

Time from a child's perspective is a very precious commodity. Sadly, the pace of litigation oftentimes does not keep pace with the developmental time frames of children. Such conclusion is appropriate in this matter. This [c]court will not speculate or risk the well being of [N.K.] on the concept that he may be resilient enough to recover from severing his relationship with his foster parents. He is with his psychological parent and no evidence has been presented which suggests severing same is worth the potential risk of harm to [N.K.]

Our laws have recognized that sometimes a parent's delay can be a "little too late" with respect to a child who has bonded to an alternative caregiver. Such is the case here. [J.S.] has finally begun to fully comply with services. [R.K.] may become a competent parent in the future. There is an opportunity for reunification with [R.A.K.*fn1 ], it is, however, too late for [N.K.]

"The scope of appellate review of a trial court's fact- finding function is limited. The general rule is that findings by the trial court 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., 65 N.J. 474, 484 (1974)). Trial courts hear the case and see the witnesses, and they are in a better position to evaluate the credibility and weight to be afforded testimonial evidence. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988). On the other hand, deference is not appropriate if the trial court's findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

In this case, the trial court correctly analyzed each of the four statutory standards that the Division must prove before parental rights may be terminated, the court made detailed findings as to each of the parents, and the court's findings and conclusions are adequately supported by clear and convincing evidence. We therefore affirm substantially for the reasons stated by Judge Grant in his written decision on June 29, 2007.

Affirmed.


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