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State of New Jersey Division of Youth and Family Services v. T.B.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 5, 2008

STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
T.B.H., DEFENDANT-APPELLANT,
IN THE MATTER OF R.C.H., AND N.A.E., MINORS.
STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
K.K.J., DEFENDANT-APPELLANT,
IN THE MATTER OF R.C.H., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-114-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 19, 2008

Before Judges S. L. Reisner, Gilroy and Baxter.

T.B.H. and K.K.J., the biological mother and father respectively of R.C.H., a boy born February 4, 1997, appeal from the March 28, 2007 order of the Family Part, which terminated their parental rights to R.C.H. T.B.H. also appeals from that part of the same order, which terminated her parental rights to N.A.E., her son, born April 26, 2005.*fn1 We affirm.

On March 12, 2002, after receiving several unsubstantiated referrals concerning allegations of child abuse in 2000 and 2001, the State of New Jersey Division of Youth and Family Services (DYFS) received another referral indicating that T.B.H. had beaten R.C.H., who was then five years old, because he "messed up the TV." This allegation of abuse was substantiated.

On April 10, 2002, DYFS received a referral indicating that T.B.H. had thrown her one-year-old daughter, Z.H., onto the floor. Although DYFS did not substantiate the alleged abuse, T.B.H. informed the caseworker that "she is very overwhelmed and depressed by her children and feels that if they are placed outside the home, it will give her some time to get herself stable." T.B.H. also advised the caseworker that "she sometimes had suicide ideations."

After T.B.H. signed a fifteen-day consent for placement of R.C.H. and Z.H., DYFS removed them from their mother's custody. Z.H. was placed with a relative. R.C.H. could not be placed with K.K.J. because K.K.J. was completing a five-year term of imprisonment, having been convicted on August 18, 2000, of third-degree distribution of a controlled dangerous substance to a juvenile within a school zone; third-degree theft from the person; and fourth-degree unlawful taking of a means of conveyance. Accordingly, R.C.H. was placed in a foster home.

During the fifteen-day voluntary placement, DYFS provided services to T.B.H., including a psychological evaluation by Dr. Richard Quane, and a psychiatric evaluation by Dr. Gregory Williams, both of whom diagnosed T.B.H. with psychological disorders. Although DYFS attempted to provide additional services to T.B.H., she did not comply; rather, T.B.H. moved to Philadelphia with her paramour and did not attempt to contact DYFS concerning her children.

On October 17, 2002, DYFS filed an abuse and neglect complaint against T.B.H. regarding R.C.H. and Z.H. K.K.J. was not named as a defendant in that complaint. Shortly thereafter, DYFS filed an amended complaint against T.B.H. regarding T.E., another son of T.B.H. All three children were placed by DYFS. Between April 2002 and June 2003, R.C.H. had been placed in four different homes, including that of a relative, S.H. Unfortunately, R.C.H. had to be removed from placement with S.H. after one day because he struck another child and had sexually acted out. In June 2003, R.C.H. was reunited with K.K.J., who had been released from prison.

On January 14, 2005, DYFS received a referral indicating that K.K.J. and R.C.H. were about to be evicted from their apartment for non-payment of rent. After being evicted, K.K.J. and R.C.H. resided at a shelter in Glassboro, before relocating to a motel. In June 2005, K.K.J. was arrested for auto theft. On arrest, K.K.J. requested that the police take R.C.H. to his mother, who was living in Camden with her paramour and her two new children. On July 11, 2005, DYFS filed an amended complaint for child abuse and neglect, naming K.K.J. as a defendant.

In the interim, on July 6, 2005, DYFS received a referral from Virtua Hospital indicating that T.B.H.'s one-and-one-half year old daughter, T.E., had sustained serious injuries to her head, including "occipital and orbital fracture[s]" and to her teeth to where the teeth had "erupted" and "were embedded in [her] lip." Although a fracture was also found in T.E.'s right arm, no determination was made as to whether the fracture was old or new. Hospital personnel described the minor child as looking "like a 'battered woman,'" with her face and lip swollen, and stitches in her face. DYFS substantiated the allegations of child abuse against T.B.H.

Following a police investigation, T.B.H. was arrested and charged with second-degree aggravated assault on T.E. and second-degree endangering the welfare of a child.*fn2 DYFS removed R.C.H., N.A.E., and T.E. from T.B.H.'s custody. R.C.H. and N.A.E. were originally placed with C.E. and S.C., whom DYFS believed were N.A.E.'s father and paternal grandmother, respectively. Following a paternity test, which disclosed that C.E. was not the child's father, N.A.E. was placed with K.W., who has continued to care for him. Although K.K.J. was not then incarcerated because the auto theft charges had been dismissed, he did not have appropriate housing for R.C.H. at the time of the removal. Accordingly, R.C.H. was initially placed with S.C., but later removed on July 13, 2005, because the foster parent could not control him. R.C.H. was then placed in another DYFS-approved foster home. On September 13, 2005, after K.K.J. found suitable housing, the court entered an order transferring custody of R.C.H. to K.K.J. on the condition that DYFS maintain the care and supervision of the child.

DYFS provided services to K.K.J. and R.C.H., including psychological evaluations, counseling and visitation with R.C.H.'s siblings. Nevertheless, K.K.J. failed to provide adequate supervision of R.C.H. Specifically, K.K.J. missed counseling appointments with R.C.H.; left R.C.H. to administer his own medication; left R.C.H. in the care of other women who resided with them, even though they were not adequate caregivers; and neglected to ensure that R.C.H. was met by an adult after being dropped off after school hours. In addition, K.K.J. did not comply with DYFS's services, missing sessions at the Castle Program, and failing to appear in court for abuse and neglect matters. Accordingly, on November 15, 2005, the trial court transferred custody of R.C.H. back to DYFS, who placed the child back with his previous foster family.

On December 13, 2005, the trial court determined that T.B.H. had abused and neglected her children. On February 24, 2006, T.B.H. began serving a four-year term of imprisonment on her conviction of aggravated assault of her daughter. Prior to incarceration, DYFS had provided services to T.B.H. and her children, including Horizon counseling, Family Preservation Services, Robin's Nest parent support program, TIP, daycare for T.T. and N.A.E., as well as summer camp for R.C.H. Although T.B.H. initially complied with the services provided, as time passed, she failed to take advantage of the services offered.

On May 3, 2006, the trial court entered a permanency order, granting leave for DYFS to commence a guardianship action because "[m]other is incarcerated, and father has not participated in services. This is a repeat placement." On June 27, 2006, DYFS filed a complaint for guardianship against T.B.H. and K.K.J. regarding R.C.H. and N.A.E. A trial was conducted on March 26 and 27, 2007. T.B.H. was brought from state prison to attend the termination proceeding. However, after concluding the testimony from the first witness, T.B.H. requested leave of court to absent herself from the balance of the trial, and return to state prison. Following a hearing, the trial judge granted T.B.H.'s request. K.K.J. chose not to attend the termination proceeding.

Testifying at the trial on behalf of DYFS were: Roshenna Harris and Amaka Omuso, DYFS caseworkers; and Dr. Frank Schwoeri, a psychologist. In addition to testimony, the trial court also received reports from Dr. Larry N. Seidman, who had performed a psychological evaluation of K.K.J. in 2005, and from Dr. Deborah Mulgrew, R.C.H.'s treating psychiatrist.

Following completion of the testimony, Judge Robert Page rendered a fifty-two page comprehensive, oral decision in which he determined that DYFS had proven by clear and convincing evidence each of the four prongs of the best interests of the child test of N.J.S.A. 30:4C-15.1a as to each defendant.

On appeal, T.B.H. argues:

POINT I. THE DIVISION OF YOUTH AND FAMILY SERVICES DID NOT PROVE ITS CASE BY CLEAR AND CONVINCING EVIDENCE.

A. TERMINATION OF T.B.H[.]'S PARENTAL RIGHTS MUST BE REVERSED BECAUSE IT WAS BASED ON UNRELIABLE TESTIMONY AND DOUBLE HEARSAY STATEMENTS.

POINT II. THE DIVISION DID NOT MAKE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP THE PARENT TO CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILDREN'S PLACEMENT OUTSIDE THE HOME.

POINT III. TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD BECAUSE DYFS HAS MADE R.C.H. A LEGAL ORPHAN.

On appeal, K.K.J. argues:

POINT I. THERE DID NOT EXIST SUBSTANTIAL CREDIBLE EVIDENCE SUPPORTING THE COURT'S FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

A. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING [THAT] THE HEALTH AND DEVELOPMENT OF THE CHILD WAS AND CONTINUED TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

B. THE PARENT IS WILLING OR ABLE TO ELIMINATE THE HARM FACING THE CHILD.

C. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP [K.]K.J. CORRECT THE CIRCUMSTANCE WHICH LED TO HIS CHILD'S PLACEMENT OUTSIDE THE HOME.

D. TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

Contrary to the appellants, the Law Guardian supports the decision below.

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 discrete 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 fact finding 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).

We have considered the arguments advanced by the appellants in light of the record, and for reasons expressed by Judge Page in his thoughtful, oral decision of March 29, 2007, 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 appellants' parental rights. R. 2:11-3(e)(1)A.

Affirmed.


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