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New Jersey Division of Youth and Family Services v. D.S.


June 5, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-71-05.

Per curiam.



Submitted February 27, 2008

Remanded March 4, 2008.

Resubmitted April 7, 2008*fn1

Before Judges Lihotz and Simonelli.

Defendant D.S. initially appealed from the March 27, 2006 judgment of guardianship (the March 27, 2006 judgment) that terminated her parental rights to her daughter, S.J.*fn2 We vacated the March 27, 2006 judgment and remanded for further proceedings. Div. of Youth & Family Servs. v. D.S., No. A-4454-05T4 (App. Div. January 4, 2007). After a remand hearing, the trial judge entered a judgment of guardianship on April 18, 2007 (the April 18, 2007 judgment), terminating D.S.'s parental rights to S.J. This appeal followed.

We reviewed the trial judge's five-page remand opinion and determined its deficiency precluded us from making any meaningful review. Thus, on March 4, 2008, we vacated the April 18, 2007 judgment and remanded with instruction to review the record and provide detailed and specific determinations of the factual evidence, including expert opinion, presented by each party as it relates to the first, second and fourth prongs of N.J.S.A. 30:4C-15.1a. In accordance with our instruction, on April 7, 2008, the trial judge provided a supplemental opinion. On April 30, 2008, we granted D.S. leave to file a supplemental brief, and an affidavit dated April 21, 2008, and granted DYFS and the Law Guardian leave to file supplemental briefs by May 19, 2008. DYFS and the Law Guardian did not comment on D.S.'s submission. Based upon our review of the opinion, and our careful review of the record, including the supplemental pleadings, we affirm.


The facts prior to remand are set forth in our previous opinion. We briefly summarize them here.

DYFS first became involved with D.S. in September 2003, after receiving a referral from S.J.'s school that the child was often late and left unsupervised at home. D.S. denied drug use and signed a case plan.

D.S. eventually admitted she was addicted to heroin and cocaine. It was later determined she also suffered from depression and anxiety. On March 3, 2004, DYFS filed a Title 9 action, obtained legal and physical custody of S.J., and placed the child into a foster home. On March 15, 2004, D.S. waived her right to a fact-finding hearing and admitted that her drug use caused her to neglect S.J.

D.S. initially accepted DYFS's recommendation for drug rehabilitation. However, her initial efforts in a detoxification program failed. She relapsed in November 2004, and was admitted to the hospital complaining of suicidal ideations. While hospitalized, D.S. entered another detoxification program. D.S. experienced repeated relapse despite continued efforts at drug rehabilitation.

A permanency hearing was held on February 24, 2005. Evidence revealed that D.S. was still addicted to drugs and had not engaged in services to remediate her drug addiction. The hearing judge determined that the permanent plan for S.J. was termination of parental rights followed by adoption.

On March 18, 2005, D.S. entered Integrity House, a residential drug abuse treatment facility. She successfully completed the first phase of the program, which weaned patients off methadone to abstinence. She transferred to the second phase, which provided transitional housing. On April 21, 2005, DYFS filed a guardianship action.

Following a bench trial in March 2006, the trial judge concluded that the State had proven each of the four prongs in N.J.S.A. 30:4C-15.1a by clear and convincing evidence. The judge entered the March 27, 2006 judgment terminating D.S.'s parental rights and granting DYFS guardianship of S.J. for adoption purposes. The judge determined that because S.J. would continue her relationship with D.S., termination would not harm the child. We determined this was error because such continued contact is unenforceable. In re Guardianship of K.H.O., 161 N.J. 337, 362-63 (1999); see also In re Adoption of a Child by W.P., 163 N.J. 158, 173 (2000); N.J.S.A. 9:3-50. We also determined that the judge did not address whether termination would cause less harm than continuing the parental ties. Thus, we remanded for a hearing to reassess three issues: (1) whether D.S.'s circumstances have changed*fn3 since the entry of the judgment when determining whether S.J.'s safety, health or development "will continue to be endangered by the parental relationship[,]" N.J.S.A. 30:4C-15.1a(1); (2) whether D.S. has eliminated the harm to the child, N.J.S.A. 30:4C-15.1a(2); and (3) whether termination without the continued relationship with D.S. would do the child more harm than good, N.J.S.A. 30:4C-15.1a(4). We emphasized that the fundamental focus was whether D.S. can become fit in time to meet her daughter's needs In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

A four-day remand hearing occurred in March 2007. Several fact witnesses, including defendant, testified, as did DYFS' expert psychologist, Dr. Rachael Nelson,*fn4 and D.S.'s expert psychologist, Dr. Althea Lazzara. In his initial remand decision, the judge determined that although D.S. remained drug free and had "made progress in improving her circumstances since entry of the judgment . . . terminating [her] parental rights," the employment and subsidized housing provided by Integrity House did not evidence her ability to independently provide for herself and S.J. The judge reasoned that:

Two years have passed since [D.S.] made any serious effort to overcome the causes of her neglect of [S.J.]. Any progress she has made appears to rely upon the support she has received from Integrity House. There is little evidence that she will be independently able to adequately parent [S.J.] outside Integrity House's sheltered, protected, structured environment and continued rent subsidy after she completes its drug rehabilitation program.

The judge also determined that D.S.'s drug addiction was not the sole cause of her neglect of S.J. and that her mental issues, which she had not overcome, contributed to the harm to the child. The judge reasoned that:

[D.S.'s] narcissism and her inability to put [S.J.'s] needs above her own have caused [S.J.] greater harm. It led to [S.J.'s] parentification and parent-child role reversal with her mother. Her "bonding" with her mother was not based upon her need for her mother's care, protection, support and nurturing but her mother's narcissistic need for [S.J.'s] emotional support.

The judge also determined that termination will not do S.J. more harm than good. He acknowledged S.J.'s desire to be adopted by her foster mother, and reasoned that the child's "best interest will be served if her mother's parental rights are terminated freeing her for adoption by her foster parents giving her permanency in her family relations."

In his supplemental remand opinion, the judge focused on the testimony of Dr. Nelson and Dr. Lazzara. He rejected Dr. Lazzara's testimony because it "did not adequately address psychological problems of [D.S.] and [S.J.] and how they relate to the issues in this case." Specifically, Dr. Lazzara opined that D.S. was "able to handle any of the stressors that she's experiencing at the current time"; D.S. has "demonstrated sustained full remission" in her drug addiction in that she had been drug-free for over twelve months; and D.S. is "at a reduced chance for relapsing." However, the doctor admitted that the twelve-month remission period depends upon whether an addict is in a controlled environment, such as a therapeutic community like Integrity House. The doctor also admitted that D.S. is in a gradual transition where she is being reintroduced to stressors that might cause a person to relapse, such as family, work, and cleaning, and is being "slowly reintegrated into the environment that the rest of us live in."

The judge also determined that Dr. Nelson's testimony was more "credible . . . reasoned and firmly based on the trial evidence." Dr. Nelson opined that D.S. was "not capable of parenting S.J. at this point in time in a safe, consistent and appropriate manner"; D.S. has not made enough personal growth to be able to care for S.J. "[b]ecause she remains narcissistic and egocentric and so focused on her own needs that she doesn't really recognize the needs of [S.J.] as separate and different from her own"; D.S. has not achieved sufficient independence to show she can independently parent S.J. because she "continues to live at Integrity House, which is a highly regimented, organized, structured, very supportive environment"; "there's no proof yet that [D.S.] would be able to maintain her sobriety and maintain a job and maintain taking care of herself and a child once she leaves [Integrity House]"; D.S. "has not made very significant progress in terms of financial independence and housing independence in the years since we last went to trial"; D.S. "continues to be emotionally fragile and very needy to the point where she is better at taking care of herself and maintaining her sobriety but not to the point where she's capable of taking care of herself and of a child"; D.S. is "not ready to move beyond taking care of her owns needs to taking care of another person's needs, especially a vulnerable, needy child"; and D.S. "lacks attunement to recognize and understand the needs of her child when they are different from her own and that she won't be able to meet the needs of her child, because she'll be too self-absorbed in meeting her own needs."

Dr. Nelson also opined that S.J. "is a pseudo-mature, over-parentified child who's style of functioning in her world right now is to be deeply vigilant and attuned to the emotional needs of [D.S.][,]" and her emotional needs will not be met because she will be taking care of her mother; and the child's emotional health will not be met "because she will be so busy taking care of her mother and her mother will be so busy taking care of herself that no one will be taking care of [S.J.]." The doctor testified that if reunified with D.S., it would result in:

Continuing a downward spiral that has already begun in terms of [S.J.'s] physical ailments, in terms of her migraines, continuing to do poorly in school, continuing to have social problems making friends in school, continuing to internalize a lot of stress and anxiety and then explode periodically and act out in inappropriate ways. She's heading in a direction that could potentially replicate her birth mother's behavior pattern that led to her drug abuse.

The doctor further opined that S.J. does not trust and is afraid to trust her mother; that S.J. has been deeply scarred by her experiences with her mother; that D.S. cannot help S.J. recover from those scars and trauma; that S.J. has been emotionally prepared for the termination of parental rights; and that S.J. wants to be adopted by her foster mother. The doctor concluded that reunification with D.S. would cause S.J. "devastating, irreparable damage"; that the lack of contact with D.S. would not cause serious and enduring harm; and that adoption by S.J.'s foster mother would meet the child's emotional needs.

The judge determined that "there is a substantial risk that [D.S.] will relapse to using drugs when she is exposed to the stresses of daily living when she leaves the Integrity program"; "[t]hat risk [of relapse] would be increased if custody of [S.J.] were returned to [D.S.] against [S.J.'s] wishes"; and that "[D.S.'s] probability of drug relapse is further exacerbated by her mental health problems." The judge concluded that DYFS had provided clear and convincing evidence of satisfaction with all four prongs of N.J.S.A. 30:4C-15.1a.


Our review of a trial judge's findings is a limited one. Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). We will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance,'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will reverse only if we are convinced the trial judge's factual findings and legal conclusions "are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone, supra, 78 N.J. Super. at 155.

Given the special jurisdiction and expertise of a family court judge, we accord deference to that judge's fact-finding and conclusions which flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (1998); Div. of Youth & Family Servs. v. M.M., 382 N.J. Super. 264, 271-72 (App. Div.) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)), rev'd o.g., 189 N.J. 261 (2007). We must defer to the trial judge's findings of fact in termination of parental rights cases if supported by clear and convincing evidence in the record. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993).

We also afford deferential respect to a family judge's credibility determinations where they are supported by competent, substantial and credible evidence. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (citing Rova Farms, supra, 65 N.J. at 483-84). "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)).

Based upon our review of the record, we are satisfied there is clear and convincing evidence supporting the judge's factual findings, credibility determinations, and legal conclusions, and we discern no reason to disturb them. Although D.S. has remained drug free, she has yet to function in the real world, where the stressors of everyday life challenge even the most capable parent, who has no history of drug addiction. We emphasize that as of the date of D.S.'s supplemental affidavit, she had only been in her own apartment twenty-one days and still did not have full-time employment. DYFS provided clear and convincing evidence that S.J.'s safety, health or development was and will continue to be endangered by her relationship with D.S.; and that, despite the lapse of over three years, D.S. has not eliminated the harm facing S.J., cannot provide a safe and stable home for the child, and delay of permanent placement will add to that harm.

We also cannot ignore the serious and enduring harm D.J. will suffer if separated from her foster mother. S.J. has been in her foster home for four years, where she receives the safety, stability and permanency she deserves. Dr. Nelson unequivocally concluded that removal of S.J. from her foster mother would cause the child "devastating, irreparable damage." S.J.'s best interests require that she remain in the permanent, safe, and stable home of her foster mother and that D.S.'s parental rights be severed. In re Guardianship of K.L.F., 129 N.J. 32, 43-44 (1992); N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 110 (App. Div.), certif. denied, 180 N.J. 456 (2004).


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