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New Jersey Division of youth and Family Services v. K.B.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 13, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
K.B., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF KY.B., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FG 21-03-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 13, 2008

Before Judges Winkelstein, Yannotti and LeWinn.

Defendant K.B. appeals from a judgment entered on April 25, 2007, which terminated her parental rights to her son, Ky.B., and awarded guardianship of the child to plaintiff, the Division of Youth and Family Services. For the reasons that follow, we affirm.

K.B. is the birth mother of eight children: Sh.B., Ky.B., D.R., K.H., M.H., M.R., D.B. and M.B.T. The Division's first involvement with K.B. and her family occurred in April 1997, when the Division received a report that raised concerns about the health and welfare of the children and the conditions in which they were living. At that time, M.B. was caring for two of her three children, Ky.B. and D.R.*fn1 The referral was the first of many referrals made to the Division raising concerns about the children and the conditions in the home. In the period from February 1, 2000 to December 21, 2003, K.B. gave birth to four other children: K.H., M.H., M.R. and D.B.

On November 17, 2004, the Division filed a verified complaint seeking custody of Ky.B., D.R., K.H., M.H., M.R. and D.B. because the conditions of the home were unsanitary, the children were unkempt, and at times there was insufficient food in the home. The court entered an order on November 17, 2004, granting the Division custody of the children. The court found that the children's continued residence in the home would be inimical to their safety, health and welfare.

On December 2, 2004, Dr. Clarita Obleada conducted a psychiatric evaluation of K.B., and in her report concerning that evaluation, Dr. Obleada noted that K.B. was suffering from chronic depression. Ky.B. and D.R. were returned to K.B. on February 1, 2005, and K.H. and M.H. were returned on May 2, 2005. M.R. and D.B. remained in foster care. The Division's involvement with K.B. and the family continued.

On November 30, 2005, the Division received a referral that the family was homeless. The Division removed the four children from the home and placed them in foster care. On December 2, 2005, the Division filed a verified complaint seeking temporary custody of the children due to the imminent danger posed to them by the family's homelessness. The Division noted that K.B. was about to be arrested for failing to pay certain fines, driving with a suspended license, and issuing checks on accounts with insufficient funds. The court entered an order on December 2, 2005, finding that the children's removal was warranted due to imminent danger to their safety, health and welfare. K.B. was arrested on December 2, 2005, and she was incarcerated in the county jail until January 23, 2006.

On March 3, 2006, Mary Ann Foley, R.N., of Catholic Charities, performed a psychological evaluation of K.B. Foley concluded that K.B. was suffering from major depressive disorder that was in remission. Ms. Foley noted that K.B. had a history of major depression and dysthymic disorder but there was no psychosis. Ms. Foley found that K.B.'s "current insight and judgment are fair." She noted that K.B. tended to "minimize her symptoms" but she had been encouraged "to be aware of any symptoms of depression."

On July 19, 2006, the Division filed a verified complaint in which it sought the termination of K.B.'s parental rights to Ky.B., D.R., K.H. and M.H. On October 28, 2006, K.B. gave birth to another child, M.B.T., who was placed in the Division's custody several days later. On April 4, 2007, the court accepted K.B.'s surrender of her parental rights to D.R., K.H., M.H. and M.R.*fn2

Judge John J. Callahan conducted a trial on the Division's application to terminate K.B.'s parental rights to Ky.B. on April 9, 10, and 11, 2007. Although K.B. was incarcerated at the time of the trial on certain charges including welfare fraud, she appeared and testified. On April 25, 2007, Judge Callahan placed a lengthy oral decision on the record.

The judge initially noted that R.O. was Ky.B.'s birth father and he had been served with a copy of the Division's complaint but thereafter failed to appear in the action. The judge found that the Division had proven by clear and convincing evidence all of the criteria under N.J.S.A. 30:4C-15.1(a) for the termination of K.B.'s parental rights. The judge entered an order dated April 25, 2007, terminating K.B.'s and R.O.'s parental rights to Ky.B. K.B. filed a notice of appeal on June 6, 2007. R.O. has not appealed.

K.B. argues that the judge erred by finding that the Division had proven all of the criteria under N.J.S.A. 30:4C-15.1(a). We disagree with K.B.'s contentions and affirm the order terminating her parental rights to Ky.B. substantially for the reasons stated in the thorough and comprehensive oral decision that Judge Callahan placed on the record. R. 2:11-3(e)(1)(A). We add the following additional comments.

It is well-established that a parent has a fundamental right to enjoy a relationship with his or her child. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, "[p]arental rights, though fundamentally important, are not absolute." Id. at 347. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. "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." Ibid.

That standard requires that an individual's parental rights not be terminated unless the Division establishes by clear and convincing evidence each of the following criteria:

(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-15.1(a).]

These criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

The scope of our review in an appeal from an order terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). In addition, "[p]articular deference is afforded to decisions on issues of credibility." Ibid. (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)). Having thoroughly reviewed the record, we are satisfied that the judge's factual findings are supported by substantial and credible evidence.

K.B. first argues that the Division failed to establish by clear and convincing evidence that Ky.B.'s "safety, health or development has been or will continue to be endangered" by his relationship with her. N.J.S.A. 30:4C-15.1(a)(1). We note that, in the trial court, K.B. conceded that the Divison had proven this first prong of the "best interests" test, yet takes an entirely different stance on appeal. In any event, we are convinced that K.B.'s contentions regarding the judge's findings as to this prong of the "best interests" test are without merit.

We reject K.B.'s argument that the trial judge erred by considering evidence of certain referrals. K.B. argues that this evidence should have been expunged from the Division's records. The Division is required by N.J.S.A. 9:6-8.40(a) to expunge from its records all information relating to a report, complaint or allegation of an incident of child abuse or neglect with respect to which the [D]ivision or other entity designated . . . to investigate allegations of child abuse or neglect has determined, based upon its investigation thereof, that the report, complaint or allegation of the incident was unfounded. [Emphasis added.]

Here, the Division's records contained certain allegations of abuse or neglect that were received in the period from 1997 through 2005 and found to be "not substantiated." At the time those findings were made, the Division's regulations provided that allegations of abuse or neglect could be found to be either "substantiated," "not substantiated" or "unfounded." N.J.A.C. 10:129A-3.3(a), (repealed). See 37 N.J.R. 2132(a) (June 20, 2005), 37 N.J.R. 5004(b) (December 19, 2005). Moreover, according to the Division's regulations, a finding that an allegation was "not substantiated" was not the equivalent of a finding that the allegation was "unfounded." Ibid. Therefore, N.J.S.A. 9:6-8.40(a) did not require the Division to expunge the evidence regarding the referrals found to be "not substantiated" in the period from 1997 to 2005, and that evidence was properly admitted at trial.

In addition, only two referrals that the Division determined to be "unfounded" were mentioned in the Division's records. One of these referrals was made in May 2005. However, the Division was not required to expunge evidence regarding the May 2005 referral until three years after the report was determined to be unfounded, or some exception to the expungement requirement applies. See N.J.A.C. 10:129-6.2(a). Furthermore, the evidence regarding the April 1997 referral was not a significant factor in the trial court's decision.*fn3

We also reject K.B.'s contention that the judge erred by finding that conditions in the home jeopardized the children's safety, health or welfare. K.B. maintains that the conditions were due to her impoverishment. K.B. contends that, as a single parent, she was overwhelmed by the responsibility to maintain a home and care for several children. However, the Division presented evidence which established that the conditions in K.B.'s home were seriously deficient and posed a substantial threat to the children's safety, health and welfare.

We also reject K.B.'s assertion that Ky.B. did not suffer any physical harm under her care. K.B. notes that, although there was some concern about Ky.B.'s persistent migraine headaches and her failure to timely pursue an MRI for that condition, it was eventually determined that Ky.B. did not suffer from any serious abnormality. Even so, K.B.'s delay in having Ky.B. tested subjected the child to the potential for harm. In addition, the Division presented evidence that K.B. failed to follow through with medical, dental, and psychological treatment requirements or recommendations for the children.

K.B. further argues that there is no evidence to support the judge's finding that Ky.B. would continue to be harmed by his relationship with her. K.B. notes that if Ky.B. is returned to her, she would only be responsible for one child, rather than seven children. Even so, the evidence supports Judge Callahan's finding that K.B. is not presently capable of providing a safe and stable home for Ky.B. and she will not be capable of doing so in the foreseeable future.

We turn next to K.B.'s contention that the Division failed to prove that she is unable or unwilling to eliminate the harm to Ky.B. and that the delay in a permanent placement will cause further harm. N.J.S.A. 30:4C-15.1(a)(2). Again, we disagree.

Here, Judge Callahan found that K.B. was "nowhere close" to providing Ky.B. with a safe and stable home. The judge noted that, upon her release from jail, K.B. would undoubtedly find gainful employment. Indeed, the record shows that K.B. has a positive work history. However, the judge found that it was unlikely that K.B. would establish a suitable home for Ky.B. and she was unlikely to exercise reasonable judgment. The record supports those findings.

K.B. argues that she made considerable efforts to support and maintain her family and tried to meet the Division's expectations. K.B. asserts that she has demonstrated insight into her past mistakes. K.B. maintains that she is making strides towards financial independence. However, despite K.B.'s good intentions, the children were removed from her care in November 2004 because of her inability to provide them with a safe and stable home. Thereafter, the children were returned to K.B. and she was afforded another opportunity to show that she could be a capable parent. K.B. failed to do so, and in November 2005, the children were again removed from her care after she was evicted for non-payment of rent and the family became homeless. In addition, at the time of the trial, K.B. was incarcerated, did not have stable housing, and was unemployed.

Furthermore, at the trial, Dr. Alan S. Gordon testified about his psychological examination of K.B. Dr. Gordon stated that K.B. was not psychotic but she displayed "a good deal of defensiveness." He said that K.B. has "feelings of inadequacy, . . . anticipates rejection, [and] there is a sense of compulsiveness with paranoid features[.]" Dr. Gordon noted that, although K.B. has a "potential" to succeed, she had not been able "to maintain stability in her life in order to care for her children[.]"

Dr. Gordon additionally testified that he was looking for stability and the ability to care for a child, but he had not "found that stability in [K.B.'s] life for a lengthy period of time, not either . . . in her living situation, [or] in her employment situation." The doctor said that it was "fair to say" that an individual's past actions are the best indicator of his or her future actions.

Thus, notwithstanding K.B.'s arguments to the contrary, the evidence supports the judge's finding that K.B. is "nowhere close" to being able to provide Ky.B. with "safety and stability." The record also establishes that Ky.B. requires permanency and he will suffer further harm by a delay in a permanent placement. We therefore are convinced that the judge's finding that the Division proved the second prong of the "best interests" test is supported by substantial credible evidence.

K.B. next argues that the judge erred by finding that the Division made reasonable efforts to assist her in addressing the circumstances that led to the child's placement outside of the home. N.J.S.A. 30:4C-15.1(a)(3). This contention also is without merit.

In his decision on the record, the judge noted that the Division had provided the family with, among other things, therapy, substance abuse referrals, summer camp for the children, special child services, child care assistance and referrals, psychological evaluations and bonding assessments, a child health nurse assessment, furnishing, stipends for necessities, housing support, transportation, and visitation.

K.B. argues that while the Division may have provided her with a "quantity" of services, the services lacked "quality" because they were not tailored to her particular needs. K.B. also expresses dissatisfaction with the family preservation services that were provided to assist her with housekeeping. She asserts that the Division disregarded her request for assistance in addressing Ky.B.'s behavioral problems. She also maintains that the Division failed to prevent her eviction in November 2005, and did not keep her informed of Ky.B.'s progress while he was in foster care. In our view, these arguments are without sufficient merit to warrant any discussion. R. 2:11-3(e)(1)(E).

We next consider K.B.'s contention that the Division failed to prove that the termination of her parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). Again, we disagree.

In his testimony, Dr. Gordon noted that Ky.B. is a child with behavioral problems and special educational needs. The doctor noted that Ky.B. suffers from depression and takes an anti-depressant medication. Ky.B. also had been suicidal at one time. Dr. Gordon testified that, although Ky.B. genuinely loved his mother and had expressed a desire to live with her, his attachment to her was "an insecure attachment."

Dr. Gordon opined that, in view of K.B.'s previous failure to consistently provide Ky.B. with a safe and stable home, the child could not be assured that K.B. will "provide for him on a consistent basis" in the future. The doctor further opined that if Ky.B. were placed with K.B. and she were not able to provide him with the safety and stability he needs, "then the damage to the child is going to be extensive."

Dr. Gordon additionally noted that Ky.B. is going to require "a good deal of care for a lengthy period of time." He said that, "[t]he child has already had great difficulty and that difficulty could be exacerbated by what would happen to him if he [does not] receive the basic criteria for parenting on a consistent and stable basis[.]" Dr. Gordon stated that his concern was that K.B. has not "been able to demonstrate that consistency . . . throughout her years of having children and there are many questions concerning her ability to [do so] in the future."

The evidence thus shows that K.B. is not presently capable of providing Ky.B. with the safety and stability he needs and it is unlikely that she will be capable of doing so in the foreseeable future. The record also establishes that there is a substantial likelihood that Ky.B. will be harmed if he is reunited with K.B. On the other hand, freeing K.B. for adoption will offer Ky.B. the opportunity to achieve the safe and stable environment he requires. Accordingly, we are satisfied that there is substantial credible evidence to support the judge's finding that termination of K.B.'s parental rights will not do more harm than good to Ky.B.

Affirmed.


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