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Division of Youth and Family Services v. V.D.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 24, 2008

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
V.D., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF S.A.M.D., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-168-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 21, 2008

Before Judges Lintner, Sabatino, and Alvarez.

Defendant, V.D., appeals from a May 29, 2007 judgment of guardianship rendered after trial, terminating her parental rights in her daughter, S.D., who was born May 31, 2005. We affirm.

When S.D. was born, she weighed four pounds, eleven ounces and had been exposed to cocaine and methadone. On June 14, 2005, pursuant to notice of emergency removal, N.J.S.A. 9:6-8.29 and 9:6-8.30, the child was placed in the care of plaintiff Division of Youth and Family Services (the Division). V.D. appeared at the July 11, 2005 Order to Show Cause hearing, and was ordered to undergo psychological and drug evaluations. Visitation was ordered. As V.D. requested, S.D. was placed with V.D.'s sister, L.W.

V.D. identified S.D.'s father as F.M. He was served with the notice of emergency removal, as well as the order to show cause. He appeared in court on July 11, 2005, but did not appear at the subsequent fact finding hearing on October 20, 2005, nor did he appear at the permanency hearing on January 13, 2006. His whereabouts continue to be unknown, and as a result he has not been served with a copy of the guardianship complaint.

When S.D. was born, V.D. was still married to N.D. N.D. has informed the Division that S.D. could not be his child, as the parties have been separated a number of years, and that he had no interest in the outcome of the proceedings. The trial court found the presumption that N.D. was S.D.'s father based on their marriage to be overcome by clear and convincing evidence consisting of statements made by F.M., V.D., and N.D., in addition to N.D.'s refusal to participate in the proceedings.

V.D. disappeared subsequent to the July 11, 2005 order to show cause, and did not participate in scheduled court hearings nor in visitation. On March 9, 2006, the Division filed a guardianship complaint, and V.D. did not appear on the initial return date. On September 14, 2006, she appeared in court for the first time since July 11, 2005. She advised she had been living in an inpatient drug treatment program in Rhinebeck, New York, since July 11, 2006. Supervised visitation was then scheduled bi-weekly. Trial was conducted over three days in April 2007.

On appeal, V.D. raises the following issues:

POINT I

V.D.'S PARENTAL RIGHTS SHOULD NOT BE TERMINATED BECAUSE THE FINDINGS OF THE TRIAL JUDGE AND THE EVIDENCE ADMITTED AT TRIAL DID NOT SUPPORT A LEGAL CONCLUSION THAT ALL FOUR PRONGS OF THE BEST INTEREST TEST HAD BEEN PROVEN BY CLEAR AND CONVINCING EVIDENCE

A. EACH PRONG OF THE N.J.S.A. 30:4C-15.1a TEST MUST BE MET BEFORE A MOTHER'S RIGHTS TO HER DAUGHTER MAY BE EXTINGUISHED BY THE STATE

B. THE FACTS FOUND BY THE TRIAL COURT DO NOT SUPPORT A CONCLUSION THAT PRONG ONE WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE

C. THE DIVISION DID NOT PROVE THAT V.D. WAS UNABLE OR UNWILLING TO OVERCOME THE HARM TO S.D.

D. THE DIVISION DID NOT PROVE THAT IT PROVIDED REASONABLE SERVICES TO HELP V.D. OVERCOME THE CONDITION THAT LED TO THE OUTOF-HOME PLACEMENT

E. THE DIVISION DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION WOULD NOT DO MORE HARM THAN GOOD

POINT II

THE COURT BELOW ERRED IN PERMITTING TEN YEARS OF HISTORY BETWEEN V.D. AND DYFS CONCERNING OTHER CHILDREN

POINT III

THE COURT BELOW ERRED IN REFUSING TO PERMIT VISITATION BETWEEN V.D. AND S.D. PENDING APPEAL

By way of additional issues for our consideration, V.D. raised the following contentions in her reply brief:

THE COURT BELOW ERRED IN FINDING THAT ALL FOUR PRONGS OF THE BEST INTEREST TEST WERE MET BY CLEAR AND CONVINCING EVIDENCE

A. ALTHOUGH V.D. DOES NOT HAVE STANDING TO ADVOCATE ON BEHALF OF F.M., THE IMPROPER TERMINATION OF HIS PARENTAL RIGHTS CREATES A QUESTION AS TO WHETHER S.D. IS LEGALLY FREE TO BE ADOPTED

B. DYFS FAILED TO PROVIDE REASONABLE SERVICES TO HELP V.D. OVERCOME THE CONDITION THAT LED TO THE OUT-OF-HOME PLACEMENT

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 the legal conclusions predicated on those findings are sound. We therefore affirm the judgment terminating V.D.'s parental rights substantially for the reasons stated by Judge Margaret M. Hayden in her thorough and well-reasoned twenty-seven-page written decision dated May 24, 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.

Heather Spencer and Shannon Paris, caseworkers for the Division, and Dr. Leslie Williams, the licensed clinical psychologist who conducted psychological and bonding evaluations, testified on the Division's behalf. Deborah Miller, a licensed drug counselor and clinical coordinator at the inpatient facility where V.D. now resides, testified on V.D.'s behalf, as did Wendy Watts, M.S.W., a social worker affiliated with the program. 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 Family Court determined that the Division satisfied each of the four statutory standards by clear and convincing evidence.

The following facts are noteworthy. Judge Hayden took into account that V.D., who is now forty-three years of age, has been a drug addict for more than ten years. V.D. has had two other children who tested positive at birth for opiates and other drugs: a son in 1996, and a daughter in 1999. The judge also considered the fact that they, along with two of her other minor children, reside with V.D.'s mother.

V.D. contends that it was improper for the court to rely upon her extensive prior history with the Division in deciding the question of termination as to S.D. In actuality, the court relied on the information only to give context to V.D.'s current status in treatment, and the inescapable fact that S.D. was

V.D.'s third child born drug-exposed. The drug treatment facility where she currently lives, is apparently the first in-patient drug treatment she has ever received. It is anticipated that after several more months in this residential program, she will require some form of highly structured transitional program for many months before she can be expected to lead a drug-free life in the community.

Judge Hayden also noted that despite having initially requested that S.D. be placed with her sister, L.W., V.D. now deeply resents her. L.W. wishes to adopt S.D., and the child is bonded to her. The judge also described an incident which occurred during supervised visitation on January 11, 2007, during which the child, then some nineteen months old, hit her mother's face. V.D. lightly hit the child back and said to her, "I hit children who hit." V.D. also exercised poor judgment when, after the bonding evaluation between V.D. and S.D., she saw S.D. reach out her arms to L.W. and say, "mama." Dr. Williams testified that instead of saying goodbye to her daughter, she became angered, put the child down, and walked out without saying a word to anyone.

When considering the first prong of the test, that the child has been or will be endangered by the parental relationship, Judge Hayden noted that the child was born exposed to methadone and cocaine, a significant harm in and of itself. Furthermore, after the child's removal, V.D. relapsed into drug use and disappeared. As a result, she neither availed herself of the Division's services, or maintained contact with her newborn child. The judge concluded that S.D. has been endangered by V.D.'s ongoing drug use.

The second prong of the test requires a showing that a parent is unable or unwilling to eliminate the harm, or is unable to provide a safe and stable home, and that additional delay in permanent placement will add to the harm suffered by the child. We agree with the judge that unless V.D. successfully completes treatment, and maintains her recovery, she will be unable to offer any home to S.D. It may be years, certainly many months, before she is able to do so. As the judge said:

[V.D.] is not available to provide a safe and stable home to her child now or in the foreseeable future. Moreover, the undisputed evidence is quite compelling that the child is bonded to her foster mother. Dr. Williams testified credibly and without contradiction that the child would suffer severe sadness and grief if she was removed from L.W., the only mother she ever knew. . . . [T]he [D]ivision has proven [the] second prong by clear and convincing evidence.

Regarding the third prong, that the Division has made reasonable efforts to correct the circumstances, the court found that the Division did the best it could in light of V.D.'s disappearance for over a year after the child's removal. N.J.S.A. 30:4C-15.1(a)(3). Given her residence at an out-of-state inpatient facility, the only services that the Division could realistically provide was supervised visitation. The reasonableness of the Division's efforts "will vary depending upon the circumstances of removal." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div.), certif. denied, 192 N.J. 68 (2007). In this case, V.D.'s absence made it impossible for the Division to do more than was done here. We concur with the judge's conclusion that the Division attempted to provide services, was willing to do so, and in fact, provided the only services practicable under the circumstances.

The fourth prong of the test is that termination "not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The judge found the evidence to be overwhelming that L.W. provided S.D. with a "stable permanent home" and had been a "nurturing psychological parent" since birth. Termination would not do more harm than good to S.D., who has no relationship with her natural mother whatsoever, and is strongly bonded to the foster mother who wishes to adopt her.

We need not address V.D.'s contention that visitation should have been permitted pending appeal, as it is rendered moot by this affirmance.

Lastly, V.D. objects to the termination of F.M.'s parental rights because he was never served with the guardianship complaint. She has no standing to object. The fact the father disappeared during the pendency of the proceedings, and that his whereabouts may not be presently known, is a factor that can be appropriately addressed during the adoption proceedings. It need not impact our consideration of this appeal. Any procedural errors, if they exist as to F.M., do not present an impediment to termination as to V.D.

"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). 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 the four elements that the Division must prove before parental rights may be terminated. The court made detailed findings as to V.D., and the findings and conclusions are adequately supported by clear and convincing evidence. We therefore affirm substantially for the reasons stated by Judge Hayden.

Affirmed.

20080624

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