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New Jersey Division of Youth and Family Services v. J.B.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 25, 2008

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

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, No. FG-18-106-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 18, 2008

Before Judges Wefing and Collester.

J.B. appeals from a judgment entered by the trial court terminating his parental rights to his daughter, K.S.*fn1 After reviewing the record in light of the contentions advanced on appeal, we affirm.

K.S. was born on November 1, 2004, and is now approximately three and one-half years of age. Although T.S. has several other children, none of whom are in T.S.'s care and none of whom were the subjects of the proceedings below, K.S. is J.B.'s first child. It was T.S.'s conduct which led to a referral to the New Jersey Division of Youth and Family Services (DYFS) with respect to K.S. K.S. was removed from T.S.'s care in January 2005, when she was two and one-half months old. J.B. was incarcerated at the time.

DYFS considered J.B.'s mother, C.H., as an emergent placement for the baby. C.H. said she was willing to care for K.S. and told DYFS she was already caring for two other of her grandchildren. In the course of doing its background check, DYFS was advised by the New Brunswick Police Department that an arrest had recently been made at C.H.'s house for narcotics-related activity. Based upon that, K.S. was placed temporarily in foster care.

DYFS began the process of exploring the possibility of other relative placements. None of these proved viable. According to the record and the testimony accepted as credible by the trial court, C.H. told DYFS during this period that she had changed her mind and could not care for K.S. in light of her other responsibilities.

J.B., upon learning of the events that had transpired, corresponded with DYFS and the trial court, expressing his desire that K.S. reside with his mother, C.H. C.H. at that point expressed her willingness to care for K.S., and K.S. was placed in her care in March 2005. C.H. did take K.S. to visit with J.B. at least once during this period, because he remained in custody.

On May 3, 2005, however, custody of K.S. was shifted, pursuant to an order entered by the trial court, from C.H. to T.S. who by that time had entered a substance abuse program at Straight and Narrow directed to the needs of mothers with problems of addiction.

J.B. was released from custody the following day and resided with his mother. He said he visited with K.S. three times at Straight and Narrow.

J.B. has an admitted substance abuse problem. He has used marijuana, cocaine and heroin but has said he prefers alcohol. A large portion of his criminal history relates to his use of illegal drugs. J.B. was incarcerated for large portions of the FN litigation and for the entire period of the FG litigation.*fn2

DYFS recognized that the first element to which J.B. had to attend was dealing with his substance abuse problems. It sent him three separate notifications that it had scheduled substance abuse evaluations for him to attend, but J.B. did not respond to any of the three. J.B. said he did not attend the first scheduled evaluations because he had bronchitis. He provided no explanation, however, for his failure to respond in any way to the succeeding notifications. He made no effort to remain in contact with DYFS during the periods that he was not in custody. Because of his silence and inaction, the trial court suspended his visitation.

The following month, in June 2005, T.S. left Straight and Narrow without permission and did not return. She did not take K.S. with her but simply left the baby there. DYFS was informed, and they in turn contacted C.H. who said she could not take K.S. that day because she was leaving to attend a long-scheduled family reunion. K.S. was thus placed with a foster family. She has resided with that same foster family ever since.

Two experts testified at trial, Alan S. Gordon, Ed.D., for DYFS, and Donald J. Franklin, Ph.D., for J.B.*fn3 Both Dr. Gordon and Dr. Franklin found that K.S. had no present relationship with J.B. K.S. was so emotionally distraught during the bonding evaluation that Dr. Gordon attempted to conduct between the child and J.B. that it had to be terminated after approximately fifteen minutes. Although J.B. contends that the circumstances under which that evaluation was conducted led to that result, Dr. Franklin, defendant's own expert, candidly conceded the absence of any relationship between J.B. and K.S. That was hardly surprising in light of the few times that J.B. had seen K.S. Dr. Franklin did testify that with time J.B. would be able to foster such a bond.

Dr. Gordon conducted a bonding evaluation between K.S. and her foster parents and found a deep bond. He expressed the opinion that K.S. would suffer enduring harm if she were removed from their care. Dr. Franklin did not conduct a bonding evaluation between K.S. and her foster parents but did express the opinion that she would suffer harm in the future if they were to adopt K.S. because K.S. is African-American and the foster parents Caucasians.

On appeal, J.B. raises the following issues for our consideration.

I. THE DIVISION FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE J.B.'S PARENTAL RIGHTS IN ORDER TO PROTECT HIS CHILD'S BEST INTERESTS.

A. Standard of Review

B. The State Failed to Prove The Second Prong Because J.B. is Capable of Eliminating the Harm to K.S.

C. The State Failed to Prove The Third Prong Because It Failed to Make Any Efforts Whatsoever to Provide J.B. with Appropriate Services

1. DYFS Ignored J.B.

2. J.B. Not Provided Notice of Hearings and Right to Be Heard

3. DYFS Ignored C.H.

4. K.S.'s Rights Were Violated

D. The State Failed to Prove That Terminating J.B.'s Parental Rights Would Not Do More Harm than Good

II. J.B.'S CONSTITUTIONAL RIGHTS OF DUE PROCESS WERE VIOLATED BECAUSE HE WAS NOT TIMELY SERVED WITH COMPLAINTS, WAS NOT NOTIFIED OF HEARINGS, NOT TRANSPORTED TO COURT FOR HEARINGS, AND COUNSEL WAS NOT APPOINTED UNTIL LATE IN THE PROCEEDING

The relationship between parent and child is fundamental, and a parent's right to enjoy the relationship with his or her child is constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). The State may act to sever that relationship only when necessary to protect the child from the risk of serious emotional or physical harm. New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591, 599 (1986). To prevail on a claim that the parent-child bond should be severed, DYFS must establish by clear and convincing evidence the four prongs of N.J.S.A. 30:4C-15.1(a).

1. The child's safety, health and development has been or will continue to be endangered by the parental relationship;

2. The parent is unwilling or unable to eliminate the harm or is unwilling or unable 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.

In his brief, J.B. does not contest the sufficiency of the evidence with respect to the first prong. With respect to the second prong, J.B. points to the testimony of Dr. Franklin that J.B. is capable of parenting K.S. We find no error in the trial court's conclusion that this was an insufficient basis to withhold termination of J.B.'s parental rights. Dr. Franklin did not testify that J.B. had the present ability to parent K.S. but that he had the potential to develop the ability. That potential, moreover, was dependent upon his overcoming his longstanding problem of substance abuse. The second element of N.J.S.A. 30:4C-15.1(a) is that the biological parent is . . . unable . . . to eliminate the harm facing the child or is unable . . . to provide a safe and stable home for the child. . . . Such harm may include evidence that separating the child from his resource family would cause serious and enduring emotional or psychological harm to the child.

It is clear that J.B. has been unable to address his serious substance abuse problems. It is also clear that K.S. is securely attached to her foster parents. Delaying termination in the hope that J.B. will, in the future, be able to overcome his abuse of drugs and alcohol and stabilize his life will only strengthen the bond that K.S. has with her foster parents and make severing that bond even more traumatic for her if J.B.'s efforts prove fruitless.

We also reject J.B.'s challenge to the third prong, requiring that DYFS make reasonable efforts to provide services to him. As the trial court noted in its letter opinion, this aspect involves a two-way process: DYFS must make reasonable efforts and the biological parent must make a reasonable response. Here, J.B. failed to respond to DYFS's attempts to reach out to him. Further, our review of the record reveals that many of the alleged deficiencies of which J.B. complains in his brief occurred during the FN litigation, not during the guardianship proceedings, which are the only subject of this appeal.

In addition, we reject so much of J.B.'s argument with respect to the third prong that asserts that K.S.'s rights were violated. K.S. was represented by counsel below and on appeal. Her attorney joins with DYFS in asking that we affirm the trial court's judgment so that her anticipated adoption by her foster parents can proceed.

Nor are we persuaded by J.B.'s argument with respect to the fourth prong, requiring that termination not do more harm than good. In our judgment, the proof is overwhelming that K.S. would suffer the greater harm if she were to be removed from her foster parents, the only home she has ever known. Because, as even Dr. Franklin concedes, K.S. has no relationship at all with J.B., and she will not suffer harm if the parental bond is severed. As to Dr. Franklin's opinion with respect to trans-racial adoption, we agree with the trial court's analysis expressed in its letter opinion of June 12, 2007.

Finally, we reject J.B.'s contention that his due process rights were violated. He complains that he was not transported from prison to attend the fact-finding hearing at which the trial court decided to transfer K.S. from C.H. to T.S. at the Straight and Narrow program. First, this incident occurred in the course of the FN litigation, not the FG litigation. It is only the FG litigation from which J.B. has appealed. Further, J.B.'s assertions as to what would have happened if he were present at that fact-finding hearing amount to no more than speculation.

We do not minimize the loss that J.B. will experience as a result of our decision in this appeal. It is, however, K.S.'s interests which must ultimately prevail.

The judgment under review is affirmed.


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