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New Jersey Division of Youth and Family Services v. A.T.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 6, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
A.T. AND J.A.S., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF N.S. AND J.S., MINORS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FG-15-08-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 15, 2008

Before Judges Reisner and Alvarez.

In these consolidated appeals, A.T. and J.A.S. appeal from an order dated May 17, 2007 terminating their parental rights to their two children, N.S. and J.S. We affirm substantially for the reasons stated by Judge Strelecki in her comprehensive oral opinion issued on May 17, 2007.

I.

The factual background is set forth in great detail in Judge Strelecki's opinion. We summarize the most pertinent facts here. Both parents have significant, continuing drug problems which have at times resulted in each of them being incarcerated. The parties' daughter N.S. was born on March 30, 2005. The daughter was removed from her parents on October 18, 2005 due to defendants' drug use and their failure to take N.S. for medical treatment for Hepatitis-C exposure. She has been living with her paternal aunt since October 2005.

The parties' son J.S. was born on December 2, 2006. A.T. used drugs while she was pregnant with J.S., who was born addicted to drugs and had to be placed on morphine after he began going through withdrawal after birth. J.S. was removed from his mother at birth and has lived with the paternal aunt since he was released from the hospital several weeks after he was born. The aunt and her husband want to adopt both children, but would nonetheless be willing to let defendants have contact with the children if defendants can maintain a drug-free lifestyle.

The record contains extensive evidence of DYFS's attempts to provide defendants with services to address their drug problems, address anger management and domestic violence issues, and develop parenting skills. The parents did not cooperate with these efforts, missed visitation appointments, and continued using illegal drugs. At the time of the termination hearing, defendants were still not able to act as parents for these children. In fact, J.A.S. and A.T. were both incarcerated, although they attended the trial. According to the State's expert Dr. Lee, neither parent was psychologically prepared to act as a parent. A.T.'s expert, Dr. Whitehead, agreed with that assessment of A.T.

Meanwhile, in the years since she was placed with her aunt and her husband, N.S. has bonded with these foster parents.*fn1 The State produced expert testimony from Dr. Lee that the children were too young to allow a definitive opinion that they would be harmed if removed from the foster parents, but they needed a permanent placement. According to Dr. Lee, N.S. has not developed a significant bond with defendants, and would not suffer psychological harm if defendants' parental rights were terminated.

In a twenty-six-page oral opinion, Judge Strelecki concluded that neither parent was capable of caring for the children, that they had neglected the children through persistent drug abuse and refusal to cooperate with the services offered by DFYS, that permanency was essential for the children's well-being, and that termination of parental rights was in the children's best interests.

II.

On this appeal, defendant A.T. raises the following points:

POINT I: THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THE STATUTORY REQUIREMENTS OF N.J.S.A. 30:4C-15 AND 30:4C-15.1.

A. There Was Insufficient Evidence To Prove By Clear And Convincing Evidence That N.S. Or J.S.'s Safety, Health Or Development Has Been Or Will Continue To Be Endangered By The Parental Relationship Under Factor Number 1.

B. There Was Insufficient Evidence To Prove By Clear And Convincing Evidence That The Defendant Was Unwilling Or Unable To Eliminate The Harm Facing N.S. And/Or J.S. Or Is Unable Or Unwilling To Provide A Safe And Stable Home For Her Daughter, And The Delay Of Permanent Placement Will Add To The Harm, Under Factor Number 2.

C. DYFS Failed To Prove By Clear And Convincing Evidence That It Made Reasonable Efforts To Help The Parent Correct The Circumstances Which Led To The Children's Placement With The Foster Parent, And The Court Failed to Consider Alternatives To Termination Of Her Parental Rights.

D. There Was Insufficient Evidence To Prove By Clear And Convincing Evidence That Termination Of The Defendant's Parental Rights Will Not Do More Harm Than Good.

Defendant J.A.S. raises the following points:

POINT I: THE EVIDENCE PRESENTED DID NOT DEMONSTRATE THAT D.Y.F.S. HAD MET ITS BURDEN TO OVERCOME DEFENDANT J.S.'S FUNDAMENTAL CONSTITUTIONAL RIGHT TO HAVE A RELATIONSHIP WITH HIS CHILDREN OR SATISFY ANY PRONG OF THE FOUR PART TEST FOR TERMINATING PARENTAL RIGHTS AS SET FORTH IN N.J.S.A. 30:4C-15.1A.

A. DYFS Failed To Prove That Defendant, J.S., Caused His Children's Safety, Health Or Environment To Be Endangered, Therefore, Prong One Of The Test Was Not Met.

B. Since DYFS Could Not Prove The First Prong Of The Test It Cannot Show That Defendant, J.S., Is Unable Or Unwilling To Provide A Safe And Stable Home For His Children Or That A Delay Will Do Them Harm.

C. The Court Failed To Properly Evaluate The Third Prong Of The Four Prong Test.

D. Termination Of J.S.'s Parental Rights Will Do More Harm Than Good; Therefore DYFS Did Not Satisfy The Fourth Prong Of The Test.

In order to obtain termination of parental rights in the best interests of the child, DYFS must prove the following four 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 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.

[N.J.S.A. 30:4C-15.1a.]

"The four criteria enumerated in the best interests standard 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." In the Matter of K.H.O., 161 N.J. 337, 348 (1999). Moreover, "parental fitness is the key to determining the best interests of the child. The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid.

Recognizing the special role of the trial judge in finding facts based on the observation of witness testimony and the opportunity to judge their credibility, our standard of review is deferential:

Review of a trial court's termination of parental rights is limited. A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by "adequate, substantial and credible evidence" on the record. Additionally, as a general rule, we must grant deference to the trial court's credibility determinations. However, "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." Still, even in those circumstances we will accord deference unless the trial court's findings "went so wide of the mark that a mistake must have been made."

[DYFS v. M.M., 189 N.J. 261, 278-79 (2007) (citations omitted).]

Having reviewed the record, we readily conclude that Judge Strelecki's comprehensive opinion correctly applied the applicable law and is supported by substantial credible evidence. R. 2:11-3(e)(1)(A). In this case, despite diligent efforts by DYFS to provide services, defendants continued to use drugs and to neglect their parental responsibilities, while their children remained in the care of foster parents. Even at the time of trial, defendants were not yet able to act as parents. Their children are entitled to the permanency and stability that termination of defendants' parental rights, and adoption by their aunt and uncle, will provide them. Defendants' appellate arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).*fn2 We affirm substantially for the reasons stated in Judge Strelecki's opinion.

Affirmed.


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