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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 25, 2009

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

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FG-17-27-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 20, 2009

Before Judges Sapp-Peterson and Alvarez.

J.K. appeals a January 15, 2008*fn1 order terminating her parental rights to S.S., a baby girl born on September 6, 2006, and granting guardianship and control of S.S. to plaintiff, the Division of Youth and Family Services (Division).*fn2 We affirm.

The Division's involvement with J.K. predated S.S.'s birth. Its first involvement occurred in 2000 with the removal of her first born child, M.S., who was five years old at that time. He was placed with his father, and at the time of trial, J.K. had not seen him in four years, purportedly because M.S.'s father would not allow her to do so. Her second child, A.S., born in 2000, was adopted by a maternal aunt and uncle. When her third child, J.S., was born in June 2004, J.K. was incarcerated.

Although neither she nor her child tested positive, J.K. admitted drug usage during this pregnancy. The Division placed J.S. in foster care and provided services to J.S. Because J.K. substantially complied with services the Division provided, it returned J.S. to J.K. in late 2004. On January 10, 2005, however, J.S. was once again removed from J.K.'s custody because of her relapse into drug use. She voluntarily surrendered her rights to J.S. in June 2006.

One day after S.S.'s birth, the Division received a referral from the hospital expressing concern for S.S.'s welfare because J.K. did not have custody of her three other biological children. J.K. and S.S. both tested negative for drugs. The Division obtained care and supervision of S.S. and permitted J.K. to continue as the custodial parent to S.S. but provided J.K. with in-home parenting education from FamCare.

During a November 16 visit from a Division caseworker, the caseworker was reportedly concerned about J.K.'s behavior around S.S. and suspected that J.K. could be under the influence of drugs. The Division did not seek removal of S.S. from J.K.'s care at that time. J.K., however, was aware that an arrest warrant had been issued by the Salem County Superior Court Drug Court for her failure to appear for drug court and violation of probation. In anticipation of her pending arrest, J.K., with the consent of the Division, arranged for a friend to keep S.S.

After two weeks, the friend advised the Division that this arrangement could not continue because of S.S.'s constant crying. On December 4, the Division obtained custody of S.S., and S.S. has remained in foster care since that time.

On December 18, 2006, the court sentenced J.K. to a three- year state prison term for violation of the terms and conditions of her drug court probation. The court ordered supervised visitation. J.K. was released from incarceration in May 2007 but was again arrested three months later as a result of further drug court violations that included her acknowledged drug usage. She remained incarcerated at the time of the termination hearing but was scheduled to be released December 5, 2007. In total, J.K. had been incarcerated for nine months of S.S.'s fifteen- month-old life at the time of trial.

A trial was held before Family Part Judge Darrell M. Fineman on November 26 and 27, 2007. On January 15, 2008, the court entered an order terminating J.K.'s rights. The order was accompanied by a detailed and comprehensive thirty-two page written opinion. In that decision, Judge Fineman carefully evaluated the proofs under the four-part test first set out in New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986), later codified in N.J.S.A. 30:4C-15.1(a). As to the first prong, "The child's health and development have been or will be endangered by the parental relationship," N.J.S.A. 30:4C-15.1(a)(1), Judge Fineman found:

In this matter J.K. has proven to have serious long[-]term drug dependence with cocaine and marijuana. This has caused her to have repeated incarceration, lack of employment and unstable housing as well [as] the loss of her three prior children.

Even though J.K. has had three prior children removed from her care, she had an opportunity to care for S.S. and unfortunately that care became so tenuous that there were great concerns for S.S.'s well being.

With respect to the second prong, whether J.K. has been unwilling or unable to provide a safe and stable home for S.S., whether a further delay in permanently placing S.S. would add to the harm, and whether, in considering further harm, separating S.S. from her foster parent "would cause serious and enduring emotional or psychological harm," N.J.S.A. 30:4C-15.1(a)(2), the judge determined:

In this case, J.K. offers a plan in which when she is released from prison she will participate in the MICA [Mentally Ill Chemical Abuser] program, live with her father and hopefully will become employed. This is similar to the plans that she has proposed prior to losing custody of S.S. Not one professional, including her own, supports her optimistic view of her ability to prevent further harm to S.S. Dr. Jeffrey's opinion is that this type of mental disorder is very difficult to treat because the patient cannot change his or her underlying personality but can only deal with the symptoms. In J.K.'s eight year history with the Division, she has not effectively entered into treatment or demonstrated the ability to learn from the events that seriously affected her children so that she could become a safe parent. Even when placed in an alternative sentencing program, Drug Court, she was unable to maintain her sobriety or obey simple rules . . . .

Regarding the third prong, the Division has made reasonable efforts to provide services to help J.K. correct the circumstances that ultimately led to S.S.'s placement out of her home and whether the court has considered alternatives to termination of parental rights, N.J.S.A. 30:4C-15.1(a)(3), Judge Fineman found:

In this case, the Division attempted to provide numerous services to J.K., both prior to losing her other three children and prior to the placement of S.S. in this case. These services include substance abuse evaluations on June 21, 2004, January 4, 2006, August 30, 2006, June 27, 2006, substance abuse treatments at Maryville on three occasions, SODAT*fn3 [Services to Overcome Drug Abuse Among Teenagers] on three occasions and in-patient treatment. As J.K. stated to the evaluator she has had 8 or 9 treatment opportunities, nonetheless, she continued to go back and use CDS's which resulted in her recent incarceration.

No one has recommended the return of S.S. to J.K.'s care despite all of this treatment. Even J.K.'s expert thinks that another year of treatment is necessary for it to be safe to return S.S. to J.K.'s care.

There seems to be no alternative available but to terminate parental rights. J.K.'s plan was to place the child with her friend, but the friend was unable to take care of S.S. No other family member stepped forward to take the child and so the child was placed in a foster home. Therefore this Court finds by clear and convincing evidence that there was no alternative to the termination of parental rights.

Finally, as to the fourth prong, namely, whether termination of J.K.'s "parental rights will not do more harm than good," N.J.S.A. 30:4C-15.1(a)(4), the judge concluded:

In this case, both Dr. Jeffrey and Dr. Bogacki opined that J.K. is unable to safely parent S.S. Both [d]octors also found that S.S. does not have a secure bond with J.K. Dr. Jeff[re]y found that S.S. will not suffer any enduring harm from the termination [of] parental rights with J.K. On the other hand, Dr. Jeffrey did find after observation and psychological testing of S.S. [and of] the foster parents that serious and enduring harm would befall S.S. if that bond was broken as they are acting as her psychological parents who wish to adopt her.

On appeal, J.K. raises the following points for our consideration:

POINT I THERE DID NOT EXIST SUBSTANTIAL CREDIBLE EVIDENCE SUPPORTING THE COURT'S FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

[POINT] A THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THE HEALTH AND DEVELOPMENT OF THE CHILD WAS AND CONTINUED TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

[POINT] B J.K. IS WILLING OR ABLE TO ELIMINATE THE HARM FACING HER CHILD.

[POINT] C THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP J.K. CORRECT THE CIRCUMSTANCES WHICH LED TO HER CHILD'S PLACEMENT OUTSIDE THE HOME.

[POINT] D DYFS DID NOT PREVAIL ON PRONG FOUR OF N.J.S.A. 30:4C-15.1A BECAUSE IT DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT CAUSE MORE HARM THAN GOOD.

Having carefully reviewed these contentions in light of the record and applicable law, we are not persuaded. We see no need for a discussion of the facts or the law. R. 2:11-3(e)(1)(A) and (E). We affirm substantially for the reasons cogently and comprehensively articulated by Judge Fineman in his January 15, 2008 decision.

Affirmed.


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