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New Jersey Division of Youth and Family Services v. D.H.

July 2, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-82-07.

Per curiam.



Submitted June 3, 2009

Before Judges Cuff and Fisher.

In this appeal, we review a judgment terminating the parental rights of defendant D.H. to T.J.L.H., her daughter. Because the judgment was not supported by clear and convincing evidence, we reverse.


Defendant D.H. (hereafter "Donna"*fn1 or "the mother") gave birth to T.J.L.H. (the child) on February 2, 2005. Although neither Donna nor the child tested positive for drugs at birth, plaintiff Division of Youth and Family Services (the Division) commenced an action seeking custody of the child because of Donna's history of substance abuse and an open case regarding one of her other children.*fn2 The child was removed from Donna's care and placed with her oldest daughter, S.H., who was then twenty years old. Three weeks later, the child was removed from S.H.'s care and placed in foster care, where she presently resides.*fn3

At a fact finding hearing in March 2005, the judge found Donna was addicted to cocaine and had refused to address her substance abuse problem despite services provided by the Division. Donna was psychologically evaluated by Dr. Alan Gordon, who concluded that she was then not capable of caring for her children. She certainly needs services. She has to complete those services before she can be considered as an individual who is capable of caring for children. . . . She does not have a job. . . . She does not have stability in her life at this time.

Dr. Gordon further observed that the mother had reported to him domestic violence involving the child's named father.*fn4 Although the Division's brief couches this domestic violence as something Donna was "involved in," as if suggesting she may have been a combatant, in fact the report given to Dr. Gordon by Donna indicated the child's father hit her in the ribs, bent her arm back, broke three of her teeth and generally "beat the hell out of [her]" on one occasion. In short, the information provided to Dr. Gordon revealed that Donna had been a victim of domestic violence.

In November 2005, Dr. Vivian Chern Shnaidman conducted a psychiatric evaluation and concluded that Donna's "substance abuse and personality disorder are the most salient features of her overall makeup," and that it was unlikely that [she] will benefit from an inpatient [substance abuse] program [because] she does not have the insight into the necessity for rehabilitation. Rather she presents as defiant, and appears to prefer to relinquish custody of her children rather than relinquish her substance-abusing lifestyle.

Following these evaluations, a permanency hearing occurred on December 15, 2005, and the matter was then placed on a dual track of reunification and termination. That is, the judge found it appropriate to proceed with reunification but also held that termination should be sought if the mother failed to complete the recommended substance abuse and mental health treatments.

By the time of that permanency hearing, Donna was engaged in a substance abuse program that was not the program recommended by the Division. Donna also began a therapeutic relationship with Dr. Blanche LeVere on January 17, 2006.

Donna graduated from her drug treatment program in August 2006. By the time of the trial in this termination action, she had been drug free for approximately three years.

The record also reveals that, in August 2006, the mother's therapeutic relationship with Dr. LeVere ended on bad terms. In addition, on June 26, 2006, Dr. Jaime Gordon-Karp provided a psychological reevaluation of the mother and recorded that the mother continues to face difficulty in managing her anger in court. While she recognizes she has problems with her anger, she does not appear to recognize how her behavior is perceived by others. This continues to be an area of concern.

Dr. Gordon-Karp recommended that Donna continue with individual therapy and participate in anger management classes.

In a September 8, 2006 addendum to her report, Dr. Gordon-Karp opined that Donna's problems with anger have not subsided. In fact, her aggressive and explosive behaviors are pervasive in numerous settings and encounters.

Although, [Donna] has remained drug free, her behaviors have remained consistent. Based on the updated information*fn5 provided to this [p]sychologist, I have serious concerns regarding her ability to protect her daughter from harm.

On September 13, 2006, Dr. Gordon-Karp declined to perform the bonding evaluations required in the case because of what she referred to as the mother's "history of volatile behavior and her frustration directed toward me with regard to the [September 8, 2006] addendum."

Two days after Dr. Gordon-Karp's last comments, Dr. LeVere provided a summary which indicated that the mother's behavior makes it extremely challenging to help her work through her difficult issues.

Until [Donna] is willing to trust, let down her guard, and do the hard work needed to improve her attitude, appropriate long term change will be minimal. [Donna] has to desire to make these mental and behavioral changes.

[She] had not established a plan goal for reuniting with [the child]. . . . The one time that she was asked to identify plans for [the child], she responded in a hostile and angry mood.

Based on all this information, the judge concluded at a permanency hearing on December 15, 2006, that the Division's permanency plan that the child not be returned to her mother was appropriate and should be pursued.


On March 15, 2007, the Division commenced this action. At the conclusion of a nine-day trial, the trial judge rendered an oral decision and, thereafter, entered a judgment terminating the mother's parental rights to the child. The mother has appealed, arguing that the judge's findings were not supported by clear and convincing evidence.

Appellate review of a decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because trial court findings "are considered binding on appeal when supported by adequate, substantial, and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974), we will not intervene unless the findings "are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice," Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). See also Matter of Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993).

This standard of review requires that we defer to trial judges' findings of fact because trial judges are in a better position to evaluate the witnesses' credibility, qualifications, and the weight to be accorded their testimony. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). In other words, a trial judge's "'feel of the case' . . . can never be realized by a review of the cold record." Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 396 (2009). We also will give special deference to the fact findings of Family Part judges because of their special expertise in the field of domestic relations. Cesare v. Cesare, 154 N.J. 394, 412 (1998).

At the same time, we must always remain cognizant of the constitutional right of parents to "maintain a relationship with their children." Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007). And, although we must keep in mind that these rights are "fundamentally important," we remain mindful that "they are not absolute, and 'must be balanced against the State's parens patriae responsibility to protect the welfare of children.'" G.M., supra, 198 N.J. at 397 (quoting Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007)). Accordingly, while we owe deference to the factually-supported findings of trial judges in such matters, in balancing the competing interests, we must "ensure that the statutory and constitutional rights of the parent or guardian are scrupulously protected." G.M., supra, 198 N.J. at 397 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).


In reaching his decision, the trial judge correctly turned to N.J.S.A. 30:4C-15.1a, which mandates that, in order to obtain the termination of parental rights, the Division is required ...

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