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State of New Jersey Division of Youth and Family Services v. T.B.


October 13, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-03-08.

Per curiam.



Submitted September 24, 2009

Before Judges Gilroy and Simonelli.

Defendant T.B. appeals from the December 15, 2008 judgment of guardianship terminating her parental rights to her children, A.R.C., Jr. (Aaron), born July 5, 2004, and D.D.C.-B. (David), born September 30, 2005.*fn1 The judgment also terminated the parental rights of the children's biological father, A.R.C., Sr. He did not appeal.*fn2

We briefly summarize the facts from the record. Defendant first became involved with plaintiff Division of Youth and Family Services (the Division) in September 2004. Since then, she has failed to obtain secure, safe and stable housing for the children, has been unemployed,*fn3 and has not addressed the children's special needs. Defendant also failed to comply with the numerous services the Division and other agencies offered, including psychological and domestic violence counseling, anger management, parenting skills classes, and vocational training and employment assistance. She also squandered numerous housing placements.

Aaron suffers from developmental delays, and several medical conditions, including spina bifida, asthma and a kidney defect. He has been diagnosed as "medically fragile," and receives speech, language and occupational therapies, and treatment from several medical specialists. The child did not live with defendant for the first seven months of his life, and he has been in foster care since he was eighteen months old. Since April 2006, he has been with his present foster parents. Although the foster parents initially agreed to Kinship Legal Guardianship (KLG), they changed their minds and now want to adopt the child.

David has speech problems. He has been in foster care since his shortly after his birth in September 2005. Since December 2005, he has been with his present foster mother, who wants to adopt him.

Prior to the termination trial, defendant consistently visited the children. However, she never offered any maternal family members as placement alternatives, and the family friends and paternal relatives she offered were unsatisfactory due to either their criminal histories or their previous involvement with the Division. Defendant also offered no viable permanent plan for reunification.

Defendant's psychological evaluations reveal both her inability to care for herself, much less her special needs children, and the risk that the children will face further harm if placed in her care. Bonding evaluations and expert testimony on bonding found credible by the trial judge reveal a weak and insecure bond between defendant, a bond that can easily be severed without any harm to the children. On the other hand, the children are securely bonded to their foster parents and would suffer severe harm if removed from them, a harm which defendant cannot ameliorate.

A court can terminate parental rights when the Division shows by clear and convincing evidence that:

(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.]

In a detailed, fifty-five page oral opinion, Judge Blackburn carefully reviewed the evidence presented and concluded that the Division proved all four prongs by clear and convincing evidence.

Our review of a family judge's findings is a limited one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance,'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will "not disturb the 'factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

We defer to the trial judge's findings of fact if supported by clear and convincing evidence in the record. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004); In Re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993). We also afford deferential respect to a family judge's credibility determinations. N.J. Div. of Youth and Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (citing Rova Farms, supra, 65 N.J. at 483-84 (1974)).

Based on our review of the record, in light of the legal standards and arguments presented, we are satisfied that Judge Blackburn properly concluded that the Division proved all four prongs of N.J.S.A. 30:4C-15.1a by clear and convincing. Her opinion tracks that statutory requirements of N.J.S.A. 30:4C-15.1a, accords with In re Guardianship of K.H.O., 161 N.J. 337 (1999), In re Guardianship of D.M.H., 161 N.J. 365 (1999), and New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591 (1986), and is supported by the record, P.P., supra, 180 N.J. at 511. We affirm substantially for the reasons expressed by the judge in her comprehensive and well-reasoned oral opinion of December 15, 2008. R. 2:11-3(e)(1)(E). We add the following.

Although the judge twice stated that the Division proved its case by a "preponderance of the clear and convincing evidence," there is no indication that this was anything more than mistaken phrasing. The judge made clear at the outset of her oral opinion that the Division had a clear and convincing burden of proof. Also, the judgment of guardianship states that the Division had proven "its case under N.J.S.A. 30:4C-1 5.1, by clear and convincing evidence." Because the evidence overwhelmingly supports termination, we conclude that no error occurred in the judge's mistaken use of the phrase "preponderance of the clear and convincing evidence."

We are also satisfied that the judge cited the evidentiary basis upon which she determined that the Division had established each statutory criteria by clear and convincing evidence, and that she adequately articulated her findings of fact and conclusions of law. R. 1:7-4(a); N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002). Although the judge did not specifically cite any cases, established case law clearly supports her decision.

Finally, we reject defendant's contention that KLG is an alternative to termination. KLG is employed when determined to be in the best interests of the child because "adoption is neither feasible nor likely." N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 88 (App. Div. 2003). Here, adoption is both feasible and likely.


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