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


December 15, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-42-09.

Per curiam.



Submitted: November 4, 2009

Before Judges Gilroy and Simonelli.

Defendants K.S., the biological mother of Jason,*fn1 born in June 2007, and S.B., the biological father, appeal the termination of their parental rights. Following a non-jury trial, Judge Critchley rendered a written decision and entered judgment in favor of plaintiff Division of Youth and Family Services (Division). On appeal, S.B. contends that the Division failed to establish all four prongs of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. K.S. only challenges the judge's findings on the second, third and fourth prongs. Both defendants also contend that the judge failed to consider kinship legal guardianship (KLG), N.J.S.A. 3B:12A-1 to -7, as an alternative to termination of parental rights. We affirm.

On April 16, 2007, the Division first became involved with K.S., a long-time drug abuser, after receiving a referral that she was abusing benzodiazepine (Xanax) while in outpatient treatment for methadone maintenance and benzodiazepine detoxification. K.S. was six months pregnant with Jason at the time and was attending the prenatal high risk clinic at Morristown Memorial Hospital (MMH). K.S. admitted to a Division caseworker that she had used heroin and cocaine in the past and was on probation for drug use; however, she denied presently using drugs, and only ingested the Xanax prescribed by her psychiatrist for severe depression and methadone.

On June 6, 2007, two days after Jason's birth, MMH notified the Division that Jason had tested positive for cocaine, opiates, methadone and benzodiazepines at birth, and was suffering from significant withdrawal symptoms. A Division caseworker interviewed K.S. and S.B. at MMH that day. K.S. admitted using cocaine the night before and using heroin a few months prior to Jason's birth. She identified S.B. as Jason's father and confirmed his awareness of her pregnancy.*fn2 K.S. later stipulated at a compliance hearing that she had tested positive for cocaine on the day of Jason's birth, thus substantiating abuse or neglect.

S.B. denied any drug use and indicated his willingness to care for Jason and be active in the child's life. He also indicated his and his family's desire to be a potential placement resource for the child. He did not deny being the child's biological father, and knowing of the pregnancy and K.S.'s drug use prior to the pregnancy.

Jason remained in the hospital for three months due to severe withdrawal symptoms and other medical complications resulting from his drug exposure in utero. He has been diagnosed as medically fragile, receives physical and occupational therapy and early intervention services to address his speech and other developmental delays, and had surgery on both eyes to correct a strabismus, or "lazy eye" condition. Upon discharge from the hospital, the Division placed Jason with his maternal grandmother, R.P., where he remains. R.P. wants to adopt Jason, and has expressed her intent to permit both parents to remain in the child's life.

K.S.'s history with the Division has been marked by continued drug abuse, including her addiction to Xanax, failed attempts at drug rehabilitation and at therapy to address her psychiatric problems,*fn3 lack of employment, and non-compliance with services the Division had offered her. Psychological evaluations reveal K.S.'s fair prognosis and likelihood of relapse.

Contrary to his denial to the Division's caseworker, S.B. was also a drug abuser. His history with the Division has also been marked by his continued drug abuse, failed attempts at drug rehabilitation and individual therapy, and non-compliance with services the Division had offered him.

Although knowing he was Jason's biological father, S.B. initially failed to respond to the Division's numerous attempts to contact him. A court-ordered psychological evaluation revealed that S.B. was ambivalent about his role as a father, did not have a long-term parenting plan for Jason, and could not assume responsibility for the child without significant support and guidance. Also, S.B. did not request visitation until October 4, 2007, and he did not complete the necessary intake to begin visitation until three months thereafter.

On August 21, 2007, S.B. was arrested for possession of marijuana and drug paraphernalia. He failed to comply with court-ordered substance abuse treatment and regularly tested positive for marijuana from December 2007 to April 2008.

On May 15, 2008, Judge Critchley approved the Division's plan of termination of parental rights followed by R.P.'s adoption of Jason. On July 16, 2008, the Division filed the guardianship complaint. In August 2008, S.B. finally began addressing his substance abuse; however, K.S. relapsed, testing positive for cocaine and heroin.

Because S.B. was progressing in drug treatment, in September 2008, the Division considered reunification. The plan was short-lived. By November 2008, S.B. was again non-compliant. He discontinued individual therapy, failed to communicate with the Division, and failed to plan for or consistently visit Jason.

The termination trial began on January 12, 2009. By that time, R.P. had been Jason's sole caretaker for nearly one-and-a-half years. There is no dispute that R.P. has provided Jason excellent and nurturing care, that the child has thrived in her care, and that he is bonded to her. There also is no dispute that Jason has a strong emotional attachment to his parents. However, the Division's expert psychologist, Alison Winston, Ph.D., opined that K.S.'s risk of relapse, failure to address her psychological problems, and her continued use of Xanax made her prognosis fair and her ability to safely parent Jason questionable. The doctor concluded that K.S. was not fit to parent Jason and could not become fit in the foreseeable future.

As to S.B., Dr. Winston emphasized that he had only been drug-free for nine months, and that the risk of relapse existed.

The doctor opined that S.B.'s failure to attend therapy and follow up with the Division indicated his inability to take responsibility for himself, let alone a special needs child. The doctor also expressed concern that S.B. was not fully cognizant of all the responsibilities involved in caring for a child, and that he could not follow up with all the services Jason needs. The doctor concluded that S.B. was not presently fit to parent Jason and needed a year or two to become fit.

Unlike defendants' experts, Dr. Winston conducted a comparative bonding analysis. The doctor concluded that R.P. is Jason's primary attachment figure and that Jason would suffer harm if removed from her care, which defendants could not alleviate, whereas, R.P. can alleviate any harm caused by the termination of parental rights. The doctor emphasized Jason's need for permanency and stability, which she found especially compelling given his special needs. She also emphasized R.P.'s willingness to permit defendants to have continued contact with Jason.

K.S.'s expert, Susan Herschman, Psy.D., conceded that K.S. was not presently fit to safely parent Jason and required at least six to twelve more months. The doctor also conceded that K.S. still suffers from panic attacks and physical problems, and that it would take K.S. one to four years to completely confront and deal with her psychological issues.

Dr. Herschman acknowledged Jason's bond to R.P. She opined, however, that severing K.S.'s parental rights would do more harm than good, and that K.S. could mitigate the adverse affects of separating Jason from R.P.

S.B.'s expert, James R. Reynolds, Ph.D., admitted that S.B. was not presently fit to safely parent Jason, and required at least four to six more months. Dr. Reynolds opined that Jason would suffer no negative impact if S.B. received no additional time.

On February 20, 2009, Judge Critchley rendered an oral opinion, finding that the Division had proved all four prongs of N.J.S.A. 30:4C-15.1 by clear and convincing evidence. As to the first and second prongs, Judge Critchley found that K.S. was not the sole cause of harm to Jason, and that S.B.'s failure to take responsibility knowing that he was Jason's father, along with his ambivalence about being the child's father, constituted constructive abandonment at a difficult time in the child's life. The judge also found that S.B. had not yet established himself as an independent adult and was substantially dependent on his parents. He also noted that S.B. tested positive for marijuana in April 2008, and disconnected with the Division in the fall of 2008, causing a failed reunification. The judge concluded that "[w]e can't have that confidence... that the harm has been eliminated and that we can count on a safe and stable home."

As to K.S., Judge Critchley found that her serious drug abuse history, her relapse in August 2008, her dependence on Xanax, and the danger of future relapse, indicate her inability to eliminate the harm facing Jason and to provide him a safe and stable home for him. The judge also found that the delay of placement will add to the harm caused by both parents because separating Jason from R.P. would result in serious and enduring emotional or psychological harm to the child.

As to the third prong, Judge Critchley found that the Division provided numerous services to both parents, including paternity testing, psychological and substance abuse evaluations, substance abuse treatment, individual therapy, parenting training, and visitation. The judge also emphasized the Division's substantial efforts to contact and engage S.B. in services, and to assist in his reunification with Jason. The judge also considered, and rejected, the alternatives of KLG or reunification with S.B., and he rejected affording defendants additional time, stating, "I don't see that necessarily as a viable and sensible alternative in this case, because it violates the [principle] of permanency and reasonably prompt permanency."

As to the fourth prong, Judge Critchley found that termination would not cause Jason any substantial harm. The judge emphasized Jason's need for permanency and his need to remain with R.P., his sole caretaker since birth.

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 in termination cases 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, 190 (App. Div. 1993). We also afford deferential respect to the 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)). With these standards in mind, we continue our analysis.

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.]

These "four criteria... 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 re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

A court is required under the first to consider the harm arising from the child-parent relationship. Ibid. "The harm shown under the first prong must be one that threatens the child's health and will likely have continuing deleterious effects on the child." Id. at 352. It may constitute one egregious harm or "the effect of harms" over time. Id. at 348.

Although each parent is assessed individually and the conduct of one parent is not imputed to the other, "the conduct of one parent can be relevant to an evaluation of the parental fitness of another parent. The determinative issue is whether the circumstances surrounding the parental relationship... cause harm to the child." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 288-89 (2007) (citations omitted). Parental unfitness is found where a parent "is unable or unwilling to prevent harm to the child irrespective of the source of the harm." Id. at 289 (citing N.J.S.A. 30:4C-15.1(a)(2); In re Guardianship of R.G.L., 344 N.J. Super. 418, 438-39 (App. Div. 2001)).

Additionally, a child's unfulfilled need for a permanent home is a harm in itself. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super 582, 591-92 (App. Div. 1996). Likewise, a parent's failure to provide "solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (citing K.H.O., supra, 161 N.J. at 352-54). Compounding the harm to a child born heroin-addicted is the parent's "persistent failure to perform any parenting functions and to provide nurture, care, and support for [the child.]" Id. at 380. Such inaction "constitutes a parental harm to that child arising out of the parental relationship [that is] cognizable under N.J.S.A. 30:4C-15.1(a)(1) and (2)." Id. at 380-81 (citing K.H.O., supra, 161 N.J. at 352-54).

The second prong relates to parental unfitness, and may be met by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of aprental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child. [K.H.O., supra, 161 N.J. at 353.]

"[T]he focus of the inquiry is not only whether the parent is fit, but also whether he or she can become fit within time to assume the parental role necessary to meet the child's needs." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). The second prong is also met if "the child will suffer substantially from a lack of stability and permanent placement and from the disruption of [his or] her bond with foster parents." K.H.O., supra, 161 N.J. at 363.

The third prong "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child." Id. at 354. It requires the Division to make reasonable efforts to assist the parent. There must be reasonable "attempts by an agency authorized by the [D]ivision to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure." N.J.S.A. 30:4C-15.1c. Such "reasonable attempts" include:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation.


As part of its third-prong inquiry, the court must also consider the alternatives to termination of parental rights. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434-35 (App. Div. 2001) (citing N.J.S.A. 30:4C-15.1a(3)).

The fourth prong seeks to determine whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1a(4). This prong "'serves as a fail-safe against termination even where the remaining standards have been met.'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007)). "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." Ibid. The court must determine "whether... the child will suffer greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents." K.H.O., supra, 161 N.J. at 355.

Because harm to the child stemming from termination of parental rights is inevitable, "the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid. Rather, the court's inquiry is one of comparative harm, for which the court must consider expert evaluations of the strength of the child's relationship to the biological parents and the foster parents. Ibid. (citing J.C., supra, 129 N.J. at 25). Thus, to satisfy this prong, the Division must "offer testimony of a 'well qualified expert who has had full opportunity to make a comprehensive, objective and informed evaluation' of the child's relationship with both the natural parents and the foster parents." M.M., supra, 189 N.J. at 281 (quoting J.C., supra, 129 N.J. at 19).

Based on our review of the record, in light of the legal standards and arguments presented, we are satisfied that Judge Critchley properly concluded that the Division proved all four prongs of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. The judge's opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1a, accords with K.H.O., D.M.H., and A.W., and is supported by sufficient credible evidence in the record.

Jason was born drug-addicted. Despite knowing that K.S. abused drugs prior to her pregnancy, and that he was Jason's father, S.B. did nothing to ensure that his son was born drug-free. Accordingly, S.B. shares in the responsibility and blame for the harm caused to Jason. M.M., supra, 189 N.J. at 288-89.

S.B. also failed to perform any parenting function, he deprived Jason of the nurture and care the child needed while suffering from withdrawal, and he deprived Jason of a permanent, safe and stable home. S.B. was ambivalent about fatherhood and completely absent from Jason's life for the first three months, and he made no plan for his son. He was arrested shortly after Jason's birth for possession of marijuana, continued abusing drugs after Jason's birth, was non-complaint with services, including parenting training, caused a failed reunification, and cannot not safely parent his son. The harm to Jason caused by S.B.'s conduct, and his unwillingness or inability to eliminate that harm and provide his son with a safe and stable home, could not be clearer.

The same is true of K.S. She has not completely resolved her drug abuse or psychiatric problems, remains dependent on Xanax, continues to suffer anxiety and panic attacks, is at great risk of relapse, and cannot safely parent her child.

Additionally, the Division offered defendants numerous services to assist them in resolving the circumstances and conditions that led to their involvement with the Division. The judge also considered, and properly rejected, reunification as an alternative to termination offered by defendants. He also found KLG inappropriate because adoption is feasible and likely.

N.J.S.A. 3B:12A-1c; see also New Jersey Division of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 88 (App. Div. 2003) (holding that KLG "is not intended as an equally available alternative to termination that must be considered in order to satisfy the third element of N.J.S.A. 30:4C-15.1.")

Finally, we are satisfied that termination of parental rights will not do Jason more harm than good. Only Dr. Winston, the Division's expert, conducted a comparable analysis of the harm Jason would suffer if defendants' parental rights were terminated versus his removal from R.P. She concluded that R.P. was Jason's primary attachment figure, and that the child would suffer harm if removed from her care, which defendants cannot alleviate.

There is no doubt that Jason needs permanency and that any delay in permanency, even a short one, will add to the harm he has already suffered. "A child is not a chattel in which a parent has an untempered property right" and should not "be held prisoner of the rights of others, even those of his or her own parents." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 110-11 (App. Div.), certif. denied, 180 N.J. 456 (2004). New Jersey's strong public policy favors permanency. K.H.O., supra, 161 N.J. at 357. "[C]hildren have an essential and overriding interest in stability and [a permanent home]."

J.C., supra, 129 N.J. at 26. They "must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement." N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209 (App. Div.), certif. denied, 192 N.J. 293 (2007).

The Division's efforts to reunite Jason with K.S. or S.B. failed. Jason's best interests require that he remain in R.P.'s permanent, safe, and stable care and that K.S.'s and S.B.'s parental rights be severed. In re Guardianship of K.L.F., 129 N.J. 32, 43-44 (1992); C.S., supra, 367 N.J. Super. at 110.


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