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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 11, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
K.R., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF R.C.C., JR., MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-36-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 22, 2010

Before Judges Reisner, Yannotti and Chambers.

K.R. appeals from an order dated March 9, 2009 terminating parental rights to R.C.C., Jr. We affirm.

I.

These are the most pertinent facts. K.R. has a long history of drug abuse. She has also been diagnosed with severe mental illness. R.C.C., Jr. is her fourth child. Due to her mental health and substance abuse issues, she lost custody of three other children, beginning with a child born in 1994, when K.R. was sixteen. All of those children were born testing positive for cocaine.

R.C.C., Jr. was born on February 20, 2007. At that point his father, R.C.C., to whom K.R. was not married, was incarcerated.*fn1 The baby was removed from K.R. at birth because he tested positive for PCP and cocaine, as did K.R. Her explanation for the presence of drugs in their systems was that she "accidentally" ingested some PCP. After taking custody of the baby, the Division of Youth and Family Services (DYFS or Division) referred K.R. to a specialized program for persons with mental illness and substance abuse problems (MICA).

However, it was difficult to find her a placement because she had previously been barred from the Catholic Charities network due to prior verbal assaults on their staff.

DYFS was able to help her attend the Medallion MICA program, but K.R. was terminated for lack of consistency. K.R. then began another program at Trenton Treatment. However, K.R. went to the intake but was terminated from the program because she did not follow through with treatment. K.R. participated in a third program, AAMH, but her attendance was sporadic and she reported to DYFS that she was discharged from the program for lack of regular attendance.*fn2

After placing the child in foster care, DYFS contacted relatives who might have been able to serve as caretakers. An aunt was ruled out because of outstanding criminal warrants. The paternal grandmother was ruled out after she missed meetings and then stopped communicating with DYFS workers altogether.

The child has been with the same foster family since a week after his birth. They have expressed an interest in adopting him. In fact, on December 19, 2008, they testified under oath that they wished to adopt the child.

At the guardianship hearing, the Division presented testimony from Dr. Alan Lee, a psychologist. Dr. Lee performed two bonding evaluations between the child and K.R., the first on May 28, 2008 and the second on November 25, 2008. On May 28, he first evaluated the child's bonding with each of the two foster parents, and evaluated the bond with K.R. during a third session that day. On November 25, he had scheduled K.R. to have the first evaluation session, but she arrived late and Dr. Lee used the time to evaluate the child's bonding with one of the foster parents. Thus, K.R.'s was the second session that day.

On both May 28 and November 25, Dr. Lee observed that the child had not bonded with K.R. By contrast, on both occasions, Dr. Lee observed that the child had a strong bond with both foster parents. Dr. Lee testified that as of November 25, when the child had lived with the foster parents for almost two years, the child would be at significant risk of lasting psychological harm if he was removed from them. On the other hand, he testified that the child would suffer no lasting emotional harm if K.R.'s parental rights were terminated.

Dr. Lee also performed a psychological assessment of K.R., during which she told him of her long history of drug and alcohol problems, as well as depression, schizoaffective bipolar disorder, and hallucinations. Based on his own assessment of K.R., as well as those of other experts who had evaluated her, Dr. Lee concluded that she was not presently capable of independently parenting any child, including R.C.C., Jr.

The Division also presented testimony from a psychiatrist, Dr. Alexander Iofin. He evaluated K.R. on two occasions and diagnosed her as having a psychotic disorder, probably "schizoaffective disorder bipolar type," as well as "affective disorder not otherwise specified." He also evaluated her as having "mild mental retardation and . . . [a] significant amount of maladaptive personality traits" including "narcissistic personality, paranoid and schizoid personality features." He was also concerned with her persistent lack of participation in drug treatment. He testified that the drug PCP can cause the user to become "extremely violent and extremely unpredictable." According to Dr. Iofin, due to her psychiatric problems, as well as her drug problems, K.R. is unable to act as a parent "for any minor child now or in [the] foreseeable future."

In her trial testimony, K.R. contended that she tested positive for PCP when R.C.C., Jr. was born, because she had smoked a cigarette she borrowed from someone, not realizing it was laced with PCP. She also testified that, other than that incident, she had not used drugs since 2003 or 2004. She stopped going to the Medallion program because she did not "feel like I needed to be at that program." She testified that she was living in a one-bedroom apartment. Although she was unemployed, she spent her days assisting her disabled grandmother and helping to care for two developmentally disabled relatives who lived with the grandmother. While at one point she denied having mental problems, she later admitted to having "manic depression." However, since her discharge from AAMH, she has not been involved in any mental health treatment programs. She denied having a positive drug screen in 2008, but testified that she "sold drugs."

In a sixty-five page oral opinion, Judge Blackburn credited the testimony of Drs. Lee and Iofin, as well as the DYFS case workers who testified. She did not credit K.R.'s testimony that she no longer used drugs. After reviewing the applicable legal standards, the judge concluded that DYFS had proven by clear and convincing evidence that termination of parental rights was in the child's best interests.

II.

"Parents have a constitutionally-protected, fundamental liberty interest in raising their biological children, even if those children have been placed in foster care." In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982)). This right co-exists with the State's parens patriae responsibility to protect the welfare of children. Id. at 10. The State may terminate parental rights when it is demonstrated that the "'child's parent or custodian is unfit . . . or the child has been neglected or harmed.'" N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 434 (App. Div. 2009) (quoting In re Guardianship of J.C., supra, 129 N.J. at 10 (citations omitted)).

In an action to terminate parental rights, DYFS must prove by clear and convincing evidence the four prongs of the best interest test developed in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), and codified in N.J.S.A. 30:4C-15.1a:

(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.

These factors are "'not discrete, but rather relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interest'" A.R., supra, 405 N.J. Super. at 434 (citations omitted).

A trial court's decision to terminate parental rights is entitled to great deference. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Accordingly, our review of the court's decision is circumscribed. Ibid. The trial court's finding of facts and conclusions of law are binding if they are supported by adequate credible evidence. Id. at 279. "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility'". Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Because the trial court observes and hears the witnesses directly, it "has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (citing Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). However, a trial court's finding is not entitled to any special deference if the trial judge has a misconception of the applicable law or misapplies the law to the facts. State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966).

III.

In challenging the trial court's decision on this appeal, K.R. presents the following points for our consideration:

THE TRIAL COURT'S DECISION TERMINATING THE PARENTAL RIGHTS OF K.R. TO R.C.C., JR. WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND SHOULD BE REVERSED.

POINT I: THERE WAS NO CLEAR AND CONVINCING EVIDENCE THAT R.C.C., JR.'S HEALTH, SAFETY, OR DEVELOPMENT HAVE BEEN OR WILL BE ENDANGERED BY HIS PARENTAL RELATIONSHIP WITH K.R.

POINT II: THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT K.R. IS UNABLE OR UNWILLING TO ELIMINATE THE HARM FACING R.C.C., JR., OR IS UNABLE AND UNWILLING TO PROVIDE A SAFE AND STABLE HOME FOR HIM AND THE DELAY IN PERMANENT PLACEMENT WILL ADD TO THE HARM.

POINT III: THE [DIVISION] FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT HAD MADE REASONABLE EFFORTS TOWARD REUNIFICATION AND THE TRIAL COURT FAILED TO CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.

POINT IV: TERMINATION OF K.R.'S PARENTAL RIGHTS WOULD DO MORE HARM THAN GOOD.

Based on our review of the record, in light of the applicable law, we conclude that these arguments are all without merit. Except as addressed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

K.R. argues that the Division's determinations, and the judge's decision, are not consistent with the evidence. K.R. contends that she never missed a visitation with the child and functioned well as a parent at these visits. She contends that her drug tests were negative, DYFS delayed in providing services to her, and the expert witnesses were mistaken in their evaluations. She therefore contends that the agency did not prove its case. We cannot agree.

While K.R. may have had positive interactions with the child at her visits, the record overwhelmingly supports the conclusion that she is presently incapable of acting as the child's parent and will not be capable of doing so in the foreseeable future. The record does not support her remaining contentions. Despite the Division's efforts, K.R. has not completed any of the drug programs provided to her and has repeatedly either failed drug tests or failed to show up for them. Moreover, she is not currently receiving treatment for her serious mental illness.

Finally, the child has a right to permanency. He has lived his entire life with his foster parents, with whom he has bonded. Separating child from the foster parents would inflict serious and enduring harm on the him. We affirm substantially for the reasons stated in Judge Blackburn's comprehensive opinion.

Affirmed.


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