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


March 29, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-94-07.

Per curiam.



Submitted: February 25, 2010

Before Judges Axelrad, Fisher and Sapp-Peterson.

S.W., the mother, and S.B., the father, appeal from the Family Part order of May 5, 2009, terminating their parental rights to their then three and one-half-year-old daughter, S.D.B., and awarding guardianship of the child to the Division of Youth and Family Services (DYFS) following a contested trial.*fn1

On appeal, both parents contend DYFS failed to prove by clear and convincing evidence the requisite statutory prongs to establish that the best interests of their daughter required severance of their parental ties. Father also argues: (1) the court committed reversible error in refusing to adjourn the trial to allow him the opportunity to confer with new counsel, and (2) he did not receive the benefit of effective assistance of counsel during the guardianship proceedings.

We note that the Law Guardian supports termination of both parents' rights to S.D.B. After considering the record and briefs in light of the applicable law, we are satisfied the trial judge's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part, and remanded, 179 N.J. 264 (2004). We also reject father's other challenges as without merit.


We need not recite in detail the many facts considered by the trial court in its determination. Rather, we briefly summarize the cogent facts considered in concluding the judge's findings were well-supported by the evidence.

S.D.B. was born on December 31, 2005 to twenty-four-year-old S.W. Three days later DYFS received a referral from the hospital reporting that mother and child had tested positive for marijuana and S.W. had not obtained prenatal care. The eighteen-year-old father was incarcerated at the time.*fn2

On January 9, 2006, DYFS executed a Dodd removal and placed S.D.B. in foster care. On February 8, 2006, S.W. stipulated that she committed acts of abuse and neglect, specifically, smoking marijuana while pregnant. When S.W. submitted to a psychological evaluation to determine her parenting ability, mental status and treatment needs with Dr. Mark Singer, Ph.D., on June 20, 2006, she admitted marijuana use since the age of sixteen, and reported last using marijuana five months before.

Dr. Singer found that S.W. lacked the emotional resources needed to care for her child at that time and "her characterological features significantly limit her ability to respond effectively to the needs of others, including children." He found that S.W. was further inhibited by her unaddressed substance abuse issues. Dr. Singer recommended that S.W. complete the following services to assist her in becoming a more viable placement option for her daughter: (1) continue to participate in supervised visitation; (2) obtain appropriate employment; (3) maintain appropriate housing; (4) successfully complete drug treatment, including aftercare and drug testing; (5) participate in parenting skills training; (6) participate in individual counseling; and (7) be evaluated by a psychiatrist.

S.W., however, was erratic and semi-compliant with the myriad of substance abuse, individual counseling and parenting skills classes made available to her by DYFS through the Family and Children's Services (FACS), Trinitas Hospital's Women's Addiction Services (WAS), and NA/AA. For example, the WAS progress reports from July and August 2006 reflect that S.W. tested positive for marijuana on July l2, l7, and 27, 2006, and that she stopped attending the program on August l, after testing positive on that date. She then resumed treatment on August l3, but only attended one full week that month and was semi-compliant with services. WAS compliance reports between October 2006 and May 2007, when S.W. was discharged with semi-compliance, reflect that while she did not have any positive urine screens, S.W. remained semi-compliant with treatment, had problems with attendance on a regular basis, missed treatment every Friday even though she was only excused from treatment every other Friday for visits with S.D.B., and was not attending NA meetings as required. She did, however, attend and complete the early intervention program at Oasis Clinical Services from October l5 through November l5, 2007.

However, DYFS received a referral in June 2008 that S.W. tested positive for marijuana while seven-month-old A.B. was in her custody, and when S.W.'s urine came back positive, DYFS effectuated a Dodd removal of A.B. S.W. finally resumed treatment in November 2008, but according to WAS progress reports, S.W. tested positive for marijuana up until December 29, 2008, and through February 2009, she continued to have a problem with regular attendance and failed to attend the requisite NA meetings.

During his evaluation with Dr. Singer on August l5, 2006, S.B. admitted he had a prior history of selling drugs, he had used marijuana since the age of eleven and reported he last used in July 2005. Dr. Singer found S.B. similarly lacked the emotional resources to care for his child, and recommended he participate in supervised visitation, attend a parenting skills program, participate in individual psychotheraphy, maintain appropriate housing and employment, and participate in drug testing.

S.B. was referred to similar programs as was S.W. but his participation and compliance was far worse. He was discharged from WAS in December 2006 for failing to attend the scheduled treatment and after being readmitted into the program in January 2007, he only attended a few times and tested positive for marijuana twice. S.B. then signed an agreement that he would comply with all of the requirements of the program on March 26, 2007; however, he never returned. He also testified positive for marijuana when he appeared in court on February 7, 2007, and on March 5, 2007, he refused a drug screen, but admitted in court that it would be positive for marijuana. S.B. was referred again for further substance abuse evaluations in December 2007 and July 2008, but he missed appointments and did not follow through with treatment. On August 4, 2008, S.B. tested positive for marijuana in court; in November 2008 and January 2009 he left the courthouse without giving the requisite urine sample; and on March 24, 2009 (the second day of the guardianship trial), he tested positive for methamphetamines and marijuana.

In addition, neither S.W. nor S.B. followed up with the referrals for individual psychotherapy or parenting skills classes. S.W. also did not cooperate with the Bayada homemaker services and they discontinued services in May 2008 after S.W. moved to a motel and stopped complying.

S.D.B. remained in foster placement from her birth and never resided with either parent. S.W. and S.B. were "pretty frequent" in their visitation with S.D.B. at the DYFS office.*fn3

Nevertheless, according to DYFS' testifying psychologist who performed bonding evaluations on January 21, 2009, S.D.B. displayed "almost no attachment or a very impaired attachment" with her mother and did "not show any real emotional reaction" to her father. The expert observed no indication of any bond with either parent and recommended termination as in the child's best interests.

Various friends and relatives were evaluated and ruled out by DYFS as placement resources for S.D.B., including the paternal great grandmother who stated she would not be able to care for the child, and the maternal grandmother. The latter was initially ruled out because of a heart condition but thereafter advised she no longer wished to be considered even though her health had improved.

When it became apparent to the court during its review on March 5, 2007 that neither parent fully complied with services nor remediated the conditions which led to S.D.B.'s removal (even though DYFS was instructed to continue to assess the maternal grandmother as a placement resource), the court approved DYFS' plan of termination of parental rights followed by foster home adoption. Accordingly, on April l6, 2007, DYFS filed a guardianship complaint to terminate the parental rights of both parents to S.D.B. Counsel were appointed for each parent on May 8, 2007, and represented them throughout the proceedings.

Out of the fourteen case management or pre-trial conferences, S.B. attended only four, in August 2007, August 2008, November 2008 and January 2009, and S.W. attended eleven. Trial was scheduled on various dates, defaults were entered and vacated, and trial finally commenced on March 23, 2009. S.B. testified as to all of the elements required for the general surrender of his parental rights until the court asked him whether he was happy with his attorney's services. He then replied he was not and requested an adjournment to allow time to consult with a new attorney. The court denied his request, then asked whether S.B. wanted to effect a general surrender or proceed to trial. S.B. chose to proceed with trial.

The trial took place over four days, concluding on May 5, 2009. DYFS presented the testimony of Valerie Talmadge and Pamela Irvin, its caseworkers; Caramacho Andrews, its adoption supervisor; and Dr. Robert Kanen, a psychologist who evaluated S.W. and S.B. and performed bonding evaluations with S.D.B. Neither parent testified nor presented any expert testimony. The Law Guardian supported the termination of parental rights of both parties.

Having observed the demeanor and considered the testimony of the lay and expert witnesses, examined the exhibits entered into evidence, and heard arguments of counsel, Judge Grispin concluded that S.D.B.'s best interests required severance of S.W.'s and S.B.'s parental ties. In his comprehensive oral decision on the record on May 5, 2009, the judge made findings of fact and credibility assessments, noted the applicable law and found DYFS had established by clear and convincing evidence the four-prong test for termination of parental rights as set forth in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-10 (1986), and as codified in N.J.S.A. 30:4C-15.l. The determination was memorialized in a judgment of guardianship, and this appeal ensued.


We begin by noting some basic principles. The scope of our review of a trial court's decision to terminate parental rights is limited. In Re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We also have a limited scope of review of the Family Part's factual findings. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). In reviewing the factual findings and conclusions of a trial court, we are obliged to accord deference to the trial judge's credibility determinations and the judge's "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. A.R.G., supra, 361 N.J. Super. at 78 (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). We rely upon the trial court's acceptance of the credibility of the expert testimony and the court's fact-findings based thereon, as it is in a better position to evaluate the witness' credibility, qualifications, and the weight to be accorded to the expert's testimony. Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 22 (1992).

We are not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). Additionally, because of the family court's special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding and the conclusions which flow logically from those findings of fact. Cesare, supra, 154 N.J. at 412-13; M.M., supra, 189 N.J. at 279. Reversal is required only in those circumstances in which the trial court's findings were "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (citations omitted). Applying this standard, we discern ample evidence in the record supporting the judge's conclusion that the best interests of the child require termination of S.W.'s and S.B.'s parental rights.

The applicable principles are well settled. "Parents have a constitutionally protected, fundamental liberty interest in raising their biological children." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 382 (App. Div. l998) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed. 2d 599, 606 (1982)). "The Federal and State Constitutions protect the inviolability of the family unit." W.P. & M.P., supra, 308 N.J. Super. at 382 (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed. 2d 551, 558-59 (1972)). However, government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 L.Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S.Ct. 1526, 1540, 32 L.Ed. 2d 15, 33 (1972)). The State, as parens patriae, may sever the parent-child relationship to protect the child from serious physical and emotional injury. W.P. & M.P., supra, 308 N.J. Super. at 382.

When the child's biological parent resists termination of parental rights, it is the court's function to decide whether the parent can raise the child without causing harm. J.C., supra, 129 N.J. at 10. The cornerstone of our inquiry is not whether the parent is fit, but whether the parent can become fit to assume the parental role within time to meet the child's needs. Ibid. (citing A.W., supra, 103 N.J. at 607). "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." J.C., supra, 129 N.J. at 10. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that the risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of the parental ties." W.P. & M.P., supra, 308 N.J. Super. at 383 (alteration in original) (quoting J.C., supra, 129 N.J. at 10).

The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383. The State Constitution and N.J.S.A. 30:4C-15 and 15.1a require satisfaction of the "best interests of the child" test by clear and convincing evidence before termination of parental rights can occur. See A.W., supra, 103 N.J. at 612; In Re Guardianship of Jordan, 336 N.J. Super. 270, 274 (App. Div. 2001). Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1a requires DFYS to prove:

(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 [formerly referred to as "foster"] parents would cause serious and enduring emotional or psychological harm to the child;

(3) The [D]ivision 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 standards are neither discrete nor separate. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. Ibid. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).


Our examination of the record discloses that all four prongs of the test as they pertain to both S.W. and S.B. have been met by clear and convincing evidence. The first prong involves inquiry into whether there has been "endanger[ing] of the child's health and development resulting from the parental relationship[,]" and whether there will be future harm to the child's safety, health or development if the parental relationship is not terminated. K.H.O., supra, 161 N.J. at 348. The focus of the inquiry is not necessarily on a "single or isolated harm or past harm," but rather on "the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid.

The facts, as found by the trial judge from credible evidence, reveal that both parents have a longstanding history of marijuana abuse. S.D.B. was born with marijuana in her system, which constitutes an obvious harm to her. S.W.'s use of marijuana during her pregnancy with S.D.B., and her continued use during her second pregnancy, even after S.D.B. was taken from her for this conduct, clearly indicates an unwillingness or inability to place her children's health, safety, and general welfare above her immediate enjoyment. S.B. also created a harm to S.D.B. by being unavailable at the time of her birth due to his incarceration and, when released approximately three months later, failing to assume the responsibility of offering himself as a viable alternative to foster care placement. As the trial judge found, S.B. was not committed to caring for his daughter and his unabated drug use severely compromised his ability to parent. Moreover, S.B. provided no evidence to establish that he was willing to, or did, contribute financially or emotionally to the upbringing of either of his children.

The second prong contemplates the determination of parental unfitness. DYFS must prove that the harm is likely to continue as a direct result of the parent's unwillingness or inability to eliminate the harm that has endangered the child's health and development or the parent has failed to provide a "safe and stable home for the child" and a "delay in securing permanency" will further harm the child. K.H.O., supra, 161 N.J. at 348-49. As Dr. Kanen testified, both parents exhibited chronic irresponsibility, immaturity and self-centered behavior, which, when coupled with their failure to appreciate the significance of their substance abuse and the deleterious effect on their ability to parent, made it unlikely that S.W. or S.B. would be able to eliminate the harm to S.D.B. and provide a safe and stable home for her in the future.

S.W. was non-compliant or only semi-compliant with a panoply of substance abuse, parenting, homemaker and counseling services made available to her while S.B. was consistently non-compliant with services. Even though S.W. may have made progress in her life, she continued to relapse at least through November 2008, knowing she was facing the termination of her parental rights. As testified to by Dr. Kanen, she had not been drug-free for a sufficient time and remained at high risk of relapse when faced with minor stress. In fact, in her brief, S.W. acknowledges that she may not have been ready to resume parenting at the time of trial.

S.B. clearly took no affirmative action to cease his marijuana use or modify his behavior because he showed up for the second day of trial testing positive for methamphetamines and marijuana. Moreover, neither S.W. nor S.B. had stable housing or employment so as to provide stability to S.D.B. Nor did either parent present a viable plan for caring for their child.

The third prong requires DYFS to make "reasonable efforts" to assist the parents in correcting or eliminating the circumstances that caused the harm and consider alternatives to termination. N.J.S.A. 30:4C-15.1a(3). It is undisputed that DYFS provided both parents with a multitude of services and referrals to a variety of programs from 2006, intervening each time one of the parents relapsed and needed a new referral or evaluation. The record reflects that DYFS' initial plan was family reunification and it was only after it became apparent to the agency that the parents were only giving lip service to the programs offered and were not willing or able to remedy the conditions which led to S.D.B.'s removal that it sought to pursue guardianship.

The documentary evidence includes DYFS' attempts to contact and explore identified relatives and family friends as potential placements for S.D.B. and re-explore the paternal great- grandmother and maternal grandmother without success. Although S.B. claims in his brief that he was not investigated to determine his suitability for placement, he never offered himself as an independent caretaker for his daughter. Rather, during the course of this litigation, he merely stated that his grandmother or his girlfriend should be the primary caretaker for S.D.B.

Lastly, the statute's fourth prong mandates a determination as to "whether a child's interests will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). There is ample evidence that termination of S.W.'s and S.B.'s parental rights would not do more harm than good. Dr. Kanen's unrebutted opinion was that S.D.B. was not bonded to either parent and would suffer no serious and enduring harm if a relationship with S.W. or S.B. were terminated. The psychologist and the Law Guardian were aware of the unfortunate fact that S.D.B.'s initial placement did not work out and she was moved in December 2008, there was no bond with her second foster parents, and no testimony was presented as to her bond with or likelihood of adoption by the third foster placement.*fn4

Nevertheless, they were clearly in favor of termination as it served S.D.B's best interests under the circumstances.

We are convinced, as was the Family Part judge, that although S.W. and S.B. love their daughter, they are unable to provide a safe and permanent home that she so desperately needs. As we concluded in In Re Guardianship of A.R.G., 318 N.J. Super. 323, 330 (App. Div.), certif. denied, 162 N.J. 127 (1999), where there is substantial credible evidence in the record to support termination of parental rights, there is no reason to delay permanent resolution. Children cannot afford to wait until such time as their parents might be able to provide a safe and secure environment for them. S.D.B. has been in foster care for nearly four years and her parents have yet to propose a viable plan to care for her. The trial court properly determined that termination of parental rights will not do more harm than good as it will free S.D.B. up for a potential adoption by a family that can provide permanency and stability for her.

We turn now to S.B.'s other challenges. We discern no abuse of discretion by Judge Grispin in declining to adjourn the guardianship trial for S.B. to explore the appointment of new counsel. The case had been in guardianship litigation for almost two years and trial had been delayed several times, due primarily to S.B.'s own failure to meaningfully participate in the proceedings. It appears that S.B. was simply unhappy that the case had actually made it to trial rather than having a meaningful criticism of his attorney's services.

S.B. answered all questions without hesitation for surrender of his parental rights. When asked by the court if he was satisfied with his attorney's services just prior to the court accepting the general surrender, the likely reason S.B. indicated that he was not was because he sought, as a final attempt, to further delay the proceedings. We are satisfied the court conducted the appropriate colloquy and did not put any pressure on S.B. to complete the general surrender of his parental rights. The court then found that S.B.'s attorney would be able to adequately represent him at trial despite S.B.'s dissatisfaction, concluding that "over the last year that I've had the matter, six, eight months, [S.B.'s attorney] represent[ed] [S.B.] capably [and] professionally."

We deem defendant's assertion of ineffective assistance of trial counsel to have insufficient merit to warrant extended discussion as he has failed to show that his attorney's representation of him was in any way deficient or that such deficient representation affected the outcome of the case. R. 2:11-3(e)(1)(E); N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301 (2007).


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