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Division of Youth and Family Services v. M.M.K.

April 19, 2010

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
M.M.K., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF A.R.K., A MINOR.
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
D.L., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF A.R.K., A MINOR.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket Nos. FG-16-104-08 and FN-16-117-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 3, 2010

Before Judges Stern, Graves and Sabatino.

In these consolidated appeals, defendant M.M.K. is the biological father and defendant D.L. is the biological mother of A.R.K. (fictitiously, Ahmad), who is almost six years old. Defendants appeal from a judgment entered on October 30, 2008, terminating their parental rights and granting guardianship of Ahmad to the Division of Youth and Family Services (DYFS or the Division). Based on our examination of the record and the applicable law, we conclude that the trial court's decision to terminate parental rights is supported by clear and convincing evidence. Consequently, we affirm.

At the outset, we restate the well-settled principle that a parent's right "to raise a child and maintain a relationship with that child, without undue interference by the state, is protected by the United States and New Jersey Constitutions." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S.Ct. 1208, 1212, 31 L.Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). Notwithstanding the fundamental nature of the parent-child relationship, parental rights are not absolute. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." K.H.O., supra, 161 N.J. at 347. Therefore, in appropriate cases, "if the child is at risk of serious physical or emotional harm," the State may seek to terminate parental rights. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 L.Ed. 2d 101, 119 (1979)).

When a child's biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise the child without causing the child further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. "The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents," and the "burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." Ibid.

While acknowledging the fundamental nature of parental rights, the Legislature has also recognized that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. That standard, initially formulated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified in N.J.S.A. 30:4C-15.1(a), requires the State to establish the following criteria by clear and convincing evidence before parental rights may be severed:

(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-15.1(a).]

These four requirements "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. The considerations involved are extremely fact sensitive and require particularized evidence that addresses the specific circumstances present in each case. Ibid.

In this case, the guardianship trial took place on fifteen days between June 23 and October 30, 2008. At the time of trial, M.M.K. and D.L. were still married but were not living together. In his opening statement, M.M.K.'s attorney advised the court that M.M.K. wanted Ahmad returned to D.L., and that M.M.K. intended to exercise his right to visitation with Ahmad. When he testified, M.M.K. explained that Ahmad "needs a mother and he needs me, but he needs a mother more." However, the law guardian for Ahmad supported the Division's position and argued it was in Ahmad's best interest to terminate the parental rights of both parents so that he could be adopted by his current foster family.

In a comprehensive oral decision on October 30, 2008, the trial court explained its reasons for terminating the parental rights of both the mother and the father. In its decision, the court noted there was no expert testimony to rebut the findings and conclusions of the two psychologists who testified for the Division and, to a large extent, the court relied on their testimony:

It is important to recognize there has been no expert testimony offered . . . by either the mother or father to rebut the opinions and/or conclusions reached by . . . Dr. [Nadelman] or Dr. Nelson.

It is clear in this case that we are not dealing with allegations of any physical abuse by either parent to the child [Ahmad]. [On] the other hand there is clear testimony of emotional abuse and/or harm not only to [Ahmad] but to the other children as well.

Furthermore, it's interesting to note that at no point during the course of this case did anyone indicate or recommend that [Ahmad] should return to his father. The emotional harm [in] this matter came from both [D.L.] and [M.M.K.] as evidence by the expert testimony provided. Additionally the fact that [D.L.] continues to refuse to recognize the harm that she has placed upon the children only demonstrates her inability to eliminate it.

On appeal, M.M.K. and D.L. primarily argue that the Division failed to establish each of the four statutory factors set forth in N.J.S.A. 30:4C-15.1(a). We do not agree.

D.L. was born in Kansas City, Missouri in 1969. At some point, she converted to the Muslim religion. In 1991, D.L. married her first husband, S.E., in a religious ceremony. On April 4, 1992, they were married in a civil ceremony in Egypt. D.L. and S.E. had three sons. Their oldest son, I.E., was born in 1993; A.E. was born in 1995; and K.E. was born in 1996.

The Division became involved with the family in 1999 as a result of referrals regarding domestic violence, neglect, and family problems. In March 2001, D.L. and S.E. were divorced. A few months later, in July 2001, the court temporarily transferred legal custody of D.L.'s three sons to DYFS pending an investigation. Following the investigation, legal custody was returned to D.L.

M.M.K. was born in Egypt in 1969. In September 2002, he visited his brother in the United States and met D.L. at a mosque. On June 27, 2003, they were married in an Islamic ceremony. They were subsequently married in a civil ceremony.

On August 23, 2003, M.M.K. was arrested for hitting D.L. and two of her boys with a stick, causing bruises. According to the police report, M.M.K. was angry because D.L. allowed the boys to call their father in Egypt for his birthday. Criminal charges were filed against M.M.K., and he entered guilty pleas to endangering the welfare of both children. During the plea hearing on February 18, 2004, M.M.K. testified as follows:

Q: On August 23rd of last year, were you at home with your wife?

A: Yes.

Q: And were the two boys, whose initials are A.E. and K.E., home also?

A: Yes.

Q: . . . A.E. was eight at the time, and K.E. was seven at the time. Is that right?

A: Yes.

Q: All right. Now you indicated earlier that you were having a dispute with your wife and it began to get somewhat physical, with pushing and shoving. Is that correct?

A: Yes.

Q: . . . And the two boys may have heard something, or hearing yelling or whatever, and came into the room. Is that correct?

A: Yes. . . . .

Q: You had a . . . stick, then, that was about 18 inches long?

A: Yes.

Q: All right. And you said you were waving it at your wife. Is that correct?

A: Yes.

Q: Did you actually hit your wife with it?

A: Yes.

Q: All right. And what part of her body did you hit her on?

A: Her arm.

Q: Her left . . . arm by her shoulder area?

A: Yes.

Q: All right. And what did the boys do, or what did you do to the boys? What . . . happened next?

A: The kids jumped on me, so I hit them so they would keep away from me. That's it.

Q: And you hit both of the boys with the stick?

A: Yes.

Q: And you acknowledge that by hitting these children under these circumstances, you caused that bruising. Is that correct?

A: Yes.

Pursuant to a plea agreement, M.M.K. was admitted into a pretrial intervention (PTI) program on condition that he have no contact with D.L.'s three sons. In addition, the PTI order prohibited M.M.K. from coming within 200 feet of D.L.'s home. The criminal charges against M.M.K. were eventually dismissed after he successfully completed the PTI program.

Notwithstanding the assaults on August 23, 2003, which resulted in the criminal charges, D.L. and M.M.K. were married in a civil ceremony on November 11, 2003. A week later, on November 18, 2003, D.L. filed a complaint against M.M.K. for simple assault and harassment and obtained a domestic violence temporary restraining order (TRO) against him. In support of her request for the TRO, D.L. testified as follows:

Last night he kept sticking his fingers in my neck and told me should I kill you now, should I kill you now? He put his hand here and said, you know I could kill you very easily and he put his fingers in front of my eyes and said . . . you want to see your ex so bad, what if I poke your eyes out and you won't be able to see him again. And then he started threatening me and telling me . . . you want to be with your ex so bad, you want to be with him so bad, you guys are gonna be together ...


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