On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-191-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, J. N. Harris and Newman.
Defendant A.C.S. appeals a trial court order terminating her parental rights to her minor children, M.J.T.S.W. (M.S.W.), C.T.R., and Z.A.B, and awarding guardianship to the New Jersey Division of Youth and Family Services (the Division).
Defendant has a history of alcohol abuse and one prior assault for which she served jail time. She also had been involved in a domestic dispute during which she was stabbed. When her daughters were approximately four years old, two years old, and six months old respectively, defendant was incarcerated for robbery. Initially, defendant was sentenced to a twelve-year prison term. After defendant's incarceration, the children were eventually placed by the Division in the care of their maternal great aunt, L.S., with concurrent planning for permanent placement with D.S., their maternal grandmother, who was then living in Ohio. The interstate evaluation process was interrupted twice because D.S. changed her address on two separate occasions without advising the Division. In the interim, L.S. decided to adopt defendant's children.
The Division sought termination of defendant's parental rights. Prior to trial, defendant's prison term was reduced, and she was scheduled to be released within four and one-half years from the time she was first incarcerated, which was almost six months after the termination trial.
Defendant argues that the Division failed to prove by clear and convincing evidence the second, third, and fourth prongs of the termination statute. We disagree and affirm.
We need not expand upon the facts surrounding this matter because Judge John J. Callahan adequately summarized this case in his sixty-page oral decision that was read from the bench on May 12, 2009.
Analyzing the evidence in light of the four prong best interests of the child standard, Judge Callahan terminated the parental rights of defendant and the named putative fathers.
The court found that the Division satisfied the first prong of the best interests test because defendant had not followed through on the Division's offer of services of a parental home aide, a substance abuse assessment, and psychological evaluations after the birth of M.S.W. and then became incarcerated in July 2005. By virtue of incarceration, defendant was unable to provide a safe, stable home for the children and was also unable to attend to their physical and emotional needs.
Judge Callahan found that the Division satisfied the second prong because defendant was unable to eliminate the harm to the children by becoming fit in the foreseeable future because she was still incarcerated. The court, based on the evidence presented, found that defendant admitted to "dispensing drugs," that she connected with men who were physically abusive, that she allowed herself to be drawn into criminal enterprises, and that she had an alcohol history. The court observed that Dr. Frank Dyer, a psychologist, opined that reversion to criminal activity was possible based on her past history.
With regard to prong three, the trial judge found that it was not possible for the Division to offer direct services to defendant because of her lengthy incarceration. He found that she had not taken advantage of the substance abuse/psychological evaluations and parent aide that were offered to her before her incarceration. Although not required to facilitate visitation in jail, the Division had made reasonable efforts to provide defendant with visitation while she was incarcerated at Trenton State, due to overcrowding, and Edna Mahan. The court also noted that alternatives to termination were explored by the Division and specific relatives for caretaking were considered and ruled out, except for the children's maternal great aunt, L.S. The judge also commented on the failure of D.S., the maternal grandmother, to complete the out-of-state assessment and how she did not contact the Division for almost two years. While kinship legal guardianship was considered, it was properly rejected when adoption was available and would provide the necessary permanency to these young children.
The court found under prong four that the children had been with L.S. for more than three years and had no real relationship with their mother. The court appreciated that Dr. Gerard A. Figurelli, a psychologist, had not been able to do a bonding evaluation between the children and defendant. The judge recognized that they had a "pleasant connection" and some familiarity with the maternal grandmother, but ceased to pay attention to her after twenty-five minutes. He found that the children viewed L.S. as the stable and reliable figure in their lives to whom they could turn to for support. M.S.W. would suffer a traumatic loss if separated from L.S., who was her "psychological parent." Z.A.B. looked for L.S. for nurturance, security, and protection, and Z.A.B. expressed a preference to stay with her. The judge found that C.T.R. had no positive connection with defendant and did not recall ever living with her. She also would suffer a traumatic loss if removed from L.S.
Judge Callahan found that defendant is cognitively limited, has problems with alcohol and drugs, lacks judgment, is vulnerable to clinical depression, and projects a high risk for substance abuse. According to the court, defendant had not turned her life around, and her children should not have to wait on her to do so if she ever does.
On appeal, defendant raises the following issues for our consideration:
DYFS FAILED TO PROVE ALL FOUR PRONGS OF THE BEST INTEREST TEST BY CLEAR AND CONVINCING EVIDENCE
A. The Division has not proven the second prong of the best interest test because A.C.S. is able to provide a safe, stable home for the children with the assistance of her mother.
B. The Division has not made reasonable efforts to offer services to correct the circumstances that led to placement outside the home, nor has the court considered alternatives to termination of parental rights.
C. The Division did not carry its burden of proof that termination would not do more harm than good.
Before addressing the arguments raised, it is well to keep the following principles in mind. Parents have a constitutionally protected, fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982). They have the "right to raise a child and maintain a relationship with that child, without undue interference by the state." 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)). This right is subject to the State's "basic responsibility, as parens patriae, to protect children from serious physical and psychological harm, even from their parents." Ibid. (citing K.H.O., supra, 161 N.J. at 347). This State may terminate parental rights, but this court bears in mind that "[f]ew forms of state action are both so severe and so irreversible." Santosky, supra, 455 U.S. at 759, 102 S.Ct. at 1398, 71 L.Ed. 2d at 610.
To terminate parental rights, the Division, on behalf of the State, bears the heavy burden of demonstrating that it is in the best interests of the child. E.P., supra, 196 N.J. at 102 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-12 (1986)). When a biological parent opposes the termination of his or her parental rights, the court's focus is not only on "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).
The State's parens patriae responsibility is balanced against the fundamental parental rights by application of the best interests of the child standard. K.H.O., supra, 161 N.J. at 347. Applying this standard, N.J.S.A. ...