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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 28, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
R.H., DEFENDANT-APPELLANT, AND J.J., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF J.J.H., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-55-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 13, 2010

Before Judges Fuentes, Gilroy and Simonelli.

R.H., the biological mother of J.J.H., a boy born September 2005, appeals from the June 18, 2009 order that terminated her parental rights to her son. We affirm.

The New Jersey Division of Youth and Family Services (DYFS or Division) first became involved with R.H. in 1995 after her first child tested positive for cocaine and methadone at birth.*fn1

On July 24, 2006, DYFS executed an emergency removal of J.J.H. from R.H.'s custody after DYFS determined that R.H. had left the child home unattended, and R.H. had recently tested positive for drugs. On July 26, 2006, the court entered an order granting DYFS custody and care of the child.

Initially, the Division's plan was for reunification of R.H. with her son. However, because R.H. continued to use drugs, was arrested and incarcerated, the court entered an order on June 25, 2008, approving the Division's permanency plan for termination of parental rights followed by adoption. On August 15, 2008, DYFS filed a guardianship complaint.

The case was tried to the court on June 8, and June 18, 2009. Testifying on behalf of DYFS were Tracy Calderon, a caseworker in DYFS's permanency unit; Marcia McCalla, a family service specialist in the adoption unit; and Dr. Cameron Wells, a psychologist. Although defendant testified on her behalf, she did not call any witnesses. At the conclusion of trial, the court rendered an oral decision terminating R.H.'s parental rights.

On appeal, R.H. argues:

POINT I.

THE COURT ERRED IN TERMINATING R.H.'S PARENTAL RIIGHTS TO [J.J.H.] AS THE DIVISION FAILED TO PROVE EACH OF THE FOUR PRONGS OF THE BEST INTEREST[S] TEST.

A. THE DIVISION HAS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT [J.J.H.'S] SAFETY, HEALTH OR DEVELOPMENT HAS BEEN HARMED BY HIS RELATIONSHIP WITH R.H.

B. THE DIVISION HAS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT R.H. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HER CHILD.

C. THE DIVISION HAS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT HAS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP R.H. CORRECT THE CIRCUMSTANCES WHICH LED TO [J.J.H.'s] REMOVAL.

D. THE DIVISION HAS FAILED TO PROVE THAT THE TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

Contrary to appellant, the Law Guardian supports the decision below.

Termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Such actions require proof by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. L.C., 346 N.J. Super. 435, 439 (App. Div. 2002). Termination actions brought under N.J.S.A. 30:4C-15.1a are decided under a four-part "best interests of the child" standard, first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-611 (1986) and now codified in N.J.S.A. 30:4C-15.1a. Under that standard, parental rights may be terminated only when:

(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 [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.

[N.J.S.A. 30:4C-15.1a.]

The four prongs of the best interests test "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005). The considerations are fact sensitive. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007).

Our review of the trial judge's fact-finding is limited. Id. at 278; Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. Such deference "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Moreover, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth and Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (quoting Cesare, supra, 154 N.J. at 413).

However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We have considered appellant's arguments in light of the record and applicable law. None of the arguments are of sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(E). The judgment of the trial court terminating appellant's parental rights is supported by sufficient, credible evidence in the record. R. 2:11-3(e)(1)(A). We affirm substantially for the reasons expressed by the trial court in its oral opinion of June 18, 2009.*fn2

Affirmed.


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