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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 12, 2010

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

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-0046-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 26, 2010

Before Judges Lisa, Baxter and Alvarez.

In these two appeals, which we have consolidated for purposes of disposition, we decide whether the Family Part correctly terminated S.A.'s parental rights to her daughter C.B., born June 29, 2007, while at the same time refusing to terminate S.A.'s parental rights to her other daughter, K.C., born November 18, 2008. We conclude that the proofs presented by the Division of Youth and Family Services (DYFS or Division) satisfied all four prongs of the applicable statutory standard, N.J.S.A. 30:4C-15.1(a), and therefore affirm the termination of S.A.'s parental rights to C.B. However, because the proofs as to K.C. were virtually identical to those concerning C.B., the judge misapplied the statute when he refused to terminate S.A.'s parental rights to K.C. and chose instead to afford S.A. one more opportunity, through Drug Court, to become drug-free. We thus affirm the judgment in A-5626-08 and reverse the judgment in A-5244-08.

I.

The two children who are the subject of this appeal are S.A.'s fourth and fifth offspring. To provide a more complete picture of S.A.'s history of drug abuse and her incarceration for addiction-related crimes, we begin our review with a discussion of S.A.'s loss of custody of her three older children. We will refer to them by pseudonyms.

S.A.'s oldest child, Karen, was born on December 24, 1999. DYFS became involved with S.A. after receiving a referral alleging that S.A. was abusing drugs. After admitting to heroin use, S.A. entered an inpatient drug treatment program, but never completed it. DYFS closed the case after S.A. executed a permanent surrender of her parental rights in favor of her parents.

On November 2, 2001, S.A. was convicted of eight counts of burglary, theft, use of a stolen credit card and a violation of probation, for which she was sentenced to an aggregate four-year term of imprisonment. On February 7, 2002, the judge modified S.A.'s sentence by releasing S.A. from prison and placing her on probation for a four-year period.

S.A. gave birth to her second child, Missy, on January 2, 2002 while incarcerated on the charges we have just described. Because S.A. was incarcerated, at S.A.'s request Missy was placed with S.A.'s parents. Upon her release from custody in June 2002, S.A. attempted to regain custody of Karen from her parents, but was not successful. Later, S.A.'s parents allowed her to live with them, Missy and Karen. By then, S.A.'s parents had adopted Karen. On May 9, 2003, S.A. was convicted of forgery and sentenced to a two-year term of probation. In her statement of reasons, the sentencing judge noted that the charges in question resulted from S.A.'s "financial need to deal with drug use."

Five months later, on September 30, 2003, S.A. gave birth to her third child, a son, Corey. After several moves during and after her pregnancy, S.A. and Corey's father moved in with friends and S.A. again began using heroin. While arresting Corey's father, police observed recent needle marks on S.A.'s arm, which police believed were the result of heroin use. Because S.A. admitted using heroin, and because the two placement resources she offered each had prior DYFS involvement, DYFS executed an emergency removal of Corey, and both Corey and Missy were placed with family friends. At the request of DYFS, the Family Part ordered S.A. to cooperate with substance abuse evaluation and treatment and to undergo random urine screening. The judge also ordered that all visitation with Missy and Corey be supervised.

On February 9, 2005, S.A. was admitted to a one-month inpatient drug treatment program at Saint Clare's Hospital. At the time of her admission, she admitted to heroin and cocaine addiction. Her attending physician also diagnosed her as suffering from an adjustment disorder and depression. After only two weeks, S.A. signed herself out of the Saint Clare's inpatient program against medical advice, promising to attend an outpatient program instead. The program, High Focus, contacted the Division on April 29, 2005, advising that S.A. had not attended its program for more than a week and would be discharged unless she quickly re-enrolled. A week later, when S.A. had made no effort to resume treatment, High Focus discharged her for failure to attend.

In the months that followed, S.A. remained noncompliant with treatment, and failed to report for court-ordered urine screening on May 16, May 17, May 23 and June 10, 2005. The one urine screen that was performed, on June 1, 2005, was positive for cocaine, opiates and morphine.

Approximately one month later, on July 14, 2005, S.A. was again arrested, this time for criminal trespass, burglary, theft and use of a stolen credit card, for which she was ultimately convicted and sentenced to another five-year probationary term. Two weeks later, S.A. was readmitted to Saint Clare's as a result of heroin and cocaine abuse; however, she again left the hospital against medical advice, this time only four days after admission. As a result of S.A.'s worsening drug problem and her continued pattern of arrests, DYFS placed Corey and Missy with their maternal grandparents on October 24, 2005. The Division's plan for Missy and Corey included termination of S.A.'s parental rights followed by adoption; however, after S.A. made a commitment to remain drug-free and comply with all DYFS recommendations, the Division returned both children to her custody on June 14, 2006.

As a result of S.A.'s guilty plea to probation violations on November 14, 2005, a judge ordered her to enroll in a six to twelve-month inpatient drug treatment program at Epiphany House. However, before completing the program, S.A. relapsed and withdrew from the program.

Because of S.A.'s numerous relapses and her refusal to cooperate with drug treatment, on November 6, 2006, the Family Part entered a dispositional order transferring custody of Corey to his father, where he has remained ever since. Missy was placed in the custody, care and supervision of DYFS. On April 23, 2007, S.A. surrendered her parental rights to Missy in favor of her parents, who subsequently adopted her.

As we have noted, C.B. was born on June 29, 2007. Thus, by the time of C.B.'s birth, S.A. had already lost custody of three children, had been arrested and convicted three times and had failed at five different inpatient and outpatient drug treatment programs by either failing to complete them or by prematurely leaving against medical advice.

As to C.B., the record demonstrates she was born testing positive for opiates. On November 4, 2007, when C.B. was less than four months old, S.A. was again arrested, this time for shoplifting, possession of a controlled dangerous substance and possession of drug paraphernalia. C.B. was with S.A. when S.A. was arrested. When police notified DYFS, the agency immediately placed C.B. with her maternal grandparents. At the time of her arrest, S.A. admitted to shoplifting with the intention of selling the merchandise in Newark to "purchase drugs to get high." She also admitted to using heroin the night before while caring for C.B.

Although S.A. was released on bail on November 10, 2007, she was arrested again ten days later for fraudulent use of credit cards. S.A. also acknowledged to DYFS that she had been observed by police purchasing illegal drugs a month earlier, but had managed to avoid arrest by offering to make a controlled buy from the drug dealer.

After S.A.'s release from jail, the Division again offered her an array of services to facilitate reunification. In particular, DYFS referred S.A. to an intensive outpatient drug treatment program; however, S.A. was discharged on July 16, 2008 because she had not attended the program since May 7. Additionally, although DYFS provided S.A. with supervised visitation, S.A. was terminated from that program after canceling two visits and making no effort to reschedule.

DYFS also arranged for a psychological evaluation of S.A., which was conducted on January 29, 2008 by Heidi Jacobsen, Ph.D., of the Family Enrichment Program at Morristown Memorial Hospital. Jacobsen diagnosed S.A. as suffering from a narcissistic personality disorder that caused her to minimize the impact of her addiction and frequent incarceration on her children. Jacobsen recommended supervised visitation and continued substance abuse treatment.

On June 15, 2008, S.A. was arrested for violating probation and remained confined until July 7, 2008. At the time of her arrest, S.A. was living in a motel with a man named Frank, where police found numerous pieces of drug paraphernalia, including evidence that cocaine, heroin and marijuana were being used. After S.A.'s release from custody on July 7, 2008, she again began living with Frank, even though she claimed to DYFS that she was living elsewhere.

On July 15, 2008, a week after her release from jail, S.A. advised DYFS she was five months pregnant with K.C. On November 13, 2008, five days before K.C. was born, S.A. failed to appear in court and the judge suspended all further visitation with C.B. The judge based the suspension of S.A.'s visitation with C.B. on her failure to cooperate with the services DYFS had provided.

At the time of K.C.'s birth, DYFS immediately removed her from S.A.'s custody and placed her with her maternal grandmother and half-siblings. At her first visit with K.C., two weeks after the child had been removed from her care, S.A. spent the first ten minutes of the supervised visitation speaking with the case manager and paid no attention to her daughter. Similarly, on the second visit, she spent the first fifteen minutes talking to the case manager and the remainder of the visit complaining about her mother.

In January 2009, S.A. was convicted of the charges that resulted from her November 20, 2007 arrest and was sentenced to five years of Drug Court probation on January 26, 2009. During the pendency of the November 2007 charges, S.A. was incarcerated for a total of forty-four days.

In anticipation of trial, Dr. Susan Skolnick performed a psychological evaluation of S.A., at S.A.'s request, to determine whether her rights to C.B. should be terminated. Skolnick also conducted a bonding evaluation of C.B. with S.A. and with the maternal grandparents. Although noting that C.B. "felt safe and comfortable with [S.A.]," Skolnick opined that C.B. was "bonded to [her maternal grandparents] because they have cared for her for the past year." Ultimately, Skolnick concluded that S.A. was able to provide the guidance, nurturance, protection and stability that C.B. needed and recommended that DYFS return C.B. to S.A.

On March 7, 2009, Dr. Elizabeth Smith, who was retained by DYFS, issued a psychological evaluation of S.A. and a bonding evaluation concerning C.B. Smith commented that C.B. had only a tenuous relationship with her mother, as "there were no indications of real attachment." Smith opined that C.B. interacted with her mother "in much the same way she would interact with any barely known adult." In contrast, Smith opined that C.B.'s attachment to her maternal grandparents was "strong, secure and healthy."

The psychological testing Smith administered to S.A. showed S.A. to be a "narcissistic and unstable" individual who "lacks empathy and an understanding of what she has done to her children." Smith also opined that although S.A. had been drug-free for fifteen months, there was no guarantee that S.A. would remain so in light of her longstanding drug problem, her tendency to blame others for her own problems and her lack of insight concerning the impact of her addiction on her children. Smith concluded that reunification was not in the children's best interests and supported DYFS's plan for termination of S.A.'s parental rights.

The guardianship trial began on March 11, 2009. Smith's testimony at trial was consistent with her written report. DYFS also presented the testimony of its case manager Aleen Larson, who described in considerable detail S.A.'s history with DYFS and S.A.'s substance abuse problems. Larson also testified that the maternal grandparents were willing to adopt both C.B. and K.C.

S.A. presented the testimony of Skolnick, whose recommendations were consistent with those in her earlier written report. S.A. testified, admitting that her substance abuse problem, particularly heroin, had begun twelve years earlier when she was nineteen years of age. She insisted that when her children were born, she was "only" using two bags of heroin a day, which was "just enough to get [her] motivated so that [her] kids were taken care of for the day." She maintained that by using "only" two bags, she "wasn't like nodding out or anything like that." She maintained that she had been drug-free for a period of sixteen months, and urged the court not to terminate her parental rights.

At the conclusion of the trial, the judge rendered a lengthy oral opinion in which he concluded that, as to C.B., the proofs presented by DYFS satisfied all four prongs of N.J.S.A. 30:4C-15.1(a) and therefore S.A.'s parental rights to C.B. should be terminated. In particular, the judge concluded that:

(1) prong one was satisfied by S.A.'s guarded prognosis for sobriety, her history of "long-term chronic substance abuse," her "personality aspects . . . that cause her frequently to blame others and other circumstances for chronic relapses," her failure over the past decade to "establish[] . . . a competent, stable, drug-free life," and gaps in her visitation with C.B.;

(2) prong two was satisfied because S.A. "has been unwilling or unable to eliminate the harm [to C.B.] in a timely fashion, unwilling or unable to provide a safe and stable home," and a delay in C.B.'s permanent placement would "substantially add to the harm," as she had bonded to her maternal grandparents; (3) prong three was satisfied because "given the number of children involved and the amount of time [S.A.] ha[d] been engaged . . . with the Division, there [had] been, in effect, a catalog of all available services offered and provided to [S.A.]"; and (4) prong four was satisfied because C.B.'s maternal grandparents were her primary attachment figures and C.B. had no "substantial attachment" to S.A.

In contrast, the judge concluded that S.A.'s parental rights to K.C. should not be terminated. Although the judge agreed that prong one had been satisfied, he concluded that prong two had not been. He observed that although S.A. had been unwilling or unable to provide a safe and stable home because of her drug use, "the harm that might come from any delay in permanent placement is different and more tolerable" than it had been with C.B. because K.C. had been removed from S.A.'s custody shortly after her birth and had not been forced to experience the multiple placements C.B. had endured. As to prong three, the judge concluded that although DYFS had made "reasonable efforts" to help S.A. in the past, those efforts were not "really specific to [K.C.]." As to the fourth prong, the judge concluded that termination of S.A.'s parental rights to K.C. would not do more harm than good because there was no bond between the two.

The judge then evaluated alternatives to termination of S.A.'s parental rights to K.C., and determined that allowing S.A. to remain in the Drug Court program could provide her with an incentive to remain drug-free and achieve a reunification with K.C. Relying on his former experience as a Drug Court judge, the judge concluded that S.A.'s involvement in Drug Court might enable her to remain sober because, according to the judge, Drug Court "has had some success in dealing with persons in her posture [of] chronic long-term drug abusers." The judge stated:

What I'm going to suggest is there should be no more pregnancies until her life is established as a competent, healthy, drug-free, sober, responsible adult. . . . .

And I'm trying, in effect, to break the cycle of pregnancy, removal, new pregnancy, new removal. I understand full well why the child was added to this guardianship complaint as we started the trial, because there is a way of looking at the past history as being chronic and unlikely to be redeemed. And that may turn out to be the case.

But my experience with Drug Court suggests to me that we have an opportunity perhaps to break this cycle, to motivate [S.A.]. I would urge her not to have any more unplanned pregnancies, so that she can devote her energies to this child and to her recovery.

Last, the judge discussed what would occur if S.A. did not succeed in Drug Court. The judge held that DYFS would not be required "to file another FG [guardianship action] and go through another termination proceeding with respect to [K.C.]" because "most of the elements of a guardianship are in place." Thus, as is evident from the record, the judge's refusal to terminate S.A.'s rights to K.C. was ultimately premised upon his belief that, despite S.A.'s long history of drug abuse, relapse and incarceration, she should be afforded one more opportunity to prove she was able to provide a safe and secure home for K.C.

On behalf of K.C., her Law Guardian filed an appeal, denominated A-5244-08, arguing that the judge erred when he refused to terminate S.A.'s parental rights. DYFS joins in urging a reversal of the judgment in A-5244-08, while S.A. argues for an affirmance. In A-5626-08, S.A. appeals from the termination of her parental rights to C.B.

II.

Parents have a fundamental liberty interest in raising their children. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 86-87 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). Therefore, the "[f]undamental rights and interests of parents must be heavily weighed against critical concerns of the State acting as parens patriae to protect the health and welfare of children and to keep them from abuse or neglect or other conduct with deleterious consequences." Id. at 86. Mindful of these considerations, New Jersey courts have "consistently imposed strict standards regarding the termination of parental rights." N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 83 (App. Div. 2003) (citing In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999)). Before terminating parental rights, the trial court must apply the four prong "best interests of the child" standard and make the following specific findings:

(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 standards are neither "discrete [nor] separate." They overlap to provide a composite picture of the standards the trial court must apply. K.H.O., supra, 161 N.J. at 348. "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 that it requires severance of parental ties." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)) (alteration in original).

"Appellate review of a trial court's decision to terminate parental rights is limited, and the trial court's factual findings 'should not be disturbed unless they are so wholly [i]nsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Moreover, "[w]hen 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." F.M., supra, 375 N.J. Super. at 259. However, our scope of review widens when the "'focus of the review is not credibility'" and the appellant "'allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom.'" J.T., supra, 269 N.J. Super. at 189.

A. The first Prong

Under the first prong of the statutory standard, the court must consider whether the "child's safety, health or development has been or continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). The standard may be satisfied "by an accumulation of harms over time." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004). The record demonstrates that S.A.'s twelve-year history with substance abuse and relapse, her personality attributes that cause her to blame others for her relapses, and her lack of insight into the harm that her conduct has caused to her children demonstrates that the health and development of both C.B. and K.C. has been, and will continue to be, endangered by the parental relationship.

Both children have experienced serious disruption in their young lives due to their mother's drug use. C.B., in particular, has experienced repeated disruptions and instability as she has been moved back and forth from her mother's home to her grandparents' home. The record also demonstrates that S.A.'s repeated periods of incarceration, which are attributable to addiction, have also deprived both children, particularly C.B., of the nurturing and stability to which they are entitled. Thus, DYFS provided clear and convincing evidence that satisfied the first prong of the statutory standard.

B. The Second Prong

To satisfy the first portion of the second prong, DYFS must establish that 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." N.J.S.A. 30:4C-15.1(a)(2). The judge credited Dr. Smith's conclusion that S.A. was unlikely to succeed in overcoming her addiction in the reasonably foreseeable future. The evidence in the record supports the judge's determination that S.A.'s history of drug abuse, which included, according to the judge, at least four relapses and at least two failures in drug treatment programs, amply satisfies the first portion of the second prong. Such evidence demonstrates S.A.'s unwillingness or inability to address her drug addiction.

S.A.'s lack of motivation to successfully resolve her addiction and provide a stable home for her children is also illustrated by her chilling comment that she "only" used two bags of heroin in the morning, just enough to "get [her] motivated" so she would have the energy and inclination to care for her children during the day. This remark provides the most telling evidence that S.A. is unlikely to achieve a drug-free life. As is evident from her remark, she views heroin and cocaine as a method of boosting her energy and helping her cope with her children. This lack of insight is further evidence of her inability or unwillingness to overcome the problems that led to removal of her children in the first place.

The second portion of the second prong requires DYFS to establish that any further "delay in permanent placement would add to the harm." N.J.S.A. 30:4C-15.1(a)(2). As to C.B., the record demonstrates, as the judge correctly found, that any further delay in permanent placement would only exacerbate the harm C.B. had already suffered as a result of her mother's frequent relapses and numerous periods of incarceration and C.B.'s constant transfer back and forth between her mother and her grandparents. In light of this evidence, we are satisfied the judge correctly found that any further delay in placement would add to the harm C.B. has suffered.

In contrast, we reject the judge's conclusion that DYFS did not prove by clear and convincing evidence that any further delay in placement would harm K.C. As we have noted, the judge reasoned that because K.C. is younger, and had not been moved back and forth from her mother's home to her grandparents' home in the same way that C.B. had, K.C.'s need for permanency did not outweigh the possibility that S.A. could overcome her drug addiction and be able to provide a stable home for K.C. Leaving K.C. in limbo for five years -- while her mother struggles in Drug Court to overcome a problem so severe that it has persisted for twelve years -- is a misapplication of the second prong of N.J.S.A. 30:4C-15.1(a)(2).

The judge's approach exemplifies the practice we criticized in N.J. Division of Youth & Family Services v. C.S., 367 N.J. Super. 76, 114 (App. Div.), certif. denied, 180 N.J. 456 (2004), when we held that a child should not be expected to wait for her mother "to get herself together." "A child is not a chattel in which a parent has an untempered property right." Id. at 110. Children must not languish indefinitely in foster care while the parent attempts to correct conditions that resulted in an outof-home placement. Id. at 111. "A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." Ibid.

The judge's conclusion that K.C. should be forced to wait five years for permanency to give her mother yet another chance to overcome her addiction is a misapplication of the second portion of the second prong of N.J.S.A. 30:4C-15.1(a)(2). We therefore reject the judge's conclusion that a delay in permanency would not be harmful to K.C.

C. The Third Prong

The first portion of the third prong requires us to examine whether DYFS made "reasonable efforts to provide services to help the parent correct the circumstance which lead to the child's placement." N.J.S.A. 30:4C-15.1(a)(3). The judge found that DYFS had made reasonable efforts to help S.A. overcome her addiction by providing her with drug treatment, drug testing and individual therapy. However, as we have noted, the judge concluded that while these efforts were more than adequate as to C.B., such services were "not really specific" to K.C. For that reason, the judge concluded that although DYFS had satisfied the first portion of the third prong as to C.B., it had not done so as to K.C.

The judge's reasoning erroneously tends to compartmentalize DYFS's efforts by essentially turning back the clock once K.C. was born. Stated differently, the judge appears to have concluded that although DYFS provided considerable efforts to S.A. before K.C. was born, DYFS had not yet had the opportunity to provide the same array of services to S.A. after K.C.'s birth. In effect, the judge's reasoning wiped the slate clean at the moment of K.C.'s birth and required DYFS to start all over again and provide the same extensive array of services that had already been unsuccessful, through no fault of DYFS.

As the Court observed in D.M.H., supra, 162 N.J. at 393, "[t]he diligence of DYFS's efforts on behalf a parent is not measured by their success. . . . These efforts must be assessed against the standard of adequacy in light of all the circumstances of a given case." Therefore, the judge misapplied the governing legal standards imposed in D.M.H. when he disregarded all of the services DYFS had provided to S.A. before K.C. was born. Having found that DYFS provided sufficient services to S.A. to satisfy the third prong in relation to C.B., the judge erred by refusing to make the same finding concerning K.C. We thus affirm the judge's conclusion that the first portion of the third prong was satisfied as to C.B. and reject his finding that the third prong was not satisfied as to K.C.

The second portion of the third prong requires the judge to "consider[] alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). As we have noted, the judge concluded that there were no viable alternatives to termination of S.A.'s parental rights to C.B. In particular, the judge considered whether reunification between S.A. and C.B. would be a viable option, but rejected that possibility as "be[ing] off the mark" because C.B. had been exposed to so much trauma as a result of her mother's addiction and had bonded substantially with her grandparents, who were her caregivers. The judge's findings on this score are supported by substantial and credible evidence in the record and we will not disturb them. S.A. has offered no alternatives to termination of her parental rights other than her insistence that the judge erred when he refused to consider reunification with C.B. as a viable alternative to termination of her rights. We affirm the judge's determination that the second portion of the third prong was satisfied as to C.B.

As to K.C., as we have noted, the judge took a different tack. He concluded that the alternative of future reunification should be explored before proceeding with termination of S.A.'s parental rights to K.C. In particular, the judge viewed S.A.'s participation in Drug Court as an acceptable alternative to termination of S.A.'s rights to K.C. The judge reasoned that because K.C. had been removed from S.A. immediately after birth and given to her grandparents, K.C. had not experienced the consequences of S.A.'s addiction and self-destructive behavior.

For that reason, according to the judge, reunification was a viable alternative to the termination of S.A.'s parental rights to K.C. We disagree.

As the record demonstrates, S.A. has failed at parenting K.C.'s four older siblings. There is no reason to think S.A. will perform any differently with K.C. See N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002). The prospect of allowing K.C. to remain in limbo for the five-year period that Drug Court requires is certainly not the "alternative to termination of parental rights" that the Legislature had in mind with N.J.S.A. 30:4C-15.1(a)(3). See C.S., supra, 367 N.J. Super. at 111. We thus reject the judge's determination that DYFS failed to prove by clear and convincing evidence that there were no alternatives to termination of S.A.'s parental rights to K.C.

D. The Fourth Prong

Under the fourth prong, the trial court must assess whether DYFS proved by clear and convincing evidence that the termination of parental rights "will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). As we have already observed, the judge concluded that DYFS had satisfied this prong as to both K.C. and C.B. The judge correctly determined that this prong was satisfied as to K.C. because she had been removed from her mother's care only days after birth, she had no relationship with her mother, and had not bonded with her. Separating her from a mother with whom she had no relationship could not be, according to the judge, a greater harm than separating her from her maternal grandparents, to whom she had established a secure and loving bond and who wished to adopt her. S.A. has provided no meritorious basis to cause us to reject the judge's findings on the fourth prong as they relate to K.C.

As to C.B., the judge credited Dr. Smith's opinion that C.B. had no substantial attachment to her mother and merely "tolerated her mother's presence as she would any adult with whom she had only a passing relationship." The record supports the judge's conclusion that although C.B. might suffer some slight harm from termination of her mother's parental rights, this harm pales in comparison to the greater harm C.B. would suffer were she to be separated from the only permanent home she has ever known and the caretakers to whom she has bonded, in order to reunify her with a mother she barely knows. We thus reject S.A.'s claim that we should reverse the judge's finding that DYFS satisfied the fourth prong as to C.B.

In summary, we conclude that DYFS satisfied all four prongs of the statutory test in relation to C.B. and thus affirm the judgment in A-5626-08. In A-5244-08, we reverse the judgment that denied DYFS's request for termination of S.A.'s parental rights to K.C., and remand for the entry of a judgment awarding guardianship of K.C. to the Division.

Affirmed on A-5626-08.

Reversed on A-5244-08.

20100512

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