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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 9, 2010

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

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-000056-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 15, 2010

Before Judges Carchman and Parrillo.

Defendant, T.B., appeals from a final determination of the Family Part terminating his parental rights to T.T.B. Defendant contends that the court erred in finding that each element of the four-prong test established in N.J.S.A. 30:4C-15.1 was met by clear and convincing evidence. We disagree, and affirm.

Defendant, T.B., is the biological father of T.T.B.*fn1, who was born on October 9, 2006, to L.M., then 16 years old.*fn2 At the time of T.T.B.'s birth, L.M. herself was in the custody of the Division of Youth and Family Services (Division or DYFS). Both L.M. and her infant son lived with her cousin N.S. until the Division removed them and placed them in a foster home due to L.M.'s "severe" behavioral problems. Soon thereafter, L.M. was arrested for violating probation and placed in a juvenile detention center. On January 8, 2007, the Division was granted custody of T.T.B. pursuant to N.J.S.A. 9:6-8.21, N.J.S.A. 30:4C-12, and Rule 5:12.

T.T.B. remained in foster care until the Division placed him with another family member. After he was injured in that home, the Division again briefly placed T.T.B. in foster care and then back with the maternal cousin, N.S., in February 2008. T.T.B. has resided with N.S. since that time. N.S. wishes to adopt him.

At no point did T.B. ever offer himself as the primary parent. Born on May 19, 1987, T.B. has a history of juvenile delinquency, involvement with DYFS, and adult convictions. At twelve years old, T.B. was arrested on weapons, robbery, and assault charges after he threatened someone with a box cutter. Thereafter, he was charged with harassment after being placed in a Deverearux Teaching Home and threatening his host family with, what they believed, was a gun. He ran away from his next placement at the Crossroads facility in violation of his probation. During his adolescence, T.B.'s behavior resulted in numerous disrupted placements in both resource homes and other skilled facilities, like the Vineland Residential and Youth Employment System (YES) programs.*fn3

As a young adult, on June 22, 2007, T.B. was sentenced, after pleading guilty to both offenses from two separate indictments, to two-years probation and a suspended 364-day term for making terroristic threats and to a concurrent sentence of five-years probation for distribution and/or possession of a controlled dangerous substance with intent to distribute within 1,000 feet of a school zone. In June 2009, he was arrested and incarcerated for receiving stolen property. T.B. was again incarcerated just one month prior to the instant matter on charges relating to aggravated assault for violating the terms of a final restraining order (FRO) involving L.M.

In fact, T.B. has a history of domestic violence. The first FRO against him was issued in August 2008, involving the mother of his other child, for which T.B. had been previously arrested for violating. T.B. is also the subject of another FRO, issued in September 2009 and involving T.T.B.'s mother, L.M., for which, as noted, he was accused of violating and incarcerated for at the time of the instant trial.

Throughout his involvement with DYFS, T.B. was provided "significant therapy, psychological and psychiatric evaluations, medication monitoring [and] behavioral modification" to deal with his demonstrated "anger and aggression, and explosive" behavior and other mental health conditions, diagnosed as: "attention deficit disorder - mixed type, oppositional defiant disorder, bipolar affective disorder, depressive disorder - not otherwise specified, conduct disorder - solitary aggressive type, borderline intellectual functioning, and dsythymic disorder."

In the three years since T.T.B.'s birth, the Division has offered an array of services to T.B. to bolster his abilities as a parent. Among these services was a referral to parenting classes offered through Velez Professional Services beginning in October 2007. T.B. was discharged from these classes in November 2007 after missing nine of the sixteen meetings. Although T.B. tested negative for drugs at his substance abuse evaluations, he failed to attend the Division's family team meeting regarding T.T.B.'s permanency planning. He did not return the Division's case worker's telephone calls or present any plan as to how he would care for his son.

Most significant, over the course of T.T.B.'s time in foster care, T.B.'s involvement with his son gradually decreased. Initially, the trial court offered him a "liberal and open" visitation schedule in N.S.'s home, but this ended when a domestic violence altercation occurred between T.B. and L.M. during a visit. Thereafter, all visits were to occur at the Division's office, but T.B. rarely attended. As the Division case worker, Nikiya Beatty, testified at trial, "his visits became more sporadic and more sporadic until they were like months apart." T.B. never provided child support for T.T.B.

T.B. underwent a psychological assessment by Dr. Ronald Gruen, who also performed bonding evaluations of T.T.B. with T.B. and N.S. The psychological evaluation included a clinical interview as well as a battery of psychological testing, including the Millon Clinical Multiaxial Inventory-III (MCMIII), the Rotter Sentence Completion, and projected drawings. The results of the MCM-III testing indicated that T.B. has "significant psycho pathology; depression; anxiety; paranoia; underlying personality disorder . . . and borderline and dependant traits." Other testing determined that T.B. is "very immature, very emotionally labile or excitable, quick to anger, fixates on the negative, fails to mobilize himself to do something constructive, quick to act out, lacks frustration tolerance, history of unsatisfactory interpersonal relationships, easily upset by other[s] and quick to externalize blame, rather than to own it." These results led Dr. Gruen to opine that a parental relationship between T.B. and T.T.B. would be "unstable" and would be further burdened by T.T.B.'s young age and dependence on his caregivers.

It was Dr. Gruen's overall impression that T.B. had experienced "a dysfunctional childhood" and was "raised without a firm foundation of parenting." According to Dr. Gruen, this history caused T.B. to develop "a lot of abandonment issues" and a "poor self identity," causing him to act out during his youth. T.B.'s psychological weaknesses, as noted by Dr. Gruen, will likely require significant time and effort to correct, and furthermore, therapy would only be successful if T.B. was motivated to change. However, according to Dr. Gruen, T.B. does not have the motivation to engage in the intensive therapeutic process it would take for him to safely and effectively parent his son. T.T.B., on the other hand, is at a crucial stage of development in which his personality is being formed and, therefore, cannot wait for T.B. to undergo the therapy necessary to correct his conditions. In other words, it would only serve to disrupt T.T.B.'s permanency to make him wait any longer for his father to care for him. According to Dr. Gruen:

Because his personality is being formed.

The basis of his identity is between zero and five. That's what we believe. And, you know, he's being well taken care of now, he feels very secure where he is, and I think it will be very disruptive to him to move him from that setting, especially if his father has no home, no job, no opportunity to get himself together, and a history of incarceration and inappropriate conduct.

As noted, Dr. Gruen also performed bonding evaluations of T.T.B.'s relationship with T.B. and N.S. As to the former, Dr. Gruen found that T.B. was unable to provide any significant information about T.T.B. and has not maintained a pattern of visitation. It was Dr. Gruen's opinion that T.B.'s unwillingness to surrender T.T.B. was the product of his ego, not a genuine interest in the child's well-being. Dr. Gruen found that T.T.B. and T.B. had an "acquaintance relationship"; that T.B. does not serve as his psychological parent; and that T.T.B. is not bonded to him. He concluded that it would not cause T.T.B. serious and enduring harm to terminate T.B.'s parental rights.

In contrast, Dr. Gruen found that a bond did exist between T.B. and N.S., and that N.S. served as a "significant person" in the child's life and as T.T.B.'s "psychological parent[.]" Dr. Gruen found her to be a "capable, organized, and well-spoken woman; whom T.T.B. trusts and looks to to meet his needs." Dr. Gruen concluded that T.T.B. would suffer serious and enduring harm if removed from N.S.'s care.

T.B. testified at trial, but failed to offer a viable plan as to how he would care and provide for T.T.B. He explained that he is "out there trying to get on my feet and everything." At the time of trial, T.B. was unemployed and, when not incarcerated, living with his "female sponsor[,]" therefore, he could not have his son live with him until he could "stably get on [his] feet." When asked why he has not been able to find stability in the three years since his son's birth, T.B. offered several excuses:

In the last three years I've been on and off with a relationship with my daughter's mother who was - - I've been living with, actually, like, back and forth from her to my grandparents.

At the time, I've been trying to get on my feet. But I've also been going through a situation with my daughter's mother where she would kick me out sometimes, which is why we're not together now, so.

At the close of evidence, the Family Part judge, applying the four elements of the best interest of the child standard, as codified in N.J.S.A. 30:4C-15.1, terminated T.B.'s parental rights. Specifically, as to the first prong, finding that T.B.'s psychological dysfunctions would negatively impact his ability to parent, the court concluded that if T.B. were to assume custody of T.T.B., his son would suffer harm from the instability of the relationship, especially given T.T.B.'s young age. As to the second prong, the court concluded that T.B. is unable to and unwilling to correct this harm because he is not sufficiently motivated to engage in the therapeutic process necessary to correct these circumstances. Indeed, as the court concluded, T.B.'s lack of motivation is further evidenced by his failure to attend nine out of sixteen of his parenting skills classes. Regarding the third prong, the court also found that the Division provided reasonable efforts to provide services to unite T.B. and T.T.B. However, these efforts proved to be both unsuccessful and poorly attended by T.B. Further, the court found that there is no alternative placement to termination of T.B.'s parental rights as N.S. "is not interested in [kinship legal guardianship] and adoption would be the more desirable result . . . ." Lastly, the court found that T.T.B. is bonded to N.S. and should not be compelled to wait for T.B. to "get his act together" to become a responsible parent. Accordingly, the court concluded that "not only will termination of parental rights not do more harm than good, but that to terminate the relationship between T.T.B. and his current care giver would do more harm than not."

On appeal, T.B. raises the following issues:

I. THE STATE FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE THE FATHER'S PARENTAL RIGHTS IN ORDER TO PROTECT THE CHILD'S BEST INTEREST.

A. THE STATE FAILED TO PRODUCE EVIDENCE OF HARM TO THE CHILD AS A RESULT OF THE PARENTAL RELATIONSHIP BETWEEN THE FATHER AND CHILD.

B. THE STATE FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT THE FATHER IS UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILD.

C. DYFS FAILED TO PROVIDE SUFFICIENT SERVICES AND THE TRIAL COURT FAILED TO ADEQUATELY CONSIDER ALTERNATIVES TO TERMINATION.

C - i. DYFS FAILED TO PROVIDE SUFFICIENT SERVICES.

C - ii. THE TRIAL COURT FAILED TO SUFFICIENTLY PURSUE ALTERNATIVES TO TERMINATION.

D. THE TRIAL COURT ERRED IN CONCLUDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE TERMINATION OF THE FATHER'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

In balancing parental rights against the State's interest in the welfare of children, we place a heavy burden on the State to show that termination of parental rights is in the best interests of the child, which is achieved through the "best interests" standard. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). This standard provides that parental rights may be terminated upon a showing, by clear and convincing evidence, N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 280 (2007), that:

(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;

(4) Termination of parental rights will not do more harm than good.

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

These four factors are not "discrete," but rather "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.

"Appellate 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 will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings. Ibid. Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, [we] should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Governed by these principles, we are satisfied that the trial judge properly concluded that DYFS established by clear and convincing evidence all four prongs of the "best interests" test. We therefore affirm substantially for the reasons stated by Judge Fratto in his thorough and thoughtful oral decision of November 12, 2009. We add only the following comments.

With respect to the first and second elements of the best interests standard, N.J.S.A. 30:4C-15.1a(1) and (2), the alleged injury need not be physical. In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). "Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." Ibid. "'[H]arms attributable to the biological parent include the prolonged inattention to a child's needs, which encourages the development of a stronger, "bonding relationship" to foster parents,' which if severed could cause the child profound harm." K.H.O., supra, 161 N.J. at 352 (quoting N.J. Div. of Youth and Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996)). Furthermore, a parent's "inability to take custody of and care for her child and to provide a safe and stable home at any time since the child's birth . . . demonstrates parental unfitness and constitutes a continuing harm to the child under N.J.S.A. 30:4C-15.1(a)(2)." Id. at 353-54.

In assessing whether the parent is able to eliminate the harm to her child and whether a delay in permanent placement will add to that home, a court should not look at the parents to determine whether they are themselves unfit or whether they are the victims of social circumstances beyond their control; it should only determine whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care. No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health. [N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 607 (1986).]

Moreover, N.J.S.A. 30:4C-15(d) permits DYFS to seek termination of parental rights when it appears that a parent or guardian of a child . . . has failed for a period of one year to remove the circumstances or conditions that led to the removal or placement of the child, although physically and financially able to do so, notwithstanding the division's reasonable efforts to assist the parent or guardian in remedying the conditions[.]

Thus, "it may be shown that the parent is unstable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm."

K.H.O., supra, 161 N.J. at 348-49 (citing N.J.S.A. 30:4C-15.1a(2)).

Here, there is ample evidence that T.B.'s complex psychological disorders, lack of parenting ability, unstable home environment, and general absence from his son's life present a risk of harm to T.T.B., who is at a critical stage in his development. T.T.B. requires the stability, order, support, and permanency that T.B. cannot provide. As the trial judge found, T.B. is both unable and unwilling to care for T.T.B.

The evidence also demonstrates that these circumstances are unlikely to change and that T.B. is unable to eliminate the harm facing T.T.B. As the trial judge found, T.B.'s psychological dysfunction, his unwillingness to engage in corrective parenting classes, and his prolonged absence from T.T.B.'s life, all constitute evidence that "he is unable and unwilling to eliminate the harm facing [T.T.B.] were he to . . . be back in his life." Moreover, T.B.'s inability to procure gainful employment and stable housing persists to date and constitutes persuasive proof that T.B. continues to be unable to provide a safe and secure home for T.T.B.

In stark contrast, T.T.B. has developed a positive relationship with N.S., whom Dr. Gruen identifies as his psychological parent. As the evidence reveals, T.B. cannot mitigate the harm resulting from T.T.B.'s separation from N.S. Indeed, T.B.'s prolonged inattention to T.T.B.'s needs, evidenced through his frequent absence from training sessions, visitation, and appointments with DYFS, no doubt encouraged the development of a stronger bonding relationship between T.T.B. and N.S., which if severed could cause the child harm. See K.H.O., supra, 161 N.J. at 352. T.B. has not demonstrated, in the more than three years since T.T.B.'s birth, an ability to raise the child. T.B.'s "inability to take custody of and care for his child and to provide a safe and stable home at any time since the child's birth . . . demonstrates parental unfitness and constitutes a continuing harm to the child under N.J.S.A. 30:4C-15.1(a)(2)." K.H.O. supra, 161 N.J. at 353-54.

"[T]he third element of the best interests standard requires DYFS to undertake diligent efforts to reunite the family." Id. at 354 (citing N.J.S.A. 30:4C-15.1a(3)). This prong "contemplates efforts that focus on reunification . . . and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." Ibid. "Like considerations of parental fitness, an evaluation of the efforts undertaken by DYFS to reunite a particular family must be done on an individualized basis." In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999).

The diligence of DYFS's efforts on behalf of a parent is not measured by their success.

Thus, the parent's failure to become a caretaker for [his or her] children is not determinative of the sufficiency of DYFS's efforts at family reunification. These efforts must be assessed against the standard of adequacy in light of all the circumstances of a given case. [Id. at 393.]

Here, the record reveals that DYFS offered T.B. a variety of services, including parenting skills classes, substance abuse evaluation and drug testing, psychological and bonding evaluations, and most importantly, visitation with T.T.B. Instead of engaging in the services offered to correct the circumstances leading to T.T.B.'s placement and to develop a relationship with his son through visitation, T.B. chose to absent himself from T.T.B.'s life and not partake in the Division's reunification effort.

Also in satisfaction of the third prong, the undisputed evidence is that kinship legal guardianship was not a viable alternative plan for T.T.B. inasmuch as N.S. expressed her desire to adopt T.T.B. L.M. has already surrendered her parental rights so that T.T.B. could be adopted by her maternal cousin and thus, the court correctly found that adoption is the more desirable result. See N.J. Div. of Youth and Family Services v. P.P., 180 N.J. 494, 512-13 (2004).

The fourth element of the best interests standard requires a determination that terminating parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1a(4). In this regard, "[k]eeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law."

N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). And, where the child's "safety and emotional well-being . . . depend upon [the child] remaining with [his or her] foster parents[,]" the fact that the biological parent "may be morally blameless is not sufficient to tip the scales in [his or her] favor." Id. at 438-39. The proper inquiry under this "'prong is whether, after considering and balancing the two relationships, the child will suffer [a] greater harm from the termination of ties with [his] natural parent[] than from [the] permanent disruption of [his] relationship with [his] foster parent[].'" J.N.H., supra, 172 N.J. at 478 (quoting K.H.O., supra, 161 N.J. at 355).

Here, the State's expert found a positive, healthy bond between T.T.B. and his foster parent, and no such bond with T.B.; that T.T.B. would not suffer emotional harm from terminating T.B.'s parental rights; and that severing the bond with N.S. would harm the child's emotional well-being.

According to Dr. Gruen, N.S.'s home "is the only home that [T.T.B.] has ever known." There was sufficient support for the judge's determination that terminating parental rights will not do more harm than good to T.T.B. N.J.S.A. 30:4C-15.1a(4).

In sum, in recognition of New Jersey's strong public policy in favor of permanency and stability in guardianship cases, In re Guardianship of J.C., 129 N.J. 1, 26 (1992), we conclude that the termination of T.B.'s parental rights is supported by clear and convincing evidence.

Affirmed.


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