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


September 1, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-71-09.

Per curiam.



Submitted July 20, 2010

Before Judges R. B. Coleman and C. L. Miniman.

Defendant C.B. (the mother) appeals from a judgment of guardianship entered on October 15, 2009, following a trial conducted on August 24, 25, and October 15, 2009. The judgment terminated the mother's parental rights to her daughter, T.B., born November 28, 2005, and denied the mother's request for a stay pending appeal. The father, E.B., was also a defendant at trial; his parental rights were not then terminated. Instead, custody of the child was to remain with the Division of Youth and Family Services (DYFS or the Division), subject to an October 15, 2009 Case Management Order that permitted the father weekly supervised visitation with an anticipated progression toward unsupervised and overnight time when deemed appropriate by DYFS. The briefs of the parties on appeal indicate the father's parental rights to T.B. were subsequently terminated, but that ruling is not addressed in this appeal and the father is not a participant in this appeal.

On appeal, the mother contends that the trial court failed to make adequate findings of fact and conclusions of law in its decision, and she argues that none of the four prongs of the statutory "best interests of the child" test, N.J.S.A. 30:4C-15.1(a), were established at trial. We disagree and accordingly, we affirm the judgment on appeal.

At the conclusion of the trial, the court rendered an oral opinion from the bench. After expressing general remarks about the tension between the parents' right to raise their children and the children's right to be protected by the State, the court recited the four-pronged statutory standard set forth in N.J.S.A. 30:4C-15.1(a). Thereafter, the court noted that the history of conflict between the parents of T.B. was such that it was necessary for the child's safety for her to be removed from the parents' house and placed with the maternal grandmother, L.K., for short or extended periods of time, and eventually in September 2007, "it required a more permanent placing of the child in the care of the grandmother." The court found, that there was in fact a high degree of violence in the home at that particular time, that there was an extended and abusive use of alcohol in the home, and that the care of the child or the care that the child was in fact receiving was careless, spotty, inconsistent, certainly not conducive to good mental and physical well being of the child. So the court finds that there was in fact a substantial necessity to remove the child at that time and make sure that there was an adequate placement outside the home.

Later in the oral opinion, the court observed:

With regard to the mother, she was at the time unemployed. She had no stable housing, was not in a position to continue to parent the child. And to a large extent, at the conclusion of this case as I sit here today, those conditions still exist. She's not employed. She has no stable housing. She has been essentially noncompliant with the dictates of the Division in order to assist in this case. There's no substance abuse counseling. And for all intense [sic] and purposes, other than the fact that she has been seeing the child fairly consistently throughout this, she's done essentially nothing. So that today, over two years later, the same conditions [sic] that she was in September of 2007 continues to exist despite the efforts of the Division to assist. The Court is satisfied that that is so.

While defendant argues the court's fact-finding was inadequate, we reject that argument, and we note that "an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)) (alteration in original). Defendant contends the trial judge did not refer to specific evidence to support each of its findings and conclusions; however, the critical findings and conclusions are not in serious dispute. For example, there is no dispute that defendant's finances and housing were unstable. Moreover, there is support in the record for the articulated findings and conclusions regarding the mother's failure to avail herself of substance abuse counseling. In addition, despite her long history of domestic violence, both as a victim and as a perpetrator, defendant failed and refused to remove herself from the cycle of violence.

The best interests standard was first articulated by the Supreme Court in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591, 604-12 (1986). The Legislature subsequently amended Title 30 in 1991 to conform with the Court's holding in A.W., codifying the standard at N.J.S.A. 30:15.1(a). See L. 1991, c. 275, § 7. The statute provides that the Division must prove by clear and convincing evidence 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; and

(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).]

See also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004) ("On appeal, a reviewing court must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court.").

These four factors are not independent of each other; rather, they are "interrelated and overlapping... designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super 81, 88 (App. Div. 2006), cert. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive" requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid.

The trial court found that the first prong of the best interests standard had been met by the "history of conflict between mother and father." The court found that the parents had persistently failed to perform parental functions, that the care of the child was "careless, spotty, inconsistent and certainly not conducive to the good mental and physical well being of the child." There was such conflict in the home that a more permanent placement was required.

With regard to the mother, Dr. Karen D. Wells, a licensed psychologist who testified as an expert witness on behalf of the Division, offered the following opinion:

In light of the information provided, the test results, my clinical impressions did not offer any support that [the mother] would be able to provide even minimal parental care and responsibility for [T.B.].

I believe that [T.B.] would be at risk of harm if she were placed in [the mother's] care in light of the incidents of domestic violence, in light of [the mother's] failure to appreciate that there had been a need for concern or alarm in light of the fact that she had dropped the restraining order and was attempting to reconvene with [the father] which I was concerned about whether or not there would be further incidents of domestic violence and because she had a pervasive maladaptive life pattern, and so that was concerning, that she did not possess sufficient stability in her own functioning or in interpersonal relationships to be able to safeguard the well[-]being of a child.

Regarding the second prong, the court was of the view that "[a]s to the mother it's quite clear, she is not capable at this time, nor in the foreseeable future of being able to parent this child." The mother had given birth to four other children. None of those children have remained in her custody and care for any extended period of time. Two are in kinship legal guardianship with their paternal grandparents. One was with his father, and another had been adopted. The record suggests that, even before the removal by DYFS, the mother left the primary care of T.B. to her mother, the child's grandmother.

As to prong three, the court found that the mother had been essentially noncompliant with the dictates of DYFS in order to assist in the case. The Division provided substance abuse evaluations and treatment, visitation, counseling, a referral for in-home parenting classes and psychological evaluations. The court found that the mother had not completed the substance abuse counseling, and she continues to allow herself to become involved in situations of conflict that would be harmful for her and for the child. Even at the time of trial, the mother was seeking to reunite with the father, who had abused her.

In lieu of termination of her parental rights, the mother proposed that the child remain in the care of the seventy-seven-year-old maternal grandmother. DYFS had placed the child with the grandmother, but she was eventually ruled out. The grandmother was not a licensed caregiver and DYFS became concerned because of the grandmother's history with the Division, her financial instability (even with the child care stipend), the existence of two restraining orders against her, and her involvement in the pretrial intervention program. Also, the grandmother did not have T.B. immunized and would not take the child to daycare. On at least one occasion, the grandmother would not allow Division representatives access to her home until the local police arrived. She also allowed the mother to have unsupervised visitation with the child in contravention of court orders restricting visitation.

Finally, as to the fourth prong, the court concluded that termination of the mother's parental rights would not do more harm than good. The court noted that the Division psychologist found that the child had a substantial bond with the grandmother, but not with the mother. According to the psychologist, the child related in a comfortable and familiar manner with the mother, but there are no indications that a significant parent-child bond exists. There was no bonding evaluation of the child and the current caretaker, who wishes to adopt T.B. That relationship was relatively new as of the time of the trial.

We are satisfied that DYFS established by clear and convincing evidence the elements required by N.J.S.A. 30:4C-15.1(a). Moreover, in light of the limited scope of our review and the deference to be accorded to the findings of fact by a Family Part judge in a termination proceeding, Cesare, supra, 154 N.J. at 412, we find no basis to disturb the judgment entered by the court in this matter.



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