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

September 1, 2010

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



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

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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