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


October 7, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-93-09.

Per curiam.



Submitted September 29, 2010

Before Judges Fisher, Sapp-Peterson and Simonelli.

The Division of Youth and Family Services (the Division) commenced this action and ultimately prevailed at the conclusion of a trial in obtaining a judgment terminating the parental rights of defendants D.R. and J.S. to their child, E.M.S. Only the child's father, defendant J.S. (defendant), has appealed, arguing that the evidence was of insufficient weight to establish the four-pronged test set forth in N.J.S.A. 30:4C-15.1(a). We reject his arguments and affirm substantially for the reasons set forth in Judge Stephen J. Bernstein's written decision.

In briefly summarizing the evidence, we observe that E.M.S. was born prematurely on October 8, 2007. The child tested positive for methadone and opiates at the time of birth and suffered mild symptoms as a result. The child's mother, D.R., admitted using heroin while pregnant.*fn1 As a result, the Division took legal action to obtain temporary custody shortly after the child's birth. The Division also contacted defendant J.S., who was then living in a boarding home while on probation for prior drug convictions. Defendant acknowledged he was in no position to care for the child and, when well enough to leave the hospital, the child was placed in foster care where she presently remains.

After obtaining custody, the Division immediately provided services to both parents with a goal toward reunification. These efforts proved unsuccessful. As they pertain to defendant, the Division offered a multitude of services, most of which were frustrated by defendant's subsequent incarcerations. For example, the Division arranged for bi-weekly visitation between defendant and the child, but defendant tested positive for cocaine in early January 2008 and again in early February 2008, leading to his arrest and subsequent incarceration in February 2008 for violating the terms of his parole.

Beginning in late April 2008, defendant was released to a halfway house for approximately one month. While there, the facility provided services geared toward resolving defendant's substance abuse problems. Once released, defendant took up residence in a Newark shelter. The Division continued to work toward reunification by referring defendant for a substance abuse assessment, parenting skills classes, individual and group counseling, and parent-child learning sessions. A second psychological evaluation was also conducted and completed by the end of July 2008.

The goal of reunification, however, received a severe setback when defendant tested positive for heroin on September 2, 2008. This led to his termination from drug court and subsequent incarceration. Defendant was released and sent to an inpatient drug treatment program in January 2009, where he remained until April 2009, when he successfully completed the substance abuse treatment program. Defendant thereafter took up residence in a Newark shelter. The Division set up a new visitation schedule and scheduled yet another psychological evaluation.

Defendant thereafter obtained his own residence, a basement studio apartment in Newark. This residence, however, was unsuitable for the child because of numerous safety violations. The apartment was under construction at that time; it had only one way to enter or exit, and loose electrical wires dangled in the hallway. Defendant acknowledged the apartment was not ready for the child and was unable to provide a time certain by which all necessary repairs would be completed. Defendant further acknowledged he was not financially able to provide for the child because he was unemployed due to an old injury for which he was pursuing a disability claim.

Less than one month prior to the guardianship trial, the Division learned that defendant was living with a woman, C.R., who had both a criminal and substance abuse history. As defendant himself recognized, his current living arrangements were not suitable or appropriate for the child.

After receiving during the four-day trial clear and convincing evidence establishing the facts and circumstances briefly outlined above, as well as others, Judge Bernstein concluded that application of the following four prongs of the statutory test were met:

(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 . . .;

(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-15.1(a).]

Briefly, as for the first prong, the judge found from defendant's history of criminal offenses and substance abuse, as well as the psychological issues revealed by expert testimony, that the child's health and development had been endangered by the parental relationship. The judge also found the second and third prongs established because the Division provided defendant with numerous services and defendant had failed, despite these many opportunities, to rehabilitate himself and obtain reunification during the two years that elapsed from the child's birth until the trial in this matter. And the judge found the fourth prong satisfied by the fact that the child had been in the same foster home since her release from the hospital after her birth, resulting in the creation of a bond with her foster parents, who the child viewed as her "real" parents. The judge concluded that removal of the child from her foster home would be detrimental to her development and cause further harm and, thus, termination would not do more harm than good.

Our standard of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb factual findings when they are so manifestly unsupported by or inconsistent with competent, relevant, and reasonably credible evidence as to offend the interests of justice. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998). For these reasons and others more fully described in the judge's written decision, with which we substantially agree, we affirm the judgment under review.


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