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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 15, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
J.W., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF Z.Y.W., MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-16-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 4, 2010

Before Judges Lisa and Sabatino.

Defendant, J.W., appeals from the November 4, 2009 judgment of guardianship terminating his parental rights to his daughter, Z.Y.W., who was born on October 6, 2004. Z.Y.W.'s mother, L.R.D., defaulted in the trial court proceedings. Her parental rights to Z.Y.W. were also terminated, and she has not appealed. The trial court proceedings also involved another child of L.R.D., her son Z.K.D., who was born on October 12, 2006.

L.R.D.'s parental rights to Z.K.D., as well as the rights of Z.K.D.'s father, K.H., were also terminated in that proceeding. Neither parent has appealed.

Defendant argues that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of proving the third and fourth prongs of the best interests of the child test. The Law Guardian supported termination in the trial court and joins the Division on appeal in urging us to affirm the termination order. We are satisfied from our review of the record that the Division presented sufficient evidence to support Judge Callahan's findings that the third and fourth prongs (as well as the first and second prongs) were clearly and convincingly established. Therefore, we affirm.

I.

The Division's involvement in this case began on June 15, 2007, when Z.K.D.'s paternal grandmother, L.H., informed DYFS that L.R.D. had been wandering the streets, looking for someone to take Z.K.D. from her. DYFS initially took custody of Z.K.D., who was placed in L.H.'s care. However, DYFS was unable to immediately locate Z.Y.W. or L.R.D. When they were located, the Division took custody of Z.Y.W. and placed her with her maternal aunt, R.D.

Sometime after Z.Y.W.'s initial placement, R.D. was arrested on drug charges. By January 15, 2008, Z.Y.W. was placed with L.H., who continued to have custody of Z.Y.W.'s half brother, Z.K.D.*fn1

While caring for both children, L.H. requested and received assistance from the Division. L.H. embarked upon the process of becoming licensed as a foster parent. She asked the Division for assistance with paying off several outstanding traffic fines that were impeding the licensing process. The Division notified her that it was willing to pay a portion of those fines, and it ultimately paid $678. L.H.'s home was licensed in January 2009.

On January 12, 2009, L.H. requested that Z.Y.W. be removed from the home because L.H. was unable to care for her. On January 14, 2009, Z.Y.W. was removed from L.H.'s home and placed with a foster mother. Z.Y.W. has remained in that foster home and is doing well. Her foster mother intends to adopt her.

In the hopes of reuniting the children with their mother, DYFS provided L.R.D. with various services, including counseling, psychological and psychiatric evaluations, parenting skills programs, drug screening, case plans, and transportation assistance. L.R.D. was substantially non-compliant with these services. L.R.D. failed to appear at various court proceedings, as a result of which default was eventually entered against her. She did not attend the trial.

Defendant was incarcerated at all times during these proceedings. He was arrested on August 13, 2005, when Z.Y.W. was only ten months old. He has remained incarcerated since that time. He was sentenced for multiple offenses arising out of that arrest, including armed robbery, assault, and weapons violations. His first parole eligibility date will be in October 2015. Notwithstanding his incarcerated status, defendant was transported from State Prison and attended court proceedings, including the trial.

Defendant was never considered a viable option to care for his daughter. He proposed two family members as potential placements. His mother was ruled ineligible because of a criminal history, involving offenses for which waivers are not permitted. Defendant's cousin, S.L., a twenty-seven-year-old single mother of a seven-year-old boy, was interested in taking Z.Y.W. She was initially ruled ineligible due to inadequate housing, but she subsequently obtained larger living quarters and was reevaluated. S.L.'s background checks were favorable. With the assistance of DYFS, she applied for foster-home licensure. The Division's goal was to place Z.Y.W. with S.L.

However, on July 20, 2009, DYFS notified S.L. that she had two outstanding bench warrants against her for traffic fines. DYFS gave S.L. a deadline of August 13, 2009 to resolve the matters. S.L. owed $644 in fines. Until these matters were resolved, she could not be licensed by the Division. S.L. assured the Division she would resolve the matter. She never said she did not have the funds to pay the fines and never requested financial assistance for that purpose. She simply ceased contact with the Division, notwithstanding multiple efforts by the Division to contact her. S.L. also stopped the weekly visitation that had been arranged for her. Eventually, the visitation was terminated due to S.L.'s noncompliance. As a result of these events, S.L. was ruled out as a resource parent for Z.Y.W. on August 23, 2009.

Trial was conducted over five dates in September and October 2009. On November 4, 2009, Judge Callahan issued a comprehensive oral decision. The judge reviewed the evidence presented and made detailed factual findings. He concluded that the Division clearly and convincingly proved all four prongs of the best interest test. Accordingly, on that date, he entered the judgment of guardianship from which defendant appeals as to his termination of rights to his daughter, Z.Y.W.

II.

The right of parents to a continued relationship with their children is protected by the federal and state constitutions. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed. 2d 551 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). However, "[p]arental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

The best interests of the child standard represents the State's balancing of these two interests. Ibid. In accordance with the Court's holding in A.W., supra, 103 N.J. at 591, the Legislature has set forth the following test to determine whether parental rights should be terminated:

(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-15.1a.]

DYFS bears the burden of proving all four prongs by clear and convincing evidence. A.W., supra, 103 N.J. at 611--12. These four criteria "are not discrete and separate; they 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 (citing In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

Appellate courts are limited in their review of trial court decisions to terminate parental rights. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). If the decision is "supported by adequate, substantial, and credible evidence in the record" the appellate court must defer. Ibid. Further, because of the particularized expertise of family court judges in family matters, we accord enhanced deference to family court factfinding. Cesare v. Cesare, 154 N.J. 394, 411--13 (1998).

III.

Because defendant does not dispute the trial court's findings regarding the first and second prongs, we need not address them. We turn to those aspects of the courts findings that defendant challenges, beginning with the third prong.

Defendant argues that there was a lack of concrete, credible evidence that the Division made reasonable efforts to provide him services as required under the third prong. He maintains that DYFS should have developed a plan to effectuate either reunification or placement with a willing relative of his. We do not agree that the Division's efforts in this regard were deficient.

Generally, DYFS is required to make a reasonable effort to provide services to the parents with the goal of eliminating the harm that removed the children from the home. N.J.S.A. 30:4C-15.1a(3); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 441 (App. Div. 2009). The relative success or failure of the services offered is not determinative of whether a reasonable effort was made to offer them. In re Guardianship of DMH, 161 N.J. 365, 393 (1999). Where, as here, one biological parent has been the primary custodial parent, the Division is entitled to focus its services on that parent, so long as it does not ignore or exclude the non-custodial parent. Ibid.

DYFS is required to "initiate a search for relatives who may be willing and able to provide the care and support required by [a] child" in its care. N.J.S.A. 30:4C-12.1a. Further, the Division's policy favors placing children in the care of their relatives. N.J. Div. of Youth & Family Servs. v. K.F., 353 N.J. Super. 623, 636 (App. Div. 2002). However, "there is no common law presumption in favor of an award to a mother as opposed to a father, or to a relative as opposed to a third party." N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528 (App. Div. 2003). While there are statutory references to such placements, see N.J.S.A. 9:6-8.54a; N.J.S.A. 30:4C-12.1a, there is no presumption in favor of such a placement; the only custodial presumption favors natural parents over other relatives. Watkins v. Nelson, 163 N.J. 235, 246 (2000). Such a presumption does not apply here, as neither biological parent is a viable alternative for placement and care of Z.Y.W.

In this case, the Division made reasonable efforts to contact family members and determine whether they were willing to care for Z.K.D. and Z.Y.W. The Division attempted to keep defendant informed, and pursued the relatives he suggested as potential placements for Z.Y.W. Consistent with N.J.S.A. 9:6B-4b, which requires that children placed outside of the home receive the Division's best efforts to place them with a family member, once defendant's two relatives had been identified, DYFS began investigating them as potential placements for Z.Y.W. Defendant's mother was quickly ruled out, but S.L. was considered twice. She received numerous services and was only ruled out when she failed to satisfy the Division's deadline for paying outstanding traffic fines, stopped visiting with Z.Y.W., and ceased all contact with the Division. Under DMH, supra, 161 N.J. at 393, the mere fact that the efforts to place Z.Y.W. with S.L. were unsuccessful does not in itself indicate that the Division failed to make reasonable efforts.

Judge Callahan noted that, due to defendant's extended incarceration, DYFS was under no legal duty to provide reunification services to him. Defendant does not argue otherwise. Nevertheless, the Division did make numerous attempts to place Z.Y.W. with defendant's extended family. The judge found that S.L. routinely failed to respond to the Division's phone calls and letters, and also was not present for scheduled visitations. She also failed to meet licensure requirements. Therefore, the judge found that the Division proved it made reasonable efforts to provide substantial services to J.W. and S.L. This finding was based on substantial, credible evidence in the record, and we have no occasion to disturb it on appeal.

Defendant also challenges the fourth prong, which requires DYFS to prove that the severance of parental rights will not "do more harm than good." N.J.S.A. 30:4C-15.1a(4). This does not mean that the Division must show that no harm will result. K.H.O., supra, 161 N.J. at 355. The determination requires a balancing of the child's competing relationships to decide whether the child would "suffer greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." Ibid. Generally, expert testimony is required to outline the specific strengths of each relationship. Ibid.

Judge Callahan found that a bond between Z.Y.W. and her foster mother had been established after Z.Y.W.'s placement with the foster mother on Jan. 14, 2009. He found that "to sever or disturb [that bond] could well cause severe and enduring psychological harm." These findings were based on the testimony and report of Dr. Mark Singer, and the report of Dr. Donna LoBiondo.

Both experts conducted bonding evaluations between Z.Y.W. and her foster mother. Dr. LoBiondo, defendant's expert, was unable to reach a conclusion as to the likely consequences of a termination of parental rights due to the lack of a comparative bonding evaluation with defendant, or others with whom Z.Y.W. "may still have some residual attachment." She acknowledged the "presence of a positive rapport and an affectionate and caring relationship between [Z.Y.W.] and her foster mother." Dr. Singer, the Division's expert, testified that his bonding evaluation indicated that the foster mother had become Z.Y.W.'s psychological parent. Dr. Singer opined that, if the two were separated, Z.Y.W. would "likely experience a significant reaction. And based upon the totality of the data, it would not only be significant, but would also likely be enduring in nature."

Neither expert evaluated any potential bond between Z.Y.W. and S.L. due to S.L.'s continued absence. Judge Callahan was "satisfied as this case played out with the unexplained absence of [S.L.] as the proposed alternative balancing adult, that there could be no further comparisons or balancing undertaken under prong four under all the circumstances."

Defendant relies upon two cases, New Jersey Division of Youth & Family Services v. T.C., 251 N.J. Super. 419 (App. Div. 1991), certif. denied, 146 N.J. 564 (1992), and G.L., supra, 191 N.J. at 609, to support his contention that the evidence and findings under the fourth prong were "incomplete as S.L. did not participate in a bonding evaluation with Z.Y.W. before either expert." Neither case supports defendant's claim.

In T.C., we noted that "termination without implication of substantial parental fault and based exclusively upon foster-parent bonding during temporary placement goes beyond the articulated standards of [the best interests test]." T.C., supra, 251 N.J. Super. at 432--33. Here, the termination decision was not based exclusively upon the foster-parent bonding, but rather, upon myriad factors, including defendant's incarceration, L.R.D.'s unfitness, and proof satisfying the first three prongs.

In G.L., the Court noted that a bond with a foster parent "does not provide an independent basis for termination where the other standards have not been satisfied." G.L., supra, 191 N.J. at 609. Unlike the facts in G.L., where DYFS was unable to prove each element of the best interests test, here the Division satisfied its burden under the first three prongs. Therefore, prong four served its intended purpose as "a fail-safe against termination even where the remaining standards have been met." Ibid. Under the facts in this case, the court was justified in finding that there was no need for a bonding evaluation with S.L. because she was properly ruled out as a placement.

Defendant also relies on A.R., supra, 405 N.J. Super. at 440, to support his contention that, because no bonding evaluation was conducted between him and Z.Y.W., one was required between S.L. and Z.Y.W. In A.R., we rejected the Division's argument that "a comparative bonding evaluation is not required when it has demonstrated parental unfitness by clear and convincing evidence." Id. at 439. We indicated that there were "very few scenarios in which comparative evaluations would not be required." Id. at 440.

In A.R. we addressed the lack of a bonding evaluation between a child and his biological parent for the purpose of evaluating the harm caused to the child. Id. at 439. In contrast, here the bonding evaluation that defendant describes would be between the child and a non-parent family member. Dr. Singer testified that the need for consistency and stability outweighed the need for a child to be with a non-parent relative. Further, a bonding evaluation with S.L. was not possible because she ceased contact with DYFS. Finally, as we have stated, a bonding evaluation with her was not warranted because the Division had sufficient grounds to rule her out as a placement.

Judge Callahan pointed to the need for permanency in the child's life without further delay. He noted that Z.Y.W. had been out of the home for over two years. Dr. Singer testified that permanency in placement was more important than a continued temporary placement with the goal of placing Z.Y.W. with a relative largely unknown to the child.

The judge found that, based upon the reports and expert testimony, prong four was satisfied. That finding, that severance of Z.Y.W.'s ties with her parents would not do more harm than good, was based upon substantial, credible evidence in the record, and we will not interfere with it on appeal.

Affirmed.


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