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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 20, 2010

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

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-68-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2010

Before Judges Fuentes, Gilroy and Ashrafi.

D.S., the biological mother of P.S., a boy born December 2007, appeals from the Family Part order of December 8, 2009, that terminated her parental rights to her son. We affirm.

"The right of parents to raise their children is a fundamental one of constitutional magnitude." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). That right, however, is not without limits. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). "That parental right must, at times, give way to the State's parens patriae obligation to ensure that children will be properly protected from serious physical or psychological harm." In the Matter of D.C. and D.C., Minors, ___ N.J. ____, ___ (2010) (slip op. at 34) (quoting Watkins v. Nelson, 163 N.J. 235, 246 (2000)).

"[P]resumptions of parental unfitness may not be used in proceedings challenging parental rights and all doubts must be resolved against termination." G.L., supra, 191 N.J. at 606. Termination actions brought under N.J.S.A. 30:4C-15.1(a) are decided under a four-prong "best interests of the child" standard, first enunciated by the Court in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-11 (1986), and now codified in N.J.S.A. 30:4C-15.1(a). Under that standard, parental rights may be terminated only when:

(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 [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).]

The "four [prongs] enumerated in the best interests standard 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.

Termination actions must be proved by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010).

On appeal, D.S. argues:

POINT I.

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION'S COMPLAINT WAS BASED ON AN IMPROPER "BETTER INTERESTS" DETERMINATION RATHER THAN THE STATUTORY MANDATED CRITERIA OF THE "BEST INTERESTS" TEST.

A. INSTEAD OF FOCUSING ON THE ACTUAL INJURY OR HARM TO P.S. IF SHE WAS PLACED IN THE CUSTODY OF HER MATERNAL GRANDMOTHER AS REQUIRED UNDER FIRST AND SECOND PRONG CRITERIA, THE COURT'S FINDINGS WERE BASED ONLY ON ITS PERCEPTION THAT THE DEFENDANT WAS AN UNFIT MOTHER.

B. THE DIVISION ABUSED ITS PARENS PATRIAE RESPONSIBILITIES UNDER THE THIRD PRONG BY ATTEMPTING TO DELEGITIMIZE THE MATERNAL GRANDMOTHER BECAUSE IT PERCEIVED THAT THE FOSTER MOTHER WAS A BETTER PLACEMENT FOR P.S.

C. TERMINATION OF PARENTAL RIGHTS WOULD DO MORE HARM THAN GOOD BECAUSE THE STATE FAILED TO ESTABLISH COMPELLING REASONS FOR TERMINATION UNDER THE FIRST THREE PRONGS OF THE BEST INTERESTS TEST.

Contrary to the appellant, the Law Guardian supports the decision of the trial court.

Our review of the trial court's factfinding on an appeal from termination of parental rights is limited. M.M., supra, 189 N.J. at 278. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Moreover, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (quoting Cesare, supra, 154 N.J. at 413).

We have considered the arguments advanced by appellant in light of the record, and for reasons expressed by Judge Silverman Katz in her thoughtful twenty-four page oral decision of December 8, 2009, we conclude that the evidence clearly and convincingly establishes that the child's best interests assessed under the statutory standard, N.J.S.A. 30:4C-15.1(a), warrants termination of appellant's parental rights. R. 2:11- 3(e)(1)(A).

Affirmed.

20101020

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