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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 5, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
H.D., DEFENDANT-APPELLANT, AND L.P., S.E., AND R.H., DEFENDANTS.
IN THE MATTER OF THE GUARDIANSHIP OF M.P., A.D., T.D. AND I.H., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-96-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 6, 2010

Before Judges Fuentes, Gilroy and Ashrafi.

Appellant H.D., the biological mother of M.P., a girl born December 1998; A.D., a boy born October 2001; T.D., a girl born June 2003; and I.H., a girl born February 2007, appeals from the Family Part order of July 16, 2009, that terminated her parental rights to her four children. H.D. has six other children, only one of whom at time of trial remained in H.D.'s custody. None of those six children are subject of this guardianship proceeding. L.P. and S.E., the biological fathers of M.P. and A.D., respectively, executed voluntary surrenders of their parental rights. R.H., the biological father of T.D. and I.H., defaulted in the termination action. Although the July 16, 2009 order also terminated the three biological fathers' rights to their respective children, none of the fathers have appealed. 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, 347 (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 re D.C. and D.C., Minors, ___ N.J. ____, ___ (2010) (slip op. at 34) (quoting Watkins v. Nelson, 163 N.J. 235, 246 (2000)). "Presumptions of parental unfitness may not be used in proceedings challenging parental rights and all doubts must be resolved against termination of parental rights." K.H.O., supra, 161 N.J. at 347 (internal citations omitted).

Termination actions brought under N.J.S.A. 30:4C-15.1a are decided under the 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-15.1a. 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-15.1a.]

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, appellant argues only that the trial court erred in determining that the New Jersey Division of Youth and Family Services (DYFS) had proven by clear and convincing evidence the third prong of the best interests of the child standard. Appellant contends that DYFS failed to prove the third prong because the agency "provided regular and routine services that are offered to all parents instead of the particular services to address the needs of a victim of domestic violence which is the reason the children were in an out-of-home placement." Contrary to 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. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. at 261, 278 (2007). "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 argument advanced by appellant in light of the record, and for reasons expressed by Judge Laskin in his written decision of July 10, 2009, we conclude that the evidence clearly and convincingly establishes that the children's best interests assessed under the statutory standard, N.J.S.A. 30:4C-15.1a, warrants termination of appellant's parental rights. R. 2:11-3(e)(1)(A). Nevertheless, we add the following comments.

The primary reason that DYFS removed the four children from appellant's care and custody was because R.H., the biological father of two of the children and appellant's paramour, physically abused her and the children, and yet, appellant continued to allow R.H. into her home placing the children at risk. Appellant argues that DYFS only provided her with routine services, generally applicable to parents in most termination actions, rather than services focused on addressing domestic violence. We disagree.

N.J.S.A. 30:4C-15.1a(3) requires DYFS to use "reasonable efforts to provide services to help the parent correct circumstances which led to the child's placement outside the home." "Reasonable efforts" means "attempts by an agency authorized by [DYFS] to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation. [N.J.S.A. 30:4C-15.1c.]

The Supreme Court has elaborated on the level of services necessary to satisfy this requirement. In the Matter of the Guardianship of D.M.H. 161 N.J. 365, 386-92 (1999). Though the statute then used the term "diligent efforts," rather than "reasonable efforts," the analysis is the same. Id. at 387 n.8. The Court found that the diligent efforts standard required DYFS to "encourage, foster and maintain the bond between the parent and child as a basis for the reunification of the family." Ibid. DYFS must also assist with visitation and inform the parent of his or her child's progress, as well as "of the necessary or appropriate measures" needed for the parent to regain custody. Id. at 390.

The circumstances of each case drive the determination of whether the agency's efforts are sufficient. Ibid. In a given case, it may be necessary for DYFS to provide "day care, housing assistance, referrals to drug treatment or medical and healthcare, parenting classes, financial assistance, and the like." Nevertheless, "[t]he diligence of DYFS's efforts on behalf of a parent is not measured by their success." Id. at 393. Thus, the parent's failure to become a caretaker for his [or her] children is not determinative of the sufficiency of DYFS's efforts at family reunification. These efforts must be assessed against the standard of adequacy in light of all the circumstances of a given case." Ibid.

There is ample evidence in the record to support the trial court's finding that DYFS's efforts satisfied its statutory mandate under the third prong. For example, on December 7, 2007, while DYFS investigated appellant's report that R.H. had beaten and injured T.D. with a belt, the caseworker engaged two sheriff's officers, who spoke to appellant about obtaining a restraining order against R.H. The sheriff's officers alerted the Pennsauken Police Department about the domestic violence and informed appellant that she need not allow R.H. back into the home. The caseworker then developed a "safety protection plan" with appellant and instructed her how to utilize the intercom and alarm features of her apartment. Appellant did not comply with the plan; that is, she permitted R.H. to return to her home. Nevertheless, DYFS made substantial efforts to that end.

DYFS also provided or facilitated a number of other services to appellant, some of which focused specifically on domestic violence issues. According to Blake Connor, a DYFS caseworker, DYFS provided appellant with psychological and psychiatric services, domestic violence counseling, parenting classes and reunification services. DYFS even continued the domestic violence counseling in appellant's home while she was pregnant. However, appellant missed a number of sessions and did not make progress in addressing the domestic violence issues in her relationship with R.H. Appellant attended parenting classes, but they did not dissuade her from having contact with R.H. DYFS also referred her to domestic violence counseling through the Camden County Women's Center PALS Program to help her children with the domestic violence they experienced, but she refused to participate.

Through the spring of 2008, orders were entered continuing custody of the children with DYFS. On August 12, 2008, DYFS assisted appellant with obtaining placement into a domestic violence shelter. However, she left the shelter the next day. On August 13, 2008, the court entered an order transferring legal custody of the four children back to appellant, conditioned upon her disallowing R.H. to have any contact with the minor children or herself. However, the reunification did not last. On October 21, 2008, the court again removed the four children from appellant's custody, finding that the removal was required to protect the children's life, safety, and health, because she had failed to protect the children by permitting R.H. to come in contact with one or more of her children.

Meanwhile, DYFS assisted with visitation between appellant and her children before custody was returned to her in August. The Robin's Nest Family Ties Program conducted a visitation program for approximately four months in 2008, and after the court ordered overnight visits for which Robin's Nest was not prepared, DYFS planned to step in to ensure the visits took place. After R.H. threatened to attend a session, causing its cancellation, DYFS held the visitation at its office.

We conclude that the services provided in this case met, if not exceeded, those found sufficient in D.M.H., 161 N.J. at 393-94. Parental cooperation with the services provided is paramount, and appellant was not sufficiently compliant with the services provided to her by DYFS. Her failure to take the necessary steps to provide her children with a safe environment by protecting them from R.H. underpins the termination of her parental rights. See New Jersey Div. of Youth and Family Servs v. R.L., 388 N.J. Super. 81, 86 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007) (providing that parental rights are balanced against the parens patriae of the State "to protect the health and welfare of children and to keep them from abuse or neglect or other conduct with deleterious consequences").

Affirmed.

20101105

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