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New Jersey Division of Youth and Family Services v. L.M.E.


December 13, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, FG-19-14-09.

Per curiam.



Submitted November 29, 2010

Before Judges Reisner, Sabatino and Alvarez.

Defendant L.M.E. appeals from a September 11, 2009 order terminating her parental rights to her daughter K.R.E., who was born on October 29, 2003. We affirm, substantially for the reasons set forth in Judge Farber's comprehensive seventy-four page oral opinion issued on September 11, 2009.


The unfortunate facts of this case are set forth at length in Judge Farber's opinion, and need not be repeated here in the same detail. Based on our independent review of the trial record, we outline the most pertinent facts.

L.M.E. has a lengthy and persistent substance abuse problem. She is also bipolar and has a history of abusive relationships with men. Her daughter, K.R.E., was first removed from the custody of L.M.E. and her paramour (who is not the child's father), in 2006. In this incident, the Division of Youth and Family Services (DYFS or Division) was called to the home, where the DYFS case workers found both adults intoxicated. The child had a bruise on her head and told the case workers that the paramour had thrown a cup at her head. After L.M.E. received substance abuse treatment, K.R.E. was returned to her in June 2007. The child was again removed in August when L.M.E. tested positive for alcohol, but was returned to live with her mother in September 2007.

L.M.E. had several relapses of substance abuse, and in February 2008, she was arrested for driving while intoxicated, with a blood alcohol level of .20. At this point, DYFS once again took physical custody of the child. L.M.E. was referred for inpatient drug treatment, but tested positive for opiates in April 2008, and was hospitalized for an opiate overdose in August 2008. At that point, she was also suicidal. In January 2009, L.M.E. was arrested for drug possession. In March 2009, she was again arrested, this time for possession of drug paraphernalia. While the guardianship trial was pending, in June 2009, the police were called to L.M.E.'s home because she was having a physical altercation with her boyfriend. She admitted to the police that she had been drinking.

Since September 2008, K.R.E. has been living with a foster family with whom she has bonded. As the foster father testified at the trial, the foster parents wish to adopt K.R.E., and they are also willing to allow the child to continue having visits with L.M.E. In unrebutted testimony, the State's expert psychologist, Dr. Mark Singer, opined that the child had a bond with both L.M.E. and her foster parents, but L.M.E. was not able to function as the child's parent. The child needed a permanent placement, and had a parent-child bond with her foster family. According to Dr. Singer, they have become her psychological parents. Dr. Singer opined that the child would do best if she were adopted by the foster parents but could continue visitation with L.M.E. The child's counselor, Greg Levine, likewise testified to her need for permanence.

Although relatives came forward at the time of the guardianship trial and offered to adopt K.R.E., their offers came too late.*fn1 By that time she had bonded with her foster parents and would suffer severe and enduring psychological harm if she were separated from them.

After considering each of the four prongs of the best interests test, as set forth in N.J.S.A. 30:4C-15.1(a), Judge Farber concluded that termination of parental rights was in K.R.E.'s best interests.


On this appeal, our review of the trial judge's decision is limited. We must defer to the trial judge's factual determinations so long as they are "'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Further, we owe special deference to the factfinding of family part judges in light of their expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007) (quoting Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

On this appeal, L.M.E. raises the following arguments:


A. The State Failed To Produce Evidence Of Harm To The Child As A Result Of The Parental Relationship Between The Mother And Child.

B. The State Failed To Show By Clear And Convincing Evidence That The Mother Is Unwilling Or Unable To Provide A Safe And Stable Home For The Child.

C. DYFS Failed To Adequately Consider Alternatives To Termination.

D. The Trial Court Erred In Concluding That DYFS Had Demonstrated, By Clear And Convincing Evidence, That The Termination Of The Mother's Parental Rights Would Not Do More Harm Than Good.

Having reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E). In light of the applicable legal standards, we find no basis to disturb Judge Farber's decision, and we affirm substantially for the reasons stated in his thorough and thoughtful opinion. We add the following comments.

Guardianship actions implicate the parents' constitutional rights, as recognized under both the federal and New Jersey constitutions. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008); see also Moriarty v. Bradt, 177 N.J. 84, 101 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). However, "[t]hat fundamental parental right . . . is not without limitation. The State has a basic responsibility, as parens patriae to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102.

In striking a balance between the parents' constitutional rights and the children's fundamental needs, courts engage in the four-part guardianship test articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are 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. 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.

See In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999) (discussing codification). In their application, the four factors above "are not [discrete] and separate but represent an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 285 (App. Div.), certif. denied, 196 N.J. 347 (2008).

As the Supreme Court recognized in N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512 (2004), parents who persist in substance abuse harm their children, and ongoing substance abuse can be a legitimate basis to terminate parental rights. Even at the time of the guardianship trial, L.M.E. was still abusing drugs and was incapable of parenting her daughter. We appreciate that L.M.E. loves her daughter and sincerely wishes to serve as her parent. However, K.R.E. is entitled to a safe, stable and permanent home, which L.M.E. cannot provide.

Further, according to Dr. Singer, even if L.M.E. could successfully complete a drug treatment program, it would take a year of sobriety before she could even be considered for custody of a child. But K.R.E. needs a permanent home now. Unlike the recent case of N.J. Div. of Youth & Family Servs. v. T.S., ___ N.J. Super. ___ (App. Div. 2010), in which the mother had made significant progress in treatment and the child's foster placement had become problematic, K.R.E. has a secure placement with foster parents who are committed to adopting her. Finally, although not legally required to do so, the foster parents are committed to providing K.R.E. with what would appear to be the best possible outcome for her, by allowing the child to maintain contact with L.M.E.


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