On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-65-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Messano and Waugh.
Defendant F.M. appeals from a judgment of guardianship terminating her parental rights to her daughter, Q.K.J., born on June 19, 2007, and her son, T.J.J., born on April 20, 2008. A third child, E.J., who was placed in the custody of the Division of Youth and Family Services (DYFS or the Division) following his birth on March 27, 2009, is not a subject of this appeal. The children's father, T.J., did not appeal from a judgment of guardianship dated October 1, 2009, which was entered after default and a proof hearing.
Defendant presents the following arguments for our consideration:
DYFS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT WAS NECESSARY TO TERMINATE F.M.'S PARENTAL RIGHTS IN ORDER TO PROTECT HER CHILD'S BEST INTERESTS.
F.M. WAS NOT AFFORDED A JUDICIAL DETERMINATION OF WHETHER SHE ABUSED OR NEGLECTED HER CHILD UNDER THE (FN) ABUSE AND NEGLECT ACTION AND THEREFORE DYFS NEVER HAD THE AUTHORITY TO SEEK TERMINATION OF PARENTAL RIGHTS AGAINST F.M. PURSUANT TO N.J.S.A. 30:4C-15(c) BECAUSE DYFS NEVER HAD A LEGAL RIGHT TO "CARE OR CUSTODY."
THE TRIAL COURT IMPROPERLY DETERMINED THAT Q.K.J. AND T.J.J.'S HEALTH AND DEVELOPMENT HAVE BEEN OR WILL BE ENDANGERED BY F.M. AND SHOULD BE REVERSED.
THE TRIAL COURT IMPROPERLY DETERMINED THAT F.M. WAS UNWILLING AND UNABLE TO ELIMINATE THE HARM TO Q.K.J. AND T.J.J.
DYFS DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO REUNITE Q.K.J. AND T.J.J. WITH F.M., NOR DID THE COURT CONSIDER ALTERNATIVES TO TERMINATION.
[DYFS] DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT MORE HARM THAN GOOD WOULD BEFALL Q.K.J. AND T.J.J. IF F.M.'S PARENTAL RIGHTS WERE TERMINATED.
We conclude from our examination of the record and applicable law that the trial court applied the correct legal principles and its factual findings and conclusions are adequately supported by clear and convincing evidence. We therefore affirm with the following comments.
"The right of a parent to raise a child and maintain a relationship with that child, without undue interference by the state, is protected by the Unites States and New Jersey Constitutions." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). Moreover, "[t]he Legislature has declared that '[t]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare.'" K.H.O., supra, 161 N.J. at 347 (second alteration in original) (quoting N.J.S.A. 30:4C-1(a)).
Parental rights are not absolute, however. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). "The State has a basic responsibility . . . to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102 (citing K.H.O., supra, 161 N.J. at 347); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) ("The State has a responsibility to protect the welfare of children and may terminate parental rights if the child is at risk of serious physical or emotional harm.") (citing Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979)). Furthermore, the Legislature has declared that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a).
"The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. Under that test, termination is not appropriate unless the Division satisfies each of the following four statutory factors by clear and convincing evidence:
(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-15.1(a).]
These four requirements "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. The considerations involved are extremely fact sensitive and require particularized evidence that addresses the specific circumstances present in each case. Ibid.
Our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "[F]indings by [a] trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. Deference is not appropriate, however, if the trial court's findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).
In this case, F.M. became pregnant with her first child, Q.K.J., at the age of seventeen. F.M. had dropped out of school a year and a half before becoming pregnant and resided with B.M., her aunt and legal guardian. At the time of the pregnancy, F.M. was in a relationship with the child's father, T.J., who was twenty-eight years old. T.J. lived in the house immediately behind B.M.'s.
Approximately five months after Q.K.J.'s birth, November 9, 2007, the Paterson Police responded to an incident of domestic violence at B.M.'s house. According to the police report:
[F.M.] . . . related that her boyfriend [T.J.] came home [that] evening and began to argue with her. [F.M.] related that she contact[ed] the police prior to the incident escalating and becoming physical. [F.M.] further related that for the past several days [T.J.] [had] been physically controlling specifically by assaulting her with his hands about the face and mouth causing minor injuries (laceration) to the inside lip area. The victim refused medical treatment at the time since the incident (assault) took place [a] few days ago.
F.M. provided the police with a written statement indicating that T.J. "put his hand on me and bust my lip twice. Today he just continued to argue with me."
The Paterson Police referred the domestic violence incident to the Division and the matter was investigated by Elvia Ortiz (Ortiz) on November 16, 2007. F.M. informed Oritz that T.J. had been on ecstasy and acted "very erratic." In addition, T.J. told Ortiz that he "went to [St.] Joseph's Hospital in October 2007 and was diagnosed with schizophrenia and bipolar disorder." Oritz concluded that T.J.'s unmedicated mental illness was a risk to the family and that the family was in need of services.
Oritz determined that Q.K.J. was not present when the domestic violence occurred, precluding a finding of neglect. However, the Division nonetheless prepared a case plan with recommendations: T.J. was not allowed in B.M.'s home until the Division could further assess his risk to Q.K.J.; T.J. was barred ...