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In the Matter of the Guardianship of R.S., Jr., A Minor. v. K.P


February 4, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-75-09.

Per curiam.



Telephonically argued January 18, 2011

Before Judges Lisa and Alvarez.

Defendant, K.P., appeals from the February 4, 2010 order of guardianship terminating her parental rights to her son, R.S., Jr., born on August 26, 2007. The parental rights of the child's father, R.S., were also terminated in that proceeding, but he has not 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 establishing all four prongs of the best interests of the child test. The Law Guardian supported termination in the trial court and, on appeal, joins the Division in urging us to affirm. We are satisfied from our review of the record that the Division presented sufficient evidence to support Judge John A. Conte's finding that all four prongs were clearly and convincingly established. We therefore affirm.


When R.S., Jr. was born, K.P. was twenty-four years old, and R.S. was seventeen years old. K.P. had two daughters at that time, B.W., born on April 11, 2002 and H.W., born on April 30, 2004, who were in her custody at the time of R.S., Jr.'s birth. The custodial status of B.W. and H.W. changed from time to time during the course of events involved in this case. Since March 2009, they have been in the custody of their biological father, S.W. As we will discuss in more detail, defendant gave birth to a fourth child, A.S., on March 6, 2009. R.S. is the father of A.S., who is now the subject of a guardianship proceeding scheduled for trial in March of this year in Bergen County.

R.S., Jr., has lived with the same foster family since January 10, 2008. He is doing very well in that home, and his foster parents wish to adopt him. His younger sister, A.S., has also been placed in that same foster home.

DYFS first became involved with defendant in June 2007, when her daughters' daycare center reported that the girls frequently displayed poor hygiene and cleanliness, had no spare diapers, and were provided with little food to sustain them throughout the day. The Division's initial investigation of defendant's household found the conditions appropriate. However, DYFS was unable to locate K.P. until June 26, 2007 because the information she had provided the daycare center was invalid. As part of its investigation, DYFS discovered from the Saddle Brook Police Department that there were eleven reports of domestic violence involving defendant and R.S. between October 1, 2006 and June 28, 2007.

DYFS learned from these domestic violence reports about the various incidents underlying them. For example, on October 1, 2006, defendant reported to the police that when she returned to her apartment after attending a party on the prior evening, R.S. was hiding in a closet in her home and threatened her with a knife. She alleged that R.S. raped her at knife point that night as he had also done on September 29. On November 19, 2006, defendant reported to the police that R.S. raped her again on the previous evening. Defendant later reported that this sexual assault caused her pregnancy with R.S., Jr. On another occasion, in December 2006, R.S. kicked in the door to defendant's apartment to gain entry. A similar incident occurred in January 2007, in which R.S. climbed in a bedroom window. He then disconnected the telephone from the wall when defendant was attempting to report the incident to the police. On March 4, 2007, R.S. violated a temporary restraining order that had been issued on February 17, 2007, when he forced his way into defendant's apartment and assaulted her. Defendant was pregnant at the time. R.S. reportedly pulled her hair, banged her head against the wall, and caused a visible injury to her lip. Defendant filed an incident report the next day, and reported that R.S. had sexually assaulted her in the course of the physical assault.

The Division referred defendant and R.S. to Heather Diamond, a licensed clinical social worker, for a risk assessment, which was conducted on July 19 and 25, 2007. Diamond administered several psychological tests and interviewed defendant. She concluded defendant was "an immature, irresponsible, histrionic, dependent and manipulative parent who prioritizes her own needs over the needs of her children." She noted defendant's history of failing to protect herself from R.S. She observed that although defendant separated herself from R.S. many times, she always "capitulates, reconciles, and continues to place herself in danger." She opined that defendant likely perceived "[R.S.]'s obsessive and abusive behavior as loving and that it me[t] her needs for attention and feeling special." Results of the psychological tests revealed that defendant was impulsive, dramatic, and sought instant gratification irrespective of the potential consequences.

Defendant scored poorly on the adult adolescent parenting inventory-2 (AAPI-2), scoring below average in four of the five areas of parenting known to contribute to child abuse and neglect. In the category of "expectations," defendant's low score indicated a misunderstanding of her children's needs and her expectation that the children were more developmentally capable than they actually were. In the area of "empathy," defendant demonstrated a lack of nurturing skills because she did not believe her children needed much by way of parental guidance and support. In the "family roles" category, defendant demonstrated characteristics indicating a parent-child relationship in which the child, in part, becomes the parent's caretaker, responsible for making the parent happy. In this scenario, the child is viewed as an object for the adult's gratification, rather than as an individual with his or her own needs. In "power and independence," defendant's low score indicated that she viewed her children's natural tendency to strive for competence and independence as threatening. Rather than facilitating her children's self-esteem and confidence, defendant tended to deliberately inhibit their healthy emotional development.

Defendant's score on the child abuse potential inventory (CAPI) did not indicate that she was prone to physical child abuse. However, Diamond opined that K.P.'s elevated scores in the "lie" and "faking good" indices suggested that the results of the CAPI may have been inaccurate.

Diamond's assessment of R.S. also showed poor results. Because R.S. is not involved in this appeal, we need not describe the results in detail. It is sufficient to note that he, like defendant, did not exhibit appropriate parenting capabilities. Diamond recommended that defendant and R.S. attend alternatives to domestic violence (ADV) therapy, parenting classes, and individual psychotherapy.

In August 2007, DYFS learned that defendant gave birth to R.S., Jr. DYFS also learned that defendant had recently moved to the same town in which R.S. lived. On September 5, 2007, DYFS initiated a Title Nine proceeding. Defendant retained physical custody of her three children, under the supervision of DYFS. The court ordered defendant and R.S. to attend ADV, parenting classes, and psychotherapy. R.S. was required to undergo a substance abuse evaluation, and defendant was ordered to cooperate with homemaker services and to participate in Families First. Subsequently, the Division followed up and referred defendant and R.S. to Epic Parenting Group.

Over the next two months, R.S, did not perform well in the substance abuse assessment and treatment programs to which DYFS referred him. He repeatedly tested positive for illegal substances and was noncompliant with treatment services. Because of his noncompliance, he was discharged from the treatment center.

R.S. also continued in his violent behavior. An incident occurred in Lodi on September 26, 2007 that resulted in police involvement. Defendant was parked in a car at a gas station, in which S.W., the father of her older children, was sitting in the front seat, and defendant's three children were in the back seat. R.S. saw this. He approached the vehicle, reached in and began hitting S.W. Defendant began to drive away. R.S. followed and was kicking at the vehicle. Rather than drive out of the area to assure the safety of the children, defendant pulled over and got out of the vehicle to assess any possible damage. R.S. again reached into the car, this time stealing defendant's cell phone. Defendant refused to seek a restraining order against R.S.

On October 9, 2007, R.S.'s mother called DYFS and reported that her son and defendant had spent the prior five days together in a motel smoking marijuana. She said defendant had left her three children with her twin sister, who also had a history with DYFS because of questionable parenting skills. A Division caseworker went to defendant's home. Defendant was not there. S.W. was there and said he was caring for the children, but he had no way of contacting defendant. S.W. said he had been with the children all weekend. He said defendant was away each day, but returned home to sleep at night.

The caseworker spoke to B.W., who was then five years old. B.W. said she had not seen R.S. since the gas station incident. She said she was afraid of R.S., who used to grab her hand really hard. She also acknowledged that her mother had left the home the prior night and was often not home.

On October 9, 2007, defendant told the caseworker she had been at a girlfriend's apartment over the weekend, and the girlfriend was urging defendant to move in with her. Defendant said she had been traveling back and forth between apartments to check on the children. She admitted she had spent that Saturday night with R.S. at a motel. However, she denied using drugs or alcohol. Defendant also admitted she had just visited R.S. that day, for the purpose of collecting child support from him.

The next day, October 10, 2007, the Division conducted an intake referral, interviewing defendant, R.S. and S.W., in an effort to determine who was caring for the children over the prior weekend. Defendant contradicted her earlier statements. She said she had been at a friend's house that Sunday for a barbeque and stayed the night because the friend lived far from her home. She denied staying with R.S. in a motel on Saturday, and claimed she charged the room on her credit card to "help him out." R.S.'s version of the events did not corroborate defendant's. He claimed he had not seen defendant for the last week, contending the last time he had seen her was at the DYFS offices when he was visiting R.S., Jr. R.S. also denied being present or causing any damage in the gas station incident. R.S. stated that he was not in a relationship with defendant at that time.

Because of these events and the conflicting information provided by the parties, the Division conducted an emergency removal of all three children on October 10, 2007. At a hearing on October 11, 2007, the court awarded custody to DYFS, finding that removal was necessary due to the imminent danger to the children's well-being. The court directed defendant and R.S. to attend ADV, continue individual counseling, complete regular drug screenings, and participate in family preservation services as well as the Care Plus NJ parent child supervised visitation program. The children were placed in foster care.

On October 23, 2007, the court granted defendant and R.S. weekly supervised visitation rights, but restricted R.S. from visiting defendant's home. Defendant and R.S. completed the parents empowerment academy training program in December 2007. Although they completed the program, this did not indicate either parent's "readiness to parent."

At a court hearing on December 20, 2007, defendant, represented by counsel, admitted that her children were removed from her custody on October 10, 2007 because her inadequate care placed them at risk of harm. After reviewing the Division's December 13, 2007 report, the court ordered that physical custody remain with DYFS. The court also ordered that defendant and R.S. attend ADV and individual psychotherapy. Supervised visitation was continued, as was the restriction against R.S. visiting defendant's home. Finally, the court ordered the Division to arrange an interstate evaluation of defendant's mother as a possible caretaker. Her mother lived in Georgia with her sixteen-year-old daughter. After conducting the evaluation, the Division found that defendant's mother would not be a suitable caretaker and issued a rule-out letter. There is no indication in the record that defendant's mother appealed that determination.

On March 7, 2008, the court granted defendant legal and physical custody of her two older daughters, B.W. and H.W., based upon her completion of twelve of the twenty-six required ADV sessions and her regular attendance at individual therapy. The judge ordered that DYFS retain supervision over B.W. and H.W., and that R.S., Jr. was to remain in the Division's legal and physical custody. The plan was to allow defendant to develop a routine with the two older children and then regain custody of R.S., Jr. after about a month, if all went well. DYFS sent a referral for family preservation services to assist defendant in her home. A condition of the reunification was that R.S. was not allowed in defendant's home.

In a compliance review on March 20, 2008, the court reaffirmed the custody orders as to all three children. The court added a provision allowing defendant unsupervised visits with R.S., Jr. for no longer than two hours on a weekly basis.

During this time, R.S. was noncompliant with therapy and drug treatment. He was discharged from his treatment program for noncompliance on March 28, 2008.

On April 4, 2008, Division caseworker Yocasta Garcia made an unannounced visit to defendant's residence. She found R.S. present. Although Garcia asked R.S. to remain, he left. Garcia questioned defendant regarding a recent police report in which defendant had charged R.S. with making terroristic threats. According to the report, R.S. asked defendant for cigarette money and reached in her purse. Defendant refused, saying she could not afford to give him money. R.S. responded by calling defendant a vulgar name and telling her to "watch out" because he was "going to light [her] house on fire and blow up [her] car." R.S. was arrested, but defendant promptly posted his bail, resulting in his release.

Defendant claimed that R.S. visited her home on April 4, 2008 to gather his belongings. However, upon leaving the apartment, Garcia said R.S. was empty-handed. Upon inspection of defendant's apartment, Garcia observed men's boots and men's clothing in defendant's bedroom. The apartment was in a dirty and disheveled condition. However, the children's rooms were appropriate, and there was sufficient food in the apartment.

As a result of these events, the Division devised a "safety plan" for defendant. DYFS placed a homemaker at the residence for the weekend and enlisted defendant's father to assist her over the weekend. Her father later indicated that he could not provide long-term continuous care for the children.

In April 2008, the Division received reports from B.W.'s school and H.W.'s daycare center indicating frequent tardiness and poor hygiene. Division workers met with defendant on April 7, 2008 to discuss these problems. In the course of the discussion, defendant denied having ongoing contact with R.S., claiming she only contacted him for money. On that day, the Division effected an emergency removal of B.W. and H.W. The Division justified the removal because defendant allowed R.S. into her home, put herself in a situation that led to the domestic violence incident of April 1, 2008, and then bailed R.S. out of jail for that incident.

At subsequent hearings on April 17 and October 2, 2008, the court continued physical custody of all three children with the Division. Defendant failed to appear at the former of those hearings; R.S. failed to appear at either. Defendant and R.S. were still allowed weekly supervised visitation with their respective children, and they were both instructed to continue with ADV and individual psychotherapy. Both parents were instructed to attend counseling at the Audrey Hepburn Children's House (AHCH).

Defendant began therapy at AHCH on June 9, 2008. A July 14, 2008 progress report stated that defendant continued to deny she exposed her three children to violence by R.S. or that she allowed him into her home in violation of a court order. Defendant minimized her earlier claims that R.S. had raped her on several occasions and assaulted her. She denied having feelings for R.S., but appeared to be emotionally attached to him. The report recommended continued therapy at AHCH and recommended against reunification with her children.

In June and July 2008, defendant told Garcia that she no longer desired to be involved with either R.S. or S.W. During the same time, R.S. said he wanted to remain involved with defendant. In his view, his relationship with defendant had no bearing on her ability to raise her children.

Defendant's assertions again proved to be untrue. Garcia visited defendant's apartment unannounced on July 29, 2008, only to find R.S. inside. Defendant said she was then two months pregnant with her fourth child and R.S. stated he was the father, which a paternity test later confirmed. Although defendant then admitted that R.S. was the father, she later denied it.

The Division referred defendant to Diamond for reevaluation on August 7, 2008, because of its concern that after a year of therapy defendant still failed to understand the "severity of her continued relationship with [R.S.]."

A September 22, 2008 AHCH progress report revealed that defendant missed five of ten scheduled sessions with her social worker, Eleanor Stucker. The report said that defendant continued to "minimize the allegations that she exposed her children to domestic violence and was neglectful in their everyday care." During a therapy session, defendant claimed that R.S. was not the father of her fourth child, contradicting what she had told Garcia. The report concluded that defendant was "an immature and irresponsible woman who [was] more concerned about maintaining her relationship with [R.S.] than reunification with her children."

An AHCH progress report dated November 20, 2008 revealed that defendant admitted she loved R.S. even though he had physically and sexually assaulted her. The report stated that defendant missed half of her scheduled sessions and made no progress in treatment. The report also noted that defendant was unable to afford her car, she had been incarcerated for failing to pay parking tickets and child support payments, and she was unable to maintain steady employment. She had also moved several times over a relatively short time frame.

On October 2, 2008, a permanency order was issued, reflecting the Division's plan for termination of parental rights followed by adoption of R.S., Jr.

In a February 17, 2009 report, AHCH recommended defendant's termination from treatment because she had shown no improvement over the past two years in her parenting abilities and remained unwilling to acknowledge the volatility of her relationship with R.S. The report noted that defendant was resistant to treatment. At her February 3, 2009 session, defendant appeared to be eight months pregnant, but attempted to hide the pregnancy by wearing a rain coat and refusing to discuss the pregnancy, prenatal care, or where she planned to deliver the baby.

At her scheduled reevaluation with Diamond, defendant attended only a part of the session and then left. In all, defendant missed six of thirteen scheduled sessions. At a case management hearing on February 26, 2009, defendant continued to attempt to deny her pregnancy. She finally admitted it when the judge advised her she would be held in contempt.

Defendant gave birth to A.S. in White Plains, New York. She told representatives of New York child protective services and hospital personnel that she did not know where she would go upon being discharged. She then said she would probably stay with her father in Connecticut. However, her father said she had never discussed any such plans with him and "he would prefer not to get involved." Defendant left the hospital without fully completing the birth certificate, including the baby's name or the name of the father. On March 12, 2009, DYFS was granted custody of A.S., and defendant was ordered to have supervised visits with the child.

Diamond issued an updated report on June 23, 2009. She found that defendant continued to present herself as an irresponsible, immature, dependent parent who prioritized her needs over those of her children. Despite her completion of parenting training, defendant's test results continued to show "significant deficits with respect to parenting knowledge." She tended to "perceive children as objects for adult gratification" and "there to meet her own needs." Defendant admitted to Diamond that she felt she had abandoned her children to be with R.S. However, she denied meeting with DYFS in August 2008 and denied telling Garcia she wanted to be in a relationship with R.S. Defendant claimed she met with Garcia in July 2008 and ended her relationship with R.S. the same day. Defendant admitted to bailing R.S. out of jail, but claimed it was her intention that R.S. would return to his own home. She denied that the men's boots and clothing observed in her apartment belonged to R.S., and she claimed she had lied about being raped by R.S. on three separate occasions. She now said he had only raped her once. Diamond concluded that even if defendant ended her relationship with R.S., "the underlying emotional dynamics that attracted her to him [were] likely to lead her to another unhealthy and problematic relationship."

During this time, R.S. continued to be noncompliant with services for which he was referred. He continued to test positive for illegal substances. His whereabouts were unknown to the Division for some periods of time.

The Division directed both parents to undergo psychological and bonding evaluations, to be performed by Dr. Robert Kanen, a psychologist. The bonding evaluation between defendant and R.S., Jr. was conducted on April 7, 2009. Defendant was interactive with and attentive to R.S., Jr., but the child never referred to her as mother, nor did he appear any more comfortable with her than with Dr. Kanen. When Dr. Kanen asked defendant to leave the room, R.S., Jr. did not display any anxiety or distress. Her re-entry went unnoticed by R.S., Jr.

Dr. Kanen concluded that R.S., Jr. was "not strongly attached to the biological mother and would not suffer serious and enduring harm if not allowed to have a continued relationship with her." Dr. Kanen acknowledged that it would be difficult for an attachment bond to form based on only one hour of visitation per week.

Dr. Kanen also conducted a psychological evaluation of defendant on April 7, 2009. He concluded that she would be unable to manage R.S., Jr.'s behavioral issues. The child is "very active and has a temper" and he has engaged in "head banging." Dr. Kanen also concluded that defendant would be unable to provide R.S., Jr. with a safe environment. He opined that her "self-centeredness raise[d] concerns about her capacity to place her children's needs ahead of her own." At trial, he testified to his concerns about defendant's ability to administer consistent and reliable care, especially because R.S., Jr.'s emotional issues were incompatible with her self-centeredness. He noted the "ongoing risk of [defendant] being involved with abusive men" who would expose her children to the psychologically damaging effects of domestic violence.

Dr. Kanen's assessment of R.S. was also negative. Likewise, the bonding evaluation with R.S. revealed no close bond. Because R.S. is not a party to this appeal, we need say no more in that regard.

After her psychological and bonding evaluation, defendant continued in her therapy with Stucker at AHCH. Defendant told Stucker that S.W. used to rape her during the course of their relationship. When asked why she would allow her two daughters to remain with S.W. if this was true, defendant said she did not want S.W. to get into trouble. When Stucker asked defendant if she thought S.W. would hurt her daughters, defendant responded confidently that he would not.

On October 26, 2009, AHCH advised the Division that defendant's treatment was being terminated. The agency reported that defendant's therapy had "deteriorated" since the last progress report of August 8, 2009. The agency noted that "defendant's victimization as reported previously suggest[ed] that she fails to act in a self-protective manner; as she continues to make allegations without appropriate follow through." The report concluded that defendant "would be ineffective in protecting her own children."

Dr. Kanen also administered a bonding evaluation between R.S., Jr. and his foster parents on May 5, 2009. He reported that the foster parents were "very permanent, competent, and nurturing caregivers," who were aware of the child's developmental needs and knew how to manage his behavior. They dealt effectively with R.S., Jr.'s tantrums and had installed safety locks and sensor alarms on all of the home's doors and a safety tent over his crib to deter unwanted behavior. Further, R.S., Jr. appeared to be "securely attached and bonded to the foster parents." He reacted positively to their physical affection. When they were asked to leave the room, R.S., Jr. noticed their departure and followed after them. He cried, screamed and yelled when separated from the foster parents for visitation with defendant. Dr. Kanen opined that R.S., Jr. would "suffer serious and enduring harm" if he were removed from his foster parents and returned to defendant, and that he had a higher risk of emotional and behavioral problems with defendant. Dr. Kanen determined that R.S., Jr. was well integrated into his foster family, and he noted their desire to adopt him.

Judge Conte conducted the trial over four days beginning on October 26, 2009, and concluding on December 2, 2009. The Division presented the testimony of Dr. Kanen, Diamond, Garcia, Stucker, and Maria DeVargas, an adoption specialist. The Division also entered into evidence numerous documents, reports and records. Defendant did not testify and did not present any evidence.

On February 4, 2010, Judge Conte issued a comprehensive forty-two-page written decision. He recounted the evidence and made specific findings as to all four prongs. He found that the Division had proven all four prongs by clear and convincing evidence. Accordingly, he ordered that the rights of both parents be terminated. He entered the final judgment of guardianship on the same date.


Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). However, 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). Even though "[a] parent's right to enjoy a relationship with his or her child is constitutionally protected," id. at 346, this right is not absolute. In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). The State has the responsibility to protect minor children from serious physical or emotional harm. A.W., supra, 103 N.J. at 599. This responsibility, in some cases, requires that the parent-child relationship be severed. Ibid. In termination cases, the State must present sufficient evidence to show that the "best interests" of the child will be substantially prejudiced absent a termination of parental rights. A.W., supra, 103 N.J. at 603 (quoting In re Guardianship of Cope, 106 N.J. Super. 336, 341 (App. Div. 1969)).

In evaluating the best interests of the child, courts follow a four prong standard, codified in N.J.S.A. 30:4C-15.1(a). This standard allows for termination when the State proves, by clear and convincing evidence, that:

(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).]

"The four criteria 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 of parental rights permanently cuts off the relationship between children and their biological parents." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). When the biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise their children without causing them further harm. Ibid. "The burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." Ibid.

The Supreme Court has recognized that children have a "paramount need" for "permanent and defined parent-child relationships." Id. at 26. There are "strong policy considerations that underscore the need to secure permanency and stability for the child without undue delay." In re Guardianship of D.M.H., 161 N.J. 365, 385 (1999).

The scope of this court's review of the findings of fact made by a trial judge in family cases is limited. N.J. Div. Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007). We afford deference to a trial court's findings of fact because the trial court "has the opportunity to make first-hand credibility judgments about witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Such deference is afforded unless it is determined that the trial judge "went 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). Therefore, when the trial court's findings of fact are "supported by adequate, substantial and credible evidence," these findings are "binding on appeal." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). 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, 413 (1998).

"A child is not chattel in which a parent has an untempered property right." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 110 (App. Div.), certif. denied, 180 N.J. 456 (2004). Children must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement. Id. at 111. "A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." Ibid.


Applying these principles, our review of the record satisfies us that the judge's finding that the Division clearly and convincingly proved all four prongs of the best interests test is supported by substantial credible evidence.

Defendant argues that the first prong was not satisfied because of assumed emotional harm to R.S., Jr. without any direct proof. Defendant argues there was no proof that R.S., Jr. was personally exposed to domestic violence incidents. Defendant further argues, relying on New Jersey Division of Youth and Family Services v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), that the Division failed to refer to any specific emotional injury to R.S., Jr. Defendant contends that Dr. Kanen never linked R.S., Jr.'s exposure to domestic violence or deficient parenting by her as the cause for R.S., Jr.'s temper or his head banging during tantrums.

To satisfy the first prong, the State must show a harm that threatened the child's health and that will likely have continuing deleterious effects on the child. K.H.O., supra, 161 N.J. at 348. "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid. The absence of physical abuse or neglect is not conclusive; the court also must consider the potential for serious psychological damage. A.W., supra, 103 N.J. at 605; N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002); In re Guardianship of R.G., 155 N.J. Super. 186, 194 (App. Div. 1977). The "relevant inquiry focuses on the cumulative effect, over time, of harms arising from the home life provided by the parent." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 289 (2007).

In cases where termination of parental rights is based on the potential harm to the child, harm may be evidenced by the negative effects of separating the child from the foster family. J.C., supra, 129 N.J. at 18. Such a potential for serious emotional injury is regarded as constituting injury to the child in these cases. A.W., supra, 103 N.J. at 605. "The potential return of a child to a parent may be so injurious that it would bar such an alternative." Ibid. This is true even though the natural parent is blameless in the loss of custody of the child and would be a good parent. In re Guardianship of J.E.D., 217 N.J. Super. 1, 16 (App. Div. 1987), certif. denied, 111 N.J. 637 (1988). In this type of case, the potential harm must be "serious and enduring." J.C., supra, 129 N.J. 19. "Such proof should include the testimony of a well qualified expert who had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with the foster parent." Ibid.

We first note that the evidence does reveal that R.S., Jr. was exposed to at least one violent episode, the gas station incident. Further, the evidence revealed that many of the domestic violence incidents perpetrated by R.S. against defendant prior to R.S., Jr.'s birth occurred in the presence of defendant's two older daughters. By persisting in this volatile and violent relationship with R.S., the evidence clearly established that defendant engaged in a course of conduct over an extended period of time that placed R.S., Jr. at risk to his safety. Likewise, defendant's erratic and unstable lifestyle also created a serious risk of harm to R.S., Jr.

As to the second prong, defendant argues that the judge erred in finding that she is not willing and able to eliminate the harm facing R.S., Jr. She argues that any causes for concern about harm to R.S., Jr. had been alleviated because she ended her relationship with R.S. and there was no evidence that she subsequently engaged in another relationship with domestic violence issues. She further argues that she participated in parenting programs and evidence of her appropriate interaction with her children during visitation showed she was a competent parent.

The second prong is aimed at "determining whether the parent has cured or overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child," or alternatively, that "the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49. "[T]he second prong may be met by indications of parental dereliction and irresponsibility, such as . . . the inability to provide a stable and protective home[.]" Id. at 353. The first and second prongs are related to one another, and evidence that supports one may support the other. D.M.H., supra, 161 N.J. at 379.

The evidence amply establishes that defendant could not provide a safe and stable home for R.S., Jr. and that she was otherwise unable or unwilling to overcome the harms that faced R.S., Jr. Therapy progress reports and expert testimony refute defendant's contention that her home situation was safe and stable. She moved from place to place, had periods of unemployment, was unable to keep her car, was incarcerated for unpaid parking tickets and child support obligations, and was driving on a suspended license. Defendant exhibited a repeated tendency to lie about her relationship with R.S., even after her children were removed from her custody. Division workers found R.S. at defendant's residence twice in 2008 during unannounced visits, in violation of a court order. Although defendant told caseworkers she ended her relationship with R.S., she later was found to be pregnant with his child, A.S. Thus, even though her children had been removed from her custody, defendant chose to continue her relationship with R.S. and later had a second child by him.

Her progress in therapy deteriorated and was terminated by late 2009. Therefore, although services were provided, they did not achieve the desired result. Defendant's continued denials and minimization of the underlying problems and her continued misrepresentations about past events did not bode well in enabling her to confront and correct those problems.

Further, there was no evidence to demonstrate that in the reasonably foreseeable future defendant's circumstances would change or that her ability to parent R.S., Jr. would reach a satisfactory level. Additional delay would continue to add to the harm that would occur by removing R.S., Jr. from his foster home.

Defendant argues that the third prong was not established because the Division failed to provide her reasonable services. She points out that when B.W. and H.W. were returned to her custody in March 2008, the Division was supposed to provide assistance in the home to help with the transition, but it failed to do so. She further argues that supervised visits of one hour per week were not sufficient to provide her the opportunity to develop a meaningful bond with R.S., Jr.

The third element of the statutory test "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. "Reasonable efforts," as defined in N.J.S.A. 30:4C-15.1(c), include but are not limited to: 1) consulting and cooperating with the parent in developing a plan for appropriate services; 2) providing services to the family that have been agreed upon, 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. An evaluation of efforts undertaken by DYFS to reunite a particular family must be done on an individualized basis. D.M.H., supra, 161 N.J. at 390. "Whether particular services are necessary in order to comply with the diligent efforts requirement must therefore be decided with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort." Ibid. DYFS's efforts are not measured by their success. Id. at 393.

We are satisfied that the Division continually provided defendant (as well as R.S. and S.W.) access to services designed to support reunification. Defendant was referred to multiple sources for evaluations and appropriate therapy. This included at least two parenting programs as well as ADV therapy. She was further referred for individual psychotherapy, which was only terminated in late 2009 due to her lack of progress over the previous two years of treatment.

We find unpersuasive defendant's reliance on the Division's failure to provide an in-house family preservation service during the brief period she regained custody of B.W. and H.W. in 2008. The Division claimed it made the referral, but the services did not begin, for whatever reason, prior to the children being removed a month later. This circumstance did not constitute a failure by the Division to make reasonable efforts to help the parent overcome obstacles to reunification. The Division's constant intervention and referrals for services are not outweighed by this one instance where services that may have helped in reunification failed to occur for a one-month period. We must look at the totality of the circumstances over the extended relevant time period.

As to the inadequacy of the visitation alleged by defendant, we again view this in the context of the many and varied services provided by the Division to assist in the reunification effort. Again, a court should not view in isolation one aspect of the services provided. Overall, we cannot say that the trial judge erred in finding that the Division made reasonable efforts in this case in satisfaction of the third prong.

Finally, defendant argues that the Division failed to prove by clear and convincing evidence that the fourth prong was satisfied. She argues that the court erred by relying on Dr. Kanen's opinion that the child was more bonded to foster parents than his biological parents.

DYFS must show that the termination of parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The question under this prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4)." Id. at 363. "Inherent in the fourth factor is that a child has a 'paramount need for a permanent and defined parent-child relationship' . . . as well as a deep need for a nurturing adult, commonly termed the 'psychological parent'" C.S., supra, 367 N.J. Super. at 119 (quoting J.C., supra, 129 N.J. at 26).

The court had before it substantial, credible evidence that termination of defendant's parental rights would not do more harm than good. Dr. Kanen's unrebutted expert testimony, which the judge found credible, established that R.S., Jr. had developed a close bond with his foster parents and that he viewed them as his psychological parents. The evidence further established that the foster parents provided competent, nurturing support to R.S., Jr. Their home is basically the only home R.S., Jr. has known. He has not lived with his mother at any time since his initial removal when he was six weeks old.

He has now been with his foster family continuously for three years and is well adjusted.

The unrefuted evidence clearly established that R.S., Jr.'s removal from his foster parents would cause him to suffer serious and enduring harm. And, his foster parents intend to adopt R.S., Jr. On the contrary, the evidence clearly established that R.S., Jr. has no strong attachment to defendant and he would not suffer serious and enduring harm if his relationship with her was severed. The fourth prong was firmly established.



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