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New Jersey Division of Youth and Family Services v. L.F

February 14, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
L.F.,
DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF B.S.F., MINOR.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-204-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 31, 2011

Before Judges Reisner and Alvarez.

L.F. appeals from a May 12, 2010 order terminating her parental rights to her daughter B.S.F. We affirm, substantially for the reasons stated by Judge Craig R. Harris in an oral opinion placed on the record on May 10, 2010.

I

Having reviewed the record, we conclude that these are the most pertinent facts, and that they are essentially undisputed.

L.F. is developmentally disabled. She has an I.Q. of sixty-seven and has two severe physical developmental disorders: a condition similar to cerebral palsy and grand mal epilepsy. According to unrebutted expert testimony, she is incapable of parenting a child independently and, in particular, she cannot possibly parent a child with special needs.

Her daughter, B.S.F., has even more severe developmental disabilities than L.F., including a form of autism and attention deficit disorder. Although the Division of Youth and Family Services (DYFS) had been providing L.F. with services since 1990, in 1997 her three children, including B.S.F., were placed outside the home, because it was clear that L.F. could not care for them. In 1999, B.S.F. was placed with a foster parent, Ms. M. Recognizing her own limitations, L.F. entered into an identified surrender of B.S.F. to Ms. M., with the expectation that M. would adopt the child. However, after her husband became seriously ill, M. did not feel that she could commit to adoption. As a result, the parties instead entered into a long-term foster placement agreement, an arrangement later prohibited by statute.

The child, who is now seventeen, has lived with M. continuously since 1999 and M. has become her psychological parent. M. has been able to help the child overcome her significant behavioral problems and is providing her with a loving home in which she is happy. Unrebutted expert testimony established that the child has bonded with M., who now wishes to adopt her. While the child loves L.F., she has no parent-child bond with her. Two psychologists testified that a permanent separation from L.F. would cause B.S.F. some sense of loss, but no permanent harm, while separation from M. would inflict serious and enduring trauma from which the child might never recover. Further, in an interview with Judge Harris, B.S.F., through her attorney, expressed her desire to continue living with M. and to be adopted by her, even if it meant that she would not have any more visits with L.F. In reporting the results of the interview, the judge noted that when the issue of possibly living with L.F. was broached, the child became visibly upset and began to shake.

In a lengthy opinion, Judge Harris found that despite "intensive" assistance from DYFS, which the judge described as "beyond anything I've seen in any cases that have been presented to me during my tenure as a Family Court Judge," L.F. remained unable to parent B.S.F. The judge accepted the experts' opinions that the child had a paramount need for permanency and that kinship legal guardianship would not be an adequate substitute for adoption. After reviewing the four prongs of the best interests test, the judge concluded that termination of parental rights was in the child's best interests. Noting that even visitation with L.F. had become traumatic for the child, the judge agreed with DYFS and the Law Guardian that continued visitation pending appeal should not be permitted.

II

On this appeal, we must defer to the trial court's factual determinations "unless 'they are so wholly insupportable as to result in a denial of justice,'" and 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)). 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 ...


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