February 14, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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.
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 & 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)).
Guardianship actions implicate the parents' constitutional rights, as recognized under both the federal and New Jersey constitutions. Stanley v. Illinois, 405 U.S. 645, 651-52, 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).
On this appeal, L.F. contends that DYFS did not satisfy the second, third and fourth prongs of the best interests test. She bases these arguments on a hiatus in the child's visitation with her; the foster mother's alleged interference with visitation; and an incident from several years ago in which the child made allegations that M. mistreated her. She also contends that termination of parental rights is not necessary because the child will soon turn eighteen and can decide for herself whether she wishes to maintain a relationship with L.F. We find no merit in any of L.F.'s appellate contentions and, except as discussed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Addressing first the allegation that M. once pushed her into a cabinet and called her a "donkey," the child made those allegations shortly after a visit with L.F. However, she later recanted, telling a DYFS worker that she made up the allegations because, at the time, she wanted to live with L.F. And she unequivocally told Judge Harris that she was happy living with M. and wanted M. to adopt her. While we do not condone the late disclosure of the DYFS contact sheets memorializing the allegations and recantation, L.F.'s counsel did not ask to have the State's experts recalled for cross-examination about those documents, and on this record it is highly unlikely that they would have made a difference to their opinions.
We likewise find no merit in L.F.'s contention that there was no benefit to adoption when B.S.F. was almost eighteen, and her related argument that DYFS failed to prove that termination would not do more harm than good. There is substantial credible evidence to support Judge Harris' finding that the child has an overwhelming need to be certain that she has a permanent home. Moreover, according to expert testimony, B.S.F. will need continued assistance with her daily living activities after she turns eighteen and for the rest of her life.
While there was a hiatus in visitation, there is evidence that it came about because the child exhibited behavior problems after visiting with L.F. Moreover, there is no evidence that L.F. sought additional visitation during that time. Nor would additional visitation have changed the outcome in this case.
The unfortunate reality is that no matter how much she loves her child, L.F. will never be able to act as her parent. The foster mother is a very capable parent, and B.S.F. unequivocally expressed her desire to be adopted by her.
Adoption, and the permanency it brings, is in this child's best interests, and we find no basis in the record to disturb Judge Harris' decision.
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