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Division of Youth and Family Services v. T.A.W


April 27, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-103-09.

Per curiam.



Argued March 9, 2011

Before Judges Fuentes, Ashrafi and Nugent.

Defendant T.A.W., a developmentally disabled mother of three children, appeals from the judgment of the Chancery Division, Family Part, terminating her parental rights so that her two younger children, now ages five and four, can be adopted by their paternal grandmother. We affirm.

Defendant's oldest child, who has a different father, is not the subject of this case and is currently in the care of relatives. Defendant and the Law Guardian for the two younger children contend on appeal that the family court's judgment should be reversed because the court erred in its evaluation of the evidence presented at trial. They argue the evidence did not satisfy the four criteria required by N.J.S.A. 30:4C-15.1a for termination of defendant's parental rights.

We affirm essentially for the reasons stated in the cogent written opinion of Judge Octavia Melendez filed on November 6, 2009. The judge carefully considered the evidence as it applies to the criteria of the statute and concluded by the clear and convincing standard of proof that it is in the best interests of the children to proceed to adoption. Substantial credible evidence in the record supports the court's findings of fact and the conclusions of law based on those findings. We add only the following comments to address directly some specific arguments made by defendant and the Law Guardian.

We do not sit as a court weighing the evidence to make an initial decision. A reviewing court must defer to the family court's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). We also defer to the trial court's assessment of expert evaluations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).

Deference is accorded because the trial court had the opportunity to "make first-hand credibility judgments" and to gain a "feel of the case" over time, thus supporting a level of factual familiarity that cannot be duplicated by an appellate court reviewing a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). In E.P., the Supreme Court said: "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." Ibid.; accord In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605). The family court's conclusions in this case were not wide of the mark but well-supported by the extensive record the Division of Youth and Family Services (DYFS) presented to demonstrate that defendant's parental rights should be terminated in the best interests of these children.

To summarize the case briefly, DYFS had a long history of contacts with defendant because of her inability to care for any of her three children. The first referral was in 2000 when the defendant's older daughter was born and hospital personnel were concerned for the welfare of the baby because of defendant's mental limitations. Referrals to DYFS continued until November 2007, when the last of five removals of all three children occurred because defendant was homeless in the street with them.

Without recounting the history as to the older daughter, we note that defendant's abuse or neglect of that child can be considered in assessing whether defendant has also harmed the two younger children. See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.), certif. denied, 192 N.J. 68 (2007); Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002); see also N.J.S.A. 9:6-8.46a (evidence as to other children admissible in abuse or neglect case).

The father of the two younger children has voluntarily surrendered his parental rights. The paternal grandmother has been caring for the children since March 2008, and, by the accounts of all professionals who evaluated the children and testified at trial or provided written reports, the children have been thriving in their grandmother's care.

On the other hand, defendant has never been capable of providing a safe home for her children. DYFS investigations repeatedly found defendant's home in a deplorable condition of filth and squalor, with open containers of decaying food, scattered trash and personal belongings, dirty diapers, dog feces, and general disarray. In addition, over the years DYFS offered many types of services to improve defendant's homemaking and parenting skills, but the programs that were attempted reported they had reached maximum benefit for defendant without the prospect that she would become capable of caring for her children. The trial court listed thirteen programs or types of assistance that DYFS had provided to defendant without significantly advancing her ability to provide a stable, safe home for these children.

The Law Guardian's brief adopts a narrow view of the evidence and argues obdurately that defendant never harmed the children and that her disability, if any, should not be a ground for discriminating against her in the exercise of her constitutionally protected parental rights. These arguments seem suited for advocacy on behalf of defendant rather than the children's best interests. The Law Guardian's brief and oral argument never mentioned the children's needs for an acceptable living environment, proper hygiene, and basic parental care and supervision.

At the trial, the Law Guardian presented testimony of a witness from the State Division of Developmental Disability regarding some late progress in that agency's providing services so that defendant might learn to care for her own residential, hygienic, and other personal needs. But that witness could not credibly testify that defendant will in the foreseeable future become capable of caring for the children.

Also, the Law Guardian has unfairly attacked the grandmother who earlier made efforts to provide a home and sustenance for defendant, her son, and the children. Contrary to the Law Guardian's accusation that the grandmother was the cause of defendant's homelessness in November 2007, the evidence was that the grandmother gave her last five dollars to defendant and offered to care for the children while defendant attempted to find a home, but defendant refused the offer. The grandmother's financial circumstances did not permit her to provide indefinitely for three children and two uncooperative adults.

The arguments of defendant and the Law Guardian also neglect the history of psychological and psychiatric evaluations of defendant over several years concluding that her mental limitations are a serious risk to the children. Focusing on the testimony of the expert psychologist that the Law Guardian presented, they argue that it is in the children's best interests to maintain a relationship with their mother. However, even that expert did not testify defendant is capable of caring for the children, or has reasonably foreseeable prospects of gaining that capability. The expert was an advocate for a continuing parental relationship while other resources are utilized to care for the children, but such advocacy is not a substitute for the statutory criteria that the court must evaluate to determine whether parental rights should be terminated and the children placed for adoption. The Supreme Court has acknowledged conflicting theories among psychologists and other professionals regarding what is best for children whose natural parents cannot care for them but still desire to rehabilitate themselves and their parental relationship. The Court has declined to require "open adoption" concepts without legislative authorization. See In re Guardianship of K.H.O., 161 N.J. 337, 361-62 (1999).

Furthermore, the Law Guardian's expert could not testify about whether the children will suffer greater harm from termination of defendant's parental rights than if those rights are not terminated. He had done no evaluation of the children's present circumstances in the care of their grandmother and could not say that their interests are better met through a continuing relationship with their mother than with the permanency and stability of a safe and nurturing home environment.

Defendant and the Law Guardian also contend that the family court did not adequately consider the alternative of kinship legal guardianship instead of termination of parental rights and adoption. The statute applicable to kinship legal guardianship, N.J.S.A. 3B:12A-6d, applies only if "adoption of the child is neither feasible nor likely." In New Jersey Division of Youth and Family Services v. P.P., 180 N.J. 494, 505 (2004), the Court considered "the standards for termination under N.J.S.A. 30:4C-15.1a in light of the placement option provided by the [Kinship Legal Guardianship] Act." The Court held:

The plain language of the [Kinship Legal Guardianship] Act, as well as its legislative history, establish kinship legal guardianship as a more permanent option than foster care when adoption "is neither feasible nor likely" and "kinship legal guardianship is in the child's best interest." Conversely, when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1a(3). [P.P., supra, 180 N.J. at 512-13 (emphasis added) (internal citations omitted).]

The Court also stated that if the parent remains unfit, "the trial court should not consider kinship legal guardianship unless . . . the grandparents decline to adopt." Id. at 514. Here, defendant is attempting to use kinship legal guardianship "as a defense to termination of parental rights." The family court correctly rejected that alternative because the grandmother had indicated her decision to adopt the children.

In sum, DYFS presented ample evidence at trial to support termination of defendant's parental rights.



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