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New Jersey Division of Youth and Family Services v. B.R

May 16, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
B.R., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF B.J.B., A MINOR.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-44-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 11, 2011

Before Judges Lisa, Alvarez and Ostrer.

Defendant,*fn1 B.R., appeals from an October 30, 2009 judgment of guardianship, terminating her parental rights to her biological son, B.J.B.,*fn2 born July 22, 2000. Brian was removed from his mother three times: between September 2000 and January 2001; between July 2004 and October 2005; and lastly in April 2007.

On appeal, defendant argues that the Division failed to prove the second, third, and fourth prongs of N.J.S.A. 30:4C-15.1a, pertaining to: the parent's unwillingness or inability to protect the child, N.J.S.A. 30:4C-15.1a(2); reasonable efforts by the Division of Youth and Family Services (the Division or DYFS) to provide corrective services, N.J.S.A. 30:4C-15.1a(3); and the balance of benefit and harm from termination of parental rights, N.J.S.A. 30:4C-15.1a(4). We affirm substantially for the reasons that Judge Mary K. White expressed in her written and oral decisions.

I.

By an order entered April 30, 2007, the court affirmed Brian's emergency removal from the home and awarded the Division custody after he and his mother were assaulted by her live-in boyfriend, Sheldon Jones, on April 26, 2007.

The court ultimately entered a fact-finding order October 1, 2007, determining that defendant abused or neglected Brian in that she was intoxicated while caring for him, failed to obtain medical assistance for his injuries, and was evasive or uncooperative in providing information regarding the injuries. The same day, the court ordered that Brian remain under the Division's custody, care and supervision.

On April 22, 2008, the court entered a permanency order. The court found that it was not safe, and would not be safe in the foreseeable future, to return Brian to his mother because she "failed to complete services to address substance and mental health issues and continues a relationship with [Jones], who is violent and has failed to complete services." The court found that termination of parental rights followed by adoption was the appropriate plan, as the parents had failed to complete services and Brian had been in placement for twelve months.

On June 16, 2008, the Division filed its complaint for guardianship. In February 2009, the court scheduled trial to begin May 26, 2009, and ordered a mediation, which was unsuccessful. On April 3, 2009, defendant moved to amend the permanency plan to make reunification the goal, and to dismiss the guardianship complaint. Defendant argued that her successful completion of substance abuse treatment and receipt of domestic violence counseling warranted that relief. The court disagreed and denied the motion on May 26, 2009, concluding that modifying the permanency plan as requested two years after removal would violate federal and state statutory mandates to achieve permanency. The court denied defendant's request for dismissal, inasmuch as there existed genuine issues of material fact regarding whether termination of parental rights was in Brian's best interest.

Trial was conducted over six days between May and September 2009. The Division called James L. Loving, a clinical and forensic psychologist, as an expert witness. He testified about his psychological evaluation of defendant, and the results of his bonding evaluation of defendant and Brian's then-current foster parents. Various Division employees testified regarding defendant, Brian, the foster home, and Brian's prospects for adoption. Defendant did not testify, nor did she call any expert or other witnesses. The Law Guardian also did not call any witnesses and ultimately supported termination of parental rights.

The court entered judgment October 30, 2009, and issued an oral opinion on November 17, 2009, as well as an undated written decision. The court found that the Division had satisfied the four-element test for termination of parental rights by clear and convincing evidence. We will review the basis of the court's decision at greater length in the context of our discussion of the four elements.

Defendant filed her notice of appeal on December 16, 2009. The Division and the Law Guardian ask us to affirm the trial court's decision.

II.

In an action to terminate parental rights, the Division has the burden to establish by clear and convincing evidence four elements:

(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) [DYFS] 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-15.1a.]

These four, often overlapping elements, "provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). We recognize that a parent's right to raise his or her child is constitutionally protected. Id. at 346. However, that right may be terminated upon a showing by clear and convincing evidence that the child is at risk of serious and lasting future harm under the four-prong statutory test. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

Our scope of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We give deference to the trial court's factual findings based on the trial judge's familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We do not disturb the trial court's findings unless they are so clearly mistaken or unsupported as to deny justice. N.J. Div. of Youth & Family Servs. v. E.P., supra, 196 N.J. at 104. ...


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