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New Jersey Division of Youth and Family Services v. T.L.H

July 7, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-08-10. Yvonne Smith Segars, Public Defender, attorney for appellant (Howard Danzig, Designated Counsel, of counsel and on the brief).

Per curiam.



Submitted June 8, 2011 Before Judges Ashrafi, Nugent and Kestin.

Defendant S.S. appeals from a July 6, 2010 judgment of the Family Part terminating his parental rights to his youngest daughter, now fourteen years old. We affirm.

In the spring of 2008, plaintiff Division of Youth and Family Services (DYFS) received referrals to the minor's home concerning drug use by the parents and defendant's alleged drug and firearm sales from the home while the child was present. When DYFS began its investigations, the mother had already moved out of the home.*fn1 DYFS eventually removed the child from the home in July 2008 and placed her with her maternal grandmother pursuant to a Title 9 abuse and neglect complaint under N.J.S.A. 9:6-8.21 to -8.73. A year later, after defendant and the child's mother did not comply with drug evaluation and treatment services, DYFS filed a Title 30 complaint pursuant to N.J.S.A. 30:4C-15.1a to terminate their parental rights, and the court dismissed the abuse and neglect case.

Under N.J.S.A. 30:4C-15.1a, parental rights may be terminated when:

(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 for 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 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.

The four prongs of the statute 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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). DYFS bears the burden of proving all four prongs by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007).

At the time of trial in this case, the mother made a voluntary, identified surrender of her parental rights in favor of adoption by the grandmother. The mother is not involved in this appeal.

Defendant father opposed termination of his parental rights. At trial, he conceded he had endangered the child because he could not provide a home for her, and he agreed that she should remain in the custody of her grandmother. However, defendant sought an order for kinship legal guardianship (KLG) by the grandmother instead of termination of his parental rights leading to adoption. He desired assurance under the law that he could continue his visitations with his daughter, which the grandmother has accommodated and promised to continue after adoption.

In a termination of parental rights case, the family court's inquiry is extremely fact-sensitive. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). In this case, Judge Marvin Schlosser heard the evidence at trial and made detailed findings of fact from which he reached appropriate conclusions. Our standard of review on appeal requires that we defer to the family court's findings of fact and conclusions of law based on those findings. G.L., supra, 191 N.J. at 605; N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009).

Deference is accorded because the trial judge had the opportunity to "make first-hand credibility judgments" and to gain a "feel of the case," thus sustaining 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 M.M., supra, 189 N.J. at 293). We also defer to the ...

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