On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-70-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Harris and Koblitz.
J.G. is the biological father of T.G. (fictitiously, Tara). Tara was born on February 23, 2004. J.G. was incarcerated when Tara was six months old. At the time of trial, Tara was six years old and J.G remained incarcerated. At present, Tara and her half-brother K.G. (fictitiously, Kyle), who is six years her elder, reside with their maternal grandmother, G.B.
The Division of Youth and Family Services (Division) brought an action to terminate the parental rights of both J.G. and the children's mother, R.G. Shortly before trial, R.G. voluntarily surrendered her parental rights in favor of G.B. in an identified surrender. The trial judge denied termination of J.G.'s parental rights to Tara. The Law Guardian appealed, arguing that the Division proved all four prongs necessary to terminate J.G.'s parental rights as a matter of law. While this appeal was pending, Kyle was adopted by G.B.*fn1 The Division, R.G. and Kyle support the Law Guardian's position. We agree and reverse, terminating J.G.'s parental rights.
The facts in this matter are largely uncontested. Due to the fact-sensitive nature of family cases in general and parental rights cases in particular, our review of a trial court's findings of fact is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We ordinarily defer to the trial court's factual findings "because it has the opportunity to make first-hand credibility determinations about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citations omitted). Indeed, a trial court's factual findings are "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
In contrast, the 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) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
The trial judge made the following findings of fact, which we accept without reservation. J.G. began his sentence in 2004, approximately six months after Tara's birth.*fn2
The Division first became aware of the family in July 2008, when an anonymous caller reported that R.G. was drunk every day and her home was unsuitable for children. Upon investigation, the Division found R.G. to be under the influence and confirmed the home was unsanitary and in disrepair. The Division removed the children from the home because "they were in imminent danger due to inadequate food and environmental neglect." Tara and Kyle were placed with G.B., with whom they currently reside.
R.G. was directed to obtain substance abuse treatment, therapy, psychiatric monitoring and domestic violence counseling. Although R.G. initially complied, she later relapsed. The incarcerated J.G. was directed only to attend a psychological evaluation and to provide proof of the prison programs he was attending.
The Division's psychologist, Robert Miller, recommended that J.G. have contact with his children by phone and letters and indicated that "J.G. will require significant services for reintegration after his release from incarceration. These include vocational rehabilitation, psychological services and parenting skills training." In October 2009, the trial judge approved a permanent plan of termination of parental rights followed by adoption by G.B. with a concurrent plan of kinship legal guardianship.
The Division filed a complaint for termination of parental rights two months later. As stated previously, R.G. voluntarily terminated her parental rights in favor of G.B. in an identified surrender. J.G. was released from Mid-State Correctional Facility on September 8, 2010, which was after the trial, but before the trial judge's written decision. The trial judge denied the Division's application to terminate J.G.'s parental rights. He ordered that J.G. be permitted to engage in therapy and participate in a bonding evaluation before he would entertain another application to terminate J.G.'s parental rights. J.G. does not object to the continuation of Tara's placement with G.B. He wishes to retain his parental rights so that he can strengthen his relationship with Tara and be guaranteed regular contact with her.
On appeal the Law Guardian raises the following issues:
POINT I. THE TRIAL COURT ERRED IN USING TOO NARROW OF A STANDARD FOR THE FIRST PRONG OF THE BEST INTEREST[S] TEST.
POINT II. THE TRIAL COURT ERRED IN FINDING THAT PRONG TWO OF THE BEST INTEREST[S] STANDARD HAD NOT BEEN PROVEN BECAUSE IT ONLY CONSIDERED WHETHER THE DEFENDANT WAS WILLING TO ELIMINATE THE HARM FACING THE CHILD AND FAILED TO CONSIDER WHETHER THE DEFENDANT WAS ABLE TO ELIMINATE THE HARM OR WAS ABLE OR WILLING TO PROVIDE A SAFE AND STABLE HOME FOR T.G.
POINT III. THE TRIAL COURT ERRED IN FINDING THAT PRONG THREE OF THE BEST INTEREST[S] TEST HAD NOT BEEN PROVEN BECAUSE THE DIVISION CONCENTRATED ITS EFFORTS OF REUNIFICATION ON THE MOTHER.
POINT IV. THE TRIAL COURT ERRED IN FINDING THAT PRONG FOUR OF THE BEST INTEREST[S] TEST HAD NOT BEEN MET.
"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Parental rights are not absolute, however, because of the State's parens patriae responsibility to protect minor children from serious physical or emotional harm. J.N.H., supra, 172 N.J. at 471. When a child's physical or mental health is at stake, "a state is not without constitutional control over parental discretion." In re Adoption of Children by G.P.B., 161 N.J. 396, 414 (1999) (O'Hern, J., concurring) (quoting Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979)). In some cases, severance of the parent-child relationship may be required to protect the child's best interests. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).
In a termination case, "the Court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The Division must present sufficient evidence to demonstrate that the child's best interests will be substantially prejudiced if the parent-child relationship is preserved. A.W., supra, 103 N.J. at 603 (quoting In re Guardianship of Cope, 106 N.J. Super. 336, 340-41 (App. Div. 1969)).
In striking a balance between the parents' constitutional rights and the children's fundamental needs, courts conduct a four-part test to assess whether or not termination of parental rights serves the child's best interests. N.J.S.A. 30:4C-15.1(a). The statute authorizes a court to terminate parental rights if the Division proves by clear and convincing evidence that:
(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. [N.J.S.A. 30:4C-15.1(a).]
These four statutory criteria 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." K.H.O., supra, 161 N.J. at 348.
The trial judge determined that the Division failed to satisfy its burden as to all four prongs. We disagree and will discuss each prong individually.
The first prong requires the Division to prove that "the child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). The trial judge viewed the only count in the guardianship complaint against J.G. as an allegation of abandonment. That final count states in full:
[J.G.] is the father of [Tara]. [J.G.] has been incarcerated since [Tara] was placed in the Division's custody. [J.G.] has failed substantially to provide, maintain and ensure the safety and well[-]being of his child. [J.G.] has failed to make a permanent plan for the child[,] has abandoned [Tara] to the care of others, and has substantially failed to perform the regular and expected functions of care and support for the minor(s). ...