On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-56-09. Kenneth J.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Fisher and Nugent.
Rosellini argued the cause for appellant.
This appeal concerns D.M.'s future. C.M. gave birth to D.M. (hereafter "the child") on March 11, 2007; the child and his mother tested positive for cocaine at the time of the child's birth. C.M. later surrendered her parental rights. The parental rights of the child's father, defendant D.M. (hereafter "defendant"), were terminated at the conclusion of a five-day trial.*fn1
In this appeal, defendant contends the Division of Youth and Family Services (the Division) failed to sustain its burden of proving all four prongs of the statutory test contained in N.J.S.A. 30:4C-15.1a, which govern the court's power to terminate parental rights. The Law Guardian argues the Division failed to sustain its burden of proof regarding the third and fourth prongs, chiefly contending that the trial judge mistakenly declined to grant kinship legal guardianship (KLG) to the child's paternal grandmother, L.M., who also exercises KLG over Carolyn. We find no merit in those arguments and affirm.
We preface our examination of these issues by adverting to the well-accepted constitutional principles that an individual's rights to conceive and raise children have been deemed "essential," Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042, 1045 (1923), "basic civil rights," Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct. 1110, 1113, 86 L. Ed. 1655, 1660 (1942), "far more precious . . . than property rights," May v. Anderson, 345 U.S. 528, 533, 73 S. Ct. 840, 843, 97 L. Ed. 1221, 1226 (1953). See generally Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). Yet, the state "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979). That is, "the right of parents to be free from governmental intrusion is not absolute," and the state "as parens patriae may act to protect minor children from serious physical or emotional harm"; the invocation of that power may, at times, permit "a partial or complete severance of the parent-child relationship." A.W., supra, 103 N.J. at 599 (quoting In re Dep't of Pub. Welfare, 421 N.E.2d 28, 36 (Mass. 1981)). Every case is fact-sensitive. N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 287 (2004). And each contest between a parent's natural and constitutional rights and the state's interest in the child's welfare requires "scrupulous adherence" to the procedural safeguards adopted by our Legislature. Id. at 286; see also N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 109 (App. Div. 2010).
Once a trial court has determined to terminate parental rights, our power to intervene is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," we only intervene when findings "are so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
In determining whether to terminate parental rights, the trial court must employ the four-prong test set forth in N.J.S.A. 30:4C-15.1a, which requires that the Division prove by clear and convincing evidence:
(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 . . .;
(3) The [D]ivision 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 ...