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New Jersey Division of Youth and Family Services v. K.A.D


March 12, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-88-09.

Per curiam.



Submitted February 29, 2012 -

Before Judges Graves, Harris, and Koblitz.

Defendant father Kenneth D. appeals from an April 14, 2011 judgment terminating his parental rights to his daughter Sophia, born in May 2004, and his son Albert, born in April 2005.*fn1

Kenneth contends that the Family Part erred in finding that the Division of Youth and Family Services (the Division) had demonstrated by clear and convincing evidence all four of the required factors mandated by the best interests of the child test. See N.J.S.A. 30:4C-15.1(a). Specifically, he argues that the court mistakenly concluded that (1) he harmed or posed a threat of harm to his children (factor one), (2) he was unwilling or unable to parent his children (factor two), and (3) terminating his parental rights would not do more harm than good (factor four). We disagree and affirm.


The Division has a longstanding history with Kenneth's family, evidenced by twelve referrals, four of which were substantiated. Throughout the Division's involvement, Kenneth conceded that his relationship with his then wife Sharon -- Sophia's and Albert's mother -- was in turmoil, largely because of numerous incidents of domestic violence. The first documented incident occurred in April 2005, in which Kenneth admitted to assaulting Sharon by "[s]lap[ing] her [face] with [his] open hand" while she was nine months pregnant with Albert. Another assault, approximately three months later in July 2005, came in the midst of a typical argument with Sharon. Kenneth described his conduct as follows: "I got mad . . . I was wrong. I struck her and I had to do the time for it." Kenneth served approximately one month in the Middlesex County Jail as a result of that incident. Shortly after being released, Kenneth and Sharon reunited and continued to have turbulent arguments in the presence of their children.

In November 2005, while Kenneth was incarcerated in Florida, the Division substantiated a referral that Sharon had left Albert home without supervision. The children were removed from Sharon's care. Shortly thereafter, Kenneth and Sharon reunited while the children remained with a foster family, only for Kenneth to continue his assaultive conduct towards Sharon.

In August 2006, Sharon was granted a final restraining order (FRO) against Kenneth. After the children were returned to Sharon's care in June 2007, the FRO was amended to include Sophia and Albert within the FRO's protection.

In December 2007, Kenneth was convicted of aggravated assault (two counts), criminal restraint, and endangering the welfare of a child (non-Megan's Law).*fn2 He was sentenced to an aggregate term of seven years incarceration subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

In February 2008, Sophia and Albert were once again removed from Sharon's care because of ongoing domestic violence and substance abuse in the home. A few months later, Sharon and Kenneth were divorced. On April 28, 2009, the Division filed a complaint for guardianship of Sophia and Albert.*fn3

On July 21, 2009, the Division's expert, psychologist Alan

J. Lee, Psy.D, conducted several bonding evaluations of Sharon and her children Sophia and Albert, as well as the children with their foster parents. Dr. Lee found that the children had developed significant and positive relationships as well as psychological attachments and bonds with their foster parents. Dr. Lee testified that these bonds and attachments were such that Sophia, and particularly Albert, would suffer "sever[e], enduring, and irreparable psychological harm" if they were removed from their foster parents' home.

The next day, Dr. Lee evaluated Kenneth, the only such evaluation performed by the expert. Dr. Lee was made aware that Kenneth had an extensive criminal history, having been incarcerated twenty to thirty times, charged with simple assault ten to fifteen times, and having been the subject of multiple restraining orders by different people. Dr. Lee noted that Kenneth offered a plan to care for his children if he were granted parole in July 2012, however, it was concluded that Kenneth's prognosis for "significant and lasting change" was poor, particularly given his propensity, among other things, to minimize his problems.

Dr. Lee expounded that removing Sophia and Albert from their foster parents would create a "significant risk" that they would experience "irreparable psychological and emotional harm," which Kenneth would not be able to mitigate. No bonding evaluation was conducted of Kenneth and his children because he had been incarcerated since 2006 and had no contact with the children as a result of the FRO and his conviction for endangering the welfare of a child.

Kenneth testified at trial in October and December 2010. He acknowledged his extensive criminal history and his tumultuous relationship with Sharon. He indicated that since his incarceration he had participated and completed substance abuse and parenting skill programs. Moreover, he completed a behavior modification program including components of the workforce development program, conflict resolution, computer skills programs, and additional educational programs.

On April 14, 2011, almost eighteen months after the commencement of the trial, the Family Part rendered an oral decision. The court found that the Division had satisfied all four factors of the best interests standard by clear and convincing evidence.

As to the first factor, the trial court found that the parties' overall family relationship was extremely toxic and that Kenneth's behavior posed, and would likely continue to pose, "a serious risk to the . . . children's health, safety, and development." It specifically noted that although infants, Sophia and Albert were present for many of their parents' physical altercations:

While the children themselves are young and did not necessarily understand that they were observing domestic violence, it's the constant and continued relationship, which the Court has no reason to believe will ever change in terms of [Kenneth's] behavior in a family or personal relationship, that poses a serious risk to the child -- the children's health, safety, and development.

If they see that that's the way life is lived, of course they have no hope for [a] future in their own life. They will be in danger. The Court need not wait for them to be physically hurt or injured. The Court can be satisfied that the current status quo indicated that the danger is there, it is clear, and that [Kenneth's] . . . acts . . . ha[ve] caused that danger.

In analyzing the second factor, the trial court found, based upon the bonding evaluations of the children with their foster parents, that the children would suffer "serious and enduring psychological harm" if removed from their present caregivers. The court further found that it was impossible to conduct a bonding evaluation with Kenneth and the children because the children were "absolutely too young," Kenneth had no contact with the children for four years because of the FRO and the nature of his conviction, and it was unrealistic to subject the children to that type of evaluation given the limited prospects of a bond existing under those circumstances. After considering the psychological evaluations and observing Kenneth's in-court behavior -- one time leading to his physical and forceful removal from the courtroom -- the court concluded that Kenneth continued to have issues controlling his rage. Kenneth's long history of domestic violence against several women, in conjunction with his criminal record, demonstrated a long-standing problem that was unlikely to change. The Family Part determined that these factors confirmed Dr. Lee's prognosis. Finally, the court concluded that Kenneth had no concrete plans for a stable home for the children and continued to be unable to provide for them.

Next, the Family Part moved to the third factor. The court noted Kenneth's salutary efforts to rehabilitate himself. The court found it reasonable that the Division did not provide Kenneth with any additional services or with child visitation because even he agreed that it was not an appropriate setting. Moreover, the court found that because of Kenneth's conviction for endangering the welfare of a child, the Division would have been in violation of the law had it permitted visitation. Finally, the court found that there were no legitimate alternatives to termination of parental rights because no appropriate kinship legal guardianship plan was available. The court determined that Kenneth's sister-in-law, who had only recently come forward after the children had been with their foster parents for a "substantial period of time," was not an appropriate placement. Notably, Kenneth does not express any displeasure with the Family Part's factor three conclusions on appeal.

Lastly, the court determined that the Division satisfied the fourth factor with clear and convincing evidence. It concluded that the children were in a caring and loving home and that the foster parents were willing to adopt and "are in a position where they are taking care of the children in the best way [possible]."

On April 14, 2011, the Family Part entered a judgment terminating Kenneth's parental rights. This appeal ensued.


Having considered Kenneth's arguments on appeal, in light of the record and applicable law, we discern no sound reason to disturb the Family Part's findings, as they are supported by substantial credible evidence and have not been shown to be clearly mistaken or to have produced a denial of justice. See N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (noting the limited standard of review applicable in guardianship cases). We add only a few comments regarding each of the challenged statutory criteria.

The New Jersey Supreme Court has "consistently imposed strict standards for the termination of parental rights." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid. Under that test, termination is never appropriate unless the Division satisfies each of the following four statutory factors 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. 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).]

"The statute requires that the State demonstrate harm to the child by the parent." K.H.O., supra, 161 N.J. at 348. The four statutory factors "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." Ibid. "When the child's biological parents resist the termination of their parental rights, the court must decide whether the parents can raise their children without causing them further harm." 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) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).

Here, the record is replete with numerous instances of the children's exposure to unhealthy and dangerous conditions, which satisfied the first factor. The harm need not be physical. Our Supreme Court has instructed that:

"[T]he trial court must consider whether the parent has harmed or is likely to continue to harm the child. Harm, in that context, involves the endangerment of the child's health and development resulting from the parental relationship. Rather than focusing on a single or isolated harm, the standard may be triggered by an accumulation of harms over time." [N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166-67 (2010)(quoting N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506-07 (2004)).]

The Supreme Court has further held that a parent's extended denial or withdrawal of nurture and care, whether by action or omission, is a harm that endangers the health and development of a child. In re Adoption of Children by L.A.S., 134 N.J. 127 (1993).

Kenneth's disregard for his children's welfare is emblemized by his repetitive negative interaction with Sharon, resulting in several violent episodes and culminating in his convictions for aggravated assault and endangering the welfare of a child. The tender age of the children at the times he behaved inappropriately does not excuse what is incontestable: Kenneth was unwilling and unable to mitigate the effects of the chaotic and noxious relationship with the children's mother, all to Sophia's and Albert's detriment.

The second factor relates to the parent's resolve to eliminate harm. Here, the Family Part found that Kenneth was unable to eliminate the harm facing his children and that further delay would only continue to harm them. The court specifically found:

One of the things the Court has to consider is how [Kenneth] conducted himself during these proceedings. [Kenneth] at one point said that he didn't have an anger issue, he no longer had an anger issue. Later on he had to confront the fact that he obviously does continue to have an anger issue.

The Court was aware during one proceeding here which he had to be forcibly restrained and removed from the courtroom[.]

[His] behavior during . . . court showed that he can be out of control at any given time. Of course his consistent behavior with regard to [Sharon], his criminal record in this case, his history of domestic violence with regard to multiple partners indicates that his problem is long term.

And when Dr. Lee says the prognosis of his change is extremely poor, I have to agree with that. There is unlikely a chance that he is going to provide a stable home.

He has no specific plans for a stable home upon his release, which is not going to happen until July of next year, if at that time.

Kenneth contends that these findings are undercut because he completed several programs offered by our state's correctional system and that they have somehow eliminated the risk of harm he posed to his children. This is unpersuasive. Dr. Lee was apprised of Kenneth's involvement and completion of certain courses and programs at the time of the psychological evaluation. The Family Part's reliance upon Dr. Lee's opinion is entirely reasonable and appropriate.

Finally, the record supports the trial judge's finding that termination of Kenneth's parental rights will not cause either child more harm than good. This aspect of the best interests standard is founded on the acknowledged need for permanence in a child's life. A.W., supra, 103 N.J. at 610. This inquiry does not "require a showing that no harm will befall the child as a result of the severing of biological ties." K.H.O., supra, 161 N.J. at 355. Rather, the analysis considers both the biological and foster relationships. Ibid. The question is whether "the child will suffer a greater harm from the termination of ties with her [or his] natural parents than from the permanent disruption of her [or his] relationship with her [or his] foster parents." Ibid. Of course, this requires an inquiry into the relationship the child has with both the biological and foster parents. Ibid.

The trial court relied on the opinions of Dr. Lee, coupled with the court's review of the totality of the circumstances, to conclude that the fourth factor was satisfied. The court noted the children's ages and the length of Kenneth's incarceration in determining that it was unlikely that a bond existed and that a bonding evaluation would have proven futile. When Kenneth was first incarcerated, Sophia and Albert were less than three years old. The children had no contact with their father for nearly four years. The Family Part properly determined that the strong bond and attachment the children displayed with their foster parents outweighed the lack of a relationship that was evidenced with their biological father. The ultimate finding of grave harm to the children if they were to be separated from the foster family that has served them for the majority of their young lives is well supported by the record.

Accordingly, we affirm the April 14, 2011 order terminating the parental rights of Kenneth to his children, Sophia and Albert.


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