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New Jersey Division of Youth and Family Services v. E.W


March 15, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket Nos. FG-16-28-10 and FG-16-11-11.

Per curiam.



Submitted on January 18, 2012

Before Judges Yannotti, Espinosa and Kennedy.

In these consolidated appeals, defendant E.W. appeals from the Family Part's judgments of December 6, 2010 and February 14, 2011, terminating his parental rights to his son K.J. and his daughter J.J., respectively.*fn1 Defendant raises the following points on appeal:


A. The trial judge made improper findings of fact to support his decision to terminate parental rights

B. The trial judge improperly found that the first prong of the statute was satisfied

C. The trial judge improperly found that the Division satisfied the second prong of the statute, and, therefore, [E.W.'s] rights must be reinstated

D. The trial judge improperly found that the Division satisfied the third prong of the Statute

E. The Division did not conduct a bonding evaluation with [E.W.] and his children or with the foster mother and the children

After considering the record and the briefs in light of the applicable law, we are satisfied that the trial judge's findings and conclusions are firmly supported by substantial, credible evidence on the record as a whole. See, e.g., N.J. Div. of Youth and Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part and remanded, 179 N.J. 264 (2004) certif. denied, 186 N.J. 603 (2006). Moreover, we find that the trial judge's denial of defendant's application for a continuance was not error. We affirm.


E.W. and A.J. are not married. They are the biological parents of K.J., born September 5, 2008, and J.J., born September 3, 2009. Although A.J. has not appealed the termination of her parental rights, A.J.'s background is intertwined with E.W's background and we must therefore review the testimony and evidence respecting her history, as well.

The involvement of the Division of Youth and Family Services (DYFS or Division) with E.W. and A.J. commenced as early as 2007 when it received a referral with respect to another child. DYFS again received a referral from St. Joseph's Hospital upon the birth of K.J. on September 5, 2008. The referral was made to DYFS because A.J. had been previously diagnosed with an affective disorder and depression. A DYFS representative met with A.J. in the hospital and obtained her consent to a plan whereby she and K.J. would reside with A.J.'s sister. DYFS arranged for the Loving Care Agency to stay with K.J. and A.J. when the sister was out at work.

A.J. had previously been diagnosed as suffering from schizo-affective disorder and bipolar disorder and had been hospitalized twice at Greystone Park Psychiatric Hospital. Consequently, in addition to the supervision plan, A.J. agreed to comply with the Division's recommendations for psychiatric and substance abuse treatment. On September 11, 2008, Dr. Samiris Sostre, M.D., examined A.J. and recommended that her contact with the child be supervised "until her psychiatric symptoms are stabilized."

E.W. at this point had a history of aggravated assault convictions and substance abuse. E.W. was incarcerated on August 19, 2008, on an assault charge involving A.J. The Division visited the incarcerated E.W. and referred him for substance abuse assessments. However, E.W. failed to attend his first scheduled substance abuse assessment appointment, as well as several rescheduled appointments.

On November 3, 2008, DYFS effected a Dodd removal of K.J. after receiving a referral from a Loving Care agency worker who visited the home of A.J.s sister and found neither A.J. nor K.J. at home.*fn2 The Division investigated and located K.J. in E.W.'s room at a men's boarding house in Paterson. According to E.W., K.J. had been in his care for two weeks after A.J. left K.J. with him. According to E.W., A.J. would "come and go" and he was not sure where she was at any given time.

E.W.'s residence in the rooming house consisted of a single room with a bed and a closet. Boarders in the rooming house shared a communal kitchen and bathroom facility. E.W. later stipulated that this housing arrangement was inappropriate for the care of the child.

DYFS removed K.J. from E.W.'s care and placed him in foster care where he has lived ever since. The Division cited the following reasons for removing K.J.: 1) inappropriate housing; 2) E.W.'s use of controlled dangerous substances; 3) E.W.'s non-compliance with substance abuse assessments; and 4) A.J.'s breach of her agreement to have only supervised contact with K.J. Thereafter, DYFS workers met with both E.W. and A.J. and referred them again for substance abuse assessments and psychological evaluations. E.W. attended a substance abuse assessment in December 2008 and was referred for outpatient treatment. However, he never attended treatment. Dr. Sostre arranged for a psychological evaluation of E.W., but he never attended and never contacted the Division to reschedule the evaluation. E.W. declined to participate in the psychological evaluation scheduled for December 3, 2008, because it would not be "confidential." The Division again referred E.W. for substance abuse assessments on many occasions from January through April 2009, but E.W. did not attend the assessments and he did not contact the Division.

E.W. was again incarcerated for a parole violation on April 8, 2009, and remained incarcerated until July 10, 2009. During E.W.'s imprisonment, Dr. Sostre met with E.W. in an effort to encourage him to participate in substance abuse assessments and treatment, as well as psychological evaluations. Following his release from incarceration on July 10, 2009, the Division scheduled additional substance abuse assessments for E.W., but he attended none.

During the pendency of K.J.'s protective services, the Division tried to provide A.J. with numerous services to help her reunify with K.J. The Division referred A.J. for substance abuse evaluations on seven occasions between September 10, 2008 and May 17, 2010. She did attend some initial substance abuse evaluations all of which, with the exception of one, recommended further treatment. She never completed any of the programs, however.

Also, the Division made several appointments for A.J. at Harbor House at St. Joseph's Mental Health Clinic and the Challenge Program. While A.J. did attend these programs sporadically, she stopped attending, however, on the belief that she did not need treatment.

J.J. was born on September 3, 2009, and was placed in foster care with the same family that had foster care of K.J. Twenty-one days later, E.W. was again incarcerated for thirty days on a violation of probation. The Division did not consider placing J.J. with E.W. at this time because he was "chronically incarcerated," "did not have stable housing," was "non-compliant" with services, and had been referred without success for drug and alcohol assessments and psychological evaluations. A.J.'s visitation with J.J. was suspended in November 2009 because of her non-compliance with substance abuse treatment and psychological treatment but visitation was restarted in June 2010. In October 2010, however, the visitation was again suspended because she had missed so many visits with the child. DYFS characterized her visitation with the children as "very, very sporadic."

On April 19, 2010, E.W. was sentenced to three years in state prison on a violation of probation. He remained incarcerated throughout the guardianship hearings.

Dr. Robert Kanen, psychologist, evaluated both A.J. and E.W. in 2010. Dr. Kanen testified at the termination hearing that A.J. had "serious parenting deficits" and a history of "mental illness." He explained that she could not provide a permanent, safe and secure home for the children and that placement of the children with her would subject them to an "unnecessary risk of harm." He noted that she is "not close" to understanding her illness and is not motivated to understand her illness. He opined that she suffers from bipolar disorder which would require a long-term sustained commitment to manage and that she will not comply with treatment. He added that she could not understand the needs of children or provide reliable care and that her prognosis was very poor.

Dr. Kanen testified that E.W. had "borderline" cognitive functioning capability and severe personality problems.

He added that E.W. was unpredictable and hostile and likely to be "brutal" under the influence of alcohol. He found E.W. to have significant parenting deficits and would not be able to provide a permanent, safe and secure home. E.W. posed an unnecessary risk of harm to the children and his prognosis was very poor.

Dr. Sostre also opined at the termination hearing that A.J. had limited understanding of her condition and suffered from schizo-affective disorder. As a consequence, she is "not able to parent" and without medication and an understanding of her condition, it was likely her disorder would worsen over time. She posed an "acute risk" to herself and the children.

At the hearings, E.W. elected not to testify or to present any witnesses. He also chose voluntarily to forgo the submission of any expert reports or undertake any bonding evaluations.


We turn first to E.W.'s claim that the trial judge erred in not granting a continuance to allow his counsel to obtain and review the discovery on the first day of trial on September 22, 2010.

On the first day of the hearing pertaining to K.J., E.W.'s counsel asked for a continuance noting that he had not received discovery. The Deputy Attorney General for DYFS represented that the discovery package had been sent to E.W.'s counsel on three occasions prior to the hearing but no one was at his office to receive the package. A note was left for E.W.'s counsel on September 13, 2011, indicating that the discovery package could be obtained at the UPS Office, but it was returned on September 20, 2011 because no one had appeared to retrieve it. The Deputy Attorney General for DYFS represented that all discovery would be provided to E.W.'s counsel that day.

The trial judge declined to grant a continuance at that time and noted, "if it appears to me subsequently that [counsel] had been impaired or prejudiced by [lack of discovery], then I always have the option of separating out [E.W.] and starting the case over." He also explained that, "when we get to the point in the case where [counsel] wants to make another application for whatever reason, I will listen to it, but right now, we are going to proceed with the case of [K.J.]." The hearing then continued on September 23, 2010, September 30, 2010, and October 6, 2010.

Significantly, on September 30, 2010, after counsel for E.W. indicated that his client would not undergo a psychological evaluation, the court asked counsel, "Are you now fully prepared in all respects to continue this case?" Counsel for E.W. replied "I am, judge." The court then noted, "All right, so we no longer have an issue in terms of starting the case without notice." Counsel replied, "No, that's correct judge."

Again, on October 6, 2010, the court asked counsel for E.W.,

[W]ould I be correct by saying that by virtue of the fact that you've been able to get the discovery and have sat in throughout the entire trial, had the opportunity to cross-examine and participate in the trial, that the issue of pretrial notice and adequate time is no longer an issue in terms of representing [E.W.]?

Counsel replied, "That's correct, judge."

On appeal, counsel for E.W. contends that the court erred in not granting the initial continuance and argues that E.W. was prejudiced because had discovery been provided, counsel would have been "able to better cross-examine" the Division's experts and to demonstrate that E.W.'s room in the boarding house "should be more than sufficient for an infant and his father" since there was "no need for additional space for a father and son when the child is too young to sit up, let alone walk around the room." We find this contention to be without merit.

Not only did E.W.'s counsel cross-examine the Division's witnesses, but also counsel had the discovery in hand before the hearings ended and explicitly advised the court that he felt no need to press his request for an adjournment. Moreover, E.W. sat through each phase of the hearing and at no time elected to testify to refute any of the factual statements made by the Division's witnesses and elected not to present any expert testimony challenging the conclusions of the Division's experts. Accordingly, we find no error in the trial judge's denial of the motion for a continuance.

The trial judge rendered his decision terminating the parental rights of E.W. and A.J. to K.J. on December 6, 2010. Moreover, following additional hearings on January 19 and 24, 2011, the trial judge on February 14, 2011 rendered his decision terminating E.W. and A.J.'s rights to J.J.

We now turn to E.W.'s contention that the Division failed to satisfy, by clear and convincing evidence, the requirements of N.J.S.A. 30:4C-15.1(a).


Under N.J.S.A. 30:4C-15.1(a), parental rights can be terminated only when the State proves that:

(1)The child's safety, health or development has been and 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 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.

Our task is to determine whether the trial court's decision was "based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 511 (2004). The scope of our review is limited, and the trial court's factual findings "should not be disturbed unless 'they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)(quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Further, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should show deference to family court factfinding.'" A.R.G., supra, 361 N.J. Super. at 78 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Moreover, consideration of the four prongs of the statutory test must be made as a whole. See In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

Clear and convincing evidence is evidence which results in a firm belief or conviction as to the truth of the fact or matter sought to be established. Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960). We are satisfied after our review of the record overall that the Division met the statutory test by clear and convincing evidence.

Under the first prong of the best interests standard, DYFS must prove by clear and convincing evidence that "[t]he 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 harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. There are situations where "[t]he potential return of a child to a parent may be so injurious that it would bar such an alternative." New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591, 605 (1986). Accordingly, the absence of physical abuse or neglect is not conclusive; indeed, serious emotional developmental injury should be regarded as injury to the child. Ibid. "[T]he psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977); see also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights.").

With respect to the first prong, E.W. claims the trial judge erred in determining that E.W.'s incarceration was a "sufficient finding of harm because [E.W.] made himself unavailable by agreeing to a prison term rather than probation. The trial judge ignored the fact that [E.W.] availed himself of opportunities to work while in jail." E.W. also claims that the trial judge's finding that E.W.'s housing was not appropriate for an infant was "illogical since at that time [K.J.] was an infant who could not sit up let alone walk around or play in the room." These contentions are without merit.

The trial judge found that, with respect to K.J., E.W. harmed the child by making himself unavailable when the child was born and needed to be placed in a safe and secure environment due to the incapacity of [A.J.] to parent the child not only by his repeated and present incarcerations, but also by virtue of his non-employment and lack of shelter facilities during the period when he was not in jail.

The trial judge further observed that "there is a harm to the child [J.J.] by virtue of [E.W.] making himself unavailable to take custody and care for the child and to provide for the child's needs when placement was necessary." He added that E.W. was "unable during the periods when he was not incarcerated to demonstrate any inclination or ability to provide a safe and secure home for the child or to become employed." He found credible the testimony of Dr. Kanen that E.W. had "severe personality problems" and "was subject to violent and variable mood swings." He also found, on the basis of Dr. Kanen's opinion, that E.W. suffered "severe parenting deficits regarding the providing of the child with a safe and secure home and care over any extended period of time." These findings are well supported in the record.

Incarceration is clearly a relevant factor in determining whether to terminate parental rights. In re Adoption of Children by L.A.S., 134 N.J. 127, 138 (1993); N.J. Div. of Youth and Family Servs. v. T.S. and K.G., 417 N.J. Super. 228, 242-43 (App. Div. 2010). "Imprisonment necessarily limits a person's ability to perform regular and expected parental functions. It may also serve to frustrate nurturing and the development of emotional bonds and as a substantial obstacle to achieving permanency, security, and stability in the child's life." N.J. Div. of Youth and Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006), certif. denied, 192 N.J. 68 (2007) (internal citations and quotations omitted).

Moreover, the harm to the children caused by A.J.'s conduct was compounded by E.W.'s persistent failure to perform any parenting functions or to provide any supervision, care or support for the children during the course of their lives. Failure of one parent to assume parental obligations when the other parent is unable to do so causes harm to the children arising out of the parental relationship. In re Guardianship of D.M.H., 161 N.J. 365, 380 (1999); K.H.O., supra, 161 N.J. at 352-54.

E.W. also claims that the Division failed to prove the second prong by clear and convincing evidence. Here, again, his contention is belied by the record supporting the trial judge's findings.

Under the second prong of the best interests standard, a trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care, . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This harm includes "evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2). The second prong focuses on parental unfitness and overlaps with the proofs supporting the first prong. D.M.H., supra, 161 N.J. at 379.

The trial judge found that E.W. did "nothing" when he was not incarcerated to provide a safe and secure home for the children or to become employed. He added that the "deferment of permanency is indicative that the child's best interests are not his priority since the delay will cause significant harm to the child who needs safety and security during his formative years . . . ." He added that E.W. was not "compliant with the requirement to participate in services so as to address his parenting deficiencies, thus confirming Dr. Kanen's opinion that he suffers from long-standing and severe personality issues that are unlikely to change, that he has significant cognitive defects and any prognosis for change must be deemed 'poor'[.]" He found E.W. "does not have the capacity to parent the child now or in the foreseeable future." The trial judge explained it would be "unreasonable [and] contrary to the child's best interests to continue to delay the matter and wait for [E.W.] to be released from jail and wait further for an indeterminate period of time for [E.W.] to be able to remediate his parenting deficiencies . . . " which the credible testimony of Dr. Kanen indicates are "unlikely to change", in any event.

As noted, the second prong of the best interests test "relates to parental unfitness" which may be established by demonstrating that: (1) "the parent is 'unwilling or unable to eliminate the harm'"; or (2) "the parent has failed to provide a 'safe and stable home'" and "a 'delay' in 'permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). The inquiry is "whether the parent can raise the child without inflicting any further harm." N.J. Division of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992), certif. denied, 190 N.J. 257 (2007)).

The proofs adduced of the second prong were clear and convincing. The undisputed expert testimony, which the trial judge specifically accepted as credible, demonstrated that both A.J. and E.W. suffered from severe parenting deficits and mental and emotional problems which are permanent and will not improve without commitment by A.J. and E.W. The Division's expert testimony showed that these deficits posed an unreasonable risk of harm to each child.

We have noted that instability and lack of permanency adversely affect the development of a child and the child's best interests cannot be sacrificed because of a parent's inability to address potential future harms, even when they are willing to try, which is not the case with E.W. See N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004); see also K.H.O, supra, 161 at 358 (bolstering the long-standing principle that birth parents should only have a limited time to eliminate the harm facing their child).

The third prong of the best interests standard requires DYFS to make "reasonable efforts to provide services to help the parent correct the circumstances" that necessitated removal and placement of the child in foster care. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services essential to achieving reunification, notice to the family of the child's progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "'coordinated'" and must have a "'realistic potential'" to succeed. N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).

With respect to prong three, E.W. claims that the trial judge failed to recognize the "rehabilitative nature of jail," or the fact that "[E.W.] was working while in jail." E.W. adds that the record is "without evidence" to show that E.W. actually received notices of scheduled appointments for substance abuse and psychological evaluations.

In addressing prong three, the trial judge noted that the Division repeatedly urged E.W. to attend substance abuse assessments and psychological treatment services but that E.W. was "virtually non-complian[t] for every single referral." The court also explained that with respect to alternatives to termination, the Division exhaustively researched "potential relative resources" and that each resource was "ruled out for proper reasons."

N.J.S.A. 30:4C-15.1(c) defines "reasonable efforts" which consists of actions by the Division "to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure."

Provision of services under the third prong "contemplates efforts that focus on reunification," K.H.O., supra, 161 N.J. at 354, and "may include consultation with the parent, developing a plan for reunification, providing services essentially to the realization of the reunification plan, informing the family of the child's progress and facilitating visitation." N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 281 (2007). Here, the judge found overwhelming evidence respecting efforts made by DYFS both before and after the removal of the children to reunify the family and facilitate visitation. However, E.W. hardly ever participated in any of the visits and the record reveals that he visited J.J. only one time and that was on the occasion of her birth.

We agree that DYFS provided services to E.W. and his family, facilitated attempts to address A.J's and E.W.'s problems, both with substance abuse and psychological issues, and made repeated efforts to urge compliance, all of which were frustrated. E.W.'s citation to the rehabilitative nature of jail is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Under the last prong of the best interests standard, the question to be addressed is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents.'" K.H.O., supra, 161 N.J. at 355. The overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. If a child can be returned to the parental home without endangering the child's health and safety, the parent's right to reunification takes precedence over the permanency plan. A.W., supra, 103 N.J. at 607-09. The mere existence of a bond with the foster parent does not alone justify the termination of parental rights. K.L.F., supra, 129 N.J. at 44-45.

In meeting this prong, DYFS should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with the natural and foster parents. "[T]ermination of parental rights likely will not do more harm than good" where the child has bonded with foster parents in a nurturing and safe home. E.P., supra, 196 N.J. at 10 (citations omitted). Yet, DYFS "must show 'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).

E.W. challenges the trial judge's finding on prong four and claims that the Division "never conducted a bonding evaluation on either of the biological parents." It is meritless to suggest that the Division is obligated to conduct a bonding evaluation in this circumstance. Neither A.J. nor E.W. ever spent any significant time with either child and the record below is replete with un-rebutted testimony that the children are thriving in their foster homes. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with natural parents is not as strong," termination may be appropriate. K.H.O., supra, 161 N.J. at 363. A court must balance the two relationships and the question is whether the child will "suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents."

Here, the trial judge found on the basis of Dr. Kanen's report that E.W. suffers from "severe and chronic personality problems and that the child would be at great risk if placed in his custody." He added that the children have been in placement with the present caretakers virtually since birth and that there was a "close and nurturing relationship" between the children and their foster caregivers.

The trial judge, in finding that prong four was proved by clear and convincing evidence, relied on the opinions offered by the Division's experts. Each opined that the biological parents posed an unnecessary risk of harm to the children, were unable to parent the children and the prognosis would not change with time. Un-rebutted testimony also showed that the children's relationships with their foster home caregivers were strong and that the foster home caregivers were ready, willing and able to adopt the children. The proof regarding prong four of the statutory best interests test was clear and convincing.


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