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

July 13, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
L.T.S., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF A.J.P. AND K.D.S.P., MINORS.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-103-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 23, 2012

Before Judges Axelrad, Sapp-Peterson and Ostrer.

L.T.S. (Leslie) appeals from an order entered April 27, 2011 following a three-day trial terminating her parental rights to her daughters, A.J.P. (Ally) born November 7, 2000, and K.D.S.P. (Kay) born October 10, 2002.*fn1 Leslie challenges the court's findings on each of the four prongs of the statutory test for termination of parental rights. N.J.S.A. 30:4C-15.1a(1), (2), (3) and (4). As we discern substantial credible evidence in the record to support Judge Robert P. Figarotta's decision terminating parental rights, we affirm.

I.

In summary, the trial in this case involved the disputed impact of Leslie's mental illness on her ability to serve as a parent for Ally and Kay, who themselves suffer from behavioral health issues. The children were removed from their mother's home in September 2007 and remained in DYFS's continuous custody thereafter. The Division's initial goal was reunification; it shifted to a plan for kinship legal guardianship in June 2009; and in June 2010, filed its complaint for guardianship. Leslie challenged the State's evidence regarding the seriousness and persistence of her mental illness; her inconsistent effort to address her mental illness; the adequacy of the Division's efforts to secure treatment and supports for her; and the balance between the undisputed harm the children would suffer from severing their strong attachment to their mother, with whom they both wished to live, and the benefit to them of terminating Leslie's parental rights and freeing them for adoption, the prospects of which were complicated by the children's behavioral health issues. We address the record evidence in the context of our evaluation of the four prongs.

Leslie raises the following points on appeal:

I. THE TRIAL COURT'S TERMINATION OF THE MOTHER'S PARENTAL RIGHTS WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND TESTIMONY AT TRIAL.

A. The Trial Court Erred in Finding that DYFS Had Demonstrated, By Clear And Convincing Evidence, That the Safety, Health or Development of the Children Had Been or Would Continue to be Endangered by the Parental Relationship with the Mother or that the Mother was Unwilling or Unable to Eliminate any Such Harm.

B. The Trial Court Erred in Failing to Adequately Consider Alternatives to Termination of Parental Rights.

C. The Trial Court Erred in Concluding that DYFS Had Demonstrated, by Clear and Convincing Evidence, that the Termination of the Mother's Parental Rights Would Not Do More Harm Than Good.

The Law Guardian also seeks reversal of the court's judgment, arguing the Division failed to satisfy prongs two, three and four; specifically regarding prong three, the Law Guardian argues the court failed to consider kinship legal guardianship (KLG) as an alternative to termination of parental rights.

II.

Our scope of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We defer to the trial judge's factual findings based on the judge's familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We will affirm the Family Part's decision to terminate parental rights when substantial, credible evidence in the record supports the court's findings. E.P., supra, 196 N.J. at 104.

The Division bears the burden to establish by clear and convincing evidence four prerequisites to terminating parental rights:

(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) [DYFS] 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-15.1a.]

See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986). These four, often overlapping elements, "provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). A parent's right to raise his or her child is constitutionally protected. Id. at 346. However, that right may be terminated upon a showing by clear and convincing evidence that the child is at risk of serious and lasting future harm under the four-prong statutory test. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

A.

To meet the first prong of the termination statute, the State must show a harm that threatened the child's health and that it will likely have continuing deleterious effects on the child. K.H.O., supra, 161 N.J. at 348. "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harm arising from the parent-child relationship over time on the child's health and development." Ibid. The absence of physical abuse or neglect is not conclusive; the court also must consider the potential for serious psychological damage. A.W., supra, 103 N.J. at 605; N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002); In re Guardianship of R.G. & F., 155 N.J. Super. 186, 194 (App. Div. 1977).

"A parent's withdrawal of solicitude, nurture, and care for an extended period is in itself a harm that endangers the health and development of the child." In re Guardianship of DMH, 161 N.J. 365, 379 (1999). The "relevant inquiry focuses on the cumulative effect, over time, of harms arising from the home life provided by the parent." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 289 (2007).

Judge Figarotta found the Division satisfied prong one by proving generally that Leslie provided a "marked lack of supervision" of her children, and specifically, that Leslie left Ally and Kay home alone for several days in June 2007. We are ...


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