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Division of Youth and Family Services v. N.R


August 10, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-61-10.

Per curiam.



Submitted June 5, 2012 -

Before Judges Yannotti, Espinosa and Kennedy.

Defendant N.R. appeals from the Family Part's judgment of April 11, 2011, terminating his parental rights to his son, N.Q.*fn1

N.R. contends that the statutory requirements of N.J.S.A. 30:4C-15.1 were not proven by clear and convincing evidence and that the trial court erred in not granting kinship legal guardianship of the child to a relative, A.A., pursuant to the Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7. After reviewing the record in light of the contentions advanced on appeal, we affirm substantially for the reasons stated by Judge George E. Sabbath in his opinion from the bench. The findings are "based on clear and convincing evidence supported by the record," and the legal conclusions are sound. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004).


N.Q. was born in Florida on May 9, 2006, to S.B. and N.R. On August 22, 2008, the Division of Youth and Family Services (DYFS or the Division) received a referral from Florida's Child Protective Services advising that N.R. was relocating to New Jersey with N.Q., and expressing concern about N.R.'s ability to parent the child in view of the child's health issues and N.R.'s substance abuse history. N.R. admitted at trial that he had used cocaine in Florida while caring for N.Q., and that he had used cocaine "just before" he relocated to New Jersey.

N.R.'s parenting abilities were of particular concern to DYFS because N.Q. suffers from Type 1 diabetes and asthma, requiring twenty-four hour care. The child receives insulin at least twice a day, must be closely monitored and is classified as medically fragile.

Child Protective Services in Florida provided the Division with its files and records pertaining to the family and requested a home assessment. Accordingly, a Division family service specialist met with N.R. in late August 2008 at the home of N.R.'s sister, where N.R. was living with N.Q. N.R., who was forty-seven years of age at the time, told the Division representative that he had started using cocaine when he was nineteen years of age and that he had consistently used marijuana, as well.

The Division representative had an extensive discussion with N.R. about obtaining housing, enrolling in a substance abuse program, and arranging for social services. The Division thereafter succeeded in getting N.R. enrolled into the substance abuse program at Passaic Alliance, assisted him with housing and arranged for N.Q.'s placement in a specialized daycare facility so that N.R. could seek employment.

DYFS closed its case in December 2008 after it determined that N.R. appeared to be dealing with his drug addiction, had safe and secure housing for himself and N.Q., and was appropriately caring for N.Q. It also appeared to DYFS that N.Q. was alert and active and had a loving relationship with N.R.

However, on April 27, 2009, DYFS received another referral about N.R. and N.Q. N.R.'s brother contacted DYFS and advised that N.R. had relapsed into drug abuse and that N.Q. was frequently absent from daycare. Consequently, DYFS re-opened its case and initiated an investigation.

DYFS learned that N.Q. was now living with N.R.'s niece, A.A., where N.R. had left the child. N.R. could not be located, appeared to no longer have housing, and according to representatives at N.Q.'s daycare facility, N.R. at times appeared at the facility "under the influence" and became disruptive. The daycare representatives further advised that after they indicated to N.R. that they had run out of N.Q.'s diabetes testing strips, N.R. told them they no longer had to test N.Q. Nonetheless, the daycare facility purchased the testing strips to enable its staff to appropriately monitor the child's sugar levels.

On May 6, 2009, DYFS effected an emergency Dodd removal of N.Q. and placed him with A.A., who had the child's medication and clothing.*fn2 DYFS substantiated N.R. for neglect because his substance abuse put N.Q., a medically fragile child, at risk.

N.R. was later found at a shelter facility and DYFS learned that N.R. had lost his apartment because he had stopped paying rent after his temporary rental assistance ceased. DYFS referred N.R. for substance abuse treatment at the Challenge Program and for a psychological evaluation.

Dr. Stephen Daniel, a psychologist, examined N.R. and reported that he was a substance abuser and suffered from a personality disorder. Dr. Daniel recommended that N.R. attend substance abuse counseling, parenting classes, vocational training and psychotherapy.

At this time, DYFS's intent was to provide services to N.R. and to work toward his reunification with N.Q. Visitation between N.R. and N.Q. went well at first. Also, N.R. began the Challenge Program in July 2009 for substance abuse treatment, individual therapy and parenting skills. However, by August 2009 DYFS started noticing changes in N.R.'s behavior. N.R. would show up late for, or cancel, visits with N.Q. or he would sleep during visitation sessions. He lost weight and Division personnel noted that he used their bathroom to bathe. He also failed to appear for random urine screens, and when he did appear for the screens in February, March, April and May 2010, he tested positive on each occasion for cocaine. N.R. confirmed that he had relapsed and he was referred for treatment once again.

By April 7, 2010, the Division caseworker noted that the permanency plan changed to termination of N.R.'s parental rights because it appeared "impossible" that N.R. would ever be able to provide long-term care for N.Q. Also, it appeared that N.Q. had become "very attached" to A.A. and her children and that A.A. competently addressed and monitored N.Q.'s health care needs.

A.A. explained that N.Q. required constant care and that she spent significant time monitoring N.Q.'s blood sugar levels and adjusting his intake of insulin. She stated that he had to be checked several times each day for symptoms of abnormal blood sugar and that his diet had to be carefully regulated.

N.R.'s family concluded he was not able to care for N.Q. any longer and proposed that N.R.'s aunt in Puerto Rico might be the best choice to adopt N.Q. The court authorized N.Q.'s transfer to the aunt in Puerto Rico, but by December 2010 the Division concluded that she would not be able to provide good, long-term care for N.Q. and brought him back to New Jersey. At that point, A.A. sought responsibility for N.Q. and committed to adopting him. The Division did not discuss kinship legal guardianship with A.A., concluding that adoption is a "more permanent plan" and more appropriate given the child's age.

When N.Q. returned from Puerto Rico, visitation with N.R. was not reinstated because N.R. had not enrolled in a drug treatment program. N.R. failed several times to appear for a substance abuse assessment and, after he eventually submitted to the assessment, he refused to accept the recommendation for inpatient drug treatment.

He also failed repeatedly to appear at appointments for a court-ordered psychological evaluation. At the time of trial, N.R. was living in a room that was not appropriate for a child and claimed he was working "under the table" at a construction job. He conceded that he had relapsed into drug abuse and claimed he was suffering from depression.

On April 11, 2011, following trial, Judge Sabbath rendered his decision terminating N.R.'s parental rights to N.Q. finding that DYFS had proved all the elements required by N.J.S.A. 30:4C-15.1 by clear and convincing evidence.

This appeal followed.


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." P.P., supra, 180 N.J. at 511. 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.'" N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)), aff'd in part, modified in part and remanded, 179 N.J. 264 (2004) certif. denied, 186 N.J. 603 (2006). 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 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 & 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, N.R. claims the trial judge erred in his fact finding when he "cited multiple removals of the child as a prong one harm" and stated that N.R. "was unable or unwilling to address the drug issue." N.R. claims that N.Q. was not subject to "numerous placements" and that he is "now desirous of working on the drug problem." These arguments are without merit.

Judge Sabbath noted that N.R. "came to the State of New Jersey an acknowledged drug addict, [and] placed [N.Q.] with relatives." DYFS thereafter provided housing and social services assistance to N.R. so that he could retain custody and care of N.Q. N.R. later relinquished custody of N.Q. to a relative while he pursued his drug habit, and caused the Division to seek an emergency Dodd removal of N.Q. The Division later acceded to the family's wishes by placing N.Q. with a relative in Puerto Rico and, when that relative proved unequal to the task, N.Q. was placed again with A.A., who wants to pursue adoption of the child.

With regard to N.R.'s conceded drug problem, Judge Sabbath explained that "a child in the custody of a person addicted to drugs faces significant risk, especially a child who has a medical fragility as [in] this case." He added that one who is addicted to drugs "would not be able to evaluate the child, medicate the child, and assemble the necessary resource[s] [to care for the child]." The judge's findings were supported by clear and convincing evidence.

This finding also addresses the second prong of the best interests standard. 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. The second prong focuses on parental unfitness and overlaps with the proofs supporting the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

Parental unfitness 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 & 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).

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. See N.J. Div. of Youth & 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 (reaffirming the long-standing principle that birth parents should only have a limited time to eliminate the harm facing their child). The proofs under the second prong were clear and convincing.

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 & 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).

N.R. appears to contend that the Division did not meet this prong because it did not consider the alternative of kinship legal guardianship for N.Q. However, because A.A. has volunteered to adopt N.Q., kinship legal guardianship is not a relevant option.

The Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7, (the Act) provides the type of legal guardianship for children "who cannot reside with their parents due to their parent's incapacity or inability" and does not terminate parental rights. Senate Budget and Appropriations Committee, Statement to Senate Bill No. 1813 (June 25, 2001), reprinted in N.J.S.A. 3B:12A-1. The statute was adopted because the Legislature found it necessary to add another alternative permanent placement option, beyond custody, where adoption is neither feasible nor likely. N.J.S.A. 3B:12A-1(c); N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127, 135 (App. Div. 2011).

Here, the Division caseworker and A.A. both testified at trial that N.Q. is thriving in the care of A.A., a parental relative, and that she is willing to adopt N.Q. In addressing this issue, Judge Sabbath stated that A.A.'s adoption of N.Q. is "both feasible and likely" and "no other arrangement, for example, such as [kinship legal guardianship] can provide the requirement of safety and permanency that this particular case requires." Because adoption was both feasible and likely, Judge Sabbath appropriately ruled out kinship legal guardianship for N.Q. and termination of parental rights was the proper remedy.

N.R. challenges the trial judge's finding on prong four and claims that the Division never conducted a bonding evaluation. It is meritless to suggest that the Division is obligated to conduct a bonding evaluation in this circumstance. N.R. is patently unfit to care for N.Q., given the facts adduced at trial, and the record is replete with unrebutted testimony that N.Q. is thriving in the home of A.A. and her family. Such circumstances are proper considerations in determining whether termination is 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." Id. at 355.

Judge Sabbath did not abuse his discretion in proceeding without a bonding evaluation. Relying on the testimony of a DYFS caseworker, Judge Sabbath stated,

[A] bonding evaluation is not required in this case. This is a case where the incapacity of the parent is the issue, and not a comparison of attachment or bonding between parent or foster parent . . . . [A.A.'s] attention to [N.Q.'s] medical needs [is] only exceeded by the close and nurturing relationship between the child, [A.A.] and her family . . . .

We agree with Judge Sabbath that a bonding evaluation was not required in this case. The evidence of N.R.'s unfitness and the resultant harm to N.Q. was particularly strong, and in comparison, the factual evidence that the child was much safer and thriving in A.A.'s home was also clear. "When a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and when the child has bonded with foster parents who have provided a nurturing and safe home, in those circumstances termination of parental rights likely will not do more harm than good." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). A child's need for permanency and stability is an important consideration. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007).

There was clear and convincing factual evidence in the record to conclude that N.Q. would not suffer more harm than good from termination of N.R.'s parental rights. The judgment terminating N.R.'s parental rights to N.Q., given the facts established clearly and convincingly at trial, is not flawed by the absence of an expert's bonding evaluations.


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