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New Jersey Division of Youth and Family Services,*Fn1 v. R.S

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 30, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,*FN1 PLAINTIFF-RESPONDENT,
v.
R.S., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF K.N.J. AND S.J.S., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-60-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 11, 2012 -

Before Judges Grall, Simonelli and Accurso.

Defendant R.S., the biological mother of S.J.S., born in October 2007, and K.N.J., born in October 2008, appeals from the December 14, 2011 judgment of guardianship, which terminated her parental rights to the children. On appeal, defendant contends that plaintiff New Jersey Division of Youth and Family Services (the Division) failed to establish the four prongs of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. We disagree, and affirm.

The record reveals that defendant became involved with the Division after S.J.S.'s birth in 2007, due to her drug addiction. During her involvement with the Division, defendant denied she had an addiction, refused to attend a drug treatment program, and failed to complete parenting skills classes, maintain regular contact with the Division, and obtain stable housing and employment. Defendant also has mental health issues and failed to take her prescribed psychiatric medication. The court suspended her visitation with the children in January 2010, due to her continued drug use, non-compliance with services, and failure to take her psychiatric medication.

Following a trial, Judge Sabbath set forth extensive factual findings in a December 14, 2011 oral decision. He concluded that the Division met all four prongs of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. Regarding the first and second prongs, the judge found that the children were harmed by defendant's drug use and their removal and placement in foster care, and defendant's continued drug use placed the children at a significant risk of harm. He also found that the suspension of defendant's visitation constituted a "prolonged inattention to the children," which also harmed them. The judge determined that defendant was unwilling to eliminate the harm and could not provide a safe and stable home for the children because she continued using drugs, refused to attend a drug treatment program, and was non-compliant with her psychiatric medication. The judge concluded that the delay in permanent placement would add to the harm because, except for a brief and unsuccessful reunification with S.J.S., the children were in foster care since they were born.

Regarding the third prong, Judge Sabbath listed the numerous services the Division provided to defendant, including psychological evaluations, psychiatric treatment,*fn2 visitation, drug assessments, several drug treatment programs, counseling programs, transportation, and parenting skills classes.*fn3 He found that defendant was "virtually non complaint" with each service, and emphasized that the Division's effort to provide services to defendant was "virtually [H]erculean."

Judge Sabbath rejected defendant's claim that the Division failed to assist her with housing and employment, concluding that defendant's continued drug use and non-compliance made it "impossible" for the Division to do so. Because defendant said she would not attend any drug treatment program, the judge also rejected her claim that the Division should have offered her a drug treatment program outside of Paterson. The judge further concluded that the Division explored, and properly rejected, the relative resources defendant had identified, and there were no alternatives to termination of parental rights.

Regarding the fourth prong, based on the undisputed expert evidence Judge Sabbath concluded that defendant's drug addiction, psychiatric issues, and refusal to attend a drug treatment program and take her psychiatric medication rendered her unable to ever safely parent the children in an unsupervised capacity. The judge found that the children were with a foster parent who was meeting their special needs and wanted to adopt them.*fn4 The judge concluded that the children needed permanency, and the termination of defendant's parental rights would not do them more harm than good and would be in their best interests. This appeal followed.

On appeal, as to the first and second prongs defendant argues that Judge Sabbath exaggerated the nature and extent of her drug problem; discounted her efforts to address the problem and her willingness to seek treatment outside of Paterson; and ignored that she had been drug-free for several months prior to trial and was willing to undergo random urine screens. She also argues that the judge erred in concluding that she was inattentive to the children based on the suspension of her visitation.*fn5

As to the third prong, defendant argues that the Division failed to consult her about a drug treatment plan or provide a program outside of Paterson, and failed to provide psychiatric services and inquire whether there were additional relative resources. As to the fourth prong, defendant argues that the judge erred in relying on the expert evidence and ignored evidence favorable to her. She also argues that absent bonding evaluations the judge erred in concluding that termination would not do the children more harm than good.

Our Supreme Court has established the standard of review in parental termination cases:

Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family. . . . We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision to terminate parental rights. [N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012) (internal quotation marks and citations omitted).]

A court should terminate parental rights when the Division shows by clear and convincing evidence that:

(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 [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 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.]

These "four prongs are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." F.M., supra, 211 N.J. at 448 (internal quotation marks and citations omitted).

The Division need not demonstrate actual harm in order to satisfy the first prong. 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). "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). The test is whether the child's safety, health or development will be endangered in the future and whether the parent is or will be able to eliminate the harm. A.G., supra, 344 N.J. Super. at 440.

The second prong focuses on whether the parent is able to remove the danger facing the child. F.M., supra, 211 N.J. at 451. The inquiry is whether the parent is unable to provide a stable and protective home for the child. Ibid.

The first and second prongs are satisfied where the parent is addicted to drugs and has mental health issues, both of which he or she refuses to treat. Id. at 450-51; N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 245 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011); In re Guardianship of K.H.O., 161 N.J. 337, 353 (1999).

The third prong "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. As part of this inquiry, "the court must consider the alternatives to termination of parental rights and whether the Division acted reasonably." A.G., supra, 344 N.J. Super. at 434-35.

The fourth prong focuses on whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1a(4). This prong "'serves as a fail-safe against termination even where the remaining standards have been met.'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007)). "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." Ibid.

"The strong public policy of New Jersey favors permanency of child placement." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 116 (App. Div.), certif. denied, 180 N.J. 456 (2004). See, e.g., N.J.S.A. 30:4C-11.1. This court has previously found that

[c]hildren must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement. In response to the reforms resulting from the Federal Adoption and Safe Families Act of 1997, the emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being. A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement. [N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209-10 (App. Div.) (internal quotations, editing marks and citations omitted), certif. denied, 192 N.J. 293 (2007).]

"The question to be addressed . . . is whether . . . the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents." K.H.O., supra, 161 N.J. at 355. Because of the inherent risk to children stemming from termination of parental rights, "the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid. Rather, the court's inquiry is one of comparative harm, for which the court must consider expert evaluations of the strength of the child's relationship to the biological parents and the foster parents. Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 25 (1992)). Thus, to satisfy this prong, the Division should, "offer testimony of a 'well qualified expert who has had full opportunity to make a comprehensive, objective and informed evaluation' of the child's relationship with both the natural parents and the foster parents." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (quoting J.C., supra, 129 N.J. at 19). In limited and rare circumstances, however, a comparative bonding analysis may not be required. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009).

We have considered defendant's arguments in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We conclude that Judge Sabbath applied the correct legal standards to the facts he found in ultimately concluding that the Division satisfied all four statutory prongs by clear and convincing evidence and that termination was required. Accordingly, we affirm substantially for the reasons expressed by Judge Sabbath in his comprehensive and well-reasoned oral opinion rendered on December 14, 2011. However, we make the following brief comments.

Defendant never parented K.N.J., only briefly, and unsuccessfully, parented S.J.S., and has had no contact with the children since January 2010. The children were placed in their current foster home approximately seven months before the trial commenced. The caseworker testified that the children's needs were being met, and the foster mother had committed to adopt both children, who are doing well in the foster mother's care.

In addition, defendant has not overcome her drug addiction and mental illness and has failed to provide a stable and permanent home for the children. This case presents the limited circumstances where a comparative bonding analysis would not have been useful. A.R., supra, 405 N.J. Super. at 440. The evidence establishes clearly and convincingly that despite the absence of bonding evaluations, the termination of defendant's parental rights to the children will not cause them more harm than good and is in their best interests.

Affirmed.


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