On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-68-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2012 -
Before Judges Graves and Espinosa.
Defendant Y.M. is the biological mother of Z.M. (Zach),*fn2
who was born prematurely on November 27, 2009. He weighed
five pounds, spent three weeks in the neonatal intensive care unit for
respiratory issues, and was later diagnosed with fetal alcohol
syndrome. Zach's biological father, C.G., voluntarily surrendered his
parental rights in November 2011. Defendant appeals from an order that
terminated her parental rights to Zach.
Termination of parental rights is warranted when the Division of Youth and Family Services (DYFS or the Division) establishes 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-15.1(a); N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010).]
Defendant argues that the Division failed to present clear and convincing evidence of prongs one, two, and four of the best interest test. In addition, although she does not contend that the Division failed to make reasonable efforts to provide appropriate services to her, she argues that the Division did not establish prong three by clear and convincing evidence because it failed to consider alternatives to the termination of her parental rights.
A trial court's decision to terminate parental rights is subject to limited appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). If supported by "adequate, substantial, and credible evidence in the record[,]" the trial court's findings of fact are entitled to deference. Ibid.; see also Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding.") The family court's decision to terminate parental rights will not be disturbed "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).
Judge George E. Sabbath carefully considered the criteria established in N.J.S.A. 30:4C-15.1(a) and cited adequate, substantial evidence in the record in an oral opinion to support his conclusion that each of the prongs had been proven by clear and convincing evidence. We affirm substantially for the reasons articulated in the trial court's opinion and summarize only the salient facts relevant to our analysis.
This case originated with a referral to the Division by a social worker at the hospital where Zach was born. The social worker reported that hospital staff had been concerned because defendant smelled like alcohol in the delivery room and admitted she drank alcohol while pregnant with Zach. As noted, Zach was later diagnosed with fetal alcohol syndrome.
DYFS workers thereafter interviewed and met with defendant both in the hospital and at her home. Defendant was uncooperative and hostile, stating that "she would not do anything in the manner the Division wanted."
From the time of Zach's birth on November 27, 2009, until his emergency removal on March 30, 2010, defendant was referred to a substance abuse evaluation and counseling, ordered to participate in parenting services and counseling, and was provided with homemaker services. She tested positive for alcohol and/or drugs on several occasions during this four-month period. She tested positive for marijuana and amphetamines on January 15, 2010 and tested positive for alcohol on January 23, 2010. On March 25, 2010, defendant arrived at her substance abuse program with Zach and under the influence of alcohol. She submitted to a breathalyzer test, which revealed that her blood alcohol content was 0.03%. As a result, on March 30, 2010, DYFS conducted an emergency removal pursuant to N.J.S.A. 9:6-8.29.
Defendant was admitted to Straight and Narrow's Mommy & Me Program on April 7, 2010. Defendant was discharged from this program on May 6, 2010 due to noncompliance. She was again referred to a substance abuse program in May 2010, but tested positive for alcohol once and drugs another time. Defendant ...