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New Jersey Division of Youth and Family Services v. H.R.

Superior Court of New Jersey, Appellate Division

June 10, 2013

H.R. and N.B., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF E.B., a minor

Submitted May 6, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-70-11.

Joseph E. Krakora, Public Defender, attorney for appellant H.R. (Richard Sparaco, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant N.B. (Thomas Hand, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Elizabeth S. Sherwood, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Katherine J. Bierwas, Designated Counsel, on the brief).

Before Judges Ashrafi, Espinosa and Guadagno.



Defendants H.R. (the mother) and N.B. (the father) appeal from the judgment of the Chancery Division, Family Part, terminating their parental rights to their daughter, now six years old. Both defendants challenge the sufficiency of evidence to meet all four subparts of N.J.S.A. 30:4C-15.1(a) for termination of parental rights.

We consolidated their appeals and have reviewed the record. The Family Part had sufficient evidence to support its findings and conclusions as to most of the requirements of the statute, but an error occurred during the proceedings that warrants clarification by the court and further consideration by the caretaker parents of a potential alternative to adoption. DYFS gave legally incorrect information to the prospective adoptive mother, the child's maternal aunt, about the potential option of kinship legal guardianship instead of adoption of the child. The Family Part must correct the error and determine whether the caretaker parents still wish to adopt the child rather than agree to kinship legal guardianship. We reverse and remand for the Family Part to conduct a hearing and to make that determination.

Defendants' daughter was born in the summer of 2006. She was removed from their custody in October 2009 because defendants are drug addicts who endangered the safety of their child and did not provide a stable home for her. Over the next two years, defendants failed to treat their drug addiction or to provide a secure, nurturing home for their child. Despite the supervision and guidance of DYFS, they demonstrated virtually no willingness or ability to eliminate the risk of harm to the child.

A few months before the Family Part held a guardianship trial in October 2011, the father began to show some signs of improvement and a legitimate interest in establishing a healthier parental relationship. The mother never improved and gave no indication that she would. She did not attend the guardianship trial, although she was represented at the trial by designated counsel. The mother stopped seeing the child months earlier, and her whereabouts were unknown at the time of the trial.

The child has been under the care of her maternal aunt since May 2010 and has an opportunity now for permanent placement and stability. Were it not for the incorrect information that DYFS imparted to the aunt, we would not question the Family Part's decision that the best interests of the child require termination of defendants' parental rights so that the child can be adopted. However, because DYFS misled the aunt about kinship legal guardianship, and because the aunt favors a continuing relationship between the child and at least the child's father, provided he is "clean, " the evidence is insufficient to conclude that no alternative to termination of parental rights is available that will serve the child's best interests.

The applicable statute, N.J.S.A. 30:4C-15.1(a), provides that parental rights may be terminated when:

(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 for 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.

The four subparts of the statute are "not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The Family Part's inquiry is extremely fact-sensitive. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). DYFS bears the burden of proving all four statutory criteria by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007).

As an appellate court, we do not weigh the evidence as if we must make an initial decision. We defer to the trial court's findings of fact and the conclusions of law that are based on those findings. Id. at 605; N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.Super. 418, 433 (App. Div. 2009). We accord deference to the trial judge because she had the opportunity to "make first-hand credibility judgments" and to gain a "feel of the case" over time, thus supporting a level of factual familiarity that cannot be duplicated by an appellate court reviewing a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293). We also defer to the trial court's assessment of expert evaluations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).

In E.P., supra, 196 N.J. at 104, the Supreme Court said: "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." Accord In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605). Here, the family court's conclusions were not wide of the mark, and we do not make our own findings. Rather, our task is to assure that the statute was applied correctly in all respects.

Defendants contend the judgment should be reversed because the evidence did not satisfy any of the four criteria of N.J.S.A. 30:4C-15.1(a). With respect to the first criterion, they assert the child was never harmed physically and that DYFS presented no evidence of psychological harm.

To establish the first subpart of the statute, DYFS "must prove harm that 'threatens the child's health and will likely have continuing deleterious effects on the child.'" N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 25 (2013) (quoting K.H.O., supra, 161 N.J. at 352). "[T]he best interests standard does not concentrate on a single or isolated harm or past harm as such. . . . [T]he focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986)). Although drug use alone is not enough to ...

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