NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. IN THE MATTER OF THE GUARDIANSHIP (2013)

Defendant S.A. (Sarah) appeals from a May 15, 2012 order terminating her parental rights to her son M.A. (Michael).¹  We affirm, substantially for the reasons stated by Judge Bernadette DeCastro in her insightful and cogent written opinion.

We briefly summarize the pertinent facts.   Michael, born in March 2008, is the biological child of Sarah and T.P.² At the time of Michael's birth, Sarah had four other children, and none of them were in her custody.   The hospital where Sarah delivered Michael referred Sarah to the Division of Youth and Family Services (Division) ³ after Sarah and Michael tested positive for cocaine.   The record indicates that Sarah received no prenatal care during the pregnancy.

The Division substantiated Sarah for neglect due to the positive drug tests and her admission that she had used cocaine during her pregnancy.   As a result, the Division removed Michael from Sarah's custody and placed him in foster care.   On March 28, 2008, the Family Part issued an order granting the Division care, custody, and supervision of Michael.

The Division offered a multitude of services to Sarah, but she failed to take advantage of them.   Specifically, the Division offered Sarah in-patient substance abuse treatment, out-patient substance abuse treatment, and visitation services.   She was negatively discharged from two in-patient substance abuse treatment programs and failed to consistently attend out-patient treatment.   Sarah tested positive for cocaine on multiple occasions, and alcohol on one occasion.   Sarah also missed numerous scheduled supervised visits with Michael.

The Division explored placing Michael with C.M. (Colin), Sarah's on-again-off-again boyfriend, and father of two of Sarah's other children.   During the course of the Division's involvement with Sarah, she gave birth to a third child of Colin's.

The Division permitted Michael to have overnight visits at Colin's home;  however, the visits were eventually terminated due to concerns for Michael's safety.   On October 20, 2010, a Division caseworker noticed scratches on Michael's face following an overnight visit at Colin's home.   On January 10, 2011, while visiting Colin's home, the caseworker observed that Michael “had deep cuts on his face.”   On March 14, 2011, when the caseworker arrived at Colin's home to pick up Michael, the caseworker noticed that Michael's nose was flat and swollen.   Colin informed the Division that Michael's injuries were the result of physical play with his half-brothers.   Colin downplayed the severity of the injuries and appeared generally unconcerned.

Due to Michael's various injuries following overnight visits, the Division substantiated Colin for neglect and ruled him out as a placement option.   Despite the Division notifying Colin that he could appeal the decision, he failed to do so.   The court terminated overnight visitation on May 11, 2011.

Throughout the Division's involvement, Sarah failed to obtain stable housing, which made it difficult for the Division to contact her.   She lied to the Division multiple times regarding where she was living.   On three separate occasions Sarah went missing for several months at a time.   The Division lost contact with Sarah from July 2008 until November 2009.   When asked why she had been out of contact with the Division, Sarah “stated that she was scared [,]” but gave no further explanation.   The Division then lost contact with Sarah until January 14, 2011, at which time she told the Division that she was scared and thought that her parental rights had already been terminated.   Sarah later went missing from June 2011 until October 2011.   When asked by the Division why she had been out of touch, Sarah replied that she “had to get away.”

After the court approved the Division's permanency plan, the Division filed a complaint seeking termination of Sarah's parental rights.   Judge DeCastro conducted a guardianship trial on May 10 and 11, 2012.   At the time of the trial, Michael had been living with his foster parent for four years.   The Division presented the testimony of an adoption worker, as well as the expert testimony of Frank J. Dyer, Ph.D., who had conducted bonding evaluations of Michael with Sarah, Michael with Sarah and Colin, and Michael with his foster parent.   Sarah did not present any witnesses.   She had indicated to her attorney that she wanted to testify, but failed to appear for trial.   The Law Guardian supported termination of Sarah's parental rights.

Following the trial, Judge DeCastro signed an order and issued a written opinion terminating Sarah's parental rights.   The judge concluded the Division proved by clear and convincing evidence that the best interests of Michael supported termination of Sarah's parental rights so that Michael could be adopted by his foster parent.

This appeal followed, with Sarah contending that the Division failed to prove prongs two through four of the best interests test.  N.J.S.A. 30:4C–15.1(a).   After a thorough review of the record, we are convinced that Sarah's arguments are without sufficient merit to warrant extended discussion.   R. 2:11–3(e)(1)(E).   We add only the following comments.

“Appellate review of a trial court's decision to terminate parental rights 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.N.H., 172 N.J. 440, 472 (2002) (citation and internal quotation marks omitted).   We are obliged to accord deference to the trial court's credibility determinations based upon the judge's opportunity to observe and hear the witnesses.  Cesare v. Cesare, 154 N.J. 394, 412 (1998).

A parent's right to enjoy a relationship with his or her child is constitutionally protected.  In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993).  “Parental rights, though fundamentally important, are not absolute.   The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children.”  In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

The best interests of the child standard set forth in N.J.S.A. 30:4C–15.1(a) is an effort to balance these interests.  Ibid. This statute provides that DYFS shall petition the court for termination of parental rights if the following four standards are met:

(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 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.

[N.J.S.A. 30:4C–15.1(a).]

“The four criteria enumerated in the best interest standard 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.”  K.H.O., supra, 161 N.J. at 348.   Because “determinations of parental fitness are ‘extremely fact sensitive,’ ” ibid. (quoting L.A.S., supra, 134 N.J. at 139), such considerations “require particularized evidence that address the specific circumstances in the given case.”  K.H.O., supra, 161 N.J. at 348.

In this case, the four prongs of the best interests test were proven clearly and convincingly by compelling evidence.   Sarah did not contest the trial judge's finding on prong one, as she had previously stipulated that she harmed Michael by her use of cocaine while pregnant with him.

On the second prong, we agree with Judge DeCastro that Dr. Dyer's uncontroverted expert testimony established that Sarah was unable and unwilling to eliminate the harm that initially led to Michael's removal.   As explained by Judge DeCastro:

According to Dr. Dyer, there was no evidence that [Sarah] has made a solid start at long-lasting recovery.   She still does not have stable housing or employment.   He diagnosed her with Axis I cocaine and alcohol dependence, questionable remission and cannabis dependence, by history․  On Axis II, he diagnosed her with a personality disorder with borderline, paranoid and antisocial features.   The implication of this psychological profile would be negative with respect to parenting capacity.

Dr. Dyer opined that her prognosis for sustained recovery from drug abuse was extremely poor in light of her history and attitude.

We note that the second prong can also be satisfied where “there is clear and convincing evidence that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of her bond with foster parents[.]”  K.H.O., supra, 161 N.J. at 337.   As explained by Judge DeCastro, Dr. Dyer's testimony established that Michael would suffer severe emotional harm if he were removed from his foster parent with whom he is “profoundly attached.”   Judge DeCastro credited Dr. Dyer's testimony that

[i]f [Michael] were removed from [his foster parent's] care and placed with [Sarah] assuming she could maintain sobriety and a stable lifestyle, he would be at risk of suffering long-term harm.

․

[T]ermination of [Sarah's] parental rights would cause no ill-effect but rather would be a relief to the child.

As to the third prong, the record contains clear and convincing evidence to support the judge's finding that the Division made reasonable efforts to provide services to Sarah.   As noted previously, the Division provided her with in-patient substance abuse treatment, out-patient substance abuse treatment, and visitation services.   Sarah failed to take advantage of these services.

The Division also explored placing Michael with Colin.   However, following overnight visits at Colin's home Michael had visible injuries.   Thus, the Division substantiated Colin for neglect and ruled him out as a placement option, a decision which he did not appeal.   The Division explored placing Michael with relatives of Sarah, but none were viable options.

Finally, there is compelling evidence to support Judge DeCastro's determination on the fourth prong that termination of Sarah's parental rights will not do more harm than good.   As stated by Judge DeCastro:

The caseworker testified that the child is doing extremely well in the care of his foster parent.   She is able to meet all of his needs.   Moreover, the child wishes to remain with his foster parent.   He does not desire to visit with any of his siblings.

In this case, Dr. Dyer testified that removing [Michael] from the care of his foster parent would cause severe and enduring harm.   According to his bonding evaluation, the foster parent is the only parental figure that this child has ever known.   Dr. Dyer further testified that removing him from the care of his foster mother would be traumatic and cause him severe and enduring harm.

Moreover, [Sarah] did not present any contrary evidence that a bond exists.

We find nothing in the record to contradict the judge's finding on the fourth prong.   Michael deserves stability and permanency, which can only be provided through adoption by his foster parent.   See K.H.O., supra, 161 N.J. at 357.

Affirmed.

FOOTNOTES

FN1. For purposes of this opinion, we have given fictitious names to the parties..  FN1. For purposes of this opinion, we have given fictitious names to the parties.

FN2. On March 13, 2012, T.P. voluntarily surrendered his parental rights of Michael to Michael's foster parent..  FN2. On March 13, 2012, T.P. voluntarily surrendered his parental rights of Michael to Michael's foster parent.

FN3. On June 29, 2012, the Governor signed into law A–3101, which reorganizes the Department of Children and Families, including the renaming of the Division as the Division of Child Protection and Permanency.  L. 2012, c. 16, eff.   June 29, 2012..  FN3. On June 29, 2012, the Governor signed into law A–3101, which reorganizes the Department of Children and Families, including the renaming of the Division as the Division of Child Protection and Permanency.  L. 2012, c. 16, eff.   June 29, 2012.

PER CURIAM