Opinion
DOCKET NO. A-2509-09T3
01-18-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. D.M., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF D.M., A Minor.
Kenneth J. Rosellini argued the cause for appellant. Jane S. Blank, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Blank, on the brief). Nancy E. Scott, Assistant Deputy Public Defender, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Scott, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Fisher and Nugent.PER CURIAM
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-56-09.
Kenneth J. Rosellini argued the cause for appellant.
Jane S. Blank, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Blank, on the brief).
Nancy E. Scott, Assistant Deputy Public Defender, argued the cause for minor (Joseph
E. Krakora, Public Defender, Law Guardian, attorney; Ms. Scott, on the brief).
This appeal concerns D.M.'s future. C.M. gave birth to D.M. (hereafter "the child") on March 11, 2007; the child and his mother tested positive for cocaine at the time of the child's birth. C.M. later surrendered her parental rights. The parental rights of the child's father, defendant D.M. (hereafter "defendant"), were terminated at the conclusion of a five-day trial.
C.M. gave birth to two other children. Her oldest reached the age of majority by the time this suit was filed and is no longer in his parents' care. Her daughter, Carolyn (a ficitious name), was born in 1998. Carolyn's father is defendant's twin brother.
In this appeal, defendant contends the Division of Youth and Family Services (the Division) failed to sustain its burden of proving all four prongs of the statutory test contained in N.J.S.A. 30:4C-15.1a, which govern the court's power to terminate parental rights. The Law Guardian argues the Division failed to sustain its burden of proof regarding the third and fourth prongs, chiefly contending that the trial judge mistakenly declined to grant kinship legal guardianship (KLG) to the child's paternal grandmother, L.M., who also exercises KLG over Carolyn. We find no merit in those arguments and affirm.
We preface our examination of these issues by adverting to the well-accepted constitutional principles that an individual's rights to conceive and raise children have been deemed "essential," Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042, 1045 (1923), "basic civil rights," Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct. 1110, 1113, 86 L. Ed. 1655, 1660 (1942), "far more precious . . . than property rights," May v. Anderson, 345 U.S. 528, 533, 73 S. Ct. 840, 843, 97 L. Ed. 1221, 1226 (1953). See generally Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). Yet, the state "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979). That is, "the right of parents to be free from governmental intrusion is not absolute," and the state "as parens patriae may act to protect minor children from serious physical or emotional harm"; the invocation of that power may, at times, permit "a partial or complete severance of the parent-child relationship." A.W., supra, 103 N.J. at 599 (quoting In re Dep't of Pub. Welfare, 421 N.E.2d 28, 36 (Mass. 1981)). Every case is fact-sensitive. N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 287 (2004). And each contest between a parent's natural and constitutional rights and the state's interest in the child's welfare requires "scrupulous adherence" to the procedural safeguards adopted by our Legislature. Id. at 286; see also N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 109 (App. Div. 2010).
Once a trial court has determined to terminate parental rights, our power to intervene is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," we only intervene when findings "are so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
In determining whether to terminate parental rights, the trial court must employ the four-prong test set forth in N.J.S.A. 30:4C-15.1a, which requires that the Division prove by clear and convincing evidence:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;See also A.W., supra, 103 N.J. at 604-11.
(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 . . .;
(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.
This four-prong test is "extremely fact sensitive" and requires particularized evidence that addresses the specific circumstances in a given case. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The prongs are not separate and discrete but "interrelated and overlapping." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). The inquiry focuses not only on whether a parent is fit but also whether the parent "can become fit within time to assume the parental role necessary to meet the child's needs." Id. at 87.
We find insufficient merit in defendant's arguments regarding the first and second prongs to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We only briefly observe with regard to these two prongs that the record abundantly demonstrated that defendant failed to obtain or maintain stable employment and was unable or unwilling to secure adequate housing for the child. He refused for several months to comply with the Division's reasonable request and the trial court's order that he submit to hair follicle drug testing even when his right to visitation hung in the balance. In addition, the judge relied on the Division's expert, Dr. Alice S. Nadelman, who concluded that defendant would "not be physically or psychologically able to take care of his son for the foreseeable future." Indeed, defendant's own expert, Dr. Marc Friedman, reached a similar conclusion, expressing an opinion that he did "not believe [defendant] has the maturity or judgment to raise a child." In his thorough findings of fact, the trial judge properly reached the conclusion that these circumstances clearly and convincingly demonstrated that defendant had exposed the child to a substantial risk of harm and defendant was unable or unwilling to eliminate that harm.
When defendant finally submitted to hair follicle drug testing months after it was sought, he tested positive for cocaine.
Defendant also contends the Division failed to make reasonable efforts to provide services to him. We find this argument to be meritless. R. 2:11-3(e)(1)(E). The Division provided a psychological evaluation, parenting classes and substance abuse treatment. Services were offered to assist defendant in obtaining housing and employment. That these efforts largely failed to bear fruit is not the test. See In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999). Indeed, defendant alone stood in the way of his obtaining employment or a suitable home, making it clear to the Division's caseworker that he "could get his own work when he chose to," and that he had funds available to secure housing.
The more colorable argument is that asserted by both defendant and the Law Guardian with regard to the third prong --that the evidence should have compelled the trial judge to grant KLG of the child to his paternal grandmother, who also exercised KLG guardianship over Carolyn, the child's half-sister. In this regard, it has been recognized that the Division is under no obligation to seek the termination of parental rights if "[t]he child is being cared for by a relative and a permanent plan for the child can be achieved without termination of parental rights." N.J.S.A. 30:4C-15.3(a); see N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 400 (2009). But, as our Supreme Court has recognized, the Legislature created the KLG option
to bring stability, reliability and consistency to a family care system for children whose parents are unable to care for them; it was not meant to be a substitute for the permanency of adoption but, rather, to provide as much permanency as possible when adoption is not feasible or likely and a relative is willing to care for the child until he or she reaches eighteen or finishes secondary school.KLG is not, as defendant and the Law Guardian would have us hold, a safe haven to allow unfit parents additional time to better their circumstances and remove the impediments to reunification. Ultimately, the goal is the child's best interests, which bespeak a permanent solution, not a temporary fix. In short, as we have held, "a child is not chattel in which a parent has an untempered property right" and the child's right to permanency "cannot be held prisoner of the rights of others, even those of his or her parents." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 110-11 (App. Div.), 180 N.J. 456 (2004).
TN.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 510 (2004).]
Here, the child has been in the custody of his paternal grandmother for most of his life, having been placed with her when he was five months old, and has bonded with her. Although it is true that the paternal grandmother expressed a preference for KLG -- apparently motivated by a desire to preserve defendant's parental rights -- she also expressed a willingness to adopt, as the trial judge found. Those facts support the trial judge's rejection of KLG in this case, a finding that our standard of review precludes us from second-guessing even though, as we have noted, Carolyn remains in the paternal grandmother's custody pursuant to KLG. Because the child's half-sister is in the custody of the paternal grandmother pursuant to KLG does not require that the child in question be given the same status. Each child's placement turns on the facts of their own particular situation.
The Law Guardian contends that the paternal grandmother's desire to adopt was prompted by the possibility that the child would be placed with strangers were she to take some other position regarding adoption. We find no evidence of this; indeed, the paternal grandmother testified that she was not forced to come to that conclusion.
We lastly find no merit in the contention of both defendant and the Law Guardian that the evidence was insufficient to support a finding in favor of the Division on the fourth prong. In concluding that termination of defendant's parental rights will not do more harm than good, the judge summarized the circumstances that demonstrated the strong bond between the child and the paternal grandmother and defendant's unfitness to care for the child:
[The child's] grandmother has provided a safe and stable home and can satisfy the need for permanency. There has not been offered any credible evidence to indicate that [defendant] is able to provide even a minimal degree of parental care. First, he has no job, nor is there any indication when he could return to work. He claims to be disabled from [a] hernia. However, at the
same time, he talks about getting a job and starting to work for a cable company. Secondly, he told Dr. Nadelman he is so ill he could not read the questions on one of the psychological tests. Yet he requested a longer break during the test to go outside and change the tire on [a] car of a lady he did not know. Third, he has never had the responsibility of solely caring for his son. He admitted he could not do so, his mother acknowledged he could not, his twin brother said he could not, the child's mother said he could not, Dr. Nadelman said he could not, even his own expert Dr. Friedman, agrees that he does not have the maturity or judgment to raise a child.
. . . .
[Defendant] does what he wants and when he wants and then spends more time justifying why what he did was right. He has problems with every system he has in life. He has a distorted reality, everyone else is wrong. He has a distorted world view. He takes no responsibility and spends his resources on arguing his way is right and everybody else is wrong.
The conclusion reached by Dr. Nadelman is that [defendant] has not demonstrated the capacity to provide safe, stable and consistent care for his son. He has not shown the capacity to meet the child's needs in the future. What is needed in the life of the child is permanency.
. . . .
The evidence substantiates the bonding between the child and his grandmother. She has provided a safe and nurturing home. The child should not be required to languish indefinitely while his father will most likely not reach an appropriate level of parenting skills. None of the experts has
predicted that this is probable at any time in the future.
These findings are fully supported by the evidence and justified the judge's determination that the fourth prong was established by clear and convincing evidence. In coming to these and other conclusions, which amply support his finding on the fourth prong, the trial judge had the advantage of observing the witnesses and judging their credibility. These findings are, therefore, entitled to our deference.
Affirmed.