N.J. SUPERIOR COURT, APPELLATE DIVISION

New Jersey Division of Youth and Family Services v. L.J.D.

FAMILY LAW — Termination of Parental Rights

New Jersey Law Journal

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New Jersey Division of Youth and Family Services v. L.J.D., A-5896-10T3; Appellate Division; opinion by Lihotz, J.A.D.; decided and approved for publication October 17, 2012. Before Judges Messano, Lihotz and Ostrer. On appeal from the Chancery Division, Family Part, Essex County, FG-07-95-10. [Sat below: Judge Bernstein.] DDS 20-2-8000 [55 pp.]

Fourteen-year-old L.J.D. (Lela) was placed in the care and custody of the Division of Youth and Family Services after allegations of neglect and sexual and physical abuse by her psychiatrically impaired mother and her mother's paramour. She gave birth to A.T.D. (Alvin), the next day. As a result of her custodial status, DYFS assumed custody of Alvin at birth.

After extending services to Lela over the ensuing years, DYFS concluded she was not able to provide safe and stable care for Alvin and filed a complaint seeking guardianship and the termination of parental rights for the purpose of consenting to his adoption.

Lela appeals from the judgment terminating her parental rights. She principally argues she never harmed Alvin and DYFS failed to make reasonable efforts to provide her available services to help correct the circumstances that led to his placement with a resource family.

Held: DYFS' burden to make reasonable efforts to provide services aimed at reunification is a heightened one because of the child-parent's young age. The trial court properly found that it satisfied that burden. The trial court's findings that clear and convincing credible evidence satisfied the four statutory prongs necessary for termination of a parent's rights are upheld and the award of guardianship predicated on those findings is affirmed.

The panel begins with a comprehensive recitation of the facts leading to DYFS' filing for guardianship. It then recites the standards generally considered when reviewing judgments entered following a bench trial. Turning to the legal principles guiding consideration of a judgment terminating parental rights, the panel notes that parents have a constitutionally protected interest in raising their biological children but that the paramount concern remains the child's health and safety. Children must be protected from serious physical and emotional injury and a court may examine whether it is in the child's best interest to sever the parent-child relationship. The best-interests standard, codified in N.J.S.A. 30:4C-15.1a, requires the state to establish each of four prongs by clear and convincing evidence before parental rights may be severed.

Under the first prong, DYFS must prove that the child's safety, health or development has been or will continue to be endangered by the parental relationship. Alvin was removed from Lela's custody solely because she was a minor in DYFS' custody and he too needed protection; Lela did not affirmatively cause harm to him resulting in his removal. However, the absence of physical abuse or neglect is not conclusive. Emotional or psychological harm can constitute injury sufficient to authorize the termination of parental rights.

The panel says DYFS did not remove Alvin merely because Lela was young. Her psychological and psychiatric assessments from 2007 and 2008 vividly depict a person who displayed sexualized behaviors, aggressive confrontational lashing out, immaturity, and impulsivity that compromised Alvin's safety. From his birth until DYFS filed for guardianship, Lela was not able or willing to comport her behavior to focus on his needs. He was removed because his safety would have been compromised if placed in Lela's care.

The panel concludes that the trial court's finding regarding DYFS' satisfaction of this factor is clearly and convincingly supported by the record.

Under the second prong, the standard is whether it is reasonably foreseeable that a parent can stop inflicting harm on the child and show adequate parenting that would not put the child's physical or mental health in substantial jeopardy. DYFS must show harm to the child continues because the parent is unable or unwilling to overcome or remove it. Also to be considered is whether delay in permanency will cause further harm and whether removal from the child's resource parents would cause him serious and enduring emotional or psychological harm.

The panel says that in late 2009, Lela began to accept the benefit of counseling. However, when viewing the facts through the prism of Alvin's needs, as the law requires, the panel says the uncontroverted record reflects Lela could not grasp the nature and necessity of prioritizing his needs above her own and never achieved an appreciation for his need for stability. Thus, he remains at risk if placed in her care. Moreover, the experts agree Lela had not yet achieved stability for herself, making it impossible for her to provide it for Alvin.

The panel concludes that the record supports the conclusion that DYFS has satisfied the second prong by clear and convincing evidence.

The third prong requires DYFS to make "reasonable efforts to provide services to help the parent correct the circumstances" that necessitated removal. The panel says that when DYFS assumes custody, care and supervision to assure a child's interests are protected, it assumes responsibility to reunite the family if the child can be safely returned home. Here, DYFS' burden is heightened because of Lela's custodial status and age. Its efforts must include satisfactory services to aid the development of her maturation and necessary skills to adequately parent Alvin. The balancing test considers her abilities, motivations, capabilities and familial resources to reach this goal and Alvin's need for achieving stability and permanency within a reasonable time period.

DYFS' exhibits are replete with services extended in an effort to reunite Lela and Alvin. The panel finds that DYFS has met its heightened burden and attempted to achieve reunification. Its decision to pursue termination of parental rights was reasonably focused on Alvin's paramount need for safety, security and permanency. Considering the totality of the circumstances, the panel concludes DYFS' efforts to achieve reunification were reasonable.

Under the last prong, DYFS must prove the child will not suffer greater harm from the termination of ties with his biological parent than from the permanent disruption of his relationship with his resource family. The overriding consideration is the child's need for perma­nency and stability. The panel concludes that the trial judge properly credited the experts, whose unequivocal testimony clearly and convincingly stated that separating Alvin from his resource parents would cause serious and enduring emotional harm and that the harm he would face from severing his relationship with Lela would not be enduring as it would be properly mitigated by his resource parents.

For appellant — Michael S. Harwin, designated counsel (Joseph E. Krakora, Public Defender; John A. Salois, designated counsel, on the brief). For respondent — Kendra Andrews, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General; Andrea M. Silkowitz, Assistant Attorney General). For minor A.T.D. — Damen J. Thiel, designated counsel (Joseph E. Krakora, Public Defender, Law Guardian).

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