SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4745-96T1F
IN THE MATTER OF
THE ADOPTION OF A CHILD BY
WAYNE AND MARGARET PARSONS
________________________________
Submitted February 11, 1998 - Decided February 13, 1998
Before Judges Baime, Brochin and Wefing.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Union County.
Elliot H. Gourvitz, attorney for appellant T.S.
(Richard A. Outhwaite, on the brief).
MacFall, Reidl & Miskowski, attorneys for respondents
Wayne and Margaret Parsons (James W. Miskowski, of
counsel and on the brief; Harriet Dinigar Milks,
on the brief).
No briefs were submitted by respondents M.S. and
K.S.
The opinion of the court was delivered by
BAIME, P.J.A.D.
This appeal is from a judgment terminating T.S.'s parental
rights to his natural daughter, M.R. Although phrased in a
variety of ways, T.S. contends that the Family Part's findings
relating to parental unfitness were not supported by clear and
convincing evidence. We disagree.
We need not describe the procedural history in detail. T.S. and J.H. are the unmarried birth parents of M.R., who was born on August 11, 1994. After J.H. expressed her willingness to
surrender her parental rights to M.R., the prospective adoptive
parents filed a complaint for adoption. T.S. filed an objection
to the adoption. His parents moved to intervene. Following the
denial of their motion for intervention, T.S.'s parents filed an
emergent appeal. We ordered the Family Part to proceed with a
hearing respecting whether T.S.'s parental rights could be
terminated over his objection. We directed that T.S.'s parents
be afforded an opportunity to renew their application for
intervention before consideration of other substantive issues
relevant to custody, guardianship or adoption. Following a
protracted hearing, the Family Part entered a judgment
terminating T.S.'s parental rights. T.S. appealed. We now
affirm.
The essential facts are not in dispute. T.S. and J.H. met
in June of 1993. In December of that year, J.H. learned she was
pregnant and so advised T.S. Although T.S. expressed interest in
the prospect of becoming a father, he was heavily addicted to
synthetic heroin, cocaine, marijuana and alcohol and was
unemployed. T.S.'s problems with narcotics had begun in his
early teenage years, and despite J.H.'s repeated entreaties,
continued throughout their relationship. Moreover, T.S. had a
substantial criminal record, having been convicted of several
armed robberies and weapons offenses.
In February 1994, T.S. was incarcerated in the county jail.
As a condition of his release, T.S. entered a drug treatment
program. T.S. admitted to J.H. that he continued to use drugs
while in that program, and that he found a way to circumvent the
drug tests that were administered. After his completion of the
rehabilitation program, T.S. was briefly employed, but used the
money he earned to purchase drugs and was fired. We add that
T.S.'s employment history can fairly be characterized as
negligible. T.S. was fired from six different jobs within a
seven month period. T.S. never set aside any money for his
daughter. Although J.H. worked until June of 1994, she
ultimately found it necessary to receive welfare.
J.H. went into labor on August 10, 1994. Although T.S.
agreed to drive J.H. to the hospital, he did not appear and was
not present when the baby was born. He admitted the reason he
was not present was because he was taking drugs. We note that
the weekend before J.H. went into labor, T.S. had borrowed her
car, but had never returned it. After the baby was born, the
automobile was recovered, but it had been totally destroyed.
J.H. and the baby resided with J.H.'s parents. When her parents
were away, J.H. invited T.S. to spend a weekend with her in order
to establish a relationship between him and the baby. When J.H.
awoke the next morning, T.S. had left the house with her father's
automobile in order to purchase drugs.
In September 1994, T.S. was incarcerated for a parole
violation. Although professing to seek rehabilitation, T.S.
chose to go to prison when offered the opportunity to enter a
work therapy program. While incarcerated, T.S. repeatedly
requested J.H. to visit him with their daughter. J.H. acceded to
T.S.'s request on one occasion, but otherwise refused because she
felt that the jail was not an appropriate atmosphere for child
visitation. We digress to note that T.S. rarely sought to visit
his daughter even when he was not incarcerated and able to do so.
J.H. testified that M.R. did not recognize T.S. as her father.
While T.S. was in prison, J.H. decided to surrender her
parental rights to M.R. Although T.S.'s parents had taken a keen
interest in the child and had attended to her material needs,
J.H. came to the conclusion that adoption was in the best
interests of M.R. When she broached the subject, T.S. indicated
in a letter that he would agree although he did not "want [his]
daughter to be raised by . . . strangers." Upon his release from
prison, however, T.S. expressed his dissatisfaction with the
planned adoption.
The problem became more complicated upon T.S.'s subsequent
arrest for breaking into his parents' home and stealing his
father's guns. T.S.'s relationship with his parents had long
been strained and volatile. T.S. had worked for his father for
brief periods, but his drug addiction precluded continued
employment. Upon T.S.'s latest arrest for theft of the weapons,
his parents obtained a domestic violence order prohibiting any
contact. On December 9, 1996, T.S. pled guilty to third degree
theft. He was incarcerated at the time this appeal was filed.
Dr. Arlene Bruskin conducted a psychological evaluation of
T.S. at the Family Part's request. She testified that T.S. was
not functionally competent to act as a parent. According to Dr.
Bruskin, T.S.'s "history of oppositional behavior manifested in
drug abuse, school problems, antisocial actions, and frequent job
changes" disclosed an underlying immaturity that would prevent
him from raising M.R. without substantial risk. In her interview
with T.S., he appeared "angry, defensive, deficient in empathy
and preoccupied with issues of dependency [and] autonomy which
relate[d] to his self esteem." The "test data suggest[ed]" that
T.S. "overestimates his abilities" and that "his independent
judgment [is] below average." The witness noted that T.S.
intended to rely substantially on his parents' assistance if
ultimately granted custody. She stressed, however, that T.S.'s
volatile behavior would inevitably place him in conflict with his
parents concerning issues of child care. Moreover, T.S.'s
"unresolved emotional" problems would likely influence his
discipline of M.R. as she matured. Dr. Bruskin added that T.S.
was emotionally immature, his insight was poor, and his desire
for stabilization solely through his own efforts appeared highly
unrealistic.
The witness discounted the possibility that T.S. would
improve if psychotherapy was provided. Dr. Bruskin noted that
T.S. regarded psychotherapy as "witchcraft" and a "complete waste
of time." T.S. confided to Dr. Bruskin that while in prison, he
had attended several therapy sessions in order to "look good" and
further his chance of parole. However, his attitude and
emotional state made him a poor candidate for rehabilitation.
The Family Part issued an extensive written opinion in which
it found that T.S. was unfit to act in a parental role. In
reaching this conclusion, the court determined that T.S. was
"unable to perform the regular and expected parental functions of
care and support," and that his incapacity was "unlikely to
change in the immediate future." N.J.S.A. 9:3-46a(2).
Parents have a constitutionally protected, fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The Federal and State Constitutions protect the inviolability of the family unit. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551, 558-59 (1972); New Jersey Div. of Youth and Family Serv. v. A.W., 103 N.J. 591, 599 (1986). The law's concept of the family "rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 2504, 61 L.Ed.2d 101, 118 (1979). As is true of so many other legal presumptions, "experience and reality may rebut what the law accepts as a starting point." Id. at 602, 99 S.Ct. at 2504, 61 L.Ed. 2d at 119. The incidence of child abuse and neglect cases attests to the fact that some parents may act against the interests of their children. Ibid. Government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Id. at 603, 99 S.Ct. at 2504, 61 L.Ed. 2d at 119 (citing Wisconsin
v. Yoder,
406 U.S. 205, 230,
92 S.Ct. 1526, 1540,
32 L.Ed.2d 15,
33 (1972)). The State as parens patriae may act to protect
children from serious physical and emotional harm. This may
require a partial or complete severance of the parent-child
relationship. However, "[f]ew forms of state action are both so
severe and so irreversible." Santosky v. Kramer, 455 U.S. at
759, 102 S.Ct. at 1398, 71 L.Ed.
2d at 610.
When the child's biological parent resists termination of
parental rights, our function is to decide whether the parent can
raise the child without causing harm. In re Guardianship of
J.C.,
129 N.J. 1, 10 (1992). The cornerstone of our inquiry is
not whether the parent is fit, but whether he can become fit to
assume the parental role within time to meet the child's needs.
Ibid. "The analysis of harm entails strict standards to protect
the statutory and constitutional rights of the natural parents."
Ibid. The burden rests on the party seeking to terminate
parental rights "to demonstrate by clear and convincing evidence"
that risk of "serious and lasting [future] harm to the child" is
sufficiently great as to require severance of parental ties.
Ibid.
The question focuses upon what course serves the "best
interests" of the child. The law does not require ideal parents.
The State has no roving commission to search for individuals who,
by reason of temperament, wealth or situation, would better raise
the child if afforded the opportunity. The issue instead, is
whether, recognizing the frailties of humankind, the birth parent
can substantially perform the regular and expected parental
functions of care and support of the child.
That is the criterion expressly set forth in N.J.S.A. 9:3-46. That section provides that "[a] judgment of adoption shall
not be entered over an objection of a parent . . . unless the
court finds:
(1) that the parent has substantially
failed to perform the regular and expected
parental functions of care and support of the
child, although able to do so, or
(2) that the parent is unable to perform
the regular and expected parental functions
of care and support of the child and that the
parent's inability to perform those functions
is unlikely to change in the immediate
future.
The regular and expected functions of care
and support of a child shall include the
following:
(a) the maintenance of a relationship with
the child such that the child perceives the
person as his parent;
(b) communicating with the child or person
having legal custody of the child and
visiting the child unless visitation is
impossible because of the parent's
confinement in an institution, or unless
prevented from so doing by the custodial
parent or other custodian of the child or a
social service agency over the birth parent's
objection; or
(c) providing financial support for the
child unless prevented from doing so by the
custodial parent or other custodian of the
child or a social service agency.
A parent shall be presumed to have failed
to perform the regular and expected parental
functions of care and support of the child if
the court finds that the situation set forth
in paragraph (1) or (2) has occurred for six
or more months.See footnote 1
Although T.S.'s arguments are couched in terms of attacking
the Family Part's factual findings, they are premised upon an
interpretation of the statute with which we disagree. T.S.
contends that termination of parental rights is impermissible in
any case in which the parent is able to perform any one of the
three "regular and expected parental functions of care and
support of the child" listed in the statute even if he is unable
to perform the other two parental functions specified. He
asserts that the party seeking severance of parental ties must
establish the parent's inability to perform all three of the
"regular and expected parental functions of care and support of
the child" listed in the statute.
T.S.'s interpretation of the statute is wholly at odds with
the statutory language. The "regular and expected" parental
functions listed by the statute are stated in the disjunctive.
See State v. Smith,
262 N.J. Super. 487, 506 (App. Div.) ("[w]hen
items in a list are joined by a comma or semicolon, with an `or'
preceding the last item, the items are disjunctive."), certif.
denied,
134 N.J. 476 (1993). Further, the Legislature's use of
the word "include" indicates that the list of "regular and
expected" parental functions was not intended to be all-inclusive. The statutory language clearly belies T.S.'s argument
that each parental function listed is to be considered as a
hermetically sealed watertight compartment without reference to
the overall welfare of the child.
Moreover, T.S.'s construction of the statute defies common
sense. Were we to adopt T.S.'s interpretation, the Family Part
would be barred from severing parental ties where the person
resisting termination is able to provide financial support, but
unable to communicate with the child and maintain a relationship
in which the child perceives the person as his parent.
Similarly, a person able to communicate with the child, but
unable to provide financial support and maintain a parental
relationship could resist termination despite the clear and
present danger posed to the child. And finally, a person able to
maintain a parental relationship with a child, but unable to
communicate or provide financial support would have an
unbreakable right to raise the child regardless of the risk.
We read the statute consonant with the legislative purpose
to prevent harm to the child for which there is "unambiguous and
universal social condemnation." New Jersey Div. of Youth and
Family Serv. v. A.W., 103 N.J. at 604. In setting forth a list
of "regular and expected parental functions," the Legislature
attempted to identify the core values of parenthood, i.e., the
essential ingredients of the parental role. We do not suggest
that a person's inability to perform any one of these functions
necessarily incapacitates that individual from acting as a good
parent. For example, a person's inability to provide adequate
financial support, standing alone, should not be the basis for
severing parental ties. The hallmark of an effective parent has
never been his or her bank account, because we know that children
can be and often are loved and nurtured in poverty-stricken
families. Conversely, the ability to provide financial support,
standing alone, cannot bar the State from intervening to prevent
serious harm to the child, because we know that children can be
and sometimes are neglected in affluent homes. Against this
backdrop, we believe the legislative intent was to establish
several key parental standards upon which the parental abilities
of the person resisting termination are to be measured. The
Legislature did not intend to bar termination of parental rights
merely because the parent is able to perform one or more of the
parental functions listed. Nor was it the legislative design to
compel automatically the severance of parental ties because a
person is unable to perform one or more of the parental
obligations set forth in the statute. Instead, termination
hinges upon whether continuation of the parental relationship
would place the child in imminent danger of serious harm, and the
standards listed in the statute are to be considered within that
context. See In re Adoption of a Child by R.K.,
303 N.J. Super. 182, 196 (Ch. Div. 1997).
The record amply supports the Family Part's conclusion that
continuation of T.S.'s parental relationship would place M.R. in
substantial jeopardy. T.S.'s chronic addiction to drugs is well
documented. Although T.S. likens his addiction to a disease such
as cancer, we perceive a volitional aspect in his unwillingness
to obtain treatment. We offer no moral judgments. In drawing a
line between the sick and the bad, there is no purpose to subject
others to harm at the hands of the addicted, and there can be no
doubt but that T.S.'s abuse of drugs poses a serious risk to the
health, safety and welfare of M.R.
So too, the fact that T.S. has lived a life of crime tends
to negate his commitment to parental responsibilities. T.S.'s
life has been punctuated by lengthy periods of incarceration.
These lengthy custodial terms and the underlying crimes that gave
rise to incarceration are "relevant in determining whether
parental rights should be terminated, because [they] bear on
parental unfitness." In re Adoption of Children by L.A.S.,
134 N.J. 127, 143 (1993).
Finally, T.S.'s longstanding psychological problems and his
unwillingness to genuinely seek psychological treatment make it
highly unlikely that he can fulfill the parental responsibility
to provide nurture and emotional support, to offer guidance,
advice and instruction and to maintain a parental relationship
with M.R. As noted by Dr. Bruskin, T.S.'s volatile relationship
with his parents would place him in conflict concerning issues of
child care, and thus their ability to assist in raising M.R.
would inevitably be subverted.
Accordingly, the judgment of termination is affirmed.
Footnote: 1The Family Part rejected the adoptive parents' contention that T.S. had substantially failed to perform the regular and expected parental functions of care and support under N.J.S.A.
9:3-46a(1). We have no occasion to consider whether or not the court was correct in reaching this conclusion. Our disposition of the issues raised is confined to the Family Part's finding that T.S. is unable to perform the regular and expected parental functions of care and support under N.J.S.A. 9:3-46a(2).