NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.E.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0281-05T40281-05T4

NEW JERSEY DIVISION

OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

M.E.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF C.M.E.,

A Minor.

______________________________

 

Submitted February 28, 2006 - Decided April 26, 2006

Before Judges Collester and S.L. Reisner.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Ocean County,

FG-15-1-05.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael C. Kazer, Designated

Counsel, of counsel and on the brief).

Nancy Kaplen, Acting Attorney General, attorney

for respondent (Nancy Reilly, Deputy Attorney

General, of counsel; Scott J. Kieserman, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian

for minor C.M.E. (Cynthia McCulloch DiLeo,

Designated Counsel, of counsel and on the brief).

PER CURIAM

On June 17, 2005, Judge June Strelecki terminated the parental rights of D.G. and M.E., mother and father of C.M.E., born on September 16, 2000. Guardianship was awarded to the Division of Youth and Family Services (DYFS) to consent to the adoption of the child by the foster parents with whom C.M.E. has lived since March 2004. We affirm.

C.M.E. lived with his biological parents for the first seventeen months of his life. DYFS first became involved with the family on April 4, 2001, when they were living with the paternal grandfather. The report received was that the parents were heroin users and had been injecting themselves in front of the child, but the alleged abuse and neglect were not substantiated. Then on February 5, 2002, the Stafford police responded to a domestic dispute involving D.G. and the paternal grandmother. A referral was again made to DYFS, and this time abuse and neglect were substantiated since both parents admitted to using heroin while the child was in their care.

DYFS filed a Title 9 protected services complaint against the parents, and physical custody of C.M.E. was placed with the maternal grandmother. DYFS offered services to D.G. including substance abuse treatment, psychological evaluations, visitations and parenting classes. However, she was not compliant and would disappear from time to time. The order placing C.M.E. with the maternal grandmother allowed D.G. to remain in the home but not to have unsupervised contact with her son. When DYFS learned that the maternal grandmother had allowed such unauthorized contact, it removed C.M.E. and placed him in foster care. However, in July 2003, the court ordered DYFS to return C.M.E. to the maternal grandmother with instructions that she was not to permit any further unauthorized contact. At that time M.E. was incarcerated.

In March 2004, the DYFS caseworker learned that, without approval by DYFS or the court, the paternal grandmother had given custody of C.M.E. to M.E.'s sister, the child's paternal aunt, and the aunt in turn gave custody to A.B. and K.B., a married couple who were friends of the paternal family. DYFS investigated and approved the placement, and C.M.E. has been in the custody of A.B. and K.B. since that time. The DYFS caseworker testified that the child received adequate care and that A.B. and K.B. wished to adopt. In this regard DYFS also explored family members for placement as an alternative to termination of parental rights. M.E. suggested his aunt and uncle in Florida, but they advised DYFS they were not interested in caring for the child. No other relatives were found suitable for the role of a kinship legal guardian. Therefore, DYFS's permanent placement plan became foster care adoption of C.M.E. by A.B. and K.B.

On July 8, 2004, the complaint for guardianship and to terminate the parental rights of D.G. and M.E. was filed pursuant to N.J.S.A. 30:4C-15 and N.J.S.A. 30:4C-20. At trial DYFS called Dr. Alan S. Gordon, who was retained to perform psychological and bonding evaluations. Dr. Gordon stated that M.E. had a substance abuse disorder, a narcissistic personality disorder, a borderline personality disorder, and an anti-social personality disorder so that he did not meet the criteria for parenting. While Dr. Gordon acknowledged that M.E. interacted well with his son, the child's emotional support came from his bond with the foster parents. Dr. Gordon testified that D.G. was unable to effectively parent C.M.E. because of her drug addiction and personality disorders. On the other hand, Dr. Gordon found that C.M.E. was strongly bonded to his foster parents, stating that

[T]here's no question that the bond between the caregiver[s] and the child is a very strong one at this point. The child really does look to these caregivers for all of his basic needs, protection, care. Parenting involves four criteria: nurturance or being able to provide the child with food, clothing, shelter. It involves protection or being able to protect the child from harm, whether real or potential. It involves stability in the caregiver's life and guidance or being able to guide the child through each developmental stage. Now, at the time I saw M.E. and D.G., they didn't fulfill the requirements for parenting. At the time that I saw the foster parents, they certainly did fulfill all four of those criteria.

It was Dr. Gordon's opinion that securing permanency and stability for C.M.E. was critical. He said the foster parents were able to provide that stability and security and therefore approved DYFS's plan for foster parent adoption. He said that C.M.E. had consistently stated his desire to live permanently with his foster parents and that he would be "very traumatized" if removed from their custody.

M.E. testified he was inpatient at the Integrity House drug program with an anticipated release date of July 2005 and that he had been drug free since September 2004. He claimed that his aunt and uncle in Florida, his maternal aunt and his father were willing to take care of C.M.E. until he was ready to assume parenting his son. He opposed the termination of his parental rights but said he was open to having A.B. and K.B. be designated as kinship legal guardians. Notably, the foster parents indicated a willingness for M.E. to have contact with his son should they be permitted to adopt him.

D.G. testified that she was also drug free and was living with her fiancé, A.K. She was pregnant with his child. A.K. testified as to his intention to marry D.G.

On June 17, 2005, Judge Strelecki gave an oral opinion in which she concluded under the standard of clear and convincing evidence that DYFS had met the four-prong test for termination of parental rights under N.J.S.A. 30:4C-15.1, which codified the standard set forth by our Supreme Court in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591, 604-10 (1986). While D.G. has not appealed the judgment terminating her parental rights, M.E. filed a notice of appeal and sets forth the following arguments for our consideration:

POINT I - THE SCOPE OF PROCEDURAL DUE PROCESS THAT IS REQUIRED IN TITLE 30 GUARDIANSHIP LITIGATION WAS VIOLATED BECAUSE THE TRIAL COURT PRESIDED OVER THE GUARDIANSHIP TRIAL, AND MADE ITS EVIDENTIARY RULINGS AND FACTUAL FINDINGS, "AS PARENS PATRIAE FOR THE CHILD."

A. IN DENYING THE DEFENDANT'S MOTION OF AN ADJOURNMENT THE TRIAL COURT ABUSED ITS DISCRETION BY MAKING ITS RULING "AS PARENS PATRIAE FOR THE CHILD."

B. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR MISTRIAL OR RECUSAL, AND ABUSED ITS DISCRETION IN TERMINATING THE DEFENDANT'S PARENTAL RIGHTS, BECAUSE IT MADE LEGAL RULINGS AND FACTUAL FINDINGS IN ITS ROLE AS "PARENS PATRIAE FOR THE CHILD."

POINT II - THE JUDGMENT OF GUARDIANSHIP TERMINATING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO CLEARLY AND CONVINCINGLY PROVE THE SECOND, THIRD, AND FOURTH PRONGS OF THE BEST INTERESTS TEST.

A. SINCE A DELAY IN PLACEMENT WOULD NOT HAVE ADDED TO THE HARM TO C.M.E. UNDER THE SECOND PRONG THE DEFENDANT WAS ABLE TO BECOME PARENTALLY FIT IN TIME TO MEET THE NEEDS OF C.M.E.

B. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION CONSIDERED PLACING C.M.E. WITH HIS PATERNAL AUNT AND UNCLE WHO LIVE IN FLORIDA AS AN ALTERNATIVE TO TERMINATION OF PARENTAL RIGHTS.

C. THE TRIAL COURT APPLIED AN IMPROPER "BETTER INTERESTS" ANALYSIS IN FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

After careful review of the record, we have determined that the judgment of Judge Strelecki was based on findings of fact supported by adequate, substantial and credible evidence and that the factual findings are dispositive of the appeal. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993). The appellate arguments made by M.E. are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We choose to address only M.E.'s contention that he was deprived of procedural due process by the judge's interview of C.M.E. privately in chambers. R. 5:12-4(b) provides that in actions brought by DYFS the trial judge has discretion to interview the child privately or under protective orders as the court deems necessary. See New Jersey Division of Youth and Family Services v. S.S., 185 N.J. Super. 3, 7 (App. Div. 1982). Here, Judge Strelecki invited counsel to submit questions to address to the child and further stated, "If you would like to be present when I am talking to the child, you are welcome to be present." While the interview was taped, subsequent efforts to locate the tape were unsuccessful. Nonetheless, Judge Strelecki stated that her purpose to observe the child was "in order to determine that he's being properly cared for." She said the interview lasted about ten minutes and that she only recalled that the child appeared well cared for. Her conclusion to terminate parental rights and award guardianship to DYFS was in no way affected by her brief interview with the child. No due process violation was therefore indicated.

We affirm substantially for the reasons set forth by Judge Strelecki in her oral opinion of June 17, 2005.

 
Affirmed.

(continued)

(continued)

8

A-0281-05T4

RECORD IMPOUNDED

April 26, 2006