S. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. B.N. et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-0516-05T4 A-0691-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

B.N. and C.W.,

Defendants-Appellants,

IN THE MATTER OF THE

GUARDIANSHIP OF T.D.W.,

A Minor.

 

Submitted: April 3, 2006 - Decided May 19, 2006

Before Judges Fall and Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Number FG-07-342-04.

Yvonne Smith Segars, Public Defender, attorney for appellant B.N. (Michael Confusione, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant C.W. (Gladys Moriarty, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Brett L. Carrick, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for the minor T.D.W. (Cynthia McCullough DiLeo, Designated Counsel, on the brief).

PER CURIAM

In these consolidated guardianship appeals, B.N. and C.W., biological parents of T.D.W., appeal from the termination of their parental rights pursuant to N.J.S.A. 30:4C-15.1a, and the placement of T.D.W. in the care and guardianship of the plaintiff, New Jersey Division of Youth and Family Services (DYFS or Division) for all purposes, including placement for adoption. We affirm.

C.W. gave birth to T.D.W., a male child, on May 24, 2003; B.N. is the child's father. When T.D.W. was born, he tested positive for opiates and displayed withdrawal symptoms. C.W. admitted that she had received no prenatal care and had used cocaine two days prior to giving birth. T.D.W. was placed with his foster parent upon discharge from the hospital, and has since remained in that foster care placement. The permanency plan is foster parent adoption.

The record on appeal discloses that C.W., who is the mother of seven other children, none of whom are in her care, is a chronic drug abuser, and has a long history of involvement with the Division. B.N., who is the father of two of those children, including T.D.W., also has a long history of illicit drug involvement, and, at the time of this guardianship trial, was serving a prison sentence for possession of a controlled dangerous substance and for a violation of probation. B.N. has never been actively involved in the life of T.D.W., and presented no appropriate alternatives to foster care placement.

The factual and procedural history of this case need not be recounted here at length, as it is outlined in detail in the comprehensive written opinion issued by Judge Glenn A. Grant on July 15, 2005, following a trial conducted on June 2, June 3, June 10, and June 17, 2005. Judge Grant also augmented his written decision with an oral opinion delivered on July 15, 2005, and entered an order of guardianship on that date.

On appeal in A-0516-05T4, B.N. presents the following arguments for our consideration:

POINT I

THERE DID NOT EXIST SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD BELOW SUPPORTING THE TRIAL COURT'S CONCLUSION THAT DYFS HAD PROVEN BY CLEAR AND CONVINCING EVIDENCE THAT THE BEST INTERESTS OF THE MINOR CHILD NECESSITATED THE TERMINATION OF B.N.'S PARENTAL RIGHTS.

POINT II

THE TRIAL COURT ERRED IN NOT REQUIRING DYFS TO PURSUE VIABLE FAMILY PLACEMENTS FOR T.D.W. THAT WOULD HAVE AVOIDED TERMINATING B.N.'S PARENTAL RIGHTS AND SEVERING T.D.W.'S RELATIONSHIP WITH HIS FAMILY OF ORIGIN.

POINT III

THE TRIAL COURT ERRED IN NOT SUFFICIENTLY CONSIDERING KINSHIP LEGAL GUARDIANSHIP.

POINT IV

THE TRIAL COURT ERRED IN TERMINATING B.N.'S PARENTAL RIGHTS SOLELY BECAUSE HE WAS INCARCERATED.

POINT V

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO BAR DR. RAYMOND'S TESTIMONY AND EXPERT REPORT.

POINT VI

B.N. WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT VII

THE TRIAL COURT ERRED IN PERMITTING THE TERMINATION TRIAL TO PROCEED WITHOUT PSYCHOLOGICAL AND BONDING EVALUATIONS ON B.N.'S BEHALF.

In her appeal in A-0691-05T4, C.W. advances the following argument:

POINT I

THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE SUPPORTING THE TRIAL COURT'S FINDINGS THAT THE FIRST, SECOND, THIRD AND FOURTH PRONGS OF THE "BEST INTERESTS" TEST WERE PROVEN BY THE STATE.

After analyzing the record in the light of the written arguments of the parties, we conclude that the issues presented by B.N. and C.W. are without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(1)(A) and (E), and we affirm substantially for the reasons articulated by Judge Grant in his July 15, 2005 written and oral decisions. We add the following.

The factual findings by Judge Grant, and his conclusion that the Division had established each of the requisite four prongs set forth in N.J.S.A. 30:4C-15.1a(1) through (4) by clear and convincing evidence, are supported by sufficient, credible evidence contained in the record on appeal, Cesare v. Cesare, 154 N.J. 394, 411-13 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974), and we find no basis to disturb them.

We specifically reject B.N.'s contention that his parental rights were terminated solely because he was incarcerated. Although "[c]learly the incarceration of a parent is a relevant factor in determining whether the parent-child relationship may be terminated[,]" In re Adoption of Children by L.A.S., 134 N.J. 127, 135 (1993); see also New Jersey Div. of Youth and Family Servs. v. S.A., 382 N.J. Super. 525, 533-34 (App. Div. 2006), it is clear that B.N.'s incarceration was, by no means, the sole or predominate reason for Judge Grant's decision to terminate his parental rights. The record discloses that B.N. made no attempt to parent or contact T.D.W. prior to his incarceration; that he provided no appropriate alternative to the placement of T.D.W. in foster care; that he has been unable to establish or maintain a stable home for himself for many years, even when not incarcerated; that, prior to his incarceration, he failed to undergo psychological and substance abuse evaluations as requested by the Division; that he had failed to adequately parent or care for his other two children; and that Dr. Robert Raymond, who performed a psychological evaluation of B.N. on March 28, 2005, had concluded that B.N. lacked the capacity to "assume custody and raise a child without there being serious risks, dangers."

We are also not persuaded that there is any merit to B.N.'s contention that he was provided ineffective assistance of trial counsel. There is nothing in the record to suggest that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." New Jersey Div. of Youth and Family Servs. v. V.K., 236 N.J. Super. 243, 256 (App. Div. 1989) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984)), certif. denied, 121 N.J. 614), cert. denied sub nom., Kliewer v. New Jersey, 495 U.S. 934, 110 S. Ct. 2178, 109 L. Ed. 2d 507 (1990).

We also find no merit in B.N.'s contention that Judge Grant erred in denying his application to bar the report and testimony of Dr. Raymond. B.N. argues that the report and testimony should have been barred because his counsel had not been supplied the April 11, 2005 report until May 13, 2005. Clearly, B.N. was aware that Dr. Raymond had performed a psychological evaluation of him on March 28, 2005. Moreover, the record reflects that as soon as counsel for DYFS received the report on May 12, 2005, it was immediately provided to B.N.'s counsel. There is nothing in the record to realistically suggest that the ability of B.N.'s counsel to prepare for the cross-examination of Dr. Raymond was in any way hampered or prejudiced by his receipt of Dr. Raymond's four-page report more than two weeks prior to the commencement of trial. Indeed, B.N.'s counsel conducted a rigorous and thorough cross-examination of Dr. Raymond.

We find the other issues presented by B.N. and C.W. to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

(continued)

(continued)

5

A-0516-05T4

RECORD IMPOUNDED

May 19, 2006