NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5524-04T45524-04T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.C.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF V.S. AND W.M.,

Minors.

 

Submitted January 11, 2006 - Decided January 25, 2006

Before Judges Winkelstein and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FG-09-224-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent, New Jersey Division of Youth & Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Elizabeth Cashin, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, attorney for minor respondents, V.S. and W.M. (Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Following a bench trial, defendant D.C. appeals from a judgment terminating her parental rights to her son, V.S., who was born on June 16, 2003. She raises the following issues:

POINT I

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR AN ADJOURNMENT TO ALLOW THE [DIVISION OF YOUTH AND FAMILY SERVICES (THE DIVISION)] TO ASSESS THE MATERNAL GRANDMOTHER AS A RELATIVE SOURCE FOR PLACEMENT OF V.S.

POINT II

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BECAUSE OF THE TRIAL COURT'S INAPPROPRIATE INTERVENTION DURING THE TESTIMONY OF DR. MASTRIA (NOT RAISED BELOW).

POINT III

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE THE SECOND, THIRD, AND FOURTH PRONGS OF THE "BEST INTERESTS" TEST BY CLEAR AND CONVINCING EVIDENCE.

(A) SINCE A DELAY IN PLACEMENT WOULD NOT HAVE ADDED TO THE HARM TO V.S., UNDER THE SECOND PRONG THE DEFENDANT WAS ABLE TO BECOME PARENTALLY FIT IN TIME TO MEET THE NEEDS OF V.S.

(B) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION CONSIDERED PLACING V.S. WITH HIS MATERNAL GRANDMOTHER AS AN ALTERNATIVE TO TERMINATION OF THE DEFENDANT'S PARENTAL RIGHTS.

(C) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD BECAUSE OF THE DIVISION'S FAILURE TO CONDUCT A BONDING EVALUATION BETWEEN V.S. AND THE DEFENDANT.

We have carefully reviewed the record and in light of the applicable law, conclude that D.C.'s contentions are without merit. R. 2:11-3(e)(1)(A)&(E). We affirm substantially for the reasons expressed by Judge Bovino in his May 27, 2005 oral decision. His opinion contains findings of fact that are fully supported by substantial credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The court correctly applied the legal standards as set forth in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), subsequently codified at N.J.S.A. 30:4C-15.1a; see also In re Guardianship of K.H.O., 161 N.J. 337 (1999). We add only the following.

Prior to trial, D.C. surrendered her parental rights to her son, W.M., born on January 19, 2002. V.S., Sr., the father of W.M. and V.S., surrendered his parental rights to both children. D.C. is also the mother of S.C., born on June 11, 1986, De.C., born on June 23, 1989, and A.C., born on March 16, 1994. By the time of trial, S.C. was emancipated, De.C. resided with her paternal grandparents, and A.C. resided with his maternal grandmother. The only child subject to this appeal is V.S., who is currently in a foster home.

Defendant claims the trial court abused its discretion when it denied her motion to adjourn the trial to allow the Division of Youth and Family Services (the Division) additional time to evaluate whether defendant's mother, K.K., could be a potential caretaker for V.S. We disagree.

Whether to grant an adjournment is within the discretion of the trial judge. State v. Kyles, 132 N.J. Super. 397, 402 (App. Div. 1975). Here, we find no abuse of discretion. The judge gave reasons for his decision. The Division had attempted to contact K.K. before trial, but D.C. had provided the wrong address. By the time of trial, V.S. had been in foster care since birth, almost two years. Securing permanency and stability for him without further delay was a critical consideration of the trial court. See N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 67 (App. Div. 2003), aff'd in part and modified in part, 179 N.J. 264 (2004). Prior to trial, K.K. expressed no interest to the Division in raising V.S. Nor did D.C. offer any proof that an adjournment would result in K.K. being approved as a caretaker for V.S. Consequently, the trial judge did not err when he denied D.C.'s request for an adjournment.

D.C. argues that her right to a fair trial was impaired because the trial judge inappropriately questioned defense witnesses. Specifically, she points to the judge's examination of her expert psychologist, Dr. Ernest Mastria. We are not persuaded.

A judge must exercise reasonable control over the interrogation of witnesses. N.J.R.E. 611. A judge may interrogate a witness, N.J.R.E. 614, and, indeed, should do so if necessary to "promote expedition, prevent unnecessary waste of time and clear up obscurities." State v. Laws, 50 N.J. 159, 181 (1967), cert. denied, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968). A judge has the right to question witnesses to clarify questions and witnesses' testimony. State v. Medina, 349 N.J. Super. 108, 130-31 (App. Div.), certif. denied, 174 N.J. 193 (2002). So long as judicial intervention is exercised with restraint and does not cross the "fine line that separates advocacy from impartiality," Vill. of Ridgewood v. Sreel Inv. Corp., 28 N.J. 121, 132 (1958), intervention is appropriate.

That is what happened here. Dr. Mastria was evasive in many of his answers. The court's questioning, while forceful, was intended to elicit evidence that the court believed to be necessary to allow it to properly decide the case. In rendering his decision, the trial judge gave valid reasons for his examination of the witness:

While my questions with Dr. Mastria may seem to be adversarial, . . . they were done to explain, try to get him to answer the questions that [the attorney for the Division] was trying to get him to answer. And I found and find that Dr. Mastria's testimony is evasive, not clear, not complete, entertaining, but without any substance.

Dr. Mastria recognizes that he has a bias in favor of the parent, does not enter into the evaluation objectively, does not testify in an objective, impartial manner, and I point to his direct and cross-examination.

Again, his direct examination is very clear, concise, direct. His cross-examination is very evasive, attempting to answer his own question, not the question that was posed to him by [the attorney for the Division] or myself or [the attorney for the Law Guardian].

 
Affirmed.

(continued)

(continued)

6

A-5524-04T4

RECORD IMPOUNDED

January 25, 2006