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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5049-06T41913-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.W.,

Defendant-Appellant.

_____________________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF

F.C.J.E.,

A Minor.

______________________________________________

 

Submitted September 22, 2008 - Decided

Before Judges Carchman, Sabatino and Simonelli.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-154-07.

Yvonne Smith Segars, Public Defender, attorney for appellant, D.W. (Durrell Wachtler Ciccia, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; David M. Puteska, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor F.C.J.E. (Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

The Division of Youth and Family Services (Division) brought this action, seeking the termination of the parental rights of defendant D.W. to her child, F.C.J.E., born April 11, 2005. Following a non-jury trial, Judge DeCastro rendered a written decision and entered judgment in favor of the Division.

In this appeal, D.W. raises the following contentions:

POINT I:

THE TRIAL COURT ERRED IN CONCLUDING THAT THE BEST INTERESTS OF THE CHILD WOULD BE SERVED BY TERMINATING D.W.'S PARENTAL RIGHTS.

A. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT D.W. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HER CHILD OR IS UNABLE OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILD.

B. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT THE DIVISION HAS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP THIS PARENT CORRECT THE CIRCUMSTANCES WHICH LED TO HER CHILD'S PLACEMENT OUTSIDE THEIR HOME.

C. TERMINATION OF D.W.'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

We reject these contentions and affirm.

D.W. has been known to the Division since 1986. However, it was not until 1995 that the Division substantiated abuse and neglect when D.W. gave birth to her second child, who tested positive for drugs at birth. D.W. also tested positive for opiates, cocaine and heroin. The Division removed the child from D.W.'s custody and placed him with his maternal grandmother.

D.W. again tested positive for cocaine, opiates and methadone when F.C.J.E was born in April 2005. D.W.'s drug screens in August, September and October 2005, also were positive for cocaine, opiates and methadone. She rejected the Division's recommendation for in-patient drug treatment, and for the placement of a homemaker in her home.

The Division removed F.C.J.E. from D.W.'s custody and placed the child into foster care after D.W. continued testing positive for drugs and failed to attend court-ordered in-patient drug treatment. Subsequent psychological evaluations revealed that any child in D.W.'s care would be exposed to neglect and harm.

D.W. continued testing positive for drugs as late as August 2007. A termination trial was held in September 2007. At the conclusion of the trial, Judge DeCastro rendered a written decision, which included extensive factual findings, and a thorough description of the applicability of those findings to the four prongs of N.J.S.A. 30:4C-15.1(a). Applying the clear and convincing proof standard, the judge concluded that the Division met all four prongs of N.J.S.A. 30:4C-15.1(a).

Our review of a trial judge's findings is a limited one. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). We will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance[,]'" ibid. (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will reverse only if we are convinced the trial judge's factual findings and legal conclusions "are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Fagliarone, supra, 78 N.J. Super. at 155). We must defer to the trial judge's findings of fact if supported by clear and convincing evidence in the record. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993).

Given the special jurisdiction and expertise of a family court judge, we accord deference to that judge's fact-finding and conclusions which flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (1998); Div. of Youth & Family Servs. v. M.M., 382 N.J. Super. 264, 271-72 (App. Div. 2006) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)), rev'd on other grounds, 189 N.J. 261 (2007). We also afford deferential respect to a family judge's credibility determinations. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (citing Rova Farms, supra, 65 N.J. at 483-84). However, a "trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 149 N.J. 366, 378 (1995)).

Based upon our careful review of the record, we conclude there is clear and convincing evidence supporting Judge DeCastro's findings. We also conclude that the judge applied the correct legal standards to the facts she found in ultimately concluding that all four statutory prongs were met and that termination was required. Accordingly, we discern no reason to disturb the judge's findings, and affirm substantially for the reasons set forth in her comprehensive and well-reasoned written decision.

Affirmed.

The judgment also included defendant K.E., the child's biological father. K.E. did not appeal.

F.C.J.E. was subsequently placed with a paternal cousin in New York. The trial judge approved a permanency plan of adoption by that relative.

D.W. concedes that the Division met its burden of proof as to the first prong of N.J.S.A. 30:4C-15.1(a): that F.C.J.E.'s health and development have been or will continue to be endangered by the parental relationship.

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6

A-1913-07T4

RECORD IMPOUNDED

September 30, 2008