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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6188-08T46188-08T4

NEW JERSEY DIVISION

OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

W.M.,

Defendant-Appellant.

_______________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF N.M. and S.M., minors.

_______________________________________

 

Argued May 3, 2010 - Decided

Before Judges Rodr guez, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-18-09.

Michael C. Wroblewski, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Wroblewski, of counsel and on the brief).

Stephanie Anatale, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Robert Lougy, Assistant Attorney General, of counsel; Ms. Anatale, on the brief).

Jeffrey R. Jablonski, Designated Counsel, argued the cause for minors D.C., N.C. and S.C. (Yvonne Smith Segars, Public Defender, Law Guardian; Mr. Jablonski, on the brief).

PER CURIAM

Defendant W.M. appeals from a judgment entered by the Family Part on June 30, 2009, which terminated his parental rights to two minor children, N.M. and S.M. We affirm.

I.

The following facts are pertinent to our decision in this case. S.C. was the biological mother of four children: N.M., S.M., Z.C. and D.C. W.M. is the biological father of N.M. and S.M. C.C. was named as the alleged biological father of D.C., and J.G. was named as the biological father of Z.C.

On June 14, 2007, S.C. and W.M. were residing with the four children in a home in Lakewood, New Jersey. On that date, W.M.'s seventeen-year-old son, D.K., who resides in Georgia with his biological mother, also was staying at the house. At approximately 2:30 a.m., Patrolman William Allen (Allen) of the Lakewood Police Department (LPD) responded to the home, after a neighbor reported hearing a gun shot there. Patrolman Robert Anderson of the LPD also responded to the scene. The door of the house was unlocked and the officers went inside.

Allen called out and D.K. came down the stairs. D.K. was holding a child. Allen asked D.K. if anyone had been shot, or if he had heard any gunfire. D.K. said that he had been asleep and did not hear anything. With D.K.'s permission, Allen walked down to the ground floor, where he found S.C. lying face down on the floor in a bedroom. S.C. had a large wound on the side of her head. It appeared to Allen that it was a gunshot wound.

S.C. was alive, and N.M. was lying next to her, sleeping. Allen observed a handgun near S.C.'s hand. Allen secured the gun, which was a loaded .357 magnum revolver, and Anderson took the child. The officers summoned emergency medical assistance. Paramedics arrived and removed S.C. to a hospital, where she died.

The police transported the children to Lakewood's police headquarters. Z.C. was then ten years old; D.C. was six years old; N.M. was two-and-one-half years old; and S.M. was eighteen months old. The police contacted the Division of Youth and Family Services (Division), and requested that the Division attend to the children. On June 18, 2007, the court awarded the Division custody of the four children. The children were placed in foster care. In March 2008, the Division placed the children in the care of a maternal aunt, J.C.

W.M. turned himself into the police at around 10:37 p.m. on June 14, 2007. He gave a videotaped statement to the police. W.M. said that he and S.C. had engaged in a heated verbal dispute. According to W.M., S.C. was in possession of a handgun. A struggle ensued, during which S.C. was shot in the head. W.M. said that he and S.C. had their hands on the gun when it discharged. W.M. was arrested and incarcerated.

On March 19, 2008, W.M. was charged under Indictment No. 08-03-388 with first degree murder, contrary to N.J.S.A. 2C:11-3; second degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4; fourth degree tampering with or fabricating physical evidence, contrary to N.J.S.A. 2C:28-6; and second degree possession of a weapon, after having been convicted of a drug offense, contrary to N.J.S.A. 2C:39-7(b). He has not yet been tried on the charges. W.M. was unable to post the required bail and he remains in jail.

On August 26, 2008, the Division filed a guardianship action seeking, among other things, the termination of W.M.'s parental rights to N.M. and S.M. The Family Part conducted a trial in the matter and, on June 30, 2009, rendered an oral decision in which it concluded that the Division had established by clear and convincing evidence all of the requirements under N.J.S.A. 30:4-15.1(c) for termination of W.M.'s parental rights to N.M. and S.M. The court also found that C.C.'s parental rights to D.C. should be terminated. The court entered an order dated June 30, 2009, memorializing its decision. W.M. has appealed.

II.

On appeal, W.M. raises the following arguments for our consideration:

POINT I

W.M. WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL BECAUSE TRIAL COUNSEL FAILED TO CALL WITNESSES TO TESTIFY ABOUT HIS RELATIONSHIP WITH HIS CHILDREN AND FAILED TO ARRANGE FOR A BONDING EVALUATION[.]

POINT II

THE TRIAL COURT ERRED IN FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

(A) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILDREN WAS AND CONTINUED TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

(B) CLEAR AND CONVINCING EVIDENCE DID NOT EXIST TO SUPPORT A FINDING THAT W.M. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HIS CHILDREN[.]

(C) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP W.M. CORRECT THE CIRCUMSTANCES WHICH LED TO HIS CHILDREN'S PLACEMENT OUTSIDE THE HOME.

(D) [THE DIVISION] DID NOT PREVAIL ON PRONG FOUR OF [N.J.S.A.] 30:4C-15.1[a] BECAUSE IT DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT CAUSE MORE HARM THAN GOOD[.]

POINT III

THE TRIAL COURT IMPROPERLY CONSIDERED HEARSAY TESTIMONY CONTAINED IN POLICE RECORDS ADMITTED INTO EVIDENCE AND DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO THE ADMISSION OF THE HEARSAY (Not Raised Below)[.]

We are convinced from our thorough review of the record that these arguments are entirely without merit. We accordingly affirm the judgment terminating W.M.'s parental rights substantially for the reasons stated by the trial court in its decision from the bench on June 30, 2009. R. 2:11-3(e)(1)(A). We add the following.

It is well-established that a parent has a fundamental right to enjoy a relationship with his or her child. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, "[p]arental rights, though fundamentally important, are not absolute." Id. at 347. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid.

The "best interests" standard requires that an individual's parental rights not be terminated unless the Division establishes by clear and convincing evidence each of the following statutory criteria:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1(a).]

These criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

Here, the trial court found that the Division had established by clear and convincing evidence all of the four statutory criteria for termination of W.M.'s parental rights to N.M. and S.M. The court determined that the termination of W.M.'s parental rights, and the adoption of the children by their maternal aunt, was in the children's best interests. We are satisfied that there is sufficient credible evidence in the record to support the trial court's findings of fact and conclusions of law.

W.M. argues, however, that the Division failed to establish the first prong of the "best interests" standard by clear and convincing evidence. W.M. contends that the Division failed to prove a pattern of parental inaction and neglect. W.M. notes that, as of the date of the guardianship trial, he had not been convicted of murdering S.C. He maintains that his parental rights cannot be terminated merely because he has been charged with murder and because he has been incarcerated since his arrest. We find no merit in these contentions.

To satisfy the first prong of the "best interests" standard, the Division must establish that the child's safety, health and development has been or will continue to be endangered by the parental relationship. N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J. Super. 76, 113 (App. Div.), certif. denied, 180 N.J. 456 (2004). The Division must demonstrate that the parent harmed the child. K.H.O., supra, 161 N.J. at 348. "Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship." Ibid. (citing N.J.S.A. 30:4c-15.1(a)(1)). Evidence of a single, particularly egregious harm can be sufficient to satisfy this part of the "best interests" standard. Ibid.

Here, the trial court noted that defendant claimed that S.C. was fatally shot accidentally or that he shot her in self-defense. The court found, however, that, at a minimum, S.C. died as a result of gunshot wounds sustained during an incident of physical domestic violence between W.M. and S.C. Moreover, the evidence established that the incident took place in the presence of one of the children, and four other minors were in the home at the time.

The court also found that S.C. was alive after she was shot and W.M. did not immediately summon first aid. Rather, W.M. panicked and fled the scene. It appears that W.M. was driven to a motel by a woman with whom he had a "dating relationship." He left S.C. dying on the floor. Moreover, W.M. left the children at home without adult supervision. The court additionally found that evidence showed that defendant had positioned the weapon near S.C.'s right hand, in an apparent attempt to make it appear as if she had shot herself. The court pointed out that W.M. had left N.M., who was two-and-one-half years old at the time, in the room, sleeping near S.C. "while she was still alive but in critical condition in the immediate proximity to" the loaded gun.

Moreover, the court pointed out that Dr. Hydow Park (Park), the Ocean County Medical Examiner, had testified concerning the autopsy he performed on S.C.'s body. Park stated that S.C. sustained a perforating gunshot wound on the palm of her left hand and a bullet had entered the right frontal region of her head. Park opined, within a reasonable degree of medical certainty, that S.C.'s gunshot wounds were not self-inflicted. Park said that, at the time the shot was fired, S.C.'s left hand was positioned up in front of her head in a defensive posture.

We are convinced that the evidence clearly and convincingly supports the trial court's finding that N.M. and S.M. health and development were harmed by their relationship with W.M. The record shows that the children have been harmed by the death of their mother and W.M.'s personal involvement in that event, regardless of whether his culpability rises to the level of a criminal offense.

We find no merit in W.M.'s assertion that the trial court's finding of harm rests entirely upon his incarceration. W.M.'s incarceration was, however, properly taken into account by the trial court. In re L.A.S., 134 N.J. 127, 143 (1993) (holding that incarceration may be a material factor that bears on whether parental rights should be terminated).

We also find no merit in W.M.'s assertion that the Division failed to establish the first prong of the "best interests" standard because it did not prove a pattern of parental inaction and neglect. As we stated previously, "a particularly egregious single harm" may be sufficient to meet the first prong of the "best interests" test. K.H.O., supra, 161 N.J. at 348. The record clearly and convincingly established that W.M.'s actions on June 14, 2007 were particularly egregious and harmed the children.

Next, W.M. argues that the Division failed to present clear and convincing evidence to establish the second prong of the "best interests" standard, which requires a showing that a parent is unable or unwilling to eliminate the harm to the children, or provide a safe and stable home for the children, and a delay in a permanent placement will further harm the children. N.J.S.A. 30:4C-15.1(a)(2). Again, we disagree.

Here, the trial court noted that W.M. had been incarcerated since June 14, 2007, and if convicted, his incarceration would continue for the foreseeable future. The court pointed out that, at the time of the trial, the children had been in foster care for two years and during that time, they had formed strong bonds with their maternal aunt, with whom they had been living since March 2008. We are satisfied that, in light of this evidence, the trial court properly found that W.M. will be unable to eliminate the harm facing the children in the foreseeable future and the children would suffer further harm if a permanent placement is further delayed.

W.M. additionally contends that the Division failed to establish the third prong of the "best interests" standard, which requires, among other things, that the Division must make "reasonable efforts" to help W.M. overcome the circumstances that led to the children's placement outside the home. N.J.S.A. 30:4C-15.1(a)(3). In this regard, W.M. asserts that the Division failed to arrange for the children to visit him in jail. He contends that there was no evidence that the children would be harmed by such visits. In our view, these arguments are without merit.

Evidence was presented at the trial which indicated that both N.M. and S.M. witnessed domestic violence between their parents and both of these children may have witnessed their mother's fatal shooting on June 14, 2007. The record also shows that the children were traumatized by these experiences. At times, N.M. imitated her mother lying on the floor after she was shot. In addition, when she was playing with other children in day care, N.M. pretended to be shooting a gun. N.M. also had nightmares and S.M. often would scream throughout the night. N.M. also indicated that she did not want to visit W.M. In light of this evidence, the Division reasonably chose not to arrange for the children to visit W.M. in prison.

In addition, W.M. argues that the Division failed to establish the fourth prong of the "best interests" standard, which requires, among other things, a showing that termination of parental rights would not cause more harm than good. N.J.S.A. 30:4C-15.1(a)(4). This contention also is without merit.

Dr. Margaret Beekman (Beekman), who is a psychologist, testified at trial that the children had formed strong bonds with their maternal aunt and they would suffer severe and lasting harm if they are removed from her care. Beekman also stated that the children were at significant risk of emotional harm as a result of their mother's traumatic death, which had substantially disrupted their lives and required their placement in foster care. Beekman additionally testified that the children were in need of a stable home, in order to reduce the risk of psychological harm. In our view, the evidence clearly and convincingly supports the court's finding that termination of W.M.'s parental rights will not do more harm than good.

W.M. further argues that he was denied the effective assistance of counsel in the guardianship trial. He asserts that his trial attorney erred by failing to present evidence concerning his relationship with the children. He also asserts that his trial attorney was deficient because he failed to arrange for an evaluation of his bonds with the children.

We permitted W.M. to supplement the record on appeal with his certification, as well as certifications by his mother, aunt and sister, which set forth facts concerning W.M.'s relationship with the children. We additionally allowed W.M. to supplement the record with a certification by his attorney in the criminal case, who stated that he had advised W.M.'s attorney that W.M. should not testify at the guardianship trial because his statements could be used against him in the criminal case. W.M.'s counsel in the criminal matter also said that he advised W.M.'s attorney that he had no objection to a bonding evaluation so long as W.M. made no statements regarding S.C.'s death.

We are satisfied that W.M.'s ineffective-assistance-of- counsel claim can be resolved based on the record before us. We also are satisfied that W.M. was not denied the effective assistance of counsel in this matter, under the standards established in N.J. Div. of Youth & Fam. Srvs. v. B.R., 192 N.J. 301 (2007). To prevail on that claim, W.M. must show that his attorney's performance fell below an objective standard of competency and that, but for counsel's deficient performance, the result of this proceeding would have been different. Id. at 307-08 (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984)).

We will assume for purposes of this decision that W.M.'s attorney erred by failing to present evidence concerning W.M.'s relationship with the children and failing to arrange for a bonding evaluation. We are nevertheless convinced that the outcome of this proceeding would have been the same had counsel taken those steps.

The evidence presented at trial clearly and convincingly established that the children were harmed by their relationship with W.M., that W.M. will be unable to eliminate the harm in the foreseeable future, and the children will suffer serious and enduring harm if they are removed from their maternal aunt, who is prepared to adopt them, as well as S.C.'s other children. We do not believe that the trial court could reasonably have found that the termination of W.M.'s parental rights was not warranted even if W.M. established that he had a good relationship with and had formed parental bonds with the children, prior to the tragic events of June 14, 2007.

Affirmed.

 

In its opinion, the court noted that C.C. had been named as the biological father of D.C. The court pointed out, however, that the Division had offered him paternity tests but he failed to appear for the tests or participate in the trial. C.C. has not appealed. The Division's request for guardianship of Z.C. had been severed.

(continued)

(continued)

16

A-6188-08T4

RECORD IMPOUNDED

June 4, 2010