DIVISION OF YOUTH AND FAMILY SERVICES v. R.L.W IN THE MATTER OF THE GUARDIANSHIP OF R.L.I.W

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2566-10T3

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.L.W.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF R.L.I.W.,

Minor.

___________________________________

November 14, 2011

Submitted: October 26, 2011 - Decided:

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-112-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.L.I.W. (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

R.L.W. appeals from a December 3, 2010 judgment of the Family Court terminating his parental rights to his then one-and-one-half year old son, R.L.I.W., and awarding guardianship to the Division of Youth and Family Services (DYFS) for the purposes of effectuating the child's adoption.1 On appeal, R.L.W. argues DYFS did not prove by clear and convincing evidence the four statutory prongs required to establish that his son's best interests require severance of his parental ties. We note the Law Guardian supports termination of R.L.W.'s parental ties to his son.

After considering the record and briefs in light of the applicable law, we are satisfied the trial judge's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff d in part, modified in part and remanded, 179 N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006). We affirm.

I.

Judge Deborah Silverman Katz presided over a one-day trial during which DYFS presented the factual testimony of its caseworker, Nikiya Beaty, and supervisor, Dawn Brach. It also presented the expert testimony of Ronald S. Gruen, Ed.D., who performed a psychological evaluation of R.L.W. and conducted bonding evaluations of R.L.I.W. with both R.L.W. and his resource family parents. Although R.L.W. retained Dr. David Bogacki to perform a psychological evaluation, he did not offer his testimony or report at trial. Nor did R.L.W. testify on his own behalf.

We briefly summarize the cogent facts and evidence presented at trial on October 28, 2010. R.L.I.W. was born on March 27, 2009. His parents were unmarried and he never lived with either of them, having been in DYFS custody since his birth. DYFS was contacted upon R.L.I.W.'s birth because of its open case with N.R.M. involving his half-sister J.S.M., and N.R.M.'s having tested positive for marijuana while in court the prior week. When the DYFS worker arrived at the hospital to take custody of the infant, R.L.W. began shouting and yelling that DYFS was taking his "seed" and he verbally threatened the worker, necessitating the intervention of hospital security. R.L.W. was also ruled out as a viable placement because he tested positive for marijuana and cocaine. R.L.I.W.'s paternal grandmother was ruled out as a placement because she had an outstanding warrant and told DYFS she was not interested; R.L.I.W.'s paternal uncle was ruled out because he lived with the grandmother. R.L.I.W. was placed with the resource family parents who were caring for his half-sister. He has remained in their home, has bonded and thrived, and the resource family parents desire to adopt both children.

In contrast, R.L.I.W. has "no recognition" of his father, who never served in a parenting role, was sporadic in attending the weekly visitation provided by DYFS, and in December 2009, informed the agency he no longer wished to attend visitation. R.L.W. was also noncompliant with the myriad of services provided by DYFS, refusing to attend substance abuse treatment and continuing to test positive for drugs. R.L.W. also had a significant juvenile and adult record. After spending approximately one-third of his life in jail, R.L.W. was arrested just before his son's first birthday for drug possession and weapons charges, and was convicted and sentenced to a six-year term in December 2010.

II.

We begin by noting some basic principles. The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We also have a limited scope of review of the Family Part's factual findings. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.261, 279 (2007). In reviewing the factual findings and conclusions of a trial court, we are obliged to accord deference to the trial judge's credibility determinations and the judge's "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. A.R.G., supra, 361 N.J. Super.at 78 (citing Cesare v. Cesare, 154 N.J.394, 411-12 (1998) and Pascale v. Pascale, 113 N.J.20, 33 (1988)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super.235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J.365, 382 (1999)). We rely upon the trial court's acceptance of the credibility of the expert testimony and the court's fact-findings based thereon, as it is in a better position to evaluate the witness' credibility, qualifications, and the weight to be accorded to the expert's testimony. Ibid.; see alsoIn re Guardianship of J.C., 129 N.J.1, 22 (1992).

We are not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.474, 484 (1974) (citation and quotation marks omitted). Additionally, because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding and the conclusions which flow logically from those findings of fact. Cesare, supra, 154 N.J.at 412-13; M.M., supra, 189 N.J.at 279. Reversal is required only in those circumstances in which the trial court's findings were "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J.at 279 (citation and quotation marks omitted). Applying this standard, we discern ample evidence in the record supporting Judge Silverman Katz's conclusion that R.L.I.W.'s interests required termination of R.L.W.'s parental rights.

The applicable principles are well settled. "Parents have a constitutionally protected, fundamental liberty interest in raising their biological children." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super.376, 382 (App. Div. l998) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982)), vacated on other grounds, 163 N.J.158 (2000). "The Federal and State Constitutions protect the inviolability of the family unit." W.P. & M.P., supra, 308 N.J. Super.at 382 (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972)). However, the government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State, as parenspatriae, may sever the parent-child relationship to protect the child from serious physical and emotional injury. W.P. & M.P., supra, 308 N.J. Super.at 382.

When the child's biological parent resists termination of parental rights, it is the court's function to decide whether the parent can raise the child without causing harm. J.C., supra, 129 N.J.at 10. The cornerstone of our inquiry is not whether the parent is fit, but whether the parent can become fit to assume the parental role in time to meet the child's needs. Ibid. (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.591, 607 (1986)). "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." J.C., supra, 129 N.J.at 10. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." W.P. & M.P., supra, 308 N.J. Super.at 383 (alteration in original) (quoting J.C., supra, 129 N.J.at 10).

The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super.at 383. The State Constitution and N.J.S.A.30:4C-15(c) and 15.1(a) require satisfaction of the "best interests of the child" test by clear and convincing evidence before termination of parental rights can occur. SeeA.W., supra, 103 N.J.at 612; In re Guardianship of Jordan, 336 N.J. Super. 270, 274 (App. Div. 2001). Specifically, the four-prong test set forth in N.J.S.A.30:4C-15.1(a) requires DYFS to prove:

(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.

These criteria are neither discrete nor separate. In re Guardianship of K.H.O., 161 N.J.337, 348 (1999). They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. Ibid. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J.127, 139 (1993)).

III.

On appeal, R.L.W. contends his parental rights were terminated on an improper "better interests" determination rather than the statutory mandated criteria of the "best interests" test. Specifically, R.L.W. contends that instead of focusing on the actual harm to his son caused by R.L.W.'s conduct, his parental rights were terminated because "his status as biological father was delegitimized as an unloving criminal recidivist who was unfit to parent," DYFS was not committed to the success of the reunification effort and thus failed to make "reasonable efforts" under the third statutory prong, and "termination of parental rights would do more harm than good because there were no compelling reasons to terminate [his] parental rights."

R.L.W.'s arguments have no merit whatsoever and warrant no further discussion. We affirm substantially for the cogent and comprehensive reasons articulated on the record by Judge Silverman Katz on December 3, 2010.

1 The guardianship also involved another child, J.S.M., a female born on June 3, 2008. N.R.M. is the mother of both R.L.I.W. and J.S.M. D.V.R. is the biological father of J.S.M. N.R.M. voluntarily surrendered her parental rights to both children. The court entered default judgment against D.V.R. terminating his parental rights to J.S.M. Neither N.R.M. nor D.V.R. have appealed the termination of their parental rights.