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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4774-10T1

A-5472-10T1

A-1253-11T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

W.T., Jr.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF J.T., W.T.,

AND A.T., minors.

___________________________________

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

W.T.T., II,

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.L.T., a minor.

____________________________________

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Appellant,

v.

W.T.T., II,

Defendant-Respondent.

________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF W.T. AND J.T., minors.

________________________________

January 16, 2013

 

Submitted January 8, 2013 - Decided

 

Before Judges Reisner, Yannotti, and Harris.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket Nos. FN-04-241-09, FG-04-103-11 and FG-04-177-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Miles Lessem, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Michelle D. Perry-Thompson, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for W.T. and J.T., minors (Noel C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for A.T., a minor (Damen J. Thiel, Designated Counsel, on the brief).

PER CURIAM

Defendant Walter T., Jr. (Walter)1 filed three appeals seeking review and reversal of the following determinations of the Family Part: (1) the December 22, 2009 order finding that Walter abused or neglected his three children Walter III (eleven years old), James (ten years old), and Amy (five years old);2 (2) the May 26, 2011 order terminating Walter's parental rights to Amy; and (3) the September 28, 2011 order terminating Walter's parental rights to Walter III and James.3 We consolidated the appeals, and now affirm each order in its entirety.

I.

A.

The New Jersey Division of Youth and Family Services (the Division)4 became involved in the lives of Walter, Dorothy, and their children in 2004. Between then and 2008, the family was the subject of numerous referrals, mostly related to alleged domestic violence and substance abuse by the adults. In that same time period, Walter was convicted of several criminal offenses, served numerous short terms of incarceration, and was sentenced to probation for terms up to five years.

The Division maintained oversight and supervision over the family for several years. The children were living with Dorothy and their paternal grandparents in November 2008, when the Division conducted an emergency removal of the children due to Dorothy's substantiated substance abuse. Walter was not found suitable to take custody of his children at that time; instead, the children were placed with another relative. Unfortunately, that placement did not last, as the children were abandoned and had to be placed elsewhere. Several weeks later, the children were returned to Dorothy's care, but Walter pitched in when Dorothy disappeared for several weeks.

Throughout the ensuing months, things did not improve for the family. The Division received more referrals about Dorothy's and Walter's separate incidents of substance abuse in June, July, and August 2009. By the end of the summer, Walter III and James were placed with one resource family, and Amy was placed with another.

 

 

B.

The Division commenced the present Title Nine5 action in December 2008. The court held a factfinding hearing regarding abuse and neglect claims against Walter on December 22, 2009. Walter did not appear for the hearing until summations had already commenced. As part of its case in chief, the Division sought to enter into evidence several lengthy exhibits, which documented the Division's involvement with this family, including documentary evidence of Walter's criminal history and positive drug tests. After some discussion ensued, which resulted in one exhibit being amended to reflect an addition sought by Walter's attorney, the exhibits were admitted into evidence without objection. Walter's counsel indicated that his client had "authorized [him] to proceed with basically making the legal argument because of the we're going to stipulate to the positive drug test."

The Division then advised the court that it wished to rest its case based on the submission of the exhibits, although a caseworker was present for cross-examination if needed. Walter did not submit any additional evidence at the hearing.

Following a recess so the court could review the evidence and decisional law, Judge Deborah Silverman Katz found that the Division had proven by a preponderance of the evidence that Walter had abused or neglected his children. In her oral decision, Judge Silverman Katz stated:

From the facts deduced from the exhibits, this Court finds that [Walter] is a substance abuse user, has anger issues and criminal history related to that drug use.

 

Further, this Court finds [Walter's] drug use has occurred near or while caring for the children.

 

Pursuant to N.J.S.A. 9:6-8.50, [Walter's] continued drug use, at times while caring for his children, constitutes abuse of those children under N.J.S.A. 9:6-8.21(c)(4)(b)[.]

 

Thus, Walter's "ingestion of illegal and mind-altering substances clearly establishes that caretaking ability may become substantially impaired, and that caring for a child or children while so impaired places the child or children at imminent risk of harm. No expert testimony is needed to infer that." The judge stated that she was not constrained to "wait to act until a child is actually irreparably impaired by parental inattention or neglect." Therefore, the Division, "by a preponderance of the evidence, has demonstrated that [Walter's] continued use of drugs poses a substantial risk of harm to the children while under his care, thus constituting abuse and/or neglect."

The order memorializing this determination was entered the same day.

C.

Over the next almost-two years, the Division provided Walter with a variety of social services, including anger management, group, and individual therapy; drug treatment in New Jersey and Florida; parenting classes; psychological evaluations; and transportation resources. Over that period, Walter completed some, but not all of the instructional classes; tested positive, but sometimes negative, for substance abuse; and visited occasionally with his children.

The guardianship action relating to Amy was commenced by the Division in July 2010.

In October 2010, the Division's expert, psychologist Linda Jeffrey, conducted a bonding and sibling evaluation regarding Amy, who was then three years old.6 Dr. Jeffrey concluded that Amy "displayed insecure attachment" to Walter. However, the girl "alluded to her foster parents and their household as her home." After reviewing the child's experiences with Walter, Dr. Jeffrey concluded that he "is not prepared to provide safe, reliable and stable parenting" for Amy. Furthermore, she "[did] not recommend the placement of [Amy] in [Walter's] care," finding that "[Amy] is likely to be placed at risk for harm in the care of [Walter]."

Contrariwise, Dr. Jeffrey's evaluation of Amy's relationship with her foster family revealed that

[Amy] is securely attached to her foster parents. Severance of a secure attachment is likely to place a child at risk for serious and enduring harm. Separation from her foster parents at this point in her development is likely to cause her serious and enduring harm. . . . This evaluator recommends that [Amy] remain in the care of the foster parents with whom she has established safety, security, and trust.

At Amy's guardianship trial in May 2011, the Division presented three witnesses: Dr. Jeffrey and two of its caseworkers. Walter testified on his own behalf. Numerous documents and reports were admitted into evidence. At the conclusion of the proceeding, Judge Angelo DiCamillo issued a ten-page written opinion concluding after expressly analyzing the four-factors of N.J.S.A. 30:4C-15.1(a) that the Division had

met its burden under the four prongs of the best interests of the child standard. The removal of [Amy] from her foster family will cause her psychological distress, and would expose her to a severe peril of living with a careless, abusive, manipulative drug addicted parent. This court after considering all factors concludes the parental rights of [Walter] must be terminated.

 

The final judgment of guardianship was issued on May 26, 2011.

D.

The guardianship action relating to Walter III and James was commenced by the Division in April 2011. Following Amy's guardianship trial, the Division continued to assist Walter in receiving counseling and treatment. In June 2011, Walter began supervised visitation with his sons, but such visitation was terminated less than two months later because of Walter's non-compliance with program strictures.

At the subsequent guardianship trial in September 2011, the Division presented the report and testimony of Dr. Jeffrey, along with transcripts and exhibits from Amy's guardianship trial, and several additional reports. Dr. Jeffrey testified that the children have

experienced a significant degree of instability in their lives, particularly since 2008, so their middle childhood years have been very insecure and unstable, a lack of resolution, and they have very strong feelings about their parents and their parents not doing what their parents needed to do in order to be prepared to have reunification possible. . . . [T]hey have significant issues that are going to take a long time to work through.

 

Dr. Jeffrey concluded that stability was not going to come through reunification with Walter.

Caseworker Leana Torres also testified on behalf of the Division. She recounted the extensive chronicle of the family's relationship with the Division; described Walter's counseling and treatment history; and explained the many drug screening results. Torres noted that Walter had missed several therapy appointments and visits with the children.

At the conclusion of the one-day trial, Judge John A. Fratto issued an oral decision in which he found Dr. Jeffrey to be credible, concluding that Walter's use of drugs was one reason for "his inability to be an effective parent." The judge found that the Division had proven "the four prongs of [N.J.S.A.] 30:4C-15.1[(a)] . . . by clear and convincing evidence." More to the point, the judge declared,

[t]he children's safety, their health, their development has clearly been endangered by the parental relationship . . . because of the doings, carryings on of [Walter], they've become ping pongs, bouncing back and forth between various caretakers. So their development has been endangered and to put them in [Walter's] hands with his history of drug abuse would clearly endanger them in the future. He is unwilling or unable we'll give him the benefit of the doubt. Let's say he is unable because of his personality makeup to eliminate the harm facing the children because he is unable to stay off of drugs for any substantial period [of] time.

 

The final judgment of guardianship was entered on September 28, 2011. These appeals followed.

II.

On appeal, Walter raises the following points for our consideration:

POINT I: THE TRIAL COURT ERRED BY FINDING THAT DEFENDANT ABUSED AND NEGLECTED HIS CHILDREN.

 

A. THE COURT FAILED TO OBTAIN DEFENDANT'S CONSENT TO THE STIPULATION OF FACTS.

 

B. THE FINDINGS OF ABUSE AND NEGLECT WERE INVALID DUE TO THE EGREGIOUS DUE PROCESS VIOLATIONS, BUT ASSUMING FOR THE SAKE OF ARGUMENT THAT SUCH WAS NOT THE CASE, THERE WAS STILL INSUFFICIENT EVIDENCE TO FIND ABUSE AND NEGLECT.

 

POINT II: DYFS FAILED TO PRODUCE EVIDENCE THAT DEMONSTRATED IT MET ITS BURDEN TO SATISFY THE FIRST, SECOND AND FOURTH PRONGS AS SET FORTH IN N.J.S.A. 30:4C-15.1(a) FOR TERMINATING A PARENT'S RIGHTS.

 

A. PRONG ONE OF THE TEST WAS NOT MET BECAUSE DYFS FAILED TO PROVE THE DEFENDANT CAUSED OR WOULD HAVE CAUSED HIS CHILDREN'S SAFETY, HEALTH OR DEVELOPMENT TO BE ENDANGERED.

 

B. DYFS FAILED TO PROVE THAT DEFENDANT IS UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILDREN.

 

C. THE TERMINATION OF W.T.'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

 

After considering the arguments presented in light of the record and the applicable law, we are unpersuaded by Walter's contentions. Moreover, the three trial judges' factual findings are firmly supported by substantial, credible evidence in the record as a whole, which fully buttress their legal conclusions. See New Jersey Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 461 (App. Div. 2012) (citing 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)).

A.

"Actions initiated by [the Division] charging abuse and neglect of children are governed by statute." N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 163 (App. Div. 2003); N.J.S.A. 9:6-8.21 to 8.73. N.J.S.A. 9:6-8.21(c)(4)(b) defines "[a]bused or neglected child" as:

(4) . . . a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of similarly serious nature requiring the aid of the court[.]

A parent "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S. v. N.J. Div. of Youth & Family Servs., 157 N.J. 161, 181 (1999). An inquiry under N.J.S.A. 9:6-8.21 should focus on the harm to the child, rather than on the intent of the caregiver, in order to allow the Division to properly "protect children from a wide range of conduct that clearly qualifies as neglect." G.S., supra, 157 N.J. at 180-81.

A "judge's determination that a child has been abused or neglected must be based on a preponderance of the evidence standard and 'only competent, material and relevant evidence may be admitted.'" N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 262 (App. Div. 2002) (quoting N.J.S.A. 9:6-8.46(b)). Stipulations of fact may substitute for the introduction of reliable evidence on an issue, if the knowing and voluntary nature of the stipulation is established. Id. at 265.

We have expressed concerns about stipulations to abuse or neglect entered into by defendants at factfinding hearings. See N.J. Div. of Youth & Family Serv. v. M.D., 417 N.J. Super. 583, 616-17 (App. Div. 2011). This is because a defendant who enters into such a stipulation is "waiving [his] right to a hearing at which [the Division] must prove abuse or neglect by a preponderance of the evidence." Id. at 617-18 (citing J.Y., supra, 352 N.J. Super. at 266).

In this case, Walter's stipulation in the Title Nine trial was neither to any facts nor to abuse or neglect. Instead, the stipulation was a routine lack of objection to allow the Division's documentary proofs to be admitted into evidence. This concession is fundamentally unlike those stipulations of facts that must be accompanied by knowing and voluntary consent.

Within the array of documents admitted into evidence and considered by Judge Silverman Katz were proofs sufficient to satisfy the requirements of Title Nine, including Walter's unrelenting substance abuse, which compromised the safety of his children.

When determining whether or not a child has been abused or neglected, the trial court must base its findings on the totality of the circumstances, since "[i]n child abuse and neglect cases the elements of proof are synergistically related. Each proven act of neglect has some effect on the [child]. One act may be 'substantial' or the sum of many acts may be 'substantial.'" N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010).

 

[N.J. Div. of Youth & Family Serv. v. V.T., 423 N.J. Super. 320, 329-30 (App. Div. 2011) (alterations in original).]

We are unable to discern any defect in the proceedings due process or otherwise that would erode our confidence in the sufficiency of Judge Silverman Katz's conclusions. Walter's so-called stipulation played no significant role in the determination of abuse or neglect.

B.

Termination of parental rights is governed by N.J.S.A. 30:4C-15.1(a). The legislation sets forth a four-factor test that must be met by clear and convincing evidence in order to terminate parental rights:

(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 division 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); see also N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010).]

 

The statute demands that the best interests of the child govern whether termination is proper. The test is demanding, but not rigid. Instead, each case is "extremely fact sensitive" and the four prongs interact with one another. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

This analysis requires "particularized evidence" that is "clear and convincing" for all of the factors. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). Presumptions have no place in this judicial paradigm of parental fitness. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007).

"Appellate review of a trial court's decision to terminate parental rights is limited, and the trial court's factual findings 'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (citations omitted). Such appellate deference is particularly appropriate in termination of parental rights cases because the findings reflect the court's assessments of witness credibility and its "feel of the case." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also Cesare v. Cesare, 154 N.J. 394, 412-13 (1998) ("Because of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding.").

Our review of the record convinces us that the conclusions of Judges DiCamillo and Fratto are amply supported by the record. Moreover, to delay permanent placements for the children would serve to only further the harm they have experienced. Thus, "the issue [is] whether the parent can cease causing the child harm before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), certif. denied, 171 N.J. 44 (2002). In this case, there is clear and convincing evidence that Walter is unable to cease causing his children harm. Therefore, delaying permanent placement does become "a harm in and of itself." Ibid.

Affirmed.

 

1 We use fictitious names to refer to the individuals in this case for the purposes of confidentiality and clarity.

 

2 Separate law guardians were appointed for the children. They support affirming the orders of the Family Part.

3 The parental rights of Dorothy the children's mother and Walter's paramour were similarly terminated, but Dorothy has not appealed from those judgments of guardianship.

4 Effective June 29, 2012, the Division was renamed the Division

of Child Protection and Permanency. L. 2012, c. 16.

5 N.J.S.A. 9:6-1 to -8.73.

6 The bonding evaluation also considered Walter's relationship with Walter III and James.