DIVISION OF CHILD PROTECTION AND PERMANENCY v. Y.C.

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RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

Y.C.,1

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF R.X.C, Y.L.C., II AND L.C.,

Minors.

__________________________________

June 27, 2016

 

Before Judges Fuentes, Kennedy, and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04 153-15.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert W. Ratish, Designated Counsel, on the brief).

Robert Lougy, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jennifer A. Lochel, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Margo E.K. Hirsch, Designated Counsel, on the brief).

PER CURIAM

Defendant Y.C. is the biological father of three children: Y.L.C., II, a boy born in August 2010; R.X.C., a girl born in August 2011; and L.C., a boy born in July 2012.2 Defendant appeals from the order of the Family Part terminating his parental rights to these children. The children's biological mother voluntarily surrendered her parental rights to her children on the same day the Division of Child Protection and Permanency (Division) presented this matter for trial before Judge Francine I. Axelrad. Despite being served with notice, defendant did not appear at trial.3

The Division called two witnesses at trial. Division caseworker Debra Munoz testified that the Division first became involved in this case in 2011, less than a year after the oldest child Y.L.C., II was born. Defendant has been diagnosed with bipolar disorder. His relationship with the mother of the children was tumultuous. The two parents fiercely argued in front of the children, including throwing objects at each other. Under the terms of a safety protection plan executed in 2013, defendant has not had contact with any of the children.

The safety plan was put in place by the Division in response to a referral made by a sign language interpreter who was assisting the children's mother who is deaf. Caseworker Munoz gave the following description of the incident.

A. . . . [The] mother was communicating through a video teleconference for sign language translating, and the person who was in the teleconference observed a male with a closed fist punch a very young child in the stomach. The child was in a crib, and the punch was with such force the child fell back against the crib, hit their head and began to cry.

Q. And as a result of their referral did the Division conduct an investigation.

A. Yes.

Q. And did the Division, during that investigation, have the opportunity to speak with [defendant]?

A. Yes. The Division did.

Q. And what did [defendant] indicate?

A. [Defendant] admitted that he did hit the child with a closed fist.

. . . .

Q. And did [defendant] indicate that he was aware he was not allowed to be in the home?

A. Oh, yes, he knew he was not allowed to be in the home.

Q. And as a result of that referral and investigation were the children removed?

A. Yes, they were.

Q. And since March of 2013, have any of the children specifically referring to Y., R. or L., ever been returned to the care of [their mother] or [defendant]?

A. No, they have not.

The Division also called psychologist Linda Jeffrey, Ph.D., who was admitted by stipulation as an expert in clinical and forensic psychology and drug and alcohol abuse. Dr. Jeffrey examined all three children and their pre-adoptive foster families. Although each child was residing in separate homes and were planning to be adopted by separate families, the pre-adoptive parents all agreed to allow the siblings to remain in contact. As Dr. Jeffrey noted, this cooperation among the families was "indicative that these are three quite competent resource homes. They are emotionally very attuned to what the children's experiences have been, and in doing what is constructive for the children. . . . I think it was quite impressive to me that there were three high functioning resource families in this case . . . ."

Dr. Jeffrey also opined that all three children had bonded with their respective families and were thriving in the care of their foster parents. Dr. Jeffrey also concluded that removing the children from their stable and secure home environments would cause them irreparable psychological harm.

The Division made several attempts to have defendant evaluated by Dr. Jeffrey. In fact, the Division arranged for a driver to pick up defendant from his residence and transport him to the Division's Office in Camden to meet with Dr. Jeffrey. Defendant failed to keep this appointment as well as two subsequent appointments he made to see Dr. Jeffrey. Defendant also failed to visit the children under Division supervision. Since April 2014, defendant had not completed a substance abuse evaluation, or attended any of the classes for batterer's counseling, parenting classes, or anger management counseling.

Based on this record, Judge Axelrad found the Division had proven, by clear and convincing evidence, all four prongs under N.J.S.A. 30:4C:15.1(a), warranting the termination of defendant's parental rights to Y.L.C., II, R.X.C., and L.C. Judge Axelrad explained her findings and conclusions of law in a comprehensive, well-reasoned oral opinion delivered from the bench on August 25, 2015.

Our standard of review is well-settled. Our Supreme Court has recognized that Family Part judges have, by virtue of their training and experience, a particular sensitivity to the complex, emotionally laden cases that come before them on a regular basis. See Cesare v. Cesare, 154 N.J. 394, 413 (1998). We thus review the factual findings made by the Family Part mindful of the court's "special jurisdiction and expertise in family matters." Ibid. This enhanced deference is particularly appropriate when the trial judge's findings are based on the credibility of witness testimony. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

In reviewing the Family Part judge's factual findings in support of a decision to terminate a defendant's parental rights, our role is limited. We are bound to uphold the decision if

the factual findings undergirding the trial court's decision . . . are supported by adequate, substantial and credible evidence on the record. Additionally, as a general rule, we must grant deference to the trial court's credibility determinations. However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded. Still, even in those circumstances we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made.

[N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (emphasis added) (citations omitted).]

In an action seeking the involuntary termination of parental rights, the Division must establish, by clear and convincing evidence, each of the following four prongs

(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).]

As the Court has made clear, "[t]he focus of a termination-of-parental-rights hearing is the best interests of the child. Because of the fundamental nature of the parent-child relationship, the burden is on the [Division] . . . to satisfy by clear and convincing evidence [these] four factors . . . ." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012) (citations omitted). However, "those four prongs are not 'discrete and separate,' but 'relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" Id. at 448 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).

In applying N.J.S.A. 30:4C-15.1(a), we must also be conscious of the fact that "the cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." In re Guardianship of J.C., 129 N.J. 1, 10 (1992) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986)). In balancing the competing interest inherent in this kind of determination, the court is obligated to act in the best interest of the child.

Here, we are satisfied Judge Axelrad's decision is well-supported by competent credible evidence in the record and, most importantly, is clearly in the best interests of these three children.

We thus affirm substantially for the reasons expressed by Judge Axelrad in her oral decision of August 25, 2015.

Affirmed.

1 The parties are identified by initials because records relating to Division of Child Protection and Permanency proceedings "are excluded from public access." R. 1:38-3(d)(12).

2 Defendant has two other children with two other women. These children reside with their respective mothers and are not a part of this appeal.

3 Defendant was nevertheless represented in this matter, including trial, by an attorney assigned by the Office of Parental Representation in the Office of the Public Defender.


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