NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

K.W.,

Defendant-Appellant,

and

S.M.,

Defendant.

IN THE MATTER OF THE GUARDIANSHIP OF

J.A., a Minor.

October 7, 2016

Submitted September 21, 2016 Decided

Before Judges Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-261-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lauren J. Oliverio, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Tracye Wilson Elliot, Designated Counsel, on the brief).

PER CURIAM

Defendant K.W. appeals from the Family Part's October 15, 2015 judgment terminating his parental rights to his biological son, J.A.1 We affirm for the reasons stated by Judge Bernadette N. DeCastro in her comprehensive nineteen-page written opinion issued with the order.

The evidence is set forth at length in Judge DeCastro's opinion and need not be repeated in the same level of detail here. Summarizing the evidence most pertinent to the present appeal, it is undisputed that since J.A.'s birth in April 2003, he has been in eight different foster placements. Defendant has an extensive criminal history, having been incarcerated from 1993 to 1997, 1998 to 2001, 2004 to 2007, 2010 to 2014, and again in August 2015. He remained incarcerated in the Bergen County Jail on a charge of armed robbery at the time of the guardianship trial, which was conducted on September 25, 29, and October 2, 2015.

Division caseworkers testified that defendant was provided visitation with J.A. while in prison, where defendant also received substance abuse services and attended a job training program. When not incarcerated, the Division made several recommendations to defendant for substance abuse treatment, psychological evaluations, supervised visitation, counselling services at Catholic Charities, and a parenting skills class. Nonetheless, defendant failed to complete substance abuse assessments and continued to test positive for marijuana, alcohol, opiates, cocaine, and methadone. While defendant initially exercised visitation with J.A. regularly, his compliance waned and eventually he ceased making contact with the Division. Defendant's last visitation with J.A. was scheduled on March 18, 2015, some six months prior to the guardianship trial, but defendant did not attend.

The Division's expert, Karen D. Wells, Psy.D., presented unrebutted testimony that while J.A. knows defendant to be his father, he does not look to defendant for emotional or psychological support. Dr. Wells noted that J.A. has never lived with defendant and does not wish to live with him. Based on defendant's recidivism and lack of stability, she concluded defendant was unable to provide J.A. with a safe and stable home. Dr. Wells further opined that J.A.'s bond with his current resource parents is secure; that removing J.A. from their care would likely cause him emotional distress; and that it would not be in J.A.'s best interest to delay placing him in a permanent living situation with his resource parents.

The Law Guardian presented the testimony of an expert psychologist, Eric Kirschner, Ph.D., who conducted a bonding evaluation on July 23, 2015, between J.A. and his resource parents, who want to adopt him. Dr. Kirschner observed J.A. to have healthy, positive, and mature interactions with his resource parents, and that J.A. perceived them as reliable figures in his life who could keep him safe. Dr. Kirschner concluded that removing J.A. from this relationship, or further delaying permanency, would cause J.A. harm.

After reviewing the testimony and evidence, Judge DeCastro found that the Division had satisfied all four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a). She concluded that termination of defendant's parental rights was in J.A.'s best interest. This appeal followed.

Our scope of review on appeals from orders terminating parental rights is limited. In such cases, the trial court's findings generally should be upheld so long as they are supported by "adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). A decision in this context should only be reversed or altered on appeal if the trial court's findings were "so wholly unsupportable as to result in a denial of justice." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004) (citations omitted). We must give substantial deference to the trial judge's opportunity to have observed the witnesses first hand and to evaluate their credibility. R.G., supra, 217 N.J. at 552. Even where the appellant "allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," deference must be afforded unless the court "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) (citations omitted).

On appeal, defendant argues that the trial court erred in finding that the Division proved by clear and convincing evidence the four statutory prongs contained in N.J.S.A. 30:4C-15.1(a). His arguments are not supported by the record and are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). Judge DeCastro thoroughly reviewed the evidence presented at the trial, made detailed findings as to each prong of N.J.S.A.30:4C-15.1(a), and concluded the Division had met by clear and convincing evidence all of the legal requirements for an order of guardianship. The judge's opinion tracks the statutory requirements of N.J.S.A.30:4C-15.1(a), accords with applicable case law, including In re Guardianship of K.H.O., 161 N.J.337 (1999), In re Guardianship of D.M.H., 161 N.J.365 (1999), and N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.591 (1986), and is more than amply supported by substantial and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.420, 448 (2012).

Affirmed.

1 The biological mother S.M., whose parental rights were also terminated, has not appealed her termination or participated in this appeal.