NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.C.

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NOT FOR PUBLICATION WITHOUT THE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 binding only 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.

J.C.,

Defendant-Appellant,

and

D.R., Deceased,

Defendant.

_____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF T.R., S.R., M.R. AND L.R., minors.

_____________________________________

November 28, 2016

Argued November 9, 2016 Decided

Before Judges Reisner and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-246-15.

Clara S. Licata, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Licata, on the brief).

Renee Greenberg, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Greenberg, on the brief).

Nancy P. Fratz, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, attorney; Ms. Fratz, on the brief).

PER CURIAM

Defendant J.C. appeals from a January 21, 2016 order terminating her parental rights to her four children, T.R., S.R., M.R., and L.R.1 The Division of Child Protection and Permanency (Division), joined by the children's Law Guardian, argue that the order should be affirmed. After reviewing the record, we affirm substantially for the reasons stated by the Family Part judge in her comprehensive written opinion issued on January 21, 2016.

The trial evidence is set forth at length in the judge's opinion and need not be repeated here in the same level of detail. The Division removed defendant's three oldest children from her custody on January 28, 2014, after finding the family living in filthy and unsafe conditions, in an unheated house strewn with garbage and debris. The two older children, ages three and four, were running around the house uncontrollably, and the third child, age fifteen months, was alone upstairs with unprotected access to the staircase. All of the children appeared not to have been bathed in weeks. Notably, this was the second time the Division had intervened in defendant's family due to their living in unsanitary and unsafe conditions.

The three children, two of whom had special needs, were placed with resource parents. When the fourth child, L.R., was born in July 2014, he was also placed in a resource home due to concerns about defendant's inability to care for him. The Division provided defendant with a plethora of services designed to improve her parenting skills and cope with her children's behavior issues. She also received housekeeping services and psychological therapy.

However, the Division presented unrebutted expert testimony that, due to her cognitive limitations and depression, defendant had not been able to learn the skills she needed to safely and effectively parent her children. The expert, Dr. Miller, explained in detail how defendant's limitations made her unable to care for these children, and how returning the children to her custody would cause them to regress from the progress they had made while living with their resource family. Additionally, he noted that defendant was unemployed, facing eviction from her home, and did not seem able to care for herself.

Dr. Miller also testified that the children did not have a secure parent-child bond with defendant, and she did not demonstrate an ability to safely or effectively care for them. All four children had been placed with defendant's brother and his wife, with whom they had a bond. The brother and his wife were capable parents who were willing to adopt the children. The expert testified that the children had a paramount need for a permanent home. After the Division presented its case, the defense rested without calling any witnesses.

In her comprehensive opinion, the judge found the Division's evidence persuasive and credited Dr. Miller's opinions. She noted that defendant had not produced any evidence to rebut the Division's case, and concluded that the Division had satisfied all four prongs of the best interests test by clear and convincing evidence. See N.J.S.A. 30:4C-15.1(c).

On this appeal, we owe deference to the trial judge's decision, "because [she] possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). Additionally, the trial judge has the ability "to make first-hand credibility determinations about the witnesses who appear on the stand; [the judge] has a feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (internal quotations omitted). We will not interfere unless the trial judge's findings are not supported by substantial credible evidence and are "so 'wide of the mark' that our intervention is necessary to correct an injustice." F.M., supra, 211 N.J. at 448-49 (citation omitted).

Based on our review of the record, we find that the trial judge's decision is supported by substantial credible evidence. Ibid. We also conclude that defendant's appellate arguments are not supported by the record and are without sufficient merit to warrant discussion beyond the following comments. R. 2:11-3(e)(1)(E).2

Defendant contends that the trial judge mistakenly placed the burden of proof on her rather than on the Division. We disagree. The judge's opinion contains one sentence referring to defendant failing to present evidence "that the termination of her parental rights would not do more harm than good to the children." Clearly the word "not" is a typographical error. Moreover, read in context, the sentence does not indicate that defendant had any proof burden but only that she produced no evidence to rebut the Division's case. In the next paragraph, the opinion states that the Division satisfied "its burden . . . by presenting clear and convincing evidence." We conclude that the trial judge correctly placed the burden of proof on the Division.

Affirmed.

1 The children's father, D.R., died in December 2014, before the Division filed its complaint seeking termination of parental rights.

2 We decline to address defendant's arguments concerning the Americans With Disabilities Act (ADA), because those contentions were not presented to the trial court. See State v. Robinson, 200 N.J. 1, 20 (2009). However, we note that the ADA may not be interposed as a defense to termination of parental rights. See N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 441-42 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).