DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.R.

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NOT FOR PUBLICATION WITHOUT THE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.

D.R.,

Defendant-Appellant,

and

I.A.,

Defendant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

T.A.,

Minor.

___________________________________

December 12, 2016

Submitted October 26, 2016 Decided

Before Judges Alvarez and Higbee.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-83-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Theodore J. Baker, Designated Counsel, on the briefs).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant, D.R., appeals from a May 4, 2015 guardianship judgment terminating his parental rights to his daughter, Tonya,1 who is now three years old. Tonya's adoption by her maternal grandparents, who have raised her since birth, is pending. The family court judge granted termination of defendant's parental rights primarily because of defendant's history of substance abuse and unaddressed mental health issues. Defendant does not contend that he is currently able to provide Tonya with a safe and stable home, but argues that he has made considerable progress in maintaining his sobriety. Defendant further maintains that severing his relationship with the child would do more harm than good. We affirm the decision of the trial court.

Parents have a fundamental, constitutionally protected liberty interest in the care, custody, and supervision of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Nonetheless, that interest is not absolute and "must be balanced against 'the State's parens patriae responsibility to protect the welfare of children.'" M.M., supra, 189 N.J. at 294-95 (Wallace, J., dissenting) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). In some cases, however, termination of a parent's constitutionally protected interest may be necessary to protect a child. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).

The Division of Child Protection and Permanency (the Division), formerly known as the Division of Youth and Family Services (DYFS), is "the State agency for the care, custody, guardianship, maintenance and protection of children." State ex rel. J.S., 202 N.J. 465, 477 (2010) (quoting N.J.S.A. 30:4C-2(a)). When the Division seeks to terminate parental rights, a court must determine if doing so is in the best interest of the child. The "best interests" evaluation has been codified in N.J.S.A. 30:4C-15.1(a) and requires the Division prove the following by clear and convincing evidence

(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

. . . .;

(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.

[See also A.W., supra, 103 N.J. at 604-11 (discussing the four factors in depth).]

Family courts "have special jurisdiction and expertise," thus their fact-finding is entitled to deference. Cesare v. Cesare, 154 N.J. 394, 413 (1998). For that reason, we will not disturb a Family Part judge's findings of fact unless "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (quoting Rova Farms Resort, Inc. v. Inv'rs. Ins. Co., 65 N.J. 474, 484 (1974)). We owe no deference, however, to "[a] trial court's interpretation of the law and the legal consequences that flow from established facts[.]" Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

To prove the statutory criteria, the Division presented the testimony of two experts who had evaluated defendant. Defendant suffers from a rapid-cycling bipolar disorder. Both experts testified that, during their interviews with defendant, they observed symptoms of depression or mania, and disorganized, grandiose thought patterns. Both experts opined defendant's mental illness will continue to interfere with his ability to parent his child in the future. He refuses to take medication for his illness.

Defendant testified as to his efforts to maintain sobriety, to exercise supervised visitation rights, and otherwise take advantage of offered services. He produced an expert who declined to diagnose him as bipolar, but acknowledged, in her interview with defendant, that defendant's speech was rapid and his thoughts disorganized and grandiose. Defendant's expert declined to offer an opinion on his ability to parent his child.

It was established at trial that defendant has a history of decades of substance abuse and that his untreated mental illness make him vulnerable to future substance abuse; furthermore, it was established his mental illness itself was a threat to the child's well-being. The bonding evaluation depicted a strong loving bond between the child and her maternal grandparents. The same bond did not exist between defendant and the child. The child has never resided with defendant.

Following the trial, Judge John A. Conte issued a comprehensive written opinion in which he reviewed the testimony and documentary evidence, carefully considered defendant's arguments, and concluded the Division had clearly and convincingly proved that terminating defendant's parental rights was in the child's best interests. We affirm, substantially for the reasons detailed in Judge Conte's opinion. Judge Conte's opinion tracks the statutory elements of N.J.S.A. 30:4C-15.1(a) and his decision is amply supported by credible evidence in the record.

Affirmed.

1 A fictitious name used by the trial judge in his opinion.