DIVISION OF CHILD PROTECTION AND PERMANENCY v. R.W., JR.

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NOT FOR PUBLICATION WITHOUT THE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

A-5176-14T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

R.W., JR. and B.D.-W.,

Defendants-Appellants.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

R.W., III, a Minor.

____________________________________________________

November 10, 2016

Submitted November 1, 2016 Decided

Before Judges Fisher, Leone and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FG-01-58-14.

Joseph E. Krakora, Public Defender, attorney for appellant R.W., Jr. (Eric J. Meehan, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant B.D.-W. (Albert M. Afonso, Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Cynthia Phillips, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, attorney for minor (Todd Wilson, Designated Counsel, on the brief).

PER CURIAM

In these appeals, we consider whether the trial judge correctly concluded the evidence that supported the termination of the parental rights of both parents to one child was clear and convincing. Application of our standard of review requires deference to the judge's findings of fact; accordingly, we affirm.

Parents have a constitutionally protected right to the care, custody and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' and 'rights far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (internal citations omitted). "[T]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.

The constitutional right to the parental relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, a parent's interest must yield to the State's obligation to protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To effectuate these concerns, the Legislature created a test for determining when a parent's rights must be terminated in a child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and convincing evidence 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 . . .;

(3) The [D]ivision 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. The four prongs are "not discrete and separate"; they "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

By way of a thorough written decision, Judge Damon G. Tyner applied these principles and found the Division demonstrated, by clear and convincing evidence, that all four prongs militated in favor of termination of both defendants' parental rights. The child's father, defendant R.W., Jr. (Robert), argues the evidence as to all four prongs was insufficient; the child's mother, defendant B.D.-W. (Bridget), argues only that the Division failed to present clear and convincing evidence on the third prong.

To be sure, the case against Robert is not as strong as it is against Bridget. She, as the judge found, was schizophrenic and very much in denial about it. For example, although Bridget was aware of her condition, at one point she believed it was brought on by a relationship with a prior paramour and, when that relationship ended, she had no further need for medication. The judge heard and relied on evidence of Bridget's "long-standing history of significant mental health concerns" and the Division's expert, whose testimony was not rebutted, that her prognosis was "poor." The credible evidence in support of the first, second and fourth prongs as to her parental rights was found by the judge to be clear and convincing and, as noted earlier, Bridget has not argued to the contrary. We find insufficient merit in her arguments regarding the third prong to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

The judge also determined the evidence regarding Robert clearly and convincingly warranted termination. The judge noted that once the Division intervened a few days after the child's birth in May 2011 Bridget would not participate in a mental health evaluation, and Robert advocated in her favor in that regard. By September 2011, Robert recognized Bridget was "not herself," but, during a visit from Division caseworkers, Robert denied knowledge of Bridget's mental health issues, and Bridget refused to see her therapist or sign a case plan that would require her follow-up with a mental health care provider. The child was not removed at the time because Bridget appeared to act appropriately with the child. But the investigation following a referral a few weeks later demonstrated Bridget's mental health was deteriorating; a plan was implemented that stipulated Bridget would not care for the child unsupervised.

In October 2012, the child was removed by the Division from Robert's custody based on a referral that Robert and the child were living out of a boat stored in a driveway of a Brigantine residence. Although Robert asserted when the police arrived that he and the child only spent one night on the boat, Robert acknowledged he had no home and no money to care for the child.

The judge found from these circumstances and the testimony of several witnesses, including the Division's expert, "that Robert is quite rigid in his thinking" and lacked a mature appreciation for Bridget's mental health. For example, Robert declared Bridget miraculously "cured," and he acquired a residence with Bridget even though her presence ensured it would not be a safe and stable home for the child.

In addition, the Division's expert found that Robert's own prognosis was poor for eliminating the harm to the child. In crediting this expert's testimony, the judge found Robert

has a high level of anger and resentment that overwhelms his ability to control himself, tolerate stress, and engage in long term thinking and planning. . . . Robert displayed a strong propensity to view things from his own perspective, and . . . had limited insight as to his own problems.

The judge determined that, along with his rigid thinking, Robert possessed "maladaptive personality traits," "an overinflated sense of self," and "a propensity to deny even common shortcomings that most people readily admit." Robert was found to be "less mature and much more primitive" psychologically than most adults.

These findings, as well as the judge's thorough findings on the other prongs as to both defendants were supported by credible evidence and are entitled to our deference. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394, 413 (1998). And the judge's conclusion from the facts he found that the evidence was clear and convincing regarding all four prongs are well-supported and logically flow from the judge's findings. We find insufficient merit in defendants' arguments to warrant further discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons set forth by Judge Tyner in his well-reasoned and thoughtful opinion.

Affirmed.