NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. B.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4220-04T44220-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

B.R.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF A.W. and A.R.,

Minors.

_______________________________________

 

Submitted May 31, 2006 - Decided July 14, 2006

Before Judges Payne and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-165-04.

Yvonne Smith Segars, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, of counsel and on the brief).

Zulima Farber, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Maureen Bull, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for the minor children A.W. and A.R. (Christopher A. Huling, Assistant Deputy Public Defender, Law Guardian, on the brief).

PER CURIAM

After a lengthy guardianship trial that spanned eight days with twelve witnesses, the Family Part in March 2005 terminated the parental rights of appellant B.R., a thirty-three-year-old mother with various personality disorders, with respect to her two daughters, A.W., now age thirteen, and A.R., who is now six. The respective fathers of the minors have had their own parental rights terminated, and are not involved in this appeal.

Since January 2002 A.W. has been living with a foster parent who also happens to be B.R.'s godmother. Her sister, A.R., has been with that same foster parent since August 2003. The foster parent wishes to adopt both children.

The record reflects that B.R. has a history of what the trial judge aptly characterized as "shocking" failures to care for her children, including scalding A.W. as an infant and allowing both girls to have continued unsupervised contact with B.R.'s paramour W.H., a sexual predator. The only other resource identified by B.R., her mother S.M., was ruled out as a suitable caretaker by the Division of Youth and Family Services (DYFS) because of S.M.'s prior involvement with child welfare agencies in Arizona after allowing one of her own children to have continued contact with a sexual offender, and because of S.M.'s false denials of that prior agency involvement when questioned about it by another Family Part judge.

On appeal, B.R. raises the following arguments:

POINT I

B.R.'S FAILURE TO TERMINATE HER RELATIONSHIP WITH W.H. DID NOT SATISFY THE STATUTORY CRITERIA AND THE BURDEN OF PROOF REQUIRED TO TERMINATE PARENTAL RIGHTS UNDER N.J.S.A. 30:4C-15.1.

1. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE COURT'S FINDINGS THAT THE HEALTH AND DEVELOPMENT OF THE CHILDREN WAS AND WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

2. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDINGS THAT B.R. WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING THE CHILDREN.

3. THE COURT'S FINDINGS THAT THE DIVISION HAS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP THE CIRCUMSTANCES WHICH LED TO THE REMOVAL OF A.W. AND A.R., AND THAT THE COURT HAS CONSIDERED ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS[,] [ARE] NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

4. THE COURT'S FINDINGS THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD [ARE] NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

POINT II

B.R. RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE CONSTITUTIONAL STANDARDS SET FORTH IN THE UNITED STATES AND NEW JERSEY CONSTITUTION[S].

[1.] TRIAL COUNSEL FAILED TO OBJECT TO HEARSAY EVIDENCE, FAILED TO OBJECT TO THE TESTIMONY OF [THE LAW GUARDIAN'S INVESTIGATOR] RENEE LASSITER, FAILED TO MAKE PROPER OBJECTIONS TO THE TESTIMONY, AND FAILED TO EXCLUDE IRRELEVANT DOCUMENTS.

Having considered each of these arguments, and bearing in mind our limited standard of review, see Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974); Cesare v. Cesare, 154 N.J. 394, 412-13 (1998), we affirm the judgment of termination, substantially for the reasons expressed in the well-reasoned and comprehensive opinion of Judge Benjamin Cohen placed on the record on March 11, 2005. The lay and expert proofs adduced at trial amply establish that all four statutory factors for termination under N.J.S.A. 30:4C-15.1 are fulfilled. See also N.J. Div. of Youth & Fam. Serv. v. A.W., 103 N.J. 591, 604-11 (1986).

We also note that appellant's claims of ineffective assistance of counsel, founded upon criminal precedents under the Sixth Amendment of the United States Constitution and the New Jersey Constitution, see, e.g., Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987), are legally inapplicable to this civil proceeding, despite the important parental rights involved. We do observe in passing that appellant's criticisms of her four successive trial attorneys largely concern the admission of evidential items that our own review of the record indicates were properly considered by the court, and we discern no appreciable prejudice to appellant from her representation in light of the overwhelming proofs catalogued in Judge Cohen's opinion.

Affirmed.

 

In a companion opinion issued today in A-3315-05T4, we affirmed the Family Part's final order denying S.M. custody of A.R. and A.W., as well as denying her post-termination, pre-adoption visitation with those grandchildren.

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5

A-4220-04T4

RECORD IMPOUNDED

July 14, 2006