NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.G.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1505-05T41505-05T4

A-5746-05T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.V. and S.G.,

Defendants-Appellants.

IN THE MATTER OF THE

GUARDIANSHIP OF J.V.,

a Minor.

_______________________________________________

 

Submitted March 12, 2007 - Decided April 5, 2007

Before Judges Lintner and Seltzer.

On appeal from the Superior Court of

New Jersey, Chancery Division, Family

Part, Hudson County, FG-09-238-05.

Yvonne Smith Segars, Public Defender,

attorney for appellant C.V. (Jean B. Bennett, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender,

attorney for appellant S.G. (Alan I. Smith,

Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney

for respondent (Andrea M. Silkowitz,

Assistant Attorney General, of counsel;

Nicholas Armstrong, Deputy Attorney

General, on the brief).

Yvonne Smith Segars, Public Defender,

Law Guardian for minor J.V. (Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant C.V., the biological father of J.V., and S.G., the biological mother of J.V., appeal from the September 27, 2005, judgment terminating their parental rights to their son. We affirm.

The principles that govern the termination of parental rights were recently summarized by the Supreme Court and we have no need to repeat them here. See N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279-80 (2007). Suffice it to say that parental rights may be terminated when:

(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. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(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.

 
[N.J.S.A. 30:4C-15.1(a).]

After a bench trial, Judge Bernedette N. DeCastro authored a thorough and lengthy opinion in which she found that the Division of Youth and Family Services (DYFS) had proven each of the statutory elements by clear and convincing evidence. Accordingly, she terminated defendants' parental rights. Each parent appealed and the appeals were consolidated. On appeal, defendant C.V. contends that DYFS failed to prove the third prong of the statutory test and defendant S.G. asserts a failure of proof with respect to the third and fourth prongs. S.G. also argues that the judge admitted documentary evidence that was not properly authenticated. None of those arguments merit substantial discussion.

Given the limited nature of the appeal, we do not consider the judge's findings that both defendants harmed their child and were incapable of curing that harm. Those findings are supported by overwhelming evidence in the record. The argument with respect to the proofs surrounding the third prong relate to the failure to place the child in the custody of his maternal aunt and uncle. That issue was addressed by Judge DeCastro in a "best interests hearing," which she conducted in conjunction with the guardianship trial. The evidence adduced at that hearing was incorporated into the guardianship trial held on September 12 and 13, 2005.

Judge DeCastro issued a fourteen-page opinion as a result of the best interests hearing in which she traced the efforts of the maternal aunt to take custody of J.V. She noted that both parents were incarcerated when J.V. was born on September 21, 2003, and was placed into his current foster home eight days later on September 29, 2003. The maternal aunt, E.G., "embarked on a mission to obtain custody of J.V." from the moment of his birth, although it would be almost two years before either parent consented to such a placement. The judge had before her evidence of E.G.'s continued attempts to have the child placed with her by DYFS. She also had testimony from three experts, all of whom agreed that J.V. was significantly bonded to his foster parents.

Dr. Gerard Figurelli testified on behalf of defendants and E.G. He had conducted a bonding evaluation with the maternal relatives and J.V. as well as with J.V. and his foster parents. The judge noted Figurelli's concession that "J.V.'s primary emotional attachment remains with his foster parents. However, he feels that it appears as if the [maternal relatives] have been developing a relationship with [J.V.] since visitation has commenced." Figurelli recognized that J.V. would suffer from a separation from his foster family but opined that any adverse effects "may be mollified by a gradual transition to the [maternal relatives]." He also felt that "[t]he loss from severing the bond of his biological family . . . is likely to manifest in significant issues emerging in his adolescent years."

The judge also heard from Dr. Charles Hassen who testified for DYFS and Dr. Elizabeth Smith who had conducted a bonding evaluation for the Law Guardian. They agreed that J.V. would suffer were he to be moved from his current placement. They believed the effects would be a significant "emotional loss that is likely to manifest in separation anxiety and regressive behaviors." They disagreed that the effects could "mollified," predicting that they would be "serious and enduring."

The judge accepted Hassen's testimony respecting the harm J.V. would suffer from removal and rejected Figurelli's prediction of harm occasioned by a dissolution of the connection to his biological family as unsupported by the evidence. She found "by clear and convincing evidence that it is not in J.V.'s best interest to be placed with the maternal relatives." Judge DeCastro appropriately recognized that there is no presumption in favor of placement with relatives. See N.J.S.A. 9:6-8.54a. Instead, she found that "J.V. has been in a secure, safe placement. By all expert[s'] accounts, he is bonded to his foster parents."

She acknowledged that "placing J.V. with the [maternal relatives] may serve to preserve the family unit in a vague sense. However, based upon the fact that C.V. will not be released from prison until J.V. is an adult, and that [S.G.] has shown little interest in her son, there simply is no family unit to preserve."

Accordingly, she denied the motion to place the juvenile with the maternal relatives. The judge's factual findings are well-supported by the evidential record and her conclusions are appropriate. We have no basis to disturb the result she reached. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

That evidence fully justifies the judge's conclusion in the guardianship trial that placement with the maternal relatives was not a viable alternative to termination. Moreover, as the judge aptly noted, "placement with the [maternal relatives] would not be an alternative to termination [of defendants' rights] because they wish to adopt him."

The argument that DYFS failed to demonstrate that termination of parental rights will not do more harm than good is, given the expert testimony presented and the child's acknowledged need for permanency, see e.g. In re Guardianship of K.H.O., 161 N.J. 337, 358-359 (1999), without sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(1)(A), (E). The evidence amply supports the finding that termination will allow a permanent placement with loving adoptive parents while a failure to terminate and a consequent removal from the foster home will have devastating effects. The judge's factual findings were supported by substantial credible evidence in the record and her legal conclusions were appropriate. Cesare, supra, 154 N.J. at 411-12; Rova Farms, supra, 65 N.J. at 484.

S.G.'s argument with respect to the admission of documentary evidence that "was not properly authenticated by a testifying witness" is equally without merit. N.J.R.E. 901 requires authentication by "evidence sufficient to support a finding that the matter is what its proponent claims." Defendant does not assert that the admitted material was not what it was claimed to be and had, without objection, acceded to its admission in the best interests hearing. There is no reason to believe a "testifying witness" was necessary to authenticate the documents.

Accordingly we affirm substantially for the reasons expressed by Judge DeCastro in her comprehensive, well-reasoned September 26, 2005, written opinion.

Affirmed.

 

The hearing was prompted by defendants' motion to have J.V. placed with E.G.

We assume the documents were "contact sheets" memorializing contacts between DYFS and concerned individuals. The contacts do not appear disputed and the trial was, in essence, a contest between the expert opinions of the effect of termination on the child. Thus, even if admission were in error, we cannot conceive that the error could have altered the outcome. R. 2:10-1.

(continued)

(continued)

8

A-1505-05T4

RECORD IMPOUNDED

 

April 5, 2007