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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

S.S.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF S.S.G. and J.A.S.,

Minors.

October 8, 2013

Submitted October 1, 2013 Decided

Before Judges Reisner and Carroll.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-145-12.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors S.S.G. and J.A.S. (Damen J. Thiel, Designated Counsel, on the brief).

PER CURIAM

Defendant S.S. appeals from a January 31, 2013 order terminating his parental rights to his two teenage children, S.S.G., born in January 1996, and J.A.S., born in February 1997. On appeal, defendant contends that plaintiff New Jersey Division of Child Protection and Permanency (Division) failed to prove the fourth prong of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. We find no merit in defendant's argument and 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 . . .,' '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). "The 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 alsoK.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. A.W., 103 N.J. 591, 599 (1986). At times, the parent's interest must yield to the State's obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To effectuate these concerns, the Legislature created a test for determining whether a parent's rights must be terminated in the 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.

After conducting a three-day trial, Judge David B. Katz rendered a thorough oral and written opinion in which he outlined his findings regarding all four prongs of the statutory test and expressed his conclusion that defendant's parental rights to the two children should be terminated.2

The trial evidence is detailed at length in Judge Katz's opinion. We have reviewed the record, conclude that his factual findings are supported by ample credible evidence, and deem defendant's argument to the contrary meritless. R. 2:11-3(e)(1)(A); -3(e)(1)(E); see also, N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (holding a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial credible evidence in the record as a whole).

In summary, defendant is presently serving a thirty-year term of imprisonment, subject to an eighty-five percent parole ineligibility period under the No Early Release Act (NERA),3 following his conviction for sexually abusing J.A.S. He likely faces deportation to Mexico upon completion of his sentence. Defendant did not testify or call any witnesses at trial. The Division called a psychologist who evaluated defendant, along with the caseworker and an adoption supervisor. Additionally the Law Guardian, who supports termination, called another psychologist who evaluated defendant and the children. The unrefuted evidence at trial established that the children wanted nothing to do with their father, that defendant should have no role in their lives, that reunification with the children was not a possibility due to defendant's lengthy incarceration, and that the children should be made available for adoption.

On appeal defendant only challenges the trial court's findings with respect to the fourth prong of the best interests test. Specifically, he argues that the record in this matter does not reflect any prospect of a permanent plan for either child, and that their adoption is unlikely since they are approaching the age of majority.

The fourth statutory prong requires the court to determine whether termination of parental rights will not do more harm than good to the child. N.J.S.A.30:4C-15.1(a)(4). This prong "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & FamilyServs. v. G.L., 191 N.J.596, 609 (2007). The question is "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108.

In finding that the Division had satisfied the fourth prong, the trial court first cited defendant's lengthy period of incarceration as justifying a termination of his parental rights. Judge Katz then went on to consider In re L.A.S., 134 N.J. 127 (1997), which instructs courts to "determine whether the circumstances surrounding [the parent's incarceration] justify the termination of parental rights based either on abandonment or parental unfitness or both." Id. at 143. In L.A.S., the Court noted that "contact with an imprisoned parent may generate anxiety and serious emotional upheaval or disturbance." Id. at 140 (citation omitted). Here, both expert psychologists testified that the children must be free from the possibility of any further harmful relationship with defendant.

As further noted by the Court in L.A.S., this "concern for the psychological and emotional well-being of [the] children . . . also implicates the nature of the underlying crime giving rise to incarceration as a factor bearing on parental capacity to provide proper care and to avoid harm to the child." Id. at 141. Here, importantly, defendant was convicted of sexually abusing his own young daughter. "Clearly crimes of abuse against one's own children that result in substantial injury ordinarily warrant termination of parental rights. . . . and are the most extreme and obvious examples of parental unfitness." Ibid. (citation omitted).

Concededly, since their removal from defendant and placement in foster care the children have fared poorly. However, again relying on the testimony of the expert psychologists, as well as the adoption supervisor, Judge Katz properly concluded that terminating defendant's parental rights will enable the children to begin the rehabilitative process, itself a great benefit, and enhance the likelihood of their adoption.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 The judge also terminated the parental rights of the children's mother, M.E.G., by default judgment. M.E.G. has not seen the children in over a decade, did not appear in the action, and is not part of this appeal.

3 N.J.S.A. 2C:43-7.2.