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OF L.E.Z. and J.E.Z.,



November 13, 2014


Submitted November 5, 2014 Decided

Before Judges Koblitz and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-44-13.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Laura T. Mastriano, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (James J. Gross, Designated Counsel, on the brief).


Defendant E.Z. appeals from the December 9, 2013 judgment of guardianship of the Family Part terminating her parental rights to her two children, born in 2008.1 Defendant contends the Division of Child Protection and Permanency (Division) failed to prove each prong of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. The Law Guardian supports the termination on appeal as it did before the trial court.

Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition overwhelmingly supports the decision to terminate defendant's parental rights. Accordingly, we affirm substantially for the reasons set forth in Judge Mary White's thorough oral opinion rendered on December 9, 2013. We add the following comments.

The Division first became involved with defendant and her children on March 18, 2010, after the police arrested defendant for driving while intoxicated while her children were in the car with her. Defendant's blood alcohol concentration (BAC) was .36 at the time of her arrest. The children were "dressed in dirty clothes, wore no shoes and had fully soiled diapers. Their feet were blackened with dirt and their hair was matted down with dirt." The Division removed the children from defendant's custody and placed them in a foster home. The children remained with the foster family until June 28, 2012.

Between March 2010 and June 2012, the Division provided a variety of services to defendant to help her address her serious problem with alcohol. These services included substance abuse treatment, a parenting skills program, psychological evaluations, visitation, family therapy, and counseling and early intervention programs for the children, who presented as developmentally delayed. Because defendant participated, although not always consistently, in these services, the Division returned the children to her care on June 28, 2012.

On July 19, 2012, however, the Division received a referral from a service provider that defendant was intoxicated while at home with the children. The Division investigated and learned that defendant had been driving a scooter while intoxicated a few days before, and had crashed the vehicle. The hospital gave defendant Oxycodone and she took more than the prescribed amount of the drug. Defendant cursed at the Division caseworker, and then struck him with a cell phone. The police arrested defendant and she was later convicted of assault. The Division again removed the children, and placed them with a new foster family. However, the Division later transferred the children to their first foster family, where they have lived ever since. The foster family plans to adopt the children.

The Division continued to attempt to work with defendant to help her with her alcoholism, but defendant was unable to complete the services provided to her. While defendant had a positive relationship with the children, some of her visits had to be cut short because defendant appeared to be intoxicated. During a visit in January 2013, the police arrested defendant because she was intoxicated and refused to leave the vehicle the Division used to bring the children to the visit.

In May 2013, the police arrested defendant for taking the keys from a waste removal truck while she was intoxicated. The police arrested her again in July 2013 for assaulting an emergency room staff member. In August 2013, the police arrested defendant after she was found intoxicated and unconscious in a park. She also pushed and bit the officer who was attempting to take her into custody.2

Dr. James Loving, who was qualified as an expert in psychology at trial, conducted an evaluation of defendant. Dr. Loving opined that defendant "posed a very high risk in terms of substance abuse relapse, and posed a number of parenting-relating risks connected to her substance use." Dr. Loving also noted that "[t]here have been incidents when [defendant has] been under the influence and her judgment has been egregious and she's placed [her children] at very high risk of harm." He also found there was a continued "risk for [defendant] being under the influence again and placing the [children] at similar risk of harm." Dr. Loving testified that defendant would have to remain sober for at least a year "before any thought could be had of returning the children" to her care. This delay, however, "would continually increase their risk of harm." Dr. Loving concluded that "[t]he sooner [the children] could be in a situation where they experience a sense of permanency, the better their chance is for a good [emotional] outcome here."

Dr. Loving also performed bonding evaluations. He found the children had a positive, but insecure, bond with defendant because defendant was never able to care for the children. On the other hand, the children were strongly bonded with their foster parents, with whom they had lived for over half their lives. Therefore, Dr. Loving supported "the Division's plan for adoption . . . for both girls by their current care givers, and it was [his] opinion that [this] outcome would be the safest, healthiest outcome for the [children, g]iving them the best long-term chance of emotional health."

In her oral opinion, Judge White fully detailed defendant's serious and ongoing alcoholism problem, which prevented her from safely caring for the children. The judge also recounted the numerous services the Division provided to defendant and her inability to take full advantage of them or overcome her substance abuse issues. The judge considered the possibility of Kinship Legal Guardianship, but explained it was not feasible in this case because the foster parents were ready, willing, and able to adopt the children. Finally, the judge found that, while the children had a positive bond with defendant, they would not suffer permanent harm if that bond were terminated because the foster parents would be able to mitigate any harm by providing the children "with a permanent and loving home" and the stability they need in their lives.

The scope of our review of a trial court's decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). "Because of the family courts' special jurisdiction and expertise in family matters," we accord deference to the trial court's fact-finding and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (l998). We are further obliged to defer to the trial judge's credibility determinations and the judge's "'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411-12; Pascale v. Pascale, 113 N.J. 20, 33 (l988)), aff'd in part and modified in part, 179 N.J. 264 (2004).

When the trial court's findings of fact are supported by adequate, substantial and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974). Reversal is required only in those circumstances in which the trial court's findings are "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted).

Judge White's opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1a, accords with In re Guardianship of K.H.O., 161 N.J. 337 (1999), In re Guardianship of D.M.H., 161 N.J. 365 (1999), and N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), and is supported by substantial and credible evidence in the record. F.M., supra, 211 N.J. at 448-49. After appraising the record in light of the findings of fact contained in the judge's oral opinion, we find nothing that requires our intervention. Judge White carefully reviewed the relevant evidence and fully explained her reasons in a logical and forthright fashion.


1 Defendant reported to the Division that she conceived the children through artificial insemination and their father is unknown.

2 Defendant was convicted of charges arising from this incident, and others, and was sentenced to eighteen months in prison. However, defendant participated at the trial and the judge did not rely upon her incarceration in deciding to terminate defendant's parental rights. See N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 560 (2014).