NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. Y.C.

Annotate this Case

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1898-17T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

Y.C.,

Defendant-Appellant,

and

J.P. and J.T.,

Defendants.
_______________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF J.C., B.C., and Br.C.,

Minors.
_______________________________________

Submitted October 16, 2018 – Decided October 26, 2018

Before Judges Yannotti and Natali.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FG-15-0048-17.

Joseph E. Krakora, Public Defender, attorney for
appellant Y.C. (Thomas G. Hand, Designated Counsel,
on the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Joshua P. Bohn, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Melissa R. Vance, Assistant
Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Y.C. (Yvonne) appeals from a December 12, 2017 Family Part order

terminating her parental rights to her twin daughters B.C. (Betty) and BR.C.

(Barbara) and her son J.C. (Jon). 1 The children's respective fathers, J.T. (James)

and J.P. (Jordan), have not appealed the termination of their parental rights.

Yvonne argues that the Division of Child Protection and Permanency (Division)

did not prove all four prongs of the statutory "best interests of the child" test

under N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The Law

Guardian supported termination in the trial court and joins the Division in urging

1
We use fictitious names to protect the parties' privacy and for ease of
reference.
A-1898-17T3
2
us to affirm. Having considered defendant's arguments in light of the record and

applicable legal principles, we affirm.

From 2006 to 2015, the Division received seven referrals related to the

family, four involving Yvonne. In 2011, the Division substantiated Yvonne for

inadequate supervision of Betty, Barbara and Jon after which the children's

maternal grandmother A.A. (Ava) was granted legal custody. When Ava died

in August 2015, the children were returned to Yvonne's care.

In January 2016, officers from the Ocean County Sheriff's Office and

Toms River Police Department attempted to serve probation warrants on

Yvonne at the home where she and the children were residing. Yvonne fled

through the back door and the officers entered the home because they heard

"blood curdling screams" coming from the children whom Yvonne left behind,

unattended and unsupervised.

The police requested the Division's assistance and when caseworkers

arrived they contacted Yvonne's relatives to take custody of the children.

Because none of Yvonne's relatives were willing or capable of caring for the

children and as Yvonne had fled the home and would soon be incarcerated on

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child endangerment charges, the Division executed a Dodd 2 removal of Betty,

Barbara and Jon.

Throughout 2016, the Division arranged supervised visitation between

Yvonne and her children. From January to February 2016, Yvonne was

inconsistent with her attendance at the visitations. She eventually stopped

contacting the Division.

In February 2016, Yvonne was involuntarily committed to a mental

institution after communicating suicidal ideations and an interest in killing her

biological father. Yvonne also admitted that she again was using heroin and

cocaine. Yvonne further stated that she had no desire to live and that her

children did not motivate her enough to continue living. She was released from

the mental institution on February 22, 2016.

Yvonne was incarcerated again in March 2016 and remained in jail

through June 2016. During her incarceration, the Division provided visitation

between Yvonne and the children and also arranged for a psychological

evaluation with Dr. Robert Puglia. Dr. Puglia recommended Yvonne participate

in therapeutic visitation, parenting classes, an updated substance abuse

2
A "Dodd removal" refers to the emergency removal of a child from a home
without a court order as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act,
N.J.S.A. 9:6-8.21 to -8.82.
A-1898-17T3
4
evaluation and a psychiatric evaluation. Yvonne was provided individual and

substance abuse counseling while in jail.

The Division also referred Yvonne to Dr. Alexander Iofin for a psychiatric

evaluation. Dr. Iofin recommended mental health treatment, therapy,

psychotropic medication, random urine screens, and supervised visitation.

At trial, Division caseworker Crystal Farkas (Farkas) testified that the

Division recommended therapeutic visitation, provided supervised visitation,

and referred Yvonne to individual counseling, parenting skills training, and an

additional psychological evaluation. Aside from minimal compliance with the

therapeutic visits, Yvonne failed to comply with any of the recommended

services. Yvonne did, however, independently gain admission to a mental health

and substance abuse program, but she was discharged for noncompliance and

because she tested positive for illicit drugs.

Between December 2016 and May 2017, Yvonne had minimal contact

with the Division. Farkas reached out to Yvonne numerous times via cell phone

and by visiting her residence, but Yvonne failed to engage with the Division,

which prevented her from completing recommended services. The final contact

Farkas was able to make with Yvonne was a phone call in May 2017. She called

Yvonne and informed her that if she "wanted to work towards getting her

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children back" she would have to comply with a court order compelling her to

attend services. Yvonne replied by stating, "I'm not doing services."

As to the children, Betty and Barbara have resided together in the same

resource home since November 2016 while Jon was placed in his current

resource home in July 2016. Though the twins' current resource family is

committed to caring for them until the Division finds an adoptive family, they

do not want to adopt or become kinship legal guardians.

During the course of the litigation, the Division sought temporary and

long-term placement of the children with relatives and family members. For

example, the Division contacted Betty and Barbara's father, Jon's father and

paternal uncles to care for the children, but they were either ruled out as

caretakers or failed to respond to the Division.

The Division also made efforts to assess Yvonne's aunt M.F. (Martha),

who lived in North Carolina and who expressed interest in serving as a

placement for Betty and Barbara. On July 6, 2016, the Division requested an

Interstate Compact on the Placement of Children (ICPC) home study for Martha.

Martha's ICPC home study was approved by the Division in January 2017, but

the North Carolina ICPC office informed the Division that the licensing process

would take at least another one to three months. Despite the delay, in April

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2017, the Division began arranging visits between Martha, her husband D.F.

(Dylan), and Betty and Barbara.

In August 2017, the Division received an update from the North Carolina

ICPC office informing them that the licensing process would take several more

months. In October 2017, the Division received a notice from the North

Carolina ICPC office that Martha and Dylan's license had been processed and

the approval package was expected to arrive within one to two weeks.

However, by that time the placement was in jeopardy because neither

Betty nor Barbara wanted to move to North Carolina. Nonetheless, in early

November 2017, the girls agreed to visit Martha and Dylan and the Division sent

caseworkers to meet the family during the visit in preparation for a possible

permanency plan. When the caseworkers arrived, Martha and Dylan informed

them that they no longer wanted to be considered as a placement for the girls.

Accordingly, the caseworkers brought Betty and Barbara back to New Jersey.

In the summer of 2017, Farkas referred the children and their resource

families to Dr. David Brandwein for bonding evaluations. As to the bond

between Jon and his resource family, Dr. Brandwein testified at trial that Jon's

resource parents were "very empathic about what [Jon] was going through," and

they "removed their wants and their needs from the situation," which the doctor

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described as, "frankly . . . just good parenting." Dr. Brandwein further testified

that Jon had finally "found some stability and permanency -- consistency and

stability with [his current resource family], and that was something that . . . had

eluded [Jon] from time to time in previous years because of how he moved

around." Finally, Dr. Brandwein testified that he discussed parenting options

aside from adoption, including kinship legal guardianship, with Jon's resource

family, but they were only interested in adoption.

Dr. Brandwein conducted separate bonding evaluations and meetings with

Betty and Barbara. Dr. Brandwein testified that Barbara "quite clearly" stated

that she "did not wish to return to her mother's care and did not wish to go down

south to live with the maternal relatives. Those are two things she did not want."

Dr. Brandwein further testified that Betty described her life with Yvonne as "not

that bad," but when asked about her preference for permanency, Betty said she

was "really, really happy" with her current resource family and said, "[i]f I have

to move, I want to be close to where I am now, not in North Carolina."

In December 2017, the court conducted a two-day trial on the Division's

guardianship complaint. At trial, the Division relied on documentary evidence

and the testimony of Farkas, her supervisor Deana Stickle (Stickle), and Dr.

Brandwein who was qualified as an expert in forensic and clinical psychology.

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None of the parents testified nor offered any evidence. Yvonne was absent from

the first day of trial. On the second day, Yvonne appeared and informed the

court that she was incarcerated the previous day, then she waived her appearance

and left the proceedings. The Law Guardian presented no witnesses.

In a detailed oral decision, Judge Joseph L. Foster found the Division

proved by clear and convincing evidence all four prongs of N.J.S.A. 30:4C-

15.1(a). The judge entered a judgment terminating Yvonne's, James's and

Jordan's parental rights to Betty, Barbara and Jon and awarded the Division

guardianship of the children. Yvonne's appeal followed.

II.

On appeal, Yvonne argues that the judgment should be reversed because

the Division did not establish the statutory criteria for termination of her pare ntal

rights with clear and convincing evidence. We disagree.

Initially, we note that the scope of our review in an appeal from an order

terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v.

G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J.
440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact

if supported by adequate, substantial, and credible evidence in the record." Ibid.

(citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).

A-1898-17T3
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Moreover, due to its expertise in family matters, the Family Part's factual

findings "are entitled to considerable deference." D.W. v. R.W., 212 N.J. 232,

245 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

III.

Parents have a constitutionally protected right to the care, custody and

control of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re

Guardianship of K.H.O., 161 N.J. 337, 346 (1999). The right to have a 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 codified the 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

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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 [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.