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Division of Youth and Family Services v. M.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 8, 2007

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
M.W., DEFENDANT-APPELLANT,
IN THE MATTER OF THE GUARDIANSHIP OF M.B., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-101-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 23, 2007

Before Judges R. B. Coleman and Gilroy.

M.W., the biological father of baby girl, M.B., born May 28, 2005, appeals from the order of the Chancery Division, Family Part, entered on June 9, 2006, terminating his parental rights to M.B. The order also terminated the parental rights of L.B., M.B.'s biological mother, who had defaulted in the action.

Termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Such actions require proof by clear and convincing evidence. Div. of Youth & Family Servs. v. L.C., 346 N.J. Super. 435, 439 (App. Div. 2002). Termination actions brought under N.J.S.A. 30:4C-15.1a, are decided under a four-part "best interests of the child" standard first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-611 (1986) and now codified in N.J.S.A. 30:4C-15.1a.

On appeal, M.W. argues:

POINT I.

A. THE DIVISION'S EVIDENCE DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE A FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILD HAS BEEN AND WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

B. THE DIVISION DID NOT PRODUCE EVIDENCE TO SUPPORT THE FINDINGS THAT M.W. WAS UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILD AND THE DELAY OF PERMANENT PLACEMENT WILL ADD TO THE HARM.

C. THE COURT'S FINDINGS THAT THE DIVISION HAS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP THE CIRCUMSTANCES WHICH LED TO THE REMOVAL OF THE CHILD AND THE COURT HAS CONSIDERED ALTERNATIVES TO TERMINATION OF [] PARENTAL RIGHTS IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

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

POINT II.

DR. WALDRON DID NOT HAVE THE REQUISITE QUALIFICATIONS TO BE QUALIFIED AS AN EXPERT WITNESS AND HER TESTIMONY SHOULD BE EXCLUDED.

Contrary to the appellant, the law guardian supports the decision below.

On appeal, factual findings and conclusions of the trial judge are generally given deference, especially when the evidence is "largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). An appellate court should not disturb the "'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)) (alteration in original).

We have considered the arguments advanced by appellant in light of the record, and for reasons stated by Judge Grant in his thoughtful oral decision of June 8, 2006, we conclude that the evidence clearly and convincingly establishes that the child's best interests, assessed under the statutory standards, N.J.S.A. 30:4C-15.1a, warrants termination of the appellant's parental rights. R. 2:11-3(e)(1)(A). We add the following comments.

Appellant challenges the trial court's determination that the Division met the first prong of the "best interests of the child's test." Appellant argues that the record is devoid of any allegations of abuse or neglect against him, and therefore, there is no evidence that the health and development of M.B. has been, and will be, endangered by a parental relationship with him. Appellant contends that the Division only became involved in the case because of the biological mother's actions, including drug use and neglect, and that there was insufficient evidence to show M.B.'s safety, health, or development were endangered by his actions. We disagree.

The absence of physical abuse or neglect is not conclusive on the issue of custody because a trial court must consider the potential for serious, psychological damage to the child. In re Guardianship of R.G. and F., 155 N.J. Super. 186, 194 (App. Div. 1977). Even if the risk of harm to the child is due to factors over which the parent has no control, such as mental health functioning, such incapacity resulting in an inability to parent is a cognizable ground for termination of parental rights. N.J. Div. of Youth & Fam. Servs. v. A.G., 344 N.J. Super. 418, 438 (2001), certif. denied, 171 N.J. 44 (2002).

Appellant is correct that his use of cocaine and alcohol did not directly cause M.B. to test positive for cocaine and opiates at birth or to remain in intensive care following her birth because of withdrawal symptoms. However, M.W.'s substance abuse problems did prevent him from assuming custody and safely parenting M.B. M.W. has a history of drug abuse, primarily cocaine and alcohol dating back to 1996 or 1997. He admitted to currently using cocaine at least once a week. Because of M.W.'s substance abuse problems, the Division referred him for drug treatment at the Mt. Carmel Guild, but he never attended. M.B. has a history of psychiatric ailments for which he was prescribed medication and attended group therapy at the University of Medicine & Dentistry of New Jersey. However, he stopped attending and ceased taking his medication after his social worker left.

On September 20, 2005, and September 27, 2005, M.W. was evaluated by Dr. Waldron, a psychologist. Dr. Waldron's evaluation included the Child Abuse Potential (CAP) inventory, and M.W.'s score was 331, more than 100 points higher than the cutoff score of 215, indicating that M.W. has "characteristics similar to active, known physical child abusers." Dr. Waldron opined that M.W. does not have the "capacity to safely parent a child." On November 30, 2005, M.W. underwent a psychiatric evaluation with Dr. Ronald Crampton. Dr. Crampton diagnosed M.W. with psychotic disorder NOS;*fn1 R/O*fn2 schizophrenia, paranoid type; R/O delusional disorder; R/O depressive disorder NOS; polysubstance abuse; and paranoid personality disorder. Based on the findings of his examination, Dr. Crampton opined that "it cannot be recommended that [M.W.] be granted custody of the minor child in question."

We are satisfied that there is substantial, credible evidence in the record supporting Judge Grant's determination that M.W. caused harm to M.B. by not taking affirmative steps after her birth to put himself in a position to assume the child's custody. He has failed to make progress in correcting his long-standing substance abuse and untreated mental health issues. We concur with Judge Grant's statement that "[n]o one can reasonably suggest that this child would be safe in the care of . . . [M.W.]."

Appellant argues that Dr. Waldron did not have the requisite qualifications to be qualified as an expert witness, and her testimony should be excluded. Appellant contends that Dr. Waldron had no prior experience in the area of parental fitness, having only specialized in sex-offender-specific therapy; and her only training in parental fitness evaluations was a three-day seminar she had participated in approximately four months before her evaluation of M.W. Appellant asserts that, without any prior experience or education in the area of parental fitness, the court should not have allowed Dr. Waldron to testify as an expert.

A ruling on whether an expert is competent to testify is addressed to the discretion of the trial judge. Carey v. Lovett, 132 N.J. 44, 64 (1993); Adamson v. Chiovaro, 308 N.J. Super. 70, 77 (App. Div. 1998); Pressler, Current N.J. Court Rules, comment on R. 2:10-1 (2007). This court should not interfere with the exercise of that discretion absent a clear abuse of discretion. Carey v. Lovett, supra, 132 N.J. at 64.

Here, the trial judge found Dr. Waldron "imminently-qualified to testify" as an expert in this case based upon her curriculum vitae, as well as her past experience as a psychologist, along with the training she had received from the Division concerning parental fitness and termination of parental rights. Training and education may be a basis for qualifying one as an expert. N.J.R.E. 702. It was within the discretion of the trial judge whether to accept Dr. Waldron as an expert in the field of termination of parental rights. There is no evidence that Judge Grant abused his discretion in permitting Dr. Waldron to testify.

Affirmed.


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