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


August 29, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, FG-01-27-06.

Per curiam.



Submitted August 21, 2007

Before Judges Lisa and Holston, Jr.

D.W. appeals from a judgment of guardianship terminating his parental rights to his daughter, T.B., who was born on August 2, 2004.*fn1 D.W. argues on appeal that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of establishing all four prongs of the best interests of the child test. D.W. also argues that termination of his parental rights was improperly based solely on issues regarding a sibling and that the termination, under the circumstances of this case, without a fair and adequate consideration of less severe relief, was punitive and unreasonable.

We have reviewed the record and conclude that the trial judge's findings are well supported by the evidence, R. 2:11-3(e)(1)(A), and that D.W.'s appeal arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Baker in his thorough and well reasoned written decision of August 31, 2006. We add this brief factual recitation, summary of the judge's findings, and controlling legal principles.

Prior to T.B.'s birth, D.W. and E.B. had a son, D.W., Jr. On January 1, 2003, when D.W., Jr. was five months old, D.W. shook him and slapped him violently, causing catastrophic injuries which have left the child legally blind, unable to walk or crawl, unable to feed himself or control his bowel movements, and in a semi-vegetative state requiring total care for the remainder of his life. As a result of that incident, D.W. was criminally charged and, pursuant to a plea agreement, pled guilty to second-degree endangering the welfare of a child and was sentenced to five-years imprisonment. Investigation revealed that D.W. had subjected D.W., Jr. to a pattern of physical abuse and, while in the care of D.W. and E.B., D.W., Jr. was malnourished and otherwise neglected.

It was not until October 2004, several months after T.B.'s birth, that D.W. was arrested for the incident involving D.W., Jr. E.B. was also arrested. D.W. was incarcerated at that time. He later pled guilty and was pending sentencing at the time of the trial of this termination case, which took place on May 31, June 1 and June 8, 2006. D.W. was sentenced on June 30, 2006 to five years imprisonment in accordance with the recommendation in the plea agreement. At the time of trial, the date on which he would be released was not clearly established. We have been advised that he was ultimately paroled on January 18, 2007.

When D.W. and E.B. were arrested, T.B. stayed temporarily with a relative. She was hospitalized in December 2004 as a result of a reflux condition. She was classified as medically fragile and placed in a special needs foster home. She was placed with her current foster parents in April 2006. She is doing very well in that environment, described by her caseworker as a loving environment. The foster family is providing for T.B.'s medical needs. Her foster parents wish to adopt her.

D.W. has not seen or had any contact with T.B. since she was three months old. While incarcerated, he made no efforts to communicate with her or establish any contact. DYFS was unable to provide services to D.W. while he was incarcerated. DYFS did, however, arrange for a psychological evaluation, which was conducted by Dr. Roger Barr on March 9, 2006. Dr. Barr diagnosed D.W. with paranoid suspicion, delusional thinking, hyper-vigilance and anxiety, and concluded that each of these conditions posed a risk to T.B. Dr. Barr opined that D.W.'s mental illness carried with it a high probability that he would lose behavioral control and that he was not capable of parenting a child. At best, if D.W. were cooperative and successfully underwent an intensive course of therapy, Dr. Barr estimated that it would take years, perhaps three to five years, before there would be any prospect of D.W. being capable of parenting a child. Further, before his incarceration, D.W. was homeless and unemployed. His circumstances presented no prospects of any stable living arrangements or ability to provide a safe and secure environment for himself or a child.

The Division made extensive efforts to place T.B. with relatives of either of her parents. None of the relatives contacted were suitable. The Division also attempted to locate other relatives, for whom incomplete information was provided.

Dr. Barr did not conduct a bonding evaluation between T.B. and D.W. or between T.B. and her foster parents. In D.W.'s case, Dr. Barr explained that such an evaluation would be completely meaningless because there was absolutely no relationship between father and daughter and D.W. would be a complete stranger to his daughter if they were placed in the same room together. With respect to the foster parents, a bonding evaluation would have been premature because T.B. had been with her foster family for less than two months when the trial began. In Dr. Barr's opinion there would be no harm whatsoever to T.B. by terminating her parental relationship with D.W., and T.B.'s best interests would be served by allowing adoption by loving foster parents which would provide permanency and stability for her. Also, arrangements were made by which T.B. was having regular contact with her biological siblings, and it was expected that those contacts would continue in the future.

At trial, Dr. Barr and the DYFS caseworker were the only witnesses. D.W. was present at trial and represented, but he did not testify or call any witnesses. Numerous records and documents were placed in evidence and formed part of the record upon which the decision was made. At the conclusion of trial, Judge Baker reserved decision, after which he issued his written decision. The judge reviewed in detail and critically analyzed the evidence. He made credibility findings, finding both Dr. Barr and the caseworker very credible. He found that the Division established by clear and convincing evidence all four prongs of the best interests test.

The judge found that T.B.'s health, safety and development were and would continue to be endangered by a parental relationship with D.W. This was based upon several factors, including D.W.'s conduct towards D.W., Jr., and D.W.'s lack of contact with T.B. The judge found that D.W. was unable to eliminate the harm to T.B. because of his need for long-term intensive therapy. There is no assurance that D.W. would cooperate in such a program or that it would be successful, and, at best, it would take a number of years, which would further delay permanency and cause further harm to T.B. The judge further found that the Division made more than reasonable efforts to place T.B. with relatives and thus appropriately considered alternatives to termination. Finally, the judge concluded that termination of D.W.'s parental rights would not do more harm than good. In this regard, the judge noted that D.W. had no contact with T.B. since she was three months old, as a result of which separating T.B. from D.W. would not create lasting and enduring harm to her. Further, the judge noted that the current foster parents wished to adopt and were appropriately caring for T.B. and providing her with a loving and wholesome environment. All of the judge's findings were by clear and convincing evidence.

"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Moreover, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986) (quoting Santosky v. Kramer, 455 U.S. 745, 787, 102 S.Ct. 1388, 1412, 71 L.Ed. 2d 599, 628 (1982)).

Accordingly, courts have consistently imposed strict standards regarding the termination of parental rights. K.H.O., supra, 161 N.J. at 347. However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. This is because the State, as parens patriae, has a responsibility to protect the welfare of children. K.H.O., supra, 161 N.J. at 347.

The standard for determining the termination of parental rights is known as the best interests of the child test, originally set forth in A.W. and now codified in N.J.S.A. 30:4C-15.1a, which authorizes termination if the Division can show:

(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-15.1a.]

DYFS has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R. G. and F., 155 N.J. Super. 186, 193 (App. Div. 1977). Moreover, the four criteria overlap with one another to provide a comprehensive standard that identifies a child's best interest. K.H.O., supra, 161 N.J. at 348.

New Jersey has a strong public policy favoring permanency. Id. at 357. In all guardianship and adoption cases, the child's need for permanency and stability must be accorded primary status. Id. at 357-58.

D.W. challenges the judge's findings on all four prongs. He argues that the evidence was insufficient to support the judge's findings. He further argues that the termination was impermissibly based solely on his improper conduct with another child, T.B.'s sibling. Finally, he argues that the termination proceeding was improperly "rushed to its conclusion" before he was released from prison and before further efforts could have been made to consider alternatives to termination. We find these arguments unpersuasive.

The Division presented overwhelming evidence supporting all four prongs of the best interests test. While D.W.'s conduct towards D.W., Jr. was a significant factor in the determination, it was by no means the sole basis for termination. D.W.'s conduct towards his son, exhibited by a pattern of abuse and neglect, culminating in a violent physical assault resulting in catastrophic injuries, is a legitimate predictor of future behavior. Coupled with Dr. Barr's diagnosis and poor prognosis for improvement, this evidence was highly probative and properly considered along with the other evidence in the case. Finally, more than reasonable efforts were made to consider alternatives to termination, all of which were unsuccessful, and there was no impropriety in concluding this proceeding in a timely fashion.

The findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, because of the particularized expertise of Family Court judges in family matters, we accord enhanced deference to Family Court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998). From our review of the record, we are satisfied that the evidence supports the judge's findings that the Division established by clear and convincing evidence all four prongs of the best interests test. We will not disturb those findings on appeal. The judge properly applied the correct principles of law to his factual findings, and we find no error in the result reached.


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