On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, FG-06-0014-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2008
Before Judges R. B. Coleman and Sabatino.
Defendant S.W., a/k/a S.S., appeals from a July 30, 2007 order terminating her parental rights as to N.W. Coinciding with that order, the trial court issued a written opinion, in which Judge Julio Mendez outlined his reasons for terminating S.W.'s parental rights and the reason why a kinship legal guardianship could not be employed in this situation. We find Judge Mendez's opinion to be well-reasoned and well-articulated and affirm substantially for the reasons expressed in that opinion, but with the following comments.
Defendant appeals on two grounds:
POINT I: THE TRIAL COURT ERRED IN RULING THAT DEFENDANT'S PARENTAL RIGHTS SHOULD BE TERMINATED AS THE STATE FAILED TO PROVE, BY THE REQUIRED CLEAR AND CONVINCING EVIDENCE, THAT TERMINATION OF THE PARENTAL RIGHTS WAS APPROPRIATE.
POINT II: THE TRIAL COURT ERRED IN NOT RULING THAT KINSHIP LEGAL GUARDIANSHIP WAS APPROPRIATE.
In general, the standard of appellate review of a trial court's findings and conclusions is one of deference to the court's evaluations of credibility and its "feel of the case" given the court's opportunity to observe the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. Moreover, the court's findings will not be overturned unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice . . . ." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Deference is particularly appropriate when the trial court's findings turn in large part on the credibility of witnesses. Cesare, supra, 154 N.J. at 412.
In this case, the trial court was well within its discretion to discredit the testimony of Dr. Kenneth Goldberg in favor of Dr. Linda R. Jeffrey's testimony regarding bonding evaluations. See State v. Locurto, 157 N.J. 463, 474 (1999) (we will not disturb the lower court's credibility assessments unless clearly in error). Dr. Jeffrey had an opportunity to examine the case history in detail while Dr. Goldberg had a much narrower perspective from which to draw conclusions.
The trial court provided a lengthy summary of the relevant documents and trial testimony while likewise accurately expressing the applicable legal principles. The court closely adhered to the "best interests of the child" test as enunciated in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591 (1986) and codified at N.J.S.A. 30:4C-15.1(a). The court did not base its decision solely on defendant's record of incarceration, as defendant argues. That was only one of several factors considered. S.S. has been arrested thirty-seven times in her lifetime. She has demonstrated a drug dependency and has recently tested positive for cocaine use. She has not been able to maintain employment and, throughout her lengthy involvement with Division of Youth and Family Services (DYFS), she has been unable to demonstrate the ability to act as an adequate parent. Her failures continue to this day.
As to her second contention, a kinship legal guardianship can be employed only "[w]hen adoption is neither feasible nor likely . . . ." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 508 (2004). "'Such a guardianship is clearly intended to formalize the status of a relative [or other caregiver] who agrees to take responsibility for a child, see N.J.S.A. 3B:12A-4a(1), and can remain in place throughout the child's minority, N.J.S.A. 3B:12A4a(6).'" Id. at 510 (quoting N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 87 (App. Div. 2003)). This arrangement is favored where it provides a more permanent home for a child than foster care. See Id. at 512. By definition under the Act, the caregiver may be any "person over 18 years of age, other than [the] parent, who has a kinship relationship with the child and has been providing care and support for the child, while the child has been residing in the caregiver's home, for either the last 12 consecutive months or 15 of the last 22 months." N.J.S.A. 3B:12A-2. In the instant case, defendant did not present any viable candidates to care for the child, either biologically related or unrelated. Further, the expert testimony indicated that the foster parents have forged a close emotional bond with the child, and the record reflects that the foster parents have expressed a desire to adopt N.W.
S.S. has demonstrated a lack of ability to care for her child and a lack of serious interest in seeking treatment for her several legal and emotional problems. It is clear that her pattern of self-destructive behavior and neglect has been quite harmful to the child. At this point, the child would suffer more by being ...