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New Jersey Division of Youth and Family Services v. T.J.D.


December 16, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-32-08.

Per curiam.



Submitted November 4, 2009

Before Judges Carchman, Parrillo and Ashrafi.

Defendant T.J.D., who is incarcerated while awaiting trial on charges of sexual abuse of his children, appeals from the judgment of the Chancery Division, Family Part, terminating his parental rights to his daughter, J.B.D., and his son, T.C.D. The children's mother, D.D., a drug abuser, has voluntarily surrendered her parental rights, and the children are currently in foster care.

The children were removed from the custody of their parents in January 2007 when they were six and five years old respectively. At that time, D.D. reported to the police that the children had told her about being sexually abused by T.J.D. The Division of Youth and Family Services (DYFS) learned from the Burlington County Prosecutor's Office that the children had described many instances of touching of their private areas, attempted and actual vaginal penetration, touching of their father's penis, and other acts of sexual abuse. T.J.D. was indicted on charges of first-degree aggravated sexual assault, second-degree sexual assault, second-degree endangering the welfare of a child, and other offenses. He has professed his innocence and awaits trial in the Burlington County Jail, unable to post bail of $300,000 set by the criminal court. The conditions of bail include a prohibition against contact with his children.

After removal of the children, further investigation by DYFS revealed that the children also witnessed serious domestic violence by their father against their mother, their medical needs were unattended, and they missed school frequently. When they attended school, they were often dirty and unkempt, and they acted out inappropriately or violently, such as punching and hitting other children and teachers. They also engaged in sexual displays with toys and with each other, and they both had problems controlling their bodily functions. The children reported feeling unsafe at home, and both refused to see their father for a bonding evaluation.

T.J.D. contends that the evidence presented at trial did not prove the four criteria of N.J.S.A. 30:4C-15.1a for termination of parental rights.

Our standard of review on appeal is narrow. A reviewing court must defer to the family court's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). We also defer substantially to the trial court's assessment of expert evaluations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).

Deference is accorded because the trial court had the opportunity to "make first-hand credibility judgments" and to gain a "feel of the case," thus sustaining a level of factual familiarity that cannot be duplicated by an appellate court reviewing a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).

In E.P., supra, the Supreme Court said, "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." 196 N.J. at 104; accord In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605).

In this case, the family court appropriately analyzed the evidence within the framework of N.J.S.A. 30:4C-15.1a. We affirm the judgment terminating T.J.D.'s parental rights for the reasons comprehensively and cogently stated in the written opinion of Judge Jeanne T. Covert of the Family Part. We add only the following comments.

T.J.D. contends that the termination trial should have been adjourned until the conclusion of his criminal case. He argues that the children's placement would not have been affected by an adjournment because they are not in adoptive homes at this time. In addition, he asserts that acquittal at his criminal trial will allow him to demonstrate his willingness and ability to provide parental care and nurturing of his children.

At the time briefs were filed on this appeal, T.J.D. still had not been tried on the criminal charges, and the record does not reveal a scheduled trial date. The children have a strong interest in permanency. See D.M.H., supra, 161 N.J. at 383;

N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 610 (1986); In re Guardianship of S.C., 246 N.J. Super. 414, 425 (App. Div.), certif. denied, 126 N.J. 334 (1991). That interest should not be overlooked by allowing a long delay in the termination trial while awaiting disposition of the criminal charges.

Although the children have not been placed in adoptive homes, permanency for children such as these, displaying fear, anxiety, violent conduct, and other psychological injury, begins with separation from their abuser. At an earlier fact finding hearing, the trial court had found by a preponderance of the evidence that the children's allegations of sexual abuse by their father are true. The court's decision in the termination trial, however, did not depend only on a finding of sexual abuse. Considering the entirety of evidence of neglect and abuse, the court concluded "by clear and convincing evidence that the children are endangered by the parental relationship."

Moreover, as the trial judge concluded, if T.J.D. is acquitted of the criminal charges, the children still believe him to be their abuser and refuse to have contact with him. Also, he does not accept any responsibility for the serious impairment of their health and development, so obvious in their behavior and psychological symptoms. These factors do not favor delaying the termination of parental rights case while T.J.D. first defends against the criminal charges and then attempts to rehabilitate himself as a parent. The family court did not abuse its discretion in denying an adjournment. See State v. McLaughlin, 310 N.J. Super. 242, 259 (App. Div.), certif. denied, 156 N.J. 381 (1989); State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div. 1970), certif. denied, 58 N.J. 335 (1971).



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