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New Jersey Division of Youth and Family Services v. S.P.R.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 5, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
S.P.R., III, DEFENDANT-APPELLANT, AND J.L.W., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF S.P.R., IV, A.L.R., AND C.J.R., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-87-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 22, 2010

Before Judges Fisher and Sapp-Peterson.

In May 2007, the Division of Youth and Family Services (the Division) executed an emergency removal of three children --S.P.R., IV (born August 12, 2004); A.L.R. (born September 12, 2005); and C.J.R. (born November 22, 2006) -- because they were living with their mother in a home that had no electricity; the children were found sleeping on pallets. Their father was incarcerated. The children were placed with their maternal grandmother.

Neither parent had attended any of the court-ordered services by the time of a permanency hearing in April 2008. Nevertheless, the Division requested and the court granted a three-month extension of the status quo in order to provide the father, who had been released from prison, with an opportunity to engage in the services provided. In August 2008, even though neither parent was in compliance with the services previously ordered, and even though the father had been reincarcerated, the judge rejected the Division's plan of seeking termination and provided the parents with additional time. The children's father had been released from prison by the time of a third permanency hearing in October 2008. This time -- because "neither parent ha[d] completed services," the children's father "ha[d] been persistently incarcerated," and the Division had expended reasonable efforts to reunify the family by offering substance abuse and psychological evaluations, anger management and domestic violence classes, and therapy -- the judge approved the Division's permanency plan of terminating parental rights so the maternal grandmother could adopt the children.

The guardianship complaint was filed in December 2008. Psychological evaluations and bonding evaluations were ordered and completed by May 2009. The guardianship trial commenced on May 28, 2009. On the third day of trial, defendant J.L.W. --the children's mother -- voluntarily surrendered her parental rights. After considering all the evidence developed during the four-day trial, the trial judge rendered a written decision in which she concluded it was in the children's best interests to terminate the parental rights of defendant S.P.R., III, the children's father (defendant).

Defendant appealed, raising the following issues for our determination:

I. THE TRIAL COURT'S TERMINATION OF THE FATHER'S PARENTAL RIGHTS WAS AGAINST THE WEIGHT OF ADMITTED EVIDENCE AND TESTIMONY.

A. The Trial Court Erred in Concluding that DYFS Had Demonstrated, By Clear And Convincing Evidence, That the Father's Relationship With His Chi[l]dren Has Caused or Will Cause Enduring Harm.

B. The Trial Court Erred in Concluding that DYFS Had Demonstrated, By Clear and Convincing Evidence, That It Had Made Reasonable Efforts to Provide Services to The Father.

C. The Trial Court Erred in Failing to Adequately Consider Alternatives to Termination of Parental Rights.

D. The Trial Court Erred in Concluding that DYFS Had Demonstrated, by Clear and Convincing Evidence, that the Termination of the Father's Parental Rights Would Not Do More Harm Than Good.

After carefully reviewing the record in light of the issues raised, we find insufficient merit in defendant's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

In making her decision, Judge Louise DiRenzo Donaldson employed the four-prong test contained in N.J.S.A. 30:4C-15.1(a), which requires that the Division prove by clear and convincing evidence:

(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 . . .;

(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.

See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986).

In considering the first prong, Judge Donaldson found there was clear and convincing evidence to demonstrate this prong favored termination for a number of reasons. The judge explained that "[a]lcohol is clearly [defendant's] priority since he has yet to complete substance abuse treatment and has left his children in the care of others."*fn1 Certainly, a parent with such serious alcohol problems presents a risk of harm to a child that is further enhanced, particularly in this case, by the parent's inability to understand the extent of the risk.

In addition, one expert testified that defendant "reported symptoms of health preoccupation, inner personal alienation, emotional discontrol, [and] feelings of depression." The Division's expert determined that defendant is predisposed to "feel anger frequently toward a lot of difficult stimuli" and he is "at risk for acting out aggressively against those he feels are treating him poorly." Another expert expressed similar concerns about defendant's "overall ability to modulate his anger." These views were illuminated by defendant's past physical abuse of the children's mother, leading at one point to the mother's obtaining a domestic violence restraining order against him.*fn2

The judge also found defendant's persistent incarceration presented a risk of harm to the children because it precluded his ability to provide for the child. Moreover, even when free from incarceration, defendant has been unable to provide a safe or stable home for the children and has had, at best, a checkered employment history.*fn3

In her comprehensive and thoughtful opinion, Judge Donaldson also found that clear and convincing evidence concerning the other statutory prongs warranted termination. Certainly, the evidence supporting the first prong, briefly outlined above, dovetailed into the requirements of the second prong because of defendant's inadequate and incomplete efforts at eliminating the harm. The Division, as the judge found, made all reasonable efforts before seeking termination. And ultimately, these circumstances and the children's compelling need for permanency, see, e.g., N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004), supported the conclusion --required by the fourth prong -- that termination would not do more harm than good.

Our standard of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "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), we only disturb factual findings when they are so manifestly unsupported by or inconsistent with competent, relevant, and reasonably credible evidence as to offend the interests of justice. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998). For these reasons and others more fully described in the judge's written decision, with which we substantially agree, we affirm the judgment under review.

Affirmed.


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