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Division of Youth and Family v. T.W

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 8, 2011

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

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-101-09. Yvonne Smith Segars, Public Defender, attorney for appellant (Justin J. Walker, Designated Counsel, on the brief).

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 1, 2010

Before Judges Cuff, Sapp-Peterson and Fasciale.

T.W. appeals from the Family Part order terminating his parental rights to J.J.W. and granting guardianship of J.J.W. to the Division of Youth and Family Services (Division). We affirm.

J.J.W., born on June 20, 2005, is the biological son of T.W. and the now-deceased K.S. On the weekend of March 21, 2008, T.W.'s niece, A.W., and K.S. traveled to Atlantic City to attend a birthday party. The two women had been friends for approximately three years and spent a lot of time together. A.W. was familiar with K.S.'s relationship with her uncle, and K.S. had expressed to A.W. her fear of T.W. During a conversation the two women had on March 25, K.S. told A.W. that she had found knives hidden throughout her apartment and a large landscaping rock wrapped in a sheet in one of her closets. On that same day, T.W. told A.W. that K.S. was "gonna make [him] kill her" because he suspected that K.S. was unfaithful. K.S. told A.W. that she planned to change the locks to her apartment the next day. However, when A.W. attempted to reach K.S. the next day, K.S. did not answer her phone, did not respond to knocks on her door, and did not show up for work. Thus, A.W. became fearful for K.S.'s safety and contacted police.

Police gained access to the apartment and found K.S. dead, lying face-up in a pool of blood in the foyer of her apartment with J.J.W. seated next to her, patting her head and stroking her hair. Police immediately removed J.J.W. from the scene and brought him to A.W.

J.J.W. initially would not go to A.W. He appeared very distraught and his diaper was very wet. He hysterically screamed and repeatedly stated to police, "[T.W.] hit my face, [T.W.] hit my face," and "fuck you bitches, fuck you up." J.J.W. also stated that T.W. struck his mom in the face. He moved his closed fist "forward and backwards" several times as if he was stabbing someone. J.J.W. was later taken to the Camden County Prosecutor's Office where he reportedly told child abuse investigators that T.W. had punched his "mommy" in the face and that his "mommy" had said bad words. He demonstrated to the investigators T.W.'s actions by slapping an investigator in the face and saying "shut up bitch," and "what are you going to do, bitch[.]" Also using a doll to demonstrate what happened, J.J.W. threw the doll across the room, knocked over the chairs, and stated "shut the fuck up, bitch."

On March 27, the Division filed a verified complaint and order to show cause (OTSC) against T.W. alleging abuse and neglect as to J.J.W. The following day, the court entered an order placing J.J.W. with his maternal grandmother, D.S., where he has remained throughout the guardianship proceedings. Defendant was subsequently apprehended and charged with the murder of K.S. and was awaiting trial at the time the guardianship trial occurred.*fn1

On February 10, 2009, the Division filed its guardianship complaint seeking termination of T.W.'s parental rights. Trial on the complaint commenced on August 10 and concluded on August 11. One month later, the court issued a written opinion terminating T.W.'s rights to J.J.W. and entered an order enforcing its written opinion on September 21.

On appeal T.W. raises the following points for our consideration:

POINT I

THE EVIDENTIARY FINDINGS OF THE TRIAL COURT DO NOT SUPPORT A LEGAL FINDING THAT ALL FOUR PRONGS UNDER N.J.S.A. 30:4C-15.1a WERE MET IN THIS CASE.

A. THE FIRST PRONG OF THE BEST INTERESTS TEST WAS NOT SATISFIED.

B. THE SECOND PRONG OF THE BEST INTERESTS TEST WAS NOT SATISFIED.

C. THE THIRD PRONG OF THE BEST INTERESTS TEST WAS NOT SATISFIED.

D. THE FOURTH PRONG OF THE BEST INTERESTS TEST WAS NOT SATISFIED.

We have considered the points raised in light of the record and the applicable legal principles and conclude they are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Octavia Melendez in her cogent and well-reasoned written opinion of September 11, 2009.

The balance between parental rights and the State's protective interest over the welfare of children is achieved through application of the statutory "best interests of the child" standard first enunciated by the Court in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-11 (1986), now codified in N.J.S.A. 30:4C-15.1. The statute provides in pertinent part:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" . . . if the following standards are met:

(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-15.1(a).]

The four statutory criteria "are not discrete and separate[.]" In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Rather, "they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid. Judicial determinations of whether the Division has satisfied the statutory prerequisites to termination of parental rights are "fact sensitive." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005) (citations and internal quotation marks omitted). For the trial judge, who sits as the fact-finder, this process involves assessing credibility, which means that the trial judge must sift through the evidence presented, evaluate the demeanor of the witnesses under both direct and cross-examination, consider any potential bias or prejudice of the witnesses, and then arrive at a determination of whether the Division, by clear and convincing evidence, has met the four-part test. See N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 274-76 (2004).

On appeal, the 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)). As a reviewing court, our task is not to disturb the "'factual findings and legal conclusions of the trial judge unless [we are] 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., 65 N.J. 474, 484 (1974)).

Addressing the first prong, we reject T.W.'s argument that he was prejudiced by the lack of a bonding evaluation and that there was no evidence that he had ever harmed J.J.W. Judge Melendez found that even in the absence of a conviction for K.S.'s murder, the evidence before the court that she credited established that T.W. had a history of involvement in criminal activity, did not hold a job on a regular basis, and did not have a habitual place of residence. Additionally, despite defendant's contention that he sought a bonding evaluation, the record disclosed that initially he actively resisted bonding evaluations. It was only after the court scheduled the trial date that T.W. sought the bonding evaluation. At that point, the court ruled that it would first order an evaluation of J.J.W. in order to determine what, if any, impact the bonding evaluation between T.W. and J.J.W. would have upon J.J.W., and once this evaluation was completed, T.W. could make his application for the bonding evaluation. However, once the evaluation was completed, T.W. did not request the bonding evaluation.

Additionally, the psychological evaluation of T.W., performed by Dr. Chester Sigafoos, a licensed clinical psychologist, which the court credited, revealed that defendant had limited self-control, was a high risk to act out impulsively and lacked good judgment. Thus, independent of the pending criminal charges, there was substantial credible evidence in the record demonstrating the harm caused to J.J.W. occasioned by T.W.'s conduct.

Turning to the second prong, the record is devoid of any evidence demonstrating that T.W. has overcome the failings in his character and conduct that endanger J.J.W. He remains incarcerated and has offered no plans for providing a stable and safe home for J.J.W. in the future. We are satisfied that there is ample evidence in the record to support the judge's finding that defendant was "psychologically unbalanced" with "no idea about providing a safe and stable home for [J.J.W.]" Moreover, there was substantial, credible evidence before the court of the strong and enduring bond between J.J.W. and his maternal grandmother, D.S., with whom J.J.W. was placed shortly after K.S.'s death. The evidence before the court demonstrated that J.J.W. was flourishing in the custody of D.S. Specifically, in contrast to not going to school and cursing while in the care of K.S. and T.W., under D.S.'s care, J.J.W. was attending school and not cursing. Therefore, Judge Melendez properly concluded that the Division satisfied the second prong by clear and convincing evidence.

Under the third prong, the Division was required to make reasonable efforts to provide services to T.W. that would assist him in correcting the circumstances that led to J.J.W.'s removal. N.J.S.A. 30:4C-11.2 provides that compliance with this prong is not required where "removal of the child was required due to imminent danger to the child's life, safety or health" and "[e]fforts to prevent placement were not reasonable due to risk of harm to the child's health or safety." N.J.S.A. 30:4C-11.2(a)(4) and (b).

We find no abuse of the court's discretion in waiving compliance with this third prong. J.J.W. was found alone in a pool of blood seated next to his murdered mother. He implicated his father as the person who harmed his mother. T.W. was arrested and incarcerated and has since been convicted for K.S.'s murder. Removal was necessary to protect J.J.W. from further harm. T.W.'s continued incarceration militates against any effort to provide services geared toward reunification with J.J.W. at this point.

Finally, there is substantial, credible evidence in the record from which the court properly found that termination of T.W.'s parental rights would not do more harm than good. The court credited the testimony of the Division's expert witness, Dr. Sigafoos, that J.J.W. had formed a strong bond with D.S. as well as with his maternal aunt, who lives with them. He expressed the opinion that this strong bond served to mitigate the extreme trauma experienced by J.J.W. in witnessing his mother's murder and being left with the body. The court also credited the testimony of Charmain Bryant, an adoption specialist who served as J.J.W.'s caseworker. Bryant also testified as to her observation of the strong bond that exists between J.J.W. and D.S. To summarize, we have considered the points raised on appeal in light of the record and the applicable legal principles and are satisfied there is substantial credible evidence in the record to support Judge Melendez's findings. The evidence clearly and convincingly establishes that the best interests of J.J.W., when assessed under the statutory standards set forth in N.J.S.A. 30:4C-15.1(a), warrant termination of T.W.'s parental rights. K.H.O., supra, 161 N.J. at 348.

Affirmed.


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