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New Jersey Division of Youth and Family Services v. C.D

March 8, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
C.D., DEFENDANT, AND R.R., DEFENDANT-APPELLANT. IN THE MATTER OF THE GUARDIANSHIP OF A.D., A MINOR.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-108-10.

Per curiam.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 20, 2011 - Decided Before Judges Gilroy, Ashrafi and Nugent.

Defendant R.R. (the father), who is incarcerated, appeals from the judgment of the Chancery Division, Family Part, terminating his parental rights to his two-year-old son, A.D. The family court also terminated the parental rights of the child's mother, C.D., but she has not appealed. The Division of Youth and Family Services (DYFS) removed the child from the mother almost immediately after his birth on May 26, 2008, and, since that time, the child has been in the care of his maternal grandmother, who seeks to adopt him.

The father 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 his 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., 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 the father's parental rights essentially for the reasons stated in the written opinion of Judge Mark Nelson dated May 7, 2010. We add the following to summarize the facts and to address specifically the father's arguments raised on appeal.

The day after the child's birth, DYFS received referrals indicating that the father was incarcerated and the mother had a history of mental illness and had been living in a shelter. On June 17, 2008, DYFS filed a complaint against both parents seeking custody of the child. The family court placed the child in the custody, care, and supervision of DYFS, granting physical custody to the maternal grandmother. Since June 2008, the child has been continuously living with the grandmother and her male companion.

A paternity test confirmed that appellant R.R. is the child's biological father. He was originally incarcerated in 1999 on a conviction for armed robbery. He was paroled in June 2007, at which time he met the mother in a program where he was being treated for bipolar disorder as a condition of his parole. The mother became pregnant during this time period. Shortly thereafter, the father violated the terms of his parole and was re-sentenced to prison in December 2007. At the time of trial, he anticipated he would be released upon "maxing out" on his sentence in October 2012.

Following a series of appropriate proceedings in the family court, DYFS filed a complaint in July 2009 to terminate the parental rights of both parents. Psychological and bonding evaluations of all parties were completed in the next several months. The family court held a termination of parental rights trial on two dates in March and April 2010. The mother did not attend - she was out of state near the end of another pregnancy - but she was represented by counsel. The father was brought from prison to attend the trial, and he was also represented by appointed counsel.

Pursuant to a pretrial order, the court accepted in evidence sixty-two documentary exhibits offered by DYFS. The exhibits included investigative files, psychological and bonding evaluations, Department of Corrections records, and previous court orders. Most relevant to the issues now raised on appeal, the court admitted in evidence psychological and bonding evaluations conducted by Dr. Mark Singer, Ed.D.

During the father's evaluation at Northern State Prison, he told Dr. Singer he was then in administrative segregation because he "got into a fight . . . and the guy got hurt real bad." The father disclosed a history of substance abuse, and said that, when he was on parole, he was "drinking and getting high." He violated the reporting conditions of his parole to avoid testing positive for illegal and other prohibited substances.

Dr. Singer reached the following conclusions in his written report:

The test data further suggests that [the father] is a concrete individual who tends to be somewhat impulsive. He has difficulty dealing with ambiguity, has difficulty modulating affect, and is experiencing feelings of social inadequacy. These findings suggest [the father] likely has difficulty formulating and instituting appropriate plans and responding effectively and flexibly to changing circumstances, including the circumstances involved in caring for a child. . . . .

As previously noted, while no bonding evaluation was yet completed, the psychological data does suggest that, within a reasonable degree of psychological certainty, [the father] lacks the emotional and physical resources needed to care for [the child] at this time. The data further suggest that, within a reasonable degree of psychological certainty, [the father], even if released in the near future from prison, will not likely become a viable parenting option in the foreseeable future. The data suggest that [the father] will likely continue to have difficulty creating stability in his own life and, as such, no[t] be capable of creating the stability and security that a child requires.

Subsequently, Dr. Singer conducted a bonding evaluation of the child with his father on a visit to the prison. Dr. Singer noted that when the father arrived, the child did not respond to him. The father walked over to the child, picked him up, and repeated "I'm Daddy," at which time the child began to whine. The father carried him around the room, and the child stopped whining for a short time, but the whining resumed and continued for most of the visit. Dr. Singer also observed that the child tended to avoid eye contact with his father, and, when the father kissed him, the child physically pushed him away. Dr. Singer concluded:

The data clearly suggest that [the child] has not come to view [the father] as being a significant figure in his life. In reality, [the father] is a source of anxiety for [the child]. Considering the case history and lack of contact between father and son, such a finding is not surprising. . . . .

The child's behavior clearly indicates that [he] has not even established a comfortable level of familiarity with his father. The data suggest that, within a reasonable degree of psychological certainty, should [his] relationship with his father be severed, the child would not likely experience any significant and enduring harm. As [the child] has not come to view [the father] as being a significant figure in his life, should he lose ...


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