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Division of Youth and Family Services v. T.A.W

April 27, 2011

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



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-103-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 9, 2011

Before Judges Fuentes, Ashrafi and Nugent.

Defendant T.A.W., a developmentally disabled mother of three children, appeals from the judgment of the Chancery Division, Family Part, terminating her parental rights so that her two younger children, now ages five and four, can be adopted by their paternal grandmother. We affirm.

Defendant's oldest child, who has a different father, is not the subject of this case and is currently in the care of relatives. Defendant and the Law Guardian for the two younger children contend on appeal that the family court's judgment should be reversed because the court erred in its evaluation of the evidence presented at trial. They argue the evidence did not satisfy the four criteria required by N.J.S.A. 30:4C-15.1a for termination of defendant's parental rights.

We affirm essentially for the reasons stated in the cogent written opinion of Judge Octavia Melendez filed on November 6, 2009. The judge carefully considered the evidence as it applies to the criteria of the statute and concluded by the clear and convincing standard of proof that it is in the best interests of the children to proceed to adoption. Substantial credible evidence in the record supports the court's findings of fact and the conclusions of law based on those findings. We add only the following comments to address directly some specific arguments made by defendant and the Law Guardian.

We do not sit as a court weighing the evidence to make an initial decision. 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 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" over time, thus supporting 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." Ibid.; 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). The family court's conclusions in this case were not wide of the mark but well-supported by the extensive record the Division of Youth and Family Services (DYFS) presented to demonstrate that defendant's parental rights should be terminated in the best interests of these children.

To summarize the case briefly, DYFS had a long history of contacts with defendant because of her inability to care for any of her three children. The first referral was in 2000 when the defendant's older daughter was born and hospital personnel were concerned for the welfare of the baby because of defendant's mental limitations. Referrals to DYFS continued until November 2007, when the last of five removals of all three children occurred because defendant was homeless in the street with them.

Without recounting the history as to the older daughter, we note that defendant's abuse or neglect of that child can be considered in assessing whether defendant has also harmed the two younger children. See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.), certif. denied, 192 N.J. 68 (2007); Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002); see also N.J.S.A. 9:6-8.46a (evidence as to other children admissible in abuse or neglect case).

The father of the two younger children has voluntarily surrendered his parental rights. The paternal grandmother has been caring for the children since March 2008, and, by the accounts of all professionals who evaluated the children and testified at trial or provided written reports, the children have been thriving in their grandmother's care.

On the other hand, defendant has never been capable of providing a safe home for her children. DYFS investigations repeatedly found defendant's home in a deplorable condition of filth and squalor, with open containers of decaying food, scattered trash and personal belongings, dirty diapers, dog feces, and general disarray. In addition, over the years DYFS offered many types of services to improve defendant's homemaking and parenting skills, but the programs that were attempted reported they had reached maximum benefit for defendant without the prospect that she would become capable of caring for her children. The trial court listed ...


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