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New Jersey Division of Youth and Family Services v. E.S

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 3, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
E.S., DEFENDANT-APPELLANT.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
K.G., DEFENDANT-APPELLANT.
IN THE MATTER OF W.S., A MINOR.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FN-05-42-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 4, 2011

Before Judges Ashrafi, Nugent and Kestin.

In these consolidated appeals, defendants, E.S. and K.G., the father and mother, respectively, of W.S. (the child), appeal from two orders resulting from a complaint filed by the Division of Youth and Family Services (DYFS or the Division)) pursuant to N.J.S.A. 9:6-8.21, alleging child abuse and neglect (the Title 9 action). See also N.J.S.A. 30:4C-12. Specifically, defendants challenge the trial court's order of September 14, 2009, which memorialized findings of abuse and neglect and continued custody of the child in DYFS. In a subsequent order, entered on January 22, 2010, the court accepted the Division's permanency plan. Defendants advance no argument regarding the validity of that order. Defendants, however, also challenge an April 7, 2010 order terminating the Title 9 action "because . . . a complaint for Termination of Parental Rights has been filed." That latter order continued DYFS's physical and legal custody of the child.

The September 14, 2009 order was entered by Judge Connor after three days of fact-finding hearings. His findings of fact and conclusions regarding abuse and neglect were stated orally. Judge Connor also entered the permanency order for reasons expressed on the record on January 22, 2010. DYFS filed a complaint for guardianship on March 5, 2010, and the order terminating the Title 9 litigation was entered by Judge Porto after a hearing on April 7, 2010, in which he found good cause to do so.

On appeal, each defendant raises two points for our consideration. Defendant E.S. argues:

POINT I

THE JUDGE ERRED BY ALLOWING HEARSAY INTO EVIDENCE AT THE HEARINGS.

POINT II

THE TRIAL COURT ERRED BY FINDING THAT DEFENDANT ABUSED AND NEGLECTED THE MINOR.

Defendant K.G. argues:

POINT I

THE FINDING OF ABUSE AND NEGLECT AND THE ORDER TERMINATING FN LITIGATION SHOULD BE REVERSED BECAUSE THE TRIAL COURT MISAPPLIED ITS DISCRETION AND VIOLATED THE DEFENDANT'S RIGHT TO A FAIRLY CONDUCTED TITLE 9 FACT-FINDING HEARING BY ADMITTING DYFS DOCUMENTS THAT WERE IRRELEVANT, NOT AUTHORIZED UNDER RULE 5:12-4(d), AND UNDULY PREJUDICIAL. POINT II

THE ORDER TERMINATING FN LITIGATION SHOULD BE REVERSED BECAUSE THE TRIAL COURT MISAPPLIED ITS DISCRETION IN FINDING THAT THE DEFENDANT ABUSED AND NEGLECTED W.A.S. UNDER N.J.S.A. 9:6-8.21c(4)(b) CRITERIA.

We affirm.

Our review of the record's details in the light of the arguments advanced by the parties discloses no misapplication of discretion on Judge Connor's part in any evidentiary ruling he made. See Estate of Hanges v. Metropolitan Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010) ("[A]n evidentiary determination made during trial is entitled to deference and is to be reversed only on a finding of an abuse of discretion.") Neither defendant proffered any testimony or other evidence in any of the fact-finding hearings. The documents proffered by the Division and received in evidence were relevant to the issues under consideration; and, to the extent required, they were properly authenticated and admitted as business records or otherwise authorized by N.J.S.A. 9:6-8.46a(3), Rule 5:12-4(d), and N.J.R.E. 803(c)(6). See In re Cope, 106 N.J. Super. 336, 343 (App. Div. 1969). The judge's discrete rulings on defendants' hearsay objections were well within discretionary bounds; they evinced an appropriately discriminating judgment in separating those portions of the proffers that could be considered from those that could not.

In reviewing the findings and conclusions of a trial judge, we may not disturb them unless they are "so manifestly unsupported by or are inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). That is, the "substantial evidence rule" applies. See In re Guardianship of A.R.G., 318 N.J. Super. 323, 330 (App. Div.), certif. denied, 162 N.J. 127 (1999). We are, also, obliged to recognize the special expertise possessed by judges of the Family Part, and to defer to them in individual cases unless a misjudgment is apparent. See Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Apart from these requirements, we are in substantial agreement, based upon the evidence, with the reasons given by Judge Connor for his findings and conclusions on the issues of parental abuse and neglect. See N.J.S.A. 9:6-8.21c(4).

There was ample evidence that defendant K.G., throughout her pregnancy, ingested various drugs; and that the child was born in a medically fragile condition as a result, and had to be treated for drug withdrawal symptoms he exhibited. The evidence also disclosed that K.G. had done little or nothing to address her drug dependencies or otherwise enhance her capacity for discharging her parental responsibilities.

The proofs also established clearly and convincingly that defendant E.S., despite the range of supportive services DYFS provided, was incapable, because of his drug dependency, attitudes and mental condition, of providing the care, nurturing and support the child required, or otherwise discharging his parental responsibilities.

We specifically reject each parent's argument that there was no proof he or she engaged in any affirmative conduct vis-A-vis the child that constituted abuse or neglect. It is the result of their behavior, i.e., the totality of each parent's conduct and omissions bearing upon the welfare of the child, that is the primary dispositive factor. See G.S. v. Department of Human Services, 157 N.J. 161, 176-182 (1999); DYFS v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).

After making his findings, Judge Connor concluded, in respect of both parents:

[B]y effectively treading water by not successfully engaging in services, by engaging in a sort of three-card monte with Doctor McKenzie [an out-of-state treating physician, whose treatment records were not reliably produced] and keeping all of the treatment providers down here in the dark and by being no more ready to welcome [an older child] home than they were the day she was removed, these parents thereby caused [the child] to be a neglected child under the [statutory] definition . . . essentially, I guess as of the . . . moment he was born because of their omissions and their inaction and their failure to accept and succeed in the services that were being offered and their inability, for whatever combination of reasons, to address their many deep-se[at]ed issues. So I'll enter a judgment under [N.J.S.A. 9:6-8.21]c(4)(b) and I think that the evidence is clear and convincing.

These conclusions are well supported by the record. As we have stated, we are in substantial agreement with Judge Connor in these respects.

Entry of the April 7, 2010 order, recognizing that a termination of parental rights case had been filed and terminating the Title 9 litigation, followed logically upon the findings and conclusions regarding abuse and neglect. No argument advanced by either defendant justifies vacation of that order or requires further elucidation in a written opinion. See R. 2:11-3(e)(1)(A),(E).

Affirmed.

20110803

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