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

September 28, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-03-08.

Per curiam.



Submitted September 12, 2011

Before Judges A.A. Rodriguez, Sabatino, and Fasciale.

This termination of parental rights case returns to our court on an appeal by a birth father, E.R., following a five-day trial conducted pursuant to the remand ordered in our June 2009 unpublished opinion. See In re Guardianship of C.R., Nos. A-4110-07 and A-4229-07 (App. Div. June 16, 2009).

The child in question, C.R. ("Cynthia"*fn1 ), was born in September 2005 to an unmarried couple, appellant E.R. and the birth mother, J.V. Cynthia was removed from the birth parents' care by the Division of Youth and Family Services ("DYFS" or "the Division") in December 2005, after a report of suspected burns on the child's face.*fn2 Cynthia was initially placed with a maternal relative in New Jersey. She was returned to her parents' care in April 2006 but was removed again later that month after the Division received a report of bruising on her face and hand. The Division obtained protective custody of Cynthia, and, after a fact-finding hearing in May 2006, the trial court determined that appellant and J.V. had abused or neglected Cynthia.

Subsequently, in July 2006, Cynthia was placed in the care of D.C., her maternal great-aunt, and D.C.'s husband, M.C., in Virginia. The child has lived with those relatives in Virginia ever since that time. Meanwhile, appellant and J.V. relocated to Virginia, where they resided together until December 2006 when J.V. moved out of their apartment. J.V. thereafter reported that appellant had committed domestic violence against her, and appellant reported to the police that J.V. had broken into their apartment after she had moved out. A psychologist who evaluated appellant following these episodes observed numerous pathological disorders that, in the doctor's opinion, interfered with appellant's ability to act appropriately as a parent.

The Division thereafter sought to terminate the parental rights of appellant and J.V., thereby enabling the maternal relatives in Virginia to adopt Cynthia. A guardianship trial was conducted in January and February 2008. Based upon the proofs, the Family Part judge who presided over that trial*fn3

concluded that the Division had proven all four of the necessary criteria for termination under N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Both parents appealed that determination.

On the initial appeal, we sustained the trial court's findings that the Division had sufficiently established prongs one and three of the termination statute. In re Guardianship of C.R., supra, slip op. at 22-23, 25-26. In particular, we upheld the finding under prong one that, in light of the observed bruises and facial marks, Cynthia's "safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). We further affirmed the court's determination under prong three that the Division had made sufficient "reasonable efforts" to assist the parents and that "alternatives to termination" had been sufficiently explored. N.J.S.A. 30:4C-15.1(a)(3). However, we remanded the case for further development of the record concerning prongs two and four of the statute. Specifically, the trial court was directed to address more fully under prong two whether the parents were "unwilling or unable to eliminate the harm facing the child or . . . unable or unwilling to provide a safe and stable home for the child" and whether "the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1(a)(2). We also instructed the trial court to re-examine under prong four whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4).

Our decision to remand this case for further consideration of prongs two and four was largely prompted by a concern that bonding evaluations with appellant had not been completed before trial and that the failure to complete them may not have been appellant's fault. Rather than have the case adjudicated based upon a one-sided presentation by the Division's bonding expert, we remanded to enable further expert evaluation and testimony.

Following our remand, bonding evaluations of the child with appellant were completed. In addition, further expert assessments were completed, providing more comprehensive and updated proofs about the circumstances of the birth parents, Cynthia, and the maternal relatives who wish to adopt her. Throughout these proceedings, Cynthia remained in the care of the maternal relatives in Virginia.

The remand proceedings were conducted over five days of trial in May 2010 before Judge Mark A. Troncone. The Division presented four witnesses: Margaret S. Beekman, Ph.D., a licensed psychologist; Amanda Bristow, a Division adoption specialist; M.C.; and D.C. The Law Guardian presented expert testimony from Maureen R. Santina, Ph.D., a forensic and clinical psychologist. E.R. did not testify, though he presented one expert witness: William Dennis Coffey, Psy.D., a psychologist. ...

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