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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 28, 2011

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

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

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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an appeal by a birth father, E.R., following a five-day trial conducted pursuant to the remand ordered in our June 2009 unpublished opinion.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. J.V. testified on her own behalf, and she also presented as an expert witness, Jesse Whitehead, Jr., Psy.D., a psychologist.

After considering these proofs from the remand proceedings, Judge Troncone reinstated the trial court's previous decision to terminate the parental rights of both J.V. and appellant. In particular, Judge Troncone was satisfied that the Division had established on remand, by clear and convincing evidence, the two open prongs of the statute, i.e., prongs two and four. A final judgment of guardianship was consequently issued on June 25, 2010.

On appeal, E.R.*fn4 argues that the trial court erred in concluding that the Division had met its burden of proof in the remand proceedings. Appellant argues that the remand proofs warrant contrary determinations, i.e., that he is, in fact, able and willing to eliminate the harm facing Cynthia and to provide a safe and stable home for her (prong two), and that the termination of his parental rights will cause Cynthia more harm than good (prong four).

Having considered these points on appeal, in light of the now-amplified record and the applicable law, we sustain the termination of appellant's parental rights. We do so substantially for the cogent reasons expressed in Judge Troncone's comprehensive and perceptive written opinion dated June 25, 2010. We discern no reason to disturb Judge Troncone's findings, as they are supported by substantial credible evidence and have not been shown to be clearly mistaken or to have produced a denial of justice. See N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (noting the limited standard of review applicable in guardianship cases). We add only a few comments regarding each of the two critical statutory criteria.

With respect to the second prong, Judge Troncone found that the parents' persistent denials of past incidents of domestic violence between them were "profoundly troubling and compelling evidence" that J.V. and appellant are unable or unwilling to eliminate harm to Cynthia and provide her with a safe and stable home. The judge further noted that appellant's "defensiveness in discussing the topic as noted by his own expert, Dr. Coffey, together with his egocentricity, aggressiveness, arrogance and intolerance of others as noted by Drs. Beekman [the Division's expert] and Santina [the Law Guardian's expert], make[] it apparent that the potential for future domestic violence remains in place." The judge further and aptly noted that an attempted reunification of Cynthia with her parents in 2010 would be "a long and arduous process[, which would] place[] significant stress on both J.V. and E.R. and upon their relationship." The judge had ample reason to agree with testimony from respondent's experts that such pressures would "likely result in the reoccurrence of domestic violence."

As Judge Troncone also observed, "it is clear that [the] foster parents D.C. and M.C. have provided a safe and stable home for Cynthia[.]" Indeed, "[a]ll four experts agree that Cynthia is strongly bonded to D.C. and M.C., and they to her." Consequently, the judge was persuaded that "the permanent placement [of Cynthia] with them would be in the child's best interests."

Judge Troncone fairly and thoughtfully weighed the credible proofs in concluding that the fourth prong of the statute had been proven and that the termination of the birth parents' rights would not do more harm than good. The judge specifically found that Dr. Beekman and Dr. Santina were "remarkably consistent and unequivocal" in their views that "the separation of Cynthia from the foster parents would likely result in substantial and enduring emotional and psychological harm." The judge was also rightly concerned that appellant's expert, Dr. Coffey, was "equivocal" in his views and that Dr. Coffey did not affirmatively endorse reuniting Cynthia with appellant at this juncture and entrusting her to his care.

We are satisfied that the trial court's determinations on remand are factually grounded and legally sound, and should be upheld. We see no reason to forestall the termination of parental rights and the adoption of this child by her capable and loving maternal relatives, who have patiently abided these protracted proceedings since the first trial was conducted in 2008.

Affirmed.


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