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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 5, 2011

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

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-69-10. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 19, 2011

Before Judges Sabatino, Ashrafi and Fasciale.

Defendant appeals from an October 27, 2010 order terminating his parental rights to his biological six-year-old daughter, L.E.G. He argues that the judge erred by terminating his rights because the New Jersey Division of Youth and Family Services (the Division) failed to establish by clear and convincing evidence each prong of the best interests of the child standard, N.J.S.A. 30:4C-15.1(a).*fn1 We disagree and affirm.

The Division became involved with this family on September 14, 2005, when it received a referral from L.E.G.'s pediatrician that the child was underweight. The doctor reported that the mother had complained of domestic abuse and that defendant used alcohol frequently. The Division investigated and learned that the family lived in a small room and was facing eviction proceedings for nonpayment of rent.

The Division opened a case to monitor the family and provide services. The Division provided financial services to address the back rent, arranged for a nurse to visit the home weekly to check on L.E.G.'s health, and arranged for in-home counseling. The counseling commenced in December 2005 and the mother reported that defendant hit her in November 2005, giving her a black eye.

On January 12, 2006, L.E.G. was admitted to the hospital due to continued concerns regarding her failure to gain weight. That same day, the Division received a second referral reporting that defendant was arrested for punching and threatening to kill the mother. The Division substantiated the allegation of abuse and neglect. Defendant remained incarcerated for the domestic violence incident from January 7 to March 8, 2006. The mother obtained a restraining order (RO) against defendant, which he violated repeatedly. The RO permitted defendant to apply for supervised visitation with L.E.G., but he did not.

On January 30, 2006, L.E.G. was admitted to an inpatient feeding program at Children's Specialized Hospital (CSH). In March 2006, CSH discharged L.E.G. and she was admitted to St. Clare's, a home for medically fragile children. In December 2006, St. Clare's discharged L.E.G.

Despite receiving notice, defendant failed to appear at two proceedings in March 2006 at which the court awarded care, custody, and supervision of L.E.G. -- then eleven months old --to the Division. The Division placed her in the home of her current caregivers, where she has thrived. L.E.G. currently enjoys a nurturing and loving home, and her caregivers wish to adopt her.

In April 2006, a caseworker contacted defendant but he refused to provide an address or say whether he was working. According to the caseworker, he told her that it was "none of her business." Between April 2006 and June 2006, the caseworker attempted to contact defendant without success. The caseworker learned that defendant had been arrested again on June 2006, but he made bail and disappeared. He was later arrested in January 2007 and incarcerated until June 2007. The Division's next contact with defendant was when he was incarcerated for a third arrest in January 2010.

On behalf of the Division, Dr. Karen Wells, a forensic psychologist, performed a psychological evaluation of defendant in May 2010, and a bonding evaluation of the foster father in May 2010. During his psychological evaluation, defendant stated to Dr. Wells that he had not (1) appeared in court because he wanted to avoid arrest warrants; (2) attended anger management counseling because he believed he had no problem; (3) cooperated with the Division because he did not like his caseworker; and (4) accepted any responsibility for L.E.G.'s removal. Dr. Wells opined that the Millon Clinical Multiaxial Inventory (MCMI) test results showed that defendant possesses a number of undesirable traits, including impulsiveness, untrustworthiness, irresponsibility, and undependability. She diagnosed defendant with "[m]ixed [p]ersonality [d]isorder, prominent anti-social and narcissistic features," and found "no clinical indication that [defendant] possesses the psychological and emotional capabilities to assume even minimal parental care and responsibility for [L.E.G.]."

After conducting the bonding evaluation of L.E.G. and her foster father, Dr. Wells concluded that L.E.G. had "a secure and intact child, parent bond." Dr. Wells opined that L.E.G. would suffer traumatically if she were removed from her foster family, and that defendant lacked the capacity to meet L.E.G.'s needs and minimize the harm she would suffer if she were removed.

The five-day trial took place on nonconsecutive dates between June 2010 and October 2010. The caseworker and Dr. Wells testified for the Division. Defendant testified on his own behalf. He admitted that he was incarcerated multiple times over forty years, and that he had been in jail at the time of the trial for joyriding and for failing to report to probation. On the third day of trial, Judge Flynn ordered defendant to undergo a substance abuse evaluation, but he failed to comply.

In rendering his decision, Judge Flynn correctly employed the four-prong test contained in N.J.S.A. 30:4C-15.1(a), which requires that the Division prove by clear and convincing evidence:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. . . .;

(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986).

Judge Flynn determined that there was clear and convincing evidence to meet the first prong because defendant had subjected the child to an environment of domestic violence, ignored the child's medical issues, and endangered the child emotionally by failing to develop and maintain a bond with her. The judge found that the defendant had been in and out of jail, had made violent threats against the mother and the Division, and had ignored the mother's restraining order by contacting her. Thus, the judge concluded properly that the safety, health and development of L.E.G. had been and would continue to be

endangered by the parental relationship with defendant.

The judge found that there was clear and convincing evidence to meet the second prong because defendant was unwilling or unable to provide a safe and stable home for the child. The judge concluded that defendant was unwilling to do what is necessary to address the issues. He won't even acknowledge the issues. He won't go to anger management counseling. He certainly won't go to parenting counseling. He has . . . failed to stay in contact with the Division, and of course with his child.

He has been unwilling to comply with the law, certainly because of the various criminal histories . . . and [he] is willing to violate [the mother's restraining] order continually.

He has accepted no services. And he has been unable . . . to provide a stable home .

Defendant testified that he avoided the court proceedings because he had outstanding arrest warrants, and that he avoided the Division because he did not like the caseworker. He showed a lack of appreciation for L.E.G.'s problems, testifying that he was not concerned about her failure to sustain healthy weight.

Finally, in May 2010, Dr. Wells found "no clinical indication that [defendant] possesses the psychological and emotional capabilities to assume even minimal parental care and responsibility for [L.E.G.]." She opined that defendant lacked the capacity to meet L.E.G.'s needs and minimize the harm she would suffer if removed from her foster family. The judge appropriately relied upon this unrefuted expert testimony.

As for the third prong, the judge correctly found that the Division had made reasonable efforts to provide services to help defendant correct the circumstances that led to L.E.G.'s placement outside the home. Judge Flynn stated that everyone, including defendant, agreed that the Division had done all that it could do.

In finding that the fourth prong was also met, the judge concluded that termination of parental rights would not do more harm than good. L.E.G. is thriving in the care of her current caretakers. Defendant had not seen L.E.G. for over five and a half years, although most of that time he was not incarcerated, and had shown a lack of concern for his failure to bond with her. The child's compelling need for permanency, see, e.g., N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004), supported the conclusion required by the fourth prong.

Our standard of review is limited. In re J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb factual findings when they are "so manifestly unsupported by or inconsistent with the competent, relevant, and reasonably credible evidence as to offend the interests of justice." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (instructing that trial court findings are to receive deference unless "so wide of the mark that the judge was clearly mistaken"). Here, the judge's findings are supported by adequate, substantial and credible evidence.

For these reasons and others more fully described in Judge Flynn's oral decision dated October 27, 2010, with which we substantially agree, we affirm the judgment under review.

Affirmed.


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