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New Jersey Division of Child Protection and Permanency v. C.A.S.-B.

Superior Court of New Jersey, Appellate Division

May 30, 2013

C.A.S.-B. and J.J.B., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF S.L.B. AND M.L.B., MINORS.


Submitted May 21, 2013.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-40-12.

Joseph E. Krakora, Public Defender, attorney for appellant C.A.S.-B. (Deric Wu, Assistant Deputy Public Defender, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant J.J.B. (Albert M. Afonso, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Alexis Goldberger, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for S.L.B. and M.L.B., minors (Maria Emilia Borges, Assistant Deputy Public Defender, on the brief).

Before Reisner and Harris Judges.


Defendants C.A.S.-B. (Caryn) and J.J.B. (John), appeal from the Family Part's September 26, 2012 final judgment of guardianship terminating parental rights to their two daughters S.L.B. (Sophie) and M.L.B. (Molly), [1] who are living with relative resource parents who wish to adopt them. We affirm substantially for the reasons expressed by Judge Mary Gibbons Whipple in her thorough thirty-one page written opinion. We add the following comments.

Except for John's separate argument that Judge Gibbons Whipple abused her discretion in failing to grant an adjournment of the trial due to the late delivery of discovery materials, Caryn and John both contend that the New Jersey Division of Child Protection and Permanency (the Division) failed in multiple respects to prove each of the four factors of N.J.S.A. 30:4C-15.1(a)'s best-interests-of-the-child test by clear and convincing evidence. Our review of the record convinces us that Judge Gibbons Whipple neither abused her discretion vis-à-vis the scheduling of the trial nor otherwise erred in assessing the Division's proofs and ordering the termination of Caryn's and John's parental rights.


The trial evidence is detailed at length in Judge Gibbons Whipple's opinion. We have reviewed the record, conclude that her factual findings are supported by ample credible evidence, and deem Caryn's and John's arguments to the contrary meritless. R. 2:11-3(e)(1)(A); -3(e)(1)(E); see also, N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (holding a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial credible evidence in the record as a whole).

In summary, the Division's involvement with the family began more than a year before Sophie was born. For years, Caryn and John endured a tempestuous relationship that culminated in episodes of domestic violence punctuated by bouts of mental illness, followed by serial efforts at therapy. Following multiple interventions by the Division, the Family Part —— in a separate 2008 Title Nine proceeding —— found that John abused and neglected his children; Caryn stipulated that she too engaged in domestic violence in the presence of her children, which "constitute[d] abuse or neglect pursuant to law."

Caryn and John were referred for multiple services provided by the Division, mainly concentrating on the mental health aspects of avoiding domestic violence. Notwithstanding these efforts, a final restraining order against John, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 through -35, was entered on June 30, 2009. At that time, Sophie and Molly remained in the custody of Caryn, albeit under the close watch of the Division.

In March 2011, the Division made an emergency removal of Sophie and Molly because Caryn was found disoriented and unable to care for the children. Caryn was hospitalized for nearly one week, while her children were placed with the resource parents with whom they have lived ever since. The Division was granted care, custody, and supervision of the children.

In the ensuing weeks, Caryn participated in substance abuse counseling and treatment. John was incarcerated on charges unrelated to his role as a parent. Caryn was also incarcerated on separate charges. Visitation was suspended for months.

After her release, Caryn was referred for substance abuse counseling. Her supervised visitation with Sophie and Molly recommenced in June 2012. The guardianship trial occurred in July 2012.

The Division presented the testimony of three caseworkers, who described the Division's history with the family and its efforts to provide assistance. Also, Robert Kanen, Psy.D., who conducted psychological evaluations of the parties, including performing bonding evaluations, testified on behalf of the Division. Dr. Kanen opined that neither Caryn nor John would be able to effectively parent Sophie and Molly in the near future, and that if the children were removed from their present placement the children would be put at risk of emotional, behavioral, and other mental health problems.

James Reynolds, Ph.D. testified on behalf of Caryn. Dr. Reynolds performed a psychological evaluation of Caryn and conducted bonding evaluations. Dr. Reynolds noted Caryn's near-term abstinence (while incarcerated), but recognized her risk for relapse during this early stage of remission. Dr. Reynolds also opined that if she were provided with appropriate resources and support, Caryn had the capacity to parent her children.

John's mother —— Sophie's and Molly's grandmother —— testified on John's behalf. Her focus was on her relationship with the girls, which had been truncated following the March 2011 removal.

Judge Gibbons Whipple issued a written opinion finding that the Division's proofs clearly and convincingly satisfied the four-factor test of N.J.S.A. 30:4C-15.1(a). She found Dr. Kanen's and Reynolds's opinions credible. However, she concluded that Dr. Reynolds did not "advocate an appropriate plan of permanency for these children" because it was too tentative and speculative, leaving Sophie and Molly "in limbo." Relying on her assessment of the evidence, together with Dr. Kanen's opinions, Judge Gibbons Whipple concluded, "termination would provide much good to [Sophie] and [Molly], as it will place them in a loving and stable environment and will afford the children the permanency and stability that they deserve and require." Accordingly, the judgment terminating Caryn's and John's parental rights was entered on September 26, 2012. This appeal followed.


"Parents have a constitutional right to raise their children." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). "But that right is not absolute. It is a right tempered by the State's parens patriae responsibility to protect children whose vulnerable lives or psychological well- being may have been harmed or may be seriously endangered by a neglectful or abusive parent." Ibid.

"Terminating parental rights must be used with caution and care, and only in those circumstances in which proof of parental unfitness is clear." Ibid. "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "Presumptions of parental unfitness may not be used in [termination] proceedings . . . and all doubts must be resolved against termination of parental rights." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

When seeking to terminate parental rights, the Division must prove by clear and convincing evidence each of the following four factors:

(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. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(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.
[N.J.S.A. 30:4C-15.1(a).]

See also K.H.O., supra, 161 N.J. at 347-48. Those "four prongs are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." F.M., supra, 211 N.J. at 448 (internal quotation marks and citations omitted).

The scope of our review of the Family Part's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Because of the family courts' special jurisdiction and expertise in family matters, " we accord deference to the trial court's fact-finding and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (l998). We are further obliged to defer to the trial judge's credibility determinations and the judge's "'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J.Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411-12; Pascale v. Pascale, 113 N.J. 20, 33 (l988)), aff'd in part and modified in part, 179 N.J. 264 (2004).

When the trial court's findings of fact are supported by adequate, substantial, and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974) (holding an appellate court is not to disturb the factual findings and legal conclusions of the trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice"). Reversal is required only in those circumstances in which the trial court's findings are "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotation marks omitted). Applying this standard, we discern ample evidence in the record to support the trial judge's conclusion that the children's best interests required termination of Caryn's and John's parental rights.

In like vein, our review of the record reveals no abuse of discretion in the refusal of the trial court to grant defendants' several adjournment requests, and their last request following the receipt of extensive data from the Division. The granting or denial of an adjournment is committed to the discretion of the trial judge. Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568 575 (2003) Our courts have long and consistently held to the general standard of review that an appellate court will reverse for failure to grant an adjournment only if the trial court abused its discretion causing a party a "manifest wrong or injury" State v Hayes 205 N.J. 522 537 (2011) (internal quotation marks omitted); accord Allegro v Afton Village Corp 9 N.J. 156 161 (1952) Defendants have failed to demonstrate that they were surprised or prejudiced by any of the information contained in the Division's belated production most of which was comprised of case notes and medical reports to which the parties had access in other forms.


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