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New Jersey Division of Youth and Family Services v. J.V.

Superior Court of New Jersey, Appellate Division

May 30, 2013

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, [1] Plaintiff-Respondent,
v.
J.V., SR., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.V., JR., a Minor.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 22, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-85-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.V., Jr. (Sean Lardner, Designated Counsel, on the brief).

Before Judges Graves, Ashrafi, and Espinosa.

PER CURIAM

Defendant J.V., Sr., (J.V.) appeals from a judgment entered on February 22, 2012, terminating his parental rights to his son, J.V., Jr., who was born on June 16, 2009. The child has resided in the home of his maternal grandmother, D.A., and maternal grandfather, A.A., since birth. D.J., the child's mother, surrendered her parental rights to J.V., Jr., to her parents during a case management conference on July 13, 2011. The Law Guardian for the child supports the termination of J.V.'s parental rights.

On appeal, J.V. presents the following arguments:
POINT I
THE TRIAL COURT ERRED IN TERMINATING THE FATHER'S PARENTAL RIGHTS WHERE DYFS FAILED TO ESTABLISH ALL OF THE ELEMENTS OF N.J.S.A. 30:4C-15.1 BY CLEAR AND CONVINCING EVIDENCE.
A. THE TRIAL COURT ERRED IN FINDING THAT DYFS HAD DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE, THAT THE SAFETY, HEALTH OR DEVELOPMENT OF THE CHILD HAD BEEN OR WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP WITH THE FATHER.
B. THE TRIAL COURT ERRED IN FINDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE FATHER IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HIS CHILD.
C. THE TRIAL COURT ERRED IN FINDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT REASONABLE EFFORTS TO PROVIDE SERVICES TO THE FATHER WERE MADE.
D. THE TRIAL COURT ERRED IN FAILING TO ADEQUATELY CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.

We conclude from our review of the record and the applicable law that these arguments are without merit, Rule 2:11-3(e)(1)(E), and only require the following comments.

Our Legislature has recognized the importance of strengthening and preserving the integrity of family life, but it has also recognized that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). Pursuant to the best-interests-of-the-child standard, initially formulated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified in N.J.S.A. 30:4C-15.1(a), the State must establish each of the following requirements by clear and convincing evidence before parental rights may be severed:

(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 division 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).]

These requirements are neither discrete nor separate. They "overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The considerations involved in determining parental fitness are "extremely fact sensitive and require particularized evidence that address the specific circumstances in the given case." Ibid. (internal quotation marks and citation omitted). "[T]he purpose of termination is always to effectuate the best interests of the child, not the punishment of the parent." Id. at 350.

In this case, the circumstances preceding the filing of the guardianship complaint are accurately set forth in the trial court's sixty-eight page written decision and need not be repeated here. During the guardianship trial, which took place on January 4, 23, and 24, 2012, the Division presented testimony from Kristy Conway, a family service specialist, and Dr. Robert T. Miller, a clinical psychologist. In addition, J.V. testified on his own behalf, but he did not present any additional testimony from other witnesses.

Based on his initial evaluation of J.V. in December 2009, Dr. Miller reported:

[J.V.] demonstrated during this evaluation that he has difficulty regulating his own affect and he presented as an angry man who rationalizes his negative behavior toward others. [J.V.] described a history of behavioral problems that began in childhood. He has been exposed to significant physical abuse as a child and maternal abandonment. [J.V.] described behavioral problems resulting in his placement in a group home during his adolescence and disrupted education development. He described involvement in violence toward women in adolescence. [J.V.] has described a history of arrests including arrests for possession of cocaine, domestic violence, assault of a police officer, and grand larceny. He described [a] history of arrest and incarceration beginning in adolescence and continuing until 2007 when he most recently finished his parole. Based on the findings of current psychological testing and his presentation during this evaluation it is apparent that [J.V.] has demonstrated an impulse control problem, history of violence and aggressive behavior beginning in childhood to the present time. It is probable that [J.V.] is lacking in emotional insight into his own functioning and has demonstrated poor judgment with impulsive behavior. His current functioning presents a significant risk factor for [D.J.] and the children in this case.
It was apparent from the description by both the biological parents that [J.V.] intended to take his infant son in a cab without appropriate safety measures. [J.V.] acknowledged arriving at the home of the maternal grandmother intoxicated from use of marijuana and alcohol. However, he provided inconsistent statements that indicated he attempted to manipulate the outcome of this evaluation.

At the Division's request, Dr. Miller conducted bonding evaluations and another psychological evaluation of J.V. in December 2011. In a report dated December 27, 2011, Dr. Miller noted that J.V. had been unwilling or unable to comply with the Division's "recommendations for substance abuse treatment, domestic violence counseling, and individual psychotherapy." Based on his observations and evaluations, Dr. Miller's recommendations were as follows:

[J.V., Jr., ] should remain in the home of the maternal grandparents. Every effort should be made to help [J.V., Jr., ] achieve needed permanency through adoption if made available by the court. [J.V.] has demonstrated significant parental deficits that have not been remediated. [J.V.] has demonstrated unwillingness or inability to remediate parental deficits and should not be considered as a viable caretaker.
[J.V., Jr., ] has demonstrated secure attachment with the maternal grandparents. Significant psychological and emotional harm would result if [J.V., Jr., ] was separated from his maternal grandparents. Separation from the maternal grandparents would cause significant harm to the child's social and emotional development, his capacity to develop healthy secure future relationships, and undermine his current resilience. [J.V.] has not demonstrated the capacity for empathy to help [J.V., Jr., ] overcome expected significant loss and psychological harm if [J.V., Jr., ] is separated from the maternal grandparents.

The trial court found that Dr. Miller was a credible witness and that his testimony was consistent with his reports. The court also found his testimony was "reasonable and logical" and "inherently believable." In addition, after carefully considering all of the evidence adduced at trial, the court concluded the Division had proven each of the four statutory requirements under N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.

The scope of our review is limited. We must determine whether the trial court's findings are "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort Inc v Investors Ins Co of Am 65 N.J. 474 484 (1974)) "We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family" N.J. Div of Youth & Family Servs v FM 211 N.J. 420 448 (2012)

In the present matter we conclude from our independent review of the record that the trial court's findings and conclusions are supported by clear and convincing evidence and that the matter was correctly decided Accordingly the judgment terminating JV's parental rights to JV Jr is affirmed substantially for the reasons stated by Judge John A Conte in his comprehensive written decision on February 22 2012

Affirmed


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