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New Jersey Division of Youth and family Services v. J.A.D.

Superior Court of New Jersey, Appellate Division

May 31, 2013



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket Nos. FL-14-13-12 and FG-14-73-11.

Joseph E. Krakora, Public Defender, attorney for appellant J.A.D. (Alan I. Smith, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant A.R.V. (Michael C. Kazer, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Elizabeth S. Sherwood, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors E.V., D.V., and X.W.D. (Lisa M. Black, Designated Counsel, on the brief).

Before Judges Fisher, Alvarez and Waugh.


Defendants J.A.D. (Jayne) and A.R.V. (Arthur) are the biological parents of twin daughters, E.V. and D.V., who were born on January 15, 2007; they appeal a judgment terminating their parental rights. Jayne also had four other children, whose father is her estranged husband, M.A.D.[2]; she appeals a judgment of kinship legal guardianship regarding one of their four children, X.W.D., who was born on December 18, 1997. These three appeals were consolidated. We now affirm in all respects.

Parents have a constitutionally protected right to the care, custody and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed 'essential, ' 'basic civil rights . . ., ' 'far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558 (1972) (internal citations omitted). "The preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.

The constitutional right to the parental relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, the parent's interest must yield to the State's obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). As a result, the Legislature created a test for determining whether a parent's rights must be terminated in the child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and convincing evidence the following four prongs:

(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 A.W., supra, 103 N.J. at 604-11.

After conducting a four-day trial, Judge Mary Gibbons Whipple rendered a thorough forty-seven page opinion in which she outlined her findings regarding all four prongs of the statutory test and expressed her conclusion that defendants' parental rights to their twin daughters should be terminated. The opinion also set forth the judge's findings and legal grounds for awarding kinship legal guardianship of X.W.D. to his current foster family. In appealing these determinations, defendants mainly contend that the judge's findings were against the weight of the evidence. We find insufficient merit in all defendants' arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

With regard to the first prong, Judge Whipple found that Jayne's home was "chaotic, " and the children were subjected "to unsafe and unsanitary conditions." The judge also found the children were "exposed to criminal activity and were often unsupervised." And, although Jayne acknowledged "her problematic parenting, " the judge determined she was unable to make sufficient progress to improve the children's environment and her parenting skills. Indeed, the judge concluded that if returned to Jayne's care, "these two children would, essentially, have to raise themselves." The judge also determined that the first prong was met with regard to Arthur because of his incarcerations, gang activity, criminal behavior, and drug activity. In considering the second prong, which "relate[s] to and overlap[s]" with the first prong to create "a comprehensive standard that identifies the child's best interests, " K.H.O., supra, 161 N.J. at 348, Judge Whipple again recognized both parents' inability or unwillingness to provide a safe and stable home and provided examples that illustrated why she drew that conclusion. The third prong was readily proven by the fact that, as the judge held, "[f]or about eight years, the Division has provided this family services which included, in-home therapy, individual therapy, parenting skills classes, psychiatric evaluations, forensic evaluations, psychological evaluations, urine screens, substance abuse evaluations, referrals to care management organizations, and visitation[, ] [and] [t]he Division arranged for family team meetings, safety protection plans, family agreements, and case plans." As the judge summarized, "[t]he volume of services provided to this family has been staggering, and there is no evidence the services offered were inconvenient or irrelevant." And, as for the fourth prong, Judge Whipple determined: that the children were bonded to their foster mother, who is committed to adopting; that the foster parent and not defendants is capable of meeting the children's needs, and – in the words of the statute – termination "will not do more harm than good."

Our standard of review is limited. In re Guardianship of 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 competent, relevant and reasonably credible evidence as to offend the interests of justice. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998); N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J.Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004).

Defendants' arguments on appeal do not provide grounds for our intervention. To the contrary, we affirm the termination of defendants' parental rights – and the award of kinship legal guardianship of X.W.D. to his foster parents — substantially for the reasons set forth by Judge Whipple in her comprehensive and thoughtful written opinion.


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