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

Superior Court of New Jersey, Appellate Division

June 10, 2013

H.E., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF Z.B. and E.B., Minors.


Submitted June 4, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-39-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Eric R. Foley, 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; Joan E. Karn, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Elahna Strom Weinflash, Assistant Deputy Public Defender, on the brief).

Before Judges Fisher, Alvarez and Waugh.


Defendant H.E. appeals the termination of her parental rights to two children, Zebulon and Elvira, [2] who were born in 2008 and 2010, respectively, arguing that the trial judge's findings were against the weight of the evidence. We find no merit in defendant's arguments and affirm.

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). To effectuate these concerns, 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 two-day trial, Judge Mary Gibbons Whipple rendered a thorough thirty-five page opinion in which she outlined her findings regarding all four prongs of the statutory test and expressed her conclusion that defendant's parental rights to the two children should be terminated.[3]

With regard to the first prong, Judge Whipple found by evidence she found clear and convincing that Elvira was admitted to the hospital on August 3, 2010, and found to have sustained subdural hemorrhages, retinal hemorrhages, respiratory distress, and multiple fractures. The judge found the Division's medical expert credible with regard to the expert's determination that the child's injuries occurred at different times, indicating "multiple incidents of non-accidental trauma." The judge also relied on, among other things, defendant's statement to police that was videotaped and played during trial; in that statement, defendant admitted she shook the child out of frustration.

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 the non-accidental nature of Elvira's multiple injuries and defendant's "fail[ure] to adequately engage in Division services." The judge relied on the Division's psychological expert, who testified, as the judge summarized, that defendant "is incapable of placing the needs of the children before her own and there is no indication that she has any sort of positive prognosis for significant change within the foreseeable future." And the judge found that defendant has failed to eliminate the harm she presents to the children by doing "nothing after the placement of [the children] in foster care to create an environment in which these children could be returned to her care."

Judge Whipple determined that the third prong was readily proven by the Division's offering of "a myriad of services, including, but not limited to, referrals for substance abuse evaluations, psychological and psychiatric evaluations, parenting and Division-supervised visitation, and referrals for individual therapy."

And, the judge lastly concluded that termination will not do more harm than good, citing, among other things, that Elvira's "placement with any other caretaker besides the current foster home, would be extremely destructive for her progress and would result in a devastating loss for her." The judge also determined that Zebulon's foster parents are his "central parental love objects, and if removed, [Zebulon] would suffer 'a traumatic loss that would have a negative impact on his self-esteem, basic trust, and capacity to attach to new caretakers.'"

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 defendant's parental rights substantially for the reasons set forth by Judge Whipple in her comprehensive and thoughtful written opinion.


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