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

Superior Court of New Jersey, Appellate Division

September 18, 2013

J.A.A., Defendant-Appellant, and M.L.M., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF N.A. AND N.D.A., Minors.


Submitted September 10, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-21-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Larry Leung, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian for the minors N.A. and N.D.A. (Todd Wilson, Designated Counsel, on the brief).

Before Judges Reisner and Ostrer.


Defendant J.A.A. appeals from an August 31, 2012 order terminating his parental rights to his children. We affirm, substantially for the reasons set forth in the written opinion issued by Judge Mary K. White on August 30, 2012.


Judge White's opinion sets forth the facts in detail. To summarize, defendant and M.L.M. have two children, N.D.A. (Norman), born in 2006, and N.A. (Nancy), [1] born in 2009. The Division of Child Protection and Permanency (Division)[2] became involved with the family due to M.L.M.'s persistent substance abuse issues. Because of M.L.M.'s drug problems, and a domestic violence restraining order entered against defendant, Norman was placed in foster care in 2008.[3] In 2009, Nancy was born with cocaine in her system and was immediately placed in foster care. Despite extensive opportunities to address her drug addiction, M.L.M. was unable to do so, and she eventually made an identified surrender of her parental rights in favor of the foster parents with whom both children were living.

Although defendant initially showed some interest in the children, he has not visited them since 2010. He failed to stay in contact with his assigned counsel and did not attend hearings in the case for an extended period of time. When he finally appeared before Judge White on August 1, 2011, he admitted that he had absented himself from the proceedings for a period of "about two years." He also failed to cooperate with scheduled drug tests, did not appear for a scheduled psychological evaluation, and did not take advantage of various services the Division offered to him. Defendant was incarcerated during a portion of the trial and appeared by writ from the county jail. When he was released, he failed to appear for the remainder of the trial.

During the years that the children were in foster care, defendant's mother, R.A., filed and then abandoned a series of complaints seeking permanent custody. At a pre-trial hearing before Judge White on August 1, 2011, R.A. explained that she abandoned each application based on repeated assurances from M.L.M. that she was about to regain custody of the children. In response to Judge White's questioning, R.A. admitted that she never presented herself to the Division as a potential foster home placement for the children.[4] A Division witness later provided testimony confirming that information, and confirming that defendant never asked the Division to evaluate his mother's home as a possible placement for his children.

In her August 1, 2011 appearance, R.A. claimed she did not know that, in 1987, the Division had substantiated an accusation of child abuse made against her and that she had been ruled out as a possible placement for the children on that basis. Judge White directed that the Division immediately serve her with "a new substantiation letter" and indicated on the record that R.A. would then have the right to file an administrative appeal of the 1987 child abuse finding.

However, by the time R.A. appeared before Judge White on August 1, 2011, to assert her interest in caring for Nancy and Norman, the children had been living with a foster family for several years. Nancy had lived with the foster parents since birth, and they were the only family she knew. Neither child had an ongoing relationship with defendant, due to his lengthy absence from their lives. In 2011, the Division sent R.A. a letter advising her that she was ruled out as a caretaker because the children had bonded with their foster parents. Defendant did not present testimony from R.A. at the guardianship trial.[5]

According to the State's expert, the children had developed a strong and healthy attachment to the foster parents and would suffer "serious and enduring emotional harm" if that attachment were disrupted. The expert opined that they would suffer no such harm if defendant's parental rights were terminated. He also testified that the children had a strong need for permanency, and that the psychological risks to the children of losing their placement with the foster parents would not be offset by the benefit of a possible placement with a relative such as R.A. The foster parents were committed to adopting the children.

In her comprehensive opinion, Judge White found that the Division had satisfied the four prongs of the best interests test, as set forth in N.J.S.A. 30:4C-15.1a(1) to -15.1a(4).


In striking a balance between a parent's constitutional rights and a child's fundamental needs, courts employ the four-part guardianship test articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified at N.J.S.A. 30:4C-15.1a:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:
(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-15.1a.]

In their application, the four factors above "'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.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).

In reviewing Judge White's decision, we have a very limited role. We must defer to her factual determinations unless those findings "'went so wide of the mark that a mistake must have been made.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted). We will not disturb the Family Part's factual findings so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J.Super. 172, 188 (App. Div. 1993) (citation omitted). And we owe special deference to the trial judge's expertise in handling family issues. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).

As in the trial court, defendant's primary argument on appeal is that the Division should have placed the children with R.A. and improperly ruled her out as a placement. Based on the record presented to us, we reject this contention. R.A. was, at best, ambivalent about her interest in caring for the children. R.A. admittedly never asked the Division to evaluate her as a foster care placement, and defendant never asked the Division to place his children with her. She had a prior substantiated finding of child abuse, and defendant was living with her. Most importantly, by the time of the guardianship trial, the children had been living with the foster family for several years, had bonded with them, and would have suffered severe and lasting psychological harm if they were separated from the foster parents.

Defendant's additional appellate contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). As previously noted, we affirm for the reasons stated in Judge White's opinion, which is amply supported by the record. R. 2:11-3(e)(1)(A).


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