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Division of Child Protection & Permanency v. T.W.J.

Superior Court of New Jersey, Appellate Division

October 9, 2013

T.W.J. and S.M.W., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF TO.M.J., T.W.J., JR., AND TY.M.J., Minors.


Submitted September 10, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-134-12.

Joseph E. Krakora, Public Defender, attorney for appellant T.W.J. (Michele C. Buckley, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant S.M.W. (Dianne Glenn, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Division of Child Protection and Permanency (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors (Karen A. Lodeserto, Designated Counsel, on the brief).

Before Judges Alvarez and Ostrer.


T.W.J. and S.M.W. appeal the July 10, 2012 decision terminating their parental rights to three of their children, To.M.J., born August 2006; T.W.J., Jr., born January 2008; and Ty.M.J., born April 2010. After our review of the extensive record, we affirm essentially for the reasons stated by Judge Octavia Melendez in her thorough, thoughtful, and comprehensive fifty-three-page written opinion. We offer only the following comments.

To place the matter in its proper context, we note initially that T.W.J. and S.M.W. also had a fourth child, now approximately eight years old, who has been adopted by T.W.J.'s sister. S.M.W. has two older children by a different father, who were removed by Ohio Children's Services; her parental rights to those children were previously terminated.

Turning to the circumstances that resulted in this litigation, the family became involved in New Jersey with plaintiff, the Division of Child Protection and Permanency (Division), as a result of referrals beginning in August 2006 related to the couple's use of drugs. Ultimately, the protective services litigation, filed as a result of the referrals, was dismissed after entry of a finding of abuse and neglect, and the issuance of a permanency order. A guardianship complaint was then filed by the Division on December 7, 2011.

Towards the end of August 2009, the children were removed the first time, for approximately eight months. On August 25, 2009, S.M.W. took her children to the home of T.W.J.'s sister and asked her to watch them. S.M.W. told her that T.W.J. had instructed her to drop them off at his sister's house, where he would pick them up. T.W.J.'s sister, who had just returned from work, refused to take the children, went inside her home, and closed the door. A few minutes later, her husband arrived only to find To.M.J., then three years old, and T.W.J., Jr., then eighteen months old, alone on the doorstep. When S.M.W. returned to the house, she was intoxicated. She was arrested and charged with child endangering.

When a caseworker located T.W.J. later that evening, T.W.J.'s words were slurred because he had been drinking. He had no plan for caring for the children, refused to meet with the caseworker and the children at the police station, and would not reveal his address or his whereabouts. At that time, the Division took custody of the children.

In April 2010, the children were returned to their parents' custody subject to an agreement that the Division continue to maintain care and supervision. The Division paid the security deposit for an apartment for the family. In-home services, parenting skills classes, and stress management training were offered to the family. The youngest child, Ty.M.J., was born that month. All three children were finally removed December 8, 2010, however, after S.M.W. contacted the Division to report that she was alone with the children while high on crack cocaine and under the influence of alcohol.

As Judge Melendez stated in her decision, T.W.J. and S.M.W. have a lifetime history of substance abuse that presents an ever-present risk of harm to the children. They are able to partially engage in services, and briefly achieve sobriety, but are unable to remain clean and sober for any length of time when the children are in their care. It was for that reason that the judge concluded the Division had established the parents' inability or unwillingness to eliminate the harm facing the children and their inability to provide the children with a safe and stable home. Given the strong bond between the children and their foster parents, who wish to adopt, delay in termination will only add to the harm the children have already experienced as a result of their parents' intractable substance abuse, and in the mother's case, mental health issues.

The parents presented an expert who opined that the children also shared a bond with them, an opinion with which the Division's expert did not disagree. However, that bond was both too tenuous and insufficient to outweigh the jeopardy which the children would face as a result of their parents' ongoing substance abuse and other issues, the potential harm that would be inflicted upon them by reunification efforts, or by even more delay in permanency.

It is noteworthy that Judge Melendez accorded the parents' expert testimony less weight because the expert opined that there was no difference between secure and insecure attachments, and that, in fact, severing an insecure attachment with a natural parent would be more harmful than severing a secure attachment with a foster parent. Even the expert acknowledged that his view was contrary to that of the leading authority on bonding and attachment.

The Division's expert's opinion was that even if under the best of circumstances the parents were able to maintain sobriety, it would take another year or two before serious consideration could be given to reunification. During that time, the children's immediate and significant needs for permanence and stability would go unmet.

The judge enumerated at great length the many steps the Division attempted to enable reunification and to seek alternative relative resource placements. Drug treatment, parenting training, mental health treatment, financial assistance with housing, and other services were offered. But in the final analysis, none of these services advanced the desired outcome of clean and sober parents able to care and provide for their own children.

As Judge Melendez said, "The children's dire need for permanency outweighs the time it would take for [the children's parents] to [achieve] a position where they [could] meet their children's needs." The harm of severing the children's attachment to their natural parents would not be "severe and enduring." If the bond with the foster parents were ended, however, the harm to the children would be severe and enduring. Termination of parental rights would not do more harm than good.

After our review of the record and the trial judge's opinion, there can be no doubt that the Division met the statutory standard embodied in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The purpose of a termination proceeding is to determine the best interests of a child. In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). The continued enjoyment of the parent-child relationship is the constitutional right of the parent, and stringent standards must be met to terminate parental rights. Ibid. Such decisions must be based on clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599, 617 (1982); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611-12 (1986).

Because the State has a parens patriae responsibility to protect children, New Jersey courts apply a four-part test to balance that responsibility and the rights of parents in determining whether termination of parental rights is appropriate. In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).

(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 four factors "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. "The considerations involved in determining parental unfitness are 'extremely fact sensitive' and require particularized evidence that addresses the specific circumstances of the individual case." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J.Super. 81, 88 (App. Div. 2006) (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)), certif. denied, 190 N.J. 257 (2007).

On appeal, our review is limited to whether the record provides substantial, credible evidence to support the termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We accord great deference to such fact-findings because of the trial court's ability to gauge the credibility of witnesses who testify before it, in addition to the "special expertise in matters related to the family" possessed by those judges. F.M., supra, 211 N.J. at 448 (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). A "cold record . . . can never adequately convey the actual happenings in a courtroom." F.M., supra, 211 N.J. at 448. A reviewing court "will not overturn a family court's factfindings unless they are so 'wide of the mark' that our intervention is necessary to correct an injustice." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). This record entirely supports the trial judge's conclusion that the parents' ongoing substance abuse problems, mental health problems, unstable housing and employment, are unlikely to improve within the time frame the children need.

Here, parents and children shared a bond. Unfortunately, that bond was not sufficient to motivate the parents to achieve the sobriety and stability necessary for them to provide their children with a nurturing and safe home environment. Although the children will no doubt experience a loss as a result of the termination of parental rights, it is a loss that will do them less harm than would a return to their family home. The substantial and credible evidence in this case supports termination of parental rights.


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