DCPP VS. H.D.C. AND A.A.-S.W., IN THE MATTER OF THE GUARDIANSHIP OF A.J.C.-W. AND A.R.C.-W. (FG-07-0174-17, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 3, 2019
• Docket: A-2868-17T1
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2868-17T1

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

H.D.C.,

Defendant-Appellant,

and

A.A.-S.W.,

Defendant. ____________________________

IN THE MATTER OF THE GUARDIANSHIP OF A.J.C.-W. and A.R.C.-W.,

Minors. ____________________________

Submitted June 4, 2019 – Decided July 3, 2019

Before Judges Messano and Gooden Brown. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0174-17.

Joseph E. Krakora, Public Defender, attorney for appellant (Marc R. Ruby, Designated Counsel, on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent (Jason Wade Rockwell, Assistant Attorney General, of counsel; Merav Lichtenstein, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (David Ben Valentin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant H.D.C. appeals the Family Part's February 14, 2018 order

terminating her parental rights to two of her children, A.J.C.-W. (Avery), born

in 2012, and A.R.C.-W. (Anna), born in 2013. 1 During the course of the

litigation, the children's father, A.A.-S.W. (Andrew), entered into a voluntary

identified surrender of his parental rights in favor of B.W. (Barbara), the

children's paternal grandmother, with whom they were placed after removal

1 We use initials and pseudonyms to protect the confidentiality of those involved pursuant to Rule 1:38-3(d)(12).

A-2868-17T1 2 from defendant's and Andrew's care. Defendant's two other older children are

not subjects of this appeal. 2

Defendant contends that the Division of Child Protection and Permanency

(the Division) failed to prove the second and fourth prongs of the statutory best-

interests-of-the-child test, N.J.S.A. 30:4C-15.1(a), which require proof by clear

and convincing evidence that:

(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;

....

(4) Termination of parental rights will not do more harm than good.

The Division and the children's Law Guardian urge us to affirm the judgment.

We have considered defendant's arguments in light of the record and

applicable legal standards. We affirm.

2 Defendant surrendered her parental rights to one of the older children during the pendency of the litigation, and an order of kinship legal guardianship was entered as to the other child. A-2868-17T1 3 I.

The Division had been involved with the family for many years prior to

the January 2014 referral that sparked the removal of all four children from

defendant's care. Avery sustained a burn on his collarbone and shoulder, which,

investigation revealed, defendant's older children caused with a cigarette lighter.

Defendant failed to seek any medical treatment for Avery, and school authorities

indicated the two older children had missed many school days. The family's

home was dirty and unkempt; it lacked a refrigerator and stove; the children

slept on mattresses without sheets. The Division executed an emergency

removal and eventually placed Avery and Anna with Barbara, where they

remained throughout the litigation. Barbara expressed a desire to adopt both of

them.

The Division proposed and the court accepted the permanency plan of

termination with adoption in December 2014, after defendant's initial

participation in substance abuse treatment and counseling was unsuccessful.

However, in March 2016, after defendant demonstrated completion of other

services, obtained employment and presented a plan to provide a stable

residence for the children, the court approved a revised plan for reunification.

Defendant was granted unsupervised visitation with Avery and Anna.

A-2868-17T1 4 However, defendant repeatedly failed to attend psychological therapy

sessions, leading to termination of those services. In late September 2016,

defendant relocated to New York, where she was employed and resided with her

partner. She failed to contact the Division after her relocation. In October, the

Division asked the court to suspend defendant's unsupervised visitation. Due to

defendant's relocation, from September 2016 until January 2017, defendant only

saw the children once.

Upon her relocation to New Jersey, the Division again referred defendant

for individual therapy, but she failed to comply, claiming it was inconvenient to

go to the doctor's office. In January 2017, the court found that defendant failed

to: comply with her recommended services; remain in contact with the Division;

and visit her children while she was in New York. Accordingly, the court

modified the permanency plan again, from reunification to termination.

At the guardianship trial before Judge Linda Lordi Cavanaugh, which

commenced in December 2017, the Division offered the testimony of its

caseworker, Angel Brown, and Dr. Mark David Singer, its expert. Judge

Cavanaugh ruled on the admission of certain documentary evidence, which

largely recounts the details set forth above.

A-2868-17T1 5 Although defendant did not testify, the judge admitted documentary

evidence purporting to be recent paystubs for defendant and her partner, and a

written receipt of partial payment for an apartment in defendant's and her

partner's name.

II.

A.

We set forth the well-known standards that guide our review. The trial

court's findings will be upheld if they are "supported by adequate, substantial,

and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J.

527, 552 (2014). We defer to the factual findings of the trial judge, who had

"the opportunity to make first-hand credibility judgments about the

witnesses . . . [and] ha[d] a 'feel of the case' that can never be realized by a

review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.

88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.

261, 293 (2007)). We accord even greater deference to the Family Part's factual

findings because of its "special jurisdiction and expertise in family matters."

N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010)

(quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

A-2868-17T1 6 "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide

of the mark' should an appellate court intervene and make its own findings to

ensure that there is not a denial of justice." E.P., 196 N.J. at 104 (quoting N.J.

Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). "A trial

court's interpretation of the law and the legal consequences that flow from

established facts are not entitled to any special deference." R.G., 217 N.J. at

552-53 (quoting Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J.

366, 378 (1995)).

"The focus of a termination-of-parental-rights hearing is the best interests

of the child." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447

(2012) (citing N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 110

(2011)). The four statutory prongs "are neither discrete nor separate. They

overlap to provide a composite picture of what may be necessary to advance the

best interests of the children." M.M., 189 N.J. at 280 (quoting N.J. Div. of Youth

& Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)).

B.

Under N.J.S.A. 30:4C-15.1(a)(2), "the inquiry centers on whether the

parent is able to remove the danger facing the child." F.M., 211 N.J. at 451

(citing In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999)). "Prong two

A-2868-17T1 7 may also be satisfied if 'the child will suffer substantially from a lack of . . . a

permanent placement and from the disruption of [the] bond with foster parents.'"

Ibid. (quoting K.H.O., 161 N.J. at 363); see also N.J. Div. of Youth & Family

Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004) ("[T]he . . . statute[]

reflect[s] reforms acknowledging the need for permanency of placements by

placing limits on the time for a birth parent to correct conditions in anticipation

of reuniting with the child.").

Defendant contends that the Division failed to prove prong two because

she did not abandon her children during a "three[-]month furlough" in New

York, but rather was seeking appropriate employment in an effort to provide

them with financial security. Defendant contends that by the time of trial, she

had established a stable relationship with her partner, had adequate housing for

herself and the children, and was gainfully employed.

However, Judge Cavanaugh's factual findings detail defendant's failure to

comply with services during the months that preceded the "furlough."

Defendant missed visitations with the children and failed to attend "numerous

individual therapy appointments." Noting the litigation had "been ongoing since

2014," the judge concluded that defendant was "well aware of what was required

of her . . . to achieve [re-]unification." Noting that defendant failed to secure

A-2868-17T1 8 suitable housing for the children until "the end of 2017," only "after the children

had been in placement almost four years . . . ."

Judge Cavanaugh also considered the expert testimony of Dr. Singer who

had evaluated defendant and conducted bonding evaluations. The judge credited

the doctor's conclusion that defendant "was simply unable or unwilling to put

the needs of the children before her own[,]" and the children would "experience

serious and enduring emotional and psychological harm" if they lost their

relationship with Barbara. See F.M., 211 N.J. at 451.

In the end, defendant's efforts to address the initial circumstances that

harmed her children, however genuine, came too late. Avery and Anna have the

right to permanency, and defendant has no right to delay that security while the

Division, her children, and the court wait to see if she succeeds.

C.

The fourth prong serves as a "'fail-safe' inquiry guarding against an

inappropriate or premature termination of parental rights." Id. at 453 (quoting

G.L., 191 N.J. at 609). "The question ultimately is not whether a biological

mother or father is a worthy parent, but whether a child's interest will best be

served by completely terminating the child's relationship with th[e] parent."

E.P., 196 N.J. at 108. Typically, "the [Division] should offer testimony of a

A-2868-17T1 9 well[-]qualified expert who has had full opportunity to make a comprehensive,

objective, and informed evaluation of the child's relationship with both the

natural parents and the foster parents." F.M., 211 N.J. at 453 (quoting M.M.,

189 N.J. at 281).

Defendant argues the judge made findings regarding the bonds between

her and the children based upon a "stale, and admittedly chaotic, [Division ]-

proffered bonding evaluation," not upon competent expert testimony. We

disagree.

Judge Kavanaugh found that with the exception of "the few overnight

visits that occurred as part of the failed attempt at reunification," the children

had been in Barbara's care for approximately four years, and Barbara had met

their needs. Defendant, on the other hand, "shows affection to her children[,]"

but "[h]er behavior at the visits . . . cannot equate to the provision of care, nurture

and stability [Barbara] has shown every day for four years."

The judge credited Dr. Singer's observations during the bonding

evaluations that the children were "more physically aggressive and . . . difficult

to manage when they were with [defendant,]" and "expressed anger . . . [and]

distrust [of] her." The judge accepted the doctor's conclusion that severing the

children's relationship with defendant would not result in "significant and

A-2868-17T1 10 enduring harm" and Barbara would be able to mitigate whatever harm occurred.

Rupturing their bond with Barbara, however, would cause "feelings of loss,

insecurity and low self-esteem" in the children.

We defer to the trial judge's factual findings and evaluation of the expert

testimony, where she had the opportunity to assess Dr. Singer's credibility,

including the factual underpinnings of his opinions. Critically, while Dr. Singer

had conducted the evaluations nearly nine months earlier, when confronted with

developments in defendant's life since, he stated his opinions had not changed.

In sum, our review leads us to conclude that Judge Kavanaugh's findings

and conclusions are supported by the substantial, credible evidence in the record,

and the Division carried its burden of proof as to the second and fourth prongs

of N.J.S.A. 30:4C-15.1(a).

Affirmed.

A-2868-17T1 11