DCPP VS. S.W. AND R.D., IN THE MATTER OF THE GUARDIANSHIP OF A.D. (FG-02-0045-16, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)(CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 31, 2018
• Docket: A-4414-16T2 /A-4416-16T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 NOS. A-4414-16T2 A-4416-16T2

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

S.W. and R.D.,

Defendants-Appellants. __________________________________

IN THE MATTER OF THE GUARDIANSHIP OF A.D., a Minor. __________________________________

Submitted May 29, 2018 – Decided July 31, 2018

Before Judges Accurso, O'Connor and Vernoia.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-0045-16.

Joseph E. Krakora, Public Defender, attorney for appellant S.W. (Deric D. Wu, Assistant Deputy Public Defender, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant R.D. (Britt J. Salmon-Dhawan, Designated Counsel, on the briefs). Gurbir S. Grewal, Attorney General, attorney for respondent (Jason W. Rockwell, Assistant Attorney General, of counsel; Julie B. Colonna, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd S. Wilson, Designated Counsel, on the brief).

PER CURIAM

S.W. and R.D. are the biological parents of A.D., who was

born in December 2014. In February 2016, the New Jersey Division

of Child Protection and Permanency (the Division) filed a

guardianship complaint naming S.W. and R.D. as defendants. During

a seven-day trial, Judge William R. DeLorenzo, Jr., heard testimony

from four witnesses presented by the Division, and S.W. The judge

issued a detailed written opinion supporting his entry of a

judgment terminating defendants' parental rights and awarding the

Division guardianship of A.D. Defendants filed separate appeals

that were calendared back-to-back, and which we have consolidated

for purposes of this opinion.

S.W. presents the following arguments for our consideration:

POINT I

The Theory Advanced by DCPP and Its Experts that S.W. Was in Denial About Her Need for Services is Contradicted by the Record[.]

2 A-4414-16T2 POINT II

The Court's Reliance on S.W.'s Previous Arrests and Expert Opinions About S.W.'s "Aggressive Attitude" Constituted the Use of Propensity Evidence to Infer a Risk of Harm[.]

POINT III

Dr. Dyer's Opinions Were Largely Unsupported by the Record or Even His Observations[.]

POINT IV

Termination of Parental Rights Will Do More Harm Than Good Because the Harm Articulated in the Decision was Speculative While the Bond Between A.D. and Her Mother Was Well Documented[.]

R.D. offers the following arguments:

LEGAL ARGUMENT

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE TRIAL COURT ERRED IN FINDING THAT THREE OF THE FOUR PRONGS OF THE N.J.S.A. 30:4C-15.1(a) BEST INTERESTS TEST FOR THE TERMINATION OF R.D.'S PARENTAL RIGHTS HAD BEEN MET BY CLEAR AND CONVINCING EVIDENCE[.]

THE TRIAL COURT ERRED IN FINDING THAT THE DIVISION SATISFIED THE FIRST PRONG OF THE BEST INTERESTS TEST BECAUSE THE DIVISION DID NOT PROVE THAT R.D.'S PARENTAL RELATIONSHIP HARMED A.D. OR PUT HER AT CONTINUING RISK OF HARM[.]

POINT II

THE TRIAL COURT'S RULING ON THE SECOND PRONG SHOULD BE REVERSED BECAUSE IT WAS BASED ON THE SAME FINDINGS AND LEGAL CONCLUSIONS AS THE UNFOUNDED FIRST-PRONG RULING, AND BECAUSE IN

3 A-4414-16T2 ADDITION THE TRIAL COURT ERRONEOUSLY DECIDED THAT IT WAS FORESEEABLE THAT R.D. WAS UNABLE OR UNWILLING TO OVERCOME POTENTIAL HARM TO A.D.

R.D. IS ENTITLED TO A REVERSAL BECAUSE THE EVIDENCE WHICH WAS PRESENTED DID NOT SUPPORT A FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD[.]

Our review of a trial court order terminating parental rights

is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.

595, 605 (2007). "A Family Part's decision to terminate parental

rights will not be disturbed when there is substantial credible

evidence in the record to support the court's findings." N.J.

Div. of Child Prot. & Permanency v. K.T.D., 439 N.J. Super. 363,

368 (App. Div. 2015) (citing N.J. Div. of Youth & Family Servs.

v. F.M., 211 N.J. 420, 448 (2012)). "We accord deference to

factfindings of the family court because it has the superior

ability to gauge the credibility of the witnesses who testify

before it and because it possesses special expertise in matters

related to the family." F.M., 211 N.J. at 448 (citing Cesare v.

Cesare, 154 N.J. 394, 413 (1998)). This enhanced deference is

particularly appropriate where the court's findings are founded

upon the credibility of the witnesses' testimony. N.J. Div. of

Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div.

4 A-4414-16T2 2005) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,

65 N.J. 474, 484 (1974)).

"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." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.

88, 104 (2008) (quoting G.L., 191 N.J. at 605). No deference is

given to the trial court's "interpretation of the law," which we

review de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012) (citing

N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183

(2010); Balsamides v. Protameen Chems., 160 N.J. 352, 372 (1999)).

As Judge DeLorenzo correctly recognized, a parent has a

constitutionally protected right "to enjoy a relationship with his

or her child." In re Guardianship of K.H.O., 161 N.J. 337, 346

(1999). That right, however, "is not absolute," and is limited

"by the State's parens patriae responsibility to protect children

whose vulnerable lives or psychological well-being may have been

harmed or may be seriously endangered by a neglectful or abusive

parent." F.M., 211 N.J. at 447 (citing E.P., 196 N.J. at 102).

A parent's interest must, at times, yield to the State's obligation

to protect children from harm. N.J. Div. of Youth & Family Servs.

v. G.M., 198 N.J. 382, 397 (2009).

5 A-4414-16T2 When terminating parental rights, the court must consider the

"best interests of the child." K.H.O., 161 N.J. at 347. The

Division's petition to terminate parental rights may only be

granted if the following four prongs enumerated in N.J.S.A. 30:4C-

15.1(a) are established by clear and convincing evidence:

(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).]

"The four criteria enumerated in the best interests standard 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., 161 N.J. at 348. "[T]he

cornerstone of the inquiry [under N.J.S.A. 30:4C-15.1(a)] is not

6 A-4414-16T2 whether the biological parents are fit but whether they can cease

causing their child harm." In re Guardianship of J.C., 129 N.J.

1, 10 (1992) (citing N.J. Div. of Youth & Family Servs. v. A.W.,

103 N.J. 591, 607 (1986)).

S.W. argues there is insufficient evidence supporting the

court's findings on the second, third and fourth prongs of the

best interests standard. R.D. contends there is insufficient

evidence supporting the court's determination on each prong. We

are not persuaded. Based on our review of the record, we are

convinced Judge DeLorenzo conducted the required fact-sensitive

analysis of the statutory factors as applied to each defendant,

see K.H.O., 161 N.J. at 348, and his findings are adequately

supported by substantial credible evidence in the record, see

F.M., 211 N.J. at 448. We affirm substantially for the reasons

set forth in his well-reasoned 111-page written decision.

Affirmed.

7 A-4414-16T2