Opinion
DOCKET NO. A-5143-14T3
04-18-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. G.G., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF C.F., A.D.G., K.J.F., S.C.H., and T.L.W., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Theodore J. Baker, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Erin Berman, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.D.G. (Randi Mandelbaum, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Rothstadt and Currier. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-243-14. Joseph E. Krakora, Public Defender, attorney for appellant (Theodore J. Baker, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Erin Berman, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.D.G. (Randi Mandelbaum, Designated Counsel, on the brief). PER CURIAM
Defendant G.G. (Gerry) appeals from the guardianship judgment and order terminating his parental rights. Gerry contends that plaintiff, Division of Child Protection and Permanency (Division), failed to prove at the guardianship trial that it provided the services to which he was entitled, including facilitating visitation and reunification with his child. After reviewing the record in light of the contentions advanced on appeal and the applicable legal principles, we affirm.
We use pseudonyms to refer to the individuals in this case for the purposes of confidentiality and clarity.
The facts as found by the trial judge can be summarized as follows. Gerry and V.H. (Vanessa) are the biological parents of A.D.G. (Ann), born in 2002. Vanessa has four other children, who are Ann's half-sisters. The Division became involved with Vanessa when it received a referral in March 2012 that she and her husband, K.W., had been arrested and charged after a loaded weapon and various drugs had been found in their home where the children also resided. Ann and her sisters were placed into two separate foster homes after an emergency Dodd removal and the Division was awarded care, custody and supervision of Ann and her sisters pursuant to a hearing following the presentation of an order to show cause and verified complaint.
Vanessa surrendered her rights to all five of her children prior to the commencement of the guardianship trial.
A Dodd removal refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82.
Following the hearing on the order to show cause, Gerry advised the Division that he was the father of Ann and her sister, S.C.H. (Susan). He did not offer himself as a resource and was agreeable with the proposed placement of the girls with Vanessa's relative, Tina. The Division began to facilitate visitation with the family as a group and services were provided to the children, Vanessa and Gerry. Although Tina made Ann and the other children available every weekend, Gerry only attended visitation twice, once in April and once in May.
At a hearing in July 2012, at which Gerry was not present, Vanessa revealed that she did not believe Gerry was the father of either Ann or Susan. Gerry did not attend the next several court hearings, and in April 2013, the judge ordered a paternity test that revealed Gerry was the father of Ann, but not Susan.
At a family team meeting in March 2013, Tina advised Vanessa and Gerry that she wished to adopt Ann and three of her sisters. Gerry advised he was not able to either care or plan for Ann, but nonetheless expressed the desire to have a say in her life and education. In October 2013, although he had not seen Ann in eighteen months, Gerry requested visitation with her. Because Ann was reluctant to see Gerry, the judge ordered her to attend therapy and upon the therapist's indication it was appropriate for visitation to begin, the Division would facilitate their meeting. After several months of therapy, Ann agreed to visit with Gerry in March 2014. He had not seen her since 2012.
The fifth child, born in May 2012, had been placed in a different resource home.
In July 2014, Gerry advised for the first time that he wanted Ann to live with him. He had not seen her in several months and the caseworker stated she would set up therapeutic visitation and an appointment to observe his home. Gerry did not make himself available for the home inspection. Although over the next several months Gerry came to Ann's home several times, the visits were short. Ann remained firm that she was not comfortable with the visits and did not want to continue them. Gerry stopped the visits, stating he did not want to force Ann to meet with him.
The last visit was in November 2014.
During the guardianship trial in June 2015, the Division caseworker testified Ann was consistent in her statements that she did not want to have visits with Gerry. Although Gerry told the caseworker he had been involved with Ann her entire life, Ann denied having any memories of Gerry as a young child and stated she just learned he was her father eighteen months earlier.
As to Ann's current placement, the caseworker described all of the girls as doing very well. She stated: "[T]he four girls are very close together. . . . They're very loving towards [Tina] and [Tina] is very loving towards them. They have a very structured setting in the household." The caseworker testified that Ann wished to be adopted by Tina.
Asked about the relationship between Ann and Gerry, the caseworker testified that Gerry has never inquired as to Ann's well-being, how she does in school, attempted to learn about her interests nor sent a birthday card or gift.
A psychologist, Eric Kirschner, Ph.D., testified that he completed a psychological evaluation of Gerry as well as a bonding evaluation between Gerry and Ann. Kirschner noted that Gerry characterized himself as "a father figure" to Ann, whereas she "claimed to have a minimal recollection of him as someone being around . . . . [She] didn't have really anything of a tie or an association or an emotional connection with him."
Kirschner noted that when Ann arrived for the bonding evaluation she chose a seat as far away as possible from Gerry. These observations led the expert to conclude that Ann
did not perceive there to be a bond between the two of them. She did not perceive [Gerry] as an attachment figure, and that just from her standpoint the relationship was certainly not a strong one, not one that she was invested in pursuing and one that she did not seem to value very much.Kirschner indicated that Ann had expressed her desire to remain with her sisters in their current home with no interest in being placed in Gerry's care, nor even pursuing a future relationship with him.
The doctor opined that Tina represented a psychological parent. He concluded that it was in Ann's best interests to remain in the care of Tina and to be with her sisters on a permanent basis, whereas removing her from her current placement would cause her to experience "great," "enduring," and "severe" harm.
A second psychologist, Leslie Williams, Ph.D., also testified about Gerry and Ann's psychological status and the nature of their bond. Williams opined that Gerry was not capable of providing adequate parenting to Ann; that he was primarily focused on himself and had "abdicate[d] his fatherly responsibilities years ago." He found Ann and her sisters were very comfortable with Tina and that she served as a psychological parent to them.
Williams testified that in his interview of Ann, she told him that Gerry "had never been actively involved in her life." She was "very firm about not wanting to have any contact at all with [Gerry]." He also opined that to remove Ann from Tina's care would cause a "severe and enduring" harm, whereas terminating a relationship with Gerry would not do the child any harm.
In his testimony, Gerry described himself as Ann's father. He stated that from her birth until age five she stayed with him every weekend. From ages five to ten, he stated that he would see Ann every other weekend. After Vanessa and the girls moved to South Carolina in 2010, he did not see Ann again until 2012 when they returned to New Jersey.
His testimony as to these events was inconsistent; at times he testified that she did not stay overnight.
Gerry stated that following Ann's removal from her mother's custody, he attended visitation with her on a weekly basis. Although he indicated he would like to have Ann live with him, he conceded he would let her live with Tina as "she would be very good for [Ann]."
Gerry testified as to the circumstances surrounding his last visit with Ann. He stated that when he had gone to Tina's house she spoke to him angrily about the manner he had knocked at the door. Gerry acknowledged that he had not seen Ann from May 2012 until March 2014 because he was "hurt" at the allegation that he was not her father. He also conceded he had not appeared in court during the litigation of this matter between March 2012 and October 2014.
Thirteen-year old Ann also testified, explaining that she believed Gerry was Susan's father the first time she met him. She recalled feeling left out when Gerry would visit with her and Susan. She only recalled meeting him once when she was seven and again when she was nine years old. It was only the year before the trial that she learned he was her father.
Ann further stated she was upset about an incident that occurred while she was living with Tina. Gerry came to the house late one night banging on the door and telling Ann, in what she perceived as a threat, that he could get Tina into "serious trouble." She stated she did not want to live with or even see Gerry, but instead wanted to be adopted by Tina.
After a review of the evidence presented at trial, and the applicable law, the judge terminated Gerry's parental rights, finding that the Division had satisfied each of the prongs set forth in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The judge stated:
In this case [Ann] has been harmed by the parental relationship with [Gerry]. [He] has not been a parent figure to [Ann] for most of her life. . . . [T]he Court did accept the testimony of [Gerry] that there was a relationship when she was very small. . . . [T]he court is not satisfied that is the type of relationship that has continued. . . .This appeal followed.
[Ann], however, did not recall [events described by Gerry that occurred in the past]. She did not have those memories.
. . . .
The record shows that [Gerry] has failed to consistently attend visitation with [Ann] and has failed to maintain contact with the Division for long periods of time.
N.J.S.A. 30:4C-15.1(a) authorizes the Division to petition for the termination of parental rights in the "best interests of the child" 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.
"Our review of a trial judge's decision to terminate parental rights is limited." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters," we accord even greater deference to the judge's fact finding. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original) (quoting Cesare, supra, 154 N.J. at 413). Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made," they should not be disturbed, even if the reviewing court would not have made the same decision. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).
Gerry contends that the Division did not meet its burden to prove any of the prongs of the statute by credible evidence. After reviewing Gerry's arguments in light of the record and applicable legal principles, we conclude that none of them have merit and his challenge to the sufficiency of proofs to support any of the four prongs lacks sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E).
We conclude the judge supported her finding that the Division proved all of the prongs by substantial credible evidence. The judge conducted a well-reasoned assessment of the evidence and thoroughly considered each prong of the statute, concluding that there would "be no harm to [Ann] if her relationship with [Gerry was] severed," in contrast to the "psychological trauma" she would experience if taken away from Tina's care. We affirm substantially for the thoughtful reasons set forth in her oral decision.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION