Opinion
DOCKET NO. A-1847-11T2 DOCKET NO. A-1849-11T2
02-12-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. E.P. AND I.B., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF Z.N.B. AND L.A.B., minors.
Joseph E. Krakora, Public Defender, attorney for appellant E.P. (Angelo G. Garubo, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant I.B. (Brian Donnelly, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brandon Hawkins, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor children (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, Hayden and Lisa.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-178-11.
Joseph E. Krakora, Public Defender, attorney for appellant E.P. (Angelo G. Garubo, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant I.B. (Brian Donnelly, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brandon Hawkins, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor children (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendants appeal from the judgment of the Chancery Division, Family Part, terminating their parental rights to two children they had together, a girl, now three years old, and a boy, now two. Addressing defendants' appeals together in a single opinion, we affirm the judgment.
Defendant E.P., who is now twenty-six years old, is the biological mother of four children. Defendant I.B. is not the father of E.P.'s two older children, and those children are not involved in this case. A 2006 DYFS referral alleged that E.P. left the two older children alone while she went out to buy cigarettes. DYFS did not substantiate neglect because E.P. believed that an adult was home with the children. The paternal grandmother of the two older children was later granted custody because E.P. could not care for them. I.B., who is now twenty-three years old, has also fathered several children with women other than E.P. Those children were not in his custody and are not involved in this case.
Defendants' daughter was born in the summer of 2009. She was removed from E.P.'s custody a month later because she was injured in a fight between the two defendants. She was returned to E.P. but was again removed from her custody after another incident of domestic violence in March 2010. The girl has been in a foster home since she was eight months old.
When E.P. gave birth to defendants' son in the summer of 2010, DYFS took custody of him directly from the hospital. He has remained in foster homes his entire life. The children are now with separate foster parents, and they seem to be doing well in those homes. Both foster parents want to adopt the children.
DYFS intervened because both parents demonstrated violent tendencies. As stated, the older child was caught in the middle of the parents' domestic violence when she was an infant, and she sustained visible bumps and scratches to her head and face. Neither parent has acknowledged that their violence is a serious risk of harm to their children. Despite the efforts of DYFS to guide defendants toward becoming responsible adults and developing parenting skills, they are unable and unwilling to modify their conduct to assure the safety of these children.
The Family Part conducted a termination trial in October 2011. Only two witnesses testified, a DYFS caseworker and a psychologist who had evaluated the defendants and also conducted bonding evaluations of the children with defendants and the foster parents. Much of the factual evidence was presented through DYFS documentation of its investigations and its contact with defendants and the foster parents. Defendants raised no objection to the admission of documentary evidence. Defendants elected not to testify at the trial and did not present any witnesses of their own. They argued, based on the evidence that was presented, that DYFS had not proven the statutory criteria to terminate their parental rights.
Judge Octavia Melendez filed a written decision on November 4, 2011. She carefully reviewed the evidence and stated her findings of fact and her conclusions of law in accordance with the applicable statute, N.J.S.A. 30:4C-15.1(a). Judge Melendez concluded by the clear and convincing standard of proof that the best interests of the children support termination of defendants' parental rights so that the children can be adopted. We affirm the Family Part's judgment essentially for the reasons stated in Judge Melendez's thorough opinion. Substantial credible evidence justifies the judge's findings of fact and conclusions of law. We add only the following comments to highlight the law that guides our review on appeal and the most salient points of the judge's opinion.
As an appellate court, we do not weigh the evidence as if we must make an initial decision. We defer to the trial court's findings of fact and the conclusions of law that are based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). We also defer to the trial court's assessment of expert evaluations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).
We accord deference to the trial judge because she had the opportunity to "make first-hand credibility judgments" and to gain a "feel of the case" over time, thus supporting a level of factual familiarity that cannot be duplicated by an appellate court reviewing a written 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)). In E.P., the Supreme Court said: "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." Ibid.; accord In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "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., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605). Here, the family court's conclusions were not wide of the mark but well-supported by the evidence DYFS presented.
Defendants contend that the judgment should be reversed because the evidence did not satisfy the four criteria required by N.J.S.A. 30:4C-15.1(a) for termination of their parental rights. Under the statute, parental rights may be terminated when:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;DYFS bears the burden of proving the statutory criteria by clear and convincing evidence. G.L., supra, 191 N.J. at 606. The Family Part's inquiry is extremely fact-sensitive. M.M., supra, 189 N.J. at 280. The four subsections of the statute 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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide for 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) [DYFS] 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.
In this case, the four subsections of the statute were amply proven by compelling evidence as to each defendant. As previously stated, the first subsection was shown by the evidence of serious domestic violence by defendants, including in the presence of their infant child. The violence was initiated by both. The father's violence included physical assaults with his fists, choking, sexual assault, and even on one occasion the firing of a gun at the mother, leaving a bullet in the apartment below their residence. The father also exhibited violence to people other than the mother. He threatened at one point to shoot up his sister's house immediately after he was released from jail and was seeking access to his infant daughter, who was in the sister's care at that time. In March 2010, the father was charged and incarcerated because of his criminal conduct toward the mother and because of other violations of a probationary sentence he was then serving.
The mother's violence included an attempt to stab the father and to throw boiling water on him. She also attacked him with her hands when he was holding the child and caused visible scratches to the child's head and face. Like him, her violent tendencies are not limited to her domestic partner. Frequently, she has exhibited violent outbursts directed at other family members.
The infant children were at risk of physical and psychological harm in the custody of these parents. Although the boy was never in their custody and thus did not experience first-hand risk of injury, "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the parent or guardian." N.J.S.A. 9:6-8.46(a); see N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.), certif. denied, 192 N.J. 68 (2007); Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002).
DYFS made numerous recommendations and referred defendants for counseling and treatment, but they have not progressed significantly toward eliminating the risk to their children. They do not adequately understand their responsibility and the steps they must take to curtail their violent tendencies. They deny violent conduct when the evidence has been documented, visible, and otherwise unrefuted. The father disregarded attempts to correct his misbehavior; the mother was more cooperative but still inconsistent in addressing her faults. Neither completed domestic violence, anger management, or substance abuse counseling.
The father is generally uninterested in counseling and treatment. His commitment to nurturing and caring for his children is highly suspect. Although he objects to termination of his parental rights, he did not inquire about seeing the children when the DYFS caseworker contacted him in jail. His notion of being a father is to have someone else care for his children while he claims them as his own and enjoys the right to an occasional visitation when it suits him. As shown by his behavior immediately after being released from jail, his attempts at visitation can be disruptive and potentially dangerous for the caretakers of his children.
His incarceration is not in itself a basis to deny his constitutional right to being a parent, see In re Adoption of Children by L.A.S., 134 N.J. 127, 136-37 (1993), but "[t]he effect of imprisonment, and the concomitant inability to carry out many regular and ordinary parental duties, can be deleterious to the emotional and psychological condition of the children," id. at 141. A parent's incarceration is a relevant factor in determining whether to terminate the parental relationship. Id. at 136-37.
The mother has been diagnosed with mental illness but has been resistant to pursuing treatment persistently or to taking her medications regularly. Her efforts to attend counseling and parenting classes improved before the time of the termination trial, but her level of commitment to repairing her deficits never inspired confidence. The expert psychologist who evaluated the mother concluded that she would not be able to eliminate the risk of harm to the children because of her mental disabilities and her violent tendencies.
DYFS offered the mother a number of services: domestic violence counseling, parenting classes, therapeutic visitation with the children, psychological and psychiatric evaluations, individual therapy, and substance abuse treatment. The availability of services for the father has been limited by his incarceration, but, as stated, he is not interested in the guidance provided by DYFS.
In addition to offering counseling and other services to defendants, DYFS sought family members as potential caregivers for the children, but none of them proved suitable to the task. DYFS's efforts to avoid termination of parental rights have been extensive.
Finally, the termination of these defendants' parental rights will not cause more harm than good. Bonding evaluations demonstrated that the children are doing well in the homes of their foster parents, who want to adopt them. In comparison with the children's reliance on the foster parents to provide the nurture and care they need, their relationships with defendants are tentative, guarded, or non-responsive.
In guardianship cases, a child's need for permanency and stability is a "central factor" that guides the court's decision. K.H.O., supra, 161 N.J. at 357. These children were never in the custody of either defendant for very long. They need permanency and stability in their lives. Defendants are not capable of providing those needs.
Judge Melendez did not err in concluding that the best interests of these children require a permanent home and an opportunity to be adopted. She correctly terminated the parental rights of defendants.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION