Opinion
DOCKET NO. A-2957-11T2
03-11-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. K.G., Defendant-Appellant, and R.M., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF A.G. and J.M., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant K.G. (Thomas G. Hand, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ramiro A. Perez, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.G. and J.M. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Hoffman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-74-11.
Joseph E. Krakora, Public Defender, attorney for appellant K.G. (Thomas G. Hand, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ramiro A. Perez, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.G. and J.M. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief). PER CURIAM
This is a Title Thirty guardianship case. Defendant K.G. appeals from the January 11, 2012 judgment terminating her parental rights to James and Alan. We are satisfied that the record fully supports the decision to terminate K.G.'s parental rights. The Family Part applied the correct legal standards to its factual conclusions. As there is no basis for disturbing the court's findings, we affirm substantially for the reasons set forth in Judge John A. Conte's comprehensive sixty-one page written opinion. We add the following comments.
We use fictitious names for the children.
Defendant R.M. has not appealed the judgment of guardianship.
The Division of Youth and Family Services first became involved with the family in 2007, and what followed were a series of interactions, most notably two emergency removals of the children following K.G.'s overdose on prescription medications. The first emergency removal occurred in June 2009. The children remained in foster care until they were reunified with K.G. in early August 2010, after she successfully completed the counseling and therapy provided for her by the Division as well as returning negative urine screens. Reunification was short-lived, as another emergency removal was required two months later because K.G. had improperly "taken leftover pills from an old prescription" medication and was under its influence.
The Division is now known as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
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The record clearly reveals that K.G. has suffered from a history of substance abuse as well as displaying a fragile emotional and psychological state. She is unable to provide a safe and stable home for the children, unlike that provided by the children's resource family. To delay a permanent placement for the children would serve to only further the harm they have experienced.
On November 14, 15, 16, and 28, 2011, a guardianship trial was conducted before Judge Conte. The four witnesses produced by the Division were Division employees Christina Keresztes and Ariana Uceta; the children's foster father M.G.; and Frank J. Dyer, Ph.D. No witnesses were presented by either the Law Guardian (who supports the Division's permanency plan) or K.G.
Based upon a voluminous documentary record and the testimony observed during trial, Judge Conte concluded that all four factors of the best interests test, see N.J.S.A. 30:4C-15.1(a), were satisfied by clear and convincing evidence. The judge found that "[w]hen considering the overwhelming quantity and weight of evidence, along with the testimony of the witnesses, there is left no question that the parental rights [of K.G.] should be terminated." This appeal followed.
On appeal, K.G. argues that Judge Conte
erred in terminating the parental rights of K.G. because he mis-read an April 6, 2010 order that required [the Division] to provide reunification therapy to K.G.['s] two boys, Judge Conte also relied on the flawed testimony of Dr. Frank Dyer, Ph.D., who (a) failed to properly consider K.G.'s long-term sobriety in rendering his opinion, and (b) relied on the foster father's unenforceable promise to continue visitation after termination.The record amply supports Judge Conte's acceptance of Dr. Dyer's opinions, which were subjected to sharp challenge through cross-examination. Furthermore, even if Judge Conte's interpretation of another judge's April 6, 2010 order was mistaken, it did not, as K.G. argues, render Judge Conte's findings "disturbing and egregious and must be reversed."
This appeal comes to us fortified by two levels of deference. First, it is entitled to the deference to which any trial court's fact-finding is entitled. J.D. v. M.A.D., 429 N.J. Super. 34, 42 (App. Div. 2012) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Second, it is enveloped by the special deference accorded by the Family Part's particularized jurisdiction in family matters possessed of its acknowledged expertise in the field of domestic relations. See N.J. Div. of Youth & Family Servs. v. T.S., 429 N.J. Super. 202, 216 (App. Div. 2013) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Judges who "hear the case and see the witnesses . . . are in a better position to evaluate the credibility and weight to be afforded testimonial evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007) (reinstating the trial court's findings and careful analysis); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418 (App. Div. 2009) (affirming the denial of termination of parental rights of the mother).
After canvassing the record in light of the detailed findings contained in the trial judge's written opinion, we find nothing amiss that would impel our intervention. Judge Conte carefully cataloged the relevant evidence and explicated his rationale in a logical and forthright fashion. An appellate court, when in possession of such a complete record, need not repeat the details of the case at length or replicate the trial court's opinion.
K.G. targets one particular finding for criticism. Judge Conte, in writing about K.G.'s relapse in October 2010, and the children's second removal, stated the following:
[K.G.] took Klonopine to help her with her stress. As a result, she was admitted to [the Bergen Regional Medical Center]. She relayed to the Division worker she felt relieved that the children were going back to the same foster parents. She blamed the relapse on the fact that she was no longer attending AA or NA meetings, and not participating with other services. A prior court order on April 6, 2010, required her to bring the children to therapy. However, she failed to comply with that order.
[Emphasis added.]
The order at issue was rendered as part of the Title Nine proceeding that was pending against K.G. It stated:
Children ____ shall be treated by individual psychotherapy-Division to make referral.The Division concedes that the literal words of the order did not achieve fulfillment, and by implication, Judge Conte's characterization of K.G.'s alleged failure to comply with that order was erroneous. However, the record is replete with the otherwise almost ceaseless efforts of the Division to assist K.G. with her substance abuse demons and foster reunification with the children. The judge's characterization of K.G. as noncompliant with the order did not skew the ultimate outcome, and at worst, it was a harmless error.
K.G. does not argue that the Division did not make reasonable efforts to address her substance abuse problems or attempt to reunify her with her children. Nor does K.G. contend that the Division failed to explore alternatives to termination of her parental rights. Rather, she complains that the Division "did not provide the necessary targeted services to K.G., in the form of promised therapy for the boys before reunification in August of 2010." Notably, K.G. does not explain how the absence of such targeted services contributed to her October 2010 relapse with prescription drug abuse. Under the totality of the circumstances the Division's satisfaction of its obligations under the best interests test was overwhelming.
The four factors of the best interests test place an effective brake upon unwarranted terminations of parental rights. In their application, the factors "are not [discrete] and separate but represent an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 285 (App. Div.), certif. denied, 196 N.J. 347 (2008). When viewed as the trial judge viewed them, those factors were properly evaluated and applied.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION