Opinion
DOCKET NO. A-2968-15T2
12-09-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.E.G., Defendant-Appellant, and D.M.H., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF D.M.G., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Adrienne Kalosieh, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Kathryn Talbot, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (David Valentin, Assistant Deputy Public Defender, on the brief).
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Sabatino and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-57-15. Joseph E. Krakora, Public Defender, attorney for appellant (Adrienne Kalosieh, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Kathryn Talbot, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (David Valentin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant J.E.G. appeals from the March 7, 2016 judgment of guardianship of the Family Part terminating his parental rights to his daughter, Donna, born in 2010. Defendant contends that the Division of Child Protection and Permanency (Division) failed to prove each prong of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The Law Guardian supports the termination on appeal as it did before the trial court.
We refer to the adult parties by initials, and to the child by a fictitious name, to protect their identities.
The judgment also terminated the parental rights of the child's mother, D.M.H., who voluntarily surrendered her parental rights to the child on August 19, 2015. D.M.H. has not appealed the trial court's decision to terminate her parental rights. --------
Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition overwhelmingly supports the decision to terminate defendant's parental rights. Accordingly, we affirm substantially for the reasons set forth in Judge Bruce Kaplan's thorough, seventy-eight-page written decision rendered on February 29, 2016.
We will not recite in detail the history of the Division's involvement with defendant. Instead, we incorporate by reference Judge Kaplan's factual findings and legal conclusions. We add only the following comments.
Defendant was himself in the Division's custody while he was a minor. When defendant turned eighteen, the Division continued to provide him with services, including housing and a monthly stipend, through its Independent Living Program. Approximately three months after Donna's birth, defendant and D.M.H. were involved in an incident of domestic violence and defendant left the child in D.M.H.'s care. Defendant did not seek custody or visitation with his daughter for the next two years.
In March 2013, there was another altercation between defendant and D.M.H. The Division intervened and placed Donna with D.M.H.'s sister. Defendant acknowledged he was unable to care for the child while he was participating in the Independent Living Program.
However, in April 2013, the Division received a referral indicating that defendant was now caring for Donna in violation of the rules of the Independent Living Program. The referent also reported that defendant had "smacked" Donna four times in the face because she would not listen to him or stop crying. When the Division investigated, the caseworker found that defendant had left the child in a wet diaper without proper hygiene. The Division also learned that defendant was three months behind in his rent and about to be evicted. Therefore, the Division removed Donna from defendant's care and placed her with a resource family.
In the months that followed, the Division provided services to defendant to help him secure stable housing through the Division of Developmental Disabilities. However, defendant failed to follow through with the required paperwork and, for the next year, lived with his brother, who would not permit the Division to assess the home to determine whether it would be an appropriate placement for Donna.
Although defendant was permitted to have supervised visitation with Donna during this period, defendant's participation was inconsistent. He often arrived late, left early, or used his cell phone for the duration of the visit. Defendant's participation in parenting classes, therapy, and other services was also sporadic at best.
In January 2014, defendant alleged he had obtained a permanent residence on his own, but he would not permit the Division to inspect the home in which he claimed to be living. The Division also assessed and ruled out several individuals suggested by defendant and D.M.H. as possible placements for Donna.
Between 2013 and May 2015, Donna was placed in a series of six separate resource homes because of recurring behavioral issues. By the time of the trial, however, Donna was living with a stable resource family that wished to adopt her.
In May 2015, defendant allowed the Division to inspect an apartment where he was allegedly living. The caseworker found exposed water pipes, a non-functioning carbon dioxide detector, and a lack of food in the residence. In addition, defendant refused to provide the Division with a copy of his lease.
During a supervised visit in June 2015, defendant started kissing Donna on her mouth, neck, and chest. When the child attempted to get away from him, defendant pulled her back to him and continued to kiss her until the caseworkers intervened.
At trial, defendant testified he had obtained a job under an assumed name at a home improvement center. However, the general manager of the store testified that defendant did not work there.
Dr. Alan Lee, Psy.D. testified at trial as the Division's expert psychologist. After evaluating defendant, Dr. Lee concluded that defendant had "a narcissistic personality, [was] prone to poor coping and problem solving, and inclined to patterns of inconsistency, instability[,] and irresponsibility." Based upon these findings, Dr. Lee opined that defendant was not currently capable of parenting Donna and would not be able to do so in the foreseeable future.
Dr. Lee also conducted a bonding evaluation between defendant and Donna, and between Donna and her resource parents. Dr. Lee opined that Donna did not have a significant positive bond with defendant. Although Donna had not been living with her current resource parents long enough to have formed a bond with them, Dr. Lee testified that a significant and positive psychological bond would grow with time, and the resource parents would therefore be able to ameliorate any slight harm that might be caused by severing the child's ties with defendant.
Defendant presented the testimony of two expert psychologists, Dr. Andrew Brown, III, Ph.D. and Dr. Donald Franklin, Ph.D. Both witnesses testified that Donna would suffer emotional harm if defendant's parental rights were terminated. However, Judge Kaplan found that Dr. Lee's analysis was entitled to greater weight because both defense experts primarily relied upon defendant's self-reporting as to his compliance with services, and his claim that he had obtained a job and stable housing. Because the judge found that defendant's assertions on these points were not credible, he ruled that the opinions of the defense experts as to defendant's capacity to act as Donna's parent were based upon faulty information.
Before the trial concluded, defendant left New Jersey without saying goodbye to Donna, and moved to Virginia. He participated on the last day of trial by telephone.
In his comprehensive opinion, Judge Kaplan reviewed the evidence presented, and thereafter concluded that (1) the Division had proven all four prongs of the best interests test by clear and convincing evidence, N.J.S.A. 30:4C-15.1(a); and (2) termination of defendant's parental rights was in Donna's best interests. On this appeal, our review of the trial judge's decision is limited. We defer to his expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 413 (1998), and we are bound by his factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). After reviewing the record, we conclude that Judge Kaplan's factual findings are fully supported by the record and, in light of those facts, his legal conclusions are unassailable. We therefore affirm substantially for the reasons that Judge Kaplan expressed in his comprehensive and well-reasoned opinion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION