Opinion
DOCKET NO. A-4440-12T3 DOCKET NO. A-0073-13T3
04-21-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. N.G. and A.W., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF U.V.S.G., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant N.G. (Angelo G. Garubo, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant A.W. (Michael C. Kazer, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Beth Ferlicchi, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor U.V.S.G. (James J. Gross, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Alvarez and Carroll.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-220-12.
Joseph E. Krakora, Public Defender, attorney for appellant N.G. (Angelo G. Garubo, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant A.W. (Michael C. Kazer, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Beth Ferlicchi, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor U.V.S.G. (James J. Gross, Designated Counsel, on the brief). PER CURIAM
In this consolidated matter, defendants N.G. (mother) and A.W. (father) appeal from an April 30, 2013 order terminating their parental rights to their daughter U.V.S.G. (Ursula). Additionally, A.W. appeals from a July 29, 2013 order denying his motion to vacate default judgment. Having reviewed the record, we affirm substantially for the reasons stated by Judge Craig Harris in his oral opinions issued on April 29, 2013 and July 29, 2013.
N.G. is also referred to as N.A.C.G. and N.G.P.
A.W. is also referred to as A.P.
We use a pseudonym for the child.
I
The facts and procedural history are set forth at length in Judge Harris's opinions and need not be repeated here in the same level of detail. To summarize, by the time this case came to trial, the Division of Child Protection and Permanency (Division) had been involved with defendants for approximately ten years. Prior to this case, defendants' parental rights had been terminated as to four of their other children. When Ursula was born in 2009, A.W. was in prison. He had no contact with the child after his release and made no effort to visit her throughout the guardianship proceedings.
N.G. has a long history of drug abuse and emotional problems. The Division took custody of Ursula on an emergent basis on June 22, 2011, due to N.G.'s drug use and the unsanitary housing in which she and the child were living. A medical examination revealed that the child was underweight, never having been given formula but only powdered milk, and she had dangerously high levels of lead in her bloodstream. She had never received any vaccinations and was speech-delayed. Ursula was placed with a well-qualified, loving foster family who, over time, became her psychological parents and were willing to adopt her.
Meanwhile, despite the Division's repeated efforts to provide her with treatment, N.G. continued to use drugs. She tested positive for marijuana on numerous occasions throughout the pendency of the guardianship case, including on days when she appeared for court hearings. She refused to attend a specialized intensive outpatient program that the Division offered her. Two expert witnesses testified that she was psychologically unfit to safely parent Ursula. At the time of the guardianship trial, she also had no stable housing or employment, and her mental health issues remained unaddressed. She presented no witnesses at the trial.
According to the expert witnesses presented by the Division and Law Guardian, the child had at most an insecure bond with N.G. On the other hand, the child had a secure bond with the foster parents, who had become her psychological parents. After living with them for a year and a half, the three-year-old Ursula would have suffered serious and enduring psychological harm if her relationship with the foster parents were severed. She would not suffer that harm if her relationship with N.G. were terminated. Finding that the child was "desperately" in need of a permanent home, the judge concluded that termination of N.G.'s parental rights was in Ursula's best interests.
Due to his abandonment of Ursula, the father had no relationship with her at all. He was served with process by mail in the State of Washington, and in a telephone appearance, acknowledged on the record that he received the complaint and order to show cause. He also acknowledged receiving a 5A form which he needed to complete in order to receive legal representation. See N.J. Div. of Youth & Family Servs. v. L.M., 430 N.J. Super. 428, 449 n.5 (App. Div. 2013). Judge Harris found that the father never completed and returned the 5A form and defaulted in the guardianship trial by repeatedly failing to appear, despite efforts by the Division and the court to contact him. The record is replete with unsuccessful efforts to contact A.W. by telephone, at numbers he had provided, so that he could participate in court proceedings. Although he found A.W. in default, Judge Harris also made detailed findings with respect to the four prongs of the best interests test as applied to A.W., and determined that termination of his parental rights was in the child's best interests.
After the judge entered an order terminating A.W.'s parental rights, he obtained counsel who filed a motion to vacate the default. However, at the motion hearing on July 29, 2013, A.W.'s attorney candidly conceded that she had been unable to contact her client and he had not provided any plan for the child. After considering that information, the judge declined to vacate the order terminating A.W.'s parental rights.
II
In striking a balance between a parent's constitutional rights and a child's fundamental needs, courts employ the four-part guardianship test articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:
a. The division shall initiate a petition to terminate parental rights on the grounds of
the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) 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.
[N.J.S.A. 30:4C-15.1a.]
In their application, the four factors above "'are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).
In reviewing Judge Harris's decision, we will defer to his factual findings unless they "'went so wide of the mark that a mistake must have been made.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted). So long as "they are 'supported by adequate, substantial and credible evidence,'" a trial judge's factual findings will not be disturbed on appeal. In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1983) (citation omitted). And we owe special deference to the trial judge's expertise in handling family issues. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).
We conclude that Judge Harris's decision to terminate the parental rights of both defendants is amply supported by the record. We find no basis to disturb his well-reasoned determinations as to the four prongs of the best interests test, or as to the adequacy of service of process on A.W. We find no abuse of discretion in his decision to deny A.W.'s motion to vacate the guardianship judgment.
On this appeal, N.G. presents the following points:
POINT I - THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP N.G. CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILDREN'S REMOVAL.
POINT II - THE COURT BELOW ERRED IN FINDING THAT TERMINATION WOULD NOT DO MORE HARM THAN GOOD AND THE DIVISION FAILED TO SHOW THAT A
DELAY OF PERMANENT PLACEMENT WOULD CAUSE OR ADD TO THE HARM.
Those arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add these comments.
N.G contends that the Division provided her with inadequate services to treat her drug addiction. We cannot agree. The Division made repeated efforts to provide her with services. However, as the witnesses testified, no drug treatment program will work for an individual who refuses to attend.
In his appeal, A.W. raises the following arguments:
POINT I - THE TRIAL COURT'S FAILURE TO ASSIGN COUNSEL TO REPRESENT A.W. DURING THE GUARDIANSHIP TRIAL, AS SUGGESTED BY THE DEPUTY ATTORNEY GENERAL, SO TAINTED THE INTEGRITY OF THE PROCEEDINGS, THAT IT RESULTED IN AN UNFAIR ADJUDICATIVE PROCESS, EVEN THOUGH A.W. WAS NOT PRESENT AND WAS SUBSEQUENTLY FOUND TO BE IN DEFAULT.
POINT II - THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE FOUR PRONGS OF THE BEST INTERESTS TEST WERE NOT PROVEN BY "CLEAR AND CONVINCING" EVIDENCE.
(A)
THE TRIAL COURT ERRED IN FINDING THAT A.W.'S ABANDONMENT OF [U.G.] SATISFIED THE FIRST AND SECOND PRONGS OF THE BEST INTERESTS TEST.
(B)
THE TRIAL COURT ERRED IN FINDING THAT DCPP PROVED THE THIRD PRONG OF THE BEST INTERESTS TEST.
(C)
TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.
POINT III - THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING A.W.'S MOTION TO VACATE THE DEFAULT.
We conclude that those arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We add the following comments.
We find no merit in A.W.'s claim that he was denied due process. He was served with the complaint and acknowledged service on the record, during a telephone appearance. During the trial, A.W. was serving a one-year period of probation in Washington and apparently was not supposed to leave the state without permission from his probation officer. Nonetheless, during his telephone appearance on April 15, 2013, he told Judge Harris that he was on his way to New Orleans, without permission. On another occasion, he told the assigned Division case worker that he was in Texas. A.W. turned down the Division's repeated offers to arrange for him to come to New Jersey; the agency even offered to pay his travel expenses. Apparently, he was not sufficiently concerned about his child to accept the Division's offer of services. We find no error in the judge's determination that A.W. abandoned Ursula, and that his parental rights should be terminated in the child's best interests.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION