Opinion
DOCKET NO. A-1411-13T2
10-20-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.B., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF T.M.W., J.K.W., D.M.W., D.N.W., D.L.W., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Kathryn Talbot, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors (Phyllis G. Warren, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Simonelli. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-42-13. Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Kathryn Talbot, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors (Phyllis G. Warren, Designated Counsel, on the brief). PER CURIAM
After a six-day guardianship trial in this Title 30 action brought by the Division of Child Protection and Permanency ("the Division"), the trial court terminated the parental rights of defendant S.B. as to five of his biological children. The children are, respectively, a pair of twins (J.W. and T.W.) born in September 2006, and a younger set of triplets (D.M.W., D.L.W., and D.N.W.) born in January 2009. All five children have the same biological mother, S.W., who surrendered her own parental rights during the course of the trial. The twins were seven years old at the time of trial and the triplets were age four. In addition to the five children involved in this case, defendant is the biological father of least four other children from other relationships.
Defendant was convicted of a weapons offense in 2008, before the triplets were born. He was sentenced in August 2009 to a seven-year custodial term with a five-year parole ineligibility period. During his time in prison, defendant had little, if any, contact with the five children. He was released to a halfway house in April 2012, and was paroled in October 2013 during the course of the guardianship trial. At the time of trial, defendant was employed as a laborer and was in a relationship with T.W., the mother of two of defendant's other children.
The Division has had extensive involvement with the children for much of their lives. In May 2012, the Division removed all five children from the mother after she persistently failed to provide them with an essential level of care, resulting in unsafe living conditions in the residence and untreated medical conditions. The mother did not follow through with many of the services the Division offered to her, despite having had the children removed from her care once before in 2011.
The twins were consequently placed with one set of foster parents, and the triplets with a different foster family. Defendant made little to no effort to contact or visit his children, other than by writing letters to S.W. He did not contact the foster mother whose telephone number he had been given. Defendant did not financially support the children during or after his incarceration, and did nothing to assure that they were being cared for.
According to the expert testimony presented at trial by the Division's psychologist, the children have bonded well with their foster caretakers, both of whom are interested in adoption. By contrast, the Division's expert observed that the children largely appeared to be detached and ambivalent in their interactions with defendant. The expert recommended that the children's best interests would be served by continuing them in the care of their resource parents.
Defendant's expert psychologist presented a more favorable assessment of defendant and his ultimate ability to cultivate a relationship with the children. However, the defense expert acknowledged that the children had bonded with their foster parents and were affectionate towards them.
Defendant proposed that the five children in this case and his other four children from other relationships all live together with him and his present female companion. He contemplates that his companion would watch all nine children while he would provide financial support by working both a full-time and part-time job. Defendant identified no relatives that are willing and able to care for the children.
The Law Guardian supported the Division's request at trial to terminate defendant's parental rights. On appeal, the Law Guardian joins with the Division in urging that we uphold the final judgment.
In an extensive fifty-page written opinion issued on November 1, 2013, the trial judge, William Anklowitz, J.S.C., concluded that the Division had proved all four criteria for termination under N.J.S.A. 30:4C-15.1 by the necessary quantum of clear and convincing evidence. Among other things, the judge found that the Division's expert was more credible than defendant's expert, and that defendant had contributed to the conditions that led to the children's endangerment by his absence from home and by his "maladaptive personality" that is prone to criminal recidivism. The judge also found that the Division had made reasonable efforts to provide defendant with services, including monthly visitations, and that permanently severing the children's beneficial placement with their foster caretakers and instead placing them with defendant would cause them more harm than good.
Applying the well-settled limited scope of review we must accord to the decisions of Family Part judges who preside over guardianship trials, see, e.g., N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), we affirm the final judgment in this case, essentially for the comprehensive reasons cogently set forth in Judge Anklowitz's written opinion. There is an abundance of "substantial credible evidence in the record to support the court's findings." E.P., supra, 196 N.J. at 104.
The trial judge did not treat defendant unfairly or rest his analysis on the mere fact of defendant's incarceration. Instead, the judge appropriately considered the incarceration as only one of many facets of his analysis. See N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 556 (2014 ) (noting that incarceration, though alone insufficient grounds to terminate parental rights, is one among several factors a court may consider in best-interests analysis); In re Adoption of Children by L.A.S., 134 N.J. 127, 135-37 (1993) (same). We agree with Judge Anklowitz that the proposed plan of this inexperienced father — having behavioral problems of his own — to care and provide for a large household of nine children that included triplets and twins was "unrealistic and infeasible." The Division supplied defendant with reasonable services, but his own shortcomings were simply too much to overcome. In addition, it would be clearly harmful to sever the strong bonds that the children have developed with their foster parents.
Defendant argues for the first time on appeal that the children's foster parents were not properly advised by the Division about kinship legal guardianship ("KLG") as an alternative to termination. That argument is not supported by any testimony or other competent proof in the record, and we reject it summarily. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify at the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION