DCPP VS. I.G., C.J. AND L.B.IN THE MATTER OF THE GUARDIANSHIP OF S.J., T.J. AND I.G.(FG-01-022-16, ATLANTIC COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0714-16T1
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
I.G.,
Defendant-Appellant,
and
C.J. and L.B.,
Defendants.
_____________________________________
IN THE MATTER OF THE GUARDIANSHIP OF
S.J., T.J., and I.G., MINORS.
_____________________________________
Submitted May 8, 2017 – Decided May 18, 2017
Before Judges Sabatino, Haas and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic
County, Docket No. FG-01-022-16.
Joseph E. Krakora, Public Defender, attorney
for appellant (Christine B. Mowry, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel; Erica
Sharp, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (David Valentin,
Assistant Deputy Public Defender, on the
brief).
PER CURIAM
Defendant I.G.1 appeals from a September 29, 2016 guardianship
judgment terminating her parental rights to her three children,
now ages eleven and six. She contends plaintiff Division of Child
Protection and Permanency (the Division) failed to prove by clear
and convincing evidence that terminating her parental rights was
in the children's best interests, under the standards codified in
N.J.S.A. 30:4C-15.1(a). The Division and the Law Guardian oppose
the appeal. We affirm.
Parents have a constitutionally protected, fundamental
liberty interest in the care, custody, and supervision of their
children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388,
1394-95, 71 L. Ed. 2d 599, 606 (1982); N.J. Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261, 279 (2007). Nonetheless, that
interest is not absolute and "must be balanced against the State's
parens patriae responsibility to protect the welfare of
1
We use initials to protect the privacy of the children.
2 A-0714-16T1
children." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.
596, 605 (2007) (quoting M.M., supra, 189 N.J. at 294-95). In
some cases, termination of a parent's constitutionally protected
interest may be necessary to protect a child. N.J. Div. of Youth
& Family Servs. v. A.W., 103 N.J. 591, 599 (1986).
The Division, formerly known as the Division of Youth and
Family Services, is "the State agency for the care, custody,
guardianship, maintenance and protection of children." State ex
rel. J.S., 202 N.J. 465, 477 (2010) (quoting N.J.S.A. 30:4C-
2(a)). When the Division seeks to terminate a person's parental
rights, a court must determine if doing so is in the child's or
children's best interests. In a Title 30 proceeding, the "best
interests" evaluation requires the Division prove by clear and
convincing evidence:
(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 [D]ivision has made reasonable efforts
to provide services to help the parent correct
the circumstances which led to the child's
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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-15.1(a).]
See also A.W., supra, 103 N.J. at 604-11.
The family court "possesses special expertise in matters
related to the family." N.J. Div. of Youth & Family Servs. v.
F.M., 211 N.J. 420, 448 (2012). We generally give deference to
the factual findings of the family court because it has the
opportunity to make first-hand credibility judgments about the
witnesses who appear on the stand, and has the "feel of the case"
that can never be realized by a review of a cold record. N.J.
Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).
Our task is to determine whether the decision of the family court
in terminating parental rights is supported by substantial
credible evidence in the record. F.M., supra, 211 N.J. at 448.
Our review of a trial judge's decision to
terminate parental rights is limited. In re
Guardianship of J.N.H., 172 N.J. 440, 472
(2002). Appellate courts must defer to a
trial judge's findings of fact if supported
by adequate, substantial, and credible
evidence in the record. In re Guardianship of
J.T., 269 N.J. Super. 172, 188 (App. Div.
1993). Particular deference is afforded to
decisions on issues of credibility. Cesare v.
Cesare, 154 N.J. 394, 411-13 (1998). There is
an exception to that general rule of
4 A-0714-16T1
deference: Where the issue to be decided is
an "alleged error in the trial judge's
evaluation of the underlying facts and the
implications to be drawn therefrom," we expand
the scope of our review. In re J.T., supra,
269 N.J. Super. at 188-89. Despite such
circumstances, deference will still be
accorded the trial judge's findings unless it
is determined that they went so wide of the
mark that the judge was clearly mistaken.
Ibid.
[N.J. Div. of Youth & Family Servs. v. G.L.,
191 N.J. 596, 605 (2007).]
With that standard and its limited exceptions in mind, we proceed
with our analysis.
Here, to prove the statutory criteria, the Division presented
the testimony of a Division caseworker, Alicia Johnson, and its
expert, Dr. Alan J. Lee, a licensed clinical psychologist with a
specialty in child abuse and neglect. The Division also introduced
fifteen exhibits into evidence. The Law Guardian did not present
any witnesses or move any exhibits into evidence. Defendant
testified, but did not present the testimony of any other witnesses
or move any exhibits into evidence. Following the two-day trial,
Judge Jeffrey J. Waldman issued a twenty-seven-page Memorandum of
Decision in which he meticulously and comprehensively reviewed the
testimony and documentary evidence, carefully considered
defendant's arguments, and concluded the Division had clearly and
convincingly proved that terminating defendant's parental rights
5 A-0714-16T1
was in the children's best interests. We affirm, substantially
for the reasons detailed in the judge's opinion. We add the
following brief comments.
Defendant argues that the Division did not prove the first
statutory criterion by clear and convincing evidence, namely, that
her children's health and safety was endangered by the parental
relationship. N.J.S.A. 30:4C-15.1(a)(1). In fact, the evidence
clearly and convincingly established that the children's health,
safety, and development have been and will continue to be
endangered by their parental relationship with I.G. In that
regard, the record demonstrates that I.G. left the children
unattended on multiple occasions, failed to address the children's
behavioral needs by refusing to follow through on evaluations and
services for the children, and engaged in repeated corporal
punishment with a belt. I.G. also repeatedly failed to attend
treatment and progress meetings and to discuss implementing
Individualized Education Plans for the children. Dr. Lee explained
that I.G. harmed the children because she could not "function as
a minimally adequate parent" or "fulfill the [children's] needs
in a safe, consistent manner."
The considerable trial evidence – including the Division's
provision of a broad range of services for more than two years and
defendant's failure to follow through with the services in a timely
6 A-0714-16T1
manner - amply support the court's finding that the Division proved
the second criterion, namely, defendant was unable to eliminate
the harm facing the children and unable to provide them with a
safe and stable home. N.J.S.A. 30:4C-15.1(a)(2).
Likewise, the trial evidence clearly and convincingly
established the third statutory criterion, that is, the Division
made reasonable efforts to provide services to help defendant
correct the circumstances which led to the children's placement
outside the home. N.J.S.A. 30:4C-15.1(a)(3). These considerable
efforts involved offering a multitude of services to I.G.,
including a psychological evaluation, counseling services,
parenting skills services, a substance abuse evaluation, Division-
supervised visitation, two rounds of therapeutic visitation, and
Family Team meetings to develop a reunification plan and strengthen
I.G's relationship with V.S. In addition, the Division attempted
to assess other potential placements, but was provided with only
one other name other than V.S.
Although defendant argues that kinship legal guardianship was
a legitimate and better option for the children than adoption, the
law is well settled that "when the permanency provided by adoption
is available, kinship legal guardianship cannot be used as a
defense to termination of parental rights under N.J.S.A. 30:4C-
15.1(a)(3)." Division of Youth & Family Servs. v. P.P., 180 N.J.
7 A-0714-16T1
494, 510, 513 (2004); see Division of Youth & Family Servs. v.
T.I., 423 N.J. Super. 127, 135-36 (App. Div. 2011). Here, V.S.
is willing to adopt the children, but is not willing to pursue
kinship legal guardianship.
Lastly, Dr. Lee's findings and opinion supported the judge's
factual determination and legal conclusion that termination of
parental rights would not do more harm than good. N.J.S.A. 30:4C-
15.1(a)(4). Dr. Lee performed a psychological assessment of I.G.,
and bonding evaluations of I.G and V.S. as to each child. Judge
Waldman's decision sets forth a detailed review of Dr. Lee's
findings, including his opinion that I.G. had a poor prognosis for
change and that she would likely continue to think about herself
before thinking about the children. The judge found Dr. Lee's
testimony to be credible, candid and responsive to all questions,
presenting "a believable, consistent and uncontroverted
narrative[.]" The judge further found that "Dr. Lee's testimony
was in accordance with sound psychological practices, utilizing
generally accepted objective testing, and he likewise testified
in a manner consistent with the case record and his report." We
can discern from the record no reason to depart from our
deferential review of such credibility determinations. Cesare,
supra, 154 N.J. at 413.
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Judge Waldman's opinion appropriately tracks the statutory
elements of N.J.S.A. 30:4C-15.1(a), and his factual determinations
are amply supported by credible evidence in the record. Based on
the record, it can hardly be said that the judge "went so wide of
the mark that a mistake must have been made." M.M., supra, at
279.
Affirmed.
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