NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. IN THE MATTER OF THE GUARDIANSHIP OF AND

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Superior Court of New Jersey, Appellate Division.

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff–Respondent, v. J.G., Defendant–Appellant. IN RE: THE GUARDIANSHIP OF A.J.O. AND A.C.O., Minors.

DOCKET NO. A–0436–13T1

Decided: March 20, 2014

Before Judges Parrillo and Harris. Joseph E. Krakora, Public Defender, attorney for appellant, J.G. (Albert M. Afonso, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief;  Julie B. Christensen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.J.O. and A.C.O. (Todd Wilson, Designated Counsel, on the brief).

Defendant J.G. appeals from the September 4, 2013 Family Part judgment terminating her parental rights to her twin sons Arthur and Aiden,1 born in October 2011.   The guardianship complaint filed by plaintiff Division of Youth and Family Services (the Division) 2 also named the boys' biological father, D.O, as a defendant.   In June 2013, D.O. gave a voluntary identified surrender of his parental rights to Arthur and Aiden in favor of the boys' paternal grandparents.   We affirm.

I.

The Division became involved in the life of this family several months prior to the children's birth due to concerns over J.G.'s delusional and schizophrenic behaviors.   Those concerns focused mainly upon J.G.'s steadfast refusal to receive treatment for her mental health disorders.   Following the boys' birth, the Division acquired physical custody of the children due to J.G.'s refusal to seek help.   After approximately ten months in foster care, physical custody of the children was transferred to their paternal grandparents who lived in Pennsylvania.   Both grandparents have definitively indicated that they wish to permanently adopt the boys.

A one-day guardianship trial was conducted in September 2013.   The Division presented documentary evidence and the testimony of two witnesses:  caseworker Jenna Scott and Dr. Alan Lee, Psy.D. J.G. did not testify.   The Law Guardian supported the Division's position that termination of J.G.'s parental rights was warranted.

Immediately following the trial, Judge Louise D. Donaldson rendered an oral decision, finding that the Division had satisfied the statutory best interests test, N.J.S.A. 30:4C–15.1, by clear and convincing evidence.   Judge Donaldson followed up with a twenty-page written opinion explaining in detail the basis for her determination.   The guardianship judgment was entered on September 4, 2013.   This appeal followed.

II.

On appeal, J.G. raises one, and only one, issue for our consideration:

THE COURT'S DETERMINATION THAT THE DIVISION MET ITS BURDEN OF PROOF UNDER THE THIRD PRONG OF THE BEST INTERESTS STANDARD BY CONSIDERING ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS IS NOT SUPPORTED BY RELEVANT, CREDIBLE EVIDENCE.  (NOT RAISED BELOW.)

After reviewing the record developed before the trial court, and mindful of prevailing legal standards, we affirm substantially for the reasons expressed by Judge Donaldson.   Furthermore, we conclude that J.G.'s claim that the Division failed to properly consider an alternative to termination of parental rights is without merit.   We add only the following brief comments.

This appeal comes to us supported by two kinds of deference.   First, it is entitled to the deference to which any trial judge'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 cloaked 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)).

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.

Factor three, N.J.S.A. 30:4C–15.1(a)(3), requires the Division to demonstrate that it

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.

J.G. contends that the trial proofs only equivocally —— not clearly and convincingly —— demonstrated that the paternal grandparents were provided accurate information regarding kinship legal guardianship, N.J.S.A. 3B:12A–1 to –7, and other alternatives that might have obviated the termination of J.G.'s parental rights.   She seeks a remand for a hearing to determine whether the Division, in fact, complied with its statutory duty and whether the adoption decision was made in a knowing and voluntary manner.   See N.J. Div. of Youth and Family Services v. H.R., 431 N.J.Super.   212 (App.Div.2013).

At trial, the Division casework testified as follows:

Q Ms. Scott, did you explain to the paternal grandparents the option of KLG or kinship legal guardianship?

A I did not explain that to them.   The previous adoption worker who had the case before me explained that to them, but I did speak with them about that.

Q Okay. And you spoke with them recently as of a couple days ago, correct?

A Yes.

Q Okay. And what did they indicate to you about their wishes or understanding of KLG?

A They did not want to do KLG because they wanted to make sure that the boys would be with them permanently.

Q And, in fact, they indicated to you, correct, that they understood what KLG was but they actively wanted to adopt, correct?

A Yes.

Q Okay. So they denied KLG, right?

A Yes.

Q And it was thoroughly explained by the Division their options?

A Yes.

The present record does not support J.G.'s claim that the Division did not properly investigate the possibility of kinship legal guardianship with the children's paternal grandparents.   Judge Donaldson found the Division caseworker's testimony to be credible.   Judge Donaldson concluded, “There is no alternative to [termination of] parental rights in this case.   The grandparents were advised ․ that they could avail themselves of KLG, do not wish to do so, and so I don't think there's any alternative plan available for that.”   We discern no sound basis to disturb that conclusion or to otherwise adjust the guardianship judgment.

Affirmed.

FOOTNOTES

1.  FN1. We refer to the children with fictitious names to protect their privacy.

2.  FN2. The Division is now known as the Division of Child Protection and Permanency.   L.2012, c. 16, eff.   June 29, 2012.

PER CURIAM

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