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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-4414-16T2
A-4416-16T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
S.W. and R.D.,
Defendants-Appellants.
__________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF A.D., a Minor.
__________________________________
Submitted May 29, 2018 – Decided July 31, 2018
Before Judges Accurso, O'Connor and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FG-02-0045-16.
Joseph E. Krakora, Public Defender, attorney
for appellant S.W. (Deric D. Wu, Assistant
Deputy Public Defender, of counsel and on the
brief).
Joseph E. Krakora, Public Defender, attorney
for appellant R.D. (Britt J. Salmon-Dhawan,
Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Jason W. Rockwell, Assistant
Attorney General, of counsel; Julie B.
Colonna, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Todd S. Wilson,
Designated Counsel, on the brief).
PER CURIAM
S.W. and R.D. are the biological parents of A.D., who was
born in December 2014. In February 2016, the New Jersey Division
of Child Protection and Permanency (the Division) filed a
guardianship complaint naming S.W. and R.D. as defendants. During
a seven-day trial, Judge William R. DeLorenzo, Jr., heard testimony
from four witnesses presented by the Division, and S.W. The judge
issued a detailed written opinion supporting his entry of a
judgment terminating defendants' parental rights and awarding the
Division guardianship of A.D. Defendants filed separate appeals
that were calendared back-to-back, and which we have consolidated
for purposes of this opinion.
S.W. presents the following arguments for our consideration:
POINT I
The Theory Advanced by DCPP and Its Experts
that S.W. Was in Denial About Her Need for
Services is Contradicted by the Record[.]
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POINT II
The Court's Reliance on S.W.'s Previous
Arrests and Expert Opinions About S.W.'s
"Aggressive Attitude" Constituted the Use of
Propensity Evidence to Infer a Risk of Harm[.]
POINT III
Dr. Dyer's Opinions Were Largely Unsupported
by the Record or Even His Observations[.]
POINT IV
Termination of Parental Rights Will Do More
Harm Than Good Because the Harm Articulated
in the Decision was Speculative While the Bond
Between A.D. and Her Mother Was Well
Documented[.]
R.D. offers the following arguments:
LEGAL ARGUMENT
THE JUDGMENT OF GUARDIANSHIP SHOULD BE
REVERSED BECAUSE THE TRIAL COURT ERRED IN
FINDING THAT THREE OF THE FOUR PRONGS OF THE
N.J.S.A. 30:4C-15.1(a) BEST INTERESTS TEST FOR
THE TERMINATION OF R.D.'S PARENTAL RIGHTS HAD
BEEN MET BY CLEAR AND CONVINCING EVIDENCE[.]
POINT I
THE TRIAL COURT ERRED IN FINDING THAT THE
DIVISION SATISFIED THE FIRST PRONG OF THE BEST
INTERESTS TEST BECAUSE THE DIVISION DID NOT
PROVE THAT R.D.'S PARENTAL RELATIONSHIP HARMED
A.D. OR PUT HER AT CONTINUING RISK OF HARM[.]
POINT II
THE TRIAL COURT'S RULING ON THE SECOND PRONG
SHOULD BE REVERSED BECAUSE IT WAS BASED ON THE
SAME FINDINGS AND LEGAL CONCLUSIONS AS THE
UNFOUNDED FIRST-PRONG RULING, AND BECAUSE IN
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ADDITION THE TRIAL COURT ERRONEOUSLY DECIDED
THAT IT WAS FORESEEABLE THAT R.D. WAS UNABLE
OR UNWILLING TO OVERCOME POTENTIAL HARM TO
A.D.
POINT III
R.D. IS ENTITLED TO A REVERSAL BECAUSE THE
EVIDENCE WHICH WAS PRESENTED DID NOT SUPPORT
A FINDING THAT TERMINATION OF PARENTAL RIGHTS
WOULD NOT DO MORE HARM THAN GOOD[.]
Our review of a trial court order terminating parental rights
is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.
595, 605 (2007). "A Family Part's decision to terminate parental
rights will not be disturbed when there is substantial credible
evidence in the record to support the court's findings." N.J.
Div. of Child Prot. & Permanency v. K.T.D., 439 N.J. Super. 363,
368 (App. Div. 2015) (citing N.J. Div. of Youth & Family Servs.
v. F.M., 211 N.J. 420, 448 (2012)). "We accord deference to
factfindings of the family court because it has the superior
ability to gauge the credibility of the witnesses who testify
before it and because it possesses special expertise in matters
related to the family." F.M., 211 N.J. at 448 (citing Cesare v.
Cesare, 154 N.J. 394, 413 (1998)). This enhanced deference is
particularly appropriate where the court's findings are founded
upon the credibility of the witnesses' testimony. N.J. Div. of
Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div.
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2005) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,
65 N.J. 474, 484 (1974)).
"Only when the trial court's conclusions are so 'clearly
mistaken' or 'wide of the mark' should an appellate court intervene
and make its own findings to ensure that there is not a denial of
justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.
88, 104 (2008) (quoting G.L., 191 N.J. at 605). No deference is
given to the trial court's "interpretation of the law," which we
review de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012) (citing
N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183
(2010); Balsamides v. Protameen Chems., 160 N.J. 352, 372 (1999)).
As Judge DeLorenzo correctly recognized, a parent has a
constitutionally protected right "to enjoy a relationship with his
or her child." In re Guardianship of K.H.O., 161 N.J. 337, 346
(1999). That right, however, "is not absolute," and is limited
"by the State's parens patriae responsibility to protect children
whose vulnerable lives or psychological well-being may have been
harmed or may be seriously endangered by a neglectful or abusive
parent." F.M., 211 N.J. at 447 (citing E.P., 196 N.J. at 102).
A parent's interest must, at times, yield to the State's obligation
to protect children from harm. N.J. Div. of Youth & Family Servs.
v. G.M., 198 N.J. 382, 397 (2009).
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When terminating parental rights, the court must consider the
"best interests of the child." K.H.O., 161 N.J. at 347. The
Division's petition to terminate parental rights may only be
granted if the following four prongs enumerated in N.J.S.A. 30:4C-
15.1(a) are established 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 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-15.1(a).]
"The four criteria enumerated in the best interests standard are
not discrete and separate; they relate to and overlap with one
another to provide a comprehensive standard that identifies a
child's best interests." K.H.O., 161 N.J. at 348. "[T]he
cornerstone of the inquiry [under N.J.S.A. 30:4C-15.1(a)] is not
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whether the biological parents are fit but whether they can cease
causing their child harm." In re Guardianship of J.C., 129 N.J.
1, 10 (1992) (citing N.J. Div. of Youth & Family Servs. v. A.W.,
103 N.J. 591, 607 (1986)).
S.W. argues there is insufficient evidence supporting the
court's findings on the second, third and fourth prongs of the
best interests standard. R.D. contends there is insufficient
evidence supporting the court's determination on each prong. We
are not persuaded. Based on our review of the record, we are
convinced Judge DeLorenzo conducted the required fact-sensitive
analysis of the statutory factors as applied to each defendant,
see K.H.O., 161 N.J. at 348, and his findings are adequately
supported by substantial credible evidence in the record, see
F.M., 211 N.J. at 448. We affirm substantially for the reasons
set forth in his well-reasoned 111-page written decision.
Affirmed.
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