On appeal from Final Judgment of Adoption by Superior Court, Chancery Division-Family Part, Morris County.
Antell, Baime and Thomas. The opinion of this court was delivered by Thomas, J.s.c., temporarily assigned.
The opinion of this court was delivered by
THOMAS, J.S.C., temporarily assigned.
Appellant is appealing from an Order of August 21, 1991 terminating his parental rights as natural father of his two boys, aged 12 and 14, and granting adoption.
The boys have been living with their mother and adoptive father since 1982. Appellant is serving a life sentence with 30 years parole ineligibility following his conviction for conspiracy
and murder in 1986. He has exhausted his appeal process without success.
The trial court held appellant's incarceration for the next 24 years constituted an abandonment because he would not be able to perform any of his parental functions. The trial court questioned the boys in camera and found they wanted the adoption.
The following issues were raised in appellant's brief:
I. THE TRIAL COURT ERRED IN BASING THE TERMINATION OF PARENTAL RIGHTS SOLELY ON THE NATURAL FATHER'S INCARCERATION
A. [APPELLANT'S] CONVICTION WAS NOT FINAL
B. NEITHER INCARCERATION PER SE NOR COMMISSION OF A CRIME ARE GROUNDS FOR TERMINATION OF PARENTAL RIGHTS
C. THERE IS AN ALTERNATIVE TO TERMINATION OF PARENTAL RIGHTS IN THIS CASE
II. THE TRIAL COURT ERRED IN ITS REFUSAL TO ORDER A PSYCHOLOGICAL EVALUATION OF THE CHILDREN
III. THE TRIAL COURT ERRED IN ITS REFUSAL TO APPOINT A GUARDIAN AD LITEM FOR THE CHILDREN
IV. THE ADOPTION PROCEEDING SHOULD HAVE BEEN STAYED PENDING THE EXHAUSTION OF [APPELLANT'S] CRIMINAL APPEAL
H.E. and L.E. (now L.S. -- the natural mother) were married on October 29, 1976. Two children were born of the marriage -- H.A.E. (born May 8, 1977) and J.B.E. (born December 14, 1978).
L.S. was divorced from H.E. on September 8, 1982. Joint custody was awarded at that time and visitation was granted to H.E. L.A.S. (adoptive parent) and L.S. (natural mother) were married in December of 1982. The children have resided with their mother and L.A.S. since that time. However, L.A.S. has supported the children since 1981.
H.E. visited the children a few times after the divorce and before his arrest. H.E. and his brother W.E. were arrested in early 1985 and charged with hiring a man to kill W.E.'s ex-wife. H.E. denied involvement in the crime. H.E. was convicted of conspiracy to commit murder and first degree ...