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In re Guardianship of DMH

August 03, 1999


On certification to the Superior Court, Appellate Division, whose opinion is reported at 309 N.J. Super. 179 (1998).

The opinion of the court was delivered by: Handler, J.

This appeal, a companion case to In re Guardianship of K.H.O., __ N.J. __ (1999), requires the Court to consider whether the Division of Youth and Family Services has established by clear and convincing evidence that the termination of parental rights is in the best interests of two children under the statutory standards of N.J.S.A. 30:4C-15.1(a). In addressing that ground for decision, the Court must consider the relation of that standard to an alternative statutory standard based on parental abandonment. N.J.S.A. 30:4C-15(d).

The issues that must be addressed in this appeal are whether the Division has demonstrated by clear and convincing evidence that the two children were harmed by their parents and whether the Division engaged in diligent efforts to unite this biological parent with his children.


L.R. is the biological father of the two children, C.H. and R.H. The biological mother of the children, K.H., now deceased, also had two other children, D.M.H. and L.H., who were not fathered by L.R. *fn1 In this appeal, we have been asked to consider only L.R.'s parental rights as the biological father of C.H. and R.H.

D.M.H., K.H.'s oldest child, was born April 26, 1986 and currently resides in a group foster home. C.H. was born July 19, 1990 and currently resides in a foster home with her half-brother, L.H., who was born September 10, 1991; she has been in foster care since she was three-and-a-half years old. R.H., the youngest, was born on June 17, 1993 and resides in a different foster home; he has been in foster care since he was five days old.

The Division of Youth and Family Services (DYFS) became involved with the family in September 1991, when L.H. was born testing positive for cocaine and opiates, as did his mother. K.H.'s mother agreed to care for the three children, and L.H. was released into his grandmother's care. K.H. was referred to a substance abuse program.

In June 1993, K.H. gave birth to R.H. Both mother and child tested positive for heroin, and R.H. was placed in foster care voluntarily. Throughout, K.H. and her three other children were living in overcrowded conditions with the grandmother. K.H. and three of her children were transferred to a shelter. Shortly thereafter, K.H. signed voluntary agreements with DYFS for the foster care placement of her children, who had been left dirty and unsupervised in the shelter.

In November 1993, DYFS caseworkers learned for the first time that L.R. was the biological father of C.H. and R.H. L.R. expressed a desire to unite with his children eventually, but did not offer to become their caretaker. DYFS caseworkers continued efforts to reunite the children with K.H. as the likely primary custodial parent, in the absence of any steps on the part of L.R. towards assuming custody or participating in their care.

In February 1994, L.R. informed a DYFS caseworker that K.H. had physically assaulted him and that as a result he had admitted himself for psychiatric treatment. In April 1994, L.R. was again voluntarily hospitalized; he was admitted for depression and heroin detoxification and diagnosed with schizo-affective disorder, organic mood disorder, and opoid dependence.

Six months later, in October 1994, L.R. informed DYFS that he wanted the children placed with him, but, despite several reminders, he never returned the police reports necessary to initiate the placement procedure.

In March 1995, in a chance encounter with a DYFS caseworker, L.R., who had not seen his children for a long time, expressed a desire for resumed visitation but failed to follow through. In July 1995, the case was transferred to the Adoption Resource Center, L.R. having taken no steps towards assuming responsibility for his children. L.R. was notified and expressed no opposition to the adoption of the children; he inquired only about continued visits.

Thereafter, in August 1995, L.R. moved to Virginia. K.H. died two months later, in October 1995. One month after that, following his return to New Jersey, L.R. was voluntarily hospitalized, again for heroin detoxification. From November 1995 to May 1996, L.R. had no contact with the children.

DYFS moved to terminate L.R.'s parental rights in March 1996. The court ordered a psychological evaluation of L.R. and bonding evaluations for the children. The termination hearing was held on October 15 and 16, 1996.

According to the court-appointed expert, Dr. Karen Wells, L.R. loves his children and has a bond with them; nevertheless, he is unable to care for them. Dr. Wells reached the further Conclusion that C.H. and her half-brother L.H. were bonded with their foster parents, whom they regarded as psychological parents. As for R.H., Dr. Wells determined that he was a child with special needs; she did not, however, provide a full psychological or bonding evaluation of R.H. At that time, R.H.'s foster parents had not expressed an interest in adopting him. Since then, R.H.'s foster mother has declared her desire to adopt the child.

The trial court ordered the termination of L.R.'s parental rights, expressing its findings in terms of the abandonment standard, as set forth in N.J.S.A. 30:4C-15(d). The court found that L.R. had failed to make any substantial effort to plan for the future of his children from the time he first acknowledged paternity in 1993, although able to do so. Additionally, the court found that further delay in the permanency plan would harm the children. Although the court expressed the view that L.R. had not harmed the children, the final order of termination specified that DYFS had met all the requirements for termination under the best interests of the child standard, which includes harm to the child from the parental relationship. N.J.S.A. 30:4C-15.1(a).

The Appellate Division reversed, finding that the evidence was insufficient to support termination of parental rights based on an abandonment standard. The Appellate Division also determined that DYFS had not met the four-prong best interests of the child standard, failing to show that L.R. caused harm to the children and that DYFS had engaged in diligent efforts to unite the children with their biological father. 309 N.J. Super. 179 (1998). The Court granted the DYFS's petition for certification. 156 N.J. 409 (1998).

Following the decision of the Appellate Division, DYFS filed a Title 9 abuse/neglect complaint against L.R. Psychological evaluations of L.R., the children, and their foster parents were conducted at the request of DYFS by Dr. Alice Nadelman in October 1998, and the results set forth in a report dated December 10, 1998. *fn2 Dr. Nadelman found that L.R. has "no capacity to provide care or protection for children" and that he "has been unable to maintain even minimal responsibilities or contact with his children." She determined that the children, C.H. and R.H., have "endured emotional turmoil and damage" and that continued impermanence would be detrimental to them. She explained that C.H. and L.H. had bonded with their foster parents and that the foster parents could offer them the stable, permanent home they need. She also found that R.H. had bonded with his foster mother, who is willing to adopt him. Accordingly, she "strongly recommended" termination of L.R.'s parental rights.


DYFS brought this action to terminate the parental rights of L.R. under N.J.S.A. 30:4C-15.1(a). That statute is referred to as the best interests of the child standard; it prescribes an integrated multi- element test that must be applied to determine whether termination of parental rights is in the best interests of the child. See K.H.O., supra, __ N.J. at __ (slip op. at 8-9). This standard was first adopted by the Court in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591 (1986), and later codified in N.J.S.A. 30:4C-15.1(a).

Under the statute, parental rights may be terminated upon a showing of each of the following four factors by clear and convincing evidence:

"(1) The child's health and development have 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 foster parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made diligent 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) (1998).] *fn3

The alternative statutory standard, N.J.S.A. 30:4C-15(d), considered by the trial and appellate courts in disposing of this case, provides that ...

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