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State of New Jersey Division of Youth and Family Services v. H.J.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 20, 2006

STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
H.J., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF A.H. AND A.H., MINORS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-16-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 12, 2006

Before Judges Kestin and Graves.

Defendant H.J., the father of twin daughters A.H. and A.H., born on December 31, 2003, appeals from a judgment of guardianship terminating his parental rights to both children and awarding guardianship of the children to the Division of Youth and Family Services (the Division) for purposes of consenting to adoption. The mother of the children, F.H., executed an identified surrender of her parental rights to the present foster parents, who are committed to adopting the two children. We affirm.

On appeal, H.J. makes the following arguments:

POINT I

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE THE SECOND, THIRD, AND FOURTH PRONGS OF THE "BEST INTERESTS" TEST BY CLEAR AND CONVINCING EVIDENCE.

(A)

UNDER THE SECOND PRONG, THE DEFENDANT CAN BECOME PARENTALLY FIT IN TIME TO MEET THE NEEDS OF A.H. AND A.H.

(B)

UNDER THE THIRD PRONG, THE DIVISION FAILED TO MAKE REASONABLE EFFORTS TO OFFER SERVICES TO THE DEFENDANT BECAUSE IT WAS NOT COMMITTED TO THE SUCCESS OF ITS REUNIFICATION EFFORT.

(C)

THE TRIAL COURT APPLIED AN IMPROPER "BETTER INTERESTS" ANALYSIS INSTEAD OF THE STATUTORILY REQUIRED "BEST INTERESTS" TEST UNDER THE FOURTH PRONG.

After reviewing the record and applicable law in light of the contentions advanced on appeal, we conclude that the trial court's findings are supported by substantial credible evidence, and its legal conclusions predicated on those findings are sound. We affirm substantially for the reasons stated by Judge Freid in his comprehensive written decision dated April 28, 2006.

Our Legislature has recognized the importance of strengthening and preserving the integrity of family life, but it has also recognized that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). The best interest standard, initially formulated by the Court in New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified in N.J.S.A. 30:4C-15.1(a), requires the Division to establish each of the following standards by clear and convincing evidence before parental rights may be severed:

(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).]

These requirements are not discrete. They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. The considerations involved in determining parental fitness are extremely fact sensitive and require particularized evidence that addresses the specific circumstances present in each case. In re Guardianship of K.H.O., 161 N.J. 337, 346-48 (1999).

The trial court carefully considered all of the evidence, including the testimony of Dr. James Battaglia, a psychologist, who conducted a psychological evaluation of H.J. The trial court's findings and conclusions included the following:

Since [H.J.] finally came forward in September, 2005 he has been offered visitation with the twins and has failed to see them on even a single occasion while professing an interest in caring for them and contesting this termination trial. At the time of trial [H.J.] had still not seen them. [H.J.] testified at trial to having fathered 5 children in addition to these twins (while having told Dr. Battaglia in his interview that he had only 4 others). He lives with only 1 of them who he fathered with his current girlfriend. The 7 children were the results of unions with 4 different women. He testified that he is under no child support orders yet says he supports all the children (except the twins) "in cash" but then he testifies he is $6,400 in arrears on child support.

He testifies he leaves home for work at 6:00 a.m. and returns to Paterson at about 5:30 p.m. and then goes to the two different homes of 4 of the other children every day to bathe them, help with their homework etc. and then returns to his current girlfriend and their child (and her other child) at around 10 p.m. to do the same. He presents no evidence or witness to confirm either his financial support of his other children "in cash" or his alleged daily involvement in the lives of each and every one of them. He states he has lived with his current girlfriend in a monogamous relationship for the past 4 years but yet had no responsive answer when on cross[-]examination it was pointed out that the twins would have to have been conceived with [F.H.] in approximately March of 2003.

The children have been in a highly successful foster home placement for almost 2 years of their 27 months (at time of trial) of life. That home has provided for all of their day to day care and needs and they are thriving in their placement according to the testimony of the Division's workers. Also, a change in their placement would be very disruptive to their development according to Dr. Battaglia and he found [H.J.] specifically to have serious limitations in his ability to parent these two infants. [H.J.] placed the twins at risk in regards to their health[,] safety and development by abandoning them at birth.

[H.J.] has been unwilling or unable to eliminate the harm facing the children. The [c]court finds [H.J.'s] testimony that he was unaware of their birth (they were born in December, 2003) or of the pendency of this litigation and the Division's attempts to locate him and engage him in the proceedings as totally lacking in credibility. The birth mother and he have known each other for more than a decade. She stated to the Division at the very outset of the case that he was the father of the children, that he knew about them and that he didn't want anything to do with them. The Division made every reasonable effort by searches evidenced by the 2 affidavits of inquiring in evidence, by personal inquiries of possible relative sources and by repeated mailings (including to the 366 12th Ave., Paterson address which he provided in [c]court as his correct mailing address) to notify him of the litigation. [H.J.] clearly avoided all contact and all interest until threatened with arrest in September, 2005.

Since then, despite being offered visitation he has failed to see the children on even a single occasion. He has clearly totally neglected and abandoned them and any interest now seems fueled by a belief that there may be a monetary benefit to having them with him.

[H.J.] has absolutely no relationship with the twins, in fact, as of the da[t]e of the trial he has never even set eyes upon them. . . . Dr. Battaglia testified that in his opinion [H.J.] was not capable of parenting two[-]year[-]old twins and meeting their needs including social development and education issues. He found his intellectual level of functioning to limit his abilities to parent and that no significant improvement could be expected. He stated he'd have significant problems in caring for two toddlers without someone "walking him through" their day[-]to[-]day care and that he hasn't convinced that even with "all sorts of support" he would be successful. He also stated that removal of the twins from their placement of approximately two years would be "very disruptive to their development."

The scope of our review is limited. Findings by a trial court "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. The trial court found that the Division had proved each of the four statutory standards by clear and convincing evidence, and we are satisfied that the trial court's findings and conclusions are fully supported by the record. We therefore affirm the judgment terminating H.J.'s parental rights substantially for the reasons stated by the trial court.

Affirmed.

20061220

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