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New Jersey Division of Youth and Family Services v. F.P.


June 8, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-25-06.

Per curiam.



Submitted May 8, 2007

Before Judges Payne and Lihotz.

Defendant F.P., the father of the two children who are the subject of this litigation, appeals from the Family Part judgment entered on June 12, 2006, which terminated his parental rights. By that same order, the Division of Youth and Family Services (DYFS or Division) was awarded guardianship of L.P., born May 23, 2003, and R.P., born November 19, 2004, for purposes of consenting to adoption. On appeal, F.P. argues succinctly that the Division failed to meet its statutory burden of proof, by clear and convincing evidence, to sustain a judgment to terminate his parental rights. We disagree and affirm.

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). Understanding that the right of a parent to enjoy a relationship with his child is of constitutional dimension, N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 109-10 (App. Div.), certif. denied, 180 N.J. 456 (2004), the burden rests on the Division "to demonstrate by clear and convincing evidence" that the serious risk of "lasting harm to the child" is so severe as to require the severance of parental ties. In Re Guardianship of J.C., 129 N.J. 1, 10 (1992).

The best interests standard, initially formulated by the Court in N.J. Div. of Youth and Family Serv's. v. A.W., 103 N.J. 591, 604-11 (1986), is determined by a four-pronged statutory test, which the trial court correctly applied. The test, set forth in N.J.S.A. 30:4C-15.1(a), requires the Division to prove:

(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 children. 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 Division became involved with L.P. and R.P. on November 19, 2004, when R.P. was found to have cocaine and opiates in his system at birth. Throughout the period of the Division's involvement, the children's mother, B.A., remained drug-addicted. The current litigation commenced when DYFS filed its complaint on January 13, 2006. When the trial began on June 8, 2006, B.A. executed an identified surrender of her parental rights to the children's current caretaker. Trial continued solely to address whether to terminate F.P.'s parental rights.

DYFS presented testimony from its two case workers; M.P., who is F.P.'s daughter from a prior relationship and who acted as a temporary caretaker for the children after the Division was awarded custody, care and supervision; B.A., the children's mother, who, while living with F.P., experienced incidents of domestic violence and F.P.'s alcohol abuse; and its expert, Ernesto Perdomo, Ph.D., who performed a psychological evaluation of F.P. and a bonding evaluation between father and children. Defendant testified on his own behalf but presented no expert testimony.

The Division first contacted F.P. to act as a possible resource for the care of the children after R.P.'s birth. However, F.P.'s perceived inebriated condition and his expressed unwillingness to be the sole care-provider prevented placement. From January to April 2005, F.P. attended scheduled visits with the children and offered financial assistance, but continued to decline to act as the children's primary caretaker.

At F.P.'s request, DYFS investigated M.P. as a placement resource. F.P. initially suggested that he and the children would live with M.P. She accepted placement of the children on April 11, 2005, but declined to allow her father to reside in her apartment due partially to his alcohol use. F.P. continued unsupervised visitation at M.P.'s residence and afforded some financial assistance by contributing to M.P.'s rental cost.

On more than one occasion, M.P. reported to the Division that F.P. attended visitation smelling of alcohol. On October 3, 2005, F.P. appeared at M.P.'s home around 10 p.m. and attempted to visit with L.P. and R.P. It was undisputed that F.P. was intoxicated. An altercation ensued, during which time F.P. attempted to remove L.P. and also destroyed M.P.'s property. After the altercation with M.P., F.P. skipped some visitations and stopped his financial assistance. In November 2005, at M.P.'s request, the children were removed from her home, and L.P. and R.P. began their stay with their current caregivers, who have expressed an interest in adoption.

On November 16, 2005, F.P. moved without advising DYFS of his new address. The Division later learned F.P. was renting a single room. When questioned about how the children would be accommodated in this residence, F.P. suggested he would only obtain housing sufficient to accommodate the children if he were "guaranteed" that custody would be awarded. F.P., resumed his visitations, which were supervised through the Division's office.

The Division extended services to F.P. including alcohol evaluations and proposed enrollment in an alcohol treatment program, anger management counseling, and parenting classes. F.P. generally denied the need for such treatment and did not participate.

Dr. Ernesto Perdomo opined, based on his psychological evaluation, that "F.P. presents a significant personality disorder and he is not a viable caretaker for his small children." Dr. Perdomo found F.P. exhibited poor judgment, lacked insight, and refused to take responsibility for his behavior, all of which would place the children at risk. Further, F.P. had engaged in acts of domestic violence, which he minimized; and alcohol abuse, which he denied. Dr. Perdomo explained that while F.P. had an ability to provide a certain role as a parent, he ultimately lacked the ability to be a primary caretaker for the children. Illustrations of how F.P. shirked parenting responsibilities included that he either neglected or refused to change L.P.'s diaper; left visitation appointments early; exhibited difficulty setting boundaries for L.P. and R.P. without reverting to threats of corporal punishment; and was physical with L.P. such as biting her nipple through her shirt while playing, smacking her bottom with a book as a means of diverting L.P.'s rambunctious behavior, and taking off his belt to threaten L.P. to behave.

Dr. Perdomo discussed his bonding evaluation, concluding: "From a psychological point of view I don't see any harm for the children to be separated from [F.P.] because there is no bonding there." Dr. Perdomo emphasized the children's need for stability, especially because they had been moved around so much. The foster parents were providing a stable home and appropriate care for these children.

At trial, F.P. expressed his desire to care for his children, if given custody. Prior to trial, F.P. had obtained an apartment sufficient to accommodate the children. F.P. maintained he was financially able to support both children, as he was a self-employed construction contractor earning $2,000 to $3,000 per week. This assertion was challenged on cross-examination, and F.P. admitted that when completing his request for counsel, he averred he earned $1000 per month. F.P. candidly acknowledged that he drank a six-pack of beer each weekend and agreed he told Dr. Perdomo that he stopped drinking over a year ago, which was not true. F.P. had made no specific plans for his children's care while he was working, but believed he could enlist the aid of a neighbor.

In his written opinion, the trial judge enunciated the facts supporting his determination that the Division met its burden of proof, by clear and convincing evidence, satisfying the four prongs of the statute. F.P. first demonstrated a desire to act as the primary caretaker for the children over one year following the order granting the Division custody. At all times prior, F.P. specifically refused to assume the role of primary caregiver. Even at trial, F.P. suggested he would need assistance with the children, but he had neither considered the children's needs nor developed a plan to meet those needs if L.P. and R.P. were returned to his care. F.P.'s persistent drinking, incidents of domestic violence with his former wife, former girlfriend, and M.A., and his need to use force to regulate his children's behavior, coupled with his unwillingness to seek treatment for his alcohol abuse or anger issues, evidenced an inability to provide a stable, suitable living environment for L.P. and R.P. The trial judge found F.P. to be "evasive and non-credible" on the issues of excess drinking, domestic violence and his ability to care for the children. Finally, relying on the expert testimony by Dr. Perdomo, the court determined no bond existed between R.P. and L.P., so there would be no resultant harm from termination of parental rights. This was in contrast to the potential harm to the children if separated from the positive living arrangement with the current resource family.

Review of a trial court's grant of guardianship is limited. We will not disturb the factual findings of the trial judge unless they are unsupported by adequate, substantial and credible evidence in the record. N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). It has otherwise been stated that "our appellate function is a limited one: we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963) (quoting Weiss v. I. Zapinsky, Inc., 65 N.J. Super. 351, 357 (App. Div. 1961)).

After reviewing the record and applicable law in light of the contentions advanced on appeal, we are compelled to conclude that the trial court's findings are supported by substantial credible evidence, and its conclusions predicated on those findings are legally sound. The overarching need for permanence for these two young children overcomes any parental suggestion that more time would result in F.P.'s successful achievement of a plan for the children's safety and security. The reforms resulting from the Federal Adoption and Safe Families Act of 1997, 42 U.S.C.A. § 301, 671(a)(16), 675(5)(A)(ii), require that "[t]he emphasis [be] shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." C.S., supra, 367 N.J. Super. at 111. "Keeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law." A.G., supra, 344 N.J. Super. at 438 (quoting In re P.S., 315 N.J. Super. 91, 121 (App. Div. 1998)).

We therefore affirm the conclusion to terminate F.P.'s parental rights, substantially for the reasons stated by the trial judge in his written decision dated July 20, 2006.



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