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State, Division of Youth and Family Services v. T.J.P.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 18, 2007

STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
T.J.P., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF K.D.P. AND J.J.P., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FG-04-110-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 1, 2007

Before Judges Lintner, Graves and Alvarez.

T.J.P. appeals from a judgment entered by Judge Page terminating his parental rights to his daughter, K.D.P., and his son, J.J.P. The children's biological mother, K.M.P., died of a heroin overdose on September 15, 2005. T.J.P. argues that the order terminating his parental rights should be reversed. He claims that the trial judge failed to properly apply the second, third, and fourth prongs of the best interest test as enunciated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-612 (1986). Challenging the sufficiency of the evidence on those prongs, T.J.P. specifically asserts that the judge's findings that (1) he was unable to eliminate the harm and unwilling to provide a safe and stable home for the children, (2) the Division of Youth and Family Services (DYFS) made reasonable efforts to offer services, and (3) termination of parental rights will do more harm than good, are not supported by substantial credible evidence. We reject these contentions and affirm.

In October 2004, DYFS received a referral that K.D.P., then age seven, was not attending school on a regular basis, falling behind on schoolwork, and suffering verbal abuse from her parents, both of whom were using drugs. K.M.P. denied using drugs and indicated that K.D.P. had missed school due to illness. She confirmed that T.J.P. was using drugs again but he intended "to go into rehab." However, K.M.P. was unable to come up with notes from any doctor regarding her daughter's alleged illness. DYFS opened a case for services and supervision.

T.J.P. returned to the family home, however, he did not make himself available to meet with DYFS caseworkers. Neither T.J.P. nor K.M.P. complied with DYFS's request to undergo substance abuse evaluations. On April 26, 2005, K.M.P. was admitted to the hospital with asthma. At that time, she was pregnant with J.J.P. K.D.P. continued to miss school. Neither K.M.P. nor T.J.P. attended school conferences to discuss K.D.P.'s absences.

K.M.P. tested positive for opiates during her stay in the hospital. In a May 5, 2005, meeting, DYFS advised both parents that it would seek court intervention. At another meeting the next day, T.J.P. and K.M.P. indicated that they had not attended drug treatment because Parkside Recovery was giving them a "runaround." At that time, they both tested positive for opiates. Because of the positive drug test and K.D.P.'s continued school absences, DYFS obtained an order placing K.D.P. in the custody with her maternal grandmother. The order also required that both parents report to Parkside Recovery for drug treatment.

J.J.P. was born on June 6, 2005, and he tested positive for methadone and suffered from withdrawal symptoms. His symptoms worsened, causing him to be transferred to the Weisman Children's Rehabilitation Hospital where he remained until July 14, 2005, at which time he was deemed stable for discharge to a foster home for medically fragile children.

Both parents continued to refuse to comply with court ordered treatment. Toward the end of August 2005, DYFS was informed that T.J.P. and K.M.P. moved without leaving a forwarding address. On October 3, 2005, K.D.P.'s maternal grandmother informed DYFS that K.M.P. had died. On the day of K.M.P.'s death, just after she was found unconscious and not breathing in the motel room the couple shared, T.J.P. was arrested on possession of a controlled dangerous substance. Upon being released from jail at the end of October 2005, T.J.P. started drug treatment at Parkside. However, he continued to test positive for heroin and he left the program in February 2006. He made no attempt to inform DYFS of his whereabouts and had little or no contact with his children. DYFS filed its complaint for guardianship on May 26, 2006.

DYFS had T.J.P. evaluated by Dr. Frank Shwoeri, a licensed clinical psychologist.*fn1 He found T.J.P. to be indifferent and nonchalant about the interview. T.J.P.'s plan for his children was to live in his grandfather's home, which was in the process of being sold. T.J.P. was unemployed at the time and indicated that he would apply for Social Security benefits for his panic and bipolar disorders. He had not, however, procured a medical report indicating either diagnosis.

The results of psychological tests indicate that T.J.P. has features of a narcissistic and histrionic personality, and that he has little empathy for others, including his children. Shwoeri believed that T.J.P.'s longtime use of heroin, his lack of insight into his reasons for relapse, and his developmental immaturity render his prospects of recovery from his drug addiction to be minimal. Shwoeri pointed out that T.J.P.'s lack of motivation for treatment together with his denial of drug addiction and psychological difficulties render him incapable of parenting and unresponsive to his children's needs.

At the time of his interview, T.J.P. had not seen J.J.P. since shortly after his birth, sixteen months earlier. Shwoeri found that there was no bond between T.J.P. and J.J.P., and thus no harm would befall J.J.P. if he were not reunited with his father. K.D.P. was nine years old at the time of the evaluation. She had been living with her maternal grandmother for one year. T.J.P. showed no emotion when he interacted with K.D.P., and he appeared to the doctor to be "cautious and neutral" when dealing with K.D.P. The two sat across from each other several feet apart for quite some time before any real interaction occurred. When it did, it was initiated by K.D.P., who seemed "to rescue" T.J.P. by starting conversation or games. Shwoeri pointed out that that represented a reversed parent-child role, which was not good for K.D.P. because it meant that only her father's needs, and not hers were to be met. Shwoeri found an emotional flatness to T.J.P.'s response toward his children, as if he was uncomfortable even with K.D.P., with whom he had lived for eight years.

By contrast, Shwoeri found K.D.P. had developed a very positive bond with her maternal grandmother, with whom she is doing well. Although she claimed school was boring, she was getting good grades. She expressed a clear preference to live with her maternal grandmother and not to live with her father.

J.J.P. also has had a very positive interaction with his present foster parents, who are responsive and attuned to his needs, and provide the stability, protection, nurturing, and guidance he needs. Shwoeri opined that no significant harm would come to K.D.P. if she were not reunited with her father. He also opined that both children would suffer harm if they were removed from their current caretakers who wish to adopt them.

T.J.P. argues that DYFS failed to establish by clear and convincing evidence that it was necessary to terminate his parental rights in order to protect his children's best interest. He also claims, for the first time on appeal, that Judge Page predicated his findings that reunification of K.D.P. with him would cause greater harm than good based upon hearsay testimony. Specifically, he points to testimony, given without objection, by caseworker Anh Quang that K.D.P. told Quang and the previous caseworker that she loved her grandmother and wanted to stay with her. However, contrary to defendant's contention, Judge Page did not predicate his finding or rely on K.D.P.'s statement to the caseworkers. Instead, in his opinion, he cited Shwoeri's testimony relative to Shwoeri's interview with K.D.P., as well as Shwoeri's conclusion that K.D.P. had good reason not to want to be reunited because T.J.P. was not attuned to her needs due to his own problems. Quang's testimony did not have a clear capacity to produce an unjust result and its admission was harmless. R. 2:10-2.

We are satisfied, based on our thorough review of the entire record, notwithstanding the arguments presented on T.J.P.'s behalf, that the provisions of N.J.S.A. 30:4C-15.1a and A.W., supra, 103 N.J. at 604-12, were satisfied. Judge Page's opinion comprehensively outlines the history of the matter, as well as the testimony of the various witnesses, including the expert. There was sufficient evidence on the record to support the judge's findings and conclusions. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We affirm substantially for the reasons expressed by Judge Page in his thorough and comprehensive forty-seven-page opinion delivered from the bench on December 22, 2006.

Affirmed.


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