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New Jersey Division of Youth and Family Services v. L.B.


October 19, 2007


On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Essex County, Docket No. FG-07-169-06.

Per curiam.



Submitted: October 3, 2007

Before Judges Cuff and Simonelli.

L.B., the father of two and one-half year old L.L.B., appeals from the order terminating his parental rights.*fn1 He contends that the decision to terminate his parental rights is against the weight of the evidence and that the State failed to carry its burden of proof. We disagree and affirm.

L.L.B. is the biological child of S.P. and L.B. S.P. has given birth to seven other children, none of whom are in her care. Defendant has fathered two other children who are not in his care and not financially supported on a consistent basis.

L.B. was arrested and charged with attempted robbery in September 2004 following a failed bank robbery. He is presently serving a term of imprisonment in a federal correctional facility. He may be released on parole as early as October 2009. L.B. has never seen his son.

L.L.B. was born on January 24, 2005. His mother had received no pre-natal care. L.L.B. and his mother tested positive for cocaine and opiates. His mother admitted that she used drugs about two to three times a day throughout her pregnancy. On February 4, 2005, L.L.B. was released from the hospital into the care of V.H., a foster parent, who continues to care for him and two of his half-siblings. V.H. intends to adopt L.L.B.

No services designed to help L.B. address the circumstances that led to the removal of L.L.B. from his mother's care were provided due to his incarceration. DYFS, however, explored two suggested placements with members of L.B.'s family. A paternal aunt failed to comply with a DYFS requirement that she and her boyfriend submit to fingerprinting as part of the placement assessment. Another paternal aunt, who resided in Virginia, never submitted the requisite paperwork in spite of multiple expressions of interest in the child. The child's mother suggested a sister and an aunt, both of whom declined to care for this child because they were already caring for several of his siblings.

L.L.B. suffers from developmental delays with his fine and gross motor skills and language development. At birth, he also suffered from torticollis, a flattening of one side of the head. He receives occupational and physical therapy to address the identified developmental delays. His foster mother supports and supplements the therapy.

Dr. Leslie Andrew Trott, a psychologist, testified about the bonding evaluation he conducted between L.L.B. and the child's foster mother. He observed a parent-child relationship. Dr. Trott opined that L.L.B. depends on the fact that he is continuously in close proximity with his foster mother. The doctor observed a "richly sweet" interaction between L.L.B. and his foster mother. In particular, he described an incident when he asked the foster mother to leave the room. Dr. Trott testified that L.L.B. moved directly to the door, stood with his hand on the doorknob and looked to the doctor to open the door to allow him to be with his foster mother. When the doctor opened the door, L.L.B. walked directly to his foster mother and wrapped his arms around her legs.

Dr. Trott concluded that L.L.B. expects his foster mother to constantly support him and meet all of his needs. If L.L.B. was separated from her, "he would have a significant period of adjustment, more so because of his developmental disabilities than a child who doesn't have a disability, that he reasons in such a concrete manner and his expectations are so concrete that I can't imagine another situation that would effect him more negatively."

L.B. testified telephonically due to his imprisonment. He stated that he did not plan to return to Newark on his release from prison. His goal was to raise his son as a decent, Christian man. L.B. lamented the absence of his father from his life and did not want his son to experience the same loss. He was confident that he would be able to find employment and financially support his son. He conceded, however, that he knew that S.B. was pregnant, that he was arrested a few months prior to his son's birth, and that he had never seen his son. He admitted that he provided a false name to law enforcement officers at the time of his arrest but denied that he did so to avoid discovery of an outstanding child support arrest warrant.

In his oral opinion, Judge Glenn Grant found that S.P.'s long-standing substance abuse posed a serious threat to the well-being of L.L.B. He further found that L.B. had been unable to provide any care, supervision, support or nurture for an extended period of time because of his criminal conduct and incarceration. He also found that L.B.'s absence delayed a permanent placement for his son.

Judge Grant also found that L.B.'s conduct and imprisonment deprived his son of a paternal relationship. L.B's absence also allowed his son to form a bond with his foster family and the disruption of this bond would cause further harm to the child.

Judge Grant further found that DYFS provided services to L.B. He related its investigation of the familial placement options suggested by L.B. and the failure of those persons to embrace any responsibility for this child.

Finally, the judge found that L.L.B. had no relationship with either biological parent; therefore, he would suffer no harm if permanently separated from them. He further found that it was in the best interest of L.L.B. to finalize his bonded relationship with his foster family.

L.B. argues that these findings are against the weight of the evidence. That is clearly not the case. DYFS has the obligation to satisfy the statutory best interests standard, N.J.S.A. 30:4C-15.1a(1)-(4), by clear and convincing evidence. In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999); N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87-88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). This record amply documents that L.B.'s absence contributed to the harm experienced by L.L.B. L.L.B. knew that S.P. was pregnant yet did not insist that she receive pre-natal care or endeavor to abstain from substance use. Due to the circumstances of his arrest and conviction, he has neither cared for nor financially supported his son. His conduct has allowed harm to continue by allowing L.L.B. to form a secure relationship with his foster mother, severance of which would cause enduring harm to the child. The family members suggested by L.B. failed to step forward to care for L.B. Finally, the record provides overwhelming evidence that termination will not do more harm than good. In fact, the inability of L.L.B. to remain permanently with his foster family would cause great harm to him.

We, therefore, affirm the January 4, 2006 order terminating L.B.'s parental rights substantially for the reasons expressed by Judge Grant in his February 1, 2007 oral opinion.


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