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Division of Youth and Family Services v. R.G.

November 7, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FG-16-24-06.

Per curiam.



Submitted September 11, 2007

Before Judges Yannotti and Le Winn.

These consolidated appeals arise from the September 21, 2006, final order of the Family Part terminating both defendants' parental rights to the minor child, S.S., born September 15, 2004. D.S. is the natural mother and R.G. is the natural father of S.S. Review of the extensive record convinces us that the trial judge's findings of fact and conclusions of law were clearly based on substantial credible evidence of record and satisfy the statutory factors governing termination of parental rights. N.J.S.A. 30:4C-15.1a.

The pertinent trial evidence is summarized as follows. S.S. was removed from the custody of her natural mother, D.S., and placed in foster care in November 2004, at the age of two months. D.S. has had prior involvement with the New Jersey Division of Youth and Family Services (hereinafter DYFS"). This prior involvement included a psychological evaluation in July 2004 litigation that concluded D.S. was incapable of caring for the children involved in that matter.*fn1 Given the nature and extent of DYFS's prior involvement with D.S. and her five other children, that agency became immediately involved with S.S. upon learning of her birth. Upon S.S.'s placement in foster care, DYFS made several efforts to arrange visitation for D.S. However, as the trial judge noted in his decision, the evidence established that D.S. availed herself of the opportunity for visitation with S.S. on only three occasions, and never at her own volition.*fn2

The true identity of S.S.'s natural father was not revealed until some months after the child's birth. R.G. was incarcerated at that time and has remained incarcerated for much of the time since S.S.'s birth; he was, in fact, incarcerated at the time of trial below. R.G. has prior convictions for drug offenses and endangering the welfare of a minor.*fn3 It is undisputed that he has never visited or even seen S.S. Even when he was out of prison between December 2004 and September 2005, R.G. made no effort to establish a relationship with S.S. His explanation for this was that he had "no number" at which to contact DYFS. However, DYFS workers testified that they had gone to the address he had given them, that of his grandparents, and had left papers for him there. R.G.'s explanation for not having timely received those papers was that, when he was not incarcerated, he would be out "running the streets" sometimes for two days at a time, and his grandmother would give him his mail when he called her. When he finally did obtain the DYFS notices, he still made no efforts to contact their office.

For her part, D.S has been convicted of second-degree robbery. As of the time of trial, she faced a five-year sentence with a requirement to serve 85% of that term before parole eligibility.

At the outset of trial, both parties acknowledged their inability to take custody of and care for S.S. The parties jointly requested that S.S. be placed in the care of D.S.'s maternal aunt, Sheila McClam. However, Ms. McClam was rejected by the trial court following a DYFS report that, when three of D.S.'s other children had been in Ms. McClam's custody, they were "very thin," with at least one child showing two black eyes; Ms. McClam had refused to allow the children to speak to the DYFS worker, and, as the trial judge found, upon their removal from Ms. McClam's custody, "all three children had belt buckle marks on their backs and legs and Ms. McClam's explanation was that they beat each other."

Another proffered relative resource, D.S.'s maternal aunt, Windella Canty, was rejected by DYFS in March 2006 because the Family Part had already approved foster care placement. DYFS advised Ms. Canty of her right to request review of that decision and to request visits with S.S. However, DYFS records reflect Ms. Canty never pursued either of these rights.

As of the time of trial, S.S. had been in the custody of the same foster parents for almost two years. Dr. Frank Dyer, a licensed psychologist, conducted a bonding evaluation and testified that S.S. has been "flourishing" in her current placement and the foster parents are "committed to this child's welfare." According to Dr. Dyer, S.S. has clearly formed a specific attachment to the foster parents and "disruption" of that attachment "would produce a loss that would have extreme negative psychological consequences for her." He said that the "loss" would include "impaired self-esteem, impaired basic trust, and an impaired capacity to form new attachments to others in the future." He added that there is "no other figure in this child's life at the present time to take the place of her attachment figures," noting that D.S. and R.G. are both "complete strangers to this child."

When considered in this factual context, the trial court's decision is unassailable. As our Supreme Court has noted, as a matter of general principle, parental rights are fundamentally important, but not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Where the safety and welfare of children are at risk, the State as parens patriae may step in to protect such children from serious physical and emotional harm, even to the point of partial or complete termination of the parental relationship. The guiding principle in such matters is the best interests of the child. Ibid.

A party seeking to terminate a natural parent's rights to his/her child must demonstrate by clear and convincing evidence the existence of a serious risk of lasting harm to the child so severe as to require severance of parental ties. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The best interests of the child are determined ...

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