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Division of Youth and Family Services v. C.N.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 7, 2007

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
C.N., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF A.M.R. A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FG-04-60-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 23, 2007

Before Judges Skillman and Le Winn.

Defendant, the natural father of A.M.R., born November 18, 2005, appeals from the February 5, 2007, order of the Family Part terminating his parental rights to that child. The parental rights of A.M.R.'s natural mother, M.A.R., had previously been terminated by default following a proof hearing on November 27, 2006.

The sole point raised on appeal is:

THE TRIAL COURT ERRED IN RULING THAT DEFENDANT'S PARENTAL RIGHTS SHOULD BE TERMINATED AS THE STATE FAILED TO PROVE, BY THE REQUIRED CLEAR AND CONVINCING EVIDENCE, THAT TERMINATION OF THE PARENTAL RIGHTS WAS APPROPRIATE

Having thoroughly reviewed the trial record and defendant's appellate arguments, we are convinced the trial court's decision is soundly based on clear and convincing evidence of record and should not be disturbed on appeal.

Trial of this matter commenced on January 24, 2007, at which time defendant was incarcerated and appeared in court pursuant to writ; his counsel requested an adjournment based on defendant's representation that he was about to be released from custody and would prefer to appear for trial following release. Counsel stated on the record defendant's decision not to obtain his own expert witness as well as his agreement to submit into evidence the report of the State's proffered expert, Dr. Gruen, and to waive cross-examination of that expert. Defendant also stated, through counsel, his intention to waive his appearance at the adjourned trial date if he remained incarcerated as of that date. The trial judge questioned defendant directly both as to the expert witness issue as well as his proffered appearance waiver.

Thereafter, trial was re-scheduled for February 5, 2007, at which time defendant appeared and, following the State's case, declined to testify or offer any evidence on his behalf. Again, defendant was questioned closely, both by his counsel and by the trial judge, as to the voluntariness of this decision.

Dr. Gruen's report, dated November 30, 2006, consisted of his evaluation of defendant. The report notes defendant's "lengthy criminal record involving possession and sale of drugs and thefts." The results of his psychological testing "reveal[ed] promises of reform but a history of recidivism. [Defendant] is impressed with himself; he does not want to lose face by signing a designated surrender." Dr. Gruen's expert conclusions were as follows:

[A.M.R.]'s life cannot be put on hold waiting and watching to see if her birth father can stay away from drugs, renounce his criminal lifestyle, get a stable job, and take care of his child. Results of this Psychological Evaluation suggest that the achievement of these goals is unlikely.

[Defendant] has never met [A.M.R.] and has never taken care of his children to the best of my knowledge. He has no psychological bonding with [A.M.R.]. He has been in prison throughout her life. I recommend termination of parental rights as in the best interests of [A.M.R.].

The State's sole witness at trial was DYFS caseworker, Charmain Bryant, who testified that she notified defendant of his paternity of A.M.R. in February 2006, while he was incarcerated. He never contacted her in response to her letter. To the best of her knowledge, defendant never proffered a parenting plan, or requested services from DYFS, or had any visitation with the infant.

A.M.R. had been born addicted to crack cocaine and, for that reason, remained hospitalized until January 2006, at which time she was placed in the custody of her maternal grandmother and has remained in that placement to the present day. Ms. Bryant described the grandmother as "basically the only mother [A.M.R.] knows." Defendant has never offered any member of his family as foster parents for the child. DYFS's intention was to place her in foster care with the maternal grandmother.

On cross-examination, Ms. Bryant acknowledged that defendant had asked the maternal grandmother to bring the infant A.M.R. to prison for visitation, but the grandmother did not feel comfortable with giving her Social Security number in order to be put on his approved visitors' list. DYFS left the visitation decision up to the grandmother.

Now, on appeal, defendant's arguments consist of after-the-fact speculation and disagreement with the trial court's decision. There is absolutely no evidence of record to support his appellate claims that he had some plans to "clean up his life" and make arrangements to become a suitable parent to A.M.R. His entire "case" at trial consisted of brief cross-examination of Ms. Bryant and his counsel's summation arguing that he should be given an opportunity to interact with his daughter and receive services from DYFS.

Defendant learned of his paternity of A.M.R. in January 2006, at which time he was, and remained at the time of trial in February 2007, incarcerated in New Jersey State Prison. At no time in the intervening year did he make any efforts to seek services from DYFS or take any steps to become part of his daughter's life other than his one request to the maternal grandmother to bring the infant to prison for visitation. When the grandmother declined his request, he made no efforts to arrange visitation through DYFS.

At the conclusion of trial, Judge Page, a seasoned family judge with longstanding experience in these types of cases, rendered a comprehensive and thoughtful opinion from the bench, making specific factual findings and subjecting those findings to the appropriate legal analysis under the controlling case law and statutory standards. Specifically regarding defendant's argument (in summation) that he should be given an opportunity now to take the necessary steps to obtain custody of his infant daughter, Judge Page found that delay in permanency would, in and of itself, cause significant harm to this child. See, In re Guardianship of K.H.O., 161 N.J. 337 (1997).

The factual record in this case amply supports Judge Page's findings that all four statutory prongs under N.J.S.A. 30:4C-15.1(a) were established by clear and convincing evidence, thereby warranting termination of defendant's parental rights to A.M.R.

Affirmed.

20071107

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