January 11, 2008
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
F.A., SR., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF F.G.A., MINOR
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FG-12-91-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2007
Before Judges Grall and Chambers.
In this termination of parental rights case, F.G.A., Sr., the father, appeals from the judgment of March 28, 2007, terminating his parental rights to his son, F.G.A., Jr. The judgment also terminated the parental rights of the mother, S.A., to this child, but she has not appealed. The law guardian for F.G.A., Jr., supports the termination of F.G.A., Sr.'s parental rights.
F.G.A., Jr., was born in New Jersey on December 19, 2002, at which time both he and his mother tested positive for cocaine. The Division of Youth and Family Services (DYFS) was granted legal custody, and the child was placed in foster care where he has remained.
When contacted by DYFS, F.G.A., Sr., initially questioned paternity. Although married to the mother when the child was born, F.G.A., Sr., was living in North Carolina and caring for the first child of the marriage while the mother was in New Jersey. In January 2004, F.G.A., Sr., received the results of a paternity test indicating that he was the child's father. In July 2004, S.A. gave birth to the third child of this marriage.
The mother has a history of drug usage; she also has a criminal record consisting of various theft offenses and has served time in prison for some of these offenses; she has maintained a transient life style; and none of her eight children were living with her at the time of the trial. Since F.G.A., Jr.'s birth, S.A. has intermittently lived with F.G.A., Sr., in North Carolina.
A Home Study Evaluation was completed by the North Carolina authorities in May 2005, at the request of DYFS. At that time the parents were living together. The North Carolina authorities recommended against placing F.G.A., Jr., and his two half-brothers, in the home. The report indicated that while both parents had stable employment and the family had stable housing, although in a high crime area with known drug activity, the family was described as in crisis due to the unstable relationship of the parents, who were contemplating separation. The records indicate some concerns with domestic violence, although such conduct has been denied by F.G.A., Sr. F.G.A., Sr., who works as a bus driver, became unemployed at the beginning of 2006, and as a result of the loss of income, he was evicted from his apartment. He obtained new employment as a bus driver in the fall of 2006. Although he filed a divorce complaint against S.A. in the summer of 2006, F.G.A.
Sr., S.A., and their two daughters were living together in a hotel in the fall of 2006. Due to numerous concerns, including lack of cooperation by the parents and the mother's drug use as well as domestic violence allegations, North Carolina authorities removed the two daughters from the home in December 2006, only a few months before the hearing below. In January 2007, F.G.A, Sr., obtained a divorce from S.A. The hearing on termination of parental rights commenced in March 2007.
By the time of the hearing, F.G.A., Jr., had been in three different foster homes in the more than four years since his birth. He has lived in the last foster home since January 2006, and that family wants to adopt him. During all these years, F.G.A., Sr., had seen the child not more than ten times by his own testimony. F.G.A., Sr., testified that he was unable to have more frequent visits due to the demands of his job and the fact that he lived in North Carolina and needed two travel days to come to New Jersey.
Dr. Andrew P. Brown, III, conducted a psychological evaluation of F.G.A., Sr., on October 21, 2003. The Doctor found no psychopathology or aberrant personality. Nothing he found indicated that F.G.A., Sr., would endanger his children or that he was incapable of parenting them. The Doctor recommended that F.G.A., Sr., be allowed custody of the child pending the Division's determination that he could provide an appropriate residence.
Dr. Karen Wells, who conducted a psychological evaluation of F.G.A., Sr., on January 7, 2007, reached a contrary conclusion, writing in her report that F.G.A., Sr., "has not demonstrated sustained psychological and emotional functioning to attend to the needs of a child." She testified that while F.G.A., Sr., did not have any personal psychopathology he did have "significant psychopathology" with respect to relationships. She indicated that F.G.A., Sr., would need to show a minimum of one year stability in housing and employment and no involvement with S.A. before considering giving him custody of the child.
Dr. Andrew P. Brown, III, conducted a bonding evaluation between F.G.A., Jr., and his foster parents and concluded that F.G.A. "enjoys a very positive relationship with his foster parents and there are strong signs that he perceives [them] as the psychological parents."
A bonding evaluation of F.G.A, Jr., with his biological father and his two foster parents was conducted for the defense by Dr. Lori B. Goldblatt, a psychologist. At that point, F.G.A., Jr., had been with his foster parents for about a year. Although he did not react negatively when each foster parent left, the Doctor stated in her report that she could not determine if he was insufficiently bonded or merely a very flexible child. Indeed, in her report, Dr. Goldblatt described F.G.A, Jr., as "a very outgoing, loving child" who was as affectionate with her as he was with his biological father and his foster parents. She testified that the child had the strongest bond with his biological father. She stated that the child was "very bonded to his foster father, but it appears to me that he is most bonded to his biological father." She concluded that F.G.A., Sr., should be able to provide a proper home for the child provided he obtained permanent housing and did not allow the mother to assume parental duties.
In a lengthy opinion placed on the record, the trial court applied the standards set forth in N.J.S.A. 30:4C-15.1(a) and found by clear and convincing evidence that the termination of F.G.A., Sr.'s parental rights was in the best interests of F.G.A., Jr.
Our review of a decision by the trial court to terminate parental rights is limited, and we will not disturb the factual findings of the trial judge "unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Substantial, competent and credible evidence in the record supports the trial judge's decision, and we find no basis to disturb it. See In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999) (stating that the trial court is in a better position than the appellate court to evaluate the credibility, qualifications and weight to be given an expert's testimony); Cesare v. Cesare, 154 N.J. 392, 413 (1998) (noting that "appellate courts should accord deference to family court factfinding").
In evaluating this record, we have looked at the conduct of the father separate from the conduct of the mother, since the fact that one parent is unfit does not necessarily mean that the other one is also unfit. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 288-89 (2007). However, if the parent's association with the unfit parent creates an unstable and unsafe home for the child, that factor may be considered when weighing the harm to the child under the best interests test. Id. at 288-90.
We note that at the time of the hearing, F.G.A., Sr., had seen this child no more than ten times in a period of four years; he had no stable housing for the child; and he had a long-time pattern of allowing the mother, with her egregious history of drug use, transience, and thefts, to disrupt his home life. The North Carolina authorities conducting a home evaluation for DYFS did not recommend that F.G.A., Jr., be placed in this home, and indeed, only a few months before the hearing, the other two children of this marriage were removed from the home. We recognize that F.G.A., Sr., has found new employment, expects that his housing situation will be rectified within a year, and has divorced the mother. However, as Dr. Wells noted, a period of time (she recommended a year) must go by in order to evaluate whether F.G.A., Sr., is able to sever his relationship with S.A. and provide a stable home for his children. In the meantime, F.G.A., Jr., who has already spent four going on five years in foster care, would be still without a permanent placement. We concur with the trial judge that under the circumstances here, the best interests of the child are met by terminating F.G.A., Sr.'s parental rights.
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