On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-134-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Axelrad, Payne and Sapp-Peterson.
Defendant O.O., the biological father of N.Z.S. (fictitiously, Nate), appeals from an order terminating his parental rights to his son, now four and one-half years of age, with whom he has never had any relationship.*fn1 In his appeal, the father makes the following arguments:
THE FOUR PRONGS OF THE 'BEST INTEREST TEST' WERE NOT PROVEN BY CLEAR AND CONVINCING EVIDENCE.
(A) THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT'S "ABANDONMENT" AND INCARCERATIONS CONSTITUTED "HARM" UNDER THE FIRST PRONG AND "UNFITNESS" UNDER THE SECOND PRONG.
(B) THE TRIAL COURT ERRED IN FINDING THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO THE DEFENDANT UNDER THE THIRD PRONG.
(C) THE TRIAL COURT ERRED IN FINDING THAT THE DIVISION CLEARLY AND CONVINCINGLY ESTABLISHED THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.
After consideration of O.O.'s arguments in light of the record in the matter and applicable case law, we affirm.
The following basically-uncontested facts are relevant to our decision. Nate was born on August 9, 2003. He was placed on social hold shortly after his birth as the result of his mother's history of involvement with the Division of Youth and Family Services (DYFS), stemming from her addiction to drugs and alcohol, and was not discharged to her care. Instead, on August 14, 2003, DYFS filed a verified complaint seeking an order to show cause why it should not obtain custody of the child. In its complaint, O.O. was named as the father of the child. Custody was granted to DYFS.
On October 8, 2003, Nate was discharged from the hospital into the care of a foster family. On September 10, 2004, at one year of age, Nate was placed with his current foster father, who seeks to adopt him.
At the time of Nate's birth, his mother identified O.O. to DYFS as the child's biological father, provided DYFS with contact information, and stated that the father was aware of the pregnancy. O.O. was notified of and appeared at a Family Part hearing conducted on September 17, 2003. At that time, O.O. acknowledged to DYFS that he was Nate's father, but he demanded a confirmatory paternity test, which was ordered to take place. Additionally, O.O. stated to the DYFS worker present at the hearing that he planned for the child to live with him, but that his mother, presently residing in Toronto, would come to the United States to serve as his back-up care giver. DYFS requested that O.O. provide identifying information regarding his mother upon her arrival in this country so that a background check could be completed.
A paternity test was arranged by DYFS for October 21, 2003, and its date was confirmed with O.O. by telephone calls to his workplace and by a letter to his home address. However, O.O. did not appear for the test and did not call DYFS to reschedule it. Despite efforts to reschedule the appointment and to inform O.O. of the new date through messages left with his employer and letters to his last known address, O.O. did not respond. Nor did he seek information regarding Nate. Further, O.O. failed to provide DYFS with any of the information that it had requested regarding his mother.
DYFS initiated a search for O.O. in October 2004, and although they located a relative who agreed to aid in the agency's efforts, conducting a family meeting to locate him, O.O.'s location was not provided. Postal and driver's license checks confirmed the address that O.O. had initially given to the DYFS worker in September 2003.
In November 2003, O.O. was incarcerated on charges of second-degree aggravated assault and first-degree robbery, and he did not make bail until December 24, 2004. He remained free on bail until pleading guilty to second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), on October 26, 2005, at which point he was returned to custody. He was sentenced on February 10, 2006 to five years of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He remains incarcerated.
On March 31, 2005, while free on bail, O.O. contacted the Division, but refused to provide residence information until a paternity test had confirmed that he was the father of Nate. A DNA sample was collected on April 26, 2005, and results confirming that he was the child's father were received on May 17, 2005. O.O. did not appear at a court hearing in the matter, conducted on May 16, 2005, despite knowledge of the hearing date, stating to a DYFS worker that he did not wish to attend court proceedings until his paternity was confirmed.
After O.O. obtained confirmation of his status, almost two years after Nate's birth, O.O. again expressed an interest in either taking custody of Nate or having him placed with his mother. However, DYFS rejected the former alternative because of O.O.'s pending criminal charges. Additionally, it conditioned any visitation by O.O. upon his completion of a psychological evaluation. Because O.O.'s mother remained in Canada and no contact information was provided, placement with her was not feasible.
The Division scheduled O.O.'s psychological evaluation for July 29, 2005, but was unable to notify him of the appointment, because its letter to him, addressed to the residence that he had provided in 2003, was returned unclaimed. A further appointment for an evaluation was scheduled for August 19, 2005, but O.O. declined to attend, stating that it conflicted with a class that he could not miss. O.O. did not ...