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Division of Youth and Family Services v. V.D.

June 24, 2008

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
V.D., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF S.A.M.D., A MINOR.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-168-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 21, 2008

Before Judges Lintner, Sabatino, and Alvarez.

Defendant, V.D., appeals from a May 29, 2007 judgment of guardianship rendered after trial, terminating her parental rights in her daughter, S.D., who was born May 31, 2005. We affirm.

When S.D. was born, she weighed four pounds, eleven ounces and had been exposed to cocaine and methadone. On June 14, 2005, pursuant to notice of emergency removal, N.J.S.A. 9:6-8.29 and 9:6-8.30, the child was placed in the care of plaintiff Division of Youth and Family Services (the Division). V.D. appeared at the July 11, 2005 Order to Show Cause hearing, and was ordered to undergo psychological and drug evaluations. Visitation was ordered. As V.D. requested, S.D. was placed with V.D.'s sister, L.W.

V.D. identified S.D.'s father as F.M. He was served with the notice of emergency removal, as well as the order to show cause. He appeared in court on July 11, 2005, but did not appear at the subsequent fact finding hearing on October 20, 2005, nor did he appear at the permanency hearing on January 13, 2006. His whereabouts continue to be unknown, and as a result he has not been served with a copy of the guardianship complaint.

When S.D. was born, V.D. was still married to N.D. N.D. has informed the Division that S.D. could not be his child, as the parties have been separated a number of years, and that he had no interest in the outcome of the proceedings. The trial court found the presumption that N.D. was S.D.'s father based on their marriage to be overcome by clear and convincing evidence consisting of statements made by F.M., V.D., and N.D., in addition to N.D.'s refusal to participate in the proceedings.

V.D. disappeared subsequent to the July 11, 2005 order to show cause, and did not participate in scheduled court hearings nor in visitation. On March 9, 2006, the Division filed a guardianship complaint, and V.D. did not appear on the initial return date. On September 14, 2006, she appeared in court for the first time since July 11, 2005. She advised she had been living in an inpatient drug treatment program in Rhinebeck, New York, since July 11, 2006. Supervised visitation was then scheduled bi-weekly. Trial was conducted over three days in April 2007.

On appeal, V.D. raises the following issues:

POINT I

V.D.'S PARENTAL RIGHTS SHOULD NOT BE TERMINATED BECAUSE THE FINDINGS OF THE TRIAL JUDGE AND THE EVIDENCE ADMITTED AT TRIAL DID NOT SUPPORT A LEGAL CONCLUSION THAT ALL FOUR PRONGS OF THE BEST INTEREST TEST HAD BEEN PROVEN BY CLEAR AND CONVINCING EVIDENCE

A. EACH PRONG OF THE N.J.S.A. 30:4C-15.1a TEST MUST BE MET BEFORE A MOTHER'S RIGHTS TO HER DAUGHTER MAY ...


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