November 18, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF N.K.J., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-131-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 23, 2008
Before Judges Winkelstein and Gilroy.
W.L., the biological father of baby girl N.K.J., born November 15, 2005, appeals from the December 14, 2007 order of the Family Part, terminating his parental rights to his daughter. The parental rights of N.K.J.'s biological mother, M.N., were also terminated, but she does not appeal. We affirm.
In 2004 and 2006, M.N.'s parental rights were terminated to two other children. On November 15, 2005, M.N. gave birth to N.K.J. at Newark Beth Israel Medical Center. On that day, the New Jersey Division of Youth and Family Services (DYFS) received a referral from the hospital alleging substance abuse and neglect by M.N. According to hospital staff, M.N. tested positive for marijuana, and N.K.J.'s test results were pending. In response, DYFS placed a "hospital hold" on N.K.J., prohibiting M.N. from removing the child from the hospital. During DYFS's investigation, M.N. admitted to not having a source of income and not having received prenatal care. M.N. also advised DYFS caseworkers that the individual listed on N.K.J.'s birth certificate was not the child's father, but was her then-current boyfriend. M.N. informed DYFS that her daughter's father was W.L., who was then incarcerated. On November 18, 2005, believing that M.N.'s transient lifestyle was injurious to N.K.J., DYFS filed a complaint for custody. On December 2, 2005, N.K.J. was placed in a foster home where she has since remained. On July 19, 2006, following a paternity test, W.L. was adjudicated N.K.J.'s biological father.
On January 10, 2007, DYFS filed a complaint for guardianship, seeking termination of M.N.'s and W.L.'s parental rights. On April 25, 2007, after M.N. failed to respond to the complaint, a default was entered against her. A trial was conducted in the matter on December 7, and December 14, 2007. Testifying on behalf of DYFS were Dr. Leslie Trott, a psychologist; Husain Tyler, a DYFS case manager; and Nancy Khoury, a DYFS Supervisor and Family Service Specialist II. Although present at trial, defendant neither testified, nor called any witnesses on his behalf. At the conclusion of the second day of trial, Judge Grant rendered an oral decision, supported by a thirty-six page written opinion, terminating both parents' parental rights. A confirming order was entered the same day.
On appeal, W.L. argues:
THE TRIAL COURT IMPROPERLY TOOK JUDICIAL NOTICE OF HEARSAY REPRESENTATIONS OF COUNSEL CONCERNING THE SUITABILITY OF THE FOSTER HOME.
THE APPELLATE DIVISION SHOULD REVERSE THE TERMINATION OF THE FATHER'S PARENTAL RIGHTS BECAUSE THE TRIAL COURT MISTAKENLY SHIFTED THE BURDEN OF PROOF FROM DYFS TO THE DEFENSE AND FAILED TO PROPERLY CONSIDER THE ALTERNATIVE TO TERMINATION OF PARENTAL RIGHTS: PLACEMENT WITH RELATIVES.
THE APPELLATE DIVISION SHOULD REVERSE THE TERMINATION OF THE FATHER'S PARENTAL RIGHTS BECAUSE DYFS FAILED TO PRESENT CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF HIS PARENTAL RIGHTS WILL NOT DO N.K.J. MORE HARM THAN GOOD.
Termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 103 (2008); N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Such actions require proof by clear and convincing evidence. E.P., supra, 196 N.J. at 103. Termination actions brought under N.J.S.A. 30:4C-15.1a, are decided under a four-part "best interests of the child" standard first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-611 (1986), and now codified in N.J.S.A. 30:4C-15.1a. Ibid.
An appellate court should not disturb the "'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)) (alteration in original). Simply stated, "[o]nly when the trial court's conclusions are so'clearly mistaken' or'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
We have considered appellant's arguments in light of the applicable law, and have determined that the arguments are without merit. R. 2:11-3(e)(1)(E). We conclude for the reasons stated by Judge Grant in his thoughtful and comprehensive thirty-six page decision of December 14, 2007, that the evidence clearly and convincingly establishes that N.K.J.'s best interests, assessed under the statutory standard, N.J.S.A. 30:4C-15.1a, warrants termination of appellant's parental rights. R. 2:11-3(e)(1)(A). Nevertheless, we add the following comments.
On July 26, 2006, appellant was arrested on charges of robbery, weapon possession, conspiracy, and carjacking. On August 10, 2007, appellant was found guilty of robbery and sentenced to a five-year term of imprisonment with a four-year and three-month period of parole ineligibility. Appellant's earliest parole date is in late 2010, and his latest release date is in mid-year 2011. Because of his incarceration, appellant has only seen his daughter "once or twice" since her birth.
During the pendency of the action, appellant submitted to a psychological evaluation by Dr. Trott on November 16, 2007. Trott testified that "[w]hile [appellant] retains a significant and sincere interest in his child, he does not have the capability to parent." Specifically, Trott diagnosed appellant with an "antisocial personality disorder" and found that "[h]e showed some minor difficulties with regard to a learning disability that really [do not] contribute to his antisocial functioning[,] [b]ut that significantly impaired his ability to parent." In addition, Trott noted that appellant has "also been involved in some rather aggressive and unsafe behaviors" and "has a lack of insight and [does not] take into consideration how his behaviors impact on himself and others." Trott also determined that "[appellant] appears deceptive and passively resistant to cooperating, showing concrete reasoning and lack of appropriate judgment skills." Trott opined to a degree of psychological certainty that appellant "does not have the capability to parent" and will not gain that ability in the near future.
Appellant does not contest that DYFS proved the first two prongs of the best interests of the child test by clear and convincing evidence. Instead, appellant challenges the court's determination that DYFS properly proved the third and fourth prongs of the best interests standard. Appellant argues that "[t]he court failed to place the burden of proof on DYFS to show that there were no viable alternatives to the termination of [his] parental rights which would serve N.K.J.'s best interest." Appellant contends that the court shifted the burden to him to come forward and prove that L.M.L., the child's paternal great-grandmother, was physically well enough to care for another child. Similarly, appellant asserts that the court's determination that T.G., his sister, could not properly care for his daughter was not supported by credible evidence in the record. We disagree.
N.J.S.A. 30:4C-27.6a provides that an individual cannot become a foster parent "unless the person is licensed by the [Department of Children and Families] pursuant to this act." Furthermore, the prospective foster parent "shall be in sufficient physical, mental, and emotional health to perform his or her duties satisfactorily." N.J.A.C. 10:122C-5.1(a)2.
Concerning L.M.L., the court considered the testimonies of DYFS caseworkers regarding L.M.L's health, in addition to the fact that she never appealed DYFS's prior decision ruling her out as a placement option. Appellant did not present any evidence to the contrary. Accordingly, the court did not shift the burden to appellant, but rather accepted the unrefuted evidence presented by DYFS as to L.M.L.'s medical unsuitability to act as a foster parent.
Appellant contends that the court erred in not considering L.M.L. as a placement option because she was already an approved, licensed foster parent for another child. However, while DYFS offered evidence in support of its position that
L.M.L.'s home was in "suspended" status with its East Orange office when she was considered as a potential foster parent, appellant offered no proof that his grandmother was properly licensed. We are satisfied the court correctly determined that
L.M.L. was not a viable option for N.K.J.'s placement. Appellant also asserts that the court failed to consider defendant's sister, T.G., as an alternative to parental termination. DYFS ruled out T.G. because she cohabitated with another licensed foster parent who already cared for siX children, and because T.G. could not financially secure her own residence. Appellant contends that, even if T.G.'s home had reached placement capacity, she should have been granted a waiver to add one more foster child to the home. Not so.
N.J.A.C. 10:122C-2.1(c) provides that "[i]f there is more than one resource family parent applicant in the household, the applicants shall submit a single application for a single license." Additionally, for placement after February 6, 2006, each licensed home can contain "[n]o more than six children in total, including children in placement and all other children residing in the home". N.J.A.C. 10:122C-1.4(a)1ii. However, the exception is that DYFS can waive this capacity limit "if necessary to keep sibling groups intact or to serve the best interests of the children who are or may be placed in the home." N.J.A.C. 10:122C-1.4(b). The exception is not applicable here. Because of her cohabitation with a licensed foster parent who already acted as a resource parent for six foster children, T.G. was not available as a placement option. N.J.A.C. 10:122C-1.4(b).
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