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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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.
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 ...