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New Jersey Division of Youth and Family Services v. M.L.K.

March 20, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
M.L.K., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF A.V.K., A MINOR.



On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Ocean County, Docket No. FG-15-26-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: February 11, 2009

Before Judges Axelrad, Lihotz and Messano.

M.L.K. appeals from the May 9, 2008 Family Part judgment terminating his parental rights to his two-year-old daughter, A.V.K., and awarding guardianship of the child to the Division of Youth and Family Services (DYFS) following a contested hearing. L.D.I., the mother of A.V.K., has not appealed the termination of her parental rights to her daughter.*fn1

On appeal, M.L.K. contends that DYFS failed to prove by clear and convincing evidence the requisite statutory prongs to establish that the best interests of A.V.K. required severance of his parental ties. The Law Guardian supports termination of the father's parental rights. After considering the record and briefs in light of the applicable law, we are satisfied the trial judge's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., New Jersey Div. of Youth and Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part, and remanded, 179 N.J. 264 (2004).

DYFS became involved with the family in April 2005, when it received a referral that L.D.I. would routinely leave seven-month-old M.K., Jr. with a friend for days without food or diapers. The baby was also not up-to-date with his shots. At the time, L.D.I. and the baby were living at the maternal grandmother's house. The maternal grandmother advised DYFS that she had observed M.L.K. and L.D.I. arguing, and that L.D.I. informed her M.L.K. had hit her. During the course of the investigation, DYFS also learned that both parents had a history of heroin use and both had been in substance abuse treatment. The findings of DYFS also included concerns about M.L.K.'s criminal history and the allegations of his domestic violence against L.D.I. Pursuant to the parental consents, M.K., Jr. was placed with his paternal grandparents, Mr. and Mr. W., until January 5, 2006, when the court entered an order transferring legal and physical custody of him back to his mother.

In October 2006, DYFS placed M.K., Jr. in the temporary care of his maternal grandmother pursuant to an emergency removal after learning that L.D.I. had been arrested for possession of controlled substances. On November 1, 2006, the court found both parents abused and neglected M.K., Jr. - L.D.I. by her drug abuse and arrest, and M.L.K. by his drug involvement and failure to provide support for the child and failure to participate in services. In November, DYFS learned that L.D.I. was permitted unsupervised contact with her son in violation of the court order. DYFS then placed M.K., Jr. back into the home of his paternal grandparents, with whom he has resided since that time. While investigating this referral, DYFS became aware that L.D.I. was pregnant with A.V.K.

A.V.K. was born on February 11, 2007, with both her and L.D.I. testing positive for methadone. The baby was classified as "medically fragile" due to drug exposure and withdrawal symptoms, as well as exposure to Hepatitis C. A.V.K. was also determined to be developmentally delayed. DYFS was awarded legal custody of A.V.K. on February 15, 2007. M.L.K. was present at the hospital and advised the caseworker that he had been a heroin addict but had been drug-free for five years and was currently on probation, which would end in June 2007. He reported he did not think he could handle a newborn, particularly since he worked full-time and lived with his paternal grandmother. He believed the best plan for A.V.K. would be to either remain with her mother in an in-patient drug program, so they could bond, or to live with his parents. During a visit shortly after the baby's birth, however, the paternal grandparents ruled themselves out as caregivers for A.V.K., stating they already had M.K., Jr. and another foster child in their home and did not have room for another child. A.V.K. was discharged from the hospital on March 27, 2007, and was placed in specialized foster care with Mr. and Mrs. U., with whom she presently resides.

DYFS continued to investigate a number of relatives and friends as alternative caregivers for A.V.K. On April 13, 2007, during a DYFS visit regarding M.K., Jr., Mr. W. advised the caseworker he and his wife would find a way to take A.V.K. before she was adopted by strangers; moreover, there were extensive family members who would be willing to care for the child. The case manager asked the paternal grandfather to have those relatives contact DYFS. In July 2007, the paternal grandparents ruled themselves out as caregivers because they could not provide the necessary care for the child in light of her medical issues. On September 11, 2007, R.K., a paternal aunt, informed the caseworker she could not be a permanent caregiver, as did Mr. and Mrs. S., M.L.K.'s cousins. Following a meeting with DYFS on November 8, 2007, Mr. and Mrs. D., family friends of the child's mother, sent a letter withdrawing their request to be considered as a placement for A.V.K. due to her special needs and future medical requirements, expressing the belief it would be in her best interest to remain in her current placement. In December 2007, DYFS ruled out the paternal aunt L.M. and paternal grandfather H.K., due to disqualifiers related to domestic violence incidents. DYFS sent out letters to each of these individuals.

On November 9, 2007, DYFS filed a guardianship complaint seeking to terminate the parental rights of L.D.I. and M.L.K. to both M.K., Jr. and A.V.K. The trial took place over five days in February 2008, April 2008, and May 2008. On the first day of trial, paternal cousins Mr. and Mrs. S. moved to intervene in the guardianship action, having re-expressed an interest to DYFS in January about caring for A.V.K. The court denied the motion because the movants did not exhaust the administrative remedies referenced in the rule-out letter they received in September, and dismissed their complaint for custody. During the trial, the court heard testimony from Amy Schmiegl, Janette deMonch, and Stephanie Ronau, DYFS caseworkers; Dr. Robert Puglia, a clinical psychologist retained by DYFS who evaluated M.L.K.; Dr. Maureen Santina, a psychologist retained by the Law Guardian who conducted a bonding evaluation between A.V.K. and her foster mother; and both parents.*fn2 Having observed the demeanor and considered the testimony of the lay and expert witnesses, examined the exhibits entered into evidence, and heard arguments by counsel, Judge Strelecki concluded that A.V.K.'s best interests required severance of M.L.K.'s parental ties. The judge made findings of fact and credibility assessments, noted the applicable law, and found DYFS had established by clear and convincing evidence the four-prong test for termination of parental rights as set forth in New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-610 (1986), and as codified in N.J.S.A. 30:4C-15.1.

I.

We begin by noting some basic principles. The scope of our review of a trial court's decision to terminate parental rights is limited. In Re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); see also, In Re Guardianship of Jordan, 336 N.J. Super. 270, 273 (App. Div. 2001). We also have a limited scope of review of the Family Part's factual findings. In reviewing the factual findings and conclusions of a trial court, we are obliged to accord deference to the trial judge's credibility determinations and the judge's "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. A.R.G., supra, 361 N.J. Super. at 78 (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." New Jersey Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). We rely upon the trial court's acceptance of the ...


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