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Division of Youth and Family Services v. A.J.

April 15, 2009

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
A.J. DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF L.T., A MINOR.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FG-15-21-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 24, 2009

Before Judges Parker, Yannotti and LeWinn.

Defendant A.J. appeals from the May 13, 2008 order of the Family Part terminating his parental rights to L.T.*fn1 and awarding guardianship of the child to the Division of Youth and Family Services (DYFS). For the reasons that follow, we affirm.

L.T. was born to S.G. on August 22, 2006. At the time of L.T's birth, defendant had not been identified as her natural father. Defendant was incarcerated in state prison as of July 21, 2006, and had a projected release date of October 2008 at the time of trial. He first learned that he was L.T.'s father from the results of a paternity test administered in September 2007.

L.T. was removed from S.G.'s custody on January 3, 2007. In July 2007, L.T. was placed with foster parents who also had custody of her half-brother, Z.G.*fn2 Trial on DYFS's complaint for guardianship of L.T. was held on April 2, 2008. S.G. did not appear at trial. Defendant was brought to trial from custody; as of that date, defendant had never seen L.T.

DYFS caseworker Megan Clemente testified that S.G. initially misidentified another man as L.T.'s biological father. It was not until June 11, 2007, that S.G. identified defendant as the biological father. DYFS thereupon arranged to have a paternity test administered to defendant in state prison and, as noted, he was positively identified as L.T.'s biological father in September 2007. On September 18, 2007, DYFS filed an amended guardianship complaint naming A.J. as a defendant.

Clemente testified that, because defendant was incarcerated, DYFS offered him no reunification services; however, DYFS did arrange for Dr. Alan Lee, Psy. D., to conduct a psychological evaluation of defendant on March 7, 2008. Defendant's attorney objected to Dr. Lee's testimony at trial because she had just received a copy of the doctor's evaluation. The trial judge ruled:

Okay. I'm going to allow Dr. Lee to testify and then, after he testifies, if you [counsel for A.J.] would still like to speak to a therapist and have [him/her] look at it to assist you with it, then I will allow you the time.

Dr. Lee testified that, although he found no evidence of mental illness, personality disorder or cognitive deficiency in defendant, he nonetheless opined that defendant should not be considered as a caregiver for L.T. Dr. Lee stated:

In general, [defendant], who, at the time, was a 36-year-old, unmarried birth father of . . . [L.T.], had revealed a fairly lengthy history of child and adolescent behavioral problems and a fairly extensive adult criminal history. He described some significant periods of illicit drug usage including marijuana and cocaine.

He largely denied any kind of prominent mental health problems per se. For example, there did not appear to be evidence of severe depression or any kind of schizophrenic condition. However, the evaluation did reflect and note him to have a number of rather ingrained and pervasive maladaptive personality character traits that seem to contribute to his difficulties sustaining himself in the community.

He had described [a] fairly significant adult criminal history with at least three periods of being incarcerated. Some of these [were] for fairly protracted periods of time, such as from 1992 to 1998, again from 2000 to 2004, and then, most recently and related to the instant offense, from April 2006 to the time that I had evaluated him.

In short[,] and in synthesizing and integrating the information available related to the issue of parenting and caretaking, I did not support [defendant] being an independent care giver. As would be obvious at the time of the evaluation, he was incarcerated, which would certainly compromise his ability to independently care for a child, obviously, in prison. However, I would also offer that, even if he was not incarcerated, many of these presenting problems, the history of substance abuse, criminal issues, criminal recidivism and general life irresponsibility did not support him to be an independent care giver to a minor child.

Defendant's attorney briefly cross-examined Dr. Lee. She did not, however, request time to retain an expert to conduct an evaluation on behalf of defendant, as the judge had offered. L.T.'s current foster home placement was described by Clemente as follows:

There's the foster mother, [L.T.]'s biological brother, [Z.G.], as well as two other foster children who are very close in age to [L.T.]. She goes to day care. She's up to date on her immunizations. Her day care and her pediatrician do not have any concerns about the care she receives.

Her day care calls her Smiley 'cause they say she's always happy and smiling. . . . She's doing very well. . . .

[S]he went there . . . before she turned one. So, she wasn't talking or walking. But now, . . . she's up running around, talking. She can almost have a conversation with you. She's a very happy little girl.

Clemente stated that DYFS had no "concerns regarding this foster placement[.]"

Defendant offered his mother as a caretaker for L.T., adding that he intended to live with his mother upon his release from custody. Clemente testified that DYFS offered the paternal grandmother visitation with L.T. but, after attending one visit, she had no further contact with DYFS. Although DYFS never sent the grandmother a formal "rule-out" letter, Clemente testified that DYFS did send her a letter ...


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