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New Jersey Division of Youth and Family Services v. A.F.F.

April 17, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
A.F.F., DEFENDANT-APPELLANT,
IN THE MATTER OF THE GUARDIANSHIP OF A.H.R. A MINOR.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-59-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 25, 2009

Before Judges Axelrad, Lihotz and Messano.

Defendant A.F.F. appeals from an August 4, 2008 Family Part judgment terminating his parental rights and awarding guardianship of his child, A.H.R., to the Division of Youth and Family Services (DYFS or the Division) for the purpose of consenting to adoption. In the same proceeding, DYFS obtained a judgment terminating the parental rights of the child's mother, A.R., who has not appealed.

A.F.F. raises the following issues for our review:

POINT I

THE TRIAL COURT'S CONDUCT OF THE PROCEEDINGS DEPRIVED DEFENDANT OF A FAIR TRIAL.

A. The Trial Court Abdicated Its Responsibility to Decide Placement of A.H.R.

B. The Court Abandoned Its Role as Neutral Arbiter and Inappropriately Interjected Itself Into the Proceedings.

C. "Unfounded" Referrals Were Not Relevant, Competent Evidence and Should Not Have Been Admitted into Evidence.

POINT II

DYFS FAILED TO PROVE ALL FOUR PRONGS OF THE BEST INTEREST TEST BY CLEAR AND CONVINCING EVIDENCE.

A. DYFS failed to prove that defendant harmed A.H.R.

B. Defendant is [a]ble to provide a safe and stable home with the assistance of his grandmother, rendering termination premature.

C. The [D]ivision has not made reasonable efforts to help the parent correct the circumstances that led to the child's placement outside the home and the court has not considered alternatives to termination of parental rights.

D. A finding that termination will not do more harm than good is a self-fulfilling prophecy when the only life the child has known is the life with the foster parents.

We remain mindful that the federal and state constitutions protect the integrity of the family unit. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed. 2d 551, 558-59 (1972); New Jersey Div. of Youth and Fam. Servs. v. A.W., 103 N.J. 591, 599 (1986). Nevertheless, the State's role of parens patriae historically imposes a responsibility to protect the welfare of children from the probability of serious physical, emotional or psychological harm resulting from the actions or omissions of their parents. Ibid. See also N.J.S.A. 9:6-8.8a. Thus, the fundamental right of a parent to enjoy a relationship with a child is not absolute. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed. 2d 599, 606 (1982); In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999); In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

In this light, we have carefully considered the arguments raised on appeal challenging the judgment to terminate parental rights. Based upon the record and applicable legal standards, we affirm.

I.

The Division was contacted by hospital authorities on June 5, 2006, when A.H.R. tested positive for cocaine at birth. A.F.F. was present in the hospital when A.H.R. was born. From 2001 to 2005, A.F.F. and A.R. were romantically involved and resided together with their older child, A.F., Jr., born on January 16, 2001. Thereafter, they separated, but A.R. asked the hospital to contact A.F.F. when she arrived in labor.

The next day, a Division worker arrived at the hospital and spoke to A.H.R.'s parents. Initially, neither parent articulated a desire to personally care for the child. A.R. planned to place the child for private adoption with the Spence Chapin Adoption Agency and had already signed an initial placement agreement. A.F.F. lost his temper when the DYFS worker arrived and he was escorted from the hospital. He later stated he knew A.R. wanted to place the child for adoption, which he opposed, but did not know he needed to step forward to take A.H.R. home with him. The medically fragile baby remained hospitalized for two months suffering from narcotics withdrawal.

DYFS initially interceded with the family on January 15, 2003, when it learned A.F., Jr. was not properly immunized and the family residence was believed to be uninhabitable. The Division filed protective services litigation, pursuant to Title 30 with respect to A.F., Jr. DYFS caseworker Patricia Leger worked with the family and the Division extended services including: domestic violence counseling, anger management classes, Family Preservation Services (FPS), counseling at Catholic Charities, psychological evaluations, and drug treatment programs. In April 2004, the protective services litigation was dismissed, as the Division and the court were satisfied the family was stable, the parents were cooperating with offered services, and the child was safe.

A second child, A.F., was born to A.R. on December 28, 2004. A.F.F. is not the child's father, and the child is not involved in this litigation.*fn1 The Division maintained contact with the family to continue services and investigate subsequent referrals suggesting A.F.F. engaged in acts of domestic violence toward A.R. No additional litigation was commenced until A.H.R. was born.

When A.R. changed her intention to release A.H.R. for adoption, DYFS exercised an emergency removal of the child, pursuant to N.J.S.A. 9:6-8.29 and N.J.S.A. 9:6-8.30, and, on August 8, 2006, the Division filed a Title 9 complaint listing both A.R. and A.F.F. as defendants. The Division sought custody, care, and supervision of A.H.R. and care and supervision of A.F., Jr., who remained in his mother's custody, specifically conditioned on her continued participation in a drug rehabilitation and treatment program at the Children at Risk Resources Intervention Program. On August 8, 2006, A.H.R. was placed in a resource family home, where she remains.

A.F.F., although properly served with the complaint and other pleadings, did not appear at the initial hearing or the first scheduled visit with A.H.R. During this time period, he had been arrested for possession of cocaine and later incarcerated for a violation of probation. When A.F.F. was released from prison in January 2007, he ...


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