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


May 6, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-23-08.

Per curiam.



Submitted March 31, 2009

Before Judges Graves and Espinosa.

Defendant W.F. appeals from a final judgment entered on January 22, 2008, terminating his parental rights to his daughter, S.F. (fictitiously, Samantha), who was born on February 28, 2004. We affirm.

Parents have a constitutionally protected "fundamental liberty interest" in raising their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed. 2d 599, 606 (1982). Nevertheless, "the right of parents to be free from governmental intrusion is not absolute. The State as parens patriae may act to protect minor children from serious physical and emotional harm. This may require a partial or complete severance of the parent-child relationship." New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 599 (1986) (internal quotation omitted).

While our Legislature has recognized the importance of strengthening and preserving the integrity of family life, it has also recognized that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Under this standard, a parent's right to a relationship with a child may be terminated when the State proves each of the following factors by clear and convincing evidence:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1(a).]

These four requirements are neither discrete nor separate.

"[T]hey relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. In the present matter, Samantha's mother, L.K., provided an identified surrender on October 18, 2007, so that Samantha could be adopted by D.C. and J.C., her maternal great aunt and uncle; the court terminated the parental rights of W.F., Samantha's father on January 22, 2008; and Samantha was adopted by D.C. and J.C. on May 29, 2008.

On August 31, 2006, when Samantha was two-and-one-half- years old, the New Jersey Division of Youth and Family Services (Division) filed an order to show cause and complaint for her protection, care, and custody. According to the Division's complaint, a Division worker executed an emergency removal on August 29, 2006, because Samantha's mother was being terminated from the Homeless Solutions Program, and she had no place to live, after testing positive for cocaine and morphine. In addition, the Division reported that defendant, W.F., Samantha's father, "is currently incarcerated at a federal penitentiary." The court placed Samantha in the care and custody of the Division on August 31, 2006, and it ordered the parents to provide the Division with the names and addresses of "any relatives who may be available as potential caregivers for the child." On October 5, 2006, the Division placed Samantha with D.C. and J.C., her maternal great aunt and uncle.

On October 26, 2006, L.K. and W.F. were both represented by counsel when they voluntarily agreed to waive their right to a fact-finding hearing and stipulated that they abused or neglected Samantha. L.K. acknowledged that her substance abuse problem placed Samantha at risk, and W.F. admitted that he was unable to care for Samantha due to his incarceration at the Allenwood Federal Correctional Facility in Pennsylvania. W.F. participated in the hearing by speakerphone, and he was represented by Robert Ziese.

When the matter returned to court for a permanency hearing on July 12, 2007, L.K. and W.F. were both represented, and W.F. participated by telephone from the federal prison in Pennsylvania. The court found that the Division's permanency plan for Samantha----termination of parental rights and adoption by her maternal great aunt and uncle----was appropriate, and the court approved the plan. By then, Samantha had been in placement with her relatives for more than nine months. On September 18, 2007, the Division filed a complaint for guardianship. According to the complaint, a paternity test on June 21, 2007, established that W.F., who was born in Honduras on April 27, 1983, was Samantha's father. With respect to W.F., the complaint stated:

[W.F.] has failed to implement a permanent plan for [Samantha], has effectively abandoned the child to the care of others, and has substantially failed to perform the regular and expected functions of care and support for the child. He has an extensive criminal history, including a conviction for engaging in sexual conduct which would impair or debauch the morals of a child under the age of sixteen. He is currently incarcerated at a federal prison and is scheduled for deportation. To place [Samantha] in his care would expose the child to an unacceptable level of harm or risk of harm.

The complaint further alleged that Samantha's mother, L.K., failed to comply with treatment for substance abuse, and she failed to maintain a safe and stable home for Samantha. At a court hearing on October 18, 2007, L.K. provided an identified surrender so that Samantha could be adopted by D.C. and J.C. During that hearing, the Division's attorney advised the court that D.C. and J.C. had received a letter from defendant stating "that he intends to do the same."

W.F. was served with the complaint for guardianship together with an application for the appointment of counsel on November 8, 2007. However, as evidenced by W.F.'s letter in October, and the court proceedings on December 6, 2007, W.F. did not apply for an attorney because he intended to surrender his parental rights. During the court hearing on December 6, 2007, W.F. acknowledged that he had discussed his decision to voluntarily surrender his parental rights with Robert Zeiss, who had previously represented him, and W.F. testified he was willing to surrender his parental rights:

THE DEFENDANT: When you asked me about . . . [whether] I feel that was in the best interest of my daughter, I say, no, right? But I don't have no choice. I'm going to give up my rights. I don't have no choice.

THE COURT: Well, I . . . don't want you to feel this Court is forcing you to do anything. You have to -- if you're not doing it freely and voluntarily, then I'm not going to accept your surrender.

I understand it's not what you would like, but under the circumstances that you are in, are you prepared to do a voluntary surrender with the clear understanding that you do so because you feel it's in the best interest of your daughter?


THE COURT: What is your answer to that?


THE COURT: All right. I'm going to ask Ms. DeGuilo as the deputy attorney general to ask you some questions so we can be certain you understand what you're doing. And we can have all of this recorded.

Ms. DeGuilo, please.


Q: [W.F.], the answers to the questions are yes or no, okay?

Did you hear me?

A: Yes.

Q: Okay. Do you wish to surrender your parental rights to [Samantha] so that she may be adopted by [D.C. and J.C.]?

A: Yes.

Q: Are you taking any medication, drugs, or alcohol that would affect your ability to make this decision today?

A: No.

Q: . . . Do you understand that in surrendering your parental rights . . . the Division's plan is for [Samantha] to be adopted by [D.C. and J.C.]?

A: Yes.

Q: Are you making the decision because it's in [Samantha's] best interest?

A: What about if I don't answer the question?

THE COURT: Well, you got to --

A: Just leave it blank.

THE COURT: Are you doing this because you don't care about your daughter or are you doing it because you feel under all of the circumstances, this is best for her?

A: Okay. I guess it's the best for my daughter.

Q: Do you understand that if the Court accepts your surrender today, you can't change your mind?

A: I understand that.

THE COURT: Anything else?

Q: Do you understand that you won't be able to return to court after today, that your decision to surrender is final.

A: I don't understand that.

THE COURT: You do or you do not?


After W.F. stated he did not understand that he could not return to court once he surrendered his parental rights, the court asked W.F. if he wanted to complete the application for the appointment of counsel. W.F. replied: "I don't need a lawyer because I'm not thinking about to keep fighting this case, your Honor." Nevertheless, because W.F. had "some reservations," the court was unwilling to accept the surrender on December 6, 2007, and the matter was scheduled for a proof hearing.

When the proof hearing took place on January 22, 2008, Samantha was almost four years old, and she had been living with her relatives since October 5, 2006. The Division case manager testified that D.C. and J.C. were anxious to adopt Samantha and confirmed she was "thriving and doing wonderfully." The case manager also identified P-3 in evidence as "documentation from the U.S. Department of Justice," which included a presentence report with the following information:

[W.F.] is a native and citizen of Honduras. On May 15, 2003, [W.F.] was found guilty in New Jersey Superior Court, Morris County Law Division, of engaging in sexual contact which would impair or debauch the morals of a child under the age of 16, in violation of New Jersey Statute 2C:24-4, and sentenced to a term of 192 days imprisonment to be followed by three years probation. This conviction for sexual abuse of a minor constitutes an aggravated felony as defined in 8 U.S.C. § 1101(a)(43).

On July 23, 2003, [W.F.] was apprehended in Morristown, New Jersey, by Immigration and Customs Enforcement. While reporting to probation, [W.F.] admitted to his probation officer that he was an illegal alien, and ICE was subsequently contacted.

On September 18, 2003, [W.F.] was deported from the United States to Honduras, pursuant to an order of deportation after his conviction for the crime described above. On August 11, 2004, [W.F.] was arrested by law enforcement officials in Morris County, New Jersey. He was charged by the Chatham Township Police Department for the following charges: threaten to kill, possession of weapon for unlawful purpose, hinder apprehension, assault on police, resisting arrest, and possession of weapon. A fingerprint analysis showed that he was the same individual who was convicted of the offense described above and who was deported on September 18, 2003.

W.F. participated in the proof hearing by telephone. The court advised him of his right to cross-examine the case manager and to make a statement. W.F. stated that his family was "going to provide a home for [Samantha] and everything." However, the case manager testified that she had never been contacted by any of W.F.'s relatives.

In an oral decision, the court found that W.F. was "not in a position to care for his child" and, except for a short period of time after Samantha was born, he had "not cared for her." The court also found that the Division had presented compelling evidence to satisfy each of the four statutory prongs under N.J.S.A. 30:4C-15.1(a), and that it was in Samantha's best interest to terminate W.F.'s parental rights so that Samantha could be adopted by D.C. and J.C. The judgment of guardianship was signed on January 22, 2008, and Samantha was adopted by D.C. and J.C., her maternal great aunt and uncle, on May 29, 2008. On appeal, W.F. claims the Division failed to prove, by clear and convincing evidence, that his parental rights should be terminated. We do not agree. "Clearly the incarceration of a parent is a relevant factor in determining whether the parent- child relationship may be terminated." In re Adoption of Children by L.A.S., 134 N.J. 127, 135 (1993). And we have recognized "the difficulty and likely futility of providing services to a person in custody." N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 535-36 (App. Div. 2006). In this case, W.F. was incarcerated in a federal penitentiary in Pennsylvania awaiting deportation to Honduras for a second time, and there was no evidence to demonstrate that W.F. or any of his relatives would be able to properly parent Samantha in the foreseeable future. Moreover, because he was convicted of a crime under N.J.S.A. 2C:24-4, W.F. was not entitled to custody or visitation rights "except upon a showing by clear and convincing evidence" that it would be in Samantha's best interest for such rights to be awarded. N.J.S.A. 9:2-4.1(a).

Under these circumstances, we are satisfied that the court's findings are amply supported by the record and that the matter was correctly decided.



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