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New Jersey Division of Youth and Family Services v. K.H.

May 19, 2009

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



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-20-65-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 12, 2009

Before Judges Carchman, R. B. Coleman and Simonelli.

Defendant K.H., Sr. appeals from a February 11, 2008 order by the Chancery Division, Family Part, which terminated his parental rights to his son K.H., Jr. (Kevin).*fn1 Kevin's mother, C.B., has a long history of substance abuse which continued throughout the pendency of this case. Her parental rights were terminated by default. She has not appealed that decision. Based on our careful review of the record, we conclude that there is ample evidence to support the trial court's decision as to defendant. We affirm.

We briefly state the relevant facts. On March 1, 2005, Kevin was born premature, with medical problems and with heroin, cocaine and methadone in his system. He was placed in foster care pursuant to parental consent before he was released from the hospital. Defendant has a drug-related criminal history that includes two arrests for possession of a controlled dangerous substance (CDS) in August 2006 and February 2007, and another arrest in 2007 for violation of probation. The record supports that he has a history of drug use, although he denies it.

For almost two years, defendant made no efforts towards reunification, failing to comply with services ordered by the court and offered by the Division of Youth and Family Services (DYFS or Division). While defendant now blames his delayed compliance on scheduling conflicts and lack of notice, the record shows that the Division made extensive efforts to provide services to defendant. Moreover, defendant admitted that the lengthy delay in seeking reunification was, in part, the result of him not taking the matter seriously and assuming that his sister would get custody of Kevin.

In addition, the record shows that defendant avoided drug screenings and submitted water in his urine samples. He has no stable housing and changed addresses several times, living at the homes of different people. During the guardianship trial, he spent two months in jail and was awaiting a determination as to violation of probation for a prior sentence.

Kevin never lived with his parents. Not unexpectedly, both the Division's and defendant's own expert agreed that Kevin does not have a significant bond to defendant. By the end of the guardianship trial, Kevin had been with his current foster parents for one year, and he is thriving in their care.

On appeal defendant makes the following arguments:

THE TRIAL COURT APPLIED INCORRECT LEGAL STANDARDS TO THE MATTER AND AS A RESULT ERRED IN TERMINATING K.H.'S PARENTAL RIGHTS WHERE THERE WAS NOT CLEAR AND CONVINCING PROOF TO SATISFY THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1(a).

A. [DEFENDANT] DID NOT HARM HIS CHILD WITHIN THE MEANING OF N.J.S.A. 30:4C-15.1(a).

B. THERE WAS NO CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE TRIAL COURT'S DETERMINATION THAT [DEFENDANT] WAS UNWILLING AND UNABLE TO ELIMINATE HARM TO [KEVIN].

C. THE DIVISION'S EFFORTS TO REUNIFY FATHER AND SON WERE INSUFFICIENT TO SATISFY ITS OBLIGATION UNDER THE THIRD PRONG AND ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS WERE NOT ADEQUATELY CONSIDERED AS REQUIRED BY THE THIRD PRONG.

a. THE DIVISION'S EFFORTS WERE NOT REASONABLY CALCULATED TO LEAD TO THE REUNIFICATION OF [DEFENDANT] AND [KEVIN] AND DID NOT ATTEMPT TO ELIMINATE ...


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