On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-86-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 14, 2009
Before Judges Fuentes and Simonelli.
Defendant J.C. is the biological father of two boys, A.C., currently eleven years old, and J.A.C., currently ten years old. He appeals from the judgment of the Family Part terminating his parental rights to his sons. He argues that the Division of Youth and Family services (DYFS or Division) failed to: (1) establish, by clear and convincing evidence, all four statutory prongs in N.J.S.A. 30:4C-15.1; and (2) consider kinship legal guardianship (KLG), as defined in N.J.S.A. 3B:12A-1 to -7, as an alternative to this guardianship action. As an overarching argument impugning the tenor and fairness of the trial court proceedings, defendant also claims that the trial court improperly considered his HIV positive status as a per se disqualifier to his ability to care for his children.
After reviewing the record before us, we reject these arguments and affirm. We are satisfied that DYFS presented sufficient competent evidence to warrant the termination of defendant's parental rights. We are equally satisfied that neither DYFS nor the trial court viewed defendant's health issues as per se indicators of his inability to parent these two children. That being said, the court was entitled to consider defendant's chronic and severe substance abuse history in determining what would be in the best interest of these two boys.
These are the relevant facts. Defendant J.C. and R.P.*fn1 had a total of four children together. Two older boys, W.C., born in 1991, and Jf.C, born in 1993, are not part of this appeal. The younger boys, A.C. and J.A.C., are the children involved in this guardianship case. The Division's first contact with this family occurred in 1987. From this point until 2006, the Division received at least eight separate referrals alleging child abuse by either J.C., R.P., or both. Seven of the referrals made during this nine-year period did not involve the two boys who are the subject of this guardianship action.
The events that gave rise to this litigation occurred on June 25, 2006. On this date, emergency room staff at Clara Maass Medical Center contacted DYFS to report allegations of sexual molestation involving A.C. and J.A.C. The boys' maternal aunts had brought the children to be physically examined after they revealed that they had been sexually assaulted by their older brother Jf.C. After an initial investigation, the Division determined that an emergency removal without court order was warranted and obtained physical custody of all four boys pursuant to N.J.S.A. 9:6-8.29.
Although the allegations of sexual molestation was the event that triggered the Division's involvement, the subsequent investigation also revealed other serious problems. Overwhelmed by R.P.'s impeding death, J.C. had ceased to function as a parent to his children, abdicating that responsibility to his then twelve-year-old son Jf.C. As a result, the living conditions in the home were chaotic, and the children were left to fend for themselves. R.P. died on June 30, 2006, five days after Clara Maass Medical Center's referral to DYFS.
With respect to the allegations of molestation, J.C.'s response was one of disbelief. According to DYFS records, J.C. was incredulous when first confronted with the allegations of sexual misconduct by one of his sons against the other.*fn2
On June 27, 2006, DYFS filed an Order to Show Cause and complaint alleging inadequate parental supervision. Specifically, DYFS alleged that:
There has been a breakdown of family systems and it seemed that [J.C.] was not capable of caring for the children. While he was doing the best that he could, the children's medical needs, educational needs, daily needs such as feeding and clothing are marginally being met. These issues have been a concern of the family. [Jf.C.] has taken on family responsibility that was not appropriate for him to be responsible for due to him having a learning disability. [sic].
The court granted the Division's application for legal custody of A.C., J.A.C. and Jf.C. The two younger boys were temporarily placed with their maternal aunts, and Jf.C. was placed in the custody of another family member. The court ordered J.C. to attend substance abuse counseling and cooperate with other services made available to him by DYFS. J.C. missed the first substance abuse assessment appointment. He attended a rescheduled appointment on October 16, 2006, which confirmed that he had a twenty-year ...