On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0185-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2009
Before Judges Sabatino, J. N. Harris and Newman.
S.T., now four years old, was born HIV positive to B.T., who was fifteen years old at the time of S.T.'s birth and, herself, under the supervision of the Division of Youth and Family Services (DYFS). This was B.T.'s second child, having given birth to E.T. when she was thirteen years old. Shortly after S.T.'s birth, B.T. identified one individual, L.F., as a potential father. In June 2007, a paternity test determined that L.F. was not the father. Shortly thereafter, B.T. identified, when questioned by a judge in court, W.L. as a potential father.
In December 2007, DYFS located W.L. A DNA test indicated that W.L. was S.T.'s father, and paternity was adjudicated. Meanwhile, DYFS's plan for S.T. was termination of parental rights and adoption by S.T.'s foster mother, although reunification with the father was not ruled out when W.L.'s parentage was confirmed.
A trial to determine whether B.T. and W.L.'s parental rights should be terminated was held. B.T. did not appear at trial. The trial judge entered an order on September 26, 2008, terminating both B.T.'s and W.L.'s parental rights. W.L. appeals from the order terminating his parental rights. B.T. has not appealed from the order terminating her parental rights, and, therefore, we do not discuss the termination insofar as she is concerned. We now affirm.
The trial judge read her opinion from the bench on January 7, 2009. In terminating W.L.'s parental rights, the trial judge determined that DYFS established that S.T.'s safety, health, and development would be endangered by a parental relationship with W.L. The judge opined that W.L. "has not shown that he can parent S.T. and he has not shown that S.T.'s safety, health and development would not be endangered if in his care." The judge recognized that W.L. did not obtain employment, did not offer a consistent plan of care, and did not establish safe and stable housing.
The judge also determined that DYFS proved that W.L. was "unwilling or unable to eliminate the harm facing the child, or unwilling or unable to provide a safe home for the child, and the delay of permanent placement will add to the harm."
The trial judge found that W.L. did not make "any effort to show that he can care for" S.T., a medically fragile child who was under the care of five different medical specialists. The judge stated that W.L. failed to offer a consistent plan of care, but, rather, W.L. submitted five different plans. The trial judge was also concerned about W.L.'s failure to obtain employment or stable housing because S.T.'s special needs required a proactive caretaker, and that W.L. would not be a proactive parent, which would be unacceptable for S.T.'s needs.
The trial judge relied on particular instances that demonstrated W.L. would not be the assertive, proactive caretaker that S.T. needs.
First, W.L. missed four visits with his son because he forgot about them. The judge emphasized that S.T. needs a caretaker who does not forget because he takes three medications a day, sees five specialists, and has therapy twice a week. The trial judge stated, "He needs a parent that's going to be on top of everything and not forget to give medicine, not forget appointments. Those -- are too critical for someone like S.T." The trial judge found that W.L.'s forgetfulness reflected a lack of motivation to care for S.T.
Second, W.L. forgot to attend S.T.'s doctor appointment. The trial judge opined "that W.L.'s first priority should have been, besides visiting with S.T. and developing a bond with him, . . . should be S.T.'s health . . . . [He should] want to know everything there is about S.T.'s health, his special needs, and his condition, and he just didn't do that." These forgotten doctor visits were unacceptable to the trial judge, especially because of S.T.'s serious medical needs.
The trial judge further found that S.T. had developed a bond with his foster mother. The judge relied on the testimony of Dr. Leslie Williams, a clinical psychologist, "that S.T. would suffer harm if he were removed from his foster mother, and . . . W.L. [does] not possess any ability to address that harm."
The trial judge determined that DYFS made reasonable efforts to provide services to W.L. to help him remedy his circumstances. Furthermore, the judge understood that DYFS attempted to find and conduct DNA testing for each potential father identified by B.T. The judge said that after W.L.'s paternity was confirmed, "the Division provided services to him, including psychological evaluation, bus tickets, visitation, [and] an opportunity to participate in the medical appointments for S.T."
The judge concluded S.T. would not suffer more harm than good by terminating W.L.'s parental rights. The trial judge also determined that W.L. failed to develop a bond with S.T. during their limited number of visits. Dr. Mark Seglin, a psychologist who evaluated bonding between S.T. and his foster mother, reported that S.T. viewed his foster mother as his parental figure who had provided nurture and assistance to him since he was just over one year old. In contrast, the trial judge found that S.T. would suffer severe loss if he were to be separated from his foster mother.
On appeal, W.L. raises the following points for our consideration:
THERE IS NOT SUFFICIENT, CREDIBLE EVIDENCE TO SUPPORT THE TRIAL COURT'S DETERMINATION THAT THE DIVISION HAS CARRIED ITS BURDEN OF PROOF AS TO ALL FOUR PRONGS OF N.J.S.A. 30:4C-15.1a.
A. W.L. has not harmed his child within the meaning of N.J.S.A. 30:4C-15.1a(1).
1. The trial court impermissibly shifted the burden of proof to W.L. as to the first prong, requiring him to demonstrate that he would not harm S.T. in the future.
2. W.L.'s actions or inactions in the six months he was given before the Division sought to terminate his parental rights do not constitute sufficient evidence to support a finding that he has harmed S.T.
B. The trial court's decision that the second prong of the statute was satisfied was not supported by substantial, credible evidence.
1. There was not clear and convincing evidence to support the trial court's determination that W.L. was unwilling and unable to parent his child.
2. There was not clear and convincing evidence to support a finding that a delay in permanency would add to S.T.'s harm.
C. The record does not contain sufficient evidence to support a finding that the Division met its burden of proof under ...