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New Jersey Division of Youth and Family Services v. S.L.P.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 16, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
S.L.P., DEFENDANT-APPELLANT.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
L.C., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF C.L.P., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-39-08G.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2010

Before Judges Fuentes, Gilroy and Simonelli.

In this consolidated appeal, defendants S.L.P. and L.C., the biological parents of C.L.P. (Carol),*fn1 born April 2005, challenge the final judgment of the Family Part terminating their parental rights to their child. Defendants contend that plaintiff Division of Youth and Family Services (Division or DYFS) failed to prove by clear and convincing evidence the four statutory prongs contained in N.J.S.A. 30:4C-15.1a. After reviewing the evidence presented to the trial court, and in light of prevailing legal standards and the arguments presented, we affirm.

We will not recite in detail the history of the Division's involvement with defendants. Instead, we incorporate by reference the factual findings and legal conclusions contained in Judge Guadagno's comprehensive written opinion, dated November 28, 2008. We add only the following brief comments.

We are satisfied that commencing with the Division's first contact with the family on June 22, 2005, and continuing up to and including the commencement of the trial over three years later, the Division provided multiple opportunities for defendants to reunify with Carol and to address their documented domestic violence and anger management issues. The Division also provided L.C. multiple opportunities to overcome her psychological and substance abuse problems. None of these interventions proved successful.

Judge Guadagno carefully reviewed the evidence presented by the Division, and thereafter concluded that it had met by clear and convincing evidence all of the legal requirements for an order of guardianship. His opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1a, accords with In re Guardianship of K.H.O., 161 N.J. 337 (1999), In re Guardianship of D.M.H., 161 N.J. 365 (1999), and N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), and is supported by the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

We reject L.C.'s contention that the Division's failure to prove abuse and neglect in the Title 9 action precluded it from further pursuing that action and from proceeding with a Title 30 action. Defendants did not object to continuing the Title 9 action. More importantly, a prior determination of abuse or neglect in a Title 9 action is not required in a termination proceeding brought pursuant to N.J.S.A. 30:4C-15. N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 556 (1994); N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 260 (App. Div. 2009).

We also reject defendants' contention that the Division failed to prove prong four of N.J.S.A. 30:4C-15.1a because it never obtained a bonding evaluation of them and Carol. Although, ordinarily, to prove prong four the Division should "offer testimony of a 'well qualified expert who has had full opportunity to make a comprehensive, objective and informed evaluation' of the child's relationship with both the natural parents and the foster parents[,]" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (quoting In re Guardianship of J.C. 129 N.J. 1, 19 (1992)), parents, such as defendants, whose willful misconduct prevents the Division from obtaining a bonding evaluation cannot be heard to complain that prong four has not been met.

Without explanation, S.L.P. failed to appear for his bonding evaluation. Although one such dereliction should not result in the permanent loss of parental rights, defendant's nonappearance emphasizes his recalcitrance throughout his involvement with the Division. To be sure, defendant failed to appear for several scheduled psychological and substance abuse evaluations, he failed to comply with services offered to him, and he failed to appear at numerous court hearings. He also ceased contact with Carol in October 2007, nearly a year before the guardianship trial.

L.C.'s willful misconduct is equally evident. L.C. is no stranger to the criminal justice system, having had prior arrests, dating back to June 2003, for possession of heroin, possession of drug paraphernalia, theft, forgery, harassment, and obstruction of justice. At the most critical time in these proceedings, when L.C. was aware she could permanently lose her parental rights to her daughter, she chose to engage in criminal activity that she knew or should have known would result in her incarceration. She was arrested in October 2007 for robbery, resulting in her receiving a lengthy term of incarceration. At the time of her scheduled bonding evaluation, and at the time of the trial in September 2008, L.C. was incarcerated with no possibility of parole until at least March 2009.

As for Carol, who has been with her foster parents since March 2007, undisputed expert evidence clearly and convincingly shows that this child has a dire need for permanency and stability, and that she has an extremely strong bond to her foster parents, the severance of which will cause her profound, enduring and irreparable emotional or psychological harm. J.C., supra, 129 N.J. at 19; N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009).

Affirmed.


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