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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 9, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
H.P., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF Z.S.P.-F. AND Z.D.P.-F.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-15-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 3, 2010

Before Judges Wefing, Messano and LeWinn.

Defendant is the birth father of Z.S.P.-F. and Z.D.P.-F., fraternal twins born July 2, 2001. He appeals from the May 6, 2009 order of the Family Part terminating his parental rights to the children and awarding guardianship to the New Jersey Division of Youth and Family Services (DYFS). The children's birth mother, M.F., voluntarily surrendered her parental rights to the children's foster parents at the outset of trial. We affirm.

M.F. and H.P. met while they were both involved in a drug treatment program and dated until sometime in 2001. H.P. had previously been incarcerated for drug-related offenses; he was paroled in 2001 but was soon thereafter charged with a parole violation when he was caught selling drugs from his apartment. M.F. was pregnant with the twins at that time. H.P. was sent to Jamesburg Training School to serve a two-year sentence. Upon his discharge from Jamesburg, H.P. moved to North Carolina with his new paramour.

DYFS received referrals regarding M.F.'s care of the children commencing on September 19, 2005. The twins were removed from her custody on July 19, 2006, and were placed with their maternal great aunt. At that time, M.F. informed the DYFS caseworker that H.P. "[wa]s in and out of jail and [wa]s of no support . . . ."

On January 5, 2007, Dr. Carl J. Chiappetta performed a psychological evaluation of Z.S.P-F. on behalf of DYFS and opined that the child had "mild depression[,] . . . he was rather quiet[,] . . . fairly distractible . . . [with] a short attention span." The child also had "a noticeable articulation deficit, . . . a lack of comprehension and/or processing of . . . verbal questioning." "Given the complexity of [Z.S.P.-F.'s] problems, his young age, and various services and interventions that will be required," Dr. Chiapetta recommended that the child be placed in a therapeutic foster home.

Both children were placed in a "Family Service Specialized Home" on January 19, 2007. A Family Services therapist, Cher Paget, reported that Z.D.P.-F. had been diagnosed by a staff psychiatrist as a neglected child and was "significantly behind academically."

In January 2007, H.P. contacted DYFS and expressed a desire to care for the twins or, alternatively, for the twins to be placed with his great aunt until he found an apartment. However, DYFS was unable to contact H.P.'s great aunt.

DYFS was thereafter unable to contact H.P. until April 16, 2007, when he was located at the Mercer County Corrections Center. He had been incarcerated there since March 30, 2007, on robbery charges.

On June 22, 2007, DYFS contacted H.P.'s paramour, R.B., after she indicated an interest in adopting the twins. Following an evaluation, however, DYFS ruled out R.B. as a potential caretaker because of her "non-existing relationship with the children."

On July 25, 2007, the twins were placed in another therapeutic foster home where they continued to reside as of the time of trial. These foster parents expressed interest in adopting the twins in November 2007; subsequently, in October 2008, they indicated their firm intention to pursue adoption.

DYFS filed its complaint for guardianship on November 30, 2007; however, the agency was unable to serve H.P. until January 4, 2008, when he was located at Northern State Prison.

On February 13, 2008, the court held a case management conference. H.P. was not present, but was represented by counsel. The court ordered that custody of the twins remain with DYFS, that H.P. undergo a psychological evaluation, and that M.F. engage in a bonding evaluation.

On May 30, 2008, the court held another case management conference. Both parents were present; H.P. was brought to court from custody. The court ordered both H.P. and M.F. to undergo psychological and bonding evaluations. H.P. informed the court that he would be released from prison in seventy days. The court ordered DYFS to determine whether visits could occur between H.P. and the twins at Northern State Prison.

On December 8, 2008, Dr. Jeffrey Allen performed a psychological evaluation of H.P. During the interview, H.P admitted to being a member of the Bloods gang; he bore a tattoo that read "Blood Rules." When Dr. Allen asked about his employment history, H.P. stated that "his only real job has been selling drugs." Dr. Allen administered psychological tests which proved inconclusive. H.P. told Dr. Allen that he visited the children "occasional[ly] . . . when he was home from incarceration after their birth." H.P. stated that he had "more face to face contacts" with the children than was known to DYFS.

On December 10, 2008, Dr. Allen performed a bonding evaluation with H.P. and the twins. The doctor noted that Z.S.P-F. "appeared not to recognize his father[,]" and it was only after H.P. asked the child who he was that Z.S.P-F. responded, "Dad." Z.D.P.-F., however, immediately hugged H.P., "calling him 'daddy.'"

Dr. Allen opined that H.P. did not "have a capacity or competence to parent" the twins. He stated further:

[H.P.'s] idiosyncratic issues impacting on his parenting include character logical [sic] problems reflected in his repetitive history of criminal behavior. His understanding of the developmental needs of his children appears limited but could be improved with education and training. In terms of system issues, he appears to have no relationship to the mother's extended family. He appears to have limited relationships to members of his own extended family who might support him in parenting.

He has no history of responsible relationship [sic] to female romantic partners and has never lived for any extended period of time with a partner including [M.F.]. In his community, he appears to have no significant relationships with church, community resources, recreational, education or vocational organizations.

On February 17, 2009, Dr. Allen performed a bonding evaluation with the foster parents. He noted that Z.D.P.-F. referred to the foster parents as "Mommy" and "Daddy." Dr. Allen observed that Z.S.P.-F. appeared "happy[,] . . . [and] smiled frequently" in the presence of his foster mother, as contrasted with his attitude toward H.P. Dr. Allen opined that both children appeared bonded to their foster parents and that the foster parents were bonded to the twins.

On February 20, 2009, M.F. and H.P. appeared for a case management review. Both were incarcerated at the time; M.F. had recently been arrested for attempted murder and H.P was awaiting sentence on a new robbery charge. The court found DYFS's plan for the twins, namely termination of parental rights followed by adoption, to be "appropriate and acceptable." DYFS was ordered to implement a permanency plan within six months.

Trial on DYFS's complaint for guardianship was held on March 23 and 30, 2009. H.P. did not appear at trial. His attorney stated that H.P. had "apparently refused to appear" for trial. The judge noted that a writ had been issued to produce H.P. at trial and "he refused."

The trial evidence consisted of testimony by a DYFS adoption worker and by Dr. Allen, as well as voluminous DYFS records and reports. H.P. had submitted to evaluations by his own experts; however, he did not offer their reports or testimony into evidence.

Dr. Allen testified in accordance with his report, and noted that H.P. has "issues that are idiosyncratic to him[,] which are illustrated by his juvenile delinquent history . . . [and] adult criminal history." He also noted that H.P. has only seen the twins "on a few occasions[.]"

Dr. Allen described the positive bond between the twins and their foster parents and opined that "another severing of a major attachment like this would be very[,] very harmful." He acknowledged that Z.D.P.-F. might potentially suffer a "sense of loss" if she had no contact with H.P., but that Z.S.P.-F. would not "have much of a reaction." Moreover, Dr. Allen opined that any such "sense of loss" could be mitigated through counseling.

On May 6, 2009, the trial court rendered its decision from the bench; H.P. was present at this hearing. The court found that DYFS had met its burden under the four prongs of the best interests test codified at N.J.S.A. 30:4-15.1(a)(1) to (4).

The court found that the twins had been harmed by H.P. because of his "limited contact with the[m]" and that H.P. had voluntarily "absented himself from their li[v]e[s]" from 2001 to 2006, even when he was not incarcerated. Moreover, when H.P. returned to New Jersey in 2006, he was not involved in the children's lives during the brief period before he was once again incarcerated. The court further found that H.P.'s recent robbery conviction and concomitant incarceration impeded him from "performing the natural and expected parental functions[,]" noting that H.P. would not likely be released until September 2009. Therefore, the court concluded that the "harm that was imposed . . . [was] the withdrawal of . . . care, nurturance, [and] solicitude . . . ."

The court found next that the twins were bonded to their foster parents, based upon the testimony of Dr. Allen who, the court noted, "opined that there would be severe and enduring harm if that bond was severed." The court further found "no indication that in a timely fashion or in the foreseeable future . . . [H.P.] c[ould] . . . provide a safe and stable home and perform the normal and expected parental functions . . . ." The court noted Dr. Allen's assessment that H.P. was not connected to any community, primarily because of "his criminal history and affiliations, his relationship with women."

The court also cited Dr. Allen's testimony "that it would take at least six to twelve months for [H.P.] to reacclimate into the community before he could even be considered as a caretaker . . . ." The court found that this delay would cause even further harm to the twins, as their bonds to their foster parents would continue to grow and "there would be severe and enduring harm . . . if th[e] bonds [we]re severed." The court noted that H.P. "ha[s] no real job other than selling drugs," and this would clearly affect his ability to parent.

The court found that DYFS was not able to provide services to H.P. because he (1) was incarcerated during much of the pre-trial period, (2) "had no direct contact with . . . [M.F.,]" and (3) had limited contact with DYFS while the twins were in foster care.

Finally, the court found that while H.P. may love the twins, "his ability to care for [them] without doing more harm to them is certainly questionable . . . ." The court noted that while harm might "flow from the termination," such harm would likely be mitigated through counseling.

The court also found that "severe and enduring harm" would ensue if the twins were removed from their therapeutic foster home. Considering the twins' special needs, their bond with the foster parents, and the twins' expressed desire to remain with the foster parents, as well as their progress to date, the court found that termination of H.P.'s parental rights would not do more harm than good.

Therefore, the court concluded that DYFS had met its burden of proof by clear and convincing evidence, and entered judgment terminating H.P.'s parental rights and awarding guardianship of the twins to DYFS.

On appeal, H.P. raises the following contentions for our considerations:

I. THE COURT ERRED IN TERMINATING H.P.'S PARENTAL RIGHTS TO HIS CHILDREN AS THE DIVISION FAILED TO PROVE EACH OF THE FOUR PRONGS OF THE BEST INTEREST TEST

A. THE DIVISION HAS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT THE CHILDREN'S SAFETY, HEALTH OR DEVELOPMENT HAS BEEN HARMED BY THEIR RELATIONSHIP WITH H.P.

B. THE DIVISION HAS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT H.P. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING THE CHILDREN.

C. THE DIVISION HAS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT HAS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP H.P. CORRECT THE CIRCUMSTANCES WHICH LED TO THE TWINS' REMOVAL.

D. THE DIVISION HAS FAILED TO PROVE THAT THE TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

Having reviewed these contentions in light of the record and the controlling legal principles, we find them to be "without sufficient merit to warrant discussion in a written opinion . . . ." R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth in Judge Lawrence P. DeBello's decision rendered from the bench. R. 2:11-3(e)(1)(A).

Suffice it to say, H.P. has been virtually non-existent in the twins' lives, not only because of his incarcerations, but also because of his voluntary absence from New Jersey between 2001 and 2006. Even when not incarcerated, H.P. made little effort to have contact and establish a relationship with his children.

H.P.'s minimal contact with the twins is simply insufficient to defeat the termination of his parental rights.

Moreover, he has demonstrated no prospects of maintaining a stable lifestyle or of being a consistent and nurturing parent to the children.

[T]he attention and concern of a caring [parent] is "the most precious of all resources." Both of these children have been denied this precious resource by [H.P.] for many years. A parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child. We do not refer here to a notion of "inadequate parenting," but rather to [H.P.]'s failure to provide even minimal parenting to his children. [In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (citations omitted).]

Moreover, H.P.'s "'prolonged inattention to [the twins'] needs, . . . encourage[d] the development of a "bonding relationship" to foster parents,' which if severed could cause the child[ren] profound harm." In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999) (quoting N.J. Div. of Youth & Fam. Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996)).

Affirmed.

20100309

© 1992-2010 VersusLaw Inc.



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