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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 5, 2010

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

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-123-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 20, 2010

Before Judges Skillman and Fuentes.

Defendant H.B. appeals from a final judgment terminating his parental rights to K.A.H.

K.A.H. was born prematurely on September 29, 2006, testing positive for opiates. The mother, L.H., admitted to being a heroin user and using on the day of delivery.

Shortly after K.A.H.'s birth, on October 11, 2006, the Division of Youth and Family Services (DYFS) filed a complaint seeking custody of K.A.H. That same day, the court entered an order to show cause placing K.A.H. in DYFS's custody. The court found that removal of K.A.H. was required due to the imminent danger to his life, safety, and health posed by his exposure to opiates and lack of prenatal care.

Upon K.A.H.'s discharge from the hospital on October 26, 2006, DYFS placed him in foster care with L.H.'s cousin, M.C., in whose care he has remained since. M.C. and his fiancee plan to adopt K.A.H.

Although L.H. was living with H.B. at the time of K.A.H.'s birth, she initially identified another man as K.A.H.'s father. As a result of a paternity test, that man was determined not to be K.A.H.'s father approximately a year after the child's birth.

A few months later, on January 9, 2008, L.H. identified H.B. as K.A.H.'s possible father. H.B. responded by requesting a paternity test. Thereafter, DYFS scheduled paternity tests for H.B. on four different occasions, which H.B. either failed to appear for or cancelled.

Finally, on June 30, 2008, approximately six months after L.H. had identified him as K.A.H.'s possible father, H.B. appeared for a paternity test. As the caseworker walked with H.B. to the test, H.B. indicated that if he was found to be the father, he would not be able to care for the child and would be willing to surrender his rights to M.C. The paternity test results, issued July 7, 2008, revealed a 99.84% probability that H.B. is K.A.H.'s biological father. Sometime thereafter, around K.A.H.'s second birthday, H.B. had his first visitation with the child.

Before H.B.'s paternity of K.A.H. was determined, L.H. executed a surrender of her parental rights so that K.A.H. could be adopted by M.C. However, H.B. refused to surrender his parental rights and strenuously opposed DYFS's action for the termination of his parental rights.

H.B. has a history of severe mental illness, and both he and the experts who testified at the trial of DYFS's action for termination of H.B.'s parental rights agreed that he is incapable of being K.A.H.'s primary caregiver due to his diagnosed schizophrenia. Nevertheless, he offered his sister as an alternative custodial placement for K.A.H., which would allow him to be a supportive parental figure to the child.

At the trial, DYFS's psychological expert, Dr. Mark Singer, testified that when he interviewed H.B., H.B. told him he was initially ready to surrender his rights to M.C., but his sister told him not to do so, and he now wishes for K.A.H. to live with his sister. Dr. Singer testified that H.B.'s statements regarding how he would discipline K.A.H.--"I would shake him, just pull him. He feels as though I'm the punk and he's the tough man"--indicates a "very primitive view of discipline" that may present a risk of harm to the child. In addition, Dr. Singer testified that H.B. told him that he still lives with L.H. despite her history of drug abuse, suggesting poor judgment on H.B.'s part. Consequently, Dr. Singer expressed a concern that H.B., if unsupervised, would expose K.A.H. to L.H., which "could create a significant risk of harm to the child."

Dr. Singer also performed bonding evaluations of K.A.H. with H.B., H.B.'s sister, and M.C. and her fiancee. Based on those evaluations, Dr. Singer concluded that M.C. and her fiancee are his psychological parents. He also concluded that the child does not see H.B. or his sister as significant parental figures. In Dr. Singer's opinion, K.A.H. would not suffer any significant harm if H.B.'s parental rights were terminated or if contact with H.B.'s sister was discontinued. On the other hand, if K.A.H.'s relationship with his foster parents was severed, the child would suffer a significant, enduring reaction to the loss, and any harm would not be mitigated by transferring custody to H.B. or his sister. Therefore, Dr. Singer's opinion was that the benefits of permanently placing K.A.H. with his foster parents outweighed the harm of terminating H.B.'s parental rights.

The trial court concluded in a written opinion, based substantially on Dr. Singer's testimony, that DYFS had established the statutory grounds for the termination of H.B.'s parental rights.

On appeal, H.B. presents the following arguments:

POINT I.

THE TRIAL COURT ERRED IN RULING THAT DEFENDANT'S PARENTAL RIGHTS SHOULD BE TERMINATED AS THE STATE FAILED TO PROVE, BY THE REQUIRED CLEAR AND CONVINCING EVIDENCE, THAT TERMINATION OF THE PARENTAL RIGHTS WAS APPROPRIATE.

A. THE CHILD'S HEALTH AND DEVELOPMENT WAS NOT ENDANGERED BY THE PARENTAL RELATIONSHIP.

B. THE DEFENDANT WAS ABLE AND WILLING TO ELIMINATE THE HARM FACING THE CHILD AND WAS ABLE AND WILLING TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILD.

C. THE DIVISION DID NOT MAKE REASONABLE EFFORTS TO PROVIDE SERVICES TO CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILD'S PLACEMENT OUTSIDE THE HOME.

D. TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

We reject these arguments substantially for the reasons set forth in the trial court's written opinion. H.B.'s arguments are clearly without merit and therefore do not warrant any additional discussion. R. 2:11-3(e)(1)(E).

Affirmed.

20100505

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