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New Jersey Division of Youth and Family Services v. J.H.C.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 17, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
J.H.C., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF A.N.C.D., A MINOR.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG 07-275-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 9, 2010

Before Judges Wefing, Grall and LeWinn.

J.H.C. appeals from the trial court judgment terminating his parental rights with respect to his daughter A.N.C.D ("A") , now four and one-half years old, and granting guardianship to the New Jersey Division of Youth and Family Services ("DYFS"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

At the time of the trial, J.H.C. was serving a sentence of twenty years in prison, subject to the parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, for aggravated manslaughter. J.H.C. is not a citizen of the United States, and when he finishes serving his sentence, he will be deported from this country. J.H.C.'s victim was A.'s mother, N.L.D. A. was fifteen months old at the time J.H.C. killed her twenty-three-year-old mother. Since the slaying, A. has lived with her maternal grandparents, who wish to adopt her.

DYFS arranged to have Antonio W. Burr, Ph.D., conduct a bonding evaluation of A. with her maternal grandparents. He testified that she was clearly bonded to them and viewed them as her psychological parents. He expressed the opinion that it would be a "huge mistake" to remove A. from her maternal grandparents and that the termination of J.H.C.'s parental rights would have no impact upon her psychological and emotional development. Termination, he said, would be "somewhat irrelevant" in light of J.H.C.'s inability to fulfill a parental role.

Barry A. Katz, Ph.D., at the request of J.H.C., also conducted a bonding evaluation of A. with her maternal grandparents. Dr. Katz testified that he observed signs that A. was developing a bond and attachment to her grandparents but that he was unable to determine if they represented her primary parental figures because he was unable to perform a comparative bonding analysis of A. with her paternal relatives.

The Law Guardian presented John Quintana, Ph.D., as an expert witness. Dr. Quintana also conducted a bonding evaluation of A. with her maternal grandparents. He testified that A. "is firmly, strongly attached, and bonded to the maternal grandparents . . . [and] the maternal grandparents are also very loving with her and they are very much bonded and committed to this child." He also testified that in the circumstances presented by this case, he did not consider it necessary to conduct any bonding evaluations of A. with her paternal relatives.

In addition to these three expert witnesses, a DYFS case worker testified, as did defendant and his sister-in-law.

J.H.C. testified that A.'s mother was estranged from her father; he did not attend her wedding to J.H.C. and visited them only once after A.'s birth. J.H.C.'s sister-in-law testified that his relatives had frequent contact with A. until her mother's death. J.H.C. said his reason for contesting the application to terminate his parental rights was his desire that A. have contact with his relatives.

On appeal, J.H.C. raises the following contentions for our consideration.

Point One

Parental Rights are of Constitutional Magnitude

Point Two

The State Failed to Meet its Statutory Burden by Clear and Convincing Evidence

A. Appellate Framework

B. New Jersey's Statutory Standard for Termination of Parental Rights

Point Three

The Judgment Must be Reversed as DYFS Failed to Meet its Burden as to J.H.C. by Clear and Convincing Evidence

A. Application of Law to the Facts Requires the Judgment to be Reversed

1) DYFS Did Not Make "Reasonable Efforts" as DYFS and the Trial Court Refused a Comparative Bonding Evaluation

2) Termination Will Do More Harm Than Good

Having reviewed the substance of J.H.C.'s brief, it is apparent that he does not seriously contest on appeal the judgment terminating his parental rights with respect to A. The focus of his concern is whether his relatives will be permitted in the future to have contact with A. At this juncture, her maternal grandparents are unwilling to permit such contact. Whether such visitation should be permitted, however, and if so, its circumstances and frequency, are not questions which are properly before us on this appeal, and we decline to interject ourselves at this juncture into what is, essentially, a private and intensely personal dispute.

The judgment under review is affirmed substantially for the reasons stated by Judge David B. Katz in his letter opinion of May 21, 2009.

20100517

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