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New Jersey Division of Youth and Family Services v. V.W.

July 12, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
V.W., DEFENDANT-RESPONDENT, AND B.G., DEFENDANT-APPELLANT.
IN THE MATTER OF B.W., A MINOR.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-61-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically February 10, 2010

Reargued June 9, 2010

Before Judges Stern, Sabatino, and J. N. Harris.

Appellant B.G., the biological father of an eight-year-old girl, B.W., seeks review of the Family Part's order dated May 5, 2009, which terminated litigation in Docket No. FN-06-61-07 brought under Title 9 by the Division of Youth and Family Services ("DYFS") against the child's biological mother, V.W., and appellant. Appellant also seeks review of related orders and findings by the Family Part in the Title 9 matter respecting custody of B.W. and appellant's rights of visitation.

As of the time of the most recent oral argument before us in June 2010, appellant was on active military duty and stationed at a military base in Colorado. He recently completed a tour of combat duty in Afghanistan, and before that had been on active duty twice in Iraq and once in Korea. The trial court found that appellant is fit to be a parent, even though he has not enjoyed or shared residential custody of his daughter since she was the age of one. Meanwhile, B.W. is and has been residing for several years in New Jersey in the residential care of B.T., who is her great-grandmother and is the grandmother of V.W.

In particular, appellant is concerned that the trial court's finding in the Title 9 matter that B.T.*fn2 has heretofore functioned as a "psychological parent" to the child will impede his ability to attempt to gain residential custody of her at some future time. Appellant is also concerned that the termination of the Title 9 litigation, and the related closure of the FN case docket, will cut off his eligibility for parental support services from DYFS and legal assistance from the Office of the Public Defender, thus further impeding his long-term desire to be reunited with his daughter.

Although we appreciate the practical and equitable concerns raised by appellant, we discern no legal justification to reverse the trial court's termination of the Title 9 action, inasmuch as the sole parent found to have committed abuse and neglect, the mother, has not contested the court's final determinations and has not sought relief on appeal. In addition, we do not adopt appellant's request to vacate the trial court's well-supported "psychological parent" finding as to the great-grandmother, who is not a party to this appeal. However, we do leave open the future ability of appellant to argue that this prior judicial finding in the FN matter should not be dispositive or carry presumptive force in a subsequent custodial proceeding.

We summarize the pertinent facts, recognizing that the facts and procedural history are more extensive and complicated than those mentioned in this opinion.

The child who is the subject of this case was born in 2002. At the time of the filing of this complaint, the mother had two other children, one born in 2004 and the other born in 2006.*fn3

Neither of those other two children is involved in this appeal.

The child's parents developed an intimate relationship with one another when they were both in high school and each fifteen years old. A year later, the mother informed appellant that she was pregnant. Believing at the time that he was the forthcoming child's father, appellant told the mother that he was happy about her pregnancy. He obtained a job, in an effort to help take care of the baby and the mother. Disagreements, however, arose before the child was born. In particular, appellant stated that he wanted to attend prenatal classes but the mother was opposed to them. In addition, appellant contends that even though he wanted to be involved in the pregnancy, the mother refused to share information with him about it.

At the child's birth in 2002, another male named "Brandon" appeared at the hospital and claimed he was the child's father. When asked about the true identity of the father, the mother responded to hospital staff that she did not know. Appellant attempted on several occasions to establish the child's paternity, but he alleges that the mother's family did not want a paternity test performed. Appellant also contends that the mother told him that "Brandon" was the child's biological father. In any event, it is undisputed for purposes of this appeal that appellant is indeed the child's biological father.

The child's contact with appellant diminished as she got older. From her birth through the age of one, the child lived with the mother in what appellant considered to be a series of "marginal homes." However, appellant was able to maintain periodic contact with the child. Then the mother began relocating with the child to various locations, first moving to Virginia, then to South Carolina, then back to New Jersey. These repeated moves increased the difficulty of appellant staying in touch with his daughter.

In August 2003, after the mother and the child had moved to Virginia, appellant voluntarily enlisted in the United States Army. He was then eighteen years old. At the time, appellant was aware that the mother might not have been taking good care of their daughter because the great-grandmother had allegedly warned him of the mother's "problems." He also acknowledged that he "felt ...


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