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

November 15, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-124-09.

Per curiam.



Submitted October 19, 2010

Before Judges Payne, Baxter and Koblitz.

M.C. and E.W. are the mother and father of D.C.-W. Their separate appeals from orders terminating their respective parental rights were consolidated by this court. We affirm substantially for the reasons stated by Judge Hayden in a written opinion issued on January 21, 2010. The findings are "based on clear and convincing evidence supported by the record," and the legal conclusions are sound. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004).

Two years ago we affirmed the termination of defendants' rights to their older daughter, D.L.C., who is about two and one-half years older than D.C.-W. D.L.C. was removed from her parents' care when she was one month old. Judge Hayden also presided over the trial terminating defendants' parental rights to D.L.C. N.J. Div. of Youth & Family Servs. v. M.C., No. A-1735-07 (App. Div. Oct. 24, 2008); N.J. Div. of Youth & Family Servs. v. E.W., No. A-2804-07 (App. Div. Oct. 24, 2008). At that time we noted that the psychologist retained by the Division of Youth and Family Services (Division), Dr. Frank Dyer, reported that M.C. was mildly retarded and also had extremely severe psychological and behavioral problems that left her with poor impulse control, defective judgment and a great deal of poorly managed aggression. He concluded that she was far too disorganized psychologically to provide a child with the requisite degree of nurturance, affection, positive role modeling, stimulation and physical protection. In his opinion, the prognosis for M.C. acquiring adequate capacity to parent was extremely poor. [M.C., supra, No. A-1735-07 (slip op. at 4).]

Dr. Dyer found D.L.C.'s father, E.W., had "a history of multiple incarcerations for violent offenses, possession of a firearm, and theft." Additionally, Dr. Dyer noted that E.W. had "a history of severe head trauma resulting from a physical altercation in which he was struck in the head with a pistol and was comatose for seven days." Due to the combination of his permanent neurological impairment caused by the head trauma, E.W.'s mildly retarded intellectual functioning, aggressive behavior, and use of alcohol and marijuana, Dr. Dyer found E.W. to have an extremely poor capacity to parent. E.W.'s visits with D.L.C. were eventually terminated due to his repeated disruptive behavior.

A bonding evaluation may be conducted between a child and his or her biological or foster parents to determine the degree of psychological harm that will befall the child if the rights of his or her biological parents are terminated. See In re Guardianship of K.L.F., 129 N.J. 32, 44-45 (1992). E.W.'s bonding evaluation with D.L.C. was negative. He arrived smelling of alcohol and behaved in a menacing, psychotic fashion toward his daughter. Dr. Dyer also conducted a bonding evaluation of M.C. and D.L.C. and ultimately found that D.L.C. had not bonded with either parent.

Both parents were even less involved with D.C-W. D.C.-W. never lived with either of his biological parents. He was born prematurely at twenty-nine weeks of gestation weighing under three pounds. The Division was granted custody of D.C.-W. within a few days of his birth, bringing him from the hospital to his current foster parents. Dr. Dyer concluded in a bonding evaluation with the foster parents that at the age of ten months, D.C.-W. was "profoundly attached" to his foster parents and would suffer a "traumatic loss" if separated from them. D.C.-W. has lived with these foster parents his entire life, and they have indicated a desire to adopt him.

As Judge Hayden described in detail in her thorough opinion, neither of D.C.-W.'s biological parents have lived in a safe and secure home suitable for raising a child. Their problems with violence, mental illness and substance abuse persist. At the time of trial M.C. lived with a man with a long criminal history and multiple incarcerations. He did not cooperate with the Division to allow an evaluation.

On appeal E.W. argues generally that the Division has not met its burden of proof, raising specifically the argument that the Division did not make reasonable efforts to reunify him with his son. We find this argument lacks merit because the Division was relieved of the requirement to make reasonable efforts to unify the child with his parents pursuant to N.J.S.A. 30:4C-11.3, due to the prior termination of their parental rights to D.L.C.

M.C. argues on appeal that her son should have been placed with his father's relatives in North Carolina who were approved for placement through the Interstate Compact for the Placement of Children (ICPC).*fn1 N.J.S.A. 9:23-5.

Six weeks after D.C.-W.'s birth, the Division sent out a request under the ICPC seeking home studies for several of E.W.'s relatives located in North Carolina. This application was lost and not resubmitted until ten months later. M.C. argues that this unnecessary delay caused by the Division's failure to pursue the interstate process in a timely manner should not have prevented this out-of-state placement. M.C. ...

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