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

November 24, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0170-09.

Per curiam.



Submitted October 19, 2010

Before Judges Graves, Messano and Waugh.

Defendant J.E.W. is the biological father of J.W., a three-year-old boy. Defendant appeals from a judgment entered on December 18, 2009, terminating his parental rights and granting guardianship of J.W. to the Division of Youth and Family Services (DYFS or the Division). Based on our examination of the record and the applicable law, we conclude the trial court's decision to terminate parental rights is supported by clear and convincing evidence. Consequently, we affirm.

At the outset, we reiterate the well-settled principle that parents enjoy a fundamental right to raise and maintain a relationship with their children that is protected by the United States and New Jersey Constitutions. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S.Ct. 1208, 1212, 31 L.Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). Moreover, "[t]he Legislature has declared that '[t]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare.'" K.H.O., supra, 161 N.J. at 347 (second alteration in original) (quoting N.J.S.A. 30:4C-1(a)).

"Parental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). "The State has a basic responsibility . . . to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102 (citing K.H.O., supra, 161 N.J. at 347); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) ("The State has a responsibility to protect the welfare of children and may terminate parental rights if the child is at risk of serious physical or emotional harm.") (citing Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 L.Ed. 2d 101, 119 (1979)). Furthermore, the Legislature has declared that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a).

The New Jersey Supreme Court has "consistently imposed strict standards for the termination of parental rights." K.H.O., supra, 161 N.J. at 347. "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid. Under that test, termination is not appropriate unless the Division satisfies each of the following four statutory factors by clear and convincing evidence:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1(a).]

"The statute requires that the State demonstrate harm to the child by the parent." K.H.O., supra, 161 N.J. at 348. Moreover, the four statutory factors "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid. "When the child's biological parents resist the termination of their parental rights, the court must decide whether the parents can raise their children without causing them further harm." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.) (citing J.C., supra, 129 N.J. at 10), certif. denied, 192 N.J. 68 (2007).

In this case, the trial court terminated defendant's parental rights following a one-day trial on December 15, 2009. On appeal, defendant claims the Division failed to establish each of the four statutory factors set forth in N.J.S.A. 30:4C-15.1(a). We cannot agree.

J.W. was born on June 17, 2007. At the time, T.E., the child's mother, was Hepatitis C positive and receiving methadone treatment.*fn1 Two days later, a hospital worker reported the birth to the Division, alleging neglect because "[T.E.] did not have any prenatal care" and "[b]oth [T.E.] and [J.W.] were positive for methadone." A DYFS investigation substantiated the allegation. The investigator also spoke with defendant, who acknowledged he was J.W.'s father. He informed the investigator that he was "in school at Star Institute studying phlebotomy." Defendant also stated that he was "residing with his aunt [D.W.] as he [did] not work and [did] not have any income." Regarding T.E., defendant stated that "he thought she stopped using drugs and was just attending the methadone clinic."

When defendant was asked whether there were any relative resources for J.W.'s care, he "gave the name[s] of his aunt [D.W.] and brother [S.W.]." However, S.W. advised the Division he had no interest in caring for the child, and on July 3, 2007, the Division notified D.W. that she had been "ruled out as a placement resource" because she had been "substantiated for neglect [in] 1990 for unsafe housing, lack of supervision and lack of food/clothing."

On June 28, 2007, the Family Part entered an order to show cause and placed J.W. "in the immediate custody, care and supervision of the Division" because of T.E.'s drug addiction and defendant's lack of employment and housing. The court also appointed the Public Defender, Law Guardian Program, to represent J.W.

The next day, following a medical assessment, the Division concluded that J.W. met "the medically fragile criteria due to his prematurity, drug exposure and exposure to [Hepatitis C]." As a result, J.W. required specialized foster care.

On July 10, 2007, the Division referred defendant and T.E. to the Tri-City Peoples Corporation (Tri-City) for biweekly supervised visitation with J.W. The Division's stated goal was "[r]eunification [with] [r]elative or natural father." On July 11, 2007, J.W. was discharged from the hospital to L.M., a foster mother who was also caring for another eleven-month-old foster child.

Dr. Mark Singer, Ph.D. (Dr. Singer or Singer), conducted a psychological evaluation of defendant on August 7 and September 25, 2007.*fn2 During the assessment, defendant reported having a previous child, age sixteen, who resided with her biological mother but remained in contact with defendant. Regarding employment, defendant stated that he had "been employed by a tubing company" since August 26, 2007, but was going back to school at Star Institute. Defendant also confirmed that he was still residing with his aunt and stated he had not seen J.W. for three months because he was "working."

Singer noted in his report that defendant's lack of contact with J.W. "raises concerns regarding [defendant's] commitment to his child and may also limit the quality of bond that may evolve over time." Singer described defendant as a defensive, distrusting individual with a "primitive view of discipline." Nonetheless, Singer concluded, "[w]hile the data does not support reunification at this time, it does appear that, with appropriate support, [defendant] may become a viable placement option for his child." Singer recommended that defendant participate in consistent supervised visits with [J.W.]; undergo individual psychotherapy; receive parenting skills training; and "maintain appropriate employment and housing."

On August 15, 2007, DYFS case worker April Gainer (Gainer) went to L.M.'s home to conduct a monthly visit. She found L.M. and J.W. living in a "very clean" three-bedroom apartment with a kitchen "fully stocked with food and formula" for J.W. and another foster child. Gainer stated that the apartment "appeared to be a safe living environment for [J.W.]." Her report also noted that due to defendant's cancellations, J.W. had only had one visit at the DYFS office with him.

J.W. underwent surgery for a hernia on September 27, 2007. He recovered well and was returned to L.M. However, on November 14, 2007, J.W. had "umbilical exploration surgery" as a result of bleeding around the navel. About three weeks later, on December 8, 2007, J.W. was again admitted to the hospital, this time for "bronchilitis."

A case conferencing form from Babyland Family Services, Inc. (Babyland), dated October 24, 2007, included a recommendation that defendant and T.E. receive parenting education, vocational training, and housing assistance in addition to supervised visitation. On November 28, 2007, both T.E. and defendant attended a compliance review hearing at which the court directed defendant to attend counseling and parenting skills training and granted both T.E. and defendant biweekly supervised visitation with J.W. at Babyland. The court also stated that defendant "wishes to plan [for reunification] even if [J.W.] is not his child." Nevertheless, at defendant's request, DYFS arranged a paternity test.*fn3

On December 12, 2007, Gainer met with defendant, T.E., J.W., and Babyland staff at Babyland. The parents were introduced to Terry Colbert, their Babyland counselor, who was to "assist them in enrolling in parenting classes, finding employment[ and] housing and starting counseling."

The next court review took place on March 5, 2008, before the paternity test results were available. According to Gainer, defendant attended the hearing and said that he did not believe he was J.W.'s father and "[did] not wish to be a part of [J.W.'s] life if he [was] not."*fn4

At the next review hearing on April 2, 2008, defendant was adjudicated J.W.'s father by the Family Part based on the test results, which indicated a "probability of paternity [of] 99.99%." At the same hearing, the court entered a permanency order finding that the Division's plan of "reunification with natural father" was "appropriate and acceptable." The order also stated that DYFS had "provided reasonable efforts to finalize" the plan and that the Division was exempted from the requirement to file for termination of parental rights because defendant was "engaging in services to accomplish reunification" with J.W. Once again, the court ordered defendant to attend counseling and parenting skills training and directed the Division to arrange biweekly visits for T.E. and defendant with J.W. at Babyland.

In April 2008, DYFS again referred defendant to Babyland for a "Parent Education Program." According to the referral form, this program included individual and group counseling, parent-child learning sessions, outreach/home visits, workshops, and visitation services. Defendant was to commence afternoon or night classes "ASAP."

The court held another review hearing on June 25, 2008, which defendant was excused from attending "due to [a] new job." In his absence, the court ordered him to "continue to comply with the Division's services . . . [and] search for employment and housing."

As of August 2008, defendant continued to reside with his aunt. However, on August 15 and 29, 2008, defendant received letters from the Georgia King Village Apartments and the Newark Housing Authority informing him that he had been placed on their waiting lists for an apartment.

On September 15, 2008, the Division again referred defendant to Tri-City for supervised visitation with J.W. The referral requested four visits per month on Saturdays or any other day after 5:00 p.m. Ultimately, the schedule provided for weekly visits every Thursday at 6:00 p.m. from October 9 to December 25, 2008.

At a compliance review hearing on September 17, 2008, L.M. "stated her desire to adopt if [J.W. became] legally free." But the court noted defendant had obtained employment and was searching for housing, and it ordered the Division to "proceed concurrently" with permanency planning for reunification with defendant, and termination of parental rights and adoption by the foster mother.

Sometime in October 2008, defendant moved from his aunt's home and began living with his girlfriend. However, defendant did not advise the Division he had moved and Gainer was unaware of the move when she prepared the following report on December 4, 2008:

Since the last hearing [September 17, 2008], [defendant] has yet to find appropriate housing for himself. Caseworker provided him with a letter to be given to various housing agencies, asking for their assistance. He has been consistently attending supervised visits at [Tri-City] every Thursday, but hasn't done anything else that can contribute to him getting [J.W.] back. Currently he still resides with his Aunt and doesn't have a working phone. The only time he makes contact with worker is when he comes to the Division's office to pick up a [bus card] and usually has little time to converse with worker about his situation. Worker is trying to get him to join the Robinson Group's parenting classes, but he has yet to follow up with them.

At a permanency hearing on January 7, 2009, the Family Part found that the Division's plan to terminate parental rights was appropriate because defendant was only sporadically engaging in services to accomplish reunification, failed to complete any of the services that had been provided, and was still searching for housing and employment. Accordingly, the court approved the Division's permanent plan for "[t]ermination of parental rights and adoption by [the] current caretaker."

After the permanency hearing, defendant failed to confirm three straight visits on January 8, 15, and 22, 2009, resulting in another termination by Tri-City. At trial, defendant testified that Tri-City would sometimes cancel his visitation appointments if he was late, but he never ...

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