On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-173-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Sapp-Peterson.
J.P.P.L. is the daughter of J.L. and defendant M.D.P. Born on February 12, 2008, she has been in the custody and care of her maternal great-aunt, D.H., since she was released from the hospital. J.L. executed an identified surrender of her parental rights in furtherance of the plan for adoption by the maternal great-aunt. M.D.P. declined to surrender his parental rights because he wanted his daughter to know he fought for her. Two weeks after her birth, M.D.P. was incarcerated on State charges. He remains incarcerated but expects to be released on parole on June 25, 2011.
M.D.P. argues that the record adduced by the State does not establish by clear and convincing evidence that he abandoned his child or any of the four statutory prongs, N.J.S.A. 30:4C-15.1a(1)-(4), required to terminate his parental rights. He insists that he has not harmed his child, the Division of Youth and Family Services (DYFS) failed to make reasonable efforts to provide services to him to foster reunification, and the record does not establish that termination of his parental rights will not do more harm than good. DYFS and the Law Guardian respond that sufficient competent evidence was adduced to allow the trial judge to find, as she did, that clear and convincing evidence supports the order terminating M.D.P.'s parental rights. We affirm.
At the time of J.P.P.L.'s birth, M.D.P. was unemployed, charged with robbery, and lived with J.L., the mother of J.P.P.L., at his grandmother's house. On February 14, two days after the child's birth, M.D.P. arrived at the hospital to pick up mother and child. On his arrival, M.D.P. learned that DYFS had intervened due to the termination of J.L.'s parental rights to her older daughter. J.L. had not informed M.D.P. of DYFS's interest and he apparently had not told J.L. of his plan to have his mother and sister care for J.P.P.L. On discharge, the child was placed in the care of J.L.'s aunt, who was in the course of adopting J.L.'s older daughter. J.P.P.L. has been in the maternal aunt's care since that time.
M.D.P. has been incarcerated since February 26, 2008, except for a six-day period in May 2008. He has seen his daughter once in a visit at the courthouse. His plan for the custody and care of J.P.P.L. is placement with his mother and sister. Yet following a mediation session in December 2009, M.D.P.'s mother and sister entered an agreement with the maternal great-aunt for visitation with the paternal family recognizing that the maternal great-aunt would adopt J.P.P.L., when and if M.D.P.'s parental rights were terminated.
In her opinion, the trial judge found that M.D.P. had been unable to care for his daughter due to his continuous incarceration for multiple criminal acts. She found no evidence that he ever assumed any parental responsibility for his daughter's care, never supported her financially or emotionally, and never formulated a feasible, realistic plan for her care. The judge further found that M.D.P.'s absence from his daughter's life had prevented any emotional relationship to form with his daughter and had allowed a secure relationship to develop between his daughter and her maternal great-aunt with whom she has lived her entire life. The judge found that this abdication of parental responsibility and its emotional consequences harmed the child. She also found that M.D.P.'s continued incarceration prevented him from alleviating the harm caused to his child.
The judge then found that DYFS provided reasonable services to M.D.P. under the circumstances of the case. The judge noted that she denied an application for visitation in the county jail or prison due to the age of the child. J.P.P.L. was only weeks old when M.D.P. was incarcerated. The judge did allow one visit between J.P.P.L. and her father in the courthouse.
The judge also found that DYFS investigated the two persons M.D.P. identified as caretakers for his daughter. His sister was initially ruled out as a caretaker because her apartment was too small. Eventually, she withdrew her application to care for J.P.P.L. but did enter a mediated agreement with J.P.P.L.'s caretaker to allow visits with M.D.P.'s mother and herself.
Finally, the judge found that termination of M.D.P.'s parental rights will not do more harm than good to the child. The judge found that the child is "happy and confident" in her great-aunt's care. J.P.P.L. refers to her as "mommy" and considers her great-aunt as her psychological parent. Although the judge considered the bonding evaluation of the relationship between the child and her great-aunt "perfunctory," she also considered the conclusion consistent with a placement in existence since the child was three days old. Furthermore, the child and her father have no emotional relationship due to his continuous separation from his daughter.
Termination of parental rights by the State must balance the constitutionally protected right of a parent to maintain a relationship with their child and the responsibility of the State to protect the welfare of the child. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). The standard for termination is, therefore, strict. Ibid. The State must "demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." In re ...