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

April 2, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
W.E., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF A.F.R.*FN1 AND M.L.R., MINORS.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-42-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 19, 2012

Before Judges Sabatino and Fasciale.

Defendant, W.E., the biological father of M.L.R. ("Mary")*fn2

appeals the Family Part's final judgment of guardianship issued on March 10, 2010 terminating his parental rights, which was entered after a three-day trial. Mary was subsequently adopted by a foster parent in August 2010. The Division of Youth and Family Services ("DYFS" or the "Division") and the Law Guardian for the minor both oppose defendant's appeal of the guardianship judgment as lacking in substantive merit. The Law Guardian further contends that the appeal is moot, in light of the child's adoption. We affirm.

I.

The pertinent facts reflect that defendant had been incarcerated for much of Mary's short life up until the time of trial, and he had only limited contact with her during the periods when he was not incarcerated.

Mary was born in April 2007. She has two older half-sisters and one older half-brother, A.F.R. The half-sisters share a biological father, and A.F.R. has a different biological father. All of the half-siblings had been removed from the mother's care prior to Mary's birth.

The Division removed Mary from her biological mother, T.R., on an emergency basis several days after her birth. Then, she was placed with a foster parent who has since adopted her. The birth mother has not appealed the final judgment terminating her own parental rights.

At the guardianship trial, defendant testified that he became aware from a friend that the biological mother was pregnant with Mary about three to four months after the mother, who was then married to another man, had relations with defendant. According to defendant, he met with the biological mother when she was approximately seven months pregnant.

The day after Mary was born, defendant visited Mary and her mother at the hospital. Defendant testified that he went to the hospital because he allegedly told T.R. that he wanted to be a part of Mary's life, provided that he was confirmed to be the child's father. Defendant recalled that he visited the hospital on two occasions.

In June 2007, a paternity test confirmed that defendant was Mary's biological father. According to a Division report in evidence, defendant did not return phone calls from its staff at that time regarding the paternity test results, and the biological mother told the Division that defendant had not asked to see Mary.

After visiting Mary at the hospital shortly after her birth, defendant did not see her again until approximately two to three months later. There is no proof that he contacted the Division personally during this pre-incarceration period in order to schedule a visit. Defendant's visits with Mary were instead arranged through the biological mother, who would inform him of the visitation dates. Defendant estimated that he visited Mary during that initial period, before his incarceration, on a biweekly basis.

In January 2008, defendant pled guilty to various drug and weapon charges, and he began serving his sentence for those offenses. The sentence imposed was a custodial term of five years, with a thirty-month parole disqualifier. When defendant testified at the guardianship trial in December 2009, he was still serving that sentence. He noted in his trial testimony that, unless he were admitted into the Intensive Supervision Program, see R. 3:21-10(e), his earliest release date was June 29, 2010, and his maximum release date was in August 2012.

Defendant was incarcerated in various prisons from January 2008 through the time of trial. From January 2008 to June 2008, he was held at Mercer County Correctional Facility. Then defendant was incarcerated at the Kraft Reception Center from June 2008 to July 2008. From July 2008 to August 2008, defendant was imprisoned at Yardville. Next, defendant was held at East Jersey State Prison from September 2008 until October 2008. Defendant was then transferred to Northern State Prison, where he was confined from October 2008 until June 2009. Finally, when defendant testified at trial, he was again being housed at Yardville, where he had been since June 2009. As an adult, defendant had been incarcerated twice prior to his most recent conviction in January 2008.

The Division first became involved with Mary's biological mother in early February 2006. At that time, a daycare facility for one of T.R.'s other children notified the Division that T.R. had punched that child in the mouth. In addition, the HomeFront Shelter program contacted the Division in April 2006, relaying concerns that the biological mother was abusing her children.

On April 7, 2006, the Division removed the children from the biological mother's care through an emergency removal without a court order*fn3 and placed the children in a foster home.

The Division filed a complaint for guardianship to terminate the parental rights of defendant and the biological mother as to Mary in April 2008. At a hearing that same month, the trial court approved a plan of ...


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