On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-138-10.
The opinion of the court was delivered by: Koblitz, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued March 20, 2012
Before Judges Graves, Koblitz and Haas.
The opinion of the court was delivered by KOBLITZ, J.A.D.
D.S.H. appeals the June 16, 2011 order terminating her parental rights. In doing so, she raises a question of first impression concerning the nature of legal fatherhood in the context of a termination of parental rights case.
D.S.H. is married to R.H. They have a child, Rachel,*fn1
who was born during the marriage. Six years after Rachel's
birth, a paternity test indicated that R.H. is not Rachel's biological
father. D.S.H. asks us to determine as a matter of law that R.H. is
Rachel's legal father.
We agree with D.S.H. that, under these circumstances, R.H. remains the legal father of Rachel. It is therefore not necessary, and would be contrary to Rachel's best interests, to permanently sever her bond with her mother for the sole purpose of allowing R.H. to adopt her.
D.S.H. and R.H. were married at the time Rachel was born in March 2004. R.H. was named as Rachel's father on her birth certificate. R.H. left the marital home in early 2005 and obtained a restraining order against D.S.H. because of her violence toward him.
The Division of Youth and Family Services (Division) first became involved with the family on May 17, 2006, when R.H. reported that D.S.H.'s home, where Rachel was living, had "deteriorated" and "smell[ed] of urine and feces," and that there were "clothes all over." R.H. stated he did not "want his child to live like that." The Division conducted an investigation and found the home to be disheveled. D.S.H. refused any assistance from the Division.
On August 31, 2006, the Division received a referral alleging that D.S.H. was using crack and was on the brink of eviction. During this investigation, D.S.H.'s behavior was reported as erratic and "frantic." At some point, she started "crying, panting and breathing hard." The home was still in disarray. D.S.H. denied using crack at the time, but admitted to using it in the past. The Division received four additional referrals alleging substance abuse.
On April 5, 2008, the Division received a referral alleging that D.S.H. attempted suicide by cutting both wrists while four-year-old Rachel was in the home. D.S.H. arrived at East Orange General Hospital Crisis Unit agitated and with superficial cuts on both wrists. She tested positive for cocaine. As a result of this incident, the Division removed Rachel from the home and placed her with R.H. See N.J.S.A. 9:6-8.29 and .30.
On April 7, 2008, D.S.H. told the Division that R.H. was not Rachel's biological father. Two days later, D.S.H. tested positive for cocaine and was referred to St. Michael's Medical Center for intensive outpatient treatment. She tested positive for cocaine again one month later. The Division subsequently referred D.S.H. for further substance abuse treatment.
On November 3, 2008, the Division received another referral. A social worker informed the Division that D.S.H. was thirty-three weeks pregnant and had tested positive for cocaine at least three times during the pregnancy.
D.S.H. gave birth to Catherine in November 2008. Both D.S.H. and Catherine tested positive for cocaine at Catherine's birth. Catherine was removed from D.S.H.'s care and placed with her biological father upon the baby's release from the hospital. He was awarded sole physical and legal custody of Catherine by order dated January 20, 2010. The Division did not at any time seek to terminate D.S.H.'s parental rights to Catherine.
On November 18, 2009, the Division presented a permanency plan for termination of D.S.H.'s parental rights and reunification of Rachel with her putative biological father, W.W. The judge rejected the plan, citing the Division's failure to locate W.W. and the absence of a paternity test indicating he is Rachel's biological father.
D.S.H. was allowed supervised visitation with Rachel at a supervised visitation program. Most of the visits were positive, but the program terminated visitation on July 28, 2010, after D.S.H. missed three consecutive visits.
In August 2010, Dr. Peter DeNigris, the Division's expert psychologist, conducted a psychological evaluation of D.S.H. and a bonding evaluation between her and Rachel. He also conducted a bonding evaluation between R.H. and Rachel.
Dr. DeNigris opined that D.S.H.'s history of poor judgment, her arrest record, the suspension of her home health aide certification and five-year period of unemployment, as well as a failure to plan for Rachel's future combined to negatively effect her ability to parent. Dr. DeNigris further found D.S.H.'s struggles with mental health issues and the unexpected loss of her mother had a deleterious affect. He recommended that D.S.H. engage in psychotherapy in order to achieve reunification with Rachel.
Dr. DeNigris further determined that a bond existed between D.S.H. and Rachel. He stated that he would support reunification with D.S.H. only if she remained compliant with recommended treatment. If D.S.H. failed to complete the treatment, he advised the Division to consider other alternatives, such as termination of D.S.H.'s parental rights in order for R.H. to adopt Rachel.
Dr. DeNigris also found a bond existed between Rachel and R.H., and that she believed R.H. to be her "daddy." He concluded that the severance of either bond in its ...