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New Jersey Division of Youth and Family Services v. M.D

November 2, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-63-11.

Per curiam.



Submitted October 10, 2012

Before Judges Reisner and Harris.

Defendant M.D. appeals from a September 26, 2011 order terminating his parental rights to his daughter, I.D. For the reasons that follow, we affirm.


We begin with a brief procedural history. I.D. was born in July 2007. The New Jersey Division of Youth and Family Services (Division)*fn1 took custody of the child in August 2009, because her mother, J.Y., was using heroin and her father, M.D., who was not living with J.Y. and I.D., had a significant history of criminal activity and violence. While the case was pending, M.D. was arrested multiple times. He also delayed or refused to cooperate with services the Division offered.

As of November 4, 2010, M.D. had completed parenting classes, and was seeking expanded visitation with the child. However, at the February 24, 2011 case management conference, counsel reported to the court that M.D. was in jail, having been incarcerated for violating a domestic violence final restraining order. A permanency hearing was held on June 23, 2011. At that point, M.D's attorney reported to the court that he had been unable to contact his client despite his best efforts, and there were outstanding warrants against M.D. relating to additional criminal matters. Consequently, the defense had been unable to schedule a psychological expert examination of M.D. The court approved the Division's goal of seeking to terminate parental rights.

The guardianship trial began on September 12, 2011. At the beginning of the trial, J.Y. made an identified surrender of her parental rights in favor of her father and his fiancee, J.R., who had been caring for the child since August 2009. The case then proceeded against M.D., who was incarcerated but was permitted to attend the trial.*fn2 The Division attorney reported that the State's expert had evaluated M.D. in jail, but "did not do a bonding [evaluation] for obvious reasons." M.D.'s counsel did not object to the State's failure to bring the child to the jail in order to do a bonding evaluation with the incarcerated defendant.

At the trial, the Division introduced its case records in evidence through the records custodian, and then presented testimony from Intake Worker Alexis Olivo. She recounted that

I.D. first came to the agency's attention in April 2009, when M.D., who was living separately from the child and her mother, reported that during a visit with the child, he noticed that she had burns on her feet. At that point in time, M.D. and J.Y. were involved in custody litigation over the child in the Family Part. The Division's investigation revealed that in February 2009, the child accidentally burned her feet while walking over a heating grate at a relative's house, M.D. had known about the burns since February, and his allegations of child abuse or neglect were unfounded.

The Division received a second referral on July 27, 2009, when an anonymous caller reported that one of J.Y.'s boyfriends had been arrested for heroin possession, J.Y. appeared to be under the influence of drugs when she was with the child, and drug dealing was taking place in her apartment. As a result of the Division's investigation, the child was removed from J.Y.'s custody on August 3, 2009, after J.Y. tested positive for heroin. During the investigation, Olivo tried repeatedly to contact M.D. but he did not return her phone calls. She was finally able to reach him on August 3, 2009.

M.D. expressed an interest in caring for the child, but Olivo explained to him that in light of his criminal record, including drug charges and domestic violence, the agency needed to perform a background check before placing the child with him. Olivo testified that, as a result of the April 2009 investigation, she learned that during the custody litigation, the court ordered M.D. to complete anger management classes and to undergo a psychological evaluation and a home assessment. During the July 2009 investigation, she learned that M.D. had ...

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