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

November 26, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
M.M., DEFENDANT-APPELLANT. IN THE MATTER OF THE GUARDIANSHIP OF A.J.M. AND M.L.M., MINORS.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-01-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 30, 2012

Before Judges Reisner, Yannotti and Hoffman.

M.M. appeals from an order entered by the Family Part on June 27, 2011, terminating his parental rights to two minor children, A.J.M. and M.L.M. For the reasons that follow, we affirm.

I.

A.J.M. was born on September 8, 2003, and M.L.M. was born on August 26, 2004. J.M. is the biological mother of the children and M.M. is their biological father. On June 11, 2008, J.M. voluntarily committed herself to Kimball Medical Center (Center) after overdosing on heroin and having suicidal thoughts. The Center informed the Division of Youth and Family Services (Division) of J.M.'s commitment.*fn1 The Center told the Division that J.M. was a poly-substance abuser, had used heroin for fourteen years, and suffered from major depressive disorder.

The Division also learned that M.M. had recently relapsed, was using heroin and Xanax, and had been diagnosed with bipolar disorder as well as poly-substance abuse. The Division additionally learned that M.M. had been evaluated at the Center several times. His last visit was on May 18, 2008, when he overdosed on Xanax.

At the time of J.M.'s commitment, A.J.M. and M.L.M. were staying with a paternal aunt. On June 11, 2008, M.M. and his mother agreed to a safety plan for the children, which provided that M.M. would move with the children to his parents' home, and M.M. would be supervised when he was with the children. M.M.'s mother subsequently informed the Division she was concerned about M.M.'s stability, and she was no longer willing to supervise his contact with the children.

In June 2008, the Division commenced an action in the Family Part seeking custody, care and supervision of the children. Following a hearing on September 11, 2008, the court entered an order granting the relief sought by the Division.

In March 2009, J.M. and M.M. were arrested on drug charges. The trial court thereafter conducted a permanency hearing. The court approved the Division's plan for termination of J.M.'s and M.M.'s parental rights and adoption of the children by their maternal grandparents. In June 2009, the children were placed in the care of their maternal grandparents in Florida. On July 2, 2009, the Division filed its guardianship complaint.

In November 2009, M.M. told a Division caseworker he had relapsed and was using heroin. M.M. was on probation at the time, and he violated the conditions of probation by using controlled substances. In April 2010, M.M. was re-incarcerated. Several months later, J.M. surrendered her parental rights to the children. M.M. was admitted to the Drug Court program, and in July 2010, he began in-patient drug treatment.

The trial court conducted a trial on the Division's guardianship complaint and on June 27, 2011, filed a written opinion in which it concluded that the Division had presented clear and convincing evidence establishing all four prongs of the "best interests" test for termination of parental rights established by New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591 (1986), and codified in N.J.S.A. 30:4C-15.1(a). The court entered an order dated June 27, 2011, terminating M.M.'s parental rights to the children. This appeal followed.

M.M. concedes that the Division met the first prong of the best interests test and established that the children had been harmed by their relationship with him. M.M. argues, however, that the Division failed to show: (1) he is unable or unwilling to eliminate the harm; (2) it made reasonable efforts to eliminate the reasons for the children's ...


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