On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-81-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2012
Before Judges Yannotti, Harris and Hoffman.
Defendant T.P. appeals from the October 31, 2011 judgment of
guardianship entered by the Family Part terminating his parental
rights to his son, T.F. (fictitiously referred to as Todd).*fn1
Defendant contends that plaintiff New Jersey Division of
Youth and Family Services (the Division)*fn2 failed to
prove by clear and convincing evidence two of the four requisite
statutory factors to establish that Todd's best interests would be
served by terminating his father's parental rights. We disagree and
Todd, born in June of 2004, is the biological child of T.F. and defendant. Todd is autistic - he is non-verbal and not toilet trained. It is unlikely he will ever be able to live independently. He was born at twenty-eight weeks gestation, weighing one pound eleven ounces. T.F. tested positive for marijuana at the time of Todd's birth. Defendant and T.F. never lived together.
Todd lived with T.F. and his maternal grandmother, D.W., during the first year of his life. In 2006, a Family Part judge granted D.W. legal and physical custody of Todd due to T.F.'s substance abuse.
At the time of Todd's birth, defendant was incarcerated in the Monmouth County Jail on drug-related charges. He later was sentenced to state prison on those charges and was incarcerated from February 26, 2005 through April 14, 2008.
Upon his release from prison, defendant went to live with his brother in Howell. Todd came to live with defendant three weeks later. On September 10, 2008, Todd's school teacher reported to the Division that he arrived at school with bruises and scratches on his body. The Division investigated the referral and had Todd evaluated at Jersey Shore Medical Center. The examining physician found linear and parallel bruising on Todd as well as bruising along his left ear, and opined that the bruises were not accidental, but inflicted. Although at the time Todd was in the physical custody of his grandmother, D.W., he was staying with defendant.
One week later, the Division received another report from Todd's school. This time Todd came to school with a swollen lip and a large bruise on his shoulder. The Division had Todd examined by the same physician who examined Todd the previous week. He indicated the bruises to Todd's shoulder appeared to be inflicted by an object because it left a patterned bruise. Todd was still staying with defendant at the time of this second incident. According to defendant, after this later incident, "they gave him back to his grandmother, D.W."
T.F. became known to the Division on August 3, 2008, when she gave birth to a daughter who tested positive for cocaine. A Family Part judge approved the removal of the daughter from T.F.'s custody and her placement in a foster home.
On September 26, 2008, the Division received an anonymous phone call regarding drug activity in a boarded-up house located in Asbury Park. The Division conducted an investigation and found Todd living with his mother and other adults in the house, which was in disrepair and contained drug paraphernalia. The Division removed Todd from the house pursuant to N.J.S.A. 9:6-8.29 and placed him at St. Clare's, a special home service provider for medically fragile children.
On October 30, 2008, defendant began to visit Todd at St. Clare's under the supervision of the Division. As of December 2008, the Division's plan for Todd was reunification with defendant upon his successful completion of services and securing appropriate housing.
On January 27, 2009, the Division conducted a five-month enhanced case review. During the meeting, defendant stated that he did not believe Todd has autism. Additionally, he said he was looking for a place to live so that Todd could live with him. The caseworker provided defendant with paperwork to attend a parenting workshop about children with autism scheduled to begin March 2, 2009. At the end of the review, defendant advised the caseworker that he tested positive for cocaine during a recent parole drug screening. He claimed that he did not use cocaine, but said there could have been cocaine on the tip of a cigarette a friend gave to him.
On February 5, 2009, defendant again informed his caseworker that he tested positive for cocaine. This time defendant stated he may have tested positive due to being around people smoking crack. He informed the worker that "Project Free" was recommending that he attend a drug treatment program three days per week; however, he said he could not attend because it interfered with his employment.
On February 10, 2009, the police arrested defendant and charged him with defiant trespass and possession of crack cocaine and marijuana. The Division learned of the arrest through a YMCA visitation worker.
On February 27, 2009, defendant was arrested for violating his parole. Defendant's parole officer informed the Division that defendant violated his parole by not showing up to his weekly parole meetings and failing to notify parole of his February 10, 2009 arrest.
On March 12, 2009, the case worker visited defendant in jail and advised him that she would need to find another autism parenting workshop for him because defendant's incarceration prevented him from completing the workshop he had been attending. Defendant again said he could not attend drug counseling three days a week because it would interfere with his employment.
On March 23, 2009, defendant was released from jail. Two days later, the caseworker met with defendant and his new girlfriend, M.S., at Todd's school to discuss Todd's progress. Todd's teacher, speech therapist, the school principal, and a representative from St. Clare's attended the meeting. The caseworker informed defendant that Todd had been acting out, which she attributed to Todd missing him during his incarceration. Additionally, the caseworker informed defendant that she referred him for a substance abuse evaluation.
On March 26, 2009, defendant visited with Todd. After the visit, the caseworker informed him about an upcoming neurological appointment for Todd on April 13, 2009 and that she had found another autism parenting program starting on April 6, 2009. Defendant agreed to attend both. However, defendant failed to attend Todd's neurological appointment.
On April 2, 2009, defendant and M.S. visited with Todd. At the visit, M.S. advised the caseworker that she would like to help defendant take care of Todd. Defendant and M.S. attended an autism parenting class on April 6, 2009. On April 7, 2009, defendant appeared late for the substance abuse evaluation at the Division office. Due to defendant's late arrival, the case worker had to reschedule the evaluation for April 16, 2009; however, defendant failed to appear on the rescheduled date.
On April 23 and 29, 2009, defendant failed to attend scheduled visits with Todd. On April 28, 2009, defendant ...