On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-143-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2012
Before Judges Axelrad and Haas.
Defendant J.V. (Juan) appeals from the January 26, 2012 judgment of
guardianship of the Family Part terminating his parental rights to his
daughter, R.S.V. (Regina) born on November 2, 2010.*fn1
He argues the Division of Youth and Family
Services*fn2 (Division) did not prove the third prong
of the termination statute by clear and convincing evidence. The Law
Guardian supports the termination on appeal as it did before the trial
Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition overwhelmingly supports the termination of Juan's parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2009) (holding a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial credible evidence in the record as a whole). Accordingly, we affirm substantially for the reasons stated by Judge Garry J. Furnari in his comprehensive oral opinion of January 20, 2012.
Juan and E.G. (Ellen) are the unmarried parents of four children, K.V. (Kate), age nine at the time of trial, X.V. (Xander) born in 2006, J.A.V.-G. (James), born in 2009, together with Regina, who is the only child involved in this appeal. Each parent has an extensive history of substance abuse. The Division first became involved with the family after Xander was born and both he and Ellen tested positive for opiates. Juan was addicted to heroin. Despite the services provided to them by the Division, neither parent was able to overcome their addictions or to care for their son. In 2008, Juan and Ellen's parental rights to Xander were terminated and he has been adopted by the foster parents who had cared for him since his birth.
In 2009, James was born addicted to methadone. The Division obtained custody to him prior to his release from the hospital and he was placed with Xander's adoptive parents. Juan and Ellen's parental rights to James were terminated in 2011 and we recently affirmed the trial judge's determination in an unpublished decision. N.J. Div. of Youth & Family Servs. v. J.V., No. A-5041-10 (App. Div. November 15, 2012) (slip op. at 3). James' foster parents will now be able to adopt him and he will continue to live with his brother Xander.
In May 2009, Juan suffered a stroke, which left him paralyzed and confined to a wheelchair. He continues to have uncontrolled seizures and he remains dependent on methadone. He does not contest that he is incapable of caring for a child.
After the guardianship complaint concerning James had been filed, the Division learned that Juan and Ellen had an older daughter, Kate, who was living with Ellen's sister, H.P. (Henrietta). When Kate was three years old, Ellen told Henrietta that she was going into a drug program and needed to leave Kate in her care. Ellen never returned for the child. When Kate was four, Henrietta testified she went to court to seek custody, but was told by the judge she had to report what had happened to the Division. She did not do so and, the next year, was granted custody of Kate by a different judge.
Henrietta did not know that Juan and Ellen had two other children until a Division caseworker contacted her in October 2010. Ellen and Juan expressed an interest in having Henrietta assume custody of James and the Division investigated this possibility. While the process was underway, a caseworker told Henrietta not to leave Kate with either Juan or Ellen. Henrietta ignored this direction and admitted to leaving the child in Ellen's unsupervised care. A criminal background check revealed that Henrietta had previously been arrested on a theft charge in Tennessee.
In February 2011, the Division sent Henrietta a "non-placement letter" advising her it would be in James' best interest to remain in his current placement with Xander, where he had lived since being discharged from the hospital. In addition, Henrietta's apartment was too small to accommodate both James and Kate. Henrietta was also not a permanent resident and was in the United States on a temporary work visa. Henrietta did not appeal this determination.
On November 2, 2010, Regina, the child who is the subject of the current appeal, was born preterm at thirty-two weeks. She weighed less than three pounds and had methadone in her system. Ellen told the Division she was unaware that she was pregnant, received no prenatal care and had been using "street methadone." Ellen left the hospital against medical advice the day after Regina was born.
Juan and Ellen proposed that Henrietta be granted custody of Regina and Henrietta expressed a willingness to do so. Regina remained in the NICU until December 10, 2010, where she was treated for various medical issues, including respiratory problems and Hepatitis C. The Division placed Regina with the licensed foster parents who had been caring for her brothers, Xander and James. The foster home consists of two parents and the mother stays at home to care for the children.
The Division informed Henrietta that Regina was "considered medically fragile" and needed a Specific Specialized Home (SHPS home) because of the drug exposure and low birth weight. Therefore, Henrietta would be required to become a licensed foster parent in order to take custody of Regina. Henrietta obtained a ...