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New Jersey Division of Youth and Family Services v. O.F.A.

Superior Court of New Jersey, Appellate Division

June 7, 2013

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
v.
O.F.A. and F.A., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF O.E.A., a minor.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 30, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-78-09.

Joseph E. Krakora, Public Defender, attorney for appellant O.F.A. (Glenn D. Kassman, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant F.A. (Angelo G. Garubo, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Cristina Ramundo, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor O.E.A. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

Before Judges Axelrad, Sapp-Peterson and Haas.

PER CURIAM

In these two consolidated cases, defendants O.F.A. (Olivia)[1] and F.A. (Floyd) appeal from the November 30, 2011 judgment of the Family Part terminating their parental rights to their son, O.E.A. (Evan). They argue the Division of Youth and Family Services[2] (Division) did not prove the four prongs of the termination statute by clear and convincing evidence. The Law Guardian supports the termination on appeal.

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 defendants' 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.

I.

This is the second time this family has been before us. On April 27, 2011, we reversed the trial court's decision to dismiss the Division's guardianship complaint following the completion of its case at trial. N.J. Div. of Youth & Family Servs. v. F.A. and O.F.A., No. A-5652-09 (App. Div. April 27, 2011). We found the Division had presented a prima facie case for termination of parental rights, sufficient to withstand a motion to dismiss. (Slip op. at 18). Therefore, we remanded the matter for a new trial before a different judge. Id. at 26. We set forth the background facts from our earlier opinion.

Olivia and Floyd are the biological parents[3] of Evan, who was born in 2004 in Maryland. Id. at 3. Olivia and Floyd also have an older daughter who resides with relatives in Nigeria. Evan is the only child involved in this appeal. Ibid. The parents immigrated to the United States from Nigeria in 1997 and neither are citizens of the United States and neither has a valid visa. Ibid. However, because Evan was born in this country, he is an American citizen.

After she assaulted Floyd in 2005, Olivia was committed to a psychiatric hospital in Maryland, where she continues to reside. Ibid. Floyd moved with Evan to New Jersey. The family first came to the Division's attention in October 2006, when New Jersey Transit Police found Floyd and two-year-old Evan sleeping at Newark's Penn Station. Ibid. Because Floyd had little money or food, was unable to provide suitable housing for himself or Evan at that time, and had no plan for doing so, the Division effected an emergency removal. Id. at 3-4. In November 2006, a Family Part judge conducted a fact-finding hearing and determined that Floyd was unable to care for Evan due to his lack of housing and employment. Id. at 4. The judge also found that Olivia was similarly incapable because of her commitment to the psychiatric hospital. Ibid.

Evan has remained in foster care since he was removed from Floyd's care in October 2006. He has lived with his current foster parent, Ms. Thomas (a pseudonym) since January 2008. Thomas has expressed a strong desire to adopt Evan. In October 2008, the Division filed a guardianship complaint seeking to terminate Olivia and Floyd's parental rights so that Evan could be adopted. As noted above, that complaint was dismissed by the trial judge, but we ordered the complaint reinstated in our April 27, 2011 opinion.

On the remand, the matter was assigned to Judge David Katz, who conducted an eight-day trial on non-consecutive days between October 20 and November 30, 2011. The Division presented the testimony of caseworker Kali Holland, Thomas, and its expert, Dr. Mark Singer. Olivia and Floyd each presented an expert, Dr. Andrew Brown and Dr. Mathew Johnson, respectively, and the Law Guardian relied upon the expert testimony of Dr. Antonio Burr.[4]Olivia's guardian ad litem presented the testimony of her treating physician, Dr. Chineye Ekoh. Neither Olivia nor Floyd testified. Because she could not leave the hospital to attend the trial, Olivia participated by telephone.

A.

After she was committed to the psychiatric hospital, Olivia visited with Evan on only four occasions between 2005 and September 2006. The last of these visits was through the fence of the hospital's courtyard. Once the Division became involved, it attempted to arrange contact for the child through Olivia's social workers. However, the hospital advised the Division that it did not allow its patients to visit with children. In addition, Olivia did not independently request the opportunity to visit with Evan. Nevertheless, the Division arranged for Olivia to speak with Evan by telephone and sent her photographs of him on two occasions.

Dr. Singer performed a psychological evaluation of Olivia. She told him she did not want to remain with Floyd, planned to stay in Maryland, and hoped to care for Evan with the assistance of her godfather and an aunt. She denied having a mental illness and believed her medication was only a vitamin.

Following his evaluation, Dr. Singer concluded Olivia suffers from schizoaffective disorder, and is bipolar, a "chronic" condition that "creates significant deficits in thought processes" and causes "delusions and hallucinations, as well as significant deficits in the affective realm, meaning things like mania and depression." Dr. Singer opined that Olivia could not function as a stable individual outside the confines of a controlled facility. Dr. Singer testified that Evan did not see Olivia as a parental figure and the child would not have a significant reaction if Olivia's parental rights were terminated.

Olivia's treating physician, Dr. Ekoh, agreed with Dr. Singer's conclusion that Olivia suffers from schizoaffective disorder of the bipolar type. Dr. Ekoh recommended that Olivia remain hospitalized to enable her to receive the twenty-four hour care she needs.

Dr. Brown conducted a psychological evaluation of Olivia, but he was unable to complete a bonding evaluation at the hospital with Evan because the child became upset and asked to go home. Dr. Brown opined that Evan showed no evidence of attachment to Olivia and he conceded she could not adequately parent him.

B.

After Evan was removed from Floyd in 2006, the Division attempted to assist Floyd in reuniting with his son. In November 2006, the Division scheduled a psychological evaluation for Floyd to determine necessary services and offered him parenting classes. He refused to attend parenting skills classes or counseling. The Division took Floyd to the Consulate General of Nigeria in New York City in an attempt to sort out his immigration issues, but he did not follow up.

Although he visited with Evan on a weekly basis, Floyd continued to live a transient life. Holland visited two of his temporary residences in 2009. Neither was suitable for a child. In December 2010, Floyd told the Division he was going to live with a "church family." However, this did not pan out. Floyd did not cooperate with the Division's attempt to obtain housing for him through the Newark Housing Authority. At the time of the trial, Floyd refused to allow the Division to access his current residence. He told the Division he worked at a car lot, but he would not divulge the name of his employer or provide any proof he was actually employed.

Floyd consistently told the Division that his plan was to reunite with Olivia and take Evan to Nigeria with them to live. He was not willing to return to Nigeria without Olivia. As noted above, Olivia has no desire to resume living with Floyd or to return to Nigeria.

Dr. Singer conducted three psychological evaluations of Floyd. Floyd told the doctor that Olivia did not suffer from a mental illness and that he could cure her "through prayer." Dr. Singer opined that Floyd's reunification plan was not viable and, because Floyd was not open to other alternatives, the doctor testified that the termination of Floyd and Olivia's parental rights was the only option available to provide Evan with permanency.

Dr. Singer conducted a bonding evaluation and concluded that Evan understands Floyd is his father and a significant figure in his life. However, Evan does not perceive his father as an emotional, consistent, or nurturing figure. Evan told Dr. Singer he wanted to live with Thomas and did not want to go to Nigeria. Dr. Singer testified that, if Floyd's parental rights were terminated, Evan would experience "a negative reaction to such a loss." However, the child had distanced himself from Floyd over the ...


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