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New Jersey Division of Youth & Family Services v. V.M.H.

Superior Court of New Jersey, Appellate Division

November 4, 2013

V.M.H., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF A.M., a Minor.


Submitted October 8, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-67-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Landry Belizaire, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Toni Lynn Imperiale, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (David Valentin, Assistant Deputy Public Defender, on the brief).

Before Judges Sabatino and Rothstadt.


Defendant V.M.H. ("Vincent"), [1] appeals from a judgment terminating his parental rights to his daughter, A.M. In this appeal, Vincent contends that the Division of Youth and Family Services[2] ("Division") did not prove by clear and convincing evidence the four statutory prerequisites (the "four prongs") to a court's termination of a parent's rights to their child. The Division and A.M.'s Law Guardian argue that the Division met its burden under the statute.

The statute permits a court to terminate a parent's rights only when:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a)]

Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition adequately supports the termination of Vincent parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial and credible evidence in the record as a whole). Accordingly, we affirm.


The Division originally filed this guardianship action against both Vincent and against A.M.'s mother, A.M.[3] ("Alice"). Before the trial, Alice relinquished her parental rights via a voluntary, identified surrender[4] to C.C. ("Carol"), a friend of her and Vincent. At the beginning of the trial, Vincent resided in New Jersey as an undocumented immigrant. We understand that Vincent is now living in Mexico as a result of being deported by Federal officials.

A.M. was born on August 18, 2008. At her birth, Alice and Vincent were unmarried, but living together. According to their friend Carol, the couple was, at times, homeless during the earliest stages of A.M.'s life, and she claims to have met them during that time. A.M. is now five years old, and has been in Carol's care since the Division removed her from her parents' home in October 2008.

By all accounts, A.M. is a happy child and in good physical health. A.M. has, however, been diagnosed as developmentally delayed. She requires speech therapy, and may need special education in the future. Carol has enrolled A.M. in both speech therapy and physical therapy.

At the time of A.M.'s removal in October 2008, the family lived in a three-room apartment in Paterson, which they shared with two male friends. The home was clean and well-organized, with a dresser and a closet, though the couple could not afford a bed. However, with public assistance, they had all the basic essentials for the baby, including clothes, formula, milk, child accessories, and a bassinet.

The Division conducted an emergent "Dodd removal"[5] of A.M. from her parents' home on October 17, 2008, following an incident of endangerment and neglect by Alice. On that night, Alice was drinking in a bar with a male friend — not Vincent. Alice left the then two-month-old A.M. alone, outside the bar, in a stroller. A.M. was dressed in only a t-shirt and diaper, in 45-50 degree weather. Her blanket smelled of beer, and there were beer caps in the stroller.

At some point, Alice's male friend emerged from the bar and, while stumbling, began to push the stroller. Two concerned women observed his actions and approached him to intervene. This caused the man to get upset, and he pushed the stroller toward the two women, telling them to take the baby. After this, the two women called the police who then arrested Alice and her friend. Alice was eventually convicted of child endangerment in the third degree, pursuant to N.J.S.A. 2C:24-4a. Meanwhile, authorities took A.M. to the emergency room at St. Joseph's Hospital in Paterson; she was unharmed.

During the incident, Vincent was at a friend's home, drinking. He later received a call from a friend who observed Alice's arrest, and then rushed to the hospital to meet his daughter. When he arrived at the hospital, his eyes were red, and he smelled of alcohol. Vincent admitted to the Division that he had had several beers earlier that night.

As a result, the Division did not permit Vincent to take A.M. home with him that night. Instead, the Division asked that he supply it with contact information for relatives or friends who would be able to look after A.M. Vincent said that he understood, and gave the Division two contacts: the numbers for Alice's sister, and Carol. The Division first tried to reach the maternal aunt, but received no response. It then succeeded in reaching Carol, who agreed to care for the child until the Division could make other arrangements. The Division then placed A.M. in Carol's care, following a background check and a home assessment.

Pursuant to an application by the Division, the Family Part conducted a hearing on October 21, 2008 at which the court determined that A.M.'s removal was proper, due to the imminent harm posed by "substance abuse, no parenting skills, [and] neglect." At that time, the court ordered Vincent and Alice to comply with substance abuse assessments, and to enter substance abuse treatment programs and parenting skills classes, as recommended by the Division; moreover, they were ordered to undergo psychological and/or psychiatric evaluations. The court also assigned the Office of the Public Defender as law guardian for A.M.

In accordance with the court's orders, Vincent enrolled in the Challenge Program, an organization which provides substance abuse treatment services, and he complied with drug screenings. As indicated by progress reports from November 2008 to September 2009, and in March and May 2010, he was compliant with the program and consistently received positive comments. By December 21, 2009, according to counselors, he was "ruled out for alcohol/drug abuse or dependency." Additionally, Vincent also enrolled in and completed a two-month parenting skills program.[6]

In addition to finding substance abuse programs for Vincent, the Division supervised and assisted the family after A.M.'s initial removal. Case worker Alex Colon visited Vincent at his home on October 20, 2008 in order to assess the home. She found the home to be "in good living condition" with the exception that the parents did not ...

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