NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. T.K.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3709-04T43709-04T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.K.,

Defendant-Appellant.

________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF T.L.,

A Minor.

_________________________________________

 

Submitted November 10, 2005 -- Decided

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FG-09-106-04.

Yvonne Smith Segars, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the brief).

Peter C. Harvey, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Serena C. Robinson, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor T.L. (Christopher A. Huling, Assistant Public Defender, on the brief).

PER CURIAM

T.K. appeals the termination of his parental rights to his biological daughter, T.L. We affirm.

T.L.'s biological mother suffers from severe cognitive deficits and psychiatric problems, including paranoid schizophrenia, which render her incapable of caring for T.L., along with T.L.'s four siblings. All of the children live with a maternal aunt in Georgia who wants to adopt them. The termination of the mother's parental rights is not contested.

T.K was not identified as T.L.'s father and located until the spring of 2003. T.K. did not know of T.L.'s existence until then and had had no contact with her during the first five years of her life. Even after learning of her existence, T.K. did not offer himself as a caregiver. Rather, he simply wants to maintain some contact, namely visitation, with the child. Of course, as the maternal aunt wishes to adopt T.L., along with her siblings, and such adoption is feasible, such continued contact cannot be provided through the Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7. T.L. can only be freed for permanent placement with her maternal extended family through termination of T.K.'s parental rights.

T.K. was born on November 15, 1967, and he is presently thirty-eight years old. He shares a first-floor apartment in Jersey City with his grandmother; his mother resides in the second-floor apartment. He runs an automobile detailing and repair business next door to his apartment. T.K. is a registered sex offender under Megan's Law as a result of his conviction for endangering the welfare of a child (having sex with a sixteen-year old girl), and receives sex therapy.

T.K. did not testify at his termination trial and, although he underwent a psychological and bonding evaluation conducted on his own behalf, he chose not to introduce the results of the evaluations into evidence at trial. He attended the morning session on the first day of trial, but he did not return to court for the afternoon session, nor did he return to court for closing arguments and the oral decision on the second day of trial. The only witness present at trial was Michael Locicero, a Family Service Specialist with DYFS. As to T.K., Locicero stated:

[T.K.] was very frank with me. He indicated to me that he knows that because of past problems [i.e., his conviction of a Megan's Law offense], he's not able to have physical custody of his daughter. He wished for his mother to have shared custody with the caretaker in Georgia. He's also asked that some arrangements be made so that either he or his mother be provided with information about his daughter and [visitation] with his daughter when she's in the Jersey City area. He made it clear to me that he recognized that the child is being taken care of, and he did not wish to disrupt the child's placement.

In terms of T.K.'s relationship with T.L., Locicero stated that he observed T.L. interact with T.K. on one occasion, while they were waiting to undergo a bonding evaluation. T.L. did not recognize T.K. and appeared anxious. T.K. did attempt to engage T.L. by bringing her a gift, attempting to make eye contact with her, and explaining to her that he was her father. However, T.L. seemed "mainly confused by that and somewhat nervous being with him." Locicero concluded that, essentially, there is no relationship between T.K. and T.L.

By contrast, the interaction Locicero observed between T.L. and the maternal aunt was open, relaxed and affectionate. Both T.L. and her siblings appeared very attached to the aunt and clearly viewed her as their mother, calling her "mommy" or "mom."

Although T.K. proposed that custody and visitation be shared with his mother, T.L.'s paternal grandmother, the grandmother had no relationship with T.K., did not take advantage of visitations DYFS offered during the termination proceedings, nor offers of communications with T.K. through letters.

Parents, of course, have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). However the right is not absolute and may yield to the State's parens patriae responsibility to protect the welfare of children. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 505 (2004); In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Sometimes that protection warrants severing the parental ties so that the child may be free from a harmful situation and move on to some normalcy in his or her environment.

Here, DYFS sought to terminate T.K.'s rights pursuant to N.J.S.A. 30:4C-15.1(a), which requires DYFS to prove clearly and convincingly that:

(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.

"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., supra, 161 N.J. at 348. "In most cases proofs will focus on past abuse and neglect and on the likelihood of it continuing." In re Guardianship of J.C., supra, 129 N.J. at 10. "However, the cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing the child harm." Ibid.

Here, the trial judge concluded that all four prongs of the four-part test had been met clearly and convincingly. We are satisfied the judge's findings and conclusions in this respect are well supported by the record and the applicable law. Certainly T.K. might not be faulted for not being aware of T.L.'s existence until that fact was finally disclosed by the mother and he was finally located by DYFS. His conduct as a "parent" must, therefore, be evaluated "from the time he gained sufficient knowledge which would warrant that he 'perform the regular and expected parental functions of care and support of the child,' because it is from that point that he may be deemed to have been 'able to do so.'" In re Adoption of a Child by P.F.R., 308 N.J. Super. 250, 261 (App. Div. 1998) (quoting N.J.S.A. 9:3-46a(1)). But even after he became aware of T.L.'s existence, T.K. evidenced no interest in ever providing her with the solitude, nurturing and care a child of that age needs. In the time T.K. has known of T.L.'s existence, he has expressed no desire to engage in a parental relationship with her through regular communications or by providing her with financial support. Moreover, he has not offered to provide a safe and stable home for her. The fact that to do so he must overcome the hurdle of N.J.S.A. 9:2-4.1(b) is not of T.L.'s doing.

 
Affirmed for the reasons set forth by Judge Lawrence P. De Bello in his February 24, 2005, oral decision.

N.J.S.A. 9:2-4.1(b) states:

Notwithstanding any provision of law to the contrary, a person convicted of . . . endangering the welfare of a child under N.J.S.[A.] 2C:24-4 shall not be awarded the custody of or visitation rights to any minor child, except upon a showing by clear and convincing evidence that it is in the best interest of the child for such custody or visitation rights to be awarded.

(continued)

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7

A-3709-04T4

RECORD IMPOUNDED

November 28, 2005