NEW JERSEY DIVISION OF YOUTH & FAMILY SERVICES v. E.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5910-04T45910-04T4

NEW JERSEY DIVISION OF YOUTH

& FAMILY SERVICES,

Plaintiff-Respondent,

v.

E.B.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF

E.C.F.,

A Minor.

 
______________________________________________________

Submitted July 31, 2006 - Decided August 14, 2006

Before Judges C.S. Fisher and Grall.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-103-04.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Keri Ann Eglentowicz, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor E.C.F (Bertram Goltz, Designated Counsel, on the brief).

PER CURIAM

Following a trial, the parental rights of E.B. to his child, E.C.F., were terminated. E.B. appeals, arguing there was insufficient evidence to support that determination. We affirm.

E.B. is the biological father of E.C.F., who was born on May 5, 2003. The child's biological mother, E.F., had considerable involvement with the Division of Youth and Family Services (the Division), having given birth to ten children, none of whom remained in her custody by the time of the birth of E.C.F., her eleventh child. E.F. had tested positive for methadone at the time of E.C.F.'s birth, resulting in a referral to the Division. E.B. was identified by E.F. as the child's father; he was incarcerated at the time and was still incarcerated when the trial commenced.

After the child's birth, E.F. consented to placing the child in foster care for a brief period of time during which the Division filed an action seeking custody of the child. The child remained hospitalized until June 24, 2003 when she was released and turned over to the care of her foster mother, where she remains to this day.

Evidence was submitted during the course of the trial on April 22, 26, and 27, 2005. Judge Jo-Anne B. Spatola rendered her oral decision on June 14, 2005, concluding that E.B.'s parental rights to the child should be terminated. A judgment to that effect was entered the same day.

Judge Spatola correctly applied N.J.S.A. 30:4C-15.1, which mandates that, in order to terminate parental rights, the Division is required to prove, by clear and convincing evidence, that:

(1) The child's health and development have 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;

(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.

See also N.J. Div. of Youth & Fam. Serv. v. A.W., 103 N.J. 591, 604-05 (1986).

In appealing the judgment, E.B. argues that the judge's findings were not supported by the weight of the evidence. The standard of appellate review which we are required to apply calls for our deferral to a trial judge's factual findings when they are based on credible evidence in the record and unless we are convinced those findings are "so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). After careful review, we conclude that the record contains clear and convincing evidence to support the trial judge's findings and that the judge applied the correct legal standards in terminating defendant's parental rights.

Judge Spatola found the Division's proofs regarding each of the four statutory factors to be clear and convincing. She observed that E.B. was born in 1964. Like E.F., he had a history of drug use, as well as an extensive criminal history; Judge Spatola summarized that history in the following way:

On December 6, 2002, [E.B.] was sentenced to seven years in state prison with a three year parole disqualifier. This was the result of his plea of guilty to second degree possession of a controlled dangerous substance with intent to distribute same within 500 feet of public housing. This sentence was also to be served concurrently with one on an accusation. . . .

[E.B.] admitted to the Division's psychologist, Dr. Mark Singer, that he has an extensive prior juvenile and adult criminal history. He may not have characterized it, but it is fairly . . . characterized [as] extensive.

As a juvenile, for example, [E.B.] admitted to four arrests, one of which was for possession of controlled dangerous substance and resulted in a sentence to Jamesburg. He also admitted to six arrests for possession of controlled dangerous substance at age 18 and for possession of a controlled dangerous substance with intent to distribute and a violation of parole at 19 years of age, for possession of a gun and drugs at age 25, for possession of a gun and drugs at 28, for possession of a gun in '96. In addition, he violated parole by testing positive for drugs in 2000 and in October of 2001 he was arrested for possession of a controlled dangerous substance. For these offenses, [E.B.] received one, two, three and four year state prison sentences. . . . Despite this, in March of '02, [E.B.] was again arrested for possession of a controlled dangerous substance with intent to distribute same. It is this which resulted in his seven year, three year minimum mandatory period of incarceration, sentence which [E.B.] served in the county jail, and state prison, at a halfway house . . . where he currently . . . still resides.

As Judge Spatola recognized, E.B. was incarcerated when E.C.F. was born and was still incarcerated when the trial occurred. He had only seen the child one time in her entire life, when she was fifteen months old.

This evidence, as well as other evidence adduced at trial, provided clear and convincing proof of the presence of all four of the statutory factors. It may be true, as E.B. argues, that the child's health at birth was not endangered by his drug use, but E.B. knew of E.F.'s drug use, which did endanger the child's health, and did nothing to prevent this course of conduct. The judge found that E.B. and E.F. had a one-year relationship and that he knew she was then "getting high," as was he. In addition, because of his incarceration, E.B. was unable to adequately provide for the child. Judge Spatola also found that E.B. lacked "the emotional and physical resources needed to care for his daughter at this point in time," that the child was in need of permanent placement, that the child was bonded to the foster parents who sought adoption, and that the termination of E.B.'s parental rights would not do more harm than good. In acknowledging the reasonableness of the judge's decision and the particular need of the child for a permanent placement, we emphasize that N.J.S.A. 30:4C-15.1 contains a strong public policy in favor of permanency. In re Guardianship of K.H.O., 161 N.J. 337, 357-58 (1999). Children have a "paramount need" for permanent and defined parent-child relationships, In re Guardianship of J.C., 129 N.J. 1, 26 (1992), a need that will be served by our affirmance of the judgment entered in the trial court.

We affirm substantially for these and all the other reasons set forth in Judge Spatola's comprehensive and thoughtful oral decision.

Affirmed.

 

(continued)

(continued)

7

A-5910-04T4

RECORD IMPOUNDED

August 14, 2006