NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.L.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2331-07T42331-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.L.,

Defendant-Appellant,

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF T.E.L.S., a minor.

___________________________________

 

Submitted December 2, 2008 - Decided

Before Judges Fuentes, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FG-04-105-07.

Yvonne Smith Segars, Public Defender, attorney for appellant (Chanima K. Odoms, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jim Harris, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

A.L., the biological father of T.E.L.S., a twelve-year-old girl born August 12, 1997, appeals from the September 26, 2007 order of the Family Part, terminating his parental rights to his daughter. The parental rights of A.E.S., the child's biological mother, were terminated by an earlier order of March 7, 2007, but she does not appeal. We affirm.

A.L. is currently incarcerated at the Garden State Youth Correctional Facility, having been sentenced on January 26, 2001, on convictions of various crimes, including first-degree aggravated manslaughter, to an aggregate term of fifteen years of imprisonment. His expected release date is January 15, 2013.

T.E.L.S. suffers from multiple disabilities, including hyperactivity, speech difficulties, developmental delays, a heart murmur, and a history of urinary frequency and bed wetting. She is classified as moderately and cognitively impaired, making her eligible for special education services.

On March 24, 2005, plaintiff, the New Jersey Division of Youth and Family Services (DYFS), filed a complaint against A.E.S. and A.L., alleging abuse and neglect of T.E.L.S. On April 28, 2005, DYFS was granted custody of the parties' daughter, who was then placed with her maternal grandmother, T.R. Following a fact-finding hearing on August 17, 2005, the trial court determined that A.E.S. abused and neglected her daughter. At a compliance review hearing conducted on October 27, 2005, the court directed that DYFS file a guardianship complaint to terminate the parental rights of both parents.

On April 1, 2006, A.L. voluntarily surrendered his parental rights to T.E.L.S. and identified T.R. as the individual he wished to adopt his daughter. Six days later, A.E.S. also voluntarily surrendered her parental rights to T.E.L.S. in favor of T.R. On May 3, 2006, the court entered an order terminating the parental rights of both parents and awarded guardianship of T.E.L.S. to DYFS to consent to the child's adoption by T.R.

Unfortunately, in September 2006, T.R. advised DYFS that she could no longer care for T.E.L.S. and requested DYFS to remove the child from her custody. In December 2006, DYFS removed T.E.L.S. from T.R.'s custody and placed her in a mentor foster home. This removal of T.E.L.S. from the care of her grandmother negated the identified surrenders of A.E.S. and A.L.

On February 6, 2007, DYFS filed a guardianship complaint. On March 5, 2007, a default was entered as to A.E.S. On March 7, 2007, following a proof hearing, the trial court entered a judgment of guardianship, supported by an oral decision, terminating the parental rights of A.E.S. to T.E.L.S. In April 2007, T.E.L.S. was placed with her current foster family, which family also serves as the caretaker for T.E.L.S.'s brother, J.M. The foster family desires to adopt both T.E.L.S. and J.M.

A trial was conducted in the matter on August 6, 2007. Testifying on behalf of DYFS was Amanda Gray, a DYFS case manager. Although present at trial, defendant did not testify on his own behalf. However, he did present testimony from Norma Figueroa, a non-relative acquaintance, who is currently serving as the caregiver for another child of A.L.

On September 25, 2007, the trial court rendered a written decision, terminating A.L.'s parental rights to T.E.L.S. A confirming order was entered the following day.

On appeal, A.L. argues:

POINT I.

THE TRIAL COURT ERRED IN TERMINATING THE PARENTAL RIGHTS OF THE DEFENDANT.

A. THE EVIDENCE ADDUCED AT TRIAL DID NOT SUPPORT THE COURT'S FINDING THAT THE STATE MET PRONG ONE OF N.J.S.A. 30:4C-15.1(a).

B. THE EVIDENCE ADDUCED AT TRIAL DID NOT SUPPORT THE COURT'S FINDING THAT THE STATE MET PRONG TWO OF N.J.S.A. 30:4C-15.1(a).

C. THE EVIDENCE ADDUCED AT TRIAL DID NOT SUPPORT THE COURT'S FINDING THAT THE STATE MET PRONG THREE OF N.J.S.A. 30:4C-15.1(a).

D. THE EVIDENCE ADDUCED AT TRIAL DID NOT SUPPORT THE COURT'S FINDING THAT THE STATE MET PRONG FOUR OF N.J.S.A. 30:4C-15.1(a).

Termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 103 (2008); N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Such actions require proof by clear and convincing evidence. E.P., supra, 196 N.J. at 103. Termination actions brought under N.J.S.A. 30:4C-15.1a, are decided under a four-part "best interests of the child" standard first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-611 (1986), and now codified in N.J.S.A. 30:4C-15.1a. Ibid.

An appellate court should not disturb the "'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)) (alteration in original). Simply stated, "[o]nly when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

We have considered appellant's arguments in light of the applicable law, and have determined that the arguments are without merit. R. 2:11-3(e)(1)(E). We conclude for the reasons stated by the trial judge in his written decision of September 25, 2007, that the evidence clearly and convincingly establishes that T.E.L.S.'s best interests, assessed under the statutory standard, N.J.S.A. 30:4C-15.1a, warrants termination of appellant's parental rights. R. 2:11-3(e)(1)(A). Nevertheless, we add the following comments.

On appeal, defendant does not challenge the trial court's determination that he was unable to personally care for T.E.L.S. In fact, appellant, through his counsel, conceded that issue at trial: "there really is no controversy with the facts with regard[] to his incarceration and him not being able to care for the child. So he is waiving any right to [testify]." Rather, appellant's primary contention on appeal, as interwoven through his arguments challenging the four prongs of the best interests test, is the same as presented at trial, that is, the trial court and DYFS failed to consider Figueroa as a viable placement option for T.E.L.S. Appellant asserts that his successful search for a caretaker proves his concern and willingness to care for his daughter. Lastly, he contends that he is "being condemned for his prior criminal acts and his concern for his child is being totally disregarded." We disagree.

Contrary to appellant's argument, the trial court did consider Figueroa's offer to serve as caretaker for T.E.L.S., but rejected her offer to serve in that capacity, determining that it was not in the best interests of the child. The court found that Figueroa is not a relative of T.E.L.S. and only met the child on one occasion, several months prior to trial. The court also determined that Figueroa was neither aware of T.E.L.S.'s multiple disabilities, nor expressed any prior interest in the termination case. We conclude that the record adequately supports the trial court's conclusion rejecting Figueroa as a caretaker of T.E.L.S. in favor of her present foster parents.

T.E.L.S. is emotionally and psychologically fragile. She suffers from multiple disabilities, including hyperactivity, speech difficulties, developmental delays, a heart murmur, and a history of urinary frequency and bedwetting. She is also classified as moderately and cognitively impaired. The present foster family, where T.E.L.S. has resided since April 2007, wishes to adopt T.E.L.S. and provide her with a permanent home. To the contrary, appellant did not suggest that Figueroa serve as a permanent placement for his daughter, but only as someone to care for her until his release from prison in 2013. Moreover, the court's decision in denying appellant's request that Figueroa serve as a temporary caregiver is supported by Dr. Ange Puig's opinion that T.E.L.S. "would be at severe risk for emotional harm and trauma [if] placed in the care of an adult with whom she has no relationship and who has no understanding of her current[,] emotional and academic needs. Future disruptions of her living situation and placement would place this child at risk for emotional harm . . . ."

Affirmed.

 

A.E.S. is also the mother of four other children, including J.M., a son born in 2001. A.E.S.'s parental rights have been either voluntary or involuntarily terminated as to all four children.

The order of September 26, 2007, provided that it not only terminated the parental rights of A.L., but also the parental rights of A.E.S. Because a prior order terminating the parental rights of A.E.S. was entered on March 7, 2007, we conclude that the provision contained in the order on appeal terminating the mother's parental rights merely confirmed the prior order.

(continued)

(continued)

2

A-2331-07T4

RECORD IMPOUNDED

January 2, 2009