IN THE MATTER OF THE ADOPTION OF A CHILD BY L.W. AND L.W

RECORD IMPOUNDED
                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-5937-08T4


IN THE MATTER OF THE ADOPTION
OF A CHILD BY L.W. AND L.W.
___________________________________

         Argued April 27, 2010 ­ Decided May 13, 2010

         Before    Judges     Skillman,       Gilroy   and
         Simonelli.

         On appeal from the Superior Court of New
         Jersey, Chancery Division, Family Part,
         Ocean County, Docket No. FA-15-042-08I.

         Peter J. Van Dyke argued the cause for
         appellant J.S. (The Law Office of Kelaher,
         Garvey,   Ballou,   Van  Dyke &  Rogalski,
         attorneys; Mr. Van Dyke and Kathleen C.
         Moriarty, on the brief).

         Marc   R.   Brown  argued   the   cause  for
         respondents L.W. and L.W. (Wolkstein, Von
         Ellen & Brown, L.L.C., attorneys; Mr. Brown
         and Rebecka J. Whitmarsh, on the brief).

PER CURIAM

                                      case,   defendant   J.S.,   the
    In   this   private   adoption

biological father of A.W., born in December 2006, appeals from

the June 25, 2009 final judgment of the Family Part terminating

his parental rights to the child and finalizing the child's

adoption by L.W. and L.W. (the Watsons).1                         The judgment also

terminated the parental rights of the child's biological mother,

M.W., who withdrew her appeal.             We affirm.

       We will not recite in detail the history of this matter.

Instead, we incorporate by reference the factual findings and

legal    conclusions      contained       in    Judge       Ronald     Hoffman's       oral

opinion    rendered    June   24,       2009.        We   add   only     the    following

comments.

       We are satisfied that J.S. "substantially failed to perform

the regular and expected parental functions of care and support

of    [A.W.]   although    able    to    do     so,"      and   that    termination      of

J.S.'s parental rights and adoption by the Watsons is in the

child's best interest.            N.J.S.A. 9:3-46a(1).                 Prior to A.W.'s

birth,    J.S.   "ordered"    M.W.      not     to    disclose     that    he    was    the

child's father because he did not want another child and wanted

nothing to do with this child.2                J.S. also told M.W. that he did

not care whether she aborted the child or placed the child for

adoption, and he knew pre- and post-birth that A.W. would be

1
     This name is fictitious.
2
   J.S. and M.W., who are not married, have two other children.
At the time M.W. disclosed her pregnancy to J.S., the Division
of Youth and Family Services was investigating abuse and neglect
allegations regarding these children, J.S. was in a methadone
treatment program, M.W. was involved with drugs, neither parent
had custody of the children, they only had supervised contact
with the children, and they had no independent housing.



                                                                                 A-5937-08T4
                                           2

placed for adoption with the Watsons.                Although we acknowledge

there was a delay in the court's order for supervised visitation

with A.W., the delay was attributable to J.S.'s ordering M.W.

not to tell anyone he was the child's father.                       Also, at a

hearing to establish paternity, and again at a custody hearing,

the court instructed J.S. to contact the Watsons and arrange for

visitation independent of any court order.                  On both occasions,

J.S. failed to follow the court's instructions.                Moreover, after

commencement of court-ordered visitation, J.S. did nothing to

maintain a relationship with A.W. such that the child would

perceive J.S. as his father.                 J.S. never inquired about the

child's    well-being     or   provided      financial   support    despite    his

ability to do so.          He also refused to communicate with the

Watsons.       Except for J.S.'s sheer speculation, the record is

devoid    of   evidence    that    the     Watsons   would   have    refused    to

communicate with him or that they did anything to prevent him

from performing the regular and expected parental functions of

care and support for A.W.

    After an eight day bench trial, Judge Hoffman painstakingly

reviewed the evidence, including undisputed expert psychological

and bonding evidence, and concluded that it showed clearly and

convincingly     that     J.S.    failed     to   perform    the    regular    and

expected parental functions of care and support of A.W. although




                                                                        A-5937-08T4
                                         3

able to do so, and that termination of J.S.'s parental rights

and   A.W.'s    adoption    by   the     Watsons    was    in   the   child's   best

interest.      The judge also rejected, as do we, J.S.'s implication

that the Watsons' violation of N.J.S.A. 9:3-44 and N.J.S.A. 9:3-

                                         See In re Adoption of a Child by
55 is fatal to their case.

D.M.H., 
135 N.J. 473, 490 (1994); In re Adoption of a Child by

N.P. and F.P., 
165 N.J. Super. 591, 597 (Law Div. 1979).

      The judge's opinion tracks the statutory requirements of

N.J.S.A. 9:3-46a(1), and accords with In re Adoption of Children

by    G.P.B.,    Jr.,   161      N.J.    396     (1999).        His   factual    and

credibility findings are amply supported by the record, and we

discern no reason to disturb them.                 In re Adoption of Child by

J.D.S.,   
353 N.J.   Super.     378,    394     (App.   Div.   2002),    certif.

denied, 
175 N.J. 432 (2003).              We affirm substantially for the

reasons     expressed      in    Judge    Hoffman's        comprehensive,       well-

reasoned opinion rendered June 24, 2009.

      Affirmed.




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