NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. W.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2334-05T42334-05T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

W.S.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF

D.E.H., K.J.J., A.L.H.,

T.A.H., J.D.J., A.D.H.,

Minors.

_______________________________________

 

Submitted June 13, 2006 - Decided July 13, 2006

Before Judges Conley and Cuff.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FG-13-59-05.

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

Zulima V. Farber, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Ann Marie Seaton, Senior Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor A.D.H. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

W.S., biological father of A.D.H., appeals the termination of his parental rights, pursuant to N.J.S.A. 30:4C-15.1. We affirm.

Similar to several of her half-siblings, who share the same mother but different fathers, and who also have been freed from the biological ties of their natural parents, four-year-old A.D.H. is a special needs child. Throughout most of the child's life, W.S has been incarcerated and has had minimal contact with her. Presently incarcerated on a twenty-year NERA sentence for armed robbery and a four-year sentence on a separate possession of heroin charge, the earliest W.S. could be released is 2017. A.D.H. will then be fifteen years old.

The expert testimony regarding W.S.'s parental abilities was produced through the testimony of the DYFS expert, Dr. Karen Wells. It was her opinion that W.S. exhibited a pattern of anti-social behavior and displayed clinical indications such that even if he were not incarcerated he would not be able to provide minimal parental care for A.D.H. The doctor found W.S. to be impetuous and imprudent, and unable to accept responsibility, with minimal regard to consequences. She did not think W.S. would be able to cope with A.D.H.'s special needs, which include speech, language and behavioral deficits and, further, opined that were W.S. a custodial parent, A.D.H. would be at risk of physical abuse. Stressing that A.D.H. has now been in an out-of-home placement for more than two years, the doctor concluded that it was in her best interests to have the opportunity for a permanent home and family in the near future, as opposed to the dim forecast of a life with W.S. years from now.

The trial judge agreed. He concluded that the long-term inability of W.S. to provide a nurturing custodial environment has harmed A.D.H. and that the situation will not change for many years. The judge observed:

[W.S.], the biological father of [A.D.H.], has not had a relationship with the child, as he has been incarcerated for much of her life. In addition, [he] is currently serving a twenty year sentence for armed robbery, and while he indicated that the case is on appeal and he is hoping to receive a reduced sentence, Dr. Wells was of the opinion that [he] should not be considered as an option for a permanency placement for [A.D.H.].

. . . .

[W.S.] is unable to eliminate the harm caused to his child, [A.D.H.]. [A.D.H.] is three years old and has had minimal contacts with her father since birth. Additionally, [W.S.] is unable to cultivate a relationship with [A.D.H.] at this time due to his incarceration both for armed robbery and heroin possession. [W.S.] is clearly unable to eliminate the harm to his child as he cannot provide a safe and stable environment for [A.D.H.].

Referring to all of the children, the judge noted:

Further delay in the children's permanent placement will certainly add to the harm they have already suffered. The children were placed in foster care in mid-2003, after being removed from the custody of their maternal aunt as a result of a prior Division history with that aunt, and have been in foster care since that time. Several of the children have been in multiple placements. However, the children are currently doing very well in foster care, and have even made some improvements in their levels of functioning. . . .

As to A.D.H., the judge observed:

[A.D.H.] has exhibited some behavioral difficulties, but has been properly cared for in her foster home placement of over one year. . . . While [W.S. has] expressed [his] future plans to Dr. Wells, [his] plans are unrealistic and will not provide [A.D.H.] with the necessary permanency within a reasonable period of time. It cannot therefore be determined when, if ever, [he] would be able to care for [A.D.H.] in a safe, stable environmental. The [life] of [A.D.H.] should not be put on hold due to [her] parents' inability to address their issues.

As to the availability of W.S.'s relatives to offer an extended family home, the judge noted:

[W.S.'s] relatives, [E.S. and B.S.], were contacted, but were unable to be considered as caretakers for [A.D.H.] at the time. [E.S.] had a prior history with the Division, and [B.S.] indicated she was unable to care for [A.D.H.] due to her work schedule.

He concluded:

The Division has made diligent efforts in attempting to provide services to [the natural mother] to help her correct the circumstances leading to the placement of her children in foster care. Furthermore, the Division attempted to contact numerous relatives for placement, but were unable to obtain a suitable placement. [W.S. has] expressed interest in caring for [A.D.H.], but [is] not [a] suitable caretaker[] at this time.

Finally, the judge concluded as to all of the children, including A.D.H.:

The termination of the parental rights . . . will not do more harm than good to the children. It is in the children's best interests to remain in foster care at this time, with the possibility of either a relative placement or adoption by an outside family in the future. All the children have been in their respective foster care placements for an extended period of time, and all of the children continue to thrive. . . .

W.S. contends on appeal:

POINT I: SUBSTANTIAL CREDIBLE EVIDENCE DID NOT EXIST SUPPORTING THE COURT'S FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

A. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILD WERE AND WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

B. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT A FINDING THAT THE APPELLANT WAS UNWILLING OR WAS UNABLE TO ELIMINATE THE HARM FACING THE CHILD.

C. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO W.S.

D. THE COURT'S FINDINGS THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

We have considered these contentions in light of the record, applicable law and the trial judge's findings of facts and conclusions of law. We are convinced they are of insufficient merit to warrant further opinion. R. 2:11-3(e)(1)(A),(E).

Affirmed for the reasons set forth by Judge Norman J. Peer in his October 31, 2005, written decision.

 

(continued)

(continued)

6

A-2334-05T4

RECORD IMPOUNDED

July 13, 2006