DCPP VS. K.E., J.A., G.A. AND R.A. IN THE MATTER OF J.E.(FN-15-0005-15, OCEAN COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4535-15T4
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
K.E.,1
Defendant-Respondent,
and
J.A.,
Defendant.
_____________________________
IN THE MATTER OF J.E.,
Minor.
______________________________
G.A. and R.A.,
Appellants.
1
Pursuant to Rule 1:38-3(d), we use initials and fictitious names
to protect the confidentiality of the participants in these
proceedings.
Submitted July 12, 2017 – Decided October 5, 2017
Before Judges Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Ocean
County, Docket No. FN-15-0005-15.
Jay Turnbach, attorney for appellants.
Christopher S. Porrino, Attorney General,
attorney for respondent New Jersey Division
of Child Protection and Permanency (Salima E.
Burke, Deputy Attorney General, on the brief).
Sheehy & Sheehy, attorneys for respondent K.E.
(John E. Sheehy, of counsel and on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Lisa M. Black,
Designated Counsel, on the brief).
PER CURIAM
In this Title 9 matter, appellants G.A. and R.A., are the
maternal grandparents of J.E. (John), born in July 2010. They
appeal from the June 8, 2016 Family Part order, which denied their
motion to intervene. For the following reasons, we affirm.
John's biological mother, J.A. (Jane) is deceased. Prior to
Jane's death, in June 2014, plaintiff New Jersey Division of Child
Protection and Permanency (Division) substantiated allegations of
abuse and neglect against her. The Division removed John from
Jane's care, obtained care, supervision, and custody of him, and
placed him with appellants, with whom the child had lived since
birth. Following Jane's death, John continued living with
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appellants while also having visitation with his biological
father, dispositional defendant K.E. (Ken), who had filed a motion
to obtain physical and legal custody of the child.
Appellants did not file a motion to intervene until April
2016, after the court approved the Division's plan to return John
to Ken. Appellants argued the court should permit them to
intervene and grant them custody because they were John's
psychological parents. In the alternative, appellants sought
visitation pursuant to the Grandparents and Sibling Visitation
Rights Statute, N.J.S.A. 9:2-7.1.
In a June 8, 2016 oral opinion, Judge Madelin F. Einbinder
denied the motion as untimely, finding it had been filed almost
two years after the Division removed John from Jane's care.
Addressing the merits, the judge stated that to establish
psychological parentage for custody purposes, appellants had to
prove the four elements set forth in V.C. v. M.J.B.:
(1) that the biological or adoptive parent
consented to, and fostered, the petitioner's
formation and establishment of a parent-like
relationship with the child; (2) that the
petitioner and the child lived together in the
same household; (3) that the petitioner
assumed the obligations of parenthood by
taking significant responsibility for the
child's care, education and development,
including contributing towards the child's
support, without expectation of financial
compensation [a petitioner's contribution to
a child's support need not be monetary]; and
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(4) that the petitioner has been in a parental
role for a length of time sufficient to have
established with the child a bonded, dependent
relationship parental in nature.
[163 N.J. 200, 223 (2000) (citation omitted).]
The judge found appellants failed to establish the first
element, as Ken never ceded parental authority or his parental
rights to them, and in fact, had been fighting to obtain custody
of John. The judge also determined that although appellants had
been in John's life since his birth, they did not stand in Ken's
position as biological father or share his constitutional rights
to custody. The judge also found that even if appellants had
established all four elements of the V.C. psychological parent
test, they must still show that granting them custody would be in
John's best interest, giving weight to the factors set forth in
N.J.S.A. 9:2-4. The judge concluded that appellants did not meet
the standard to award them legal custody, as they did not establish
psychological parentage or overcome Ken's constitutional right to
custody.
Judge Einbinder found that although appellants had an
interest in the litigation, their interest was not compromised,
but was adequately represented to and by the Division, and they
could seek custody or visitation under the FD docket. The judge
also found that appellants' request for visitation was premature.
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The judge noted that John was still residing with appellants and
would remain in their physical custody until returned to Ken, and
there was no indication appellants would have no contact with the
child if Ken regained custody.
Judge Einbinder entered an order on June 8, 2016 order,
denying appellants' motion to intervene without prejudice, and
requiring the Division to transfer legal and physical custody of
John to Ken on June 20, 2016. After the Division returned John
to Ken, the judge entered an order on August 23, 2016, terminating
the litigation. This appeal followed.
On appeal, appellants contend they met all requirements for
intervention as of right. They argue they have an interest in the
ligation because they are John's psychological parents, and their
interests are being compromised because once the custody issue is
decided, they are precluded from being recognized in their role
as psychological parents. They also argue that their rights are
not protected because the Division, Law Guardian, and John's
attorney actively undermined their interests in pursuing custody.
Lastly, they argue their application was timely because they filed
it when they still had physical custody of John. Appellants do
not address Ken's rights as the biological parent or his
constitutional rights. They also do not address their right to
seek visitation under the FD docket.
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Intervention as of right is appropriate where an applicant
"claims an interest relating to . . . the subject of the action
and is so situated that disposition of the action may as a
practical matter impair or impede the ability to protect that
interest, unless the applicant's interest is adequately
represented by existing parties." R. 4:33-1. Intervention as of
right requires the movant to show: (1) an interest in the subject
matter of the litigation; (2) an inability to protect that interest
without intervention: (3) lack of adequate representation of that
interest; and (4) timeliness of the application. N.J. Div. of
Youth & Family Servs. v. D.P., 422 N.J. Super. 583, 590 (App. Div.
2011).
"The grant or denial of a motion to intervene . . . lies
within the sound discretion of the trial court and should not be
disturbed on appeal absent a clear showing that the trial court's
discretion has been misapplied." ACLU v. County of Hudson, 352
N.J. Super. 44, 65 (App. Div.), certif. denied, 174 N.J. 190 (2002)
(citations omitted). The court also has the discretion to
determine the timeliness of the intervention application, and may
deny the application if deemed untimely. See generally State v.
Lanza, 39 N.J. 595 (1963). "[A]n abuse of discretion only arises
on demonstration of 'manifest error or injustice[,]'" Hisenaj v.
Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J.
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554, 572 (2005)), and occurs when the trial judge's "decision is
'made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis.'" Milne
v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting
Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
We have considered appellants' arguments in light of the
record and applicable legal principles and conclude they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the
reasons expressed by Judge Einbinder in her cogent oral opinion.
We discern no abuse of discretion in the denial of appellants'
motion to intervene as untimely and on the merits. We agree that
appellants did not satisfy all four elements of the psychological
parentage test under V.C. to obtain custody of John, as Ken never
ceded the function of psychological parent to them. Certainly
appellants have been in John's life since his birth, but they do
not stand in Ken's position as the child's biological parent and
do not share his constitutional rights. Ken was not found to have
abandoned, abused, or neglected John, and was not deemed an unfit
parent. Appellants may file an action under the FD docket for
grandparent visitation. We express no view as to the merits of
such an application.
Affirmed.
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