DCPP VS. R.R. IN THE MATTER OF THE GUARDIANSHIP OF K.F.R.(FG-05-0024-15, CAPE MAY 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NOT FOR PUBLICATION WITHOUT THE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-3678-15T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
R.R.,
Defendant-Appellant.
_________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF K.F.R.,
Minor.
_________________________________
Submitted September 14, 2017 – Decided October 12, 2017
Before Judges Simonelli and Rothstadt.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Cape May
County, Docket No. FG-05-0024-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Theodore J. Baker, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa D. Schaffer,
Assistant Attorney General, of counsel;
Jennifer Russo-Belles, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Margot E.K.
Hirsch, Designated Counsel, on the brief).
PER CURIAM
Defendant R.R.,1 the biological father of K.F.R. (Ken), born
in 2009, appeals from the April 18, 2016 Family Part judgment for
guardianship, which terminated his parental rights to the child.
The judgment also terminated the parental rights of the child's
biological mother, L.D. (Linda), who was deported to the Republic
of Palau (Palau) in 2015, and does not appeal.2 On appeal,
defendant contends the trial judge erred in finding respondent New
Jersey Division of Child Protection and Permanency (Division)
proved prong three of N.J.S.A. 30:4C-15.1(a) by clear and
convincing evidence. Defendant also argues the judgment should
be reversed because Linda was not represented by counsel in the
guardianship proceeding. For the following reasons, we affirm.
1
Pursuant to Rule 1:38-3(d), we use initials and fictitious names
to protect the confidentiality of the participants in these
proceedings.
2
The judgment of guardianship also terminated Linda's parental
rights to her son and Ken's half-sibling, D.P. (Dan), as well as
the parental rights of Dan's biological father, P.R. Dan and D.P.
are not involved in this appeal.
2 A-3678-15T2
We will not recite in detail the history of the Division's
involvement with defendant and Linda. Instead, we incorporate by
reference the factual findings set forth in Judge John R. Rauh's
April 18, 2016 oral opinion. However, we add the following
comments.
Defendant has an extensive criminal history. Following his
arrest on drug and weapons charges in April 2014, the Division
effected a Dodd3 removal of Ken and Dan, filed an amended complaint
for custody, and placed the children with a non-relative caretaker.
Thereafter, the Division evaluated numerous relatives that
defendant and Linda identified as placement options, but none were
willing or able to care for Ken.
In June 2014, defendant was convicted of first-degree robbery
and third-degree bail jumping and sentenced to a fifteen-year term
of imprisonment with an eighty-five percent period of parole
ineligibility. That same month, defendant identified a friend,
S.R. (Sally),4 as a placement option. Sally stated she would care
3
A "Dodd removal" refers to the emergency removal of a child
children from the home without a court order, pursuant to the Dodd
Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82.
The Act was authored by former Senate President Frank J. "Pat"
Dodd in 1974. N.J. Div. of Youth & Family Servs. v. N.S., 412
N.J. Super. 593, 609 n.2 (App. Div. 2010).
4
Defendant uses the initials B.R. in his merits brief; however,
the record refers to S.R., and defendant's arguments support a
finding that he meant S.R.
3 A-3678-15T2
for Ken and Dan, but the Division ruled her out as a caretaker
because she had no prior relationship with the children.
In November 2015, the Division again contacted Sally, who
stated she was only willing to care for Ken. Sally also stated,
and defendant does not dispute, that she and defendant had a
falling out and he told her not to apply to become a caretaker for
the children. By that time, Ken had been with his resource family
for eighteen months, and expressed his desire to remain with them.
The Division's undisputed expert evidence present at the
guardianship trial confirmed that Ken had a strong attachment to
his resource parents, who want to adopt him, and would suffer
severe and enduring harm if removed from them.
Judge Rauh determined the Division satisfied all four prongs
of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.
Regarding prong three, the judge found the Division made reasonable
efforts to provide services to defendant. The judge considered
alternatives to termination and found none, and found the Division
assessed and properly ruled out any alternatives. This appeal
followed.
Our Supreme Court has established the standard of review in
parental termination cases:
Our task as an appellate court is to determine
whether the decision of the family court in
terminating parental rights is supported by
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substantial and credible evidence on the
record. We accord deference to factfindings
of the family court because it has the
superior ability to gauge the credibility of
the witnesses who testify before it and
because it possesses special expertise in
matters related to the family. . . . We will
not overturn a family court's factfindings
unless they are so wide of the mark that our
intervention is necessary to correct an
injustice. It is not our place to second-
guess or substitute our judgment for that of
the family court, provided that the record
contains substantial and credible evidence to
support the decision to terminate parental
rights.
[N.J. Div. of Youth & Family Servs. v. F.M.,
211 N.J. 420, 448-49 (2012) (citations
omitted).]
A court should terminate parental rights when the Division
shows by clear and convincing evidence that:
(1) The child's safety, health, or
development has 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.
Such harm may include evidence that separating
the child from his resource family parents
would cause serious and enduring emotional or
psychological harm to the child;
(3) The [D]ivision 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
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(4) Termination of parental rights will not
do more harm than good.
[N.J.S.A. 30:4C-15.1(a).]
As part of the third prong inquiry, the court must consider
whether the Division acted reasonably in assessing alternative
placement options. N.J. Div. of Youth & Family Servs. v. A.G.,
344 N.J. Super. 418, 434-35 (App. Div. 2001), certif. denied, 171
N.J. 44 (2002). "The reasonableness of the Division's efforts
depends on the facts in each case." Id. at 435. Under the fourth
prong, "[t]he question ultimately is not whether a biological
mother or father is a worthy parent, but whether a child's interest
will best be served by completely terminating the child's
relationship with that parent." N.J. Div. of Youth & Family Servs.
v. E.P., 196 N.J. 88, 108 (2008).
Defendant does not address prongs one, two, four, or the part
of prong three requiring the Division to make reasonable efforts
to provide services to him. The issues, therefore, are deemed
waived. N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J.
Super. 501, 505-06 n.2 (App. Div.), certif. denied, 222 N.J. 17
(2015); Pressler & Verniero, Current N.J. Court Rules, comment 5
on R. 2:6-2 (2018).
Defendant only challenges the part of prong three of N.J.S.A.
30:4C-15.1(a), which requires the court to consider alternatives
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to placement. He argues the Division violated N.J.S.A. 30:4C-12.1
by not assessing Sally and not giving her the required notices,
including her right to seek administrative review of the rule out
decision. Defendant also argues the Division did not assess the
maternal grandmother, who resides in Palau, and Dan's paternal
uncle, who resides in Illinois. We disagree with defendant's
arguments.
The Division has a statutory obligation to "search for
relatives who may be willing and able to provide the care and
support required by the child." N.J.S.A. 30:4C-12.1(a); N.J. Div.
of Child Prot. and Permanency v. K.N., 435 N.J. Super. 16, 29
(App. Div. 2014), aff'd as modified, 223 N.J. 530 (2015). There
is, however, no presumption in favor of placement with relatives
or friends. N.J. Div. of Youth & Family Servs. v. K.L.W., 419
N.J. Super. 568, 578 (App. Div. 2011). The presumption of
custodial placement only exists between a child and his biological
parents, not a proposed placement with family or a friend. N.J.
Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 82
(App. Div. 2013), certif. denied, 217 N.J. 587 (2014).
"Delay of permanency or reversal of termination based on the
Division's noncompliance with its statutory obligations is
warranted only when it is in the best interests of the child."
Ibid. (citations omitted). N.J.S.A. 30:4C-12.1(c) and N.J.A.C.
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10:120A-3.1 permit the Division to rule out alternative placement
options based upon considerations of a child's best interests,
regardless of the person's willingness or ability to care for the
child. Id. at 75 (upholding the Division's rule-out authority
based on a person's unwillingness or inability to care for the
child, as well the child's interest). N.J.A.C. 10:120A-3.1(b)
prohibits a person who the Division has ruled out on best-interests
grounds from pursuing an administrative appeal of that agency
determination. Id. at 83-84.
Here, the Division properly ruled out Sally based on Ken's
best interests. Sally was a stranger to Ken, and the record does
not reveal she expressed an interest in adopting him. Thus,
placing Ken with her would have been akin to kinship legal
guardianship, which is not appropriate where, such as here,
adoption is feasible and likely. See N.J. Div. of Youth & Family
Servs. v. P.P., 180 N.J. 494, 509 (2004). More importantly, the
undisputed expert evidence confirmed that Ken had a strong
attachment to his resource parents and would suffer severe and
enduring harm if removed from them.
The Division attempted to assess the maternal grandmother.
The Division submitted an international social services
application for placement of the children with her in Palau and
attempted to facilitate the process between social workers in New
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Jersey. However, the Division had no authority over Palau's social
services agencies to expedite the process. Further, the maternal
grandmother would not have been an appropriate caretaker because
Linda was going to live with her after being deported. Ken could
not be placed in the same home as Linda, who was found to have
abused and neglected him and endangered his child's safety, health,
or development. Lastly, Dan's paternal uncle in Illinois only
presented himself as a caretaker for D.P., not Ken.
We are satisfied the record amply supports the judge's
findings that the Division assessed and properly ruled out all
alternatives. The relatives the Division assessed were either
unwilling or unable to care for Ken, and his placement with Sally
would have been against his best interests.
Defendant next argues that the judgment of guardianship
should be reversed because Linda was not represented during the
guardianship proceedings. We have considered this argument in
light of the record and applicable legal principles and conclude
it is without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). Defendant lacks standing to raise
this argument. Nevertheless, the fact that Linda did not have
counsel was of no consequence to the termination of defendant's
parental rights.
Affirmed.
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