DCPP VS. A.P, IN THE MATTER OF THE GUARDIANSHIP OF A.P. (FG-02-0041-19, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-0664-19T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
A.P.,
Defendant-Appellant.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF A.P.,
a minor.
_________________________
Submitted October 1, 2020 – Decided October 30, 2020
Before Judges Fuentes, Whipple, and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FG-02-0041-19.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Bruce P. Lee, Designated Counsel, on the
briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Julie B. Colonna, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Rachel E. Seidman,
Assistant Deputy Public Defender, of counsel and on
the brief).
PER CURIAM
Defendant, A.P. (Anthony), 1 appeals from a September 26, 2019,
judgment in favor of the New Jersey Division of Child Protection and
Permanency (Division) terminating his parental rights to his son, A.P. (Avery).
Having carefully reviewed the record, we affirm primarily for the reasons
expressed in the thorough written opinion of Judge Michael Antoniewicz issued
with the judgment.
Defendant raises the following issues on appeal:
I. THE TRIAL COURT ERRED FINDING THAT
[THE DIVISION] CONDUCTED A FAIR
1
For the sake of anonymity and because the initials are the same, we utilize the
pseudonyms from defendant's brief to protect the parties and the child. See R.
1:38-3(d)(13).
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2
INVESTIGATION RULING OUT S.J. AS A
RELATIVE PLACEMENT.
II. [THE DIVISION]'S DUAL USE OF DR. DYER TO
TESTIFY AGAINST ANTHONY AND TO
CONDUCT AN EVALUATION OF S.J. AS PART OF
A FAIR INVESTIGATION INTO RELATIVE
PLACEMENT VIOLATED DUE PROCESS OF LAW.
(NOT RAISED BELOW).
III. THE [TRIAL] COURT IMPERMISSIBLY
ALLOWED ADMISSION OF EVIDENCE
RELATING TO [ANTHONY]'S JUVENILE
RECORD, WHICH VIOLATES N.J.S.A. 2A:4A-60.
Anthony is the biological father of Avery, born in November 2015.
Avery's mother, A.W. (Allison), surrendered her parental rights to the resource
family in 2018 and is not a party to this appeal. The Division first became
involved with this family when Avery was born due to Allison's prior reports of
domestic violence. Our review of the record reveals Anthony has a lengthy
history of instability due to criminality, substance abuse, and psychiatric
problems. Avery was initially removed from the care of his parents by the
Division when they were incarcerated.
At the time of their arrests, the parents left Avery with Anthony's mother.
When the Division learned that the paternal grandmother was ineligible for
Avery's placement, the Division conducted an emergency removal pursuant to
N.J.S.A. 9:6-8.29. At three months old, Avery was placed in a non-relative
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resource home, where he remains. The Division later explored placing Avery
with numerous members of Anthony's family but ruled each one out. In June
2017, Frank Dyer, PhD, conducted a psychological evaluation of Anthony at the
Bergen County Jail. Due to restrictions at the jail, Dr. Dyer could not conduct
a bonding evaluation at that time. After reviewing Anthony's criminal history,
Dr. Dyer opined that Anthony minimized his problematic history, and that his
substance abuse was significant and would impact his ability to appropriately
care for Avery. Psychological testing revealed that Anthony suffered from
anxiety, post-traumatic stress disorder, and depression. His responses were
indicative of bipolar disorder and antisocial personality disorder.
Dr. Dyer conducted a bonding evaluation with Avery and his resource
parents, with whom he had been placed since he was three months old. Dr. Dyer
concluded that Avery was securely bonded to his resource parents. Dr. Dyer
opined that because Avery only saw Anthony on a weekly basis, Avery would
not suffer any serious or long-term harm if contact with Anthony ceased. Dr.
Dyer ultimately stated that Avery "should not be allowed to linger in the
uncertain status of foster care while further attempts are made to rehabilitate the
birth parents, in light of their multiple serious problems, lack of progress to date,
and poor prognosis."
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In November 2017, Anthony requested the Division consider S.J., his
adult first cousin, as a relative placement. The Division withdrew its complaint
in order to explore additional relative placements for Avery but found no relative
placements willing or able to take responsibility for the care and custody of the
child. Based on our review of the record, we reject Anthony's argument that
the Division failed to conduct a fair investigation. Anthony was released from
prison in December 2018. He stopped communicating with the Division case
worker and had not visited his child beyond January 2019. He did not attend
the trial.
On September 26, 2019, Judge Antoniewicz issued a written opinion
terminating Anthony's parental rights to Avery and entered a judgment of
guardianship. Judge Antoniewicz gave thoughtful attention to the importance
of permanency and stability from the perspective of Avery's needs, and found
the Division had established by clear and convincing evidence all four prongs
of the best-interests test, N.J.S.A. 30:4C-15.1(a), which permits termination of
parental rights. In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).
In this appeal, our review of the judge's decision is limited. We defer to
his expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 411-13
(1998), and we are bound by his factual findings so long as they are supported
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by sufficient credible evidence, N.J. Div. of Youth & Family Servs. v. M.M.,
189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172,
188 (App. Div. 1993)).
We add the following comments to address Anthony's second and third
arguments. Anthony claims that the court improperly admitted evidence relating
to his juvenile records. His counsel objected on the basis of relevance. Even if
we were to agree, we consider this harmless error. Furthermore, Anthony did
not challenge the second prong of the best-interest test.
Anthony also argues for the first time here that it was erroneous for the
Division to use Dr. Dyer's opinion to support its determination to rule out S.J.
as a relative placement. Anthony asserts that Dr. Dyer's assessments should not
be used in a dual role. Issues that were not raised at trial "will ordinarily not be
considered on appeal unless they are jurisdictional in nature or substantially
implicate the public interest." Div. of Youth & Family Servs. v. M.C. III, 201
N.J. 328, 339 (2010).
We conclude the factual findings of Judge Antoniewicz are fully
supported by the record, and the legal conclusions drawn therefrom are
unassailable.
Affirmed.
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