DCPP VS. K.M. AND R.A. IN THE MATTER OF THE GUARDIANSHIP OF J.M. (FG-09-101-16, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-5108-15T4
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
K.M.,
Defendant,
and
R.A.,
Defendant-Appellant.
__________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF J.M.,
A Minor.
___________________________________
Submitted May 30, 2017 – Decided June 7, 2017
Before Judges Haas and Currier.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-101-16.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mark E. Kleiman, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel;
Alexandra N. Vadala, Deputy Attorney General,
on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Charles
Ouslander, Designated Counsel, on the brief).
PER CURIAM
Defendant R.A.1 appeals from the Family Part's July 7, 2016
judgment of guardianship terminating his parental rights to his
son J.M. ("John"), born in April 2014.2 Defendant contends that
the Division of Child Protection and Permanency ("Division")
failed to prove each prong of N.J.S.A. 30:4C-15.1(a) by clear and
convincing evidence. The Law Guardian supports the termination
on appeal as it did before the trial court.
Based on our review of the record and applicable law, we are
satisfied that the evidence in favor of the guardianship petition
overwhelmingly supports the decision to terminate defendant's
parental rights. Accordingly, we affirm substantially for the
1
We refer to the adult parties by initials, and to the child by
a fictitious name, to protect their privacy.
2
The July 7, 2016 order also terminated the parental rights of
K.M., who is John's birth mother. However, K.M. has not filed a
notice of appeal concerning the order.
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reasons set forth in Judge Anthony D'Elia's comprehensive oral
decision rendered on July 7, 2016.
Because the procedural history and facts are outlined in
detail in Judge D'Elia's thorough decision, a summary will suffice
here. After John was born, the hospital called the Division to
report that K.M. had tested positive for cocaine and marijuana and
that Jack had to be transferred to a specialty hospital because
he had also tested positive for cocaine and was suffering from
respiratory problems. The Division took custody of John when he
was cleared to leave the hospital and placed him in a resource
home.
K.M. identified defendant as John's father. Defendant was
in jail when the Division took custody of the child. Defendant
denied that he was John's father, and the Division asked him to
undergo a paternity test. Defendant refused. However, in March
2015, the Division was able to confirm that R.A. was the child's
father because it had his DNA on file as a result of its previous
involvement with other children defendant had fathered.
Defendant was released from custody in April 2015. After
getting out of jail, defendant refused to stay in contact with the
Division. He was incarcerated again in August 2015, and remained
in jail until December 2015. Up until this latest period of
incarceration, defendant had told the Division that he did not
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want anything to do with John. However, in September 2015, he
indicated he would like to see his son. Therefore, the Division
arranged for defendant to have supervised visits with John at the
jail. Thereafter, the only contact defendant had with John was
during periods when he was incarcerated and the Division brought
John to the jail to see defendant.3
Whenever defendant was released from jail, he simply
disappeared from his child's life. Although the Division attempted
to arrange for substance abuse services for defendant, he failed
to comply. Defendant also refused to participate in a
psychological and bonding evaluation concerning his child. When
defendant was incarcerated again in April 2016, he told a Division
caseworker that "he wanted to play a little bit and celebrate
before doing what I have to do to get my kids." Defendant also
stated that he looked forward to his release because he "wanted
to use drugs and party" before contacting the Division again.
By this time, the Division had placed John with his paternal
uncle, who wished to adopt him. After conducting a bonding
analysis, Dr. Frank Dyer, who was qualified at trial as an expert
in psychology, testified on behalf of the Division that John's
3
All told, defendant visited with John on approximately eight
occasions during the period between the child's birth in April
2014 and the conclusion of the termination trial in July 2016.
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uncle was having a positive impact on the child and, in a few
short months, had already formed an attachment with John "that
could easily blossom into a degree of attachment where the uncle
becomes his central attachment figure." Although defendant
refused to submit to a bonding evaluation, Dr. Dyer opined in
response to a hypothetical question that it would be "impossible
for the child to develop anything approximating an attachment" to
a parent, like defendant, who had only seen the child approximately
eight times over a period of two years.
Defendant did not testify at trial and called no witnesses.
In his oral opinion, Judge D'Elia reviewed the evidence
presented, including the uncontradicted expert testimony, and
thereafter concluded that (1) the Division had proven all four
prongs of the best interests test by clear and convincing evidence,
N.J.S.A. 30:4C-15.1(a); and (2) termination of defendant's
parental rights was in John's best interests. In this appeal, our
review of the trial judge's decision is limited. We defer to his
expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394,
413 (1998), and we are bound by his factual findings so long as
they are supported 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)).
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After reviewing the record, we conclude that Judge D'Elia's
factual findings are fully supported by the record and, in light
of those facts, his legal conclusions are unassailable. We
therefore affirm substantially for the reasons that the judge
expressed in his well-reasoned opinion.
Affirmed.
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