DCPP VS E.C.J., IN THE MATTER OF THE GUARDIANSHIP OFÂ A.J., MINOR(FG-08-0047-15, GLOUCESTER 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NOT FOR PUBLICATION WITHOUT THE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-1620-16T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
E.C.J.,
Defendant-Appellant,
and
T.B.,
Defendant.
_________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF A.J., a minor.
_________________________________
Submitted October 26, 2017 – Decided November 20, 2017
Before Judges Simonelli and Rothstadt.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester
County, Docket No. FG-08-0047-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Steven Edward Miklosey,
Designated Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel; Mary
A. Hurley, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Lisa M. Black,
Designated Counsel, on the brief).
PER CURIAM
Defendant, E.C.J.,1 appeals from the Family Part's December
6, 2016 judgment of guardianship and order terminating his parental
rights to his daughter, A.J. (Abagail).2 The Division of Child
Protection and Permanency (Division) and the Law Guardian contend
that the order should be affirmed. After reviewing the record in
light of the applicable legal standards, we affirm substantially
for the reasons stated by Judge Timothy W. Chell in his thorough
oral decision placed on the record on December 6, 2016.
The pertinent evidence adduced at trial is summarized as
follows. Abagail was born in September 2011. In 2014, she was
diagnosed with Lymphoma and is required to have a high degree of
1
We use initials and pseudonyms to protect the identity of the
family.
2
The child's mother, defendant T.B., surrendered her parental
rights on December 5, 2016, and is not the subject of this appeal.
2 A-1620-16T1
specialized care. She is under treatment directed by the
Children's Hospital of Philadelphia (Hospital).
The Division became involved with Abagail's family in 2013
when issues arose about her mother T.B.'s ability to provide
adequate housing for Abagail and her sibling. Soon after the
Division became involved, T.B. was arrested and found in possession
of counterfeit controlled dangerous substances. At the time of
her arrest, defendant was already incarcerated for unrelated
charges.
During the litigation of the Title 9 and guardianship actions,
it was determined that defendant had a history of drug and alcohol
abuse. The Division offered defendant numerous services to address
his problems, but he was not able to successfully complete the
programs. In addition to addiction issues, defendant was unable
to remain available to Abagail because he was repeatedly
incarcerated. After his release in 2013, defendant was re-
incarcerated just prior to the fact-finding hearing in the Title
9 action. He was released a short time later, but re-incarcerated
in 2015 for violating parole.
The Division investigated the possibility of placing Abagail
in the care of her relatives, but background investigations
revealed that placement with available relatives was not an
alternative. They were either unwilling or not able to care for
3 A-1620-16T1
the child. Instead, the Division placed Abagail with a resource
family who has cared for her since she came to live at their home.
The resource family has continually attended to Abagail's medical
needs and wishes to adopt her.
In 2015, Abagail's paternal grandmother (Debra) expressed an
interest in seeking custody. She had no contact with the Division
or Abagail since the Division became involved. Nevertheless, the
Division began an investigation into placing Abagail with Debra
and by September 2015 its plan was for Debra to adopt Abagail.
As its investigation developed, however, in November 2015,
the Division revised its plan for Abagail to adoption by her
resource family. The Division changed its position because its
background investigations into Debra revealed an open warrant for
her arrest, and reports of abnormal behavior that involved
contacting police about alleged computer hacking by unknown
perpetrators due to her alleged involvement with various
celebrities. A psychological evaluation of Debra raised concerns
about her mental health, however, she did not pose a risk of danger
to Abagail. The Division also received information from Debra's
mother about Debra's ability to care for Abagail. Significantly,
the Hospital also raised concerns about Debra's understanding of
the severity of Abagail's illness and the child's need for
appropriate treatment and the proper administration of her
4 A-1620-16T1
medications. Also, the Division's inspection of Debra's home led
to its determination that it was inappropriate because it posed
hazards and obstructions.
Just prior to the scheduled trial date in the guardianship
action, and evidently in response to the Division's change in its
plan for Abagail, Debra filed a separate action seeking custody.
That matter was heard on the same day that Judge Chell was to
begin the guardianship trial.3 After considering Debra's
testimony, Judge Chell made credibility determinations and
specific findings of fact before denying her application. The
judge concluded that Debra failed to prove there was any change
in circumstances affecting the child's welfare, and that it was
vital to Abagail's best interests that she remain in the Division's
custody and placed with her resource family.
Judge Chell proceeded to hear the guardianship matter. At
that trial, the Division's caseworker and its psychologist
testified for the Division. The Law Guardian called its
investigator and a social worker from the Hospital. Defendant did
not appear for trial, but Debra testified on his behalf.
At the conclusion of the trial, Judge Chell found that the
Division had satisfied all four prongs of the best interests test
3
The matter was filed under Docket FD-08-1013-15.
5 A-1620-16T1
as set forth in N.J.S.A. 30:4C-15.1(a), placing his findings on
the record in a comprehensive oral decision. The judge heavily
weighed the resource family's "ability to identify signs and
symptoms of [Abagail's] serious medical issues[,]" their efforts
to seek "appropriate medical attention[,]" and their commitment
to adoption and the Division's concerns about potential placement
with Debra. Judge Chell observed that the unrefuted expert
testimony established that Abagail demonstrated "strong, positive
and healthy attachments" to both Debra and her resource mother,
but found that the resource mother was better able to provide the
"stability [that] is paramount to [Abagail] in her current state
of medical fragility and recurrence of her cancer." He also found
"no abuse of the Division's investigative or decision making
authority[,]" and determined that it "prove[d] by clear and
convincing evidence that alternatives to termination of parental
rights were considered." This appeal followed.
On appeal, defendant challenges Judge Chell's findings as to
the third and fourth prongs of the best interests test.
Specifically, he argues:
POINT I
THE TRIAL COURT ERRED IN FAILING TO
ADEQUATELY CONSIDER ALTERNATIVES TO
TERMINATION OF PARENTAL RIGHTS.
6 A-1620-16T1
POINT II
THE TRIAL COURT ERRED IN CONCLUDING
THAT THE DIVISION HAD DEMONSTRATED
BY CLEAR AND CONVINCING EVIDENCE
THAT TERMINATION OF E.J.'S PARENTAL
RIGHTS WOULD NOT DO MORE HARM THAN
GOOD.
We conclude from our review that defendant's arguments are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). Judge Chell reviewed the evidence
presented at the trial, made detailed factual findings as to each
prong of N.J.S.A. 30:4C-15.1(a), including the Division's efforts
to investigate and place Abagail with relatives, and concluded the
Division met by clear and convincing evidence all of the legal
requirements for a judgment of guardianship as to defendant. The
judge's opinion tracked the statutory requirements of N.J.S.A.
30:4C-15.1(a), in accordance with N.J. Div. of Youth & Family
Servs. v. F.M., 211 N.J. 420 (2012), N.J. Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261 (2007), In re Guardianship of K.H.O.,
161 N.J. 337 (1999), In re Guardianship of D.M.H., 161 N.J. 365(1999), and N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.
591 (1986), and is more than amply supported by the record. F.M.,
supra, 211 N.J. at 448.
Affirmed.
7 A-1620-16T1