NEW JERSEY DIVISION OF YOUTH and FAMILY SERVICES v. F.R IN THE MATTER OF J.R A Minor

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0994-08T40994-08T4

NEW JERSEY DIVISION OF

YOUTH and FAMILY SERVICES,

Plaintiff-Respondent,

v.

F.R.,

Defendant-Appellant.

_______________________________________

IN THE MATTER OF J.R.,

A Minor.

_______________________________________

 

Submitted September 14, 2009 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN 09-149-09.

Yvonne Smith Segars, Public Defender, attorney for appellant (Grace Eisenberg, Designated Counsel, on the brief).

Anne Milgram, Attorney General of New Jersey, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ariela Herzog, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor J.R. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant F.R. appeals from an order entered by the Family Part on September 5, 2008, dismissing this action for lack of jurisdiction and returning custody of J.R. to his maternal grandmother, G.R. For the reasons that follow, we affirm.

This appeal arises from the following facts. J.R. was born in New Jersey on August 6, 1999. S.R. is the child's biological mother. J.R.'s birth certificate apparently does not identify a biological father; however, defendant is J.R.'s putative biological father. When J.R. was eight months old, S.R. sent him to live in the Dominican Republic with G.R.

It appears that in December 2005, S.R. and G.R. entered into a guardianship agreement which placed J.R. in G.R.'s care; permitted J.R. to enter and leave the Dominican Republic with G.R.; and allowed S.R. to visit the child when she chooses. In March 2008, S.R. and G.R. requested that the juvenile court of the Santiago Judicial District in the Dominican Republic officially confirm the guardianship agreement. It is undisputed that defendant was not provided with notice of that proceeding. On April 14, 2008, the Dominican Republic court granted the application.

In July 2008, G.R. traveled to the United States with J.R., and the child stayed with his mother, who was residing at the time in Jersey City. Defendant was living in North Carolina and he traveled to New Jersey to visit with J.R. On August 10, 2008, S.R. died as a result of gunshot wounds inflicted during an argument with her paramour. The Jersey City police took J.R. to the Jersey City Medical Center for his safety.

The police referred the matter to the Division of Youth and Family Services (the "Division"), which executed an emergency removal of the child. The Division contacted certain family members but was unable to approve them for emergency placement. J.R. therefore was placed in a Division-approved foster home.

J.R.'s maternal great-grandmother contacted the Division. She said that G.R. had custody of J.R. and inquired what was necessary to return the child to G.R.'s custody. The Division advised that G.R. would have to provide documentation establishing that she had custody of the child. One of the Division's investigators obtained contact information about defendant, and on August 11, 2008, the investigator spoke with him. Defendant informed the investigator that he and his wife were interested in taking custody of J.R.

On August 12, 2008, the Division filed a verified complaint for custody with the Family Part and sought the issuance of an order authorizing J.R.'s emergency placement. The Division informed the court that its plan was to return the child to defendant but it first had to undertake a background check of him. The Division also informed the court that J.R. had been moved to the home of his maternal aunt.

The court entered an order dated August 12, 2008, which stated that J.R.'s emergency removal was required due to imminent danger to his life, safety or health. In addition, the order required defendant to show cause why J.R. should not remain in the Division's custody.

The parties returned to court on September 3, 2008, after the Division learned that a court in the Dominican Republic had previously granted G.R. custody of J.R. The Division informed the court that it was waiting for official confirmation from the Dominican Republic regarding the custody determination.

The Division refused to agree to the return of the child to G.R. until the court determined whether the Family Part had jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, N.J.S.A. 2A:34-53 to -95 (the "UCCJEA") to consider defendant's application for custody. The court entered an order providing that J.R. would remain in the Division's custody and scheduled the matter for a hearing on September 5, 2008.

On that date, the court stated on the record that it had contacted the judge in the Dominican Republic and had been informed that custody was granted to G.R. after a court hearing. The Dominican Republic judge acknowledged that defendant did not have notice of the proceeding because defendant was not identified as J.R.'s father on J.R.'s birth certificate and defendant's name did not appear on any official records.

The court rendered a written opinion in which it found that, while it had temporary emergency jurisdiction under the UCCJEA, it did not have authority to render a custody determination regarding J.R. because the Dominican Republic had jurisdiction in the matter. The court entered an order dated September 5, 2008, dismissing the Division's complaint and returning the child to G.R.'s custody. The court denied defendant's motion for a stay pending appeal. Defendant filed a notice of appeal and sought an emergent stay of the trial court's order. Defendant's application for emergent relief was denied.

On appeal, defendant argues that the trial court erred by finding that it did not have jurisdiction under the UCCJEA to render a custody determination regarding J.R. Defendant further contends that the order of the Dominican Republic court is void because he was not provided with notice of the proceedings and an opportunity to be heard. Defendant also argues that the Family Part should have exercised its temporary emergency jurisdiction under the UCCJEA and awarded him custody of the child.

We have carefully considered the record in light of defendant's contentions and the applicable law. We are convinced that defendant's arguments are without merit. We accordingly affirm the trial court's order substantially for the reasons stated by Judge Bernadette DeCastro in her written opinion dated September 5, 2008. R. 2:11-3(e)(1)(A) and (E). We add the following comments.

Here, the New Jersey court exercised temporary emergency jurisdiction under the UCCJEA, which allows such jurisdiction to be exercised when a "child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse." N.J.S.A. 2A:34-68(a). The exercise of temporary emergency jurisdiction was warranted in this matter in view of the fact that S.R. died while J.R. was visiting her in Jersey City. As the court found, the exercise of temporary jurisdiction was necessary to protect the child's life, safety or health.

The court did not, however, have jurisdiction under the UCCJEA to render a decision on defendant's application for custody. As we stated previously, the court was informed that a court in the Dominican Republic had previously awarded custody of J.R. to G.R. The court thereupon contacted the judge in the Dominican Republic, as required by N.J.S.A. 2A:34-68(d). The court properly found that the determination of the Dominican Republic court was entitled to be enforced here and entered an order returning custody of the child to G.R.

Defendant argues that the court erred in doing so because he had not been provided with actual notice of the child custody proceedings in the Dominican Republic. The UCCJEA provides that:

a. A court of this State shall treat a foreign country as if it were a state of the United States for purposes of applying [N.J.S.A. 2A:34-53 to -64 (General Provisions)` and N.J.S.A. 2A:34-65 to -74 (Jurisdiction)] if the foreign court gives notice and an opportunity to be heard to all parties before making child custody determinations.

b. A child custody determination made in a foreign county under factual circumstances in substantial conformity with the jurisdictional standards of this act shall be recognized and enforced under [N.J.S.A. 2A:34-75 to -90 (Enforcement)].

c. A court of this State need not apply this act if the child custody law of a foreign country violates fundamental principles of human rights or does not base custody decisions on evaluation of the best interests of the child.

[N.J.S.A. 2A:34-57.]

Here, there is no evidence to suggest that, as a general matter, the courts of the Dominican Republic do not provide parties with notice and an opportunity to be heard before making child custody determinations. It is undisputed that such notice was not provided to defendant when the court in the Dominican Republic issued its custody determination but that was because defendant was not identified as J.R.'s biological father on J.R.'s birth certificate or any other official document.

Although defendant asserts that S.R. and G.R. allowed him to visit J.R., there is no evidence that he formally sought to establish paternity of the child in the nine years after his birth. Moreover, the record makes clear that the child's best interests were taken into account when the court of the Dominican Republic made its child custody determination. The trial court here confirmed that fact in its discussion with the judge in the Dominican Republic.

We are satisfied that the trial court properly found that New Jersey had no significant connection with the parties that would justify the exercise of jurisdiction to render a child custody determination or modify the custody order of the Dominican Republic. The trial court noted that none of the parties are domiciled in New Jersey and there was no evidence in this state concerning that the child's future care, protection or personal relationships. The court additionally noted that J.R. had resided with his grandmother in the Dominican Republic since he was eight months old, and there was no evidence that the child would be at risk of physical harm if he is returned to the custody of his grandmother. In our judgment, the record supports the trial court's finding that the Dominican Republic is the most appropriate and convenient forum to determine issues regarding custody of J.R.

Affirmed.

 

(continued)

(continued)

2

A-0994-08T4

RECORD IMPOUNDED

 

October 5, 2009