NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.L.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

M.L.,

Defendant-Appellant,

_______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF S.L.,

Minor.

_______________________________

October 31, 2014

Submitted September 30, 2014 Decided

Before Judges Haas and Higbee.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FG-21-132-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kimberly Gunning-Marcantonio, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Gillian Hemstead, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant M.L., the biological father of S.L., born in October 2007, appeals1 from a January 2, 2014 judgment of guardianship, which terminated his parental rights to the child.2 Defendant argues that the New Jersey Division of Child Protection and Permanency (the "Division") failed to prove each prong of N.J.S.A. 30:4C-15.1a by clear and convincing evidence, and raises the following specific contentions

POINT ONE

THE TRIAL COURT ERRED IN FINDING THAT THE DCPP HAD MET ITS BURDEN ESTABLISHED IN N.J.S.A. 30:4C-15.1.

POINT TWO

THE TRIAL COURT ERRED IN FINDING THAT THE DCPP HAD INITIATED A SEARCH FOR RELATIVES AS REQUIRED BY N.J.S.A. 30:4C-12.1.

POINT THREE

THE TRIAL COURT IMPROPERLY CONSIDERED DEFENDANT'S PRESENT INCARCERATION WHEN WEIGHING THE STATUTORY FACTORS.

After reviewing the evidence presented to the trial court, and in light of prevailing legal standards and arguments presented, we affirm.

We will not recite in detail the history of the Division's involvement with defendant. Instead, we incorporate by reference the factual findings and legal conclusions contained in Judge Kimarie Rahill's thorough oral decision. We add the following brief comments.

Defendant was S.L.'s primary caregiver until she was almost one-year-old. Three days before the child's first birthday, defendant shot and killed the mother of another of his children. Defendant was subsequently convicted of first-degree murder and sentenced to life in prison without the opportunity for parole.3 In June 2009, the Division removed S.L. from her mother's care and, since that time, the child has lived with foster parents, who intend to adopt her. Defendant has had no direct interaction with S.L. since the date of his incarceration. He did not cooperate with the Division and, for a time refused to add the Division caseworker to his visitor's list. He also refused to permit the Division to fill certain prescriptions needed to address S.L.'s special needs and was not forthcoming with information concerning relatives who could be considered as guardians for the child.

The Division presented the expert testimony of Dr. Leslie Trott, a psychologist. Dr. Trott opined that S.L. had no recollection of M.L. and would suffer no harm if defendant's parental rights were terminated. Dr. Trott further testified that S.L. had a strong bond with her foster parents and that it would be detrimental to remove the child from her present placement.

Judge Rahill carefully reviewed the evidence presented, and thereafter concluded that the Division had met by clear and convincing evidence all of the legal requirements for a judgment of guardianship. We agree and find no support for any of defendant's arguments. R. 2:11-3(e)(1)(E). We make the following brief comments concerning our Supreme Court's recent decision in New Jersey Division of Youth & Family Services. v. R.G., 217 N.J. 527, 560 (2014) and the trial judge's consideration of M.L.'s life sentence.

In R.G., supra, the Court held that the standard for terminating parental rights is not different when a parent is incarcerated. Id. at 559. Although a parent's incarceration must be considered by the trial court, it alone is an insufficient basis for termination of parental rights. Id. at 555. Thus, the Division must still prove, and the court must still address, all of the requirements for termination by clear and convincing evidence. Ibid.

In this case, Judge Rahill did exactly what the Supreme Court held should be done in evaluating the totality of the evidence and the role of the incarceration of a parent. Specifically, the court correctly considered the nature of M.L.'s crime, the length of his sentence, and his lack of contact with S.L. for most of S.L.'s life. M.L.'s incarceration was not by itself determinative of the issue, but certainly, as described by the judge, impacted M.L.'s ability to parent S.L. and directly affected her safety and well-being. Judge Rahill's opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1a, accords with 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 supported by substantial and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).

We therefore affirm substantially for the reasons that the judge expressed in her comprehensive and well-reasoned opinion.

Affirmed.

1 This is the second time this case has been before us. In an earlier unpublished opinion, we remanded the matter to the trial court for a new trial in order to give defendant the opportunity to be present at trial. In the Matter of the Guardianship of S.L., Docket No. A-5362-11T1, (App. Div. March 27, 2013).

2 S.L.'s biological mother, C.M., executed a voluntary surrender of her parental rights to S.L. prior to trial and C.M. is therefore not involved in this appeal.

3 The offense occurred in Pennsylvania, where defendant is currently incarcerated.