NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. W.R.

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NOT FOR PUBLICATION WITHOUT THE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.

W.R.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF J.R.,

a minor.

___________________________________________________

January 28, 2015

 

Submitted January 21, 2015 Decided

Before Judges Fisher and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-420-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jill Stephens-Flores, 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 W.R. appeals an August 7, 2013 order, which established kinship legal guardianship as the most appropriate permanency plan for defendant's now seventeen-year-old daughter, J.R. We find no merit in defendant's arguments and affirm.

The record reveals that, in 2003, defendant was arrested and charged with aggravated sexual assault, child endangerment and child abuse. Consequently, the Division of Youth and Family Services was granted care and supervision of J.R., who was placed with a relative and then, in 2005, reunited with B.R., the child's mother.

Defendant pleaded guilty to child endangerment in 2004 and was sentenced in 2005 to a three-year probationary term; the judgment of conviction imposed on defendant community supervision for life pursuant to the provisions of Megan's Law. When B.R. became homeless in April 2012, the child went to live with defendant, who resided with his sister and her husband. Defendant's parole officer advised the Division that the child was living with defendant, a convicted sex offender. The Division removed the child and placed her with her current foster mother with whom she has since remained.

This action was commenced at the time of the child's removal in May 2012. After an evidentiary hearing, the trial judge approved the Division's permanency plan of kinship legal guardianship with the child's current foster mother, finding it was not in the child's best interests to be reunified with defendant.

The judge later granted the Division's motion to appoint the foster mother as the child's kinship legal guardian and declared that this status should remain in place until the child reaches the age of eighteen (which occurs on June 10, 2015) or when the child is no longer continuously enrolled in high school, whichever event occurs later. By separate order, the judge terminated the action.

Defendant appeals, arguing

THE ORDER APPROVING THE DIVISION'S PERMANENCY PLAN OF KINSHIP LEGAL GUARDIANSHIP, THE ORDER GRANTING THE DIVISION'S MOTION TO AMEND THE COMPLAINT TO KINSHIP LEGAL GUARDIANSHIP, AND THE ORDER GRANTING THE DIVISION'S MOTION TO APPOINT THE FOSTER CARETAKER AS KINSHIP LEGAL GUARDIAN, SHOULD BE REVERSED BECAUSE THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT KINSHIP LEGAL GUARDIANSHIP WAS IN [THE CHILD'S] BEST INTERESTS AND BECAUSE THERE EXISTED CLEAR AND CONVINCING EVIDENCE THAT [DEFENDANT] WAS ABLE TO PROVIDE THE APPROPRIATE LEVEL OF CARE TO HIS DAUGHTER.

Defendant chiefly asserts an "institutional bias" against him because of his status as a convicted sex offender. To be sure, the law expresses a significant degree of concern when circumstances like these are presented. The Legislature has declared that "a person convicted of . . . endangering the welfare of a child . . . shall not be awarded the custody of or visitation rights to any minor child, except upon a showing by clear and convincing evidence that it is in the best interest of the child for such custody or visitation rights to be awarded." N.J.S.A. 9:2-4.1(b). Indeed, this statute demonstrates defendant's argument that the Division failed to prove reunification with him was not in the child's best interests is mistaken; it was defendant who was obligated to show, by clear and convincing evidence, that reunification with him was in the child's best interests. This, according to the judge's findings based on the evidence adduced, he failed to do.

Moreover, the record demonstrates the experienced family judge did not base her decision solely on defendant's past criminal conviction.1 Judge Bernadette N. DeCastro considered the competing expert testimony regarding both defendant and the child, both of whom suffer with cognitive limitations, and relied on the "significant" circumstance that "no expert opined that the child should be returned to her father." And, although the judge observed that defendant's expert, whom the judge found credible, stated "the child would be harmed if she had no contact with her father," the judge recognized in her thorough examination of the evidence that it was not clearly or convincingly established by defendant that it would be in the child's best interest to be reunified with him.2 The judge was satisfied, in light of the defense expert's testimony, however, that defendant did prove "he is not a risk to [the child] and continued contact and unsupervised visits should occur."

The trial judge's findings command our deference because they are based on substantial and credible evidence emanating from the judge's opportunity to see and hear the witnesses. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Because the conclusions drawn by the judge from those findings are firmly based on proper legal principles, we affirm substantially for the reasons set forth by Judge DeCastro in her written opinion.

Affirmed.

1The judge noted in her written decision that defendant's parole officer testified defendant was compliant with the terms of his parole and community supervision for life and, if the court "were to deem [defendant] to be the appropriate caretaker, Parole would not have a problem."

2The judge also observed that the law guardian had represented at the hearing that the child "no longer desired to reside with her father."