NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.K and E.W IN THE MATTER OF THE GUARDIANSHIP OF D.W Minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3141-14T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

E.K.,

Defendant-Appellant,

and

E.W.,

Defendant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF D.W.,

Minor.

__________________________________

February 11, 2016

Before Judges Koblitz, Kennedy and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-244-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Edward F. McGinty, Designated Counsel, of counsel and on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian for minor (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

The father, E.K. (Nick)1 appeals from the February 3, 2015 order terminating his paternal rights2 to his then two-year-old daughter, D.W. (Dara). Nick argues that he was denied his procedural due process rights and that the Division of Child Protection and Permanency (Division) failed to prove the four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The Law Guardian joins the Division in arguing that Nick's arguments are without merit. We agree and affirm.

When Dara was born in 2013 she tested positive for PCP and exhibited withdrawal symptoms. She was placed in a resource home3 where she remained throughout the proceedings. Dara's mother struggled with drug abuse problems and incarceration throughout the litigation, while Dara stayed with the resource parent, who now wishes to adopt Dara.

Dara's mother initially named another man as Dara's father. This man, who admitted he could be Dara's father, was located at a correctional facility and requested a DNA paternity test, which ultimately resulted in a negative finding. By this time, Dara was over a year old. Her mother was informed that the man she had named was not the father, and at that time the mother named Nick as a possible father. She had previously named Nick as the possible father of another of her children; however, a DNA test ruled him out at that time. Several months later, after the Division had filed a Guardianship complaint against the mother, Nick was identified as Dara's father through DNA testing, and added to the complaint.

At the time Nick was located, he was enrolled in drug court.4 He told the Division that he would like to visit his daughter, but he appropriately did not offer himself as a placement option for Dara as he was unemployed and had drug and other personal issues. Nick was initially granted four hours of supervised visits with his daughter each week. Nick attended only two visits, after which he failed to appear at any scheduled visitations. Neither Dara nor Nick were comfortable with each other. Nick did not attend the parenting classes scheduled for him by the Division, nor did he attend a scheduled bonding evaluation, nor court hearings, nor an assessment for therapeutic visitation. The Division had difficulty contacting Nick throughout the litigation. Nick was incarcerated in October 2014 and remained so throughout the proceedings.

The mother was released from jail at the end of November 2014 and did not attend the Guardianship trial. Nick did not testify or present any witnesses. The Division presented a caseworker and expert at trial. The Division's expert testified that, unsurprisingly, Dara was closely bonded to her resource parent. The bond was "secure and intact," meaning that Dara viewed the resource parent as "a reliable, trusting caregiver." Further, if Dara was separated from the resource parent she would suffer from "acute harm," and would show regressive behaviors such as screaming and kicking. The expert testified regarding the importance of permanency for Dara, concluding that delaying permanency would not be in the child's best interests.

Judge Lois Lipton in her thorough oral opinion found the testimony of the Division caseworker and expert to be credible. With regard to Nick, Judge Lipton found that he had failed to care for, support, or attend scheduled visits with Dara. The judge stated that Nick failed to provide nurture or care, which caused harm to Dara. She added that Nick's lack of cooperation with the Division resulted in his failure to provide a viable alternative for Dara's care. Judge Lipton found that the Division had made diligent efforts to reunite Dara with both parents. The judge identified the various services offered to Nick, and the multiple efforts to reschedule appointments when Nick did not comply. Further, the judge found that the Division had made efforts to find alternative relative caregivers, but found no suitable relatives. Lastly, although the Division did not have an expert opinion on Dara's bond with Nick due to his failure to appear at the bonding evaluation on two occasions, Judge Lipton reasoned, "given the extremely limited contact [Nick] had with [Dara], common sense tells us there's no bond between them, and that the infant would suffer no harm if she did not see [Nick] again." Conversely, Judge Lipton found that the Division expert had testified about the strong bond between Dara and her resource parent, and that removal would cause harm to Dara. Based on the foregoing, the Family Part terminated Nick's parental rights.

On appeal, Nick raises the following issues

POINT I: THE TRIAL COURT VIOLATED NICK'S RIGHT TO DUE PROCESS IN PERMITTING THE DIVISION TO INITIATE GUARDIANSHIP PROCEEDINGS AGAINST NICK BY AMENDING THE GUARDIANSHIP COMPLAINT

A. The Trial Court Erred in Holding that the Division Made Every Reasonable Effort to Serve the Father with Notice of Initial Child Welfare Proceedings Initiated Upon Dara's Birth.

B. The Trial Court Erred in Failing to Conduct a Permanency Hearing and an Order to Show Cause Hearing Prior to Amending the Guardianship Complaint to Add Nick as a Defendant And Failing to Adjourn the Trial to a Later Date.

C. The Division Had No Authority to Initiate Guardianship Proceedings Against Nick Without First Implementing a Case Plan and Then Establishing That Termination of Nick's Parental Rights was in the Best Interest of the Child.

POINT II: EVEN IF THE DIVISION HAD AUTHORITY TO FILE A GUARDIANSHIP COMPLAINT AGAINST NICK THE TRIAL COURT MUST BE REVERSED BECAUSE THE DIVISION DID NOT PROVE THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1(a) BY CLEAR AND CONVINCING EVIDENCE

A. The Trial Court Erred in Cannibalizing Its Prong Two Findings Into Prong One Harm.

B. The Trial Court Erred in Finding that the Division Proved N.J.S.A. 30:4C-15.1(a)(2) by Clear and Convincing Evidence Where the Division Made almost No Investigation Into Nick's Ability to Safely Parent Dara and Presented Little Evidence in Support of Its Heavy Burden of Proof on this Issue.

C. The Trial Court Erred in Finding that the Division Proved N.J.S.A. 30:4C-15.1(a)(3) By Clear and Convincing Evidence Where the Division Provided No Services Prior to Initiating Guardianship Proceedings and Inadequate Services Thereafter.

D. The Trial Court Erred in Finding that the Division Proved N.J.S.A. 30:4C-15.1(a)(4) By Clear and Convincing Evidence Because the Division Failed to Prove the First Three Prongs and There Was No Proof of Enduring Harm to Dara If She Was Separated From the Foster Parent.

In her comprehensive oral opinion, Judge Lipton found that the Division had proven all four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a), and that termination of Nick's parental rights was in Dara's best interests. On this appeal, our review of the trial judge's decision is limited. We defer to her expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 412 (1998), and we are bound by her 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)). After reviewing the record, we conclude that Judge Lipton's factual findings are fully supported by the record and, in light of those facts, her legal conclusions are unassailable. We thus affirm as to Point II of defendant's brief without further discussion.

Nick contends in Point I of his brief that the trial judge erred in allowing the Division to amend the Guardianship complaint to include Nick. He argues that the Division should not have believed the mother's initial naming of Dara's father, and that the court should have started over with a permanency hearing and an order to show cause hearing prior to amending the complaint. These arguments reflect a misunderstanding of the paramount need to focus on the welfare of the child. In re Guardianship of K.H.O., 161 N.J. 337, 357 (1999).

At the time of Dara's birth, the mother named another man as Dara's father. Given the facts in this case, the Division was entitled to take the word of the mother. The mother's unhesitant naming of the father satisfied the Division's responsibility to identify the biological father for the purposes of notification of Dara's removal and inclusion in the termination petition. See N.J.S.A. 9:6-8.19(a), -8.30, -8.41 (stating that parents are entitled to notice when the Division determines that a child must be taken into protective custody or when the Division effectuates an emergency removal); see also N.J.S.A. 30:4C-17(b), (c) (stating that an absent parent is entitled to notice of a termination proceeding unless his or her identity cannot be determined). The Division had a DNA test performed as soon as the father's identity came into question.

The time for conducting a permanency hearing, N.J.S.A. 9:6-8.54(b)(2), or an order to show cause hearing, R. 5:12-1(f), was long past by the time Nick was found. The termination trial provided Nick with a full opportunity to rebut the Division's case. See generally N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 264 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010) (finding that a defendant's due process rights were fully protected by her ability to challenge the allegations under Title 9 at the subsequent Title 30 trial). Dara was in need of permanence. Nick did not present himself as a possible placement option for his daughter at any point. He had a full opportunity to retain experts, cooperate with services for eight months prior to trial, and demonstrate that he could become a viable option for his child.

It is unfortunate that Nick did not learn that he was Dara's father until eight months before his parental rights were terminated. When he learned of his paternity, Nick did not take advantage of the time that was afforded to him. He only visited his daughter twice, he did not use the services offered to him by the Division, and he did not deal with his drug issues. His argument that more time should have been spent conducting hearings is not persuasive.

Affirmed.

1 We use the fictitious names utilized by appellant in his briefs to protect the confidentiality of the child. R. 1:38-3(d)(12).

2 The order also terminated the parental rights of the mother, who does not appeal.

3 A "resource family home" is defined as a "private residence[] wherein any child in the care, custody, or guardianship of the Department of Children and Families may be placed . . . for care." N.J.S.A. 30:4C-26.1.

4 "Drug Courts are specialized courts within the Superior Court that target drug-involved 'offenders who are most likely to benefit from treatment and do not pose a risk to public safety.'" State v. Maurer, 438 N.J. Super. 402, 408 (App. Div. 2014) (quoting State v. Meyer, 192 N.J. 421, 428-29 (2007)).