DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.M.

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                        NOT FOR PUBLICATION WITHOUT THE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-3706-16T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

K.M.,

     Defendant-Appellant.
_________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF V.M., A Minor.
_________________________________

              Submitted March 15, 2018 – Decided April 19, 2018

              Before Judges Simonelli and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Hudson County,
              Docket No. FG-09-0124-16.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Steven Edward Miklosey, of
              Counsel and on the brief).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Jason W. Rockwell, Assistant
              Attorney General, of counsel; Lauren J.
              Oliverio, Deputy Attorney General, on the
              brief).
             Joseph E. Krakora, Public Defender, Law
             Guardian, for minor (Joseph Hector Ruiz, on
             the brief).

PER CURIAM

     Defendant K.M.,1 the biological father of V.M. (Vincent), born

in   2012,    appeals   from   the     February     14,    2107     judgment      of

guardianship, which terminated his parental rights to the child.

Vincent's biological mother, M.G.M. (Mary), is deceased.                          On

appeal,   defendant     contends   the     trial   judge    erred    in   finding

respondent New Jersey Division of Child Protection and Permanency

(Division) proved prongs all four prongs of 
N.J.S.A. 30:4C-15.1(a)

by clear and convincing evidence.             We disagree and affirm.

     We will not recite in detail the history of the Division's

involvement with defendant.        Instead, we incorporate by reference

the factual findings set forth in Judge Bernadette N. DeCastro's

February 14, 2017 written opinion.            However, we add the following

comments.

     Defendant    has    a   history     of    heroin     addiction,      domestic

violence, and lack of employment and housing.               He became involved

with the Division on August 18, 2014, as the result of an act of




1 Pursuant to Rule 1:38-3(d), we use initials and fictitious names
to protect the confidentiality of the participants in these
proceedings.



                                       2                                   A-3706-16T2
domestic violence with Mary, which led to her death.     Defendant

was under the influence of drugs at the time of the domestic

violence incident and also used drugs on other occasions when

Vincent was in his care. Defendant's involvement with the Division

prior to his arrest for Mary's death was marked by his non-

compliance with substance abuse treatment.

      On the day of the domestic violence incident, the police

found drugs and drug paraphernalia in the home and saw the home

was in total disarray.   The police arrested defendant and charged

him   with    drug-related   offenses.    Because   defendant    was

incarcerated and Mary was deceased, the Division executed a Dodd2

removal of Vincent, who was present during the domestic violence

incident and allegedly witnessed his mother's death.   The Division

placed Vincent with his maternal uncle, where he remains.        The

maternal uncle wants to adopt him.

      Defendant was released on bail on August 22, 2014.    He was

later arrested, charged with Mary's murder, and incarcerated until

March 2015.    Approximately six months after his release on bail,



2
   "A 'Dodd removal' refers to the emergency removal of a child
children from the home without a court order, pursuant to the Dodd
Act, which, as amended, is found at 
N.J.S.A. 9:6-8.21 to -8.82.
The Act was authored by former Senate President Frank J. 'Pat'
Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 
412 N.J. Super. 593, 609 n.2 (App. Div. 2010).


                                  3                         A-3706-16T2
he relapsed, was arrested, charged with robbery, and his bail was

revoked.    He remains incarcerated and his murder and robbery

charges are pending.       He is in maximum security, where only grief

counselling services were available.

      While defendant reported having abstained from drug use while

incarcerated,     the    Division's   expert    psychologist,   who     Judge

DeCastro    found       more    persuasive     than   defendant's      expert

psychologist, opined defendant did so in a controlled setting and

had to demonstrate sustained abstinence in a community setting

outside prison for at least one year; however, his prognosis was

poor.   Defendant offered no plan for parenting Vincent should he

be released from incarceration, and lacked the psychological and

emotional functioning to resume parental care for the child.

Because defendant remained incarcerated with uncertainty as to the

outcome of his criminal charges, his capacity to provide care for

Vincent within the foreseeable future was unknown.                  Even if

defendant was acquitted of the charges and released, he would lack

the   immediate   means    to   provide   stability   and   permanency     for

Vincent, who needs and deserves permanency.

      The Division's expert also opined that Vincent's uncle is his

psychological parent and Vincent has an emotional attachment to




                                      4                               A-3706-16T2
him.3    There is an intact and secure bond between Vincent and his

uncle, and Vincent has thrived in his care.     If removed from his

uncle, Vincent would suffer emotional and psychological harm.     The

Division's expert further opined that Vincent and defendant had

an insecure bond, defendant was not the child's psychological

parent, and Vincent's uncle could mitigate any harm posed by

separation from defendant.

        A court should terminate parental rights when the Division

shows by clear and convincing evidence that:

            (1) The child's safety, health or development
            has been or will continue to be endangered by
            the parental relationship;

            (2) The parent is unwilling or unable to
            eliminate the harm facing the child or is
            unable or unwilling to provide a safe and
            stable home for the child and the delay of
            permanent placement will add to the harm.
            Such harm may include evidence that separating
            the child from his resource family parents
            would cause serious and enduring emotional or
            psychological harm to the child;

            (3) The [D]ivision has made reasonable
            efforts to provide services to help the parent
            correct the circumstances which led to the
            child's placement outside the home and the
            court   has    considered   alternatives    to
            termination of parental rights; and

            (4) Termination of parental rights will not
            do more harm than good.


3
  Defendant's expert did not conduct a bonding evaluation between
Vincent and his uncle.

                                  5                          A-3706-16T2
             [N.J.S.A. 30:4C-15.1(a).]

      Judge De Castro 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), and thereafter concluded the Division met by clear and

convincing evidence all of the legal requirements for a judgment

of guardianship.      As to prong one, the judge found that due to his

incarceration, unresolved substance abuse and domestic violence

issues, and instability, defendant has been unable to provide a

safe and stabile home for Vincent now or in the foreseeable future.

      As to prong two, the judge found defendant had not corrected

the circumstances that led to Vincent's removal and was unable to

offer a viable plan for Vincent's care due to his uncertain future.

The judge concluded that Vincent requires permanency in a safe and

stable home, further delay in permanency would add to the harm

Vincent will experience, and separation from his uncle would cause

him serious and enduring emotional or psychological harm.

      As to prong three, Judge DeCastro found the Division provided

services to defendant, including substance abuse, psychological,

and   bonding   evaluation,   substance    abuse    treatment,   parenting

skills, counseling, and visitation.         The judge considered, but

found   no   viable    alternatives   to   termination,   including     the

paternal grandmother and paternal aunt.            As to prong four, the

judge found Vincent will not suffer a greater harm from the

                                      6                            A-3706-16T2
termination   of   ties    with   defendant   than   from   the   permanent

disruption of his relationship with his uncle. The judge concluded

it was not in Vincent's best interest to hold him hostage to the

uncertain outcome of defendant's criminal proceedings and the need

for permanency was paramount.

     Judge DeCastro's opinion tracks the statutory requirements

of 
N.J.S.A. 30:4C-15.1(a), accords with N.J. Div. of Youth & Family

Servs. v. F.M., 
211 N.J. 420 (2012), N.J. Div. of Youth & Family

Servs. v. E.P., 
196 N.J. 88 (2008), 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.,


211 N.J. at 448-49.       We affirm substantially for the reasons the

judge expressed in her comprehensive and cogent February 14, 2017

written opinion.

     Affirmed.




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