DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.C.J.

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                        NOT FOR PUBLICATION WITHOUT THE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-1620-16T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

        Plaintiff-Respondent,

v.

E.C.J.,

        Defendant-Appellant,

and

T.B.,

        Defendant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF A.J., a minor.

_________________________________

              Submitted October 26, 2017 – Decided November 20, 2017

              Before Judges Simonelli and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Gloucester
              County, Docket No. FG-08-0047-15.
           Joseph E. Krakora, Public Defender, attorney
           for   appellant  (Steven   Edward  Miklosey,
           Designated Counsel, on the brief).

           Christopher S. Porrino, Attorney General,
           attorney for respondent (Melissa H. Raksa,
           Assistant Attorney General, of counsel; Mary
           A. Hurley, 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, E.C.J.,1 appeals from the Family Part's December

6, 2016 judgment of guardianship and order terminating his parental

rights to his daughter, A.J. (Abagail).2     The Division of Child

Protection and Permanency (Division) and the Law Guardian contend

that the order should be affirmed.    After reviewing the record in

light of the applicable legal standards, we affirm substantially

for the reasons stated by Judge Timothy W. Chell in his thorough

oral decision placed on the record on December 6, 2016.

     The pertinent evidence adduced at trial is summarized as

follows.     Abagail was born in September 2011.   In 2014, she was

diagnosed with Lymphoma and is required to have a high degree of



1
    We use initials and pseudonyms to protect the identity of the
family.
2
    The child's mother, defendant T.B., surrendered her parental
rights on December 5, 2016, and is not the subject of this appeal.

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specialized        care.         She   is     under   treatment       directed      by    the

Children's Hospital of Philadelphia (Hospital).

       The Division became involved with Abagail's family in 2013

when issues arose about her mother T.B.'s ability to provide

adequate housing for Abagail and her sibling.                           Soon after the

Division became involved, T.B. was arrested and found in possession

of counterfeit controlled dangerous substances.                         At the time of

her   arrest,      defendant       was      already      incarcerated    for    unrelated

charges.

       During the litigation of the Title 9 and guardianship actions,

it was determined that defendant had a history of drug and alcohol

abuse. The Division offered defendant numerous services to address

his problems, but he was not able to successfully complete the

programs.      In addition to addiction issues, defendant was unable

to    remain    available         to     Abagail      because    he     was    repeatedly

incarcerated.            After his release in 2013, defendant was re-

incarcerated just prior to the fact-finding hearing in the Title

9 action.      He was released a short time later, but re-incarcerated

in 2015 for violating parole.

       The Division investigated the possibility of placing Abagail

in    the   care    of     her    relatives,       but    background     investigations

revealed     that    placement         with    available      relatives       was   not    an

alternative.        They were either unwilling or not able to care for

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the child.      Instead, the Division placed Abagail with a resource

family who has cared for her since she came to live at their home.

The resource family has continually attended to Abagail's medical

needs and wishes to adopt her.

      In 2015, Abagail's paternal grandmother (Debra) expressed an

interest in seeking custody.             She had no contact with the Division

or Abagail since the Division became involved.                 Nevertheless, the

Division began an investigation into placing Abagail with Debra

and by September 2015 its plan was for Debra to adopt Abagail.

      As its investigation developed, however, in November 2015,

the Division revised its plan for Abagail to adoption by her

resource family.        The Division changed its position because its

background investigations into Debra revealed an open warrant for

her   arrest,    and    reports     of    abnormal      behavior   that    involved

contacting    police     about    alleged       computer    hacking   by    unknown

perpetrators      due    to   her    alleged       involvement     with     various

celebrities.     A psychological evaluation of Debra raised concerns

about her mental health, however, she did not pose a risk of danger

to Abagail.      The Division also received information from Debra's

mother about Debra's ability to care for Abagail.                  Significantly,

the Hospital also raised concerns about Debra's understanding of

the   severity    of    Abagail's    illness      and    the   child's     need   for

appropriate      treatment    and    the       proper   administration      of    her

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medications.      Also, the Division's inspection of Debra's home led

to its determination that it was inappropriate because it posed

hazards and obstructions.

       Just prior to the scheduled trial date in the guardianship

action, and evidently in response to the Division's change in its

plan for Abagail, Debra filed a separate action seeking custody.

That matter was heard on the same day that Judge Chell was to

begin    the     guardianship      trial.3           After    considering     Debra's

testimony,       Judge     Chell   made    credibility         determinations       and

specific findings of fact before denying her application.                           The

judge concluded that Debra failed to prove there was any change

in circumstances affecting the child's welfare, and that it was

vital to Abagail's best interests that she remain in the Division's

custody and placed with her resource family.

       Judge Chell proceeded to hear the guardianship matter.                         At

that    trial,    the    Division's       caseworker         and   its   psychologist

testified      for   the    Division.          The    Law    Guardian     called    its

investigator and a social worker from the Hospital.                      Defendant did

not appear for trial, but Debra testified on his behalf.

       At the conclusion of the trial, Judge Chell found that the

Division had satisfied all four prongs of the best interests test



3
    The matter was filed under Docket FD-08-1013-15.

                                           5                                   A-1620-16T1
as set forth in 
N.J.S.A. 30:4C-15.1(a), placing his findings on

the record in a comprehensive oral decision.                  The judge heavily

weighed the resource family's "ability to identify signs and

symptoms of [Abagail's] serious medical issues[,]" their efforts

to seek "appropriate medical attention[,]" and their commitment

to adoption and the Division's concerns about potential placement

with Debra.     Judge Chell observed that the unrefuted expert

testimony established that Abagail demonstrated "strong, positive

and healthy attachments" to both Debra and her resource mother,

but found that the resource mother was better able to provide the

"stability [that] is paramount to [Abagail] in her current state

of medical fragility and recurrence of her cancer."               He also found

"no abuse of the Division's investigative or decision making

authority[,]"   and   determined   that        it    "prove[d]   by   clear     and

convincing evidence that alternatives to termination of parental

rights were considered."     This appeal followed.

      On appeal, defendant challenges Judge Chell's findings as to

the   third   and   fourth   prongs       of   the     best    interests     test.

Specifically, he argues:

                POINT I

                THE TRIAL COURT ERRED IN FAILING TO
                ADEQUATELY CONSIDER ALTERNATIVES TO
                TERMINATION OF PARENTAL RIGHTS.



                                      6                                    A-1620-16T1
                 POINT II

                 THE TRIAL COURT ERRED IN CONCLUDING
                 THAT THE DIVISION HAD DEMONSTRATED
                 BY CLEAR AND CONVINCING EVIDENCE
                 THAT TERMINATION OF E.J.'S PARENTAL
                 RIGHTS WOULD NOT DO MORE HARM THAN
                 GOOD.

     We conclude from our review that defendant's arguments are

without    sufficient   merit   to   warrant   discussion   in   a   written

opinion.    R. 2:11-3(e)(1)(E).      Judge Chell 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), including the Division's efforts

to investigate and place Abagail with relatives, and concluded the

Division met by clear and convincing evidence all of the legal

requirements for a judgment of guardianship as to defendant.              The

judge's opinion tracked the statutory requirements of 
N.J.S.A.

30:4C-15.1(a), in accordance with N.J. Div. of Youth & Family

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

Servs. v. M.M., 
189 N.J. 261 (2007), 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.,

supra, 
211 N.J. at 448.

     Affirmed.




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