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

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                        NOT FOR PUBLICATION WITHOUT THE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-5609-15T1


NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

M.C.,

     Defendant-Appellant.
_______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF D.C., a minor.
_______________________________


              Argued October 31, 2017 – Decided November 6, 2017

              Before Judges Reisner, Gilson and Mayer.

              On appeal from the Superior Court of New
              Jersey, Chancery Division, Family Part, Ocean
              County, Docket No. FG-15-0027-15.

              Charles S. Rosenberg, Designated Counsel,
              argued the cause for appellant (Joseph E.
              Krakora, Public Defender, attorney; Mr.
              Rosenberg, on the brief).

              Amy B. Klauber, Deputy Attorney General,
              argued the cause for respondent (Christopher
              S. Porrino, Attorney General, attorney;
            Melissa H. Raksa, Assistant Attorney General,
            of counsel; Christina Duclos, on the brief.)
            Todd Wilson, Designated Counsel, argued the
            cause for minor (Joseph E. Krakora, Public
            Defender, Law Guardian, attorney; Mr. Wilson,
            on the brief).

PER CURIAM

     Defendant M.C. appeals from a June 3, 2016 order terminating

his parental rights to his daughter, D.C., who was born in January

2005.   On    this   appeal,   he   presents   the   following   points   of

argument:

            I. [M.C.'s] PARENTAL RIGHTS SHOULD NOT BE
            TERMINATED BECAUSE THE FINDINGS OF THE TRIAL
            JUDGE AND THE EVIDENCE ADMITTED AT TRIAL DID
            NOT SUPPORT A LEGAL CONCLUSION THAT ALL FOUR
            PRONGS OF THE BEST INTEREST TEST HAD BEEN
            PROVEN BY CLEAR AND CONVINCING EVIDENCE.

                 A. DCPP DID NOT PROVE BY CLEAR AND
                 CONVINCING    EVIDENCE   THAT   IT
                 PROVIDED REASONABLE SERVICES TO
                 [M.C.]   WITHIN   THE  MEANING  OF
                 
N.J.S.A. 30:4C-15.1(a)(3).

                 B. DCPP DID NOT PROVE BY CLEAR AND
                 CONVINCING    EVIDENCE   THAT   IT
                 INVESTIGATED PLACEMENT OF [D.C.]
                 WITH RELATIVES AS REQUIRED BY
                 
N.J.S.A. 30:4C-15.1(a)(3).

                 C. DCPP DID NOT PROVE BY CLEAR AND
                 CONVINCING      EVIDENCE      THAT
                 TERMINATION WOULD NOT DO MORE HARM
                 THAN GOOD AS REQUIRED BY N.J.S.A.
                 30:4C-15.1(a)(4).

            II. THE JUDGMENT BELOW MUST BE REVERSED
            BECAUSE OF THE FAILURE OF DCPP AND THE COURT


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          TO COMPLY WITH THE NOTICE REQUIREMENTS OF THE
          INDIAN CHILD WELFARE ACT (Not Raised Below).

     After reviewing the record, we find that the trial judge's

factual findings are supported by substantial credible evidence,

and we affirm as to the arguments defendant presents.      See N.J.

Div. of Youth & Family Servs. v. F.M., 
211 N.J. 420, 448 (2012).

The judge correctly concluded that the Division of Child Protection

and Permanency (Division) proved all four prongs of the best

interests test, 
N.J.S.A. 30:4C-15.1(a).      However, we order a

limited, expedited remand to the trial court, due to post-trial

changed circumstances, as discussed in section II below.

                              I

     Before addressing the guardianship trial, we briefly address

defendant's Point II.   Defendant's argument based on the Indian

Child Welfare Act (ICWA), 25 U.S.C.A. §§ 1901-1963, which he raised

for the first time on appeal, is without merit.      On the record

presented to us, there is no legally competent evidence that this

child has any Native American ancestry.    To the contrary, there

is unrebutted sworn evidence that the child has no such ancestry.

Notably, on two occasions, the child's mother swore under oath in

open court that neither the child nor either parent was a member

of, or eligible to be a member of, any Federally-recognized Indian

tribe.   On the second occasion, when the mother was surrendering


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her parental rights in favor of J.M., who was then the child's

foster    parent,   defendant's   attorney   was   present   and   made    no

objection.    See In re Guardianship of J.O., 
327 N.J. Super. 304,

316 (App. Div.), certif. denied, 
165 N.J. 492 (2000).

    Moreover, while this appeal was pending, the Division moved

to supplement the record concerning its post-trial notification

to the Bureau of Indian Affairs, pursuant to ICWA.             The motion

included a certification from a Division worker concerning her

efforts to discover whether the family had any Native American

heritage.     She was unable to contact defendant, however, she

interviewed defendant's sister, who stated that the family had no

Native American ancestry.          In opposing the motion, defendant

provided no certification, or even a representation, concerning

his purported Native American ancestors and from which tribe he

was descended – information the Division would have needed to

notify the tribe under ICWA.

    On this record, the Division's post-trial notification to the

Bureau of Indian Affairs was not required under ICWA, and we need

not consider its sufficiency.        See J.O., supra, 
327 N.J. Super.

at 313.      Defendant's reliance on New Jersey Division of Child

Protection and Permanency v. K.T.D., 
439 N.J. Super. 363 (App.

Div. 2015), is misplaced.         In that case, the parent raised the

ICWA issue in the trial court and provided the Division with

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sufficient information to file an effective notice under the

statute.    Id. at 366, 372.     In this case, defendant's belated and

unsupported    argument     concerning       ICWA    warrants      no    further

discussion.    R. 2:11-3(e)(1)(E).

                                   II

     Turning to the Title 30 issues, the trial record does not

support any of defendant's Point I arguments, and except as

addressed herein, they do not warrant discussion.                  See R. 2:11-

3(e)(1)(E).    We affirm on Points IA and IB substantially for the

reasons stated in the trial judge's thorough oral opinion issued

on June 3, 2016.    We add these comments.

     The evidence is discussed in the judge's opinion and need not

be repeated in the same detail here.                 To briefly summarize,

defendant    initially    lost   contact    with    the    child   due   to   his

committing    domestic     violence       against    the    child's      mother.

Defendant also had a history of substance abuse.                    The record

contains reports that he used crack cocaine in front of the child,

leading to her ingestion of second-hand crack cocaine smoke.                  Even

years later, the child told a psychologist that she recalled

defendant using drugs in her presence.              She also recounted that

defendant told her he would chop her mother up in pieces and break

all of her bones.



                                      5                                  A-5609-15T1
     Defendant     failed     to   cooperate    with   the    drug    treatment,

domestic    violence    counseling,      parenting     training,      and     other

services the Division sought to provide him.                 He later failed,

over a period of several years, to keep in contact with the

Division    so   that   the   agency    could   provide      him   with   further

services.    Defendant lived a transient lifestyle in Staten Island

and refused to come to New Jersey, claiming that he was concerned

that he would be arrested on outstanding warrants.                        His one

appearance for a court event in this case occurred when he was

transported to court from a county jail, where he was incarcerated

on drug charges.

     The Division made appropriate efforts to place the child with

relatives and, in fact, placed her first with a maternal great-

aunt and then with a paternal aunt.             The paternal aunt initially

planned to adopt the child.            However, the placement failed, due

to the child's conflicts with the aunt's biological children.

Defendant did not inform the Division that he had any other

relatives who might be willing and able to care for the child.                     At

the time of the 2016 guardianship trial, which he did not attend,

defendant had not seen the child since January 2013.                 Based on the

trial record, there is substantial credible evidence to support

the trial judge's findings as to the Division's provision of



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services to defendant and the agency's efforts to place the child

with relatives.    See F.M., supra, 
211 N.J. at 448.

     Based on the trial record, we also reject the arguments set

forth in defendant's Point IC, concerning the fourth prong.          As

previously noted, at the time of the trial, defendant had not

visited with the child in more than three years.       He also failed

to attend three scheduled pre-trial psychological evaluations with

Dr. Brandwein, the Division's expert.      Dr. Brandwein testified

that the child was firmly bonded with her foster mother, J.M., and

wanted J.M. to adopt her, a goal J.M. shared.   The child, who was

then eleven years old, also told both Dr. Brandwein and her

Division case worker that she did not want to have contact with

defendant.    Dr. Brandwein also testified to the severe emotional

harm the child would suffer if she were separated from the foster

parent.

     The trial judge concluded that the Division satisfied the

fourth prong and that termination of defendant's parental rights

was in the child's best interests.   See 
N.J.S.A. 30:4C-15.1(a)(4)

("[t]ermination of parental rights will not do more harm than

good.").     The judge also concluded that the child's strong bond

with the foster mother was a factor in proving the second prong

of the best interests test, although that was not the only basis

for her finding that the Division satisfied the second prong.      See

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1 N.J.S.A. 30:4C-15.1(a)(2) (harm to the child includes evidence

that separating the child from the resource family would cause the

child serious and enduring harm).           The record amply supports the

judge's findings.

     However, while this appeal was pending, the Division advised

us that the child's pre-adoptive placement with J.M. had fallen

through, and the child has now been placed with another foster

family, who also wishes to adopt her.           In an updated submission,

filed at our direction just prior to oral argument, the Division

stated that the child's mother, who had surrendered her parental

rights in favor of J.M., has now reasserted those rights.               As a

result,   the   Division    is   once   again   seeking   to   involuntarily

terminate the mother's parental rights, and that litigation is

approaching trial.

     The trial judge's decision on the fourth prong of the best

interests test, and to some extent on the second prong, rested in

part on the child's bond with J.M., the foster mother's willingness

to adopt her, and the harm that would befall the child if she were

separated from J.M.        That situation has changed.         Additionally,

it is now unclear whether the mother will retain her parental

rights, voluntarily surrender them in favor of the new foster

family, or lose them after a Title 30 trial.



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     Due to these changed circumstances, we are constrained to

remand this case to the trial court for a further hearing as to

the child's best interests, related solely to the child's and

defendant's current situation.        The trial court should consider

the child's relationship with her current resource family, her

relationship with defendant, his current ability to act as her

parent,1 and whether termination of defendant's parental rights

would do more harm than good.    Because the child is old enough to

express her preferences, the trial court should consider the

child's current wishes as to her placement.         See N.J. Div. of

Youth & Family Servs. v. E.P., 
196 N.J. 88, 112-13 (2008).      To be

clear, whether the remand is characterized as limited to the fourth

prong or to the second and fourth prongs - to the extent they

overlap - defendant is not entitled to re-litigate the trial

judge's factual findings as to his past conduct or the Division's

past conduct.

      We order this remand reluctantly, bearing in mind that this

child, who is now almost thirteen years old, has suffered enormous

trauma in her young life, has been repeatedly moved from one foster

home to another, has psychological issues that make it difficult

for her to succeed in foster placements, and is greatly in need


1
  In his reply brief, defendant represents that he is now clean
and sober, has stable housing, and has full-time employment.

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of a permanent home.     Therefore, we direct that the proceedings

on remand be expedited to the greatest extent possible.

    Affirmed    in   part,   remanded   in   part.   We   do   not    retain

jurisdiction.




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