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

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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1321-16T5

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

        Plaintiff-Respondent,

v.

C.D.-M.,

        Defendant-Appellant,

and

H.O.,

     Defendant.
________________________________

IN THE MATTER OF THE
GUARDIANSHIP OF C.D.-O.,
H.D.-O. and M.D.-O.,

     Minors.
_________________________________

              Submitted January 24, 2018 – Decided February 12, 2018

              Before Judges Koblitz, Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Union County,
              Docket No. FG-20-0024-16.
            Joseph E. Krakora, Public Defender, attorney
            for appellant (Ryan T. Clark, Designated
            Counsel, on the briefs).

            Gurbir S. Grewal, Attorney General, attorney
            for respondent (Jason W. Rockwell, Assistant
            Attorney General, of counsel; Samuel J.
            Fillman, Deputy Attorney General, on the
            brief).

            Joseph E. Krakora, Public Defender, Law
            Guardian, attorney for minors (Noel C. Devlin,
            Assistant Deputy Public Defender, of counsel
            and on the brief).

PER CURIAM

     Defendant C.D.-M. (Carl) appeals from a Family Part order

terminating his parental rights to his three minor children, C.D.-

O. (Chelsea), H.D.-O. (Harry) and M.D.-O. (Michael) (collectively,

children).1      Carl contends that the Division of Child Protection

and Permanency (Division) failed to prove each prong of the best

interests test of 
N.J.S.A. 30:4-15 and 
N.J.S.A. 30:4-15.1.

      In     a   comprehensive    and       well-reasoned   122-page    written

decision,     Judge   Richard    C.   Wischusen    found    the   Division   had

satisfied the four prong test by clear and convincing evidence and

held that the termination was in the children's best interests.

In re Guardianship of K.H.O., 
161 N.J. 337, 354 (1999).                Based on

our review of the record and applicable law, we are satisfied the



1 Pursuant to Rule 1:38-3(d)(12) and Rule 5:12-1, we use
pseudonyms for the parents, the children, the resource parents and
the paternal aunt and uncle to protect their confidentiality.

                                        2                              A-1321-16T5
evidence in favor of the guardianship petition adequately supports

the termination of Carl's parental rights.   See N.J. Div. of Youth

& Family Servs. v. M.M., 
189 N.J. 261, 279 (2009) (holding that a

reviewing court should uphold the factual findings respecting the

termination of parental rights if they are supported by substantial

and credible evidence in the record as a whole).    Accordingly, we

affirm.

     The evidence is set forth in detail in the judge's opinion.

A summary will suffice here.      Carl is the biological father of

Harry and Michael, and is listed as Chelsea's father on her birth

certificate.   Results obtained from a paternity test revealed Carl

is not Chelsea's biological father.    In April 2015, the Division

informed H.O. (Helen), the biological mother of all three children,

that C.R. (Cole) was the biological father of Chelsea.   Helen was

unaware of Cole's whereabouts.2

     In October 2014, the Division received a referral stating

that Helen left the family residence and never returned; and Carl

was experiencing difficulty caring for the children. Since Helen's

abandonment in June 2014, Carl commenced a pattern of leaving the

children with his brother H.D.M. (Henry) and Henry's wife, C. –



2
  During trial, Cole contacted the Division. With the assistance
of counsel, Cole surrendered his parental rights to Chelsea on
September 14, 2016. Neither Cole nor Helen appealed.

                                  3                         A-1321-16T5
M.D.M. (Cindy).    By September 2014, Carl presented Henry with a

notarized letter that gave parental custody of the children to

Henry and Cindy.     The children remained in their care until

November 2014, when due to family and financial concerns expressed

by Henry, the Division requested that Carl retrieve his children

to reside with him.3    Carl was reunited with the children and

together they resided in a "living room area of a single-family

home."     The Division provided emergency funds for food and an

initial rental payment conditioned upon Carl finding sustainable

housing.

     In December 2014, Carl notified Division caseworker Fabiola

Ricaldi that he and the children slept in the basement of the

building where they resided because he was       evicted from the

residence for non-payment of rent.      Ricaldi met with Carl and

observed him to be intoxicated.   She also observed Carl had facial

injuries, which according to Carl, were the result of a fistfight.

Due to concerns regarding Carl's stability, parenting skills,

substance abuse, and financial ability to care for the children,

an emergency removal was effectuated by the Division.     
N.J.S.A.

9:6-8.29.



3
   Henry testified that it was Carl's decision to retrieve the
children. Henry denied making a statement that he was no longer
able to serve as the children's caregiver.

                                  4                         A-1321-16T5
     At the time of the removal, the Division contacted Henry and

Cindy to explain the placement process to obtain custody of the

children, if they could establish their immigration status, but

they declined consideration.4   Thereafter, Henry was sent a rule

out letter from the Division, which was not appealed, and the

children were placed in non-relative resource care with the Rodgers

family.

     Following the children's placement, the Division offered Carl

reunification services, which included visitation and referrals

for substance abuse and psychological evaluations.   The record is

replete with accounts of non-compliance or failed attempts by

Carl, due to his relapse with alcoholism, to avail himself of the

services provided.   Throughout this time, the Division completed

satisfactory monthly visits with the children and the Rodgers

family.   A decision was made by the Division to transfer the case

to the adoption unit.   The Division filed a guardianship complaint

in January 2016.

     A nineteen-day guardianship trial commenced on July 18, 2016,

whereby the Division sought termination of parental rights of Carl

and Helen.    The Division took the position that it was in the



4
  Ricaldi was unaware that Division policy permitted the placement
of children in their custody to be placed with undocumented
resource parents under certain circumstances.

                                 5                          A-1321-16T5
children's best interest to be adopted by Henry and Cindy.       The

Law Guardian agreed with the Division's recommendation of parental

rights termination, but argued in favor of adoption by the Rodgers

family.   Carl, through counsel, opposed termination of his rights,

but argued in the alternative that it would serve the children's

best interest to be adopted by Henry and Cindy.

     In addition to fact witnesses, psychological expert Dr. Frank

J. Dyer testified on behalf of the Division, psychological expert

Dr. Carolina Mendez testified on behalf of the Law Guardian, and

Dr. Aida Ismael-Lennon, also a psychological expert, testified on

behalf of Carl.

     Dyer determined that termination of Carl's parental rights

would not negatively impact the children and that permanency would

benefit the children's well-being and emotional stability.         He

opined that permanency could be achieved in either prospective

home, although removing Michael and Harry from the Rodgers' home

would "have a disturbing and distressing negative psychological

impact" because "it does appear that [the Rodgers] are these

children's psychological parents."    Dyer also testified that the

common culture and a sufficient positive connection between the

children, Henry and Cindy, was enough to "prevent any effect that

would cause these children to have serious psychological damage

or long-lasting psychological damage."

                                 6                          A-1321-16T5
     Mendez     expressed    concerns    regarding     Carl's    ability     to

independently    parent     the   children   because    "he     doesn't    even

acknowledge that he has a drinking problem."            Mendez opined that

the children are "closely bonded" to the Rodgers and recognize

them as their "primary attachment figure[s]" or "psychological

parent[s]."     Mendez further stated that all three children would

encounter "severe and enduring harm" if their relationship with

the Rodgers was severed.

     Lennon opined that although Henry and Cindy were capable of

providing a nurturing environment for the children, the children

would suffer "long and enduring harm" if removed from the Rodgers'

home.

     A judgement terminating Carl's parental rights and approving

a permanency plan of adoption by the Rodgers was issued on November

16, 2016, accompanied by the judge's opinion, which gave thoughtful

attention to the importance of permanency and stability.                   This

appeal followed.

     On this appeal, our review of the judge's decision is limited.

We defer to his expertise as a Family Part judge, Cesare v. Cesare,


154 N.J. 394, 412 (1998), and we are bound by the factual findings

so long as they are supported by sufficient credible evidence.

M.M., 
189 N.J. at 279 (citing In re Guardianship of J.T., 
269 N.J.

Super. 172, 188 (App. Div. 1993)).             We conclude the factual

                                     7                                A-1321-16T5
findings by the judge are fully supported by the record and the

legal conclusions drawn therefrom are unassailable.

    Affirmed.




                               8                        A-1321-16T5


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