NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.W. and B.Y and J.P

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                                NOT FOR PUBLICATION WITHOUT THE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-1804-19T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

D.W. and B.Y.,

          Defendants,

and

J.P.,

     Defendant-Appellant.
__________________________

IN THE MATTER OF THE
GUARDIANSHIP OF J.T.W.,
a minor.
__________________________

                   Submitted November 12, 2020 – Decided December 8, 2020

                   Before Judges Fuentes, Rose, and Firko.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Gloucester County,
            Docket No. FG-08-0028-19.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Robyn A. Veasey, Deputy Public Defender,
            of counsel; Steven Edward Miklosey, Designated
            Counsel, on the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Melissa H. Raksa, Assistant Attorney
            General, of counsel; Salima E. Burke, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Meredith Alexis Pollock, Deputy
            Public Defender, of counsel; Nancy P. Fratz, Assistant
            Deputy Public Defender, of counsel and on the brief).

PER CURIAM

      Defendant J.P. is the biological father of J.T.W., a five-year-old boy

identified here as James. 1 On February 20, 2019, the Division of Child

Protection and Permanency (Division) filed a guardianship complaint in the

Chancery Division, Family Part against defendant seeking the termination of his




1
 We use initials to identify the parties and a pseudonym to identify the child to
protect and preserve the confidentiality of these proceedings. R. 1:38-3(d)(12);
R. 5:12-1.


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parental rights to James.2 Judge Mary K. White presided over a three-day trial

on October 15, November 19, and December 10, 2019. Judge White found the

Division proved, by clear and convincing evidence, that termination of

defendant's parental rights was in James' best interest.  N.J.S.A. 30:4C-15.1(a).

On December 16, 2019, Judge White entered a final judgment of guardianship

terminating J.P.'s parental rights.   She articulated her factual findings and

explained her legal analysis in a comprehensive oral decision delivered from the

bench that same day.

      In this appeal, defendant argues the Division did not present sufficient

credible evidence to satisfy the four-prong statutory standard codified in

 N.J.S.A. 30:4C-15.1(a). We disagree and affirm substantially for the reasons

expressed by Judge White. The record shows defendant's criminal activity and

subsequent imprisonment precluded him from developing a meaningful parental

relationship with his young son. Furthermore, during the brief period of time

defendant had unfettered access to James, defendant failed to take any steps to




2
  In this same action, the Division sought to terminate the parental rights of
James' biological mother D.W. to both James and her oldest child, J.W., and
terminate the parental rights of J.W.'s biological father, B.Y. D.W. and B.Y. did
not participate in the proceedings before the Family Part and they are not part
of this appeal.
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protect his son from the chaotic, dysfunctional home environment created by his

biological mother's heroin addiction.

      The record also shows the Division made a good faith effort to verify the

suitability of defendant's alternative placement proposals. The agency sent to

investigate the placement option in Guatemala was unable to gather sufficiently

reliable information to form an opinion about the suitability of the proposed

location.

      By the time this case came before Judge White, the Division had

previously sustained both defendant and James' biological mother for neglect.

The biological mother was arrested after she left James' two older siblings alone

in a parked car while buying illicit drugs. Defendant's neglect arose from two

separate incidents of domestic violence. James was also physically and

cognitively abused by his mother when she continued to use heroin during her

pregnancy. Although defendant resided with James' mother at the time, he

claimed to being unaware of her drug use.

      When James was born, the hospital staff notified the Division about the

biological mother's prenatal heroin use. The Division executed a Dodd 3 removal


3
 "A 'Dodd removal' refers to the emergency removal of a child from the home
without a court order, pursuant to the Dodd Act,  N.J.S.A. 9:6-8.21 to -8.82. The


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of James and his sibling two days later. James suffered from neonatal abstinence

syndrome at birth and remained in the neonatal intensive care unit for an

extended period of time. The Division placed James in a resource home after

he was discharged from the hospital.

      Both defendant and the biological mother participated in court-ordered

services.   The mother participated in intensive outpatient treatment and

methadone maintenance.      In September 2016, after months of successful

supervised and unsupervised parenting time, the Family Part approved the

Division's reunification plan to start in December 2016. This tentative step

toward reunification proved to be short lived.

      On March 6, 2017, defendant was arrested and charged with third degree

aggravated assault with a deadly weapon. He pled guilty to this charge in

September 2017 and was sentenced to a three-year term of imprisonment.

Immigration and Customs Enforcement (ICE) also filed a federal detainer based

on defendant's immigration status as an undocumented alien. He was transferred

to Southern State Correctional Facility in November 2017.




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).
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      Despite multiple referrals, James' biological mother continued to use

heroin while defendant was incarcerated. During a home inspection, Division

caseworkers discovered James and his older sibling were living in "deplorable"

conditions: rotten food littered the apartment, the children were unwashed and

sleeping on a soiled mattress, and the only toilet was inoperable. The Division

executed a second Dodd removal that day and placed James in a resource home.

      During the time defendant served his State prison sentence, the Division

coordinated monthly visits with defendant and James at Southern State Prison.

Caseworkers also encouraged defendant to take advantage of the available

services there.   Although the visits went well, it was highly unlikely that

defendant would remain in the United States upon his release from State prison.

Despite this legal impediment, defendant offered his then-new girlfriend as a

potential placement option for James. The Division ruled her out.

      Defendant also identified his brother in Guatemala as a possible placement

option. The Division arranged for an international agency to visit and inspect

defendant's brothers' house in Guatemala. However, this plan proved to be futile

since his brother only agreed to care for James for three months. The Family

Part approved the Division's plan for termination of parental rights on January

14, 2019. Defendant completed his State prison sentence on June 4, 2019 and


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was thereafter turned over to ICE's custody. He was deported to Guatemala on

June 28, 2019.

      In May 2019, defendant underwent a court-ordered psychological

evaluation. According to psychologist JoAnne González, Ph.D. who authored

the report, defendant "lack[s] insight into his current situation," and "is

distrustful of others." The psychologist was also concerned about defendant's

anger management, "especially when considering his lack of insight." She

opined that defendant was unlikely "to see himself as in need on any services."

Although defendant wanted to offer James "everything he needs," the

psychologist noted he was "unable to discuss the specific aspects of [James'] life

that would identify any of these needs."        Defendant showed "significant

parenting deficits," and possessed "a naïve approach to parenting challenges."

In the psychologist's opinion, termination of defendant's parental rights

supported James' "need [for] permanency in his life."

      Dr. González also conducted a bonding evaluation of defendant with

James.    During the evaluation, defendant suggested another parenting

arrangement, whereby defendant's girlfriend, whom the Division had previously

ruled out, would live with defendant and James in Guatemala for three months.

She would then return to the United States with James for one month before


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returning again to Guatemala for another three-month stay. Dr. Gonzalez found

this arrangement lacked structure and consistency, two indispensable aspects of

a stable home environment. A child needs to reside where he or she can

"anticipate what will happen next."

      Dr. Gonzalez concluded that "[t]he bond between [James] and his father

is positive but insecure." On the positive side, she acknowledged that defendant

"is certainly a familiar person that [James] has become used to visit with some

regularity over the past year." However, James does "not experience[] him as a

parent." The child "does not trust that he will be able to meet his needs at this

time." In Dr. Gonzalez's opinion, James viewed his relationship with defendant

similar to a "distant relative."

      Dr. Gonzalez also conducted a bonding evaluation of the resource parents.

She opined that James and his resource parents had formed a "strong and secure"

bond. The child "loves them, relies on them and knows that they will be there

for him at all times." This strong attachment will allow James to "develop a

sense of basic trust that will also serve as the basis for all future emotional

relationships." Dr. Gonzalez noted that the child already "relate[s] very well to

his foster siblings…." Thus, separation from his resource parents would "result

in an extreme sense of loss for [him]." A rupture of this relationship would be


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a severely negative event that would likely affect James' development and cause

"enduring emotional damage in his life."        Dr. Gonzalez recommended the

termination of defendant's parental rights followed by James' adoption by his

resource parents.

      In her decision, Judge White emphasized that defendant's incarceration

was not a dispositive factor to any statutory prongs of the best interest standard.

She also made clear that she did not rely on any "inclination[s] towards

criminality." However, she would consider defendant's unavailability during his

two years of incarceration. Stated differently, Judge White viewed defendant's

incarceration as "a material factor that bears on whether parental rights should

be terminated." N.J. Div. of Youth & Family Servs. v. R.G.,  217 N.J. 527, 555

(2014) (quoting In re L.A.S.,  134 N.J. 127, 143 (1993)).

      Mindful of these legal standards, Judge White noted that at the time of his

arrest defendant was aware

            he was in an undocumented status and was at risk of []
            deportation. But then add the criminal behavior and the
            conviction and the imprisonment . . . and he greatly
            enhanced that risk.

            So his unavailability is directly linked to his
            incarceration and that’s directly linked to his own
            behaviors, not simply being a refugee in a strange land.
            But putting himself completely in the spotlight of
            public policy by engaging in illegal behavior.

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      The judge reviewed the evidence presented at trial, applied the statutory

standards in  N.J.S.A. 30:4C-15.1(a) not as discrete and separate elements, but

as overlapping factors that "offer a full picture of the child's best interests."

R.G.,  217 N.J. at 554. Guided by these principles, Judge White concluded:

            [James'] bond with his dad is positive, not just that
            there’s an attachment, but that it’s a good one. But it’s
            insecure. And…that…insecurity as being the result of
            dad not being there when, you know, day to day he
            needs dad. And I’ve already gone through all the
            findings about why that’s not excusable or mitigatable
            just because dad couldn’t be there because he was in
            prison….

            The child does not sense that dad is able to meet his
            needs and frankly, based on dad’s plan that he
            presented…I don’t see it either in anyway that dad’s
            plan is a challenge to the Divisions' [burden of]
            proof….

      Our standard of review of a judge's factual findings in these difficult cases

is well-settled and we need not restate it here. Cesare v. Cesare,  154 N.J. 394,

413 (1998). Judge White's findings and conclusions are supported by competent

evidence in the record. We discern no legal basis to disturb them in any way.

We thus affirm substantially for the reasons expressed by Judge White in her

thorough oral decision.

      Affirmed.


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