Opinion
DOCKET NO. A-1958-14T2
02-24-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. G.V., JR., Defendant-Appellant, and K.A.L., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF C.G.L.-V. and G.V., III, Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter Milligan, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sara K. Bennett, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-102-14. Joseph E. Krakora, Public Defender, attorney for appellant (Peter Milligan, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sara K. Bennett, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Defendant G.V., Jr., appeals a final judgment terminating his parental rights to his two sons, presently ages 5 and 7. Defendant contends he was impaired from attending the guardianship trial due to his incarceration. He also claims the Division of Child Protection and Permanency (Division) failed to meet the first three prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Although satisfied that it did, we are constrained to remand this matter for a hearing to determine whether defendant's absence from the trial was voluntary.
The boys' mother is deceased.
The four prongs in this statute are as follows:
(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 division 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.
[N.J.S.A. § 30:4C-15.1(a).]
The facts are set forth at length in the trial court's comprehensive written opinion, and we will not repeat them, except to briefly note defendant has abused illicit substances for many years and, despite participating in a number - although not all - of the drug treatment services offered to him by the Division, has been unable to remain drug free. In fact, he tested positive for opiates just six weeks before the trial. The boys have been living with their maternal grandparents since 2011, with whom they are bonded. The Division's expert psychologist, found by the trial court to be credible, concluded the grandparents are the children's psychological parents. The grandparents want to adopt the boys if defendant's parental rights are terminated.
Our review of the trial court's decision is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "[T]he trial court's factual findings should be upheld when supported by adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). We defer to the trial court's credibility findings and, in particular, its fact findings because of its expertise in family matters, see N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010), unless the trial court's findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).
Parents have a right to raise and maintain a relationship with a child without State interference. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008). This right is protected by the United States and New Jersey Constitutions. Ibid. This right is not absolute, as it is limited by the "State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). The State has a strong public policy that favors placing children in a permanent, safe, and stable home. See In re Guardianship of K.H.O., 161 N.J. 337, 357 (1999).
When terminating parental rights, the court focuses on the child's best interests. Ibid. The State must satisfy the best- interests-of-the-child test by showing all four prongs in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence, in order to terminate parental rights. F.M., supra, 211 N.J. at 447-48. These four prongs require a fact-sensitive examination of the particularized evidence presented in each case. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007).
The trial court's written opinion evaluated and concluded the evidence clearly and convincingly proved each statutory prong required for termination of defendant's parental rights, and awarded guardianship to the Division. We reject the defendant's challenges attacking the sufficiency of the trial court's conclusions. The court's findings are amply supported by the evidence and clearly support the termination of defendant's parental rights for the reasons set forth by the court in its well-reasoned opinion issued on December 2, 2014. R. 2:11-3(e)(1)(A).
That said, defendant did not appear for trial. After the trial it was discovered he had been in the Monmouth County Jail at the time of trial, a fact about which neither defense counsel nor the Division was aware. The record reveals that, four months before trial, the court admonished defendant on the record at a case management conference to notify his attorney in the event he were incarcerated. Two months before trial, the court advised defendant on the record of the trial date.
At a post-trial conference we surmise was held so the court could advise defendant by when he had to file an appeal, the Division alerted the court to the fact defendant had been in jail at the time of trial. Defense counsel did not volunteer and defendant was not questioned about why he failed appear for trial. On appeal, defendant argues provision should have been made to have him transported from the jail in Monmouth County to Essex County for trial.
Defendant appeared by telephone at this conference.
What is not clear from the record is whether defendant willingly abandoned all efforts to attend the trial, thus waiving his right to appear, as indicated, for example, by his alleged failure to advise his attorney of his whereabouts when he was incarcerated a number of weeks before the trial. But given the loss of his parental rights to his children is at stake, a right protected by both the federal and New Jersey constitutions, see E.P., supra, 196 N.J. at 102, it is appropriate this issue be explored at a hearing, at which defendant shall have the opportunity to introduce evidence about his intentions and the efforts he expended to attend the trial. If the court determines defendant did not intend to appear at and voluntarily waived his right to attend the trial, the judgment shall be affirmed. Otherwise, the judgment shall be vacated and the matter retried.
Remanded to the trial court for further proceedings in accordance with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION