Opinion
DOCKET NO. A-5623-12T1
10-16-2014
STATE OF NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. P.S., Defendant-Appellant. IN THE MATTER OF THE KINSHIP LEGAL GUARDIANSHIP OF Y.S., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; John W. Tolleris, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor Y.S. (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Simonelli. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket Nos. FN-11-194-08 and FL-11-11-13. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; John W. Tolleris, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor Y.S. (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant P.S., the biological father of Y.S., appeals the trial court's order granting a kinship legal guardianship ("KLG") placement of Y.S. with a foster family in New Jersey. The foster family is also caring for Y.S.'s half-brother, K.C., pursuant to a separate KLG arrangement. The father of K.C. has not participated in this appeal, nor has D.C., the mother of both children.
Defendant contends that the trial court lacked sufficient credible evidence to order a KLG for Y.S. under the criteria specified in the KLG statute, N.J.S.A. 3B:12A-6(d). He further contends that the trial court violated his constitutional due process rights by declining his request to participate in the KLG trial by telephone from Canada, where he was living at the time as a refugee. We affirm.
Defendant is a citizen of the Republic of Congo who lived in New Jersey with Y.S. from the time of her birth in February 2003 until she was about a year old. He then left New Jersey and has not resided here since that time. Y.S. was left in the care of her mother D.C., along with her half-brother. As of the time of the permanency hearings in the Family Part in this case, defendant could not lawfully travel to the United States. His ability to continue to reside in Canada and obtain citizenship in that country was, at best, uncertain.
The children were removed from D.C.'s care by the Division of Child Protection and Permanency ("the Division") after she exhibited serious mental health problems that rendered her unable to safely function as a parent. The Family Part granted the Division custody of both children in November 2009. They remained together in a foster home until May 2011 when they were placed for a period of time with an aunt in North Carolina. The children were returned to New Jersey in September 2011 because of behavioral problems. Thereafter, the children were placed in a different therapeutic home with a foster family in New Jersey, and they remained there as of the time of the trial in this case. The record shows that defendant has had virtually no contact with the Division during the time that the children have been in foster care.
The Division sought KLG placement for the children under the Kinship Act, N.J.S.A. 3B:12A-1 to -7. The statute established KLG "as an alternative permanent placement option without the need for termination of parental rights and 'where adoption is neither feasible nor likely[.]'" N.J. Div. of Youth & Fam. Servs. v. L.L., 201 N.J. 210, 223 (2010) (quoting N.J.S.A. 3B:12A-1(c)). In order to appoint a KLG, the court must find by clear and convincing evidence that:
(1) each parent's incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child;
(2) the parents' inability to perform those functions is unlikely to change in the foreseeable future;
(3) in cases in which the [D]ivision is involved with the child . . . (a) the [D]ivision exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary; and (b) adoption of the child is neither feasible nor likely; and
(4) awarding kinship legal guardianship is in the child's best interests.
[N.J.S.A. 3B:12A-6(d).]
After considering the proofs, the trial judge concluded that the criteria for KLG placement were met and that the two half-siblings should remain together in New Jersey in the same therapeutic home. The judge rejected defendant's request that the children be separated and that the daughter Y.S. be sent to live with him in Canada.
As part of the judge's reasoning in his detailed seventy-three-page written opinion, he expressed concerns about the precarious immigration status of defendant and the lack of certainty that defendant would be allowed by the immigration authorities to continue to live in Canada. In addition, the judge relied on bonding evaluations and other expert testimony from two psychologists, Dr. Elayne Weitz and Dr. Maureen Santina, who had been respectively presented by the Division and the Law Guardian. Both Dr. Weitz and Dr. Santina substantiated the close ties that the children had developed with their foster parents and with one another, and they supported the Division's request for KLG placement.
Appellant offered a competing psychological expert, Dr. Susan Cohen Esquilin. The defense expert opined that it would be beneficial for Y.S. to be separated from her half-brother because she tends to be a "parentified" child who at times functions as a mother figure to K.C., who has special needs. The experts for the Division and the Law Guardian disagreed with Dr. Esquilin's assessment, instead perceiving that Y.S.'s interactions with K.C. were generally age-appropriate.
The trial judge concluded that the opinions of the experts for the Division and the Law Guardian were more persuasive than those of Dr. Esquilin. The judge also found it significant that defendant's lifestyle has been unstable and at times irresponsible, describing him as a "worldwide vagabond."
On appeal, we must accord substantial deference to Family Part judges who preside over proceedings where KLG has been sought. "We will not disturb the factual findings of the trial judge unless they are unsupported by adequate, substantial and credible evidence in the record." N.J. Div. of Youth & Fam. Servs. v. S.F., 392 N.J. Super. 201, 210 (App. Div.), certif. denied, 192 N.J. 293 (2007); see also N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 278-79 (2007) (applying similar deferential review standards in the analogous Title 30 context of the termination of a parent's rights). We adhere to these well-established standards of review primarily "[b]ecause of the family courts' special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
Having considered the record through this limited prism of appellate review, we affirm the final judgment approving the KLG placement, substantially for the extensive reasons soundly expressed in the trial judge's lengthy written opinion dated March 4, 2013. The judge had an ample evidential basis to conclude that the Division had proven the necessary criteria under the KLG statute by clear and convincing proof. The judge also had the prerogative to find the expert opinions of Drs. Weitz and Santina more persuasive than those of Dr. Esquilin. With respect to the opinions of qualified experts, a trial court is free to accept or reject the testimony of any party's expert, in full or in part. Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002); see also Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961). This principle flows out of the well-known proposition that jurors, or a judge in a bench trial, have the best "opportunity to hear and see the witnesses and to get a feel for the case that the reviewing court [cannot] enjoy." Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 132 (1997) (internal quotation marks omitted), certif. denied, 171 N.J. 443 (2002). The judge's ruling, which results in KLG placements of both Y.S. and her half-brother with the same foster family, also comports with the general custodial preference to keep related children together in the same household when it is feasible to do so. See S.M. v. A.W., 281 N.J. Super. 63, 71 (App. Div. 1995).
We likewise reject defendant's claim of a deprivation of due process based upon the court's denial of his application to participate in the trial from Canada by telephone. The judge denied the request for multiple logistical and other reasons, many, but not all of which we endorse. The judge did offer defendant the alternative opportunity to have his deposition videotaped and thereafter supplied to the court, an option which defendant did not pursue. However, defendant did submit a certification presenting his version of the facts, which the judge admitted into evidence and duly considered. Defendant was also represented throughout the Family Part proceedings by a defense attorney provided by the Public Defender.
Under the circumstances, the trial court did not misapply its discretion or deprive defendant of due process by rejecting his request to testify and appear by telephone. See Aqua Marine Prods, Inc. v. Pathe Computer Control Sys. Corp., 229 N.J. Super. 264, 272-75 (App. Div. 1988) (disfavoring the use of telephonic testimony, except in "special situations in which there is either exigency or consent and in which the witness' identity and credentials are known quantities"); see also State v. Santos, 210 N.J. 129, 138-39 (2012) (endorsing the cautious approach to telephonic testimony called for under Aqua Marine, underscoring the legal system's centuries-long requirement "that witnesses deliver testimony in person and in open court" and "the factfinder's all-important function of observing the demeanor and evaluating the credibility of each witness that comes before the court").
We rejected a defendant parent's similar due process claims in N.J. Div. of Youth & Fam. Servs. v. M.Y.J.P., 360 N.J. Super. 426 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004). In that case, the defendant faced termination of her parental rights, but she was unable to appear at trial because she resided in Haiti and "might be unable to obtain a visa to enter the United States." Id. at 437. The trial court entered an order providing that the defendant would be permitted to appear by telephone. Ibid. However, the defendant was ultimately unable to participate telephonically because "Haiti lacked the telephonic or technical capabilities" to enable her to do so. Id. at 438.
On appeal in M.Y.J.P., we rejected the defendant's argument that her due process rights were violated by the failure to have her testimony presented by telephone. We concluded that various procedural safeguards put in place by the trial court adequately sufficed to protect the defendant's interests. Id. at 471. These safeguards included the defendant's representation by "aggressive, exceptionally competent counsel"; an opportunity to review the trial transcripts, consult with her attorney, and "engage in deferred cross-examination of the Division's witnesses"; and the ability to present rebuttal evidence. Id. at 469. We emphasized that there was "no showing that [M.Y.J.P.'s] able counsel's cross-examination was adversely affected by the fact that his client was not present in the courtroom." Ibid.
Here, although defendant's trial attorney twice requested that he be allowed to appear by telephone, she did not object to trial court's denial of her requests, nor did she raise the issue again at any point during the permanency or KLG hearings. In fact, during her opening statement at the permanency hearing, defense counsel noted that her client had "endeavored to be a part of this litigation by phone, but for reasons, procedural reasons which we all understood, he could not do that." (emphasis added).
Defense counsel appeared at each of the ensuing proceedings, and had the opportunity to cross-examine all six of the Division's testifying witnesses. In contrast, as the Division rightly notes, the agency "was deprived of the [comparative] opportunity to cross-examine [defendant] where discrepancies in his history or prior statements could be exposed." Further, as we have already noted, defendant declined the option offered to him to have his deposition videotaped and provided to the court. There was manifestly no due process violation here.
We note that the defense counsel did not request that her client be given the opportunity to participate in a live "simulcast" or "closed-circuit" video conference. The appellate record does not indicate whether a courtroom in the vicinage equipped with the necessary technology for such a live video-conference was then available. Although the trial court would not be obligated to utilize such video conference equipment if it were available, we encourage the court to make use of that technology in the future if similar situations with travel-restricted defendants arise.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION