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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2960-20
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
L.R.,
Defendant,
and
L.S.,
Defendant-Appellant. ___________________________
IN THE MATTER OF THE GUARDIANSHIP OF M.L.R., a minor. ___________________________
Submitted May 31, 2022 – Decided June 16, 2022
Before Judges Mayer and Natali. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-0022-20.
Joseph E. Krakora, Public Defender, attorney for appellant (Deric Wu, Designated Counsel, on the brief).
Matthew J. Platkin, Acting Attorney General, attorney for respondent (Sookie Bae-Park, Assistant Attorney General, of counsel; John J. Lafferty, IV, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Noel C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM
Defendant L.R. (Leo) 1 appeals from a June 2, 2021 judgment of
guardianship after a trial terminating parental rights to his son, M.L.R. (Mark),
born January 15, 2019.2 Defendant contends plaintiff New Jersey Division of
Child Protection and Permanency (Division) failed to make reasonable efforts
to provide him with services, including paternity testing. We disagree and
affirm.
1 We use initials and pseudonyms to protect the family's identity. R. 1:38- 3(d)(12). 2 Mark's biological mother has not appealed termination of her parental rights. A-2960-20 2 We recite the facts from the testimony adduced during the two-day
guardianship trial. The following witnesses testified at trial: Madeline Mentor,
an adoption case manager for the Division; M.T. (Mary), Mark's resource parent;
and Dr. Elizabeth Stilwell, the Division's expert psychologist.
Mark's biological mother admitted using drugs during her pregnancy. The
hospital where Mark was born had concerns regarding the biological mother's
mental health and drug use. At birth, Mark tested positive for PCP and the
Division became involved. A week after his birth, the Division placed Mark in
a resource home with Mary and her family, where he continues to reside. Mary
and her family plan to adopt Mark.
Mark's biological mother did not list a father on the child's birth
certificate. However, she believed Leo was Mark's father and so informed the
Division. Mark's mother had no information regarding Leo's whereabouts or
how to contact Leo.
On February 11, 2020, the Division filed a guardianship complaint
seeking to terminate Leo's parental rights. In a February 26, 2020 order, the
Family Part judge directed the Division to locate Leo and serve him with the
complaint or, alternatively, submit an affidavit of diligent inquiry. The judge
issued two subsequent orders requiring the Division to find Leo and effectuate
A-2960-20 3 service of the guardianship action. However, the Division only had a telephone
number for Leo's sister and efforts to contact Leo through his sister were
unsuccessful.
On August 27, 2020, Leo telephoned Mentor, the Division's assigned case
manager, and agreed to meet with her the next day. Leo declined to provide his
home address but arranged to meet Mentor at a drug store in East Orange, New
Jersey. At that meeting, Mentor served Leo with the guardianship complaint .
As part of this meeting, Leo agreed to submit to a paternity test and, if confirmed
to be Mark's father, participate in the Division's offered services.
After the initial meeting with Leo, Mentor explained he was "in and out
of jail," and she had no current address or telephone number to contact him
regarding paternity testing, evaluations, or services. Mentor sent a letter to Leo
at an address he provided regarding a scheduled paternity test, but Leo failed to
appear.3 When Mentor telephoned the number Leo provided, no one answered.
In October 2020, the Division learned Leo was incarcerated. However,
Leo was released from jail within a few days. After his release, Leo failed to
provide updated contact information for the Division to arrange services and a
paternity test.
3 The address Leo provided was his grandfather's retirement facility. A-2960-20 4 Leo returned to prison in November 2020. During this period of
incarceration, the Division scheduled several paternity tests for Leo, but the test
providers had limited access to the prison due to the COVID pandemic. 4
Following the judge's order, the Division rescheduled a paternity test for March
31, 2021. However, Leo was released from jail the day before this scheduled
test. Upon his release, Leo again failed to provide updated contact information
to the Division.
Mentor had no contact with Leo after March 2021, and Leo's whereabouts
remained unknown to the Division. Mentor previously gave her contact
information to Leo, and the information remained unchanged through the date
of the guardianship trial. Except for one telephone call in August 2020, Leo
never contacted Mentor.
The guardianship trial proceeded on June 1 and June 2, 2021. As of the
trial date, Leo had not submitted to a paternity test. Neither Mark's biological
mother nor Leo appeared at trial.
4 While in jail, Leo appeared via Zoom for case management conferences with the court and his assigned counsel on February 16 and March 24, 2021. During these proceedings, the judge again ordered paternity testing and directed the prison to cooperate with the Division's scheduled testing. A-2960-20 5 Mentor testified regarding her first and only meeting with Leo. According
to Mentor, Leo admitted knowing Mark's biological mother but did not know
about the pregnancy or the birth of a child. Mentor also explained the difficulty
the Division experienced in arranging for paternity testing while Leo was
incarcerated due to COVID restrictions imposed by the prison. These
restrictions and Leo's failure to provide contact information precluded the
Division from providing a psychological evaluation and services so Leo could
achieve the skills necessary to parent Mark.
Mentor also testified regarding the Division's efforts to locate relatives
who might be willing to care for Mark. Prior to the guardianship trial, the
Division contacted Mark's maternal great-grandfather, grandmother, and aunt
about possible placement for the child. All three relatives declined to care for
Mark. Thus, Mentor explained the Division ruled out these relatives as possible
custodial parents.
Mary, Mark's resource mother, testified she took Mark into her home a
week after his birth. Mary is married and has three other children. She described
the family's positive interactions with Mark. Mary told the judge the family
preferred to adopt Mark rather than pursue kinship legal guardianship.
A-2960-20 6 Dr. Stillwell testified as the Division's psychological expert.
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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-2960-20
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
L.R.,
Defendant,
and
L.S.,
Defendant-Appellant. ___________________________
IN THE MATTER OF THE GUARDIANSHIP OF M.L.R., a minor. ___________________________
Submitted May 31, 2022 – Decided June 16, 2022
Before Judges Mayer and Natali. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-0022-20.
Joseph E. Krakora, Public Defender, attorney for appellant (Deric Wu, Designated Counsel, on the brief).
Matthew J. Platkin, Acting Attorney General, attorney for respondent (Sookie Bae-Park, Assistant Attorney General, of counsel; John J. Lafferty, IV, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Noel C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM
Defendant L.R. (Leo) 1 appeals from a June 2, 2021 judgment of
guardianship after a trial terminating parental rights to his son, M.L.R. (Mark),
born January 15, 2019.2 Defendant contends plaintiff New Jersey Division of
Child Protection and Permanency (Division) failed to make reasonable efforts
to provide him with services, including paternity testing. We disagree and
affirm.
1 We use initials and pseudonyms to protect the family's identity. R. 1:38- 3(d)(12). 2 Mark's biological mother has not appealed termination of her parental rights. A-2960-20 2 We recite the facts from the testimony adduced during the two-day
guardianship trial. The following witnesses testified at trial: Madeline Mentor,
an adoption case manager for the Division; M.T. (Mary), Mark's resource parent;
and Dr. Elizabeth Stilwell, the Division's expert psychologist.
Mark's biological mother admitted using drugs during her pregnancy. The
hospital where Mark was born had concerns regarding the biological mother's
mental health and drug use. At birth, Mark tested positive for PCP and the
Division became involved. A week after his birth, the Division placed Mark in
a resource home with Mary and her family, where he continues to reside. Mary
and her family plan to adopt Mark.
Mark's biological mother did not list a father on the child's birth
certificate. However, she believed Leo was Mark's father and so informed the
Division. Mark's mother had no information regarding Leo's whereabouts or
how to contact Leo.
On February 11, 2020, the Division filed a guardianship complaint
seeking to terminate Leo's parental rights. In a February 26, 2020 order, the
Family Part judge directed the Division to locate Leo and serve him with the
complaint or, alternatively, submit an affidavit of diligent inquiry. The judge
issued two subsequent orders requiring the Division to find Leo and effectuate
A-2960-20 3 service of the guardianship action. However, the Division only had a telephone
number for Leo's sister and efforts to contact Leo through his sister were
unsuccessful.
On August 27, 2020, Leo telephoned Mentor, the Division's assigned case
manager, and agreed to meet with her the next day. Leo declined to provide his
home address but arranged to meet Mentor at a drug store in East Orange, New
Jersey. At that meeting, Mentor served Leo with the guardianship complaint .
As part of this meeting, Leo agreed to submit to a paternity test and, if confirmed
to be Mark's father, participate in the Division's offered services.
After the initial meeting with Leo, Mentor explained he was "in and out
of jail," and she had no current address or telephone number to contact him
regarding paternity testing, evaluations, or services. Mentor sent a letter to Leo
at an address he provided regarding a scheduled paternity test, but Leo failed to
appear.3 When Mentor telephoned the number Leo provided, no one answered.
In October 2020, the Division learned Leo was incarcerated. However,
Leo was released from jail within a few days. After his release, Leo failed to
provide updated contact information for the Division to arrange services and a
paternity test.
3 The address Leo provided was his grandfather's retirement facility. A-2960-20 4 Leo returned to prison in November 2020. During this period of
incarceration, the Division scheduled several paternity tests for Leo, but the test
providers had limited access to the prison due to the COVID pandemic. 4
Following the judge's order, the Division rescheduled a paternity test for March
31, 2021. However, Leo was released from jail the day before this scheduled
test. Upon his release, Leo again failed to provide updated contact information
to the Division.
Mentor had no contact with Leo after March 2021, and Leo's whereabouts
remained unknown to the Division. Mentor previously gave her contact
information to Leo, and the information remained unchanged through the date
of the guardianship trial. Except for one telephone call in August 2020, Leo
never contacted Mentor.
The guardianship trial proceeded on June 1 and June 2, 2021. As of the
trial date, Leo had not submitted to a paternity test. Neither Mark's biological
mother nor Leo appeared at trial.
4 While in jail, Leo appeared via Zoom for case management conferences with the court and his assigned counsel on February 16 and March 24, 2021. During these proceedings, the judge again ordered paternity testing and directed the prison to cooperate with the Division's scheduled testing. A-2960-20 5 Mentor testified regarding her first and only meeting with Leo. According
to Mentor, Leo admitted knowing Mark's biological mother but did not know
about the pregnancy or the birth of a child. Mentor also explained the difficulty
the Division experienced in arranging for paternity testing while Leo was
incarcerated due to COVID restrictions imposed by the prison. These
restrictions and Leo's failure to provide contact information precluded the
Division from providing a psychological evaluation and services so Leo could
achieve the skills necessary to parent Mark.
Mentor also testified regarding the Division's efforts to locate relatives
who might be willing to care for Mark. Prior to the guardianship trial, the
Division contacted Mark's maternal great-grandfather, grandmother, and aunt
about possible placement for the child. All three relatives declined to care for
Mark. Thus, Mentor explained the Division ruled out these relatives as possible
custodial parents.
Mary, Mark's resource mother, testified she took Mark into her home a
week after his birth. Mary is married and has three other children. She described
the family's positive interactions with Mark. Mary told the judge the family
preferred to adopt Mark rather than pursue kinship legal guardianship.
A-2960-20 6 Dr. Stillwell testified as the Division's psychological expert. In March
2021, she conducted a bonding evaluation between Mark and his resource
parents. According to Dr. Stillwell, Mark is "very comfortable" with his
resource family, the resource parents are supportive of Mark, and Mark
responds positively to redirection and limits set by his resource parents.
Dr. Stillwell noted Mary and her husband are the only parental figures
Mark has known since his birth. She opined removing Mark from his resource
parents would be "very disruptive" and "very harmful." If Mark were to be
removed from their custody, Dr. Stillwell explained Mark could suffer
behavioral regression and language delays.
At the conclusion of the testimony, the judge rendered an oral decision
terminating Leo's parental rights. The judge found "by clear and convincing
evidence each of the four prongs of N.J.S.A. 30:4C-15.1" were satisfied by the
Division. The judge further determined the testifying witnesses were
"particularly credible on the areas that they testified to."
Regarding termination of Leo's parental rights, the judge stated, "[i]n spite
of numerous efforts to have [Leo] do a paternity test, [Leo] has never been able
to make that happen; circumstances being that he's been . . . often in jail. For
whatever reason, whether it's the jail's getting in the way, but up until today he
A-2960-20 7 hasn't even appeared at trial." The judge found Leo had been "in and out of jail
throughout the last two years" and "never demonstrated any ability to raise this
child for whatever reason, perhaps mental health issues. [Leo] has not
demonstrated any significant interest in raising the child."
Based on Mentor's testimony, the judge found "the Division has made
more than reasonable efforts to find [Leo] and engage him. But they have not
met with success." The judge noted Leo never provided the Division with a
permanent address or valid contact information. The judge further explained
"the Division has made reasonable efforts to identify a father by attempting to
have the mother identify a possible father. And [the biological mother]
specifically suggested the father was [Leo]."
Regarding the Division's efforts to provide services to Leo, the judge
found "the Division has, through the course of this case, made sincere and
diligent efforts to engage . . . [Leo] in services, such as psychiatric evaluations,
visitation, and efforts to obtain records of mental health treatment." However,
without signed releases to obtain Leo's medical information, the judge explained
the Division "didn't even get to square one . . . ." Thus, the judge determined
"the Division's reasonable efforts . . . have been to no avail."
A-2960-20 8 On appeal, Leo contends the Division's failure to identify Mark's father
prior to trial was not in the child's best interest. He also claims the Division
failed to demonstrate reasonable efforts to determine paternity or provide him
with services. We reject these arguments.
Our review of the Family Part judge's decision is limited. We defer to the
expertise of Family Part judges. Cesare v. Cesare, 154 N.J. 394, 413 (1998).
We are bound by a judge's factual findings so long as the findings are supported
by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M.,
189 N.J. 261, 279 (2007). "[W]e [also] rely on the trial court's acceptance of
the credibility of the expert's testimony and the court's fact-findings based
thereon, noting that the trial court is better positioned to evaluate the witness'
credibility, qualifications, and the weight to be accorded [his or] her testimony."
In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).
Leo challenges the judge's findings regarding the third prong of the best
interests tests. N.J.S.A. 30:4C-15.1(a)(3). Having reviewed the record, we are
satisfied the judge's factual findings under all four-prongs, including the third
prong, were fully supported by the record and, therefore, the judge properly
terminated Leo's parental rights.
A-2960-20 9 Under the third prong of the best interests test, the Division is required to
make reasonable efforts to provide services to parents. N.J.S.A. 30:4C-
15.1(a)(3). Here, the Family Part judge entered multiple orders for Leo to
submit to paternity testing to confirm his biological relationship to Mark. Leo
participated in two case management conferences, on February 16, 2021 and
March 24, 20215, during which Leo, his counsel, and the judge discussed
paternity testing. At the February 16, 2021 case management conference, the
judge informed Leo "[i]f you're not the father, obviously, you don't belong in
the case. But, if you are the father, then we have to work with you, and see what
happens." Leo responded, "Okay." During the same case management
conference, Leo's attorney told the judge that Leo "does expect that the paternity
test will confirm that he is the father of the child" and was "waiting for the
results of the tests to move forward."
It is clear from the record Leo knew as early as August 2020 he could be
Mark's father. Despite multiple court orders compelling paternity testing and
Leo's attendance at two case management conferences, during which paternity
5 The record contains a "certification of lost verbatim court record" from the Union County Transcript Office regarding the court conference on March 24, 2021. According to this certification, the court recording on that date was "blank." A-2960-20 10 testing was addressed, Leo never made any effort to submit to a paternity test
on his own or contact the Division to pursue a paternity test. Although Leo
expressed his willingness to submit to paternity testing to the Division's case
manager and the Family Part judge, he failed to keep the Division apprised of
his whereabouts so testing could be completed. Leo's failure to provide his
contact information resulted in the Division's inability to schedule a paternity
test and provide services.
In reviewing the record, Leo chose to evade his parental responsibilities
regarding Mark based on his refusal to submit to a paternity test to confirm
parentage. The failure to acknowledge parentage to provide even minimal
parenting to Mark constitutes harm sufficient to terminate Leo's parental rights.
See D.M.H., 161 N.J. at 379 (citing In re Guardianship of K.H.O., 161 N.J. 337,
352-54 (1999)).
On this record, we are satisfied the Division made reasonable efforts to
provide paternity testing for Leo. Due to the COVID-19 pandemic, the prison
declined to allow the test administrator to enter the facility and perform the
scheduled the test. Because he participated in at least two case management
conferences regarding the guardianship litigation, Leo knew the Division
scheduled paternity tests while he was incarcerated but the prison refused to
A-2960-20 11 allow the testing. Even after his release from prison on March 30, 2021, Leo
failed to contact the Division to schedule a paternity test or seek a paternity test
on his own. Leo had more than ample time after his release from jail until the
start of the guardianship trial on June 1, 2021 to submit to a paternity test but
failed to do so.
Unlike the father in N.J. Div. of Youth & Fam. Servs. v. I.S., 202 N.J. 145
(2010), Leo did not actively seek services from the Division to learn how to
parent. On the contrary, Leo avoided paternity testing which would have
established parentage and allowed the Division to provide the necessary
services.
Contrary to Leo's argument, the Family Part judge did not cite
incarceration as a basis for terminating his parental rights. See N.J. Div. of
Youth & Fam. Servs. v. R.G., 217 N.J. 527, 555 (2014) (holding "incarceration
alone is insufficient to prove parental unfitness or abandonment and terminate
parental rights"). Rather, Leo's own failure to contact the Division after being
released from prison and provide current contact information to facilitate
paternity testing and other services resulted in the termination of his parental
rights. In fact, if Leo had appeared at the guardianship trial, the judge stated he
would have ordered a paternity test at the courthouse to conclusively determine
A-2960-20 12 parentage. Under these circumstances, Leo has only himself to blame for the
termination of his parental rights.
As we have stated, "[k]eeping [a] child in limbo, hoping for some long
term unification plan, would be a misapplication of the law." N.J. Div. of Youth
& Fam. Servs., v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001). Leo failed
to address the issue of paternity. Had Leo made any effort to submit to a
paternity test, even on the day of trial, and affirmatively seek to establish a
meaningful parent-child relationship, the Division would have provided the
services needed for Leo to parent Mark.
After reviewing the record, we find no factual or legal error in the judge's
termination of Leo's parental rights. We are satisfied the Family Part judge's
decision is overwhelmingly supported by substantial credible evidence in the
record. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49
(2012).
Affirmed.
A-2960-20 13