DCPP VS. A.P, IN THE MATTER OF THE GUARDIANSHIP OF A.P. (FG-02-0041-19, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 30, 2020
• Docket: A-0664-19T2
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0664-19T2

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

A.P.,

Defendant-Appellant. _________________________

IN THE MATTER OF THE GUARDIANSHIP OF A.P., a minor. _________________________

Submitted October 1, 2020 – Decided October 30, 2020

Before Judges Fuentes, Whipple, and Firko.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-0041-19.

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

Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Assistant Attorney General, of counsel; Julie B. Colonna, Deputy Attorney General, on the brief).

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

PER CURIAM

Defendant, A.P. (Anthony), 1 appeals from a September 26, 2019,

judgment in favor of the New Jersey Division of Child Protection and

Permanency (Division) terminating his parental rights to his son, A.P. (Avery).

Having carefully reviewed the record, we affirm primarily for the reasons

expressed in the thorough written opinion of Judge Michael Antoniewicz issued

with the judgment.

Defendant raises the following issues on appeal:

I. THE TRIAL COURT ERRED FINDING THAT [THE DIVISION] CONDUCTED A FAIR

1 For the sake of anonymity and because the initials are the same, we utilize the pseudonyms from defendant's brief to protect the parties and the child. See R. 1:38-3(d)(13).

A-0664-19T2 2 INVESTIGATION RULING OUT S.J. AS A RELATIVE PLACEMENT.

II. [THE DIVISION]'S DUAL USE OF DR. DYER TO TESTIFY AGAINST ANTHONY AND TO CONDUCT AN EVALUATION OF S.J. AS PART OF A FAIR INVESTIGATION INTO RELATIVE PLACEMENT VIOLATED DUE PROCESS OF LAW. (NOT RAISED BELOW).

III. THE [TRIAL] COURT IMPERMISSIBLY ALLOWED ADMISSION OF EVIDENCE RELATING TO [ANTHONY]'S JUVENILE RECORD, WHICH VIOLATES N.J.S.A. 2A:4A-60.

Anthony is the biological father of Avery, born in November 2015.

Avery's mother, A.W. (Allison), surrendered her parental rights to the resource

family in 2018 and is not a party to this appeal. The Division first became

involved with this family when Avery was born due to Allison's prior reports of

domestic violence. Our review of the record reveals Anthony has a lengthy

history of instability due to criminality, substance abuse, and psychiatric

problems. Avery was initially removed from the care of his parents by the

Division when they were incarcerated.

At the time of their arrests, the parents left Avery with Anthony's mother.

When the Division learned that the paternal grandmother was ineligible for

Avery's placement, the Division conducted an emergency removal pursuant to

N.J.S.A. 9:6-8.29. At three months old, Avery was placed in a non-relative

A-0664-19T2 3 resource home, where he remains. The Division later explored placing Avery

with numerous members of Anthony's family but ruled each one out. In June

2017, Frank Dyer, PhD, conducted a psychological evaluation of Anthony at the

Bergen County Jail. Due to restrictions at the jail, Dr. Dyer could not conduct

a bonding evaluation at that time. After reviewing Anthony's criminal history,

Dr. Dyer opined that Anthony minimized his problematic history, and that his

substance abuse was significant and would impact his ability to appropriately

care for Avery. Psychological testing revealed that Anthony suffered from

anxiety, post-traumatic stress disorder, and depression. His responses were

indicative of bipolar disorder and antisocial personality disorder.

Dr. Dyer conducted a bonding evaluation with Avery and his resource

parents, with whom he had been placed since he was three months old. Dr. Dyer

concluded that Avery was securely bonded to his resource parents. Dr. Dyer

opined that because Avery only saw Anthony on a weekly basis, Avery would

not suffer any serious or long-term harm if contact with Anthony ceased. Dr.

Dyer ultimately stated that Avery "should not be allowed to linger in the

uncertain status of foster care while further attempts are made to rehabilitate the

birth parents, in light of their multiple serious problems, lack of progress to date,

and poor prognosis."

A-0664-19T2 4 In November 2017, Anthony requested the Division consider S.J., his

adult first cousin, as a relative placement. The Division withdrew its complaint

in order to explore additional relative placements for Avery but found no relative

placements willing or able to take responsibility for the care and custody of the

child. Based on our review of the record, we reject Anthony's argument that

the Division failed to conduct a fair investigation. Anthony was released from

prison in December 2018. He stopped communicating with the Division case

worker and had not visited his child beyond January 2019. He did not attend

the trial.

On September 26, 2019, Judge Antoniewicz issued a written opinion

terminating Anthony's parental rights to Avery and entered a judgment of

guardianship. Judge Antoniewicz gave thoughtful attention to the importance

of permanency and stability from the perspective of Avery's needs, and found

the Division had established by clear and convincing evidence all four prongs

of the best-interests test, N.J.S.A. 30:4C-15.1(a), which permits termination of

parental rights. In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).

In 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, 411-13

(1998), and we are bound by his factual findings so long as they are supported

A-0664-19T2 5 by sufficient credible evidence, N.J. Div. of Youth & Family Servs. v. M.M.,

189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172,

188 (App. Div. 1993)).

We add the following comments to address Anthony's second and third

arguments. Anthony claims that the court improperly admitted evidence relating

to his juvenile records. His counsel objected on the basis of relevance. Even if

we were to agree, we consider this harmless error. Furthermore, Anthony did

not challenge the second prong of the best-interest test.

Anthony also argues for the first time here that it was erroneous for the

Division to use Dr. Dyer's opinion to support its determination to rule out S.J.

as a relative placement. Anthony asserts that Dr. Dyer's assessments should not

be used in a dual role. Issues that were not raised at trial "will ordinarily not be

considered on appeal unless they are jurisdictional in nature or substantially

implicate the public interest." Div. of Youth & Family Servs. v. M.C. III, 201

N.J. 328, 339 (2010).

We conclude the factual findings of Judge Antoniewicz are fully

supported by the record, and the legal conclusions drawn therefrom are

unassailable.

Affirmed.

A-0664-19T2 6