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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0056-16T3
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
G.V., JR.,
Defendant-Appellant. ______________________________________
IN THE MATTER OF THE GUARDIANSHIP OF C.G.L.-V AND G.V., III, MINORS. ______________________________________
Argued May 18, 2017 – Decided August 8, 2017
Before Judges Hoffman, O'Connor and Whipple.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0102-14.
Adrienne Kalosieh, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Kalosieh, on the brief).
Merav Lichtenstein, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Lichtenstein, on the brief).
Lisa M. Black, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the brief).
PER CURIAM
This matter returns to us following remand proceedings
directed by our previous opinion, New Jersey Division of Child
Protection & Permanency v. G.V., No. A-1958-14 (App. Div. Feb.
24, 2016). In this action to terminate defendant's parental
rights to his two sons, C.G.L.-V and G.V., III, we found the
trial court's findings of fact and conclusions of law amply
supported by the record.1
However, although before trial the court repeatedly advised
defendant on the record of the trial date and admonished him to
stay in contact with his attorney, particularly if he were
incarcerated, defendant did not appear at trial.2 The trial
proceeded in his absence. Defendant's attorney was present
throughout the trial to represent his interests. Thereafter, it
1 The boys' mother is deceased. 2 Defendant was also ordered to contact his caseworker at the Division of Child Protection and Permanency on a weekly basis, but the last time defendant had any contact with the caseworker was on October 3, 2014, when he appeared for visitation at the Division's office. Additionally, he failed to appear for his psychological evaluation on October 29, 2014. 2 A-0056-16T3 was discovered defendant had been incarcerated at the Monmouth
County Correctional Facility (jail) at the time of trial, which
was held on November 18 and 19, 2014.
We determined it was not clear from the record whether
defendant willingly abandoned all efforts to attend and thus
waived his right to appear at trial. We remanded this matter so
this issue could be explored at an evidentiary hearing, at which
defendant was to be provided the opportunity to introduce
evidence about his intentions and the efforts he expended to
attend the trial. We further stated that if the trial court
determined defendant did not intend to appear and voluntarily
waived his right to attend the trial, the judgment terminating
the defendant's parental rights would be affirmed. Otherwise,
the judgment would be vacated and the matter retried.
On remand, the trial court held an evidentiary hearing, at
which the following persons testified: defendant; his caseworker
at the Division of Child Protection and Permanency (Division);
and the social worker at the jail who was responsible for making
contacts on his behalf with, among other persons and
institutions, the Division and defendant's attorney. During the
hearing, defendant stated he was arrested and placed in the jail
on November 7, 2014, and was aware the trial was to be held on
November 18 and 19, 2014. He testified about his alleged 3 A-0056-16T3 efforts, which he claimed were undertaken on an almost daily
basis from the inception of his incarceration to the time of
trial, to contact the social worker so that she could make the
necessary telephone calls to ensure his appearance at trial.
The social worker testified the first time defendant
requested she take any action was on November 19, 2014, the
second and last day of trial. On this date and in accordance
with defendant's instructions, the social worker called the
Division for the sole purpose of advising it he was
incarcerated.
The trial court found the social worker credible and
defendant not credible. It noted defendant's "recanting of his
daily routine of asking for help sounds rehearsed," and
"conveniently amnesiac." The court further observed,
"[defendant] is familiar with the system. He had been
incarcerated at different times throughout the FN and the FG.
At those times, he had made his whereabouts known so he could
. . . attend the hearings."
On the other hand, the court found the social worker to be
"honest," "trustworthy," and "presented as a professional who
took the responsibilities of her position very seriously." The
court credited her testimony, and, in the final analysis,
concluded defendant failed to expend any effort to attend the 4 A-0056-16T3 trial and waived his right to appear. We are satisfied the
trial court's findings are well-supported by the record, and
affirm those findings for substantially the same reasons set
forth in its oral and written decisions.
The parties did not bring to our attention and we were
unable to find any decisional authority on point in which a
parent in a termination of parental rights proceeding was
advised of the trial date but then made no effort to and in fact
did not appear for trial. Defendant urges we apply the standard
imposed in criminal matters when a defendant fails to appear for
trial. Although the constitutional rights at stake in criminal
matters are not identical to those in termination of parental
rights proceedings, nevertheless, as in criminal matters, vital
constitutional rights are implicated. We therefore draw an
analogy from criminal law.
State v. Finklea instructs, "once a defendant has been
given actual notice of a scheduled trial date, nonappearance on
the scheduled or adjourned trial date is deemed a waiver of the
right to be present during the trial absent a showing of
justification by the defendant." State v. Finklea, 147 N.J.
211, 213 (1996), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139
L. Ed. 2d 63 (1997). Here, defendant was given repeated notices
of the trial dates of November 18 and 19, 2014, and failed to 5 A-0056-16T3 appear on the scheduled trial dates. Defendant also did not
provide a justification for his absence. After an evidentiary
hearing was held to provide defendant an opportunity to explain
his absence from trial, the trial court determined defendant's
claimed efforts to contact the Division in an attempt to secure
his presence at trial were not credible, and concluded there was
no valid reason to justify his failure to attend the trial.
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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-0056-16T3
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
G.V., JR.,
Defendant-Appellant. ______________________________________
IN THE MATTER OF THE GUARDIANSHIP OF C.G.L.-V AND G.V., III, MINORS. ______________________________________
Argued May 18, 2017 – Decided August 8, 2017
Before Judges Hoffman, O'Connor and Whipple.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0102-14.
Adrienne Kalosieh, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Kalosieh, on the brief).
Merav Lichtenstein, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Lichtenstein, on the brief).
Lisa M. Black, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the brief).
PER CURIAM
This matter returns to us following remand proceedings
directed by our previous opinion, New Jersey Division of Child
Protection & Permanency v. G.V., No. A-1958-14 (App. Div. Feb.
24, 2016). In this action to terminate defendant's parental
rights to his two sons, C.G.L.-V and G.V., III, we found the
trial court's findings of fact and conclusions of law amply
supported by the record.1
However, although before trial the court repeatedly advised
defendant on the record of the trial date and admonished him to
stay in contact with his attorney, particularly if he were
incarcerated, defendant did not appear at trial.2 The trial
proceeded in his absence. Defendant's attorney was present
throughout the trial to represent his interests. Thereafter, it
1 The boys' mother is deceased. 2 Defendant was also ordered to contact his caseworker at the Division of Child Protection and Permanency on a weekly basis, but the last time defendant had any contact with the caseworker was on October 3, 2014, when he appeared for visitation at the Division's office. Additionally, he failed to appear for his psychological evaluation on October 29, 2014. 2 A-0056-16T3 was discovered defendant had been incarcerated at the Monmouth
County Correctional Facility (jail) at the time of trial, which
was held on November 18 and 19, 2014.
We determined it was not clear from the record whether
defendant willingly abandoned all efforts to attend and thus
waived his right to appear at trial. We remanded this matter so
this issue could be explored at an evidentiary hearing, at which
defendant was to be provided the opportunity to introduce
evidence about his intentions and the efforts he expended to
attend the trial. We further stated that if the trial court
determined defendant did not intend to appear and voluntarily
waived his right to attend the trial, the judgment terminating
the defendant's parental rights would be affirmed. Otherwise,
the judgment would be vacated and the matter retried.
On remand, the trial court held an evidentiary hearing, at
which the following persons testified: defendant; his caseworker
at the Division of Child Protection and Permanency (Division);
and the social worker at the jail who was responsible for making
contacts on his behalf with, among other persons and
institutions, the Division and defendant's attorney. During the
hearing, defendant stated he was arrested and placed in the jail
on November 7, 2014, and was aware the trial was to be held on
November 18 and 19, 2014. He testified about his alleged 3 A-0056-16T3 efforts, which he claimed were undertaken on an almost daily
basis from the inception of his incarceration to the time of
trial, to contact the social worker so that she could make the
necessary telephone calls to ensure his appearance at trial.
The social worker testified the first time defendant
requested she take any action was on November 19, 2014, the
second and last day of trial. On this date and in accordance
with defendant's instructions, the social worker called the
Division for the sole purpose of advising it he was
incarcerated.
The trial court found the social worker credible and
defendant not credible. It noted defendant's "recanting of his
daily routine of asking for help sounds rehearsed," and
"conveniently amnesiac." The court further observed,
"[defendant] is familiar with the system. He had been
incarcerated at different times throughout the FN and the FG.
At those times, he had made his whereabouts known so he could
. . . attend the hearings."
On the other hand, the court found the social worker to be
"honest," "trustworthy," and "presented as a professional who
took the responsibilities of her position very seriously." The
court credited her testimony, and, in the final analysis,
concluded defendant failed to expend any effort to attend the 4 A-0056-16T3 trial and waived his right to appear. We are satisfied the
trial court's findings are well-supported by the record, and
affirm those findings for substantially the same reasons set
forth in its oral and written decisions.
The parties did not bring to our attention and we were
unable to find any decisional authority on point in which a
parent in a termination of parental rights proceeding was
advised of the trial date but then made no effort to and in fact
did not appear for trial. Defendant urges we apply the standard
imposed in criminal matters when a defendant fails to appear for
trial. Although the constitutional rights at stake in criminal
matters are not identical to those in termination of parental
rights proceedings, nevertheless, as in criminal matters, vital
constitutional rights are implicated. We therefore draw an
analogy from criminal law.
State v. Finklea instructs, "once a defendant has been
given actual notice of a scheduled trial date, nonappearance on
the scheduled or adjourned trial date is deemed a waiver of the
right to be present during the trial absent a showing of
justification by the defendant." State v. Finklea, 147 N.J.
211, 213 (1996), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139
L. Ed. 2d 63 (1997). Here, defendant was given repeated notices
of the trial dates of November 18 and 19, 2014, and failed to 5 A-0056-16T3 appear on the scheduled trial dates. Defendant also did not
provide a justification for his absence. After an evidentiary
hearing was held to provide defendant an opportunity to explain
his absence from trial, the trial court determined defendant's
claimed efforts to contact the Division in an attempt to secure
his presence at trial were not credible, and concluded there was
no valid reason to justify his failure to attend the trial.
As we stated, these findings are amply supported by the
record. Defendant contacted the social worker at the jail on
November 19, 2014, the last day of trial, and requested she
contact the Division, but merely to let it know he was
incarcerated. He did not instruct her to alert the Division
that he wanted to attend trial that day. The only reasonable
interpretation of his actions in this matter is he never
intended to attend trial.
No other issue was raised before the trial court. On
appeal, in addition to attacking the court's decision on the
ground it was not supported by the evidence and thus defendant's
failure to appear for trial should be excused and a new trial
ordered, defendant raises a host of other issues. However, the
only argument properly before us is defendant's contention the
trial court's decision is not supported by the evidence, and the
legal implications to be drawn from the evidence adduced during 6 A-0056-16T3 the trial. Therefore, we decline to consider the new issues
defendant now raises. "Generally, an appellate court will not
consider issues, even constitutional ones, which were not raised
below." State v. Galicia, 210 N.J. 364, 383 (2012).
As for the issue that is properly before us, it is well-
established an appellate court's "review of a trial court's
fact-finding function is limited. The general rule is that
findings by the trial court are binding on appeal when supported
by adequate, substantial, credible evidence." Cesare v. Cesare,
154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v.
Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). An appellate court
"should not disturb the 'factual findings and legal conclusions
of the trial judge unless [it is] convinced that they are so
manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the
interests of justice.'" Id. at 412 (quoting Rova Farms, supra,
65 N.J. at 484).
Based upon the trial court's finding defendant waived his
right to appear at trial, and our affirmance of that ruling, by
this opinion we also affirm the December 3, 2014 judgment of
guardianship terminating defendant's parental rights to his two
sons, C.G.L.-V and G.V., III, consistent with our previous
opinion. 7 A-0056-16T3 Finally, the Division's motion to strike the appendix
attached to defendant's reply brief is denied.
Affirmed.
8 A-0056-16T3