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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5609-15T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
M.C.,
Defendant-Appellant. _______________________________
IN THE MATTER OF THE GUARDIANSHIP OF D.C., a minor. _______________________________
Argued October 31, 2017 – Decided November 6, 2017
Before Judges Reisner, Gilson and Mayer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-0027-15.
Charles S. Rosenberg, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Rosenberg, on the brief).
Amy B. Klauber, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Christina Duclos, on the brief.) Todd Wilson, Designated Counsel, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief).
PER CURIAM
Defendant M.C. appeals from a June 3, 2016 order terminating
his parental rights to his daughter, D.C., who was born in January
2005. On this appeal, he presents the following points of
argument:
I. [M.C.'s] PARENTAL RIGHTS SHOULD NOT BE TERMINATED BECAUSE THE FINDINGS OF THE TRIAL JUDGE AND THE EVIDENCE ADMITTED AT TRIAL DID NOT SUPPORT A LEGAL CONCLUSION THAT ALL FOUR PRONGS OF THE BEST INTEREST TEST HAD BEEN PROVEN BY CLEAR AND CONVINCING EVIDENCE.
A. DCPP DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT PROVIDED REASONABLE SERVICES TO [M.C.] WITHIN THE MEANING OF N.J.S.A. 30:4C-15.1(a)(3).
B. DCPP DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT INVESTIGATED PLACEMENT OF [D.C.] WITH RELATIVES AS REQUIRED BY N.J.S.A. 30:4C-15.1(a)(3).
C. DCPP DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION WOULD NOT DO MORE HARM THAN GOOD AS REQUIRED BY N.J.S.A. 30:4C-15.1(a)(4).
II. THE JUDGMENT BELOW MUST BE REVERSED BECAUSE OF THE FAILURE OF DCPP AND THE COURT
2 A-5609-15T1 TO COMPLY WITH THE NOTICE REQUIREMENTS OF THE INDIAN CHILD WELFARE ACT (Not Raised Below).
After reviewing the record, we find that the trial judge's
factual findings are supported by substantial credible evidence,
and we affirm as to the arguments defendant presents. See N.J.
Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012).
The judge correctly concluded that the Division of Child Protection
and Permanency (Division) proved all four prongs of the best
interests test, N.J.S.A. 30:4C-15.1(a). However, we order a
limited, expedited remand to the trial court, due to post-trial
changed circumstances, as discussed in section II below.
I
Before addressing the guardianship trial, we briefly address
defendant's Point II. Defendant's argument based on the Indian
Child Welfare Act (ICWA), 25 U.S.C.A. §§ 1901-1963, which he raised
for the first time on appeal, is without merit. On the record
presented to us, there is no legally competent evidence that this
child has any Native American ancestry. To the contrary, there
is unrebutted sworn evidence that the child has no such ancestry.
Notably, on two occasions, the child's mother swore under oath in
open court that neither the child nor either parent was a member
of, or eligible to be a member of, any Federally-recognized Indian
tribe. On the second occasion, when the mother was surrendering
3 A-5609-15T1 her parental rights in favor of J.M., who was then the child's
foster parent, defendant's attorney was present and made no
objection. See In re Guardianship of J.O., 327 N.J. Super. 304,
316 (App. Div.), certif. denied, 165 N.J. 492 (2000).
Moreover, while this appeal was pending, the Division moved
to supplement the record concerning its post-trial notification
to the Bureau of Indian Affairs, pursuant to ICWA. The motion
included a certification from a Division worker concerning her
efforts to discover whether the family had any Native American
heritage. She was unable to contact defendant, however, she
interviewed defendant's sister, who stated that the family had no
Native American ancestry. In opposing the motion, defendant
provided no certification, or even a representation, concerning
his purported Native American ancestors and from which tribe he
was descended – information the Division would have needed to
notify the tribe under ICWA.
On this record, the Division's post-trial notification to the
Bureau of Indian Affairs was not required under ICWA, and we need
not consider its sufficiency. See J.O., supra, 327 N.J. Super.
at 313. Defendant's reliance on New Jersey Division of Child
Protection and Permanency v. K.T.D., 439 N.J. Super. 363 (App.
Div. 2015), is misplaced. In that case, the parent raised the
ICWA issue in the trial court and provided the Division with
4 A-5609-15T1 sufficient information to file an effective notice under the
statute. Id. at 366, 372. In this case, defendant's belated and
unsupported argument concerning ICWA warrants no further
discussion. R. 2:11-3(e)(1)(E).
II
Turning to the Title 30 issues, the trial record does not
support any of defendant's Point I arguments, and except as
addressed herein, they do not warrant discussion. See R. 2:11-
3(e)(1)(E). We affirm on Points IA and IB substantially for the
reasons stated in the trial judge's thorough oral opinion issued
on June 3, 2016. We add these comments.
The evidence is discussed in the judge's opinion and need not
be repeated in the same detail here. To briefly summarize,
defendant initially lost contact with the child due to his
committing domestic violence against the child's mother.
Defendant also had a history of substance abuse. The record
contains reports that he used crack cocaine in front of the child,
leading to her ingestion of second-hand crack cocaine smoke. Even
years later, the child told a psychologist that she recalled
defendant using drugs in her presence. She also recounted that
defendant told her he would chop her mother up in pieces and break
all of her bones.
5 A-5609-15T1 Defendant failed to cooperate with the drug treatment,
domestic violence counseling, parenting training, and other
services the Division sought to provide him. He later failed,
over a period of several years, to keep in contact with the
Division so that the agency could provide him with further
services. Defendant lived a transient lifestyle in Staten Island
and refused to come to New Jersey, claiming that he was concerned
that he would be arrested on outstanding warrants. His one
appearance for a court event in this case occurred when he was
transported to court from a county jail, where he was incarcerated
on drug charges.
The Division made appropriate efforts to place the child with
relatives and, in fact, placed her first with a maternal great-
aunt and then with a paternal aunt. The paternal aunt initially
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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-5609-15T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
M.C.,
Defendant-Appellant. _______________________________
IN THE MATTER OF THE GUARDIANSHIP OF D.C., a minor. _______________________________
Argued October 31, 2017 – Decided November 6, 2017
Before Judges Reisner, Gilson and Mayer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-0027-15.
Charles S. Rosenberg, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Rosenberg, on the brief).
Amy B. Klauber, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Christina Duclos, on the brief.) Todd Wilson, Designated Counsel, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief).
PER CURIAM
Defendant M.C. appeals from a June 3, 2016 order terminating
his parental rights to his daughter, D.C., who was born in January
2005. On this appeal, he presents the following points of
argument:
I. [M.C.'s] PARENTAL RIGHTS SHOULD NOT BE TERMINATED BECAUSE THE FINDINGS OF THE TRIAL JUDGE AND THE EVIDENCE ADMITTED AT TRIAL DID NOT SUPPORT A LEGAL CONCLUSION THAT ALL FOUR PRONGS OF THE BEST INTEREST TEST HAD BEEN PROVEN BY CLEAR AND CONVINCING EVIDENCE.
A. DCPP DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT PROVIDED REASONABLE SERVICES TO [M.C.] WITHIN THE MEANING OF N.J.S.A. 30:4C-15.1(a)(3).
B. DCPP DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT INVESTIGATED PLACEMENT OF [D.C.] WITH RELATIVES AS REQUIRED BY N.J.S.A. 30:4C-15.1(a)(3).
C. DCPP DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION WOULD NOT DO MORE HARM THAN GOOD AS REQUIRED BY N.J.S.A. 30:4C-15.1(a)(4).
II. THE JUDGMENT BELOW MUST BE REVERSED BECAUSE OF THE FAILURE OF DCPP AND THE COURT
2 A-5609-15T1 TO COMPLY WITH THE NOTICE REQUIREMENTS OF THE INDIAN CHILD WELFARE ACT (Not Raised Below).
After reviewing the record, we find that the trial judge's
factual findings are supported by substantial credible evidence,
and we affirm as to the arguments defendant presents. See N.J.
Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012).
The judge correctly concluded that the Division of Child Protection
and Permanency (Division) proved all four prongs of the best
interests test, N.J.S.A. 30:4C-15.1(a). However, we order a
limited, expedited remand to the trial court, due to post-trial
changed circumstances, as discussed in section II below.
I
Before addressing the guardianship trial, we briefly address
defendant's Point II. Defendant's argument based on the Indian
Child Welfare Act (ICWA), 25 U.S.C.A. §§ 1901-1963, which he raised
for the first time on appeal, is without merit. On the record
presented to us, there is no legally competent evidence that this
child has any Native American ancestry. To the contrary, there
is unrebutted sworn evidence that the child has no such ancestry.
Notably, on two occasions, the child's mother swore under oath in
open court that neither the child nor either parent was a member
of, or eligible to be a member of, any Federally-recognized Indian
tribe. On the second occasion, when the mother was surrendering
3 A-5609-15T1 her parental rights in favor of J.M., who was then the child's
foster parent, defendant's attorney was present and made no
objection. See In re Guardianship of J.O., 327 N.J. Super. 304,
316 (App. Div.), certif. denied, 165 N.J. 492 (2000).
Moreover, while this appeal was pending, the Division moved
to supplement the record concerning its post-trial notification
to the Bureau of Indian Affairs, pursuant to ICWA. The motion
included a certification from a Division worker concerning her
efforts to discover whether the family had any Native American
heritage. She was unable to contact defendant, however, she
interviewed defendant's sister, who stated that the family had no
Native American ancestry. In opposing the motion, defendant
provided no certification, or even a representation, concerning
his purported Native American ancestors and from which tribe he
was descended – information the Division would have needed to
notify the tribe under ICWA.
On this record, the Division's post-trial notification to the
Bureau of Indian Affairs was not required under ICWA, and we need
not consider its sufficiency. See J.O., supra, 327 N.J. Super.
at 313. Defendant's reliance on New Jersey Division of Child
Protection and Permanency v. K.T.D., 439 N.J. Super. 363 (App.
Div. 2015), is misplaced. In that case, the parent raised the
ICWA issue in the trial court and provided the Division with
4 A-5609-15T1 sufficient information to file an effective notice under the
statute. Id. at 366, 372. In this case, defendant's belated and
unsupported argument concerning ICWA warrants no further
discussion. R. 2:11-3(e)(1)(E).
II
Turning to the Title 30 issues, the trial record does not
support any of defendant's Point I arguments, and except as
addressed herein, they do not warrant discussion. See R. 2:11-
3(e)(1)(E). We affirm on Points IA and IB substantially for the
reasons stated in the trial judge's thorough oral opinion issued
on June 3, 2016. We add these comments.
The evidence is discussed in the judge's opinion and need not
be repeated in the same detail here. To briefly summarize,
defendant initially lost contact with the child due to his
committing domestic violence against the child's mother.
Defendant also had a history of substance abuse. The record
contains reports that he used crack cocaine in front of the child,
leading to her ingestion of second-hand crack cocaine smoke. Even
years later, the child told a psychologist that she recalled
defendant using drugs in her presence. She also recounted that
defendant told her he would chop her mother up in pieces and break
all of her bones.
5 A-5609-15T1 Defendant failed to cooperate with the drug treatment,
domestic violence counseling, parenting training, and other
services the Division sought to provide him. He later failed,
over a period of several years, to keep in contact with the
Division so that the agency could provide him with further
services. Defendant lived a transient lifestyle in Staten Island
and refused to come to New Jersey, claiming that he was concerned
that he would be arrested on outstanding warrants. His one
appearance for a court event in this case occurred when he was
transported to court from a county jail, where he was incarcerated
on drug charges.
The Division made appropriate efforts to place the child with
relatives and, in fact, placed her first with a maternal great-
aunt and then with a paternal aunt. The paternal aunt initially
planned to adopt the child. However, the placement failed, due
to the child's conflicts with the aunt's biological children.
Defendant did not inform the Division that he had any other
relatives who might be willing and able to care for the child. At
the time of the 2016 guardianship trial, which he did not attend,
defendant had not seen the child since January 2013. Based on the
trial record, there is substantial credible evidence to support
the trial judge's findings as to the Division's provision of
6 A-5609-15T1 services to defendant and the agency's efforts to place the child
with relatives. See F.M., supra, 211 N.J. at 448.
Based on the trial record, we also reject the arguments set
forth in defendant's Point IC, concerning the fourth prong. As
previously noted, at the time of the trial, defendant had not
visited with the child in more than three years. He also failed
to attend three scheduled pre-trial psychological evaluations with
Dr. Brandwein, the Division's expert. Dr. Brandwein testified
that the child was firmly bonded with her foster mother, J.M., and
wanted J.M. to adopt her, a goal J.M. shared. The child, who was
then eleven years old, also told both Dr. Brandwein and her
Division case worker that she did not want to have contact with
defendant. Dr. Brandwein also testified to the severe emotional
harm the child would suffer if she were separated from the foster
parent.
The trial judge concluded that the Division satisfied the
fourth prong and that termination of defendant's parental rights
was in the child's best interests. See N.J.S.A. 30:4C-15.1(a)(4)
("[t]ermination of parental rights will not do more harm than
good."). The judge also concluded that the child's strong bond
with the foster mother was a factor in proving the second prong
of the best interests test, although that was not the only basis
for her finding that the Division satisfied the second prong. See
7 A-5609-15T1 N.J.S.A. 30:4C-15.1(a)(2) (harm to the child includes evidence
that separating the child from the resource family would cause the
child serious and enduring harm). The record amply supports the
judge's findings.
However, while this appeal was pending, the Division advised
us that the child's pre-adoptive placement with J.M. had fallen
through, and the child has now been placed with another foster
family, who also wishes to adopt her. In an updated submission,
filed at our direction just prior to oral argument, the Division
stated that the child's mother, who had surrendered her parental
rights in favor of J.M., has now reasserted those rights. As a
result, the Division is once again seeking to involuntarily
terminate the mother's parental rights, and that litigation is
approaching trial.
The trial judge's decision on the fourth prong of the best
interests test, and to some extent on the second prong, rested in
part on the child's bond with J.M., the foster mother's willingness
to adopt her, and the harm that would befall the child if she were
separated from J.M. That situation has changed. Additionally,
it is now unclear whether the mother will retain her parental
rights, voluntarily surrender them in favor of the new foster
family, or lose them after a Title 30 trial.
8 A-5609-15T1 Due to these changed circumstances, we are constrained to
remand this case to the trial court for a further hearing as to
the child's best interests, related solely to the child's and
defendant's current situation. The trial court should consider
the child's relationship with her current resource family, her
relationship with defendant, his current ability to act as her
parent,1 and whether termination of defendant's parental rights
would do more harm than good. Because the child is old enough to
express her preferences, the trial court should consider the
child's current wishes as to her placement. See N.J. Div. of
Youth & Family Servs. v. E.P., 196 N.J. 88, 112-13 (2008). To be
clear, whether the remand is characterized as limited to the fourth
prong or to the second and fourth prongs - to the extent they
overlap - defendant is not entitled to re-litigate the trial
judge's factual findings as to his past conduct or the Division's
past conduct.
We order this remand reluctantly, bearing in mind that this
child, who is now almost thirteen years old, has suffered enormous
trauma in her young life, has been repeatedly moved from one foster
home to another, has psychological issues that make it difficult
for her to succeed in foster placements, and is greatly in need
1 In his reply brief, defendant represents that he is now clean and sober, has stable housing, and has full-time employment.
9 A-5609-15T1 of a permanent home. Therefore, we direct that the proceedings
on remand be expedited to the greatest extent possible.
Affirmed in part, remanded in part. We do not retain
jurisdiction.
10 A-5609-15T1