NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
P.D., Defendant-Appellant, and A.W., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF S.D., Minor.
September 19, 2017
appeal from Superior Court of New Jersey, Chancery Division,
Family Part, Bergen County, Docket No. FG-02-0082-14.
Patricia Nichols, Assistant Deputy Public Defender, argued
the cause for appellant (Joseph E. Krakora, Public Defender,
attorney; Ms. Nichols, of counsel and on the briefs).
Elliott M. Siebers, Deputy Attorney General, argued the cause
for respondent (Christopher S. Porrino, Attorney General,
attorney; Andrea M. Silkowitz, Assistant Attorney General, of
counsel; Mr. Siebers, on the brief).
C. Devlin, Assistant Deputy Public Defender, argued the cause
for minor (Joseph E. Krakora, Public Defender, Law Guardian,
attorney; Mr. Devlin, of counsel and on the brief).
Judges Yannotti, Leone and Mawla.
appeals from a judgment entered by the Family Part on July
22, 2015, which terminated his parental rights to the minor
child S.D. On appeal, P.D. argues that the judgment
should be reversed because the Division of Child Protection
and Permanency (Division) and the trial court failed to
comply with the Vienna Convention on Consular Relations
(VCCR), April 24, 1963, 21 U.S.T. 77; he was denied
due process and the right to effective assistance of counsel;
and the Division failed to establish with clear and
convincing evidence the criteria for termination of his
parental rights. We reject these arguments and affirm the
trial court's judgment.
briefly summarize the salient facts and procedural history.
In August 2006, A.W. gave birth to S.D. and several days
later, the Division received a report that the child was
living in an apartment where certain individuals were using
alcohol and drugs. Two days later, the hospital where S.D.
was born reported to the Division that S.D. had tested
positive for cocaine. The Division investigated the report
and substantiated physical abuse by A.W., based upon the
child's positive drug test.
August 25, 2006, the Division removed S.D. from A.W.'s
care on an emergent basis without a court order and placed
the child in a resource home. Thereafter, the Division filed a
verified complaint in the Family Part, seeking care, custody,
and supervision of S.D., which the court granted. In
September 2006, A.W. stipulated that she had abused or
neglected the child. Several days later, the Division placed
S.D. in the care of K.A., a maternal relative, and her
first court appearance in August 2006, P.D. disputed
paternity of S.D. Tests confirmed, however, that P.D. was the
child's biological father. P.D. did not offer himself as
a placement for the child at that time, but the Division
provided him with supervised visitation. Initially,
P.D.'s visitation took place at the resource home, but in
January 2007, the visits were supervised at the
Division's office due to an incident between the
biological parents and the resource parents. The Division
later returned the child to A.W.'s physical custody, but
remained involved with the family.
March 2007, the Family Part judge entered an order, which
precluded P.D. from having any contact with S.D. until he
complied with a required psychological evaluation and
substance-abuse assessment. P.D. later participated in a
psychological evaluation. In addition, between May and August
2 007, P.D. attended a substance abuse program.
stopped attending the program because he was charged with a
violation of probation. He had been serving a probationary
term due to a conviction in 2006 on drug charges. P.D. also
has a history of domestic violence against A.W. and another
woman, C.F., whom he later married.
January 2008, the trial court dismissed the abuse or neglect
proceedings without making any findings concerning P.D. The
court's order stated that A.W. and P.D. shared legal
custody of S.D., and A.W. would have physical custody of the
child. At some point, P.D. was charged with aggravated
assault. He pled guilty to an offense and the court sentenced
him to a three-year prison term, beginning in March 2008. In
December 2008, P.D. was deported to his home country of Cape
Verde, off the coast of Africa.
years later, in April 2012, the Division received a report of
domestic violence involving A.W. and her paramour, J.G. S.D.
was then five years old. The Division investigated the report
and substantiated A.W. for neglect. In July 2012, the
Division filed a complaint in the Family Part, seeking care
and supervision of S.D., and the court granted the
application. In August 2012, the Division informed P.D. that
it was again involved with the family.
October 2012, the Division filed another complaint for care
and supervision of S.D., and sought the issuance of
restraints against J.G. The court ordered the Division to
take custody of S.D. Due to her drug use, A.W. stipulated to
abuse or neglect of S.D. In November 2012, the Division again
placed S.D. with K.A. and R.A., and the Division informed
P.D. of the child's placement.
Division considered P.D. as a possible placement for the
child, but it had difficulty assessing P.D. and his living
situation because he was living in Cape Verde. The Division
referred the matter for an international home study, which
was completed in November 2013. The Division found the report
inadequate because it did not address concerns it had
regarding P.D.'s criminal history. The report did not
recommend S.D.'s placement with P.D.
and 2013, the Division considered placing the child with
P.D.'s relatives in Massachusetts. The Division ruled out
these placements because it believed it was in the
child's best interests to remain in her current resource
home. In addition, one of the paternal relatives did not have
the resources to care for the child.
January 2014, the trial court approved the Division's
permanency plan for termination of P.D. and A.W.'s
parental rights followed by adoption. In March 2014, the
Division filed its complaint for guardianship of S.D., and
the court entered an order terminating the abuse or neglect
proceedings, again without any findings concerning P.D. In
December 2 014, A.W. made an identified surrender of her
parental rights to K.A. and R.A.
2015, the Family Part judge conducted a trial on the
Division's complaint. At the trial, the Division
presented testimony from its caseworker Priscilla Ortiz and
Dr. Elayne Weitz, who was qualified as an expert in the field
was in Cape Verde at the time of the trial and he did not
participate in the first day of trial. On the second day
of the trial, P.D. participated by phone and provided sworn
testimony. He opposed the termination of his parental rights.
He testified that he wanted S.D. sent to Cape Verde to live
with him until she reached high-school age.
22, 2015, the judge filed a written opinion in which he found
that the Division had established by clear and convincing
evidence all of the criteria for termination of P.D.'s
parental rights in N.J.S.A. 30:4C-15.1(a). The judge
determined that P.D. had harmed S.D. because he had been
absent during most of S.D.'s life, and he failed to take
any steps to assume a parental role for the child.
opinion, the judge noted that after 2008, P.D. failed to
maintain contact with S.D., and he lacked knowledge of
essential facts about her, including her current grade in
school. The judge also noted that P.D. did not appear by
phone for the first day of trial, and he did not acknowledge
the child's psychological needs.
judge also observed that P.D. had not complied with any of
the recommendations that the Division made "to remedy
the fact that he is a virtual stranger to his child."
The judge rejected P.D.'s claim that S.D. should be sent
to live with him in Cape Verde. The judge wrote that
"[t]o remove the child from her current placement and
move her to another country to live with a virtual stranger
would cause severe and enduring harm."
addition, the judge found that P.D. was unwilling or unable
to eliminate the harm facing S.D. because he had not
maintained contact with his daughter since 2008. P.D. also
had no long-term plan for the child, since he intended to
raise her only until she reached high-school age. Finally,
the judge relied upon Dr. Weitz's testimony to conclude
that separating S.D. from her resource parent would cause her
serious and enduring emotional and psychological harm, which
P.D. would not be able to ameliorate.
judge memorialized his decision in an order dated July 22,
2015, terminating P.D.'s parental rights. Thereafter,
P.D. filed a notice of appeal from the court's July 22,
2015 order. He also filed a motion for leave to file an
appeal as within time from certain orders entered by the
trial court in the abuse or neglect proceedings, and a motion
to consolidate that appeal with this case. We denied the
denied P.D.'s motion to supplement the record on appeal
in the guardianship case with transcripts of the abuse or
neglect proceedings. P.D. filed a petition for certification,
seeking review by the Supreme Court of our rulings on these
motions. The Court denied the petition. Div. of Child
Prot. & Perm, v. P.P., 227 N.J. 248 (2015).
first consider P.D.'s argument, raised for the first time
on appeal, that the guardianship judgment should be vacated
because the Division and the trial court failed to provide
notice of the 2012 abuse or neglect proceedings to the Cape
Verde consulate, which P.D. argues was required by the VCCR.
He also contends he was denied due process of law because he
had no legal representation in the 2012 ...