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New Jersey Division of Child Protection and Permanency v. P.D.

Superior Court of New Jersey, Appellate Division

October 20, 2017

P.D., Defendant-Appellant, and A.W., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF S.D., Minor.

          Argued September 19, 2017

         On 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).

          Noel 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).

          Before Judges Yannotti, Leone and Mawla.


          YANNOTTI, P.J.A.D.

         P.D. appeals from a judgment entered by the Family Part on July 22, 2015, which terminated his parental rights to the minor child S.D.[1] 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.


         We 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.

         On 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.[2] 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 husband, R.A.

         At his 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.

         In 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.

         P.D. 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.

         In 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.

         Several 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.

         In 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.

         The 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.

         In 2012 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.

         In 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.[3]

         In June 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 of psychology.

         P.D. was in Cape Verde at the time of the trial and he did not participate in the first day of trial.[4] 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.

         On July 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.

         In his 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.

         The 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."

         In 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.

         The 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 motions.

         We also 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).


         We 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 ...

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