DCPP VS. K.M. AND R.A. IN THE MATTER OF THE GUARDIANSHIP OF J.M. (FG-09-101-16, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-5108-15T4

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

K.M.,

Defendant,

and

R.A.,

Defendant-Appellant.
__________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF J.M.,

A Minor.
___________________________________

Submitted May 30, 2017 – Decided June 7, 2017

Before Judges Haas and Currier.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-101-16.
 Joseph E. Krakora, Public Defender, attorney
for appellant (Mark E. Kleiman, Designated
Counsel, on the briefs).

Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel;
Alexandra N. Vadala, Deputy Attorney General,
on the brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Charles
Ouslander, Designated Counsel, on the brief).

PER CURIAM

Defendant R.A.1 appeals from the Family Part's July 7, 2016

judgment of guardianship terminating his parental rights to his

son J.M. ("John"), born in April 2014.2 Defendant contends that

the Division of Child Protection and Permanency ("Division")

failed to prove each prong of N.J.S.A. 30:4C-15.1(a) by clear and

convincing evidence. The Law Guardian supports the termination

on appeal as it did before the trial court.

Based on our review of the record and applicable law, we are

satisfied that the evidence in favor of the guardianship petition

overwhelmingly supports the decision to terminate defendant's

parental rights. Accordingly, we affirm substantially for the

1
We refer to the adult parties by initials, and to the child by
a fictitious name, to protect their privacy.
2
The July 7, 2016 order also terminated the parental rights of
K.M., who is John's birth mother. However, K.M. has not filed a
notice of appeal concerning the order.

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reasons set forth in Judge Anthony D'Elia's comprehensive oral

decision rendered on July 7, 2016.

Because the procedural history and facts are outlined in

detail in Judge D'Elia's thorough decision, a summary will suffice

here. After John was born, the hospital called the Division to

report that K.M. had tested positive for cocaine and marijuana and

that Jack had to be transferred to a specialty hospital because

he had also tested positive for cocaine and was suffering from

respiratory problems. The Division took custody of John when he

was cleared to leave the hospital and placed him in a resource

home.

K.M. identified defendant as John's father. Defendant was

in jail when the Division took custody of the child. Defendant

denied that he was John's father, and the Division asked him to

undergo a paternity test. Defendant refused. However, in March

2015, the Division was able to confirm that R.A. was the child's

father because it had his DNA on file as a result of its previous

involvement with other children defendant had fathered.

Defendant was released from custody in April 2015. After

getting out of jail, defendant refused to stay in contact with the

Division. He was incarcerated again in August 2015, and remained

in jail until December 2015. Up until this latest period of

incarceration, defendant had told the Division that he did not

3 A-5108-15T4
want anything to do with John. However, in September 2015, he

indicated he would like to see his son. Therefore, the Division

arranged for defendant to have supervised visits with John at the

jail. Thereafter, the only contact defendant had with John was

during periods when he was incarcerated and the Division brought

John to the jail to see defendant.3

Whenever defendant was released from jail, he simply

disappeared from his child's life. Although the Division attempted

to arrange for substance abuse services for defendant, he failed

to comply. Defendant also refused to participate in a

psychological and bonding evaluation concerning his child. When

defendant was incarcerated again in April 2016, he told a Division

caseworker that "he wanted to play a little bit and celebrate

before doing what I have to do to get my kids." Defendant also

stated that he looked forward to his release because he "wanted

to use drugs and party" before contacting the Division again.

By this time, the Division had placed John with his paternal

uncle, who wished to adopt him. After conducting a bonding

analysis, Dr. Frank Dyer, who was qualified at trial as an expert

in psychology, testified on behalf of the Division that John's

3
All told, defendant visited with John on approximately eight
occasions during the period between the child's birth in April
2014 and the conclusion of the termination trial in July 2016.

4 A-5108-15T4
uncle was having a positive impact on the child and, in a few

short months, had already formed an attachment with John "that

could easily blossom into a degree of attachment where the uncle

becomes his central attachment figure." Although defendant

refused to submit to a bonding evaluation, Dr. Dyer opined in

response to a hypothetical question that it would be "impossible

for the child to develop anything approximating an attachment" to

a parent, like defendant, who had only seen the child approximately

eight times over a period of two years.

Defendant did not testify at trial and called no witnesses.

In his oral opinion, Judge D'Elia reviewed the evidence

presented, including the uncontradicted expert testimony, and

thereafter concluded that (1) the Division had proven all four

prongs of the best interests test by clear and convincing evidence,

N.J.S.A. 30:4C-15.1(a); and (2) termination of defendant's

parental rights was in John's best interests. In this appeal, our

review of the trial judge's decision is limited. We defer to his

expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394,

413 (1998), and we are bound by his factual findings so long as

they are supported 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)).

5 A-5108-15T4
 After reviewing the record, we conclude that Judge D'Elia's

factual findings are fully supported by the record and, in light

of those facts, his legal conclusions are unassailable. We

therefore affirm substantially for the reasons that the judge

expressed in his well-reasoned opinion.

Affirmed.

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