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NOT FOR PUBLICATION WITHOUT THE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-0780-15T4
A-0067-16T4
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
J.S.,
Defendant,
and
R.W.,
Defendant-Appellant.
__________________________________
IN THE MATTER OF M.W.,
Minor.
__________________________________
Argued September 25, 2017 – Decided October 16, 2017
Before Judges Sabatino, Whipple, and Rose.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Cape May
County, Docket Nos. FN-05-0035-15 and FG-05-
0003-16.
Clara S. Licata, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Ms. Licata, on the
briefs).
Jennifer Russo-Belles, Deputy Attorney
General argued the cause for respondent
(Christopher S. Porrino, Attorney General,
attorney; Melissa H. Raksa, Assistant Attorney
General, of counsel; Ms. Russo-Belles, on the
brief).
Melissa R. Vance, Assistant Deputy Public
Defender argued the cause for minor (Joseph
E. Krakora, Public Defender, Law Guardian,
attorney; Ms. Vance, of counsel and on the
brief).
PER CURIAM
In these consolidated appeals, defendant R.W. (Robert1)
appeals from a July 15, 2015 permanency order terminating him from
an FN litigation.2 Robert also appeals from a June 28, 2016 order
denying his motion to vacate a separate order terminating
1
All names used herein are pseudonyms for ease of reference, and
to protect the confidentiality of the parties and their child.
2
There are eleven separate and distinct docket types in the
Family Part, each pertaining to a different aspect of family life
that requires action. The FN docket contains cases where the
Division of Child Protection and Permanency (the Division) has
filed a complaint to assume care, custody, or supervision of a
child to protect him or her from harm. The FG docket involves
cases where the Division has filed a complaint to terminate
parental rights and assume guardianship. The FD, or non-
dissolution docket, involves cases concerning non-divorce family
relationships where custody, visitation, parenting, child support,
and paternity are addressed.
2 A-0780-15T4
litigation under the FG docket, and to intervene in the same FG
litigation. For the reasons that follow, we affirm.
Our review of the record reveals the following relevant
history. Robert and J.S. (Jenny) were involved in a long-term and
sometimes tumultuous relationship, which involved periods of
estrangement, an engagement, drug and alcohol abuse, and incidents
of domestic violence. M.W. (Maggie) was born in March 2013, and
although both Jenny and Robert expressed doubts about whether
Robert was Maggie's biological father, he was listed on her birth
certificate. Thereafter, he accepted the role of father and the
three functioned as a family unit until she was removed from their
care and placed into Division custody.
On July 25, 2014, the Division received a referral regarding
a July 16, 2014 incident where Maggie had been present while Jenny
and Robert were partying with neighbors, and drugs and alcohol
were being used. At some point during the evening, Jenny and
Robert became involved in a physical and verbal altercation. From
approximately 10:45 p.m. to 1:35 a.m., Robert locked himself in
their apartment with Maggie, not allowing police to enter. He was
eventually persuaded to leave the apartment and release Maggie,
and was arrested and charged with child endangerment, kidnapping,
simple assault, terroristic threats, and assault on a police
officer.
3 A-0780-15T4
On July 24, 2014, Jenny secured a restraining order against
Robert, which prohibited contact with her and Maggie and ordered
inpatient counseling. On August 21, 2014, the restraining order
was amended to allow Robert supervised visits with Maggie.
On September 18, 2014, the Division received a report that
stated Robert was arrested for violating the restraining order by
having unsupervised contact with both Maggie and Jenny. The
Division later learned Jenny had ceased taking her medication and
had a breakdown. The police transported her to the hospital, and
she was kept overnight and released.
On September 24, 2014, the Division executed an emergency
removal, and Maggie was placed with her maternal grandmother. On
September 26, 2014, the Division filed a verified complaint for
custody under the FN docket. At the hearing, the Family Part
judge determined removal was necessary because of the ongoing
substance abuse and domestic violence allegations involving Jenny
and Robert.
During a hearing on October 8, 2014, the court ordered, among
other things, Robert to undergo paternity testing. On January 7,
2015, Robert and Jenny stipulated to being a family in need of
services under N.J.S.A. 30:4C-12. At that time, Robert was still
facing criminal charges from the July 16, 2014 incident, and Jenny
intermittently resided in substance abuse treatment centers,
4 A-0780-15T4
domestic violence shelters, and with other family members. The
court continued Division custody of Maggie, granted supervised
visitation rights for both Jenny and Robert, imposed random drug
testing, substance abuse treatment, and domestic violence
counseling for both Jenny and Robert, and required psychiatric
evaluations for Jenny.
From October 2014 through April 2015, Robert attended weekly
one-hour-long visitations with Maggie but in May 2015 was
incarcerated for the child endangerment charges.3 Jenny and Robert
had separate visitation schedules with Maggie. The Division
reported Robert's visits were generally positive.
On July 15, 2015, the parties attended a permanency hearing.
The Division reported the paternity test ruled out Robert as
Maggie's biological father. The Division, without objection from
Jenny and the Law Guardian, moved for Robert to be dismissed from
the FN litigation based on the results of the paternity test.
Robert objected, arguing for a bonding evaluation. The court
declined to dismiss Robert as a party at that time but denied
Robert a bonding evaluation, declined to order visitation, and
accepted the Division's plan for termination of Jenny's parental
rights followed by relative adoption concurrent to reunification
3
The other criminal charges were apparently dismissed.
5 A-0780-15T4
with Jenny. The judge offered to consider any legal arguments
submitted by the parties pertaining to whether Robert should remain
in the litigation as a parent. Despite the judge's invitation,
there is no indication in the record that any party submitted
legal memoranda concerning Robert's legal status as a parent.
On August 26, 2015, the Division renewed its request that
Robert should be dismissed from the litigation. Robert argued the
FN litigation should not be dismissed, and if it were, he asked
that he be named in the guardianship proceeding under the FG
docket. Further, he asserted he was entitled to weekly visits
with Maggie following his release from incarceration, and he sought
a stay on any interruptions to his visitation rights.
The judge acknowledged the Division guardianship complaint,
in the FG docket, would exclude Robert, thus it effectively
dismissed him from the litigation, stating Robert had "always held
himself out to be [Maggie's] father, and . . . acted as her father"
but "there has been domestic violence between him and [Jenny]."
The judge then stated, "[Robert's] devotion to the child has been
a constant throughout the case" but, under Title 9,
there's a broad definition, and maybe not of
parent, but who gets to stay in the case and
who’s out of the case . . . [but in] a
termination of parental rights case, it's a
very narrow definition, and specifically,
. . . New Jersey Division of Youth and Family
6 A-0780-15T4
Services v. J.C.,[4] and the Appellate Division
has indicated that the definition of a parent
is construed narrowly, to mean only a
biological or adoptive parent, and does not
include an individual who has been in the
position of a parent.
The court terminated the FN litigation, Robert's court
appointed lawyer was relieved, and the court reconvened almost
immediately under the FG docket. Thereafter, the Office of
Parental Representation appointed new counsel for Robert and
prepared a motion for leave to intervene in the guardianship
proceeding.
On October 9, 2015, Robert filed an appeal of the permanency
order and the order terminating the FN litigation. On April 5,
2016, we stayed the appeal to allow Robert to move to intervene
at the trial level in the FG proceeding. However, earlier, on
November 18, 2015, the Family Part had entered a Guardianship
Multipurpose Order acknowledging V.R. (Vincent) as Maggie's
biological father.
On February 5, 2016, Robert underwent an evaluation with Dr.
Jesse Whitehead, Jr., Psy.D.5 Dr. Whitehead assessed Robert's
parenting and caretaking capabilities, and whether he met the
criteria necessary to qualify as a psychological parent. At this
4
346 N.J. Super. 277 (App. Div. 2002).
5
Neither Maggie nor Jenny participated in the evaluation.
7 A-0780-15T4
evaluation, Robert gave a detailed description of his
relationships with Jenny and Maggie. He was present at her birth,
tended to her when she was sick, she called him "Da," and he has
been the only father present from her birth until her removal from
Jenny. Dr. Whitehead opined Robert was physically,
psychologically, and financially capable of parenting, and that
he had satisfied the criteria of being a psychological parent.
On March 23, 2016, Vincent appeared at an FG case management
hearing. The Division represented it had no child protection
concerns about Vincent and that Vincent was amenable to a joint
custody arrangement, with the maternal grandmother currently
caring for Maggie, in order not to disrupt her life. The Division
no longer wished to pursue guardianship. On April 6, 2016, the
guardianship litigation was terminated, and custody of Maggie was
transferred to her maternal grandmother jointly with Vincent, with
the filing of an order under the non-dissolution FD docket. Robert
had not yet moved to intervene.
On April 25, 2016, Robert moved to vacate the dismissal of
the guardianship litigation so that he would be able to intervene
there. On June 28, 2016, the court heard argument and denied the
motion, concluding "the application is moot because there's no FG
litigation pending and Robert had an adequate avenue to seek his
remedy in the FD docket."
8 A-0780-15T4
On August 18, 2016, the court issued an order denying the
motion for the reasons placed on the record on June 28, 2016, from
which Robert appealed. We granted his subsequent motion to
consolidate the two appeals.
In our review, we note our usual deference to the special
expertise of the family court, New Jersey Division of Youth and
Family Services v. E.P., 196 N.J. 88, 104 (2008), is inapplicable
because the issues before us involve "[a] trial court's
interpretation of the law and the legal consequences that flow
from established facts[.]" Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995). We owe no deference to a
trial court when it makes such determinations. Ibid.
Robert argues he was Maggie's legal father, and therefore it
was an error for the trial court to dismiss him from the litigation
without an order establishing parentage. He argues he meets the
definition of a presumptively biological parent under Rule 9:17-
43(a)(4)-(5), because he acted as Maggie's father, held her out
as his daughter, and was on her birth certificate. He further
argues these presumptions can only be rebutted in a parentage
action by clear and convincing evidence with a court order
terminating his paternal rights or establishing those of another
man. We agree Robert may assert those arguments but he may not
9 A-0780-15T4
pursue such a remedy under either the FN or FG dockets in the
discrete context of this matter.
It is important to note Robert acknowledges Vincent is the
biological father, and is not seeking custody. Instead, Robert
asserts he is the psychological parent of Maggie, and requests the
right to continue to visit and remain part of her life. It is for
this reason that the proper forum to address his request is not
to re-open either Division litigation, but for Robert to seek
intervention in the FD docket if he chooses to do so.
The purpose of the FN docket is to ensure the protection of
the child, and "[i]n any case in which family reunification is not
the permanency plan for the child, reasonable efforts shall be
made to place the child in a timely manner and to complete the
steps necessary to finalize the permanent placement of the child."
N.J.S.A. 9:6-8.8. As reunification and parental custody is not
Robert's goal, the FN docket holds no remedy for him because it
does not adjudicate matters of custody between parents when the
Division no longer has concerns about the child's safety. In the
same vein, the FG docket also holds no remedy for him as it
involves the termination of parental rights for the limited purpose
of freeing a child for the goal of adoption.
Even if reunification and parental custody were Robert's
goal, he bears the high burden of demonstrating he should be
10 A-0780-15T4
awarded custody over a fit parent. In Faucett v. Vasquez, 411
N.J. Super. 108, 119 (App. Div. 2009), we said, "a legal parent
has a fundamental right to the care, custody and nurturance of his
or her child." V.C. v. M.J.B., 163 N.J. 200, 218, cert. denied,
531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). N.J.S.A.
9:2-4 specifically provides that "[i]n any proceeding involving
the custody of a minor child, the rights of both parents shall be
equal[.]"
Thus, "when the dispute is between a fit parent and a third
party, only the fit parent is presumed to be entitled to custody,"
and "only a showing of unfitness, abandonment, gross misconduct,
or exceptional circumstances will overcome this presumption."
Faucett, supra, 411 N.J. Super. at 119-20 (citations omitted).
Consequently, "the best interest of the child cannot validly ground
an award of custody to a third party over the objection of a fit
parent" without rebutting this presumption through "an initial
court finding that the standard for termination of the rights of
a non-consenting parent" or a "finding of exceptional
circumstances[,] such as the third party ha[ving] become a
psychological parent to the child." Id. at 120 (quoting Watkins,
163 N.J. 235, 255 (2000)).
Furthermore, even if Robert were to prevail in establishing
status as a psychological parent and create a finding of those
11 A-0780-15T4
exceptional circumstances, neither an FN order nor an FG order
would provide him prospective enforceable relief because of the
confidential and limited nature of such orders.
Here, the biological parents, at least one of whom was fit,
consented to leave custody of Maggie with her grandmother under
an arrangement in the FD docket. Roberts's assertion of the right
to continue a relationship with Maggie is no longer a dispute with
the Division, and as the Family Part judge correctly noted, may
only be addressed with those parties through intervention in the
FD docket.
Robert also argues he had ineffective representation because
his lawyer did not make a formal motion to the Family Part to
engage an expert to document Robert's status as a psychological
parent, did not submit a legal memorandum discussing Robert's
legal status as a parent and his standing to participate in the
FG litigation, and did not ask Robert for evidence of the bond
between him and Maggie. We do not address whether the actions of
Robert's trial counsel were deficient because Robert has not
established that but for his counsel's insufficient performance,
the outcome would have been different. The New Jersey Supreme
Court in New Jersey Division of Youth & Family Services v. B.R.,
192 N.J. 301, 306 (2007), held a parent's right to counsel is
grounded in both the constitution and the statutory framework for
12 A-0780-15T4
termination cases and that counsel must be effective. Therefore,
in termination cases, to determine whether counsel was
ineffective, the test developed in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted
by the Court in State v. Fritz, 105 N.J. 42, 58 (1987), is applied.
B.R., supra, 192 N.J. at 307. Even if Robert's lawyer had
submitted timely legal arguments in the FG docket in support of
his status as a legal or psychological parent, the result would
not have been different but for his trial counsel's performance.
Because the FG litigation was dismissed against all parties, it
is moot, and Robert is not without recourse but instead is able
to pursue relief under the FD docket.
Robert argues he will be prejudiced by being forced to file
under the FD docket because he will lose the benefit of Public
Defender counsel and funding. It is true that "temporary loss or
permanent termination of an indigent parent's rights to his or her
child in a judicial proceeding is a consequence of magnitude
requiring the assignment of counsel." Pasqua v. Council, 186 N.J.
127, 148 (2006) (citing Crist v. N.J. Div. of Youth & Family
Servs., 135 N.J. Super. 573, 575 (App. Div. 1975)). However, this
constitutional guarantee is necessary due to the drastic and
permanent nature of the loss in a parental termination proceeding.
B.R., supra, 192 N.J. at 301. Here, the loss to Robert is not of
13 A-0780-15T4
the same nature, and the situation here is not of the same
magnitude. He does not seek custody of Maggie, but rather
visitation rights, and neither he nor the other parties are
entitled to state-funded counsel for that narrow litigative
purpose. In such an application, Robert is free to tender Dr.
Whitehead's report, and any opposing parties are free to argue it
is inadmissible or inconsequential, or to present evidence from a
different expert.
Any additional arguments introduced by Robert are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
14 A-0780-15T4