DCPP VS. J.S. AND R.W.IN THE MATTER OF M.W. (FN-05-0035-15 AND FG-05-0003-16, CAPE MAY COUNTY ANDSTATEWIDE)(CONSOLIDATED)(RECORD IMPOUNDED) ( 2017 )


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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    NOT FOR PUBLICATION WITHOUT THE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-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