DCPP VS. P.D. AND A.W.IN THE MATTER OF THE GUARDIANSHIP OF S.D.(FG-02-0082-14, BERGEN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
A-5437-14T4
| N.J. Super. Ct. App. Div. | Oct 20, 2017Background
- Child S.D. was removed in 2006 after testing positive for cocaine; mother A.W. admitted neglect; child placed with maternal relatives K.A. and R.A.
- P.D. was confirmed as the biological father, but after criminal convictions (incarcerated 2008) he did not maintain contact; he was deported to Cape Verde in December 2008.
- Division reopened involvement in 2012 after new neglect findings concerning A.W.; S.D. was again placed with K.A./R.A. and Division explored international placement with P.D. (home study inconclusive/not recommended).
- Division filed for guardianship/termination of parental rights in 2014; A.W. surrendered her rights in December 2014; trial on termination as to P.D. occurred June 2015; P.D. testified by phone from Cape Verde.
- Trial judge found by clear and convincing evidence all statutory prongs for termination under N.J.S.A. 30:4C-15.1(a) and terminated P.D.’s parental rights; appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (Division) | Defendant's Argument (P.D.) | Held |
|---|---|---|---|
| Whether failure to notify Cape Verde consulate under VCCR required vacatur | VCCR not triggered because S.D. is a U.S. citizen; no prejudice from any lack of notice | VCCR Article 37 required consular notice for guardianship; lack of consular involvement denied due process | VCCR did not require notice here; even if it did, P.D. showed no prejudice; due process claim rejected |
| Whether P.D. was denied effective assistance of counsel | Counsel’s performance was reasonable; no Strickland prejudice shown | Counsel unfamiliar with VCCR, failed to move to dismiss under statute, and made other errors | Ineffective assistance claim denied; Strickland prongs not met |
| Whether Division proved statutory prongs for TPR by clear and convincing evidence (safety/development; inability/unwillingness; reasonable efforts; harm vs. benefit) | Division presented testimony (caseworker, psychologist) showing abandonment, lack of bond, reasonable efforts, and that termination would not do more harm than good | P.D. argued he never abused/neglected S.D., challenges expert testimony and sufficiency of evidence | Appellate court concluded trial findings were supported by adequate, substantial, credible evidence and affirmed termination |
| Whether procedural defects (timing, missing findings) warranted reversal | Trial record sufficient; any timing dismissal would have been without prejudice | Claimed violations of N.J.S.A. 30:4C-15.2 (final hearing within 3 months) and missing findings | No reversible procedural error; dismissal would have been without prejudice; opinion adequate |
Key Cases Cited
- Sanchez-Llamas v. Oregon, 548 U.S. 331 (U.S. 2006) (discusses VCCR and remedies for Article 36 violations)
- In re Guardianship of K.H.O., 161 N.J. 337 (N.J. 1999) (explains overlap of the four statutory best-interest prongs in TPR cases)
- N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596 (N.J. 2007) (standard of appellate review of Family Part fact findings in TPR appeals)
- In re Guardianship of K.L.F., 129 N.J. 32 (N.J. 1992) (requires clear and convincing proof for termination of parental rights)
- State v. Jang, 359 N.J. Super. 85 (App. Div. 2003) (treats VCCR as a binding multilateral treaty in NJ jurisprudence)