DCPP VS. C.R. AND A v. SR. IN THE MATTER OF A v. JR. (FN-18-0130-15, SOMERSET COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
A-5537-14T2
| N.J. Super. Ct. App. Div. | Jul 31, 2017|
Check Treatment 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NOT FOR PUBLICATION WITHOUT THE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-5537-14T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
C.R.,
Defendant,
and
A.V., SR.,
Defendant-Appellant.
IN THE MATTER OF
A.V., JR., Minor
___________________________________
Submitted February 1, 2017 – Decided July 31, 2017
Before Judges Fuentes and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Somerset County, Docket No. FN-18-0130-15.
Law Offices of Randall J. Peach, attorney for
appellant (Randall J. Peach, of counsel and
on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Sandra
Ostwald, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Lisa M. Black,
Designated Counsel, on the brief).
PER CURIAM
Defendant A.V., Sr. is the biological father of A.V., Jr., a
boy who is now nine years old. Defendant and the child's
biological mother, C.R., have been engaged in a hotly contested
private action in the Family Part concerning their son's custody
and parenting time. The record shows A.V., Jr. may suffer from
severe psychological problems.
On October 6, 2014, the Division of Child Protection and
Permanency (the Division) received an anonymous referral alleging
that text messages on defendant's cellular phone suggested illicit
drug activity. The caller claimed that then six-year-old A.V.,
Jr., who was hospitalized at Summit Oaks Hospital's inpatient
psychiatric unit, had found his father's phone and turned it over
to his mother. A Division caseworker met with defendant on October
13, 2014 to investigate these allegations. Defendant denied any
involvement with illicit drugs. When the caseworker asked
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defendant if he was willing to submit a urine sample for analysis,
defendant stated he wanted to consult with his attorney first.
On October 28, 2014, a Division caseworker met with C.R., who
provided photographs depicting the contents of defendant's text
messages. The messages contained numerous references to recent
illicit drug transactions, some of which allegedly occurred while
A.V., Jr. was in defendant's custody. Armed with this information,
the Division filed a verified complaint and an order to show cause
(OTSC) in the Family Part. The Division sought an order compelling
defendant to: (1) undergo a substance abuse evaluation; (2) submit
to the extraction of a hair follicle for testing; and (3) submit
random urine samples for drug screening, "with a refusal to do so
being considered a positive."
On the return date of the OTSC, the Family Part granted the
Division's request for an investigation. Although defendant was
present, he was not represented by counsel. The court granted the
Division's request to obtain "the hair follicle kit[,]" but denied
its application to use it immediately. When the judge asked
defendant if he denied sending text messages containing references
to alleged drug transactions, defendant responded as follows: I
don't believe anybody has a right . . . to go through my cell
phone. They knew it was missing. They all knew it was missing.
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The hospital knows it was missing. I reported it missing right
away."
On January 16, 2015, defendant, this time represented by
counsel, filed a motion on short notice seeking to dismiss the
Division's verified complaint and OTSC. The Law Guardian supported
the Division's application to test defendant to determine whether
he was using illicit substances. On March 30, 2015, the Family
Part denied defendant's motion to dismiss, holding the Division
had authority to conduct the investigation under Title 30.1 The
court ordered defendant to attend a substance abuse evaluation,
to submit to random urine screening, and to submit to the
extraction of a hair follicle. The court granted defendant's
motion to stay the order's execution until April 10, 2015.
On April 9, 2015, we denied defendant's emergent application
to file a motion for leave to appeal. On April 28, 2015, the
Division moved to withdraw the verified complaint and OTSC. As
the Deputy Attorney General explained on behalf of the Division:
[A]t this point the requested reliefs are
moot. There are other concerns.
1
The Division has authority to initiate Title 30 proceedings "when
it 'appear[s]' that a child's parent or lawful guardian is 'unfit'
or has failed 'to ensure the health and safety of the child, or
is endangering the welfare of such child[.]'" N.E. v. State Dep't
of Children & Families, 449 N.J. Super. 379, 400 (App. Div. 2017) (quoting N.J. Div. of Youth and Family Servs. v. I.S.,214 N.J. 8
, 34, cert. denied, ___ U.S. ___,134 S. Ct. 529
,187 L. Ed. 2d 380
(2013)); see N.J.S.A. 30:4C-12.
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Specifically, this morning it was brought to
my attention that [defendant] is not
consenting to the medication that was
recommended by Summit Oaks for the child.
There are concerns that the child is still
having behavioral issues.
These were concerns that were present prior
to the Division's involvement that were raised
and addressed under the FD docket.
The Division would assume that if this
litigation is dismissed and the order is
withdrawn that they would continue to address
these issues under the FD docket.
. . . .
THE COURT: [Defense counsel], you have no
objection?
DEFENSE COUNSEL: I have no objection.
. . . .
[W]e, obviously, agree with the Division that
the complaint should be dismissed.
THE COURT: All right. I am going to grant the
Division's request and dismiss the litigation.
Against this record, defendant appeals the Family Part's
April 28, 2015 order dismissing the litigation against him.
Defendant argues the Family Part did not "set forth its findings
and the reasons for its ruling[.]" Defendant's arguments lack
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E). It is a well-settled principle of appellate
jurisdiction that "if the order of the lower tribunal is valid,
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the fact that it was predicated upon an incorrect basis will not
stand in the way of its affirmance." Isko v. Planning Bd. of
Livingston, 51 N.J. 162, 175 (1968) (citations omitted). Stated differently, "appeals are taken from judgments and not from opinions[.]" State ex rel. J.A.,195 N.J. 324
, 354 n.2 (2008) (quoting Glaser v. Downes,126 N.J. Super. 10
, 16 (App. Div.
1973)). Defendant cannot appeal an order granting the relief he
argued for and ultimately obtained.
Appeal dismissed.
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