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New Jersey Division of Child Protection and Permanency v. M.M.

Superior Court of New Jersey, Appellate Division

June 19, 2019

M.M. and V.B., Defendants-Appellants, and E.N., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF K.M.N., Z.B., ZA.B., L.B., ZAR.B., and Z.U.B., Minors.

          Argued March 11, 2019

          On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-0206-18.

          Andrew R. Burroughs, Designated Counsel, argued the cause for appellant M.M. (Joseph E. Krakora, Public Defender, attorney; Andrew R. Burroughs, on the briefs).

          James D. O'Kelly, Designated Counsel, argued the cause for appellant V.B. (Joseph E. Krakora, Public Defender, attorney; James D. O'Kelly, on the briefs).

          Peter D. Alvino, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Jason W. Rockwell, Assistant Attorney General, of counsel; Sara M. Gregory, Deputy Attorney General, on the brief).

          Nancy P. Fratz, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Nancy P. Fratz, on the brief).

          Before Judges Sabatino, Sumners and Mitterhoff.


          SABATINO, P.J.A.D.

         In these consolidated appeals, the mother and father of several children seek reversal of the trial court's decision terminating their parental rights after a four-day guardianship trial. The children were removed from the parents because of allegations of abuse or neglect. Three of the children in question presently live with their maternal grandmother and the other three children have been placed with a maternal great aunt.

         The court-approved plan of the Division of Child Protection and Permanency ("the Division") is for the maternal grandmother to adopt the three children who are in her care, and for the maternal great aunt to likewise adopt the other three children. The Law Guardian for the children supports that plan, and joins with the Division in urging that we affirm the trial court's decision.

         For the reasons that follow, we affirm the trial court's determination that the Division met its burden of proof at trial with respect to the first two prongs of the termination statute, N.J.S.A. 30:4C-15.1(a), as to both parents. However, we remand this case with respect to prongs three and four of the statute specifically to: (1) develop the trial record with more clarity as to whether each resource parent unequivocally, unambiguously, and unconditionally wishes to adopt the children in her care, regardless of the potential alternative of Kinship Legal Guardianship ("KLG"); and (2) obtain explicit findings by the trial court addressing KLG as it relates to the feasibility of adoption and the unequivocal consent of the resource parents to adoption. In all other respects, we uphold the trial court's otherwise well-founded and well-reasoned decision.


         Although the record in this case is extensive, we need not detail it exhaustively here. We summarize only the salient facts pertinent to our discussion.

         Defendant M.M.[1] ("the mother") is the biological mother of seven children: X.M. ("Xander"), born in October 2008; K.M.N. ("Kevin"), born in October 2009; Z.B. ("Zarah"), born in September 2011; Za.B. ("Zena"), born in August 2013; L.B. ("Larry"), born in April 2015; Zar.B. ("Zadie"), born in July 2016; and Z.U.B. ("Zelda"), born in September 2017.

         Xander was placed in the custody of his father, D.B. The court dismissed Xander from this litigation in January 2017.

         Defendant E.N. is the father of Kevin. The trial court terminated E.N.'s parental rights after the guardianship trial, which he did not attend. E.N. has not appealed the court's decision respecting him and Kevin.

         Defendant V.B. ("the father") is the husband of the mother. He is the father of the mother's youngest five children, i.e., Zarah, Zena, Larry, Zadie, and Zelda.

         As of the time of the guardianship trial in 2018, the Division had been involved with the mother and her children for about eight years, and with the father for approximately six years. The Division initially removed Xander and Kevin from the mother's care in February 2010 after receiving reports that she left Kevin on his paternal relatives' porch unattended. Those two sons were temporarily returned to the mother's custody in October 2015. Meanwhile, Zarah, Zena, and Larry were born, and defendants married.

         In December 2015, the Division learned that Larry, who was then about seven months old, had fallen off a bed and was burned by a radiator while in the father's care. The incident was investigated and established as to the father's neglect, but the Division did not remove the children at that time.

         In July 2016, the Division removed all of the children from defendants' care because the mother had tested positive for marijuana upon Zadie's birth, and because caseworker interviews with the children had raised concerns about physical abuse. Kevin and Larry were placed with the maternal grandmother. Zarah, Zena, and Zadie were placed with the maternal great aunt.

         The Division filed a complaint of guardianship in the Family Part in September 2017. That same month the youngest child, Zelda, was born. The Division removed Zelda from defendants' care and placed her with the maternal grandmother, adding Zelda to its amended guardianship complaint.

         The evidence at the four-day trial reflected that defendants have struggled to be capable as parents. The evidence is replete with repeated marijuana use by both parents, an inability of the parents to provide their own stable home, unemployment, and indicia of failures to supervise the children, including the radiator incident in which Larry sustained second-degree burns. Both parents have psychological difficulties, for which they have received some counseling.

         The Division made numerous attempts over the years to provide the parents with services and to reunify them with their children. The Division's key testifying witness at trial, Karen D. Wells, Psy.D., initially in 2011 had "cautiously supported" the gradual reunification of the children with the mother. Dr. Wells later issued an expert report in 2013, again recommending a path towards reunification. However, as time passed, Dr. Wells changed her opinion and ultimately concluded that the children are better off if they are kept with and adopted by their respective resource parents.

         The father presented testimony from a psychiatrist, Barry A. Katz, Ph.D., to rebut the expert opinions of Dr. Wells. After performing bonding evaluations of the children and a psychological evaluation of the father, Dr. Katz concluded that it would do more harm than good to sever the father's parental rights. He predicted that such a termination would place the children at risk for conduct and emotional problems, and difficulties at school. Dr. Katz recommended an additional four-to-six month period to reassess the circumstances.

         The record at trial showed the Division has provided substantial services to both parents. Among other things, those services included substance abuse treatment, domestic violence and anger-management counseling, homemaker services, temporary rental assistance, and other programs. In addition, up through the time of trial, the Division supported visitation between the parents and the children residing with the resource parents. The mother in particular visited frequently with the children, with the acquiescence of her own mother and the children's maternal great aunt. The father likewise had contact with the children during the litigation, albeit seemingly with less frequency.

         Although there have been lapses, both parents have substantially taken advantage of the services provided to them. Nevertheless, the mother continued to smoke marijuana and repeatedly tested positive for such drug use up through at least February 2017. The mother contends that there is no proof that she has ever harmed or neglected the children when she was under the influence of marijuana or any other drug. The father, meanwhile, has had repeated relapses, although he tested negatively for marijuana for approximately a year before the trial.

         As of the time of trial, the parents were both employed. They had an apartment, but one not large enough to accommodate all six children. They were hoping to save money eventually to rent a larger apartment.

         After considering this and much more extensive evidence, the trial judge concluded the Division had proven all four prongs of the termination statute by the level of clear and convincing evidence required by N.J.S.A. 30:4C-15.1(a). In particular, the judge found the expert opinions of the Division's expert, Dr. Wells, more persuasive than those of the competing defense expert, Dr. Katz. The judge found significant the Division's eight years of efforts to try to stabilize the family, and to provide services, all of which were unsuccessful in reunifying the children with their parents.

         The judge noted the close bonds between the maternal grandmother and maternal great aunt and the children in their respective homes, and she found that both resource parents wish to adopt the children presently in their care. The judge found the termination of the parents' rights to enable such adoption consistent with the children's best interests.



         We begin our discussion by acknowledging that the termination of a parent's rights to his or her children raises issues of a constitutional dimension. See, e.g., In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); see also In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992). The Legislature has recognized the importance of this constitutionally protected relationship between a parent and a child by imposing a high burden upon the Division to terminate those rights in a guardianship case. That burden requires the Division to prove, by clear and convincing evidence, the following four prongs under N.J.S.A. 30:4C-15.1(a):

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a); see also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]

         On appeal, the mother challenges the trial court's adverse findings as to all four prongs. The father concedes the sufficiency of the evidence against him as to prong one, but he contests the trial court's analysis as to prongs two, three, and four. Both parents include in their various arguments a contention that the trial court did not sufficiently consider the option of KLG with the resource parents as a possible alternative to adoption.

         In considering these arguments on appeal, we must give substantial deference to the trial judge as the fact-finder who presided over this multi-day guardianship trial. Our scope of review on appeals from orders terminating parental rights is limited. In such cases, the trial court's findings generally should be upheld so long as they are supported by "adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). A decision in such cases should only be reversed or altered on appeal if the trial court's findings were "so wholly unsupportable as to result in a denial of justice." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)).

         We must take into account the trial judge's opportunity to have observed the trial witnesses first hand and to evaluate their credibility. R.G., 217 N.J. at 552. We also must recognize the considerable expertise of the Family Part, which repeatedly adjudicates cases brought by the Division under Title 9 and Title 30 involving the alleged abuse or neglect of children. See, e.g., N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J.Super. 451, 476 (App. Div. 2012).


         Having applied these standards to the record and the trial court's findings in light of the applicable substantive law, we affirm the trial court's decision with respect to prongs one and two of the statute. We do so substantially for the reasons articulated in the trial judge's extensive written decision dated March 29, 2018.

         Although we agree with much of the trial court's analysis with regard to prongs three and four of the statute, we presently are unable to affirm the final judgment as to those prongs. That is because the factual record, which is based upon a series of somewhat inconsistent and conditional hearsay statements, is insufficiently clear with respect to issues concerning adoption and the potential alternative of KLG. Moreover, the trial court did not mention KLG in the course of its written analysis even though it was a facet of the parties' closing arguments. Before we address these thorny adoption and KLG issues, we briefly comment on the other aspects of the case.

[At the direction of the court, Parts II(B)(1) and (2) of this opinion have been omitted from the published version of this opinion. R. 1:36-3.]


         Turning to prong three, we are satisfied that the record readily supports the trial judge's finding that the Division has made "reasonable efforts" to provide appropriate services to both parents. As we have noted, the parents have made use of many of these services, albeit inconsistently at times. We pause, however, with regard to the last clause of prong three set forth in N.J.S.A. 30:4C-15.1(a)(3) regarding the adequacy of the trial court's consideration of "alternatives to termination of parental rights," and defer our discussion on that point to the KLG portion of this opinion in Part II(C).


         Lastly, subject to the KLG caveat, the trial judge provided a reasonable basis for her conclusion on prong four that the termination of both parents' rights will not do the children more harm than good under N.J.S.A. 30:4C-15.1(a)(4). As the finder of fact, the trial judge had the prerogative to evaluate the credibility of the testimony of the competing experts, and to find the opinions of Dr. Wells about the children's best interests more persuasive than those of Dr. Katz. City of Long Branch v. Liu, 203 N.J. 464, 491 (2010) (explaining the fact finder has the role of assessing the credibility and weight to be given to expert testimony); Angel v. Rand Express Lines Inc., 66 N.J.Super. 77, 85-86 (App. Div. 1961) (same).

         The present case concerns a distinctive situation in which both resource parents happen to be close relatives of one parent (the mother's mother and the mother's aunt). The children have enjoyed visits from the parents with considerable frequency.[2] The record also suggests that the children, the resource parents, and defendants at times have spent holidays together and attended religious services. The children have been capably raised by their grandmother and great aunt for many years. They have bonded with them and have been cared for well. Subject to the KLG concerns we will address, infra, the Division's goal of adoption by the resource parents, with the expectation and hope they would continue voluntarily to nurture the children's relationships with their mother and father, appears from the trial proofs to have several advantages.



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