NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
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.
March 11, 2019
appeal from Superior Court of New Jersey, Chancery Division,
Family Part, Hudson County, Docket No. FG-09-0206-18.
R. Burroughs, Designated Counsel, argued the cause for
appellant M.M. (Joseph E. Krakora, Public Defender, attorney;
Andrew R. Burroughs, on the briefs).
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).
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).
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).
Judges Sabatino, Sumners and Mitterhoff.
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.
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.
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
the record in this case is extensive, we need not detail it
exhaustively here. We summarize only the salient facts
pertinent to our discussion.
("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.
was placed in the custody of his father, D.B. The court
dismissed Xander from this litigation in January 2017.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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
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
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
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.
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.
(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
(4) Termination of parental rights will not do more harm than
[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
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.
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,
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).
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.
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.]
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).
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).
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. 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.