The opinion
RECORD IMPOUNDED
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-2259-23
A-2260-23
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
E.A. and G.A.,1
Defendants-Appellants.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF K.A.,
a minor.
_________________________
Submitted January 7, 2025 – Decided January 24, 2025
Before Judges Firko and Augostini.
1
We use initials and fictitious names from the briefs in our opinion to protect
the parties' privacy and because records relating to proceedings held under Rule
5:12 are excluded from public access under Rule 1:38-3(d)(12).
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FG-15-0016-22.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant E.A. (Louis W. Skinner, Designated Counsel,
on the briefs).
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant G.A. (Bruce P. Lee, Designated Counsel, on
the briefs).
Matthew J. Platkin, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Mary L. Harpster, Deputy
Attorney General, on the brief).
Jennifer Nicole Sellitti, Public Defender, Law
Guardian, attorney for minor (Meredith Alexis Pollock,
Deputy Public Defender, of counsel; David B. Valentin,
Assistant Deputy Public Defender, of counsel and on
the brief).
PER CURIAM
In these consolidated appeals, defendant E.A. (Erin), the biological
mother of minor K.A. (Kaine), and defendant G.A. (George), the minor's
biological father, seek reversal of the final judgment of guardianship the Family
Part entered on March 7, 2024, in favor of the Division of Child Protection and
Permanency (the Division). The judgment terminated defendants' respective
parental rights after trial. The Law Guardian for the minor joins with the
Division in opposing the appeals.
A-2259-23
2
Erin and George contend the Division failed to prove the four prongs of
the best-interests-of-the-child statutory test set forth in N.J.S.A. 30:4C-15.1(a)
by clear and convincing evidence. After carefully reviewing the record in light
of the parties' arguments and governing legal principles, we affirm substantially
for the reasons set forth in Judge Deborah S. Hanlon-Schron's thorough and
well-reasoned oral opinion. We are not persuaded by Erin's and George's
arguments to the contrary.
I.
Given that the parties are well familiar with the extensive factual and
procedural background of this matter, and the record of the four-day trial, we
need not detail that background in our opinion. The following pertinent facts
and information will suffice. Kaine was born in June 2010. Erin was born in
West Africa and came to the United States in 1990. George was born in Ghana
and came to this country when he was in his late twenties. Erin and George
were married in 2001. They have four children in common, including Kaine,
and a child who regrettably died in 2013. Erin and George each also have
children from other relationships.
On August 27, 2019, the Division received a referral that Kaine and his
minor brother Ezra were living with George, who did not appear capable of
A-2259-23
3
parenting the children on his own. The referent reported the family did not have
running water for a week, and the children "smelled as if they did not shower."
Their home was described as "disgusting" and "looked like filth." Erin was not
regularly at the home and visited approximately twice per week to drop off
groceries.
Division case workers Allison Muso and Lisa Pinsdorf responded to the
referral. The home was observed to have mold, flying insects, a drooping
ceiling, a strong odor, piles of clothing and garbage, the children's mattresses
were dirty with no bedding, missing floorboards in the kitchen, no running
water, and limited food. George was receiving social security payments. Erin
advised the Division that she had no financial means to assist the children and
offered no placement alternatives.
In response, the Division instituted a safety protection plan. George and
Ezra were housed in a hotel and George agreed that Kaine could stay with a
neighbor, S.D. (Sara).2 The Division contacted Erin about addressing the issues
at the home, and she agreed to have it cleaned and repaired. Erin reported she
was going to sign a lease for a condominium and that George, Kaine, and Ezra
2
Sara was willing to allow Kaine to stay in the house but not Ezra because of
his behaviors, such as not understanding boundaries and pushing their then four -
year-old child down.
A-2259-23
4
could move in with her. Erin made some attempts to clean the home but
admitted she did not have a contractor as she previously represented. After
George and Ezra spent three nights at the hotel, their room had a "strong smell"
of body odor and urine, and there was garbage thrown all over.
On September 16, 2019, the Division was granted physical custody of
Kaine and Ezra. Kaine continued to stay with Sara and her husband. The next
day, George admitted he was unable to care for the children because their needs
were significant, and he was "too old at age eighty." Kaine was indifferent about
visiting Erin but wanted to visit George. The Division substantiated Erin and
established George for their failure to provide for their children's basic needs.
In November 2019, George began living in a nursing home. The judge
ordered Erin to undergo a psychological evaluation and to attend parenting
classes. George stated he was "too old" to be reunified but the family agreed
that reunification with Erin was the goal. Notwithstanding this goal, Erin did
not attend scheduled evaluations or parenting classes for the next year.
The Division arranged for visits between George, Kaine, and Ezra at the
nursing home until in-person visits were suspended in March of 2020, due to the
COVID-19 pandemic. George maintained daily phone and sometimes video
A-2259-23
5
visits until in-person visits were resumed in August 2020. Erin visited Kaine
four times in five months and was inconsistent in answering his phone calls.
The Division continued to stress to Erin the importance of undergoing the
psychological evaluation, which ultimately occurred on September 29, 2020,
with Alan J. Lee, Psy.D. Dr. Lee recommended Erin attend individual
counseling, parenting classes, and a re-evaluation. He advised against Erin
being an independent caretaker. Dr. Lee concluded Erin had average
intelligence and may have neurological impairment. Dr. Lee described Erin as
"extremely self-centered and egocentric and has a heightened level of
resentment and grandiosity." He opined Erin is prone to "some irrational fears,
impaired empathy, episodic poor control of her anger" and was "psychologically
less mature and developed than most adults."
Dr. Lee diagnosed Erin with disruptive impulse-control and conduct
disorder, and an unspecified personality disorder with narcissistic and avoidant
traits. Dr. Lee recommended Erin attend individual therapy to address her
"maladaptive personality and character traits, improve her empathy, [and]
develop better ways of hand[l]ing her emotions."
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6
The First Guardianship Litigation
On September 30, 2020, the Division filed an order to show cause
application and a verified complaint 3 seeking guardianship of Kaine. At a later
compliance hearing, George was ordered to attend a psychological evaluation
with Dr. Lee and Erin was ordered to comply with all of Dr. Lee's
recommendations. George missed six appointments scheduled with Dr. Lee.
Erin failed to attend parenting classes.
On October 14, 2020, during a supervised visit with Kaine and Ezra,
George became agitated and combative when told he had to cease telling Kaine
to refuse to be adopted. George yelled, told the children the Division was going
to "sell them," and grabbed the case worker, Melissa Cocco, by the arm. The
case worker advised George that future visits would be cancelled if he put his
hands on any Division case worker. Erin continued to not comply with attending
parenting classes and individual counseling.
On March 25, 2021, Erin moved into a "spacious and well-kept" home.
George moved in with her and the Division arranged for his visits to take place
in the home. Erin was barred from George's visits by virtue of a court order. A
few weeks later, during an April 12, 2021, phone call, George advised Cocco
3
Docket Number FG-15-09-21.
A-2259-23
7
there was "no way [he] can take care of the children anymore," he only wanted
to spend time with them, and Erin was hiring someone to take care of them. Erin
and George continued with supervised and therapeutic visitations through May
2021. Kaine's visits with Erin were "abrupt" and her behavior did not improve
over time. During one visit, Erin called herself a "witch" and told the case
worker—Cocco—she would "spiritually" harm Cocco's children. Counselor
Mary Holt noted that Erin "did not provide validation or emotional support
throughout the visit" and "needed redirection and explanations of what [Ka ine]
was feeling." Erin later told Holt that she was going to coach Kaine to state he
was coming home with her.
Sara asked that Kaine be removed from her home because she did not want
to deal with Erin and George any longer. On August 6, 2021, the Division placed
Kaine with M.H. (Muriel) and M.H. (Martin).
The first guardianship trial was adjourned because Kaine told Sara he
wanted to be reunified with Erin and George. The judge ordered Erin and
George to attend psychological evaluations with Dr. Lee. On August 17, 2021,
George was scheduled to be evaluated by Dr. Lee. However, Dr. Lee could not
perform the evaluation because George was unable to read the printed materials
given to him without his reading glasses. A week later, the judge dismissed the
A-2259-23
8
litigation under FG-15-09-21 and ordered Kaine to be monitored under an FN
docket.
Eventually, Dr. Lee evaluated George, who struggled to maintain
concentration. Based on his testing and interview, Dr. Lee opined that George
had "significant cognitive and intellectual issues and impairment," with an IQ
of 74. Dr. Lee noted George had significant coping and problem-solving
difficulties, and was "rather grandiose, self-centered and entitled." Dr. Lee
reported that George's knowledge of parenting and child-rearing was "limited
and poor," and he was unable to parent Kaine within the foreseeable future.
Dr. Lee also conducted a bonding evaluation between Kaine and George.
Kaine told Dr. Lee that George "smacked" him hard and "kicked" him in the
past. George denied ever hitting Kaine. Dr. Lee concluded that Kaine did not
have a significant and positive attachment with George.
Erin was discharged from her individual therapy due to inconsistent
attendance. The Division referred Erin to another therapist but the agency was
unwilling to work with her because she made threatening comments to her
clinician. Erin also made untoward statements to Cocco, alleging racial
discrimination for not returning Kaine to her custody, the Division stole her
children, and that Dr. Lee was a liar.
A-2259-23
9
Following an emergent hearing on February 18, 2022, the judge ordered
that George's parenting time would no longer take place at the family's home
due to safety concerns for the Division's staff in light of Erin's threatening
communications to Cocco. The judge ruled George would not be notified about
where visits would occur to avoid the possibility of Erin appearing. For the rest
of February and March 2022, George's and Erin's visitations were cancelled at
either Kaine's request or George's unwillingness to attend visitation in the
community. On March 30, 2022, Erin commenced individual therapy with
Paschal Igwe, Ph.D.
As of August 29, 2022, Erin and George both failed to complete court -
ordered services and comply with court orders. And, Kaine no longer wanted
reunification with his parents. Consequently, the Division changed the goal to
termination of parental rights followed by adoption, concurrent with
reunification efforts.
The Second Guardianship Trial
On May 31, 2022, the Division filed a complaint for guardianship, the
operative pleading in this matter. As of June 15, 2022, Erin had not completed
her parenting program recommended by Dr. Lee, her individual therapy,
therapeutic visitations, or updated psychological evaluation. George also had
A-2259-23
10
not engaged in services recommended by Dr. Lee. Kaine refused visits with
Erin. The Division updated their individual and family assessments and noted
George had not visited Kaine between August and October 2022. George was
re-admitted to a nursing home and was diagnosed with dementia (which was
later deemed incorrect), psychotic disturbance, mood disturbance, anxiety, and
ataxia (loss of motor control). The Division canceled George's psychological
evaluation in light of these developments.
On November 30, 2022, Erin was re-evaluated by Dr. Lee. Based on her
interview and testing, Dr. Lee concluded that Erin had cognitive and intellectual
difficulties, entrenched and maladaptive personality and character traits, and her
parenting skills remained limited. Erin's overall intelligence score was a 61. Dr.
Lee characterized Erin as a "minimally adequate parent" at that time and in the
foreseeable future, and her prognosis for change was poor.
On April 4, 2023, Dr. Lee conducted a psychological evaluation of Kaine.
According to Kaine, he visited George weekly but did not have visits with Erin.
Kaine recalled his parents argued frequently and that Erin beat George "badly."
Kaine also reported that Erin drank alcohol to the point her eyes rolled back in
her head. Kaine told Dr. Lee that he wished to be adopted by his resource
parents. Dr. Lee observed that Kaine had "no remarkable sense of loss in not
A-2259-23
11
having a relationship with his birthparents at this point or in the future." Dr.
Lee found Kaine was "fairly well[-]adjusted," but had some emotional delays.
Dr. Lee recommended Kaine would benefit from continued structure,
consistency, predictability, and nurturance, and might regress if not provided
with these things. Dr. Lee concluded permanency was important for Kaine, and
he needed stability instead of the uncertainty he faced with Erin and George.
On June 1, 2023, George was moved from the nursing home to a
permanent assisted living facility. Erin suggested her aunt as a possible resource
parent for Kaine but Erin failed to appear for a meeting to provide details about
the aunt. George refused to participate in a psychological evaluation with Dr.
Quintana4 and refused to comply with a paternity test. The judge found George
was "legally presumed" to be Kaine's father. Under Rule 4:26-2(b)(4)5, the
judge appointed a guardian ad litem for George based on her concern over his
mental capacity. Erin and George were ordered to provide their reunification
plans to the Division.
4
Dr. Quintana's first name is not provided in the record.
5
Under Rule 4:26-2(b)(4), the court may appoint a guardian ad litem for a minor
or alleged or adjudicated incapacitated person on its own motion.
A-2259-23
12
On August 15, 2023, Dr. Igwe provided an updated therapy report
regarding Erin. Dr. Igwe noted his prior evaluations did not take into
consideration Erin's cultural background and that George was "physically
violent," but Erin permitted the children to remain with him because she had no
one else to raise them. Kaine's resource parents remained committed to adopting
him.
At the trial, the Division called case workers Cocco, Nicole Steimle, Dr.
Lee, Dr. Igwe, Kaine, and Muriel as witnesses. Cocco detailed her experience
with the family over a two-year period. Cocco testified how Kaine refused to
visit Erin, and about the threatening voicemails she received from Erin, which
were usually overnight. Cocco stated Erin left a voicemail that she knew where
Cocco lived and left the address on the voicemail. Cocco testified that Erin
failed to appear for two psychological evaluations with Dr. David Brandwein in
the past but later was evaluated by Dr. Lee.
Based on Dr. Lee's recommendations, Cocco testified she set up parenting
classes through St. Francis and individual therapy through the St. Francis Ocean
Reunification program, but Erin was discharged due to poor attendance. Cocco
stated Erin was later referred to the Mercy Center for a parenting class and
completed the class but was negatively discharged from individual therapy.
A-2259-23
13
Cocco stated that George visited Kaine fairly consistently, but did not return any
of her phone calls from March to September 2022. In addition, Cocco testified
about Kaine's experience at the resource home and her discussions with the
resource parents on Kinship Legal Guardianship (KLG).
Steimle testified she explored possible relative placements with Erin, who
provided the names of three individuals. Erin was unable to provide any
information about one of the individuals, who is her aunt, the other individual
resided in New York and would not move to New Jersey, and the third individual
did not agree to be assessed for placement. Steimle stated that George did not
provide any potential relative placements. Steimle testified Kaine told her that
he wanted to be adopted.
Dr. Igwe testified that the focus of Erin's therapy "in general was about
her own separation anxiety." Dr. Igwe opined Erin had "underlying issues that
she was dealing with, [relating to] trauma," including several miscarriages. He
maintained that Erin "was doing all she could as a mom . . . to strengthen the
bond between herself and her kid. . . ." Dr. Igwe noted that Erin "can be very
emotional and that is the way she communicates."
Kaine testified in camera that on "a lot of nights," prior to his removal
from his parents' home, the family did not eat. Kaine stated that George took
A-2259-23
14
care of the children. Kaine indicated that George "couldn't really like wash
dishes . . . or like clean the house" and Erin did not clean the house. According
to Kaine, Erin only came to the home approximately once per month and called
"only sometimes." Kaine indicated that George did not drive, so they would
walk to a "Luigi's" for food.
Kaine recalled his parents would argue and that "it would get physical,"
and Erin would hit George when they argued. Kaine expressed he wished to
continue visits with George, but not Erin. Kaine testified he did not want to live
with Erin or George, recognized George could not take care of him, and that his
parents could not keep him "safe." Kaine indicated he wanted to be adopted by
his resource parents.
Muriel testified that Kaine had been with her and her family for two years
and four months at the time of trial. Muriel testified about her understanding of
KLG versus adoption, stating "adoption is a finalization . . . [w]ith KLG . . . the
child stays in your home, still has contact with [his or her] parents, and at any
point that the parents become capable of rekindling the relationship or can take
care of them, [then] they can return."
Muriel explained her understanding that KLG could be a permanent plan,
but she did not want Kaine to be faced with going "back and forth." Muriel
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15
testified that she and Martin would not consider KLG even if adoption was not
in Kaine's best interests. Muriel testified that Kaine chose not to see Erin.
However, because Kaine has a close relationship with George, Muriel was in
favor of maintaining visitation between Kaine and George.
Dr. Lee described the psychological evaluations he performed of Erin,
George, and Kaine, and the bonding evaluation he had conducted concerning
Kaine and George6. Dr. Lee testified that he reviewed the report of George's
therapist, who concluded George showed no evidence of dementia or cognitive
decline. However, Dr. Lee testified that George had limited knowledge of
"common parenting practices" and was not a "minimally adequate parent" or
independent caretaker to Kaine in the present or in the foreseeable future.
Regarding Erin, Dr. Lee testified she viewed herself "in a very problem-
free light" and she "rejected the need to change" based on psychological testing
he administered to her. Dr. Lee explained Erin's test scores revealed she denied
any "life problems" or "unfavorable traits" and had a "negative view of helping
professionals." Dr. Lee opined Erin had "heightened levels of anger and
resentment" and tried to "control events." Her insight was "poor and often
6
The record does not indicate a bonding evaluation was conducted between
Erin and Kaine.
A-2259-23
16
inaccurate," and she was "hyper-focused" on her belief she was "the victim of
others' mistreatment."
Dr. Lee testified that Erin's limited knowledge of parenting and "lack of
empathy" rendered her unable to address Kaine's needs. Dr. Lee explained why
he felt Erin and George were unfit to parent Kaine, why he believed Kaine's
safety and protection were at risk of harm if he was left in their care, why the
resource parents were capable and bonded caregivers, and why terminating
parental rights would not cause more harm than good.
Erin and George did not testify and did not present any witnesses or
evidence on their behalf. The Law Guardian did not present any witnesses or
evidence. The parties were directed to submit written summations.
On March 7, 2024, the judge placed her decision on the record and entered
an order finding in the Division's favor and terminating Erin's and George's
parental rights to Kaine. The judge found Dr. Lee's uncontroverted findings
were "thorough and comprehensive," and the expert was "very informative and
credible." The judge also determined Cocco's uncontroverted testimony to be
informative and that she was "very knowledgeable" about the case. In contrast,
the judge did not find Dr. Igwe's testimony to be "especially useful." These
consolidated appeals followed.
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17
II.
The termination of parents' rights to raise their children is a matter of
constitutional magnitude. See In re Guardianship of K.H.O., 161 N.J. 337, 346
(1999). Those rights, however, are "not absolute" and are limited "by the
State's parens patriae responsibility to protect children whose vulnerable lives
or psychological well-being may have been harmed or . . . be seriously
endangered by a neglectful or abusive parent." N.J. Div. of Youth & Fam.
Servs. v. F.M., 211 N.J. 420, 447 (2012).
"Children have their own rights, including the right to a permanent, safe
and stable placement." N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J.
Super. 76, 111 (App. Div. 2004). Our courts have acknowledged "the need for
permanency of placements by placing limits on the time for a birth parent to
correct conditions in anticipation of reuniting with the child." Ibid. Thus, a
parent's interest must, at times, yield to the State's obligation to protect
children from harm. See N.J. Div. of Youth & Fam. Servs. v. G.M., 198 N.J.
382, 397 (2009).
Consequently, the law requires a balancing of those two competing
interests: the parents' constitutionally protected right to raise their children,
absent state interference, and the State's responsibility to protect the welfare of
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children. See N.J. Div. of Child Prot. & Permanency v. D.C.A., 256 N.J. 4, 20
(2023). That balancing "is achieved through the best interest of the child
standard." Ibid. (quoting K.H.O., 161 N.J. at 347). The Legislature codified
that standard in N.J.S.A. 30:4C-15.1(a). See D.C.A., 256 N.J. at 21
(recognizing the Legislature codified "the best interests test" when it enacted
N.J.S.A. 30:4C-15.1(a)).
Thus, when seeking termination of parental rights, the Division must
establish, by clear and convincing evidence, the following four-prong criteria
set forth in N.J.S.A. 30:4C-15.1(a), as amended by the Legislature in 2021:
(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;
(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.
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These four prongs are "not discrete and separate" but rather "overlap to offer
a full picture of the child's best interest." N.J. Div. of Youth & Fam. Servs. v.
R.G., 217 N.J. 527, 554 (2014).
We give substantial deference to the trial court's opportunity to have
observed the witnesses first-hand and to evaluate their credibility. Id. at 552.
"Our general deference on appeal is also informed by the Family Part judge's
'feel of the case[,]'" N.J. Div. of Child Prot. & Perm. v. D.H., 469 N.J. Super.
107, 116 (App. Div. 2021) (quoting N.J. Div. of Youth & Fam. Servs. v. E.P.,
196 N.J. 88, 104 (2008)), and by the Family Part's "special expertise in matters
related to the family[.]" F.M., 211 N.J. at 448. Accordingly, we defer to the
trial court's factual findings "and uphold those findings if they are grounded
in substantial and credible evidence in the record." D.C.A., 256 N.J. at 19.
The trial court's decision should be reversed on appeal only if its
findings were "so wholly unsupportable as to result in a denial of justice." N.J.
Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 511 (2004); see also N.J.
Div. of Child Prot. & Perm. v. D.A., 477 N.J. Super. 63, 80 (App. Div. 2023).
We review the trial court's legal conclusions de novo. R.G., 217 N.J. at 552-
53; see also D.C.A., 256 N.J. at 19 (acknowledging we give no deference to
the trial court's interpretation of N.J.S.A. 30:4C-15.1(a)).
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20
"The first two prongs, N.J.S.A. 30:4C-15.1(a)(1) and (2), are 'the two
components of the harm requirement' and 'are related to one another.'" N.J.
Div. of Child Prot. & Perm. v. T.D., 454 N.J. Super. 353, 380 (App. Div.
2018) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999)).
"Therefore, 'evidence that supports one informs and may support the other as
part of the comprehensive basis for determining the best interests of the
child.'" Ibid. (quoting D.M.H., 161 N.J. at 379).
Under the first prong, "the Division must prove harm that 'threatens the
child's health and will likely have continuing deleterious effects on the child.'"
N.J. Dep't of Child. & Fams. v. A.L., 213 N.J. 1, 25 (2013) (quoting K.H.O.,
161 N.J. at 352). The Division need not "wait 'until a child is actually
irreparably impaired by parental inattention or neglect.'" F.M., 211 N.J. at 449
(quoting D.M.H., 161 N.J. at 383).
Under prong two, "the inquiry centers on whether the parent is able to
remove the danger facing the child." Id. at 451 (citing K.H.O., 161 N.J. at
352); see also D.C.A., 256 N.J. at 27 (finding prong two as amended was
intended "to ensure that parental fitness – not the child's bond with the resource
parents – is the core inquiry when a judge considers the best interests standard’s
second prong in a termination of parental rights case").
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21
Prong three, N.J.S.A. 30:4C-15.1(a)(3), requires the Division to make
"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 to "consider[] alternatives to termination of parental rights." As to the
first part of prong three, the reasonableness of the Division's efforts is not
conditioned upon their success. N.J. Div. of Youth & Fam. Servs. v. L.J.D.,
428 N.J. Super. 451, 488 (App. Div. 2012). The success or failure of the
Division's efforts will not "foreclose a finding that the Division met its
statutory burden to try to reunify the child with the family." Ibid. (quoting
N.J. Div. of Youth & Fam. Servs. v. F.H., 389 N.J. Super 576, 620 (App. Div.
2007)).
"Experience tells us that even [the Division's] best efforts may not be
sufficient to salvage a parental relationship." F.M., 211 N.J. at 452. As to the
second part of the third prong, the Division must prove "by clear and
convincing evidence that 'alternatives to termination of parental rights' have
been appropriately considered." N.J. Div. of Youth & Fam. Servs. v. J.S., 433
N.J. Super. 69, 87 (App. Div. 2013).
Prong four, N.J.S.A. 30:4C-15.1(a)(4), "serves as a fail-safe against
termination even where the remaining standards have been met." N.J. Div. of
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22
Youth & Fam. Servs. v. G.L., 191 N.J. 596, 609 (2007). "The question
ultimately is not whether a biological mother or father is a worthy parent, but
whether a child's interest will best be served by completely terminating the
child's relationship with th[e] parent." E.P., 196 N.J. at 108. In making that
determination under the fourth prong, the court may consider evidence
regarding the bond between the child and the resource parents. See D.C.A.,
256 N.J. at 28 (holding the 2021 amendment to N.J.S.A. 30:4C-15.1(a)
"precludes a court from considering the bond between a child and resource
parents under the second prong of the best interests standard but does not bar
such evidence when the court addresses that standard's fourth prong").
Erin contends the judge erred in concluding termination of her parental
rights to Kaine is in his best interest. Erin avers the judge misapplied the
applicable law and reached erroneous legal conclusions that do not follow
from the evidence presented. Erin also argues that Dr. Lee rendered a net
opinion, which should not have been considered by the judge.
George contends: (1) Dr. Lee's IQ tests failed to demonstrate that he
and Erin are intellectually disabled and unable to parent; (2) there is a tenuous
or ambivalent relationship between him and Kaine because the Division
provided inadequate visitation; (3) Kaine was deprived of effective assistance
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23
of counsel because the Law Guardian failed to maintain his visits with him;
(4) the judge relied on Kaine's testimony, which fails to distinguish the
difference between KLG and adoption; and (5) the judge primarily relied on
George's poverty and lack of resources instead of parental dereliction and
irresponsibility in her fact-finding.
As detailed in the judge's comprehensive opinion, we agree the record
contains adequate substantial, and credible evidence to support the judge's
decision to terminate Erin's and George's parental rights. In her extensive
opinion, which need not be repeated in detail here, the judge thoroughly
addressed all four statutory factors for termination. Both parents have shown
themselves under prong one to be unfit to care for Kaine primarily due to the
persisting issues of deplorable housing conditions, food insecurity, and
domestic violence incidents. The judge emphasized that after four years of
litigation, there was still "no specific plan offered to this court" by Erin and
George. The judge noted the "tenuous relationship" between Kaine and his
parents. The testimony on these issues by the Division's witnesses was
unrebutted.
The judge based her prong two finding on Kaine's resource placements
spanning over four years. The judge's findings are amply supported by the
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opinion testimony of Dr. Lee, who opined that continued delays in Kaine's
permanency could cause enduring harm. Moreover, no expert endorsed either
parent as an independent caretaker for Kaine. Erin made no significant
improvements in the past two years, and neither parent developed any insight
regarding why Kaine had to be removed. Kaine tried to speak to Erin about
the neglect, but she dissuaded him. The judge's findings as to prong two are
amply supported by the record.
As to prong three, the record supports the judge's detailed findings that
the Division reasonably provided or offered Erin and George services. The
judge highlighted that failure to comply or obtain positive results was
attributable only to Erin and George.
Erin contends the judge did not consider significant cultural differences
in her analysis and ignored the Legislature's intent to preserve parental rights
under the 2021 amendments. George argues the Division created the
"tenuous" and "ambivalent" relationship between him and Kaine by providing
inadequate visitation, and the judge placed too much emphasis on Kaine's
testimony that he wanted to be adopted. We disagree.
The judge had ample basis under prong three to find the Division had
adequately explored alternatives to termination. The case workers testified
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about the information they had provided to the resource parents about adoption
and KLG. Muriel testified at length about the information provided to her, the
differences between KLG and adoption, why she and Martin rejected KLG,
and why they wanted to adopt Kaine.
To satisfy the third prong, the record must demonstrate that the Family
Part made reasonable efforts to reunite the family and "considered alternatives
to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). "[A]ssessment of
relatives is part of the [Division's] obligation to consult and cooperate with the
parent in developing a plan for appropriate services that reinforce the family
structure." N.J. Div. of Youth & Fam. Servs. v. K.L.W., 419 N.J. Super 568,
583 (App. Div. 2011).
"It is the policy of [the Division] to place, whenever possible, children
with relatives when those children are removed from the custody of their
parents." N.J. Div. of Youth & Fam. Serv. v. K.F., 353 N.J. Super. 623, 636
(App. Div. 2002). "That said, although the Division has a statutory duty to
evaluate relatives as potential caretakers, there is no presumption favoring the
placement of a child with such relatives." J.S., 433 N.J. Super. at 82.
Under this prong, an alternative to termination of parental rights is KLG.
KLG allows a relative to become the child's legal guardian and commit to care
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for the child until adulthood, without stripping parental rights. P.P., 180 N.J. at
508. The Legislature created this arrangement because it found "that an
increasing number of children who cannot safely reside with their parents are in
the care of a relative or family friend who does not wish to adopt the child or
children." N.J. Div. of Youth & Fam. Servs. v. L.L., 201 N.J. 210, 222-23
(2010).
Prior to July 2, 2021, KLG was considered "a more permanent option than
foster care when adoption '[was] neither feasible nor likely.'" P.P., 180 N.J. at
512 (emphasis added) (quoting N.J.S.A. 3B:12A-6(d)(3) to (4)). As such, "when
a caretaker . . . unequivocally assert[ed] a desire to adopt," the standard to
impose a KLG was not satisfied because the party seeking a KLG arrangement
would not be able to show that adoption was neither feasible nor likely. N.J.
Div. of Youth & Fam. Servs. v. T.I., 423 N.J. Super. 127, 130 (App. Div. 2011).
In other words, when permanency through adoption was available to a child,
KLG could not be used as a defense to the termination of parental rights. N.J.
Div. of Youth & Fam. Servs. v. D.H., 398 N.J. Super. 333, 341 (App. Div. 2008).
On July 2, 2021, however, the Legislature enacted L. 2021, c. 154, which,
in part, removed the KLG requirement that adoption be "neither feasible nor
likely." P.P., 180 N.J. at 512 (emphasis added) (quoting N.J.S.A. 3B:12A-
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6(d)(3) to (4)). As such, KLG may now remain a valid defense to the termination
of parental rights. D.H., 398 N.J. Super. at 341. Regardless of whether the
amendment applies retroactively, a KLG defense requires a valid KLG
alternative. D.H., 398 N.J. Super. at 341.
Here, the Division established it made reasonable efforts to reunite Erin
and George with Kaine, and there were no alternatives to termination of their
parental rights through clear and convincing evidence. As the judge found:
[The Division] provided reasonable efforts in this
regard, to include family preservation services,
treatment recommendations, psychological
evaluations, supervised visitation, therapeutic
visitation, individual counseling, family team meetings,
assessment of persons for placement, multiple
psychological evaluations, a bonding evaluation, as
well as comprehensive reunification [—] as well as a
comprehensive reunification services program to
effectuate the reunification of [Kaine] for the entirety
of this matter, even during the respective goal changes.
The judge determined that Erin failed to clean and repair the home, was
late or canceled visitations with Kaine on many occasions, and refused
individual counseling set up by Cocco because Erin advised her it wasn't
needed. Moreover, the judge stressed Erin was discharged unfavorably from
parenting classes at St. Francis. When the goal was changed back to
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reunification, Erin was referred to the Ocean Reunification Program, but was
discharged for non-compliance.
Regarding George, the judge credited Cocco's testimony that he grabbed
her arm and tried to force her to sit down. Cocco indicated that during the last
six months she was involved with the case, communications broke down
between her and George. In the judge's analysis of alternatives to termination
of parental rights, she found that KLG was not an appropriate alternative plan
in this matter, noting there were no potential relatives or close friends willing
to adopt Kaine.
Given Muriel's and Martin's informed decision to reject KLG and choose
adoption, we are not persuaded by Erin's and George's argument. "The
decision of a resource parent to choose adoption over KLG must be an
informed one." N.J. Div of Child Prot. & Perm. v. M.M., 459 N.J. Super. 246,
260 (App. Div. 2019). As the judge reasoned, a resource parent cannot be
forced to accept KLG. In sum, there was ample evidence, including expert
testimony, to support the judge's findings under prong three.
Lastly, as to the fourth prong, the judge did not abuse her discretion in
finding that termination of Erin's and George's parental rights would not do
more harm than good. The essence of Erin's argument is that the judge applied
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a "better off" analysis and erroneously focused on the resource parents instead
of the statutory requirements. Erin claims: (1) no bonding evaluation was
performed by any expert with her and Kaine; (2) the judge heavily relied on
Dr. Lee's findings and opinions; and (3) the judge relied on Kaine's feelings
towards Erin to establish she is unfit to parent him, but discounted her feelings
as to terminating her parental rights. George contends that his disrupted
attachment with Kaine was due to the Division providing inadequate
visitation.
"To satisfy the fourth prong, the State should offer testimony of a
well[]qualified expert who has had full opportunity to make a comprehensive,
objective, and informed evaluation of the child's relationship with both the
natural parents and the foster parents." F.M., 211 N.J. at 453 (quoting New
Jersey Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007)).
Termination is appropriate, "even in the absence of evidence showing that [the
child] has bonded with [the] foster parents," if the court is presented with "a
clear and compelling record warranting the termination of parental rights." F.H.,
389 N.J. Super. at 623. "The crux of the fourth statutory subpart is the child's
need for a permanent and stable home, along with a defined parent-child
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relationship." N.J. Div. of Youth and Fam. Servs. H.R., 431 N.J. Super. 212,
226 (App. Div. 2013).
Here, the judge aptly found that the Division has proven that termination
of Erin's and George's parental rights will not do more harm than good. The
judge noted Dr. Lee's testimony regarding his psychological evaluation of Kaine
in her opinion:
[Kaine] advised that there were other children in the
home. He reported the home as good. He recalled being
in placement since age ten. He said that he has visits
with his dad every week, . . . He does currently not have
visits with his birth mother. He indicated to Dr. Lee at
that time that he wanted to be adopted by his current
resource parents. He said he would miss his dad at that
time but not so much his mom. He understood what
adoption meant . . . [Kaine] was scared when his parents
fought . . . discussed how his mom drank alcohol on
occasion. He enjoys school and has friends and likes
playing basketball.
Dr. Lee acknowledged that Kaine clearly had a history of instability prior
to his removal and that he displayed no remarkable sense of loss at not having a
relationship with his parents. Dr. Lee further testified that Kaine "had an
ambivalent attachment and relationship with George," which indicated that there
is a low risk of this child suffering severe and enduring psychological harm if
the relationship with George was terminated.
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With regard to Erin, Kaine refused to attend an evaluation with her. The
record shows Kaine has not communicated with her for approximately two
years, but indicated that although he "loves" her, he is still considering whether
or not he wants contact with her in the future. Kaine stated he has very few
memories of ever spending time with Erin, and testified she was rarely ever
home. And, when Erin was home, she was the aggressor in various acts of
domestic violence against George.
The judge also credited the case workers' observations of Kaine and his
resource parents and Kaine's testimony on this issue:
The new place, the resource home, they take care of me
and they love me, my grades are good, I stay healthy,
and there is food, and the [c]ourt's recollection is that
he mentioned that several times, and we have food
every night. They keep me safe. There is a mom and a
dad and four other children. One is very close to my
age, along with another one, and one is [twenty] and
one is [twenty-six]. I share a room with one person. I
get along with everyone.
Muriel testified that Kaine "fit into the family like a puzzle piece" and
his social skills have developed greatly over the past two years. Muriel and
Martin are committed to meeting Kaine's needs through adolescence and into
adulthood. In contrast, the judge highlighted that George and Erin "have not
made any consistent efforts to re-establish parental relationships with [Kaine]
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or actually plan for his reunification after removal, except for visitation on
[George's] part."
The judge did not err in giving substantial weight to Kaine's need for
permanency, having been in an uncertain status for four years. M.M., 189 N.J.
at 281. The judge's decision was based upon the credible testimony presented,
including the testimony of the Division's case workers, Dr. Lee, and Kaine.
We are satisfied the judge did not abuse her discretion in finding that
termination of Erin's and George's parental rights would not do more harm
than good.
To the extent we have not addressed other arguments raised by Erin and
George, we find they are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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