DCPP VS. D.S. AND D.ST., IN THE MATTER OF THE GUARDIANSHIP OF L.S. (FG-09-0209-19, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4982-18T1

NEW JERSEY DIVISION

OF CHILD PROTECTION

AND PERMANENCY,

Plaintiff-Respondent,

v.

D.S.,

Defendant-Appellant,

and

D.St.,

Defendant.

_____________________________

IN THE MATTER OF THE

GUARDIANSHIP OF L.S.,

a Minor.

_____________________________

Argued telephonically June 4, 2020 –

Decided July 20, 2020

Before Judges Alvarez and Suter.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Hudson County,

Docket No. FG-09-0209-19.

Adrienne Marie Kalosieh, Assistant Deputy Public

Defender, argued the cause for appellant (Joseph E.

Krakora, Public Defender, attorney; Robyn A. Veasey,

Deputy Public Defender, of counsel; Adrienne Marie

Kalosieh, on the briefs).

Sara M. Gregory, Deputy Attorney General, argued the

cause for respondent (Gurbir S. Grewal, Attorney

General, attorney; Melissa H. Raksa, Assistant

Attorney General, of counsel; Sara M. Gregory, on the

brief).

Margo E.K. Hirsch, Designated Counsel, argued the

cause for minor (Joseph E. Krakora, Public Defender,

Law Guardian, attorney; Meredith Alexis Pollock,

Deputy Public Defender, of counsel; Margo E.K.

Hirsch, on the brief).

PER CURIAM

Defendant, D.S., appeals the judgment terminating her parental rights to

L.S. (Lisa), a daughter.1 She contends the trial court erred because her sister,

T.B., was not evaluated as a placement option, and because it did not address

expert testimony for the defense that opposed termination. We affirm largely

for reasons expressed in the trial court's comprehensive, written opinion.

1

Lisa's father, D.St., did not appeal.

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I.

Defendant is the biological parent of Lisa, who was born in October 2016.

She lived with defendant after her birth. Defendant, then eighteen, was in a

Division-arranged resource home under an "[i]ndependent [l]iving" program.

Her drug screen was positive for marijuana after Lisa's birth, and the Division

referred her for a substance abuse evaluation, counselling and parenting

services. She also was to attend an adolescent service center for life skills,

counseling services, job search support and housing information assistance .

Defendant was not compliant with the services.

Defendant was directed to attend intensive outpatient treatment after she

tested positive for THC and oxycodone. She also signed a safety protection

agreement, requiring her parenting time with Lisa to be supervised at all the

times.

In July 2017, defendant moved out of the independent living resource

home, but she wanted Lisa to remain there. The Division applied for and was

granted care, custody and supervision of Lisa so she could remain in that

resource home. However, Lisa was removed from that resource home after she

was found with defendant, unsupervised. Defendant identified her sister in New

Jersey (M.B.) and her godmother, L. Sp., (Lana), also in New Jersey, as possible

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placement resources for Lisa. M.B. could not care for the baby full time because

of her work hours, but Lana agreed to, and then qualified for placement. Lisa

was ten months old at that time, and has lived with Lana since then.

Defendant did not complete the services to which she was ordered that

included substance abuse treatment, and vocational and parenting skills training,

and was terminated from the programs. Her visitation with Lisa was

inconsistent. She did not keep in contact with the Division's case worker or

attend family team meetings. She was terminated from her counselling program,

her stipend for independent living was stopped, she became homeless and was

staying with friends.

In September 2018, the Division filed a complaint for guardianship to

terminate defendant's and D.St.'s parental right pursuant to N.J.S.A. 30:4C-15.

Defendant agreed to participate in services, but then did not appear for a drug

screen and could not be reached to start counselling. She lost contact with the

Division and did not regularly visit Lisa.

On March 8, 2019, defendant's sister from Virginia, T.B., attended a court

mediation session and expressed an interest in serving as a resource for Lisa.

T.B. visited with Lisa as she had done a few times since her birth. Within three

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weeks, the Division forwarded an Interstate Compact on the Placement of

Children application to Virginia for T.B.

The trial court terminated defendant's and D.St.'s parental rights to Lisa

on June 26, 2019, following a bench trial. In its written decision, the court noted

defendant acknowledged she was not ready to parent Lisa, and sought more time

to stabilize. Despite services, she had not taken the steps in the two years the

child had been in placement to obtain housing, employment or to address the

problems that prevented reunification. Although none of the "obstacles to

reunification [were] insurmountable," defendant was either unwilling or unable

to mitigate these harms. It was defendant who had not complied with the

services provided.

The court found the Division made reasonable efforts to provide services

tailored to her needs and explored alternatives to termination. The court was

not convinced her "recent activity" would continue into the future.

Under prong three, the court found the Division "exercised reasonable

efforts to explore relative resource placements proposed by [defendant]." The

child's placement with Lana, her godmother, was at defendant's suggestion. The

Division was not aware of T.B. as a possible caretaker until the eve of trial

because defendant did not want Lisa to reside in Virginia. The trial court noted

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"all parties agreed, [T.B.] would qualify as an ideal placement for L.S.," but the

Division was not aware of her. Lisa was bonded with Lana and would be harmed

by severing that bond, and placing her with T.B., who had minimal contact and

no bond with Lisa.

The trial court found Dr. Karen Wells' testimony to be "credible and

persuasive," that termination would not do more harm than good and that Lana

could mitigate any harm caused by terminating defendant's rights. Both Dr.

Wells and defendant's expert, Dr. Andrew Brown, III, agreed the child was

bonded with Lana. Dr. Wells' opined Lana was the child's psychological parent.

She also was likely to maintain contact between defendant and the child. The

court found termination would not do more harm than good.

On appeal, defendant raises these issues:

I. REVERSAL OF THE FAMILY PART'S

JUDGMENT AND REMAND TO CONSIDER

PLACEMENT WITH T.B. FOR THE PURPOSE OF

KINSHIP LEGAL GUARDIANSHIP IS REQUIRED

AS A MATTER OF LAW AND IN THE BEST

INTERSTS OF [LISA].

A. THE COURT ERRED IN HOLDING

THAT DCPP MET ITS BURDEN AS TO

PRONG THREE BECAUSE IT FAILED

TO ASSESS T.B. AS A POTENTIAL

CARETAKER.

A-4982-18T1

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1. The court erred in its presumption that

DCPP could not have evaluated T.B.

because it was "completely unaware of

[T.B.] as a possible placement" until March

2019.

2. DCPP's obligation to [Lisa] to explore

her aunt existed regardless of whether

[defendant] initially recommended T.B. for

placement.

B. THE COURT ERRED IN HOLDING

THAT DCPP MET ITS BURDEN AS TO

PRONG FOUR BECAUSE DCPP

CANNOT BE FOUND TO HAVE

PRESENTED CONVINCING EVIDENCE

THAT TERMINATION WOULD NOT

DO MORE HARM THAN GOOD

WHERE IT FAILED TO ASSESS T.B. AS

A POTENTIAL CARETAKER.

II. THE COURT ERRED IN HOLDING THAT DCPP

MET PRONGS TWO, THREE, AND FOUR

WITHOUT DISCUSSING OR ANALYZING

[DEFENDANT'S] EXPERT EVIDENCE THAT

[DEFENDANT] IS [LISA'S] CENTRAL

ATTACHMENT FIGURE AND THAT [LISA'S]

BOND WITH [LANA] COULD BE REPLACED BY

ANY ADEQUATE CARETAKER, INCLUDING T.B.

A. THE JUDGMENT CANNOT BE

AFFIRMED BECAUSE THE COURT

DID NOT DISCUSS THE COUNTER

EVIDENCE BY DR. BROWN

REFUTING DCPP'S EXPERT.

B. THE JUDGMENT CANNOT BE

AFFIRMED BECAUSE THE COURT'S

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ANALYSIS OF PRONGS TWO, THREE,

AND FOUR ARE UNDERMINED BY

DR. BROWN'S TESTIMONY AND

REPORT.

II.

To terminate parental rights, N.J.S.A. 30:4C-15.1(a) requires that the

Division prove by clear and convincing evidence the following four prongs:

(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.

A trial court's decision to terminate parental rights is subject to limited

appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605

(2007); see Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family

courts' special . . . expertise in family matters, appellate courts should accord

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deference to family court factfinding."). The family court's decision to terminate

parental rights will not be disturbed "when there is substantial credible evidence

in the record to support the court's findings." N.J. Div. of Youth & Family Servs.

v. E.P., 196 N.J. 88, 104 (2008).

We have carefully examined the record in light of the arguments posed,

concluding the trial court's findings were supported by substantial credible

evidence on the record as a whole. We defer to those findings. See N.J. Div. of

Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). We affirm

substantially for the reasons set forth by the trial court in its written decision,

adding these comments.

Defendant did not challenge the trial court's finding under prong one that

Lisa's "safety, health, or development has been or will continue to be endangered

by" her parental relationship with defendant. As such, that prong of the best

interest test was met. See Drinker Biddle & Reath, LLP v. N.J. Dep't of Law &

Pub. Safety, Div. of Law, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (noting

claims not addressed in merits brief are deemed abandoned).

Under prong two, the Division must show a parent is unable or unwilling

to correct the circumstances that led to the Division's involvement. In re

Guardianship of K.H.O., 161 N.J. 337, 348-49 (1999). "The question is whether

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the parent can become fit in time to meet the needs of the child." N.J. Div. of

Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 244 (App. Div. 2010).

There was substantial evidence to support the trial court's finding under

prong two. Defendant did not attend the required services and never addressed

her drug abuse issues. Lisa had been in placement for more than two years. In

that time, defendant did not have a realistic plan for achieving reunification or

make progress toward that goal. The court did not err in finding defendant was

unwilling or unable to eliminate the harm facing Lisa, who had a right to

permanency. See N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super.

76, 111 (App. Div. 2004) (providing that children have their own right to a

"permanent, safe and stable placement").

Defendant challenges the trial court's finding that the third prong was

satisfied. She seeks a remand for T.B. to be considered for kinship legal

guardianship or adoption.

Under N.J.S.A. 30:4C-12.1(a), when the Division takes custody of a child,

it must "initiate a search for relatives who may be willing and able to provide

the care and support required by" that child. "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 & Family Servs.

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v. K.F., 353 N.J. Super. 623, 636 (App. Div. 2002). However, there is no

presumption in favor of a relative. N.J. Div. of Youth & Family Servs. v. J.S.,

433 N.J. Super. 69, 82 (App. Div. 2013).

Defendant identified two people as proposed caretakers—a sister, M.B.,

who could not take the child and Lana, her godmother—who could. Lana

testified at the guardianship trial that she wanted to adopt Lisa, who had been in

her care since she was ten-months old. If she were to adopt, she would continue

to allow defendant to have contact with Lisa.

T.B. was identified as a potential placement option shortly before the

termination trial. She lives in Virginia with her seven-year-old daughter, has a

B.A. in psychology and a master's degree in clinical psychology. When Lisa

was six-months old, T.B. offered to be a placement for Lisa, but defendant did

not want Lisa to be that far away from her.

Defendant is critical of the Division for not identifying T.B. earlier

because there was one reference in the Division's records from 2017 to a sister

from out of state. Also, defendant herself was in foster care, which implied the

Division should have known T.B. was her sister. Defendant relies on the case

of Division of Youth & Family Services v. K.L.W., 419 N.J. Super. 568 (App.

Div. 2011). In K.L.W., a judgment terminating parental rights was reversed

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because the Division did not contact the child's maternal grandparent even

though she had custody of the defendant's three other children. Id. at 581-83.

This case differs from K.L.W. Here, no evidence established that T.B.

should have been identified on account of defendant's foster care placement nor

was T.B.'s name or address listed in the Division record from 2017 about an out-

of-state sister. Defendant did not identify T.B. because she wished to keep Lisa

in New Jersey, a strategy that has worked to her disadvantage.

T.B. knew Lisa was in placement but did not press the issue with

defendant and never alerted the Division she might be an alternative until shortly

before the trial. By this time, the child had lived with Lana most of her life, was

bonded with her and had no relationship with T.B. The expert testimony that

the court found to be credible was that Lisa would be harmed if that bond were

severed and that defendant would not be able to remediate that. On this record,

we find no error by the trial court's conclusion that prong three was satisfi ed.

In evaluating prong four, the trial court must balance the children's

relationships with their birth and resource parents and determine whether they

will suffer greater harm from the termination of ties with the former than with

the latter. In re Guardianship of J.N.H., 172 N.J. 440, 478 (2002). Prong four

does not require that "no harm will befall the child as a result of the severing of

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biological ties." K.H.O., 161 N.J. at 355. A court must consider "the child's

age, her overall health and development, and the realistic likelihood that the

[natural] parent will be capable of caring for the child in the near future." Id. at

357.

There was substantial credible evidence for the court's finding that the

fourth prong of the best interest test was satisfied. The court found credible Dr.

Wells' testimony. Her bonding evaluation concluded that Lana was the child's

psychological parent because they had "a mutual intact and secure child to

parent bond . . . ." The child had a strong emotional and psychological

attachment to Lana. In Dr. Wells' opinion, if that bond were severed, Lisa would

suffer emotional and psychological harm that defendant would not be able to

mitigate. This would affect the child's ability to trust other people and

negatively affect her self-esteem. In contrast, the child's bond with defendant

was "familiar" and "fluid", meaning "in and out" because she was inconsistent

in Lisa's life. Dr. Wells opined Lisa would not suffer irreparable harm if the

relationship were severed with defendant. In her opinion, Lisa would have

permanency and stability if adopted by Lana.

Defendant is critical of the court's treatment of Dr. Brown's testimony

because it did not address it in any detail. Dr. Brown recommended

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reunification—not at the present time—but as a goal. Defendant also needed

housing and employment. Dr. Brown testified Lana was the child's

psychological parent with a secure bond. However, he also found a secure bond

with defendant, who he opined was "the central figure of emotional attachment"

in Lisa's life. He testified that if the bond with defendant were severed, the child

would suffer enduring psychological harm that was irreparable. It was his

opinion, it would not be harmful to Lisa if she were removed from Lana and

placed with either defendant or T.B. Although he and Dr. Wells had differing

opinions on how securely bonded the child was with defendant, they both agreed

that Lana was the child's psychological parent. Dr. Brown acknowledged that

defendant was not presently able to reunify with the child.

The court has the ability to accept or reject, in whole or in part, the opinion

testimony of an expert witness. Pansisi Custom Design Assocs., LLC v. City of

Ocean City, 407 N.J. Super. 137, 143 (App. Div. 2009). The court found Dr.

Wells' testimony to be credible. In doing so, it implicitly rejected Dr. Brown's

opinions about defendant's ability to parent Lisa. In addition, Dr. Brown's

opinion did not give any real consideration to defendant's noncompliance with

services, her inconsistent visitation with Lisa or her failure to adequately address

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her drug issues. And, the record provided the court with ample corroborating

evidence for its finding that termination would not do more harm than good.

The court did not commit error under the Kinship Legal Guardianship

(KLG) Notification Act, N.J.S.A. 30:4C-89 to -92, where current caretakers,

who are eligible to become kinship legal guardians should be informed about

this option. N.J.S.A. 30:4C-90(e). Lana was aware of the KLG option and

testified she wanted to adopt Lisa. "[W]hen the permanency provided by

adoption is available, kinship legal guardianship cannot be used as a defense to

termination of parental rights under N.J.S.A. 30:4C-15.1a(3)." N.J. Div. of

Youth & Family Servs. v. P.P., 180 N.J. 494, 512-13 (2004).

After carefully reviewing the record and the applicable legal principles,

we conclude that any further arguments by defendant are without sufficient

merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

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