DCPP v. S.A. AND M.A., IN THE MATTER OF THE GUARDIANSHIP OF M.M.A. (FG-12-0044-21, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-1222-21

NEW JERSEY DIVISION

OF CHILD PROTECTION

AND PERMANENCY,

Plaintiff-Respondent,

v.

S.A.,

Defendant,

and

M.A.,

Defendant-Appellant.

_______________________

IN THE MATTER OF THE

GUARDIANSHIP OF M.M.A.,

a minor.

__________________________

Submitted September 14, 2022 – Decided October 27, 2022

Before Judges Gooden Brown and DeAlmeida.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Middlesex County,

Docket No. FG-12-0044-21.

Joseph E. Krakora, Public Defender, attorney for

appellant (Sarah L. Monaghan, Designated Counsel, on

the briefs).

Matthew J. Platkin, Acting Attorney General, attorney

for respondent (Melissa H. Raksa, Assistant Attorney

General, of counsel; Nicholas Dolinsky, Deputy

Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,

attorney for minor (Meredith Alexis Pollock, Deputy

Public Defender, of counsel; David Valentin, Assistant

Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendant M.A. (Mark) appeals from the December 3, 2021 amended

order of the Family Part terminating his parental rights to his daughter M.M.A.

(Marina).1 We affirm.

I.

Mark and defendant S.A. (Susan) are the biological parents of Marina,

who was born in 2016. Five months after Marina's birth, DCPP received a

referral alleging that Mark and Susan were using heroin and thereby putting

1

We use initials and pseudonyms to protect the confidentiality of records

relating to proceedings involving plaintiff Division of Child Protection and

Permanency (DCPP or the Division). R. 1:38-3(d)(12).

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Marina's health and safety at risk. At the time, Mark lived with his parents and

Susan and the child lived with Susan's father. Mark visited Susan's home often.

During an investigation, Mark admitted he had abused opiates in the past,

had recently been arrested for possession of controlled dangerous substances,

and was on probation. Susan said she was undergoing methadone treatment to

address her addiction to opiates. The Division implemented a safety protection

plan (SPP) requiring Mark to be supervised by Susan when he was caring for

Marina, due to his recent arrest.

Although Mark quickly enrolled in an intensive outpatient drug abuse

treatment program, he overdosed two days later at Susan's home while Marina

was present. Susan, who was "panicking," administered Narcan to Mark before

paramedics arrived. He was hospitalized as a result of the overdose. Marina

was upset and crying during the episode.

The Division changed the SPP to require Mark's mother to be present to

supervise visits outside of Susan's home. The Division also filed a complaint

seeking care and supervision of Marina, which the court granted.

Because Mark tested negative for illegal substances and was attending

treatment for two months, the court granted him unsupervised visits with the

child. This was short-lived, however, as Mark was caught tampering with his

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urine sample at his probation office the next day. Supervised visitation was

reinstituted.

In February and March 2017, Mark was twice discharged from treatment

programs for excessive absenteeism, positive or diluted urine samples, and non-

compliance. In June 2017, Susan relapsed on Benzodiazepine, opiates, and

cocaine. She later made a voluntary identified surrender of her parental rights

to Marina.

The Division, which amended its complaint to obtain custody of Marina,

placed the child with Mark's brother (Andrew) and sister-in-law (Vivian). After

this placement, Mark was provided supervised visitation with the child.

However, he frequently did not attend visits. When he did visit Marina, Mark's

interaction and engagement with the child were minimal. When the trial started

in September 2021, Mark had not visited the child in person since May 2021 and

had only spoken to her for about one minute by telephone in July or August.

Mark regularly failed to attend numerous drug treatment programs offered

to him. Although he periodically reengaged with treatment, he repeatedly

relapsed, occasionally overdosed, and was hospitalized for drug use. Mark often

denied drug use, refused follow-up screenings, and attempted to conceal his

abuse of drugs by tampering with urine samples. On one occasion, he tested

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positive for cocaine, marijuana, and Xanax. Mark attributed the test results to a

"pre-workout drink."

In January 2018, Mark was incarcerated on a probation violation. After

his release in February 2018, Mark was arrested on a number of charges,

including burglary, automotive theft, and credit card theft. Another period of

incarceration followed. Mark's behavior resulted in prolonged absences from

Marina's life.

Marina, however, was thriving while living with Andrew and Vivian, and

their two sons, who are Marina's cousins. At the time of trial, Marina, who was

five, had lived with her aunt, uncle, and cousins for four years. Vivian testified

as to her understanding of the difference between kinship legal guardianship

(KLG) and adoption and was emphatic that she and Andrew wished to adopt

Marina. She stated she was concerned about how Marina would react if removed

from her care, recounting that the child threw severe tantrums, tried to climb out

of Susan's car, and cried for Andrew and Vivian when overnight visits were

attempted after Susan had consistent supervised visits for months. Andrew and

Vivian had never denied a request from Mark to visit with Marina or to talk to

her on the telephone. But, Vivian testified, Mark did not ask to see or speak to

the child often, and when he did their interaction was limited. Vivian testified

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that Marina had a limited relationship with Mark and that she and Andrew did

not want the child exposed to the possibility of Mark seeking custody in the

future or the trauma of being separated from the only family she has ever known.

A Division employee confirmed that she discussed KLG with Andrew and

Vivian numerous times. She testified that they chose adoption over KLG

because of the stability that adoption would provide for Marina.

The court accepted as credible the opinion of an expert in forensic and

clinical psychology. The expert testified that during an interview Mark

downplayed his parental shortcomings, was glib, and avoided answering

questions about his criminal history and substance abuse. Mark acknowledged

that Marina was bonded with Andrew and Vivian and said he wanted the child

to remain with them while he worked toward reunification. However, Mark

presented no plan for reunification or to provide for Marina's care. He stated

that regardless of the outcome of the trial, he would continue to be involved in

Marina's life because he would see her at family events if she was adopted by

Andrew and Vivian. The expert noted that on psychological evaluation tests

Mark skipped questions and filled in large swaths of questions with the same

answer, indicating avoidance or flippancy and rendering the results invalid.

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The expert opined that Mark's substance abuse disorder, criminal

behavior, and lack of concern for Marina's needs, along with his repeated failed

attempts at treatment and sobriety, are chronic problems that are unlikely to

remediate. He opined that Mark could not safely parent Marina and gave him a

poor prognosis for being able to do so in the foreseeable future.

The expert testified that while Marina was familiar with Mark, she

scoffed, demeaned, or defied him whenever he attempted to direct her or

establish authority over her. Marina also rebuffed Mark's efforts to provide

comfort or physical contact. The expert acknowledged a child can form multiple

attachments but explained that those attachments come from experience and

nurturance and not "out of magic or out of genes or out of biology." The expert

opined that Mark meant "nothing" to Marina in terms of nurturance and care and

did not look to him as a parental figure. In contrast, Marina displayed a bond

and attachment to Andrew and Vivian, who she viewed as her psychological

parents and who have been the only stable parental figures in the child's life.

The expert opined that Marina's safety, health, and development had been

and would continue to be endangered by her relationship with Mark and that

termination of his parental rights would not do more harm than good. He

explained Marina would suffer severe and enduring trauma if her placement with

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Andrew and Vivian was disrupted or if reunification failed, and there was a risk

of Marina being traumatized if she saw Mark under the influence of drugs,

overdose, or engage in criminal behavior. The expert opined that Mark lacked

the capacity to mitigate this harm and was likely to exacerbate the harm should

Marina be forced to attend visits with him.

The record contains no evidence Mark has a realistic plan to provide a

stable and nurturing home for his child. For almost all of Marina's life, Mark

has not maintained a suitable living environment for her, or provided her with

the emotional support and stability necessary for her development and well -

being. Mark instead wants Andrew and Vivian to have custody of Marina

through KLG so that he might eventually elect to seek custody of the child. 2

On July 2, 2021, prior to the start of trial, the Governor approved L. 2021,

c. 154. The law, which was effective immediately upon enactment, L. 2021, c.

154, § 10, made several amendments to statutory provisions relevant to the

appointment of a kinship legal guardian and the standards the Division must

meet when petitioning the court for termination of parental rights.

2

Although Mark was present for the first day of trial, he was absent from the

second day because he was detained in a county jail and refused to appear.

Mark's counsel has informed this court that he presently is serving a prison

sentence ending in 2024.

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Specifically, the law: (1) sets forth the finding that KLG "is the preferred

resource for children who must be removed from their birth parents," L. 2021,

c. 154, § 1;3 (2) amended N.J.S.A. 3B:12A-2 and -5(b)(10) to shorten the period

that a child must live with a person for that person to qualify for appointment as

a kindship legal guardian, L. 2021, c. 154, §§ 2 and 3; (3) amended N.J.S.A.

3B:12A-6(d)(3) to delete the requirement that adoption of the child is neither

feasible nor likely before KLG can be considered, L. 2021, c. 154, § 4; (4)

amended N.J.S.A. 9:6-8.30(a), -8.31(b), -8.54(a), and N.J.S.A. 30:4C-12.1(a) to

require DCPP to make reasonable efforts to place a child with a person with a

kinship relationship prior to placing the child with another person and the court

to consider a placement with a person with a kinship relationship prior to placing

the child with another person, L. 2021, c. 154, §§ 5, 6, 7 and 8; and (5) amended

N.J.S.A. 30:4C-15.1(a)(2), commonly referred to as prong two of the best-

interest-of-the-child test, to remove a provision permitting the court to consider

evidence that separating the child from their resource family parents would

cause serious and enduring emotional or psychological harm to the child , L.

2021, c. 154, § 9.

3

This legislative finding appears as an editor's note to N.J.S.A. 30:4C-83.

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The guardianship trial took place on September 24 and October 19, 2021,

more than two months after L. 2021, c. 154 took effect. However, during trial,

the only mention of the new law was during the closing statement of Mark's

counsel. He stated that "as of July 2nd of this year, N.J.S.A. 30:4C-15.1 was

amended to reflect that the existence of a healthy bond with the caretakers does

not preclude the child from a permanent bond with the parent." This is a

reference to a legislative finding in L. 2021, c. 154, § 1. Mark's counsel did not

mention any of the substantive statutory amendments effectuated by the new

law, particularly the amendment of prong two of the four-prong test set forth in

N.J.S.A. 30:4C-15.1(a)(2). The attorneys representing DCPP and the child did

not mention the new law.

On November 5, 2021, the trial court issued an oral opinion terminating

Mark's parental rights. The court concluded that DCPP had established each

prong of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The court

found that Mark

has significant and well-documented parenting

limitations, which has further contributed to [Marina]

having to remain in resource care and suffer the harm

of uncertainty. Specifically, this [c]ourt has found that

[DCPP] has proven that [Mark] is unable to adequately

parent [Marina] and that his lack of capacity would put

[Marina] at risk of harm.

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....

This [c]ourt finds that [DCPP] has proven by clear and

convincing evidence that [Mark] has unabated

substance abuse issues, lacks appropriate housing, and

. . . is incapable of consistent, appropriate, long-term

parenting and that [Mark] simply absented himself

from [Marina's] life.

The court found that Mark was unwilling or unable to eliminate the harm facing

Marina, DCPP made reasonable efforts to provide services to Mark, and the

termination of Mark's parental rights would not do more harm than good.

When reaching its decision, however, the court recited N.J.S.A. 30:4C-

15.1(a)(2) as if it had not been amended four months earlier. Thus, the court

stated that when considering the harm facing Marina "[s]uch harm may include

evidence that separating the child from his foster parents would cause serious

and enduring emotional and psychological harm to the child." This is a nearly

verbatim recitation of the language removed from N.J.S.A. 30:4C-15.1(a)(2) by

L. 2021, c. 154, § 9 on July 2, 2021. When analyzing factor two, the court found

that Marina "has established a safe and secure bond with the resource parents,

who wish to adopt her, and the severance of those bonds will cause severe harm."

The court did not mention the provisions of L. 2021, c. 154 declaring KLG

to be a preference over adoption or the other statutory amendments favoring

KLG. Instead, the court stated that "[a]s public policy increasingly focuses on

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a child's need for permanency, the emphasis has shifted [from] protracted efforts

for reunification with the birth parents to an expeditious and permanent

placement to promote the child's well[-]being." The court's description of the

trend in public policy with respect to permanency is not in sync with the

statutory amendments enacted in L. 2021, c. 154.

On December 3, 2021, the trial court issued a supplemental oral opinion,

the entirety of which follows:

This – this is a supplemental decision, as I said. Now

this [c]ourt relies upon the previous decision, which

was it (sic) entered into this case. However, the prior

decision did not address – excuse me – the change in

N.J.S.A. 30:4C-15.1, which was amended at

[s]ubsection (a)(2), which is the second prong. Excuse

me. The amendment removed the second sentence,

which reads quote: "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," unquote.

In the instant matter, the testimony and evidence were

replete with information that the defendant's parental

rights should be terminated even when the amendment

is considered by the [c]ourt. Evidence was produced by

the State which was clear and convincing that the

parental rights should be terminated. The defendant's

criminal activity, lack of a plan, and unstable housing

all point to sufficient reasons by clear and convincing

evidence even without the previous language contained

in the second prong.

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Based upon all that was heard during the trial, this

[c]ourt reaffirms its decision to terminate the parental

rights of the defendant.

On December 3, 2021, the trial court entered an amended order

terminating Mark's parental rights to Marina. The body of the order is dated

November 5, 2021 and states that the court issued its decision on November 5,

2021. However, the order was filed on December 3, 2021 and states that the

matter was brought before the court on that date. The December 3, 2021

supplemental decision is not noted in the order.

This appeal follows. Mark argues: (1) the court erred with respect to

prong three of the statutory analysis, N.J.S.A. 30:4C-15.1(a)(3), because it did

not consider KLG as an alternative to termination; (2) the record does not

support the trial court's conclusion that termination of Mark's parent al rights

would not cause more harm than good under prong four of the analysis, N.J.S.A.

30:4C-15.1(a)(4); and (3) the order terminating his parental rights was the result

of ineffective assistance of his trial counsel.

II.

Our scope of review on appeal from an order terminating parental rights

is limited. N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007).

We will uphold a trial judge's factfindings if they are "supported by adequate,

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substantial, and credible evidence." N.J. Div. of Youth & Fam. Servs. v. R.G.,

217 N.J. 527, 552 (2014). "We accord deference to factfindings of the family

court because it has the superior ability to gauge the credibility of the witnesses

who testify before it and because it possesses special expertise in matters related

to the family." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 448

(2012); see Cesare v. Cesare, 154 N.J. 394, 413 (1998). "Only when the trial

court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an

appellate court intervene and make its own findings to ensure that there is not a

denial of justice." N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104

(2008) (quoting G.L., 191 N.J. at 605). We also accord deference to the judge's

credibility determinations "based upon his or her opportunity to see and hear the

witnesses." N.J. Div. of Youth & Fam. Servs. v. R.L., 388 N.J. Super. 81, 88

(App. Div. 2006). No deference is given to the court's "interpretation of the

law" which is reviewed de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012).

When terminating parental rights, the court focuses on the "best interests

of the child standard" and may grant a petition when the four prongs set forth in

N.J.S.A. 30:4C-15.1(a) are established by clear and convincing evidence. In re

Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). "The four criteria

enumerated in the best interests standard are not discrete and separate; they

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relate to and overlap with one another to provide a comprehensive standard that

identifies a child's best interests." Id. at 348.

N.J.S.A. 30:4C-15.1(a), as amended by L. 2021, c. 154, requires the

Division to prove:

(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 division 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.

We begin our analysis by acknowledging that the trial court made a legal

error when, in its November 5, 2021 opinion, it analyzed the Division's

application for termination of Mark's parental rights under a version of N.J.S.A.

30:4C-15.1(a) that had been substantively amended four months earlier. As

explained above, a provision of N.J.S.A. 30:4C-15.1(a)(2) allowing the court to

consider the harm that would be visited on Marina were she separated from

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Andrew and Vivian was removed by L. 2021, c. 154, § 9. Yet, the trial court

quoted the deleted provision and appears to have considered that harm in its

analysis.4

On December 3, 2021, the trial court addressed its error in a supplemental

opinion. While the supplemental opinion is brief, having carefully reviewed the

record, we are confident the trial court ultimately relied on the amended version

of N.J.S.A. 30:4C-15.1(a)(2) when it entered the December 3, 2021 order

terminating Mark's parental rights to Marina. Mark argues that the trial court's

failure to note the December 3, 2021 supplemental opinion in its December 3,

2021 order is indicative of the court's reliance on the outdated version of

N.J.S.A. 30:4C-15.1(a)(2). See Rule 1:6-2 (f) ("If the court has made findings

of fact and conclusions of law . . . the order shall indicate whether the findings

4

We need not tarry long on the cause of the trial court's error. At trial, Mark's

counsel expressed his awareness of L. 2021, c. 154, although he informed the

court of only one of its provisions, which was of limited assistance to his client 's

position. The attorneys representing DCPP and Marina did not mention the new

law. When the trial court issued its November 5, 2021 opinion, some four

months after enactment of L. 2021, c. 154, counsel for all parties were present.

None objected to the court's application of the outdated version of N.J.S.A.

30:4C-15.1(a). Although there is no indication in the record that any party

moved for reconsideration pursuant to Rule 4:49-2, the court apparently became

aware of its error, triggering issuance of its December 3, 2021 opinion. We note

only that it is incumbent on counsel and the court to remain apprised of the

enactment of new statutes. See State v. O'Neil, 219 N.J. 598, 616-17 (2015).

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and conclusion were written or oral and the date on which they were rendered.").

We view the omission as an immaterial oversight.

Mark argues that the trial court erred when it concluded the Division had

established prong three of the statutory test, N.J.S.A. 30:4C-15.1(a)(3), because

it failed to consider KLG as an obvious alternative to termination. We disagree.

The record establishes that DCPP first placed the child with Andrew and Vivian,

who both have a kinship relationship with Marina, N.J.S.A. 3B:12A-1, and

would, after the statutory period of caring for the child, have been eligible for

KLG. N.J.S.A. 3B:12A-5(b). A Division employee explained to Andrew and

Vivian the differences between KLG and adoption on numerous occasions. The

couple was not interested in pursuing KLG. As Vivian clearly explained at trial,

she and Andrew, while open to allowing Mark to have contact with the child, do

not want Marina to live with the possibility of Mark one day seeking custody

and disrupting the only stable home she has known.

There is nothing in the record suggesting that KLG was a viable

alternative for Marina. Mark has identified no person with a kinship relationship

to Marina who wishes to accept KLG of the child. And, we see no provision of

L. 2021, c. 154 that would permit a court to compel Andrew and Vivian to accept

KLG against their wishes. The intent of L. 2021, c. 154 was satisfied here: the

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Division placed the child with kin immediately upon gaining custody and it

explored KLG with the only two relatives who stepped forward to care for the

child. They rejected KLG, offering instead to adopt the child. The outcome

placed Marina in a permanent home with her uncle, aunt, and cousins. Her

adoptive parents have promoted frequent contact between Marina and many of

her other relatives, including Mark's parents, none of whom have offered to

accept custody of the child under KLG. It is difficult to see this outcome as

contrary to the intent of L. 2021, c. 154, which includes the legislative finding

that "[t]here are many benefits to placing children with relatives . . . such as

increased stability and safety as well as the ability to maintain family

connections and cultural traditions." L. 2021, c. 154, § 1.

We are also not persuaded by Mark's argument that there is insufficient

evidence in the record for the trial court's conclusion that the termination of his

parental rights would not cause more harm than good. Termination of parental

rights poses a risk to children due to the severing of the relationship with their

natural parents, but it is based "on the paramount need the children have for

permanent and defined parent-child relationships." K.H.O., 161 N.J. at 355

(quoting In re Guardianship of J.C., 129 N.J. 1, 26 (1992)).

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Thus, "the fourth prong of the best interests standard [does not] require a

showing that no harm will befall the child as a result of the severing of biological

ties." K.H.O., 161 N.J. at 355. Prong four "serves as a fail-safe against

termination even where the remaining standards have been met." G.L., 191 N.J.

at 609. Generally, to prove the fourth prong, DCPP "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 N.J. Div.

of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 281 (2007)); See R.G., 217 N.J.

at 564 (finding the Division's position lacked support because "no bonding

evaluation was conducted"); N.J. Div. of Youth & Fam. Servs. v. A.R., 405 N.J.

Super. 418, 432 (App. Div. 2009) (affirming an order denying the termination

of parental rights where no bonding evaluation was conducted).

Here, the trial court relied on expert testimony that Mark has not provided

Marina with a stable and nurturing home. He has not provided for her well-

being. Marina's relationship to Mark, apart from biology, is minimal. She does

not view him as a parental figure. The harm to Marina from the termination of

Mark's parental rights would be minimal. On the other hand, termination will

result in a significant benefit for the child, she will be freed for adoption by her

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uncle and aunt, who have provided her with a safe home since shortly after her

birth and have maintained her contact with her paternal relatives.

Lastly, we turn to Mark's claim that he was denied the effective assistance

of counsel. In N.J. Div. of Youth and Fam. Servs. v. B.R., 192 N.J. 301, 306-

07 (2007), the Court held that a parent facing termination of parental rights is

entitled to effective assistance of counsel. In order to establish a prima facie

case of ineffective assistance, a parent must demonstrate that trial counsel's

performance was deficient, and that there exists "'a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding would have

been different.'" Id. at 307 (quoting Strickland v. Washington, 466 U.S. 668,

694 (1984)). Our review of ineffective assistance of counsel claims is "highly

deferential" Ibid. (quoting Strickland, 466 U.S. at 689). We presume counsel's

performance fell within acceptable standards governing attorneys in like

circumstances absent proof to the contrary.

We agree that Mark's trial counsel fell below acceptable standards when

he failed to inform the court of the substantive provisions of L. 2021, c. 154

during trial and when the court issued its November 5, 2021 opinion. He also

should have moved for reconsideration after the court issued its original opinion.

In addition, Mark's counsel failed to object during trial to evidence relating to

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the harm that would be visited on Marina were her relationship with Andrew

and Vivian severed and did not question witnesses with respect to whether the

newly enacted statute's standards were considered by DCPP prior to the start of

trial.

However, as we have explained above, the trial court ultimately decided

DCPP's application to terminate Mark's parental rights under the amended

version of N.J.S.A. 30:4C-15.1(a), and, given the absence of a qualified person

to accept custody of Marina under KLG, counsel's failure to raise the issue with

the court would not have changed the outcome of this matter.

Affirmed.

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