DCPP v. A.D. AND T.B., IN THE MATTER OF THE GUARDIANSHIP OF D.A.J.D. (FG-11-0025-20, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

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NOT FOR PUBLICATION WITHOUT THE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-2912-20
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
A.D.,
Defendant-Appellant,
and
T.B., a/k/a B.D.,
Defendant,
________________________
IN THE MATTER OF THE
GUARDIANSHIP OF
D.A.J.D., a minor.
________________________
Submitted February 9, 2022 – Decided March 8, 2022
Before Judges Sumners and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FG-11-0025-20.
Joseph E. Krakora, Public Defender, attorney for
appellant (Phuong Dao, Designated Counsel, on the
briefs).
Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Donna Arons, Assistant Attorney General,
of counsel; Mary L. Harpster, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Lynn B. Norcia,
Designated Counsel, on the brief).
PER CURIAM
Following a Title 30 guardianship trial, the family court terminated the
parental rights of A.D. (Allison) 1 and T.B. (Timothy) to their then five-year-old
son D.S.J.D. (David). Allison appeals, whereas the Law Guardian and the
Division of Child Protection and Permanency (Division) urge that we uphold the
decision. 2 Because we reject Allison's contentions that the Division failed to
1
We use pseudonyms or initials to protect the confidentiality of the participants
in these proceedings. R. 1:38-3(d).
2
Timothy did not participate in any aspect of the litigation and has not filed an
appeal.
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meet its statutory burden under the four-prong best interests of the child test,
N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence, we affirm.
I.
On March 22, 2017, the Division received a referral from Capital Health
Medical Center at Hopewell alleging Allison neglected David, ten months old
at the time, and completed a Dodd removal 3 of him on that date. Two days later,
the family court upheld the emergency removal and placed David under the care
of the Division. Subsequently, in June, David was placed in the home of
resource parent, D.J. (Deena), where he currently resides.
After a year of conducting periodic status reviews, the court, on May 24,
2018, accepted the Division's permanency plan to terminate Allison and
Timothy's parental rights followed by adoption. Thereafter, the Division
changed its position and successfully moved to have the court approve a
reunification plan based upon the recommendation of the Division's expert
psychologist, David Brandwein, Psy.D., which was "completely dependent on
[Allison's] compliance with Division services, proof of sobriety, and
3
A Dodd removal refers to an emergency removal of a child or children from a
home without a court order, under the Dodd Act, which, as amended, is found
at N.J.S.A. 9:6-8.21 to -8.82.
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maintenance of stable housing and employment." After Allison failed to comply
with the reunification plan, the Division revised its position again, which the
court approved, seeking termination of parental rights followed by adoption.
During the eight-day guardianship trial over diverse dates, the Division
presented testimony from Dr. Brandwein and three of its caseworkers. Allison
testified and presented six witnesses, including her sister E.J. (Ellen) and five
Division employees. She did not present an expert witness. The Law Guardian
did not present any evidence.
Following the trial, Judge Thomas J. Walls, Jr. entered an order
terminating parental rights and issued a 124-page decision summarizing the
matter's procedural history and detailing the factual findings as to each of the
required elements of the best interests of the child standard.
II.
In reviewing a decision by a trial court to terminate parental rights, we
give "deference to family court[s'] fact[-]finding" because of "the family courts'
special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J.
394, 413 (1998). The judge's findings of fact are not disturbed unless they are
"so manifestly unsupported by or inconsistent with the competent, relevant and
reasonably credible evidence as to offend the interests of justice." Id. at 412
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(quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)).
"[T]he conclusions that logically flow from those findings of fact are, likewise,
entitled to deferential consideration upon appellate review." N.J. Div. of Youth
& Fam. Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006).
Judge Walls carefully reviewed the evidence presented, concluding the
Division met, by clear and convincing evidence, all the legal requirements to
sustain a judgment of guardianship. His written decision tracks the four prongs
of the best interests of the child test, N.J.S.A. 30:4C-15.1(a); accords with our
prior holdings in In re Guardianship of K.H.O., 161 N.J. 337 (1999), In re
Guardianship of D.M.H., 161 N.J. 365 (1999), and N.J. Div. of Youth & Fam.
Servs. v. F.M., 211 N.J. 420 (2012); and is supported by substantial and credible
evidence in the record. We, therefore, affirm substantially on the grounds
expressed in the judge's comprehensive and well-reasoned decision. We
highlight the following analysis of each best interests prongs.
A. Prongs One and Two
As to prong one, the Division must prove "[t]he child's safety, health, or
development has been or will continue to be endangered by the parental
relationship." N.J.S.A. 30:4C-15.1(a)(1). "[T]he relevant inquiry focuses on
the cumulative effect, over time, of harms arising from the home life provided
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by the parent." N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 289
(2007).
"Serious and lasting emotional or psychological harm to children as the
result of the action or inaction of their biological parents can constitute injury
sufficient to authorize the termination of parental rights." In re Guardianship of
K.L.F., 129 N.J. 32, 44 (1992) (citing In re Guardianship of J.C., 129 N.J. 1, 18
(1992)). As a result, "courts must consider the potential psychological damage
that may result from reunification[,] as the 'potential return of a child to a parent
may be so injurious that it would bar such an alternative.'" N.J. Div. of Youth
& Fam. Servs. v. L.J.D., 428 N.J. Super. 451, 480-81 (App. Div. 2012) (quoting
N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 605 (1986)).
"The absence of physical abuse or neglect is not conclusive." A.W., 103
N.J. at 605 (quoting In re Guardianship of R., 155 N.J. Super. 186, 194 (App.
Div. 1977)). "A parent's withdrawal of . . . solicitude, nurture, and care for an
extended period of time is in itself a harm that endangers the health and
development of the child." D.M.H., 161 N.J. at 379. "Courts need not wait to
act until a child is actually irreparably impaired by parental inattention or
neglect." Id. at 383.
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As to prong two, the Division must prove "[t]he parent is unwilling or
unable to eliminate the harm facing the child[ren] or is unable or unwilling to
provide a safe and stable home . . . and the delay of permanent placement will
add to the harm." N.J.S.A. 30:4C-15.1(a)(2). The harm may include evidence
that separating the children from their resource parents "would cause serious and
enduring emotional or psychological harm." Ibid. 4
The Division can establish the second prong by proving that a "child will
suffer substantially from a lack of stability and a permanent placement[,] and
from the disruption of [a] bond" with the resource parents. K.H.O., 161 N.J. at
363. Because they are related, evidence supporting the first prong may also
support the second prong "as part of the comprehensive basis for determining
the best interests of the child." D.M.H., 161 N.J. at 379.
Allison argues that the Division has not shown she has harmed David nor
endangered his health and development. She points to the substantial
documentation in the record regarding her visits with David that demonstrate
4
We are aware that on July 2, 2021, the Legislature enacted L. 2021 c. 154, § 9
amending N.J.S.A. 30:4C-15.1(a) pertaining to the standards for terminating
parental rights. Specifically, the Legislature amended
N.J.S.A. 30:4C-15.1(a)(2), to exclude from consideration in a termination of
parental rights case the harm to a child caused from being removed from
resource parents.
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their strong and affectionate bond, resulting in a positive and appropriate
relationship. She argues the judge's legal conclusion that the Division satisfied
the first prong should be given no deference because it was "unsupported by
substantial credible evidence."
Allison's arguments are not an accurate reflection of the record. The judge
essentially found all witnesses gave credible testimony, as their recollections
were consistent with documentary evidence submitted by the Division.
However, the credit attached to Allison and her witnesses does not obscure that
the record is replete with Allison missing numerous in-person and telephone
visits with David; being dismissed from several court-ordered substance abuse,
mental health treatment, and parenting programs due to sporadic attendance; and
her inability to maintain stable housing and employment during the three years
of litigation, despite being offered support by the Division.
After initially seeking termination of Allison's parental rights, the
Division changed its position and gave her the opportunity to reunify with
David. Because she failed to comply with the services offered by the Division
and ordered by the judge, the Division did an about face and renewed its petition
for termination of parental rights. This constitutes a significant indication of
Allison's inability to provide for David's needs.
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In his second and final psychological and bonding evaluation report, 5 Dr.
Brandwein opined that David was bonded to both his mother and the resource
parent, but stated,
[Allison's] lack of consistent personal and
psychological stability renders her bond with [David]
unable to support [him] throughout the remainder of his
childhood and into adolescence and adulthood. Despite
[Allison] being given a chance by this examiner and the
court to be reunified with [David], [she] failed to take
advantage of this chance by complying with Division
services and this examiner's recommendations.
This opinion was not refuted.
Accordingly, there was clear and convincing evidence to support the
judge's finding that a continued parental relationship with Allison would harm
David.
B. Prong Three
As to prong three, the Division is required 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 [will] consider[] alternatives
to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). This prong
5
Dr. Brandwein's initial report prompted the Division to alter its original plan
to terminate parental rights. He diagnosed Allison with major depressive
disorder with mixed features, moderate, in partial remission, as well as
borderline and narcissistic personality traits.
9 A-2912-20
"contemplates efforts that focus on reunification of the parent with the child and
assistance to the parent to correct and overcome those circumstances that
necessitated the placement of the child into foster care." K.H.O., 161 N.J. at
354.
Within the meaning of prong three, "reasonable efforts" include, but are
not limited to:
(1) consultation and cooperation with the parent in
developing a plan for appropriate services;
(2) providing services that have been agreed upon, to
the family, in order to further the goal of family
reunification;
(3) informing the parent at appropriate intervals of the
child's progress, development, and health; and
(4) facilitating appropriate visitation.
[N.J.S.A. 30:4C-15.1(c).]
"Whether particular services are necessary in order to comply with the
[reasonable] efforts requirement must . . . be decided with reference to the
circumstances of the individual case before the court . . . ." D.M.H., 161 N.J. at
390.
The Division
must encourage, foster and maintain the bond between
the parent and child as a basis for the reunification of
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the family. [It] must promote and assist in visitation
and keep the parent informed of the child's progress in
foster care. [It] should also inform the parent of the
necessary or appropriate measures he or she should
pursue in order to continue and strengthen that
relationship and, eventually, to become an effective
caretaker and regain custody of his or her children.
[Ibid. (citing N.J.S.A. 30:4C-15.1(c)).]
A court is required to consider alternatives to the 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).
N.J.S.A. 30:4C-12.1(a) requires the Division to initiate a search within
thirty days of accepting a child into its care or custody for relatives who may be
willing and able to provide the care and support required for the child. The
Division must assess each interested relative and, if it determines that the
relative is unable or unwilling to care for the child, inform the relative of its
reasons for a denial of placement. N.J.S.A. 30:4C-12.1(a)-(b). Also, in July
2021, L. 2021, c. 154, § 4 amended the laws pertaining to the Kinship Legal
Guardianship Act, N.J.S.A. 3B:12A-1 to -7, by deleting "and (b) adoption of the
child is neither feasible nor likely" under N.J.S.A. 3B:12A-6(d)(3).
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"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. Servs. v. K.F., 353 N.J. Super. 623, 636
(App. Div. 2002). "The Division's statutory obligation does not permit willful
blindness and inexplicable delay in assessing and approving or disapproving a
relative known to the Division . . . ." K.L.W., 419 N.J. Super. at 582. It cannot
ignore relatives "based upon an arbitrary, preordained preference for the foster
placement" and "must perform a reasonable investigation of . . . relatives that is
fair, but also sensitive to the passage of time and the child's critical need for
finality and permanency." N.J. Div. of Youth & Fam. Servs. v. J.S., 433 N.J.
Super. 69, 87 (App. Div. 2013).
Allison's arguments are based on an accurate reflection of the record. She
asserts that the Division has not meet its burden of demonstrating a reasonable
effort to reunify her with David and provide services to help her, because David
was removed from their Trenton home and placed with Deena, who lived more
than seventy miles away in Paterson.
Allison further argues the judge's finding that there was no alternative plan
to termination because Deena wanted to adopt was not established because
Deena did not testify. According to Allison, based on L. 2021, c. 154's July
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2021 amendments to the Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1
to -7, the Division should "always place children with relatives and protect and
preserve parental rights whenever possible." She contends the amendment is
meant to be applied retroactively because the Division's underlying policy has
always been to place children with families, and the plain language of the bill
supports retroactivity. She argues the judge's decision that the Division
adequately considered the alternatives before terminating her parental rights was
"in error and incongruent with" recent legislation.
Before addressing the merits of Allison's argument, we reject her
argument that the recent amendments to N.J.S.A. 3B:12A-1 should be applied
retroactively. First, there is no indication within the statute's language or
legislative history that the Legislature meant for the amendments to have a
retroactive effect, nor is it "necessary to make the statute workable or to give it
the most sensible interpretation." Gibbons v. Gibbons, 86 N.J. 515, 522 (1981);
see also Olkusz v. Brown, 401 N.J. Super. 496, 501-02 (App. Div. 2008)
(holding that when the Legislature is silent on the matter of retroactivity, it is a
signal to the judiciary that it intended a prospective application of a statute or
amendment). Second, the Legislature gave no guidance in the amendments that
would assist the Division in applying the changes retroactively in terms of
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timing or methodology. Third, the end of the amendments provides they were
enacted on July 2, 2021, suggesting they would take effect immediately. Our
Supreme Court recently held that an immediate or future effective date within a
statute demonstrates that the Legislature sought prospective application only.
Pisack v. B & C Towing, Inc., 240 N.J. 360, 370-71 (2020). And finally, there
is no evidence in the Legislative history that pipeline retroactivity was intended
or that the Legislature wanted retroactivity for only certain matters such as
pending direct appeals.
Yet, even if the amendments had a retroactive effect, Allison's arguments
are not supported in the record. When David was removed from Allison, the
Division spoke to Timothy, Ellen, Allison's godmother L.S. (Lucy), and B.H.
(Bonnie), a close friend of Allison, as possible placement options for David.
Both Ellen and Bonnie had recent drug charges that excluded them from
placement options. Despite being told she would receive additional money from
the Division to care for David, Lucy indicated that her current home was too
small to take in another child and financial support was insufficient. As for
Timothy, he did not want to care for his son because he was unemployed and
caring for his mother. Indeed, Allison does not indicate there was any viable
family member or friend with whom David could have been placed, nor were
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there any challenges to the Division's determinations that those considered were
unfit. Ellen's newfound claim at trial that she was willing to care for David was
undermined by the fact that he was with Deena for three years, and such a change
would be disruptive to the stability he gained under her care.
As for services offered to Allison, the Division amply provided them to
further reunification. She was offered substance abuse treatment, mental health
counseling, parenting classes, and psychological and bonding evaluations, all of
which, as noted, she failed to comply. The fact that David was placed in
Paterson made it more difficult for her to visit him. There is, however, no
indication in the record that a more convenient placement was available, and
despite being afforded numerous opportunities to visit him and being provided
financial assistance to do so, her attendance was sporadic. Thus, the Division
met this prong by clear and convincing evidence, and the trial court's finding
should not be disturbed.
C. Prong Four
Under prong four, the Division must demonstrate by clear and convincing
evidence that "[t]ermination of parental rights will not do more harm than good."
N.J.S.A. 30:4C-15.1(a)(4). The prong characterizes a child's need for
permanency as "an important consideration." M.M., 189 N.J. at 281. "The
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question to be addressed under that prong is whether, after considering and
balancing the two relationships, the child will suffer a greater harm from the
termination of ties with her natural parents than from the permanent disruption
of her relationship with her foster parents." K.H.O., 161 N.J. at 355. In order
to weigh any potential harm from terminating parental rights against a child's
separation from his or her foster parents, a court must consider expert testimony
on the strength of each relationship. J.C., 129 N.J. at 25. "[W]here it is shown
that the bond with foster parents is strong and, in comparison, the bond with the
natural parent is not as strong, that evidence will satisfy . . . N.J.S.A.
30:4C-15.1(a)(4) . . . ." K.H.O., 161 N.J. at 363.
Allison argues there was more than enough evidence to show that based
on the bond between her and David, termination of her parental rights was not
in David's best interests, and that the judge erred when he disregarded the
mother-and-son bond and attachment. She argues David would clearly suffer
"permanent emotional harm" from the unnecessary destruction of the mother-
child relationship.
We again disagree with Allison's assessment of the record, finding no
merit to her argument. In ruling the Division satisfied prong four, the judge
relied upon Dr. Brandwein's opinion that, while Allison and David did have a
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bond, David and his resource parent also have a bond that had strengthened as
years passed. In fact, Dr. Brandwein found David's bond tilted more towards
Deena because she had provided him with personal and emotional stability, and
did not have a "record with having . . . angry emotional outbursts" as Allison
did. The doctor further found that given Allison's conduct throughout the
litigation, there was a high likelihood her inability to prioritize David above
herself would cause more harm to David and perpetuate instability.
Significantly, Dr. Brandwein's opinion that terminating Allison's parental rights
would do more good than harm was uncontroverted.
In sum, we conclude the judge's termination of Allison's parental rights
was in David's best interests.
Affirmed.
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