DCPP VS. B.M., IN THE MATTER OF GUARDIANSHIP OF S.M. AND G.M. (FG-16-0021-20, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-3250-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
B.M.,
Defendant-Appellant.
_______________________
IN THE MATTER OF THE
GUARDIANSHIP OF S.M.
and G.M., minors.
_______________________
Submitted September 16, 2021 – Decided October 1, 2021
Before Judges Alvarez and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County,
Docket No. FG-16-0021-20.
Joseph E. Krakora, Public Defender, attorney for
appellant (Lora B. Glick, Designated Counsel, on the
brief).
Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Donna Arons, Assistant Attorney General,
of counsel; Toni Lynn Imperiale, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Rachel E. Seidman,
Assistant Deputy Public Defender, of counsel and on
the brief).
PER CURIAM
Defendant B.M. appeals from a March 17, 2020 order terminating his
parental rights in two children, then two and four years of age. After the trial,
in which B.M. did not participate, Judge Imre Karaszegi, Jr., rendered a written
decision and order finding the New Jersey Division of Child Protection and
Permanency (Division) met by clear and convincing evidence all four prongs of
the best interests of the child test embodied in N.J.S.A. 30:4C-15.1(a). We
affirm, relying on Judge Kareszegi's thoughtful and cogent decision.
B.M. raises the following points on appeal:
POINT I
THE TRIAL COURT'S CONCLUSIONS PURSUANT
TO N.J.S.A. 30:4C-15.1(a) WERE BASED UPON A
MISAPPLICATION OF THE LAW AND FINDINGS
OF FACT THAT ARE NOT SUPPORTED BY
CREDIBLE EVIDENCE IN THE TRIAL RECORD.
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A. The Trial Court Erred In Holding That DCPP
Made Reasonable Efforts To Reunify [B.M.] with
[S.M.] And [G.M.] And That It Considered Alternatives
To Terminating [B.M.'s] Parental Rights.
(i) DCPP failed to prove, by clear and
convincing evidence, that its efforts at
reunification were reasonable.
(ii) The trial court failed to properly consider
alternatives to termination of [B.M.'s] parental
rights.
B. The Trial Court Erred In Holding That [B.M.]
Caused And Will Continue To Cause Harm To [S.M.]
And [G.M.], That He Is Unwilling Or Unable To Cure
The Harm, Or That A Delay In Permanent Placement
Will Add To The Harm.
(i) DCPP failed to prove, by clear and
convincing evidence, that [B.M.] caused harm to
[S.M.] and [G.M.] or that he was unwilling or
unable to cure that harm.
(ii) DCPP failed to prove, by clear and
convincing evidence, that the separation of
[S.M.] and [G.M.] from their resource parents
would cause them "serious and enduring
emotional or psychological harm."
C. The Trial Court Misapplied The Facts To The
Law In Holding That Termination Of [B.M.'s] Parental
Rights Will Not Do More Harm Than Good On A
Record Based On Impermissible Embedded Hearsay
And Devoid Of Expert Opinion, Reports Or Testimony.
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POINT II
DCPP'S HANDLING OF [B.M.'s] CASE CREATED
THE GROUNDS ON WHICH IT SOUGHT TO
TERMINATE HIS PARENTAL RIGHTS SUCH
THAT TERMINATION VIOLATED [B.M.'s]
SUBSTANTIVE DUE PROCESS RIGHTS AND,
THUS, CANNOT STAND.
We conclude the arguments lack sufficient merit to warrant much
discussion in a written opinion in light of the record and applicable law. See R.
2:11-3(e)(1)(E). The facts and circumstances can be briefly summarized.
The Division had been involved with the children's mother, S.M., at the
time of her death on September 6, 2018. S.M. and B.M. did not reside as a
family at that point, although B.M. later claimed he traveled from Atlantic City
to S.M.'s Paterson home to assist her after the birth of the second child, and once
again after the Division became involved with S.M. in August 2018.
S.M.'s tragic death from a drug overdose came to the attention of the
authorities when a homeless man flagged down a passing patrol car to report
that he had heard children crying in the woods and discovered them by their
mother's lifeless body. The Division initiated legal proceedings on September
7, 2018. After the children were identified from photographs by a caseworker
familiar with the family, they were placed in a resource home on September 10,
2018. The Division filed its complaint for guardianship on August 30, 2019.
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The resource parents wish to adopt. One of the children receives
specialized services because she is on the autism spectrum. They are doing well
in the home.
While the litigation was pending, from September 7, 2018, to the
termination judgment nearly two years later, the Division struggled to maintain
contact with B.M. He appeared at Division offices once, on September 24. B.M.
attended a court hearing in person on September 25, 2018, and visited the
children on that same date—his only visit with them since their mother died.
B.M. participated in telephonic proceedings on October 16, 2019, the other
occasion he has appeared in court.
All the while, B.M. has been homeless and unemployed. He refused to
give the Division an address, and the Division was unable to contact him for
seven months. B.M. refused to participate in evaluations or even visitation.
This, despite the Division's offer of transportation and motel accommodations
so he could see the children.
The Division presented one witness, a caseworker, and many documents.
The judge learned a bonding evaluation had been conducted between the
children and their resource parents, and that the evaluator concluded terminating
their relationship would likely cause lasting psychological harm. No report was
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presented—he learned of the existence of the expert opinion in another
document admitted into evidence. Although the judge referenced the evaluator's
opinion, he did not rely upon the bonding evaluation. The court enumerated
family that was contacted as alternative placements, and none expressed interest
or were qualified to take the children.
The judge meticulously considered the proofs required to assess the
statutory prongs. See N.J.S.A. 30:4C-15.1(a). Finding that B.M. failed to visit
his children despite being provided with the means to do so, B.M. demonstrated
he was unable or unwilling to establish a nurturing relationship with his
children, given his absence from their lives. See N.J.S.A. 30:4C-15.1(a)(1). He
was unable or unwilling to eliminate the harm he posed to the children because
he refused to engage in court-ordered services, submit to evaluations, or make
himself available for visitation. See N.J.S.A. 30:4C-15.1(a)(2). The Division's
substantial efforts at reuniting B.M. with his children ultimately failed because
he did nothing in response. See N.J.S.A. 30:4C-15.1(a)(3). The children are
doing well in their foster home. See N.J.S.A. 30:4C-15.1(a)(4). Kinship legal
guardianship was simply not an option—apart from the fact no suitable and
willing family member could be located, the resource parents wish to adopt. See
N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 513 (2004) ("[W]hen
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the permanency provided by adoption is available, kinship legal guardianship
cannot be used as a defense to termination of parental rights . . . ."); see also N.J.
Div. of Youth & Fam. Servs. v. T.I., 423 N.J. Super. 127, 135-36 (App. Div.
2011) (holding resource family's "unequivocal" desire to adopt rendered kinship
legal guardianship inappropriate because adoption was neither infeasible nor
unlikely).
The trial judge ultimately concluded:
the harm suffered from the termination of the parental
relationship will not be greater than the harm caused by
permanently disrupting the child's relationship with the
foster parents as the children have been in placement
for eighteen months and their current caretakers have
provided for and are committed to provide for their
needs going forward.
Our review of the decision is limited and deferential. We do not disturb
a trial judge's factual findings so long as they are supported by substantial
credible evidence. See N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527,
552 (2014). The record contains such evidence, which supports the judge's legal
conclusions. The Division clearly and convincingly established it had proven
each statutory element as a matter of law. See N.J. Div. of Child Prot. &
Permanency v. R.L.M., 236 N.J. 123, 145 (2018).
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Affirmed.
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