DCPP VS. A.L.A. AND M.Z., IN THE MATTER OF THE GUARDIANSHIP OF L.A.A. (FG-04-0176-17, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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-1991-17T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
A.L.A.,
Defendant,
and
M.Z.,
Defendant-Appellant.
________________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF L.A.A.,
a Minor.
________________________________________
Argued October 24, 2018 – Decided November 5, 2018
Before Judges Nugent, Reisner, and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FG-04-0176-17.
Anne E. Gowen, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Anne E. Gowen, on the briefs).
Jennifer A. Lochel, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Jennifer A. Lochel, on
the brief).
Linda V. Alexander, Designated Counsel, argued the
cause for minor (Joseph E. Krakora, Public Defender,
Law Guardian, attorney; Meredith A. Pollock, Deputy
Public Defendner, of counsel; Linda V. Alexander, on
the brief).
PER CURIAM
Defendant M.Z. appeals from a December 14, 2017 judgment terminating
his parental rights to his son, L.A.A. We affirm.
The following facts are taken from the record. M.Z. and A.L.A. are the
biological parents of L.A.A., who was born in January 2016, as well as another
child born prior to L.A.A. M.Z. is also the father of four other children from
another relationship. With the exception of L.A.A., M.Z. has surrendered his
parental rights to all of his children.
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M.Z.'s surrenders came as the result of previous involvement with the
Division of Child Protection and Permanency (Division) and failure to comply
with several recommended services, including anger management, parenting
classes, and inpatient drug treatment and drug screens. The incidents giving rise
to the Division's involvement began in November 2007, when M.Z. was
involved in a domestic violence incident and found in possession of a crack pipe,
causing removal of M.Z.'s four oldest children. In January 2010, another
domestic violence incident, in which M.Z. employed a hammer, resulted in
another removal. In September 2012, the Division was alerted to issues of
substance abuse and domestic violence between M.Z. and A.L.A. in the presence
of one of the children, resulting in a third removal.
M.Z. also had a history of criminality, which absented him from L.A.A.'s
life. He has been incarcerated since December 2015, and his earliest release
date is December 2020. As a result, M.Z. has had no contact with L.A.A., never
met the child, and has been incarcerated for the child's entire life.
The Division continued to receive referrals after M.Z.'s incarceration. In
April 2016, the Division received a referral from the Waterford Township Police
Department regarding an ongoing domestic violence incident involving a verbal
altercation between A.L.A. and her mother, J.M. A.L.A. had been living for
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3
approximately one month in J.M.'s home with L.A.A., and two of the child's
half-siblings. J.M. requested A.L.A. leave due to her behavior.
A Division caseworker interviewed A.L.A. at the police station. A.L.A.
reported she and M.Z. had moved to Florida in October 2015, but she moved
back to Philadelphia in December 2015, after M.Z. was incarcerated. A.L.A.
explained her living circumstances had been transient. She lived with friends,
before spending a period of time living in a Philadelphia shelter after L.A.A.'s
birth. In March 2016, A.L.A. moved into her mother's home with L.A.A., who
was then two months old.
A.L.A. told the caseworker she suffered from multiple psychological
disorders and had not been compliant with her current medication regimen.
When the caseworker questioned J.M., she stated the argument between her and
A.L.A. was only verbal, she had asked A.L.A. to leave the home, and "if a
removal was needed for the baby, she [did not] want to be considered for
placement." A.L.A. and L.A.A. continued to live transiently after leaving J.M.'s
residence.
In May 2016, A.L.A. brought L.A.A. to the Division office. A.L.A. made
unfounded accusations claiming J.M.'s live-in partner had sexually abused one
of A.L.A.'s children. It was apparent to the caseworker A.L.A. was experiencing
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a mental health episode. The Division became concerned regarding A.L.A.'s
condition and homelessness. As a result, the Division removed L.A.A., and
placed him with his resource mother, J.F.
The Division filed a complaint under Title 9 and Title 30 for services on
May 5, 2016, naming both parents as defendants. At a hearing on May 19, 2016,
the Division indicated it was actively searching for M.Z., who it understood was
incarcerated in Florida.
After the removal and commencement of the litigation, J.M. stated she
was unwilling to care for L.A.A. She cited her health, well-being, and the safety
of herself and the two children already in her care. L.A.A.'s paternal
grandmother, T.Z., was also interviewed by the Division and L.A.A. was
ultimately placed in T.Z.'s home seven days after the removal. However, six
days later, T.Z. returned L.A.A. because she did not want to continue interacting
with A.L.A. Therefore, L.A.A. was returned to the home of his resource parent,
J.F., where he has remained ever since.
At a July 15, 2016 hearing, the Division advised the court it had located
M.Z. in a Florida prison. The Division also advised M.Z. declined to complete
a paternity test.
A-1991-17T1
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In December 2016, A.L.A. was fatally struck by a vehicle. After A.L.A.'s
death, the Division contacted J.M. to inquire whether she would serve as a
relative placement for L.A.A. J.M. expressed an interest, and the Division
arranged for visitation to occur twice weekly. The Division also fostered a
relationship between J.M. and J.F. in order to preserve the potential for L.A.A.'s
placement with family.
In February 2017, M.Z. was appointed counsel. At a permanency hearing
in March 2017, the Division advised its plan was termination of parental rights
followed by adoption by J.M. within one year. The judge rejected the Division's
plan and ordered bonding evaluations "to get a little bit more information."
At the second permanency hearing held in April 2017, the Division re-
proposed a plan of termination of parental rights followed by adoption, pending
bonding evaluations and expert reports. The judge approved the revised plan.
The Division filed a guardianship complaint on June 2, 2017, and the court
terminated the Title 9 litigation. M.Z. was represented by appointed counsel
during this time and through the initial hearing in the guardianship matter.
During a case management conference in July 2017, the Division advised
the judge it had difficulty serving M.Z. with the guardianship complaint because
he had moved between correctional facilities in Florida. However, once M.Z.
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6
was served, the attorney who had previously represented him was reappointed.
Additionally, the caseworker traveled to Florida to meet M.Z. and make
arrangements for his participation in the guardianship proceedings.
The guardianship trial occurred over two days in November 2017. M.Z.
appeared by telephone. The Division offered the testimony of forensic
psychologists, Drs. Alan Lee and Lina Jeffrey, and caseworker Tara Lange. J.F.,
J.M., and T.Z. also testified. M.Z. did not.
Dr. Lee had performed an evaluation of M.Z. in Florida. He testified M.Z.
had an extensive criminal history, including juvenile charges and two prison
terms served as an adult. He also testified M.Z. had admitted he was jailed or
detained approximately twenty other times, and had numerous arrests related to
drugs, thefts, burglary, or domestic violence.
Dr. Lee concluded M.Z.'s criminal history demonstrated a larger pattern
of propensity for criminality and impulse control problems, antisocial behaviors,
and a substantial risk of recidivism. Dr. Lee also found M.Z.'s history of
polysubstance abuse problematic because he was not fully invested in substance
abuse treatment and thus had not benefitted from it. Based on the psychological
testing conducted by Dr. Lee, he classified M.Z. as having a "cluster of
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antisocial and narcissistic personality traits" which "reflects on his long history
of behavior and attitude problems."
Dr. Lee concluded M.Z.'s incarceration prevented him from caring for
L.A.A., and his criminal behavior would create an unsafe parenting environment
for the child. Dr. Lee opined M.Z. would not be able to parent L.A.A. because
he lacked any knowledge of parenting and child rearing, and provided erroneous
answers to basic questions regarding a child's common developmental
milestones. Dr. Lee testified M.Z. lacked the ability to parent into the future
because his potential to show any kind of significant lasting changes as a parent
was "poor."
Dr. Jeffrey performed psychological and bonding evaluations of J.M., her
partner, and L.A.A. She also conducted separate evaluations of J.F. and L.A.A.
Dr. Jeffrey's diagnostic impression of J.M. indicated she had adjustment
disorder, anxiety, and narcissistic tendencies. She found J.M. defensive and
exhibiting signs of deception throughout the evaluation. She noted J.M.'s "lack
of candor, narcissistic tendencies, . . . lack of personal insight and lack of
empathy." J.M. also indicated she experienced stress and anxiety regarding her
financial situation and her partner's work schedule, but did not explain why she
had been unemployed since 2013.
A-1991-17T1
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J.M. had also provided a written statement, which gave Dr. Jeffrey
concern. J.M. explained she called the police when A.L.A. began to act
erratically, in order to protect herself, and her other grandchildren, but not
L.A.A. Dr. Jeffrey testified this decision showed questionable parental
judgment because it was:
problematic that [J.M.] indicated that her sense . . .
[A.L.A.] . . . was off her medication, that she was
delusional, and that she was at risk of harm. Whereas,
what was . . . reported[] to the police [w]as not that and
hence the police did not think that they had the basis
[to] arrest . . . [A.L.A.].
I think that the bottom line was the . . . statement "I
chose to keep myself, [H.Z.] and [J.Z.] 1 safe." She did
not choose to keep [L.A.A.] safe.
In other words, despite believing that A.L.A. was having a psychotic episode,
J.M. let her leave the house with L.A.A., and did not alert the police to that
danger. Dr. Jeffrey concluded this decision was emblematic of J.M.'s emotional
immaturity, inability to take responsibility, and adequately problem solve.
Dr. Jeffrey also testified J.M. had a "grandiose sense of self[,]" and placed
her needs above others. She testified that J.M.'s narcissistic tendencies and lack
of empathy impact her ability to parent L.A.A., because she is likely to prioritize
1
H.Z. and J.Z. are J.M.'s other grandchildren.
A-1991-17T1
9
her needs above the child's. Dr. Jeffrey opined "a child's most important role
model[s are] the primary care givers in a child's life. A child's sense of what an
adult is, is derived from their care givers, their parents." Dr. Jeffrey concluded
J.M.'s adjustment disorder impacted her ability to parent because it created a
lack of stability and an inability to serve as a child's role model.
Dr. Jeffrey also expressed concern regarding J.M.'s intention to parent
with her partner because his answers to questions during the bonding evaluation
demonstrated he lacked any knowledge regarding L.A.A. Dr. Jeffrey testified
that during the bonding evaluation with L.A.A. attended by J.M., her other
grandchildren, and her partner, neither J.M. nor her partner attempted to provide
structure for the children. Instead, both remained in their chairs throughout the
evaluation and J.M. resorted to verbal exhortation to attempt to control the
children.
Dr. Jeffrey noted "[L.A.A.] did not display any spontaneous affection to
[J.M.]" In the second bonding evaluation, which included only J.M. and L.A.A.,
Dr. Jeffrey noted there was a lack of greater interpersonal interactions indicative
of a bond. She testified J.M.'s behavior indicated she lacked attunement to
L.A.A., and L.A.A. did not display spontaneous affection for J.M. Dr. Jeffrey
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concluded L.A.A. related to J.M. as a "familiar playmate and a pleasant visitor,"
but L.A.A. would not suffer a harm if the relationship were severed.
The bonding evaluation between L.A.A. and J.F. was quite different. Dr.
Jeffrey's testified J.F. and L.A.A. maintained "good eye contact[,]" and J.F.
provided "gentle yet effective" guidance to L.A.A. She also noted L.A.A. was
relaxed and comfortable with J.F., used her as a "home base," and remained
close in proximity to her as he explored the room. Dr. Jeffrey concluded there
was a bond between J.F. and L.A.A., and a severance of the relationship would
cause him serious harm and hinder his development.
Dr. Jeffrey testified J.M. would have difficulty mitigating the substantial
harm L.A.A. would suffer if his relationship with J.F. were severed because she
failed to comprehend the nature of the attachment between L.A.A. and J.F. Dr.
Jeffrey found J.M.'s inability to empathize with L.A.A. demonstrated she would
not provide the care and support to adequately ameliorate the harm. Dr. Jeffrey
opined J.F. had become L.A.A.'s "psychological parent." Therefore, she
concluded that a permanent placement with J.F. was crucial to L.A.A.'s
development.
J.F.'s testimony corroborated Dr. Jeffrey's findings. She testified L.A.A.
refers to her as "mommy" and has formed relationships with her adult daughter,
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her extended family, neighbors, friends, and members of J.F.'s church. She
expressed an unequivocal desire to adopt L.A.A. and also maintain his
relationship with his blood relatives.
J.M. and T.Z. both testified they had not offered themselves as placement
options when the case began. J.M. explained she offered herself as placement
option only after A.L.A. died, and T.Z. testified she offered herself as a
placement only after she was made aware of the Division's plan to terminate
parental rights.
The trial judge rendered a comprehensive oral opinion finding the
Division had proved the four prongs of N.J.S.A. 30:4C-15.1(a) by clear and
convincing evidence, and a termination of parental rights followed by adoption
by J.F. was in L.A.A.'s best interests. At the outset, the judge noted the
testimony of Drs. Lee and Jeffrey was undisputed. The judge found the experts'
testimony that was credible and corroborated by the facts.
Regarding prongs one and two, the judge credited Dr. Lee's testimony
M.Z. had a long history of substance abuse and behavioral deficiencies , which
prohibited him from parenting at the time or in the foreseeable future. The judge
noted, although M.Z.'s expected release date from prison was December 2020,
A-1991-17T1
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his drug use and behavioral disorders prevented him from adequately parenting
even if he were released on time.
With respect to prong three, the judge credited the caseworker's testimony,
and found the Division had met its burden to make reasonable efforts to reunify
the family by offering services to both parents. The judge noted M.Z. had been
provided services by the Division in connection with the removals of his o ther
children, namely, "parenting [classes], anger management, and counseling."
However, the judge found M.Z. had never asked for services after his
incarceration.
The judge also concluded the Division had satisfied its burden to prove by
clear and convincing evidence there were no alternatives to termination of
parental rights and had assessed relative placements. The judge noted although
the Division is required to assess relative placements, there was no presumption
in favor of placing the child with relatives. Citing to N.J. Div. of Youth &
Family Servs. v. M.F., 357 N.J. Super. 515 (App. Div. 2003), the judge found
"a presumption of custody only exists in favor of a natural parent as opposed to
placement with relatives or foster parents."
The judge noted it was undisputed J.M. was not interested in caring for
L.A.A. when the Division took emergency custody of him and inquired whether
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she was available for placement. J.M. had allowed L.A.A. to leave with A.L.A.
despite her knowledge of A.L.A.'s housing instability and concerns for the
child's safety. The judge also noted T.Z. took custody of L.A.A. for six days
before giving him up for placement with the resource parent. The record
indicated neither J.M. nor T.Z. had communicated with the Division for a period
of ten months while L.A.A. was placed with J.F. The judge found these facts
supported the conclusions drawn by Dr. Jeffrey, that J.M. had a sense of
entitlement, self-absorption, and lacked compassion, attunement, and the ability
to mitigate the harm to L.A.A., which would result from severing his
relationship with J.F.
Notwithstanding, the judge found the Division still arranged for visitation
once J.M. indicated her interest in becoming a placement option for L.A.A. The
judge credited the Division's efforts to preserve the family by securing bonding
and psychological evaluations to determine the viability of a relative placement.
However, the judge found J.F. was the only viable permanency option for
L.A.A. The judge found she placed L.A.A. interests above her own, and had a
substantial support system and experience caring for foster children. Notably,
although the judge found both J.M. and J.F. reported anxiety and depression
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during their evaluations, she concluded only J.F. was committed to engaging in
counseling and treatment.
The judge concluded the fourth prong had been met because L.A.A. had
been placed with a stable and nurturing psychological parent. The judge found
L.A.A. had a significant attachment to J.F. and would be harmed by severing the
relationship, which would not meet the statutory goals of ensuring the physical
and psychological well-being of the child. The judge concluded the only means
of assuring L.A.A. permanency and healthy development was to terminate
M.Z.'s parental rights.
The judge granted the Division guardianship. This appeal followed.
I.
"Appellate review of a trial court's decision to terminate parental rights is
limited[.]" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Because
of the Family Part's special jurisdiction and expertise in family matters, we
accord particular deference to a Family Part judge's fact-finding." N.J. Div. of
Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008); see
Cesare v. Cesare, 154 N.J. 394, 413 (1998). Deference is appropriate because
the trial judge has a "'feel for the case' that can never be realized by a review of
the cold record." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552
A-1991-17T1
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(2014). A reviewing court will not disturb a family court's termination of
parental rights so long as the decision is "supported by substantial and credible
evidence on the record." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.
420, 448 (2012) (citations and internal quotations omitted).
"When the credibility of witnesses is an important factor, the trial court's
conclusions must be given great weight and must be accepted by the appellate
court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family
Servs. v. F.M., 375 N.J. Super. 235, 259 (2005) (citing In Re Guardianship of
DMH, 161 N.J. 365, 382 (1999)). In other words, a family court decision is
overturned only when the fact-findings are "so wide of the mark that [the
Appellate Division's] intervention is necessary to correct an injustice." F.M.,
211 N.J. at 447. The factual findings of the trial court should not be disturbed
on appeal unless "they are so wholly insupportable as to result in a denial of
justice[.]" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)
(citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-
84 (1974)). When the trial court's findings are "supported by adequate,
substantial and credible evidence" those findings should be upheld on appeal.
Ibid.A-1991-17T1
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On appeal, M.Z. argues he was deprived of counsel at the Title 9 stage of
the proceedings, which in turn deprived him of the ability to advocate for
L.A.A.'s placement with family rather than a resource parent. M.Z. claims he
was prejudiced because he was not produced from jail to attend the trial. He
contends his counsel was ineffective for failing to advocate for him at the Title
9 stage and avoid the guardianship filing. He also claims his counsel was
ineffective in the guardianship phase for failing to pursue a bonding evaluation
between the child and J.M., and for failing to advocate for adoption by J.M.
M.Z. also challenges the judge's prong three findings, claiming the Division
made minimal efforts to facilitate his participation in the trial, involve J.M. and
T.Z. in the case, and pursue a permanency placement with relatives.
II.
We first address M.Z.'s claims he was deprived of counsel during critical
stages of the proceedings, was not produced to attend court, and that his counsel
was ineffective. At the outset, we note these arguments are raised for the first
time on appeal. Generally, "issues not raised below will ordinarily not be
considered on appeal unless they are jurisdictional in nature or substantially
implicate the public interest." N.J. Div. of Youth & Family Servs. v. M.C. III,
201 N.J. 328, 339 (2010) (citing Cty. of Essex v. First Union Nat'l Bank, 186
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N.J. 46, 51 (2006)); see also Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234
(1973).
Notwithstanding, we are unpersuaded M.Z.'s claims warrant reversal of
the judgment. In N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301(2007), our Supreme Court adopted the two-part test for assessing ineffective
assistance of counsel from Strickland v. Washington, 466 U.S. 668 (1984). This
test establishes:
(1) counsel's performance must be objectively
deficient—i.e., it must fall outside the broad range of
professionally acceptable performance; and (2)
counsel's deficient performance must prejudice the
defense—i.e., there must be "a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different."
[192 N.J. at 307 (quoting Strickland, 446 U.S. at 694).]
M.Z. argues the deprivation of counsel is presumed to be prejudicial, and
therefore negates the requirement to prove the second prong of the Strickland
standard. Specifically, he relies upon United States v. Cronic, 466 U.S. 648(1984); State v. Miller, 216 N.J. 40 (2013); and United States v. Gonzalez-
Lopez, 548 U.S. 140 (2006).
M.Z. also relies upon In re Guardianship of M., 158 N.J. Super. 585 (J. &
D.R. Ct. 1978). In M. the court voided a parent's voluntary surrender, entered
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after the guardianship complaint was filed, where the Division negotiated the
surrender without the parent's attorney present. 158 N.J. Super. 593-94. The
court noted it was not convinced the parent made a knowing and intelligent
waiver of her constitutional right to counsel. Id. at 593. The court described
the parent's frailties, and stated she:
[wa]s blind. Alcohol has been a problem for her. . . .
she had difficulty when walking and negotiating the
steps to the witness stand even with assistance, and her
hands were constantly shaking as if in a tremor. From
her testimony and demeanor it was obvious that she was
not a very intelligent woman.
[Ibid.]
The court also noted the Division had direct contact with the parent over her
counsel's objection. Id. at 593-94. The court stated this "conduct may itself be
a sufficient overriding equitable consideration so as to invalidate the signing of
the [s]urrender [c]onsent form." Id. at 594.
M.Z.'s circumstances are far different and do not persuade us there was a
presumptive prejudice. Indeed, M.Z. does not suffer from the various deficits
outlined by the court in M. Although M.Z. was without counsel for the majority
of the Title 9 proceedings, it was because he was not the target of the litigation.
Moreover, because A.L.A. was alive and M.Z. was incarcerated, the Division's
goals were reunification with A.L.A. Once it became obvious reunification with
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A.L.A. was not a possibility, and when she died, M.Z. was assigned counsel and
remained represented throughout the litigation and its most critical phases.
M.Z. argues New Jersey Division of Youth and Family Servives v. R.G.,
397 N.J. Super. 439 (App. Div. 2008) is dispositive. We disagree. In R.G. the
trial court held a fact finding hearing, heard a dispositive motion, and
adjudicated that the parent had committed abuse or neglect—all before the
parent had been appointed counsel. Id. at 444-45. The parent's only ability to
confer with counsel was an informal discussion with a public defender who
happened to be present in the courtroom. Ibid. Although we found these
conditions warranted a reversal of the abuse and neglect finding, we did not, as
M.Z. contends, decide the matter under the prejudice prong of the Strickland
test. Id. at 450.
Moreover, the parent in R.G. was the target of the Title 9 proceedings, and
was deprived of counsel at the most critical fact-finding phase of the case.
M.Z.'s circumstances were much different. He was able to consult with his
attorney at all critical points of the litigation. He was represented when the court
dismissed the Title 9 litigation, and the dismissal occurred without an
adjudication of abuse or neglect against either parent. Thus, R.G. is inapposite,
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and the circumstances presented do not support a finding of a presumption of
prejudice.
M.Z. also relies upon In re Adoption of J.E.V., 226 N.J. 90 (2016), where
the Supreme Court mandated the appointment of counsel for a biological parent
who could not afford an attorney in a contested private adoption. Id. at 108.
The Court held reversal of the judgment of adoption was required where "a
complete denial of counsel casts doubt on the fairness of the process followed."
Id. at 115 (citing State v. Shirley E. (In re Torrance P.), 724 N.W.2d 623 (Wis.
2006)). Again, for the reasons we have previously expressed, the circumstances
of J.E.V. are wholly dissimilar from the facts presented here. There was no
"complete deprivation" of counsel for M.Z. Instead, the judge took special care
to assure the appointment of the same attorney for M.Z. in both the Title 9 and
guardianship phases of the litigation. For these reasons, we decline to find a
presumption of prejudice requiring us to obviate a consideration of the second
Strickland prong.
M.Z. asserts the deprivation of counsel during the Title 9 proceedings
prior to A.L.A.'s death, during the period between the Title 9 dismissal and the
initiation of the guardianship matter, all prevented him from influencing the
future of the case. Specifically, M.Z. asserts if he had been included in the Title
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9 litigation, he would have advocated for greater participation by T.Z. and J.M.,
and against L.A.A.'s placement in a resource home. We are unpersuaded.
Not only was there the lack of presumption of prejudice on M.Z.'s behalf,
the facts do not support a finding of actual prejudice, and thus, a reason to
disturb the guardianship judgment. Indeed, as we noted, M.Z. was incarcerated
throughout the Title 9 litigation and the Division's objective was reunification
with A.L.A. Nothing in the record indicates reunification was not possible prior
to A.L.A.'s death. When A.L.A. passed away, M.Z. was represented by counsel
at two hearings, which ultimately resulted in dismissal of the Title 9 matter
without a determination of abuse or neglect. There is no dispute M.Z. was
represented by counsel throughout the Title 30 litigation. Additionally, he was
produced telephonically from prison in Florida and participated in the
proceedings.
In N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 255
(App. Div. 2009), we addressed whether "a parent's appeal of an order that
dismisses a Title 9 action brought by the Division . . . before . . . an adjudication
of abuse or neglect and entry of a final order of disposition is mooted by the
Division's filing of a Title 30 action for termination of parental rights." We
noted Title 9 and Title 30 matters are separate proceedings and the Division may
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file a Title 30 action without filing a Title 9 complaint or having obtained a
finding of abuse or neglect. Id. at 259-60 (citations omitted).
We also discussed the significance of a dismissal of a Title 9 action
without an adjudication regarding abuse or neglect.
[The Division]'s dismissal of a Title 9 action without an
adjudication that the parent has abused or neglected his
or her child has none of the adverse consequences of a
final order of disposition based on a finding of abuse or
neglect. Such a disposition, like the dismissal of any
other action by a plaintiff under Rule 4:37-1,
"adjudicates nothing," Malhame v. Borough of
Demarest, 174 N.J. Super. 28, 30 (App. Div. 1980)
(quoting Christiansen v. Christiansen, 46 N.J. Super.
101, 109 (App. Div. 1957)), and thus cannot provide a
predicate for relief against the defendant. Moreover,
the voluntary dismissal of an action "leaves the
situation so far as procedures therein are concerned the
same as though the suit had never been brought, thus
vitiating and annulling all prior proceedings and orders
in the case." A.B. Dick Co. v. Marr, 197 F.2d 498, 502
(2d Cir. 1952); accord Nat'l R.R. Passenger Corp. v.
Int'l Ass'n of Machinists & Aerospace Workers, 915
F.2d 43, 48 (1st Cir. 1990).
[Id. at 262-63.]
Thus, we held the appeal was moot under the circumstances presented, and
emphasized the parent's due process rights would be fully protected by the trial
of the Title 30 action. Id. at 264. We stated a Title 30 trial would:
afford . . . the opportunity . . . to contest the charges of
abuse or neglect or other harm to the child caused by
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the parental relationship, [the parent]'s willingness and
ability to address the causes of that harm, the adequacy
of remedial services [the Division] provided . . . , and
whether termination of . . . parental rights . . . would do
more harm than good. Moreover, [the Division] will
bear the burden of establishing the standards for the
termination of parental rights by "clear-and-
convincing-evidence" rather than the lesser burden of
proof by a "preponderance of the evidence" that would
apply in an action under Title 9.
[Id. at 264 (citing K.M., 136 N.J. at 557).]
Here, M.Z. did not appeal from the dismissal of the Title 9 litigation.
Regardless, because the Title 9 dismissal "adjudicate[d] nothing[,]" it had no
prejudicial effect on M.Z.'s rights in the guardianship proceeding. As we noted,
at the outset of the guardianship matter, the judge obtained the necessary
information for M.Z. to complete an application for the appointment of counsel,
and he was provided the same public defender who represented him during the
Title 9 proceedings. The Division sent a caseworker to Florida to meet with
M.Z. to discuss the case and arrange for his participation in the trial. M.Z.'s trial
counsel represented him throughout the guardianship matter and M.Z.
participated in the proceedings. At trial, M.Z.'s counsel offered a vigorous
defense of the Division's case, cross-examined its experts, and adduced
testimony from the T.Z. and J.M. in support of M.Z.'s defense. M.Z. does not
contest these facts.
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Furthermore, the record clearly indicates the Division had involved T.Z.
and J.M. from the onset of the litigation. As we noted, the Division contacted
J.M. immediately after L.A.A.'s removal and she indicated she was not
interested in caring for the child. The Division placed L.A.A. with T.Z. for a
brief period, but she indicated she no longer wanted to be considered as a
placement option. It was only after A.L.A.'s death and approval of the Division's
permanency plan of a termination of parental rights followed by adoption that
either T.Z. or J.M. expressed a serious interest in caring for L.A.A. Even then,
the Division was responsive and engaged J.M. with a visitation schedule and
multiple evaluations to determine whether a placement with her was viable.
Moreover, despite M.Z.'s contention that the disposition of the Title 9
matter made the guardianship litigation a formality, the record indicates the
Division's plan was adoption by J.M. The record demonstrates the permanency
plan changed after the Title 30 proceedings commenced and expert evaluations
were submitted—not during the transition from the Title 9 proceedings into the
guardianship. M.Z. was represented by competent counsel and was fully capable
of defending the guardianship and advocating for L.A.A.'s placement with a
grandparent. The facts do not support M.Z.'s claim the Division had not
thoroughly vetted and sought a placement with T.Z. or J.M. early in the
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25
proceedings, or that M.Z.'s advocacy for a relative placement at some unknown
point before A.L.A.'s death would have changed the trajectory of the litigation.
The record lacks evidence of an ineffective assistance of counsel to meet
either prong of the Strickland standard. To the extent we have not further
addressed M.Z.'s arguments on this account, it is because they are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
III.
Finally, we address M.Z.'s claims the Division failed to prove the third
prong of the best interests test. M.Z. argues the Division failed to meet its
burden to make reasonable efforts to provide services and did not adequately
assess relative placements in violation of its statutory burden. M.Z. argues the
clear and convincing standard requires proof the Division made reasonable
efforts to help the parent remedy the problems leading to the child's removal.
He alleges the Division ignored him until shortly before the trial, ignored T.Z.'s
interest in being a placement option for L.A.A., and failed to assist J.M. in
remedying the parenting deficiencies cited by Dr. Jeffrey.
Under N.J.S.A. 30:4C-15.1(a), the Division must prove by clear and
convincing evidence termination is in the best interest of the child. F.M., 211
N.J. at 447. The clear and convincing evidence standard is satisfied when, in
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26
the mind of the factfinder, there is a "firm belief or conviction as to the truth of
the allegations sought to be established, evidence so clear, direct and weighty
and convincing as to enable the fact finder to come to a clear conviction, without
hesitancy, of the precise facts in issue." N.J. Div. of Youth & Family Servs. v.
I.S., 202 N.J. 145, 168 (2010) (quoting In re Seaman, 133 N.J. 67, 74 (1993)
(citation, internal quotation and editing marks omitted)).
Pursuant to the "best interest of the child" standard, the Division must
prove by clear and convincing evidence:
(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. 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;
(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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[N.J.S.A. 30:4C-15.1(a).]
"Importantly, those four prongs are not 'discrete and separate,' but 'relate to and
overlap with one another to provide a comprehensive standard that identifies a
child's best interests.'" N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.
596, 606-07 (2007) (quoting In re Guardianship of K.H.O., 161 N.J. 337, 348
(1999)).
Under prong three, the court must consider whether the Division "made
reasonable efforts to provide services to help the parent correct the
circumstances which led to the child's placement outside the home[.]" N.J.S.A.
30:4C-15.1(a)(3). The Division's efforts must be analyzed "with reference to
the circumstances of the individual case[,]" including the parent's degree of
participation. In re Guardianship of DMH, 161 N.J. at 390 (citing In Re Tricia
& Trixie H., 126 N.H. 418 (1985)).
N.J.S.A. 30:4C-15.1(c) defines diligent efforts as those "attempts by an
agency authorized by the [D]ivision to assist the parents in remedying the
circumstances and conditions that led to the placement of the child and in
reinforcing the family structure[.]" The statute lists examples of "reasonable
efforts" at reunification, including but not limited to:
(1) consultation and cooperation with the parent in
developing a plan for appropriate services;
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(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.
[Ibid.]
Further, "[the Division]'s efforts in providing [services] must by their very
nature take into consideration the abilities and mental conditions of the
parents[,]" but the determination of reasonableness does not turn on the success
of those efforts. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super.
418, 442 (App. Div. 2001).
Relative placement is among many of the resources available to the
Division to satisfy its reasonable efforts obligation. Although there is no
presumption of favorability for relative placements, the assessment for such
placements help the Division demonstrate its reasonable efforts at family
reunification. See N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J.
Super. 568, 580-81 (App. Div. 2011). Additionally, while kinship legal
guardianship (KLG) is an alternative to termination of parental rights, it is only
available where the relative is unwilling to adopt. Id. at 579; see also N.J. Div.
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of Youth & Family Servs. v. T.I., 423 N.J. Super. 127, 130 (App. Div. 2011)
("[W]hen a caregiver in a case brought by the [Division] unequivocally asserts
a desire to adopt, the finding required for a KLG that 'adoption of the child is
neither feasible nor likely' cannot be met."); N.J. Div. of Youth & Family Servs.
v. P.P., 180 N.J. 494, 512-13 (2004) (where our Supreme Court stated KLG
should only be considered when adoption is not an option). "If the [Division]
determines that the relative is unwilling or unable to assume the care of the child,
the [Division] shall not be required to re-evaluate the relative." N.J.S.A. 30:4C-
12.1(b).
We reject M.Z.'s claims the third prong of the best interests test was not
met. There is no credible dispute M.Z. had not met L.A.A., played no role in
his life, and was incapable of parenting the child at any point during the
litigation or into the foreseeable future. Moreover, the record clearly
demonstrates the Division engaged A.L.A. with services aimed at reunification
when she was the only parent available to care for L.A.A. due to M.Z.'s
incarceration.
When the removal occurred, the Division immediately sought a relative
placement with T.Z. and J.M., who for different reasons each declined the
opportunity to be considered as placement options. When A.L.A. died and J.M.
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30
requested consideration as a placement option, the Division supported this
request by establishing a reasonable visitation schedule and multiple evaluations
to determine whether placement with J.M. was a viable option. The Division
engaged J.M. even though it had previously determined she was unwilling to
care for the child and was no longer statutorily required to consider her as a
placement option.
M.Z.'s argument also ignores the fact the Division assessed all available
relative placements and ruled them out because they were not viable parenting
options pursuant to the undisputed expert testimony. Indeed, Dr. Jeffrey
testified without rebuttal that J.M. suffered from behavioral deficiencies, had
narcissistic tendencies, and possessed no psychological connection with L.A.A.
The expert testimony proved J.M. suffered from adjustment disorder and would
be unable to mitigate the substantial harm L.A.A. would suffer if his relationship
with J.F. were severed.
The record amply supports the trial judge's prong three findings.
Moreover, the judge's findings as a whole are supported by substantial credible
evidence to warrant granting the judgment of guardianship.
Affirmed.
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