DCPP v. S.N.H. AND S.L., IN THE MATTER OF THE GUARDIANSHIP OF N.H. (FG-08-0051-18, GLOUCESTER 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NOT FOR PUBLICATION WITHOUT THE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-3440-20
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
S.N.H. (deceased),
Defendant,
and
S.L.,
Defendant-Appellant.
________________________
IN THE MATTER OF THE
GUARDIANSHIP OF N.H.,
a minor.
________________________
Argued August 30, 2022 – Decided September 7, 2022
Before Judges Haas, Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FG-08-0051-18.
Bruce P. Lee, Designated Counsel, argued the cause for
appellant (Joseph E. Krakora, Public Defender,
attorney; Bruce P. Lee, on the briefs).
Salima E. Burke, Deputy Attorney General, argued the
cause for respondent (Matthew J. Platkin, Acting
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Salima E.
Burke, on the brief).
Meredith Alexis Pollock, Deputy Public Defender,
argued the cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Meredith Alexis
Pollock, of counsel; Nancy P. Fratz, Assistant Deputy
Public Defender, of counsel and on the brief).
PER CURIAM
Appellant S.L. appeals from a July 1, 2021 order terminating his parental
rights and granting the Division of Child Protection and Permanency (Division)
guardianship of his son, N.H. We affirm.
N.H. was born in 2015 and has been in the Division's custody since his
second birthday. He suffers from numerous physical, neurological,
developmental, and behavioral conditions, including flaccid paralysis, cerebra l
palsy, asthma, club feet, failure to thrive, and autism. He is unable to walk
independently and requires leg braces, a wheelchair, mobile stander, and gait
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trainer. Unmonitored, N.H. can easily and severely injure himself simply by
attempting to ambulate. He is fed through a feeding tube, which must be
monitored. N.H. is treated by sixteen specialists who provide overlapping
medical care, which has been coordinated by his resource parents who intend to
adopt.
S.L. is disabled and receives monthly benefits from the Veterans
Administration (VA). His VA benefits are administered by a financial fiduciary.
He has a thirty-year history of mental health problems, including schizoaffective
disorder (bipolar type), depression, and suicidal ideations. He has been
voluntarily and involuntarily committed on several occasions. He has a history
of domestic violence and substance abuse, involving severe cocaine and crack
cocaine use. As a result, S.L. has been frequently incarcerated and on various
occasions unable to care for N.H.
In addition to the services provided for N.H., the Division deployed a
battery of services for S.L.'s benefit throughout this matter, including: substance
abuse, psychological, and psychiatric evaluations; referrals to intensive
outpatient treatment; family team meetings; visitation; counseling; parent
education programs; and drug screens. With a few exceptions, S.L. failed to
cooperate or complete the services provided.
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In March 2018, at the onset of the guardianship proceeding, the court
appointed a guardian ad litem (GAL) for S.L. at defense counsel's request. One
year later, S.L. executed an identified surrender of his parental rights to N.H.'s
half-sister. During the surrender proceeding the GAL advised the court S.L.
understood what was happening and was competent to complete the surrender.
S.L.'s counsel also represented that after speaking with S.L. and reviewing the
medical information, including the Division's forensic psychology expert's
report, S.L. could complete the surrender. The court also questioned the
Division's expert who testified and agreed, after interviewing S.L. and reviewing
his medical records. The parties declined to cross-examine the expert. The court
also questioned S.L., who testified he understood the nature of the pr oceedings.
In December 2019, S.L. moved to vacate the surrender, which the court
denied. However, in November 2020, N.H.'s resource parents committed to
adopting him—a plan his half-sister supported—and the court ultimately
vacated the identified surrender, reopened the guardianship, and sua sponte
appointed a GAL for S.L. The GAL investigated S.L.'s competency and issued
a report, provided in advance to the court and the parties, concluding S.L. did
not require the assistance of a guardian.
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In March 2021, the court held a hearing to review the GAL's report. The
GAL, S.L.'s counsel, Law Guardian, and the Division agreed S.L. was
competent. Thereafter, S.L. was questioned by his counsel under oath and
confirmed he understood the GAL was withdrawing from the case, that S.L. had
discussed the matter with counsel, and was satisfied with counsel's
representation. The court asked S.L. if he had any questions about the process
and S.L. responded he did not, and agreed he no longer needed a GAL and would
instead be working directly with counsel in defense of the guardianship matter.
Based on the testimony and no material dispute in fact, the court concluded S.L.
no longer required a GAL and granted the GAL's request to be relieved.
A two-day guardianship trial occurred in June 2021. The Division called
its caseworker, N.H.'s resource mother, S.L., and the expert. The Division also
admitted thirty-four exhibits into evidence. S.L.'s counsel also adduced
testimony from S.L. as the defense's sole witness. The trial judge found all the
witnesses credible and S.L partially credible.
The judge found the Division met by clear and convincing evidence all
four prongs of N.J.S.A. 30:4C-15.1(a). She concluded S.L. harmed, and would
continue harming, N.H. by not addressing his mental health and substance abuse
problems. She noted S.L.'s frequent hospitalizations made him unavailable to
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care for N.H. for periods at a time. The second statutory prong was met because
S.L. "is not able now and he won't be able in any reasonably foreseeable future
[to meet N.H.'s] needs . . . despite all the reasonable efforts of the Division
throughout the course of this child's placement . . . ." In addition to S.L.'s failure
to address his own problems, the judge found S.L. had no understanding of
N.H.'s medical needs, nor how to seek and coordinate his medical care, let alone
the willingness to do so.
The judge found the Division met the third statutory prong and recounted
the services offered to the family. Further, the Division considered alternatives
to the termination of parental rights. The judge listed the relatives the Division
explored as placement options, including the child's half-sister. However, the
resource parents utilized the services provided and assured N.H.'s needs were
met throughout the litigation. As a result, N.H.'s condition improved, and the
resource parents wished to adopt.
The judge concluded the fourth statutory prong was met and a termination
of parental rights followed by adoption would not do more harm than good. She
credited the Division's expert, who testified S.L. and N.H.'s bond was "weak to
moderate" and N.H. would not be at risk of long-term harm if the parental
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relationship were severed. Noting N.H. had been in placement "for more than
half of his life" the judge credited the expert's testimony describing
the resource parents' bond with the child as strong and
centrally important to him. He sees these folks as his
parents. They are his primary caretakers and have been
throughout this litigation. . . . [N.H.] would . . . sustain
severe and enduring harm if removed, [and] the loss of
the caretakers . . . would be traumatic.
Further, S.L. "would be unable to mitigate that harm and he wouldn't be able to
mitigate it in the foreseeable future . . . ."
S.L. raises the following arguments on appeal:
I. BECAUSE [THE DIVISION] PERPETUATED
THE FOSTER PARENTS' ERRONEOUS
CONCERNS THAT S.L. COULD LITIGATE "OVER
AND OVER AGAIN," AND BECAUSE THE FOSTER
PARENTS WERE MISINFORMED AGAINST THE
PERMANENT NATURE OF A [KINSHIP LEGAL
GUARDIANSHIP (KLG)] ARRANGEMENT, THE
FOSTER PARENTS' RELIANCE ON
MISINFORMATION TO CHO[O]SE KLG OVER
ADOPTION WARRANTS A REVERSAL AS A
MATTER OF LAW.
II. BECAUSE S.L.'S MEDICAL RECORDS
DEMONSTRATED A THIRTY-YEAR HISTORY OF
INVOLUNTARY COMMITMENTS, DELUSIONS[,]
AND HALLUCINATIONS, THE TRIAL COURT'S
[RULE] 4:26-2(b) RULING AGAINST A [RULE] 4:86
HEARING TO APPOINT A GUARDIAN WAS AN
ABUSE OF DISCRETION.
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a. The trial court's reliance on the
GAL's findings, at a March . . . 2021 [Rule]
4:26-2(b) hearing, was an abuse of
discretion because the GAL did not assess
S.L.'s decision-making abilities.
b. Even if the GAL had relied on [the
expert's] evaluations, the trial court's
decision would still have been an abuse of
discretion because the purpose of his
evaluation was to opine on parental
capacity, and because his assessment, as
[the Division]'s expert witness, lacked
independence.
III. S.L. WAS PROVIDED WITH INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN COUNSEL
NEGLECTED TO MOTION FOR MISTRIAL AND
REQUEST THE COURT DRAW AN[] ADVERSE
INFERENCE BECAUSE OF THE RESOURCE
FATHER'S ABSENCE AT TRIAL. (not raised below).
a. S.L.'s trial attorney provided
ineffective assistance of counsel by failing
to request the court to draw an adverse
inference that the resource father did not
want to adopt. (not raised below).
b. S.L.'s trial attorney provided
ineffective assistance of counsel by failing
to motion for mistrial. (not raised below).
IV. BECAUSE S.L. IS ONE HUNDRED PERCENT
DISABLED AND WAS APPOINTED A FIDUCIARY
BY THE VA, [THE DIVISION]'S FAILURE TO
PROPERLY SERVE S.L. UNDER [RULE] 4:4-4[]
WARRANTS REVERSAL AS A MATTER OF LAW.
(not raised below).
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V. BECAUSE [N.H.] LACKED COMPETENCE
TO WAIVE HIS RIGHT TO FINANCIAL SUPPORT
FROM S.L., THE COURT LACKED JURISDICTION
OVER [N.H.] TO TERMINATE S.L.'S PARENTAL
RIGHTS. IN THE ALTERNATIVE, THE COURT
FAILED TO CONSIDER WHAT [E]FFECT THE
LAW GUARDIAN'S WAIVER OF [N.H.]'S RIGHTS
TO FINANCIAL SUPPORT WOULD HAVE UPON
[N.H.]'S BEST INTERESTS UNDER PRONG FOUR
OF N.J.S.A. 30:4C-15.1(a), WHICH REQUIRES A
SHOWING THAT TERMINATION OF PARENTAL
RIGHTS WOULD NOT DO MORE HARM THAN
GOOD TO A SUBJECT CHILD IN GUARDIANSHIP
LITIGATION. (not raised below).
I.
Appellate review in termination of parental rights cases is limited. N.J.
Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014). We defer to the
factual findings underlying the trial court's decision if they are supported by
"'adequate, substantial, and credible evidence' on the record." N.J. Div. of Youth
& Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship
of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). "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) (citing Cesare v. Cesare, 154 N.J. 394, 413
(1998)). Reversal is warranted if the court's findings are "so wide of the mark
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that a mistake must have been made[.]" N.J. Div. of Youth & Fam. Servs. v.
L.J.D., 428 N.J. Super. 451, 476 (App Div. 2012) (quoting M.M., 189 N.J. at
279).
II.
The statutory best-interests test requires the Division to prove the
following four prongs 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;
(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.
[N.J.S.A. 30:4C-15.1(a).]
A.
In Point I of his brief, S.L. challenges the trial judge's finding regarding
the third prong. He argues the resource parents were persuaded by the Division
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to choose KLG over adoption, believing KLG was not a form of permanency for
N.H. We find no merit to this contention.
The record is clear the resource parents understood the difference between
KLG and adoption but were uncomfortable with the former because S.L. would
continue to litigate parenting decisions or seek to undo the KLG altogether, as
he attempted to do with the identified surrender. As argued in the Law
Guardian's brief, the resource parents' concerns were not mistaken. N.J.S.A.
3B:12A-6(e)(4) preserves a parent's right to visitation or parenting time as
determined by the court, and N.J.S.A. 3B:12A-6(f) permits a parent to file an
application for return of the child.
The resource mother's testimony shows she understood the differences
between KLG and adoption. She explained that she and her husband, who had
adopted twice before, at first hesitated to adopt N.H. because they were
concerned about his substantial care needs. However, the couple ultimately
agreed to adopt, and she explained their reasoning as follows: "We love [N.H.]
so much. And we have . . . good ties. And my husband's like, we can do this
. . . . It's not going to be easy but we've got this." The caseworker and the
expert's testimony echoed the resource mother's description of the decision -
making process. The caseworker also testified the Division provided the
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resource parents with its standard form outlining the differences between KLG
and adoption.
The record does not support S.L.'s contention that the resource parents'
path leading to adoption was borne of misinformation by the Divisi on.
Inasmuch as we are convinced the resource parents were not misled, KLG also
was not an option because adoption was feasible and likely under the facts of
this case. N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 508-10 (2004).
B.
In Point V of his brief, S.L. argues the trial judge's findings regarding the
fourth statutory prong were flawed. He asserts the judge failed to consider the
harms to N.H. by terminating parental rights, which in turn, would terminate his
right to financial support from S.L., including his VA benefits. He notes the
Law Guardian could not waive N.H.'s right to child support.
N.J.S.A. 30:4C-15.1(a)(4) "serves as a fail-safe against termination even
where the remaining standards have been met." N.J. Div. of Youth & Fam.
Servs. v. E.P., 196 N.J. 88, 108 (2008) (quoting N.J. Div. of Youth & Fam.
Servs. v. G.L., 191 N.J. 596, 609 (2007)). "The question ultimately is not
whether a biological mother or father is a worthy parent, but whether a child's
interests will best be served by completely terminating the child's relationship
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with that parent." Ibid. (quoting N.J. Div. of Youth & Fam. Servs. v. A.W., 103
N.J. 591, 610 (1986)).
"It also is widely understood that a 'child deeply needs association with a
nurturing adult' and that 'permanence in itself is an important part of that
nurture.'" Ibid. (quoting A.W., 103 N.J. at 610). N.J.S.A. 30:4C-15.1(a)(4) is
deemed satisfied "where it is shown that the bond with [the resource] parents is
strong and, in comparison, the bond with the natural parent is not as strong[.]"
In re Guardianship of K.H.O., 161 N.J. 337, 363 (1999). The Division "should
offer testimony of a 'well[-]qualified expert who has had [the] full opportunity
to make a comprehensive, objective, and informed evaluation' of the child's
relationship with both the natural parents and the [resource] parents." M.M.,
189 N.J. at 281 (quoting In re Guardianship of J.C., 129 N.J. 1, 19 (1992)).
At the outset, we note this argument was not raised at trial. However, we
will address it because guardianship matters are categorically matters of great
public interest. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)
(holding an appellate court need not consider questions not properly presented
to a trial court, unless the issue raised relates to the jurisdiction of the trial court
or concerns a matter of great public interest).
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We are unpersuaded by S.L.'s arguments. The entry of a judgment
granting guardianship does not terminate a parent's support obligation. See
N.J.S.A. 9:2-20 ("The judgment so entered, unless otherwise specified therein,
shall not affect the duties of the parents, custodian or guardian with respect to
support and maintenance of the child."). The judgment entered here did not
terminate S.L.'s support obligation. Even if it did, we are not convinced it would
undo the trial judge's prong four findings and the unrebutted expert testimony
ungirding the findings that a termination of parental rights would not do more
harm than good. Indeed, the Division's expert not only conducted two
psychological examinations of S.L. but performed two bonding evaluations. His
detailed testimony that N.H.'s bond with the resource parents was "strong" and
"centrally important" to the child, and that N.H. would suffer "a traumatic set of
losses" by losing his resource parents that S.L. would be unable to mitigate was
unrebutted.
III.
In Point II of his brief, S.L. challenges the court's decision to relieve the
GAL. S.L. argues the GAL's report was inadequate because he interviewed S.L.
by telephone and did not review his VA records or consider the fact he had a
financial fiduciary. S.L. argues the judge's reliance on the Division's expert was
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also error because the expert was biased in favor of the Division and the expert's
evaluation was for purposes of determining parental capacity not mental
capacity. S.L. asserts a competency hearing was required under Rule 4:86.
Pursuant to Rule 4:26-2, when a GAL is appointed for a party the court
directs the GAL to conduct an investigation to determine the party's "mental
capacity and then to make a recommendation to the court whether [his or] her
best interests require[] the filing of an action for a limited or general
guardianship . . . in accordance with Rule 4:86." S.T. v. 1515 Broad St., LLC,
241 N.J. 257, 277 (2020). "The [GAL's] recommendations are not binding on
the court; ultimately the court must make its own independent factfindings." Id.
at 278-79.
The overwhelming weight of the evidence shows S.L. was not mentally
incapacitated. As we recounted, the court twice appointed GALs who, after
investigating, advised the court S.L. did not need a guardian. Defense counsel
informed the court likewise on more than one occasion. The GAL explained he
interviewed S.L. by telephone due to COVID-19 restrictions. S.L. has not
shown how this impacted the GAL's recommendation. Furthermore, the court
questioned S.L. at the surrender hearing and at a hearing preceding the trial after
it vacated the surrender and he testified he did not require a guardian. The court
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also had the benefit of the Division's expert report and testimony, showing that
despite S.L.'s deficits, he understood the proceedings and was competent. The
fact S.L. had a financial fiduciary does not convince us he required a guardian,
because the scope of a financial fiduciary's duties is limited to managing a
veteran's financial benefits. 38 C.F.R. § 13.30. Indeed, at trial S.L. testified he
managed his social security disability funds himself. We discern no abuse of
discretion in the court's decision to relieve the GAL and let S.L. proceed to trial
with defense counsel.
IV.
In Point III of his brief, S.L. alleges ineffective assistance of counsel
because trial counsel did not ask the court for an adverse inference against the
Division due to the resource father's non-appearance at trial. He claims the
resource father's absence evidenced the fact he did not want to adopt N.H.
Additionally, S.L. argues counsel was ineffective because he did not seek a
mistrial on grounds that S.L. could not proceed to trial without a guardian.
In New Jersey Division of Youth and Family Services v. B.R., our
Supreme Court held parents who are the subject of a termination of parental
rights proceeding have the right to effective assistance of counsel. 192 N.J. 301,
304 (2006). Whether counsel rendered effective assistance to a parent is
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reviewed through whether "(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. '"
Id. at 307 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).
The failure to seek an adverse inference against the Division for the
resource father's absence did not constitute ineffective assistance of counsel
because the Division is not mandated to call resource parents to testify. N.J.
Div. of Child Prot. & Perm. v. M.M., 459 N.J. Super. 246, 275 (App. Div. 2019).
Even if this were the case, we have stated: "For an inference to be drawn from
the nonproduction of a witness it must appear that the person was within the
power of the party to produce and that his testimony would have been superior
to that already utilized in respect [of] the fact to be proved." State v.
Washington, 408 N.J. Super. 564, 577 (App. Div. 2009) (alteration in original)
(quoting State v. Clawans, 38 N.J. 162, 171 (1962)). Notwithstanding the
opportunity for the defense to call the resource father as a witness, his testimony
would have been cumulative from his wife's, the caseworker's, and the expert's
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testimony—all of whom described the resource parents' initial concerns and the
deliberation process leading to the decision to adopt N.H.
We likewise reject S.L.'s claims trial counsel was ineffective for not
seeking a mistrial over S.L.'s alleged incapacity. As we explained in section III,
the court did not abuse its discretion in finding S.L. was competent to proceed
to trial. Therefore, trial counsel was not ineffective for seeking mistrial on this
issue. Moreover, as the Division notes in its brief, if trial counsel had argued
S.L. lacked capacity it would have undermined the claim that he could parent
N.H. and the overall defense to the termination of parental rights.
S.L.'s claims do not convince us counsel rendered constitutionally
defective representation. Neither Strickland prong has been met.
V.
Finally, in Point IV of his brief, S.L. argues the Division should have
served his financial fiduciary because he was completely disabled. He asserts
the failure to do so meant the court lacked jurisdiction and mandates a reversal
of the guardianship judgment.
Although this argument was not raised before the trial judge, it goes to the
court's jurisdiction and therefore we must address it. Nieder, 62 N.J. at 234.
The guardianship complaint was served on S.L. personally in accordance with
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Rule 4:4-4. He was represented by counsel and two GALs who did not contest
the service issue and is arguably equitably estopped from asserting it now on
appeal. See Knorr v. Smeal, 178 N.J. 169, 178 (2003) (holding that equitable
estoppel is intended to "prevent injustice by not permitting a party to repudiate
a course of action on which another party has relied to his detriment.").
Regardless, there was no evidence the financial fiduciary did anything other than
administer S.L.'s VA benefits. For these reasons, this argument lacks sufficient
merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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