DCPP v. K.F. AND K.S.H., IN THE MATTER OF THE GUARDIANSHIP OF D.H. (FG-04-0120-21, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-2488-20
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
K.F.,
Defendant,
and
K.S.H.,
Defendant-Appellant.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF D.H.,
a minor.
_________________________
Argued February 28, 2022 – Decided March 17, 2022
Before Judges Fasciale and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FG-04-0120-21.
Ruth Harrigan, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Ruth Harrigan, 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).
Melissa R. Vance, Assistant Deputy Public Defender,
argued the cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Meredith Alexis
Pollock, Deputy Public Defender, of counsel; Melissa
R. Vance, of counsel and on the brief).
PER CURIAM
Following a Title 30 guardianship trial, the Family Part judge terminated
the parental rights of K.S.H. (Kevin) 1 and K.F. (Karen) to their then two-year-
old son D.H. (Dennis). Kevin appeals, whereas the Division of Child Protection
and Permanency (Division) and the Law Guardian urge that we uphold the April
16, 2021 order entered by Judge Francine I. Axelrad.2 Because we reject Kevin's
1
We use pseudonyms or initials to protect the confidentiality of the participants
in these proceedings. R. 1:38-3(d)(12).
2
Karen did not participate in any aspect of the litigation and has not filed an
appeal.
A-2488-20
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contentions that the Division failed to meet its statutory burden under the four-
prong best interests of the child test by clear and convincing evidence, we affirm.
I.
Kevin has been hearing impaired since he was six months old. He is
proficient in sign language and reading lips. In 2007, the Division first became
acquainted with Kevin in response to a referral relating to the oldest of his six
other children and had periodic contact with him thereafter due to referrals
involving his other children. In May 2019, the Division received a referral from
Virtual Hospital alleging Dennis was born with "neonatal abstinence syndrome"
and his "meconium tested positive for opiates and methadone." Karen admitted
to heroin use during her pregnancy, which Kevin admitted he was aware of but
described as "not that bad" and "going down." Kevin also admitted to weekly
heroin use but claimed he was enrolled in an outpatient substance abuse program
and had been drug-free for seven weeks.
Due to continued concern over Karen and Kevin's drug use and being
unable to implement a safety protection plan to supervise the parents'
interactions with Dennis, a Dodd removal 3 was conducted on June 7, 2019 when
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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the child was discharged from the hospital. Dennis was placed under the care
of the Division and placed in the home of resource parents because the Division
could not locate a relative willing to supervise.
After almost a year of periodic status reviews, parental visitation in-
person and virtual with Dennis due to the COVID-19 pandemic, drug screenings,
and psychological evaluations, on August 26, 2020, the judge accepted the
Division's permanency plan to terminate Karen and Kevin's parental rights
followed by adoption. In rendering her decision, the judge noted Kevin
completed outpatient substance abuse rehabilitation but was non-compliant with
the Division's random screens and that he tested positive for fentanyl. Kevin's
visitation with Dennis was sporadic, and the judge raised concerns about
information Kevin provided to a psychologist.
Prior to the guardianship trial, Kevin participated in a compliance hearing
and a case management conference. During the in-person guardianship trial held
on April 13 and 15, 2021, the judge arranged for two proceeding interpreters
and a certified deaf interpreter specialist, who noted on the record:
[T]he certified deaf interpreter will remain very close
to defense attorney . . . and . . . have clear visual access
to [Kevin] so that anytime he has a question or wants to
give information to his attorney he can use sign
language, give that to the certified deaf interpreter who
can then type it into a tablet and give that information
A-2488-20
4
directly to [defense counsel] without interrupting the
proceedings and the [c]ourt.
[(Emphasis added).]
Kevin did not appear on the first day of trial and failed to notify the judge
or the Division caseworker as to his non-appearance. Rasheedah Brown, the
caseworker assigned to the case since September 2020, testified she routinely
texted Kevin regarding his scheduled SODAT4 drug screen appointments;
communicated with him generally by text; and that he never requested
accommodations beyond those provided. In addition, Brown testified Kevin's
missed drug screens left the Division without information as to whether he was
stable enough to be reunited with Dennis. Brown also stated that Dennis was
"thriving" with his resource parents, who have cared for him since he was
released from the hospital.
On the second day of trial, Kevin contacted his counsel and advised "he
was too sick to attend" court. The Division presented Alan J. Lee, Psy.D., as its
psychological and bonding evaluation expert. Dr. Lee testified Dennis had "a
significant and positive psychological attachment and bond" to his resource
parents and would be at significant risk of severe and enduring harm if his
4
SODAT stands for "Services to Overcome Abuse Among Teenagers, Inc."
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relationship with them ended. The resource parents expressed their interest in
adopting Dennis to Dr. Lee. Because Kevin missed the second evaluation
session, Dr. Lee testified he was unable to make psychological findings about
Kevin; opine as to bonding between Kevin and Dennis; or state whether Kevin
could mitigate the risks of separating Dennis from his resource parents. Brown
was recalled to testify regarding the resource parents' interests in adopting
Dennis. Kevin did not present an expert witness and the Law Guardian did not
present any evidence.
Defense counsel then engaged Kevin in voir dire as to whether or not he
wanted to testify. Ultimately, Kevin chose to communicate with the judge and
interpreters via Zoom. Over Zoom, Kevin indicated, on the record, he did not
wish to testify but still wanted to visit Dennis and have contact with him. The
judge found Kevin knowingly and voluntarily waived his right to testify.
During defense counsel's summation, Kevin began "interrupting." In
response, the judge instructed the interpreters not to interpret Kevin's comments
because
he had the opportunity to testify. He chose not to. And
there will be no interruptions. We have been through
this at the case management conferences.
I have advised the interpreters that although
[Kevin] may be signing and they may feel it's their duty
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to tell the [c]ourt what he is signing, that I am absolving
them of that duty . . . because this is not a colloquy.
Later during summations, Kevin signed his phone was "about to die." In
response, the judge instructed Kevin to plug his phone in because the parties
were "going to continue with concluding [the] trial."
At the conclusion of summations, the interpreters memorialized on the
record Kevin had signed throughout counsels' summations, but the interpreters
had not interpreted his comments per the judge's direction. The judge noted
same and explained on the record:
[I]f this were a situation where someone was not
hearing impaired and they were in the courtroom and
they were interrupting – or on Zoom and they were
interrupting the arguments made by counsel, the [c]ourt
would give the admonition that they are not permitted
to interrupt.
We have this occur in many of these cases. I
understand they're emotional. And . . . in some cases
we actually have to mute people with the Zoom button
to stop the litigants from interrupting while the
attorneys are arguing because they don't like what the
attorneys are arguing.
If we're in the courtroom I have unfortunately
over the years that I've done this had to have sheriff's
officers remove the litigants when they become vocal
or abusive otherwise.
So I am not treating him any differently.
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On April 16, 2021, Judge Axelrad rendered a comprehensive oral decision
remotely. The judge held the Division had "met its burden of proving each of
the [four prongs] of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence."
In reviewing the first and second prongs, "[t]he child's safety, health or
development" and the parent's ability "to eliminate the harm facing the child"
respectfully, the judge noted Kevin's: (1) numerous positive tests for fentanyl;
(2) continuous denial of fentanyl use; (3) multiple positive test results for
marijuana; 5 (4) numerous missed drug screens; (5) knowledge regarding Karen's
prenatal heroin use; (6) missed psychological evaluations; (7) numerous missed
visits; and (8) inability to provide a plan for Dennis. Consequently, the judge
found Kevin "either unwilling, or unable, to place the best interest[s] of this
child first."
Additionally, the judge emphasized a delay in permanent placement would
add to the harm to Dennis. The judge specifically found the testimony of both
Dr. Lee and Brown to be "credible." And, the judge noted, crediting Dr. Lee's
and Brown's testimony, "Dennis was thriving in his resource parents' care and
5
The judge recognized New Jersey decriminalized marijuana in November 2020
but noted Kevin's consistent use of marijuana was "not impacted by the recent
legislation." "[T]he concern is, or one of the concerns in this case, is that he's
an addict in treatment to the extent that he's been counseled essentially that any
substance is dangerous."
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they were meeting all his needs." Dennis had a "significant and positive
attachment" with the resource parents and severing that relationship would put
him at risk for psychological harm. "[P]ermanency was critical for [Dennis] to
continue to meet his milestones."
In reviewing the third prong, the Division's reasonable efforts to help and
the court's consideration of termination alternatives, the judge noted "the
Division [had] made more than reasonable efforts and accommodations to
[Kevin] of services," including: (1) supervised visits; (2) substance abuse
evaluations; (3) SODAT screenings; (4) psychological evaluations; (5) bonding
evaluations; (6) cognitive behavioral therapy; and (7) adjustments to the
visitation schedule to accommodate Kevin's schedule. Additionally, Judge
Axelrad noted she and the Division had made additional accommodations with
regard to Kevin's hearing impairment by providing: (1) interpreters for
proceedings, evaluations, and therapy; and (2) text message notifications and
reminders of appointments. The judge noted Kevin had not requested any
additional accommodations.
In considering alternatives to termination, the judge found "the Division
had engaged multiple times with each of the potential caregivers proposed" by
Kevin and Karen, including Dennis's grandmother, grandfather, and aunts, every
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one of whom declined. In response to Kevin's proposal of a kinship legal
guardian (KLG) with the resource parents, the judge noted "the record clearly
showed the resource parents had been informed about the differences between
adoption and KLG, and wished to adopt."
In reviewing the fourth prong, whether the "[t]ermination of parental
rights will not do more harm than good," the judge explained the test of harm is
not whether "no harm will befall the child," but rather whether, after "balancing
the two relationships, the child will suffer a greater harm from the termination
of ties with his natural parents than from . . . the permanent disruption of his
relationship with his foster parents." (Quoting In re Guardianship of K.H.O.,
161 N.J. 337, 355 (1999)).
The judge elaborated "the record clearly demonstrates that [Dennis] will
not suffer a greater harm from the termination of ties with [Kevin and Karen]
than from the permanent disruption of his relationship with his [resource]
parents." The resource parents "are essentially the only parents [Dennis] knows,
the only stable home he knows, the only secure home he knows, the only two
people who meet all of his needs" and are "there for him all of the time."
Therefore, the judge held Dennis "was entitled to the permanency and stability
that adoption by them would provide."
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Following the trial and decision, Judge Axelrad entered an order
terminating parental rights. This appeal followed. On appeal, Kevin argues:
POINT I
THE TRIAL JUDGE ERRED IN HER CONCLUSION
THAT [THE DIVISION] SATISFIED THE
REASONABLE EFFORTS STANDARD IN THE
BEST INTERESTS TEST BECAUSE IT FAILED TO
PROVIDE SERVICES THAT WERE REASONABLE
UNDER ALL THE CIRCUMSTANCES AND THE
COURT DID NOT EXPLORE ALTERNATIVES TO
TERMINATION.
A. The Trial Judge Erred In Her Conclusion That [The
Division] Presented Clear And Convincing Evidence
That It Made Reasonable Efforts Toward Reunification
And Satisfied The Third Prong Of The Best Interest
Test.
B. The Trial Judge Erred In Her Conclusion That [The
Division] Satisfied The Third Prong Of The Best
Interest Test Because It Provided Services That Were
Not Appropriate Under The Circumstances And That
Violated The Provisions Of The Americans With
Disabilities Act (42 U.S.C. § 12101 to § 12213).
C. The Trial Judge Failed To Consider Alternatives To
Termination, Warranting Reversal.
POINT II
REVERSAL IS WARRANTED BECAUSE THE
EVIDENCE PRESENTED DID NOT SUPPORT THE
LOWER COURT'S CONCLUSION THAT
DENNIS'[S] SAFETY, HEALTH, OR
DEVELOPMENT WAS OR WILL CONTINUE TO BE
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ENDANGERED BY THE PARENTAL
RELATIONSHIP.
POINT III
THE COURT'S CONCLUSIONS THAT KEVIN WAS
UNABLE OR UNWILLING TO ELIMINATE THE
HARM FACING HIS CHILD AND UNWILLING OR
UNABLE TO PROVIDE A SAFE AND STABLE
HOME ENVIRONMENT WERE ERRONEOUS.
POINT IV
REVERSAL IS WARRANTED BECAUSE THE
EVIDENCE PRESENTED DID NOT SUPPORT THE
LOWER COURT'S CONCLUSION THAT
TERMINATION OF PARENTAL RIGHTS WOULD
NOT DO MORE HARM THAN GOOD.
POINT V
KEVIN WAS DENIED DUE PROCESS DURING
THE PROCEEDINGS DUE TO COMMUNICATION
BARRIERS RESULTING FROM THE VIOLATION
OF COURT RULES GOVERNING THE RIGHTS OF
HEARING[-]IMPAIRED LITIGANTS AND
PANDEMIC DIRECTIVES.
POINT VI
TRIAL COUNSEL'S FAILURE TO ADVOCATE FOR
HIS DEAF CLIENT AND OBJECT TO THE
COURT'S VIOLATION OF COURT RULES AND
DIRECTIVES REGARDING THE USE OF
INTERPRETERS DURING THE PANDEMIC AND
THE ADMISSION OF P-29 [KLG/ADOPTION FACT
SHEET] CONSTITUTED INEFFECTIVE
A-2488-20
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ASSISTANCE OF COUNSEL AND WARRANTS
REVERSAL.
II.
In reviewing a decision by a trial court to terminate parental rights, we
give deference to family courts' 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(quoting Rova Farms Resort, Inc. v. Invs. 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 Axelrad carefully reviewed the evidence presented, concluding the
Division met, by clear and convincing evidence, all the legal requirements to
sustain a judgment of guardianship. Her oral 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 K.H.O.; 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
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substantially on the grounds expressed in the judge's comprehensive and well-
reasoned decision. We highlight the following analysis of each best interest
prong.
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
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)).
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"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.
As to prong two, which addresses considerations under prong one, the
Division must prove "[t]he parent is unwilling or unable to eliminate the harm
facing the child 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." M.M., 189 N.J. at 280 (quoting N.J.S.A. 30:4C-
15.1(a)(2)).6
6
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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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.
Kevin argues the judge's legal conclusion that the Division satisfied the
first prong was erroneous because the judge's decision was not based on a
finding of abuse or neglect but rather presumptions relative to his "denial of his
own substance abuse, noncomplian[ce] with services, and [inability] to address
[Dennis]'s needs consistently." We disagree because Kevin's arguments are not
an accurate reflection of the record.
The first prong is clearly and convincingly satisfied where a child is "born
drug-addicted," which requires hospitalization. K.H.O., 161 N.J. at 351-52; see
also F.M., 211 N.J. at 449 ("A parent has the obligation to protect a child from
harms that can be inflicted by another parent."). Such harm, which "threatens
the child's health and will likely have continuing deleterious effects on the
child," is reinforced by the second prong, i.e., a parent's inability to take
responsibility. K.H.O., 161 N.J. at 352. "[P]arental dereliction and
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irresponsibility, such as the parent's continued or recurrent drug abuse, the
inability to provide a stable and protective home, the withholding of parental
attention and care, and the diversion of family resources in order to support a
drug habit," are indicative of "neglect and lack of nurture for the child." Id. at
353.
A parent's failure "to attend evaluations and visits with" his or her ch ild
may be evidence of harm. N.J. Div. of Child Prot. & Permanency v. A.S.K.,
457 N.J. Super. 304, 327 (App. Div. 2017). The Court has stressed that harm
includes the denial of "the attention and concern of a caring family[,]" which it
considers "the most precious of all resources." D.M.H., 161 N.J. at 379 (quoting
A.W., 103 N.J. at 613). "A parent's withdrawal of that solicitude, nurture, and
care for an extended period of time is in itself a harm that endangers the health
and development of a child." Id. at 379. Such a withdrawal is not "inadequate
parenting;" rather, it is a "failure to provide even minimal parenting." Ibid.
(citing A.W. 103 N.J. at 606-07). A parent's failure to provide a "permanent,
safe, and stable home" engenders significant harm to the children. Id. at 383.
As such, a parent's failure to comply with a Family Part's specific requirements
to reunite with his or her child reveals "the very low priority" the parent has "to
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building or even merely staving off the termination of his [or her] parental
relationship with [the child]." A.S.K., 457 N.J. Super. at 327.
Here, there was substantial and credible evidence that Kevin's parental
relationship with Dennis was detrimental to the child's safety, health, and
development. Dennis was born drug-addicted, and "suffered withdrawal."
Because Kevin was aware of Karen's use throughout her pregnancy, he had an
obligation to protect Dennis from her abuse but did not. F.M., 211 N.J. at 449.
Also, Kevin's inability to take responsibility for the harm he caused
Dennis reinforces the judge's finding of a continuous risk of harm caused by
both parent's drug usage and supports the court's finding of Kevin's inability to
eliminate the harm. See K.H.O., 161 N.J. at 352-53. As highlighted by the
judge, for approximately two years after Dennis's hospitalization, Kevin
continued to test positive for fentanyl and marijuana, and he continued to deny
his fentanyl use even in the face of positive test results.
[Kevin] did not admit to any substance abuse concerns.
He claimed the positive fentanyl screens were a
mistake. And this is June of 2020. He had . . . he had
a positive fentanyl in August of 2020, two months after.
He denied he needed drug treatment or that the Division
even recommended it. He blamed others. . . . He
denied—he blames others for his problems and
difficulties, does not take responsibility of concern that
much of the information provided to the evaluator was
contrary to the documented information.
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Finally, Kevin's failure "to attend evaluations and visits with" Dennis may
be considered evidence of risk of continuous harm and Kevin's unwillingness to
eliminate said harm. A.S.K., 457 N.J. Super. at 327. Despite the judge's clear,
specific, and consistent orders, Kevin continuously missed his screens, visits,
and psychological evaluations. On June 1, 2020, upon granting the Division's
request to extend the goal of reunification by three months, the judge again
provided Kevin with specific requirements if he wanted to be reunited with
Dennis, namely: (1) completing a psychological evaluation; (2) attending visits
consistently; (3) develop a childcare plan; (4) remain compliant with drug
treatment; and (5) attend random urine screens.
Between June 1 and August 26, 2020, however, Kevin tested positive,
missed his scheduled drug screening, and missed or cancelled one-half of his
visits. Accordingly, there was clear and convincing evidence to support the
judge's finding the Division satisfied prongs one and two by clear and
convincing evidence and that a continued parental relationship with Kevin
would harm Dennis.
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
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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
"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
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must encourage, foster and maintain the bond between
the parent and child as a basis for the reunification of
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, in part, 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) to (b). Also, in July
2021, L. 2021, c. 154, § 4 amended the laws pertaining to the KLG Act, N.J.S.A.
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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).
"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). "[T]he 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).
Kevin contends the judge erred in finding the Division had made
reasonable efforts toward reunification because the Division provided services
that violated Title II of the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12101 to 12213, and the judge failed to consider alternatives to termination.
Under the ADA and Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794, reasonable efforts require the Division to ensure a parent with a
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disability is not excluded from participating in or denied the benefits of the
agency's services, programs, or activities because of his or her disability. 42
U.S.C. § 12132; see also 28 C.F.R. § 35.130(b)(1). "This principle can require
the provision of aids, benefits, and services different from those provided to
other parents . . . where necessary to ensure an equal opportunity to obtain the
same result or gain the same benefit, such as family reunification." U.S. Dep't
of Health & Hum. Servs. & U.S. Dep't of Just., Protecting the Rights of Parents
and Prospective Parents with Disabilities: Technical Assistance for State and
Local Child Welfare Agencies and Courts under Title II of the Americans with
Disabilities Act and Section 504 of the Rehabilitation Act, (Technical Assis-
tance) 1, 4-5 (Aug. 2015), https://www.hhs.gov/sites/default/files/disability.pdf.
The provision of aids, benefits, and services required to effectively
communicate with a deaf individual "will vary in accordance with the method
of communication used by the individual; the nature, length, and complexity of
the communication involved; and the context in which the communication is
taking place." 28 C.F.R. § 35.160(b)(2). Depending on the communication, a
handwritten note or text may suffice. See Technical Assistance at 11. An
agency must "give primary consideration to the choice of aid or service
requested by the person who has a communication disability." U.S. Dep't of
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Just., ADA Requirements: Effective Communication, 1, 6 (Jan. 2014),
https://www.ada.gov/effective-comm.pdf.
A violation of the ADA, however, "does not provide a defense to a
termination of parental rights proceeding." N.J. Div. of Youth & Fam. Servs. v.
A.G., 344 N.J. Super. 418, 442 (App. Div. 2001). A parent's ADA status and
respective "limitations are indirectly addressed by the Division's efforts to
provide services to help the parents correct the circumstances which led to [the
Division's involvement] and consider the alternatives to termination of [his] or
her parental rights." Ibid. The Division must consider the parent's disability in
its reasonable efforts just as it would any other unique circumstance of a case.
See D.M.H., 161 N.J. at 390-91.
In essence Kevin argues, the Division: (1) "failed to refer [him] for an
initialized assessment of his disability"; (2) failed to make reasonable
accommodations for his hearing impairment; and (3) "failed to explore sibling
visits for Dennis."7
7
Kevin also argues the Division "placed Dennis with hearing resource parents
so he did not learn to communicate via sign language." Kevin provides no case
law or statute to support his argument that the Division is required to place
children of parents with disabilities with resource parents with similar
disabilities.
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With respect to Kevin's first argument, the ADA has a "basic requirement
that the need of a disabled person be evaluated on an individual basis ." PGA
Tour, Inc. v. Martin, 532 U.S. 661, 690 (2001). In New Jersey Division of Child
Protection and Permanency v. T.D., we held the Division failed to meet its
obligation of reasonable efforts because the Division did not initially assess the
extent of the parent's disability—multiple sclerosis (M.S.)—and take that into
account when providing services. 454 N.J. Super. 353, 365 (App. Div. 2018).
We stated the Division should have obtained the parent's medical records "as to
potential side effects and limitations of functions as it pertains to [the parent's]
parenting." Ibid.In the matter under review however, an initial assessment was not required
because it is undisputed Kevin has a full hearing impairment, and it was
unnecessary for the Division to perform because the limitations of full hearing
impairment do not vary. More importantly, unlike in T.D., where the parent's
M.S. was assumed to impair her ability to parent, Kevin's hearing impairment
"was not assumed to impair [his] parenting."
Kevin also argues the Division did not make reasonable efforts to
accommodate his hearing impairment. The provision of aids, benefits, and
services required to effectively communicate with a deaf individual, however,
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"will vary in accordance with the method of communication used by the
individual; the nature, length, and complexity of the communication involved;
and the context in which the communication is taking place." 28 C.F.R. §
35.160(b)(2). In other words, the method of communication does not matter so
long as the method will reasonably and effectively communicate with the deaf
individual.
Here, Brown testified she typically communicated with Kevin via text
messaging and through Karen. See also Technical Assistance at 12 (permitting
the Division to "rely on adults accompanying individuals with disabilities to
interpret"). The text messages included routine reminders of Kevin's upcoming
visits, SODAT screenings, and evaluations. The record shows Kevin frequently
responded to Brown's text messages, and he never requested an accommodation
other than what was provided by the Division. We are convinced the Division
made reasonable efforts to ensure Kevin was not excluded from participating in
or denied the benefits of its services, programs, or activities because of his
disability. We also conclude the judge scrupulously followed the protocols for
sign language interpreters and exercised "reasonable control over the mode and
order of interrogating witnesses and presenting evidence" under Rule 611(a) .
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Kevin also asserts the Division "failed to explore sibling visits for
Dennis." N.J.S.A. 9:6B-4(f) provides "[a] child placed outside his [or her] home
shall have the" right "to visit with the child's sibling[s] on a regular basis and to
otherwise maintain contact with the child's sibling if the child was separated
from his [or her] sibling upon placement outside his home." (Emphases added).
Here, the Division did not separate Dennis from his siblings. Kevin has a final
restraining order barring him from having contact with his oldest three children
and his other three children who live out-of-state. Moreover, Dennis and his
siblings are not part of the same household and, consequently, were not
separated upon Dennis's placement with his non-relative resource parents.
As correctly noted by the judge, "none of these siblings are in the custody
of the Division, meaning the Division would not have control over sibling
visits." "[T]here was never any discussion with regard to [sibling visits]. And
again[,] had it been raised it would have been problematic because these siblings
are not within the control of the Division. But that's never been an issue,
therefore I am disposing of that issue right up front." Therefore, the Division
was not required to explore sibling visits for Dennis.
Finally, under prong three, Kevin argues the judge failed to consider
alternatives to termination. Specifically, Kevin argues the judge: (1) did not
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evaluate whether the Division fully explored relative placements for KLG or
KLG with the resource parents; and (2) did not consider recent statutory changes
that make "kinship care the preferred resource."8
Under prong three, an alternative to termination of parental rights is KLG.
KLG allows a relative to become the child's legal guardian and commit to care
for the child until adulthood, without stripping parental rights. N.J. Div. of
Youth & Fam. Servs. v. P.P., 180 N.J. 494, 508 (2004). The Legislature created
this arrangement because it found "that an increasing number of childr en who
cannot safely reside with their parents are in the care of a relative or a family
friend who does not wish to adopt the child or children." N.J. Div. of Youth &
Fam. Servs. v. L.L., 201 N.J. 210, 222-23 (2010).
Prior to July 2, 2021, KLG was considered "a more permanent option than
foster care when adoption '[was] neither feasible nor likely.'" P.P., 180 N.J. at
512-13 (emphasis added) (quoting N.J.S.A. 3B:12A-6(d)(3) to (4)). "[W]hen a
caregiver . . . unequivocally assert[ed] a desire to adopt," the standard to impose
8
Kevin also argues the record was insufficient to support the Family Part's
finding that the resource parents were interested in adopting Dennis because
"[t]he only evidence at trial . . . came from second-hand representations from
. . . Brown and Dr. Lee." Kevin makes a substantially similar argument under
the fourth prong, claiming the resource "parents did not testify at the
guardianship trial that they were committed to adopting Dennis."
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28
a KLG was not satisfied because the party seeking a KLG arrangement would
not be able to show that adoption was neither feasible nor likely. N.J. Div. of
Youth & Fam. Servs. v. T.I., 423 N.J. Super. 127, 130 (App. Div. 2011). In
other words, when permanency through adoption was available to a child, KLG
could not be used as a defense to the termination of parental rights. N.J. Div. of
Youth & Fam. Servs. v. D.H., 398 N.J. Super. 333, 341 (App. Div. 2008).
On July 2, 2021, however, the Legislature enacted L. 2021, c. 154, which,
in part, removed the KLG requirement that adoption be "neither feasible nor
likely." P.P., 180 N.J. at 512-13 (emphasis added) (quoting N.J.S.A. 3B:12A-
6(d)(3) to (4)). This means KLG may now remain a valid defense to the
termination of parental rights. D.H., 398 N.J. Super. at 341. Here, Kevin argues
"[r]etroactive application of this legislative change is warranted by the
legislative intent expressed in the plain language of the statute, given that L.
2021, c. 154 was specifically written to take effect immediately." In response,
the Division argues: (1) "this case was decided in April—before the
amendments' July 2 enactment and effective date"; and (2) the amendments are
not applicable here because there was no KLG alternative available.
Regardless of whether the amendment applies retroactively, a KLG
defense requires a valid KLG alternative. See D.H., 398 N.J. Super. at 341.
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Despite Kevin's contentions to the contrary, the judge evaluated whether the
Division fully explored relative placements for KLG. Based on Kevin and
Karen's recommendations, the Division initially considered Dennis's
grandmother, grandfather, and aunts, but none were able or willing to supervise
Dennis.
The Division, however, was not obliged to identify and locate relatives
unidentified by the parents. K.L.W., 419 N.J. Super. at 582. "[A] parent
can[not] expect the Division to locate a relative with no information or . . . wait
until the eve of the guardianship trial to identify a relative who is willing to
adopt." Ibid. As such, the Division was not required to consider Dennis's
siblings prior to terminating Kevin's parental rights because prior to trial, the
record demonstrates Kevin never recommended Dennis's siblings as relative
placements. Thus, the Division met the third prong by clear and convincing
evidence.
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 [a]s an important consideration." M.M., 189 N.J. at 281. "The
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30
question to be addressed under th[is] 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.
Kevin challenges the judge's prong four findings arguing termination of
his parental rights will do more harm than good. He contends the Division failed
to provide a bonding evaluation from Dr. Lee, or any other expert, as to his bond
with Dennis. Additionally, Kevin claims the bonding report could not be
completed due to the Division's "failure to accommodate [his] need for
numerous translators and the extra time that takes."
The judge considered Dr. Lee's testimony that he has conducted
evaluations before with professional interpreters and he customarily allots
almost twice as much time for an evaluation utilizing an interpreter. Dr. Lee
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31
testified two professional interpreters were provided by the Division for Kevin's
appointment, but he arrived over thirty minutes late. In addition, Dr. Lee
explained that Kevin "frequently discussed and interjected many topics"
tangential to the evaluation. Another appointment was scheduled by Dr. Lee
with Kevin to finish the evaluation at his convenience, but he did not attend.
We have held where a parent's bonding evaluation is not available because
of the parent's failure to attend an evaluation, the court may review the
uncontradicted testimony of the Division's expert regarding the expert's bonding
evaluation of the child and the resource parents. A.S.K., 457 N.J. Super. at 329-
30. The record supports that finding under prong four.
III.
Next, Kevin argues the resource "parents did not testify at the
guardianship trial that they were committed to adopting Dennis." It is not
unusual for neither resource parent to testify in guardianship litigation. N.J.
Div. of Child Prot. & Permanency v. M.M., 459 N.J. Super. 246, 266 (App. Div.
2019). Therefore, evidence of "the communications by and with [the resource
parents] concerning adoption and KLG are all hearsay statements." Ibid.A belated objection to a resource parent's hearsay statements "is barred by
the invited error doctrine." N.J. Div. of Child Prot. & Permanency v. J.D., 447
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N.J. Super. 337, 348 (App. Div. 2016). The invited error doctrine "operates to
bar a disappointed litigant from arguing on appeal that an adverse decision
below was the product of error." N.J. Div. of Youth & Fam. Servs. v. M.C. III,
201 N.J. 328, 340 (2010) (quoting Brett v. Great Am. Recreation, 144 N.J. 479,
503 (1996)). The belated objection would otherwise deprive the litigant's
adversary the opportunity to: (1) overcome the objection; (2) take steps to satisfy
the evidentiary requirements needed to admit the evidence; or (3) present
alternative evidence. Id. at 341. We will not reverse the evidence's admission
unless the appellant establishes the admission constituted plain error. J.D., 447
N.J. Super. at 349-50 (citing R. 2:10-2).
"[H]earsay[,] subject to a well-founded objection[,] is generally evidential
if no objection is made." Id. at 348-49. We have recognized:
[A] party is free to waive objection to the admission of
hearsay evidence. In some cases, parties may have no
reason to question the accuracy of such hearsay, or may
make "a strategic decision to try the case based on the
documents, instead of possibly facing a witness's direct
testimony."
[Id. at 349 (alteration in original) (quoting N.J. Div. of
Child Prot. & Permanency v. N.T., 445 N.J. Super. 478,
503 (App. Div. 2016)).]
A party who fails to object to the admittance of evidence, effectively consents
to its admission. M.C. III, 201 N.J. at 341-42, 350 (affirming the Family Part's
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33
consideration of embedded hearsay in evidence admitted without objection by
defense counsel). As such, we presume the Family Part "appreciates the
potential weakness of such proofs, and takes that into account in weighing the
evidence." J.D., 447 N.J. Super. at 349.
Here, Kevin failed to object to the testimony of Brown or Dr. Lee, both
confirming the resource parents' interest in adopting Dennis. Kevin therefore
consented to the admittance of the testimonial evidence, including the resource
parents' hearsay statements. M.C. III, 201 N.J. at 341. As a result, Kevin is
barred from arguing on appeal that the admission of the testimony of Brown and
Dr. Lee constituted error. Id. at 340-41.
Kevin also argues the judge deprived him of his due process protections.
Both the United States and New Jersey constitutions provide "a 'fundamental
guarantee of due process,'" which is "implicated 'whenever an individual risks
governmental exposure to a "grievous loss."'" S.C. v. N.J. Dep't of Child. &
Fams., 242 N.J. 201, 230 (2020) (first quoting Jamgochian v. State Parole Bd.,
196 N.J. 222, 239 (2008); and then quoting State in Interest of D.G.W., 70 N.J.
488, 501 (1976)).
Our Court has "repeatedly affirmed that parental rights are fundamental
and constitutionally protected." N.J. Div. of Youth & Fam. Servs. v. A.R.G,
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179 N.J. 264, 285–86 (2004) (citing Moriarty v. Bradt, 177 N.J. 84, 109 (2003)).
Termination of parental rights implicates due process protections. Due process
protections require, at a minimum, adequate notice and a meaningful
opportunity to be heard. Id. at 286. Although parental rights' protections "are
tempered by the State's parens patriae responsibility to protect the welfare of
children. . . . The court's authority to remove children from the custody of their
parents must be exercised with scrupulous adherence to procedural safeguards."
Ibid. (citations omitted).
To determine whether a parent was afforded procedural
due process in a termination proceeding, . . . . the court
must balance three factors: (1) the private interest that
will be affected by the official action; (2) the risk that
there will be an erroneous deprivation of the interest
through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards;
and (3) the governmental interest involved, including
the added fiscal and administrative burdens that
additional or substitute procedures would require.
[N.J. Div. of Child Prot. & Permanency v. K.S., 445
N.J. Super. 384, 390-91 (App. Div. 2016) (internal
quotation marks omitted).]
We have recognized "a parent's private interest in maintaining some
relationship with his or her children is 'far more precious than any property
right.'" Id. at 391 (quoting In re Adoption of J.E.V., 442 N.J. Super. 472, 481
A-2488-20
35
(App. Div. 2015)). However, "[c]hildren are entitled to permanency, which at
times may restrict a parent's [constitutional] right." Ibid.Kevin argues the judge denied him both notice and a meaningful
opportunity to be heard by failing "to abide by pandemic-related directives" and
provide "adequate language supports for interpretation." Specifically, Kevin
argues: (1) he "was denied in-person hearings for his case management
proceedings," pursuant to Administrative Directive #12-20;9 and (2) the first day
of trial was not adjourned nor were virtual accommodations "provided until after
testimony was concluded on the second day of trial," pursuant to Addendum to
Directive #1-17.10 Again, we disagree.
First, Kevin was not denied in-person hearings. Per Administrative
Directive #12-20, trial courts were required to "proceed[] with remote video and
phone options instead of in-person appearances," unless the matter required "the
consent of all parties." Both "termination of parental rights trials" and "hearings
9
Administrative Directive #12-20, "Principles and Protocols for Virtual Court
Operations During the COVID-19 Coronavirus Pandemic" (Apr. 27, 2020); but
see Administrative Directive #06-21, "COVID-19 – Protocols for Matters that
Cannot Proceed in a Remote Format Without Consent" (Feb. 23, 2021).
10
Addendum to Directive #1-17, "COVID-19 Pandemic-Affirmation and
Expansion of the New Jersey Judiciary Language Access Plan for Remote Court
Events" (Jun. 18, 2020).
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for an . . . appointment of a permanent guardian" were listed as such exceptions.
Ibid.The record is devoid of a specific instance wherein Kevin requested an in-
person hearing. See Administrative Directive #6-21 (requiring a party's
objection to proceeding remotely to be memorialized on the record). Rather, the
record reflects Kevin's repeated consent to conducting his hearings virtually.
The judge did not fail to abide by Administrative Direction #12-20 because
Kevin consented to virtual hearings instead of in-person appearances.
We are convinced Kevin was not denied meaningful participation at the
in-person trial. "Procedural due process standards require the opportunity for
meaningful participation by the person at risk of limitation" but does "not confer
a constitutional right of confrontation or mandate a parent's presence at the
trial." Div. of Youth & Fam. Servs. v. M.Y.J.P., 360 N.J. Super. 426, 467, 468
(App. Div. 2003). Meaningful participation entitles a parent "to every
reasonable opportunity to produce evidence." K.S., 445 N.J. Super. at 394. A
parent may not be deprived "of his or her right to testify [at trial] to keep his or
her children." Id. at 392. Thus, a parent is "afforded due process where the
parent receives notice, is represented by counsel, and is given an opportunity to
testify by telephone or deposition." M.Y.J.P., 360 N.J. Super. at 468. Based
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37
upon our careful review of the record, we are satisfied Kevin was provided a
reasonable opportunity to a meaningful participation at trial.
IV.
Finally, we address Kevin's claim that his attorney was ineffective for
failing to: (1) object to the admission of the KLG/Adoption Fact Sheet; (2)
request an adjournment in response to Kevin's illness; and (3) object "to the
blatant disregard of court rules and directives regarding the use of interpreters."
"[A] defendant has a right to [the effective assistance of] counsel when a
complaint is filed against him or her charging abuse and neglect and threatening
the individual's parental rights." N.J. Div. of Youth & Fam. Servs. v. B.H., 391
N.J. Super. 322, 345 (App. Div. 2007) (citing N.J.S.A. 9:6-8.43(a)). In
determining whether that right has been violated, we apply the test as set forth
in Strickland v. Washington, 466 U.S. 668 (1984). Id. at 346; see N.J. Div. of
Youth & Fam. Servs. v. B.R., 192 N.J. 301, 308-09 (2007) (adopting the
Strickland test in parental termination cases).
Specifically,
(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
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38
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different."
[B.R., 192 N.J. at 307 (quoting Strickland, 466 U.S. at
694).]
The Strickland standard is "highly deferential," and "a court must indulge
a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action 'might be
considered sound trial strategy.'" Id. at 307-08 (quoting Strickland, 466 U.S. at
689). To establish the elements of an ineffective-assistance-of-counsel claim,
"appellate counsel must provide a detailed exposition of how the trial lawyer
fell short and a statement regarding why the result would have been different
had the lawyer's performance not been deficient. That will include the
requirement of an evidentiary proffer in appropriate cases." Id. at 311.
Applying this standard, we reject each of Kevin's ineffective assistance of
counsel claims in turn. First, defense counsel's failure to object to the admission
of the KLG/Adoption Fact Sheet (P-29) lacks merit because nothing in the
record indicates the judge needed to consider that evidence in making her
decision. Second, defense counsel invoked a trial strategy decision that
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39
considered all possible options after learning Kevin would not be appealing on
the second day of trial. Defense counsel noted on the record:
So I have no problem with proceeding today. . . .
[T]his is an expert. And generally when the expert
testifies, I don't need my client to cross-examine the
expert.
However, he has a right to testify as we all know.
He's requested if he could somehow participate by
video. . . . If he's still ill tomorrow I would like him to
appear via video if we could set that up, so he can have
his say in this trial. If not, Your Honor, I'm going to
ask for a postponement, which I would really dread
doing. I believe we can accomplish our goal of having
him testify if he really wants to, okay? . . . .
I think that's the only way it's going to be
practical because anybody, as you know, who exhibits
any symptoms of anything nowadays can't come into a
public building. Indeed he's told me he's cancelling his
visit with the child for tomorrow because he doesn't
want to get [Dennis] sick. So that's my request, Your
Honor.
Nor did defense counsel continue with his closing remarks without first
providing Kevin with the possible options, "I can do the closing without you
appearing remotely with your permission. I need you to make a decision about
that." Clearly, Kevin's assertion that his counsel was ineffective for not
requesting an adjournment is belied by the record. Moreover, Kevin fails to
identify how any alleged deficient conduct resulted in prejudice to him or tha t
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40
the result of the proceeding would have been different. See e.g., N.J. Div. of
Youth & Fam. Servs. v. N.S., 412 N.J. Super. 593, 643 (App. Div. 2010).
A review of prejudice in a termination case "begin[s] by considering the
strength of the [Division]'s evidence." State v. Gideon, 244 N.J. 538, 556
(2021). Our Court has repeatedly noted a prejudice analysis requires review of
the strength of the evidence presented to the fact-finder at trial. Id. at 561(quoting State v. Pierre, 223 N.J. 560, 583 (2015)). A conclusion only weakly
supported by the record is more likely to have been affected by errors than one
with overwhelming record support. Id. at 556-67 (quoting State v. Pierre, 223
N.J. 560, 583 (2015)). Thus, defendant has failed to establish the elements
required to prevail on any of his ineffective assistance of counsel claims.
Similarly, given our conclusion that the judgment was supported by the evidence
and the law, Kevin would not have prevailed on any of his three theories alleging
ineffective assistance of counsel. Kevin's remaining arguments lack merit to
warrant further discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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