Dcpp v. N.D. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-3548-22
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
N.D.,1
Defendant-Appellant,
and
T.A., a/k/a B.F.,
Defendant.
____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF J.D.,
Minor-Respondent.
____________________________
1
We use initials for the parties to protect their privacy in accordance with Rule
1:38-3(d)(12) and N.J.S.A. 9:6-8.10a(a).
Submitted January 17, 2024 – Decided February 27, 2024
Before Judges Mayer and Paganelli.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FG-20-0024-20.
Joseph E. Krakora, Public Defender, attorney for
appellant (Adrienne Marie Kalosieh, Assistant Deputy
Public Defender, on the briefs).
Matthew J. Platkin, Attorney General, attorney for
respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Julie Beth Colonna, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Neha Gogate, Assistant
Deputy Public Defender, of counsel and on the brief).
PER CURIAM
N.D. appeals from the June 30, 2023 judgment terminating her parental
rights to J.D. We previously considered this matter and left intact the trial
court's determinations on prongs one, two and the first part of prong three.2
2
"[T]o terminate parental rights, the New Jersey Division of Child Protection
and Permanency (Division) must prove by clear and convincing evidence all
four prongs of the 'best interests' test set forth in N.J.S.A. 30:4C -15.1(a)." N. J.
Div. of Child Prot. & Permanency v. D.C.A., 256 N.J. 4, 8 (2023). The first
prong is whether "[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-
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N.J.S.A. 30:4C-15.1(a); N. J. Div. of Child Prot. & Permanency, v. N.D., Nos.
A-1321-21 and A-1588-21 (App. Div. May 25, 2023) (slip op. at 32). We
remanded for the trial court to reconsider the analysis of the second part of the
third prong and the fourth prong under N.J.S.A. 30:4C-15.1(a)(3)-(4). Having
considered the arguments in light of the record and applicable legal standards,
we affirm.
In our prior opinion we detailed the facts in this matter. Since we write
for the parties, we need not fully repeat the facts herein. We note that N.D. has
a history of bipolar disorder, schizophrenia, anxiety, and panic disorder. She
requires daily assistance to function due to an intellectual delay. Three days
after J.D.'s birth, the Division filed a verified complaint for custody, care, and
supervision of J.D. The court granted the Division custody of J.D. upon finding
N.D. had significant mental health issues that prevented her from safely
parenting J.D. The Division initially placed J.D. in a non-relative resource home
15.1(a)(1); the second prong is whether "[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 for the child and the delay of permanent placement will add to
the harm," N.J.S.A. 30:4C-15.1(a)(2); and the first part of prong three is whether
"[t]he [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 . . . ." N.J.S.A. 30:4C-15.1(a)(3).
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and subsequently, about a month after her birth, placed her with T.C., N.D.'s
first cousin. J.D. has been with T.C. ever since.
Upon remand, the trial judge listened to T.C.'s prior testimony 3 and
conducted his own hearing where had the opportunity to observe her testify and
demeanor in person in the courtroom. He found her testimony "sincere and
credible." He observed that she: was "quite clear" in her understanding of the
differences between Kinship Legal Guardianship (KLG) and adoption;
understood N.D.'s rights under either scenario; and held the opinion that
"adoption was the only option she was interested in pursuing."
The judge noted T.C. remained steadfast in her quest for adoption
because: (1) the relationship between N.D. and T.C. went from "good," at the
time of initial placement, to "chaotic"; (2) T.C. was "exasperated" by N.D.'s
"irrational behaviors toward her and J[.D.]"; (3) T.C. perceived N.D. as
believing T.C. was not an "ally" and, instead, an "enemy"; and (4) T.C. was
"unwilling to tolerate" being N.D.'s "verbal punching bag."
Moreover, he observed that T.C. thought N.D. made false promises to J.D.
including: (1) J.D.'s room was ready; (2) J.D. was coming home next week; and
(3) J.D was coming home soon; despite those promises having no "basis in truth
3
The remand judge was not the judge who initially tried the matter.
A-3548-22
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or reality." The judge credited T.C.'s opinion that N.D.'s "unrealistic beliefs
would have only resulted in [her] having to [go] to court repeatedly," something
T.C. "was unwilling to do because it was contrary to what she felt w[as] in
J[.D.]'s best interests."
In addition, the judge credited the Division's expert's testimony that N.D.'s
conflicts with T.C. were so magnified that T.C. would use others as buffers
during visits between N.D. and J.D. The judge noted the expert expressed
concern that KLG would expose J.D. to the intense conflict between N.D. and
T.C.
Further, the judge credited the Division's expert's opinion that N.D. would
"not be able to parent [J.D.] now or at any time in the foreseeable future, and
probably never." Indeed, the judge concluded J.D. could not adequately meet
her own needs, let alone J.D.'s needs. He found N.D. unable to satisfy J.D.'s
needs for "permanency and stability."
The judge noted the Division's expert conducted bonding evaluations of
N.D. and J.D., and T.C. and J.D. The judge credited the expert's observations
and opinion that, as and between N.D. and J.D., J.D.: (1) had "absolutely no
attachment to" N.D.; (2) "did not view [N.D.] as a maternal figure"; (3) "would
A-3548-22
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suffer little to no harm if her relationship with [N.D.] were to be severed"; and
(4) any harm caused by termination could be mitigated by T.C.
Further, the judge credited the expert's observations and opinion that, as
and between J.D. and T.C., J.D.: (1) "would suffer great harm if her meaningful
bond with [T.C.] was severed"; (2) "perceive[d T.C.] as her psychological parent
and was extremely attached to her"; and (3) would have her "basic needs" met
and would have a "stable and loving home" with T.C.
Ultimately, finding KLG was not an alternative to adoption and
termination of N.D.'s parental rights to J.D. would not do more harm than good,
the judge entered a judgment terminating N.D.'s parental rights to J.D.
N.D. raises the following issues on appeal:
POINT I.
THE REMAND COURT ERRED TO HOLD DCPP
OFFERED SUFFICIENT PROOF THAT
TERMINATION WOULD DO NO MORE HARM
THAN GOOD SUFFICIENT TO MEET PRONG
FOUR AND GAVE DR. KANEN'S PRIOR OPINION
UNDUE WEIGHT.
POINT II.
EVIDENCE THAT T.C. PREFERS ADOPTION
OVER KLG, NO MATTER HOW CLEAR, DOES
NOT SATISFY DCPP'S CLEAR AND CONVINCING
BURDEN TO SHOW TERMINATION IS IN J.D.'s
BEST INTERESTS.
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A. The termination statute does not
mention caregiver preference when
requiring the court consider alternatives to
termination.
B. Without expert evidence that continued
parental contact would harm a child, a
testimonial proffer of inconvenience to the
caregiver does not meet DCPP'S clear and
convincing burden to terminate parental
rights.
More particularly, as to the second part of prong three, N.D. argues the
judge was "uninformed and unprepared to draw legal conclusions as to whether
alternatives to termination of parental rights exist." She contends he "for[sook]
his parens patriae power and hand[ed] off the responsibility to consider[]
alternatives to [the Division] the very party who is to petition for the relief of"
TPR.
N.D. also contends, with respect to prong four, the trial judge erred
because: (1) the Division "failed to show termination of parental rights was
necessary for J.D. to achieve permanency" and instead established termination
was necessary "only to avoid inconvenience" to T.C.; (2) there was no evidence
"of animosity or irrational behavior with or toward J.D."; (3) he gave
impermissible weight to the Division's expert's opinion; (4) the "harm of
separation [from T.C.] is a red herring, because KLG does not require or
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envision any separation from" T.C.; and (5) he "punish[ed] N.D. for being, and
acting, mentally ill."
Our scope of review in appeals from orders terminating parental rights is
limited. N.J. Div. of Child Prot. & Permanency v. T.D., 454 N.J. Super. 353,
379 (App. Div. 2018). "[W]e apply a deferential standard in reviewing the
family court's findings of fact because of its superior position to judge the
credibility of witnesses and weigh the evidence . . . ." N.J. Div. of Child Prot.
& Permanency v. JR-R., 248 N.J. 353, 368 (2021) (internal citations omitted).
In such cases, we will generally uphold the trial court's factual findings, so long
as they are "supported by adequate, substantial, and credible evidence." N.J.
Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014). Such a decision
should only be reversed or altered on appeal if the trial court's findings were "so
wholly unsupportable as to result in a denial of justice." N.J. Div. of Youth &
Fam. Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting In re Guardianship of
J.N.H., 172 N.J. 440, 472 (2002) quoting In re Guardianship of J.T., 269 N.J.
Super. 172, 188 (App. Div. 1993)).
Moreover, as "[t]he factfinder, [the judge] may accept some of [an]
expert's testimony and reject the rest." Torres v. Schripps, Inc., 342 N.J. Super.
419, 430 (App. Div. 2001) (citing Todd v. Sheridan, 268 N.J. Super. 387, 401
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(App. Div. 1993)). "[T]he weight to be given to the evidence of experts is within
the competence of the" judge. LaBracio Fam. P'ship v. 1239 Roosevelt Ave.,
Inc., 340 N.J. Super. 155, 165 (App. Div. 2001).
"A trial court's interpretation of the law and the legal consequences that
flow from established facts are not entitled to any special deference."
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Under prongs three and four, the State must prove by clear and convincing
evidence each of the following:
(3) [T]he court has considered alternatives to [TPR]; and
(4) [TPR] will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a).]
Under the second part of the third prong, the judge considered whether
KLG could provide an "alternative[] to termination of parental rights." N.J.S.A.
30:4C-15.1(a)(3). KLG, "[u]nlike a judgment terminating parental rights, . . .
does not sever the legal relationship between the child and the parent." R.G.,
217 N.J. at 558. For instance, "the birth parent of the child retains the right to
visitation or parenting time with the child, as determined by the court," N.J.S.A.
3B:12A-6(e)(4); and can apply to have the child returned, N.J.S.A. 3B:12A-6(f).
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"The decision of a resource parent to choose adoption over KLG must be
an informed one." N.J. Div. of Child Prot. & Permanency v. M.M., 459 N.J.
Super. 246, 260-61 (App. Div. 2019) (citing N.J. Div. of Youth & Fam. Servs.
v. H.R., 431 N.J. Super. 212, 232-33 (App. Div. 2013)). "[T]he caregiver must
be fully informed of the potential benefits and burdens of KLG before deciding
whether he or she wishes to adopt." Id. at 263. "The caregiver's consent to
adopt should be . . . unconditional, unambiguous, and unqualified." Id. at 264.
The caretaker does not act "as the 'ultimate decision-maker,'" id. at 262; but their
"preference between the two alternatives should matter," id. at 263.
In conducting his analysis, the judge was satisfied T.C. understood the
differences between KLG and adoption and noted she "repeatedly and
unequivocally expressed her desire to adopt." He assessed T.C.'s willingness to
petition to be a KLG "guardian," and therefore whether KLG was an alternative
to termination. Moreover, the judge's consideration of the interaction between
N.D. and T.C. was essential, considering N.D.'s continued right to visitation or
parenting time with J.D. under KLG. Finally, the judge's consideration of N.D.'s
"false promises," made with no "basis in truth or reality," and T.C.'s concern
with having to repeatedly go to court was reasonable, considering N.D. would
retain the right to apply to have J.D. returned.
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We are satisfied the judge independently considered alternatives to TPR,
and determined there were none. The judge's findings are amply supported by
competent evidence in the record and his legal conclusion is unassailable.
Under the fourth prong, the analysis is whether "[TPR] will not do more
harm than good." N.J.S.A. 30:4C-15.1(a)(4). The fourth prong, serves as "a
'fail-safe' inquiry guarding against an inappropriate or premature termination of
parental rights." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 453
(2012) (quoting N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 609
(2007)).
[T]he fourth prong of the best interests standard cannot
require a showing that no harm will befall the child as
a result of the severing of biological ties. The question
to be addressed under that prong is whether, after
considering and balancing the two relationships, the
child will suffer a greater harm from the termination of
ties with [the child's] natural parents than from the
permanent disruption of [the] relationship with [the
child's] foster parents.
[In re Guardianship of K.H.O., 161 N.J. 337, 355
(1999).]
In N.J. Div. of Child. Prot. & Permanency v. D.C.A., 256 N.J. 4, 26-28
(2023), the New Jersey Supreme Court reiterated the importance of considering
evidence of the bond between child and resource parents under the fourth prong.
"[T]o satisfy the fourth prong, the State should offer testimony of a 'well
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qualified expert who has had full opportunity to make a comprehensive,
objective, and informed evaluation' of the child's relationship with both the
natural parents and the foster parents." M.M., 189 N.J. at 281 (quoting In re
Guardianship of J.C., 129 N.J. 1, 19 (1992)).
Here the judge determined that N.D. is unable, now or in the future, to
parent J.D. and N.D. does not offer J.D. permanency. In contrast, he found T.C.
provides J.D. a sensitive, caring and nurturing environment and has incorporated
J.D. into her family unit.
Relying on the Division expert's bonding evaluation, the judge found
absolutely no attachment between N.D. and J.D. and any harm in terminating
their relationship could be mitigated by J.D.'s strong relationship with T.C. In
turn, he found J.D. perceived T.C. as her psychological parent to whom she was
extremely attached; and J.D. would suffer great harm if her meaningful bond
with T.C. was severed. The judge's finding that termination of N.D.'s parental
rights would not do more harm than good, is amply supported in the record and
his legal conclusion is indisputable.
Any remaining arguments raised by N.D. are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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