Dcpp v. S.J. and G.M., in the Matter of the Guardianship of I.I.H.J.M. ( 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NOT FOR PUBLICATION WITHOUT THE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-1706-21
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
S.J.,
Defendant-Appellant,
and
G.M.,
Defendant.
IN THE MATTER OF THE
GUARDIANSHIP OF I.I.H.J.M.,
a minor.
Submitted January 17, 2024 – Decided January 29, 2024
Before Judges Sumners and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0117-21.
Joseph E. Krakora, Public Defender, attorney for
appellant (James Daniel O'Kelly, Designated Counsel,
on the brief).
Matthew J. Platkin, Attorney General, attorney for
respondent (Janet Greenberg Cohen, 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; Melissa R. Vance,
Assistant Deputy Public Defender, of counsel and on
the brief).
PER CURIAM
At six months old, I.I.H.J.M (Ivan), born in June 2019, was removed from
the home of his biological parents, S.J. (Sarah), and G.M. (Greg), 1 and placed in
the custody of the Division of Child Protection and Permanency. The
precipitating series of referrals that led to Ivan's removal are not at issue in this
appeal. Suffice it to say, the Division filed a guardianship complaint after its
efforts to reunify Ivan with his parents failed. During the Division's
1
Consistent with the parties' briefs, we use initials and pseudonyms to protect
the confidentiality of these proceedings. R. 1:38-3(d)(12).
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involvement with the family, Ivan endured several placements, including
relatives and a non-relative resource parent, M.H. (Melissa).
Following the two-day guardianship trial, the Family Part judge issued a
judgment terminating the parental rights of Sarah and Greg to Ivan. In support
of the judgment, the trial judge issued a comprehensive oral decision, finding
the Division satisfied all four prongs of the best interests test under N.J.S.A.
30:4C-15.1(a), by clear and convincing evidence. Accordingly, Ivan was freed
for adoption by his then-current resource parent, J.S. (Jamie) – a cousin of Ivan's
half-brother's father.
A few months after the January 20, 2022 guardianship judgment was
entered, while the parents' appeals were pending, Jamie requested Ivan's
removal for a second time. Jamie previously requested Ivan's removal within a
few days of his initial placement in December 2019. Immediately thereafter
Ivan was placed with Melissa until August 2020.
Following Jamie's most recent request for Ivan's removal, the Division
again returned the child to Melissa's resource home where he currently resides.
Both parents moved for a remand to file a motion to vacate the judgment under
Rule 4:50-1. The Division and law guardian opposed the motion but consented
to a limited remand to reopen the second part of the third prong, whether the
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Division satisfied its burden to explore alternatives to termination, and the
fourth prong, whether termination of parental rights "will not do more harm than
good." N.J.S.A. 30:4C-15.1(a)(3) and (4). In our order granting the remand
motion, we permitted the parties to present evidence to the trial court regarding
Ivan's status and custody and the parents to file a Rule 4:50-1 motion.
In view of the trial judge's retirement, the matter was assigned to Judge
Margaret M. Marley, who denied the parents' ensuing Rule 4:50-1 motion to
vacate the judgment but conducted a multi-day testimonial hearing regarding
Ivan's custody and status. Sarah asserted that if Ivan could not be returned to
her, she proposed placement with E.D. (Edith), the child's paternal aunt, who
resides in Colorado. For the first time at the hearing, Sarah proposed additional
family members for consideration. During the hearing, the judge accepted the
identified surrender of Greg's parental rights to Ivan provided Melissa adopts
the child.2
The Division presented the testimony of Frank Dyer, Ph.D., who
conducted a bonding evaluation between Ivan and Melissa; a caseworker, who
noted concerns about Edith because she lives far from Ivan's relatives and had a
2
On Greg's application, we dismissed his appeal. Accordingly, he no longer is
a party to these proceedings.
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history of failing to communicate with the Division; and Melissa, who
confirmed she understood the difference between adoption and kinship legal
guardianship (KLG) and wished to adopt Ivan. The law guardian did not present
any evidence but remained aligned with the Division's plan for adoption by
Melissa. Sarah presented the testimony of Edith and testified on her own behalf.
The Division presented another caseworker to rebut Sarah's testimony that the
Division failed to explore her siblings and other relatives as potential caregivers.
On January 13, 2023, Judge Marley issued a well-reasoned oral decision,
spanning more than fifty transcript pages. At the outset, the judge carefully
canvassed the evidence presented at the initial trial, finding no reason to disturb
the trial court's decision on the first and second prongs of the best interests test.
Similarly, the judge meticulously chronicled the testimony adduced at the
remand hearing and the supporting documentary evidence presented. The judge
thoroughly explained her factual and credibility findings, crediting the
testimony of the Division's witnesses and concluding the testimony of Sarah and
Edith lacked credibility.
The judge considered Edith initially had been ruled out because she failed
to comply with the process for interstate placement, resided in Colorado and had
never met Ivan in person, and was recently approved as a caretaker by that state
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despite the Division's concerns. Conversely, the judge noted Ivan lived with
Melissa for sixteen and one-half months. Moreover, after the child was removed
from her home, Melissa agreed to assist Jamie by taking Ivan "for weekends
twice a month, from Friday afternoon to Sunday afternoon." The judge thus
concluded: "So in reality, [Melissa] has been in the child['s] . . . life in some
capacity as a caregiver for seemingly thirty-two and a half months of his forty-
two-month lifetime."
Citing Dr. Dyer's bonding evaluation, the judge noted Ivan appeared
"happy, relaxed, and secure" with Melissa. The judge was persuaded by Dr.
Dyer's findings that Ivan was "in a in a critical stage of personality formation";
"ha[d] a very significant emotional tie to [Melissa]"; would continue to thrive in
her home; and if placed with a stranger would be "at risk for severe personality
disorder and emotional problems entering adolescence and adulthood given his
previous history of disruptions."
Turning to the fourth prong, Judge Marley expressed the court's concern
that well-intentioned and appropriate efforts to place
this child in the home of kin has resulted in adults
returning this child to the Division as a result of their
ill-prepared and poorly thought-out approach to
accepting the responsibility of custody of a child.
The end result is that the quest for kin has instead
left our child in the foster care system indefinitely with
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current proposals that he be left there for an even longer
time.
The goal of serving and upholding the child's best
interest and well-being have been derailed in this quest.
This court has been presented with no expert
opinion to suggest that the [termination of parental
rights] will now do more harm than good than it would
have done at the time of the [trial] court's rendering the
termination of parental rights decision.
The only opinion offered to this court has been a
positive opinion about the bond between [Ivan] and the
current resource parent.
A resource parent who has gone out of her way
to offer herself to this child in every imaginable way,
whether he was in her care or whether he was in the care
of another.
A resource parent who has been a support for
[the] other resource parent. A resource parent who has
been the most stable presen[ce] in this child's life for
the majority of his life.
This home may very well be the most stable home
that this child has ever experienced.
Sarah now appeals from the January 13, 2023 judgment terminating her
parental rights to Ivan, only challenging Judge Marley's decision on the third
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and fourth best interests prongs.3 For the first time on appeal, Sarah claims the
remand judge failed to consider KLG with Melissa as an alternative to
termination of her parental rights. She maintains termination of her parental
rights will do more harm than good.
We have considered Sarah's contentions in view of the governing legal
principles and conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E). Judge Marley's unassailable findings are
supported by substantial credible evidence and are entitled to our deference.
N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014).
Accordingly, we affirm substantially for the reasons stated by Judge Marley in
her cogent oral opinion that accompanied the January 13, 2023 judgment. We
simply add because Sarah never proposed KLG with Melissa, there was no need
for the judge to consider the issue. Nonetheless, in her oral decision, Judge
Marley expressly noted Melissa clearly understood the differences between
KLG and adoption and "wanted adoption only" because "the child needs a secure
and permanent placement and home."
Affirmed.
3
Sarah's two other children are in the custody of their respective fathers and are
not parties to this appeal.
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