UNIVERSITY HEIGHTS, LLC VS. FRANKLIN LAKES BOROUGH(TAX COURT OF NEW JERSEY)

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NOT FOR PUBLICATION WITHOUT THE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-4390-15T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
J.N.,
Defendant-Appellant,
and
S.L.,
Defendant.
_________________________________
IN THE MATTER OF THE GUARDIANSHIP OF
K.N., K.L. and S.N.,
Minors.
_________________________________
Submitted February 1, 2017 – Decided April 6, 2017
Before Judges Fuentes, Carroll and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Middlesex County, Docket No. FG-12-93-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Carol A. Weil, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Michael A. Thompson, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor S.N. (Lisa M.
Black, Designated Counsel, on the brief).
PER CURIAM
Defendant J.N.1 appeals from the June 6, 2016 judgment of
guardianship which terminated his parental rights to his son,
S.N., born in 2004. The judgment also terminated defendant's
parental rights to a daughter, K.L., born in 2000, by virtue of
defendant's voluntary identified surrender, and approved a
permanency plan of kinship legal guardianship (KLG) for another
daughter, K.N., born in 2002. Defendant only appeals the
termination of his parental rights to S.N. All three children
have the same biological mother, S.L. S.L.'s parental rights to
S.N. and K.L. were also terminated. S.L. does not appeal the
termination.
1
Pursuant to Rule 1:38-3(d), we use initials to protect the
confidentiality of the participants in these proceedings.
2 A-4390-15T1
Defendant argues that the trial court erred in finding that
the Division met its burden of proof with respect to prongs three
and four of the best interests test embodied in N.J.S.A. 30:4C-
15.1(a)(3) and (4). Specifically, defendant argues that the
Division failed to properly assess his mother for KLG and the
court failed to consider alternatives to termination of parental
rights. Defendant also argues for the first time on appeal that
the court failed to confirm the Division's compliance with the
provisions of the Indian Child Welfare Act (ICWA), 25 U.S.C.A. §§
1901-63 (1982). In response, the Division of Child Protection and
Permanency (Division) and the Law Guardian argue that defendant's
mother was assessed and properly ruled out, and expert testimony
supported the Division's plan for select home adoption. Further,
they assert that there was insufficient evidence of defendant's
membership in an Indian tribe to trigger ICWA. We agree and affirm
substantially for the reasons stated by Judge Lorraine Pullen in
her comprehensive oral opinion issued on May 26, 2016.
The guardianship trial lasted three days from February 23 to
25, 2016. Three Division workers and an expert qualified in
psychology testified for the Division. In addition, numerous
documentary exhibits were admitted into evidence. Defendant's
mother testified on his behalf. The trial evidence is set forth
at length in the judge's opinion and will not be repeated here in
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the same level of detail. Defendant fathered eight children,
seven of whom were in his care.2 From 2008 to 2012, the Division
received multiple referrals alleging inadequate supervision, and
environmental and educational neglect, all of which were
determined to be unfounded.
On February 20, 2013, the Division received another referral
alleging that defendant drank to the point of intoxication daily,
became violent when intoxicated and had altercations in his home
necessitating a police response. In addition, it was alleged that
the home was filthy and the children were unkempt and left
unsupervised. On March 5, 2013, while the Division's investigation
was ongoing, the Division received another referral that one of
defendant's daughters, Ka.N., was transported by ambulance to the
hospital, complaining of pain, accompanied by defendant who
appeared to be intoxicated. When defendant was interviewed at the
hospital by Division caseworkers, he admitted drinking that day
but denied being intoxicated. The Division caseworkers who
responded to defendant's home found the children being supervised
2
The four other children in defendant's care had three different
biological mothers. T.M. is the biological mother of Ky.N., a
girl born in 1996; Su.N. is the biological mother of Ka.N., a girl
born in 2001; and A.C. is the biological mother of T.N., a boy
born in 2006, and Si.N., a boy born in 2007. Defendant's eighth
and eldest child, Kl.N., a girl born in 1991, had reached the age
of majority throughout most of these proceedings.
4 A-4390-15T1
by defendant's sixteen-year-old daughter, Ky.N., and defendant's
adult paternal cousin, both of whom denied seeing defendant
drinking that day.
The Division executed an emergency removal of all seven
children and was granted custody of the children by the trial
court on March 7, 2013. Initially, the children were placed with
defendant's mother, V.N.3 After further investigation, the
Division substantiated defendant for inadequate supervision based
on the March 5, 2013 incident, and educational neglect based on
reports of the children's poor school attendance and chronic
lateness. On April 10, 2014, following a fact-finding hearing,
the court determined that defendant abused or neglected his
children, but concluded that the Division met its burden of proof
only with respect to the allegations of educational neglect,
N.J.S.A. 9:6-8.21(c).
Following the removal of the children, over the course of
approximately two years, evaluations and services were provided
to defendant by the Division to facilitate reunification, and
compliance reviews were conducted to monitor and assess
defendant's compliance. A July 1, 2013 psychological evaluation
3
The four children who were not the subjects of the guardianship
complaint were ultimately placed with their respective biological
mothers.
5 A-4390-15T1
diagnosed defendant with alcohol dependency, impulse control
disorder, intermittent explosive disorder, and narcissistic
personality disorder with obsessive compulsive traits. The
psychologist recommended successful completion of a substance
abuse treatment program followed by aftercare, frequent and random
drug testing, individual psychotherapy, anger management
counseling, employment, and a home assessment.
Defendant was afforded substance abuse treatment, anger
management counseling, family counseling, parenting skills
education, supervised and unsupervised visitation, linkage to
community and employment resources, and transportation services.
Although there was sporadic compliance, defendant was unable to
maintain sobriety, stable housing or employment. Defendant was
inconsistent with his attendance at various substance abuse
treatment programs, failed to comply with program requirements,
and failed to abide by recommendations for a higher level of care.
In addition, defendant often failed to provide urine samples,
provided diluted samples, and provided samples that produced
disputed results. Further, although defendant was generally
consistent with his attendance at supervised visitation and family
counseling, he was often late and left early. Additionally, at
times, defendant was reportedly inattentive to the children during
the sessions and smelled of alcohol.
6 A-4390-15T1
After granting defendant two extensions to complete court
ordered services, the court ultimately approved a plan for
termination of parental rights and a complaint for guardianship
of S.N. was filed on May 26, 2015. S.N. is a special needs child.
After his initial placement with V.N., S.N. was moved to an
approved resource home with his brothers on March 13, 2013.
Thereafter, S.N. was removed from a series of unsuccessful
placements, including removal from his mother, S.L., after she
tested positive for drug use while S.N. was in her care.
On November 17, 2015, S.N. was hospitalized in a psychiatric
unit for making suicidal and homicidal threats. He was diagnosed
with attention deficit hyperactivity disorder (ADHD), impulse
control disorder and disruptive mood dysregulation disorder.
After S.N. was discharged on December 10, 2015, he was placed in
a therapeutic group home where he will remain for six to twelve
months, depending on his progress. The Division's approved
permanency plan for S.N. was adoption by his half-brother, A.F.,
one of S.L.'s other sons, or select home adoption, for which there
were three approved homes willing to adopt a child with S.N.'s
special needs. S.N.'s prospects for adoption were characterized
as extremely positive and promising.
The Division presented unrebutted expert testimony that
despite the plethora of services provided to defendant, he was
7 A-4390-15T1
unwilling or unable to overcome or remove the harms facing his
children and was not capable of parenting at the time of the
guardianship trial or in the foreseeable future. The expert
explained that defendant downplayed his alcohol use, indicated
that he did not need substance abuse treatment, failed to remediate
his drinking problem, and deflected blame for his shortcomings
onto others.
Based on the psychological and bonding evaluations conducted,
the expert described defendant's bond with his children as
"insecure." According to the expert, defendant lacked the
predictability, reliability and consistency necessary to form a
basis of trust with his children. The expert explained that
defendant's interactions with his children were not nurturing but
bordered on emotional abuse "in terms of belittling, and shaming,
and embarrassing his children." In addition, the expert noted
that defendant was skeptical and dismissive of S.N.'s severe
emotional and psychological problems. She described defendant as
a poor role model who brought out the worst in his children, and
termination "will not do more harm than good."
According to the expert, defendant acknowledged being unable
to care for his children. She noted that defendant was unemployed,
homeless and recently diagnosed with prostate cancer. The expert
recommended termination of defendant's parental rights with select
8 A-4390-15T1
home adoption for S.N. or, in the alternative, adoption by a well-
adjusted adult sibling able to address S.N.'s special needs.
Acknowledging S.N.'s desire to remain with a family member, the
expert explained that although S.N. "would have . . . a sense of
conflict in part because there's no plan for him right now[,]"
delaying permanency would be harmful because "it puts [him] in a
state of limbo" that adversely affects his self-esteem and his
self-worth and his "ability to establish healthy[] independence."
V.N. testified that S.N. resided with her from the age of
three to five. According to V.N., after S.N. and his two brothers
were removed on March 13, 2013, with the exception of Ky.N., the
three girls remained in her care until September 2013 when there
was an incident during which V.N. admitted slapping K.N. in the
face with an open hand when she found her with a boy. Although
abuse was not established, all three girls were removed from her
care on September 10, 2013.
On July 23, 2015, the Division ruled V.N. out as a placement
option on best interests grounds. The Division's decision was
based primarily on concerns that she allowed defendant to have
unsupervised access to the children, she did not believe that
defendant had a drinking problem, she had inadequate space in her
two-bedroom apartment to accommodate the children, and there were
concerns about the children's school attendance and appearance
9 A-4390-15T1
while in her care. V.N. did not appeal the Division's
determination. However, in an attempt to gain custody of S.N. and
K.N., she filed a FD complaint and a motion to intervene in the
FG case, both of which were rejected. V.N., a judge's secretary,
testified that she anticipated retiring the following month and
was willing to undergo training to care for S.N. She also
acknowledged defendant's drinking problem and vowed to deny him
access to the children.
In her comprehensive oral opinion, the judge found the
Division's evidence persuasive and credited the testimony of the
Division caseworkers as well as the expert's opinions. The judge
made meticulous factual findings as to all four prongs of the best
interests test embodied in N.J.S.A. 30:4C-15.1(a), and thereafter
concluded that the Division had satisfied all four prongs by clear
and convincing evidence. See N.J.S.A. 30:4C-15.1(c).
The judge found "no doubt" that S.N. "[has] been and will
continue to be placed in harm's way if returned to the custody of
. . . [defendant,]" whose "extensive use of alcohol and denial of
the fact that he is an alcoholic has placed the children in harm's
way repeatedly." Further, the judge found that although defendant
"loves" S.N. and "has the intelligence needed to understand and
rectify his present situation[,]" he "is incapable of insuring the
safety, health and development" of S.N. and "is unwilling to
10 A-4390-15T1
eliminate the harm that lead to the children's removal from his
custody."
The judge continued that despite the Division's efforts,
defendant "has not seriously participated in any of the services
offered by the Division" and "cannot remediate [his] parental
deficits . . . ." Notably, the judge found that the KLG plan
offered by defendant was "not offered with the best interest of
the [child] as a priority." Instead, defendant's plan for S.N.
placed defendant's "needs and wants ahead of [S.N.'s]" by affording
defendant "the option of injecting [himself] into the life[] of
[S.N.] . . . whenever it suits [his] needs." After considering
the alternatives presented, the judge concluded that termination
of defendant's parental rights to S.N. "will not do more harm than
good."
The judge's opinion tracks the statutory requirements of
N.J.S.A. 30:4C-15.1(a). It accords with N.J. Div. of Youth &
Family Servs. v. F.M., 211 N.J. 420 (2012); N.J. Div. of Youth &
Family Servs. v. E.P., 196 N.J. 88 (2008); In re Guardianship of
K.H.O., 161 N.J. 337 (1999); In re Guardianship of D.M.H., 161
N.J. 365 (1999); and N.J. Div. of Youth & Family Servs. v. A.W.,
103 N.J. 591 (1986), and is more than amply supported by the
record. F.M., supra, 211 N.J. at 448.
11 A-4390-15T1
We reject defendant's argument that the Division failed to
properly assess his mother for KLG. A parent "may request . . .
that the court consider a [KLG] arrangement as an alternative
disposition[,]" but "[o]nly the [D]ivision or the court" is
permitted to ultimately decide whether to seek that alternative
disposition. N.J.S.A. 30:4C-87. Our Supreme Court has made clear
that KLG should only be considered when adoption is not possible:
The plain language of the [Kinship] Act, as
well as its legislative history, establish
[KLG] as a more permanent option than foster
care when adoption "is neither feasible nor
likely" and "kinship legal guardianship is in
the child's best interest." N.J.S.A. 3B:12A-
6d(3)-(4); [N.J. Div. of Youth & Family Servs.
v. S.V., 362 N.J. Super. 76, 88 (App. Div.
2003)]. Conversely, when the permanency
provided by adoption is available, [KLG]
cannot be used as a defense to termination of
parental rights under N.J.S.A. 30:4C-
15.1(a)(3).
[N.J. Div. of Youth & Family Servs. v. P.P.,
180 N.J. 494, 512-13 (2004).]
Here, the record amply supports the court's determination
that adoption was both feasible and likely for S.N. and the
undisputed expert testimony supported the Division's plan for
adoption. Moreover, although V.N. was assessed and ruled out by
the Division, the court noted that its finding did "not preclude
the Division from investigating" V.N. for "permanent placement if
warranted."
12 A-4390-15T1
We also reject defendant's belated argument that the court
failed to confirm the Division's compliance with the provisions
of ICWA. In the course of eliciting information from defendant
to effectuate the voluntary identified surrender of K.L.,
defendant responded to his attorney's question regarding
membership or eligibility for membership in a federally recognized
American Indian tribe by stating "[i]t was brought to my attention
it was Mattaponi and Pamunkey. We just haven't got proof of it
yet." When asked whether he obtained any proof since the day
before, defendant responded "[n]o." Defendant confirmed that he
was "comfortable with a no until [he] can find any information."
Defendant's attorney stated to the court that she did not have
enough information to show that ICWA applied. The court accepted
the voluntary surrender but directed defense counsel to advise the
court if additional information regarding membership in a
recognized American Indian tribe was uncovered.
ICWA states
it is the policy of this Nation to protect the
best interests of Indian children and to
promote the stability and security of Indian
tribes and families by the establishment of
minimum Federal standards for the removal of
Indian children from their families and the
placement of such children in foster or
adoptive homes which will reflect the unique
values of Indian culture, and by providing for
assistance to Indian tribes in the operation
of child and family service programs.
13 A-4390-15T1
[25 U.S.C.A § 1902.]
In addition, in state court proceedings involving an Indian child,
ICWA requires "the party seeking the foster care placement of, or
termination of parental rights to, an Indian child [to] notify the
parent or Indian custodian and the Indian child's tribe, by
registered mail with return receipt requested, of the pending
proceedings and of their right of intervention." 25 U.S.C.A.
§1912(a). "The purpose of giving notice is to give the Indian
tribe the opportunity to determine whether the child is an 'Indian
child' as defined by the [Act], and, if so, to intervene in the
termination proceeding." N.J. Div. of Child Prot. & Permanency
v. K.T.D., 439 N.J. Super. 363, 369 (App. Div. 2015) (citation
omitted); In re Guardianship of J.O., 327 N.J. Super. 304, 315
(App. Div.) (citation omitted), certif. denied, 165 N.J. 492(2000).
An "Indian child" is defined as "any unmarried person who is
under age eighteen and is either (a) a member of an Indian tribe
or (b) is eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe." 25 U.S.C.A. §
1903(4). "Indian tribes have exclusive authority to determine who
is a member or eligible for membership in a tribe." K.T.D., supra,
439 N.J. Super. at 369 (citation omitted). If a child is an
14 A-4390-15T1
"Indian," the termination of his or her parents' rights cannot be
ordered without "a determination, supported by evidence beyond a
reasonable doubt . . . that the continued custody of the child by
the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child." 25 U.S.C.A. § 1912(f).
The Division must also establish that it provided remedial services
but that those services were not successful. 25 U.S.C.A. §
1912(d).
Other than defendant's vague and inconclusive references to
"Mattaponi" and "Pamunkey," there was no reason to believe that
S.N. was of Native American heritage. Cf. K.T.D., supra, 439 N.J.
Super. at 372. Where, as here, there are merely "vague and casual
reference[s] to Indian ancestry[,]" such references are
insufficient to trigger the notice requirements of ICWA. J.O.,
supra, 327 N.J. Super. at 317. However, even if S.N. was an
"Indian" child, the court's termination of defendant's parental
rights was consistent with ICWA. Although the court evaluated the
termination of defendant's parental rights under the clear and
convincing evidence standard in accordance with New Jersey law,
we are satisfied that the result would have been the same under
the enhanced and more rigorous federal requirements. Id. at 320.
Affirmed.
15 A-4390-15T1