DCPP v. C.T. AND M.H., AND B.G., IN THE MATTER OF THE GUARDIANSHIP OF N.E.T., A.B.J.G. AND B.J.G., JR. (FG-04-0156-21, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-0593-21
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
C.T. and M.H.,1
Defendants,
and
B.G.,
Defendant-Appellant.
___________________________
IN THE MATTER OF THE
GUARDIANSHIP OF N.E.T.,
A.B.J.G. and B.J.G., JR., minors.
____________________________
Submitted September 12, 2022 – Decided September 21, 2022
1
We use initials and pseudonyms to protect the family's identity. R. 1:38-
3(d)(12) and N.J.S.A. 9:6-8.10a(a).
Before Judges Mayer and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FG-04-0156-21.
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel A. DiLella, Designated Counsel, on
the briefs).
Matthew J. Platkin, Acting Attorney General, attorney
for respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Julie B. Colonna, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors A.B.J.G. and B.J.G., Jr. (Meredith
Alexis Pollock, Deputy Public Defender, of counsel;
David B. Valentin, Assistant Deputy Public Defender,
of counsel and on the brief).
PER CURIAM
Defendant B.G. (Bob) appeals from an October 6, 2021 judgment of
guardianship after a trial terminating the parental rights to his biological
children, A.B.J.G. (Ann), born in February 2010, and B.J.G., Jr. (Ben), born in
June 2012.2 On appeal, Bob challenges the decision by Judge Francine I.
2
The children's biological mother, C.T., surrendered her parental rights
regarding Ann and Ben to the relative resource parent and maternal cousin, R.L.
(Rachel). M.H. is the biological father of N.E.T., born in April 2004. M.H. and
C.T. surrendered their parental rights regarding N.E.T. to Rachel. Because she
is eighteen years old, N.E.T. is not participating in this appeal. Further, C.T.
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Axelrad terminating his parental rights after finding the New Jersey Division of
Child Protection and Permanency (Division) satisfied all four prongs of the best
interests of the child test, N.J.S.A. 30:4C-15.1(a).
Based on our review of the record and applicable law, we are satisfied the
evidence presented by the Division overwhelmingly supports Judge Axelrad's
decision to terminate Bob's parental rights. Thus, we affirm for the reasons
stated by Judge Axelrad in her comprehensive oral opinion on October 6, 2021.
We add the following comments.
Under N.J.S.A. 30:4C-15.1(a), the Division must satisfy the following
prongs:
(1) The child's safety, health, or development has been
or will continue to be endangered by the parental
relationship;
(2) The parent is unwilling or unable to eliminate the
harm facing the child or is unable or unwilling to
provide a safe and stable home for the child and the
delay of permanent placement will add to the harm;
(3) The [D]ivision has made reasonable efforts to
provide services to help the parent correct the
circumstances which led to the child's placement
outside the home and the court has considered
alternatives to termination of parental rights; and
and M.H. are not participating on appeal because they surrendered their parental
rights.
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(4) Termination of parental rights will not do more
harm than good.
These prongs overlap "to provide a comprehensive standard that identifies
a child's best interests." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J.
420, 448 (2012). "The considerations involved are extremely fact sensitive and
require particularized evidence that address[es] the specific circumstances in the
given case." N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 554 (2014).
The Division must prove all four statutory prongs by clear and convincing
evidence. Ibid.At the time of trial, Bob resided in a facility in Maryland and the matter
proceeded by Zoom due to COVID-19 restrictions. The Division and Judge
Axelrad afforded Bob every accommodation to ensure his full participation
during the proceedings as if he were present in the courtroom with his attorney.
Rather than recite the history of the Division's lengthy involvement with
this family, we incorporate Judge Axelrad's detailed factual findings. We
provide a short summary of the trial evidence.
The Division has been involved with the family for many years. The
reported incidents leading to the Division's involvement and removal of the
children included domestic violence and substance abuse by C.T. and Bob.
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Bob was first incarcerated in 2014. The Division was unable to reach Bob
from 2013 through 2017 except when he contacted the Division. Bob was in
and out of jail in 2017. In 2018, Bob moved to Georgia and had no contact with
his children. In December 2018, Bob contacted the Division and expressed an
interest in caring for Ann and Ben.
Both children have behavioral and educational issues requiring special
services. At no time did Bob make any effort to assist Ann or Ben in addressing
their specific educational and behavioral needs, although he knew the children
required and received services to overcome their deficits.
In March 2019, the Division placed Ann and Ben with a maternal cousin,
R.L. (Rachel). Rachel readily participated in the services necessary to address
the children's issues and continues to do so.
Rachel discussed Kinship Legal Guardianship (KLG) and adoption with
the Division several times. After explaining the options, Rachel stated she
wished to adopt the children and understood the differences between KLG and
adoption. During the trial, Rachel testified it was essential that Ann and Ben
have stability in their lives and she wanted to adopt the children to provide them
the necessary permanency and stability. Rachel also expressed a willingness for
the children to maintain contact with their biological parents.
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In or about 2019, Bob moved to West Virginia and lived with his girlfriend
and their newborn child. 3 When Bob was in West Virginia, Rachel facilitated
video calls with the children. However, Bob failed to maintain any consistency
in his communications with the children while he lived in West Virginia.
Because Bob moved to another state, the Division required a home
assessment prior to considering Bob's request for custody of Ann and Ben. The
Division requested an out-of-state assessment be performed regarding Bob's
living situation in West Virginia. Before that assessment commenced, in June
2020, Bob relocated to another address in West Virginia, necessitating the need
for a new home assessment.
Around the same time, Bob faced federal charges for drug distribution and
was incarcerated on those charges in July 2020. He was convicted on the federal
charges in April 2021 and sentenced to serve thirty-seven months in prison. At
the time of trial, Bob's anticipated release date on the federal drug charges was
May 2022.4
3
Bob's girlfriend had five other children when she gave birth to Bob's child.
4
There is information in respondents' briefs suggesting Bob's release date is
October 2022.
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Rachel offered to continue facilitating communications between Bob and
the children while Bob was incarcerated. However, Bob only had fifteen
minutes per week for telephone communications. Bob explained he was unable
to use that time each week to speak with the children because he had other
matters requiring the use of his telephone time allotment.
At trial, the judge heard testimony from Dr. Alan Lee, a licensed
psychologist, who performed bonding evaluations and psychological
evaluations. The judge relied heavily on Dr. Lee's testimony, finding his
testimony clear, candid, and credible. Moreover, Dr. Lee's opinions were not
rebutted by any contrary expert testimony. The judge also heard testimony from
the Division's adoption caseworker and Bob. However, Bob did not submit any
documentary evidence or expert testimony.
Judge Axelrad set forth her fact findings and legal conclusions in support
of the Division's satisfaction by clear and convincing evidence as to each of the
four prongs.
Under the first prong, Judge Axelrad found the health, safety, and
development of the children was at risk based on Bob's criminal recidivistic
behaviors, untreated mental health and aggression issues, and continued battle
with drugs. She explained Bob "has a history of impulse control problems, anger
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issues, aggression and violence. He remains at a heightened risk for criminal
recidivism."
The Division's psychological expert, Dr. Alan Lee, described Bob's
substance abuse history beginning at age twelve. Bob failed to complete various
treatment programs to address his substance abuse. While in prison, Bob
received some treatment for his substance abuse problem. However, Dr. Lee
believed Bob agreed to participate in the substance abuse program hoping to
receive a reduction on his sentence. Dr. Lee opined Bob has a potential for
relapse, lacks genuine motivation for personal change, and limited knowledge
of parenting and child-rearing.
Dr. Lee also testified Bob has a history of violence and mental health
issues. Despite recommendations that he participate in anger management
programs, family therapy, substance abuse programs, parenting skill classes, and
a vocational assessment, Bob did not follow through with these
recommendations. 5 The doctor opined Bob has impulse control issues, anger
issues, and displays aggressive and violent behaviors. With these traits, Dr. Lee
stated Bob was at a heightened risk for criminal recidivism. Dr. Lee also
5
Judge Axelrad noted Bob was not incarcerated in 2017 and 2018 and thus had
ample time to engage in the recommended services.
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explained Bob's unaddressed issues raised concerns regarding his ability to be
even a minimal caretaker to Ann and Ben at the time of trial or in the foreseeable
future.
Judge Axelrad found the doctor's opinions were not predicated upon Bob's
incarcerated status and his opinions would be the same if Bob had not been in
prison. Based on the doctor's testimony, the judge concluded Bob's recidivism
for criminal conduct must be considered in analyzing the harm to the children.
Thus, Judge Axelrad found the Division satisfied the first prong favoring
termination of Bob's parental rights.
Similarly, under the second prong, the judge found Bob was unwilling or
unable to eliminate the harm to Ann and Ben. Both children suffer from
educational and behavioral issues requiring special services. Bob never assisted
the children in addressing their specific needs. However, Rachel actively
participated in the services offered to assist the children in overcoming their
issues.
Further, by declining to participate in services, the judge explained Bob
failed to provide any stability for his children. Even when Bob was not in prison,
Bob did little to nurture or care for Ann and Ben. Further, when Bob is released
from prison, he admitted he would be unable to care to his children for at least
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a year. Thus, the judge held the Division proved Bob is unable or unwilling to
eliminate the harm facing the children and the delay of permanent placement for
the children would add to the harm suffered.
Under the third prong, the judge found the Division made reasonable
efforts to assist Bob despite his incarceration. The Division located Bob while
he was in prison and kept him apprised of the status of the litigation once the
Division obtained Bob's contact information. The Division also offered to
facilitate telephone communications between the children and Bob during his
period of incarceration because the prison would not allow in-person visits
during COVID-19. Despite the Division's efforts, the judge noted Bob never
called Rachel to speak with the children while he was incarcerated. The
Division also explored services for Bob while he was imprisoned but the prison
declined to offer services to inmates during COVID-19.
In his bonding evaluation, Dr. Lee concluded the children lacked any
significant or positive bond with Bob. According to the testimony, Dr. Lee
found the children displayed an ambivalent and insecure attachment to Bob.
Thus, the doctor found there was a low risk of the children suffering severe and
enduring harm if Bob's parental rights were terminated.
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On the other hand, Dr. Lee found the children had a secure and positive
bond with Rachel, whom they had lived with since March 2019. He explained
Rachel unequivocally wanted to adopt the children and the children wanted to
be adopted by Rachel.
On alternatives to termination, under the third prong, the judge found Bob
never offered his sister as a suitable relative placement. Judge Axelrad held the
Division discussed the available options with Rachel and she expressed her
preference for adopting the children. Importantly, the judge noted the Division
clarified the Division had the same role regarding the children whether Rachel
elected KLG or adoption.
KLG is an alternative that allows a relative to become the child's legal
guardian and commit to care for the child until adulthood, without stripping the
parents of their rights. N.J. Div. of Youth & Family Servs. v P.P., 180 N.J. 494,
508 (2004). The Legislature created KLG, finding "an increasing number of
children 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 & Family 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
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512-13 (emphasis added) (quoting N.J.S.A. 3B:12A-6(d)(3) to (4)). On July 2,
2021, the Legislature enacted L. 2021, c. 154, which removed the KLG
requirement that adoption be "neither feasible nor likely." P.P., 180 N.J. at 512-
13 (quoting N.J.S.A. 3B:12A-6(d)(3) to (4)). Under the amended statute, KLG
may be a valid defense to the termination of parental rights, even when adoption
is available as an option. See N.J.S.A. 3B:12A-5.
Here, Judge Axelrad's determination is consistent with the 2021
amendments to the KLG statute as adoption may still be considered under the
amended KLG statute. The judge concluded Rachel understood the KLG
alternative after discussions with the Division. Based on those discussions,
Rachel unequivocally rejected KLG, stating she wished to adopt the children.
Having reviewed the record, we are satisfied Judge Axelrad aptly concluded
Rachel's adoption of the children was the most appropriate option because
Rachel would provide a realistic chance for the children to achieve a permanent
and stable home environment.
With respect to the fourth prong, the overriding consideration is the child's
need for permanency and stability. See In re Guardianship of K.H.O., 161 N.J.
337, 357 (1999). "The question to be addressed under [the fourth] prong is
whether, after considering and balancing the two relationships, the child will
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suffer a greater harm from the termination of ties with [the child's] natural
parents than from the permanent disruption of [the child's] relationship with [the
child's] foster parents." Id. at 355.
In weighing any potential harm arising from terminating a parent's rights,
a court must consider expert testimony. In re Guardianship of J.C., 129 N.J. 1,
25 (1992). "[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.
Based on the unrefuted expert testimony of Dr. Lee, Judge Axelrad
concluded there was sufficient credible evidence that termination of Bob's
parental rights would not do more harm than good. Based on the evidence and
testimony, Judge Axelrad properly concluded Rachel, who was the children's
psychological parent since 2019, would provide a stable and permanent home
for the children.
Moreover, under the specific facts in this case, Judge Axelrad rejected
Bob's argument that the Division used his incarceration to justify termination
and failed to provide reunification services simply because he was in prison.
The judge held that once the Division learned of Bob's incarceration, the
Division facilitated Bob's participation in the litigation, kept Bob apprised of the
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children's status, and informed him of Rachel's decision to adopt the children
instead of KLG.
Having reviewed the record, in light of the overwhelming and
uncontradicted evidence, we are satisfied Judge Axelrad correctly concluded the
Division presented clear and convincing evidence in support of termination of
Bob's parental rights under N.J.S.A. 30:4C-15.1.
Affirmed.
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