DCPP VS. K.A.H. IN THE MATTER OF THE GUARDIANSHIP OF S.M.-N.H. ANDS.K.U.C.(FG-07-0131-13, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-3269-14T3
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
K.A.H.,
Defendant-Appellant.
_________________________________________
IN THE MATTER OF THE GUARDIANSHIP OF
S.M.-N.H. and S.K.U.C.,
Minors.
__________________________________________
Argued May 23, 2017 – Decided June 1, 2017
Before Judges Yannotti, Fasciale and
Sapp-Peterson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FG-07-0131-13.
Anastasia P. Winslow, Designated Counsel,
argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Ms.
Winslow, on the briefs).
Joseph Maccarone, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Andrea
M. Silkowitz, Assistant Attorney General, of
counsel; Mr. Maccarone, on the brief).
Olivia Belfatto Crisp, Assistant Deputy Public
Defender, argued the cause for minors (Joseph
E. Krakora, Public Defender, Law Guardian,
attorney; Ms. Belfatto Crisp, on the brief).
PER CURIAM
K.A.H. appeals from an order of the Family Part dated March
3, 2015, which terminated her parental rights to two minor
children, S.M.-N.H. (Sarah) and S.K.U.C. (Sydney).1 K.A.H. also
appeals from an order dated August 12, 2014, which suspended
visitation, and an order dated May 11, 2015, which dismissed this
guardianship action. We affirm.
I.
This appeal arises from the following facts. K.A.H. was born
in September 1990, and thereafter placed in the custody of the
Division of Child Protection and Permanency (Division) because
K.A.H.'s mother left her with her maternal aunt, Ms. S. K.A.H. was
later placed in a group home, but she left the home without
permission. The Division again placed K.A.H. with Ms. S. and
provided financial assistance. In August 2006, K.A.H. gave birth
1
In this opinion, we use initials to identify certain persons,
and fictitious names for the children, in order to protect their
privacy.
2 A-3269-14T3
to Sarah. K.A.H. and Sarah remained with Ms. S. until December 31,
2006, when K.A.H. left the home with the child.
Ms. S. informed the Division that she did not know where
K.A.H. and Sarah were, but the Division located them and removed
them from Ms. S.'s home. The Division placed K.A.H. and Sarah in
separate resource homes, and provided K.A.H. with weekly,
supervised visitation. In April 2007, K.A.H. ran away from her
resource home and left the child behind. At the time, K.A.H. was
pregnant.
In June 2007, the Division placed K.A.H. at Isaiah House, a
residential program for women, children, and adolescents. The
Division also provided K.A.H. with various services. In October
2007, K.A.H. gave birth to a boy, Sydney. K.A.H. and Sydney were
placed in a resource home, and Sarah remained in a separate
resource home. Thereafter, K.A.H. began therapy at Family
Connections. In December 2007, the Division ruled out Ms. S. as a
placement.
In January 2008, the trial court determined that K.A.H. would
not be able to meet Sydney's basic needs without the Division's
intervention. In February 2008, K.A.H. left the resource home with
Sydney. In the months that followed, K.A.H. tested positive twice
for marijuana, and in July 2008, she terminated her therapy at
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Family Connections. Several months later, K.A.H.'s resource parent
informed the Division that K.A.H. smelled of alcohol.
In January 2009, the Division removed Sarah from Ms. S.'s
home and placed her in a resource home with K.A.H. and Sydney. In
April 2009, after an argument with her resource parent, K.A.H.
took the children and left the home. They returned the following
day, but the resource parent asked the Division to remove them.
The Division then placed K.A.H. with her sister, and returned the
children to the resource home. In August 2009, the resource parent
expressed an interest in adopting Sarah, but she was not committed
to adopting Sydney because of certain behavioral problems.
In August 2009, the trial court approved the Division's
permanency plan for termination of K.A.H.'s parental rights
because she had not complied with any of the services provided to
assist her in becoming a functioning parent. The following month,
K.A.H. advised the Division that she was planning to move with her
sister to Pennsylvania. She asked the Division to refer her for
services in that state. In October 2009, K.A.H. visited Sarah and
Sydney. She had not seen them since May 2009.
The Division arranged additional visits and provided
additional services to K.A.H. In December 2009, K.A.H.
participated in a drug and alcohol evaluation at Catholic
Charities. K.A.H. reported using marijuana twenty-five days that
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month. K.A.H. also reported that she had been drinking alcohol.
The Division referred K.A.H. for substance abuse treatment. She
tested positive for marijuana in February, August, and October
2010.
In March 2010, K.A.H. relocated to Pennsylvania. The Division
terminated her substance abuse treatment in New Jersey, but
continued to arrange for K.A.H. to visit the children each month.
In October and November 2010, the Division located services for
K.A.H. in Pennsylvania. The services included parenting skills
classes, individual therapy, and substance abuse counseling.
K.A.H. did not, however, participate in the services.
In December 2010, the Division again placed the children with
Ms. S. In January 2011, K.A.H. surrendered her parental rights to
Sarah and Sydney so that Ms. S. could adopt them. Sarah's
biological father also executed an identified surrender of his
parental rights. In addition, the court terminated the parental
rights of Sydney's biological father following a default and proof
hearing.
Thereafter, Ms. S. was arrested as a result of a domestic-
violence incident. In April 2011, the Division removed the children
from her care and placed them in a new resource home. Several
months later, the new resource parent reported that the children
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were "tearing up her home." The resource parent said that Sydney
was difficult to manage and he had become violent with Sarah.
In July 2011, the court granted the Division's motion and
vacated the judgment of guardianship entered previously. At that
time, Ms. S. expressed a desire to regain custody of the children,
and the Division referred her for therapy. In August 2011, K.A.H.
gave birth to a third child.
The Division then had concurrent goals: reunification or
termination of K.A.H.'s parental rights. The Division informed
K.A.H. that if she wanted to be reunited with Sarah and Sydney,
she would have to comply with the recommended services. From
October to December 2011, the Division reached out to K.A.H. to
arrange for services in Pennsylvania, but she did not contact the
Division.
In November 2011, the Division removed Sarah and Sydney from
the resource home and placed them in another resource home. The
following month, the resource parent asked the Division to remove
Sydney because he had engaged in inappropriate behavior. Sarah and
Sydney were later moved to a new resource home. In December 2011,
the Division ruled out Ms. S. as a possible caretaker because she
had not completed therapy. The children were moved to separate
resource homes after they engaged in inappropriate sexual behavior
with each other.
6 A-3269-14T3
The Division continued to provide services to K.A.H., but she
did not visit the children between September 2011 and mid-February
2012. In March 2012, Ms. S. successfully appealed the Division's
decision ruling her out as a resource placement. The following
month, the Division moved Sydney to another resource home, while
Sarah's placement continued. The Division had psychological and
bonding evaluations performed. The Division's goal at this time
was reunification. The Division informed K.A.H. she would have to
complete services within six months.
In May 2012, Sarah's resource parent asked the Division to
remove Sarah from her home and the Division placed her in another
resource home. In August 2012, K.A.H. informed the Division she
was no longer interested in reunification, and she named T.L. as
a possible relative placement for Sarah and Sydney. Thereafter,
K.A.H. did not maintain regular contact with the children. In
December 2012, Sarah's resource parent reported that Sarah had
been hitting her, and she requested that the Division remove Sarah
from her home. In February 2013, the Division placed Sarah in
another resource home.
In January 2013, the court approved the Division's permanency
plan for termination of K.A.H.'s parental rights, and in March
2013, the Division filed its guardianship complaint. On August 11,
2014, the court entered an order requiring the Division to provide
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K.A.H. with visitation; however, on August 12, 2014, the court
suspended visitation.
In January and February 2015, the court conducted a trial on
the Division's guardianship complaint. At the trial, the Division
presented testimony from its caseworkers and expert witness, Dr.
Mark Singer. K.A.H. and the Law Guardian did not call any
witnesses.
On March 3, 2015, the court filed a written opinion finding
that the Division had established the statutory criteria for
terminating K.A.H.'s parental rights with clear and convincing
evidence. The court entered an order dated March 3, 2015,
terminating K.A.H.'s parental rights to the children. K.A.H.
thereafter filed a notice of appeal.
After the trial court entered its order terminating K.A.H.'s
parental rights, the court conducted further hearings on
visitation and the Division's efforts to license Ms. S.'s home.
The court ordered the Division to provide it with documents from
the children's therapists with their views on whether the children
should have a final visit with K.A.H., and how such a visit would
proceed.
On May 11, 2015, the court dismissed the guardianship action,
but allowed the matter to continue under the Family Part's child-
in-placement docket. Thereafter, K.A.H. filed a motion in this
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court to supplement and clarify the record, and to amend the notice
of appeal to include additional orders.
We granted the motion to amend the notice of appeal as to the
order of August 12, 2014, which suspended visitation, and the May
11, 2015 order, which dismissed the guardianship action. We also
remanded the matter to the trial court, which thereafter entered
an order clarifying the evidence that it relied upon in reaching
its decision. K.A.H. filed an amended notice of appeal on September
18, 2015.
On appeal, K.A.H. argues that: (1) the Division failed to
establish by clear and convincing evidence the statutory criteria
for terminating parental rights; (2) the court erred by suspending
visitation, which unduly prejudiced her at the guardianship trial;
(3) the court erred by dismissing the guardianship action without
addressing all of the issues raised; and (4) she was denied her
constitutional right to effective assistance of counsel.
II.
We turn first to K.A.H.'s argument that the Division failed
to establish all of the statutory criteria for termination of her
parental rights to Sarah and Sydney.
We note initially that parents have a fundamental
constitutional right to raise their children. N.J. Div. of Youth
& Family Servs. v. F.M., 211 N.J. 420, 447 (2012). That right is
9 A-3269-14T3
not, however, absolute and is "tempered by the State's parens
patriae responsibility to protect children whose vulnerable lives
or psychological well-being may have been harmed or may be
seriously endangered by a neglectful or abusive parent." Ibid."The focus of a termination-of-parental-rights hearing is the
best interests of the child." Ibid. The statutory best-interests
of-the-child standard, which is set forth in N.J.S.A. 30:4C-
15.1(a), "aims to achieve the appropriate balance between parental
rights and the State's parens patriae responsibility." N.J. Div.
of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007).
The Division must prove the four statutory factors by clear
and convincing evidence. N.J.S.A. 30:4C-15.1(a); see M.M., supra,
189 N.J. at 280. The factors are not "discrete and separate" but
"relate to and overlap with one another to provide a comprehensive
standard that identifies a child's best interests." In re
Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
The scope of our review of a trial court's decision to
terminate parental rights is limited. N.J. Div. of Youth & Family
Servs. v. G.L., 191 N.J. 596, 605 (2007). "Appellate courts must
defer to a trial judge's findings of fact if supported by adequate,
substantial, and credible evidence in the record." Ibid.A. Prong One
Prong one of the statutory test requires the Division to
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establish that the "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). The trial court found that the Division
had established this prong with clear and convincing evidence.
The court stated that since they were born, Sarah and Sydney's
relationships with K.A.H. have been marked by instability. The
court noted that K.A.H. shirked her parenting responsibilities and
failed to comply with the services the Division had provided. As
a result, the children had numerous placements and were separated
from their mother.
The court found that this lack of permanency put the children
at substantial risk of harm. The court accepted Dr. Singer's
testimony that this lack of permanency had a negative impact on
the children. The court stated:
Dr. Singer testified that without permanency,
children develop lower self-esteem[], have
increased educational issues and problems with
interpersonal relationships. He further found
that multiple placements and separations from
their mother for so long has resulted in
maladaptive behaviors. . . . [K.A.H.] has had
nearly eight years to rectify the issues that
caused her children to be removed from her
care and provide them with stability, but her
unwillingness to comply with services and
Division recommendations has prevented their
return.
The court also found that Dr. Singer had credibly and
persuasively testified that K.A.H.'s decision to move to
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Pennsylvania had disrupted her relationships with the children.
The court noted that Dr. Singer found that this led to a decrease
in her contact with the children, and ultimately the children did
not view K.A.H. as a consistent physical presence in their lives.
The court found that by voluntarily removing herself from this
State, K.A.H. had "created a situation where it became increasingly
difficult [for her] to visit and decreased the amount of quality
time that she [could] spend with her children."
The court also accepted Dr. Singer's opinion that K.A.H.'s
continued use of marijuana, despite previous drug treatment,
suggested substance-abuse dependency. In addition, the court found
that K.A.H.'s repeated non-compliance with services placed the
children at a substantial risk of harm. The court found that
K.A.H.'s refusal to participate in services was "indicative of
[K.A.H.'s] inability to comprehend the seriousness of the issues
that [stood] between her and reunification with the children." The
court further found that by refusing to comply with the services
provided, K.A.H had "effectively prevented reunification and
prolonged the harm to the children."
On appeal, K.A.H. does not dispute the court's findings, but
nevertheless argues that she did not harm the children. She asserts
that her separation from the children was not the result of any
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abuse or neglect on her part, but rather the Division's unilateral
actions. We disagree.
We are convinced that there is substantial credible evidence
in the record to support the trial court's findings. As the court
found, the evidence established that K.A.H. harmed Sarah and Sydney
with her inconsistency and failure to do what was necessary to
regain custody of them. As a result, the children have been in
foster care for most of their lives. This lack of permanency put
the children at substantial risk of harm. We conclude that the
Division presented clear and convincing evidence showing that the
children's safety, health, or development has been endangered by
their parental relationships with K.A.H.
B. Prong Two
Prong two of the statutory test requires the Division to
prove that 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." N.J.S.A. 30:4C-15.1(a)(2). "The second
prong of the statutory standard relates to parental unfitness."
K.H.O., supra, 161 N.J. at 352.
Parental unfitness may be established in two alternative
ways. Ibid. First, the Division may demonstrate that the parent
is "'unwilling or unable to eliminate the harm' that has endangered
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the child's health and development." Ibid. (quoting N.J.S.A.
30:4C–15.1(a)(2)). Second, the Division may show that the parent
"failed to provide a 'safe and stable home for the child' and a
'delay in permanent placement' will further harm the child." Ibid.(quoting N.J.S.A. 30:4C–15.1(a)(2)).
In this case, the trial court found that K.A.H.'s refusal to
participate in or complete services showed that she is unable or
unwilling to remove the harm facing the children. The court noted
that K.A.H. had failed to comply with virtually every service
recommended for her, even though she knew that such compliance was
necessary for reunification with the children
The court also noted that there were prolonged periods in
which K.A.H. did not visit the children. This contributed to the
ongoing harm. The court acknowledged that in August 2014, it had
suspended K.A.H.'s visits with the children. However, before the
court suspended visitation, K.A.H. had not seen the children for
more than a year. The court found that this showed K.A.H.'s
"general disinterest" in consistent visitation with the children,
which contributed to the ongoing harm.
On appeal, K.A.H. argues that the trial court's findings are
not supported by the record. She asserts that her fitness to parent
Sarah and Sydney is shown by the fact that after she aged out of
the foster-care system, she adequately cared for her two young
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children. She contends this demonstrates she was willing and able
to eliminate the initial threat of harm, specifically, her youth,
immaturity, and lack of resources. We are not persuaded by these
arguments.
Here, Dr. Singer testified that although K.A.H. was caring
for her other children, this did not establish that she was capable
of adequately parenting Sarah and Sydney. Dr. Singer pointed out
that Sarah and Sydney are in a different position from their half-
siblings since K.A.H. had not been a consistent presence in their
lives. Moreover, both Sarah and Sydney have emotional and
behavioral issues. There is no evidence showing that K.A.H.'s
other children have such issues.
We conclude that there is substantial credible evidence in
the record supporting the trial court's findings on prong two. The
record contains clear and convincing evidence showing that K.A.H.
was unwilling and unable to eliminate the harm facing Sarah and
Sydney, and a delay in permanent placement will cause further
harm.
C. Prong Three
Prong three of the statutory criteria requires the Division
to establish that it 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
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alternatives to termination of parental rights[.]" N.J.S.A. 30:4C-
15.1(a)(3). The determination of whether the Division made
reasonable efforts depends upon the circumstances of a particular
case. N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super.
576, 620 (App. Div.), certif. denied, 192 N.J. 68 (2007).
Moreover, the reasonableness of the Division's efforts is not
measured by whether they were successful. In re Guardianship of
D.M.H., 161 N.J. 365, 393 (1999). Indeed, "even [the Division's]
best efforts may not be sufficient to salvage a parental
relationship." F.M., supra, 211 N.J. at 452.
In its opinion, the trial court noted that the Division had
provided K.A.H. numerous opportunities to participate in services,
but she did not avail herself of these opportunities. The court
found that the Division made reasonable efforts toward
reunification and explored alternatives to termination of parental
rights.
The court noted that at the time of the trial, the Division
was re-evaluating Ms. S., but placements with other relatives had
been ruled out. The court observed that at the time of the trial,
Sarah was residing in a home with foster parents who are willing
to adopt her, and Ms. S. has expressed an interest in adopting
Sydney if he becomes legally free and her home is deemed
appropriate.
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K.A.H. argues, however, that the court's analysis is not
supported by sufficient evidence. She contends the court's finding
that she did not comply with services is not based on the entire
record. She asserts that the services that the Division offered
to her were not tailored to her circumstances. K.A.H. further
argues that the court's conclusion that there were no alternatives
to termination of parental rights was clearly erroneous because
establishing a permanent placement with relatives, such as Ms. S.,
was an option from the inception of the case.
These arguments are without sufficient merit to warrant
extended comment. R. 2:11-3(e)(1)(E). We note, however, that the
record shows that since 2006, the Division provided K.A.H. with
numerous services. K.A.H.'s claim that these services were not
tailored to her circumstances is not supported by the record. The
Division also considered alternatives to termination of parental
rights, and found that there were no such alternatives. We note
that because adoption is feasible and likely, kinship legal
guardianship was not an option. See N.J. Div. of Youth & Family
Servs. v. P.P., 180 N.J. 494, 512 (2004).
D. Prong Four
The fourth prong of the statutory standard requires the
Division to establish that "[t]ermination of parental rights will
not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The focus
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of the fourth prong is on the effect termination of parental rights
will have upon the child. G.L., supra, 191 N.J. at 609.
Here, the trial court found that the Division had presented
clear and convincing evidence to establish prong four. The court
explained:
In the present case, [Sarah] has bonded with
her resource parents who have provided
something that her biological parents cannot:
a safe and stable home. . . .
Dr. Singer testified that if [Sarah] were to
be removed from her resource parents, she will
likely experience loss that would result in
"significant and enduring harm." Given
[Sarah]'s previous diagnoses, Dr. Singer
opined that "severing this relationship would
further traumatize this child and would likely
have significant implications regarding her
short and long term emotional functioning."
Dr. Singer further found that [Sarah] views
her resource parents as her psychological
parents, and have become her primary
nurturers, the people that [Sarah] looks to
for security. . . .
. . . .
Even conceding that at the last bonding
evaluation, [Sydney] demonstrated some bond
with [K.A.H.], the record is replete with
evidence that demonstrates that [K.A.H.] is
unfit to parent this child. [K.A.H.] has had
eight years to remedy the issues that led to
[Sydney] being placed out of her care.
[K.A.H.]'s refusal to engage with the Division
clearly supports the conclusion that
terminating her parental rights will not do
more harm than good for [Sydney].
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It is Dr. Singer's expert opinion . . . [that
the evidence] supports [pursuing] termination
of [K.A.H.'s] parental rights so that [Sydney]
could be free to achieve the consistency and
stability that comes with adoption. Plainly,
Dr. Singer's prediction is that [Sydney's]
behaviors will continue to worsen over time,
without permanency and stability. He further
asserts that [Sydney] cannot achieve
permanency with [K.A.H.], due to her inability
to parent. This [c]ourt agrees.
On appeal, K.A.H. argues that the court erred because it did
not apply the balancing test required by K.H.O. She contends the
court should have considered and balanced the various
relationships, and determined whether the children would suffer a
greater harm from termination of her parental rights than from a
permanent disruption of their relationships with the foster
parents. K.H.O., supra, 161 N.J. at 363.
We are not persuaded by K.A.H.'s arguments. The trial court's
finding that the Division established prong four is supported by
sufficient credible evidence in the record, including Dr. Singer's
testimony. Notwithstanding K.A.H.'s arguments to the contrary, the
trial court considered and balanced the various relationships
involved, and properly determined that termination of K.A.H.'s
parental rights to Sarah and Sydney will not do more harm than
good.
III.
Next, K.A.H. argues that the trial court erred by suspending
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visitation, which she claims prejudiced her at the guardianship
trial. She contends that the court did not conduct the hearing at
which visitation was suspended with the requisite formalities to
support such a decision, and the court based its decision on
unreliable hearsay, specifically an email and letters from the
children's treating therapists.
The record shows that on August 11, 2014, while K.A.H. was
in New Jersey to attend a funeral, she appeared for a hearing and
requested visitation with Sarah and Sydney. K.A.H. also requested
visitation in Pennsylvania and asked the court to order the
Division to transport Sarah and Sydney to Pennsylvania to
facilitate such visitation.
The Division objected to the request, noting that the then-
current permanency plan was for termination of K.A.H.'s parental
rights, not reunification. The Division noted that K.A.H. had not
visited with the children in approximately one year. The court
permitted visitation while K.A.H. was in New Jersey, and the visit
was supposed to occur the next day. The court reserved its decision
on additional visitation in Pennsylvania pending the outcome of
the New Jersey visit.
The following day, at the Division's request, the court
conducted an emergent hearing regarding K.A.H.'s visit with the
children. K.A.H. was represented by counsel, but it appears that
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K.A.H. was not personally notified of the hearing. K.A.H.'s
attorney proceeded in her absence without objection.
The Division opposed visitation, arguing that it would not
be in the best interests of the children and that it would be
harmful to them. In support of its application, the Division
presented an email and letters from the children's treating
therapists, who did not recommend visitation at that time. K.A.H.'s
counsel did not object to the court's consideration of the
therapists' statements.
The court noted that K.A.H. had not been an active part of
the children's lives for "many, many years." The court also pointed
out that neither of the statements from the children's therapists
indicated that visitation should never happen, but rather that it
should not happen at this time. The court found that because there
was no "real possibility of reunification in this case as it stands
now, [visitation does not] make sense for these children at this
time."
The court ordered the Division to have the children's
therapists speak with K.A.H. about the impact her visitation would
have on the children and her level of commitment to them. The
court stated that K.A.H.
needs to make a commitment that no matter how
we have to arrange it, at a certain time and
a certain place and date, she's going to be
21 A-3269-14T3
there for the children and they're going to
know she's there.
So let's start by setting up something for her
to visit with the clinicians and let's start
it from that perspective. I'm certainly not
trying to stop any mother from seeing their
children if that's what she wants to do.
Because K.A.H's attorney did not object to the admission of
the therapists' statements into evidence, we review the court's
consideration of the therapists' statements for plain error. We
conclude that the court's consideration of this evidence does not
rise to the level of plain error because it was not "clearly
capable of producing an unjust result." R. 2:10-2.
The court did not err by suspending K.A.H.'s visitation, in
view of her failure to visit with the children for a substantial
period of time and the need for K.A.H. to demonstrate a commitment
to them. As noted, the court ordered K.A.H. to speak with Sarah
and Sydney's therapists to explore the possibility of future
visitation and to discuss her commitment to her children. The
record shows that K.A.H. did not do so.
Furthermore, even if the court erred by suspending visitation
on August 12, 2014, it would not have affected the court's ultimate
disposition of the case. Indeed, she had previously failed to
maintain consistent visitation with the children. K.A.H.'s lack
of visitation from August 2014 until February 2015, was only one
22 A-3269-14T3
of the factors the court considered in determining that K.A.H.'s
parental rights should be terminated.
IV.
K.A.H. argues that the trial court erred by dismissing the
litigation on May 11, 2015. She argues that the court left in
abeyance issues regarding visitation, the licensing of Ms. S.'s
home, Sydney's placement with Ms. S., and the adjudication of the
therapists' recommendations on the benefits of visitation. K.A.H.
argues that, by dismissing the action the court did not
"scrupulously safeguard" her "due process interests" and those of
the children. We disagree.
The record shows the following. On March 3, 2015, after the
conclusion of the guardianship trial, the trial court issued a
written opinion, together with a final order, terminating K.A.H.'s
parental rights to Sarah and Sydney. The order scheduled a summary
hearing "under the open FC [child-in-placement] docket" on May 11,
2015, "to track the status of the adoption filing." On May 11,
2015, the court conducted that hearing and issued an order
dismissing the guardianship action. The court ordered that "the
matter will continue to be reviewed under the open FC dockets."
K.A.H.'s arguments on this issue are without sufficient merit
to warrant discussion. R. 2:11-3(e)(1)(E). We add the following
comments.
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When the court entered its order terminating K.A.H.'s
parental rights and awarding guardianship of the children to the
Division, the order effectively concluded the guardianship
proceedings. The court appropriately determined that issues
regarding visitation, the licensing of Ms. S.'s home, and Sydney's
adoption could be addressed in the court's child-in-placement open
dockets. We reject K.A.H's contention that, by dismissing the
guardianship action, the court did not "scrupulously safeguard"
her right to due process.
V.
K.A.H. also argues that she was denied the effective
assistance of counsel in these proceedings. She contends that her
attorney failed to investigate the matter adequately. She argued
that her attorney did not argue controlling law on issues regarding
the children's placement with Ms. S. as an alternative to
termination of her parental rights.
It is well established that when the Division seeks to
terminate a person's parental rights, the parent has the right to
the assistance of counsel. N.J. Div. of Youth & Family Servs. v.
B.R., 192 N.J. 301, 305-07 (2007). A party who claims he or she
has been denied the effective assistance of counsel in such a
proceeding must show that counsel's performance was objectively
deficient, and that counsel's deficient performance prejudiced the
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defense. Id. at 307 (citing Strickland v. Washington, 466 U.S.
668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984)).
On appeal, K.A.H. argues that her trial attorney erred by
failing to meet with Ms. S., visit her home, or review her
licensing paperwork. She contends that after the Division ruled-
out Ms. S. as a placement, counsel did not file a motion in the
trial court or assist Ms. S. in challenging the rule-out decision.
She claims her attorney did not track the status of the appeal,
and did not inform the court that Ms. S. was successful in her
appeal.
K.A.H. further claims that the Division had numerous
opportunities to place the children with Ms. S., rather than have
them subjected to multiple placements. She contends that there is
a reasonable probability that, if her attorney maintained contact
with Ms. S., investigated the January 2011 incident in which Ms.
S. was arrested as a result of a domestic-violence incident, and
tracked the status of her rule-out appeal, the result of the
proceeding would have been different.
We cannot agree. Even if K.A.H.'s attorney had taken the
actions that K.A.H. asserts should have been taken, the result
here would not have been different because there was clear and
convincing evidence showing that the termination of K.A.H.'s
parental rights was in the children's best interests. As we have
25 A-3269-14T3
explained, the evidence clearly and convincingly established that
the children had been harmed by their relationship with K.A.H.,
and she was unable or unwilling to eliminate that harm.
It is undisputed that K.A.H. failed to complete virtually all
of the services necessary to regain custody of the children. As a
result, the children were subjected to multiple placements. The
lack of permanency caused the children to suffer further harm.
K.A.H. also failed to maintain consistent visitation. Dr. Singer
testified that termination of K.A.H.'s parental rights was
necessary so the children could be adopted and achieve the
permanency they require.
We conclude that K.A.H. has not shown that if her attorney
had handled the matter differently, her parental rights would not
have been terminated. Therefore, she has not shown that she was
denied the effective assistance of counsel.
Affirmed.
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