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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2073-24
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
A.E.,
Defendant-Appellant,
and
J.W. (deceased),
Defendant. ___________________________
IN THE MATTER OF THE GUARDIANSHIP OF S.W., a minor. ___________________________
Argued January 8, 2026 – Decided January 15, 2026
Before Judges Mawla, Marczyk, and Bishop- Thompson. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-0015-23.
Adrienne Kalosieh, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Adrienne Kalosieh, of counsel and on the briefs).
Mary L. Harpster, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Janet Greenberg Cohen, Assistant Attorney General, of counsel; Mary L. Harpster, on the brief).
Julie E. Goldstein, Assistant Deputy Public Defender, argued the cause for minor S.W. (Jennifer N. Sellitti, Public Defender, Law Guardian, attorney; Meredith Alexis Pollock, Deputy Public Defender, of counsel; Julie E. Goldstein, of counsel and on the brief).
PER CURIAM
Defendant A.E.1 appeals from a February 24, 2025 guardianship judgment
terminating her parental rights to her daughter, S.W. We affirm.
Defendant has a long history of involvement with the Division of Child
Protection and Permanency (Division), commencing in 2013 when police
reported she and then nine-month-old S.W. were homeless. In 2019, the
Division received referrals regarding defendant's physical abuse and neglect of
1 We use initials pursuant to Rule 1:38-3(d). A-2073-24 2 S.W. Defendant's unaddressed mental illness was the primary cause of the
referrals. The Division ultimately substantiated defendant for neglect and
employed family preservation services to assist her, but she continued to deny
any mental health issues and failed to benefit from the services.
In 2020, defendant's mother, R.S., who resided in North Carolina, agreed
to take in S.W. Meanwhile, defendant refused to attend a psychiatric evaluation.
A psychological evaluation performed by the Division's expert concluded
defendant's mental health put S.W. at risk. While S.W. resided with R.S., the
Division began to evaluate whether the child could be placed with her biological
father and paternal grandmother. North Carolina Child Protective Services
conducted a welfare check on R.S. and S.W., and reported the child was doing
well and enjoyed living with her grandmother. However, R.S. would not allow
the North Carolina authorities to walk through her home. In October 2020, R.S.
ultimately returned the child, expressing she "tried to help out but . . . needed to
get back to work" and "could no longer care for her granddaughter."
Defendant continued not to address her mental health issues, or complete
the treatment and counseling provided by the Division. In September 2021, the
Division received a referral from a hospital advising defendant was admitted
after she gave birth at home in S.W.'s presence. The Division had no knowledge
A-2073-24 3 defendant had been pregnant. It entered a safety protection plan with defendant
and the newborn child's father, 2 which required defendant to participate in
mental health services and be supervised while she was with the newborn. The
Division continued to provide services to the family.
R.S. told the Division she was willing to care for defendant's children in
North Carolina if the Division provided financial assistance. A few weeks after
delivering the newborn, defendant became psychiatrically hospitalized and was
given outpatient services. An officer who responded to defendant's home
testified it had "a heavy in[fest]ation of cockroaches on the walls and in the
bed," and he had to stop S.W. from consuming cereal with spoiled milk. Because
neither S.W.'s father nor the father of defendant's other child could care for
S.W., the Division removed S.W. and placed her in a non-relative resource
home, where she has remained since. The trial judge granted the Division
custody of S.W. following the removal. The Division began searching for
relative placements.
In November 2020, the hospital discharged defendant after she declined
services. Although the Division attempted to arrange visits between defendant
and S.W., defendant did not see S.W. until December.
2 This is not S.W.'s father. A-2073-24 4 The Division had S.W. psychologically evaluated in October 2021. The
evaluator diagnosed the child with "[u]nspecified [t]rauma- and [s]tressor-
[r]elated disorder," and recommended individual psychotherapy. S.W. reported
she was doing well in the resource home. The resource parent described S.W.
as a "very talented child," but noted she occasionally engaged in destructive
behavior and had irregular sleep habits.
In December 2021, the judge ordered the Division to obtain an Interstate
Compact on the Placement of Children (ICPC) assessment of R.S. The Division
followed suit and sought a foster home study because R.S. had requested
financial assistance. In April 2022, the North Carolina authorities denied the
ICPC request, noting R.S. "was a known perpetrator for improper discipline on
her own biological children in 1995 and 2001." R.S. claimed she did not recall
her alleged mistreatment of her children. As a result of the ICPC, the Division
could not place S.W. with R.S., but nonetheless continued phone contact and
encouraged visits between her and the child.
In February 2022, therapeutic visitation between defendant and S.W. was
suspended because S.W. became "visibly distraught" during a visit due to
defendant's "disordered thought content, symptomatic behavior, and emotional
dysregulation." In March 2022, defendant appeared at a Division office,
A-2073-24 5 asserting she worked in cybersecurity and the hospital "inject[ed mental health]
services into her head." She claimed "everyone was lying" about her diagnoses
and she was being watched. In April 2022, the judge suspended defendant's
visits until she complied with mental health services. After this point, defendant
had no further visits with S.W.
Defendant was psychiatrically hospitalized in June and July 2022. She
claimed she was a doctor who worked at the hospital and that her prior
hospitalizations were a mistake. Defendant denied having mental health issues
or requiring medication, and inconsistently complied with taking her
medication. She was discharged to a behavioral health program, where she
continued to manifest poor mental health and denied having a mental health
history.
The Division continued to search for relative placements in July and
August 2022. However, the prospective placements either did not respond or
claimed they did not know the family. In August 2022, R.S. admitted she had
beaten defendant with a curtain rod in 1991. Defendant expressed gratitude that
S.W. would remain in New Jersey when she heard about the attempt to place the
child with R.S.
A-2073-24 6 In September 2022, the judge approved the Division's permanency plan to
place S.W. with her father, but he subsequently died in November 2022. The
Division changed its permanency plan to a termination of parental rights
followed by adoption. The judge rejected the Division's plan in December 2022,
January 2023, and February 2023. Meanwhile, the Division assessed fifteen
potential relative placements it had identified at S.W.'s father's funeral, plus the
deceased father's girlfriend, and requested R.S.'s records from North Carolina to
continue evaluating her.
In December 2022, S.W.'s resource parent informed the Division she
would only consider adoption because she had a prior negative experience with
kinship legal guardianship (KLG). The resource parent understood KLG gave
her decision-making authority for S.W., but explained experience taught her "if
a birth parent is saying the opposite, it becomes too complicated for the child ."
The record indicates defendant lost contact with the Division for several
months before she appeared on December 13, 2022, for the final hearing in the
FN phase of the case. In January 2023, defendant reported she was too busy
running for President of the United States to attend subsequent court hearings.
In February 2023, the trial judge approved the Division's permanency plan
of termination of parental rights followed by adoption. The prior month, R.S.
A-2073-24 7 informed the Division she would care for S.W. without financial assistance. In
April 2023, at the initial hearing on the Division's order to show cause following
the filing of the guardianship complaint, defendant's attorney advised R.S.
would be seeking custody of S.W. Later that month, the Division reminded R.S.
she needed to file a complaint for custody because her substantiation of abuse
in North Carolina prevented the Division from placing S.W. with her. The
Division also facilitated visitation by flying R.S. to New Jersey in May 2023.
R.S. filed a non-dissolution complaint for custody on May 25, 2023.
Defendant's attorney also asked the judge to place the child with R.S. However,
S.W. told the Division she did not want to be adopted by R.S. because her
resource parent was "very kind and loving" and she wanted to stay with her to
finish school and continue her extracurricular activities. She did not mind
continuing contact with R.S. and occasionally visiting her.
The potential relative placements contacted by the Division either did not
respond or were unable or unwilling to care for S.W. Defendant's whereabouts
were unknown between January and August 2023.
R.S. denied abusing defendant and claimed her late husband was the
abuser. However, in August 2023, the Division received records from North
Carolina showing R.S. was substantiated for abusing her children on two
A-2073-24 8 occasions. Notwithstanding these findings, the Division brought R.S. to New
Jersey in August 2023 for visitation and psychological and bonding evaluations
by its expert and the Law Guardian's expert.
Although the Law Guardian's expert found S.W. had a secure emotional
attachment to R.S., the child did not view her grandmother as a "primary
provider of her needs." R.S. was unable to provide S.W. with a safe and stable
home. The expert opined disrupting S.W.'s placement and relationship with her
resource parent and peers would cause her significant emotional harm. The
Division's expert reached similar conclusions.
Defendant resurfaced and attended court on August 22, 2023. She refused
to provide her contact information except for an email address, and claimed she
had been attending medical school and operated a cleaning business with 59,000
clients. Although defendant promised to attend future court proceedings, she
did not appear again until a November 2, 2023 hearing. She also missed several
psychological evaluations.
The trial judge initially scheduled the non-dissolution custody hearing for
September 2023 and the guardianship trial for the following month. However,
defendant's attorney requested an adjournment of the custody hearing to retain
an expert evaluation. The judge adjourned both trials. Although R.S. was upset
A-2073-24 9 about the adjournment and having to submit to another evaluation, the Division
transported her to New Jersey so defendant's expert could evaluate her in
October 2023.
Defendant's mental health did not improve. She was involuntarily
committed in November 2023. Following a sixteen-day hospital stay, she was
discharged to a behavioral health program where she remained through April
2024. Thereafter, defendant was discharged to a long-term partial care program.
She continued to deny her symptoms and contest her diagnosis.
At a January 16, 2024 hearing, the Division informed the judge the expert
retained by defendant's attorney had previously evaluated defendant on behalf
of the Division in 2020. The trial judge held a N.J.R.E. 104 hearing and the
parties agreed there was a conflict. As a result, the judge adjourned both trials
and the defense retained another expert.
In February 2024, R.S. and the resource parent attended mediation.
Afterwards, they entered a consent order memorializing R.S. had withdrawn her
application for custody and the non-dissolution complaint would be dismissed
without prejudice. R.S. was represented by counsel in the non-dissolution
matter. Subsequently, in March and April 2024, the Division and the Law
Guardian's experts, respectively, completed their psychological evaluations of
A-2073-24 10 defendant, and both opined she could not safely care for S.W. for the foreseeable
future.
On May 2, 2024, the defense informed the judge it would not submit any
expert reports. Later that month, the defense attempted to submit a letter from
a new expert, opining defendant should have visitation with S.W. The Law
Guardian objected to the letter because it constituted a net opinion. The judge
did not consider the letter but granted the defense an adjournment of the
guardianship trial to allow more time to prepare because defendant was
receiving a new attorney as her prior attorney was leaving the Office of Parental
Representation.
The guardianship trial took place over six days between September and
October 2024. The Division presented the testimony of: two caseworkers; an
adoption worker; the clinical director of the long-term partial care program and
a psychiatrist for the program; the officer who responded to defendant's home
after she gave birth to S.W.'s sibling; a clinician; and two psychological experts.
The judge admitted 132 exhibits into evidence on behalf of the Division. The
Law Guardian presented testimony from the resource parent and a psychological
expert, as well as introduced five exhibits into evidence. Defendant presented
testimony of a psychiatric social worker from the behavioral health program.
A-2073-24 11 The trial judge issued a comprehensive written decision and detailed how
each of the witnesses who testified was credible. He concluded the Division
proved each of the statutory best interests prongs under N.J.S.A. 30:4C-15.1(a).
The judge found the Division proved prong one because "[t]he
uncontroverted evidence [showed defendant] suffers from severe psychological
and psychiatric impairments that have rendered her incapable, to date, of
parenting [S.W.]." Defendant's "commitment to staying the course and doing
essentially nothing to change or control her mental health status evidence[d] a
clear and present danger to [S.W.]'s health, safety[,] and welfare." In addition
to crediting the experts' diagnoses of defendant and the deleterious effects on
S.W., the judge detailed the history of referrals and the child's corroboration of
those incidents as further evidence defendant could not, or would not, be capable
of caring for S.W. He noted the caseworkers' testimony further corroborated his
conclusion that defendant's condition had not improved despite years of working
to provide her with mental health and other services. Defendant's "mental health
condition, coupled with her complete failure to acknowledge her mental health
issues and her corresponding failure to engage in meaningful treatment [,] . . .
[c]ollectively[] . . . pose[d] a real threat to [S.W.]'s safety, health, and
development."
A-2073-24 12 The judge found the second prong of the best interests test was proven by
the fact defendant was in the same position as when the case began. Defendant
"failed to take advantage of the various services offered to her by the Division
consisting of psychological and psychiatric evaluations, mental health treatment
referrals, medication management, housing assistance, transportation assistance,
searches for relatives and an ICPC evaluation of [the] maternal grandmother and
paternal grandfather, and therapeutic visitation."
The judge recounted in detail the nature of these services and how
defendant fared in taking advantage of them. Her lack of progress was
evidenced by the fact she remained in a group home for adults, which "is no
place for a child; and there has been no evidence presented to indicate that if
[S.W.] were reunified with her mother that she could live and thrive there." He
noted defendant was enrolled in a voluntary program, which did not monitor her
daily medication intake and, "[b]y all accounts, [the evidence showed her]
compliance with her medication regimen [was] very much in doubt." She had
"loose associations and could carry on a conversation, but the conversation was
not 'linear.'" At least six witnesses "experienced [defendant]'s grandiose
behavior, noting how [she] would describe herself inconsistently as an EMT , a
caseworker, and a medical student." Even when defendant participated in
A-2073-24 13 services, such as group sessions, she required redirection and, on occasion,
became physically aggressive.
The judge observed defendant's condition did not improve despite the fact
she "received the most consistent and intense treatment she had ever received
during the Division's involvement." The judge credited the testimony of more
than one expert who found defendant could not effectively care for herself, let
alone S.W. He concluded her "capacity to parent [S.W.] ha[d] not improved,
. . . no evidence ha[d] been presented to show that it will improve any time soon,
and there [wa]s no realistic likelihood [she] w[ould] be able to parent . . . any
time in the near future."
The trial judge found the Division proved it provided reasonable efforts
to reunify defendant with S.W. because, "for nearly five years[,] the Division
has provided [defendant] with consistent efforts to provide her with the tools
and services needed to stabilize herself and parent [S.W.] safely." The judge
recounted at least nine categories of services the Division provided and how
defendant failed to take advantage of them. It was "also uncontroverted that the
Division's efforts to have [defendant] engage in services ha[d] never stopped.
Even at the time of trial[,] the Division presented sufficient credible evidence to
A-2073-24 14 show that it was actively engaged with [defendant] . . . ." The judge rejected
defendant's argument the Division took a passive approach to assisting her.
As for exploring relative placements, the judge recounted how the
Division twice considered R.S., as well as the paternal grandfather, a paternal
uncle, and the biological father's girlfriend. The judge credited the reasons why
R.S. was excluded as a placement and explained R.S. withdrew her custody
application following mediation with the resource parent "so that [S.W.] could
remain with [the resource parent]." The Division contacted at least sixteen
potential placements, but they "never responded or chose not to be assessed."
The judge further found the resource parent had a "fully informed
commitment to adoption after being advised of and understanding the
differences between KLG and adoption." The evidence showed the resource
parent had several children in her care, had been a KLG in a different case, and
only wanted to adopt S.W.
The judge concluded termination of parental rights followed by adoption
would not do more harm than good. "Indeed, adoption by [the resource parent ]
[wa]s the path toward a continued safe and stable future for [S.W.]." The
uncontroverted evidence showed S.W. was thriving in the resource parent's
custody "receiving the love, care, and attention . . . she needs and rightfully
A-2073-24 15 deserves." S.W. participated in several extracurricular activities and was "doing
very well academically." He noted she and the resource mother displayed a
mutual affection and "[were] always engaged in conversation."
Although S.W. loves defendant, the judge noted she had "no qualms"
about expressing her desire to be adopted by the resource mother. "She has
stated that to the Division, the Law Guardian, and every expert that has provided
an evaluation in this matter." The judge credited the Law Guardian's expert,
who explained S.W. "'lost her mother long ago' and views [the resource mother]
as her psychological parent because she meets her daily needs." Extensive
individual therapy had helped the child process the loss of her mother. Thus, a
termination of parental rights would not cause "any significant trauma," and if
there was any, the resource mother would "help mitigate any harm to [S.W.]
because of the relationship they have developed over the last [five] years."
On the other hand, the judge explained defendant was "caught in a vortex
of mental health issues that impact[ed] every facet of her life. Her mental illness
essentially prohibits her from obtaining the treatment she needs . . . to maintain
a safe and stable environment for [S.W.] . . . ." He credited the Division's expert
who testified "that in [the resource parent, S.W.] found a safe and nurturing
home where her daily needs are consistently met." Returning S.W. to
A-2073-24 16 defendant's care "would place [S.W.] back in the position of being the caretaker
for [defendant] rather than the other way around." He concluded defendant was
unable to care for S.W. and would not be able to do so in the foreseeable future.
The trial judge found "no evidence in the record that any harm w[ould]
occur to [S.W.] should [defendant]'s parental rights be terminated." Defendant
was unfit to parent, the child would be harmed if returned to her, and it was
contrary to her best interests "to prolong the opportunity of permanency because
of [defendant]'s inability and unwillingness to remedy the concerns that led to
[S.W.]'s removal."
I.
Our scope of review of a judgment terminating parental rights is limited.
N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007). We will
uphold a trial judge's fact findings if 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). Deference is owed to the judge's credibility
determinations "based upon [their] opportunity to see and hear the witnesses."
N.J. Div. of Youth & Fam. Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div.
2006). No deference is given to a judge's interpretation of the law, which we
A-2073-24 17 review de novo. N.J. Div. of Youth & Fam. Servs. v. I.S., 202 N.J. 145, 183
(2010).
The best interests of the child standard is codified in N.J.S.A. 30:4C-
15.1(a), and requires the Division prove by clear and convincing evidence the
following four 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 division 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
(4) Termination of parental rights will not do more harm than good.
"The four criteria enumerated in the best interests standard are not discrete and
separate; they 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).
A-2073-24 18 II.
Defendant challenges the trial judge's prong three findings. She contends
he should not have deferred to the Division's decision not to place S.W. with
R.S. Defendant argues S.W.'s placement with a non-relative resource parent
over a fit grandparent violates Titles 9 and 30. She claims the Division used the
ICPC as a barrier to prevent the child's placement with family. Moreover, the
non-dissolution custody and guardianship processes were used to pit R.S.
against the resource parent to determine who was the better parent, which is not
a proper consideration under N.J.S.A. 30:4C-15.
Defendant also challenges the judge's prong four findings. She contends
the Division did not provide the judge with information about R.S.'s fitness. The
judge gave too much weight to R.S.'s withdrawal of the non-dissolution
application as well as the resource parent's preference, which was colored by the
Division's input.
Pursuant to N.J.S.A. 30:4C-15.1(c), "reasonable efforts to provide
services" under prong three means "attempts by . . . the [D]ivision to assist the
parents in remedying the circumstances and conditions that led to the placement
of the child and in reinforcing the family structure." A court's "evaluation of
the efforts undertaken by [the Division] to reunite a particular family must be
A-2073-24 19 done on an individualized basis." In re Guardianship of DMH, 161 N.J. 365,
390 (1999). "'Reasonable efforts' will vary depending upon the circumstances
of [a child's] removal." N.J. Div. of Youth & Fam. Servs. v. F.H., 389 N.J.
Super. 576, 620 (App. Div. 2007). The Division must focus on reunification,
and the services utilized to facilitate this must be "'coordinated' and . . . have a
'realistic potential' to succeed." N.J. Div. of Youth & Fam. Servs. v. L.J.D., 428
N.J. Super. 451, 488 (App. Div. 2012) (quoting N.J. Div. of Youth & Fam.
Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002)). Nevertheless,
"[t]he diligence of [the Division]'s efforts on behalf of a parent is not measured
by [its] success," DMH, 161 N.J. at 393, particularly where the lack thereof is
due to a parent's "failure to cooperate or follow through" with services and
obligations. N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J. Super. 76, 119
(App. Div. 2004).
N.J.S.A. 30:4C-12.1(a) requires the Division to search for relatives and
friends "who may be willing and able to provide the care and support required
by the child." Because the best interests of the children are paramount, a parent's
desires or objections to potential placements do not dictate the Division's
considerations. See N.J. Div. of Youth & Fam. Servs. v. K.L.W., 419 N.J. Super.
568, 577-79 (App. Div. 2011). A "[d]elay of permanency or reversal of
A-2073-24 20 termination based on the Division's noncompliance with its statutory obligations
is warranted only when it is in the best interests of the child." Id. at 581.
KLG "cannot be used as a defense to the proper termination of parental
rights." N.J. Div. of Youth & Fam. Servs. v. H.R., 431 N.J. Super. 212, 233
(App. Div. 2013). Trial courts must "consider the totality of the circumstances
in deciding whether to terminate parental rights." N.J. Div. of Child Prot. &
Permanency v. D.C.A., 256 N.J. 4, 17 (2023).
The fourth best interests 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 G.L., 191
N.J. at 609). "The question ultimately is not whether a biological [parent] is a
worthy parent, but whether a child's interest will best be served by completely
terminating the child's relationship with th[e] parent." N.J. Div. of Youth &
Fam. Servs. v. E.P., 196 N.J. 88, 108 (2008). A "'termination of parental rights
likely will not do more harm than good' where the child has bonded with the
resource parents in a nurturing and safe home." L.J.D., 428 N.J. Super. at 492
(quoting E.P., 196 N.J. at 108). "The crux of the fourth statutory subpart is the
child's need for a permanent and stable home, along with a defined parent -child
A-2073-24 21 relationship." H.R., 431 N.J. Super. at 226. "Overall, the court's focus should
be on the child's need for permanency." Id. at 227.
Pursuant to these principles, we are satisfied the trial judge's prong three
and four findings were supported by the evidence in the record, and the
conclusions drawn from those facts are unassailable. We affirm substantially
for the reasons expressed in the judge's well-written opinion and add the
following comments.
The judge correctly found the Division met its reasonable efforts
obligation under the law. The record is replete with the Division's efforts to
locate a relative resource for placement, including but not limited to R.S.
However, none of the relatives the Division located were willing to assist.
Defendant does not point us to where the record indicates otherwise.
R.S.'s exclusion as a placement was appropriate. The ICPC was not used
to thwart placing S.W. with R.S. Because the Division had custody of S.W., it
could not legally place S.W. with R.S. without first licensing R.S. The ICPC
was the proper means of doing so.
More importantly, the process fulfilled its purpose of helping the Division
understand whether it was in the child's best interests to be placed with her
grandmother. Although the law provides licensure may be denied if there is "[a]
A-2073-24 22 determination that an incident of child abuse or neglect by a resource family
parent applicant . . . has been substantiated," the Division still "may issue the
license if [it] determines that the resource family parent applicant . . . poses no
continuing risk of harm to the child and the issuance of the license is in the
child's best interests." N.J.S.A. 30:4C-27.9(d). The record is clear it was not in
S.W.'s best interests to be placed with R.S. because of R.S.'s own history of
abusing defendant, about which she was untruthful. S.W. also revealed R.S. had
screamed at her and hit her on her arm, during her clinical interview with the
Law Guardian's expert.
The record shows the Division's decision regarding R.S. was not based
solely on the outcome of the ICPC, but consideration of S.W.'s best interests and
the totality of the circumstances. We reach a similar conclusion regarding the
trial judge's prong three findings as well.
The remainder of defendant's arguments relating to the judge's prong three
and four findings lack merit. We add only that R.S. mediated and then
voluntarily withdrew her non-dissolution custody application. The record does
not support the contention the judge's findings were founded upon R.S.'s
withdrawal of the custody application. He cited several other reasons why it
was in S.W.'s best interests to remain with her non-relative placement, who
A-2073-24 23 intended to adopt her, rather than with R.S. The record also does not support
any credible argument that something other than the termination of parental
rights followed by an adoption by S.W.'s caregiver was in the child's best
interests.
III.
Defendant asserts she received ineffective assistance of counsel from her
first trial counsel because the attorney did not oppose S.W.'s placement with a
non-relative resource parent and allowed R.S. to become adverse to the Division
by filing a non-dissolution complaint. Counsel was also ineffective because she
retained an expert who had a conflict of interest.
Defendant claims her second trial counsel was ineffective because he did
not secure a new expert evaluation, which deprived the trial judge of critical
information regarding the bond between R.S. and S.W. She argues counsel was
also ineffective because he prevented the Law Guardian's expert from testifying
regarding the bond between R.S. and the S.W.
A party in a parental-rights-termination case has a constitutional right to
effective counsel. N.J. Div. of Youth & Fam. Servs. v. B.R., 192 N.J. 301, 306
(2007). To establish an ineffective-assistance-of-counsel claim in a parental-
rights-termination case, the aggrieved party must meet the two-prong test
A-2073-24 24 established in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted
in State v. Fritz, 105 N.J. 42, 58 (1987). B.R., 192 N.J. at 308-09. This requires
showing trial counsel's performance was deficient and, but for the deficient
performance, the result would have been different. Id. at 307-09. Our review
is guided by "a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance;" the party claiming ineffective
assistance of counsel must overcome the presumption "the challenged action
'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting
Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also B.R., 192 N.J. at 307-
08.
The arguments regarding the first defense counsel lack merit because there
is no evidence the defense acquiesced in S.W.'s placement. Not only was
placing the child with a relative resource a central issue for the defense, but also
what the Division was statutorily obligated and court ordered to pursue.
Although defendant's initial counsel retained an expert who had a conflict of
interest, the trial judge gave the defense nearly six additional months to retain a
new expert. In turn, counsel retained a new expert who evaluated S.W.
Counsel's decision not to produce the defense expert at trial constituted a
strategic decision and was not ineffective assistance of counsel. Initially, we
A-2073-24 25 note defendant has not provided us with the report on appeal. See B.R., 192 N.J.
at 311 (noting if a party claims ineffective assistance of counsel resulting from
a failure to produce an expert or lay witness, then that party must supply a
certification from any such witness detailing "the substance of the omitted
evidence along with arguments regarding its relevance"). Regardless, not only
did R.S. mediate and withdraw her non-dissolution custody application, but the
overwhelming evidence in the record also shows even with the benefit of the
defense expert's opinion the outcome would not be different.
Affirmed.
A-2073-24 26