Dcpp v. J.S. and A.S., in the Matter of the Guardianship of W.S. and P.S.

• Court: New Jersey Superior Court Appellate Division
• Decided: February 10, 2025
• Docket: A-1837-23
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1837-23

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.S.,

Defendant,

and

A.S.,

Defendant-Appellant. _________________________

IN THE MATTER OF THE GUARDIANSHIP OF W.S. and P.S., minors. _________________________

Submitted January 23, 2025 – Decided February 10, 2025

Before Judges Rose and DeAlmeida. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FG-10-0102-23.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Steven Edward Miklosey, Designated Counsel, on the brief).

Matthew J. Platkin, Attorney General, attorney for respondent (Donna Arons, Assistant Attorney General, of counsel; Nicholas Dolinsky, Deputy Attorney General, on the brief).

Jennifer N. Sellitti, Public Defender, Law Guardian, attorney for minors (Meredith Alexis Pollock, Deputy Public Defender, of counsel; David B. Valentin, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendant A.S. (Adam) appeals from a January 31, 2024 Family Part

judgment terminating his parental rights to his biological sons, W.S. (William),

born in 2018, and P.S. (Peter), born in 2020.1 The same judgment terminated

the parental rights of the children's biological mother, defendant J.S. (Jessica),

who did not attend the guardianship proceedings, has been missing to the

1 Consistent with the parties' briefs, we use initials to protect the confidentiality of these proceedings, R. 1:38-3(d)(12), and pseudonyms for ease of reference.

A-1837-23 2 Division of Child Protection and Permanency since June 2022, and is not a party

to this appeal.2

During the three-day guardianship trial, the Division presented the

testimony of two permanency caseworkers, an adoption worker, and psychology

expert, Robert Kanen, Psy.D. The boys' resource parent, L.T. (Lana), testified

on behalf of William and Peter. Defendant neither testified nor presented any

evidence on his behalf.

Following closing arguments, Judge Bernadette DeCastro reserved

decision and shortly thereafter issued a twenty-six-page written decision,

finding the Division established, by clear and convincing evidence, all four

prongs of the best interests standard under N.J.S.A. 30:4C-15.1(a)(1) to (4).

Accordingly, William and Peter were freed for adoption by Lana, with whom

the boys have resided since January 2023. 3

2 Jessica has four other biological children: A.M. and V.M., who are over the age of eighteen and were last known to reside with their biological father, J.M; and D.R. and B.R., who are minors and were last known to be in the custody of their biological father, M.R. These children and their fathers are not parties to this appeal. 3 After Adam filed his appeal, we granted his motion to settle the record regarding the admission of certain trial evidence. On remand, the judge resolved the outstanding evidentiary issues and issued a June 24, 2024 memorializing order, which is not challenged on this appeal.

A-1837-23 3 Before us, Adam's contentions are limited to the second part of the

statute's third prong, whether the Division satisfied its burden to explore

alternatives to termination, and fourth prong, whether termination of parental

rights "will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(3) and (4).

The children's law guardian joins the Division, urging us to uphold the

judgment.

Based on our review of the trial record and prevailing legal standards, we

are satisfied the evidence in favor of the guardianship petition overwhelmingly

supports the judge's decision to terminate Adam's parental rights, see N.J. Div.

of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007), and there is no merit

to the claims Adam raises on appeal. We affirm substantially for the reasons

stated by Judge DeCastro in her cogent written opinion.

Accordingly, we need not detail the complete history of the Division's

involvement in this matter. Instead, we incorporate by reference Judge

DeCastro's thorough factual findings and legal conclusions, highlighting the

pertinent facts and events from the evidence adduced at trial.

The Division first became involved with the family in December 2018,

following allegations of domestic violence. William was three months old at

the time of the referral; Peter was not yet born. The case was closed at intake.

A-1837-23 4 A second referral in February 2019, spurred the Division's reinvolvement

based on allegations that Jessica appeared intoxicated in court while seeking a

restraining order against Adam's former romantic partner. The Division was

granted care and supervision of William. Because defendants failed to comply

with services, Jessica's mother was granted physical custody of William. In

September 2019, based on defendants' progress and compliance with the

Division's services, William was reunited with his parents. In January 2020, the

litigation was dismissed and the Division closed its file.

By March 2021, however, the Division was reinvolved with the family

following a referral indicating: defendants were intoxicated while caring for

William, then age two, and Peter, then age one; Jessica physically assaulted

Adam; and the home was unkempt. The Division investigated and the case

remained open for monitoring.

Over the course of the next several months, the Division received multiple

referrals reporting domestic violence and substance abuse. In November 2021,

the Division was granted care and supervision of the children. The Division

provided various services. Jessica obtained a final restraining order (FRO)

against Adam. Eventually, on April 4, 2022, the Division closed its case as

Jessica was complying with services and she and the children resided with her

A-1837-23 5 friend. The dismissal order permitted Adam to seek modification of the FRO to

resume parenting time with the boys.

The precipitating event that led to the children's removal occurred on

April 6, 2022, two days after dismissal of the litigation, when Jessica was

hospitalized after a manic public incident. At the hospital, Jessica tested

positive for benzodiazepine and methamphetamines. Pursuant to the Division's

safety protection plan, the children lived with Jessica's niece, C.M. (Cara) in

Pennsylvania. The following month, the Division was awarded care and custody

of the children.

Adam failed to maintain regular contact with the Division. When he

finally met with the caseworker in late August 2022, Adam stated he wished to

visit the boys, but acknowledged he could not care for the children because he

did not have stable housing or a job. Again, the caseworker advised Adam he

could not visit the children absent modification of the FRO.

During the months that followed, Adam disclosed his schizophrenia

illness to the Division, explaining he heard voices and hallucinated. The

Division offered Adam various services. Although Adam had a housing

voucher, he lived in a hotel. Neither the services offered nor Adam's

noncompliance is at issue on this appeal.

A-1837-23 6 Meanwhile, by November 2022, Cara informed the Division she could no

longer care for the children. The Division placed the children with Cara's

mother, D.M. (Dara), in December 2022, but Dara soon asked for their removal.

The following month, William and Peter were placed with Lana, who babysat

the children when they resided with Cara.

At trial, a caseworker and the adoption worker testified they separately

spoke with Lana about permanency options for the children, including kinship

legal guardianship (KLG) and adoption. Both times, Lana expressed her

preference for adoption. Lana reiterated her commitment to adoption during her

trial testimony. Noting the children were bonded to her and her family, Lana

stated "[she] would like to give them a forever home."

Dr. Kanen testified about his bonding assessments of the children with

Adam, and with Lana. Dr. Kanen noted the interactions between Adam and the

children were positive, but concluded the boys had an insecure attachment to

their father. Noting Adam's visits with the boys were inconsistent, Dr. Kanen

found they could not rely on him. Dr. Kanen opined Adam was unable to

provide the children with a safe and secure home.

Conversely, Dr. Kanen concluded the bond between the boys and Lana

was secure. Noting one of the children called Lana, "mommy," Dr. Kanen

A-1837-23 7 concluded the boys "perceive her as a parental figure." Because Lana is

"consistent, predictable, reliable," and "recognizes their special needs," Dr.

Kanen opined she is able to provide the boys stability and security. According

to Dr. Kanen, the boys would not "suffer severe and enduring harm if [Adam]'s

parental rights [we]re terminated."

We are guided by well-established principles. Termination of parental

rights requires the Division satisfy the following four prongs of the "best

interests of the child" test by clear and convincing evidence:

(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

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1(a)(1) to (4).]

A-1837-23 8 The four prongs "are not discrete and separate," but rather "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).

In his first two overlapping arguments, Adam challenges the adequacy of

the judge's findings on the second part of the third prong, "the court has

considered alternatives to termination of parental rights." N.J.S.A. 30:4C-

15.1(a)(3). For the first time on appeal, Adam argues the judge gave short shrift

to the Division's investigation of his relative placement options and its failure to

introduce into evidence the "rule out" letters to his stepfather and brother. Adam

further contends the judge erroneously deferred to Lana's preference to adopt

rather than pursue KLG.

Because Adam failed to raise an objection to the adequacy of the

Division's proofs at trial concerning the exploration of his relatives without

introducing the rule out letters, we review his belated contentions under the plain

error standard. R. 2:10-2. He therefore bears the burden of demonstrating the

alleged error was "of such a nature as to have been clearly capable of producing

an unjust result," and therefore, should not be disregarded by this court . Ibid.

Had an objection been made, the Division could have addressed the

omission at trial. See N.J.S.A. 30:4C-12.1(b)(1) (requiring the Division to

A-1837-23 9 "inform the relative or person in writing of . . . the reasons for [its]

determination"). Regardless, however, the adoption worker testified during his

"tenure of the case [Adam] did not want the Division to relook at any of his

family members, specifically [his stepfather and brother]." Moreover, the record

reveals Adam told behavioral healthcare workers his stepfather abused him as a

child and he did not have a relationship with his brothers, who had substance

abuse issues.

Thus, even if the Division failed to issue a rule out letter, that failure

would not warrant jeopardizing the safety of the children or their entitlement to

permanency without further delay. See N.J. Div. of Youth & Fam. Servs. v.

K.L.W., 419 N.J. Super. 568, 581 (App. Div. 2011) ("Delay of permanency or

reversal of termination based on the Division's noncompliance with its statutory

obligations is warranted only when it is in the best interests of the child."). We

are satisfied any error was not "of such a nature as to have been clearly capable

of producing an unjust result." R. 2:10-2.

Nor are we persuaded Judge DeCastro failed to consider KLG as an

alternative to termination of Adam's parental rights. Notably, at the

guardianship trial, Adam did not propose KLG. He sought dismissal of the

guardianship complaint arguing the Division failed to satisfy all four prongs of

A-1837-23 10 the best interests standard. Defendant now argues the judge's decision violated

the legislative mandate favoring KLG. We disagree.

Effective July 2021, the Legislature amended the kinship care statutory

framework by enacting L. 2021, c. 154. Recognizing the importance of

supporting kinship care and the benefits of retaining the parent-child

relationship, the amendments relaxed the qualification requirements for KLG.

However, the amendments only revised the second prong of N.J.S.A. 30:4C-

15.1(a)(2) by eliminating language that permitted the court to consider the harm

separating the child from their resource family parent would cause to the child.

Prongs three and four were not altered by the 2021 amendments. See N.J. Div.

of Child Prot. & Permanency v. D.C.A., 256 N.J. 4, 28 (2023) (holding the 2021

amendments do not bar evidence of a child's bond to a current placement under

the fourth prong).

Accordingly, there is no statutory bar prohibiting the court from granting

KLG instead of adoption when the caregiver prefers adoption and the Division

otherwise proves termination of parental rights is in the child's best interests.

The record supports Judge DeCastro's finding that Lana was informed KLG was

an option and elected to adopt William and Peter in view of her concerns for the

children's stability. We discern no basis to disturb that decision.

A-1837-23 11 In his final point, Adam argues the trial judge afforded improper weight

to Dr. Kanen's conclusion the children would not suffer enduring harm if his

parental rights were terminated. Asserting Dr. Kanen overlooked the visitation

reports, Adam claims the children clearly were attached to him. Adam's

contentions lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E). We simply note even if Dr. Kanen did not consider the

visitation reports, Judge DeCastro did so, noting the children "recognized and

seemed to enjoy spending time" with Adam, but ultimately crediting Dr. Kanen's

opinion that their attachment was "insecure."

We conclude Judge DeCastro's factual findings are fully supported by the

trial record and her legal conclusions are unassailable, warranting our deference.

N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014). The judge's

opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a), and accords

with K.H.O., 161 N.J. 337, and its progeny.

Affirmed.

A-1837-23 12