Dcpp v. P.A.A. and R.S., in the Matter of the Guardianship of F.A.A.
This text of Dcpp v. P.A.A. and R.S., in the Matter of the Guardianship of F.A.A. (Dcpp v. P.A.A. and R.S., in the Matter of the Guardianship of F.A.A.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3620-23 A-3621-23
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANACY,
Plaintiff-Respondent,
v.
P.A.A. and R.S.,
Defendants-Appellants. __________________________
IN THE MATTER OF THE GUARDIANSHIP OF F.A.A., a minor. __________________________
Submitted March 18, 2025 – Decided May 19, 2025
Before Judges Gooden Brown and Smith.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0027-24. Jennifer N. Sellitti, Public Defender, attorney for appellant P.A.A. in A-3620-23 (Bruce P. Lee, Designated Counsel, on the briefs).
Jennifer N. Sellitti, Public Defender, attorney for appellant R.S. in A-3621-23 (Louis W. Skinner, Designated Counsel, on the briefs).
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 minor F.A.A. (Meredith Alexis Pollock, Deputy Public Defender, of counsel; David B. Valentin, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM
In these consolidated appeals, defendants P.A.A.1 and R.S. appeal from
the June 28, 2024 judgment of guardianship terminating their parental rights to
their daughter, F.A.A., born November 2020. Shortly after the child's birth, the
Division of Child Protection and Permanency (Division) removed F.A.A. from
P.A.A.'s custody due to her unaddressed mental health issues and her
noncompliance with treatment. P.A.A. was diagnosed with schizoaffective and
bipolar disorders, has been hospitalized multiple times, and is prescribed a
1 Pursuant to Rule 1:38-3(d)(12), we use initials or pseudonyms to protect the confidentiality of the participants in these proceedings. A-3620-23 2 variety of medications. P.A.A. has a long history with the Division and has two
other children who are no longer in her care. R.S. was incarcerated shortly after
F.A.A.'s birth, has a history of alcoholism, and was inconsistent with services.
F.A.A. was placed with E.J., a non-related resource parent, upon removal.
After residing in an out-of-home placement with E.J. for over three years while
the Division offered defendants services to facilitate reunification, a four-day
guardianship trial and best interests hearing were conducted in June 2024,
ending on June 28, 2024, with the termination of defendants' parental rights.
On appeal, P.A.A. challenges the judge's findings on prongs one, two, and
three of the best interests standard codified in N.J.S.A. 30:4C-15.1(a), arguing
the judge erred in concluding that mental illness was a basis for terminating
parental rights and a bar to kinship legal guardianship (KLG). P.A.A. also raises
various evidentiary issues and faults the judge for failing to sua sponte sequester
a Division witness. R.S. challenges the judge's findings on all four prongs of
the best interests standard, arguing his behavior never caused F.A.A. harm; he
was willing and able to remediate any alleged harm; the Division failed to
provide him with needed services, including finding stable housing ; the judge
disregarded the statutory mandate for KLG over adoption to maintain familial
connection; and the judge conducted a "better off" analysis, which is not the
A-3620-23 3 standard for the fourth prong. He seeks a permanency plan of KLG with
placement with his relatives, his second cousin D.H. and D.H.'s wife, C.M.
The Division asserts the judge's decision is supported by overwhelming
evidence in the record and should be affirmed. The Law Guardian supports
termination on appeal. Having reviewed the extensive record, the parties'
arguments, and the applicable legal principles, we affirm.
I.
By way of background, N.J.S.A. 30:4C-15.1(a), as revised in 2021,
requires the Division to petition for termination of parental rights on the grounds
of the "best interests of the child" if the following standards are met:
(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.
A-3620-23 4 The Division "bears the burden of proving each of those prongs by clear
and convincing evidence." N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J.
596, 606 (2007). The four criteria "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." N.J. Div. of Youth & Fam. Servs. v. I.S., 202
N.J. 145, 166 (2010) (quoting N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J.
494, 506 (2004)). "The considerations involved in determinations of parental
fitness are 'extremely fact sensitive' and require particularized evidence that
address the specific circumstances in the given case." In re Guardianship of
K.H.O., 161 N.J. 337, 348 (1999) (quoting In re Adoption of Child. by L.A.S.,
134 N.J. 127, 139 (1993)).
II.
Turning to the specific circumstances in this case, on September 11, 2023,
the Division filed a verified complaint to terminate defendants' parental rights
and obtain guardianship of F.A.A., followed by adoption. The Division first
became involved with P.A.A. in 2001 when it provided services, including
psychiatric and psychological evaluations and treatment, for her substance abuse
and mental health problems. P.A.A. had a lengthy history of hospitalizations
for psychiatric issues and noncompliance with prescribed psychotropic
A-3620-23 5 medications. The Division's involvement led to the eventual removal of P.A.A.'s
other two children, born in 2001 and 2012.
A. 2020 Removal of F.A.A.
By June 2020, P.A.A. was suffering from another psychiatric episode
where she insisted that she was the Attorney General for the State of New Jersey.
She was pregnant with F.A.A. and not taking her prescribed medications. On
November 2, 2020, the day of F.A.A.'s birth, P.A.A. tested positive for
marijuana. She left the hospital the following day against medical advice. The
Division removed F.A.A. from P.A.A.'s care due to concerns about P.A.A.'s
mental health. T.A., P.A.A.'s mother, was ruled out as a placement option after
she informed the Division she was unable to care for F.A.A. because she resided
in a senior home and was caring for her own parent. As a result, F.A.A. was
Free access — add to your briefcase to read the full text and ask questions with AI
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-3620-23 A-3621-23
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANACY,
Plaintiff-Respondent,
v.
P.A.A. and R.S.,
Defendants-Appellants. __________________________
IN THE MATTER OF THE GUARDIANSHIP OF F.A.A., a minor. __________________________
Submitted March 18, 2025 – Decided May 19, 2025
Before Judges Gooden Brown and Smith.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0027-24. Jennifer N. Sellitti, Public Defender, attorney for appellant P.A.A. in A-3620-23 (Bruce P. Lee, Designated Counsel, on the briefs).
Jennifer N. Sellitti, Public Defender, attorney for appellant R.S. in A-3621-23 (Louis W. Skinner, Designated Counsel, on the briefs).
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 minor F.A.A. (Meredith Alexis Pollock, Deputy Public Defender, of counsel; David B. Valentin, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM
In these consolidated appeals, defendants P.A.A.1 and R.S. appeal from
the June 28, 2024 judgment of guardianship terminating their parental rights to
their daughter, F.A.A., born November 2020. Shortly after the child's birth, the
Division of Child Protection and Permanency (Division) removed F.A.A. from
P.A.A.'s custody due to her unaddressed mental health issues and her
noncompliance with treatment. P.A.A. was diagnosed with schizoaffective and
bipolar disorders, has been hospitalized multiple times, and is prescribed a
1 Pursuant to Rule 1:38-3(d)(12), we use initials or pseudonyms to protect the confidentiality of the participants in these proceedings. A-3620-23 2 variety of medications. P.A.A. has a long history with the Division and has two
other children who are no longer in her care. R.S. was incarcerated shortly after
F.A.A.'s birth, has a history of alcoholism, and was inconsistent with services.
F.A.A. was placed with E.J., a non-related resource parent, upon removal.
After residing in an out-of-home placement with E.J. for over three years while
the Division offered defendants services to facilitate reunification, a four-day
guardianship trial and best interests hearing were conducted in June 2024,
ending on June 28, 2024, with the termination of defendants' parental rights.
On appeal, P.A.A. challenges the judge's findings on prongs one, two, and
three of the best interests standard codified in N.J.S.A. 30:4C-15.1(a), arguing
the judge erred in concluding that mental illness was a basis for terminating
parental rights and a bar to kinship legal guardianship (KLG). P.A.A. also raises
various evidentiary issues and faults the judge for failing to sua sponte sequester
a Division witness. R.S. challenges the judge's findings on all four prongs of
the best interests standard, arguing his behavior never caused F.A.A. harm; he
was willing and able to remediate any alleged harm; the Division failed to
provide him with needed services, including finding stable housing ; the judge
disregarded the statutory mandate for KLG over adoption to maintain familial
connection; and the judge conducted a "better off" analysis, which is not the
A-3620-23 3 standard for the fourth prong. He seeks a permanency plan of KLG with
placement with his relatives, his second cousin D.H. and D.H.'s wife, C.M.
The Division asserts the judge's decision is supported by overwhelming
evidence in the record and should be affirmed. The Law Guardian supports
termination on appeal. Having reviewed the extensive record, the parties'
arguments, and the applicable legal principles, we affirm.
I.
By way of background, N.J.S.A. 30:4C-15.1(a), as revised in 2021,
requires the Division to petition for termination of parental rights on the grounds
of the "best interests of the child" if the following standards are met:
(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.
A-3620-23 4 The Division "bears the burden of proving each of those prongs by clear
and convincing evidence." N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J.
596, 606 (2007). The four criteria "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." N.J. Div. of Youth & Fam. Servs. v. I.S., 202
N.J. 145, 166 (2010) (quoting N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J.
494, 506 (2004)). "The considerations involved in determinations of parental
fitness are 'extremely fact sensitive' and require particularized evidence that
address the specific circumstances in the given case." In re Guardianship of
K.H.O., 161 N.J. 337, 348 (1999) (quoting In re Adoption of Child. by L.A.S.,
134 N.J. 127, 139 (1993)).
II.
Turning to the specific circumstances in this case, on September 11, 2023,
the Division filed a verified complaint to terminate defendants' parental rights
and obtain guardianship of F.A.A., followed by adoption. The Division first
became involved with P.A.A. in 2001 when it provided services, including
psychiatric and psychological evaluations and treatment, for her substance abuse
and mental health problems. P.A.A. had a lengthy history of hospitalizations
for psychiatric issues and noncompliance with prescribed psychotropic
A-3620-23 5 medications. The Division's involvement led to the eventual removal of P.A.A.'s
other two children, born in 2001 and 2012.
A. 2020 Removal of F.A.A.
By June 2020, P.A.A. was suffering from another psychiatric episode
where she insisted that she was the Attorney General for the State of New Jersey.
She was pregnant with F.A.A. and not taking her prescribed medications. On
November 2, 2020, the day of F.A.A.'s birth, P.A.A. tested positive for
marijuana. She left the hospital the following day against medical advice. The
Division removed F.A.A. from P.A.A.'s care due to concerns about P.A.A.'s
mental health. T.A., P.A.A.'s mother, was ruled out as a placement option after
she informed the Division she was unable to care for F.A.A. because she resided
in a senior home and was caring for her own parent. As a result, F.A.A. was
placed with a non-relative resource parent, E.J., with whom she resides to this
day.
After the Division obtained custody of F.A.A., it arranged for P.A.A.'s
treatment at a partial inpatient program, which P.A.A. declined. The Division
also provided weekly supervised visits with F.A.A. During these visits, P.A.A.
exhibited unusual behaviors, including arriving to the visit with her belongings
in a cart, talking to herself, pacing the floor, and refusing to hold, engage, or
A-3620-23 6 speak with F.A.A. P.A.A. also acted aggressively towards Derrick McKie, the
Division's case manager, as a result of which McKie was unable to visit her
home alone. P.A.A. was again hospitalized at a psychiatric hospital in
December 2020 but refused to attend post-discharge services and telehealth
appointments after discharge.
B. 2021
Throughout January 2021, P.A.A. continued to display signs of mental
illness, was noncompliant with medications, and declined to participate in her
telehealth therapy appointments due to her fear that her phone had been
compromised. She also missed two weekly visits with F.A.A. During a
supervised visit on February 25, 2021, McKie observed P.A.A. place F.A.A.
face down on a changing mat as the child cried. P.A.A. then shoved F.A.A.'s
head into the mat when F.A.A. moved her head around. McKie removed the
child and promptly ended the visit. He was uncertain if P.A.A. had tried to
suffocate F.A.A. P.A.A. had no recollection of the incident and later denied that
she would engage in such behavior.
On February 23, 2021, Alison Strasser Winston, Ph.D., performed a
psychological evaluation of P.A.A. Winston explained that P.A.A. had a loose
grasp on reality, failed to comprehend that F.A.A. was her child, and lacked the
A-3620-23 7 knowledge and desire to care for a child. Winston diagnosed P.A.A. with
schizoaffective disorder, bipolar type. According to Winston, the disorder
would negatively affect P.A.A.'s ability to parent. Winston recommended that
P.A.A. engage in therapeutic visitation, attend a partial hospitalization program,
participate in medication monitoring, complete parenting skills classes, and
attend a substance abuse evaluation.
Samiris Sostre, M.D., subsequently performed a psychiatric evaluation of
P.A.A. and confirmed Winston's diagnosis that she suffered from
schizoaffective disorder, bipolar type. Sostre noted that P.A.A. had a limited
understanding of her mental disorder and became symptomatic even when she
took her medications.
P.A.A. started her recommended psychiatric and therapeutic services at
the Northwest Essex Community Healthcare Network (Northwest) in April
2021. There, she also received medication to treat bipolar disorder. However,
Northwest determined that she needed a higher level of care and referred her to
Mt. Carmel Guild. By October 2021, P.A.A. began therapy at Mt. Carmel Guild.
However, she only attended services sporadically and did not consistently take
her medications. Meanwhile, under the supervision of Care Plus, a service
provider, P.A.A. consistently attended therapeutic visitation with F.A.A.
A-3620-23 8 As for R.S., after the Division contacted him about F.A.A.'s removal, he
delayed meeting with Division staff. He was later incarcerated in Essex County
supposedly for violating a restraining order obtained by P.A.A. against him.
R.S. declined visitation with F.A.A. while he was incarcerated and requested a
paternity test. The results confirmed that he was F.A.A.'s biological father. R.S.
offered his aunt, W.R., as a possible placement for F.A.A. However, W.R. was
ruled out by the Division and she did not appeal the decision.
After he was released from prison, R.S. started an alcohol abuse therapy
program through Greater Essex Counseling Services (Greater Essex). However,
in June 2021, R.S. was terminated from the program for failure to adhere to
attendance policies on at least eight days. When the Division attempted to
schedule alcohol abuse counseling with a different provider, R.S. rejected the
Division's efforts and stated he would obtain his own treatment. By September
2021, R.S. lacked stable housing, moved from one relative's home to another,
and worked infrequently. Meanwhile, the Division provided R.S. visitation with
F.A.A. from March 2021 until December 2021.
C. 2022
In 2022, P.A.A.'s attendance at Mt. Carmel Guild was inconsistent and
she was transported to a local hospital for screening when she appeared
A-3620-23 9 disoriented on at least three occasions. Although Mt. Carmel Guild
recommended attendance at their partial care program five days per week,
P.A.A. only agreed to attend twice per week. When she consistently attended
her therapy sessions, Mt. Carmel Guild reported that there was improvement in
her behavior. P.A.A. also attended her therapeutic visitation sessions with
F.A.A. throughout 2022.
In an updated psychological evaluation conducted around the end of 2022,
Winston opined that although P.A.A. showed moderate improvement, she
struggled with "serious psychiatric issues" that "she [was] not consistently able
to manage" and that "pose[d] a high risk of harm to her children." According to
Winston, even if P.A.A. was compliant with her mental health services, she
would still be unable to remediate her mental health issues to be capable of
parenting F.A.A. in the foreseeable future.
As for R.S., in the early part of 2022, he still failed to attend any substance
abuse treatment despite being court ordered to do so. By June 24, 2022, R.S.
attended his intake appointment for substance abuse treatment at Appropriate
Place. During intake, he tested positive for alcohol and marijuana , and tested
positive for alcohol and marijuana on several occasions throughout June, July
and August 2022.
A-3620-23 10 By August 2022, R.S. was still unemployed and lacked stable housing.
He failed to contact two housing assistance agencies to which the Division had
referred him. In November 2022, Appropriate Place reported that R.S. had
missed several drug screenings, but had been compliant with individual therapy
in September, October, and November 2022. Later, R.S. stopped attending
therapy sessions because he did not want to participate in the drug screenings.
In contrast, during 2022, R.S. consistently attended therapeutic visitation with
F.A.A. and P.A.A., with whom he was still involved romantically.
In September 2022, Winston performed a psychological evaluation of
R.S.,2 who admitted drinking alcohol since he was nine years old to the present.
The evaluation revealed that R.S. was disinterested in and unmotivated to
engage in services to facilitate reunification, lacked empathy, reversed parent-
child roles, and had an elevated risk to engage in behaviors that would cause a
child harm. Winston determined that R.S. had unaddressed emotional issues
that would adversely impact his ability to parent F.A.A. Winston concluded that
R.S. was unable to provide F.A.A. with a safe and stable environment and should
not be reunified with F.A.A. for the foreseeable future. Winston recommended
2 At the time of the evaluation, R.S. was living with his older brother S.S., whom the Division had ruled out as a placement option because he had a cognitive impairment. A-3620-23 11 that R.S. participate in alcohol abuse treatment, therapy, psychiatric services,
psychoeducation, couple's counseling, and parenting skills classes .
D. 2023
In 2023, defendants' participation in services remained inconsistent and
sometimes nonexistent. Although P.A.A. consistently attended services
between January and mid-July 2023, from late July to October 2023, she
infrequently attended her partial care program and missed two injections of her
medication. She sometimes appeared disheveled, exhibited delusional thinking,
and had problems accomplishing basic daily living tasks. When Winston tried
to perform an updated psychological evaluation on July 20, 2023, P.A.A. refused
to engage with Winston, who commented that P.A.A. still lacked the ability to
recognize when she was experiencing a psychiatric episode in order to take
proper measures. P.A.A. ultimately re-engaged in medication monitoring and
her compliance with services improved by December 2023.
Similarly, between January and June 2023, P.A.A. consistently attended
therapeutic visitation with F.A.A. However, during their July 2023 visits,
P.A.A. became agitated, incoherent, confused, and paranoid. In August 2023,
P.A.A. informed Care Plus that she no longer wanted to attend visitation with
F.A.A. and skipped two visitation sessions. From September to December 2023,
A-3620-23 12 P.A.A. resumed attending therapeutic visitation with F.A.A. but missed several
visits or arrived late on numerous occasions.
As for R.S., by January 2023, he had stopped attending services at
Appropriate Place. Although he briefly resumed, he stopped again by August
2023. R.S. worked sporadically at various jobs in 2023 but still lacked stable
housing. He was referred to a program by the Division that offered classes,
employment training, and support but he failed to attend. In May 2023, Sostre
conducted a psychiatric evaluation of R.S. and diagnosed him with alcohol use
disorder. R.S. admitted to Sostre that he still drank alcohol because he did not
believe he had a problem and stated that he had stopped attending Appropriate
Place because he did not want to provide urine for screenings. Sostre
recommended that R.S. attend a substance abuse program and therapy, and
engage in services aimed at monitoring depression.
On November 16, 2023, McKie visited defendants, who were then living
together at an apartment. McKie found R.S. sleeping in the hallway of the
building, smelling of alcohol, and was unable to awaken R.S. R.S. later admitted
to McKie that he had lost consciousness from excessive drinking. Subsequently,
R.S. was re-admitted to Appropriate Place for alcohol abuse, but his urine
screenings showed that he continued to use alcohol in December 2023.
A-3620-23 13 Regarding visitation, R.S. attended therapeutic visitation with F.A.A. and
P.A.A. throughout 2023. However, he missed several visits, arrived late, or
ended the visit early on several dates. During a September 8, 2023 visit, R.S.
stated that his family intended to "snatch[]" F.A.A. and transport her across state
lines to prevent the Division from terminating parental rights, causing Care Plus
to transfer supervisions of the visits back to the Division. During an ensuing
investigation of the incident, R.S. claimed he was only joking.
By the end of 2023, the Division informed the court that the permanency
plan for F.A.A. had changed from reunification with defendants to adoption by
her resource mother, E.J.
E. 2024
Both defendants' compliance with services continued to decline in 2024.
Although P.A.A. complied with services in the early part of 2024, by May 2024,
she announced she would not be returning to Mt. Carmel Guild for services
because she felt there was nothing more she needed to learn. As a result, Mt.
Carmel Guild terminated P.A.A.'s services because she regularly failed to
comply with the program's requirements. Notwithstanding P.A.A.'s belief that
she no longer needed services, a March 2024 psychological evaluation revealed
that P.A.A. still exhibited symptoms of mental illness that would be exacerbated
A-3620-23 14 by parenting responsibilities. P.A.A. also announced in May 2024 that she no
longer wanted visitation with F.A.A.
As for R.S., by April 2024, he continued to live with P.A.A., abuse
alcohol, and sporadically attend services. He missed fifteen out of twenty-three
group therapy sessions at Appropriate Place and was at risk of being discharged
from the program because he had only submitted six urine specimens between
January and February, had one positive urine screen during the January and
February time period, and failed to submit any urine specimens in March and
April. When McKie again visited defendants' apartment in February 2024, R.S.
was asleep and smelled of alcohol. When R.S. awoke, he was incoherent and
acted aggressively toward McKie.
During a March 2024 psychological evaluation with Elizabeth Stilwell,
Psy.D., R.S. admitted to regularly drinking approximately seven and one-half
beers per day, but claimed he had decreased his alcohol consumption to only
three beers per day. He further admitted that his attendance at Appropriate Place
was sporadic but maintained that he could quit drinking if he wanted to do so.
Stilwell observed that R.S. did not have a plan for F.A.A.'s care, did not have
the ability to parent F.A.A. as a single father, and did not have the capacity to
co-parent with P.A.A. Stilwell opined that R.S.'s ability to change was poor.
A-3620-23 15 R.S.'s Appropriate Place clinician also indicated that R.S. failed to take his
substance abuse treatment seriously.
From late 2023 to early 2024, the Division explored D.H., R.S.'s second
cousin, and D.H.'s wife, C.M., as a potential placement for F.A.A. Although the
Division caseworker explained both KLG and adoption to the couple, they were
only interested in adoption. The couple met F.A.A. for the first time in January
or February 2024. 3 Subsequently, the Division arranged for visitation between
F.A.A. and the couple.
The Division caseworker had also explained to E.J. the differences
between adoption and KLG. E.J., who had been F.A.A.'s resource parent since
her removal a few days after she was born, consistently expressed her desire to
adopt F.A.A. and declined KLG. In February 2024, when the Division explained
that it was considering D.H. and C.M. as a potential placement for F.A.A., E.J.
remained committed to adoption. Later, E.J. expressed interest in both KLG and
adoption, explaining that she would consider KLG if it meant that F.A.A. could
remain in her care instead of being transitioned to D.H.'s and C.M.'s home.
3 D.H. may have only met R.S. once or twice as a child and C.M. had never met R.S. prior to the litigation. A-3620-23 16 In March 2024, Stilwell conducted bonding evaluations among F.A.A.,
P.A.A., and R.S. Stilwell also performed bonding evaluations between F.A.A.
and her resource mother E.J., as well as among F.A.A., D.H., and C.M. Stilwell
opined that F.A.A. was securely bonded to E.J. and although F.A.A. would
benefit from living with paternal relatives like D.H., the Division's removal of
F.A.A. from E.J. would negatively affect F.A.A.'s emotional and behavioral
well-being. However, Stilwell believed F.A.A. would not be severely and
enduringly harmed if D.H. could mitigate the harm.
On June 3, 2024, Ingrid Diaz, Ph.D., issued a report detailing her
psychological evaluation of P.A.A. as well as her bonding evaluations for
F.A.A. with P.A.A., E.J., D.H., and C.M. According to Diaz, although F.A.A.
demonstrated strong attachments to P.A.A., E.J., D.H., and C.M., Diaz found
F.A.A. was more securely attached to E.J., D.H., and C.M. Diaz believed that
removing F.A.A. from E.J. would negatively impact F.A.A.'s emotional and
social development and thus not be in her best interests. Although Diaz
encouraged KLG because it would give P.A.A. additional time to address her
mental illness and develop parenting strategies, Diaz opined that F.A.A. could
not be returned to P.A.A. in the near future due to safety concerns.
A-3620-23 17 III.
At the June 2024 guardianship trial, 4 McKie, Stilwell, and C.M. testified
for the Division. E.J. testified for the Law Guardian, and Diaz testified for
P.A.A. R.S. produced no witnesses. The Division also introduced voluminous
records that were admitted into evidence.
In addition to authenticating the Division's records, at trial, McKie
recounted the Division's involvement with the family and detailed the services
provided to help defendants correct the circumstances that led to F.A.A.'s
removal. McKie described defendants' checkered participation in services and
confirmed the various individuals who were considered for placement but ruled
out. McKie acknowledged that F.A.A. had been placed with E.J. since her
removal but complained that, although not documented, during visits to E.J.'s
home, the bedroom of E.J.'s two daughters was untidy and they owned a dog
that smelled badly.
According to McKie, the Division was not in favor of KLG if the court
decided to keep F.A.A. with E.J. because defendants had not resolved their
4 When the Division stated it was considering placing F.A.A. with D.H. and C.M., the Law Guardian requested a best interests hearing prior to any change in placement. The judge held the best interests hearing concurrently with the guardianship trial. A-3620-23 18 respective parenting deficiencies. Instead, McKie testified it was the Division's
plan to remove F.A.A. from E.J. and place her with D.H. and C.M. because of
the Division's policy of placing children with biological relatives,
notwithstanding the fact that C.M. was uncertain that she and D.H. would
maintain a relationship with R.S. should adoption occur.
C.M. testified that although her family was close, she had never met R.S.
until the litigation and D.H. had only met R.S. a couple of times. According to
C.M., she and D.H. met F.A.A. for the first time in January 2024, after which
they began supervised visits followed by weekend visits lasting through the time
of trial. During the visits, they never disciplined F.A.A. and took her on trips to
exciting places, including Legoland and the American Dream Mall. As a result
of these visits, C.M. credited herself with potty training F.A.A.
C.M. testified that she and D.H. lived in the same building as D.H.'s
mother and D.H.'s brother. They also had a thirteen-year-old son, who was on
the autism spectrum but did not have behavioral issues. C.M. and D.H. were
interested in adoption and did not want to enter into KLG even though the two
options had been explained to them. If they were allowed to adopt F.A.A., they
intended to change her last name and place her in grief counseling to help her
adjust to the transition to her new home. C.M. was open to allowing F.A.A. to
A-3620-23 19 have contact with E.J. and wanted F.A.A. to visit defendants, but she was not
willing to engage in a set visitation schedule.
E.J. testified that she had been a resource parent since 2014 and had ten
children, five of whom were adopted. E.J.'s two adopted daughters, ages seven
and eight, as well as her biological son lived at home with her and F.A.A. Her
children considered F.A.A. to be family. E.J. expressed her desire to adopt
F.A.A. as early as June 2021. She was aware of the KLG option, but had been
consistently interested in adoption and reiterated that desire as recently as one
month prior to the guardianship trial, despite being confused about filling out a
Division form stating her preference. E.J. testified that she was upset to learn
that the Division wanted to move F.A.A. to D.H.'s and C.M.'s home. Although
E.J. still wanted to adopt F.A.A., she would be willing to enter into a KLG
arrangement if it meant that F.A.A. could continue to reside with her.
Stilwell, who was qualified as an expert in psychology in relation to
parenting and bonding, recommended termination of parental rights. She opined
that neither parent could safely parent F.A.A. now or in the foreseeable future.
She stated that P.A.A.'s mental disorders were severe, chronic, and cyclical,
meaning that she had periods of stability and periods of decompensation even
A-3620-23 20 with compliance with services. In fact, Stilwell was aware of approximately ten
prior psychiatric hospitalizations that P.A.A. had experienced.
According to Stilwell, when P.A.A. experienced symptoms associated
with her schizoaffective disorder, she lacked insight into how to manage her
condition. Her psychotic symptoms included isolating, disorganized thinking,
aggressive behavior, and delusions. During these periods, P.A.A. would lose
touch with reality and the likelihood of P.A.A. engaging in aggressive or violent
behaviors increased, placing a child in P.A.A.'s care at high risk of harm.
Stilwell explained that although P.A.A. had been sporadically participating in
services for over ten years, she had not made significant progress.
As for R.S., Stilwell explained that his participation in services was
sporadic because he consistently refused to stop drinking alcohol and believed
that he could abstain without treatment if he wanted to. R.S.'s refusal to commit
to sobriety created an unacceptable risk of harm to F.A.A. because R.S. could
not independently care for her. Even if R.S. tried to co-parent with P.A.A.,
F.A.A. would not be safe because R.S. lacked an understanding of P.A.A.'s
limitations, needs, and treatment, and R.S. had no basic understanding of
parenting skills. According to Stilwell, the likelihood of R.S. changing his
behavior was poor.
A-3620-23 21 Regarding the bonding evaluations, Stilwell testified that although F.A.A.
shared a "positive" bond with defendants, the bond was not a secure attachment.
She opined that if their parental rights were terminated, F.A.A. might experience
some disruption but not significant or enduring harm that E.J. or even D.H. and
C.M. could not successfully mitigate. Stilwell confirmed that F.A.A.'s secure
attachment was to E.J. Stilwell observed that E.J. displayed a kind and attentive
demeanor to F.A.A., and E.J. was able to soothe and comfort F.A.A. In addition,
a bonding sibling group was present among F.A.A. and E.J.'s two daughters.
According to Stilwell, F.A.A. demonstrated that E.J. was her primary parent and
E.J.'s home was her primary home. Stilwell opined that if F.A.A.'s relationship
with E.J. were severed, she would experience trauma and enduring harm .
Stilwell recommended that F.A.A. be "freed for adoption so that she can
achieve permanency." However, Stilwell did not state a preference for F.A.A.'s
placement between E.J. or D.H. and C.M. She acknowledged that both E.J. as
well as D.H and C.M. wanted to adopt F.A.A. and explained that, in general, the
placement of a child with relatives has benefits. However, she cautioned that if
F.A.A. were to be transitioned out of E.J.'s home, F.A.A. would need behavioral
services, family therapy, parent coaching, and other support services to adjust.
On the other hand, if F.A.A.'s relationship with D.H. and C.M. were severed,
A-3620-23 22 F.A.A. would not experience any harm despite being comfortable and familiar
with them.
Stilwell disagreed with Diaz's opinion that P.A.A. and F.A.A. shared a
strong bond and disagreed that KLG rather than termination of parental rights
was a viable option for F.A.A. In Stilwell's opinion, neither defendant would
be able to correct the parenting deficiencies that caused F.A.A.'s removal for the
foreseeable future. As a result, Stilwell could not foresee a future where F.A.A.
would be safe with either defendant. Further, delaying F.A.A.'s adoption would
prevent her from achieving permanency.
Diaz, who was qualified as an expert in complex mental health issues and
trauma disorders, supported P.A.A.'s request for KLG rather than termination of
parental rights. In addition to opining that F.A.A. was securely attached to
P.A.A., Diaz opined that P.A.A. did not have any significant psychological
deficits at the time of her evaluation that would affect her ability to parent. In
fact, Diaz believed that P.A.A. was good at making decisions and had adequate
coping skills.
Diaz wavered on whether P.A.A. would be stable enough to parent F.A.A.
if given more time to work toward reunification given P.A.A.'s "[then-]current
decompensation." Instead, Diaz only recommended that P.A.A. be given more
A-3620-23 23 time to comply with services if another psychological evaluation indicated it
was "something she [could] pull together." Diaz acknowledged that F.A.A.'s
bond to E.J. was her strongest bond and that she considered E.J. to be her mother,
but Diaz also believed F.A.A. had "a bond" with D.H. and C.M. Although Diaz
recommended against removing F.A.A. from E.J.'s care because it would cause
long-term trauma and harm to F.A.A., such as depression, anxiety, and substance
abuse, she supported KLG with E.J. "with reservation and hesitation" to allow
P.A.A. time to achieve stability and reunify with F.A.A.
Following the trial, the judge issued a comprehensive written opinion,
concluding that the Division established, by clear and convincing evidence, all
four prongs of the best interests standard. The judge terminated defendants'
parental rights to F.A.A., awarded guardianship of F.A.A. to the Division for
the purpose of adoption, and determined it was in F.A.A.'s best interests to
remain with E.J. with the goal of adoption. In her decision, the judge recounted
each witness's testimony, assessed the credibility of each witness, and made
detailed factual findings consistent with those assessments. The judge recited
the procedural history of the case, provided a full analysis of the statutory
factors, and applied the governing legal principles.
A-3620-23 24 In her credibility assessments, the judge found Stilwell and E.J. credible.
Stilwell "answered questions clearly and thoughtfully" and E.J. "did not
embellish or exaggerate her testimony." Although the judge found Diaz
credible, she did not credit "several of her conclusions," finding them
"speculative" and "even hopeful, but without support in the record." In
particular, the judge rejected Diaz's conclusions that P.A.A. "would benefit from
more time" and that KLG "should be the plan."
As for C.M., although "she was not evasive" and "made appropriate eye
contact," the judge "found her overall testimony to be less than credible" because
"[s]ome of her testimony was inherently questionable" and she "was motivated
to testify in the most positive light to show the court she was the best placement
for [F.A.A.]." Although the judge found McKie "somewhat credible" in that
"[h]e had a command of the facts contained in the Division file" and "did not
guess or speculate,"
[his] demeanor led th[e] court to find he was biased towards [C.M. and D.H.] in a manner beyond his professional capacity. He embellished when discussing the condition of [E.J.'s] home and [F.A.A.'s] appearance even though for years there were no issues with [E.J.'s] home or her care of [F.A.A.] and it was not until the relatives surfaced that his views changed. . . . Further, his manner in responding to the Law Guardian and [P.A.A.'s] counsel's questions was quite different
A-3620-23 25 than when responding to the Deputy Attorney General. He was short and almost sarcastic at times.
The judge went on to address each prong in turn. As to prong one, the
judge determined that as a result of "[P.A.A.'s] mental health and [R.S.'s] failure
to remediate his alcohol abuse," F.A.A.'s "health, safety and wellbeing have
been endangered and will continue to be endangered if the relationship [s] with
[defendants] were to remain intact." The judge explained:
[P.A.A.] has suffered with significant mental health issues for nearly two decades. To her credit she has spent considerable effort attending and participating in various programs and medication monitoring, even during the COVID-19 pandemic. She has regularly risen to the challenges of her mental health diagnoses. Unfortunately, as noted by . . . Stilwell, [P.A.A.'s] "mental health is cyclical meaning that she has periods of relative stability and periods of decompensation." Even though [P.A.A.] receives injections, she continues to have periodic episodes of decompensation. . . . Stilwell opined that the "ordinary demands of parenting are likely to be overwhelming to [P.A.A.] and would place her at risk of future decompensation[,] which in turn would place any child in her care at risk." This cycle was apparent even at the time of trial as [P.A.A.] had been recently discharged from Mount Carmel Guild, [was] not participating in any treatment or medication monitoring, and was visibly decompensating. Even being aware of her triggers is not enough to maintain the necessary stability. As . . . Stilwell testified, [P.A.A.] is unaware it is happening and does not reach out for help which puts any child in her care at risk. To be clear, [P.A.A.] is not at fault for her mental illness and its ongoing effects on her and her
A-3620-23 26 family. . . . But simply because a parent is "morally blameless" is not enough to find in their favor. N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001). If a mental illness affects a parent's ability to carry out the normal and expected functions of parenting, that can be the basis for a termination of parental rights.
Conversely, [R.S.'s] persistent and conscious alcohol abuse has put [F.A.A.'s] well-being and safety at risk. His refusal to appreciate the consequences of his drinking despite being aware of his propensity for alcoholism and his abject failure to meaningfully participate in substance abuse treatment rendered him utterly incapable of being that co-parent that [P.A.A.] could have had to have [F.A.A.] returned to her custody. . . . [R.S.] sporadically attended substance abuse treatment and notably refused to provide urine screens. On May 6, 2024, he ceased attending any substance abuse treatment despite the pending trial. In fairness, however, he was relatively consistent with visits with [F.A.A.] throughout the time she has been in placement.
[(Citations omitted) (citation reformatted).]
For the same reasons, the judge found the Division established prong two.
The judge added that "despite [P.A.A.'s] desire, [she] is unable to become fit
within time to assume the parental role necessary to meet the child's needs." On
the other hand, the judge stated that R.S. "has no desire to avail himself of the
assistance provided to help reunify him with [F.A.A.] or be a co-parent for
[P.A.A.]" and "has continued to delay permanency for [F.A.A.]"
A-3620-23 27 As to prong three, the judge found
[t]here [was] little dispute that the Division ensured that [defendants] were provided with services in an attempt to further the goal of reunification. [P.A.A.] was provided with mental health treatment, transportation, and visitation. [R.S.] was provided with substance abuse treatment, transportation, and visitation. They were both referred for multiple psychological and psychiatric evaluations as well as bonding evaluations.
Likewise, according to the judge, "[t]he Division explored alternatives to
the termination of . . . parental rights including assessing the offered relative
placement options." However, the judge concluded "it [was] in the best interest
of [F.A.A.] to remain with [E.J.] under a plan of adoption," rather than a KLG
relationship with E.J. or adoption by D.H. and C.M. In support, the judge
explained that while "KLG [was] an equally available permanency plan," it was
"not the preferred plan." The judge acknowledged that "[t]he preference
language in the [2021] amendment to the kinship statute 'was clearly intended
to reflect a preference for viable kinship guardians and fit parents over unrelated
foster caretakers.'" (quoting N.J. Div. of Child Prot. and Permanency v. D.C.A.,
474 N.J. Super. 11, 27 (App. Div. 2022), aff'd, 256 N.J. 4 (2023)).
However, the judge found that
[n]o expert evidence was presented that [F.A.A.] should be placed with [D.H. and C.M.], to the contrary, the one expert who expressed an opinion on placement, . . .
A-3620-23 28 Diaz, testified that it would be in [F.A.A.'s] best interest to stay with [E.J.] . . . Stilwell specifically stated that she did not offer an opinion on placement. Both experts opined that [E.J.] and [F.A.A.] have a strong and secure attachment. Neither expert was committed to that opinion with regard to [D.H. and C.M.] Both experts agreed that there would be a reaction or perhaps a harm if she was removed from [E.J.], and both experts agreed that there would be no harm if [F.A.A.] ceased her visits with [D.H. and C.M.]
Lastly, as to prong four, the judge concluded that "terminating the parental
rights of [defendants] will not do more harm than good." In support, the judge
explained:
Stilwell opined that [F.A.A.'s] attachment to [defendants] is a positive relationship, but not a healthy and secure bond. Conversely, her attachment to [E.J.] is a healthy and secure one. She testified that if [defendants'] parental rights were terminated, [F.A.A.] might experience some disruption because she has been having visits with them, however she would not experience any significant or enduring harm. She further testified that [E.J.] would be able to successfully mitigate any harm. . . . Diaz testified that [F.A.A.'s] strongest bond is with [E.J.]
The judge entered a memorializing order and these appeals followed.
IV.
Our scope of review on appeals from orders terminating parental rights is
limited. N.J. Div. of Child Prot. & Permanency v. T.D., 454 N.J. Super. 353,
379 (App. Div. 2018). In such cases, we will generally uphold the trial court's
A-3620-23 29 factual findings, so long as 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) (citing N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104
(2008)).
Indeed, we give substantial deference to Family Part judges' special
expertise and opportunity to observe the witnesses firsthand and evaluate their
credibility, id. at 552-53, "and to gain a 'feel of the case' over time, thus
supporting a level of factual familiarity that cannot be duplicated by an appellate
court reviewing a written record," N.J. Div. of Youth & Fam. Servs. v. H.R.,
431 N.J. Super. 212, 220-21 (App. Div. 2013) (quoting E.P., 196 N.J. at 104).
"We also defer to the trial court's assessment of expert evaluations." Id. at 221.
Thus, a termination decision should only be reversed or altered on appeal if the
trial court's findings are "so wholly unsupportable as to result in a denial of
justice." P.P., 180 N.J. at 511 (quoting In re Guardianship of J.N.H., 172 N.J.
440, 472 (2002)).
Even where the parent alleges "error in the trial judge's evaluation of the
underlying facts and the implications to be drawn therefrom," deference must be
accorded unless the judge "went so wide of the mark that a mistake must have
been made." N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279
A-3620-23 30 (2007) (first quoting In re Guardianship of J.T., 269 N.J. Super. 172, 189 (App.
Div. 1993); and then quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc.,
233 N.J. Super. 65, 69 (App. Div. 1989)). However, "[a] trial court's
interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference." R.G., 217 N.J. at 552-53
(quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995)).
Guided by these standards, we are satisfied the judge's factual findings are
amply supported by credible evidence in the record, and her legal conclusions
are sound. The judge made copious findings as to each prong of N.J.S.A. 30:4C-
15.1(a), and concluded that the Division met, by clear and convincing evidence,
the legal requirements for a judgment of guardianship. The judge's opinion
tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a) and comports with
applicable case law. See, e.g., N.J. Div. of Youth & Fam. Servs. v. F.M., 211
N.J. 420, 447-54 (2012); E.P., 196 N.J. at 102-11; K.H.O., 161 N.J. at 347-63;
In re Guardianship of DMH, 161 N.J. 365, 375-94 (1999); N.J. Div. of Youth &
Fam. Servs. v. A.W., 103 N.J. 591, 602-11 (1986).
Moreover, as public policy increasingly focuses on a child's need for
permanency, it has resulted in the placement of "limits on the time for a birth
A-3620-23 31 parent to correct conditions in anticipation of reuniting with the child." N.J.
Div. of Youth & Fam. Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004);
see also A.G., 344 N.J. Super. at 438 ("Keeping the child in limbo, hoping for
some long[-]term unification plan, would be a misapplication of the law."). To
that end, the emphasis has "shifted from protracted efforts for reunification with
a birth parent to an expeditious, permanent placement to promote the child's
well-being." C.S., 367 N.J. Super. at 111 (citing N.J.S.A. 30:4C-11.1).
That is because "[a] child cannot be held prisoner of the rights of others,
even those of [the child's] parents. Children have their own rights, including the
right to a permanent, safe and stable placement." Ibid. The question then is
"whether the parent can become fit in time to meet the needs of the child[]."
N.J. Div. of Youth & Fam. Servs. v. F.M., 375 N.J. Super. 235, 263 (App. Div.
2005); see also P.P., 180 N.J. at 512 (observing that even if a parent is trying to
change, a child cannot wait indefinitely); N.J. Div. of Youth & Fam. Servs. v.
B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996) (holding that the "termination
action was not predicated upon bonding, but rather reflected [the child's] need
for permanency and [the defendant's] inability to care for him in the foreseeable
future"). The judge's findings are therefore supported by both the law and the
public policy behind it.
A-3620-23 32 In disputing the judge's findings as to prongs one and two, P.A.A. asserts
that mental illness alone is not sufficient to justify the termination of parental
rights and her relative compliance with services showed her willingness to
address her mental health problems. However, "a psychiatric disability can
render a parent incapable of caring for his or her children." N.J. Div. of Youth
& Fam. Servs. v. I.Y.A., 400 N.J. Super. 77, 94 (App. Div. 2008); see also A.G.,
344 N.J. Super. at 438-39 (affirming an order terminating a mother's parental
rights to her son because the expert medical testimony clearly established the
mother's lengthy history of mental illness prevented her from raising her son ).
Moreover, the standard is not merely whether a parent is unwilling to
eliminate the circumstances that led to the child's removal, but whether 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." N.J.S.A. 30:4C -
15.1(a)(2) (emphasis added). Although there were periods when P.A.A.
participated in services, there was substantial credible evidence in the record
that P.A.A. would still experience episodes of psychosis, despite compliance
with her medication regimen, and could not recognize when she was having a
manic or depressive episode. Given the nature and pervasiveness of her mental
disorder, P.A.A. was unable to eliminate the risk of harm to F.A.A. despite her
A-3620-23 33 willingness to attend services. In Stilwell's March 8, 2024 psychological
evaluation of P.A.A., she concluded that parental responsibilities would
exacerbate P.A.A.'s disorders and place F.A.A. at a heightened risk of harm.
What is more, there is evidence in the record, both documentary and testimonial,
that P.A.A. acted aggressively on multiple occasions while undergoing an
episode. Thus, the judge's findings that prongs one and two were established as
to P.A.A. is fully supported by the credible evidence in the record and we reject
P.A.A.'s contentions to the contrary.
We also reject R.S.'s challenge to the judge's findings of prongs one and
two and his claim that he never harmed F.A.A. because he never lived with her.
He also asserts he was not unwilling to eliminate any putative harm to F.A.A.
because he attended substance abuse treatment despite disagreeing that he had
an alcohol problem. The record is replete with credible evidence that R.S. has
an unresolved alcohol abuse problem, has experienced periods of transience and
joblessness, and his prognosis for change is poor. "[I]njury to children need not
be physical to give rise to State termination of biological parent-child
relationships. Serious and lasting emotional or psychological harm to children
as the result of the action or inaction of their biological parents can constitute
injury sufficient to authorize the termination of parental rights." In re
A-3620-23 34 Guardianship of K.L.F., 129 N.J. 32, 43-44 (1992) (citing In re Guardianship of
J.C., 129 N.J. 1, 18 (1992)).
Harm may also be caused by a parent's failure to provide "attention and
concern" for a child, A.W., 103 N.J. at 613, and by the parent's "failure to take
responsibility for [the] child[] and to perform any substantial parental
functions," DMH, 161 N.J. at 383; see ibid. (holding that parental rights may be
terminated based upon risk of harm, even in the absence of physical harm); see
also B.G.S., 291 N.J. Super. at 591-93 (holding that the parent's failure to
provide a permanent home, causing child to suffer psychological damage, may
authorize termination of parental rights).
R.S. had ample opportunities to participate in substance abuse treatment
but was unwilling to comply. He had poor attendance at the programs, and many
of the urine samples he submitted were positive for alcohol. In addition, the
Division provided R.S. with information to obtain housing but he never
contacted the agencies. At various times, R.S. reported that he had housing with
either his brother or with P.A.A., but residing in those locations did little to
encourage him to attend services to achieve reunification with F.A.A. Instead,
R.S. made little to no effort to become a viable parent for F.A.A., failed to
complete treatment, and continued to abuse alcohol. Indeed, R.S.'s excessive
A-3620-23 35 consumption of alcohol rendered him unconscious on occasion. R.S.'s behavior
demonstrated that he did not want to reunify with F.A.A. and had no interest in
co-parenting with P.A.A.
Likewise, we reject R.S.'s contention that the services the Division
provided to him were unreasonable. Under prong three, "[t]he diligence of [the
Division's] efforts on behalf of a parent is not measured by their success[,] . . .
[but] must be assessed against the standard of adequacy in light of all the
circumstances of a given case." DMH, 161 N.J. at 393. "[E]ven [the Division's]
best efforts may not be sufficient to salvage a parental relationship," F.M., 211
N.J. at 452, and "[e]ven if the Division had been deficient in the services offered
to [the parent], reversal would still not be warranted, because the best interests
of the child controls," N.J. Div. of Youth & Fam. Servs. v. F.H., 389 N.J. Super.
576, 621 (App. Div. 2007). Here, the Division provided ample services tailored
to R.S.'s needs but he failed to avail himself of the opportunities.
In his challenge to the judge's prong three findings, R.S. asserts that
alternatives to termination of parental rights were not considered because D.H.
and C.M. wanted to care for F.A.A. "As part of its analysis of the third prong,
the court is required to consider alternatives to the termination of parental
rights." H.R., 431 N.J. Super. at 226 (citing N.J.S.A. 30:4C-15.1(a)).
A-3620-23 36 Alternatives to termination of parental rights can include placement with a
relative, N.J.S.A. 30:4C-12.1(a), or the creation of a KLG arrangement, N.J.
Div. of Youth & Fam. Servs. v. L.L., 201 N.J. 210, 222-23 (2010). Reunification
is not an alternative, however, if the child could be harmed if returned to the
parent. A.W., 103 N.J. at 605.
Contrary to R.S.'s claim, the judge considered alternatives to termination
of parental rights when she determined that F.A.A. should be adopted by E.J.
D.H. and C.M. were not interested in a KLG arrangement but wanted to adopt
F.A.A. Additionally, neither expert advocated for F.A.A.'s KLG placement with
D.H. and C.M. Further, KLG was not a true alternative for E.J. because her
long-stated desire was to adopt F.A.A. and she only considered KLG when she
thought F.A.A. would be removed from her care. The judge observed that
F.A.A.'s visits with D.H. and C.M. were enjoyable because the visits were for
short periods, involved enjoyable activities, and F.A.A. was not subject to much
discipline.
In contrast, there was no dispute by the experts that E.J. was F.A.A.'s
primary attachment figure. Although Stilwell did not offer an opinion on where
F.A.A. should be placed, Stilwell stated that F.A.A. would not experience harm
if her relationship with D.H. and C.M. were severed, but that F.A.A. would
A-3620-23 37 suffer harm if she were removed from E.J. Diaz also opined that F.A.A. would
suffer long-term harm if removed from E.J. Stilwell also pointed out that E.J.
facilitated F.A.A.'s sibling visits and that F.A.A. shared a sibling bond with
E.J.'s other daughters. The record amply supports the judge's decision that
termination of parental rights followed by adoption by E.J. served F.A.A.'s best
interests more than placement with D.H. and C.M.
For the same reason, we reject P.A.A.'s argument that the judge should
have ordered KLG with E.J. E.J.'s desire to adopt F.A.A. was consistent. N.J.
Div. of Child Prot. & Permanency v. M.M., 459 N.J. Super. 246, 274-75 (App.
Div. 2019) (explaining that evidence that establishes a resource parent's clear
and informed preference for adoption will support a trial court's finding that
there are no alternatives to termination of parental rights). E.J. only agreed to
consider KLG out of fear that F.A.A. would be removed from her home.
P.A.A. contends the judge erred when she found that her mental illness
barred KLG. She asserts that the 2021 Amendments indicate a legislative
preference for KLG over adoption and the judge erred by not placing F.A.A.
with E.J. under a KLG arrangement. Similarly, R.S. argues that the 2021
Amendments require the Division to place children with biological relatives and,
as a result, the Division should have placed F.A.A. with D.H. and C.M.
A-3620-23 38 In 2021, the Legislature amended Title 3B, governing KLG proceedings.
L. 2021, c. 154, § 4. The Legislature removed the requirement that courts find
"adoption of the child is neither feasible nor likely" before courts can appoint a
caregiver as a kinship legal guardian. Compare L. 2021, c. 154, § 4 (current
N.J.S.A. 3B:12A-6(d)(3)), with L. 2006, c. 47, § 32 (prior version). As
amended, the KLG Act ensures that a resource parent's willingness to adopt no
longer forecloses KLG, making KLG an equally available permanency plan for
children in Division custody. See N.J.S.A. 3B:12A-6(d)(3). However, nothing
in the amendment implies KLG by relative resource parents is the preferred
outcome over adoption, see D.C.A., 474 N.J. Super. at 27-28, and "awarding
kinship legal guardianship" must still be "in the child's best interests," N.J.S.A.
3B:12A-6(d)(4). Although the amendments ensure that a caretaker's willingness
to adopt no longer forecloses KLG, they do not render KLG a categorical bar to
termination of parental rights.
We reject R.S.'s argument that the judge should have approved F.A.A.'s
placement with D.H. and C.M. The 2021 Amendments specifically state that
"[k]inship care," not KLG, is "the preferred resource" for the placement of a
child "who must be removed" from his or her birth parents. L. 2021, c. 154, §
1(b); see also S. Health, Hum. Servs. & Senior Citizens Comm. Statement to S.
A-3620-23 39 3814, at 3 (June 10, 2021) (clarifying that court is required to first consider
placement of child with relative or person with kinship relationship when
determining if child should be placed in custody of another suitable person) ;
M.M. v. Dep't of Child. & Fams., 479 N.J. Super. 471, 491 (App. Div. 2024)
(eschewing an interpretation of the 2021 amendments "favoring kinship and
relative placements" with "family member[s] 'at all costs'").
Here, the Division did consider relatives as possible kinship placements
upon F.A.A.'s removal. Specifically, the Division considered T.A. and W.R.,
before ruling them out. Due to T.A.'s inability to care for F.A.A., F.A.A.
remained with E.J., where the Division had placed her. F.A.A. remained with
E.J. while W.R. was considered and ruled out. Once the Division became aware
of D.H. and C.M., it arranged for visitation, including overnight visitation, and
evaluated them as potential long-term caregivers for F.A.A. However, at that
point, nearly three years had passed. During that time, F.A.A. had been
continuously in the care of E.J.
Thus, the 2021 Amendments were not violated by the Division's
placement of F.A.A. with E.J. The plain text of the statute presumes that the
preference for "kinship care" is applicable when the placement is made around
the time of removal. L. 2021, c. 154, § 1(b); see also DiProspero v. Penn, 183
A-3620-23 40 N.J. 477, 492 (2005) (explaining that when interpreting a statute, courts will
give words their "ordinary meaning and significance." (citing Lane v.
Holderman, 23 N.J. 304, 313 (1957))). Under the statute, the judge was not
required to remove F.A.A. from E.J. and place her with D.H. and C.M. because
the original removal had occurred years earlier. Instead, the judge considered
the totality of the circumstances and determined what was in F.A.A.'s best
interests. See D.C.A., 474 N.J. Super. at 26 (explaining that 2021 Amendments
do not alter ultimate consideration that court must determine what is in child's
best interests).
Notably, one of the reasons the Legislature cited for promoting kinship
care was to maintain a connection to the biological family, as well as that
family's cultural traditions. Indeed, the purpose of the 2021 Amendments is not
only to protect children, but also to protect and preserve parental rights by
maintaining familial connections through cultural traditions while offering
children safety and stability. L. 2021, c. 154, § 1(b).
However, here, D.H. and C.M. had no relationship with defendants.
Stilwell testified it was unclear what relationship, if any, D.H. and C.M. had
with R.S.'s side of the family, and the judge noted that C.M. primarily discussed
relatives on her side of the family, who had no biological connection to R.S. As
A-3620-23 41 a result, the judge determined there was no difference between F.A.A. spending
time with C.M.'s relatives as opposed to E.J.'s family. We are satisfied the judge
did not misinterpret or misapply the 2021 Amendments. Rather, the 2021
Amendments support the judge's course of action and analysis.
As for prong four, R.S. accuses the judge of terminating his parental rights
based on a faulty conclusion that F.A.A. was "better off" being placed with E.J.
He relies on his attendance at visitation to support his argument .
The crux of the fourth statutory subpart is the child's need for a permanent and stable home, along with a defined parent-child relationship. C.S., 367 N.J. Super. at 119. When a bond exists between the child and the caretaker parent, and the biological parents cannot correct their poor conduct, the termination of their parental rights will not do more harm than good. E.P., 196 N.J. at 108. If the separation of the child from the caretaking parents will cause serious harm, then the fourth subpart is fulfilled. Id. at 108-09. The court can rely on expert testimony to make the relevant determination. J.C., 129 N.J. at 19. Overall, the court's focus should be on the child's need for permanency. M.M., 189 N.J. at 281.
[H.R., 431 N.J. Super. at 226-27 (citations reformatted).]
See also D.C.A., 474 N.J. Super. at 28 (explaining that "courts must, at the very
least, consider the child's bond to a current placement when evaluating prong
four").
A-3620-23 42 Here, the record supports the judge's conclusion that F.A.A. would be
harmed if reunified with R.S. and if her bond with E.J. was severed. That
conclusion is supported by undisputed expert testimony regarding the
consequences that would result from termination of parental rights and F.A.A.'s
need for permanency. At the time of trial, F.A.A. had been out of the home for
over three-and-one-half years, during which time R.S. had failed to engage in
services on a consistent basis and F.A.A. had become securely attached to E.J.
Under the circumstances, we discern no reason to disturb the judge's finding that
prong four was satisfied.
For the first time on appeal, P.A.A. raises various evidence arguments,
claiming the judge showed bias against her by admitting and considering certain
evidence. Specifically, she asserts the judge erred when she took judicial notice
of orders from other docket numbers 5 and admitted certain contact sheets
prepared by McKie. P.A.A. also complains that McKie should have been
sequestered prior to testifying and that the judge erred by not entering a
sequestration order sua sponte.
Because P.A.A. did not object at trial, we review for plain error. Under
the plain error standard, P.A.A. carries the burden of demonstrating that the error
5 The questioned orders were not provided in the record on appeal. A-3620-23 43 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. R. 2:10-2. "The
mere possibility of error is insufficient for reversal," N.J. Div. of Youth & Fam.
Servs. v. N.S., 412 N.J. Super. 593, 622 (App. Div. 2010), and "[r]elief under
the plain error rule, R. 2:10-2, at least in civil cases, is discretionary and 'should
be sparingly employed,'" Baker v. Nat'l State Bank, 161 N.J. 220, 226 (1999)
(quoting Ford v. Reichert, 23 N.J. 429, 435 (1957)).
In her written opinion, the judge took judicial notice of court orders from
other cases pertaining to the Division's involvement with P.A.A. and another
daughter. Judicial notice allows the court to promote judicial economy by
precluding the necessity of proving facts that cannot seriously be disputed and
are either generally or universally known. N.J.R.E. 201(b)(1). A court may take
judicial notice on its own as a matter of discretion. N.J.R.E. 201(c). Pursuant
to N.J.R.E. 201(b)(4), a court may judicially notice records of the court in which
the action is pending or of any other court of the State of New Jersey, among
others. For example, pleadings in prior litigation between the same parties were
judicially noticed in Schweizer v. MacPhee, 130 N.J. Super. 123, 125 n.2 (App.
Div. 1974); see also Twp. of Brick v. Vannell, 55 N.J. Super. 583, 587-88 (App.
Div. 1959) (holding that court may take judicial notice of trial record of prior
A-3620-23 44 court proceeding). Moreover, N.J.R.E. 201(e) explicitly contemplates that a
court may take judicial notice "before notifying [the] part[ies]."
We are convinced that the judge taking judicial notice of the prior court
orders does not rise to the level of plain error. The information contained in the
prior orders was undisputed, admissible, and the proper subject of judicial
notice. Although it would have been preferable for the judge to provide advance
notice of her actions, a review of the judge's opinion terminating P.A.A.'s
parental rights to F.A.A. dispels any doubt that the judge relied upon the facts
adduced in the prior proceedings in reaching her decision.
We also reject P.A.A.'s contention that the judge erred by admitting
McKie's contact sheets referencing the February 25, 2021 visitation session
recounting McKie's observation of P.A.A. pushing F.A.A.'s head downward into
the changing pad. Division reports are generally admissible under the N.J.R.E.
803(c)(6) business record exception to hearsay. N.J. Div. of Child Prot. &
Permanency v. N.T., 445 N.J. Super. 478, 495-96 (App. Div. 2016); see R. 5:12-
4(d) (providing that the Division "shall be permitted to submit into evidence,
pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or
professional consultants"). Because "requiring all [Division] personnel having
contact with a particular case to give live testimony on all the matters within
A-3620-23 45 their personal knowledge would cause an intolerable disruption[,] . . . it becomes
necessary to allow certain evidence to be produced in a hearsay form." N.T.,
445 N.J. Super. at 496 (alteration in original) (quoting In re Guardianship of
Cope, 106 N.J. Super. 336, 343 (App. Div. 1969)).
Therefore, statements to the report's author "by Division 'staff
personnel . . . [made based on] their own first-hand knowledge of the case, at a
time reasonably contemporaneous with the facts they relate, and in the usual
course of their duties with the' Division" are admissible. Ibid. (alteration in
original) (quoting Cope, 106 N.J. Super. at 343); see A.W., 103 N.J. at 595 n.1
(same); see also N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328,
346-47 (2010) (allowing for admission of documentary evidence from the
Division); N.T., 445 N.J. Super. at 487 (discussing requirements for admitting
Division reports under N.J.R.E. 803(c)(6)).
Because the Division contact sheet was admissible as a business record,
there is no plain error. It was prepared by McKie in connection with his position
as a Division caseworker approximately thirteen days after the incident.
Importantly, the judge relied on McKie's trial testimony, rather than the contact
sheet, in considering the incident and did not find that P.A.A. suffocated F.A.A.
or caused her bodily harm during the incident.
A-3620-23 46 Equally unavailing is P.A.A.'s contention that McKie should have been
sequestered sua sponte because he embellished his trial testimony about the
visitation incident only after hearing Stilwell's trial testimony referring to the
incident as P.A.A.'s attempt to "suffocate" F.A.A.
"Sequestration of witnesses is governed by N.J.R.E. 615, which states,
'[a]t the request of a party or on the court's own motion, the court may, in
accordance with [the] law, enter an order sequestering witnesses.'" State v.
Williams, 404 N.J. Super. 147, 159 (App. Div. 2008) (first alteration in original)
(italicization omitted) (quoting N.J.R.E. 615). "Sequestration is discretionary
with the trial judge." Id. at 159-60 (citing State v. Miller, 299 N.J. Super. 387,
399 (App. Div. 1997)). "Its purpose is 'to prevent prospective witnesses from
hearing what the other witnesses detail in their evidence, "for the less a witness
hears of another's testimony, the more likely is [the witness] to declare his [or
her] own knowledge simply and unbiased."'" Id. at 160 (quoting State v.
DiModica, 40 N.J. 404, 413 (1963), overruled on other grounds by State v.
Czachor, 82 N.J. 392 (1980)). "Absent a clear showing of prejudice an
inadvertent violation of a sequestration order does not trigger automatic
exclusion of the witness'[s] testimony." Ibid.
A-3620-23 47 McKie's presence in the courtroom during trial did not constitute error "of
such a nature as to have been clearly capable of producing an unjust result ." R.
2:10-2. The visitation incident was not the basis for the judge's decision to
terminate P.A.A.'s parental rights. In the absence of a clear showing of
prejudice, we discern no plain error.
Finally, to the extent we have not expressly addressed any of defendants'
arguments, they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3620-23 48
Related
Cite This Page — Counsel Stack
Dcpp v. P.A.A. and R.S., in the Matter of the Guardianship of F.A.A., Counsel Stack Legal Research, https://law.counselstack.com/opinion/dcpp-v-paa-and-rs-in-the-matter-of-the-guardianship-of-faa-njsuperctappdiv-2025.