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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4636-18T3
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
A.C.J.,
Defendant,
and
E.J.,
Defendant-Appellant. ____________________________
IN THE MATTER OF THE GUARDIANSHIP OF L.Z.J.,
A Minor. ____________________________
Argued telephonically April 27, 2020 – Decided May 22, 2020
Before Judges Sabatino and Natali. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0055-19.
Ryan T. Clark, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Robyn A. Veasey, Deputy Public Defender, of counsel; Ryan T. Clark, on the briefs).
Sara K. Bennett, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Jane C. Schuster, Assistant Attorney General, of counsel; Sara K. Bennett, on the brief).
Lynn B. Norcia, Designated Counsel, argued the cause for minor L.Z.J. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Meredith Alexis Pollock, Deputy Public Defender, of counsel; Lynn B. Norcia, on the brief).
PER CURIAM
After a two-day Title 30 guardianship trial, the Family Part issued a lengthy
written decision in July 2019 terminating the parental rights of the mother, A.C.J.,
and the father, E.J., to their son L.Z.J.1
The father now appeals, contending the Division of Child Protection and
Permanency ("the Division"), failed to meet its burden of proving all four required
elements of N.J.S.A. 30:4C-15.1 by clear and convincing evidence. The mother has
1 We use initials for the parties and other individuals as necessary to protect the child's privacy. R. 1:38-3(d)(11). A-4636-18T3 2 not appealed. The Law Guardian joins with the Division in opposing the father's
appeal. We affirm, substantially for the sound reasons comprehensively expressed
in the seventy-three-page written opinion of Judge James R. Paganelli, who presided
over the trial.
I.
The child was born in August 2017. He is presently two years and nine
months old. He was removed from the hospital by the Division at the time of his
birth on an emergency basis because of his parents’ mental health problems, drug
abuse, homelessness and other issues.
As the record reflects, the mother has severe and unremitting mental health and
drug abuse issues. She has two older children with different fathers who she has
been unable to care for, including the son’s half-sister as to whom the mother has
surrendered her parental rights.
As the record also reflects, the father has a long history of adult criminal and
juvenile offenses. He has spent much of his life incarcerated. The father was jailed
in March 2018, about seven months after the son was born. He was charged with
and convicted of third-degree theft and sentenced to prison at Mid-State Correctional
Facility. As of the time of the May 2019 guardianship trial, the father was expected
to be fully released some time in 2020.
A-4636-18T3 3 The father has been diagnosed with mental health issues, including major
depressive disorder, anxiety disorder, impulse control disorder, and bipolar disorder.
Like the mother, the father has a history of drug abuse and homelessness. He has no
stable employment history.
The son has never lived in the same household as the father. Before the father’s
most recent imprisonment, the Division arranged supervised visits for the father with
his son. However, the father missed many of the visits, which he blamed on the lack
of phone service. He only managed to make seven visits during that seven-month
period.
The Division initially placed the son with a cousin of the mother, L.H., where
his half-sister also is residing. After the Division received a report of possible sexual
abuse by another adult residing at L.H.’s home, it transferred the son to a different
resource home of a non-relative, M.P. The charges of abuse were not substantiated,
and the son was returned to L.H.’s care in December 2019, post-trial.2 Both L.H.
and M.P. have expressed an interest in adopting him.
2 We appropriately learned about the son's change in placement back to L.H. through a letter from the Division's appellate counsel pursuant to Rule 2:6-11(f). We appreciate the attentiveness of counsel in updating us and other counsel about the child's status while the appeal was pending. A-4636-18T3 4 The father participated in numerous re-entry and drug rehabilitation programs
while in prison. He has expressed a strong desire to care for his son after he is
released, and his life stabilizes. Pursuant to an order of the Family Part, the Division
provided him with monthly visits with the son at the prison.
The Division’s psychological expert, Dr. Eric Kirschner, performed bonding
evaluations of the son with the two respective resource parents, and did the same
with the father. The expert found evidence of the child’s attachment with both
resource parents but less so with the father. The expert acknowledged, however, the
child was very young and would be expected to form stronger attachments as he got
older.
There are no other identified relatives of the child, except for L.H., who showed
promise as an alternative caretaker. A related grandmother suggested by the father
was ruled out because of previous unrelated abuse allegations.
At trial the Division presented three witnesses: Dr. Kirschner, another
psychologist named Dr. Jonathan H. Mack, and a caseworker. Dr. Kirschner and the
caseworker provided testimony with respect to both the mother and the father. Dr.
Mack's testimony only concerned the mother, and we need not discuss it here.
The judge found the testimony of both Dr. Kirschner and the caseworker to be
credible. As to Dr. Kirschner, the judge found he presented "credible and
A-4636-18T3 5 uncontroverted testimony that [the son's] safety, health or development has been
or will continue to be endangered by the parental relationship with [the father]."
The judge also noted the psychologist's testimony was "direct, informative, and
tethered to the factual presentations of [the father]." Further, Dr. Kirschner
"made eye contact with questioners, answered all questions in a straightforward
manner, and was not defensive."
Similarly, the judge found the caseworker's testimony was "direct and
insightful." He added, "She was fully conversant with the facts and
circumstances surrounding the family. She was not defensive and seemed to
want to provide the court with an honest and reasonable assessment of the
family."
The father testified in his own behalf. By contrast to the testimony of the
Division's witnesses, the judge did not find the father credible. The judge was
particularly unpersuaded by the father's belief that he could become a capable
caretaker if he were given about a year to stabilize his life after his release from
prison.
The father did not present a competing expert or any other witnesses. The Law
Guardian did not call any witnesses.
A-4636-18T3 6 After considering the evidence, the judge determined that the Division had
established, by clear and convincing evidence, all four prongs of the Title 30 criteria
for the termination of parental rights. Those well-established statutory prongs are:
(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. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(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 of 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); see also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]
In analyzing these Title 30 factors, the trial judge devoted close attention to
the father's argument that his rights as a parent should not be terminated simply
because of his incarcerated status. The judge was guided in this regard by the
A-4636-18T3 7 Supreme Court's opinions on the subject in In re Adoption of Children by L.A.S.,
134 N.J. 127, 143 (1993); as later amplified in N.J. Div. of Youth & Family
Servs. v. R.G., 217 N.J. 527, 556 (2014).
As the Court stated in R.G., "incarceration alone—without particularized
evidence of how a parent’s incarceration affects each prong of the best-interests-
of-the-child standard—is an insufficient basis for terminating parental rights."
217 N.J. at 556. Even so, the Court also recognized that "incarceration is a
relevant factor in resolving termination of parental rights cases." Id. at 555.
In L.A.S., the Court remanded a guardianship case for the trial court to
reconsider whether the defendant father’s incarceration was sufficient to
terminate his parental rights, "based on either abandonment, parental unfitness,
or both." 134 N.J. at 143. In so doing, the Court in L.A.S. instructed trial courts
in imprisoned parent cases to take into account the following considerations,
which were later reiterated in R.G.:
[P]erformance as a parent before incarceration, [and] to what extent his children were able to rely on him as a parent;
[W]hat effort, if any, he has made to remain in contact with his children since his incarceration;
[W]hether he will be able to communicate and visit with his children;
A-4636-18T3 8 [W]hat effect such communications and visitation will have on the children in terms of fulfilling the parental responsibility to provide nature and emotional support, to offer guidance, advice, and instruction, and to maintain an emotional relationship with his children;
[T]he risk posed to his children by [the parent]’s criminal disposition;
[W]hat rehabilitation, if any, has been accomplished since [the parent]’s incarceration, and the bearing of those factors on the parent-child relationship
[W]ith the aid of expert opinion, determine the need of the children for permanency and stability and whether continuation of the parent-child relationship with [the parent] will undermine that need; and
[D]etermine the effect that the continuation of the parent-child relationship will have on the psychological and emotional well-being of the children.
[R.G., 217 N.J. at 555-56 (quoting L.A.S., 134 N.J. at 143-44).]
The trial judge in the present case acknowledged that incarceration alone,
without particularized evidence of how it affects the child, is an insufficient
basis for terminating parental rights. The judge accordingly conducted a
meticulous analysis of the pertinent considerations under L.A.S. and R.G.
As to the first L.A.S. consideration—past parental performance—the
judge noted that the father has never parented or lived with the son. The father
was taken into custody when the son was seven months old, and he was still in
A-4636-18T3 9 prison at the time of the judge’s opinion. The father acknowledged using drugs,
including cocaine, just prior to his arrest in March 2018.
Moreover, the Division observed the father’s unfamiliarity with children
during the pre-incarceration visits, including times when the father held the son
awkwardly, and told him to "shut up." The judge did recognize that some of
those visits "appeared to be positive." Nonetheless, he found the first L.A.S.
factor supported termination of parental rights.
The judge next analyzed under L.A.S. "[w]hether [the father] will be able
to communicate and visit with [the son], what effect such communications and
visitation will have on [the son] in terms of fulfilling parental responsibility to
provide nurture and emotional support, to offer guidance[,] advice, and
instruction, and to maintain an emotional relationship with [the son]." The judge
found that because of the son’s age, "meaningful communication [was] not
possible while [the father was] incarcerated."
Even assuming the fathers anticipated release to a halfway house, the
judge noted the son’s contact with the father will continue to be limited "for a
minimum of six months." The judge found the father "will not be in a position
to fulfill his parental responsibility to provide nature and emotional support, to
offer guidance, advice and instruction and maintain an emotional relationship."
A-4636-18T3 10 The judge also found under L.A.S. that consideration of the risks to the
child weighed against the father. He noted the father’s extensive criminal
history, citing Dr. Kirschner’s expert opinion that "the best predictor of future
behavior is past behavior." As the judge observed, the father’s legal sanctions
and confinements have had "minimal" effect on his behavior, and therefore there
has been "no meaningful rehabilitation."
Further, the judge expressed concern that the need for the father to enroll
in a halfway house for a minimum of six months, attain sobriety, employment,
and housing, could "strand the son in state foster care for at least the next year."
The judge next analyzed under L.A.S. the son’s need for permanency and
stability, and whether the father's continued parent-child relationship would
undermine that need. The judge adopted Dr. Kirschner’s credible expert opinion
that the father does not provide the son with permanency, and that "lack of
permanency leaves the child in a state of limbo where they could be removed
and placed somewhere else at any time." The judge reasoned this lack of
permanency negatively affect the child’s self-esteem and emotional stability.
The judge therefore found this consideration under L.A.S. likewise supported
termination.
A-4636-18T3 11 Lastly, the judge applied L.A.S. and considered the effect that the
continuation of the parent-child relationship would have on the psychological
and emotional well-being of the son. The judge noted that the son had been in
placement for nearly two years as of the time of trial. The judge further noted
that Dr. Kirschner’s "uncontroverted and credible opinion is that stranding [the
son] in foster care for at least another . . . year is not in his best interests and
could lead to developmental difficulties and problems with self-regulation."
After reflecting upon these considerations in accordance with L.A.S. and
R.G., the judge concluded by clear and convincing evidence that the son’s
"safety, health or development has been and will continue to be endangered by
the parental relationship with [the father]." This finding satisfied what is known
as prong one of the Title 30 criteria, N.J.S.A. 30:4C-15.1(a)(1).
Moving on, the judge further concluded that the Division had met its
burden of proof as to the remaining prongs of the Title 30 analysis.
As to prong two, the judge accepted Dr. Kirschner's expert assessment that
the father "would need an additional six to nine/twelve months to establish
communal sobriety," and also would need time to attain employment and
suitable housing. The judge "did not discount" the fact that the father has
participated in several programs in prison. However, the judge found those
A-4636-18T3 12 programs "fall short of transitioning [him] into society and transforming him
into a minimally effective parent."
The judge also found that delay in permanency would add to the son's
harm. In light of these and other pertinent facts, the judge was satisfied that
prong two under Title 30, N.J.S.A. 30:4C-15.1(a)(2), had been established.
With respect to prong three, N.J.S.A. 30:4C-15.1(a)(3), the judge duly
considered whether the Division proved it had "made reasonable efforts to
provide services to help the parent correct the circumstances which led to the
child’s placement outside the home." The judge also addressed whether
"alternatives to termination of parental rights" had been sufficiently explored .
Ibid. The judge detailed in his written opinion why the Division had met its
burden on these prong three factors.
As to services, the judge recited in his opinion a host of services that the
Division provided (or attempted to provide) to the father, both before and during
his incarceration. Among other things, the judge noted the substantial efforts
the Division had made in arranging visits. As the judge recognized, the father
failed to confirm many visits before being incarcerated, which was required by
court order, so that the Division did not needlessly transport the son back and
forth to appointments. On many occasions, the Division unsuccessfully
A-4636-18T3 13 attempted to contact the father at various phone numbers he provided to confirm
the appointments. Post-incarceration, the Division arranged monthly visits
between the father and the son at Mid-State, despite the substantial distance and
travel time from North Jersey involved.
The judge also found the Division made reasonable efforts to reunify the
father with his son, including: providing psychological evaluations,
transportation, substance abuse assessment, family placement assessments,
family team meetings, bonding evaluations, and the aforementioned visitation.
Turning to the other aspect of statutory prong three, the judge considered
alternatives to parental termination, including relative placement, kinship legal
guardianship ("KLG"), independent living, and long-term specialized care. The
father suggested his own mother for a placement assessment. However, she was
a "substantiated" perpetrator, and therefore, the Division could not place the
child with her. The Division was willing to assess other named relatives and
persons, but it was not provided with sufficient contact information for any of
them.
A-4636-18T3 14 The judge also considered KLG, but this was not an option because L.H.
and M.P. each expressed a willingness to adopt the child.3 The judge found that
such adoption was likely and feasible.
The judge also considered the possibility of independent living, but this
was not viable because the son was not yet two years old. The judge also found
that long-term specialized care was likewise not feasible because the child is not
disabled.
For these and other reasons detailed in his opinion, the judge found the
Division had met its burden on statutory prong three.
Lastly, the judge was convinced the Division had sustained its burden
under prong four, known as the "best interests" standard, N.J.S.A. 30:4C-
15.1(a)(4). This prong operates as a "fail-safe against termination even when
the remaining standards are met." N.J. Div. of Youth & Family Servs. v. G.L.,
191 N.J. 596, 609 (2007). The court examines under this prong whether
3 The Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7, which authorizes KLG, was enacted because "the Legislature recognized than an increasing number of children who cannot safely reside with their parents are in the care of a relative or a family friend who does not wish to adopt the child or children." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 222-23 (2010). A-4636-18T3 15 terminating parental ties will be more harmful to the child than beneficial. In re
Guardianship of K.H.O., 161 N.J. 337, 355 (1999).
The judge cited numerous reasons in his opinion why the Division had
shown that terminating the father's parental rights would be less harmful than
continuing to delay the child's permanency. Among other things, the judge
underscored Dr. Kirschner’s testimony that the son had formed bonds with both
L.H. and M.P. Conversely, the child had not formed a strong bond with the
father.
The judge reasoned that the child would not experience serious or
enduring psychological harm if his relationship with the father were severed.
Moreover, even if the child were to experience harm by severing his relationship
with the father, Dr. Kirschner predicted that harm could be mitigated by being
cared for by either L.H. or M.P.
In addition, the judge focused on "Dr. Kirschner’s uncontroverted and
credible opinion . . . that [the child] requires and has a right to permanency,"
and the father does not provide the son with such permanency. Further, "there
is no indication that [the father] . . . ha[s] any ability to care for [the son] in the
foreseeable future." On this point, the judge found persuasive Dr. Kirschner's
A-4636-18T3 16 testimony that the father was unable to provide the son with appropriate care, or
meet his basic needs.
II.
This appeal by the father ensued. As we have already mentioned, the
father challenges the trial court's findings on all four of the statutory criteria.
He especially focuses on prong three, contending the Division should have
provided more services to him while he has been incarcerated. In this regard,
the father asserts that the Division institutionally underfunds such services to
incarcerated parents, relies too much upon programs supplied by correctional
facilities, and should arrange for more outside service providers to come to the
prisons.
The father also contends that, under prong four, the change in the child's
placement to L.H. reported in December 2019 renders the trial court's "best
interests" findings obsolete. He asserts that the caseworker's records suggest
that L.H. is not willing to adopt the child. The father advocates that, at a
minimum, the case should be remanded for further hearings.
We reject these contentions, and the other arguments presented on appeal.
Instead, we affirm the final judgment of guardianship, substantially for the
comprehensive reasons set forth in Judge Paganelli's extensive opinion.
A-4636-18T3 17 Our review of this appeal is guided by well-settled standards for
termination cases. In such cases, the trial court’s findings generally should be
upheld so long as they are supported by "adequate, substantial, and credible
evidence." R.G., 217 N.J. at 552. A decision in this context should only be
reversed or altered on appeal if the trial court’s findings were "so wholly
unsupportable as to result in a denial of justice." N.J. Div. of Youth & Family
Servs. v. P.P., 180 N.J. 494, 511 (2004).
We must give substantial deference to the trial judge’s opportunity to have
observed the witnesses first-hand and to evaluate their credibility. R.G., 217 N.J.
at 552. We also must recognize the considerable expertise of the Family Part,
which adjudicates a large volume of cases brought by the Division under Title
9 and Title 30 involving the alleged abuse or neglect of children. See, e.g., N.J.
Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); N.J. Div. of
Child Prot. & Permanency v. B.H., 460 N.J. Super. 212, 448 (App. Div. 2019).
That said, we apply de novo review to the Family Part judge's rulings o n pure
questions of law. R.G., 217 N.J. at 552.
Little needs to be said here about the trial judge's findings of past and
future harm to the child under prongs one and two. As we have already
mentioned, the judge carefully described and considered the circumstances that
A-4636-18T3 18 resulted in the child's plight, and the unlikelihood that his father would be able
to provide a stable home for him in the near future. The judge adhered to the
principles of L.A.S. and R.G., and did not rule against the father solely because
of his incarcerated status.
Turning to prong three, we are satisfied the judge had ample credible
evidence in the record to conclude that the Division made reasonable efforts to
provide services to the father, and reasonably explored alternatives to
The monthly visits arranged at the prison, which required this young child
to be driven there from a substantial distance, bespeak reasonable efforts by the
Division to foster a father-son relationship that might enable reunification. We
recognize the Division delayed several months in following through on certain
recommendations for services, but it appears from the record the services were
ultimately provided substantially in accordance with those recommendations.
We discern nothing unreasonable about the Division not duplicating
instruction and counseling already provided within the prison by the Department
of Corrections. To be sure, more services might theoretically be beneficial to
imprisoned parents and their children, but those programmatic choices, and their
budgetary impacts, are best considered on a broader scale by policymakers. In
A-4636-18T3 19 any event, on this record, we cannot conclude that the judge misapplied the law
in rejecting the father's claim he had been given short shrift.
We are also satisfied that the court gave due consideration to alternatives
to termination. Apart from the resource parents, no other viable relatives wer e
located. The Division undertook reasonable steps to find other possible
caretakers.
Also, the judge did not err in finding that KLG is not an option. The father
asserts that L.H., the son's present resource parent, is not willing to adopt him,
citing a Division contact sheet from July 2, 2018. However, that contact sheet
appears to be about communications the caseworker had with M.P., not L.H. In
any event, the entry goes on to say that, when asked about a perception that she
did not wish to adopt, M.P. said such a perception would be "a lie." Moreover,
closer to the time of trial, both L. H. and M. P. told Dr. Kirschner during their
bonding evaluations they were willing to adopt the child.
As to prong four, we have no reason to second-guess the judge's first-hand
assessment that termination would do more harm to the child than good. The
judge's assessment is supported by the unrefuted opinions of the only relevant
testifying expert, Dr. Kirschner, who the judge found credible. The child is now
placed in a home with his half-sibling, which can be beneficial. See In re D.C.,
A-4636-18T3 20 203 N.J. 545, 563-66 (2010) (finding as a matter of general policy, the Family
Part strives to place siblings and half-siblings in the same household when
feasible and in the children's best interests). The bonding evaluation revealed
that the relative resource parent has developed a good relationship with the child.
We see no sensible reason to remand the case for more proceedings
because of the recent change in placement back to L.H. The judge's opinion
found that placement with either L.H. or M.P. would be beneficial and in the
child's best interests, as compared with a speculative placement with the father
many months after his release from prison. The child's interests in permanency
weigh against prolonging this litigation any further. L.A.S., 134 N.J. at 143-44.
All other points raised on appeal lack sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E). Although we respect the father's constitutional
rights, and his professed desire to parent, the trial evidence provides an ample
basis for the final judgment of termination.
Affirmed.
A-4636-18T3 21