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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3669-17T3
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
D.R.,
Defendant-Appellant,
and
D.T.,
Defendant. _____________________________
IN THE MATTER OF THE GUARDIANSHIP OF K.L.J.R.,
a Minor. _____________________________
Argued March 25, 2019 – Decided April 8, 2019
Before Judges Sabatino and Mitterhoff. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-0118-18.
Ryan T. Clark, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ryan T. Clark, on the briefs).
Ashley L. Davidow, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ashley L. Davidow, on the brief).
Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Melissa R. Vance, of counsel and on the brief).
PER CURIAM
D.R., the mother of K.L.J.R. ("Kendrick"),1 appeals the April 3, 2018 final
judgment of guardianship terminating her parental rights after a trial in the
Family Part. We affirm.
The mother gave birth to Kendrick in October 2014. Kendrick's father is
D.T., whose whereabouts are not clear and who has not been involved in the
child's life. The mother has two older children, a son Y.T. ("Yusef") who is in
1 We use initials and pseudonyms in this opinion to safeguard the privacy of the children. R. 1:38-3(d)(12). A-3669-17T3 2 the custody of his paternal grandfather, and a daughter A.J. ("Angie") as to
whom the mother has surrendered her parental rights.
The Division of Child Protection and Permanency ("the Division")
became involved with the mother before the birth of Kendrick for various
reasons, including her having reported suicidal ideations at a shelter and having
been arrested for shoplifting. The mother has been diagnosed with bipolar I
disorder and other mental health disorders. She has persisting drug abuse
problems and has repeatedly tested positive for marijuana as well as opioids
during much of the litigation.
Kendrick was removed from the mother's care by the Division at the age
of one in October 2015. Kendrick was placed in a resource parent's residence,
where he manifested behavioral issues. The resource parent did not want to keep
or adopt Kendrick so the Division proceeded on a court-approved path of
terminating the mother's parental rights and select home adoption.
Meanwhile, the Division arranged supervised visits with the mother, many
of which she either missed or arrived for late. During the supervised visits, t he
mother was observed engaging, at times, in inappropriate behavior.
The Division found no suitable local relatives to step in as alternative
caretakers. One relative in California whom the mother identified moved to Las
A-3669-17T3 3 Vegas and never provided contact information. The mother alternatively
suggested as a caretaker Yusef's grandfather (with whom she had been living for
a period of time), along with several other persons who for various reasons were
not appropriate caretakers. There is no indication in the record that Yusef's
grandfather (who has no biological connection with Kendrick) was willing to
take Kendrick into his home. The Division did not perform a home visit by the
mother because it thought it would not be feasible to allow her to care for
Kendrick there.
The Division presented at trial testimony from a caseworker, who
described the relevant chronology and the litany of services the Division
provided to the mother.
The Division also presented unrebutted expert testimony of Dr. Linda
Jeffrey, a psychologist. Dr. Jeffrey confirmed the mental health diagnoses of
the mother. She found it significant that the mother had not been in sustained
remission from her drug problems for over a year. She opined that the persisting
drug use was detrimental to her ability to parent Kendrick and indicative that
the mother would not be fit to take care of him. The expert performed a bonding
evaluation, in which Kendrick exhibited only an "insecure" attachment to his
mother.
A-3669-17T3 4 The mother testified on her own behalf. She attempted to explain her
efforts to combat her drug problems and stabilize her life. The mother presented
no competing expert testimony or other fact witnesses.
After hearing the evidence, the trial judge, Hon. Francine I. Axelrad,
applied the four statutory factors that govern the termination of parental rights
in Title 30 litigation. Those four factors 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 [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a); 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).]
A-3669-17T3 5 The judge concluded that the Division established all four of these factors
by the requisite standard of clear and convincing evidence. The judge detailed
her analysis in an oral opinion she read into the record on April 3, 2018.
Essentially, the judge regarded the mother's efforts to become a fit caretaker as
being "too little too late." The judge found that it was in the child's best interests
to terminate parental rights to allow for the opportunity to be adopted by some
other family. The judge entered a final judgment of guardianship that day as to
both parents.
The mother filed a timely notice of appeal. The father has not appealed.
While the appeal was pending, the Division's attorney submitted an update letter
in August 2018 pursuant to Rule 2:6-11(f), informing this court that Kendrick
had been removed from his previous resource home and had been placed in a
"prospective adoptive home" with his sister Angie. 2 The resource parent is
apparently a friend of the mother's family.
On appeal, the mother contends that the Division failed to meet its burden
of proof at trial as to all four statutory factors. Among other things, the mother
argues that the Division, the testifying expert Dr. Jeffrey, and the trial court
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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-3669-17T3
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
D.R.,
Defendant-Appellant,
and
D.T.,
Defendant. _____________________________
IN THE MATTER OF THE GUARDIANSHIP OF K.L.J.R.,
a Minor. _____________________________
Argued March 25, 2019 – Decided April 8, 2019
Before Judges Sabatino and Mitterhoff. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-0118-18.
Ryan T. Clark, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ryan T. Clark, on the briefs).
Ashley L. Davidow, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ashley L. Davidow, on the brief).
Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Melissa R. Vance, of counsel and on the brief).
PER CURIAM
D.R., the mother of K.L.J.R. ("Kendrick"),1 appeals the April 3, 2018 final
judgment of guardianship terminating her parental rights after a trial in the
Family Part. We affirm.
The mother gave birth to Kendrick in October 2014. Kendrick's father is
D.T., whose whereabouts are not clear and who has not been involved in the
child's life. The mother has two older children, a son Y.T. ("Yusef") who is in
1 We use initials and pseudonyms in this opinion to safeguard the privacy of the children. R. 1:38-3(d)(12). A-3669-17T3 2 the custody of his paternal grandfather, and a daughter A.J. ("Angie") as to
whom the mother has surrendered her parental rights.
The Division of Child Protection and Permanency ("the Division")
became involved with the mother before the birth of Kendrick for various
reasons, including her having reported suicidal ideations at a shelter and having
been arrested for shoplifting. The mother has been diagnosed with bipolar I
disorder and other mental health disorders. She has persisting drug abuse
problems and has repeatedly tested positive for marijuana as well as opioids
during much of the litigation.
Kendrick was removed from the mother's care by the Division at the age
of one in October 2015. Kendrick was placed in a resource parent's residence,
where he manifested behavioral issues. The resource parent did not want to keep
or adopt Kendrick so the Division proceeded on a court-approved path of
terminating the mother's parental rights and select home adoption.
Meanwhile, the Division arranged supervised visits with the mother, many
of which she either missed or arrived for late. During the supervised visits, t he
mother was observed engaging, at times, in inappropriate behavior.
The Division found no suitable local relatives to step in as alternative
caretakers. One relative in California whom the mother identified moved to Las
A-3669-17T3 3 Vegas and never provided contact information. The mother alternatively
suggested as a caretaker Yusef's grandfather (with whom she had been living for
a period of time), along with several other persons who for various reasons were
not appropriate caretakers. There is no indication in the record that Yusef's
grandfather (who has no biological connection with Kendrick) was willing to
take Kendrick into his home. The Division did not perform a home visit by the
mother because it thought it would not be feasible to allow her to care for
Kendrick there.
The Division presented at trial testimony from a caseworker, who
described the relevant chronology and the litany of services the Division
provided to the mother.
The Division also presented unrebutted expert testimony of Dr. Linda
Jeffrey, a psychologist. Dr. Jeffrey confirmed the mental health diagnoses of
the mother. She found it significant that the mother had not been in sustained
remission from her drug problems for over a year. She opined that the persisting
drug use was detrimental to her ability to parent Kendrick and indicative that
the mother would not be fit to take care of him. The expert performed a bonding
evaluation, in which Kendrick exhibited only an "insecure" attachment to his
mother.
A-3669-17T3 4 The mother testified on her own behalf. She attempted to explain her
efforts to combat her drug problems and stabilize her life. The mother presented
no competing expert testimony or other fact witnesses.
After hearing the evidence, the trial judge, Hon. Francine I. Axelrad,
applied the four statutory factors that govern the termination of parental rights
in Title 30 litigation. Those four factors 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 [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a); 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).]
A-3669-17T3 5 The judge concluded that the Division established all four of these factors
by the requisite standard of clear and convincing evidence. The judge detailed
her analysis in an oral opinion she read into the record on April 3, 2018.
Essentially, the judge regarded the mother's efforts to become a fit caretaker as
being "too little too late." The judge found that it was in the child's best interests
to terminate parental rights to allow for the opportunity to be adopted by some
other family. The judge entered a final judgment of guardianship that day as to
both parents.
The mother filed a timely notice of appeal. The father has not appealed.
While the appeal was pending, the Division's attorney submitted an update letter
in August 2018 pursuant to Rule 2:6-11(f), informing this court that Kendrick
had been removed from his previous resource home and had been placed in a
"prospective adoptive home" with his sister Angie. 2 The resource parent is
apparently a friend of the mother's family.
On appeal, the mother contends that the Division failed to meet its burden
of proof at trial as to all four statutory factors. Among other things, the mother
argues that the Division, the testifying expert Dr. Jeffrey, and the trial court
2 At oral argument on appeal in March 2019, the Division's counsel represented that Kendrick remains in that same home with Angie, who has been adopted by the resource parent. A-3669-17T3 6 placed undue emphasis on her past drug use, stressing that she maintained four
months of sobriety before the trial. The mother contends that she has not harmed
Kendrick or caused him a "concrete emotional or physical injury." She
maintains that if she was provided sufficient housing assistance, she could
provide him with a safe and stable home.
The mother further emphasizes that she has visited with Kendrick for over
one hundred hours while he has been in the Division's care and custody and
contends there is an attachment between them that should not be severed. The
mother also contends that Kendrick's behavioral problems that were noted at
trial may stem from substandard conditions at the resource home.
In sum, the mother urges that the child's best interests lie with maintaining
her parental rights. The Division and the Law Guardian oppose her arguments
and advocate in favor of affirming the trial court's decision so that Kendrick can
be adopted.
In evaluating these arguments, we are guided by well-settled principles.
We recognize that parents inherently "have a constitutional right to raise their
children." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012).
However, that right is qualified by the State's overreaching responsibility to
protect the welfare of children. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).
A-3669-17T3 7 The termination of parental rights is a measure of "last resort," limited to cases
of established neglect or harm or when a parent has been demonstrated to be
unfit. F.M., 211 N.J. at 447. The ultimate focus of a guardianship trial under
the Title 30 factors for termination is the best interests of the child. Ibid.
On appeal, our scope of review of a trial court's decision to terminate
parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.
596, 605 (2007). "Appellate courts must defer to a trial judge's findings of fact
if supported by adequate, substantial, and credible evidence in the record." Ibid.
Such deference is required because of the trial court's "superior ability to gauge
the credibility of the witnesses who testify before it and because it possesses
special expertise in matters related to the family." F.M., 211 N.J. at 448. On
appeal, the Family Part judge's factual findings should not be overturned "unless
they are so 'wide of the mark' that our intervention is necessary to correct an
injustice." Ibid.
Applying these principles, we affirm the final judgment of guardianship,
essentially for the sound reasons articulated by Judge Axelrad in her oral
opinion. We add only a few amplifying comments.
The factual and expert proofs the Division presented at trial comprise
substantial credible evidence to support the judge's findings as to each of the
A-3669-17T3 8 four statutory factors for termination. The mother's persisting serious mental
health issues, long-term drug dependency, and failure to provide a stable home
for Kendrick are well documented in the record. The mother's recent short -term
abstinence from drugs and her expectation of receiving future housing assistance
do not compel a contrary conclusion. The Division offered reasonable services
to the mother, even though she did not take full or consistent advantage of them.
In addition, although the trial judge recognized the mother's efforts to visit
her son, the unrebutted expert testimony of Dr. Jeffrey showed that Kendrick
displayed only an "insecure attachment" with his mother. Terminating her
parental rights, according to Dr. Jeffrey, would not cause the child "serious and
enduring harm." The expert opined that it would not be safe to return Kendrick
to his mother, who continues to be noncompliant with treatment for a mental
health disorder and who has not been in "sustained remission" from drug use for
a sufficiently long period.
All in all, the Division's proofs were ample to justify termination in this
case. The trial court's decision was sufficiently grounded in the evidence and
consistent with legal principles. The post-judgment developments of Kendrick's
placement in an adoptive home with his sibling, although not dispositive of the
appeal, only strengthens the rationale for termination. The trial court's decision
A-3669-17T3 9 appropriately serves the important objective of achieving permanency for a child
who has been neglected. See, e.g., N.J. Div. of Youth & Family Servs. v. S.F.,
392 N.J. Super. 201, 209-10 (App. Div. 2007); see also N.J. Div. of Child Prot.
& Permanency v. R.L.M., 236 N.J. 123, 146-47 (2018) (emphasizing the
importance of prompt judicial determinations of issues in cases involving
children awaiting permanency).
As a final subject, we briefly comment regarding the conditions of
Kendrick's former resource home, a concern raised in the appellate briefs of both
the mother and the Law Guardian. The contact sheets in the record indicate that
Kendrick was in a resource home that was overcapacity with as many as eight
children, where Kendrick was sharing a bedroom with two other children. 3 In
addition, the contact sheets reflect that a caseworker one day saw bumps on
Kendrick's arms and legs, which a Division nurse subsequently determined to
be flea bites. The records further indicate that the resource home allowed a
sippy cup used by Kendrick to become moldy. A caseworker agreed the cup
3 Apparently, the resource family had been granted some form of administrative waiver from occupancy limits for "emergency placements." One of the contact sheets indicates that the resource family was expecting two of the children to be leaving the premises soon. A-3669-17T3 10 was unacceptable to use. She photographed the cup, and explained she would
speak with the resource parent about the issue.
On the other hand, the Division's attorney notes that several caseworker
visits to the resource home indicated the house was clean and orderly, and
adequately stocked with food. In addition, Kendrick was observed to be in clean
and appropriate clothing. When Kendrick became ill with a fever and had a
seizure, the resource mother appropriately took him to a hospital emergency
room.
Regardless of their actual severity or duration, the somewhat worrisome
conditions at the resource home noted by defense counsel and the Law Guardian
do not alter our conclusion to uphold the trial court's assessment of the four
statutory factors. However, we trust the Division has taken or will take
appropriate action to assure that any substandard conditions at the resource
home do not persist. See generally N.J.S.A. 30:4C-27.3 to -27.9; N.J.A.C.
3A:14-1.1 to -5.6; N.J.A.C. 3A:17-1.1 to -2.7; N.J.A.C. 3A:51-1.1 to -8.1.
Affirmed.
A-3669-17T3 11