DCPP VS. J.E.T. AND T.E.F., IN THE MATTER OF THE GUARDIANSHIP OF S.A.F. (FG-07-0045-19, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 28, 2020
• Docket: A-3886-18T2/A-3888-18T2
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3886-18T2 A-3888-18T2

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.E.T. and T.E.F.,

Defendants-Appellants,

and

S.B.,1

Defendant. __________________________

IN THE MATTER OF THE GUARDIANSHIP OF S.A.F.,

a Minor. __________________________

1 Although "S.B." was originally named as a co-defendant in the guardianship complaint, that individual was not part of the trial proceedings or the present appeal. Submitted May 11, 2020 – Decided May 28, 2020

Before Judges Sabatino and Natali.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0045-19.

Joseph E. Krakora, Public Defender, attorney for appellant J.E.T. (Robyn A. Veasey, Deputy Public Defender, of counsel; Lauren Derasmo, Designated Counsel, on the briefs).

Joseph E. Krakora, Public Defender, attorney for appellant T.E.F. (Robyn A. Veasey, Deputy Public Defender, of counsel; Kimberly A. Burke, Designated Counsel, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for respondent (Donna Sue Arons, Assistant Attorney General, of counsel; Diane L. Scott, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Louise M. Cho, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

In this Title 30 guardianship case, J.E.T. ("the mother") and T.E.F. ("the

father") each appeal the Family Part's April 24, 2019 decision terminating their

respective parental rights to their son, S.A.F., after a two-day trial. We affirm,

A-3886-18T2 2 substantially for the reasons expressed in Judge James R. Paganelli's

comprehensive written post-trial opinion.

We incorporate by reference the facts and procedural history extensively

detailed in the trial court's opinion. The following brief summary of certain

matters will suffice.

The child was born in June 2017 and is now nearly three years old.

Although the mother took the child into her family's home briefly after birth, he

was removed for emergent safety reasons by the Division of Child Protection

and Permanency ("the Division") in August 2019. Since that time, the child has

been with resource parents who now want to adopt him.

Both parents have had a long history of unresolved issues with substance

abuse, mental health, and housing instability. They have had domestic violence

episodes with one another. After the father strangled the mother, she obtained

a final restraining order against him. In related criminal proceedings, the father

pled guilty to third-degree aggravated assault against the mother, and he was

incarcerated from March 2018 to June 2018.

Both parents have been effectively homeless for some or most of the

period since the child's birth. The mother has never been employed and the

father is sporadically and informally employed. The father appears to have been

A-3886-18T2 3 sober for several months leading up to trial, but both parents have repeatedly

failed drug tests and admitted to substantial drug abuse problems resulting in

significant consequences to their psychological and physical well-being.

Neither parent has successfully completed any of the programs or resources

offered by the Division for substance abuse, parenting skills, domestic violence

counseling, or batterer's intervention.

Although visitation records show the mother and father had generally

positive interactions with the child, the parents only sporadically attended

scheduled visits. Bonding evaluations indicated the child has little relationship

with either parent, but a strong attachment to his resource parents, with whom

he has been living since he was roughly two months old. The resource parents,

who have cared for the child since August 2017, are committed to adopting him,

and Division records and testimony indicate they can provide a safe and stable

home.

At trial, the Division presented expert testimony from a psychologist, Dr.

Eric Kirschner, which the parents did not counter with another expert. The trial

judge found Dr. Kirschner credible, describing his testimony as "thorough,

detailed, and informative," and his evaluation "balanced and fair."

A-3886-18T2 4 Among other things, Dr. Kirschner opined that neither parent is

psychologically able to parent the child now or in the foreseeable future. Dr.

Kirschner also found that the child's best interests are with remaining with the

resource parents who wish to adopt him.

The judge also found the Division's testifying caseworker credible. The

caseworker recounted the history that led to the Division's intervention, and the

many services it had offered to each parent.

The father testified in his own defense, the mother did not testify, and

neither parent called any other witnesses. The Law Guardian for the child, who

supports termination, did not present any witnesses.

After sifting through the evidence, the trial judge concluded the Division

had met its burden of proving all four prongs of the termination statute, N.J.S.A.

30:4C-15.1(a)(1) through (4), by clear and convincing evidence.

The present consolidated appeals by the parents ensued. Both parents

challenge the sufficiency of the Division's proofs on all four statutory prongs.

The father also argues his trial counsel was ineffective for failing to procure

documentation from his probation officer showing he had been sober in the

months leading up to the trial.

A-3886-18T2 5 Our scope of review in this matter is limited by well-established

principles. A reviewing court should not "disturb the family court's decision

to terminate parental rights when there is substantial credible evidence in the

record to support the court's findings." New Jersey Div. of Youth & Family

Servs. v. E.P., 196 N.J. 88, 104 (2008). The reviewing court must defer to the

trial court's findings of fact "if supported by adequate, substantial, and credible

evidence in the record." New Jersey Div. Of Youth & Family Servs. v. G.L.,

191 N.J. 596, 605 (2007).

We also must recognize the considerable expertise of the Family Part,

which repeatedly adjudicates 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 Youth

& Family Servs. v. L.J.D., 428 N.J. Super. 451, 476 (App. Div. 2012). This

limited scope of review is broadened "where the focus of the dispute is . . .

alleged error in the trial judge's evaluation of the underlying facts and the

implications to be drawn therefrom[.]" See N.J. Div. of Youth & Family Servs.

v. R.G., 217 N.J. 527, 552 (2014) (quoting In re J.T., 269 N.J. Super. 172, 188-

89 (App. Div. 1993)). In such instances, a trial court's interpretations of the la w

A-3886-18T2 6 and subsequent legal consequences of the facts are afforded no special

deference. See R.G., 217 N.J. at 552.

Viewed through this prism, we affirm the trial court's decision to terminate

these defendants' parental rights. As we have noted, we do so for the cogent

reasons extensively set forth in Judge Paganelli's written opinion. We add a few

comments by way of amplification.

The record clearly supports the judge's findings on prongs one and two of

the statutory criteria. N.J.S.A. 30:4C-15.1(a)(1) and (2). The evidence

demonstrates that both parents have been unable to provide the child in the past

with a safe and stable home, and that they are unlikely to remediate their parental

deficiencies in the foreseeable future. Both parents have a lengthy his tory of

mental health issues, drug abuse, and homelessness that provides little realistic

hope they will become capable caretakers. As we will discuss, infra, the father's

two negative urine screens preceding the trial are insufficient to offset those

persisting concerns.

Turning to prong three, N.J.S.A. 30:4C-15.1(a)(3), we concur with the

trial judge that the Division has offered both parents reasonable services,

including programs and visitations. Unfortunately, neither parent took full

advantage of those services. Although the Division delayed in providing

A-3886-18T2 7 domestic violence counseling to the mother, that delay was inconsequential

when considered in the fuller context of events. The father, meanwhile, was

offered drug treatment and batterer's intervention services, which he declined to

utilize, claiming scheduling problems. He also did not utilize other services that

were offered to him. Again, the services offered to him were, on the whole,

reasonable.

The trial judge also reasonably found under prong three that "the Division

made every effort to assess all the individuals offered" for alternative

placements. Those individuals were either ruled out after an evaluation revealed

a criminal history, because they failed to respond or provide requested

information, or because a suggested relative's contact information was never

provided to the Division.

The mother argues the Division should have been more diligent in

exploring a potential placement of her child with the maternal grandmother and

great-grandmother. We are unpersuaded this alleged deficiency requires us to

set aside the judge's decision.

The mother was not living with the maternal grandmother during the vast

majority of this matter. The mother did provide the Division with an address

associated with a home that great grandmother owned and where the maternal

A-3886-18T2 8 grandmother had lived at the time of the child's birth. The mother had lived

there with the child after he was released from the hospital. The record indicates

that the caseworker duly went to that address in December 2018 to attempt to

contact these relatives, and that no one was home. The caseworker sent follow-

up letters and ultimately rule-out letters to that same address. There was no

response.

The mother suggests the maternal grandmother may have moved from the

home where the mother and the child originally resided after the child's birth.

This is at odds with her contention that she has had a consistent and stable home

with the maternal grandmother throughout this process.

The mother also argues that because the great grandmother was a former

resource parent, the Division "clearly would have had a phone number for her."

Even assuming the Division would maintain up-to-date contact information for

former resource parents, the mother would clearly be in the best position to

provide up to date contact information on her own possible relatives, but does

not appear to have done so. See K.L.W., 419 N.J. Super. at 582 (holding that

"a parent can[not] expect the Division to locate a relative with no information").

The Division reasonably attempted, in person and by mail, to reach both these

relatives without success.

A-3886-18T2 9 Other alternatives, such as "long-term specialized care," were

inappropriate and properly ruled out. The court considered Kinship Legal

Guardianship ("KLG") and rightly determined it was inapplicable because the

child's resource parents were willing and able to adopt. N.J. Div. of Youth &

Family Servs. v. P.P., 180 N.J. 494, 512-13 (2004). We therefore affirm the

judge's findings on prong three.

As to prong four, N.J.S.A. 30:4C-15.1(a)(4), there is abundant evidence

in the record to support the judge's conclusion that termination would not do the

child more harm than good. The court found, and the record reflects, that the

child had developed a strong psychological attachment to his resource parents.

The child had essentially no relationship with the mother. Although the father

appears to have had some arguably meaningful interaction with the child, it was

not nearly as significant as the bond the child felt to his resource parents.

We reject the mother's claim that the resource parents should have been

rejected out of hand because of alleged cultural differences that lack any expert

testimony. The court found Dr. Kirschner's testimony credible, and his

testimony is sufficient to show termination will not do more harm than good

under prong four.

A-3886-18T2 10 Moreover, the child's strong interests in permanency warranted the chosen

outcome so he can now be freed for adoption. See In re Guardianship of J.C.,

129 N.J. 1, 26 (1992) (holding that "children have an overriding interest in

stability and permanency" that weighs in favor of a resolution of their legal

status).

Lastly, the father argues his trial counsel was ineffective for failing to

produce clean drug tests from his probation demonstrating he had been sober for

several months prior to trial. He argues his counsel's failure to procure the clean

drug tests was deficient because it did not allow him to defend against th e

Division's overall case, which relied heavily on both parents' drug use, and

because it allegedly limited his counsel's ability to cross examine the Division's

experts at trial. He concludes it is "reasonably probable that" had this

information been admitted, the outcome would have been different. We

disagree.

We are mindful that the termination of parental rights "implicates a

fundamental liberty interest;" as such, a parent in a termination case is entitled

to effective assistance of counsel. New Jersey Div. of Youth & Family Servs.

v. B.R., 192 N.J. 301, 305–06 (2007). In a termination case, counsel's

performance is evaluated by the standard for ineffective assistance of counsel

A-3886-18T2 11 established in Strickland v. Washington, 466 U.S. 668, 687 (1984). B.R., 192

N.J. at 308-09. A parent must satisfy the two-part test enunciated in Strickland

by demonstrating that: (1) counsel's performance was deficient, and (2) the

deficient performance actually prejudiced the accused's defense. 466 U.S. at

687. In reviewing such claims of ineffectiveness, courts apply a strong

presumption that defense counsel "rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment." Id.

at 690. In a parental termination case, claims of ineffective assistance of counsel

must be raised on direct appeal. R. 2:10-6.

The father submits on appeal two drug tests showing he tested negative

for cocaine, marijuana, and opiates. The first was performed on November 7,

2018 and the second on January 16, 2019. The Law Guardian argues that there

was no prejudice because the father's "testing negative for substances on two

occasions is a mere drop in the bucket of his extensive history of substance abuse

and failure to attend treatment." Likewise, the Division argues these tests would

not have overcome the totality of the circumstances, including the father's

"mental health issues, unstable housing, domestic violence, failure to

consistently visit and overall non-compliance with services."

A-3886-18T2 12 The father's argument fails to meet either element of the Strickland test.

He argues that the failure to produce records limited his counsel's cross

examination, because the trial court threatened to strike questions about his

alleged sobriety without actual proof. Nevertheless, his counsel did ask Dr.

Kirschner about whether the father's recent sobriety would change his opinion

about the father's fitness as a parent. Dr. Kirschner notably testified in response

that it would not.

As the Division and Law Guardian correctly argue, there was also no

palpable prejudice stemming from the omission of the two clean drug tests. The

father never had custody of the child due to his criminal record, and there is no

indication he has had stable housing throughout this process. Also, the father

failed to utilize critical batterer's intervention services to address his history of

domestic violence and abuse.

In sum, there is sufficient evidence to terminate the father's parental rights

even if the trial court had considered his recent sobriety, because he has not

addressed the physical and psychological issues that made him incapable of

providing his son with a safe and stable home. The father was not deprived of

the effective assistance of trial counsel in violation of B.R.

A-3886-18T2 13 All other points raised on appeal lack sufficient merit to warrant

discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-3886-18T2 14