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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4992-18T4
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
J.S., Defendant,
and
A.R.F., JR.,1
Defendant-Appellant. ______________________________
IN THE MATTER OF THE GUARDIANSHIP OF S.L.-S.F.,
a Minor. ______________________________
Submitted July 28, 2020 – Decided August 5, 2020
1 We refer to the parties by fictitious names and initials to protect their privacy. R. 1:38-3(d)(12). Before Judges Sumners and Mayer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-0052-19.
Joseph E. Krakora, Public Defender, attorney for appellant (Robyn A. Veasey, Deputy Public Defender, of counsel; Anna F. Patras, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Assistant Attorney General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Noel Christian Devlin, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM
Defendant A.R.F., Jr., is the biological father of S.L.-S.F. (Sara), born in
2008. Defendant appeals from the June 28, 2019 judgment of guardianship
terminating his parental rights to Sara. 2 Defendant contends that the Division
of Child Protection and Permanency (Division) failed to prove each prong of
N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Taking the same
2 The judgment also terminated the parental rights of the child's biological mother, J.S., who voluntarily surrendered her rights. J.S. has not appealed the trial court's decision terminating her parental rights. A-4992-18T4 2 position advanced before the trial court, the Law Guardian supports the
termination on appeal.
Based on our review of the record and applicable law, we are satisfied that
the evidence strongly supports the decision to terminate defendant's parental
rights. Accordingly, we affirm substantially for the reasons expressed in the
thorough and thoughtful oral decision rendered by Judge Melvin L. Gelade on
June 27, 2019.
We will not recite in detail the history of the Division's interactions with
defendant and Sara. Instead, we incorporate by reference the factual findings,
credibility determinations, and legal conclusions contained in Judge Gelade's
decision. We add the following comments.
At the guardianship trial, the Division offered the testimony of a
caseworker, Amy Cottrell, as well as testimony from Dr. Karen D. Wells, an
expert in psychology, focusing on parental fitness and bonding. Sara also
testified in camera. Defendant presented expert testimony from Dr. Gerard
Figurelli, an expert in psychology and addiction. Judge Gelade found Sara and
the Division's witnesses to be truthful and credible. He also found Dr. Figurelli
to be "a sincere and credible witness" and "accept[ed] his factual testimony as
true," particularly concerning defendant's limitations to assume the obligations
A-4992-18T4 3 of a parent upon his release from incarceration and the inability to predict
whether defendant will relapse into drug use upon his release.
Dr. Wells supported the Division's plan for termination of defendant's
parental rights. She conducted a psychological evaluation of defendant as well
as a bonding evaluation between defendant and Sara. Defendant admitted to Dr.
Wells that he used narcotics for about half of his life and attended several
substance abuse programs. Based on her interview with defendant and her
review of relevant documents, Dr. Wells diagnosed defendant with, among other
things, "[o]pioid [u]se [d]isorder in early remission in a controlled
environment." Dr. Wells expressed concern that defendant's opioid use might
recur when he is released from prison.3 According to Dr. Wells, due to his
incarceration, defendant had no present ability to parent Sara. She further
opined that defendant may not fully comprehend the impact of his drug use on
Sara, as he continued using drugs even though he knew his daughter was aware
of his drug use.
3 Defendant was incarcerated on June 13, 2018 on charges of resisting arrest and aggravated assault. His anticipated release date is 2023.
A-4992-18T4 4 Dr. Wells also conducted an interview with Sara as part of her bonding
evaluation with the resource parents.4 Sara had been with the same resource
parents as a result of earlier Division proceedings involving her biological
parents. The resource parents expressed their intent to adopt Sara if her
biological parents were unable to regain custody.
Sara told Dr. Wells her parents were involved with drugs and, while she
loved them, she did not feel safe with them. She explained she felt safe and
content in the care of her resource parents. During Dr. Wells' bonding
evaluation with the resource parents, she observed a "secure and intact" bond
between Sara and her resource parents. While Sara knew her biological parents
and continued speaking with both parents, Dr. Wells determined "[t]he
psychological parenting bond is with the resource parents . . . primarily as a
result of their trustworthiness, their reliability, and the continuity of care that
they have given."
In evaluating the bond between Sara and defendant, Dr. Wells noted a
strong relationship between the two. Dr. Wells testified defendant is "kind, and
considerate, and loving towards [Sara]," and that Sara loves her father. Despite
their intact bond, Dr. Wells explained Sara did not trust that defendant would
4 The resource parents are Sara's maternal uncle and aunt. A-4992-18T4 5 prioritize her needs and avoid exposing her to harmful situations attendant to his
drug use. Dr. Wells concluded Sara would suffer some harm if the bond between
her and defendant was severed, but such harm would not be severe or enduring.
Because defendant had been periodically absent from his daughter's life, Dr.
Wells concluded Sara had grown accustomed to his absence and accepted that
she may be unable to have a sustained relationship with her father. In addition,
Dr. Wells reported Sara recognized defendant would not be available to care for
her on a day-to-day basis because he was incarcerated. Dr. Wells noted that
Sara loves her biological parents and wants to continue a relationship with them.
Dr. Wells concluded the harm to Sara from severance of the bond with her father
was mitigated by the resource parents, who had previously cared for Sara during
periods of defendant's absence or incarceration. The resource parents also told
Dr. Wells they would allow defendant to remain in contact with Sara. Based on
her evaluations, Dr. Wells determined permanency for Sara "could only occur
for her if she was adopted and [defendant's] rights were terminated."
A Division case worker, Amy Cottrell, also testified at trial. Based on her
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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-4992-18T4
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
J.S., Defendant,
and
A.R.F., JR.,1
Defendant-Appellant. ______________________________
IN THE MATTER OF THE GUARDIANSHIP OF S.L.-S.F.,
a Minor. ______________________________
Submitted July 28, 2020 – Decided August 5, 2020
1 We refer to the parties by fictitious names and initials to protect their privacy. R. 1:38-3(d)(12). Before Judges Sumners and Mayer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-0052-19.
Joseph E. Krakora, Public Defender, attorney for appellant (Robyn A. Veasey, Deputy Public Defender, of counsel; Anna F. Patras, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Assistant Attorney General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Noel Christian Devlin, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM
Defendant A.R.F., Jr., is the biological father of S.L.-S.F. (Sara), born in
2008. Defendant appeals from the June 28, 2019 judgment of guardianship
terminating his parental rights to Sara. 2 Defendant contends that the Division
of Child Protection and Permanency (Division) failed to prove each prong of
N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Taking the same
2 The judgment also terminated the parental rights of the child's biological mother, J.S., who voluntarily surrendered her rights. J.S. has not appealed the trial court's decision terminating her parental rights. A-4992-18T4 2 position advanced before the trial court, the Law Guardian supports the
termination on appeal.
Based on our review of the record and applicable law, we are satisfied that
the evidence strongly supports the decision to terminate defendant's parental
rights. Accordingly, we affirm substantially for the reasons expressed in the
thorough and thoughtful oral decision rendered by Judge Melvin L. Gelade on
June 27, 2019.
We will not recite in detail the history of the Division's interactions with
defendant and Sara. Instead, we incorporate by reference the factual findings,
credibility determinations, and legal conclusions contained in Judge Gelade's
decision. We add the following comments.
At the guardianship trial, the Division offered the testimony of a
caseworker, Amy Cottrell, as well as testimony from Dr. Karen D. Wells, an
expert in psychology, focusing on parental fitness and bonding. Sara also
testified in camera. Defendant presented expert testimony from Dr. Gerard
Figurelli, an expert in psychology and addiction. Judge Gelade found Sara and
the Division's witnesses to be truthful and credible. He also found Dr. Figurelli
to be "a sincere and credible witness" and "accept[ed] his factual testimony as
true," particularly concerning defendant's limitations to assume the obligations
A-4992-18T4 3 of a parent upon his release from incarceration and the inability to predict
whether defendant will relapse into drug use upon his release.
Dr. Wells supported the Division's plan for termination of defendant's
parental rights. She conducted a psychological evaluation of defendant as well
as a bonding evaluation between defendant and Sara. Defendant admitted to Dr.
Wells that he used narcotics for about half of his life and attended several
substance abuse programs. Based on her interview with defendant and her
review of relevant documents, Dr. Wells diagnosed defendant with, among other
things, "[o]pioid [u]se [d]isorder in early remission in a controlled
environment." Dr. Wells expressed concern that defendant's opioid use might
recur when he is released from prison.3 According to Dr. Wells, due to his
incarceration, defendant had no present ability to parent Sara. She further
opined that defendant may not fully comprehend the impact of his drug use on
Sara, as he continued using drugs even though he knew his daughter was aware
of his drug use.
3 Defendant was incarcerated on June 13, 2018 on charges of resisting arrest and aggravated assault. His anticipated release date is 2023.
A-4992-18T4 4 Dr. Wells also conducted an interview with Sara as part of her bonding
evaluation with the resource parents.4 Sara had been with the same resource
parents as a result of earlier Division proceedings involving her biological
parents. The resource parents expressed their intent to adopt Sara if her
biological parents were unable to regain custody.
Sara told Dr. Wells her parents were involved with drugs and, while she
loved them, she did not feel safe with them. She explained she felt safe and
content in the care of her resource parents. During Dr. Wells' bonding
evaluation with the resource parents, she observed a "secure and intact" bond
between Sara and her resource parents. While Sara knew her biological parents
and continued speaking with both parents, Dr. Wells determined "[t]he
psychological parenting bond is with the resource parents . . . primarily as a
result of their trustworthiness, their reliability, and the continuity of care that
they have given."
In evaluating the bond between Sara and defendant, Dr. Wells noted a
strong relationship between the two. Dr. Wells testified defendant is "kind, and
considerate, and loving towards [Sara]," and that Sara loves her father. Despite
their intact bond, Dr. Wells explained Sara did not trust that defendant would
4 The resource parents are Sara's maternal uncle and aunt. A-4992-18T4 5 prioritize her needs and avoid exposing her to harmful situations attendant to his
drug use. Dr. Wells concluded Sara would suffer some harm if the bond between
her and defendant was severed, but such harm would not be severe or enduring.
Because defendant had been periodically absent from his daughter's life, Dr.
Wells concluded Sara had grown accustomed to his absence and accepted that
she may be unable to have a sustained relationship with her father. In addition,
Dr. Wells reported Sara recognized defendant would not be available to care for
her on a day-to-day basis because he was incarcerated. Dr. Wells noted that
Sara loves her biological parents and wants to continue a relationship with them.
Dr. Wells concluded the harm to Sara from severance of the bond with her father
was mitigated by the resource parents, who had previously cared for Sara during
periods of defendant's absence or incarceration. The resource parents also told
Dr. Wells they would allow defendant to remain in contact with Sara. Based on
her evaluations, Dr. Wells determined permanency for Sara "could only occur
for her if she was adopted and [defendant's] rights were terminated."
A Division case worker, Amy Cottrell, also testified at trial. Based on her
monthly observations of Sara and her resource parents, Cottrell reported Sara
and her resource parents had a "very natural and easy" relationship. She testified
Sara felt "at home" and comfortable with the resource parents and was doing
A-4992-18T4 6 well in school. Cottrell testified the Division's plan was for the resource parents
to adopt Sara because the resource parents and Sara favored that option as a
permanent plan. Based on conversations with the resource parents, Cottrell
believed Sara would be allowed continued contact with her father because the
resource parents "wanted to make [Sara] happy and what would make her happy
is continued contact with her parents and they knew that."
The Division's final witness was Sara, who testified in camera in the
judge's chambers while defendant listened in the courtroom. Sara explained she
liked living with her aunt and uncle because it was safe, and her resource parents
paid more attention to her than did her biological parents. Sara also testified she
understood the concept of adoption and wanted to be adopted by her aunt and
uncle because no one used drugs at their home. While she lived with her
biological parents, Sara explained she often saw them using drugs and
"nod[ding] out" around the house. Sara also told the judge about a specific
incident in April 2017 when her parents were arrested for drugs during a motor
vehicle stop while Sara was in the car.
Sara testified she loves her father and would help him in any way she
could but did not want to live with him because she feared his drug use would
render the home unsafe. Sara believes she will be allowed to communicate with
A-4992-18T4 7 her father if she is adopted by the resource parents. However, Sara recognized
her aunt and uncle may restrict contact with her father upon adoption and,
although that possibility makes her feel sad, she would be "fine with that."
During the trial, defendant called only one witness, Dr. Figurelli, who
conducted a clinical interview with defendant and a bonding evaluation between
defendant and Sara. During his interview with defendant, Dr. Figurelli
concluded defendant would need intensive substance abuse treatment upon his
release from prison "in order to be able to parent at some point in a safe and
stable manner." Based on the pending charges against defendant, Dr. Figurelli
explained he could not determine whether and when defendant would be able to
parent Sara.
During his bonding evaluation, Dr. Figurelli found "multiple elements of
a significant emotionally attached relationship" between defendant and Sara.
Dr. Figurelli opined that severing the relationship between defendant and Sara
would result in severe and enduring harm to the child. While he did not evaluate
the bond between Sara and her resource parents, Dr. Figurelli opined that even
if the bond was strong, it was not certain the harm from severing the parental
relationship between Sara and defendant would be mitigated. According to Dr.
Figurelli, the optimal situation for Sara's permanency would be placement in a
A-4992-18T4 8 stable and safe environment, "perhaps like the one she's currently in, but to be
able to maintain a relationship with her biological father."
On cross-examination, Dr. Figurelli conceded certain attempts by
defendant to complete substance abuse treatment had been unsuccessful, and
defendant "had not been able . . . to sustain his recovery over a long period of
time, or a sustained period of time." He also explained the relationship between
defendant and Sara, while containing indicators of a close relationship, exhibited
some emotional conflicts. One such conflict was defendant's drug use, which
Sara observed on numerous occasions. Dr. Figurelli agreed that seeing her
father overdose likely frightened and saddened Sara. Based on information
provided as part of the evaluation, Dr. Figurelli opined Sara reasonably feared
for her life during the April 2017 incident in which the police, with guns drawn,
arrested her parents while Sara was in the rear seat of the car. In his report, Dr.
Figurelli noted Sara wanted to live with her aunt and uncle and he "put a lot of
stock" in that stated preference because Sara felt safe with them.
Judge Gelade considered the testimony and documentary evidence
presented at trial and found the Division proved all four prongs of the best
interests test by clear and convincing evidence in accordance with N.J.S.A.
30:4C-15.1(a). Based on substantial and credible evidence adduced during the
A-4992-18T4 9 trial, he determined termination of defendant's parental rights was in Sara's best
interests.
Our review of the trial judge's decision is limited. We defer to his
expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 413 (1998),
and we are bound by his factual findings so long as they are supported by
sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189
N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188
(App. Div. 1993)).
Judge Gelade found the Division met its burden of proving harm to Sara's
health, safety, and development because seeing defendant's drug use was
harmful and upsetting, particularly seeing her parents arrested for purchasing
drugs. The judge also concluded the Division proved defendant failed to take
steps to cease harming Sara as a result of his continuing drug addiction and
criminal behavior. Judge Gelade further found the Division made reasonable
efforts to provide services to facilitate reunification but that defendant's own
actions rendered those efforts unsuccessful. After evaluating the expert
testimony, the judge also concluded that the harm inherent in severing the legal
parental relationship between Sara and defendant was outweighed by the benefit
A-4992-18T4 10 of Sara being adopted by her resource parents, who would continue to care for
her in a safe and nurturing manner.
On appeal, defendant argues the judge erred in determining kinship legal
guardianship (KLG) was not a viable alternative to adoption. KLG is not
available when adoption is feasible and likely. N.J. Div. of Youth & Family
Servs. v. S.V., 362 N.J. Super. 76, 88 (App. Div. 2003). See also N.J. Div. of
Child Prot. & Permanency v. M.M., 459 N.J. Super. 246, 261-62 (App. Div.
2019) (requiring findings by the trial court addressing KLG as it relates to the
feasibility of adoption and the unequivocal consent of the resource parents to
adoption).
Here, around the time the Division filed the complaint for guardianship, a
case worker went to the resource parents' home and explained the difference
between KLG and adoption. The case worker gave the resource parents
information and paperwork regarding KLG. After reading the KLG documents
and discussing the matter with the Division's case worker, the resource parents
stated they were "committed to adoption."
In October 2018, a different Division case worker visited the resource
home and asked the resource parents again about KLG versus adoption. On that
occasion, the resource parents confirmed they "definitely prefer adoption." In
A-4992-18T4 11 addition, the resource parents told the Division's expert they sought to adopt
Sara because adoption provides more permanency and stability than KLG.
In reviewing the record, we are satisfied Judge Gelade correctly deemed
KLG was not a viable alternative in this case. Here, the resource parents
understood the difference between KLG and adoption and expressed their
unequivocal desire to adopt Sara.
Applying the legal principles governing our review of a decision to
terminate parental rights, we conclude Judge Gelade's factual findings are fully
supported by the record and, in light of those facts, his legal conclusions are
unassailable.
Affirmed.
A-4992-18T4 12