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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2850-15T4
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
L.M.W.,
Defendant-Appellant,
and
J.R., (deceased),
Defendant. ———————————————————————————— IN THE MATTER OF THE GUARDIANSHIP OF J.R., a Minor. ————————————————————————————
Argued September 26, 2017 – Decided October 25, 2017
Before Judges Reisner, Hoffman and Mayer.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FG-19-0019-14.
Anastasia P. Winslow, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Winslow, on the briefs). Victoria A. Galinski, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Galinski, on the brief).
Christopher A. Huling, Designated Counsel, argued the cause for the minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Huling, on the brief).
PER CURIAM
Defendant L.M.W.1 appeals from a February 2, 2016 judgment of
guardianship terminating her parental rights to her five-year-old
son, J.R. The Division of Child Protection and Permanency
(Division) and J.R.'s Law Guardian argue in support of the
judgment.
Defendant's brief raises the following points of argument:
POINT ONE
THE TRIAL COURT ERRED IN FINDING THAT DCPP HAD PROVED ALL FOUR PRONGS OF THE TERMINATION STATUTE BY CLEAR AND CONVINCING EVIDENCE.
(1) The trial court erred in ruling that DCPP proved prong one by clear and convincing evidence.
(2) The trial court erred in ruling that DCPP proved prong two by clear and convincing evidence.
(3) The trial court erred in ruling that DCPP proved prong three by clear and convincing evidence.
(a) The trial court erred in finding there were no alternatives to termination.
1 We use initials and pseudonyms to protect the family's privacy.
2 A-2850-15T4 (4) The trial court erred in ruling that DCPP proved prong four by clear and convincing evidence.
POINT TWO
THE TRIAL COURT ERRED IN TERMINATING L.M.W.'S PARENTAL RIGHTS AS ITS DECISION WAS BASED ON HEARSAY THAT WAS RULED INADMISSIBLE.
POINT THREE
THE TRIAL COURT ERRED IN ADMITTING AND RELYING UPON OPINIONS BY MRS. DEVINE AND DR. CRAIG AS THEY WERE NOT QUALIFIED AS EXPERTS AND THEIR OPINIONS ON L.M.W.'S PARENTING CAPABILITIES WERE NOT RELIABLE (NOT RAISED BELOW).
POINT FOUR
L.M.W. WAS DENIED HER CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL (RAISED PURSUANT TO R. 2:10-6).
A. DCPP records, L.M.W.'s educational records, and witness testimony, not disclosed to the trial court, undermine confidence in the trial court's rulings on all four prongs of the best-interests test.
Following our review of the record, we reject these arguments and
affirm.
I.
We begin with a summary of the standards that guide our
review. Parents have a fundamental right to raise their children,
and that right is constitutionally protected. N.J. Div. of Youth
and Family Servs. v. G.L., 191 N.J. 596, 605 (2007).
"[T]erminations should be granted sparingly and with great caution
because they irretrievably impair imperative constitutionally-
protected liberty interests and scores of centuries of societal
3 A-2850-15T4 family constructs." N.J. Div. of Youth & Family Servs. v. R.G.,
217 N.J. 527, 553 (2014). However, a parent's rights are not
absolute. Ibid. "Because of its parens patriae responsibility,
the State may terminate parental rights if the child is at risk
of serious physical or emotional harm or when necessary to protect
the child's best interests." Id. at 553-54.
In order for the court to terminate parental rights, the
State must satisfy the following prongs of the "best interests of
the child" test with clear and convincing evidence:
(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 [or her] 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 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).]
4 A-2850-15T4 The four prongs "are not discrete and separate; they relate to and
overlap with one another to provide a comprehensive standard that
identifies a child's best interests," with parental fitness being
the crucial issue. In re Guardianship of K.H.O., 161 N.J. 337,
348 (1999). Determinations of parental fitness are very fact
sensitive and require specific evidence. Ibid. Ultimately, "the
purpose of termination is always to effectuate the best interests
of the child, not the punishment of the parent." Id. at 350.
On this appeal, our review of the trial judge's decision is
limited. R.G., supra, 217 N.J. at 552. We are bound to accept
his or her factual findings, as long as they are "supported by
adequate, substantial, and credible evidence." Ibid.
Additionally, we accord her decision particular deference
"[b]ecause of the family courts' special jurisdiction and
expertise in family matters," and because the judge was uniquely
in a position to evaluate the credibility of the witnesses. Cesare
v. Cesare, 154 N.J. 394, 412-13 (1998). However, we review the
trial court's legal interpretations de novo. R.G., supra, 217
N.J. at 552-53.
II.
We next summarize the relevant facts and procedural history
from the record. A child of abusive parents, defendant suffers
from serious cognitive impairments. In 2012, she gave birth to
5 A-2850-15T4 J.R at the age of seventeen. The Division became involved when
J.R. was only four months old, following a domestic violence
incident between defendant and J.R.'s now-deceased father.
On August 28, 2012, the Division filed a verified complaint
and order to show cause for care and supervision of J.R. under
Title Nine, N.J.S.A. 9:6-8.21 to -8.73. The court entered a
consent order the same date granting the Division's application.
On January 18, 2013, the Division filed an amended verified
complaint for custody under Title Nine. The court granted the
Division custody of J.R., finding his removal was required to
avoid ongoing risk to his life, safety or health. In February
2013, doctors diagnosed then one-year-old J.R. with failure to
thrive, resulting in his placement with a non-relative resource
family, where he remains today.
Over the next year, the Division provided defendant with
various services in an effort to reunite defendant with J.R.,
without success. On January 21, 2014, the Division filed a
complaint for guardianship of J.R.; however, on January 26, 2015,
the trial judge dismissed the guardianship complaint and
reinstated the Title Nine action in favor of reunification.
After the court dismissed the guardianship action, concerns
soon arose about defendant's ability to address J.R.'s complicated
medical and emotional needs, following J.R.'s three-year-old well
6 A-2850-15T4 visit with J.R.'s pediatrician, Dr. Krekamey Craig, on February
12, 2015. In preparation for the visit, the case worker gave
defendant, who had never met Dr. Craig, a list of questions to
ask.
Dr. Craig, who had been treating J.R. for approximately two
years, was "sympathetic" to the fact that defendant had not been
J.R.'s primary caretaker and thus tried to use the visit as an
educational opportunity for defendant. Dr. Craig explained to
defendant that J.R.'s most pressing medical condition was his
reactive airway disease, for which he had been hospitalized and
was under the care of a pulmonologist. Dr. Craig listed the
medications that J.R. needed to take on a regular basis to avoid
relapses, what warning signs to look for, and when these symptoms
required emergency treatment. While defendant initially
communicated she understood what she needed to do, upon further
questioning by Dr. Craig, it became clear that she did not.
As a result, Dr. Craig asked defendant to write down the
information so they could review what she needed to do on a regular
and emergency basis. While defendant complied, it was evident to
Dr. Craig she did not understand. Dr. Craig told the caseworker
that she was worried that defendant was not capable of properly
addressing J.R.'s complicated medical and emotional needs. The
caseworker requested Dr. Craig to "write up" her concerns.
7 A-2850-15T4 On the following day, Dr. Craig, who explained she generally
did not "write letters like this," wrote to the Division and
reported that she "was disturbed" by the well visit and had
concerns with defendant's ability to understand J.R.'s medical
needs, particularly his asthma, a life-threatening condition. She
also reported that defendant had not effectively interacted or
disciplined J.R., who needed "continued monitoring" because of his
developmental delays.
Additional concerns arose on February 25, 2015, when
defendant tested positive for marijuana use. Defendant admitted
she had used marijuana about three times a month and had engaged
in underage drinking.
Further concerns regarding defendant's ability to protect
J.R. arose during a February 2015 home visit, when a caseworker
observed J.R. pick up a pocketknife and a lighter that defendant
had left on top of her dresser. That same month, defendant posted
photos on social media, which revealed she had failed to transport
J.R. in a car seat, even though she received specific instructions
to do so.
Moreover, in a report dated March 4, 2015, Dr. Heidi Jacobsen,
defendant's treating clinical psychologist, expressed "significant
concern" about the reunification plan, noting that defendant had
missed four of her five scheduled therapy appointments, had not
8 A-2850-15T4 scheduled transportation with the Division's transportation
provider as she had agreed to do, and had tested positive for
marijuana use. Defendant had also admitted that "in the past she
had hidden [T.C.]2 in [her] closet" when the caseworker came to
her home. Based on this conduct, together with defendant's
inability to understand J.R.'s medications and symptoms, Dr.
Jacobsen recommended termination of defendant's unsupervised
visits and that her contact with J.R. be "fully supervised" to
ensure his safety. Based on these developments, the court issued
an order on March 11, 2015, granting the Division's application
to reinstate the guardianship complaint and to terminate
defendant's unsupervised visitation.
At the guardianship trial, which began on July 28, 2015, the
Division presented testimony from Dr. Jacobsen, Dr. Mark Singer
(the Division's expert psychologist), and two caseworkers. In
addition, the Law Guardian, who supported the Division's position,
presented the testimony of Dr. Leslie Trott, a licensed
psychologist. At the conclusion of the Division's case, the trial
judge sua sponte found the Division had not, at that point, "proved
prong two [N.J.S.A. 30:4C-15.1(a)(2)] by clear and convincing
2 Defendant started dating T.C. in June of 2014. Because he had an open child abuse case with the Division, the court previously entered an order that T.C. "is not to have any contact with [J.R.]."
9 A-2850-15T4 evidence." The judge therefore suspended the guardianship trial
and ordered further services and updated evaluations to determine
whether defendant could progress to the point that "she can meet
minimum standards of parenting."
After these further efforts proved unsuccessful, the
guardianship trial resumed on December 1, 2015, with the Division
presenting further testimony from Dr. Singer and Dr. Jacobsen, and
also defendant's former caseworker, who described photographs of
J.R. and T.C. together that defendant posted on social media. The
Division also called a social worker from J.R.'s school, who agreed
that J.R. needs constant, "one-on-one attention." Dr. Craig,
defendant's current caseworker and one of J.R.'s therapists also
testified. Defendant then testified on her own behalf, but did
not present any other witnesses, expert or otherwise.
After two full days of trial testimony, Judge James A. Farber
issued a comprehensive oral opinion finding that the Division
proved by clear and convincing evidence each of the four prongs
of the best interests standard, N.J.S.A. 30:4C-15.1(a), and
entered a final judgment terminating defendant's parental rights
to J.R.
With regard to prong one, the judge found that the Division
demonstrated that J.R.'s safety had been and will continue to be
endangered by the parental relationship with defendant. While the
10 A-2850-15T4 judge did not attribute any malice to defendant, he found "[h]er
inability to understand basic calls from a child for feeding[,]
and the proper amounts" a child needs to eat, caused J.R.'s
"medical issues." Specifically, he found the record "replete with
information that [J.R.'s] failure to thrive and the domino
consequences of the failure to thrive are directly related and
attributable to [defendant]." The judge further found defendant
caused harm because she failed to respond adequately to J.R.'s
hearing impairment, which triggered his speech and cognitive
delays. The judge concluded that J.R.'s health and development
"were both severely impaired by [defendant's] own cognitive
deficiencies[,] which prevented her from recognizing warning signs
in various arena."
The judge found that this harm will continue because defendant
does not understand J.R.'s medical condition and emotional needs,
citing her inability "to decipher what medications should be
administered in what doses and when." The judge referenced the
findings of Dr. Singer and Dr. Trott describing defendant as
"narcissistic and histrionic;" consequently, she would not place
J.R.'s needs above her own and would overreact to issues impeding
her "already-suspect judgment." While the judge found defendant
can handle "concrete tasks," she cannot "develop or implement an
appropriate plan" to address unexpected issues. The judge further
11 A-2850-15T4 explained,
Again, this child is a special needs child who will have medical issues and educational issues to be addressed periodically and consistently. [Defendant] is quite simply unable to navigate those matters which . . . will endanger [J.R.'s] safety, health, and development. If a co-parent or some other adult is not there, will [J.R.] play with knives, lighters, or matches left accessible to him? What other everyday materials or substances which are poisonous and lethal when ingested will be left available to this child when [defendant's] back is turned?
With regard to prong two, the judge found defendant unable
or unwilling to eliminate the harm facing J.R. and that delaying
placement will add to the harm because J.R. needed permanency.
After three years of therapy, defendant had not corrected the
issues that led to J.R.'s removal — she still could not adequately
provide for J.R.'s medical and emotional needs. Instead, she
"would be quickly overwhelmed" by full-time or part-time parenting
"due to judgment deficits and her difficulty in addressing
additional stressors."
Regarding prong three, the judge found the Division had
provided defendant with reasonable services to further the goal
of reunification, including enhanced supervised visitation,
transportation, therapy, parenting classes, referrals to
residential programs, evaluations, employment and educational
12 A-2850-15T4 training, and assistance with grocery shopping and basic child
care skills. Additionally, the judge considered alternatives to
termination of defendant's parental rights, but all proposed
relatives had been ruled out.
Finally, with regard to prong four, the judge found that
termination of defendant's parental rights will not do more harm
than good. The judge concluded J.R. lacks "a healthy relationship"
with defendant, "who does not provide the nurturance and structure
that [J.R.] demands." The judge further concluded that severing
J.R.'s relationship with defendant "would not cause severe or
enduring harm," but severing his relationship with the resource
parent, who has become his psychological parent, would cause severe
and enduring harm, which defendant "would not be able to mitigate."
As noted, we owe deference to Judge Farber's decision, unless
it was not supported by sufficient credible evidence or was
otherwise "so wide of the mark that a mistake must have been made."
N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 279
(2007) (citation omitted). Having reviewed the record in light
of that standard, we find no basis to disturb the judgment on
appeal. We affirm for the reasons stated by Judge Farber in his
oral opinion issued on February 2, 2016, and for the reasons stated
in this opinion. Defendant's appellate arguments are not supported
13 A-2850-15T4 by the record and are without sufficient merit to warrant
discussion beyond the following comments. R. 2:11-3(e)(1)(E).
Of note, notwithstanding the Division's efforts to provide
defendant with needed services, the experts at trial all agreed
defendant remains incapable of safely parenting J.R., who has his
own special medical and behavioral needs. The experts also agreed
a close bond exists between J.R. and his resource parent, who
wants to adopt, and severing that relationship would cause severe
and enduring harm.
Due to her own serious cognitive impairments, defendant is
barely able to care for herself, much less care for a child with
his own special needs. Defendant's inability to overcome her
cognitive impairments resulted in her son's placement in foster
care, where he remains today. The child has now bonded with his
foster parent, and he would sustain severe harm if he were removed
from her care. His need for a permanent, stable home is paramount,
and termination of defendant's parental rights is in his best
interests.
Finally, we address defendant's argument, raised in her point
IV, that she was denied the effective assistance of counsel,
because her counsel: 1) failed to adequately review the Division's
file; 2) failed to call an expert witness at trial; and 3) failed
to advocate for services consistent with the guidelines set forth
14 A-2850-15T4 by the United States Department of Health and Human Services (HHS)
and the United States Department of Justice (DOJ) to assist state
child welfare agencies in protecting the civil rights of parents
with disabilities. Because the trial court did not consider this
issue, since Rule 2:10-6 provides the issue of ineffective
assistance of counsel "shall be raised in the direct appeal" of
guardianship matters, we address defendant's claims of ineffective
assistance in some detail.
We initially note that defendants are entitled to the
effective assistance of counsel in termination of parental rights
proceedings. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J.
301, 305-07 (2007); N.J.S.A. 30:4C-15.4(a). In order to establish
such a claim, a parent must prove the two-part test established
in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,
2068, 80 L. Ed. 2d 674, 697 (1984), specifically: (1) counsel's
performance was deficient, that is, it was outside the wide range
of reasonable professional assistance; and (2) counsel's
deficiency prejudiced the defense, that is, there is a reasonable
probability that counsel's errors changed the result. B.R., supra,
192 N.J. at 308-09.
Here, appellate counsel argues that trial counsel failed to
inspect the Division's entire file since she found several
documents that were not included as trial exhibits. This claim
15 A-2850-15T4 lacks merit. From our review, even if trial counsel was deficient
in failing to review those documents (as opposed to simply deciding
not to use them), that deficiency would not have changed the result
of this case, because either: 1) the facts contained in the
documents were otherwise admitted into evidence through the
testimony of Division witnesses, or 2) the facts were not relevant
to a material issue.
Appellate counsel next contends that defendant's trial
counsel failed to call Ally Wise, the director of Family Promise,
who would have testified as to various shortcomings with the
Division's educational services. Wise set forth in a certification
that she "did not appreciate the extent of [defendant's]
disability" at the time of her admission because the Division had
failed to disclose that defendant "has a learning disability or
special education needs." Wise claims she did not discover the
"magnitude" of defendant's "learning deficits" until July 2013
(two months after her admission), at which time she requested to
have defendant attend an extensive private GED tutoring program
at a cost of $10,000. The Division denied that request and instead
arranged GED tutoring for defendant's cognitive impairments
through a volunteer organization. Wise claimed that to the best
of her knowledge, the Division "did not at any time recommend or
suggest that [defendant] have services implemented that would
16 A-2850-15T4 accommodate her learning disability."
Here, even if trial counsel was deficient in failing to call
Wise, we discern no basis to conclude the outcome in this case
would have changed. The Division provided defendant with
reasonable educational services to help her obtain her GED and she
ultimately obtained employment. The record contains no credible
evidence to support the claim that additional services to
accommodate defendant's learning disability would have had an
effect on her cognitive disability and her related inability to
adequately provide for J.R.'s serious medical and emotional needs
— the focus in this case.
Appellate counsel also argues that trial counsel was
deficient in deciding not to call Dr. Aventente Tamignini,
defendant's expert psychologist; in failing to call a different
expert with expertise working with cognitively disabled clients;
and in failing to object to Dr. Singer's testimony about the
details of Dr. Tamignini's report. These claims all lack merit.
In an October 10, 2015 report, which was not admitted into
evidence, Dr. Tamignini wrote that although defendant "evidenced
the ability to respond affectionately toward[s her son]," she
"still demonstrates a lack of stability to provide her son with
consistency and continuity. She lacks predictability,
reliability, and judgment to guide and supervise her son." Dr.
17 A-2850-15T4 Tamignini concluded, within a "reasonable degree of psychological
certainty," that although defendant had "a willingness and great
desire to parent her son," she was "not likely to be able to manage
her son's daily challenges." He described J.R. as "an extremely
active, young child who needs constant supervision and
redirection." He found that defendant "was given opportunities
to practice and master the skills of reasonable accepted parenting
but was unable to be consistent and meet the challenges of
parenting [J.R.]." He recommended that given the "strong bonding"
between defendant and J.R., that a "program that allows [defendant]
to keep in contact with [J.R.] is highly suggested." Of note, he
did not recommend full custody for defendant.
On November 6, 2015, trial counsel sent a copy of Dr.
Tamignini's report to Dr. Jacobsen, defendant's therapist, and
represented that he intended "to use this report and Dr. Tamignini
as a witness despite his conclusion. Not using the
report/testimony would result in Judge Farber assuming that my
expert had an even more negative finding."
In an updated report dated November 25, 2015, Dr. Jacobsen
did not discuss Dr. Tamignini's proposal for defendant to have
continued contact with J.R.; instead, Dr. Jacobsen stated
defendant was "insightful regarding the fact that if she were to
regain custody of [J.R.] she would likely find it stressful and
18 A-2850-15T4 overwhelming, she is consistent in stating that she would need
supports in order to regain custody and parent him in the future."
Dr. Jacobsen expressed concern that
the level and duration of the support that [defendant] may need in order to develop the skills to balance her responsibilities for her home, work and parenting responsibilities, to develop a deeper understanding of [J.R.'s] day to day needs, and to increase her emotional resources and social supports may be much more extensive and long-term in duration than is possible or practical for social service agencies to provide. In addition, [defendant] has historically found it difficult to reach out to agencies supporting her when she finds herself overwhelmed, and she instead has become defensive about problems and has looked to unhealthy solutions to cope with her distress.
Meanwhile, defendant's trial counsel wrote the following
cryptic message regarding a November 20, 2015 phone conversation
he had with Dr. Tamignini: "Someone monitor her everyday. Not
testify[.] Not submit report." On November 23, 2015, defendant's
trial counsel confirmed he would not call Dr. Tamignini to testify.
When the guardianship trial resumed in December 2015, Dr.
Singer, who had completed an updated bonding and psychological
evaluation, opined that despite receiving additional time and
services, defendant was still not a viable parent for J.R. While
Dr. Singer mentioned that he had reviewed Dr. Tamignini's
psychological evaluation report, he did not make any further
19 A-2850-15T4 reference to the report, nor did he disclose any of Dr. Tamignini's
opinions. Dr. Singer did testify that he agreed with Dr.
Jacobsen's conclusions as set forth in her updated report above.
We conclude the decision not to call Dr. Tamignini as a
witness was not deficient because, as counsel's note confirmed,
it was not helpful to defendant's case. At best, Dr. Tamignini
appears to have recommended some sort of open adoption by the
resource parent.
We further conclude defendant was not deprived of the
effective assistance of counsel "through the improper use" of Dr.
Tamignini's report. State v. Spencer, 319 N.J. Super. 284 (App.
Div. 1999), as cited by defendant, is distinguishable. In Spencer,
we held that the State's improper cross examination of a defense
expert about the opinion of a prior defense expert who did not
testify at trial and whose opinion was consistent with the State's
expert, "had the clear capacity to unfairly tip the scales in
favor of the State, particularly in light of the prosecutor's
summation[.]" Id. at 300. Unlike Spencer, here a judge, not a
jury, decided the matter under review. Dr. Singer also did not
testify as to the contents of Dr. Tamignini's report, nor did the
judge refer to the report in his opinion. The judge's brief
mention of the report did not change the outcome of this case.
Appellate counsel further argues that trial counsel should
20 A-2850-15T4 have retained a different expert with experience treating
cognitively limited individuals. In support of this argument,
counsel provided a report from Dr. Jeffrey B. Allen, a
psychologist. Counsel contends that Dr. Allen would have testified
that defendant had the capacity to independently parent J.R.
However, Dr. Allen found that in order to do so, defendant would
need services the Division had already provided to no avail,
including instruction in a practical hands-on manner, tutoring
with written instructions, and parenting skills training. Thus
any deficiency would not have changed the outcome of this case.
Lastly, appellate counsel argues that defendant's trial
counsel was deficient in failing to advocate for services to
accommodate defendant's cognitive disability consistent with the
guidelines set forth by HHS and DOJ.3 We disagree.
We have explicitly rejected the argument that the Americans
3 In August 2015 (during the first part of the guardianship trial), HHS and DOJ issued joint technical assistance to guide state and local welfare agencies and courts "to ensure that the welfare of children and families is protected in a manner that also protects the civil rights of parent[.]" United States Department of Health and Human Services, Office for Civil Rights Administration for Children and Families, and United States Department of Justice Civil Rights Division Disability Rights Section, Protecting the Rights of Parents and Prospective Parents with Disabilities: Technical Assistance for State and Local Child Welfare Agencies and Courts under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act 1,1 (Aug. 2015) https://www.hhs.gov/sites/default/files/disability.pdf.
21 A-2850-15T4 with Disabilities Act (ADA), 42 U.S.C.A., §§ 12101 to -12213 (2000)
provides a defense to the termination of a parent's rights. N.J.
Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442
(App. Div. 2001), certif. denied, 171 N.J. 44 (2002). In A.G. we
rejected a parent's argument that the failure to reasonably
accommodate a parent's mental disability amounted to
discrimination under the ADA, reasoning that "to allow the
provisions of the ADA to constitute a defense to a termination
proceeding would improperly elevate the rights of the parent above
those of the child. . . . The fact that A.G. suffers from a mental
disorder should not distract us from determining the best interests
of the child." Ibid.
In any event, even if deficient, the failure to direct the
trial court's attention to this document did not change the outcome
of this case. The record contains ample evidence the Division
provided defendant with services that were directly geared toward
her cognitive limitations, including extensive individual therapy
and instructions on life skills with Dr. Jacobsen, supervised
visitation, parenting classes, and assistance in basic parenting
skills by the Division caseworkers. Defendant's claim she received
ineffective assistance of counsel lacks substantive merit.
Affirmed.
22 A-2850-15T4 23 A-2850-15T4