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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0309-21
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
P.R.,
Defendant,
and
Q.J.,
Defendant-Appellant. ________________________
IN THE MATTER OF THE GUARDIANSHIP OF J.M.R., a minor. ________________________
Submitted September 20, 2022 – Decided October 3, 2022
Before Judges Messano and Rose. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0026-21.
Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the briefs).
Matthew J. Platkin, Acting Attorney General, attorney for respondent (Sookie Bae, Assistant Attorney General, of counsel; Wesley Hanna, 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 C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM
Defendant Q.J. appeals from the Family Part's September 9, 2021 order
terminating his parental rights to his daughter, J.M.R. (Jasmine), who was born
in August 2019.1 Defendant contends the evidence adduced by the Division of
Child Protection and Permanency (the Division) as to each prong of the statutory
best-interests-of-the-child test, N.J.S.A. 30:4C-15.1(a), was insufficient. He
also presents the following three arguments for the first time on appeal: 1)
COVID-19 protocols and Executive Orders affecting in-person visits at the
1 We use initials and pseudonyms pursuant to Rule 1:38-3(d)(12).
A-0309-21 2 Essex County Correctional Facility (ECCF), where defendant was incarcerated
at the time of Jasmine's birth and during the entire guardianship proceedings,
violated his fundamental rights under the United States and New Jersey
Constitutions; 2) the judge "fixat[ed]" on defendant's decision to withdraw his
previously entered guilty plea on the pending criminal charges, thereby
depriving defendant of his due process rights; and 3) his trial counsel provided
ineffective assistance. See N.J. Div. of Youth & Fam. Servs. v. B.R., 192 N.J.
301, 307 (2007) (applying standard adopted in Strickland v. Washington, 466
U.S. 668, 694 (1984), and approved by our Supreme Court in State v. Fritz, 105
N.J. 42, 58 (1987)).
The Division argues the judgment is supported by "overwhelming
evidence" as to all prongs of the statutory best interests standard, and defendant
received effective assistance from counsel.2 Jasmine's Law Guardian also urges
us to affirm the judgment, specifically arguing defendant was not "unfairly
affected" by COVID-19 restrictions, the judge did not penalize defendant for
electing to withdraw his guilty plea, and defendant received effective assistance
of counsel.
2 The Division does not specifically address the other points raised by defendant. A-0309-21 3 Having considered the arguments in light of the record and applicable
legal standards, we affirm.
I.
Clara Maass Medical Center made a referral to the Division the day after
Jasmine's birth, expressing concern over the ability of the child's mother, P.R.
a/k/a/ P.M.R. (Patti), to care for her. Following a psychological evaluation that
confirmed those worries, the Division filed its complaint for care and custody
of Jasmine, and the court granted the request. The Division placed Jasmine with
her maternal aunt and uncle, W.M. and L.M. (the Mercers). Jasmine has lived
with the Mercers ever since, along with her brother, J.R. 3
Patti told the Division defendant was Jasmine's father. The Division
offered defendant the opportunity to take a DNA test to confirm his paternity
when the caseworker first spoke with defendant at the ECCF.4 Defendant
explained he and Patti dated on and off since 2018, and while he was possibly
Jasmine's father, defendant did not think he could father a child. He explained
3 Patti gave birth to J.R. in 2018; defendant is not the child's father. Patti executed an identified surrender of J.R. in favor of the Mercers in a separate, earlier guardianship proceeding. On January 20, 2021, Patti executed an identified surrender of Jasmine to the Mercers. 4 DNA testing confirmed defendant was Jasmine's father in November 2019. A-0309-21 4 that he slept with many women, none of whom ever became pregnant.
Defendant also told the caseworker he did not think he would resume a
relationship with Patti when released and, although he would participate in
services provided by the Division, he did not want visitation with Jasmine at the
jail and would rather wait until his release. Defendant identified his mother as
a placement resource.
Although the judge ordered the Division to facilitate Jasmine's visitation
with defendant at the ECCF, it is undisputed that by March 2020, no visits had
occurred. The judge re-issued an order requiring the Division to "provide make-
up visits for December, January, and February for [defendant] twice per month,"
however, before any visits took place, the ECCF suspended all in-person
visitation because of the COVID-19 pandemic and instead offered each inmate
"free daily [five]-minute phone calls." The judge's June 2020 order noted
defendant was "visiting" Jasmine via phone calls from the ECCF.
In August 2020, with visitation at the ECCF still suspended, the judge
approved the Division's permanency plan of termination followed by adoption.
The judge noted in his order that defendant had been incarcerated since April
A-0309-21 5 2019 on charges of conspiracy and robbery, and "defendant report[ed] he was
sentenced to five years." 5
The judge initially set a trial date for May 4, 2021, which was postponed
when the judge noted defendant refused to enter the van intended to transport
him to court. The guardianship trial took place instead on September 9, 2021.
The Division called two witnesses: Dr. Eric Kirschner, a clinical
psychologist, as its expert; and Division caseworker Jelisa Amparo. Dr.
Kirschner interviewed defendant via Zoom. He was unable to administer
psychological tests because defendant refused to complete the test materials.
Defendant told Dr. Kirschner that he planned to reunite with Patti upon relea se
from custody and start a life together with her and Jasmine. However, defendant
also told the doctor that "he ha[d] three or four females that he [wa]s involved
in some type of relationship with[,] . . . noted . . . they all received social security
benefits and . . . referred to them as his crew." Dr. Kirschner characterized this
as:
there was a very much manipulative sort of deceptive or deceitful quality to it, by all indications it looked to
5 Confusion lingered regarding defendant's pending criminal cases. We explained the charges defendant faced and what occurred in the Criminal Part in our prior opinion affirming the criminal trial judge's December 2020 order permitting defendant to withdraw his guilty pleas. State v. Q.J., No. A-1453-20 (App. Div. July 15, 2021) (slip op. at 2–5). A-0309-21 6 me as though he was really kind of preying on what are presumably vulnerable individuals who are . . . receiving some type of state benefits for whatever reason and there's really just sort of, by all indications, . . . financial gain that they can provide to him.
Dr. Kirschner opined that defendant had "serious and significant
emotional . . . problems," "exhibited highly aggressive and violent behaviors
over a period of time," and defendant's mental health history of bipolar disorder
and antisocial personality disorder, together with defendant's non-compliance
with mental health services, led Dr. Kirschner to conclude defendant was unable
to meet Jasmine's needs. The doctor opined it was unlikely that defendant would
be able to parent in the future and noted defendant and Jasmine have "no
relationship to speak of." Dr. Kirschner said termination of defendant's parental
rights would not do more harm than good, because Jasmine would suffer "no
emotional or psychological trauma or impact" from termination, which would
allow for the child's permanent placement with the Mercers.
Amparo detailed the difficulties in the Division's attempts to facilitate
visitation between defendant and Jasmine and admitted no in-person visitation
had occurred. Amparo attempted to set up a regular time—every Saturday at
10:00 a.m.—for defendant to call the Mercers and speak with Jasmine, but,
according to W.M., defendant never called at the designated time. The judge
A-0309-21 7 asked if defendant ever called; Amparo confirmed the Mercers said, there was
"no contact in February, March, April, May, June, July, August, September
[2020], [and defendant] made no attempts even though it was arranged for him
to make those calls." Amparo said the Mercers intended to adopt Jasmine.
When asked what services the Division provided defendant, Amparo
reiterated the inability to conduct in-person visits, but noted the Division
assessed other relatives as placement alternatives, monitored services provided
to defendant at the ECCF, and provided medication. However, Amparo said
defendant was unable to participate in any services at the jail because of
restrictions in his housing unit and was non-compliant with his medication
regimen.
Amparo confirmed defendant offered his mother and father as possible
placement resources. However, because defendant's mother had an open case
with the Division, she was rejected, and defendant's father said he was unable
to serve because of his work schedule. 6
Defendant did not testify or call any witnesses.
6 The Division did not order a bonding evaluation between defendant and Jasmine because, according to Amparo, "[i]t didn't make . . . sense" since defendant and Jasmine had never met. A-0309-21 8 II.
When the State seeks to terminate parental rights, the Division must prove
by clear and convincing evidence each of the following:
(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;
(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 In re Guardianship of K.H.O., 161 N.J. 337, 347–48 (1999).]
"The focus of a termination-of-parental-rights hearing is the best interests of the
child." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 447 (2012)
(citing N.J. Div. of Youth & Fam. Servs. v. R.D., 207 N.J. 88, 110 (2011)). The
four statutory prongs "are neither discrete nor separate. They overlap to provide
a composite picture of what may be necessary to advance the best interests of
the children." N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 280
A-0309-21 9 (2007) (quoting N.J. Div. of Youth & Fam. Servs. v. F.M., 375 N.J. Super. 235,
258 (App. Div. 2005)).
An order terminating parental rights is enrobed in a double layer of
deference. We defer to the judge's factual findings because he had "the
opportunity to make first-hand credibility judgments about the witnesses . . .
[and] ha[d] a 'feel of the case' that can never be realized by a review of the cold
record." Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting
M.M., 189 N.J. at 293). Secondly, we accord additional deference to the Family
Part's factual findings because of its "special jurisdiction and expertise in family
matters." N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 343 (2010)
(quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
"Only when the trial court's conclusions are so 'clearly mistaken' or 'wide
of the mark' should an appellate court intervene and make its own findings to
ensure that there is not a denial of justice." E.P., 196 N.J. at 104 (quoting N.J.
Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). "However,
'"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," the
traditional scope of review is expanded.'" M.M., 189 N.J. at 279 (quoting In re
Guardianship of J.T., 269 N.J. Super. 172, 188–89 (App. Div. 1993)).
A-0309-21 10 A.
"The first two prongs [of N.J.S.A. 30:4C-15.1(a)] . . . are 'the two
components of the harm requirement' and 'are related to one another.'" N.J. Div.
of Child Prot. & Permanency v. T.D., 454 N.J. Super. 353, 380 (App. Div. 2018)
(quoting In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999)). "Therefore,
'evidence that supports one informs and may support the other as part of the
comprehensive basis for determining the best interests of the child.'" Ibid.
(quoting D.M.H., 161 N.J. at 379). Under the first prong, "the Division must
prove harm that 'threatens the child's health and will likely have continuing
deleterious effects on the child.'" N.J. Dep't of Child. & Fams. v. A.L., 213 N.J.
1, 25 (2013) (quoting K.H.O., 161 N.J. at 352). The Division need not "wait
'until a child is actually irreparably impaired by parental inattention or neglect.'"
F.M., 211 N.J. at 449 (quoting D.M.H., 161 N.J. at 383). Under prong two, "the
inquiry centers on whether the parent is able to remove the danger facing the
child." Id. at 451 (citing K.H.O., 161 N.J. at 352).
As to prong one, in his oral opinion that immediately followed trial, the
judge was "satisfied that [Jasmine] has been and will continue to be harmed by
[defendant's] physical absence, lack of psychological resources to support her
needs for stability, guidance, safety, and nurturance now and in the future." As
A-0309-21 11 to prong two, the judge found defendant made no effort to engage in
rehabilitative services while at the ECCF and was noncompliant with his
medication regimen. Defendant contends his absence from Jasmine's life, due
to his incarceration, did not, alone, satisfy prong one, nor does his continued
incarceration support an inference that he is unwilling or unable to eliminate any
alleged harm.
We agree that incarceration alone is insufficient to prove parental
unfitness or abandonment and terminate parental rights, but incarceration is
indeed "probative of whether the parent is incapable of properly caring for . . .
or has abandoned the child." In re Adoption of Child. by L.A.S. 134 N.J. 127,
136–37 (1993). When dealing with an incarcerated parent, relevant factors to
consider include the nature of the underlying crime leading to the incarceration
and the effect of incarceration on the child, with consideration given to the
parent's attempts to communicate and have a relationship with the child during
their incarceration and the level of concern displayed by the parent as to the
child's well-being. See id. at 143–44. The judge appropriately considered these
factors in detail.
Defendant's reliance on N.J. Div. of Youth & Fam. Servs. v. R.G. is
misplaced. 217 N.J. 527 (2014). There, the Court found that the Division failed
A-0309-21 12 to show by clear and convincing evidence that the defendant's incarceration
caused harm to his daughter, or that he was unwilling to eliminate that harm,
crediting evidence that the defendant "effectively parented" his daughter before
his incarceration and maintained a relationship with her via telephone and letters
even though he only saw her once in six years. Id. at 560–61.
This case is more akin to the facts in N.J. Div. of Youth & Fam. Servs. v.
T.S., 417 N.J. Super. 228 (App. Div. 2010). There, we concluded the Division
had met its burden, given the defendant-father's lack of any relationship with his
daughter, and any harm "could not be ameliorated by visitation or services
because [the defendant] remained incarcerated throughout the litigation." Id. at
243; see also L.A.S., 134 N.J. at 139 (stating "once a parent is imprisoned, a
relationship with one's children that was nonexistent prior to incarceration will
not likely be fostered"). To the extent we have not otherwise addressed them,
defendant's remaining arguments regarding the prong one and two proofs lack
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
B.
N.J.S.A. 30:4C-15.1(a)(3) requires the Division to make "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 to "consider[]
A-0309-21 13 alternatives to termination of parental rights." However, "[e]xperience tells us
that even [the Division's] best efforts may not be sufficient to salvage a parental
relationship." F.M., 211 N.J. at 452. The Court has acknowledged "providing
services to incarcerated persons is difficult and may be futile," but it has
cautioned "the Division should not avoid providing services to all incarcerated
persons, regardless of their seeming unwillingness to improve their parental
fitness." R.G., 217 N.J. at 562.
Defendant contends the judge "exempted" the Division from providing
services because of his incarceration, but this mischaracterizes the judge's
opinion. We acknowledge that the judge's findings on prong three were scant.
He noted the Division performed "psychological evaluations, paternity testing,
assessed relatives for placement, and communicated with the jail social worker
with the possible services," concluding these were reasonable efforts under the
circumstances "focused on assisting [defendant] in rehabilitating himself to
overcome those circumstances that necessitated the placement of [Jasmine] in
foster care." The Division and Law Guardian note that because Jasmine was a
newborn infant, it was impossible for her to verbally communicate with
defendant.
A-0309-21 14 The only service the Division did not provide was in-person visits
between defendant and Jasmine, which could not occur at the ECCF during the
height of the COVID-19 pandemic. The Division bore no fault for defendant's
incarceration, nor could the Division ameliorate the conditions causing
defendant to be continuously incarcerated throughout Jasmine's young life. We
have said that "[e]ven if the Division ha[s] been deficient in the services offered
to" a parent, reversal is not necessarily "warranted, because the best interests of
the child controls[]" the ultimate determination. N.J. Div. of Youth & Fam.
Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div. 2007). This is such a case.
Defendant correctly notes the judge made no mention of prong three's
requirement that the court consider alternatives to termination. However, the
record demonstrates the Division ruled out defendant's mother because she had
an open case with the Division and defendant's father expressed he was unable
to care for the child because of his work schedule. See N.J. Div. of Youth &
Fam. Servs. v. J.S., 433 N.J. Super. 69, 85 (App. Div. 2013) (noting N.J.S.A.
30:4C-12.1(b) grants the Division the authority to "rule out" relatives or friends
whom the agency determines are unable or unwilling to assume care for the child
or with respect to whom placement would not be in the child's best interest). In
sum, the Division's prong three proofs were sufficient.
A-0309-21 15 C.
Prong four "serves as a fail-safe against termination even where the
remaining standards have been met." G.L., 191 N.J. at 609. "The question
ultimately is not whether a biological mother or father is a worthy parent, but
whether a child's interest will best be served by completely terminating the
child's relationship with th[e] parent." E.P., 196 N.J. at 108. Typically, "the
[Division] should offer testimony of a well[-]qualified expert who has had full
opportunity to make a comprehensive, objective, and informed evaluation of the
child's relationship with both the natural parents and the foster parents." F.M.,
211 N.J. at 453 (quoting M.M., 189 N.J. at 281). However, expert testimony is
not required in an instance involving "[a] common sense notion that [a] child
will be more bonded with his [or her resource] parents than with [the]
defendant." N.J. Div. of Youth & Fam. Servs. v. I.S., 202 N.J. 145, 182 (2010).
In this case, the judge found Dr. Kirschner's testimony to be pers uasive,
concluding
[Jasmine] has been in her current resource home with the maternal great aunt and her half-brother . . . since her birth over a year and a half ago.
. . . [T]ermination will permit [Jasmine] to be adopted by the maternal great aunt and thus no harm that may be done for termination of [defendant's] rights will outweigh the good that will come from the child's
A-0309-21 16 continued stability and permanency in a home with her sibling.
The Division met its burden under prong four.
III.
We address defendant's remaining points. He first contends that because
of COVID-19 restrictions at the ECCF, the governor, the Division, and Essex
County "irretrievably impair[ed] imperative constitutionally-protected liberty
interests and scores of centuries of societal family constructs in a discriminatory
fashion." Defendant never made this argument, which appears to be a facial or
as applied constitutional challenge to Executive Orders and regulations, to the
trial judge. There is no record for us to review, and we decline the invitation to
consider such a weighty argument for the first time on appeal. See State v. Witt,
223 N.J. 409, 419 (2015) ("For sound jurisprudential reasons, with few
exceptions, 'our appellate courts will decline to consider questions or issues not
properly presented to the trial court when an opportunity for such a presentation
is available.'" (quoting State v. Robinson, 200 N.J. 1, 20 (2009))).
Defendant next contends, again for the first time, that the judge was
biased. He argues the judge was fixated on defendant's successful withdrawal
of his guilty plea and sought to "strong arm" defendant from proceeding to trial
on the guardianship complaint.
A-0309-21 17 The judge did opine on defendant's decision to withdraw his guilty pleas.
However, taken in context, the judge was accurately explaining the impact
defendant's decision had on the termination proceedings. Defendant asserted he
would be able to take care of Jasmine when released. But, as the judge
accurately noted, given the uncertainty of both the timing and result of
defendant's criminal trials, his decision to withdraw his guilty pleas increased
the uncertainty of when defendant would be released from custody as well as
the length of his incarceration. In a pretrial hearing, the judge told defendant,
"the Division is going to move forward with a trial where they have to prove by
clear and convincing evidence that . . . your parental rights will be terminated. If
. . . they are successful in that, you will have no right to say anything about
where your child goes." The judge wanted defendant to be fully aware of the
alternatives and the effect of choices he was about to make. It was not evidence
of bias.
Lastly, defendant contends trial counsel provided him with ineffect ive
assistance, claiming counsel lacked knowledge of applicable statutes, failed to
object to hearsay testimony the Division introduced through Amparo, and never
challenged the Executive Orders and COVID-19 protocols at the ECCF that
restricted visits with Jasmine.
A-0309-21 18 In adopting the Strickland/Fritz standard, the Court held that to assert a
successful ineffective assistance of counsel claim in guardianship litigation, a
defendant must demonstrate: counsel's performance was objectively deficient—
i.e., it fell outside the broad range of professionally acceptable performance; and
counsel's deficient performance prejudiced defendant—i.e., there is "a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." B.R., 192 N.J. at 307 (quoting
Strickland, 466 U.S. at 694).
As to the first prong, "in addition to being 'highly deferential,' 'a court
must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.'" Id. at 307–08 (quoting Strickland,
466 U.S. at 689). Defendant fails to establish counsel was unaware of applicable
statutes, or that her failure to raise a constitutional challenge demonstrates
deficient performance affecting the outcome. As to the latter, an attorney is not
deficient for failing to raise a losing argument at trial. State v. Echols, 199 N.J.
344, 361 (2009). Defendant fails to demonstrate that the constitutional claims
had any merit.
Defendant broadly claims trial counsel never objected to documentary
evidence admitted at trial even though "th[o]se exhibits were laden with hearsay,
A-0309-21 19 even double and triple hearsay," but he fails to cite which exhibits, much less
whether the judge considered the alleged hearsay and whether its admission
affected the judgment. We acknowledge that trial counsel did not object to
hearsay admitted through Amparo's testimony, specifically the assertion that
defendant never called W.M. to speak with Jasmine for many months. However,
given the overwhelming evidence supporting termination, the exclusion of this
testimony upon timely objection would not have affected the outcome.
Affirmed.
A-0309-21 20