NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.M.D.

Annotate this Case

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1576-09T4

NEW JERSEY DIVISION OF YOUTH AND
FAMILY SERVICES,

Plaintiff-Respondent,

A.M.D.,

Defendant-Appellant.
________________________________

IN THE MATTER OF THE
GUARDIANSHIP OF N.D.L.-D.,

A Minor.
________________________________

Submitted: July 13, 2010 Decided: August 26, 2010

Before Judges R.B. Coleman and C.L. Miniman.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex
County, Docket No. FG-07-292-08.

Yvonne Smith Segars, Public Defender, attor-
ney for appellant (Christine B. Mowry,
Designated Counsel, on the brief).

Paula T. Dow, Attorney General of New Jer-
sey, attorney for respondent (Andrea M.
Silkowitz, Assistant Attorney General, of
counsel; Lisa Rusciano, Deputy Attorney
General, on the brief).

Yvonne Smith Segars, Public Defender, Law
Guardian, attorney for minor N.D.L.-D.

(Nancy E. Scott, Assistant Deputy Public
Defender, on the brief).

PER CURIAM

Defendant A.M.D. (the father) appeals from a Judgment of

Guardianship entered October 13, 2009, in which the trial court

terminated his parental rights to his minor child N.D.L.-D.

(fictitiously, Nakeisha). Because the Division of Youth and

Family Services (the Division) satisfied the four-prong best-

interests standard of N.J.S.A. 30:4C-15.1(a) by clear and

convincing evidence, we affirm.

When Nakeisha was born in August 2001, her mother, N.L.

(the mother), was fifteen years old and the father was seven-

teen. At this time, the Division had been involved in the

mother's life since she was five years old, when a referral was

made in 1990 regarding sexual abuse and other family problems.

At least ten referrals were subsequently made. The father also

experienced difficulties while a minor, having been arrested

four times as a juvenile between October 1999 and September

2001. His first arrest on October 18, 1999, was for receipt of

stolen property; the three subsequent arrests on March 17 and

May 6, 2000, and September 19, 2001, were all on drug-related

charges. After his first arrest, the father was placed in a

diversionary program and the charges were dismissed. The

A-1576-09T4
2

charges related to his second and fourth arrests were also dis-

missed. The father was adjudicated delinquent after the third

arrest, with a sentence of one-year probation and a six-month

suspension of his driver's license.

In May 2001, the Division received a referral from a Family

Part judge informing it that the mother was four months preg-

nant. The judge ordered the Division to find a relative or

residential placement for the mother and to schedule a psycho-

logical evaluation for her. The Division subsequently unsuc-

cessfully attempted to contact three of the mother's maternal

aunts; contacted a fourth maternal aunt, who declined to care

for the mother; contacted the mother's previous caretaker, who

stated it was unlikely the mother could reside in her home; ini-

tiated a referral to Great Expectation, a residential facility

for pregnant teens; and initiated a referral to the Isaiah House

for pregnant teens, where the mother was accepted in June 2001.

The Isaiah House provided the mother with counseling, pre-

natal treatment, parenting skills classes, and a mentor. She

also received a psychological evaluation at the Isaiah House on

June 11, 2001. Following the evaluation, the Division filed a

verified complaint on behalf of the mother against her biologi-

cal parents on June 24, 2001. The whereabouts of the mother's

parents were unknown at the time of the complaint. The Division

A-1576-09T4
3

thus requested an order granting custody, care, and supervision

of the mother to the Division.

The day Nakeisha was born, a worker at the Isaiah House

notified the Division that the mother had gone into labor. The

Division had concerns regarding the mother's ability to parent

her child, because she was possibly using marijuana and was not

going to be permitted to stay at the Isaiah House after giving

birth to Nakeisha. Based on the mother's history, the Division

filed an amended complaint on September 13, 2001, seeking legal

care, custody, and supervision of Nakeisha. The amended com-

plaint named the mother and the father as defendants and was

brought on behalf of the mother and Nakeisha.

At this time, the Division had identified B.P. as a tempo-

rary caretaker for Nakeisha until the mother and the mother's

caretaker, J.A., could relocate into a larger apartment. The

Division also began to assess other relatives as possible place-

ment resources for Nakeisha, including A.G. (her godmother),

V.T. (her maternal great aunt), and her paternal grandparents.

Nakeisha thereafter resided in a Division-approved foster home

in Toms River pursuant to an order to show cause dated September

14, 2001. Only five days later, the father was arrested for the

fourth time on four drug-related charges. As previously

A-1576-09T4
4

mentioned, the charges related to this arrest were dismissed on

January 4, 2002.

The Division was in frequent contact with the mother and

Nakeisha following Nakeisha's birth. In September 2001, the

Division visited the mother at J.A.'s home several times. Dur-

ing one visit, J.A. informed the Division worker that the father

had been recently released from jail. J.A. expressed a

willingness to care for Nakeisha on multiple occasions.

An initial visitation plan was established in October 2001.

The plan was for one-hour bi-weekly visits for Nakeisha with her

parents. A Division worker also met with the mother and the

father on October 4, 2001. During this meeting, the parents

expressed their concerns about J.A. caring for Nakeisha, and the

mother stated her preference that A.G. care for Nakeisha. On

October 16, Nakeisha's paternal grandmother stated she was will-

ing to care for Nakeisha. That same day, A.G. informed the

Division, and the mother confirmed, that the mother was now

staying with her. The first recorded visit occurred on October

9. Both parents attended the visit. On October 11, the Divi-

sion contacted the Newark Renaissance House to secure drug and

alcohol assessments for each parent, but the Division's request

was denied. On October 22, the Division sent letters to the

mother and the father informing them that it had scheduled drug

A-1576-09T4
5

and alcohol assessments on November 13 and 14, respectively.

Another recorded visit occurred on October 25. The parents

"appeared to interact with the child very well."

On November 9, 2001, the father tested positive for mari-

juana; he claimed he was not sure why. He then completed a CADC

assessment. On November 14, a Division worker brought the

mother and the father to the Ocean County office for a visit

with Nakeisha. Both parents "interact[ed] really well with

[Nakeisha]." The next day, the mother appeared in court regard-

ing this case; however, the father did not because he had been

arrested the previous night for a probation violation. The

father did not attend visits on November 28 and December 18,

2001, and January 9 and 23, 2002, although the mother did so.

After the January 23, 2002, visit, the Division worker

spoke with Nakeisha's foster mother regarding allegations that

Nakeisha came to the visits dirty, unkempt, and with scratches

and lumps on her face and head. The foster mother denied the

allegations. The father turned eighteen on February 14, 2002.

A second visitation plan was prepared on February 25, 2002.

This plan changed the location of the visits from Ocean County

to Newark, since Nakeisha had been relocated closer to Newark.

A third visitation plan was negotiated on March 1, 2002.

A-1576-09T4
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On June 14, 2002, the court, with both parents appearing,

entered a permanency order in which it found the Division's per-

manency plan to be appropriate. The father's paternity was

established through a paternity test conducted on July 25, 2002.

The next day, the Division received a referral reporting that

the referrer observed a bite mark on Nakeisha's left thigh and a

black and blue bruise at the top of her vagina. Nakeisha was

placed in a temporary foster home, but no further investigation

of the abuse was apparently conducted.

Between March 1 and September 1, 2002, the father was

arrested at least three times and was thereafter charged in

three indictments with drug-related offenses, including school-

zone and public-housing offenses. Indictment No. 02-07-2766I

was issued in connection with the father's arrest on August 26,

2002. Indictment No. 02-10-3624I was issued in connection with

his arrest on March 8, 2002. Finally, the record on appeal does

not disclose the date on which the father was arrested, but

Indictment No. 02-11-4028I charged him with seven drug offenses

occurring sometime before November 2002.

While this criminal activity was taking place, the father

attended visitation with Nakeisha on July 12, 2002. The visita-

tion log states that both parents nurtured Nakeisha during the

visit and their interaction was good. The father did not attend

A-1576-09T4
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six other scheduled visitations between June 27 and September 6,

2002. The caseworker characterized the frequency of the

father's visits with Nakeisha during this time period as

sporadic and inconsistent.

On August 23, 2002, a permanency hearing was conducted,

during which the Division was ordered to file a complaint for

guardianship within two months. Following this permanency hear-

ing, the Division sent a letter to D.N., Nakeisha's maternal

great aunt, on September 17, 2002, in which it confirmed that

D.N. had expressed her inability to care for Nakeisha or to pro-

vide a permanent plan. On September 18 and 25, the mother

underwent psychological and psychiatric evaluations at the

Division's request.1

On October 24, 2002, the Division filed a complaint against

the mother and the father on behalf of Nakeisha. In the com-

plaint, the Division averred that it had made or attempted to

make reasonable efforts to assist the parents, including: con-

sulting with the mother and the father in developing a plan for

appropriate services; providing court-ordered services to fur-

ther the goal of family reunification; attempting to inform the

parents of Nakeisha's progress; and facilitating visitation.

1
The psychological evaluation was updated on June 12, 2003.

A-1576-09T4
8

The Division also stated it considered alternatives to termina-

tion of parental rights, including placement with relatives. An

order to show cause was entered the same day in which the mother

and the father were ordered to show cause why the court should

not terminate their parental rights to Nakeisha. They were also

required to attend all conferences scheduled in the matter. The

Division's plan for Nakeisha was foster-home adoption by her

then-current caretaker, A.G.

Similar to its letter to D.N., the Division sent a letter

to V.T., Nakeisha's maternal great aunt, on October 30, 2002, in

which the Division confirmed her desire to be excluded from con-

sideration as a relative resource for Nakeisha. The Division

also sent a letter that day to Nakeisha's paternal grandparents,

confirming their desire to be similarly excluded. On December

10, 2002, the Division notified the father that a review of

Nakeisha's placement was scheduled for December 16, 2002, and

invited him to attend. The record does not indicate whether he

did so.

On January 13, 2003, the father pled guilty to certain

counts of each indictment. First, he pled guilty to second-

degree conspiracy to possess and use a controlled dangerous sub-

stance (CDS), contrary to N.J.S.A. 2C:5-2, under Indictment No.

02-07-2766I. Second, he pled guilty to third-degree possession

A-1576-09T4
9

of CDS, contrary to N.J.S.A. 2C:35-10a(1), under Indictment No.

02-10-3624I. Finally, he pled guilty to third-degree possession

of CDS on school property, contrary to N.J.S.A. 2C:35-7, and

third-degree unlawful possession of a weapon, contrary to

N.J.S.A. 2C:39-5d. Presumably, if the father were out on bail,

it would have been revoked at this time.

The next recorded contact occurred on March 25, 2003, when

a Division worker visited A.G.'s home. A.G. reported that

Nakeisha was doing well, was up to date on her immunizations,

and had begun potty training. At this time, the mother was

attending drug treatment three times a week as well as school

and anger management classes.

The father was sentenced in connection with his various

guilty pleas on March 28 and 29, 2003. On Indictment No. 02-07-

2766I, the father was sentenced to a term of three years, which

was to run concurrently with the sentences imposed under the two

other indictments. He received credit for nine days served. On

Indictment No. 02-10-3624I, the father was sentenced to three

years and received credit for fifty-three days time served.

Finally, on Indictment No. 02-11-4028I, the father was sentenced

to three years of which fifteen months were without parole.2 He

2
It is not clear from the record on appeal whether the last two
sentences ran concurrently or consecutively as the record does
(continued)

A-1576-09T4
10

received credit for 220 days time served, suggesting that he had

been in jail continuously since August 20, 2002, on the charges

in connection with this indictment. He was also apparently in

jail for sixty-two days between March 8 and August 20, 2002, in

connection with the first two indictments.

On July 28, 2003, the mother and the father, who was incar-

cerated at the time, made identified surrenders of their paren-

tal rights so that Nakeisha could be adopted by A.G., with whom

she then resided. On that same date, the Division was granted

guardianship of Nakeisha. The litigation was then dismissed on

November 13, 2003, with respect to the mother because she had

turned eighteen.

The father must have been released on parole shortly after

he served fifteen months of the sentence under Indictment No.

02-11-4028I, because on October 26, 2003, he was arrested for an

eighth time, undoubtedly a violation of parole. The charges

again related to drug and weapons offenses, including school-

zone and public-housing offenses. He was indicted under Indict-

ment No. 04-04-1386I in April 2004. He pled guilty on July 19,

2004, to third-degree possession of CDS, contrary to N.J.S.A.

2C:35-10a(1), and third-degree possession of a handgun, contrary

(continued)
not include the judgments of conviction on the second and third
indictments.

A-1576-09T4
11

to N.J.S.A. 2C:39-5b. He was sentenced on October 22, 2004, to

three years in prison with an eighteen-month period of parole

ineligibility. He was given credit for one day time served.

This sentence would have kept the father in jail until at least

April 21, 2006, at which time Nakiesha would have been four

years and eight months old.

The custody litigation remained closed until February 26,

2007, when the court vacated the guardianship of Nakeisha and

reopened the litigation due to A.G.'s indication that she no

longer wished to adopt Nakeisha. On March 27, 2007, the Divi-

sion visited with Nakeisha and A.G. in A.G.'s home. Nakeisha,

who was then five years and eight months old, had been suspended

from school for fighting a schoolmate. Nakeisha wanted to stay

with A.G., but A.G. could no longer handle her bad behavior. A

subsequent visit to V.T.'s home on April 23, 2007, revealed no

concerns about it as a placement. Nakeisha was then placed in

V.T.'s home on May 23, 2007. Shortly thereafter, the caseworker

visited the father at his mother's home in East Orange. The

father did not offer himself as a plan for Nakeisha at that

time, but he did offer his mother as a relative resource.

On June 8, 2007, Dr. Andrew P. Brown, III, conducted psy-

chological evaluations of the mother and the father and bonding

evaluations of each parent with Nakeisha. Regarding the father,

A-1576-09T4
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Dr. Brown reported that the father's scores indicated the pres-

ence of "very high" general and personal self-esteem and "high"

social self-esteem. The father's parental alliance with the

mother was "abnormal." He presented with a "significant history

of anti-social behaviors" resulting in several incarcerations.

He tended "to be defensive and with poor insight," but he "pre-

sented[ed] with[out] any clinical indic[ia] for child endanger-

ment." Although there were no indications that the father was

at risk of endangering Nakeisha's welfare, Dr. Brown recommended

that family reunification not be considered until the father

attended and completed parenting education, demonstrated finan-

cial and residential stability, and remained free of legal

problems.

During the bonding evaluation of the father and Nakeisha,

Dr. Brown observed no indications that Nakeisha was uncomfort-

able with her father. Rather, Nakeisha demonstrated "the pres-

ence of a positive relationship and even attachment with her

natural father." However, she expressed a preference to live

with her mother if she had to choose between her parents. Dr.

Brown advised that Nakeisha continue her relationship with her

father, and while she was not bonded to him, it was likely that

she would have an adjustment-related reaction if the father's

parental rights were terminated. Dr. Brown did not perceive the

A-1576-09T4
13

father to be a significant threat to Nakeisha's welfare. He

concluded that there was "a strong likelihood that with sus-

tained visitation, [Nakeisha] will gradually incorporate a[n]

internal working model of attachment derived from positive

aspects of her father's personality."

A Division worker visited Nakeisha at V.T.'s home on June

15, 2007. The worker reiterated that neither the mother nor the

father was permitted to have unsupervised visits with Nakeisha

at that time. During the next monthly visit on July 30, 2007,

V.T. informed the Division worker that Nakeisha was fighting

with other children at summer camp; while at home, Nakeisha was

"good for the most part but she can behave like [a] brat at

times when she [does] not get her way." Nakeisha was also act-

ing out sexually. The worker told V.T. that she had not been

previously made aware of any sexual behavior, but she would

refer Nakeisha to therapy to deal with her aggressive sexual and

physical behavior.

Subsequently, the father was held in default for failing to

appear in court, although the mother did contest the action.

The Division then filed a verified complaint on July 31, 2007,

against the mother and the father requesting an order continuing

custody of Nakeisha with the Division. The next day, with both

parents appearing, an order was entered continuing Nakeisha in

A-1576-09T4
14

the custody, care, and supervision of the Division and

appointing a Law Guardian.

The monthly August visit revealed continued concerns

regarding Nakeisha acting out sexually. The worker indicated to

V.T. at this time that Nakeisha's behavior was demonstrative of

a sexually abused child. On September 19, 2007, the Division

worker visited V.T. and Nakeisha and informed V.T. that the

mother had to comply with the Division's recommendations before

Nakeisha could be placed with the mother.

During the monthly visit on October 22, 2007, V.T. informed

the worker that she had completed Pride classes, which helped

her deal with Nakeisha's issues. V.T. also reported to the

worker that Nakeisha had been urinating on herself. Nothing

remarkable occurred during the November, December, and January

visits, although Nakeisha's behavior was beginning to improve.

After testing positive for marijuana on September 5, 2007,

the father was referred for a substance-abuse assessment on

December 5, 2007, which he attended. It was recommended that he

thereafter receive outpatient treatment at Integrity House, but

he did not do so. The mother and the father were also both

referred to a parenting skills group on December 5 to learn how

to deal with Nakeisha's behavioral issues. Similar to his

A-1576-09T4
15

visitations in 2001 and 2002, the father's visits with Nakeisha

starting in 2007 were "inconsistent" and "sporadic."

Dr. Ronald W. Crampton conducted a psychiatric evaluation

of Nakeisha on January 10, 2008. Dr. Crampton diagnosed Nakei-

sha on Axis I with anxiety disorder NOS, depressive disorder

NOS, disruptive behavior disorder NOS, oppositional defiant dis-

order, enuresis, and encopresis. Dr. Crampton deferred diagnosis

on Axis II, reached no diagnosis on Axis III, and diagnosed mul-

tiple psychosocial factors on Axis IV. Addressing concerns that

Nakeisha was "sexually acting out," Dr. Crampton recommended the

Division confer with Nakeisha's psychiatrist at Catholic Commu-

nity Charities, where she had been receiving services since

August 14, 2007, and seek additional recommendations. He

"strongly recommended" that placement of Nakeisha with her par-

ents not be implemented until they submitted to court-ordered,

comprehensive, psychiatric evaluations. Finally, he recommended

that the supervised visitation arrangement be carefully reviewed

to ensure the plan was in Nakeisha's best interest.

On January 31, 2008, the court, with the mother but not the

father appearing, entered a permanency order in which it found

the Division's plan of reunification concurrent with a plan of

termination of parental rights to be appropriate. A multi-pur-

pose order entered the same day continued custody, care, and

A-1576-09T4
16

supervision of Nakeisha with the Division; ordered the mother

and the father to undergo substance-abuse evaluations, submit to

random urine screenings, and attend counseling and parenting

skills training; and permitted the mother and father to have bi-

weekly supervised visits with Nakeisha. One week later, the

court entered an amended permanency order, this time finding the

Division's plan for termination of parental rights to be inap-

propriate because the mother needed additional time to comply

with services.

Also on January 31, 2008, the father received a letter from

Essex County College, WISE Women's Center (the Center), inform-

ing him that he and Nakeisha had been accepted into the Center's

eight-week parenting skills training program. The Center then

notified the father on March 8, 2008, that since he had not

attended any parenting skills training classes since February

21, 2008, he would have to attend class by March 13, 2008, or

would need to be re-registered. On April 14, 2008, the father

received an absence notice stating that he had not attended

class on February 14, February 28, March 6, and March 27, 2008.

He was permitted to make up the missed classes, but he did not

do so. The caseworker was unsure whether he completed the

course, but the father never provided the Division with any

documentation of completion.

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During the February 26, 2008, monthly visit, V.T. and the

worker discussed the progress of the mother and the father.

V.T. told the worker that the father arrived late to his parent-

ing skills classes and the mother did not attend at all. V.T.

wanted to attend the next court hearing in April so that she

could inform the judge of her desire to adopt Nakeisha.

The father was arrested a ninth time on March 2, 2008, and

a tenth time on May 18, 2008, both times on a charge of simple

assault. Both times the charge was dismissed. His eleventh

arrest occurred on June 5, 2008; the charge of certain persons

not to have weapons was later dismissed. The next day, he was

arrested for a twelfth time on multiple weapons charges.

Although the charges were eventually no billed, the father was

incarcerated from the time of his last arrest until he was

released on December 24, 2008. While he was in jail in 2008,

the father inquired within the facility about being transferred

to court for any hearings in this matter; however, he did not

contact the Division or attempt to do so.

On June 18, 2008, the Division filed another complaint and

order to show cause, this time seeking termination of the

mother's and the father's parental rights to Nakeisha, who was

almost seven at this time. The whereabouts of the father were

unknown to the Division, as he did not maintain consistent

A-1576-09T4
18

contact with the it. The Division later learned that the father

was incarcerated at this time. The Division verified in its

complaint that Nakeisha resided with V.T. in a Division-approved

foster home. The Division had placed Nakeisha with V.T. after

A.G. indicated she no longer wished to adopt her. The Division

averred that all other relatives were either unable to care for

Nakeisha or placement with them was determined to not be in

Nakeisha's best interests. The Division's plan was for foster-

home adoption by V.T.

The Division worker visited V.T. and Nakeisha for a monthly

visit on October 27, 2008. During the visit, V.T. told the

worker that she had submitted all the needed documents to have

her home approved. Nakeisha's behavior was continuing to

improve, although she still got in trouble occasionally at

school. Nakeisha informed the worker that she enjoyed living in

V.T.'s home. Nothing remarkable was recorded regarding the

November 18, 2008, January 30, 2009, March 26, 2009, and April

23, 2009, visits, other than the worker keeping V.T. informed of

the status of the litigation.

The Division reestablished contact with the father at a

court hearing on February 19, 2009. He offered himself as a

placement for Nakeisha the same month. On March 20, 2009, the

Division notified the father that a psychological and bonding

A-1576-09T4
19

evaluation was scheduled for six days later. He missed the

evaluation because he did not receive the notice of it. The

mother surrendered her parental rights on March 30, 2009, for an

identified adoption, and the father was ordered to have super-

vised visitation at V.T.'s discretion. The father's evaluation

was rescheduled for May 18, 2009, which he missed because he

thought it was scheduled for another day. It was rescheduled

for June 15, 2009.

During a monthly visit with V.T. and Nakeisha on May 19,

2009, V.T. told the worker that the father had not visited

Nakeisha in weeks. She "told the worker that [the father] knows

he is allowed to visit [Nakeisha] but he never does." Nakei-

sha's behavior was continuing to improve as a result of therapy

sessions. On May 28, 2009, the court ordered the father's visi-

tations with Nakeisha to occur at the Division office, because

the father said he was unable to come to an agreement with V.T.

on visitation. This court order required the father to confirm

visits twenty-four hours in advance. On June 3, 2009, the Divi-

sion called the father to schedule a visit between him and

Nakeisha; when he did not answer, a message was left. On June

9, 2009, the Division sent the father a letter referencing the

court order. The Division had been unable to reach the father

by phone the same day because the number was not in service; it

A-1576-09T4
20

requested he contact the Division as soon as possible to estab-

lish a visitation schedule. The father then visited Nakeisha on

June 19, 2009.

Dr. Barry A. Katz conducted a psychological evaluation of

the father and a bonding evaluation of Nakeisha with the father

on June 15, 2009. He had previously conducted a bonding evalua-

tion of Nakeisha with V.T. on January 27, 2009. He testified

regarding these evaluations during the ensuing trial. During

the bonding evaluation, Nakeisha called her father "Daddy" and

said she sees him frequently. She did not want to move from

V.T.'s house to live with her father, but did want to continue

visits with him.

During his psychological evaluation, the father said he was

last arrested in 2003, which was not true, and returned home in

2006 after serving three years in prison. He said he had been

arrested two or three times as a juvenile, rather than four, and

an additional two or three times as an adult for distribution of

CDS, rather than seven additional arrests. He admitted to using

marijuana daily in 2003 and once every two months after his

release, although during the trial, he claimed he had not used

marijuana in over six months. He confirmed that he executed an

identified surrender to Nakeisha in 2003 "because he was in jail

at that time and felt that it was the best thing to do." The

A-1576-09T4
21

father acknowledged the infrequency and irregularity of his vis-

its with Nakeisha from 2001 to 2003 and since 2007. While his

mental-status examination revealed no major psychopathy, it did

reveal a history of substance abuse, incarceration, and other

criminal activity.

At this time, the father resided both at his mother's home

and at the home of the mother of one of his other two children.

The doctor opined the father's lack of a stable residence indi-

cated his inability to provide the stable residence a child like

Nakeisha needs. Additionally, the father was unemployed, having

last worked in March 2008. He was collecting un-employment bene-

fits while studying business administration management at Berke-

ley College in Newark. He wanted to be a part of Nakeisha's

life and care for her on a full-time basis as her custodian. He

also wanted her "to know win, lose or draw that her father did

not back down or ever give up on her." He planned on having

Nakeisha live with him, his son, and his son's mother, even

though he did not live there full-time and his son's mother was

not involved in Nakeisha's life. The father did not take any

responsibility for his involvement with the Division or the

length of time Nakeisha was in foster care.

The bonding evaluation results indicated that the father

had an "extensive history of instability, antisocial behavior,

A-1576-09T4
22

parenting deficits, rapidly shifting and shallow emotion and

difficulty in understanding the needs of [Nakeisha]." The

father's inconsistent visits "continue[d] to pose a risk of harm

to [Nakeisha's] ongoing development and functioning." Nakei-

sha's feelings of abandonment and loss were "exacerbated by con-

tinued and repeated abandonments on the part of [the father]

toward [Nakeisha]." While the father met some of Nakeisha's

needs during the bonding evaluation, he demonstrated an inabil-

ity to meet Nakeisha's parenting needs throughout her life, and

he had severe parenting deficits. He had no understanding of

how his inconsistent visits and contact caused Nakeisha harm.

His strong desire to remain a part of Nakeisha's life did not

match his actual behavior, and he had become a destabilizing

force in her life. He had "no understanding of [Nakeisha's]

need for stability" and was "inconsistent in meeting [Nakei-

sha's] needs." These inconsistencies and failures to comply

with recommendations contradicted the father's expressed desires

to care for Nakeisha, and they had negative effects on Nakeisha

and her functioning.

Overall, Dr. Katz found that the father "cannot parent

[Nakeisha] at the current time, or in the foreseeable future,"

and his prognosis for the father's ability as a parent was

"extremely poor." The father's psychological functioning and

A-1576-09T4
23

ability to parent Nakeisha was "[i]mpaired." Dr. Katz con-

cluded, "It would be highly unlikely for [the father] to be able

to develop stability for [Nakeisha] or to meet her needs as a

parent. [The father's] parenting deficits are chronic in nature

and show no signs [o]f remitting at the present time or in the

foreseeable future." Nakeisha would not suffer harm from the

termination of the father's parental rights, but she would suf-

fer harm if removed from V.T., including "complete and utter

destruction of [her] feelings of stability, ability to bond, and

would be a trauma to which [she] would likely never recover."

Dr. Katz agreed without hesitation with the Division's goal of

terminating the father's parental rights.

Regarding the bonding evaluation of V.T. and Nakeisha, Dr.

Katz concluded that Nakeisha had a strong bond with V.T. and

viewed her as her psychological parent. Nakeisha would be put

at "great risk for severe and ongoing emotional and behavioral

dysfunction if she were to be removed from her current place-

ment." Terminating the father's parental rights would not do

more harm than good, and if Nakeisha's current placement were

disrupted, she would suffer trauma from which she likely would

not recover, causing her significant and permanent harm.

In a monthly summary covering June 2009 prepared by Nakei-

sha's Catholic Charities clinician, the clinician recounted

A-1576-09T4
24

Nakeisha's discussion of her family. Regarding her father, she

said that she had not seen him in some time but hoped she would

see him on her birthday. She enjoyed living with V.T. but would

like to live with her mother. She appeared to be confused about

her placement and permanency plan. The clinician indicated that

past reports showed Nakeisha had increased instances of acting

out, enuresis, and encopresis when she feared that her placement

would change. The caseworker confirmed that while Nakeisha's

behavior improved after living with V.T., it declined when vis-

its with the father restarted, and she began urinating on her-

self. The Division believed that relative adoption by V.T. at

this time was the best plan for Nakeisha, because it was perma-

nent and stable and offered Nakeisha an opportunity to have all

her needs met, whereas the father was not stable, inconsistent

with visitation, and unable to provide a permanent plan for

Nakeisha and her special needs.

On July 8, 2009, a Division worker entered a contact sheet

detailing her contact with Nakeisha following a bonding evalua-

tion with the father on June 15. Nakeisha said she had been

happy to see her father, and she was fine with seeing him every

two weeks in the worker's office. On June 25, 2009, the father

rescheduled his visit with Nakeisha for July 2, 2009, without a

reason. When the father showed up for the visit on July 2, he

A-1576-09T4
25

was informed that Nakeisha was not produced because he had not

given the office twenty-four-hour notice. A makeup visit was

scheduled for July 9, 2009. On July 8, the worker attempted to

confirm the visit for the next day; she was unable to do so

"because [the father] did not have minutes on his phone." The

father did not confirm the appointment, nor did he appear for

the visit the next day. The same sequence of events occurred

two weeks later on July 22 and 23. The caseworker later met

with the father on July 31, 2009, at which time he planned for

Nakeisha to live with him, although he lived with the mother of

his son and was unemployed. A successful visit occurred on

August 3, 2009.

The termination case against the father then proceeded to

trial on August 4 and 10 and September 1, 2009. After the case-

worker and Dr. Katz testified to the facts discussed above, the

father testified on his own behalf. He testified that he tried

to call Nakeisha every day, but he would be given various rea-

sons why she was not available to talk. He was unemployed at

the time of trial but had applied for several jobs. The father

explained his incarceration from 2003 to 2006 was for possession

of CDS with intent to distribute and a violation of parole.

This was a product of "bad decision-making." Regarding his

plans for Nakeisha, the father said he would "be the father that

A-1576-09T4
26

[he is] supposed to be" by finding a job, spending more time

with her, and relying on his support system, including his girl-

friend with whom he was then living. He testified that he com-

pleted a drug treatment program and attended parenting skills

classes, but he was not sure when. He was concerned with Nakei-

sha's current placement because the mother's family allegedly

had a history of sexual abuse. He testified he asked about kin-

ship legal guardianship (KLG), and even though he was told it

was not possible, he would consider it because he "would still

have [his] parental rights."

The trial judge issued a written decision on October 13,

2009, which she read into the record that day. The judge ulti-

mately found the Division had met its burden under the four-

prong test of N.J.S.A. 30:4C-15.1 and terminated the parental

rights of the father to Nakeisha. This appeal followed.

II.

The scope of review of a trial judge's termination of

parental rights is limited. N.J. Div. of Youth & Family Servs.

v. M.M.,
189 N.J. 261, 278 (2007). The trial judge's findings

of fact may not be disturbed unless they are "so manifestly

unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of jus-

Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65
tice."

A-1576-09T4

27 N.J. 474, 483-84 (1974); see also N.J. Div. of Youth & Family

Servs. v. P.P.,
180 N.J. 494, 511 (2004). "A reviewing court

should uphold the factual findings undergirding the trial

court's decision if they are supported by 'adequate, substantial

M.M., supra, 189 N.J. at
and credible evidence' on the record."

279 (quoting In re Guardianship of J.T.,
269 N.J. Super. 172,

188 (App. Div. 1993)).

As a general rule, we should also defer to the trial

Deference to such
court's credibility determinations. Ibid.

determinations is appropriate because the trial judge has a feel

for the case and "the opportunity to make first-hand credibility

judgments about the witnesses who appear on the stand." N.J.

Div. of Youth & Family Servs. v. E.P.,
196 N.J. 88, 104 (2008).

Yet, "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

J.T., supra,
269 N.J. Super. at 188-89
review is expanded."

(internal quotations omitted). Deference is still appropriate

even in that circumstance "unless the trial court's findings

'went so wide of the mark that a mistake must have been made.'"

M.M., supra,
189 N.J. at 279 (quoting C.B. Snyder Realty, Inc.

v. BMW of N. Am., Inc.,
233 N.J. Super. 65, 69 (App. Div.), cer-

tif. denied,
117 N.J. 165 (1989)). However, the trial judge's

A-1576-09T4
28

legal conclusions and the application of those conclusions to

the facts are subject to plenary review. Manalapan Realty, L.P.

v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995).

III.

Parents have a constitutionally protected right to enjoy a

relationship with their children. N.J. Div. of Youth & Family

Servs. v. E.P.,
196 N.J. 88, 102 (2008); In re Guardianship of

K.H.O.,
161 N.J. 337, 346 (1999). Strict standards have consis-

tently been imposed on the termination of parental rights.

K.H.O., supra,
161 N.J. at 347. To balance these constitutional

rights against potential harm to the child when applying for

guardianship, the Division must institute "a termination pro-

ceeding when such action would be in the best interest of the

N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J.
child."

546, 557 (1994). The burden of proof is on the State to estab-

E.P., supra,
lish its case by clear and convincing evidence.

196 N.J. at 103; K.M., supra,
136 N.J. at 557 (citing In re

Guardianship of J.C.,
129 N.J. 1, 10 (1992)).

The best-interests standard was first articulated by the

Supreme Court in New Jersey Division of Youth & Family Services

v. A.W.,
103 N.J. 591, 604-12 (1986). The Legislature subse-

quently amended Title 30 in 1991 to conform with the court's

codifying the standard at N.J.S.A. 30:4C-
holding in A.W.,

A-1576-09T4
29

15.1(a). See L. 1991, c. 275, § 7. The statute provides that

the Division must prove:

(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 separat-
ing the child from his resource family par-
ents 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 par-
ent 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 P.P., supra,
180 N.J. at 511 ("On appeal, a reviewing

court must determine whether a trial court's decision in respect

of termination of parental rights was based on clear and

convincing evidence supported by the record before the court.").

These four factors are not independent of each other;

rather, they are "interrelated and overlapping . . . designed to

identify and assess what may be necessary to promote and protect

the best interests of the child." State Div. of Youth & Family

A-1576-09T4
30

Servs. v. R.L.,
388 N.J. Super. 81, 88 (App. Div. 2006) (cita-

tion omitted), certif. denied,
190 N.J. 257 (2007). Application

of the test is "extremely fact sensitive" requiring "particular-

ized evidence that addresses the specific circumstances of the

individual case." Ibid.

IV.

The father limits his arguments on appeal to the second and

third prongs of N.J.S.A. 30:4C-15.1(a) and to issues regarding

KLG. By not briefing any issue regarding prongs one and four of

N.J.S.A. 30:4C-15.1(a), the father has waived any challenge to

those issues. Pressler, Current N.J. Court Rules, comment 4 on

R. 2:6-2 (2010); see also W.H. Indus., Inc. v. Fundicao Bal-

ancins, Ltda,
397 N.J. Super. 455, 459 (App. Div. 2008) (issue

not briefed by the appellant was deemed waived). The following

analysis is thus limited to a discussion of the father's chal-

lenges to prongs two and three of N.J.S.A. 30:4C-15.1(a) and the

father's argument regarding KLG.

The father argues that the Division did not prove the sec-

ond prong of N.J.S.A. 30:4C-15.1(a) by clear and convincing evi-

dence. He contends that the testimony of the caseworker was not

clear and convincing because she admitted to not ascertaining

whether the father completed parenting skills and drug-

A-1576-09T4
31

counseling programs. The father also takes issue with the case-

worker's statement regarding his living situation and the find-

ing that he was financially unstable. He urges that Dr. Katz's

evaluations "are bounded by hedge words" and do not actually

state that he is unfit. Finally, the father claims that he was

wrongfully identified as the cause of Nakeisha's emotional prob-

lems in that neither the trial judge nor Dr. Katz considered

whether the case involved sexual abuse.

The Division and the Law Guardian respond that the father

is unable or unwilling to provide a safe home for Nakeisha.

They note that the father gave four different home addresses to

the Division; did not produce any certification that he had com-

pleted the drug or counseling programs; tested positive for

marijuana throughout this litigation; and had not explained his

"evasion of financial responsibility for [Nakeisha's] care and

well-being." The Law Guardian points out that the psychological

and bonding evaluations show that the father has no plan to pro-

tect Nakeisha from harm and arguments to the contrary are unsup-

ported by the evidence. Citing the father's inconsistent vis-

its, their traumatic effect on Nakeisha, and noncompliance with

services and recommendations, they both argue the father is

unable to parent Nakeisha now or in the foreseeable future.

A-1576-09T4
32

After initially finding the caseworker to be credible and

the father not credible, the trial judge, in addressing N.J.S.A.

30:4C-15.1(a)(2), found that the father had not cured the ini-

tial harm that endangered Nakeisha's well-being despite having

been given multiple chances and various services. He did not

follow the recommendations of Dr. Brown, including completing

parenting skills classes, achieving financial stability, and

securing stable residency. The judge found the father had

unstable housing, rejecting his contention that he lived with

the mother of his son since December 2008, because he did not

inform Dr. Katz of that address in June 2009 or the Division

until the end of July 2009. The judge noted that the father was

"unable or unwilling to visit with [Nakeisha] on a consistent

basis throughout these proceedings," which had a traumatic

effect on her. Finally, the judge determined that delaying per-

manency would add to Nakeisha's harm and the father cannot pro-

vide her with permanency because, according to the unrebutted

testimony of Dr. Katz, he is unable to parent Nakeisha, he does

not have residential stability, and he has not complied with the

services Dr. Brown found to be necessary for a reunification.

The judge thus found the Division satisfied N.J.S.A. 30:4C-

15.1(a)(2) by clear and convincing evidence.

A-1576-09T4
33

Under the second prong of the best-interests standard, the

Division must prove by clear and convincing evidence that "[t]he

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." N.J.S.A. 30:4C-15.1(a)(2). This harm includes

"evidence that separating the child from his resource family

parents would cause serious and enduring emotional or psycho-

This prong focuses on paren-
logical harm to the child." Ibid.

tal unfitness. In re Guardianship of D.M.H.,
161 N.J. 365, 378-

79 (1999). It may be satisfied by "indications of parental

dereliction and irresponsibility, . . . the inability to provide

a stable and protective home, the withholding of parental atten-

tion and care, and the diversion of family resources in order to

support a drug habit, with the resultant neglect and lack of

K.H.O., supra,
161 N.J. at 353.
nurture for the child."

Here, the trial judge's findings of fact are supported by

adequate, substantial, and credible evidence in the record. The

father did not complete parenting skills classes, as evidenced

by the absence notices he received and the caseworker's testi-

mony. He did not achieve financial or residential stability, as

he was unemployed at the time of trial and gave multiple

responses regarding his current residence. Multiple missed

A-1576-09T4
34

visits were recorded in the contact sheets, and the caseworker

recounted the father's inconsistent visitation at trial. Fur-

thermore, the trial judge's finding that these missed visits had

a traumatic effect on Nakeisha was consistent with Dr. Katz's

unrebutted report and testimony. Finally, the finding that

delaying permanency would add to Nakeisha's harm is supported by

Dr. Brown's and Dr. Katz's reports, as well as by testimony that

the father was a destabilizing force in Nakeisha's life who

could not appropriately parent Nakeisha at the time of trial or

in the foreseeable future. In short, the trial judge's findings

on prong two should not be disturbed.

Additional evidence in the record further shows that the

Division met its burden under the second prong of N.J.S.A.

30:4C-15.1(a). First, the father's multiple incarcerations

after Nakeisha's birth show an unwillingness on his part to

eliminate any harm facing Nakeisha. While incarceration alone

is insufficient to terminate his parental rights, the father's

"lengthy incarceration is a material factor that bears on

whether [his] parental rights should be terminated," and it is

important to examine "all the circumstances bearing on incar-

ceration and criminality," including their significance to

In re Adoption of Children by L.A.S., 134
parental unfitness.

N.J. 127, 136-37, 143 (1993). The father's multiple

A-1576-09T4
35

incarcerations support a finding that he was unwilling to parent

Nakeisha and to assist in eliminating the harm facing Nakeisha,

including her behavioral issues. Similarly, the father showed

his unwillingness to eliminate the harm facing Nakeisha when he

did not offer himself as a placement for Nakeisha in 2007 after

the litigation was reopened. If he had been willing to elimi-

nate the harm, he would have offered himself as a placement.

Instead, he offered his parents.

Second, the Division proved the father was unwilling to

provide a safe and stable home for Nakeisha. Foremost, the

father was unwilling in 2007 to provide a home for Nakeisha,

instead offering his parents as a placement. He did not com-

plete parenting skills classes, which certainly would have

allowed him to create a more stable environment for Nakeisha.

His inconsistent visits further showed his instability. The

father admitted at trial that he was unemployed. His employment

prospects and living situation were tenuous at best. According

to the unrebutted report and testimony of Dr. Katz, the father

had an "extensive history of instability" and was a destabiliz-

ing force in Nakeisha's life. Thus, the Division proved that

the father was clearly unable and unwilling to provide a safe

and stable home for Nakeisha.

A-1576-09T4
36

Finally, Dr. Katz's report and testimony clearly support a

finding that delaying permanent placement of Nakeisha with V.T.

would add to the harm. The father's "continued and related

abandonments" of Nakeisha exacerbated her feelings of abandon-

ment and loss. Moreover, separating Nakeisha from V.T. would

cause her harm, including "complete and utter destruction of her

feelings of stability, ability to bond, and would be a trauma to

which [she] would likely never recover." Lastly, Nakeisha had a

strong bond with V.T. and removing her from V.T. would place her

at great risk of "severe and ongoing emotional behavioral dys-

function" and cause her to suffer trauma from which she likely

would not recover. Clearly, this unrebutted evidence proves

that delaying permanent placement of Nakeisha with V.T. will add

to her harm.3 In sum, the Division proved the second prong of

N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence, and the

trial judge's findings on this issue should not be disturbed.

The father next argues that the Division did not prove

N.J.S.A. 30:4C-15.1(a)(3), because it "offered only an initial

psychological and bonding evaluation, a parental skills program,

3
We are not here concerned with events occurring after the
termination of the father's parental rights. Those events are
or will be the subject of an application by the Division before
the Family Part judge.

A-1576-09T4
37

and a drug counseling program." The father contends that the

Division should have exerted more effort in attempting to locate

him while he was in prison. He also asserts that the trial

judge erred in imputing to him services offered to the mother.

Finally, the father disputes that alternatives to termination of

parental rights were considered, although he does not point to

specific individuals who should have been considered as

alternatives.

The father further argues that the judge plainly erred in

considering KLG only under N.J.S.A. 3B:12A-6(d) and not under 42

U.S.C.A. § 673(d)(3). He urges that the Fostering Connections

to Success and Increasing Adoptions Act of 2008 (the Act)4 pre-

sents a change in Congressional philosophy as to what is in a

child's best interests regarding adoption and KLG. The father

posits that the statute contemplates adoption as not necessarily

establishing permanency and the failure of the Division to pur-

sue KLG is a disservice to potential guardians and adopted

children.

The father's final argument regarding alternatives to ter-

mination posits that the Division did not fulfill its obligation

under N.J.S.A. 30:4C-91. He states that the Division never

4
The Fostering Connections to Success and Increasing Adoptions
Act of 2008 amended the Adoption and Safe Families Act, 42
U.S.C.A. §§ 620-679.

A-1576-09T4
38

explained KLG to V.T. and that only adoption was being consid-

ered. He asserts that "we do not know whether [V.T.] expressed

an interest in adopting [Nakeisha]" because there was no other

permanency plan; had the Division fulfilled its obligations,

V.T. might have preferred KLG. Similarly, the father speculates

that "we do not know that [V.T.] will, in fact, adopt [Nakei-

sha]," apparently because A.G. did not adopt her previously and

that situation may occur again with V.T.5 The father concludes

that KLG "should have been the alternative to termination of

[his] parental rights."

The Division claims that the judge considered alternatives

to termination. The Division lists the services it offered the

parents, including substance-abuse assessments and treatment,

case planning, evaluations to assist in planning and parenting

skills, and visitation. The Division contends that the father

"did not comply sufficiently, if at all" with the offered ser-

vices, making reunification with Nakeisha impossible. The Divi-

sion states it considered the paternal grandmother as an alter-

native to termination and urges that KLG should not be consid-

ered because V.T. had clearly articulated her desire to adopt

Nakeisha. The Division further argues that the Act is inappli-

cable because the father does not have standing to raise the

5
In fact, this has apparently occurred.

A-1576-09T4
39

argument and the Act does not outline the conditions necessary

to become a KLG. Finally, the Division argues that the record

is devoid of any evidence that the Division did not discuss KLG

with V.T. and, contrary to the father's arguments, the contact

sheets reveal V.T. discussed adoption with the Division multiple

times.

The Law Guardian also rejects the father's attempt to use

the Act as a basis for reversal. The Law Guardian argues that

the Act does not substantively change how states administer

their child welfare programs, nor does it render New Jersey's

legal standards inapplicable. The Law Guardian points out that

the Division need not consider KLG as an alternative to termina-

tion when adoption is feasible and likely. According to the Law

Guardian, KLG is inappropriate here because V.T. wished to adopt

Nakeisha.

Regarding prong three of N.J.S.A. 30:4C-15.1(a), the judge

found the Division offered a variety of services to the subject

family "at every identifiable stage of the Division's involve-

ment with [Nakeisha]." These included visitations, a case plan,

a paternity test, relative assessments, psychological and psy-

chiatric assessments, bonding evaluations, parenting skills

classes, substance-abuse treatment, and drug assessments. Yet,

despite these services being offered, the father was

A-1576-09T4
40

"consistently non-compliant and failed to participate actively

and appropriately in all services required for reunification."

The judge found that KLG was not appropriate because V.T. was

"ready, willing and able to adopt [Nakeisha]." The judge also

noted that relative placements were considered as alternatives

to termination. Based on the foregoing, the judge found that

30:4C-15.1(a)(3) with clear and
the Division proved N.J.S.A.

convincing evidence.

Under the third prong of the best-interests standard, the

Division must prove by clear and convincing evidence that it

"has made reasonable efforts to provide services to help the

parent correct the circumstances which led to the child's place-

ment outside the home and the court has considered alternatives

to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3).

"Reasonable efforts" include parental consultation; developing a

plan for appropriate services; providing services to further the

goal of reunification; informing the parent of the child's pro-

gress, development, and health; and facilitating visitation.

N.J.S.A. 30:4C-15.1(c). What is "reasonable" depends on the

circumstances of each case. D.M.H., supra,
161 N.J. at 390.

With respect to whether the Division satisfied its obliga-

tion to make reasonable efforts to provide services, it is clear

from the facts that the Division satisfied its duty. As it

A-1576-09T4
41

points out, the Division specifically provided the father with

numerous services, including: several visitation plans; multi-

ple meetings; drug, alcohol, substance-abuse, and CADC assess-

ments; outpatient treatment; transportation for visitations; a

paternity test; notification of court dates and scheduled visi-

tations with Nakeisha; multiple psychological and bonding

evaluations; and parenting skills classes. The father did take

advantage of some services. For example, he completed the CADC

assessment; attended some visitations and parenting skills

classes; and underwent the psychological and bonding

evaluations.

However, the father failed to adequately take advantage of

many of the services. He frequently and repeatedly missed vis-

its with Nakeisha, as his visitation was sporadic and inconsis-

tent. He did not complete the parenting skills classes, missing

at least half of the eight-week program. He did not make up the

classes even though he was permitted to do so. He did not

attend outpatient treatment as recommended. He missed the psy-

chological and bonding evaluations twice before finally seeing

Dr. Katz. He missed many court appearances as well. Based on

these facts, the trial judge did not err in finding that the

Division satisfied the requirement of N.J.S.A. 30:4C-15.1(a)(3)

that it provide the father with reasonable services.

A-1576-09T4
42

The trial judge also did not err in finding that alterna-

tives to termination were considered. Starting in 2001, the

Division considered A.G., V.T., J.A., D.N., and the paternal

grandparents as potential placements for Nakeisha. All except

V.T. eventually withdrew from consideration. After A.G. indi-

cated she no longer wished to adopt Nakeisha, V.T. expressed her

desire to adopt Nakeisha. V.T. was also fully licensed to care

for Nakeisha. Where adoption is both feasible and likely, KLG

is inappropriate. N.J. Div. of Youth & Family Servs. v. S.P.,

180 N.J. 494, 513 (2004); N.J. Div. of Youth & Family Servs. v.

S.V.,
362 N.J. Super. 76, 88 (App. Div. 2003). Here, adoption

by V.T. was feasible at the time of trial, because she was fully

licensed to care for Nakeisha, and it was likely, because V.T.

wanted to adopt Nakeisha. Therefore, KLG would be

inappropriate.

In arguing that the Act somehow changes the Division's

obligations in this matter, the father specifically cites 42

U.S.C.A. § 673(d)(3) as the basis of his argument. That statute

addresses KLG assistance payments for children and a child's

eligibility for such a payment. 42 U.S.C.A. § 673(d)(3). It

reads in pertinent part:

(A) In general. A child is eligible for a
kinship guardianship assistance payment
under this subsection if the State agency
determines the following:

A-1576-09T4
43

(i) The child has been----

(I) removed from his or her home
pursuant to a voluntary placement
agreement or as a result of a
judicial determination to the
effect that continuation in the
home would be contrary to the
welfare of the child; and

(II) eligible for foster care
maintenance payments under section
472 [42 U.S.C.A. § 672] while
residing for at least 6 consecu-
tive months in the home of the
prospective relative guardian.

(ii) Being returned home or adopted are
not appropriate permanency options for
the child.

(iii) The child demonstrates a strong
attachment to the prospective relative
guardian and the relative guardian has
a strong commitment to caring
permanently for the child.

(iv) With respect to a child who has
attained 14 years of age, the child has
been consulted regarding the kinship
guardianship arrangement.

(B) Treatment of siblings. With respect to
a child described in subparagraph (A) whose
sibling or siblings are not so described----

(i) the child and any sibling of the
child may be placed in the same kinship
guardianship arrangement, in accordance
with section 471(a)(31) [42 U.S.C.A. §
671(a)(31)], if the State agency and
the relative agree on the appropriate-
ness of the arrangement for the
siblings; and

A-1576-09T4
44

(ii) kinship guardianship assistance
payments may be paid on behalf of each
sibling so placed.

[Ibid.]

This statute has no bearing on this case. First, the stat-

ute addresses KLG assistance payments, not parental rights and

the termination of such rights. Second and similarly, the stat-

ute does not impact or otherwise alter New Jersey's statutory

landscape regarding the termination of an individual's parental

rights. As such, the trial judge did not plainly err in failing

to account for this statute, and we reject the father's argument

on this point.

Finally, we also reject the father's argument that the

Division did not fulfill its obligation under N.J.S.A. 30:4C-91.

That statute provides:

The Department of Human Services shall, in
easily understandable language:

a. inform individuals, of whom the
department is aware, who may be eligible to
become kinship legal guardians of:

(1) the eligibility requirements
for, and the responsibilities of,
kinship legal guardianship; and

(2) the full-range of services for
which kinship legal guardians may be
eligible and the eligibility
requirements for those services; and

b. inform current kinship legal guardi-
ans of the full-range of services for which

A-1576-09T4
45

kinship legal guardians may be eligible and
the eligibility requirements for those
services.

[N.J.S.A. 30:4C-91.]

There is no evidence in the record that the Division satis-

fied or failed to satisfy its obligation under this statute. As

the Division points out, it would be inappropriate to reverse

the trial judge's decision based on a bare assertion without any

evidence to support the father's argument. Considering that

V.T. was ready, willing, and able to adopt Nakeisha, and that

KLG is inappropriate where adoption is both feasible and likely,

S.P., supra,
180 N.J. at 513; S.V., supra,
362 N.J. Super. at
88, the alleged failure of the judge to make a specific fact-

finding that the Division failed to meet its obligations under

N.J.S.A. 30:4C-91 was not "clearly capable of producing an

unjust result," Rule 2:10-2.

Affirmed.

A-1576-09T4
46

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