NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-3526-10T2

A-3603-10T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

A.B. and W.R.,

Defendants-Appellants,

and

J.P.,

Defendant.

 

IN THE MATTER OF THE GUARDIANSHIP

OF M.B., C.B., and A.R.,

Minors.

 

March 7, 2013

 

Submitted February 4, 2013 - Decided

 

Before Judges Graves, Ashrafi, and Guadagno.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket Nos. FG-02-65-10 and FG-02-66-08.

 

Joseph E. Krakora, Public Defender, attorney for appellant A.B. (Durrell Wachtler Ciccia, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant W.R. (Evelyn F. Garcia, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jane S. Blank, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

Defendant A.B. (Alma)2 appeals from the judgment of the Chancery Division, Family Part, entered February 9, 2011, terminating her parental rights to her children C.B. (Charles), now sixteen years old, and A.R. (Andrea), now thirteen. Defendant W.R. (Warren), who is Andrea's father, appeals from the same order which also terminated his parental rights to his daughter. J.P. (Joseph), the putative father of Charles, was never located. Joseph's parental rights were terminated and he has not appealed.

The parental rights of Alma and Joseph to another child daughter M.B. (Marilyn), were also terminated in the February 9, 2011 judgment. However, after entry of the judgment, Marilyn turned eighteen and indicated that she did not want to be adopted. On September 12, 2012, the judgment as to Marilyn was vacated and the previously terminated parental rights of Alma and Joseph were restored as to her. Addressing appellants' arguments together in a single opinion, we affirm the judgment as to both.

I.

From 1998 to 2004, the New Jersey Division of Youth and Family Services (DYFS or the Division) received numerous abuse and neglect referrals regarding Alma. DYFS opened a case and provided assistance to Alma but closed the case in 2004, after purchasing beds for the family and determining that Alma had obtained appropriate housing.

DYFS reopened the case in 2006, after receiving a referral from the children's maternal grandmother, who reported that there was no food or electricity in Alma's apartment and the children were sleeping on the floor. Marilyn, who was then twelve years old, confirmed to the caseworker that the apartment had no refrigerator, power, or beds. The children ate breakfast and lunch at school and went to their grandmother's house for dinner every night. They did not get home until late in the evening, often near midnight. All three children stated that Alma would occasionally hit them with a belt. Marilyn told the caseworker that her mother did "not believe in doctors or medicine."

Alma explained to the caseworker that she had planned to move and threw away the beds and refrigerator because they were "no good." She insisted that the children had been sleeping on the floor for only a few days, but the children said that their mother had thrown out the beds soon after they arrived. Alma insisted that the electricity had been off for just a few days, but Marilyn said it had been off for about a month. Although Alma said she planned to move, she admitted that she had no actual place to move to.

DYFS substantiated neglect and removed the children on June 15, 2006. Marilyn and Andrea were placed in one foster home, and Charles was placed in another. The children were provided with weekly therapy, mentoring, and social programs.

In June 2006, DYFS was granted custody of the children and Alma was ordered to undergo psychiatric and psychological evaluations.

On September 14, 2006, Alma's attorney wrote to the judge overseeing the Title 9 litigation, and noted that Alma had been seen by two mental health professionals and diagnosed with paranoid schizophrenia. His conversations with her were "circular and meaningless" and he could not effectively communicate with her. He sought the appointment of a guardian ad litem (GAL) for her. On September 22, 2006, the judge signed an order appointing Ernest Villa, Esq., as GAL for Alma.

On October 10, 2006, Alma attended an intake appointment at Bergen Regional Ambulatory Behavioral Health Services. Alma denied any psychiatric problems or any current stressors. After her first session, Alma was described as "defensive, guarded [and] argumentative" with "no insight" into her situation with DYFS and was "unable to identify a problem/goal to work on." At her next session, Alma was less guarded and discussed job training.

On October 26, 2006, Alma stipulated that she was unable to care for the children due to financial issues and lack of housing.

On January 19, 2007, before attending any more sessions, Alma was involuntarily hospitalized at Bergen Regional Medical Center after she became extremely paranoid and threatened to kill family members. Alma was diagnosed with schizoaffective disorder and, after a commitment hearing, she remained hospitalized until February 21, 2007. During the hospitalization, she frequently refused to take her medication.

After her discharge, Alma attended outpatient therapy but discontinued therapy in May 2007. Although Alma was referred to Integrated Case Management Services (ICMS), a service designed to support mental health and assist with housing and employment, she failed to follow up with ICMS.

At a permanency hearing on July 10, 2007, the court approved the permanency goal of termination of parental rights followed by adoption. On September 11, 2007, DYFS filed a complaint against Alma, Warren, and Joseph seeking guardianship of the three children. The Title 9 litigation was dismissed.

On October 5, 2007, Alma's attorney asked that the guardian ad litem be continued and the judge granted the request.

Psychiatrist Samiris Sostre examined Alma in January 2008. Alma denied any mental health issues or that she required involuntary hospital admission in 2007. She admitted only that she did not take her prescribed medication. Dr. Sostre diagnosed Alma with schizoaffective disorder, bipolar type, and recommended a mood stabilizer and antipsychotic medication, as well as psychotherapy. She recommended that no further reunification steps be taken until Alma entered treatment.

Alma was hospitalized again from August 1, 2008 to August 22, 2008, with persecutory delusions and auditory hallucinations. She claimed that the devil was controlling her and telling her to go out and stab people. While Alma improved with medication, she told the caseworker she did not know why she was hospitalized because she felt "perfectly fine."

During this time, DYFS was working to secure permanent placements for the children. Andrea's father, Warren, who lived in the Dominican Republic with his mother, expressed interest in raising her, and he was approved for placement after an international home study was completed. Alma's sister, M.G. (Mary), who also lived in the Dominican Republic, expressed interest in adopting Marilyn and Charles. She too, was approved after an international home study.

Two DYFS workers visited both households in October 2008, and found them to be appropriate. DYFS arranged for all three children to visit the Dominican Republic for four days in January 2009, as none of them had ever met the adults who were being proposed as placements, although Andrea had some telephone contact with her father before the trip. After the trip, all of the children were receptive to the proposed placements. DYFS sought to reunify Andrea with her father and have Marilyn and Charles adopted by Mary.

In January 2009, a guardianship trial began as to Marilyn and Charles. At the time, Alma was living with her mother and brother in a two-bedroom apartment where she slept on the couch. Alma was not receiving therapy or taking medication. She was unemployed, as she had been for many years, and she refused to apply for Social Security disability, claiming that there was nothing wrong with her.

In a written decision, the judge terminated Alma's and Joseph's parental rights to Marilyn and Charles and entered a judgment of guardianship on February 27, 2009. As the plan was to reunite Andrea with her father, the guardianship case as to her was dismissed and the Title 9 matter was reopened.

On April 15, 2009, a permanency hearing was held. DYFS supported a plan to reunify Andrea with her father in the Dominican Republic, but learned that Warren had recently married and moved to Spain to be with his new wife. A DYFS caseworker spoke to Warren in Spain who said he now wanted Andrea to be cared for by his mother, J.H. (Jennifer), who remained in the Dominican Republic. The court found that placement with Jennifer was not appropriate because a home study had not been completed. Subsequently, DYFS determined that Jennifer was unemployed with no means of support and was unable to financially provide for Andrea. DYFS sent her a rule-out letter on August 12, 2010, from which she did not appeal.

DYFS then sought to have Andrea placed with Mary, and her home was approved for all three children. Warren did not ask for Andrea to be placed with him in Spain, and Andrea was upset with her father for moving without notice just prior to her placement with him. Andrea also wanted to stay near her siblings.

In June 2009, before the children were to move to the Dominican Republic, Mary advised DYFS that she was having marital issues, and she needed more time before taking the children. In October 2009, Mary withdrew herself as a possible placement.

After Mary's withdrawal, at Warren's request, DYFS assessed his brother as a placement for Andrea, but he was ruled out due to his criminal history. After the caseworker advised Warren of his brother's rule-out, Warren had no further contact with DYFS.

From June 6, 2009 to June 17, 2009, Alma was hospitalized for a third time when she became psychotic and aggressive with her mother, threatening to "draw blood." She was again diagnosed with schizoaffective disorder. A court order was obtained to medicate Alma against her will. After her discharge, she was referred for intensive out-patient treatment for five days a week at the hospital. She attended some sessions but was ultimately discharged in October 2009 for non-compliance. Alma was offered the option of being injected once per month with her medication, but she refused.

DYFS filed a complaint for guardianship as to Andrea on October 7, 2009. Marilyn was moved to another foster home in November 2009. Meanwhile, Alma appealed the judgment terminating her parental rights as to Marilyn and Charles. By order dated November 19, 2009, we granted Alma's motion for a remand, based on the change in the expected placements.

Dr. Sostre re-evaluated Alma in January 2010, and found her "basically the same," that is, suffering from schizoaffective disorder, bipolar type. Alma admitted not taking her medication. Dr. Sostre found that at that time, Alma had no symptoms that posed a risk to herself or others, but she had a cyclical mental disorder whose symptoms were likely to recur. Therefore, "without follow up and prophylactic medication, the likelihood that she will have an episode where she presents as agitated and erratic and dangerous in the future is very high." She concluded that if Alma did not consistently get treatment, the risk to her children would be very high. The residual symptoms of her illness presented in her inability to obtain housing and work.

In March 2010, Marilyn relocated to North Carolina with her foster mother. On April 14, 2010, the judge approved DYFS's plan to terminate the parental rights of Alma and Warren, and to have Andrea adopted. In July 2010, Andrea moved to North Carolina to live with the same foster mother as Marilyn.

Psychologist Daniel Bromberg conducted a psychological evaluation of Alma in April 2010 and reviewed her records. Alma denied experiencing hallucinations and claimed she was "fine" mentally and did not need medication. Dr. Bromberg found that Alma's denial of mental health problems and her history of non-compliance indicated that her mental health issues were likely to remain untreated and her refusal to acknowledge her condition posed a danger to the children. Her psychotic episodes were infrequent, but when she was in a psychotic state, she had the potential to harm herself or her children. Dr. Bromberg found that although Alma had the potential to parent in a "minimally effective manner" if she received therapy, she remained incapable of providing a safe and stable environment despite the number of years that had passed since the children had been removed.

Dr. Bromberg also conducted a bonding evaluation with Alma and her children. He found that her interactions with the children were "excellent" and there was a "strong emotional attachment" with each child. However, Alma was "inattentive" to a safety issue with Charles, and also failed to correct "socially inappropriate" behavior by Andrea.

Dr. Bromberg observed Charles with his foster parents, who were "older" and with whom he had a "grandparent-like" relationship. Dr. Bromberg found that Charles had a "reasonably strong emotional attachment" to them; however, Charles was hoping that his mother would be able to take care of him. Dr. Bromberg believed Charles's wishes to be returned to his mother were based on a "fantasy" that was not realistic. Continuing to allow him to believe there could be a reunification with his mother impeded his ability to form a relationship with another caregiver as his loyalties were divided, and he was unable to commit emotionally to another relationship.

Dr. Bromberg believed that Andrea had "indiscriminate attachment," meaning she would attach to whatever caregiver was present. He concluded that severing the bonds between Alma and the children would cause the children to suffer "temporary emotional difficulties." Based on the "quality of attachment" between Charles and his respective foster parents, Dr. Bromberg found it "unlikely" that the harm to Charles would endure, especially if he received therapy. Dr. Bromberg believed there was a greater risk of harm from the continued lack of permanency in the children's lives than from the termination of parental rights. The "worst outcome" would be to have no plan for permanency.

The judge conducted a de novo guardianship trial regarding all three children between September 2010 and December 2010. Drs. Sostre and Bromberg testified for the Division along with DYFS caseworkers. Alma also testified. She continued to live with her mother and her brother in a two-bedroom apartment. She conceded that there was no room for the children there but blamed DYFS for not providing help in finding an apartment or funds for housing. Alma worked for a few weeks in January 2010, but had to quit when she developed medical complications from a pregnancy and subsequently lost the baby. The last job she had prior to that was in 2000. Alma claimed she was unable to apply for jobs because she did not have a computer. She admitted that she could not provide a home for her children at the time.

DYFS caseworker Priscilla Valentin testified that she had numerous conversations with Alma about housing, but Alma said she did not need help obtaining it. Alma also maintained that she did not need medication as she denied any mental health problems. She also denied telling doctors that the devil was directing her to stab people. In the past when she took medication, it disturbed her sleep and made her think slowly. She denied that anyone ever recommended that she receive therapy.

In January 2011, after the trial concluded but before the decision was issued, Andrea was placed in the same foster home as Charles. DYFS's plan for Andrea was adoption by these foster parents.

On February 9, 2011, the judge issued a written decision terminating the parental rights of Alma, Warren and Joseph to their respective children. Alma and Warren filed timely notices of appeal and we consolidated them. While the appeals were pending, Marilyn's foster mother's home was denied a license for adoption and Marilyn was placed in another foster home. Marilyn, who is now eighteen, decided she does not want to be adopted. Based on this development, we granted the Division's motion to remand as to Marilyn in order to implement a new permanency plan of independent living. Thus, this appeal continues only as to Charles and Andrea.

On appeal, Alma raises the following points for our consideration:

POINT I

 

THE JUDGMENT OF GUARDIANSHIP SHOULD BE VACATED AND THE MATTER REMANDED FOR A NEW TRIAL AS [ALMA] WAS DENIED DUE PROCESS AND FUNDAMENTAL FAIRNESS THROUGHOUT THE PROCEEDINGS BELOW (Not raised below).

 

 

 

 

 

POINT II

 

THE JUDGMENT OF GUARDIANSHIP SHOULD BE VACATED AS [ALMA] WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL (Not raised below).

 

A. THE INITIAL APPOINTMENT OF THE GUARDIAN AD LITEM.

 

B. THE STIPULATION.

 

C. THE RE-APPOINTMENT AND CONTINUED PRESENCE OF THE GUARDIAN AD LITEM.

 

D. THE INITIAL APPEAL.

 

E. THE FAILURE TO OBJECT TO THE INTERVIEWS OF THE CHILDREN.

 

POINT III

 

THE TRIAL COURT ERRED IN CONCLUDING THAT THE CHILDREN'S BEST INTERESTS WILL BE SERVED BY TERMINATING [ALMA'S] PARENTAL RIGHTS.

 

A. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT THE CHILDREN'S SAFETY, HEALTH OR DEVELOPMENT HAVE BEEN OR WILL CONTINUE TO BE ENDANGERED BY THEIR RELATIONSHIP WITH THEIR MOTHER.

 

B. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT [ALMA] IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HER CHILDREN.

 

C. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT THE DIVISION HAS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP THE PARENT CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILDREN'S PLACEMENT OUTSIDE THE HOME AND TO CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.

 

D. TERMINATION OF [ALMA'S] PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

 

Warren raises the following issues:

POINT I

 

THE TERMINATION OF [WARREN'S] PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT [WARREN] PUT [ANDREA] AT RISK, THEREBY FAILING TO PROVE THE FIRST STATUTORY PRONG.

 

A. THE TRIAL COURT IMPROPERLY CONCLUDED THAT [WARREN'S] ABSENCE FROM NEW JERSEY SUPPORTED TERMINATING HIS PARENTAL RIGHTS.

 

B. THE TRIAL COURT IMPERMISSIBLY APPLIED [WARREN'S] FINANCIAL LIMITATIONS TO SUPPORT TERMINATION OF HIS PARENTAL RIGHTS.

 

POINT II

 

THE DIVISION FAILED TO MEET ITS BURDEN AS TO PRONG TWO BECAUSE THERE WAS NO PROOF THAT [WARREN] WAS UNWILLING TO ELIMINATE HARM TO [ANDREA], OR THAT [ANDREA] WOULD SUFFER SERIOUS PSYCHOLOGICAL HARM IF SEPARATED FROM HER FOSTER FAMILY OR THAT [WARREN] WAS UNWILLING TO PROVIDE A STABLE HOME.

 

POINT III

 

THE DIVISION FAILED TO PROVE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD, THUS FAILING TO PROVE PRONG FOUR BY CLEAR AND CONVINCING EVIDENCE.

 

The Law Guardian for the minor children argues that Alma's due process rights were not violated with the appointment of the GAL and urges that judgment of guardianship be affirmed.

II.

Judge John Conte filed a ninety-seven-page written decision on February 9, 2011. He carefully reviewed the evidence and stated his findings of fact and conclusions of law in accordance with the applicable statute, N.J.S.A. 30:4C-15.1(a). Judge Conte concluded that the four prongs of the best interests test were proven by clear and convincing evidence as to Alma and Warren. We affirm the judgment essentially for the reasons stated in Judge Conte's thorough opinion. Substantial credible evidence justifies the judge's findings of fact and conclusions of law. We add the following comments, primarily to address the arguments that defendants failed to raise before the trial court.

Alma argues that she was denied due process when a GAL was appointed for her without notice or a hearing. She also maintains that the reappointment of the GAL after the guardianship complaint was filed was not warranted and that the GAL failed to properly carry out his responsibilities.

Rule 4:26-2(b) allows the court to appoint a GAL for an "alleged mentally incapacitated person." While a person need not be adjudicated mentally incapacitated before a GAL is appointed, the lynchpin of the appointment is that the person is alleged to be mentally incapacitated. In re D.K., 204 N.J. Super. 205, 225 (Ch. Div. 1985); Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 4:26-2 (2013). While Alma claims that there was no legal or factual basis to support the initial appointment or the reappointment of the GAL, we need not reach that question as she has demonstrated no prejudice flowing from the appointments.

Due process protection "is intended . . . to secure the citizen against any arbitrary deprivation of his rights, whether relating to his life, his liberty, or his property." Dent v. West Virginia, 129 U.S. 114, 124, 9 S. Ct. 231, 234, 32 L. Ed. 623, 626 (1889). This due process protection guarantees parents the right to counsel in termination proceedings. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305-06 (2007) (citing Pasqua v. Council, 186 N.J. 127, 147 n.5 (2006)). There is also a statutory right to counsel in such proceedings pursuant to N.J.S.A. 30:4C-15.4(a).

We note that it was Alma's counsel who applied for the appointment of the GAL. After the children were removed on June 15, 2006, Alma appeared at a hearing on the Division's order to show cause on June 19, 2006. She was represented by temporary counsel who was replaced by Kenneth Grossman at the next court appearance, June 26, 2006. The court ordered Alma to submit to psychological and psychiatric evaluations and comply with all recommendations.

On July 18, 2006, Dr. James Ferretti, a psychiatrist, conducted a psychiatric evaluation of Alma and diagnosed her as suffering from schizophrenia or schizophrenform disorder. He recommended psychiatric treatment, including psychotropic medication and counseling.

On July 24, 2006, Dr. Michael J. Fiore, a psychologist, evaluated Alma and found her "an emotional unstable, withdrawn adult who presents with symptoms of a severe mental disorder." Dr. Fiore recommended a psychiatric evaluation with follow-up treatment and psychotherapy.

On September 14, 2006, Grossman wrote to the court referencing both doctors' diagnoses. Grossman reported that Alma appeared to be "totally bewildered by the litigation" and that all of his conversations with her were "circular and meaningless." Grossman concluded that he could not effectively communicate with Alma "or plan any plausible defense for her." Grossman suggested that the court appoint a GAL "to assist her with housing, treatment and other affairs." On September 22, 2006, the court entered an order appointing Ernest Villa, Esq., as GAL on behalf of Alma.

Although Alma claims that Villa's appointment as GAL "undermined her entire case during the proceedings below," she provides no specifics as to anything that Villa did that caused her prejudice. We have reviewed the record and find that Villa consistently acted as an advocate for Alma. Alma testified at trial that Villa assisted her when she applied for welfare benefits. When Alma failed to appear at a pretrial conference on September 27, 2010, Villa shared his observations of Alma with the court in arguing against proceeding in her absence:

[Alma] can assist counsel based on my conversations with her. She's well aware of what the proceedings are, and she would in fact object to proceeding without her and that, you know, basically we're in a situation where [if she] couldn't assist counsel, couldn't [provide] some input. I would have no problem [] proceeding without her but in this case, she is cognizant of the proceeding, is quite aware of what's going on, and there's also an issue if we proceed without her which could be raised on an appeal. We may just be doing this and being sent right back again.

We are convinced that Alma suffered no prejudice from the appointment and reappointment of Villa as GAL.

Alma next argues that the judgment of guardianship should be vacated as she was denied the effective assistance of counsel. To prove ineffective assistance of counsel, a defendant must satisfy the two-part test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984):

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

 

[Id. at 687, 104 S. Ct. at 2064, 80 L. Ed 2d at 693.]

The test for ineffective assistance of counsel in a termination case is the same as in a criminal case. B.R., supra, 192 N.J. at 308-09. When a defendant appeals from an adverse determination in a guardianship action, and alleges ineffective assistance of counsel as a ground for reversing the guardianship judgment, the defendant must:

provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the lawyer's performance not been deficient. That will include the requirement of an evidentiary proffer in appropriate cases. For example, if the failure to produce expert or lay witnesses is claimed, appellant will be required to supply certifications from such witnesses regarding the substance of the omitted evidence along with arguments regarding its relevance.

 

[Id. at 311.]

 

In reviewing Alma's claim we must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Id. at 307 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695).

Alma claims that her counsel was ineffective for initiating the appointment of the GAL and then requesting his reappointment. We have already determined that she suffered no prejudice by the appointment, and defendant has not presented any evidence to demonstrate that the result would have been different had the GAL not been appointed.

Alma's counsel sought the appointment of the GAL based on his difficulty in communicating with Alma and his review of the findings of Dr. Ferretti and Dr. Fiore, who both found that Alma suffered from severe mental disorders. Alma's counsel was acting in her best interests when he sought the appointment of a GAL and was not deficient in failing to request a competency hearing, as there was no requirement for a competency hearing under Rule 4:26-2(b)(2).

Alma next contends that counsel was ineffective for allowing her to enter a "travesty" of a stipulation admitting that she was unable to care for the children. Factual stipulations "permit parties in a civil case to agree on relevant facts, thereby narrowing the area of dispute requiring the production of evidence and promoting the efficient administration of justice," and are permissible in a neglect and abuse cases. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002). "However, a stipulation must be definite and certain in its terms and the consent of the parties to be bound by it must be clearly established." Ibid. Further, before a stipulation in lieu of a fact-finding hearing can be accepted, the court must determine that there is a factual basis for the stipulation and that the waiver is clear and results in an unequivocal relinquishment of a known right. Id. at 266.

Alma claims that the judge never stated that the stipulated facts were adequate to prove Alma had abused or neglected her children and there was no indication that she made an intentional relinquishment of a known right. Further, she suggests that if she was truly incompetent, she could not enter into a stipulation under any circumstances.

Prior to entering the stipulation, Alma acknowledged that she had spoken with both her attorney and the GAL. She understood that the Division was prepared to call witnesses to establish "many allegations" and that there was a "reasonable chance that [the trial judge] would find that there was some neglect of the children if there was a trial." Alma admitted she did not have "an adequate place for the children," she did not have a job, and she didn t have the ability to care for the children at that time.

Alma told the judge that no one was forcing her to enter into the stipulation and that she had sufficient time to consult with both her attorney and the GAL.

While Alma claims there was no "benefit" to her in entering the stipulation, she does not dispute the truth of any of the admissions she made. Moreover, in limiting the stipulation to the issues of her lack of housing and financial problems, Alma avoided confronting any of the evidence of her mental health impairments that the Division could have presented.

The record is clear that, had Alma not stipulated, the Division was prepared to present evidence to establish the facts she conceded. Moreover, when Alma testified at the second guardianship trial, she admitted that four years after entering her stipulation she was still unable to provide for her children. The second part of the Strickland test cannot be satisfied, as Alma's stipulation did not lead to a result that otherwise would not have been reached.

Alma next argues that her counsel was ineffective for failing to object when the trial court interviewed the children in chambers with only the law guardian present and without a recording being made of the interview. Our Supreme Court has urged trial courts in guardianship cases to consider the wishes of the children involved. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 113 (2008). But the Court noted that the child's law guardian is obligated to make the wishes of the child known. Ibid. (citing N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 70 (App. Div.), certif. denied, 174 N.J. 39 (2002)).

Alma does not explain how her attorney's failure to object to the lack of recording caused her prejudice. The judge mentioned the interview in his opinion, and noted that the children had "some ambivalence" about residing with their mother, but they "clearly" wanted to stay together as a family. Alma has not demonstrated that had the interview been recorded it would have produced a different result. While recording the interview would have been preferred, the lack of a recording did not impair Alma's defense against the charges brought by DYFS.

As to the points raised by Warren, our review of the record satisfies us that Judge Conte's conclusions are adequately supported by the evidence and further discussion of these points is not warranted. R. 2:11-3(e)(1)(E).

We add only the following observations. Andrea never lived with Warren, met him only once, and spoke to him on the phone a limited number of times. Although Warren claims that he never harmed Andrea, the evidence showed that Warren never provided for his daughter and had no contact with her until DYFS began its investigation. After agreeing to have Andrea placed with him in the Dominican Republic, Warren moved to Spain on the eve of Andrea's placement, without telling DYFS or his daughter. When the DYFS caseworker contacted Warren in Spain, he suggested that Andrea be placed with his mother.

Judge Conte found that there "has not been one shred of evidence that [Warren] is willing or able to eliminate that harm nor is there evidence that he is able to provide a safe and stable home for his child." After eleven years, "there is still a total disregard of her well-being." We agree.

In sum, the evidence supported Judge Conte's decision to terminate the parental rights of Alma and Warren.

Affirmed.

1 Effective June 29, 2012, the Division of Youth and Family Services (DYFS or the Division) was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

2 We use fictitious names to protect the privacy of the minors and for ease of reference.