NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.S and F.A. and E.M

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1779-19T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

S.S.,

Defendant-Appellant,

and

F.A. and E.M.,

Defendants.
__________________________

IN THE MATTER OF THE
GUARDIANSHIP OF J.X.A.,
a minor.
__________________________

Submitted October 5, 2020 – Decided October 23, 2020

Before Judges Fasciale and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0221-19.

Joseph E. Krakora, Public Defender, attorney for
appellant (Robin A. Veasey, Deputy Public Defender,
of counsel; Bruce P. Lee, Designated Counsel, on the
briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Nicholas Dolinsky, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Todd Wilson, Designated
Counsel, on the brief).

PER CURIAM

Defendant S.S. (the mother) appeals from a December 16, 2019 order

terminating her parental rights to her son J.X.A. (the child), born in 2017, and

awarding guardianship to the Division of Child Protection and Permanency (the

Division). The Division removed the child, who has special needs and is

thriving in foster care, when he was approximately seven months old primarily

because of the mother's inability to parent the child. Judge Radames Velazquez,

Jr. presided over trial, entered judgment, and rendered a thirty-one-page

comprehensive written opinion.

On appeal, the mother argues:

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[POINT I]

THE [JUDGE] LACKED PERSONAL
JURISDICTION OVER [THE MOTHER],
THEREFORE THE JUDGMENT TERMINATING
PARENTAL RIGHTS SHOULD BE VACATED.
(NOT RAISED BELOW).

[POINT II]

[THE MOTHER'S] RIGHT TO COUNSEL WAS
VIOLATED BY THE [JUDGE'S] FAILURE TO
APPOINT A GUARDIAN AD LITEM. (NOT
RAISED BELOW).

[POINT III]

BECAUSE OF D.S.'S1 OVERPOWEING INFLUENCE
ON [THE MOTHER], THE [JUDGE'S] FINDINGS
UNDER PRONG II [WERE] NOT SUPPORTED BY
THE CREDIBLE AND SUFFICIENT EVIDENCE.

We disagree and affirm.

We begin by addressing the mother's contention—raised for the first time

—that the court lacked personal jurisdiction over her because she was suffering

from cognitive difficulties and mental health problems and was overborne by

D.S.'s controlling behavior. The mother argues that these things rendered her

incapable of making her own decisions, the judge should have sua sponte

1
D.S. is the maternal grandmother.
A-1779-19T3
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appointed a guardian ad litem (GAL), and that the failure to do so requires us to

vacate the judgment. By not sua sponte appointing a GAL, we see no error or

abuse of discretion.

Our Supreme Court has made it abundantly clear that "issues not raised

below will ordinarily not be considered on appeal unless they are jurisdictional

in nature or substantially implicate the public interest." New Jersey Div. of

Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010) (citation omitted).

Although the appointment of a GAL is not purely jurisdictional in nature and

does not substantially implicate the public interest, we will nevertheless

consider her contentions.

A guardian for a "mentally incapacitated person" is authorized to

prosecute a legal action on her behalf. Rule 4:26-2(a). But the role of a GAL,

unlike a guardian, for an alleged mentally incapacitated person is limited. Rule

4:26-2(b). See S.T. v. 1515 Broad Street, LLC., 241 N.J. 257, 278 (2020)

(explaining the different roles guardians and GALs play). The GAL's

responsibility is to "advise the court as to whether a formal competency hearing

may be necessary and if so, to represent the alleged mentally incapacitated

person at that hearing." Ibid. (quoting Pressler & Verniero, Current N.J. Court

Rules, cmt. 3 on R. 4:26-2 (2020)). Thus, a GAL would not be able to make

A-1779-19T3
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legal decisions for the mother. See S.T., 241 N.J. at 279 (stating "[n]othing in

our court rules, statutes, or case law suggests that a [GAL] appointed to

investigate a client's alleged mental incapacity has the power to make legal

decisions for the client before a judicial determination on her mental capacity ").

Under Rule 4:26-2(b)(4), a court has discretion to appoint a GAL. But

once appointed, the GAL's role is to "act as an independent investigator and

inform the court on the subject of the client's mental capacity." Ibid. In such a

case, a GAL's recommendation would be whether a formal hearing should

proceed under Rule 4:86. Ibid. Regardless of the GAL's recommendation, only

the court makes its own independent findings about the alleged mental

incapacity. Ibid.

We emphasize that contrary to the mother's assertion in her merits brief,

a GAL does not have the responsibility for "actually making legal decisions" on

her behalf. At best, a guardian would have that authority, not a GAL. She

erroneously argues—for the first time—that a GAL could have decided whether

to allow an identified surrender, could have testified for the mother, and could

have filed a motion to hold D.S. in contempt of court for interfering with the

mother's attempt to comply with services. In her merits brief, the mother

contends for the first time that D.S.'s "overpowering influence," her own

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impairment, and her diagnosis of schizoaffective disorder (bipolar type),

rendered her allegedly incompetent to manage her own affairs. This is different

than her defense theory at the Family Guardianship (FG) trial.

Even if the judge appointed a GAL, the appointment would not have

changed the outcome of the trial because—focusing on prong two as the mother

has on this appeal—whether she was unable or unwilling to parent remained a

central issue. The testimony and expert opinions introduced at the FG trial

focused on the mother's parental fitness, not whether she was unable to manage

her own affairs or govern herself. In that context, the experts explained their

recommended treatment for her mental and psychological issues. Indeed, cross-

examination of the experts by the mother's counsel did not seek to uncover her

incapacity to manage her own affairs; rather, counsel elicited testimony about

the mother's normative behavior (such as positive aspects of her mannerisms;

the clarity of her speech; her positive mood; the denial of hallucinations, suicidal

ideations, and depression; and her stable housing, good behavioral control, and

adherence to a medication regimen), and highlighted the treatability of her

mental condition. At trial, therefore, her counsel defended the allegations in the

FG complaint by suggesting that the mother was capable of parenting, which

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contradicts her new argument that a GAL was necessary to address the mother's

alleged incompetency.

Further undermining her GAL contention are the numerous examples of

the mother's understanding that she needed to comply with the Division's

recommendations to achieve reunification. For example, the mother

acknowledged that failure to work with the Division led to the child's removal

and undermined reunification; she affirmed what she had to do for reunification;

and she agreed that she could not let D.S. dictate her own decisions. The record

shows that the mother understood D.S.'s behavior would undoubtedly hinder the

mother's goal, and that the mother understood the need to follow through and

complete the mental health evaluations. The mother therefore demonstrated she

understood what reunification required and her own decision-making authority

in the process.

II.

We are mindful that the termination of parental rights "implicates a

fundamental liberty interest;" as such, a parent in a termination case is entitled

to effective assistance of counsel. New Jersey Div. of Youth & Family Servs.

v. B.R., 192 N.J. 301, 305–06 (2007). In a termination case, counsel's

performance is evaluated by the standard for ineffective assistance of counsel

A-1779-19T3
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established in Strickland v. Washington, 466 U.S. 668, 687 (1984). B.R., 192 N.J. at 308-09. A parent must satisfy the two-part test enunciated in Strickland

by demonstrating that: (1) counsel's performance was deficient; and (2) the

deficient performance actually prejudiced the defense. 466 U.S. at 687. In

reviewing claims of ineffectiveness, courts apply a strong presumption that

defense counsel "rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment." Id. at 690. In a

parental termination case, claims of ineffective assistance of counsel must be

raised on direct appeal. R. 2:10-6.

Here, the mother contends—for the first time—that D.S. (her own mother)

interfered with her defense. Rather than applying Strickland and arguing her

attorney rendered ineffective assistance, she contends that the judge's failure to

sua sponte appoint a GAL "violated" her right to counsel. In her merits brief,

the mother contends that a GAL was "necessary" to limit D.S.'s role and preserve

her right to counsel. Of course, she had legal representation; but—as further

explained in her reply brief—she suggests that the failure to appoint a guardian

(not a GAL) deprived her of a meaningful attorney-client relationship, if one at

all.

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Our review of the record demonstrates otherwise. The mother had ample

opportunities to interact in private with her counsel without the outside

influences about which she now argues. The mother was present at almost every

guardianship hearing, without D.S., and could communicate privately with

counsel, who strongly advocated for her. The mother similarly had other

opportunities to participate in this case outside of D.S.'s involvement, including

consistent therapeutic visits with the child, a psychological evaluation by Dr.

Mack, and by directly communicating with the Division caseworker. From our

review of the record, these opportunities occurred throughout most of the

litigation. It is therefore not surprising that the mother never raised earlier that

she was deprived a meaningful attorney-client relationship.

And there is no reasonable suggestion that the mother's counsel's rendered

services were deficient or that counsel in any way prejudiced the mother. To

the contrary, counsel represented the mother throughout the entire litigation,

cross-examined witnesses, and advocated for reunification. We see no credible

evidence demonstrating that D.S. interfered with counsel's ability to zealously

represent the mother, particularly where counsel never raised this as an issue

during the litigation.

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Although the mother argues for the first time in her reply brief that a

"formal [competency] inquiry under [Rule] 4:86" was required because she

"suffered from psychological impairments," at trial, the mother contended that

she had adequately maintained housing, adhered to her medication regimen, and

maintained good behavior. The mother expressed a desire for reunification and

verbally expressed that desire in a logical fashion by submitting to evaluations

and visits with the child. Not once did she take the position that she was unable

to parent, let alone manage her own affairs. Indeed, if she had, such a position

would have undercut her trial-court argument that she was fit to parent the child.

III.

Finally, we reject the mother's argument that the Division failed to satisfy

its burden. There exists a well-settled legal framework regarding the

termination of parental rights. Parents have a constitutionally protected right to

the care, custody, and control of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999).

However, that right is not absolute. N.J. Div. of Youth & Family Servs. v. R.G.,

217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.
591, 599 (1986). At times, a parent's interest must yield to the State's obligation

to protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M., 198

A-1779-19T3
10 N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To

effectuate these concerns, the Legislature created a test to determine when it is

in the child's best interest to terminate parental rights. To terminate parental

rights, N.J.S.A. 30:4C-15.1(a) requires the Division to prove four prongs by

clear and convincing evidence:

(1) The child's safety, health, or development has been
or will continue to be endangered by the parental
relationship;

(2) The parent is unwilling or unable to eliminate the
harm facing the child or is unable or unwilling to
provide a safe and stable home for the child and the
delay of permanent placement will add to the harm.
Such harm may include evidence that separating the
child from [her] resource family parents would cause
serious and enduring emotional or psychological harm
to the child;

(3) The [D]ivision has made reasonable efforts to
provide services to help the parent correct the
circumstances which led to the child's placement
outside the home and the [judge] has considered
alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more
harm than good.

See also A.W., 103 N.J. at 604-11. The four prongs of the test are "not discrete

and separate," but "relate to and overlap with one another to provide a

comprehensive standard that identifies a child's best interests." K.H.O., 161 N.J.

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at 348. "The considerations involved in determinations of parental fitness are

'extremely fact sensitive' and require particularized evidence that address the

specific circumstances in the given case." Ibid. (quoting In re Adoption of

Children by L.A.S., 134 N.J. 127, 139 (1993)).

Our review of a family judge's factual findings is limited. Cesare v.

Cesare, 154 N.J. 394, 411 (1998). "When a biological parent resists termination

of his or her parental rights, the [judge's] function is to decide whether that

parent has the capacity to eliminate any harm the child may already have

suffered, and whether that parent can raise the child without inflicting any

further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81,

87 (App. Div. 2006). The factual findings that support such a judgment "should

not be disturbed unless 'they are so wholly insupportable as to result in a denial

of justice,' and should be upheld whenever they are 'supported by adequate ,

substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super.
172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co.

of Am., 65 N.J. 474, 483-84 (1974)). "[T]he conclusions that logically flow

from those findings of fact are, likewise, entitled to deferential consideration

upon appellate review." R.L., 388 N.J. Super. at 89.

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The mother argues that the Division failed to prove prong two, which

implies that it proved prongs one, three, and four. We conclude that the Division

proved all four prongs by clear and convincing evidence. We do so substantially

for the reasons given by the judge. As to prong two, however, we add the

following remarks.

The second prong of the best interests test requires the Division to present

clear and convincing evidence that "[t]he parent 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). The judge must

consider whether the parent cured and overcame the initial harm that endangered

the child and whether the parent is able to continue the parental relationship

without recurrent harm to the child. K.H.O., 161 N.J. at 348-49. To satisfy its

burden, the Division must show the child faces continued harm because the

parent is unable or unwilling to remove or overcome the harm. N.J. Div. of

Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 483 (App. Div. 2012).

The first and second prongs are related, and often, "evidence that supports one

informs and may support the other as part of the comprehensive basis for

determining the best interests of the child." D.M.H., 161 N.J. at 379.

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"Parental unfitness may also be demonstrated if the parent has failed to

provide a 'safe and stable home for the child' and a 'delay in permanent

placement' will further harm the child." K.H.O., 161 N.J. at 352 (quoting

N.J.S.A. 30:4C-15.1(a)(2)). "Keeping [a] child in limbo, hoping for some long[-

]term unification plan, would be a misapplication of the law." N.J. Div. of Youth

& Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001).

As to prong two, the judge found the mother is "unable and unwilling to

provide a safe and stable home for [the child] and that a delay of permanency

will add to the harm that [the child] has already endured." He pointed out the

mother's "compliance with the Division has been sporadic at best." H e found

she had only been "partially compliant with services." Although the mother had

"almost two years to come to terms with her schizoaffective disorder and come

up with a treatment and maintenance plan," the judge found that she "adamantly

refused to engage in a partial hospitalization program, despite the Division and

multiple doctors referring her to such a program." Indeed, the judge found that

she ignored the treating doctor's recommendations. Failing to treat her condition

"risks manifestation of symptoms," and the judge further found that the mother

has not confronted her mental illness or willingly sought out proper treatment.

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As to D.S., the Division told the mother that distancing herself would

improve compliance with services. But, as the judge found, the mother did "just

the opposite." The mother willingly obtained an apartment with D.S. during the

litigation and failed to work with the Division to remove D.S. as payee on her

social security benefits, which the judge concluded was a manifestation of the

mother's "unwillingness to change her situation and improve her parenting

ability." Along those line, the judge found that although the Division scheduled

multiple bonding evaluations between the mother and the child, the mother

failed to attend, which the judge explained "sheds light on her lack of

commitment to parenting [the child]." Finally, the judge found that the mother

"does not believe that she has a mental illness that requires continuous

treatment."

Affirmed.

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