NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.B
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2620-18T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
J.B.,
Defendant-Appellant.
______________________________
IN THE MATTER OF THE
GUARDIANSHIP OF D.R., Jr.,
A Minor.
______________________________
Argued March 4, 2020 – Decided March 11, 2020
Before Judges Haas, Mayer and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FG-20-0045-18.
Anne E. Gowen, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Robyn A. Veasey, Deputy Public Defender,
of counsel; Anne E. Gowen, on the briefs).
Samuel Fillman, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jane C. Schuster, Assistant Attorney
General, of counsel; Samuel Fillman, on the brief).
Noel Christian Devlin, Assistant Deputy Public
Defender, argued the cause for minor (Joseph E.
Krakora, Public Defender, Law Guardian, attorney;
Noel Christian Devlin, of counsel and on the brief).
PER CURIAM
Defendant J.B.,1 the biological mother of D.R., Jr. (Daniel), born in March
2017, appeals from the Family Part's February 5, 2019 judgment of guardianship
terminating her parental rights to the child. 2 Defendant contends that the
Division of Child Protection and Permanency (Division) failed to prove prongs
three and four of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.
Defendant also alleges that her trial attorney did not provide her with effective
legal assistance. The Law Guardian supports the determinations on appeal as it
did before the trial court.
1
We refer to the adult parties and family members by initials, and to the child
by a fictitious name, to protect their privacy. R. 1:38-3(d)(12).
2
The child's biological father has never been identified. However, the judgment
also terminated the parental rights of "The Biological Father, Whomsoever He
May Be." This portion of the judgment is uncontested in this appeal.
A-2620-18T2
2
Based on our review of the record and applicable law, we are satisfied that
the evidence in favor of the guardianship petition overwhelmingly supports the
decision to terminate defendant's parental rights, and that defendant's attorney
provided her with effective representation. Accordingly, we affirm substantially
for the reasons set forth in Judge James Hely's thorough and thoughtful oral
decision rendered on February 5, 2019.
We incorporate by reference the factual findings and legal conclusions
contained in Judge Hely's decision, and add the following comments. The
hospital where Daniel was born contacted the Division shortly after the child
and defendant tested positive for opiates at the time of the child's birth.
Defendant admitted to taking heroin during her pregnancy and, as a result,
Daniel suffered from withdrawal symptoms and had to be cared for in the
neonatal intensive care unit for several weeks. Prior to the hospital's release of
the child, the Division conducted an emergency removal and obtained custody
of Daniel. Defendant later stipulated that she abused or neglected Daniel within
the intendment of N.J.S.A. 9:6-8.21(c) "by using drugs during her pregnancy
which [caused] the child to be born positive for the same and experience
withdrawal symptoms."
A-2620-18T2
3
The Division placed the child with defendant's mother, K.W. in March
2017. Both defendant and her mother knew that defendant's contact with the
baby had to be supervised. However, the Division soon learned that K.W. had
permitted defendant to have unsupervised contact with Daniel on multiple
occasions when K.W. was away from her home. David Kumar, a Division
caseworker, testified that K.W.'s failure to abide by the visitation order allow ed
defendant, who was still using drugs, to breastfeed the baby during K.W.'s
absences. Kumar stated that K.W. also failed to advise the Division that her
employer had terminated her and it was likely she would soon have to move to
a smaller apartment. Based upon the safety concerns raised by these disclosures,
the Division removed Daniel from K.W.'s care and placed him with the resource
parent with whom he has lived ever since.
The Division attempted to work with defendant to address her severe
substance abuse problem so she could reunite with Daniel. The Division
referred defendant to Dr. Allison Strasser Winston, who was qualified at trial as
an expert in the field of psychology with an emphasis on parental fitness and
bonding, for an evaluation. Dr. Winston testified that defendant used opiates
prior to her pregnancy, during her pregnancy, and continued to use them after
Daniel was removed from her care. Under these circumstances, Dr. Winston
A-2620-18T2
4
opined that defendant could not provide the child with a safe and stable
environment at that time, and lacked the parenting skills necessary to care for a
baby.
Based upon Dr. Winston's examination, the Division referred defendant
for substance abuse evaluations, but she missed several scheduled appointments.
In July 2017, defendant did attend a short-term "detox" program for five days,
but declined to attend or complete the follow-up long-term program. Defendant
did not cooperate with any further services.
The Division arranged for defendant to have weekly, supervised visits
with Daniel at the Division's office. However, defendant's attendance at these
visits was sporadic. After seeing the child on February 26, 2018, defendant did
not visit Daniel again until January 2019, shortly before the trial began.
During this period, defendant essentially disappeared. The Division
attempted to find her at her last known addresses, but was unable to do so. On
May 25, 2018, the Division contacted K.W., who was now living in North
Carolina, but K.W. denied knowing anything about her daughter's whereabouts
or circumstances. The Division later learned that defendant had become
pregnant and had given birth to a daughter in April 2018. At a court appearance,3
3
Defendant tested positive for opiates and methadone at this court appearance.
A-2620-18T2
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defendant told the Division that K.W. had taken her to North Carolina two
months before the baby's birth so she could "get clean." After the baby was
born, defendant left her in K.W.'s care when she returned to New Jersey. Thus,
K.W. obviously knew where defendant was when the Division called seeking to
find defendant. Defendant stated she hid the baby from the Division to prevent
the agency from seeking custody of the child.
Because the Division's plan for Daniel had changed from reunification
with defendant to the termination of her parental rights, the Division attempted
to arrange a bonding evaluation between defendant and her son. The evaluation
was scheduled three times, but defendant failed to appear for any of these
appointments.
In November 2018, the Division submitted an Interstate Compact on the
Placement of Children (ICPC) home assessment request for K.W.'s home in
North Carolina because she had indicated she might be interested in serving as
a caregiver for Daniel. The assessment was still pending at the time of the
February 2019 trial. The Division also assessed several other relatives as
potential placements, but all were ruled out.
Dr. Winston conducted a bonding evaluation between the resource parent
and Daniel. Dr. Winston opined that the child had "a strong and secure
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emotional attachment to the resource parent which is the best kind to have." Dr.
Winston stated that the resource parent was Daniel's "psychological parent,"
who is "the person that he views as his mother and to disrupt that relationship
would be very traumatic to him." Dr. Winston explained that if the bond
between the resource parent and Daniel was broken, he would suffer emotional
problems; "might regress with some of the developmental skills that he had
achieved"; would "likely become very withdrawn [and] insecure"; and "might
exhibit behavioral [and] [c]ognitive issues." She further opined that "disrupting
an attachment relationship at such an early age could impact on [Daniel's] ability
to develop future attachment relationships because he's afraid to trust other
people because he's afraid that this could happen again."
Defendant did not call an expert to contest any of Dr. Winston's
conclusions, and she did not testify on her own behalf 4 or present any other
witnesses. K.W. was present at the trial but, even though she was on defendant's
witness list, she did not testify when given the opportunity to do so.
In his comprehensive opinion, Judge Hely reviewed the evidence
presented at the trial, and concluded that (1) the Division had proven all four
4
On the day the trial began, defendant tested positive for opiates, cocaine,
amphetamine, and methamphetamine.
A-2620-18T2
7
prongs of the best interests test by clear and convincing evidence, N.J.S.A.
30:4C-15.1(a); and (2) termination of defendant's parental rights was in Daniel's
best interests. In this appeal, our review of the trial judge's decision is limited.
We defer to his expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394,
413 (1998), and we are bound by his factual findings so long as they are
supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs.
v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J.
Super. 172, 188 (App. Div. 1993)).
Applying these principles, we conclude that Judge Hely's factual findings
are fully supported by the record and, in light of those facts, his legal conclusions
are unassailable. We therefore affirm substantially for the reasons that the judge
expressed in his well-reasoned opinion, and briefly address the following
matters.
In Point I of her brief, defendant argues that the trial court "abandoned its
obligation to independently assess the reasonableness of [the Division's] May
2017 decision to remove Daniel from his grandmother's home." In making this
argument, defendant points to a single sentence in the lengthy portion of the
judge's oral opinion where he addressed the question of whether the May 2017
change of placement was appropriate under the circumstances. There the judge
A-2620-18T2
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stated, "[a]nd, I don't think it's the [c]ourt's . . . province to second guess that
decision making." Based solely upon this one sentence, defendant asserts Judge
Hely failed to independently review and determine whether the Division had
established a valid reason for its decision to change Daniel's placement after it
discovered that K.W. had left the child unsupervised with defendant on multiple
occasions and did not disclose that she no longer had a job. Instead, defendant
argues that the judge "inappropriately delegated responsibility to the [Division]
on the question of the sufficiency of the [Division's] own evidence[.]"
We conclude that defendant's argument lacks merit because it ignores the
fact that the judge's remark was part of a much longer discussion where the judge
identified the factors cited by the Division to support a change in Daniel's
placement, thoroughly analyzed those factors, and correctly concluded that the
Division's decision was amply supported by the record.
In his oral decision, Judge Hely stated:
Mr. Kumar [the Division's caseworker] testified
that the baby was first placed with maternal
grandmother, [K.W.] [K.W.] had the child in her care
up through . . . May 2017. However, the Division found
several aspects of that placement . . . led to concerns
about the safety of the child and the child was removed
and placed in the present resource home where [Daniel]
has been since May 26, 2017 at the age of two months.
Specifically, the Division's concerns about the maternal
grandmother were that [defendant's] time with the child
A-2620-18T2
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was not being supervised by the grandmother as had
been ordered by the court. Also, the [Division] was
concerned about [K.W.] being untruthful about her
employment status. In addition, there [were] concerns
about [K.W.] abusing alcohol.
Now, the Division has a statutory obligation to
search for possible relatives for placement and that's
under N.J.S.A. 30:4C-12.1. And they did that
specifically in this case. And I find that that was
appropriate. But the removal from the grandmother['s]
ca[r]e in May was also appropriate given the concerns
that the Division had. And I don't think it's the [c]ourt's
. . . province to second guess that decision making.
They had concerns about the safety and health of the
child and therefore I . . . find [s]pecifically that the
Division met its obligations to seek relatives in addition
to other evidence we have on other relatives. And in
fact, the Division has continued to explore the
possibility of placement with the maternal
grandmother, that same one who had the child for the
initial two months of his life. And the Division has
done that by sending out to North Carolina for a[n]
assessment of the home by interstate compact.
[(Emphasis added).]
As is readily apparent from the above quote, the judge did not "abandon"
his "obligation to independently assess the reasonableness of the [Division's]
May 2017 decision to remove Daniel from his grandmother's home." He
fulfilled his duty to provide the parties with a clear statement of his own findings
of fact and conclusions of law. See R. 1:7-4 (requiring the trial judge to "find
A-2620-18T2
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the facts and state [his or her] conclusions of law thereon in all actions tried
without a jury").
Thus, read in the proper context, the judge was merely observing that the
Division's proofs on the issue, which were uncontradicted by defendant at trial,
were so overwhelming that he had no basis to make a contrary determination. If
this point were not already clear, the judge made additional findings concerning
the issue later in his decision. For example, the judge also found:
The defense has contended that the child should be
placed with the maternal grandmother at this late date,
in spite of the fact that the baby was removed from her
care way back in May 2017 for what the . . . [c]ourt
finds to be legitimate reasons. It was not unreasonable
under the circumstances for the Division to change the
placement at that time.
The judge continued by stating:
The credible evidence with respect to the third prong is
that the Division has made more than reasonable efforts
to provide services that have not been taken advantage
of by [defendant]. Given the length of time the child
has been in the loving resource home I do not find that
there is an alternative given our stated goal of
permanent placement.
Because defendant has misread the judge's decision, which plainly stated
the basis for his conclusion that the Division had ample grounds to change
Daniel's placement in May 2017, we reject defendant's contrary contention.
A-2620-18T2
11
Turning to Point III of defendant's brief, she next asserts that in
terminating defendant's parental rights to Daniel, the judge failed to consider the
harm the child would suffer from the likely "severance of Daniel's relationship
with his baby sister." Defendant's argument is based on her view that the
Division should have re-placed Daniel with K.W. after defendant gave birth to
a new baby in April 2018, despite the fact that (1) the Division had previously,
and appropriately, removed the child from K.W.'s care in May 2017 based upon
the legitimate concerns it had concerning her ability to care for him; and (2) both
defendant and K.W. hid the new baby's birth from the Division. This contention
lacks merit.
When the Division accepts a child into its care or custody, it must "initiate
a search for relatives who may be willing and able to provide the care and
support required by the child." N.J.S.A. 30:4C-12.1(a). We have long
recognized "the Division's policy to place children with relatives whenever
possible." N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 527
(App. Div. 2003). Yet, "there is no presumption in favor of placement with
relatives[.]" N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super.
568, 580 (App. Div. 2011). Nonetheless, the Division may not seek termination
A-2620-18T2
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of parental rights and adoption by foster parents without first exploring available
relative placements. Ibid.
The Division's statutory obligation requires prompt identification of
relatives and notice to them of the results of any investigation. Ibid. This
"obligation does not permit willful blindness and inexplicable delay" in the
approval or disapproval of a relative known to the Division. Id. at 582. New
Jersey, however, has a strong public policy in favor of permanency. In re
Guardianship of K.H.O., 161 N.J. 337, 357 (1999). A delay in permanency
based on the Division's failure to comply with statutory obligations is warranted
only when it is in the child's best interests. K.L.W., 419 N.J. Super. at 581-83.
Thus, the trial court ultimately must determine whether placement with the
relative serves the child's best interests. Id. at 581; M.F., 357 N.J. Super. at 528.
However, we have viewed the Division's obligations under N.J.S.A.
30:4C-12.1 as an additional aspect of the four-prong "best interests" test in
N.J.S.A. 30:4C-15.1(a). Ibid. "[A]ssessment of relatives is part of the
Division's obligation to consult and cooperate with the parent in developing a
plan for appropriate services that reinforce the family structure." K.L.W., 419 N.J. Super. at 583 (citing N.J.S.A. 30:4C-15.1(c)(1)). If the Division "fails to
comply with its obligation [under N.J.S.A. 30:4C-12.1], the judicial
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determinations that follow are made without information relevant to the best
interests of the child." Id. at 581. However, even when the Division fails to
comply with that obligation, "[d]elay of permanency or reversal of termination
. . . is warranted only when it is in the best interests of the child." Ibid.
Applying these principles, we are unpersuaded that the Division failed to
fulfill its obligations under N.J.S.A. 30:4C-12.1 or that a remand is required as
suggested by defendant. Contrary to defendant's contention, "[t]he reality is
that, no matter how fit or willing a proposed relative may be, a child will, in
some instances, be better off remaining in a successful foster placement." N.J.
Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 85 (App. Div. 2013).
That is clearly the case here. As discussed above, the Division determined
in May 2017 that K.W. was not an appropriate placement for Daniel and, as
Judge Hely correctly found, the record amply supports that decision. While
K.W. belatedly expressed an interest in again being considered as a placement
alternative, her request came much too late in the process. As the uncontradicted
psychological expert testimony presented at trial demonstrated, Daniel is firmly
bonded with his resource parent, who has cared for him since May 2017. The
resource parent is Daniel's psychological parent and we discern no basis for
A-2620-18T2
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disturbing Judge Hely's reasoned determination that separating the child from
her would clearly harm the child.
In making this decision, the judge recognized that Daniel has a new sister,
who he does not know, but determined that this was not a sufficient reason to
forestall a decision on the termination of defendant's parental rights. Nothing in
the record indicates that it would be in Daniel's best interests to delay
permanency. Daniel is entitled to a permanent, safe, and secure home. We
acknowledge "the need for permanency of placements by placing limits on the
time for a birth parent to correct conditions in anticipation of reuniting with the
child." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111
(App. Div. 2004). As public policy increasingly focuses on a child's need for
permanency, "[t]he emphasis has shifted from protracted efforts for
reunification with a birth parent to an expeditious, permanent placement to
promote the child's well-being." Ibid. (citing N.J.S.A. 30:4C-11.1). That is
because "[a] child cannot be held prisoner of the rights of others, even those of
his or her parents. Children have their own rights, including the right to a
permanent, safe and stable placement." Ibid.
Here, the judge properly focused on Daniel's best interests, rather than
those of defendant or K.W., who is not a party to this action. Because the judge
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correctly weighed the benefits against the harms of a termination judgment as
required by N.J.S.A. 30:4C-15.1(a)(4), and concluded that Daniel deserves
permanency at this point in his young life, we affirm the judgment terminating
defendant's parental rights.
In so ruling, we reject defendant's arguments in Point II of her brief that
her trial counsel did not provide her with effective legal representation. To
establish an ineffective assistance of counsel claim in matters involving the
termination of parental rights, a defendant must meet the two-prong test
established in Strickland v. Washington, 466 U.S. 668, 687 (1984), which
requires a showing that trial counsel's performance was deficient and that, but
for the deficient performance, the result would have been different. N.J. Div. of
Youth & Family Servs. v. B.R., 192 N.J. 301, 307-09 (2007) (citing Strickland,
466 U.S. at 687, 694). The defendant bears the burden of demonstrating a
constitutional violation, as the court will presume that counsel acted
competently. United States v. Chronic, 466 U.S. 648, 658 (1984). Defendant
has failed to meet that burden here.
Defendant baldly argues that her attorney did not adequately review the
Division's records and, as a result, neglected to introduce a number of documents
that she asserts would have bolstered her claim that the Division erred in
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changing Daniel's placement in May 2017. 5 However, while these records
confirm that prior to moving the child to his current home, nothing seemed amiss
at K.W.'s residence, they also reinforce the testimony of the Division's two
caseworkers that, among other things, the Division discovered that K.W.
violated the terms of the safety protection plan by allowing defendant to have
unsupervised access to the child. Contrary to defendant's unsupported claim that
Kumar unilaterally removed the child from K.W.'s care in a "fit of pique," the
documents further demonstrate that the Division adequately documented its
reasons for this change of placement. Under these circumstances, we discern no
basis for second-guessing defense counsel's tactical decision not to attempt to
rely upon these documents.
Defendant also argues that her trial attorney was ineffective because she
did not make a request that North Carolina expedite its home assessment review
of K.W.'s residence, or should have argued that an assessment was not required.
However, any request to expedite or end the review process would not have
altered the fact that by the time K.W. belatedly attempted to re-enter the picture,
Daniel was firmly bonded with his resource parent. As discussed above, the
5
Defendant filed a motion to supplement the record with these documents and
we now grant that motion.
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unrebutted expert testimony showed that the child would suffer enduring harm
if that bond were broken. Therefore, we reject defendant's contention on this
point.
Affirmed.
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