NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.N.G and N.R

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3689-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

L.N.G.,

          Defendant,

and

N.R.,

          Defendant-Appellant.


IN THE MATTER OF THE
GUARDIANSHIP OF K.R.
and K.R.,

          Minors.


                   Submitted January 30, 2020 – Decided March 12, 2020

                   Before Judges Alvarez and DeAlmeida.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Camden County,
            Docket No. FG-04-0115-19.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Robyn A. Veasey, Deputy Public Defender,
            of counsel; Robert W. Ratish, Designated Counsel, on
            the briefs).

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

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minors (Nancy P. Fratz, Assistant Deputy
            Public Defender, of counsel and on the brief).

PER CURIAM

      Defendant N.R. (Tom) 1 and L.N.G.2 (Mary) had two children, K.R.

(Robert), born June 2016, and K.R. (James), born November 2017. They resided

as a family with Mary's two older children J.G. (Michael) and N.G. (Susan).

Susan died on July 18, 2017, from severe injuries as a result of a physical assault.

Tom was charged with the four-year-old's killing and was pending trial when

the guardianship proceedings filed by plaintiff the Division of Child Protection



1
  We protect the family's anonymity by use of pseudonyms pursuant to Rule
1:38-3(12).
2
  L.N.G. surrendered her parental rights mid-trial and is thus not involved in the
appeal.
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and Permanency (Division) moved forward. During the assault, two of Susan's

teeth were knocked out, and her blood splattered the apartment hallway,

bathroom door, and bathtub. Mary later reported that Tom told her if she called

police, her "whole life would be f----d up." The assault occurred some two days

before Mary called 911 after discovering Susan's unconscious body on the floor.

When the homicide occurred, Tom had been restrained from contact with Mary

or the children. Mary entered a guilty plea to second-degree endangering the

welfare of a child,  N.J.S.A. 2C:24-4(a), involving Susan's death.

      Tom now appeals the April 12, 2019 termination of his parental rights.

We affirm. He alleges the following errors:

            POINT I:
            THE TRIAL COURT ERRED IN FINDING THAT
            [THE DIVISION] EXPLORED ALTERNATIVES TO
            TERMINATION      OF     PARENTAL RIGHTS
            BECAUSE THE DIVISION DID NOT FULLY
            INVESTIGATE     [Tom's]   MOTHER AS   A
            POTENTIAL PLACEMENT FOR THE CHILDREN.

            POINT II:
            THE TRIAL COURT ERRED IN FINDING THAT
            TERMINATION OF PARENTAL RIGHTS WILL
            NOT DO MORE HARM THAN GOOD BECAUSE
            THE DIVISION HAS NO ADOPTIVE HOME FOR
            [Robert], AND THE COURT DID NOT CONSIDER
            THE RELATIONSHIP BETWEEN THE SIBLINGS
            AND THE DAMAGE THAT WOULD RESULT IF
            THE     CHILDREN    LOST  THEIR   FAMILY
            CONNECTIONS.

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                                       I.

      We first address Tom's second point, that the trial court erred in its

assessment of the fourth prong of the statutory test, that "[t]ermination of

parental rights will not do more harm than good."  N.J.S.A. 30:4C- -15.1(a)(4).

The basis for Tom's contention is that Michael and Robert, who were placed

together since Susan's death, will be separated because the Division had to

explore a select home adoptive placement for Robert. That is no longer the case.

The Division has reported, pursuant to Rule 2:6-11(f), that the boys have been

placed together in a preadoptive home. The argument is moot and does not

require additional discussion.

                                      II.

      The third prong of the guardianship statute requires the Division to

consider "alternatives to termination of parental rights . . . ."       N.J.S.A.

30:4C-15.1(a)(3).   Tom's principal allegation is that the Division did not

sufficiently explore alternatives to termination because it did not adequately

investigate Tom's mother (Barbara) nor complete its investigation of several

other family members that he and Mary suggested as possible placements.

      Once children become the responsibility of the Division, it is statutorily

obligated to search for family members "willing and able to provide the care and


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support required by the child."      N.J.S.A. 30:4C-12.1(a).     We combine our

discussion of the trial court's decision, the relevant circumstances found in the

record, and applicable precedents into one discussion.

      In her termination decision, the trial judge noted that Barbara testified she

was interested in adopting the children, not in kinship legal guardianship (KLG).

As we said in New Jersey Division of Youth & Family Services v. K.L.W.,  419 N.J. Super. 568, 581 (App. Div. 2011), the Division must balance "'the need for

a timely resolution' against the requirement of a disposition that is in the best

interests of the child." (quoting N.J. Div. of Youth & Family Servs. v. M.F.,  357 N.J. Super. 515, 527 (App. Div. 2003)). The best interests may, however,

require investigation into placement with family members thus delaying the

completion of guardianship proceedings. In this case, the Division did conduct

an investigation of Barbara, and when ordered to reassess her after her appeal

of the issuance of a rule-out letter, did so. The Division was unable to complete

the home inspection at Barbara's own request because she claimed she was

getting a bigger apartment and wanted to wait until then.

      The judge found, as supported by the record, that when the Division was

initially involved with the family, Barbara was barred from meetings between

Mary and Division workers because Barbara was highly defensive of her son


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and would dominate the conversation over Mary. Barbara denied the extent of

her son's violent character, even on the stand after the killing, although she

ultimately admitted having been aware of his problems. Barbara also denied

that she had ever struck Susan with a belt, contrary to Susan's recorded interview

statement taken before her death.

      The judge also observed that before James's birth, the Division met with

Mary, Barbara, and Tom's cousin A.B. The Division informed the women that

it planned to take custody of James, who was born after Susan's killing. Despite

being forewarned, or perhaps because of it, Mary delivered the baby in a

Philadelphia hospital, and attempted to transfer custody to A.B. in a New Jersey

courthouse. When asked about the baby's whereabouts at that time, neither she

nor A.B. would respond. Barbara also denied knowing where the baby could be

found, although she admitted being present at the child's birth. Eventually,

James was located in A.B.'s home.

      The judge characterized Barbara's testimony as incredible. The judge

described her as evasive, having "a selective memory," and inconsistent in her

testimony about specific events. The judge, limiting her discussion to Michael

and Robert, despite her stated reservation about Barbara, made no specific




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finding that the children were at risk if placed with her. This allowed the

Division to continue its investigation into her home.

      The judge noted that when the workers went to Barbara's home to attempt

to reinvestigate after the rule-out letter was overruled, Barbara said that there

was no point entering because she planned to move somewhere larger so that

she could take the boys into her home. In other words, at the time of the

termination hearing, the investigation was delayed due to Barbara's failure to

obtain housing that would meet the children's needs.

      We hasten to add that our discussion of this point does not apply to James.

James has been in the same resource home, with a family who wishes to adopt

him, since birth. According to the Division's expert, James is bonded to that

parent, although no comparative evaluation could be made because Tom was

restrained from contact with the children. Tom has never met James. James is

not specifically mentioned in Tom's brief as one of the children whose best

interests would not be served by termination; it refers to only Robert with regard

to relative placement.

      That parents name relatives for possible placement should not prevent

guardianship proceedings from going forward. K.L.W.,  419 N.J. Super. at 582.

There were a number of relatives whom the Division explored; the trial judge


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touched upon each of those names in her decision. The disposition as to each

did not involve a rule-out letter—but that is not necessary in all circumstances.

In this case, the Division attempted to contact relatives of both Tom and Mary,

but these were individuals who were either ruled out because of issues such as

domestic violence within the home, were nonresponsive, refused, or for other

reasons the investigation could not continue.

       Barbara wished to adopt the children, at least in part because she wanted

to raise them free from contact with the Division. That means the guardianship

proceedings need not be halted. See N.J. Div. of Youth & Family Servs. v. P.P.,

 180 N.J. 494, 512-13 (2004) (holding that KLG should only be considered when

adoption is not an option); N.J. Div. of Youth & Family Servs. v. T.I.,  423 N.J.

Super. 127, 130 (App. Div. 2011) ("[W]hen a caregiver in a case brought by the

[Division] unequivocally asserts a desire to adopt, the finding required for a

KLG that 'adoption of the child is neither feasible nor likely' cannot be met.") .

       There is no question that family placement is a more desirable alternative,

all factors being equal, but is not a presumption. K.L.W.,  419 N.J. Super. at
 580.    K.L.W. instructs that the Division must not be willfully blind or

inexplicably delay reviewing a relative known to the Division, especially one

who has custody of the child's siblings. Id. at 582. In that case, the Division


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did not investigate the children's maternal grandparents for placement at the

request of the children's mother. Id. at 571. However, she eventually asked the

Division to consider her parents for placement, and the Division did not act,

inconsistent with the best interests of the children. Id. at 573-74, 581.

      In this case, Barbara's interactions with the Division before Susan's death

were problematic.     K.L.W. states:    "reversal of termination based on the

Division's noncompliance with its statutory obligations is warranted only when

it is in the best interests of the child." Id. at 581. Even if Tom's point that the

Division failed to meet its statutory obligation had merit, which it does not,

Barbara's decision to refuse a home inspection—and failure to thereafter obtain

appropriate housing so it could be completed—should not have halted the

termination of parental rights. To have done so would not have been in the

children's best interests. The decision in this case was not premature.

      Affirmed.




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