NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.M. and V.B and E.N

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4577-18T2
A-4578-18T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

M.M. and V.B.,

Defendants-Appellants,

and

E.N.,

Defendant.
__________________________

IN THE MATTER OF THE
GUARDIANSHIP OF K.M.N.,
Z.B., Za.B., L.B., Zar.B., and
Z.U.B.,

Minors.
__________________________

Submitted February 4, 2020 – Decided March 3, 2020
Before Judges Yannotti, Hoffman and Currier.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0206-18.

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

Joseph E. Krakora, Public Defender, attorney for
appellant V.B. (Robyn A. Veasey, Deputy Public
Defender, of counsel; James Daniel O'Kelly,
Designated Counsel, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Sara M. Gregory, Deputy Attorney
General, on the brief).

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

PER CURIAM

This Title 30 guardianship matter brought by the Division of Child

Protection and Permanency (the Division) returns to our court following a

limited remand we ordered in a published opinion issued on April 2, 2019. See

N.J. Div. of Child Prot. & Permanency v. M.M., 459 N.J. Super. 246 (App. Div.

2019). In our opinion, we held the record contained sufficient evidence to

support the trial court's findings that the Division met its burden on the first two

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prongs of the termination statute, N.J.S.A. 30:4c-15.1(a); however, we

remanded the case with respect to prongs three and four of the statute, finding

the record "insufficiently clear" concerning the issues of adoption and the

potential alternative of Kinship Legal Guardianship (KLG). Id. at 257.

On remand, the same judge who presided over the guardianship trial heard

testimony from the two long-term caretakers 1 for the six children involved in

this case. After both caretakers provided testimony confirming their intention

to adopt the children in their respective care, notwithstanding their

understanding of the availability of KLG, the judge reaffirmed her original

determination to terminate parental rights. Defendants M.M. (the mother) and

V.B. (the father) now appeal from that second judgment of guardianship. We

affirm.

The Facts

We begin with a summary of the pertinent facts, which we presented in

greater detail in our published opinion. Id. at 252-55. The mother is the

1
The caretakers – the children's maternal grandmother and maternal great aunt
– did not testify at the initial guardianship trial.

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biological mother of seven children: X.M. (Xander),2 born in 2008; K.M.N.

(Kevin),3 born in 2009; Z.B. (Zarah), born in 2011; Za.B. (Zena), born in 2013;

L.B. (Larry), born in 2015; Zar.B. (Zadie), born in 2016; and Z.U.B. (Zelda),

born in 2017.

The mother and the father are married to each other. He is the father of

the mother's youngest five children (Zarah, Zena, Larry, Zadie, and Zelda). As

of the time of the guardianship trial in 2018, the Division had been involved

with the mother and her children for about eight years, and with the father for

approximately six years. The Division initially removed Xander and Kevin from

the mother's care in February 2010, after receiving reports that she left Kevin on

his paternal relatives' porch unattended. Those two sons were temporarily

returned to the mother's custody in October 2015. Meanwhile, Zarah, Zena, and

Larry were born, and defendants married.

2
D.B. is the father of Xander; in January 2017, the court placed Xander in his
father's custody.
3
Defendant E.N. is the father of Kevin; at the conclusion of the initial
guardianship trial, the judge terminated E.N.'s parental rights as to Kevin. E.N.
did not attend the trial nor did he appeal from the decision to terminate his
parental rights.

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In July 2016, the Division removed all of the children from defendants'

care, after the mother tested positive for marijuana upon Zadie's birth, and

caseworker interviews of the children raised concerns of physical abuse. The

Division placed Kevin and Larry with their maternal grandmother, and placed

Zarah, Zena, and Zadie with their maternal great aunt. In September 2017, the

Division filed its guardianship complaint in this matter. That same month, the

mother gave birth to Zelda, who the Division removed from defendants' care,

placing her with her maternal grandmother and adding her to the guardianship

proceedings in an amended complaint.

At the initial four-day trial, the Division presented substantial evidence

reflecting defendants' significant struggles, which included their repeated

marijuana use, unemployment, lack of stable housing, and inadequate

supervision of their children, including an incident where Larry sustained

second-degree burns from a radiator.

The trial judge noted the close bonds between the caretakers and the

children in their respective homes and found they both want to adopt the children

in their care. The judge found the termination of the parents' right s to enable

such adoption was in the children's best interests.

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In our previous opinion, we affirmed the trial judge's decision regarding

the first two prongs of the statute, N.J.S.A. 30:4C-15.1(a). Id. at 257. Regarding

prongs three and four, we found the record deficient, and explained that "the

factual record, which is based upon a series of somewhat inconsistent and

conditional hearsay statements, is insufficiently clear with respect to issues

concerning adopting and the potential alternatives of KLG." Ibid.

Specific to prong three, we found the record supported the trial judge's

findings that the Division made "reasonable efforts" to provide services to both

parents; however, we found the record inadequate as to the second clause of

N.J.S.A. 30:4C-15.1(a)(3), that "the court has considered alternatives to

termination of parental rights." Id. at 258. We acknowledged the caregivers

should not function as the ultimate decision maker to the child's fate, but

emphasized their preference was not categorically irrelevant. Id. at 263-64. We

concluded their decision must be an informed decision and the trial record must

contain evidence of "sufficient clarity and evidentiary reliability" of their

intentions. Id. at 265.

Interpreting the Kinship Legal Guardianship Notification Act (the KLG

Notification Act),4 we held "the caregiver must be fully informed of the potential

4 N.J.S.A. 30:4C-89 to -92
A-4577-18T2
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benefits and burdens of KLG before deciding whether he or she wished to adopt.

Once he or she is provided with that comparative information, the caretaker's

preference between the two alternatives should matter." Id. at 262-63. We

construed "the KLG statute and the Notification Act to make a caregiver's

preference, if any, of KLG over adoption a relevant but not dispositive

consideration. The caregiver's consent to adopt should be not only informed,

but also unconditional, unambiguous, and unqualified." Id. at 264. As a result,

we remanded the case for the trial court to:

(1) [D]evelop the trial record with more clarity as to
whether each resource parent unequivocally,
unambiguously, and unconditionally wishes to adopt
the children in her care, regardless of the potential
alternative of [KLG]; and (2) obtain explicit findings
by the trial court addressing KLG as it relates to the
feasibility of adoption and the unequivocal consent of
the resource parents to adoption.

[Id. at 252.]

In all other respects, we upheld the trial judge's decision. Ibid. Additionally,

we deferred "to the trial judge's discretion as to what forms of proof would be

appropriate for the remand hearing." Id. at 275.

The Remand Proceedings

On May 23, 2019, the trial judge held the remand hearing. The Division

presented testimony from the children's caretakers, who both confirmed their

A-4577-18T2
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awareness of KLG and their continued desire to adopt the respective children in

their care.

When asked about her intentions regarding Larry, Kevin and Zelda, the

maternal grandmother replied that she wants "to adopt them . . . I'm very sure.

I'm solid on it." She said Division workers explained the differences between

KLG and adoption to her and she had understood the difference "for a long

time." She stated she is "very sure" she wants to adopt the children, rather than

KLG. She understood she was free to refuse to adopt the children and

recognized the Division would not remove the children under a KLG, unless it

was to return them to their parents. After adoption, she has no intention of

changing the children's names and expects to allow the children to have

continued contact with their parents.

When asked about her intentions regarding Zarah, Zena, and Zadie, the

maternal great aunt replied, "I'm committed to adopting them." She stated she

understands the differences between adoption and KLG and gave the matter

consideration. She denied the claim that she previously said she preferred KLG

over adoption. She confirmed she spoke with a Division caseworker and her

lawyer in the previous month regarding the differences between KLG and

adoption and said she previously spoke to caseworkers numerous times

A-4577-18T2
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regarding KLG. She did not feel pressured to adopt and intends to permit

defendants to visit the children.

On June 4, 2019, the trial judge issued a written opinion terminating the

parental rights of both parents. The judge held the Division proved prongs three

and four of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Under

prong three, the judge emphasized the Division's efforts to work with both the

mother and the father for years and yet they failed to maintain appropriate

housing for their children. Additionally, the judge cited the opinion of Dr. Karen

Wells that it is unlikely in the foreseeable future that the mother or the father

would be equipped, either emotionally or psychologically, to safely care for their

children.

Addressing the second clause of prong three – the alternatives to

termination of parental rights – the judge found:

Both foster parents testified at a remand hearing as to
their wishes considering adoption versus KLG. Their
testimony was credible and it confirmed that each had
discussed the differences between KLG and adoption
on many occasions with the Division and each foster
parent understood those differences. It was evident that
[the maternal great aunt] made an informed and
thoughtful decision. She wanted closure for all parties.
She was tired of the roller coaster and feared that with
KLG she would be brought back and forth into Court
by the parents and this would not be good for the
children. Significantly, she was concerned that under

A-4577-18T2
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KLG, if something were to happen to her, the children
would once again be in the system but if she adopted
she could carefully choose a guardian for the children.
Her decision to adopt was unconditional, unambiguous
and unqualified.

The judge noted that the maternal great aunt refuted the claim of the father's

expert, Dr. Barry Katz, who previously reported that "she preferred KLG over

adoption."

The judge further found that both resource parents believed adoption was

the best option for the children to prevent the "back and forth" nature of KLG.

The judge concluded the Division met its burden by clear and convincing

evidence and "there are no alternatives to termination of parental rights" because

the resource parents clearly desire to adopt the children in their care.

Under the fourth prong, the judge found the Division met its burden of

proving by clear and convincing evidence that termination of defendants'

parental rights, as opposed to KLG, was in the best interest of the children, "who

have languished in the foster care system for years." The judge explained,

The expert testimony of Dr. Wells clearly established
that any harm to the children . . . can be mitigated
through therapeutic services and their foster parent.
Otherwise she testified that none of the . . . children will
suffer any harm from termination of their parents'
parental rights. Both foster parents testified that they
will continue to foster a relationship with the parents.

A-4577-18T2
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On June 25, 2019, both M.M. and V.B. filed this appeal, challenging the

trial court's decision to terminate their parental rights.

II.

Our scope of review on appeal from an order terminating parental rights

is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)

(citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We will uphold

a trial judge's factfindings if they are "supported by adequate, substantial, and

credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527,

552 (2014) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104

(2008)). No deference is given to the court's "interpretation of the law" which

is reviewed de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012) (citing N.J.

Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010)).

We accord "deference to factfindings of the family court because it has

the superior ability to gauge the credibility of the witnesses who testify before

it and because it possesses special expertise in matters related to the family."

N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2014) (citing

Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Only when the trial court's

conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate

court intervene and make its own findings to ensure that there is not a denial of

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justice." E.P., 196 N.J. at 104 (quoting G.L., 191 N.J. at 605). We also accord

deference to the judge's credibility determinations "based upon his or her

opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs.

v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing Cesare, 154 N.J. at 411-

13).

When terminating parental rights, the court focuses on the "best interests

of the child standard" and may grant a petition when the four prongs set forth in

N.J.S.A. 30:4C-15.1(a) are established by clear and convincing evidence. In re

Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). "The four criteria

enumerated in the best interests standard are not discrete and separate; they

relate to and overlap with one another to provide a comprehensive standard that

identifies a child's best interests." Id. at 348.

N.J.S.A. 30:4C-15.1(a) requires the Division to 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 separating the
child from his resource family parents would cause
serious and enduring emotional or psychological harm
to the child;

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(3) The division 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 court has considered alternatives to termination of
parental rights; and

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

The third prong of the best-interests-of-the-child standard, in addition to

evaluating the efforts of the Division in providing services to the parents,

requires that the court consider alternatives to the termination of parental rights.

See N.J.S.A. 30:4C-15.1(a)(3). Under prong three, an alternative to termination

is KLG, which allows a relative to become the legal guardian, committed to care

for the child until adulthood, without stripping parental rights. N.J. Div. of

Youth & Family Servs. v. P.P., 180 N.J. 494, 508 (2004). KLG resulted from

the Legislature's realization "that an increasing number of children who cannot

safely reside with their parents are in the care of a relative or family friend who

does not wish to adopt the child or children." N.J. Div. of Youth & Family

Servs. v. L.L., 201 N.J. 210, 222-23 (2010). See N.J.S.A. 3B:12A-1(a) to (b).

In P.P., our Supreme Court, while acknowledging the benefits of KLG,

emphasized "New Jersey's strong public policy in favor of permanency." 180 N.J. at 510 (quoting In re Guardianship of K.H.O., 161 N.J. 337, 357 (1999)).

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The Court explained that KLG is available "as a more permanent option than

foster care when adoption 'is neither feasible nor likely' and '[KLG] is in the

child's best interests.'" Id. at 512 (quoting N.J.S.A. 3B:12A-6(d)(3) to (4)). But

when the permanency provided by adoption is available, KLG cannot be used as

a defense to termination of parental rights. N.J. Div. of Youth and Family Servs.

v. D.H., 398 N.J. Super. 333, 341 (App. Div. 2008) (holding that KLG is not

available when adoption is feasible or likely). Indeed, this court has recognized

that when a caretaker "unequivocally" asserts a desire to adopt, the standard to

impose a KLG arrangement that adoption is neither feasible nor likely, cannot

be satisfied. N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127,

130 (App. Div. 2011).

As we have already held in this case, "The decision of a resource parent

to choose adoption over KLG must be an informed one." M.M., 459 N.J. Super.

at 260. "The Legislature has made it clear that relative caretakers who might be

candidates for KLG must be adequately informed of the nature of such

arrangements and the financial and other services for which they may be

eligible." Id. at 261.

To accomplish this objective, the Legislature enacted the KLG

Notification Act, N.J.S.A. 30:4C-89 to -92, in 2005. The Legislature enacted

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the KLG Notification Act "to ensure that individuals who may be eligible to

become kinship legal guardians are aware of the eligibility requirements for, and

the responsibilities of, kinship legal guardianship and . . . [also] the services

available to kinship legal guardians in the State." N.J.S.A. 30:4C-90(e). To

accomplish this goal, the Division 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 guardians of the full-
range of services for which kinship legal guardians may
be eligible and the eligibility requirements for those
services.

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

As we previously explained in this case,

A logical implication of the Notification Act is that the
caregiver must be fully informed of the potential
benefits and burdens of KLG before deciding whether
he or she wishes to adopt. Once he or she is provided
with that comparative information, the caretaker's
preference between the two alternatives should
matter. . . . The caregiver's consent to adopt should be

A-4577-18T2
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not only informed, but also unconditional,
unambiguous, and unqualified.

[M.M., 459 N.J. Super. at 263-64.]

On this appeal, following our remand, the mother and the father both argue

the record does not support the trial judge's finding that the decisions of the

resource parents to adopt the children in their care were "informed" decisions.

We disagree.

At the remand hearing, both resource parents testified for the first time.

The maternal grandmother explained she does not like KLG because if

something had happened to her, the children would enter back into the system.

She wants to adopt the children so she has the ability to choose who could care

for the children if something happens to her. Additionally, she wants closure of

the entire situation and permanency for the children. The maternal great aunt

testified she wants to adopt the children because she wants a more stable

environment than KLG. Both resource parents confirmed the Division informed

them of the differences between KLG and adoption multiple times and they both

want to pursue adoption.

The trial judge reviewed each resource parent's testimony and found they

both spoke to the Division regarding KLG and adoption multiple times prior to

the remand hearing. The judge found the record showed the resource parents

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understood the differences between KLG and adoption, and both made an

"informed, unconditional, unambiguous, and unqualified" decision to adopt. We

agree.

Both resources parents chose to testify at the remand hearing, which

resolved the original hearing's evidentiary deficiencies; thus, we find the trial

judge's factual findings are supported by substantial credible evidence in the

record. R.G., 217 N.J. at 552. The trial judge saw and heard each resource

parent's testimony and came to a well-reasoned conclusion. We see no need to

disturb the factual findings that the resource parents understood the differences

between KLG and their informed intention to adopt was unconditional,

unambiguous, and unqualified. M.M., 459 N.J. Super at 264. We conclude the

record contains sufficient credible evidence to support the trial judge's finding

that the Division established prongs three and four of the "best interests" test

with clear and convincing evidence.

Any arguments not addressed lack sufficient merit to warrant discussion

in a written opinion. R. 2:11-2(e)(1)(E).

Affirmed.

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