NEW JERSEY DIVISION OF CHILD PROTECTION AND PEMANENCY v. M.S-B and T.B

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                                NOT FOR PUBLICATION WITHOUT THE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-1108-20

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PEMANENCY,

          Plaintiff-Respondent,

v.

M.S-B.,

          Defendant-Appellant,

and

T.B.,

     Defendant.
_________________________

IN THE MATTER OF THE
GUARDIANSHIP OF A.S.,
a minor.
_________________________

                   Submitted September 27, 2021 – Decided October 25, 2021

                   Before Judges Rothstadt and Mayer.
           On appeal from the Superior Court of New Jersey,
           Chancery Division, Family Part, Camden County,
           Docket No. FG-04-0173-20.

           Joseph E. Krakora, Public Defender, attorney for
           appellant (Dianne Glenn, Designated Counsel, on the
           briefs).

           Andrew J. Bruck, Acting Attorney General, attorney for
           respondent (Donna Arons, Assistant Attorney General,
           of counsel; Julie B. Colonna, Deputy Attorney General,
           on the brief).

           Joseph E. Krakora, Public Defender, Law Guardian,
           attorney for minor (Meredith Alexis Pollock, Deputy
           Public Defender, of counsel; Melissa R. Vance,
           Assistant Deputy Public Defender, of counsel and on
           the brief).

PER CURIAM

     Defendant M.S-B. (Moira)1 appeals from a December 1, 2020 order

terminating her parental rights to her son A.S. (Adam), who was born in 2016,

and awarding guardianship to plaintiff, the Division of Child Protection and

Permanency (the Division). The Division removed the child after local police

found defendant and Adam living in a car for at least five days, even though

they had a place to stay with defendant's mother, J.S. (Jennifer), with whom

Adam has been living and who is now pursuing Adam's adoption.          Judge



1
   To protect privacy interests and for ease of reading, we use initials and
pseudonyms for the parties and the children. R. 1:38-3(d)(12).
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Francine I. Axelrad presided over the trial, entered the guardianship judgment,

and rendered a thoughtful and comprehensive oral decision that she placed on

the record before entering the judgment under appeal.

      On appeal, Moira argues Judge Axelrad's determination that the Division

proved each prong of the best interests test under  N.J.S.A. 30:4C-15.1(a) by

clear and convincing evidence was in error. She also contends for the first time

that the judge "denied [Moira's] due process protections in both the protective

services litigation and the guardianship proceedings when [the court] held

hearings in her absence and denied her access to a lawyer . . . prior to the

guardianship trial."   We are unpersuaded by these contentions and affirm

substantially for the reasons stated by Judge Axelrad in her comprehensive oral

decision.

      Moira is the mother of Adam 2 and his four siblings, a twenty-year-old

sister and three brothers ranging from ten to twenty-two years old. Jennifer has

sole custody of the minor children, except Adam, but, as noted, he was placed

in his grandmother's care by the Division through most of this litigation.




2
  The trial judge entered a default judgment against Adam's father, T.B. who
did not appear in the litigation and who has not filed an appeal from the
judgment.
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      We need not repeat here the facts found by the trial judge. The evidence

of Moira's inability to care for Adam, provide him with a safe home, or even to

maintain a constant presence in his life is set forth in detail in Judge Axelrad's

oral decision that spans sixty-three transcript pages. So too are the details of

what are clearly, albeit undiagnosed and untreated,3 mental health issues that

prevent Moira from safely parenting Adam despite their mutual affection for

each other, as well as the evidence of Adam's flourishing in the care of his

grandmother and the company of his siblings.

      Based on her findings from the credible testimony presented by the

Division's representative and its expert, Judge Axelrad found that the Division

met all four prongs of the "best interests of the child" standard enumerated in

 N.J.S.A. 30:4C-15.1(a). Specifically, as to the first prong, the judge held that

the Division established by clear and convincing evidence that Adam's health

and safety were endangered when Moira placed Adam in risk of harm by

sleeping in a car for five days when they had a safe home to live in, and then

continued to place him at risk of harm by her failure to address her apparent

mental health issues despite the Division's efforts to provide her with services.




3
    Moira was evaluated in the Title Nine action but the mental health
professionals' diagnosis was not testified to at the guardianship trial.
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      As to the second prong, Judge Alexrad found that the Division established

by clear and convincing evidence that Moira was unwilling to remove the risks

to Adam's health and safety.        Specifically, the judge found that "[Moira]

attended only limited sessions of therapy, and up through her testimony at trial

has consistently stated that she didn't need the services, doesn't want the

services, [and] has refused to cooperate with the Division for services."

      On the third prong, Judge Alexrad held that the Division established by

clear and convincing evidence that it had provided reasonable efforts to reunify

Moira and Adam. The judge also found from the Division's witness's unrefuted

testimony "that [Jennifer] wants adoption over [Kinship Legal Guardianship

(KLG)], because she realizes that she needs to be the parent in control and to

provide this child the finality, and permanency, and stability that she can't if

[Moira] is stepping in and out . . . of his life."

      Under the fourth prong, Judge Alexrad held that the Division established

by clear and convincing evidence that in "balancing the two relationships" and

considering the entire trial record that Adam "will not suffer a greater harm in

termination of ties with his mother, [than] from the permanent disrupti on of his

relationship with [Jennifer,] his maternal grandmother." The judge recognized

the love between Moira and Adam but noted that "it's clear that [Adam] can't be

returned to [Moira]" because he "needs permanency and stability." She further

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found that Moira is "unable to provide that, perhaps in large part, based on her

mental illness."

      Despite not having the benefit of expert testimony about Moira's mental

health issues due to her failure to cooperate with evaluations, Judge Axelrad

concluded that the Division demonstrated by clear and convincing evidence

from the Division's records that were admitted into evidence, without objection,

that Moira was "diagnosed with [psychosocial] problems" and that providers

that conducted the psychological and psychiatric evaluations during the Title

Nine proceedings recommended therapy and medication management.                 The

judge found that while she "do[es] not have expert testimony of a psychologist,

because [Moira] chose not to be evaluated by the Division's expert fo r

psychological evaluation or a bonding evaluation," in this action, it is "clear that

mental health is an issue." Though without an evaluation she could not make a

specific finding that Moira could not meet Adam's needs in the future, she noted

that she was able to "find based on the record" the "Division's significant

concern[s] with [Moira's] mental health . . . housing and employment"

instability. In addition, the judge's own assessment of Moira's testimony, which

she found was "for the most part was rambling," indicated that the Division's

concerns were warranted. For instance, the judge noted that Moira "didn't

answer questions, she was unfocused [and] the longer she testified, [the] more

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pronounced [was Moira's] pattern of constant repetition of the question, or one

word of the question, and then responding with a non-sequitur." The judge

believed that Moira was not "trying to be evasive," but found her responses to

be "childlike, simplistic, [and] disconnected."

      Our review of a trial judge's decision in these cases is limited. We defer

to her expertise as a Family Part judge, Cesare v. Cesare,  154 N.J. 394, 412

(1998), and we are bound by her factual findings so long as they are supported

by sufficient credible evidence. N.J. Div. of Youth & Fam. Servs. v. M.M.,  189 N.J. 261, 279 (2007); see also N.J. Div. of Youth & Fam. Servs. v. F.M.,  211 N.J. 420, 448-49 (2012) ("It is not our place to second-guess or substitute our

judgment for that of the family court, provided that the record contains

substantial and credible evidence to support the decision to terminate parental

rights."). After reviewing the record, we conclude that the trial judge's factual

findings are fully supported by the record and, in light of those facts, her legal

conclusions are unassailable.

      We do not reach our decision lightly as we recognize 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). But, that right is not absolute. N.J. Div. of Youth &

Fam. Servs. v. R.G.,  217 N.J. 527, 553 (2014); N.J. Div. of Youth & Fam. Servs.

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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 & Fam.

Servs. v. G.M.,  198 N.J. 382, 397 (2009); In re Guardianship of J.C.,  129 N.J.
 1, 10 (1992).

      The Legislature created a test to determine when it is in the child's best

interests 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; [4]

            (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


4
  We are aware that on July 2, 2021, the Legislature enacted L. 2021 c. 154,
deleting the last sentence of  N.J.S.A. 30:4C-15.1(a)(2). This amendment does
not impact our judgment as we conclude, as Judge Axelrad did, the Division
advised Jennifer about KLG as an option and despite that advice, she preferred
adoption.
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                                       8
            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.

      Under the first prong of the best interests test, the concern is not only with

actual harm to the child but also the risk of harm. In re Guardianship of D.M.H.,

 161 N.J. 365, 383 (1999). The focus is not on a single or isolated event, but

rather on the effect "of harms arising from the parent-child relationship over

time on the child's health and development." K.H.O.,  161 N.J. at 348. A judge

does not need to wait "until a child is actually irreparably impaired by parental

inattention or neglect" to find child endangerment. D.M.H.,  161 N.J. at 383.

For example, the deprivation of a stable and safe home causes a child

psychological harm. See K.H.O.,  161 N.J. at 353; D.M.H.,  161 N.J. at 379.

Also, a parent's withdrawal of nurture and care for an extended period endangers

the health of a child. D.M.H.,  161 N.J. at 379. When children "languish in

foster care" without a permanent home, their parents' "failure to provide a

permanent home" may itself constitute harm. Id. at 383 (citation omitted).

      Although "[m]ental illness, alone, does not disqualify a parent from

raising a child," when a mental illness causes risk of harm, such as the inability

to maintain a safe environment, and the parent is unwilling or incapable of

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obtaining appropriate treatment, the first prong can be proven. F.M.,  211 N.J.

at 450-51. "'The fact that the parent[ is] morally blameless in this unfortunate

situation is not conclusive on the issue of permanent custody. [Her] inadequacy

as [a] parent[] stems from [her] mental illness. . . .  N.J.S.A. 30:4C-15(c) speaks

to the 'best interests of any child,' not the presence or absence of culpable fault

on the parents' part.'" N.J. Div. of Youth & Fam. Servs. v. A.G.,  344 N.J. Super.
 418, 439 (App. Div. 2001) (final alteration in original) (quoting In re

Guardianship of R., G. & F.,  155 N.J. Super. 186, 194-95 (App. Div. 1977)).

      "[T]he second prong more directly focuses on conduct that equates with

parental unfitness." D.M.H.,  161 N.J. at 379 (citations omitted). "[T]he [first]

two components of the harm requirement . . . are related to one another, and

evidence that supports one informs and may support the other as part of the

comprehensive basis for determining the best interests of the child."          Ibid.

Under the third prong, "[r]easonable efforts may include consultation with the

parent, developing a plan for reunification, providing services essential to the

realization of the reunification plan, informing the family of the child's progress,

and facilitating visitation." M.M.,  189 N.J. at 281 (internal quotation marks and

citations omitted).

      The fourth and last prong is a failsafe that requires the trial court to find,

"whether, after considering and balancing the two relationships, the child will

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suffer a greater harm from the termination of ties with [the] natural parents than

from the permanent disruption of [his] relationship with [the resource] parents."

K.H.O.,  161 N.J. at 355. "This criterion is related to the first and second

elements of the best interest standard, which also focus on parental harm to the

children." D.M.H.,  161 N.J. at 384 (citations omitted.) "The latter specifically

defines 'harm' as 'includ[ing] evidence that separating the child from his

[resource] parents would cause serious and enduring emotional or psychological

harm to the child.'" Ibid. (first alteration in original) (citations omitted).

      In establishing the fourth prong, the Division "should offer testimony of

a 'well-qualified expert who has had full opportunity to make a comprehensive,

objective, and informed evaluation' of the child's relationship with both the

natural parents and the [resource] parents." M.M.,  189 N.J. at 281 (citation

omitted).   However, the lack of a bonding evaluation is not fatal where

termination "was not predicated upon bonding, but rather reflected [the child's]

need for permanency and [the parent's] inability to care for him in the

foreseeable future." N.J. Div. of Youth & Fam. Servs. v. B.G.S.,  291 N.J. Super.
 582, 593 (App. Div. 1996).

      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. at 348. "The considerations involved

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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 of L.A.S.,  134 N.J. 127, 139

(1993)).

      With these guiding principles in mind, we turn to Moira's challenges to

the termination of her parental rights. Moira's argument on appeal about prongs

one and two are unpersuasive because, as the trial judge correctly found, the

record and Moira's own testimony demonstrated that Moira subjected Adam to

unnecessary risk of harm. For instance, she testified that after leaving Jennifer's

house, she attempted to rent an apartment or house from a former landlord, but

only had approximately $500 in the bank. At some point, Moira recognized that

she and Adam were tired and that while she was "between [Jennifer's] house and

another close family member," instead of going to either home, she "decided"

that "the park would be someplace safe to rest" because "it was well lit." She

then testified that the police did a "normal routine stop," while she was parked

at the park and, as the trial judge correctly noted during her testimony, Moira

only expressed "concerns about why [she] was being told [that] the car wasn't

registered" but not about sleeping in a car with a toddler, who was found wearing

clothes saturated by his own urine.



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      Moreover, despite the Division's repeated efforts to assist Moira in

overcoming the obstacles to her being able to properly care for Adam, Moira not

only refused to accept that she was in need of assistance, but she absented herself

from not only the Division's representatives, but also from Adam, culminating

in her sudden relocation to Georgia without notifying her mother where she was

or remaining in meaningful contact with Adam. Moira's behavior demonstrated

that she had no intention of making herself available to Adam at any time in the

future.

      Regardless of whether her mental health was the cause of her behavior,

Moira would not and could not provide safe and secure shelter for Adam or

accept assistance from her mother or the Division. Under these circumstances,

we conclude Judge Axelrad correctly determined the Division met its burden as

to the first two prongs. K.H.O.,  161 N.J. at 352-53 (holding that prongs one and

two may be satisfied by demonstrating "parental dereliction and irresponsibility,

such as the parent's . . . inability to a stable and protective home" or support for

the child).

      As to the third prong, Moira generally argues the record fails to establish

by clear and convincing evidence that Division adequately informed Jennifer

about KLG being an option, rather than adoption, especially since a written

acknowledgment of being advised about KLG signed by Jennifer was never

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introduced into evidence. Moira's argument in this regard was not raised before

Judge Axelrad. For that reason, we do not consider it properly raised before us.

See N.J. Div. of Youth & Fam. Servs. v. M.C. III,  201 N.J. 328, 339 (2010)

(explaining "issues not raised below will ordinarily not be considered on

appeal"). Even if we did, we would conclude that the failure to have Jennifer

sign a Division "Acknowledgement of Receipt of Adoption/KLG Fact Sheet,"

or form CP&P 4-18, does not outweigh the unrefuted, unchallenged testimony

that the trial judge found credible from the Division's representative about

advising Jennifer about KLG, and from the same witnesses and the Division's

expert who evaluated Jennifer's bond with Adam, about Jennifer's wanting to

adopt Adam.

      Under these circumstances, KLG with Jennifer was never an option for

Adam because at that time it was only available "where adoption is neither

feasible or likely. [5]"  N.J.S.A. 3B:12A-1(c). See also N.J. Div. of Youth & Fam.

Servs. v. M.M.,  459 N.J. Super. 246, 259 (App. Div. 2019) (stating that the

Legislature enacted  N.J.S.A. 3B:12A-1 to -7, the KLG Act, because it



 5 L. 2021 c. 154 also amended the laws pertaining to the KLG Act by deleting
"and (b) adoption of the child is neither feasible nor likely" under  N.J.S.A.
3B:12A-6(d)(3), effective immediately. Because Judge Alexrad found that
Jennifer was informed about KLG but wants to adopt, the trial judge's findings
and conclusions are unaffected by this amendment to the KLG Act.
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"recognized than 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." (emphasis added)).

      As to the fourth prong, although Moira does not challenge Judge Axelrad's

acceptance of the Division's expert's conclusion that Adam was closely bonded

to his grandmother and his separation from her would be harmful, she contends

that it was impossible for the judge to conclude that disrupting that relationship

would not cause more harm than good, because there was no expert opinion as

to Moira's bond with Adam, and other evidence raised an inference that her bond

with her child was equally as strong as her mother's with Adam.

      We find Moira's contention to be without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice to say, the only

reason there was no bonding evaluation between Moira and Adam was due to

her failure to cooperate and the other evidence in the record demonstrated how

Moira would leave her son for extended periods of time without any contact for

months, for example when she relocated to Georgia, and did nothing to provide

him with a safe home or essentials for his daily living. Significantly, although

there was no dispute separating Adam from Jennifer would cause him harm,

there was no evidence that Moira would be able to comfort Adam or otherwise

mitigate that harm.

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      Finally, Moira argues for the first time that her due process rights were

violated when she was denied access to counsel during the Title Nine and Title

Thirty proceedings and that the Title Nine court placed Adam in Jennifer's care

without her knowledge during the May 15, 2019 FN hearing, which despite

having notice, Moira failed to appear. She also contends that the judges were

impatient, discourteous, and demonstrated "a bias that called into question the

fairness of the trial." Further, Moira claims that the Title Nine judge incorrectly

informed her that the "pool attorney" that was previously assigned would be

assigned again to represent her during guardianship proceedings.

      We need not consider Moira's contentions about the Title Nine action as

she never appealed from any order entered in that action. To the extent that they

arise from her perception of what occurred during the guardianship action,

Moira never raised them at her trial before Judge Axelrad. Here again we

"'decline to consider questions or issues not properly presented to the trial court

when an opportunity for such a presentation is available unless the questions so

raised on appeal go to the jurisdiction of the trial court or concern matters of

great public interest.'" N.J. Div. of Youth & Fam. Servs. v. B.H.,  391 N.J. Super.
 322, 343 (App. Div. 2007) (quoting Nieder v. Royal Indem. Ins. Co.,  62 N.J.
 229, 234 (1973)).     We find no reason to apply the exception to this rule

especially because it relates to the Title Nine proceeding. R. 2:11-3(e)(1)(E).

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Even if we did consider Moira's argument, we conclude it is without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      In sum, we conclude Judge Axelrad's decision here upheld our public

policy that, "[a] child cannot be held prisoner of the rights of others, even those

of [the] parents.   Children have their own rights, including the right to a

permanent, safe and stable placement." N.J. Div. of Youth & Fam. Servs. v.

C.S.,  367 N.J. Super. 76, 111 (App. Div. 2004). "'Keeping the child in limbo,

hoping for some long[-]term unification plan, would be a misapplication of the

law.'" N.J. Div. of Youth & Fam. Servs. v. L.J.D.,  428 N.J. Super. 451, 484

(App. Div. 2012) (quoting A.G.,  344 N.J. Super. at 418).

      Affirmed.




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