NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. B.M

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                                NOT FOR PUBLICATION WITHOUT THE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-3250-19

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

B.M.,

     Defendant-Appellant.
_______________________

IN THE MATTER OF THE
GUARDIANSHIP OF S.M.
and G.M., minors.
_______________________

                   Submitted September 16, 2021 – Decided October 1, 2021

                   Before Judges Alvarez and Mawla.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Passaic County,
                   Docket No. FG-16-0021-20.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Lora B. Glick, Designated Counsel, on the
                   brief).
            Andrew J. Bruck, Acting Attorney General, attorney for
            respondent (Donna Arons, Assistant Attorney General,
            of counsel; Toni Lynn Imperiale, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minors (Meredith Alexis Pollock, Deputy
            Public Defender, of counsel; Rachel E. Seidman,
            Assistant Deputy Public Defender, of counsel and on
            the brief).

PER CURIAM

      Defendant B.M. appeals from a March 17, 2020 order terminating his

parental rights in two children, then two and four years of age. After the trial,

in which B.M. did not participate, Judge Imre Karaszegi, Jr., rendered a written

decision and order finding the New Jersey Division of Child Protection and

Permanency (Division) met by clear and convincing evidence all four prongs of

the best interests of the child test embodied in  N.J.S.A. 30:4C-15.1(a). We

affirm, relying on Judge Kareszegi's thoughtful and cogent decision.

      B.M. raises the following points on appeal:

            POINT I

            THE TRIAL COURT'S CONCLUSIONS PURSUANT
            TO  N.J.S.A. 30:4C-15.1(a) WERE BASED UPON A
            MISAPPLICATION OF THE LAW AND FINDINGS
            OF FACT THAT ARE NOT SUPPORTED BY
            CREDIBLE EVIDENCE IN THE TRIAL RECORD.



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A.    The Trial Court Erred In Holding That DCPP
Made Reasonable Efforts To Reunify [B.M.] with
[S.M.] And [G.M.] And That It Considered Alternatives
To Terminating [B.M.'s] Parental Rights.

     (i)   DCPP failed to prove, by clear and
     convincing evidence, that its efforts at
     reunification were reasonable.

     (ii) The trial court failed to properly consider
     alternatives to termination of [B.M.'s] parental
     rights.

B.    The Trial Court Erred In Holding That [B.M.]
Caused And Will Continue To Cause Harm To [S.M.]
And [G.M.], That He Is Unwilling Or Unable To Cure
The Harm, Or That A Delay In Permanent Placement
Will Add To The Harm.

     (i)   DCPP failed to prove, by clear and
     convincing evidence, that [B.M.] caused harm to
     [S.M.] and [G.M.] or that he was unwilling or
     unable to cure that harm.

     (ii) DCPP failed to prove, by clear and
     convincing evidence, that the separation of
     [S.M.] and [G.M.] from their resource parents
     would cause them "serious and enduring
     emotional or psychological harm."

C.    The Trial Court Misapplied The Facts To The
Law In Holding That Termination Of [B.M.'s] Parental
Rights Will Not Do More Harm Than Good On A
Record Based On Impermissible Embedded Hearsay
And Devoid Of Expert Opinion, Reports Or Testimony.




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                         3
            POINT II

            DCPP'S HANDLING OF [B.M.'s] CASE CREATED
            THE GROUNDS ON WHICH IT SOUGHT TO
            TERMINATE HIS PARENTAL RIGHTS SUCH
            THAT    TERMINATION   VIOLATED     [B.M.'s]
            SUBSTANTIVE DUE PROCESS RIGHTS AND,
            THUS, CANNOT STAND.

      We conclude the arguments lack sufficient merit to warrant much

discussion in a written opinion in light of the record and applicable law. See R.

2:11-3(e)(1)(E). The facts and circumstances can be briefly summarized.

      The Division had been involved with the children's mother, S.M., at the

time of her death on September 6, 2018. S.M. and B.M. did not reside as a

family at that point, although B.M. later claimed he traveled from Atlantic City

to S.M.'s Paterson home to assist her after the birth of the second child, and once

again after the Division became involved with S.M. in August 2018.

      S.M.'s tragic death from a drug overdose came to the attention of the

authorities when a homeless man flagged down a passing patrol car to report

that he had heard children crying in the woods and discovered them by their

mother's lifeless body. The Division initiated legal proceedings on September

7, 2018. After the children were identified from photographs by a caseworker

familiar with the family, they were placed in a resource home on September 10,

2018. The Division filed its complaint for guardianship on August 30, 2019.

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      The resource parents wish to adopt.        One of the children receives

specialized services because she is on the autism spectrum. They are doing well

in the home.

      While the litigation was pending, from September 7, 2018, to the

termination judgment nearly two years later, the Division struggled to maintain

contact with B.M. He appeared at Division offices once, on September 24. B.M.

attended a court hearing in person on September 25, 2018, and visited the

children on that same date—his only visit with them since their mother died.

B.M. participated in telephonic proceedings on October 16, 2019, the other

occasion he has appeared in court.

      All the while, B.M. has been homeless and unemployed. He refused to

give the Division an address, and the Division was unable to contact him for

seven months. B.M. refused to participate in evaluations or even visitation.

This, despite the Division's offer of transportation and motel accommodations

so he could see the children.

      The Division presented one witness, a caseworker, and many documents.

The judge learned a bonding evaluation had been conducted between the

children and their resource parents, and that the evaluator concluded terminating

their relationship would likely cause lasting psychological harm. No report was


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presented—he learned of the existence of the expert opinion in another

document admitted into evidence. Although the judge referenced the evaluator's

opinion, he did not rely upon the bonding evaluation. The court enumerated

family that was contacted as alternative placements, and none expressed interest

or were qualified to take the children.

      The judge meticulously considered the proofs required to assess the

statutory prongs. See  N.J.S.A. 30:4C-15.1(a). Finding that B.M. failed to visit

his children despite being provided with the means to do so, B.M. demonstrated

he was unable or unwilling to establish a nurturing relationship with his

children, given his absence from their lives. See  N.J.S.A. 30:4C-15.1(a)(1). He

was unable or unwilling to eliminate the harm he posed to the children because

he refused to engage in court-ordered services, submit to evaluations, or make

himself available for visitation. See  N.J.S.A. 30:4C-15.1(a)(2). The Division's

substantial efforts at reuniting B.M. with his children ultimately failed because

he did nothing in response. See  N.J.S.A. 30:4C-15.1(a)(3). The children are

doing well in their foster home. See  N.J.S.A. 30:4C-15.1(a)(4). Kinship legal

guardianship was simply not an option—apart from the fact no suitable and

willing family member could be located, the resource parents wish to adopt. See

N.J. Div. of Youth & Fam. Servs. v. P.P.,  180 N.J. 494, 513 (2004) ("[W]hen


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the permanency provided by adoption is available, kinship legal guardianship

cannot be used as a defense to termination of parental rights . . . ."); see also N.J.

Div. of Youth & Fam. Servs. v. T.I.,  423 N.J. Super. 127, 135-36 (App. Div.

2011) (holding resource family's "unequivocal" desire to adopt rendered kinship

legal guardianship inappropriate because adoption was neither infeasible nor

unlikely).

      The trial judge ultimately concluded:

             the harm suffered from the termination of the parental
             relationship will not be greater than the harm caused by
             permanently disrupting the child's relationship with the
             foster parents as the children have been in placement
             for eighteen months and their current caretakers have
             provided for and are committed to provide for their
             needs going forward.

      Our review of the decision is limited and deferential. We do not disturb

a trial judge's factual findings so long as they are supported by substantial

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

552 (2014). The record contains such evidence, which supports the judge's legal

conclusions. The Division clearly and convincingly established it had proven

each statutory element as a matter of law. See N.J. Div. of Child Prot. &

Permanency v. R.L.M.,  236 N.J. 123, 145 (2018).




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Affirmed.




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