NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.G and C.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                                NOT FOR PUBLICATION WITHOUT THE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-2962-20

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

C.G.,

          Defendant-Appellant,

and

C.R.,

     Defendant.
________________________

IN THE MATTER OF THE
GUARDIANSHIP OF
A.E.R., a minor.
________________________

                   Submitted March 9, 2022 – Decided April 5, 2022

                   Before Judges Whipple, Geiger and Susswein.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Ocean County, Docket
            No. FG-15-0012-20.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Daniel A. DiLella, Designated Counsel, on
            the briefs).

            Matthew J. Platkin, Acting Attorney General, attorney
            for respondent (Melissa H. Raksa, Assistant Attorney
            General, of counsel; Salima E. Burke, Deputy Attorney
            General, on the brief).

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

PER CURIAM

      Defendant C.G. (Cara)1 appeals from the judgment of guardianship

entered in favor of the Division of Child Protection and Permanency (Division)

terminating her rights to her daughter A.E.R. (Ann). Having carefully reviewed

the record, we affirm primarily for the reasons expressed in the thorough opinion

of Judge James M. Blaney issued from the bench on June 3, 2021.

      Defendant raises the following issues on appeal:




1
  We use the pseudonyms from the Law Guardian's brief to protect the parties'
privacy and preserve the confidentiality of these proceedings. R. 1:38-3(d)(13).


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            THE JUDGMENT OF GUARDIANSHIP SHOULD
            BE REVERSED BECAUSE THE COURT ERRED IN
            FINDING THAT [THE DIVISION'S] EVIDENCE
            SUPPORTED THE FOUR PRONGS OF N.J.S.A.
            30:4C-15.1(a) BY CLEAR AND CONVINCING
            EVIDENCE SUFFICIENT TO TERMINATE C.G.'S
            PARENTAL RIGHTS.

            A. The judgment terminating C.G.'s parental rights
            should be reversed because the trial court failed to
            consider kinship legal guardianship as a possible
            alternative to termination of parental rights to satisfy
            prong three.

            B. C.G. is entitled to a reversal because the trial court
            erred in deciding that the evidence presented supported
            a finding that that the delay of permanent placement
            will add to the harm.

      Ann is the biological child of Cara and C.R. (Craig). In October 2018, the

Division received a referral that Cara receives Social Security benefits for a

mental health diagnosis, has a history of depression, tested positive for

narcotics, and left the hospital after having Ann. Cara returned on October 29,

and the hospital discharged her the next day. Cara suffers from significant

mental health disorders, which impair her ability to function as a parent. Cara

had an extensive history with the Division and previously had her rights to

another child terminated.




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      On October 30, 2018, the Division removed Ann from Cara via a Dodd

removal order, 2 N.J.S.A. 9:6-8.21 to -8.82, and placed her with a non-relative

resource parent. Cara planned for Ann to live with Craig because he and his

mother were willing to care for Ann together. However, Craig's cognitive

limitations raised concerns about his ability to parent on his own, and his

mother's history with the Division prevented her from being approved for Ann's

placement.

      The court approved the Division's Dodd placement at a November 1, 2018

hearing. When a caseworker met with Cara that day, her speech rambled as she

made bizarre allegations and threats – saying, for example, that if her mother

was near her child, this would spread the "crack rock and . . . make her want to

crack the child's skull open." While at the courthouse, Cara stated she was going

to kill little white children; further, she swatted at a child. Two weeks later the

Division learned Cara was hospitalized for homicidal thoughts against Craig and

for medication non-compliance. Later that month, Cara was reported to be

homeless. Cara attended a November 26, 2018 visit with Ann but was agitated




2
 The Dodd Act authorizes the emergent removal of children without court order
pursuant to  N.J.S.A. 9:6-8.29. N.J. Div. of Youth & Fam. Servs. v. P.W.R.,  205 N.J. 17, 26 n.11 (2011).
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and eventually left because the Division, concerned about Ann's safety, would

not let Cara touch her.

      Cara made threats and concerning statements about and against her

children, her mother, Craig, and her other child's resource parents and was

psychiatrically hospitalized from January 1 to January 14, 2019. After her

discharge, the trial court suspended visits, noting that her "mental health is not

stable at this time and there are allegations of threats to kill the child." Cara

tested positive for phencyclidine (PCP) at a February 2019 assessment. She also

failed to attend parenting classes.

      On February 8, 2019, the Division placed Ann with Craig's sister, D.R.

(Deborah), which the court approved. Deborah was authorized to supervise

Ann's visits with Craig but not with Cara. Deborah received training on the

differences between kinship legal guardianship and adoption as part of the

process of becoming a licensed resource parent, and the caseworker later

reviewed these differences with her. She consistently expressed commitment to

adoption.

      Cara continued to struggle with mental health concerns and substance

abuse. On April 12, 2019, Cara sought treatment for suicidal ideations and was

recommended for outpatient treatment. She called the Division worker and said


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she was at an in-patient alcohol and drug treatment program. Later that month,

she was again homeless and had left her treatment program. Cara was unable to

complete any of the several programs for mental health and substance abuse

treatment that were offered.

      The Division filed a guardianship complaint to terminate her parental

rights on October 29, 2019. On May 3, 2021, Craig executed a voluntary

identified surrender of his parental rights for Ann to Deborah.

      Judge Blaney conducted the guardianship trial on May 25 and 26, 2021.

The Law Guardian joined the Division in arguing for termination of parental

rights.   Two Division caseworkers and Deborah testified for the State,

addressing incidents and services described above. The Division also called Dr.

David Brandwein, an expert in the field of psychology. Neither Cara nor the

Law Guardian presented any witnesses. The Division's exhibits were moved

into evidence without objection. The night before trial, Cara left a message with

the caseworker saying she would not attend trial, and the court called and left a

message noting her attorney would be present. Her attorney took no position on

the Division's guardianship petition.

      On June 3, 2021, Judge Blaney issued an oral opinion which terminated

Cara's parental rights to Ann and entered a judgment of guardianship. Judge


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Blaney gave thoughtful attention to the importance of permanency and stability

from the perspective of Ann's needs, and he found the Division had established

by clear and convincing evidence all four prongs of the best-interests test,

 N.J.S.A. 30:4C-15.1(a), which, in the best interest of the child, permits

termination of parental rights. In re Guardianship of K.H.O.,  161 N.J. 337, 347-

48 (1999). This appeal followed.

      In this appeal, our review of the judge's decision is limited. We defer to

his expertise as a Family Part judge, Cesare v. Cesare,  154 N.J. 394, 411-13

(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).

      Parents have a constitutionally protected right to raise their biological

children. In re Guardianship of J.C.,  129 N.J. 1, 9-10 (1992) (citing Santosky

v. Kramer,  455 U.S. 745, 753 (1982)). The state may act to protect the welfare

of the children, but this is a limited authority, applying to circumstances where

the parent is unfit, or the child has been harmed. Id. at 10. In New Jersey, to

prevail in a proceeding to terminate parental rights, the Division must establish,

by clear and convincing evidence, each element of the "best interests test." See

ibid. At the time of trial and the court's order, the applicable statute provided:


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            (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;

            (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
            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.

            [ N.J.S.A. 30:4C-15.1(a) (2021) (amended July 2021).]

      Cara argues the amendment, removing the second sentence of prong two,

should be applied retroactively because the law provides that the amendment is

to "take effect immediately." L. 2021, c. 154, § 10. This argument was not

raised below and we reject Cara's argument outright. Moreover, applying the

amendment retroactively would not change the outcome.

      "Settled rules of statutory construction favor prospective rather than

retroactive application of new legislation." Pisack v. B & C Towing, Inc., 240


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                                       8 N.J. 360, 370 (2020) (quoting James v. N.J. Mfrs. Ins. Co.,  216 N.J. 552, 563

(2014)). Whether a court should apply a statue retroactively requires the court

to first determine whether the Legislature intended to give the statue retroactive

application. Legislative intent for retroactivity can be demonstrated: (i) when

the Legislature expresses its intent that the law apply retroactively, either

expressly, in the statute or pertinent legislative history, or implicitly, such as

where retroactive application may be necessary to make the statute workable or

provide the most sensible interpretation; (ii) when an amendment is curative,

and thus designed to carry out or explain the intent of the statute; or (iii) when

the parties' expectations warrant that interpretation. Johnson v. Roselle EZ

Quick, LLC,  226 N.J. 370, 387 (2016). The second determination considers

whether retroactive application will be an unconstitutional interference or

prevent manifest injustice. Ibid.

      Cara offers no convincing legal argument to support retroactive

application. Moreover, Cara's case would arguably have the same outcome

because the court did and still could consider the relationship with the resource

parent when the biological parent cannot mitigate the harm.

      Moreover, Cara has not refuted the finding of potential harm with her as

a parent nor the ruling-out of alternative placements. She has not indicated an


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alternative placement that the Division failed to consider. We conclude the

factual findings of Judge Blaney are fully supported by the record and the legal

conclusions drawn therefrom are unassailable.

      Affirmed.




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