DCPP v. M.M. AND V.B., IN THE MATTER OF THE GUARDIANSHIP OF K.M.N., Z.B., ZA.B., L.B., ZAR.B., AND Z.U.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3597-17T2
A-3598-17T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION
AS REDACTED
June 19, 2019
v.
APPELLATE DIVISION
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.
______________________________

Argued March 11, 2019 – Decided April 2, 2019

Before Judges Sabatino, Sumners and Mitterhoff.
 On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0206-18.

Andrew R. Burroughs, Designated Counsel, argued
the cause for appellant M.M. (Joseph E. Krakora,
Public Defender, attorney; Andrew R. Burroughs, on
the briefs).

James D. O'Kelly, Designated Counsel, argued the
cause for appellant V.B. (Joseph E. Krakora, Public
Defender, attorney; James D. O'Kelly, on the briefs).

Peter D. Alvino, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jason W. Rockwell, Assistant
Attorney General, of counsel; Sara M. Gregory,
Deputy Attorney General, on the brief).

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

The opinion of the court was delivered by

SABATINO, P.J.A.D.

In these consolidated appeals, the mother and father of several children

seek reversal of the trial court's decision terminating their parental rights after

a four-day guardianship trial. The children were removed from the parents

because of allegations of abuse or neglect. Three of the children in question

presently live with their maternal grandmother and the other three children

have been placed with a maternal great aunt.

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2
 The court-approved plan of the Division of Child Protection and

Permanency ("the Division") is for the maternal grandmother to adopt the three

children who are in her care, and for the maternal great aunt to likewise adopt

the other three children. The Law Guardian for the children supports that plan,

and joins with the Division in urging that we affirm the trial court's decision.

For the reasons that follow, we affirm the trial court's determination that

the Division met its burden of proof at trial with respect to the first two prongs

of the termination statute, N.J.S.A. 30:4C-15.1(a), as to both parents.

However, we remand this case with respect to prongs three and four of the

statute specifically to: (1) develop 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 Kinship Legal Guardianship ("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. In all other respects, we uphold the trial court's otherwise well-

founded and well-reasoned decision.

A-3597-17T2
3
 I.

Although the record in this case is extensive, we need not detail it

exhaustively here. We summarize only the salient facts pertinent to our

discussion.

Defendant M.M.1 ("the mother") is the biological mother of seven

children: X.M. ("Xander"), born in October 2008; K.M.N. ("Kevin"), born in

October 2009; Z.B. ("Zarah"), born in September 2011; Za.B. ("Zena"), born

in August 2013; L.B. ("Larry"), born in April 2015; Zar.B. ("Zadie"), born in

July 2016; and Z.U.B. ("Zelda"), born in September 2017.

Xander was placed in the custody of his father, D.B. The court

dismissed Xander from this litigation in January 2017.

Defendant E.N. is the father of Kevin. The trial court terminated E.N.'s

parental rights after the guardianship trial, which he did not attend. E.N. has

not appealed the court's decision respecting him and Kevin.

Defendant V.B. ("the father") is the husband of the mother. He is the

father of the mother's youngest five children, i.e., Zarah, Zena, Larry, Zadie,

and Zelda.

1
We use initials and pseudonyms to protect the identity of the children. See
R. 1:38-3(d)(12).

A-3597-17T2
4
 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.

In December 2015, the Division learned that Larry, who was then about

seven months old, had fallen off a bed and was burned by a radiator while in

the father's care. The incident was investigated and established as to the

father's neglect, but the Division did not remove the children at that time.

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

care because the mother had tested positive for marijuana upon Zadie's birth,

and because caseworker interviews with the children had raised concerns about

physical abuse. Kevin and Larry were placed with the maternal grandmother.

Zarah, Zena, and Zadie were placed with the maternal great aunt.

The Division filed a complaint of guardianship in the Family Part in

September 2017. That same month the youngest child, Zelda, was born. The

Division removed Zelda from defendants' care and placed her with the

maternal grandmother, adding Zelda to its amended guardianship complaint.

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5
 The evidence at the four-day trial reflected that defendants have

struggled to be capable as parents. The evidence is replete with repeated

marijuana use by both parents, an inability of the parents to provide their ow n

stable home, unemployment, and indicia of failures to supervise the children,

including the radiator incident in which Larry sustained second-degree burns.

Both parents have psychological difficulties, for which they have received

some counseling.

The Division made numerous attempts over the years to provide the

parents with services and to reunify them with their children. The Division's

key testifying witness at trial, Karen D. Wells, Psy.D., initially in 2011 had

"cautiously supported" the gradual reunification of the children with the

mother. Dr. Wells later issued an expert report in 2013, again recommending a

path towards reunification. However, as time passed, Dr. Wells changed her

opinion and ultimately concluded that the children are better off if they are

kept with and adopted by their respective resource parents.

The father presented testimony from a psychiatrist, Barry A. Katz,

Ph.D., to rebut the expert opinions of Dr. Wells. After performing bonding

evaluations of the children and a psychological evaluation of the father, Dr.

Katz concluded that it would do more harm than good to sever the father's

parental rights. He predicted that such a termination would place the children

A-3597-17T2
6
at risk for conduct and emotional problems, and difficulties at school. Dr.

Katz recommended an additional four-to-six month period to reassess the

circumstances.

The record at trial showed the Division has provided substantial services

to both parents. Among other things, those services included substance abus e

treatment, domestic violence and anger-management counseling, homemaker

services, temporary rental assistance, and other programs. In addition, up

through the time of trial, the Division supported visitation between the parents

and the children residing with the resource parents. The mother in particular

visited frequently with the children, with the acquiescence of her own mother

and the children's maternal great aunt. The father likewise had contact with

the children during the litigation, albeit seemingly with less frequency.

Although there have been lapses, both parents have substantially taken

advantage of the services provided to them. Nevertheless, the mother

continued to smoke marijuana and repeatedly tested positive for such drug use

up through at least February 2017. The mother contends that there is no proof

that she has ever harmed or neglected the children when she was under the

influence of marijuana or any other drug. The father, meanwhile, has had

repeated relapses, although he tested negatively for marijuana for

approximately a year before the trial.

A-3597-17T2
7
 As of the time of trial, the parents were both employed. They had an

apartment, but one not large enough to accommodate all six children. They

were hoping to save money eventually to rent a larger apartment.

After considering this and much more extensive evidence, the trial judge

concluded the Division had proven all four prongs of the termination statute by

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

In particular, the judge found the expert opinions of the Division's expert, Dr.

Wells, more persuasive than those of the competing defense expert, Dr. Katz.

The judge found significant the Division's eight years of efforts to try to

stabilize the family, and to provide services, all of which were unsuccessful in

reunifying the children with their parents.

The judge noted the close bonds between the maternal grandmother and

maternal great aunt and the children in their respective homes, and she found

that both resource parents wish to adopt the children presently in their care.

The judge found the termination of the parents' rights to enable such adoption

consistent with the children's best interests.

II.

A.

We begin our discussion by acknowledging that the termination of a

parent's rights to his or her children raises issues of a constitutional dimension.

A-3597-17T2
8
See, e.g., In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); see also In

re Guardianship of J.C., 129 N.J. 1, 9-10 (1992). The Legislature has

recognized the importance of this constitutionally protected relationship

between a parent and a child by imposing a high burden upon the Division to

terminate those rights in a guardianship case. That burden requires the

Division to prove, by clear and convincing evidence, the following four prongs

under N.J.S.A. 30:4C-15.1(a):

(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;

(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); see also N.J. Div. of Youth
& Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986)
(reciting the four controlling standards later codified
in Title 30).]

A-3597-17T2
9
 On appeal, the mother challenges the trial court's adverse findings as to

all four prongs. The father concedes the sufficiency of the evidence against

him as to prong one, but he contests the trial court's analysis as to prongs two,

three, and four. Both parents include in their various arguments a contention

that the trial court did not sufficiently consider the option of KLG with the

resource parents as a possible alternative to adoption.

In considering these arguments on appeal, we must give substantial

deference to the trial judge as the fact-finder who presided over this multi-day

guardianship trial. Our scope of review on appeals from orders terminating

parental rights is limited. In such cases, the trial court's findings generally

should be upheld so long as 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). A decision in such cases should only be reversed or altered on

appeal if the trial court's findings were "so wholly unsupportable as to result in

a denial of justice." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494,

511 (2004) (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)).

We must take into account the trial judge's opportunity to have observed

the trial witnesses first hand and to evaluate their credibility. R.G., 217 N.J. at

552. We also must recognize the considerable expertise of the Family Part,

which repeatedly adjudicates cases brought by the Division under Title 9 and

A-3597-17T2
10
Title 30 involving the alleged abuse or neglect of children. See, e.g., N.J. Div.

of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); N.J. Div. of

Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 476 (App. Div. 2012).

B.

Having applied these standards to the record and the trial court's findings

in light of the applicable substantive law, we affirm the trial court's decision

with respect to prongs one and two of the statute. We do so substantially for

the reasons articulated in the trial judge's extensive written decision dated

March 29, 2018.

Although we agree with much of the trial court's analysis with regard to

prongs three and four of the statute, we presently are unable to affirm the final

judgment as to those prongs. That is because the factual record, which is

based upon a series of somewhat inconsistent and conditional hearsay

statements, is insufficiently clear with respect to issues concerning adoption

and the potential alternative of KLG. Moreover, the trial court did not mention

KLG in the course of its written analysis even though it was a facet of the

parties' closing arguments. Before we address these thorny adoption and KLG

issues, we briefly comment on the other aspects of the case.

[At the direction of the court, Parts II(B)(1) and (2)
of this opinion have been omitted from the
published version of this opinion. R. 1:36-3.]

A-3597-17T2
11
 3.

Turning to prong three, we are satisfied that the record readily supports

the trial judge's finding that the Division has made "reasonable efforts" to

provide appropriate services to both parents. As we have noted, the parents

have made use of many of these services, albeit inconsistently at times. We

pause, however, with regard to the last clause of prong three set forth in

N.J.S.A. 30:4C-15.1(a)(3) regarding the adequacy of the trial court's

consideration of "alternatives to termination of parental rights," and defer our

discussion on that point to the KLG portion of this opinion in Pa rt II(C).

4.

Lastly, subject to the KLG caveat, the trial judge provided a reasonable

basis for her conclusion on prong four that the termination of both parents'

rights will not do the children more harm than good under N.J.S.A. 30:4C -

15.1(a)(4). As the finder of fact, the trial judge had the prerogative to evaluate

the credibility of the testimony of the competing experts, and to find the

opinions of Dr. Wells about the children's best interests more persuasive than

those of Dr. Katz. City of Long Branch v. Liu, 203 N.J. 464, 491 (2010)

(explaining the fact finder has the role of assessing the credibility and weight

to be given to expert testimony); Angel v. Rand Express Lines Inc., 66 N.J.

Super. 77, 85-86 (App. Div. 1961) (same).

A-3597-17T2
12
 The present case concerns a distinctive situation in which both resource

parents happen to be close relatives of one parent (the mother's mother and the

mother's aunt). The children have enjoyed visits from the parents with

considerable frequency. 2 The record also suggests that the children, the

resource parents, and defendants at times have spent holidays together and

attended religious services. The children have been capably raised by their

grandmother and great aunt for many years. They have bonded with them and

have been cared for well. Subject to the KLG concerns we will address, infra,

the Division's goal of adoption by the resource parents, with the expectation

and hope they would continue voluntarily to nurture the children's

relationships with their mother and father, appears from the trial proofs to have

several advantages.

2
The trial court initially permitted visitation between the children and the
parents while the appeal was pending. However, we were advised in a pre -
argument status update that we requested from counsel that, as the result of an
incident in the summer of 2018, the trial court has since disallowed such
visitation as to the children staying with the maternal grandmother in an order
issued in the "FC" docket. The Division and the Law Guardian do not rely on
such post-trial developments to support their arguments for affirmance. We
will accordingly ignore this post-judgment information and do not rely upon it
to defendants' disadvantage, either. We do appreciate counsel's assistance in
providing the update information, and recognize it was not required to b e
supplied under Rule 2:6-11(f) (regarding updates of changes of a child's
"placement status" while an appeal is pending) before we inquired.

A-3597-17T2
13
 C.

1.

This brings us to the issue of the potential alternative of KLG to the

termination of defendants' parental rights. The Kinship Legal Guardianship

Act, N.J.S.A. 3B:12A-1 to -7, which authorizes KLG, was enacted because

"the Legislature recognized that an increasing number of children who cannot

safely reside with their parents are in the care of a relative or a 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).

As the statute creating KLG declares, "[i]n considering kinship legal

guardianship, the State is seeking to add another alternative, permanent

placement option, beyond custody, without rising to the level of termination of

parental rights, for caregivers in relationships where adoption is neither

feasible nor likely[.]" N.J.S.A. 3B:12A-1(c). "[T]he purpose of this alternative

legal arrangement is to address the needs of children who cannot reside with

their parents due to their parents' incapacity or inability to raise them and when

adoption is neither feasible nor likely." S.F., 392 N.J. Super. at 209; see also

P.P., 180 N.J. at 508.

Typically, KLG guardians will be caregivers who have a "biological,

legal, extended or committed emotional or psychological relationship with a

A-3597-17T2
14
child[.]" P.P., 180 N.J. at 508 (quoting S. Budget and Appropriations Comm.

Statement to S. 1813 (June 25, 2001), reprinted in N.J.S.A. 3B:12A-1). They

must be "willing to assume care of the child due to parental incapacity or

inability, with the intent to raise the child to adulthood." Ibid. (quoting S.

Budget and Appropriations Comm. Statement to S. 1813 (June 25, 2001),

reprinted in N.J.S.A. 3B:12A-1).

"Once [a] caregiver becomes a kinship legal guardian, the caregiver is

entitled to make all decisions relating to the care and well-being of the child."

N.J. Div. of Youth & Family Servs. v. D.H., 398 N.J. Super. 333, 340 (App.

Div. 2008) (citing N.J.S.A. 3B:12A-4(a)(1)). As this court has further

explained:

KLG, however, does not terminate parental
rights. . . . The birth parents retain the right to: (1)
consent to adoption . . . (2) change the child's name . .
. and (3) visit the child . . . . The birth parents also
remain obligated to pay child support. . . .
Additionally, children are still eligible to receive
inheritance, benefits, or insurance from their birth
parents.

[Id. at 341 (citations omitted) (citing N.J.S.A.
3B:12A-4(a)(2)-(5)).]

In order to conclude that a KLG arrangement is appropriate, the court

must find that:

(1) each parent's incapacity is of such a serious nature
as to demonstrate that the parents are unable,

A-3597-17T2
15
 unavailable or unwilling to perform the regular and
expected functions of care and support of the child;

(2) the parents' inability to perform those functions is
unlikely to change in the foreseeable future;

(3) in cases in which the [D]ivision is involved with
the child . . . (a) the [D]ivision exercised reasonable
efforts to reunify the child with the birth parents and
these reunification efforts have proven unsuccessful or
unnecessary; and (b) adoption of the child is neither
feasible nor likely; and

(4) awarding kinship legal guardianship is in the
child's best interests.

[N.J.S.A. 3B:12A-6(d) (emphasis added).]

The decision of a resource parent to choose adoption over KLG must be

an informed one. See H.R., 431 N.J. Super. at 232-33. In deciding whether or

not to appoint a caregiver as a KLG, the judge must decide if KLG is in the

child's best interests and – when the Division is involved with the parents – if

the Division has made reasonable efforts at reunification and if the adoption of

the child "is neither feasible nor likely." N.J.S.A. 3B:12A-6(d).

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. To achieve that objective, the Legislature enacted in 2005 the

Kinship Legal Guardianship Notification Act ("Notification Act"), N.J.S.A.

A-3597-17T2
16
30:4C-89 to -92. In the Act, the Legislature imposed a responsibility upon the

State "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 implement this notification mandate:

The Department of Children and Families [3]
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].

3
The statute was amended in 2012 to substitute the Department of Children
and Families for the Department of Human Services. See L. 2012, c. 16, § 112
(eff. June 29, 2012).

A-3597-17T2
17
The statute further directs that the Commissioner of the Department "shall

adopt rules and regulations . . . to effectuate the purposes of [the statute]."

N.J.S.A. 30:4C-92.4 No published cases to date have interpreted the

notification statute.

The Division has asserted that the KLG statutory scheme must be

construed with a focus upon the requirement in N.J.S.A. 3B:12A-6(d)(3)(b)

that, in cases such as the present one in which the Division has been involved

with the child, KLG is appropriate only if "adoption of the child is neither

feasible nor likely." In a number of published opinions involving arguments

by terminated parents advocating KLG, our courts have enforced this

requirement that adoption must not be feasible or likely. See, e.g., P.P., 180

N.J. at 513; N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127,

130 (App. Div. 2011).

The Division argues that the statutory scheme must be construed to treat

the caregiver's role as simply deciding whether he or she is willing to adopt the

child in question. According to the Division, a caregiver's preference of KLG

versus adoption is inconsequential. The Division argues that giving credence

to a caregiver's preference would result, in effect, in placing the caregiver in an

4
Our research has not found any such adopted regulations, and none have
been cited in the parties' briefs.

A-3597-17T2
18
inappropriate position of rendering non-expert opinions concerning the child's

best interests, a question reserved for the Family Part judge. Moreover, the

Division expresses concerns that asking a caretaker who is willing to adopt a

child whether he or she would prefer instead a lesser role through a KLG

arrangement inappropriately clouds the legal analysis and injects an

unwarranted comparison of adoption-versus-KLG into the analysis.

Although we appreciate these concerns and agree that the caregiver

should not be placed in the role of functioning as the ultimate "decision -

maker" as to a child's fate, we do not regard the preferences, if any, of the

caregiver to be categorically irrelevant. 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 paradigm is somewhat akin to the principle of informed consent, and

its corollary principle of informed refusal, in health care. A physician may not

proceed with a medical procedure that has been fully described to an informed

patient if the patient states that he or she would prefer to pursue less drastic

measures (such as medication or physical therapy) before undergoing a more

A-3597-17T2
19
drastic option (such as surgery). 5 In such a comparative situation, the patient

may be amenable to the more drastic alternative but would rather attempt the

less drastic one, as between those two alternatives.

To take a more everyday and less monumental example, suppose a

teenager asks her parent if she can drive the family car to a party. The parent

may respond, "Yes, but only if none of the other parents can drive you." In

this situation, the parent would prefer to have someone else drive the child,

and her informed consent is only conditional on such other options being

unavailable.

Although these analogies may not be completely on point, they are

somewhat instructive. Indeed, a leading New Jersey treatise on child custody

and child protection issues describes the caretaker's "decision to choose"

5
Analogous case law in medical negligence matters describes informed
consent as a concept in which a person supplied with adequate knowledge
chooses among the alternative options presented to him or her. See, e.g.,
Jarrell v. Kaul, 223 N.J. 294, 311 (2015) (explaining informed consent as a
concept "predicated on the duty of a physician to disclose to a patient such
information as will enable the patient to make an evaluation of the nature of
the treatment and of any attendant substantial risks, as well as of available
options in the form of alternative therapies.") (emphasis added) (quoting
Largey v. Rothman, 110 N.J. 204, 208 (1988)); Matthies v. Mastromonaco,
160 N.J. 26, 28-29 (1999) (holding "to obtain a patient's informed consent to
one of several alternative courses of treatment, the physician should explain
medically reasonable invasive and noninvasive alternatives, including the risks
and likely outcomes of those alternatives, even when the chosen course is
noninvasive.") (emphasis added).

A-3597-17T2
20
adoption over KLG as a choice, which "must be an informed one." Fall &

Romanowski, Current N.J. Family Law, Child Custody, Protection & Support

§ 18:3-4(c) (2018).

Moreover, the KLG statute requires the court to consider the "wishes" of

the child's parents and, if the child is over the age of twelve, the "wishes" of

the child. N.J.S.A. 3B:12A-6(a)(6) and (7). Logically, the "wishes" of the

caregiver also should bear upon the analysis. In addition, the KLG statute

requires the court to consider "the commitment of the kinship caregiver and the

caregiver's family to raise the child to adulthood." N.J.S.A. 3B:12A-6(a)(10).

A fair judicial assessment of that "commitment" reasonably includes

consideration of whether the caregiver's position is qualified or diluted by a

preference for an alternative option, or is predicated upon some other

conditions or expectations being fulfilled.

In sum, we construe 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.

We are mindful that, as the Supreme Court stated in P.P., 180 N.J. at

513, a case decided before the 2005 passage of the Notification Act, "when the

permanency provided by adoption is available, kinship legal guardianship

A-3597-17T2
21
cannot be used as a defense to termination of parental rights[.]" We are also

cognizant that the Court made clear in P.P. that if the defendants were not fit

to parent their children, "the trial court should not consider [KLG] unless . . .

[the resource parents] decline[d] to adopt." Id. at 514. In faithfully adhering

to those admonitions, however, it is also vital that the evidence before the trial

court regarding the caregivers' intentions has sufficient clarity and evidential

reliability.

As this court observed in T.I., 423 N.J. Super. at 130, following the

enactment of the Notification Act, "when a caregiver in a case brought by the

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

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

(Emphasis added). Such unequivocal evidence was presented in a

"compelling" manner in T.I., in which the child's paternal grandfather testified

at the guardianship trial and stated "unequivocally" that he and his wife wanted

to adopt the child. Id. at 136. The adoptive grandfather attested that the

Division had explained the difference between adoption and KLG, that he had

"given the matter careful consideration," and that he believed KLG would

"threaten the stability" the child enjoyed in his family. Ibid. The grandfather

also testified that "there was no event or circumstance he could envision that

would change his mind." Ibid.

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 Given this unequivocal testimony in T.I., we rejected the parent's

argument that the trial court should have considered KLG as an alternative to

termination. The grandfather's testimony "show[ed] that he clearly understood

the alternatives and that his reasons for rejecting a KLG were consistent with

the Legislature's stated goals." Id. at 137. "[T]he trial court did not abdicate

its obligation in accepting [the grandfather's] testimony, which clearly defeated

any finding that adoption was not feasible or likely." Ibid. (emphasis added).

Hence, there was no need in T.I. "to determine whether KLG was in the best

interest" of the child. Ibid.

By contrast, the record in this case is muddy. The documents in the

record and the testimony of the lay and expert witnesses in this case refer in

various places to KLG. To be sure, that evidence reflects, and it is undisputed,

that there were repeated discussions by Division staff with, respectively, the

maternal grandmother and the maternal great aunt concerning KLG. In

addition, the father's expert, Dr. Katz, discussed KLG with at least the

maternal great aunt. Dr. Katz addressed KLG in his pretrial expert report and,

over objection, in his trial testimony. Dr. Wells, the Division's expert, did not

explicitly discuss KLG in her trial testimony or in the analytical portion of her

report. However, she did opine that adoption was feasible for both resource

parents and she recommended termination to enable such adoption.

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23
 Unlike in T.I., neither of the resource parents in this case testified.

Consequently, the communications by and with them concerning adoption and

KLG are all hearsay statements, a circumstance which we recognize is not

unusual in guardianship litigation. The mother's trial attorney objected to

hearsay contained in the Division's contact sheets. The trial judge ruled as

follows:

[THE COURT]: And then, again, your final
[objection] is all the hearsay contained in the evidence
packet, especially P-313. You may make objections
as we go along. Absolutely. And any hearsay that
there's no exception for is not admissible.

The father's trial attorney later objected on hearsay grounds to the supervisor's

testimony regarding her discussions of KLG with the resource parents. The

judge sustained that objection and did not permit the supervisor to elaborate on

the hearsay discussion.

2.

Noting these evidentiary rulings, we now proceed to discuss, in roughly

chronological form, the evidence respecting each of the resource parents on

this subject.

First, a Division caseworker's entry in a contact sheet reflects that in

September 2012, the maternal grandmother stated she wanted to adopt her

grandsons Xander and Kevin. This statement is of only partial relevance

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24
concerning Kevin, since the placement of Xander is not challenged and he is

not one of the six children at issue in this case.

The Division again discussed adoption and KLG with the maternal

grandmother in 2013. The contact sheets from that time period reflect that the

maternal grandmother again was willing to adopt Xander and Kevin, and she

apparently filled out adoption "paperwork."

According to a later contact sheet on August 7, 2015, the maternal

grandmother told a caseworker, in conditional words, that she would "consider

obtaining sole custody of [Xander and Kevin] if she will be able to obtain

public assistance for them." (Emphasis added). The maternal grandmother

further ambiguously stated to the caseworker "she is also willing to adopt or

get KLG for [Kevin and Xander]." (Emphasis added).

On October 2, 2015, a caseworker met with the maternal grandmother,

who informed the caseworker she believed the Division was planning to return

Xander and Kevin to their mother. According to the contact sheet, the

maternal grandmother at that time "mentioned that she does not want to adopt

[the two boys] because she does not believe [the mother] is such a bad parent

that deserves her parental rights to be terminated." (Emphasis added).

Additionally, the entry states that the maternal grandmother "indicated that she

has been reading about KLG in the Division's web page and she is considering

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25
doing KLG for [Xander and Kevin]." (Emphasis added). The caseworker

advised the maternal grandmother to "talk with the local [Division] office

worker and supervisor to discuss the matter." Later that month, the court

ordered the children to be immediately reunited with the mother.

The Division removed the children from the mother and father once

again in July 2016 following the mother's positive drug test at Zadie's birth.

The children were thereafter placed respectively with the maternal

grandmother and the maternal great aunt.

On September 22, 2016, a caseworker spoke with the parents about the

possibility of entering into a KLG for Kevin with the maternal grandmother.

The parents stated they wanted to be reunified with all of their children. The

mother expressed concerns that KLG would "build a wedge" between her and

the maternal grandmother.

A few months later, on December 13, 2016, the maternal great aunt

reportedly told a caseworker that, with respect to the children in her care, s he

was "willing to adopt or do kinship legal guardianship as long as she

receive[d] financial assistance." (Emphasis added).

Further discussions with the resource parents concerning adoption and

KLG occurred in 2017. On March 21 of that year, the maternal grandmother

reportedly told a caseworker that she had "researched" KLG and adoption, and

A-3597-17T2
26
that she "underst[ood]" the difference between them. The contact sheet

indicates the maternal grandmother "did not want to discuss KLG and adoption

because [she felt] her opinion on the matter was not acknowledged last time."

In particular, the maternal grandmother reportedly stated that she had "wanted

KLG with [Kevin and Xander] and the children were [nonetheless] reunified"

with their mother. 6 The maternal grandmother articulated frustration that she

had "addressed the judge and expressed her stance [but] reunification still

proceeded." Reportedly, the maternal grandmother further stated she did not

think the mother and father were ready to parent "because they did not have

the proper resources," and that "she did not want the children to be moved"

from her own care.

That same day, March 21, 2017, the caseworker separately met with the

maternal great aunt, and reviewed with her the differences between adoption

and KLG. According to the contact sheet, the maternal great aunt reportedly

6
This is confusing, because the maternal grandmother had seemingly
expressed a previous desire to adopt, not to have KLG. The trial testimony
does not enlighten us as to whether this was a misperception of the maternal
grandmother's actual comment or whether the grandmother may have been
confused.

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27
stated at that time "she is willing to adopt," and she signed an acknowledgment

"receipt" confirming that. 7

On April 5, 2017, a caseworker met with the maternal grandmother and

again reportedly discussed with her the differences between adoption and

KLG. This contact sheet contains a somewhat confusing entry, indicating that

the maternal grandmother "felt more comfortable with proceeding with a plan

for permanency." The comment does not clarify what the maternal

grandmother meant by this, since both adoption and KLG involve permanent

future relationships. Apparently, the maternal grandmother reportedly did

state that she "understood it was the court that authorized KLG or adoption,"

rather than the Division. The contact sheet also stated that the maternal

grandmother was "committed to the children long term, via adoption, if the

courts approve termination of parental rights." (Emphasis added).

Later, the maternal grandmother reportedly told the caseworker on

August 17, 2017, in response to a question about her "stance on adoption," that

she was "committed to her grandchildren and will adhere by [sic] whatever the

court decides." (Emphasis added). The contact sheet and the trial testimony

do not make clearer what this meant.

7
The "receipt" does not appear to be in the trial record.

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28
 Meanwhile, another contact sheet reflects on July 11, 2017, the maternal

great aunt reportedly told the caseworker that she had read a "fact sheet"

concerning adoption and KLG. According to the contact sheet, this review by

the maternal great aunt "satisfied her concerns," and she was willing to adopt

Zarah, Zena, and Zadie.

Following Zelda's birth in September 2017, the newborn child was

placed in the maternal grandmother's care with Kevin and Larry. The

caseworker met with the maternal grandmother on September 12, who

reportedly stated that she "wanted to adopt the three children" and that she was

"committed to caring for them long term."

Another contact sheet states that on December 21, 2017 the maternal

grandmother told the caseworker that she hopes to move to another state after

the adoption of the children in her care. According to the contact sheet, the

maternal grandmother stated that the area in which she lived had become

unsafe and she wanted to move the children to a safer neighborhood. This

contact sheet also reflects that the maternal grandmother spoke with the

caseworker about how she became interested in adopting the children in her

care.

After the Division's expert, Dr. Wells, performed bonding evaluations on

December 14, 2017, with the children and the maternal great aunt, Dr. Wells

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29
issued a report on January 28, 2018. The report states that the maternal great

aunt "has committed to adoption" of Zarah, Zena, and Zadie, and that she is

"committed to permanency via adoption." Dr. Wells's analysis does not refer

to KLG, apart from mentioning it in the factual background. Dr. Wells also

submitted an expert report that same day summarizing her bonding evaluation

of the maternal grandmother. The report similarly states the maternal

grandmother "has indicated that she is committed to adoption of [Kevin, Larry,

and Zelda], if they become legally free." Again, the expert report does not

expressly mention KLG beyond the factual background.

Dr. Wells's trial testimony did not illuminate any further the resource

parents' desires with respect to adoption versus KLG. Her testimony did not

mention KLG, and none of the attorneys asked her about the subject.

In his own expert report dated February 2, 2018, Dr. Katz indicated that

the maternal grandmother had stated to him that "she had tried adoption before

with the 2 older children [i.e., Xander and Kevin], and that is when the judge

had given them back to the biological parents." According to Dr. Katz, the

maternal grandmother told him "she is seeking adoption this time." Dr. Katz's

report is inconsistent, however, with regard to the maternal great aunt's

intentions:

[The maternal great aunt] said she will adopted [sic]
the children if the case goes that way. [The maternal

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30
 great aunt] said she prefers KLG over adoption. [The
maternal great aunt] said she feels adoption will be
more stable for the children.

[The maternal great aunt] said the parents have open
visitation at her home. [The maternal great aunt] said
the parents come to visit the children about 2 or 3
times a month. [The maternal great aunt] denied that
there have been any problems with the visits. [The
maternal great aunt] said she would continue to have
open visits, even if the children were adopted.

[(Emphasis added).]

At trial, Dr. Katz testified, after an overruled hearsay objection by the

Division's attorney, that the maternal great aunt had told him that "she

preferred KLG over adoption."

The two Division staff members who testified at trial provided only

limited information on these critical subjects. The caseworker who testified

had not been assigned to this case until October 2017. The other Division

witness, a supervisor, had been the supervisor on the case between October

2015 and about July 2017, and previously had been involved with the family in

2011 or 2012.

The caseworker for the Division provided incomplete testimony on the

subject of the resource parents' intentions. On cross-examination by the

father's trial attorney, the caseworker testified as follows:

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31
 Q Starting first with the maternal great aunt,
did you take any steps to discuss KLG versus adoption
with her?

A With --

Q With -- with -- with the aunt.

A [The maternal great aunt] or --

Q Yes. Yes.

A Did I take any steps?

Q Right.

A Yes. When I first met her [the maternal great
aunt], we talked about my role, and I said that I would
be an adoption worker, and she talked about that she
was just at court and that they did discuss KLG versus
adoption, and she was saying that -- how she wanted
to adopt the children, and it was the goal that she
wanted.

Q And your conversation with -- with [the
maternal grandmother], did you discuss with her the
differences between KLG and adoption?

A Yes. Well, again, they were also -- we saw them
the same day, and they were at court. And the
conversation was at mediation, so they were just
telling me about what I had heard at court.

Q And did --

A And we did discuss that.[8]

8
The testimony did not go further to convey the desires of the maternal
grandmother.

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32
 Q Did you discuss that subject with them
together?

A No. Different -- they live in different houses.

[The father's trial attorney]: I have no further
questions, Your Honor. Thank you.

[(Emphasis added).]

On cross-examination by the mother's trial attorney, the following limited

testimony was elicited about the maternal grandmother's intentions, before the

Deputy Attorney General objected:

Q You said you did discuss KLG and
adoption with regards to the maternal grandmother,
correct?

A Yes. We did talk about that.

Q Now from your case records, the Division
had discussed those things which happened in the past.
Is that correct?

A Many times. Yes.

Q Isn't it correct that, in fact, she did tell the
Division that she will adopt to avoid the children
being placed outside of her home?

[The Division's trial attorney]: Objection. Hearsay.

THE COURT: It's hearsay.

[(Emphasis added).]

A-3597-17T2
33
 The supervisor explained in her testimony that she had met with the

maternal grandmother and maternal great aunt after a proceeding. 9 According

to the supervisor, she at that time "explained the differences between KLG and

adoption" to the two resource parents, and had them "give the information

back to [her] to make sure they were very clear in their understanding." The

supervisor began to relate that the maternal great aunt was "very adamant that

she felt like the children needed a chance, that they needed permanency." At

that point, defense counsel interposed a hearsay objection, which the court

sustained. On cross-examination, the supervisor did acknowledge that the

term "permanency" can apply to either adoption or KLG.

In counsel's summations at the close of the trial, they discussed KLG.

Defendants advocated KLG, and Kevin's law guardian and the Division

opposed it.

3.

In the analytic portion of her written opinion following the trial, the

judge did not discuss KLG. The opinion does, however, contain this finding,

without elaboration concerning the resource parents' intentions:

The Court has considered alternatives to
[t]ermination and there are no viable alternatives. The

9
The record is murky as to the exact nature of that proceeding and when it
occurred.

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34
 children are placed with relatives who want to adopt
them.

The Court therefore finds that the Division has
met this prong by clear and convincing evidence that
reasonable efforts were offered to the parents. There
are no alternatives to termination of parental rights as
the foster parents want to adopt.

While this appeal was pending, the Law Guardian moved for this court

to supplement the record by tendering signed post-trial certifications dated

November 10 and 14, 2018, from both the maternal grandmother and the

maternal great aunt, in which they attested that they are each committed to

adopting the children in their care. Defense counsel opposed that motion,

because the certifications were not part of the record presented to the trial

judge and defense counsel did not have the opportunity to contest or rebut such

proof at trial.10 Another panel of this court denied that motion.

Even if these post-trial evidentiary proffers are considered, the maternal

great aunt does not address or explain the discrepancy between the proffer and

her alleged statement to Dr. Katz that she wanted KLG. Nor does the

certification from the maternal grandmother make clear why her position h as

vacillated in the past, and whether her willingness to adopt is unconditional

and unqualified.

10
The Attorney General took no position on the motion.

A-3597-17T2
35
 4.

Viewing all of these bits of hearsay in their totality, we cannot determine

with confidence from the present record whether the resource parents – by a

level of clear and convincing evidence – are committed unambiguously,

unequivocally, and unconditionally to adoption, regardless of the possible

alternative of KLG. Both resource parents have made equivocal and

ambiguous hearsay statements about this subject at various points in time. For

example, the entry in Dr. Katz's report – and his attempted trial testimony –

attesting that the maternal great aunt told him that she wanted KLG over

adoption is, to say the least, concerning.

The maternal grandmother's hearsay statements seem somewhat more

definitive, but they, too, leave reason to doubt whether she ostensibly favors

adoption based upon a mistaken premise that adoption is the only

"permanency" option, and not KLG. This may not be merely a situation of

"initial reluctance," about adoption, see Div. of Youth & Family Servs. v. S.V.,

362 N.J. Super. 76, 81, 87-88 (App. Div. 2003), but rather one in which one or

both resource parents may be under a mistaken premise. See, e.g., H.R., 431

N.J. Super. at 232-33 (in which we remanded a final judgment of guardianship

because the caretaker mistakenly thought that KLG was unavailable for

children under the age of twelve). Here, the possible mistaken premise, which

A-3597-17T2
36
the court did not allow defense counsel to explore on cross-examination, is

whether the maternal grandmother is willing to adopt because she mistakenly

believes that the children would be removed from her if she stated she favored

KLG.

The omission of any discussion of KLG within the analytic portion of

the trial court's otherwise thorough opinion also gives us pause. The KLG

subject was directly addressed by counsel in their competing arguments during

summations. To be sure, the court's unelaborated finding that adoption is

feasible could be interpreted as an implicit finding that KLG has no bearing or

role in this case. But that finding is based upon a rather confusing ambiguous

record of a series of hearsay assertions by the two resource parents. We

cannot "reverse engineer" the judge's unwritten thought process on the subject.

The judge did not explain or reconcile the vacillating and ambiguous

statements attributed in hearsay from the maternal great aunt and grandmother.

We by no means wish to prolong this litigation for hyper-technical

reasons. We certainly recognize the well-established objective of achieving

the children's permanency. Nevertheless, given the important constitutional

rights that are at stake, and the stringent clear-and-convincing standards of

proof, this record needs to be more definitive on this vital subject.

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37
 We are mindful this is an extended family situation. For many years

there has been frequent and loving contact between the children, their maternal

grandmother, their maternal great aunt, their mother, and their fath er. The

family setting has many characteristics that would seem to make KLG a

potentially feasible alternative to adoption. Of course, if both of the resource

parents truly want to adopt – unequivocally, unambiguously, and

unconditionally and irrespective of KLG – and termination of parental rights

and adoption is clearly in the children's best interests, the final judgment to

that effect should be reaffirmed. For the moment, however, the proofs that

were presented at trial are simply too cloudy to support affirmance on this one

limited, but vitally important, issue.

5.

The matter is therefore remanded for further proceedings to develop the

record more definitively on the adoption/KLG issue and for the rendering of

explicit associated findings of fact and conclusions of law.

We defer to the trial court's discretion as to what forms of proof would

be appropriate at the remand hearing. Subject to potential timely objection, we

do not require, per se, the testimony of either resource parent, as we appreciate

that presenting such testimony and withstanding the rigors of cross-

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38
examination by defense counsel may be stressful for the resource parents and

possibly disharmonious to the whole extended family.

Of course, if one or both of the maternal grandmother or maternal great

aunt are willing to testify nonetheless, we presume the trial court would

welcome such evidence. We also defer to the trial court as to whether any

supplemental expert reports and testimony are appropriate to address these

subjects, given the passage of time and interim events.

We need not resolve here whether it was appropriate for the trial court to

admit or consider certain hearsay statements attributed to the resource parents

about their views concerning adoption and KLG. For one thing, counsel did

not consistently oppose the admission of such hearsay, depending on whether

the particular statement supported or undermined the client's trial strategy. For

example, the Division's counsel presented the contact sheets and testimony

from its witnesses conveying various hearsay statements made by the resou rce

parents, but objected on hearsay grounds when defense counsel comparably

presented testimony from Dr. Katz relating that the maternal great aunt had

told him she preferred KLG. Reciprocally, defense counsel objected to

testimony by the caseworker and supervisor conveying the out-of-court

statements of the resource parents but presented such hearsay through Dr.

Katz.

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 "[H]earsay subject to a well-founded objection is generally evidential if

no objection is made." N.J. Div. of Child Prot. & Permanency v. J.D., 447

N.J. Super. 337, 348-49 (App. Div. 2016). "When objectionable hearsay is

admitted in a bench trial without objection, we presume that the fact-finder

appreciates the potential weakness of such proofs, and takes that into account

in weighing the evidence." Id. at 349. A problem with the present record is

that the resource parents' hearsay was treated in an inconsistent pattern: some

of it was objected to and excluded, and some of it was allowed. On remand,

we trust the hearsay will be handled with consistency. We suggest that a case

management conference be conducted to address these evidential issues in

limine in light of Rule 5:12-4(d) and case law excluding improper embedded

hearsay statements by third parties.

III.

Affirmed in part and remanded in part. The remand shall be completed

within ninety days, unless that deadline is reasonably extended further by the

trial court upon the consent of all counsel. We do not retain jurisdiction. Any

party may pursue a new appeal from the outcome of the remand. Any issues of

interim visitation or contact are reserved for the trial court.

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40