DCPP VS. L.M.A. AND A.C. IN THE MATTER OF THE GUARDIANSHIP OF A.L.C. AND S.M.C. (FG-07-0157-16, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)(CONSOLIDATED)

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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-4929-15T3
A-4931-15T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

L.M.A. and A.C.,

Defendants-Appellants.
_________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF A.L.C. and S.M.C., Minors.
_________________________________

Submitted May 15, 2018 – Decided June 11, 2018

Before Judges Reisner, Hoffman, and Mayer.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FG-07-0157-16.

Joseph E. Krakora, Public Defender, attorney
for appellant A.C. (Victor E. Ramos, Assistant
Deputy Public Defender, of counsel and on the
briefs).

Joseph E. Krakora, Public Defender, attorney
for appellant L.M.A. (Ruth A. Harrigan,
Designated Counsel, on the briefs).
 Gurbir S. Grewal, Attorney General, attorney
for respondent (Jason W. Rockwell, Assistant
Attorney General, of counsel; Jaclyn Parks and
Lisa J. Rusciano, Deputy Attorney Generals,
on the briefs).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Todd Wilson,
Designated Counsel, on the brief).

PER CURIAM

Defendants L.M.A. (Lisa)1 and A.C. (Anthony), appeal from a

June 29, 2016 order terminating their parental rights to their

children A.L.C. (Andrew), born in April 2014, and S.M.C. (Sarah),

born in April 2015. Lisa also appeals from a January 16, 2018

order, entered after a remand from this court, denying her motion

to vacate the guardianship order pursuant to Rule 4:50-1. The

children's Law Guardian, and the Division of Child Protection and

Permanency (Division), contend that we should affirm the orders

on appeal.

After reviewing the record, we affirm the June 29, 2016 order,

substantially for the reasons stated by Judge Stephen J. Bernstein

in his oral opinion issued on the same date as the order. Judge

Bernstein's factual findings are supported by substantial credible

evidence, including his evaluation of witness credibility, and

based on those findings his legal conclusions are correct.

1
We use initials and pseudonyms to protect the parties' privacy.

2 A-4929-15T3
 Finding no abuse of the trial court's discretion in denying

Lisa's Rule 4:50-1 motion on remand, we affirm the January 16,

2018 order substantially for the reasons stated by Judge David B.

Katz in his opinion of the same date.2

I

For purposes of this opinion, we summarize the most pertinent

trial evidence. Both defendants have multiple children – with

multiple partners - in addition to Andrew and Sarah. Neither

defendant has been able to care for any of those children; they

are all either living with another biological parent or in foster

care.3

Anthony has a significant criminal history and was

incarcerated for over a year while this case was pending. His

history includes a 2005 arrest for allegedly molesting a male

child. In his testimony at the guardianship trial, Anthony did

not deny touching the child inappropriately, although he asserted

that the charges were dropped because there was no "penetration"

2
Because Judge Bernstein was unavailable to handle the remand
within the time frame set forth in our remand order, the case was
reassigned to Judge Katz.
3
As noted later in this opinion, defendants had a third child
together after the Division obtained custody of Andrew and Sarah.
The Division filed a separate guardianship action concerning that
child, which resulted in termination of defendants' parental
rights.

3 A-4929-15T3
and the parents did not cooperate with the prosecution. Anthony

also admitted beating one of Lisa's other children with a belt,

although he denied the child's allegation that Anthony punched

him. Significantly, Anthony also has a documented history of

domestic violence. He admitted assaulting his ex-wife, and he

admitted assaulting Lisa when some of their children were present.

At the time of the guardianship trial, Anthony had no concrete

plans to parent his children. Instead, he planned to move out of

state and reunite with his ex-wife.4 The Division presented

unrebutted expert testimony that Anthony was not a psychologically

fit parent and had no bond with the children. The trial judge

credited that testimony.

The record supports the conclusion that Lisa was unable or

unwilling to protect the children from Anthony, and she was

unwilling to end their relationship. Initially, she abetted

Anthony in his efforts to conceal his identity and thus conceal

his criminal record, including the 2005 sexual assault charge and

convictions for aggravated assault and weapons possession. Later,

she minimized and denied his acts of domestic violence, and brought

4
In his trial testimony, Anthony asserted that, in the
alternative, he might move with the children to Ohio, using money
he would purportedly obtain from cooperating with criminal law
enforcement authorities. The trial court later described
Anthony's plans as "pie in the sky."

4 A-4929-15T3
the children to visit Anthony despite a court order that he have

no contact with them. She lied about her own continued

relationship with Anthony, even concealing the fact that she had

another child (Anna) with him, after telling the Division that

their relationship was over.5

Lisa also failed to deal with her drug problems. She attended

several drug treatment programs but relapsed in January 2016.

Thereafter, even as the June 2016 trial approached, she repeatedly

tested positive for drugs, including oxycodone, oxymorphone, and

marijuana. She gave birth to Anna, her sixth child, on April 20,

2016, and tested positive for marijuana at the birth.

Some additional details will further illustrate Anthony and

Lisa's toxic relationship and Lisa's inability to protect the

children. On August 8, 2014, Anthony brutally attacked Lisa. The

police found Lisa wandering in the street with one of her older

children and Andrew, who was then a baby. Lisa was bleeding and

bruised. She had a bite mark on her face, and bruises and bite

marks on her body. Nonetheless, Lisa initially denied that Anthony

had assaulted her and refused to sign a complaint. She later

refused to acknowledge to the Division that their relationship was

5
Anthony participated in the deception as well, denying that
Anna was his child until the court ordered him to take a paternity
test. We granted the Division's motion to supplement the record
with that information.

5 A-4929-15T3
marked by domestic violence, and she repeatedly refused to attend

domestic violence counseling. In October 2014, the Division

obtained custody of Andrew and all of the other children living

with Lisa, due to evidence of a continuing pattern of domestic

violence and Lisa's persistent failure to keep Anthony away from

the children.

Despite a court order precluding Anthony from having contact

with any of the couple's children, when Lisa was eventually allowed

unsupervised visitation with the children, she brought them to

visit Anthony at a halfway house where he was incarcerated. She

then denied doing this, until the Division confronted her with the

institution's security video showing that she was present with the

children.

When Lisa became pregnant with Sarah, she tried to conceal

the pregnancy from the Division. Due to concerns about the child's

safety, the agency took custody of Sarah on April 29, 2015, three

days after her birth.

Lisa's pattern of deception continued as the case was pending.

During a February 22, 2016 psychological evaluation with Dr.

Singer, Lisa minimized her drug problem and denied that she was

pregnant. At that time, Dr. Singer recommended that the Division

give Lisa another four months to address her problems. When the

Division notified Dr. Singer that Lisa had relapsed into drug use,

6 A-4929-15T3
and that she recently had a sixth child while testing positive for

marijuana, he recommended a re-evaluation. Dr. Singer's second

evaluation, on May 19, 2016, led to his recommendation that Lisa

was unable to safely parent Andrew and Sarah. Notably, Dr. Singer

opined that, even if Lisa successfully completed a drug treatment

program, she would need at least a year of complete sobriety before

she could possibly safely regain custody of the children. Dr.

Singer also testified that Lisa suffered from depression and

appeared to be self-medicating with illegal drugs instead of taking

her prescribed psychiatric medication.

Sarah has been living in foster care since two days after she

was born. On April 4, 2016, a few months before the guardianship

trial began, she was moved to the same resource home where Andrew

was living. Sarah has no parent-child relationship with either

Lisa or Anthony. She was still a baby when Dr. Singer performed

a bonding evaluation with the resource parents in 2016, but

according to Dr. Singer, she had the beginning of a bond with

them. She has now lived with the resource family for an additional

two years.

Andrew has been with the same resource family since 2014, and

they have become his psychological parents. According to Dr.

Singer, although Andrew has a bond with Lisa, it is not the same

as his parent-child connection with the resource parents. They

7 A-4929-15T3
could mitigate any harm that would occur if Lisa's parental rights

to Andrew were terminated. Anthony was incarcerated or subject

to a no-contact order for most of Andrew's life, and Andrew has

no parent-child relationship with him.

In his oral opinion, Judge Bernstein found that the Division

had satisfied the four prongs of the best interests test, N.J.S.A.

30:4C-15.1(a), and that termination of defendants' parental rights

was in the children's best interests. He found that the children's

need for a stable and permanent home was paramount and neither

parent could provide that home.

The judge found that Anthony was Lisa's "kryptonite" – a

destructive force in her life – but she could not disentangle

herself from the relationship. He also found that Lisa was

persistently deceptive, and her refusal to acknowledge her

problems stymied the Division's many attempts to provide her with

services. The judge accepted Dr. Singer's opinion that Lisa could

not safely act as a parent and was unlikely to be able to do so

in the future.

The judge likewise found that Anthony could not safely parent

the children. He found that Anthony had no parent-child

relationship with the children, and had no realistic plan to care

for them. The judge also found that Anthony could not safely care

for the children due to his lack of stability, his history of

8 A-4929-15T3
violent conduct, and his failure to cooperate with the Division's

multiple efforts to provide him with drug treatment.

II

To obtain termination of parental rights, the Division must

satisfy all four prongs of the following test:

(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 Division has made reasonable efforts
to provide services to help the parent correct
the circumstances which led to the child's
placement outside the home and the court has
considered alternatives to termination of
parental rights; and

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

[N.J.S.A. 30:4C:15.1(a).]

These four prongs are neither discrete nor separate, but

overlap "to provide a comprehensive standard that identifies a

child's best interests." N.J. Div. of Youth & Family Servs. v.

F.M., 211 N.J. 420, 448 (2012) (citation omitted); In re

Guardianship of K.H.O., 161 N.J. 337, 348 (1999). "The

9 A-4929-15T3
considerations involved are extremely fact sensitive and require

particularized evidence that address[es] the specific

circumstances in the given case." N.J. Div. of Youth & Family

Servs. v. R.G., 217 N.J. 527, 554 (2014) (citation omitted)

(alteration in original). The Division must prove by clear and

convincing evidence all four statutory prongs. Ibid.

Our review of the Family Part judge's decision in a

guardianship case is limited. R.G., 217 N.J. at 552. "[T]he

trial court's factual findings should be upheld when supported by

adequate, substantial, and credible evidence." Ibid. We accord

deference to factual findings of the Family Part given its

"superior ability to gauge the credibility of the witnesses who

testify before it and because it possesses special expertise in

matters related to the family." F.M., 211 N.J. at 448. We will

not overturn a family court's findings unless they were "so wide

of the mark that the judge was clearly mistaken." N.J. Div. of

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

We will not disturb a trial court's ruling on a Rule 4:50-1

motion, absent "a clear abuse of discretion." Hous. Auth. of

Morristown v. Little, 135 N.J. 274, 283 (1994).

III

On this appeal, Lisa presents the following points of

argument:

10 A-4929-15T3
POINT I: THE LOWER COURT ERRED IN ITS
CONCLUSION THAT TERMINATION OF PARENTAL RIGHTS
WAS IN THE BEST INTEREST OF THE CHILDREN
BECAUSE THE FOUR PRONGS OF THE BEST INTERESTS
TEST WERE NOT PROVEN BY CLEAR AND CONVINCING
EVIDENCE.

(A)

REVERSAL IS WARRANTED BECAUSE THE EVIDENCE
PRESENTED DID NOT SUPPORT THE LOWER COURT'S
CONCLUSION THAT ANDREW AND SUSAN'S SAFETY,
HEALTH OR DEVELOPMENT WAS OR WILL CONTINUE TO
BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

(B)

THE COURT'S CONCLUSIONS THAT LISA WAS UNABLE
OR UNWILLING TO ELIMINATE THE HARM FACING HER
CHILDREN AND UNWILLING OR UNABLE TO PROVIDE A
SAFE AND STABLE HOME ENVIRONMENT WERE
ERRONEOUS.

(C)

THE TRIAL JUDGE ERRED IN HIS DETERMINATION
THAT DCPP SATISFIED THE REASONABLE EFFORTS
STANDARD BECAUSE IT FAILED TO PROVIDE SERVICES
THAT WERE REASONABLE UNDER ALL THE
CIRCUMSTANCES AND THE COURT DID NOT EXPLORE
ALTERNATIVES TO TERMINATION.

1. THE TRIAL JUDGE ERRED IN HIS
DETERMINATION THAT DCPP'S
UNREASONABLE COOKIE CUTTER
APPROACH, RATHER THAN TAILORED
SERVICES, SATISFIED THE THIRD PRONG
OF THE TEST.

2. THE TRIAL JUDGE ERRED IN HIS
DETERMINATION THAT DCPP SATISFIED
THE THIRD PRONG OF THE BEST INTEREST
TEST BECAUSE IT PROVIDED SERVICES
THAT WERE NOT APPROPRIATE UNDER THE
CIRCUMSTANCES AND THAT VIOLATED THE

11 A-4929-15T3
 PROVISIONS OF THE AMERICANS WITH
DISABILITIES ACT. (42 U.S.C. § 12101
ET SEQ.) (NOT RAISED BELOW)

3. THE TRIAL JUDGE FAILED TO MAKE
A DETERMINATION THAT DCPP
CONSIDERED ALTERNATIVES TO
TERMINATION.

(D)

REVERSAL IS WARRANTED BECAUSE THE EVIDENCE
PRESENTED DID NOT SUPPORT THE LOWER COURT'S
CONCLUSION THAT TERMINATION OF PARENTAL RIGHTS
WOULD NOT DO MORE HARM THAN GOOD.

We decline to address Lisa's arguments directed to the

Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213,

because they were not presented to the trial court. See Zaman v.

Felton, 219 N.J. 199, 226-27 (2014). However, even if we consider

the arguments they are without merit, because the Division's

failure to comply with the ADA is not a defense to a guardianship

action. See N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.

Super. 418, 442 (App. Div. 2001). Lisa's related argument, that

the Division failed to provide services "tailored" to her

psychological needs, was not supported by any expert or lay

testimony. In fact, Lisa did not present any witnesses at the

trial.

Contrary to Lisa's arguments, substantial credible evidence

supports the judge's findings as to the first three prongs of the

best interests test. Lisa contends that the Division did not do

12 A-4929-15T3
enough to convince her to attend domestic violence counseling. We

disagree. The Division repeatedly referred Lisa for counseling.

She chose not to attend. The agency is not required to force a

parent to accept services. Lisa attempts to present her drug

problems in a positive light by arguing that she was "making

progress toward sobriety" at the time of the trial. However,

viewed in the light most pertinent to her children's welfare, even

as the trial date approached she was still abusing oxycodone and

other drugs and was not able to safely parent the children.

The record also supports a finding that the Division

appropriately considered possible relative placements. A few

months before the trial, Lisa put forth her mother as a possible

alternate placement. At that point, Andrew had been with the same

resource family for nearly four years, and Sarah was thriving in

the same pre-adoptive home. There was no evidence that the

grandmother was ready, willing or able to adopt the children.

Likewise, substantial credible evidence supports Judge

Bernstein's finding that the Division satisfied the fourth prong

of the best interests standard. Lisa's appellate arguments,

presented prior to the remand, are without sufficient merit to

warrant further discussion. R. 2:11-3(e)(1)(E).

Lisa's post-remand arguments, relating to her Rule 4:50-1

motion, are without sufficient merit to warrant discussion beyond

13 A-4929-15T3
that set forth in the trial court's opinion and these brief

additional comments. Her belated completion of a drug treatment

program and an eight-session domestic violence program does not

warrant vacating the order terminating her parental rights to

these children. There is no evidence that Lisa has made the kind

of dramatic turnaround in her life, as occurred in In re

Guardianship of J.N.H., 172 N.J. 440 (2002).

As importantly, unlike the child in J.N.H., there is no

evidence that Andrew and Sarah are suffering from severe adjustment

problems in foster placement. Id. at 479-80. At the time of the

guardianship trial, both children were thriving in a stable

placement with resource parents who were committed to adopting

them. Lisa presented no evidence that those circumstances have

changed. Hence, there was no basis to re-visit the trial court's

original findings as to the children's best interests. Ibid. Nor

was there a need to hold a plenary hearing on the remand. As

Judge Katz noted, after a recent guardianship trial involving yet

another of Lisa's children, the court terminated her parental

rights despite the current evidence of her drug treatment and DV

classes.

IV

In his appeal, Anthony presents the following points of

argument:

14 A-4929-15T3
I. TERMINATION OF A.C.'S PARENTAL RIGHTS WAS
NOT WARRANTED UNDER THE "BEST INTERESTS TEST"
OF N.J.S.A. 30:4C-15.1A.

A. The Court Erred In Deeming The First Prong
Of The Test Satisfied By Clear And Convincing
Evidence Where A.L.C. Was Not Endangered By
The Circumstances That Resulted In His Removal
And S.M.C. Was Born Several Months Thereafter,
Where The Basis Of A.C.'S Incarceration Would
Not Have Endangered The Children, A.C. Worked
And Assisted L.M.A. With Household Expenses
Prior To Incarceration And A.C. Pursued
Services While Incarcerated.

B. The Court Erred In Deeming The Second Prong
Of The Test Satisfied By Clear And Convincing
Evidence Where A.C. Engaged In Services While
Incarcerated, Maintained Housing And
Employment By The Time Of Trial And Provided
Alternate Permanency Plans For The Two
Children.

C. The Court Erred In Finding Prong Three Of
The Test Satisfied Where DCPP Was Aware Of
Services Recommended By An Evaluating
Psychologist But DCPP Did Not Provide, Discuss
Or Encourage A.C. To Avail Himself Of Those
Services And Where The Court Failed To
Consider The Merits Of R.A. As A Potential
Relative Caretaker.

1. The Record Does Not Support a
Finding That DCPP Made Reasonable
Efforts to Provide Services to
Reunify The Family.

2. The Record Does Not Establish
that the Court Below Considered
Alternatives to Termination of
Parental Rights.

D. The Court Erred In Deeming the Fourth Prong
Satisfied by Clear and Convincing Evidence
Where The Bonding Evaluation Represented

15 A-4929-15T3
 A.C.'S First Contact With His Children in Over
a Year, DCPP's Expert Could Not Conclude a
Bond Existed Between S.M.C. and the Foster
Parents, And the Expert Prioritized Parenting
Capacity, Which A.C. Had Clearly Demonstrated,
Above the Bonding Evaluation.

Those contentions are without sufficient merit to warrant

discussion, beyond the following comments. See R. 2:11-

3(e)(1)(E). Anthony minimizes the extent of his domestic violence,

which resulted in Andrew being placed in foster care. Like Lisa,

Anthony also fails to acknowledge the harmful effect on children

of remaining in foster care because their parents cannot get their

lives in order. See In re Guardianship of D.M.H., 161 N.J. 365,

379 (1999). He blames the Division for his own failure to take

advantage of services the Division tried to arrange for him. To

the extent that the Division focused greater effort on providing

services to Lisa, it acted reasonably, because Anthony told the

Division that he planned to move out of state and let Lisa parent

the children.

Affirmed.

16 A-4929-15T3