DCPP v. L.J., A.Q.T. AND A.L.Q., IN THE MATTER OF THE GUARDIANSHIP OF A.L.Q., JR. AND Z.S.J. (FG-11-0002-20, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

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NOT FOR PUBLICATION WITHOUT THE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-0796-21
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
L.J.,
Defendant-Appellant,
and
A.Q.T. and A.L.Q.,
Defendants.
___________________________
IN THE MATTER OF THE
GUARDIANSHIP OF
A.L.Q., JR. and Z.S.J., minors.
___________________________
Submitted September 29, 2022 – Decided October 19, 2022
Before Judges Sumners and Berdote Byrne.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FG-11-0002-20.
Joseph E. Krakora, Public Defender, attorney for
appellant (Patricia Nichols, Assistant Deputy Public
Defender, of counsel and on the briefs).
Matthew J. Platkin, Acting Attorney General, attorney
for respondent (Sookie Bae, Assistant Attorney
General, of counsel; John J. Lafferty, IV, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Noel C. Devlin, Assistant
Deputy Public Defender, of counsel and on the brief).
PER CURIAM
Defendant L.J. (Lynn) 1 appeals from the trial court's October 27, 2021
order terminating her parental rights to A.L.Q. Jr. (Asa), who was born on
November 6, 2013, and Z.S.J. (Zelda), who was born on November 4, 2014.
Lynn argues the trial court erred in finding plaintiff New Jersey Division of
Child Protection And Permanency (Division) proved the four prongs of N.J.S.A.
30:4C15.1(a) (Title 30) because it: 1) improperly considered evidence about
defendant's marijuana usage in light of recent decriminalization statutes; 2)
1
We use initials and pseudonyms to protect the privacy of individuals and the
records of this proceeding. R. 1:38-3(d)(12).
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failed to consider and properly apply amendments to the kinship legal
guardianship statute; 3) inappropriately considered embedded hearsay evidence;
and 4) improperly bifurcated the trial. Lynn also argues the accrual of these
errors, and the failure of trial counsel to identify and object to them at trial,
constitute ineffective assistance of counsel warranting a new trial.
We conclude there exists clear and convincing admissible evidence in the
record on which the trial judge found the Division proved all four prongs of Title
30 and affirm substantially for the reasons set forth by Judge Thomas J. Walls,
Jr. in his well-reasoned and thorough 140-page opinion. We will not recite in
detail the history of the Division's interactions with Lynn. Instead, we
incorporate by reference the factual findings and legal conclusions contained in
Judge Walls, Jr.'s decision. We add the following comments.
A trial court's decision to terminate parental rights is subject to limited
appellate review. N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605
(2007). Indeed, we have "invest[ed] the family court with broad discretion
because of its specialized knowledge and experience in matters involving
parental relationships and the best interests of children." N.J. Div. of Child
Prot. & Permanency v. A.B., 231 N.J. 354, 365 (2017) (alteration in original)
(quoting N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 427 (2012)).
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3
Where a family court relies upon evidence adduced at a hearing, we "defer to
the factual findings . . . because it has the opportunity to make first-hand
credibility judgments about the witnesses who appear on the stand; it has a 'feel
of the case' that can never be realized by a review of the cold record." N.J. Div.
of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of
Youth & Fam. Servs. v. M.M., 189 N.J. 261, 293 (2007)). We defer to family
courts "unless they are so 'wide of the mark' that our intervention is necessary
to correct an injustice." F.M., 211 N.J. at 427 (quoting E.P., 196 N.J. at 104).
Therefore, the family court's decision to terminate parental rights will not be
disturbed "when there is substantial credible evidence in the record to support
the court's findings." E.P., 196 N.J. at 104. We will not second-guess or
substitute our judgment for that of the family court, provided that the record
contains substantial and credible evidence to support the decision to terminate
parental rights. Ibid.Nonetheless, appellate courts "owe no special deference to the trial
[court's] legal determinations." Slawinski v. Nicholas, 448 N.J. Super. 25, 32
(App. Div. 2016). For issues raised for the first time on appeal, the plain error
rule applies. Rule 2:10-2 provides "[a]ny error or omission shall be disregarded
by the appellate court unless it is of such a nature as to have been clearly capable
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of producing an unjust result . . . ." "The mere possibility of an unjust result is
not enough." State v. Funderburg, 225 N.J. 66, 79 (2016). The plain error
standard requires a determination of "(1) whether there was error; and (2)
whether that error was 'clearly capable of producing an unjust result,' R. 2:10-2;
that is whether there is 'a reasonable doubt . . . as to whether the error led the
jury to a result it otherwise might not have reached." State v. Dunbrack, 245
N.J. 531, 544 (2021) (quoting Funderburg, 225 N.J. at 79).
Lynn argues the recent statute decriminalizing marijuana 2 and subsequent
recent case law prohibit the Division from inferring a parent is unfit or incapable
to address a child's needs from a positive marijuana test. She further argues her
marijuana usage was the sole evidentiary pillar of the Division's case against
her, and as such, was unlawful.
After the enactment of the CREAMM Act, we have most recently held
"that a parent's status as a recreational marijuana user cannot suffice as the sole
or primary reason to terminate that parent's rights under Title 30, unless the
Division proves with competent, case-specific evidence that the marijuana usage
endangers the child or children." N.J. Div. of Child Prot. & Permanency v. D.H.,
2
Cannabis Regulatory, Enforcement Assistance, and Marketplace
Modernization ("CREAMM") Act; N.J.S.A. 24:61-31 to -56.
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469 N.J. Super. 107, 113, 134 (App. Div. 2021) (holding trial court had
substantial credible evidence to conclude the Division established all four
prongs of the Title 30 termination criteria). In D.H., we advocated a case-
specific and non-categorical approach to the law, and the Division must still
"demonstrate, by the clear and convincing evidence required under Title 30, that
the parent's usage poses a risk of harm to the child to a degree that satisfies the
first and second prongs of the termination criteria." D.H., 469 N.J. Super. at
133. As with parents who abuse alcohol, which is also legal for recreation use,
termination of parental rights may be appropriate in cases where parents abuse
marijuana to the extent it poses a substantial risk of harm to the child. Id. at
132.
Critically, Lynn's history of marijuana usage, which predated the
decriminalization of certain uses of recreational marijuana, was not the sole
basis of the Division's ongoing involvement with the family, nor was it the basis
for the second removal of the children resulting in termination. Although the
Division first became involved when Lynn and Asa both tested positive for
marijuana in 2013, Lynn tested positive for other substances, including cocaine
and oxycodone in 2015, all prior to a brief reunification with the children in
April 2018. In October 2018, she tested positive for barbiturates and admitted
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to taking unprescribed medication. The children were removed from her a
second time due to housing instability, leaving the children unattended, and her
on-going use of illicit substances, not solely her use of marijuana. Because
Lynn's history of housing instability and leaving the children unattended, in
concert with her illicit drug use, threatened the safety, health, and development
of Asa and Zelda, Judge Walls found these problems would persist and the first
two prongs of Title 30 were met.
Lynn argues the court erred by considering testimony regarding the Kings'
preference for adoption because of changes to portions of prong two in Title 30,
N.J.S.A. 30:4C-15.1(a)(2), and the kinship legal guardian (KLG) statute,
N.J.S.A. 3B:12A-1 to -7. She argues there is now "no place for consideration
of a foster caregiver's connection to a child in guardianship decision -making."
She adds because the legislature removed qualifying language in the KLG
statute, which required consideration of KLG when "adoption of the child [was]
neither feasible nor likely," the new legislation mandates KLG instead of
adoption in order to "ensure uniform judicial decision making" with respect
prongs two, three, and four of Title 30. 3
3
Specifically, she argues "the legislature's intent, to exclude from consideration
harm from removal from a foster caregiver extended beyond simply modifying
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Lynn's interpretation of the amendments is based on the Legislature
eliminating language in Title 30 at N.J.S.A. 30:4C-15.1(a)(2) on July 2, 2021. 4
The Legislature removed from the court's consideration "[s]uch 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."
Compare L. 2015, c. 82, §3 with L. 2021, c. 154, §9. The Legislature also
removed language from the KLG statute at N.J.S.A. 3B:12A-6(d)(3) requiring
the court consider KLG as an option only when "adoption of the child is neither
feasible nor likely." Compare L. 2006, c. 47, §32 with L. 2021, c. 154, §4.
Lynn's interpretation of the legislative amendments is overbroad.
Removing the KLG Act's requirement that a court find adoption "neither likely
nor feasible" before granting KLG is a factor in a determination as to whether
KLG is an appropriate permanency option but has no place in a termination of
parental rights trial. The amendment to the KLG statute now ensures that a
resource parent's willingness to adopt no longer forecloses KLG. Evidence that
establishes a resource parent's clear and informed preference for adoption
the language of prong two . . . the legislature required treating KLG as a viable
permanency option, eliminating qualifying language that did so 'only when
adoption is neither feasible nor likely.'"
4
The amendments to the KLG statute explicitly became effective the same day.
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remains relevant pursuant to Title 30 to a trial court's finding that there are no
alternatives to termination and termination will not do more harm than good.
Even prior to termination, a trial court in a Title 30 case was required to find the
Division had explored alternatives to termination. The change in the KLG
statute reflects a codification to a requirement that existed in prior caselaw. See,
e.g., N.J. Div. of Child Prot. & Permanency v. M.M., 459 N.J. Super. 246, 251-
52, 265 (App. Div. 2019) (remanding for findings on resource caregiver's
preference, if any, of KLG versus adoption as relevant, but not dispositive
considerations).
The KLG amendment did not affect N.J.S.A. 30:4C-15.1(a)(2)-(4), which
still requires the court to consider "the delay of permanent placement will add
to the harm . . . alternatives to termination of parental rights . . . and termination
of parental rights will not do more harm than good."
KLG in this case was not feasible because the Kings, who are not
intrafamily resource parents, expressed unambiguously they do not want to
participate in KLG. Because the best interest analysis in the KLG statute, used
to determine whether KLG is an appropriate permanency plan for a child, is
separate and distinct from the best interest test articulated in Title 30, the
considerations of permanency, alternatives to termination, and more harm than
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good factors must still be considered pursuant to the unchanged plain text of
N.J.S.A. 30:4C-15.1(a)(2)-(4). The only amendment to Title 30 occurred to
prong two, which no longer requires the court weigh the potential harm caused
to a bond between the child and their resource parent in its determination of
whether delay of permanent placement will add to the harm facing the child.
The KLG amendment does not negate the separate considerations
articulated in prongs two, three, and four, requiring the Division prove delay of
permanent placement will add to the harm, the Division explored alternatives to
termination, and termination of parental rights will not do more harm than good.
N.J.S.A. 30:4C-15.1(a)(2) - to 15.1(a)(4).
Lynn further argues the trial court's ordering of the witnesses, and
reference to portions of one witness' testimony in its opinion regarding Lynn
constituted impermissible joinder [sic] because the trial judge had severed the
trial by limiting testimony on the first day of trial with respect to only Art's
parental rights, the only day that witness testified.
There was no bifurcation of trial, as noted specifically on the record and
the absence of an order bifurcating trial. Instead, Judge Walls correctly
exercised his discretion in the ordering of witness testimony. See N.J.R.E. 611
affording a trial judge broad discretion in the manner witnesses testify. See
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Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 1 on N.J.R.E.
611(a) (2022) ("Under N.J.R.E. 611 the trial court is given broad discretion to
'exercise reasonable control over the mode and order of interrogating witness es
and presenting evidence' to effectuate the purposes set forth in the rule, i.e.
ascertaining truth, using time effectively and avoiding embarrassment of
witnesses.").
Defendant and her counsel were present and had the opportunity to cross-
examine every witness. Judge Walls referenced this one witness' testimony
briefly with respect to prongs one and two of Title 30 but used this testimony in
tandem with other substantial credible evidence in the record regarding Lynn's
history of substance abuse, housing instability, and noncompliance with services
to find the Division met its burden. The facts testified to by the witness were
part of the Division's record and testified to by other witnesses, including the
Division caseworkers. For example, the fact that Zelda suffers from sickle cell
anemia is readily discernible from the undisputed record.
Lynn also challenges the trial court's admission and use of certain
evidence. Lynn argues the trial court considered embedded hearsay and
challenges the omission of certain documents admitted into evidence but not
explicitly referenced in the opinion and documents used to refresh witness
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recollection, arguing they were improperly considered as admitted evidence.
She does not demonstrate how alleged references to hearsay led to an unjust
result by undermining the otherwise undisputed record. "[W]hen objectionable
hearsay is admitted in a bench trial without objection" there exists a presumption
"the fact-finder appreciated[d] the potential weakness of such proofs, and takes
that into account in weighing the evidence." N.J. Div. of Child Prot. &
Permanency v. J.D., 447 N.J. Super. 337, 349 (App. Div. 2016). Further, a trial
court is given "considerable latitude" in admitting or excluding evidence, and
reversal is warranted only if "manifest denial of justice resulted." N.J. Div. of
Child Prot. & Permanency v. N.T., 445 N.J. Super. 478, 492 (App. Div. 2016).
Finally, Lynn argues her trial counsel was ineffective because it failed to
apprise the court of the changes in the law, specifically related to the CREAMM
Act and the KLG statute. Counsel's failure to advance an interpretation of the
law does not satisfy an ineffective assistance of counsel claim, particularly
where the interpretation is premised on a flawed interpretation. The failure to
raise a different argument which lacks support in law will not satisfy the
standard. See State v. Echols, 199 N.J. 344, 360-61 (2009) (holding trial counsel
was not ineffective for failing to raise a losing argument.).
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Judge Walls specifically acknowledged the change in the guardianship
statute, which occurred during trial, in his opinion and found the Division
discussed KLG with the Kings, who nonetheless expressed a clear desire for
adoption. This argument does not merit further consideration pursuant to Rule
2:11-3(e)(1)(E).
In sum, although the CREAMM Act decriminalized possession of
marijuana and certain usage, clear and convincing evidence of Lynn's abuse of
other illicit substances was presented at trial. Judge Walls did not commit
reversible error considering testimony regarding kinship legal guardianship
because consideration of that testimony was relevant and mandated by the
second, third, and fourth prongs of Title 30. Further, the record reflects no order
bifurcating the trial; instead, it demonstrates the court heard witness testimony
to accommodate the schedules of counsel and the parties. Finally, Lynn's trial
counsel was not ineffective, and she fails to articulate how failure to object to
certain evidence sufficiently prejudiced her to warrant a remand and new trial.
We believe Lynn's desire to parent her children is sincere. However, the
overarching question in a Title 30 best interest analysis is "whether the parent
can become fit in time to meet the needs of the children." N.J. Div. of Youth &
Fam. Servs. v. F.M., 375 N.J. Super. 235, 263 (App. Div. 2005); see also N.J.
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Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 512 (2004) (indicating that
even if a parent is trying to change, a child cannot wait indefinitely). After
carefully considering the evidence, Judge Walls reasonably determined Lynn is
unable to parent the children and will not be able to for the foreseeable future.
Under these circumstances, we agree with the judge that any further delay of
permanent placement would not be in the children's best interests.
Affirmed.
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