Dcpp v. D.M.K. and T.A.c, Sr., in the Matter of the Guardianship of A.G.C.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3659-24 A-3991-24 NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. D.M.K. and T.A.C., SR., Defendants-Appellants. ________________________ IN THE MATTER OF THE GUARDIANSHIP OF A.G.C., a minor. ________________________ Submitted September 15, 2026 – Decided October 1, 2026 Before Judge Rose and Bishop-Thompson. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-0034-24. Jennifer N. Sellitti, Public Defender, attorney for appellant D.M.K. in A-3659-24 (Catherine Reid, Designated Counsel, on the briefs). Jennifer N. Sellitti, Public Defender, attorney for appellant T.A.C., Sr. in A-3991-24 (Steven Edward Miklosey, Designated Counsel, on the brief). Jennifer Davenport, Attorney General, attorney for respondent (Janet Greenberg Cohen, Assistant Attorney General, of counsel; Michelle McBrian, Deputy Attorney General, on the brief). Jennifer N. Sellitti, Public Defender, attorney for minor A.C. (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Melissa R. Vance, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM In these consolidated matters, defendants D.M.K. (Dee) and T.A.C. (Ty) appeal from a June 30, 2025 Family Part judgment terminating their parental rights to their biological daughter, A.G.C. (Ann), born in 2018,1 and granting guardianship of the child to the Division of Child Protection and Permanency. Neither defendant challenges the trial judge's decision that the Division 1 Consistent with the parties' briefs, we use initials to protect the confidentiality of these proceedings, R. 1:38-3(d)(12), and pseudonyms for ease of reference. A-3659-24 2 established the first and second prongs of the four-part best interests test under N.J.S.A. 30:4C-15.1(a)(1) and (2). Instead, both defendants contest the judge's findings on the fourth prong, N.J.S.A. 30:4C-15.1(a)(4), contending, in large part, the judge impermissibly found termination of their parental rights would not do more harm than good to Ann without bonding evaluations. Ty further claims the judge erroneously determined the Division made reasonable efforts to provide him services under the first part of the third prong, N.J.S.A. 30:4C-15.1(a)(3). Dee argues the absence of expert evidence demonstrates the judge incorrectly found there were no alternatives to the termination of parental rights under the second part of the third prong. Ibid. For the first time on appeal, Dee asserts Ann's law guardian failed to advocate for the child's wishes at trial. The law guardian supported termination before the trial court, and again on appeal, joins the Division urging us to affirm. Based on our review of the trial record and prevailing legal standards, we are satisfied the evidence in favor of the guardianship petition overwhelmingly supports Judge Brian M. English's decision terminating defendants' parental rights, see N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007), and there is no merit to the claims raised on appeal. We therefore affirm. A-3659-24 3 I. The guardianship trial spanned ten days between November 15, 2024 and May 9, 2025. The Division moved into evidence more than thirty exhibits, and presented the testimony of its psychology expert, a caseworker, and two adoption workers. The law guardian called two of Ann's primary resource parents: M.C. (Mary), who had adopted two of Ann's biological brothers, T.A.C., Jr., and C.C.; and K.P. (Kyra), with whom Ann was placed at Dee's request. Dee did not testify, but called Ann who testified in camera in the trial judge's chambers pursuant to questions suggested by the parties and screened by the judge. Ty did not testify or present any evidence on his behalf. The evidence adduced at trial is set forth at length in Judge English's forty- four-page written decision accompanying the judgment and need not be repeated here in the same level of detail. Instead, we incorporate by reference the judge's thorough factual findings and summarize the most significant evidence to lend context to his legal conclusions in view of defendants' arguments before us. Ann is the fifth child born to defendants. They also share four biological children, E.L.C., A.S.C., T.A.C., Jr., and C.C., none of whom are parties to this appeal. Defendants' parental rights to E.L.C. and A.S.C. were terminated in March 2016. Both defendants appealed from the judgment of guardianship. We A-3659-24 4 affirmed. N.J. Div. of Child Prot. & Permanency v. D.M.K., No. A-2870-15 (Apr. 10, 2017) (slip op. at 2). Defendants' parental rights to T.A.C., Jr. and C.C. were terminated in May 2017. Only Ty appealed from the judgment. We affirmed. N.J. Div. of Child Prot. & Permanency v. T.A.C., No. A-4390-16 (Mar. 14, 2018). Dee also has two older biological children, T.S. and X.W., who have different biological fathers and are now adults. T.S., X.W., and their fathers are not parties to this appeal. Dee's history with the Division commenced in 2000, when T.S. was born exposed to methadone. Throughout the years that followed, Dee's other children similarly tested positive at birth for methadone. Defendants consistently abused drugs and were repeatedly incarcerated. Ty's criminal history includes an aggregate nine-year prison term for sexually assaulting two minors and, as such, he is a registered sex offender under Megan's Law.2 The precipitating event that led to the present guardianship complaint occurred shortly after Ann's birth when the hospital advised the Division that Dee and Ann tested positive for methadone. Dee acknowledged she last used heroin around July 2017, and started methadone treatment in August 2017. Ty 2 According to the judgment of conviction, the sentence was imposed consecutively to an unspecified sentence Ty was serving at that time. A-3659-24 5 was incarcerated at the time of Ann's birth. The Division contacted Ty after Ann's birth, but he declined an interview and requested a paternity test. In May 2018, the Division conducted a Dodd removal 3 of Ann. Later that month, with consent of the Division and law guardian, legal and physical custody of Ann was transferred to Dee while she resided in a treatment facility and was involved in its Mommy and Me Program. The return of Ann's full physical and legal custody was contingent upon Dee's compliance with the program. Six months later, however, in November 2018, Dee was denied admission to Drug Court 4 and sentenced to a four-year prison term for an offense committed prior to her residence in the treatment facility. Ty remained incarcerated. The Division placed Ann with Mary, T.A.C., Jr., and C.C. However, the following month, at Dee's request, Ann was removed from Mary's home and placed with Kyra. 3 A Dodd removal is an emergent removal of a minor without a court order pursuant to N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd Act. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17 , 26 n.11 (2011). 4 Effective January 1, 2022, the Drug Court Program was renamed the New Jersey Recovery Court Program. A-3659-24 6 After his release from prison to a halfway house in June 2019, Ty resided in a shelter, then with a relative. In October 2019, Ty was granted supervised visitation with Ann. At that time, the Division's plan was kinship legal guardianship (KLG) placement of Ann with Kyra. Following Dee's release from prison in April 2020, she lived with her father. The next month, Dee was awarded physical custody of Ann. Because of ongoing concerns for substance abuse, Dee's father monitored defendants' contact with Ann. However, by early 2021, both defendants had relapsed. In April 2021, the Division removed three-year-old Ann from Dee's care and placed her with Kyra. In light of defendants' inability to provide a safe and stable home for Ann, despite the Division's efforts, the child was never returned to their custody and underwent a series of placements. In June 2021, at Kyra's request, based on defendants' continued drug use and Ann's behavioral issues after visits with defendants, Ann was removed from her care and briefly placed in another resource home.5 Later that year, in December 2021, the Division filed its guardianship complaint. In March 2022, 5 We glean from the record, Ann's placement in this resource home was short- lived and the child was placed in another home. A-3659-24 7 the Division placed Ann in Kyra's care and dismissed the litigation after Kyra agreed to KLG. But by March 2023, Kyra requested Ann's removal, citing the child's behavioral issues and false allegations of abuse. Once again, Ann was placed with Mary, who declined to consider KLG. In November 2023, the Division refiled its guardianship complaint. By April 2024, Mary requested Ann's removal for various reasons. Ann was transferred to another resource home where she resided at the time of trial. During her March 13, 2025 trial testimony, Mary stated Ann was just shy of six years old when she was returned to Mary's home and immediately called Mary, "Mommy." Mary testified she was willing to adopt Ann when she was placed in her home and would be willing to do so if defendants' rights were terminated. Mary explained she not only adopted Ann's brothers, but also was in contact with Ann's sisters, who were adopted by another family. Ann had just turned seven when she testified in camera. Ann said missing her parents made her feel sad, but she did not recall living with Dee and she was aware Ty was in jail. She further stated she liked visiting Dee because Dee brought her toys. Ann said she liked visiting Ty because they spoke about school. Ann acknowledged Dee told her to advise the judge she wanted to live A-3659-24 8 with Dee. After the judge explained the concept of adoption, Ann asserted she would want Mary to adopt her if she could not live with her parents. After defendants filed their merits briefs, we granted the Division's post- judgment motion to supplement the record. See R. 2:6-11(d)(3). In its motion, the Division advised, on July 10, 2025, Ann was placed with Mary. These appeals followed. 6 II. Well-settled principles guide our limited standard of review. See N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014). We will uphold the court's factual findings if they are "supported by adequate, substantial, and credible evidence" in the record. Ibid. "Concomitantly, reviewing courts should defer to the trial court's credibility determinations." Ibid. We do so because the court "has the opportunity to make first-hand credibility judgments about the 6 After the briefs were filed, the Division moved to strike: point I of Dee's reply brief, which asserted for the first time on appeal the Division's expert rendered a net opinion; and an October 2025 settlement agreement in lieu of a formal disciplinary action included in Dee's reply appendix. We reserved disposition on the motion for consideration by the plenary panel. Having considered the Division's application against the trial record, we now grant the motion. We conclude Dee's argument not only was improperly raised on reply and, as such deemed waived, see Drinker Biddle & Reath LLP v. N.J. Dept. of Law & Pub. Safety, 421 N.J. Super. 489 , 496 n.5 (App. Div. 2011), but also touches on matters outside the record. A-3659-24 9 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 M.M., 189 N.J. at 293 ). Our Supreme Court has reiterated the trial judge's factual findings in a guardianship action "should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice." N.J. Div. of Youth & Fam. 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 review de novo the trial court's legal interpretations. See R.G., 217 N.J. at 552 - 53. In his decision, Judge English made factual and credibility findings in view of the evidence adduced at trial, and cogently analyzed the evidence in light of the statutory "best interests of the child" 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; A-3659-24 10 (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)(1) to (4).] As the judge correctly recognized, the four prongs "are not discrete and separate," but rather "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Because defendants do not contest the trial judge's factual findings and legal conclusions on prongs one and two, Dee does not challenge the judge's findings on the first part of prong three, and Ty does not challenge the judge's findings on the second part of prong three, we could consider any challenges to the findings on these prongs waived. See Ricci v. Ricci, 448 N.J. Super. 546, 567 (App. Div. 2017); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2027). We have nonetheless reviewed Judge English's factual findings on these prongs and are satisfied they are supported by substantial credible evidence in the record, and his legal conclusions are unassailable. See R. 2:11-3(e)(1)(E). A-3659-24 11 A. Ty's Challenges to the First Part of the Third Prong, N.J.S.A. 30:4C-15.1(a)(3) Ty argues the Division shifted the burden to him to seek services the caseworkers requested. For the first time on appeal, Ty suggests the Division failed to assist him in completing a living with children as a sex offender evaluation pursuant to N.J.A.C. 10A:72-2.5 and -2.6 so he could "become a viable placement option for his daughter." In his decision, the trial judge cited the applicable law and made findings regarding the Division's efforts to provide services to both defendants in view of their unabating substance abuse and recurrent imprisonment. The judge found: "It is not apparent to this [c]ourt what more the Division could have done to assist [defendants] in addressing their substance abuse. Certainly, the Division bears no responsibility for the defendants' recurring incarcerations." Citing our decisions in N.J. Div. of Youth & Fam. Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div. 2007), and N.J. Div. of Youth & Fam. Servs. v. S.A., 382 N.J. Super. 525, 535-36 (App. Div. 2006), the judge recognized "the difficulty and likely futility of providing services to a person in custody ." The judge elaborated: The Division's reasonable efforts to aid [defendants] were unsuccessful through no fault of the Division. Indeed, this [c]ourt finds that the Division's A-3659-24 12 efforts to work with [defendants] went well beyond reasonable—extravagant efforts is a more apt description—in that this case has dragged on for far too long, resulting in too much trauma and turmoil for A[nn]. Having considered Ty's contentions in view of the governing law and the trial record, we discern no error in the judge's findings. Our Supreme Court has long recognized, in assessing the reasonableness of the Division's efforts, trial judges must consider whether the parent actively participated in the reunification effort. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). The record demonstrates the Division provided reasonable services to Ty in light of his substance abuse issues and protracted incarcerations. See N.J.S.A. 30:4C- 15.1(a)(3); M.M., 189 N.J. at 285 . During its many years of involvement with the family, the Division offered numerous services to Ty—and Dee—attempting to remediate the substance abuse issues that led to Ann's removal. Those services included referrals for substance abuse evaluations and treatment, mental health evaluations and treatment, and parenting skills services. For example, a caseworker testified at trial the Division repeatedly attempted to place both defendants in treatment programs, but they constantly relapsed. She further testified the Division provided defendants transportation and facilitated visitation with Ann when they were incarcerated. A-3659-24 13 Although we need not address Ty's belated argument concerning the Division's responsibility to effectuate a living with children evaluation, see Ricci, 448 N.J. Super. at 567 , we have nonetheless considered his contentions and conclude they disregard his concession that the Division established prongs one and two under the best interests test. As Judge English noted in his decision, "[Ty] was incarcerated throughout the trial and no evidence was presented on when he was expected to be released from jail." Although the judge recognized "incarceration alone . . . is an insufficient basis for termination of parental rights," R.G., 217 N.J. at 556 , he correctly noted "incarceration is 'probative of whether the parent is incapable of properly caring for or has abandoned the child[,] In re Adoption of Child by L.A.S., 134 N.J. 127, 136-37 (1993).'" Nothing in the record counters the Division's proofs that Ty was incapable of properly caring for Ann. Accordingly, even if he were granted permission to live with Ann, that permission would not have altered the judge's ultimate decision on termination of Ty's parental rights. B. Dee's Challenge to the Second Part of the Third Prong, N.J.S.A. 30:4C-15.1(a)(3) Nor are we persuaded by Dee's assertion the Division's failure to produce an expert bonding evaluation on Ann's relationship with her potential caregivers led to an erroneous finding on the second part of the third prong. Dee claims A-3659-24 14 the judge improperly cited Mary's and Kyra's "emphatic rejections" of KLG "without the benefit of expert advice" on whether there was a "viable alternative to terminating [her] parental rights." To support her argument, Dee cites the Legislature's 2021 amendment to N.J.S.A. 3B:12A-6. As Judge English observed, effective July 2021, the Legislature amended the kinship care statutory framework by enacting L. 2021, c. 154. Recognizing the importance of supporting kinship care and the benefits of retaining the parent-child relationship, the amendments relaxed the qualification requirements for KLG. However, the amendments only revised the second prong of N.J.S.A. 30:4C-15.1(a)(2) by eliminating language that permitted the court to consider the harm separating the child from their resource family parent would cause to the child. Prongs three and four were not altered by the 2021 amendments. See N.J. Div. of Child Prot. & Permanency v. D.C.A., 256 N.J. 4 , 28 (2023) (holding the 2021 amendments do not bar evidence of a child's bond to a current placement under the fourth prong). Accordingly, there is no statutory bar prohibiting a trial court from granting KLG instead of adoption when the caregiver prefers adoption and the Division otherwise proves termination of parental rights is in the child's best interests. The record supports Judge English's finding that Mary and Kyra were A-3659-24 15 informed KLG was an option and both prospective caregivers rejected KLG because of their concerns for Ann's stability. We discern no basis to disturb the judge's decision. C. Defendants' Challenges to the Fourth Prong, N.J.S.A. 30:4C-15.1(a)(4) Defendants argue the trial judge's prong four findings were flawed for various reasons. Ty contends the judge failed to address the strength of Ann's bond with him and the conclusions of the Division's expert constituted unreliable net opinions. Dee asserts the judge improperly "weighed Ann's right to permanency against the parents' constitutional right."7 Both defendants claim, because the record was devoid of any bonding evaluations, the judge's prong four determination was erroneous and, as such, reversal and remand is warranted for the Division to explore alternatives to termination of their parental rights . Generally, to prove the fourth prong, the Division "should offer testimony of a well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parents and the foster parents." N.J. Div. of Youth & Family Servs. v. 7 Without elaboration, Dee also asserts the judge's analysis also applied to the second and third prongs. A-3659-24 16 F.M., 211 N.J. 420, 453 (2014) (quoting M.M., 189 N.J. at 281 ). However, the lack of a bonding evaluation is not fatal where, as in the present matter, termination "was not predicated upon bonding, but rather reflected [the child's] need for permanency and [the parent's] inability to care for h[er] in the foreseeable future." N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996). Moreover, here, defendants failed to complete their psychological and bonding evaluations, notwithstanding several opportunities to do so. In his prong four analysis, the judge recited the applicable legal standards and "ha[d] no doubt that A[nn] loves her parents and does not fear them." Citing our decision in N.J. Div. of Youth & Fam. Servs. v. H.R., 431 N.J. Super. 212, 228 (App. Div. 2013), the trial judge was persuaded "A[nn] holds an idealized perception of her parents in that she has fun visiting with them but doesn't understand that being a parent means so much more than that." Notably, the judge's conclusion that there was "virtually no risk" Ann would become a legal orphan rang true as Ann was placed with Mary after the judge issued the judgment of guardianship. Lastly, we address Dee's argument that the law guardian failed to adequately advance Ann's wishes at trial. The law guardian counters Dee's A-3659-24 17 contention on procedural and substantive grounds, arguing: Dee failed to raise her claim at trial thus we should decline to consider it; because Dee essentially claims the law guardian's representation of Ann was deficient, the claim "belongs to the child, not a parent"; and, in any event, Dee cannot demonstrate the result of the trial would have been different. The Division asserts the law guardian's position at trial was consistent with Ann's desire to live with Mary if she could not live with her parents. On reply, Dee argues she has not asserted an ineffective assistance of counsel claim. "Law guardians are obliged to make the wishes of their clients known, to make recommendations as to how a child client's desires may best be accomplished, [and] to express any concerns regarding the child's safety or well- being." N.J. Div. of Youth & Fam. Servs. v. Robert M., 347 N.J. Super. 44, 70 (App. Div. 2002); see also R. 5:8A. Thus, as a threshold matter, because the law guardian represented Ann—not Dee—in the present matter, Dee likely lacks standing to attack the law guardian's representation of Ann. Assuming for the sake of argument Dee properly raises the claim before us, however, we are not persuaded the law guardian's representation of Ann was ineffective or inappropriate. The record reflects the law guardian advocated consistently with Ann's wishes to be placed with Mary and her brothers if she A-3659-24 18 could not live with her parents. Further, in view of the judge's uncontested finding on the first and second prongs of the best interests test, the law guardian's concerns about Ann's safety and well-being, see Robert M., 347 N.J. Super. at 70 , were consonant with the unrefuted evidence that Dee—and Ty—could not provide a safe and stable home for Ann. We conclude the record evidence fully supports Judge English's factual findings on prong four and his legal conclusions are unassailable. We are satisfied the evidence in favor of the guardianship petition overwhelmingly supports the judge's decision terminating defendants' parental rights. To the extent not addressed, defendants' remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. A-3659-24 19