RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2850-15T4

NEW JERSEY DIVISION OF 

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

L.M.W.,

Defendant-Appellant,

and

J.R., (deceased),

Defendant.

————————————————————————————

IN THE MATTER OF THE

GUARDIANSHIP OF J.R., a

Minor.

————————————————————————————

Argued September 26, 2017 – Decided

Before Judges Reisner, Hoffman and Mayer.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Sussex County, 

Docket No. FG-19-0019-14.

Anastasia P. Winslow, Designated Counsel, 

argued the cause for appellant (Joseph E. 

Krakora, Public Defender, attorney; Ms. 

Winslow, on the briefs).

NOT FOR PUBLICATION WITHOUT THE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.

October 25, 2017
2 A-2850-15T4

Victoria A. Galinski, Deputy Attorney General, 

argued the cause for respondent (Christopher 

S. Porrino, Attorney General, attorney; Andrea 

M. Silkowitz, Assistant Attorney General, of 

counsel; Ms. Galinski, on the brief).

Christopher A. Huling, Designated Counsel, 

argued the cause for the minor (Joseph E. 

Krakora, Public Defender, Law Guardian, 

attorney; Mr. Huling, on the brief).

PER CURIAM

Defendant L.M.W.1 appeals from a February 2, 2016 judgment of 

guardianship terminating her parental rights to her five-year-old 

son, J.R. The Division of Child Protection and Permanency 

(Division) and J.R.'s Law Guardian argue in support of the 

judgment. 

Defendant's brief raises the following points of argument:

POINT ONE

THE TRIAL COURT ERRED IN FINDING THAT DCPP HAD PROVED ALL 

FOUR PRONGS OF THE TERMINATION STATUTE BY CLEAR AND CONVINCING 

EVIDENCE.

(1) The trial court erred in ruling that DCPP proved prong 

one by clear and convincing evidence.

(2) The trial court erred in ruling that DCPP proved prong 

two by clear and convincing evidence.

(3) The trial court erred in ruling that DCPP proved prong 

three by clear and convincing evidence.

(a) The trial court erred in finding there were no 

alternatives to termination.

 

 

1 We use initials and pseudonyms to protect the family's privacy.
3 A-2850-15T4

(4) The trial court erred in ruling that DCPP proved prong 

four by clear and convincing evidence.

POINT TWO

THE TRIAL COURT ERRED IN TERMINATING L.M.W.'S PARENTAL RIGHTS 

AS ITS DECISION WAS BASED ON HEARSAY THAT WAS RULED 

INADMISSIBLE. 

POINT THREE

THE TRIAL COURT ERRED IN ADMITTING AND RELYING UPON OPINIONS 

BY MRS. DEVINE AND DR. CRAIG AS THEY WERE NOT QUALIFIED AS 

EXPERTS AND THEIR OPINIONS ON L.M.W.'S PARENTING CAPABILITIES 

WERE NOT RELIABLE (NOT RAISED BELOW).

POINT FOUR

L.M.W. WAS DENIED HER CONSTITUTIONAL RIGHT TO EFFECTIVE 

ASSISTANCE OF COUNSEL (RAISED PURSUANT TO R. 2:10-6).

 A. DCPP records, L.M.W.'s educational records, and witness 

testimony, not disclosed to the trial court, undermine 

confidence in the trial court's rulings on all four 

prongs of the best-interests test.

Following our review of the record, we reject these arguments and 

affirm.

I.

We begin with a summary of the standards that guide our 

review. Parents have a fundamental right to raise their children, 

and that right is constitutionally protected. N.J. Div. of Youth 

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

"[T]erminations should be granted sparingly and with great caution 

because they irretrievably impair imperative constitutionallyprotected liberty interests and scores of centuries of societal 
4 A-2850-15T4

family constructs." N.J. Div. of Youth & Family Servs. v. R.G., 

217 N.J. 527, 553 (2014). However, a parent's rights are not 

absolute. Ibid. "Because of its parens patriae responsibility, 

the State may terminate parental rights if the child is at risk 

of serious physical or emotional harm or when necessary to protect 

the child's best interests." Id. at 553-54. 

In order for the court to terminate parental rights, the 

State must satisfy the following prongs of the "best interests of 

the child" test with clear and convincing evidence:

(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 [or her] 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).]
5 A-2850-15T4

The four prongs "are not discrete and separate; they relate to and 

overlap with one another to provide a comprehensive standard that 

identifies a child's best interests," with parental fitness being 

the crucial issue. In re Guardianship of K.H.O., 161 N.J. 337, 

348 (1999). Determinations of parental fitness are very fact 

sensitive and require specific evidence. Ibid. Ultimately, "the 

purpose of termination is always to effectuate the best interests 

of the child, not the punishment of the parent." Id. at 350. 

On this appeal, our review of the trial judge's decision is 

limited. R.G., supra, 217 N.J. at 552. We are bound to accept

his or her factual findings, as long as they are "supported by 

adequate, substantial, and credible evidence." Ibid. 

Additionally, we accord her decision particular deference 

"[b]ecause of the family courts' special jurisdiction and 

expertise in family matters," and because the judge was uniquely 

in a position to evaluate the credibility of the witnesses. Cesare 

v. Cesare, 154 N.J. 394, 412-13 (1998). However, we review the 

trial court's legal interpretations de novo. R.G., supra, 217 

N.J. at 552-53. 

II.

We next summarize the relevant facts and procedural history 

from the record. A child of abusive parents, defendant suffers 

from serious cognitive impairments. In 2012, she gave birth to 
6 A-2850-15T4

J.R at the age of seventeen. The Division became involved when 

J.R. was only four months old, following a domestic violence 

incident between defendant and J.R.'s now-deceased father. 

On August 28, 2012, the Division filed a verified complaint 

and order to show cause for care and supervision of J.R. under 

Title Nine, N.J.S.A. 9:6-8.21 to -8.73. The court entered a 

consent order the same date granting the Division's application. 

On January 18, 2013, the Division filed an amended verified 

complaint for custody under Title Nine. The court granted the 

Division custody of J.R., finding his removal was required to 

avoid ongoing risk to his life, safety or health. In February 

2013, doctors diagnosed then one-year-old J.R. with failure to 

thrive, resulting in his placement with a non-relative resource 

family, where he remains today.

Over the next year, the Division provided defendant with 

various services in an effort to reunite defendant with J.R., 

without success. On January 21, 2014, the Division filed a 

complaint for guardianship of J.R.; however, on January 26, 2015, 

the trial judge dismissed the guardianship complaint and 

reinstated the Title Nine action in favor of reunification. 

After the court dismissed the guardianship action, concerns 

soon arose about defendant's ability to address J.R.'s complicated 

medical and emotional needs, following J.R.'s three-year-old well 
7 A-2850-15T4

visit with J.R.'s pediatrician, Dr. Krekamey Craig, on February 

12, 2015. In preparation for the visit, the case worker gave 

defendant, who had never met Dr. Craig, a list of questions to 

ask. 

Dr. Craig, who had been treating J.R. for approximately two 

years, was "sympathetic" to the fact that defendant had not been 

J.R.'s primary caretaker and thus tried to use the visit as an 

educational opportunity for defendant. Dr. Craig explained to 

defendant that J.R.'s most pressing medical condition was his 

reactive airway disease, for which he had been hospitalized and 

was under the care of a pulmonologist. Dr. Craig listed the 

medications that J.R. needed to take on a regular basis to avoid 

relapses, what warning signs to look for, and when these symptoms 

required emergency treatment. While defendant initially 

communicated she understood what she needed to do, upon further 

questioning by Dr. Craig, it became clear that she did not. 

As a result, Dr. Craig asked defendant to write down the 

information so they could review what she needed to do on a regular 

and emergency basis. While defendant complied, it was evident to 

Dr. Craig she did not understand. Dr. Craig told the caseworker

that she was worried that defendant was not capable of properly 

addressing J.R.'s complicated medical and emotional needs. The 

caseworker requested Dr. Craig to "write up" her concerns.
8 A-2850-15T4

On the following day, Dr. Craig, who explained she generally 

did not "write letters like this," wrote to the Division and 

reported that she "was disturbed" by the well visit and had 

concerns with defendant's ability to understand J.R.'s medical 

needs, particularly his asthma, a life-threatening condition. She 

also reported that defendant had not effectively interacted or 

disciplined J.R., who needed "continued monitoring" because of his 

developmental delays. 

Additional concerns arose on February 25, 2015, when 

defendant tested positive for marijuana use. Defendant admitted 

she had used marijuana about three times a month and had engaged 

in underage drinking. 

Further concerns regarding defendant's ability to protect 

J.R. arose during a February 2015 home visit, when a caseworker 

observed J.R. pick up a pocketknife and a lighter that defendant

had left on top of her dresser. That same month, defendant posted 

photos on social media, which revealed she had failed to transport

J.R. in a car seat, even though she received specific instructions

to do so.

Moreover, in a report dated March 4, 2015, Dr. Heidi Jacobsen, 

defendant's treating clinical psychologist, expressed "significant 

concern" about the reunification plan, noting that defendant had 

missed four of her five scheduled therapy appointments, had not 
9 A-2850-15T4

scheduled transportation with the Division's transportation 

provider as she had agreed to do, and had tested positive for 

marijuana use. Defendant had also admitted that "in the past she 

had hidden [T.C.]2 in [her] closet" when the caseworker came to 

her home. Based on this conduct, together with defendant's 

inability to understand J.R.'s medications and symptoms, Dr. 

Jacobsen recommended termination of defendant's unsupervised 

visits and that her contact with J.R. be "fully supervised" to 

ensure his safety. Based on these developments, the court issued 

an order on March 11, 2015, granting the Division's application 

to reinstate the guardianship complaint and to terminate 

defendant's unsupervised visitation. 

At the guardianship trial, which began on July 28, 2015, the 

Division presented testimony from Dr. Jacobsen, Dr. Mark Singer

(the Division's expert psychologist), and two caseworkers. In 

addition, the Law Guardian, who supported the Division's position,

presented the testimony of Dr. Leslie Trott, a licensed 

psychologist. At the conclusion of the Division's case, the trial 

judge sua sponte found the Division had not, at that point, "proved 

prong two [N.J.S.A. 30:4C-15.1(a)(2)] by clear and convincing 

 

2 Defendant started dating T.C. in June of 2014. Because he had 

an open child abuse case with the Division, the court previously 

entered an order that T.C. "is not to have any contact with 

[J.R.]." 
10 A-2850-15T4

evidence." The judge therefore suspended the guardianship trial 

and ordered further services and updated evaluations to determine 

whether defendant could progress to the point that "she can meet 

minimum standards of parenting." 

After these further efforts proved unsuccessful, the 

guardianship trial resumed on December 1, 2015, with the Division 

presenting further testimony from Dr. Singer and Dr. Jacobsen, and 

also defendant's former caseworker, who described photographs of 

J.R. and T.C. together that defendant posted on social media. The 

Division also called a social worker from J.R.'s school, who agreed

that J.R. needs constant, "one-on-one attention." Dr. Craig, 

defendant's current caseworker and one of J.R.'s therapists also 

testified. Defendant then testified on her own behalf, but did 

not present any other witnesses, expert or otherwise. 

After two full days of trial testimony, Judge James A. Farber

issued a comprehensive oral opinion finding that the Division 

proved by clear and convincing evidence each of the four prongs 

of the best interests standard, N.J.S.A. 30:4C-15.1(a), and 

entered a final judgment terminating defendant's parental rights 

to J.R.

With regard to prong one, the judge found that the Division 

demonstrated that J.R.'s safety had been and will continue to be 

endangered by the parental relationship with defendant. While the 
11 A-2850-15T4

judge did not attribute any malice to defendant, he found "[h]er 

inability to understand basic calls from a child for feeding[,] 

and the proper amounts" a child needs to eat, caused J.R.'s 

"medical issues." Specifically, he found the record "replete with 

information that [J.R.'s] failure to thrive and the domino 

consequences of the failure to thrive are directly related and 

attributable to [defendant]." The judge further found defendant 

caused harm because she failed to respond adequately to J.R.'s 

hearing impairment, which triggered his speech and cognitive 

delays. The judge concluded that J.R.'s health and development 

"were both severely impaired by [defendant's] own cognitive 

deficiencies[,] which prevented her from recognizing warning signs 

in various arena." 

The judge found that this harm will continue because defendant

does not understand J.R.'s medical condition and emotional needs, 

citing her inability "to decipher what medications should be 

administered in what doses and when." The judge referenced the 

findings of Dr. Singer and Dr. Trott describing defendant as 

"narcissistic and histrionic;" consequently, she would not place 

J.R.'s needs above her own and would overreact to issues impeding 

her "already-suspect judgment." While the judge found defendant

can handle "concrete tasks," she cannot "develop or implement an 

appropriate plan" to address unexpected issues. The judge further 
12 A-2850-15T4

explained, 

Again, this child is a special needs child who 

will have medical issues and educational 

issues to be addressed periodically and 

consistently. [Defendant] is quite simply 

unable to navigate those matters which . . . 

will endanger [J.R.'s] safety, health, and 

development. If a co-parent or some other 

adult is not there, will [J.R.] play with 

knives, lighters, or matches left accessible 

to him? What other everyday materials or 

substances which are poisonous and lethal when 

ingested will be left available to this child 

when [defendant's] back is turned?

 

With regard to prong two, the judge found defendant unable 

or unwilling to eliminate the harm facing J.R. and that delaying 

placement will add to the harm because J.R. needed permanency.

After three years of therapy, defendant had not corrected the 

issues that led to J.R.'s removal — she still could not adequately 

provide for J.R.'s medical and emotional needs. Instead, she 

"would be quickly overwhelmed" by full-time or part-time parenting 

"due to judgment deficits and her difficulty in addressing 

additional stressors." 

Regarding prong three, the judge found the Division had 

provided defendant with reasonable services to further the goal 

of reunification, including enhanced supervised visitation, 

transportation, therapy, parenting classes, referrals to 

residential programs, evaluations, employment and educational 
13 A-2850-15T4

training, and assistance with grocery shopping and basic child 

care skills. Additionally, the judge considered alternatives to 

termination of defendant's parental rights, but all proposed 

relatives had been ruled out. 

Finally, with regard to prong four, the judge found that 

termination of defendant's parental rights will not do more harm 

than good. The judge concluded J.R. lacks "a healthy relationship" 

with defendant, "who does not provide the nurturance and structure 

that [J.R.] demands." The judge further concluded that severing 

J.R.'s relationship with defendant "would not cause severe or 

enduring harm," but severing his relationship with the resource 

parent, who has become his psychological parent, would cause severe 

and enduring harm, which defendant "would not be able to mitigate."

As noted, we owe deference to Judge Farber's decision, unless 

it was not supported by sufficient credible evidence or was 

otherwise "so wide of the mark that a mistake must have been made." 

N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 279 

(2007) (citation omitted). Having reviewed the record in light 

of that standard, we find no basis to disturb the judgment on 

appeal. We affirm for the reasons stated by Judge Farber in his 

oral opinion issued on February 2, 2016, and for the reasons stated 

in this opinion. Defendant's appellate arguments are not supported 
14 A-2850-15T4

by the record and are without sufficient merit to warrant 

discussion beyond the following comments. R. 2:11-3(e)(1)(E). 

Of note, notwithstanding the Division's efforts to provide 

defendant with needed services, the experts at trial all agreed 

defendant remains incapable of safely parenting J.R., who has his 

own special medical and behavioral needs. The experts also agreed 

a close bond exists between J.R. and his resource parent, who 

wants to adopt, and severing that relationship would cause severe 

and enduring harm. 

Due to her own serious cognitive impairments, defendant is 

barely able to care for herself, much less care for a child with 

his own special needs. Defendant's inability to overcome her 

cognitive impairments resulted in her son's placement in foster 

care, where he remains today. The child has now bonded with his 

foster parent, and he would sustain severe harm if he were removed 

from her care. His need for a permanent, stable home is paramount, 

and termination of defendant's parental rights is in his best 

interests. 

Finally, we address defendant's argument, raised in her point 

IV, that she was denied the effective assistance of counsel, 

because her counsel: 1) failed to adequately review the Division's 

file; 2) failed to call an expert witness at trial; and 3) failed 

to advocate for services consistent with the guidelines set forth 
15 A-2850-15T4

by the United States Department of Health and Human Services (HHS) 

and the United States Department of Justice (DOJ) to assist state 

child welfare agencies in protecting the civil rights of parents 

with disabilities. Because the trial court did not consider this 

issue, since Rule 2:10-6 provides the issue of ineffective 

assistance of counsel "shall be raised in the direct appeal" of 

guardianship matters, we address defendant's claims of ineffective 

assistance in some detail. 

We initially note that defendants are entitled to the 

effective assistance of counsel in termination of parental rights 

proceedings. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J.

301, 305-07 (2007); N.J.S.A. 30:4C-15.4(a). In order to establish 

such a claim, a parent must prove the two-part test established 

in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 

2068, 80 L. Ed. 2d 674, 697 (1984), specifically: (1) counsel's 

performance was deficient, that is, it was outside the wide range 

of reasonable professional assistance; and (2) counsel's 

deficiency prejudiced the defense, that is, there is a reasonable 

probability that counsel's errors changed the result. B.R., supra, 

192 N.J. at 308-09.

Here, appellate counsel argues that trial counsel failed to 

inspect the Division's entire file since she found several 

documents that were not included as trial exhibits. This claim 
16 A-2850-15T4

lacks merit. From our review, even if trial counsel was deficient 

in failing to review those documents (as opposed to simply deciding 

not to use them), that deficiency would not have changed the result 

of this case, because either: 1) the facts contained in the 

documents were otherwise admitted into evidence through the 

testimony of Division witnesses, or 2) the facts were not relevant 

to a material issue.

Appellate counsel next contends that defendant's trial 

counsel failed to call Ally Wise, the director of Family Promise, 

who would have testified as to various shortcomings with the 

Division's educational services. Wise set forth in a certification 

that she "did not appreciate the extent of [defendant's]

disability" at the time of her admission because the Division had 

failed to disclose that defendant "has a learning disability or

special education needs." Wise claims she did not discover the 

"magnitude" of defendant's "learning deficits" until July 2013 

(two months after her admission), at which time she requested to 

have defendant attend an extensive private GED tutoring program 

at a cost of $10,000. The Division denied that request and instead 

arranged GED tutoring for defendant's cognitive impairments 

through a volunteer organization. Wise claimed that to the best 

of her knowledge, the Division "did not at any time recommend or 

suggest that [defendant] have services implemented that would 
17 A-2850-15T4

accommodate her learning disability." 

Here, even if trial counsel was deficient in failing to call

Wise, we discern no basis to conclude the outcome in this case 

would have changed. The Division provided defendant with 

reasonable educational services to help her obtain her GED and she 

ultimately obtained employment. The record contains no credible 

evidence to support the claim that additional services to 

accommodate defendant's learning disability would have had an 

effect on her cognitive disability and her related inability to 

adequately provide for J.R.'s serious medical and emotional needs 

— the focus in this case.

Appellate counsel also argues that trial counsel was 

deficient in deciding not to call Dr. Aventente Tamignini, 

defendant's expert psychologist; in failing to call a different 

expert with expertise working with cognitively disabled clients;

and in failing to object to Dr. Singer's testimony about the 

details of Dr. Tamignini's report. These claims all lack merit.

In an October 10, 2015 report, which was not admitted into 

evidence, Dr. Tamignini wrote that although defendant "evidenced 

the ability to respond affectionately toward[s her son]," she

"still demonstrates a lack of stability to provide her son with 

consistency and continuity. She lacks predictability, 

reliability, and judgment to guide and supervise her son." Dr. 
18 A-2850-15T4

Tamignini concluded, within a "reasonable degree of psychological 

certainty," that although defendant had "a willingness and great 

desire to parent her son," she was "not likely to be able to manage 

her son's daily challenges." He described J.R. as "an extremely 

active, young child who needs constant supervision and 

redirection." He found that defendant "was given opportunities 

to practice and master the skills of reasonable accepted parenting 

but was unable to be consistent and meet the challenges of 

parenting [J.R.]." He recommended that given the "strong bonding" 

between defendant and J.R., that a "program that allows [defendant] 

to keep in contact with [J.R.] is highly suggested." Of note, he 

did not recommend full custody for defendant.

On November 6, 2015, trial counsel sent a copy of Dr. 

Tamignini's report to Dr. Jacobsen, defendant's therapist, and 

represented that he intended "to use this report and Dr. Tamignini 

as a witness despite his conclusion. Not using the 

report/testimony would result in Judge Farber assuming that my 

expert had an even more negative finding." 

In an updated report dated November 25, 2015, Dr. Jacobsen 

did not discuss Dr. Tamignini's proposal for defendant to have 

continued contact with J.R.; instead, Dr. Jacobsen stated 

defendant was "insightful regarding the fact that if she were to 

regain custody of [J.R.] she would likely find it stressful and 
19 A-2850-15T4

overwhelming, she is consistent in stating that she would need 

supports in order to regain custody and parent him in the future." 

Dr. Jacobsen expressed concern that 

the level and duration of the support that 

[defendant] may need in order to develop the 

skills to balance her responsibilities for her 

home, work and parenting responsibilities, to 

develop a deeper understanding of [J.R.'s] day 

to day needs, and to increase her emotional 

resources and social supports may be much more 

extensive and long-term in duration than is 

possible or practical for social service 

agencies to provide. In addition, [defendant] 

has historically found it difficult to reach 

out to agencies supporting her when she finds 

herself overwhelmed, and she instead has 

become defensive about problems and has looked 

to unhealthy solutions to cope with her 

distress.

 

Meanwhile, defendant's trial counsel wrote the following 

cryptic message regarding a November 20, 2015 phone conversation 

he had with Dr. Tamignini: "Someone monitor her everyday. Not 

testify[.] Not submit report." On November 23, 2015, defendant's 

trial counsel confirmed he would not call Dr. Tamignini to testify.

When the guardianship trial resumed in December 2015, Dr.

Singer, who had completed an updated bonding and psychological 

evaluation, opined that despite receiving additional time and 

services, defendant was still not a viable parent for J.R. While 

Dr. Singer mentioned that he had reviewed Dr. Tamignini's 

psychological evaluation report, he did not make any further 
20 A-2850-15T4

reference to the report, nor did he disclose any of Dr. Tamignini's 

opinions. Dr. Singer did testify that he agreed with Dr. 

Jacobsen's conclusions as set forth in her updated report above.

We conclude the decision not to call Dr. Tamignini as a 

witness was not deficient because, as counsel's note confirmed,

it was not helpful to defendant's case. At best, Dr. Tamignini 

appears to have recommended some sort of open adoption by the 

resource parent.

We further conclude defendant was not deprived of the 

effective assistance of counsel "through the improper use" of Dr. 

Tamignini's report. State v. Spencer, 319 N.J. Super. 284 (App. 

Div. 1999), as cited by defendant, is distinguishable. In Spencer, 

we held that the State's improper cross examination of a defense 

expert about the opinion of a prior defense expert who did not 

testify at trial and whose opinion was consistent with the State's 

expert, "had the clear capacity to unfairly tip the scales in 

favor of the State, particularly in light of the prosecutor's 

summation[.]" Id. at 300. Unlike Spencer, here a judge, not a 

jury, decided the matter under review. Dr. Singer also did not 

testify as to the contents of Dr. Tamignini's report, nor did the 

judge refer to the report in his opinion. The judge's brief 

mention of the report did not change the outcome of this case. 

Appellate counsel further argues that trial counsel should 
21 A-2850-15T4

have retained a different expert with experience treating 

cognitively limited individuals. In support of this argument,

counsel provided a report from Dr. Jeffrey B. Allen, a 

psychologist. Counsel contends that Dr. Allen would have testified 

that defendant had the capacity to independently parent J.R. 

However, Dr. Allen found that in order to do so, defendant would 

need services the Division had already provided to no avail, 

including instruction in a practical hands-on manner, tutoring 

with written instructions, and parenting skills training. Thus 

any deficiency would not have changed the outcome of this case.

Lastly, appellate counsel argues that defendant's trial 

counsel was deficient in failing to advocate for services to 

accommodate defendant's cognitive disability consistent with the 

guidelines set forth by HHS and DOJ.

3 We disagree.

We have explicitly rejected the argument that the Americans 

 

3 In August 2015 (during the first part of the guardianship trial), 

HHS and DOJ issued joint technical assistance to guide state and 

local welfare agencies and courts "to ensure that the welfare of 

children and families is protected in a manner that also protects 

the civil rights of parent[.]" United States Department of Health 

and Human Services, Office for Civil Rights Administration for 

Children and Families, and United States Department of Justice 

Civil Rights Division Disability Rights Section, Protecting the 

Rights of Parents and Prospective Parents with Disabilities: 

Technical Assistance for State and Local Child Welfare Agencies 

and Courts under Title II of the Americans with Disabilities Act 

and Section 504 of the Rehabilitation Act 1,1 (Aug. 2015)

https://www.hhs.gov/sites/default/files/disability.pdf. 
22 A-2850-15T4

with Disabilities Act (ADA), 42 U.S.C.A., §§ 12101 to -12213 (2000)

provides a defense to the termination of a parent's rights. N.J.

Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442 

(App. Div. 2001), certif. denied, 171 N.J. 44 (2002). In A.G. we

rejected a parent's argument that the failure to reasonably 

accommodate a parent's mental disability amounted to 

discrimination under the ADA, reasoning that "to allow the 

provisions of the ADA to constitute a defense to a termination 

proceeding would improperly elevate the rights of the parent above 

those of the child. . . . The fact that A.G. suffers from a mental 

disorder should not distract us from determining the best interests 

of the child." Ibid. 

In any event, even if deficient, the failure to direct the 

trial court's attention to this document did not change the outcome 

of this case. The record contains ample evidence the Division 

provided defendant with services that were directly geared toward 

her cognitive limitations, including extensive individual therapy 

and instructions on life skills with Dr. Jacobsen, supervised 

visitation, parenting classes, and assistance in basic parenting 

skills by the Division caseworkers. Defendant's claim she received 

ineffective assistance of counsel lacks substantive merit.

Affirmed.
23 A-2850-15T4