RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2963-20

NEW JERSEY DIVISION OF 

CHILD PROTECTION AND 

PERMANENCY,

Plaintiff-Respondent,

v.

D.G.,

Defendant-Appellant,

and 

P.G.,

Defendant.

___________________________

IN THE MATTER OF THE 

GUARDIANSHIP OF E.G. and 

B.G., minors.

___________________________

Submitted September 19, 2022 — Decided September 28, 2022

Before Judges Mawla, Smith and Marczyk.

NOT FOR PUBLICATION WITHOUT THE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.
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A-2963-20

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Gloucester County, 

Docket No. FG-08-0034-20.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Robert W. Ratish, Designated Counsel, on 

the briefs).

Matthew J. Platkin, Acting Attorney General, attorney

for respondent (Donna Arons, Assistant Attorney 

General, of counsel; Nicholas Dolinsky, Deputy 

Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for minors (Meredith Alexis Pollock, Deputy 

Public Defender, of counsel; David B. Valentin, 

Assistant Deputy Public Defender, of counsel and on 

the brief).

PER CURIAM

Defendant D.G. appeals from a May 5, 2021 judgment terminating her 

parental rights to E.G. and B.G., and granting the Division of Child Protection 

and Permanency (Division) a judgment of guardianship.1 We affirm.

D.G. has a history of substance abuse, including heroin, a lack of 

housing, and unemployment. The Division received its first referral involving 

this family in December 2016, when the maternal grandparents called with 

1 The court also granted a judgment against P.G., the children's father. The 

Division's last contact with him was August 2019. Thereafter, he could not be 

located and did not participate in the trial or this appeal.
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concerns D.G. was trying to take her children from them while under the 

influence of drugs. The second referral occurred in November 2018, when the

grandparents informed the Division D.G. was using heroin and would not be 

allowed back into their home or remove the children from their home. 

On December 10, 2018, a urine screen showed D.G. was positive for 

fentanyl, amphetamines, benzodiazepines, and Suboxone. The following day, 

the Division attempted to implement a safety protection plan with D.G. and her 

parents, but after another argument between them. D.G. was asked to leave 

because her parents did not feel safe in her presence. The Division executed 

an emergency removal on December 12, 2018, placing the children in the care 

of the maternal grandparents. The children have remained in their 

grandparents' care since then.

In February 2020, the trial court terminated the abuse and neglect case 

and the matter proceeded into a guardianship. At a January 2021 permanency 

hearing, the court approved the Division's plan of termination of parental 

rights followed by adoption by the maternal grandparents. The matter was 

tried over Zoom during two non-consecutive days in April 2021. None of the 

parties objected to the virtual format.
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The Division presented testimony from its caseworker and a forensic 

psychologist, both of whom the trial judge found credible. Although the 

caseworker served D.G. with the trial notice and explained the differences 

between a virtual and in-person trial to D.G., who did not object, D.G. did not 

attend the first day of trial and part of the second day. She was represented by 

counsel but did not call any witnesses. The law guardian also called no 

witnesses. 

The caseworker testified D.G. failed to stay in contact with the Division 

and update the Division regarding her whereabouts and employment status. 

D.G. told the caseworker she lacked housing, sometimes lived with a friend, 

moved from couch-to-couch, and never provided the Division with a 

permanent address. Further, D.G. was non-compliant with her substance abuse 

evaluation, never completed substance abuse treatment, and sporadically 

visited the children. D.G.'s last visit occurred in September 2020,

approximately seven months before the trial. 

The caseworker testified the children wished to be adopted. She 

explained the grandparents wanted to attempt kinship legal guardianship 

(KLG) for one year and then move to adoption if circumstances did not 
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change. However, after a failed mediation in August 2020, the grandparents 

changed their position, choosing adoption over KLG.

The expert testified he conducted a psychological evaluation of D.G., a 

bonding evaluation of the children and D.G., and a separate bonding 

evaluation with the maternal grandparents. He explained D.G. had 

longstanding substance abuse, unemployment, and criminality problems noting 

she had arrests for driving while intoxicated and drug possession. D.G. failed 

to accurately report her history of substance abuse and would not share her 

arrest history with the expert. The psychological tests administered revealed a 

history of trauma, depression, and post-traumatic stress, posing a risk to D.G.'s 

ability to safely care for the children. The expert opined D.G.'s progress and 

prognosis for parenting the children "was poor, maybe less[,]" and she would 

not be able to care for the children at present, or in the foreseeable future. 

Even if D.G. were compliant with services, the expert opined it would take her 

considerable time to complete them to be able to care for the children. 

The expert explained the children had a strong bond with D.G. and the 

maternal grandparents. However, because of D.G.'s inconsistent involvement

in the children's lives and the numerous separations resulting from her 

substance abuse, the children would be at risk of long-term harm if they 
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remained with D.G. Furthermore, the children would suffer slight risk of harm 

if their relationship with D.G. were severed. However, they would suffer a 

high risk of long-term emotional harm and disruption if cut off from the 

maternal grandparents because they have been the source of stability in the 

children's lives. D.G. would not be able to mitigate the harm. The 

grandparents had a history of ameliorating the harm caused by the loss of their 

relationship with D.G. and would continue to do so into the future. The expert 

opined adoption was the better permanency plan than KLG. He explained 

D.G.'s historic cycle of progress followed by setbacks, and D.G. repeatedly 

assuring the children the family would reunify, damaged the children by 

confusing them and giving false hopes. 

The trial judge concluded the Division met all four prongs of the 

statutory best interests test, N.J.S.A. 30:4C-15.1(a), by clear and convincing 

evidence. He found D.G.'s "actions or inactions . . . in failing to provide her 

parental attachment to the children by continuing to be in need of substance 

abuse treatment, lack of proper housing, off and on visitation over a period of 

more than two years, and overall the quality of that relationship" harmed the 

children. Citing the Division's expert testimony, the judge found D.G. "either 

unwilling or unable to overcome the addiction issues that she continues to 
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face, and . . . the . . . maternal grandparents[] have provided a stable home and 

that removing them from that . . . home would cause more serious and 

enduring emotional and psychological harm to the children." Citing the case 

worker's testimony and reviewing the Division's contact sheets, the judge 

found the Division offered reasonable services aimed at reunification, but D.G. 

"failed to take advantage of those services and [was] . . . unable or unwilling to 

do so throughout the course of this litigation." The judge concluded the 

Division proved the fourth best interests prong because the psychological and 

bonding evaluations showed a termination of parental rights would not do 

more harm than good.

D.G. appealed from the guardianship judgment. She moved for 

summary disposition, or alternatively a remand, for further fact finding 

because the trial judge made no findings under the third best interests prong 

regarding whether the Division considered alternatives to a termination of 

parental rights. The law guardian also moved for a limited remand and the 

Division did not oppose the law guardian's motion. We denied D.G.'s motion 

for summary disposition without prejudice because we granted the law 

guardian's motion for the limited remand.
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On remand, the law guardian called the maternal grandparents to testify 

regarding their reasons for seeking adoption over KLG. The trial judge found 

them both "to be very credible witnesses[.]" The maternal grandfather 

explained he and the grandmother wanted to proceed with KLG, but ultimately 

preferred adoption because they felt D.G. needed more time to rehabilitate, and

she continued to relapse. The grandfather also explained he did not want KLG 

because he did not want to risk giving up the children in the event the court 

granted a motion to vacate it. The judge noted he "held to his position" 

notwithstanding the cross-examination. 

The maternal grandmother echoed the grandfather's testimony and 

explained an adoption would give the children a normal life. Her position on 

adoption was also unequivocal. She had numerous conversations about KLG 

and attended classes with the grandfather to understand the differences 

between KLG and adoption. The judge found "clearly she wants adoption." 

The judge concluded the Division proved it explored alternatives to the 

termination of parental rights. The grandparents' view on adoption was "more 

than a preference. It is exactly what they want and what they asked [the c]ourt 

to [order.]" 
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I.

On appeal, D.G. challenges the trial judge's findings on all four of the 

statutory best interests prongs. She argues the first prong was not proved 

because she had positive interactions with the children during her visits and 

was in the process of recovery. Similarly, the second prong was not met 

because she was determined to overcome her substance abuse problems and 

sought out services. She claims the Division did not meet its burden under the 

third prong because the evidence showed the grandparents considered KLG a 

viable option, the Division's expert also favored it, and recent legislative 

amendments have made KLG preferred over adoption. D.G. contends the 

fourth prong was not proved because the bonding evaluation showed the 

children were bonded with her. She argues she was denied due process 

because her internet connection failed during trial and the court continued 

without her.

Appellate review in termination of parental rights cases is limited. N.J.

Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014). We defer to 

the factual findings underlying the trial court's decision if they are supported 

by "'adequate, substantial and credible evidence' on the record." N.J. Div. of 

Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re 
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Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). "We accord 

deference to factfindings of the family court because it has the 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." N.J. Div. of 

Youth & Fam. Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing Cesare v.

Cesare, 154 N.J. 394, 413 (1998)). "Reversal is warranted only when a trial 

court's findings are 'so wide of the mark that a mistake must have been 

made[.]'" N.J. Div. of Youth & Fam. Servs. v. L.J.D., 428 N.J. Super. 451, 

476 (App. Div. 2012) (quoting M.M., 189 N.J. at 279).

II.

The statutory best interests test requires the Division to prove the 

following four prongs by 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;

(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
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(4) Termination of parental rights will not do more 

harm than good.

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

"The four criteria enumerated in the best interests standard 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." In re 

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

A.

We reject the arguments raised by D.G. related to prongs one and two of 

the best interests analysis. The evidence in the record overwhelmingly shows 

D.G.'s unaddressed substance abuse was the driving force for her inability to 

provide the children with housing and a safe environment, and she endangered 

the children. Furthermore, despite years of services, D.G. continued to test 

positive for drugs and was unable to successfully complete the substance abuse 

treatment services to enable reunification with the children. Her assertion she 

complied with services and enjoyed positive visits with the children is belied 

by a record of missed visits, sometimes for months at a time. Given the poor 

track record and prognosis for success, the clear and convincing evidence 

shows D.G. was either unwilling or unable to ameliorate the harm she caused 

the children. 
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B.

We are unpersuaded by D.G.'s prong three arguments whether viewed 

through the lens of the facts adduced at trial or the recent statutory 

amendments. We address these arguments in turn. 

Effective July 2, 2021, the Legislature amended the Kinship Legal 

Guardianship Act to state: "Kinship care is the preferred resource for children 

who must be removed from their birth parents because use of kinship care 

maintains children's connections with their families." S. 3814 (2021). Setting 

aside whether the Legislature intended this provision to apply retroactively, we 

are unconvinced the evidence in the record supports a narrative the Division, 

its expert, or the maternal grandparents did not seriously consider KLG. The 

evidence shows the grandparents favored KLG until it was clear D.G. was 

unable to rehabilitate. Moreover, the grandparents explained their rationale 

during the remand proceedings, not only giving the trial judge insight to their 

deliberations but convincing the judge they were properly informed about the 

differences between KLG and adoption. The expert's testimony also 

confirmed the window for KLG had closed. Therefore, regardless of 

preference for KLG, it simply was not an option here. 
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C.

Prong four of the best interests test, N.J.S.A. 30:4C-15.1(a)(4), "'serves 

as a fail-safe against termination even where the remaining standards have 

been met.'" N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 108 (2008) 

(quoting N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 609 (2007)).

"The question ultimately is not whether a biological mother or father is a 

worthy parent, but whether a child's interest will best be served by completely 

terminating the child's relationship with that parent." Ibid. "'Our courts have 

recognized that a child's relationship with a parent is of such significance that 

doubts are to be resolved against its destruction.'" N.J. Div. of Youth & Fam.

Servs. v. F.M., 375 N.J. Super. 235, 264 (App. Div. 2005) (quoting In Re 

Guardianship of J.E.D., 217 N.J. Super. 1, 15-16 (App. Div. 1987)).

Pursuant to these principles, we conclude the trial judge did not err in 

finding adoption would not do more harm than good. Indeed, the unrebutted 

expert testimony clearly and convincingly established the children's bonds 

with the grandparents could not be severed because doing so would cause the 

children harm that could not be ameliorated, whereas the bond with D.G. could 

be severed and the resulting harms salved. 
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III.

D.G. argues her due process rights were violated when she lost 

connectivity during the trial because the expert testified regarding hearsay 

evidence, namely, statements D.G. allegedly made regarding how long she was 

drug-free and statements to the grandparents regarding her housing, which 

were relayed to the caseworker. She argues she was deprived of the right to 

confront these witnesses. We are unconvinced there was a due process 

violation warranting a reversal here. 

At the outset, we note D.G. did not attend the first day of trial. The 

second day of trial occurred ten days later on April 26, 2021. The transcript 

shows following the expert's direct testimony, the court took an approximately 

fourteen-minute break. When trial resumed, the judge noted 

we have lost contact with [D.G.]. . . . 

We continued to try to reach her through our 

monitor to reconnect her to Zoom. We have also 

asked . . . the . . . caseworker[] if she could reach out

to her. She has indicated that she has called the 

number, but the number went to busy, then voicemail, 

and that voicemail was full so we could not leave any 

voicemail. [The caseworker] has also attempted to 

text [D.G.]. 
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The transcript notes trial continued for approximately one more hour with 

cross-examination of the expert and then the caseworker was briefly recalled 

to the stand. 

Where a party fails "to object to an error or omission at trial, we review 

for plain error" and "disregard any alleged error 'unless it is of such a nature as 

to have been clearly capable of producing an unjust result.'" State v. 

Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2). "Due process requires 

adequate notice and a fair opportunity to be heard." Div. of Youth & Fam.

Servs. v. M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div. 2003). "An action for 

termination of parental rights is a civil action. The requirements of due 

process do not confer a constitutional right of confrontation or mandate a 

parent's presence at the trial." Id. at 467. 

Pursuant to these principles, we are satisfied there was no due process 

violation. D.G.'s counsel never objected to continuing without her, and D.G.'s 

presence was not required for her counsel to have objected to the alleged 

hearsay. D.G. does not explain what efforts she made to reconnect to the 

proceedings or contact the caseworker or her counsel the day of the trial. 

Moreover, after filing this appeal, D.G. moved for summary disposition and 

reversal of the guardianship judgment, yet never raised the due process issue. 
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Finally, as for the allegedly objectionable statements themselves, the 

expert testified D.G. told him housing was the only issue standing in the way 

of reunification with the children and that she was drug free since May 2019. 

The statement made to the caseworker was that the grandparents told the 

caseworker they paid to fix a window on D.G.'s car because she reported that 

she was sleeping in her car. 

We are unconvinced these statements were clearly capable of producing 

an unjust result. D.G.'s housing, substance abuse issues, and her lack of 

reliability as a reporter of her rehabilitation progress went far beyond these

alleged statements. The record does not show the expert's assessment of D.G. 

turned on D.G.'s statement regarding her status in May 2019, let alone that the 

judge relied on it. The evidence of D.G.'s housing instability exceeded the 

limited testimony by the caseworker regarding the grandparents' repair of 

D.G.'s car window. And, in the absence of an objection, the statements were 

admissible under N.J.R.E. 803(b)(1) and N.J.R.E. 803(c)(25).

Affirmed.