### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

- 4577

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A

- 4578

- 18T2 NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff

- Respondent,

v . M.M. and V.B., Defendants

- Appellants,
and E.N., Defendant.

__________________________ IN THE MATTER OF THE GUARDIANSHIP OF K.M.N., Z.B. , Za.B., L.B., Zar.B., and Z.U.B., Minors.

__________________________

Submitted February 4, 2020

– Decided March 3, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

- 3.2 A

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- 18T2 Before Judges Yannotti, Hoffman and Currier. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hud son County, Docket No. FG

- 09

- 0206

- 18.
Jo seph E. Krakora, Public Defender, attorney for appellant M.M. (Robyn A. Veasey, Deputy Public Defender, of counsel; Andrew R obert Burroughs, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant V.B . (Robyn A. Veasey, Deputy Public Defender, of counsel; James D a niel O'Kelly, Designated Counsel, on the briefs). Gurbir S. Grewal, Attorney General, attorney for respondent ( Melissa H. Raksa, Assistant Attorney General, of couns el; Sara M. Gregory, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian , at torney for minors (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
PER CURIAM This Title 30 guardianship matter brought by the Division of Child Protection and Permanency (the Division) returns to our court following a limited remand we ordered in a published opinion issued on April 2, 201 9

. See N.J. Div. of Child Prot. & Permanency v. M.M

. , 45 9 N.J. Super. 2 46 (App. Div.
201 9 ). In our opinion, we held the record contained sufficient evidence to support the trial court's findings that the Division met its burden on the first two3 A

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prongs of the ter mination statute , N.J.S.A. 30:4c

- 15.1(a); however, we remanded the case with resp ect to prongs three and four of the statute , finding
the record " insufficiently clear " concerning the issues of adopt ion and the potential alternative of Kinship Legal Guardia nship (KLG). Id. at 257. On remand, the same judge who presided over the guardia nship trial heard testimony from the two long

- term caretakers 1 for the six children involved in this case. After both caretakers provided testimony confirming their intention to adopt the children in their respective care, notwithstanding the ir understand ing of the availability of KLG, the judge reaffirmed her original determination to terminate parental rights . D efendant s M.M. (t he mother) and
V.B. (the father) now appeal from that second judgment of guardianship . We affirm.
I

. The Facts
We begin with a summary of the pertinent facts , which we presented in greater detail in our published opinion. Id. at 25 2

- 5 5

. The mother is the

1 The caretakers

– the children's maternal grandmother and maternal great aunt

– did not testify at the initial guardianship trial.4 A

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biological mother of seven children: X.M. (Xander), 2 born in 2008; K.M. N. (Kevin), 3 born in 2009; Z.B. (Zarah), born in 2011; Za.B. (Zena), born in 2013; L.B. (Larry) , born in 2015; Zar.B. (Zadie), born in 2016; and Z.U.B. (Zelda), born in 2017. The mother and the father are married to each other. He is the father of
the mo ther's youngest five children ( Zarah, Zena, Larry, Zadie, and Zelda )

. As of the time of the guardianship trial in 2018, the Division had been involved with the mother and her children for about eight years, and with the father for approximately six years. The Division initially removed Xander and Kevin from
the mother's car e in February 2010 , after receiving reports that she left Kevin on his paternal relatives' porch unattended. Those two sons were temporarily returned to the mother's custody in October 2015. Meanwhile, Zarah, Zena, and Larry were born, and defendants mar ried.

2 D.B. is the father of Xander ; in January 2017, the court placed Xander in his father 's custody.

3 Defendant E.N. is the father of Kevin ; at the conclusion of the initial guardianship trial , t he judge terminated E.N.'s parental rights as to Kevin. E.N. did not attend the trial nor did he appeal from the decision to terminate his parenta l rights.5 A

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In July 2016, the Division removed all of the children from defendants'

care , after the mother tested positive for marijuana upon Zadie's birth, and caseworker interviews of the c hildren raised concerns of physical abuse. The Division placed Kevin and Larry with the ir maternal grandmother , and placed Zarah, Zena, and Zadie with the ir maternal great aunt. I n September 2017 , t he Division filed its guardianship complaint in this mat ter . That same month , the mother gave birth to Zelda, who t he Division removed from defendants' care , plac ing her with her maternal grandmother and adding her to the guardianship proceedings in an amended complaint.
A t the initial four

- day trial , the Divi sion presented substantial evidence

r eflect ing defendants ' si gnificant struggle s, which included their repeated marijuana use, unemployment, lack of stable ho using , and inadequate supervis ion of the ir children, including an incident where Larry sustained

s econd

- degree burns from a r adiator. The trial judge noted the close bonds between the caretakers and the
children in their respective homes and found they both want to adopt the children in their care. The judge found the termination of the parents' right s to enable such adoption was in the children' s best interests.6 A

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In our previous opinion, we affirmed the trial judge' s decision regarding the first two prongs of the statute, N.J.S.A. 30:4C

- 15.1(a). Id. at 257. Regarding prongs three and four, we found the record deficient, and explained that " the factual record, which is based upon a series of somewhat inconsistent and conditional hearsay statements, is insufficiently clear with respect to issues concerning adopting and the potential alternatives of KLG ." Ibid

. Specific to prong three, we fo und the record supported the trial judge's findings that the Division made "reasonable efforts" to provide services to both parents; however, w e found the record inadequate as to the second clause of
N.J.S.A. 30:4C

- 1 5.1(a) (3), that "the court has considere d alternatives to termination of parental rights. " Id. at 258. W e acknowledged the caregiver s should not function as the ultimate decision maker to the child's fate, but emphasized their preference was not categori cally irrelevant. Id. at 263

- 64. W e

co ncluded their decision must be an informed decision and the trial record must contain evidence of "sufficient clarity and evidentiary reliability " of their
intentions

. Id. at 2 65.
I nterpreting the Kinship Legal Guar dianship Notification Act (the KLG
Not ification Act), 4 w e held "the caregiver must be fully informed of the potential

4 N.J.S.A. 30:4C

- 89 to

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benefits and burdens of KLG before deciding whether he or she wished to adopt. Once he or she is provided with that comparative informati on, the caretaker's preference between the two alternatives sh ould matter." Id. at 262

- 63. W e
construe d " the KLG statute and the Notification Act to make a caregiver's preference, if any, of KLG over adoption a relevant but not dispositive consideration. The caregiver's consent to adopt should be not only informed , but also unconditional, unambiguous, and unqualified." Id. at 264. As a result,

we remanded the case for the trial court to :

(1) [D] evelop the trial record with more clarity as to whether ea ch resource parent unequivocally, unambiguously, and unconditi onally wishes to adopt the children in her care, regardless of the potential alternative of [KLG] ; and (2) obtain explicit findings by the trial court addressing KLG as it relates to the feasibi lity of adoption and the unequivocal consent of the resource p arents to adoption. [ Id. at 252.] In all other respect s , w e upheld the trial judge's decision

. Ibid . Additionally,

w e deferred " to the trial judge's discretion as to what forms of proof would be appropriate for the remand hearing. " Id. at 2 7 5. The Remand Proceedings On May 23, 2019, the trial j udge held the remand hearing. The Division presented testimony from the children's caretakers, who both confirmed their8 A

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awareness of KLG and their con tinued desire to adopt the respective children in their c are. When asked about her intentions regarding Larry, Kevin and Zelda , t he maternal grandmother replied that she want s " to adopt them . . . I'm very sure. I'm solid on it. " She said Division worke rs explained the differences between KLG and adoption to her and she had understood the difference "for a long time." She stated she is "very sure" she want s to adopt the children , rather than KLG. She understood she was free to refuse to a dopt the child ren and recognized the Division would not remove the children under a KLG, unless it
was to return them to their parents. After adoption, s he has no intention of chang ing the children's names and expects to allow the children to have continu e d contact wit h their parents

. When asked about her intentions regarding Zarah, Zena, and Zadie , the maternal gr eat aunt replied, "I'm committed to adopting them." She stated she unders tan d s the difference s between adoption and KLG and gave the matter consideration. S he denied the claim that she previously said she preferred KLG over adoption. She confirm ed she spoke with a Division caseworker and her lawyer in the previous month regarding the differences between KLG and adoption and sai d she previously spoke to casew orkers numerous times9 A

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regarding KLG. She did not feel pressured to adopt and intends to permit defendants to visit the children. On June 4, 2019, the trial judge issued a written opinion te rminating the parental rights of both parents . The judge held th e Division proved prongs three and four of N.J.S.A. 30:4C

- 15.1(a) by clear and convincing evidence. Under
prong three , the judge emphasized the Division's efforts to work with both the mother and the father for years and yet they failed to maintain approp riate housing for their children. Additi onally, the judge cite d the opinion of Dr. Karen Wells that it is unlikely in the foreseeable future that the mother or the father would be equipped , either emotionally or psychologically , to safely care for their

c hildren.
A ddressing the second clause of prong three

– the alternatives to termination of parental rights

– the judg e found:

Both foster parents testified at a remand hearing as to their wishes considering adoption versus KLG. Their testimony was credible and it confirmed that each had discussed the differences between KLG and adoption on many occasions with the Divisi on and each foster parent understood those differences. It was evident that [the maternal great aunt] made an informed and thoughtful decis ion. She wanted closure for all parties. She was tired of the roller coaster and feared that with KLG she would be brought back and forth into Court by the parents and this would not be good for the children. Significantly, she was concerned that under10 A

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. Under the fourth prong, the judge found the Division met its burden of proving by clear and convincing evidence that termination of defendants' parental rights , as opposed to KLG , was in the best interest of the children , "who have languish ed in the foster care system for years." The judge explained,

The expert testimony of Dr. Wells clearly est ablished that any harm to the children . . . can be mitigated through therapeutic services and their foster parent. Otherwise she testified that no ne of the . . . children will suffer any harm from termination of their parents' parental rights. Both fost er parents testified that they will continue to foster a relationship with the parents.11 A

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On June 25, 2019, both M.M. and V.B. filed this appeal , cha llenging the trial court's decision to terminate their parental rights

. II. Our scope of review on appeal from an order terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L. , 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H. , 172 N.J. 440, 472 (2002)). We will uphold a trial judge's factfind in g s if they are "supported by adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G. , 217 N.J. 527, 552 (2014) (citing N.J. Div. of Youth & Family Servs. v. E.P. , 196 N.J. 88, 104 (2008)). No deference is given to the court's "interpretation of the law" which is reviewed de novo. D.W. v. R.W. , 212 N.J. 232, 245

- 46 (2012) (citing N.J. Div. of Youth & Family Servs. v. I.S. , 202 N.J. 145, 183 ( 2010)).
We accord "de ference 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 & Family Servs . v. F.M. , 211 N.J. 420, 448 (2014) (citing
Cesare v. Cesare , 154 N.J. 394, 413 (1998)). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own fin dings to ensure that there is not a denial of12 A

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justice." E.P. , 196 N.J. at 104 (quoting G.L. , 191 N.J. at 605). We also accord deference to the judge's credibility determinations "based upon his or her opportunity to see and hear the witnesses." N.J. Div . of Youth & Family S ervs. v. R.L. , 388 N.J. Super. 81, 88 (App. Div. 2006) (citing Cesare , 154 N.J. at 411

- 13). When terminating parental rights, the court focuses on the "best interests of the child standard" and may grant a petition when the four prongs set forth in
N.J.S.A . 30:4C

- 15.1(a) are established by clear and convincing evidence. In re Guardianship of K.H.O., 161 N.J. 337, 347

- 48 (1999). "The four criteria enumerated in the best interests standard are not discrete and separate; they relate to a nd overlap with one a nother to provide a comprehensive standard that identifies a child's best interests." Id. at 348.
N.J.S.A. 30:4C

- 15.1(a) requires the Division to prove: (1) The child's safety, health, or development has been or will continue to be en dangered by the paren tal 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 h arm may include evide nce that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;13 A

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- interes ts

- of

- the

- child stand ard, in addition to evaluating the efforts of the Division in providing services to the parents, requires that the court consider alternatives to the termination of parental rights.
See N.J.S.A. 30:4C

- 15.1(a)(3). Under prong three, a n alternative to term ination is KLG, which allows a relative to become the legal guardian, committed to care for the child until adulthood, without stripping parental rights. N.J. Div. of Youth & Family Servs. v. P.P. , 180 N.J. 494, 508 (2004). KLG resul ted from the Legislat ure's realization "that an increasing number of children who cannot safely reside with their parents are in the care of a relative or family friend who does not wish to adopt the child or children." N.J. Div. of Youth & Family
Servs. v. L.L. , 201 N.J. 210 , 222

- 23 (2010). See N.J.S.A. 3B:12A

- 1(a) to (b).
In P.P. , our Supreme Court, while acknowledging the benefits of KLG, emphasized "New Jersey's strong public policy in favor of permanency." 180 N.J. at 510 (quoting In re Guardianship of K.H.O. , 161 N.J. 337, 357 (1999)).14 A

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The Court explained that KLG is available "as a more permanent option than foster care when adoption 'is neither feasible nor likely' and '[KLG] is in the child's best interests.'" Id. at 512 (quoting N.J.S.A. 3B:12 A

- 6(d)(3) to (4)). B ut when the permanency provided by adoption is available, KLG cannot be used as a defense to termination of parental rights. N.J. Div. of Youth and Family Servs.
v. D.H. , 398 N.J. Super. 333, 341 (App. Div. 2008) (holding that KLG is not available when ad option is feasible or likely). Indeed, this court has recognized that when a caretaker "unequivocally" asserts a desire to adopt, the standard to impose a KLG arrangement that adoption is neither feasible nor likely, cannot
be satisfi ed. N.J. Div. of You th & Family Servs. v. T.I. , 423 N.J. Super. 127, 130 (App. Div. 2011). As we have already held in this case , " The decision of a resource parent to choose adoption over KLG must be an informed one ." M.M. , 459 N.J. Super.
at 260. " The L egislature has made it clear that relative caretakers who might be candidates for KLG must be adequately informed of the nature of such arrangements and the financial and other services for which they may be eligible. " Id. at 261. To accomplish this obje c tive, the Legislature enacted the KLG Notification Act, N.J.S.A. 30:4C

- 89 to

- 92, in 2005. The Legislature enacted15 A

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the KLG Notification Act "to ensure that individuals who may be eligible to become kinship legal guardians are aware of the eligibility req u irements for, and the responsibilities of, kinship legal guardianship and . . . [also] the services available to kinship legal guardians in the State." N.J.S.A. 30:4C

- 90(e). To accomplish this goal, the Division shall, in easily understandable language:

a . inform individuals, of whom the department is aware, who may be eligible to become kinship legal guardians of: (1) the eligibility requirements for, and the responsibilities of, kinship legal guardianship; and (2) the full

- range of services for which kinship legal guardians may be eligible and the eligibility requirements for those services; and b. inform current kinship legal guardians of the full

range of services for which kinship legal guardians may be eligible and the eligibility requirements for those services. [N.J.S.A. 30:4C

- 91.]
As we previously explained in this case,

A logical implication of the Notification Act is that the caregiver must be fully informed of the potential benefits and burdens of KLG before deciding whethe r he or she wish es to adopt. Once he or she is provided with that comparative information, the caretaker's preference between the two alternatives should matter. . . . The caregiver's consent to adopt should be16 A

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- 18T2 not only informed, but also unconditional, u nambiguous, and unqualified. [ M.M. , 459 N.J. Super. at 263

- 64.] On this appeal, following our remand, the mother an d the father both argue the record does not support the trial judge's finding that the decisions of the resource parent s to adopt the children in their ca re were " informed " decisions

. We disagree. At the remand hearing, both resource parents testified for the first time. The maternal grandmother explained she does not like KLG because if something had happened to her , the children would enter back into th e system. She want s to adopt the children so she ha s the ability to choose who could care for the children if somethin g happen s to her. Additionally, she want s closure of
the entire situation and permanency for the children. The maternal great aunt
test ified she wan ts to adopt the children because she wants a more stable environment than KLG. Both resource parents conf irmed the Division informed them of the differences between KLG and adoption multiple times and they both want to pursue adoption

. The tr ial judge review ed each resource parent's testimony and found they both spoke to the Division regarding KLG and adoption multiple times prior to the remand hearing. The judge found the record s how ed the resource parents17 A

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understood the differences between KLG and adoption , and both made an "informed, unconditional, unambiguous, and unqualified " decision to adopt. W e
agree. Both resources parents chose to testify at the remand hearing, which resolve d the original hearing ' s evidentiary deficienc ies ; thus, we find t he trial judge's factual findings are supported by substantial credible evidence in the record. R.G. , 21 7 N.J. at 552. The trial judge saw and heard each resource parent's testimony and came to a well

- reasoned conclusion

. We see no need to distur b the factual findings that the resource parents understood the differences between KLG and their informed intention to adopt was unconditional, unambiguous, and unqualified. M.M

. , 459 N.J. Super at 264. We conclude the record contains suf ficient credibl e evidence to support the trial judge's finding that the Division established prongs three and four of the "best interests" test with clear and convincing evidence. Any arguments not addressed lack sufficient merit to warrant discussion
in a written opini on. R. 2:11

- 2(e)(1)(E). Affirmed.