RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4577-18T2

 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NOT FOR PUBLICATION WITHOUT THE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-4577-18T2

Before Judges Yannotti, Hoffman and Currier.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Hudson County, 

Docket No. FG-09-0206-18.

Joseph E. Krakora, Public Defender, attorney for 

appellant M.M. (Robyn A. Veasey, Deputy Public 

Defender, of counsel; Andrew Robert 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 Daniel O'Kelly, 

Designated Counsel, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Melissa H. Raksa, Assistant Attorney 

General, of counsel; Sara M. Gregory, Deputy Attorney 

General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney 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, 2019. See

N.J. Div. of Child Prot. & Permanency v. M.M., 459 N.J. Super. 246 (App. Div. 

2019). 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 two 
3

A-4577-18T2

prongs of the termination statute, N.J.S.A. 30:4c-15.1(a); however, we 

remanded the case with respect to prongs three and four of the statute, finding 

the record "insufficiently clear" concerning the issues of adoption and the 

potential alternative of Kinship Legal Guardianship (KLG). Id. at 257.

On remand, the same judge who presided over the guardianship trial heard 

testimony from the two long-term caretakers1for the six children involved in 

this case. After both caretakers provided testimony confirming their intention 

to adopt the children in their respective care, notwithstanding their 

understanding of the availability of KLG, the judge reaffirmed her original 

determination to terminate parental rights. Defendants M.M. (the 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 252-55. 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-4577-18T2

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 mother'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 care 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 married.

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, the 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 

parental rights.
5

A-4577-18T2

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 children raised concerns of physical abuse. The 

Division placed Kevin and Larry with their maternal grandmother, and placed

Zarah, Zena, and Zadie with their maternal great aunt. In September 2017, the 

Division filed its guardianship complaint in this matter. That same month, the 

mother gave birth to Zelda, who the Division removed from defendants' care,

placing her with her maternal grandmother and adding her to the guardianship 

proceedings in an amended complaint.

At the initial four-day trial, the Division presented substantial evidence

reflecting defendants' significant struggles, which included their repeated 

marijuana use, unemployment, lack of stable housing, and inadequate

supervision of their children, including an incident where Larry sustained 

second-degree burns from a radiator.

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' rights to enable 

such adoption was in the children's best interests.
6

A-4577-18T2

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 found the record supported the trial judge's 

findings that the Division made "reasonable efforts" to provide services to both 

parents; however, we found the record inadequate as to the second clause of 

N.J.S.A. 30:4C-15.1(a)(3), that "the court has considered alternatives to 

termination of parental rights." Id. at 258. We acknowledged the caregivers

should not function as the ultimate decision maker to the child's fate, but 

emphasized their preference was not categorically irrelevant. Id. at 263-64. We 

concluded 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 265.

Interpreting the Kinship Legal Guardianship Notification Act (the KLG 

Notification Act),4 we held "the caregiver must be fully informed of the potential 

4

 N.J.S.A. 30:4C-89 to -92
7

A-4577-18T2

benefits and burdens of KLG before deciding whether he or she wished to adopt. 

Once he or she is provided with that comparative information, the caretaker's 

preference between the two alternatives should matter." Id. at 262-63. We 

construed "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 each resource parent unequivocally, 

unambiguously, and unconditionally 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 

feasibility of adoption and the unequivocal consent of 

the resource parents to adoption.

[Id. at 252.]

In all other respects, we upheld the trial judge's decision. Ibid. Additionally, 

we deferred "to the trial judge's discretion as to what forms of proof would be 

appropriate for the remand hearing." Id. at 275.

The Remand Proceedings

On May 23, 2019, the trial judge held the remand hearing. The Division 

presented testimony from the children's caretakers, who both confirmed their 
8

A-4577-18T2

awareness of KLG and their continued desire to adopt the respective children in 

their care.

When asked about her intentions regarding Larry, Kevin and Zelda, the 

maternal grandmother replied that she wants "to adopt them . . . I'm very sure. 

I'm solid on it." She said Division workers 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 wants to adopt the children, rather than

KLG. She understood she was free to refuse to adopt the children and 

recognized the Division would not remove the children under a KLG, unless it 

was to return them to their parents. After adoption, she has no intention of

changing the children's names and expects to allow the children to have 

continued contact with their parents.

When asked about her intentions regarding Zarah, Zena, and Zadie, the 

maternal great aunt replied, "I'm committed to adopting them." She stated she 

understands the differences between adoption and KLG and gave the matter 

consideration. She denied the claim that she previously said she preferred KLG 

over adoption. She confirmed she spoke with a Division caseworker and her 

lawyer in the previous month regarding the differences between KLG and 

adoption and said she previously spoke to caseworkers numerous times 
9

A-4577-18T2

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 terminating the 

parental rights of both parents. The judge held the 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 appropriate 

housing for their children. Additionally, the judge cited 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

children.

Addressing the second clause of prong three – the alternatives to 

termination of parental rights – the judge 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 Division and each foster 

parent understood those differences. It was evident that 

[the maternal great aunt] made an informed and 

thoughtful decision. 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 under 
10 A-4577-18T2

KLG, if something were to happen to her, the children 

would once again be in the system but if she adopted 

she could carefully choose a guardian for the children. 

Her decision to adopt was unconditional, unambiguous 

and unqualified.

The judge noted that the maternal great aunt refuted the claim of the father's 

expert, Dr. Barry Katz, who previously reported that "she preferred KLG over 

adoption."

The judge further found that both resource parents believed adoption was 

the best option for the children to prevent the "back and forth" nature of KLG. 

The judge concluded the Division met its burden by clear and convincing 

evidence and "there are no alternatives to termination of parental rights" because 

the resource parents clearly desire to adopt the children in their care.

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 languished in the foster care system for years." The judge explained,

The expert testimony of Dr. Wells clearly established 

that any harm to the children . . . can be mitigated 

through therapeutic services and their foster parent. 

Otherwise she testified that none of the . . . children will 

suffer any harm from termination of their parents' 

parental rights. Both foster parents testified that they 

will continue to foster a relationship with the parents.
11 A-4577-18T2

On June 25, 2019, both M.M. and V.B. filed this appeal, challenging 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 factfindings 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 "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 & 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 findings to ensure that there is not a denial of 
12 A-4577-18T2

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 Servs. 

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 and overlap with one another 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 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;
13 A-4577-18T2

(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.

The third prong of the best-interests-of-the-child standard, 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, an alternative to termination 

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 resulted from 

the Legislature'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-4577-18T2

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:12A-6(d)(3) to (4)). But 

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 adoption 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 satisfied. N.J. Div. of Youth & 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 Legislature 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 objective, the Legislature enacted the KLG 

Notification Act, N.J.S.A. 30:4C-89 to -92, in 2005. The Legislature enacted 
15 A-4577-18T2

the KLG Notification Act "to ensure that individuals who may be eligible to 

become kinship legal guardians are aware of the eligibility requirements 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 fullrange 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 whether 

he or she wishes 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 be 
16 A-4577-18T2

not only informed, but also unconditional, 

unambiguous, and unqualified.

[M.M., 459 N.J. Super. at 263-64.]

On this appeal, following our remand, the mother and the father both argue 

the record does not support the trial judge's finding that the decisions of the

resource parents to adopt the children in their care 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 the system. 

She wants to adopt the children so she has the ability to choose who could care 

for the children if something happens to her. Additionally, she wants closure of 

the entire situation and permanency for the children. The maternal great aunt

testified she wants to adopt the children because she wants a more stable 

environment than KLG. Both resource parents confirmed the Division informed 

them of the differences between KLG and adoption multiple times and they both 

want to pursue adoption.

The trial judge reviewed 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 showed the resource parents
17 A-4577-18T2

understood the differences between KLG and adoption, and both made an 

"informed, unconditional, unambiguous, and unqualified" decision to adopt. We 

agree.

Both resources parents chose to testify at the remand hearing, which 

resolved the original hearing's evidentiary deficiencies; thus, we find the trial 

judge's factual findings are supported by substantial credible evidence in the 

record. R.G., 217 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 

disturb 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 sufficient credible 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 opinion. R. 2:11-2(e)(1)(E).

Affirmed.