                             RECORD IMPOUNDED


                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.


                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET 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 October 25, 2017

              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).
               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.

                                               2                              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 constitutionally-

protected liberty interests and scores of centuries of societal

                                       3                             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).]



                                  4                          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

                                          5                                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

                                  6                           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.

                                  7                          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

                                  8                              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.]."

                                         9                                      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

                                    10                             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

                                      11                                 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


                                       12                                 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



                                    13                              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

                                    14                              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

                                        15                                     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

                                        16                                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.

                                       17                                 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

                                             18                                     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


                                     19                              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

                                    20                                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.

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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.



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