                                      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                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-2237-18T1
                                                                     A-2238-18T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

D.N.L. and M.J.,

     Defendants-Appellants.
_____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF M.N.J.,

     a Minor.
_____________________________

                    Submitted August 1, 2019 – Decided August 7, 2019

                    Before Judges Whipple and Firko.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Essex County, Docket
                    No. FG-07-0140-18.
              Joseph E. Krakora, Public Defender, attorney for
              appellant D.N.L. (Robyn A. Veasey, Deputy Public
              Defender, of counsel; Ruth Ann Harrigan, Designated
              Counsel, on the briefs).

              Joseph E. Krakora, Public Defender, attorney for
              appellant M.J. (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 (Jane C. Schuster, Assistant Attorney
              General, of counsel; Dana L. Paolillo, Deputy Attorney
              General, on the brief).

              Joseph E. Krakora, Public Defender, Law Guardian,
              attorney for minor (Joseph Hector Ruiz, Designated
              Counsel, on the brief).

PER CURIAM

        In these consolidated appeals, D.N.L. (mother) and M.J. (father), parents

of M.N.J., appeal the trial court's January 8, 2019 judgment of guardianship after

trial. We affirm.

        M.N.J. was removed from his mother and father after he was born in April

2017.    M.N.J. is medically fragile.    The Division of Child Protection and

Permanency (Division) filed a complaint for care and custody on May 17, 2017,

which the court granted after determining removal was necessary to avoid risk

to M.N.J.'s life, safety and health. Mother lost custody of her four other children

whom the Division removed from her care years earlier because of her

                                                                           A-2237-18T1
                                        2
instability, untreated substance abuse and extensive history with the Divisi on.

Father is incarcerated. M.N.J. lived in a foster home for a short period of time

after his birth before he was returned to a medical facility where he has remained

for the past two years. At the time of the guardianship trial, the Division's plan

for M.N.J. was release from the medical facility followed by select-home

adoption.

      The record in this matter is extensive and we need not repeat in detail the

history of the Division's involvement with mother and father because both

parents' arguments are narrowly focused on prongs three and four of the best

interests test, N.J.S.A. 30:4C-15.1(a)(3) and (4). We incorporate by reference

the factual findings and legal conclusions contained in Judge James R.

Paganelli's written opinion and focus on the facts relevant to the arguments

raised.

      When M.N.J. was born, doctors placed him on a feeding tube and treated

him for jaundice. A week after his birth, the Division caseworker met with

mother and father at the Division offices. The Division's original plan was to

place the child with father; however, when they discovered father's criminal

history, they requested he undergo a psychological and a substance abuse

evaluation. The psychologist opined father was not capable of parenting a


                                                                          A-2237-18T1
                                        3
newborn and offered a guarded prognosis for reunification. Father identified his

sister, L.J., as willing to assist in caring for M.N.J. The worker cautioned father

that if the child was placed with L.J., he would not be permitted to reside in

L.J.'s home with his son until he completed recommended services and the

Division had no concerns. L.J., however, would not take M.N.J. unless father

could be in the home. The Division asked L.J. whether she would allow mother

to reside in the home if she cared for M.N.J. and L.J. refused. Father continued

to have supervised visits with M.N.J. until his arrest and subsequent

incarceration in 2017. The Division could not extend visits to the prison because

of M.N.J.'s medical issues.

      In July 2017, mother and the Division discussed placing M.N.J. with

father's cousin, M.O., but M.O. refused to attend training until she knew the

Division would approve her home and did not respond to the Division's

subsequent attempts to contact her. In November 2017, the Division reached

out to another relative, A.O., who had expressed an interest in caring for M.N.J.,

but she never contacted the Division and was ultimately ruled out as a caretaker

for M.N.J.

      The Division explored other relatives. On February 20, 2018, the Division

wrote to father's adult son, I.J., to inquire if he was still interested in caring for


                                                                              A-2237-18T1
                                          4
M.N.J.   He was eventually ruled out because of housing insecurity.              In

September 2018, the Division began to assess mother's sister, P.H., as a potential

resource parent by conducting a background check and scheduling a home

assessment. The home assessment did not occur, but P.H. was not ruled out as

a placement. On October 15, 2018, the Division wrote to L.J. asking her to

contact the Division to be assessed as a caregiver.

      During the guardianship trial, the adoption supervisor testified that if the

Division were granted guardianship of M.N.J., the plan would be select-home

adoption. Two potential adoptive families had already been identified through

the exchange unit based on M.N.J.'s medical issues. The Division was not

permitted to contact those families until the Division was granted guardianship.

After considering all of the evidence in the record and applying the four prong

best interests test, Judge Paganelli granted guardianship to the Division and

terminated the parental rights of both mother and father. This appeal followed.

      Mother argues:

            POINT I
            THE TRIAL JUDGE FAILED TO MAKE A
            DETERMINATION SUPPORTED BY THE RECORD
            THAT    [THE   DIVISION]   CONSIDERED
            ALTERNATIVES TO TERMINATION.




                                                                          A-2237-18T1
                                        5
      POINT II
      REVERSAL IS WARRANTED BECAUSE THE
      EVIDENCE PRESENTED DID NOT SUPPORT THE
      [TRIAL]  COURT'S   CONCLUSION    THAT
      TERMINATION OF PARENTAL RIGHTS WOULD
      DO MORE HARM THAN GOOD.

Father argues:

      POINT I
      THE TRIAL COURT'[S] PRONG THREE ANALYSIS
      OF ALTERNATIVES TO TERMINATION OF M.J.'S
      PARENTAL     RIGHTS     WAS     LEGALLY
      ERRONEOUS     AND     NOT    BASED   ON
      SUBSTANTIAL CREDIBLE EVIDENCE IN THE
      RECORD BELOW.

            A. At The Conclusion Of The Guardianship Trial,
            A Plausible Alternative To Termination Of M.J.'s
            Parental Rights Existed.

            B. Placement Of M.N.J. With P.H. Will Serve
            His Best Interests.

            C. The Trial Court's Conclusion That Adoption
            Was Likely And Feasible Was Legally
            Erroneous.

            D. A Potential Caregiver Is Entitled To Receive
            Information About The Availability Of [Kinship
            Legal Guardianship] As An Alternative To
            Termination Of Parental Rights.

      POINT II
      [THE     DIVISION] FAILED  TO    MAKE
      REASONABLE EFFORTS ON BEHALF OF M.J.



                                                               A-2237-18T1
                                6
            POINT III
            WITHOUT A PROPER ASSESSMENT OF
            ALTERNATIVES TO THE TERMINATION OF
            M.J.'S PARENTAL RIGHTS, THE TRIAL COURT
            COULD      NOT    DETERMINE    WHETHER
            TERMINATION WOULD DO MORE HARM THAN
            GOOD.

      We are satisfied that, commencing with the Division's involvement with

mother, continuing up to and including trial in December 2018 and January

2019, M.N.J. has been endangered by the parental relationship with mother and

father because their own circumstances, substance abuse, instability and

recurring incarceration have rendered them unable to care for their child. Both

mother and father endangered the child through their inability to address the

child's complex medical needs. The credible expert evidence demonstrates both

parents lack the capacity to care for the child and are incapable of providing a

safe, stable and permanent home.

      We first address mother's argument. We reject the assertion that the

Division did not consider alternatives to termination. Potential placements with

several other family members were considered.       The Division attempted to

assess some potential family placements numerous times and ruled out those

family members when they did not respond to Division contact. Mother argues

the record demonstrates that at the time of trial a feasible placement with P.H.,


                                                                         A-2237-18T1
                                       7
including a Kinship Legal Guardianship (KLG), was not fully explored, despite

the fact that P.H. had previously been approved as a resource parent.

      P.H. was not ruled out as a placement and remains a potential placement.

However, N.J.S.A. 3B:12A-6(d)(3)(b) states that KLG is proper only when

adoption is "neither feasible nor likely." See N.J. Div. of Youth & Family Servs.

v. H.R., 431 N.J. Super. 212, 230-31 (App. Div. 2013). The Division's position

at trial, accepted by the judge and supported by the record, was that select-home

adoption was feasible and likely. Thus, placement with P.H. was not a viable

alternative to termination of parental rights as mother suggests.

      We reject father's arguments as well. We have previously said that KLG

"is not intended as an equally available alternative to termination that must be

considered in order to satisfy the third element of N.J.S.A. 30:4C-15.1[(a)]."

N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 88 (App. Div.

2003).

      Judge Paganelli carefully reviewed the evidence presented and thereafter

concluded that the Division had met all of the legal requirements for a judgment

of guardianship by clear and convincing evidence. Potential adoptive famil ies

have been identified for the child's therapeutic needs. See N.J. Div. of Youth &

Family Servs. v. A.W., 103 N.J. 591, 611 (1986) (explaining that termination of


                                                                         A-2237-18T1
                                        8
parental rights may precede the establishment of a definite permanency plan

when justice so requires). And the judge also ruled that, even if the Division is

unsuccessful in achieving permanent placement, there would still be no

circumstances under which the child should be reunited with mother or father.

See In re Guardianship of K.H.O., 161 N.J. 337, 357 (1999) ("In all our

guardianship and adoption cases, the child's need for permanency and stability

emerges as a central factor.").

      The judge's opinion comports with the statutory requirements of N.J.S.A.

30:4C-15.1(a). See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420,

448-49 (2012); K.H.O., 161 N.J. at 347-48. We therefore affirm substantially

for the reasons the judge expressed in his comprehensive, well-reasoned

opinion.

      Affirmed.




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