                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2620-18T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

                    Plaintiff-Respondent,

v.

J.B.,

          Defendant-Appellant.
______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF D.R., Jr.,

          A Minor.
______________________________

                    Argued March 4, 2020 – Decided March 11, 2020

                    Before Judges Haas, Mayer and Enright.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Union County, Docket
                    No. FG-20-0045-18.

                    Anne E. Gowen, Designated Counsel, argued the cause
                    for appellant (Joseph E. Krakora, Public Defender,
             attorney; Robyn A. Veasey, Deputy Public Defender,
             of counsel; Anne E. Gowen, on the briefs).

             Samuel Fillman, Deputy Attorney General, argued the
             cause for respondent (Gurbir S. Grewal, Attorney
             General, attorney; Jane C. Schuster, Assistant Attorney
             General, of counsel; Samuel Fillman, on the brief).

             Noel Christian Devlin, Assistant Deputy Public
             Defender, argued the cause for minor (Joseph E.
             Krakora, Public Defender, Law Guardian, attorney;
             Noel Christian Devlin, of counsel and on the brief).

PER CURIAM

      Defendant J.B.,1 the biological mother of D.R., Jr. (Daniel), born in March

2017, appeals from the Family Part's February 5, 2019 judgment of guardianship

terminating her parental rights to the child. 2   Defendant contends that the

Division of Child Protection and Permanency (Division) failed to prove prongs

three and four of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.

Defendant also alleges that her trial attorney did not provide her with effective

legal assistance. The Law Guardian supports the determinations on appeal as it

did before the trial court.


1
  We refer to the adult parties and family members by initials, and to the child
by a fictitious name, to protect their privacy. R. 1:38-3(d)(12).
2
  The child's biological father has never been identified. However, the judgment
also terminated the parental rights of "The Biological Father, Whomsoever He
May Be." This portion of the judgment is uncontested in this appeal.
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                                       2
      Based on our review of the record and applicable law, we are satisfied that

the evidence in favor of the guardianship petition overwhelmingly supports the

decision to terminate defendant's parental rights, and that defendant's attorney

provided her with effective representation. Accordingly, we affirm substantially

for the reasons set forth in Judge James Hely's thorough and thoughtful oral

decision rendered on February 5, 2019.

       We incorporate by reference the factual findings and legal conclusions

contained in Judge Hely's decision, and add the following comments. The

hospital where Daniel was born contacted the Division shortly after the child

and defendant tested positive for opiates at the time of the child's birth.

Defendant admitted to taking heroin during her pregnancy and, as a result,

Daniel suffered from withdrawal symptoms and had to be cared for in the

neonatal intensive care unit for several weeks. Prior to the hospital's release of

the child, the Division conducted an emergency removal and obtained custody

of Daniel. Defendant later stipulated that she abused or neglected Daniel within

the intendment of N.J.S.A. 9:6-8.21(c) "by using drugs during her pregnancy

which [caused] the child to be born positive for the same and experience

withdrawal symptoms."




                                                                          A-2620-18T2
                                        3
      The Division placed the child with defendant's mother, K.W. in March

2017. Both defendant and her mother knew that defendant's contact with the

baby had to be supervised. However, the Division soon learned that K.W. had

permitted defendant to have unsupervised contact with Daniel on multiple

occasions when K.W. was away from her home. David Kumar, a Division

caseworker, testified that K.W.'s failure to abide by the visitation order allow ed

defendant, who was still using drugs, to breastfeed the baby during K.W.'s

absences. Kumar stated that K.W. also failed to advise the Division that her

employer had terminated her and it was likely she would soon have to move to

a smaller apartment. Based upon the safety concerns raised by these disclosures,

the Division removed Daniel from K.W.'s care and placed him with the resource

parent with whom he has lived ever since.

      The Division attempted to work with defendant to address her severe

substance abuse problem so she could reunite with Daniel.           The Division

referred defendant to Dr. Allison Strasser Winston, who was qualified at trial as

an expert in the field of psychology with an emphasis on parental fitness and

bonding, for an evaluation. Dr. Winston testified that defendant used opiates

prior to her pregnancy, during her pregnancy, and continued to use them after

Daniel was removed from her care. Under these circumstances, Dr. Winston


                                                                           A-2620-18T2
                                        4
opined that defendant could not provide the child with a safe and stable

environment at that time, and lacked the parenting skills necessary to care for a

baby.

        Based upon Dr. Winston's examination, the Division referred defendant

for substance abuse evaluations, but she missed several scheduled appointments.

In July 2017, defendant did attend a short-term "detox" program for five days,

but declined to attend or complete the follow-up long-term program. Defendant

did not cooperate with any further services.

        The Division arranged for defendant to have weekly, supervised visits

with Daniel at the Division's office. However, defendant's attendance at these

visits was sporadic. After seeing the child on February 26, 2018, defendant did

not visit Daniel again until January 2019, shortly before the trial began.

        During this period, defendant essentially disappeared.     The Division

attempted to find her at her last known addresses, but was unable to do so. On

May 25, 2018, the Division contacted K.W., who was now living in North

Carolina, but K.W. denied knowing anything about her daughter's whereabouts

or circumstances.     The Division later learned that defendant had become

pregnant and had given birth to a daughter in April 2018. At a court appearance,3


3
    Defendant tested positive for opiates and methadone at this court appearance.
                                                                             A-2620-18T2
                                        5
defendant told the Division that K.W. had taken her to North Carolina two

months before the baby's birth so she could "get clean." After the baby was

born, defendant left her in K.W.'s care when she returned to New Jersey. Thus,

K.W. obviously knew where defendant was when the Division called seeking to

find defendant. Defendant stated she hid the baby from the Division to prevent

the agency from seeking custody of the child.

      Because the Division's plan for Daniel had changed from reunification

with defendant to the termination of her parental rights, the Division attempted

to arrange a bonding evaluation between defendant and her son. The evaluation

was scheduled three times, but defendant failed to appear for any of these

appointments.

      In November 2018, the Division submitted an Interstate Compact on the

Placement of Children (ICPC) home assessment request for K.W.'s home in

North Carolina because she had indicated she might be interested in serving as

a caregiver for Daniel. The assessment was still pending at the time of the

February 2019 trial.    The Division also assessed several other relatives as

potential placements, but all were ruled out.

      Dr. Winston conducted a bonding evaluation between the resource parent

and Daniel.     Dr. Winston opined that the child had "a strong and secure


                                                                        A-2620-18T2
                                        6
emotional attachment to the resource parent which is the best kind to have." Dr.

Winston stated that the resource parent was Daniel's "psychological parent,"

who is "the person that he views as his mother and to disrupt that relationship

would be very traumatic to him." Dr. Winston explained that if the bond

between the resource parent and Daniel was broken, he would suffer emotional

problems; "might regress with some of the developmental skills that he had

achieved"; would "likely become very withdrawn [and] insecure"; and "might

exhibit behavioral [and] [c]ognitive issues." She further opined that "disrupting

an attachment relationship at such an early age could impact on [Daniel's] ability

to develop future attachment relationships because he's afraid to trust other

people because he's afraid that this could happen again."

      Defendant did not call an expert to contest any of Dr. Winston's

conclusions, and she did not testify on her own behalf 4 or present any other

witnesses. K.W. was present at the trial but, even though she was on defendant's

witness list, she did not testify when given the opportunity to do so.

      In his comprehensive opinion, Judge Hely reviewed the evidence

presented at the trial, and concluded that (1) the Division had proven all four



4
  On the day the trial began, defendant tested positive for opiates, cocaine,
amphetamine, and methamphetamine.
                                                                          A-2620-18T2
                                        7
prongs of the best interests test by clear and convincing evidence, N.J.S.A.

30:4C-15.1(a); and (2) termination of defendant's parental rights was in Daniel's

best interests. In this appeal, our review of the trial judge's decision is limited.

We defer to his expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394,

413 (1998), and we are bound by his factual findings so long as they are

supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs.

v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J.

Super. 172, 188 (App. Div. 1993)).

      Applying these principles, we conclude that Judge Hely's factual findings

are fully supported by the record and, in light of those facts, his legal conclusions

are unassailable. We therefore affirm substantially for the reasons that the judge

expressed in his well-reasoned opinion, and briefly address the following

matters.

      In Point I of her brief, defendant argues that the trial court "abandoned its

obligation to independently assess the reasonableness of [the Division's] May

2017 decision to remove Daniel from his grandmother's home." In making this

argument, defendant points to a single sentence in the lengthy portion of the

judge's oral opinion where he addressed the question of whether the May 2017

change of placement was appropriate under the circumstances. There the judge


                                                                             A-2620-18T2
                                         8
stated, "[a]nd, I don't think it's the [c]ourt's . . . province to second guess that

decision making." Based solely upon this one sentence, defendant asserts Judge

Hely failed to independently review and determine whether the Division had

established a valid reason for its decision to change Daniel's placement after it

discovered that K.W. had left the child unsupervised with defendant on multiple

occasions and did not disclose that she no longer had a job. Instead, defendant

argues that the judge "inappropriately delegated responsibility to the [Division]

on the question of the sufficiency of the [Division's] own evidence[.]"

      We conclude that defendant's argument lacks merit because it ignores the

fact that the judge's remark was part of a much longer discussion where the judge

identified the factors cited by the Division to support a change in Daniel's

placement, thoroughly analyzed those factors, and correctly concluded that the

Division's decision was amply supported by the record.

      In his oral decision, Judge Hely stated:

                  Mr. Kumar [the Division's caseworker] testified
            that the baby was first placed with maternal
            grandmother, [K.W.] [K.W.] had the child in her care
            up through . . . May 2017. However, the Division found
            several aspects of that placement . . . led to concerns
            about the safety of the child and the child was removed
            and placed in the present resource home where [Daniel]
            has been since May 26, 2017 at the age of two months.
            Specifically, the Division's concerns about the maternal
            grandmother were that [defendant's] time with the child

                                                                            A-2620-18T2
                                         9
            was not being supervised by the grandmother as had
            been ordered by the court. Also, the [Division] was
            concerned about [K.W.] being untruthful about her
            employment status. In addition, there [were] concerns
            about [K.W.] abusing alcohol.

                   Now, the Division has a statutory obligation to
            search for possible relatives for placement and that's
            under N.J.S.A. 30:4C-12.1.         And they did that
            specifically in this case. And I find that that was
            appropriate. But the removal from the grandmother['s]
            ca[r]e in May was also appropriate given the concerns
            that the Division had. And I don't think it's the [c]ourt's
            . . . province to second guess that decision making.
            They had concerns about the safety and health of the
            child and therefore I . . . find [s]pecifically that the
            Division met its obligations to seek relatives in addition
            to other evidence we have on other relatives. And in
            fact, the Division has continued to explore the
            possibility of placement with the maternal
            grandmother, that same one who had the child for the
            initial two months of his life. And the Division has
            done that by sending out to North Carolina for a[n]
            assessment of the home by interstate compact.

             [(Emphasis added).]

      As is readily apparent from the above quote, the judge did not "abandon"

his "obligation to independently assess the reasonableness of the [Division's]

May 2017 decision to remove Daniel from his grandmother's home."                 He

fulfilled his duty to provide the parties with a clear statement of his own findings

of fact and conclusions of law. See R. 1:7-4 (requiring the trial judge to "find



                                                                            A-2620-18T2
                                        10
the facts and state [his or her] conclusions of law thereon in all actions tried

without a jury").

      Thus, read in the proper context, the judge was merely observing that the

Division's proofs on the issue, which were uncontradicted by defendant at trial,

were so overwhelming that he had no basis to make a contrary determination. If

this point were not already clear, the judge made additional findings concerning

the issue later in his decision. For example, the judge also found:


            The defense has contended that the child should be
            placed with the maternal grandmother at this late date,
            in spite of the fact that the baby was removed from her
            care way back in May 2017 for what the . . . [c]ourt
            finds to be legitimate reasons. It was not unreasonable
            under the circumstances for the Division to change the
            placement at that time.

The judge continued by stating:

            The credible evidence with respect to the third prong is
            that the Division has made more than reasonable efforts
            to provide services that have not been taken advantage
            of by [defendant]. Given the length of time the child
            has been in the loving resource home I do not find that
            there is an alternative given our stated goal of
            permanent placement.

      Because defendant has misread the judge's decision, which plainly stated

the basis for his conclusion that the Division had ample grounds to change

Daniel's placement in May 2017, we reject defendant's contrary contention.

                                                                        A-2620-18T2
                                      11
      Turning to Point III of defendant's brief, she next asserts that in

terminating defendant's parental rights to Daniel, the judge failed to consider the

harm the child would suffer from the likely "severance of Daniel's relationship

with his baby sister." Defendant's argument is based on her view that the

Division should have re-placed Daniel with K.W. after defendant gave birth to

a new baby in April 2018, despite the fact that (1) the Division had previously,

and appropriately, removed the child from K.W.'s care in May 2017 based upon

the legitimate concerns it had concerning her ability to care for him; and (2) both

defendant and K.W. hid the new baby's birth from the Division. This contention

lacks merit.

       When the Division accepts a child into its care or custody, it must "initiate

a search for relatives who may be willing and able to provide the care and

support required by the child."       N.J.S.A. 30:4C-12.1(a).      We have long

recognized "the Division's policy to place children with relatives whenever

possible." N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 527

(App. Div. 2003). Yet, "there is no presumption in favor of placement with

relatives[.]" N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super.

568, 580 (App. Div. 2011). Nonetheless, the Division may not seek termination




                                                                            A-2620-18T2
                                        12
of parental rights and adoption by foster parents without first exploring available

relative placements. Ibid.

      The Division's statutory obligation requires prompt identification of

relatives and notice to them of the results of any investigation. Ibid. This

"obligation does not permit willful blindness and inexplicable delay" in the

approval or disapproval of a relative known to the Division. Id. at 582. New

Jersey, however, has a strong public policy in favor of permanency.             In re

Guardianship of K.H.O., 161 N.J. 337, 357 (1999). A delay in permanency

based on the Division's failure to comply with statutory obligations is warranted

only when it is in the child's best interests. K.L.W., 419 N.J. Super. at 581-83.

Thus, the trial court ultimately must determine whether placement with the

relative serves the child's best interests. Id. at 581; M.F., 357 N.J. Super. at 528.

      However, we have viewed the Division's obligations under N.J.S.A.

30:4C-12.1 as an additional aspect of the four-prong "best interests" test in

N.J.S.A. 30:4C-15.1(a).      Ibid.   "[A]ssessment of relatives is part of the

Division's obligation to consult and cooperate with the parent in developing a

plan for appropriate services that reinforce the family structure." K.L.W., 419

N.J. Super. at 583 (citing N.J.S.A. 30:4C-15.1(c)(1)). If the Division "fails to

comply with its obligation [under N.J.S.A. 30:4C-12.1], the judicial


                                                                             A-2620-18T2
                                        13
determinations that follow are made without information relevant to the best

interests of the child." Id. at 581. However, even when the Division fails to

comply with that obligation, "[d]elay of permanency or reversal of termination

. . . is warranted only when it is in the best interests of the child." Ibid.

      Applying these principles, we are unpersuaded that the Division failed to

fulfill its obligations under N.J.S.A. 30:4C-12.1 or that a remand is required as

suggested by defendant. Contrary to defendant's contention, "[t]he reality is

that, no matter how fit or willing a proposed relative may be, a child will, in

some instances, be better off remaining in a successful foster placement." N.J.

Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 85 (App. Div. 2013).

      That is clearly the case here. As discussed above, the Division determined

in May 2017 that K.W. was not an appropriate placement for Daniel and, as

Judge Hely correctly found, the record amply supports that decision. While

K.W. belatedly expressed an interest in again being considered as a placement

alternative, her request came much too late in the process. As the uncontradicted

psychological expert testimony presented at trial demonstrated, Daniel is firmly

bonded with his resource parent, who has cared for him since May 2017. The

resource parent is Daniel's psychological parent and we discern no basis for




                                                                                A-2620-18T2
                                        14
disturbing Judge Hely's reasoned determination that separating the child from

her would clearly harm the child.

      In making this decision, the judge recognized that Daniel has a new sister,

who he does not know, but determined that this was not a sufficient reason to

forestall a decision on the termination of defendant's parental rights. Nothing in

the record indicates that it would be in Daniel's best interests to delay

permanency. Daniel is entitled to a permanent, safe, and secure home. We

acknowledge "the need for permanency of placements by placing limits on the

time for a birth parent to correct conditions in anticipation of reuniting with the

child." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111

(App. Div. 2004). As public policy increasingly focuses on a child's need for

permanency, "[t]he emphasis has shifted from protracted efforts for

reunification with a birth parent to an expeditious, permanent placement to

promote the child's well-being." Ibid. (citing N.J.S.A. 30:4C-11.1). That is

because "[a] child cannot be held prisoner of the rights of others, even those of

his or her parents. Children have their own rights, including the right to a

permanent, safe and stable placement." Ibid.

      Here, the judge properly focused on Daniel's best interests, rather than

those of defendant or K.W., who is not a party to this action. Because the judge


                                                                           A-2620-18T2
                                       15
correctly weighed the benefits against the harms of a termination judgment as

required by N.J.S.A. 30:4C-15.1(a)(4), and concluded that Daniel deserves

permanency at this point in his young life, we affirm the judgment terminating

defendant's parental rights.

      In so ruling, we reject defendant's arguments in Point II of her brief that

her trial counsel did not provide her with effective legal representation. To

establish an ineffective assistance of counsel claim in matters involving the

termination of parental rights, a defendant must meet the two-prong test

established in Strickland v. Washington, 466 U.S. 668, 687 (1984), which

requires a showing that trial counsel's performance was deficient and that, but

for the deficient performance, the result would have been different. N.J. Div. of

Youth & Family Servs. v. B.R., 192 N.J. 301, 307-09 (2007) (citing Strickland,

466 U.S. at 687, 694). The defendant bears the burden of demonstrating a

constitutional violation, as the court will presume that counsel acted

competently. United States v. Chronic, 466 U.S. 648, 658 (1984). Defendant

has failed to meet that burden here.

      Defendant baldly argues that her attorney did not adequately review the

Division's records and, as a result, neglected to introduce a number of documents

that she asserts would have bolstered her claim that the Division erred in


                                                                         A-2620-18T2
                                       16
changing Daniel's placement in May 2017. 5 However, while these records

confirm that prior to moving the child to his current home, nothing seemed amiss

at K.W.'s residence, they also reinforce the testimony of the Division's two

caseworkers that, among other things, the Division discovered that K.W.

violated the terms of the safety protection plan by allowing defendant to have

unsupervised access to the child. Contrary to defendant's unsupported claim that

Kumar unilaterally removed the child from K.W.'s care in a "fit of pique," the

documents further demonstrate that the Division adequately documented its

reasons for this change of placement. Under these circumstances, we discern no

basis for second-guessing defense counsel's tactical decision not to attempt to

rely upon these documents.

      Defendant also argues that her trial attorney was ineffective because she

did not make a request that North Carolina expedite its home assessment review

of K.W.'s residence, or should have argued that an assessment was not required.

However, any request to expedite or end the review process would not have

altered the fact that by the time K.W. belatedly attempted to re-enter the picture,

Daniel was firmly bonded with his resource parent. As discussed above, the



5
 Defendant filed a motion to supplement the record with these documents and
we now grant that motion.
                                                                           A-2620-18T2
                                       17
unrebutted expert testimony showed that the child would suffer enduring harm

if that bond were broken. Therefore, we reject defendant's contention on this

point.

         Affirmed.




                                                                      A-2620-18T2
                                    18
