DCPP VS. M.L., U.W., AND A.B., IN THE MATTER OF THE GUARDIANSHIP OF Y.W., AD.B., MAK.L. AND E.L. (FG-13-0070-17, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-5169-17T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
M.L.,
Defendant-Appellant,
and
U.W. and A.B.,
Defendants.
_____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF Y.W.,
AD.B., MAK.L., and E.L.,
Minors.
______________________________
Submitted September 23, 2019 – Decided October 7, 2019
Before Judges Fasciale, Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FG-13-0070-17.
Joseph E. Krakora, Public Defender, attorney for
appellant (Deric D. Wu, Assistant Deputy Public
Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason Wade Rockwell, Assistant Attorney
General, of counsel; Joann Marie Corsetto, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, attorney for
minors (Melissa R. Vance, Assistant Deputy Public
Defender, on the brief).
PER CURIAM
Defendant M.L. (the mother) appeals from a June 22, 2018 order
terminating her parental rights to four of her five children: (1) Y.W. (Yolanda),
born in 2004; (2) E.L. (Edward), born in 2007; (3) Ad.B. (Ashley), born in 2011;
and (4) Mak.L. (Michael), born in 2016. 1 The mother, who did not attend the
trial, argues that the Division of Child Protection and Permanency (Division)
did not prove by clear and convincing evidence prong four of the statutory best
1
We use pseudonyms to protect confidentiality. Defendant U.W., the father of
Yolanda and Edward, has not appealed from the termination of his parental
rights. Defendant A.B., Ashley's father, made a voluntary identified surrender
of his parental rights. Michael's father is unknown. Defendant's fifth child is
not involved in this action.
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interests of the child standard under N.J.S.A. 30:4C-15.1(a)(4). We disagree
and affirm.
In January 2013, the Division received a referral that Yolanda had not
attended school for two months. The Division investigated, and the mother
admitted that she did not enroll Yolanda in school when the family moved in
with the maternal grandmother. The mother's plan was to stay with family
members until she obtained independent housing, for which she had been
searching. With assistance from the Division, the mother enrolled Yolanda in
school. The Division found the allegations of educational neglect were
unfounded. It then closed the case because there were no concerns for the
children's health or safety.
About eighteen months later, the Division received another referral. This
allegation was that the mother was using drugs, and the children were not
regularly attending school or receiving necessary medical care. The Division
investigated the referral and determined that the allegations were unfounded, but
endeavored to assist the family.
The mother continued struggling with housing solutions. In February
2015, police officers responded to a call that the mother and her children had no
place to sleep, and that they needed help in finding a place to stay for the night.
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3
The officers assisted the family by returning them to the maternal grandmother's
apartment.
The housing problems continued. In May 2015, the Division received an
allegation that the mother had moved five times in the past year, from relative
to relative and motel to motel. The caller said the mother only had enough
money to stay at the current motel until the end of the week, and Yolanda had
missed a lot of school.
The Division investigated these allegations, and the mother acknowledged
that the children had been missing school because of a lack of transportation
from the motel. She stated that she was not working. The mother further
expressed that she had exhausted the housing and financial assistance available
to her from the government, which the Division confirmed with the Board of
Social Services. The Division paid motel expenses for the family. It provided
transportation assistance when the mother and her family stayed with various
relatives.
About a month later, during the Division's ongoing involvement with the
family, the Division received a report that Ashley's father ripped a corn row out
of Ashley's scalp and threatened to kill the mother and her family. The Division
investigated the report and found the allegations had not been established by a
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preponderance of the evidence. However, the mother obtained a restraining
order against Ashley's father and moved to a domestic violence shelter with
Ashley; Yolanda and Edward later joined them.
The domestic violence shelter worked to find transitional housing for the
mother upon her discharge and extended her stay pending resolution of her
housing application with Family Promise. The shelter was unable to extend the
mother's stay after Family Promise rejected her application, and the mother's
housing problems continued. In September 2015, the Division removed the
children because the shelter evicted the mother, and her family had no place to
live.
The mother threatened suicide, and a hospital admitted and treated her for
depression. While there, the mother learned that she was pregnant, and she told
her Division caseworker that the pregnancy was the result of a sexual assault.
In mid-September 2015, the hospital discharged the mother, and she started
living with a relative. She did not participate in the recommended outpatient
treatment.
In January 2016, the mother gave birth to Michael. The Division removed
Michael from the mother's care because she was unprepared for his arrival. She
did not have stable housing, nor did she remediate the mental health concerns
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5
previously noted by the Division. The Division continued supervising and
providing services to the family. The mother's situation, however, did not
substantially improve. In August 2016, she progressed to unsupervised
overnight weekend visits in addition to continued weekday visits with her
children. But the mother did not take the children out of the motel room,
including during her visit over the entire Thanksgiving weekend. The children
were bored, and sometimes Ashley or Yolanda declined visits. The Division
offered the mother transportation assistance during the visits and passes to a
nearby park, but she never took advantage of these offers.
In August 2016, the Division received another referral. This time, the
Division learned that the mother went to work and left the children alone during
their overnight and unsupervised visitation. The Division investigated, and it
concluded that the mother left the children alone for fewer than two hours,
during which she communicated with Yolanda by phone. Because of Yolanda's
cognitive delays, the Division was concerned that the mother left Yolanda in
charge of the younger children. Nevertheless, the Division found the allegations
of neglect and inadequate supervision were not established, so the mother's visits
remained unsupervised.
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The mother's mental health remained an issue. The Division scheduled
the mother for a psychological evaluation in 2016, but she refused to attend.
The mother did not regularly attend therapy, and she was noncompliant with her
antidepressant medications. In June 2017, the mother told her caseworker that
she had no health insurance and could not pay for counseling or medication
management. The Division provided assistance by reinstating these services.
However, the mother remained noncompliant.
Inadequate housing remained a problem too. The Division gave the
mother housing assistance, but she was uncooperative. She never obtained
housing suitable for herself and the children. Instead, she lived either in a motel
or with relatives who were unable to accommodate her family because the
relatives did not have enough room for the mother's children.
In addition, the Division provided the mother with assistance in obtaining
her GED, including free tutoring and transportation. But she never took
advantage of this assistance. The Division also sought out family support for
the mother, attempting to facilitate dialogue between her and her siblings.
However, once again, the mother was uncooperative. The Division helped the
mother find work, and although she found work at a factory as of April 2016,
she was unemployed by June 2017. Thereafter, in approximately
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January/February 2018, the Division learned that the mother was working at a
factory in Pennsylvania.
Around January 2017, the mother expressed thoughts of suicide and
received emergency mental health treatment. Although the Division continued
offering services to address the mother's mental health problems, she did not
participate in the referred long-term care. Her mental health issues and
inadequate housing continued while the children lived at the placements.
In August 2017, Yolanda and Ashley were moved to a pre-adoptive
resource home. In October 2017, Michael was moved to the same resource
home. The resource parent included Edward in family outings and vacations
with his siblings, and she expressed an interest in taking Edward into her home
and adopting all four children. In March 2018, the mother stopped
communicating with the Division and stopped attending visitation with the
children.
The mother never offered any possible relative placements for the
children. The Division considered placing the children with U.W.'s mother, but
ruled her out due to prior substantiations with the Division. The Division
considered placement with U.W.'s significant other, but ruled her out due to
outstanding criminal matters. The Division also considered the mother's sister,
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but ruled her out because she did not want to care for the children. Therefore,
there were no viable family placement options.
Judge Kondrup-Coyle conducted the trial. Division caseworkers Jorge
Agosto, Fernanda Valerio, Dayna Roselli, and Kristen Shannon testified. They
stated that the concerns that led the Division to seek the termination of the
mother's parental rights related to the mother's failure to remediate her mental
health issues and her chronic homelessness. The Division produced testimony
from its psychological expert, Dr. David Brandwein, who provided opinion
testimony as to his evaluations.
Dr. Brandwein diagnosed the mother with major depressive disorder,
recurrent and severe, with anxious distress, as well as post-traumatic stress
disorder. He also found that she had paranoid, schizoid, and avoidant
personality features. He opined that the mother was unable to safely parent her
children due to her persistent housing problems, her unstable employment, and
her failure to acknowledge or address her mental health issues, which negatively
affected her day-to-day functioning.
Regarding bonding, Dr. Brandwein had no doubt that the mother loved
her children, and they loved her. But he found few signs of a secure bond
between the mother and her children. The three older children knew who their
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mother was, but in the doctor's opinion, their interactions with her were not
consistently indicative of a parent-child bond. The youngest child did not appear
to have a bond with the mother at all.
Dr. Brandwein opined that, should the mother's parental rights be
terminated, Yolanda, Edward, and Ashley would suffer a transitory grief
reaction that could be remediated through therapy and their relationship with the
resource parent. He did not believe the children would suffer enduring harm.
As for Michael, Dr. Brandwein did not believe he would have any reaction
should his relationship with the mother be terminated. Dr. Brandwein believed
it was in the children's best interests for the mother's parental rights to be
terminated so the Division could seek permanency for them. In his opinion,
delaying permanency would exacerbate the children's feelings of uncertainty
and cause them further harm.
In Brandwein's opinion, "a positive, reciprocal relationship [was]
developing between [the resource parent] and the three minor children" in her
care. He believed that over time they would develop a secure bond and that the
resource parent, who had expressed her willingness to adopt all four children,
was capable of supporting the children into adulthood. Thus, the doctor
recommended that the Division seek permanency for all four children with the
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10
resource parent. In June 2018, Edward was placed in the same resource home
as his siblings.
The judge found that the Division proved all four prongs of the statutory
standard by clear and convincing evidence. As to the first three prongs, the
judge found that the mother had been unable to provide the children with a safe
and stable home, and she continued to be unable to do so, notwithstanding the
Division's extensive efforts to assist her in obtaining treatment for her mental
health issues, a GED, employment, and housing. Also, the judge found that the
children would be harmed by further delays in permanency. In the judge's
opinion, "there's no word big enough for how much the Division did in this
case," but the mother "did not want the help" because her depression negatively
affected every aspect of her life. Moreover, the judge found that the mother had
"shut down completely," as she stopped visiting her children and attending court
proceedings.
The applicable law and standard of review are well settled. "Parents have
a constitutional right to raise their children." N.J. Div. of Youth & Family Servs.
v. F.M., 211 N.J. 420, 447 (2012). But, "that right is not absolute." Ibid. "It is
a right tempered by the State's parens patriae responsibility to protect children
whose vulnerable lives or psychological well-being may have been harmed or
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may be seriously endangered by a neglectful or abusive parent." Ibid. (emphasis
in original).
Under N.J.S.A. 30:4C-15.1(a), the Division
shall initiate a petition to terminate parental rights on
the grounds of the "best interests of the child" . . . if the
following standards are met:
(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;
(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 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." In re Guardianship of K.H.O.,
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12
161 N.J. 337, 348 (1999). Accord F.M., 211 N.J. at 448; N.J. Div. of Youth &
Family Servs. v. I.S., 202 N.J. 145, 166-67 (2010); N.J. Div. of Youth & Family
Servs. v. P.P., 180 N.J. 494, 506 (2004).
When parents contest the termination of their parental rights, the court's
function is to decide whether the parents can raise the child without causing
further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "The burden
falls on the State to demonstrate by clear and convincing evidence that the
natural parent has not cured the initial cause of harm and will continue to cause
serious and lasting harm to the child." Ibid.
"Because of the elemental nature of the parent-child relationship, and
recognizing that the severing of that relationship is among the most 'severe and
. . . irreversible' forms of state action, . . . 'all doubts must be resolved against
termination of parental rights.'" N.J. Div. of Youth & Family Servs. v. E.P., 196
N.J. 88, 102-03 (2008) (citations omitted). "Severing the ties between a child
and a parent" must be viewed as "a weapon of last resort in the arsenal of state
power." F.M., 211 N.J. at 447.
As to prong four – the sole challenge by the mother – the Division must
prove by clear and convincing evidence that "[t]ermination of parental rights
will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). This prong
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"serves as a fail-safe against termination even where the remaining standards
have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609
(2007).
It does not require "a showing that no harm will befall the child as a result
of the severing of biological ties." K.H.O., 161 N.J. at 355. Rather, the question
to be addressed is whether, "after considering and balancing" the relationships
between the children and the biological parent, and the children and the resource
parent, the children will suffer greater harm from the termination of ties with
the biological parent than from the permanent disruption of their relationship
with the resource parent. Ibid.
In engaging in this analysis, the court should be cognizant of the children's
need for permanency. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527,
559 (2014); K.H.O., 161 N.J. at 357-58. Also, the court must consider the
permanency plan offered by the Division. N.J. Div. of Youth & Family Servs.
v. A.W., 103 N.J. 591, 610-11 (1986). "Ultimately, a child has a right to live in
a stable, nurturing environment and to have the psychological security that his
most deeply formed attachments will not be shattered." F.M., 211 N.J. at 453.
Therefore, the Division may establish the fourth prong where the biological
parent remains unable to care for the children in the foreseeable future, and
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termination will provide the children an opportunity for permanency. N.J. Div.
of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996).
Of course, our review of a trial court's termination of parental rights is
limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007).
An appellate court must uphold the trial court's factual findings if they are
supported by adequate, substantial, credible evidence in the record. F.M., 211
N.J. at 448-49; M.M., 189 N.J. at 279. Moreover, the trial court's findings as to
witness credibility are entitled to particular deference due to its superior ability
to evaluate the veracity of witnesses who testify before it. R.G., 217 N.J. at 552;
F.M., 211 N.J. at 448; M.M., 189 N.J. at 279.
As to prong four, the mother argues that the Division failed to prove by
clear and convincing evidence that termination of her parental rights would not
do more harm than good. She contends that she had a loving relationship with
her children, the children did not have a secure bond with their resource parent,
and the only thing preventing family reunification was her lack of housing,
which was caused by her poverty. We reject these contentions and affirm
substantially for the reasons given by Judge Kondrup-Coyle. We add the
following brief remarks.
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The judge found that Dr. David Brandwein was credible. She agreed with
his conclusion that the bond between the mother and the children was
deteriorating because of her failure to meet their needs and her failure to be
consistently present in their lives. The judge agreed with Dr. Brandwein's
conclusion that the children were developing a bond with the resource parent,
and he endorsed the Division's plan for the children to be placed together to
achieve permanency with the resource parent.
The record supports the judge's conclusion that termination of the mother's
parental rights would not do more harm than good. Dr. Brandwein's testimony
supports the conclusion that the children do not have a secure parent-child bond
with the mother. Additionally, the evidence shows that, at the time of trial, the
mother had withdrawn from the children's lives. She was not attending
visitation, she was no longer involved in mental health treatment, and she had
no plan for providing for her children.
Dr. Brandwein also emphasized the children's need for permanency,
which could be achieved through the Division's plan for the children to be
adopted by the resource parent. At the time of trial, the groundwork for a strong
bond between all four children and the resource parent had existed, and the
resource parent committed to adopting them. Since their removal from the
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mother in September 2015, the three older children have received therapy. In
addition, Edward has worked with a mentor, and Yolanda and Ashley have
received interventions addressing their educational delays.
Affirmed.
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