DCPP VS. K.W. AND T.T., IN THE MATTER OF THE GUARDIANSHIP OF M.C. (FG-03-0009-21, BURLINGTON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-2487-20
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
K.W.,1
Defendant-Appellant,
and
T.T.,
Defendant.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF
M.C., a minor.
_________________________
Submitted November 29, 2021 – Decided December 14, 2021
1
We use initials to protect the privacy of the parties and minor child. R. 1:38-
3(d)(15).
Before Judges Fasciale and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FG-03-0009-21.
Joseph E. Krakora, Public Defender, attorney for
appellant (Phuong Dao, Designated Counsel, on the
briefs.)
Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Nicholas Dolinsky, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Todd Wilson, Designated
Counsel, on the brief).
PER CURIAM
Defendant K.W. (the mother) appeals from an April 16, 2021 order
terminating her parental rights to her son, M.C. (the child) born in 2018, and
awarding guardianship to the Division of Child Protection and Permanency (the
Division). The Division removed the child—due to domestic violence,
marijuana use, and parental unfitness—when he was nine months old and
initially placed him with F.V. and E.V., and later R.P. Judge Richard L.
Hertzberg presided over the trial, entered the judgment, and rendered a
thoughtful and comprehensive decision.
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On appeal, the mother argues:
POINT I
BECAUSE [THE DIVISION] FAILED TO PROVE BY
CLEAR AND CONVINCING EVIDENCE THAT
[THE MOTHER]'S PARENTAL RIGHTS TO [THE
CHILD] SHOULD BE TERMINATED, THE TRIAL
COURT'S ORDER TERMINATING [HER]
PARENTAL RIGHTS MUST BE VACATED.
(1) The Trial Court Erred When It Found That [The
Mother]'s Parental Relationship Presented A
Substantial Risk Of Harm To [The Child].
(2) The Trial Court Was Wrong When It Found That
[The Mother] Was Unable Or Unwilling To Mitigate
The Harm.
(3) The Trial Court Erred In Finding That The Division
Provided Reasonable Services Under Prong Three.
(4) The Trial Court Erred When It Found That
Termination Of Parental Rights Was In The Child's
Best Interest.
We disagree and affirm substantially for the reasons given by the judge in his
oral opinion. We add these remarks.
I.
Parents have a constitutionally protected right to the care, custody, and
control of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re
Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citations omitted). That
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3
right is not absolute. N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591,
599 (1986). At times, a parent's interest must yield to the State's obligation to
protect children from harm. See N.J. Div. of Youth & Fam. Servs. v. G.M., 198
N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The
Legislature created a test to determine when it is in the child's best interests to
terminate parental rights to effectuate these concerns. To terminate parental
rights, N.J.S.A. 30:4C-15.1(a) requires the Division to prove four prongs by
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 [her] resource family parents would cause
serious and enduring emotional or psychological harm
to the child;
(3) The [D]ivision 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 [judge] has considered
alternative to termination of parental rights; and
(4) Termination of parental rights will not do more
harm than good.
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See A.W., 103 N.J. at 604-11. The four prongs of the test are "not discrete
and separate" but "relate to and overlap with one another to provide a
comprehensive standard that identifies a child's best interests." K.H.O., 161 N.J.
at 348. "The considerations involved in determinations of parental fitness are
'extremely fact sensitive' and require particularized evidence that address the
specific circumstances in the given case." Ibid. (quoting In re Adoption of
Children by L.A.S., 134 N.J. 127, 139 (1993)). Adhering to these standards, the
judge concluded—relying on the credible evidence the Division produced—that
it was in the child's best interests to terminate the mother's parental rights. The
Law Guardian seeks affirmance.
A.
Regarding prong one, the mother argues the Division failed to meet its
evidentiary burden. The mother contends the judge erred in holding the Division
satisfied prong one "when [he] found that [her] marijuana use created a
substantial risk of harm to [the child]." She avers "the evidence shows that [the
Division] did not remove [the child] from [her] care due to drug use" and the
Division "never substantiated [her] for any abuse or neglect." We disagree.
The first prong of the best interests test requires the Division demonstrate
that the "child's safety, health, or development has been or will continue to be
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endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1); see
K.H.O., 161 N.J. at 352. The concern is not only with actual harm to the child
but also the risk of harm. In re Guardianship of D.M.H., 161 N.J. 365, 383
(1999) (citing A.W., 103 N.J. at 616 n.14). The focus is not on a single or
isolated event, but rather on the effect "of harms arising from the parent-child
relationship over time on the child's health and development." K.H.O., 161 N.J.
at 348. However, a judge does not need to wait "until a child is actually
irreparably impaired by parental inattention or neglect" to find child
endangerment. D.M.H., 161 N.J. at 383 (citing A.W., 103 N.J. at 616 n.14).
The Court has explained a parent's withdrawal of nurture and care for an
extended period is a harm that endangers the health of a child. Id. at 379 (citing
K.H.O., 161 N.J. at 352-54). When children "languish in foster care" without a
permanent home, their parents' "failure to provide a permanent home" may itself
constitute harm. Id. at 383 (second quotation citing N.J. Div. of Youth & Fams.
Servs. v. B.G.S., 291 N.J. Super. 582, 591-93 (App. Div. 1996)).
At the outset, defendant incorrectly argues that the Division never made a
finding of abuse or neglect. The Division is not required to pursue an abuse and
neglect finding as a condition for terminating a defendant's parental rights. N.J.
Div. of Youth & Fam. Servs. v. A.P., 408 N.J. Super. 252, 259 (App. Div. 2009).
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Similarly, the mother's argument drug use did not cause or create a risk of actual
harm to the child fails because "that is not the test." N.J. Div. of Youth & Fam.
Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001) (citing N.J.S.A.
30:4C-15.1(a)). Instead, the appropriate inquiry is "whether the child's safety,
health or development will be endangered in the future and whether the parents
are or will be able to eliminate the harm." Ibid. We note that on March 14,
2019, a Dodd removal of the child was conducted by the Division. 2
Here, the judge found that the parental relationship harmed the child by
subjecting him to "domestic violence exhibited by . . . [the mother's] impulsive
and explosive behaviors." The judge explained the mother's shocking lack of
insight as to the ramifications of violence in her life and its "relevance to
parenting" has already "put her child in harm's way." The record shows the
mother habitually denied domestic violence occurred and that she lied about her
denials, as both a victim and a perpetrator. Many of the mother's domestic
violence incidents entailed police involvement.
2
"A 'Dodd removal' refers to the emergency removal of a child from the home
without a court order, pursuant to the Dodd Act, which, as amended, is found at
N.J.S.A. 9:6-8.21 to -8.82." N.J. Div. of Youth & Fam. Servs. v. N.S., 412 N.J.
Super. 593, 609 n.2 (App. Div. 2010).
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The judge detailed multiple other examples of how the mother presented
a substantial risk of harm to the child. She missed at least eight months of drug
screen testing and when questioned about it, the mother blamed lack of
transportation despite testimony that the Division provided bus passes, and she
had access to a car. In addition, the mother repeatedly tested positive for
marijuana, was discharged from substance abuse programs, and abandoned the
child for a week. Moreover, in June 2019, the mother purportedly threatened to
burn down F.V. and E.V.'s home because F.V. was planning to have a birthday
party for the child. 3
The mother's continued volatility and substance use indicate unabated
behavior, which may cause "continuing harm by depriving the[] child[] of
necessary stability and permanency." N.J. Div. of Youth & Fam. Servs. v. T.S.,
417 N.J. Super. 228, 245 (App. Div. 2010) (citation omitted). While the mother
made some progress at times, the judge was not required to continue "protracted
efforts for reunification," N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J.
Super. 76, 111 (App. Div. 2004) (citations omitted), because "[c]hildren must
3
The record shows F.V. and E.V. obtained a temporary restraining order against
the mother and subsequently requested the child be removed from their care due
to concerns over the mother's threats. The child was later placed with another
resource parent, R.P.
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not languish indefinitely in foster care while a birth parent attempts to correct
the conditions that resulted in an out-of-home placement." N.J. Div. of Youth
& Fam. Servs. v. S.F., 392 N.J. Super. 201, 209-10 (App. Div. 2007).
As the judge noted, "after two years in multiple placements, . . . [the]
young [child] is at risk for emotional damage were permanency further delayed."
The experts who testified failed to see the mother maturing in the foreseeable
future. There is no basis for us to disturb the judge's finding that the Division
satisfied prong one by clear and convincing evidence.
B.
The second prong of the best interest determination "in many ways,
addresses considerations touched on in prong one." N.J. Div. of Youth & Fam.
Servs. v. F.M., 211 N.J. 420, 451 (2012). Evidence supporting the first prong
may also support the second prong "as part of the comprehensive basis for
determining the best interests of the child." D.M.H., 161 N.J. at 379 (citing
K.H.O., 161 N.J. at 348-49). This prong "relates to parental unfitness," K.H.O.,
161 N.J. at 352, and "the inquiry centers on whether the parent is able to remove
the danger facing the child." F.M., 211 N.J. at 451 (citing K.H.O., 161 N.J. at
352).
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The Division can satisfy this inquiry by showing the parent or parents
cannot provide a safe and stable home and that the child or children will suffer
substantially from a lack of stability and permanent placement. N.J. Div. of
Youth & Fam. Servs. v. M.M., 189 N.J. 261, 281 (2007) (citing K.H.O., 161
N.J. at 363). Because the Legislature placed "limits on the time for a birth parent
to correct conditions in anticipation of reuniting with the child[ren][,] [t]he
emphasis has shifted from protracted efforts for reunification with [the] birth
parent[s] to an expeditious, permanent placement to promote the child's well -
being." C.S., 367 N.J. Super. at 111 (citing N.J.S.A. 30:4C-11.1; D.M.H., 161
N.J. at 385; K.H.O., 161 N.J. at 357-59).
The mother asserts the judge "erroneously found that [she] did not comply
with the recommended services and denied her problems." She further contends
the judge's conclusion assumes facts and evidence not significantly supported
by the record and failed to consider facts favorable to her. We are unpersuaded.
The record clearly shows the mother was non-compliant with services both
before and after the child's removal despite the Division's efforts to stabilize the
family. Programs such as Oaks, Solstice, and SODAT repeatedly discharged the
mother for her resistance to help and refusal to participate in services. And, the
mother categorically refused to accept and address the domestic violence
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recurring in her life with professionals and Division offered services. Instead,
the mother gave excuses for each contact sheet and police report dealing with a
domestic violence issue, claiming it was inaccurate or a misunderstanding.
When analyzing the second prong, a judge must also consider the harm
the child suffers by delaying permanent placement and the potential future harm
that would arise from severing a bond with a resource parent. M.M., 189 N.J.
at 283 (citing N.J.S.A. 30:4C-15.1(a)(2)); see, e.g., N.J. Div. of Youth & Fam.
Servs. v. R.G., 217 N.J. 527, 561 (2014). While the mother made some
improvement, it was insufficient progress toward familial stability because of
her inconsistent treatment and lack of motivation.
As we have stated, "[k]eeping the child in limbo, hoping for some long
term unification plan, would be a misapplication of the law." A.G., 344 N.J.
Super. at 438 (citing In re P.S., 315 N.J. Super. 91, 121 (App. Div. 1998)). Here,
the judge concluded the mother was not likely to become a viable parent in the
foreseeable future because she is unamenable to change. Based on the evidence,
the judge found the child "is likely to suffer severe emotional harm were that
bond [with the resource parent] severed. The same is not the case for [the
mother]. The resource parent is capable of mitigating disruption to [the child]
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while [the mother] lacks that capacity." We therefore find no merit to the
mother's contentions as to prong two.
C.
The third prong requires evidence that "[t]he [D]ivision 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
[judge] has considered alternatives to termination of parental rights." N.J.S.A.
30:4C-15.1(a)(3). "Reasonable efforts may include consultation with the parent,
developing a plan for reunification, providing services essential to the
realization of the reunification plan, informing the family of the child's progress,
and facilitating visitation." M.M., 189 N.J. at 281 (internal quotation marks
omitted) (citation omitted).
The mother argues the Division failed to show by clear and convincing
evidence that it provided reasonable services with the goal toward reunification
and "simply ignored [her] request for a new therap[ist]." "[A]n evaluation of
the efforts undertaken by [the Division] to reunite a particular family must be
done on an individualized basis." D.M.H., 161 N.J. at 390 (citing L.A.S., 134
N.J. at 139). The evaluating court must also consider "the parent's active
participation in the reunification effort." Ibid. (citations omitted). In any
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situation, "[t]he services provided to meet the child's need for permanency and
the parent's right to reunification must be 'coordinated' and must have a 'realistic
potential' to succeed." N.J. Div. of Youth & Fam. Servs. v. L.J.D., 428 N.J.
Super. 451, 488 (App. Div. 2012) (quoting N.J. Div. of Youth & Fam. Servs. v.
J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002)).
This requires the Division to "encourage, foster and maintain the parent -
child bond, promote and assist visitation, inform the parent of the child's
progress in foster care and inform the parent of the appropriate measures he or
she should pursue . . . to . . . strengthen their relationship." R.G., 217 N.J. at
557 (alterations in original) (quoting D.M.H., 161 N.J. at 390). What constitutes
reasonable efforts varies with the circumstances of each case. D.M.H., 161 N.J.
at 390-91. However, the Division is not required to be successful in their efforts
to provide services, D.M.H, 161 N.J. at 393, or to provide services at all when
it is not in the children's best interests. See L.J.D., 428 N.J. Super. at 488.
In the matter under review, the judge credited the Division's efforts to
provide the mother with services and referrals for psychological and bonding
evaluations, supervised visitation with the child, substance abuse assessments
and treatment, parenting skills classes, domestic violence counseling, batterer's
intervention, and transportation. The mother claims she had "been asking for a
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new therapist for over a year" due to lack of progress with her treating therapist.
But the record reflects her therapist's concerns about continuing therapy because
of the mother's lack of commitment to progress and ignoring her therapist's
referral to a psychiatrist. We are not convinced that the Division's failure to
assign the mother a new therapist or psychiatrist was in derogation of prong
three because the mother's history is replete with evidence of her defiant and
unmotivated engagement to the reunification process. We therefore find no
merit to the mother's contentions regarding prong three.
D.
The fourth prong of N.J.S.A. 30:4C-15.1(a)(4) serves as "a 'fail safe'
inquiry guarding against an inappropriate or premature termination of parental
rights." F.M., 211 N.J. at 453 (citing N.J. Div. of Youth & Fam. Servs. v. G.L.,
191 N.J. 596, 609 (2007)).
[T]he fourth prong of the best interests standard cannot
require a showing that no harm will befall the child as
a result of the severing of biological ties. The question
to be addressed under that prong is whether, after
considering and balancing the two relationships, the
child will suffer a greater harm from the termination of
ties with her natural parents than from the permanent
disruption of her relationship with her foster parents.
[K.H.O., 161 N.J. at 355.]
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"The crux of the fourth statutory subpart is the child's need for a
permanent and stable home, along with a defined parent-child relationship."
N.J. Div. of Youth & Fam. Servs. v. H.R., 431 N.J. Super. 212, 226 (App. Div.
2013) (citing C.S., 367 N.J. Super. at 119). "If one thing is clear, it is that the
child deeply needs association with a nurturing adult. Since it seems generally
agreed that permanence in itself is an important part of that nurture, a court must
carefully weigh that aspect of the child's life." A.W., 103 N.J. at 610 (citation
omitted). Therefore, "to satisfy the fourth prong, the State should offer
testimony of a 'well qualified expert who has had full opportunity to make a
comprehensive, objective, and informed evaluation' of the child's relationship
with both the natural parents and the foster parents." M.M., 189 N.J. at 281(quoting J.C., 129 N.J. at 19).
"It has been 'suggested that [a] decision to terminate parental rights should
not simply extinguish an unsuccessful parent-child relationship without making
provision for . . . a more promising relationship . . . [in] the child's future.'" N.J.
Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 108 (2008) (quoting A.W.,
103 N.J. at 610) (alterations in original). "[C]ourts have recognized that
terminating parental rights without any compensating benefit, such as adoption,
may do great harm to a child." Id. at 109 (citing A.W., 103 N.J. at 610-11).
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The mother challenges the judge's prong four findings arguing termination
of her parental rights will do more harm than good. She contends the judge
ignored the bond and attachment she had with the child. Having thoroughly
reviewed the record under our standard of review and the applicable law, we
conclude the mother's arguments as to prong four lack merit.
The judge weighed the expert testimony presented by the Division and the
Law Guardian. Both experts had the opportunity to conduct bonding evaluations
between the mother and the child, as well as between the child and his resource
mother. The experts opined the child has a "strong" and "positive" bond with
both the mother and the resource mother; however, the experts concurred that
the child has an insecure attachment to the mother but a secure bond with his
resource mother. Moreover, the experts testified that the child's resource mother
would more than likely mitigate any harm he would endure from severing his
relationship with his mother, whereas the mother would not. The judge
emphasized the mother "cannot be trusted to control herself around [the child],
nor can she be trusted to keep him away from dangerous persons who might
cause physical or emotional harm. . . . An adoption by the resource parent is
clearly in [the child's] best interest." The record supports that finding under
prong four.
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II.
Our review of a family judge's factual findings is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). "It is not our place to second-guess or
substitute our judgment for that of the family court, provided that the record
contains substantial and credible evidence to support the decision to terminate
parental rights." F.M., 211 N.J. at 448-49 (citing E.P., 196 N.J. at 104). "We
invest the family court with broad discretion because of its specialized
knowledge and experience in matters involving parental relationships and the
best interests of children." Id. at 427. Although our scope of review is expanded
when the focus is on "'the trial judge's evaluation of the underlying facts and the
implications to be drawn therefrom,' . . . . even in those circumstances we will
accord deference unless the trial court's findings 'went so wide of the mark that
a mistake must have been made.'" M.M., 189 N.J. at 279 (first quoting In re
Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993); then
quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69
(App. Div. 1989)).
Here, the record contains substantial and credible evidence to support the
decision to terminate the mother's parental rights. The judge found the mother's
testimony was "unreliable," "argumentative," and that she was evasive and
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contradictory. He concluded that the mother could not "provide an environment
for [the child] where he would not be at risk." The mother's instability and
violent tendencies made her a "ticking time bomb," and a grave threat to the
child. We have no reason to second guess those or any other findings.
We are aware that on July 2, 2021, the Legislature enacted L. 2021 c. 154,
amending N.J.S.A. 30:4C-15.1(a) pertaining to the standards for terminating
parental rights. Specifically, the Legislature amended N.J.S.A. 30:4C-
15.1(a)(2), to exclude from consideration the harm to a child caused from being
removed from resource parents as a factor in a termination of parental rights
case. N.J.S.A. 30:4C-15.1(a) now reads as follows:
(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;
(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.
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We are satisfied the Division has proven all four prongs of the best interests
standard under both the old and amended version of N.J.S.A. 30:4C-15.1(a).
To the extent we have not addressed any other argument, we conclude that
they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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