DCPP VS. D.C. AND C.A.R., IN THE MATTER OF THE GUARDIANSHIP OF C.E.R. (FG-13-0056-19, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-2656-19T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
D.C.,
Defendant-Appellant,
and
C.A.R.,
Defendant.
__________________________
IN THE MATTER OF THE
GUARDIANSHIP OF C.E.R.,
a minor.
__________________________
Argued November 30, 2020 – Decided January 14, 2021
Before Judges Fasciale and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FG-13-0056-19.
Beatrix W. Shear, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Beatrix W. Shear, on the briefs).
Jane C. Shuster, Assistant Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jane C. Shuster, of counsel; Mary L.
Harpster, Deputy Attorney General, on the brief).
Meredith Alexis Pollock, Deputy Public Defender,
argued the cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Meredith Alexis
Pollock, of counsel; Margo Hirsch, Designated
Counsel, on the brief).
PER CURIAM
Defendant D.C. (the mother) appeals from a January 28, 2020 order
terminating her parental rights to her son C.E.R. (the child), who was born in
2012.1 The mother has a substance abuse problem and a history of
homelessness. She was living with her son in a car when the Division of Child
Protection and Permanency (the Division) removed the child. The mother also
has a criminal record, including a conviction for child endangerment.
Throughout this litigation she has demonstrated little to no interest in reunifying
1
The order also terminates the parental rights of the father, C.A.R. He is not a
party to this appeal.
A-2656-19T1
2
with her son, having repeatedly failed to take advantage of offered services and
visitation opportunities. Meanwhile, Division workers consistently reported
that the child adapted well and appeared to be thriving and bonding with his
resource family, who wish to adopt as opposed to pursuing kinship legal
guardianship. The child advanced developmentally in the resource home, with
marked improvements to his previously limited vocabulary and motor skills.
Judge Honora O'Brien-Kilgallen presided over the guardianship trial, entered
judgment, and rendered a thorough and detailed oral opinion. We affirm
substantially for the reasons stated by Judge O'Brien-Kilgallen on the record.
On appeal, the mother argues:
POINT I
THE TRIAL COURT'S BLANKET DECISION
OVERRULING ALL OF THE EMBEDDED
HEARSAY/RELEVANCE OBJECTIONS MADE BY
D.C.'S ATTORNEY, MR. FRAIDSTERN, WAS AN
ERROR THAT MANDATES REMAND
POINT II
THE TRIAL COURT ERRED BY ALLOWING
[DIVISION] WORKER GREGORIO TO TESTIFY
WITHOUT PERSONAL KNOWLEDGE
POINT III
THE GUARDIANSHIP DECISION IN THIS CASE
SHOULD BE REVERSED BECAUSE DCPP FAILED
TO PROVE PRONGS ONE, THREE, AND FOUR OF
A-2656-19T1
3
THE N.J.S.A. 30:4C-15.1(a) TEST FOR
TERMINATION OF PARENTAL RIGHTS BY
CLEAR AND CONVINCING EVIDENCE
A. DCPP DID NOT PROVE N.J.S.A. 30:4C-
15.1(a)(1), BECAUSE IT DID NOT PROVE BY
CLEAR AND CONVINCING EVIDENCE
THAT [MOTHER] HARMED [C.E.R.] OR
THAT [C.E.R.'S] CONTINUED
RELATIONSHIP WITH [MOTHER] WOULD
ENDANGER HIS SAFETY, HEALTH, OR
DEVELOPMENT
B. DCPP DID NOT PROVE THE REASONABLE
EFFORTS REQUIREMENT OF N.J.S.A. 30:4C-
15.1(a)(3) BY CLEAR AND CONVINCING
EVIDENCE
C. DCPP DID NOT PROVE N.J.S.A. 30:4C-
15.1(a)(4), THAT TERMINATION WOULD
NOT DO MORE HARM THAN GOOD, BY
CLEAR AND CONVINCING EVIDENCE
POINT IV
THE GUARDIANSHIP ORDER IN THIS CASE
SHOULD BE REVERSED BECAUSE DCPP
IMPROPERLY RUSHED TO FACILITATE
ADOPTION OF [C.E.R.] BY MS. AND MRS. W
I.
We begin by addressing the mother's contention that the Division
inappropriately expedited the guardianship process and rushed to facilitate the
child's adoption at the expense of reunification efforts. To provide context for
A-2656-19T1
4
her claim that the Division sought termination of her parental rights prematurely,
we briefly recount the sequence of events leading to the guardianship trial.
On September 4, 2018, police were called to conduct a welfare check after
receiving information about a family living in a car parked at a local
QuickChek.2 Police found the then-six-year-old child living in the car with his
parents. The mother reportedly had heroin in her hands, and both parents
admitted to being active drug users. The parents were arrested for child
endangerment and possession of heroin, marijuana, and drug paraphernalia. At
the police station, the mother was introduced to Division workers who expressed
concern for the child's safety and well-being. The workers explained the
emergency removal process and instructed the mother to apply for a public
defender. They also discussed the Division's policies regarding visitation and
reunification. The mother asked to remain informed as to her son's whereabouts.
The workers emphasized that it was the mother's responsibility to maintain
communication with the Division if she wanted to pursue reunification with her
son.
2
This was not the family's first interaction with the Division. The Division had
previously received referrals from Child Welfare Services, but they were not
substantiated.
A-2656-19T1
5
On September 6, 2018, Judge Teresa Kondrup Coyle granted an order to
show cause for temporary custody. Judge Coyle further ordered that:
The Court upholds the emergent removal of the child
[C.E.R.]. [C.E.R.] shall remain in the legal and
physical custody of the Division.
The mother shall submit to a substance abuse
evaluation and comply with any treatment
recommendations.
The father shall submit to a substance abuse evaluation
and comply with any treatment recommendations.
The parents shall sign releases for all current and
former treating physicians, hospitals, and treatment
programs.
The parents shall have weekly visitation with [the
child], supervised by the Division or a Division-
approved supervisor.
The parents shall notify the Division when they are
released from [Monmouth County Correctional
Institution] and keep the Division updated on the status
of their criminal case.
Judge Terence P. Flynn presided over the order to show cause hearing on
October 5, 2018. Neither parent attended. Judge Flynn ordered that the child
remain in the custody of the Division. In December 2018, the child was placed
in a new resource home with the mother's cousin and his wife.
A-2656-19T1
6
Judge Flynn convened a fact-finding hearing in February 2019. As would
become her standard practice throughout this litigation, the mother did not
attend the court proceeding. Judge Flynn determined by a preponderance of
evidence that both parents abused or neglected the child by failing to provide
shelter and by possessing illicit drugs and paraphernalia in the presence of the
child. The mother was ordered to complete substance abuse evaluations and to
comply with the Division's recommendations.
The mother failed to maintain contact with the Division. On February 8,
2019, case worker Meghan Clemente happened to see the mother while
investigating another matter. Ms. Clemente used this chance meeting as an
opportunity to explain the seriousness of the mother's failure to contact the
Division. As Ms. Clemente reported,
[D]ue to the length of time there has been no contact,
worker would recommend that visits start as
therapeutic[;] however[,] she had to contact the
Division. Worker informed her that worker was aware
of her concerns regarding her [bench] warrant [for
failure to appear at a hearing on her criminal matter]
and promised that DCPP did not try and trick people by
making them come to the office and then having them
picked up. Worker explained to her that it was very
possible that [the child's] case goal would be changed
to adoption should she still choose to not be in contact
with the Division.
A-2656-19T1
7
Eleven days after her discussion with Ms. Clemente, the mother finally
contacted the Division to arrange for a meeting with the case worker. Although
the Division scheduled a substance abuse evaluation for the mother, she did not
appear at the evaluation and subsequently failed to remain in contact with the
Division. The Division conducted an active search for both parents, which
proved unsuccessful.
As the mother's whereabouts remained unknown and because she made no
attempts to visit her child, the Division opted to pursue termination of parental
rights followed by adoption. On May 6, 2019, Judge Flynn convened a
permanency hearing and approved the Division's goal.
Once the decision was made to pursue termination of parental rights, an
adoption case worker, Jennifer Gregorio, was assigned to the case. Ms. Gregorio
continued the Division's efforts to locate the mother, finally meeting with the
mother at a mall food court in June 2019. The appointment was scheduled, as
opposed to previous Division worker Ms. Clemente's encounter. Ms. Gregorio
introduced herself and explained why the case had been assigned to the adoption
unit. During their conversation, Ms. Gregorio offered to arrange another
substance abuse evaluation and to expedite intake for a treatment program, but
the mother declined. Additionally, Ms. Gregorio scheduled psychological and
A-2656-19T1
8
bonding evaluations with Dr. Lori Lessin. As per her usual practice, the mother
failed to attend the evaluations.
Judge O'Brien-Kilgallen convened the guardianship trial over three non-
consecutive days in late December 2019 and late January 2020. The mother did
not attend any portion of the trial.
We consider these events in light of the applicable legal principles. The
court is required to hold a permanency hearing to determine a child's
permanency placement no later than twelve months after a child enters foster
care. N.J.S.A. 9:6-8.54(b)(2); N.J.S.A. 30:4C-61.2(a); N.J. Div. of Youth &
Family Servs. v. A.R.G., 361 N.J. Super. 46, 65 (App. Div. 2003). The
permanency hearing functions to determine if reunification is an appropriate
goal or whether an alternative goal is required. N.J. Div. of Youth & Family
Servs. v. G.M., 198 N.J. 382, 400 (2009). Permanency is deemed to be better
than protracted efforts for reunification. N.J. Div. of Youth & Family Servs. v.
C.S., 367 N.J. Super. 76, 112 (App. Div. 2004). As we noted in N.J. Div. of
Youth & Family Servs. v. A.G., "[k]eeping the child in limbo, hoping for some
long term unification plan, would be a misapplication of the law." 344 N.J.
Super. 418, 438 (App. Div. 2001).
A-2656-19T1
9
In this instance, the permanency hearing held on May 6, 2019 occurred
less than twelve months after the guardianship complaint was filed but fifteen
months after the emergency removal. The Division's decision to shift the goal
from reunification to adoption, moreover, was carefully reviewed and approved
by the trial judge at the permanency hearing.
The timing of the permanency hearing complies with N.J.S.A. 9:6-
8.54(b)(2) and 30:4C-61.2(a). These statutes provide that the court shall hold
the permanency hearing "no later than 30 days after placement in cases in which
the court has determined that reasonable efforts to reunify the child are not
required[,]" or, if the court determined that reunification efforts are required,
"no later than 12 months after placement[.]" N.J.S.A. 9:6-8.54(b)(2). The
record shows, moreover, that the mother had notice of the hearing and that Ms.
Clemente informed her of the Division's new goal during their February 7, 2019
scheduled meeting at the mall food court.
In these circumstances, we believe the Division did not act with undue
haste in reaching its decision that termination of parental rights and adoption
would best serve the child's needs. That decision was made only after the mother
demonstrated that she was not prepared to take the steps needed for
reunification. As we explain further in Section III(C), infra, we agree with Judge
A-2656-19T1
10
O'Brien-Kilgallen's conclusion that "permanency should not be delayed because
of [the mother's] lack of involvement."
II.
We next address the mother's contention that the trial judge improperly
admitted hearsay evidence by allowing Ms. Gregorio to testify to the content of
reports and records prepared by other Division workers involved in the case.
The mother also argues the judge improperly issued a "blanket" decision
overruling her series of hearsay and relevance objections with regard to Ms.
Gregorio's testimony. We disagree. Because we affirm for the reasons
explained in the judge's thoughtful evidentiary ruling, we need not re-address
the mother's hearsay arguments at length. We add only the following remarks.
A trial court's evidentiary decisions are reviewed under the abuse of
discretion standard. N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J.
354, 366 (2017). This includes hearsay rulings. Ibid. See also Carmona v.
Resorts Int'l Hotel, Inc., 189 N.J. 354, 379 (2007). The danger of hearsay,
moreover, is mitigated in a bench trial. See N.J. Div. of Child Prot. &
Permanency v. J.D., 447 N.J. Super. 337, 349 (App. Div. 2016).
Rule 5:12-4(d) permits the Division to "submit into evidence, pursuant to
N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional
A-2656-19T1
11
consultants. Conclusions drawn from the facts stated therein shall be treated as
prima facie evidence, subject to rebuttal." The Division's reports, moreover, fall
under the business records exception found in N.J.R.E. 803(c)(6). This
exception provides for "[a] statement contained in a writing or other record of
acts, events, conditions . . . made at or near the time of observation by a person
with actual knowledge or from information supplied by such person" that is
written or recorded "in the regular course of business[,]" and if it is "the regular
practice of that business to make [a] writing or other record." N.J.R.E.
803(c)(6). See also N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.
328, 347 (2010).
We believe that Judge O'Brien-Kilgallen did not abuse her discretion in
ruling that the reports prepared by various case workers were admissible unde r
the business record exception. The judge was mindful, moreover, of the need to
differentiate embedded hearsay, that is, out-of-court statements made by others
memorialized in the case worker reports. Judge O'Brien-Kilgallen explained
that she would not allow inadmissible hearsay statements to be swept into
evidence because such statements are surrounded by permissible business
records text. The judge further noted that "[hearsay] statements made by others
are inevitably going to be intertwined with the Division's records, as they are
A-2656-19T1
12
relevant in how the Division carries out their statutory duties." Accordingly,
Judge O'Brien-Kilgallen announced that when considering Ms. Gregorio's
testimony and the reports and records she discussed, the judge would distinguish
between embedded out-of-court statements offered for their truth—which is
inadmissible hearsay—and those offered, for example, to explain why the
Division was motivated to act. See Carmona, 189 N.J. at 376 (holding that a
report that shows the motivation behind an action is admissible as to the action,
even if not admitted for the truth of matters asserted in the document). The
judge thus made clear that she would not consider embedded hearsay unless it
was an admission against interest made by a parent.
In view of these explicit assurances, we are satisfied that the judge did not
rely on inadmissible hearsay statements as substantive evidence. We note that
the mother points to no factual finding that was supported by inadmissible
embedded hearsay. On the contrary, Judge O'Brien-Kilgallen made factual
findings and further identified competent evidence supporting those findings in
her detailed oral ruling.
We likewise reject the mother's related contention that the trial judge
abused her discretion by allowing Ms. Gregorio to testify as to matters of which
she had no personal knowledge. The mother claims that the witness, under the
A-2656-19T1
13
guise of refreshed recollection, merely recited information gleaned from the
reports and records prepared by other Division case workers. This contention
does not warrant extensive discussion. It is well-established that "under both
the New Jersey and federal rules of evidence, the foundation witness generally
is not required to have personal knowledge of the facts contained in the record."
Hahnemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11, 17–18 (1996). In In
re Guardianship of Cope, moreover, we recognized that Division case worker
reports "supply a reasonably high degree of reliability as to the accuracy of t he
facts contained therein." 106 N.J. Super. 336, 343–44 (App. Div. 1969). We
acknowledged the practical aspects of a guardianship trial, noting,
we are dealing here with a statutory scheme established
to provide a means by which the Bureau [predecessor
to the Division] or other petitioner may obtain
guardianship of children in the Bureau's custody. As
the Bureau and the court below both properly indicate,
a rule requiring all Bureau personnel having contact
with a particular case to give live testimony on all the
matters within their personal knowledge would cause
an intolerable disruption in the operation of the Bureau.
[Id. at 343.]
In view of this long-established practice in guardianship trials, we reject
the mother's argument that Ms. Gregorio's foundation testimony was improper.
The alternative would have been to require the other Division employees who
A-2656-19T1
14
worked on the case to testify, which would have imposed an "intolerable
disruption" in the Division's operation. Ibid. In Cope, we further recognized
that "[i]n a situation such as this it is of great importance that the evidence upon
which judgment is based be as reliable as the circumstances permit and that the
answering parent be given the fullest possible opportunity to test the reliability
of the petitioner's essential evidence by cross-examination." Ibid. In this
instance, Ms. Gregorio's testimony relating to information contained in the
reports prepared by other Division workers provided an additional layer of
protection by affording the mother's counsel the opportunity to cross-examine
Ms. Gregorio with respect to her notes and the Division reports and records. 3
III.
We next address the mother's contention that the Division failed to satisfy
its burden of proof at the guardianship trial. Specifically, she contends that the
Division failed to prove three of the four prongs of the best-interests-of-the-
3
The mother also contends that Ms. Gregorio's testimony violates the best
evidence rule set forth in N.J.R.E. 1002. That argument lacks sufficient merit
to warrant discussion, R. 2:11-3(e)(1)(E), as N.J.R.E. 1002 applies to writings
or photographs, not testimony.
A-2656-19T1
15
child test codified in N.J.S.A. 30:40-15.1(a).4 We disagree. We begin our
analysis by acknowledging certain foundational principles. There exists a well-
settled legal framework regarding the termination of parental rights. A parent
has a constitutional right to raise his or her biological child, which "is among
the most fundamental of all rights." N.J. Div. of Youth & Family Servs. v. F.M.,
211 N.J. 420, 447 (2012) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196
N.J. 88, 102 (2008)); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999).
However, that right is not absolute. N.J. Div. of Youth & Family Servs. v. R.G.,
217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family 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. G.M., 198 N.J. at 397; In re Guardianship of
J.C., 129 N.J. 1, 10 (1992).
To effectuate these concerns, the Legislature created a test to determine
when it is in the child's best interest to terminate parental rights. Specifically,
N.J.S.A. 30:4C-15.1(a) requires the Division to prove four prongs by clear and
convincing evidence:
4
The mother acknowledges that the Division proved the second prong of the
statutory test, N.J.S.A. 30:4C-15.1(a)(2), by clear and convincing evidence.
That prong requires proof that the parent 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.
A-2656-19T1
16
(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 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.
See also A.W., 103 N.J. at 604–11. The four prongs of the test are "not discrete
and separate," but rather "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 addresses the
specific circumstances in the given case." Ibid. (quoting In re Adoption of
Children by L.A.S., 134 N.J. 127, 139 (1993)). The trial court must consider
"not only whether the parent is fit, but also whether he or she can become fit
within time to assume the parental role necessary to meet the child's needs."
A-2656-19T1
17
N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div.
2006) (citing J.C., 129 N.J. at 10). When applying the best-interests test,
moreover, a trial court must pay careful attention to a child's need for
permanency and stability without undue delay. In re Guardianship of D.M.H.,
161 N.J. 365, 385–86 (1999).
Our review of a family judge's factual findings in a guardianship trial is
limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Findings by a
Family Part judge are "binding on appeal when supported by adequate,
substantial, and credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998)
(citing Rova Farms Resort, Inc. v. Inv’rs Ins. Co., 65 N.J. 474, 484 (1974)). We
may reverse a factual finding only if there is "'a denial of justice' because the
family court's 'conclusions are [] "clearly mistaken" or "wide of the mark."'"
Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010) (alteration in original)
(quoting E.P., 196 N.J. at 104). Accordingly, an appellate court should not
disturb the trial court’s factfinding unless we are "convinced that they are so
manifestly unsupported by or inconsistent with the competent, relevant, and
reasonably credible evidence as to offend the interests of justice." Cesare, 154
N.J. at 412 (quoting Rova Farms, 65 N.J. at 484). "[T]he conclusions that
A-2656-19T1
18
logically flow from those findings of fact are, likewise, entitled to deferential
consideration upon appellate review." R.L., 388 N.J. Super. at 89.
After carefully reviewing the record in light of the applicable legal
principles, we conclude that the Division proved all four prongs by clear and
convincing evidence. We do so substantially for the reasons given by Judge
O'Brien-Kilgallen in her thorough oral opinion. We add the following remarks
with respect to each of the three prongs that the mother challenges on appeal.
A.
The mother argues that Judge O'Brien-Kilgallen erred in finding that the
child was physically, emotionally, or psychologically harmed by her behavior.
Under the first prong of the best-interests test, the trial court examines the effect
of the harm that stems from the parent-child relationship over time. N.J. Div.
of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004). The court may
consider both physical and psychological harm and, therefore, may base its
termination decision on emotional injury in the absence of physical harm. See
In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977) ("The
absence of physical abuse or neglect is not conclusive on the issue of custody.
The trial court must consider the potential for serious psychological damage to
the child inferential from the proofs."). Furthermore, "[a] parent's withdrawal
A-2656-19T1
19
of . . . solicitude, nurture, and care for an extended period of time is in itself a
harm that endangers the health and development of the child." D.M.H., 161 N.J.
at 379 (citing K.H.O., 161 N.J. at 352–54). Stated differently, "[s]erious and
lasting emotional or psychological harm to children as the result of the action or
inaction of their biological parents can constitute injury sufficient to authorize
the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32,
44 (1992) (emphasis added) (citing J.C., 129 N.J. at 18).
In this instance, Judge O'Brien-Kilgallen found, based on credible
evidence including expert testimony, that "[the child's] relationship with his
parents caused him physical harm, stunted his development, and caused lasting
emotion harm which would likely continue if the parental relationship was not
terminated." In reaching this conclusion, the judge accounted for a number of
salient circumstances that were proved by the Division. Notably, the family
lived in a vehicle and the child was not enrolled in school. It also bears emphasis
that the mother was convicted of child endangerment. In view of her guilty plea,
she is hard-pressed to argue on appeal that the child was not harmed by her
behavior.
A-2656-19T1
20
B.
We likewise reject the mother's argument that Judge O'Brien-Kilgallen
erred in finding that the Division had proved the third prong of the best -interest
test by clear and convincing evidence. Under this prong, the trial court must
decide if the Division made reasonable efforts to reunify the family. K.H.O.,
161 N.J. at 354 (citing N.J.S.A. 30:4C-15.1(a)(3)). Pursuant to the statute,
"reasonable efforts" are defined as:
(1) consultation and cooperation with the parent in
developing a plan for appropriate services;
(2) providing services that have been agreed upon, to
the family, in order to further the goal of family
reunification;
(3) informing the parent at appropriate intervals of the
child's progress, development, and health; and
(4) facilitating appropriate visitation.
[N.J.S.A. 30:4C-15.1(c).]
We have previously recognized that reasonable efforts "vary depending
upon the circumstances of the removal." N.J. Div. of Youth & Family Servs. v.
F.H., 389 N.J. Super. 576, 620 (App. Div. 2007) (citing A.G., 344 N.J. Super.
at 437). The Division's success regarding this prong is not measured by the
parent's participation in the necessary services. D.M.H., 161 N.J. at 393.
A-2656-19T1
21
"[E]ven [the Division's] best efforts may not be sufficient to salvage a parental
relationship." F.M., 211 N.J. at 452. Pursuant to statute, the Division must: (1)
work with parents to develop a plan for services; (2) provide the necessary
services; (3) facilitate visitation; and (4) notify parents of the children's progress
during an out-of-home placement. N.J.S.A. 30:4C-15.1(c).
In this case, the record amply supports the trial judge's determination that
the Division made reasonable efforts to help the mother correct her parental
deficiencies and that the Division pursued alternatives to termination. The
mother's evasiveness, however, effectively thwarted the Division's reunification
efforts. The Division worked indefatigably to contact the mother, using old
phone numbers, mailing letters, reaching out to her family members, and even
using Facebook. Further, the Division repeatedly advised the mother that it was
her responsibility to remain in contact with the Division. We are satisfied that
the lack of interaction with the Division is attributable entirely to the mother and
despite reasonable efforts by the Division to maintain contact.
Furthermore, the mother was afforded numerous opportunities to pursue
treatment for her substance abuse, which she declined. 5 She did not attend the
5
The mother entered a detox program in late December 2018 to prepare for a
fourteen to twenty-eight-day inpatient treatment program. She began the
A-2656-19T1
22
bonding evaluation that was twice rescheduled for her benefit. She did not
appear at any court hearings despite the Division's persistent efforts to inform
her of upcoming and ongoing proceedings.
In sum, the fact that reunification failed in this case by no means suggests
that the Division did not make reasonable efforts to achieve that goal. As Judge
O'Brien-Kilgallin aptly noted in her oral decision, "[t]he parents, whether they
are unable to follow through with services or unwilling to do so, have abandoned
any efforts to become fit parents, and permanency should not be delayed because
of their lack of involvement." In short, the mother, not the Division, is
responsible for the failure to achieve reunification.
C.
Finally, we address the mother's contention that the Division failed to
prove the fourth prong of the best-interests test, which requires that the Division
demonstrate 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). When
conducting its analysis under this prong, a trial court may rely on expert
testimony when balancing the potential injury that a child could experience
inpatient program on January 1, 2019 but left on January 7, 2019, contrary to
medical advice.
A-2656-19T1
23
through the termination of parental rights against the harm the child might suffer
if removed from the resource placement. K.H.O., 161 N.J. at 355, 363.
Termination of parental rights is necessary when it permits a child to have a
secure and permanent home. N.J. Div. of Youth & Family Servs. v. B.G.S., 291
N.J. Super. 582, 592–95 (App. Div. 1996). Relatedly, a child should not
"languish indefinitely" in an out-of-home placement while a parent tries to
correct his or her parenting difficulties. N.J. Div. of Youth & Family Servs. v.
S.F., 392 N.J. Super. 201, 209 (App. Div. 2007) (citing N.J. Div. of Youth &
C.S., 367 N.J. Super. at 111). In K.H.O., the Supreme Court affirmed the trial
court's decision to terminate parental rights, holding that "where it is shown that
the bond with foster parents is strong and, in comparison, the bond with the
natural parent is not as strong, that evidence will satisfy the [fourth prong of the
best-interests test]." 161 N.J. at 363.
Furthermore, in evaluating evidence under the fourth prong, the child's
need for permanency continues to be an important consideration. N.J. Div. of
Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007). "[I]f one thing is
clear, it is that [a] child deeply needs association with a nurturing adult. Since
it seems generally agreed that permanence in itself is an important part of
A-2656-19T1
24
nurture, a court must carefully weigh that aspect of a child's life." A.W., 103
N.J. at 610.
In this instance, Judge O'Brien-Kilgallen placed appropriate emphasis on
the need to afford the child a sense of permanency. In reaching her conclusion,
the judge relied on credible expert testimony from the Division's expert, Dr.
Lessin, who recommended that the child remain with his resource family
because they had developed a loving, bonded relationship. 6
Furthermore, the child expressed his desire to stay with his resource
family permanently. The mother contends on appeal that the Division "unfairly
swayed" the child to express a desire to be adopted by his resource family. We
find no support in the record for this assertion. The fact that the child told
Division workers that he wants to see his mother does not suggest that the
6
The resource parents testified at the guardianship trial and expressed their
preference for adoption rather than kinship legal guardianship (KLG). One
resource parent explained:
Well, why do I want to adopt him, is cause we love him.
He is part of our household. He – why I want adoption
over K.L.G. is, because he's seven years old, he – he
needs to know he has a permanent home [and] that he
will never have to go back to a situation that he was in
prior to this.
A-2656-19T1
25
Division convinced him to express his desire for adoption. Defendant also
asserts that "[o]nce [the mother's] rights to [the child] are terminated, [she] will
become a legal stranger to her son with no right to post termination visitation."
The record belies this assertion. The resource parents testified that they would
consider therapeutic visits so long as the mother is sober. We agree with the
Division that requiring sobriety as a condition of post-termination visits is
reasonable and appropriate, consistent with Dr. Lessin's expert recommendation.
In sum, we conclude that the mother has repeatedly demonstrated that she
is unfit as a parent and is unable or unwilling to make the lifestyle changes
necessary to provide a safe and stable environment for her son. As we noted in
A.G., "[k]eeping [a] child in limbo, hoping for some long-term unification plan,
would be a misapplication of the law." 344 N.J. Super. at 438. Termination of
the mother's parental rights was therefore appropriate and necessary to afford
the child a permanent home in which he will be safe, loved, and cared for.
To the extent we have not addressed them, any remaining arguments
raised by defendant lack sufficient merit to warrant discussion. R. 2:11-
3(e)(1)(E).
Affirmed.
A-2656-19T1
26