DCPP VS. T.T. AND M.T., IN THE MATTER OF THE GUARDIANSHIP OF H.T. (FG-19-0023-17, SUSSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) ( 2020 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-5191-17T4
A-5192-17T41
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
T.T. and M.T.,
Defendants-Appellants.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF H.T.,
a Minor.
_________________________
Submitted March 12, 2020 – Decided May 4, 2020
Before Judges Suter and DeAlmeida.
1
The cases were consolidated on appeal in order to share transcripts and to
permit a single responding brief.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FG-19-0023-17.
Joseph E. Krakora, Public Defender, attorney for
appellant T.T. (Robyn A. Veasey, Deputy Public
Defender, of counsel; Lora B. Glick, Designated
Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant M.T. (Robyn A. Veasey, Deputy Public
Defender, of counsel; Daniel Anthony Di Lella,
Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae, Assistant Attorney General, of
counsel; Peter Damian Alvino, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Lisa Marie Black, Designated
Counsel, on the brief).
PER CURIAM
Defendants T.T. 2 (Tanya) and M.T. (Malcolm) appeal the judgment of
guardianship terminating their parental rights to H.T. (Hope) under N.J.S.A.
30:4C-12. They contend the Division of Child Protection and Permanency
(Division) did not prove by clear and convincing evidence that their parental
rights should be terminated. We affirm.
2
We use fictitious names to protect the confidentiality of the family members
and child. R. 1:38-3(d)(12).
A-5191-17T4
2
I.
Tanya and Malcolm are the biological parents of Hope, who was born in
December 2008. Tanya has two other children, K.C. and S.C., with another
father. K.C. was placed in the care of her father and S.C. was placed in resource
and institutional homes. Both children now are adults.
This appeal is from a judgment of guardianship entered after a bench trial
terminating Tanya and Malcolm's parental rights to Hope. At trial, the
caseworker supervisor testified about the Division's involvement with Tanya
and the services provided to both parents relative to their parenting of Hope. Dr.
Janet Cahill testified about Tanya's psychological issues and the harm she
continued to cause Hope as well as Malcolm's inability to intercede to protect
Hope. Tanya and Malcolm testified in opposition to termination of their parental
rights. The trial court's judgment terminating parental rights was supported by
substantial credible evidence and satisfied each prong of the statutory test with
clear and convincing evidence.
The facts are adduced from the evidence admitted at the termination of
parental rights trial. In 2000, the Audrey Hepburn Children's House Diagnostic
Center (AHCH) diagnosed Tanya's conduct as "consistent with components that
define[]" Factitious Disorder Imposed on Another (FDIA), formerly known as
A-5191-17T4
3
Munchausen Syndrome by Proxy. A parent with FDIA, fabricates his or her
child's "symptoms and/or induction of signs of disease, leading to unnecessary
investigations and interventions, with occasional serious health consequences,
including death of the child." Stedman's Medical Dictionary 1906 (28th ed.
2005). Tanya's diagnosis was based on how she treated her son, S.C. as a child.
She complained he suffered from a host of ailments including Tourette's
syndrome, auditory processing impairments, incontinence, seizures, bipolar
disorder, depression, obsessive-compulsive disorder (OCD), Asperger's
syndrome, oppositional defiant disorder (ODD), back and leg pain, and attention
deficit hyperactivity disorder (ADHD). The AHCH recommended "intense
individual psychotherapy" for Tanya but it is not clear if she obtained treatment.
When Hope was born in 2008, medical at the hospital were concerned with
Tanya's mental health and contacted the Division. Over the next few years, the
Division investigated a number of referrals3 and provided services for Tanya and
Malcolm.
In March 2015, Tanya called the Division complaining she could not "take
her daughter anymore." The Division's investigation revealed that since May
3
From 1992 to 2015, there were seventy-two referrals made about the family
including allegations involving physical abuse, domestic violence, parental
mental illness and homelessness.
A-5191-17T4
4
2014, Malcolm was living in the family's van in the driveway because Tanya
said he had been verbally aggressive and had squeezed Hope's arm—a fact he
did not deny. The Division re-opened its case to provide services.
In May 2015, when Hope was six years old, Tanya and Malcolm did not
meet Hope at the bus stop and could not be located. Her school contacted the
police, which contacted the Division. Hope was placed in a resource home
pursuant to a Dodd 4 emergency removal order after she said she did not have
any family or friends who could take care of her. Later that night, Tanya and
Malcolm arrived at the police station, explaining they had been looking for an
apartment, became lost and ran out of gas, twice. They had not called or asked
anyone to take care of Hope.
The Division filed an order to show cause and verified complaint under
N.J.S.A. 9:6-8.21 seeking custody, care and supervision of Hope. Following a
hearing on the emergency removal, the trial court returned custody to Tanya and
Malcolm, but ordered them to submit to psychiatric and psychological
evaluations. They were to participate in short-term family preservation services.
Hope's school records showed she was absent a total of eighty-one days
in kindergarten; most of the absences were unexcused. Hope's pediatrician had
4
See N.J.S.A. 9:6-8.29.
A-5191-17T4
5
diagnosed her with ADHD and ODD, but she had not been evaluated by a
neurologist. Throughout visits in 2015, Tanya asserted to caseworkers that
Hope was physically ill; she disparaged Malcolm, referring to him as a
"monster" and that she did not want him around Hope. She mentioned that
another child was "still with them" even though that child had been stillborn.
Division caseworkers had difficulty contacting the family and left several
messages at the residence. When contact was made, Tanya was verbally hostile
to the caseworker.
Janet Cahill, Ph.D., issued a preliminary parenting capacity evaluation on
August 7, 2015, finding that Tanya satisfied the criteria for FDIA. Many of the
reasons Hope had missed school were based on symptoms only Tanya
reported—such as fevers, diarrhea, vomiting and headaches. Dr. Cahill
recommended a separation test where Hope would be separated from both
parents for a six to eight-week period in order to see if the child's symptoms
persisted without the caregiver. Dr. Cahill recommended against any visitation
with Hope by Tanya and Malcolm.
Hope was removed in August 2015, for the separation test and placed in
custody of the Division and in a resource home. Parental visitation was
suspended. Dr. Cahill issued a final report in October 2015 recommending that
A-5191-17T4
6
Hope remain in the resource home without any contact by Tanya because of her
exaggerations of Hope's problems and behaviors. She recommended Tanya see
a therapist specializing in FDIA.
In November 2015, the trial court ordered Tanya to attend therapy to
address issues identified by Dr. Cahill in her report, ordered a neurology
examination for Hope to follow up on ODD and ADHD diagnoses, and ordered
weekly therapeutic supervised visitation for Malcolm with Hope. Tanya’s
visitation continued to be suspended.
Tanya and Malcolm were evicted in December 2015. Tanya refused to
give the Division an address, advising they were "here and there." Tanya
reported that she and Malcolm were no longer a couple.
Malcolm was allowed supervised therapeutic visitation with Hope, but
wanted the visits to include Tanya. However, Tanya was ordered to engage in
therapy before she could be considered for visitation, and she had not done so.
The Division asked Tanya for the names of relatives with whom Hope
could be placed, but Tanya she did not want Hope to live with her grandmother
and "would have to give it some thought." Although asked to provide names for
the next meeting, she never did so.
A-5191-17T4
7
In January 2016, Hope was displaying some negative behaviors at the
resource home and in school. Dr. Cahill testified this was not validation of
Tanya's claims about the child, but was behavior she had seen previously when
permanency was not resolved. The Division implemented therapy and
mentoring for Hope.
Because Malcolm had limited English language skills, the Division
arranged counseling for him with an Arabic-speaking therapist. That therapist
concluded Malcolm "lacked insight into [Tanya's] mental health difficulties"
and would have difficulty gaining insight about that issue. "[T]he prognosis for
change [was] poor[.]"
By May 2016, Tanya reported she and Malcolm were a couple again.
Tanya began therapy with Jessica Platt, Ph.D., for FDIA, although she denied
suffering from it. She attended three sessions and stopped because it was a
"waste [of] her time."
In June 2016, Tanya again advised the Division she did not have contact
with her family and "knew they would not care for [Hope] for her." By this
time, Hope was in a new resource home with parents interested in adopting her.
A-5191-17T4
8
The trial court approved the Division's permanency goal of termination of
parental rights. It also approved a concurrent goal of reunification with Malcolm
only.
Malcolm began therapeutic supervised visitation with Hope in September
2016, but it was suspended after a few weeks because Hope was showing
behavioral problems at home and in school. Against the court order that
prohibited contact between Tanya and Hope, Malcolm had brought notes and
gifts from Tanya to his visits with Hope. Hope's behavior improved after the
visitation was stopped.
In September 2016, the Division filed a complaint to terminate Tanya's
and Malcolm's parental rights to Hope under N.J.S.A. 30:4C-15.5 Tanya also
resumed therapy with Dr. Platt in September 2016, but by January 2017, the
doctor reported Tanya showed "no insight and continued denial regarding
FDIA."
5
In November 2016, the trial court entered an order, following a hearing, that
Hope was abused and neglected by Tanya under N.J.S.A. 9:6-8.21 (Title Nine)
based on the number of Hope's excused absences from kindergarten. However,
Malcolm was not found to have committed child abuse or neglect on that basis.
We affirmed that order in New Jersey Division of Child Protection and
Permanency v. T.T., No. A-1503-16 (App. Div. Dec. 20, 2018) (slip op. at 2).
A second permanency hearing was held in 2017, where the goal remained
termination of parental rights.
A-5191-17T4
9
Dr. Cahill's updated parenting capacity report concluded Tanya and
Malcom were not viable custodial parents for Hope and that the prognosis was
poor for the future. In Dr. Cahill's opinion, Malcolm continued not to recognize
the harm posed to Hope by Tanya and did not protect Hope. This was evidenced
in part by his unwillingness to see Hope for a year without Tanya. Dr. Cahill's
report concluded that Tanya placed Hope at direct and substantial risk of harm.
Dr. Cahill noted that others did not see the behavior or medical concerns that
Tanya reported about Hope. Tanya was treating Hope much the same as she had
treated S.C. by exaggerating behavioral and medical issues and by isolating the
child. Dr. Cahill viewed Tanya as needing to be in control of everyone—
including Hope and Malcolm—and that all of this was consistent with the
diagnosis of FDIA. Tanya told Dr. Cahill that she "would not do anything
differently" if she regained custody. Dr. Cahill opined it was not in Hope's best
interest to return her to her parents' custody because they denied having done
anything wrong. In Dr. Cahill's opinion, FDIA "is both a mental illness and a
form of child abuse."
Dr. Cahill conducted a bonding evaluation between Hope and her resource
parents, providing a positive review. They were committed to adoption, which
A-5191-17T4
10
was a goal Dr. Cahill endorsed. She did not conduct a bonding evaluation with
Tanya or Malcolm and Hope.
By December 2016, Tanya and Malcolm continued to present themselves
as a couple and wanted to reunite with Hope. However, Tanya's therapist
advised the Division that Tanya had not "gained any insight into the reasons for
the Division's involvement." Malcolm's therapist said that Malcolm did not have
"insight into the neglect factors that he and [Tanya] presented."
Hope was making progress. An individualized education plan was
implemented. The resource family wanted to adopt Hope and were addressing
her behavioral issues.
Malcolm's supervised therapeutic visitation resumed in March 2017, but
he continued to bring gifts for Hope from Tanya including cards with lipstick
kisses, peeled off nail polish, and nail clippings. According to the resource
parents, Hope would be "a bit defiant" after visits with her father.
Malcolm's therapist reported in June 2017, that Malcolm wanted Hope at
home, but was not pursuing custody without Tanya. Tanya and Malcolm
requested the Division arrange couples counseling. By June 2017, Tanya
acknowledged to Dr. Platt that some of her parenting behavior was "connected
to deeper emotional issues relat[ed] to her past and trauma issues."
A-5191-17T4
11
The guardianship trial was conducted in October and November 2017. Dr.
Cahill testified as an expert in psychology, parental fitness and evaluation,
bonding and FDIA. Consistent with her reports, she testified FDIA was a form
of child abuse causing children to have unnecessary medical treatment, become
isolated from other children and suffer developmental setbacks. She noted
Tanya's parenting of Hope was similar to how she treated S.C. Dr. Cahill
testified that Tanya's long-standing behavior posed a risk of harm to Hope in the
future. In her opinion, Malcolm was "extremely dependent" on Tanya. He did
not see a mental health problem with Tanya or that she had done anything wrong.
Dr. Cahill did not recommend that Hope be returned to Tanya because
Tanya had always insisted she did nothing wrong, which placed the child at
substantial risk of harm. Dr. Cahill testified Malcolm had shown he would
choose Tanya's needs over Hope's. Also, he had not shown an inclination to
parent Hope without Tanya.
Dr. Cahill testified the resource parents had insight into Hope's needs and
were able to pursue the services she needed. It was Dr. Cahill's opinion the
resource parents could mitigate any harm to Hope from termination of her
parents' rights to her.
A-5191-17T4
12
Kelly Weymer, a Division family service specialist and supervisor,
testified that Tanya and Malcolm went back and forth about whether they were
a couple, but that Malcolm was clear he did not intend to parent Hope without
Tanya. Neither parent suggested the names of other relatives as alternatives for
Hope. Weymer also testified Hope was not diagnosed at that time with ADHD
or other medical or psychological conditions.
Tanya testified Hope suffered from ADHD and auditory processing issues.
She advised the court Malcolm and she were going to divorce although she felt
it was better if Hope was raised by both parents. She would not be involved if
the court ordered Hope returned to Malcolm exclusively. In Tanya's view, if
necessary, Malcolm could raise Hope by himself.
Malcolm testified he saw no problem with Tanya's care of Hope in the
past, was no longer in therapy and insisted it was his decision to live in the van.
Malcolm acknowledged Hope had missed a number of days of school, but
claimed she was frequently ill. Malcolm was willing to be Hope's sole parent if
need be, but that was not his "first choice." He also testified he would abide by
a court order not to allow Tanya to have contact with Hope. In the past, he
misunderstood he was not allowed to bring gifts to Hope from Tanya during
visits.
A-5191-17T4
13
On June 27, 2018, the trial court terminated Tanya's and Malcolm's
parental rights. The court found Dr. Cahill and Weymer's testimony to be
credible. Tanya's testimony, however, was "wandering and rambling" and
"significantly at odds with the Division records." Malcolm "made materially
inconsistent statements" in his testimony. The trial court concluded the Division
had proven each prong under N.J.S.A. 30:4C-15.1 by clear and convincing
evidence.
Under prong one the trial court found both parents harmed Hope. Tanya
"continued a pattern of negative parenting which included transience, exposure
to domestic disputes, and the mischaracterizations and amplification of [Hope's]
. . . so-called illnesses. Despite attempts at intervention, [Tanya] remained
hostile, confrontational and lacked the insight to therapeutically address her
issues." Her mental illness impaired her ability to parent, and when "coupled
with the near certainty that it will be untreated in the future," this posed the risk
of serious harm to Hope. Despite therapy, Tanya never gained the insight that
her behavior was maltreatment.
The trial court found Malcolm did not protect Hope from Tanya. He
actually withdrew his "solicitude, nurturance and care" from Hope by not
visiting when Tanya could not. When he did visit, Malcolm brought notes and
A-5191-17T4
14
other gifts from Tanya. If he had sole custody, Malcolm wanted the family to
live together even if he and Tanya were not in a relationship, not recognizing
this would expose Hope to harm.
Under prong two, the trial court found Tanya had "a long history of mental
health issues, unstable housing, lack of employment and poor judgment." Her
mental health issues and FDIA diagnosis extended for more than twenty years;
Tanya's treatment of S.C. and Hope was similar. Tanya did not achieve stability
during the course of the Division's involvement, and had no plan to address these
issues in the future.
Malcolm did not provide stable housing for Hope, did not recognize the
severity of Tanya's mental health issues and has not protected Hope. He showed
no improvement after services were provided. Malcom was not able to put
Hope's needs ahead of his own.
Under prong three, the trial court found the Division made reasonable
efforts to assist the family and to explore alternatives to termination. Tanya was
provided therapy for FDIA, although she initially refused to attend because she
disagreed with the diagnosis. Based on Dr. Platt's report, Tanya "never gained
insight into her diagnosis and never wavered in her disagreement with the
diagnosis of FDIA." Malcolm did not visit Hope for nearly a year because he
A-5191-17T4
15
disagreed with Tanya's lack of participation. Even when he began supervised
visitation, he brought gifts from Tanya. Despite individual counseling, Malcolm
still had "no insights regarding the reasons for the removal" or Tanya's mental
health condition. The Division provided other services including transportation,
parenting and caretaker education and assistance, domestic violence counseling,
housing assistance, and psychiatric and psychological evaluations and
treatment. Division workers asked for the names of any relatives and were not
given any.
Under prong four, the trial court concluded termination of parental rights
would not do more harm than good. Neither parent "demonstrated the stability
and judgment necessary to care for the child." Neither parent gained any insight
into their behavior. In contrast, the resource family is "responsibly committed
to [Hope's] adoption and [has] the ability to mitigate the harms previously
committed by her parents and any future issues that may arise." The bonding
evaluation found no evidence Hope would suffer an "enduring risk of [harm]" if
she had no contact with Tanya and Malcolm.
On appeal, Tanya argues the trial court misapplied case law and made
findings of fact that cannot be "reconciled" with the record. Further, she claims
the trial court erred because the Division did not contact and assess Hope's
A-5191-17T4
16
relatives for possible placement. Tanya also contends the trial court misapplied
precedent by not requiring comparative bonding evaluations of her and
Malcolm.
Malcolm argues the trial court erred because there was not clear or
convincing evidence for any of the four prongs under N.J.S.A. 30:4C-15.1(a)
and the evidence did not support the finding that Hope's safety, health or
development would be harmed. He was willing to raise Hope without Tanya,
therefore, the trial court erred by finding he was unwilling or unable to eliminate
the harms facing Hope. Malcom also argues the trial court erred because the
Division provided him with insufficient services. Finally, he contends there was
not clear and convincing evidence that termination of parental rights would not
do more harm than good.
II.
N.J.S.A. 30:4C-15.1(a) authorizes the Division to petition for the
termination of parental rights in 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
A-5191-17T4
17
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.
A trial court's decision to terminate parental rights is subject to limited
appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605
(2007); see Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family
courts' special . . . expertise in family matters, appellate courts should accord
deference to family court factfinding."). The family court's decision to terminate
parental rights will not be disturbed "when there is substantial credible evidence
in the record to support the court's findings." N.J. Div. of Youth & Family Servs.
v. E.P., 196 N.J. 88, 104 (2008).
A.
There was substantial credible evidence to support the trial court's
findings that Hope was harmed by both parents. Tanya kept Hope out of
A-5191-17T4
18
kindergarten for eighty-one days largely without doctors' notes. The school
journal entries that Tanya prepared listed negative behaviors and illnesses that
others did not observe to the extent she claimed. Tanya was diagnosed in 2000
as suffering from FDIA, but rejected this diagnosis, and refused treatment for
years. When she did undertake therapy with Dr. Platt, Tanya had little insight
into her condition and disagreed that it applied to her.
Despite Tanya's asserted breakthrough in treatment, there is no evidence
she accepted the FDIA diagnosis or its effect on her parenting. There is no
question that "a psychiatric disability can render a parent incapable of caring for
his or her children." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J.
Super. 77, 94 (App. Div. 2008). This is so even if parents are otherwise "morally
blameless . . . ." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super.
418, 438 (App. Div. 2001).
Here, Dr. Cahill, diagnosed Tanya with FDIA, which involves harming
another by claiming that person has illnesses he or she does not, and/or by
exaggerating the person's symptoms. The judge found Dr. Cahill's testimony to
be credible. Tanya's exaggeration of Hope's symptoms, keeping her out of
school, limiting her diet and restricting her interactions with other children were
A-5191-17T4
19
all harmful. Defendants provided no expert testimony to refute Dr. Cahill's
opinions.
The trial court did not err in finding sufficient credible evidence that
Malcom harmed Hope; he never intervened to protect her from Tanya. See Div.
of Youth & Family Servs. v. F.M., 211 N.J. 420, 450-51 (2012) (holding that
one parent's failure to protect a child from the injurious behavior of the other
was enough for a finding under prong one); see also Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261, 281-91 (2007).
Malcolm has no insight into Tanya's mental health issues or his own. He
claimed he was divorcing Tanya and would raise Hope by himself, contrary to
his past behavior where he capitulated to Tanya's demands to the extent he lived
for a time in a van in the driveway of their home. When he did visit Hope—
after nearly a year—he brought disturbing gifts from Tanya, including peeled-
off nail polish and fingernail clippings, and notes signed on behalf of a stillborn
child, who died years before. It would have been wishful thinking—without any
evidential support—to find that Malcolm would block contact from Tanya with
Hope. The court found Malcolm remained without insight into Tanya's mental
health issues or his own and because of that he never provided "any type of a
plan for a permanent, safe and stable home" for Hope.
A-5191-17T4
20
This had nothing to do with "cultural differences" as Malcolm argues on
appeal. It was Tanya's care for Hope that posed a substantial risk of harm; he
did not explain how cultural differences prevented him from grasping that risk.
B.
The trial court did not err in finding that Tanya and Malcolm either were
unable or unwilling to correct the harms they inflicted. Under prong two, the
Division must show a parent is unable or unwilling to correct the circumstances
that led to the Division's involvement. In re Guardianship of K.H.O., 161 N.J.
337, 348-49 (1999). "The question is whether the parent can become fit in time
to meet the needs of the child." N.J. Div. of Youth & Family Servs. v. T.S., 417
N.J. Super. 228, 244 (App. Div. 2010).
Tanya claims on appeal that she had a breakthrough in therapy, but there
was no acknowledgment by her she suffers from FDIA. Instead, Tanya contends
Hope really does suffer from the things that Tanya claimed. In her brief, she
argues Hope "was diagnosed with ADHD by her pediatrician in March 2015"
and showed "aggressive and defiant behaviors" in school and in her resource
homes post-removal. None of this contradicts Dr. Cahill's opinion that Tanya
lacks insight into her FDIA diagnosis and will not achieve such insight within
A-5191-17T4
21
the foreseeable future. Therefore, the trial court did not err by finding Tanya
could not correct the harms she caused Hope.
Malcolm argues the court failed to consider under prong two whether he
would or could parent Hope without Tanya. Even though he claims he would
follow the court's order that Tanya not have contact with Hope, he never
attempted to parent Hope without Tanya, and enabled her contact with Hope.
The trial court's finding under prong two that Malcolm would not correct the
harm to Hope is supported by his lack of understanding into the problems that
caused removal.
C.
Both parents argue the trial court erred by finding the Division satisfied
prong three under N.J.S.A. 30:4C-15.1. Tanya claims the Division did not
determine if there were other placement options for Hope, particularly with her
relatives.
Under N.J.S.A. 30:4C-12.1(a), when the Division takes custody of a child,
it must "initiate a search for relatives who may be willing and able to provide
the care and support required by" that child. Tanya contends for the first time
on appeal that the Division's November 2000 file from when S.C.'s case was
active listed contact information for some of Tanya's relatives. However, we
A-5191-17T4
22
find no error in the trial court's conclusion that prong three was satisfied. From
2015 through and including trial, Tanya never identified placement options for
Hope. To the contrary, she told caseworkers she "[did] not have any contact
with" her family. Malcolm's relatives were in Morocco and he did not suggest
options for placement. The Division did leave phone messages that were not
returned, and some of the numbers on file were no longer in service. Tanya and
Malcolm's lack of cooperation in identifying alternatives comported with their
non-acceptance of the reasons for removal.
Malcolm argues he was not provided with adequate services because he
was abused by Tanya. "[A]n evaluation of the efforts undertaken by [DCPP] to
reunite a particular family must be done on an individualized basis." In re
Guardianship of D.M.H., 161 N.J. 365, 390 (1999). "'Reasonable efforts' will
vary depending upon the circumstances" of the child's removal. N.J. Div. of
Youth & Family Servs. v F.H., 389 N.J. Super. 576, 620 (quoting A.G., 344 N.J.
Super. at 437). Nevertheless, "[t]he diligence of [DCPP's] efforts on behalf of
a parent is not measured by their success," D.M.H., 161 N.J. at 393, particularly
where the lack thereof is due to a parent's "failure to cooperate or follow
through" with services and obligations. N.J. Div. of Youth & Family Servs. v.
C.S., 367 N.J. Super. 76, 119 (App. Div. 2004).
A-5191-17T4
23
We agree with the trial court that the record shows Malcolm received
therapy, visitation, a cell phone, transportation assistance, psychological
evaluations, case worker visits, phone contacts, offers of family team meetings,
referrals to services for parenting classes and participation with DECIDE.6
There is no indication his individual therapist recommended any alternative
therapy for Malcolm. The trial court did not err by finding this prong was
satisfied.
D.
Tanya and Malcolm contend the trial court erred by finding termination
would not do more harm than good. They assert the trial court should have
required bonding evaluations for themselves and Hope; the only bonding
evaluation was between Hope and the resource parents.
In evaluating prong four, the trial court must balance the child's
relationships with her birth and resource parents and determine whether she will
suffer greater harm from the termination of ties with the former than with the
latter. In re Guardianship of J.N.H., 172 N.J. 440, 478 (2002). Prong four does
not require that "no harm will befall the child as a result of the severing of
biological ties." K.H.O., 161 N.J. at 355. A court must consider "the child's
6
This is a program for domestic violence offenders.
A-5191-17T4
24
age, her overall health and development, and the realistic likelihood that the
[natural] parent will be capable of caring for the child in the near future." Id. at
357.
We agree there was substantial evidence to support the trial court's finding
there was "no realistic likelihood" either defendant would be able to safely care
for Hope in the foreseeable future. Neither party gained insight into the
problems that resulted in Hope's removal or how to address the issues. Hope
was bonded with her resource parents, who want to adopt her. The expert opined
that the resource parents could address the harm resulting from termination. In
this circumstance, it is the relationship with the parents that is harmful. Given
both parents' lack insight about Tanya's mental health, the trial court did not err
by accepting Dr. Cahill's recommendation against a bonding evaluation.
Affirmed.
A-5191-17T4
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