DCPP VS. D.D. AND K.D., IN THE MATTER OF THE GUARDIANSHIP OF K.D. AND S.D. (FG-08-0038-18, GLOUCESTER 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NOT FOR PUBLICATION WITHOUT THE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-6016-17T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
D.D.,
Defendant-Appellant,
and
K.D.,
Defendant.
______________________________
IN THE MATTER OF THE
GUARDIANSHIP OF K.D.
and S.D.,
Minors.
_______________________________
Submitted May 13, 2019 – Decided May 20, 2019
Before Judges Sabatino and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FG-08-0038-18.
Joseph E. Krakora, Public Defender, attorney for
appellant (Durrell Wachtler Ciccia, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Amy M. Young, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Danielle Ruiz, Designated
Counsel, on the brief).
PER CURIAM
Defendant D.D. (Dee)1 appeals from an order terminating her parental
rights to her children K.D. (Kyle), born in June 2004, and S.D. (Sara), born in
July 2007.2 Judge Mary K. White entered the order for the reasons expressed in
an oral opinion. We reject Dee's contentions that the Division of Child
Protection and Permanency (Division) failed to meet its statutory burden under
1
We use initials and fictitious names to identify the parties and the children to
protect and preserve their confidentiality. R. 1:38-3(d)(12).
2
The parental rights of the children's father, K.D., were also terminated.
However, he did not appeal the order.
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2
each prong of the four-prong best interests test, codified at N.J.S.A. 30:4C-
15.1(a), by clear and convincing evidence.
Based upon our standard of review, we give "deference to family court[s']
fact[-]finding" because of "the family courts' special jurisdiction and expertise
in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). The judge's
findings of fact are not disturbed unless "they are so manifestly unsupported by
or inconsistent with the competent, relevant and reasonably credible evidence
as to offend the interests of justice." Id. at 412 (quoting Rova Farms Resort,
Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). "[T]he conclusions that
logically flow from those findings of fact are, likewise, entitled to deferential
consideration upon appellate review." N.J. Div. of Youth & Family Servs. v.
R.L., 388 N.J. Super. 81, 89 (App. Div. 2006).
In our review of the record, Judge White carefully considered the evidence
presented, and determined that the Division had satisfied all of the legal
requirements to obtain a judgment of guardianship. Her oral opinion tracks the
statutory guidelines of N.J.S.A. 30:4C-15.1(a), in accord with In re
Guardianship of K.H.O., 161 N.J. 337 (1999), In re Guardianship of DMH, 161
N.J. 365 (1999), and New Jersey Division of Youth & Family Services v. F.M.,
211 N.J. 420 (2012), and is supported by substantial and credible evidence in
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3
the record. Thus, given our assessment of the best interests test that follows, we
affirm substantially for the reasons the judge expressed in her thoughtful and
thorough opinion.
Prong One
As to prong one, the Division must prove that "[t]he child's safety, health,
or development has been or will continue to be endangered by the parental
relationship[.]" N.J.S.A. 30:4C-15.1(a)(1). "[T]he relevant inquiry focuses on
the cumulative effect, over time, of harms arising from the home life provided
by the parent." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 289
(2007).
"Serious 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) (citing In re Guardianship of J.C., 129 N.J. 1, 18
(1992)). As a result, "courts must consider the potential psychological damage
that may result from reunification[,] as the 'potential return of a child to a parent
may be so injurious that it would bar such an alternative.'" N.J. Div. of Youth
& Family Servs. v. L.J.D., 428 N.J. Super. 451, 480-81 (App. Div. 2012)
(quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986)).
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"The absence of physical abuse or neglect is not conclusive." A.W., 103
N.J. at 605 (quoting In re Guardianship of R., 155 N.J. Super. 186, 194 (App.
Div. 1977)). "A parent's withdrawal 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." DMH, 161 N.J. at 379. "Courts need not wait to act
until a child is actually irreparably impaired by parental inattention or neglect."
Id. at 383.
Judge White found that the Division introduced credible evidence to
support its contention that Dee's long history of abuse and neglect of her children
caused them harm. Prior to being removed from their mother before the current
guardianship proceeding, Kyle and Sara had been removed four times, but were
reunified with their mother each time. This revolving door of custody caused
them to feel abandoned and uncared for until they came under the care of their
current separate resource families.
When in Dee's custody, the children would often have to feed themselves
and get themselves ready for school. Dee would verbally abuse them. She failed
to take advantage of the services offered by the Division to address her long-
standing parenting, substance abuse addiction and mental health issues. She
missed her bonding evaluation for this proceeding, and did not consistently visit
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her children when they were under the Division's care and custody. Moreover,
Kyle eventually had to be placed in a separate resource home from his sister
because he developed anger issues, which caused him to physically abuse her
and to be declared a juvenile offender for threatening to kill a schoolmate –
leading to residential care and intense psychiatric treatment.
Judge White found compelling the respective testimony of Kyle and Sara,
which was confirmed by the testimony of the Division's caseworker and its
psychological expert, Dr. James Loving, Psy.D., regarding Dee's inability to
take care of them, her mistreatment of them, and their happiness with and desire
to be adopted by their resource families.3
With regards to Dee's argument that her substance abuse issue is
insufficient to prove that she poses a danger to her children's health,
development or safety, we disagree. Courts need not wait to act until a child is
actually irreparably harmed by parental inattention or neglect. DMH, 161 N.J.
at 383. Although Sara did not have any serious medical injuries, the record
amply supports the judge's finding that she suffered harm as a result of her
relationship with her mother. On the other hand, the harm to Kyle was more
3
Judge White also read into the record a heartfelt and moving letter written to
her by Sara expressing her desire to be adopted by her resource family because
her mother is unfit to parent her.
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severe, as evidenced by his aggressive behavior that led to him becoming a
juvenile offender. Fortunately, together with the treatment he received, his
resource father has been able to help guide him in the right direction with his
supportive and loving care.
Accordingly, there was substantial credible evidence to support the
judge's findings that Dee harmed and endangered her children, "threatens the
child[ren]'s health[,] and will likely have continuing deleterious effects on
[them]." K.H.O., 161 N.J. at 352.
Prong Two
As to prong two, the Division must prove that Dee is "unwilling or unable
to eliminate the harm facing the child[ren] or is unable or unwilling to provide
a safe and stable home . . . and the delay of permanent placement will add to the
harm." N.J.S.A. 30:4C-15.1(a)(2). That harm may include evidence that
separating the children from their resource parents "would cause serious and
enduring emotional or psychological harm . . . ." Ibid.
The Division can establish the second prong by proving that a "child will
suffer substantially from a lack of stability and a permanent placement[,] and
from the disruption of" a bond with the resource parents. K.H.O., 161 N.J. at
363. Because they are related, evidence supporting the first prong may also
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support the second prong "as part of the comprehensive basis for determining
the best interests of the child." DMH, 61 N.J. at 379.
Dee argues that even though she failed to comply with the Division's
repeated demands for substance abuse treatment, she was not using drugs when
the Division requested she receive treatment. She further alleges that it was
never shown that her substance abuse resulted in harm to Kyle and Sara. The
record, however, belies her assertions.
The judge determined that Dee failed to maintain a parental relationship
with Kyle and Sara. She consistently missed the majority of her scheduled visits
with her children. She refused to complete evaluations to assess her parenting
capacity, her psychological needs and her substance dependency. Such failures
evidence her unwillingness or inability to prioritize the needs of Kyle and Sara
over her own self-centered wants.
These shortcomings were exacerbated by the fact that Dee was homeless
for a time, and had no job or home of her own at the time of trial. At that time,
she was living with an unidentified man and his mother, but did not offer that
home for inspection or as a home for the children. She also failed to offer any
plan for reunifying with her children.
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Arguably, the most glaring example of her lack of concern towards Kyle
and Sara was that when she was advised of the guardianship trial date on
multiple occasions, she indicated that she would not be appearing. She remained
true to her word and did not appear.
Hence, there was substantial credible evidence supporting the judge's
findings that Dee is unwilling or unable to eliminate the harm facing the
children, or is unable or unwilling to provide a safe home for the children.
Prong Three
As to prong three, the Division is required to make "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 [will] consider[] alternatives
to termination of parental rights[.]" N.J.S.A. 30:4C-15.1(a)(3). This "prong of
the [best interests of the child] standard contemplates efforts that focus on
reunification of the parent with the child and assistance to the parent to correct
and overcome those circumstances that necessitated the placement of the child
into foster care." K.H.O., 161 N.J. at 354.
Dee argues the judge's determination that the Division made reasonable
efforts to reunify the family was not supported by clear and convincing
evidence. While she admits that her visits to see her children were inconsistent,
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she maintains she was consistently affectionate with her children when they
were with her. She claims her missed visits were often due to a lack of
transportation and eventually her homelessness. Again, the record contradicts
Dee's contentions.
Judge White found that the Division provided reasonable efforts to correct
the circumstances that led to the children's placement. As noted above, Dee
refused to take advantage of the services – offered by the Division throughout
the numerous times the children were removed then reunified – that would
enable her to properly parent Kyle and Sara. As for transportation, even though
the Division provided Dee with transportation – door-to-door transportation and
bus passes – to visit her children, she repeatedly did not show up for scheduled
visits.
With regard to alternatives, the judge found that no suitable family
members stepped forward to care for the children during any of their placements.
The children's paternal grandmother was the only relative who was offered as a
placement option after the children's last removal, but she was ruled out because
she was living with someone who had an open case with the Division. Their
respective resource parents were advised on adoption and Kinship Legal
Guardianship (KLG), but they were fully committed to adopting.
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Hence, there was substantial credible evidence in the record to support the
judge's findings that the Division made reasonable efforts to provide services to
help Dee correct the circumstances which led to her children's placement outside
the home; and the court considered alternatives to termination of parental rights,
such as KLG.
Prong Four
As to prong four, the Division must establish that sufficient credible
evidence exists to show that the "[t]ermination of parental rights will not do
more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The issue is whether, after
considering and balancing the two relationships, the child will suffer a greater
harm from the termination of ties with their natural parents than from the
permanent disruption of their relationship with their resource family. In re
Guardianship of J.N.H., 172 N.J. 440,478 (2002) (quoting K.H.O., 161 N.J. at
355).
Again positing that she was always affectionate with her children and her
children returned the affection, Dee claims there is no doubt that Kyle and Sara
would be harmed by terminating their relationship with her. Yet, she offers no
proof to support her assertion.
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Relying on the uncontroverted testimony of the caseworker and Dr.
Loving, who observed the close relationship that formed between Kyle and Sara
and their respective resource parents, the judge found that Dee was unable or
unwilling to provide a safe and stable home for Kyle and Sara, and that a delay
in a permanent placement will add to the harm they already suffered from Dee's
inability to take care of herself. The judge found it telling that both children
testified and unequivocally expressed their wishes to be adopted by their
resource parents, and not be returned to their mother. The judge found they were
with loving, caring families, and no additional harm would result from
formalizing the termination of parental rights.
Hence, there was substantial credible evidence to support the judge's
findings that terminating Dee's parental rights would not do more harm than
good to Kyle and Sara.
Affirmed.
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