DCPP VS. M.P. AND J.S., IN THE MATTER OF THE GUARDIANSHIP OF M.S. (FG-19-0021-20, SUSSEX 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NOT FOR PUBLICATION WITHOUT THE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-3820-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANANCY,
Plaintiff-Respondent,
v.
M.P.,
Defendant-Appellant,
and
J.S.,
Defendant.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF M.S.,
a minor.
_________________________
Argued September 15, 2021 – Decided October 15, 2021
Before Judges Hoffman and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FG-19-0021-20.
Ryan T. Clark, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Ryan T. Clark, on the briefs).
Mary L. Harpster, Deputy Attorney General, argued the
cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Sookie Bae, Assistant
Attorney General, of counsel; Mary L. Harpster, on the
brief).
David Valentin, Assistant Deputy Public Defender,
argued the cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Meredith Alexis
Pollock, Deputy Public Defender, of counsel; David
Valentin, of counsel and on the brief).
PER CURIAM
Defendant M.P. (the mother) appeals from a May 28, 2020 Family Part
order terminating her parental rights to her son M.S. (the child), born in 2012,
and awarding guardianship to the Division of Child Protection and Permanency
(the Division). 1 Judge Michael C. Gaus presided over the guardianship trial,
entered judgment, and rendered a ninety-page opinion. Defendant contends the
Division failed to satisfy its burden at the trial. After carefully reviewing the
1
The child's father voluntarily surrendered his parental rights and is not a party
to this appeal.
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record, we affirm substantially for the reasons explained in the trial judge's
comprehensive and detailed written opinion.
Judge Gaus aptly characterized the circumstances of this case as
"heartbreaking." The child is diagnosed with autism and attention deficit
hyperactivity disorder (ADHD). He is essentially non-verbal and requires
significant care for his special needs. Before his removal by the Division, the
child lived with defendant and her mother (the grandmother). Both have
intellectual challenges that place them in the "[e]xtremely [l]ow range" of
cognition.
As a result of defendant's profound cognitive impairment, she is unable to
fully understand the child's limitations, leading her to use inappropriate levels
of physical and emotional discipline, including corporal punishment. She
admitted to the Division that she intends to "use the hand" to raise the child
because that is how she was raised by her own mother—the grandmother.
Defendant stated, "[t]here's no way of changing. I can't hold back with not
hitting him anymore."
Relatedly, defendant does not appear to understand how her actions led to
the child's removal, as shown, for example, by her relationship with her
boyfriend, who is a registered sex offender. She falsely told the Division she
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had ended the relationship, later admitting to a therapist that they were still
living together but keeping their relationship "hush hush."
On appeal, defendant argues:
[POINT I]
THE TRIAL COURT'S FINDINGS WERE
INCOMPLETE AND INADEQUATE TO SUSTAIN A
JUDGMENT TERMINATING [DEFENDANT'S]
PARENTAL RIGHTS BY CLEAR AND
CONVINCING EVIDENCE AS REQUIRED BY
N.J.S.A. 30:4C-15 AND 30:4C-15.1.
[POINT II]
THE TRIAL COURT ERRED IN FINDING THAT
DCPP DEMONSTRATED BY CLEAR AND
CONVINCING EVIDENCE THAT [THE CHILD'S]
HEALTH AND DEVELOPMENT HAS BEEN OR
WILL CONTINUE TO BE ENDANGERED BY THE
PARENTAL RELATIONSHIP UNDER THE FIRST
PRONG. [THE CHILD] WAS SUCCESSFULLY
PARENTED BY [DEFENDANT] UNTIL HIS
REMOVAL BY DCPP. DESPITE REMOVING [THE
CHILD] FROM [DEFENDANT] DUE TO A SINGLE
HAND SLAP, DCPP DOCUMENTED THAT [HE]
WAS NEATLY DRESSED, WELL GROOMED,
"LAUGHING" AND GIVING DCPP
INVESTIGATORS HIGH FIVES. SELF-
EVIDENTLY, THE SON WAS NEVER HARMED BY
[DEFENDANT].
[POINT III]
THE TRIAL COURT ERRED IN FINDING THAT
DCPP DEMONSTRATED BY CLEAR AND
CONVINCING EVIDENCE THAT [DEFENDANT]
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WAS UNWILLING OR UNABLE TO ELIMINATE
THE ALLEGED HARM FACING [THE CHILD] OR
IS UNABLE OR UNWILLING TO PROVIDE A SAFE
AND STABLE HOME FOR HIM AND THE DELAY
OF PERMANENT PLACEMENT WILL ADD TO
THE HARM UNDER THE SECOND PRONG.
A. DCPP'S OWN SERVICE PROVIDERS AND
TRIAL EXPERTS PROVE THAT
[DEFENDANT] CAN REUNIFY HER SON
AND TREAT HIS AUTISM. BY THE TIME OF
TRIAL, DCPP DOCUMENTED THAT [THE
CHILD'S] AUTISM IS "NOT SEVERE IN
NATURE" AND HE "IS NOT EXHIBITING
ANY BEHAVIORAL ISSUES."
[POINT IV]
THE DIVISION FAILED TO PROVE PRONG THREE
WAS MET WHERE IT FAILED TO PROVIDE
SERVICES THAT WERE REASONABLE UNDER
ALL THE CIRCUMSTANCES AND THE COURT
DID NOT EXPLORE ALTERNATIVES TO
TERMINATION.
A. DCPP'S CARELESS APPROACH, RATHER
THAN TAILORED SERVICES, WAS NOT
REASONABLE.
B. THE COURT ERRED BY FINDING THAT
DCPP CONSIDERED ALTERNATIVES TO
TERMINATION WHERE IT REFUSED TO
PLACE [THE CHILD] WITH HIS
GRANDMOTHER.
A-3820-19
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[POINT V]
THE TRIAL COURT ERRED IN FINDING THAT
DCPP DEMONSTRATED BY CLEAR AND
CONVINCING EVIDENCE THAT TERMINATION
OF [DEFENDANT'S] PARENTAL RIGHTS WILL
NOT DO MORE HARM THAN GOOD WHERE [THE
CHILD] HAS BEEN PLACED AND REMOVED
FROM SIX FOSTER CARE HOMES BY DCPP
PROVING THAT FOSTER CARE HAS NOT LED TO
A SCINTILLA OF PERMANENCY.
I.
The legal framework regarding the termination of parental rights is well -
established. Parents have a constitutional right to the care, custody, and control
of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); see also In re
Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citation omitted)
(recognizing that "[a] parent's right to enjoy a relationship with his or her child
is constitutionally protected"). That right "is among the most fundamental of all
rights." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 447 (2012)
(citing N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 102 (2008)). A
parent's constitutional right to raise his or her child is not absolute, however.
N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 553 (2014). At times,
a parent's interest must yield to the State's obligation to protect a child from
harm. N.J. Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 397 (2009). "In
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some instances this may require a partial or complete severance of the parent-
child relationship." N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591,
599 (1986) (citation omitted).
To effectuate these concerns and balance the competing interests, the
Legislature formulated a multi-part test to determine when it is in the child's best
interests to terminate parental rights. Specifically, N.J.S.A. 30:4C-15.1(a)
(2015) 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 his resource family parents would cause
serious and enduring emotional or psychological harm
to the child; 2
(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
2
The last sentence of this paragraph was deleted by L. 2021, c. 154, § 9. At
oral argument, counsel for defendant, the Division, and the law guardian agreed
that the recent revision to the statutory best-interests test has no impact on this
case.
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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 the 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
Child. by L.A.S., 134 N.J. 127, 139 (1993)).
When applying the best-interests test, a trial court must pay particular
attention to a child's need for permanency and stability. In re Guardianship of
D.M.H., 161 N.J. 365, 385–86 (1999). 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." N.J. Div. of
Youth & Fam. Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006) (citing In
re Guardianship of J.C., 129 N.J. 1, 10 (1992)).
The scope of our review is limited. Factual findings by a Family Part
judge are "binding on appeal when supported by adequate, substantial, and
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credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova
Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)); see also N.J. Div.
of Youth & Fam. Servs. v. M.M., 189 N.J. 216, 279 (2007). The deference we
afford reflects the family court's specialized knowledge and experience. F.M.,
211 N.J. at 427. Accordingly, 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). An appellate
court should not disturb the trial court's findings unless it is "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).
The deference we accord to findings made by a Family Part judge applies
in parental termination cases. See In re Guardianship of J.N.H., 172 N.J. 440,
472 (2002). "When a biological parent resists termination of his or her parental
rights, the [judge's] function is to decide whether that parent has the capacity to
eliminate any harm the child may already have suffered, and whether that parent
can raise the child without inflicting any further harm." R.L., 388 N.J. Super.
at 87. The factual findings that support such a judgment "should not be disturbed
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unless 'they are so wholly unsupportable as to result in a denial of justice,' and
should be upheld whenever they are 'supported by adequate, substantial and
credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App.
Div. 1993) (quoting Rova Farms, 65 N.J. at 483–84); see also E.P., 196 N.J. at
104.
II.
Defendant contends the trial court abused its discretion with respect to all
four prongs of the best-interests test. We disagree. We conclude the Division
proved all four prongs by clear and convincing evidence. As noted above, we
affirm substantially for the reasons articulated by Judge Gaus in his
commendably detailed and thorough written opinion. We add the following
comments.
The Division's decision to shift the permanency goal from reunification to
adoption was made only after years of concerted efforts by the Division to
provide services to keep the family intact. Despite defendant's contrary claim,
the record amply supports the trial court's determination that the Division
provided extensive individualized, carefully tailored services to both the
defendant and the grandmother. There have been numerous psychological
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evaluations, bonding evaluations, supervised visitations, and individualized
psychotherapy.
We note further that the Division presented extensive evidence at the
guardianship trial, including testimony from multiple expert witnesses whom
the trial judge found to be credible. The Division's experts opined that despite
the Division's efforts, defendant will not be able to provide a safe and stable
home for the child. The law guardian's expert reached the same conclusion, and
even defendant's expert questioned her ability to safely parent the child.
We recognize that defendant's shortcomings as a parent can be attributed
in large part to her cognitive limitations—a circumstance beyond her control.
As we have already noted, defendant struggles to understand why the child was
removed and why the Division sought to terminate her parental rights. In view
of her severe cognitive limitations, we believe she is morally blameless for the
manner in which she exercised her parental responsibilities. We must focus,
however, on the best interests of the child. Those interests require termination
of parental rights notwithstanding that defendant is not blameworthy by reason
of circumstances beyond her control. In A.W., our Supreme Court commented,
"[w]e cannot determine how much the inability of the parents to transfer
affection or care to their children may be attributed to the parents' being short -
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changed by either nature or society." 103 N.J. at 614–15. The Court added,
"[p]arents are not to be adjudged unfit because they lack resources or
intelligence, but only by reason of conduct detrimental to the physical or mental
health of the child, specifically in the form of actual or imminent harm." Id. at
616. Applying the credible evidence adduced at the guardianship trial to that
foundational principle, we agree with the trial judge that despite the sustained
efforts by the Division to provide services and assistance, defendant is and will
continue to be unable to address the child's special needs.
Finally, we address defendant's contention that the Division's efforts
"[have] not led to a scintilla of permanency" and that termination of defendant's
parental rights will do more harm than good. As noted, we pay particular
attention to a child's need for permanency and stability. D.M.H., 161 N.J. at
385–89. Regrettably, the child in the course of his young life has been placed
in six resource homes and everyone agrees that adoption will be challenging.
The evidence presented by the Division pertaining to the fourth prong, while
meeting the clear and convincing standard of proof, presents a closer question
than with respect to the other three prongs of bests-interests test.
As we have explained, the fourth prong requires the Division to
demonstrate that "[t]ermination of parental rights will not do more harm t han
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good." N.J.S.A. 30:4C-15.1(a)(4). The fourth prong "'serves as a fail-safe
against termination even where the remaining standards have been met.'" E.P.,
196 N.J. at 108 (quoting N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596,
609 (2007)). In determining whether the fourth prong has been established, t he
trial court may rely on expert testimony and when conducting its analysis, it may
balance the potential injury that a child could experience through the termination
of parental rights against the harm that the child might suffer if removed from
the resource placement. See K.H.O., 161 N.J. at 355 ("Weighing the potential
harm that terminating [the child's] relationship with her mother against that
which might come from removing her from her foster home is painfully difficult,
but it is a decision that necessarily requires expert inquiry specifically directed
to the strength of each relationship.") (quoting J.C., 129 N.J. at 25).
The case before us does not present a situation where termination of
parental rights is a prerequisite for an impending adoption. Cf. N.J. Div. of
Youth & Fam. Servs. v. B.G.S., 291 N.J. Super. 582, 592–95 (App. Div. 1996)
(recognizing that termination of parental rights is necessary when it permits a
child to have a secure and permanent home). In E.P., our Supreme Court
recognized that "terminating parental rights without any compensating benefit,
such as adoption, may do great harm to a child." 196 N.J. at 109 (quoting A.W.,
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103 N.J. at 610–11). "Such harm," the Court explained, "may occur when a
child is cycled through multiple foster homes after a parent's rights are severed."
Ibid. The Court also noted, "[i]t 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.'" Id. at 108 (alteration in original)
(quoting A.W., 103 N.J. at 610).
There is, however, no categorical rule that precludes termination of
parental rights unless and until the Division has lined up a permanent placement
for the child. As the Court in E.P. acknowledged, "[w]e know that '[t]ermination
of parental rights does not always result in permanent placement of the child'
and 'that too many children "freed up" for adoption do not in the end find
permanent homes.'" Id. at 109 (quoting J.C., 129 N.J. at 21).
In E.P., the Court reversed the order terminating parental rights,
concluding the Division failed to satisfy the fourth prong by clear and
convincing evidence. Id. at 110. Defendant's reliance on this decision is
misplaced since the circumstances that necessitated the result in E.P. are readily
distinguishable from the case now before us. In E.P., parental rights were
terminated "based in large part on [E.P.'s] addiction to drugs, psychological
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problems, and unstable lifestyle, all of which made her unfit to care for her child
for most of the child's life." Id. at 92. Despite those challenges, which included
a period of incarceration, E.P. managed to maintain a relationship with her
daughter and visited her as frequently as the court permitted. Id. at 93–94.
Throughout a period of nine years, E.P. attended multiple in-patient and out-
patient rehabilitation programs to address her heroin addiction, and despite
occasional relapses, she eventually found a job and an apartment. Id. at 94. She
also completed a parenting skills program and for the most part complied with
the Division's reunification plan, which involved submitting to psychological
evaluations, random drug testing, psychotherapy, and medication-assisted
(methadone) drug rehabilitation. Ibid. The Division ultimately filed a
guardianship complaint seeking the termination of her parental rights because
of her "intractable drug problem." Ibid.The daughter, who was almost thirteen years old, was emotionally fragile
and unstable, and had been placed in twelve different foster homes. Id. at 92,
95. During this time, E.P. still visited her daughter, who was developing a
positive relationship with E.P.'s boyfriend. Id. at 95. The daughter exhibited
behavioral problems as she moved between resource placements, ranging from
tantrums and explosive outbursts to assaulting other children and physically
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threating various foster parents. Ibid. Significantly, she also threatened or
attempted to kill herself on multiple occasions, which culminated with her
transfer to an "emergency" foster placement and treatment home. Ibid. The
daughter asked to be reunited with her mother repeatedly, and even told a teacher
that if she could not be with E.P., she wanted to die. Id. at 95–96.
During the guardianship hearing, the family court judge encouraged the
Division to reconsider kinship guardianship because of E.P.'s age and her
attachment to her mother. The judge noted that the daughter "had no desire to
be adopted and therefore an attempt at adoption would likely be 'futile.'" Id. at
97. The daughter's law guardian, moreover, opposed termination and believed
that the judge focused too much on E.P.'s parental shortcomings rather than on
the significant harm termination would cause the daughter. Id. at 98–99, 106.
The judge nonetheless terminated E.P.'s parental rights. In reversing that
decision, the Supreme Court noted that the trial court terminated E.P.'s parental
rights, "with a marked reluctance, understanding that its conclusion that
termination would not do more harm than good was a prediction, at best." Id. at
110. On those facts, the Supreme Court held that the record did not support the
conclusion that the Division satisfied the fourth prong by clear and convincing
evidence. Ibid.A-3820-19
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In the case before us, the child has been in six resources homes and the
experts all agree that his permanent placement will be difficult. However, in
stark contrast with the situation in E.P., the child never developed a strong bond
with defendant or the grandmother. We recognize, as did Judge Gaus, that the
child's special needs and emotional and cognitive limitations make it difficult to
ascertain the depth and strength of his bond with his mother and grandmother.
Even so, as Judge Gaus found, defendant's own expert "was unable to say…that
the child is currently securely bonded to [defendant] or the grandmother."
Furthermore, it reasonably appears the child is presently in a stable
resource placement. The Division explained at oral argument that the current
resource family, while not prepared to adopt the child, has expressed its
commitment to serve as a resource placement until the child is adopted. In these
circumstances, there is no reason to believe the child will be "cycled through
multiple foster homes after [the mother's] rights are severed." See A.W., 103
N.J. at 611. We therefore conclude the trial judge did not abuse his discretion
in determining that the Division satisfied the fourth prong by clear and
convincing evidence.
Affirmed.
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