DCPP VS. N.L.M. AND M.M., IN THE MATTER OF THE GUARDIANSHIP OF M.M. (FG-01-0049-19, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 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NOT FOR PUBLICATION WITHOUT THE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 NO. A-2305-19T1
NEW JERSEY OF DIVISON
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
N.L.M,
Defendant,
and
M.M,
Defendant-Appellant.
___________________________
IN THE MATTER OF THE
GUARDIANSHIP OF M.M.,
a minor.
___________________________
Submitted November 16, 2020 – Decided December 22, 2020
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic County,
Docket No. FG-01-0049-19.
Joseph E. Krakora, Public Defender, attorney for
appellant (Catherine Reid, Designated Counsel, on the
briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae, Assistant Attorney General, of
counsel; Julie B. Colonna, Deputy Attorney General, on
the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Denise M. Meyer,
Assistant Deputy Public Defender, of counsel and on
the brief).
PER CURIAM
Defendant N.L.M (the father) appeals from a January 23, 2020 order
terminating his parental rights to his daughter M.M. (the child), born in 2015,
and awarding guardianship to the child's maternal grandparents. Sadly, both the
child's father and mother have long suffered from opiate addictions. 1 The father
also has a long history of criminal convictions and has been incarcerated or
restricted to a halfway house for much of the child's life. He has shown little
1
The mother voluntarily surrendered her parental rights to M.M. and two
younger half-siblings in December 2019. The mother is not a party to this
appeal.
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2
interest in reunifying with his child, declining visitation opportunities and
repeatedly refusing to accept court-ordered services to address his parenting
failures. Judge W. Todd Miller presided over the guardianship trial, entered
judgment, and rendered a comprehensive and detailed oral opinion. We affirm
substantially for the reasons stated by Judge Miller on the record.
On appeal, the father argues:
POINT I
THE TRIAL COURT'S LEGAL CONCLUSIONS AS TO N.J.S.A. 30:4C-
15.1(A) DID NOT FLOW FROM THE ESTABLISHED FACTS.
A. THE TRIAL COURT'S LEGAL CONCLUSION THAT
DCPP SATISFIED ITS BURDEN OF PROOF AS TO
THE FIRST HALF OF N.J.S.A. 30:4C-15.1(A)(3) WAS
NOT SUPPORTED BY THE RECORD WHERE DCPP
MADE LITTLE EFFORT TO PROVIDE SERVICES TO
[THE FATHER] UNTIL THE FINAL MONTHS PRIOR
TO THE GUARDIANSHIP TRIAL AND ITS BELATED
EFFORTS, WHICH ESSENTIALLY CONSISTED OF
PROVIDING HIM WITH A FEW PHONE NUMBERS
AND SCHEDULING A HOME STUDY FOR THE DAY
OF TRIAL, CANNOT BE DEEMED "REASONABLE"
WITHIN THE MEANING OF THE LAW.
B. THE JUDGMENT SHOULD NOT BE AFFIRMED
BECAUSE THE FAMILY PART'S CONSIDERATION
OF ALTERNATIVES TO TERMINATION OF
PARENTAL RIGHTS WAS BASED ENTIRELY ON
HEARSAY REPRESENTATIONS ABOUT THE
GRANDPARENTS' INTENT TO ADOPT, THE
RELIABILITY OF WHICH WERE UNDERMINED BY
THE DCPP RECORDS ADMITTED AT TRIAL.
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C. THE TRIAL COURT'S LEGAL CONCLUSION THAT
DCPP SATISFIED ITS BURDEN OF PROOF AS TO
N.J.S.A. 30:4C-15.1(A)(1) WAS NOT SUPPORTED BY
THE RECORD WHERE DCPP PRESENTED NO
EVIDENCE THAT THE DAUGHTER WAS HARMED—
PHYSICALLY, EMOTIONALLY, OR
PSYCHOLOGICALLY—BY [THE FATHER'S]
INCARCERATION, LONG-DISTANCE PARENTING,
OR PRIMARILY NON-CUSTODIAL STATUS.
D. THE TRIAL COURT'S LEGAL CONCLUSION THAT
DCPP SATISFIED ITS BURDEN OF PROOF AS TO
N.J.S.A. 30:4C-15.1(A)(2) WAS NOT SUPPORTED BY
THE RECORD TO THE EXTENT IT ONCE AGAIN
RELIED ON THE DAUGHTER'S FOUR YEARS WITH
HER GRANDPARENTS AND THE ALLEGED
FAILURE TO COMPLETE SERVICES THAT WERE
NOT OFFERED.
E. THE TRIAL COURT'S LEGAL CONCLUSION THAT
DCPP SATISFIED ITS BURDEN OF PROOF AS TO
N.J.S.A. 30:4C-15.1(A)(4) WAS NOT GROUNDED IN
THE RECORD WHERE THE COURT COULD NOT
PROPERLY EVALUATE THE POSSIBILITY OF KLG,
WHERE THE EXPERT'S CONCLUSION WAS BASED
ON THE FALSE DICHOTOMY BETWEEN ADOPTION
AND TERMINATION PRESENTING BY DCPP, AND
WHERE THE COURT INACCURATELY ASSUMED
AN ABRUPT TRANSITION TO INADEQUATE
LIVING CONDITIONS.
1. A BEST INTEREST ANALYSIS CANNOT BE
COMPLETE WHERE DCPP FAILED TO PRESENT
EVIDENCE THAT KLG WAS ADEQUATELY
EXPLORED AND UNEQUIVOCALLY REJECTED
AND THIS LACK OF EXPLORATION SKEWED
THE EXPERT REPORT.
A-2305-19T1
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2. THE COURT'S HOLDING THAT A RETURN TO
THE FATHER WOULD BE HARMFUL DUE TO AN
ABRUPT TRANSITION TO THE ALLEGED
INADEQUACY OF THE FATHER'S LIVING
ACCOMMODATIONS WAS NOT BASED ON THE
RECORD EVIDENCE.
POINT II
FATHER ASKS THIS COURT TO VACATE THE JUDGMENT
AND REMAND FOR A NEW TRIAL BECAUSE THE JUDGE
ERRED IN DENYING HIS REQUEST FOR A POSTPONEMENT
SO THAT HE COULD COMPLETE THE DCPP-REQUIRED,
COURT-ORDERED ASSESSMENT NECESSARY FOR
REUNIFICATION AS WELL AS ATTEND HIS OWN TRIAL.
I.
We begin by addressing the father's contention that the trial judge erred
by denying a last-minute request to postpone the guardianship trial. The father
did not appear on the first day of trial, January 21, 2020, despite having been
given notice of the trial date. His counsel on that day sought an adjournment to
await the results of a home assessment by child welfare authorities in Florida,
where the father had relocated after the birth of his child.2 Judge Miller denied
2
Counsel argued that the assessment was scheduled to be completed that same
day and that defendant thus needed to be in Florida. On January 23, 2020, DCPP
(the Division) presented evidence the father had been noncompliant with the
home assessment process conducted in accordance with the Interstate Compact
for Placement of Children (ICPC). Specifically, the ICPC case worker in Florida
A-2305-19T1
5
the adjournment request, reasoning that the father had been given notice of the
trial date, the case was already two months beyond the six-month goal for
convening guardianship trials, the father's time and financial cost of attending
the proceedings was relatively de minimis, notwithstanding his current
residence out-of-state, and the child's interests would be best served by
proceeding with trial. We add that Judge Miller offered the father the
opportunity to telephonically participate at the trial. However, the father's
attorney was unable to receive an answer from his client that day.
Trial judges are afforded great latitude in controlling their calendars and
making scheduling decisions. State v. Kates, 426 N.J. Super. 32, 45 (App. Div.
2012). Accordingly, the scope of our review of these decisions is narrow. In
State v. Furguson, we recognized that "[t]he granting of a continuance
necessarily rests within the sound discretion of the trial court, and the exercise
of that discretion will not constitute reversible error in the absence of a showing
of an abuse of discretion causing defendant a manifest wrong or injury." 198
commented that "[the father was] just playing games," and that he failed to
present proof that he had submitted to urine testing and fingerprinting, which
are prerequisites to the reunification home assessment process. We address the
father's challenge to the admission of this information as substantive evidence
at trial in Section II, infra. For present purposes, we note that the adjournment
request was based on the need to await the results of an assessment the father
refused to cooperate with.
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N.J. Super. 395, 402 (App. Div. 1985). In the present circumstances, we find
no abuse of discretion in denying the last-minute request to postpone the trial.
Nor has the father suffered a manifest wrong or injury. Even if he had attended
trial, we believe the result would have been the same in view of the
overwhelming evidence presented by the Division.
II.
The father contends the trial judge improperly admitted hearsay evidence
documenting the efforts by Florida child welfare authorities to perform the home
assessment and provide other reunification-related services pursuant to the
ICPC. Because we affirm for the reasons explained in Judge Miller's thoughtful
oral ruling on counsel's hearsay objection, we need not re-address the father's
argument 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. Accordingly, an appellant challenging
a trial court's decision to admit hearsay "faces an especially high hurdle in an
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7
appeal from a civil bench trial" to demonstrate reversible error. N.J. Div. of
Child Prot. & Permanency v. J.D., 447 N.J. Super. 337, 349 (App. Div. 2016).
As we have noted, the ICPC case worker report in question was in fact
originally requested by the father's counsel, who urged that the guardianship
trial be adjourned until that information could be presented to the court. The
father now contends it was inappropriate for the court to consider that same
information once it became available. Judge Miller determined that the
information provided by the Florida caseworker was reliable. See In re
Guardianship of Cope, 106 N.J. Super. 336, 343–44 (App. Div. 1969) (holding
that State case worker reports "supply a high degree of reliability as to the
accuracy of the facts contained therein."). Judge Miller also found that it was
not feasible to have the out-of-state caseworker travel to New Jersey to relate
the information in person at trial.
We are satisfied in these circumstances the trial judge did not abuse his
discretion in admitting the information under N.J.R.E. 804(a)(4) (providing a
hearsay exception where a declarant is unavailable, and their attendance cannot
be procured by "reasonable means."). We add that even without this evidence,
the Division presented other evidence at trial that overwhelmingly proved the
grounds for terminating the father's parental rights.
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III.
The father contends the Division failed to satisfy its burden at the
guardianship trial. We disagree. We begin our analysis by acknowledging
certain foundational principles that govern this appeal. 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. N.J. Div. of Youth & Family Servs. v. G.M., 198
N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992).
To effectuate these concerns, the Legislature created a multi-part 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:
A-2305-19T1
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(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-2305-19T1
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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 413 (quoting Rova Farms, 65 N.J. at 484). "[T]he conclusions that
A-2305-19T1
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logically flow from those findings of fact are, likewise, entitled to deferential
consideration upon appellate review." R.L., 388 N.J. Super. at 89.
The father argues that the Division in this case failed to prove any of the
prongs of the best-interests test. 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 the judge. We add the following remarks with respect to each prong.
A.
The father argues that Judge Miller erred in finding that the child was
physically, emotionally, or psychologically harmed by his behavior. The
father's argument misperceives both the nature of the harm contemplated in the
best-interests test and the nature and strength of the evidence that was presented
by the Division.
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). It 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
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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, and of special significance in this
case, "[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." D.M.H., 161 N.J. at 379 (citing K.H.O., 161 N.J. at 352–54). Indeed,
it is well-established that a parent's "persistent failure to perform any parenting
functions and to provide nurture, care, and support" to a child is "a parental harm
to that child arising out of the parental relationship" under the statute. Id. at 380
(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 Miller observed that the father had been
incarcerated for a total of twenty-three months since his child's birth—that is,
for nearly half of her life. Additionally, the judge found that the father "never
reached sobriety" and did not complete his substance abuse treatment or court-
ordered services. Accordingly, Judge Miller concluded that prong one was
A-2305-19T1
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established by clear and convincing evidence of the father's incarceration, his
recurrent substance abuse, and his failure to complete court-ordered services
needed to break the cycle of addiction and criminality. Judge Miller further
found that the father's persistent failure to perform parenting functions —
resulting in near-total absence from the child's life—was also underscored by
his choice not to accept the Division's offer to arrange supervised visitation
during his periods of incarceration, and his subsequent choice not to accept the
Division's offer to arrange for him to travel to New Jersey at the Division's
expense for supervised visitation after he moved to Florida. We deem it to be
especially important, moreover, that in making his findings regarding harm to
the child, Judge Miller relied upon the credible expert testimony of the clinical
psychologist who examined both father and child. We see no reason to disturb
these findings, which are well-supported by substantial credible evidence in the
record.
B.
We likewise reject the father's argument that Judge Miller erred in finding
that harm to the child would continue to occur. The second prong of the best-
interests test requires the Division to present clear and convincing evidence that
"[t]he parent is . . . unable or unwilling to provide a safe and stable home for the
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child and the delay of permanent placement will add to the harm." N.J.S.A.
30:4C-15.1(a)(2). "The court considers 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 & Family Servs. v.
L.J.D., 428 N.J. Super. 451, 483 (App. Div. 2012) (quoting R.L., 388 N.J. Super.
at 87 (App. Div. 2006)). As noted, the first and second prongs are closely
related, and often, "evidence that supports one informs and may support the
other as part of the comprehensive basis for determining the best interests of the
child." D.M.H., 161 N.J. at 379.
The second prong can be proved in two alternative ways. K.H.O., 161
N.J. at 352. First, the Division can show that it is reasonably foreseeable that
the parent will not or cannot cease to inflict harm upon the child. A.W., 103
N.J. at 606–07, 615–16. This can be established by proving parental "dereliction
and irresponsibility," which can be shown by proof of continued substance
abuse, the inability to provide a stable home, and the withholding of nurturing
and attention. K.H.O., 161 N.J. at 353.
Alternatively, "[p]arental unfitness may be demonstrated if the parent has
failed to provide a 'safe and stable home for the child' and a 'delay in permanent
placement' will further harm the child." Id. at 352. Under this alternative
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method of proving the second prong, a trial court examines the bonds between
a child and his or her resource parent(s). See D.M.H., 161 N.J. at 382 (finding
the second prong based upon the court-appointed expert's testimony that
"breaking the children's bond with their foster family would cause substantial
and enduring harm to the children").
In the present case, Judge Miller found that prong two was satisfied by
both methods. As to the first method, the judge found that the father had a
documented history of substance abuse and refusal to accept treatment services
offered by the criminal justice system and by the Division.
To underscore this finding, we recount the consequences of the father's
recurrent substance abuse. Though the father acknowledged his history of
polysubstance abuse, the trial judge found a consistent lack of candor with
respect to his repetitive violations. The record reflects a pattern in which the
father has claimed sobriety and cooperation with his treatment, notwithstanding
the evidence indicating otherwise. Notably, he was incarcerated for four months
in 2016 on a violation of probation (VOP) for continuing to abuse illicit drugs.
In the same vein, the father also attempted to evade random urine testing on
multiple occasions during his participation in the Intensive Supervision Program
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(ISP) and was later re-incarcerated after testing positive on three consecutive
ISP drug screens in September, October, and November 2017.
Our review of the record also shows that the father has never had custody
of his child save for one week in December 2017, when he misrepresented to the
court that he had been compliant with services provided by the ISP after his
release from prison. That one week of custody ended when he was arrested and
incarcerated for violation of his ISP and later sent to an in-patient treatment
facility, from which he soon was involuntarily discharged for failing a drug test.
He overdosed the day after his discharge and had to be revived with Narcan.
Defendant's recurrent substance abuse, viewed in the context of his denial and
persistent refusal to accept treatment, amply supports the trial judge's finding
that he would not be able to provide a stable home for the child.
Judge Miller also made a finding as to the alternative "safe and stable
home" method of proving the second prong, based on credible expert testimony.
He concluded that removing the child from her maternal grandparents would
serve only to uproot her from the only home she had ever known. We agree and
defer to the trial judge's conclusions with respect to both methods for
establishing prong two, as they were adequately premised on substantial credible
evidence.
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C.
We next address the father's contention that Judge Miller erred in finding
that the Division proved the third prong of the best-interests test. 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 N.J. Div. of Youth &
Family Servs. v. A.G., 344 N.J. Super. 418, 437 (App. Div. 2007)). 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. "[E]ven [the
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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 d uring an
out-of-home placement. N.J.S.A. 30:4C-15.1(c).
In this case, the record shows that during his periods of incarceration, the
Division visited the father on a monthly basis and offered substance abuse
treatment as well as supervised visitation with his child. He refused to avail
himself of either treatment or visitation throughout most of his imprisonment.
This pattern of denial and refusal continued after his release from prison. While
in Florida, as well as during his infrequent return trips to New Jersey, he
consistently refused to participate in offered treatment programs and refused to
submit to urine testing.
The father claims that after he moved to Florida in October 2018, the
Division failed to contact Florida officials on his behalf or provide him with an
agency referral until August 2019. The father asserts that this delay constitutes
a failure by the Division to make reasonable efforts to provide him with services
to remediate his parenting deficiencies. We disagree. Judge Miller
acknowledged that providing services under the ICPC is slow, but nonetheless
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found that the Division's efforts were reasonable in the circumstances. Judge
Miller also found that the defendant continually invited his own hardships and
frustrated the Division's efforts to aid him. The judge observed, for example,
that the Division provided the father with contact information for Florida service
providers but he repeatedly refused to contact or cooperate with those providers.
He likewise neglected to take advantage of the Division's offer to reimburse him
for monthly flights back to New Jersey to visit his child, repeatedly citing the
need to grow his landscaping business in Florida. The record thus amply
supports Judge Miller's conclusion that the Division made reasonable efforts to
reunify the father with his child in view of his election to move to Florida. In
short, the father, not the Division, is responsible for the failure of reunification.
D.
Finally, we address the father'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, a child could experience through
the termination of parental rights against the harm the child might suffer if
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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 &
Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004)). 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]." K.H.O., 161 N.J. at
363.
In this instance, Judge Miller placed appropriate emphasis on the need to
afford the child a sense of permanency. In reaching his conclusion, the judge
relied on credible expert testimony that the child's connection with her maternal
grandparents was substantially stronger than the bond she had with the father,
who only had custody of her for little more than a week of her life and repeatedly
failed to take advantage of visitation opportunities. Defendant's persistent
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behavior demonstrated that he was not committed to reunification, as clearly
shown by his unwillingness to undertake the steps needed to make reunification
possible. The judge also reasoned that the grandparents had provided the child
with the only home she had ever known and that it was in her best interests to
stay with them permanently. Judge Miller recognized that this guardianship
litigation had been unduly protracted and that the child deserved permanency
after having lived all four years of her life in uncertainty.
We note, finally, that the father argues that the Division did not adequately
pursue the option of having the child continue to live with her grandparents
while maintaining a parenting relationship with him. The record belies his
contention that the Division failed to support kinship legal guardianship (KLG)
as a feasible permanent alternative. Judge Miller found that the Division had in
fact offered KLG as an alternative to termination of parental rights, but that the
grandparents rejected that option, preferring instead to adopt all three
grandchildren in order to give them all a sense of permanency. 3
3
The father's contention that the trial judge improperly considered hearsay
testimony from the Division caseworker concerning the grandparent's desire to
adopt the child and her two younger half-siblings lacks sufficient merit to
warrant all but brief discussion. The record includes Division case reports that
show that while the grandparents briefly considered KLG in May 2019, they
soon changed their minds and sought to adopt M.M. to afford her the same
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In sum, we conclude that the father has repeatedly demonstrated that he is
both unfit as a parent and unwilling to make the lifestyle changes necessary to
provide a safe and stable environment for his child. 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
father's parental rights was therefore appropriate and necessary in this instance
to afford the child a permanent home in which she will be safe, loved, and cared
for.
To the extent we have not addressed them, any remaining arguments
raised by the father lack sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
degree of permanency as her younger half-siblings. We see no abuse of
discretion in the trial judge's consideration of reliable evidence relating to the
grandparents' desire and intention to adopt M.M. and her two younger siblings.
See A.B., 231 N.J. at 366 (holding that a trial court's evidentiary decisions
regarding hearsay are reviewed under the abuse of discretion standard). See also
Rule 5:12-4(d) and N.J.R.E. 803(c)(6).
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