DCPP VS. A.A. AND E.M., IN THE MATTER OF THE GUARDIANSHIP OF L.M., EZ.M., J.M., AND A.M. (FG-13-0028-18, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-5268-17T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
A.A.,
Defendant-Appellant/
Cross-Respondent,
and
E.M.,
Defendant.
_____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF L.M.
and J.M., Minors,
Respondents/Cross-Appellants,
and
EZ.M. and A.M.,
Minors.
_____________________________
Argued October 2, 2019 – Decided February 6, 2020
Before Judges Ostrer, Vernoia and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FG-13-0028-18.
Lauren Derasmo, Designated Counsel, argued the cause
for appellant/cross-respondent (Joseph E. Krakora,
Public Defender, attorney; Robyn A. Veasey, Deputy
Public Defender, of counsel; Lauren Derasmo, on the
briefs).
Linda Vele Alexander, Designated Counsel, argued the
cause for respondent/cross-appellant J.M. (Joseph E.
Krakora, Public Defender, Law Guardian, attorney;
Linda Vele Alexander, on the brief).
Todd S. Wilson, Designated Counsel, argued the cause
for respondent/cross-appellant L.M. (Joseph E.
Krakora, Public Defender, Law Guardian, attorney;
Meredith Alexis Pollock, Deputy Public Defender, of
counsel; Todd S. Wilson, on the briefs).
Joshua Paul Bohn, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Joshua Paul Bohn, on the
brief).
Danielle Ruiz, Designated Counsel, argued the cause
for minor A.M. (Joseph E. Krakora, Public Defender,
Law Guardian, attorney; Danielle Ruiz, on the brief).
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2
Michele Carton Scenna, Designated Counsel, argued
the cause for minor Ez.M. (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Michele Carton
Scenna, on the brief).
PER CURIAM
Defendant A.A.1 appeals from a final judgment terminating her parental
rights to her four children, L.M. (Linda), born in 2003; Ez.M. (Eddie), born in
2004; J.M. (Jill), born in 2006; and A.M. (Alice), born in 2007. The court also
entered judgment terminating the parental rights of the children's father E.M.
(Earl). Defendant contends the Division of Child Protection and Permanency
(the Division) failed to prove the four prongs of the best interests standard ,
N.J.S.A. 30:4C-15.1(a)(1) to (4), by clear and convincing evidence, and the
court failed to make adequate findings of fact and conclusions of law supporting
its decision. The Law Guardians for Eddie and Alice urge that we affirm the
judgment. The Law Guardians for Linda and Jill argue the judgment should be
reversed. Earl did not appeal from the court's termination order and has not
participated in this appeal. Having considered defendant's, the Division's, and
the Law Guardians' arguments in light of the record and controlling law, we
affirm the termination of defendant's parental rights.
1
We use initials and pseudonyms to protect the privacy of the children.
A-5268-17T3
3
I.
The evidence presented at the four-day guardianship trial established
defendant has a master's degree in biology and holistic health, and in January
2017, she purportedly began an online Ph.D. program in naturopathic medicine.
Following defendant's divorce from Earl in 2009 or 2010, she and her three
daughters lived with her parents G.A. (Gertrude) and C.A. (Carl), and Eddie
resided with Earl.
In 2011, defendant moved with her three daughters to Georgia to seek
employment and what defendant characterized as "a better life." Defendant did
not find adequate employment in Georgia, was twice evicted from homes she
leased, and she requested money for food from Gertrude. Defendant returned to
New Jersey with her daughters, and they again resided with her parents.
In August 2014, the Division received an anonymous referral of physical
abuse by defendant against Linda. Defendant admitted striking Linda with an
open hand as a form of discipline, but the Division determined the referral was
unfounded. Defendant, however, agreed to a case plan prohibiting her use of
any physical discipline.
Conflicts arose between defendant and her parents over the children and
defendant's alleged failure to contribute to the costs of the household. Defendant
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4
agreed to vacate her parent's home in September 2014, but she did not do so.
Gertrude obtained a judgment of eviction against defendant in September or
October 2014. Defendant then moved again to Georgia with her three daughters,
her boyfriend O.H. (Ollie), and his son. She left Eddie in Earl's care in New
Jersey. She notified the Division of the move and that she found employment
in Georgia. Defendant, Ollie, and the children lived with defendant's friend,
with the children sleeping on the floor, but the friend requested they leave. The
Division attempted to assess the children's living arrangements, but defendant
refused to provide an address because "she did not want the case to follow her."
In December 2014, the Division learned defendant and her three daughters
had returned to New Jersey because she could not find employment in Georgia.
Defendant reported she was staying with the children in hotels and friend s'
homes. Gertrude reported that defendant and the children were residing in
Ollie's mother's home.
Defendant allowed her three daughters to return to Gertrude's and Carl's
home for the balance of the school year "while [defendant got] herself together."
Defendant lived elsewhere, and Eddie continued to live with Earl. When the
Division contacted defendant on December 4, 2014, she refused to provide the
address where she resided.
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On December 15, 2014, Gertrude reported to the Division defendant and
Ollie were involved in a domestic violence incident at Ollie's home, and Ollie
used physical force against defendant in front of Eddie. Defendant and Eddie
denied the allegations, and defendant reported she exaggerated a report of
domestic violence involving Ollie so her parents would let her and her daughters
live in their home. The Division investigated the referral concerning the alleged
domestic abuse of defendant by Ollie in front of the children and determined it
was not established.
On December 17, 2014, the court granted Gertrude and Earl joint legal
and residential custody of the three children. The court determined defendant's
"[c]ontinued visitation will place the [children] at risk," and suspended
defendant's visitation with her three daughters. The court did not bar defendant's
visitation with Eddie, who continued to reside with Earl. Earl advised the
Division he and defendant agreed defendant's parents could maintain residential
custody of the three girls. The court directed that the parties comply with all
Division recommendations.
In January 2015, the caseworker reported defendant "is currently homeless
and her address is unknown." In May 2015, the caseworker noted defendant "is
a transient who is rarely in the children's lives and is court ordered not to have
A-5268-17T3
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any contact." By September 2015, Gertrude was unaware of defendant's
location, and Jill and Alice reported they had not had any recent contact or visits
with defendant.
The court entered a September 1, 2015 order granting defendant parenting
time with her daughters supervised by Earl during his parenting time. In
September, the Division learned defendant was residing with a cousin and at
another unknown address. The following month, Gertrude reported to the
Division the cousin supervised a visit between defendant and the children. It
was also reported that defendant had secured employment as a substitute teacher,
and Gertrude was hopeful defendant "might be finally working to turn her life
around."
On March 22, 2016, staff at Linda's school made a referral to the Division,
claiming Linda reported that Earl abused Eddie during the three girls' weekend
visitation at Earl's home. The investigation revealed that Earl had become angry
at Eddie and struck Eddie with a brush. Eddie reported Earl had hit him before,
including on the previous Christmas when Eddie struck him repeatedly with a
cord. The caseworker observed six-and-one-half-inch marks on Eddie's legs that
he reported he received during the Christmas incident. The three girls reported
that Earl hit them as well, and that they feared him.
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On March 24, 2016, the caseworker spoke with defendant, who was at her
parent's home, about the referral. Defendant claimed the marks on Eddie's body
were birthmarks. The caseworker learned defendant had been living in
Philadelphia, but had returned to her parent's home. Gertrude said she intended
to ask defendant to leave that day.
The Division substantiated Earl for abuse or neglect of the four children.
On March 31, 2016, the court granted the Division's application for temporary
custody of the four children, noting defendant and Earl "admitted to hitting their
children" and "[t]here has been domestic violence in the home." The court
suspended all visitation by both parents pending an evaluation of the children ,
and it ordered that the Division inform defendant about domestic violence
counseling. The caseworker reported defendant and Ollie were homeless at that
time. The four children were placed with defendant's parents. At a hearing five
weeks later, the court ordered defendant to participate in domestic violence
counseling and required in-home counseling for Gertrude and the children.
The caseworker scheduled an in-person meeting with defendant at the
Division's office on May 14, 2016, but defendant did not attend, explaining she
lacked transportation. Defendant participated in a May 16, 2016 case
management review hearing by telephone. The court ordered that defendant
A-5268-17T3
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comply with the domestic violence counseling services, and prohibited
defendant and Earl from discussing with the children the reports from their
psychological evaluations when they became available.
A caseworker spoke with defendant on May 23, 2016, and arranged an in-
person meeting for May 31. The caseworker offered to either provide defendant
transportation to the meeting or to hold the meeting in defendant's home.
Defendant declined the offer to meet at her home, did not arrange for the bus
passes the Division offered to make available, and did not attend the meeting.
Defendant also did not attend a scheduled June 13, 2016 case management
review during which the court ordered supervised visitation of the children by
defendant and that the Division provide defendant with bus passes. Defendant
did not pick up the bus passes from the Division. She advised the Division she
had moved to Long Branch, but would not provide her address, supplying
instead only a relative's home as a mailing address.
On June 15, 2016, a Division caseworker reviewed the June 13, 2016 case
management order with defendant over the telephone. Defendant was advised
bus passes were available for her, and that she was required to meet with the
caseworker. Arrangements were made for a June 17 meeting, but defendant did
not appear. The caseworker called defendant and left a message advising that
A-5268-17T3
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the June 13, 2016 order and bus passes would be mailed to her, and that the
caseworker would conduct unannounced visits to defendant's home until
defendant met the caseworker in person. Eight days later, defendant left a
voicemail message for the caseworker advising she no longer lived in Long
Branch, but she did not supply a new address.
The caseworker continued her efforts to contact and meet with defendant.
On June 27, 2016, the caseworker spoke with defendant on the phone, but
defendant refused to provide her address and would provide only a relative's
address where her mail could be sent.
On July 6, 2016, defendant informed the Division she moved to Camden,
but she did not supply an address. She also indicated she could not afford
transportation to meetings with the Division. The Division offered defendant
supervised visits at its offices, but defendant failed to appear for the visits
scheduled for July 6, July 13, July 21, and August 5, 2016. The Division referred
defendant to the YMCA for its supervised visitation program, but defendant
declined that service. At a July 20, 2016 case management review, the court
ordered that defendant would have supervised visitation with the children once
per week at a Division office and required that defendant pick up bus passes
from the Division.
A-5268-17T3
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A caseworker spoke with defendant on August 4, 2016, reminding
defendant it was critical she attend the court hearings. Nonetheless, defendant
did not appear for an August 8 case management review hearing where the court
continued its prior orders.
The Division approved defendant for visitation supervised by Gertrude
beginning on August 12, 2016. Through the end of 2016, defendant attended
twelve supervised visits with the children and missed seven other scheduled
visits.
In mid-September, defendant advised the caseworker she continued to live
in "South Jersey," but she refused to provide her address. The caseworker
advised defendant it was essential she attend domestic violence counseling, but
defendant asserted the program the Division had referred her did no t respond to
her calls. The caseworker referred defendant to another counseling service.
Defendant failed to attend two scheduled meetings with the caseworker in
November 2016. The Division received an unconfirmed report defendant was
residing in Philadelphia, but it did not have defendant's address.
The court completed a three-day fact-finding hearing on December 7,
2016. The court found Earl physically abused the four children through "a
pattern of excessive corporal punishment" using various objects.
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Defendant first met the Division caseworker in late January 2017, at a
family review meeting. Defendant had completed domestic violence counseling
by that time. Defendant failed to attend the next scheduled meeting with the
caseworker, but she met with the caseworker on February 28, 2017. The
caseworker again informed defendant it was important for her to attend Division
meetings and court proceedings, and that transportation services were available.
By March 17, 2017, defendant's phone stopped accepting calls from the
caseworker. On March 21, defendant informed the caseworker that she was
moving to Georgia the following day, and that she had made living arrangements
there. She did not provide the caseworker with a Georgia address, but she
explained she planned to reunite with her children in Georgia after the school
year ended. Defendant returned to New Jersey for a visit in late April 2017, met
with the caseworker, and said she had secured a full-time teaching position in
Georgia and would arrange for the children to live with her. Defendant lived in
Georgia until the beginning of September 2017, and she did not have any visits
with the children during the time she resided there.
Defendant participated by phone in a May 12, 2017 permanency hearing.
The court found termination of parental rights "appropriate and acceptable," but
also found there was a dual goal of reunification. The court determined it was
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not safe to return the children to their parents based on Earl's lack of cooperation
in parenting counseling and because defendant "lives in Georgia and has not
held herself out as a resource." The court cited the Division's provision of
services including "psychological evaluation, anger management, therapeutic
visitation, [and] referrals for services."
The court directed that the Division file for guardianship within sixty-days
and assess defendant's home in Georgia. The court ordered defendant to provide
her address to the Division and keep in contact with the caseworkers. The court
allowed defendant visitation, including overnights, with a supervisor approved
by the Division.
On July 13, 2017, defendant advised the Division her employment in
Georgia was part-time, but would become full-time by month's end. She
reported having adequate housing — a purported "hold" on a four-bedroom
condominium — but she did not have a lease and did not otherwise provide the
Division with documentation related to her housing or employment.
On July 19, 2017, the Division filed the guardianship complaint , and, on
the same day, the court issued an order requiring defendant and Earl to show
cause why the court should not terminate their parental rights. By August 18,
defendant had not commenced any full-time employment, and she refused to
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provide any paystubs or a lease agreement for her housing. Three weeks later,
the Division learned defendant had returned to New Jersey and was living with
a friend at an address defendant provided to the caseworker. In a September 14,
2017 order, the court directed that defendant and Earl submit to psychological
and bonding evaluations and comply with services; Gertrude and Carl to submit
to bonding evaluations; and defendant to continue supervised visitation.
Defendant did not attend a scheduled September 27, 2017 bonding
evaluation with Dr. Alan Lee, despite being reminded of the scheduled
evaluation and offered transportation to the evaluation by the caseworker.
Defendant's bonding evaluation by Dr. Lee was rescheduled for November 9,
2017. During a case management review on October 31, 2017, defendant's
counsel advised the court defendant obtained employment as a teacher that
precluded her from attending the scheduled bonding evaluation. The court
observed schools were closed on November 9 and ordered defendant to attend
the evaluation. The court denied defendant's request for monetary assistance for
a security deposit because reunification was not within the termination plan.
The Division's counsel noted "for several months now . . . [defendant] has made
no effort to really do anything that the Division has asked of her, except for the
visitation that she does on her own."
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Defendant did not attend the November 9 bonding evaluation, and
defendant's psychological and bonding evaluations with Dr. Lee were
rescheduled for February 27, 2018. During a January 2018 telephone call,
defendant refused to schedule a meeting with the caseworker. Defendant met
with Dr. Lee on February 27, 2018, for psychological and bonding evaluations.
During the guardianship trial, three caseworkers testified concerning the
Division's seven-year involvement with defendant, Earl, and the four children.
Gertrude, Linda, and Alice also testified. Dr. Lee, who was qualified without
objection as an expert in the field of psychology, also testified. Defendant and
Earl did not attend the trial.
Dr. Lee explained defendant has a "fairly limited" grasp of parenting and
of the "range of possible ways of proper discipline for a child" between ten and
fourteen years old. Defendant admitted to Dr. Lee she had been aware Earl used
objects, including a cord, to hit the children, but she made no "specific
condemnation of that type of behavior." Defendant expressed hope for
reunification, but "she did not have a specific place in mind" or accommodations
suitable for the children, although she said she would soon know where she
could secure housing.
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Dr. Lee diagnosed defendant with a "personality disorder, not otherwise
specified [(NOS)]," "with narcissistic, avoidant, and paranoid traits or features."
He found defendant had some impulsive or immature tendencies and "some
rather entrenched and maladaptive personality and character traits," including a
significant "coping deficit" that resulted in difficulty with "more complex tasks."
He also found defendant appeared "quite self-centered and . . . narcissistic" and
focused "heavily on herself and her own views and beliefs," with "an extremely
high view of herself." Defendant saw "herself as not having any problems" in
need of correction and, relatedly, was skeptical of the professional treatment she
has been offered.
According to Dr. Lee, defendant tested high on the "dominance scale,"
which typifies a "very rigid" personality that, at times, could lead to decision-
making consistent with "her strictly held beliefs, which may or may not be
accurate." Dr. Lee found defendant tending towards "paranoia and hyper-
vigilance," and he noted those traits were consistent with significant "anger and
resentment," an inclination to "project blame onto others, and see[ing] oneself
as the victim of unjust and unfortunate situations."
Dr. Lee opined that defendant's entrenched traits would likely influence
her judgment about the children's needs and lead "her to be rather inconsistent
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and unstable in different areas of her life." He explained defendant likely could
not offer "the kind of consistency, protection, and support that her
children . . . would need at the time, and within the foreseeable future," and she
would likely not consent to treatment, given her mistrust and inflated self-image.
Dr. Lee testified defendant "does not see the problem in her; she sees the
problem in others, and . . . she believes that others are trying to thwart her
successes [and], interfere with her unique, special abilities . . . ." He did not
recommend defendant's reunification with the children.
Based on the bonding evaluation, Dr. Lee concluded that, although Linda
and Jill said they wished to live with defendant, none of the children "had a
significant and positive" attachment to her, and that termination of [defendant's]
parental rights posed "a low risk [of] . . . severe and enduring harm." Dr. Lee
testified each child had a fairly strong bond with Gertrude; Jill, Alice, and Eddie
had a fairly strong bond with Carl; and Linda had a "moderately positive
attachment" to Carl. Dr. Lee explained that severing the children's relationships
with their grandparents would likely inflict severe and lasting harm. Noting the
importance of permanency in a healthy childhood, Dr. Lee opined that adoption
by Gertrude and Carl would better achieve that goal than kinship legal
guardianship.
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Gertrude testified that she and Carl sought adoption as opposed to kinship
legal guardianship, while insisting on her commitment to preserve the children's
bond with their mother, whom she acknowledged they loved. She also offered
details of what she perceived as her daughter's lack of stability and poor
parenting.
On cross-examination, Gertrude explained she would be unable to allow
the children to remain in her home should adoption prove impossible because
she was afraid of Earl, whom she claimed had threatened her and Carl in the
past. Gertrude confirmed that, if "denied the right to adopt," she would "ask
[the] Division to take the children away." She later stated "[i]t would concern
[her] greatly" if the children ended up in foster care, but she needed to consider
her's and her husband's safety. Although she had not had contact with Earl in at
least a year, she feared he would show up at her house. She believes adoption
will protect her and Carl from Earl, and the children from Earl's abuse and
defendant's irresponsibility. She also testified that although she understood she
and Carl would be entitled to receive monetary subsidies as a result of their
adoption of the children, they would adopt even if no financial assistance was
available.
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Linda testified she wished to live with her mother and opposed adoption
by her grandparents, but she "would just be fine staying with" Gertrude if
defendant could not have custody. Linda testified she had a strong bond with
defendant and relied on defendant for help with her homework.
Alice testified that, when she and her sisters briefly stayed in Georgia,
defendant "didn't have enough money to take care of [the children] and then
[they] had to move back to [her] grandma's house." Alice explained defendant
did not live with them because she could not "really tak[e] care of us, for like
clothes and stuff and my grandma had to do that, I think."
Alice also explained defendant did not spend "a lot" of time with her, Jill,
or Eddie, but instead focused on Linda during defendant's visits with the
children. Alice testified she had no time alone with her mother, and she
preferred to remain with her grandparents, even if her mother could not join
them there. Alice did not want to repeat her experience in Georgia where
defendant did not "have enough" and they were forced to move out.
The judge rendered his decision from the bench, finding defendant
abandoned her children, left them in the care of her parents, Gertrude and Carl,
and never provided the children with a reliable parental figure. The court also
found defendant failed to provide the children with a stable environment and, as
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a result, over many years and for most of the children's lives, defendant's parents
solely provided the children with consistent care and a safe and secure home.
The court rejected the notion defendant's parents were motivated to care for the
children by the potential receipt of monetary benefits, and found Gertrude and
Carl "raised, controlled, . . . [and provided] a stable environment" and cared for
the children whenever it was necessary. The court noted defendant's parents
provided care and support for the children since each was born, and that they
did so without any interest in obtaining monetary benefits. The court also found
defendant relied on her parents to care for her four children.
The court reasoned that although defendant was educated and a good
student, she lacked stability in her life. The court accepted Dr. Lee's testimony
that defendant suffers from personality disorders, is unstable, and lacks the
ability to care for her children until she achieves stability in her own life. The
court further noted that although the children may love defendant and have
"some bonds" with her, defendant never functioned as their primary caregiver
or was a stable presence in their lives.
The court found no evidence allowing a finding that the children could
feel confident defendant would either supply a safe, secure, stable environment
or provide for their daily needs. The court noted that defendant "always take[s]
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the position" she did not have to provide for the children's needs because her
parents were available to do so.
The court cited defendant's consistent instability, explaining that although
she claimed to have had great jobs, she did not have an apartment or money to
support her children and never demonstrated any ability to care for them. The
court also noted defendant actually spent little time with the children, visiting
them "once a week, or once every two weeks" for a couple of hours. The court
found defendant's actions confirmed Dr. Lee's testimony that defendant suffers
from severe personality disorders, is unstable, and is incapable of caring for her
children.
The court explained the "[c]hildren are entitled to permanency, security,
to know where they're living, who they're living with, [and] where [they] expect
to be." The court found Gertrude's and Carl's home "is the only home [the
children] really have had that they know to be secure and reliable," and the
children's only chance of obtaining permanency is by terminating defendant's
parental rights and allowing defendant's parents to adopt them.
Thus, the court found the Division established each of the four prongs of
the best interests standard by clear and convincing evidence, and entered an
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order terminating defendant's parental rights to the four children. This appeal
followed. Defendant offers the following arguments for our consideration:
[POINT I]
THE APPELLATE DIVISION MUST REVERSE THE
JUDGMENT OF GUARDIANSHIP BECAUSE [THE
DIVISION] FAILED TO PROVE THAT THE
MOTHER'S RELATIONSHIP WITH HER
CHILDREN WAS HARMFUL TO THEM NOR THAT
TERMINATION OF HER PARENTAL RIGHTS AND
ADOPTION BY THE GRANDPARENTS WHO HAD
LOST CUSTODY OF THEIR OWN CHILD WOULD
SERVE THEIR BEST INTERESTS.
A. A.A. Has Not Harmed Her Children Within The
Meaning Of [N.J.S.A.] 30:4C-15.1a(1).
B. The Trial Court's Decision That The Second Prong
Of The Statute Was Satisfied Was Not Supported By
Substantial, Credible Evidence.
C. The Record Does Not Contain Sufficient Evidence
To Support A Finding That [The Division] Met Its
Burden Of Proof Under The Third Prong Of The
Statute.
1. [The Division] made no effort to reunify mother and
children and admitted it failed to even offer services.
2. The trial court did not consider alternatives to
termination of A.A.'s parental rights.
D. The Conclusion That Termination Would Not Do
More Harm Than Good Was Not Supported By The
Evidence.
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II.
Our review of a trial court order terminating parental rights is limited.
N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "A
Family Part'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 Child Prot. & Permanency v. K.T.D., 439 N.J. Super.
363, 368 (App. Div. 2015) (citing N.J. Div. of Youth & Family Servs. v. F.M.,
211 N.J. 420, 448 (2012)). "We accord deference to factfindings of the family
court because it has the superior ability to gauge the credibility of the witnesses
who testify before it and because it possesses special expertise in matters related
to the family." F.M., 211 N.J. at 448. This enhanced deference is particularly
appropriate where the court's findings are founded upon the credibility of the
witnesses' testimony. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J.
Super. 148, 172 (App. Div. 2005) (citing Rova Farms Resort, Inc. v. Inv'rs Ins.
Co., 65 N.J. 474, 484 (1974)).
"Only when the trial court's conclusions are so 'clearly mistaken' or 'wide
of the mark' should an appellate court intervene and make its own findings to
ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs.
v. E.P., 196 N.J. 88, 104 (2008) (quoting G.L., 191 N.J. at 605). However, no
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deference is given to the trial court's "interpretation of the law," which we
review de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012).
A parent has a constitutionally protected right "to enjoy a relationship with
his or her child." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). That
right, however, "is not absolute" and is limited "by the State's parens patriae
responsibility to protect children whose vulnerable lives or psychological well-
being may have been harmed or may be seriously endangered by a neglectful or
abusive parent." F.M., 211 N.J. at 447. A parent's interest must, at times, 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).
When terminating parental rights, the court must consider the "best
interests of the child." K.H.O., 161 N.J. at 347. A petition to terminate parental
rights may only be granted if the following four prongs enumerated in N.J.S.A.
30:4C-15.1(a) are established 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
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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.
[N.J.S.A. 30:4C-15.1(a)(1)-(4).]
"The four criteria enumerated in the best interests standard are not discrete
and separate; they relate to and overlap with one another to provide a
comprehensive standard that identifies a child's best interests." N.J. Div. of
Youth & Family Servs. v. I.S., 202 N.J. 145, 166-67 (2010) (quoting N.J. Div.
of Youth & Family Servs. v. P.P., 180 N.J. 494, 506-07 (2004)). "[T]he
cornerstone of the inquiry [under N.J.S.A. 30:4C-15.1(a)] is not whether the
biological parents are fit but whether they can cease causing their child harm."
In re Guardianship of J.C., 129 N.J. 1, 10 (1992).
III.
Prior to addressing defendant's and Linda's and Jill's respective Law
Guardian's claim there is insufficient evidence supporting the court's findings as
to the four prongs of the best interests standard, we consider the assertion that a
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reversal or remand is required because the court failed to make sufficient
findings of fact. See R. 1:7-4. To be sure, the court's findings are succinct and
generally stated, but we are not convinced the court's findings are inadequate to
support its decision. Our careful and thorough review of the evidence and
testimony presented during the trial reveals very few disputed facts, and the
judge's findings and conclusions are amply supported by the record. See, e.g.,
In re Adoption of a Child by J.D.S., 353 N.J. Super. 378, 396 (App. Div. 2002)
(finding that "[w]hile it would have been preferable for the trial court to have
made more detailed findings of fact, our review of the record satisfies us that
the evidence supported the trial court's conclusion under the best interest of the
child standard").
A.
Defendant and the Law Guardians for Linda and Jill assert that there was
insufficient evidence supporting the court's finding the Division presented clear
and convincing evidence satisfying the first and second prongs of the best
interests standard. Under the first prong, 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). The first prong
focuses on the negative effect the parent-child relationship has upon the child's
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26
safety, health, and development. K.H.O., 161 N.J. at 348. The Division is not,
however, required to show the child was physically harmed; evidence the child
suffered emotional or psychological harm is sufficient. In re Guardianship of
K.L.F., 129 N.J. 32, 43-44 (1992).
To satisfy the second prong, the Division must establish "[t]he 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." N.J.S.A. 30:4C-15.1(a)(2). The
court must determine whether the parent has overcome the harms that endanger
the child and whether the parent is able to prevent further harm from the parental
relationship. K.H.O., 161 N.J. at 348-49.
"While the second prong more directly focuses on conduct that equates
with parental unfitness," the first and second prongs "are related to one another,
and evidence that supports one informs and may support the other as part of the
comprehensive basis for determining the best interests of the child." In re
Guardianship of DMH, 161 N.J. 365, 379 (1999). A "[c]ourt need not wait to
act until a child is actually irreparably impaired by parental inattention or
neglect." Id. at 383.
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Here, the evidence clearly and convincingly established defendant's
failure to provide her four children with a permanent, safe, and stable home
caused the children harm and will delay the permanent placement in a safe and
secure home to which the children are entitled. See ibid. (affirming trial court's
determination that "a delay in establishing a stable and permanent home will
cause harm to" the children). Moreover, the evidence showed defendant's
extended and ongoing failure to provide the children with a safe and secure home
resulted in "the development of a stronger, 'bonding relationship' to [Gertrude
and Carl], the severing of which [will] cause profound harm . . ." to each of the
children. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582,
592 (App. Div. 1996); see also N.J. Div. of Youth & Family Servs. v. P.P., 180
N.J. 494, 507 (2004) (explaining the reunification process should not further
delay a child's permanent placement or cause serious harm by severing the bond
between the child and a foster family).
Dr. Lee testified there was a significant risk Eddie, Jill, and Alice would
suffer from "severe and enduring harm" if their relationship with either Gertrude
or Carl was terminated, and Linda would suffer the same harm if her relationship
with Gertrude terminated. Dr. Lee did not believe Linda would suffer significant
harm if her relationship with Carl terminated. In any event, we are convinced
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28
the evidence supports the court's determination the Division presented clear and
convincing evidence of harm to the children and an ongoing risk of harm to
satisfy the first prong of the statutory standard.
The evidence similarly supports the court's finding under the second
prong, which is established by evidence of "parental dereliction and
irresponsibility, such as the parent's continued . . . inability to provide a stable
and protective home, [or] withholding of parental attention and care." K.H.O.,
161 N.J. at 353. Defendant rightly boasts of her educational accomplishments
and of her apparent potential for employment as a teacher or in another
professional position, but the evidence shows she is either unwilling or unable
to apply her talents and abilities for the benefit of her children.
For at least four years, defendant lived a life of unfulfilled promise and
promises, chose not to cooperate with the Division, and failed to provide her
children with a safe, secure, and permanent home. Instead, she placed that
burden on her parents, Gertrude and Carl, and they unfailingly met the burden.
Defendant's actions and failures reflect an "inability to provide a stable and
protective home," see K.H.O., 161 N.J. at 353, consistent with Dr. Lee's
unrefuted testimony that, despite defendant's intelligence, her pervasive
"maladaptive personality and character traits" render her unable to serve "as an
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29
independent caretaker" of her children at the time of trial and in the foreseeable
future. The record lacks any evidence to the contrary. See N.J. Div. of Youth
& Family Servs. v. A.W., 103 N.J. 591, 616 (1986) (finding lack of evidence
parents "would be able to eliminate the potential for harm to their children in
the near future" supports a finding the Division satisfied its burden of
establishing the second prong of the best interests standard).
B.
Prong three "contemplates efforts that focus on reunification of the parent
with the child." K.H.O., 161 N.J. at 354. The Division satisfies its burden under
the third prong by proving it "made reasonable efforts . . . to help the parent
correct the circumstances which led to the child's placement outside the home"
and considered alternatives to termination of parental rights. N.J.S.A. 30:4C-
15.1(a)(3). However, the reasonableness of the Division's efforts is not
measured by whether its efforts were successful in bringing about reunification
of the parent and child. DMH, 161 N.J. at 393.
The reasonableness of the Division's efforts turns on the circumstances of
the case, but the Division should ordinarily: (1) cooperate with the parent in
devising an appropriate plan for services; (2) provide agreed-upon services; (3)
keep the parent abreast of the child's progress and health; and (4) facilitate
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visitation as appropriate. N.J.S.A. 30:4C-15.1(c); DMH, 161 N.J. at 390.
Appropriate services may include "day care, housing assistance . . . parenting
classes, [and] financial assistance." Id. at 390-91. The services should "foster
and maintain the bond between the parent and child" in the hopes of
reunification by promoting visitation and by educating the parent in effective
caretaking. Id. at 390.
Defendant claims the Division's "biggest failing in providing reasonable
[services] involved visitation." She argues the children were removed "solely
for issues related to" Earl, but thereafter the court required that all of her
visitation be supervised. She also contends the Division did not consid er
alternatives to termination, such as kinship legal guardianship, and that the
Division did not otherwise provide services and admitted to failing to provide
reasonable services.
The record does not support defendant's claims, and it establishes the
Division provided reasonable services under the circumstances, including
transportation services to Division meetings, court appearances, and visitation;
therapeutic visitation; domestic violence counseling; supervised visitation;
psychological and bonding evaluations; and housing assistance. The Division
also provided the children with therapy; mentorship programs; financial support;
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31
and trauma counseling to address their experiences "moving around and being
unstable" and witnessing domestic violence.
Defendant argues supervised visitation was unwarranted, but ignores the
court required supervised visits until the Division could conduct psychological
evaluations to "find out what services are necessary . . . and also determine
what's safe for the children as far as visitation." The Division identified "red
flags" leading to its request for an evaluation before allowing unsupervised
visits, including defendant's refusal to allow the children to continue therapy,
and her claim reunification was all the children required. Defendant refused to
cooperate with supervised visitation, declined a Division-facilitated supervised
visit while she resided in Georgia, and did not participate in the therapeutic
visitation the Division made available through the YMCA.
Moreover, defendant attended the arranged visitations inconsistently, and
when Gertrude was approved as a visitation supervisor, defendant had "hardly
any contact" in person with the children — although she corresponded through
phone calls or text messages — because she "didn't think she needed to be
supervised by or have therapeutic visits." Even after defendant and Gertrude
began scheduling visits at her home without the Division's involvement,
defendant did not visit as often as she could — about three times a week — even
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32
though she could have visited daily. The Division limited visitation to twice per
week after Gertrude reported defendant would fail to notify her in advance of a
visit, or would arrive early or late to a visit, and, following that change, Gertrude
reported defendant missed several weeks of visitation entirely.
Defendant's resistance to the Division's efforts to obtain an evaluation
which delayed her opportunity for unsupervised visits; her inconsistent
attendance at the visitations that were arranged; and her months-long absence
from New Jersey during which she had no visitation with the children undermine
her assertion the Division failed to provide reasonable visitation services.
Preserving a parent's rights ceases to be "reasonable" when, among other factors,
the parent refuses services. A.W., 103 N.J. at 610 (citation omitted).
The Division also considered alternatives to termination, including
kinship legal guardianship. See id. at 609; P.P., 180 N.J. at 512. However, a
ready and willing relative is a prerequisite for that option. A.W., 103 N.J. at
609.
Gertrude testified she and Carl sought to adopt the children and, if that
adoption was not available, they would no longer care for the children. Thus,
kinship legal guardianship was not an available option. The court did not credit
Gertrude's testimony, and defendant argues the court erred in its credibility
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finding, but we defer to the court's determination, which it supported with
detailed findings. See G.L., 191 N.J. at 605; E.P., 196 N.J. at 104. Further,
where, as here, "the permanency provided by adoption is available, kinship legal
guardianship cannot be used as a defense to termination of parental rights." P.P.,
180 N.J. at 512-13 (citing N.J.S.A. 30:4C-15.1(a)(3)).
Defendant argues she "was ready to take her children at the time of trial,"
but that, "even assuming she was not, there is no reason why the family could
not continue as they had . . . with the children remaining in the grandparents'
custody without termination of parental rights." That option was rejected for
reasons supported by the record. As noted, continuing the status quo would
prolong the children's harm by delaying the permanency to which they are
entitled. In addition, defendant opted not to appear at trial and thereby offered
no testimony or evidence she either is willing or able to exercise physical
custody of the children, provide them with a safe and secure home, and actually
care for them. And the record evidence otherwise clearly and convincing ly
establishes she is not.
The Division acknowledged it offered domestic violence counseling for
the first time in January 2017, but defendant refused those services and opted to
obtain the counseling, which she completed, on her own. The Division also
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informed defendant she could not regain custody of her children until s he had
adequate housing. Defendant, however, never requested housing assistance and
always assured the Division "she was working on getting herself housing,
employment." The Division requested paystubs confirming her employment and
the lease for property she said she rented in Georgia, but defendant never
provided the requested information.
In October 2017, after spending months in Georgia, defendant reported
she obtained a teaching position in Newark. The caseworker requested
defendant's paystubs, but defendant did not produce them until May 2018, just
prior to the commencement of the guardianship trial. A caseworker explained
the requested information was required before the Division could provide
housing assistance, but defendant refused to provide the information. The
evidence further established that, despite the Division's repeated offers to meet
with her in person, defendant consistently failed to attend meetings, maintain
regular contact with case workers, and keep the Division informed of her current
address and contact information.
Defendant contends the Division "offered [her] absolutely no roadmap to
follow in which to regain her children," but the Division's provision of services
here was necessarily limited by defendant's recalcitrance, lack of cooperation,
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unavailability, and consistent resistance. Thus, the record supports the court 's
determination the Division provided reasonable services under the
circumstances presented and sustained its burden under the third prong of the
best interests standard.
C.
Under the fourth prong of the best interests standard, the Division must
present 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); see also K.H.O., 161
N.J. at 355. The Division need not prove an absence of harm — termination is
inherently damaging — but it must demonstrate that termination will help at
least as much as it hurts the child. K.H.O., 161 N.J. at 355. The court must
"balance the relationship of [] the [biological] parent and the child, and
determine whether the child will suffer greater harm from terminating the child's
ties with" his or her biological parent than from permanent disruption of the
child's relationship with a resource parent. N.J. Div. of Youth & Family Servs.
v. A.G., 344 N.J. Super. 418, 435 (App. Div. 2001).
Although the fourth prong is centered broadly on "harm," its principal
focus is the harm of impermanence. A.W., 103 N.J. at 610. Termination ought
lead to "a permanent resolution of the child's status," and a child's relationship
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36
with a parent should not be severed without "a more promising
relationship . . . [in] [his or her] future." Ibid. (citation omitted) (first alteration
in original). By terminating a parent's rights, the State implicitly promises the
child a permanent home. Id. at 611. The risk of that promise going unfulfilled
may outweigh the harm a child suffers by remaining with a parent. Ibid.
Where, as here, putative adoptive parents are already involved, the fourth
prong requires proof that remaining in the resource home will provide the
children with greater stability, without countervailing harm, than the parent.
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." Ibid. (quoting J.C., 129 N.J. at 25). Such expert opinion should
follow a "full opportunity to make a comprehensive, objective, and informed
evaluation of the child's relationship with both the natural parents and the foster
parents." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007)
(quoting J.C., 129 N.J. at 19).
Here, the Division presented ample and unrefuted evidence that
termination of defendant's parental rights will not do more harm than good.
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Gertrude and Carl are able and caring resource parents, and they have provided
the children with the only consistently stable and secure home they have known.
Dr. Lee found strong bonds between the children and Gertrude, and between Jill,
Alice, and Eddie and Carl, and he determined severing those bonds would likely
cause the children serious and lasting harm. By contrast, Dr. Lee found that
none of the children enjoys a similarly strong bond with defendant, and that each
child enjoys only a neutral bond with her. Thus, Dr. Lee reasoned termination
of defendant's parental rights entailed a low risk of "severe and enduring harm."
He also opined that the children's best prospect for achieving permanency was
adoption by Gertrude and Carl.2 Defendant and the children offered no expert
opinion or other evidence refuting Dr. Lee's testimony.
We reject any claim that Gertrude and Carl are motivated by an interest in
the monetary stipends provided by the Division for their care of the children.
The Division originally became involved with the family in response to a claim
of physical abuse, and the court granted joint custody to the grandparents and
Earl in 2014 following allegations of violence involving defendant's boyfriend.
2
In her reply brief, defendant asserts that following trial, Linda was " thrown
out" of the grandparents' house and is living in a "shelter." We do not consider
the claim because it is unsupported by any competent record evidence, and there
was no motion to supplement the record on appeal. See R. 2:6-2.
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38
The grandparents gained full custody of the children after it emerged that Earl
physically abused the children. The record is simply bereft of any evidence
Gertrude and Carl, who have provided consistent care and a safe and secure
home to the children for many years, are motivated by anything other than the
best interests of the children and their desire to provide the permanent hom e
defendant has demonstrated she is either incapable or unwilling to provide to
her children.
We have considered that Linda and Jill prefer not to be adopted by their
grandparents, but their preferences do not outweigh the court's well-founded
determination that termination of defendant's parental rights are in their best
interests. We appreciate that they would prefer a situation where their mother
provides the safe, secure, and permanent home to which they are entitled, but
the record sadly shows defendant is either unwilling or unable to do so, and that
their grandparents have, and continue, to provide the only realistic opportunity
for permanency. As a result, their preferences do not outweigh the clear and
convincing evidence establishing that termination of defendant's parental rights
is in each child's best interests.
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D.
We last address Alice's request for continued "contact with [defendant]
after termination." She relies on In re D.C., 203 N.J. 545, 551 (2010), which
held that an adoptive parent has no absolute "parental autonomy" to cause harm
to the adopted child by preventing visitation by the child's biological family
members. An adopted child retains the right to visits by his or her natural
parents. N.J.S.A. 9:6B-4(e). Moreover, the court may grant a grandparent's or
sibling's application to visit an adopted child upon proof that visitation would
serve the child's best interests, based on several enumerated factors. N.J.S.A.
9:2-7.1(a)-(b). See Moriarty v. Bradt, 177 N.J. 84 (2003) (addressing the
standard grandparents must meet under N.J.S.A. 9:2-7.1 so as not to infringe on
parents' fundamental right to raise their children as they see fit).
Gertrude testified she intends to allow defendant contact with the children
because she wants to work with defendant as "a team." Acknowledging "the
children love their mother" and "want her involved in their life," Gertrude
testified she aimed "to support that relationship and do whatever it takes to keep
[t]he children in the best quality of life possible with their mother very present."
In any event, Alice's claimed interest in visitation with her mother following
termination of defendant's parental rights is not an issue before us on this appeal.
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We therefore do not address the merits of the claim other than to note any such
request must be made to the Family Part in the first instance.
Affirmed.
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