DCPP VS. T.W.K.T. AND D.B., IN THE MATTER OF THE GUARDIANSHIP OF I.M.B. AND A.B. (FG-11-0054-18, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-4820-18T4
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
T.W.K.T.,
Defendant-Appellant,
and
D.B.,
Defendant.
__________________________
IN THE MATTER OF THE
GUARDIANSHIP OF I.M.B.
and A.B.,
Minors.
__________________________
Submitted April 20, 2020 – Decided May 13, 2020
Before Judges Geiger and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FG-11-0054-18.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Laura M. Kalik, Designated Counsel, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae, Assistant Attorney General,
of counsel; Joann M. Corsetto, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; James Dey Harris,
Designated Counsel, on the brief).
PER CURIAM
Defendant T.W.K.T. (T.T.),1 the biological mother of I.M.B. (Ian) and
A.C.B. (Audrey), appeals from the June 19, 2019 judgment of guardianship
terminating her parental rights to the children. 2 T.T. contends that the Division
of Child Protection and Permanency (Division) failed to prove the third and
fourth prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. For
1
We refer to the parties by initials and the resource parents and children by
initials and pseudonyms to preserve their confidentiality and for ease of
reference. R. 1:38-3(d)(12).
2
Defendant D.B. is Ian and Audrey's biological father. He has not appealed
the termination of his parental rights or participated in this appeal.
A-4820-18T4
2
the following reasons, we disagree and affirm the termination of T.T.'s parental
right to Ian and Audrey.
I.
We will not recite in detail the history of the Division's interactions with
Ian and Audrey and their parents. Instead, we incorporate by reference the
factual findings and legal conclusions contained in Judge Wayne J. Forrest's
comprehensive June 19, 2019 written opinion. We summarize only the salient
facts pertinent to our discussion.
T.T. has five biological children, none of whom are in her care or custody.
Ian was born on December 29, 2015. He was placed in the care and custody of
the Division two days after his birth. In January 2016, T.T. participated in
several supervised visits with Ian. During one visit, T.T. suggested that Ian be
placed with J.H. (Janet), who was already caring for T.T.'s stepsister.3 For the
remainder of 2016, T.T. "had inconsistent visitation with [Ian]" and D.B. "barely
visited [Ian] at all."
T.T.'s inconsistent visitation continued in 2017; D.B. had no visits with
Ian that entire year. Audrey was born on December 25, 2017. She has spent
3
Janet is the paternal aunt of M.T., T.T.'s eighteen-year-old stepsister.
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3
almost her entire life living in the home of her resource parent, S.M. (Sophia).
During 2018, D.B. did not visit Ian or Audrey; T.T. visited sporadically. That
pattern continued in 2019 until the guardianship trial. In total, Ian has spent all
but his first few months living in the home of his resource parent Janet, who
desires to adopt him. Likewise, Sophia desires to adopt Audrey. 4
On May 23, 2018, the Division filed a guardianship complaint to terminate
the parental rights of T.T. and D.B. as to both Ian and Audrey. The trial court
conducted a three-day trial. The Division produced three witnesses: Justin
Leonard, a Division caseworker; Stephanie Holliday, a Division adoption
worker; and David R. Brandwein, Psy.D., a licensed psychologist. D.B. did not
appear for trial. T.T. did not attend trial except for appearing telephonically for
the Division's closing argument. Neither defendant produced any witnesses nor
introduced any evidence.
Judge Forrest found Leonard and Holliday to be credible witnesses "based
on their firsthand knowledge of the facts of this case, their ability to thoroughly
recount key points of their investigation and testify consistent with the evidence,
and their professional demeanor and manner in which they testified on both
direct and cross[-]examinations." The judge likewise found Dr. Brandwein, who
4
Sofia previously adopted T.T.'s other son, L.T.
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was stipulated as an expert in psychology, to be a credible expert witness "based
on his thorough understanding of the facts of the case, candid responses to
questions posed to him, and his education, training and extensive experience as
a licensed psychologist." Dr. Brandwein was the only expert to testify during
trial.
In his comprehensive written opinion, Judge Forrest reviewed the
evidence presented at trial and concluded that: (1) the Division had proven all
four prongs of the statutory best interests test by clear and convincing evidence,
N.J.S.A. 30:4C-15.1(a); and (2) termination of T.T. and D.B.'s parental rights
was in Ian and Audrey's best interests. This appeal followed.
T.T. raises the following points for our consideration:
I. THE TRIAL COURT ERRED IN TERMINATING
[T.T.'S] PARENTAL RIGHTS BECAUSE THE
STATE FAILED TO ESTABLISH BY CLEAR AND
CONVINCING EVIDENCE THAT TERMINATION
WAS IN THE BEST INTERESTS OF THE
CHILDREN UNDER N.J.S.A. 30:4C-15 AND
N.J.S.A. 30:4C-15.1.
A. THE COURT ERRED IN HOLDING THAT
DCPP PROVED THAT IT HAD MADE
REASONABLE EFFORTS TO PROVIDE
SERVICES TO [T.T.], PURSUANT TO PART
ONE OF PRONG THREE, BECAUSE DCPP'S
OWN EXPERT POSITED THAT [T.T.] HAD
NOT BEEN PROVIDED APPROPRIATE
MENTAL HEALTH TREATMENT.
A-4820-18T4
5
B. THE COURT FAILED TO SUFFICIENTLY
ADDRESS ALTERNATIVES TO
TERMINATION, PURSUANT TO PART TWO
OF PRONG THREE AND PRONG FOUR,
SPECIFICALLY BY NOT EXPLORING
[KINSHIP LEGAL GUARDIANSHIP] OR
PLACEMENT WITH OTHER RELATIVES.
1. The court did not properly analyze
alternatives to termination or whether
termination would not do more harm than good
because [kinship legal guardianship] was never
adequately explored.
2. DCPP failed to reasonably explore placement
with other relatives.
II.
We begin our discussion with the well-settled legal framework regarding
the termination of parental rights. Parents have a constitutionally protected right
to the care, custody, and control of their children. Santosky v. Kramer, 455 U.S.
745, 753 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)
(citations omitted). That right is not absolute, however. N.J. Div. of Youth &
Family Servs. v. R.G., 217 N.J. 527, 553 (2014) (citing K.H.O., 161 N.J. at 346).
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) (citing N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596,
605 (2007)). To effectuate these concerns, the Legislature created a statutory
A-4820-18T4
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test to determine when it is in the child's best interest to terminate parental rights,
which requires the Division to prove all 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;
(3) The [D]ivision 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); see also N.J. Div. of Youth
& Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986)
(reciting the four standards later codified in Title 30).]
The four prongs "are neither discrete nor separate. They overlap to
provide a composite picture of what may be necessary to advance the best
interests of the children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.
A-4820-18T4
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261, 280 (2007) (emphasis omitted) (quoting N.J. Div. of Youth & Family Servs.
v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)).
Our review of a family judge's factual findings is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). "[B]ecause of the family courts' special
jurisdiction and expertise in family matters, appellate courts should accord
deference to family court factfinding." N.J. Div. of Youth & Family Servs. v.
M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare, 154 N.J. at 413). "[T]he
conclusions that logically flow from those findings of fact are, likewise,
entitled to deferential consideration upon appellate review." N.J. Div. of
Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006).
"Concomitantly, reviewing courts should defer to the trial court's credibility
determinations" as well. R.G., 217 N.J. at 552.
It is "[o]nly when the trial court's conclusions are so 'clearly mistaken' or
'wide of the mark'" that we will intervene and make our 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 N.J. Div. of Youth & Family
Servs. v. G.L., 191 N.J. 596, 605 (2007)). However, the court's interpretation
of the law or its legal conclusions are reviewed de novo. State ex rel. A.B.,
219 N.J. 542, 554-55 (2014) (citations omitted).
A-4820-18T4
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III.
We now turn to T.T.'s argument that the trial court erred in finding the
Division proved the third and fourth prongs under the best interests test by clear
and convincing evidence. Accordingly, we limit our discussion to those issues.
Based on our careful review of the record and applicable legal principles, we are
satisfied that the evidence in favor of the guardianship petition amply supports
the decision to terminate T.T.'s parental rights. We affirm substantially for the
reasons set forth by Judge Forrest in his well-reasoned, seventy-page June 19,
2019 opinion. We add the following comments.
A.
Prong three requires the Division to make "reasonable efforts to provide
services to help the parent correct the circumstances which led to the child's
placement outside the home," and the court to "consider[] alternatives to
termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3).
"Reasonable efforts" is defined as "attempts by an agency authorized by
the [D]ivision to assist the parents in remedying the circumstances and
conditions that led to the placement of the child and in reinforcing the family
structure." N.J.S.A. 30:4C-15.1(c). Those efforts are "not measured by their
success." In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999).
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T.T. primarily argues the Division failed to establish it made reasonable
efforts to provide services because she was not provided appropriate mental
health treatment, particularly trauma-focused therapy. We disagree. The record
shows the Division made reasonable efforts to reunite T.T. with her children.
The trial court recounted the numerous services the Division provided to
T.T. to address her mental health issues, including individual counseling,
parenting classes, therapeutic visitation, psychological evaluations, and
substance abuse evaluations and treatment. The Division also provided
transportation assistance to T.T. and D.B. to attend visitation sessions but
suspended the bus passes after T.T. and D.B. ignored warnings and continued to
not visit with Ian. Moreover, the Division later engaged PEI Kids to transport
Ian in the hope that the shorter distance would encourage visitation.
T.T. was largely non-compliant with those services and visitation. Her
visits were sporadic. She failed to regularly attend individual counseling and
other services. By the end of 2016, T.T. had missed ten referrals to Preferred
Children's Services for a substance abuse evaluation. When T.T. finally entered
intensive outpatient substance abuse treatment, she was discharged for non-
compliance. When speaking to a Division caseworker in March 2017, T.T.
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complained that the process was "taking too long," and she did not wish to
pursue further services through the Division.
T.T. and D.B. did not make themselves available to their caseworker or
participate in court-ordered services during the majority of 2017. While T.T.
completed parenting classes at Mercer Street Friends, she did not comply with
any of the services it recommended upon discharge. "On February 26, 2018,
Oaks Integrated terminated [T.T.] from its program because she had not
scheduled or attended a therapy session in over ninety days." Between August
2018 and February 2019, T.T. was discharged from a parenting skills program,
individual counseling, and therapeutic visitation by Children's Home Society
due to lack of attendance.
Dr. Brandwein diagnosed T.T. with borderline personality disorder and
noted her history of substance abuse. He opined that T.T. "began showing signs
of Borderline Personality Disorder as a teenager including her suicide attempts
and psychiatric hospitalizations," and her "adult life has been characterized by
problems [in relationships] with her family and romantic partners, extreme
levels of rage, [and] a tendency towards impulsive behavior and impulsive
displays of emotion." He noted that Division records indicate T.T.'s lack of
insight "into the impact of mental health difficulties on her ability to care for
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herself and her children" and her "dismal record" of attending services.
Although recognizing that psychotherapeutic and psychopharmacological
interventions "can blunt the impact of symptoms," Dr. Brandwein concluded
that T.T. was not "a candidate to participate, complete, and/or benefit from
treatment modalities, and further referrals to these modalities would not result
in different outcomes."
T.T. also argues the Division failed to correct the circumstances that led
to her children's placements. Yet she refused to end her ongoing relationship
with D.B. that subjected her to frequent acts of physical violence—even while
pregnant—and repeatedly did not seek a final restraining order under the
Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Even after T.T.
eventually reported that she severed ties with D.B., in late January 2018, she
could not promise that they would not reunite. T.T. also refused to take her
prescribed medication for bipolar disorder and disagreed with this diagnosis.
Thus, T.T.'s own conduct utterly thwarted reunification efforts.
We are satisfied that the record fully supports the trial court's finding that
the Division made "reasonable efforts" to provide appropriate services to b oth
parents. The Division engaged in such efforts for over three years—assisting
T.T. with her substance abuse, providing counseling, and arranging visitation —
A-4820-18T4
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to reunite her with Ian and Audrey. As the court noted, T.T. and D.B.
participated in many of those services, albeit inconsistently and almost entirely
without success.
The Division must also establish "the court has considered alternatives to
termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). T.T. argues the
Division failed to sufficiently address alternatives to termination of parental
rights by: (1) failing to explore placement with other relatives; and (2) not
exploring kinship legal guardianship (KLG). We disagree.
The Division must "initiate a search for relatives who may be willing and
able to provide the care and support required by the child, N.J.S.A. 30:4C-
12.1(a), and the Division's policy is to place, whenever possible, children with
relatives." N.J. Div. of Youth and Family Servs. v. M.F., 357 N.J. Super. 515,
529 (App. Div. 2003) (citing N.J. Div. of Youth and Family Servs. v. K.F., 353
N.J. Super. 623, 636 (App. Div. 2002)). However, there is no common law or
statutory "presumption in favor of such placement." Id. at 528-29.
T.T. argues that the Division's decision to rule out S.B., D.B.'s mother, as
a caregiver was arbitrary and unreasonable. We are unpersuaded by this
argument. Indeed, T.T. herself did not want Ian and Audrey placed in S.B.'s
home. She voiced concern over the small size of S.B.'s residence and her lack
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of mobility. T.T. also feared S.B. would refuse to let her visit the children. The
record shows the Division interviewed and considered four relatives for possible
placement and appropriately ruled out relative placement.
T.T. also argues the Division never adequately explored KLG. KLG is a
potential alternative to termination of parental rights. N.J. Div. of Child Prot.
and Permanency v. M.M., 459 N.J. Super. 246, 259 (App. Div. 2019). Its
purpose "is to address the needs of children who cannot reside with their parents
due to their parents' incapacity or inability to raise them and when adoption is
neither feasible nor likely." N.J. Div. of Youth & Family Servs. v. S.F., 392
N.J. Super. 201, 209 (2007) (citations omitted). In that regard, the Legislature
declared, "[i]n considering kinship legal guardianship, the State is seeking to
add another alternative, permanent placement option, beyond custody, without
rising to the level of termination of parental rights, for caregivers in
relationships where adoption is neither feasible nor likely." N.J.S.A. 3B:12A -
1(c).
As we explained in M.M., "candidates for KLG must be adequately
informed of the nature of such arrangements and the financial and other services
for which they may be eligible." M.M., 459 N.J. Super. at 261. To achieve that
objective, the Legislature enacted the Kinship Legal Guardianship Notification
A-4820-18T4
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Act (Notification Act), N.J.S.A. 30:4C-89 to -92, "to ensure that individuals who
may be eligible to become kinship legal guardians are aware of the eligibility
requirements for, and the responsibilities of, kinship legal guardianshi p and . . .
[also] the services available to kinship legal guardians in the State." Ibid.
(quoting N.J.S.A. 30:4C-90(e)). To meet this notification mandate, the
Notification Act requires the Division to inform individuals who may be eligible
for KLG of the information set forth in N.J.S.A. 30:4C-91. Ibid.
The record demonstrates that KLG was explored through discussions with
Janet and Sophia. On July 16, 2018, a caseworker visited Janet and spoke to her
about KLG versus adoption for Ian. Janet indicated that she was only interested
in adoption. On August 20, 2018, a caseworker spoke to Sofia about KLG versus
adoption for Audrey. Sofia likewise indicated that she was only interested in
adoption. On May 3, 2019, Janet and Sofia each reaffirmed they were
committed to adopting Ian and Audrey, respectively.
In M.M., we recognized that KLG was "appropriate only if 'adoption of
the child is neither feasible nor likely.'" Id. at 262 (quoting N.J.S.A. 3B:12A-
6(d)(3)(b)); accord S.F., 392 N.J. Super. at 209. Here, adoption of the children
was feasible and likely. The Division's court-approved plan is for Ian and
Audrey's respective resource parents to adopt them, which the Law Guardian
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supports. "[W]hen the permanency provided by adoption is available, [KLG]
cannot be used as a defense to termination of parental rights under N.J.S.A.
30:4C-15.1(a)(3)." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494,
513 (2004); see also N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super.
127, 130 (App. Div. 2011) (when a resource parent in a guardianship action
"unequivocally asserts a desire to adopt, the finding required for a KLG that
'adoption of the child is neither feasible nor likely' cannot be met"). The judge
properly determined that KLG was not a viable option.
B.
Under the fourth prong, the Division must demonstrate that the
"[t]ermination of parental rights will not do more harm than good." N.J.S.A.
30:4C-15(a)(4). This prong does not "require a showing that no harm will befall
the child as a result of the severing of biological ties." K.H.O, 161 N.J. at 355.
The judge must ask whether "after considering and balancing the two
relationships, the child will suffer a greater harm from the termination of ties
with her natural parents than from the permanent disruption of her relationship
with her foster parents." Ibid. "The overriding consideration under this prong
remains the child's need for permanency and stability." N.J. Div. of Youth &
Family Servs. v. L.J.D., 428 N.J. Super. 451, 491-92 (App. Div. 2012) (citing
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K.H.O, 161 N.J. at 355). "Ultimately, a child has a right to live in a stable,
nurturing environment and to have the psychological security that [her] most
deeply formed attachments will not be shattered." N.J. Div. of Youth & Family
Servs. v. F.M., 211 N.J. 420, 453 (2012).
The court noted Ian "was very happy and smiled frequently" during Janet
and Ian's bonding evaluation. Additionally, Janet engaged Ian and played with
him throughout the evaluation. Ian also referred to Janet as "mommy" and Dr.
Brandwein opined that she is Ian's psychological parent. Accordingly, Dr.
Brandwein found that Ian "would suffer serious and enduring psychological
harm if his relationship with [Janet] was terminated."
Regarding Audrey, Dr. Brandwein testified that although she "is too
young to be securely bonded to any caregiver," Sofia's continued care of her
"will allow [Audrey] to continue to thrive and be raised with her half -brother,"
L.T. During the evaluation, Audrey "was at ease while in the care of [Sofia] and
[she] looked to [Sofia] to meet her physical and emotional needs." Further, Dr.
Brandwein determined that T.T. "lacks the personal and psychological stability
to raise [Audrey] and reunification of [Audrey] with [T.T.] is not in [Audrey's]
best interest."
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During Ian and Audrey's bonding evaluation with T.T., Dr. Brandwein
determined that neither child looked to her "for affection or nurturance." He
also noted his concern that T.T. referred to Audrey as "crazy" on several
occasions while in Ian's presence. He opined that T.T.'s "lack of consistent
visitation with [Ian] and [Audrey] has caused her to have an insecure bond with
both children." Due to this, "neither [child] is likely to suffer any psychological
harm should their relationship with [T.T.] be severed."
The record fully supports the trial court's finding that "there is no realistic
likelihood that [T.T.] or [D.B.] will be able to safely and appropriately care for
their children now or in the foreseeable future." They "are unable to provide
[Ian] and [Audrey] with a safe and stable home and the permanency they so
desperately need and deserve." As noted by the court, neither child has ever
been cared for by T.T. or D.B. and none of their other children are in their care.
This ruling will allow Ian and Audrey to "receive the permanency and stability
they deserve upon termination of the parental rights" of T.T. and D.B., by
making Ian "legally free for adoption by [Janet]" and Audrey "legally free for
adoption by" Sofia. The record amply supports the trial court's conclusion that
termination of T.T.'s parental rights will not do Ian and Audrey more harm than
good and is in the children's best interests.
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Affirmed.
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