DCPP VS. M.S. AND T.C., IN THE MATTER OF THE GUARDIANSHIP OF A.C. (FG-09-0240-19, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1373-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
M.S.,
Defendant-Appellant,
and
T.C.,
Defendant.
________________________
IN THE MATTER OF THE
GUARDIANSHIP OF A.C.,
a minor.
________________________
Argued February 24, 2021 – Decided March 25, 2021
Before Judges Fuentes, Rose, and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0240-19.
Ryan T. Clark, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Robyn A. Veasey, Deputy Public Defender,
of counsel; Ryan T. Clark, on the briefs).
Julie B. Colonna, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jane C. Schuster, Assistant Attorney
General, of counsel; Julie B. Colonna, on the brief).
Rachel E. Seidman, Assistant Deputy Public Defender,
argued the cause for minor (Joseph E. Krakora, Public
Defender, attorney; Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Rachel E. Seidman, of
counsel and on the brief).
PER CURIAM
Defendant M.S.,1 the biological mother of "Amy," a girl born in August
2011, appeals from the order of the Family Part terminating her parental rights.
Although the judge also terminated the parental rights of Amy's biological
father, T.C., he did not appeal. M.S. contends the Division did not demonstrate
by clear and convincing evidence the four prongs of N.J.S.A. 30:4C-15.1(a).
The law guardian supports termination and urges us to affirm the trial judge.
1
The parties and other individuals are identified by initials and pseudonyms
because records relating to Division of Child Protection and Permanency
(Division) proceedings "are excluded from public access." R. 1:38-3(d)(12).
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2
Having reviewed the record in light of the contentions of the parties and the
applicable law, we affirm.
I.
The record shows Amy was born with significant medical issues,
including underdeveloped lungs, and was diagnosed with respiratory distress
and failure to thrive. At birth, she underwent surgery to repair a heart valve,
and suffered complications when the surgeon lacerated her phrenic nerve. As a
result, she required a tracheostomy tube, feeding tube, and nursing care sixteen
hours per day. Amy experienced global developmental delays and was
diagnosed with DiGeorge Syndrome, 2 asthma, and Attention-Deficit
Hyperactivity Disorder. She received speech therapy.
2
"DiGeorge syndrome, more accurately known by a broader term—22q11.2
deletion syndrome—is a disorder caused when a small part of chromosome 22
is missing. This deletion results in the poor development of several body
systems." DiGeorge Syndrome (22q11.2 deletion syndrome), Mayo Clinic,
https://www.mayoclinic.org/diseases-conditions/digeorge-syndrome/
symptoms-causes/syc-20353543 (last visited Mar. 3, 2021). "Medical problems
commonly associated with 22q11.2 deletion syndrome include heart defects,
poor immune system function, a cleft palate, complications related to low levels
of calcium in the blood, and delayed development with behavioral and emotional
problems." Ibid. "The number and severity of symptoms associated with
22q11.2 deletion syndrome vary. However, almost everyone with this syndrome
needs treatment from specialists in a variety of fields." Ibid.
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3
In August 2013, Amy's nursing agency made a referral to the Division
hotline alleging M.S. did not respond to attempts to contact her, faced eviction
from her apartment, and was not home on several occasions when the nurse's
shift ended. M.S. reported she was evicted after her social services assistance
ended, and she planned to temporarily live with her mother. Because M.S. had
attended Amy's medical appointments with multiple specialists, she was unable
to comply with the work program requirements. M.S. also advised the
caseworker that two years earlier, T.C. punched her, but she declined to press
charges.
On September 10, 2013, M.S. informed the Division that her parents'
apartment was infested with bed bugs. The Division gave the family a $150
check to wash clothing and linens. On January 24, 2014, M.S. informed the
Division that she was about to be evicted from the apartment she was renting for
non-payment of rent, and that she was unemployed. In response, the Division
paid $850 towards M.S.'s rent, provided her with a list of community housing
resources, and referred her to Family Life Skills to assist with parenting skills
and employment searches.
On August 27, 2014, M.S. was evicted from her apartment, and some of
Amy's medical equipment was left behind. Another referral was made to the
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Division by the nursing agency, which increased its services from sixteen hours
per day to twenty-four hours per day because of its concerns regarding M.S.'s
care of Amy. On September 2, 2014, M.S. signed a safety protection plan,
agreeing to round-the-clock nursing care for Amy. Because of the need for M.S.
to consistently attend Amy's medical appointments, the Division arranged for
transportation for M.S. to attend subsequent appointments for Amy.
On September 15, 2014, the Division received a referral that T.C., who
was incarcerated for selling drugs, had been released and moved into his mother,
K.C.'s home. Following an argument with T.C., M.S. left for the weekend,
leaving Amy in the care of T.C., K.C., and the nursing staff. That day, the
Division conducted an emergency removal pursuant to the Dodd Act 3 and placed
Amy with D.J., an unrelated foster parent. On September 17, 2014, a prior judge
found that the Division's removal of Amy was appropriate but ordered her
returned to M.S.'s custody. The judge ordered M.S. to allow the Division and
nursing agency access to the home and prohibited M.S. from leaving Amy alone
in the nurse's care.
3
A "Dodd removal" is an emergency removal of a child from the custody of a
parent without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd
Act, N.J.S.A. 9:6-8.21 to -8.82
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In the Fall of 2014, the Division referred M.S. for a substance abuse
assessment due to her alleged alcohol use, to undergo a psychological
evaluation, and to search for employment. On December 3, 2014, M.S. advised
the Division she got into an argument with T.C., and R.G., who was K.C.'s
paramour, punched M.S. in the face. The Division placed M.S. and Amy in a
motel for two months, provided a security deposit, and one month's rent.
On January 6, 2015, Dr. Gerald A. Figurelli evaluated M.S., who opined
that she required mental health treatment, lacked an adequate understanding of
children's developmental needs, and was at risk of engaging in child
maltreatment if she did not receive support. Dr. Figurelli recommended drug
testing to confirm her denial of use, domestic violence counseling, assistance
with job training, and parenting skills classes.
At the March 15, 2018 permanency hearing, the judge ordered M.S. to
participate in substance abuse treatment, submit to random urine screens, attend
Amy's medical appointments, and cooperate with Amy's nursing services. The
judge also ordered the Division to refer M.S. to legal services to explore filing
a medical malpractice lawsuit against Amy's surgeon relating to her procedure
at birth. At oral argument before this court, counsel was unsure of the status of
the referral, and the law guardian was requested to follow up.
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In July 2015, M.S. moved into a new apartment with Amy, with Section
8 assistance, and the Division paid her security deposit. In September, M.S.
failed to pay her portion of the rent. M.S. also failed to make an appointment
for Amy with an ear, nose, and throat specialist as discussed, but did enroll her
in school. In November 2015, M.S. and Amy were evicted, and M.S. did not
have a plan as to where they would live. M.S. and Amy moved in with M.S.'s
parents, F.S. and A.S., and the Division and caseworker had to retrieve Amy's
medical equipment and belongings and bring them to the grandparents' house.
By December 2015, M.S. often stayed with friends during the week and returned
to the home occasionally, prompting another referral to the Division by Amy's
nurses. The Division prepared a family agreement, signed by M.S. and the
maternal grandparents, authorizing Amy to receive twenty-four-hour nursing
care.
On January 26, 2016, the Division filed a complaint for custody of Amy.
The judge granted the Division's application based on M.S.'s noncompliance
with treatment for Amy's care, her unavailability during medical emergencies,
and lack of stable housing. The Division ruled out the maternal grandparents,
F.S. and A.S., as a family placement because of their noncompliance with
nursing staff and alleged inability to understand Amy's medical needs. K.C. and
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R.G. were also ruled out due to their history of domestic violence and R.G.'s
criminal conviction for a controlled dangerous substance, along with his refusal
to undergo a substance abuse evaluation. Amy's maternal uncle was also ruled
out. Consequently, the Division placed Amy in the home of a non-relative
resource parent, D.P., which was not a pre-adoptive home, but could
accommodate Amy's nursing assistance.
In addition, the Division referred M.S. for the following services: a
substance abuse assessment; domestic violence counseling; individual and
couples counseling; and an updated psychological evaluation. On March 3,
2016, M.S. completed a substance abuse assessment and tested negative for all
substances.
Amy's preschool classified her for special education due to her medical
condition and provided her and her nurses with transportation as part of an
Individualized Education Plan (IEP). During this time, M.S. had consistent
weekly, supervised visits with Amy arranged by the Division. On March 9,
2016, Dr. Figurelli completed a second psychological evaluation of M.S. and
again opined she did not have a psychiatric illness that required formal mental
health treatment. He reported, however, that she was "not yet prepared to
independently provide consistently responsible, safe, and stable parenting to her
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child." Dr. Figurelli recommended that M.S. be reassessed when she secured
stable living arrangements, adequate financial support, and participated in
services.
Between June and September 2016, M.S. failed to attend three
appointments scheduled by the Division for a substance abuse evaluation. On
July 19, 2016, she provided a urine sample, which tested positive for oxycodone
and alcohol. On July 25, 2016, Amy underwent surgery to remove her
tracheostomy tube. The caseworker transported M.S. to the hospital for the
procedure. The Division was notified that M.S. and T.C. missed thirteen
counseling appointments and the provider closed its case.
During the latter half of 2016, M.S. only visited Amy sporadically and
cancelled several family team meetings and other appointments. On January 6,
2017, the Division received a referral from a hospital employee alleging that
M.S. was treated in the emergency room for a skin abscess and admitting to
drinking alcohol daily. M.S. later denied drinking daily to the caseworker but
tested positive for alcohol on February 8, 2017. She began working part-time at
Walmart and later as a hairdresser.
Amy's health improved, and by February 2017, the nursing agency
reduced her care from twenty-four hours per day to sixteen hours. M.S. missed
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several of Amy's medical appointments and did not contact any of her doctors
to discuss her care. In July 2017, M.S. experienced pancreatitis due to alcohol
use. She did not seek reunification with Amy at that time.
On November 15, 2017, Dr. Figurelli evaluated M.S. for a third time and
reached the same assessment and recommendations espoused in his two previous
reports. In addition, Dr. Figurelli recommended M.S. participate in a substance
abuse evaluation to ascertain whether or not she was experiencing a
psychoactive substance abuse disorder that required formal treatment.
In the judge's January 2018 decision denying the Division's guardianship
application, the judge found the Division proved the first three prongs of the
best-interest-of-the-child test. However, the judge found the Division failed to
meet the fourth prong because Amy had a relationship with M.S., T.C., and
relatives. In addition, the judge found M.S. began services and was not at risk
for engaging in child maltreatment; the only significant concern was her lack of
stable housing. The judge also noted that Amy was not in a resource home that
was willing to adopt her.
At the permanency hearing held on March 15, 2018, the judge ordered
defendant to participate in substance abuse treatment, submit to random urine
screens, attend individual counseling, attend Amy's medical appointments, and
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cooperate with her nursing services so M.S. could better understand her
daughter's medical needs. M.S. continued to miss domestic violence counseling
sessions, individual counseling and parenting classes, and ceased attending these
services altogether in July 2018. M.S. also missed two of Amy's doctor's
appointments and her IEP meeting. Further, M.S. failed to submit to court-
ordered random drug screens, a hair follicle test, and a substance abuse
assessment.
In May 2018, the Division began assessing Mary, Amy's former nurse,
and Aaron, her husband, as a potential resource placement. They were open to
adopting Amy. In June 2018, Amy was able to discontinue using her feeding
tube. M.S. continued to resist applying for Section 8 housing and inconsistently
attended Amy's medical appointments. The Division provided M.S. with a
prepaid cell phone and offered her transportation. On December 18, 2018, the
Division placed Amy in the home of Mary and Aaron, which remained a pre-
adoptive home.
A foster child (Robert), six years old at the time, who was a victim of
sexual abuse by other children, lived in Mary and Aaron's home. Shortly after
the Division placed Amy in the home, Robert pulled down her pants, but not her
underwear, while the two danced, because he wanted to see her buttocks.
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Consequently, the Division implemented a family agreement, which provided
that Mary and Aaron would supervise the children at all times they were together
and referred both children to in-home counseling.
In approving the Division's plan of termination of parental rights,
followed by adoption, at the January 31, 2019 permanency hearing, the judge
noted that M.S. failed to comply with services, including an updated
psychological evaluation, counseling, and random urine screens. The judge also
found the Division made reasonable efforts to reunify Amy with M.S.
Thereafter, the Division continued to refer M.S. for parenting classes at the
Urban League and counseling services, which she continued to miss. M.S. also
failed to attend two appointments for hair follicle testing and five drug screens.
She also continued to miss visits with Amy and eight appointments for bonding
evaluations.
In March 2019, Robert experienced an hour-long behavioral outburst in
which he threatened Mary. The Division arranged for him to participate in
therapy at Audrey Hepburn's Children's House (AHCH) and to continue the
trauma therapy he received as a sexual abuse victim.
At the guardianship trial before another judge, the Division presented
testimony from the adoption caseworker, Miriam Attia, and Dr. Figurelli. Attia
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testified that M.S. did not respond to her attempts to contact her after July 2019
and verified that M.S. failed to complete court-ordered services. In January
2019, Attia stated that Amy's cardiologist cleared her to play sports, and her
medical appointments were reduced to about two per month. According to Attia,
by the time of trial, none of Robert's treating professionals at AHCH had
recommended his contact with Amy be supervised or stated that he posed a risk
of perpetrating future acts against her. Attia confirmed that Mary and Aaron
wished to adopt Amy.
The judge qualified Dr. Figurelli as an expert in psychology and substance
abuse treatment after counsel stipulated to his expertise. He testified that
because M.S. did not attend a psychological evaluation since November 2017,
he was unable to render an opinion as to her current parenting ability. Dr.
Figurelli expressed his concern about M.S.'s "instability" because of her
inability to maintain stable housing or employment. He also opined that M.S.
failed to visit Amy or participate in her medical appointments especially in light
of her special needs. By failing to attend services recommended, Dr. Figurelli
highlighted that M.S. minimized issues of domestic violence.
As to the incident involving Amy and Robert, Dr. Figurelli testified his
opinion as to Mary and Aaron would not change because he had no indication
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they were incapable of providing the required level of supervision. Dr. Figurelli
emphasized it was "critical" for Amy to achieve permanency as soon as possible
and "it would [not] make any sense" to further delay permanency because M.S.
was unlikely to be able to safely parent in the foreseeable future. Delaying
permanency was "not a viable situation for" Amy.
With respect to the bonding evaluations he conducted, Dr. Figurelli
concluded that Mary and Aaron were Amy's psychological parents, she
identified them as "her family," and that they provided her with a "sense of
family connectedness." He believed Amy had a "strong and significant" bond
with them and would endure "a traumatic emotional loss," which would be
"severe and enduring" if she were to lose her relationship with them.
M.S. testified on her own behalf and described the "very good
relationship" she had with Amy. At the time of trial, M.S. testified she was not
working and lived with her parents but planned to obtain employment and
Section 8 housing after her five-year suspension ended because she missed
payment of one month's rent. In April 2019, M.S. testified she underwent a
splenectomy, "almost died," was hospitalized for three weeks, and was unable
to walk for two months thereafter. According to M.S., these were the reasons
she missed visits with Amy and did not sign the Division's release form for her
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medical records. M.S. acknowledged she did not complete counseling and had
not stayed in contact with the caseworker.
The law guardian did not present any witnesses or evidence but supported
the Division's application for guardianship of Amy. On November 14, 2019, the
judge entered an order terminating M.S. and T.C.'s rights to Amy. He issued a
comprehensive written opinion in support of the order. This appeal followed.
II.
"The scope of appellate review of a trial court's fact-finding function is
limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). In general, a trial court's
findings "are binding on appeal when supported by adequate, substantial,
credible evidence." Id. at 412 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co.
of Am., 65 N.J. 474, 484 (1974)). "Particular deference is afforded to family
court fact-finding because of the family courts' special jurisdiction and expertise
in family matters." N.J. Div. of Child Prot. & Permanency v. N.C.M., 438 N.J.
Super. 356, 367 (App. Div. 2014) (citing Cesare, 154 N.J. at 413). "We will not
overturn a family court's factfindings unless they are so 'wide of the mark' that
our intervention is necessary to correct an injustice." N.J. Div. of Youth &
Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (quoting N.J. Div. of Youth &
Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
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To terminate parental rights on the grounds of the "best interests of the
child," the Division must prove, by clear and convincing evidence, the following
four prongs under N.J.S.A. 30:4C-15.1(a):
(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 statutory prongs "are neither discrete nor separate. They overlap
to provide a composite picture of what may be necessary to advance the best
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interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.
Super. 235, 258 (App. Div. 2005).
Under prong one, the Division must demonstrate harm "that threatens the
child's health and will likely have continuing deleterious effects on the child."
In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999). The Division need not
demonstrate actual harm. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.
Super. 418, 440 (App. Div. 2001). That is, courts consider whether the child's
safety, health, or development will be endangered in the future. Ibid. Moreover,
"[c]ourts need not wait to act until a child is actually irreparably impaired by
parental inattention or neglect." In re Guardianship of DMH, 161 N.J. 365, 383
(1999) (citing A.W., 103 N.J. at 616 n.14).
In addition, a parent's failure to provide "a permanent, safe, and stable
home" engenders significant harm to the child. Ibid. Likewise, a parent's failure
to provide "solicitude, nurture, and care for an extended period of time is in
itself a harm that endangers the health and development of the child." Id. at 379.
"The second prong, in many ways, addresses considerations touched on in
prong one." F.M., 211 N.J. at 451. The focus is on "parental unfitness." K.H.O.,
161 N.J. at 352.
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Under prong three, the Division must prove it "made reasonable efforts to
provide services to help the parent correct the circumstances which led to the
child's placement outside the home." 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). The record must also establish "the court has considered alternatives to
termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3).
Under the fourth prong, the Division must demonstrate that "[t]ermination
of parental rights will not do more harm than good." N.J.S.A. 30:4C-15(a)(4).
The fourth prong serves as a "'fail safe' inquiry guarding against an inappropriate
or premature termination of parental rights." F.M., 211 N.J. at 453.
We affirm the trial judge's decision with respect to all four prongs of the
statue substantially for the reasons expressed in his written opinion. We add the
following comments.
As to prong one, the judge emphasized Amy was a medically fragile child
who required heightened care. The record clearly established M.S. is unable to
care for Amy's special needs, even though they have lessened. Additionally, the
judge was concerned that M.S. left Amy in the care of nurses and caretakers,
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and her financial irresponsibility would place Amy "at great risk of harm." M.S.
was unable to care for Amy since the January 2016 removal, and therefore, M.S.
is unable to provide a "permanent, safe, and stable home." DMH, 161 N.J. at
383. Moreover, M.S. never eliminated the risk of harm to Amy that her care
posed.
The judge's finding as to prong one is fully supported by the record. We
are unpersuaded by M.S.'s argument that poverty and lack of housing do not
constitute abuse or neglect, see e.g., Doe v. G.D., 146 N.J. Super. 419, 430-31
(App. Div. 1967), because the judge here did not base his prong one findings
solely on her lack of stable housing. The judge considered M.S.'s failure to fully
avail herself of the Division's assistance regarding housing and employment.
As to the second prong, the judge credited Dr. Figurelli's opinion that M.S.
was unlikely to parent Amy in the foreseeable future and that M.S. failed to
engage in services to meet Amy's needs. The record shows M.S. failed to
participate in updated psychological and bonding evaluations, leading the judge
to conclude she was "not committed to overcoming the shortcomings and
obstacles that prevent[ed] her from being an effective and adequate parent to"
Amy. The judge determined a delay in permanent placement would add to
Amy's harm.
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Turning to prong three, we are satisfied the record supports the judge's
finding that the Division made "reasonable efforts" to provide appropriate
services to M.S. The Division engaged in such efforts dating back to 2013,
assisting M.S. with nursing care services for Amy, purchasing a cell phone for
M.S., providing her with information on how to apply for Section 8 housing,
substance abuse, and parenting skill class referrals.
The last clause of prong three addresses whether "the court has considered
alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). Here,
the judge found the Division "extensively explored relatives for placement" and
that Mary and Aaron wished to adopt Amy. While the judge applauded K.C. for
her interest in parenting Amy, he found she was not a viable placement because
K.C.'s relationship with R.G. posed a threat to Amy's safety.
The Division satisfies prong three when it provides services to a parent to
help correct the circumstances that led to the child's removal and considers
alternatives to termination of parental rights. DMH, 161 N.J. at 386.
Reasonable efforts include:
(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;
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(3) informing the parent at appropriate intervals of the
child's progress, development, and health; and
(4) facilitating appropriate visitation.
[Id. at 387 (citing N.J.S.A. 30:4C-15.1(c)).]
The court analyzes whether the Division provided reasonable efforts "on
an individualized basis," id. at 390, and measures them by their adequacy under
the circumstances, rather than by their success. Id. at 393.
Here, the record supports the judge's findings and conclusions regarding
prong three. The Division provided defendant with numerous services before
Amy's removal to allow M.S. to maintain custody, and after Amy's removal, to
allow M.S. to regain custody. The record demonstrates that the services were
individually tailored to M.S.'s needs because they aligned with those that Dr.
Figurelli recommended.
M.S. does not brief, or otherwise challenge, the issue of whether the
Division adequately considered alternatives to termination by assessing
relatives, including K.C. As such, she waived this issue on appeal. See, e.g.,
W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 459 (App.
Div. 2008) ("An issue not briefed is deemed waived."). Even so, the record
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supports the finding that the Division met its burden as it assessed M.S.'s
parents, Amy's maternal uncle, and K.C., and ruled them out.
In her reply brief, for the first time, M.S. questions whether Mary and
Aaron are fully committed to adopting Amy—M.S. notes that Mary and Aaron
did not testify and contends that Attia's testimony regarding their wishes was
hearsay. M.S. did not address this issue below, therefore, the matter is subject
to the plain error standard of review. See R. 2:10-2 ("Any error or omission
shall be disregarded by the appellate court unless it is of such a nature as to have
been clearly capable of producing an unjust result . . . .").
The record does not contain any evidence that Mary and Aaron's
preference for adoption is conditional, ambiguous, or qualified. We discern no
error under Rule 2:10-2 and conclude the judge provided a reasonable basis for
his conclusion on prong three.
Finally, we address the fourth prong. The judge again credited Dr.
Figurelli's testimony that Amy would experience severe and enduring harm if
her relationship with Mary and Aaron was terminated. Moreover, the judge
found the Division proved prong four because although it did not have a bonding
evaluation between M.S. and Amy, M.S. did not visit Amy since August 2019,
and had a history of missing visits. Prudently, the judge proceeded "with great
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caution" because Amy was finally in the care of a family that was both willing
and able to care for her.
The fourth prong "serves as a failsafe against termination even where the
remaining standards have been met." N.J. Div. of Youth & Family Servs. v.
G.L., 191 N.J. 596, 609 (2007). The Division typically satisfies this prong
through testimony of a qualified expert, who conducts a comprehensive and
objective evaluation of the child's relationship with his or her biological parents
and resource parents. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.
261, 281 (2007).
Children have their own rights to "a stable, nurturing environment," along
with the security of knowing that their "most deeply formed attachments will
not be shattered." F.M., 211 N.J. at 453. "Keeping the child in limbo, hoping
for some long-term unification plan, would be a misapplication of the law." N.J.
Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 484 (App. Div.
2012) (quoting A.G., 344 N.J. Super. at 438).
We conclude the judge provided a reasonable basis for his conclusion on
prong four that the termination of M.S.'s parental rights will not do any more
harm than good under N.J.S.A. 30:4C-15.1(a)(4). The record does not support
M.S.'s contention that Mary and Aaron treat Amy poorly, or that their home is a
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"house of horrors." To the contrary, the evidence shows Amy is thriving in their
home and "appeared to feel emotionally supported, safe, cared for, and
emotionally secure in interaction." Amy did not exhibit "emotional conflicts,
emotional upset, or evidence of emotional disturbance in her relationship" with
Mary and Aaron. The judge's decision is based upon substantial credible
evidence in the record.
Affirmed.
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