DCPP VS. M.K.F., G.M.V., AND R.B., IN THE MATTER OF THE GUARDIANSHIP OF K.M.V., J.L.V., Z.A.V., H.L.S.B., J.M.V., AND J.L.B. (FG-07-0120-19, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) ( 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NOT FOR PUBLICATION WITHOUT THE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-2802-19
A-2805-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
M.K.F.,
Defendant-Appellant/
Cross-Respondent,
and
G.M.V.,
Defendant,
and
R.B.,
Defendant-Appellant.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF K.M.V.
and J.L.V.,
Respondents/
Cross-Appellants,
and
Z.A.V., H.L.S.B., J.M.V., and
J.L.B., Minors.
_________________________
Submitted February 10, 2021 – Decided August 6, 2021
Before Judges Accurso, Vernoia and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0120-19.
Joseph E. Krakora, Public Defender, attorney for
appellant/cross-respondent M.K.F. (Louis W. Skinner,
Designated Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for
appellant R.B. (Kimberly A. Burke, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Mary L. Harpster, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for respondents/cross-appellants K.M.V. and
J.L.V. (Meredith Alexis Pollock, Deputy Public
Defender, of counsel; Todd Wilson, Designated
Counsel, on the briefs).
2 A-2802-19
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors H.L.S.B., J.M.V. and J.L.B.
(Meredith Alexis Pollock, Deputy Public Defender, of
counsel; Linda Vele Alexander, Designated Counsel,
on the brief).
PER CURIAM
Defendant M.K.F. (Meg) is the mother of six children: ten-year-old
K.M.V. (Karen), nine-year-old Z.A.V. (Zack); seven-year-old J.L.V. (Jasmine),
five-year-old J.M.V. (Jason), two-year-old J.L.B. (Jacob), and one-year-old
H.L.S.B. (Heather). 1 Defendant G.M.V. (Greg) is the father of Karen, Zack,
Jasmine, and Jason. Defendant R.B. (Randall) is the father of Jacob and
Heather.
These consolidated appeals are from a guardianship judgment terminating
Meg's parental rights to Karen, Jasmine, Jason, Jacob, and Heather, and
Randall's parental rights to Jacob and Heather. 2 In A-2802-19, Meg appeals,
1
We use fictitious names to protect the identity and privacy of the parties and
because records relating to proceedings brought by the New Jersey Division of
Child Protection and Permanency (the Division) pursuant to Rule 5:12 are not
subject to public disclosure. R. 1:38-3(d)(12). We provide the ages of the
children at the time of the 2020 guardianship trial.
2
The judgment terminated Greg's parental rights to Karen, Jasmine, and Jason.
Greg did not appeal from the judgment or participate in this appeal.
3 A-2802-19
and the Law Guardian for Karen and Jasmine cross-appeals, from the judgment.
In A-2805-19, Randall appeals from the judgment.
The judgment also dismissed the Division's complaint seeking the
termination of Meg's and Greg's parental rights to Zack. The Division does not
appeal from the dismissal.
Meg, Randall, and the Law Guardian for Karen and Jasmine contend the
court erred by finding the Division clearly and convincingly satisfied the best-
interests standard for termination of parental rights under N.J.S.A. 30:4C-
15.1(a). The Division and the Law Guardian for Jason, Jacob, and Heather urge
that we affirm the order. After reviewing the record in light of the parties'
arguments, we conclude the court correctly applied the governing legal
principles, and we affirm the termination of Meg's parental rights to Jason,
Jacob, and Heather, and Randall's parental rights to Jacob and Heather. We also
affirm the court's determination the Division clearly and convincingly
established the first three prongs of the statutory best-interests standard for
termination of Meg's parental rights to Karen and Jasmine. We further find that
based on the trial evidence, the Division satisfied its burden of proving the fourth
prong of the standard for termination of Meg's parental rights to Karen and
Jasmine, but based on changes in circumstances subsequent to the guardianship
4 A-2802-19
order, we vacate the order terminating Meg's parental rights to Karen and
Jasmine and remand for reconsideration of whether termination of Meg's
parental rights to those two children will not do more harm than good.
I.
The final guardianship order follows Meg's, Randall's, and the children's
lengthy involvement with the Division. 3 We recount their history with the
Division in detail to provide context for our discussion of the parties' respective
arguments concerning the children's best interests and the guardianship order.
The Division's involvement with Meg and Greg began in 2011 when it
received a referral that Meg physically assaulted ten-month-old Zack. During
the Division's investigation, Meg reported she accidentally hit Zack in the face
while attempting to hit Greg, who used Zack as a "shield." Meg admitted to
marijuana use and explained she and Greg had a history of domestic violence.
The Division substantiated Meg for physical abuse, and offered services
to Meg and Greg, including parenting classes, psychological evaluations, and
substance abuse evaluations. The court granted the Division care and
supervision of Karen and Zack and, a few days after Jasmine's birth in March
3
We limit our discussion of the facts concerning Greg because he does not
appeal from the judgment terminating his parental rights.
5 A-2802-19
2012, the court also granted the Division care and supervision of Jasmine. The
litigation was dismissed in August 2012.
Nineteen months later, the Division received a referral that two-week-old
Jason had a fractured skull. The reporter stated the injury occurred when Greg
left Jason on a bed, and then four-year-old Karen picked up Jason and dropped
him on the floor. It was also reported Meg had received little prenatal care and
she was observed at the hospital with bruises on her leg and jaw. Greg tested
positive for marijuana use. In April 2014, the court awarded the Division care
and supervision of Karen, Zack, Jasmine, and Jason.
In March 2015, the Division referred Meg for a substance abuse
evaluation because she admitted to marijuana use when "stressed out." At that
time, Meg also obtained a domestic violence restraining order against Greg and
reported that Greg had previously physically assaulted her and threatened to kill
her. Within two months, Meg dismissed the restraining order and was again
living with Greg and the children.
During a June 2015 substance abuse evaluation, Meg admitted to using
marijuana and Percocet, and she reported suffering from anxiety, depression,
and other mental health issues. Meg began an intensive outpatient program, but
was terminated from the program for noncompliance.
6 A-2802-19
In August 2015, Meg and the children were evicted from their apartment
due to nonpayment of rent. Meg and the children lived in a series of shelters
and with various family and friends until April 2016. In November 2015, Greg
punched Meg in the face, and she obtained a domestic violence temporary
restraining order (TRO) against him. A final restraining order was entered in
December 2015.
In March 2016, Meg was terminated from a substance abuse treatment
program due to nonattendance. The following month, she asked the Division
caseworker to "come get the kids" because she was denied welfare and did not
have housing. Meg continued to move between the homes of family and friends,
and she remained noncompliant with Division services.
Meg regularly interacted with Greg, leaving Jason with Greg even though
the domestic violence final restraining order remained pending against Greg. In
May 2016, Greg struck Meg in the face while she held Jason, and Greg
threatened to shoot Meg with "guns in the house." Meg contacted the Division
and requested that it "come get the children" because she was "overwhelmed."
7 A-2802-19
The Division conducted a Dodd 4 removal of Karen, Zack, Jasmine, and
Jason, and substantiated Greg for creating a substantial risk of injury to Jason.
On May 24, 2016, the court granted the Division custody of the children. At the
time of their removal, each of the children had lice; Jasmine had facial scars
caused by Greg hitting her with a belt; Jasmine reported being hungry while in
Meg's care because there was no food; it was necessary to remove a number of
Karen's teeth because they were "rotten" and filled with cavities; and Karen and
Zack had each missed more than thirty days of school since the beginning of the
2015-2016 school year.
At the resource home where they were placed, Karen and Jasmine fought
each other. Karen and Jasmine qualified for in-home behavioral services and
were placed in a therapeutic home on August 17, 2016. Much of their therapy
focused on addressing trauma to which Meg and Greg exposed them.
During a June 2016 substance abuse assessment, Meg reported depression,
anxiety, "[t]rouble controlling violent behavior," and having been previously
diagnosed with bipolar disorder. Meg visited a psychiatrist for treatment of
4
"A 'Dodd removal' refers to the emergency removal of a child from the home
without a court order, pursuant to the Dodd Act, which, as amended, is found at
N.J.S.A. 9:6-8.21 to -8.82." N.J. Div. of Child Prot. & Permanency v. T.S., 463
N.J. Super. 142, 150 n.2 (App. Div. 2020) (quoting N.J. Div. of Youth & Fam.
Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010)).
8 A-2802-19
bipolar disorder and depression. The psychiatrist prescribed medication, but
Meg later reported she stopped seeing the psychiatrist because she was pregnant
and could not take the medication. The Division arranged for Meg to receive
mental health treatment at another facility.
In July 2016, psychologist Dr. Leslie J. Williams conducted an evaluation
and determined Meg was not "currently capable of providing adequate parenting
to her children" because Meg did not comply with treatment recommendations
and required psychological and substance abuse treatment. Meg was admitted
to an outpatient treatment program in July 2016; terminated in August 2016 due
to "sporadic[]" attendance; readmitted in January 2017; and terminated in April
2017 because she stopped attending treatment.
In February 2017, Meg reported she was pregnant and that Randall, who
has a criminal history involving drugs and domestic violence, was the child's
father. 5 In March 2017, Dr. Williams conducted a psychological evaluation of
Randall and determined Randall was "not currently capable of providing
adequate parenting to [Meg's] children." Dr. Williams found Randall had issues
with anger, irritability, and control, and she recommended that he attend
5
Meg did not report what occurred with the alleged pregnancy that she earlier
claimed prevented her from taking the medication prescribed by the psychiatrist
in June 2016.
9 A-2802-19
parenting classes and a substance abuse assessment. During the assessment,
Randall reported he served two years in prison for assaulting the mother of his
other children. Following a substance abuse assessment, Randall was not
recommended for substance abuse treatment.
In March 2017, Meg began therapeutic visits with the children and
parenting skills classes. She attended all the visits and two classes through May
2, 2017, but she then attended only one of the following nine parenting classes,
and six of eleven visits with the children, through July 19, 2017.
Meg's poor attendance coincided in part with several domestic violence
incidents. On May 1, 2017, Meg was treated in an emergency room for injuries
sustained following a domestic violence incident with Randall. Meg agreed to
meet with the Division's domestic violence liaison, but she missed the
appointment and advised she did not need services because she was no longer
dating Randall. Randall, who was on probation, was referred to an anger
management program in which he enrolled and later completed.
The following month, Meg and Randall were involved in another domestic
violence incident. They were each incarcerated as a result. Meg was released
on June 21, 2017.
10 A-2802-19
From July 20, 2017 through October 2, 2017, Meg attended every
therapeutic visit with the children, but she did not participate in parenting
classes. During this time, the supervisor of her visits with the children observed
that Meg appeared "withdrawn" and often had "visible bruising," and that the
children asked about Meg's injuries.
Meg gave birth to Jacob on October 13, 2017. Randall was incarcerated
at the time as a result of a violation of probation. Eleven days later, the Division
went to Meg's address and learned Meg's and Jacob's location was unknown.
Meg spoke with a Division caseworker on October 25, 2017, and refused to
provide Jacob's location. Two days later, the Division conducted a Dodd
removal of Jacob and, on October 31, 2017, the court granted the Division
custody of the child.
In November 2017, Meg underwent a substance abuse evaluation. It was
not recommended that she undergo substance abuse treatment, but she was
referred for mental health treatment.
Randall was released from incarceration in December 2017 and began
visitation with Jacob.
The following month, Meg underwent a psychological re-evaluation with
Dr. Elizabeth Stilwell. Randall accompanied Meg to the evaluation. Meg
11 A-2802-19
explained she participated in domestic violence counseling but stopped because
she "didn't need it anymore." She also stated she did not comply with other
services because "she did not feel like she needed them," and she no longer
needed medication, in part, because her relationship with Randall improved her
mood. Meg denied any domestic violence with Randall.
Dr. Stilwell expressed concern that Meg's relationship with Randall
involved domestic violence and Meg was dependent on Randall for housing and
financial stability. Dr. Stilwell determined Meg "ha[d] made very limited
progress" and she "appear[ed] to lack the ability to adequately parent her five
children and to protect them from harm." Dr. Stilwell recommended that Meg
complete domestic violence counseling and a parenting skills program, obtain
stable housing and income, participate in a substance abuse evaluation, and
continue therapeutic visits with the children.
In late January 2018, the Division received a report that Karen took naked
pictures of Jasmine. Karen and Jasmine later admitted they took pictures of their
vaginas and learned to take the pictures from seeing their mother, Meg, take
pictures of her vagina. According to the reporter, Karen and Jasmine said they
saw Meg and her boyfriend having sex multiple times and that, during their visits
with Meg, they saw pictures on Meg's cell phone of Meg having sex with her
12 A-2802-19
boyfriend. Karen and Jasmine underwent psychosocial evaluations following
the report.
In February 2018, the Division referred Randall to a batterer's intervention
program and for parenting skills classes, and it referred the family to a program
to address their housing needs. The program did not accept the family because
Meg would not comply with the recommendation that she see a domestic
violence liaison. Later, in October 2018, the Division wrote a letter on Meg's
behalf to assist her in obtaining subsidized housing.
Randall went to a substance abuse assessment in February 2018. He
reported having symptoms consistent with panic attacks and advised he was
previously diagnosed with a mental illness but last took medication in December
2017. Randall was not recommended for substance abuse treatment, but it was
observed that he "could benefit from grief counseling, healthy relationship
skills, anger management [training], mental health assessment[s], complet[ing]
probation[,] and maintain[ing] employment."
Dr. Stilwell conducted a psychological evaluation of Randall in March
2018. Randall did not believe he needed a batterer's intervention program; he
said he would "do anger management because it's shorter." Randall reported he
previously had been charged with domestic violence, but he denied physical
13 A-2802-19
altercations with former paramours. He described his past behavior as "play
fight[ing]," and he denied a history of domestic violence with Meg. He
admitted, however, he "will grab [Meg's] wrists and arms" to calm her down. A
few days prior to Dr. Stilwell's evaluation of Randall, Meg reported there was
"a lot of domestic violence," and Randall "was trying to control her" and
"threatened to kill her."
Dr. Stilwell found Randall's understanding of his previous domestic
violence incidents and criminal charges "extremely concerning." Dr. Stilwell
recommended that Meg and Randall be referred for a "more in-depth domestic
violence risk assessment" and that Randall complete parenting skills classes.
Randall agreed to participate in an anger management program, but he was
closed out of the program because he did not attend.
In May 2018, Meg completed individual therapy. The therapy focused on
addressing anger management, domestic violence, and parenting skills.
On May 30, 2018, the Division received a referral that Jasmine and Zack
were found in bed together with no pants on. Karen witnessed the incident.
Karen and Jasmine had already been referred for psychosocial evaluations
because Karen had taken naked photographs of Jasmine. Zack was also referred
for, and underwent, a psychosocial evaluation after this incident.
14 A-2802-19
Meg cancelled a June 5, 2018 visit with the children, claiming she suffered
injuries—a black eye, and bruises and swelling of her hand and leg—in a car
accident. Meg later admitted she lied about the car accident and that Randall
injured her during a domestic violence incident. The Division advised Meg how
to obtain a restraining order against Randall, and offered to meet with her to
assist in obtaining a restraining order. Meg said she would obtain a restraining
order, but she did not. Meg and Randall visited the children together on June
11, 2018 and July 3, 2018.
On June 26, 2018, Meg left a family team meeting after the Division raised
the issue of the causes of Meg's bruising. Meg denied that Randall caused the
injuries and accused the Division workers of making up stories. The Division
provided Meg with a domestic violence liaison, but Meg consistently missed
appointments with her.
During a July 24, 2018 visit with the children, Meg slapped Jasmine in the
mouth because Jasmine "was not listening to her." Around this time, Randall
stopped contacting the Division and stopped visiting the children. He also had
several active warrants for his arrest.
In September 2018, Meg requested a Division referral for the housing
program that had previously denied her application because she admitted to a
15 A-2802-19
history of domestic violence. The Division advised Meg the program might
deny the application again because of her domestic violence history.
On September 26, 2018, the domestic violence liaison closed out Meg's
case because she did not appear for her appointments. The liaison provided Meg
with information concerning a domestic violence program. To the Division's
knowledge, Meg never sought any domestic violence services.
On October 15, 2018, Dr. Thailyn Alonso conducted a psychological re-
evaluation of Meg. During the evaluation, Meg said she did not believe she
needed a domestic violence program, and she denied spending time with
Randall. Meg acknowledged her children witnessed domestic violence incidents
between her and Randall. Dr. Alonso observed Meg "demonstrated little to no
insight regarding the risk and impact of domestic violence which is likely to
continue to place her children's safety at risk." Dr. Alonso found there was an
"ongoing" risk of domestic violence, the gains Meg made from services were
"limited," and Meg was still not able to adequately parent her children.
By November 2018, Randall was in contact with the Division again; he
completed an anger management program on November 14, 2018. Three weeks
later, Dr. Carolina Mendez conducted a psychological evaluation of Randall.
During the evaluation, Randall claimed his previous domestic violence charges
16 A-2802-19
were "false accusations" and that he had been the victim of domestic violence.
He said he did not need a batterer's intervention program, but he was
participating in a batterer's intervention program because it would help him get
his son back in his care.
Dr. Mendez found Randall "exhibit[ed] a pervasive pattern of denial,
minimization, avoidance, and displacement of blame," and she opined that
Randall "made very few gains in treatment." Dr. Mendez determined Randall
would continue to engage in domestic violence, and that he needed to
acknowledge his participation in domestic violence and accept responsibility for
the harm he caused to others.
On December 7, 2018, officers arrested Meg and Randall. Meg had
recorded a sexual encounter between her roommate and a male, and it resulted
in a domestic dispute among Meg, Randall, and the roommate. Meg was arrested
following the incident.
While at the Division's office on January 7, 2019, Meg yelled and cursed
at Randall. A security guard intervened, and Randall left the office. Meg
declined a caseworker's offer to speak to a domestic violence liaison. Three
weeks later, Meg was arrested following a domestic violence incident during
17 A-2802-19
which she reportedly struck Randall in the face and attempted to destroy a
television.
On January 31, 2019, Meg and the children began family therapy. On
February 4, 2019, Meg attended an intake for a program that offered anger
management, individual therapy, parenting skills, and domestic violence
classes. Several months later, in April 2019, the court ordered Meg to comply
with the program. However, Meg did not comply, and her case with the program
was closed.
In March 2019, Randall began participating in group therapy. Although
Randall made progress over the course of several months, the program
determined Randall needed more treatment because he was not as "forthcoming"
with more difficult issues. Dr. Stilwell testified at trial the program was not
appropriate for batterer's intervention.
On April 5, 2019, Randall obtained a TRO against Meg. He reported that
three days earlier Meg first appeared at his job to harass him, and later struck
his knee with her car.
On April 11, 2019, the Division filed a complaint for guardianship of
Karen, Zack, Jasmine, Jason, and Jacob. The next day, Randall requested and
18 A-2802-19
obtained the dismissal of his TRO against Meg. Around this time, Randall
reported that he and Meg no longer lived together, but he paid for her rent.
In late April, Division caseworkers supervising Meg's visits with the
children observed "an increase of negative behavior in visits" after the children
learned about the Division's goal of adoption. The children's behavior
sometimes "overwhelmed" Meg, which caused her to leave one visit early.
On May 2, 2019, Heather was born. On May 7, 2019, the Division
obtained custody of Heather, and, six days later, the Division amended the
complaint to also seek guardianship of Heather.
Around this time, Meg reported the building in which she resided was
being foreclosed. Shortly thereafter, Meg advised Dr. Stilwell that she rented a
first-floor apartment in exchange for acting as the superintendent of the
building's exterior. However, Randall advised Dr. Stilwell he was the
superintendent of the building and that Meg did not pay rent there.
During a May 21, 2019 visit with the children, Meg asked a caseworker
in front of the children what she needed to do to surrender her parental rights,
and she threatened not to attend the next visit.
In June 2019, Meg began attending individual therapy to address domestic
violence, anger management, and parenting skills. Although she missed five of
19 A-2802-19
the first nine sessions, she completed treatment in October 2019, and thereafter
continued therapy for a period of time.
On July 26, 2019, the Division moved Heather into Jacob's resource home.
On August 16, 2019, the Division placed Karen and Jasmine into a resource
home committed to adoption.
During this time, Meg and Randall continued to visit the children.
However, by September 2019, Randall's visits were inconsistent, and in
November 2019, two months prior to the guardianship trial, Randall stopped
attending the visits altogether.
During the guardianship trial, the Division presented its case through the
introduction of voluminous records, and the testimony of caseworker Neury
Trinidad, adoption supervisor Olga Fuentes, and Dr. Stilwell, who was qualified
as an expert in psychology and bonding. The Law Guardian for Karen and
Jasmine presented Karen and Dr. Karen Wells, an expert in psychology and
bonding. We briefly summarize the witness testimony.
Trinidad testified concerning the Division's record-keeping and Meg's,
Greg's, and Randall's respective histories with the Division. Trinidad explained
that all the children, except Zack, were in adoptive homes, and that Karen,
Jasmine, and Zack had indicated they preferred to be in Meg's care.
20 A-2802-19
Trinidad also testified that, at the time of trial, Meg had appropriate
housing and had provided the Division with a lease, but the Division was unable
to verify the lease because Meg did not provide an updated lease with the new
owners of the property in response to Trinidad's requests. Therefore, Trinidad
was unable to confirm Meg would be able to stay in the housing in the long term.
Trinidad further explained Randall's living situation was not known because he
refused to provide the Division with his address.
Trinidad also noted Meg had been employed as a security guard for three
months, but her employment had otherwise been unstable. Trinidad testified
Randall's employment was "not stable" and that he had multiple changes in
employment.
Fuentes testified concerning the Division's process for select home
adoption for children who were not in adoptive homes but whose parents'
parental rights were terminated. She explained the termination of parental rights
to a child who was in a non-adoptive placement allowed the Division to explore
additional placement options in and outside New Jersey because, prior to
termination of parental rights, the Division is unable to share information
concerning a child for the purpose of seeking possible adoptive select home
placements.
21 A-2802-19
Fuentes's testimony focused on Zack, who was not in a resource home
committed to adoption at the time of trial. Fuentes explained in detail the
Division's plan to place Zack in a home committed to adoption and his particular
prospects for adoption based on his age and history of behavioral and other
issues.
Dr. Stilwell testified she conducted psychological evaluations that
included objective testing of Meg and Randall, and bonding evaluations with
Meg, Randall, and their children, and the children and their resource parents. 6
She also explained the methodologies she employed to conduct the evaluations.
Dr. Stilwell's most recent evaluations of Meg and the children occurred in June
2019, seven months prior to trial.
Based on her evaluations of Meg and Randall, Dr. Stilwell opined that, for
reasons unique to each, neither parent is capable of adequately parenting their
children at present or in the foreseeable future. She further determined the
likelihood of Meg mitigating any parenting defects was "poor."
As the basis for her opinion concerning Meg, Dr. Stilwell considered
Meg's history, including: her involvement with the Division since 2011, and that
6
It does not appear Dr. Stilwell conducted a bonding evaluation with Zack and
any resource parent.
22 A-2802-19
Meg's original involvement with the Division began with a referral that she
struck then ten-month-old Zack in the face during a domestic violence incident
with Greg. Dr. Stilwell also noted Meg's longstanding involvement with the
Division; her history of failing to fully comply with services; her mental health
history and inconsistent use of prescribed medications; her inability to maintain
stable housing and employment; her lack of consistent visitation with the
children; her domestic violence history; her history of dependence on Greg and
Randall, with whom she had relationships characterized by domestic violence;
her exposure of her children to domestic violence; her reliance on Greg and
Randall for housing; and her ongoing minimization of her domestic violence
history and the domestic violence that occurred in her relationships with Greg
and Randall. Dr. Stilwell found Meg's failure to consistently visit the children
and attend recommended programs demonstrated Meg's instability and that Meg
would be unable to ensure the children were taken to appointments and
activities. Dr. Stilwell testified Meg's failure to comply with services
demonstrated a lack of motivation to address the issues that led to the children's
removal from her care and custody.
Dr. Stilwell further explained the children have emotional and behavioral
issues that will place "a high level of demand" on a parent, and that Meg has
23 A-2802-19
expressed she is "overwhelmed" with the children during her visits with them.
In Dr. Stilwell's opinion, those facts in part establish Meg would have difficulty
caring for the children. Dr. Stilwell further opined Meg had not benefitted from
programs and services provided to address her deficiencies and needs.
Dr. Stilwell testified Meg's lack of insight prevents Meg from changing
her behavior and, as a result, Meg will repeat the behavior that led to the removal
of the children. Based on her testing and evaluation of Meg, Dr. Stilwell opined
that Meg lacks the psychological resources to meet the children's needs for
protection, safety, nurturing, and guidance, and Meg is not likely to change in
the foreseeable future.
Dr. Stilwell explained that Meg's long history of failing to obtain the
benefits of services resulted in an inability to mitigate the risks of harm to the
children through any meaningful change in her behavior. Dr. Stilwell testified
Meg's domestic violence history and her involvement with paramours who
committed acts of domestic violence caused harm to the children, who were
exposed to the domestic violence, and presented a risk of future harm because
Meg had not benefitted from the services provided over many years to mitigate
the risk that she would continue her involvement in relationships characterized
by domestic violence. Dr. Stilwell also explained that Meg's housing and
24 A-2802-19
employment instability, and other issues, rendered her unable to safely parent
the children, and caused the children harm by denying them opportunities for
permanency.
Dr. Stilwell further explained termination of Meg's parental rights would
not do more harm than good. She found that although each of the children had
positive relationships with Meg, it was unlikely that they had secure attachments
to her because of her inconsistent visits and the amount of time they spent
outside of her care.
Dr. Stilwell also testified it was unlikely the older children, Karen,
Jasmine, and Zack, had secure attachments based on the time they had actually
lived with Meg because of the traumas they experienced under her care. Dr.
Stilwell testified the children would suffer some harm if Meg's rights were
terminated, but the harm would not be significant or enduring and that any harm
would be mitigated by providing the children with secure and stable
environments.
Dr. Stilwell testified she found Randall's criminal history and
minimization and denial of his involvement with the Division were "significant"
in her determination Randall would not be able to safely parent. Dr. Stilwell
observed Randall was physically violent, and coercive and controlling towards
25 A-2802-19
Meg, but he either denied or minimized his domestic violence history with Meg
and others. Dr. Stilwell observed Randall continued to coerce and control Meg
even after they separated. Dr. Stilwell found Randall's reports concerning his
history of domestic violence contradicted the record and Meg's statements, and
he lacked the insight necessary to address the issues that led to the removal of
the children from his care. Dr. Stilwell also noted Randall's refusal to provide
his address as evidence of his housing instability.
Based on objective testing and her interview of Randall, Dr. Stilwell found
he had psychological traits—including his minimization of his domestic
violence history, his lack of empathy for the children, and his primary focus on
himself—that impair his ability to parent Jacob and Heather. Dr. Stilwell opined
Randall lacks the psychological and physical resources to provide for his
children's protection, safety, nurturing, and guidance at present and in the
foreseeable future. She concluded that termination of his parental rights to Jacob
and Heather would not do more harm than good.
During Dr. Stilwell's bonding evaluations of Karen and Jasmine with Meg,
Karen stated she preferred to live with Meg if Meg obtained housing. Jasmine
advised Dr. Stilwell she wanted to stay with her resource parents. Dr. Stilwell
opined that Karen and Jasmine each had an "insecure" attachment to Meg, and
26 A-2802-19
neither child viewed Meg as a parental figure. Dr. Stilwell also found that
although Karen and Jasmine had resided with their resource parents for only a
few months prior to the evaluation, the children enjoyed a healthy relationship
with them, and the consistency and stability they provided would mitigate any
disruption to the children that termination of Meg's parental rights might cause.
Dr. Stilwell opined that Jason had an attachment to Meg, but he did not
see her as a parental figure. Meanwhile, Dr. Stilwell testified Jason had a secure
attachment to his resource parents, who he viewed as his parents, and that Jason
would suffer severe and enduring harm if his relationship with his resource
parents was severed.
Dr. Stilwell further testified that Jacob had a secure attachment to his
resource parent, who has provided him with care, nurturing, and support for
almost the entirety of his life. Dr. Stilwell explained that Jacob viewed his
resource parent as his primary caregiver, attachment figure, and psychological
parent, and that severing his relationship with his resource parent would cause
him severe and enduring harm. In contrast, Dr. Stilwell opined that Jacob did
not have a secure attachment with either Meg or Randall, and that any disruption
caused by the termination of their parental rights to him would not result in
severe or enduring harm to the child.
27 A-2802-19
Dr. Stilwell opined Heather would experience "very minimal" disruption
if Meg's and Randall's parental rights were terminated because Heather was too
young to have formed any attachments with them. Dr. Stilwell further explained
that none of the children would suffer significant or enduring harm from the
termination of either Meg's or Randall's parental rights, and any harm they might
suffer would be mitigated by their placements in, or continued placements in,
stable and secure homes.
During cross-examination, Dr. Stilwell was asked why she did not update
her report during the nine-month period following her evaluations and the
guardianship trial. Dr. Stilwell explained she was not asked to update her report,
but she did review and consider new information prior to her trial testimony.
The information pertained to Meg completing services and obtaining
employment following Dr. Stilwell's evaluations.
Dr. Stilwell testified the new information did not alter her opinions
concerning Meg's inability to parent the children. For example, Dr. Stilwell
opined that Meg did not benefit from completion of services because she
continued to have a relationship with and rely on Randall. Dr. Stilwell was not
persuaded the new information established Meg benefitted from the treatment
because no one had observed any actual change in Meg's behavior and Meg had
28 A-2802-19
a history of providing inconsistent narratives to service providers. Dr. Stilwell
further noted the clinician who oversaw Meg's most recent treatment may not
have been aware of Meg's history.
Called by her Law Guardian, then ten-year-old Karen testified at trial that
she did not want to be adopted. Instead, she preferred to live with Meg.
The Law Guardian for Karen and Jasmine also called Dr. Wells, who
testified as an expert in psychology and bonding. She performed a psychological
evaluation of Meg, and bonding evaluations with Meg and the children, and
Karen and Jasmine and their resource parents.
During her Dr. Wells' evaluation, Meg minimized her domestic violence
history and provided information that was inconsistent with prior reports Dr.
Wells reviewed. Meg repeated versions of events that she had previously
acknowledged were untrue. Dr. Wells found Meg had "an underdeveloped
appreciation of the difficulties her children endured while in her care as a result
of domestic violence, transience, and uncertainty."
Dr. Wells found Meg "continue[d] to demonstrate characteristics
indicating that she is neither emotionally nor psychologically equipped to
address the day-to-day demands of attending to herself, managing the home, and
responding to the educational, social, emotional, [and] psychological needs
29 A-2802-19
presented by" Karen, Zack, and Jasmine. Dr. Wells found the children did not
view Meg as their primary caretaker, the bond between Meg and the children
was insecure, and reunification was "clinically contraindicated."
Dr. Wells found, however, that termination of Meg's parental rights would
cause irreparable and enduring harm to the children, and she recommended that
the permanency offered by a guardianship order should be delayed for nine
months to permit Meg an opportunity to further take advantage of services. Dr.
Wells acknowledged the children had suffered, and would continue to suffer,
harm from their lack of permanency during the nine-month period she suggested.
Subsequent to the closing arguments of counsel, the court issued a
thorough written decision summarizing the evidence and detailing its findings
of fact and conclusions of law based on the evidence presented concerning each
child. The court found the Division clearly and convincingly established each
of the four prongs of the best-interests-of-the-child statutory standard, N.J.S.A.
30:4C-15.1(a)(1) to (4); see also N.J. Div. of Youth & Fam. Servs. v. A.R., 405
N.J. Super. 418, 443 (App. Div. 2009) (noting "the four prongs must be
evaluated separately as to each child"), and, in pertinent part, concluded
termination of Meg's parental rights is in the best interests of Karen, Jasmine,
Jason, Jacob, and Heather, and found termination of Randall's parental rights is
30 A-2802-19
in Jacob's and Heather's best interests. 7 The court also found the Division failed
to sustain its burden of establishing it was in Zack's best interest to terminate
Meg's parental rights. The court entered a February 25, 2020 guardianship order
reflecting its decision. These appeals and the cross-appeal followed.
Subsequent to the submission of the parties' merits briefs, the Law
Guardian for Karen and Jasmine submitted letters to this court advising that
Karen's and Jasmine's placements had changed following entry of the
guardianship judgment. 8
The letters explained that on March 2, 2020, Karen and Jasmine were
placed together in a resource home different from the one in which they had
been residing at the time of trial. Karen was subsequently removed from the
new resource home on December 15, 2020, and, the following day, was moved
to a non-adoptive treatment home.
Meg moved before this court to: supplement the record with the Law
Guardian's three letters; vacate the guardianship judgment's termination of her
7
As noted, the court also found it was in Karen's, Jasmine's, and Jason's best
interests to terminate Greg's parental rights to them. The court also found the
Division failed to clearly and convincingly establish grounds supporting the
termination of Greg's parental rights to Zack.
8
Two letters are dated September 30, 2020, and one letter is dated December
21, 2020.
31 A-2802-19
parental rights to Karen and Jasmine; and remand the matter for the trial court
to reconsider its determination of prong four of the best-interests standard as to
Karen and Jasmine based on their changed placements. 9 The Division filed
opposition to Meg's motion, arguing the information concerning Karen's and
Jasmine's changed placements did not warrant a remand for reconsideration of
the guardianship judgment. Because the motion was submitted to the court just
prior to the scheduled calendar date, we deemed it appropriate to decide the
motion in the context of our consideration of the parties' arguments on appeal.
We grant the motion to supplement the record with the three letters. They
were submitted in accordance with the requirement that parties advise this court
by letter of "any change in the placement status of [a] child during the pendency
of [an] appeal" from a guardianship matter, R. 2:6-11(f), and none of the parties
dispute the accuracy of the information in the letters. In our discussion of the
merits of the appeals and cross-appeal, we address Meg's motion to vacate the
guardianship order as to Karen and Jasmine and for a remand for the court to
reconsider whether termination of Meg's parental rights will do more harm than
good under the fourth prong of the best-interests-of-the-child statutory standard,
N.J.S.A. 30:4C-15.1(a)(4).
9
Meg's motion to supplement the record is docketed as M-2543-20.
32 A-2802-19
II.
"[P]arents have a constitutionally protected, fundamental liberty interest
in raising their biological children." N.J. Div. of Youth & Fam. Servs. v. T.S.,
417 N.J. Super. 228, 240 (App. Div. 2010) (citation omitted). "Th[is]
fundamental parental right, however, is not without limitation." N.J. Div. of
Youth & Fam. Servs. v. E.P., 196 N.J. 88, 102 (2008). The State, as parens
patriae, has a "responsibility to protect the welfare of children." In re
Guardianship of J.N.H., 172 N.J. 440, 471 (2002). Thus, "[w]hen the safety and
welfare of a child become so irredeemably jeopardized by parental abuse or
neglect, the State may take the most extreme form of action, which is to
completely sever the relationship between a mother or father and a child." E.P.,
196 N.J. at 102.
We first summarize the well-established principles that guide our review.
To determine whether termination of parental rights is appropriate, a court will
apply the "best interests of the child" standard. T.S., 417 N.J. Super. at 241.
Under the standard, a court may terminate a person's parental rights if the
Division establishes 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;
33 A-2802-19
(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 [or her] 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 E.P., 196 N.J. at 103.]
The four prongs of the standard require a fact-sensitive analysis, and "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 & Fam. Servs. v. M.M., 189 N.J. 261, 280 (2007) (quoting N.J. Div.
of Youth & Fam. Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005));
see also In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
"[T]he scope of [our] review of a trial court's decision to terminate
parental rights is limited." T.S., 417 N.J. Super. at 240. A reviewing court "will
not disturb the family court's decision to terminate parental rights when there is
34 A-2802-19
substantial credible evidence in the record to support the court's findings." E.P.,
196 N.J. at 104. Generally, we will defer to the trial court's factual findings
"because it observed the witnesses, weighed their credibility, and had the best
'"feel" of the case.'" M.M. 189 N.J. at 293 (citation omitted). "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." E.P., 196 N.J. at 104 (quoting N.J. Div. of Youth & Fam.
Servs. v. G.L., 191 N.J. 596, 605 (2007)). We review a trial court's legal
interpretations de novo. N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J.
527, 552 (2014).
On appeal, Meg argues for the first time the court erred by relying on Dr.
Stilwell's expert opinion, which Meg contends constituted an inadmissible net
opinion. Meg, Randall, and the Law Guardian for Karen and Jasmine further
claim the court erred by finding it was in the best interests of the children to
terminate parental rights. Meg challenges the court's findings as to prongs one,
two, and four; Randall challenges the court's findings as to all four prongs; and
the Law Guardian challenges the court's findings as to prongs two, three, and
four.
35 A-2802-19
A.
We first consider Meg's contention that the court erred by considering and
relying on Dr. Stilwell's opinion because it constituted an inadmissible net
opinion. We reject the argument for two reasons. First, Meg failed both to move
to bar Dr. Stilwell's testimony prior to trial or object to her testimony based on
a contention Dr. Stilwell offered an inadmissible net opinion. We generally do
not consider an argument raised for the first time on appeal, see State v.
Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229,
234 (1973), and we reject Meg's claim for that reason alone. Moreover, and for
purposes of completeness, we find no merit to Meg's argument.
"N.J.R.E. 703 'addresses the "bases of opinion testimony by experts."'"
Polzo v. Cnty. of Essex, 196 N.J. 569, 582 (2008) (quoting State v. Townsend,
186 N.J. 473, 494 (2006)). The rule requires that an expert's opinion be based
on "facts or data derived from (1) the expert's personal observations, or (2)
evidence admitted at the trial, or (3) data relied upon by the expert which is not
necessarily admissible in evidence but which is the type of data normally relied
upon by experts." Townsend v. Pierre, 221 N.J. 36, 53 (2015) (quoting Polzo,
196 N.J. at 583).
36 A-2802-19
A "corollary" of N.J.R.E. 703 is the "net opinion" rule, which prevents the
admission of an expert's opinion into evidence when the opinion is not supported
by facts or data. Ehrlich v. Sorokin, 451 N.J. Super. 119, 134 (App. Div. 2017).
"A net opinion is 'a bare conclusion unsupported by factual evidence.'" Ibid.(quoting Creanga v. Jardal, 185 N.J. 345, 360 (2005)). Thus, for an expert's
opinion to be admissible, the "expert must '"give the why and wherefore" that
supports the opinion, "rather than a mere conclusion."'" Borough of Saddle
River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013) (quoting Pomerantz
Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)). "[E]xperts [must]
'be able to identify the factual bases for their conclusions, explain their
methodology, and demonstrate that both the factual bases and the methodology
are reliable.'" Townsend, 221 N.J. at 55 (quoting Landrigan v. Celotex Corp.,
127 N.J. 404, 417 (1992)).
Here, Dr. Stilwell explained in detail the facts supporting the opinions she
offered concerning Meg's parenting, psychological, and behavioral issues; the
bonds between Meg and her children, and the children and their respective
resource parents; and Meg's inability to safely and securely parent her children.
The facts were properly gleaned from Division records; Dr. Stilwell's
psychological and bonding evaluations; Dr. Stilwell's observations of Meg, the
37 A-2802-19
children, and the resource parents; Meg's statements; and other records admitted
in evidence. Dr. Stilwell detailed the objective tests she employed to assess
Meg's psychological issues and the methodology she employed to form the
opinions she related during her testimony. Dr. Stilwell further testified that the
methodology she employed to evaluate Meg and Randall, and to conduct her
bonding evaluations, was in accord with accepted standards in her areas of
expertise. Contrary to Meg's conclusory assertions, Dr. Stilwell provided the
"why and wherefore" of her opinions, which the court properly admitted and
accepted. See Borough of Saddle River, 216 N.J. at 144 (quoting Pomerantz
Paper Corp., 207 N.J. at 372).
Meg also argues Dr. Stilwell's testimony should not have been admitted
because Dr. Stilwell did not consider Meg's completion of a program in her
assessment of Meg's parenting ability and prospect for safely parenting the
children in the future. Meg completed a program subsequent to the
psychological evaluation upon which much of Dr. Stilwell's opinion testimony
was based, but at trial Dr. Stilwell addressed Meg's participation in the program
and explained in detail why it did not change her opinions concerning Meg's
parenting ability or prospects for parenting in the future.
38 A-2802-19
An expert's testimony is not "inadmissible merely because it fails to
account for some particular condition or fact which the adversary considers
relevant." Fin. Servs. Vehicle Tr. v. Panter, 458 N.J. Super. 244, 259 (App. Div.
2019) (quoting State v. Freeman, 223 N.J. Super. 92, 116 (App. Div. 1988)).
"The expert's failure 'to give weight to a factor thought important by an adverse
party does not reduce his [or her] testimony to an inadmissible net opinion if he
[or she] otherwise offers sufficient reasons which logically support his [or her]
opinion.'" Townsend, 221 N.J. at 54 (quoting Rosenberg v. Tavorath, 352 N.J.
Super. 385, 402 (App. Div. 2002)). Rather, an expert's alleged failure to
consider or give appropriate weight to a factor goes to the "weight or
persuasiveness" a fact finder should attribute to the opinion. Fin. Servs. Vehicle
Tr., 458 N.J. Super. at 259.
The fact that Dr. Stilwell did not modify her evaluation of Meg prior to
trial to address Meg's completion of a program did not render Dr. Stilwell's
testimony inadmissible. See Townsend, 221 N.J. at 54. The court appropriately
admitted Dr. Stilwell's expert opinion testimony and gave it the weight to which
the court reasonably determined it was entitled. We reject Meg's claim to the
contrary.
39 A-2802-19
B.
Meg and Randall contend the court erred by finding the Division presented
sufficient evidence satisfying its burden under the first prong of the best-
interests standard. The Law Guardian for Karen and Jasmine does not make a
similar claim. The Division and the Law Guardian for Jason, Jacob, and Heather
argue the Division presented clear and convincing evidence satisfying its burden
as to Meg and Randall as it applies separately to them and each of the children.
To satisfy its burden under the first prong, "the State [must] demonstrate
harm to the child by the parent," which, "in this context, involves the
endangerment of the child's health and development resulting from the parental
relationship." K.H.O., 161 N.J. at 348. The focus is not on a "single or isolated
harm," but "on the effect of harms arising from the parent-child relationship over
time on the child's health and development." Ibid. Prong one "addresses the
risk of future harm to the child as well as past physical and psychological harm."
N.J. Div. of Youth & Fam. Servs. v. H.R., 431 N.J. Super. 212, 222 (App. Div.
2013). "Courts need not wait to act until a child is actually irreparably impaired
by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365,
383 (1999).
40 A-2802-19
The harm may be established by "a delay in establishing a stable and
permanent home." Ibid. "A parent's withdrawal of . . . solicitude, nurture, and
care for an extended period of time is in itself a harm that endangers the health
and development of the child." Id. at 379 (citing K.H.O., 161 N.J. at 352-54).
Additionally, a parent's "persistent failure to perform any parenting functions
and to provide . . . support for [the child] . . . constitutes a parental harm to that
child arising out of the parental relationship [that is] cognizable under N.J.S.A.
30:4C-15.1(a)(1) and (2)." Id. at 380-81. Moreover, "prolonged inattention by
natural parents that permits the development of disproportionately stronger ties
between a child and [resource] parents may lead to a bonding relationship the
severing of which would cause profound harm—a harm attributable to the
natural parents . . . ." In re Guardianship of J.C., 129 N.J. 1, 18 (1992).
Here, the record supports the court's finding Meg and Randall have
harmed and will continue to pose a risk of harm to their respective children. As
the trial court explained in detail, Meg has a significant and consistent history
of relationships characterized by domestic violence with her paramours. During
her relationships with the fathers of her children, Greg and Randall, Meg
committed acts of domestic violence and was victimized by their acts of
domestic violence. Some of the children have witnessed acts of domestic
41 A-2802-19
violence, as well as the injuries Meg suffered over the years as a result of
domestic violence.
The evidence further showed the Division first became involved with Meg
in 2011, when Zack was injured during a domestic violence incident between
Meg and Greg, and Randall has a criminal history related to acts of domestic
violence against other paramours prior to his relationship with Meg.
Additionally, following years of attempts to provide services for Meg and
Randall to address their respective issues with domestic violence, they were
involved in a domestic violence incident with each other and a third party just a
few months prior to the guardianship trial. At various times, Meg and Randall
have rendered themselves unavailable to care for the children because they have
been incarcerated following arrests resulting from domestic violence incidents.
The evidence establishing Meg's and Randall's respective histories of
domestic violence, their ongoing interdependent relationship, and Meg's history
of relying on Greg and Randall for housing, amply supports the court's
determination Meg and Ryan have harmed, and continue to pose a risk of harm
to, their respective children under N.J.S.A. 30:4C-15.1(a)(1). The harm, and
continued risk of harm, is further established by the unrebutted expert testimony
of Dr. Stilwell, who explained that the children's past exposure to domestic
42 A-2802-19
violence, and the risk of exposure to future acts of domestic violence by Meg
and Randall, results in harm to the children and the risk of future harm. 10 See
N.J. Div. of Child Prot. & Permanency v. N.T., 445 N.J. Super. 478, 491 (App.
Div. 2016) (explaining expert testimony may establish a child suffers harm from
exposure to domestic violence). Moreover, neither Meg nor Randall have
adequately addressed the issues that separately cause them to engage in acts of
domestic violence, and, as a result, it can be reasonably anticipated they will
continue to engage in the domestic violence that has characterized their
respective histories. See N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J.
420, 450-52 (2012) (finding a mother presented a risk of harm to her children
when she continued to have a relationship with a father who committed domestic
violence against her and she refused to seek treatment for her mental illnesses
and other parental deficits).
The risk of harm Meg and Randall separately pose to their respective
children was further established by the unrebutted testimony of Dr. Stilwell. She
10
There is evidence Karen, Jasmine, and Jason actually witnessed acts of
domestic violence. There is no evidence Jacob and Heather witnessed acts of
domestic violence, but, as noted, Meg and Randall pose an ongoing risk
exposing them to domestic violence due to their domestic violence histories and
their failures to address the issues giving rise to their proclivities to engage in
domestic violence against each other and their paramours.
43 A-2802-19
explained Meg and Randall both suffer from unresolved psychological issues
that render them incapable of providing a safe and secure home for the children.
Dr. Stilwell opined that Randall lacks the psychological and physical resources
to provide for the protection, safety, nurturing, and guidance of the children. Dr.
Stilwell noted Meg lacked insight into the reasons for the removal of her
children; Meg was emotionally overwhelmed when the demands of parenting
were placed on her; and Meg relied on paramours who, due to domestic violence
issues, present a risk to the children. Dr. Stilwell further opined Meg lacked the
psychological resources to meet her children's needs for safety, protection, and
guidance. Dr. Wells agreed; she opined Meg was presently incapable of safely
parenting her children.
Meg's and Randall's respective issues as detailed by Dr. Stilwell, as well
as their inability to provide housing for their children during the course of their
involvement with the Division, also delayed permanency for each child. Their
persistent and lengthy failures to fulfill their roles and responsibilities to provide
their children with the safe and secure home, guidance, and nurturing every child
deserves "constitutes a parental harm" to each of their children that is
"cognizable under" the first prong of the best-interests standard. D.M.H., 161
N.J. at 380-81. As the trial court correctly found, Meg's and Randall's respective
44 A-2802-19
failures to address the issues that have rendered them each unable to safely
parent their children also caused harm, and present a continuing risk of future
harm, by delaying each child's right to permanency. See id. at 383 (explaining
a parent's delay in providing a "stable and permanent home" constitutes harm
under the first prong of the best-interests standard). That harm alone also
supports the court's finding the Division clearly and convincingly satisfied its
burden under N.J.S.A. 30:4C-15.1(a)(1).
C.
Under 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). This
prong "is aimed at determining whether the parent has cured and overcome the
initial harm that endangered the health, safety, or welfare of the child, and is
able to continue a parental relationship without recurrent harm to the child."
K.H.O., 161 N.J. at 348. Prong two "can be satisfied by establishing that a
parent is unable to protect a child from the dangers posed by another parent."
F.M., 211 N.J. at 451-52 (finding the Division established prong two when a
parent recanted instances of domestic violence and denied being in a relationship
45 A-2802-19
with a partner who refused to treat his substance abuse issues and mental
illness); see also N.J. Div. of Youth & Fam. Servs. v. F.H., 389 N.J. Super. 576,
617-18, 623 (App. Div. 2007) (holding the Division established prong two as to
one child when the parents refused to acknowledge their role in the unexplained
trauma experienced by that child under their care). The Division may also prove
prong two by establishing "the parent is unable to provide a safe and stable home
for the child and that the delay in securing permanency continues or adds to the
child's harm." K.H.O., 161 N.J. at 348-49.
We agree with the court's finding the Division presented clear and
convincing evidence Meg and Randall are either unwilling or unable to address
and correct the issues that resulted in the removal of their respective children.
Meg argues the court erred because the evidence showed she completed some
services following Dr. Stilwell's evaluation, and that Dr. Stilwell failed to
consider the progress she made in completing the services in her evaluation of
Meg. We are not persuaded.
Meg does not dispute that over the many years she has been involved with
the Division she has been offered innumerable and varied services directed to
addressing the issues that resulted in the removal of her children. The record
shows, however, her compliance with services has been inconsistent. For
46 A-2802-19
example, she consistently failed to utilize the domestic violence liaison that was
offered on many occasions, and she continued to minimize the harm to the
children posed by her unresolved issues related to domestic violence, both as a
victim and as a perpetrator. Meg also ignores that Dr. Stilwell addressed Meg's
completion of some services prior to the trial, but discounted the importance of
the completion because of Meg's long history of not benefitting from services
that were provided. See, e.g., N.J. Div. of Youth & Fam. Servs. v. L.J.D., 428
N.J. Super. 451, 484 (App. Div. 2012) (explaining a parent's long-term effort to
gain the ability to safely parent his or her child must yield "to an expeditious,
permanent placement to promote the child's well-being"). The court had the
benefit of the evidence demonstrating Meg's completion of services and Dr.
Stilwell's testimony concerning how the completion of services did not change
her assessment of Meg. The court accepted as credible Dr. Stilwell's testimony
that although Meg completed some services, she continued her reliance on
Randall, and the evidence otherwise established she is unable to safely parent
her children. We defer to the court's credibility determination and findings of
fact because they are supported by evidence the court deemed credible. See
E.P., 196 N.J. at 104.
47 A-2802-19
Furthermore, the court's findings on prong two as to Meg and Jason and
Jacob are further supported by Dr. Stilwell's unrebutted testimony that the
children would suffer severe and enduring harm if their relationships with their
respective resource parents were severed. See L.J.D., 428 N.J. Super. at 494
(finding an expert's testimony that a child's separation from his resource parents
would cause him "serious and enduring emotional harm" sufficiently satisfied
prong two).
Randall argues he completed an anger management program and a
batterer's intervention program, provided housing for Meg that was suitable for
the children, and had employment and plans for future employment. He
contends that, for those reasons, the court erred by finding he was unwilling or
unable to eliminate the harm to Jacob and Heather. Again, we are not persuaded.
We agree with the Division and the Law Guardian for Jason, Jacob, and
Heather that there is substantial credible evidence supporting the court's
determination that Randall is unwilling or unable to provide the children with a
safe and stable home and the delay of permanent placement will add to the harm.
As the trial court found, Randall's long history of domestic violence with others
and Meg posed an ongoing risk to his children that he consistently minimized
and failed to address. He advised Dr. Stilwell he did not need a batterer's
48 A-2802-19
intervention plan but would participate in an anger management class because it
was "shorter." He denied domestic violence incidents with Meg, even though
she had visible injuries she attributed to him, and he described domestic violence
incidents in his past as "play fight[ing]." He reported completing a batterer's
intervention program, but Dr. Stilwell testified the program was a general
therapy program, not a batterer's intervention program.
Again, the court found Dr. Stilwell's testimony credible, and accepted her
opinion that Randall posed a risk of continuing domestic violence because he
had failed to acknowledge his domestic violence history or adequately complete
services that resolved the issues causing his violence against Meg and others.
Dr. Stilwell further testified Randall's psychological traits and issues render him
incapable of providing Jacob and Heather with the protection, safety, guidance,
and nurturing of a capable parent. That testimony is unrebutted.
Dr. Stilwell's testimony supports the court's finding on the second prong
of the best-interests standard. Randall is incapable of parenting the children,
and his continued resort to domestic violence, and his lack of acknowledgment
of it even after receiving treatment, establishes Randall is unwilling or unable
to eliminate the harm to Jacob and Heather. See, e.g., N.J. Div. of Youth &
Fam. Servs. v. L.M., 430 N.J. Super. 428, 444 (App. Div. 2013) (finding a
49 A-2802-19
parent's continued drug use, failure to attend treatment, and inability to seek
appropriate housing all posed a risk to her children); N.J. Div. of Youth & Fam.
Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996) (finding a parent's
"inability or unwillingness to resolve the problems with respect to her mental
health and substance abuse" satisfied the second prong of the best-interests-of-
the-child standard). 11
D.
Prong three requires that the Division demonstrate it "made reasonable
efforts to provide services to help the parent correct the circumstances which led
to the child's placement outside the home," and that the court "consider[]
alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). Prong
three "contemplates efforts that focus on reunification." K.H.O., 161 N.J. at
354. The services offered must be reasonable under the circumstances and
tailored to the needs of each parent. D.M.H., 161 N.J. at 390. However,
11
We also note Dr. Stilwell's unrebutted testimony that Jacob would suffer
severe and enduring harm if separated from his resource parents, supports the
court's finding of prong two as to Jacob. See L.J.D., 428 N.J. Super. at 494.
The evidence further established Randall had an unstable employment history,
and the status of his housing situation could not be assessed because he would
not provide the Division with his address.
50 A-2802-19
"[e]xperience tells us that even [the Division's] best efforts may not be sufficient
to salvage a parental relationship." F.M., 211 N.J. at 452.
The record supports the court's conclusion the Division provided "a
plethora of services to" Meg and Randall in addressing their respective
circumstances and issues that led to the removal of their children from their
respective care and custody. Additionally, the Division "assessed several
relatives for placement," and none provided an alternative to termination of
Meg's and Randall's parental rights to the children.
Meg does not dispute the Division satisfied its burden of proving it
provided reasonable services to her. Randall asserts the Division failed to
provide reasonable services to assist him in finding suitable housing and
insufficient time with his children to develop a bond. We find the argument
lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
We note only that the Division offered Randall innumerable services,
many of which he either refused or failed to complete. The Division also
referred Randall to a service for housing, but he was rejected because of his
domestic violence history. Randall was also rejected by another housing service
because he was not homeless and his income exceeded the qualification limit,
51 A-2802-19
which meant he was ineligible for the service. Randall also advised the Division
he resided with his girlfriend, but he refused to provide an address, and there
were periods of time he did not remain in contact with the Division. Randall's
claim the Division did not offer him sufficient time with Jacob and Heather is
belied by his inconsistent attendance at the visitations the Division arranged,
and his failure to attend any of the visitations with the children in the months
immediately preceding the guardianship trial. 12
E.
Meg and Randall argue the guardianship order should be reversed because
the Division failed to clearly and convincingly prove termination of their
respective parental rights will not do more harm than good. The Law Guardian
for Karen and Jasmine similarly contends the court erred by finding the Division
satisfied its burden under the fourth prong of the best-interests standard. The
12
We need not address the argument made by the Law Guardian for Karen and
Jasmine that the Division failed to inform the children's resource parents of the
option to care for the children as kinship legal guardians instead of through
adoption. The record lacks evidence establishing the resource parents had the
"biological, legal, extended or committed emotional or psychological
relationship with" the children that is required for a kinship legal guardianship.
N.J. Div. of Child Prot. & Permanency v. M.M., 459 N.J. Super. 246, 260 (App.
Div. 2019) (quoting N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 508
(2004)). Additionally, the issue is moot because Karen and Jasmine are no
longer with the resource parents with whom they resided, and who were
committed to adoption, at the time of the guardianship trial.
52 A-2802-19
Law Guardian for Jason, Jacob, and Heather asserts the Division presented
ample evidence supporting the court's determination. In our consideration of
the arguments presented, we separately consider, as we must, the evidence
presented as to each child and each parent. See M.M., 189 N.J. at 288 ("Parental
rights are individual in nature and due process requires that fitness be evaluated
on an individual basis."); see also A.R., 405 N.J. Super. at 443 (observing "the
four prongs must be evaluated separately as to each child").
"[T]he fourth prong 'serves as a fail-safe against termination even where
the remaining standards have been met.'" R.G., 217 N.J. at 559 (quoting E.P.,
196 N.J. at 108). It "requires that [the Division] prove by clear and convincing
evidence that '[t]ermination of parental rights will not do more harm than good.'"
N.J. Div. of Youth & Fam. Servs. v. I.S., 202 N.J. 145, 180-81 (2010) (second
alteration in original) (quoting N.J.S.A. 30:4C-15.1(a)(4)). In deciding if the
Division has proved prong four, the court must determine "whether, after
considering and balancing the two relationships, the child will suffer a greater
harm from the termination of ties with [his or] her natural parents than from the
permanent disruption of [his or] her relationship with [his or] her [resource]
parents." K.H.O., 161 N.J. at 355; see also F.M., 211 N.J. at 453-54 (holding
termination of the defendant's parental rights would not do more harm than good
53 A-2802-19
where the child's attachment to the resource parent was stronger than the child's
attachment to the legal parent); N.J. Div. of Child Prot. & Permanency v.
N.C.M., 438 N.J. Super. 356, 372-73 (App. Div. 2014) (concluding the Division
satisfied the fourth prong with expert testimony that the children had developed
a "secure[] attach[ment]" to their resource parent but had only an "insecure
attachment" to their legal parent).
Our Supreme Court has explained that "[t]o satisfy the fourth prong, the
State should offer testimony of a well[-]qualified expert who has had full
opportunity to make a comprehensive, objective, and informed evaluation of the
child's relationship with both the natural parents and the [resource] parents."
F.M., 211 N.J. at 453 (quoting M.M., 189 N.J. at 281). An important factor
under the fourth prong, is "[a] child's need for permanency," ibid. (alteration in
original) (quoting M.M., 189 N.J. at 281), because "a child has a right to live in
a stable, nurturing environment and to have the psychological security that his
[or her] most deeply formed attachments will not be shattered," ibid.We first address the termination of Meg's parental rights to Jason, Jacob,
and Heather, and the termination of Randall's parental rights to Jacob and
Heather, because those children were in pre-adoptive homes at the time of trial,
and we have not been advised those circumstances changed following the
54 A-2802-19
guardianship order. We next consider the termination of Meg's parental rights
to Karen and Jasmine because the parties do not dispute that Karen's and
Jasmine's placements changed following the trial, and we have pending before
us Meg's motion to remand the case to the trial court for reconsideration of the
judgment of guardianship as to Karen and Jasmine.
The evidence supports the court's finding the Division clearly and
convincingly established the termination of Meg's parental rights to Jason,
Jacob, and Heather, and Randall's parental rights to Jacob and Heather, will not
do more harm than good. The court accepted Dr. Stilwell's testimony that
although Jason and Jacob had attachments to Meg, they did not view her as their
parental figure, and they each had a secure relationship with their resource
parents, who they viewed as their psychological parents and who are committed
to adoption. Dr. Stilwell explained Jason and Jacob would both suffer severe
and enduring harm if their relationships with their resource parents were severed
and that Meg is unable to mitigate the harm they will suffer if their respective
relationships with their resource parents end because Meg continues to be unable
to safely parent them.
Dr. Stilwell similarly testified that Jacob has a "familiarity" with Randall,
but Jacob did not view Randall as a primary attachment figure. Dr. Stilwell
55 A-2802-19
explained that Jacob views his resource parent as a "significant and central
parental figure," and considers his resource parent his psychological parent.
According to Dr. Stilwell, termination of Randall's parental rights would cause
a minimal disruption in Jacob's life, but termination of his relationship with his
resource parent would result in severe and enduring harm to the child. The
evidence also demonstrated Randall is unable to mitigate any harm caused by
the termination of Jacob's relationship with his resource parent because Randall
is incapable of safely parenting the child and will remain incapable in the
foreseeable future.
Dr. Stilwell noted that Meg's and Randall's respective absences in
Heather's life due to their respective inabilities to properly parent the child
support the conclusion that Heather does not have a secure bond with either of
her parents. Dr. Stilwell further reasoned that Heather enjoys a significant
attachment to her resource parent who has cared for, nurtured, and provided a
home for the child since her birth. See, e.g., I.S., 202 N.J. at 182 (finding expert
testimony based on a comparison of bonding evaluations is not required in an
instance involving a "common sense notion that [a] child will be more bonded
with his [or her resource] parents than with [the] defendant"); see also N.C.M.,
438 N.J. Super. at 372-73 (finding an expert's unrebutted opinion that the
56 A-2802-19
children were "securely attached" to the resource parent but had an "insecure
attachment" to the parent proved prong four). Moreover, and again, neither Meg
nor Randall can mitigate the harm that will befall Heather if her relationship
with her resource parent ends because they each remain incapable of properly
parenting their children. See B.G.S., 291 N.J. Super. at 593 (noting a child's
need for permanency and a parent's inability to provide a safe and secure home
for the child in the foreseeable future support a finding that termination of
parental rights will not do more harm than good).
We separately address the court's finding the Division clearly and
convincingly established that termination of Meg's parental rights to Karen and
Jasmine will not do more harm than good. Meg and the Law Guardian for Karen
and Jasmine first contend the evidence presented at trial did not support the
court's finding.
Based only on the evidence presented at trial, we would conclude the
court's determination that the termination of Meg's parental rights would not do
more harm than good is again supported by the testimony of Dr. Stilwell, who
the court found credible. She testified that, based on her bonding evaluations,
Meg had relationships with Karen and Jasmine that were insecure; Karen and
Jasmine were developing strong relationships with the resource parents with
57 A-2802-19
whom they had been residing for a few months; and termination of Meg's
parental rights would provide Karen and Jasmine with an opportunity for
permanency which Meg did not offer, and would be incapable of providing for
the foreseeable future. Dr. Wells offered a different view of Karen's and
Jasmine's respective relationships with Meg, but the court found Dr. Stilwell's
testimony more credible and persuasive. Thus, if our decision concerning the
Division's proofs on the fourth prong was limited to the trial evidence, we would
discern no basis to reverse the court's determination.
In her pending motion to supplement the record and vacate the
guardianship order, Meg contends that a remand is required for reconsideration
of the court's finding on the fourth prong as to Karen and Jasmine. Meg claims
that an important factor in the court's analysis of the fourth prong—the putative
permanency of a resource home committed to adoption—is no longer extant. As
noted, subsequent to the entry of the guardianship order, Karen and Jasmine
were removed from the resource home committed to adoption in which they
resided at the time of trial and were placed in separate resource homes. Karen
was later moved twice to new placements.
We agree with Meg that it is appropriate to vacate the guardianship order
as to the court's prong four determination as to Karen and Jasmine. The trial
58 A-2802-19
court's finding on prong four as to those two children is founded in part on the
permanency that Karen's and Jasmine's then-resource parents offered through
their commitment to adopt the children. In its balancing of the effects of a
termination of Meg's parental rights to the children, the court noted that any
harm either child might suffer from the termination of their relationship with
Meg "would be mitigated by continued therapy and the presence of their
resource parents." The putative permanency offered at the time by Karen's and
Jasmine's resource parents was essential to the court's determination the
Division satisfied its burden under the fourth prong. Indeed, Dr. Stilwell
testified in part that termination of Meg's parental rights to the children would
not do more harm than good because of the stability and security that was to be
provided by the putative adoptive parents. Moreover, it was the absence of a
resource home committed to adoption for Zack, and his limited prospects for a
select home adoption, that caused the court to conclude the Division failed to
sustain its burden under prong four as to Meg and him.
Karen's and Jasmine's placements subsequent to the entry of the
guardianship order require a reexamination of the fourth prong as to Meg and
the two children. The current record, even as supplemented by Meg's motion,
does not provide the reasons for the changes in placement, the children's status
59 A-2802-19
in their current placements, their prospects for adoption with their current
resource parents or otherwise, or the Division's permanency plan based on the
children's current circumstances. That information is essential to a
determination whether, based on the children's changed circumstances, the
termination of Meg's parental rights will cause the children more harm than
good.
We are mindful Karen and Jasmine have been in placement for many years
and "a child's need for permanency is an extremely important consideration
pursuant to" the fourth prong. R.G., 217 N.J. at 559. The evidence established
Meg's longstanding parental unfitness and that she will be unable to properly
parent the children in the foreseeable future. Termination of parental rights
based on parental unfitness, and not on a child's bond with his or her resource
family, requires a prong four determination of the child's need for permanency
and the parent's ability—or inability—to provide the child with a safe and stable
home "in the foreseeable future." B.G.S., 291 N.J. Super. at 593. But it is
"recognized that terminating parental rights without any compensating benefit,
such as adoption, may do great harm to a child." E.P., 196 N.J. at 109. The
harm may result "when a child is cycled through multiple [resource] homes after
a parent's rights are severed," ibid., and that harm "may be greater than keeping
60 A-2802-19
the parent-child relationship intact since the child's psychological and emotional
bond to the parent may have been broken with nothing substituted in its place,"
ibid. (quoting N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J 591, 611
(1986)).
"A court should hesitate to terminate parental rights in the absence of a
permanent plan that will satisfy the child's needs." B.G.S., 291 N.J. Super. at
593; see A.W., 103 N.J. at 611 (acknowledging the "unfortunate truth that not
all children, who are 'freed' from their legal relationship with their parents, find
the stable and permanent situation that is desired even though this is the implicit
promise made by the State when it seeks to terminate the parent-child
relationship" (quoting In re Angelia P., 623 P.2d 198, 210 (Cal. 1981))). We
hesitate here because we cannot properly determine for the first time on appeal
that termination of Meg's parental rights will not do more harm than good where
we lack evidence and a full record concerning the significant change in
circumstances concerning the children's respective placements and their current
prospects for permanency through adoption. We also cannot affirm the
termination of Meg's parental rights because both children have bonds, albeit
insecure ones, with Meg, and the record as supplemented permits only a
determination that the promise of permanency with the children's former
61 A-2802-19
resource parents, which the court found essential to its prong four determination,
has been unfulfilled. 13 The court must consider the entire record, as well as any
evidence related to the circumstances following entry of the guardianship order,
to properly determine whether the Division has clearly and convincingly
established termination of Meg's parental rights to each child, with or without
the child's placement in an adoptive home, will not do more harm than good.
We therefore vacate the guardianship order terminating Meg's parental
rights to Karen and Jasmine. We remand for the court to determine whether the
termination of Meg's parental rights to Karen and Jasmine will not do more harm
than good under N.J.S.A. 30:4C-15.1(a)(4). 14 The court shall allow such
discovery and expeditiously conduct such proceedings it deems appropriate to
make the determination. The court shall make separate prong four
determinations as to Karen and Jasmine based on the evidence presented. If the
court determines termination of Meg's parental rights will not do more harm
than good as to a child, the court shall enter a final guardianship order as to that
13
We note Karen testified at trial that she preferred residing with Meg, if she
could obtain housing, over the then-intended adoption by her resource parents.
14
As noted, we affirm the court's findings the Division clearly and convincingly
established prongs one, two, and three as they relate to the termination of Meg's
parental rights to Karen and Jasmine.
62 A-2802-19
child. If the court determines the Division failed to sustain its burden to clearly
and convincingly satisfy prong four as to a child, the court shall enter an order
dismissing the Division's complaint for guardianship as to that child.
In sum, we affirm the guardianship order terminating Meg's parental rights
to Jason, Jacob, and Heather, and terminating Randall's parental rights to Jacob
and Heather. We affirm the court's determination the Division carried its burden
of presenting clear and convincing evidence establishing the first three prongs
of the best-interests standard supporting the termination of Meg's parental rights
to Karen and Jasmine. We vacate the guardianship order as to the termination
of Meg's parental rights to Karen and Jasmine, and remand for reconsideration
of the fourth prong of the best-interests standard as to Karen and Jasmine in light
of the information concerning their changed placements that was provided
following entry of the guardianship order and for which we have granted leave
to supplement the record on appeal. On remand, the court shall permit and
conduct such proceedings and hearings it deems appropriate to allow the parties
to fully address the circumstances relevant to a proper consideration of the
fourth prong of the standard. Nothing in this opinion shall be construed as an
opinion on the merits of the issues to be addressed on remand.
63 A-2802-19
Affirmed as to A-2805-19. As to A-2802-19, affirmed in part, vacated in
part, and remanded for further proceedings consistent with this opinion. We do
not retain jurisdiction. 15
15
As to M-2543-20, we grant the motion to supplement the record. Given our
disposition of the appeal on the merits, we deny as moot Meg's motion to vacate
the guardianship order as to Karen and Jasmine and remand for further
proceedings. We shall enter a separate order reflecting our disposition of the
motion.
64 A-2802-19