Dcpp v. T.M. and S.M., in the Matter of the Guardianship of J.M., B.M., and S.M. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-2926-22
A-2927-22
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
T.M. and S.M.,
Defendants-Appellants.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF J.M.,
B.M., and S.M., minors.
_________________________
Argued October 9, 2024 – Decided November 27, 2024
Before Judges Paganelli and Torregrossa-O'Connor.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FG-02-0035-22.
Ryan T. Clark, Designated Counsel, argued the cause
for appellant T.M. (Jennifer Nicole Sellitti, Public
Defender, attorney; Ryan T. Clark, on the briefs).
Kathleen Gallagher, Designated Counsel, argued the
cause for appellant S.M. (Jennifer Nicole Sellitti,
Public Defender, attorney; Kathleen Gallagher, on the
briefs).
Wesley Hanna, Deputy Attorney General, argued the
cause for respondent (Matthew J. Platkin, Attorney
General, attorney; Janet Greenberg Cohen, Assistant
Attorney General, of counsel; Wesley Hanna, on the
brief).
Todd Wilson, Designated Counsel, argued the cause for
minors (Jennifer Nicole Sellitti, Public Defender, Law
Guardian, attorney; Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Todd Wilson, on the
brief).
PER CURIAM
In these consolidated appeals arising from a joint trial record, defendants
T.M. and S.M., the biological parents of minors Juliet, Seth, and Brady, 1
challenge the family court's May 10, 2023 decision terminating their parental
rights to each of their children.
1
For purposes of this opinion, we use fictitious names to protect the identit ies
of the minors and refer to defendants by their initials. See R. 1:38-3(d)(12).
The children range in ages with Juliet born in 2008, Seth born in 2015, and
Brady born in 2017.
A-2926-22
2
The termination decision followed from a nine-day trial, with testimony
from multiple witnesses including two experts, the New Jersey Division of Child
Protection and Permanency (Division) caseworker, and both T.M., the children's
mother, and S.M., their father. Defendants contend the record did not support
the court's decision, which T.M. further claims improperly relied on
inadmissible hearsay.
After review of the record and the court's seventy-four-page written
decision, we discern no abuse of discretion in the court's determination that the
termination of defendants' parental rights was in the best interests of each child.
The trial court ordered termination after a thorough evaluation of the record
under the four requirements of the best interests test, N.J.S.A. 30:4C-15.1(a).
We are similarly satisfied that the decision was not grounded in impermissible
hearsay, but instead rooted in properly admitted witness testimony and Division
records, carefully evaluated under applicable law. We affirm.
I.
The following provides a condensed chronology of the Division's
involvement and relevant court proceedings. In early December 2020, Juliet and
Seth twice reported significant abuse by both defendants, specifically claiming
physical abuse by both T.M. and S.M. and sexual abuse of Seth and Brady by
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S.M. Seth disclosed that S.M. put Seth's head in the toilet and his "finger in his
rectum," among other allegations. Juliet corroborated Seth's claims and
described S.M. doing the same to Brady and biting both boys' genitals. Both
Seth and Juliet expressed fear of defendants.
S.M. denied the sexual abuse allegations, and both T.M. and S.M. denied
physically abusing the children, although they each admitted to physically
disciplining their children who they characterized as difficult to control. T.M.
admitted to striking Juliet and Seth in the incident most recently reported by the
children. S.M. admitted to spanking the children and "pinching their cheeks."
Defendants each spoke harshly about Juliet, casting her as dishonest and
influenced by maternal relatives. Defendants insisted the children were coached
by relatives and fabricated the allegations.
Law enforcement investigated, but no charges were filed. The Division
simultaneously investigated and ordered an evaluation of the children, entering
into a safety protection plan with the family on December 23, 2020, which
required the children to remain temporarily with their maternal grandmother. 2
2
The Division had previously investigated complaints of neglect against
defendants in 2018 and 2019, first about unsanitary conditions in the home and
second about the children being left home unattended, but twice closed out
involvement.
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4
However, the Division reported that defendants impeded the investigation and
failed to meaningfully cooperate with the requested evaluations and offered
services.
In January 2021, the trial court granted the Division's application for care
and supervision of the children, ordering in pertinent part: (1) that defendants
have only supervised visitation with the children, but leaving Juliet discretion
over whether to visit her parents;3 (2) psychological evaluations of both
defendants; (3) exploration by the Division of alternative placements for the
children; and (4) transportation by the Division for evaluations and services.
In early interviews and evaluations, the children recounted claims of
abuse. Juliet described long-term physical and psychological abuse by her
parents, starting with her and then turning to her brothers. Defendants
repeatedly claimed the children were influenced by family members, and the
Division conversely claimed defendants pressured the children to recant. Seth
explained T.M. told him to say that he has a "good family life" and everything
was "joyful," but nonetheless he repeated his accounts of both physical and
sexual abuse in a clinical evaluation. The children's claims, found in significant
3
The court did not initially order that T.M. have supervised contact with the
children, but later amended the order to require supervised visitation with both
defendants.
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part to be clinically supported, resulted in referrals for treatment based on their
evaluations.
Despite the clinical assessment, the Division administratively determined
the original claims of abuse and neglect were "[n]ot [e]stablished"4 based on its
inability to confirm or refute whether, and to what extent, the children had been
"coached," but the order for care and supervision remained in place as the
Division's interaction with the family engendered new concerns about
defendants' lack of insight, blaming the children, and resistance to services,
thereby placing the children at risk.
More specifically, the Division continued to report significant difficulties
with defendants in its efforts to assist the family, alleging defendants impeded
scheduling or failed to appear at appointments and refused to undergo
psychological evaluations. Defendants expressed mistrust of the Division and
described their parenting as intended to protect their children from exposure to
unwanted influences, including television and the internet. Conflicts arose
4
The spectrum of potential Division dispositions includes "substantiated,"
"established," "not established," and "unfounded." N.J.A.C. 3A:10-7.3(c)(1) to
(4). A finding of "not established" results when the Division determines it is
unable to prove by "a preponderance of the evidence that a child is an abused or
neglected child as defined in N.J.S.A. 9:6-8.21, but evidence indicates that the
child was harmed or was placed at risk of harm." N.J.A.C. 3A:10-7.3(c)(3).
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between defendants and the children's maternal grandmother and other maternal
relatives who claimed T.M. was not adhering to the terms of the safety protection
plan. As a result, by May 2021, the children's grandmother and aunt informed
the Division they could no longer care for the children.
Immediately thereafter, the Division sought and obtained an order of
emergency removal of the children, with the court granting the Division custody
of the children and placement with the resource parents, O.A.—T.M.'s maternal
relative—and his wife, C.A., after the Division investigated and ruled out other
family placement options. The court granted defendants weekly visitation and
again ordered T.M. and S.M. to undergo psychological and parenting
evaluations.
As the matter continued, the Division determined defendants displayed no
empathy for their children or insight into their needs, berated and blamed them
and relatives for the situation, refused to meaningfully engage in therapy or
services to reunify with their children, and frequently failed to appear for
appointments and services, including court-ordered supervised therapeutic
visitation with their children. The Division nevertheless continued to pursue
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services to assist defendants and reunify the family, seeking bilingual providers
or interpreters to accommodate potential language-related issues.5
Eventually, defendants underwent the court-ordered psychological
evaluations, resulting in recommendations of counseling. However, after
defendants eventually complied and attended several sessions, the clinical
psychologist discontinued treatment, finding defendants required a different
level of care with a forensic psychologist. T.M. only briefly re-engaged with
treatment. S.M. attended only one appointment with Dr. Daniel Bromberg,
Ph.D., failing to attend all the remaining appointments.
In May 2022, the Division filed its complaint for guardianship and
pursued termination of defendants' parental rights. The Division cited mounting
concerns about defendants' unwillingness or inability to understand the basic
needs of their children, engage in services to assist them, and safely parent their
children. The Division represented the children were thriving in the care of their
resource parents who wished to adopt them but were opposed to Kinship Legal
5
We note T.M. and S.M. are predominantly Russian speakers, although they
are also fluent in English. The children also speak Russian, and Juliet speaks
fluent English. The record shows the Division sought and secured Russian-
speaking providers and interpreters at times to assist with evaluations and
services.
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Guardianship (KLG) 6 based upon defendants' treatment of them and the
extended maternal family.
Supervised visitation continued, marked by Division workers claiming
they were threatened by defendants, particularly S.M. S.M. also made curious
claims including accusing the resource parents of stealing Brady's spinal fluid
to sell on the black market and alleging the Division placed a GPS tracking
device under his car and the police were following him. Defendants both failed
to engage in court-ordered therapeutic visitation with the children.
Dr. Alison Winston, Ph.D., conducted psychological and bonding
evaluations of each defendant and diagnosed both with unspecified personality
disorders and substantial parenting deficits. Dr. Winston made independent
findings as to each defendant and found neither capable of parenting the three
children at that time or in the future, opining that further delay in permanency
6
KLG provides an "alternative, permanent placement option, beyond custody,
without rising to the level of termination of parental rights," in which the court
"transfer[s] to [a new] caregiver . . . certain parental rights, but retains the birth
parents' rights to consent to adoption, the obligation to pay child support, and
the parents' right to have some ongoing contact with the child[ren]." N.J.S.A.
3B:12A-1(b), (c). Importantly, a KLG "[c]aregiver" is one "who has a kinship
relationship with the child[ren]," "mean[ing] a family friend or a person with a
biological or legal relationship with the child[ren]." N.J.S.A. 3B:12A-2.
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would continue to harm the children. The children were each deemed to have
an insecure emotional attachment to defendants by contrast to their secure
attachments with the resource parents. Each child expressed they did not want
to live with defendants.7 The doctor opined that returning the children to T.M.
would place them at risk of "serious and enduring emotional harm," and
concluded that reunification with S.M. would similarly risk the welfare of the
children. The doctor considered the feasibility of KLG, but concluded it was
not a viable permanency option.
The trial commenced in October 2022 and concluded in January 2023.
The Division presented testimony from Division caseworker Kimberlee
Noordyk, Dr. Winston, and Dr. Bromberg. Defendants each testified on their
own behalf, but neither called additional witnesses or provided expert testimony.
The judge found the Division's lay and expert witnesses credible, in each
instance characterizing the testimony as "clear and consistent," "reasonable in
light of the documents admitted into evidence," and "inherently believable." By
contrast, the court found both defendants lacked credibility, describing their
testimony as "inconsistent," "contradictory," and "circuitous."
7
Dr. Winston testified her particular concern for Juliet after she threatened to
commit suicide if forced to return to live with defendants.
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The court admitted into evidence the Division's records to provide the
chronology of events and to place in context the Division's actions, but ruled
that it would not consider as substantive evidence hearsay diagnoses and
opinions embedded in reports and evaluations within those records. Defendants
specifically challenged the court's substantive reliance upon the clinical
evaluations done by the Audrey Hepburn Children's House (AHCH) in the
aftermath of the initial abuse disclosures clinically supporting sexual, physical,
and emotional abuse of Seth and physical abuse of Juliet. The Division agreed
it would restrict its use of those evaluations and similar reports of non-testifying
professionals to providing context only for the Division's actions and proposed
services.
After trial, in its lengthy decision, the court recounted the testimony and
evidence, made detailed credibility determinations, considered the evidence
under the applicable legal standards and relevant prongs of the guardianship
statute, and ordered termination of parental rights.
II.
These appeals followed. Both defendants assert that the trial court abused
its discretion in terminating their parental rights, alleging the Division failed to
meet its burden of establishing by clear and convincing evidence the four
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requirements for termination or demonstrate that KLG was not a feasible
permanency alternative to termination. Defendants further assert that the court
misapplied the standard for analyzing KLG. T.M. argues the court further erred
by relying on inadmissible hearsay.
The Division and Law Guardian counter that the court's determination
rested on a painstaking analysis of the trial record under the applicable law.8
Although conceding that at one point the court cited to a prior version of
N.J.S.A. 3B:12A-6 when considering KLG, they further assert that misstatement
of law was harmless error, as the court made its determinations based on its
independent finding that KLG was not an available alternative.
8
We note our receipt of correspondence from defendants' counsel on the eve of
oral argument indicating a change in Juliet's placement for a period between
January 2024 and May 2024. Counsel notified the court that it deemed the
Division's failure to provide notice of this change as violating Rule 2:6-11(d)(3),
requiring the Division to advise the court of any change in the placement status
of a child during the pendency of an appeal. Defendants asked that the Division
comply with the rule and that we allow defendants to address the issue at oral
argument, which we did. Defendants argued, without specificity, that Juliet's
temporary hospitalization amplified their concerns about Juliet's reliability and
her placement with the resource parents, but defendants did not move for remand
under Rule 4:50-1. This new information presented during oral arguments did
not affect our view of the trial court's decision.
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III.
Termination of parental rights is a matter of great constitutional
magnitude and concern. See In re Guardianship of K.H.O., 161 N.J. 337, 346
(1999). Parental rights, however, are "not absolute" and are limited "by the
State's parens patriae responsibility to protect children whose vulnerable lives
or psychological well-being may have been harmed or may be seriously
endangered by a neglectful or abusive parent." N.J. Div. of Youth & Fam. Servs.
v. F.M., 211 N.J. 420, 447 (2012). A parent's interest must, at times, yield to
the State's obligation to protect children from harm. See N.J. Div. of Youth &
Fam. Servs. v. G.M., 198 N.J. 382, 397 (2009).
The Division must meet a formidable burden to terminate parental rights.
Critically, the Division must prove, by clear and convincing evidence, the
following four requirements 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;
(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
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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.
These requirements "are not discrete and separate; they relate to and
overlap with one another to provide a comprehensive standard that identifies a
child's best interests." K.H.O., 161 N.J. at 348. "The considerations involved
in determinations of parental fitness are 'extremely fact sensitive' and require
particularized evidence that address the specific circumstances in the given
case." Ibid. (quoting In re Adoption of Child. by L.A.S., 134 N.J. 127, 139
(1993)).
"When a biological parent resists termination of his or her parental rights,
the [trial judge]'s function is to decide whether that parent has the capacity to
eliminate any harm the child may already have suffered, and whether that parent
can raise the child without inflicting any further harm." N.J. Div. of Youth &
Fam. Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006). "[T]he
cornerstone of the inquiry [under N.J.S.A. 30:4C-15.1(a)] is not whether the
biological parents are fit but whether they can cease causing their child harm."
In re Guardianship of J.C., 129 N.J. 1, 10 (1992).
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"Because of the family court's special jurisdiction and expertise in family
matters, appellate courts should accord deference to [the trial judge's]
factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). The trial judge's
factual findings "should be upheld whenever they are 'supported by adequate,
substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super.
172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of
Am., 65 N.J. 474, 484 (1974)). We will not disturb the trial court's factual
determinations unless they are "so manifestly unsupported by or inconsistent
with the competent, relevant and reasonably credible evidence as to offend the
interests of justice." Cesare, 154 N.J. at 412 (quoting Rova, 65 N.J. at 484).
IV.
Against this backdrop, we evaluate the family court's decision and
examine each statutory requirement in light of the evidence applicable to each
parent.
A.
The first prong of the best interests test requires the Division to
demonstrate that "[t]he child's safety, health, or development has been or will
continue to be endangered by the parental relationship." N.J.S.A. 30:4C-
15.1(a)(1); see K.H.O., 161 N.J. at 352. The court may consider psychological
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harm and emotional injury in the absence of physical harm. See In re
Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977). Although
emotional harm to a child cannot be detected and quantified as precisely as
physical injuries, if serious psychological harm is inflicted upon the child by
virtue of the parental relationship, the harm element of the best interests test is
satisfied. See N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 506-07
(2004).
Significantly, the Supreme Court has clarified that a parent's withdrawal
of "solicitude, nurture, and care for an extended period" is a harm that endangers
the health of a child. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
A judge "need not wait . . . until a child is actually irreparably impaired by
parental inattention or neglect." Id. at 383. Further, a finding of harm is not
dependent on a predicate finding of abuse or neglect. See N.J. Div. of Youth &
Fam. Servs v. A.P., 408 N.J. Super. 252, 259 (App. Div. 2009). While "a
particularly egregious single harm can trigger the standard, the focus is on the
effect of harms arising from the parent-child relationship over time." K.H.O.,
161 N.J. at 348.
"[T]he relevant inquiry focuses on the cumulative effect, over time, of
harms arising from the home life provided by the parent." N.J. Div. of Youth &
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Fam. Servs. v. M.M., 189 N.J. 261, 289 (2007). A parent's refusal to participate
in treatment for substance abuse or mental health concerns factors into the harm
assessment when a child is endangered by the parent's condition. See N.J. Div
of Youth & Fam. Servs. v. H.R., 431 N.J. Super. 212, 222-23 (App. Div. 2013)
("When the condition or behavior of a parent causes a risk of harm, such as
impermanence of the child's home and living conditions, and the parent is
unwilling or incapable of obtaining appropriate treatment for that condition, the
first subpart of the statute has been proven."); see also N.J. Div. of Child Prot.
& Permanency v. D.H., 469 N.J. Super. 107, 133-35 (2021); certif. denied, 250
N.J. 395 (2022) (affirming a finding of harm based on "the mother's mental
health problems, the parents' repeated failures to complete certain services
reasonably offered by the Division, their inconsistent attendance at
visitations, . . . their difficulties with housing despite financial assistance," and
admission of marijuana use).
Defendants contend the trial court erred in finding the children suffered
and would continue to suffer harm because of their conduct. They argue that
the trial court presumed harm when there were no physical manifestations of
abuse or administrative findings establishing abuse and neglect and insufficient
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evidence of any mental health issues or housing instability. They allege that the
court failed to identify specific references to any harm or injury. We disagree.
In considering T.M., the court found Dr. Winston's uncontroverted
testimony was credible and accepted the doctor's opinion that T.M. lacked
empathy for or insight into the needs of her children and "would endanger the
safety, health, and development of [her] children" if the children were under her
care. The court relied upon Dr. Winston's testimony noting T.M. blamed the
children for the "chaotic family dynamic," "physical[ly] abuse[d] . . . the
children,"9 "fail[ed] to properly treat [or acknowledge her] mental health issues,"
and refused to allow confirmation of stable housing. The court cited Dr.
Winston's conclusion that T.M. showed "no motivation for change" and her
"parental deficiencies" placed the children at risk of harm if returned to her care.
The court also noted Dr. Winston's diagnostic impression of T.M.
indicating "an unspecified personality disorder" and her recommendation that
"[T.M.] continue to engage in therapy, although . . . when a[n individual] doesn't
acknowledge that there's anything that needs to change . . . then they're not
9
We recognize that there were no "substantiated" or "established"
administrative findings of physical abuse. The record nevertheless contained
T.M.'s admitting to harshly disciplining and slapping the children, but blaming
the children for her behavior, speaking "very negatively about [Juliet]
throughout much of [T.M.'s] evaluation" with Dr. Winston.
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going to open up in therapy and really do the work needed to make that change."
Dr. Winston opined T.M. "[would] not be able to parent the children" and "[her]
opinion [was un]likely to change in the foreseeable future." Thus, the doctor
concluded that T.M. "[cannot] provide a safe and stable home for the children"
due to a risk of "serious and enduring emotional harm." The court properly
relied on this expert testimony in finding T.M. posed a serious risk of harm to
the children if they were returned to their care.
The court made similar findings regarding S.M., relying on Dr. Winston's
opinions and concluding S.M. demonstrated "a lack of empathy" and
"accountability and ha[d] been cruel towards the children," placing blame on
Juliet with no insight into the harm this caused the children. The court found
S.M., also diagnosed by Dr. Winston with an unspecified personality disorder,
did not recognize his own mental health challenges or parenting issues and,
without meaningful insight, would continue to place the children at risk of harm.
Therefore, the court found S.M.'s "parental deficiencies" would place the
children at risk of harm if returned to him. The testimony of Dr. Bromberg and
the caseworker supported the court's conclusion that S.M. "never completed any
of the recommended mental health treatment programs."
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The court tethered its findings as to both parents to "evidence of harm to
these children due to the interaction between the parents and the children"
derived in part from the caseworker's credible account of the Division's
experience with the family and expert opinion. The court found the actual harm
to the children and future risk thereof emanated from each parent's detachment
from the children and inability to understand and provide for their needs.
Credible evidence supported the court's finding that both parents failed to
meaningfully engage in Division efforts to rectify their lack of insight, instead
continuing to blame and disparage their children, while lacking any empathy or
appreciation for the impact of their conduct on their children, placing the
children at continued risk of harm.
The court also noted its concerns over the lack of a "realistic housing plan
for the children." The Division provided a referral for housing services during
the pendency of its involvement after learning the family suffered from housing
instability due to financial circumstances. However, defendants decided instead
to move to a location described by T.M. as within a Russian Orthodox
"monastery—meaning convent"—in New York. The court noted the
caseworker's testimony that defendants did not permit the Division to verify
defendants' housing, and the court found defendants "failed to permit the
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Division to see and inspect the current housing." Defendants challenge this
finding as unsupported. We are unpersuaded that the court placed undue weight
on its housing concerns, which were supported by the testimony from the
caseworker. The court found defendants' testimony and description of the
housing was not credible and gave reasons for those findings. Finding the
caseworker's testimony credible, the court properly considered the housing issue
as only one piece of the overall mosaic of potential harm in determining "the
children's health and development would be endangered by reunification with
these parents."
We briefly address and reject T.M.'s claim that the court improperly relied
on impermissible hearsay, particularly the AHCH team's evaluation finding the
children's abuse claims were clinically supported. We "review evidentiary
determinations by a trial court, including hearsay determinations, for abuse of
discretion." N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 366
(2017).
Here, the court properly admitted the Division records under Rule 5:12-
4(d) but limited its use of embedded hearsay regarding professional opinions
and reports to demonstrate the basis for the Division's recommendations and
services. See R. 5:12-4(d) (allowing the Division "to submit into evidence,
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pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or
professional consultants"); see also N.J. Div. of Child Prot. & Permanency v.
N.T., 445 N.J. Super. 478, 487 (App. Div. 2016) (recognizing "[e]xpert
diagnoses and opinions in a Division report are inadmissible hearsay, unless the
trial court specifically finds they are trustworthy under the criteria in N.J.R.E.
808, including that they are not too complex for admission without the expert
testifying subject to cross-examination").
The record reveals the court adhered to its ruling and based its decision
on identified testimony and evidence in the record. Significantly, the court
expressly acknowledged that the Division never made an administrative finding
of "abuse and neglect," deeming that of "no consequence." It recognized
correctly that "[a] finding of abuse or neglect is not required to satisfy [the first]
prong."
The court did not rest its harm determination on the initial allegations;
instead, it found clear and convincing evidence "the children have been harmed
as a result of the parental relationship with T.M. and S.M." Specifically, the
court found defendants' "mental health challenges, lack of housing stability, and
lack of engagement with recommended services [were] clear and supported by
the record." Moreover, any arguable improper reference by the court to
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embedded hearsay is harmless as we are satisfied the court rested its findings on
properly admitted testimony and evidence. See N.J. Div. of Child Prot. &
Permanency v. D.C.A., 474 N.J. Super. 11, 30 (App. Div. 2022) (concluding
trial court's "reliance upon embedded hearsay and other excludable evidence"
did not "prominently undergird[]" its decision, when the court instead made
"specific findings . . . exclusively concerned with defendant's parental fitness").
Thus, we are satisfied the court relied on credible evidence in the record
and found defendants each unable to safely care for the children now or in the
foreseeable future. Accordingly, we discern no abuse of discretion in the trial
court's finding the children's "safety, health, or development has been or will
continue to be endangered by the parental relationship[s]." N.J.S.A. 30:4C-
15.1(a)(1).
B.
We similarly conclude the court's finding of prong two was sufficiently
anchored in the record as to both parents. "The second prong of the statutory
standard relates to parental unfitness." K.H.O., 161 N.J. at 352. The Court has
clarified the necessary proof to establish this factor:
The State must show not only that the child's
health and development have been and continue to be
endangered, but also that the harm is likely to continue
because the parent is unable or unwilling to overcome
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or remove the harm. That inquiry 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.
Alternatively, under this second criterion, it may be
shown that 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.
[Id. at 348-49 (citations omitted).]
Courts must assess: (1) whether parents have and are able to sufficiently
ameliorate the risk of harm; and (2) if unremedied, whether the delay needed to
address and lessen that risk will cause additional harm to the children. See id.
at 348. This requirement closely interrelates with the first requirement of the
best interests test. See D.M.H., 161 N.J. at 379 ("While the second prong more
directly focuses on conduct that equates with parental unfitness, the two
components of the harm requirement, N.J.S.A. 30:4C-15.1(a)(1) and (2)[,] are
related to one another, and evidence that supports one informs and may support
the other . . . .").
The court found T.M. unwilling or unable to eliminate the risk of harm
she posed to her children. The record demonstrates numerous instances of
T.M.'s failing to attend or impeding the scheduling of evaluations and services,
including court-ordered therapeutic visitation with the children. The court relied
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on that evidence in reaching its decision.
T.M. claims the court ignored her "many successful family visits" and
highlights her completing several sessions with a clinical psychologist in late
2021 before that provider referred T.M. for forensic psychological evaluation
and treatment. Here, the court did not overlook, but instead recognized, that
T.M. "did engage in some services." The court, however, noted Dr. Winston's
opinion that both defendants "failed to engage in the recommended programs in
any meaningful way." The court also incorporated into its decision Dr.
Winston's view that neither defendant accepted responsibility for their "failure
to properly care for the children" and defendants appeared "unable to put
themselves in a position to correct the issues that [they] presently have" now or
in the foreseeable future.
The court similarly referenced instances in which S.M. failed to follow
through with services, noting Dr. Bromberg's testimony that S.M. missed six of
his seven scheduled psychotherapy appointments. The court noted S.M.'s non-
compliance with court-ordered services and therapeutic supervised visitation
without any "credible and reasonable explanation."
We find the record supported the court's findings that defendants were
unwilling or unable to "cure[] and overcome the initial harm that endangered the
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health, safety, or welfare of the child[ren]." K.H.O., 161 N.J. at 348. The court
found both defendants made a "very limited attempt at services" and that they
caused and would continue to cause the "delay of permanent placement" of the
children. The court emphasized defendants' failure to recognize their mental
health issues as evidenced by their lack of meaningful engagement rendered
them unwilling or unable to rectify the conditions placing their children at
harm.10 The court expressed concern that defendants blamed their children
rather than working to gain insight into their own parenting deficits that placed
their children at risk of harm.
The court further recognized Dr. Winston's emphasis on the importance
of permanency for the children. The court cited Juliet's threat to harm herself if
returned to her parents, as well as both parents' limited contact with their
children, despite court orders for services designed to remediate the harm and
reunify the family. The record reflected many instances in which defendants
failed, refused, or only sporadically cooperated with services designed to rectify
10
We recognize defendants argue they do not suffer from mental health
conditions warranting concerns for their parenting. However, Dr. Winston's
unrefuted opinion reflected that both parents suffer from untreated personality
disorders that impair their ability to properly care for and empathize with their
children. The court accepted Dr. Winston's testimony as credible, and we defer
to the court's determination.
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the critical parenting issues which supported the court's finding that the
indefinite delay of permanent placement would add to the harm. The court
therefore reasonably anticipated significant delay to potential reunification.
Thus, we perceive no error in the court's finding further harm to the children
would result from an indefinite lack of permanency.
We likewise find unconvincing defendants' claim that the trial court erred
in referencing the resource parents' "secure" relationship with the children as a
basis of comparison to the children's weaker, "unsecure" relationship with
defendants. We do not agree that the court placed improper weight on the
relative bond with the resource parents in determining defendants' ability to care
for their children as its specific findings regarding defendants belie that claim.
See N.J. Div. of Child Prot. & Permanency v. D.C.A., 256 N.J. 4, 26-27 (2023)
(clarifying that prong two as recently amended "ensure[s] that parental fitness—
not the child's bond with resource parents—is the core inquiry when a judge
considers the best interests standard's second prong in a termination of parental
rights case"). The court found and the record supported the court's finding
"significant risk" posed by defendants' "erratic and unstable lifestyle." We are
satisfied that the court's decision regarding prong two rested on defendants'
parental unfitness and their respective failure to meaningfully engage in services
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to remediate their deficits, independent of the children's relationship with the
resource parents.
C.
As to prong three, the judge found credible the caseworker's testimony
regarding the Division's reasonable efforts to provide services targeted to
ameliorate the risk defendants posed to their children and both defendants'
failure to engage. The court accepted Noordyk's testimony highlighting the
Division's offerings: "psychological evaluations, psychiatric evaluations,
referral to numerous mental health treatment services, and facilitated visitation
with the children." The caseworker also confirmed the Division offered
transportation to the children and defendants. Despite defendants' reluctance to
comply, Noordyk described the Division's continued willingness to work with
defendants throughout the Division's involvement.
The court itemized in detail those efforts and emphasized that the Division
"prompted" and "encouraged" visitation with the children. The record reflected
Division attempts to provide Russian-speaking service providers and
interpreting services. There was ample evidence in the record supporting the
court's conclusion that the Division exhausted reasonable efforts to rectify the
issues as to each defendant and reunify the family, but defendants each
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demonstrated an enduring unwillingness or inability to engage in the offered
services.
The court rejected defendants' claims that they cooperated with the
Division's efforts or that the Division failed to offer them necessary services that
would have allowed them to comply. We defer to the court's credibility
assessments, finding defendants' assertions unsupported by the record. Thus,
we see no basis to disturb the court's finding that the Division made the requisite
reasonable efforts to provide defendants with numerous and ongoing services to
ameliorate their mental health issues, rectify their deficient parenting skills, and
repair their unstable relationships with their children. See F.M., 211 N.J. at 452-
53.
Sufficient evidence also supported the court's finding that the Division
explored alternatives to termination of defendants' parental rights and found
none existed in this case. The court found that while the Division sought to
provide services to the family with the goal of reunification, it simultaneously
explored and secured placement with relatives in furtherance of the goal to
"obviate the need for termination of parental rights and [ultimately] adoption."
N.J. Div. of Youth and Fam. Servs. v. L.J.D., 428 N.J. Super. 451, 489 (App.
Div. 2012).
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Here, the court determined KLG was not an available alternative as the
Division informed the resource parents and the children about the differences
between KLG and adoption and the resource parents unequivocally rejected
KLG in favor of adoption. The court also considered the children's desire for
adoption and their thriving in the care of the resource parents. The court
accepted Noordyk's testimony that "the Division explored several family
placement options and thereafter ruled out [other] family members," making the
resource parents the only viable family alternative. Dr. Winston also opined that
KLG would be harmful to the children as "the . . . parents harbor a great deal of
resentment and hostility towards the resource parents," and KLG "wouldn't
provide for the emotional security of the children." Therefore, there was
substantial credible evidence in the record for the court to find KLG was not a
feasible alternative.
Defendants correctly highlight the court's incorrect reference to the prior
version of the now-amended KLG statute, N.J.S.A. 3B:12A-6, that no longer
requires a predicate finding that "adoption [wa]s neither feasible nor likely" as
the KLG statutory scheme no longer reflects a "preference for adoption." See
L. 2021, c. 154. We are not persuaded that the court's misstatement of law
requires reversal as the court's finding that KLG was not feasible did not rest on
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a presumption favoring adoption, but instead upon a determination, supported
by the record, that despite the Division's best efforts, KLG was not an available
option. Although the court recognized the children were well cared-for by and
bonded with the resource parents who wished to adopt the children, we find the
erroneous reference to the former statutory standard was harmless and incapable
of producing an unjust result. See R. 2:10-2; see also D.C.A., 474 N.J. Super.
at 30. The court's determination was not based on the former statutory
preference for adoption over KLG.
D.
Finally, the court's finding of factor four—that termination of parental
rights will not do more harm than good—is supported as to each defendant.
"[T]he fourth prong 'serves as a fail-safe against termination even where the
remaining standards have been met.'" N.J. Div. of Youth & Fam. Servs. v. R.G.,
217 N.J. 527, 559 (2014) (quoting N.J. Div of Youth & Fam. Servs. v. E.P., 196
N.J. 88, 108 (2008)). "The question is . . . 'not whether a biological mother or
father is a worthy parent, but whether a child's interest will best be served by
completely terminating the child's relationship with that parent.'" Ibid. (quoting
E.P., 196 N.J. at 108). "[A] child's need for permanency is an extremely
important consideration pursuant to this prong." Ibid. This analysis "cannot
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require a showing that no harm will befall the child as a result of the severing of
biological ties." K.H.O., 161 N.J. at 355.
Instead, "[t]he question . . . is whether, after considering and balancing
the two relationships, the child[ren] will suffer a greater harm from the
termination of ties with [their] natural parents than from the permanent
disruption of [their] relationship with [the] foster parents." Ibid. This decision
"requires expert inquiry specifically directed to the strength of each
relationship." Ibid. (quoting J.C., 129 N.J. at 25). The Court has "long
considered a child's relationship with the resource family . . . when [it] applie[s]
the fourth prong." D.C.A., 256 N.J. at 23.
Importantly, children should not "languish indefinitely" in a resource
placement while a parent attempts to correct parenting difficulties. N.J. Div. of
Youth & Fam. Servs. v. S.F., 392 N.J. Super. 201, 209 (App. Div. 2007).
Termination is necessary under certain circumstances to allow children to have
a secure and permanent home. See N.J. Div. of Youth & Fam. Servs. v. B.G.S.,
291 N.J. Super. 582, 595 (App. Div. 1996).
Here, the court relied on Dr. Winston's unrefuted expert testimony to reach
its conclusions. See K.H.O., 161 N.J. at 363. As to T.M., the court cited to the
record and Dr. Winston's "unrebutted credible opinion" that "to reunify these
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children with T.M. . . . would cause the children serious and enduring emotional
harm."
Similarly, as to S.M., the court relied on the record and the expert
testimony to conclude that "termination of . . . parental rights will not do more
harm than good," as S.M.'s lack of progress "indicates that he will be unable to
reduce his level of risk to the children to a level that he will be able to safely
parent the children . . . within the foreseeable future or within a time frame that
would meet the children's need for permanency."
The court further cited Noordyk's "credible" testimony revealing the
"excellent care the children are receiving in the resource home" and Dr.
Winston's testimony that removing the children from the "stable and nurturing"
resource parents "would cause the children serious and enduring emotional
harm." The court cited the record and found the children were bonded with the
resource parents and negatively impacted by the lack of permanency and the
unstable relationship with defendants. Thus, the court's finding that the children
would suffer greater harm if removed from their resource parents than if
defendants' rights, respectively, were terminated was not an abuse of discretion.
Viewing the court's thoughtful consideration of the interrelated four
statutory factors regarding the best interests of the children, we conclude that
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the court's decision to terminate defendants' parental rights was supported by
clear and convincing evidence.
To the extent that we have not addressed all of defendants' arguments, we
conclude that they lack sufficient merit to warrant discussion in this written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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