DCPP VS. N.L.W., IN THE MATTER OF THE GUARDIANSHIP OF N.M.W. (FG-04-0143-20, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-0657-20
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
N.L.W.,
Defendant-Appellant,
________________________
IN THE MATTER OF THE
GUARDIANSHIP OF
N.M.W., a minor.
________________________
Submitted September 13, 2021 – Decided September 22, 2021
Before Judges Fasciale and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FG-04-0143-20.
Joseph E. Krakora, Public Defender, attorney for
appellant (Deric Wu, Assistant Deputy Public
Defender, of counsel and on the brief).
Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Donna Arons, Assistant Attorney General,
of counsel; Wesley Hanna, Deputy Attorney General,
on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Margo Hirsch, Designated Counsel,
on the brief).
PER CURIAM
Defendant N.L.W. (the mother) appeals from an October 15, 2020 order
terminating her parental rights to her adopted daughter N.M.W. (the child), born
in 2010, and awarding guardianship to the Division of Child Protection and
Permanency (the Division). The Division removed the child—due to domestic
violence and parental unfitness—when she was seven years old and placed her
with the maternal uncle and paramour. Judge Francine I. Axelrad presided over
the trial, entered the judgment, and rendered a thoughtful and comprehensive
decision.
On appeal, the mother argues:
[POINT I]
[THE DIVISION] DID NOT PROVIDE SUFFICIENT
EVIDENCE TO PROVE CLEARLY AND
CONVINCINGLY THAT [THE CHILD] WAS
HARMED AS A RESULT OF WITNESSING
DOMESTIC VIOLENCE.
[POINT II]
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[THE DIVISION'S] ENACTMENT OF SUBSTANCE
ABUSE SERVICES DID NOT ADDRESS AN
ONGOING RISK OF HARM.
We disagree and affirm substantially for the reasons given by the judge in her
oral opinion. We add these remarks.
I.
Parents have a constitutionally protected right to the care, custody, and
control of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re
Guardianship of K.H.O., 161 N.J. 337, 346 (1999). That right is not absolute.
N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014); N.J. Div.
of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, a
parent's interest must yield to the State's obligation to protect children from
harm. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009);
In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The Legislature created a test
to determine when it is in the child's best interests to terminate parental rights
to effectuate these concerns. To terminate parental rights, N.J.S.A. 30:4C-
15.1(a) requires the Division to prove four prongs by clear and convincing
evidence:
(1) The child's safety, health, or development has been
or will continue to be endangered by the parental
relationship;
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(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 [her] resource family parents would cause
serious and enduring emotional or psychological harm
to the child;1
(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 [judge] has considered
alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more
harm than good.
See also A.W., 103 N.J. at 604-11. Although the mother only focused on prongs
one and three, the four prongs of the test are "not discrete and separate" but
"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 Children by L.A.S., 134 N.J. 127,
1
We are aware that on July 2, 2021, the Legislature enacted L. 2021 c. 154,
deleting the last sentence of N.J.S.A. 30:4C-15.1(a)(2). This amendment does
not impact our judgment because the mother's arguments relate only to the first
and third prongs.
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139 (1993)). Adhering to these standards, the judge concluded—relying on the
credible evidence that the Division produced—that it was in the child's best
interests to terminate the parental rights.
II.
As we pointed out, the mother focuses on prong one, and to some extent,
prong three. Regarding prong one, the mother argues the Division failed to meet
its evidentiary burden. On prong three, however, the mother does not contend
the Division produced insufficient evidence, but rather, the Division offered
unnecessary substance abuse services, which did not "provide any proof of risk"
to the child. We disagree with the mother on both arguments.
A.
The first prong of the best interests test requires the Division demonstrate
that the "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 concern is not only with actual harm to the child
but also the risk of harm. In re Guardianship of D.M.H., 161 N.J. 365, 383
(1999). The focus is not on a single or isolated event, but rather on the effect
"of harms arising from the parent-child relationship over time on the child's
health and development." K.H.O., 161 N.J. at 348. However, a judge does not
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need to wait "until a child is actually irreparably impaired by parental inattention
or neglect" to find child endangerment. D.M.H., 161 N.J. at 383 (citing A.W.,
103 N.J. at 616 n.14). The Court has explained that a parent's withdrawal of
nurture and care for an extended period is a harm that endangers the health of a
child. Id. at 379. When children "languish in foster care" without a permanent
home, their parents' "failure to provide a permanent home" may itself constitute
harm. Id. at 383.
Here, the judge found that the parental relationship harmed the child by
subjecting her to witness domestic violence in the home on multiple occasions,
which included aggression by the mother, and that those experiences have had a
significant impact on the child. In addition to the harm inflicted on the child by
witnessing domestic violence, the judge found the mother harmed her by
isolating her from other family members, such as her grandfather. The judge
explained that during visits the mother "continued to act erratic, abusive to [the
child], to taunt her, to put pressure on her about where she wanted to live, [and]
question[ed] her loyalties, continuing to cause harm." The judge found that the
mother's failure to visit the child for months "seriously affected" her, and that it
was "like [the mother] was [emotionally] torturing her." The judge concluded
that the mother's withholding of affection "clearly" harmed the child. The judge
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also stated that the record is replete with examples of the mother's unwillingness
to submit to urine samples, including her refusal to be drug tested in court, which
led the judge to "absolutely" draw a negative inference about a substance
problem. The judge detailed multiple other examples of how the mother harmed
the child.
B.
The third prong requires evidence that "[t]he [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
[judge] has considered alternatives to termination of parental rights." N.J.S.A.
30:4C-15.1(a)(3). "Reasonable efforts may include consultation with the parent,
developing a plan for reunification, providing services essential to the
realization of the reunification plan, informing the family of the child's progress,
and facilitating visitation." N.J. Div. of Youth & Family Servs. v. M.M., 189
N.J. 261, 281 (2007) (internal quotation marks and citations omitted). Once
again, the mother's argument is not that the Division failed to make reasonable
efforts, but that its "enactment of substance abuse services did not address an
ongoing risk of harm to [the child]." In other words, that substance abuse
services purportedly exceeded the mother's needs.
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The mother tested positive for methamphetamines at the outset of the
litigation. The Division scheduled substance abuse evaluations and expected
the mother to follow any recommendations. The initial evaluation
recommended outpatient treatment. The record demonstrates support for the
scheduled substance abuse services: close relatives and her long-time boyfriend
believed she abused drugs; police were involved because she was hallucinating;
she stopped communicating with the Division due to illnesses; and during
visitation, she repeatedly vomited and was too lethargic to engage with the child.
The judge ordered updated substance evaluations—especially because the
assessment from Genesis was incomplete. Although the judge gave that order,
the mother did not comply.2
C.
Our review of a family judge's factual findings is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). "It is not our place to second-guess or
substitute our judgment for that of the family court, provided that the record
contains substantial and credible evidence to support the decision to terminate
2
In addition to failing to participate with substance abuse services, the mother
was unwilling to submit to individual therapy and complete services related to
domestic violence. Also, her therapeutic visitation with the child was terminated
after she refused to meaningfully engage in the therapeutic component and
repeatedly missed visitation.
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parental rights." N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420,
448-49 (2012). "We invest the family court with broad discretion because of its
specialized knowledge and experience in matters involving parental
relationships and the best interests of children." Id. at 427. Although our scope
of review is expanded when the focus is on "'the trial judge's evaluation of the
underlying facts and the implications to be drawn therefrom,' . . . even in those
circumstances we will accord deference unless the trial court's findings 'went so
wide of the mark that a mistake must have been made.'" M.M., 189 N.J. at 279(first quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div.
1993); then quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super.
65, 69 (App. Div. 1989)).
Here, the record contains substantial and credible evidence to support the
decision to terminate parental rights. The judge found the mother's testimony
was "rambling, incoherent, often non sequiturs, unfocused, nonresponsive, [and]
extremely inconsistent." The judge concluded that the mother was at times
"making it up as she was going along." And she found other parts of the mother's
testimony "incredulous and preposterous." We have no reason to second guess
those—or any other—findings.
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To the extent we have not addressed any other argument, we conclude that
they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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