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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0751-16T3 A-0753-16T3
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
F.C. and W.S.,
Defendants-Appellants.
________________________________
IN THE MATTER OF THE GUARDIANSHIP OF F.S. and W.A.S.,
Minors. ________________________________
Submitted September 26, 2017 - Decided October 20, 2017
Before Judges Leone and Mawla.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-0121-16.
Joseph E. Krakora, Public Defender, attorney for appellant F.C. (Stephania Saienni-Albert, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant W.S. (Stephen P. Dempsey, Designated Counsel, on the briefs).
Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Elisabeth E. Juterbock, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Margo E.K. Hirsch, Designated Counsel, on the brief).
PER CURIAM
In these consolidated matters, defendants F.C and W.S. appeal
from a September 30, 2016 judgment terminating parental rights to
their minor children, W.A.S. (Walter) and F.S. (Fiona).1
Defendants contend plaintiff the New Jersey Division of Child
Protection and Permanency (Division) failed to prove all four
prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.
Having considered the parties' arguments in light of the record
and applicable legal standards, we affirm.
I.
The following facts are taken from the record. F.C. and W.S.
are the biological mother and father of Walter and Fiona who are
presently seven and five years old. Both parents are unemployed
and receive disability benefits. F.C. has a low I.Q., and W.S.
1 We use pseudonyms to protect the children's privacy.
2 A-0751-16T3 is partially paralyzed as a result of a gunshot wound. Both
parents struggle with substance abuse, and neither has had stable
housing since 2012. The children have several cognitive and
physiological health conditions requiring medical attention.
Walter in particular is diagnosed with and medicated for attention
deficit hyperactivity disorder and oppositional defiant disorder.
He was classified as pre-K disabled.
On March 20, 2012, the Division received its first referral
alleging child neglect and drug use by F.C and W.S. Though the
allegation of neglect was unfounded, F.C. and W.S. admitted to
smoking marijuana and agreed to an evaluation with a certified
alcohol and drug counselor (CADC). The evaluation results showed
F.C. tested positive for marijuana, and W.S. positive for PCP,
marijuana, and barbiturates. Based on the CADC assessment, the
Division implemented a safety protection plan and services on
April 18, 2012. The safety plan required F.C. to attend a
substance abuse treatment program, and W.S. to have only supervised
contact with the children until he completed a drug counseling
program.
In the substance abuse treatment program, F.C. tested
positive for marijuana on numerous occasions, and as a result was
discharged from the program. After her discharge, F.C. tested
positive for marijuana on at least twelve separate occasions. W.S.
3 A-0751-16T3 also demonstrated little progress as he tested positive for
marijuana and PCP.
In June 2012, the Division placed home health aides from
Visiting Homemaker Services of Hudson County in F.C.'s apartment
to provide in-home support for the family. However, the reports
from the service show F.C. and W.S. failed to cooperate with the
service or respond to the children's needs, including ensuring
basic hygiene and a clean home. Homemaker Services continued to
assist the family through April 2013, nearly a year of service.
On June 29, 2012, W.S. began an outpatient drug program at
Health Path Consulting Services. However, he was discharged less
than one month later for non-compliance and continued drug use.
In August 2012, F.C. began inpatient treatment in the Mommy-
and-Me program at Straight and Narrow. There, she exhibited
parenting and behavioral issues during instruction on parenting
skills, group therapy, and anger management classes. F.C.
completed treatment in February 2013, and was referred to Eva's
Village and Sunrise House for transitional housing, but refused
to participate in either program. F.C. later admitted to smoking
marijuana immediately following completion of the Straight and
Narrow program.
W.S. began a second outpatient drug treatment at C-Line
Community Outreach in September 2012. He immediately tested
4 A-0751-16T3 positive for marijuana, PCP, and alcohol. He continued to test
positive for PCP numerous times in the ensuing five months, and
then ceased attending the program altogether.
On March 5, 2013, the Division filed a complaint for care and
supervision of Walter and Fiona. The same day, F.C. returned to
Project Second Chance for outpatient sessions. She continued to
test positive for marijuana a week later. She was discharged
later that month for non-compliance.
In April 2013, F.C. and the children were admitted into
Sunrise House Halfway Home, an inpatient program. There, staff
reported numerous instances of non-compliance and inappropriate
behavior by F.C.
In May 2013, W.S. began counseling at New Pathways for drug
abuse. He tested positive for PCP twice in June 2013, and was
discharged for non-compliance.
In July 2013, F.C. was evaluated by the Center for Evaluation
and Counseling. F.C. reported a prior diagnosis of depression for
which she had been prescribed medication. She asserted that she
no longer took the medicine due to a lack of insurance. As a
result, the Division arranged for a psychological assessment by
Dr. Christopher Friedrich in September 2013. Dr. Friedrich
concluded F.C. was a high-risk parent for child neglect. This was
5 A-0751-16T3 exacerbated by F.C.'s unwillingness to consider psychotropic
medication to address her mental health.
On September 8, 2013, F.C was transferred to the Mommy-and-
Me program at Eva's Village. F.C.'s progress at Eva's Village was
poor. F.C. had at least ten instances where she failed to
adequately supervise the children. F.C. bullied fellow residents,
and refused to engage in outpatient treatment or submit to urine
screens. In December 2013, the Division received a discharge
summary from Eva's Village stating F.C. would be discharged
effective January 3, 2014.
As a result of both parents' lack of progress and resistance
to the services provided, the Division filed for custody of the
children, which the trial court granted on December 13, 2013. The
children were transferred to a resource home where they remained
until March 13, 2014, when they were transferred to the relative
resource home of a paternal cousin K.M. They lived with K.M.
through the entry of judgment.
After the children were removed, F.C. and W.S. continued not
to comply. F.C. agreed to enroll in an intensive outpatient
program, but failed to do so, claiming she did not need treatment.
The Division scheduled three CADC assessments in April 2014 for
F.C., but she did not attend. When F.C. did attend the fourth
assessment in May 2014, she disclosed her continued marijuana use.
6 A-0751-16T3 The Division referred F.C. to New Pathways and she successfully
engaged in treatment, but her progress was short-lived. F.C. made
little progress in anger management, and by September 2014 she
began testing positive for marijuana and missing therapy sessions.
She continued to test positive for marijuana in 2015, and was
discharged from the Integrity House rehabilitation program for
exhibiting continual anger and non-compliance.
F.C.'s visitations with the children also demonstrated her
poor compliance and progress. After the removal, F.C. was afforded
four hours per week of supervised visitation. The Division's
records demonstrate F.C. arrived late to visitation, and her
interactions with the children were inappropriate. F.C. was
physically aggressive with the children and reacted negatively to
their attempts to gain her attention. On other occasions, F.C.
ignored the children's misbehavior choosing instead to play with
her phone.
W.S. also demonstrated no progress after the children's
removal. In December 2013, seventeen days after the children's
removal, and again in January 2014 he tested positive for PCP.
W.S.'s PCP use continued throughout 2014 and 2015. He failed to
comply with court ordered evaluations and substance abuse
treatment, and was discharged from several programs for non-
compliance.
7 A-0751-16T3 In May 2015, W.S. was incarcerated for assaulting F.C. with
a knife and unlawful possession of a weapon. He was released in
August 2015, but failed to notify the Division. Although the
Division continued to offer W.S. substance abuse services, he
failed to attend any CADC evaluations from November 2015 to July
2016. The Division also offered W.S. assistance finding housing
and transportation throughout the time he remained un-
incarcerated.
W.S. was also afforded visitation, but did not attend with
regularity. When W.S. did attend visitation he did little to aid
F.C. with the children, and displayed a lack of interest in parent-
child interaction.
Prior to trial, F.C. underwent psychological and bonding
evaluations with the Division's expert Dr. Robert Kanen. The Law
Guardian's expert Dr. Antonio Burr also evaluated F.C., as did
F.C.'s expert Dr. Andrew Brown.
Dr. Kanen described F.C. as "severely hostile." He concluded
F.C.'s chronic anger, irritability, cognitive defects, history of
drug and alcohol abuse, and social history resulted in a severe
parenting deficit, rendering her unable to adequately parent the
children. Dr. Kanen opined reunification would expose the children
to an unnecessary risk of harm.
8 A-0751-16T3 Dr. Burr's evaluation described F.C. as "indifferent or
unconcerned" with the children's developmental needs. He
concluded F.C.'s hostile and belligerent attitude prevents her
from functioning appropriately as a parent. He noted F.C.'s
pervasive irritability causes her to lack empathy and effective
parenting skills. Dr. Burr opined these deficits impeded the
children's ability to achieve permanency and outweigh any bond
they have with F.C.
Dr. Brown observed a bond between F.C. and the children.
However he did not endorse the return of custody to F.C. because
she could not keep the children safe from harm.
Drs. Kanen and Burr performed psychological and bonding
evaluations on W.S. Dr. Kanen observed W.S. was disinterested and
failed to engage with the children. He concluded the children do
not recognize W.S. as a reliable parent, and reunification would
likely cause the children serious and enduring harm.
Dr. Burr observed virtually no interaction between W.S. and
the children. Dr. Burr opined W.S. was not a viable resource for
the children. He noted W.S. "is not cognizant of his children's
need for nurturing and safety."2 Dr. Burr concluded the children
2 At trial Dr. Burr explained W.S.'s substance abuse causes him to "[continue] to engage in behavior that is deleterious to himself and potentially to the children."
9 A-0751-16T3 would experience greater loss if they were separated from the
resource parent than W.S.
Trial occurred over four days, and on September 30, 2016, the
trial judge issued an opinion concluding the Division had
established by clear and convincing evidence that termination of
parental rights was appropriate. With respect to prong one of the
best interests test codified in N.J.S.A. 30:4C-15.1(a), the trial
judge stated:
Despite the Division's best attempts to engage [the parents] in treatment, they have failed to fully comply with a drug abstinence regimen and continue to lead unstable lives. . . . . Both children have exhibited unstructured behaviors and developmental delays resulting from the unstable lives of both parents. [The parents'] continued inattention to the needs of the children has and will continue to impair the health and development of both children.
The trial judge found the Division had met prong two of the
best interests standard. The judge determined the parents'
continued drug use and failure to complete drug treatment or
transition services demonstrated an unwillingness to eliminate the
harm to the children.
Addressing prong three, the trial judge recounted the
extensive history of services provided by the Division that we
have noted above. The trial court stated both parents were
10 A-0751-16T3 afforded drug treatment, psychological evaluations, homemaker
services, and visitation, yet neither parent demonstrated success
by having these services. The trial court concluded: "This Court
finds that the Division provided reasonable efforts at treatment
to [the parents]. The Division offered appropriate services that
neither parent benefitted from."
The trial judge found the Division met the fourth prong of
the best interests test. Considering the testimony of all three
experts, the trial court credited the testimony of Dr. Kanen that
the children "do not know [F.C.] as a reliable caregiver as she
is non-comforting and non-nurturing to her children." The trial
court also credited Dr. Burr's testimony that F.C.'s "drug use
impacts negatively on her overall functioning and on her
parenting."
The trial court similarly concluded W.S. was not a viable
parent. The trial court credited Dr. Kanen's testimony that W.S.
"has severe parenting deficits, having an intellectually disabled
range of intelligence and severe impairment in reasoning and
judgment." The trial court stated Dr. Kanen "further opined that
[W.S.'s] cognitive limitations, substance abuse problems, severe
[] personality disorder, and homelessness leave him unable to
provide the care and supervision necessary to protect his children
from potentially serious harm." The trial court concluded: "These
11 A-0751-16T3 conditions prevent him from providing his children with a
permanent, safe and secure home now or in the foreseeable future."
The trial court found clear and convincing evidence of a bond
between the children and the resource parent. Although there was
evidence the children were familiar with F.C. and W.S., the trial
court found credible Dr. Burr's opinion that "the attachment is
questionable."
The trial court concluded termination of parental rights
would not do more harm than good, and based on the cognitive and
developmental needs of the children, they would be safe if
separated from their parents. In this appeal, F.C. and W.C.
challenge the trial court findings.
II.
The scope of our review on an appeal from an order terminating
parental rights is limited. N.J. Div. of Youth & Family Servs.
v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of
J.N.H., 172 N.J. 440, 472 (2002)). We will uphold a trial judge's
fact-findings if they are "supported by adequate, substantial, and
credible evidence." N.J. Div. of Youth & Family Servs. v. R.G.,
217 N.J. 527, 552 (2014) (citing N.J. Div. of Youth & Family Servs.
v. E.P., 196 N.J. 88, 104 (2008)). No deference is given to the
court's "interpretation of the law" which is reviewed de novo.
D.W. v. R.W., 212 N.J. 232, 245-46 (2012) (citing N.J. Div. of
12 A-0751-16T3 Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010); Balsamides
v. Protameen Chems., 160 N.J. 352, 372 (1999)).
"We accord deference to factfindings of the family court
because it has the superior ability to gauge the credibility of
the witnesses who testify before it and because it possesses
special expertise in matters related to the family." N.J. Div.
of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2014) (citing
Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "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., supra,
196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605). We also
accord deference to the judge's credibility determinations "based
upon his or her opportunity to see and hear the witnesses." N.J.
Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88
(App. Div. 2006) (citing Cesare, supra, 154 N.J. at 411-13),
certif. denied, 190 N.J. 257 (2007).
When terminating parental rights, the court focuses on the
"best interests of the child standard" and may grant a petition
when the four prongs set forth in N.J.S.A. 30:4C-15.1(a) are
established by clear and convincing evidence. As codified,
N.J.S.A. 30:4C-15.1(a) requires the Division prove:
13 A-0751-16T3 (1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division 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.
"Importantly, those four prongs 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.'" G.L., supra, 191 N.J. at 606-07 (quoting In re
Guardianship of K.H.O., 161 N.J. 337, 348 (1999)).
F.C. contends there was insufficient evidence supporting the
court's findings on each of the four prongs of the best interests
standard. W.S. attacks the sufficiency of the trial court's
findings regarding the first three prongs. After reviewing
defendants' arguments in light of the record and applicable legal
14 A-0751-16T3 principles, we are convinced there is substantial credible
evidence supporting the trial court's findings of fact and
determination the Division established by clear and convincing
evidence under N.J.S.A. 30:4C-15.1(a), that it was in Walter and
Fiona's best interest to terminate defendants' parental rights.
A. Prong One
The first prong of the best interests of the child standard
requires the Division to establish 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).
"[T]he Division must prove harm that 'threatens the child's health
and will likely have continuing deleterious effects on the child.'"
N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 25 (2013)
(quoting K.H.O., supra, 161 N.J. at 352).
The harm need not be physical, as "[s]erious and lasting
emotional or psychological harm to children as the result of the
action or inaction of their biological parents can constitute
injury sufficient to authorize a termination of parental rights."
In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) (citing In
re Guardianship of J.C., 129 N.J. 1, 18 (1992)). The focus of the
harm is not on any isolated incident, but rather "the focus is on
the effect of harms arising from the parent-child relationship
over time on the child's health and development." K.H.O., supra,
15 A-0751-16T3 161 N.J. at 348. "Moreover, '[c]ourts need not wait to act until
a child is actually irreparably harmed by parental inattention or
neglect.'" Div. of Child Prot. & Perm. v. E.D.-O., 223 N.J. 166,
178 (2015) (quoting In re Guardianship of DMH, 161 N.J. 365, 383
(1999)).
The harm may be established by "a delay in establishing a
stable and permanent home[.]" DMH, supra, 161 N.J. at 383. "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.,
supra, 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. (citing K.H.O.,
supra, 161 N.J. at 352-54).
F.C. argues the trial court erred in its analysis of prong
one of N.J.S.A. 30:4C-15.1(a). She argues she never harmed her
children. She further argues she disclosed her marijuana use, and
never used marijuana in the presence of the children. She states
the trial court failed to account for her depression and bi-polar
disorders. She asserts she benefitted from the Division's
16 A-0751-16T3 services, which proves a termination of parental rights was
unwarranted.
W.S. argues the trial court erred in its analysis of the
first prong because there was no evidence presented that his
parental relationship harmed the children or put them at risk. He
contends DCPP failed to assist him in obtaining suitable housing,
and further argues the court impermissibly relied on his
homelessness to prove prong one.
We are not persuaded by either parent's claims. The trial
court found F.C.'s drug use harmed the children not because it
occurred in their presence, but because F.C. failed to remedy her
substance abuse issues to enable herself to parent the children.
The trial court found F.C.'s
negative behaviors while in drug treatment programs made these programs ineffective and led to her discharge. She exhibited belligerent attitudes and behaviors in the programs that have impacted the children's health and development while in her care . . . during the children's stay with her at the Mommy-and-Me programs and after the children were removed and placed in the Division custody.
We likewise reject F.C.'s argument the trial court failed to
account for her untreated mental health issues. The record is
replete with efforts by the Division to secure mental health
treatment for F.C., including medication to address her needs.
17 A-0751-16T3 However, F.C. failed to follow through in the treatment made
available by the Division.
W.S.'s track record in treatment was more troubling. Whereas
F.C. enrolled in and was discharged from drug treatment programs,
W.S. failed to attend his treatment or address his drug use
altogether. This lack of engagement limited his ability to have
unsupervised contact with the children. Although the Division
provided W.S. with housing assistance, his homelessness was not
the root cause of the harm to the children. Rather, it was W.S.'s
failure to address his substance abuse as the foundation for his
ability to provide a stable home for the children.
Because of both parents' failure to address their substance
abuse and mental health issues the trial court concluded:
Both children have exhibited unstructured behaviors and developmental delays resulting from the unstable lives of both parents. Their continued inattention to the needs of the children has and will continue to impair the health and development of both children. Despite attempts by the Division to remedy the instability in the lives of the parents, they continue to place their own needs before those of the children. A parent's prolonged inattention to a child's needs is deleterious to the child's relationship with that parent.
The record demonstrates substantial credible evidence Walter and
Fiona's health and development were harmed by the relationship
with F.C. and W.S.
18 A-0751-16T3 B. Prong Two
"The second prong, in many ways, addresses considerations
touched on in prong one." F.M., supra, 211 N.J. at 451. The
focus is on parental unfitness. K.H.O., supra, 161 N.J. at 352;
DMH, supra, 161 N.J. at 378-79. In considering this prong, the
court should determine whether it is reasonably foreseeable that
the parent can cease to inflict harm upon the child. N.J. Div.
of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). The
second prong may be satisfied
by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child.
[K.H.O., supra, 161 N.J. at 353.]
"Prong two may also be satisfied if 'the child will suffer
substantially from a lack of . . . a permanent placement and from
the disruption of [the] bond with foster parents.'" F.M., supra,
211 N.J. at 451 (quoting K.H.O., supra, 161 N.J. at 363).
two and concluding she was unwilling to eliminate the harm to the
19 A-0751-16T3 children. She asserts her bipolar disorder was not treated, and
she was unable to find a psychiatrist who accepted her insurance,
which precluded her from safely parenting the children.
second prong because the Division failed to account for his
disability and lack of housing. As a result he claims he was
unable to provide a safe and stable home for the children.
The record does not support either parent's claims. The
Division referred F.C. to eight mental health evaluations. While
under psychiatric care at both Straight and Narrow and Integrity
House, F.C. refused to take medication, chose to discontinue her
medication regimens, and failed to follow-up with available mental
health services. The Division provided F.C. with the contact
information for Bridgeway Services to find a psychiatrist who
accepted her insurance. However, Bridgeway's records indicate
F.C. failed to contact them. F.C. was placed into the Integrity
House program for treatment of cannabis abuse and bipolar disorder.
This program afforded her access to a psychiatrist to obtain
medication, but F.C. refused to comply.
Similarly, the Division made numerous attempts to engage W.S.
in drug treatment, but he repeatedly failed to attend or was
discharged due to non-compliance. W.S. also consistently tested
20 A-0751-16T3 positive on his drug screens. And as a result of incidents of
domestic violence involving F.C., W.S. was incarcerated.
Although each parent blames the Division for their failure
to find stability, a parent's "responsibility for creating [a]
situation . . . cannot be ignored." In re Adoption of Child by
P.S., 315 N.J. Super. 91, 118 (App. Div. 1998). The trial judge's
decision recognized F.C. and W.S.'s exclusive role in creating
their adverse situation. The judge stated:
Both parents failed to adhere to the restrictions set forth on a Safety Protection Plan implemented in order to prevent further harm to the children. . . . Continued drug use and resistance to change makes both of these parents unwilling to eliminate the harm that such instability has caused and will continue to be caused to the children.
The record amply supports the trial court's conclusions that prong
two has been met.
Also, both parents assert after entry of the judgment the
resource parent requested removal of the children from her care.
Thus, they claim a safe home cannot be guaranteed, thereby creating
a state of "limbo" for the children. They argue a termination of
parental rights is an "unnecessary and unwise" decision, and the
focus should be on reunification. The Division indicates it has
located a pre-adoptive home for the children. Regardless, these
conditions do not invalidate the trial court's findings that both
21 A-0751-16T3 parents are unwilling to eliminate the harm to the children and
provide them with a safe and stable home.
C. Prong Three
Under prong three, the trial court must consider whether "the
[D]ivision made reasonable efforts to provide services to help the
parent correct the circumstances which led to the child's placement
outside the home[.]" N.J.S.A. 30:4C-15.1(a)(3). The Division's
efforts must be analyzed "with reference to the circumstances of
the individual case," including the parent's degree of
participation. DMH, supra, 161 N.J. at 390.
N.J.S.A. 30:4C-15.1(c) defines reasonable efforts as those
reasonable "attempts by an agency authorized by the [D]ivision to
assist the parents in remedying the circumstances and conditions
that led to the placement of the child and in reinforcing the
family structure[.]" The statute lists examples of "reasonable
attempts" at reunification, including but not limited to:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development, and health; and
(4) facilitating appropriate visitation.
22 A-0751-16T3 [Ibid.]
F.C. and W.S. both argue the trial court erred in its analysis
of prong three of N.J.S.A. 30:4C-15.1(a)(3). For the first time
on appeal, they claim the Division violated the Americans with
Disabilities Act (ADA), 42 U.S.C. 12101 to 12213, by failing to
accommodate their disabilities through the services it offered.
Absent plain error leading to the possibility of an unjust
result, we generally decline to consider arguments not raised at
trial. Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Notwithstanding, we reject defendants' claims because we have
expressly held "the ADA does not provide a defense to a termination
of parental rights proceeding [because] . . . to allow the
provisions of the ADA to constitute a defense to a termination
proceeding would improperly elevate the rights of the parent above
those of the child." N.J. Div. of Youth & Family Servs. v. A.G.,
344 N.J. Super. 418, 442 (App. Div. 2001). Furthermore, "[t]he
Division's efforts in providing classes and parenting programs
must by their very nature take into consideration the abilities
and mental conditions of the parents[,]" but the determination of
reasonableness does not turn on the success of those efforts.
Ibid.
23 A-0751-16T3 Here, the record amply demonstrates the Division's efforts
to provide both parents with tailored services to reunify them
with the children. Yet, throughout the five years of the
Division's involvement F.C. and W.S. exhibited consistent non-
compliance with substance abuse treatment and parenting programs
tailored to their individual needs and preferences.
Despite W.S.'s continued drug use and failure to attend
parenting classes and mental health evaluations, the Division
persisted in referring him to CADC for evaluations and drug tests.
Despite F.C.'s constant discharge from programs, the Division
continued to refer her to CADC for evaluations and enroll her in
new treatment programs to achieve reunification.
The Division offered both parents visitation. Although F.C.
took advantage of the visitation, she was aggressive with the
children and exhibited poor parenting behavior during visits. W.S.
failed to attend most of the visitation offered by the Division,
and when he did attend he was inattentive to the children.
The Division explored kinship legal guardianship as an
alternative to termination of parental rights with the relative
resource. However, K.M. declined it because of the disruptive
effect of parental visitation on the children.
Every factor of N.J.S.A. 30:4C-15.1(c) demonstrating
reasonable efforts was met. The record offers no support for the
24 A-0751-16T3 parents' claims the Division did not make reasonable efforts to
provide services.
D. Prong Four
The fourth prong of the best interests of the child standard
requires the Division to show that termination of "parental rights
will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4).
Termination of parental rights poses a risk to children due to the
severing of the relationship with their natural parents, but it
is based "on the paramount need the children have for permanent
and defined parent-child relationships." K.H.O., supra, 161 N.J.
at 355 (quoting N.J. Div. of Youth & Family Servs. v. J.C., 423
N.J. Super. 259, 266 (App. Div. 2011)).
Thus, "the fourth prong of the best interests standard [does
not] require a showing that no harm will befall the child as a
result of the severing of biological ties." Ibid. Prong four
"serves as a fail-safe against termination even where the remaining
standards have been met." G.L., supra, 191 N.J. at 609. "[T]he
question to be addressed under [prong four] is whether, after
considering and balancing the two relationships, the [children]
will suffer a greater harm from the termination of ties with
[their] natural parents than from permanent disruption of [their]
relationship with [their] foster parents." I.S., supra, 202 N.J.
25 A-0751-16T3 at 181 (citations omitted). "'[T]o satisfy the fourth prong, the
[Division] 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 foster parents.'" F.M., supra, 211 N.J.
at 453 (citations omitted).
F.C. alone challenges the trial court's finding under prong
four of N.J.S.A. 30:4C-15.1(a). Specifically, she claims because
neither Dr. Kanen nor Dr. Burr conducted psychological evaluations
of the children, their evaluations are incomplete, and prong four
has not been met. We disagree.
After conducting a psychological evaluation of F.C., Dr.
Kanen concluded she had severe parenting and behavioral deficits,
and the children's attachment to her was insecure. The trial
court recited the expert's findings:
[Dr. Kanen] opined that [F.C.'s] capacity to cope with the demands of daily life and childcare is evenly impaired. He describes her as disconnected with paranoid ideation, obstructive behavior and chronic anger. He concluded that [F.C.] is not capable of providing her children with a permanent, safe and secure home now or in the foreseeable future.
The trial court credited Dr. Kanen's testimony that the children
have severely impaired attachments to F.C., and that they should
have no contact with her because of her anger.
26 A-0751-16T3 Dr. Burr also opined the quality of F.C.'s relationship with
the children was not adequate to achieve permanency. The trial
court summarized his testimony that F.C.'s "drug use negatively
impacts on her overall functioning and on her parenting." The
trial court also found credible Dr. Burr's testimony that "[F.C.]
did not exhibit an understanding of the children's needs and has
no understanding of how the children are doing in their treatment
programs."
F.C.'s own expert, Dr. Brown, suggested she did not exhibit
the mental competence to protect her children from harm. As the
trial court noted, Dr. Brown "recommended psychiatric management
and attendance at weekly individual psychological therapy for at
least [four] months or [sixteen] sessions [for F.C.] [while]
simultaneously submitting monthly negative urine samples." Dr.
Brown also concluded the children were not securely bonded to F.C.
We are unconvinced psychological evaluations of the children
were either necessary or dispositive of the findings regarding the
status of F.C.'s mental health and ability to parent. The evidence
in the record regarding the children's mental health demonstrates
both Walter and Fiona suffered from mental health deficits, which
would only be exacerbated by the parental relationship.
Conversely, Drs. Kanen, Burr, and Brown all agreed the structured
relationship with the resource parent was beneficial to the
27 A-0751-16T3 children. Thus, the termination of parental rights followed by
adoption would not do more harm than good.
Affirmed.
28 A-0751-16T3