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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1885-24 A-1886-24
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
F.K. and J.L.,1
Defendants-Appellants. _________________________
IN THE MATTER OF THE GUARDIANSHIP OF K.L., a minor. _________________________
Argued October 21, 2025 – Decided January 15, 2026
Before Judges DeAlmeida and Torregrossa-O'Connor.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-0011-25. 1 We use initials and pseudonyms to protect the parties' privacy. R. 1:38- 3(d)(12). Ryan T. Clark, Designated Counsel, argued the cause for appellant F.K. in A-1885-24 (Jennifer Nicole Sellitti, Public Defender, attorney; Ryan T. Clark, on the briefs).
Caitlin A. McLaughlin, Designated Counsel, argued the cause for appellant J.L. in A-1886-24 (Jennifer Nicole Sellitti, Public Defender, attorney; Caitlin A. McLaughlin, on the briefs).
Julia B. Colonna, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Donna Arons, Assistant Attorney General, of counsel; Julie B. Colonna, on the brief).
Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for minor K.L. (Jennifer Nicole Sellitti, Public Defender, Law Guardian, attorney; Meredith Alexis Pollock, Deputy Public Defender, of counsel; Noel C. Devlin, of counsel and on the brief).
PER CURIAM
In these consolidated appeals, defendant F.K., the biological mother of
K.L., born in December 2020, appeals from the February 10, 2025 judgment of
the Family Part terminating her parental rights to K.L. She contends the court
erred in finding the New Jersey Division of Child Protection and Permanency
(Division) proved by clear and convincing evidence prongs one, two, and four
of N.J.S.A. 30:4C-15.1(a)'s test to determine whether termination is in the best
interests of the child.
A-1885-24 2 Defendant J.L., K.L.'s biological father, also appeals from the order
terminating his parental rights. J.L. contends the Division failed to prove by
clear and convincing evidence all four prongs required for termination under
N.J.S.A. 30:4C-15.1(a).
The respective law guardians on appeal support the terminations regarding
both parents, as they did before the trial court. Based on our review of the record
and applicable law, we are satisfied the record supports the court's decision to
terminate both defendants' parental rights. We affirm.
I.
The trial in this matter followed extensive Division involvement with
defendants concerning the care and safety of their young son, K.L. The
following condensed history is derived from the Division's records admitted at
trial, and trial testimony from the Division's expert psychologist, a Division
caseworker, and the resource parent, F.K.'s aunt, W.B. Defendants did not
appear for or present evidence at trial.
Defendants, the married parents of K.L., first became known to the
Division in October 2020, upon a referral reporting F.K. was using
methamphetamines while pregnant with K.L. K.L. was born two months later
without medical issues, and the Division closed its investigation.
A-1885-24 3 Division records reveal a series of incidents followed. Division contact
sheets indicated in June 2021, "[J.L.] was found slumped over [in] his vehicle.
The vehicle was parked. . . . Drug paraphernalia was found in the car . . . . There
was a crack pipe and needle found as well. He was charged with possession in
the [thi]rd degree." One month later, "[a] report [came in to] police of an
unconscious person at a [convenience store]," and "[J.L.] was arrested for having
[nine] plastic baggies with a white rock[-]like substance. There was also a
hypodermic needle." Two months later, "[F.K.] reported her vehicle stolen and
it was later found that [J.L.] had stolen the vehicle. [J.L.] then had an accident
with the vehicle and the vehicle was towed." 2
On October 5, 2021, the Division received a referral that J.L. was outside
of a gas station panhandling with K.L. J.L. reportedly "looked awful" and was
"holding a baby in his arms 'like a football' and going up to cars asking for
money." Division workers visited defendants at their mobile home in Atlantic
County later that day. Division workers performed a safety assessment, and
K.L. appeared "clean and well cared for." They found "all of the necessary baby
items" and noted "no concerns" in the home, which also contained "ample food."
2 The trial court noted these early incidents, but clarified its primary focus was the time period after emergency removal of the child in March 2023. A-1885-24 4 At the time, F.K. and J.L. both acknowledged their prior substance abuse
histories, including their respective participation in Recovery Court. F.K.
denied any current drug use, but explained J.L. relapsed in June. She stated she
would never leave the baby with J.L. under the influence. Defendants later
tested negative for substances, and the Division again closed the matter.
The next Division referral came on March 13, 2023, when a neighbor
reported J.L. was passed out behind the wheel of his truck while the truck was
running. The neighbor also advised of suspected heroin use by both F.K. and
J.L. Division workers went to defendants' home in Atlantic County and
discovered K.L. had been staying with W.B. and her husband, J.B. F.K. and J.L.
stated they were living in Gloucester County with F.K.'s grandfather while
renovating their trailer, which they rented. Defendants indicated K.L. could not
return home until these improvements were made. They claimed they were last
in drug treatment in 2021.
W.B. confirmed she and J.B. had been caring for K.L. in their home five
days a week, and defendants would "pick [K.L.] up for a day or two." She
indicated they previously cared for K.L. in 2021 when J.L.'s drug addiction led
J.L. and F.K. to leave New Jersey. Division reports reflected K.L. appeared
A-1885-24 5 well-nourished, and his great aunt and uncle provided an "abundant amount of
toys and educational things for K[.L.]"
Both defendants then tested positive for fentanyl and THC and refused to
agree to a family safety plan. Consequently, the Division effectuated an
emergency removal of K.L. The court granted the Division custody and ordered
defendants submit to drug testing and treatment, but allowed defendants liberal
supervised visitation with K.L. The child remained in the care of his great aunt
and uncle. Division visits with the child while in their care revealed he remained
happy, healthy, and affectionate towards W.B. and J.B.
Defendants repeatedly tested positive for fentanyl in April and May of
2023, and never complied with additional testing. F.K. underwent a substance
abuse evaluation, which recommended intensive outpatient treatment she never
completed. Neither defendant participated in drug treatment or parenting
services after K.L.'s removal.
Defendants attended visits with K.L. throughout 2023, with some
interruptions. Initially, supervised visits took place at W.B.'s home, but
Division records noted defendants appeared inconsistently and sometimes
unannounced and objected to W.B. and J.B.'s supervision of their visits. In
A-1885-24 6 October 2023, discord between W.B. and defendants resulted in an altercation
and the location for supervised visits was changed to the Division's offices.
Records noted a December 2023 visit, when J.L. began shouting at a
worker and refused to take a urine test, requiring security to intervene.
Consequently, the site for future visits was moved so that security could be
present. Defendants missed five weeks of visits, and Division records note, after
February 2024, defendants showed up consistently late. Efforts at conducting
drug testing and securing consistent treatment were similarly unsuccessful,
despite the Division's willingness to transport defendants.
Division records memorialized positive interactions between defendants
and K.L. Reports noted F.K. was affectionate towards K.L. and brought toys
for the child, and J.L. similarly made K.L. feel "comfortable," changing his
diaper and playing during their interactions. However, in March 2024, although
the court did not approve the Division's plan to proceed with terminating
defendants' parental rights, the court found neither defendant had been
compliant with court-ordered drug treatment or testing, and housing remained
unsuitable for reunification.
A-1885-24 7 J.L. suffered a hand injury in early 2024, requiring hospitalization and
treatment. He claimed this interfered with his ability to comply with court
orders and services.
Defendants eventually submitted to psychological evaluations conducted
by Dr. Gregory Gambone in June 2024. Dr. Gambone's report indicated he
found no major intellectual deficits, but diagnosed each with substance use
disorders and resistance to treatment and recommended defendants attend
substance abuse evaluations, parenting skills classes, and individual therapy. 3
Dr. Gambone opined J.L. "should not currently be considered capable of
adequately parenting his son . . . on an independent basis." The doctor reported
J.L. possessed only "a superficial understanding of the physical, emotional,
intellectual and social needs of h[is] son," had been "unwilling or unable to
consistently meet the parenting needs of his son," but he remained "willing to
participate in recommended training and treatment services." The report
detailed necessary services and treatment that would have to be completed based
on the evaluation before any unsupervised contact could be safely assumed.
3 Although Dr. Gambone's report was admitted at trial, the parties and the court agreed the court would consider it for the purpose of identifying the resulting recommended treatment and services for each defendant, not for any expert opinion. We similarly note its contents for context only regarding those recommendations. A-1885-24 8 Dr. Gambone similarly reported F.K. as "unwilling or unable" to meet her
son's "parenting needs," but "willing to participate in recommended training and
treatment services." The doctor recommended "unsupervised contact [with
K.L.] be contingent on [F.K.'s] successful completion of
services . . . . [C]onsiderations of reunification should be accompanied by
services . . . and should take into account [F.K.'s] treatment progress, continued
sobriety, and compliance with all services provided by the Division."
The Division officially commenced its action to terminate defendants'
parental rights and filed for guardianship of K.L. on July 10, 2024. The court
again ordered defendants submit to urine screens, hair follicle tests, evaluations,
parenting skills classes, and therapy.
After repeatedly canceling appointments, defendants each submitted to
psychological evaluations in October 2024 conducted by clinical and forensic
psychologist Dr. James Loving. Dr. Loving reported F.K. appeared alert and
oriented, expressed "[n]ormal" thought content and processes; however,
demonstrated "[l]imited" insight and "[p]oor" judgment. The doctor indicated
F.K. engaged in "blame-shifting," and "was defensive and lacking in candor
about the details of her drug use." F.K. admitted the trailer remained unsuitable
for K.L.'s return.
A-1885-24 9 As to J.L., Dr. Loving reported he admitted to "struggling with relapses
over recent months." The doctor indicated J.L. was not compliant with drug
screens since the positive tests in early 2023, noting J.L.'s treatment for a hand
injury from February 2024 to April 2024. J.L. expressed pessimism to Dr.
Loving concerning reunification and presented with "defensiveness" throughout
the evaluation. J.L. claimed he did not perceive any issue with housing and
indicated the trailer was a safe environment for K.L.
As to both parents, Dr. Loving gave "a very poor prognosis for achieving
safe reunification within the foreseeable future." Accordingly, the doctor
reported he "support[ed] the Division's goal of adoption for [K.L.] by his current
caregivers," citing the nineteen months since removal, during which both
parents "almost entirely" failed to comply with services and Division efforts.
By this time, defendants reported living at their trailer in Atlantic County,
and the Division arranged for services in Atlantic County, provided bus passes,
and offered transportation to services and screenings. Defendants canceled and
did not reschedule a home inspection. They claimed a prior attorney advised
them not to submit to drug testing, but they were now willing to undergo an
evaluation, yet failed to comply. The court ordered a hair follicle test for
A-1885-24 10 October 2024, for which the Division offered door-to-door transport, but
defendants did not attend.
Visitation continued, but Division staff noted defendants appeared
disheveled and at times exuded a strong odor. Division workers documented
their suspicion defendants used fentanyl during visitation, describing defendants
disappearing into the bathroom for ten minutes and appearing "dazed" upon
return. Staff noted instances of defendants "nodding off" after long trips to the
bathroom during visits with K.L. They reported F.K. slurring her words and
appearing unsteady on her feet, and J.L. pacing with dilated pupils.
Trial took place on February 10, 2025, and the testimony corroborated the
Division records, which were also admitted on that date. W.B. testified K.L.
lived with her and her husband "off and on" from the time he was four months
old. She indicated her desire to adopt then-four-year-old K.L. to afford stability
for the child. Specifically, W.B. explained defendants "had a long history of
drug abuse." She stated defendants "have never done anything to show any
effort that they are willing to adjust their lives and we just feel that K.[L.]
deserves the stability, the love, the selflessness that my husband and I can
provide and have always provided for him."
A-1885-24 11 She recounted Division workers discussing possible permanency plans,
explaining "KLG [(Kinship Legal Guardianship)] versus adoption," and
providing all the necessary information to understand the difference. W.B.
acknowledged KLG kept parental rights intact, noting "[defendants] would
remain [K.L.'s] parents and [W.B. and her] husband . . . would just become his
legal guardians." She described adoption as "completely terminat[ing]"
defendants' parental rights and making W.B. and her husband K.L.'s parents.
She testified she would never consider KLG in these circumstances.
Dr. Loving next testified regarding his recent psychological evaluations
of both defendants. He described his evaluation as a "risk assessment" for the
purpose of identifying "barriers to reunification" and providing a "prognosis or
likelihood of being able to achieve successful reunification in the foreseeable
future."4 He reviewed the Division's records, conducted clinical interviews for
approximately two hours discussing with each defendant "the [Division]
situation," "parenting issues," and "background issues," and performed
"psychological testing." He narrated the family's history, and noted defendants'
4 The parties stipulated to Dr. Loving's credentials and expertise in the field of clinical and forensic psychology based on his approximately 3,800 psychological evaluations, including evaluations for parenting capacity, parent- child relationships, and bonding and attachment. A-1885-24 12 acknowledgment of their substance abuse, their prior positive drug testing, and
their "noncomplian[ce] with everything except supervised visits with K.[L.]"
Dr. Loving testified defendants engaged in supervised visits with K.L.
with "mixed" results. He cited defendants' exhibiting "signs of substance abuse"
and "being under the influence" during the visits, but generating "no[] concerns
with their interactions with K.[L.]"
He described F.K. as "cooperative" but "difficult to believe." He testified
she denied drug use at the times of the various referrals. She advised her
attorney told her not to comply with the court-ordered testing after she tested
positive for fentanyl in the first three months after K.L.'s removal. She also
contended any positive fentanyl tests were "false positives." As for treatment,
F.K. claimed the programs and providers obstructed her ability to comply.
The doctor identified three main concerns regarding F.K.: her drug use
and failure to comply with treatment programs, her husband's drug use, and the
lack of suitable housing for K.L. Regarding housing, Dr. Loving explained that
F.K. expressed a desire to perform renovations to the trailer defendants rented
in Atlantic County, but claimed despite the long period of time that had passed,
"they ha[d not] been able to complete those renovations." She told Dr. Loving
the work remained uncompleted, and the trailer's condition, including exposed
A-1885-24 13 wiring, rendered the premises unsuitable for K.L.'s safe return. Because
defendants had not permitted inspection of the premises, the doctor relied on
F.K.'s representations that she could not offer a "safe living arrangement . . . for
K.[L.]" and found "just a poor likelihood that [F.K. was] going to take the steps
necessary in the foreseeable future to make sure that her home is safe and healthy
for K.[L.] in order to be able to reunify."
Dr. Loving diagnosed F.K. with "opioid use disorder," and found "there's
been evidence of more recent drug use than what she reports." F.K., then age
thirty, admitted to "extensive substance use back to about age
[eighteen] . . . throughout her adulthood." The doctor testified F.K. confirmed
she had conflicts with W.B. and J.B., characterizing them as trying to take the
child from her.
Dr. Loving described J.L. and F.K. as "extremely similar," but emphasized
he evaluated each distinctively and separately; and, despite coming to similar
conclusions about each, explained he did not employ a "cookie cutter"
assessment of them collectively. The doctor testified J.L., like F.K., stopped
complying with drug testing after repeatedly testing positive for fentanyl up
until June 2023. J.L. also claimed these results were "false positives." J.L.
communicated "there[ was] only so much he was going to cooperate with,"
A-1885-24 14 indicating defendants "stopped complying because of frustration with the false
positives." The doctor found J.L. "defensive" and attributing the lack of
treatment to the providers and the Division, as well as his hand injury.
Dr. Loving diagnosed J.L. with severe opioid usage disorder, cocaine use
disorder, and "adjustment disorder with anxiety and depression," all untreated.
He testified J.L. had admitted some recent substance relapses. Despite his lack
of treatment, J.L. told Dr. Loving he believed the child should be returned to his
care. Dr. Loving explained J.L., unlike F.K., identified the "only barrier" to
K.L.'s coming home was "mov[ing] some boxes around," and claimed
defendants "remedied all of the major concerns." Dr. Loving concluded that J.L.
presented the same three main issues presented by F.K. and opined J.L. had a
"poor prognosis" for addressing his condition or the risks to K.L. in the future.
Ultimately, Dr. Loving testified reunification of defendants with K.L.
remained unsafe. He found intolerable the "obvious risks" involved when
opioid-addicted parents care for a child, particularly when the drug at issue is
fentanyl. The doctor explained fentanyl use not only impedes defendants' ability
to safely care for and supervise the young child, but its mere presence in the
home risks his welfare from accidental contact with the substance. Additionally,
Dr. Loving concluded that future reunification was unlikely due to defendants'
A-1885-24 15 "poor prognosis for change." As such, Dr. Loving recommended execution of
the Division's permanency plan to have K.L. adopted by his great aunt and uncle,
W.B. and J.B., with whom the young child had resided at least since his removal
nearly two years earlier.
Dr. Loving further emphasized he would not support reunification even if
W.B. and J.B. were unwilling to adopt or care for him. The doctor indicated he
was not asked to conduct a bonding evaluation. He described "only positive
collateral input about how K.[L. was] doing and his resource parents'
commitment to adoption," but opined "even if that were off the table, this is just
not a safe situation for reunification now or in the foreseeable future." He
explained, "kids need permanency. So, K.[L.], who has been in placement as
long as he has, needs to settle into a home that's permanent."
The court asked the doctor whether defendants had complied with the
court's most recent order to submit to hair follicle testing. Dr. Loving responded
they had not, and indicated their most recent failure to test factored into his
conclusion their future compliance with testing and services remained unlikely.
The doctor also cited Division reports of defendants appearing under the
influence at visits, citing F.K.'s nodding off, J.L.'s demeanor, their unkempt
appearances, and "track marks" on their arms.
A-1885-24 16 Division caseworker Diana Blocker then testified, first authenticating the
Division records related to the family. She testified regarding the Division's
history with defendants dating back to the report in October 2020 regarding F.K.
abusing methamphetamines while pregnant with K.L. She explained F.K.
refused services, and because there were no children in defendants' care, the
Division closed the investigation.
The caseworker explained the Division's efforts upon the referral in March
2023, raising concerns about both defendants' drug use. She indicated
defendants tested positive, but refused treatment and would not agree to a safety
plan. When the Division learned K.L. was primarily residing at W.B.'s home,
and they confirmed his safety in W.B. and J.B.'s care, the Division proceeded
with emergency removal. She learned K.L. had been with his maternal great
aunt and uncle "for the majority of his life on and off." She described the child
as well cared for and the home as "licensed."
Blocker confirmed F.K. submitted to only an initial substance abuse
evaluation upon K.L.'s removal, which resulted in recommended intensive
outpatient treatment, with which F.K. never complied. F.K. only completed four
drug screens after K.L.'s removal, and each was positive for fentanyl.
A-1885-24 17 Regarding the Division's attempts to secure treatment for F.K., Blocker
testified about various efforts, including referring F.K. to Helping Hand, a drug
treatment center. However, Helping Hand terminated involvement because F.K.
missed three appointments. Blocker recounted the history of missed
appointments and defendants' failure to attend evaluations and testing, which
comported with the Division records. She described the recent efforts made by
the Division to conduct court-ordered hair follicle testing for both defendants at
a location in Burlington County, including providing "door-to-door"
transportation to and from, but advised defendants did not cooperate.
The caseworker testified J.L. never completed a substance abuse
evaluation despite his positive testing, and likewise ceased compliance with
recommended services. Helping Hand similarly terminated its attempts to
engage J.L. J.L. refused to submit to any drug screens, despite repeated
notifications and orders. She indicated neither defendant complied with the
services recommendations of Dr. Gambone.
Blocker testified about visitation, describing the transition from
supervised visits in W.B.'s home to professional supervised visits. She
confirmed defendants sporadically failed to appear, but were otherwise
consistent in appearing—F.K. more than J.L.
A-1885-24 18 She described staff suspicions defendants were at times using substances
or under the influence, noting their hygiene issues and behavior, including,
nodding out, falling asleep during the visits, periods of going in and out of the visitation, whether it be in the office . . . or the visitation room and then they'd be in the bathroom for periods of time and then would come back out and have that affect.
She recounted times the visits were terminated due to these observations, which
caused J.L. to become argumentative, and led to the need for security.
She indicated defendants refused to comply or thwarted all Division
attempts to assess the condition of the home. She detailed both defendants'
noncompliance with treatment and testing, the accommodations made by the
Division including offers of transportation, and the supervised visitation
sessions. Blocker described advising defendants repeatedly regarding the
importance of their compliance, but "they think it's ridiculous. They don't really
feel the need to." When they claim the distance is too far, transportation is
refused. She quoted J.L. as recently stating, "I just am not doing it."
Blocker represented defendants were told and understood the Division
was seeking termination of their parental rights and were advised of the trial
date. She indicated she attempted to provide defendants with transportation to
the trial, but F.K. declined, and in a group text with J.L., indicated she "wasn't
A-1885-24 19 coming." Blocker added that F.K. "had some not so nice words for [her], and
she indicated that she was just going to forfeit her rights."
Blocker testified she observed K.L. in the home with W.B. and J.B.
"multiple times." She described K.L. as a "typical toddler," "very energetic"
and "very affectionate towards" them. She elaborated, "If he's crying, he will
seek them for comfort and kind of, you know, solace. . . . [T]hey have a
daughter . . . that resides in the home who he also has a close relationship with,
as well. He . . . appears happy and just silly and energetic and all those things."
She emphasized defendants sought to have K.L. placed with W.B. and J.B. upon
his removal. She noted K.L. has no special needs, and his needs are being met
in the home.
Blocker explained she discussed adoption versus KLG with W.B. and J.B.,
indicating the Division had no preference. The resource parents indicated no
interest in KLG, noting "safety concerns" regarding defendants, although they
maintain relationships with other common relatives, including J.L.'s mother.
Defendants' attorneys' brief closing arguments focused solely on claiming
the Division failed to make reasonable efforts to provide convenient services in
proximity to defendants' Atlantic County residence. The Division and the Law
Guardian argued the Division met the burden of satisfying all four prongs of
A-1885-24 20 N.J.S.A. 30:4C-15.1(a), as to each defendant, and termination was necessary and
in the best interest of K.L.
After a three-hour recess to review the matter, the court rendered an oral
decision and entered a corresponding order granting the Division's guardianship
application and terminating both defendants' parental rights.
The court commenced its oral findings, noting defendants' absence from
trial despite proper service of the guardianship complaint and notice of the
proceeding. The court noted K.L., age four, resided with his maternal great aunt
and uncle "off and on" from the time he was "only a few months old."
The court then identified the applicable law and legal standards, and
performed its analysis under the standard set forth in N.J.S.A. 30:4C-15.1(a).
As to prong one, whether the child's safety has been or will continue to be
endangered by the parental relationship, the trial court cited defendants'
substance abuse and inadequate housing. As to defendants' substance abuse, the
trial court found "an irresistible inference" "that [defendants] were using and
continue to use fentanyl unabated despite what they had been telling others."
The court emphasized defendants' testing positive for fentanyl and subsequently
refusing further testing. The trial court noted, "when months add up to months
after months of just . . . not presenting yourself for a variety of reasons, at some
A-1885-24 21 point in time, that turns into . . . the equivalent of positive findings." Further,
the trial court rejected F.K.'s claim that she tested positive for fentanyl due to
laced marijuana because she later tested positive for only fentanyl.
The trial court found Dr. Loving "very credible" in his opinion that
"neither [defendant] in the reasonably foreseeable future will be in a position for
reunification" because "[b]oth suffer from severe opioid use disorder and [J.L.]
also having an additional mental health diagnosis." The court found persuasive
Dr. Loving's concerns regarding defendants' failure to submit to testing or
treatment and his equating such noncompliance to positive substance abuse
findings. The court noted defendants made no effort to abate concerns.
The court then noted, regarding "the housing issue," F.K. told Dr. Loving
"the home was not yet appropriate for bringing the child home for reunification."
And, although J.L. said the home would be ready after cleaning up "some boxed
personal effects," "the fact that [defendants] did not with a clear singular voice
say that they were ready, willing and able to take the child home in terms of
adequate housing speaks loudly," leading the court to find "[defendants] don't
have a viable plan for reunification."
Consequently, the court found K.L.'s "safety, health or development has
been or will continue to be endangered by the parental relationship." Further,
A-1885-24 22 the court credited W.B.'s testimony "that [defendants] have never shown any
effort to address their substance abuse issues," and agreed defendants "simply
show no inclination or motivation to do the things necessary to stop the cycle of
substance abuse and to prioritize raising their child."
As to the second prong, whether the parents are unwilling or unable to
eliminate the harm facing the child, the court noted, "it is difficult to impossible
when it comes to substance abuse to definitively delineate between unwilling
and unable," and "there comes a point in time . . . where being unwilling turns
into unable." The court cited Division efforts to provide services and gain
compliance, but found, "[t]hroughout the duration of this case," defendants
"expressed that they did not want to use the Division’s service," and "[a]t no
time between March of 2023 and today did [defendants] take advantage of the
numerous opportunities they had to address their substance use issues." The
court again noted Division efforts, indicating "transportation" to "paid for"
treatment was available but "they simply didn't do it." Thus, the court found
defendants refused to eliminate the risk of harm to the child.
As to the third prong—whether the Division made reasonable efforts to
provide services to assist defendants in correcting the circumstances which led
to the child's placement outside of the home, and whether there are viable
A-1885-24 23 alternatives to termination of parental rights—the court first found the Division
showed reasonable efforts, reviewing the history. The court rejected claims the
services were geographically prohibitive, noting the Division offered
transportation. The court found the Division "offered portal-to-portal
transportation" and "bus passes" so that defendants could comply, and
"[t]ransportation was a non-issue." The court thus concluded that the Division
"did exercise reasonable efforts" and facilitated defendants' ability to comply
with services to no avail.
Regarding viable alternatives to termination, the court noted that, as to the
"differences between KLG and adoption," W.B. "was very clear in her testimony
that the only one of those two alternatives she would consider is adoption." The
court found W.B. "impress[ive]" and "forthright" in her testimony. The court
credited "[W.B.]'s relationship and knowledge with respect to [defendants] and
how they had acted since they took official custody," and her testimony "they
were not willing to participat[e] in a KLG relationship." The court continued,
"in this particular case, it is a relative who is the placement. The child was well-
acquainted with them before the removal even took place. It's a natural location
for the child." Accordingly, the court found "there's no basis to hold [-]up
termination of parental rights because KLG is a theoretical possibility."
A-1885-24 24 The court specifically concluded "delay of placement will only add to
[the] harm." The court explained "[t]he child has been with . . . the placement
for most of his life since he was only four or five months old and increasin gly
so according to what [it] saw in the exhibits." The court characterized the
relationship as beginning when W.B. and J.B. gave defendants "a break;"
however, "the break turned into a couple days during the week and, ultimately,
it turned into almost the parents were visiting with their own child with the aunt
and uncle."
The court further noted defendants had not "shown any inclination
whatsoever to seek treatment . . . whether motivated for themselves, each other
or the child, they didn't show up for the trial with any sort of plea or plan as to
what they intended to do." Consequently, the court found "no justification
or . . . benefit" in further delay.
As to the fourth prong—whether termination of parental rights will do
more harm than good—the court found the Division "satisfied its burden"
because defendants "are at present unable to care for themselves in a minimal
fashion and they're not in a position to provide an adequate safe environment to
raise their son." The court recognized "there's always a certain amount of harm"
attendant to terminating parental rights, noting, "[t]here are things unique that
A-1885-24 25 each of these parents have to offer their child." However, the court found the
circumstances demonstrated termination will not exact greater harm than good.
The trial court then emphasized it "was very impressed" by W.B. and
persuaded "she is in a great position to provide . . . an ongoing home for K.[L.]"
The court detailed its reasons for crediting Dr. Loving's opinions and credibility,
and likewise found Blocker "highly credible" because "her testimony was [one-
hundred] percent consistent with everything [the trial court] saw in the exhibits."
II.
On appeal, F.K. argues the trial court erred in finding: (1) prong one
satisfied because the Division's own investigations revealed no actual harm,
either physical or emotional, to K.L.; (2) prong two satisfied because F.K. was
initially very responsive to the Division's substance abuse concerns, her
psychological evaluation revealed no significant disorders or impairments, and
she has demonstrated a willingness to mitigate any alleged harms posed to K.L.;
and (3) prong four satisfied because no bonding evaluation was conducted and
Division reports depict F.K.'s deep affection and genuine care for K.L.
J.L. argues the court improperly found: (1) prong one satisfied because
there was no evidence that J.L. caused any harm to his child and the Division
deemed defendants' home appropriate housing for K.L. in 2021; (2) prong two
A-1885-24 26 satisfied because J.L. indicated an intent to comply with treatment services
during his evaluation with Dr. Loving, and he failed to attend such services
based on his attorney's advice and his ongoing health issues; (3) prong three
satisfied because the Division required J.L. to attend hair follicle tests, urine
screens, and psychological evaluations in a county two hours away from
defendants, and ignored requests to relocate; and (4) prong four satisfied
because J.L. had a loving relationship with K.L., and the Division offered no
evidence or bonding evaluation to support finding termination would not exact
more harm than good.
III.
"Our review of a trial court decision in a termination of parental rights
case is limited." N.J. Div. of Child Prot. & Permanency v. T.D., 454 N.J. Super.
353, 379 (App. Div. 2018) (citing N.J. Div. of Youth & Fam. Servs. v. R.G., 217
N.J. 527, 552 (2014)). "In such cases, the trial court's factual findings should
be upheld when supported by adequate, substantial, and credible evidence."
Ibid. (quoting R.G., 217 N.J. at 552). Accordingly, we give substantial
deference to the trial court's opportunity to observe the witnesses first-hand and
to evaluate their credibility. R.G., 217 N.J. at 552.
Further, "appellate courts should accord deference to family court
A-1885-24 27 factfinding in recognition of the family courts' special jurisdiction and expertise
in family matters." N.J. Div. of Child Prot. & Permanency v. S.D., 453 N.J.
Super. 511, 518 (App. Div. 2018) (internal quotation marks omitted) (quoting
N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 365 (2017)). Thus,
the trial court's findings of fact are not disturbed 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 v. Cesare, 154
N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J.
474, 484 (1974)). "[T]he conclusions that logically flow from those findings of
fact are, likewise, entitled to deferential consideration upon appellate review."
N.J. Div. of Youth & Fam. Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div.
2006). However, "we review the trial court's legal interpretations de novo." N.J.
Div. of Child Prot. & Permanency v. D.A., 477 N.J. Super. 63, 80-81 (App. Div.
2023); see also R.G., 217 N.J. at 552.
Important constitutional and statutory considerations guide our
assessment of F.K.'s and J.L.'s arguments. "Parents have a constitutionally
protected right to maintain a relationship with their children." N.J. Div. of
Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007). That right, however,
"is not absolute" and limited "by the State's parens patriae responsibility to
A-1885-24 28 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 child
cannot be held prisoner of the rights of others, even those of his or her parents.
Children have their own rights, including the right to a permanent, safe and
stable placement." N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J. Super.
76, 111 (App. Div. 2004).
To terminate parental rights, the Division must prove, by clear and
convincing evidence, four requirements, under N.J.S.A. 30:4C-15.1(a). The
four-pronged inquiry "aims to achieve the appropriate balance between parental
rights and the State's parens patriae responsibility." M.M., 189 N.J. at 280.
N.J.S.A. 30:4C-15.1(a) provides, "The Division shall initiate a petition to
terminate parental rights on the grounds of the 'best interests of the child'" if the
following grounds are established:
(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;
A-1885-24 29 (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.
These four prongs "are not discrete and separate;" they overlap to inform a more
general inquiry that the termination of parental rights is in a child's best interests.
N.J. Div. of Child Prot. & Permanency v. R.L.M., 236 N.J. 123, 145 (2018).
"When a biological parent resists termination of his or her parental rights,
the [trial] court'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." R.L., 388 N.J. Super.
at 87. "[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).
A.
Here, both defendants challenge the trial court's finding under prong one
that K.L.'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). A judge
"need not wait . . . until a child is actually irreparably impaired by parental
A-1885-24 30 inattention or neglect." N.J. Div. of Child Prot. & Permanency v. D.H., 469 N.J.
Super. 107, 116 (App. Div. 2021) (quoting In re Guardianship of DMH., 161
N.J. 365, 383 (1999)). 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." In re Guardianship of K.H.O., 161 N.J.
337, 348 (1999). In addition, "a parent or guardian's past conduct can be
relevant and admissible in determining risk of harm to the child." N.J. Div. of
Youth & Fam. Servs. v. I.H.C., 415 N.J. Super. 551, 573 (App. Div. 2010).
"[T]he relevant inquiry focuses on the cumulative effect, over time, of
harms arising from the home life provided by the parent." M.M., 189 N.J. at
289. Although drug use, standing alone, is typically insufficient to prove the
first prong, N.J. Div. of Youth & Fam. Servs. v. V.Y., 423 N.J. Super. 320, 331-
32 (App. Div. 2011), 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, 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
A-1885-24 31 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 D.H., 469 N.J. Super. at 133-35 (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).
Here, the trial court's finding both defendants placed the child at future
risk of harm was grounded in the record. Both defendants admitted to serious
and prolonged substance abuse—specifically opioid use. Despite their denials,
repeated drug testing for months after K.L.'s removal substantiated their use of
fentanyl—a particularly dangerous substance as noted by the trial court. Given
defendants' history and positive drug-test results, J.L.'s losing consciousness and
relapsing, and other concerns, the court and the Division mandated drug screens,
evaluations, treatment, and parenting classes for both parents. However, over
the span of nearly two years from K.L.'s removal, neither parent complied.
Other than submitting to court-ordered psychological assessments, neither
defendant took steps to ameliorate or address the concerns their severe substance
abuse risked harm to their child.
A-1885-24 32 F.K. admitted to drug use while pregnant with K.L. and a long history of
substance abuse. She admitted to J.L.'s substance addiction and relapses,
requiring K.L. to reside with W.B. and J.B. just months after his birth. F.K.
underwent one substance abuse evaluation that recommended treatment, and Dr.
Gambone's assessment itemized necessary substance treatment and parenting
classes required for her to reunify with K.L. The court mandated treatment and
specific testing, but F.K. continuously failed to comply. She also denied her
substance use, claiming her tests were "false positives." She advised Dr. Loving
the home remained unsafe for K.L., and denied Division attempts to assess its
suitability.
J.L. similarly refused to comply throughout the length of the removal. He
admitted to Dr. Loving his conscious choice not to engage in services or
treatment. His history included reports that he lost consciousness while under
the influence; yet, he took no steps to address these issues, even after removal.
The record reflected both defendants participated in visitation with K.L.,
but even these visits engendered concern when Division workers reported both
defendants exhibited signs of drug use during the visits. The court credited Dr.
Loving's testimony defendants each demonstrated a "poor prognosis for change"
and presented an untenable risk to the child's safety. It also reasonably
A-1885-24 33 concluded the housing endangered K.L.'s safety based on F.K.'s admission the
home was unsuitable and defendants' refusal to allow the Division to assess the
conditions. We are not persuaded the Division's inspection of the trailer in 2021
undermined the court's conclusions. Nevertheless, we are satisfied the court's
conclusions related to defendants' drug use and utter noncompliance with
testing, services, and treatment sufficiently supported its finding of risk to the
child.
Against the backdrop of the Division records and the trial testimony, we
perceive no error in the court's finding the Division satisfied prong one, as to
both F.K. and J.L. by clear and convincing evidence.
B.
Both defendants similarly challenge the trial court's finding the Division
established they are "unwilling or unable to eliminate the harm facing the child
or . . . unable or unwilling to provide a safe and stable home for the child and
the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-
15.1(a)(2). This "second prong of the statutory standard relates to parental
unfitness." K.H.O., 161 N.J. at 352.
The Supreme Court has clarified the necessary proof to establish this
factor:
A-1885-24 34 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 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 DMH, 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.").
We have outlined in detail both F.K.'s and J.L.'s willful noncompliance,
even in the wake of their son's removal. Dr. Loving and the court found F.K.'s
A-1885-24 35 denials and excuses unbelievable, and both concluded she was unable or
unwilling to engage in the necessary interventions to support safe reunification.
Likewise, the court concurred with Dr. Loving that J.L. made no effort to
ameliorate concerns or risk. J.L.'s medical concerns arose a year after the child's
removal and failed to justify his inaction, which he confirmed to Dr. Loving was
his deliberate refusal to comply.
The record amply demonstrated defendants were aware of their
obligations to submit to drug screens and assessments and engage in services.
They were offered transportation and repeated opportunities to commence
cooperation with the Division's efforts. They thwarted efforts to inspect their
home. Further, W.B., in close proximity to defendants and aware of their history
and conduct, as well as the Division caseworker, testified defendants made no
efforts to address their issues. Thus, the court's finding both defendants were
unwilling or unable to eliminate their substance abuse issues and barriers to
reunification with their son was sufficiently supported in the record.
We recognize, as did the caseworker, Dr. Loving, and the trial court,
defendants both participated—although not without issues in both attendance
and behavior—in supervised visitation. However, we accept the trial court's
determination that this was but one piece of the best interests mosaic, far
A-1885-24 36 outweighed by defendants' overwhelming noncompliance as to all other material
concerns. Further, the court appropriately noted the visits sparked renewed
concerns of drug use by both defendants, which remained unaddressed, despite
Division efforts and the court's orders.
Further, we are satisfied the court sufficiently determined a "delay of
permanent placement will add to the harm" to K.L. N.J.S.A. 30:4C-15.1(a)(2).
The court noted that the matter had been in litigation for nearly two years, K.L.
needed a permanent placement, and the record demonstrated neither defendant
could care for their child with all of the outstanding concerns. Thus, we see no
error in the court's concluding prolonging permanent placement would add to
that harm.
C.
Under prong three, the standard is whether "[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 court
has considered alternatives to termination of parental rights." N.J.S.A. 30:4C-
15.1(a)(3). This consideration requires the Division to make "reasonable efforts
to provide services to help the parents correct the circumstances that led to the
child's placement outside the home." M.M., 189 N.J. at 281 (citing N.J.S.A.
A-1885-24 37 30:4C-15.1(a)(3)). "The Division's efforts on behalf of a parent are 'not
measured by their success.'" N.J. Div. of Youth & Fam. Servs. v. S.F., 392 N.J.
Super. 201, 212 (App. Div. 2007) (quoting DMH, 161 N.J. at 393) (finding the
Division engaged in reasonable efforts where it "provided substance abuse
evaluations, substance abuse referrals, psychological evaluations, daycare
assistance, transportation and facilitated the visitation between [defendant] and
her sons").
F.K. does not offer, and thus waived, any argument under N.J.S.A. 30:4C-
15.1(a)(3). See N.J. Dep't of Env't Prot. v. Alloway Twp., 438 N.J. Super. 501,
505-06 n.2 (App. Div. 2015) ("An issue that is not briefed is deemed waived
upon appeal."). Nonetheless, as we assess J.L.'s argument concerning this
prong, we find sufficient evidence in the record to support the trial court's
finding the Division made reasonable efforts to address both defendants' issues.
Here, we defer to the trial court's findings that logistics and transportation
did not present an impediment to the ample and extensive services offered to
both defendants by the Division throughout its involvement. Even as
termination and trial loomed, the court ordered testing and opportunities to
comply, but defendants took no steps to adhere to those orders or demonstrate
even minimal effort to engage. The sheer scope and duration of both defendants'
A-1885-24 38 failure to cooperate undermines defendants' attempts to shift blame for their
noncompliance or to tether their failures to specific events, providers, or
circumstances. We need not reiterate the pervasive noncompliance; it suffices
to conclude the trial court's findings were sufficiently supported by the record
and will not be disturbed.
Under the second part of prong three, the trial court is required to
"consider[] alternatives to termination of parental rights." N.J.S.A. 30:4C-
15.1(a)(3). We are satisfied, as was the trial court, W.B. and J.B. were advised
and understood the difference between the two permanency plans. W.B.'s
testimony, corroborated by Blocker, showed the resource parents were
"absolutely" committed to adoption and opposed to KLG. Given the discord and
history between defendants and W.B. and J.B., and safety concerns regarding
defendants, we find no error in the trial court's consideration and rejection of
KLG as alternative to termination.
D.
Finally, we similarly consider and reject both defendants' challenges to
the trial court's findings under prong four that termination of parental rights will
not do more harm than good. We recognize "the fourth prong 'serves as a fail-
safe against termination even where the remaining standards have been met.'"
A-1885-24 39 R.G., 217 N.J. at 559 (quoting N.J. Div. of Youth & Fam. Servs. v. E.P., 196
N.J. 88, 108 (2008)). "The question is 'not whether a [birth] 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.
(alteration in original) (quoting E.P., 196 N.J. at 108).
This analysis "cannot 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, . . . 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. Courts have "long considered a
child's relationship with the resource family . . . when [it] applie[s] the fourth
prong." N.J. Div. of Child Prot. & Permanency v. D.C.A., 256 N.J. 4, 23 (2023).
Both defendants argue the court's expedient and concise determination of
this factor was insufficient, and the lack of a bonding evaluation in this case
requires remand for an assessment regarding K.L.'s relative attachments to
defendants and his resource parents, W.B. and J.B. They argue the court fatally
failed to sufficiently consider their attachments to K.L., and his to them, and
never assessed the degree of harm termination would cause to K.L.
A-1885-24 40 Vital under prong four is consideration of "[a] child's need for
permanency." M.M., 189 N.J. at 281 (citing K.H.O., 161 N.J. at 357-58)
"Ultimately, a child has a right to live in a stable, nurturing environment and to
have the psychological security that his [or her] most deeply formed attachments
will not be shattered." F.M., 211 N.J. at 453. Critically, children should not
"languish indefinitely" in a resource placement while a parent attempts to correct
parenting difficulties. S.F., 392 N.J. Super. at 209.
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). Thus, although bonding
evaluations generally inform decisions involving the termination of parental
rights, N.J. Div. of Youth & Fam. Servs. v. A.R., 405 N.J. Super. 418, 436-37,
440 (App. Div. 2009), they are not compulsory when termination "[i]s not
predicated upon bonding, but rather reflect[s the child]'s need for permanency
and [the parent]'s inability to care for [the child] in the foreseeable future."
B.G.S., 291 N.J. Super. at 593.
Here, despite the absence of a bonding evaluation, we will not disturb the
trial court's findings. Dr. Loving opined, the record supported, and the court
accepted defendants were unable to care for their son, now or in the foreseeable
A-1885-24 41 future. Their documented drug abuse, positive fentanyl results, and two-year
failure to engage in or comply with court-ordered services amply supported the
expert determination they were unfit and unmotivated to address their deficits
that endangered their son.
We are not persuaded by defendants' arguments the record lacked support
for the court's finding K.L. would be less harmed and actually benefit from
permanent placement with his great aunt and uncle. It is undisputed W.B. and
J.B. cared for K.L. for well-over half of his young life. By all accounts he
thrived in their care, and defendants even designated these resource parents as
the appropriate caregivers upon K.L.'s removal. W.B. and the Division
caseworker testified about the bond between the resource parents and K.L., and
the court reasonably concluded permanent placement in their care would be in
K.L.'s best interest. Notably, K.L.'s affectionate visits with defendants were
acknowledged by the witnesses and the court, as was the harm that inheres when
parental rights are terminated. Thus, we are satisfied the court considered the
entirety of the record—namely the child's interactions with and attachment to
his biological parents—in concluding any harm from termination was
outweighed by the need for permanency.
We also note Dr. Loving's extensive risk assessment and psychological
A-1885-24 42 evaluation of defendants and review of Division records in reaching his opinion
defendants could not care safely for their son. The doctor noted the "positive
collateral input" as to the bond between K.L. and W.B. and J.B., which Blocker
and W.B. confirmed, but concluded, regardless, defendants were unfit and
should not be reunified with K.L. under any circumstances.
The court thus found these circumstances warranted termination
independent of the relative bonding of defendants and the resource parents with
the child, as the risk to the child if returned to defendants was simply too great.
It found K.L.'s need for permanency was strong after years of instability.
Accordingly, we conclude the court did not abuse its discretion in finding the
termination of defendants' parental rights would not exact more harm than good.
Affirmed.
A-1885-24 43