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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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 NOS. A-3392-24 A-3393-24
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
M.M. and P.D.,
Defendants-Appellants. ___________________________
IN THE MATTER OF THE GUARDIANSHIP OF L.S.D., a minor. ___________________________
Submitted May 13, 2026 – Decided June 9, 2026
Before Judges Paganelli and Vanek.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FG-19-0011-25. Jennifer N. Sellitti, Public Defender, attorney for appellants (Christine O. Saginor and Louis W. Skinner, Designated Counsel, on the joint briefs).
Jennifer Davenport, Attorney General, attorney for respondent (Janet Greenberg Cohen, Assistant Attorney General, of counsel; Michelle McBrian, Deputy Attorney General, on the brief).
Jennifer N. Sellitti, Public Defender, Law Guardian, attorney for minor (Meredith Alexis Pollock, Deputy Public Defender, of counsel; David B. Valentin, of counsel and on the brief).
PER CURIAM
In these consolidated matters, defendants M.M. (Mary) and P.D. (Peter)
appeal from a June 10, 2025 Family Part order terminating their parental rights
and granting plaintiff Division of Child Protection and Permanency (the
Division) guardianship of minor child, L.S.D. (Lily), with the plan that she be
adopted.1 Defendants argue the trial court erred in finding the Division had
proven by clear and convincing evidence the four prongs of the best -interests
test necessary for the termination of parental rights. See N.J.S.A. 30:4C-15.1(a).
The Division and Lily's law guardian contend the judgment is supported by
1 We refer to the parties in this case using initials and pseudonyms to protect their privacy and the confidentiality of these proceedings. R. 1:38-3(d)(12). A-3392-24 2 substantial evidence in the record. Having reviewed the record in light of the
parties' contentions and the applicable law, we affirm.
I.
The facts and evidence are detailed in Judge Michael Paul Wright's oral
decision setting forth his reasons for the June 10, 2025 order after a three-day
trial. Accordingly, we only summarize the salient facts necessary to provide
context for our opinion.
Defendants are the biological parents of Lily, now ten years old. The
Division became involved with the family in 2017 based on a report from Peter
that Mary was using drugs while Lily was in her care. Because Lily's needs
appeared to have been met, the Division closed the case.
The Division received additional referrals regarding Mary between 2017
and 2020, citing concerns for Lily's safety based on both defendants' substance
abuse and Mary's arrest on drug charges. In October 2019, the Division received
a referral concerning Mary's arrest for possession of heroin and drug
paraphernalia. The Division was unable to locate the family for several months.
On February 28, 2020, both parents were arrested on outstanding warrants. Peter
was incarcerated, Mary was released later that evening, and Lily was removed
from defendants' care and placed in a non-relative resource home. The court
A-3392-24 3 later upheld the removal, finding ongoing substance abuse concerns for both
parents and imminent risk to Lily's safety as a result.
The court ordered both parents to complete psychological and substance-
abuse evaluations, submit to random drug screens, and have their visitation
supervised. Upon release from custody, Peter tested positive for opiates,
cocaine, fentanyl, and suboxone. Mary tested positive for opiates, cocaine, and
fentanyl. Although the Division repeatedly referred both parents for services,
they delayed or failed to complete required treatment and evaluations.
In February 2021, the Center for Evaluation and Counseling issued a
report finding both parents required mental-health services, parenting-skills
development, and substance-abuse treatment, and further concluded their
outlook for compliance was poor. Peter admitted that when he used drugs,
"drugs c[a]me before anything," and acknowledged he had not consistently been
present for Lily during the years preceding her removal. Mary claimed she had
periods of sobriety and minimized the effect of her substance use on her
parenting.
The Division filed a guardianship complaint in March 2021. In July 2021,
Dr. Elizabeth Stilwell conducted psychological and bonding evaluations. Dr.
Stilwell concluded both parents had poor prognoses for change and expressed
A-3392-24 4 concern that Lily had developed insecure attachments because of the instability
she experienced in defendants' care. Although Lily maintained emotional
attachments to her parents, Dr. Stilwell opined those attachments were not
consistently healthy or development-promoting.
Mary continued to struggle with substance abuse throughout 2021 and
2022. She repeatedly tested positive for cocaine, fentanyl, and other substances,
failed to comply with intensive outpatient treatment, and declined individual
therapy intended to address underlying trauma and grief issues.
The first guardianship trial concluded in December 2021. In May 2022,
the court denied the Division's application to terminate parental rights, finding
the Division had not sufficiently explored alternatives to termination and
concluding termination at that time would cause significant harm to Lily.
Following the denial of guardianship, Peter began making progress. After
a March 2022 incarceration for violating probation, he entered treatment at
Damon House and later transitioned to Oxford House. He completed intensive
outpatient treatment through New Brunswick Counseling Center, maintained a
period of sobriety, obtained employment, and secured housing with the
Division's assistance. In February 2023, Dr. Stilwell updated her evaluations
and opined at that time she did not recommend termination because Peter had
A-3392-24 5 meaningfully engaged in treatment, Lily remained attached to her parents, and
there was no immediate alternative permanency option.
The court approved a reunification plan in April 2023. The Division
assisted Peter in obtaining an apartment and provided financial support for his
housing and furnishings. Lily was reunited with Peter on November 5, 2023.
The court's reunification order barred Peter from permitting Mary to be in
contact with Lily.
Mary, however, did not make comparable progress. She continued to use
heroin and crack cocaine throughout 2023, including while pregnant with
another child who demonstrated exposure to substances when tested at birth.
Mary remained unstable and failed to engage consistently with treatment or
visitation.
By March 2024, concerns regarding Peter's sobriety and parenting
resurfaced. Peter refused drug screens, Lily's school reported he appeared
intoxicated and slurred his speech, and Lily missed school and counseling
sessions. Peter admitted he had relapsed and tested positive for cocaine. The
Division also learned Peter had permitted Mary to have unauthorized contact
with Lily and had allowed Mary to stay overnight with them in violation of court
orders.
A-3392-24 6 When the Division attempted to locate Lily in March 2024, Peter initially
refused to disclose her whereabouts. Lily was eventually located at school. She
initially lied about Mary's presence because Peter had instructed her not to
disclose having contact with Mary, but later disclosed that Mary had been living
with her and Peter for approximately one month.
On March 15, 2024, the Division removed Lily for a second time. The
court upheld the removal, finding ongoing risk to Lily's safety and welfare.
After the second removal, Peter's condition deteriorated. He resumed
extensive substance abuse, repeatedly tested positive for cocaine, fentanyl,
morphine, marijuana, and other substances, failed to attend treatment despite
multiple Division referrals, and lost his housing and employment. Although the
Division arranged detox placements, transportation, temporary hotel
accommodations, and additional services, Peter repeatedly failed to appear for
admissions to substance abuse treatment. Mary similarly failed to stabilize. She
continued to use heroin and cocaine daily, remained homeless and unemployed,
refused or failed to follow through with treatment referrals, and inconsistently
attended visitation with Lily.
When defendants did attend visitation, the Division caseworkers became
concerned with their sobriety. For instance, they observed that Peter appeared
A-3392-24 7 sluggish and nodded off during visits. Because both parents tested positive for
fentanyl, the court ultimately modified the visitation plan to prohibit physical
Since February 2023, except during the brief period of reunification with
Peter, Lily has resided with resource parents, who have expressed a clear
commitment to adoption and an unwillingness to pursue kinship legal
guardianship (KLG). Throughout the litigation, the Division explored multiple
placements, including out-of-state relatives, but each was ruled out because the
proposed caregiver declined, was unsuitable, failed to obtain Interstate Compact
on the Placement of Children (ICPC) approval, or was otherwise determined not
to be in Lily's best interests.
The second guardianship trial occurred over three days in February and
March 2025. Neither defendant was present for trial and their whereabouts were
unknown. The court denied adjournment requests because defendants and their
counsel had notice of the trial dates and the Division had made extensive efforts
to remind defendants of trial and offered to transport them to court. Mary
ultimately appeared remotely from jail on June 6, 2025, when Judge Wright
issued his decision on the record.
A-3392-24 8 Neither Lily's law guardian nor defendants called witnesses at trial. The
Division called five Division caseworkers with historical knowledge of the
family and Dr. Elizabeth Stilwell, whom the judge qualified as an expert in
forensic psychology, attachment, bonding, and parental fitness. Judge Wright
found all the witnesses credible and their testimony largely unrebutted.
Dr. Stilwell testified Mary had made no meaningful progress toward
becoming a viable parenting option and remained unpredictable, emotionally
unstable, and unable to provide Lily with a secure attachment. Dr. Stilwell
further opined Peter's relapse following reunification, ongoing substance abu se,
housing instability, and inconsistent visitation demonstrated a poor prognosis
for safe parenting.
Dr. Stilwell also testified Lily displayed "fawning" behavior, which she
described as a trauma response developed in reaction to instability,
abandonment, and insecure attachments. Dr. Stilwell concluded Lily's most
secure attachments were with her resource parents and therapist and opined that
permanency through adoption would do more good than harm.
Prior to trial, Dr. Stilwell conducted a bonding evaluation between Lily
and her resource parents. They informed her that initially Lily was placed with
them prior to being reunified with Peter, and they stayed in contact with Lily
A-3392-24 9 while she was in Peter's care. They have cared for Lily for the past two years
since the Division re-placed her after the second removal. The resource parents
reported they were unwilling to consider KLG and were committed to adoption
but were amenable to continuing contact with Peter and other family post-
adoption so long as the relationships are healthy.
On June 6, 2025, the judge entered an order terminating defendants'
parental rights for the reasons set forth in its oral decision. Judge Wright
concluded the Division had proven all four prongs of the best-interests test by
clear and convincing evidence as to both parents. This appeal followed.
II.
The termination of parents' rights to raise their children is a matter of
constitutional magnitude. See In re Guardianship of K.H.O., 161 N.J. 337, 346
(1999). Those rights, however, are "not absolute" and are limited "by the State's
parens patriae responsibility to protect children whose vulnerable lives or
psychological well-being may have been harmed or may be seriously
endangered by a neglectful or abusive parent." N.J. Div. of Youth & Fam. Servs.
v. F.M., 211 N.J. 420, 447 (2012). "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). Our courts have
A-3392-24 10 acknowledged "the need for permanency of placements by placing limits on the
time for a birth parent to correct conditions in anticipation of reuniting with the
child." Ibid. Thus, a parent's interest must, at times, yield to the State's
obligation to protect children from harm. See N.J. Div. of Youth & Fam. Servs.
v. G.M., 198 N.J. 382, 397 (2009).
Consequently, the law requires a balancing of those two competing
interests: the parents' constitutionally protected right to raise their children
absent state interference, and the State's responsibility to protect the welfare of
children. N.J. Div. of Child Prot. & Permanency v. D.C.A., 256 N.J. 4, 20
(2023). That balancing "is achieved through the best interests of the child
standard." Ibid. (quoting K.H.O., 161 N.J. at 347). The Legislature codified
that standard in N.J.S.A. 30:4C-15.1(a). See id. at 21 (recognizing the
Legislature codified "the best[-]interests test" when it enacted N.J.S.A. 30:4C-
15.1(a)).
Thus, when seeking termination of parental rights, the Division must
establish, by clear and convincing evidence, the following four-prong criteria
set forth in N.J.S.A. 30:4C-15.1(a), as amended by the Legislature in 2021:
(1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship;
A-3392-24 11 (2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm;
(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement 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.
See N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 612 (1986)
(applying the clear-and-convincing standard in a parental-rights termination
case).
These four prongs "are not discrete and separate" but rather "overlap to
offer a full picture of the child's best interests." N.J. Div. of Youth & Fam.
Servs. v. R.G., 217 N.J. 527, 554 (2014). Indeed, "[t]he first two prongs [of the
best-interests test], N.J.S.A. 30:4C-15.1(a)(1) and (2), are 'the two components
of the harm requirement' and 'are related to one another.'" N.J. Div. of Child
Prot. & Permanency v. T.D., 454 N.J. Super. 353, 380 (App. Div. 2018) (quoting
In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999)). "Therefore, 'evidence
that supports one informs and may support the other as part of the
A-3392-24 12 comprehensive basis for determining the best interests of the child.'" Ibid.
(quoting D.M.H., 161 N.J. at 379).
We give substantial deference to the court's opportunity to have observed
the witnesses first-hand and to evaluate their credibility. R.G., 217 N.J. at 552.
The "general deference on appeal is also informed by the Family Part judge's
'feel of the case,'" N.J. Div. of Child Prot. & Permanency v. D.H., 469 N.J.
Super. 107, 116 (App. Div. 2021) (quoting N.J. Div. of Youth & Fam. Servs. v.
E.P., 196 N.J. 88, 104 (2008)), and by the Family Part's "special expertise in
matters related to the family," F.M., 211 N.J. at 448.
Accordingly, we defer to the court's factual findings "and uphold those
findings if they are grounded in substantial and credible evidence in the record."
D.C.A., 256 N.J. at 19. The court's decision should be reversed on appeal only
if its findings were "so wholly unsupportable as to result in a denial of justice."
N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting In
re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)); see also N.J. Div. of Child
Prot. & Permanency v. D.A., 477 N.J. Super. 63, 80 (App. Div. 2023).
We review the trial court's legal conclusions de novo. R.G., 217 N.J. at
552-53; see also D.C.A., 256 N.J. at 19 (acknowledging appellate courts give no
deference to the trial court's interpretation of N.J.S.A. 30:4C-15.1(a)).
A-3392-24 13 III.
Guided by these principles, we consider defendants' challenges to the
court's findings under each prong of the best-interests test.
Prong One
Under the first prong, "the Division must prove harm that 'threatens the
child's health and will likely have continuing deleterious effects on the child.'"
N.J. Dep't of Child. & Fams. v. A.L., 213 N.J. 1, 25 (2013) (quoting K.H.O.,
161 N.J. at 352). The Division need not "wait 'until a child is actually
irreparably impaired by parental inattention or neglect.'" F.M., 211 N.J. at 449
(quoting D.M.H., 161 N.J. at 383). "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). "When the condition
or behavior of a parent causes a risk of harm, such as impermanence of the
child's home and living conditions, and the parent is unwilling or incapable of
obtaining appropriate treatment for that condition," prong one is satisfied. N.J.
Div. of Youth & Fam. Servs. v. H.R., 431 N.J. Super. 212, 223 (App. Div. 2013).
The requisite harm is also established by a parent's withdrawal of nurture and
care for an extended period of time. D.M.H., 161 N.J. at 379. Additionally,
"[a]lthough drug use alone is not enough to show harm, 'guardianship cases . . .
A-3392-24 14 often address long-term problems that affect a child's welfare.'" H.R., 431 N.J.
Super. at 221-22 (omission in original) (quoting A.L., 213 N.J. at 24-25).
In considering prong one, Judge Wright found defendants had caused two
removals that resulted in demonstrable psychological harm to Lily, including
the "fawning" behavior credibly described by Dr. Stillwell. The judge
concluded Lily had been denied the stability and safety necessary for healthy
psychological and emotional growth.
Regarding Mary specifically, the judge determined she had "struggled
with unaddressed substance misuse since the time of [Lily's] original removal in
2020." The judge credited testimony from the Division's witnesses that Mary
had not engaged in treatment once during the five years since Lily's removal,
had failed to achieve any period of sobriety, had limited contact with the
Division and only sporadically attended visitation, with a year-long absence in
2023. The judge noted that Dr. Stilwell could not complete a psychological
evaluation because of Mary's disengagement—she curled up in a ball, slept, and
would not keep her eyes open for more than a few seconds. Judge Wright noted
further that Mary had told caseworkers she did not want reunification and
instead hoped Peter would reunify so she could remain in contact with Lil y,
implying Mary did not consider herself a placement option. The judge accepted
A-3392-24 15 Dr. Stilwell's opinion that Mary was not an appropriate parent and had made no
progress toward becoming one. Thus, Judge Wright concluded the Division had
provided clear and convincing evidence to establish prong one as to Mary.
Regarding Peter, the judge recognized his prior progress with substance
abuse treatment but found that after his relapse and Lily's second removal in
March 2024, Peter failed to complete any treatment program and continued
testing positive for substances. The judge noted the Division's efforts to
transport Peter to the Straight and Narrow program and Peter's failure to appear.
The judge further cited Dr. Stilwell's testimony explaining Peter could not be
evaluated because he was falling asleep and his visitation with Lily was
sporadic.
Substantial credible evidence supports the judge's findings under prong
one as to both defendants. The record reflects Mary continued using substances
daily well into 2024 and either declined or abandoned treatment opportunities.
Dr. Stilwell's testimony established Mary remained emotionally unstable,
unpredictable, and unable to provide Lily with a secure attachment or a safe
parenting environment.
Peter admitted he relapsed in March 2024 and thereafter tested positive
for cocaine, fentanyl, morphine, marijuana, and other substances on multiple
A-3392-24 16 occasions. The judge also credited testimony that Peter appeared impaired
during visitation and evaluations, lost stable housing and employment, and
failed to attend admissions appointments for treatment despite extensive
Division assistance. The judge's conclusion that Lily's safety and development
remained endangered by Peter's inability to maintain sobriety and stability after
reunification was thus supported by substantial credible evidence in the record.
See H.R., 431 N.J. Super. at 223 (recognizing harm may arise where a parent is
unwilling or incapable of obtaining appropriate treatment for a condition
causing instability and impermanence).
We are unpersuaded by Mary's argument that the judge's finding of harm
to Lily was based on substance abuse alone. Judge Wright found the instability
threatening Lily derived from Mary's longstanding and untreated substance
abuse, but neither that condition nor Mary's homelessness or poverty alone
comprised the harm required under prong one. On the contrary, it was
instability, lack of permanency, and psychological harm manifested in Lily's
"fawning" behavior that the judge identified as the direct harm under prong one.
For the same reason, we reject Peter's argument that the judge's finding as to
him was based solely on homelessness, poverty, or incarceration.
A-3392-24 17 We reject Peter's contention that the judge impermissibly relied solely on
Dr. Stillwell's testimony for his conclusion on prong one. Judge Wright also
relied on extensive documentary evidence and caseworkers' testimony, all of
which he found credibly corroborated Peter's continued substance abuse and
instability.
In sum, the judge's finding that prong one was satisfied because
defendants' parental relationship endangered Lily is supported by the record.
Prong Two
Under prong two, "the inquiry centers on whether the parent is able to
remove the danger facing the child." F.M., 211 N.J. at 451; see also D.C.A.,
256 N.J. at 27 (finding prong two as amended was intended "to ensure that
parental fitness—not the child's bond with resource parents—is the core inquiry
when a judge considers the best[-]interests standard's second prong in a
termination of parental rights case").
Judge Wright found the Division repeatedly offered Mary services, but
apart from supervised visits, she refused to engage. The judge determined Mary
had failed to achieve any sobriety and failed to participate in substance abuse
treatment.
A-3392-24 18 Although Mary had limited, positive interactions with Lily, the judge
noted she could not address her substance use or consistently attend supervised
visits. Mary was present and positive during bonding evaluations with Lily, but
once Lily was gone, Mary presented differently, "almost as if a switch was
flipped." According to Dr. Stilwell's testimony, Mary could "pull it together at
least for a short time." The judge determined Mary did not want reunification
because she expected to have a relationship with Lily through Peter.
We discern no basis to disturb the judge's findings on prong two as to
Mary. The judge accepted Dr. Stilwell's testimony that Mary was unpredictable
and would not provide a healthy or secure bond with Lily. Judge Wright
concluded it was highly unlikely that, after five years, Mary's behavior would
change.
Mary argues the judge improperly relied on her ongoing substance use
without sufficiently considering the underlying trauma associated with her
childhood experiences and her mother's death. Contrary to the record, Mary
further contends she continued to express interest in treatment and maintained a
loving relationship with Lily. However, the judge's finding under prong two is
supported by the record. Although Mary occasionally expressed interest in
treatment, Judge Wright found she consistently failed to follow through with
A-3392-24 19 services, failed to achieve sobriety, disengaged from visitation for extended
periods, and remained unable to provide permanency or stability for Lily.
In analyzing prong two as to Peter, the judge concluded based on Peter's
conduct before the second removal and throughout the subsequent litigation that
he was not a safe and stable parent and was unlikely to become one in the
foreseeable future. The judge found that after the second removal Peter
expressed interest in substance abuse treatment but did not actually attend a
program and repeatedly delayed treatment. The judge noted visitation with Lily
had to be delayed in 2024 because of his positive fentanyl test. The judge further
found Peter was still testing positive for fentanyl and heroin as of February 2025.
Thus, Judge Wright credited Dr. Stilwell's testimony that there was a low
likelihood Peter would become a viable parent.
Peter argues the judge failed to sufficiently consider his successful
reunification with Lily and contends his relapse should not outweigh the
substantial progress he made after the first guardianship trial. We reject this
argument. Judge Wright recognized Peter's historical reunification efforts but
emphasized that since Lily's second removal, Peter has failed to take meaningful
steps toward achieving sobriety and stability. "We have made it clear that
'[c]hildren must not languish indefinitely in foster care while a birth parent
A-3392-24 20 attempts to correct the conditions that resulted in an out-of-home placement.'"
N.J. Div. of Youth & Fam. Servs. v. L.J.D., 428 N.J. Super. 451, 483-84 (App
Div. 2012) (alteration in original) (quoting N.J. Div. of Youth & Fam. Servs. v.
S.F., 392 N.J. Super. 201, 210 (App. Div. 2007)).
The judge also properly considered Lily's need for permanency. See
K.H.O., 161 N.J. at 357-58. At the time of trial, Lily had experienced years of
instability, two removals, a failed reunification, and prolonged uncertainty
regarding permanency. The judge found further delay in permanency
"unconscionable," contrary to Lily's right to permanency, and likely to cause
further harm.
In sum, we discern no error in Judge Wright's finding that defendants
remained unable to eliminate the harm facing Lily and delaying permanency
further would compound the harm she has already suffered.
Prong Three
Prong three, N.J.S.A. 30:4C-15.1(a)(3), requires the Division to make
"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 to "consider[] alternatives to termination of parental rights." As to the first
part of prong three, the reasonableness of the Division's efforts is not
A-3392-24 21 conditioned on their success. L.J.D., 428 N.J. Super. at 488. The success or
failure of the Division's efforts will "not foreclose a finding that the Division
met its statutory burden to try to reunify the children with the family." Ibid.
(quoting N.J. Div. of Youth & Fam. Servs. v. F.H., 389 N.J. Super. 576, 620
(App. Div. 2007)). "Experience tells us that even [the Division]'s best efforts
may not be sufficient to salvage a parental relationship." F.M., 211 N.J. at 452.
As to the second part of the third prong, the Division must "prove by clear
and convincing evidence that 'alternatives to termination of parental rights' have
been appropriately considered." N.J. Div. of Youth & Fam. Servs. v. J.S., 433
N.J. Super. 69, 87 (App. Div. 2013) (quoting N.J.S.A. 30:4C-15.1(a)(3)).
Under prong three, the judge found the Division made reasonable efforts
to provide services to both parents and considered alternatives to termination.
As to Mary, the judge found the trial testimony established Division caseworkers
had tried "over and over" to engage Mary in substance abuse treatment, and
offered housing assistance, therapeutic supervised visits, transportation to
evaluations, visitation and court, along with financial assistance. As to Peter,
the judge observed the Division had offered largely the same services and
acknowledged he had at one point completed services that led to reunification.
The judge noted Peter initially failed to engage, but that changed in March 2022,
A-3392-24 22 after which he undertook what Judge Wright described as "heroic participation
in service and a steady climb to sobriety and reunification." However, the judge
concluded that after reunification Peter could not maintain sobriety while
managing the stress of parenting. The judge also recognized services were
provided to Lily, including visits to the resource home, therapy, and pediatric
medical services.
Regarding alternatives to termination, the judge noted the Division
reached out to maternal and paternal family members for potential placement,
but they were ruled out, and another family member had declined placement
because of Lily's connection to her current resource parents. Judge Wright
determined the resource parents were not interested in KLG and would only
adopt.
Mary argues the Division failed to provide services adequately addressing
the underlying trauma contributing to her substance abuse and further contends
the judge improperly favored adoption over KLG without sufficient evidence
the resource parents made an informed choice. Peter similarly argues the
Division's efforts were unreasonable and contends the judge improperly favored
adoption over KLG. We find no merit in these arguments.
A-3392-24 23 The Division was required to make reasonable efforts. See L.J.D., 428
N.J. Super. at 487-88. Substantial credible evidence supports the judge's finding
that the Division made extensive and reasonable efforts to assist Mary.
Throughout the litigation, the Division provided or arranged for substance-abuse
evaluations, inpatient and outpatient treatment referrals, therapy referrals,
transportation assistance, visitation, psychological evaluations, and engaged in
repeated outreach efforts. The Division also discussed therapy related to Mary's
trauma and grief, but Mary declined those services.
The record demonstrates the Division provided Peter with extensive
services over several years, including substance-abuse evaluations, inpatient and
outpatient treatment referrals, sober-living assistance, rental and housing
support, transportation, visitation, and hotel accommodations to facilitate
treatment admissions. Those efforts initially succeeded in reunifying Peter with
Lily. The fact that reunification later failed does not render the Division's efforts
unreasonable. See L.J.D., 428 N.J. Super. at 488. Rather, the record supports
Judge Wright's conclusion that after Peter's relapse he repeatedly failed to avail
himself of any further Division-offered services.
The judge also determined the Division had considered alternatives to
termination. The record reflects the Division assessed multiple relatives for
A-3392-24 24 placement, including interstate options, and revisited KLG after the first
guardianship trial. However, relatives either declined placement, failed to
obtain ICPC approval, withdrew from consideration, or were otherwise
determined unsuitable.
Mary argues Lily's maternal grandparents and maternal aunt, who reside
in Florida, were ruled out on the basis of a wrongfully administered ICPC. See
N.J.S.A. 9:23-5, art. VIII, subd. (a) (exempting grandparents and aunt and uncle
placements from the ICPC process). Because Mary did not raise this argument
before the trial court, we review for plain error. See R. 2:10-2 ("Any error or
omission shall be disregarded by the appellate court unless it is of such a nature
as to have been clearly capable of producing an unjust result.").
We are unconvinced the judge's decision regarding prong three was
plainly erroneous based on the wrongful administration of the ICPC. Regardless
of the results of the ICPC process, the relatives were ruled out based on their
assertions they were unable to serve as Lily's caregivers and preference Lily
reside with her resource parents, who facilitated contact with them. Mary
contends the relatives' responses could have been tainted by "the misperception
that [their] involvement with [Lily] would be fraught with procedural
requirements." We decline to conclude this speculative assertion is plain error.
A-3392-24 25 Mary's argument is also belied by the relatives' responses to the Division's
inquiry, including the statement by Lily's maternal aunt that she "is at the right
place with [the resource parents]," and that neither her nor Lily's maternal
grandparents could care for Lily, because the aunt had five children of her own
and the grandparents were "very sick."
Peter argues the judge erred by elevating adoption over KLG as a
preferred placement option when recent amendments to the best-interests, KLG,
and removal statutes reflect the Legislature's intent to preserve the parent-child
relationship wherever possible. See D.C.A., 256 N.J. at 23-26 (discussing the
2021 amendments). We disagree. While Peter is correct that the Legislature's
"objective [was] to promote kinship caregivers and preserve family bonds," id.
at 27, it selected a discrete means of achieving that goal, namely modification
of one prong of the best-interests test, not wholesale preference for KLG over
adoption. The limited impact of the amendments on the best-interests test is to
require consideration of a child's bond with their resource parents under prong
four, rather than prong two. See id. at 28.
Here, in its prong three analysis, the judge appropriately considered both
KLG and adoption and concluded the latter represented the only viable
permanency path for Lily under the circumstances. The resource parents
A-3392-24 26 expressed an informed unwillingness to pursue KLG, and the judge properly
credited testimony establishing Lily required permanency and stability after
enduring years of uncertainty. The judge did not treat adoption as presumptively
preferable but instead concluded the permanency offered by adoption best
served Lily's interests.
Prong Four
Prong four, N.J.S.A. 30:4C-15.1(a)(4), "serves as a fail-safe against
termination even where the remaining standards have been met." N.J. Div. of
Youth & Fam. Servs. v. G.L., 191 N.J. 596, 609 (2007). "The question
ultimately is not whether a biological mother or father is a worthy parent, but
whether a child's interest will best be served by completely terminating the
child's relationship with th[e] parent." E.P., 196 N.J. at 108. In making that
determination, the court may consider evidence regarding the bond between the
child and the resource parents. See D.C.A., 256 N.J. at 28 (holding the 2021
amendment to N.J.S.A. 30:4C-15.1(a) "precludes a court from considering the
bond between a child and resource parents under the second prong of the
best[-]interests standard but does not bar such evidence when the court addresses
that standard's fourth prong").
A-3392-24 27 Under prong four, Judge Wright found termination would not do more
harm than good. The judge stated "the material, relevant, and credible proofs
offered at trial[] established clearly and convincingly that [Lily's] best chance at
a safe and nurtured childhood requires termination of parental rights for both
parents." The judge emphasized that "[t]he overriding consideration under
prong four is the child's need for permanency," and Lily had been denied
permanency for five years.
As to Peter, the judge found that although Lily loves her father, his
inability to maintain sobriety while handling the stressors of parenting made it
impossible for him to provide the permanency to which Lily was legally entitled.
As to Mary, the judge found Lily had only an insecure attachment to her mother
and that Mary's refusal to engage in services left her unviable as a parent. Judge
Wright further explained that Lily was doing well in her resource parents' care
and was engaged in therapy to address psychological harm caused by
defendants. The judge credited Dr. Stilwell's opinion that the resource parents
could mitigate harm from termination of her insecure parental relationships with
her biological parents.
Mary argues the judge relied too heavily on Dr. Stilwell's testimony and
failed to give sufficient consideration to evidence demonstrating she loved Lily
A-3392-24 28 and maintained affectionate interactions with her. Mary contends "[t]ermination
of parental rights is an extreme outcome that should be reserved for instances
where the evidence clearly and convincingly shows maintaining the parent-child
relationship is of no possible benefit to the child." Thus, in light of a record of
affectionate supervised interaction with Lily, Mary maintains the judge's
conclusion was against the weight of the evidence.
On this point, Mary misstates the law. The inquiry under prong four is
"whether a child's interest will best be served by completely terminating the
child's relationship with that parent." E.P., 196 N.J. at 108. The Division is not
obligated to show the parental relationship confers "no possible benefit to the
child." On the contrary, where a parent "has been unable to remediate the danger
to the child, and when the child has bonded with foster parents who have
provided a nurturing and safe home . . . [the] termination of parental rights likely
will not do more harm than good." Ibid.
Here, the judge credited Dr. Stilwell's testimony that, although Lily
maintained affection for Mary, the relationship was insecure. Dr. Stilwell
further testified Lily's years of instability contributed to trauma-related
emotional harm and that Lily's strongest and healthiest attachments were with
her resource parents. Further, the record demonstrates Lily's resource parents
A-3392-24 29 were committed to adoption and declined KLG. This represents substantial
credible evidence that maintenance of Mary's parental rights, resulting in
continued impermanency would ultimately cause more harm than good.
We are unconvinced by Peter's argument the judge conducted a simple
"better-off" analysis under the fourth prong when the statute calls instead for a
focus on the "harm that would befall Lily her if her relationship with Peter
[were] terminated." Peter maintains the harm would be considerable given the
demonstrable bond between Lily and her father.
Judge Wright did not misapply the law under prong four. Instead, the
judge recognized the importance of Lily's need for permanency—rightfully a
"central factor" in the court's determination, K.H.O., 161 N.J. at 357—and found
Peter was unable to provide that permanency. The judge recognized Peter's
relationship with Lily and the harm that may ensue from termination but
determined that any harm could be ameliorated by the resource parents. We are
satisfied this conclusion is supported by substantial credible evidence in the
record.
Affirmed.
A-3392-24 30