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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3664-18T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
M.O.,
Defendant,
and
T.S.,
Defendant-Appellant. _____________________________
IN THE MATTER OF THE GUARDIANSHIP OF A.O.S. and A.O.S.,
Minors. _____________________________
Submitted January 13, 2020 – Decided January 21, 2020
Before Judges Fasciale and Moynihan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-0053-18.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert A. Veasey, Deputy Public Defender, of counsel; Anastasia P. Winslow, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Sookie Bae, Assistant Attorney General, of counsel; Sandra L. Ostwald, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Joseph Hector Ruiz, Designated Counsel, on the brief).
PER CURIAM
Defendant T.S. (the mother) appeals from an April 10, 2019 order
terminating her parental rights to Am.O.S. (Amilia) and Ar.O.S. (Ariel) (the
children), twin daughters with special needs born in 2017, and awarding
guardianship in favor of the Division of Child Protection and Permanency (the
Division).1 Judge Jane Gallina-Mecca presided over the trial, entered the
judgment, and rendered a seventy-page written opinion.
The mother, who did not attend trial or produce any evidence, raises the
following arguments:
1 Pseudonyms are used to protect the children's privacy. R. 1:38-3(d)(12). A-3664-18T2 2 POINT [I]
THIS COURT SHOULD EXERCISE DE NOVO REVIEW TO RULE THE [JUDGE] ERRED IN CONCLUDING THAT [THE DIVISION] PROVED ALL FOUR PRONGS OF N.J.S.A. 30:4C-15.1(A) BY CLEAR AND CONVINCING EVIDENCE AS THE [JUDGE] RELIED PRIMARILY UPON A PAPER RECORD.
POINT [II]
THE [JUDGE] ERRED IN RULING THAT [THE DIVISION] PROVED PRONG ONE OF N.J.S.A. 30:4C-15.1(A) BY CLEAR AND CONVINCING EVIDENCE AS THERE WAS NOT SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD THAT [THE MOTHER] HARMED HER CHILDREN AND [THE DIVISION'S] EXPERT REPORTS CONFIRMED SHE DID NOT POSE AN IMMINENT RISK OF HARM TO THEM.
POINT [III] THE [JUDGE] ERRED IN RULING THAT [THE DIVISION] PROVED, BY CLEAR AND CONVINCING EVIDENCE, THAT [THE MOTHER] IS UNABLE OR UNWILLING TO ELIMINATE ANY HARM FACING THE CHILDREN OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILDREN UNDER PRONG TWO OF N.J.S.A. 30:4C-15.1(A) AS [THE DIVISION] EXPERT REPORTS ALL STATED [THE MOTHER] COULD PARENT THE CHILDREN.
POINT [IV]
THE [JUDGE] ERRED IN RULING THAT [THE DIVISION] PROVED PRONG THREE OF N.J.S.A.
A-3664-18T2 3 30:4C-15.1(A) BY CLEAR AND CONVINCING EVIDENCE BECAUSE [THE DIVISION'S] EFFORTS IN PROVIDING SERVICES TO [THE MOTHER] WERE SHOCKINGLY DEFICIENT.
A. The record reflects that [the Division] did not heed expert recommendations for services, ignored [the mother's] pleas for help, erected obstacles to [the mother's] reunification, and repeatedly took the position that [the mother's] adolescent case was closed while it violated its own policies as to adolescent case closure and provision of services for homeless youth.
B. The [judge] further erred in ruling there were no alternatives to termination.
POINT [V]
THE [JUDGE] ERRED IN RULING THAT [THE DIVISION] PROVED PRONG FOUR OF N.J.S.A. 30:4C-15.1(A) BY CLEAR AND CONVINCING EVIDENCE AS THE [JUDGE] LOOKED ONLY TO THE QUANTITY OF TIME [THE MOTHER] SPENT WITH THE [CHILDREN] DURING HER PERIOD OF HOMELESSNESS RATHER THAN LOOKING TO THE COMPLETE RECORD AND THE QUALITY OF HER BOND.
We disagree and affirm.2
2 We have also reviewed and considered the mother's reply brief dated December 2, 2019. A-3664-18T2 4 I.
We begin our discussion with the well-settled legal framework regarding
the termination of parental rights. Parents have a constitutionally protected right
to the care, custody, and control of their children. Santosky v. Kramer, 455 U.S.
745, 753 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999).
However, that right is not absolute. N.J. Div. of Youth & Family Servs. v. R.G.,
217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.
591, 599 (1986). At times, a parent's interest must yield to the State's obligation
to protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M., 198
N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To
effectuate these concerns, the Legislature created a test to determine when it is
in the child's best interest to terminate parental rights. To secure parental
termination, N.J.S.A. 30:4C-15.1(a) requires the Division to prove by clear and
convincing evidence the following four prongs:
(1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from [her] resource family parents would cause
A-3664-18T2 5 serious and enduring emotional or psychological harm to the child;
(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the [judge] has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
See also A.W., 103 N.J. at 604-11. The four prongs of the test are not "discrete
and separate," but "relate to and overlap with one another to provide a
comprehensive standard that identifies a child's best interests." K.H.O., 161 N.J.
at 348. "The considerations involved in determinations of parental fitness are
'extremely fact sensitive' and require particularized evidence that address the
specific circumstances in the given case." Ibid. (quoting In re Adoption of
Children by L.A.S., 134 N.J. 127, 139 (1993)).
Our review of a family judge's factual findings is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). "When a biological parent resists termination
of his or her parental rights, the [judge's] function is to decide whether that
parent has the capacity to eliminate any harm the child may already have
suffered, and whether that parent can raise the child without inflicting any
further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81,
A-3664-18T2 6 87 (App. Div. 2006). The factual findings that support such a judgment "should
not be disturbed unless 'they are so wholly insupportable as to result in a denial
of justice,' and should be upheld whenever they are 'supported by adequate,
substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super.
172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co.
of Am., 65 N.J. 474, 483-84 (1974)).
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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-3664-18T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
M.O.,
Defendant,
and
T.S.,
Defendant-Appellant. _____________________________
IN THE MATTER OF THE GUARDIANSHIP OF A.O.S. and A.O.S.,
Minors. _____________________________
Submitted January 13, 2020 – Decided January 21, 2020
Before Judges Fasciale and Moynihan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-0053-18.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert A. Veasey, Deputy Public Defender, of counsel; Anastasia P. Winslow, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Sookie Bae, Assistant Attorney General, of counsel; Sandra L. Ostwald, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Joseph Hector Ruiz, Designated Counsel, on the brief).
PER CURIAM
Defendant T.S. (the mother) appeals from an April 10, 2019 order
terminating her parental rights to Am.O.S. (Amilia) and Ar.O.S. (Ariel) (the
children), twin daughters with special needs born in 2017, and awarding
guardianship in favor of the Division of Child Protection and Permanency (the
Division).1 Judge Jane Gallina-Mecca presided over the trial, entered the
judgment, and rendered a seventy-page written opinion.
The mother, who did not attend trial or produce any evidence, raises the
following arguments:
1 Pseudonyms are used to protect the children's privacy. R. 1:38-3(d)(12). A-3664-18T2 2 POINT [I]
THIS COURT SHOULD EXERCISE DE NOVO REVIEW TO RULE THE [JUDGE] ERRED IN CONCLUDING THAT [THE DIVISION] PROVED ALL FOUR PRONGS OF N.J.S.A. 30:4C-15.1(A) BY CLEAR AND CONVINCING EVIDENCE AS THE [JUDGE] RELIED PRIMARILY UPON A PAPER RECORD.
POINT [II]
THE [JUDGE] ERRED IN RULING THAT [THE DIVISION] PROVED PRONG ONE OF N.J.S.A. 30:4C-15.1(A) BY CLEAR AND CONVINCING EVIDENCE AS THERE WAS NOT SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD THAT [THE MOTHER] HARMED HER CHILDREN AND [THE DIVISION'S] EXPERT REPORTS CONFIRMED SHE DID NOT POSE AN IMMINENT RISK OF HARM TO THEM.
POINT [III] THE [JUDGE] ERRED IN RULING THAT [THE DIVISION] PROVED, BY CLEAR AND CONVINCING EVIDENCE, THAT [THE MOTHER] IS UNABLE OR UNWILLING TO ELIMINATE ANY HARM FACING THE CHILDREN OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILDREN UNDER PRONG TWO OF N.J.S.A. 30:4C-15.1(A) AS [THE DIVISION] EXPERT REPORTS ALL STATED [THE MOTHER] COULD PARENT THE CHILDREN.
POINT [IV]
THE [JUDGE] ERRED IN RULING THAT [THE DIVISION] PROVED PRONG THREE OF N.J.S.A.
A-3664-18T2 3 30:4C-15.1(A) BY CLEAR AND CONVINCING EVIDENCE BECAUSE [THE DIVISION'S] EFFORTS IN PROVIDING SERVICES TO [THE MOTHER] WERE SHOCKINGLY DEFICIENT.
A. The record reflects that [the Division] did not heed expert recommendations for services, ignored [the mother's] pleas for help, erected obstacles to [the mother's] reunification, and repeatedly took the position that [the mother's] adolescent case was closed while it violated its own policies as to adolescent case closure and provision of services for homeless youth.
B. The [judge] further erred in ruling there were no alternatives to termination.
POINT [V]
THE [JUDGE] ERRED IN RULING THAT [THE DIVISION] PROVED PRONG FOUR OF N.J.S.A. 30:4C-15.1(A) BY CLEAR AND CONVINCING EVIDENCE AS THE [JUDGE] LOOKED ONLY TO THE QUANTITY OF TIME [THE MOTHER] SPENT WITH THE [CHILDREN] DURING HER PERIOD OF HOMELESSNESS RATHER THAN LOOKING TO THE COMPLETE RECORD AND THE QUALITY OF HER BOND.
We disagree and affirm.2
2 We have also reviewed and considered the mother's reply brief dated December 2, 2019. A-3664-18T2 4 I.
We begin our discussion with the well-settled legal framework regarding
the termination of parental rights. Parents have a constitutionally protected right
to the care, custody, and control of their children. Santosky v. Kramer, 455 U.S.
745, 753 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999).
However, that right is not absolute. N.J. Div. of Youth & Family Servs. v. R.G.,
217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.
591, 599 (1986). At times, a parent's interest must yield to the State's obligation
to protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M., 198
N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To
effectuate these concerns, the Legislature created a test to determine when it is
in the child's best interest to terminate parental rights. To secure parental
termination, N.J.S.A. 30:4C-15.1(a) requires the Division to prove by clear and
convincing evidence the following four prongs:
(1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from [her] resource family parents would cause
A-3664-18T2 5 serious and enduring emotional or psychological harm to the child;
(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the [judge] has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
See also A.W., 103 N.J. at 604-11. The four prongs of the test are not "discrete
and separate," but "relate to and overlap with one another to provide a
comprehensive standard that identifies a child's best interests." K.H.O., 161 N.J.
at 348. "The considerations involved in determinations of parental fitness are
'extremely fact sensitive' and require particularized evidence that address the
specific circumstances in the given case." Ibid. (quoting In re Adoption of
Children by L.A.S., 134 N.J. 127, 139 (1993)).
Our review of a family judge's factual findings is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). "When a biological parent resists termination
of his or her parental rights, the [judge's] function is to decide whether that
parent has the capacity to eliminate any harm the child may already have
suffered, and whether that parent can raise the child without inflicting any
further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81,
A-3664-18T2 6 87 (App. Div. 2006). The factual findings that support such a judgment "should
not be disturbed unless 'they are so wholly insupportable as to result in a denial
of justice,' and should be upheld whenever they are 'supported by adequate,
substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super.
172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co.
of Am., 65 N.J. 474, 483-84 (1974)). "[T]he conclusions that logically flow
from those findings of fact are, likewise, entitled to deferential consideration
upon appellate review." R.L., 388 N.J. Super. at 89.
II.
We now turn to the mother's argument that the judge erred in finding that
the Division proved each of the four prongs under the best interests test by clear
and convincing evidence. We disagree with her contentions, and as to the four
prongs, we affirm substantially for the reasons given by the judge. We add the
following.
A.
The first prong requires the Division to prove that "[t]he child's safety,
health, or development has been or will continue to be endangered by the
parental relationship[.]" N.J.S.A. 30:4C-15.1(a)(1). "Although a particularly
egregious single harm can trigger the standard, the focus is on the effect of harms
A-3664-18T2 7 arising from the parent-child relationship over time on the child's health and
development." K.H.O., 161 N.J. at 348. "[T]he attention and concern of a caring
family is 'the most precious of all resources.'" In re Guardianship of D.M.H.,
161 N.J. 365, 379 (1999) (quoting A.W., 103 N.J. at 613). "[W]ithdrawal of
. . . solicitude, nurture, and care for an extended period of time is in itself
a harm that endangers the health and development of the child." Ibid.
The judge found that the children's health and development were
endangered by the mother's "substance abuse, untreated mental health issues,
and instability." After the children were born prematurely, the mother led a
transient lifestyle, moving from shelter to shelter, and as the judge noted, "[h]er
untreated mental health issues caused her to disrupt her housing situation[,]
moving the medically challenged infants from place to place." The judge found
that she further harmed the children by not maintaining consistent visitation with
them since their removal, thereby depriving them of a parent-child relationship.
B.
The second prong of the best interests test requires the Division to present
clear and convincing evidence that "[t]he parent 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." N.J.S.A. 30:4C-15.1(a)(2). The relevant
A-3664-18T2 8 inquiries for the judge are whether the parent cured and overcame the initial
harm that endangered the child, and whether the parent is able to continue the
parental relationship without recurrent harm to the child. K.H.O., 161 N.J. at
348-49. To satisfy its burden, the Division must show continued harm to the
child because the parent is unable or unwilling to remove or overcome the harm.
N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 483 (App.
Div. 2012). The first and second prongs are related, and often, "evidence that
supports one informs and may support the other as part of the comprehensive
basis for determining the best interests of the child." D.M.H., 161 N.J. at 379.
"Parental unfitness may also be demonstrated if the parent has failed to
provide a 'safe and stable home for the child' and a 'delay in permanent
placement' will further harm the child." K.H.O., 161 N.J. at 352 (quoting
N.J.S.A. 30:4C-15.1(a)(2)). "Keeping [a] child in limbo, hoping for some long
term unification plan, would be a misapplication of the law." N.J. Div. of Youth
& Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001).
As to prong two, the judge found that the mother is unable to achieve
sustained compliance with services, complete substance abuse treatment, and
maintain stable housing. The judge found that the mother is incapable of safely
A-3664-18T2 9 parenting the children due to her lack of stable housing and her failure to address
her mental health and substance abuse issues.
C.
As to 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[.]" The judge
found that the Division provided defendants with a plethora of services, which
we need not repeat here.
The judge found the Division consistently and repeatedly made referrals
and offered services to assist the mother, who was herself previously in the
Division's care as a minor. After she turned eighteen, the Division continued to
provide services, while the mother was still pregnant. It arranged for
psychological evaluations, homemaker services, psychiatric evaluations,
domestic violence treatment, housing at Rainbow House (where she was
discharged for failure to cooperate with the program), substance abuse
treatment, and transportation for visitation, among other services. The judge
also found there were no alternatives to termination of parental rights. The
A-3664-18T2 10 Division explored family members in and out of New Jersey who were ruled out
as possible placement options.
D.
The fourth prong of the best interests test requires a determination that the
termination of parental rights "will not do more harm than good." N.J.S.A.
30:4C-15.1(a)(4). The judge must ask whether "after considering and balancing
the two relationships, the child will suffer a greater harm from the termination
of ties with her natural parents than from the permanent disruption of her
relationship with her foster parents." K.H.O, 161 N.J. at 355. This prong
"cannot require a showing that no harm will befall the child as a result of the
severing of biological ties." Ibid. "The overriding consideration under this
prong remains the child's need for permanency and stability." L.J.D., 428 N.J.
Super. at 491-92. "Ultimately, a child has a right to live in a stable, nurturing
environment and to have the psychological security that [her] most deeply
formed attachments will not be shattered." N.J. Div. of Youth & Family Servs.
v. F.M., 211 N.J. 420, 453 (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 & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004).
A-3664-18T2 11 As to the fourth prong, the judge concluded that the uncontroverted
evidence demonstrated that termination of parental rights would not do more
harm than good. The judge determined that the children needed permanency,
which can be achieved with the resource parents. Relying on expert testimony,
the judge found that the resource parents are the children's central parental love
and identification figures. The children perceive the resource parents as their
psychological parents, and they can meet the children's special needs⸺for
example, one of the children suffers from torticollis and requires physical and
occupational therapy and developmental intervention, and receives treatment by
an orthopedist, craniologist, gastroenterologist, and physiatrist. The judge
found the resource parents meet the physical and emotional needs of the
children, and they provide the children the love and nurture that they need to
flourish.
Affirmed.
A-3664-18T2 12