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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0284-16T3
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
N.M.S.,
Defendant-Appellant. _________________________________
IN THE MATTER OF THE GUARDIANSHIP OF C.P.V. JR.,
A Minor. _________________________________
Submitted October 17, 2017 – Decided December 5, 2017
Before Judges Yannotti, Leone, and Mawla.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-0046-14.
Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the brief).
Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christina Duclos, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian (Margo E.K. Hirsch, Designated Counsel, on the brief).
PER CURIAM
Defendant N.M.S. (Mother) appeals from an August 9, 2016
judgment entered by the Family Part, terminating her parental
rights to C.P.V., Jr. (the child). She challenges only whether
termination will not do more harm than good. We affirm.
I.
We summarize the facts set forth in the August 9, 2016 opinion
of Judge Joseph L. Foster. In July 2007, the child was born to
Mother and C.P.V., Sr. (Father).1 Mother is an alcoholic with
mental health issues. During her pregnancy with the child, Mother
abused alcohol. As a result, the child was born prematurely with
fetal alcohol syndrome and other special needs. The child was
removed at birth and placed in custody of the Division of Youth
and Family Services, since renamed the Division of Child Protection
and Permanency (collectively "the Division"). After Mother
1 Father was incarcerated when the child was born, and frequently thereafter. He surrendered his parental rights to the child, and has not appealed. Accordingly, we will discuss only Mother and the child.
2 A-0284-16T3 received services and improved, the child was returned to her
custody in May 2009.
Mother soon relapsed into alcohol abuse and stopped attending
mental health services. In September 2011, the four-year-old
child was found wandering the street while Mother was passed out
drunk, and the Division removed the child for the second time.
After Mother received services and improved, the child was returned
to her custody in January 2013.
Mother again relapsed into alcohol abuse and stopped
attending mental health services. In November 2013, the child had
bruises and marks on his head after the six-year-old used scissors
to cut his own hair, Mother was drinking in the home which was in
deplorable condition, and the child was removed for the third time
due to Mother's drinking and neglect.
In November 2014, Mother was drinking during visitation,
tested positive for alcohol, and was arrested for DWI. She
continued to abuse alcohol throughout 2015, and repeatedly failed
to attend and comply with mental health services. She showed
improvement in 2016.
At the 2016 guardianship trial, the Division's expert, Dr.
David Brandwein, testified that Mother's alcohol abuse and mental
health traits were "a veritable recipe for child neglect," that
she had "a recurring pattern" of treatment and relapse, and that
3 A-0284-16T3 she would relapse again and could not change. Dr. Brandwein
testified that reunion with Mother followed by a fourth removal
would cause the child "a psychological blow" that would "exceed
his capacity for resiliency" and lead to a reaction from which the
child "would most likely never recover." The trial court agreed
that, given Mother's history, "[i]t would be inappropriate to risk
the well-being of [the child] by accepting the pledge of [Mother]
that this time [it would be] 'different.'"
Dr. Brandwein did three bonding evaluations with Mother and
the child in 2014, 2015, and 2016. He found the initially strong,
affectionate bond between them weakened significantly, with Mother
becoming less engaged, the child more remote, and the bond less
secure. The nine-year-old said he liked visits with Mother, but
did not want to live with her. Dr. Brandwein testified that
termination of their relationship would not result in enduring
harm and could be addressed by counseling.
Dr. Brandwein opined that "the option that was going to be
less harmful to [the child] would be to terminate [Mother's]
parental rights and free him for select home adoption." The trial
court agreed the harm of termination "pales in comparison to the
'intense psychological reaction that [the child] would experience
if he were to remain in a state of limbo.'"
4 A-0284-16T3 Throughout most of his three removals, the child resided with
the same foster parent. In November 2015, he was removed from
that foster parent after he stood on a younger child and threatened
to stab the child. He was placed in a therapeutic treatment home
to address his special needs.
The Division's adoption specialist, Christen Clayton,
described the child as "a lovely little boy" with many qualities
which would help him get adopted. She testified the Division's
plan was select home adoption followed by location of a permanent
adoption family. She testified termination would increase the
child's adoptability because once a child is legally free for
adoption, the child can be registered on state and national
exchanges, can attend match events, and can be adopted in other
states and in several additional homes in New Jersey. She
testified that recently children with similar or worse concerns
had been adopted. Both she and caseworker Mary Campbell testified
they were confident the Division would be able to find a permanent
adoptive home for the child.
During trial, the child was moved from one therapeutic home
to another after the eight-year-old scratched and threatened to
kill a younger child. Campbell testified she still believed
Mother's rights should be terminated so the child could be adopted.
5 A-0284-16T3 The trial court found Mother's "persistent history of
substance abuse, relapse, and failure to adequately address her
mental instability . . . had caused [the child] to suffer profound
harm." As a result, the child had spent "approximately two-thirds
of his life in the custody of the Division." Mother was "unable
to and unwilling to eliminate the harm" and "to provide a safe and
stable home for" the child and "the delay in permanent placement
will add to the harm." The Division made more than reasonable
efforts, providing Mother long- and short-term inpatient and
intensive outpatient substance abuse programs, Alcoholic
Anonymous, mental health programs, and other services.
In considering the fourth prong, the trial court recognized
"[t]he difficulty here is that [the child] has not been placed in
a home which is committed to adopting him." The court credited
Dr. Brandwein, Clayton, and Campbell, and found that "termination
of parental rights will give [the child] his last best chance for
having permanency in his life and will do more good than harm."
The court ordered the termination of parental rights.
The trial court found termination of Mother's parental rights
was in the best interests of the child and was supported by each
prong of the four-prong test outlined in N.J.S.A. 30:4C-15.1(a).
Mother appeals the decision of the trial court, arguing that clear
and convincing evidence does not support a finding that termination
6 A-0284-16T3 will do more harm than good under the fourth prong of N.J.S.A.
30:4C-15.1(a).
II.
"A parent's right to enjoy a relationship with his or her
child is constitutionally protected." In re Guardianship of
K.H.O., 161 N.J. 337, 346 (1999). However, this protection "is
tempered by the State's parens patriae responsibility to protect
the welfare of children." Id. at 347; see N.J.S.A. 30:4C-1(a).
Under Title Thirty, the Division must prove by clear and
convincing evidence that termination of parental rights is in the
best interests of the child. N.J. Div. of Youth & Family Servs.
v. F.M., 211 N.J. 420, 447 (2012); see N.J.S.A. 30:4C-15(c). The
Division must show that:
(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 in unable or unwilling to provide a safe and stable home for the child and the delay of permanent will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has
7 A-0284-16T3 considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
"Appellate review of a trial court's decision to terminate
parental rights is limited[.]" In re Guardianship of J.N.H., 172
N.J. 440, 472 (2002). We must determine whether the court's
decision "is supported by 'substantial and credible evidence on
the record.'" F.M., supra, 211 N.J. at 448. "We ordinarily defer
to the factual findings of the trial court because it has the
opportunity to make first-hand credibility judgments about the
witnesses who appear on the stand; it has a 'feel of the case'
that can never be realized by a review of the cold record." N.J.
Div. of Youth Servs. v. E.P., 196 N.J. 88, 104 (2008). "Particular
deference is afforded to family court fact-finding because of the
family courts' special jurisdiction and expertise in family
matters." N.J. Div. of Child Prot. & Permanency v. N.C.M., 438
N.J. Super. 356, 367 (App. Div. 2014) (citing Cesare v. Cesare,
154 N.J. 394, 413 (1998)). Thus, "[w]e will not overturn a family
court's factfindings unless they are so 'wide of the mark' that
our intervention is necessary to correct an injustice." F.M.,
supra, 211 N.J. at 448 (citations omitted). We must hew to our
deferential standard of review.
8 A-0284-16T3 On appeal, Mother challenges only the trial court's finding
on the fourth prong. Applying our standard of review, we affirm
substantially for the reasons given in the opinion of Judge Foster
on August 9, 2016. We add the following.
III.
The fourth prong "serves as a fail-safe against termination
even where the remaining standards have been met." N.J. Div. of
Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). "[T]he
fourth prong of the test for terminating parental rights requires
that [the Division] prove by clear and convincing evidence that
'[t]ermination of parental rights will not do more harm than
good.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145,
180-81 (2010) (quoting N.J.S.A. 30:4C-15.1(a)(4)).
Normally, "[t]he question to be addressed under that prong
is whether, after considering and balancing the two relationships,
the child will suffer a greater harm from the termination of ties
with [his] natural parents than from permanent disruption of [his]
relationship with [his] foster parents." Id. at 181 (citation
omitted). "The 'good' done to a child in such cases in which
reunification is improbable is permanent placement with a loving
family." E.P., supra, 196 N.J. at 108.
However, where the child has no foster parent waiting to take
custody of the child, the question is "whether a child's interest
9 A-0284-16T3 will best be served by completely terminating the child's
relationship with that parent." Id. at 108. In that situation,
one potential good is that termination will increase the child's
availability or opportunity for permanent placement.
In the seminal case of N.J. Div. of Youth & Family Servs. v.
A.W., 103 N.J. 591 (1986), our Supreme Court articulated the four-
prong test later codified in N.J.S.A. 30:4C-15.1(a). Regarding
the fourth prong, the Court noted, "[s]ome have suggested that
'[a] decision to terminate parental rights should not simply
extinguish an unsuccessful parent-child relationship without
making provision for . . . a more promising relationship . . .
[in] the child's future[.]'" Id. at 610 (quoting Orman W. Ketcham
& Richard F. Babcock, Jr., Statutory Standards for the Involuntary
Termination of Parental Rights, 29 Rutgers L. Rev. 530, 542-43
(1976)) (alterations in original). "Indeed, the detriment may be
greater than keeping the parent-child relationship intact since
the child's psychological and emotional bond to the parent may
have been broken with nothing substituted in its place." Id. at
611 (quoting In re Angelia P., 623 P.2d 198, 210 (1981) (Bird,
C.J., concurring and dissenting)).
The Supreme Court in A.W. did not forbid termination when the
Division has not yet formulated a permanency plan distinguishing
a person willing and able to adopt the child. Rather, it
10 A-0284-16T3 instructed that, because a "child deeply needs association with a
nurturing adult," and "permanence in itself is an important part
of that nurture, a court must carefully weigh that aspect of the
child's life" and "consider the permanency plan." Id. at 610.
Moreover, the Supreme Court recognized "there will be
circumstances when the termination of parental rights must precede
the permanency plan. A multiply-handicapped child or a young
adolescent might not be adoptable at the time of the termination
proceedings." Id. at 611. Here, the child has special needs and
behavioral issues that complicate his adoption. Nonetheless, the
child was able to live successfully for the better part of six
years with a foster mother intending to adopt until difficulties
arose. The Court in A.W. also recognized that difficulties with
foster parents and unsuccessful placements "are the inevitable
consequence of temporary living arrangements." Id. at 614.
The Supreme Court returned to this issue in E.P. The Court
reiterated A.W.'s concern that "terminating parental rights
without any compensable benefit, such as adoption, may do great
harm to a child." E.P., supra, 196 N.J. at 108 (citing A.W.,
supra, 103 N.J. at 610-11). The Court noted literature stating
that "too many children 'freed up' for adoption do not in the end
find permanent homes." Id. at 109 (quoting In re Guardianship of
J.C., 120 N.J. 1, 21 (1992) (quoting Robert Borgman, Antecedents
11 A-0284-16T3 and Consequences of Parental Rights Termination for Abused and
Neglected Children, 60 Child Welfare 391, 392, 402 (1981))).
"In the unique circumstances" of E.P., the Supreme Court
ruled the "parent-child relationship that continued to provide
emotional sustenance to [E.P.'s] child should not have been severed
based on the unlikely promise of a permanent adoptive home." Id.
at 114. Those unique circumstances are not present here. Judge
Foster's opinion sets forth numerous key factual differences that
distinguish E.P. from this case, including the much stronger
relationship between E.P. and her daughter Andrea, and Andrea's
desperate, near-suicidal opposition to adoption.
We note additional differences which further distinguish E.P.
First, E.P. and Andrea had never been reunited, and Andrea and the
law guardian fervently sought reunification. Id. at 93-96, 106.
Here, there have been two failed reunifications, the child in the
final evaluation did not want reunification, and the Law Guardian
supports termination of Mother's parental rights. "[T]he Law
Guardian's position [is] of particular significance because . . .
she has to advocate for the best interests of the child too young
to speak for himself, and represents neither adversary in the
case." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super.
418, 433 (App. Div. 2009).
12 A-0284-16T3 Second, in E.P., the family court found "that completely
severing the mother-daughter ties would be 'extremely painful' and
even 'devastating' to Andrea." E.P., supra, 196 N.J. at 110.
Here, the trial court credited Dr. Brandwein's testimony that
termination "'would not have an enduring impact on'" the child,
and that it was reunification followed by "the 'inevitable' fourth
removal [which] 'would be psychological devastating' to" the
child.
Third, in E.P., the Division's adoption specialist testified
"older foster children are more difficult to place," the family
court found it was "highly questionable" that Andrea would ever
find a permanent home with a foster family, and the Supreme Court
stressed Andrea was almost thirteen years old. Id. at 98, 109-
10. Here, there was no such testimony or finding, and the child
was only nine-years-old at the time of the trial.
Next, Mother points out that Dr. Brandwein and adoption
specialist Clayton testified before the child scratched and
threatened to kill a younger child. Mother argues that Dr.
Brandwein and Clayton may have altered their optimistic testimony
in light of the child's new violent incident.
However, the child had stood on and threatened to stab a
younger child before Dr. Brandwein and Clayton testified, and they
nonetheless testified the best course was termination for
13 A-0284-16T3 adoption, preferably by a foster parent with no younger children.
The child's second outburst was inconsistent with Clayton's view
"that he was no longer displaying aggressive conduct," but it did
not necessarily change the remainder of their testimony. Mother
did not seek to recall Clayton (or Dr. Brandwein) to see if it
would change the testimony that the nine-year-old could be adopted.
Instead, Mother merely speculates Clayton's testimony (and Dr.
Brandwein's) "might well have been tempered." Such speculation
is not evidence.
Indeed, when caseworker Campbell was recalled after the
scratching incident, she reiterated her belief it was in the best
interests of the child to terminate parental rights and seek
adoption. The trial court properly could rely on her testimony.
In any event, the trial court, which was well aware of the
scratching incident, nevertheless choose to credit the prior
testimony from Clayton and Dr. Brandwein. "[R]eviewing courts
should defer to the trial court's credibility determinations."
N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552
(2014). That testimony, together with the testimony of Campbell
and others, provided clear and convincing evidence supporting
termination. "Applying our limited standard of review to the
careful judgment that the trial court fairly exercised in weighing
the fact-sensitive considerations here under the fourth prong,"
14 A-0284-16T3 we see no reason to upset the court's determination. N.J. Div.
of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 93 (App.
Div. 2013) (citing J.N.H., supra, 172 N.J. at 472).
Mother also argues the trial court incorrectly weighed the
harm of termination against the harm of reunification. Mother
notes that a decision to decline to terminate parental rights does
not mean Mother will be reunified with the child. Mother points
out that the court must balance the harm of termination against
the increased prospect of adoption.
However, we see no indication the court did not perform that
balancing. Mother points to its quotation of Dr. Brandwein's
testimony about the devastating harm from another failed
reunification and removal, but that harm was a valid consideration
for both the expert and the court. In the end, the court properly
found that there was clear and convincing evidence that termination
would not do more harm than the good of freeing the child for
adoption.
Lastly, Mother argues this case should be remanded, like
E.P., supra. However, the Court remanded in E.P. solely "[b]ased
on a failure of proof on prong four." Supra, 196 N.J. at 111.
15 A-0284-16T3 Here, unlike E.P., we have found no such failure.2 Moreover, as
set forth above, this case is unlike E.P. In particular, E.P. had
an "unlikely possibility of permanency in the future." Ibid.
Here, the trial court found the child has an opportunity for
adoption, particularly once termination makes the child free for
adoption. An unjustified remand would only delay and impede the
child's opportunity.
To support remand, Mother cites N.J. Div. of Youth & Family
Servs. v. T.S., 417 N.J. Super. 228 (App. Div. 2010). However,
there we vacated and remanded because of "unusual" and "significant
post-trial circumstances," namely post-trial progress by M.S.'s
mother; M.S.'s new, strong desire to see her mother; an attempted
sexual assault against M.S. "in [her] foster placement, which may
present safety issues and has not been scrutinized by the court,"
and a change in position by M.S.'s law guardian based largely on
those new developments. Id. at 232, 243, 246-49. No such post-
trial developments have occurred here.
We noted in T.S., "[a]dditionally, the child had not secured
a permanent placement," but we stated that was less significant
than M.S.'s change in position. Id. at 247. We did not imply
2 Nor did the trial court "rel[y] on inappropriate factors in reaching its determination," the basis for remand in A.W., supra, 103 N.J. at 617 (reversing the denial of termination and remanding for "reconsider[ation] by a new fact-finder").
16 A-0284-16T3 delay in a permanent placement alone would justify remand. See
id. at 249 ("We do not intend to suggest that any and all post-
trial changes warrant another look at the evidence presented at
trial to support a final judgment terminating parental rights.").
Here, even assuming such delay has occurred, it is not a basis to
vacate a valid judgment. Cf. J.N.H., supra, 172 N.J. at 479
(remanding because the family court had insufficient evidence to
decide a Rule 4:50 motion).
Mother argues postponing termination would allow her to have
contact with the child while he awaits adoption.3 However, Dr.
Brandwein testified "the course of action that would be the most
harm for [the child] is keeping him in limbo" without freeing him
for adoption. After nine years, three failed reunifications, and
a fourth removal three years ago, the child has been in limbo long
enough. See N.J. Div. of Youth & Family Servs. v. L.J.D., 428
N.J. Super. 451, 484 (App. Div. 2012) ("'Keeping the child in
limbo, hoping for some long term unification plan, would be a
misapplication of the law.'" (citation omitted)).
Affirmed.
3 We note the trial court denied Mother's request for visitation pending appeal.
17 A-0284-16T3