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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2267-18T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
T.D.W.1,
Defendant-Appellant,
and
A.G., JR.,
Defendant. _____________________________
IN THE MATTER OF THE GUARDIANSHIP OF A.C.W.,
a Minor. _____________________________
1 We utilize the parties' initials to assure confidentiality pursuant to Rule 1:38(d). Submitted January 7, 2020 – Decided February 11, 2020
Before Judges Hoffman and Firko.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-0042-18.
Joseph E. Krakora, Public Defender, attorney for appellant (Robyn A. Veasey, Deputy Public Defender, of counsel; Gilbert G. Miller, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Donna Sue Arons, Assistant Attorney General, of counsel; Joshua Paul Bohn, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Danielle Ruiz, Designated Counsel, on the brief).
PER CURIAM
T.D.W. appeals from a January 11, 2019 Family Part order terminating
her parental rights to A.C.W. born in February 2017. We affirm.
I.
T.D.W. is the biological mother of A.C.W. 2 T.D.W. has a long history
with the Division of Child Protection and Permanency (Division). Prior to
2 A.C.W.'s father, A.G., surrendered his parental rights on October 22, 2018 to A.C.W.'s resource parent, A.C., and has not appealed.
A-2267-18T2 2 A.C.W.'s birth, T.D.W. lost custody of another child. She has substance abuse
and mental health issues, and she has been unable to maintain safe and stable
housing. The Division conducted a Dodd3 removal of A.C.W. at birth because
A.C.W. tested positive for cannabis.
T.D.W. was living with Martin 4 when A.C.W. was born. Martin was on
probation, after serving several years in prison, and claimed to be drug free. His
criminal record was significant for a criminal sexual assault conviction of a
female, burglary, aggravated assault, domestic violence, and drug offenses. The
Division made efforts towards reunification but ultimately filed a complaint
seeking termination of T.D.W.'s parental rights, with A.C.W.'s adoption by
A.C., her non-relative resource parent with whom she had been placed since
May 2017.
The guardianship trial commenced in November 2018. We discern the
following facts from evidence adduced at trial.
3 A "Dodd removal" refers to the emergency removal of a child without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. 4 We use a pseudonym for Martin to protect the privacy of the parties and for ease of reference. A-2267-18T2 3 T.D.W. was diagnosed with bipolar disorder and depression. In May
2017, she expressed suicidal ideation, suffered a severe panic attack, and was
non-compliant with taking her medications. On May 8, 2017, T.D.W. was taken
to the Helene Fuld Clinic for evaluation and treatment and on May 28, 2017, she
was referred to a program at the Children's Home Society to address substance
abuse, mental health, and parental fitness.
T.D.W. inconsistently attended individual and group counseling, and she
was denied entry into a substance abuse treatment program, referred to her by
the Division, for failing to attend her intake appointment. In June 2017, Dr.
Jeffrey B. Allen, T.D.W.'s therapist, advised the Division that T.D.W.'s
motivation decreased, she was increasingly disorganized, and returned to self -
medicating with marijuana. She was referred for individual counseling with a
different therapist, therapeutic visits and parenting classes. In August 2017,
T.D.W. was admitted to Rescue Mission of Trenton for substance abuse
treatment and counseling.
In January 2018, T.D.W. was terminated from Oaks Integrated because of
her noncompliance. The record shows T.D.W. never received substance abuse
treatment at Oaks Integrated even though she claimed she had. On January 24,
A-2267-18T2 4 2018, the court determined that the Division's change in goal from reunification
to adoption for A.C.W. was appropriate.
On February 23, 2018, T.D.W. was evaluated by Dr. David R. Brandwein
to determine whether any mental condition would impact or impair her ability
to parent A.C.W. Dr. Brandwein noted that T.D.W. was "exposed to a number
of aversive childhood experiences . . . [which] have clearly led to negative
outcomes in adulthood for [T.D.W.], including housing problems, substance-
related problems, mental health difficulties, and difficulties with romantic
relationships." In conclusion, Dr. Brandwein opined that T.D.W. could not meet
the child's needs, and T.D.W. was cohabiting with an individual with a
significant criminal history who could not participate in a reunification plan.
Dr. Brandwein did not endorse T.D.W. as a caregiver for A.C.W. presently or
in the foreseeable future.
On March 15, 2018, the Division filed a verified complaint for
guardianship of A.C.W. Thereafter, T.D.W.'s visits with A.C.W. were sparse,
and T.D.W. ceased making herself available to the Division. In August 2018,
T.D.W. was terminated from a court mandated program for not attending and
complying with services. She continued to resist meeting with her caseworker
A-2267-18T2 5 and chose to live with Martin despite having the financial ability to live
independently.
On October 22, 2018, Dr. Brandwein conducted a bonding evaluation
between T.D.W. and A.C.W. and noted the child had no reaction to seeing her
mother during the session. Dr. Brandwein reported that A.C.W. does not depend
on T.D.W. to fulfill parental functions and "much of [T.D.W.'s] life has been
characterized by levels of psychological and personal instability that are
anathema to raising children." Ultimately, Dr. Brandwein recommended
permanent placement of A.C.W. with her resource mother, A.C.
The guardianship trial was conducted over five days. Two Division
caseworkers, Dr. Brandwein, and T.D.W. testified. Following the conclusion of
the trial, the judge issued a sixty-eight-page written opinion finding that the
caseworkers and Dr. Brandwein were credible witnesses. The court also found
T.D.W. "is simply unwilling or unable to eliminate the harm facing [A.C.W.]
and is unable or unwilling to provide a safe and stable home for the child." The
court rejected T.D.W.'s testimony as not credible as it pertained to her personal
relationship with Martin.
The court determined that "the Division has satisfied each prong of the
best interests of the child standard . . . by clear and convincing evidence," under
A-2267-18T2 6 N.J.S.A. 30:4C-15.1, and entered an order terminating T.D.W.'s parental rights
and awarding guardianship to the Division. This appeal followed.
II.
The scope of our review on an appeal from an order terminating parental
rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605
(2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We will
uphold a trial judge's factfindings if they are "supported by adequate,
substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G.,
217 N.J. 527, 552 (2014) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196
N.J. 88, 104 (2008)). No deference is given to the court's "interpretation of the
law," which is reviewed de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012)
(citing N.J. Div. of Youth & Family Servs. v I.S., 202 N.J. 145, 183 (2010);
Balsamides v. Protameen Chems., 160 N.J. 352, 372 (1999)).
We "accord deference to factfindings of the family court because it has
the superior ability to gauge the credibility of the witnesses who testify before
it and because it possesses special expertise in matters related to the family."
N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing
Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Only when the trial court's
conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate
A-2267-18T2 7 court intervene and make its own findings to ensure that there is not a denial of
justice." E.P., 196 N.J. at 104 (quoting G.L., 191 N.J. at 605.) We also accord
deference to the judge's credibility determinations "based upon his or her
opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs.
v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing Cesare, 154 N.J. at 411-
13).
When considering a petition for the termination of parental rights, the
court focuses on the "best interests of the child standard" and may grant the
petition when the four prongs set forth in N.J.S.A. 30:4C-15.1(a) are established
by clear and convincing evidence. In re Guardianship of K.H.O., 161 N.J. 337,
347 (1999). "The four criteria enumerated in the best interests standard are not
discrete and separate; they relate to and overlap with one another to provide a
comprehensive standard that identifies a child's best interests." Id. at 348.
T.D.W. contends there was insufficient evidence supporting the court's
findings on each of the four prongs and the court incorrectly applied the
principles governing the termination of parental rights. After reviewing
T.D.W.'s arguments in light of the record and applicable legal principles, we are
convinced that there is substantial credible evidence supporting the court's
findings of fact and determination that the Division established by clear and
A-2267-18T2 8 convincing evidence under N.J.S.A. 30:4C-15.1(a) that it was in A.C.W.'s best
interests to terminate T.D.W.'s parental rights. We note, however, the following.
A. Prong One
The first prong of the best interests of the child standard requires the
Division to establish that "[t]he child's safety, health or development has been
or will continue to be endangered by the parental relationship. . . ." N.J.S.A.
30:4C-15.1(a)(1). "[T]he Division must prove harm that 'threatens the child's
health and will likely have continuing deleterious effects on the child.'" N.J.
Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 25 (2013) (quoting K.H.O.,
161 N.J. at 352).
We are not persuaded by T.D.W.'s argument that she never impaired
A.C.W.'s health and development, and there was no evidence that Martin did not
currently pose a risk to A.C.W. Further, we reject T.D.W.'s argument that she
improved her parenting skills and complied with services.
The focus under the first prong is not on any "single or isolated harm," but
rather on "the effect of harms arising from the parent-child relationship over
time on the child's health and development." K.H.O., 161 N.J. at 348 (citing
N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986)). The
harm may be established by "a delay in establishing a stable and permanent
A-2267-18T2 9 home." In re Guardianship of DMH, 161 N.J. 365, 383 (1999). "A parent's
withdrawal of . . . solicitude, nurture, and care for an extended period of time is
in itself a harm that endangers the health and development of the child." Id. at
379 (citing K.H.O., 161 N.J. at 352-54). Additionally, a parent's "persistent
failure to perform any parenting functions and to provide . . . support for [the
child] . . . constitutes a parental harm to that child arising out of the parental
relationship [that is] cognizable under N.J.S.A. 30:4C-15.1(a)(1) and (2)." Id.
at 380-81 (citing K.H.O., 161 N.J. at 352-54).
We are satisfied there is substantial credible evidence supporting the
court's finding under the first prong of the best interests of the child standard,
N.J.S.A. 30:4C-15.1(a)(1), that T.D.W. caused harm to A.C.W. because the
child tested positive for marijuana at birth, and T.D.W.'s inconsistent visits,
inability to secure stable housing, failure to comply with court-ordered services,
continued relationship and cohabitation with Martin, and unwillingness to make
herself available to the Division, endangered A.C.W.'s safety, health and
development.
Contrary to T.D.W.'s assertion, the court's finding of harm was not based
upon a "jumbled and cryptic" recitation of Martin's criminal offenses. T.D.W.
contended Martin was a "positive support" for her. The credible evidence
A-2267-18T2 10 established that T.D.W. did not comprehend the danger Martin posed to
A.C.W.'s safety based upon his extensive criminal history. The court aptly noted
that T.D.W. delayed finding her own housing appropriate for reunification with
A.C.W.
Moreover, the credible evidence in the record shows that T.D.W. believed
A.C.W. tested positive for marijuana because T.D.W. "did not drink enough
water to get the drugs out of her system." T.D.W. has never accepted
responsibility for her actions and was non-compliant with taking her
medications. She failed to undergo random urine drug screen testing and a hair
follicle test as directed by the Division. In June 2018, T.D.W. missed over a
month of visits with A.C.W. because "her boyfriend was in the hospital" and she
was "very busy."
We are therefore convinced that the court had substantial credible
evidence supporting its finding of harm. The evidence supports the court's
conclusion that T.D.W. will never achieve sufficient personal or psychological
stability necessary to parent A.C.W. The court correctly found that the Division
established harm under the first prong of the best interests standard.
A-2267-18T2 11 B. Prong Two
The second prong relates to parental unfitness and requires the Division
to prove that 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] [s]uch harm may include evidence that separating the child from his
[or her] resource family parents would cause serious and enduring emotional or
psychological harm to the child. . . ." N.J.S.A. 30:4C-15.1(a)(2). In analyzing
the second prong as it relates to harm, courts are permitted to consider evidence
presented pertaining to the first prong, which also deals with harm. DMH, 161
N.J. at 379. The focus is "whether it is reasonably foreseeable that the parents
can cease to inflict harm upon the children entrusted to their care." A.W., 103
N.J. at 607.
T.D.W. argues that the second prong of the best interests standard is not
relevant because A.C.W. did not suffer harm under prong one, and therefore,
there could be no finding of harm under prong two. We disagree. As noted, the
court's finding of harm under the first prong of the standard was supported by
substantial credible evidence and was otherwise proper.
T.D.W. also argues that she manifestly improved her stability by obtaining
stable housing and full-time employment for more than a year prior to trial. And,
A-2267-18T2 12 she showered A.C.W. with affection, attended the twelve-week parenting
course, and was proficient during the program. The Court in K.H.O. held that
the second prong may be satisfied "by indications of parental dereliction and
irresponsibility, such as . . . the inability to provide a stable and protective home
[and] the withholding of parental attention and care. . . ." K.H.O., 161 N.J. at
353. Harm considerations may also include the harm caused by "separating the
child from his [or her] resource family parents. . . ." N.J.S.A. 30:4C-15.1(a)(2).
Here, the evidence supports the court's finding that T.D.W. was unable
and unwilling to eliminate the risk of harm to A.C.W. Based upon his evaluation
of T.D.W., Dr. Brandwein concluded that she was not capable of parenting
A.C.W. at the present time, and T.D.W. consistently surrounded herself with
paramours who pose a serious harm to A.C.W. and her other children.
Additionally, T.D.W. refused to take responsibility for her role in the removal
of her two older children. 5
T.D.W.'s decision to forego numerous opportunities to visit with A.C.W.,
and her failure to accept responsibility for her conduct provided ample support
5 T.D.W.'s two other children were removed from her care, in part, because she continued to reside with a different paramour who also "pose[d] risks to the children's safety and well-being . . . ." N.J. Div. of Child Prot. & Permanency v. T.D.W., No. A-2620-17 (App. Div. Feb. 28, 2019) (Slip op. at 19). A-2267-18T2 13 for the court's determination that T.D.W. was unwilling "to find safe housing for
[A.C.W.] that is free of [Martin]." Furthermore, the court added, "delaying
permanent placement will add to the harm that the child has already suffered, as
[A.C.W.] has been in placement since February 8, 2017 . . . ."
Moreover, the evidence supports the court's finding that separating
A.C.W. from her resource mother would cause harm. Deferring to the court's
fact findings, see F.M., 211 N.J. at 448, we are convinced the record contains
clear and convincing evidence that T.D.W. is unwilling to eliminate the harm
facing A.C.W., including the harm that would result if A.C.W.'s placement with
her resource parent was delayed or not made permanent. N.J.S.A. 30:4C-
15.1(a)(2).
C. Prong Three
The third prong of the best interests of the child standard requires the
Division to establish that it made reasonable efforts to help the parent correct
the circumstances that led to the child's removal from the parent's care, and
"considered alternatives to termination of parental rights. . . ." N.J.S.A. 30:4C-
15.1(a)(3). "The diligence of [the Division's] efforts on behalf of a parent is not
measured by their success. . . . These efforts must be assessed against the
A-2267-18T2 14 standard of adequacy in light of all the circumstances in a given case." DMH,
161 N.J. at 393.
We are not persuaded by defendant's argument that the Division failed to
make reasonable efforts to provide services. "Reasonable efforts" means
"attempts by an agency authorized by the [D]ivision to assist the parents in
remedying the circumstances and conditions that led to the placement of the
child and in reinforcing the family structure, including, but not limited to: "
developing a plan for reunification; providing agreed upon services; informing
the parent of the child's progress; and "facilitating appropriate visitation."
N.J.S.A. 30:4C-15.1(c). "Whether particular services are necessary in order to
comply with the [reasonable] efforts requirement must . . . be decided with
reference to the circumstances of the individual case before the court . . . ."
DMH, 161 N.J. at 390. The Division's efforts need not be successful to be
reasonable. F.M., 211 N.J. at 452.
The record reflects that T.D.W. received multiple referrals to substance
abuse treatment centers, counseling, therapy, parenting classes, therapeutic
visitation, three psychological evaluations and two bonding evaluations. In
addition, the Division provided A.C.W. with Medicaid, two non-relative
resource placements, therapeutic visitation, the assistance of a Division nurse to
A-2267-18T2 15 provide updates on the child's healthcare needs, and transportation for parenting
time with T.D.W. and her siblings.
T.D.W. contends that the Division failed to communicate, cooperate, and
consult her about reunification with A.C.W. with Martin as a co-parent, or about
her stepmother, Emma, becoming a custodial parent. After the guardianship
complaint was filed, T.D.W. argues that a Division attorney new to the case
urged the court to order T.D.W. to cease residing with Martin because of his
criminal history.
As the trial court correctly noted, T.D.W. has failed to sufficiently take
advantage of the Division's services and benefit therefrom, despite the Division's
reasonable efforts to provide them. Moreover, Dr. Brandwein testified that
T.D.W. continues to remain romantically involved with Martin and therefore,
should not be reunified with A.C.W. Martin's criminal history was extensive
and violent, and Dr. Brandwein opined that A.C.W. should not be allowed near
him. Further, T.D.W. presented no evidence or expert testimony to opine that
Martin could co-parent A.C.W.
The same holds true for T.D.W.'s stepmother, Emma, who actually is "a
previous girlfriend of the dad," according to a caseworker. Similar to Martin,
A-2267-18T2 16 Emma is not a relative of A.C.W. requiring the Division's investigation, and
T.D.W. did not suggest Emma as a placement option until August 2018.
We are therefore satisfied that the court correctly determined that the
Division established by clear and convincing evidence the third prong of the best
interests standard. N.J.S.A. 30:4C-15.1(a)(3).
D. Prong Four
The fourth prong of the best interests of the child standard requires the
Division to show that termination of defendant's "parental rights will not do
more harm than good." N.J.S.A. 30:4C-15.1(a)(4). Termination of parental
rights poses a risk to children due to the severing of the relationship with their
natural parents, but it is based "on the paramount need the children have for
permanent and defined parent-child relationships." K.H.O., 161 N.J. at 355
(quoting In re Guardianship of J.C., 129 N.J. 1, 26 (1992)).
Thus, "the fourth prong of the best interests standard [does not] require a
showing that no harm will befall the child as a result of the severing of biological
ties." Ibid. The court must consider and balance whether "the child will suffer
a greater harm from the termination of ties with [his or] her natural parents than
from the permanent disruption of [his or] her relationship with [his or] her foster
parents." Ibid.
A-2267-18T2 17 Here, there is sufficient credible evidence in the record supporting the trial
judge's finding that the Division established prong four of the best interests of
the child standard. The judge appropriately concluded that T.D.W. will not be
able to safely and appropriately care for A.C.W. now or in the future. T.D.W.
still exhibits the same behaviors, such as inconsistent attendance at services, and
a relationship with a dangerous paramour. Moreover, A.C.W. has resided with
her resource parent for most of her life, who meets the child's needs and is
becoming her psychological parent.
T.D.W.'s argument that her fourteenth amendment right to family
autonomy and association lacks sufficient merit to warrant any discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2267-18T2 18