NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.R.
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1847-17T1
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
C.R.,
Defendant-Appellant,
and
M.T.C.,
Defendant.
_____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF A.C.C.,
a Minor.
______________________________
Argued November 28, 2018 – Decided December 21, 2018
Before Judges Fuentes, Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FG-11-0020-17.
Ryan T. Clark, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Ryan T. Clark, on the briefs).
Joann M. Corsetto, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jason W. Rockwell, Assistant
Attorney General, of counsel; Joann M. Corsetto, on the
brief).
Rachel E. Seidman, Assistant Deputy Public Defender,
argued the cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Rachel E. Seidman,
on the brief).
PER CURIAM
Defendant C.R. (Carol)1 appeals from a December 8, 2017 Family Part
Judgment of Guardianship terminating her parental rights to her son A.C.C.
(Alan), who was born in 2015. We are convinced the court correctly determined
the New Jersey Division of Child Protection and Permanency proved by clear
and convincing evidence that termination of defendant's parental rights is in
Alan's best interests, and affirm.
1
We employ initials and pseudonyms for the parties and the children for clarity
and to protect their privacy and the confidentiality of these proceedings. R. 1:38-
3(d)(12).
A-1847-17T1
2
Carol and M.T.C. (Michael) are the biological parents of three children,
T.C. (Tara) and M.T.C., Jr. (Mark), who were born in 2012, and Alan. The
Division first became involved with Carol and Michael following Tara's birth in
January 2012. The hospital where Tara was born communicated concerns about
Carol and Michael's apparent developmental disabilities and their effect upon
the parents' ability to care for the child. The Division implemented a safety plan
which required that Carol's parents supervise all of Carol and Michael's contact
with Tara.
In February 2012, the Division conducted an emergency removal of Tara
when it discovered for the third time that Carol's parents permitted Carol to care
for Tara without their supervision. The court granted the Division temporary
custody, care and supervision of Tara, ordered Carol and Michael to comply
with services and directed supervised visits between Tara and her parents. Carol
and Michael completed psychological evaluations. The psychologist who
performed the evaluations recommended that neither parent care for Tara
without supervision. The psychologist stated that Carol and Michael "are not
capable of parenting because they cannot retain information and are unable to
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3
fully comprehend." The psychologist reported that Carol was "assessed as being
mentally retarded."2
Carol underwent a psychiatric evaluation in May 2012. The psychiatrist
diagnosed Carol with cognitive disorder, provisional learning disabilities,
provisional pervasive developmental disorders, impairment in parental abilities
secondary to psychiatric problems, and borderline intellectual functioning
versus mental retardation. The psychiatrist recommended only supervised
visitation between Carol and Tara.
In December 2012, Carol gave birth to Mark in a hospital different than
the one where Tara was born. The hospital made a referral to the Division,
which determined Carol and Michael were unable to care for Mark because
Carol was not capable of parenting independently and Michael had failed to
comply with services. The Division conducted an emergency removal of Mark
upon his release from the hospital, and the court granted the Division care,
custody and supervision of Mark.
2
We recognize that modern social norms reject the label "mentally retarded" as
an offensive and demeaning term when used to refer to individuals with any kind
of developmental disabilities or cognitive limitations. We use it here only
because it was part of the record developed before the Family Part. We do not
intend any disrespect.
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4
The Division obtained a psychological assessment of Carol in February
2013, stating Carol has "severe intellectual limitations," "great difficulty
understanding even simple directions and significant impairments in her abstract
thinking and reasoning." The psychologist opined that Carol's "prognosis
remains quite poor" and her condition "is quite chronic and disabling, and . . .
unlikely to remit even with services and interventions." The psychologist
recommended that "[o]ther permanency planning for the minor children besides
reunification . . . is indicated and supported."
The Division also obtained an updated psychiatric evaluation of Carol in
May 2013. The psychiatrist reported that Carol had a "full scale IQ [of] 54 . . .
which puts her in the moderate level of mental retardation" and "clearly [had]
significant cognitive disabilities and learning disabilities since she was a fairly
young child."
Six months later, in November 2013, Carol and Michael made a voluntary
surrender of their parental rights to Tara and Mark.3
In October 2015, Carol gave birth to Alan. The hospital where Alan was
born made a referral to the Division. Carol and Michael agreed to a safety plan
3
The same resource family adopted Tara and Mark. They reside in Florida.
A-1847-17T1
5
requiring that a family friend supervise their contact with Alan.4 Two months
later, the family friend could no longer supervise Carol and Michael's contact
with the child, and the Division conducted an emergency removal of Alan from
their care. On December 18, 2015, the court entered an order granting the
Division temporary care, custody and supervision of the child. The court also
ordered services for Carol and Michael and supervised visits with Alan.
In February 2016, Alan was placed in a new resource home following a
one-week hospitalization for breathing issues. In March 2016, a cardiac
evaluation revealed that Alan had right pulmonary artery stenosis. He
underwent a cardiac catheterization. An orthopedist recommended that Alan
undergo physical therapy.
Michael voluntarily surrendered his parental rights to Alan in June 2016. 5 On August 29, 2016, the court entered a permanency order finding Carol failed
to remediate the circumstances that led to Alan's removal and that there
4
It was initially suggested that Carol's parents serve as supervisors of Carol and
Michael's contact with Alan. The Division rejected the suggestion because
Carol's parents failed to monitor Carol's contact with Tara in accordance with
the safety plan in effect after Tara was born and Carol's mother had previously
been substantiated for neglect due to lack of supervision of her own children.
Carol's father opposed Alan's placement with him and his wife and refused to
attend a psychological evaluation.
5
Michael is therefore not a party to this appeal.
A-1847-17T1
6
"continue[d] to be concerns regarding [Carol's] mental health and ability to
independently parent her child."
On December 1, 2016, the Division filed a complaint for guardianship.
Later that month, Alan's resource parent had a medical condition that precluded
continued care of Alan. Alan was placed in St. Clare's Home for Children, a
facility that provides residential medical care for children. Alan had pneumonia
when he was admitted. He also had diagnoses including developmental delay,
hypotonia, chronic asthma, and heart and lung issues. Alan remained in St.
Clare's care through the guardianship trial. He has received treatment from a
physical therapist, occupational therapist, speech therapist and developmental
interventionist, as well as medical evaluations and treatment from specialists
including an endocrinologist, pulmonologist, cardiologist, gastrointestinal
specialist and ophthalmologist. He requires a special walker, bath chair and
high chair.
At the trial, the Division presented the testimony of Division family
service specialist Alba Hernandez and Dr. Melissa Rivera Marano, who was
qualified as an expert in the field of psychology. Carol testified on her own
behalf and presented her mother as a witness. Numerous exhibits were also
admitted in evidence.
A-1847-17T1
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The court reserved decision following the presentation of the evidence and
counsels' closing arguments. The court later issued a decision from the bench.
The judge made detailed findings of fact as to each prong of the statutory best-
interests-of-the-child standard, N.J.S.A. 30:4C-15.1(a), and determined the
Division established by clear and convincing evidence that it was in Alan's best
interests to terminate Carol's parental rights.
More particularly, the court found the psychological and psychiatric
evaluations of Carol and the testimony of Dr. Marano established that Carol's
cognitive limitations rendered her unable to parent Alan "or any other child now
or in the foreseeable future." Dr. Marano testified Carol requires ongoing
support to manage her own life and that Alan's medical and cognitive issues
require the heightened awareness of a parent that Carol lacks the ability to
provide. The court found Carol's cognitive limitations render her unable "to
eliminate the harm" to Alan and "understand the extent of [Alan's] significant"
medical issues and developmental delays. The court concluded Carol's inability
to parent endangers Alan's health, safety and development.
The court further found Carol is "both unwilling and unable to provide a
safe and stable home for" Alan. The court noted that Carol was only
"sporadically compliant" with the numerous services provided by the Division,
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failed to regularly attend Alan's therapeutic sessions and had irregular
attendance at the supervised visits with Alan. The court found that the credible
evidence showed Carol simply lacks the "necessary cognitive ability to parent"
Alan and provide an independent home for herself or Alan. The court also
determined that Carol is unable to provide the permanency to which Alan is
entitled.
The court found the Division provided Carol with numerous and varied
services6 and that the credible evidence, including Dr. Marano's testimony,
demonstrated that Carol's "cognitive deficiencies prevented her from benefitting
from the services rendered." The court concluded that the Division considered
and properly ruled out family members for placement. The evidence showed
the maternal grandparents were considered but ruled out as both potential
placements for Alan and supervisors for Carol because Carol's mother violated
the safety plan that had been put in place for Tara and had a prior substantiation
for neglect of her own children. The evidence further showed Carol's mother
6
The evidence showed the Division provided Carol with supervised visitation ,
individual therapy, parenting skills training, psychological and psychiatric
evaluations, bonding evaluations, domestic violence counseling, assistance with
completing job applications, and assistance with obtaining services from the
New Jersey Division of Developmental Disabilities. The Division also provided
Carol with transportation to and from the various services.
A-1847-17T1
9
lacked an appreciation of Carol's cognitive deficiencies and the manner in which
they would affect Carol's ability to parent Alan. Carol's father was ruled out
because he did not want Alan placed with him and his wife and he otherwise
failed to cooperate with the Division's request for an evaluation. Carol's sister
was ruled out because of psychiatric issues.
Last, the court determined that the termination of Carol's parental rights
would not do more harm than good. The court noted Alan's "significant health
and medical needs" and the evidence establishing Carol's "significant cognitive
delays and developmental needs preclude her from meeting [Alan's] needs." The
court observed that the bonding evaluation showed Carol was attached to Alan,
but Alan "has no sign of attachment to" Carol. The court further found that the
family which adopted Tara and Mark planned to adopt Alan and were
undergoing an interstate evaluation so they could adopt him.
Satisfied the Division presented clear and convincing evidence
establishing the four prongs of the best interests standard, the judge entered a
December 8, 2017 order terminating Carol's parental rights to Alan. This appeal
followed.
Carol presents the following arguments for our consideration:
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LEGAL ARGUMENT
THE TRIAL COURT’S FINDINGS WERE
INCOMPLETE AND INADEQUATE TO SUSTAIN A
JUDGMENT TERMINATING [CAROL's]
PARENTAL RIGHTS BY CLEAR AND
CONVINCING EVIDENCE AS REQUIRED BY
[ N.J.S.A.] 30:4C-
15 AND 30:4C-15.1[.]
POINT I
The Trial Court Erred in Finding that the Division
Demonstrated by Clear and Convincing Evidence that
the Son's Health and Development Had Been or Will
Continue to be Endangered by the Parental
Relationship under the First Prong.
POINT II
The Trial Court Erred in Finding that the Division
Demonstrated by Clear and Convincing Evidence that
the Mother was Unwilling or Unable to Eliminate the
Harm Facing the Son or is Unable or Unwilling to
Provide a Safe and Stable Home for Him and the Delay
of Permanent Placement Will Add to the Harm under
the Second Prong.
POINT III
The Division failed to Prove Prong Three was Met
Where it Failed to Provide Services that were
Reasonable Under All the Circumstances and the Court
did not Explore Alternatives to Termination.
A. The Division's General Approach, Rather Than
Tailored Services, was Not Reasonable.
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B. The Division Provided Services That Were Not
Appropriate Under the Circumstances in Violation of
the Americans with Disabilities Act Under 42 U.S.C.
Sec. 12101 ET SEQ.
C. The Court Erred by Finding that the Division
Considered Alternatives to Termination where it
Refused to Place the Son with his Grandmother.
POINT IV
The Trial Court Erred in Finding that the Division
Demonstrated by Clear and Convincing Evidence that
Termination of the Mother's Parental Rights Will Not
Do More Harm than Good.
A parent has a constitutionally protected right "to enjoy a relationship with
his or her child." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). That
right, however, "is not absolute" and is 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 & Family Servs. v. F.M., 211 N.J. 420, 447
(2012). A parent's interest must, at times, 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).
When terminating parental rights, the court must consider the "best
interests of the child." K.H.O., 161 N.J. at 347. The Division's petition to
A-1847-17T1
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terminate parental rights may only be granted if the following four prongs
enumerated in N.J.S.A. 30:4C-15.1(a) are established by clear and convincing
evidence:
(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 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 considered
alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more
harm than good.
[N.J.S.A. 30:4C-15.1(a).]
"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." K.H.O., 161 N.J.
at 348. "[T]he cornerstone of the inquiry [under N.J.S.A. 30:4C-15.1(a)] is not
A-1847-17T1
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whether the biological parents are fit but whether they can cease causing their
child harm." In re Guardianship of J.C., 129 N.J. 1, 10 (1992).
Our review of a trial court order terminating parental rights is limited.
N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "A
Family Part's decision to terminate parental rights will not be disturbed when
there is substantial credible evidence in the record to support the court's
findings." N.J. Div. of Child Prot. & Permanency v. K.T.D., 439 N.J. Super.
363, 368 (App. Div. 2015) (citing F.M., 211 N.J. at 448). "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." F.M., 211 N.J. at 448. This
enhanced deference is particularly appropriate where the court's findings are
founded upon the credibility of the witnesses' testimony. N.J. Div. of Youth &
Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (citing Rova
Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
"Only when the trial court's conclusions are so 'clearly mistaken' or 'wide
of the mark' should an appellate court intervene and make its own findings to
ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs.
v. E.P., 196 N.J. 88, 104 (2008) (quoting G.L., 191 N.J. at 605). No deference
A-1847-17T1
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is given to the trial court's "interpretation of the law," which we review de novo.
D.W. v. R.W., 212 N.J. 232, 245-46 (2012).
Measured against these principles, we discern no basis to reverse the
court's order. Having carefully reviewed the record, we are satisfied the judge
conducted the requisite fact-sensitive analysis of the statutory factors, see
K.H.O., 161 N.J. at 348, and that there is sufficient credible evidence supporting
the court's findings as to each of the four prongs of the best interests standard.
We affirm substantially for the reasons set forth in the court's oral decis ion.
We add only that we reject Carol's argument that the Division violated the
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213, by failing
to provide her with services that accommodated her disabilities. The argument
was not raised before the trial court and does not involve jurisdictional or public
interest concerns. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)
(quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App.
Div. 1959)) ("[O]ur appellate courts will decline to consider questions or issues
not properly presented to the trial court when an opportunity for such a
presentation is available 'unless the questions so raised on appeal go to the
jurisdiction of the trial court or concern matters of great public interest.'").
Moreover, "the ADA does not provide a defense to a termination of parental
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rights proceeding" because to do so would "improperly elevate the rights of the
parent above those of the child." N.J. Div. of Youth & Family Servs. v. A.G.,
344 N.J. Super. 418, 442 (App. Div. 2001). Furthermore, similar to the
circumstances in A.G., the Division here provided defendant services to help her
address the problems engendered by her cognitive limitations. As was the case
in A.G., "those efforts did not bear fruit." Ibid.
We also note that we agree with Carol's contention that the Division did
not comply with the requirements of N.J.S.A. 30:4C-12.1(b). The Division
failed to provide a list of reasons for its decision ruling out the maternal
grandparents and aunt as potential placements for Alan, informing them of their
right to appeal the determination, alerting them that they could notify the
Division if there was a change of circumstances and advising them that a
termination of parental rights might occur if the Division maintained custody of
Alan for more than six months. See N.J.S.A. 30:4C-12.1(b)(2) to (4). However,
a reversal of an order terminating parental rights based on the Division's failure
to comply with the statute "is warranted only when it is in the best interests of
the child." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568,
581 (App. Div. 2011). The record does not support such a finding here.
Affirmed.
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