NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.C.
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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2673-17T3
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
T.C.,
Defendant-Appellant,
and
J.D.,
Defendant.
______________________________
IN THE MATTER OF THE
GUARDIANSHIP OF S.D.,
a Minor.
______________________________
Submitted December 10, 2018 – Decided December 27, 2018
Before Judges Messano and Fasciale.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FG-14-0028-17.
Joseph E. Krakora, Public Defender, attorney for
appellant (Phuong V. Dao, Designated Counsel, on the
briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason W. Rockwell, Assistant Attorney
General, of counsel; Sara M. Gregory, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Maria E. Borges, Assistant Deputy
Public Defender, on the brief).
PER CURIAM
Defendant T.C. (the father) appeals from a February 1, 2018 order
terminating his parental rights to S.D. (the child), born in 2010. Judge Maritza
Berdote Byrne presided over the trial, entered the order under review, and
rendered a forty-page written opinion. The father contends primarily that the
Division of Child Protection and Permanency (the Division) failed to sustain its
burden of proof. We disagree and affirm.
A-2673-17T3
2
After the police arrested the mother for her involvement in a sting
operation, the Division performed a Dodd 1 removal when the child was
approximately five-years-old. At this point in the child's life, the father – who
did not know he was the father "until after a while had passed" – had seen him
about three times. The father suffers from an alcohol problem and lacks insight
into the child's needs, and thus was unable to provide the child with a permanent,
safe, and stable home. As a result, the Division placed the child with resource
parents, who want to adopt him.
The governing law is settled. 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
1
A "Dodd removal" refers to the emergency removal of a child from the home
without a court order pursuant to N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd
Act. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
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3
effectuate these concerns, the Legislature created a test for determining when a
parent's rights must be terminated in a child's best interests.
To obtain parental termination, N.J.S.A. 30:4C-15.1(a) requires that the
Division 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 his resource family parents would cause
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 court has considered
alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more
harm than good.
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.
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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 [trial] court'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,
87 (App. Div. 2006). The factual findings, which undergird 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., 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. There exists substantial
credible evidence in the record to support the judge's findings as to all four
prongs. We briefly summarize those findings.
For the first prong, the judge found that the father had a chronic untreated
alcohol abuse problem, and that he lacked insight into the child's needs. He has
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not provided a stable environment for the child, and when the father visited with
the child, the visits caused the child to suffer from anxiety.
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
inquiry for the trial court is whether the parent has cured and overcome the initial
harm that endangered the child, and "is able to continue a parental relationship
without recurrent harm to the child." K.H.O., 161 N.J. at 348.
The judge found that the father's "significant substance abuse issue ha[d]
not been remedied." She also found that "both prior to [the child's] removal and
after [he] was placed in resource care, [the father] . . . acted minimally and
without any sense of urgency with respect to [the child's] needs." Despite
believing he was the child's father, he refused to engage in any services until the
Division established paternity. Once paternity was confirmed, he "took more
than a year to obtain suitable housing, failed to visit with [the child] for a period
of six months and admitted he was lax in communicating with the Division." It
took him sixteen months to submit a parenting plan, and eighteen months to take
a parenting class. He did not contact the child's therapist or teachers despite
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6
being encouraged to do so. And during this time, he continued using alcohol.
The judge concluded that the father's lack of insight was unlikely to change in
the foreseeable future and would add to the delay of permanently placing the
child in his care.
The third prong requires evidence that "[t]he [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." N.J.S.A. 30:4C- -
15.1(a)(3). "Reasonable efforts may include consultation with the parent,
developing a plan for reunification, providing services essential to the
realization of the reunification plan, informing the family of the child's progress,
and facilitating visitation." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007). However, "[t]he diligence of [the Division]'s efforts on
behalf of a parent is not measured by their success." In re Guardianship of
D.M.H., 161 N.J. 365, 393 (1999).
The judge found that the father first engaged in Division services in
January 2016, only after he received the paternity test result. The Division
provided him with psychological and substance abuse evaluations. The Division
also met with the father and "developed written family agreements" addressing
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necessary services, such as adequate housing, a suitable parenting plan,
attendance at AA meetings, and engagement with the child's doctor and therapist
to understand his needs. The Division offered the father "family team meetings,
evaluations, parenting classes, and access to [the child's] doctors and teachers,"
but he "failed to avail himself of these services until the very last possible
moment and, in some circumstances, not at all." The judge further found that
the Division considered alternatives to termination of the father's parental rights,
including placing the child with family and friends, all of whom indicated that
they could not care for the child.
Under the fourth prong, the court must ask 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 the permanent disruption
of [his] relationship with [his] 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." N.J. Div. of Youth
& Family Servs. v. L.J.D., 428 N.J. Super. 451, 491-92 (App. Div. 2012).
The judge found the testimony of Dr. Maureen Santina, an expert in
psychology and substance abuse, "the most compelling and accurate because the
A-2673-17T3
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two other experts accepted [the father]'s self-report of long term sobriety and
did not consider [his] use of alcohol to be a factor in determining his capacity to
parent." The judge concluded that the other experts "incorrectly focused" on the
father's past driving while intoxicated offenses instead of his current use of
alcohol or the effectiveness of his prior substance abuse treatment.
The judge agreed with Dr. Santina that the father "exhibited a substantial
level of denial and persistent pattern of minimization regarding his substance
abuse." The father contradicted himself regarding his consumption of alcohol,
his belief whether he had an alcohol problem, and his lack of effective treatment.
Although he "reported extensive involvement in AA," he still consumed alcohol
and remained unfamiliar with details of the program.
The judge also agreed with Dr. Santina that the father did not understand
the child's needs. As Dr. Santina testified, the child's history of trauma and
consequent PTSD made him "hypersensitive" to a lack of predictability and
required enhanced stability, security, consistency, and empathy. If his needs
were not met, he was likely to experience elevated levels of anxiety, depression,
anger, and social aggression. The father did not have the capacity to meet the
child's needs, whereas the child derived safety and security from his resource
parents. The judge accepted Dr. Santina's testimony that if the child was
A-2673-17T3
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separated from his resource parents he would suffer severe and enduring harm
that the father could not ameliorate. By contrast, terminating the father's
parental rights would have a minimal impact on the child, and his resource
parents were capable of mitigating any harm.
The judge found that the findings of Dr. Eric Kirschner, an expert in
clinical psychology, bonding, and parenting assessment, "were consistent" with
Dr. Santina's. Dr. Kirschner testified that the child had a strong bond with his
resource parents, but not with the father. Removing the child from his resource
parents would be psychologically harmful in the short-term and long-term
because it would create disruption and anxiety, which would exacerbate the
child's PTSD. Dr. Kirschner likewise recommended that the child remain with
his resource parents.
The court found that the conclusions of the father's expert, Dr. James
Reynolds, "were not contrary" to the other two experts. He opined that the child
would suffer "some harm" if the father's parental rights were terminated, and
lesser harm if he was removed from his resource parents. Dr. Reynolds testified
that the child did not view the father as his psychological parent, and agreed that
the resource parents could mitigate the harm to the child from terminating the
A-2673-17T3
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father's parental rights. Thus, as the judge noted, Dr. Reynolds's and Dr.
Santina's testimony differed, but was not necessarily in conflict.
The judge concluded that "all three experts opined [the child] has a secure
attachment with his resource parents and the resource parents would be able to
mitigate any harm resulting from the termination of [the father's] parental
rights." Thus, she found that the Division proved by clear and convincing
evidence that termination of the father's parental rights would not do more harm
than good to the child.
Affirmed.
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