DIVISION OFCHILD PROTECTION AND PERMANENCY v. S.M.

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3446-16T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

S.M.,

Defendant-Appellant,

and

J.A. and W.M.,

Defendants.

IN THE MATTER OF THE GUARDIANSHIP
OF J.A., Ju.A., P.L.A.M., J.A.M.,
So.M., and Sa.M., Minors.

Submitted May 15, 2018 – Decided June 4, 2018

Before Judges Yannotti, Carroll and DeAlmeida.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0261-15.

Joseph E. Krakora, Public Defender, attorney
for appellant (Cecilia M.E. Lindenfelser,
Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Jason W. Rockwell, Assistant
Attorney General, of counsel; Mohamed Barry,
Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Danielle Ruiz,
Designated Counsel, on the brief).

PER CURIAM

Defendant S.M. appeals from the March 31, 2017 judgment of

guardianship terminating her parental rights to her children,

J.A., born in July 2005, Ju.A., born in December 2011, twins

P.L.A.M. and J.A.M., born in July 2014, and twins So.M. and Sa.M.,

born in May 2016.1 Defendant contends the New Jersey Division of

Child Protection and Permanency (Division) failed to prove two of

the four prongs of
N.J.S.A. 30:4C-15.1(a) by clear and convincing

evidence. The Law Guardian supports the termination of parental

rights. We affirm, substantially for the reasons stated by Judge

Bernadette N. DeCastro in her thorough written opinion issued with

the judgment.

1
The judgment also terminated the parental rights of the
children's biological fathers, who are not involved in this appeal.

2 A-3446-16T3
I.

The evidence presented at the three-day trial is outlined in

detail in the judge's opinion. We summarize the evidence most

pertinent to the issues raised by defendant on appeal.

Defendant's involvement with the Division is quite extensive,

and dates back to 2002.2 According to testimony and documentary

evidence presented by the Division's adoption caseworker,

defendant's history with the Division has been punctuated by her

continued drug use and lack of compliance with treatment programs

and other services offered by the Division over several years.

The Division's expert psychologist, Karen D. Wells, Psy.D.,

testified regarding her psychological evaluations of defendant,

and bonding evaluations she conducted between defendant and the

children and between the children and their resource parents. Dr.

Wells explained that defendant's continued use of PCP resulted in

unpredictable behaviors that may be displayed in terms of

belligerence and hostility. The drug also creates "distortions"

that impair defendant's judgment and jeopardize her ability to

respond to emergencies in an appropriate manner, to tolerate

2
Defendant is also the biological mother of two other children
not at issue in this appeal: N.M., born in November 1999, and
Jos.A., born in April 2003. Defendant's parental rights to Jos.A.
were terminated on October 15, 2015, and N.M. was in the Kinship
Legal Guardianship program with a relative at the time of trial
in this matter.

3 A-3446-16T3
regular child developmental concerns, and to focus on multiple

children simultaneously. In addition, PCP use can mask underlying

mental health issues, and mental health treatment cannot be

provided while defendant is actively engaged in PCP use.

Dr. Wells concluded defendant was incapable of providing

adequate care to the children and that she presented a grave risk

of danger to them. Moreover, defendant could not provide a safe

and stable home for herself, let alone for her children.

Dr. Wells found no secure and stable parent-child bonds

between defendant and the children. She found that Ju.A.,

P.L.A.M., and J.A.M. would not suffer any harm if removed from

defendant's care permanently. She opined that J.A., the oldest,

might suffer distress upon termination of defendant's parental

rights. However, he would not suffer enduring or irreparable

harm, and any distress would be mitigated by his strong

relationship with A.A., his paternal grandmother who he lived with

and who wished to adopt him.

Dr. Wells elaborated upon the bonding evaluations she

conducted between the children and their resource parents. She

found an intact, secure parental bond between A.A. and J.A., Ju.A.,

and J.A.M., and concluded that the children would be "emotionally,

psychologically devastated" if removed from A.A.'s care. Dr.

Wells also found an intact and secure parental bond between

4 A-3446-16T3
P.L.A.M. and her paternal aunt, L.B., who wished to adopt her.

Dr. Wells concluded that, if separated from L.B.'s care, P.L.A.M.

would suffer acute harm that could become enduring due to her

confusion and young age.

Dr. Wells also explained that she performed no bonding

evaluations as to Sa.M. and So.M. because they had been with their

resource family since shortly after birth, and had no relationship

with defendant. Nonetheless, Dr. Wells opined that all of the

children would suffer harm if separated from their resource

families and returned to defendant's care. Dr. Wells found

permanency and stability to be necessary for the children's

development and well-being. She concluded it would not be in the

children's best interests to further delay permanency to allow

defendant more time to receive services, given the length of the

litigation, the family's history, and prior failed interventions.

After carefully reviewing the evidence, Judge DeCastro found

that, "[d]uring this protracted litigation, the Division offered

[defendant] . . . a plentitude of services." These included

several substance abuse programs, parenting classes, anger

management, supervised visitation, and bus passes. The judge

noted defendant's lack of compliance with these services.

Specifically, the judge found defendant "has failed to enroll in

any substance abuse program since October 2015. [She] still has

5 A-3446-16T3
to complete a residential substance abuse program, individual

counseling, anger management, and parenting skills. In addition,

she needs housing and employment."

Judge DeCastro also accepted Dr. Wells' opinion that

defendant "is on a downward spiral," "is unable to provide a safe

and stable environment for the children," and that defendant's

unpredictable behavior poses a risk to the children that was

unlikely to change in the foreseeable future. The judge further

noted Dr. Wells' conclusion that, if the children are returned to

defendant, they would suffer "unimaginable harm."

Based on these findings, Judge DeCastro determined the

Division proved by clear and convincing evidence the four prongs

of the best interests test, codified in
N.J.S.A. 30:4C-15.1(a).

Consequently, the judge terminated defendant's parental rights to

the children, and found adoption by the resource parents

appropriate and in the children's best interests. This appeal

followed.

II.

We begin our analysis by recognizing the fundamental

proposition that 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). "The rights to conceive and to raise

6 A-3446-16T3
one's children have been deemed 'essential,' 'basic civil rights

. . .,' 'far more precious . . . than property rights.'" Stanley

v. Illinois,
405 U.S. 645, 651 (1972) (citations omitted). "The

preservation and strengthening of family life is a matter of public

concern as being in the interests of the general welfare[.]"

N.J.S.A. 30:4C-1(a); see also K.H.O.,
161 N.J. at 347.

The constitutional right to the parental relationship,

however, is not absolute. N.J. Div. of Youth & Family Servs. v.

A.W.,
103 N.J. 591, 599 (1986). At times, the parent's interest

must yield to the State's obligation to protect children from

harm. In re Guardianship of J.C.,
129 N.J. 1, 10 (1992). To

effectuate these concerns, the Legislature created a four-prong

test for determining whether a parent's rights must be terminated

in the child's best interests. This statutory test requires that

the Division prove by clear and convincing evidence 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 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;

7 A-3446-16T3
(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.

[N.J.S.A. 30:4C-15.1(a).]

These "four prongs 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.'" N.J. Div. of Youth &

Family Servs. v. F.M.,
211 N.J. 420, 448 (2012) (citations

omitted).

The Division need not demonstrate actual harm in order to

satisfy prong one. N.J. Div. of Youth & Family Servs. v. A.G.,

344 N.J. Super. 418, 440 (App. Div. 2001). The test is whether

the child's safety, health or development will be endangered in

the future and whether the parent is or will be able to eliminate

the harm. Ibid. Prong one can be satisfied where a parent refuses

to treat his or her mental illness and the mental illness poses a

real threat to a child. F.M.,
211 N.J. at 450-51; see also In re

Guardianship of R.G. and F.,
155 N.J. Super. 186, 194 (App. Div.

1977) (holding that the parents' mental illnesses created an

environment in which they were unable to adequately care for and

raise their children, thus causing them harm, despite the absence

8 A-3446-16T3
of physical abuse or neglect); A.G.,
344 N.J. Super. at 438-39

(holding that the fact that parents may be morally blameless is

not sufficient when psychological incapacity makes it impossible

for them to adequately care for a child).

In addition, a parent's failure to provide a "permanent,

safe, and stable home" engenders significant harm to the child.

In re Guardianship of D.M.H.,
161 N.J. 365, 383 (1999). Likewise,

a parent's failure to provide "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. Compounding

the harm is the parent's "persistent failure to perform any

parenting functions and to provide . . . support for [the child]."

Id. at 380. Such inaction "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.

"The second prong, in many ways, addresses considerations

touched on in prong one." F.M.,
211 N.J. at 451. The focus is

on parental unfitness. K.H.O.,
161 N.J. at 352; D.M.H.,
161 N.J.

at 378-79. In considering this prong, the court should determine

whether it is reasonably foreseeable that the parent can cease to

inflict harm upon the child. A.W.,
103 N.J. at 607. The second

prong may be satisfied

9 A-3446-16T3
by indications of parental dereliction and
irresponsibility, such as the parent's
continued or recurrent drug abuse, the
inability to provide a stable and protective
home, the withholding of parental attention
and care, and the diversion of family
resources in order to support a drug habit,
with the resultant neglect and lack of nurture
for the child.

[K.H.O.,
161 N.J. at 353.]

"Prong two may also be satisfied if 'the child will suffer

substantially from a lack of . . . a permanent placement and from

the disruption of [the] bond with foster parents.'" F.M.,
211 N.J. at 451 (quoting K.H.O.,
161 N.J. at 363).

"The third prong requires an evaluation of whether [the

Division] 'made reasonable efforts to provide services to help the

parent' remedy the circumstances that led to removal of the

children from the home." Id. at 452 (quoting
N.J.S.A. 30:4C-

15.1(a)(3)). The emphasis on the third prong

is on the steps taken by [the Division] toward
the goal of reunification. "The diligence of
[the Division's] efforts on behalf of a parent
is not measured by" whether those efforts were
successful. "'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." Experience tells us that even
[the Division's] best efforts may not be
sufficient to salvage a parental relationship.

[Ibid. (citations omitted).]

10 A-3446-16T3
As part of the inquiry, "the court must consider the alternatives

to termination of parental rights and whether the Division acted

reasonably." A.G.,
344 N.J. Super. at 434-35. "The reasonableness

of the Division's efforts depends on the facts in each case." Id.

at 435.

The fourth prong seeks to determine whether "[t]ermination

of parental rights will not do more harm than good."
N.J.S.A.

30:4C-15.1(a)(4). The fourth prong serves as a "'fail-safe'

inquiry guarding against an inappropriate or premature termination

of parental rights." F.M.,
211 N.J. at 453. "The question

ultimately is not whether a biological mother or father is a worthy

parent, but whether a child's interest will best be served by

completely terminating the child's relationship with the parent."

N.J. Div. of Youth & Family Servs. v. E.P.,
196 N.J. 88, 108

(2008). The court must determine "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." K.H.O.,
161 N.J. at 355.

Because harm to the child stemming from termination of

parental rights is inevitable, "the fourth prong of the best

interests standard cannot require a showing that no harm will

befall the child as a result of the severing of biological ties."

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Ibid. Rather, the court's inquiry is one of comparative harm, for

which the court must consider expert evaluations of the strength

of the child's relationship to the biological parents and the

foster parents. Ibid. Thus, "'[t]o satisfy the fourth prong, the

[Division] should offer testimony of a well qualified expert who

has had full opportunity to make a comprehensive, objective, and

informed evaluation of the child's relationship with both the

natural parents and the foster parents.'" F.M.,
211 N.J. at 453

(quoting N.J. Div. of Youth & Family Servs. v. M.M.,
189 N.J. 261,

281 (2007)). "Under this prong, an important consideration is

'[a] child's need for permanency.' Ultimately, a child has a

right to live in a stable, nurturing environment and to have the

psychological security that his most deeply formed attachments

will not be shattered." Ibid. (citations omitted).

III.

In the present case, with regard to the first prong, Judge

DeCastro found that:

[Defendant] has been unable to provide a safe
and stable home for any of her children since
December 2011. Five of these six children
were born testing positive for PCP. She has
not addressed the significant and long-
standing serious drug addiction since 2011.
Not only has her PCP use continued but her
mental health has deteriorated. She has acted
out toward[] her children and exhibited
erratic and disturbing behavior at visits,
which led to Dr. Gutierrez's recommendation

12 A-3446-16T3
in July 2015 that her visits be suspended
until she enrolled in drug treatment.

Dr. Wells described [defendant's]
functioning as a "downward spiral" since her
children were initially removed from her
custody. This, the expert stated, is not
likely to change in the foreseeable future.

. . . .

Clearly, these children have been harmed
by their mother's inability to remain drug
free. As a result, the children have spent
most of their lives in foster-care.

In considering the second prong, Judge DeCastro concluded

defendant is "unwilling or unable to correct the harm that led to

the children's removal. [She] is in the same position at this

juncture of the case as she was in 2011." The judge accepted Dr.

Wells' testimony that

[defendant] continues to abuse drugs, is
essentially homeless, [and] has been engaged
in illicit activities including prostitution.
According to the expert, "it is unequivocally
clinically contraindicated that [defendant]
be given any additional time to demonstrate
psychological and emotional readiness to
assume parental care and responsibility" for
her children.

Moreover, her mental status and PCP abuse
[have] precipitated unpredictable and
impulsive behaviors placing herself at risk.
Any child, according to Dr. Wells, placed in
her care would be at high risk of injury,
danger, and harm during these period[s] as
[defendant] would likely engage in random acts
of impulsivity, exercise poor judgment, and
evince spontaneous irrational behaviors with

13 A-3446-16T3
an absence of immediate regard for the
consequences. . . .

Thus, Dr. Wells opined that [defendant's]
prognosis is very poor. She has not completed
a drug program since her relapse. She
continues testing positive for PCP and her
behavior during her visits with her children
has been reported to be of concern. In the
expert's opinion, [defendant] is unable to
provide a safe and stable environment for her
son. Moreover, that is unlikely to change in
the foreseeable future.

Judge DeCastro also reviewed the results of the bonding

evaluations conducted by Dr. Wells, and noted her expert conclusion

that defendant is not the psychological parent for any of her

children. Ultimately, "[b]ased upon the uncontroverted expert

testimony of Dr. Wells," the judge determined "the Division has

proven by clear and convincing evidence that [defendant is] unable

or unwilling to eliminate the harm and delaying permanent placement

will add to the harm."

As to prong three, Judge DeCastro found "[t]he Division has

exerted reasonable efforts as to [defendant] since 2011."

Defendant was enrolled in several substance abuse programs, and

while she completed a twenty-eight day detoxification program, she

failed to enter any recommended inpatient treatment program. The

judge noted defendant "was also referred to parenting classes,

which she never completed." The Division also arranged for

defendant to have supervised visitation, but it was briefly

14 A-3446-16T3
suspended in March 2014, and then again in 2015, due to safety

concerns for the children. Moreover, during the period that visits

were restored, they were "sporadic and of concern." The judge

also found there were no viable alternatives to termination, and

that "[t]he Division explored relative placements and the children

are placed with a paternal grandmother and a paternal aunt who

both wish to adopt."

Finally, Judge DeCastro concluded the Division met its burden

of proving by clear and convincing evidence that termination of

defendant's parental rights will not do more harm than good, and

that it was in the children's best interests to do so. The judge

elaborated:

No expert testified that termination of
parental rights would do more harm than good.
In fact, Dr. Wells testified that if removed
from their present caregivers, the [harm to
the] three boys who are in the care of the
paternal grandmother . . . would be
"psychologically devastating." If [P.L.A.M.]
were removed from the paternal aunt, the
expert opined that the child will suffer acute
harm that could be enduring if she exhibits
developmental difficulties as a result of
being exposed to PCP in utero. The expert
summed up her conclusion by stating that it
is not in the children's best interest to
delay permanency to give [defendant] any more
time, given the history of this case.

15 A-3446-16T3
IV.

On appeal, defendant does not challenge the trial court's

findings as to the first and third prongs. She only challenges

the court's findings under the second and fourth prongs that she

is unable or unwilling to eliminate the harm facing the children,

that delaying permanency will harm the children, and that

termination will not cause more harm than good.

Our scope of review on appeals from orders terminating

parental rights is limited. In such cases, the trial court's

findings generally should be upheld so long as 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). A

decision in this context should only be reversed or altered on

appeal if the trial court's findings are "so wholly unsupportable

as to result in a denial of justice." N.J. Div. of Youth & Family

Servs. v. P.P.,
180 N.J. 494, 511 (2004) (quoting In re

Guardianship of J.N.H.,
172 N.J. 440, 472 (2002)). We must give

substantial deference to the trial judge's opportunity to have

observed the witnesses first hand and to evaluate their

credibility. R.G.,
217 N.J. at 552. Even where the appellant

"allege[s] error in the trial judge's evaluation of the underlying

facts and the implications to be drawn therefrom," deference must

be afforded unless the court "went so wide of the mark that a

16 A-3446-16T3
mistake must have been made." M.M.,
189 N.J. at 279 (citations

omitted).

Our review of this record convinces us that no mistake was

made, and that Judge DeCastro's decision is supported by clear and

convincing evidence and carefully tracks the statutory

requirements of
N.J.S.A. 30:4C-15.1(a). Defendant's contentions

to the contrary lack merit and do not provide grounds for

intervention. Accordingly, we affirm the termination of

defendant's parental rights substantially for the reasons set

forth in Judge DeCastro's comprehensive and thoughtful written

opinion.

Affirmed.

17 A-3446-16T3

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