NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. N.L.B. and R.S.H
Annotate this CaseRECORD 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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-1316-18T4
A-1318-18T4
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
N.L.B. and R.S.H.,
Defendants-Appellants.
_____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF G.A.H.,
a Minor.
_____________________________
Argued telephonically December 12, 2019 –
Decided January 14, 2020
Before Judges Geiger and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FG-11-0009-19.
Laura Orriols, Designated Counsel, argued the cause
for appellant N.L.B. (Joseph E. Krakora, Public
Defender, attorney; Robyn A. Veasey, Deputy Public
Defender, of counsel; Laura Orriols, on the briefs).
Kimberly A. Burke, Designated Counsel, argued the
cause for appellant R.S.H. (Joseph E. Krakora, Public
Defender, attorney; Robyn A. Veasey, Deputy Public
Defender, of counsel; Kimberly A. Burke, on the
briefs).
Jennifer A. Lochel, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Christina Anne Duclos,
Deputy Attorney General, on the brief).
Danielle Ruiz, Designated Counsel, argued the cause
for minor (Joseph E. Krakora, Public Defender, Law
Guardian, attorney; Danielle Ruiz, on the brief).
PER CURIAM
In these consolidated appeals, N.L.B ("Nancy") and R.S.H. ("Robert")
contest the Family Part's November 7, 2018 final judgment of guardianship
terminating their parental rights to G.A.H. ("Grace"), 1 who is currently four
years old. Defendants collectively argue that the Division of Child Protection
and Permanency ("Division") did not prove all four prongs of the statutory "best
1
We use fictitious names for Nancy, Robert, Grace, as well as Jill, Amy, Rachel,
Tammy, Helen, and Bill, infra, for ease of reading and to protect their privacy.
R. 1:38-3(d)(12).
A-1316-18T4
2
interests of the child" test under N.J.S.A. 30:4C-15.1(a) by clear and convincing
evidence. The Law Guardian supports termination and urges us to affirm the
trial judge's decision. After considering defendants' arguments against the
record on appeal and the applicable law, we affirm.
I.
At the conclusion of a four-day guardianship trial, Judge Wayne J. Forrest
issued a November 7, 2018 opinion comprehensively addressing all relevant
facts supporting the court's decision. We have independently reviewed the
exhaustive record and we reiterate only those facts necessary to provide context
for our opinion. 2
The Division has been involved with Nancy since January 2011 when she
was twelve years old and her mother J.B. ("Jill") contacted the Division about
Nancy's misbehavior. Three months later, after Nancy turned thirteen, the
Division received an "[a]nonymous" referral about Nancy "cutting herself" and
emotional distress and abuse in the home. The Division ultimately clo sed that
case because Jill was seeking services through an alternative provider and Nancy
was involved in services at her school.
2
A more detailed discussion of the underlying facts is contained in Judge
Forrest's written opinion.
A-1316-18T4
3
In March 2014, Jill contacted the Division again and requested that Nancy,
who was now sixteen, and her seventeen-year-old sister A.L. ("Amy"), be
removed from her home based on their poor behavior. The Division opened a
case for the family and a caseworker went for a site visit, during which Nancy
"admitted to some self-harming behaviors, e.g.[,] cutting and burning herself,"
and depression.
Through September 2014, the Division provided Nancy with services such
as referring her to therapy and life skills classes, helping her seek employment,
and providing food stamps and bus passes. Nancy became noncompliant with
services around October 2014 when she came home admittedly "high" on a
school night while a Division caseworker was meeting with Amy and Jill.
Because Nancy and Jill had a declining relationship, a caseworker referred
Nancy to a transitional living situation that offered living arrangements and life
skills training, but Nancy "wasn't open to participating" as she did not want to
live with strangers. Nancy was ineligible to receive independent living stipends
from the Division because she was a minor, and the caseworker requested the
names of any family members who might be able to offer Nancy housing, but
neither Nancy nor Jill provided any names.
A-1316-18T4
4
By the end of November 2014 and through early 2015, Nancy was living
primarily with the family of her friend from school, was more increasingly
absent from school, and her compliance with services declined. In February
2015, because the Division already had an open case for the family Nancy was
staying with, the Division told Nancy, and Nancy agreed, that she would need
to move back in with Jill. Based on information relayed by Amy, the Division
was concerned that Nancy was still using marijuana and having unprotected sex.
Nancy told the Division she was pregnant with Grace in late March or
early April 2015. The Division promptly began providing Nancy with additional
services, including providing her with a list of female reproductive health
professionals who would accept her medical insurance, offering assistance in
scheduling and attending prenatal appointments, informing her about prenatal
vitamins, and offering her parenting classes.
Although Jill initially expressed interest in looking after Nancy and her
baby in early April 2015, by the end of the month she changed her mind based
on Nancy's behavior. Because the Division was concerned about Nancy's self-
care and her lack of follow-through with prenatal appointments, both of which
would affect Grace, the Division filed a complaint for Nancy's care and
supervision in July 2015, which the court granted.
A-1316-18T4
5
The Division also recommended Nancy attend a Mommy and Me program
where she could remain in school while living with her child, which she
consistently rejected. While Nancy was pregnant, a Mommy and Me program
had an opening, but Nancy refused to attend the meet and greet where she would
have been considered for admission. Had Nancy attended such a program, she
would have received continuing instruction and supervision on how to care for
a newborn, as well as substance abuse treatment, and counseling services.
Meanwhile, between April and October 2015, Nancy was infrequently
attending her referred services and was also missing school. She also
consistently declined to attend Mommy and Me programs. In May 2015, she
attended a psychological evaluation to assess her mental health and future ability
to care for a child. During the evaluation, Nancy admitted she had anger
management problems, suicidal ideations, self-harming behavior, depression,
panic attacks, and high anxiety. She also reported that she had a history of
sexual and physical abuse while living with Jill and other family members. The
psychologist recommended that Nancy be referred for parenting skills classes,
individual psychotherapy, a psychiatric evaluation, and a Mommy and Me
program.
A-1316-18T4
6
As of June 2015, Nancy was unemployed, having lost her part-time job.
In July 2015, Nancy informed a caseworker that prenatal vitamins made her sick,
and that she sometimes forgot to take them. After a visit, the Division
caseworker became concerned about Nancy not receiving prenatal care and her
failure to adequately prepare for the baby's arrival, so the Division sent letters
to local hospitals advising them of Nancy's pregnancy, and arranged
transportation services for Nancy to get to and from the hospitals.
Grace was born on October 30, 2015, and was Nancy and Robert's first
child. Nancy would not disclose to the Division who the baby's father was prior
to Grace's birth. For the first few days of Grace's life, Grace, Nancy, and Robert
lived with Robert's mother T.H. ("Tammy"), who had been substantiated by the
Division for abuse or neglect twice before, one of which involved her "hitting a
[young] child in the head with a bat," resulting in criminal charges.
During a visit to Tammy's home on November 2, 2015, Nancy told a
caseworker she "wasn't sure" how much sustenance Grace was consuming and
estimated that Grace was consuming "almost half of the bottles," and stated
Grace would sleep on Nancy's chest, which the caseworker advised was not safe.
Consistent with Tammy's desire, the caseworker informed Nancy that she and
Grace needed to return to Jill's home.
A-1316-18T4
7
On November 4, 2015, the Division learned from Nancy's therapy worker
that she had not returned home with Grace in accordance with the plan they
established. Further, Nancy did not return phone calls from her school-based
programs, and Jill informed the Division that she had not spoken with Nancy
since November 2, 2015. A caseworker got in contact with Tammy, who stated
that Nancy was still with her, but that she was going to return Nancy to Jill's
home. Upon locating Grace, the Division executed a Dodd removal 3 that day,
November 4, 2015.
After the Dodd removal, the Division filed a verified complaint for
custody of Grace in which it alleged that Nancy had not made progress in
preparing for Grace's birth. More specifically, the Division first emphasized
that both Nancy's and Robert's families were involved with the Division and
specifically that Robert's mother Tammy was substantiated twice for physical
abuse against her children. The Division stated that it also had concerns
regarding Nancy's poor attendance at school and the inability of her mother to
provide adequate financial support for the family.
3
"A 'Dodd removal' refers to the emergency removal of a child from the home
without a court order, pursuant to the Dodd Act," N.J.S.A. 9:6-8.21 to -8.82.
N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App.
Div. 2010).
A-1316-18T4
8
The Division also noted that Nancy had undergone a psychological
evaluation prior to Grace's birth where she admitted to depression, suicidal
thoughts, poor appetite, past anxiety and panic attacks, and self-harming
behavior such as cutting, burning, and punching herself, which continued at the
time of the evaluation. Despite her admissions, Nancy did not pursue the
recommendations in the doctor's report considered necessary for her to capably
parent a child. To support its contention that Nancy was ill-prepared to parent
a newborn, the complaint referred to the Division caseworker's finding that
Nancy did not have enough bottles to accommodate a newborn baby and that
she possessed a car seat not suitable for a newborn. Furthermore, Nancy had
yet to enroll in a Women, Infants and Children Nutritional Program ("WIC") to
ensure she had sufficient supplies for her baby upon birth, and she failed to
provide proof of attendance at her pre-natal medical visits and that she was
taking her prescribed pre-natal vitamins.
At a subsequent meeting with Nancy, Tammy, and Amy less than a month
before Grace was born, the Division learned that Nancy also had yet to file
paperwork for home instruction from school once the baby was born, and had
still not applied for WIC. Nancy and her mother attempted to visit the welfare
office to arrange for medical insurance for the baby and food stamps, but Nancy
A-1316-18T4
9
refused to cooperate and failed to provide her school schedule which was
necessary to complete the application process. At the same meeting, the
Division also addressed Nancy's failure to show up to parenting education
classes and the Trenton Central High Parent Linking Program that the court
ordered her to attend.
After considering the testimony of a Division supervisor who testified that
the Division felt it was in the best interest for Grace to be removed because
Nancy did not "complete those services [that were recommended to her] in order
to better parent [Grace] when she was born," the court approved the removal of
Grace and her placement with her resource parents H.D. and B.D. ("Helen" and
"Bill"). The court specifically found that Nancy failed "to comply with and did
not take the necessary precautions and necessary classes in order to ensure that
she was capable of caring for [Grace]." The court also determined that the
removal was necessary to avoid any "ongoing risk to the life, safety, and the
health of the child" due to the "noncompliance with the services that were
required in order to ensure that [Nancy] was prepared to take care of the child."
With respect to Robert, the court found based on the testimony of the
Division supervisor that he was "living with his mom[] and . . . Robert is not a
suitable candidate for the child because there [were] substantiated . . .
A-1316-18T4
10
complaints in his [mother's] home." The court concluded that the Division made
reasonable efforts to ensure that Nancy was prepared to care for Grace, but she
did not take advantage of offered services. The court also found the Division
made reasonable efforts to place Grace with Robert but were unable to do so as
he was living with his mother.
At a hearing on November 17, 2015, the court affirmed its decision to
grant the Division custody of Grace. Nancy again stated at that hearing that she
was not interested in participating in a Mommy and Me program. The court
implemented services for both Nancy and Robert, along with visitation, with the
clear goal of reunifying them with Grace.
Immediately after Grace's removal, a Division caseworker also learned
that Nancy was not attending recommended therapy. During Nancy and Robert's
first visit with Grace after the Dodd removal, Nancy told a caseworker that she
stopped attending therapy because a therapy worker said all of the services were
voluntary. Days later, a caseworker met with Nancy and Robert to discuss what
they had to accomplish to achieve reunification. Nancy was advised she needed
to participate in life skills training, a psychiatric evaluation, a substance abuse
evaluation, parenting classes, an Intensive Services Program ("ISP"), and after -
school based program on Thursdays, and a parenting program on Fridays. The
A-1316-18T4
11
caseworker also told Robert that he needed to participate in a fatherhood
program, attend a substance abuse evaluation, and attend parenting classes at
ISP.
On November 9, 2015, Tammy told the Division that she took Robert to
the fatherhood program to sign up for classes, but that they needed to return to
fill out intake forms. A few weeks later, the Division learned that the fatherhood
program did not have Robert's information on file. Robert claimed he signed up
for the fatherhood program, but during a visit on November 24, 2015, Robert
could not provide the name of the person to whom he had allegedly spoken with.
Also, that November, Tammy requested that the Division assess her and
her cousin as a possible placement option for Grace. Tammy did not provide
any information about her cousin, but the Division discovered that Tammy was
dismissed from a prior litigation for not complying with services after being
established for hitting her grandchildren. Tammy was thereafter not allowed to
have unsupervised contact with Grace until she engaged in services.
Jill also expressed an interest in being a possible placement option for
Grace. The Division, however, was concerned that Jill was not supporting
Nancy, as Nancy stated her mother made her feel uncomfortable, and Jill had an
outburst in court where she cursed and yelled at a caseworker.
A-1316-18T4
12
Throughout November and December 2015, Nancy and Robert remained
unemployed, and Nancy was living with Jill. On December 10, 2015, the
Division transported Nancy to a psychiatric evaluation with Sonia Oquendo,
M.D. Dr. Oquendo recommended that Nancy be referred to a psychiatrist for
regularly scheduled appointments, receive medication treatment, individual
psychotherapy, undergo a substance abuse evaluation, and attend parenting
classes. Nancy and Robert attended an intake at ISP that December and signed
up to participate in a parenting group, counseling, and supervised visitation with
Grace, which they attended once a week.
With respect to visitation, Nancy and Robert attended all scheduled
supervised visits that December where they had mostly positive interactions
with Grace. Beginning in 2016, however, Nancy and Robert started
experiencing difficulty with their visits. Nancy and Robert fought during one
visit with Grace, and during a different visit, Nancy pushed Robert after he asked
her to watch Grace while he went to retrieve something. By the end of 2016,
ISP wanted to end supervised visitation at their facility because of Nancy and
Robert's inability to successfully co-parent which prevented them from
benefitting from the program. ISP also noted that Nancy and Robert often
clashed with one another, did not show up with appropriate childcare products
A-1316-18T4
13
for Grace, were frequently late, or failed to show up at all to their supervised
visits with Grace even after she had already been transported.
Throughout 2017, Nancy and Robert were again regularly late, or failed
to show up at all, to a number of visits with Grace. The Division, accordingly,
implemented a twenty-four-hour confirmation policy but Nancy and Robert,
nevertheless, continued to miss scheduled visits. The inconsistent appointments
persisted through the year and began to have noticeably negative effects on
Grace.
For example, Robert and Nancy arrived one hour late to a visit with Grace
only after giving the visit supervisor multiple excuses over the phone about their
tardiness. Grace was frustrated and cried during the hour that they were not at
the visit. Additionally, they failed to attend a visit after Grace was already taken
to a local fast food restaurant. When the caseworker attempted to leave with
Grace after waiting for their arrival, Grace began to cry and did not want to leave
without seeing them.
Though Nancy and Robert attended all scheduled visits in February 2018,
their visits were similarly sporadic throughout the remainder of 2018, which
continued to negatively affect Grace. For example, before she was transported
to an April 2018 visit, Grace grew upset that she had to leave her resource
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14
mother and asked the resource mother to go with her. In June 2018, Robert also
showed up an hour late to a visit with his new girlfriend, and hurriedly played
with Grace staying for only fifteen minutes. After Robert walked out of the
visit, Grace stood by the window crying as she watched Robert and his girlfriend
sit in their car for an additional five minutes before leaving. From July until
September 2018, Nancy and Robert continuously missed visits, showed up late,
and failed to call in advance to confirm their attendance.
In addition to the aforementioned issues regarding Nancy and Robert's
consistent visitation with Grace, the Division became concerned because
between January and June 2016, Nancy was not attending school consistently.
Furthermore, by February 2016, Nancy and Robert had only participated in two
parenting sessions even though they should have completed four weeks of
classes at that point.
In February 2016, Robert also attended a psychological evaluation with
Jamie Gordon-Karp, Psy.D., where he stated that he was not opposed to corporal
punishment. Dr. Gordon-Karp recommended that Robert attend individual
therapy, secure housing and employment, participate in a Fatherhood Program,
continue to visit with Grace and attend a psychiatric evaluation. As of April
2016, Nancy and Robert had not completed a parenting program.
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15
In August 2016, Nancy and Robert's second child died after being born
premature. A month later, the Division learned that Nancy and Robert were
smoking marijuana, so a caseworker asked them to provide a urine sample for
drug testing. Both samples were positive, with Robert testing with high levels,
and Nancy with low levels.
As of October 2016, Nancy was attending counseling and visitation at ISP,
but had missed four therapy sessions. Robert never began attending counseling
at ISP, and only attended visitation with Grace. The Division reported, however
that Nancy was not making herself consistently available for therapy despite
several attempts by her therapy caseworker to contact her. Based on their lack
of progress, a caseworker told Nancy and Robert that the Division was going to
request the permanency plan be changed to termination of parental rights
followed by adoption.
After both Robert and Nancy missed several appointments to address their
substance abuse issues in the first half of 2017, Nancy finally began consistently
attending a treatment center for substance abuse services in May of that year.
The following month, the Division referred Robert and Nancy to another
parental fitness evaluation with Jonathan H. Mack, Psy.D., which they both
attended.
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16
Dr. Mack concluded that Robert could only be a minimally effective
parent if he complied with substance abuse treatment recommendations,
completed substance abuse treatment, and tested negative for marijuana for at
least six months, and if he obtained steady employment and stable and
appropriate housing. Robert admitted to Dr. Mack that he was using marijuana
as recently as one month before the evaluation. Dr. Mack recommended that
Nancy participate in a drug rehabilitation program, obtain independent housing,
and find steady gainful employment.
As of August 2017, Nancy and Robert were scheduled to begin therapy,
parenting skills training, and a psychiatric assessment. While Nancy began to
comply with services, Robert was unable to receive services until he began
substance abuse treatment.
In September 2017, Nancy successfully completed her substance abuse
treatment and was discharged from the program. Robert, however, did not
comply with substance abuse services for the entirety of 2017, and was
discharged twice, once in June 2017 and once in September 2017, for non-
compliance. By December 2017, Nancy was living with Amy, and Robert and
Nancy were reporting that they were working at Amazon.
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17
The termination of parental rights trial was originally scheduled for May
2018, but in January 2018, a caseworker told the resource parents that they were
still looking to reunify Nancy and Grace. In January 2018, Nancy was attending
trauma-based therapy and parenting classes while residing with Amy. Nancy,
however, was still not prescribed any medication to address her depression, post-
traumatic stress, and panic disorders because she failed to obtain the proper
bloodwork. Nancy told a caseworker that her therapist stated that taking the
medication was a choice, and that she was having issues getting her medication
filled because of her lack of insurance. Nancy also stated that the therapist was
providing her with medication samples.
On January 3, 2018, David Brandwein, Psy.D., conducted a bonding
evaluation of Grace with her resource parents, Bill and Helen. During the
evaluation, Grace referred to Bill as "daddy" and to Helen as "mommy." Bill
and Helen interacted positively with Grace and played with her throughout the
entire evaluation.
As of February 5, 2018, Nancy was attending therapy regularly, living
with Amy, and reported to be motivated to reunify with Grace. Although Nancy
was continuing to attend therapy, she had still not completed her bloodwork to
begin receiving medication. A February 8, 2018 progress report revealed that
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Nancy missed a therapy session on January 17, 2018, because she was in the
hospital, but missed another one on January 31, 2018, for no excused reason. At
that time, Nancy still did not have medical insurance and failed to keep all of
her therapy appointments. Robert also began to attend therapy that February but
was only attending group sessions.
Nancy missed seven therapy appointments throughout May and June of
2018, and as of August 15, 2018, Nancy had not attended therapy services since
July 11, 2018. Nancy resumed therapy on August 15, 2018, and her provider
recommended that she attend therapy bi-weekly in hopes that it would encourage
her to attend more frequently.
On August 21, 2018, Barry Katz, Ph.D., conducted a psychological
evaluation of Nancy and a bonding evaluation of Nancy and Grace. During
Nancy's psychological evaluation, she admitted to having problems with anxiety
and substance abuse issues. Nancy denied that she was currently prescribed any
medications or that she had ever been prescribed medications. Nancy told Dr.
Katz that she was currently working as a cashier, but that she was training for
employment at Amazon. Nancy also told Dr. Katz that she was living with her
best friend and her best friend's family in a six-bedroom home where she would
A-1316-18T4
19
like Grace to move in with her. Additionally, Nancy stated that she planned to
move out with Grace to their own apartment by her birthday next year.
Nancy told Dr. Katz that it was unfair that she has been told she is unfit
to parent because she has never been given the chance to parent. Dr. Katz
testified at trial that Nancy demonstrated a weakness in the understanding of
child development. Additionally, Dr. Katz stated that Nancy likely does not
consistently engage in services because she does not understand that problems
exist. Dr. Katz also concluded that the Division provided appropriate services
for Nancy, but that she failed to comply fully.
Robert attended his psychological and bonding evaluation with Dr. Katz
the following day. Robert told Dr. Katz that he last worked in May 2018, and
that he stopped working due to not having stable transportation. Robert admitted
that Grace is bonded with her resource parents.
Dr. Katz testified that Robert knows and understands what is expected of
him to parent, but that Grace has an insecure attachment with him. In his report,
Dr. Katz stated that Robert has had "continued instability with income, stable
housing[,] and meeting [Grace's] needs." Additionally, Dr. Katz opined that
Robert has an underlying personality disorder that continues to affect Robert's
A-1316-18T4
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parenting. Dr. Katz concluded that his evaluation supports a permanency plan
of termination of parental rights followed by adoption.
At trial, the Division relied upon the testimony of three Division
caseworkers, and expert witness Dr. Brandwein. In supporting the Division's
request to terminate Nancy and Robert's parental rights, the Law Guardian
presented and relied upon the testimony of Dr. Katz. Both Nancy and Robert
testified at trial.
In a comprehensive and detailed 102-page written opinion, Judge Forrest
found the Division proved, by clear and convincing evidence adduced during
the four-day trial, all four prongs of N.J.S.A. 30:4C-15.1(a). This appeal
followed.
II.
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 one's children have been deemed 'essential,' 'basic civil rights . . . ,' and
'rights far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651 (1972) (internal citations omitted). "[T]he preservation and
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21
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. 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 effectuate these concerns,
the Legislature created a test for determining when a parent's rights must be
terminated in a child's best interests. 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
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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.
[See also A.W., 103 N.J. at 604-11.]
III.
A. Prong One
As to prong one, the court found that "[b]oth parents have shown that their
conduct places Grace in a position where she suffered harm and is at a risk of
harm." In this regard, the court concluded that due to "Nancy's and Robert's
failure to obtain stable employment, appropriate housing, attend visitation with
Grace consistently, engage in appropriate behavior with Grace and complete the
required services, Grace's safety, health or development have been and would
continue to be endangered by a parental relationship with Nancy and Robert."
These findings are amply supported by the record.
By way of example, Dr. Brandwein provided unrebutted expert testimony
that although Grace enjoyed her time with Robert and Nancy, she did not look
to them to fulfill her needs. Robert also told Dr. Brandwein that he had not
complied with substance abuse evaluations or treatments since January 2018.
Dr. Brandwein concluded in his report that severing the relationship between
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23
Grace and her resource parents was "clinically contraindicated" as it would lead
Grace to endure "psychological harm in the form of poor psychosocial,
behavioral, and emotional outcomes" and would "break [Grace's] first bond with
adult caregivers and leave [her] psychologically adrift, without a stabl e
caregiver to meet her physical and emotional needs."
Dr. Katz similarly stated in his report that when Nancy and Robert failed
to attend or showed up late for visits, which happened frequently, Grace
ultimately suffered. As noted, since Grace's removal, both parents' visits with
Grace were wholly inconsistent, which led to Grace's visible distress during
visits when they were late or failed to attend and caused Grace to eventually
suffer separation anxiety when she would leave her resource parents. In
addition, Dr. Katz stated that neither Nancy nor Robert would be able to
overcome their personality deficits to parent Grace safely and consistently. Dr.
Katz feared that if Grace returned to Nancy or Robert, "the parental
responsibility and stress would overwhelm each biological parent and result in
increased risk of neglect and additional emotional trauma for [Grace]." Dr. Katz
concluded that termination of parental rights "would do more good than harm
for [Grace]."
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As the trial court noted, the Division need not wait for a child to suffer
actual physical harm for purposes of prong one, which focuses on
"endanger[ment]" to the child. See N.J.S.A. 30:4C-15.1(a)(1); In re
Guardianship of D.M.H., 161 N.J. 365, 383 (1999) ("a delay in establishing a
stable and permanent home" can constitute endangerment that "will cause harm"
to a child); New Jersey Div. of Youth & Family Servs. v. A.G., 344 N.J. Super.
418, 440 (App. Div. 2001) ("Neither [parent] has harmed the child, nor is there
any evidence to show that they would intentionally harm the child. But that is
not the test."). The court granted multiple extensions to allow Nancy and Robert
additional time to resolve the issues resulting in Grace's removal, however, both
parents failed to comply with the Division's appropriate requirements that would
permit Grace to be safely reunified with them. Thus, we are satisfied that the
Division established prong one clearly and convincingly.
B. Prong Two
As is often the case, the findings regarding the first prong informed and
overlapped the second. See N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006). In concluding that the Division clearly and
convincingly established prong two, the court explained:
This Court finds that it is evident that Nancy and Robert
are unwilling or unable to nurture and care for Grace.
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Nancy and Robert have shown this through their
inability to remediate their mental health issues, learn
how to properly parent, engage in stable employment,
and find appropriate and safe housing. Thus, prong two
of the best interest of the child standard is satisfied with
respect to Nancy and Robert, as they are unwilling or
unable to eliminate the harm facing their child as well
as are unable or unwilling to provide a safe and stable
home for their child. Furthermore, delaying permanent
placement will add to the harm that the child has
already suffered, as Grace has been in placement since
November 4, 2015 and deserves permanency, which
can be achieved with their current resource home.
Moreover, Dr. Brandwein and Dr. Katz agreed as to this
and there is no other expert opinion to the contrary.
Accordingly, this Court is firmly convinced by clear
and convincing evidence, that the Division has proven
prong two.
These findings are also supported by the record. Indeed, even before
Grace was born, the Division was involved with Nancy out of concerns about
her mental health, as she had self-harming tendencies. Neither Nancy nor
Robert were able to obtain steady employment or stable housing throughout
Grace's entire life. In this regard, for three years prior to the guardianship trial,
Nancy and Robert failed to obtain stable employment necessary for appropriate
housing and have failed to fully comply with services necessary for
reunification. As Dr. Brandwein concluded, severing Grace's relationship with
Bill and Helen would lead to enduring psychological harm in the form of poor
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psychosocial, behavioral, and emotional outcomes which neither Nancy nor
Robert can mitigate.
Further, as noted, neither Nancy nor Robert consistently attended visits on
time. Additionally, the Division was unable to provide Robert and Nancy with
housing assistance because they never provided the Division with necessary
proof of stable employment. Dr. Brandwein testified that both Nancy and Robert
are dismal candidates to parent Grace and reported that no expert who has
evaluated Nancy and Robert has recommended reunification due to Nancy and
Robert's mental health, substance abuse related issues, and housing concerns.
Dr. Brandwein also stated that Nancy has not made significant changes over a
long period of time, and that she has not resolved her long history of mental
health issues or her housing and employment instability. With respect to Robert,
Dr. Brandwein believed that he has not prioritized Grace and her needs
throughout the litigation, and instead has been focused on his own chaotic
lifestyle.
Dr. Brandwein further testified that Grace has a secure and significant
bond with Helen and Bill, as Grace now depended on them for physical and
psychological safety, and comfort when she needed something. As to Nancy
and Robert, Dr. Brandwein also testified that "those same bonds didn't develop
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27
for either parent," likely due to the inconsistency in visits and the extended
period of time apart from their care. Given that neither Nancy nor Robert have
been able to mitigate the harm facing Grace, obtain steady employment or stable
housing over the course of her entire life, the record firmly supports the court's
finding that prong two was established by clear and convincing evidence.
C. Prong Three
As to the third prong, the court found that "the Division has made
numerous and continuous efforts to provide services to Nancy and Robert in
order to reunify them with Grace." Again, the record amply supports this finding
as the Division provided defendants with psychological evaluations, parental
fitness evaluations, psychiatric evaluations, parenting classes, individual
therapy, bus passes for visitations, transportation to their evaluations , offers to
participate in a Mommy and Me Program, substance abuse evaluations and
treatment, and one on one meetings with caseworkers. Nancy was also provided
with a therapy caseworker, a school-based parenting and therapy program that
the Division helped start at her school, and life skills training. Similarly, the
Division provided Robert with a referral to a fatherhood program.
Prong three also requires the court to consider alternatives to termination
of parental rights. Since the resource parents were willing to adopt Grace,
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28
kinship legal guardianship was not available as an option in this case.
Independent living was also not feasible because, as a Division caseworker
testified, such an arrangement requires that the parents also demonstrate that
they are responsible enough to handle money, are psychologically stable enough
to deal with living alone, and must comply with other recommended services
that the Division requires. The record consistently shows that both parents
failed to meet that standard as they continuously failed to comply with services.
Also as noted, Nancy rejected Mommy and Me programs.
Further, contrary to Robert's argument that the Division did not properly
investigate alternative caretakers, the record supports the court's determination
that the Division met its burden, as the Division assessed multiple family
members as potential placement options for Grace including Jill, Tammy, and
Tammy's cousin, among others, after exhaustively attempting to reunify Grace
with Nancy and Robert.
The Division ruled out both the paternal and maternal grandmothers.
Robert's mother Tammy had a substantiated history with the Division and could
not care for Grace unsupervised. Nancy's mother Jill expressed an interest in
being a possible placement option for Grace, however, Nancy stated that she
made her feel uncomfortable, and Jill had yelled and cursed at a Division
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29
caseworker in court. The Division also provided a rule-out letter to Nancy's
sister, Amy, who was evaluated as a potential placement, but, similar to Jill, she
resided in a one-bedroom apartment.
With respect to the paternal grandfather, both Nancy and Robert were
living with him while he was being assessed, preventing Grace from being
placed in the home. Furthermore, Robert indicated in his psychological
evaluation with Dr. Brandwein that he could not be reunified with Grace in his
father's home because "his father is older and cannot care for [Grace] while he
works" and that though his niece and nephew lived at his father's home, "this
was not an option for [Grace]." Robert also indicated to Dr. Brandwein that his
grandmother lives in his father's home, but she was not suitable for pla cement
due to having a stroke and not being able to take care of Grace.
The Division also contacted Robert's cousin to determine if she was a
suitable placement for Grace. The record indicates that a Division supervisor
initially spoke to Robert's cousin soon after Grace was removed from Nancy's
care regarding concerns about a final restraining order she filed against her
mother, as well as an active warrant from 2010 that remained unresolved.
Robert's cousin told the supervisor that she would call her back once she
resolved the issues, but there is no evidence in the record to suggest that she
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30
contacted the Division after that conversation. Furthermore, according to
testimony from a Division caseworker at trial, Robert's cousin was never present
at any of the visits with Grace she supervised, and Robert did not reintroduce
her as a potential placement until two weeks prior to trial. Accordingly, the
court's finding that the Division proved prong three by clear and convincing
evidence is firmly supported by the record.
D. Prong Four
In considering the fourth prong, the trial judge found that "there is no
realistic likelihood that [Nancy or Robert] will ever be able to safely and
appropriately care for their child now or in the foreseeable future." In this regard
the court explained:
[Nancy and Robert] are clearly unable to provide
[Grace] with a safe and stable home and the
permanency she so desperately needs and deserves.
The termination of the parental rights of [Nancy and
Robert] would certainly not result in more harm than
good for [Grace]. Based on all the evidence and
testimony presented, there is no probable expectation in
the ability of [Nancy or Robert] to make the changes
necessary to provide their child with a safe and stable
home given their substance abuse and mental health
issues, and their inability to obtain stable housing and
employment. Moreover, Dr. Brandwein and Dr. Katz
both agree as to this and there is no other expert opinion
to the contrary.
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31
These findings too are fully supported by the record. When asked
"[w]hich relationship is stronger [between] the relationship Grace has with the
resource parents or with her biological parents," Dr. Katz identified the
relationship with Grace's resource parents. Dr. Katz also testified that delaying
permanency would harm Grace in several ways, and that Grace had an "insecure
attachment" to Robert and Nancy, which meant that it would be "problematic"
for her to rely on them as primary caregivers.
Dr. Katz testified that termination of parental rights would not do more
harm than good, as the "lack of consistency that [Grace] is having now with the
visitation . . . [is] one of the psychosocial stressors . . . leading to insecure
attachments" and the court would be traumatizing Grace by "severing her
relationship to her known primary nurturing figures." Dr. Katz emphasized in
his testimony that the court would then be "transitioning [Grace,] who would be
. . . traumatized[,] to the care of parents who have shown deficits in parenting,
even minimal parenting ability, for over three years . . . who have not met
[Grace's] needs under the best of circumstances."
Dr. Brandwein characterized Robert and Nancy as "dismal" candidates for
reunification with Grace. Dr Brandwein testified that it would place Grace's
physical and emotional safety at risk to return her to Nancy's care. He also
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32
testified that Grace did not look to Robert to fulfill her needs. Rather, Dr.
Brandwein expressed fear that if Grace was reunified with Robert, she would
suffer physical and emotional harm. He noted that there have been numerous
services offered to Nancy and Robert over a three-year period and Dr.
Brandwein "[does not] know that there are any other services right now or in the
foreseeable future, that would result in different outcomes because it does not
seem . . . that [Nancy and Robert] want to make changes in their lives, that would
support [Grace] being placed with them."
He also testified that, "given the fact that [Grace] has been in foster care
for so long and, has developed this rather significant positive bond with her
resource parents, [her] best interests are remaining there." Dr. Brandwein
explained that the risk of harm from severing Grace's relationship with Nancy
and Robert was "infinitesimal," as Grace "does not look for them to fulfill
parental functions on a consistent basis" and concluded, similar to Dr. Katz, that
termination of parental rights "would clearly do more good than harm."
IV.
We also briefly address Nancy's argument that Grace was unjustifiably
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33
removed from her custody on November 4, 2016. 4 Nancy argues on appeal that
the initial Dodd removal was unwarranted because "the facts clearly show that
there was no danger to the baby, imminent or otherwise," and that the court erred
in upholding the Dodd removal "without the requisite proof of imminent danger
and without competent evidence or factual findings indicating abuse or neglect."
We disagree.
N.J.S.A. 9:6-8.29 allows for emergency removal without court order if
there is imminent danger to the child's life, safety, or health, and there is
insufficient time to apply for a court order. Within two court days of emergency
removal, the Division must file a complaint pursuant to N.J.S.A. 9:6-8.30(b),
along with an order to show cause. Pursuant to N.J.S.A. 9:6–8.31(a), the "safety
of the child shall be of paramount concern" at the initial hearing. "[I]f the court
finds that continued removal is necessary to avoid an ongoing risk to the child's
life, safety, or health, it shall affirm the removal of the child to an appropriate
place." N.J.S.A. 9:6-8.31(b).
Here, the record shows that Grace was properly removed because the
Division provided sufficient evidence to substantiate the claims in its complaint
4
We note that Nancy's merits brief fails to include a point heading addressing
this specific argument as required by Rule 2:6-2(a)(6). We glean this argument
from the body of her brief. Robert does not raise this issue on appeal.
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34
that Nancy's repeated failure to comply with court-ordered services placed Grace
in an environment where her safety and health were in imminent danger.
More specifically, Nancy's refusal to enter a Mommy and Me program,
her non-compliance with services, and concerns regarding her mental health
were significant and legitimate concerns warranting the Division's actions.
Nancy's behavior, both leading up to the Grace's birth and immediately after,
demonstrate her continued non-compliance with recommendations and
directions that the Division deemed necessary for Grace to remain in Nancy's
care. Thus, the record amply supports the court's determination that Grace's
removal was necessary to "avoid any ongoing risk to the life, safety, and the
health of [Grace]" due to Nancy's "noncompliance with the services that were
required in order to ensure that [she] was prepared to take care of [Grace]."
V.
After our thorough consideration of the record, including the positive
collaterals, we conclude that the trial judge's findings were clearly and
convincingly supported by the evidence and are entitled to our deference. N.J.
Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012); Cesare v.
Cesare, 154 N.J. 394, 413 (1998). We therefore affirm substantially for the
reasons set forth by Judge Forrest in his well-reasoned and thoughtful written
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35
opinion. To the extent we have not specifically addressed any of defendants'
remaining arguments it is because we find them to have insufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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