NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.M.J and B.J.R

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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5026-18T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

L.M.J.,

Defendant-Appellant,

and

B.J.R.,

Defendant.
____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF I.M.J.-R.,

a Minor.
_____________________________

Submitted March 30, 2020 – Decided April 27, 2020

Before Judges Fasciale and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FG-11-0017-19.

Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Carol A. Weil, Designated Counsel, on the
brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Joann Marie Corsetto, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Rachel E. Seidman,
Assistant Deputy Public Defender, of counsel and on
the brief).

PER CURIAM

Defendant L.M.J. (the mother) appeals from a June 28, 2019 order

terminating her parental rights to her daughter I.M.J.-R (the child), born in 2017,

and awarding guardianship to the Division of Child Protection and Permanency

(the Division). Judge Rodney Thompson presided over trial, entered judgment,

and rendered a forty-six-page written opinion.

The mother raises the following points on appeal:

POINT I
THE TRIAL [JUDGE] ERRED BY TERMINATING
THE MOTHER'S PARENTAL RIGHTS BECAUSE
ALTERNATIVES TO TERMINATION AND

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ADOPTION WERE NOT APPROPRIATELY
CONSIDERED BY [THE DIVISION] OR BY THE
[JUDGE].

POINT II
THE TRIAL [JUDGE] ERRED BY TERMINATING
THE MOTHER'S PARENTAL RIGHTS BECAUSE
THE REQUIREMENTS OF PRONG THREE WERE
NEVER MET: [THE DIVISION] DID NOT PROVIDE
REASONABLE SERVICES TO THE MOTHER.

POINT III
THE TRIAL [JUDGE'S] LEGAL CONCLUSION
THAT [THE DIVISION] HAD SATISFIED THE
FIRST AND SECOND PRONGS OF THE BEST
INTERESTS TEST WAS ERROR.

POINT IV
THE JUDGMENT TERMINATING THE MOTHER'S
PARENTAL RIGHTS MUST BE REVERSED
BECAUSE [THE DIVISION] FAILED TO PROVE
THAT TERMINATION OF PARENTAL RIGHTS
WOULD NOT DO MORE HARM THAN GOOD.

We disagree and affirm substantially for the reasons given by the judge.

We begin our discussion with the well-settled legal framework regarding

the termination of parental rights. 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.

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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 to determine when it is

in the child's best interest to terminate parental rights. To terminate parental

rights, N.J.S.A. 30:4C-15.1(a) requires the Division to prove four prongs 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 [her] 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 [judge] has considered
alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more
harm than good.

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See also A.W., 103 N.J. at 604-11. 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. "The considerations involved in determinations of parental fitness are

'extremely fact sensitive' and require particularized evidence that address the

specific circumstances in the given case." Ibid. (quoting In re Adoption of

Children by L.A.S., 134 N.J. 127, 139 (1993)).

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 [judge'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 that support 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.

of Am., 65 N.J. 474, 483-84 (1974)). "[T]he conclusions that logically flow

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from those findings of fact are, likewise, entitled to deferential consideration

upon appellate review." R.L., 388 N.J. Super. at 89.

II.

We now turn to the mother's argument that the judge erred in finding that

the Division proved each of the four prongs under the best interests test by clear

and convincing evidence. We disagree with her contentions, and as to the four

prongs, we affirm substantially for the reasons given by the judge. We add the

following.

The first prong requires the Division to prove that "[t]he child's safety,

health, or development has been or will continue to be endangered by the

parental relationship[.]" N.J.S.A. 30:4C-15.1(a)(1). "Although a particularly

egregious single harm can trigger the standard, the focus is on the effect of harms

arising from the parent-child relationship over time on the child's health and

development." K.H.O., 161 N.J. at 348. "[T]he attention and concern of a caring

family is 'the most precious of all resources.'" In re Guardianship of D.M.H.,

161 N.J. 365, 379 (1999) (quoting A.W., 103 N.J. at 613). "[W]ithdrawal of

. . . solicitude, nurture, and care for an extended period of time is in itself

a harm that endangers the health and development of the child." Ibid.

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The judge found that the child's "safety, health or development has been

and will continue to be endangered by the parental relationship with [the

mother]." The judge found there were unsanitary living conditions, the mother

was unable to care for the child, and the mother suffered from developmental

and learning disabilities. The mother fed the child solid food—before the child

was able to digest it—while the child was lying on her back, despite being

advised that the child could choke. Although the mother contends that she did

not actually harm the child, the law is clear that courts need not wait until a child

is actually irreparably impaired by the parental relationship. D.M.H., 161 N.J.
383. The mother's cognitive difficulties placed the child at significant risk of

harm because she was unable to safely parent the child, which the

uncontroverted expert testimony corroborated.

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 judge must

consider whether the parent cured and overcame the initial harm that endangered

the child and whether the parent is able to continue the parental relationship

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without recurrent harm to the child. K.H.O., 161 N.J. at 348-49. To satisfy its

burden, the Division must show the child faces continued harm because the

parent is unable or unwilling to remove or overcome the harm. N.J. Div. of

Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 483 (App. Div. 2012).

The first and second prongs are related, and often, "evidence that supports one

informs and may support the other as part of the comprehensive basis for

determining the best interests of the child." D.M.H., 161 N.J. at 379.

"Parental unfitness may also be demonstrated if the parent has failed to

provide a 'safe and stable home for the child' and a 'delay in permanent

placement' will further harm the child." K.H.O., 161 N.J. at 352 (quoting

N.J.S.A. 30:4C-15.1(a)(2)). "Keeping [a] child in limbo, hoping for some long[-

]term unification plan, would be a misapplication of the law." N.J. Div. of Youth

& Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001).

As to prong two, the judge found the mother was unwilling and unable to

provide the child with a safe and stable home. Over the course of two years, the

mother failed to remediate the problems that led to the child's removal.

Although the mother visited with the child, the mother failed to demonstrate

adequate parenting skills, such as changing the child's diaper, detecting verbal

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clues, and remaining focused. The evidence demonstrated that there was no

indication that the mother could overcome the problems that led to the removal.

As to prong three, N.J.S.A. 30:4C-15.1(a)(3) requires the Division to

make "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 to "consider[] alternatives to termination of parental rights." The judge

found the Division provided defendants with a plethora of services, which we

need not repeat here.

The judge found there were no alternatives to termination of parental

rights by ruling out the maternal grandparents, who presented with multiple

medical challenges. The Division also provided extensive services to the

mother, including transportation to and from supervised visits with the child ;

psychological, psychiatric, neurological, and bonding evaluations; six hours a

week of therapeutic programs and counseling that targeted parenting skills; and

one-on-one two-hour parenting classes. Indeed, the mother requested the child

remain with her resource parents.

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The fourth prong of the best interests test requires a determination that the

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

30:4C-15.1(a)(4). The judge must ask whether "after considering and balancing

the two relationships, the child will suffer a greater harm from the termination

of ties with her natural parents than from the permanent disruption of her

relationship with her 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." L.J.D., 428 N.J.

Super. at 491-92. "Ultimately, a child has a right to live in a stable, nurturing

environment and to have the psychological security that [her] most deeply

formed attachments will not be shattered." N.J. Div. of Youth & Family Servs.

v. F.M., 211 N.J. 420, 453 (2012). "A child cannot be held prisoner of the rights

of others, even those of his or her parents. Children have their own rights,

including the right to a permanent, safe and stable placement." N.J. Div. of

Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004).

As to the fourth prong, the judge concluded that termination of parental

rights would not do more harm than good, and that the child would not suffer

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enduring harm if the judge terminated the parental rights. The judge also found

the child was thriving in her current placement.

Affirmed.

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