NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.W.,1 and T.T.

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RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2487-20

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

K.W.,1

Defendant-Appellant,

and

T.T.,

Defendant.
_________________________

IN THE MATTER OF THE
GUARDIANSHIP OF
M.C., a minor.
_________________________

Submitted November 29, 2021 – Decided December 14, 2021

1
We use initials to protect the privacy of the parties and minor child. R. 1:38-
3(d)(15).
Before Judges Fasciale and Firko.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FG-03-0009-21.

Joseph E. Krakora, Public Defender, attorney for
appellant (Phuong Dao, Designated Counsel, on the
briefs.)

Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Nicholas Dolinsky, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Todd Wilson, Designated
Counsel, on the brief).

PER CURIAM

Defendant K.W. (the mother) appeals from an April 16, 2021 order

terminating her parental rights to her son, M.C. (the child) born in 2018, and

awarding guardianship to the Division of Child Protection and Permanency (the

Division). The Division removed the child—due to domestic violence,

marijuana use, and parental unfitness—when he was nine months old and

initially placed him with F.V. and E.V., and later R.P. Judge Richard L.

Hertzberg presided over the trial, entered the judgment, and rendered a

thoughtful and comprehensive decision.

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On appeal, the mother argues:

POINT I

BECAUSE [THE DIVISION] FAILED TO PROVE BY
CLEAR AND CONVINCING EVIDENCE THAT
[THE MOTHER]'S PARENTAL RIGHTS TO [THE
CHILD] SHOULD BE TERMINATED, THE TRIAL
COURT'S ORDER TERMINATING [HER]
PARENTAL RIGHTS MUST BE VACATED.

(1) The Trial Court Erred When It Found That [The
Mother]'s Parental Relationship Presented A
Substantial Risk Of Harm To [The Child].

(2) The Trial Court Was Wrong When It Found That
[The Mother] Was Unable Or Unwilling To Mitigate
The Harm.

(3) The Trial Court Erred In Finding That The Division
Provided Reasonable Services Under Prong Three.

(4) The Trial Court Erred When It Found That
Termination Of Parental Rights Was In The Child's
Best Interest.

We disagree and affirm substantially for the reasons given by the judge in his

oral opinion. We add these remarks.

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) (citations omitted). That

A-2487-20
3
right is not absolute. N.J. Div. of Youth & Fam. 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. See N.J. Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The

Legislature created a test to determine when it is in the child's best interests to

terminate parental rights to effectuate these concerns. 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
alternative to termination of parental rights; and

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

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See 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)). Adhering to these standards, the

judge concluded—relying on the credible evidence the Division produced—that

it was in the child's best interests to terminate the mother's parental rights. The

Law Guardian seeks affirmance.

Regarding prong one, the mother argues the Division failed to meet its

evidentiary burden. The mother contends the judge erred in holding the Division

satisfied prong one "when [he] found that [her] marijuana use created a

substantial risk of harm to [the child]." She avers "the evidence shows that [the

Division] did not remove [the child] from [her] care due to drug use" and the

Division "never substantiated [her] for any abuse or neglect." We disagree.

The first prong of the best interests test requires the Division demonstrate

that the "child's safety, health, or development has been or will continue to be

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endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1); see

K.H.O., 161 N.J. at 352. The concern is not only with actual harm to the child

but also the risk of harm. In re Guardianship of D.M.H., 161 N.J. 365, 383

(1999) (citing A.W., 103 N.J. at 616 n.14). The focus is not on a single or

isolated event, but rather 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. However, a judge does not need to wait "until a child is actually

irreparably impaired by parental inattention or neglect" to find child

endangerment. D.M.H., 161 N.J. at 383 (citing A.W., 103 N.J. at 616 n.14).

The Court has explained a parent's withdrawal of nurture and care for an

extended period is a harm that endangers the health of a child. Id. at 379 (citing

K.H.O., 161 N.J. at 352-54). When children "languish in foster care" without a

permanent home, their parents' "failure to provide a permanent home" may itself

constitute harm. Id. at 383 (second quotation citing N.J. Div. of Youth & Fams.

Servs. v. B.G.S., 291 N.J. Super. 582, 591-93 (App. Div. 1996)).

At the outset, defendant incorrectly argues that the Division never made a

finding of abuse or neglect. The Division is not required to pursue an abuse and

neglect finding as a condition for terminating a defendant's parental rights. N.J.

Div. of Youth & Fam. Servs. v. A.P., 408 N.J. Super. 252, 259 (App. Div. 2009).

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Similarly, the mother's argument drug use did not cause or create a risk of actual

harm to the child fails because "that is not the test." N.J. Div. of Youth & Fam.

Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001) (citing N.J.S.A.

30:4C-15.1(a)). Instead, the appropriate inquiry is "whether the child's safety,

health or development will be endangered in the future and whether the parents

are or will be able to eliminate the harm." Ibid. We note that on March 14,

2019, a Dodd removal of the child was conducted by the Division. 2

Here, the judge found that the parental relationship harmed the child by

subjecting him to "domestic violence exhibited by . . . [the mother's] impulsive

and explosive behaviors." The judge explained the mother's shocking lack of

insight as to the ramifications of violence in her life and its "relevance to

parenting" has already "put her child in harm's way." The record shows the

mother habitually denied domestic violence occurred and that she lied about her

denials, as both a victim and a perpetrator. Many of the mother's domestic

violence incidents entailed police involvement.

2
"A 'Dodd removal' refers to the emergency removal of a child from the home
without a court order, pursuant to the Dodd Act, which, as amended, is found at
N.J.S.A. 9:6-8.21 to -8.82." N.J. Div. of Youth & Fam. Servs. v. N.S., 412 N.J.
Super. 593, 609 n.2 (App. Div. 2010).
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The judge detailed multiple other examples of how the mother presented

a substantial risk of harm to the child. She missed at least eight months of drug

screen testing and when questioned about it, the mother blamed lack of

transportation despite testimony that the Division provided bus passes, and she

had access to a car. In addition, the mother repeatedly tested positive for

marijuana, was discharged from substance abuse programs, and abandoned the

child for a week. Moreover, in June 2019, the mother purportedly threatened to

burn down F.V. and E.V.'s home because F.V. was planning to have a birthday

party for the child. 3

The mother's continued volatility and substance use indicate unabated

behavior, which may cause "continuing harm by depriving the[] child[] of

necessary stability and permanency." N.J. Div. of Youth & Fam. Servs. v. T.S.,

417 N.J. Super. 228, 245 (App. Div. 2010) (citation omitted). While the mother

made some progress at times, the judge was not required to continue "protracted

efforts for reunification," N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J.

Super. 76, 111 (App. Div. 2004) (citations omitted), because "[c]hildren must

3
The record shows F.V. and E.V. obtained a temporary restraining order against
the mother and subsequently requested the child be removed from their care due
to concerns over the mother's threats. The child was later placed with another
resource parent, R.P.
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not languish indefinitely in foster care while a birth parent attempts to correct

the conditions that resulted in an out-of-home placement." N.J. Div. of Youth

& Fam. Servs. v. S.F., 392 N.J. Super. 201, 209-10 (App. Div. 2007).

As the judge noted, "after two years in multiple placements, . . . [the]

young [child] is at risk for emotional damage were permanency further delayed."

The experts who testified failed to see the mother maturing in the foreseeable

future. There is no basis for us to disturb the judge's finding that the Division

satisfied prong one by clear and convincing evidence.

The second prong of the best interest determination "in many ways,

addresses considerations touched on in prong one." N.J. Div. of Youth & Fam.

Servs. v. F.M., 211 N.J. 420, 451 (2012). Evidence supporting the first prong

may also support the second prong "as part of the comprehensive basis for

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

K.H.O., 161 N.J. at 348-49). This prong "relates to parental unfitness," K.H.O.,

161 N.J. at 352, and "the inquiry centers on whether the parent is able to remove

the danger facing the child." F.M., 211 N.J. at 451 (citing K.H.O., 161 N.J. at
352).

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The Division can satisfy this inquiry by showing the parent or parents

cannot provide a safe and stable home and that the child or children will suffer

substantially from a lack of stability and permanent placement. N.J. Div. of

Youth & Fam. Servs. v. M.M., 189 N.J. 261, 281 (2007) (citing K.H.O., 161 N.J. at 363). Because the Legislature placed "limits on the time for a birth parent

to correct conditions in anticipation of reuniting with the child[ren][,] [t]he

emphasis has shifted from protracted efforts for reunification with [the] birth

parent[s] to an expeditious, permanent placement to promote the child's well -

being." C.S., 367 N.J. Super. at 111 (citing N.J.S.A. 30:4C-11.1; D.M.H., 161 N.J. at 385; K.H.O., 161 N.J. at 357-59).

The mother asserts the judge "erroneously found that [she] did not comply

with the recommended services and denied her problems." She further contends

the judge's conclusion assumes facts and evidence not significantly supported

by the record and failed to consider facts favorable to her. We are unpersuaded.

The record clearly shows the mother was non-compliant with services both

before and after the child's removal despite the Division's efforts to stabilize the

family. Programs such as Oaks, Solstice, and SODAT repeatedly discharged the

mother for her resistance to help and refusal to participate in services. And, the

mother categorically refused to accept and address the domestic violence

A-2487-20
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recurring in her life with professionals and Division offered services. Instead,

the mother gave excuses for each contact sheet and police report dealing with a

domestic violence issue, claiming it was inaccurate or a misunderstanding.

When analyzing the second prong, a judge must also consider the harm

the child suffers by delaying permanent placement and the potential future harm

that would arise from severing a bond with a resource parent. M.M., 189 N.J.

at 283 (citing N.J.S.A. 30:4C-15.1(a)(2)); see, e.g., N.J. Div. of Youth & Fam.

Servs. v. R.G., 217 N.J. 527, 561 (2014). While the mother made some

improvement, it was insufficient progress toward familial stability because of

her inconsistent treatment and lack of motivation.

As we have stated, "[k]eeping the child in limbo, hoping for some long

term unification plan, would be a misapplication of the law." A.G., 344 N.J.

Super. at 438 (citing In re P.S., 315 N.J. Super. 91, 121 (App. Div. 1998)). Here,

the judge concluded the mother was not likely to become a viable parent in the

foreseeable future because she is unamenable to change. Based on the evidence,

the judge found the child "is likely to suffer severe emotional harm were that

bond [with the resource parent] severed. The same is not the case for [the

mother]. The resource parent is capable of mitigating disruption to [the child]

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while [the mother] lacks that capacity." We therefore find no merit to the

mother's contentions as to prong two.

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

[judge] 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." M.M., 189 N.J. at 281 (internal quotation marks

omitted) (citation omitted).

The mother argues the Division failed to show by clear and convincing

evidence that it provided reasonable services with the goal toward reunification

and "simply ignored [her] request for a new therap[ist]." "[A]n evaluation of

the efforts undertaken by [the Division] to reunite a particular family must be

done on an individualized basis." D.M.H., 161 N.J. at 390 (citing L.A.S., 134 N.J. at 139). The evaluating court must also consider "the parent's active

participation in the reunification effort." Ibid. (citations omitted). In any

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situation, "[t]he services provided to meet the child's need for permanency and

the parent's right to reunification must be 'coordinated' and must have a 'realistic

potential' to succeed." N.J. Div. of Youth & Fam. Servs. v. L.J.D., 428 N.J.

Super. 451, 488 (App. Div. 2012) (quoting N.J. Div. of Youth & Fam. Servs. v.

J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002)).

This requires the Division to "encourage, foster and maintain the parent -

child bond, promote and assist visitation, inform the parent of the child's

progress in foster care and inform the parent of the appropriate measures he or

she should pursue . . . to . . . strengthen their relationship." R.G., 217 N.J. at
557 (alterations in original) (quoting D.M.H., 161 N.J. at 390). What constitutes

reasonable efforts varies with the circumstances of each case. D.M.H., 161 N.J.

at 390-91. However, the Division is not required to be successful in their efforts

to provide services, D.M.H, 161 N.J. at 393, or to provide services at all when

it is not in the children's best interests. See L.J.D., 428 N.J. Super. at 488.

In the matter under review, the judge credited the Division's efforts to

provide the mother with services and referrals for psychological and bonding

evaluations, supervised visitation with the child, substance abuse assessments

and treatment, parenting skills classes, domestic violence counseling, batterer's

intervention, and transportation. The mother claims she had "been asking for a

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new therapist for over a year" due to lack of progress with her treating therapist.

But the record reflects her therapist's concerns about continuing therapy because

of the mother's lack of commitment to progress and ignoring her therapist's

referral to a psychiatrist. We are not convinced that the Division's failure to

assign the mother a new therapist or psychiatrist was in derogation of prong

three because the mother's history is replete with evidence of her defiant and

unmotivated engagement to the reunification process. We therefore find no

merit to the mother's contentions regarding prong three.

The fourth prong of N.J.S.A. 30:4C-15.1(a)(4) serves as "a 'fail safe'

inquiry guarding against an inappropriate or premature termination of parental

rights." F.M., 211 N.J. at 453 (citing N.J. Div. of Youth & Fam. Servs. v. G.L.,

191 N.J. 596, 609 (2007)).

[T]he 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. The question
to be addressed under that prong is 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.]

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"The crux of the fourth statutory subpart is the child's need for a

permanent and stable home, along with a defined parent-child relationship."

N.J. Div. of Youth & Fam. Servs. v. H.R., 431 N.J. Super. 212, 226 (App. Div.

2013) (citing C.S., 367 N.J. Super. at 119). "If one thing is clear, it is that the

child deeply needs association with a nurturing adult. Since it seems generally

agreed that permanence in itself is an important part of that nurture, a court must

carefully weigh that aspect of the child's life." A.W., 103 N.J. at 610 (citation

omitted). Therefore, "to satisfy the fourth prong, the State 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." M.M., 189 N.J. at 281

(quoting J.C., 129 N.J. at 19).

"It has been 'suggested that [a] decision to terminate parental rights should

not simply extinguish an unsuccessful parent-child relationship without making

provision for . . . a more promising relationship . . . [in] the child's future.'" N.J.

Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 108 (2008) (quoting A.W.,

103 N.J. at 610) (alterations in original). "[C]ourts have recognized that

terminating parental rights without any compensating benefit, such as adoption,

may do great harm to a child." Id. at 109 (citing A.W., 103 N.J. at 610-11).

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The mother challenges the judge's prong four findings arguing termination

of her parental rights will do more harm than good. She contends the judge

ignored the bond and attachment she had with the child. Having thoroughly

reviewed the record under our standard of review and the applicable law, we

conclude the mother's arguments as to prong four lack merit.

The judge weighed the expert testimony presented by the Division and the

Law Guardian. Both experts had the opportunity to conduct bonding evaluations

between the mother and the child, as well as between the child and his resource

mother. The experts opined the child has a "strong" and "positive" bond with

both the mother and the resource mother; however, the experts concurred that

the child has an insecure attachment to the mother but a secure bond with his

resource mother. Moreover, the experts testified that the child's resource mother

would more than likely mitigate any harm he would endure from severing his

relationship with his mother, whereas the mother would not. The judge

emphasized the mother "cannot be trusted to control herself around [the child],

nor can she be trusted to keep him away from dangerous persons who might

cause physical or emotional harm. . . . An adoption by the resource parent is

clearly in [the child's] best interest." The record supports that finding under

prong four.

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II.

Our review of a family judge's factual findings is limited. Cesare v.

Cesare, 154 N.J. 394, 411 (1998). "It is not our place to second-guess or

substitute our judgment for that of the family court, provided that the record

contains substantial and credible evidence to support the decision to terminate

parental rights." F.M., 211 N.J. at 448-49 (citing E.P., 196 N.J. at 104). "We

invest the family court with broad discretion because of its specialized

knowledge and experience in matters involving parental relationships and the

best interests of children." Id. at 427. Although our scope of review is expanded

when the focus is on "'the trial judge's evaluation of the underlying facts and the

implications to be drawn therefrom,' . . . . even in those circumstances we will

accord deference unless the trial court's findings 'went so wide of the mark that

a mistake must have been made.'" M.M., 189 N.J. at 279 (first quoting In re

Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993); then

quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69

(App. Div. 1989)).

Here, the record contains substantial and credible evidence to support the

decision to terminate the mother's parental rights. The judge found the mother's

testimony was "unreliable," "argumentative," and that she was evasive and

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contradictory. He concluded that the mother could not "provide an environment

for [the child] where he would not be at risk." The mother's instability and

violent tendencies made her a "ticking time bomb," and a grave threat to the

child. We have no reason to second guess those or any other findings.

We are aware that on July 2, 2021, the Legislature enacted L. 2021 c. 154,

amending N.J.S.A. 30:4C-15.1(a) pertaining to the standards for terminating

parental rights. Specifically, the Legislature amended N.J.S.A. 30:4C-

15.1(a)(2), to exclude from consideration the harm to a child caused from being

removed from resource parents as a factor in a termination of parental rights

case. N.J.S.A. 30:4C-15.1(a) now reads as follows:

(1) The child's safety, health, or development has been
or will continue to be endangered by the parental
relationship;

(3) The division has made reasonable efforts to provide
services to help the parent correct the circumstances
which led to the child's placement outside the home and
the court has considered alternatives to termination of
parental rights; and

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

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We are satisfied the Division has proven all four prongs of the best interests

standard under both the old and amended version of N.J.S.A. 30:4C-15.1(a).

To the extent we have not addressed any other argument, we conclude that

they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Affirmed.

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