NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.P

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3098-19

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

S.P.,

Defendant-Appellant/
Cross-Respondent.

IN THE MATTER OF THE
GUARDIANSHIP OF H.C.,
a minor,

and

IN THE MATTER OF THE
GUARDIANSHIP OF Z.H.,
a minor,

Cross-Appellant.

Submitted October 13, 2021 – Decided November 16, 2021
Before Judges Currier and DeAlmeida.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FG-02-0055-19.

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

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor, cross-appellant Z.H. (Meredith
Alexis Pollock, Deputy Public Defender, of counsel;
Todd Wilson, Designated Counsel, on the briefs).

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

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

PER CURIAM

Defendant is the mother of four children. In 2011, after receiving

referrals for substance abuse, mental health issues, unstable housing, and

issues with day-to-day care, the Division of Child Protection and Permanency

(the Division) removed all four children from her care. Defendant appeals

from the subsequent termination of her parental rights as to her two youngest

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children — Z.H. (Zach), born in 2010, and H.C. (Heather), born in 2008. 1

Both children suffer from behavioral issues and have been in more than a

dozen different resource homes. The trial court terminated defendant's

parental rights after finding it was in the children's best interests. 2

At the time of trial, Heather was in a resource home with a resource

parent who expressed an intent to adopt her. However, the Division advised

this court in September 2021 that the resource parent no longer wished to

adopt Heather. Therefore, the Division changed the placement goal to select

home adoption — the same goal as intended for Zach.

Defendant appeals from the trial court's decision and Zach's law

guardian filed a cross-appeal. Both argue only that the Division failed to

prove the fourth prong of the statutory test set forth under N.J.S.A. 30:4C-

15.1(a)(4) — that the "termination of parental rights will not do more harm

than good." Zach and defendant contend that Zach's prospects of adoption are

too slim to justify the trial court's decision. Zach also seeks to live with his

maternal grandmother D.P. (Debbie). However, Debbie was ruled out as a

caretaker and has moved to South Carolina.

1
We use initials and pseudonyms as required under R. 1:38-3(c)(9).
2
The parental rights of the biological fathers of the two children were
terminated in 2014. They have not participated in this appeal.
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Although there is no permanent placement at this time for either child,

there is also no relationship or bond between defendant and the children.

Therefore, we are satisfied the court did not err in terminating the parental

rights of defendant in the expectation of freeing the children for future

adoptive placement. We affirm.

We provide some of the extensive history between defendant and the

Division for context. Defendant's four children were removed from her care

and placed into resource homes in 2011. The following year, the Family Part

judge approved the Division's plan of termination of parental rights followed

by adoption. After trial, the court terminated defendant's parental rights to all

four children in 2014. However, while the appeal was pending, the adoptive

parent of Heather and an older sibling requested their removal and they were

placed into a new resource home.

We remanded for the trial court to "determine the impact of changed

circumstances" regarding Heather and her sibling. After a remand trial, the

court again terminated defendant's parental rights.

In August 2016, all four children were placed with Debbie. Thereafter,

the case was reopened to accept defendant's voluntary identified surrender of

her parental rights so Debbie and her boyfriend could adopt the children. The

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following year, the parties consented to the reinstatement of defendant's

parental rights and custody was transferred to Debbie. However, the court

continued its order forbidding contact between defendant and the children until

she demonstrated visitation was in their best interests.

Five months later, the Division received a referral that, after Debbie was

arrested for violating a restraining order, she left the children in defendant's

care. Two weeks later, Debbie left the children with another relative and had

not yet returned after several days. The Division learned that Debbie had been

hospitalized for depression and suicidal ideation and tested positive for

cocaine and alcohol. Therefore, the children were removed from Debbie's care

and placed in resource homes. The Division was again granted custody. 3

During the trial in 2019, the Division caseworker described the myriad

of services offered to defendant through the many years of litigation, including

substance abuse evaluations and programs, visitation with the children, urine

screens, and mental health treatment. The caseworker noted the children had

not lived with defendant since they were removed from her care as very young

children in 2011. She testified that neither child had ever expressed any desire

for reunification with defendant.

3
It appears at some point the two older siblings returned to live with Debbie.
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The caseworker testified that the Division considered alternatives to

termination by assessing proposed relatives and family friends. However, each

was ruled out either because of an unwillingness or an inability to care for the

children. Debbie was ruled out as a caretaker several times — most recently

the week before trial.

The Division also presented another caseworker during the trial who

described the select home adoption process and explained how and why it

could be beneficial to children like Zach. The caseworker stated that if Zach

was "legally freed," then the Division could search beyond New Jersey for

potential placements. She anticipated that Zach would remain in the treatment

group home before ultimately being placed in an adoptive home. She

recognized, however, that Zach's behavioral and psychological issues would

create "challenges" in placing him and he would "need a supportive family

who's committed to meeting his needs."

Frank Dyer, Ph.D., conducted psychological and bonding evaluations of

Heather and Zach in 2019. The expert did not conduct a bonding evaluation

between defendant, Heather, and Zach because they had not been in contact for

over a year and neither child had resided with her since 2011.

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According to Dr. Dyer, he reviewed documents that revealed Zach was

"an extremely emotionally disturbed child, who [had] spent a great deal of his

life not only in resource care but in institutional care[,]" and that it was "clear

that the necessity of transferring [him] to an institution because of his e xtreme

behavior problems . . . made him impossible to contain in a normal resource

home."

Dr. Dyer recommended that Zach "receive intensive support, therapy,

supervision, and psychiatric medication management not only for the balance

of his childhood but into his adolescence." He opined there was "a danger that

if he's simply moved out of [the treatment group home] and then placed with

an unprepared resource family, pre-adoptive family, that that's going to blow

up because he needs a lot of work before he's able to accept permanent

caretakers."

Dr. Dyer testified that Zach was not yet ready for adoption and that it

was "going to take a while for [him] really to get the help that he needs to

develop basic social-interaction skills, basic self-concept, basic behavioral

controls, mood regulation, [and] emotional regulation." He recommended

continued placement in a treatment home "with skilled and mature caretakers,

who can respond to his behavioral challenges."

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In discussing Heather, Dr. Dyer testified that she had some unsuccessful

resource placements and spent about one year in an in-patient treatment home

for "emotionally disturbed and behavior-disorder children." When Dr. Dyer

met with Heather, she was staying in the resource home of a staff member

from the in-patient treatment home. Dr. Dyer found Heather had "adjusted

remarkably well, considering the short time that she was" at the resource

home.

Dr. Dyer testified that Heather seemed "to have profited enormously

from her present placement with her resource parent[,]" but she was "still an

immature, very emotionally hungry and need [sic] child," which was not

surprising "based on her history of institutional placements." He opined that

Heather's best interests would be served by the Division's goal of adoption by

her current resource parent.

Following a psychological evaluation of defendant, Dr. Dyer diagnosed

her with "mood disorder not otherwise specified, bipolar disorder[,]"

"borderline intellectual functioning, and personality disorder not otherwise

specified with borderline and paranoid features." He explained that this "mood

disorder indicates that [defendant] would have periods of either pathologically

elevated mood or a pathologically depressed mood, where she essentially

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would be unavailable to any child in her care." Additionally, bipolar disorder

"interferes with the person's ability to grasp reality accurately[,]" and if

someone refuses treatment for that it is "a really incapacitating situation in

terms of any type of parenting capacity."

Because defendant refused treatment, Dr. Dyer stated her mental state

"remain[ed] a serious limitation with respect to her acquiring parenting

capacity any time within the foreseeable future." When asked if his opinion

would change if defendant were to undergo counseling, Dr. Dyer said it would

not. He explained that "any counseling she might have arranged at this late

date is really too little, too late, and does not show any promise of imparting

adequate parenting capacity within the foreseeable future." He also testified

that neither child remembered ever living with defendant.

At the time of his evaluation, Dr. Dyer noted there was a strong

attachment between Debbie and Zach. Therefore, he opined that Zach would

suffer harm if the court terminated defendant's parental rights and Zach no

longer had contact with Debbie and Heather. According to Dr. Dyer, because

the Division's plan of select home adoption means there are no identified

parents, it was unknown whether Zach would be permitted to have contact with

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Heather and Debbie, and therefore, he did not know if this harm could be

ameliorated.

However, Dr. Dyer conceded that terminating defendant's parental rights

allowed the Division the freedom to place Zach in "whatever type of setting

they . . . and their experts feel would be the most appropriate for him." And

that was a benefit of termination. Because the decision would be in the

Division's hands alone, then the Division "could be free to act in the child's

best interests." Dr. Dyer also acknowledged that "some children who have

extreme behavior[al] problems" may not be adopted before they turn eighteen.

Following the completion of the trial, Debbie informed the Division in

February 2020 that she no longer wanted to care for the two older children and

she was moving to South Carolina. As stated, the Division had already ruled

Debbie out as a caretaker for Zach and Heather. The two older siblings were

placed in foster homes.

In a comprehensive, well-reasoned sixty-three-page written decision,

Judge Nina C. Remson terminated defendant's parental rights to Zach and

Heather, finding the Division had proven each of the four prongs of N.J.S.A.

30:4C-15.1(a) by clear and convincing evidence.

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In considering prong four, Judge Remson stated it was "unrefuted" that

defendant was "not able to parent the children now or in the foreseeable

future[,]" and had not been able to do so since their removal in 2011.

Defendant's contact with the children had been suspended since her rights were

initially terminated in 2014, and she had "yet to demonstrate that it would be

in the children's best interest to allow contact." Indeed, Dr. Dyer could not

conduct bonding evaluations between defendant and the children "due to the

children not having contact with [defendant] for a significant amount of time."

The judge found Dr. Dyer's testimony credible, and she relied on his

opinions. In addressing the Division's permanency plan for Zach—select

home adoption—Judge Remson stated he had made recent progress to "step

down from a residential facility to a therapeutic group home." The judge noted

the caseworker's testimony that freeing Zach for adoption would provide him

with a greater pool of prospective families outside of New Jersey, and Dr.

Dyer's opinion that permanency was "critical" for Zach's future. Therefore,

she concluded that Zach was "clearly in need of permanency as soon as

possible[,]" and that any further delay in the hopes of defendant engaging in

services "when she has made minimal progress would only further harm" him.

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The court acknowledged Dr. Dyer's opinion that Zach would suffer harm

if his contact with Heather and Debbie was terminated. However, she noted

Dr. Dyer had also opined that Heather and Zach could not wait for defendant

"to make a commitment to [engage] in appropriate services to eliminate the

harms to herself and the children[,]" when, despite the passage of a decade,

Debbie had failed to make any positive changes.

With the information presented to her at the time, Judge Remson also

accepted Dr. Dyer's opinion that Heather had a strong attachment and bond

with her resource parent and Heather would suffer harm if she were removed

from her.

Therefore, the judge concluded that the Division had established the

fourth statutory prong by clear and convincing evidence and terminatio n of

defendant's parental rights would not do more harm than good because the

children did "not have a bond with [defendant]." She stated that termination

would "afford the children the permanency and stability they need and deserve

and will provide them with the best opportunity to develop into emotionally

healthy and productive adolescents and adults[,]" and that Zach and Heather

"deserve permanency with a competent, nurturing caretaker who can provide

them with a safe and stable home."

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In her sole argument presented on appeal, defendant contends the

Division failed to prove the fourth prong of the best-interests-of-the-child test

because it did not demonstrate that Zach and Heather had an opportunity for

permanency that justified severing the bonds with her and Debbie. In his

cross-appeal, Zach also contends that the court erred in finding that his

opportunity for permanency outweighed the harm that would be caused by

terminating defendant's parental rights particularly because his adoption

prospects are "bleak."

The right "to raise one's children" is fundamental and thus

constitutionally protected. N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J.
591, 599 (1986) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)).

However, while parental rights are fundamental, they "are not absolute." In re

Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Those rights are "tempered

by the State's parens patriae responsibility to protect children whose vulnerable

lives or psychological well-being may have been harmed or may be seriously

endangered by a neglectful or abusive parent." N.J. Div. of Youth & Fam.

Servs. v. F.M., 211 N.J. 420, 447 (2012). Thus, severance of the parent-child

relationship may be required to protect the child. N.J. Div. of Youth & Fam.

Servs. v. E.P., 196 N.J. 88, 102 (2008). The termination of parental rights,

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however, "must be used with caution and care, and only in those circumstances

in which proof of parental unfitness is clear." F.M., 211 N.J. at 447.

"The balance between parental rights and the State's interest in the

welfare of children is achieved through the best interests of the child

standard[,]" which is named in N.J.S.A. 30:4C-15(c) and elaborated in

N.J.S.A. 30:4C-15.1(a) as four prongs. K.H.O., 161 N.J. at 347-48. They are:

(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;

(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.

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

The Division has the burden of proving "by clear and convincing

evidence that separating the child from his or her [resource] parents would

cause serious and enduring emotional or psychological harm." In re

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Guardianship of J.C., 129 N.J. 1, 19 (1992) (citing Santosky v. Kramer, 455 U.S. 745, 768 (1982)).

When applying the best interests test, "the focus of the inquiry is not

only whether the parent is fit, but also whether he or she can become fit within

time to assume the parental role necessary to meet the child's needs." N.J. Div.

of Youth & Fam. Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006)

(citing J.C., 129 N.J. at 10). "Presumptions of parental unfitness may not be

used in proceedings challenging parental rights, and all doubts must be

resolved against termination of parental rights." K.H.O., 161 N.J. at 347

(citation omitted).

Termination should therefore be ordered only when it is "the least

harmful or least detrimental alternative." A.W., 103 N.J. at 616 (citation

omitted). It should be denied if the record could support a finding "that the

children had not suffered substantial emotional or developmental injury, that

the parents would soon resume an appropriate nurturing role with assistance

from [the Division] or another agency, or that termination would affirmatively

harm the children." Id. at 617.

Our review of a "trial court's decision to terminate parental rights is

limited, and the trial court's factual findings should not be disturb ed unless

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they are so wholly unsupportable as to result in a denial of justice." In re

Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (citations omitted). We

"must defer to a trial judge's findings of fact if supported by adequate,

substantial, and credible evidence in the record." N.J. Div. of Youth & Fam.

Servs. v. G.L., 191 N.J. 596, 605 (2007). We accord "deference to factfindings

of the family court because it has the superior ability to gauge the credibility

of the witnesses who testify before it and because it possesses special expertise

in matters related to the family." F.M., 211 N.J. at 448.

Since the findings on the first three prongs are not challenged, we turn to

the trial court's ruling on the fourth prong, where the Division must show that

the "[t]ermination of parental rights will not do more harm than good" to the

child. N.J.S.A. 30:4C-15.1(a)(4). This prong "serves as a fail-safe against

termination even where the remaining standards have been met." G.L., 191 N.J. at 609. Our Supreme Court has stated that "[t]he 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 that parent." E.P., 196 N.J. at 108.

The prong requires "testimony of a 'well-qualified expert who has had

full opportunity to make a comprehensive, objective, and informed evaluation'

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of the child's relationship with both the natural parents and the foster parents."

N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 281 (2007) (quoting

J.C., 129 N.J. at 19). It may also be satisfied where the "termination action

was not predicated upon bonding, but rather reflected [the child's] need for

permanency and [the parent's] inability to care for him in the foreseeable

future." N.J. Div. of Youth & Fam. Servs. v. B.G.S., 291 N.J. Super. 582, 593

(App. Div. 1996).

The child and their "right to a permanent, safe and stable placement,"

should not "be held prisoner of the rights of others, even those of his or her

parents." N.J. Div. of Youth & Fam. Servs. v. S.F., 392 N.J. Super. 201, 210

(App. Div. 2007) (quoting N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J.

Super. 76, 111 (App. Div. 2004)). Because of the importance of permanence

to a child's well-being and development, limits are placed "on the amount of

time a parent may have to correct conditions at home in anticipation of

reunification." K.H.O., 161 N.J. at 358. "Children must not languish

indefinitely in foster care while a birth parent attempts to correct the

conditions that resulted in an out-of-home placement." S.F., 392 N.J. Super. at
209.

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However, "[a] court should hesitate to terminate parental rights in the

absence of a permanent plan that will satisfy the child's needs." B.G.S., 291 N.J. Super. at 593. Nonetheless, the Court has recognized that "there will be

circumstances when the termination of parental rights must precede the

permanency plan." A.W., 103 N.J. at 611.

With that backdrop, we consider defendant's argument. As to Zach, she

contends it is speculative that he will find an adoptive home. Defendant relies

on E.P. to support her argument. In E.P., a mother's parental rights were

terminated in large part due to her "addiction to drugs, psychological

problems, and unstable lifestyle." 196 N.J. at 92. The child asked to be

reunited with her mother as she was moved from foster home to foster home,

exhibiting behavioral problems. Id. at 95.

The Supreme Court noted that although the mother and daughter had not

lived together for nine years, they "maintained a loving relationship, through

periodic visits and telephone conversations." Id. at 92. The Court found that,

although the evidence was sufficient to support the trial court's finding that the

Division had proven the first three prongs, it erred in finding the Division

satisfied the fourth prong. Id. at 104-05, 108-11.

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The E.P. Court reasoned that this was not a case where experts differed

in their opinions of whether a child was more strongly bonded to their

biological parent or foster parent, but rather, the child was a thirteen-year-old,

"psychologically fragile girl, who has bounced around from one foster home to

another, and whose only enduring emotional bond is with her mother." Id. at

109. The Court noted that at the time of the guardianship trial, the child had

been moved to her seventh foster home and there were no prospective

permanent placements; at the time of the Court's decision, she had been placed

in twelve different foster homes. Id. at 95, 109. The Court stated that the

child's biological mother's "love and emotional support" remained "the one

sustaining force" in the child's life. Id. at 109.

The Supreme Court reversed the order terminating parental rights,

finding the record did not sufficiently support the conclusion that the Division

proved by clear and convincing evidence that termination would not do more

harm than good. Id. at 110-11. The Court reasoned that although permanency

must be the Division's goal, no court or legislative authority "has stated that

the unlikely possibility of permanency in the future should outweigh a strong

and supportive relationship with a natural parent." Id. at 111. Thus, "because

a permanent placement with an adoptive family [was] nowhere in sight and the

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child's only enduring emotional and loving bond remain[ed] with her natural

mother," the Court held it was error to find that termination would be in the

child's best interests. Id. at 92-93.

Although the child in E.P., Zach, and Heather share similar behavioral

issues and numerous placements without any prospects of adoption, a

significant distinction is that the child in E.P. maintained contact and a loving

relationship with her biological mother. Here, Zach and Heather have not had

any contact or visitation with defendant for several years. Because there is no

relationship at all between defendant and her two youngest children, Dr. Dyer

did not conduct a bonding evaluation between the children and defendant.

Zach and Heather do not even recall ever living with defendant. This simply is

not the same situation as existed in E.P.

We are satisfied the record supports the trial court's conclusion that the

Division satisfied the fourth prong. The children have no relationship with

defendant. In addition, the evidence supports Judge Remson's conclusion that

the Division sufficiently showed Debbie was not a viable caretaker option.

And, after the conclusion of testimony, Debbie relocated to another state and

declined any contact with the children. Debbie also requested that the

Division remove the two older children from her care.

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As for Heather, we must analyze her situation in light of the unfortunate

circumstances that her resource parent is no longer interested in adopting her.

Heather has also had more than a dozen unsuccessful placements. And her

permanency situation changed after Dr. Dyer rendered his opinion and after

the trial court issued its decision. However, we find a second remand would

be unproductive. Without an adoptive parent, and under these circumstances,

the conclusion must be the same as that regarding Zach. Because Heather has

no bond with defendant, that relationship must be terminated so Heather may

be free for select home adoption.

Under the circumstances of this case, there is no satisfying solution. But

this litigation has taken place through the entirety of Zach's and Heather's

lives. And, although there is no permanency plan in place, it is clear from the

evidence presented that it is in the best interests of the children to sever the

ties to defendant so they may have a chance to obtain a permanent, safe, and

stable placement.

The evidence reflects that both Zach and Heather enjoyed and benefitted

from sibling visits. Therefore, we remand to the trial court for the limited

determination of whether post-judgment visits between Zach and Heather (and

the other two siblings) may and should continue.

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Affirmed. We remand only for the limited purpose as set forth above.

We do not retain jurisdiction.

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