New Jersey Division of Child Protection and Permanency v. N.C.M. and T.E. and J.C. in the Matter of the Guardianship of T.M., M.L.W., and M.A.J.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3666-13T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY, APPROVED FOR PUBLICATION

Plaintiff-Respondent, December 16, 2014

APPELLATE DIVISION
v.

N.C.M.,

Defendant-Appellant,

and

T.E. and J.C.,

Defendants.
____________________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF T.M., M.L.W., and M.A.J.M., minors.
_____________________________________________

Argued telephonically November 19, 2014 –
Decided December 16, 2014

Before Judges Sabatino, Simonelli, and
Guadagno.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Hudson County, Docket No. FG-09-210-14.

Eric R. Foley, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Mr. Foley, on the
brief).
 Renee Greenberg, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Andrea M. Silkowitz, Assistant Attorney
General, of counsel; Ms. Greenberg, on the
brief).

Catherine Davila, Designated Counsel, argued
the cause for minors T.M., M.L.W., and
M.A.J.M. (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Ms.
Davila, on the brief).

The opinion of the court was delivered by

GUADAGNO, J.A.D.

Defendant N.C.M. (Nora)1 appeals from the April 1, 2014

judgment of guardianship which terminated her parental rights to

her daughters T.M. (Tara) and M.L.W. (Mary), and her son,

M.A.J.M. (Matt). At the time of the guardianship trial, Tara,

Mary, and Matt were nine, seven, and thirteen months,

respectively.

Defendant contends that the Division of Child Protection

and Permanency (Division) did not prove by clear and convincing

evidence the third and fourth prongs of the best interests test

required for termination. N.J.S.A. 30:4C-15.1(a).

Specifically, she claims that the Division's failure to provide

reasonable efforts to prevent placement and effectuate

reunification with her children is a direct result of an earlier

1
We employ pseudonyms to protect the privacy of the minors and
for ease of reference.

2 A-3666-13T3
failure by the Division to provide adequate services to her when

she was a minor and under the Division's care and supervision.

We are satisfied that the Division proved the requisite

statutory factors required to terminate defendant's parental

rights by clear and convincing evidence. The circumstances of

this case, however, compel us to discuss the Division's

obligation to provide services, specifically mental health

evaluations and treatment to minors under its care, and whether

the failure to provide such services can be considered in

evaluating reasonable efforts if the minor later becomes a

defendant in a guardianship proceeding.

I.

Nora was born in 1989. Although the record is sparse from

this period, it appears that shortly after her birth, the

Division took custody of Nora and placed her with B.J.M. (Beth)

and her husband, who later adopted her. Nora's birth parents

died during her early childhood and her adoptive father died in

2001. Nora grew up with five siblings, all of whom were adopted

by Beth.

After experiencing problems completing the fourth grade,

Nora was placed in special education classes and was diagnosed

with a reading disorder. It appears that, at some point, Nora

3 A-3666-13T3
was classified as disabled, and Beth received benefits on her

behalf.2

The Division was again involved with Nora in February 2002,

when it received a referral that Nora, who was then twelve, had

been beaten. After determining that Nora was uninjured, the

Division found the allegation to be unsubstantiated. In June

2003, the Division received another referral alleging that Nora

had been injured internally. This time, the Division confirmed

that Nora had been injured, and Beth was responsible. The

record does not indicate what, if anything, the Division did in

response, although Nora continued to reside with Beth.

Later that year or in early 2004,3 the Division removed Nora

and her siblings from Beth's custody due to Beth's alcoholism.

Details on Nora's initial placement are not included in the

record, but in November 2004, when she was fifteen and still

under the Division's care, Nora gave birth to Tara. The

Division placed Nora and Tara in a high school program for teen

mothers, but Nora withdrew from the program in 2005.

2
This conclusion is drawn from Nora's statement to an evaluating
psychologist that Beth took her social security check and used
it to pay Beth's mortgage.
3
The record only indicates that Nora was removed at age
fourteen.

4 A-3666-13T3
 In December 2006, Nora gave birth to Mary. Shortly after

Mary's birth, Beth made a referral to the Division alleging that

Nora had moved back into her home without permission. Due to

Beth's substance abuse issues, the Division removed Tara but

permitted Nora, who was then seventeen, to continue living with

Beth.

In May 2007, Beth made another referral to the Division

after an altercation with Nora. Beth told the caseworker that

she wanted Nora out of her house. A Division report indicates

that Tara had been returned to Nora and witnessed the incident

but does not indicate whether the Division took any action.

In December 2010, Beth made another referral to the

Division alleging that Nora "leaves the children with anyone

that is available." Nora had been living at her sister's home

with Tara and Mary, but was thrown out and moved back in with

Beth. Beth also alleged that Nora would not get out of bed to

take care of the children, which she attributed to drug and

alcohol abuse.

The Division investigated the same day. Nora told the

caseworker that she had nowhere to live if she could not stay

with Beth. The caseworker presented Nora with the option of

going to a shelter or paying for a hotel. If she did not find

5 A-3666-13T3
housing, the caseworker told Nora that the Division would remove

her children.

Although Nora moved in with a relative, the Division

substantiated her for neglect due to "inadequate shelter" because

"her shelter problem is chronic as she has a pattern of

homelessness for the past six years . . . [and] has been in

shelters, stayed with family members and in friends' homes."

After the December 2010 incident, the Division referred

Nora for homemaker services and psychological and substance

abuse evaluations. Although she attended the homemaker

services, Nora refused to submit to a drug screen and did not

appear for her psychological evaluation. In March 2011, Nora

became homeless for the third time in two months.

The current litigation resulted from a referral received by

the Division in April 2012 alleging that Nora was under the

influence when she picked up her daughters from school. Nora

was so impaired that she could not write her daughters' names to

sign them out of school. Division caseworkers learned that Nora

had been escorted out of the building by police and the girls'

maternal aunt had picked them up. Two days earlier, Nora had

picked up one of her daughters from school and later returned to

the school claiming the child was missing. The child was found

wandering alone near a local daycare center. The Division also

6 A-3666-13T3
learned that Tara had missed thirty-nine days of school and

would be held back in the first grade.

Nora admitted to smoking a mixture of marijuana and PCP

known as "dip" earlier in the day. The caseworker observed that

Nora remained under the influence during the interview, as she

continually opened and closed her eyes, swayed in place, and

alternatively laughed, yelled, or said nothing in response to

the worker's questions. Nora also admitted that she had been

staying in various homes. Tara and Mary confirmed that they had

been staying in Jersey City, but did not know where.

As a result of the investigation, the Division executed an

emergency Dodd removal4 of Tara and Mary. The children were

placed with a resource parent and family friend of Nora's, N.M.

(Natalie), where they remain to date. T.E. (Tom), the

biological father of Tara and Mary, was incarcerated at the time

of removal.

The Division offered services following the removal,

including weekly supervised visitation, substance abuse and

psychological evaluations, substance abuse treatment, parenting

4
A Dodd removal is an emergency removal of a child from the home
without a court order or the consent of the parent or guardian.
It is authorized "if the child is in such condition that the
child's continuance in the place or residence or in the care and
custody of the parent or guardian presents an imminent danger to
the child's life, safety, or health, and there is insufficient
time to apply for a court order." N.J.S.A. 9:6-8.29.

7 A-3666-13T3
skills classes, and two letters to welfare regarding housing

assistance. The Division also assessed three relatives as

potential placement options, but all were ruled out.

Nora failed to appear for her first scheduled psychological

evaluation, but attended the rescheduled visit with Dr. Robert

Kanen. Dr. Kanen diagnosed Nora with marijuana and PCP abuse,

based on the April 2012 incident and her admission that she used

those drugs on a daily basis for six months in 2011. He found

that Nora has an IQ of sixty-seven, is functionally illiterate,

and is "cognitively and learning disabled." Dr. Kanen

recommended substance abuse treatment and parenting skills

classes, but stated that her capacity to benefit from either is

limited due to her cognitive impairments. Nora was referred for

parenting skills classes but was discharged from the program for

non-compliance.

Nora began substance abuse treatment at Health Path in

October 2012, but was discharged from the program after one

month for non-compliance. The Division referred Nora for a new

drug abuse evaluation, after which she began treatment at New

Pathways in December 2012. She successfully completed this

intensive outpatient program two months later.

Nora also participated in daily counseling and group

therapy from June 2012 through February 2013. She attended

8 A-3666-13T3
their Women's Group, Narcotics Anonymous Group, and Anger

Management Group for those nine months.

In February 2013, the Division received a referral from

Jersey City Medical Center regarding the birth of Nora's third

child, Matt.5 The referent alleged that Nora had not received

any prenatal care and suggested that Nora was suffering from

cognitive or psychological impairments that would limit her

ability to care for the child.

A Division caseworker investigated and Nora admitted that

she did not receive prenatal care but explained that she did not

have health insurance. A nurse observed that Matt appeared

healthy and that Nora acted appropriately with him. Drug

screens of Nora and Matt were negative.

Nora claimed to be staying with a friend named James, but

could not provide his last name or address. Nora offered to

stay with a family friend if James' home was deemed

inappropriate. Although the family friend had adopted four

Division children already, her resource parent license had

expired and, as a result, the Division ruled her out as a

placement. The Division took custody of Matt upon his discharge

5
Nora listed J.C. as Matt's putative birth father, but he could
not be located.

9 A-3666-13T3
from the hospital and initially placed him in a separate foster

home, but later placed him in the same home as Tara and Mary.

Nora submitted to a psychological evaluation with Dr.

Jemour Maddux, who concluded that Nora's reunification with her

children could occur within six months if Nora remained drug-

free. He recommended unsupervised visitation leading to

overnight visits, concurrent supervised visitation, therapy with

the children, adult literacy classes, and a support group upon

reunification.

In April 2013, the court approved the Division's permanency

plan of reunification and found the six-month time frame

appropriate. Nora never received unsupervised visitation as the

Division had concerns that she was still using drugs. Nora

tested positive for PCP later that month and again in May 2013.

A supervised visit that month was terminated because she was

visibly under the influence. Nora was referred to the inpatient

program at Straight and Narrow.

As a result of her relapse, the court changed the

permanency goal to termination of parental rights and the

Division filed a complaint seeking guardianship of all three

children.

During evaluations with Dr. Maddux, Tara and Mary disclosed

exposure to Nora while she was "under the influence." Dr.

10 A-3666-13T3
Maddux concluded that this indicated neglect. Both girls also

stated that their mother no longer abuses drugs and were

optimistic about reunification. Reports of Nora's visitation

with the girls were positive, with the children displaying a

close bond, loving interactions, and Nora demonstrating good

parenting skills.

Nora was discharged from Straight and Narrow in October

2013 for non-compliance and fraternizing with a male patient.

She tested positive for PCP at a subsequent evaluation. While

she was consequently referred to an inpatient program at Turning

Point, Nora did not attend. Her urine screen was positive for

PCP again later in October 2013.

Nora was again referred for parenting classes, but was

terminated after one month for non-compliance. She was re-

referred for substance abuse treatment at Integrity House, but

was non-compliant, and her case was closed in December 2013.

She was re-referred for parenting classes in March 2014, but was

discharged for failure to attend.

On January 27, 2014, Tom executed an identified surrender

of his parental rights of Tara and Mary to Natalie. Nora's

guardianship trial began in March 2014. The court first heard

from caseworker Raymond Brown, who testified to the services

offered to Nora to effectuate reunification, including parenting

11 A-3666-13T3
classes, substance abuse assessments, substance abuse treatment,

supervised visitation, psychological evaluations, relative

assessments, transportation assistance, and referrals for

housing assistance. He stated that Nora was transient, had

failed to complete parenting classes or inpatient substance

abuse treatment, and could not provide proof of employment. He

indicated that Tara and Mary had expressed their desire to be

adopted by Natalie.

Dr. Kanen testified that Nora's severe parenting deficits

made it very difficult for her to provide her children with a

stable home. He noted Nora's history of drug abuse, and that

she did not believe she needed drug treatment. Dr. Kanen also

noted that Nora remained dependent on living with others due to

her continued homelessness, and that she was aware of the

services that the Division wanted her to complete but believed

they were unnecessary. Dr. Kanen concluded that based on Nora's

cognitive impairments, unstable housing, and continued use of

PCP, she was incapable of providing the three children with a

permanent, safe, and secure home. He also testified that her

ability to parent is unlikely to change in the foreseeable

future because her psychological issues are chronic and she has

not addressed her drug problem.

12 A-3666-13T3
 Dr. Kanen testified that the bonding evaluation revealed

that the girls displayed "avoidant attachment" as shown by their

withdrawal after witnessing Nora's oppositional behavior toward

a Division caseworker. He concluded that Nora and Matt have no

attachment, and that the girls' attachment to her "at best is

very, very insecure."

By contrast, Dr. Kanen testified that the girls engaged in

conversation with Natalie and appeared excited and happy. He

concluded that they are securely attached to Natalie and,

although Tara and Mary would likely experience some grief if

Nora's parental rights were terminated, they would not suffer

serious and enduring harm and Natalie could ameliorate what

grief arose. Due to a lack of any attachment, Dr. Kanen noted

that Matt would suffer no harm upon termination. He testified

that all three children would be at risk for serious and

enduring harm if returned to Nora's care.

Neither the law guardian, who supported the Division's

request for termination, nor Nora presented any witnesses. The

court found that the Division had met its burden of proving all

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

evidence, and entered a judgment of guardianship terminating

Nora's rights to Tara, Mary, and Matt.

13 A-3666-13T3
 On appeal, Nora presents the following bifurcated argument:

POINT I

THE DIVISION FAILED TO MEET ITS BURDEN OF
PROOF WHERE THERE WAS NOT CLEAR AND
CONVINCING PROOF SUFFICIENT TO SATISFY THE
FOUR PRONGS OF N.J.S.A. 30:4C-15.1(A).

A. THE DIVISION FAILED TO PROVIDE
REASONABLE EFFORTS TO PREVENT
PLACEMENT AND TO EFFECTUATE
REUNIFICATION BECAUSE THE
UNDERLYING PREDICATE CIRCUMSTANCES
OF THIS CASE THAT LEAD TO ANY
ALLEGED HARMS TO THE CHILDREN WERE
A DIRECT RESULT OF THE DIVISION'S
FAILURE TO PROTECT N.M. AND HER
CHILDREN DURING N.M.'S MINORITY.

B. THE DIVISION FAILED TO PROVIDE
REASONABLE EFFORTS TOWARDS
REUNIFICATION AFTER THE CHILDREN
WERE REMOVED.

C. THE DIVISION FAILED TO PROVE
BY CLEAR AND CONVINCING EVIDENCE
THAT TERMINATION OF PARENTAL
RIGHTS WILL NOT DO MORE HARM THAN
GOOD DUE TO THE DIVISION'S
INTERFERENCE IN THE COMPARATIVE
BONDING EVALUATIONS.

II.

Our review of a trial court's judgment terminating parental

rights is limited. N.J. Div. of Youth & Family Servs. v. M.M.,

189 N.J. 261, 278 (2007). The trial court's factual findings

are binding on appeal if supported by adequate, substantial, and

credible evidence. Cesare v. Cesare, 154 N.J. 394, 412 (1998)

(citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J.

14 A-3666-13T3
474, 484 (1974)). Particular deference is afforded to family

court fact-finding because of the family courts' special

jurisdiction and expertise in family matters. Id. at 413. A

trial court's legal conclusions, however, are not entitled to

deference. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J.

145, 183 (2010).

A parent's right to raise and maintain a relationship with

his or her child is constitutionally protected. In re

Guardianship of K.H.O., 161 N.J. 337, 346 (1999). That right is

not absolute, however, and must be balanced against the State's

parens patriae responsibility to protect the welfare of its

children. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J.

382, 397 (2009). Courts apply the "best interests of the child"

standard to properly balance parental rights against the State's

interest. K.H.O., supra, 161 N.J. at 347. That standard

permits termination of parental rights only where the State

proves the following elements 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

15 A-3666-13T3
 his resource family parents would cause
serious and enduring emotional or
psychological harm to the child;

(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).]

These four factors are neither discrete nor separate, but

instead overlap to provide a comprehensive standard that

identifies a child's best interests. N.J. Div. of Youth &

Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007). The

analysis is "extremely fact sensitive and require[s]

particularized evidence" for the given case. Id. at 606. For

involuntary termination, the "cornerstone of the inquiry [is]

whether the parent can cease causing his or her child harm and

become fit to assume the parental role within time to meet the

child's needs." N.J. Div. of Youth & Family Servs. v. L.J.D.,

428 N.J. Super. 451, 479 (App. Div. 2012) (citation omitted).

Nora does not contest that the Division proved prongs one

and two by clear and convincing evidence. Therefore, we address

only her challenge to the proofs as to prongs three and four.

16 A-3666-13T3
 A.

Under the third prong of the best-interests standard, the

Division must make "reasonable efforts to provide services to

help the parent correct the circumstances" that necessitated

removal and placement of the child in foster care. N.J.S.A.

30:4C-15.1(a)(3). "Reasonable efforts" may include parental

consultation, plans for reunification, services essential to

achieving reunification, notice to the family of the child's

progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c).

More specific services include day care, housing assistance,

referrals to drug treatment, medical or health care, parenting

classes, financial assistance, and the like. In re Guardianship

of D.M.H., 161 N.J. 365, 391 (1999).

The reasonableness of the Division's efforts "is not

measured by their success." L.J.D., supra, 428 N.J. Super. at

488. Even if the Division's efforts are deficient, the best

interests of the child standard still controls whether

termination is appropriate. Ibid. Defendant's challenge to the

prong-three proofs is based on her claim that the Division

failed to protect her and her children during her minority when

she was under the Division's care. She alleges that these

failures caused any alleged harm suffered by the children during

the pendency of this litigation. Defendant does not contest

17 A-3666-13T3
that the Division provided multiple psychological evaluations,

with follow-up treatment. Simply stated, Nora's argument is

that the Division's failure "to protect [her] and provide

reasonable services when she was a child-parent caused the

almost inevitable issues that arose in [her] early adulthood

years."

We acknowledge that the Division's apparent failure to

provide services to Nora after her removal from Beth's home when

she was fourteen gilds this argument with superficial appeal.

However, we are aware of no statutory authority or precedent

holding that the Division's failure to provide services to a

child under its care can be considered in a subsequent

guardianship matter involving that same child in her later

capacity as a parent when assessing the adequacy of services

required under Title 30.

We also view defendant's argument that her problems would

have been lessened or even abated had she received adequate care

during her minority as speculative. The fact remains, and Nora

does not dispute, that during the pendency of this litigation

the Division provided ample services to her and she failed to

take full advantage of them. While Nora's argument that the

Division's services were offered too late to functionally assist

her in becoming a suitable parent finds ample support in the

18 A-3666-13T3
record, we are compelled to reject it as untethered to statutory

or other existing legal authority.

The Division removed Nora from Beth's custody when she was

fourteen, and remained involved with her and her siblings over

the next three years. The record is devoid of any evidence of

services provided to Nora during this time when she gave birth

to two children. Nor is there any explanation why the Division

removed Tara from Beth's home because of her alcoholism but

allowed Nora, also a minor under the Division's care, to remain.

Even a cursory examination of Nora's history would have

alerted the Division to her struggles in school and apparent

learning disability. Had the Division provided a psychological

evaluation when Nora was first removed, there would have been

insight into her low IQ, and help could have been provided.

N.J.A.C. 10:122D-2.5(a) requires such evaluations and

follow-up services:

The Division representative shall make every
reasonable effort to assure that each child
in out-of-home placement receives
appropriate and necessary health care,
including mental/behavioral health services.

This obligation is reaffirmed in subsection (f):

The Division representative shall assure
that the child receives a medical
examination at least annually after the
initial medical examination performed at the
time of placement . . . . The Division
representative shall assure that each child

19 A-3666-13T3
 with a suspected mental/behavioral health
need receives a mental/behavioral health
assessment and identified follow-up care.
At a minimum, the child's examinations shall
comply with the Early and Periodic Screening
and Diagnostic Treatment periodicity
schedule in accordance with N.J.A.C. 10:54-
5.10 through 5.13.

After the Division removed Nora from Beth's custody, the

only record of Division interaction with Nora thereafter came as

the result of Beth's numerous referrals. The only

"substantiated" allegation against Nora during this period is

that she was homeless from ages fourteen to nineteen, a highly

questionable finding. Other than the placement in a high school

for teen mothers in 2004, the record is devoid of Division

efforts to assist Nora with any of her problems during these

formative years.

In 2012, Dr. Kanen determined Nora's IQ was sixty-seven,

she was functionally illiterate, and cognitively and learning

disabled. While it is regrettable that the Division did not

identify and address these deficiencies earlier, we decline to

recognize a causal link between those failures and the adequacy

of the services that were ultimately offered to Nora as a

defendant parent in this proceeding.

B.

Nora challenges the Division's proofs under the fourth

prong and argues that a Division caseworker's interjection into

20 A-3666-13T3
her bonding evaluation "caused a skewed result that was then

relied upon by the court" in determining that termination would

not do more harm than good. We disagree.

To satisfy the fourth prong of the best-interests test for

termination, the Division must prove by clear and convincing

evidence that "[t]ermination of parental rights will not do more

harm than good." N.J.S.A. 30:4C-15.1(a)(4). "The question to be

addressed . . . 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., supra, 161 N.J. at 355.

The child's "paramount need" for permanent, stable, and

defined parent-child relationships is key. Ibid. It is

therefore against a child's best interests to prolong permanent

placement because the natural parent is unable to care for the

child for a protracted period. N.J. Div. of Youth & Family

Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996).

A court must inquire into the child's relationship with

both the natural and foster parents on prong four. K.H.O.,

supra, 161 N.J. at 355. To that end, the Division should offer

the testimony of a "well qualified expert who has had full

opportunity to make a comprehensive, objective, and informed

21 A-3666-13T3
evaluation of the child's relationship with the foster parents."

In re Guardianship of J.C., 129 N.J. 1, 19 (1992). "[W]here it

is shown that the bond with foster parents is strong and, in

comparison, the bond with the natural parent is not as strong,

that evidence will satisfy the requirement of N.J.S.A. 30:4C-

15.1(a)(4) that termination of parental rights will not do more

harm than good to the child." K.H.O., supra, 161 N.J. at 363.

Here, the trial court relied on Dr. Kanen's conclusions

from the bonding evaluations he conducted with the foster parent

in January 2014 and with Nora in February 2014. Dr. Kanen

testified that the children are securely attached to Natalie but

have only an insecure attachment to Nora and would not suffer

serious or enduring harm if permanently separated from Nora, but

would suffer such harm if returned to her care. He further

opined that Natalie is able to ameliorate any emotional harm

resulting from the termination of Nora's parental rights. The

court noted that Nora failed to present any evidence to the

contrary and found that the Division had satisfied this prong.

Nora asserts that the court's comparative bonding analysis

is flawed because a Division caseworker interfered with her

evaluation. Dr. Kanen testified that he permitted caseworker

Kim Johnson to enter the room in which the bonding evaluation

was to take place immediately behind himself and the family.

22 A-3666-13T3
The evaluation began in the hallway two to three minutes

previously. Johnson and Nora argued for a few minutes, at which

point Johnson left to get her supervisor. The supervisor and

Johnson returned and continued to argue with Nora for several

minutes more, while Tara and Mary became continually more

withdrawn. Dr. Kanen did not stop or move the conversation

elsewhere to avoid exposing the children to the conflict. He

testified that he allowed the argument to continue because he

did not anticipate the discussion would escalate, he had never

conducted an evaluation that had been interrupted by the

Division, and did not know whether to acquiesce or object.

Dr. Kanen noted that the girls were initially happy at the

evaluation, but became withdrawn and depressed upon witnessing

Nora's oppositional behavior toward the Division workers. In

his report, Dr. Kanen wrote that this incident was "an example

of how [Nora's] oppositional behavior can have a detrimental

impact on the emotional development of these two girls. [Nora]

had no insight into the reaction of [Tara] and [Mary]. She

showed no evidence of sensitivity to how her behavior and

emotions affect her children."

Although it would have been preferable that any discussions

between the caseworker and defendant had not interfered with the

evaluations, we do not find the procedure so flawed that it

23 A-3666-13T3
should have been disregarded by the trial court. Ultimately,

Dr. Kanen's testimony remains unrebutted and the trial court

credited his testimony in concluding that the children would not

suffer more harm than good from terminating Nora's parental

rights. The record contains substantial, credible evidence to

support this conclusion.

Affirmed.

24 A-3666-13T3