L.K. AND M.K. VS. A.K.(FD-16-0875-12, PASSAIC COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4065-15T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

M.S.,

Defendant-Appellant.

_____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF T.M.E.C.M.,
A MINOR.
_____________________________

Submitted February 27, 2017 – Decided April 4, 2017

Before Judges Sabatino and Currier.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Burlington County, Docket No. FG-03-45-15.

Joseph E. Krakora, Public Defender, attorney
for appellant (Christine B. Mowry, Designated
Counsel, on the briefs).

Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel; Kosha
Gala, Deputy Attorney General, on the brief).
 Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Karen A.
Lodeserto, Designated Counsel, on the brief).

PER CURIAM

Defendant M.S.1 appeals from the May 9, 2016 order terminating

her parental rights to her daughter T.M.E.C.M. (Terri).2 She

argues that the Division of Child Protection and Permanency

(Division) did not prove the third and fourth prongs of the best

interests of the child standard as set forth in N.J.S.A. 30:4C-

15.1(a)(3) and (4).3 After a review of these arguments in light

of the applicable legal principles, we affirm.

We derive our facts from the testimony presented at the

guardianship trial that took place on several dates between January

and April 2016.

Defendant has a long history with the Division, which began

providing court-ordered services to her as a teenager, in 1986.

Ten years later, in 1996, the Division became involved with her

as a parent. Over the course of many years, the Family Part on

1
We use initials and pseudonyms for the family members to protect
the privacy of the minors involved.
2
Terri's father, H.M., surrendered his parental rights prior to
the guardianship trial.
3
We acknowledge the letter brief submitted by defendant in
November 2016 in further support of her appeal.

2 A-4065-15T1
multiple occasions granted the Division custody of defendant's two

older children, Peter and Ralph, due to defendant's arrests and

incarceration for various offenses. The Family Court terminated

defendant's parental rights to Ralph in 2008, and we affirmed that

decision. See N.J. Div. of Youth & Family Servs. v. M.S., No. A-

4828-09 (App. Div. Dec. 30, 2011). Ralph was adopted by his

resource parent, L.B. (Linda). Peter also lived temporarily with

Linda until 2013 when he aged out of the child welfare system and

moved in with defendant.

Terri was born in 2012, while the Division still had an open

case for supervision of Peter. She was placed in a resource home

with a paternal relative, R.A. (Ruth), upon her release from the

hospital, where she remained at the time of the trial. Ruth

desires to adopt Terri. Defendant has never had custody of her

daughter.

Defendant suffers from serious medical issues – both physical

and mental. She was hospitalized after Terri's birth, due to

complications from diabetes and MRSA (methicillin-resistant

staphylococcus aureus). As a result of her diabetes she was in a

coma between March and April 2013. After her release from the

hospital, she spent time at various rehabilitation facilities and

did not return home until July 2013.

Over the next several years, defendant suffered additional

3 A-4065-15T1
serious medical problems, including complications from weight loss

surgery, pneumonia, kidney dialysis, and a leg fracture, which

resulted in multiple stays in hospitals and rehabilitation

facilities. She uses a wheelchair and requires significant

assistance with daily life activities, including bathing and

toileting. At the time of trial, Peter was being paid by the

State to serve as her home health aide; he also had a job outside

the home.

Despite her many medical problems, the Division provided

services to defendant in an attempt to effectuate a goal of family

reunification. The services included individual therapy and

parenting classes in her home, and supervised visitation with her

daughter, which included transportation of the child to

defendant's location, be it her home or a medical facility. A

number of visits were canceled because of defendant's medical

problems.

During those visits, defendant was never able to care for

Terri independently. She required assistance from others,

primarily Peter. Nevertheless, the visits generally went

smoothly, with Terri interacting well with defendant and others

present. The only significant safety concern was occasional smoke

in the home, which was problematic given Terri's asthma.

The Division considered, and ruled out, a variety of placement

4 A-4065-15T1
options in addition to Ruth. At trial, defendant complained only

about the rule-out of Linda, Ralph's adoptive mother, who was

considered as a placement for Terri on two separate occasions.

Linda was considered twice as a placement for Terri.

Originally, her home was licensed as a therapeutic home, which

posed two problems. First, one of the children in Linda's care

was sexually aggressive, which presented safety concerns for an

infant. Second, at the time, the Division did not permit dual

licenses of a home as a regular resource home and as a therapeutic

home, and Terri did not require therapeutic services. Therefore,

Linda would have had to change her license to take Terri, meaning

that other children in her care would be removed, a change Linda

was not willing to make. Again in 2015 Linda was reconsidered for

placement, but ultimately it was determined that it was in Terri's

best interests to remain with Ruth.

At the guardianship trial, defendant argued that

reunification was the proper outcome or, in the alternative, Terri

should be placed with her brother Ralph at Linda's home. All of

the parties' experts agreed that defendant was incapable of

providing safe parenting for Terri, and she would not be able to

do so in the foreseeable future, despite the years of services

provided by the Division. Thus, the question became whether there

was anyone else who could assist defendant in parenting Terri.

5 A-4065-15T1
 In his 2014 report, the Division's psychologist, Jason

Fleming, Psy.D., recommended that the Division investigate the

ability and willingness of Peter, then twenty-two years old, to

assist in caring for his sister. Similarly, physicians who

examined defendant in 2014 and 2015 suggested she might be able

to physically care for Terri with assistance from Peter, and

defendant asked the Division to consider Peter as a parenting

option.

Occasionally H.M. would live with defendant. He was not

supportive of that plan and reported his concerns to the Division

caseworker. H.M. testified at trial that Peter was "still a kid"

and "not reliable." The Division nevertheless explored Peter as

a parenting option and referred him to parenting classes, but he

did not complete the program.

In addition, the Division referred defendant and Peter for

drug testing; in March 2014 they both tested positive for marijuana

which resulted in a referral for substance abuse evaluations.

Defendant's evaluator recommended only mental health services, not

substance abuse treatment, and in February 2016 she tested negative

for drugs.

Peter's drug use was persistent. He had undergone outpatient

drug treatment before moving in with his mother in 2014, and he

continued to test positive after the Division's March 2014 test.

6 A-4065-15T1
Peter was resistant to further testing and treatment. Ultimately,

Peter underwent a substance abuse evaluation in July 2014, and he

was referred to an outpatient drug treatment program. He did not

attend the program, however, and was discharged as non-compliant.

Peter was evaluated again in February 2015. He tested positive,

was referred to an outpatient drug treatment, and again he did not

attend.

Peter testified at trial that he continued to use drugs, but

he expressed a willingness to undergo drug treatment. At the same

time, he felt "like all the pressure's on me." He did not want

to be the reason his sister was not returned to his mother.

However, Peter denied that his mother needed any assistance in

caring for Terri, and he did not believe that his using marijuana

affected his ability to care for his sister.

The Division presented testimony from psychologist Ronald S.

Gruen, Ed.D., who performed a psychological evaluation of

defendant, and a bonding evaluation of defendant and Terri in

December 2015. He concluded that defendant suffered from serious

medical, emotional, and psychological problems that rendered her

unable to parent her daughter, and her situation was unlikely to

change. Dr. Gruen believed that Terri would be at risk if placed

in defendant's care.

As for bonding, the expert concluded that defendant had an

7 A-4065-15T1
"acquaintanceship relationship" with her daughter, with Terri

viewing defendant as a playmate as opposed to a caregiver. Dr.

Gruen found a "mild attachment" between defendant and Terri, but

no significant psychological bonding. Thus, he opined that

"permanent separation of mother and child would not cause [Terri]

significant and enduring psychological harm."

Dr. Gruen also performed a bonding evaluation between Terri

and her resource parent. He found a secure attachment and a strong

psychological bond had developed over the years between Terri and

Ruth. He further opined that disruption of Terri's psychological

bond with Ruth would cause the child enduring emotional harm. He

recommended that defendant's parental rights be terminated, and

he "strongly endors[ed]" Ruth's adoption of Terri. Dr. Gruen

testified that permanency was important for the child, and if she

were kept "in limbo" it would lead "to high levels of anxiety."

In response to defendant's testimony that Terri had a positive

relationship with her two brothers, Dr. Gruen testified that it

was more important and in her best interests, for Terri to maintain

her parental relationship with Ruth over her playmate

relationships with her siblings.

The Law Guardian presented its expert, psychologist Alan J.

Lee, Psy.D., who also performed a psychological evaluation of

defendant, as well as bonding evaluations between defendant and

8 A-4065-15T1
Terri, and Ruth and Terri.

Dr. Lee diagnosed defendant with depressive disorder, anxiety

disorder, impulse control disorder, and a personality disorder

with antisocial, narcissistic, and avoidant traits. He also could

not rule out posttraumatic stress disorder or organic mental

disorder. Based upon his psychological evaluation, he concluded

that defendant was unable to provide minimally adequate parenting

to Terri at the present time or within the foreseeable future, and

her prognosis for significant and lasting changes was poor.

Based upon Dr. Lee's bonding evaluations, he concluded that

Terri "has an insecure, ambivalent, and detached relationship with

[defendant]," and "there is a low risk of the child suffering

severe and enduring psychological or emotional harm if her

relationship with [defendant] is permanently ended." By contrast,

he opined that Terri "has a significant and positive psychological

attachment and bond with . . . [Ruth]," and "there is a significant

risk of [Terri] suffering severe and enduring psychological and

emotional harm if her relationship with . . . [Ruth] is permanently

ended."

Ultimately, the expert recommended a permanency plan for

Terri that did not involve reunification with defendant, but

instead adoption by Ruth. Dr. Lee testified to the importance of

Terri having permanency with a consistent, stable, nurturing

9 A-4065-15T1
caregiver and that adoption would provide that permanency for her.

Dr. Lee concurred with Dr. Gruen that it would be more

damaging to Terri to lose her relationship with Ruth than to lose

her relationships with her biological siblings.

In support of her case, defendant presented expert testimony

from a psychologist, Andrew Brown, Ph.D., who rendered

psychological evaluations of defendant in 2013 and 2015, and also

performed bonding evaluations between Terri and defendant, and

Terri and Ruth.

Dr. Brown found that in the intervening years between his

evaluations of defendant, she had suffered a significant

deterioration in her mental health. He concluded that as a result

of her psychological issues, defendant was unable to safely parent

her daughter, and she required sustained individual psychotherapy

to address anxiety, mood, and self-esteem issues.

In addressing bonding, Dr. Brown found that Terri had a secure

bond with both defendant and Ruth, and she viewed Ruth as her

psychological parent. In reaching his conclusion about

defendant's bond with Terri, however, he relied in part upon

incorrect information that defendant had been the child's primary

caregiver in the first six months of her life.

Given the results of his bonding assessment, the psychologist

concluded that forced permanent separation of Terri from either

10 A-4065-15T1
defendant or Ruth would cause the child irreparable and enduring

psychological harm and trauma. He therefore opined that it was

in Terri's best interests to pursue a kinship legal guardianship

(KLG), as opposed to termination of defendant's parental rights.

Dr. Brown further testified that Ruth had advised him that

she was amenable to Terri continuing contact with defendant even

after adoption; if this were the case, the expert opined that

Terri would not suffer harm from a termination of her mother's

rights. He was concerned however, that Ruth's assurances of

continued contact between child and biological mother could not

be enforced if there were a termination of parental rights followed

by adoption.

On May 9, 2016, Judge Patricia Richmond rendered a thorough

oral decision. The judge found "much of [defendant's] testimony

and many of the contentions and positions that she has taken are

inherently not believable, do not deserve to have much credibility

assigned to them and demonstrated clear lack of judgment." In a

comprehensive assessment of the evidence presented, the judge

found that the Division had sustained its burden of proving the

elements of N.J.S.A. 30:4C-15(a) by clear and convincing evidence.

She stated:

This child, [Terri], should not have her life
on hold while the Court waits to learn if and
when [defendant] can become a reliable parent.

11 A-4065-15T1
 She has not demonstrated her ability to do so
since 1996 and the experts have said she is
not able to do so . . . in the foreseeable
future. And [Terri] simply does not have time
to wait to see what happens.

The judge determined that the child's best interests required

the termination of defendant's parental rights and a judgment of

guardianship was entered.

Defendant argues on appeal that the judge erred in concluding

that the Division satisfied its burden of proof on the third and

fourth prongs of the statutory best interests of the child test

under N.J.S.A. 30:4C-15.1(a)(3)and (4).4

N.J.S.A. 30:4C-15.1(a) authorizes the Division to petition

for the termination of parental rights in the "best interests of

the child" if the following standards are met:

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

(2) The parent is unwilling or unable to
eliminate the harm facing the child or is
unable or unwilling to provide a safe and
stable home for the child and the delay of
permanent placement will add to the harm.
Such harm may include evidence that separating
the child from his resource family parents
would cause serious and enduring emotional or
psychological harm to the child;

(3) The division has made reasonable efforts
to provide services to help the parent correct
the circumstances which led to the child's

4
The Law Guardian joins the Division in opposing the appeal.

12 A-4065-15T1
 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.

"Our review of a trial judge's decision to terminate parental

rights is limited." N.J. Div. of Youth & Family Servs. v. G.L.,

191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172

N.J. 440, 472 (2002)). "The general rule is that findings by the

trial court are binding on appeal when supported by adequate,

substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394,

411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins.

Co. of Am., 65 N.J. 474, 484 (1974)). Moreover, "[b]ecause of the

family courts' special jurisdiction and expertise in family

matters," we accord even greater deference to the judge's fact

finding. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.

328, 343 (2010) (alteration in original) (quoting Cesare, supra,

154 N.J. at 413). Unless the trial judge's factual findings are

"so wide of the mark that a mistake must have been made," they

should not be disturbed, even if the reviewing court would not

have made the same decision. N.J. Div. of Youth & Family Servs.

v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty,

Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.),

certif. denied, 117 N.J. 165 (1989)).

13 A-4065-15T1
 Defendant contends that the Division did not meet its burden

to prove prongs three and four of the statute by credible evidence.

She asserts that although the Division did provide her with

adequate services,5 the court did not fully consider under prong

three any alternatives to the termination of parental rights such

as a KLG placement with Linda so that Terri might be raised with

Ralph or a placement with defendant where Peter could assist with

raising his sister.

We are satisfied that Judge Richmond supported her conclusion

with credible evidence that the Division investigated and

reasonably ruled out alternate placements of the child, including

a proposed placement with Linda.

A KLG was correctly rejected because adoption was both

feasible and likely, as Ruth had unequivocally declared her desire

to adopt Terri. N.J.S.A. 3B:12A-6(d)(3); see N.J. Div. of Youth

& Family Servs. v. T.I., 423 N.J. Super. 127, 130 (App. Div. 2011)

(affirming that if adoption is available, KLG cannot be used to

defend against termination of parental rights).

Judge Richmond also reasonably rejected placement with

defendant, with Peter assisting her in raising Terri, given Peter's

failure to complete parenting classes and drug treatment, and his

5
The judge found the efforts of the Division to reunify defendant
with the child were "extraordinary."

14 A-4065-15T1
continued use of drugs. The court reasonably concluded that Peter

lacked the maturity and judgment to serve as a parent or caretaker

to his sister.

Finally, the court reasonably rejected placement with Linda.

Notably, the Division attempted a placement with Linda when Terri

was an infant. Linda rejected that placement because it would

have meant disrupting other children in her home. In the

intervening years, Terri became closely bonded with her resource

parent, and she developed no relationship with Linda. Thus, based

upon the totality of the evidence, including the testimony from

Drs. Gruen and Lee, the court reasonably concluded that disrupting

Terri's placement with Ruth would cause the child severe and

enduring harm.

In arguing that the Division failed to satisfy the

requirements of the fourth prong of the statute, defendant contends

that the judge did not properly assess her relationship with Terri

or Terri's relationship with her biological siblings when she

concluded that termination of parental rights was in the child's

best interests. We disagree.

We are mindful that while the law recognizes the importance

of sibling relationships, there is no requirement that children

be placed with them. Rather, the court must consider what is in

the child's best interests, under the circumstances presented. In

15 A-4065-15T1
re C.R., 364 N.J. Super. 263, 277-78 (App. Div. 2003), certif.

denied, 179 N.J. 369 (2004). See also N.J. Div. of Youth & Family

Servs. v. J.S., 433 N.J. Super. 69, 82 (App. Div. 2013)

("[A]lthough the Division has a statutory duty to evaluate

relatives as potential caretakers, there is no presumption

favoring the placement of a child with such relatives."), certif.

denied, 217 N.J. 587 (2014).

Contrary to defendant's argument, the judge considered the

relationship between Terri and her siblings. She also noted, and

accepted, the opinions of Drs. Gruen and Lee that it would not

harm Terri to lose contact with her siblings. Dr. Gruen noted

that Terri had very limited contact with Ralph, and although there

was "some bond with [Peter], it's not a close and emotional one."

The judge also addressed Dr. Brown's opinion in which he

advocated that parental rights not be terminated but also stated

Terri could not be returned to and parented by defendant. She

noted that the expert based his opinion in part on the strong bond

he found between defendant and Terri which he explained had formed

because defendant was the child's primary caregiver for the first

six or seven months of her life. This was factually incorrect.

As a result, the judge found Dr. Brown's opinion on this issue

lacked credibility.

The court's decision to reject the bonding opinion of Dr.

16 A-4065-15T1
Brown and accept the testimony of the other experts that there was

not a strong maternal bond is entitled to our deference. See N.J.

Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012);

see also In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).

Additionally, Dr. Brown opined that the court should consider

KLG. When questioned as to his understanding of the law that

requires that if adoption is feasible, a KLG is unavailable, he

stated that he knew the law but still thought KLG was the proper

remedy here. In addressing this statement, the judge stated:

We expect expert witnesses [who] come to court
to understand what the legal standards are.
. . . So Dr. Brown either didn't know what the
law of KLG was or he knew what it was and he
ignored it. Under either of those scenarios,
it leads me to find his opinion to be less
than credible.

We conclude that Judge Richmond supported her findings that

the Division proved all of the prongs by substantial credible

evidence. The judge conducted a well-reasoned assessment of the

evidence and thoroughly considered each prong of the statute. We

affirm substantially for the thoughtful reasons set forth in her

oral decision.

Affirmed.

17 A-4065-15T1