DCPP VS. T.M.K. AND V.S.P.IN THE MATTER OF THE GUARDIANSHIP OF K.M.K.(FG-01-0058-16, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-1687-16T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

T.M.K.,

Defendant-Appellant,

and

V.S.P.,

Defendant.

IN THE MATTER OF THE GUARDIANSHIP OF
K.M.K.,

Minor.

Submitted September 12, 2017 – Decided September 20, 2017

Before Judges Carroll and Leone.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Atlantic County, Docket No. FG-01-0058-16.
 Joseph E. Krakora, Public Defender, attorney
for appellant (John A. Salois, Designated
Counsel, on the briefs).

Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Daniel Pierre, Deputy Attorney
General, on the brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Caitlin
McLaughlin, Designated Counsel, on the brief).

PER CURIAM

Defendant T.M.K., the biological father of K.M.K., appeals

from the December 12, 2016 Family Part judgment for guardianship

that terminated his parental rights to his son, who was born in

August 2008.1 Defendant contends that the New Jersey Division of

Child Protection and Permanency (Division) failed to prove each

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

evidence. Having considered defendant's arguments in light of the

record and applicable legal standards, we affirm.

I.

Judge W. Todd Miller conducted the guardianship trial on

December 2, 2016. The Division presented the testimony of expert

psychologist Alan J. Lee, Psy.D., caseworker Danielle Lind, and

1
The judgment also terminated the parental rights of K.M.K.'s
biological mother, V.S.P., who voluntarily surrendered her
parental rights on October 12, 2016, and is not involved in this
appeal.

2 A-1687-16T1
defendant, who also testified on his own behalf. On December 12,

2016, Judge Miller rendered a thorough twenty-six page opinion in

which he outlined his findings regarding all four prongs of the

statutory test. We incorporate by reference Judge Miller's

detailed factual findings, and highlight the following.

Judge Miller found Dr. Lee's testimony "very convincing,

reliable and credible," and noted that his expert testimony "was

not impeached during cross-examination or undermined by competing

expert opinions." The judge similarly found Lind's testimony

"credible and reliable." He noted that Lind "clearly delineated

the extraordinary efforts initiated by the Division to aid and

assist defendant" and that her testimony was not "impeached or

undermined by opposing testimony offered by [] defendant." In

contrast, the judge found:

Defendant's testimony was not reliable or
trustworthy. This is not to say he was
untruthful. Rather[,] he did not have a good
grasp of the file history, timeline and
substantive activities. Indeed, he made up
untold number of excuses for his shortcomings
when it came to consistency of parenting time,
missing provider or therapeutic appointments,
and positive drug testing results.

After carefully reviewing the evidence presented, Judge

Miller made the following factual findings:

1. Defendant is the biological father of
[K.M.K.] . . . [who was] eight years old as
of this decision[].

3 A-1687-16T1
2. [K.M.K.] was removed from [] defendant's
home by the Division on at least two occasions
since 2008, due to lack of parenting skills
and drug use in the home.

3. Defendant was incarcerated for at least
three years after [K.M.K.] was born.

4. Defendant has a history of criminal
activity related to drug use/distribution and
weapons.

5. Defendant has a long history of mental
deficits and he has not sought and/or
participated in consistent treatment of same.

6. The Division provided defendant with many
services including mental health and drug
treatment. Defendant failed to complete any
of the services provided.

7. Defendant has not demonstrated stable
housing or stable income during [K.M.K.'s]
lifetime. Defendant has not provided [K.M.K.]
with child support.

8. Defendant is remarkably inconsistent in his
parenting time with [K.M.K.].

9. [K.M.K.'s] biological mother surrendered
her parental rights to [K.M.K.] on October 12,
2016.

10. [K.M.K.] has spent the majority of his
eight years after birth in a resource home due
to his biological parents being involved in
drug related and criminal activity.

11. [K.M.K.] is currently bonded with his
resource parents as observed and opined by Dr.
Lee. The resource parents are also providing
a home for [K.M.K.'s] half sibling J., and
they have bonded.

4 A-1687-16T1
 12. [K.M.K.] has no significant bond with
defendant as observed and opined by Dr. Lee.

Based on these findings, Judge Miller concluded that the Division

proved by clear and convincing evidence the four prongs of the

best interests test, codified in N.J.S.A. 30:4C-15.1a(1) to -

15.1a(4), and that defendant's parental rights to K.M.K. should

be terminated.

II.

We begin our analysis by recognizing the fundamental

proposition that parents have a constitutionally protected right

to the care, custody and control of their children. Santosky v.

Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d

599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346

(1999). "The rights to conceive and to raise one's children have

been deemed 'essential,' 'basic civil rights . . .,' 'far more

precious . . . than property rights.'" Stanley v. Illinois, 405

U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972)

(citations omitted). "The preservation and strengthening of

family life is a matter of public concern as being in the interests

of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O.,

supra, 161 N.J. at 347.

The constitutional right to the parental relationship,

however, is not absolute. N.J. Div. of Youth & Family Servs. v.

5 A-1687-16T1
A.W., 103 N.J. 591, 599 (1986). At times, the parent's interest

must yield to the State's obligation to protect children from

harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To

effectuate these concerns, the Legislature created a four-prong

test for determining whether a parent's rights must be terminated

in the child's best interests. This statutory test requires that

the Division prove by clear and convincing evidence that:

(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 [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 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-15.1a.]

These "four prongs 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." N.J. Div. of Youth &

6 A-1687-16T1
Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citations

omitted).

The Division need not demonstrate actual harm in order to

satisfy prong one. N.J. Div. of Youth & Family Servs. v. A.G.,

344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171

N.J. 44 (2002). The test is whether the child's safety, health

or development will be endangered in the future and whether the

parent is or will be able to eliminate the harm. A.G., supra, 344

N.J. Super. at 440. Prong one can be satisfied where a parent

refuses to treat his or her mental illness and the mental illness

poses a real threat to a child. F.M., supra, 211 N.J. at 450-51;

see also In re Guardianship of R.G. and F., 155 N.J. Super. 186,

194 (App. Div. 1977) (holding that the parents' mental illnesses

created an environment in which they were unable to adequately

care for and raise their children, thus causing them harm, despite

the absence of physical abuse or neglect); A.G., supra, 344 N.J.

Super. at 438-39 (holding that the fact that parents may be morally

blameless is not sufficient when psychological incapacity makes

it impossible for them to adequately care for a child).

In addition, a parent's failure to provide a "permanent,

safe, and stable home" engenders significant harm to the child.

In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Likewise,

a parent's failure to provide "solicitude, nurture, and care for

7 A-1687-16T1
an extended period of time is in itself a harm that endangers the

health and development of the child." Id. at 379. Compounding

the harm is the parent's "persistent failure to perform any

parenting functions and to provide . . . support for [the child]."

Id. at 380. Such inaction "constitutes a parental harm to that

child arising out of the parental relationship [that is] cognizable

under N.J.S.A. 30:4C-15.1(a)(1) and (2)." Id. at 380-81.

"The second prong, in many ways, addresses considerations

touched on in prong one." F.M., supra, 211 N.J. at 451. The

focus is on parental unfitness. K.H.O., supra, 161 N.J. at 352;

D.M.H., supra, 161 N.J. at 378-79. In considering this prong, the

court should determine whether it is reasonably foreseeable that

the parent can cease to inflict harm upon the child. A.W., supra,

103 N.J. at 607. The second prong may be satisfied

by indications of parental dereliction and
irresponsibility, such as the parent's
continued or recurrent drug abuse, the
inability to provide a stable and protective
home, the withholding of parental attention
and care, and the diversion of family
resources in order to support a drug habit,
with the resultant neglect and lack of nurture
for the child.

[K.H.O., supra, 161 N.J. at 353.]

"Prong two may also be satisfied if 'the child will suffer

substantially from a lack of . . . a permanent placement and from

8 A-1687-16T1
the disruption of [the] bond with foster parents.'" F.M., supra,

211 N.J. at 451 (quoting K.H.O., supra, 161 N.J. at 363).

"The third prong requires an evaluation of whether [the

Division] 'made reasonable efforts to provide services to help the

parent' remedy the circumstances that led to removal of the

children from the home." Id. at 452 (quoting N.J.S.A. 30:4C-

15.1a(3)). The emphasis on the third prong

is on the steps taken by [the Division] toward
the goal of reunification. The diligence of
[the Division's] efforts on behalf of a parent
is not measured by whether those efforts were
successful. 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. Experience tells us that even
[the Division's] best efforts may not be
sufficient to salvage a parental relationship.

[Ibid. (citation omitted).]

As part of the inquiry, "the court must consider the alternatives

to termination of parental rights and whether the Division acted

reasonably." A.G., supra, 344 N.J. Super. at 434-35. "The

reasonableness of the Division's efforts depends on the facts in

each case." Id. at 435.

The fourth prong seeks to determine whether "[t]ermination

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

30:4C-15.1a(4). The fourth prong serves as a "'fail-safe' inquiry

9 A-1687-16T1
guarding against an inappropriate or premature termination of

parental rights." F.M., supra, 211 N.J. at 453. "The 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 the parent."

N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108

(2008). The court must determine "whether . . . the child will

suffer a greater harm from the termination of ties with [his or]

her natural parents than from the permanent disruption of [his or]

her relationship with [his or] her foster parents." K.H.O., supra,

161 N.J. at 355.

Because harm to the child stemming from termination of

parental rights is inevitable, "the 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."

Ibid. Rather, the court's inquiry is one of comparative harm, for

which the court must consider expert evaluations of the strength

of the child's relationship to the biological parents and the

foster parents. Ibid. Thus, "'[t]o satisfy the fourth prong, the

[Division] 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.'" F.M., supra, 211 N.J.

10 A-1687-16T1
at 453 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189

N.J. 261, 281 (2007)). "Under this prong, an important

consideration is [a] child's need for permanency. Ultimately, a

child has a right to live in a stable, nurturing environment and

to have the psychological security that his most deeply formed

attachments will not be shattered." Ibid. (citations omitted).

III.

In the present case, with regard to the first prong, Judge

Miller found that:

Defendant suffers from significant mental
health deficits, substantial drug dependency,
and criminal history. These concerns have not
been resolved despite the efforts and services
offered by the Division. Dr. Lee addressed
these concerns and deficits in his assessments
and testimony. Indeed, he convincingly opined
that defendant has not and will not offer
[K.M.K.] a stable or nurturing home in the
near future. He requires ongoing mental
health treatment based upon his independent
diagnostic assessments and defendant should be
supervised while undergoing treatment.

Defendant has not availed himself [of]
services. He has consistently missed a
substantial number of urine screens,
therapeutic appointments, and parenting
appointments. Defendant opted to pursue drug
use and other criminal activity resulting in
his incarceration, leaving [K.M.K.] without a
father for most of his lifetime (he is now
eight [] years old). Defendant was woefully
inconsistent with parenting/visitation,
psychological treatment, and rehabilitation
services, even when he was not incarcerated.
This required [K.M.K.] to be placed in foster

11 A-1687-16T1
 care for most of his eight years. Indeed,
[K.M.K.] has expressed fear that he will be
reunified with his father and in fact has
related nightmares, notwithstanding the
services provided to [K.M.K.] by the Division.
This clearly demonstrates past and prospective
harm.

In considering the second prong, Judge Miller concluded that

defendant "is unwilling or unable to eliminate the aforesaid harm

facing [K.M.K.] or to provide a safe and stable home and that the

delay of permanent placement will only add to the harm thus

suffered." The judge acknowledged defendant was "making a last

minute effort to engage in services," but found "even at this late

date his compliance has been less than stellar," including with

mental health services. The judge noted,

[K.M.K.] has bonded with his pre-adoptive
resource parents according to Dr. Lee and the
Division caseworker. He refers to them as mom
and dad. He responds to them in a loving and
self-assured manner. He interacts with them
with confidence rather than with indifference
or fear. They have the potential to provide
an enduring and loving home to [K.M.K.]. This
arrangement represents the first viable option
for permanency. [K.M.K.] has likewise
expressed his desire[] to be adopted by his
current resource parents.

As to prong three, Judge Miller found that the Division

provided defendant and K.M.K. "with a myriad of services" and

that "defendant did not [] successfully complete any of the

services provided, even though [they] were designed to address

12 A-1687-16T1
most, if not all, of his underlying deficits." Defendant complains

the court made some visitation discretionary with K.M.K., but the

judge explained that was necessary because of K.M.K.'s

"apprehension and fear of defendant," which caused K.M.K.

nightmares and great suffering. The judge further reasoned:

Dr. Lee was found to be reliable and credible.
There were no competing experts challenging
the opinions Dr. Lee offered. In the absence
of a competing expert, Dr. Lee still must
satisfy the [c]ourt that his opinions are
supportable, and they were. His opinions were
supported by competent factual evidence that
was utilized in conjunction with reliable
techniques and standardized testing common in
the field of psychology. His opinions
reliably established that [K.M.K.] will not
suffer any long or enduring harm if the
parental rights of defendant are terminated,
because there is no bond, connection, or
enduring love between [K.M.K.] and his father.
Conversely, Dr. Lee opined that if [K.M.K.]
is removed from his pre-adoptive resource
home, he will likely suffer lasting harm that
could manifest as anxiety, depression, loss
of self-esteem, impulse control, and other
behavior related problems in part, because of
the bond that is occurring with the resource
parents and half-sibling.

Our scope of review on appeals from orders terminating

parental rights is limited. In such cases, the trial court's

findings generally should be upheld so long as they are supported

by "adequate, substantial, and credible evidence." N.J. Div. of

Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). A

decision in this context should only be reversed or altered on

13 A-1687-16T1
appeal if the trial court's findings were "so wholly unsupportable

as to result in a denial of justice." N.J. Div. of Youth & Family

Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting In re

Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We must give

substantial deference to the trial judge's opportunity to have

observed the witnesses first hand and to evaluate their

credibility. R.G., supra, 217 N.J. at 552. Even where the

appellant "allege[s] error in the trial judge's evaluation of the

underlying facts and the implications to be drawn therefrom,"

deference must be afforded unless the court "went so wide of the

mark that a mistake must have been made." M.M., supra, 189 N.J.

at 279 (citations omitted).

Our review of this record convinces us that no mistake was

made, and that Judge Miller's decision is supported by clear and

convincing evidence and carefully tracks the statutory

requirements of N.J.S.A. 30:4C-15.1a. Defendant's contentions to

the contrary do not provide grounds for intervention. Accordingly,

we affirm the termination of defendant's parental rights to K.M.K.

substantially for the reasons set forth in Judge Miller's

comprehensive and thoughtful written opinion.

Affirmed.

14 A-1687-16T1