DCPP VS. C.L., B.W., J.O. AND C.C.IN THE MATTER OF THE GUARDIANSHIP OF M.K.W., M.J.C.AND S.C.O.

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NOT FOR PUBLICATION WITHOUT THE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-1596-16T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

C.L.,

Defendant-Appellant,

and

B.W., J.O., and C.C.,

Defendants.
_________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF M.K.W., M.J.C., and S.C.O.,
MINORS.
_________________________________

Submitted October 2, 2017 – Decided November 3, 2017

Before Judges Ostrer and Rose.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FG-07-0185-16.

Joseph E. Krakora, Public Defender, attorney
for appellant (Eric J. Meehan, Designated
Counsel, on the briefs).
 Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Joshua Bohn, Deputy Attorney General,
on the brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (James J. Gross,
Designated Counsel, on the brief).

PER CURIAM

Defendant, C.L.,1 appeals from the Family Part's November 30,

2016 judgment of guardianship2 terminating her parental rights to

three of her four biological children, M.K.W., born in November

2009, M.J.C., born in March 2011, and S.C.O., born in August 2012.3

Defendant contends plaintiff New Jersey Division of Child

Protection and Permanency ("Division") failed to prove the four

1
We use initials to protect the privacy of the parties. See R.
1:38-12(d)(12).
2
Judgment of guardianship by default was also entered against
defendant B.W., the biological father of M.K.W., and defendant
J.O., the biological father of S.C.O., neither of whom appeal.
The record indicates defendant C.C. defaulted and did not oppose
the termination of his parental rights because his biological
child, M.J.C., has been placed in the custody of C.C.'s mother.
Although the order reflects C.C. "does not wish to appeal the
termination of his parental rights," the order does not specify
that C.C.'s rights were terminated.
3
Defendant is also the biological mother of G.K., Jr., born in
March 2014. G.K., Sr. is the biological father of G.K., Jr.
Although originally named as parties in this action, G.K., Sr. and
G.K., Jr. were subsequently dismissed from the guardianship
complaint, and G.K., Jr. was placed in the custody of G.K., Sr.

2 A-1596-16T1
prongs set forth in N.J.S.A. 30:4C-15.1(a) by clear and convincing

evidence. The law guardian supported termination before the trial

court and, on appeal, joins the Division in urging us to affirm.

Having considered defendant's arguments in light of the record and

controlling law, we affirm the judgment of guardianship and remand

to correct the order.

I.

We discern the following facts and procedural history from

the record on appeal. Defendant's history of involvement with

child protection agencies began in 2010 with New York City

Administration for Children's Services ("ACS"). The Division

became involved with defendant in early December 2014, following

a referral from ACS concerning defendant's mental health, non-

compliance with prescribed medication and court-ordered treatment

services, alcohol and substance abuse, inadequate guardianship and

domestic violence. ACS believed defendant was living in New

Jersey, and a warrant related to a domestic violence incident was

pending against her.

On December 20, 2014, the Division received a referral from

the Newark Police Department that defendant had witnessed M.K.W.

and M.J.C. engaging in oral sex at G.K., Sr.'s home. The same

day, the Division interviewed defendant and M.K.W.

3 A-1596-16T1
 Defendant confirmed she had witnessed the sexual incident

between her sons, but did not immediately notify the police because

she thought G.K., Sr. would "handle it." Defendant acknowledged

she and G.K., Sr. had ongoing domestic violence issues, but they

continued to reside together because she did not have anywhere

else to live. Defendant stated further she had been diagnosed

with bipolar disorder, but was not taking any medication or

pursuing any medical treatment. Defendant declined the Division's

request for a urine screening, but admitted she had used marijuana

in the past.

M.K.W. confirmed M.J.C. had performed oral sex on him, but

that G.K., Sr.'s oldest son, J.K., had orchestrated the act.

M.K.W. also stated that J.K. had forced M.K.W. to perform oral sex

on J.K. Based on the ongoing domestic violence concerns,

defendant's untreated medical condition, and the potential for

harm from J.K., the Division executed an emergency "Dodd" removal4

of defendant's four children pursuant to N.J.S.A. 9:6-8.28 on

December 20, 2014.

On December 23, 2014, the court awarded custody, care, and

supervision of all four children to the Division and appointed a

4
A Dodd removal is an emergent removal of a minor without a court
order pursuant to N.J.S.A. 9:6-8.21 to -8.82 known as the Dodd
Act. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17,
26 n.11 (2011).

4 A-1596-16T1
law guardian. The court ordered the Division to refer defendant

for psychiatric and psychological evaluations, and a Certified

Alcohol Drug Counselor ("CADC") assessment. The court also ordered

the Division to refer defendant and G.K., Sr. to a domestic

violence liaison. Defendant was granted two hours of weekly

supervised visitation. On the same date, defendant tested positive

for marijuana.

Over the next year, the Division provided defendant with

court-ordered services, without success. Defendant's lack of

compliance is marked by her repeated refusal to attend psychiatric

evaluations, failure to complete a CADC assessment, and non-

compliance with parenting classes. Throughout the year, defendant

resided primarily in homeless shelters.

During the fact-finding hearing on April 16, 2015, defendant

executed a Voluntary Stipulation/Admission to Child Abuse or

Neglect pursuant to N.J.S.A. 9:6-8.21(c). Among other things,

defendant admitted her long history with ACS in New York due to

inadequate supervision of her children, housing instability,

substance abuse, and mental health issues. She admitted further

she failed to immediately contact the authorities when she

witnessed the inappropriate sexual behavior between her sons.

Defendant acknowledged these circumstances constituted inadequate

supervision and placed her children at risk of harm.

5 A-1596-16T1
 Following a permanency hearing on December 17, 2015, the

court approved the Division's plan of termination of defendant's

parental rights to M.K.W., M.J.C. and S.C.O.5 On January 28, 2016,

the Division filed a complaint for guardianship for the three

children. The Division continued to refer defendant for services,

but she remained non-compliant.

Trial was held on November 30, 2016. The Division presented

testimony from a caseworker, and Dr. Peter DeNigris, an expert in

psychology. Dr. Andrew Brown, also qualified as an expert in

psychology, testified on behalf of defendant.

At the conclusion of trial, the judge placed his oral decision

on the record, finding the Division presented clear and convincing

evidence of the four prongs of the N.J.S.A. 30:4C-15.1(a) "best

interests of the child" test necessary to terminate defendant's

rights to M.K.W., M.J.C. and S.C.O. The court approved "a

permanency plan of termination of parental rights followed by

5
Although G.K., Jr. and G.K., Sr. were removed from the
litigation, the court determined, at the permanency hearing, it
was not safe to return G.K., Jr. to defendant due to her unstable
housing and unrectified substance abuse and mental health illness
during the past year that G.K., Jr. has been in placement.

6 A-1596-16T1
adoption with the foster homes as to the older children and the

younger to a select home."6

On appeal, defendant argues the judgment of guardianship

should be reversed because the Division failed to prove all four

prongs of the best interests standard by clear and convincing

evidence, and the trial judge's findings were not sufficiently

thorough to meet the required standard under Rule 1:7-4. We

disagree.

II.

The scope of our review on an appeal from an order terminating

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)). We will uphold a trial judge's

factfindings if 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) (citing N.J. Div. of Youth & Family Servs.

v. E.P., 196 N.J. 88, 104 (2008)). 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

6
Following C.C.'s recommendation, on October 30, 2016, the
Division had placed M.J.C. with his paternal grandmother who
planned to adopt him.

7 A-1596-16T1
related to the family." N.J. Div. of Youth & Family Servs. v.

F.M., 211 N.J. 420, 448 (2014) (citing Cesare v. Cesare, 154 N.J.

394, 413 (1998)). "Only when the trial court's conclusions are so

'clearly mistaken' or 'wide of the mark' should an appellate court

intervene and make its own findings to ensure that there is not a

denial of justice." E.P., supra, 196 N.J. at 104 (quoting G.L.,

supra, 191 N.J. at 605)).

When terminating parental rights, the court focuses on the

"best interests of the child standard," and may grant a petition

when the following four prongs are established 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 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

8 A-1596-16T1
 (4) Termination of parental rights will not
do more harm than good.

[N.J.S.A. 30:4C-15.1(a); see also In re
Guardianship of K.H.O., 161 N.J. 337, 347-48
(1999).]

"The four criteria enumerated in the best interests standard are

not discrete and separate; they relate to and overlap with one

another to provide a comprehensive standard that identifies a

child's best interests." K.H.O., supra, 161 N.J. at 348.

The trial judge conducted a fact-sensitive analysis of the

four prongs. The testimony of the witnesses and the record before

the court support its findings.

The trial judge's findings concerning the first and second

prongs overlapped. Because they are related, evidence supporting

the first prong may also support the second prong "as part of the

comprehensive basis for determining the best interests of the

child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999);

see also N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J.

Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257

(2007).

As to prong one, "the Division must prove harm that 'threatens

the child's health and will likely have continuing deleterious

effects on the child.'" N.J. Div. of Youth & Family Servs. v.

A.L., 213 N.J. 1, 25 (2013) (quoting K.H.O., supra, 161 N.J. at

9 A-1596-16T1
352)). Generally, the proofs "'focus on past abuse and neglect

and on the likelihood of it continuing.'" N.J. Div. of Youth &

Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.)

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

certif. denied, 192 N.J. 68 (2007). Moreover, in guardianship and

adoption cases, the child's need for permanency and stability is

central. K.H.O., supra, 161 at 357.

It is well settled that the Division need not demonstrate

actual harm 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 focus under the first prong is

not on any "single or isolated harm," but rather on "the effect

of harms arising from the parent-child relationship over time on

the child's health and development." K.H.O., supra, 161 N.J. at

348 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.

591, 604-10 (1986)). The harm may be established by "a delay in

establishing a stable and permanent home." D.M.H., supra, 161 N.J.

at 383.

The second prong of the best interests standard relates to

parental unfitness. K.H.O., supra, 161 N.J. at 352. 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,

10 A-1596-16T1
in many ways, addresses considerations touched on in prong one."

F.M., supra, 211 N.J. at 451.

The record supports the trial judge's ruling that the Division

established the first and second prongs by clear and convincing

evidence. At the outset of his decision, the trial judge found

the experts agreed defendant was incapable of parenting at the

present time and in the foreseeable future.

Specifically, Dr. DeNigris' testimony at trial reiterated the

conclusion he reached when he assessed defendant six months

earlier, that is, she is not fit to parent. He testified

defendant's untreated mental health issues, combined with her

possible substance abuse, create a safety risk for the children.

Moreover, defendant's noncompliance with treatment suggests her

mental health issues remain untreated and undermine her goal of

reunification. Defendant's expert, Dr. Brown, agreed, "[s]he

cannot parent, certainly in her current state of mind, and she

could not parent when I saw her."

The trial court expounded further:

It's clear that she's had a long history with
the Division, a long history with ACS four
years before that . . . . She has raised
substantial issues regarding her mental
health, her compliance with mental health
treatment, her housing and instability, her
drug use. All of these issues were there
initially, were there before the Division got
involved, and continue exactly the same today.

11 A-1596-16T1
 . . . .

[S]he's had a very long history as a child
under Division custody, of . . . being raised
by relatives, losing it, being in foster care,
running away, sexually abused, physically
abused. She describes a mental history . . .
going back to age six and being medicated back
then.

And -- unfortunately, no one has broken
through that barrier and I don't know how
that's going to happen without [defendant's]
cooperation.

Both experts diagnosed defendant as bipolar and having post-

traumatic stress disorder. In fact, Dr. Brown observed a manic-

depressive episode by defendant outside the courtroom on the day

of trial.

The trial court was unpersuaded, however, by Dr. Brown's

testimony suggesting defendant's lack of compliance with

medication and services was a result of the Division's failure to

afford defendant cognitive behavioral therapy which focuses on the

patient's level of awareness through education and repeated

exposure. As the trial court observed, however,

. . . you can offer anything, a Ph.D., you can
offer an M.D., you can offer any type of
service available. But you're never going to
get any benefit unless she actually goes and
participates.

We are satisfied, therefore, the record supports the trial

court's determination that the Division satisfied prongs one and

12 A-1596-16T1
two by clear and convincing evidence. Defendant was not only

offered mental health treatment services by the Division, but also

by ACS, four years before defendant became known to the Division.

Clearly, defendant's inability to treat her mental health issues

and provide a stable home placed the children in an unsafe

environment, commencing with their exposure to inappropriate

sexual behavior and domestic violence when residing with

defendant. In the nearly two years since their removal, defendant

did not avail herself of services to treat her mental illness. As

the trial court observed:

We don't have any way of making someone comply
with services if they are not motivated to do
so.

Now, the mental health may be causing lack of
motivation, that may be the cause. But we
don't have any way of treating it without
their cooperation and agreement to be treated.
And agreement to services. We can't make them
do things they don't want to do.

Therefore, there is substantial credible evidence supporting

the judge's findings that defendant is unwilling or unable to

eliminate the harm facing the children, or is unable or unwilling

to provide a safe home for the children.

The third prong requires the Division to make diligent efforts

to reunite the family. K.H.O., supra, 161 N.J. at 354. Reasonable

efforts will vary with the circumstances. F.H., supra, 389 N.J.

13 A-1596-16T1
Super. at 620. Whether a parent successfully completed the

services offered is not relevant to whether the third prong has

been met because the Division's efforts are not measured by their

success. D.M.H., supra, 161 N.J. at 393. "These efforts must be

assessed against the standard of adequacy in light of all the

circumstances of a given case." Ibid.

Defendant contends the record does not support the court's

legal conclusion that the Division satisfied its statutory

obligation to provide defendant with reasonable services to

effectuate reunification. She contends the Division failed to

make referrals for five months. Through the testimony of Dr.

Brown, she also claims the Division failed to tailor her mental

health treatment to her needs. The record, however, belies her

contentions.

The record reflects the Division offered defendant a host of

services, over the course of a year, prior to filing the

guardianship complaint, and thereafter. Referencing reports in

evidence, the caseworker testified the Division afforded defendant

psychological and bonding evaluations, multiple CADC assessments,

individual behavioral therapy, parenting classes, and assistance

in obtaining suitable housing and employment, but she failed to

follow through with the services, or provide proof of employment.

14 A-1596-16T1
 Contrary to defendant's contention, the caseworker stated the

Division referred defendant for a psychological evaluation and

individual therapy sessions during the five-month period at issue.

Moreover, defendant advised the Division she was receiving

psychiatric treatment, medication and recommendations for therapy

from Project Renewal during this timeframe.

We are satisfied, therefore, there is compelling evidence in

the record that defendant simply failed to avail herself of the

services offered by the Division. Thus, the judge's findings that

the Division made reasonable efforts to provide services to

defendant was amply supported.

Furthermore, the record supports the court's recognition that

alternatives to termination of parental rights pursuant to

N.J.S.A. 30:4C-15.1(a)(3) were unavailable in this matter.

Defendant failed to propose any relatives for placement for the

children. C.C. provided his mother as a placement source, and

probable adoptive mother for M.J.C. Having defaulted, neither

B.W. nor J.O. participated in the matter on behalf of their

respective children. Because there were no alternatives to

termination of defendant's parental rights, we are satisfied,

there is ample support in the record to support the court's

determination that "permanency . . . can only be done through

termination of parental rights."

15 A-1596-16T1
 As to the fourth prong, while termination of parental rights

poses a risk to children, due to the severing of the relationship

with their natural parents, it is based "on the paramount need the

children have for permanent and defined parent-child

relationships." K.H.O., supra, 161 N.J. at 355 (quoting J.C.,

supra, 129 N.J. at 26)). Thus, "the fourth prong of the best

interests standard [does not] require a showing that no harm will

befall the child as a result of the severing of biological ties."

Id. at 355.

When the case involves a foster placement, "the court must

inquire into the child's relationship both with her biological

parents and her foster parents." Ibid. However, when a

termination action is not based on bonding between foster parents

and the child, the inquiry is focused on the child's need for

permanency and the parent's inability to care for the child in the

foreseeable future. N.J. Div. of Youth and Family Servs v. B.G.S.,

291 N.J. Super. 582, 593 (App. Div. 1996). Termination of parental

rights is appropriate "where a child has been in placement for

more than one year, and the family has failed to remedy the

problems that cause placement, despite [the Division's] diligent

efforts." K.H.O., supra, 161 N.J. at 358.

Although there are "very few scenarios" in which comparative

bonding evaluations are not required, N.J. Div. of Youth & Family

16 A-1596-16T1
Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009), this

case presents such a scenario. The argument that the fourth prong

is satisfied here is not that the children would be harmed by

losing their relationship with their respective foster parents,

which plainly would require comparative evaluations. See J.C.,

supra, 129 N.J. at 18. Rather, the harm posed is defendant's

unfitness as a parent, irrespective of any attachment any of the

children has to his or her foster family.

We recognize that great harm can result if termination is

ordered "without any compensating benefit, such as adoption," and

that "[s]uch harm may occur when a child is cycled through multiple

foster homes" following termination. E.P., supra, 196 N.J. at

109. However, a child's need for permanency and stability is a

"central factor" in these cases. K.H.O., supra, 161 N.J. at 357-

58. Indeed, our courts have long recognized that termination may

be warranted where no immediate prospect for adoption exists and,

consequently, where no comparative evaluations with prospective

adoptive parents could even be available. A.W., supra, 103 N.J.

at 611. This can occur in circumstances where the search for an

appropriate home cannot be undertaken until after termination.

Notwithstanding defendant's argument that the children were

bonded to her, and that the Division had not found an adoptive

home for S.C.O., giving due deference to the judge's findings,

17 A-1596-16T1
F.M., supra, 211 N.J. at 448-49, we are satisfied the judge did

not err in finding the Division provided clear and convincing

evidence as to the fourth prong.

Specifically, the court acknowledged both experts agreed

there would be some harm if defendant's parental rights were

terminated. However, the court found there was no possibility in

the near future the children would achieve permanency without

termination. The court concluded termination would not do more

harm than good because of the importance of permanency.

The evidence in the record supports the court's findings.

Initially, Dr. DeNigris testified that, while a healthy bond exists

between defendant and her children, her untreated mental health

issues would cause more harm to the children if they were reunited.

He reasoned that the children have been removed from defendant's

care for nearly two years, yet despite numerous chances, she has

failed to address the issues. He opined that termination of

defendant's parental rights followed by adoption was in the best

interests of the children. He concluded that, based on defendant's

failure to comply, delaying termination would be unreasonable.

Secondly, the caseworker testified as to the children's

needs. M.K.W. has medical and emotional issues requiring extensive

medical attention and ongoing therapy. M.J.C. also requires

therapy and services from the school he attends. S.C.O. has

18 A-1596-16T1
behavioral issues that require attendance at a therapeutic nursery

school. The caseworker confirmed that the children would be at

risk of abuse and neglect if they were reunited with defendant.

Considering defendant's long history of non-compliance and

inability to address her mental health issues, the trial court

properly adopted both experts' opinions that defendant was

incapable of parenting, and found the only chance the children

have for permanency is termination of defendant's parental rights.

Had defendant exhibited progress in addressing the issues that

prevented her from offering her children a stable environment, she

may have offered a better alternative than the homes in which the

children then resided.

Moreover, the court found defendant incapable of meeting the

special needs of all three children. Although M.K.W. and M.J.C.

were not adopted at the time of trial, they remained in foster

care placements with the hope of adoption,7 while the plan for

S.C.O. was select home adoption.

7
In her June 26, 2017 reply brief, defendant argues, without
providing a certification or other documentation, that the
Division's placements of M.K.W. and M.J.C. failed in May 2017.
These post-trial changes in placement are not properly before us,
and do not alter our conclusion as our prong four analysis in this
case was not premised on the children's bonding with their
respective resource parents, but rather on defendant's ongoing
parental unfitness.

19 A-1596-16T1
 Because defendant had not addressed the issues that led to

the children's removal, the judge properly considered the

children's need for permanency and stability, finding "there is

no possibility in the foreseeable future that they will ever get

permanency unless we terminate parental rights."

We are satisfied the Division proved all four prongs and

termination of defendant's parental rights to M.K.W., M.J.C. and

S.C.O. was properly ordered.

Affirmed in part; remanded in part for correction of the

judgment of guardianship, within thirty days, to reflect C.C.'s

parental rights to M.J.C. were terminated.8 We do not retain

jurisdiction.

8
See supra, footnote 2.

20 A-1596-16T1