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NOT FOR PUBLICATION WITHOUT THE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-0321-18T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
T.T.B.,
Defendant-Appellant,
and
B.L.M.,
Defendant.
____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF B.T.M.,
and Y.L.M.,
Minors.
____________________________
Submitted June 25, 2019 – Decided July 25, 2019
Before Judges Rothstadt and Suter.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FG-11-0029-18.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Steven Edward Miklosey, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Peter C. Thambidurai, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors B.T.M. and Y.L.M. (Rachel E.
Seidman, Assistant Deputy Public Defender, of counsel
and on the brief).
PER CURIAM
Defendant T.T.B. (Theresa) 1 appeals from the Family Part's September 4,
2018 Judgment of Guardianship terminating her and B.L.M.'s (Benjamin) 2
parental rights to B.T.M. (Brittany) and Y.L.M. (Yosef), who were ten and
thirteen years old respectively at the time of trial. On appeal, Theresa challenges
the trial judge's findings as to prongs three and four of the best interests of the
child test, N.J.S.A. 30:4C-15.1(a). She argues that the Division did not prove
1
Pursuant to Rule 1:38-3(d), we use initials and fictitious names to protect the
confidentiality of the participants in these proceedings.
2
Benjamin has not filed an appeal.
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2
the third prong because it "failed to complete its assessment of" one of her out-
of-state relatives, "did not give adequate weight to the children's expressed
wishes" to live with that relative and, as to the fourth prong, erred in finding that
termination would not do more harm than good because the Division did not
assess the relative as an alternative and the children did not have a "warm
relationship" with their resource parent. We find no merit to these contentions.
We affirm because we find substantial credible evidence in the record to support
the judge's determination.
The facts as developed at trial are summarized here and focus only upon
those relating to Theresa's challenge. After Brittany was born and tested
positive for cocaine, Theresa left the residence where she lived with the children
and Benjamin pursuant to a Safety Protection Plan the family agreed to with
plaintiff, the Division of Child Protection and Permanency (Division), that
placed the children in Benjamin's custody and care. Thereafter, in 2015, the
Division removed the children from Benjamin's care after an incident involving
Benjamin being intoxicated and exposing the children to a dangerous smoke
hazard in the home. As a result of that incident, Benjamin was arrested for
endangering the welfare of the children and the Division attempted to locate
family members who would care for the children.
A-0321-18T2
3
Initially, the Division attempted to contact C.B., the children's biological
sister, and W.B., the children's maternal great-grandmother, to no avail. An
investigator contacted S.W., Theresa's biological sister, who stated that she was
willing to care for the children, but later advised that her home could not
accommodate them. Later that day, investigators were able to get in touch with
W.B., who reported that she was willing to provide care, but lived in a one-
bedroom apartment with her husband. An investigator contacted B.M, the
children's paternal grandmother, who informed that she was not able to care for
the children, but provided the telephone numbers of her adult children, L.M. and
T.M. (Terrence), the children's biological paternal aunt and uncle.
An investigator also received a phone call from Theresa, who stated that
she was willing to have the children placed in her home. Theresa also requested
that the Division consider her aunt, S.V. (Samantha), as a placement option.
Samantha, who lived in Pennsylvania, stated that she was willing to care for the
children.
As the Division could not immediately locate any suitable relative
caregiver for the children, it served Theresa with notice of its intent to conduct
A-0321-18T2
4
an emergent "Dodd"3 removal and place the children with a non-relative
resource family. In response, Theresa again stated that the children had not lived
with her for two years but that she was interested in the children residing with
her. Theresa claimed that she had a history of substance abuse but had been
sober for over seven years. She was open to a substance abuse evaluation and
agreed to submit to a urine drug screen. The children were placed in a non-
relative resource home that night.
Thereafter, the Division attempted to evaluate and treat Theresa's drug
addiction issues, but they were not successful. On October 7, 2015, Theresa
completed a urine drug screen which tested positive for Phencyclidine (PCP).
Theresa was referred for a substance abuse evaluation on October 30, 2015,
which she failed to attend, and her appointment was rescheduled for November
9, 2015, which she also did not appear for. At the time of trial in 2018, Theresa
had not engaged in any substance abuse treatment.
3
"A 'Dodd removal' refers to the emergency removal of a child from the home
without a court order, pursuant to the Dodd Act, which, as amended, is found at
N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President
Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412
N.J. Super. 593, 609 n.2 (App. Div. 2010).
A-0321-18T2
5
After engaging in a supervised visitation session with Theresa on October
9, 2015,4 the Division was able to place the children with their paternal uncle
Terrence and his wife, Ellen. They remained there until June 2017.
In December 2015, the Division's permanency plan was for reunification
with Benjamin, who had been completing a substance abuse program. In July
2016, however, Benjamin relapsed, was evicted from his home, and began living
with his mother in an over fifty-five community where the children would not
be able to reside.
In December 2016, while the children remained in Terrence's home, he
indicated that he would consider kinship legal guardianship (KLG) but not
adoption. As a result, at a March 23, 2017 permanency hearing, the Division's
plan changed from reunification to KLG with Terrence, which the judge
approved. However, on April 3, 2017, Terrence and Ellen advised the Division
that they would no longer be able to care for the children. On June 23, 2017,
the children left Terrence and Ellen's home and were placed with a non-relative
resource parent.
4
Despite the Division's efforts to continue Theresa's supervised visits with the
children, the October 9, 2015 visit proved to be the only visit that Theresa
attended prior to the trial. She also failed to attend scheduled family team
meetings or provide the Division with her contact information.
A-0321-18T2
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After the children were removed from Terrence's home, and prior to filing
the guardianship complaint on January 12, 2018, the Division began assessing
other family members for possible placement. In July 2017, an Interstate
Compact on the Placement of Children (ICPC) investigation began into
Samantha, whom the children expressed an interest in being placed with. By
January 2018, however, Samantha had still not provided the necessary
paperwork and was informed that failure to do so within two weeks would result
in the denial of the ICPC. As of June 4, 2018, the Division was still not able to
approve Samantha due to various missing information and background checks.
At a June 18, 2018 Case Management Conference, the Court Appointed
Special Advocate stated that she had
one concern about the maternal aunt who . . . has filled
out some of the paperwork to be considered as an
adoptive home. It's taken quite a long time for her to
fill out what she has and there are a number of items
outstanding. And to my knowledge, she hasn't made an
effort to have visits with the children over this past
year. So I just am concerned about her seriousness of
becoming an adoptive parent.
Samantha never completed the ICPC process and could not be approved
as viable alternative placement for the children.
In anticipation of the guardianship trial, the Division referred Theresa for
psychological and parenting capacity evaluations with Dr. Brian S. Eig on
A-0321-18T2
7
March 23, 2018 and July 9, 2018, both of which she failed to attend. On April
24, 2018, Dr. Eig conducted bonding evaluations of the children with their
resource mother. As to Brittany, Dr. Eig concluded that "[a]lthough [she] and
[the resource mother] appear to have a strong and positive relationship, given
the limited tactile contact/physical affection observed, their relationship does
not appear very warm" and Brittany "would be at relatively low risk of suffering
severe and enduring psychological or emotional harm if her relationship with
[the resource mother] was permanently ended." Dr. Eig's findings and
recommendations regarding Yosef were similar. Since reunification with
Benjamin was not recommended at that time, Dr. Eig supported adoption by the
resource mother.
A two-day guardianship trial was held in August 2018 before Judge
Rodney Thompson. The Division's plan was termination of parental rights
followed by adoption by either the resource mother or Samantha. At the trial, a
police officer who was involved with the 2015 discovery of the children that led
to their removal from Benjamin testified for the Division. Next, the Division's
caseworker, Kristen Stout, testified for the Division. Stout was assigned to the
case in February of 2018. Stout described Theresa's refusal to stay in contact
with the children or the Division, attend court proceedings, or engage in
A-0321-18T2
8
substance abuse treatment. Stout also explained that at the January 2018
hearing, which Theresa attended, she was ordered to come to the local offices to
arrange services, but failed to do so.
As to Samantha, Stout testified that she "took almost a year . . . to
complete the packet which includes medical appointments, background checks,
and she wasn't giving in the paperwork that needed to be handed in in a timely
manner." At the time of trial, Samantha had not been "ruled out" as a placement
option, but she had not visited with the children throughout the pendency of the
Division's involvement. She also stated that the resource mother was willing to
adopt them and the children wished to be adopted by their resource mother.
Finally, Dr. Eig testified as an expert in the field of psychology. Dr. Eig
stated that in his opinion, "it would be in the best interest[s] for the children to
remain with their current resource parent who has expressed an interest in
adopting them if legally free to do so." Dr. Eig noted that the resource mother
was taking care of the children's needs and was open to them having contact
with Benjamin and their biological family if it is safe to do so. Dr. Eig's opinion
was that delaying permanency in order to provide Benjamin an opportunity to
overcome his issues would "absolutely" increase the risk of harm to the children,
as "[t]his case has been going on now for about three years where the children
A-0321-18T2
9
have been in sort of a state of limbo." When asked about Theresa, Dr. Eig
indicated that neither child mentioned her during their bonding evaluations with
their resource mother and that the resource mother indicated that the children do
not discuss Theresa at home.
Theresa also testified. Her testimony was brief, as she stated only her
address and that she would be beginning a job the following week.
On August 31, 2018, Judge Thompson signed the guardianship judgment
that terminated Theresa's parental rights to the children. The judge set forth his
reasons in a comprehensive fifty-one page written opinion. Initially, the judge
made specific credibility findings as to the Division's witnesses. Next, after
summarizing the family's history, the judge found that the Division proved by
clear and convincing evidence all four prongs of the best interests of the child
test.
As to prong one, Judge Thompson found that the children's safety, health,
and development have been and will continue to be endangered by a relationship
with Theresa due to Theresa's continued use of illicit substances, absence from
the children's lives for two years, and failure to complete substance abuse
evaluations, visit with the children, or complete any services offered by the
Division. Prong two was satisfied because in the course of a nearly three-year
A-0321-18T2
10
litigation, Theresa failed to complete any substance abuse or psychological
evaluations, and her "approach to th[e] litigation and to her relationship with her
children, . . . clearly demonstrate[d] her lack of interest" in overcoming these
issues.
Addressing the third prong, the judge emphasized that the Division
offered Theresa numerous services to help remedy her substance abuse issues so
that the children could be placed in her care following their removal, including
"substance abuse evaluations, mental health evaluation referrals, referrals for
psychological and bonding evaluations, and supervised visitation." Even after
Theresa ceased communicating with the Division, it "initiated a search for her
so that it could attempt to re-engage her in services."
As to the second part of prong three, the judge found that the Division
considered alternatives to termination of Theresa's parental rights and placement
with identified relatives. For two years after the children's removal, the children
were placed with relatives and the permanency plan was reunification, which
changed to KLG only after Theresa's prolonged absence from the litigation and
Benjamin's continued alcohol abuse and housing instability. The Division also
considered placement with Samantha. He found that although the ICPC requests
were made in 2017, Samantha did not complete her application or provide the
A-0321-18T2
11
required information for her to be assessed. He found that in June 2018, the
Division learned that Samantha's home could not be approved because she still
had not completed the required paperwork, fingerprinting, background check, or
a physical, and had not supplied her income information. The judge concluded
that despite the Division's efforts and years that elapsed since their initial
removal, it was apparent that Samantha "delayed in submitting her paperwork
and showed little interest in caring for the children through the duration of the
litigation."
Finally, turning to prong four, the judge observed that Theresa failed to
attend either of two scheduled psychological and bonding evaluations and at the
time of trial, had not seen either of the children except once at a family member's
funeral in 2017. The judge considered this "prolonged absence" in considering
Theresa's bond with the children. Judge Thompson stated that Theresa
"essentially terminated her own parental rights as she has absented herself from
the children's lives for the clear majority of an almost three-year period . . . [and]
since she re-surfaced in January 2018, she still has not made any clear effort to
re-establish her relationships with [the children]." Terminating Theresa's
parental rights would therefore not do the children more harm than good and
A-0321-18T2
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would provide "the stability, security, safety, and true permanency they require
to develop and mature into . . . successful adults."
On September 4, 2018, Judge Thompson filed the Judgment of
Guardianship terminating Theresa's parental rights. This appeal followed.
On appeal, our review of the trial judge's decision is limited. We defer to
his expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 412 (1998),
and his decision to terminate parental rights will not be disturbed so long as
"there is substantial credible evidence in the record to support the court's
findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).
Parents have a constitutionally protected right to the care, custody, and
control of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982). "The
rights to conceive and to raise one's children have been deemed 'essential,' 'basic
civil rights . . . ,' and 'rights far more precious . . . than property rights.'" Stanley
v. Illinois, 405 U.S. 645, 651 (1972) (alterations in original) (citations omitted).
"[T]he 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 In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
The constitutional right to the parental relationship, however, is not
absolute. K.H.O., 161 N.J. at 347. At times, a parent's interest must yield to the
A-0321-18T2
13
State's obligation to protect children from harm. N.J. Div. of Youth & Family
Servs. v. G.M., 198 N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J.
1, 10 (1992). To effectuate these concerns, the Legislature created a test for
determining whether a parent's rights must be terminated in the child's best
interests. N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and
convincing evidence the following four prongs:
(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.
See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11
(1986).
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Under the third prong, after the Division accepts a child into its care or
custody, it has a statutory obligation to "initiate a search for relatives who may
be willing and able to provide the care and support required by the child."
N.J.S.A. 30:4C-12.1(a). If the Division "fails to comply with its obligation
[under N.J.S.A. 30:4C-12.1], the judicial determinations that follow are made
without information relevant to the best interests of the child." N.J. Div. of
Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 582 (App. Div. 2011).
However, "there is no presumption in favor of placement with relatives." Id. at
580. Only when the Division has been "lax or capricious in its assessment" of
a timely presented relative should the court conclude that the Division has failed
to prove by clear and convincing evidence that alternatives to termination of
parental rights were appropriately considered. N.J. Div. of Youth & Family
Servs. v. J.S., 433 N.J. Super 69, 87 (App. Div. 2013).
Under the fourth prong, a judge must also balance the injury a child might
suffer if parental rights are terminated against the harm the child may suffer if
removed from his or her foster placement. K.H.O., 161 N.J. at 355; see also
E.P., 196 N.J. at 108. The judge is permitted to rely on the bond that a child has
with a foster parent, K.H.O., 161 N.J. at 363, and take into account a child's need
for a nurturing relationship with an adult. N.J. Div. of Youth & Family Servs.
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v. C.S., 367 N.J. Super. 76, 119 (App. Div. 2004). When a bond exists between
a child and his or her foster family, and the parent cannot correct his or her
behavior, the termination of parental rights will not do more harm than good.
E.P., 196 N.J. at 108.
Judge Thompson found the Division demonstrated, by clear and
convincing evidence, that all four prongs supported termination of Theresa's
parental rights. These findings were supported by evidence the judge found
credible and are entitled to our deference. N.J. Div. of Youth & Family Servs.
v. F.M., 211 N.J. 420, 448-49 (2012); Cesare, 154 N.J. at 413. We therefore
affirm substantially for the reasons set forth by Judge Thompson in his well-
reasoned and thoughtful opinion.
Affirmed.
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