DCPP VS. C.C., IN THE MATTER OF THE GUARDIANSHIP OF R.C. AND J.N. (FG-20-0025-17, UNION 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NOT FOR PUBLICATION WITHOUT THE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-4608-17T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

C.C.,

Defendant-Appellant.
______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF R.C. and J.N.,

Minors.
_______________________________

Submitted June 6, 2019 – Decided June 20, 2019

Before Judges Simonelli and Whipple.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FG-20-0025-17.
 Joseph E. Krakora, Public Defender, attorney for
appellant (Beryl Vurnen Foster-Andres, Designated
Counsel, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason Wade Rockwell, Assistant Attorney
General, of counsel; Frank Robinson Moceri, Deputy
Attorney General, on the brief).

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

PER CURIAM

Defendant, C.C. (Carla), appeals from a May 15, 2018 judgment of

guardianship terminating her parental rights to her minor children, R.C. (Ryan),

J.N. (John).1 We affirm.

We discern the following facts from the record. Carla is the mother of

three boys, Ryan, John and Jim. Jim is in the custody of his biological father

and is not a subject of this litigation. The Division of Child Protection and

Permanency (Division) first became involved with this family in June 2015 after

receiving referrals that the children were inadequately supervised because Carla

left them with elderly relatives and her young sibling. It was also alleged that

1
We use pseudonyms to protect the identity of the family pursuant to Rule 1:38-
3(d)(12) and for ease of reference.

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2
Carla was abusing drugs. Carla continued to leave the children with her elderly

relatives or with her younger sibling, and this continued pattern of behavior

contributed to an established finding of neglect. The Division did not

immediately take custody of the children and allowed Carla to place Ryan with

a family friend and John with his paternal grandmother, R.W. Carla was ordered

to undergo a substance abuse evaluation and other services while the children

remained under the care and supervision of the Division and resided with their

resource parents.

Carla was noncompliant with numerous ordered services. She visited the

children but did not assist the resource parents. From the inception of the

litigation, the Division continued to provide and recommend services to Carla

to facilitate reunification. Although Carla underwent a psychiatric evaluation,

she did not engage in any of the services recommended by the psychiatrist.

Ultimately, the Division took custody of the children, but they remained wi th

their resource parents. On January 25, 2017, due to Carla's resistance to

services, the Division changed its permanency goal to termination of parental

rights followed by adoption. On March 8, 2017, the Division filed its complaint

for guardianship. John's biological father was added as a defendant, but he

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3
executed an identified surrender and John remained with his grandmother. The

Division was unable to determine the identity of Ryan's biological father.

Previously, on December 3, 2016, Carla gave birth to another child, Jake.

Jake remained in Carla's custody despite her resistance to offered services. She

was living with relatives and a boyfriend, A.M., and began to undergo

counseling. On June 11, 2017, Carla left Jake alone with A.M. An autopsy

determined Jake died that day from closed head trauma with extensive anoxic

encephalopathy and the death was ruled a homicide. The Division substantiated

A.M. for abuse. Notwithstanding Jake's death, Carla continued to live with A.M.

The Division suspended Carla's visits with Ryan and John. The Division

arranged for a psychological evaluation as well as parental and caregiver

bonding evaluations with Leticia Calendar, Ph.D.

The guardianship trial commenced on May 14, 2018. During the trial, the

Division presented the testimony of two witnesses, the Division caseworker,

Janice Braxton, and Calendar. Carla did not attend the trial.

Braxton's testimony chronicled the Division's involvement with the

family. She testified about the numerous services offered to Carla, Carla's

resistance to engagement and her sporadic visits with her children. Braxton also

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4
testified about Carla's unwillingness to separate herself from A.M. for the

protection of her children.

Calendar, the Division's expert in psychology and bonding, conducted

evaluations based on observations between Carla and her children and the

children and their resource parents. Calendar noted John had an insecure

attachment to Carla but a healthy bond to his resource parent. Ryan had no bond

with Carla and a healthy bond with his resource parent. Calendar opined it

would be harmful to remove the children from their current placements.

The trial court entered a judgment of guardianship on May 15, 2018, after

rendering detailed findings in an oral opinion. This appeal followed.

On appeal, Carla argues the Division did not prove the four prongs of

N.J.S.A. 30:4C-15.1(a) because she never harmed her children, she completed a

number of services and she was denied a fair trial. In particular, she argues there

was no evidence of neglect or abuse when her children were removed from her

care, her boyfriend was not indicted for her son's death and there was no

evidence she ever committed harm to her children when she visited with the m.

She asserts she completed a substance abuse program and other services and that

the substance abuse evaluations and psychological evaluations are not

A-4608-17T1
5
ameliorative. Finally, she argues the judge erred by failing to admit the bonding

evaluations into evidence. We reject all of these arguments.

A.

"A parent's right to enjoy a relationship with his or her child is

[fundamental and] constitutionally protected." In re Guardianship of K.H.O.,

161 N.J. 337, 346 (1999). However, "[p]arental rights . . . are not absolute. The

constitutional protection surrounding family rights is tempered by the State's

parens patriae responsibility to protect the welfare of children." Id. at 347.

Under N.J.S.A. 30:4C-15.1(a), the Division can initiate a petition to

terminate parental rights on the basis that such termination is 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 [D]ivision has made reasonable efforts to
provide services to help the parent correct the
circumstances which led to the child's placement

A-4608-17T1
6
 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.

"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., 161 N.J. at 348.

"Appellate review of a trial court's decision to terminate parental rights is

limited, and the trial court's factual findings 'should not be disturbed unless they

are so wholly unsupportable as to result in a denial of justice.'" In re

Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship

of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We are obligated to accord

deference to the trial court's credibility determinations based upon the judge's

opportunity to observe and hear the witnesses. Cesare v. Cesare, 154 N.J. 394,

412 (1998).

To satisfy the first prong of the best interests standard, the parental

relationship "must be one that threatens the child's health and will likely have

continuing deleterious effects on the child." K.H.O., 161 N.J. at 352. Generally,

"proofs in termination cases 'focus on past abuse and neglect and on the

likelihood of it continuing.'" N.J. Div. of Youth & Family Servs. v. F.H., 389

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N.J. Super. 576, 609 (App. Div. 2007) (quoting In re Guardianship of J.C., 129

N.J. 1, 10 (1992)). Moreover, in guardianship and adoption cases, the child's

need for permanency and stability is central. K.H.O., 161 N.J. at 357.

Additionally, injury to the child's growth and development should not be the

result of "economic deprivation or lack of resources but to a fundamental lack

of the most precious of all resources, the attention and concern of a caring

family." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 613 (1986).

After fully reviewing the evidence presented and making credibility

determinations, the trial judge determined the safety, health or development of

John and Ryan were in danger. The judge found the danger was due to Carla's

irresponsible actions, including her unaddressed substance abuse, ineffective

participation in services and her decision to reside with her boyfriend after her

infant child died from blunt force trauma to the head while in his care. A parent's

continued failure to provide a safe and stable home to her children constitutes

harm that can satisfy the first and second prongs of the best interest test. N.J.

Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 451 (2012). We are

satisfied that the record fully supports the trial judge's findings.

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 B.

"The second prong of the [test] relates to parental unfitness." K.H.O., 161

N.J. at 352. There are two ways to establish this prong: (1) the State must show

that "the child's health and development have been and continue to be

endangered" and "the harm is likely to continue because the parent is unable or

unwilling to overcome or remove the harm"; or (2) "the parent is unable to

provide a safe and stable home for the child and that the delay in securing

permanency continues or adds to the child's harm." Id. at 348-49.

The trial judge considered the expert testimony of Calendar and agreed

that Carla's longstanding history and behavior demonstrate she is unwilling or

unable to care for her children, and the Division had demonstrated Carla would

not be able to parent in the near future. We are satisfied that the record contains

clear and convincing evidence establishing prong two.

C.

The third prong requires the Division to make reasonable efforts to

provide services in order to help the parent correct the circumstances that led to

the child's placement outside the home. N.J.S.A. 30:4C-15.1(a)(3). Reasonable

efforts will vary with the circumstances. F.H., 389 N.J. Super. at 620. This

factor requires the Division to make "diligent efforts to reunite the family."

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K.H.O., 161 N.J. at 354. A "parent's failure to become a caretaker for her

children is not determinative" of whether the third prong has been met because

the reasonableness of the Division's efforts "is not measured by their success."

In re Guardianship of DMH, 161 N.J. 365, 393 (1999).

The trial court found reasonable efforts, outlining a history of therapeutic

services, visits, evaluations, paternity tests, offers of transportation assistance

and other services. The trial judge's findings as to prong three are established

by clear and convincing evidence in the record.

D.

The fourth prong, that termination of parental rights will not do more harm

than good, "serves as a fail-safe against termination even where the remaining

standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.

596, 609 (2007). "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 that parent." N.J. Div. of

Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). If a child can be

returned to the parent without endangering the child, the parent's right to

reunification takes precedence over the permanency plan. A.W., 103 N.J. at

608.

A-4608-17T1
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 That the child has bonded with the foster parent does not alone justify the

termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375

N.J. Super. 235, 263 (App. Div. 2005). When parents expose "a child to

continuing harm . . . and [are] unable to remediate the danger to the child, [who]

has bonded with the foster parents who have provided a nurturing and safe home,

. . . termination of parental rights likely will not do more harm than good." E.P.,

196 N.J. at 108.

In establishing this prong, the State should adduce testimony from a "well

qualified expert who has had full opportunity to make a comprehensive,

objective, and informed evaluation of the child's relationship with the

[biological and] foster parent[s]." J.C., 129 N.J. at 19. "The question . . . 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., 161 N.J. at 355.

In addition, the Division must prove the parent's actions or inaction

contributed to the forming of the bond between the child and the foster parents,

and "the harm caused to the child from severing that bond rests at the feet of the

parent." N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 80

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(App. Div. 2010). "A child's need for permanency [and stability] is an important

consideration[.]" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261,

281 (2007).

In the present case, we are satisfied the trial court properly determined

that there was sufficient evidence to satisfy prong four. The trial judge

considered evidence as to each of the two children individually, finding by clear

and convincing evidence that each was flourishing in their foster homes, and

Carla had not made sufficient progress to safely parent either child or ameliorate

harm to them if placed in her care. We discern no reason to disturb that

determination.

Affirmed.

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