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NOT FOR PUBLICATION WITHOUT THE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-3365-18T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
M.C.,
Defendant,
and
C.H.,
Defendant-Appellant.
___________________________
IN THE MATTER OF THE
GUARDIANSHIP OF M.H.,
a Minor.
___________________________
Submitted October 15, 2019 – Decided November 22, 2019
Before Judges Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FG-02-0038-18.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Louis W. Skinner, Designated counsel, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Sara M. Gregory, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Melissa R. Vance, Assistant Deputy
Public Defender, of counsel and on the brief).
PER CURIAM
C.H. (the father) appeals from a March 22, 2019 order terminating his
parental rights to M.H. (the child) and awarding guardianship in favor of the
Division of Child Protection and Permanency (the Division). Judge Michael
Antoniewicz conducted a three-day trial, entered judgment, and rendered a
thorough forty-eight page written decision. On appeal, the father contends that
the judge erred in concluding that termination of his parental rights was in the
best interests of the child, raising the following arguments:
POINT I
THE COURT BELOW ERRED IN CONCLUDING
[THE CHILD] WAS HARMED BY [THE FATHER].
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POINT II
THE COURT BELOW ERRED IN CONCLUDING
[THE FATHER] IS UNWILLING OR UNABLE TO
ELIMINATE THE ALLEGED HARM FACING [THE
CHILD] OR TO PROVIDE A SAFE AND STABLE
HOME.
POINT III
THE COURT BELOW ERRED IN CONCLUDING
[THE DIVISION] EXERCISED REASONABLE
EFFORTS TO PROVIDE SERVICES TO HELP [THE
FATHER] TO CORRECT THE CIRCUMSTANCES
THAT LED TO PLACEMENT OUTSIDE THE
HOME.
A. [The Division] Failed To Provide Reasonable
Efforts Related To Providing Services To [The Father].
B. [The Division] Failed To Adequately Explore
Kinship Legal Guardianship As A Viable Alternative
To Termination.
POINT IV
THE COURT'S CONCLUSION THAT
TERMINATION OF PARENTAL RIGHTS WILL
NOT DO MORE HARM THAN GOOD IS
ERRONEOUS.
I.
We begin our discussion with the well-settled legal framework regarding
termination of parental rights. Parents have a constitutionally protected right to
the care, custody, and control of their children. Santosky v. Kramer, 455 U.S.
745, 753 (1982); see In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999).
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However, that right is not absolute. N.J. Div. of Youth & Family Servs. v. R.G.,
217 N.J. 527, 553 (2014) (citation omitted); N.J. Div. of Youth & Family Servs.
v. A.W., 103 N.J. 591, 599 (1986). At times, a parent's interest must yield to
the 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 address these concerns, the Legislature created a test
to determine when termination of parental rights is in a child's best interests.
The Division must 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) [t]he 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) [t]he [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
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(4) [t]ermination of parental rights will not do more
harm than good.
[N.J.S.A. 30:4C-15.1(a).]
See also A.W., 103 N.J. at 604-11. The four prongs "are not discrete and
separate." K.H.O., 161 N.J. at 348. Rather, "they relate to and overlap with one
another to provide a comprehensive standard that identifies a child's best
interests." Ibid. "The considerations involved in determinations of parental
fitness are 'extremely fact sensitive' and require particularized evidence that
address the specific circumstances in the given case." Ibid. (quoting In re
Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).
Our review of a family judge's factual findings is limited. Cesare v.
Cesare, 154 N.J. 394, 413 (1998). "When a biological parent resists termination
of his or her parental rights, the [judge's] function is to decide whether that
parent has the capacity to eliminate any harm the child may already have
suffered, and whether that parent can raise the child without inflicting any
further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81,
87 (App. Div. 2006). The factual findings that support such a judgment "should
not be disturbed unless 'they are so wholly insupportable as to result in a deni al
of justice,' and should be upheld whenever they are 'supported by adequate,
substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super.
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172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co.
of Am., 65 N.J. 474, 483-84 (1974)). "[T]he conclusions that logically flow
from those findings of fact are, likewise, entitled to deferential consideration
upon appellate review." R.L., 388 N.J. Super. at 89.
II.
We now turn to the father's argument that the judge erred in finding that
the Division proved each of the four prongs of the best interests test by clear and
convincing evidence. We disagree with the father's contentions, and as to the
four prongs, we affirm substantially for the reasons given by the judge. We add
the following.
A.
The first prong of the best interests test requires the Division to prove that
"[t]he child's safety, health or development has been or will continue to be
endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "Although
a particularly egregious single harm can trigger the standard, the focus is on the
effect of harms arising from the parent-child relationship over time on the child's
health and development." K.H.O., 161 N.J. at 348. "[T]he attention and concern
of a caring family is 'the most precious of all resources.'" In re Guardianship of
DMH, 161 N.J. 365, 379 (1999) (quoting A.W., 103 N.J. at 613). "[W]ithdrawal
A-3365-18T3
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of that solicitude, nurture, and care for an extended period of time is in itself a
harm that endangers the health and development of the child." Ibid.
We emphasize that the Division can meet its burden by showing conduct
"detrimental to the physical or mental health of the child . . . in the form of actual
or imminent harm." A.W., 103 N.J. at 616 (emphasis added). "[T]he
cornerstone of the inquiry is not whether the biological parents are fit but
whether they can cease causing their child harm." J.C., 129 N.J. at 10. "Courts
need not wait to act until a child is actually irreparably impaired by parental
inattention or neglect." DMH, 161 N.J. at 383. "[A]ny question of the parental
role is oriented only to the prediction of the future condition of the child." A.W.,
103 N.J. at 615-16. Thus, "[p]arental behavior is relevant only insofar as it
indicates a further likelihood of harm to the child in the future." Id. at 616. The
standard is not whether the parents have caused harm, but "whether it is
reasonably foreseeable that the parents can cease to inflict harm." N.J. Div. of
Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010) (quoting A.W., 103 N.J.
at 607).
The judge found that the father was unable to provide for the child's
health, safety, and development based on the father's incarceration and anti-
social personality disorder diagnosis. The judge considered the father's "long
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periods of involvement with criminal activity and incarceration," which resulted
in "extremely limited" contact with the child. After the father learned of his
child's birth, he was not incarcerated, and he was aware that the child's mother
might surrender her parental rights. However, a few months later, he was
reincarcerated for a parole violation. Thus, he would continue to be "unavailable
to provide [the child] with any nurturance, care and solicitude." Contrary to the
father's contention, the judge did not err in considering his incarceration because
the judge considered the impact that his incarceration had and would continue
to have on his ability to parent the child. See R.G., 217 N.J. at 555-56. Although
the father made efforts to visit with the child while he was incarcerated, the
judge reasonably concluded that he was unable to adequately nurture and care
for her.
The judge also relied on the expert testimony of Dr. Frank Dyer, a
psychologist that the Division retained. After conducting several tests, Dr. Dyer
diagnosed the father with anti-social personality disorder. He described the
father as "emotionally volatile with problems with impulse control and with a
lower than [average] threshold for physical aggression." Dr. Dyer opined that
the prognosis for the father to develop adequate parenting skills was poor and
that he would "continue to place the child at risk of harm if placed in his care."
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The potential for harm was even greater in light of the child's special medical
needs resulting from her severe allergies. Based on this testimony, the judge
reasonably concluded that the father lacked an adequate parenting capacity.
Thus, the judge's conclusion that the Division satisfied prong one is supported
by substantial, credible evidence in the record.
B.
The second prong of the best interests test requires the Division to prove
that "[t]he 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." N.J.S.A. 30:4C-15.1(a)(2).
The judge should inquire as to "whether the parent has cured and overcome the
initial harm that endangered the . . . child, and is able to continue a parental
relationship without recurrent harm to the child." K.H.O., 161 N.J. at 348
(citations omitted). The Division must show continued harm to the child,
resulting from the parent's inability or unwillingness to remove or overcome the
harm. N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 483
(App. Div. 2012). The first and second prongs relate to one another, and
"evidence that supports one informs and may support the other as part of the
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comprehensive basis for determining the best interests of the child." DMH, 161
N.J. at 379.
The judge should also consider whether "the parent has failed to provide
a 'safe and stable home for the child' and a 'delay [of] permanent placement' will
further harm the child." K.H.O., 161 N.J. at 352 (quoting N.J.S.A. 30:4C-
15.1(a)(2)). Proof of the harm caused by a delay in permanency "may include
evidence that separating the child from [the] resource family parent[] would
cause serious and enduring emotional or psychological harm to the child."
N.J.S.A. 30:4C-15.1(a)(2). Further, "[k]eeping the child in limbo, hoping for
some long term unification plan, would be a misapplication of the law." N.J.
Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div.
2001).
The judge found that the father did not overcome the initial harm to the
child and that the father would be unable to parent the child without causing
recurrent harm. Due to the father's incarceration, it was unclear when he would
be available to parent the child, and even with the possibility of parole, he was
at risk for reincarceration. Further, there was no evidence of his ability to parent
or to provide a home upon his release from prison. The judge also noted the
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father's "grandiose and unrealistic plans" for life with the child upon release
from prison.
The judge also relied on the father's anti-social personality diagnosis and
further testimony from Dr. Dyer as to the father's denial of his parenting deficits,
his unwillingness to "abandon his antisocial lifestyle," and his lack of motivation
"to meaningfully participate in treatment." The father's challenge to the
significance and reliability of his diagnosis only serves to demonstrate his
unwillingness to cure the harm to the child, especially since he offered no expert
testimony to the contrary at trial. Likewise, his claim that the Division failed to
provide effective services further demonstrates his inability to acknowledge his
parenting deficiencies. As discussed further under prong three, the Division
provided services, and the father participated in programs in the prison.
However, Dr. Dyer opined that the father would require additional treatment and
a longer period of time to correct his deficiencies.
While the father might turn his life around someday, the judge concluded
that his goals to cure the harm to the child could not be met "within the
permanency timeline that fit[] [the child's] needs." Dr. Dyer opined that the
child's need for permanency was great, especially during critical stages of
development. Because the child developed a profound attachment to the
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resource parent, she would suffer extreme distress if removed from the resource
parent. Waiting indefinitely for the father to acquire the necessary parenting
skills would only magnify this harm. Thus, the judge's conclusion that the
Division satisfied prong two is supported by substantial, credible evidence in
the record.
C.
The third prong of the best interests test requires "the [D]ivision [to make]
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
[to] consider[] alternatives to termination of parental rights." N.J.S.A. 30:4C-
15.1(a)(3).
The Division must show that it made reasonable efforts to reunify the
family by helping the parent correct the conditions that led to the child's
removal. K.H.O., 161 N.J. at 354. These efforts may include the following:
(1) [C]onsultation and cooperation with the parent in
developing a plan for appropriate services;
(2) providing services that have been agreed upon, to
the family, in order to further the goal of family
reunification;
(3) informing the parent at appropriate intervals of the
child's progress, development and health; and
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(4) facilitating appropriate visitation.
[N.J.S.A. 30:4C-15.1(c).]
The reasonableness of the Division's efforts "must be [determined] on an
individualized basis." DMH, 161 N.J. at 390. "Services that may address one
family's needs will not be helpful to another." Ibid. Further, the Division's
efforts are not evaluated based on their success. Id. at 393. "We recognize the
difficulty and likely futility of providing services to a [parent] in custody . . . ."
N.J. Div. of Youth and Family Servs. v. S.A., 382 N.J. Super. 525, 535-36 (App.
Div. 2006).
As to the court's duty under prong three, "[i]n reviewing a child's
placement, [the judge] must determine whether 'such placement ensures the
safety and health and serves the best interest of the child.'" N.J. Div. of Youth
& Family Servs. v. M.F., 357 N.J. Super. 515, 528 (App. Div. 2003) (quoting
N.J.S.A. 30:4C-51). The child's best interests "is always the polestar in such
matters." N.J. Div. of Child Prot. & Permanency v. C.S., 432 N.J. Super. 224,
229 (App. Div. 2013). Although the Division must evaluate relatives as
potential caretakers, there is no presumption favoring the child's placement with
such relatives. N.J.S.A. 30:4C-12.1; N.J. Div. of Youth & Family Servs. v. J.S.,
433 N.J. Super. 69, 82 (App. Div. 2013).
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The judge concluded that the Division made reasonable efforts to reunify
the father and the child and to provide services to the father by including him in
case planning for the child, transporting him to all court hearings regarding the
child, regularly updating him on the child's health, and providing visitation at
the prison twice a month. The Division could not provide other services to an
incarcerated parent, but it encouraged the father to take advantage of programs
the prison offered, which included classes teaching culinary skills, parenting
skills, and anger management skills. Dr. Dyer opined that the father was capable
of benefitting from the services provided, but the father had "been deceptive and
evasive which . . . contributed to his lack of progress from [the] services." The
judge noted the father's lack of expert evidence identifying services that the
Division should have provided to help him acquire the necessary parenting
skills. The Division did everything it could for the father, short of waiting for
him to be released from prison and then providing additional services. Relying
on Dr. Dyer's testimony, the judge concluded that waiting to provide additional
services would be harmful to the child and "likely a fruitless endeavor" due to
the father's poor prognosis for change.
The judge also concluded that there were no alternatives to terminating
the father's parental rights because the Division evaluated all possible relatives
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for placement of the child and ruled out each one upon considering the best
interests of the child. The Division explored the child's maternal grandparents,
paternal grandmother, paternal aunt, paternal cousin, and father's fiancé. Each
individual was ruled out after the Division concluded that placement with any
one of them was not in the child's best interests. The father's claims to the
contrary are unsupported, and we have no reason to question the judge's finding
based on the record before us. The Division was unable to locate any other
relatives, and the father did not identify any other relatives for the Division to
consider. Thus, we reject the father's argument that the judge erred in declining
to place the child with a relative.
The judge found that the only person suitable to care for the child was the
resource parent, who expressed a desire to adopt the child and to whom the child
had bonded. Consequently, the judge concluded that adoption by the resource
parent was "feasible, likely and necessary to promote the wellbeing and safety
of [the child] in this case." Thus, the judge's conclusion that the Division
satisfied prong three is supported by substantial, credible evidence in the record.
D.
The fourth prong of the best interests test requires a determination that the
termination of parental rights "will not do more harm than good." N.J.S.A.
A-3365-18T3
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30:4C-15.1(a)(4). The judge must ask whether "after considering and balancing
the two relationships, the child will suffer a greater harm from the termination
of ties with [the] natural parents than from the permanent disruption of [the]
relationship with [the] foster parents." K.H.O., 161 N.J. at 355. This prong
"cannot require a showing that no harm will befall the child as a result of the
severing of biological ties." Ibid. Evidence that the child's bond with the
resource parent is comparatively stronger than his or her bond with the
biological parent and that, consequently, the child would suffer a great loss if
separated from the resource parent, is sufficient to satisfy this prong. See N.J.
Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 108 (2008) (citations
omitted).
"The overriding consideration . . . remains the child's need for permanency
and stability." L.J.D., 428 N.J. Super. at 491-92. "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." N.J. Div. of
Youth and Family Servs. v. F.M., 211 N.J. 420, 453 (2012). "A child cannot be
held prisoner of the rights of others, even those of his or her parents. Children
have their own rights, including the right to a permanent, safe and stable
A-3365-18T3
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placement." N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76,
111 (App. Div. 2004).
The judge concluded that terminating the father's parental rights would
not do more harm than good to the child. The judge relied on Dr. Dyer's
testimony as to his bonding assessments of the child with the father and with the
resource parent. Dr. Dyer testified that the child viewed the resource parent as
her psychological parent. If removed from the resource parent, the child would
suffer a traumatic loss and experience extreme distress, and the father lacked the
ability to mitigate the harmful effects of such a loss. The child's attachment to
the father was considerably weaker. Although the child had a positive emotional
tie to the father, she did not have a profound attachment. Dr. Dyer compared
their relationship to that of a teacher and a student. Consequently, the child
would not experience lasting psychological harm that could not be ameliorated
by the resource parent if the father's parental rights were terminated. Dr. Dyer
opined that adoption by the resource parent was in the best interests of the child.
Based on this testimony, the judge found that terminating the father's parental
rights would not do more harm than good because it would provide the child
with the permanency she needed and would prevent her from suffering
significant psychological harm.
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We reject the father's contention that In re Guardianship of K.L.F., 129
N.J. 32 (1992) requires us to ignore Dr. Dyer's testimony as to the child's
attachment to the resource parent. In K.L.F., the judge found an expert's
testimony to be credible, where the expert opined that removing a child from her
resource parent would cause minimal harm. Id. at 41-42. However, K.L.F. is
distinguishable because the expert's opinion was supported by the Division's
records. Id. at 42. Here, the father has provided no evidence showing that
removing the child from the resource parent would cause her only minimal harm.
Thus, we find no reason to question the judge's reliance on Dr. Dyer's testimony.
The judge's conclusion that the Division satisfied prong four is supported by
substantial, credible evidence in the record.
To the extent that we have not addressed the parties' remaining arguments,
we conclude that they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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