DCPP VS. T.W.K.T. AND D.B., IN THE MATTER OF THE GUARDIANSHIP OF I.M.B. AND A.B. (FG-11-0054-18, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-4820-18T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

T.W.K.T.,

Defendant-Appellant,

and

D.B.,

Defendant.
__________________________

IN THE MATTER OF THE
GUARDIANSHIP OF I.M.B.
and A.B.,

Minors.
__________________________

Submitted April 20, 2020 – Decided May 13, 2020

Before Judges Geiger and Natali.
 On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FG-11-0054-18.

Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Laura M. Kalik, Designated Counsel, on
the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae, Assistant Attorney General,
of counsel; Joann M. Corsetto, Deputy Attorney
General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; James Dey Harris,
Designated Counsel, on the brief).

PER CURIAM

Defendant T.W.K.T. (T.T.),1 the biological mother of I.M.B. (Ian) and

A.C.B. (Audrey), appeals from the June 19, 2019 judgment of guardianship

terminating her parental rights to the children. 2 T.T. contends that the Division

of Child Protection and Permanency (Division) failed to prove the third and

fourth prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. For

1
We refer to the parties by initials and the resource parents and children by
initials and pseudonyms to preserve their confidentiality and for ease of
reference. R. 1:38-3(d)(12).
2
Defendant D.B. is Ian and Audrey's biological father. He has not appealed
the termination of his parental rights or participated in this appeal.
A-4820-18T4
2
the following reasons, we disagree and affirm the termination of T.T.'s parental

right to Ian and Audrey.

I.

We will not recite in detail the history of the Division's interactions with

Ian and Audrey and their parents. Instead, we incorporate by reference the

factual findings and legal conclusions contained in Judge Wayne J. Forrest's

comprehensive June 19, 2019 written opinion. We summarize only the salient

facts pertinent to our discussion.

T.T. has five biological children, none of whom are in her care or custody.

Ian was born on December 29, 2015. He was placed in the care and custody of

the Division two days after his birth. In January 2016, T.T. participated in

several supervised visits with Ian. During one visit, T.T. suggested that Ian be

placed with J.H. (Janet), who was already caring for T.T.'s stepsister.3 For the

remainder of 2016, T.T. "had inconsistent visitation with [Ian]" and D.B. "barely

visited [Ian] at all."

T.T.'s inconsistent visitation continued in 2017; D.B. had no visits with

Ian that entire year. Audrey was born on December 25, 2017. She has spent

3
Janet is the paternal aunt of M.T., T.T.'s eighteen-year-old stepsister.

A-4820-18T4
3
almost her entire life living in the home of her resource parent, S.M. (Sophia).

During 2018, D.B. did not visit Ian or Audrey; T.T. visited sporadically. That

pattern continued in 2019 until the guardianship trial. In total, Ian has spent all

but his first few months living in the home of his resource parent Janet, who

desires to adopt him. Likewise, Sophia desires to adopt Audrey. 4

On May 23, 2018, the Division filed a guardianship complaint to terminate

the parental rights of T.T. and D.B. as to both Ian and Audrey. The trial court

conducted a three-day trial. The Division produced three witnesses: Justin

Leonard, a Division caseworker; Stephanie Holliday, a Division adoption

worker; and David R. Brandwein, Psy.D., a licensed psychologist. D.B. did not

appear for trial. T.T. did not attend trial except for appearing telephonically for

the Division's closing argument. Neither defendant produced any witnesses nor

introduced any evidence.

Judge Forrest found Leonard and Holliday to be credible witnesses "based

on their firsthand knowledge of the facts of this case, their ability to thoroughly

recount key points of their investigation and testify consistent with the evidence,

and their professional demeanor and manner in which they testified on both

direct and cross[-]examinations." The judge likewise found Dr. Brandwein, who

4
Sofia previously adopted T.T.'s other son, L.T.
A-4820-18T4
4
was stipulated as an expert in psychology, to be a credible expert witness "based

on his thorough understanding of the facts of the case, candid responses to

questions posed to him, and his education, training and extensive experience as

a licensed psychologist." Dr. Brandwein was the only expert to testify during

trial.

In his comprehensive written opinion, Judge Forrest reviewed the

evidence presented at trial and concluded that: (1) the Division had proven all

four prongs of the statutory best interests test by clear and convincing evidence,

N.J.S.A. 30:4C-15.1(a); and (2) termination of T.T. and D.B.'s parental rights

was in Ian and Audrey's best interests. This appeal followed.

T.T. raises the following points for our consideration:

I. THE TRIAL COURT ERRED IN TERMINATING
[T.T.'S] PARENTAL RIGHTS BECAUSE THE
STATE FAILED TO ESTABLISH BY CLEAR AND
CONVINCING EVIDENCE THAT TERMINATION
WAS IN THE BEST INTERESTS OF THE
CHILDREN UNDER N.J.S.A. 30:4C-15 AND
N.J.S.A. 30:4C-15.1.

A. THE COURT ERRED IN HOLDING THAT
DCPP PROVED THAT IT HAD MADE
REASONABLE EFFORTS TO PROVIDE
SERVICES TO [T.T.], PURSUANT TO PART
ONE OF PRONG THREE, BECAUSE DCPP'S
OWN EXPERT POSITED THAT [T.T.] HAD
NOT BEEN PROVIDED APPROPRIATE
MENTAL HEALTH TREATMENT.

A-4820-18T4
5
 B. THE COURT FAILED TO SUFFICIENTLY
ADDRESS ALTERNATIVES TO
TERMINATION, PURSUANT TO PART TWO
OF PRONG THREE AND PRONG FOUR,
SPECIFICALLY BY NOT EXPLORING
[KINSHIP LEGAL GUARDIANSHIP] OR
PLACEMENT WITH OTHER RELATIVES.

1. The court did not properly analyze
alternatives to termination or whether
termination would not do more harm than good
because [kinship legal guardianship] was never
adequately explored.

2. DCPP failed to reasonably explore placement
with other relatives.

II.

We begin our discussion with the well-settled legal framework regarding

the 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); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)

(citations omitted). That right is not absolute, however. N.J. Div. of Youth &

Family Servs. v. R.G., 217 N.J. 527, 553 (2014) (citing K.H.O., 161 N.J. at 346).

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) (citing N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596,

605 (2007)). To effectuate these concerns, the Legislature created a statutory

A-4820-18T4
6
test to determine when it is in the child's best interest to terminate parental rights,

which requires the Division to prove all four prongs 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 [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-15.1(a); see also N.J. Div. of Youth
& Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986)
(reciting the four standards later codified in Title 30).]

The four prongs "are neither discrete nor separate. They overlap to

provide a composite picture of what may be necessary to advance the best

interests of the children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.

A-4820-18T4
7
261, 280 (2007) (emphasis omitted) (quoting N.J. Div. of Youth & Family Servs.

v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)).

Our review of a family judge's factual findings is limited. Cesare v.

Cesare, 154 N.J. 394, 411 (1998). "[B]ecause of the family courts' special

jurisdiction and expertise in family matters, appellate courts should accord

deference to family court factfinding." N.J. Div. of Youth & Family Servs. v.

M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare, 154 N.J. at 413). "[T]he

conclusions that logically flow from those findings of fact are, likewise,

entitled to deferential consideration upon appellate review." N.J. Div. of

Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006).

"Concomitantly, reviewing courts should defer to the trial court's credibility

determinations" as well. R.G., 217 N.J. at 552.

It is "[o]nly when the trial court's conclusions are so 'clearly mistaken' or

'wide of the mark'" that we will intervene and make our own findings "to

ensure that there is not a denial of justice." N.J. Div. of Youth & Family

Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family

Servs. v. G.L., 191 N.J. 596, 605 (2007)). However, the court's interpretation

of the law or its legal conclusions are reviewed de novo. State ex rel. A.B.,

219 N.J. 542, 554-55 (2014) (citations omitted).

A-4820-18T4
8
 III.

We now turn to T.T.'s argument that the trial court erred in finding the

Division proved the third and fourth prongs under the best interests test by clear

and convincing evidence. Accordingly, we limit our discussion to those issues.

Based on our careful review of the record and applicable legal principles, we are

satisfied that the evidence in favor of the guardianship petition amply supports

the decision to terminate T.T.'s parental rights. We affirm substantially for the

reasons set forth by Judge Forrest in his well-reasoned, seventy-page June 19,

2019 opinion. We add the following comments.

A.

Prong three requires the Division 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).

"Reasonable efforts" is defined as "attempts by an agency authorized by

the [D]ivision to assist the parents in remedying the circumstances and

conditions that led to the placement of the child and in reinforcing the family

structure." N.J.S.A. 30:4C-15.1(c). Those efforts are "not measured by their

success." In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999).

A-4820-18T4
9
 T.T. primarily argues the Division failed to establish it made reasonable

efforts to provide services because she was not provided appropriate mental

health treatment, particularly trauma-focused therapy. We disagree. The record

shows the Division made reasonable efforts to reunite T.T. with her children.

The trial court recounted the numerous services the Division provided to

T.T. to address her mental health issues, including individual counseling,

parenting classes, therapeutic visitation, psychological evaluations, and

substance abuse evaluations and treatment. The Division also provided

transportation assistance to T.T. and D.B. to attend visitation sessions but

suspended the bus passes after T.T. and D.B. ignored warnings and continued to

not visit with Ian. Moreover, the Division later engaged PEI Kids to transport

Ian in the hope that the shorter distance would encourage visitation.

T.T. was largely non-compliant with those services and visitation. Her

visits were sporadic. She failed to regularly attend individual counseling and

other services. By the end of 2016, T.T. had missed ten referrals to Preferred

Children's Services for a substance abuse evaluation. When T.T. finally entered

intensive outpatient substance abuse treatment, she was discharged for non-

compliance. When speaking to a Division caseworker in March 2017, T.T.

A-4820-18T4
10
complained that the process was "taking too long," and she did not wish to

pursue further services through the Division.

T.T. and D.B. did not make themselves available to their caseworker or

participate in court-ordered services during the majority of 2017. While T.T.

completed parenting classes at Mercer Street Friends, she did not comply with

any of the services it recommended upon discharge. "On February 26, 2018,

Oaks Integrated terminated [T.T.] from its program because she had not

scheduled or attended a therapy session in over ninety days." Between August

2018 and February 2019, T.T. was discharged from a parenting skills program,

individual counseling, and therapeutic visitation by Children's Home Society

due to lack of attendance.

Dr. Brandwein diagnosed T.T. with borderline personality disorder and

noted her history of substance abuse. He opined that T.T. "began showing signs

of Borderline Personality Disorder as a teenager including her suicide attempts

and psychiatric hospitalizations," and her "adult life has been characterized by

problems [in relationships] with her family and romantic partners, extreme

levels of rage, [and] a tendency towards impulsive behavior and impulsive

displays of emotion." He noted that Division records indicate T.T.'s lack of

insight "into the impact of mental health difficulties on her ability to care for

A-4820-18T4
11
herself and her children" and her "dismal record" of attending services.

Although recognizing that psychotherapeutic and psychopharmacological

interventions "can blunt the impact of symptoms," Dr. Brandwein concluded

that T.T. was not "a candidate to participate, complete, and/or benefit from

treatment modalities, and further referrals to these modalities would not result

in different outcomes."

T.T. also argues the Division failed to correct the circumstances that led

to her children's placements. Yet she refused to end her ongoing relationship

with D.B. that subjected her to frequent acts of physical violence—even while

pregnant—and repeatedly did not seek a final restraining order under the

Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Even after T.T.

eventually reported that she severed ties with D.B., in late January 2018, she

could not promise that they would not reunite. T.T. also refused to take her

prescribed medication for bipolar disorder and disagreed with this diagnosis.

Thus, T.T.'s own conduct utterly thwarted reunification efforts.

We are satisfied that the record fully supports the trial court's finding that

the Division made "reasonable efforts" to provide appropriate services to b oth

parents. The Division engaged in such efforts for over three years—assisting

T.T. with her substance abuse, providing counseling, and arranging visitation —

A-4820-18T4
12
to reunite her with Ian and Audrey. As the court noted, T.T. and D.B.

participated in many of those services, albeit inconsistently and almost entirely

without success.

The Division must also establish "the court has considered alternatives to

termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). T.T. argues the

Division failed to sufficiently address alternatives to termination of parental

rights by: (1) failing to explore placement with other relatives; and (2) not

exploring kinship legal guardianship (KLG). We disagree.

The Division must "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), and the Division's policy is to place, whenever possible, children with

relatives." N.J. Div. of Youth and Family Servs. v. M.F., 357 N.J. Super. 515,

529 (App. Div. 2003) (citing N.J. Div. of Youth and Family Servs. v. K.F., 353

N.J. Super. 623, 636 (App. Div. 2002)). However, there is no common law or

statutory "presumption in favor of such placement." Id. at 528-29.

T.T. argues that the Division's decision to rule out S.B., D.B.'s mother, as

a caregiver was arbitrary and unreasonable. We are unpersuaded by this

argument. Indeed, T.T. herself did not want Ian and Audrey placed in S.B.'s

home. She voiced concern over the small size of S.B.'s residence and her lack

A-4820-18T4
13
of mobility. T.T. also feared S.B. would refuse to let her visit the children. The

record shows the Division interviewed and considered four relatives for possible

placement and appropriately ruled out relative placement.

T.T. also argues the Division never adequately explored KLG. KLG is a

potential alternative to termination of parental rights. N.J. Div. of Child Prot.

and Permanency v. M.M., 459 N.J. Super. 246, 259 (App. Div. 2019). Its

purpose "is to address the needs of children who cannot reside with their parents

due to their parents' incapacity or inability to raise them and when adoption is

neither feasible nor likely." N.J. Div. of Youth & Family Servs. v. S.F., 392

N.J. Super. 201, 209 (2007) (citations omitted). In that regard, the Legislature

declared, "[i]n considering kinship legal guardianship, the State is seeking to

add another alternative, permanent placement option, beyond custody, without

rising to the level of termination of parental rights, for caregivers in

relationships where adoption is neither feasible nor likely." N.J.S.A. 3B:12A -

1(c).

As we explained in M.M., "candidates for KLG must be adequately

informed of the nature of such arrangements and the financial and other services

for which they may be eligible." M.M., 459 N.J. Super. at 261. To achieve that

objective, the Legislature enacted the Kinship Legal Guardianship Notification

A-4820-18T4
14
Act (Notification Act), N.J.S.A. 30:4C-89 to -92, "to ensure that individuals who

may be eligible to become kinship legal guardians are aware of the eligibility

requirements for, and the responsibilities of, kinship legal guardianshi p and . . .

[also] the services available to kinship legal guardians in the State." Ibid.

(quoting N.J.S.A. 30:4C-90(e)). To meet this notification mandate, the

Notification Act requires the Division to inform individuals who may be eligible

for KLG of the information set forth in N.J.S.A. 30:4C-91. Ibid.

The record demonstrates that KLG was explored through discussions with

Janet and Sophia. On July 16, 2018, a caseworker visited Janet and spoke to her

about KLG versus adoption for Ian. Janet indicated that she was only interested

in adoption. On August 20, 2018, a caseworker spoke to Sofia about KLG versus

adoption for Audrey. Sofia likewise indicated that she was only interested in

adoption. On May 3, 2019, Janet and Sofia each reaffirmed they were

committed to adopting Ian and Audrey, respectively.

In M.M., we recognized that KLG was "appropriate only if 'adoption of

the child is neither feasible nor likely.'" Id. at 262 (quoting N.J.S.A. 3B:12A-

6(d)(3)(b)); accord S.F., 392 N.J. Super. at 209. Here, adoption of the children

was feasible and likely. The Division's court-approved plan is for Ian and

Audrey's respective resource parents to adopt them, which the Law Guardian

A-4820-18T4
15
supports. "[W]hen the permanency provided by adoption is available, [KLG]

cannot be used as a defense to termination of parental rights under N.J.S.A.

30:4C-15.1(a)(3)." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494,

513 (2004); see also N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super.

127, 130 (App. Div. 2011) (when a resource parent in a guardianship action

"unequivocally asserts a desire to adopt, the finding required for a KLG that

'adoption of the child is neither feasible nor likely' cannot be met"). The judge

properly determined that KLG was not a viable option.

B.

Under the fourth prong, the Division must demonstrate that the

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

30:4C-15(a)(4). This prong does not "require a showing that no harm will befall

the child as a result of the severing of biological ties." K.H.O, 161 N.J. at 355.

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 her natural parents than from the permanent disruption of her relationship

with her foster parents." Ibid. "The overriding consideration under this prong

remains the child's need for permanency and stability." N.J. Div. of Youth &

Family Servs. v. L.J.D., 428 N.J. Super. 451, 491-92 (App. Div. 2012) (citing

A-4820-18T4
16
K.H.O, 161 N.J. at 355). "Ultimately, a child has a right to live in a stable,

nurturing environment and to have the psychological security that [her] most

deeply formed attachments will not be shattered." N.J. Div. of Youth & Family

Servs. v. F.M., 211 N.J. 420, 453 (2012).

The court noted Ian "was very happy and smiled frequently" during Janet

and Ian's bonding evaluation. Additionally, Janet engaged Ian and played with

him throughout the evaluation. Ian also referred to Janet as "mommy" and Dr.

Brandwein opined that she is Ian's psychological parent. Accordingly, Dr.

Brandwein found that Ian "would suffer serious and enduring psychological

harm if his relationship with [Janet] was terminated."

Regarding Audrey, Dr. Brandwein testified that although she "is too

young to be securely bonded to any caregiver," Sofia's continued care of her

"will allow [Audrey] to continue to thrive and be raised with her half -brother,"

L.T. During the evaluation, Audrey "was at ease while in the care of [Sofia] and

[she] looked to [Sofia] to meet her physical and emotional needs." Further, Dr.

Brandwein determined that T.T. "lacks the personal and psychological stability

to raise [Audrey] and reunification of [Audrey] with [T.T.] is not in [Audrey's]

best interest."

A-4820-18T4
17
 During Ian and Audrey's bonding evaluation with T.T., Dr. Brandwein

determined that neither child looked to her "for affection or nurturance." He

also noted his concern that T.T. referred to Audrey as "crazy" on several

occasions while in Ian's presence. He opined that T.T.'s "lack of consistent

visitation with [Ian] and [Audrey] has caused her to have an insecure bond with

both children." Due to this, "neither [child] is likely to suffer any psychological

harm should their relationship with [T.T.] be severed."

The record fully supports the trial court's finding that "there is no realistic

likelihood that [T.T.] or [D.B.] will be able to safely and appropriately care for

their children now or in the foreseeable future." They "are unable to provide

[Ian] and [Audrey] with a safe and stable home and the permanency they so

desperately need and deserve." As noted by the court, neither child has ever

been cared for by T.T. or D.B. and none of their other children are in their care.

This ruling will allow Ian and Audrey to "receive the permanency and stability

they deserve upon termination of the parental rights" of T.T. and D.B., by

making Ian "legally free for adoption by [Janet]" and Audrey "legally free for

adoption by" Sofia. The record amply supports the trial court's conclusion that

termination of T.T.'s parental rights will not do Ian and Audrey more harm than

good and is in the children's best interests.

A-4820-18T4
18
Affirmed.

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