DCPP VS. Y.R.J., T.D.S. AND J.T., IN THE MATTER OF THE GUARDIANSHIP OF A.A.-M.S. AND J.F.T. (FG-11-0053-18, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED)

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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-5003-18T3
A-5004-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

Y.R.J. and J.T.,

Defendants-Appellants,

and

T.D.S.,

Defendant.
____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF A.A.-M.S.
and J.F.T., Minors.
____________________________

Submitted September 15, 2020 – Decided September 23, 2020

Before Judges Gilson and Gummer.
 On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FG-11-0053-18.

Joseph E. Krakora, Public Defender, attorney for
appellant Y.R.J. (Robyn A. Veasy, Deputy Public
Defender, of counsel; Albert M. Afonso, Designated
Counsel, on the briefs).

Joseph E. Krakora, Public Defender, attorney for
appellant J.T. (Robyn A. Veasy, Deputy Public
Defender, of counsel; Daniel DiLella, Designated
Counsel, on the briefs).

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

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

PER CURIAM

In these consolidated appeals, Y.R.J. (Yolanda) contests the Family Part's

final judgment of guardianship terminating her parental rights to A.A.-M.S.

(Asia), who is ten years old, and J.F.T. (Judy), who is six years old; J.T. (Jed)

contests the aspect of the judgment terminating his parental rights to Judy. 1

1
Asia's father does not appeal. We use fictitious names for ease of reading
and to protect the identities of the parties. R. 1:38-3(d)(12).
A-5003-18T3
2
Yolanda argues that the Division of Child Protection and Permanency, due to its

experts' inconsistent diagnoses of her, failed to formulate an appropriate plan of

services and, consequently, failed to make reasonable efforts towards

reunification. She contends that because of that failure, the Division could not

meet its burden of proof as to the other prongs of the "best interests of the child"

test under N.J.S.A. 30:4C-15.1(a). Jed argues that the Division did not prove

any of the prongs of that statutory test by clear and convincing evidence. We

disagree and affirm.

The scope of an appellate court's review of a trial court's decision to

terminate parental rights is limited. N. J. Div. of Youth & Family Servs. v. G.L.,

191 N.J. 596, 605 (2007). "Appellate courts must defer to a trial judge's findings

of fact if supported by adequate, substantial, and credible evidence in the

record." Ibid. Reviewing courts "accord deference to fact findings 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 related

to the family." N. J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448

(2012).

"Parents have a constitutional right to raise their children." Id. at 447.

That right is not absolute. N. J. Div. of Youth & Family Servs. v. R.G., 217 N.J.

A-5003-18T3
3
527, 553 (2014). At times, a parent's interest must yield to the State's obligation

to protect children "whose vulnerable lives or psychological well-being may

have been harmed or may be seriously endangered by a neglectful or abusive

parent." F.M., 211 N.J. at 447.

To "achieve the appropriate balance between parental rights and the

State's parens patriae responsibility," N. J. Div. of Youth & Family Servs. v.

M.M., 189 N.J. 261, 280 (2007), the Legislature enacted a test for determining

when a parent's rights must be terminated in a 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 . . .;

(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.

A-5003-18T3
4
Those fact-sensitive factors "'overlap with one another to provide a

comprehensive standard that identifies a child's best interests.'" G.L., 191 N.J.

at 606-07 (quoting In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999)).

In his detailed seventy-two-page written opinion, Judge Wayne J. Forrest

found that the Division had demonstrated by clear and convincing evidence that

all four prongs supported termination of defendants' parental rights. Judge

Forrest based his opinion on evidence adduced during a thirteen-day trial, which

included the testimony of Division witnesses, the children's resource mother, a

detective of the local police department, the Division's psychological expert

witness, other therapists or counselors, a defense witness, and Yolanda's

psychology expert witness. The judge did not find her expert witness to be

credible. Yolanda and Jed attended the trial sporadically and did not testify.

The law guardians for Asia and Judy supported the Division's position.

We summarize the salient facts. The Division first removed Asia from

Yolanda's custody on October 5, 2012, when it found Asia and her older sister

unsupervised at Yolanda's home, which was in a deplorable condition. Yolanda

regained custody in December 2013. About three months later, Asia and her

older sister were removed from Yolanda's custody because the older sister had

reported that Yolanda often left them home alone and hit them. In 2015,

A-5003-18T3
5
Yolanda regained custody of Asia, but the court ordered her not to allow her

older son, who had been accused of having sexual contact with another daughter,

to be unsupervised around Asia or Judy. Four months later, the Division

removed Asia and Judy from Yolanda's custody because Yolanda had violated

the order by allowing her older son to have unsupervised contact with Asia and

Judy.

As to the first prong, the judge determined that Yolanda had failed to

comply with court-ordered services, to remediate her mental health issues, to

visit consistently her children, and to accept responsibility for her involvement

with the Division. He also found that Yolanda's visits with Asia had a negative

effect on Asia's behavior. The judge determined that Jed had not complied with

court-ordered services and had inconsistent visitation with Judy and that he was

at risk of re-engaging in criminal behavior given his lengthy criminal history.

He concluded that Asia's and Judy's safety, health, and development have been

and will continue to be endangered by a relationship with their biological parents

and that that harm has had and likely will continue to have a deleterious effect

on Asia and Judy.

As to the second prong, the judge determined that Yolanda has had

children, including Asia, removed from her care on multiple occasions for,

A-5003-18T3
6
among other reasons, her inadequate supervision of her children, but refuses to

take responsibility for her actions. He found that she had not complied with

court-ordered services, had not visited consistently with Asia or Judy, and had

refused to provide the Division with proof of purported employment to establish

her claim of maintaining a stable residence. The judge determined that Jed 's

incarcerations minimized his presence in Judy's life. He found that even since

Jed's release from prison, he had not had consistent visitation with her, had not

complied with services, had not resolved his alcohol-abuse issues, and had

continued to engage in criminal behavior through domestic-violence incidents

with Yolanda. The judge concluded that Yolanda and Jed are unwilling or

unable to eliminate the harm facing their children or to provide a stable and safe

home for them. He also concluded that delay of permanent placement would

add to that harm.

As to the third prong, Judge Forrest found that the Division has made

numerous and continuous efforts to provide services to Yolanda and Jed to

enable them to reunify with their children, and he detailed those efforts in a

seven-page section of his opinion. The judge concluded that the Division had

established that it made reasonable efforts to provide services, but that Yolanda

and Jed had failed to avail themselves sufficiently of the Division's offered

A-5003-18T3
7
services. He also concluded that Yolanda and Jed had not demonstrated the

necessary stability or commitment to care for their children and that alternatives

to termination of parental rights were not viable.

As to the fourth prong, the judge found that there was no realistic

likelihood that Yolanda or Jed will be able to care safely and appropriately for

their children. He cited Yolanda's unaddressed mental health issues, her

inability to take responsibility for her past inappropriate behavior and neglect in

caring for Asia and Judy, and her inconsistent visits, causing instability in her

daughters' lives. He noted Jed's unaddressed alcohol issues, inconsistent visits,

and uncompleted services. The judge determined that Asia and Judy were doing

well with their resource mother, who intends to adopt them, and that Asia's

behavioral issues likely stem from her visits with Yolanda.

In her appeal, Yolanda focuses on the third prong of the statutory test.

She complains that during the Division's seven-year involvement with her

children, the Division's experts evaluated her seven times, resulting in nineteen

different diagnoses. She compares those results to the finding of her expert,

whom the court found not to be credible, of no mental health diagnosis. She

does not identify any services that the Division should have provided but did not

provide. Based on her expert's finding of no mental health diagnosis, the

A-5003-18T3
8
Division would not have had to provide any mental health services. She does

not describe as inappropriate any particular service the Division offered. She

does not contest the judge's finding that she failed to take sufficient advantage

of those services and does not offer an explanation as to why.

The efforts provided by the Division under the third prong of the statutory

test do not have to be successful. N. J. Div. of Youth & Family Servs. v. A.G.,

344 N.J. Super. 418, 442 (App. Div. 2001). "The diligence of [the Division's]

efforts on behalf of a parent is not measured by their success." In re

Guardianship of DMH, 161 N.J. 365, 393 (1999). The efforts also do not have

to be perfect; they have to be reasonable. The Legislature defined "reasonable

efforts" as meaning "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). The court must assess those efforts "against the standard of

adequacy in light of all the circumstances of a given case. Consistent efforts to

maintain and support the parent-child bond are central to the court's

determination." DMH, 161 N.J. at 393. A court's inquiry into the

reasonableness of the Division's efforts also includes a consideration of

A-5003-18T3
9
"whether a parent actively participated in the reunification effort." N.J. Div. of

Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 488 (App. Div. 2012).

In finding Yolanda's expert not to be credible, Yolanda's participation in

the reunification to be inconsistent, and the Division's efforts, which included

case plans, parenting classes, individual therapy, therapeutic visitation services,

substance-abuse evaluations, domestic-violence counseling services,

transportation for visitation, other counseling services, and assistance with

welfare, medical insurance, daycare, and after-school care services, to be

reasonable, Judge Forrest relied on substantial credible evidence in the record.

Yolanda does not contest the court's specific findings of fact and

interpretation of the law regarding the other prongs of the statutory test. 2

Yolanda premises her arguments as to the second and fourth prongs on her third-

prong argument. Having found that argument unconvincing, we similarly reject

her arguments on the other prongs.

Jed centers his appeal on the court's purported improper focus on his

incarcerations. In making that argument, Jed overlooks the many other factors

2
Yolanda does not dispute expressly the trial court's first-prong determination
with respect to either child. Accordingly, any challenge by Yolanda to the trial
court's first-prong finding is considered waived on appeal. See, e.g., N.J. Dep't
of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 506 n.2 (App. Div.
2015) (holding that an issue not briefed is deemed waived on appeal).
A-5003-18T3
10
considered by the court, including Jed's failure to consistently participate in

court-ordered services, his inconsistent post-incarceration visitation with Judy,

the harm that that inconsistency causes Judy, his domestic-violence incidents

with Yolanda, his inability or unwillingness to provide Judy with a safe and

stable home, and his failure to maintain sobriety.3

Jed likens himself to the defendant father in R.G., 217 N.J. 527. That

comparison does not support Jed's argument. Unlike Jed, the defendant father

in R.G. had been a part of his daughter's life since her birth, changing her diapers

and taking her to doctors' appointments before his incarceration. Id. at 536.

While in prison, he called his daughter and wrote to her. Id. at 537. During his

time in a halfway program, he spoke to his daughter nearly every day. Id. at

540. He made efforts to visit her and wrote her monthly and on birthdays and

holidays. Id. at 540-41. Jed offers no evidence that he 4 attempted to facilitate

calls or visits with Judy or that he wrote to her during or after his incarceration.

He demonstrated his disinterest in reuniting with Judy when, contrary to specific

3
Jed's effort to minimize the domestic-violence incidents with Yolanda and his
alcohol abuse is not supported by the record.
4
That Yolanda brought Judy with her when she visited Jed in prison or that she
called Jed when she was with Judy does not constitute effort by Jed to create
and maintain a parental relationship with Judy.
A-5003-18T3
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instructions he had received from a Division caseworker, he failed to contact the

Division after his release to schedule supervised visits with Judy and allowed

months to elapse before a chance encounter with a Division caseworker in

Yolanda's apartment. See DMH, 161 N.J. at 373. Unlike the defendant father

in R.G., Jed was given an opportunity to be "reintegrated into society and . . .

[to] strengthen his relationship with [his child]." 217 N.J. at 561. By failing to

comply with court-ordered services, failing to visit consistently his daughter,

failing to maintain his sobriety, and becoming embroiled in domestic violence

incidents, he failed to embrace that opportunity.

All of the trial judge's findings were supported by evidence the judge

found to be clear, convincing, and credible. His findings are entitled to our

deference. F.M., 211 N.J. at 448-49. We, therefore, affirm substantially for the

reasons set forth by Judge Forrest in his well-reasoned and thorough written

opinion.

Affirmed.

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