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NOT FOR PUBLICATION WITHOUT THE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-4671-14T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
M.N.B.,
Defendant-Appellant.
____________________________________
IN THE MATTER OF THE GUARDIANSHIP OF
J.J.B. and J.M.L.,
Minors.
_____________________________________
Argued September 19, 2017 – Decided October 25, 2017
Before Judges Fisher, Fasciale and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FG-07-0203-14.
Adrienne Kalosieh, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Ms. Kalosieh, on
the briefs).
Vonnetta C. Dixon, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Andrea M. Silkowitz, Assistant Attorney
General, of counsel; Ms. Dixon, on the brief).
Olivia Belfatto Crisp, Assistant Deputy Public
Defender, argued the cause for minors (Joseph
E. Krakora, Public Defender, Law Guardian,
attorney; Ms. Crisp, on the brief).
PER CURIAM
Mae is the mother of two boys, Jack and Jason, born on January
10, 2001 and August 29, 2005, respectively.1 The New Jersey
Division of Child Protection and Permanency filed a guardianship
complaint against Mae seeking to terminate her parental rights to
Jack and Jason. On June 2, 2015, the trial judge heard testimony
from two witnesses called by the Division, interviewed Jason in
camera, and following an oral decision, entered a permanency order
terminating Mae's parental rights to both boys.2
Mae appealed and while the appeal was pending, we granted the
law guardian's application to resume visitation between Mae and
her sons. We denied the law guardian's subsequent motion to remand
the case to the trial court for a hearing on the best interests
1
The pseudonyms used for the boys in defendant's brief, and "Mae,"
a name we gave to the defendant, are utilized here to protect
their privacy.
2
The order also terminated the parental rights of the boys'
natural fathers. Jack's father executed a voluntary general
surrender of his rights on June 2, 2015; after Jason's father
could not be located, the court entered a default against him on
May 14, 2014, and relieved the Division of having to serve him.
2 A-4671-14T1
of the children, but issued a temporary remand to allow the law
guardian to file a motion for relief from the trial court's
judgment. R. 4:50-1. The motion was filed and, after hearing
testimony from the Division caseworker and arguments of counsel,
the trial judge denied the motion on April 26, 2016, ending the
temporary remand.
Mae, and the boys through the law guardian, contend that the
trial court erred in terminating parental rights, and in denying
the motion for relief from judgment. We disagree and affirm both
the order terminating parental rights and the order denying the
law guardian's motion for relief.
"Our review of a trial judge's decision to terminate parental
rights is limited." N.J. Div. of Youth & Family Servs. v. G.L.,
191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172
N.J. 440, 472 (2002)). "The general rule is that findings by the
trial court are binding on appeal when supported by adequate,
substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394,
411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co.,
65 N.J. 474, 484 (1974)). Moreover, we accord even greater
deference to the judge's fact-finding "[b]ecause of the family
courts' special jurisdiction and expertise in family matters."
Id. at 413. We will not disturb the trial judge's factual findings
unless they are "so wide of the mark that a mistake must have been
3 A-4671-14T1
made[,]" even if we would not have made the same decision. N.J.
Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007).
"The balance between parental rights and the State's interest
in the welfare of children is achieved through the best interests
of the child standard." In re Guardianship of K.H.O., 161 N.J.
337, 347 (1999). Before parental rights may be terminated, the
Division must prove the following 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 division 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).]
4 A-4671-14T1
The factors "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., supra, 161 N.J. at
348.
The trial judge conducted a fact-sensitive analysis of the
first three prongs.
The judge's conclusions relevant to the first prong
dovetailed with his findings supporting the second prong, a common
occurrence resulting from the overlap of the two. N.J. Div. of
Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div.
2006), certif. denied, 190 N.J. 257 (2007). The record supports
his ruling that the Division established these prongs.
Dr. Charles Hasson was qualified at trial as an expert in
psychology. He performed evaluations, including psychological
testing and bonding evaluations on Mae and the children. Mae
described her upbringing to Dr. Hasson, and revealed to him her
mental health and substance abuse history. She also told him of
her plans to enroll in Essex County College, obtain her GED, get
a job and, then, an apartment. She admitted to the doctor that
she had difficulty getting motivated. Dr. Hasson opined at trial
5 A-4671-14T1
that Mae
has mood disorder, a depressive disorder.
Whether it's chronic depression, major
depression, it doesn't matter. There's a
depressive disorder there right, but more
importantly pushing her behavior is the fact
that she doesn't know where she's heading in
life. There's a character disorder, so it's
hard for her to get organized, to get in gear,
to get things accomplished. And to provide
. . . a safe, and nurturing environment for
her children rather than taking responsibility
for her own . . . mistakes.
He testified that marijuana use "de-motivate[s] people," and that,
considering Mae's mental health status and her admitted abuse of
marijuana, "the last thing she should rely on is marijuana."
The judge concluded that Mae was continuing the cycle of poor
parenting to which she had been subjected. Belying Mae's
contentions that the boys were well-fed, had appropriate housing
and were attending school without issue, the judge noted instances
of: physical and emotional abuse; behavior problems at school; and
grooming and cleanliness issues. Crediting Dr. Hasson's
testimony, the judge found Mae has severe psychological issues
that rendered her incapable of parenting "now or in the foreseeable
future." He observed that "she has not changed her situation, she
has not bettered it[, and] she has not dealt with the issues that
have seriously [prevented] her from being a parent for these
children." He found that, despite almost three years of out-of-
6 A-4671-14T1
home placement,3 Mae was still unable to provide a stable home and
was without a stable job, and that her stated plans to obtain same
and continue her education were "pie in the sky." If the children
were returned to her, he said "they would be taught the same
lessons that she learned from her mother and her treatment when
she grew up." He declared the "cycle" had to stop.
These conclusions were not, as contended by Mae, based on
unsubstantiated hearsay, whether contained in the trial record or
relied on by Dr. Hasson. Mae's admissions to the doctor formed
the basis for these findings, and the judge properly ruled there
was clear and convincing evidence to establish the first and second
prongs.4
The trial judge determined that the State's burden with regard
to the third prong was met because, notwithstanding the Division's
provision of services to the family for ten years, Mae made no
progress in providing stability and security for the boys.
3
The boys were placed in out-of-home care from October 2, 2012
through the trial in June 2015.
4
We deem Mae's argument that the court's analysis was flawed
because the Division's expert report was unreliable to be without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E). The judge's decision did not rest on the portions
of the report cited by Mae in her brief. Further, the doctor's
report aids Mae's argument that she was bonded with Jason, and
that termination would be difficult for him; Mae had no issue
referencing those portions of the doctor's opinion.
7 A-4671-14T1
Substantial evidence in the record supports his terse finding.
The Division offered Mae programs for drug treatment, anger
management, parenting skills, childcare and homemaking, as well
as in-home monitoring services.
Although finding her "compliance is somewhat questionable,"
the judge acknowledged that Mae attended services. Nonetheless,
[a]nd unfortunately, we are [twelve] years
into Division history and it isn't a better
situation at this point . . . . But there's
no change in [her] life. There's no
motivation, there's no apartment, there's no
job, there [is] n[o] education, there's
nothing that she has done in the years and
years and years the Division[] [has] been
involved, that has changed her situation one
iota.
Mae continued drug use even after completion of treatment.
She asserts, because of her participation in drug rehabilitation,
she was not able to attend other programs, visit with the children
and work. But she was not working during much of that period.
And when she did work – in September through November 2013 – she
told the Division that work interfered with her attendance at drug
treatment and other services, a complaint she echoes on appeal.
The Division, however, tried to find programs to accommodate her
work schedule.
There is compelling evidence Mae simply failed to avail
herself of the services offered by the Division. Mae admitted to
8 A-4671-14T1
Dr. Hasson that her lack of motivation was a major problem, a
problem he said was exacerbated by her marijuana use. The judge
found Mae had not "dealt with the issues" that impeded her
parenting abilities. Although Mae now complains the Division did
not help her find housing, she and her counsel consistently
represented to the court that she was on the verge of obtaining a
subsidized apartment. Further, defendant refused to look at one
residence suggested by a service provider and failed to follow up
with that provider's housing office. We conclude the judge's
finding that the Division made reasonable efforts to provide
services over a number of years was amply supported.
In deciding whether the Division met its burden with regard
to the fourth prong, the judge was not presented with perfect
alternatives. He noted Mae's "total rejection" of Jack made him
"an orphan in the house." And although, as Dr. Hasson opined, she
had a strong bond with Jason, the judge found the boys would have
"no future" if they were returned to Mae because she had not
resolved the problems stemming from her "severe psychological
issues" and drug use, and that "now and for the foreseeable future"
she would be
incapable of parenting for these children and
will only repeat the procedures . . . and the
abuse and neglect that she has . . . put upon
them. Their behavior is not going to improve,
9 A-4671-14T1
it's going [to] . . . get worse . . . if they
go back [to her].
The judge heeded the Court's mandate in K.H.O. and considered the
"realistic likelihood that the [natural] parent will be capable
of caring for the child in the near future," 161 N.J. at 357, and
found none.
The judge weighed the impact termination had on Jack, and
observed that Jack had shown improvement since removal. Dr. Hasson
testified Jason would be upset by the termination of Mae's rights,
and that he would be confused and act out. Nonetheless, he felt
termination would be in Jason's best interest, calling it "a
question of the lesser of evils." The judge reached the same
conclusion.
The judge fully realized that if Mae's rights were terminated,
there was no plan in place for adoption, querying:
What are the possibilities if we don't
terminate parental rights? What is the plan
for these children? To stay in foster homes?
To stay in homes that are not willing to adopt?
To stay in specialized care? What is the
possibility of ever reaching permanency,
security, safety and the type of home that
these children are entitled to?
Considering Mae had not addressed the issues that led to her
sons' removal after many years of Division intervention, and still
had not found stable housing, stable employment or sobriety, the
judge properly considered the boys' need for "permanency and
10 A-4671-14T1
stability," see ibid., and found "there is no other viable
alternative in this case" other than select home adoption – an
option he found less than ideal. He continued:
But, even if that doesn't work out, their
only, it's not the best, it's the only
possibility of permanency, security, of
finding an adoptive home is to terminate
parental rights. There's no way you can find
an adoptive home for these children unless you
terminate parental rights.
Time was a factor in the court's decision. The judge found
there was a "small window" to "get these children into an
appropriate home . . . that will love and care for them, provide
them permanency" so their "behavior will improve once they heal
and get to a place where they . . . can be understood and loved
and . . . get the appropriate attention."
Notwithstanding Mae's arguments that both boys expressed a
desire to live with her, that Jason was bonded to her and, in
fact, did act out after removal, and that the Division had not
found adoptive homes, giving due deference to the judge's findings,
N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49
(2012), we conclude the judge did not err in finding the Division
provided clear and convincing evidence as to the fourth prong.
The Division proved all four prongs and termination was properly
ordered.
11 A-4671-14T1
Mae and the law guardian also challenge the judge's denial
of the law guardian's motion for relief from the court's
termination of parental rights. The judge held hearings over two
days. He weighed the contentions advanced by the law guardian and
Mae that termination would do more harm than good. Regarding
Jason, his foster mother no longer wanted to adopt him because,
as anticipated by Dr. Hasson, his behavioral problems escalated
after termination; he was performing poorly in school; and he
maintained a desire to be with his mother. Regarding Jack, he was
stepped down to a group home, his behavior had improved, and he
now wanted to be returned to Mae's home. The judge agreed,
however, with the Division's argument that Mae was in no better
position to care for and provide permanency for the boys. He
noted she still did not have stable housing, and had "negligible"
employment which was inadequate to support herself alone, much
less the boys. He recognized that mother and sons had successful
visitation sessions, but there was nothing before him that showed
Mae was better able to care for the children.
Mae reasserts the same points on appeal, arguing that the
fourth prong was not proved by clear and convincing evidence,
chiefly because the boys expressed their desire to be reunified
with Mae, and have still not been placed in a permanent setting.
Likewise, the law guardian reiterates the contentions she
12 A-4671-14T1
presented to the trial judge, noting that the record is barren of
proof that the Division's search for adoptive homes will be
fruitful; hence the boys "face an uncertain future with no
permanency in sight." The Division counters that Jason "continues
in the same resource home" where he has resided for over four
years, and Jack "continues to receive services and was stepped
down from his residential placement" to a group home.
"Courts should use Rule 4:50-1 sparingly, in exceptional
situations." Hous. Auth. of Morristown v. Little, 135 N.J. 274,
289 (1994). In a termination of parental rights case, "[w]here
the future of a child is at stake, there is an additional weight
in the balance: the notion that stability and permanency for the
child are paramount." J.N.H., supra, 172 N.J. at 474-75 (citing
K.H.O., supra, 161 N.J. at 357-58). "Thus, in determining a Rule
4:50 motion in a parental termination case, the primary issue is
. . . what effect the grant of the motion would have on the child."
Id. at 475. Further, "the passage of time in a parental
termination case, especially where a child has successfully
adjusted to a long term placement, is of much greater significance
than it would be in practically any other context." Ibid. A
trial court's decision on a motion under Rule 4:50-1 "will be left
undisturbed unless it represents a clear abuse of discretion."
Little, supra, 135 N.J. at 283.
13 A-4671-14T1
We recognize that great harm can result if termination is
ordered "without any compensating benefit, such as adoption," and
that "[s]uch harm may occur when a child is cycled through multiple
foster homes" following termination. N.J. Div. of Youth & Family
Servs. v. E.P., 196 N.J. 88, 109 (2008). But a child's need for
permanency and stability is a "central factor" in these cases.
K.H.O., supra, 161 N.J. at 357.
Based on the circumstances, the judge, after concluding Mae
was incapable of parenting, found termination to be the boys' only
chance for permanency. If Mae had made progress in addressing the
issues that prevented her from offering her sons a stable
environment, she may have offered a better alternative than the
resource and group homes in which the boys then resided. E.P.,
supra, 196 N.J. 109-11. The post-trial changes did not present
the judge with a viable option to termination. Although the boys
were not adopted, Jason remained in the same foster home; Jack's
situation, although changed, improved; and Mae's situation did
not. The judge's denial of the motion for relief from judgment
was not wide of the mark or clearly mistaken to warrant our
intervention; it was a measured and supported decision.
We have considered the law guardian's report at oral argument
regarding the status of the boys. Neither child has been adopted.
Jack is living in a treatment home and has a goal of independent
14 A-4671-14T1
living. Jason's residence changed in May. The goal set for him
is select home adoption. Both Jack and Jason no longer want to
be reunited with Mae.5 We do not view these changes, especially
since there is no evidence Mae's situation changed from that found
by the trial judge, as requiring a remand for further review by
the court. Such a proceeding may hamper the Division's efforts
to find permanency for Jack and Jason, and there are no grounds
to order such relief.
Affirmed.
5
Although a child's wishes is "but one factor" in deciding the
best interests of a child, as our Supreme Court observed, they
"may often not be in their own best interests." E.P., supra, at
113.
15 A-4671-14T1