holding the Division failed to provide reasonable services to a wheelchair-bound parent with multiple sclerosis when it did not account for her mobility issues and insisted she use a transportation provider it knew to be a problem for the mother
How later courts described this case
- holding the Division failed to provide reasonable services to a wheelchair-bound parent with multiple sclerosis when it did not account for her mobility issues and insisted she use a transportation provider it knew to be a problem for the mother
Written by the judges who cited it.
The opinion
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NOT FOR PUBLICATION WITHOUT THE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-1691-24
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
A.I.C.,
Defendant-Appellant,
and
S.G.,
Defendant.
IN THE MATTER OF THE
GUARDIANSHIP OF T.C.,
a minor.
Submitted October 9, 2025 – Decided October 30, 2025
Before Judges Marczyk, Bishop-Thompson, and
Puglisi.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FG-13-0043-24.
Jennifer N. Sellitti, Public Defender, attorney for
appellant (Christine Olexa Saginor, Designated
Counsel, on the briefs).
Matthew J. Platkin, Attorney General, attorney for
respondent (Christopher Weber, Assistant Attorney
General, of counsel; Renee Greenberg, Deputy
Attorney General, on the brief).
Jennifer N. Sellitti, Public Defender, Law Guardian,
attorney for minor T.C. (Meredith Alexis Pollock,
Deputy Public Defender, of counsel; Jennifer M.
Sullivan, Assistant Deputy Public Defender, of counsel
and on the brief).
PER CURIAM
Defendant A.I.C. (Amy) 1 appeals from the Family Part's January 21, 2025
judgment of guardianship terminating her parental rights to her son, T.C. (Theo),
born of her relationship with S.G. (Steve). 2 Following our review of the record
and applicable legal standards, we affirm.
1
We use initials and pseudonyms to protect the privacy of the family. R. 1:38-
3(d)(12).
2
In October 2024, Steve executed an identified surrender of his parental rights
to S.R. (Sherri), Theo's resource parent and maternal cousin, to allow Sherri to
adopt Theo. He did not participate in this appeal. Amy and Steve have another
child together, who is not subject to this appeal.
A-1691-24
2
I.
A. Background and the Division's Early Involvement.
Amy is the biological mother of Theo, who was born in November 2019.
The New Jersey Division of Child Protection and Permanency (Division) first
became involved with Amy in January 2021 when it received a referral
concerning her substance abuse, allegations of physical abuse toward Theo's
older sister, and inadequate supervision. During the Division's investigation,
Amy acknowledged she had a history of mental health issues, including anxiety
and depression. She admitted she used marijuana to help her sleep at night, but
claimed she did not use it in front of her children or to feel "high." Amy further
stated she was interested in obtaining a medical card for her marijuana use. The
Division found the substance abuse allegations to be "not established" and the
physical abuse allegations to be "unfounded." However, it kept the family's case
open to provide services.
After its initial investigation, the Division referred Amy to the Mental
Health Association (MHA), which could assist her with housing, employment,
childcare, and mental health treatment. While Amy initially refused to engage
with the MHA, she eventually met with the organization in early 2021 to discuss
services. Thereafter, between March and June 2021, Amy's engagement with
A-1691-24
3
the MHA was inconsistent. Moreover, the Division requested Amy undergo a
substance abuse evaluation (SAE), which Amy denied needing and refused to
undertake.
Throughout this time, the Division had difficulty keeping in contact with
Amy, as she did not always have a working phone number. Accordingly, the
Division obtained a laptop for her so it could maintain contact with her.
Moreover, the Division expressed concerns regarding Theo's medical care,
noting he was not up to date on immunizations or "well visits," and that Amy
did not consistently address his upper respiratory issues. In response, the
Division referred Amy to its Child Health Unit (CHU) to help her schedule
medical appointments, arrange transportation, and ensure compliance with
medical recommendations. Early intervention services for Theo were also
considered, but Amy asserted such services were unnecessary for him.
The Division also arranged to provide Amy with a crib for Theo after
noting he had grown out of the pack-and-play, but Amy declined because she
was moving residences. Amy often moved, staying with relatives at times or in
motels.
A-1691-24
4
B. Theo's Removal, Early Visitation, and Resource Placement.
On or about July 12, 2021, the Division received a new referral concerning
Theo's health and location, claiming Amy could not be reached after leaving
Theo with his babysitter. The Division investigated and attempted to contact
Amy, but it was unsuccessful. The Division ultimately found Theo at his
babysitter's home, where he had been for a few days, while Amy's location
remained unknown.
On July 13, 2021, the Division executed an emergency removal of Theo
and placed him with his maternal aunt. Amy did not re-establish contact with
the Division until July 14. She provided two conflicting phone numbers, but
advised her number often changed. She informed the Division she was living
with her cousin Sherri at that time, though she could not remember the address,
then later advised she was at her grandmother's house. The trial court upheld
the Division's removal on July 15, finding Amy had "disappeared," left her
children in the care of others with no way to contact her, and lacked stable
housing.
Following Theo's removal, the Division immediately arranged supervised
visits between Amy and Theo and provided transportation for Amy. The first
visit was scheduled for July 22, 2021, which Amy missed. Amy attended the
A-1691-24
5
second visit but became "very combative," refused to let the Division's
caseworker transport her back home, and threatened the worker "that if she finds
out where [the worker] lives, she will be coming to [the worker's] house because
[the Division] got her kids." The next day, when a different Division worker
went to pick Amy up for her visit, while Theo and Theo's sister were in the car,
Amy and a friend "aggressively" approached the worker's car, appearing
"prepar[ed] to fight." However, Amy's attitude changed when she realized it
was not the same caseworker as the day before.
On August 11, 2021, the trial court ordered Amy to attend and complete
an SAE, speak with the Division's domestic violence liaison, engage with the
MHA, confirm and attend supervised visits with her children at least three times
per week, and maintain weekly contact with the Division. Moreover, given the
prior security concern, the court ordered the Division to cease transporting Amy
to visits and instead provide her with bus passes.
In August 2021, the Division moved Theo to Sherri's home where he has
since resided. Sherri was informed about Theo's medical needs and followed up
with his care, locating specialists for him. Earlier that month, prior to Theo's
placement with her, Sherri allegedly indicated to the Division she was willing
to let Amy and Theo live with her.
A-1691-24
6
C. Amy's Response to Division Services.
Between August 2021 and January 2022, the Division offered housing
assistance, mental health services, and substance abuse services to Amy per the
court's August 2021 order, however, Amy was inconsistent in her engagement
or non-compliant with such services. For example, the Division had to refer
Amy three times for an SAE before she complied on December 14, 2021; she
was recommended for level one outpatient treatment at that evaluation but
refused to comply.
By October 2021, despite the Division providing Amy with bus and train
passes, her court-ordered visitation with Theo was reduced from three times per
week to once per week due to her lack of consistent attendance, and the court
ordered the visits to only take place if she confirmed them in advance.
Thereafter, Amy refused to attend any supervised visits throughout the rest of
2021. The Division also re-referred Amy to the MHA, which agreed to re-open
her case contingent upon her cooperation. However, by January 2022, Amy's
case was closed out again because of "loss of contact." During this time, Amy
also was uncooperative in attending family team meetings with the Division. In
November 2021, the Division referred Theo to early intervention services, and
A-1691-24
7
he was diagnosed with a developmental delay and began receiving speech
therapy, physical therapy, and occupational therapy.
In February 2022, Dr. David Brandwein, Psy.D., conducted a
psychological evaluation of Amy. 3 During the evaluation, Amy informed Dr.
Brandwein she was unemployed, lacked stable housing, had some legal issues,
used marijuana daily, had a history of self-harm, attempted suicide at least three
times, and "hear[s] voices sometimes." She acknowledged she had been ordered
to complete level one outpatient treatment but stated she would not attend
because she instead planned to seek a medical marijuana card.
Dr. Brandwein concluded Amy could not be an independent caretaker for
Theo and recommended she only have visits with Theo supervised by the
Division. He recommended Amy undergo a psychiatric evaluation, participate
in individual therapy with either a cognitive behavioral therapy (CBT) or
dialectical behavioral therapy (DBT) component, and complete parenting
education classes. He further recommended she submit to random drug tests,
undergo an updated SAE, and engage in consistent visitation with Theo. Dr.
Brandwein also recommended, if Amy chose to pursue a medical marijuana
3
This evaluation was rescheduled from December 2021 after Amy failed to
attend that appointment.
A-1691-24
8
card, she should disclose her history of hearing voices to the evaluating medical
professionals. He cautioned, given Amy's mental health history, marijuana use
may lead to increased psychotic symptoms.
The Division discussed the evaluation with Amy, who disagreed with Dr.
Brandwein's report. Thereafter, and throughout 2022, the Division continued to
refer Amy to the services recommended by Dr. Brandwein, but Amy's
participation was marked by varying levels of inconsistency and non-
compliance.
Amy continued to miss scheduled supervised visits with Theo through
May 2022. Despite requesting the Division change the office location of the
visits in April 2022, Amy nonetheless did not attend a supervised visit until June
2022. However, Amy did attend Theo's adenoid surgery in May 2022.
In July 2022, the trial court granted the Division a three-month extension
to effectuate reunification and implement a permanency plan for Theo, noting
Amy's "willingness to become more engaged." Amy's participation in
supervised visits remained inconsistent throughout the rest of the year. Amy
contacted the Division in August 2022 to discuss medical concerns related to
her sickle cell disease. In response, the Division scheduled both a virtual and
in-person meeting to address expectations and Amy's concerns. The Division
A-1691-24
9
referred Amy to a parent support program at Catholic Charities, but she was
closed out in September 2022 for lack of communication. While Amy
eventually completed a parenting class at the Ocean Family Success Center
(OFSC), she did not complete any additional programs with the organization
after walking out of a family team meeting in January 2023.
Amy did not attend any scheduled visits with Theo in September 2022,
despite the Division's attempt to coordinate a better schedule for her. While
Amy attended more visits between October and November 2022, she missed
others, including Theo's birthday visit. Moreover, Amy canceled three visits in
December and left another early, claiming she had "to go to the hospital for [her]
depression." During that time, the Division visited Amy at her then-boyfriend's
home to discuss steps to reunify her with Theo at that location, the importance
of consistent visitation, and later to provide housing services when that
residence was not approved for Theo.
In October 2022, Amy attended a psychiatric assessment, where she was
diagnosed with post-traumatic stress disorder (PTSD) and bipolar disorder. The
Division referred Amy to Stress Care for CBT therapy, but she was subsequently
closed out after not attending. She engaged in medication management through
A-1691-24
10
December 2022. However, Amy never attended the level one outpatient
treatment as recommended by the SAE.
In January and February 2023, Amy's visitation with Theo remained
inconsistent. She also had difficulty parenting Theo and his sister during these
visits, and once told them she would "call the police" if they misbehaved. In
January, the Division and additional support programs tried to discuss services
and address visitation compliance with Amy but were unsuccessful, as she
became defensive, unable to have a productive conversation, and left the
meeting early.
In February 2023, Theo continued to experience ongoing health and
behavioral challenges. He required follow-up care with multiple specialists,
including pulmonology, nephrology, otolaryngology, cardiology,
neurodevelopment professionals, and a genetic specialist. Sherri coordinated
these appointments in collaboration with the Division and expressed her ongoing
resolve to address Theo's complex medical needs. During this time, Sherri
reaffirmed her commitment to adopting Theo, advising the Division she was not
interested in kinship legal guardianship (KLG). The Division, Sherri, and the
CHU also kept Amy informed of Theo's medical conditions throughout 2023.
A-1691-24
11
The Division also continued to try to connect Amy with needed services
throughout 2023, including referrals for therapeutic visitation, individual
therapy, updated SAEs, and various family team meetings. Amy's participation
in medication management through Stress Care was inconsistent that year. Upon
learning Amy had been hospitalized for suicidal ideations in February, the
Division re-referred Amy to Stress Care for CBT therapy as she was already
involved in their medication management services, but Amy did not attend.
In April 2023, the Division also referred Amy to the Children's Home
Society Reunification Program and to the OFSC for therapy, parenting skills,
and therapeutic visitation, but she did not complete intake sessions and was
closed out for non-compliance.
Amy attended an updated SAE in April 2023, where she tested positive
for marijuana and was recommended to attend level one outpatient treatment.
The Division made multiple referrals for treatment and emphasized the
importance of compliance, but Amy did not engage as required, resulting in her
discharge from the provider in June 2023 for non-participation.
In July 2023, the trial court again granted the Division another three -
month extension to effectuate reunification, noting Amy had recently been
A-1691-24
12
hospitalized for mental illness and still lacked stable housing, despite referrals
by the Division.
In May 2023, Theo underwent genetics testing, which Amy attended.
Thereafter, in July 2023, Theo was diagnosed with Hunter Syndrome, which is
a rare, life-limiting, genetic disorder that affects various bodily functions and
requires substantial medical care. Individuals diagnosed with Hunter Syndrome
have a life expectancy of ten to twenty-one years. The Division explained the
diagnosis to Amy and organized centralized care for Theo at St. Peter's Hospital,
including weekly enzyme treatments to slow the disease's progression. After
Theo's diagnosis, Sherri reiterated her intent to adopt Theo and continued to
monitor Theo's health and bring him to appointments. 4
Amy's participation in supervised visitation with Theo remained
inconsistent throughout the remainder of 2023. The Division invited Amy to
Theo's genetics appointment in October 2023, but the appointment was nearly
canceled due to Amy arriving late.
On January 3, 2024, the trial court approved the Division's permanency
plan to terminate Amy's parental rights and allow Sherri to adopt Theo. The
4
Sherri expressed initial concern about managing Theo's treatments because
she could not miss work and did not drive; however, she nonetheless reiterated
her commitment to caring for Theo and his medical needs.
A-1691-24
13
court reasoned termination was appropriate because Amy had not remediated
the concerns that led to Theo's removal, noting her failure to engage in substance
abuse treatment and noncompliance with mental health services. On March 1,
the Division filed a complaint for guardianship. On May 15, the protective
services litigation was terminated.
Throughout 2024, Amy continued to receive bus and train passes from the
Division. She continued to inconsistently attend Division supervised visits with
Theo through July 2024.
Amy missed an SAE appointment in February 2024, but she did engage in
an updated evaluation by the spring that year. Despite claiming she no longer
was using marijuana as of January 2024 and producing some negative drug tests,
Amy also had one positive test, and Division workers noted "a strong odor of
marijuana coming from [her]" during this timeframe. Amy was again referred
for level one outpatient treatment and provided with a list of providers, but she
refused to attend.
In March 2024, Theo began receiving weekly enzyme treatments for his
Hunter Syndrome, which Sherri attended with him. In April 2024, Amy attended
Theo's port surgery. However, she did not return the next day for the corrective
procedure he required, although she consented to the procedure by phone.
A-1691-24
14
In early 2024, the Division referred Amy to the YMCA for CBT/DBT
therapy after she began having issues with her therapy at Stress Care. However,
Amy was non-compliant, and the YMCA closed her out in April 2024. That
month, Amy informed the Division she had found her own virtual therapist at
Positive Reset. Amy attended consistently for a few months before she was
placed on a "no schedule list" for failure to pay her account balance, at which
point the Division referred Amy back to the YMCA, which offered free services.
After the YMCA made contact in September 2024, Amy attended a few
appointments but was later placed on a waitlist after requesting a new therapist.
By December 2024, Amy was no longer engaged with the YMCA but was
generally consistent with her medication management at Stress Care.
In July 2024, Amy underwent an updated psychological evaluation and
comparative bonding assessment with Dr. Brandwein. He found no substantive
improvements in Amy's parental capacity or psychological functioning since his
initial assessment. He concluded there was no evidence proving Amy had
remediated the Division's concerns that led to Theo's removal in 2021, citing her
refusal to engage in substance abuse treatment, lack of stable housing, and
inconsistent engagement with mental health services. Given Theo's special
needs and required medical care, Dr. Brandwein determined Amy could not be
A-1691-24
15
an independent caregiver for him at the time of that evaluation or in the
foreseeable future.
In conducting the bonding evaluations, Dr. Brandwein observed Amy
struggled to regulate Theo's behavior and found no evidence of a secure parent -
child bond between Amy and Theo. Comparatively, he found Sherri and Theo
shared a secure bond. Thus, Dr. Brandwein opined termination of Amy's
parental rights would not cause Theo to suffer psychological harm and
recommended termination so Sherri could adopt Theo.
D. The Guardianship Litigation.
The guardianship trial was held over four nonconsecutive dates between
October and December 2024. The Division presented testimony from several
witnesses, including Sherri, Theo's resource parent and current caregiver. The
Division also called: the intake worker during the Division's early involvement
with Amy's family; the permanency caseworker who managed Theo's transition
to placement with Sherri; the permanency caseworker who supervised the case
as it progressed towards guardianship; and the current adoption worker who
testified regarding permanency planning and Amy's compliance with services.
The Division's psychological expert, Dr. Brandwein, testified about his
evaluations of Amy and his bonding assessments for both Amy and Sherri. The
A-1691-24
16
Law Guardian relied on the Division's witnesses. Amy did not testify and
presented no witnesses or evidence at trial.
Sherri testified in detail about her role as Theo's caregiver since August
2021 and her commitment to Theo's wellbeing. She described Theo as
"outgoing" and "fun to be around." She explained Theo's speech was delayed,
but she was able to understand him by observing him and communicating
through American Sign Language.
Sherri testified about Theo's Hunter Syndrome diagnosis and the weekly
enzyme treatments she attended with Theo, which required him to be connected
to an IV bag for four hours per session. She recounted these treatments wipe
Theo out immediately after but then keep him up all night. Sherri explained she
must sleep lightly to hear Theo when he wakes up in the middle of the night.
Even though she did not drive, Sherri explained she either used medical
transportation or paid someone out of pocket to get Theo to his weekly
treatments. She testified, despite having been invited to do so, Amy never
attended any of Theo's weekly enzyme treatments during the past six months he
had been receiving them. Moreover, Sherri explained Theo also received speech
therapy, physical therapy, and saw a cardiologist, allergist, hematologist, ear
A-1691-24
17
specialist, and his regular pediatricians. Sherri administered Theo's daily blood
pressure, allergy, and asthma medications.
Additionally, Sherri testified she understood the differences between KLG
and adoption. She explained her desire to adopt Theo "so he could be stable"
and so she could continue to tend to his medical needs and ensure his happiness.
When asked if she would still care for Theo if the court ordered KLG, despite
her preference for adoption, Sherri stated she "would have to. Who else is going
to do it." She testified she intended to continue Theo's visits with his sister after
adoption and would be open to contact between Theo and his biological parents.
The intake caseworker testified about the Division's early involvement
with the family between February 2021 and July 2021. She discussed the events
that led to Theo's removal from Amy's custody and outlined the services the
Division offered to Amy both before and after Theo's removal. The caseworker
testified Amy lacked stable housing throughout her involvement in the case ,
explaining Amy lived intermittently with friends, family, or in motels. She
stated the Division provided Amy with a laptop so it could communicate with
her, but Amy nonetheless did not respond to the Division's communication
attempts. Moreover, she testified the Division offered Amy supervised visits,
SAEs, and MHA referrals, but Amy initially denied the need for services and
A-1691-24
18
refused to participate in them. The caseworker testified she was removed from
the case after Amy became aggressive toward her in July 2021.
The first permanency caseworker testified about his involvement with the
family from August 2021 to January 2022. He explained there were several
outstanding services for Amy when he initially became involved, including a n
SAE, mental health referral, and consistent participation in supervised visits
with Theo. The caseworker testified he re-referred Amy for an SAE because
she had missed appointments, although she did complete an evaluation by the
end of 2021. He also described difficulties communicating with Amy,
highlighting her lack of response, frequent changes in contact information, and
failure to confirm or attend scheduled visits at the Division's office. Th e
caseworker also explained he had no concerns abouts Sherri's care for Theo after
observing Theo at Sherri's home.
The second permanency caseworker testified about her involvement with
the family from January 2022 to January 2024. While she acknowledged issues
out of Amy's control related to the re-assignment of her therapists and virtual
appointments, the caseworker stated Amy nonetheless never consistently
engaged in the therapy recommended by the Division. She explained how she
tried to meet with Amy, schedule family team meetings, work with her on
A-1691-24
19
transportation issues, and help her identify barriers to attending appointments
and engaging in court-ordered services. However, Amy was not always willing
to engage and was difficult to contact. The caseworker also testified Amy had
still not engaged in the recommended and court-ordered substance abuse
treatment, had not progressed beyond supervised visits with Theo, still needed
to participate in individual therapy, but consistently attended medication
management visits by the end of that caseworker's involvement in January 2024.
Further, the caseworker testified she observed Theo to be a
"rambunctious," yet "very sickly child." She explained the Division coordinated
neurodevelopmental evaluations and genetic testing during her time on the case,
which led to Theo's Hunter Syndrome diagnosis. She testified Sherri always
coordinated with the Division and Theo's nurse to ensure Theo's medical and
behavioral needs were met. The caseworker recounted the Division and Sherri
worked together to enroll Theo in school and early intervention services. She
explained Sherri was "very attentive" to Theo during her monthly visits to
Sherri's home, Sherri and Theo had a good relationship, and Theo overall
seemed to be "doing great" and was "very active" there.
The adoption worker testified about her involvement with the family from
her assignment in January 2024 until the time of trial. She described efforts to
A-1691-24
20
engage Amy in required services, explaining the Division referred Amy to
individual therapy at the YMCA after she began having difficulty at Stress Care.
Despite this referral, the adoption worker testified Amy opted to use a different
community provider, Positive Reset, with which she engaged for a few months
beginning in April 2024 but later "missed a couple of appointments" and was
subsequently placed on a "Do Not Schedule" list. The adoption worker
explained she then put in another referral for Amy at the YMCA, where Amy
would not have to pay for therapy, but Amy asked for a new therapist and was
placed on a waiting list after attending a couple of sessions in September 2024.
The adoption worker testified Amy was "not currently engaged" in therapy but
was compliant with medication management at the time of trial.
The adoption worker further testified that while Amy did engage in an
updated SAE in spring 2024, she was still unwilling to engage in the
recommended level one substance abuse treatment through the time of trial.
According to the adoption worker, Amy claimed to have obtained a medical
marijuana card in 2024, and while she never observed Amy to be under the
influence, she nonetheless smelled marijuana on Amy once or twice. With
respect to supervised visits with Theo, the adoption worker noted Amy's
attendance was inconsistent until twice-per-week therapeutic visits through the
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21
YMCA began in April 2024. However, Amy later missed too many
appointments with the YMCA causing her therapeutic visits with Theo to be
reduced from twice per week to only once per week.
The adoption worker also confirmed Amy did not attend any of Theo's
weekly enzyme treatments despite the Division providing her with bus and train
passes to do so, at a cost of $386 per month to the Division.5 Ultimately, the
adoption worker emphasized the Division's ongoing concerns regarding Amy's
ability to independently parent Theo, which included "a lack of stable housing,"
"lack of . . . employment," and "not completing any of the . . . [c]ourt-[o]rdered
recommended services." These concerns ultimately led the Division to its
conclusion termination was in Theo's best interests.
Dr. Brandwein testified as an expert in clinical and forensic psychology.6
He testified he had previously conducted two separate psychological evaluations
of Amy as well as bonding evaluations for both Amy and Sherri. Dr. Brandwein
explained the purpose of his initial psychological evaluation in February 2022
was to assess Amy's parental competency and provide recommendations for
5
The adoption worker also testified she offered to help Amy read the train and
bus schedules, but Amy did not take advantage of the assistance.
6
All parties stipulated to Dr. Brandwein's credentials and expertise.
A-1691-24
22
services that would help Amy resolve the issues that led to the Division's
involvement. He noted at that time Amy was unemployed, struggling to find
stable housing, self-medicating her anxiety with marijuana, and had a substantial
history of mental health difficulties. He expressed concern that Amy said she
was not visiting Theo at that time because she preferred not to go to the
Division's office, where she felt uncomfortable. He testified Amy's lack of
visitation with Theo was concerning because visiting is the "way for a parent to
maintain connection" to their child when that child is placed in resource care.
Dr. Brandwein testified he was concerned with Amy's marijuana use,
given her reported history of hearing voices, and about her using marijuana
around Theo due to his "serious and significant special needs." He testified he
arrived at three main diagnoses for Amy: "bipolar one disorder severe with
psychotic features"; chronic PTSD; and severe cannabis use disorder. Based on
his evaluation, Dr. Brandwein testified he recommended only supervised contact
between Amy and Theo because of his concerns related to Amy's untreated
mental health, need for parenting education and suitable housing, and lack of
visitation with Theo. He recommended, for reunification, Amy undergo
psychiatric evaluation, individual therapy, a parenting education program, an
updated SAE, and consistent visitation with Theo on a weekly basis.
A-1691-24
23
Regarding his July 2024 reevaluation of Amy, Dr. Brandwein noted Amy
exhibited "patterns of inconsistent compliance, noncompliance, and non-benefit
from Division services." He stated Amy's ability to safely parent any child was
"completely dependent on consistent engagement in mental health services,
medication management, [and] individual therapy," yet she did not appear to
comprehend her long-term need for those services. Dr. Brandwein testified his
opinion from his first evaluation—that Amy was incapable of independently
parenting Theo—had not changed because he "did not see . . . a substantive
change in [Amy]'s parental competency or psychological functioning" nor
"resol[ution of] the issues that led the Division to remove T[heo] over three and
a half years ago."
Dr. Brandwein next testified regarding the importance of stability for
Theo, given his special needs. He stated Amy's failure to complete the substance
abuse program was concerning, not as it pertained to her marijuana use, but as
to her "stubbornness," and her belief that it was "too much" 7 signified she was
"not willing to do what it takes to be reunified with T[heo]." Moreover, Dr.
7
Dr. Brandwein specified the outpatient program Amy deemed "too much for
her" would have required two hours of her time per week for twelve weeks.
A-1691-24
24
Brandwein highlighted the importance of Theo having spent most of his life in
the care of Sherri, who is knowledgeable about his special needs.
Dr. Brandwein testified his "ultimate recommendation was for . . . the
[c]ourt to award guardianship of . . . T[heo] to the Division." He reasoned
children with special needs require "someone who is consistently attuned to that
child, ready to respond to any emergent situations, and ready to do what needs
to be done." Thus, Amy's refusal to attend substance abuse treatment because it
required too much of her time was concerning because "[w]hat if there was
something she needed to do for T[heo] that . . . she also felt took up too much
of her time." He reasoned, "it's really the interaction between [Amy's] mental
health needs and the lack of stability [for] . . . T[heo], who has a fatal disease
[and] is going to have emergencies associated with it through [his] life."
Regarding the bonding evaluations, Dr. Brandwein testified about the
"importan[ce] [for Theo] to have a caregiver who is going to be able to make
[him] as comfortable as he possibly can be for however long he has." He
testified although Theo was clearly comfortable and familiar with Amy, they
nonetheless lacked a "secure bond." In contrast, Dr. Brandwein testified he
found a "secure bond" between Theo and Sherri, highlighting Sherri's
preparedness and knowledge of Theo's medical needs. He testified he observed
A-1691-24
25
Theo initiate a hug with Sherri during their evaluation but did not see Theo
approach Amy for similar affection during theirs.
Dr. Brandwein noted, "T[heo] is [going to] need a lot of educational,
medical, [and] social . . . support to have the best quality of life he can have.
And T[heo] not only needs a parent, he needs a care coordinator. That's not
[Amy]. Not now and not in the foreseeable future." He stated "termination of
[Amy's] parental rights w[ould] not cause more harm than good" to Theo and
opined the Division should be awarded guardianship so Sherri may adopt Theo.
On January 21, 2025, the court issued an order of judgment and written
decision. In its decision, the trial court first outlined the testimony provided at
trial and its evaluation of each witness's credibility. It found the Division's four
caseworkers to all be credible witnesses, specifically describing their
testimonies as "straightforward," "forthright," "professional," and "supported by
documentation in evidence." Specifically, the court found Sherri to be an
"inherently believable" and "very credible witness." It emphasized her
"straightforward" manner, lack of reluctance to answer questions, and that "her
physical presence and tone reflected knowledge and a commitment to ensuring
T[heo] receives the necessary medical care while doing so in a loving manner."
The court credited Dr. Brandwein as a "very credible expert witness," describing
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his testimony as forthright, professional, and detailed. It noted "[t]here were no
contradictions in any aspect of his testimony" and that he showed no special
interest in the case's outcome.
The court explained, as discussed more fully below, how the Division
proved the four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing
evidence. Thus, the court granted the Division's application and terminated
Amy's parental rights to Theo.
II.
On appeal, Amy argues the trial court's judgment terminating her parental
rights should be reversed because the record does not support the court's legal
conclusions. Amy contends the court erred in concluding: (1) Theo's safety,
health, or development has been or will continue to be endangered by his
relationship with Amy; (2) Amy is unwilling or unable to remediate her
perceived parenting issues; (3) the Division made reasonable efforts to provide
services and that alternatives to termination were properly considered; and (4)
terminating Amy's parental rights would not do more harm than good.
A.
An appellate court's review of a decision "to terminate parental rights is
limited." N.J. Div. of Child Prot. & Permanency v. C.J.R., 452 N.J. Super. 454,
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468 (App. Div. 2017). This court affords substantial deference to the trial court's
opportunity to have observed the witnesses first-hand and to evaluate their
credibility. N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014).
"Our general deference on appeal is also informed by the Family Part judge's
'feel of the case[,]'" N.J. Div. of Child Prot. & Permanency v. D.H., 469 N.J.
Super. 107, 116 (App. Div. 2021) (quoting N.J. Div. of Youth & Fam. Servs. v.
E.P., 196 N.J. 88, 104 (2008)), and by the Family Part's "special expertise in
matters related to the family." N.J. Div. of Youth & Fam. Servs. v. F.M., 211
N.J. 420, 448 (2012). An appellate court will not reverse a termination decision
when it is supported by "substantial credible evidence in the record." C.J.R.,
452 N.J. Super. at 468. "Only when the trial court's conclusions are so 'clearly
mistaken' or 'wide of the mark' should an appellate court intervene and make its
own findings to ensure that there is not a denial of justice." E.P., 196 N.J. at
104 (quoting N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605
(2007)).
The termination of parents' rights to raise their children is a matter of
constitutional magnitude. In re Guardianship of K.H.O., 161 N.J. 337, 346
(1999). "Severing the ties between a child and a parent is . . . a weapon of last
resort in the arsenal of state power." F.M., 211 N.J. at 447. As this court
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articulated, "[a]fter the elimination of the death penalty, we can think of no legal
consequence of greater magnitude than the termination of parental rights." In
re Adoption of a Child by J.E.V., 442 N.J. Super. 472, 481 (App. Div. 2015).
A parent's right to raise their children, however, is "not absolute" but
limited "by the State's parens patriae responsibility to protect children." F.M.,
211 N.J. at 447. Because termination permanently severs the legal relationship
between parent and child, it should be ordered only where "proof of parental
unfitness is clear." Ibid. The burden is on the State to satisfy, by clear and
convincing evidence, four factors outlined under the best-interests-of-the-child
test:
(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 [TPR]; and
(4) [TPR] will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a).]
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These "four criteria are not discr[ete] and separate, but overlap with each
other . . . to identify a child's best interests." N.J. Div. of Youth & Fam. Servs.
v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001). The State must demonstrate
a parent "has not cured the initial cause of harm and will continue to cause
serious and lasting harm to the child." In re Guardianship of J.C., 129 N.J. 1,
10 (1992). "[A]ll doubts must be resolved against [TPR]." K.H.O., 161 N.J. at
347. The court must consider "not only whether the parent is fit, but a lso
whether [they] can become fit within time to assume the parental role necessary
to meet the child's needs." N.J. Div. of Youth & Fam. Servs. v. R.L., 388 N.J.
Super. 81, 87 (App. Div. 2006).
B.
Amy argues the trial court erred in finding her relationship with Theo
endangered his safety, health, or development under prong one, and its
determination under prong two—that she was unwilling or unable to remediate
such harm or provide a safe and stable home—is not supported by the record.
Under prong one, Amy argues the trial court improperly presumed she
"willfully failed to address her perceived substance abuse and mental health
issues, thereby endangering . . . Theo" because the record lacks evidence such
failure endangered Theo. She contends her "status as a recreational marijuana
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user cannot suffice as the sole or primary reason to terminate [a] parent's rights
. . . unless the Division proves with competent, case-specific evidence" that it
endangers the child, citing our holding in D.H. See 469 N.J. Super. at 113.
Amy argues the Division failed to prove her marijuana use endangered
Theo, emphasizing her use was legal, limited to small amounts to help her sleep,
that she never experiences a "high" from her use, was able to stop without
treatment, and never used it in front of her children. She highlights she was
forthcoming about her use, neither the Division nor Dr. Brandwein ever
observed her to be under the influence, and the Division determined the
substance abuse allegations against her were unfounded. Amy avers the
Division removed Theo because she left him with a babysitter, not because of
her marijuana use.
Amy next claims the trial court improperly concluded "her unaddressed
mental health issues . . . have endangered and will continue to endanger T[heo]"
because "[m]ental illness, alone, does not disqualify a parent from raising a
child." See F.M., 211 N.J. at 450-51. Contrary to the court's findings, Amy
contends she made substantial efforts to participate in mental health treatment
and medication management, but asserts the Division failed to afford her a
"meaningful opportunity" to address its concerns in therapy. Amy notes she had
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been reassigned therapists and had therapists who failed to show, which she
claims negatively impacted her progress.
Under prong two, Amy argues the trial court improperly based its
conclusion—that she had failed to remediate the harm to Theo and was unable
to provide a safe and stable home for him—on Dr. Brandwein's "unreliable
opinion" and claims the court mischaracterized her reunification efforts. She
avers the record reflects she completed the recommended parenting instruction,
met with the Division's domestic violence liaison, participated in medication
management, visited with Theo, and submitted to SAEs.
Amy claims any noncompliance resulted from the Division's failure to
provide recommended services, inflexible visitation demands, and insufficient
transportation accommodations. She claims the trial court's decision conflicts
with legal precedent prohibiting discrimination against parents who require
accommodations for their mental or physical conditions to improve their
parenting. See N.J. Div. of Child Prot. & Permanency v. T.D., 454 N.J. Super.
353, 382-83 (App. Div. 2018) (holding the Division failed to provide reasonable
services to a wheelchair-bound parent with multiple sclerosis when it did not
account for her mobility issues and insisted she use a transportation provider it
knew to be a problem for the mother). Amy also contends the court erred in
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relying on Dr. Brandwein's opinion that there was no evidence of a bond between
her and Theo because it was based on limited observations.
Prongs one and two "are related to one another, and evidence that supports
one informs and may support the other as part of the comprehensive basis for
determining the best interests of the child." In re Guardianship of DMH, 161
N.J. 365, 379 (1999). Under the first prong of N.J.S.A. 30:4C-15.1(a), "the
Division must prove harm that 'threatens the child's health and will likely have
continuing deleterious effects on the child.'" N.J. Div. of Youth & Fam. Servs.
v. A.L., 213 N.J. 1, 25 (2013) (quoting K.H.O., 161 N.J. at 352). 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. "To satisfy this
prong, [the Division] does not have to wait 'until a child is actually irreparably
impaired by parental inattention or neglect.'" F.M., 211 N.J. at 449 (quoting
DMH, 161 N.J. at 383).
Prong two relates to parental unfitness. K.H.O., 161 N.J. at 352. It
requires the Division to show a parent is unable or unwilling to correct the
circumstances that led to the agency's involvement or that they cannot provide
a safe and stable home for their child, thus delaying permanency. Id. at 348-49.
The inquiry "centers on whether the parent is able to remove the danger facing
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the child." F.M., 211 N.J. at 451 (citing K.H.O., 161 N.J. at 352). This prong
"may be met by indications of parental dereliction and irresponsibility, such as
the parent's continued or recurrent drug abuse, the inability to provide a stable
and protective home, [and] the withholding of parental attention and care[.]"
K.H.O., 161 N.J. at 353. "The determinative issue is whether the circumstances
surrounding the parental relationship, including any relationships with [others],
cause harm to the child." N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J.
261, 289 (2007).
Under prong one, the trial court found the Division had proven "T[heo]'s
safety, health[,] or development has been and will continue to be endangered by
the parental relationship" with Amy. The court reasoned Amy's "mental health
and substance abuse issues remain unaddressed," since she essentially
abandoned Theo in July 2021, despite the Division consistently offering
opportunities over the three years following Theo's removal for her to do so.
The court relied on Dr. Brandwein's testimony regarding his updated 2024
psychological evaluation of Amy, in which he opined he could not endorse Amy
as an independent caregiver for Theo, given his significant special needs,
because she had not resolved the issues that previously led to his removal three
years prior. The court noted Dr. Brandwein's evaluation found Amy continued
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to lack sufficient housing for her children, consistent employment, failed to
complete level one outpatient substance abuse treatment, and had not
consistently complied with mental health treatments. It noted Dr. Brandwein's
concern that Amy was only able to name one of her medications. It further noted
his concern Amy was choosing to self-medicate with marijuana to address her
anxiety and sleep, despite her diagnosis of "[b]ipolar [one] [d]isorder . . . with
psychotic features." Thus, the court concluded Amy's "unaddressed mental
health and substance abuse concerns that have caused T[heo] to remain in
[Sherri's] care . . . since August 2021 have endangered and will continue to
endanger T[heo]'s safety, health[,] or development."
Under prong two, the court found Amy was unwilling or unable to
eliminate the risk of harm to Theo. It reasoned Amy's "unwillingness or inability
to . . . address her substance abuse issues and mental health concerns "
demonstrated "a continued lack of understanding by [Amy] regarding the harm
that initially resulted in the Division assuming custody of T[heo], and her
resistance to changing the harmful situation." It noted the Division had
continuously provided Amy with "multiple opportunities to engage in and
successfully complete substance abuse treatment and mental health treatment "
over the three-year period, which Amy had failed to do.
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Moreover, the court found Amy was also "unable or unwilling to provide
a safe and stable home for T[heo], and the delay in permanency w[ould] add to
the harm." It reasoned Amy remains unable to provide a safe and stable home
for Theo due to her refusal to participate in the "numerous community resources
and programs . . . which can assist with addressing housing issues ." The court
further noted Dr. Brandwein opined, based on his bonding evaluations, he did
not see evidence of a secure bond between Theo and Amy because Theo did not
look to Amy to fulfill parental functions. Thus, the court concluded "any further
delay in permanency w[ould] only add to the harm" to Theo.
We conclude the record sufficiently supported the trial court's conclusion
that the Division proved the first two prongs by clear and convincing evidence.
Under the first prong, the trial court appropriately found Amy's "mental health
and substance abuse issues remain unaddressed," despite three years of Theo
living in a resource home. Under the second prong, the court likewise concluded
Amy is unwilling and unable to remediate the harm to Theo, provide a safe and
stable home for him, and that any delay in permanency for Theo will only add
to his harm.
Contrary to Amy's argument, the trial court did not determine Theo would
continue to be harmed solely based on Amy's recreational marijuana use or her
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mental health diagnoses. Instead, the record clearly reflects the trial court's
conclusions stemmed from Amy's failure to address her substance abuse or
consistently engage in mental health treatment, with Division caseworkers and
Dr. Brandwein's expert testimony highlighting her lack of consistent progress
notwithstanding numerous referrals. Furthermore, Dr. Brandwein's concerns
regarding Amy's marijuana use related to its impact on her mental health issues,
such as hearing voices, which is why she was recommended to attend a level
one treatment for her drug use, which she never completed.
Moreover, the court noted Dr. Brandwein, whom it deemed forthright and
detailed in his testimony, established Amy continued to lack sufficient housing
for Theo, lacked employment, had no means to support herself, and had not
consistently complied with mental health treatment or substance abuse treatment
while Theo languished in foster care. The record also supported the court's
conclusion, by way of Dr. Brandwein's unrebutted testimony, Theo's Hunter
Syndrome diagnosis required a stable and consistent caregiver, and Amy could
not function as that independent caretaker.
We are satisfied the trial court did not err in determining Amy was unable
to provide a stable home for Theo. We are also unpersuaded the Division failed
to provide Amy sufficient opportunities to address her mental health issues. She
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inconsistently complied with recommended therapy and did not meaningfully
participate, but more importantly did not significantly benefit from the services
she attended. Furthermore, Amy never progressed beyond supervised visitation
sessions. Thus, the trial court's findings under prongs one and two were amply
supported by the evidence in the record.
C.
Amy argues the trial court erred in concluding the Division met its burden
under part one of prong three because the Division failed to provide services
reasonably designed to assist her and did not strive to overcome the barriers to
services. She claims the Division denied her a meaningful opportunity to
address her mental health and frustrated her efforts to maintain her relationship
with Theo.
Amy also contends the Division failed to ensure she received the
recommended type of therapy, despite her mental health being a central issue in
this matter. She insists the Division's providers were either not qualified to
provide appropriate therapy or had scheduling and attendance issues,
undermining her good faith efforts towards reunification. Amy asserts she more
consistently attended therapy after she began receiving treatment in the
appropriate modality.
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Next, Amy argues the Division failed to provide her with reasonable
transportation services, given its knowledge of her limitations. Specifically, she
claims the Division made minimal efforts to assist her in the use of public
transportation, despite knowing she lacked personal transportation and financial
resources, and experienced anxiety about navigating the bus system for the first
time. She notes, although the Division offered to help her learn how to read a
bus schedule, it never offered to travel to her location or offered her any other
options besides bus passes. Amy contends the Division's failure to provide
sufficient transportation support caused her to miss or be late for visits. She
also claims she was unable to attend Theo's weekly enzyme treatments because
Sherri refused to offer her a ride, and the bus and train passes provided by the
Division did not cover the entirety of her route.
Moreover, Amy claims, for the first time on appeal, the Division did not
provide adequate transportation accommodations, given her sickle cell disease,
which frequently causes severe pain and limited her ability to use public
transportation. She asserts the Division failed to act in accordance with Title II
of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act
of 1973. While the Division declined to continue offering Amy door-to-door
transportation, deeming her a "worker safety concern" after the incident in
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August 2021, Amy contends there "was no indication [she] continued to pose a
risk."
Regarding part two of prong three, Amy argues the trial court erred in
relying on Sherri's preference for adoption rather than considering the feasibility
of KLG, which Amy claims was a viable alternative to termination the Division
and the trial court failed to properly consider. She asserts the trial court
"erroneously treated Dr. Brandwein's recommendation of adoption as
dispositive" based on Sherri's preference for adoption. Amy notes Dr.
Brandwein acknowledged Sherri's preference for adoption "certainly played a
role" in his recommendation of adoption over KLG, but he would not have
"st[ood] in the way" had Sherri agreed to KLG. She claims "Dr. Brandwein did
not consider Sherri's testimony that, despite her stated preference for adoption,
she would continue to care for Theo if the court ordered KLG."
Additionally, Amy also argues the Division overlooked other options that
would have kept her and Theo together. She claims the Division failed to follow
up with Sherri about an alleged offer she made back in July 2021, just a few
weeks after Theo's removal, for both Amy and Theo to live with her. Amy
further contends the Division failed to explore the options of either a safety
protection plan or in-home parent support services, which she asserts "could
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have provided [her] with sufficient guidance and oversight to allow Theo to
remain safely in her care."
The third prong requires the Division to undertake "reasonable efforts to
provide services to help the parent correct the circumstances which led to the
child's placement outside the home" and requires the court to consider
"alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3).
"Reasonable efforts" include, but are not limited to:
(1) consultation 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
(4) facilitating appropriate visitation.
[N.J.S.A. 30:4C-15.1(c).]
Courts do not measure reasonableness by the "success" of the efforts. N.J.
Div. of Youth & Fam. Servs. v. J.S., 433 N.J. Super. 69, 90 (App. Div. 2013)
(quoting DMH, 161 N.J. at 393). What is reasonable "depend[s] on the facts
and circumstances of each case." R.G., 217 N.J. at 557.
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Regarding the second aspect of prong three, our jurisprudence recognizes
two permanency options: KLG and adoption. N.J. Div. of Youth & Fam. Servs.
v. P.P., 180 N.J. 494, 507-08 (2004) (citing N.J.S.A. 3B:12A-1). KLG is
considered an alternative to termination of parental rights that offers
permanency and stability to a child residing with a relative or kinship caregiver.
See N.J. Div. of Youth & Fam. Servs. v. L.L., 201 N.J. 210, 222-25 (2010)
(discussing the KLG Act and its intent). Unlike termination of parental rights,
KLG does not cut off the legal relationship between a parent and child. N.J.
Div. of Youth & Fam. Servs. v. S.V., 362 N.J. Super. 76, 87 (App. Div. 2003).
The parent remains entitled to visitation and has the right to seek termination of
guardianship and resumption of custody at a later date if the parent is able to
provide a safe and secure home for the child. Ibid.
In cases involving alternatives to termination, the feasibility of appointing
a KLG are considered under prong three. R.G., 217 N.J. at 558. A child's
attachment to third parties "does not provide an independent basis for
termination where the other standards have not been satisfied." G.L., 191 N.J.
at 609. "Once [the caregiver] is provided with [the benefits and burdens of a
KLG], the caretaker's preference between the two alternatives should matter."
N.J. Div. of Youth & Fam. Servs. v. M.M., 459 N.J. Super. 246, 263 (App. Div.
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2019). However, while the resource parent or caregiver's preference is relevant,
it is not dispositive. Id. at 264.
Under part one of prong three, the court found the Division made
reasonable efforts to provide services to Amy in support of reunification and
considered alternatives to termination. The court found Amy's assertion that the
Division did not make reasonable efforts to assist her "to be devoid of merit." It
reasoned "throughout the past three years, [Amy] had been repeatedly referred
for substance abuse evaluations . . . [and] treatment, assistance with housing,
psychological and bonding evaluations, mental health treatment, transportation
for visits, and supervised parenting time." The court noted, however, Amy had
not used, engaged in, or successfully completed those services.
Regarding the second part of prong three—alternatives to termination—
the court found: Sherri had been advised of and understood the differences
between KLG and adoption; Sherri testified she would be open to contact with
Theo's biological parents to keep them updated on Theo's life if she adopted
him; and Sherri expressed her desire to adopt Theo and provide him with
medical care and a stable living situation. The court noted Sherri testified she
was not open to KLG and thus found there was no alternative plan to the
termination of Amy's parental rights.
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We affirm the trial court's decision with respect to prong three
substantially for the reasons set forth in its comprehensive and thoughtful
decision. We add the following. Although the Division concedes there were
"some issues" finding Amy a qualified provider, as the court noted, she was
inconsistent with her mental health treatment and never demonstrated she was
capable of independently parenting Theo, despite the extensive services afforded
to her. The Division made repeated referrals for SAEs, referring Amy at least
three times. The Division also continued to re-refer Amy for mental health
services after she was closed out for non-attendance. The record amply supports
the trial court's conclusion the Division made reasonable efforts to provide Amy
with services to remediate the harm that led to Theo's removal.
Likewise, the Division provided Amy with monthly bus and train passes
after the Division determined it could no longer safely transport Amy.
Moreover, the Division offered her assistance in navigating the bus and train
schedules. With respect to Amy's argument the Division did not provide her
with adequate transportation in light of her sickle cell disease, we note this issue
was not raised before the Law Division and was only raised for the first time on
appeal. We ordinarily decline to consider an issue not properly presented to the
trial court unless the jurisdiction of the court is implicated or the matter concerns
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44
an issue of great public importance. Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973). Neither circumstance is present in this matter. Nevertheless,
we observe Amy never requested any accommodation for her sickle cell disease,
and the record only contains a few instances of Amy claiming she was suffering
from a related flare-up. Moreover, the record reflects Amy successfully utilized
public transportation several times during the course of this litigation.
The Division placed Theo with Amy's cousin, Sherri, where he remained
since removal. Moreover, Sherri unequivocally stated she understood the
distinction between KLG and adoption and affirmed her commitment to
adoption. She noted she desired to adopt Theo so she could provide him with
stability and tend to his medical needs, and stated she would be open to
maintaining contact with Amy after adoption. After considering alternatives,
the court ultimately determined adoption was in Theo's best interests. We
discern no basis to disturb the court's decision.
D.
Amy next argues the trial court's termination of her parental rights should
be reversed because the trial court's conclusion under prong four "rested on the
unreliable opinion of [the Division]'s expert," Dr. Brandwein, which she
contends was "incongruous with the facts in evidence." She claims Dr.
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Brandwein assumed she was not compliant in medication management when the
record reflected she was by the time of trial. Moreover, Amy contends Dr.
Brandwein's support for termination did not account for the "numerous positive
and appropriate" interactions she had with Theo.
Further, Amy claims, by deferring to Dr. Brandwein's opinion, the trial
court effectively allowed Sherri's personal preference for adoption to control its
conclusion, without weighing whether termination was actually in Theo's best
interests or considering alternative outcomes that could similarly benefit Theo.
She points to Dr. Brandwein's testimony that Theo would not be harmed by
continued contact with her and that he would endorse KLG if Sherri agreed to
it, and Sherri's testimony that she would continue to care for Theo even if the
court ordered KLG.
Amy further asserts there is no credible evidence in the record showing
Theo would be harmed by a relationship with her, "regardless of whether she is
prepared to provide for his daily care." She argues the trial court ignored that
Sherri was ultimately willing to engage in KLG if the court ordered it and claims
the court's analysis "should have been informed by Theo's best interests and not
Sherri's personal preference."
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Prong four of the best-interests test addresses whether termination "will
not do more harm than good." N.J.S.A. 30:4A-15.1(a)(4). It "serves as a fail-
safe against termination even where the remaining standards have been met."
E.P., 196 N.J. at 108. "The question ultimately is not whether a biological
mother or father is a worthy parent, but whether a child's interest[s] will best be
served by completely terminating the child's relationship with that parent." Ibid.
The question to be addressed "is whether, after considering and balancing the
two relationships, the child will suffer a greater harm from the termination of
ties with [their] natural parents than from the permanent disruption of [their]
relationship with [their] foster parents." K.H.O., 161 N.J. at 355. "[A] child's
need for permanency is an extremely important consideration pursuant to this
prong." R.G., 217 N.J. at 559.
"[A] child has a right to live in a stable, nurturing environment and to have
the psychological security that [their] most deeply formed attachments will not
be shattered." F.M., 211 N.J. at 453. But "[k]eeping the child in limbo, hoping
for some long[-]term unification plan, would be a misapplication of the law."
A.G., 344 N.J. Super. at 438. Accordingly, termination is appropriate when it
"will result, among other things, in a permanent resolution of the child's status."
N.J. Div. of Child Prot. & Permanency v. A.W., 103 N.J. 591, 610 (1986).
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Similarly, "'termination of parental rights likely will not do more harm than
good' where the child has bonded with the resource parents in a nurturing and
safe home." N.J. Div. of Youth & Fam. Servs. v. L.J.D., 428 N.J. Super. 451,
492 (App. Div. 2012) (quoting E.P., 196 N.J. at 108).
A court must also consider "the child's age, [their] overall health and
development, and the realistic likelihood that the [biological] parent will be
capable of caring for the child in the near future." K.H.O., 161 N.J. at 357.
Although there is a "natural tendency to want to continue working with
parents[,]" the Court has cautioned that courts "must not lose sight of time from
the perspective of the child's needs." Ibid. "[T]he child's need for permanency
and stability" is the "central factor." Ibid. Thus, "[t]he harm to children that
results from a delay in achieving permanency and stability requires that limits
be placed on the amount of time granted a parent to correct [their] unfitness in
anticipation of possible future reunification with [their] children." N.J. Div. of
Youth & Fam. Servs. v. S.F., 392 N.J. Super. 201, 214 (App. Div. 2007).
Regarding prong four, the court found the termination of Amy's parental
rights would not do more harm than good to Theo. It found Theo had been with
Sherri for most of his life, during which time Sherri provided him with a stable
and safe home and consistently met all his needs, including the complex medical
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48
care required for his Hunter Syndrome diagnosis. The court emphasized Theo's
"secure bond" with Sherri, as observed by Dr. Brandwein during their bonding
evaluation. In contrast, the court noted Amy had never been recommended for
unsupervised visits with Theo, had never been endorsed by any expert as capable
of independently managing Theo's significant special needs, and had never
attended any of Theo's weekly enzyme treatments, despite the opportunity and
support to do so. The court also credited Dr. Brandwein's observation there was
no evidence of a secure bond between Amy and Theo, and Dr. Brandwein's
uncontroverted opinion that termination of Amy's parental rights would not
cause more harm than good.
We are unpersuaded by Amy's arguments and affirm for the reasons set
forth by the trial court regarding prong four. We do not question whether there
are some positive aspects of Amy's relationship with Theo. However, we
discern no error in the court's determination that Amy does not have a secure
bond with Theo and that severing her parental rights will not do more harm than
good, based on Dr. Brandwein's opinion. Theo, on the other hand, shares a
secure bond with Sherri, his primary caregiver over the past several years, who
has helped him navigate the serious medical issues he has faced. Moreover,
Amy was unable to ever progress beyond supervised visits and routinely failed
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to consistently attend those visits, despite being encouraged to do so and being
provided with transportation. More fundamentally, Dr. Brandwein noted Amy
was incapable of independently caring for Theo's complex medical needs.
Contrary to Amy's assertion, the court did not merely rely on Dr.
Brandwein's opinion or Sherri's preference as the sole basis for termination of
her parental rights. The court properly considered and weighed Theo's
respective bonds with Amy and Sherri based on the evidence presented at trial.
Furthermore, simply because Sherri testified she would continue to care for
Theo even if the court had ordered KLG does not demonstrate the court erred in
finding the Division satisfied prong four. Rather, it revealed Sherri's
commitment to caring for Theo regardless of the court's ultimate holding. In
short, there was adequate, substantial, and credible evidence in the record to
support the court's finding that termination of Amy's parental rights would not
do more than good to Theo under prong four when Sherri has "provided stability
and a safe home," and Amy remains unable to do so for the foreseeable future.
Affirmed.
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