The opinion
RECORD IMPOUNDED
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APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5099-15T3
A-5390-15T3
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
L.T. and J.L.-G.
Defendants-Appellants.
______________________________
IN THE MATTER OF THE
GUARDIANSHIP OF C.I.T.,
J.D.T., and K.M.T.,
Minors.
______________________________
Submitted May 10, 2017 – Decided June 22, 2017
Before Judges Lihotz, Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FG-12-79-16.
Joseph E. Krakora, Public Defender, attorney
for appellant L.T. (Marc D. Pereira,
Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney
for appellant J.L.-G. (James D. O'Kelly,
Designated Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Kimberly Ann Eaton, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Rachel E.
Seidman, Assistant Deputy Public Defender, on
the brief).
PER CURIAM
Defendants, L.T. (Laura) and J.L.-G. (John) appeal from a
July 8, 2016 judgment of guardianship terminating their parental
rights.1 We affirm.
Laura is the biological mother of Caryn, Josh, and Kristy.
John is the biological father of Kristy;2 Laura and John have been
together for more than ten years. Laura has a tenth grade
education, and suffers from some cognitive limitations. John was
born in Honduras and immigrated to the United States in 1985.
In 2010, the Division of Child Protection and Permanency
(Division) received a referral because Josh was psychiatrically
hospitalized for the second time for behavioral issues. On
1
We use pseudonyms to protect the identity of the parties and
their children.
2
The fathers of Caryn and Josh have not been identified and are
not parties to this appeal.
2 A-5099-15T3
September 20, 2013, a neighbor reported the family to the Division.
The neighbor was afraid for the children who appeared dirty and
hungry, and who feared Laura and John because they hit them. The
neighbor also reported bed bugs in the home. The neighbor reported
Caryn complained John was looking at her chest, which made her
uncomfortable, and Caryn kept a journal documenting her fear of
Laura and John.
When the Division caseworker arrived to investigate, the
caseworker noted Josh had bruises and small circular marks on his
legs, which Josh said resulted because he often falls. Josh
reported John hits him with his hand and pulls his hair out. Josh
reported John makes him sit in "time out" for four hours, and John
curses and makes his mother cry. During the caseworker's interview
with Caryn, she reported John "always yells at us" and makes her
cry and feel scared and nervous. Caryn reported John makes her
uncomfortable when he talks about how Caryn is "developing." Caryn
admitted she kept a journal but gave it to the neighbor. Caryn
also reported John hit Kristy and pulled out Josh's hair. Kristy
reported John hit her on the arm.
On September 26, 2013, Laura met privately with the Division's
domestic violence liaison. Laura complained John listens to her
phone calls, does not provide her enough money to pay the bills,
threatens her, and threatens to take Kristy to Honduras.
3 A-5099-15T3
On September 30, Laura called the Division because Josh kicked
Caryn and might have broken her finger. The Division helped Laura
access services for Josh. On October 2, 2013, Margaret DeLong,
Psy.D., conducted a psychological evaluation of Josh and
recommended he participate in individual counseling and have no
further contact with John.
On October 8, 2013, the landlord locked the family out of
their apartment and they had nowhere to go. When the Division
caseworker went to the family home, she found the family in their
car. The Division conducted an emergency removal and placed the
children with the maternal grandparents.
On October 11, 2013, the court placed the children in the
custody, care, and supervision of the Division. The court ordered
Laura to submit to a neuropsychological evaluation, parenting
classes, multicultural services, and family counseling. The court
also ordered psychological evaluations for Caryn and Kristy;
individual counseling and assignment of a mentor for Josh; and
ordered John to attend a psychological evaluation, counseling at
the Batters Intervention Program, and parenting classes.
Dr. DeLong evaluated Kristy and Caryn on October 23, 2013.
Caryn told Dr. DeLong she was "happy" to be away from John because
she "no longer ha[s] to suffer and see hitting and arguments."
She disclosed John used to rub her back and massage her and would
4 A-5099-15T3
try to touch her stomach but it made her uncomfortable. Caryn
reported she was comfortable seeing her mother about once a week.
When asked why only once a week, Caryn responded, "Any time she
would come to see me, she would always have a problem with things."
Dr. DeLong recommended Caryn participate in individual counseling,
recreational and therapeutic activities with peers, participate
in a mentoring program, and have supervised therapeutic visits
with her mother. She recommended Caryn have no further contact
with John.
Kristy told Dr. DeLong John hit her in the head, hits her
brother, and yells and curses at her siblings and mother. Kristy
reported she wants to live with her grandmother, but still wished
to visit John and Laura. Dr. DeLong recommended Kristy participate
in individual play therapy, recreational and/or therapeutic
activities with peers, a mentoring program, and have therapeutic
supervised visits with John and Laura.
John had supervised visitation with Kristy, but was denied
visits with the other children. Laura had weekly visits with all
three children.
In November 2013, Jonathan H. Mack, Psy.D., conducted a
neuropsychological and psychological evaluation of Laura. Dr.
Mack opined Laura "presents as having moderate neurocognitive
dysfunction with significant underlying brain damage." Dr. Mack
5 A-5099-15T3
diagnosed Laura with a mild intellectual disability, major
neurocognitive disorder due to multiple etiologies, and
personality change and/or development variant due to brain
injury/damage. Dr. Mack found Laura incapable of being a minimally
effective parent and to be effective, she would need to separate
from John and would need massive support. Dr. Mack recommended
ongoing psychiatric evaluations and treatment, psychological
therapy with a neuropsychologist, anger management and parenting
classes, and "in-home, ongoing and frequent parental supervision."
Around this time, Josh underwent a psychiatric evaluation
with Vivian Shnaidman, M.D. He told Dr. Shnaidman "all the
problems started" when John moved in with the family. Josh
reported he wants to live with his mother, "but . . . can't because
of [John]." Additionally, Josh reported John blames the children
for not being able to keep a job because "the kids annoy him and
he has to go to the kids' school." Dr. Shnaidman opined Josh was
"extremely hyperactive but not inattentive," and with "appropriate
treatment, including psychotherapy and possibly medication,"
Josh's prognosis was good. Dr. Shnaidman recommended Josh see a
board-certified child psychiatrist on a regular basis.
John underwent a psychological evaluation by Helen Raytek,
Psy.D., on December 2, 2013. Dr. Raytek recommended Laura and
John attend parenting skills training and family therapy, and the
6 A-5099-15T3
Division should not return the children to Laura and John's care
"unless they make significant progress in parent-training and
family therapy." Dr. Raytek recommended any steps toward
reunification must be slow and gradual.
Laura and John did not have a place to live and in January
2014, were still sleeping in their truck. On January 30, 2014,
John and Laura were finally placed in a shelter, but in May 2014,
Laura's application for housing through Middlesex Board of Social
Services was denied because John failed to complete WorkFirst. On
May 28, 2014, Laura told the caseworker she and John were homeless
again. The Division learned John's residency card would expire
on August 31, 2014, and John would not qualify to renew his visa
because of his arrest history. Laura and John's participation in
Division services deteriorated because of their homelessness.
John and Laura missed the January 23 and 30, 2014 visits.
John missed two batterer's counseling sessions. Catholic
Charities contacted the Division on February 6, 2014, reporting
John and Laura were on the wait list for supervised visitations.
Around this time, John obtained employment but eventually quit
while Laura continued to be unemployed.
The Title Nine fact-finding hearing took place on February
26, March 21, and May 2, 2014. The court found John failed "to
exercise a minimum degree of care and supervision by allowing the
7 A-5099-15T3
children to witness acts of domestic violence, berating the
children, [and] using excessive means of punishment on the
children." Laura was found to not have abused or neglected the
children. The court ordered the matter to remain open as a Title
30 matter in order for the Division to provide services to the
children and Laura.
On October 22, 2014, the court entered a permanency order
finding Laura and John had not complied or completed the court
ordered services and approved the placement of the children with
the grandmother under a plan of kinship legal guardianship.
However, on April 1, 2015, the children were removed from the
grandmother's home because the grandmother did not report Caryn
was cutting herself and did not disclose there were other
individuals residing in her home, among other concerns. The
children were subsequently placed in a resource home.
Laura and John missed scheduled visits in April and May 2015,
and cancelled their family counseling appointment. On May 21,
2015, Mark Mina, a Clinical Social Worker supervising the family's
counseling, wrote to the Division about the family's progress.
Mina reported Laura's insight and judgment as a parent were
impaired based upon her repeated requests to have the children
back despite being homeless and unemployed. Mina noted the
children appeared emotionally distant from their mother, and did
8 A-5099-15T3
not express any signs of excitement or happiness when they greet
her. Mina opined John needed to learn how to control his anger
and improve his communication skills. He found "the parents'
ability to care for their children is questionable."
In June 2015, the Division mailed rule out letters to three
maternal aunts. Laura informed the caseworker she and John were
still living out of their car.
Bonding evaluations of Laura and the three children were
conducted by Karen D. Wells, Psy.D., on June 30, 2015. Dr. Wells
reported it was clear to the children Laura had "substantially
failed to provide them with a safe environment and has not
prioritize[d] their well-being above her desire to remain in a
relationship that is recognized by them as abusive and
dysfunctional." Laura told Dr. Wells the children would be coming
back to her because she refused to sign anything relinquishing her
parental rights. Dr. Wells considered Caryn more cognitively
advanced than Laura and testified "the children seem to recognize
that [Laura] values the maintenance of her relationship with [John]
above all, including them being remitted in her care."
Dr. Wells found "little to no indication that a parent-child
bond exists between the children" and Laura. She found the
children did not view her as their primary psychological parent,
and concluded Laura is "unable to independently parent, as she
9 A-5099-15T3
requires guidance to attend to her own needs, lacks the capacity
for good reasoning and solid judgment, and is limited in her
capacity to appreciate the impact of her behaviors and choices to
herself and her children." As such, Dr. Wells recommended the
Division pursue permanency for the children independent of Laura.
Dr. Wells found the children would not suffer irreparable and
enduring psychological harm if not reunified with their mother.
Dr. Wells also conducted a bonding evaluation between John
and Kristy. While noting Kristy feels comfortable with John, Dr.
Wells found no secure bond as Kristy "knows that he is not her
primary custodial caregiver and has not attended to her basic
physical needs for close to two years." Kristy has a psychological
and emotional bond to John, but that bond was fluid and there was
no indication Kristy becomes distressed when separated from him.
Dr. Wells opined John "lack[s] an understanding and appreciation
of a child's development, with little leniency granted when a
child does not comply consistent with his expectations." Dr.
Wells concluded Kristy needed permanency independent of John and
placement with her maternal siblings was critical.
On August 25, 2015, Mina reported to the Division that
Kristy's emotional attachment towards John was improving through
participation in family counseling. Mina stated John was gaining
more control over his anger, but additional improvement was
10 A-5099-15T3
necessary. Mina noted Laura was still having trouble engaging
with the children, though she was more relaxed and willing to
communicate. He noted, however, the children expressed no signs
of excitement or happiness when they see their mother.
On August 31, 2015, the court approved the Division's
permanency plan for termination of parental rights followed by
adoption. On September 18, 2015, the children were placed in a
new resource home, where they remain. On December 16, 2015, the
Division filed a complaint for guardianship.
Dr. Wells conducted updated bonding evaluations on May 10,
2016, between the children and Laura, wherein each child expressed
an interest in being adopted by the resource parents. Dr. Wells
opined the children lack a significant bond with Laura and despite
the weekly contact, the bond had not improved. She found the
children did not relate to Laura as a maternal figure and do not
"initiate communication with her, seek her attention, approval or
comfort." Dr. Wells concluded none of the children would
"experience irreparable and enduring psychological harm" were all
contact with Laura permanently severed.
Dr. Wells thought the child-parent bond between the children
and the resource parents was "remarkable" after only nine months
of the children living with them and noted "[t]here is no question
that [the children] find their relationships to be highly valued
11 A-5099-15T3
and important." Dr. Wells concluded if the relationship between
the resource parents and the children were terminated, they would
experience "grave and severe enduring and irreparable
psychological and emotional harm."
Dr. Wells concluded Laura's "ability to function in an adult-
like manner is extremely deficient" and "any child placed in her
care would be susceptible to risk of harm, with such likelihood
increasing when stress is present." Because of Laura's cognitive
deficiencies and submissive behaviors, Dr. Wells found "[t]here
are no indications that [Laura] presently or will in the
foreseeable future, be able to provide even minimal parental care"
to her children. She concluded reuniting the children with Laura
would pose emotional and psychological harm.
Dr. Wells also conducted an updated bonding evaluation of
John and Kristy. Dr. Wells noted during their interaction, Kristy
did not seem interested in engaging with John. Dr. Wells opined
the parental relationship between John and Kristy is beginning to
wane since the first bonding evaluation nine months prior. Dr.
Wells found there to be no indication Kristy wants to be reunited
with John and has expressed her interest in being adopted by the
resource parents. According to Dr. Wells, John has not
demonstrated any progress to stabilize his life, despite the
services and support offered to him. Therefore, Dr. Wells
12 A-5099-15T3
concluded John "cannot provide adequate and appropriate parental
care and responsibility for" Kristy.
The guardianship trial occurred on June 14, and 15, 2016.
Two division caseworkers, Monica Gordon and Natasha Freeman, as
well as Dr. Wells, testified on behalf of the Division. John
testified on his own behalf, but no other party presented
additional evidence or witnesses. Gordon described the list of
services the Division provided Laura and John, including, domestic
violence counseling, referrals to the Batterer's Intervention
program, and parenting classes.
Freeman was the adoption caseworker since October 2015. She
testified Laura and John were still living in their car, John was
supposed to provide her paystubs from his employer to prove his
employment, and she did not believe Laura was working. Freeman
testified about the children's frustration with having visitation
and their desire to no longer have visits. As to her observations
of supervised visitations, she expressed while there had been some
positive interactions, both Laura and John did not seem engaged
in their visits. As for the services the Division provided,
Freeman testified Laura made some progress in the individual
neuropsychological counseling but was unable to apply what she
learned to real life scenarios and only secured a minimal benefit.
13 A-5099-15T3
Dr. Wells, who the judge found credible, testified both Laura
and John "lacked the capacity to be able to effectively parent."
Specifically, Dr. Wells testified that even if Laura and John were
able to find somewhere to live with the children, the concern is
"about their functioning and their capacity to meet the demands
. . . [of] parenting day to day." Noting a bond between Kristy
and John remained "intact," Dr. Wells testified the bond was waning
and even if their relationship were somehow able to improve, Kristy
would be negatively affected by her separation from her siblings
and her resource parents. In contrast to the children's bond with
John and Laura, the bond between the children and the resource
parents was "intact and secure."
John testified the Division never assisted them in securing
housing, despite being court ordered to do so. John stated he has
two different employment opportunities in both New Jersey and
Pennsylvania and each employer would allow him to rent an
apartment, as he would either be doing mechanic work for the one
and maintenance work for the other. When questioned in court,
John could not provide any specific information about either job.
Because the judge found the Division had established all four
prongs by clear and convincing evidence, the court ordered the
14 A-5099-15T3
termination of Laura and John's parental rights. A judgment of
guardianship was entered on July 8, 2016. These appeals followed.3
Our review of a trial judge's findings and decision to
terminate parental rights is limited. N.J. Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We will not reverse
the family court's termination decision "when there is substantial
credible evidence in the record to support the court's findings."
N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104
(2008).
We defer to the trial court's credibility findings and fact-
findings because of its expertise in family matters and its ability
to develop a "feel of the case that can never be realized by review
of the cold record." N.J. Div. of Youth & Family Servs. v. M.C.
III, 201 N.J. 328, 342-43 (2010) (citation omitted). We will not
disturb these findings unless they are "so wide of the mark that
the judge was clearly mistaken." N.J. Div. of Youth & Family
Servs. v. G.L., 191 N.J. 596, 605 (2007).
Parents have a constitutionally protected right to raise
their biological children, even if placed in foster care. In re
Guardianship of J.C., 129 N.J. 1, 9-10 (1992) (citing Santosky v.
Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).
3
On August 19, 2016, we entered an order consolidating both
appeals.
15 A-5099-15T3
The State may act to protect the welfare of the children, but this
is a limited authority, applying to circumstances where the parent
is unfit or the child has been harmed. Id. at 10; N.J.S.A. 30:4C-
12. To prevail in a proceeding to terminate parental rights, the
Division must establish each element of the "best interests 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.
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).]
These four prongs "relate to and overlap with one another to
provide a comprehensive standard that identifies a child's best
interests." In re Guardianship of K.H.O., 161 N.J. 352, 348
(1999). The State must prove each prong of this test by clear and
convincing evidence. N.J. Div. of Youth & Family Servs. v. A.W.,
16 A-5099-15T3
103 N.J. 591, 612 (1986). Courts may not use presumptions of
parental unfitness and any "doubts must be resolved against
termination of parental rights." K.H.O., supra, 161 N.J. at 347.
I.
Laura and John argue the Division did not establish by clear
and convincing evidence the children's health, safety, and
development was and continued to be endangered by the parental
relationship. We disagree.
The first prong of the best interests test requires the
Division to prove the child's safety, health, or development has
been or will continue to be endangered by the parental
relationship. N.J.S.A. 30:4C-15.1(a)(1). The focus of the first
prong is not necessarily upon a single incident, but on "the effect
of harms arising from the parent-child relationship over time on
the child's health and development." K.H.O., supra, 161 N.J. at
348. Additionally, the harm to the child need not be physical,
but can also include "[s]erious and lasting emotional or
psychological harm . . . as the result of the action or inaction
of their biological parents." In re Guardianship of K.L.F., 129
N.J. 32, 44 (1992) (citing In re Guardianship of J.C., 129 N.J.
1, 18 (1992)).
The inability of parents to provide day-to-day nurturing for
their child for a prolonged period of time is a harm which may
17 A-5099-15T3
satisfy the first prong of the best interests test. K.H.O., supra,
161 N.J. at 356 (citing A.W., supra, 103 N.J. at 604-611). We
have said, "When the condition or behavior of a parent causes a
risk of harm, such as impermanence of the child's home and living
conditions, and the parent is unwilling or incapable of obtaining
appropriate treatment for that condition, the first subpart of the
statute has been proven." N.J. Div. of Youth & Family Servs. v.
H.R., 431 N.J. Super. 212, 223 (App. Div. 2013). Additional
considerations include whether "the delay in securing permanency
continues or adds to the child's harm." K.H.O., supra, 161 N.J.
at 348-49 (citing N.J.S.A. 30:4C-15.1(a)(2)).
There is clear and convincing evidence in the record to
support finding Laura has been and continues to be unwilling to
eliminate the harm facing her children. The children were removed
from her care after reports of physical and emotional abuse by
John and reports the family was living in their car. She refused
to separate herself from John and did not show a willingness to
resolve the negative impact John has on the children's lives,
despite assuring the Division of her intentions to leave him at
the beginning of the investigation. The record establishes the
children were disinterested in their visits and Laura's cognitive
deficits hindered her ability to provide for the children's basic
needs. Despite the services provided by the Division, Laura
18 A-5099-15T3
remains unemployed and the record establishes she has not
benefitted from those services. Laura's reliance on John and her
unwillingness to obtain employment has and will continue to place
the children at risk of harm.
The Division also provided John with numerous services with
little effect. Dr. Wells found John blamed others for his own
problems and "lacked insight into his own behaviors." John was
found to have been abusive to all three children, but blamed Josh
for the Division being involved in their lives. All three children
reported John's verbal and physical abuse inside the home. The
evidence in the record clearly and convincingly establishes prong
one as to John.
Both John and Laura, over a three-year period, failed to
remediate their homelessness and unemployment. Despite the
services and assistance of the Division, Laura and John have
continued to place the children at risk of harm. We are therefore
satisfied the court correctly concluded the Division established
prong one by clear and convincing evidence.
II.
Laura and John argue the Division failed to establish prong
two as they both actively engaged in Division services. We reject
their premise.
19 A-5099-15T3
The second prong of the best interests test considers whether
"[t]he parent is unwilling or unable to eliminate the harm facing
the child or is unable or unwilling to provide a safe and stable
home for the child and the delay of permanent placement will add
to the harm." N.J.S.A. 30:4C-15.1(a)(2). This inquiry looks not
only to whether a parent is fit, but also to whether he or she can
become fit within time to perform parental functions. J.C., supra,
129 N.J. at 10. Notably, facts supporting the first prong of the
best interests test also inform and may support the second prong
"as part of the comprehensive basis for determining the best
interests of the child." In re Guardianship of D.M.H., 161 N.J.
365, 379 (1999).
The statute directs "[s]uch 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[.]" N.J.S.A. 30:4C-15.1(a)(2). Our courts recognize
"reunification becomes increasingly difficult with the passage of
time because a child may develop bonds with his or her foster
family and gain a sense of permanency." M.M., supra, 189 N.J. at
291. This is particularly true where biological parents are
inattentive to their children, thereby encouraging them to bond
with their foster families. K.H.O., supra, 161 N.J. at 352.
Comparative evaluations of a child's relationship with her or his
20 A-5099-15T3
foster parents and biological parents are generally necessary and
relevant to a proper analysis of both the second and fourth prongs
of the best interests test. N.J. Div. of Youth & Family Servs.
v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009). The record
is replete with efforts by the Division to assist both parents in
resolving their parental deficits.
Laura argues the record does not support the finding she is
cognitively deficient and cannot remediate the harm to her
children. She argues she has completed the tenth grade, has one
year left to complete her GED, has held employment in the past,
and has been able to care for her children since their birth
without incident. Laura states she completed all services and did
everything she could to obtain housing and employment. Despite
Laura's claims, the record supports a finding Laura has been
unwilling or unable to remediate the harm the children faced.
Laura was unwilling to look for employment, as she believed she
would obtain disability benefits, despite job opportunities being
available. Laura also could have obtained social services for
housing, but her application was denied because she wanted to live
with John, who failed to complete WorkFirst and whose visa was in
the process of being renewed. Laura's housing situation could
have been remediated if not for Laura's unwillingness to separate
herself from John.
21 A-5099-15T3
Most importantly, not only was Laura unwilling to separate
herself from John in order to obtain housing, she was unwilling
to end her relationship with John at the expense of her children.
If the children were returned to her care, she would be unable to
protect them from the harsh physical discipline John had previously
inflicted. Despite knowing her children did not want to have
contact with John, Laura continued the relationship.
John insisted his problems were caused by the children and
then perpetuated by the Division. John argues he actively engaged
in Division services and the Division did not demonstrate he had
limited cognitive functioning. Dr. Wells testified John viewed
others as the cause of his problems and therefore believed it was
the responsibility of others to fix those problems. Dr. Wells
opined John's cognitive functioning was low to below average and
no additional services could be provided to John to improve his
judgment.
Additionally, Dr. Wells testified Laura and John would be
unable to help the children cope with the loss of the resource
parents if the children were reunited with them. Dr. Wells
testified if the children were removed from the resource parents,
it would be "devastating" for the children. While a waning bond
still existed between Kristy and John, all three children needed
permanency and the record demonstrates that even with additional
22 A-5099-15T3
services, Laura and John will not be able to remediate the harm
to the children. There is more than enough evidence in the record
to support a finding under prong two.
III.
Laura argues she was provided with "boilerplate" Division
services, while John argues he was provided a case plan the
Division knew would be unsuccessful; therefore, the Division
failed to satisfy prong three. We disagree.
In order to satisfy the requirements of N.J.S.A. 30:4C-
15.1(a)(3), the Division must prove that it has undertaken
"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 considered alternatives to termination of
parental rights." Reasonable efforts include helping the parent
develop a plan for appropriate services; providing the agreed upon
services in furtherance of family reunification; periodically
informing the parent of the child's progress, development and
health; and facilitating appropriate visitation. N.J.S.A. 30:4C-
15.1(c).
What constitutes "reasonable efforts" depends on the
circumstances of the removal. N.J. Div. of Youth & Family Servs.
v. A.G., 344 N.J. Super. 418, 435 (App. Div. 2001), certif. denied,
171 N.J. 44 (2002). The failure or lack of success of such efforts
23 A-5099-15T3
does not foreclose a finding that the Division met its statutory
burden to try to reunify the child with the family. D.M.H., supra,
161 N.J. at 393. The Division need not continue services
indefinitely; even with reasonable efforts, the Division may not
be able to salvage a parental relationship. N.J. Div. of Youth &
Family Servs. v. F.M., 211 N.J. 420, 452 (2012).
Laura argues the Division did not provide her with
neuropsychological counseling until almost a year and a half after
it was initially recommended. That is true, but Dr. Wells
testified Laura would not have benefitted from such counselling
because Laura's cognitive functioning was too limited.
Laura argues the Division focused solely on her cognitive
limitations, ignoring the fact she completed all Division services
and said she would move away from John. The Division provided
Laura with psychological evaluations, psychiatric evaluations,
parenting training, counseling and support services, family and
individual counseling, domestic violence counseling, and
neuropsychological counseling. The Division also provided
transportation to the visitations, transportation to services,
assisted with Division of Development Disabilities (DDD) and
Division of Vocational Rehabilitation (DVR) applications, family
team meetings and case planning, and coordinated with social
24 A-5099-15T3
services agencies. The Division provided Laura and John with
services over a three-year period that were beyond "boilerplate."
While Laura did participate in Division services, the record
establishes Laura did not advance despite those services. She
remained homeless and unemployed, and was no closer to providing
her children with a safe and stable home than she was when the
children were removed. Despite Laura's claims she was willing to
move away from John, she continued to stay with him and wanted to
bring John to visits with Caryn and Josh. The Division made
reasonable efforts to provide Laura with services, ranging from
domestic violence classes to assisting in filling out DDD
applications, but ultimately, Laura was unwilling or unable to
apply what she had learned in counseling to real life situations.
John argues the Division focused the case plan only as to
Laura. John also argues the Division only assisted Laura with the
DDD and DVR applications. John was not eligible for DDD benefits
because he does not suffer from a mental disability, therefore the
Division could not have assisted him in filling out the
applications. In addition, John was not qualified for DVR benefits
because he did not complete WorkFirst and his visa was about to
expire. Therefore, the Division did not unfairly assist Laura
over John; John was not eligible for the same services. Besides
the assistance with the applications, John was provided with the
25 A-5099-15T3
same services as Laura. Therefore, the Division made reasonable
efforts in order to provide John with services.
The court considered alternatives to termination. The
Division attempted to find the suspected fathers of Caryn and
Josh, whose names were provided by Laura; however, the named
fathers were ruled out by a paternity test. Additionally, the
Division sent three rule out letters to three maternal aunts who
could not take the three children. As for the maternal
grandmother, the Division removed the children from her care after
it was discovered she was allowing two adult men to live in her
home and she did not report to the police a neighbor had
inappropriately touched Caryn or that Caryn was self-harming.
Despite Laura's arguments the Division should have provided the
maternal grandmother with more services, the record supports a
finding that the Division made reasonable efforts in seeking
alternatives to termination of Laura and John's parental rights.
As such, the Division established prong three by clear and
convincing evidence.
IV.
Finally, we reject Laura and John's argument termination of
parental rights will do more harm than good; therefore, the
Division has not established prong four.
26 A-5099-15T3
To satisfy the fourth prong, the Division must prove by clear
and convincing evidence that "[t]ermination of parental rights
will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The
court must determine "whether a child's interest will be best
served by completely terminating the child's relationship with
that parent." E.P., supra, 196 N.J. at 108. "The crux of the
fourth statutory subpart is the child's need for a permanent and
stable home, along with a defined parent-child relationship."
H.R., supra, 431 N.J. Super. at 226 (citation omitted). Where the
child is living with foster parents, the court balances the
relationship of the child with both the biological and foster
parents. K.H.O., supra, 161 N.J. at 355. The question is not
whether the child will suffer any harm; rather, the question is
whether "the child will suffer a greater harm from the termination
of ties with her natural parents than from the permanent disruption
of her relationship with her foster parents." Ibid. To answer
that question requires expert inquiry as to the strength of each
relationship. Ibid.
Dr. Wells' unrebutted opinion was the children do not view
Laura as a maternal figure, lacked a significant bond with her,
and the children did not seek her attention, approval or comfort.
Moreover, the children all verbalized a wish to be adopted by
their resource parents. Josh stated that he "never knew a mom and
27 A-5099-15T3
dad until [he] knew [the resource parents]." Dr. Wells concluded
there were "no indications that if all contact were to be
permanently severed, would any of the children experience
irreparable and enduring psychological harm."
Dr. Wells warned of harm that would occur to the children if
they were removed from their resource parents. Dr. Wells stated
the bond between the children and the resource parents after only
nine months was "remarkable," especially noting the behavioral and
emotional progress Josh has made since being in their care. Dr.
Wells testified if Josh were removed from the resource parents,
she feared his behavior would regress and he would begin to exhibit
the same aggressive behavior he exhibited while living with John
and Laura. Dr. Wells found the resource parents would be able to
remedy any harm caused by the termination of Laura and John's
parental rights and concluded if the children were removed from
the resource parents they would experience "grave and severe
enduring and irreparable psychological and emotional harm."
The bond between John and Kristy was thought to be waning and
there was no indication Kristy wanted to be reunited with John,
and she too expressed a significant interest in being adopted by
the resource parents. Dr. Wells concluded John was unable to
provide for Kristy's needs in the long term. Dr. Wells testified
Kristy was relieved at the end of the evaluation because she
28 A-5099-15T3
believed it was the last time she would have to see her biological
parents. Therefore, if the bond between John and Kristy were to
be severed it would not do more harm than good. Based on all of
the evidence in the record, the trial court correctly found the
Division satisfied its burden under prong four. We discern no
reason to disturb that determination.
Affirmed.
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