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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0446-17T4
A-0449-17T4
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
D.H. and N.T.,
Defendants-Appellants.
_______________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF C.H., N.H., and A.H., Minors.
_______________________________________
Submitted October 11, 2018 – Decided October 22, 2018
Before Judges Accurso, Vernoia and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FG-13-0092-16.
Joseph E. Krakora, Public Defender, attorney for
appellant D.H. (Eric R. Foley, Designated Counsel, on
the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant N.T. (Kisha M. Hebbon, Designated Counsel,
on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Joshua P. Bohn, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Nancy P. Fratz, Assistant Deputy
Public Defender, on the brief).
PER CURIAM
In these appeals, which have been consolidated for this opinion,
defendants N.T. (Nancy) 1 and D.H. (Derek) appeal from a Family Part order
terminating their parental rights to their biological children, four-year-old A.H.
(Abby), three-year-old N.H. (Norman), and one-year-old C.H. (Cory). Because
we agree with the New Jersey Division of Child Protection and Permanency, as
well as the Law Guardian, that there is substantial credible evidence supporting
the court's determination that termination of defendants' parental rights is in the
children's best interests, we affirm.
The evidence at the guardianship trial showed that the Division first
became involved with defendants in December 2013 based on a referral that
1
We employ initials and pseudonyms to protect the privacy of the children and
for ease of reference.
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2
Derek and Nancy, who was pregnant, were at a soup kitchen and appeared
homeless and in need of services. Six months later, the Division received a
second referral that Derek, Nancy and Abby were being evicted from their home
and had no place to live.
In September 2014, the Division received a third referral concerning
Nancy and Abby's living conditions, a lack of food and Nancy leaving Abby in
the care of Nancy's cousin, who had a history of substance abuse and an open
case with the Division. At that time, Nancy denied recent drug use but agreed
to a substance abuse evaluation because she wanted to avoid a relapse. Derek
refused to provide his home address and admitted using marijuana to ease his
anxiety and depression. It was recommended that defendants undergo substance
abuse and psychological evaluations.
A December 2014 forensic assessment determined Nancy is a "a low
functioning adult" and recommended that she undergo cognitive testing, a
psychiatric evaluation, parenting skills services and psychotherapy. The
Division also received a referral from a hospital that Abby smelled like cigarette
smoke when Nancy appeared and sought prenatal care because she was pregnant
with Norman, who was due the following month. The Division further received
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3
a referral that two men were observed smoking marijuana while Abby was in
their care and Nancy was not present.
On December 19, 2014, the Division filed a verified complaint seeking
the care and supervision of Abby due to Nancy's cognitive limitations and
concomitant inability to supervise, protect and plan for Abby, and Derek's
substance abuse and failure to comply with services. The court entered an order
granting the Division care and custody of Abby.
The court granted the Division's emergency removal of Norman
immediately following his birth in January 2015. The Division placed Norman
in the same resource home as Abby. Twenty-two months later, Cory was born.
The court granted care and custody of Cory to the Division, which placed the
child in the same resource home as his siblings.
During the guardianship trial, the Division presented the testimony of the
two caseworkers and Dr. Elise Landry, who was qualified as an expert in
psychology, child rearing, child abuse and neglect, and parenting competency.
Dr. Landry conducted psychological and bonding evaluations of Nancy and
Derek and a bonding evaluation of the children's resource mother.
Nancy presented the testimony of Dr. Andrew Brown, who was qualified
as an expert in psychology with a specialty in neuropsychology. Dr. Brown
A-0446-17T4
4
conducted a psychological and neuropsychological evaluation of Nancy. Derek
did not present any witnesses.
In his oral opinion following the presentation of evidence, Judge Terence
P. Flynn made detailed factual findings, addressed each element of the best-
interests-of-the-child standard set forth in N.J.S.A. 30:4C-15.1(a) and concluded
the Division sustained its burden of proving by clear and convincing evidence it
was in the children's best interests to terminate Nancy and Derek's parental
rights. He entered a September 8, 2017 judgment of guardianship terminating
defendants' parental rights to their three children. This appeal followed.
Nancy offers the following arguments for our consideration:
POINT I
THE TRIAL COURT ERRED IN FINDING THAT
THE BEST INTERESTS TEST OUTLINED IN
N.J.S.A. 30:4C-15.1[(a)] WAS PROVEN BY CLEAR
AND CONVINCING EVIDENCE.
A. Introduction.
B. There Was No Clear and Convincing Evidence To
Support the Finding That C.H., N.H., and A.H.'s Safety,
Health, Or Development Has Been Or Will Continue
To Be Endangered By The Parental Relationship.
C. There Was No Clear and Convincing Evidence To
Support The Finding That [Nancy] Is Unwilling Or
Unable To Eliminate The Harm Facing C.H., N.H., And
A-0446-17T4
5
A.H. Or Is Unable To Provide A Safe And Stable Home
For C.H., N.H., And A.H.
D. There Was No Clear And Convincing Evidence To
Support The Finding That [The Division] Made
Reasonable Efforts To Provide Services To Help
[Nancy] Correct The Circumstances Which Led To
C.H., N.H. And A.H.'s Placement Outside Of The
Home.
E. There Was No Clear and Convincing Evidence To
Support The Finding That Termination Of [Nancy's]
Parental Rights Would Not Cause More Harm Than
Good.
Derek makes the following arguments:
POINT I
THE JUDGMENT OF GUARDIANSHIP SHOULD
BE REVERSED BECAUSE [THE DIVISION]
FAILED TO PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT IT PROVIDED
REASONABLE EFFORTS TOWARDS
REUNIFICATION.
POINT II
[THE DIVISION] FAILED TO PROVE BY CLEAR
AND CONVINCING EVIDENCE THAT
TERMINATION OF PARENTAL RIGHTS WILL
NOT DO MORE HARM THAN GOOD.
Our review of a trial court order terminating parental rights is limited.
N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "A
Family Part's decision to terminate parental rights will not be disturbed when
A-0446-17T4
6
there is substantial credible evidence in the record to support the court's
findings." N.J. Div. of Child Prot. & Permanency v. K.T.D., 439 N.J. Super.
363, 368 (App. Div. 2015) (citing N.J. Div. of Youth & Family Servs. v. F.M.,
211 N.J. 420, 448 (2012)). "We accord deference to factfindings of the family
court because it has the superior ability to gauge the credibility of the witnesses
who testify before it and because it possesses special expertise in matters related
to the family." F.M., 211 N.J. at 448 (citing Cesare v. Cesare, 154 N.J. 394, 413
(1998)). This enhanced deference is particularly appropriate where the court's
findings are founded upon the credibility of the witnesses' testimony. N.J. Div.
of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005)
(citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484
(1974)).
"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." N.J. Div. of Youth & Family Servs.
v. E.P., 196 N.J. 88, 104 (2008) (quoting G.L., 191 N.J. at 605). No deference
is given to the trial court's "interpretation of the law," which we review de novo.
D.W. v. R.W., 212 N.J. 232, 245-46 (2012).
A-0446-17T4
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A parent has a constitutionally protected right "to enjoy a relationship with
his or her child." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). That
right, however, "is not absolute" and is limited "by the State's parens patriae
responsibility to protect children whose vulnerable lives or psychological well-
being may have been harmed or may be seriously endangered by a neglectful or
abusive parent." F.M., 211 N.J. at 447 (citing E.P., 196 N.J. at 102). A parent's
interest must, at times, yield to the State's obligation to protect children from
harm. See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397
(2009).
When terminating parental rights, the court must consider the "best
interests of the child." K.H.O., 161 N.J. at 347. The Division's petition to
terminate parental rights may only be granted if the following four prongs
enumerated in N.J.S.A. 30:4C-15.1(a) are established by clear and convincing
evidence:
(1) The child's safety, health, or development has
been or will continue to be endangered by the parental
relationship;
(2) The parent is unwilling or unable to eliminate the
harm facing the child or is unable or unwilling to
provide a safe and stable home for the child and the
delay of permanent placement will add to the harm.
Such harm may include evidence that separating the
child from his resource family parents would cause
A-0446-17T4
8
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).]
"The four criteria enumerated in the best interests standard are not discrete and
separate; they relate to and overlap with one another to provide a comprehensive
standard that identifies a child's best interests." K.H.O., 161 N.J. at 348. "[T]he
cornerstone of the inquiry [under N.J.S.A. 30:4C-15.1(a)] is not whether the
biological parents are fit but whether they can cease causing their child harm."
In re Guardianship of J.C., 129 N.J. 1, 10 (1992) (citing N.J. Div. of Youth &
Family Servs. v. A.W., 103 N.J. 591, 607 (1986)).
Nancy argues the court erred by finding the Division presented clear and
convincing evidence as to each prong of the best-interests standard. We
disagree. Judge Flynn conducted the required fact-sensitive analysis of the
statutory factors. See K.H.O., 161 N.J. at 348. The record supports his
determination that although Nancy's limited level of cognitive functioning alone
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does not render her unable to care for her children, the children's safety, health
and development are endangered by the parental relationship with Nancy
because she has "the functioning capability . . . of a second grader," a lack of
support from a partner, inadequate financial resources and housing, untreated
mental health issues, three children to care for and a demonstrated reluctance to
take advantage of various services offered by the Division. The court accepted
Dr. Landry's testimony, found Dr. Brown's testimony was not credible, and
determined Nancy lacked the ability to address the numerous issues that
rendered her unable to safely parent her children, and that termination of Nancy's
parental rights would not do more harm than good to the children. We defer to
Judge Flynn's detailed findings because they are supported by substantial
credible evidence. See K.T.D., 439 N.J. Super. at 368.
Derek argues there is insufficient evidence supporting the court's findings
on the third and fourth prongs of the best interests standard. We are not
persuaded. Judge Flynn's finding that the Division provided Derek with
numerous and ongoing services to ameliorate the mental health, substance
abuse, housing and lack of parenting skills issues that rendered him unable to
safely parent the children is supported by substantial credible evidence. See
F.M., 211 N.J. at 448. Similarly, Judge Flynn's conclusion that termination of
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Derek's parental rights will not do more harm than good is supported by Dr.
Landry's testimony that there is a minimal parental bond between Derek and the
children, a strong bond between the children and their long-time resource mother
and the children will suffer lasting harm if they are removed from the resource
mother's care, but will not suffer any harm by the termination of Derek's parental
rights.
We therefore affirm substantially for the reasons set forth in Judge Flynn's
comprehensive and well-reasoned oral decision.
Affirmed.
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