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NOT FOR PUBLICATION WITHOUT THE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-4590-18T1
A-4591-18T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
A.T. and A.M., SR.,
Defendants-Appellants.
________________________
IN THE MATTER OF THE
GUARDIANSHIP OF A.M.,
JR., and A.R.M.,
Minors.
________________________
Submitted May 6, 2020 – Decided June 5, 2020
Before Judges Koblitz, Whipple and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FG-08-0019-19.
Joseph E. Krakora, Public Defender, attorney for
appellant A.T. (Robyn A. Veasey, Deputy Public
Defender, of counsel; Catherine F. Reid, Designated
Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for
appellant A.M., SR. (Robyn A. Veasey, Deputy Public
Defender, of counsel; Meghan K. Gulczynski,
Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Amy Melissa Young, Deputy
Attorney General, on the brief).
Joseph Krakora, Public Defender, Law Guardian,
attorney for minor G.D. (Meredith Alexis Pollock,
Deputy Public Defender, of counsel; Todd S. Wilson,
Designated Counsel, on the brief).
PER CURIAM
In this consolidated matter, defendants A.T. 1 (Amelia) and A.M., Sr.
(Avery, Sr.) appeal from the June 18, 2019 judgment terminating their parental
rights to their biological children, A.M., Jr. (Avery, Jr.), born in January 2012
and A.R.M. (Alex), born in December 2016. The Division of Child Protection
and Permanency (Division) first became involved with the family in July 2016.
The children were removed from the defendants' care about a year later. After
1
We use initials and pseudonyms to preserve the privacy of the parties. R.
1:38-3(d)(12).
A-4590-18T1
2
three years of unresolved substance abuse, mental health, employment, and
housing issues, the court found that the Division proved that termination of
parental rights was in the best interests of the children. The Law Guardian urges
affirmance, and after a thorough review of the facts in light of the pertinent law,
we affirm.
I. Factual Background.
The evidence presented at trial revealed the following facts. The Division
first became involved with defendants in July 2016 when it received an
anonymous referral that a pregnant Amelia was "snorting Percocet pills that
were obtained illegally." During the Division's July 18, 2016 interview of
defendants at their home, which they shared with their then four-year-old son,
Avery, Jr. and Amelia's mother, G.M.T. (Gina), Avery, Sr. revealed he had been
prescribed Percocet. Gina, who, according to the Division, was "very coherent"
despite her schizophrenia, denied having any concerns about defendants '
parenting. Amelia was told to complete a urine screen.
Later that day, Amelia called the Division and admitted she was abusing
Percocet and needed help. Amelia tested positive for opiates. A safety
protection plan (SPP) was implemented for a month, during which Avery, Sr.
A-4590-18T1
3
was approved to supervise Amelia with Avery, Jr. The Center for Family
Services (CFS) recommended an intensive out-patient program (IOP).
Amelia began her IOP in September 2016, but after attending two group
sessions, she did not return to treatment and was officially discharged from the
program in November. She agreed to random drug testing the following month
but failed to comply.
After his birth the following month, Alex tested positive for oxycodone
and suffered withdrawal symptoms. Alex was discharged to his parents at the
beginning of January 2017, with an SPP again in place requiring that Amelia's
contact with her children be supervised by Avery, Sr. or her grandmother,
G.A.T. (Gail). The SPP was lifted later in the month.
Two months later, the court granted Gail joint custody of both children
and designated her as the parent of primary residence. Amelia and Avery, Sr.
had been living with his mother, L.W. (Lisa). Defendants were granted "open
and liberal parenting time as agreed." This order was modified at the beginning
of May 2017 to forbid Amelia from exercising unsupervised time with the
children if she had used drugs within twenty-four hours of the visit.
The following month, the Division received another referral alleging that
Avery, Sr. was abusing heroin and morphine. He claimed he was only taking
A-4590-18T1
4
his prescribed oxycodone as directed. At this time, Avery, Sr. was living with
Lisa, while Amelia and the children lived with Gail.
At the end of June 2017, the Division received its next referral from the
Monroe Township police, reporting that Amelia overdosed on heroin in th e
presence of then six-month-old Alex while she was at Lisa's house. The police
reported that "[f]ive full bags of heroin, paraphernalia/contraband and several
prescription[] bottles with [Gail's] name," were found in the room. Although
Gail denied that Amelia took Gail's medication, she noted her pills
"occasionally" went missing. Thirty-two pills were missing from Gail's
oxycodone prescription bottle. A Dodd removal2 of Avery, Jr. from Gail's home
was facilitated.
Later, Amelia, Avery, Sr. and Alex were found on the street by a police
officer. The Division worker went to the scene and observed that defendants
appeared to be "under the influence." Avery, Sr. was "falling/rocking into the
stroller where [Alex] [was] located." When the Division confronted Amelia
about her overdose that morning, she denied the allegation and stated nothing
2
A "Dodd removal" is the emergency removal of a child from a home without
a court order, pursuant to the Dodd Act, N.J.S.A. 9.6-8.21 to -8.82.
A-4590-18T1
5
happened. Alex was also emergently removed due to defendants' "substance use
and their inability to keep him safe while in their care."
The police reported that later that day, Avery, Sr. was arrested for being
under the influence and drugs were found on him. Two days later, the Division
obtained custody of both boys and defendants were allowed Division-supervised
visits only.
The following month, Amelia admitted to using heroin and stealing Gail's
pills. Avery, Sr. continued to deny any substance abuse and stated he was not
under the influence. Defendants refused to submit to numerous unscheduled
drug tests.
Psychologist Dr. Janet Cahill, Ph.D., concluded that Gail "had significant
deficits in cognition, memory and adaptive skills and was not able [to] safely
parent [Avery, Jr.] and [Alex] on her own." Dr. Cahill noted that because
Amelia admitted to substance abuse and tested positive for benzodiazepines and
opioids, her visitation with the children should remain supervised and she should
continue to comply with random drug testing and enter a detox progr am. As to
Avery, Sr., Dr. Cahill found him to be "very guarded and defensive," noting that
he refused to cooperate with random drug testing. She suggested that in addition
to supervised visitations and compliance with random drug tests, "he should be
A-4590-18T1
6
referred for short term motivational interviewing to attempt to improve his
insight and willingness to sincerely engage in other services."
In October 2017 Amelia again tested positive for benzodiazepines and
opioids, as well as Suboxone. Avery, Sr. "nodded off" several times during his
drug evaluation and tested positive for heroin and marijuana. A short-term
"clinically managed high-intensity residential" treatment program was
recommended for both Amelia and Avery, Sr.
A fact-finding hearing was held on November 15, 2017, where the court
heard testimony from two Division caseworkers and found the Division had not
demonstrated that defendants abused or neglected their children but were "part
of a family in need of services." The court continued to order defendants and
Gail to comply with evaluations and submit to random drug and hair follicle
testing. Defendants were allowed weekly supervised visits with their children.
In December 2017, Amelia revealed to the Division that she and Avery, Sr.
separated because "if they stayed together each one would probably still do
drugs."
Avery, Sr. entered a substance abuse program in December 2017, but was
discharged six days later. In January 2018, Amelia was admitted into a detox
program. Upon her completion, she entered into an IOP.
A-4590-18T1
7
Defendants again missed several unscheduled substance abuse
evaluations, but when they did attend, they often tested positive for various
drugs. Defendants also had difficulty complying with their drug rehabilitation
programs.
In April 2019, Dr. Melanie A. Freedman, Ph.D., performed psychological
and bonding evaluations of defendants with their children. As to Amelia, Dr.
Freedman noted that "there is some attachment between [Amelia] and [Avery,
Jr.], [but] some parenting-related risks still remain, such as a high relapse
potential and lack of stable housing." Similarly, Dr. Freedman found that
although Avery, Sr. clearly loved his children, "his poor insight regarding his
need for any services and his past problems with compliance, including his
recent failure to undergo drug testing when explicitly requested to do so, suggest
a poor prognosis for reunification." Dr. Freedman supported termination of
parental rights.
Defense psychologist Dr. Andrew P. Brown III, Ph.D. found that Avery,
Sr. had "significant issues revolving around lack of stability, support and
narcotic use," therefore failing to "demonstrate readiness to be a minimally
adequate parent/caregiver to his children." He opined, however, that despite
Avery, Jr.'s "secure attachment to the resource parents, [because] [Avery, Sr.]
A-4590-18T1
8
has remained as the central figure of emotional attachment in [his] life. . . .
[t]ermination of parental rights followed by severed contact will do more
psychological harm than good." Dr. Brown suggested the court "consider an
alternative arrangement to termination of parental rights that would insure
[Avery, Jr.] the freedom and capacity to continue contact with his natural
father." Dr. Brown did not suggest a practical alternative to termination, given
that New Jersey does not recognize open adoptions, where biological parents
retain visitation rights after adoption. In re Adoption of a Child by W.P., 163
N.J. 158, 172 (2000). Defendants did not testify.
Amelia presents the following arguments on appeal:
POINT I: DEPRIVATION OF A FUNDAMENTAL
CONSTITUTIONAL RIGHT SHOULD NOT BE
AFFIRMED WHERE THE FAMILY PART OPINION
IS AMBIGUOUS AND INCOMPLETE, FAILING TO
COMPLY WITH R. 1:7-4; AND WHERE THE JUDGE
CONDUCTED THE PROCEEDINGS IN A MANNER
THAT VIOLATED THE PARENTS' DUE PROCESS
RIGHTS.
A. THE FAMILY PART FAILED TO MAKE
CLEAR FINDINGS OF FACT ON CRITICAL ISSUES
AND FAILED TO CORRELATE ITS FINDINGS OF
FACT TO THE NECESSARY LEGAL
CONCLUSIONS AS TO THE FOURTH PRONG OF
N.J.S.A. 30:4C-15.1A.
B. THE FAMILY PART FAILED TO MAKE ANY
LEGAL CONCLUSIONS AT ALL AS TO EITHER
A-4590-18T1
9
PART OF THE THIRD PRONG OF N.J.S.A. 30:4C-
15.1A.
C. THE FAMILY PART CONDUCTED THE
PROCEEDINGS IN SUCH A WAY THAT THE
PARENTS WERE DENIED DUE PROCESS.
POINT II: THE TRIAL COURT'S LEGAL
CONCLUSIONS AS TO N.J.S.A. 30:4C-15 WERE
NOT SUPPORTED BY SUFFICIENT, COMPETENT
EVIDENCE.
A. THE "FACTS" FOUND BY THE TRIAL
COURT TO SUPPORT ITS LEGAL CONCLUSIONS
AS TO THE FIRST PRONG OF N.J.S.A. 30:4C-15.1A
WERE LARGELY BASED ON HEARSAY.
B. EVEN IF THE EVIDENCE ON WHICH THE
JUDGE RELIED TO FIND THE FIRST PRONG
SATISFIED HAD BEEN COMPETENT, IT DID NOT
DEMONSTRATE PHYSICAL, EMOTIONAL OR
PSYCHOLOGICAL HARM TO THE CHILDREN.
NOR WAS THERE CLEAR AND CONVINCING
EVIDENCE IN THE RECORD THAT THE
CHILDREN WERE HARMED BY THEIR STAY IN
FOSTER CARE.
C. THE TRIAL COURT ERRED IN CONCLUDING
THAT THE SECOND PRONG OF N.J.S.A. 30:4C-
15.1A WAS SATISFIED AT A CLEAR AND
CONVINCING LEVEL OF PROOF WHERE THE
RECORD SHOWED THAT A.T. COULD CEASE
HARMING THE CHILDREN AND IT WAS
REASONABLY FORESEEABLE SHE WOULD BE
ABLE TO PARENT THEM IN THE FUTURE.
D. THE JUDGMENT CANNOT BE AFFIRMED
BECAUSE THE FAMILY PART OMITTED THE
A-4590-18T1
10
REQUIRED CONSIDERATION OF
ALTERNATIVES TO TERMINATION, AND DCPP
DID NOT PRESENT A RECORD ON WHICH THE
OMITTED LEGAL CONCLUSION COULD BE
COMPETENTLY BASED.
E. THE TRIAL COURT ERRED IN CONCLUDING
THAT THE FOURTH PRONG OF N.J.S.A. 30:4C-
15.1A WAS SATISFIED AT A CLEAR AND
CONVINCING LEVEL OF PROOF WHERE THE
RECORD DID NOT CONTAIN COMPETENT
EVIDENCE THAT TERMINATION OF PARENTAL
RIGHTS WOULD RESULT IN A PERMANENT
HOME FOR THE BOYS AND THE BONDING
EVIDENCE WAS MIXED AND AMBIGUOUS.
Avery, Sr., presents the following arguments on appeal:
POINT I: THE COURT ERRED WHEN IT RELIED
UPON HEARSAY EVIDENCE TO CONCLUDE THE
FATHER HARMED HIS CHILDREN.
POINT II: THE COURT MISSTATED THE
EVIDENCE AND ERRED IN FINDING THE
FATHER DID NOT MAKE EFFORTS TO ADDRESS
HIS SUBSTANCE USE DISORDER.
POINT III: THE TRIAL COURT FAILED TO MAKE
ADEQUATE FINDINGS OF FACT AND
CONCLUSIONS OF LAW IN ITS DECISION AS TO
PRONG THREE OF THE BEST INTEREST TEST
UNDER N.J.S.A. 30:4C-15.1A(3).
POINT IV: DCPP FAILED TO DEMONSTRATE BY
CLEAR AND CONVINCING EVIDENCE THAT
TERMINATION OF PARENTAL RIGHTS WILL
NOT DO MORE HARM THAN GOOD AND THE
COURT FAILED TO ACCURATELY ARTICULATE
A-4590-18T1
11
PRONG FOUR AND CONSIDER IT IN LIGHT OF
THE FATHER'S STRONG BOND WITH HIS SON,
BUT INSTEAD RELIED UPON DCPP'S EXPERT
WHO DEMONSTRATED A BIAS WHEN SHE
REFUSED TO RELY UPON EMPIRICAL
EVIDENCE.
II. Our Standard of Review.
Our review of a judgment terminating parental rights is limited. N.J. Div.
of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). We must determine
whether the decision is "supported by 'substantial and credible evidence' on the
record." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012)
(quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).
We defer to the family court's factual findings, because that court "has the
superior ability to gauge the credibility of the witnesses . . . and because it
possesses special expertise in matters related to the family." Ibid. Ultimately,
a family court's decision should not be overturned unless it went "so 'wide of the
mark'" that reversal is needed "to correct an injustice." Ibid. (quoting N.J. Div.
of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). The court's
interpretation of the law or its legal conclusions are reviewed de novo. State ex
rel. A.B., 219 N.J. 542, 554-55 (2014); Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995).
A-4590-18T1
12
Parents have a constitutionally protected right to the care, custody, and
control of their children. F.M., 211 N.J. at 447. That right, however, is not
absolute. Ibid. At times, a parent's interests must yield to the State's obligation
to protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M., 198
N.J. 382, 397 (2009). "Children must not languish indefinitely in foster care
while a birth parent attempts to correct the conditions that resulted in an out -of-
home placement." N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super.
201, 209 (App. Div. 2007).
To address such concerns, the Legislature created the best interests test
for determining whether a parent's rights must be terminated. N.J.S.A. 30:4C-
15.1(a) requires that the Division prove all four prongs by clear and convincing
evidence. N.J. Div. of Child Prot. & Permanency v. T.D., 454 N.J. Super. 353,
378 (App. Div. 2018). The four prongs are not independent of one another. Id.
at 379. Rather, they "are interrelated and overlapping" and "designed to identify
and assess what may be necessary to promote and protect the best interests of
the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88
(App. Div. 2006).
A-4590-18T1
13
III. Prong One.
To satisfy the first prong of the best interests test, the Division must prove
by clear and convicting evidence that "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).
A. Hearsay Evidence.
Both parents object to the hearsay nature of some of the evidence. "[A]
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted," is
inadmissible, unless an exception applies. N.J.R.E. 801(c); N.J.R.E. 803.
Division reports are generally admissible under the N.J.R.E. 803(c)(6)
business record exception to hearsay. N.J. Div. of Child Prot. & Permanency v.
N.T., 445 N.J. Super. 478, 495 (App. Div. 2016). Because "requiring all
[Division] personnel having contact with a particular case to give live testimony
on all the matters within their personal knowledge would cause an intolerable
disruption . . . . it becomes necessary to allow certain evidence to be produced
in a hearsay form." Id. at 496 (alteration in original) (quoting In re Guardianship
of Cope, 106 N.J. Super. 336, 343 (App. Div. 1969)). Therefore, statements to
the report's author "by Division 'staff personnel (or affiliated medical,
A-4590-18T1
14
psychiatric, or psychological consultants), [made based on] their own first-hand
knowledge of the case, at a time reasonably contemporaneous with the facts they
relate, and in the usual course of their duties with the' Division" are
admissible. Ibid. (alteration in original) (quoting Cope, 106 N.J. at 343).
However, "written reports from neighbors, the police or other persons," are
governed by the usual hearsay rules. Ibid. (quoting Cope, 106 N.J. at
344). "[E]ven if a document 'is admissible as a record of regularly conducted
activity,' statements by others reported by the author of the document 'are
"hearsay-within-hearsay," each level of which . . . requires a separate basis for
admission into evidence.'" Id. at 497 (quoting Estate of Hanges v. Metro. Prop.
& Cas. Ins. Co., 202 N.J. 369, 375 n. 1 (2010)).
Amelia argues that, in rendering its decision under prong one, the court
relied primarily on hearsay in the Division's records. Reports and testimony
from the doctor who conducted the psychological evaluation are permissible
forms of hearsay under the business records exception. Dr. Freedman testified
that Amelia "acknowledge[d] at the time that seven-month-old [Alex] was in the
room with her when [her overdose] occurred."
Avery, Sr. asserts that the information from his June 2017 arrest contained
in the Division's report was inadmissible hearsay because neither the reporting
A-4590-18T1
15
officer testified nor was a police report from the incident admitted into evidence.
Because neither defendant objected to the arrest testimony, Avery, Sr.'s
argument must be reviewed for plain error. R. 2:10-2. He carries the burden of
demonstrating that this error was "of such a nature as to have been clearly
capable of producing an unjust result," and therefore, should not be disregarded
by this court. Ibid. Had an objection been made, the Division could easily have
obtained and introduced the police reports.
The decision to terminate parental rights focuses on "the effect of harms
arising from the parent-child relationship over time on the child's health and
development." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Avery
Sr.'s repeated failure to comply with his evaluations and rehabilitative programs
was discussed at length by the court. Avery, Sr.'s substance abuse history and
the recommendations of Dr. Cahill and Dr. Brown supported the conclusion that
prong one was satisfied.
B. Evidence of Drug Use.
Amelia argues that the Division did not establish that the children were
harmed by her overdose and their subsequent removal. The Division must
establish under the first prong "that the health, safety, and development of a
child has been or would continue to be endangered if a relationship with the
A-4590-18T1
16
parents were allowed to continue." T.D., 454 N.J. Super. at 380. "[A] parent's
inability to provide care is harmful and can endanger the health of a child." Ibid.
The "best interests standard does not concentrate on a single or isolated harm or
past harm as such. Although a particularly egregious single harm can trigger
the standard, 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.
Drug use during pregnancy constitutes harm to the child "when that drug
use results in the child being born addicted to drugs with the attendant suffering
caused by such addiction." Id. at 349-50. Our Supreme Court has stated that
"the attention and concern of a caring family is 'the most precious of all
resources.'" In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (quoting
N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 613 (1986)). "A
parent's withdrawal of that solicitude, nurture, and care for an extended period
of time is in itself a harm that endangers the health and development of the
child." Ibid.
Alex suffered withdrawal symptoms at birth as a result of Amelia using
drugs while pregnant. Amelia admitted during her psychological evaluation
with Dr. Freedman that she used heroin on the night in question and was
A-4590-18T1
17
awakened by paramedics. Amelia classified it as a "suspected overdose"
because Narcan was not used, however, she was found unconscious, pale and
with blue lips. Evidence that she overdosed when caring for her infant son is
supported by substantial credible evidence in the record.
Amelia's drug use caused the removal of her children. Both parents
continued to use drugs despite the Division's attempts to help. The court
properly found that the Division proved by clear and convincing evidence that
the children's "safety, health or development has been or will continue to be
endangered by the parental relationship."
IV. Prong Two.
The second prong under N.J.S.A. 30:4C-15.1(a)(2) requires the court to
determine 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." The court
"is permitted to consider whether the parents would correct their conduct within
the reasonably foreseeable future." T.D., 454 N.J. Super. at 380.
A. Amelia.
Amelia asserts that the court improperly relied on the fact that she was in
the early stages of recovery and acknowledged that "she still had work to do
A-4590-18T1
18
before she could independently parent her children." Amelia notes that she has
not used substances since February 2019 and, pending the Division's inspection,
secured a home for her sons. Amelia argues that the record supports a finding
that she "had progressed in her rehabilitation to the point that she was 'able to
remove the danger' facing her children."
The record, however, does not demonstrate that she will be able to parent
the children in the foreseeable future. Although Amelia made more progress
than Avery, Sr., she acknowledges that she is not yet able to care for her
children.
B. Avery, Sr.
Based upon the Division's reports and the expert testimony, overwhelming
evidence was presented to establish Avery, Sr.'s continued substance abuse
would be harmful to the children. Avery, Sr. stresses that he participated in
detox programs prior to the start of the guardianship litigation, between
November and December 2017.
He tested positive for fentanyl in April 2019. The Division's June 2019
substance abuse evaluation reported that he tested positive for fentanyl on the
following dates: November 20, 23; December 14 and 24, 2018, and April 23,
2019. Avery, Sr. was clearly not able to remediate his drug use. The history of
A-4590-18T1
19
failed drug tests and substance abuse treatment programs shows that Amelia and
Avery, Sr. have been unwilling or unable to eliminate the harm facing their
children or to provide a safe home.
V. Prong Three.
The Division must prove under prong three that "[t]he [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." N.J.S.A. 30:4C-
15.1(a)(3).
The court discussed on the record its factual findings regarding the
services provided by the Division to Amelia and Avery, Sr., beginning in 2016
with a SPP. The court reviewed the timeline of events that led to Amelia and
Avery, Sr. being referred to substance abuse evaluations, psychological
evaluations, urine screens, supervised visitation, short-term counseling,
substance abuse inpatient treatment programs, short-term residential programs,
detox programs, and hair follicle testing.
Following the discussion of the services provided to defendants, the court
noted that its findings related to prongs one and two, as well as to "the Division's
A-4590-18T1
20
reasonable efforts." The Division made many efforts to rehabilitate the parents
during its three-year involvement with this family.
The Division assessed alternative placements for the children and ruled
out several relatives, including the maternal aunt, whose family was not
interested in being a caregiver, Lisa, who failed to complete the background
check, as well as Gina and Gail. Gina was ruled out due to her criminal history
and mental health history. Gail was ruled out based on her substance abuse and
the results of psychological evaluations following the removal of the children.
Amelia and Avery, Sr. offered no other alternatives to termination.
VI. Prong Four.
Prong four of the best interests test, that "[t]ermination of parental rights
will not do more harm than good," N.J.S.A. 30:4C-15.1(a)(4), "serves as a fail-
safe against termination even where the remaining standards have been met."
E.P., 196 N.J. at 108 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191
N.J. 596, 609 (2007)). "The question ultimately is not whether a biological
mother or father is a worthy parent, but whether a child's interests will best be
served by completely terminating the child's relationship with that parent." Ibid.
"Our courts have recognized that a child's relationship with a parent is of such
significance that doubts are to be resolved against its destruction." N.J. Div. of
A-4590-18T1
21
Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 264 (App. Div. 2005)
(quoting In Re Guardianship of J.E.D., 217 N.J. Super. 1, 15-16 (App. Div.
1987)).
"It also is widely understood that a 'child deeply needs association with a
nurturing adult' and that 'permanence in itself is an important part of that
nurture.'" E.P., 196 N.J. at 108. (quoting A.W., 103 N.J. at 610). N.J.S.A.
30:4C-15.1(a)(4) is deemed satisfied "where it is shown that the bond with
[resource] parents is strong and, in comparison, the bond with the natural parent
is not as strong." K.H.O., 161 N.J. at 363.
The Division "should offer testimony of a 'well-qualified expert who has
had [the] full opportunity to make a comprehensive, objective, and informed
evaluation' of the child's relationship with both the natural parents and the
[resource] parents." M.M., 189 N.J. at 281 (quoting In re Guardianship of J.C.,
129 N.J. 1, 19 (1992)). If contrasting expert opinions are presented, "[t]he court
has a responsibility, albeit difficult, to make sense of the competing views
presented by the experts and to sift the attitudes of all witnesses. Because the
welfare of a child is the central concern, it is important that courts thoroughly
inform themselves of the subject matter." J.C., 129 N.J. at 22.
A-4590-18T1
22
The court discussed in detail the experts' opinions as to the children's
bonds with their biological parents as well as their resource parents. The court
found that the experts agreed that Avery, Jr. has a "strong affectionate bond"
with Avery, Sr. and "a positive bond" with Amelia that is "not quite as strong"
as with Avery, Sr. The experts did not dispute that despite Avery, Sr.'s bond
with his children, he failed to demonstrate his ability to parent. As for Alex, the
experts concluded that he did not have a strong bond with either parent.
The experts "opined that the [resource] parents have a secure bond with
the children." The Division records, admissible as previously discussed
pursuant to N.J.R.E. 803(c)(6), reflect that the resource parents wished to adopt
the two boys. The court noted that defendants' expert referred to the resource
parents as "psychological parents," who the court described as "the folks that
the children know will provide for them and keep them safe on a day-to-day
basis." While the court acknowledged that the experts had different theories
about how termination would affect the children, the court found both experts
to be highly qualified, competent and credible.
The family court has the authority to make fact and credibility findings
and we defer to those findings, unless the decision was unsupported by
substantial and credible evidence. F.M., 211 N.J. at 448. The court focused on
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the children's need for a stable home, their "need to know where they're growing
up." With neither parent capable of parenting the children, and with permanency
desperately needed, termination of parental rights and adoption by the resource
parents was clearly in the children's best interests.
VII. Due Process Claim.
Amelia challenges the court's decision to proceed with closing arguments,
without objection, on the final day of testimony after the court excused
defendants from listening to the remainder of cross-examination due to a
doctor's appointment, and after advising them that closing arguments would be
presented on another day. She certainly had access to a transcript of the
proceedings and offers no reason why the presentation of closing arguments in
her absence violated her due process rights. Her argument is without sufficient
merit to require further discussion in a written opinion. R. 2:11-3(e)(1)(E).
In this unfortunate family situation, the Division presented substantial
credible evidence to support the family court's finding by clear and convincing
evidence that termination of parental rights was in the best interests of the
children. No "injustice" requires our intervention. See F.M., 211 N.J. at 448.
Affirmed.
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