# DCPP VS. M.K.F., G.M.V., AND R.B., IN THE MATTER OF THE GUARDIANSHIP OF K.M.V., J.L.V., Z.A.V., H.L.S.B., J.M.V., AND J.L.B. (FG-07-0120-19, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED)

> New Jersey Superior Court Appellate Division · August 6, 2021

URL: https://www.frixlaw.com/law-library/cases/4709652

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** August 6, 2021
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4709652

## How later opinions describe it (automated extraction)

- holding termination of the defendant's parental rights would not do more harm than good 53 A-2802-19 where the child's attachment to the resource parent was stronger than the child's attachment to the legal parent
- finding a mother presented a risk of harm to her children when she continued to have a relationship with a father who committed domestic violence against her and she refused to seek treatment for her mental illnesses and other parental deficits
- explaining expert testimony may establish a child suffers harm from exposure to domestic violence
- noting "the four prongs must be evaluated separately as to each child"
- observing "the four prongs must be evaluated separately as to each child"

## Opinion text

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NOT FOR PUBLICATION WITHOUT THE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-2802-19
A-2805-19

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

M.K.F.,

Defendant-Appellant/
Cross-Respondent,

and

G.M.V.,

Defendant,

and

R.B.,

Defendant-Appellant.
_________________________

IN THE MATTER OF THE
GUARDIANSHIP OF K.M.V.
and J.L.V.,

Respondents/
Cross-Appellants,

and

Z.A.V., H.L.S.B., J.M.V., and
J.L.B., Minors.
_________________________

Submitted February 10, 2021 – Decided August 6, 2021

Before Judges Accurso, Vernoia and Enright.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0120-19.

Joseph E. Krakora, Public Defender, attorney for
appellant/cross-respondent M.K.F. (Louis W. Skinner,
Designated Counsel, on the briefs).

Joseph E. Krakora, Public Defender, attorney for
appellant R.B. (Kimberly A. Burke, Designated
Counsel, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Mary L. Harpster, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for respondents/cross-appellants K.M.V. and
J.L.V. (Meredith Alexis Pollock, Deputy Public
Defender, of counsel; Todd Wilson, Designated
Counsel, on the briefs).

2 A-2802-19
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors H.L.S.B., J.M.V. and J.L.B.
(Meredith Alexis Pollock, Deputy Public Defender, of
counsel; Linda Vele Alexander, Designated Counsel,
on the brief).

PER CURIAM

Defendant M.K.F. (Meg) is the mother of six children: ten-year-old

K.M.V. (Karen), nine-year-old Z.A.V. (Zack); seven-year-old J.L.V. (Jasmine),

five-year-old J.M.V. (Jason), two-year-old J.L.B. (Jacob), and one-year-old

H.L.S.B. (Heather). 1 Defendant G.M.V. (Greg) is the father of Karen, Zack,

Jasmine, and Jason. Defendant R.B. (Randall) is the father of Jacob and

Heather.

These consolidated appeals are from a guardianship judgment terminating

Meg's parental rights to Karen, Jasmine, Jason, Jacob, and Heather, and

Randall's parental rights to Jacob and Heather. 2 In A-2802-19, Meg appeals,

1
We use fictitious names to protect the identity and privacy of the parties and
because records relating to proceedings brought by the New Jersey Division of
Child Protection and Permanency (the Division) pursuant to Rule 5:12 are not
subject to public disclosure. R. 1:38-3(d)(12). We provide the ages of the
children at the time of the 2020 guardianship trial.
2
The judgment terminated Greg's parental rights to Karen, Jasmine, and Jason.
Greg did not appeal from the judgment or participate in this appeal.

3 A-2802-19
and the Law Guardian for Karen and Jasmine cross-appeals, from the judgment.

In A-2805-19, Randall appeals from the judgment.

The judgment also dismissed the Division's complaint seeking the

termination of Meg's and Greg's parental rights to Zack. The Division does not

appeal from the dismissal.

Meg, Randall, and the Law Guardian for Karen and Jasmine contend the

court erred by finding the Division clearly and convincingly satisfied the best-

interests standard for termination of parental rights under N.J.S.A. 30:4C-

15.1(a). The Division and the Law Guardian for Jason, Jacob, and Heather urge

that we affirm the order. After reviewing the record in light of the parties'

arguments, we conclude the court correctly applied the governing legal

principles, and we affirm the termination of Meg's parental rights to Jason,

Jacob, and Heather, and Randall's parental rights to Jacob and Heather. We also

affirm the court's determination the Division clearly and convincingly

established the first three prongs of the statutory best-interests standard for

termination of Meg's parental rights to Karen and Jasmine. We further find that

based on the trial evidence, the Division satisfied its burden of proving the fourth

prong of the standard for termination of Meg's parental rights to Karen and

Jasmine, but based on changes in circumstances subsequent to the guardianship

4 A-2802-19
order, we vacate the order terminating Meg's parental rights to Karen and

Jasmine and remand for reconsideration of whether termination of Meg's

parental rights to those two children will not do more harm than good.

I.

The final guardianship order follows Meg's, Randall's, and the children's

lengthy involvement with the Division. 3 We recount their history with the

Division in detail to provide context for our discussion of the parties' respective

arguments concerning the children's best interests and the guardianship order.

The Division's involvement with Meg and Greg began in 2011 when it

received a referral that Meg physically assaulted ten-month-old Zack. During

the Division's investigation, Meg reported she accidentally hit Zack in the face

while attempting to hit Greg, who used Zack as a "shield." Meg admitted to

marijuana use and explained she and Greg had a history of domestic violence.

The Division substantiated Meg for physical abuse, and offered services

to Meg and Greg, including parenting classes, psychological evaluations, and

substance abuse evaluations. The court granted the Division care and

supervision of Karen and Zack and, a few days after Jasmine's birth in March

3
We limit our discussion of the facts concerning Greg because he does not
appeal from the judgment terminating his parental rights.

5 A-2802-19
2012, the court also granted the Division care and supervision of Jasmine. The

litigation was dismissed in August 2012.

Nineteen months later, the Division received a referral that two-week-old

Jason had a fractured skull. The reporter stated the injury occurred when Greg

left Jason on a bed, and then four-year-old Karen picked up Jason and dropped

him on the floor. It was also reported Meg had received little prenatal care and

she was observed at the hospital with bruises on her leg and jaw. Greg tested

positive for marijuana use. In April 2014, the court awarded the Division care

and supervision of Karen, Zack, Jasmine, and Jason.

In March 2015, the Division referred Meg for a substance abuse

evaluation because she admitted to marijuana use when "stressed out." At that

time, Meg also obtained a domestic violence restraining order against Greg and

reported that Greg had previously physically assaulted her and threatened to kill

her. Within two months, Meg dismissed the restraining order and was again

living with Greg and the children.

During a June 2015 substance abuse evaluation, Meg admitted to using

marijuana and Percocet, and she reported suffering from anxiety, depression,

and other mental health issues. Meg began an intensive outpatient program, but

was terminated from the program for noncompliance.

6 A-2802-19
In August 2015, Meg and the children were evicted from their apartment

due to nonpayment of rent. Meg and the children lived in a series of shelters

and with various family and friends until April 2016. In November 2015, Greg

punched Meg in the face, and she obtained a domestic violence temporary

restraining order (TRO) against him. A final restraining order was entered in

December 2015.

In March 2016, Meg was terminated from a substance abuse treatment

program due to nonattendance. The following month, she asked the Division

caseworker to "come get the kids" because she was denied welfare and did not

have housing. Meg continued to move between the homes of family and friends,

and she remained noncompliant with Division services.

Meg regularly interacted with Greg, leaving Jason with Greg even though

the domestic violence final restraining order remained pending against Greg. In

May 2016, Greg struck Meg in the face while she held Jason, and Greg

threatened to shoot Meg with "guns in the house." Meg contacted the Division

and requested that it "come get the children" because she was "overwhelmed."

7 A-2802-19
The Division conducted a Dodd 4 removal of Karen, Zack, Jasmine, and

Jason, and substantiated Greg for creating a substantial risk of injury to Jason.

On May 24, 2016, the court granted the Division custody of the children. At the

time of their removal, each of the children had lice; Jasmine had facial scars

caused by Greg hitting her with a belt; Jasmine reported being hungry while in

Meg's care because there was no food; it was necessary to remove a number of

Karen's teeth because they were "rotten" and filled with cavities; and Karen and

Zack had each missed more than thirty days of school since the beginning of the

2015-2016 school year.

At the resource home where they were placed, Karen and Jasmine fought

each other. Karen and Jasmine qualified for in-home behavioral services and

were placed in a therapeutic home on August 17, 2016. Much of their therapy

focused on addressing trauma to which Meg and Greg exposed them.

During a June 2016 substance abuse assessment, Meg reported depression,

anxiety, "[t]rouble controlling violent behavior," and having been previously

diagnosed with bipolar disorder. Meg visited a psychiatrist for treatment of

4
"A 'Dodd removal' refers to the emergency removal of a child from the home
without a court order, pursuant to the Dodd Act, which, as amended, is found at
N.J.S.A. 9:6-8.21 to -8.82." N.J. Div. of Child Prot. & Permanency v. T.S., 463
N.J. Super. 142, 150 n.2 (App. Div. 2020) (quoting N.J. Div. of Youth & Fam.
Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010)).

8 A-2802-19
bipolar disorder and depression. The psychiatrist prescribed medication, but

Meg later reported she stopped seeing the psychiatrist because she was pregnant

and could not take the medication. The Division arranged for Meg to receive

mental health treatment at another facility.

In July 2016, psychologist Dr. Leslie J. Williams conducted an evaluation

and determined Meg was not "currently capable of providing adequate parenting

to her children" because Meg did not comply with treatment recommendations

and required psychological and substance abuse treatment. Meg was admitted

to an outpatient treatment program in July 2016; terminated in August 2016 due

to "sporadic[]" attendance; readmitted in January 2017; and terminated in April

2017 because she stopped attending treatment.

In February 2017, Meg reported she was pregnant and that Randall, who

has a criminal history involving drugs and domestic violence, was the child's

father. 5 In March 2017, Dr. Williams conducted a psychological evaluation of

Randall and determined Randall was "not currently capable of providing

adequate parenting to [Meg's] children." Dr. Williams found Randall had issues

with anger, irritability, and control, and she recommended that he attend

5
Meg did not report what occurred with the alleged pregnancy that she earlier
claimed prevented her from taking the medication prescribed by the psychiatrist
in June 2016.

9 A-2802-19
parenting classes and a substance abuse assessment. During the assessment,

Randall reported he served two years in prison for assaulting the mother of his

other children. Following a substance abuse assessment, Randall was not

recommended for substance abuse treatment.

In March 2017, Meg began therapeutic visits with the children and

parenting skills classes. She attended all the visits and two classes through May

2, 2017, but she then attended only one of the following nine parenting classes,

and six of eleven visits with the children, through July 19, 2017.

Meg's poor attendance coincided in part with several domestic violence

incidents. On May 1, 2017, Meg was treated in an emergency room for injuries

sustained following a domestic violence incident with Randall. Meg agreed to

meet with the Division's domestic violence liaison, but she missed the

appointment and advised she did not need services because she was no longer

dating Randall. Randall, who was on probation, was referred to an anger

management program in which he enrolled and later completed.

The following month, Meg and Randall were involved in another domestic

violence incident. They were each incarcerated as a result. Meg was released

on June 21, 2017.

10 A-2802-19
From July 20, 2017 through October 2, 2017, Meg attended every

therapeutic visit with the children, but she did not participate in parenting

classes. During this time, the supervisor of her visits with the children observed

that Meg appeared "withdrawn" and often had "visible bruising," and that the

children asked about Meg's injuries.

Meg gave birth to Jacob on October 13, 2017. Randall was incarcerated

at the time as a result of a violation of probation. Eleven days later, the Division

went to Meg's address and learned Meg's and Jacob's location was unknown.

Meg spoke with a Division caseworker on October 25, 2017, and refused to

provide Jacob's location. Two days later, the Division conducted a Dodd

removal of Jacob and, on October 31, 2017, the court granted the Division

custody of the child.

In November 2017, Meg underwent a substance abuse evaluation. It was

not recommended that she undergo substance abuse treatment, but she was

referred for mental health treatment.

Randall was released from incarceration in December 2017 and began

visitation with Jacob.

The following month, Meg underwent a psychological re-evaluation with

Dr. Elizabeth Stilwell. Randall accompanied Meg to the evaluation. Meg

11 A-2802-19
explained she participated in domestic violence counseling but stopped because

she "didn't need it anymore." She also stated she did not comply with other

services because "she did not feel like she needed them," and she no longer

needed medication, in part, because her relationship with Randall improved her

mood. Meg denied any domestic violence with Randall.

Dr. Stilwell expressed concern that Meg's relationship with Randall

involved domestic violence and Meg was dependent on Randall for housing and

financial stability. Dr. Stilwell determined Meg "ha[d] made very limited

progress" and she "appear[ed] to lack the ability to adequately parent her five

children and to protect them from harm." Dr. Stilwell recommended that Meg

complete domestic violence counseling and a parenting skills program, obtain

stable housing and income, participate in a substance abuse evaluation, and

continue therapeutic visits with the children.

In late January 2018, the Division received a report that Karen took naked

pictures of Jasmine. Karen and Jasmine later admitted they took pictures of their

vaginas and learned to take the pictures from seeing their mother, Meg, take

pictures of her vagina. According to the reporter, Karen and Jasmine said they

saw Meg and her boyfriend having sex multiple times and that, during their visits

with Meg, they saw pictures on Meg's cell phone of Meg having sex with her

12 A-2802-19
boyfriend. Karen and Jasmine underwent psychosocial evaluations following

the report.

In February 2018, the Division referred Randall to a batterer's intervention

program and for parenting skills classes, and it referred the family to a program

to address their housing needs. The program did not accept the family because

Meg would not comply with the recommendation that she see a domestic

violence liaison. Later, in October 2018, the Division wrote a letter on Meg's

behalf to assist her in obtaining subsidized housing.

Randall went to a substance abuse assessment in February 2018. He

reported having symptoms consistent with panic attacks and advised he was

previously diagnosed with a mental illness but last took medication in December

2017. Randall was not recommended for substance abuse treatment, but it was

observed that he "could benefit from grief counseling, healthy relationship

skills, anger management [training], mental health assessment[s], complet[ing]

probation[,] and maintain[ing] employment."

Dr. Stilwell conducted a psychological evaluation of Randall in March

2018. Randall did not believe he needed a batterer's intervention program; he

said he would "do anger management because it's shorter." Randall reported he

previously had been charged with domestic violence, but he denied physical

13 A-2802-19
altercations with former paramours. He described his past behavior as "play

fight[ing]," and he denied a history of domestic violence with Meg. He

admitted, however, he "will grab [Meg's] wrists and arms" to calm her down. A

few days prior to Dr. Stilwell's evaluation of Randall, Meg reported there was

"a lot of domestic violence," and Randall "was trying to control her" and

"threatened to kill her."

Dr. Stilwell found Randall's understanding of his previous domestic

violence incidents and criminal charges "extremely concerning." Dr. Stilwell

recommended that Meg and Randall be referred for a "more in-depth domestic

violence risk assessment" and that Randall complete parenting skills classes.

Randall agreed to participate in an anger management program, but he was

closed out of the program because he did not attend.

In May 2018, Meg completed individual therapy. The therapy focused on

addressing anger management, domestic violence, and parenting skills.

On May 30, 2018, the Division received a referral that Jasmine and Zack

were found in bed together with no pants on. Karen witnessed the incident.

Karen and Jasmine had already been referred for psychosocial evaluations

because Karen had taken naked photographs of Jasmine. Zack was also referred

for, and underwent, a psychosocial evaluation after this incident.

14 A-2802-19
Meg cancelled a June 5, 2018 visit with the children, claiming she suffered

injuries—a black eye, and bruises and swelling of her hand and leg—in a car

accident. Meg later admitted she lied about the car accident and that Randall

injured her during a domestic violence incident. The Division advised Meg how

to obtain a restraining order against Randall, and offered to meet with her to

assist in obtaining a restraining order. Meg said she would obtain a restraining

order, but she did not. Meg and Randall visited the children together on June

11, 2018 and July 3, 2018.

On June 26, 2018, Meg left a family team meeting after the Division raised

the issue of the causes of Meg's bruising. Meg denied that Randall caused the

injuries and accused the Division workers of making up stories. The Division

provided Meg with a domestic violence liaison, but Meg consistently missed

appointments with her.

During a July 24, 2018 visit with the children, Meg slapped Jasmine in the

mouth because Jasmine "was not listening to her." Around this time, Randall

stopped contacting the Division and stopped visiting the children. He also had

several active warrants for his arrest.

In September 2018, Meg requested a Division referral for the housing

program that had previously denied her application because she admitted to a

15 A-2802-19
history of domestic violence. The Division advised Meg the program might

deny the application again because of her domestic violence history.

On September 26, 2018, the domestic violence liaison closed out Meg's

case because she did not appear for her appointments. The liaison provided Meg

with information concerning a domestic violence program. To the Division's

knowledge, Meg never sought any domestic violence services.

On October 15, 2018, Dr. Thailyn Alonso conducted a psychological re-

evaluation of Meg. During the evaluation, Meg said she did not believe she

needed a domestic violence program, and she denied spending time with

Randall. Meg acknowledged her children witnessed domestic violence incidents

between her and Randall. Dr. Alonso observed Meg "demonstrated little to no

insight regarding the risk and impact of domestic violence which is likely to

continue to place her children's safety at risk." Dr. Alonso found there was an

"ongoing" risk of domestic violence, the gains Meg made from services were

"limited," and Meg was still not able to adequately parent her children.

By November 2018, Randall was in contact with the Division again; he

completed an anger management program on November 14, 2018. Three weeks

later, Dr. Carolina Mendez conducted a psychological evaluation of Randall.

During the evaluation, Randall claimed his previous domestic violence charges

16 A-2802-19
were "false accusations" and that he had been the victim of domestic violence.

He said he did not need a batterer's intervention program, but he was

participating in a batterer's intervention program because it would help him get

his son back in his care.

Dr. Mendez found Randall "exhibit[ed] a pervasive pattern of denial,

minimization, avoidance, and displacement of blame," and she opined that

Randall "made very few gains in treatment." Dr. Mendez determined Randall

would continue to engage in domestic violence, and that he needed to

acknowledge his participation in domestic violence and accept responsibility for

the harm he caused to others.

On December 7, 2018, officers arrested Meg and Randall. Meg had

recorded a sexual encounter between her roommate and a male, and it resulted

in a domestic dispute among Meg, Randall, and the roommate. Meg was arrested

following the incident.

While at the Division's office on January 7, 2019, Meg yelled and cursed

at Randall. A security guard intervened, and Randall left the office. Meg

declined a caseworker's offer to speak to a domestic violence liaison. Three

weeks later, Meg was arrested following a domestic violence incident during

17 A-2802-19
which she reportedly struck Randall in the face and attempted to destroy a

television.

On January 31, 2019, Meg and the children began family therapy. On

February 4, 2019, Meg attended an intake for a program that offered anger

management, individual therapy, parenting skills, and domestic violence

classes. Several months later, in April 2019, the court ordered Meg to comply

with the program. However, Meg did not comply, and her case with the program

was closed.

In March 2019, Randall began participating in group therapy. Although

Randall made progress over the course of several months, the program

determined Randall needed more treatment because he was not as "forthcoming"

with more difficult issues. Dr. Stilwell testified at trial the program was not

appropriate for batterer's intervention.

On April 5, 2019, Randall obtained a TRO against Meg. He reported that

three days earlier Meg first appeared at his job to harass him, and later struck

his knee with her car.

On April 11, 2019, the Division filed a complaint for guardianship of

Karen, Zack, Jasmine, Jason, and Jacob. The next day, Randall requested and

18 A-2802-19
obtained the dismissal of his TRO against Meg. Around this time, Randall

reported that he and Meg no longer lived together, but he paid for her rent.

In late April, Division caseworkers supervising Meg's visits with the

children observed "an increase of negative behavior in visits" after the children

learned about the Division's goal of adoption. The children's behavior

sometimes "overwhelmed" Meg, which caused her to leave one visit early.

On May 2, 2019, Heather was born. On May 7, 2019, the Division

obtained custody of Heather, and, six days later, the Division amended the

complaint to also seek guardianship of Heather.

Around this time, Meg reported the building in which she resided was

being foreclosed. Shortly thereafter, Meg advised Dr. Stilwell that she rented a

first-floor apartment in exchange for acting as the superintendent of the

building's exterior. However, Randall advised Dr. Stilwell he was the

superintendent of the building and that Meg did not pay rent there.

During a May 21, 2019 visit with the children, Meg asked a caseworker

in front of the children what she needed to do to surrender her parental rights,

and she threatened not to attend the next visit.

In June 2019, Meg began attending individual therapy to address domestic

violence, anger management, and parenting skills. Although she missed five of

19 A-2802-19
the first nine sessions, she completed treatment in October 2019, and thereafter

continued therapy for a period of time.

On July 26, 2019, the Division moved Heather into Jacob's resource home.

On August 16, 2019, the Division placed Karen and Jasmine into a resource

home committed to adoption.

During this time, Meg and Randall continued to visit the children.

However, by September 2019, Randall's visits were inconsistent, and in

November 2019, two months prior to the guardianship trial, Randall stopped

attending the visits altogether.

During the guardianship trial, the Division presented its case through the

introduction of voluminous records, and the testimony of caseworker Neury

Trinidad, adoption supervisor Olga Fuentes, and Dr. Stilwell, who was qualified

as an expert in psychology and bonding. The Law Guardian for Karen and

Jasmine presented Karen and Dr. Karen Wells, an expert in psychology and

bonding. We briefly summarize the witness testimony.

Trinidad testified concerning the Division's record-keeping and Meg's,

Greg's, and Randall's respective histories with the Division. Trinidad explained

that all the children, except Zack, were in adoptive homes, and that Karen,

Jasmine, and Zack had indicated they preferred to be in Meg's care.

20 A-2802-19
Trinidad also testified that, at the time of trial, Meg had appropriate

housing and had provided the Division with a lease, but the Division was unable

to verify the lease because Meg did not provide an updated lease with the new

owners of the property in response to Trinidad's requests. Therefore, Trinidad

was unable to confirm Meg would be able to stay in the housing in the long term.

Trinidad further explained Randall's living situation was not known because he

refused to provide the Division with his address.

Trinidad also noted Meg had been employed as a security guard for three

months, but her employment had otherwise been unstable. Trinidad testified

Randall's employment was "not stable" and that he had multiple changes in

employment.

Fuentes testified concerning the Division's process for select home

adoption for children who were not in adoptive homes but whose parents'

parental rights were terminated. She explained the termination of parental rights

to a child who was in a non-adoptive placement allowed the Division to explore

additional placement options in and outside New Jersey because, prior to

termination of parental rights, the Division is unable to share information

concerning a child for the purpose of seeking possible adoptive select home

placements.

21 A-2802-19
Fuentes's testimony focused on Zack, who was not in a resource home

committed to adoption at the time of trial. Fuentes explained in detail the

Division's plan to place Zack in a home committed to adoption and his particular

prospects for adoption based on his age and history of behavioral and other

issues.

Dr. Stilwell testified she conducted psychological evaluations that

included objective testing of Meg and Randall, and bonding evaluations with

Meg, Randall, and their children, and the children and their resource parents. 6

She also explained the methodologies she employed to conduct the evaluations.

Dr. Stilwell's most recent evaluations of Meg and the children occurred in June

2019, seven months prior to trial.

Based on her evaluations of Meg and Randall, Dr. Stilwell opined that, for

reasons unique to each, neither parent is capable of adequately parenting their

children at present or in the foreseeable future. She further determined the

likelihood of Meg mitigating any parenting defects was "poor."

As the basis for her opinion concerning Meg, Dr. Stilwell considered

Meg's history, including: her involvement with the Division since 2011, and that

6
It does not appear Dr. Stilwell conducted a bonding evaluation with Zack and
any resource parent.

22 A-2802-19
Meg's original involvement with the Division began with a referral that she

struck then ten-month-old Zack in the face during a domestic violence incident

with Greg. Dr. Stilwell also noted Meg's longstanding involvement with the

Division; her history of failing to fully comply with services; her mental health

history and inconsistent use of prescribed medications; her inability to maintain

stable housing and employment; her lack of consistent visitation with the

children; her domestic violence history; her history of dependence on Greg and

Randall, with whom she had relationships characterized by domestic violence;

her exposure of her children to domestic violence; her reliance on Greg and

Randall for housing; and her ongoing minimization of her domestic violence

history and the domestic violence that occurred in her relationships with Greg

and Randall. Dr. Stilwell found Meg's failure to consistently visit the children

and attend recommended programs demonstrated Meg's instability and that Meg

would be unable to ensure the children were taken to appointments and

activities. Dr. Stilwell testified Meg's failure to comply with services

demonstrated a lack of motivation to address the issues that led to the children's

removal from her care and custody.

Dr. Stilwell further explained the children have emotional and behavioral

issues that will place "a high level of demand" on a parent, and that Meg has

23 A-2802-19
expressed she is "overwhelmed" with the children during her visits with them.

In Dr. Stilwell's opinion, those facts in part establish Meg would have difficulty

caring for the children. Dr. Stilwell further opined Meg had not benefitted from

programs and services provided to address her deficiencies and needs.

Dr. Stilwell testified Meg's lack of insight prevents Meg from changing

her behavior and, as a result, Meg will repeat the behavior that led to the removal

of the children. Based on her testing and evaluation of Meg, Dr. Stilwell opined

that Meg lacks the psychological resources to meet the children's needs for

protection, safety, nurturing, and guidance, and Meg is not likely to change in

the foreseeable future.

Dr. Stilwell explained that Meg's long history of failing to obtain the

benefits of services resulted in an inability to mitigate the risks of harm to the

children through any meaningful change in her behavior. Dr. Stilwell testified

Meg's domestic violence history and her involvement with paramours who

committed acts of domestic violence caused harm to the children, who were

exposed to the domestic violence, and presented a risk of future harm because

Meg had not benefitted from the services provided over many years to mitigate

the risk that she would continue her involvement in relationships characterized

by domestic violence. Dr. Stilwell also explained that Meg's housing and

24 A-2802-19
employment instability, and other issues, rendered her unable to safely parent

the children, and caused the children harm by denying them opportunities for

permanency.

Dr. Stilwell further explained termination of Meg's parental rights would

not do more harm than good. She found that although each of the children had

positive relationships with Meg, it was unlikely that they had secure attachments

to her because of her inconsistent visits and the amount of time they spent

outside of her care.

Dr. Stilwell also testified it was unlikely the older children, Karen,

Jasmine, and Zack, had secure attachments based on the time they had actually

lived with Meg because of the traumas they experienced under her care. Dr.

Stilwell testified the children would suffer some harm if Meg's rights were

terminated, but the harm would not be significant or enduring and that any harm

would be mitigated by providing the children with secure and stable

environments.

Dr. Stilwell testified she found Randall's criminal history and

minimization and denial of his involvement with the Division were "significant"

in her determination Randall would not be able to safely parent. Dr. Stilwell

observed Randall was physically violent, and coercive and controlling towards

25 A-2802-19
Meg, but he either denied or minimized his domestic violence history with Meg

and others. Dr. Stilwell observed Randall continued to coerce and control Meg

even after they separated. Dr. Stilwell found Randall's reports concerning his

history of domestic violence contradicted the record and Meg's statements, and

he lacked the insight necessary to address the issues that led to the removal of

the children from his care. Dr. Stilwell also noted Randall's refusal to provide

his address as evidence of his housing instability.

Based on objective testing and her interview of Randall, Dr. Stilwell found

he had psychological traits—including his minimization of his domestic

violence history, his lack of empathy for the children, and his primary focus on

himself—that impair his ability to parent Jacob and Heather. Dr. Stilwell opined

Randall lacks the psychological and physical resources to provide for his

children's protection, safety, nurturing, and guidance at present and in the

foreseeable future. She concluded that termination of his parental rights to Jacob

and Heather would not do more harm than good.

During Dr. Stilwell's bonding evaluations of Karen and Jasmine with Meg,

Karen stated she preferred to live with Meg if Meg obtained housing. Jasmine

advised Dr. Stilwell she wanted to stay with her resource parents. Dr. Stilwell

opined that Karen and Jasmine each had an "insecure" attachment to Meg, and

26 A-2802-19
neither child viewed Meg as a parental figure. Dr. Stilwell also found that

although Karen and Jasmine had resided with their resource parents for only a

few months prior to the evaluation, the children enjoyed a healthy relationship

with them, and the consistency and stability they provided would mitigate any

disruption to the children that termination of Meg's parental rights might cause.

Dr. Stilwell opined that Jason had an attachment to Meg, but he did not

see her as a parental figure. Meanwhile, Dr. Stilwell testified Jason had a secure

attachment to his resource parents, who he viewed as his parents, and that Jason

would suffer severe and enduring harm if his relationship with his resource

parents was severed.

Dr. Stilwell further testified that Jacob had a secure attachment to his

resource parent, who has provided him with care, nurturing, and support for

almost the entirety of his life. Dr. Stilwell explained that Jacob viewed his

resource parent as his primary caregiver, attachment figure, and psychological

parent, and that severing his relationship with his resource parent would cause

him severe and enduring harm. In contrast, Dr. Stilwell opined that Jacob did

not have a secure attachment with either Meg or Randall, and that any disruption

caused by the termination of their parental rights to him would not result in

severe or enduring harm to the child.

27 A-2802-19
Dr. Stilwell opined Heather would experience "very minimal" disruption

if Meg's and Randall's parental rights were terminated because Heather was too

young to have formed any attachments with them. Dr. Stilwell further explained

that none of the children would suffer significant or enduring harm from the

termination of either Meg's or Randall's parental rights, and any harm they might

suffer would be mitigated by their placements in, or continued placements in,

stable and secure homes.

During cross-examination, Dr. Stilwell was asked why she did not update

her report during the nine-month period following her evaluations and the

guardianship trial. Dr. Stilwell explained she was not asked to update her report,

but she did review and consider new information prior to her trial testimony.

The information pertained to Meg completing services and obtaining

employment following Dr. Stilwell's evaluations.

Dr. Stilwell testified the new information did not alter her opinions

concerning Meg's inability to parent the children. For example, Dr. Stilwell

opined that Meg did not benefit from completion of services because she

continued to have a relationship with and rely on Randall. Dr. Stilwell was not

persuaded the new information established Meg benefitted from the treatment

because no one had observed any actual change in Meg's behavior and Meg had

28 A-2802-19
a history of providing inconsistent narratives to service providers. Dr. Stilwell

further noted the clinician who oversaw Meg's most recent treatment may not

have been aware of Meg's history.

Called by her Law Guardian, then ten-year-old Karen testified at trial that

she did not want to be adopted. Instead, she preferred to live with Meg.

The Law Guardian for Karen and Jasmine also called Dr. Wells, who

testified as an expert in psychology and bonding. She performed a psychological

evaluation of Meg, and bonding evaluations with Meg and the children, and

Karen and Jasmine and their resource parents.

During her Dr. Wells' evaluation, Meg minimized her domestic violence

history and provided information that was inconsistent with prior reports Dr.

Wells reviewed. Meg repeated versions of events that she had previously

acknowledged were untrue. Dr. Wells found Meg had "an underdeveloped

appreciation of the difficulties her children endured while in her care as a result

of domestic violence, transience, and uncertainty."

Dr. Wells found Meg "continue[d] to demonstrate characteristics

indicating that she is neither emotionally nor psychologically equipped to

address the day-to-day demands of attending to herself, managing the home, and

responding to the educational, social, emotional, [and] psychological needs

29 A-2802-19
presented by" Karen, Zack, and Jasmine. Dr. Wells found the children did not

view Meg as their primary caretaker, the bond between Meg and the children

was insecure, and reunification was "clinically contraindicated."

Dr. Wells found, however, that termination of Meg's parental rights would

cause irreparable and enduring harm to the children, and she recommended that

the permanency offered by a guardianship order should be delayed for nine

months to permit Meg an opportunity to further take advantage of services. Dr.

Wells acknowledged the children had suffered, and would continue to suffer,

harm from their lack of permanency during the nine-month period she suggested.

Subsequent to the closing arguments of counsel, the court issued a

thorough written decision summarizing the evidence and detailing its findings

of fact and conclusions of law based on the evidence presented concerning each

child. The court found the Division clearly and convincingly established each

of the four prongs of the best-interests-of-the-child statutory standard, N.J.S.A.

30:4C-15.1(a)(1) to (4); see also N.J. Div. of Youth & Fam. Servs. v. A.R., 405

N.J. Super. 418, 443 (App. Div. 2009) (noting "the four prongs must be

evaluated separately as to each child"), and, in pertinent part, concluded

termination of Meg's parental rights is in the best interests of Karen, Jasmine,

Jason, Jacob, and Heather, and found termination of Randall's parental rights is

30 A-2802-19
in Jacob's and Heather's best interests. 7 The court also found the Division failed

to sustain its burden of establishing it was in Zack's best interest to terminate

Meg's parental rights. The court entered a February 25, 2020 guardianship order

reflecting its decision. These appeals and the cross-appeal followed.

Subsequent to the submission of the parties' merits briefs, the Law

Guardian for Karen and Jasmine submitted letters to this court advising that

Karen's and Jasmine's placements had changed following entry of the

guardianship judgment. 8

The letters explained that on March 2, 2020, Karen and Jasmine were

placed together in a resource home different from the one in which they had

been residing at the time of trial. Karen was subsequently removed from the

new resource home on December 15, 2020, and, the following day, was moved

to a non-adoptive treatment home.

Meg moved before this court to: supplement the record with the Law

Guardian's three letters; vacate the guardianship judgment's termination of her

7
As noted, the court also found it was in Karen's, Jasmine's, and Jason's best
interests to terminate Greg's parental rights to them. The court also found the
Division failed to clearly and convincingly establish grounds supporting the
termination of Greg's parental rights to Zack.
8
Two letters are dated September 30, 2020, and one letter is dated December
21, 2020.

31 A-2802-19
parental rights to Karen and Jasmine; and remand the matter for the trial court

to reconsider its determination of prong four of the best-interests standard as to

Karen and Jasmine based on their changed placements. 9 The Division filed

opposition to Meg's motion, arguing the information concerning Karen's and

Jasmine's changed placements did not warrant a remand for reconsideration of

the guardianship judgment. Because the motion was submitted to the court just

prior to the scheduled calendar date, we deemed it appropriate to decide the

motion in the context of our consideration of the parties' arguments on appeal.

We grant the motion to supplement the record with the three letters. They

were submitted in accordance with the requirement that parties advise this court

by letter of "any change in the placement status of [a] child during the pendency

of [an] appeal" from a guardianship matter, R. 2:6-11(f), and none of the parties

dispute the accuracy of the information in the letters. In our discussion of the

merits of the appeals and cross-appeal, we address Meg's motion to vacate the

guardianship order as to Karen and Jasmine and for a remand for the court to

reconsider whether termination of Meg's parental rights will do more harm than

good under the fourth prong of the best-interests-of-the-child statutory standard,

N.J.S.A. 30:4C-15.1(a)(4).

9
Meg's motion to supplement the record is docketed as M-2543-20.

32 A-2802-19
II.

"[P]arents have a constitutionally protected, fundamental liberty interest

in raising their biological children." N.J. Div. of Youth & Fam. Servs. v. T.S.,

417 N.J. Super. 228, 240 (App. Div. 2010) (citation omitted). "Th[is]

fundamental parental right, however, is not without limitation." N.J. Div. of

Youth & Fam. Servs. v. E.P., 196 N.J. 88, 102 (2008). The State, as parens

patriae, has a "responsibility to protect the welfare of children." In re

Guardianship of J.N.H., 172 N.J. 440, 471 (2002). Thus, "[w]hen the safety and

welfare of a child become so irredeemably jeopardized by parental abuse or

neglect, the State may take the most extreme form of action, which is to

completely sever the relationship between a mother or father and a child." E.P.,

196 N.J. at 102.

We first summarize the well-established principles that guide our review.

To determine whether termination of parental rights is appropriate, a court will

apply the "best interests of the child" standard. T.S., 417 N.J. Super. at 241.

Under the standard, a court may terminate a person's parental rights if the

Division establishes 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;

33 A-2802-19
(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 [or her] resource family parents would
cause serious and enduring emotional or psychological
harm to the child;

(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; and

(4) Termination of parental rights will not do more
harm than good.

[N.J.S.A. 30:4C-15.1(a); see also E.P., 196 N.J. at 103.]
The four prongs of the standard require a fact-sensitive analysis, and "are

neither discrete nor separate. They overlap to provide a composite picture of

what may be necessary to advance the best interests of the children." N.J. Div.

of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 280 (2007) (quoting N.J. Div.

of Youth & Fam. Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005));

see also In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

"[T]he scope of [our] review of a trial court's decision to terminate

parental rights is limited." T.S., 417 N.J. Super. at 240. A reviewing court "will

not disturb the family court's decision to terminate parental rights when there is

34 A-2802-19
substantial credible evidence in the record to support the court's findings." E.P.,

196 N.J. at 104. Generally, we will defer to the trial court's factual findings

"because it observed the witnesses, weighed their credibility, and had the best

'"feel" of the case.'" M.M. 189 N.J. at 293 (citation omitted). "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)). We review a trial court's legal

interpretations de novo. N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J.

527, 552 (2014).

On appeal, Meg argues for the first time the court erred by relying on Dr.

Stilwell's expert opinion, which Meg contends constituted an inadmissible net

opinion. Meg, Randall, and the Law Guardian for Karen and Jasmine further

claim the court erred by finding it was in the best interests of the children to

terminate parental rights. Meg challenges the court's findings as to prongs one,

two, and four; Randall challenges the court's findings as to all four prongs; and

the Law Guardian challenges the court's findings as to prongs two, three, and

four.

35 A-2802-19
A.

We first consider Meg's contention that the court erred by considering and

relying on Dr. Stilwell's opinion because it constituted an inadmissible net

opinion. We reject the argument for two reasons. First, Meg failed both to move

to bar Dr. Stilwell's testimony prior to trial or object to her testimony based on

a contention Dr. Stilwell offered an inadmissible net opinion. We generally do

not consider an argument raised for the first time on appeal, see State v.

Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229,

234 (1973), and we reject Meg's claim for that reason alone. Moreover, and for

purposes of completeness, we find no merit to Meg's argument.

"N.J.R.E. 703 'addresses the "bases of opinion testimony by experts."'"

Polzo v. Cnty. of Essex, 196 N.J. 569, 582 (2008) (quoting State v. Townsend,

186 N.J. 473, 494 (2006)). The rule requires that an expert's opinion be based

on "facts or data derived from (1) the expert's personal observations, or (2)

evidence admitted at the trial, or (3) data relied upon by the expert which is not

necessarily admissible in evidence but which is the type of data normally relied

upon by experts." Townsend v. Pierre, 221 N.J. 36, 53 (2015) (quoting Polzo,

196 N.J. at 583).

36 A-2802-19
A "corollary" of N.J.R.E. 703 is the "net opinion" rule, which prevents the

admission of an expert's opinion into evidence when the opinion is not supported

by facts or data. Ehrlich v. Sorokin, 451 N.J. Super. 119, 134 (App. Div. 2017).

"A net opinion is 'a bare conclusion unsupported by factual evidence.'" Ibid.

(quoting Creanga v. Jardal, 185 N.J. 345, 360 (2005)). Thus, for an expert's

opinion to be admissible, the "expert must '"give the why and wherefore" that

supports the opinion, "rather than a mere conclusion."'" Borough of Saddle

River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013) (quoting Pomerantz

Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)). "[E]xperts [must]

'be able to identify the factual bases for their conclusions, explain their

methodology, and demonstrate that both the factual bases and the methodology

are reliable.'" Townsend, 221 N.J. at 55 (quoting Landrigan v. Celotex Corp.,

127 N.J. 404, 417 (1992)).

Here, Dr. Stilwell explained in detail the facts supporting the opinions she

offered concerning Meg's parenting, psychological, and behavioral issues; the

bonds between Meg and her children, and the children and their respective

resource parents; and Meg's inability to safely and securely parent her children.

The facts were properly gleaned from Division records; Dr. Stilwell's

psychological and bonding evaluations; Dr. Stilwell's observations of Meg, the

37 A-2802-19
children, and the resource parents; Meg's statements; and other records admitted

in evidence. Dr. Stilwell detailed the objective tests she employed to assess

Meg's psychological issues and the methodology she employed to form the

opinions she related during her testimony. Dr. Stilwell further testified that the

methodology she employed to evaluate Meg and Randall, and to conduct her

bonding evaluations, was in accord with accepted standards in her areas of

expertise. Contrary to Meg's conclusory assertions, Dr. Stilwell provided the

"why and wherefore" of her opinions, which the court properly admitted and

accepted. See Borough of Saddle River, 216 N.J. at 144 (quoting Pomerantz

Paper Corp., 207 N.J. at 372).

Meg also argues Dr. Stilwell's testimony should not have been admitted

because Dr. Stilwell did not consider Meg's completion of a program in her

assessment of Meg's parenting ability and prospect for safely parenting the

children in the future. Meg completed a program subsequent to the

psychological evaluation upon which much of Dr. Stilwell's opinion testimony

was based, but at trial Dr. Stilwell addressed Meg's participation in the program

and explained in detail why it did not change her opinions concerning Meg's

parenting ability or prospects for parenting in the future.

38 A-2802-19
An expert's testimony is not "inadmissible merely because it fails to

account for some particular condition or fact which the adversary considers

relevant." Fin. Servs. Vehicle Tr. v. Panter, 458 N.J. Super. 244, 259 (App. Div.

2019) (quoting State v. Freeman, 223 N.J. Super. 92, 116 (App. Div. 1988)).

"The expert's failure 'to give weight to a factor thought important by an adverse

party does not reduce his [or her] testimony to an inadmissible net opinion if he

[or she] otherwise offers sufficient reasons which logically support his [or her]

opinion.'" Townsend, 221 N.J. at 54 (quoting Rosenberg v. Tavorath, 352 N.J.

Super. 385, 402 (App. Div. 2002)). Rather, an expert's alleged failure to

consider or give appropriate weight to a factor goes to the "weight or

persuasiveness" a fact finder should attribute to the opinion. Fin. Servs. Vehicle

Tr., 458 N.J. Super. at 259.

The fact that Dr. Stilwell did not modify her evaluation of Meg prior to

trial to address Meg's completion of a program did not render Dr. Stilwell's

testimony inadmissible. See Townsend, 221 N.J. at 54. The court appropriately

admitted Dr. Stilwell's expert opinion testimony and gave it the weight to which

the court reasonably determined it was entitled. We reject Meg's claim to the

contrary.

39 A-2802-19
B.

Meg and Randall contend the court erred by finding the Division presented

sufficient evidence satisfying its burden under the first prong of the best-

interests standard. The Law Guardian for Karen and Jasmine does not make a

similar claim. The Division and the Law Guardian for Jason, Jacob, and Heather

argue the Division presented clear and convincing evidence satisfying its burden

as to Meg and Randall as it applies separately to them and each of the children.

To satisfy its burden under the first prong, "the State [must] demonstrate

harm to the child by the parent," which, "in this context, involves the

endangerment of the child's health and development resulting from the parental

relationship." K.H.O., 161 N.J. at 348. The focus is not on a "single or isolated

harm," but "on the effect of harms arising from the parent-child relationship over

time on the child's health and development." Ibid. Prong one "addresses the

risk of future harm to the child as well as past physical and psychological harm."

N.J. Div. of Youth & Fam. Servs. v. H.R., 431 N.J. Super. 212, 222 (App. Div.

2013). "Courts need not wait to act until a child is actually irreparably impaired

by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365,

383 (1999).

40 A-2802-19
The harm may be established by "a delay in establishing a stable and

permanent home." Ibid. "A parent's withdrawal of . . . solicitude, nurture, and

care for an extended period of time is in itself a harm that endangers the health

and development of the child." Id. at 379 (citing K.H.O., 161 N.J. at 352-54).

Additionally, a parent's "persistent failure to perform any parenting functions

and to provide . . . support for [the child] . . . constitutes a parental harm to that

child arising out of the parental relationship [that is] cognizable under N.J.S.A.

30:4C-15.1(a)(1) and (2)." Id. at 380-81. Moreover, "prolonged inattention by

natural parents that permits the development of disproportionately stronger ties

between a child and [resource] parents may lead to a bonding relationship the

severing of which would cause profound harm—a harm attributable to the

natural parents . . . ." In re Guardianship of J.C., 129 N.J. 1, 18 (1992).

Here, the record supports the court's finding Meg and Randall have

harmed and will continue to pose a risk of harm to their respective children. As

the trial court explained in detail, Meg has a significant and consistent history

of relationships characterized by domestic violence with her paramours. During

her relationships with the fathers of her children, Greg and Randall, Meg

committed acts of domestic violence and was victimized by their acts of

domestic violence. Some of the children have witnessed acts of domestic

41 A-2802-19
violence, as well as the injuries Meg suffered over the years as a result of

domestic violence.

The evidence further showed the Division first became involved with Meg

in 2011, when Zack was injured during a domestic violence incident between

Meg and Greg, and Randall has a criminal history related to acts of domestic

violence against other paramours prior to his relationship with Meg.

Additionally, following years of attempts to provide services for Meg and

Randall to address their respective issues with domestic violence, they were

involved in a domestic violence incident with each other and a third party just a

few months prior to the guardianship trial. At various times, Meg and Randall

have rendered themselves unavailable to care for the children because they have

been incarcerated following arrests resulting from domestic violence incidents.

The evidence establishing Meg's and Randall's respective histories of

domestic violence, their ongoing interdependent relationship, and Meg's history

of relying on Greg and Randall for housing, amply supports the court's

determination Meg and Ryan have harmed, and continue to pose a risk of harm

to, their respective children under N.J.S.A. 30:4C-15.1(a)(1). The harm, and

continued risk of harm, is further established by the unrebutted expert testimony

of Dr. Stilwell, who explained that the children's past exposure to domestic

42 A-2802-19
violence, and the risk of exposure to future acts of domestic violence by Meg

and Randall, results in harm to the children and the risk of future harm. 10 See

N.J. Div. of Child Prot. & Permanency v. N.T., 445 N.J. Super. 478, 491 (App.

Div. 2016) (explaining expert testimony may establish a child suffers harm from

exposure to domestic violence). Moreover, neither Meg nor Randall have

adequately addressed the issues that separately cause them to engage in acts of

domestic violence, and, as a result, it can be reasonably anticipated they will

continue to engage in the domestic violence that has characterized their

respective histories. See N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J.

420, 450-52 (2012) (finding a mother presented a risk of harm to her children

when she continued to have a relationship with a father who committed domestic

violence against her and she refused to seek treatment for her mental illnesses

and other parental deficits).

The risk of harm Meg and Randall separately pose to their respective

children was further established by the unrebutted testimony of Dr. Stilwell. She

10
There is evidence Karen, Jasmine, and Jason actually witnessed acts of
domestic violence. There is no evidence Jacob and Heather witnessed acts of
domestic violence, but, as noted, Meg and Randall pose an ongoing risk
exposing them to domestic violence due to their domestic violence histories and
their failures to address the issues giving rise to their proclivities to engage in
domestic violence against each other and their paramours.

43 A-2802-19
explained Meg and Randall both suffer from unresolved psychological issues

that render them incapable of providing a safe and secure home for the children.

Dr. Stilwell opined that Randall lacks the psychological and physical resources

to provide for the protection, safety, nurturing, and guidance of the children. Dr.

Stilwell noted Meg lacked insight into the reasons for the removal of her

children; Meg was emotionally overwhelmed when the demands of parenting

were placed on her; and Meg relied on paramours who, due to domestic violence

issues, present a risk to the children. Dr. Stilwell further opined Meg lacked the

psychological resources to meet her children's needs for safety, protection, and

guidance. Dr. Wells agreed; she opined Meg was presently incapable of safely

parenting her children.

Meg's and Randall's respective issues as detailed by Dr. Stilwell, as well

as their inability to provide housing for their children during the course of their

involvement with the Division, also delayed permanency for each child. Their

persistent and lengthy failures to fulfill their roles and responsibilities to provide

their children with the safe and secure home, guidance, and nurturing every child

deserves "constitutes a parental harm" to each of their children that is

"cognizable under" the first prong of the best-interests standard. D.M.H., 161

N.J. at 380-81. As the trial court correctly found, Meg's and Randall's respective

44 A-2802-19
failures to address the issues that have rendered them each unable to safely

parent their children also caused harm, and present a continuing risk of future

harm, by delaying each child's right to permanency. See id. at 383 (explaining

a parent's delay in providing a "stable and permanent home" constitutes harm

under the first prong of the best-interests standard). That harm alone also

supports the court's finding the Division clearly and convincingly satisfied its

burden under N.J.S.A. 30:4C-15.1(a)(1).

C.

Under the second prong, the Division must establish "[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

prong "is aimed at determining whether the parent has cured and overcome the

initial harm that endangered the health, safety, or welfare of the child, and is

able to continue a parental relationship without recurrent harm to the child."

K.H.O., 161 N.J. at 348. Prong two "can be satisfied by establishing that a

parent is unable to protect a child from the dangers posed by another parent."

F.M., 211 N.J. at 451-52 (finding the Division established prong two when a

parent recanted instances of domestic violence and denied being in a relationship

45 A-2802-19
with a partner who refused to treat his substance abuse issues and mental

illness); see also N.J. Div. of Youth & Fam. Servs. v. F.H., 389 N.J. Super. 576,

617-18, 623 (App. Div. 2007) (holding the Division established prong two as to

one child when the parents refused to acknowledge their role in the unexplained

trauma experienced by that child under their care). The Division may also prove

prong two by establishing "the parent is unable to provide a safe and stable home

for the child and that the delay in securing permanency continues or adds to the

child's harm." K.H.O., 161 N.J. at 348-49.

We agree with the court's finding the Division presented clear and

convincing evidence Meg and Randall are either unwilling or unable to address

and correct the issues that resulted in the removal of their respective children.

Meg argues the court erred because the evidence showed she completed some

services following Dr. Stilwell's evaluation, and that Dr. Stilwell failed to

consider the progress she made in completing the services in her evaluation of

Meg. We are not persuaded.

Meg does not dispute that over the many years she has been involved with

the Division she has been offered innumerable and varied services directed to

addressing the issues that resulted in the removal of her children. The record

shows, however, her compliance with services has been inconsistent. For

46 A-2802-19
example, she consistently failed to utilize the domestic violence liaison that was

offered on many occasions, and she continued to minimize the harm to the

children posed by her unresolved issues related to domestic violence, both as a

victim and as a perpetrator. Meg also ignores that Dr. Stilwell addressed Meg's

completion of some services prior to the trial, but discounted the importance of

the completion because of Meg's long history of not benefitting from services

that were provided. See, e.g., N.J. Div. of Youth & Fam. Servs. v. L.J.D., 428

N.J. Super. 451, 484 (App. Div. 2012) (explaining a parent's long-term effort to

gain the ability to safely parent his or her child must yield "to an expeditious,

permanent placement to promote the child's well-being"). The court had the

benefit of the evidence demonstrating Meg's completion of services and Dr.

Stilwell's testimony concerning how the completion of services did not change

her assessment of Meg. The court accepted as credible Dr. Stilwell's testimony

that although Meg completed some services, she continued her reliance on

Randall, and the evidence otherwise established she is unable to safely parent

her children. We defer to the court's credibility determination and findings of

fact because they are supported by evidence the court deemed credible. See

E.P., 196 N.J. at 104.

47 A-2802-19
Furthermore, the court's findings on prong two as to Meg and Jason and

Jacob are further supported by Dr. Stilwell's unrebutted testimony that the

children would suffer severe and enduring harm if their relationships with their

respective resource parents were severed. See L.J.D., 428 N.J. Super. at 494

(finding an expert's testimony that a child's separation from his resource parents

would cause him "serious and enduring emotional harm" sufficiently satisfied

prong two).

Randall argues he completed an anger management program and a

batterer's intervention program, provided housing for Meg that was suitable for

the children, and had employment and plans for future employment. He

contends that, for those reasons, the court erred by finding he was unwilling or

unable to eliminate the harm to Jacob and Heather. Again, we are not persuaded.

We agree with the Division and the Law Guardian for Jason, Jacob, and

Heather that there is substantial credible evidence supporting the court's

determination that Randall is unwilling or unable to provide the children with a

safe and stable home and the delay of permanent placement will add to the harm.

As the trial court found, Randall's long history of domestic violence with others

and Meg posed an ongoing risk to his children that he consistently minimized

and failed to address. He advised Dr. Stilwell he did not need a batterer's

48 A-2802-19
intervention plan but would participate in an anger management class because it

was "shorter." He denied domestic violence incidents with Meg, even though

she had visible injuries she attributed to him, and he described domestic violence

incidents in his past as "play fight[ing]." He reported completing a batterer's

intervention program, but Dr. Stilwell testified the program was a general

therapy program, not a batterer's intervention program.

Again, the court found Dr. Stilwell's testimony credible, and accepted her

opinion that Randall posed a risk of continuing domestic violence because he

had failed to acknowledge his domestic violence history or adequately complete

services that resolved the issues causing his violence against Meg and others.

Dr. Stilwell further testified Randall's psychological traits and issues render him

incapable of providing Jacob and Heather with the protection, safety, guidance,

and nurturing of a capable parent. That testimony is unrebutted.

Dr. Stilwell's testimony supports the court's finding on the second prong

of the best-interests standard. Randall is incapable of parenting the children,

and his continued resort to domestic violence, and his lack of acknowledgment

of it even after receiving treatment, establishes Randall is unwilling or unable

to eliminate the harm to Jacob and Heather. See, e.g., N.J. Div. of Youth &

Fam. Servs. v. L.M., 430 N.J. Super. 428, 444 (App. Div. 2013) (finding a

49 A-2802-19
parent's continued drug use, failure to attend treatment, and inability to seek

appropriate housing all posed a risk to her children); N.J. Div. of Youth & Fam.

Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996) (finding a parent's

"inability or unwillingness to resolve the problems with respect to her mental

health and substance abuse" satisfied the second prong of the best-interests-of-

the-child standard). 11

D.

Prong three requires that the Division demonstrate it "made reasonable

efforts to provide services to help the parent correct the circumstances which led

to the child's placement outside the home," and that the court "consider[]

alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). Prong

three "contemplates efforts that focus on reunification." K.H.O., 161 N.J. at

354. The services offered must be reasonable under the circumstances and

tailored to the needs of each parent. D.M.H., 161 N.J. at 390. However,

11
We also note Dr. Stilwell's unrebutted testimony that Jacob would suffer
severe and enduring harm if separated from his resource parents, supports the
court's finding of prong two as to Jacob. See L.J.D., 428 N.J. Super. at 494.
The evidence further established Randall had an unstable employment history,
and the status of his housing situation could not be assessed because he would
not provide the Division with his address.

50 A-2802-19
"[e]xperience tells us that even [the Division's] best efforts may not be sufficient

to salvage a parental relationship." F.M., 211 N.J. at 452.

The record supports the court's conclusion the Division provided "a

plethora of services to" Meg and Randall in addressing their respective

circumstances and issues that led to the removal of their children from their

respective care and custody. Additionally, the Division "assessed several

relatives for placement," and none provided an alternative to termination of

Meg's and Randall's parental rights to the children.

Meg does not dispute the Division satisfied its burden of proving it

provided reasonable services to her. Randall asserts the Division failed to

provide reasonable services to assist him in finding suitable housing and

insufficient time with his children to develop a bond. We find the argument

lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

We note only that the Division offered Randall innumerable services,

many of which he either refused or failed to complete. The Division also

referred Randall to a service for housing, but he was rejected because of his

domestic violence history. Randall was also rejected by another housing service

because he was not homeless and his income exceeded the qualification limit,

51 A-2802-19
which meant he was ineligible for the service. Randall also advised the Division

he resided with his girlfriend, but he refused to provide an address, and there

were periods of time he did not remain in contact with the Division. Randall's

claim the Division did not offer him sufficient time with Jacob and Heather is

belied by his inconsistent attendance at the visitations the Division arranged,

and his failure to attend any of the visitations with the children in the months

immediately preceding the guardianship trial. 12

E.

Meg and Randall argue the guardianship order should be reversed because

the Division failed to clearly and convincingly prove termination of their

respective parental rights will not do more harm than good. The Law Guardian

for Karen and Jasmine similarly contends the court erred by finding the Division

satisfied its burden under the fourth prong of the best-interests standard. The

12
We need not address the argument made by the Law Guardian for Karen and
Jasmine that the Division failed to inform the children's resource parents of the
option to care for the children as kinship legal guardians instead of through
adoption. The record lacks evidence establishing the resource parents had the
"biological, legal, extended or committed emotional or psychological
relationship with" the children that is required for a kinship legal guardianship.
N.J. Div. of Child Prot. & Permanency v. M.M., 459 N.J. Super. 246, 260 (App.
Div. 2019) (quoting N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 508
(2004)). Additionally, the issue is moot because Karen and Jasmine are no
longer with the resource parents with whom they resided, and who were
committed to adoption, at the time of the guardianship trial.

52 A-2802-19
Law Guardian for Jason, Jacob, and Heather asserts the Division presented

ample evidence supporting the court's determination. In our consideration of

the arguments presented, we separately consider, as we must, the evidence

presented as to each child and each parent. See M.M., 189 N.J. at 288 ("Parental

rights are individual in nature and due process requires that fitness be evaluated

on an individual basis."); see also A.R., 405 N.J. Super. at 443 (observing "the

four prongs must be evaluated separately as to each child").

"[T]he fourth prong 'serves as a fail-safe against termination even where

the remaining standards have been met.'" R.G., 217 N.J. at 559 (quoting E.P.,

196 N.J. at 108). It "requires that [the Division] prove by clear and convincing

evidence that '[t]ermination of parental rights will not do more harm than good.'"

N.J. Div. of Youth & Fam. Servs. v. I.S., 202 N.J. 145, 180-81 (2010) (second

alteration in original) (quoting N.J.S.A. 30:4C-15.1(a)(4)). In deciding if the

Division has proved prong four, the court must determine "whether, after

considering and balancing the two relationships, the child will suffer a greater

harm from the termination of ties with [his or] her natural parents than from the

permanent disruption of [his or] her relationship with [his or] her [resource]

parents." K.H.O., 161 N.J. at 355; see also F.M., 211 N.J. at 453-54 (holding

termination of the defendant's parental rights would not do more harm than good

53 A-2802-19
where the child's attachment to the resource parent was stronger than the child's

attachment to the legal parent); N.J. Div. of Child Prot. & Permanency v.

N.C.M., 438 N.J. Super. 356, 372-73 (App. Div. 2014) (concluding the Division

satisfied the fourth prong with expert testimony that the children had developed

a "secure[] attach[ment]" to their resource parent but had only an "insecure

attachment" to their legal parent).

Our Supreme Court has explained that "[t]o satisfy the fourth prong, the

State should offer testimony of a well[-]qualified expert who has had full

opportunity to make a comprehensive, objective, and informed evaluation of the

child's relationship with both the natural parents and the [resource] parents."

F.M., 211 N.J. at 453 (quoting M.M., 189 N.J. at 281). An important factor

under the fourth prong, is "[a] child's need for permanency," ibid. (alteration in

original) (quoting M.M., 189 N.J. at 281), because "a child has a right to live in

a stable, nurturing environment and to have the psychological security that his

[or her] most deeply formed attachments will not be shattered," ibid.

We first address the termination of Meg's parental rights to Jason, Jacob,

and Heather, and the termination of Randall's parental rights to Jacob and

Heather, because those children were in pre-adoptive homes at the time of trial,

and we have not been advised those circumstances changed following the

54 A-2802-19
guardianship order. We next consider the termination of Meg's parental rights

to Karen and Jasmine because the parties do not dispute that Karen's and

Jasmine's placements changed following the trial, and we have pending before

us Meg's motion to remand the case to the trial court for reconsideration of the

judgment of guardianship as to Karen and Jasmine.

The evidence supports the court's finding the Division clearly and

convincingly established the termination of Meg's parental rights to Jason,

Jacob, and Heather, and Randall's parental rights to Jacob and Heather, will not

do more harm than good. The court accepted Dr. Stilwell's testimony that

although Jason and Jacob had attachments to Meg, they did not view her as their

parental figure, and they each had a secure relationship with their resource

parents, who they viewed as their psychological parents and who are committed

to adoption. Dr. Stilwell explained Jason and Jacob would both suffer severe

and enduring harm if their relationships with their resource parents were severed

and that Meg is unable to mitigate the harm they will suffer if their respective

relationships with their resource parents end because Meg continues to be unable

to safely parent them.

Dr. Stilwell similarly testified that Jacob has a "familiarity" with Randall,

but Jacob did not view Randall as a primary attachment figure. Dr. Stilwell

55 A-2802-19
explained that Jacob views his resource parent as a "significant and central

parental figure," and considers his resource parent his psychological parent.

According to Dr. Stilwell, termination of Randall's parental rights would cause

a minimal disruption in Jacob's life, but termination of his relationship with his

resource parent would result in severe and enduring harm to the child. The

evidence also demonstrated Randall is unable to mitigate any harm caused by

the termination of Jacob's relationship with his resource parent because Randall

is incapable of safely parenting the child and will remain incapable in the

foreseeable future.

Dr. Stilwell noted that Meg's and Randall's respective absences in

Heather's life due to their respective inabilities to properly parent the child

support the conclusion that Heather does not have a secure bond with either of

her parents. Dr. Stilwell further reasoned that Heather enjoys a significant

attachment to her resource parent who has cared for, nurtured, and provided a

home for the child since her birth. See, e.g., I.S., 202 N.J. at 182 (finding expert

testimony based on a comparison of bonding evaluations is not required in an

instance involving a "common sense notion that [a] child will be more bonded

with his [or her resource] parents than with [the] defendant"); see also N.C.M.,

438 N.J. Super. at 372-73 (finding an expert's unrebutted opinion that the

56 A-2802-19
children were "securely attached" to the resource parent but had an "insecure

attachment" to the parent proved prong four). Moreover, and again, neither Meg

nor Randall can mitigate the harm that will befall Heather if her relationship

with her resource parent ends because they each remain incapable of properly

parenting their children. See B.G.S., 291 N.J. Super. at 593 (noting a child's

need for permanency and a parent's inability to provide a safe and secure home

for the child in the foreseeable future support a finding that termination of

parental rights will not do more harm than good).

We separately address the court's finding the Division clearly and

convincingly established that termination of Meg's parental rights to Karen and

Jasmine will not do more harm than good. Meg and the Law Guardian for Karen

and Jasmine first contend the evidence presented at trial did not support the

court's finding.

Based only on the evidence presented at trial, we would conclude the

court's determination that the termination of Meg's parental rights would not do

more harm than good is again supported by the testimony of Dr. Stilwell, who

the court found credible. She testified that, based on her bonding evaluations,

Meg had relationships with Karen and Jasmine that were insecure; Karen and

Jasmine were developing strong relationships with the resource parents with

57 A-2802-19
whom they had been residing for a few months; and termination of Meg's

parental rights would provide Karen and Jasmine with an opportunity for

permanency which Meg did not offer, and would be incapable of providing for

the foreseeable future. Dr. Wells offered a different view of Karen's and

Jasmine's respective relationships with Meg, but the court found Dr. Stilwell's

testimony more credible and persuasive. Thus, if our decision concerning the

Division's proofs on the fourth prong was limited to the trial evidence, we would

discern no basis to reverse the court's determination.

In her pending motion to supplement the record and vacate the

guardianship order, Meg contends that a remand is required for reconsideration

of the court's finding on the fourth prong as to Karen and Jasmine. Meg claims

that an important factor in the court's analysis of the fourth prong—the putative

permanency of a resource home committed to adoption—is no longer extant. As

noted, subsequent to the entry of the guardianship order, Karen and Jasmine

were removed from the resource home committed to adoption in which they

resided at the time of trial and were placed in separate resource homes. Karen

was later moved twice to new placements.

We agree with Meg that it is appropriate to vacate the guardianship order

as to the court's prong four determination as to Karen and Jasmine. The trial

58 A-2802-19
court's finding on prong four as to those two children is founded in part on the

permanency that Karen's and Jasmine's then-resource parents offered through

their commitment to adopt the children. In its balancing of the effects of a

termination of Meg's parental rights to the children, the court noted that any

harm either child might suffer from the termination of their relationship with

Meg "would be mitigated by continued therapy and the presence of their

resource parents." The putative permanency offered at the time by Karen's and

Jasmine's resource parents was essential to the court's determination the

Division satisfied its burden under the fourth prong. Indeed, Dr. Stilwell

testified in part that termination of Meg's parental rights to the children would

not do more harm than good because of the stability and security that was to be

provided by the putative adoptive parents. Moreover, it was the absence of a

resource home committed to adoption for Zack, and his limited prospects for a

select home adoption, that caused the court to conclude the Division failed to

sustain its burden under prong four as to Meg and him.

Karen's and Jasmine's placements subsequent to the entry of the

guardianship order require a reexamination of the fourth prong as to Meg and

the two children. The current record, even as supplemented by Meg's motion,

does not provide the reasons for the changes in placement, the children's status

59 A-2802-19
in their current placements, their prospects for adoption with their current

resource parents or otherwise, or the Division's permanency plan based on the

children's current circumstances. That information is essential to a

determination whether, based on the children's changed circumstances, the

termination of Meg's parental rights will cause the children more harm than

good.

We are mindful Karen and Jasmine have been in placement for many years

and "a child's need for permanency is an extremely important consideration

pursuant to" the fourth prong. R.G., 217 N.J. at 559. The evidence established

Meg's longstanding parental unfitness and that she will be unable to properly

parent the children in the foreseeable future. Termination of parental rights

based on parental unfitness, and not on a child's bond with his or her resource

family, requires a prong four determination of the child's need for permanency

and the parent's ability—or inability—to provide the child with a safe and stable

home "in the foreseeable future." B.G.S., 291 N.J. Super. at 593. But it is

"recognized that terminating parental rights without any compensating benefit,

such as adoption, may do great harm to a child." E.P., 196 N.J. at 109. The

harm may result "when a child is cycled through multiple [resource] homes after

a parent's rights are severed," ibid., and that harm "may be greater than keeping

60 A-2802-19
the parent-child relationship intact since the child's psychological and emotional

bond to the parent may have been broken with nothing substituted in its place,"

ibid. (quoting N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J 591, 611

(1986)).

"A court should hesitate to terminate parental rights in the absence of a

permanent plan that will satisfy the child's needs." B.G.S., 291 N.J. Super. at

593; see A.W., 103 N.J. at 611 (acknowledging the "unfortunate truth that not

all children, who are 'freed' from their legal relationship with their parents, find

the stable and permanent situation that is desired even though this is the implicit

promise made by the State when it seeks to terminate the parent-child

relationship" (quoting In re Angelia P., 623 P.2d 198, 210 (Cal. 1981))). We

hesitate here because we cannot properly determine for the first time on appeal

that termination of Meg's parental rights will not do more harm than good where

we lack evidence and a full record concerning the significant change in

circumstances concerning the children's respective placements and their current

prospects for permanency through adoption. We also cannot affirm the

termination of Meg's parental rights because both children have bonds, albeit

insecure ones, with Meg, and the record as supplemented permits only a

determination that the promise of permanency with the children's former

61 A-2802-19
resource parents, which the court found essential to its prong four determination,

has been unfulfilled. 13 The court must consider the entire record, as well as any

evidence related to the circumstances following entry of the guardianship order,

to properly determine whether the Division has clearly and convincingly

established termination of Meg's parental rights to each child, with or without

the child's placement in an adoptive home, will not do more harm than good.

We therefore vacate the guardianship order terminating Meg's parental

rights to Karen and Jasmine. We remand for the court to determine whether the

termination of Meg's parental rights to Karen and Jasmine will not do more harm

than good under N.J.S.A. 30:4C-15.1(a)(4). 14 The court shall allow such

discovery and expeditiously conduct such proceedings it deems appropriate to

make the determination. The court shall make separate prong four

determinations as to Karen and Jasmine based on the evidence presented. If the

court determines termination of Meg's parental rights will not do more harm

than good as to a child, the court shall enter a final guardianship order as to that

13
We note Karen testified at trial that she preferred residing with Meg, if she
could obtain housing, over the then-intended adoption by her resource parents.
14
As noted, we affirm the court's findings the Division clearly and convincingly
established prongs one, two, and three as they relate to the termination of Meg's
parental rights to Karen and Jasmine.

62 A-2802-19
child. If the court determines the Division failed to sustain its burden to clearly

and convincingly satisfy prong four as to a child, the court shall enter an order

dismissing the Division's complaint for guardianship as to that child.

In sum, we affirm the guardianship order terminating Meg's parental rights

to Jason, Jacob, and Heather, and terminating Randall's parental rights to Jacob

and Heather. We affirm the court's determination the Division carried its burden

of presenting clear and convincing evidence establishing the first three prongs

of the best-interests standard supporting the termination of Meg's parental rights

to Karen and Jasmine. We vacate the guardianship order as to the termination

of Meg's parental rights to Karen and Jasmine, and remand for reconsideration

of the fourth prong of the best-interests standard as to Karen and Jasmine in light

of the information concerning their changed placements that was provided

following entry of the guardianship order and for which we have granted leave

to supplement the record on appeal. On remand, the court shall permit and

conduct such proceedings and hearings it deems appropriate to allow the parties

to fully address the circumstances relevant to a proper consideration of the

fourth prong of the standard. Nothing in this opinion shall be construed as an

opinion on the merits of the issues to be addressed on remand.

63 A-2802-19
Affirmed as to A-2805-19. As to A-2802-19, affirmed in part, vacated in

part, and remanded for further proceedings consistent with this opinion. We do

not retain jurisdiction. 15

15
As to M-2543-20, we grant the motion to supplement the record. Given our
disposition of the appeal on the merits, we deny as moot Meg's motion to vacate
the guardianship order as to Karen and Jasmine and remand for further
proceedings. We shall enter a separate order reflecting our disposition of the
motion.

64 A-2802-19

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4709652. Public record. Not legal advice.