                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NOS. A-0446-17T4
                                                                     A-0449-17T4

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

          Plaintiff-Respondent,

v.

D.H. and N.T.,

     Defendants-Appellants.
_______________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF C.H., N.H., and A.H., Minors.
_______________________________________

                    Submitted October 11, 2018 – Decided October 22, 2018

                    Before Judges Accurso, Vernoia and Moynihan.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Monmouth County,
                    Docket No. FG-13-0092-16.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant D.H. (Eric R. Foley, Designated Counsel, on
                    the brief).
            Joseph E. Krakora, Public Defender, attorney for
            appellant N.T. (Kisha M. Hebbon, Designated Counsel,
            on the brief).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Melissa H. Raksa, Assistant Attorney
            General, of counsel; Joshua P. Bohn, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minors (Nancy P. Fratz, Assistant Deputy
            Public Defender, on the brief).

PER CURIAM

      In these appeals, which have been consolidated for this opinion,

defendants N.T. (Nancy) 1 and D.H. (Derek) appeal from a Family Part order

terminating their parental rights to their biological children, four-year-old A.H.

(Abby), three-year-old N.H. (Norman), and one-year-old C.H. (Cory). Because

we agree with the New Jersey Division of Child Protection and Permanency, as

well as the Law Guardian, that there is substantial credible evidence supporting

the court's determination that termination of defendants' parental rights is in the

children's best interests, we affirm.

      The evidence at the guardianship trial showed that the Division first

became involved with defendants in December 2013 based on a referral that


1
  We employ initials and pseudonyms to protect the privacy of the children and
for ease of reference.
                                                                           A-0446-17T4
                                        2
Derek and Nancy, who was pregnant, were at a soup kitchen and appeared

homeless and in need of services. Six months later, the Division received a

second referral that Derek, Nancy and Abby were being evicted from their home

and had no place to live.

      In September 2014, the Division received a third referral concerning

Nancy and Abby's living conditions, a lack of food and Nancy leaving Abby in

the care of Nancy's cousin, who had a history of substance abuse and an open

case with the Division. At that time, Nancy denied recent drug use but agreed

to a substance abuse evaluation because she wanted to avoid a relapse. Derek

refused to provide his home address and admitted using marijuana to ease his

anxiety and depression. It was recommended that defendants undergo substance

abuse and psychological evaluations.

      A December 2014 forensic assessment determined Nancy is a "a low

functioning adult" and recommended that she undergo cognitive testing, a

psychiatric evaluation, parenting skills services and psychotherapy.          The

Division also received a referral from a hospital that Abby smelled like cigarette

smoke when Nancy appeared and sought prenatal care because she was pregnant

with Norman, who was due the following month. The Division further received




                                                                          A-0446-17T4
                                        3
a referral that two men were observed smoking marijuana while Abby was in

their care and Nancy was not present.

      On December 19, 2014, the Division filed a verified complaint seeking

the care and supervision of Abby due to Nancy's cognitive limitations and

concomitant inability to supervise, protect and plan for Abby, and Derek's

substance abuse and failure to comply with services. The court entered an order

granting the Division care and custody of Abby.

      The court granted the Division's emergency removal of Norman

immediately following his birth in January 2015. The Division placed Norman

in the same resource home as Abby. Twenty-two months later, Cory was born.

The court granted care and custody of Cory to the Division, which placed the

child in the same resource home as his siblings.

      During the guardianship trial, the Division presented the testimony of the

two caseworkers and Dr. Elise Landry, who was qualified as an expert in

psychology, child rearing, child abuse and neglect, and parenting competency.

Dr. Landry conducted psychological and bonding evaluations of Nancy and

Derek and a bonding evaluation of the children's resource mother.

      Nancy presented the testimony of Dr. Andrew Brown, who was qualified

as an expert in psychology with a specialty in neuropsychology. Dr. Brown


                                                                        A-0446-17T4
                                        4
conducted a psychological and neuropsychological evaluation of Nancy. Derek

did not present any witnesses.

      In his oral opinion following the presentation of evidence, Judge Terence

P. Flynn made detailed factual findings, addressed each element of the best-

interests-of-the-child standard set forth in N.J.S.A. 30:4C-15.1(a) and concluded

the Division sustained its burden of proving by clear and convincing evidence it

was in the children's best interests to terminate Nancy and Derek's parental

rights. He entered a September 8, 2017 judgment of guardianship terminating

defendants' parental rights to their three children. This appeal followed.

      Nancy offers the following arguments for our consideration:

            POINT I

            THE TRIAL COURT ERRED IN FINDING THAT
            THE BEST INTERESTS TEST OUTLINED IN
            N.J.S.A. 30:4C-15.1[(a)] WAS PROVEN BY CLEAR
            AND CONVINCING EVIDENCE.

            A. Introduction.

            B. There Was No Clear and Convincing Evidence To
            Support the Finding That C.H., N.H., and A.H.'s Safety,
            Health, Or Development Has Been Or Will Continue
            To Be Endangered By The Parental Relationship.

            C. There Was No Clear and Convincing Evidence To
            Support The Finding That [Nancy] Is Unwilling Or
            Unable To Eliminate The Harm Facing C.H., N.H., And


                                                                         A-0446-17T4
                                        5
            A.H. Or Is Unable To Provide A Safe And Stable Home
            For C.H., N.H., And A.H.

            D. There Was No Clear And Convincing Evidence To
            Support The Finding That [The Division] Made
            Reasonable Efforts To Provide Services To Help
            [Nancy] Correct The Circumstances Which Led To
            C.H., N.H. And A.H.'s Placement Outside Of The
            Home.

            E. There Was No Clear and Convincing Evidence To
            Support The Finding That Termination Of [Nancy's]
            Parental Rights Would Not Cause More Harm Than
            Good.

      Derek makes the following arguments:

            POINT I

            THE JUDGMENT OF GUARDIANSHIP SHOULD
            BE REVERSED BECAUSE [THE DIVISION]
            FAILED   TO  PROVE  BY  CLEAR    AND
            CONVINCING EVIDENCE THAT IT PROVIDED
            REASONABLE      EFFORTS     TOWARDS
            REUNIFICATION.

            POINT II

            [THE DIVISION] FAILED TO PROVE BY CLEAR
            AND     CONVINCING     EVIDENCE    THAT
            TERMINATION OF PARENTAL RIGHTS WILL
            NOT DO MORE HARM THAN GOOD.

      Our review of a trial court order terminating parental rights is limited.

N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "A

Family Part's decision to terminate parental rights will not be disturbed when

                                                                       A-0446-17T4
                                      6
there is substantial credible evidence in the record to support the court's

findings." N.J. Div. of Child Prot. & Permanency v. K.T.D., 439 N.J. Super.

363, 368 (App. Div. 2015) (citing N.J. Div. of Youth & Family Servs. v. F.M.,

211 N.J. 420, 448 (2012)). "We accord deference to factfindings of the family

court because it has the superior ability to gauge the credibility of the witnesses

who testify before it and because it possesses special expertise in matters related

to the family." F.M., 211 N.J. at 448 (citing Cesare v. Cesare, 154 N.J. 394, 413

(1998)). This enhanced deference is particularly appropriate where the court's

findings are founded upon the credibility of the witnesses' testimony. N.J. Div.

of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005)

(citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484

(1974)).

      "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide

of the mark' should an appellate court intervene and make its own findings to

ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs.

v. E.P., 196 N.J. 88, 104 (2008) (quoting G.L., 191 N.J. at 605). No deference

is given to the trial court's "interpretation of the law," which we review de novo.

D.W. v. R.W., 212 N.J. 232, 245-46 (2012).




                                                                           A-0446-17T4
                                        7
      A parent has a constitutionally protected right "to enjoy a relationship with

his or her child." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). That

right, however, "is not absolute" and is limited "by the State's parens patriae

responsibility to protect children whose vulnerable lives or psychological well-

being may have been harmed or may be seriously endangered by a neglectful or

abusive parent." F.M., 211 N.J. at 447 (citing E.P., 196 N.J. at 102). A parent's

interest must, at times, yield to the State's obligation to protect children from

harm. See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397

(2009).

      When terminating parental rights, the court must consider the "best

interests of the child." K.H.O., 161 N.J. at 347. The Division's petition to

terminate parental rights may only be granted if the following four prongs

enumerated in N.J.S.A. 30:4C-15.1(a) are established by clear and convincing

evidence:

            (1) The child's safety, health, or development has
            been or will continue to be endangered by the parental
            relationship;

            (2) The parent is unwilling or unable to eliminate the
            harm facing the child or is unable or unwilling to
            provide a safe and stable home for the child and the
            delay of permanent placement will add to the harm.
            Such harm may include evidence that separating the
            child from his resource family parents would cause

                                                                           A-0446-17T4
                                        8
            serious and enduring emotional or psychological harm
            to the child;

            (3) The division has made reasonable efforts to
            provide services to help the parent correct the
            circumstances which led to the child's placement
            outside the home and the court has considered
            alternatives to termination of parental rights; and

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

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

"The four criteria enumerated in the best interests standard are not discrete and

separate; they relate to and overlap with one another to provide a comprehensive

standard that identifies a child's best interests." K.H.O., 161 N.J. at 348. "[T]he

cornerstone of the inquiry [under N.J.S.A. 30:4C-15.1(a)] is not whether the

biological parents are fit but whether they can cease causing their child harm."

In re Guardianship of J.C., 129 N.J. 1, 10 (1992) (citing N.J. Div. of Youth &

Family Servs. v. A.W., 103 N.J. 591, 607 (1986)).

      Nancy argues the court erred by finding the Division presented clear and

convincing evidence as to each prong of the best-interests standard.            We

disagree. Judge Flynn conducted the required fact-sensitive analysis of the

statutory factors. See K.H.O., 161 N.J. at 348.         The record supports his

determination that although Nancy's limited level of cognitive functioning alone


                                                                           A-0446-17T4
                                        9
does not render her unable to care for her children, the children's safety, health

and development are endangered by the parental relationship with Nancy

because she has "the functioning capability . . . of a second grader," a lack of

support from a partner, inadequate financial resources and housing, untreated

mental health issues, three children to care for and a demonstrated reluctance to

take advantage of various services offered by the Division. The court accepted

Dr. Landry's testimony, found Dr. Brown's testimony was not credible, and

determined Nancy lacked the ability to address the numerous issues that

rendered her unable to safely parent her children, and that termination of Nancy's

parental rights would not do more harm than good to the children. We defer to

Judge Flynn's detailed findings because they are supported by substantial

credible evidence. See K.T.D., 439 N.J. Super. at 368.

      Derek argues there is insufficient evidence supporting the court's findings

on the third and fourth prongs of the best interests standard.       We are not

persuaded.   Judge Flynn's finding that the Division provided Derek with

numerous and ongoing services to ameliorate the mental health, substance

abuse, housing and lack of parenting skills issues that rendered him unable to

safely parent the children is supported by substantial credible evidence. See

F.M., 211 N.J. at 448. Similarly, Judge Flynn's conclusion that termination of


                                                                          A-0446-17T4
                                       10
Derek's parental rights will not do more harm than good is supported by Dr.

Landry's testimony that there is a minimal parental bond between Derek and the

children, a strong bond between the children and their long-time resource mother

and the children will suffer lasting harm if they are removed from the resource

mother's care, but will not suffer any harm by the termination of Derek's parental

rights.

      We therefore affirm substantially for the reasons set forth in Judge Flynn's

comprehensive and well-reasoned oral decision.

      Affirmed.




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                                       11
