                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2673-17T3

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

          Plaintiff-Respondent,

v.

T.C.,

          Defendant-Appellant,

and

J.D.,

     Defendant.
______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF S.D.,

     a Minor.
______________________________

                    Submitted December 10, 2018 – Decided December 27, 2018

                    Before Judges Messano and Fasciale.
            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Morris County,
            Docket No. FG-14-0028-17.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Phuong V. Dao, Designated Counsel, on the
            briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jason W. Rockwell, Assistant Attorney
            General, of counsel; Sara M. Gregory, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Maria E. Borges, Assistant Deputy
            Public Defender, on the brief).

PER CURIAM

      Defendant T.C. (the father) appeals from a February 1, 2018 order

terminating his parental rights to S.D. (the child), born in 2010. Judge Maritza

Berdote Byrne presided over the trial, entered the order under review, and

rendered a forty-page written opinion. The father contends primarily that the

Division of Child Protection and Permanency (the Division) failed to sustain its

burden of proof. We disagree and affirm.




                                                                        A-2673-17T3
                                       2
      After the police arrested the mother for her involvement in a sting

operation, the Division performed a Dodd 1 removal when the child was

approximately five-years-old. At this point in the child's life, the father – who

did not know he was the father "until after a while had passed" – had seen him

about three times. The father suffers from an alcohol problem and lacks insight

into the child's needs, and thus was unable to provide the child with a permanent,

safe, and stable home. As a result, the Division placed the child with resource

parents, who want to adopt him.

      The governing law is settled. Parents have a constitutionally-protected

right to the care, custody and control of their children. Santosky v. Kramer, 455

U.S. 745, 753 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999).

However, that right is not absolute. N.J. Div. of Youth & Family Servs. v. R.G.,

217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.

591, 599 (1986). At times, a parent's interest must yield to the State's obligation

to protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M., 198

N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To



1
 A "Dodd removal" refers to the emergency removal of a child from the home
without a court order pursuant to N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd
Act. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).


                                                                           A-2673-17T3
                                        3
effectuate these concerns, the Legislature created a test for determining when a

parent's rights must be terminated in a child's best interests.

      To obtain parental termination, N.J.S.A. 30:4C-15.1(a) requires that the

Division prove by clear and convincing evidence the following four prongs:

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

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

            (3) The [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.

The four prongs of the test are not "discrete and separate," but "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.




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                                         4
      Our review of a family judge's factual findings is limited. Cesare v.

Cesare, 154 N.J. 394, 411 (1998). "When a biological parent resists termination

of his or her parental rights, the [trial] court's function is to decide whether that

parent has the capacity to eliminate any harm the child may already have

suffered, and whether that parent can raise the child without inflicting any

further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81,

87 (App. Div. 2006). The factual findings, which undergird such a judgment,

"should not be disturbed unless 'they are so wholly insupportable as to result in

a denial of justice,' and should be upheld whenever they are 'supported by

adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269

N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Inv'rs

Ins. Co., 65 N.J. 474, 483-84 (1974)). "[T]he conclusions that logically flow

from those findings of fact are, likewise, entitled to deferential consideration

upon appellate review." R.L., 388 N.J. Super. at 89. There exists substantial

credible evidence in the record to support the judge's findings as to all four

prongs. We briefly summarize those findings.

      For the first prong, the judge found that the father had a chronic untreated

alcohol abuse problem, and that he lacked insight into the child's needs. He has




                                                                             A-2673-17T3
                                         5
not provided a stable environment for the child, and when the father visited with

the child, the visits caused the child to suffer from anxiety.

      The second prong of the best interests test requires the Division to present

clear and convincing evidence that "[t]he parent . . . 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). The relevant

inquiry for the trial court is whether the parent has cured and overcome the initial

harm that endangered the child, and "is able to continue a parental relationship

without recurrent harm to the child." K.H.O., 161 N.J. at 348.

      The judge found that the father's "significant substance abuse issue ha[d]

not been remedied." She also found that "both prior to [the child's] removal and

after [he] was placed in resource care, [the father] . . . acted minimally and

without any sense of urgency with respect to [the child's] needs." Despite

believing he was the child's father, he refused to engage in any services until the

Division established paternity. Once paternity was confirmed, he "took more

than a year to obtain suitable housing, failed to visit with [the child] for a period

of six months and admitted he was lax in communicating with the Division." It

took him sixteen months to submit a parenting plan, and eighteen months to take

a parenting class. He did not contact the child's therapist or teachers despite


                                                                             A-2673-17T3
                                         6
being encouraged to do so. And during this time, he continued using alcohol.

The judge concluded that the father's lack of insight was unlikely to change in

the foreseeable future and would add to the delay of permanently placing the

child in his care.

      The third prong requires evidence that "[t]he [D]ivision has made

reasonable efforts to provide services to help the parent correct the

circumstances which led to the child's placement outside the home and the court

has considered alternatives to termination of parental rights." N.J.S.A. 30:4C -

15.1(a)(3).   "Reasonable efforts may include consultation with the parent,

developing a plan for reunification, providing services essential to the

realization of the reunification plan, informing the family of the child's progress,

and facilitating visitation." N.J. Div. of Youth & Family Servs. v. M.M., 189

N.J. 261, 281 (2007). However, "[t]he diligence of [the Division]'s efforts on

behalf of a parent is not measured by their success." In re Guardianship of

D.M.H., 161 N.J. 365, 393 (1999).

      The judge found that the father first engaged in Division services in

January 2016, only after he received the paternity test result. The Division

provided him with psychological and substance abuse evaluations. The Division

also met with the father and "developed written family agreements" addressing


                                                                            A-2673-17T3
                                         7
necessary services, such as adequate housing, a suitable parenting plan,

attendance at AA meetings, and engagement with the child's doctor and therapist

to understand his needs. The Division offered the father "family team meetings,

evaluations, parenting classes, and access to [the child's] doctors and teachers,"

but he "failed to avail himself of these services until the very last possible

moment and, in some circumstances, not at all." The judge further found that

the Division considered alternatives to termination of the father's parental rights,

including placing the child with family and friends, all of whom indicated that

they could not care for the child.

      Under the fourth prong, the court must ask whether "after considering and

balancing the two relationships, the child will suffer a greater harm from the

termination of ties with [his] natural parents than from the permanent disruption

of [his] relationship with [his] foster parents." K.H.O., 161 N.J. at 355. This

prong "cannot require a showing that no harm will befall the child as a result of

the severing of biological ties." Ibid. "The overriding consideration under this

prong remains the child's need for permanency and stability." N.J. Div. of Youth

& Family Servs. v. L.J.D., 428 N.J. Super. 451, 491-92 (App. Div. 2012).

      The judge found the testimony of Dr. Maureen Santina, an expert in

psychology and substance abuse, "the most compelling and accurate because the


                                                                            A-2673-17T3
                                         8
two other experts accepted [the father]'s self-report of long term sobriety and

did not consider [his] use of alcohol to be a factor in determining his capacity to

parent." The judge concluded that the other experts "incorrectly focused" on the

father's past driving while intoxicated offenses instead of his current use of

alcohol or the effectiveness of his prior substance abuse treatment.

      The judge agreed with Dr. Santina that the father "exhibited a substantial

level of denial and persistent pattern of minimization regarding his substance

abuse." The father contradicted himself regarding his consumption of alcohol,

his belief whether he had an alcohol problem, and his lack of effective treatment.

Although he "reported extensive involvement in AA," he still consumed alcohol

and remained unfamiliar with details of the program.

      The judge also agreed with Dr. Santina that the father did not understand

the child's needs. As Dr. Santina testified, the child's history of trauma and

consequent PTSD made him "hypersensitive" to a lack of predictability and

required enhanced stability, security, consistency, and empathy. If his needs

were not met, he was likely to experience elevated levels of anxiety, depression,

anger, and social aggression. The father did not have the capacity to meet the

child's needs, whereas the child derived safety and security from his resource

parents.   The judge accepted Dr. Santina's testimony that if the child was


                                                                           A-2673-17T3
                                        9
separated from his resource parents he would suffer severe and enduring harm

that the father could not ameliorate.       By contrast, terminating the father's

parental rights would have a minimal impact on the child, and his resource

parents were capable of mitigating any harm.

      The judge found that the findings of Dr. Eric Kirschner, an expert in

clinical psychology, bonding, and parenting assessment, "were consistent" with

Dr. Santina's. Dr. Kirschner testified that the child had a strong bond with his

resource parents, but not with the father. Removing the child from his resource

parents would be psychologically harmful in the short-term and long-term

because it would create disruption and anxiety, which would exacerbate the

child's PTSD. Dr. Kirschner likewise recommended that the child remain with

his resource parents.

      The court found that the conclusions of the father's expert, Dr. James

Reynolds, "were not contrary" to the other two experts. He opined that the child

would suffer "some harm" if the father's parental rights were terminated, and

lesser harm if he was removed from his resource parents. Dr. Reynolds testified

that the child did not view the father as his psychological parent, and agreed that

the resource parents could mitigate the harm to the child from terminating the




                                                                           A-2673-17T3
                                       10
father's parental rights.   Thus, as the judge noted, Dr. Reynolds's and Dr.

Santina's testimony differed, but was not necessarily in conflict.

      The judge concluded that "all three experts opined [the child] has a secure

attachment with his resource parents and the resource parents would be able to

mitigate any harm resulting from the termination of [the father's] parental

rights." Thus, she found that the Division proved by clear and convincing

evidence that termination of the father's parental rights would not do more harm

than good to the child.

      Affirmed.




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