                                      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                                NOT FOR PUBLICATION WITHOUT THE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-5169-17T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

M.L.,

          Defendant-Appellant,

and

U.W. and A.B.,

     Defendants.
_____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF Y.W.,
AD.B., MAK.L., and E.L.,

     Minors.
______________________________

                    Submitted September 23, 2019 – Decided October 7, 2019

                    Before Judges Fasciale, Moynihan and Mitterhoff.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Monmouth County,
            Docket No. FG-13-0070-17.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Deric D. Wu, Assistant Deputy Public
            Defender, of counsel and on the brief).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jason Wade Rockwell, Assistant Attorney
            General, of counsel; Joann Marie Corsetto, Deputy
            Attorney General, on the brief).

            Joseph E. Krakora, Public Defender, attorney for
            minors (Melissa R. Vance, Assistant Deputy Public
            Defender, on the brief).

PER CURIAM

      Defendant M.L. (the mother) appeals from a June 22, 2018 order

terminating her parental rights to four of her five children: (1) Y.W. (Yolanda),

born in 2004; (2) E.L. (Edward), born in 2007; (3) Ad.B. (Ashley), born in 2011;

and (4) Mak.L. (Michael), born in 2016. 1 The mother, who did not attend the

trial, argues that the Division of Child Protection and Permanency (Division)

did not prove by clear and convincing evidence prong four of the statutory best



1
  We use pseudonyms to protect confidentiality. Defendant U.W., the father of
Yolanda and Edward, has not appealed from the termination of his parental
rights. Defendant A.B., Ashley's father, made a voluntary identified surrender
of his parental rights. Michael's father is unknown. Defendant's fifth child is
not involved in this action.
                                                                         A-5169-17T2
                                       2
interests of the child standard under N.J.S.A. 30:4C-15.1(a)(4). We disagree

and affirm.

      In January 2013, the Division received a referral that Yolanda had not

attended school for two months. The Division investigated, and the mother

admitted that she did not enroll Yolanda in school when the family moved in

with the maternal grandmother. The mother's plan was to stay with family

members until she obtained independent housing, for which she had been

searching. With assistance from the Division, the mother enrolled Yolanda in

school.   The Division found the allegations of educational neglect were

unfounded. It then closed the case because there were no concerns for the

children's health or safety.

      About eighteen months later, the Division received another referral. This

allegation was that the mother was using drugs, and the children were not

regularly attending school or receiving necessary medical care. The Division

investigated the referral and determined that the allegations were unfounded, but

endeavored to assist the family.

      The mother continued struggling with housing solutions. In February

2015, police officers responded to a call that the mother and her children had no

place to sleep, and that they needed help in finding a place to stay for the night.


                                                                           A-5169-17T2
                                        3
The officers assisted the family by returning them to the maternal grandmother's

apartment.

      The housing problems continued. In May 2015, the Division received an

allegation that the mother had moved five times in the past year, from relative

to relative and motel to motel. The caller said the mother only had enough

money to stay at the current motel until the end of the week, and Yolanda had

missed a lot of school.

      The Division investigated these allegations, and the mother acknowledged

that the children had been missing school because of a lack of transportation

from the motel. She stated that she was not working. The mother further

expressed that she had exhausted the housing and financial assistance available

to her from the government, which the Division confirmed with the Board of

Social Services. The Division paid motel expenses for the family. It provided

transportation assistance when the mother and her family stayed with various

relatives.

      About a month later, during the Division's ongoing involvement with the

family, the Division received a report that Ashley's father ripped a corn row out

of Ashley's scalp and threatened to kill the mother and her family. The Division

investigated the report and found the allegations had not been established by a


                                                                         A-5169-17T2
                                       4
preponderance of the evidence. However, the mother obtained a restraining

order against Ashley's father and moved to a domestic violence shelter with

Ashley; Yolanda and Edward later joined them.

        The domestic violence shelter worked to find transitional housing for the

mother upon her discharge and extended her stay pending resolution of her

housing application with Family Promise. The shelter was unable to extend the

mother's stay after Family Promise rejected her application, and the mother's

housing problems continued. In September 2015, the Division removed the

children because the shelter evicted the mother, and her family had no place to

live.

        The mother threatened suicide, and a hospital admitted and treated her for

depression. While there, the mother learned that she was pregnant, and she told

her Division caseworker that the pregnancy was the result of a sexual assault.

In mid-September 2015, the hospital discharged the mother, and she started

living with a relative. She did not participate in the recommended outpatient

treatment.

        In January 2016, the mother gave birth to Michael. The Division removed

Michael from the mother's care because she was unprepared for his arrival. She

did not have stable housing, nor did she remediate the mental health concerns


                                                                          A-5169-17T2
                                         5
previously noted by the Division. The Division continued supervising and

providing services to the family. The mother's situation, however, did not

substantially improve.     In August 2016, she progressed to unsupervised

overnight weekend visits in addition to continued weekday visits with her

children. But the mother did not take the children out of the motel room,

including during her visit over the entire Thanksgiving weekend. The children

were bored, and sometimes Ashley or Yolanda declined visits. The Division

offered the mother transportation assistance during the visits and passes to a

nearby park, but she never took advantage of these offers.

      In August 2016, the Division received another referral. This time, the

Division learned that the mother went to work and left the children alone during

their overnight and unsupervised visitation. The Division investigated, and it

concluded that the mother left the children alone for fewer than two hours,

during which she communicated with Yolanda by phone. Because of Yolanda's

cognitive delays, the Division was concerned that the mother left Yolanda in

charge of the younger children. Nevertheless, the Division found the allegations

of neglect and inadequate supervision were not established, so the mother's visits

remained unsupervised.




                                                                          A-5169-17T2
                                        6
      The mother's mental health remained an issue. The Division scheduled

the mother for a psychological evaluation in 2016, but she refused to attend.

The mother did not regularly attend therapy, and she was noncompliant with her

antidepressant medications. In June 2017, the mother told her caseworker that

she had no health insurance and could not pay for counseling or medication

management. The Division provided assistance by reinstating these services.

However, the mother remained noncompliant.

      Inadequate housing remained a problem too.          The Division gave the

mother housing assistance, but she was uncooperative. She never obtained

housing suitable for herself and the children. Instead, she lived either in a motel

or with relatives who were unable to accommodate her family because the

relatives did not have enough room for the mother's children.

      In addition, the Division provided the mother with assistance in obtaining

her GED, including free tutoring and transportation.         But she never took

advantage of this assistance. The Division also sought out family support for

the mother, attempting to facilitate dialogue between her and her siblings.

However, once again, the mother was uncooperative. The Division helped the

mother find work, and although she found work at a factory as of April 2016,

she was unemployed by June 2017.                 Thereafter, in approximately


                                                                           A-5169-17T2
                                        7
January/February 2018, the Division learned that the mother was working at a

factory in Pennsylvania.

      Around January 2017, the mother expressed thoughts of suicide and

received emergency mental health treatment. Although the Division continued

offering services to address the mother's mental health problems, she did not

participate in the referred long-term care.    Her mental health issues and

inadequate housing continued while the children lived at the placements.

      In August 2017, Yolanda and Ashley were moved to a pre-adoptive

resource home. In October 2017, Michael was moved to the same resource

home. The resource parent included Edward in family outings and vacations

with his siblings, and she expressed an interest in taking Edward into her home

and adopting all four children.       In March 2018, the mother stopped

communicating with the Division and stopped attending visitation with the

children.

      The mother never offered any possible relative placements for the

children. The Division considered placing the children with U.W.'s mother, but

ruled her out due to prior substantiations with the Division. The Division

considered placement with U.W.'s significant other, but ruled her out due to

outstanding criminal matters. The Division also considered the mother's sister,


                                                                       A-5169-17T2
                                      8
but ruled her out because she did not want to care for the children. Therefore,

there were no viable family placement options.

      Judge Kondrup-Coyle conducted the trial. Division caseworkers Jorge

Agosto, Fernanda Valerio, Dayna Roselli, and Kristen Shannon testified. They

stated that the concerns that led the Division to seek the termination of the

mother's parental rights related to the mother's failure to remediate her mental

health issues and her chronic homelessness. The Division produced testimony

from its psychological expert, Dr. David Brandwein, who provided opinion

testimony as to his evaluations.

      Dr. Brandwein diagnosed the mother with major depressive disorder,

recurrent and severe, with anxious distress, as well as post-traumatic stress

disorder.   He also found that she had paranoid, schizoid, and avoidant

personality features. He opined that the mother was unable to safely parent her

children due to her persistent housing problems, her unstable employment, and

her failure to acknowledge or address her mental health issues, which negatively

affected her day-to-day functioning.

      Regarding bonding, Dr. Brandwein had no doubt that the mother loved

her children, and they loved her. But he found few signs of a secure bond

between the mother and her children. The three older children knew who their


                                                                        A-5169-17T2
                                       9
mother was, but in the doctor's opinion, their interactions with her were not

consistently indicative of a parent-child bond. The youngest child did not appear

to have a bond with the mother at all.

      Dr. Brandwein opined that, should the mother's parental rights be

terminated, Yolanda, Edward, and Ashley would suffer a transitory grief

reaction that could be remediated through therapy and their relationship with the

resource parent. He did not believe the children would suffer enduring harm.

As for Michael, Dr. Brandwein did not believe he would have any reaction

should his relationship with the mother be terminated. Dr. Brandwein believed

it was in the children's best interests for the mother's parental rights to be

terminated so the Division could seek permanency for them. In his opinion,

delaying permanency would exacerbate the children's feelings of uncertainty

and cause them further harm.

      In Brandwein's opinion, "a positive, reciprocal relationship [was]

developing between [the resource parent] and the three minor children" in her

care. He believed that over time they would develop a secure bond and that the

resource parent, who had expressed her willingness to adopt all four children,

was capable of supporting the children into adulthood.         Thus, the doctor

recommended that the Division seek permanency for all four children with the


                                                                         A-5169-17T2
                                         10
resource parent. In June 2018, Edward was placed in the same resource home

as his siblings.

      The judge found that the Division proved all four prongs of the statutory

standard by clear and convincing evidence. As to the first three prongs, the

judge found that the mother had been unable to provide the children with a safe

and stable home, and she continued to be unable to do so, notwithstanding the

Division's extensive efforts to assist her in obtaining treatment for her mental

health issues, a GED, employment, and housing. Also, the judge found that the

children would be harmed by further delays in permanency. In the judge's

opinion, "there's no word big enough for how much the Division did in this

case," but the mother "did not want the help" because her depression negatively

affected every aspect of her life. Moreover, the judge found that the mother had

"shut down completely," as she stopped visiting her children and attending court

proceedings.

      The applicable law and standard of review are well settled. "Parents have

a constitutional right to raise their children." N.J. Div. of Youth & Family Servs.

v. F.M., 211 N.J. 420, 447 (2012). But, "that right is not absolute." Ibid. "It is

a right tempered by the State's parens patriae responsibility to protect children

whose vulnerable lives or psychological well-being may have been harmed or


                                                                           A-5169-17T2
                                       11
may be seriously endangered by a neglectful or abusive parent." Ibid. (emphasis

in original).

      Under N.J.S.A. 30:4C-15.1(a), the Division

                shall initiate a petition to terminate parental rights on
                the grounds of the "best interests of the child" . . . if the
                following standards are met:

                (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 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.

"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." In re Guardianship of K.H.O.,


                                                                                A-5169-17T2
                                            12
161 N.J. 337, 348 (1999). Accord F.M., 211 N.J. at 448; N.J. Div. of Youth &

Family Servs. v. I.S., 202 N.J. 145, 166-67 (2010); N.J. Div. of Youth & Family

Servs. v. P.P., 180 N.J. 494, 506 (2004).

      When parents contest the termination of their parental rights, the court's

function is to decide whether the parents can raise the child without causing

further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "The burden

falls on the State to demonstrate by clear and convincing evidence that the

natural parent has not cured the initial cause of harm and will continue to cause

serious and lasting harm to the child." Ibid.

      "Because of the elemental nature of the parent-child relationship, and

recognizing that the severing of that relationship is among the most 'severe and

. . . irreversible' forms of state action, . . . 'all doubts must be resolved against

termination of parental rights.'" N.J. Div. of Youth & Family Servs. v. E.P., 196

N.J. 88, 102-03 (2008) (citations omitted). "Severing the ties between a child

and a parent" must be viewed as "a weapon of last resort in the arsenal of state

power." F.M., 211 N.J. at 447.

      As to prong four – the sole challenge by the mother – the Division must

prove by clear and convincing evidence that "[t]ermination of parental rights

will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). This prong


                                                                             A-5169-17T2
                                        13
"serves as a fail-safe against termination even where the remaining standards

have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609

(2007).

      It does not require "a showing that no harm will befall the child as a result

of the severing of biological ties." K.H.O., 161 N.J. at 355. Rather, the question

to be addressed is whether, "after considering and balancing" the relationships

between the children and the biological parent, and the children and the resource

parent, the children will suffer greater harm from the termination of ties with

the biological parent than from the permanent disruption of their relationship

with the resource parent. Ibid.

      In engaging in this analysis, the court should be cognizant of the children's

need for permanency. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527,

559 (2014); K.H.O., 161 N.J. at 357-58. Also, the court must consider the

permanency plan offered by the Division. N.J. Div. of Youth & Family Servs.

v. A.W., 103 N.J. 591, 610-11 (1986). "Ultimately, a child has a right to live in

a stable, nurturing environment and to have the psychological security that his

most deeply formed attachments will not be shattered." F.M., 211 N.J. at 453.

Therefore, the Division may establish the fourth prong where the biological

parent remains unable to care for the children in the foreseeable future, and


                                                                           A-5169-17T2
                                       14
termination will provide the children an opportunity for permanency. N.J. Div.

of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996).

      Of course, our review of a trial court's termination of parental rights is

limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007).

An appellate court must uphold the trial court's factual findings if they are

supported by adequate, substantial, credible evidence in the record. F.M., 211

N.J. at 448-49; M.M., 189 N.J. at 279. Moreover, the trial court's findings as to

witness credibility are entitled to particular deference due to its superior ability

to evaluate the veracity of witnesses who testify before it. R.G., 217 N.J. at 552;

F.M., 211 N.J. at 448; M.M., 189 N.J. at 279.

      As to prong four, the mother argues that the Division failed to prove by

clear and convincing evidence that termination of her parental rights would not

do more harm than good. She contends that she had a loving relationship with

her children, the children did not have a secure bond with their resource parent,

and the only thing preventing family reunification was her lack of housing,

which was caused by her poverty. We reject these contentions and affirm

substantially for the reasons given by Judge Kondrup-Coyle.           We add the

following brief remarks.




                                                                            A-5169-17T2
                                        15
      The judge found that Dr. David Brandwein was credible. She agreed with

his conclusion that the bond between the mother and the children was

deteriorating because of her failure to meet their needs and her failure to be

consistently present in their lives. The judge agreed with Dr. Brandwein's

conclusion that the children were developing a bond with the resource parent,

and he endorsed the Division's plan for the children to be placed together to

achieve permanency with the resource parent.

      The record supports the judge's conclusion that termination of the mother's

parental rights would not do more harm than good. Dr. Brandwein's testimony

supports the conclusion that the children do not have a secure parent-child bond

with the mother. Additionally, the evidence shows that, at the time of trial, the

mother had withdrawn from the children's lives.         She was not attending

visitation, she was no longer involved in mental health treatment, and she had

no plan for providing for her children.

      Dr. Brandwein also emphasized the children's need for permanency,

which could be achieved through the Division's plan for the children to be

adopted by the resource parent. At the time of trial, the groundwork for a strong

bond between all four children and the resource parent had existed, and the

resource parent committed to adopting them. Since their removal from the


                                                                         A-5169-17T2
                                      16
mother in September 2015, the three older children have received therapy. In

addition, Edward has worked with a mentor, and Yolanda and Ashley have

received interventions addressing their educational delays.

      Affirmed.




                                                                     A-5169-17T2
                                      17
