                                      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                                NOT FOR PUBLICATION WITHOUT THE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-3664-18T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

M.O.,

          Defendant,

and

T.S.,

     Defendant-Appellant.
_____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF A.O.S.
and A.O.S.,

     Minors.
_____________________________

                    Submitted January 13, 2020 – Decided January 21, 2020

                    Before Judges Fasciale and Moynihan.
              On appeal from the Superior Court of New Jersey,
              Chancery Division, Family Part, Bergen County,
              Docket No. FG-02-0053-18.

              Joseph E. Krakora, Public Defender, attorney for
              appellant (Robert A. Veasey, Deputy Public Defender,
              of counsel; Anastasia P. Winslow, Designated Counsel,
              on the briefs).

              Gurbir S. Grewal, Attorney General, attorney for
              respondent (Sookie Bae, Assistant Attorney General, of
              counsel; Sandra L. Ostwald, Deputy Attorney General,
              on the brief).

              Joseph E. Krakora, Public Defender, Law Guardian,
              attorney for minors (Joseph Hector Ruiz, Designated
              Counsel, on the brief).

PER CURIAM

       Defendant T.S. (the mother) appeals from an April 10, 2019 order

terminating her parental rights to Am.O.S. (Amilia) and Ar.O.S. (Ariel) (the

children), twin daughters with special needs born in 2017, and awarding

guardianship in favor of the Division of Child Protection and Permanency (the

Division).1    Judge Jane Gallina-Mecca presided over the trial, entered the

judgment, and rendered a seventy-page written opinion.

       The mother, who did not attend trial or produce any evidence, raises the

following arguments:


1
    Pseudonyms are used to protect the children's privacy. R. 1:38-3(d)(12).
                                                                         A-3664-18T2
                                        2
POINT [I]

THIS COURT SHOULD EXERCISE DE NOVO
REVIEW TO RULE THE [JUDGE] ERRED IN
CONCLUDING THAT [THE DIVISION] PROVED
ALL FOUR PRONGS OF N.J.S.A. 30:4C-15.1(A) BY
CLEAR AND CONVINCING EVIDENCE AS THE
[JUDGE] RELIED PRIMARILY UPON A PAPER
RECORD.

POINT [II]

THE [JUDGE] ERRED IN RULING THAT [THE
DIVISION] PROVED PRONG ONE OF N.J.S.A.
30:4C-15.1(A) BY CLEAR AND CONVINCING
EVIDENCE AS THERE WAS NOT SUBSTANTIAL
CREDIBLE EVIDENCE IN THE RECORD THAT
[THE MOTHER] HARMED HER CHILDREN AND
[THE      DIVISION'S] EXPERT   REPORTS
CONFIRMED SHE DID NOT POSE AN IMMINENT
RISK OF HARM TO THEM.

POINT [III]
THE [JUDGE] ERRED IN RULING THAT [THE
DIVISION]    PROVED,  BY   CLEAR    AND
CONVINCING EVIDENCE, THAT [THE MOTHER]
IS UNABLE OR UNWILLING TO ELIMINATE ANY
HARM FACING THE CHILDREN OR UNABLE TO
PROVIDE A SAFE AND STABLE HOME FOR THE
CHILDREN UNDER PRONG TWO OF N.J.S.A.
30:4C-15.1(A) AS [THE DIVISION] EXPERT
REPORTS ALL STATED [THE MOTHER] COULD
PARENT THE CHILDREN.

POINT [IV]

THE [JUDGE] ERRED IN RULING THAT [THE
DIVISION] PROVED PRONG THREE OF N.J.S.A.

                                               A-3664-18T2
                     3
           30:4C-15.1(A) BY CLEAR AND CONVINCING
           EVIDENCE      BECAUSE  [THE DIVISION'S]
           EFFORTS IN PROVIDING SERVICES TO [THE
           MOTHER] WERE SHOCKINGLY DEFICIENT.

           A. The record reflects that [the Division] did not heed
           expert recommendations for services, ignored [the
           mother's] pleas for help, erected obstacles to [the
           mother's] reunification, and repeatedly took the
           position that [the mother's] adolescent case was closed
           while it violated its own policies as to adolescent case
           closure and provision of services for homeless youth.

           B. The [judge] further erred in ruling there were no
           alternatives to termination.

           POINT [V]

           THE [JUDGE] ERRED IN RULING THAT [THE
           DIVISION] PROVED PRONG FOUR OF N.J.S.A.
           30:4C-15.1(A) BY CLEAR AND CONVINCING
           EVIDENCE AS THE [JUDGE] LOOKED ONLY TO
           THE QUANTITY OF TIME [THE MOTHER] SPENT
           WITH THE [CHILDREN] DURING HER PERIOD OF
           HOMELESSNESS RATHER THAN LOOKING TO
           THE COMPLETE RECORD AND THE QUALITY OF
           HER BOND.

We disagree and affirm.2




2
   We have also reviewed and considered the mother's reply brief dated
December 2, 2019.
                                                                      A-3664-18T2
                                      4
                                        I.

      We begin our discussion with the well-settled legal framework regarding

the termination of parental rights. 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

effectuate these concerns, the Legislature created a test to determine when it is

in the child's best interest to terminate parental rights.    To secure parental

termination, N.J.S.A. 30:4C-15.1(a) requires the Division to 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 [her] resource family parents would cause

                                                                           A-3664-18T2
                                        5
            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 [judge] has considered
            alternatives to termination of parental rights; and

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

See also A.W., 103 N.J. at 604-11. 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. "The considerations involved in determinations of parental fitness are

'extremely fact sensitive' and require particularized evidence that address the

specific circumstances in the given case." Ibid. (quoting In re Adoption of

Children by L.A.S., 134 N.J. 127, 139 (1993)).

      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 [judge'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,


                                                                          A-3664-18T2
                                        6
87 (App. Div. 2006). The factual findings that support 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.

of Am., 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.

                                        II.

      We now turn to the mother's argument that the judge erred in finding that

the Division proved each of the four prongs under the best interests test by clear

and convincing evidence. We disagree with her contentions, and as to the four

prongs, we affirm substantially for the reasons given by the judge. We add the

following.

                                        A.

      The first prong requires the Division to prove that "[t]he child's safety,

health, or development has been or will continue to be endangered by the

parental relationship[.]" N.J.S.A. 30:4C-15.1(a)(1). "Although a particularly

egregious single harm can trigger the standard, the focus is on the effect of harms


                                                                           A-3664-18T2
                                        7
arising from the parent-child relationship over time on the child's health and

development." K.H.O., 161 N.J. at 348. "[T]he attention and concern of a caring

family is 'the most precious of all resources.'" In re Guardianship of D.M.H.,

161 N.J. 365, 379 (1999) (quoting A.W., 103 N.J. at 613). "[W]ithdrawal 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." Ibid.

      The judge found that the children's health and development were

endangered by the mother's "substance abuse, untreated mental health issues,

and instability." After the children were born prematurely, the mother led a

transient lifestyle, moving from shelter to shelter, and as the judge noted, "[h]er

untreated mental health issues caused her to disrupt her housing situation[,]

moving the medically challenged infants from place to place." The judge found

that she further harmed the children by not maintaining consistent visitation with

them since their removal, thereby depriving them of a parent-child relationship.

                                        B.

      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


                                                                           A-3664-18T2
                                        8
inquiries for the judge are whether the parent cured and overcame the initial

harm that endangered the child, and whether the parent is able to continue the

parental relationship without recurrent harm to the child. K.H.O., 161 N.J. at

348-49. To satisfy its burden, the Division must show continued harm to the

child because the parent is unable or unwilling to remove or overcome the harm.

N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 483 (App.

Div. 2012). The first and second prongs are related, and often, "evidence that

supports one informs and may support the other as part of the comprehensive

basis for determining the best interests of the child." D.M.H., 161 N.J. at 379.

      "Parental unfitness may also be demonstrated if the parent has failed to

provide a 'safe and stable home for the child' and a 'delay in permanent

placement' will further harm the child." K.H.O., 161 N.J. at 352 (quoting

N.J.S.A. 30:4C-15.1(a)(2)). "Keeping [a] child in limbo, hoping for some long

term unification plan, would be a misapplication of the law." N.J. Div. of Youth

& Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001).

      As to prong two, the judge found that the mother is unable to achieve

sustained compliance with services, complete substance abuse treatment, and

maintain stable housing. The judge found that the mother is incapable of safely




                                                                         A-3664-18T2
                                       9
parenting the children due to her lack of stable housing and her failure to address

her mental health and substance abuse issues.

                                        C.

      As to prong three, N.J.S.A. 30:4C-15.1(a)(3) requires the Division to

make "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 to "consider[] alternatives to termination of parental rights[.]" The judge

found that the Division provided defendants with a plethora of services, which

we need not repeat here.

      The judge found the Division consistently and repeatedly made referrals

and offered services to assist the mother, who was herself previously in the

Division's care as a minor. After she turned eighteen, the Division continued to

provide services, while the mother was still pregnant.           It arranged for

psychological evaluations, homemaker services, psychiatric evaluations,

domestic violence treatment, housing at Rainbow House (where she was

discharged for failure to cooperate with the program), substance abuse

treatment, and transportation for visitation, among other services. The judge

also found there were no alternatives to termination of parental rights. The




                                                                           A-3664-18T2
                                       10
Division explored family members in and out of New Jersey who were ruled out

as possible placement options.

                                        D.

      The fourth prong of the best interests test requires a determination that the

termination of parental rights "will not do more harm than good." N.J.S.A.

30:4C-15.1(a)(4). The judge must ask whether "after considering and balancing

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

of ties with her natural parents than from the permanent disruption of her

relationship with her 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." L.J.D., 428 N.J.

Super. at 491-92. "Ultimately, a child has a right to live in a stable, nurturing

environment and to have the psychological security that [her] most deeply

formed attachments will not be shattered." N.J. Div. of Youth & Family Servs.

v. F.M., 211 N.J. 420, 453 (2012). "A child cannot be held prisoner of the rights

of others, even those of his or her parents. Children have their own rights,

including the right to a permanent, safe and stable placement." N.J. Div. of

Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004).


                                                                           A-3664-18T2
                                       11
      As to the fourth prong, the judge concluded that the uncontroverted

evidence demonstrated that termination of parental rights would not do more

harm than good. The judge determined that the children needed permanency,

which can be achieved with the resource parents. Relying on expert testimony,

the judge found that the resource parents are the children's central parental love

and identification figures. The children perceive the resource parents as their

psychological parents, and they can meet the children's special needs⸺for

example, one of the children suffers from torticollis and requires physical and

occupational therapy and developmental intervention, and receives treatment by

an orthopedist, craniologist, gastroenterologist, and physiatrist.     The judge

found the resource parents meet the physical and emotional needs of the

children, and they provide the children the love and nurture that they need to

flourish.

      Affirmed.




                                                                          A-3664-18T2
                                       12
