                                       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                                 NOT FOR PUBLICATION WITHOUT THE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-2421-17T2
                                                                      A-2424-17T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

           Plaintiff-Respondent,

v.

Y.R. and J.D.R.,

     Defendants-Appellants.
_____________________________

THE MATTER OF THE
GUARDIANSHIP OF J.R.,

     a Minor.
_____________________________

                    Submitted May 15, 2019 – Decided June 10, 2019

                    Before Judges Alvarez and Reisner.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Middlesex County,
                    Docket No. FG-12-0063-17.
              Joseph E. Krakora, Public Defender, attorney for
              appellant Y.R. (Andrew Robert Burroughs, Designated
              Counsel, on the briefs).

              Joseph E. Krakora, Public Defender, attorney for
              appellant J.D.R. (John Andrew Albright, Designated
              Counsel, on the briefs).

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

              Joseph E. Krakora, Public Defender, Law Guardian,
              attorney for minor (Meredith Alexis Pollock, Deputy
              Public Defender, of counsel; Cory Hadley Cassar,
              Designated Counsel, on the brief).

PER CURIAM

        Defendants Y.R. (Mary), 1 the child's mother, and J.D.R. (Tom), the child's

father, appeal from a January 10, 2018 order terminating their parental rights to

their son, J.R. (Sam), who was approximately seventeen years old during the

time of trial. Sam was born with severe physical and cognitive disabilities,

which will prevent him from living independently.           He is currently in a

specialized resource home, is maintaining his weight after a three-year dramatic

failure to thrive documented in the medical records introduced by the Division

of Child Protection and Permanency (Division) at trial, his epilepsy has


1
    We employ pseudonyms when referring to the parties to protect their privacy.
                                                                           A-2421-17T2
                                         2
improved, and his cognitive skills, albeit limited, are improving. We affirm

termination, substantially for the reasons stated by Judge Michael J. Nelson in

his twenty-page written decision issued the same date as the judgment. His

factual findings are fully supported by the evidence, as is his assessment of

witness credibility, and the weight he accorded expert testimony. Based on

those findings, his legal conclusion that the Division had met all four prongs of

the statutory test for termination of parental rights by clear and convincing

evidence warrants affirmance.

                                       I.

      We summarize the extensive record of pretrial proceedings and seven days

of trial testimony. The Division became involved with the family in 2004, when

their now-emancipated three older children lived at home. Those contacts

initially involved only the older children, not Sam. By 2011, however, the

Division had also become involved in Sam's care, providing services to the

family, including a referral to the Division of Developmental Disabilities and

the suggestion of a school setting better suited to Sam's needs. In December

2012, the Division obtained an order granting the agency care and supervision

for Sam, while physical custody remained with defendants.




                                                                         A-2421-17T2
                                       3
      Beginning in approximately 2014, Sam's weight dropped to dangerous

levels, the fourth percentile for a child his age and height. Lab work conducted

during one of his several hospitalizations indicated that his seizure medication

was significantly below therapeutic range. The Division continued to extend

services, and ultimately closed its file when Mary agreed to be responsible for

Sam's medical care and to take him to medical appointments. Tom did not

engage with caseworkers.

      Thereafter, caseworkers learned that Mary was locking Sam in his

bedroom after school until the following morning, she claimed for his own

protection. When in the summer of 2015 Sam was admitted to the hospital for

three weeks, at age fifteen, he weighed seventy pounds. The Division learned

then that Sam was actually capable of eating a far greater range of foods than

Mary claimed. School records for that time period indicate that Sam would on

occasion steal food from other students and take food out of the garbage.

      When hospitalized in 2015, testing on Sam's blood levels established that

his seizure medication was again far below therapeutic levels. During his three-

week hospital stay, Sam gained twenty-eight pounds, regained his ability to

walk, and his seizures eased slightly. The hospital physician who provided care

concluded that Sam was being physically neglected and emotionally abused—


                                                                        A-2421-17T2
                                       4
not just because of his dangerous weight loss and the fact he had not been given

his medication—but also because of the family's practice of locking him in his

bedroom after school.

      Caseworker notes from that summer indicate that when asked about

Mary's practice, Tom acknowledged that Mary kept Sam locked in his bedroom

but said he did not know why. He also insisted that Mary was the only person

who administered Sam's seizure medications, and that he believed she did so.

Accordingly, the Division conducted an emergency removal. 2 When served

written notice regarding the court date after the removal, Tom responded: "I

can't go to court on the 18th because of my job. Can you reschedule for the

week of the 31st?"

      Sam lived in a residential setting from August 2015 to May 2016. During

that time, his condition much improved, although ultimately, he was asked to

leave the facility because of an incident during which he attacked staff. It bears

mention that during this residential placement, it was learned that Sam was

higher functioning than Mary reported. He was not blind, not deaf, could


2
  A "Dodd removal" is an emergency removal without court order or consent of
a parent or guardian, New Jersey Division of Youth & Family Services v.
P.W.R., 205 N.J. 17, 26 n.11 (2011), where "continuance in . . . the care and
custody of the parent or guardian presents an imminent danger to the child's life,
safety, or health." N.J.S.A. 9:6-8.29(a).
                                                                          A-2421-17T2
                                        5
communicate albeit in a limited fashion, sit unassisted, and eat. Sam was placed

with a resource family in July 2016. At the time, Sam weighed 150 pounds, as

compared with 70 pounds a year earlier.

      Both parents began to visit commencing in August 2016, although the

issues that had been documented earlier continued. Tom and Mary had difficulty

feeding Sam, keeping him clean, and administering his seizure medication. Tom

knew that Sam suffered from seizures, but was unaware that his son had been

diagnosed with an epilepsy disorder until several months before the

guardianship hearing began.

      The Division's bonding expert opined the child's psychological parents

were the resource family. They are willing to adopt him. The Division also

presented testimony from a parental capacity expert, who concluded that

termination was the only alternative because Mary viewed herself as having

done nothing wrong, and complained that after ten years of services, the

Division had done nothing to help her.

      Even Tom's expert, who did not recommend immediate reunification,

acknowledged that returning Sam to Tom's care would require supportive

services. Tom's expressed plan, were custody to be placed with him, was for

Mary to continue to care for Sam during the day. If she were unavailable, he


                                                                        A-2421-17T2
                                         6
planned to obtain assistance from a suitable agency because he intended to

continue to work.

      Although there is an attachment between the parents and their child, the

Division's experts found a disconnect between Mary and Sam, more so than Sam

and his father. Mary had little tolerance or appreciation of Sam's needs. Tom

is affectionate with his child, but he has never administered his medications, and

he has little understanding of the level of care he requires.

      The judge found that the Division had proven all four prongs by clear and

convincing evidence as to both parents. See N.J.S.A. 30:4C-15.1(a). With

regard to prong one, the judge found that Sam "was subjected to medical neglect

due to the lack of adequate feeding and the lack of proper anti-seizure

medication, and emotional abuse due to the child being locked in his room and

isolated from his family." Mary had been repeatedly instructed regarding Sam's

seizure medication but failed to administer it while insisting she did so.

Obviously, Tom

            failed to protect [Sam] from . . . prolonged failure to
            thrive. No one intervened regarding [Sam] being
            locked in his room, ensuring that he was adequately fed
            and ensuring that he was adequately medicated when
            his seizure activity increased. [Tom] testified on his
            own behalf that he attempted to feed [Sam] pudding,
            but sometimes he would not eat it and he did not know
            what to do.

                                                                          A-2421-17T2
                                        7
      With regard to prong two, the judge found that Tom would rely on Mary,

despite the fact Tom "confirmed his wife stopped giving [Sam] his medication."

Tom could not answer questions regarding the child's physical needs and his

medication requirements. Tom merely insisted he was not responsible for his

son's weight loss, denying any responsibility for Sam's failure to thrive even

though Tom lived in the home at the relevant time. The judge also noted that,

except for individual counseling, Tom did not follow even the recommendations

his own expert made that could have led to reunification. While Mary simply

did not "appreciate her son's medical needs[,]" Tom was simply "unreasonable"

in his failure to adequately plan for Sam's care if the child returned to his

custody.

      Overall, the parents were therefore simply unable or unwilling to "correct

the circumstances that led to the removal of their son." Since delay in permanent

placement would harm the child, and Tom and Mary cannot provide him with a

safe and stable home, prong two was satisfied.

      With regard to prong three, the judge reviewed the extensive services the

Division provided to the parents, the fact they received transportation assistance,

including bus and train passes, but were unable to benefit from any services.

Their failure to modify their behavior so they could provide their child with a


                                                                           A-2421-17T2
                                        8
safe and nurturing environment was not the result of any failure on the part of

the Division.

        With regard to the final prong, whether termination would do more harm

than good, the judge observed all the experts acknowledged that Tom and Mary

at present lacked the capacity to parent Sam. As he said, "they are not likely to

become viable parenting options, or viable permanency options, in the

foreseeable future." Sam "is thriving in his resource home and he is happy and

secure there." Given that his parents cannot minimally feed and medicate him,

much less provide a nurturing environment, the judge opined that Sam's best

interests were to remain in the resource home where he had lived and

significantly improved for two years. Termination would not do more harm than

good.

                                        II.

        On this appeal, Tom presents the following points:

              I.    TERMINATION    OF   THE   FATHER'S
                    PARENTAL RIGHTS TO HIS NOW ADULT
                    SON WAS ERROR AND POINTLESS UNDER
                    PRONG FOUR OF THE STATUTORY TEST,
                    AS DCPP DOES NOT HAVE THE
                    AUTHORITY TO CONSENT TO ADULT
                    ADOPTIONS, LEAVING NO DISCERNABLE
                    COMPENSATING BENEFIT.



                                                                         A-2421-17T2
                                        9
       A.   There is no possibility [Sam] will be
            adopted because he is no longer a minor
            and DCPP lacks the authority to consent to
            his adoption by others, therefore, there is
            no compensating benefit to the termination
            of parental rights, which will do more harm
            than good.

II.    THE LOWER COURT DID NOT CONSIDER
       ALTERNATIVES TO TERMINATION OF
       PARENTAL RIGHTS TO SATISFY PRONG
       THREE: THE CARE [SAM] NEEDS DID NOT
       REQUIRE TERMINATION OF HIS FATHER'S
       PARENTAL RIGHTS – [SAM] NEEDED DDD
       SERVICES.

III.   IN THE CASE OF EIGHTEEN YEAR OLD
       [SAM], WHO SUFFERS FROM CEREBRAL
       PALSY    AND     OTHER      SERIOUS
       CONDITIONS, THERE IS NO EVIDENCE IN
       THE RECORD TO SUPPORT THE PRONG
       TWO REQUIREMENT THAT A DELAY IN
       "PERMANENT" PLACEMENT WILL HARM
       HIM, OR THAT SEPARATION FROM
       FOSTER CARE WILL CAUSE SEVERE AND
       ENDURING HARM.

       A.   It is beyond the scope of DCPP's statutory
            mandate to establish "permanency" for a
            severely disabled adult by terminating
            parental rights, and [Sam] does not require
            any such permanency in the form of
            adoptive foster care.

       B.   The second prong is also unsatisfied
            because DCPP did not meet its burden to
            prove that separating [Sam] from his foster


                                                          A-2421-17T2
                         10
                  parent would cause severe and enduring
                  harm.

      IV.   [TOM] DID NOT INFLICT ANY HARM ON
            [SAM], WHO IS NOW AN ADULT
            SUFFERING FROM CEREBRAL PALSY AND
            OTHER    SERIOUS   CONDITIONS,   IN
            LEAVING HIM IN HIS MOTHER'S CARE
            WHILE HE WORKED FULL-TIME FOR
            THIRTY YEARS TO SUPPORT THE FAMILY.

            A.    The trial judge's naked prong one
                  conclusion as to [Tom] is not tethered to
                  any recitation of facts, law and reasoning
                  and explanation.

            B.    The trial judge's bald conclusion [Tom]
                  somehow harmed [Sam] is unsupported by
                  the record and directly contrary to [another
                  judge's] conclusion he did not abuse or
                  neglect [Sam].

On this appeal, Mary presents the following points:

      AS THE STATE FAILED TO PROVE ALL FOUR
      PRONGS UNDER N.J.S.A. 30:4C-15.1(a), THE
      TRIAL COURT WAS WRONG WHEN IT
      TERMINATED [MARY'S] PARENTAL RIGHTS TO
      HER SON.

      (1) As the trial court failed to consider whether
      [Sam]'s dramatic change of behavior in 2015 was the
      contributing cause of his weight loss, despite [Mary's]
      efforts to seek treatment for her son, it erred when it
      found the State satisfied its burden under prong one.




                                                                 A-2421-17T2
                               11
            (2) As the trial court failed to consider [Mary]'s
            efforts to alleviate her son's medical condition, it erred
            in finding the State had satisfied prong two.

            (3) Because DCPP failed to provide services tailored
            to a family attempting to meet the needs of an autistic
            child, the trial court erred in finding the State had
            satisfied prong three.

            (4) As the trial court failed to seriously consider
            whether gradual reunification was feasible, it erred in
            finding prong four was satisfied.

                                       III.

      Our review of the Family Part judge's decision in a guardianship case is

limited. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014).

"[T]he trial court's factual findings should be upheld when supported by

adequate, substantial, and credible evidence." Ibid. We accord deference to

factual findings of the Family Part given its "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." N.J. Div. of Youth & Family Servs.

v. F.M., 211 N.J. 420, 448 (2012). We do not overturn a family court's findings

unless they are "so wide of the mark that the judge was clearly mistaken." N.J.

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

to initiate termination of parental rights is guided by analysis of the following:



                                                                           A-2421-17T2
                                       12
            (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.

            [N.J.S.A. 30:4C-15.1(a)(1)-(4).]

We will discuss each prong in turn.

                                       A.

      We consider Tom and Mary's arguments related to prong one to be so

lacking in merit as to not warrant much discussion in a written decision. See R.

2:11-3(e)(1)(E). The Division presented ample proofs during the trial and at

pretrial hearings that they physically and emotionally neglected their child, who

suffered from life-threatening failure to thrive. Despite their protestations that


                                                                          A-2421-17T2
                                       13
circumstances beyond their control were responsible for Sam's malnutrition and

repeated prolonged and unnecessary seizures, ultimately the responsibility for

his care rested with them. They clearly did not fulfill those responsibilities.

      By clear and convincing evidence, the Division proved the parents were

responsible for Sam's physically vulnerable condition, despite services, and that

neither parent understood the role he or she played in his deteriorating state, or

how to care for him in a manner that would avoid a recurrence. The Division

proved that Sam's safety, health, or development has been or will continue to be

endangered by the parental relationship.

                                        B.

      With regard to prong two, nothing that we have seen in this record

indicates it is reasonably foreseeable that the parents will not inflict harm upon

Sam if he were returned to their care. Tom's plan for reunification is not

different from the circumstances which led to Sam's failure to thrive , and

emotional and physical neglect. He has never administered his epileptic child's

medication and does not know what to do when he does not eat.

      Mary, on the other hand, insists she gave the child his medication, despite

blood test results to the contrary. Her description of his condition was grossly

inaccurate. It amounted to a self-serving view of Sam that justified isolating


                                                                           A-2421-17T2
                                       14
him in a locked bedroom. Thus, the Division has by clear and convincing

evidence established that neither parent was willing or able to provide Sam with

a safe home.

                                       C.

      Over the course of thirteen years, the Division provided this family with

multiple services consistent with the requirements of prong three. The child's

failure to thrive actually evolved while the Division was attempting to provide

services to the family. Short of taking custody of the child, which may have

saved his life, the Division could not have done more than it attempted to do in

this case. These arguments are so lacking in merit as to not warrant further

discussion. See R. 2:11-3(e)(1)(E).

                                       D.

      Finally, both parents claim that under prong four, the Division has not

proven by clear and convincing evidence that terminating their parental rights

will not do more harm than good. This child has a bond with his parents, but

they are woefully unable to recognize, much less provide for, his extreme

physical, medical, and emotional requirements. Thus, this prong was also met.

      Tom's contention that there is no possibility that Sam will be adopted, and

therefore no corresponding benefit to termination of parental rights, is mistaken.


                                                                          A-2421-17T2
                                       15
The statute defines a "child" to include a person with Sam's disabilities. The

Division can in fact provide "services pursuant to the laws relating to dependent

and neglected children . . . to persons between [eighteen] and [twenty-one] years

of age who seek to avail themselves of such services and . . . who require a

course of treatment for emotionally, cognitively or physically disabled persons."

N.J.S.A. 9:17B-2(f) (emphasis added). The Division can continue to provide

services even after Sam turns eighteen years of age. See In re K.F., 313 N.J.

Super. 319, 324 (App. Div. 1998); Monmouth Cty. Div. of Soc. Servs. v. C.R.,

316 N.J. Super. 600, 607 n.5 (Ch. Div. 1998).

      Furthermore, Sam can be adopted even if an adult. Our adoption statute,

N.J.S.A. 2A:22-1, "is liberally construed to give due regard to the right of all

persons affected." In re Adoption of Adult by G.V.C., 243 N.J. Super. 651, 653

(Ch. Div. 1990). The Division has the authority to continue to protect Sam.

      Affirmed.




                                                                         A-2421-17T2
                                      16
