                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4968-17T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

A.M.,

          Defendant-Appellant,

and

T.J.C.,

     Defendant.
_________________________

IN THE MATTER OF THE
GUARDIANSHIP OF T.H.C.,

     a Minor.
_________________________

                    Submitted July 16, 2019 – Decided July 31, 2019

                    Before Judges Vernoia and Mayer.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Warren County,
            Docket No. FG-21-0114-18.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Carol A. Weil, Designated Counsel, on the
            briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jason Wade Rockwell, Assistant Attorney
            General, of counsel; Peter Damian Alvino and
            Alexandra N. Vadala, Deputy Attorneys General, on
            the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Margo E. K. Hirsch, Designated
            Counsel, on the brief).

PER CURIAM

      Defendant A.M. (Abby)1 appeals from a June 12, 2018 Family Part

Judgment of Guardianship terminating her parental rights to her son, T.H.C.

(Tim), who was born in 2016. We are convinced the court correctly determined

the New Jersey Division of Child Protection and Permanency (Division) proved

by clear and convincing evidence that termination of defendant's parental rights

was in Tim's best interests, and affirm.




1
  We employ initials and pseudonyms for the parties and children for clarity and
to protect the children's privacy.


                                                                        A-4968-17T4
                                           2
      Abby and T.J.C. (Todd) are Tim's biological parents. Todd surrendered

his parental rights to Tim's resource parents on April 25, 2018, and is not a party

to this appeal. Abby is also the biological mother of a girl, Susan, who was born

in 2012. The Division's permanency plan for Susan is reunification with her

biological father, who resides in Honduras. Abby consents to the transfer of

legal and physical custody of Susan to her father, and there are no issues related

to Susan in this guardianship matter.

      In September 2016, the court granted the Division temporary care and

custody of Tim and Susan to protect their safety and health because Abby

overdosed on drugs while caring for them.         Following review hearings, in

August 2017 the court approved the Division's permanency plan for Tim:

termination of parental rights followed by adoption. Two mo nths later, the

Division filed its guardianship complaint.

      The trial on the Division's complaint was conducted over the course of

three days before Judge Haekyoung Suh. The Division presented the testimony

of Division permanency and intake caseworker Maryse D-Betrand, Division

adoption caseworker Sara Clause, Division assistant family services worker

John Chumbley, Tim's resource parent, A.L., and the Division's expert witness,

licensed psychologist Robert James Miller, II. Abby did not attend the trial or


                                                                           A-4968-17T4
                                        3
present any witnesses. The Law Guardian also did not present any witnesses at

trial.

         Following the hearing, Judge Suh issued a detailed written decision

summarizing the matter's procedural history and making detailed factual

findings as to each of the required elements of the best interests of the child

standard set forth in N.J.S.A. 30:4C-15.1(a). Based on those findings, Judge

Suh concluded the Division sustained its burden of proving by clear and

convincing evidence that it was in Tim's best interests to terminate Abby's

parental rights. More particularly, the judge found that Abby's long term and

ongoing substance abuse issues that she failed to address despite the numerous

services offered by the Division, her inability to provide Tim with a safe and

secure home, her lengthy failure to provide Tim the permanency to which he is

entitled, and her withholding of parental care and attention endangered Tim's

safety, health and development.       Judge Suh also found that, despite the

Division's efforts to provide services, Abby demonstrated an inability and

unwillingness to remediate the harm that necessitated Tim's removal. The judge

further found that the evidence, including the unrefuted opinion of the Division's

expert, established that termination of Abby's parental rights will not do more




                                                                          A-4968-17T4
                                        4
harm than good. Judge Suh entered a June 12, 2018 Judgment of Guardianship

terminating Abby's parental rights to Tim. This appeal followed.

      Abby presents the following arguments for our consideration:

            POINT I

            THE TRIAL COURT ERRED BY TERMINATING
            THE MOTHER'S PARENTAL RIGHTS BECAUSE
            ALTERNATIVES      TO  TERMINATION   AND
            ADOPTION       WERE  NOT  APPROPRIATELY
            CONSIDERED BY DCPP OR THE COURT[.] (Not
            Raised Below.)

            POINT II

            THE TRIAL COURT ERRED BY TERMINATING
            THE MOTHER'S PARENTAL RIGHTS BECAUSE
            THE REQUIREMENTS OF PRONG THREE WERE
            NEVER MET; DCPP DID NOT PROVIDE
            REASONABLE SERVICES TO THE MOTHER[.]
            (Not Raised Below.)

            POINT III

            THE JUDGMENT TERMINATING THE MOTHER'S
            PARENTAL RIGHTS MUST BE REVERSED
            BECAUSE DCPP FAILED TO PROVE THAT
            TERMINATION OF PARENTAL RIGHTS WOULD
            NOT DO MORE HARM THAN GOOD[.] (Not Raised
            Below.)

      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-4968-17T4
                                      5
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. 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 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


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                                        6
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. A parent's interest must, at times, 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).

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

interests of the child." K.H.O., 161 N.J. at 347. A 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
            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

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                                        7
            (4) Termination of parental rights will not do more
            harm than good.

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

      "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).

      Here, Abby does not challenge the court's findings under the first and

second prongs of the best interests standard. She argues only that there is

insufficient evidence supporting the court's findings on the third and fourth

prongs.2 Based on our careful review of the record, we are not persuaded. Judge

Suh conducted the required fact-sensitive analysis of all of the statutory factors,

see K.H.O., 161 N.J. at 348, and we affirm substantially for the reasons set forth


2
  We note that all of the arguments raised on Abby's behalf on appeal were not
raised before the trial court. See State v. Robinson, 200 N.J. 1, 20 (2009)
(explaining that appellate courts generally decline to consider arguments that
were not "properly presented to the trial court" unless they "go to the jurisdiction
of the trial court or concern matters of great public interest" (quoting Nieder v.
Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973))). Nonetheless, we consider the
merits of Abby's arguments because their resolution shall affect Tim's best
interests.
                                                                            A-4968-17T4
                                         8
in her thorough and well-reasoned written opinion. We add only the following

brief comments.

      Judge Suh's finding the Division provided Abby with numerous and

ongoing services to ameliorate substance abuse and parenting skills issues that

rendered her unable to safely parent Tim is supported by substantial credible

evidence. See F.M., 211 N.J. at 452. Moreover, plaintiff's claim the Division

did not honor its obligation to "thoroughly explore[] and exhaust[]" "alternatives

to terminating parental rights," N.J. Div. of Youth & Family Servs. v. A.G., 344

N.J. Super. 418, 434 (App. Div. 2001), by failing to consider Abby's sister N.M.

as a caregiver is not supported by the record. The evidence shows N.M. was

asked on multiple occasions about her availability to serve as a caregiver and,

in each instance, she indicated she was not available due to housing issues. N.M.

was advised to inform the Division if her housing situation changed and she

wanted to be considered as an alternative caregiver, but she never did so. The

Division considered several of Abby's other relatives as alternative caregivers,

each of whom was ruled out and did not appeal those determinations.

      Judge Suh's conclusion that the termination of Abby's parental rights will

not do more harm than good is similarly supported by substantial credible

evidence. Abby did not appear for the bonding evaluation. There is no evidence


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                                        9
of a bond, strong or otherwise, between Tim and Abby, and the uncontroverted

evidence established a very strong and positive bond between Tim and his

resource parents, who have attentively cared for him and addressed his special

physical needs and developmental delays since he was two months old, and have

expressed a desire to adopt him.          Moreover, the undisputed evidence

demonstrates that Tim's separation from his resource parents will result in

significant and enduring emotional and psychological harm. Abby's assertion

the evidence does not support the court's conclusion that termination of her

parental rights will not do more harm than good is without sufficient merit to

warrant any further discussion. R. 2:11-3(e)(1)(E).

      Affirmed.




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