RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-0446-17T4

 A-0449-17T4

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v. 

D.H. and N.T., 

Defendants-Appellants.

_______________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF C.H., N.H., and A.H., Minors.

_______________________________________

Submitted October 11, 2018 – Decided

Before Judges Accurso, Vernoia and Moynihan. 

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Monmouth County,

Docket No. FG-13-0092-16. 

Joseph E. Krakora, Public Defender, attorney for 

appellant D.H. (Eric R. Foley, Designated Counsel, on 

the brief). 

NOT FOR PUBLICATION WITHOUT THE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.

October 22, 2018
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Joseph E. Krakora, Public Defender, attorney for 

appellant N.T. (Kisha M. Hebbon, Designated Counsel,

on the brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Melissa H. Raksa, Assistant Attorney 

General, of counsel; Joshua P. Bohn, Deputy Attorney 

General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,

attorney for minors (Nancy P. Fratz, Assistant Deputy 

Public Defender, on the brief).

PER CURIAM

In these appeals, which have been consolidated for this opinion,

defendants N.T. (Nancy)1and D.H. (Derek) appeal from a Family Part order 

terminating their parental rights to their biological children, four-year-old A.H. 

(Abby), three-year-old N.H. (Norman), and one-year-old C.H. (Cory). Because 

we agree with the New Jersey Division of Child Protection and Permanency, as 

well as the Law Guardian, that there is substantial credible evidence supporting 

the court's determination that termination of defendants' parental rights is in the 

children's best interests, we affirm.

The evidence at the guardianship trial showed that the Division first 

became involved with defendants in December 2013 based on a referral that 

 

1

 We employ initials and pseudonyms to protect the privacy of the children and 

for ease of reference.
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Derek and Nancy, who was pregnant, were at a soup kitchen and appeared

homeless and in need of services. Six months later, the Division received a 

second referral that Derek, Nancy and Abby were being evicted from their home 

and had no place to live. 

In September 2014, the Division received a third referral concerning 

Nancy and Abby's living conditions, a lack of food and Nancy leaving Abby in 

the care of Nancy's cousin, who had a history of substance abuse and an open 

case with the Division. At that time, Nancy denied recent drug use but agreed 

to a substance abuse evaluation because she wanted to avoid a relapse. Derek 

refused to provide his home address and admitted using marijuana to ease his 

anxiety and depression. It was recommended that defendants undergo substance 

abuse and psychological evaluations.

A December 2014 forensic assessment determined Nancy is a "a low 

functioning adult" and recommended that she undergo cognitive testing, a 

psychiatric evaluation, parenting skills services and psychotherapy. The 

Division also received a referral from a hospital that Abby smelled like cigarette 

smoke when Nancy appeared and sought prenatal care because she was pregnant 

with Norman, who was due the following month. The Division further received 
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a referral that two men were observed smoking marijuana while Abby was in 

their care and Nancy was not present.

On December 19, 2014, the Division filed a verified complaint seeking 

the care and supervision of Abby due to Nancy's cognitive limitations and 

concomitant inability to supervise, protect and plan for Abby, and Derek's 

substance abuse and failure to comply with services. The court entered an order 

granting the Division care and custody of Abby.

 The court granted the Division's emergency removal of Norman 

immediately following his birth in January 2015. The Division placed Norman 

in the same resource home as Abby. Twenty-two months later, Cory was born. 

The court granted care and custody of Cory to the Division, which placed the 

child in the same resource home as his siblings. 

During the guardianship trial, the Division presented the testimony of the 

two caseworkers and Dr. Elise Landry, who was qualified as an expert in 

psychology, child rearing, child abuse and neglect, and parenting competency. 

Dr. Landry conducted psychological and bonding evaluations of Nancy and 

Derek and a bonding evaluation of the children's resource mother.

Nancy presented the testimony of Dr. Andrew Brown, who was qualified 

as an expert in psychology with a specialty in neuropsychology. Dr. Brown 
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conducted a psychological and neuropsychological evaluation of Nancy. Derek 

did not present any witnesses. 

In his oral opinion following the presentation of evidence, Judge Terence 

P. Flynn made detailed factual findings, addressed each element of the bestinterests-of-the-child standard set forth in N.J.S.A. 30:4C-15.1(a) and concluded 

the Division sustained its burden of proving by clear and convincing evidence it 

was in the children's best interests to terminate Nancy and Derek's parental 

rights. He entered a September 8, 2017 judgment of guardianship terminating

defendants' parental rights to their three children. This appeal followed. 

Nancy offers the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN FINDING THAT 

THE BEST INTERESTS TEST OUTLINED IN 

N.J.S.A. 30:4C-15.1[(a)] WAS PROVEN BY CLEAR 

AND CONVINCING EVIDENCE.

A. Introduction.

B. There Was No Clear and Convincing Evidence To 

Support the Finding That C.H., N.H., and A.H.'s Safety,

Health, Or Development Has Been Or Will Continue 

To Be Endangered By The Parental Relationship.

C. There Was No Clear and Convincing Evidence To 

Support The Finding That [Nancy] Is Unwilling Or 

Unable To Eliminate The Harm Facing C.H., N.H., And 
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A.H. Or Is Unable To Provide A Safe And Stable Home 

For C.H., N.H., And A.H.

D. There Was No Clear And Convincing Evidence To 

Support The Finding That [The Division] Made 

Reasonable Efforts To Provide Services To Help 

[Nancy] Correct The Circumstances Which Led To 

C.H., N.H. And A.H.'s Placement Outside Of The 

Home.

E. There Was No Clear and Convincing Evidence To 

Support The Finding That Termination Of [Nancy's] 

Parental Rights Would Not Cause More Harm Than 

Good.

Derek makes the following arguments:

POINT I 

THE JUDGMENT OF GUARDIANSHIP SHOULD 

BE REVERSED BECAUSE [THE DIVISION] 

FAILED TO PROVE BY CLEAR AND 

CONVINCING EVIDENCE THAT IT PROVIDED 

REASONABLE EFFORTS TOWARDS 

REUNIFICATION.

POINT II

[THE DIVISION] FAILED TO PROVE BY CLEAR 

AND CONVINCING EVIDENCE THAT 

TERMINATION OF PARENTAL RIGHTS WILL 

NOT DO MORE HARM THAN GOOD.

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 
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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 (citing Cesare v. Cesare, 154 N.J. 394, 413 

(1998)). 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).
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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 

right, however, "is not absolute" and is limited "by the State's parens patriae

responsibility to protect children whose vulnerable lives or psychological wellbeing may have been harmed or may be seriously endangered by a neglectful or 

abusive parent." F.M., 211 N.J. at 447 (citing E.P., 196 N.J. at 102). A parent's 

interest must, at times, yield to the State's obligation to protect children from 

harm. See 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. The Division's 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 
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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).]

"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) (citing N.J. Div. of Youth & 

Family Servs. v. A.W., 103 N.J. 591, 607 (1986)). 

Nancy argues the court erred by finding the Division presented clear and 

convincing evidence as to each prong of the best-interests standard. We 

disagree. Judge Flynn conducted the required fact-sensitive analysis of the 

statutory factors. See K.H.O., 161 N.J. at 348. The record supports his 

determination that although Nancy's limited level of cognitive functioning alone 
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does not render her unable to care for her children, the children's safety, health 

and development are endangered by the parental relationship with Nancy 

because she has "the functioning capability . . . of a second grader," a lack of 

support from a partner, inadequate financial resources and housing, untreated 

mental health issues, three children to care for and a demonstrated reluctance to 

take advantage of various services offered by the Division. The court accepted

Dr. Landry's testimony, found Dr. Brown's testimony was not credible, and 

determined Nancy lacked the ability to address the numerous issues that 

rendered her unable to safely parent her children, and that termination of Nancy's 

parental rights would not do more harm than good to the children. We defer to 

Judge Flynn's detailed findings because they are supported by substantial 

credible evidence. See K.T.D., 439 N.J. Super. at 368. 

Derek argues there is insufficient evidence supporting the court's findings 

on the third and fourth prongs of the best interests standard. We are not 

persuaded. Judge Flynn's finding that the Division provided Derek with 

numerous and ongoing services to ameliorate the mental health, substance 

abuse, housing and lack of parenting skills issues that rendered him unable to 

safely parent the children is supported by substantial credible evidence. See

F.M., 211 N.J. at 448. Similarly, Judge Flynn's conclusion that termination of 
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Derek's parental rights will not do more harm than good is supported by Dr. 

Landry's testimony that there is a minimal parental bond between Derek and the 

children, a strong bond between the children and their long-time resource mother

and the children will suffer lasting harm if they are removed from the resource 

mother's care, but will not suffer any harm by the termination of Derek's parental 

rights. 

We therefore affirm substantially for the reasons set forth in Judge Flynn's 

comprehensive and well-reasoned oral decision.

Affirmed.