### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO S . A

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A

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NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY , Plaintiff

- Respondent ,

v. D.H. and N.T. , Defendants

- Appellant s
.

_____________________________________ __ IN THE MATTER OF THE GUARDIANSHIP OF C.H. , N.H. , and A.H. , M inors.

_______________________________________

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

- 00 92

- 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not " constitute precedent or be binding upon any court.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, 20182 A

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- 17T4 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 D efender , 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) 1 and 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 Prot ection 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 g uardianship 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.3 A

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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 Divis ion 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 leav ing 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 received4 A

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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

. T he court granted the Division ' s emergency removal of Norman immediately following hi s birth in January 2015

. The Division placed Norman in the same resource home as Abby. Twe nty

- 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 com petency. 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. Brown5 A

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conducted a psychological and neuropsychological evaluation of Nancy. Dere k 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 best

interests

- of

- the

- child standard set forth in N.J.S.A. 30:4C

- 15.1(a) and concluded
the Div ision 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 j udg ment of g uardianship 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 OUTLINE D IN N.J.S.A. 30: 4C

- 15.1[(a)] WAS PROVEN BY CLEAR AND CONVINCING EV IDENCE.
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 an d Convincing Evidence To Support The Finding That [Nancy] Is Unwilling Or Unable To Eliminate The Harm Facing C.H. , N.H. , And6 A

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D. There Was No Clear A nd Convincing Evidence To Support The Finding That [The Division] Made Reasonable Efforts To Provide Services To Help [Nancy] Corre ct The Circumstances Which Led T o C.H. , N.H. And A.H. ' s Placement Outside Of The Home. E. There Was No Clear and Convincing Evidence To Support The F inding 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 CO NVINCING 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 terminati ng 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 when7 A

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there is substantial credible evidence in the record to support the cou rt ' 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 enhance d 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 ' r s 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

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A parent has a consti tutionally 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 wh ose 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 (citing E.P. , 196 N.J. at 102). A parent ' s interest must , at times , yield to the State ' s obliga tion 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 b y 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 i nclude evidence that separating the child from his resource family parents would cause9 A

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- 17T4 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 circu mstances 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

cornerst one 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

statutor y factors. S ee K.H.O. , 161 N.J. at 348. The record supports his determination that although Nancy ' s limited level of cognitive functioning alone10 A

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does not render her unable to care for her children , the children ' s safety , health and development are endange red 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 s ervices offered by the Division. T he court accepted Dr. Landry ' s testimony , found Dr. Brown ' s testimony w as 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 supporte d 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 thir d and fourth prongs of the best interests standard. We are not persuaded. Judge Flynn ' s findi ng 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 of11 A

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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.