RECORD IMPOUNDED

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

Before Judges Fasciale and Moynihan.

NOT FOR PUBLICATION WITHOUT THE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.

January 21, 2020
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A-3664-18T2

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). 
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A-3664-18T2

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. 
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A-3664-18T2

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. 
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A-3664-18T2

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 
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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, 
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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 
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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 
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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 
10 A-3664-18T2

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 
11 A-3664-18T2

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).
12 A-3664-18T2

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.