RECORD IMPOUNDED 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2763-22 

NEW JERSEY DIVISION OF 

CHILD PROTECTION AND 

PERMANENCY, 

 Plaintiff-Respondent, 

v.

S.Z.K., M.H., a/k/a T.M.H., 

and T.G., a/k/a T.L., 

 Defendants, 

and 

D.M., 

 Defendant-Appellant. 

__________________________ 

IN THE MATTER OF THE

GUARDIANSHIP OF 

D.D.M.M., and S.A.H., minors. 

___________________________ 

Submitted April 8, 2024 – Decided April 23, 2024 

Before Judges Marczyk, Chase, and Vinci. 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-2763-22 

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Essex County, Docket 

No. FG-07-0040-21. 

Jennifer Nicole Sellitti, Public Defender, attorney for 

appellant (Louis W. Skinner, Designated Counsel, on

the briefs). 

Matthew J. Platkin, Attorney General, attorney for 

respondent (Sara M. Gregory, Assistant Attorney 

General, of counsel; Alicia Y. Bergman, Deputy 

Attorney General, on the brief). 

Jennifer Nicole Sellitti, Public Defender, Law 

Guardian, attorney for minor D.D.M.M. (Meredith 

Alexis Pollock, Deputy Public Defender, of counsel;

Jennifer Marie Sullivan, Assistant Deputy Public 

Defender, of counsel and on the brief). 

PER CURIAM 

Defendant D.M. appeals the Family Part's April 24, 2023 final judgment 

terminating his parental rights to his biological daughter, D.D.M.M. ("Dawn").1 

Dawn's mother, S.Z.K., entered an identified surrender of Dawn and does not 

take part in this appeal. Because the trial court correctly applied the law, and 

substantial credible evidence supports its findings, we affirm. 

1

 We employ initials and pseudonyms to identify the parties, the children, and 

others to protect the children's privacy and because the records relating to 

Division proceedings held under Rule 5:12 are excluded from public access 

under Rule 1:38-3(d)(12). 
3 A-2763-22 

I.

In May 2021, Dawn was born prematurely, weighing approximately one 

pound. The Division of Child Protection and Permanency ("Division") became 

involved with D.M. and Dawn on the date of Dawn's birth. The Division had 

been involved with S.Z.K. and her four older children since 2017. Dawn has 

several half-siblings; her maternal siblings have all been adopted by other 

relatives, and her paternal siblings do not reside with D.M. 

Shortly after Dawn's birth, the Division met with S.Z.K. and D.M. S.Z.K. 

provided Dawn's maternal great-aunt, Y.J., as a placement resource. At that 

time, D.M. was residing with his mother and wanted Dawn to reside there with 

him. If not, he wanted her placed with Y.J. D.M. declined to offer any other 

potential placement resources. 

D.M. denied prior Division involvement, denied having a criminal history, 

and claimed to maintain both stable employment and stable housing for Dawn. 

A background check revealed D.M. had a criminal history, he did not have stable 

employment, and the Division was currently investigating allegations of sexual 

abuse involving one of his other children, but he had yet to comply with the 

requested sexually transmitted disease test. The Division also expressed 

concerns about some noted domestic violence issues between D.M. and S.Z.K. 
4 A-2763-22 

D.M. confirmed he and S.Z.K. often had physical altercations, but explained 

they were trying to cease such behavior. When the Division asked D.M.'s 

mother whether Dawn could reside in her home, she declined, citing several 

issues concerning her health and ability to care for Dawn. 

In August 2021, Dawn was medically cleared for discharge. The Division

again met with D.M. and his mother, and D.M. explained he and S.Z.K. agreed 

on the plan for Dawn to live under the care of Y.J. D.M.'s mother again declined 

to be a placement option for Dawn. D.M. also requested a "paternity test."2 The 

Division also learned S.Z.K. suffered a black eye in a recent incident with D.M. 

The next day, the Division obtained custody, care, and supervision of 

Dawn. She was discharged from the hospital and taken to Y.J.'s home. D.M. 

and S.Z.K. were permitted "liberal visitation" with Dawn supervised by Y.J. 

Two weeks later, Dawn underwent surgery to repair a hernia. Despite knowing 

about the surgery, D.M. and S.Z.K. did not attend. Following the surgery, Dawn 

required extensive follow-up medical care with many providers due to her 

premature birth, and Y.J. was diligent in ensuring Dawn received all necessary 

care. 

2

 After not showing up for two scheduled genetic tests, D.M. was finally 

confirmed as the father in December 2021. 
5 A-2763-22 

Throughout the rest of 2021, D.M. fluctuated in consistently visiting 

Dawn. During some visits, D.M. cared for Dawn by holding, feeding, and 

changing her; however, Y.J. expressed concerns that at times D.M. and S.Z.K. 

would argue during visits. Y.J. continued to provide for Dawn's daily medical 

needs and ensured she received the numerous necessary services for her 

development. 

In November 2021, following further physical altercations with S.Z.K., 

D.M. was referred for domestic violence services. In December 2021, with the 

assistance of the Division, D.M. secured an apartment. D.M. was still 

unemployed, but the Division provided him with information on locating 

potential job opportunities. 

The Division referred D.M. for a psychological evaluation with Mark 

Singer, Ed.D., which he attended in March 2022. Dr. Singer recommended 

D.M.: attend consistent supervised visitation with Dawn; participate in 

individual counseling, parenting-skills training, and drug treatment; undergo a 

psychiatric assessment; and obtain stable housing and employment. As a result, 

the Division referred D.M. to a psychiatric evaluation, individual therapy, 

substance abuse evaluation, parenting skills training, and batterer's intervention; 

however, he failed to complete any of the referred services. 
6 A-2763-22 

On April 28, 2022, the Division confirmed D.M. had not visited Dawn 

since December 2021. Throughout May and June, 2022, D.M. occasionally 

visited Dawn; however, none of the visits were the mandated Divisionsupervised visits, and the visits did not occur frequently enough to establish a 

consistent visiting routine. 

The Division assessed D.M.'s apartment in May 2022. The Division 

caseworker observed a one-bedroom apartment with properly working utilities. 

The caseworker also observed no furniture throughout the home and cigarette 

ashes and vomit on the floor. D.M. never provided a copy of his lease, as 

requested, for the Division to review. 

In June 2022, D.M. obtained employment and continued sporadic 

visitation with Dawn. The Division provided D.M. with a bus pass for 

transportation to visits and other services. In early July 2022, D.M. and S.Z.K. 

attended a family party where they engaged in a physical altercation, which 

resulted in D.M. being arrested and charged with simple assault. Dawn was 

present at the family party but did not witness the altercation. 

In July, D.M. was advised about the services he still needed to complete 

to make progress towards the goal of reunification. The Division also sent D.M. 

a letter in August 2022, providing details on the services and contact information 
7 A-2763-22 

for each of the service providers. D.M. failed to attend four scheduled visits 

with Dawn in September 2022, and failed to visit with Dawn at all in October. 

When asked about the missed visits, D.M. said he was too busy. 

During a meeting with the Division in November 2022, D.M. expressed 

his desire to share joint custody of Dawn with Y.J., which the Division believed 

meant he preferred the option of Kinship Legal Guardianship ("KLG"). Y.J. 

was not interested in this option, and the Division explained it could not force 

her to agree to KLG. Y.J. clearly expressed her desire to adopt Dawn and 

identified herself as the only person responsible for Dawn's medical care and 

other needs while highlighting the parents' failure to make any progress towards 

reunification over the previous year. The Division informed D.M. because 

Dawn had been in its care for over a year, it had changed its goal from 

reunification to adoption. To that point, D.M. had yet to complete any of the 

recommended services and failed to visit Dawn throughout November. 

In November 2022, the Division again sent D.M. a letter listing the 

services he still needed to complete and included the contact information for 

each of the providers. D.M. was not responsive to the Division's efforts to meet 

in person or via telephone. The Division again sent D.M. multiple letters 

between December 2022, and February 2023, all advising him about the 
8 A-2763-22 

guardianship litigation and listing the required services with the applicable 

contact information. D.M. remained unresponsive to the Division. He also did 

not respond to attempted Division visits in February 2023, and he failed to visit 

with Dawn as well. 

A permanency hearing occurred over two days in April 2023. Despite 

having notice, D.M. did not appear. As its first witness, the Division presented 

C.G., another aunt of Dawn's who had adopted Dawn's older maternal halfsiblings and had a relationship with Dawn and Y.J. The Division then presented 

Y.J. as well as J.O. and E.I., the caseworkers for Dawn. Defendant called no 

witnesses. 

Prior to the court's decision, S.Z.K. surrendered her parental rights, 

identifying Y.J. as the person to adopt Dawn. In an oral decision, the trial court, 

after analyzing the four prongs of the best interests of the child test under 

N.J.S.A. 30:4C-15.1(a), entered an order terminating the parents' parental rights, 

awarding guardianship of Dawn to the Division for permanent placement and 

adoption by Y.J. 

On appeal, D.M. argues the court erred in finding the Division satisfied 

by clear and convincing evidence the four prongs of the best interests test 
9 A-2763-22 

warranting termination of his parental rights. The Law Guardian sides with the 

Division in urging we affirm the court's decision. 

II. 

Our scope of appellate review is limited. It is well established that in Title 

30 cases we will not second-guess or substitute our judgment for that of the 

family court, provided that its factual findings are "grounded in substantial and 

credible evidence in the record." N.J. Div. of Child Prot. & Permanency v.

D.C.A., 256 N.J. 4, 19 (2023). "Deference is especially appropriate 'when the 

evidence is largely testimonial and involves questions of credibility.'" Cesare 

v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 

149 N.J. 108, 117 (1997)). "We accord deference to fact[-]findings 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." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 448 

(2012). "[A] trial court's factual findings 'should not be disturbed unless they 

are so wholly unsupportable as to result in a denial of justice.'" N.J. Div. of 

Youth & Fam. Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting In re 

Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We owe no deference to a 
10 A-2763-22 

judge's legal conclusions which are reviewed de novo. N.J. Div. of Child Prot. 

& Permanency v. A.B., 231 N.J. 354, 369 (2017). 

The applicable law is clear. When terminating parental rights, the trial 

court applies the statutory best interests test, which requires consideration of 

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; 

(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 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 Division must prove each prong by "clear and convincing evidence." 

N.J. Div. of Child Prot. & Permanency v. D.H., 469 N.J. Super. 107, 115 (App. 

Div. 2021). These prongs are not discrete and separate; they overlap to inform 

a more general inquiry that the termination of parental rights is in a child's best 
11 A-2763-22 

interests. N.J. Div. of Child Prot. & Permanency v. R.L.M., 236 N.J. 123, 145 

(2018). "The question ultimately is not whether a biological mother or father is 

a worthy parent, but whether a child's interest will best be served by completely 

terminating the child's relationship with that parent." N.J. Div. of Youth & Fam. 

Servs. v. T.S., 417 N.J. Super. 228, 249 (App. Div. 2010) (quoting N.J. Div. of 

Youth & Fam. Servs. v. E.P., 196 N.J. 88, 108 (2008)). 

"Parents have a constitutionally protected right to maintain a relationship 

with their children." N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 

279 (2007). That 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. In 

guardianship and adoption cases, such as here, it is well-established that 

"[c]hildren have their own rights, including the right to a permanent, safe[,] and 

stable placement." N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J. Super. 

76, 111 (App. Div. 2004). We acknowledge "the need for permanency of 

placements by placing limits on the time for a birth parent to correct conditions 

in anticipation of reuniting with the child." Ibid. Thus, a parent's interest must, 
12 A-2763-22 

at times, yield to the State's obligation to protect children from harm. See N.J. 

Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 397 (2009). 

III. 

A main theme of D.M.'s arguments is that he is being unfairly penalized 

for his financial inability to provide a safe and stable home for Dawn. It "is well 

settled that poverty alone is not a basis for a finding of abuse or neglect." N.J. 

Div. of Youth & Fam. Servs. v. L.W., 435 N.J. Super. 189 (App. Div. 2014) 

(citing Doe v. G.D., 146 N.J. Super. 419, 430-31 (App. Div. 1976), aff'd sub 

nom., 74 N.J. 196 (1977)). However, the trial court's decision was not 

improperly based on D.M.'s poverty level. Rather, the trial court's decision was 

based on a litany of factors concerning defendant's well-documented actions and 

inactions. 

A.

Defendant argues the trial court erred in finding the Division satisfied the 

interrelated first two prongs of the best interests test, explaining he could not 

harm the child because he was never given an opportunity to care for her 

following her birth. Moreover, he argues even though his visits were 

inconsistent at times, he demonstrated significant effort to remain in the child's 

life and when visits did occur, he acted appropriately with the child and tended 
13 A-2763-22 

to her needs. Therefore, he posits he is not unwilling or unable to eliminate the 

harm facing the child. 

Under these two prongs, "[T]he Division must prove harm that 'threatens 

the child's health and will likely have continuing deleterious effects on the 

child.'" N.J. Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 25 (2013) (quoting 

In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999)). The "focus is on the 

effect of harms arising from the parent-child relationship over time on the child's 

health and development." K.H.O., 161 N.J. at 348. The Division may seek 

termination when there are "indications of parental dereliction and 

irresponsibility, such as the parent's continued or recurrent drug abuse, [and] the 

inability to provide a stable and protective home [.]" Id. at 353. Because the 

first two prongs are closely intertwined, "evidence that supports one [prong] 

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. Moreover, 

a "parent's withdrawal of [parental] 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 trial judge duly considered D.M.'s inconsistent visitation and lack of 

contact with Dawn for an extended period of time, his inability to remediate the 
14 A-2763-22 

concerns that led to Dawn's initial placement, the concerns in his psychological 

evaluation, the lack of stable housing or employment, his domestic violence 

towards S.Z.K., and the condition of his housing with vomit and cigarettes on 

the floor. D.M. remained non-compliant with multiple services despite repeated 

offers to provide transportation and encouragement from caseworkers and 

providers. These actions and inactions demonstrated he could not eliminate the 

harm to Dawn. The record amply supports the judge's findings on prongs one 

and two. 

B.

With respect to prong three, D.M. alleges the Division did not take 

reasonable steps to provide him with services. "Reasonable efforts" include, but 

are not limited to: 

(1) consultation and cooperation with the parent in

developing a plan for appropriate services; 

(2) providing services that have been agreed upon, to 

the family, in order to further the goal of family 

reunification; 

(3) informing the parent at appropriate intervals of the 

child's progress, development, and health; and 

(4) facilitating appropriate visitation. 

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

Courts do not measure reasonableness by the "success" of the efforts. N.J. Div. 

of Youth & Fam. Servs. v. J.S., 433 N.J. Super. 69, 90 (App. Div. 2013) (quoting 
15 A-2763-22 

D.M.H., 161 N.J. at 393). What is reasonable "depend[s] on the facts and 

circumstances of each case." N.J. Div. of Child Prot. & Permanency v. R.G., 

217 N.J. 527, 557 (2014). 

The record is replete with the Division offering D.M. multiple services, in 

multiple ways, and on multiple occasions. These included, but are not limited 

to, psychological and psychiatric evaluations and treatment, substance abuse 

evaluation and treatment, referral to a batterer's intervention program, parenting 

class, supervised visitation through the Division, transportation assistance, and 

financial assistance. The trial judge found not only did the Division offer these 

services, but also "followed up and in every way attempted to engage [D.M.] in 

a process" that he simply failed to cooperate with.

D.M. also alleges the trial court was incorrect in finding prong three was 

satisfied because the Division did not follow its statutory mandate as to the 

relative placement and KLG. In 2021, the Legislature amended Title 30 and 

Title 3B, which concern KLG proceedings. L. 2021, c. 154. The current statute 

as revised provides KLG is proper when: 

(1) each parent's incapacity is of such a serious nature 

as to demonstrate that the parents are unable, 

unavailable or unwilling to perform the regular and

expected functions of care and support of the child; 
16 A-2763-22 

(2) the parents' inability to perform those functions is 

unlikely to change in the foreseeable future; 

(3) in cases in which the [D]ivision is involved with the 

child as provided in [N.J.S.A 30:4C-85], . . . the 

[D]ivision exercised reasonable efforts to reunify the 

child with the birth parents and these reunification 

efforts have proven unsuccessful or unnecessary; and 

(4) awarding [KLG] is in the child's best interests. 

[N.J.S.A. 3B:12A-6(d).] 

With this amendment, the Legislature removed a previous requirement 

that courts first find "adoption of the child is neither feasible nor likely" before 

appointing a caregiver as a KLG. Compare L. 2021, c. 154, § 4 (current N.J.S.A. 

3B:12A-6(d)(3)), with L. 2006, c. 47, § 32 (prior version). As amended, the 

KLG Act ensures a resource parent's willingness to adopt no longer forecloses 

KLG. See N.J.S.A. 3B:12A-6(d)(3). However, the revision of the KLG statute 

did not eliminate the trial court's discretion, upon considering and weighing all 

the evidence, to favor a child's need for permanency over proffered alternatives. 

See, e.g., In re Guardianship of J.C., 129 N.J. 1, 26 (1992) ("[C]hildren have an 

essential and overriding interest in stability and permanency."). 

 The Division asked Y.J. about KLG well before trial. At trial, when asked 

whether she understood the difference between KLG and adoption, Y.J. testified 

she did, however, she wished to adopt the child as her legal child. Y.J. 
17 A-2763-22 

confirmed her strong relationship with the foster parent of the child's other 

siblings, explaining they work together to ensure the children are together for 

major events, such as holidays and family vacations. Y.J. further explained she 

ensures the child has frequent interactions with her siblings. While Y.J. 

remained firm in her desire to adopt over KLG, she expressed openness to 

allowing both D.M. and S.Z.K. to maintain contact with Dawn at her discretion. 

No evidence was proffered to contradict the resource parent's desire to adopt. 

The trial court therefore reasonably concluded, "it is clear that this relationship 

— one of adoption with [Y.J.] is an appropriate placement, and there are no 

better alternatives to termination of parental rights[,]" and concluded the 

Division properly considered alternatives to termination, including KLG. 

C.

Finally, D.M. argues the trial court's decision to terminate his parental 

rights under the fourth prong of the best interests test was improperly based on 

speculations as to his lack of sustainable housing, infrequent visitation, and 

overall unfitness to parent. He highlights the law guardian's failure to have an 

expert evaluate the parent-child bond, which he believes should have led the 

trial court to conclude the fourth prong was not met. 
18 A-2763-22 

When amending Title 30, the Legislature amended only prong two of the 

best interests standard under N.J.S.A. 30:4C-15.1(a) by deleting the sentence, 

"[s]uch 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." Compare L. 2021, c. 154, § 9 (current N.J.S.A. 30:4C15.1(a)(2)), with L. 2015, c. 82, § 3 (prior version). The amendment did not 

preclude a court's consideration of a child's bond to a resource parent under 

prong four. Our Court has recognized "[t]he Legislature acted to preclude trial 

courts from considering harm resulting from the termination of a child's 

relationship with resource parents when they assess parental fitness under the 

second prong, but not to generally bar such evidence from any aspect of the trial 

court's inquiry." D.C.A., 256 N.J. at 26 (citing L. 2021, c. 154). To foreclose a 

child's bond with their resource parents from consideration "would deprive a 

court of crucial information as it determines a child's future and could imperil 

children whom New Jersey is charged to protect." Id. at 27-28. 

The trial court held "there's hardly any positive [evidence supporting] 

continuing forward in a relationship with [D.M. because] he really hasn't 

attempted to develop relationship with the child or any kind of meaningful 

relationship." The trial judge explained D.M. has not provided care or assisted 
19 A-2763-22 

in providing care for the child and has not demonstrated his ability to provide or 

be willing to provide financial support for the child. The trial court placed a 

large emphasis on the value of the child residing with Y.J., whom he describes 

as "a loving, caring individual who stepped up," because it affords the child the 

best chance to live a healthy and happy life after being born with so many 

medical and personal difficulties. 

Generally, the Division's proofs should include testimony by an expert 

who has had an opportunity to make a "comprehensive, objective, and informed 

evaluation of the child's relationship with both the natural parents and the foster 

parent[,]" M.M., 189 N.J. at 281, and the court must also consider "parallel 

proof relating to the child's relationship with his or her natural parents in 

assessing the existence, nature, and extent of the harm facing the child." N.J. 

Div. of Youth & Fam. Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009) 

(quoting In re Guardianship of J.C., 129 N.J. at 19). However, where the 

termination is "not predicated upon bonding, but rather reflect[s] [the child's] 

need for permanency and [the biological parent's] inability to care for [the child] 

in the foreseeable future[,]" a lack of bonding evaluation is not fatal to the 

Division's case. See N.J. Div. of Youth & Fam. Servs. v. B.G.S., 291 N.J. Super. 

582, 593-94 (App. Div. 1996). 
20 A-2763-22 

Defendant's inconsistent and infrequent visitation with Dawn never 

allowed for a bond strong enough for the court to consider under the fourth prong 

of the best interests test to form. Further, the court's decision was not predicated 

on the bond, or lack thereof, between defendant and the child, but rather it was 

predicated on the child's need for permanency and defendant's inability to care 

for the child for the foreseeable future. The trial court recognized this, stating 

"it's clear that termination of [appellant's] parental rights in this case will do no 

more harm than good. It's clear and convincing evidence termination followed 

by adoption . . . [will] cause much more good than any harm of terminating that 

right." 

Finally, to the extent we have not otherwise addressed any of appellant's 

remaining arguments, we determine they lack sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E). 

Affirmed.