RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2083-17T3

NEW JERSEY DIVISION

OF CHILD PROTECTION 

AND PERMANENCY,

Plaintiff-Respondent,

v.

R.C.,

Defendant-Appellant/

Cross-Respondent,

and 

D.S.,

Defendant.

______________________________

IN THE MATTER OF THE 

GUARDIANSHIP OF Ra.C., Minor,

Respondent/Cross-Appellant.

______________________________

Submitted April 4, 2019 – Decided May 3, 2019

Before Judges Simonelli and Firko.

NOT FOR PUBLICATION WITHOUT THE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.
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A-2083-17T3

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Hudson County, 

Docket No. FG-09-0122-17.

Joseph E. Krakora, Public Defender, attorney for 

appellant/cross-respondent (Beth A. Hahn, Designated 

Counsel, on the briefs).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for respondent/cross-appellant (David B. 

Valentin, Assistant Deputy Public Defender, on the 

brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Jason W. Rockwell, Assistant Attorney 

General, of counsel; Jessica M. Steinglass, Deputy 

Attorney General, on the brief).

PER CURIAM

Defendant R.C. (Rhonda),1the biological mother of Ra.C. (Robert) born 

in December 2006, appeals from the December 21, 2017 judgment of 

guardianship, which terminated her rights to the child.2 On appeal, Rhonda 

contends the trial judge erred in finding respondent New Jersey Division of 

Child Protection and Permanency (Division) proved all four prongs of N.J.S.A. 

30:4C-15.1(a) by clear and convincing evidence. She also argues that a 

 

1

 Pursuant to Rule 1:38-3(d), we use initials and fictitious names to protect the 

confidentiality of the participants in these proceedings.

2

 Robert's father is unknown and his rights were terminated during the 

guardianship proceeding.
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subsequent judge erred in denying her motion for parenting time pending appeal. 

The law guardian cross-appeals and challenges the judge's findings on prongs 

three and four. We affirm.

We will not recite in detail the history of the Division's involvement with 

Rhonda. Instead, we incorporate by reference the factual findings set forth in 

Judge Anthony V. D'Elia's November 21, 2017 oral opinion. 

I.

Robert was removed from his mother shortly after his birth due to her

illicit drug use and homelessness. He was placed in a specialized provider 

service home and classified as medically fragile. The Division explored several 

relative placement options but none were able to care for Robert. At one point, 

Rhonda was reunified with Robert, but she was incarcerated several times since 

his birth and was in prison during the guardianship trial that took place in 

October 2017. Rhonda's brother, John, became Robert's legal guardian when 

the child was five years old. Robert suffers from mental health issues and 

behavioral problems, including Attention Deficit/Hyperactivity Disorder, 

Oppositional Defiant Disorder, Mood Disorder, and Reactive Attachment 

Disorder. Robert was non-compliant in taking his medications, became 

aggressive, and expressed suicidal ideations. John and his pregnant wife could 
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not attend to Robert's needs, and they were unable to take him to his psychiatric 

appointments or discipline him. After Robert was admitted to Hoboken 

University Medical Center for an evaluation, John was unwilling to take him 

home. Rhonda was incarcerated at the time and the Division effectuated 

Robert's emergent removal. Robert's older brother, Paul, expressed an interest 

in caring for him, but never appeared in court as requested to pursue same.

During the trial, the Division presented testimony from two experts and 

two caseworkers. Neither expert supported reunification. Dr. Robert James 

Miller, II testified that Rhonda failed to articulate a relapse prevention plan or 

parental planning for Robert. She has poor cognitive functioning and a 

personality disorder. There was a "peer-like" interaction between Rhonda and 

Robert, and she sought attention from him, resulting in a role reversal and 

"psychological intrusiveness." Permanency was immediately required for 

Robert to overcome his developmental delays, according to Miller. 

Dr. Robert Kanen also testified on behalf of the Division and opined that 

Rhonda is "proven to be undependable and unreliable," and has "serious 

parenting deficits." He expressed concern that Rhonda "would expose the child 

to an unnecessary risk of harm," and because of his special needs, he requires 

"somebody who is consistent, predictable and reliable" and not involved with 
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drugs. The Division's caseworkers testified that, although Robert had been 

placed in a home where adoption was possible, the Division's goal was select 

home adoption.

The law guardian proffered an expert, Dr. Antonio Burr, who testified that 

Rhonda might be able to parent in the future if she complied with services, 

refrained from using drugs, avoided criminal activity, and obtained employment. 

Burr testified that Rhonda had a sixteen-year history of heroin abuse, but she 

participated in services while she was incarcerated at Edna Mahan Correctional 

Facility (EMCF). Nonetheless, he opined that Rhonda's likelihood of successful 

parenting was "minimal." She would need to live a drug-free lifestyle for one 

to two years before being considered as a caretaker. 

Rhonda testified she would be released from prison in February 2018. 

Robert asserts he does not want to be adopted. Rhonda's expert, Dr. Gerard 

Figurelli, testified he "could not articulate any circumstances under which he 

would recommend termination of parental rights," a position which the court 

outright rejected. He also advocated for a therapeutic placement for Robert 

instead of termination of parental rights. 

In its oral opinion, the court explained that even if Rhonda was not 

incarcerated, it would be unsafe to place Robert with her based upon Rhonda's 
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history of substance abuse, instability, and multiple incarcerations. Lack of an 

adoptive home for Robert did not prevent termination of parental rights. 

Subsequent to the trial, Robert's resource parents decided against adopting him.

II.

Our scope of review on appeal from an order terminating parental rights 

is limited. N.J. Div. of Youth and Family Servs. v. G.L., 191 N.J. 596, 605

(2007). We will uphold a trial judge's factfindings if they are "supported by 

adequate, substantial, and credible evidence." N.J. Div. of Youth and Family 

Servs. v. R.G., 217 N.J. 527, 552 (2014). "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." N.J. Div. of Youth and Family Servs. v. F.M., 

211 N.J. 420, 448 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). 

"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 and Family Servs. v. 

E.P., 196 N.J. 88, 104 (2008) (quoting G.L., 191 N.J. at 605). We also accord 

deference to the judge's credibility determinations "based upon his or her 

opportunity to see and hear the witnesses." N.J. Div. of Youth and Family Servs.
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v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing Cesare, 154 N.J. at 411-

13). No deference is given to the court's "interpretation of the law" which is 

reviewed de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012).

When terminating parental rights, the court focuses on the "best interests 

of the child standard" and may grant a petition when the four prongs set forth in 

N.J.S.A. 30:4C-15.1(a) are established by clear and convincing evidence. In re 

Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). "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." Id. at 348.

N.J.S.A. 30:4C-15.1(a) requires the Division to prove:

(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 [D]ivision has made reasonable efforts to 

provide services to help the parent correct the 

circumstances which led to the child's placement 
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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.

After carefully reviewing the arguments advanced by Rhonda and the law 

guardian in light of the record and applicable legal principles, we are convinced 

there is substantial credible evidence supporting the court's findings of fact and 

legal conclusion that it was in Robert's best interests to terminate both parents' 

parental rights. We address the four statutory prongs in turn.

A. Prong One.

The first prong requires the Division to establish 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). "[T]he Division must prove 

harm that 'threatens the child's health and will likely have continuing deleterious 

effects on the child.'" N.J. Dep't of Children and Families v. A.L., 213 N.J. 1, 

25 (2013) (quoting K.H.O., 161 N.J. at 352).

The harm need not be physical, as "[s]erious and lasting emotional or 

psychological harm to children as the result of the action or inaction of their 

biological parents can constitute injury sufficient to authorize the termination of 

parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). The 
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focus of the harm is not on an isolated incident, but rather "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. "Moreover, '[c]ourts need 

not wait to act until a child is actually irreparably impaired by parental 

inattention or neglect.'" Dep't of Children and Families, Div. of Child Protection 

and Permanency v. E.D.-O., 223 N.J. 166, 178 (2015) (alteration in original) 

(quoting In re Guardianship of DMH, 161 N.J. 365, 383 (1999)).

The harm may be established by "a delay in establishing a stable and 

permanent home[.]" DMH, 161 N.J. at 383. "A parent's withdrawal 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." Id. at 379. 

Additionally, a parent's "persistent failure to perform any parenting functions 

and to provide . . . support for [the child] . . . . constitutes a parental harm to that 

child arising out of the parental relationship [that is] cognizable under N.J.S.A. 

30:4C-15.1(a)(1) and (2)." Id. at 380-81.

The court concluded the first prong was established because Robert was 

harmed by Rhonda's inability to provide a safe and stable home for him and her 

failure to address her longstanding drug addiction. In addition, the court found 
10 A-2083-17T3

that Rhonda harmed Robert by engaging in criminal activity that resulted in her 

incarceration.

Rhonda argues that the court's finding that she endangered Robert or will 

endanger him in the future was an inappropriate, categorical judgment. In 

addition, she argues the court erred by failing to give appropriate weight to her 

"bonded parental relationship" with Robert prior to her incarceration, and the 

fact that she completed inpatient and intensive outpatient drug rehabilitation 

programs, resulting in extended periods of sobriety.

The record clearly and convincingly supports the court's decision, which 

was based on Rhonda's "track record" since Robert was born, illustrating her 

serious history of drug abuse, instability, homelessness, and incarceration. After 

Robert was born, Rhonda left the hospital and was missing for two weeks, she 

never visited him during his three week hospital stay, and never named him. 

When she was located, Rhonda was addicted to heroin and homeless. Despite 

her periods of sobriety, she relapsed more than once. In May 2007, she was 

incarcerated on drug charges and did not visit Robert until January 2008, even 

though she entered the Integrity House substance abuse program in September 

2007 and had the ability to see him. She was incarcerated again in 2012, and 

the person she arranged for to care for Robert could not cope with his behavioral 
11 A-2083-17T3

issues, resulting in the Division taking custody of him. The court found Miller 

credible when he opined that Robert's behavioral issues were proximately 

caused by Rhonda's instability.

B. Prong Two.

"The second prong, in many ways, addresses considerations touched on in 

prong one." F.M., 211 N.J. at 451. The focus is on parental unfitness. K.H.O., 

161 N.J. at 352; DMH, 161 N.J. at 378-79. In considering this prong, the court 

"should 'determine whether it is reasonably foreseeable that the parents can 

cease to inflict harm upon the child[.]'" N.J. Div. of Youth and Family Servs. 

v. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth and Family Servs.

v. A.W., 103 N.J. 591, 607 (1986)). The second prong may be satisfied by:

by indications of parental dereliction and 

irresponsibility, such as the parent's continued or 

recurrent drug abuse, the inability to provide a stable 

and protective home, the withholding of parental 

attention and care, and the diversion of family resources 

in order to support a drug habit, with the resultant 

neglect and lack of nurture for the child.

[K.H.O., 161 N.J. at 353.]

"Prong two may also be satisfied if 'the child will suffer substantially from a 

lack of . . . a permanent placement and from the disruption of [the] bond with 
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foster parents.'" F.M., 211 N.J. at 451 (alteration in original) (quoting K.H.O., 

161 N.J. at 363).

Based upon credible expert testimony, including the expert testimony 

proffered by Rhonda's expert, Figurelli, the court found she was unable to parent 

Robert at the time of trial, and she would need to maintain a period of sobriety 

after being released from prison before being a viable caregiver. In addition, 

the court accepted Miller's opinion that Rhonda's prognosis was poor, and she is 

at risk to relapse upon her return to the community given her past unsuccessful 

attempts and lack of ability to understand its negative impact on Robert.

Our review of the record leads us to conclude there is sufficient credible 

evidence supporting the court's finding that the Division satisfied the second 

statutory prong by clear and convincing evidence. These findings are 

compounded by Rhonda's incarceration and her inability to provide Robert with 

the stable home he desperately needs in the face of his serious behavioral issues.

C. Prong Three.

Under prong three, the court must consider whether the Division "made 

reasonable efforts to provide services to help the parent correct the 

circumstances which led to the child's placement outside the home[.]" N.J.S.A. 

30:4C-15.1(a)(3). The Division's efforts must be analyzed "with reference to 
13 A-2083-17T3

the circumstances of the individual case[,]" including the parent's degree of 

participation. DMH, 161 N.J. at 390.

N.J.S.A. 30:4C-15.1(c) defines reasonable efforts as those reasonable 

"attempts by an agency authorized by [the Division] to assist the parents in 

remedying the circumstances and conditions that led to the placement of the 

child and in reinforcing the family structure[.]" The statute sets forth examples 

of "reasonable efforts," including but 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.

[Ibid.]

The court found that the Division provided numerous services to Rhonda 

in an attempt to reunify her with Robert even when she was incarcerated. The 

Division identified a residential substance abuse treatment program at Integrity 

House, transitioned her to Eva's Village, and placed Robert in her care after her 

participation in a Mommy and Me program. Rhonda and the law guardian argue 
14 A-2083-17T3

that the Division did not provide services to Rhonda during her incarceration 

but our review of the record reveals that she was receiving services at EMCF,

which Rhonda felt were sufficient. Despite Rhonda's denial as to her need for 

more intensive treatment, the Division persisted in offering services to address 

her drug abuse during her incarceration, facilitated psychological evaluations, 

kept her apprised of Robert's condition, arranged visitations with him, and phone 

contact.

Rhonda and the law guardian also challenge the Division's ruling out 

relatives to care for Robert. The record reflects that the Division explored

relative placements but none could deal with Robert's behavioral problems. The 

severity of his issues is confirmed by the Division placing him in a residential 

treatment center, a partial hospitalization program, providing psychotropic 

medication and counselors. Robert's improved behavior when he had visits with 

his mother were temporal in nature. One proffered individual suggested for 

placement by Rhonda failed to appear in court to testify despite agreeing to do 

so. Rhonda's other designated individual lives in Texas, and she was denied 

interstate placement. Robert's current placement was found capable of meeting 

his needs, having experience with psychiatric issues and aggressive behavior. 

We find no support in the record for Rhonda and the law guardian's contention 
15 A-2083-17T3

that the Division failed to consider alternative placements for Robert, and the 

judge correctly concluded that the Division satisfied prong three by clear and 

convincing evidence.

D. Prong Four.

The fourth prong requires the Division to show "[t]ermination of parental 

rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). 

Termination of parental rights poses a risk to children due to the severing of the 

relationship with their natural parents, but it is based "on the paramount need 

the children have for permanent and defined parent-child relationships." 

K.H.O., 161 N.J. at 355 (quoting In re Guardianship of J.C., 129 N.J. 1, 26 

(1992)).

Thus, "the fourth prong of the best interests standard [does not] require a 

showing that no harm will befall the child as a result of the severing of biological 

ties." Ibid. Prong four "serves as a fail-safe against termination even where the 

remaining standards have been met." G.L., 191 N.J. at 609. "[T]he question to 

be addressed under [prong four] is 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 permanent disruption of her relationship 
16 A-2083-17T3

with her foster parents." I.S., 202 N.J. at 181 (quoting In re Guardianship of 

J.N.H., 172 N.J. 440, 478 (2002)).

Generally, to prove the fourth prong, the Division "should offer testimony 

of a well[-]qualified expert who has had full opportunity to make a 

comprehensive, objective, and informed evaluation of the child's relationship 

with both the natural parents and the foster parents." F.M., 211 N.J. at 453 

(quoting N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 281 

(2007)); see also R.G., 217 N.J. at 564 (finding the Division's position lacked 

support because "no bonding evaluation was conducted"); N.J. Div. of Youth 

and Family Servs. v. A.R., 405 N.J. Super. 418 (App. Div. 2009) (affirming an 

order denying the termination of parental rights where no bonding evaluation 

was conducted).

The court accepted Miller's testimony that Robert "would suffer greater 

harm from lack of permanency now at the age of almost eleven," than he would 

by severing his relationship with Rhonda. He lived with her for less than three 

years, and his multiple placements are not "healthy," as aptly pointed out by the 

court, because Robert needs "nurturing adults" in his life. Burr and Figurelli's 

opinions were found to be "faulty" by the court because Burr inaccurately opined 

that Rhonda was Robert's primary parental figure but conceded an appropriate 
17 A-2083-17T3

caregiver could mitigate harm to Robert. Figurelli "could not articulate any 

circumstances under which he would recommend termination of parental 

rights," and the court rightfully rejected his opinion as "unbelievable" on its 

face. Miller's expert testimony provides clear and convincing evidence that the 

Division established the fourth prong of the best interests of the child test.

The court reviewed the evidence presented at the trial, made detailed 

factual findings as to each prong of N.J.S.A. 30:4C-15.1(a), and thereafter 

concluded the Division met, by clear and convincing evidence, all of the legal 

requirements for a judgment of guardianship as to both defendants. The court's 

opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a), accords 

with F.M., 211 N.J. 420, E.P., 196 N.J. 88, K.H.O., 161 N.J. at 347-48, DMH, 

161 N.J. 365, and A.W., 103 N.J. 591, and is more than amply supported by the 

record. F.M., 211 N.J. at 448-49.

We also conclude that the court appropriately denied Rhonda's motion for 

parenting time pending appeal, and that issue is now moot.

Affirmed.