RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3820-19

NEW JERSEY DIVISION 

OF CHILD PROTECTION 

AND PERMANANCY,

Plaintiff-Respondent,

v.

M.P.,

Defendant-Appellant,

and

J.S.,

Defendant.

_________________________

IN THE MATTER OF THE 

GUARDIANSHIP OF M.S.,

a minor.

_________________________

Argued September 15, 2021 – Decided October 15, 2021

Before Judges Hoffman and Susswein.

NOT FOR PUBLICATION WITHOUT THE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-3820-19

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Sussex County, 

Docket No. FG-19-0021-20.

Ryan T. Clark, Designated Counsel, argued the cause 

for appellant (Joseph E. Krakora, Public Defender, 

attorney; Ryan T. Clark, on the briefs).

Mary L. Harpster, Deputy Attorney General, argued the 

cause for respondent (Andrew J. Bruck, Acting 

Attorney General, attorney; Sookie Bae, Assistant 

Attorney General, of counsel; Mary L. Harpster, on the 

brief).

 

David Valentin, Assistant Deputy Public Defender, 

argued the cause for minor (Joseph E. Krakora, Public 

Defender, Law Guardian, attorney; Meredith Alexis 

Pollock, Deputy Public Defender, of counsel; David 

Valentin, of counsel and on the brief).

PER CURIAM

Defendant M.P. (the mother) appeals from a May 28, 2020 Family Part 

order terminating her parental rights to her son M.S. (the child), born in 2012, 

and awarding guardianship to the Division of Child Protection and Permanency 

(the Division).1 Judge Michael C. Gaus presided over the guardianship trial, 

entered judgment, and rendered a ninety-page opinion. Defendant contends the 

Division failed to satisfy its burden at the trial. After carefully reviewing the 

1 The child's father voluntarily surrendered his parental rights and is not a party 

to this appeal. 
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record, we affirm substantially for the reasons explained in the trial judge's 

comprehensive and detailed written opinion.

Judge Gaus aptly characterized the circumstances of this case as 

"heartbreaking." The child is diagnosed with autism and attention deficit 

hyperactivity disorder (ADHD). He is essentially non-verbal and requires 

significant care for his special needs. Before his removal by the Division, the 

child lived with defendant and her mother (the grandmother). Both have 

intellectual challenges that place them in the "[e]xtremely [l]ow range" of 

cognition. 

As a result of defendant's profound cognitive impairment, she is unable to 

fully understand the child's limitations, leading her to use inappropriate levels 

of physical and emotional discipline, including corporal punishment. She 

admitted to the Division that she intends to "use the hand" to raise the child 

because that is how she was raised by her own mother—the grandmother. 

Defendant stated, "[t]here's no way of changing. I can't hold back with not 

hitting him anymore." 

Relatedly, defendant does not appear to understand how her actions led to 

the child's removal, as shown, for example, by her relationship with her 

boyfriend, who is a registered sex offender. She falsely told the Division she 
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had ended the relationship, later admitting to a therapist that they were still 

living together but keeping their relationship "hush hush." 

On appeal, defendant argues: 

[POINT I]

THE TRIAL COURT'S FINDINGS WERE 

INCOMPLETE AND INADEQUATE TO SUSTAIN A 

JUDGMENT TERMINATING [DEFENDANT'S] 

PARENTAL RIGHTS BY CLEAR AND 

CONVINCING EVIDENCE AS REQUIRED BY 

N.J.S.A. 30:4C-15 AND 30:4C-15.1.

[POINT II]

THE TRIAL COURT ERRED IN FINDING THAT 

DCPP DEMONSTRATED BY CLEAR AND 

CONVINCING EVIDENCE THAT [THE CHILD'S]

HEALTH AND DEVELOPMENT HAS BEEN OR 

WILL CONTINUE TO BE ENDANGERED BY THE 

PARENTAL RELATIONSHIP UNDER THE FIRST 

PRONG. [THE CHILD] WAS SUCCESSFULLY 

PARENTED BY [DEFENDANT] UNTIL HIS 

REMOVAL BY DCPP. DESPITE REMOVING [THE 

CHILD] FROM [DEFENDANT] DUE TO A SINGLE 

HAND SLAP, DCPP DOCUMENTED THAT [HE]

WAS NEATLY DRESSED, WELL GROOMED, 

"LAUGHING" AND GIVING DCPP 

INVESTIGATORS HIGH FIVES. SELFEVIDENTLY, THE SON WAS NEVER HARMED BY 

[DEFENDANT]. 

[POINT III]

THE TRIAL COURT ERRED IN FINDING THAT 

DCPP DEMONSTRATED BY CLEAR AND 

CONVINCING EVIDENCE THAT [DEFENDANT] 
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WAS UNWILLING OR UNABLE TO ELIMINATE 

THE ALLEGED HARM FACING [THE CHILD] OR 

IS UNABLE OR UNWILLING TO PROVIDE A SAFE 

AND STABLE HOME FOR HIM AND THE DELAY 

OF PERMANENT PLACEMENT WILL ADD TO 

THE HARM UNDER THE SECOND PRONG. 

A. DCPP'S OWN SERVICE PROVIDERS AND 

TRIAL EXPERTS PROVE THAT 

[DEFENDANT] CAN REUNIFY HER SON 

AND TREAT HIS AUTISM. BY THE TIME OF 

TRIAL, DCPP DOCUMENTED THAT [THE 

CHILD'S] AUTISM IS "NOT SEVERE IN 

NATURE" AND HE "IS NOT EXHIBITING 

ANY BEHAVIORAL ISSUES." 

[POINT IV]

THE DIVISION FAILED TO PROVE PRONG THREE 

WAS MET WHERE IT FAILED TO PROVIDE 

SERVICES THAT WERE REASONABLE UNDER 

ALL THE CIRCUMSTANCES AND THE COURT 

DID NOT EXPLORE ALTERNATIVES TO 

TERMINATION. 

A. DCPP'S CARELESS APPROACH, RATHER 

THAN TAILORED SERVICES, WAS NOT 

REASONABLE. 

B. THE COURT ERRED BY FINDING THAT 

DCPP CONSIDERED ALTERNATIVES TO 

TERMINATION WHERE IT REFUSED TO 

PLACE [THE CHILD] WITH HIS 

GRANDMOTHER. 
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[POINT V]

THE TRIAL COURT ERRED IN FINDING THAT 

DCPP DEMONSTRATED BY CLEAR AND 

CONVINCING EVIDENCE THAT TERMINATION 

OF [DEFENDANT'S] PARENTAL RIGHTS WILL 

NOT DO MORE HARM THAN GOOD WHERE [THE 

CHILD] HAS BEEN PLACED AND REMOVED 

FROM SIX FOSTER CARE HOMES BY DCPP 

PROVING THAT FOSTER CARE HAS NOT LED TO 

A SCINTILLA OF PERMANENCY. 

I.

The legal framework regarding the termination of parental rights is wellestablished. Parents have a constitutional right to the care, custody, and control 

of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); see also In re 

Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citation omitted) 

(recognizing that "[a] parent's right to enjoy a relationship with his or her child 

is constitutionally protected"). That right "is among the most fundamental of all 

rights." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 447 (2012) 

(citing N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 102 (2008)). A 

parent's constitutional right to raise his or her child is not absolute, however. 

N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 553 (2014). At times, 

a parent's interest must yield to the State's obligation to protect a child from 

harm. N.J. Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 397 (2009). "In 
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some instances this may require a partial or complete severance of the parentchild relationship." N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 

599 (1986) (citation omitted). 

To effectuate these concerns and balance the competing interests, the 

Legislature formulated a multi-part test to determine when it is in the child's best 

interests to terminate parental rights. Specifically, N.J.S.A. 30:4C-15.1(a) 

(2015) requires the Division to prove four prongs 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 

serious and enduring emotional or psychological harm 

to the child;2

(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 

2

 The last sentence of this paragraph was deleted by L. 2021, c. 154, § 9. At 

oral argument, counsel for defendant, the Division, and the law guardian agreed 

that the recent revision to the statutory best-interests test has no impact on this 

case.
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the court 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 rather "relate to and overlap with one another to provide a 

comprehensive standard that identifies the 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 addresses 

the specific circumstances in the given case." Ibid. (quoting In re Adoption of 

Child. by L.A.S., 134 N.J. 127, 139 (1993)).

When applying the best-interests test, a trial court must pay particular

attention to a child's need for permanency and stability. In re Guardianship of 

D.M.H., 161 N.J. 365, 385–86 (1999). The trial court must consider "not only 

whether the parent is fit, but also whether he or she can become fit within time 

to assume the parental role necessary to meet the child's needs." N.J. Div. of 

Youth & Fam. Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006) (citing In 

re Guardianship of J.C., 129 N.J. 1, 10 (1992)).

The scope of our review is limited. Factual findings by a Family Part 

judge are "binding on appeal when supported by adequate, substantial, and 
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credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova 

Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)); see also N.J. Div. 

of Youth & Fam. Servs. v. M.M., 189 N.J. 216, 279 (2007). The deference we 

afford reflects the family court's specialized knowledge and experience. F.M., 

211 N.J. at 427. Accordingly, we may reverse a factual finding only if there is 

"'a denial of justice' because the family court's 'conclusions are [ ] "clearly 

mistaken" or "wide of the mark."'" Parish v. Parish, 412 N.J. Super. 39, 48 (App. 

Div. 2010) (alteration in original) (quoting E.P., 196 N.J. at 104). An appellate 

court should not disturb the trial court's findings unless it is "convinced that they 

are so manifestly unsupported by or inconsistent with the competent, relevant, 

and reasonably credible evidence as to offend the interests of justice." Cesare, 

154 N.J. at 412 (quoting Rova Farms, 65 N.J. at 484). 

The deference we accord to findings made by a Family Part judge applies 

in parental termination cases. See In re Guardianship of J.N.H., 172 N.J. 440, 

472 (2002). "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." R.L., 388 N.J. Super. 

at 87. The factual findings that support such a judgment "should not be disturbed 
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unless 'they are so wholly unsupportable 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, 65 N.J. at 483–84); see also E.P., 196 N.J. at 

104. 

II.

Defendant contends the trial court abused its discretion with respect to all 

four prongs of the best-interests test. We disagree. We conclude the Division 

proved all four prongs by clear and convincing evidence. As noted above, we 

affirm substantially for the reasons articulated by Judge Gaus in his 

commendably detailed and thorough written opinion. We add the following 

comments.

The Division's decision to shift the permanency goal from reunification to 

adoption was made only after years of concerted efforts by the Division to 

provide services to keep the family intact. Despite defendant's contrary claim, 

the record amply supports the trial court's determination that the Division 

provided extensive individualized, carefully tailored services to both the 

defendant and the grandmother. There have been numerous psychological 
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evaluations, bonding evaluations, supervised visitations, and individualized 

psychotherapy. 

We note further that the Division presented extensive evidence at the 

guardianship trial, including testimony from multiple expert witnesses whom 

the trial judge found to be credible. The Division's experts opined that despite 

the Division's efforts, defendant will not be able to provide a safe and stable 

home for the child. The law guardian's expert reached the same conclusion, and 

even defendant's expert questioned her ability to safely parent the child. 

We recognize that defendant's shortcomings as a parent can be attributed 

in large part to her cognitive limitations—a circumstance beyond her control. 

As we have already noted, defendant struggles to understand why the child was 

removed and why the Division sought to terminate her parental rights. In view 

of her severe cognitive limitations, we believe she is morally blameless for the 

manner in which she exercised her parental responsibilities. We must focus, 

however, on the best interests of the child. Those interests require termination 

of parental rights notwithstanding that defendant is not blameworthy by reason 

of circumstances beyond her control. In A.W., our Supreme Court commented, 

"[w]e cannot determine how much the inability of the parents to transfer 

affection or care to their children may be attributed to the parents' being short-
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changed by either nature or society." 103 N.J. at 614–15. The Court added, 

"[p]arents are not to be adjudged unfit because they lack resources or 

intelligence, but only by reason of conduct detrimental to the physical or mental 

health of the child, specifically in the form of actual or imminent harm." Id. at 

616. Applying the credible evidence adduced at the guardianship trial to that 

foundational principle, we agree with the trial judge that despite the sustained 

efforts by the Division to provide services and assistance, defendant is and will 

continue to be unable to address the child's special needs. 

Finally, we address defendant's contention that the Division's efforts 

"[have] not led to a scintilla of permanency" and that termination of defendant's 

parental rights will do more harm than good. As noted, we pay particular 

attention to a child's need for permanency and stability. D.M.H., 161 N.J. at 

385–89. Regrettably, the child in the course of his young life has been placed 

in six resource homes and everyone agrees that adoption will be challenging. 

The evidence presented by the Division pertaining to the fourth prong, while 

meeting the clear and convincing standard of proof, presents a closer question 

than with respect to the other three prongs of bests-interests test. 

As we have explained, the fourth prong requires the Division to 

demonstrate that "[t]ermination of parental rights will not do more harm than 
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good." N.J.S.A. 30:4C-15.1(a)(4). The fourth prong "'serves as a fail-safe 

against termination even where the remaining standards have been met.'" E.P., 

196 N.J. at 108 (quoting N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 

609 (2007)). In determining whether the fourth prong has been established, the 

trial court may rely on expert testimony and when conducting its analysis, it may 

balance the potential injury that a child could experience through the termination 

of parental rights against the harm that the child might suffer if removed from 

the resource placement. See K.H.O., 161 N.J. at 355 ("Weighing the potential 

harm that terminating [the child's] relationship with her mother against that 

which might come from removing her from her foster home is painfully difficult, 

but it is a decision that necessarily requires expert inquiry specifically directed 

to the strength of each relationship.") (quoting J.C., 129 N.J. at 25). 

The case before us does not present a situation where termination of 

parental rights is a prerequisite for an impending adoption. Cf. N.J. Div. of 

Youth & Fam. Servs. v. B.G.S., 291 N.J. Super. 582, 592–95 (App. Div. 1996)

(recognizing that termination of parental rights is necessary when it permits a 

child to have a secure and permanent home). In E.P., our Supreme Court 

recognized that "terminating parental rights without any compensating benefit, 

such as adoption, may do great harm to a child." 196 N.J. at 109 (quoting A.W., 
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103 N.J. at 610–11). "Such harm," the Court explained, "may occur when a 

child is cycled through multiple foster homes after a parent's rights are severed."

Ibid. The Court also noted, "[i]t has been 'suggested that [a] decision to 

terminate parental rights should not simply extinguish an unsuccessful parentchild relationship without making provision for . . . a more promising 

relationship . . . [in] the child's future.'" Id. at 108 (alteration in original) 

(quoting A.W., 103 N.J. at 610). 

There is, however, no categorical rule that precludes termination of 

parental rights unless and until the Division has lined up a permanent placement 

for the child. As the Court in E.P. acknowledged, "[w]e know that '[t]ermination 

of parental rights does not always result in permanent placement of the child'

and 'that too many children "freed up" for adoption do not in the end find 

permanent homes.'" Id. at 109 (quoting J.C., 129 N.J. at 21). 

In E.P., the Court reversed the order terminating parental rights, 

concluding the Division failed to satisfy the fourth prong by clear and 

convincing evidence. Id. at 110. Defendant's reliance on this decision is 

misplaced since the circumstances that necessitated the result in E.P. are readily 

distinguishable from the case now before us. In E.P., parental rights were 

terminated "based in large part on [E.P.'s] addiction to drugs, psychological 
15 A-3820-19

problems, and unstable lifestyle, all of which made her unfit to care for her child 

for most of the child's life." Id. at 92. Despite those challenges, which included 

a period of incarceration, E.P. managed to maintain a relationship with her 

daughter and visited her as frequently as the court permitted. Id. at 93–94. 

Throughout a period of nine years, E.P. attended multiple in-patient and outpatient rehabilitation programs to address her heroin addiction, and despite 

occasional relapses, she eventually found a job and an apartment. Id. at 94. She 

also completed a parenting skills program and for the most part complied with 

the Division's reunification plan, which involved submitting to psychological 

evaluations, random drug testing, psychotherapy, and medication-assisted 

(methadone) drug rehabilitation. Ibid. The Division ultimately filed a 

guardianship complaint seeking the termination of her parental rights because 

of her "intractable drug problem." Ibid. 

The daughter, who was almost thirteen years old, was emotionally fragile 

and unstable, and had been placed in twelve different foster homes. Id. at 92, 

95. During this time, E.P. still visited her daughter, who was developing a 

positive relationship with E.P.'s boyfriend. Id. at 95. The daughter exhibited 

behavioral problems as she moved between resource placements, ranging from 

tantrums and explosive outbursts to assaulting other children and physically 
16 A-3820-19

threating various foster parents. Ibid. Significantly, she also threatened or 

attempted to kill herself on multiple occasions, which culminated with her 

transfer to an "emergency" foster placement and treatment home. Ibid. The 

daughter asked to be reunited with her mother repeatedly, and even told a teacher 

that if she could not be with E.P., she wanted to die. Id. at 95–96. 

During the guardianship hearing, the family court judge encouraged the 

Division to reconsider kinship guardianship because of E.P.'s age and her 

attachment to her mother. The judge noted that the daughter "had no desire to 

be adopted and therefore an attempt at adoption would likely be 'futile.'" Id. at 

97. The daughter's law guardian, moreover, opposed termination and believed 

that the judge focused too much on E.P.'s parental shortcomings rather than on 

the significant harm termination would cause the daughter. Id. at 98–99, 106. 

The judge nonetheless terminated E.P.'s parental rights. In reversing that 

decision, the Supreme Court noted that the trial court terminated E.P.'s parental 

rights, "with a marked reluctance, understanding that its conclusion that 

termination would not do more harm than good was a prediction, at best." Id. at 

110. On those facts, the Supreme Court held that the record did not support the 

conclusion that the Division satisfied the fourth prong by clear and convincing 

evidence. Ibid. 
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In the case before us, the child has been in six resources homes and the 

experts all agree that his permanent placement will be difficult. However, in 

stark contrast with the situation in E.P., the child never developed a strong bond 

with defendant or the grandmother. We recognize, as did Judge Gaus, that the 

child's special needs and emotional and cognitive limitations make it difficult to 

ascertain the depth and strength of his bond with his mother and grandmother. 

Even so, as Judge Gaus found, defendant's own expert "was unable to say...that 

the child is currently securely bonded to [defendant] or the grandmother." 

Furthermore, it reasonably appears the child is presently in a stable 

resource placement. The Division explained at oral argument that the current 

resource family, while not prepared to adopt the child, has expressed its 

commitment to serve as a resource placement until the child is adopted. In these 

circumstances, there is no reason to believe the child will be "cycled through 

multiple foster homes after [the mother's] rights are severed." See A.W., 103 

N.J. at 611. We therefore conclude the trial judge did not abuse his discretion 

in determining that the Division satisfied the fourth prong by clear and 

convincing evidence. 

Affirmed.