                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5369-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

A.M.W.,

          Defendant-Appellant,

and

S.O.F..

     Defendant.
____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF T.O.F.,

     a Minor.
____________________________

                   Submitted May 11, 2020 – Decided June 5, 2020

                   Before Judges Rothstadt and Moynihan.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Essex County, Docket
            No. FG-07-0085-19.

            Joseph E. Krakora, Public Defender, attorney for
            appellant, A.M.W. (Robyn A. Veasy, Deputy Public
            Defender, of counsel; Laura Orriols, Designated
            Counsel, on the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Sookie Bae-Park, Assistant Attorney
            General, of counsel; Casey Jonathan Woodruff, Deputy
            Attorney General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Meredith Alexis Pollock, Deputy
            Public Defender, of counsel; Nancy P. Fratz, Assistant
            Deputy Public Defender, of counsel and on the brief).

PER CURIAM

      Defendant A.M.W. (Amy) appeals from a judgment of guardianship

terminating her parental rights to her son T.O.F. (Tommy)—born in 2012—and

awarding guardianship to plaintiff, New Jersey Division of Child Protection and

Permanency (Division), which was entered after a two day trial. 1 Amy argues

the Division failed to meet its burden to establish by clear and convincing

evidence that her admitted substance abuse impacted her ability to care for



1
  We repeat the pseudonyms defendant used in her merits brief to protect Amy
and Tommy's privacy and preserve the confidentiality of these proceedings. R.
1:38-3(d)(12); R. 5:12.
                                                                       A-5369-18T3
                                      2
Tommy, and the trial court's termination decision was "not supported with

adequate, substantial and credible evidence." Instead,

            [b]ecause there [was] no actual abuse or neglect in this
            case, the removal and continued separation of mother
            and child [was] premised on the idea of a substantial
            risk of harm from the mother's struggle with addiction.
            However, the [Division] failed to produce any evidence
            that the allegation that the child was in danger of his
            parental relationship with his mother was reasonable.
            There were no contacts with unsavory individuals,
            dealers or users. There were no house parties or times
            when the child was left unattended.

We disagree. The trial court's conclusions are supported by clear and convincing

evidence and the best interests of the child are served by termination of Amy's

parental rights; thus, we affirm.

      "Our review of a trial judge's decision to terminate parental rights is

limited." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

"The general rule is that findings by the trial court are binding on appeal when

supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154

N.J. 394, 411-12 (1998). We accord even greater deference to the trial court's

fact-finding "[b]ecause of the family courts' special jurisdiction and expertise in

family matters . . . ." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.

328, 343 (2010) (first alteration in original) (quoting Cesare, 154 N.J. at 413).

We will not disturb the trial court's factual findings unless they are "so wide of

                                                                           A-5369-18T3
                                        3
the mark that a mistake must have been made." N.J. Div. of Youth & Family

Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty Inc. v.

BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)).

      "Where the issue to be decided is an 'alleged error in the trial judge's

evaluation of the underlying facts and the implications to be drawn therefrom,'

we expand the scope of . . . review." N.J. Div. of Youth & Family Servs. v.

G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J.

Super. 172, 188-89 (App. Div. 1993)). The trial court's legal conclusions and

the application of those conclusions to the facts are subject to plenary review.

Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

      The Legislature has declared, as a matter of public policy, "[t]hat the

preservation and strengthening of family life is a matter of public concern as

being in the interests of the general welfare . . . ." N.J.S.A. 30:4C-1(a). Parental

rights, however, are not inviolable. N.J. Div. of Youth & Family Servs. v. A.W.,

103 N.J. 591, 599 (1986). "The balance between parental rights and the State's

interest in the welfare of children is achieved through the best interests of the

child standard." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Before

parental rights may be terminated, the Division must prove the following four

prongs by clear and convincing evidence:


                                                                            A-5369-18T3
                                         4
            (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 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
            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).]


See also A.W., 103 N.J. at 604-11. The standards "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.

      Amy contends the trial court erroneously found the first statutory prong

was met by evidence that Tommy was born methadone-exposed; he was twice

removed from Amy by the Division; Amy admitted to drug use while caretaking

Tommy; and an expert opined Amy had "parenting deficits." She argues that

                                                                        A-5369-18T3
                                         5
evidence does not clearly and convincingly prove "the relationship between

Tommy and his mother was detrimental to his health and development."

      The record, however, demonstrates that and other evidence established the

first prong. In determining if the Division met its burden with regard to the first

prong, we consider not only "whether the parent has harmed the child[, but also

whether the parent] may harm the child in the foreseeable future." N.J. Div. of

Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 113 (App Div. 2004). The

Division "does not have to wait 'until a child is actually irreparably impaired by

parental inattention or neglect'" to satisfy this prong. N.J. Div. of Youth &

Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (quoting In re Guardianship of

D.M.H., 161 N.J. 365, 383 (1999)).          "Serious and lasting emotional and

psychological harm to children as the result of 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). "A

parent's withdrawal of that solicitude, nurture, and care for an extended period

of time is in itself a harm that endangers the health and development of the

child." D.M.H., 161 N.J. at 379. "When the condition or behavior of a parent

causes a risk of harm, such as impermanence of the child's home and living

conditions, and the parent is unwilling or incapable of obtaining appropriate


                                                                           A-5369-18T3
                                        6
treatment for that condition, the first subpart of the statute has been proven."

N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 223 (App. Div.

2013).

      The record evidence, including Amy's admissions, supports the trial

court's findings of fact, delineated in its fifty-six-page written decision, upon

which we base our decision. The trial court determined Tommy's "safety, health

and development" was endangered by his relationship with Amy. Tommy's

methadone exposure at birth evidenced Amy's long-standing, ongoing drug

abuse that she admitted started when she was fourteen-years-old2 with marijuana

use, progressed to heroin use at age fifteen and then to cocaine use in 1997.

      The first Dodd removal 3 in May 2014, took place after Amy tested

positive for cocaine. The Division substantiated her for abuse or neglect after

she admitted using four to five bags of cocaine at least once per week while

caretaking her children. The second removal occurred after Amy—who left

Tommy with B.H., whom she identified as his godmother—was admitted to a

hospital in January 2017 and tested positive for cocaine, methadone and opioids.



2
  Amy was born June 7, 1975.
3
  Prior to obtaining a court order, the Division may remove a minor in an
emergency. N.J.S.A. 9:6-8.21 to -8.82 (the "Dodd Act"); see also N.J. Div. of
Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
                                                                         A-5369-18T3
                                       7
Although Amy denied drug use, she admitted going to a methadone clinic and

later admitting to ingesting cocaine and heroin. In fact, she tested positiv e for

all three substances during a drug screen performed four days prior to her

hospital admission.

      The removals showed not only the duration of Amy's drug use, but that

her use took place—as she admitted—while Tommy was in her care. The trial

court's finding that Amy "admitted to the abuse and neglect of [Tommy] because

of a 'significant history of substance abuse, spanning at least seventeen years,

indicating a pattern of substance abuse and relapsing on cocaine and heroin,

while remaining in the caretaking role of [Tommy,]'" is well-supported by the

record.

      Despite her expressed desire to complete an intensive outpatient program,

maintain sobriety, mental health treatment and continued compliance with

substance abuse treatment, Amy: "was inconsistent in attendance and testing

positive for illicit drugs" while in treatment at Integrity House in August 2014;

was admitted to an Integrity House inpatient substance abuse program that

month, but was discharged in September 2014 because she had a physical

altercation there; re-entered the program in October 2014 and "agreed to comply

with [the] substance abuse program at Integrity and any next[-]level


                                                                          A-5369-18T3
                                        8
recommendations; participate in parenting skill classes; and to comply with

mental health treatment"; in February 2015, expressed a desire to leave the

program, where she "was receiving parenting skills, individual therapy and

psychiatric medication monitoring" because "she did not realize it was a long -

term program"; nonetheless completed the Integrity House program in March

2015 "and was discharged to complete further treatment at the Integrity House

– WISE program."

      Unfortunately, in June 2015, two of Amy's three urine screens were

positive for cocaine and she had missed treatments; Amy admitted relapsing in

May 2105; in July 2015, four of Amy's six urine screens were positive for

cocaine and one for alcohol, and she missed treatments. The WISE program did

not report any further positive drug screen and, although it reported in October

2015 that Amy's attendance was poor, she successfully completed the program

requirements in December 2015. After testing negative the following month,

Amy and Tommy were reunited in February 2016, and the Division closed its

case in November 2016.

      Two months later, the Division received a referral after Amy's hospital

admission. It ultimately effectuated the second Dodd removal after she tested

positive for, and admitted, heroin and cocaine use. She entered an intensive


                                                                        A-5369-18T3
                                       9
outpatient program at East Orange Substance Abuse Program in February 2017.

She tested positive in February, March and April, and was discharged from the

program. Thereafter, she attended the Sunrise House substance abuse program

for relapse prevention and group therapy, where she was reported compliant in

August and December 2017. She also engaged in psychiatric treatment at

Newark Beth Israel Medical Center "for major depressive disorder and post -

traumatic stress disorder, but acknowledged that she was not taking the

prescribed medication." And, although she missed or canceled without adequate

notice three scheduled appointments with CYFS – YDC4 (CYFS), in November

2017, CYFS reported she attended consistently; in March 2018, CYFS reported

that though she missed some sessions, Amy "appeared motivated to process her

trauma and maintain her sobriety."

      In April 2018, the Division's permanency plan to again reunify Amy and

Tommy was approved because she "was compliant with services; she was

receiving individual therapy and parenting skills classes at CYFS; substa nce

abuse treatment and methadone maintenance at Sunrise House[;] and she then

had unsupervised visits" with Tommy.


4
  CYFS is an acronym for Clinic for Youth & Family Solutions. YDC, an
acronym for Youth Development Clinic, is a section of CYFS with which the
Division contracts to provide services.
                                                                      A-5369-18T3
                                     10
      Supervised visitation was reinstated, however, after Sunrise House

reported Amy tested positive for cocaine. In June 2018, Amy advised the

Division that she did not want to take prescribed psychotropic medication

because she felt it was not needed. That month, CYFS reported Amy missed,

without adequate notice, three scheduled appointments in May and June, it

would not schedule additional appointments and would close Amy's case. Later

that month, YDC reported Amy's "expressed desire to continue with treatment

were inconsistent with her actions"; despite being warned on June 19 that it

would close her case if she missed any more appointments, she missed one on

June 26. On July 10, 2018, YDC closed Amy's case for lack of attendance.

      In September 2018, Sunrise house "reported that despite [Amy's] initial

success, she exhibited problematic behaviors, had misdirected anger and was

combative and argumentative," and recommended her care level be changed to

intensive outpatient treatment. Amy advised the Division "she could not go to

Sunrise Clinical because the clients were 'really crazy.'"

      An October 4, 2018 court order noted Amy tested positive for various

controlled dangerous substances in March, May, June, July, August and

September. Her treatment at Sunrise had stagnated in November 2018 to the

point that she was transferred to American Habitare & Counseling, Inc. That


                                                                      A-5369-18T3
                                       11
month, the Division also noted Amy was not addressing her mental health and

referred her to Rutgers Behavioral Early Intervention Support Systems. In

February 2019, Habitare reported Amy had not taken prescribed medications.

The following month, Habitare reported Amy tested positive for cocaine twice

in February and once in early March but tested negative later in March; it also

said Amy met her monthly requirements of meeting with her primary counselor

and in group session, and submitting to urine screens. In April 2019, Habitare

reported Amy was not compliant, inconsistent and tested positive for cocaine.

On June 25, 2019, Habitare reported:

            To date, [Amy] ha[s] not met her monthly
            requirements. [Amy] has not attended treatment for the
            month of June with the exception of once. [Amy] has
            [attended] for the month of May as scheduled, but has
            not attended any group session as required. [Amy] is
            monitored for uds for the month of May and June as
            follow[s]: May 9[] and 13[] tested negative for illicit
            substances. May 21[] tested positive for cocaine and
            May 29[] tested negative. June 5[] tested negative for
            illicit substances. June 11[] tested positive for cocaine,
            and June 19 tested positive for oxycodone. [Amy] is
            also scheduled to see the program APN every [three]
            months and is prescribed Prazosin 2 mgs. For Night
            Terrors. [Amy's] attendance at treatment program has
            not been consistent and she is not an active participant
            of treatment program. Patient [h]as not attended any
            scheduled groups as a requirement of treatment
            program.



                                                                         A-5369-18T3
                                       12
      Not only do the trial court's findings support that Amy's drug use while

Tommy was in her care presented a danger to his safety and health, her continued

drug use and failures to address both her substance abuse and mental health

issues evidence a continued danger for the foreseeable future. See C.S., 367

N.J. Super. at 113. Amy's inability and, at times, unwillingness, to obtain and

complete appropriate treatment caused a risk of harm to Tommy, including his

continued impermanent home life. See H.R., 431 N.J. Super. at 223.

      As Dr. Elizabeth Stilwell, whose qualifications as an expert in psychology

and bonding were stipulated by the parties and found by the trial court, opined:

            The available history and current data suggests that
            [Amy] presents with a number of parenting deficits that
            have not been ameliorated to the point of her becoming
            a viable parenting option for [Tommy]. Despite being
            given several opportunities to achieve stability, [Amy]
            continues to engage in self-defeating behaviors and has
            not complied with recommended services. To [Amy's]
            credit, she appears to love her son and wants to care for
            him. Her parenting assessment suggests that she has a
            rational and factual understanding of parenting and
            child rearing practices. However, she lacks the
            emotional resources and fortitude to achieve stability in
            her own life let alone a child with emotional and
            behavioral needs. Additionally, [Amy] does not appear
            to appreciate that harm she continue[s] to perpetrate by
            inconsistently visiting and remaining in contact with
            her son. In accordance with prior psychological
            opinions, [Amy's] inability to engage in services and
            consistently attend visitation with [Tommy] is
            indicative of [her] inability to parent.

                                                                         A-5369-18T3
                                      13
             It is the opinion of this evaluator, within a reasonable
             degree of psychological certainty that the totality of
             available information suggests that [Amy] is unlikely
             to become a viable parenting option for [Tommy] in the
             foreseeable future.

      The trial court's acceptance of that unrebutted opinion also supports a

finding of harm engendered, not only by Amy's inability to parent, but by her

long and continual absences from Tommy's life because of her many attempts —

and failures—to free herself from the grip of cocaine and other drugs. See

K.L.F., 129 N.J. at 43-44; D.M.H., 161 N.J. at 379. All that time, Tommy was

cared for, not by his mother, but by resource parents. And the record reveals

Amy frequently missed visits with Tommy, last visiting him on July 3, 2019,

despite having Division-provided transportation.         The Division's evidence,

including Amy's admissions, as found by the trial court from competent

evidence it deemed credible, amply proved the first statutory prong.

      As is common, the proofs relating to the first and second prongs dovetail.

N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div.

2006).   The common proofs in this case support the trial court's findings

regarding the second prong which requires the Division to "demonstrate that the

parent is 'unable to eliminate the harm facing the child or is unable . . . to provide

a safe and stable home for the child' . . . . before any delay in permanent

                                                                              A-5369-18T3
                                         14
placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs.

v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001) (first alteration in original)

(quoting N.J.S.A. 30:4C-15.1(a)(2)).

            [T]he second prong may be met 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 . . . with the
            resultant neglect and lack of nurture for the child.

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

       Of great concern to the A.W. Court was the lack of evidence of "any

realistic likelihood that the parents would ever be capable of caring for the

children." 103 N.J. at 614. Even when parents are not blameworthy, parental

unfitness can be established when their behavior "indicates a further likelihood

of harm to the child in the future." Id. at 616.

      The trial court properly considered evidence, including Dr. Stilwell's

opinion, that Amy was unable to correct her "conduct within the reasonably

foreseeable future." N.J. Div. of Child Prot. & Permanency v. T.D., 454 N.J.

Super. 353, 380 (App. Div. 2018). That evidence proved that the harm to

Tommy would continue because Amy was unable or unwilling to overcome or

remove it, thus satisfying the second prong. N.J. Div. of Youth & Family Servs.

v. P.P., 180 N.J. 494, 506-07 (2004).

                                                                         A-5369-18T3
                                        15
      Amy failed to avail herself of the provided services to address her co-

occurring problems and her resultant failure to consistently provide a safe and

stable home for Tommy. As Dr. Stilwell testified, Amy's entwined substance

abuse and mental health issues "negatively impact[ed] her prognosis." Her

absence from Tommy's life necessitated alternate caregivers, chiefly B.H. who

consistently stepped into the breach to care for Tommy and provide support for

Amy. The trial court considered Amy's conduct and Dr. Stilwell's opinion that

Amy was not, nor in the foreseeable future would be, a source of permanency.

See K.H.O., 161 N.J. at 348-49, 363 (holding the second prong may be met by

showing "that the parent is unable to provide a safe and stable home for the child

and that the delay in securing permanency continues or adds to the child's harm,"

or "that the child will suffer substantially from a lack of stability and a

permanent placement and from the disruption of her bond with foster parents").

      The court also adopted Dr. Stilwell's view that Tommy would suffer a

traumatic loss that would produce significant and enduring harm which Amy

could not mitigate if he was separated from his psychological parent, B.H. This

evidence supported the court's conclusion that the Division proved the second

prong. See N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582,

592 (App. Div. 1996) (recognizing "harms attributable to a biological parent


                                                                          A-5369-18T3
                                       16
include the prolonged inattention to a child's needs, which encourages the

development of a stronger, 'bonding relationship' to foster parents, 'the severing

of which would cause profound harm'" (quoting In re Guardianship of J.C., 129

N.J. 1, 18 (1992))). As our Supreme Court held in K.H.O., 161 N.J. at 348-49,

harm may be "shown [by proof] that the parent is unable to provide a safe and

stable home for the child and that the delay in securing permanenc y continues

or adds to the child's harm."       Importantly, "[c]hildren must not languish

indefinitely in foster care while a birth parent attempts to correct the conditions

that resulted in an out-of-home placement." N.J. Div. of Youth & Family Servs.

v. L.J.D., 428 N.J. Super. 451, 483-84 (App. Div. 2012) (alteration in original)

(quoting N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 210

(App. Div. 2007)).

      Amy also argues the Division failed to prove part of the third statutory

prong because it failed to make a good faith effort to investigate relatives to care

for Tommy after his removal in May 2017. She claims the Division began its

investigation nearly two years later, when the court ordered it to investigate

relatives that she submitted when the Division "finally made . . . a request in

February 2019." She contends the delay contravened the Division's statutory

obligation to "initiate a search for relatives who may be willing and able to


                                                                            A-5369-18T3
                                        17
provide the care and support required by the child." N.J.S.A. 30:4C-12.1(a).

She argues the Division, in compliance with that statute, should have initiated a

search for relatives within thirty days after it took custody of Tommy.

      The argument overlooks the Division's efforts as found by the trial cou rt.

Within a week after the court granted the Division care, custody and supervision

of Tommy after his first removal in May 2014, Tommy was placed with B.H.,

who hosted visits between Amy and Tommy while Amy attended her program.

The Division placed Tommy with paternal grandmother, A.F., in September,

2014, but had to move him back with B.H. in August 2015, until he was placed

with a new resource parent the next month.

      In December 2015, after Amy resigned from her job, she was asked her

plans for supporting Tommy after reunification; among the resources she cited

were both B.H. and A.F. She also noted their continued support through 2016.

      With this contextual background, we are unsurprised that Amy did not

object to or press for an alternate placement after Tommy was placed with B.H.

after the second removal. The record is bereft of any request by Amy or her

counsel for an alternate placement while Amy attempted to address her issues.

We note as late as April 2018, that the permanency plan was to reunite mother




                                                                          A-5369-18T3
                                      18
and son. Meanwhile, B.H. continued to host visits between the two through

February 2019.

      In January 2019, Amy disagreed with the modified Division goal of

adoption and refused to supply names when the Division requested family

members with whom Tommy could be placed. Her counsel supplied names and

phone numbers for Amy's sister, W.W., and her aunt, J.L., to the court on

January 24, 2019. 5

      The Division contacted J.L. on February 11, 2019, and ordered

background checks. J.L. reported she had been incarcerated in 1989 on a drug

charge.   On May 1, 2019, the Division requested that she provide court

dispositions and written explanations of her criminal record. During an in-office

assessment on May 17, 2019, the Division reiterated the need for the requested

documents. When the documents were not submitted, the Division wrote a letter

to J.L. on June 3, 2019, requesting she send the specifically-detailed documents

within ten days. Although J.L delivered some documents to the Division office



5
  Amy does not argue the Division failed to satisfy the third prong with regard
to its investigation of A.F. or a possible placement in New York. As the trial
court found, A.F. was ruled-out because she was unable or unwilling to care for
Tommy because of her health and inadequate space in her home; and an
investigation of the New York home revealed "serious violations in the home
environment."
                                                                         A-5369-18T3
                                      19
on June 7, after review, it was explained what documents were missing. The

Division followed that explanation with a telephone call to J.L. on June 11.

      Similarly, the Division called W.W. on February 11, 2019, and left a

message. A letter to her sent on April 9, 2019 was returned on May 6, and the

Division called and left another message. 6 When the Division finally spoke to

W.W. on May 17, it requested documents relating to her criminal background.

The request was reiterated during a telephone call on June 4; the Division

followed that same day with a letter detailing the required documentation. Not

having received the documents, the Division repeated the request in a telephone

call on June 11, 2019.

      After the Division received Dr. Stilwell's report in June 2019, the Division

called J.L. on June 20 and advised she was being ruled out in Tommy's best

interests because the doctor opined Tommy would suffer loss and harm if

removed from B.H.; J.L. had yet to supply all requested documentation. The

Division also called W.W. that same day to advise her she was being ruled out



6
  In its written decision, the trial court noted a Division caseworker admitted
during her trial testimony that a letter sent to W.W. "listed the wrong address
and the child indicated on the second page was not [Tommy]. Nonetheless, the
court [found] credible [the caseworker's] explanation that she subsequently
provided a letter to [W.W.] and spoke with her." It is unclear to which letter the
court was referring.
                                                                          A-5369-18T3
                                       20
because she had not submitted the required documentation; her voice mailbox

was full.

      The Division's actions fairly met the "important objective of the statutory

scheme[: the] 'prompt identification of relatives and notice to them of the results

of the investigation and the potential for termination if the child remains in foster

care.'" N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 81 (App.

Div. 2013) (quoting N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J.

Super. 568, 580 (App. Div. 2011)). The Division's investigation, begun in early

February after counsel's disclosure in late January—following Amy's refusal

earlier that month to name relatives—could have been completed by the July

trial date had J.L. and W.W. cooperated. In any event, we cannot conclude the

Division embarked "on a course set for termination of parental rights and

adoption by a foster parent without at least first exploring available relative

placements," a practice we decried in J.S. Ibid. (quoting K.L.W., 419 N.J.

Super. at 580). In J.S., we held the Division is required to promptly "conduct

a fair investigation" of any identified relative:

             The Division cannot ignore such a relative's timely
             application out of bureaucratic inertia, or consider that
             application based upon an arbitrary, preordained
             preference for the foster placement. The Division must
             perform a reasonable investigation of such relatives


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             that is fair, but also sensitive to the passage of time and
             the child's critical need for finality and permanency.

             If, hypothetically, the Division has been lax or
             capricious in its assessment of such timely-presented
             alternative caretakers, it bears the litigation risk that a
             Family Part judge will conclude, under N.J.S.A. 30:4C-
             15.1(a)(3), that it has failed to prove by clear and
             convincing evidence that "alternatives to termination of
             parental rights" have been appropriately considered.

             [Id. at 87.]

      This, however, was not the case where the Division failed to investigate a

timely-disclosed relative. To be sure, "alternatives to termination of parental

rights" were considered as required by N.J.S.A. 30:4C-15.1(a)(3).

      N.J.S.A. 30:4C-12.1, in addition to requiring the Division to search for

and assess relatives after it accepts a child in its custody, allows the Division "to

pursue the termination of parental rights if [it] determines the termination of

parental rights is in the child's best interests." N.J.S.A. 30:4C-12.1(c).

According deference to the Division's interpretation of the "best interests"

language in the statute, we determined the statute did not create a "presumption

in favor of placing children with competent and willing relatives. . . . The reality

is that, no matter how fit or willing a proposed relative may be, a child will, in

some instances, be better off remaining in a successful foster placement." J.S.,

433 N.J. Super. at 85.

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      The reality is present in this record. As we already noted, Dr. Stilwell

opined that breaking the bond between Tommy and B.H. would not be in his

best interests. Certainly, neither J.L. nor W.W. had any significant bond with

Tommy. And, considering their failure to submit documentation regarding their

respective criminal histories, it is unknown if they were qualified as resource

parents.   Inasmuch as "there is no legal presumption in favor of a child's

placement with relatives," id. at 88, and Amy was not in any position to parent

Tommy, there is no evidence to controvert Dr. Stilwell's opinion, as adopted by

the trial court, that it was in Tommy's best interests to remain with B.H.

      The Division satisfied the fourth prong through Dr. Stilwell, who, the

evidence proves, was "a 'well qualified expert who has had full opportunity to

make a comprehensive, objective, and informed evaluation' of the child's

relationship with both [her natural parent] and [her resource] parent []." M.M.,

189 N.J. at 281 (quoting J.C., 129 N.J. at 19). Finding Dr. Stilwell's testimony

credible, the trial court evaluated the strength of Tommy's relationship to both

Amy and B.H., the relative harm that would befall Tommy if he was removed

from one or the other and the ability of each to ameliorate that harm. See

K.H.O., 161 N.J. at 355. The court found compelling the strength of the bond

between Tommy and B.H. and B.H.'s ability to ameliorate any harm caused by


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                                       23
the termination of Amy's thin bond with Tommy. The court quoted Dr. Stilwell's

observation:   "Preserving [Tommy's] relationship with his only consistent

caregiver would likely serve to mitigate any reaction, not significant or

enduring, he may experience through the loss of another relationship.           In

actuality, due to [Amy's] behavior, her relationship with [Tommy] has already

begun to be severed."      The court's decision was amply supported by Dr.

Stilwell's testimony and recognized that "a child has a right to live in a stable,

nurturing environment and to have the psychological security that his most

deeply formed attachments will not be shattered." F.M., 211 N.J. at 453.

      We recognize the trauma that Amy suffered during her life. But contrary

to her argument that she is a "beleaguered parent with an uneven track record,"

Amy has a consistent track record of inability to address the demons that have

been visited upon her, perhaps by that trauma, and also visiting those demons

on Tommy, directly by drug use while in her care and indirectly by her absence

as a mother providing safety, security and permanency in his life.

      We determine Amy's remaining arguments are without sufficient merit to

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

argument, not raised to the trial court, that Dr. Stilwell rendered a net opinion.

The trial court described in detail the doctor's record review, interviews,


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                                       24
behavioral observations and interpretation of administered psychological tests

used in reaching her opinions. The court's findings and our review of Dr.

Stilwell's comprehensive nineteen-page, single-spaced report leads us to

conclude the doctor set forth "the whys and wherefores rather than bare

conclusions"; hence she did not render a net opinion. Beadling v. William

Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div. 2002).

      Affirmed.




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