                                      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                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3585-18T4
                                                                    A-3586-18T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

A.H. and J.A.L.,

     Defendants-Appellants.
__________________________

IN THE MATTER OF THE
GUARDIANSHIP OF C.M.L.H.
and J.L., JR.,

     Minors.
__________________________

                   Submitted May 18, 2020 - Decided June 17, 2020

                   Before Judges Rothstadt and Mitterhoff.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Ocean County, Docket
                   No. FG-15-0048-18.
            Joseph E. Krakora, Public Defender, attorney for
            appellant A.H. (Robyn A. Veasey, Deputy Public
            Defender, of counsel; Dianne Glenn, Designated
            Counsel, on the brief).

            Joseph E. Krakora, Public Defender, attorney for
            appellant J.A.L. (Robyn A. Veasey, Deputy Public
            Defender, of counsel; Caitlin Avis Mc Laughlin,
            Designated Counsel, on the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Melissa H. Raksa, Assistant Attorney
            General, of counsel; Salima E. Burke, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor C.M.L.H. (Meredith Alexis Pollock,
            Deputy Public Defender, of counsel; Danielle Ruiz,
            Designated Counsel, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor J.A.L., Jr. (Meredith Alexis Pollock,
            Deputy Public Defender, of counsel; Todd S. Wilson,
            Designated Counsel, on the brief).

PER CURIAM

      In these consolidated appeals, A.H. (Amy) 1 and J.A.L. (Jim) appeal from

an April 8, 2019 order terminating their parental rights to their two children and

awarding the Division of Child Protection and Permanency (the Division)

guardianship over both children. On appeal, Jim argues that the Division failed


1
   Fictitious names are used to protect the privacy of the parties and the
confidentiality of the record. See R. 1:38-3(d)(12).
                                                                          A-3585-18T4
                                        2
to satisfy each prong of the best interests test, N.J.S.A. 30:4C-15.1(a), while

Amy contests only the judge's findings with respect to the part of prong three

that concerns the Division's efforts to reunite the family. Amy also argues that

the trial judge abused his discretion in denying her request for an adjournment

after she expressed dissatisfaction with her assigned attorney on the first day of

trial. We affirm substantially for the reasons given by the trial judge.

                                        I.

      This case involves two children, C.M.L.H. (Cindy), born in 2012, and J.L.,

Jr., (John), born in 2014. Cindy and John have been placed together with

resource parents since January 2017.

      The Division became involved with this family in March 2014. Amy was

eighteen years old, and Jim was thirty years old. They were living at Jim's

father's home with Cindy, and Amy was about three months pregnant with John.

The Division received a report from Amy's probation officer that Amy tested

positive for heroin, so it implemented a safety protection plan (SPP), requiring

Amy and Cindy to move in with Amy's mother and sister. During Amy's

incarceration for her probation violation, she spoke with a caseworker and

agreed to attend a substance abuse program, other than a Mommy and Me




                                                                           A-3585-18T4
                                        3
program. Soon after, the Division dropped the SPP and arranged for Amy's

mother and sister to care for Cindy.

      The Division arranged for Amy and Jim to attend substance abuse

evaluations, and both were recommended for an intensive outpatient program

(IOP). Amy was required to attend Women in Recovery Now at Preferred

Behavioral Health, which also provided parenting education and transportation

assistance, and Jim was referred to Seashore Family Services (SFS) and

provided with bus passes. Caseworker Jenise Williams continued home visits,

reminding the parents to attend their IOPs and urging them to reach out to

Women, Infants, and Children, NJ FamilyCare, and Ocean Health Initiatives.

      By June 2014, Amy moved back to Jim's father's home, and she eventually

stopped attending her program. When the caseworker visited the home, after

Jim tested positive for buprenorphine and THC, Amy and Jim agreed to attend

intakes at SFS, remain substance free while caring for Cindy, and maintain a

home free from substance abuse. During another home visit, Amy informed the

caseworker that Jim did not want to attend SFS because he was "having issues

with some of the participants," so she instructed Amy to have Jim discuss the

issue with his counselor. Jim stopped attending SFS and was discharged, but

soon after, he began a new IOP at Ocean Mental Health (OMH) and obtained a


                                                                      A-3585-18T4
                                       4
prescription for Suboxone.        Amy continued attending SFS and was

recommended for a level one outpatient program in October 2014.              She

successfully completed the program in March 2015, but the Division remained

concerned about the family, as Jim stopped taking his Suboxone for a while,

stopped attending OMH, and relapsed on cocaine and benzodiazepines.

      In addition to the above, the Division assisted the family by providing a

toddler bed and a crib, ensuring the parents had proper supplies and information

about caring for their children, and transporting the parents to the Board of

Social Services (BOSS) and to their programs.

      The caseworker continued home visits and noted that the children

appeared to be doing well, but there were issues regarding the children's dental

health. Amy and Jim delayed taking Cindy to the dentist to address her bottle

rot, so multiple appointments were needed to repair her teeth, and she eventually

needed to have her teeth removed. By December 2015, the caseworker noted

that John's teeth appeared to have "slight[] bottle rot," and when Amy and Jim

finally brought him to the dentist in May 2016, the dentist diagnosed him with

dental disease.

      Meanwhile, the family moved around for several months, raising concerns

about the stability of the home. The Division offered to pay for a security


                                                                         A-3585-18T4
                                       5
deposit if Amy and Jim identified a place to rent, as long as Jim was able to pay

the rent. The caseworker also instructed the parents to place their names on a

waiting list for low-income housing and to reach out to BOSS and local

churches. In February 2016, the family moved to a motel, and while Jim earned

enough to afford rent, he had not attended another substance abuse evaluation,

inhibiting the Division from assisting with a security deposit. Around the same

time, Jim's doctor stopped prescribing Suboxone because he continued to ask

for extensions on his prescription and reschedule appointments. A few months

later Jim finally attended an evaluation and was referred for partial

hospitalization.

      During May 2016 home visits, the caseworker found the family's home to

be in a deplorable condition, noting dirty sheets and dog feces lying around.

Thereafter, Amy tested positive for morphine, and Jim tested positive for

buprenorphine and opiates. The Division implemented another SPP, requiring

Amy to move to her grandmother's home, both parents to be supervised with the

children, and the children to attend daycare. The family relocated accordingly,

but a home visit revealed that Amy had been left alone with the children.

      In July 2016, a court order was issued, granting the Division care and

supervision of Cindy and John and requiring Amy and Jim to comply with the


                                                                         A-3585-18T4
                                       6
SPP, follow up with the children's health appointments, and cooperate with all

services recommended by the Division. The Division referred them to Family

Preservation Services (FPS), "a short-term intensive, in-home family education

and crisis intervention program with the primary objective of prevention of out-

of-home placement by enhancing family functioning and problem solving."

While Amy and Jim showed some improvement in parenting and household

management skills, their cooperation fluctuated, and their compliance was

minimal. Additionally, they initially refused to send the children to daycare and

only agreed to for a short time, after the FPS worker convinced them to comply.

      Meanwhile, Amy began an IOP at SFS in August 2016, but she was

discharged in December after she stopped attending. Jim also failed to complete

the programs he was ordered to attend at OMH earlier in the year.

      On October 14, 2016, Amy met with David R. Brandwein, Psy.D, for a

psychological evaluation.     Dr. Brandwein found that Amy "lacked insight

related to her parenting deficits and minimized and rationalized the Division's

concerns about her substance use and parenting capacity."             She "failed to

understand the impact of missed medical and other appointments on her

children's physical health and developmental progression."           Dr. Brandwein

diagnosed   Amy     with    unspecified       opioid-related   disorder, unspecified


                                                                             A-3585-18T4
                                          7
adjustment disorder, histrionic personality patterns, and borderline intellectual

functioning. He recommended that Amy complete a substance abuse treatment

program, aftercare, random urine screening, and FPS services; complete an IOP;

maintain sobriety for three months; and participate in short-term in-home

therapy.

      The following months showed no improvement, as Jim continued to miss

substance abuse evaluations and test positive for amphetamines and

buprenorphine. He also refused to meet with Dr. Brandwein.           Amy tested

positive for morphine and amphetamines and was referred to SFS but she was

discharged for failure to attend. The most notable concern was a neighbor's

report to the Division in January 2017 that one of the children drowned the

family kitten in a bathtub after they were left unsupervised, prompting the

Division to conduct an emergency removal of the children. Thereafter, the

Division was granted custody of the children, and it placed them in a non-

relative resource home. Cindy and John were enrolled in daycare and scheduled

for medical and dental examinations and neurodevelopmental evaluations,

which revealed that Cindy had vision and hearing problems, and John had

hearing, dental, and speech problems. Appropriate treatments were arranged.




                                                                         A-3585-18T4
                                       8
      Amy and Jim continued to show no signs of improvement. After Amy

reported a domestic violence incident between the two, she was referred to

domestic violence counseling and Jim to a domestic violence offenders program,

but neither of them attended. They were both incarcerated multiple times, and

when they were not, they were, at best, minimally compliant with drug

screenings, substance abuse evaluations, and counseling programs that the

Division scheduled.    Further, their attendance at visitations was sporadic,

prompting the judge to suspend visitation until therapeutic visitation was

arranged. Neither parent met with the counselor, so their therapeutic visitation

slot was closed. The Division re-referred them, and they were placed on a

waiting list. Amy and Jim did not see Cindy and John for several months .

      The Division struggled to stay in contact with the parents for months.

When the caseworker learned that they were not doing well and had no place to

stay, she recommended that they stay at a shelter, but they declined. A couple

weeks later, they visited the local Division office, and the caseworker told them

they still had time to regain custody of their children if they made an effort to

comply with the recommended programs.          Amy agreed, and she and Jim

submitted to drug screenings.        Amy tested positive for cocaine and

buprenorphine, and Jim for THC and buprenorphine.


                                                                         A-3585-18T4
                                       9
      Thereafter, the Division informed the parents that they needed to comply

with the recommendations, as it was considering transferring the case to the

adoption unit. By early 2018, the parents made no progress, so the judge

approved a permanency plan, and the Division filed a verified complaint fo r

guardianship and assigned an adoption caseworker, Sandra Weber.

      The family began therapeutic visitation, but visits were not consistent.

Additionally problematic was the parents' positive drug screenings during some

of the visits. Amy began an IOP at Daytop New Jersey but she her attendance

was sporadic, and she was ultimately discharged with a recommendation for a

higher level of care. In August, she was referred to OMH and began treatment

a month later. Jim was also referred for another IOP, but he failed to attend.

      Meanwhile, Dr. Brandwein remained involved with the family. On June

4, 2018, he completed another psychological evaluation of Amy, which revealed

largely the same issues.    He altered Amy's diagnosis to severe opioid use

disorder, severe amphetamine use disorder, adult antisocial behavior, and victim

of spouse or partner violence, while finding that the previous diagnoses of

histrionic personality patterns and borderline intellectual functioning were

accurate. Ultimately, he opined "that there has been no substantive change in

[Amy's] psychological functioning and parenting capacity relative to the


                                                                         A-3585-18T4
                                      10
previous examination, and . . . [Amy is not] currently [able] to provide

independent care to her children." Because of her limited compliance with

services and continued substance abuse, "the likelihood for [Amy] to be capable

of independent care of her children in the foreseeable future is quite dismal."

He recommended that the Division proceed with a permanency plan for the

children "other than reunification . . . with [Amy]."

      On July 20, 2018, Dr. Brandwein conducted a bonding evaluation of the

family.   For thirty minutes, he observed Amy and Jim together with both

children, noting that the children were happy to see their parents and referred to

them as "mommy" and "daddy." He then observed each parent alone with the

children for twenty minutes, noting that both parents were appropriate with the

children, but there were some concerns: John had a difficult time separating

from Amy, "a sign of insecure attachment in a child his age;" and Jim "seemed

overly focused [on] how [John] was different during the observations than he

[had] been during parent-child visits," demonstrating a lack of flexibility in

accommodate differences in a child's behavior.

      Based on his observations, he opined "that while the children do appear to

be bonded to their birth parents, . . . [their] bond with them is insecure." He

attributed this "to [Amy's and Jim's] long-term behavioral and emotional


                                                                          A-3585-18T4
                                       11
instability as well as their absence from the children's lives at different points

. . . due to their substance use, substance-related behavior, and repeated arrests

and incarcerations."    Insecure bonds "are unable to support either child

throughout the remainder of their childhood and into adolescence and

adulthood." Accordingly, he recommended that the children be allowed to

"develop[] a relationship with adult caregivers committed to [their]

permanency." The children would be most harmed by continuing to delay

permanency "to allow their birth parents to do something they seem poorly

motivated to achieve; that is, sobriety, stability, and the development of a

lifestyle conducive to raising minor children."

      In September 2018, Cindy and John were moved to a new resource home,

as the original resource family did not wish to adopt them. On November 10,

2018, Dr. Brandwein conducted a bonding evaluation of the children with the

new resource family, and he concluded that the children were "in the process of

developing positive, supportive relationships with [the resource parents]."

Further, he opined that the children's need for permanency was urgent, and

adoption was the best option to meet their needs.

      The guardianship trial was held before Judge James M. Blaney on

February 27, February 28, and April 8, 2019. At the start of trial, neither Amy


                                                                          A-3585-18T4
                                       12
nor Jim was present, but Amy finally arrived and stayed for a short period,

leaving the room during much of Dr. Brandwein's testimony.

      Dr. Brandwein testified as to each his evaluations. When asked whether

his opinions would change if he knew that Amy had been doing well with her

treatment since December 2018, he opined that "non-compliance and further

drug use [were] more likely than compliance of sobriety" because any recent

compliance would only be based on behavior from a two-month period. He also

explained that even if the current resource parents did not adopt the children, his

opinions would not change because the real concerns were about Amy's and

Jim's abilities to care for their children.

      During Dr. Brandwein's testimony, Amy requested an adjournment,

stating she was dissatisfied with her attorney. The judge denied her request:

             Ma'am, your attorney has been representing you and
             will continue to represent you. You have the ability to
             hire your own attorney if you wish, but quite frankly
             you haven't even been present in this hearing for more
             than ten minutes and we've been going for over a half-
             hour. So I find it hard to understand even why you
             would even think that Ms. Kelly is not doing what she's
             supposed to be doing. She is, in this [c]ourt's opinion.

Thereafter, Amy left the courthouse. The judge denied her attorney's request

for an adjournment, as there was no prior indication that Amy was dissatisfied



                                                                           A-3585-18T4
                                         13
with her attorney; however, he did request that one of the caseworkers return the

following day to allow Amy time to hire a new attorney if she wished.

      The trial continued, and the judge heard testimony from Williams and

Weber, the Division caseworkers. At the end of the second day, the judge

decided to leave the record open to allow Amy additional time to hire a private

attorney and decide if she wanted to testify. On March 6, 2019, the judge issued

an order requiring the Division to notify Amy and Jim "of their absolute right to

present testimony and or evidence on their own behalf to the [c]ourt."

      On April 8, 2019, Amy and Jim both appeared before Judge Blaney. Amy

testified that she was presently involved with Justice Involved Services and

attending an IOP at OMH. Three weeks earlier, she moved into a two-bedroom

home with a friend nearby, and a week earlier, she began working at a hotel in

Seaside. In addition, she continued to visit the children every other week.

      Jim testified that he was incarcerated in Ocean County but would soon be

released and had a job lined up. He had been attending visitations with Amy

and was most consistent when he was not incarcerated. He acknowledged there

had been "starts and stops with various services," explaining that homelessness,

job loss, and changing court orders caused his noncompliance.




                                                                         A-3585-18T4
                                      14
      After hearing from Amy and Jim, the judge issued an oral decision,

considering the four prongs of N.J.S.A. 30:4C-15.1(a). Under prong one, he

found that "the children were in significant danger from both parents," as the

parents were consistently noncompliant with the Division's recommendations

and court orders, and they continued using illicit substances and engaging in

"[c]riminal, improper, and assaultive behaviors." They also failed to meet the

children's medical needs and could not provide stable housing. Under prong

two, the judge found that "the children will suffer further delay if permanent

placement is not resolved," given the parents' demonstrated lack of interest, their

inability to address their substance abuse problems, their failure to meet the

children's medical needs, and their repeated incarceration. He also relied on Dr.

Brandwein's opinion that the prognosis for either parent becoming able to

independently care for their children was dismal. Under prong three, the judge

found that the Division provided reasonable services, kept both parents updated

throughout the case, explored kinship legal guardianship, and ruled out any of

the parents' relatives.   Finally, under prong four, the judge relied on Dr.

Brandwein's opinion that the resource parents "had forged a loving and caring

relationship with the two children . . . and would be able to provide a safe and

stable home for . . . them into the future."


                                                                           A-3585-18T4
                                        15
     Based on his findings, the judge terminated Amy's and Jim's parental

rights to Cindy and John and awarded the Division guardianship over both

children. This appeal ensued.

     On appeal, Amy raises the following points:

           [1.] THE TRIAL COURT ERRED IN FINDING THAT
           [THE DIVISION] MET ITS BURDEN OF PROOF BY
           CLEAR AND CONVINCING EVIDENCE ON ALL
           FOUR PRONGS OF THE BEST INTEREST TEST
           PURSUANT TO N.J.S.A. 30:4C-15.1(a) BECAUSE
           [THE      DIVISION'S]    EVIDENCE      WAS
           INSUFFICIENT ON PRONG THREE AS [IT]
           FAILED TO PROVIDE REASONABLE EFFORTS
           TO EFFECTUATE REUNIFICATION.

           [2.] THE TRIAL COURT ABUSED ITS DISCRETION
           WHEN IT DENIED AN ADJOURNMENT OF THE
           TRIAL       AFTER     [AMY]     EXPRESSED
           DISSATISFACTION WITH CURRENT ASSIGNED
           COUNSEL AND WANTED TO RETAIN ANOTHER
           ATTORNEY.

     Jim raises the following points:

           [1.] THE DIVISION FAILED TO PROVE BY CLEAR
           AND CONVINCING EVIDENCE THAT CINDY
           AND JOHN'S HEALTH AND DEVELOPMENT HAD
           BEEN OR WILL CONTINUE TO BE ENDANGERED
           BY THE CONTINUATION OF THE PARENTAL
           RELATIONSHIP WITH [JIM].

           [2.] THE DIVISION FAILED TO PROVE BY CLEAR
           AND CONVINCING EVIDENCE THAT [JIM] IS
           UNWILLING OR UNABLE TO ELIMINATE THE
           HARM FACING THE CHILDREN OR IS UNABLE

                                                                  A-3585-18T4
                                        16
             OR UNWILLING TO PROVIDE A SAFE AND
             STABLE HOME FOR HIS CHILDREN.

             [3.] THE DIVISION FAILED TO PROVE BY CLEAR
             AND CONVINCING EVIDENCE THAT IT MADE
             REASONABLE EFFORTS TO PROVIDE SERVICES
             TO      ASSIST     [JIM]   CORRECT     THE
             CIRCUMSTANCES WHICH LED TO THE
             CHILDREN['S] REMOVAL.

             [4.] THE COURT BELOW ERRED IN FINDING
             THAT TERMINATION WOULD DO MORE HAR[M]
             THAN GOOD AND THE DIVISION FAILED TO
             SHOW THAT A DELAY OF PERMANENT
             PLACEMENT WOULD CAUSE OR ADD TO THE
             HARM.

                                         II.

      N.J.S.A. 30:4C-15.1(a) authorizes the Division to petition for termination

of parental rights in the "best interests of the child," if it can show the following:

             (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

                                                                              A-3585-18T4
                                         17
            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.

      "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);

see Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family courts'

special . . . expertise in family matters, appellate courts should accord deference

to family court factfinding."). "We will not disturb the [judge's] decision to

terminate parental rights when there is substantial credible evidence in the

record to support the [judge's] findings." N.J. Div. of Youth & Family Servs. v.

E.P., 196 N.J. 88, 104 (2008).

                                        A.

      Jim argues that the trial judge erred when he found clear and convincing

evidence that prong one was satisfied, as there was no substantiation of neglect

and no evidence of harm to the children, the family lived with the children's

grandparents a majority of the time, Jim worked twelve-hour days to pay for the

housing, and both parents complied with court orders to have the children

immunized and to arrange for the children's dental work. Additionally, Jim

contends that the judge erred in relying on Dr. Brandwein's testimony that the

                                                                           A-3585-18T4
                                       18
parents did not appreciate the importance of dental hygiene because Dr.

Brandwein is not a dental expert, and he did not formally evaluate Jim.

      Prong one focuses "on the effect of harms arising from the parent-child

relationship over time on the child's health and development."               In re

Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The harm "must be one that

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

the child." Id. at 352. "Courts need not wait to act until a child is actually

irreparably impaired by parental inattention or neglect." In re Guardianship of

DMH, 161 N.J. 365, 383 (1999). The standard is "whether it is reasonably

foreseeable that the parents can cease to inflict harm upon the children entrusted

to their care." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167

(2010) (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607

(1986)).

      The record supports the judge's finding that Jim posed a significant threat

of harm to Cindy and John. Jim repeatedly failed to comply with court orders

and the Division's recommendations and instead continued to use illicit

substances and engage in criminal behavior, resulting in his incarceration

several times. Additionally, he could not maintain stable housing and was

homeless at times. Although Jim points to instances of positive behavior and


                                                                           A-3585-18T4
                                       19
relies on a lack of substantiation of neglect, his continued noncompliance with

orders and recommendations and his failure to provide a safe, stable home for

Cindy and John demonstrate that it was unlikely he would be able to cease any

future harm to the children. Additionally, Jim's contention that the judge erred

in relying on Dr. Brandwein's testimony about the general importance of dental

hygiene is without merit, as a person need not have specialized knowledge to

understand the issue generally. See N.J.R.E. 702.2

                                       B.

      Jim argues that the trial judge erred when he found clear and convincing

evidence that prong two was satisfied because he was willing and able to address

the Division's concerns, as revealed by his attendance at substance abuse

screenings, evaluations and treatment programs, a bonding evaluation, and

visitations. Poor attendance with respect to the substance abuse evaluations was

due to his work schedule. Further, Jim asserts he was able to provide safe

housing, and he continued working to ensure he was able to pay for housing.




2
  N.J.R.E. 702 provides, "If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training,
or education may testify thereto in the form of an opinion or otherwise."
                                                                          A-3585-18T4
                                       20
Lastly, Jim disputes the credibility of Dr. Brandwein's opinion that the children's

bond to Jim was insecure, as he claims it was based solely on his incarceration.

      Under prong two, the Division must show that the parent is unable or

unwilling to correct the circumstances that led to the Division's involvement.

K.H.O., 161 N.J. at 348-49. There must be continued harm to the child, resulting

from the parent's inability or unwillingness to remove or overcome the har m.

N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 483 (App.

Div. 2012). "Parental unfitness may . . . be demonstrated if the parent has failed

to provide a 'safe and stable home for the child' and a 'delay [of] permanent

placement' will further harm the child." K.H.O., 161 N.J. at 352 (quoting

N.J.S.A. 30:4C-15.1(a)(2)). "Keeping the child in limbo, hoping for some long

term unification plan, would be a misapplication of the law." N.J. Div. of Youth

& Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001).

      The record supports the judge's finding that the children would continue

to suffer harm from a delay in permanent placement.          There is substantial

evidence that Jim repeatedly failed to comply with the Division's

recommendations regarding his substance abuse problems, and he was

repeatedly incarcerated, both of which affected his ability to meet the children's

needs. Moreover, Dr. Brandwein testified that the prognosis for Jim's ability to


                                                                           A-3585-18T4
                                       21
acquire the skills necessary to independently care for the children was dismal.

Any reliance by Dr. Brandwein or the trial judge on Jim's incarceration was not

error, as judges may properly consider a parent's incarceration in combination

with other factors, such as parental performance before incarceration, whether a

need for permanency will be undermined by a continued parent-child

relationship, and the effect of a continued relationship on the child's

psychological and emotional well-being. In re Adoption of Children by L.A.S.,

134 N.J. 127, 143-44 (1993).

      In addition, we reject Jim's contention that Dr. Brandwein's opinion with

respect to Jim was unreliable. Although Dr. Brandwein did not complete a

psychological evaluation of Jim, he reviewed several documents in connection

with his evaluation of Amy, which provided information about Jim, and he

observed Jim's behavior during the bonding evaluation. While Dr. Brandwein's

opinion of Jim was based on less information than his opinion of Amy, he

explained why he opined that Jim had not overcome the issues that harmed

Cindy and John and why he would likely be unable to do so in the foreseeable

future. See Townsend v. Pierre, 221 N.J. 36, 54 (2015) ("[N.J.R.E. 703] requires

that an expert 'give the why and wherefore' that supports the opinion, 'rather than




                                                                           A-3585-18T4
                                       22
a mere conclusion.'" (quoting Borough of Saddle River v. 66 E. Allendale, LLC,

216 N.J. 115, 144 (2013))).

                                        C.

      Amy and Jim both argued that the trial judge erred when he found clear

and convincing evidence that prong three was satisfied. Amy contends that the

services the Division provided were not reasonable and did not assist in

reunifying her with Cindy and John. Specifically, she asserts that the Division

failed to recommend an inpatient Mommy and Me program and domestic

violence counseling, and it failed to provide sufficient housing assistance, as it

only offered a housing voucher contingent upon Jim attending a substance abuse

evaluation. Additionally, Amy argues that the Division should have provided

supervised visitation with the children at a local Division office when she and

Jim were on the waitlist for therapeutic visitation.

      Jim admits that the Division provided certain services and explains that

he participated and received positive feedback. However, he claims that the

Division did not provide housing assistance, and he contends that a parent's

poverty cannot be the sole reason that a child is removed from his or her parents.

He adds that the Division did not always properly notify him of recommended

services, and it did not schedule them around his work schedule.


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      Under prong three, the Division must make reasonable efforts to promote

family reunification and to provide "assistance to the parent to correct and

overcome those circumstances that necessitated the placement of the child into

foster care." K.H.O., 161 N.J. at 354. 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).]

The reasonableness of the Division's efforts "must be [determined] on an

individualized basis," DMH, 161 N.J. at 390, and are not evaluated based on

their success, id. at 393.

      The record supports the judge's finding that the Division provided

reasonable services to both parents. Amy and Jim's arguments are without merit.

The Division scheduled numerous substance abuse evaluations, which led to

referrals for IOPs. If the programs did not provide transportation, the Division

arranged for it. The Division also arranged for psychological evaluations, a


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                                         24
bonding evaluation, visitations, and FPS, and it recommended a Mommy and

Me program for Amy and domestic violence programs for both parents.

Additionally, throughout the entire case, the Division tried to communicate with

the parents as often as it could. When Amy and Jim were dissatisfied with their

programs, the caseworker expressed the importance of continuing the programs.

She also updated them on the progress of the case and, after the emergency

removal, also on the children's progress.

      Amy and Jim have not identified any additional services that would have

impacted their abilities to overcome their substance abuse problems and

parenting deficiencies. That they were unsuccessful in completing or complying

with the required programs does not bear upon the reasonableness of the

Division's efforts. See ibid. The record reveals that the Division provided both

parents with many opportunities to address the Division's concerns.

                                       D.

      Jim argues that the trial judge erred when he found clear and convincing

evidence that prong four was satisfied because he should not have relied on Dr.

Brandwein's testimony, as it was not based on a psychological evaluation. The

bonding evaluation revealing no evidence of Jim hurting the children, and Dr.

Brandwein admitted that there was a psychological bond between Jim and the


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                                      25
children, unlike their relationship with the resource parents. Further, there was

no evidence that the current resource parents wished to adopt the children.

      Prong four requires the judge to balance the child's relationship with their

biological and resource parents and then determine whether the children will

suffer greater harm from the termination of ties with the former than with the

latter. K.H.O., 161 N.J. at 355. To terminate parental rights, the judge need not

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

ties." Ibid. Instead, the judge must focus on "the child's age, [his or] her overall

health and development, and the realistic likelihood that the [biological] parent

will be capable of caring for the child in the near future." Id. at 357.

      "The overriding consideration . . . remains the child's need for permanency

and stability." L.J.D., 428 N.J. Super. at 491-92. "Ultimately, a child has a right

to live in a stable, nurturing environment and to have the psychological security

that his [or her] most deeply formed attachments will not be shattered." N.J.

Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 453 (2012). "A child

cannot be held prisoner of the rights of others, even those of his or her parents.

Children have their own rights, including the right to a permanent, safe and

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

76, 111 (App. Div. 2004).


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                                        26
      The record supports the judge's finding that termination of Jim's parental

rights would not do more harm than good. As we explained under prong two,

Dr. Brandwein's testimony about the children's insecure attachment to Jim was

appropriate.   In contrast with his opinion of Jim's parenting abilities, Dr.

Brandwein noted no concerns about the resource parents' abilities to provide a

safe and stable environment for Cindy and John. The judge relied on Dr.

Brandwein's opinion that the resource parents "had forged a loving and caring

relationship with the two children . . . and would be able to provide a safe and

stable home for . . . them into the future." Both children have a need for

permanency, and as Dr. Brandwein opined, after years of noncompliance with

services, there is no evidence to suggest that Jim will be able to maintain sobriety

long enough to avoid continuing to endanger both children. Allowing another

family to adopt Cindy and John serves their best interests, as it will give them

the permanency they need.

                                        III.

      Amy contends that the trial judge erred in denying her request for an

adjournment to retain a private attorney, thereby depriving her of a fair trial.

      We review the denial of an adjournment request to hire a private attorney

for an abuse of discretion and will reverse only if the denial caused the


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                                        27
requesting party to suffer a "manifest wrong or injury." State v. Hayes, 205 N.J.

522, 537 (2011) (quoting State v. McLaughlin, 310 N.J. Super. 242, 259 (App.

Div. 1998)). In termination of parental rights cases, parents have a right to be

represented by an attorney. N.J.S.A. 30:4C-15.4(a); N.J. Div. of Youth &

Family Servs. v. B.R., 192 N.J. 301, 305-06 (2007). In criminal cases, our

Supreme Court has identified several factors that judges should balance against

the right to an attorney when deciding whether to grant an adjournment to allow

a party to retain a new attorney:

            the length of the requested delay; whether other
            continuances have been requested and granted; the
            balanced convenience or inconvenience to the litigants,
            witnesses, counsel, and the court; whether the requested
            delay is for legitimate reasons, or whether it is dilatory,
            purposeful, or contrived; whether the defendant
            contributed to the circumstance which gives rise to the
            request for a continuance; whether the defendant has
            other competent counsel prepared to try the case,
            including the consideration of whether the other
            counsel was retained as lead or associate counsel;
            whether denying the continuance will result in
            identifiable prejudice to defendant's case, and if so,
            whether this prejudice is of a material or substantial
            nature; the complexity of the case; and other relevant
            factors which may appear in the context of any
            particular case.

            [Hayes, 205 N.J. at 538 (quoting State v. Furguson, 198
            N.J. Super. 395, 402 (App Div. 1985)).]



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      We conclude that the judge did not abuse his discretion in denying Amy's

request for an adjournment.        Amy did not express dissatisfaction with her

attorney until first day of trial, during Dr. Brandwein's testimony. Further, she

did not provide the judge with any reason for her dissatisfaction. After Amy left

the courtroom, her attorney stated that Amy's present dissatisfaction had not

hampered their ability to communicate previously. The judge provided Amy

with ample time to hire a private attorney by arranging for Weber to testify the

following day and leaving the record open for over a month. Alternatively, as

the judge found, nothing in the record suggests that Amy's attorney's

performance was deficient and that a different attorney would have

accomplished a different result.

      To the extent we have not addressed any of the parties' remaining

arguments, we find that they are without sufficient merit to warrant discussion

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

      Affirmed.




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