                                      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                                NOT FOR PUBLICATION WITHOUT THE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-5238-17T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

O.P.,

          Defendant-Appellant,

and

S.L.C.,

     Defendant.
____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF U.F.P.,

     a Minor.
____________________________

                   Submitted September 23, 2019 – Decided October 3, 2019

                   Before Judges Geiger and Natali.
              On appeal from the Superior Court of New Jersey,
              Chancery Division, Family Part, Essex County, Docket
              No. FG-07-0025-18.

              Joseph E. Krakora, Public Defender, attorney for
              appellant (Howard B. Tat, Designated Counsel, on the
              brief).

              Gurbir S. Grewal, Attorney General, attorney for
              respondent (Jane C. Shuster, Assistant Attorney
              General, of counsel; Fatime Meka, Deputy Attorney
              General, on the brief).

              Joseph E. Krakora, Public Defender, Law Guardian,
              attorney for minor (Linda Vele Alexander, Designated
              Counsel, on the brief).

PER CURIAM

        Defendant O.P. (Oscar) 1 appeals from a June 27, 2018 judgment

terminating his parental rights to his daughter, U.F.P. (Una), then age two. After

a one-day trial, Judge Nora J. Grimbergen terminated Oscar's parental rights for

the reasons expressed in her detailed written opinion. The judge concluded the

Division of Child Protection and Permanency (the Division) had satisfied all

four prongs of the best interest of the child test found in N.J.S.A. 30:4C-15.1(a).

We affirm.

        On appeal, Oscar raises the following points:



1
    We use initials and fictitious names for the sake of anonymity.
                                                                           A-5238-17T1
                                         2
            I. THE TRIAL COURT'S DECISION MUST BE
            REVERSED       AS    THE   RECORD  LACKS
            SUBSTANTIAL, CREDIBLE EVIDENCE TO
            SUPPORT THE TRIAL COURT'S FINDINGS
            UNDER PRONGS ONE THROUGH THREE OF
            N.J.S.A. 30:4C-15(a) AS IT ONLY MADE ONE
            FINDING AGAINST THE FATHER.

                  A. The trial court erred when it found that the
                  Father had harmed Una by failing to complete a
                  psychosexual evaluation.

                  B. The trial court erred when it found the Father
                  did not correct the harm facing Una as he was
                  never given a meaningful opportunity to do so.

                  C. The trial court erred when it found the
                  Division had provided reasonable services to the
                  Father as it failed to provide any alternative to a
                  psychosexual evaluation.

            II. THE TRIAL COURT ERRED IN FINDING THE
            DIVISION HAD PROVEN BY CLEAR AND
            CONVINCING      EVIDENCE    THAT     THE
            TERMINATION OF THE FATHER'S PARENTAL
            RIGHTS WOULD NOT DO MORE HARM THAN
            GOOD FOR THE DAUGHTER.

These alleged errors merit limited discussion. R. 2:11-3(e)(1)(E).

      We summarize the dispositive facts. On August 3, 2015, S.L.C. (Sally)

gave birth to Una. The Division had received three referrals about Sally while

she was pregnant with Una, referencing her drug use, incarcerations,

hospitalizations, and homelessness.


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                                       3
      The Division had previous involvement with Sally dating back to 2004,

with respect to her two older children. Her parental rights to those children were

terminated in October 2012. We affirmed the termination. N.J. Div. of Child

Prot. & Perm. v. S.C., No. A-1222-12 (App. Div. Nov. 14, 2013).

      Upon Una's birth, the Division received another referral. Both mother and

child had tested positive for opiates and methadone, and Una had begun

treatment for symptoms of withdrawal. At that time, the Division substantiated

Sally for neglect and posing a substantial risk of injury to Una.

      Una remained hospitalized for about six weeks. During that time, the

Division filed a complaint for custody, which the court granted, noting concerns

over Sally's drug use and Oscar's criminal history, which included a conviction

for sexual assault. On September 18, 2015, Una was discharged from the

hospital and placed in a non-relative resource home.

      The Division provided services to the family, including engaging in case

planning and developing family agreements. The Division provided Sally with

a substance abuse evaluation and treatment, a psychological evaluation,

parenting skills training, and visitation. In December 2015, Sally was enrolled

in a Mommy & Me program, where Una was placed in her custody on February

1, 2016, with the Division retaining care and supervision.


                                                                          A-5238-17T1
                                        4
      In June 2016, Sally was discharged from the Mommy & Me program,

without having successfully completed it. After her discharge, she relapsed into

drug use and was unable to maintain stable housing, despite assistance from the

Division. In October 2016, the Division effectuated an emergency removal of

Una and filed an amended complaint for custody, and the court approved the

removal. Una was placed in her previous resource home. After the second

removal, Sally did not remain in contact with the Division, and the Division was

unable to locate her. In July 2017, the Division learned that Sally was being

held in the Essex County Jail.     Five days earlier, the court had entered a

permanency order, approving the Division's plan for Una's adoption.          The

following month, the Division filed a complaint for guardianship

      The Division provided Sally with visitation during her remaining

incarceration. However, after her release in late-December 2017, she did not

remain in contact with the Division.        In March 2018, Sally contacted the

Division from the hospital, where she remained for a number of weeks receiving

treatment for a blood infection. She had no further contact with the Division

after she was discharged from the hospital, and did not attend a scheduled

psychological evaluation. Sally did not appear for trial and she has not appealed

from the termination of her parental rights.


                                                                         A-5238-17T1
                                        5
      With respect to Oscar, the Division's concerns were his history of

substance abuse and his extensive criminal history, which included a conviction

for sexual assault. He is a registered sex offender, and pursuant to N.J.S.A. 9:2-

4.1(a), he "shall not be awarded the custody of or visitation rights to any minor

child . . . except upon a showing by clear and convincing evidence that it is in

the best interest of the child for custody or visitation rights to be awa rded."

      The Division referred Oscar for a psychosexual evaluation on multiple

occasions, explaining the evaluation was necessary to determine whether he

should be granted visitation or be considered for placement of Una.                The

Division offered transportation assistance to the evaluation, which was

rescheduled at least six times. Oscar never attended any of the scheduled

appointments, and he denied there was any need for the evaluation. As a result

of his refusal, the court did not grant Oscar visitation with Una. He has not

visited with Una since she was discharged from the hospital as an infant.

      Oscar was largely uncooperative with the Division, except for complying

with a substance abuse evaluation and outpatient drug treatment. He maintained

only sporadic contact with the assigned caseworker. For example, he went

missing after being discharged from a hospital and a rehabilitation facility.

When the Division reestablished contact with him in March 2017 he was living


                                                                            A-5238-17T1
                                         6
with his brother in an abandoned building. Even then, he did not participate in

services and the caseworker had difficulty reaching him. Oscar attended a court

hearing in July 2017 but removed himself from the courtroom during the hearing

and did not contact the Division during the following three months.

      The Division filed a complaint for guardianship of Una on August 22,

2017. When Oscar was served with the complaint in October 2017 he insisted

he could care for Una, or she could live with a relative. Thereafter, the Division

did not hear from Oscar until March 1, 2018, when he said he had been receiving

the caseworker's mail and communicating with his counsel. Oscar terminated

the phone call when the caseworker asked for his current address. He did not

attend any of the guardianship hearings or trial.

      The Division considered placement of Una with individuals offered by

Oscar and Sally, including: K.C., a family friend; Ms. M., a paternal aunt; a

maternal aunt; and L.W., a paternal relative.       The Division ruled out K.C.

because she did not provide requested information to the Division. The Division

ruled out Ms. M. because she did not respond to the Division's inquiries. The

maternal aunt withdrew herself from consideration because she was not

available to care for Una. The Division ruled out L.W. because, after saying he




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                                        7
needed to discuss the matter with his wife, he never followed up with the

Division.

      At the time of trial, the Division's plan was for Una to remain in her

resource home and be adopted by her resource parent, notwithstanding the

resource parent's recent wavering on the subject of adoption. In March 2019 the

Division advised this court that Una was placed in a different adoptive home.

      The Division and the Law Guardian argue the Division has met its

evidentiary burden that termination of Oscar's parental rights was in Una's best

interests and urges this court to affirm the trial court's decision, offering Una the

chance for permanency that she deserves by freeing her for adoption.

      Under N.J.S.A. 30:4C-15.1(a), the Division

             shall initiate a petition to terminate parental rights on
             the grounds of the "best interests of the child" . . . if the
             following standards are met:

             (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;

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                                          8
            (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.

      "The four criteria enumerated in the best interests standard are not discrete

and separate; they relate to and overlap with one another to provide a

comprehensive standard that identifies a child's best interests."            In re

Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

      When parents contest the termination of their rights, the court's function

is to decide whether they can raise the child without causing further harm. In re

Guardianship of J.C., 129 N.J. 1, 10 (1992). "The burden falls on the State to

demonstrate by clear and convincing evidence that the natural parent has not

cured the initial cause of harm and will continue to cause serious and lasting

harm to the child." Ibid.

      The judge found the Division proved all four prongs of N.J.S.A. 30:4C-

15.1(a) by clear and convincing evidence. We limit our discussion to the court's

findings as to Oscar.




                                                                           A-5238-17T1
                                        9
      As to prong one, the judge found Oscar was referred for a psychosexual

evaluation that he failed to undergo despite the evaluations being rescheduled

numerous times during the pendency of the case. The judge noted:

            Had he attended any of these evaluations, the Division
            might have determined him to be able to safely parent
            [Una]. [Oscar] never visited with [Una] after she was
            discharged from the hospital and did not comply with
            the one service that might have permitted him to visit.

                  His lack of compliance with the psychosexual
            evaluation prevents him from safely parenting [Una],
            thus placing her safety, health and development at
            substantial risk of harm. His failure to provide the
            necessary nurturing in and of itself is a harm to [Una].
            Based on the evidence, [Oscar's] lack of compliance
            suggests he is not viable as a parenting option. He has
            demonstrated a lack of commitment to [Una].

      The court determined that Una's safety, health, or development had been

or would continue to be endangered by the parental relationship with Oscar, who

by failing to complete the necessary evaluation had effectively withdrawn his

solicitude, nurture, and love for an extended period of time.

      Similarly, the court found that prong two had been established because

Oscar "consistently refused to participate in the one service which might have

permitted him to visit [Una] and perhaps be determined as a safe parenting

option for her." Moreover, his lack of contact with the Division for almost eight

months displayed an unwillingness to eliminate the harm that endangers Una.

                                                                         A-5238-17T1
                                      10
      With respect to prong three, the court found the Division "provided

services including substance abuse evaluations and treatment, family team

meetings, transportation, psychological and psychosexual evaluation . . . to

assist [Oscar] in becoming a parenting option for [Una]." The judge found the

caseworker "was dedicated in her attempts to engage" Oscar in the litigation and

services but he "chose not to avail himself of those services or participate in any

court hearings in the guardianship litigation regarding his daughter." The judge

also found the Division had explored alternatives to the termination of parental

rights, but to no avail. The judge concluded "[t]he efforts directed at this family

were tailored to the needs of the parents," but "[b]oth parents have failed to

comply with those services."

      Finally, as to prong four, the judge found the evidence showed "neither

parent is committed to [Una]," as neither parent had completed services. Due to

Oscar's sexual assault conviction, he had the burden "to show that it is in the

child's best interest to allow visitation. He failed to attend any of at least six

psychosexual evaluations scheduled by the Division to give him the opportunity

to show he can safely parent." In addition, Oscar had not been in contact with

the Division for months, and Una was well-cared for by her resource parent,




                                                                           A-5238-17T1
                                       11
who was committed to adoption, "thus providing her with the permanency she

deserves."

      Our review of a trial court's decision in a guardianship action is limited

and deferential. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278

(2007). We do not disturb the judge's findings so long as they are supported by

substantial credible evidence in the record. N.J. Div. of Youth & Family Servs.

v. R.G., 217 N.J. 527, 552 (2014). We defer to the judge's evaluation of the

credibility of witnesses, including experts, and to the acknowledged expertise of

Family Part judges in these matters. Id. at 552-53.

      Applying that standard, we conclude the record contains substantial

credible evidence supporting the trial judge's findings and conclusions. We

discern no basis to disturb them.     We affirm substantially for the reasons

expressed by Judge Grimbergen in her comprehensive written opinion. We add

the following comments.

      Under N.J.S.A. 9:2-4.1, the burden of proof is on the parent seeking

visitation or custody to show by clear and convincing evidence that it is in the

child's best interest for custody or visitation rights to be awarded. Oscar, who

did not cooperate with the Division, refused to undergo a psychosexual

evaluation, did not present any expert testimony, and failed to attend the trial,


                                                                         A-5238-17T1
                                      12
has not met that burden.     He presented no evidence, much less clear and

convincing evidence, that it was in Una's best interest to award him custody or

visitation. Moreover, in continually refusing to participate in a psychosexual

evaluation, by his own conduct he deprived the court of necessary information,

caused the absence of visitation with Una and contributed to his failure to

develop a relationship with her. Our Supreme Court has stressed that "the

attention and concern of a caring family" is "the most precious of all resources."

N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 613 (1986). "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." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (citing K.H.O.,

161 N.J. at 352-54).

      Based upon this failure, as well as Oscar's more general failure to maintain

contact with the Division and present a viable plan for his daughter, the judge

correctly determined that all four prongs of N.J.S.A. 30:4C-15.1(a) had been

established by clear and convincing evidence. By refusing to engage in a

psychosexual evaluation, defendant has absented himself from his daughter 's

life, evidencing his unfitness as a parent, and making the termination of his

parental rights in Una's best interests, so she can achieve permanency with


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                                       13
another family. D.M.H., 161 N.J. at 378-94. See also A.W., 103 N.J. at 610

(noting that Division's efforts may be affected by parents who refuse to engage

in services).

      Ordinarily, the Division should offer testimony of an expert who performs

a bonding evaluation. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.

420, 453 (2012); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281

(2007). However, where the termination is not predicated upon bonding, but

rather reflects the child's need for permanency and the biological parent's

inability to care for the child in the foreseeable future, a lack of a bonding

evaluation is not fatal to the Division's case. N.J. Div. of Youth & Family Servs.

v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996). Here, the termination was

predicated upon parental unfitness, not the child's relative bonding with the

biological parents versus the resource parent. Una, who is now four years old,

has not seen Oscar since she was a newborn infant. By any measure, there is no

bond between them.

      For the same reason, Una's post-judgment change of placement does not

change the result. While Una has been moved to another resource home, which

the Division characterizes as an "adoptive home," nothing has changed with

respect to Oscar's ability or willingness to provide his daughter with a safe and


                                                                          A-5238-17T1
                                       14
stable home. Thus, notwithstanding the change in placement, termination of

parental rights still offers Una her best chance for permanency, and would not

do more harm than good.

      Affirmed.




                                                                      A-5238-17T1
                                     15
