                             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                        NOT FOR PUBLICATION WITHOUT THE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-0284-16T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

N.M.S.,

     Defendant-Appellant.
_________________________________

IN THE MATTER OF THE
GUARDIANSHIP OF C.P.V. JR.,

     A Minor.
_________________________________

              Submitted October 17, 2017 – Decided December 5, 2017

              Before Judges Yannotti, Leone, and Mawla.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Ocean County,
              Docket No. FG-15-0046-14.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Catherine Reid, Designated
              Counsel, on the brief).

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Melissa H. Raksa,
              Assistant Attorney General, of counsel;
           Christina Duclos, Deputy Attorney General, on
           the brief).

           Joseph E. Krakora, Public Defender, Law
           Guardian (Margo E.K. Hirsch, Designated
           Counsel, on the brief).

PER CURIAM

      Defendant N.M.S. (Mother) appeals from an August 9, 2016

judgment entered by the Family Part, terminating her parental

rights to C.P.V., Jr. (the child).        She challenges only whether

termination will not do more harm than good.       We affirm.

                                   I.

      We summarize the facts set forth in the August 9, 2016 opinion

of Judge Joseph L. Foster.     In July 2007, the child was born to

Mother and C.P.V., Sr. (Father).1         Mother is an alcoholic with

mental health issues.   During her pregnancy with the child, Mother

abused alcohol.    As a result, the child was born prematurely with

fetal alcohol syndrome and other special needs.         The child was

removed at birth and placed in custody of the Division of Youth

and Family Services, since renamed the Division of Child Protection

and   Permanency   (collectively   "the   Division").   After    Mother




1
  Father was incarcerated when the child was born, and frequently
thereafter. He surrendered his parental rights to the child, and
has not appealed. Accordingly, we will discuss only Mother and
the child.

                                   2                            A-0284-16T3
received services and improved, the child was returned to her

custody in May 2009.

     Mother soon relapsed into alcohol abuse and stopped attending

mental health services.      In September 2011, the four-year-old

child was found wandering the street while Mother was passed out

drunk, and the Division removed the child for the second time.

After Mother received services and improved, the child was returned

to her custody in January 2013.

     Mother   again    relapsed   into     alcohol   abuse   and   stopped

attending mental health services.        In November 2013, the child had

bruises and marks on his head after the six-year-old used scissors

to cut his own hair, Mother was drinking in the home which was in

deplorable condition, and the child was removed for the third time

due to Mother's drinking and neglect.

     In November 2014, Mother was drinking during visitation,

tested positive for alcohol, and was arrested for DWI.                  She

continued to abuse alcohol throughout 2015, and repeatedly failed

to attend and comply with mental health services.             She showed

improvement in 2016.

     At the 2016 guardianship trial, the Division's expert, Dr.

David Brandwein, testified that Mother's alcohol abuse and mental

health traits were "a veritable recipe for child neglect," that

she had "a recurring pattern" of treatment and relapse, and that

                                   3                               A-0284-16T3
she would relapse again and could not change.        Dr. Brandwein

testified that reunion with Mother followed by a fourth removal

would cause the child "a psychological blow" that would "exceed

his capacity for resiliency" and lead to a reaction from which the

child "would most likely never recover."     The trial court agreed

that, given Mother's history, "[i]t would be inappropriate to risk

the well-being of [the child] by accepting the pledge of [Mother]

that this time [it would be] 'different.'"

     Dr. Brandwein did three bonding evaluations with Mother and

the child in 2014, 2015, and 2016.   He found the initially strong,

affectionate bond between them weakened significantly, with Mother

becoming less engaged, the child more remote, and the bond less

secure.   The nine-year-old said he liked visits with Mother, but

did not want to live with her.       Dr. Brandwein testified that

termination of their relationship would not result in enduring

harm and could be addressed by counseling.

     Dr. Brandwein opined that "the option that was going to be

less harmful to [the child] would be to terminate [Mother's]

parental rights and free him for select home adoption."   The trial

court agreed the harm of termination "pales in comparison to the

'intense psychological reaction that [the child] would experience

if he were to remain in a state of limbo.'"



                                4                           A-0284-16T3
     Throughout most of his three removals, the child resided with

the same foster parent.        In November 2015, he was removed from

that foster parent after he stood on a younger child and threatened

to stab the child.     He was placed in a therapeutic treatment home

to address his special needs.

     The   Division's     adoption       specialist,     Christen   Clayton,

described the child as "a lovely little boy" with many qualities

which would help him get adopted.           She testified the Division's

plan was select home adoption followed by location of a permanent

adoption family.       She testified termination would increase the

child's adoptability because once a child is legally free for

adoption, the child can be registered on state and national

exchanges, can attend match events, and can be adopted in other

states   and   in   several   additional    homes   in   New   Jersey.    She

testified that recently children with similar or worse concerns

had been adopted.     Both she and caseworker Mary Campbell testified

they were confident the Division would be able to find a permanent

adoptive home for the child.

     During trial, the child was moved from one therapeutic home

to another after the eight-year-old scratched and threatened to

kill a younger child.         Campbell testified she still believed

Mother's rights should be terminated so the child could be adopted.



                                     5                               A-0284-16T3
     The    trial   court   found   Mother's    "persistent    history    of

substance abuse, relapse, and failure to adequately address her

mental instability . . . had caused [the child] to suffer profound

harm."   As a result, the child had spent "approximately two-thirds

of his life in the custody of the Division."          Mother was "unable

to and unwilling to eliminate the harm" and "to provide a safe and

stable home for" the child and "the delay in permanent placement

will add to the harm."       The Division made more than reasonable

efforts,    providing   Mother   long-   and   short-term   inpatient    and

intensive     outpatient    substance     abuse    programs,    Alcoholic

Anonymous, mental health programs, and other services.

     In considering the fourth prong, the trial court recognized

"[t]he difficulty here is that [the child] has not been placed in

a home which is committed to adopting him."           The court credited

Dr. Brandwein, Clayton, and Campbell, and found that "termination

of parental rights will give [the child] his last best chance for

having permanency in his life and will do more good than harm."

The court ordered the termination of parental rights.

     The trial court found termination of Mother's parental rights

was in the best interests of the child and was supported by each

prong of the four-prong test outlined in N.J.S.A. 30:4C-15.1(a).

Mother appeals the decision of the trial court, arguing that clear

and convincing evidence does not support a finding that termination

                                     6                             A-0284-16T3
will do more harm than good under the fourth prong of N.J.S.A.

30:4C-15.1(a).

                               II.

     "A parent's right to enjoy a relationship with his or her

child is constitutionally protected."     In re Guardianship of

K.H.O., 161 N.J. 337, 346 (1999).    However, this protection "is

tempered by the State's parens patriae responsibility to protect

the welfare of children."   Id. at 347; see N.J.S.A. 30:4C-1(a).

     Under Title Thirty, the Division must prove by clear and

convincing evidence that termination of parental rights is in the

best interests of the child.   N.J. Div. of Youth & Family Servs.

v. F.M., 211 N.J. 420, 447 (2012); see N.J.S.A. 30:4C-15(c).    The

Division must show that:

          (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 in
          unable or unwilling to provide a safe and
          stable home for the child and the delay of
          permanent 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


                                7                          A-0284-16T3
            considered alternatives    to   termination   of
            parental rights; and

            (4) Termination of parental rights will not
            do more harm than good.

     "Appellate review of a trial court's decision to terminate

parental rights is limited[.]"     In re Guardianship of J.N.H., 172

N.J. 440, 472 (2002).        We must determine whether the court's

decision "is supported by 'substantial and credible evidence on

the record.'"   F.M., supra, 211 N.J. at 448.     "We ordinarily defer

to the factual findings of the trial court because it has the

opportunity to make first-hand credibility judgments about the

witnesses who appear on the stand; it has a 'feel of the case'

that can never be realized by a review of the cold record."             N.J.

Div. of Youth Servs. v. E.P., 196 N.J. 88, 104 (2008). "Particular

deference is afforded to family court fact-finding because of the

family   courts'   special   jurisdiction   and   expertise    in    family

matters."    N.J. Div. of Child Prot. & Permanency v. N.C.M., 438

N.J. Super. 356, 367 (App. Div. 2014) (citing Cesare v. Cesare,

154 N.J. 394, 413 (1998)).    Thus, "[w]e will not overturn a family

court's factfindings unless they are so 'wide of the mark' that

our intervention is necessary to correct an injustice."               F.M.,

supra, 211 N.J. at 448 (citations omitted).         We must hew to our

deferential standard of review.



                                   8                                A-0284-16T3
     On appeal, Mother challenges only the trial court's finding

on the fourth prong.    Applying our standard of review, we affirm

substantially for the reasons given in the opinion of Judge Foster

on August 9, 2016.    We add the following.

                                III.

     The fourth prong "serves as a fail-safe against termination

even where the remaining standards have been met."     N.J. Div. of

Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007).      "[T]he

fourth prong of the test for terminating parental rights requires

that [the Division] prove by clear and convincing evidence that

'[t]ermination of parental rights will not do more harm than

good.'"    N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145,

180-81 (2010) (quoting N.J.S.A. 30:4C-15.1(a)(4)).

     Normally, "[t]he question to be addressed under that prong

is whether, after considering and balancing the two relationships,

the child will suffer a greater harm from the termination of ties

with [his] natural parents than from permanent disruption of [his]

relationship with [his] foster parents."      Id. at 181 (citation

omitted).    "The 'good' done to a child in such cases in which

reunification is improbable is permanent placement with a loving

family."    E.P., supra, 196 N.J. at 108.

     However, where the child has no foster parent waiting to take

custody of the child, the question is "whether a child's interest

                                  9                          A-0284-16T3
will   best    be   served    by     completely      terminating    the   child's

relationship with that parent."              Id. at 108.     In that situation,

one potential good is that termination will increase the child's

availability or opportunity for permanent placement.

       In the seminal case of N.J. Div. of Youth & Family Servs. v.

A.W., 103 N.J. 591 (1986), our Supreme Court articulated the four-

prong test later codified in N.J.S.A. 30:4C-15.1(a).                  Regarding

the fourth prong, the Court noted, "[s]ome have suggested that

'[a] decision to terminate parental rights should not simply

extinguish     an   unsuccessful      parent-child         relationship   without

making provision for . . . a more promising relationship . . .

[in] the child's future[.]'"          Id. at 610 (quoting Orman W. Ketcham

& Richard F. Babcock, Jr., Statutory Standards for the Involuntary

Termination of Parental Rights, 29 Rutgers L. Rev. 530, 542-43

(1976)) (alterations in original).             "Indeed, the detriment may be

greater than keeping the parent-child relationship intact since

the child's psychological and emotional bond to the parent may

have been broken with nothing substituted in its place."                  Id. at

611 (quoting In re Angelia P., 623 P.2d 198, 210 (1981) (Bird,

C.J., concurring and dissenting)).

       The Supreme Court in A.W. did not forbid termination when the

Division has not yet formulated a permanency plan distinguishing

a   person    willing   and   able    to     adopt   the   child.    Rather,     it

                                        10                                A-0284-16T3
instructed that, because a "child deeply needs association with a

nurturing adult," and "permanence in itself is an important part

of that nurture, a court must carefully weigh that aspect of the

child's life" and "consider the permanency plan."         Id. at 610.

     Moreover,   the   Supreme    Court   recognized    "there    will    be

circumstances when the termination of parental rights must precede

the permanency plan.      A multiply-handicapped child or a young

adolescent might not be adoptable at the time of the termination

proceedings."    Id. at 611.     Here, the child has special needs and

behavioral issues that complicate his adoption.         Nonetheless, the

child was able to live successfully for the better part of six

years with a foster mother intending to adopt until difficulties

arose.   The Court in A.W. also recognized that difficulties with

foster parents and unsuccessful placements "are the inevitable

consequence of temporary living arrangements."          Id. at 614.

     The Supreme Court returned to this issue in E.P.            The Court

reiterated   A.W.'s    concern   that    "terminating   parental    rights

without any compensable benefit, such as adoption, may do great

harm to a child."      E.P., supra, 196 N.J. at 108 (citing A.W.,

supra, 103 N.J. at 610-11).        The Court noted literature stating

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

find permanent homes."    Id. at 109 (quoting In re Guardianship of

J.C., 120 N.J. 1, 21 (1992) (quoting Robert Borgman, Antecedents

                                    11                             A-0284-16T3
and Consequences of Parental Rights Termination for Abused and

Neglected Children, 60 Child Welfare 391, 392, 402 (1981))).

     "In the unique circumstances" of E.P., the Supreme Court

ruled the "parent-child relationship that continued to provide

emotional sustenance to [E.P.'s] child should not have been severed

based on the unlikely promise of a permanent adoptive home."      Id.

at 114.   Those unique circumstances are not present here.     Judge

Foster's opinion sets forth numerous key factual differences that

distinguish E.P. from this case, including the much stronger

relationship between E.P. and her daughter Andrea, and Andrea's

desperate, near-suicidal opposition to adoption.

     We note additional differences which further distinguish E.P.

First, E.P. and Andrea had never been reunited, and Andrea and the

law guardian fervently sought reunification.    Id. at 93-96, 106.

Here, there have been two failed reunifications, the child in the

final evaluation did not want reunification, and the Law Guardian

supports termination of Mother's parental rights.       "[T]he Law

Guardian's position [is] of particular significance because . . .

she has to advocate for the best interests of the child too young

to speak for himself, and represents neither adversary in the

case." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super.

418, 433 (App. Div. 2009).



                               12                            A-0284-16T3
      Second, in E.P., the family court found "that completely

severing the mother-daughter ties would be 'extremely painful' and

even 'devastating' to Andrea."            E.P., supra, 196 N.J. at 110.

Here, the trial court credited Dr. Brandwein's testimony that

termination "'would not have an enduring impact on'" the child,

and that it was reunification followed by "the 'inevitable' fourth

removal   [which]   'would   be    psychological     devastating'   to"   the

child.

      Third, in E.P., the Division's adoption specialist testified

"older foster children are more difficult to place," the family

court found it was "highly questionable" that Andrea would ever

find a permanent home with a foster family, and the Supreme Court

stressed Andrea was almost thirteen years old.               Id. at 98, 109-

10.   Here, there was no such testimony or finding, and the child

was only nine-years-old at the time of the trial.

      Next, Mother points out that Dr. Brandwein and adoption

specialist    Clayton   testified    before    the   child    scratched   and

threatened to kill a younger child.             Mother argues that Dr.

Brandwein and Clayton may have altered their optimistic testimony

in light of the child's new violent incident.

      However, the child had stood on and threatened to stab a

younger child before Dr. Brandwein and Clayton testified, and they

nonetheless    testified     the   best    course    was   termination    for

                                     13                              A-0284-16T3
adoption, preferably by a foster parent with no younger children.

The child's second outburst was inconsistent with Clayton's view

"that he was no longer displaying aggressive conduct," but it did

not necessarily change the remainder of their testimony.              Mother

did not seek to recall Clayton (or Dr. Brandwein) to see if it

would change the testimony that the nine-year-old could be adopted.

Instead, Mother merely speculates Clayton's testimony (and Dr.

Brandwein's) "might well have been tempered."           Such speculation

is not evidence.

     Indeed,    when   caseworker   Campbell   was   recalled   after   the

scratching incident, she reiterated her belief it was in the best

interests of the child to terminate parental rights and seek

adoption.    The trial court properly could rely on her testimony.

     In any event, the trial court, which was well aware of the

scratching    incident,   nevertheless   choose   to   credit   the   prior

testimony from Clayton and Dr. Brandwein.            "[R]eviewing courts

should defer to the trial court's credibility determinations."

N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552

(2014).     That testimony, together with the testimony of Campbell

and others, provided clear and convincing evidence supporting

termination.     "Applying our limited standard of review to the

careful judgment that the trial court fairly exercised in weighing

the fact-sensitive considerations here under the fourth prong,"

                                    14                            A-0284-16T3
we see no reason to upset the court's determination.          N.J. Div.

of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 93 (App.

Div. 2013) (citing J.N.H., supra, 172 N.J. at 472).

     Mother also argues the trial court incorrectly weighed the

harm of termination against the harm of reunification.             Mother

notes that a decision to decline to terminate parental rights does

not mean Mother will be reunified with the child.         Mother points

out that the court must balance the harm of termination against

the increased prospect of adoption.

     However, we see no indication the court did not perform that

balancing.     Mother points to its quotation of Dr. Brandwein's

testimony    about   the   devastating    harm   from   another    failed

reunification and removal, but that harm was a valid consideration

for both the expert and the court.       In the end, the court properly

found that there was clear and convincing evidence that termination

would not do more harm than the good of freeing the child for

adoption.

     Lastly, Mother argues this case should be remanded, like

E.P., supra.    However, the Court remanded in E.P. solely "[b]ased

on a failure of proof on prong four."         Supra, 196 N.J. at 111.




                                  15                              A-0284-16T3
Here, unlike E.P., we have found no such failure.2    Moreover, as

set forth above, this case is unlike E.P.   In particular, E.P. had

an "unlikely possibility of permanency in the future."        Ibid.

Here, the trial court found the child has an opportunity for

adoption, particularly once termination makes the child free for

adoption.   An unjustified remand would only delay and impede the

child's opportunity.

     To support remand, Mother cites N.J. Div. of Youth & Family

Servs. v. T.S., 417 N.J. Super. 228 (App. Div. 2010).     However,

there we vacated and remanded because of "unusual" and "significant

post-trial circumstances," namely post-trial progress by M.S.'s

mother; M.S.'s new, strong desire to see her mother; an attempted

sexual assault against M.S. "in [her] foster placement, which may

present safety issues and has not been scrutinized by the court,"

and a change in position by M.S.'s law guardian based largely on

those new developments.   Id. at 232, 243, 246-49.   No such post-

trial developments have occurred here.

     We noted in T.S., "[a]dditionally, the child had not secured

a permanent placement," but we stated that was less significant

than M.S.'s change in position.     Id. at 247.   We did not imply


2
  Nor did the trial court "rel[y] on inappropriate factors in
reaching its determination," the basis for remand in A.W., supra,
103 N.J. at 617 (reversing the denial of termination and remanding
for "reconsider[ation] by a new fact-finder").

                               16                           A-0284-16T3
delay in a permanent placement alone would justify remand.       See

id. at 249 ("We do not intend to suggest that any and all post-

trial changes warrant another look at the evidence presented at

trial to support a final judgment terminating parental rights.").

Here, even assuming such delay has occurred, it is not a basis to

vacate a valid judgment.      Cf. J.N.H., supra, 172 N.J. at 479

(remanding because the family court had insufficient evidence to

decide a Rule 4:50 motion).

     Mother argues postponing termination would allow her to have

contact with the child while he awaits adoption.3     However, Dr.

Brandwein testified "the course of action that would be the most

harm for [the child] is keeping him in limbo" without freeing him

for adoption.    After nine years, three failed reunifications, and

a fourth removal three years ago, the child has been in limbo long

enough.   See N.J. Div. of Youth & Family Servs. v. L.J.D., 428

N.J. Super. 451, 484 (App. Div. 2012) ("'Keeping the child in

limbo, hoping for some long term unification plan, would be a

misapplication of the law.'" (citation omitted)).

     Affirmed.




3
  We note the trial court denied Mother's request for visitation
pending appeal.

                                 17                         A-0284-16T3
