                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4914-18T2
                                                                   A-4968-18T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

R.B. and I.D.,

     Defendants-Appellants.
___________________________

IN THE MATTER OF THE
GUARDIANSHIP OF R.B.,

     a Minor.
____________________________

                   Submitted June 15, 2020 – Decided July 1, 2020

                   Before Judges Fisher and Fasciale.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Hudson County,
                   Docket No. FG-09-0208-19.
            Joseph E. Krakora, Public Defender, attorney for
            appellant R.B. (Robyn A. Veasey, Deputy Public
            Defender, of counsel; Christine Olexa Saginor,
            Designated Counsel, on the briefs).

            Joseph E. Krakora, Public Defender, attorney for
            appellant I.D. (Robyn A. Veasey, Deputy Public
            Defender, of counsel; Louis W. Skinner, Designated
            Counsel, on the brief).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Melissa H. Raksa, Assistant Attorney
            General, of counsel; Sara M. Gregory, Deputy Attorney
            General, on the brief).

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

PER CURIAM

      R.B. (the mother) and I.D. (the father) (collectively defendants) appeal

from a June 26, 2019 order terminating their parental rights to R.B. (the child)—

who was thirteen and one-half years old at the time of trial—and awarding

guardianship to the Division of Child Protection and Permanency (the Division).

Judge Radames Velazquez, Jr., presided over trial, entered judgment, and

rendered a comprehensive written opinion.

      Around the age of sixteen, the mother had a son (the son) with her own

father (J.B.). Years later, the mother had a daughter (the child) with the father.

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                                        2
The Division created a safety plan that prohibited the mother from allowing

contact between J.B. and her children. The Division removed the child five

years before trial, when it learned that the mother exposed the child to J.B. It

was also learned that the father sexually abused the child, and the son engaged

in a sexual incident with her. After weighing the evidence, which included

unstable housing, substance abuse, and mental health issues, the judge

concluded that the Division met its burden of proof as to the mother, and also as

to the father, who did not learn he was the child's father until three years after

her birth.

                                        I.

      On appeal, the mother argues:

             POINT I

             THE [JUDGE] ERRED IN CONCLUDING THAT
             [THE MOTHER] HARMED [THE CHILD] OR
             EXPOSED HER TO A SUBSTANTIAL RISK OF
             HARM.

             POINT II

             THE [JUDGE] ERRED IN CONCLUDING THAT
             [THE MOTHER] WAS UNWILLING OR UNABLE
             TO ELIMINATE ANY PERCEIVED HARM TO
             [THE] CHILD.




                                                                          A-4914-18T2
                                        3
      POINT III

      THE [JUDGE] ERRED IN CONCLUDING THAT
      [THE DIVISION] MET ITS LEGAL OBLIGATION
      TO MAKE REASONABLE EFFORTS TO PROVIDE
      [THE MOTHER] WITH SERVICES AND TO STRIVE
      TO    OVERCOME     BARRIERS    TO    HER
      PARTICIPATION IN THOSE SERVICES. THE
      [JUDGE]   ALSO   FAILED   TO   PROPERLY
      CONSIDER ALTERNATIVES TO TERMINATION
      OF PARENTAL RIGHTS.

            A. [The Division] Failed To Provide [The
            Mother] With Housing Assistance and
            Failed To Intervene When [The Mother]
            Was Sexually Abused By Her Own Father.

            B. The [Judge] Could Not Properly
            Consider Alternatives To Termination Of
            Parental Rights Because A Bonding
            Evaluation Of The Foster Parent With The
            Child Was Never Conducted.

      POINT IV

      THE [JUDGE] ERRED IN CONCLUDING THAT
      TERMINATION OF [THE MOTHER]'S PARENTAL
      RIGHTS IS IN THE CHILD’S BEST INTERESTS
      BECAUSE    TERMINATION    OF  PARENTAL
      RIGHTS IN THIS CASE WOULD DO MORE HARM
      THAN GOOD BECAUSE OF THE STRONG
      EMOTIONAL ATTACHMENT THE CHILD HAS
      WITH [THE] MOTHER AND BECAUSE A
      BONDING EVALUATION WITH THE CHILD AND
      HER    FOSTER    PARENT    WAS   NEVER
      CONDUCTED.

On appeal, the father argues:

                                                       A-4914-18T2
                                4
            I. THE [JUDGE] ERRED IN [HIS] CONCLUSION
            THAT TERMINATION OF PARENTAL RIGHTS IS
            IN THE BEST INTERESTS OF THE CHILD UNDER
            N.J.S.A. 30:4C-15.1(a).

            A. THE [JUDGE] ERRED IN CONCLUDING THAT
            [THE FATHER] IS UNWILLING OR UNABLE TO
            ELIMINATE THE ALLEGED HARM TO [THE
            CHILD] WHERE HE PROVIDED A PLAN FOR HER
            SAFETY AND STABILITY IN THE HOME OF
            HER GRANDPARENTS.

            B. THE [JUDGE] ERRED IN CONCLUDING THAT
            [THE DIVISION] EXERCISED REASONABLE
            EFFORTS TO PROVIDE SERVICES TO HELP [THE
            FATHER] CORRECT THE CIRCUMSTANCES
            THAT LED TO THE CHILD’S PLACEMENT
            OUTSIDE THE HOME AND DID NOT FULLY
            EXPLORE KINSHIP LEGAL GUARDIANSHIP.

            C.  THE  [JUDGE'S] CONCLUSION  THAT
            TERMINATION OF PARENTAL RIGHTS WILL
            NOT DO MORE HARM THAN GOOD IS
            ERRONEOUS BECAUSE EXPERTS OPINED TO
            THE CONTRARY AND NO COMPARATIVE
            BONDING EVALUATION WAS PERFORMED.

                                        II.

      We begin our discussion with the well-settled legal framework regarding

the termination of parental rights. Parents have a constitutionally protected right

to the care, custody, and control of their children. Santosky v. Kramer, 455 U.S.

745, 753 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). But,

that right is not absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J.

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                                        5
527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599

(1986). At times, a parent's interest must yield to the State's obligation to protect

children from harm. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382,

397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To effectuate

these concerns, the Legislature created a test to determine when it is in the child's

best interest to terminate parental rights. To terminate parental rights, N.J.S.A.

30:4C-15.1(a) requires the Division to prove by clear and convincing evidence:

             (1) The child's safety, health, or development has been
             or will continue to be endangered by the parental
             relationship;

             (2) The parent is unwilling or unable to eliminate the
             harm facing the child or is unable or unwilling to
             provide a safe and stable home for the child and the
             delay of permanent placement will add to the harm.
             Such harm may include evidence that separating the
             child from [her] 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
             circumstances which led to the child's placement
             outside the home and the [judge] has considered
             alternatives to termination of parental rights; and

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




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                                         6
See also A.W., 103 N.J. at 604-11. The four prongs of the test are "not discrete

and separate," but "relate to and overlap with one another to provide a

comprehensive standard that identifies a child's best interests." K.H.O., 161 N.J.

at 348. "The considerations involved in determinations of parental fitness are

'extremely fact sensitive' and require particularized evidence that address the

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

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

      Our review of a family judge's factual findings is limited. Cesare v.

Cesare, 154 N.J. 394, 411 (1998). "When a biological parent resists termination

of his or her parental rights, the [judge's] function is to decide whether that

parent has the capacity to eliminate any harm the child may already have

suffered, and whether that parent can raise the child without inflicting any

further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81,

87 (App. Div. 2006). The factual findings that support such a judgment "should

not be disturbed unless 'they are so wholly insupportable as to result in a denial

of justice,' and should be upheld whenever they are 'supported by adequate,

substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super.

172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co.

of Am., 65 N.J. 474, 483-84 (1974)). "[T]he conclusions that logically flow


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                                        7
from those findings of fact are, likewise, entitled to deferential consideration

upon appellate review." R.L., 388 N.J. Super. at 89.



                                       III.

      We now turn to defendants' arguments that the judge erred in finding the

Division proved each of the four prongs under the best interests test by clear and

convincing evidence.     We disagree with their contentions, and we affirm

substantially for the reasons given by the judge. We add the following.

                                        A.

      The first prong requires the Division to prove that "[t]he child's safety,

health, or development has been or will continue to be endangered by the

parental relationship[.]" N.J.S.A. 30:4C-15.1(a)(1). "Although a particularly

egregious single harm can trigger the standard, the focus is on the effect of harms

arising from the parent-child relationship over time on the child's health and

development." K.H.O., 161 N.J. at 348. "[T]he attention and concern of a caring

family is 'the most precious of all resources.'" In re Guardianship of D.M.H.,

161 N.J. 365, 379 (1999) (quoting A.W., 103 N.J. at 613). "[W]ithdrawal of

. . . solicitude, nurture, and care for an extended period of time is in itself

a harm that endangers the health and development of the child." Ibid.


                                                                           A-4914-18T2
                                        8
      As to the mother, the judge found that the parental relationship had and

would continue to endanger the child's health and development. He found the

mother violated the safety plan, was in denial that J.B. raped her, suffered from

psychological harm due to the rape, was unable to find stable housing and

employment, tested positive for cocaine and marijuana, mismanaged money

resulting in an eviction, and suffered from anger management issues. The judge

also found the Division offered housing assistance to the mother, among other

services. He concluded these problems contributed to the endangerment of the

child's health and development.

      The judge found that the father also harmed the child's health and

development. The judge acknowledged that the father sexually abused the child,

failed to comply with court orders, and failed to undergo substance abuse

evaluations or treatment despite problems with marijuana and opiates. The

judge concluded that these problems therefore harmed the child.

                                       B.

      The second prong of the best interests test requires the Division to present

clear and convincing evidence that "[t]he parent 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." N.J.S.A. 30:4C-15.1(a)(2). The judge must


                                                                          A-4914-18T2
                                        9
consider whether the parent cured and overcame the initial harm that endangered

the child and whether the parent is able to continue the parental relationship

without recurrent harm to the child. K.H.O., 161 N.J. at 348-49. To satisfy its

burden, the Division must show the child faces continued harm because the

parent is unable or unwilling to remove or overcome the harm. N.J. Div. of

Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 483 (App. Div. 2012).

The first and second prongs are related, and often, "evidence that supports one

informs and may support the other as part of the comprehensive basis for

determining the best interests of the child." D.M.H., 161 N.J. at 379.

      "Parental unfitness may also be demonstrated if the parent has failed to

provide a 'safe and stable home for the child' and a 'delay in 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 [a] 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).

      As to the mother, the judge found that she was unable or unwilling to

remove or overcome the harm that led to the child's removal, and the judge

emphasized that the mother failed to make progress towards reunification during

the five-year period between the removal and trial. Three experts—including


                                                                         A-4914-18T2
                                      10
the mother's expert—agreed that she was unable to safely parent the child at the

time of trial and in the foreseeable future. The judge offered several examples

demonstrating the mother was unwilling and unable to provide the child with a

safe home.

      First, the judge noted the mother had not complied with the services

offered to combat her issues. Second, the Division's psychology expert, Dr.

Gerald Figurelli, Ph.D., had "grave concerns" regarding the mother's

downplaying of the son and the child's sexual incident because the mother

planned to house both children together. Third, the mother's expert testified that

she was in denial over J.B.'s abuse of her, as well as the allegations that the

father abused the child. The mother's expert opined that the mother suffered

deep trauma from her experiences with J.B., which led to a fragmentation of her

executive functioning, and that she heavily relies on schizoid fantasies to cope

with the trauma⸻which, according to the expert, was long-standing abuse and

clinically supported. Finally, the judge emphasized that during a recent visit,

the mother showed "grossly poor judgment" by drinking alcohol out of a plastic

bottle during a midday visit, returning the child to her resource parent after

midnight on school nights, and allowing the child to dress in provocative

clothing and wear makeup.


                                                                          A-4914-18T2
                                       11
      As to the father, the judge reached the same conclusion.          The judge

identified the problems associated with the father's inability or unwillingness to

parent.

                  [The father] has not seen [the child] in
            approximately three-and-a-half years. This is largely
            due to [the child] unambiguously expressing her desire
            throughout litigation that she never wanted to see [the
            father] again. A Family Part [judge] . . . found by a
            preponderance of the evidence that [the father] sexually
            abused [the child]. After this finding, the [judge]
            suspended contact between [the child] and [the father].
            Thereafter, [the father] has not complied with any court
            orders designed to pave the path toward possible future
            contact with [the child], regardless of whether some
            form of contact could ever ultimately be in the best
            interests of [the child]. These years of noncompliance
            prove by clear and convincing evidence that [the father]
            is unwilling or unable to provide a safe and stable home
            currently and in the foreseeable future.

Additionally, it was Dr. Figurelli's uncontroverted opinion that forcing any sort

of visitation between the child and the father would harm the child.

      As to the father's argument that his parents⸻the child's paternal

grandparents⸻should have been evaluated as placement for the child, the judge

addressed this placement option.

            [The child] was vehemently against being placed or
            visiting with the paternal grandparents, because she
            feared that they would provide contact with [the father].
            [The father] himself admitted that his hope was that [the
            child] would be placed with his parents [so] that he

                                                                          A-4914-18T2
                                       12
            could reinitiate contact with her outside the [c]ourt's
            supervision.

While not determinative, a judge should consider a mature child's wishes when

deciding whether to terminate parental rights. N.J. Div. of Youth & Family

Servs. v. E.P., 196 N.J. 88, 112-13 (2008).        Additionally, Dr. Figurelli

recommended that the child not be placed with her paternal grandparents. We

therefore find that the judge's findings as to prong two were supported by

adequate, substantial, and credible evidence.

                                      C.

      As to prong three, N.J.S.A. 30:4C-15.1(a)(3) requires the Division to

make "reasonable efforts to provide services to help the parent correct the

circumstances which led to the child's placement outside the home," and the

judge to "consider[] alternatives to termination of parental rights." The judge

found the Division provided defendants—and the child—with a plethora of

services.

      As to the mother, the judge found the Division made available individual

counseling, group counseling, grief counseling, anger management, and sexual

abuse counseling; alcohol-abuse assessments, drug screens, and drug treatment;

two therapeutic visitation programs, visitations, and supervised visitation;

psychological, psychiatric, and bonding evaluations; bus passes             and

                                                                       A-4914-18T2
                                      13
transportation aides; and parent-mentor services, homemakers, and parenting

skills classes. Likewise, as to the father, the Division made available substance

abuse assessments and treatment, individual therapy, and a psychological

evaluation. Moreover, as for the child, the Division arranged for speech therapy,

supervised visitation, camp, counseling, therapy, CMO services, psychological

evaluations, and mental health services.

      Defendants argue the resource parent should not have been a placement

option because no bonding evaluation was conducted between the resource

parent and the child. A bonding evaluation is not necessary where termination

"was not predicated upon bonding, but rather reflected [the child's] need for

permanency and [the parent's] inability to care for [the child] in the foreseeable

future." N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593

(App. Div. 1996); see also L.J.D., 428 N.J. Super. at 491-92. Here, a bonding

evaluation was not required because termination was necessary to give the child

permanency, and the judge determined that defendants could not provide this

stability. After the resource parent testified, the judge found she understood the

child's needs and she was "very persuasive and insightful in her understanding

of all the complex dynamics at issue in this case." He also found her credible

when she said she intended to adopt the child, thus creating permanency.


                                                                          A-4914-18T2
                                       14
      As previously noted, the judge's rejection of the grandparents for possible

placement is well supported by the record. As to the father's contention that the

judge erred in considering hearsay testimony regarding the child's statements

that she did not want to live with the paternal grandparents, the father failed to

object to these statements. See R. 2:10-2 (noting that a trial error or admission

may be disregarded "unless it is of such a nature as to have been clearly capable

of producing an unjust result"); see also N.J. Div. of Youth & Family Servs. v.

M.C. III, 201 N.J. 328, 341-42 (2010) (declining to find error where the

defendant consented to the admission of relevant documents). Thus, the judge

correctly found that no viable alternatives to termination of parental rights

existed.

                                        D.

      The fourth prong of the best interests test requires a determination that the

termination of parental rights "will not do more harm than good." N.J.S.A.

30:4C-15.1(a)(4). The judge must ask whether, "after considering and balancing

the two relationships, the child will suffer a greater harm from the termination

of ties with her natural parents than from the permanent disruption of her

relationship with her foster parents." K.H.O, 161 N.J. at 355. This prong

"cannot require a showing that no harm will befall the child as a result of the


                                                                           A-4914-18T2
                                       15
severing of biological ties." Ibid. "The overriding consideration under this

prong 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 [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).

       The mother argues the Division failed to satisfy prong four because there

was no comparative bonding evaluation between the resource parent and the

child, and that if the resource parent adopts the child, she will forbid the mother

from seeing her daughter, thus harming the child.          Again, a comparative

bonding evaluation is not necessary here because the termination was based on

the child's need for permanency and stability. See B.G.S., 291 N.J. Super. at

593.

       Additionally, the judge found that termination of the mother's parental

rights would not do more harm than good. Dr. Figurelli expressed that the child

showed persistent "clinginess," concluding the relationship was not necessarily


                                                                           A-4914-18T2
                                       16
secure.   He opined that the mother had problems maintaining appropriate

boundaries with the child, which the resource parent also testified to. Dr.

Figurelli concluded that the bond⸻though strong⸻was more akin to a sibling

relationship than a developmentally secure parental bond. The judge found Dr.

Figurelli credible and therefore determined that the Division met prong four as

to the mother.

      As to the father, the judge found that he did not have a relationship with

the child for "the first several years of her life." He had no contact with her for

the first three and one-half years.     At the time of trial, the child wanted

"absolutely no contact" with the father. Dr. Figurelli opined that contact with

the father would be detrimental to the child. The judge found that the child

"ha[d] stabilized" and had "begun to treat her trauma" in the resource parent's

care. Thus, he concluded that the Division had shown by clear and convincing

evidence that termination of the father's parental rights would not do more harm

than good.

      According to Dr. Figurelli, termination of parental rights was unavoidable

and necessary for the child's health, development, and safety. The resource

parent wants to adopt the child and understands her developmental needs. As

the judge pointed out, defendants had over five years to work toward


                                                                           A-4914-18T2
                                       17
reunification, and the child suffers from "very traumatic experiences and is

currently doing well in a resource home that provides her with the safety and

stability that she particularly needs." Moreover, the judge found that the child

is now a teenager and needs the psychological certainty that permanency

provides.

      Affirmed.




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