                                      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                                NOT FOR PUBLICATION WITHOUT THE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-5172-17T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

B.T.W.,

          Defendant-Appellant,

and

S.E.F.,

     Defendant.
_________________________

IN THE MATTER OF THE
GUARDIANSHIP OF B.L.W.
and M.U.W.,

     Minors.
_________________________

                    Submitted August 13, 2019 – Decided August 20, 2019

                    Before Judges Messano and Natali.
             On appeal from the Superior Court of New Jersey,
             Chancery Division, Family Part, Cumberland County,
             Docket No. FG-06-0020-16.

             Joseph E. Krakora, Public Defender, attorney for
             appellant (Robyn A. Veasey, Deputy Public Defender,
             of counsel; Albert Manuel Afonso, Designated
             Counsel, on the brief).

             Gurbir S. Grewal, Attorney General, attorney for
             respondent (Donna Sue Arons, Assistant Attorney
             General, of counsel; Katrina Alicia Sansalone, Deputy
             Attorney General, on the brief).

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

PER CURIAM

      B.T.W. (Bobby) appeals from the termination of his parental rights to his

daughters, B.L.W. (Blair), who was born in 2012, and M.U.W. (Megan) born in

2014.1   The children's mother, S.E.F. (Sara), executed a general surrender of

her parental rights and is not a party to this appeal.

                                         I.

      The Division of Child Protection and Permanency (Division) became

involved with the family upon Blair's birth due to their concerns about Sara's


1
   We use fictitious names for B.T.W, B.L.W, M.U.W, and S.E.F., to protect
their privacy and for ease of reference. See R. 1:38-3(d)(12).


                                                                       A-5172-17T3
                                         2
"long history with the Division as a child" and domestic violence between her

and Bobby. When the Division opened the case for services, Bobby was on

probation and had an extensive criminal history including domestic violence, as

well as weapons and drug offenses.         The Division implemented a Safety

Protection Plan (SPP), agreed to by Bobby, which required him to be supervised

by a relative when in Blair's presence. At the time, Sara and Blair lived with

Sara's mother.

      Based on its concerns regarding Sara's history with the Division, Bobby's

substance abuse, and the domestic violence history between Bobby and Sara, the

Division subsequently filed a complaint under Title Thirty for the care and

supervision of Blair on July 25, 2012. The court ordered that Blair be placed in

the Division's care, and also ordered that Sara participate in domestic violence

counseling, family preservation services, and a psychological evaluation.

Bobby, who was incarcerated at the time, was also ordered to comply with

domestic violence counseling and attend a psychological evaluation.

      Bobby was released from jail in September 2012, but was re-incarcerated

approximately two months later for a domestic violence incident with Sara in

October 2012.    During his brief release, Bobby made no contact with the




                                                                        A-5172-17T3
                                       3
Division to arrange for visitation with Blair, and he failed to appear for two

scheduled substance abuse evaluations.

      In April 2013, Bobby underwent a substance abuse evaluation and was

referred for intensive outpatient care. Thereafter, a counselor from the Center

for Family Services made multiple unsuccessful attempts to get in touch with

Bobby to schedule an intake appointment. A month later, Bobby attended his

intake appointment, and later attended a group session, but his subsequent

attendance was sporadic.

      Bobby submitted to a psychological evaluation with Gregory C. Gambone,

Ph.D. Dr. Gambone's recommendations included that Bobby participate in a

psychiatric evaluation, another substance abuse evaluation, domestic violence

training, and parenting skills training.

      In May 2013, Bobby and Sara were involved in another domestic violence

incident. Bobby reported to a Division caseworker that Blair was present during

the incident. Three months later, a caseworker met with Bobby, who reported

that he did not have a stable residence. Bobby also stated that he was focused

on completing his recommended services, and wanted to visit Blair once the

court's visitation restrictions were lifted.




                                                                       A-5172-17T3
                                           4
      In April 2014, Megan was born. Approximately, three months later, on

July 23, 2014, the court terminated the Title Thirty litigation, finding that

although "both parents could benefit from . . . services, neither appear to be

willing to comply and the situation is such that is does not currently warrant a

removal."   The court ordered, however, that Bobby be restrained from the

children's home, and stated that Sara was "not an approved supervisor of his

contact with [Blair]."

      Five days later, the Division received a report that Sara allowed Bobby to

keep Blair and Megan overnight, and failed to return with them the following

day. During its investigation, the Division also discovered that Sara and Bobby

were with the children on two occasions that resulted in police involvement.

Accordingly, the Division removed the children from Sara's care and placed

them in a resource home, where they still remain.

      After a July 31, 2014 hearing, the court determined that the removal of

Blair and Megan from Sara's care was required because "the court ordered

restriction on [Bobby's] contact with the children was violated and there is

ongoing domestic violence between the parents." The court also ordered Bobby

to attend an updated psychological evaluation and substance evaluation, submit

to random urine screens, meet with a domestic violence liaison, and comply with


                                                                        A-5172-17T3
                                       5
all recommendations.    A Division caseworker spoke with Bobby after the

hearing to discuss the court ordered services. Bobby informed the caseworker

that marijuana and PCP were his drugs of choice, and that he had begun intensive

outpatient care.

      The Division scheduled weekly supervised visits with the children, but

Bobby missed all but one visit in August 2014. Additionally, the Division

repeatedly made unsuccessful attempts to contact Bobby by phone. That month,

Bobby was arrested on drug charges, and remained incarcerated until

approximately September 2017. After his arrest, a Division caseworker met

with him at the Cape May County jail, and Bobby stated that "he stopped using

drugs but was still selling drugs." At another visit to the jail a caseworker

explained to Bobby the importance to engaging in counseling and education

while in prison.

      In April 2015, Blair and Megan were returned to Sara's care. One month

later, however, the Division conducted an emergency removal and placed the

children with their previous resource parents after they were notified that Sara

was homeless.

      The court subsequently approved the Division's permanency plan of

termination of parental rights, followed by adoption. The court determined that


                                                                        A-5172-17T3
                                       6
the Division "provided reasonable efforts" towards reunification "including . . .

[i]individual counseling, domestic violence services, psychological evaluation,

supervised visitation, and in home parenting."       On October 27, 2015, the

Division filed a complaint for guardianship.

      That same month, the Division contacted Bobby's correctional facility to

ensure that Bobby was able to receive substance abuse services and domestic

violence counseling while in prison. The Division also made attempts to arrange

for "video visits" with Bobby and the children. Two months later, a Division

caseworker met with Bobby at the correctional facility and furnished him with

a court order and case plan, informed him of an upcoming court date, and

provided him with the dates of his upcoming psychological and bonding

evaluations. The caseworker also obtained the names of Bobby's prison social

workers in order to obtain proof that he completed substance abuse treatment.

      Thereafter, James L. Loving, Psy.D, conducted a bonding evaluation

between Blair and Megan and their resource parents. Dr. Loving observed that

the children were smiling, and Blair sat close to the resource parents, frequently

calling them "Mommy and Daddy." Dr. Loving noted that their interactions

conveyed "a sense of familiarity, comfort, and enjoyment."         Based on the

evaluation, Dr. Loving concluded "both girls have developed strong and mostly


                                                                          A-5172-17T3
                                        7
positive attachments to [their resource parents]." He determined that "removing

the sisters from their current [resource] home would place them at very high risk

of serious and enduring harm."

      Three months later, Bobby was transported from prison to submit to a

psychological evaluation conducted by Dr. Loving. Dr. Loving concluded that

Bobby "pose[d] severe risks in his role as a parent," presented a high risk of "re -

arrest and re-incarceration," and "has a significant history of domestic violence."

Dr. Loving observed that Bobby "has shown very little willingness or ability to

change his behavior for the better." Dr. Loving also noted Bobby's history of

substance abuse, lack of housing stability, and absence from his children's lives.

Based on these findings, Dr. Loving "strongly support[ed] the Division's goal of

adoption" by their resource parents, as it "would give both girls the best change

to enjoy physical safety, stability, and emotional health . . . ." Dr. Loving noted

that Blair and Megan "have already been in placement for an extended period of

time, and they need to experience a sense of permanency as soon as possible, or

else they will be at increasingly high risk for permanent emotional harm."

      Dr. Loving also attempted to conduct a bonding evaluation between

Bobby and the children on the same date. Blair and Megan, however, became




                                                                            A-5172-17T3
                                         8
distressed and refused to participate in the evaluation with Bobby. Dr. Loving

concluded that the children "experience little or no attachment with [Bobby]."

      Bobby was transferred to a facility similar to a halfway house to complete

his sentence. While there, he participated in a substance abuse screening, and

was diagnosed with mild substance abuse disorder. Additionally, the facility

evaluated Bobby's risk of recidivism as "high-medium." The Division contacted

Bobby's social workers at the facility to receive information on Bobby's

participation in services.

      The Law Guardian arranged for a bonding evaluation of Bobby, Sara, and

the children, to be conducted by Linda R. Jeffrey, Ph.D. Bobby did not attend

the scheduled evaluations. The appointment with Dr. Jeffrey was accordingly

rescheduled, and Bobby again failed to attend.

      Thereafter, Dr. Jeffrey conducted a bonding evaluation of the children and

their resource parents at the Law Guardian's request. Dr. Jeffrey observed that

Blair and Megan "displayed pleasure when they saw the resource home parents,"

and "maintained close proximity to them." Based on her evaluation, Dr. Jeffrey

concluded that the children "displayed a secure attachment to each of their

resource home parents," and "[s]everance . . . of a secure attachment is likely to




                                                                          A-5172-17T3
                                        9
place a child at risk for serious and enduring harm." Dr. Jeffrey recommended

that Blair and Megan remain in their resource parents' care.

      The Division continued to provide Bobby with supervised visitation,

despite Blair's statement during an individual therapy session that she did not

want Bobby to attend visits with her. In November 2017, the Division referred

Bobby and Sara to Families Matter for therapeutic supervised visitation with the

children. At a subsequent visit, Megan got upset and began to hit and kick

Bobby. Families Matter reported that the children had difficulty transitioning

when the resource parents left at the beginning of each visit, and that the children

"spit, kick, hit, and throw things in [Bobby's] face."

       On April 13, 2018, Bobby was again arrested for possession and

distribution of marijuana, heroin, cocaine, PCP, and synthetic cannabinoid, as

well as possession of drug paraphernalia and endangering the welfare of a child.

      The guardianship trial began approximately one month later. In addition

to documentary evidence, the Division presented the testimony of the Division

caseworker Taneka Singleton and expert psychological testimony from Dr.

Loving.    The Law Guardian proffered Dr. Jeffrey, an expert in forensic

psychology. The court concluded all these witnesses testified credibly. Bobby

did not testify, present any fact or expert witnesses, or documentary evidence.


                                                                            A-5172-17T3
                                        10
On the last day of trial, the court accepted Sara's general surrender of her

parental rights, and entered a judgment of guardianship terminating Bobby's

parental rights to Blair and Megan.

                                         II.

      Bobby argues on appeal that the Division failed to prove prongs three and

four of the "best interests of the child" test under N.J.S.A. 30:4C-15.1(a) by clear

and convincing evidence. The Law Guardian supported termination in the trial

court and joins the Division in urging us to affirm.

      With respect to prong three, Bobby maintains that the Division did not

make "reasonable efforts to provide services" while he was incarcerated to help

him correct the circumstances that led to Blair's and Megan's removal and

placement with their resource family. He further asserts that the Division's

efforts to "foster[] the parental relationship were fatally deficient" during his

extended periods of incarceration which resulted in the lack of a formative bond

between Bobby and his children. As to prong four, Bobby similarly claims that

the Division's failure to foster his parental relationship resulted "in the inevitable

outcome that the children were only bonded to their [resource] parents," and as

a result, the Division did not establish by clear and convincing evidence that




                                                                              A-5172-17T3
                                         11
termination of his parental rights "will not do more harm than good." N.J.S.A.

30:4C-15.1(a)(4).2

      We reject Bobby's arguments and affirm substantially for the reasons set

forth by Judge Michael R. Ostrowski, Jr., in his comprehensive and

well-reasoned oral opinion issued at the conclusion of the five-day guardianship

trial. All of the judge's findings are supported by substantial, credible evidence

and, therefore, are entitled to our deference. N.J. Div. of Youth & Family Servs.

v. F.M., 211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394, 413

(1998). We add the following comments.

                                          III.

      Parents have a constitutionally protected right to the care, custody, and

control of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982). "The

rights to conceive and to raise one's children have been deemed 'essential,' 'basic

civil rights . . . ,' and 'rights far more precious . . . than property rights.'" Stanley

v. Illinois, 405 U.S. 645, 651 (1972) (citations omitted). "[T]he preservation and



2
   On appeal, Bobby has not argued that the Division failed to establish prongs
one and two of N.J.S.A. 30:4C-15.1(a). Nor has he challenged the court's
finding under N.J.S.A. 30:4C-15.1(a)(3) that the Division "considered
alternatives to termination of parental rights."         We have nevertheless
independently reviewed the record and are satisfied that the Division clearly and
convincingly satisfied those statutory elements as well.
                                                                                A-5172-17T3
                                          12
strengthening of family life is a matter of public concern as being in the interests

of the general welfare . . . ." N.J.S.A. 30:4C-1(a); see also In re Guardianship

of K.H.O., 161 N.J. 337, 347 (1999).

      The constitutional right to the parental relationship, however, is not

absolute. 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. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To

effectuate these concerns, the Legislature created a test for determining whether

a parent's rights must be terminated in the child's best interests.        N.J.S.A.

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

the following four prongs:

            (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
            circumstances which led to the child's placement

                                                                            A-5172-17T3
                                        13
            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.

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

                                       IV.

      As noted, Bobby argues that the trial court erred in concluding the

Division proved the third prong because the court "misapplied the prevailing

legal standards," and the evidence failed to clearly and convincingly establish

that the Division made reasonable efforts to provide him with appropriate

services, "foster the parental relationship," and assist in reunification. We are

unpersuaded by these arguments.

      The third prong of the "best interests" standard contemplates the

Division's efforts to reunify the parent and the child by assisting the parent in

addressing the problems that led to placement.        K.H.O., 161 N.J. at 348.

Reasonable efforts is defined to include "[c]onsultation and cooperation with

[the parent] in developing a plan for appropriate services; providing services

that have been agreed upon, to the family, in order to further the goal of family

reunifications; . . . and facilitating appropriate visitation." N.J.S.A. 30:4C-

15.1(c). Services provided by the Division must be tailored to the parent's needs,


                                                                          A-5172-17T3
                                       14
but "are not measured by their success." In re Guardianship of D.M.H., 161 N.J.

365, 393 (1999).

       Further, the specific facts of each case are to be considered to determine

if the Division made reasonable efforts. N.J. Div. of Youth & Family Servs. v.

F.H., 389 N.J. Super. 576, 620 (App. Div. 2007). In determining whether the

Division has made such efforts, the court may consider a parent's refusal to

engage in the services the Division offers or recommends. A.W., 103 N.J. at

610.

       Here, there was substantial evidence supporting Judge Ostrowski's finding

that the Division made reasonable efforts to provide Bobby with services

designed to overcome the circumstances that resulted in the children's

out-of-home placement. See K.H.O., 161 N.J. at 354. When making its findings

the court correctly viewed the Division's efforts through the prism of Bobby's

extensive criminal history which included arrests and convictions for domestic

violence against Sara witnessed by Blair, drug possession, weapons offenses,

robbery, and aggravated assault, as well the attendant, lengthy incarcerations

during Megan's and Blair's formative years.         In this regard, Bobby was

incarcerated following arrests in 2012 and 2013. Further, in August 2014, he

was sentenced to a three-year custodial term with respect to his drug convictions.


                                                                          A-5172-17T3
                                       15
When he was released in July 2017 to a halfway house, he was arrested again in

April 2018 on drug charges and remained incarcerated through the course of the

litigation and guardianship trial.

      Bobby's claim that the Division's reasonable efforts were limited to a

psychological evaluation and minimal contacts with the correctional facility

ignore the Division's intensive engagement with him and Sara both before and

after his numerous incarcerations. For example, the Division referred Bobby to

domestic violence services, substance abuse and psychological evaluations. In

addition, the trial record supported the court's finding that the Division contacted

Bobby's prison and halfway house eight times to confirm that Bobby received

services. The Division also coordinated with Bobby's parole officer to insure

he was not burdened with duplicative services and testing obligations.

      After he was released on parole in 2017, the Division arranged for a

substance abuse evaluation which recommended a relapse prevention program.

Bobby's re-incarceration in April 2018, however, prevented him from

completing this service.     The Division also provided therapeutic visitation




                                                                            A-5172-17T3
                                        16
through Families Matter and arranged for Parent Child Interaction Therapy with

Blair, which did not occur due to Bobby's arrest and re-incarceration. 3

      Bobby challenge to the court's prong three finding based on the Division's

purported failure to arrange visits at the prison and foster his relationship with

Blair and Megan by setting up "meaningful phone calls or contact" is equally

meritless. When the Division removed Blair and Megan from Sara's care, it was

during a period when the children were under the Division's care and

supervision. The Division nevertheless encouraged visits between Bobby and

Blair during this period, despite a court order preventing unsupervised contact

with Blair or Sara due to concerns related to Bobby's extensive history of

domestic violence. The Division also arranged for visits to be supervised by a

relative but Bobby refused to visit Blair stating he did not want his visits




3
   We acknowledge that that although incarceration alone is insufficient to
establish parental unfitness, "particularized evidence of how a parent's
incarceration affects each prong of the best-interests-of-the-child standard" can
support termination of parental rights. Div. of Youth & Family Servs. v. R.G.,
217 N.J. 527, 556 (2014). Here, the court did not terminate Bobby's parental
rights solely due to his repeated incarcerations. To the contrary, the court
correctly noted Bobby's unavailability during critical periods in Blair's and
Megan's lives, and his inability to care for them. That inability to care for Blair
and Megan, and his withholding of solicitude from them, supports the court's
prong three and four findings.
                                                                           A-5172-17T3
                                       17
supervised. Further, days before Megan's birth in 2014, Bobby was arrested and

had not visited Blair for almost two years.

      Contrary to Bobby's argument, the facts of the case bear no resemblance

to those in R.G. In that case, the defendant was incarcerated shortly after his

child's birth and remained incarcerated for over five years. Id. at 535. Prior to

the defendant's imprisonment, he emotionally and financially supported his

child. Further, when his child was removed from the mother's care by the

Division, the defendant "immediately increased his efforts and contacted [his

child] to remain part of her life." Id. at. at 560. During his incarceration, the

defendant repeatedly wrote his child and once released, called daily and visited.

The child also expressed a desire to see her father and during one phone call told

him "I love you daddy" and "I can't wait for you to come home so we could

watch movies together." Id. at 541.

      Here, Bobby did not attend an approved visit with Blair or Megan before

their removal, and visited once prior to serving three years in prison August

2014. While he attempted to visit after November 2017, those visits required

therapeutic supervision, which the Division arranged.         Unfortunately, his

contact with Blair and Megan was further curtailed by his April 2018 re-

incarceration. We recognize the Division's obligation to "facilitate appropriate


                                                                          A-5172-17T3
                                       18
visitation," see N.J.S.A. 30:4C-15.1(c)(4), and are satisfied that the Division

appropriately discharged its obligation here.

                                       V.

      Bobby also argues that Judge Ostrowski committed error in finding that

the Division proved the fourth prong because the evidence failed to show that

termination would not do more harm than good. Again, we disagree.

      The final prong of the statutory best interests test assesses whether

"[t]ermination of parental rights will not do more harm than good" to the child.

N.J.S.A. 30:4C-15.1(a)(4).    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). The question to be

addressed "is 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. To satisfy this prong, the State should present

a "well qualified expert who has had [a] full opportunity to make a

comprehensive, objective, and informed evaluation of the child's relationship

with both the natural parents and the [resource] parent[]." N.J. Div. of Youth &

Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (citations omitted).


                                                                          A-5172-17T3
                                       19
      With respect to the court's prong four findings, Judge Ostrowski relied

upon the expert testimony of Dr. Loving and Dr. Jeffrey, who conducted

bonding evaluations between the children and their resource parents. Dr. Jeffrey

stated that the children and their resource parents possessed a secure and

attached bond, and removing Megan and Blair from their care would cause

enduring and severe harm. Dr. Loving testified similarly. He observed a strong

attachment with the children and their resource parents and noted that they were

capable of mitigating any harm as a result of terminating Bobby's parental rights.

Both experts recommended adoption by the resource parents. Based on Dr.

Loving's and Dr. Jeffrey's credible testimony that separating Megan and Blair

from their resource parents, who raised both of them essentially since birth,

would be "catastrophic," the court properly concluded that severing Megan and

Blair's bond with their father would not do more harm than good.

      In sum, after a thorough review of the record, we conclude that Judge

Ostrowski's factual findings are fully supported by the record developed during

the guardianship trial and, in light of those facts, his legal conclusions as to the

best interests of the child test are unassailable. To the extent we have not

specifically addressed any of Bobby's arguments, we find them to be without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


                                                                            A-5172-17T3
                                        20
Affirmed.




                 A-5172-17T3
            21
