                             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                        NOT FOR PUBLICATION WITHOUT THE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-3788-15T4

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

              Plaintiff-Respondent,

v.

H.D.C.,

              Defendant-Appellant,

and

R.B.,

          Defendant.
________________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF T.R.C., a minor.
________________________________________

              Submitted May 2, 2017 – Decided June 28, 2017

              Before Judges Messano and Grall.

              On appeal from the Superior Court of New
              Jersey, Chancery Division, Family Part,
              Essex County, Docket No. FG-07-194-15.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Anna Patras, Designated
              Counsel, on the briefs).
          Christopher S. Porrino, Attorney General,
          attorney for respondent (Andrea M.
          Silkowitz, Assistant Attorney General, of
          counsel; Casey Woodruff, Deputy Attorney
          General, on the brief).

          Joseph E. Krakora, Public Defender, Law
          Guardian, attorney for minor (James J.
          Gross, Designated Counsel, on the brief).

PER CURIAM

     H.D.C. appeals a judgment of guardianship terminating her

parental rights to one of her four children, Tara.1    Tara's

father, R.B., does not appeal.     R.B. voluntarily surrendered his

parental rights, but he conditioned his surrender on Tara's

adoption by his sister, E.B., or her husband, H.Y.     An order

entered with the judgment authorizes the Division of Child

Protection and Permanency (Division) to file a complaint for

Tara's adoption by E.B. and H.Y.     The Division and the law

guardian oppose H.D.C.'s appeal.

     For the reasons that follow, we conclude that the Division

failed to establish termination is in Tara's best interest, as

defined in N.J.S.A. 30:4C-15.1(a)(1)-(4).     Accordingly, we

remand for further proceedings in conformity with this opinion.




1
  We have assigned a fictitious name to each of H.D.C.'s children
to protect their confidentiality.


                                 2                          A-3788-15T4
                                  I.

     The Division removed H.D.C.'s children from their home in

January 2014.   At that time, her son Tyler2 was twelve; her

daughter Tara was nine; her son Andy was two; and her daughter

Ann was seven months old.     The children were removed from the

home they and H.D.C. shared with Andy's and Ann's father, A.A.W.

     The Division removed the children on an emergency basis

pursuant to N.J.S.A. 9:6-8.29, after substantiating a report of

neglect and inadequate supervision evidenced by the children's

poor hygiene, Tara's and Tyler's frequent absences from school,

and Tara's and Tyler's burning Andy while they were playing with

a cigarette lighter at home unsupervised.     The substantiation

came from the school's attendance records, foul odors emanating

from the children, their soiled mattresses and clothing, Andy's

healing burns, and Tara's account of how the burns were

inflicted.

     After removing the children, the Division separated them,

by gender rather than age, and placed them with two Division-

approved resource families.    Two days later, a judge approved

the removal and placement, directed H.D.C. and A.A.W. to return



2
  Tyler's father, E.B., Jr., was not located and default was
entered against him on July 6, 2015.


                                  3                         A-3788-15T4
on February 24, 2014, and directed the Division to provide

weekly supervised visitation and promptly identify relatives

willing to care for the children.

    H.D.C. and A.A.W. never disputed the Division's

justification for removal.    They acknowledged placing the

children in "an unsafe and unsanitary home environment, which

exposed them to a substantial risk of harm."    They admitted

failing to "properly attend to the children's hygiene and

grooming" and "properly supervise the children on the day that

[Andy] was burned."   And, they stipulated that those acts and

omissions constituted abuse or neglect.   On that stipulation,

the judge found H.D.C.'s and A.A.W.'s conduct caused "a child's

physical, mental, or emotional condition to be impaired or in

imminent danger of becoming impaired . . . ."    N.J.S.A. 9:6-

8.21(c)(4).

    The Division commenced its efforts to identify and address

the causes for removal of the children when H.D.C. returned to

court on February 24, and H.D.C. submitted to a drug test that

was positive for marijuana.   Apart from one refusal to submit to




                                 4                            A-3788-15T4
a test in July 2014, H.D.C. did not have another positive

result.3

     On February 25, 2014, H.D.C. submitted to a psychological

evaluation by Elizabeth E. Groisser, Psy.D.4   During that

evaluation, H.D.C. acknowledged she had been smoking marijuana

for several months and on a daily basis since her children were

removed.   She claimed to have a history of panic attacks

formerly controlled by medication and explained she was using

marijuana to address anxiety.   H.D.C. admitted she was enraged

when she learned her older children burnt Andy and hit Tara and

Tyler with a belt.   H.D.C. stressed, and the Division caseworker

confirmed, there was no evidence of injury attributable to that

discipline.


3
  In its brief on appeal, the Division erroneously refers to a
positive test for marijuana on February 13, 2014. The positive
test-result the Division references is from January 13, 2104,
and it was done in connection with an unsuccessful complaint for
custody filed by a relative in a non-dissolution case. The
trial judge recognized the date and circumstance of this test in
his careful opinion.
4
  The trial court properly excluded complex opinions and
diagnoses included in reports prepared by experts who did not
testify at trial. Accordingly, we do not address them.

     In contrast, the judge ruled, again properly, that H.D.C.'s
admissions and the recommendations made by non-testifying
experts would be admitted for the limited purpose of evaluating
the adequacy of the Division's efforts and H.D.C.'s compliance.
Accordingly, we discuss such admissions and recommendations.


                                5                            A-3788-15T4
     Dr. Groisser recommended:   parenting classes; a drug abuse

assessment; outpatient treatment; a psychiatric evaluation to

determine whether H.D.C. would benefit from medication for

anxiety5; and individual psychotherapy to develop skills to deal

with "emotion dys-regulation" and anger.

     H.D.C. initially declined treatment for drug abuse, but in

April she submitted to an assessment and commenced treatment in

the Bridge's Stepping Stones Program the day after she was

admitted.   By that time, Andy and Ann had been removed from

their resource families and placed with A.A.W.'s parents.

     In April, 2014, Tara, who was still living with a resource

family, was evaluated by a clinical psychologist, Brett A.

Biller.   He reported Tara expressed interest in returning to her

mother, recalled her mother doing "nice things" with her, and

reported enjoying her weekly visits with H.D.C.   Tara knew her

mother had to "do something important" before Tara could return

home and hoped to return soon.

     Tara did not know why she and Tyler were with different

resource families, and she mentioned that Tyler helped her with

homework and played games with her.   Tara also described



5
  During a subsequent substance abuse evaluation, H.D.C. reported
that she was last treated for anxiety in Summer 2013 and was
supposed to return.

                                 6                          A-3788-15T4
positive interactions with her maternal grandmother in Georgia,

and her maternal grandfather who lived closer.    The child

admitted to being worried "about things with the family" and

wishing her "mother's attitude" and yelling would change.

    For Tara, Dr. Biller recommended:     family therapy to assist

her with discussing her feelings and understanding such

discussions would not jeopardize her relationships; a mentoring

program; a psychological evaluation of H.D.C. to see if she has

the appropriate insight to serve her children's needs; and a

delay of reunification until H.D.C. was "able to maintain a

secure physical and emotional home environment" and Tara was

able to "safely communicate her feelings to her mother."

    Apart from a December 8, 2014 order indicating that H.D.C.

opposed mentoring for Tara, the record on appeal does not

disclose any other services the Division offered for Tara.

    In May 2014, Tara was placed with E.B., and H.Y.; Tyler was

still living with a resource family.    H.D.C., who been

participating in the Stepping Stones program, requested and was

given the opportunity to attend extra sessions.    Thereafter,

however, she missed six sessions in May.    When the program-

coordinator warned that H.D.C. was at risk of being discharged

on May 30, H.D.C.'s attendance improved.    She missed five

appointments in June and two in August.    H.D.C. was discharged

                               7                              A-3788-15T4
from Stepping Stones on August 12, 2014, with a recommendation

that she receive "behavioral health counseling" and take any

"medication that might be prescribed."

    H.D.C. received the psychiatric evaluation.   Ten days

before that evaluation, H.D.C. was taken to the hospital by

ambulance with severe symptoms of a panic attack, and six days

after the evaluation, H.D.C. stipulated to abuse and neglect.

The psychiatrist, Dr. Ambrose O. Mgbako, M.D., recommended

H.D.C. receive the services of a psychiatrist for medication

monitoring and cognitive behavioral therapy to handle panic

attacks.

    According to the program director for Stepping Stones,

H.D.C.'s anxiety was still "untreated" in September 2014.     The

director reported that H.D.C. said she intended to seek mental

health services at United Behavioral Health Center in July but

had not followed through.

    H.D.C commenced an eight-week parenting program with Family

Connections starting on November 3, 2014.   That program covered

parenting styles, discipline, establishing and enforcing family

rules, safety, peer pressure, sexual abuse prevention, anger

management and parent self-care.   She successfully completed

that program on December 22, 2014.



                               8                            A-3788-15T4
     H.D.C.'s effort came too late.   On December 8, 2014, the

judge approved the Division's request to file a complaint for

termination of H.D.C.'s parental rights to all four children.6

The December 8 order includes several reasons for the court's

approval of the Division's decision to proceed with termination.

H.D.C. had:   "just re-started parenting classes, although the

case has been open for nearly one year"; not followed through

with recommendations of evaluating clinicians; failed to attend

substance abuse treatment and counseling as recommended; not

received "psychotropic medication monitoring"; not made

meaningful progress toward reunification; not demonstrated

commitment to parenting; and, continued to share a home in

deplorable condition with A.A.W.

     Throughout the litigation, H.D.C. and A.A.W. regularly

appeared for weekly visitations with the children.   The December

8 order includes a description of H.D.C.'s and A.A.W.'s behavior

during those visitations.   This description became important at

trial because the only clinical psychologist who did bonding

evaluations in this case, Dr. Peter DeNigris, relied upon it in




6
  At that time, the Division also sought termination of the
fathers' respective parental rights — R.B.'s to Tara, A.A.W.'s
to Andy and Ann, and E.B. Jr.'s to Tyler.


                                9                         A-3788-15T4
concluding that H.D.C. and Tara did not have a healthy bond.7

The order states:    there were "interactions" that were "not

particularly positive"; the adults focused their "attention" on

the "younger children," while "largely" ignoring "the older

children"; and H.D.C. was observed intimidating Tara.

     The Division filed its complaint for guardianship on

January 30, 2015.    By that time, H.D.C. had completed parenting

classes and commenced individual sessions "to address parenting

strategies and her past history of panic attacks."

     The court ordered psychological evaluations of H.D.C. and

the children's respective fathers and bonding evaluations in

March 2015.   In July, Tyler was placed with his maternal

grandmother in Georgia, and the first bonding evaluation was

done in September.

     During the hiatus pending bonding evaluations, H.D.C. did

well.   She continued to pass every drug test, and on July 30,

2015, Family Connections reported she had succeeded in meeting

all goals set for individual counseling and developing parenting

strategies and effective means for dealing with stress.




7
  Dr. DeNigris did not review reports on the visits prepared by
the supervisors. We know that because he testified that he
listed all materials he reviewed in his report and the list does
not include those reports.

                                10                          A-3788-15T4
    The problem at that point was that H.D.C. and A.A.W. had

planned to co-parent all four children, as they had been before

the children's removal.    Because A.A.W.'s recent drug screens

were positive for marijuana, H.D.C. and A.A.W. developed a plan

to eliminate that barrier to reunification.    During an August 3,

2015, case management conference, A.A.W.'s attorney advised that

they agreed to abandon their plan to co-parent and would

separate if one of them were ready to parent before the other.

Up to that point, H.D.C. had no reason to look for different

housing or a job because she and A.A.W. were living together in

housing he had provided.    Now she had a new challenge, finding

and financing housing.     There is no evidence that the Division

provided any assistance on that front.

    The paternal and maternal grandmothers — who, respectively,

were caring for Andy, Ann, and Tyler — participated in the

August 3 case management conference.     Both were sworn before

addressing the court.     A.A.W.'s mother asked for assistance with

promptly obtaining an appointment for Andy to see a specialist

because he was "slightly autistic."    The Division had an

appointment scheduled for October, but A.A.W.'s mother felt Andy

needed help sooner.   Because H.D.C. and A.A.W. had not heard

about Andy's autism until that conference, the judge directed

the Division to keep them informed.    Although the supervisors'

                                 11                          A-3788-15T4
reports on visitation described Andy's uncontrolled behavior,

there is no evidence that H.D.C. or A.A.W. ever received

information on parenting techniques appropriate for such a

special need.

     The maternal grandmother reported that Tyler was doing well

in Georgia and would start school on August 6.   She told the

judge she "would like [Tara] with [her] also,"8 explained that

Tara previously had been with her for five months and had

friends and teachers she liked in Georgia and she regretted

having sent Tara back to New Jersey.

     Countering the Division's contention the she did not have

enough space to accommodate Tara and Tyler, H.D.C.'s mother said

she did not want Tara and Tyler separated and was confident she

could find a larger dwelling.   The judge directed the Division

to follow-up.   Although H.D.C.'s mother moved to a three-bedroom

house to accommodate Tara, the Division was still awaiting an

interstate-inspection of that home when trial commenced on March

11, 2016.

     In December 2015, three months before trial commenced, Dr.

DeNigris completed the bonding evaluations.   Dr. DeNigris


8
  At trial, the Division's adoption caseworker testified that
Tara's maternal grandmother first expressed her interest in
having Tara live with her in September 2015, but the transcript
of August 3 eliminates any uncertainty about the date.

                                12                           A-3788-15T4
defines bonding as "the affectionate attachment between a child

and his or her caregivers that serves to join them emotionally

and that endures over space and time."    In his opinion, bonding

is significant because it provides children's "template for

future relationships," gives them a "sense of basic trust," and

helps them develop favorable social emotions, cope with stress

and reach their full potential.

    Dr. DeNigris evaluated the bond between Tara and H.D.C. on

September 10, 2015.   His opinion on bonding was based on a

forty-five to sixty minute observation of H.D.C. and A.A.W. with

all four of H.D.C.'s children.    At that time, Tyler was

thirteen, Tara was ten, Andy was three and Ann was two.

    At trial, Dr. DeNigris explained the duration of

observation period was standard and, in his opinion, adequate to

give him an accurate picture of the relationships regardless of

the number of participants.   The number of children involved did

not make it "more difficult to observe the nature of the

relationship" because H.D.C. and A.A.W. intended to care for all

four children.   In his report, however, Dr. DeNigris had

recognized that H.D.C. and A.A.W. planned to separate if the

Division deemed one of them unfit to parent, and, by the time of

trial, H.D.C. was planning to parent alone.



                                 13                         A-3788-15T4
    Dr. DeNigris's written report on his observations during

the bonding evaluation can be summarized as follows.     On

entering the room, Tara drew on a whiteboard, and Tyler sat by

himself.   H.D.C. and A.A.W. "immediately sat on the floor" with

Andy and Ann.   H.D.C. and Ann played with dolls.    Showing her

mother a doll, Ann said "Mommy, Look!"     At that point, H.D.C.

asked Tara if she wanted to join in, and Tara said "in a

minute."

    Tyler played with another toy on his own.     H.D.C. told

Tyler he always had to find something "weird" to play with, and

he explained that it was "science."    Ann said she was scared,

and H.D.C. asked why.    Ann did not explain, but said "Thank you,

Mommy."    While A.A.W. continued to focus on his son, Andy,

Tyler, Tara, and H.D.C. sang a song to Ann.     Andy then called,

"Mommy look" and emptied a container of toys.

    Dr. DeNigris did not observe any negative interaction

between H.D.C. and Tara, but he reported comments H.D.C. made to

Tyler that, in his opinion, were "derogatory" and "can only

serve to harm the parent-child relationship."     He noted,

however, that when Tyler called Tara "ugly," H.D.C. responded by

saying, "No.    None of my kids is ugly.   I'm gonna smack your

brother because he keeps throwing pieces."     He further noted,



                                14                            A-3788-15T4
that as H.D.C. put toys away she remarked, "There's too much

going on."

    When Tara moved away from H.D.C. to look at other toys,

H.D.C. asked her to bring back a specific game, "Jenga," which

Tara did.    Tara and Tyler then played "Jenga" together.   Because

Andy said he was sleepy, H.D.C. put him on her lap and they

watched Tyler and Tara play "Jenga."    At trial, Dr. DeNigris

acknowledged that H.D.C.'s having Tara return with the toy was a

positive sign.

    Noting that when A.A.W. and H.D.C. left the room at his

request, the children "did not exhibit any overt distress" on

"anticipated or actual separation," Dr. DeNigris indicated that

the absence of distress demonstrated a weak bond.    In contrast,

at trial Dr. DeNigris acknowledged that at Tara's age he would

"be more concerned if there was distress," because children of

her age "should generally be able to separate from the adults

. . . who [they are] with" and that lack of distress in children

of Tara's age on separation is not as relevant as it is with

younger children.

    Based on his observations, Dr. DeNigris reported these

opinions:    "(1) a healthy bond is not present between any of the

children and [A.A.W.]; (2) a healthy bond is not present between

[Tyler, Tara, Andy] and [H.D.C.]; and (3) a healthy bond is

                                15                          A-3788-15T4
forming between [Ann] and [H.D.C.]."   In reaching that opinion,

Dr. DeNigris observed that H.D.C. and A.A.W. focused their

attention on Andy and Ann, and they rarely gave attention to

Tyler and Tara, even though Tyler and Tara would "vie for their

birth mother's attention."   Noting that the adults gave

"noticeably less" attention to Tyler and Tara, Dr. DeNigris

wrote, "This is consistent with the information contained in the

records" reviewed.9

     Importantly, in Dr. DeNigris's opinion, H.D.C. could not

"serve as appropriate caretaker" for Tyler or Tara.   The basis

for that opinion was that he did not observe a "healthy bond"

between the older children and their mother.   He explained:

          In fact, [H.D.C.] directed most of her
          attention to [Andy and Ann], while paying
          significantly less attention to [Tyler and
          Tara]. This was a theme . . . noted in the
          background records and was something that was
          supposedly addressed with [H.D.C.] during
          visitations. Yet, her actions toward [Tyler
          and Tara] . . . remained unchanged."

     At trial, H.D.C.'s attorney asked Dr. DeNigris if parents

in similar circumstances generally need to pay more attention to


9
  As explained in note 7 supra, Dr. DeNigris did not review the
reports prepared by those who supervised the visitations. The
judge reviewed the supervisors' reports and cited those exhibits
in support of his determination that the visitation-reports
revealed a pattern of favoritism for the younger and inattention
to the older children.


                               16                          A-3788-15T4
younger children.    Dr. DeNigris responded:    "I would expect that

a parent would be able to divide his or her attention

appropriately among the two, three, four, however many children

were in the room."   He did not explain how, in his opinion, a

parent could have divided his or her attention more

"appropriately" in these circumstances.10      Nor did he identify a

standard accepted and applied by bonding experts to assess

appropriate division of attention among children of different

ages.

     Dr. DeNigris's opinion on H.D.C.'s capacity to parent was

also informed by his psychological evaluation of H.D.C.

Acknowledging that H.D.C. "generally appeared to accept

responsibility for how her actions and inactions contributed to

her ongoing involvement with the Division, particularly by

acknowledging her noncompliance during the early stages," he

observed that she "seemed to minimize the problematic nature of

some of the issues and/or to project blame onto others,"

especially when discussing her substance abuse, Tyler and Tara's

absences from school and the deplorable condition of her home.


10
  On October 8, 2015, when Dr. DeNigris evaluated the bond
between Tara and her paternal aunt and uncle, E.B. and H.Y.,
their thirteen-year-old daughter and twenty-year-old son, who
both resided in the home, were not present. Tara was the only
child there. Similarly, when Dr. DeNigris evaluated the bond
between Tara and her father, R.B., no other child was present.

                                17                            A-3788-15T4
In his opinion, H.D.C. could not correct the problems that lead

to removal until she recognized them.      If Dr. DeNigris

considered reports from other Division consultants indicating

that H.D.C. acknowledged responsibility for the children's

removal in formulating that opinion, he did not mention them.

    Crediting H.D.C. for the progress she had made, Dr.

DeNigris opined that H.D.C. could become a "viable caretaker"

for Andy and Ann but not for Tara or Tyler.      He distinguished

H.D.C.'s capacity to parent the older and younger children

primarily on the absence of a healthy bond between H.D.C. and

the older children.     At trial, he stressed that H.D.C. could not

meet Tara's needs, "[e]specially in the presence of the other

children."   In his opinion, H.D.C. would be overwhelmed.

    Dr. DeNigris did not recommend H.D.C.'s immediate

reunification with Andy and Ann.      In his opinion, reunification

should be delayed until H.D.C. had "individual psychotherapy"

geared to give her insight on issues she needed to address and

support to deal with "the added stress that [could] occur as

reunification nears."

    In his report, Dr. DeNigris recommended permanency for Tara

with her brother Tyler and their maternal grandmother, because

those children had expressed interest in living with her and she

was willing to commit to providing them permanency.     At trial,

                                 18                          A-3788-15T4
he said he also believed the sibling connection would be

beneficial for Tara.

    Circumstances were quite different when trial commenced on

March 11, 2016.   Things changed dramatically two days earlier,

on March 9.   That is when R.B. tendered and the judge accepted

his voluntary surrender of parental rights to Tara but

conditioned his surrender on Tara's adoption by E.B. or H.Y.      As

a consequence of R.B.'s identified surrender, Tara's permanent

placement with her grandmother recommended by Dr. DeNigris was

no longer a likely option.

    Equally if not more significant, on March 9, the Division

sought and obtained the judge's approval to pursue reunification

of Andy and Ann with H.D.C., but only after three to six months

of providing H.D.C. the therapy Dr. DeNigris recommended in

December 2015.

    The Division's attorney, representing developments

confirmed by the Division's adoption caseworker, explained the

dramatic change in course as follows:   "The conditions and

circumstances leading to removal of the children are being

corrected and it may soon be safe to return [Andy and Ann] home

to [H.D.C.] in the foreseeable future because [H.D.C. completed]

the services that were previously recommended for her including

parenting skills and counseling."   Elaborating, the attorney

                               19                          A-3788-15T4
advised that H.D.C. had recently:   submitted to a psychiatric

evaluation by Dr. Sostre, and the Division was awaiting the

doctor's report; been referred for counseling with Dr. Cox,

which had not commenced; obtained a job; and "moved in with a

family friend who agreed to the children residing there."

    As to Tara, the Division explained that Dr. DeNigris had

recommended H.D.C.'s reunification with her younger, but not her

older, children.   The judge approved the Division's new plan for

the younger children, and he dismissed Ann, Andy and their

father A.A.W. from the guardianship action.

    Because of R.B.'s identified surrender and the plan for

reunifying H.D.C. with Andy and Ann, at trial, Dr. DeNigris was

required to address circumstances very different from those

existing at the time of his bonding evaluations.   In his report,

Dr. DeNigris had not recommended Tara's placement with E.B. and

H.Y., who were now poised to adopt her pursuant to R.B.'s

voluntary surrender.   To the contrary, despite his generally

positive impressions of Tara's interactions with her aunt and

uncle during their bonding evaluation, Dr. DeNigris was

concerned by disclosures Tara made when he spoke to her

privately after observing her with E.B. and H.Y. in October

2015, and again after observing her with her father R.B., in

December 2015.

                               20                           A-3788-15T4
    On both occasions, Dr. DeNigris asked Tara how she was

doing with E.B. and H.Y.   In October, she said it was "Ok" and

denied feeling nervous, worried or upset with them, but she also

said she would be "nervous" if she were to remain with them

permanently.   Nevertheless, admitting she did not know her aunt

and uncle when she moved to their home, Tara said it was

"better."   In December, Tara painted a different picture.     Tara

described E.B. as "mean at times" and noted she wanted E.B. to

be her "last choice" for permanency.    Explaining that E.B. never

hit her, Tara said E.B. sometimes "yells and wants to hit me"

and she feels "scared" at times.

    Although Dr. DeNigris reported that Tara was forming a bond

with her paternal aunt and uncle, he also said he was surprised

the bond was "not more fully developed given the length of time"

Tara had been living with them.     Referring to Tara's December

disclosures about E.B., he posited that those "dynamics could be

preventing a healthy bond from fully forming."     In Dr.

DeNigris's opinion as of the date of his report, "it was

unlikely" Tara would suffer severe and enduring harm if removed

from E.B. and H.Y.

    At trial, Dr. DeNigris acknowledged that if the dynamics

Tara mentioned in December did not change, it could interfere

with the development of a fuller bond between E.B. and Tara in

                               21                            A-3788-15T4
the future.   Nevertheless, he believed E.B. and H.Y. could

mitigate the harm Tara would endure if her bond with H.D.C. were

severed, because they had been providing for her needs since May

2014.

    Neither E.B. nor H.Y. testified at trial.   Apart from

information Tara provided when the judge took her testimony on

the last day of trial, the only evidence about the state of

Tara's relationship with E.B. at the time of trial was provided

by Ms. Brown, the Division's adoption caseworker.   According to

Ms. Brown, she went to E.B.'s home regularly and asked Tara how

things were going; Tara always confirmed things were fine.

Brown discussed E.B. with Tara, and Tara had never said she was

mean.   Ms. Brown described E.B. as being a "stern" and "firm

caregiver because she wants what's best."

    Ms. Brown explained that the Division sought Tara's

adoption by E.B. and H.Y. rather than placement with her

maternal grandmother, as Dr. DeNigris recommended in his report,

because it was a "more permanent plan" and Tara was doing well

with E.B. and H.Y., both at their home and in her school.     She

explained the Division's preference for adoption by E.B. over

placement with Tara's maternal grandmother, because it would

devastate Tara if her grandmother accepted and returned her, as

she had done in the past.

                               22                           A-3788-15T4
    Adjusting his recommendation for placement of Tara with her

brother Tyler and her maternal grandmother, at trial, Dr.

DeNigris identified two benefits Tara would reap if she remained

with her aunt and uncle — one less change and adjustment period

and an opportunity for permanency.    Dr. DeNigris defined

permanency as the "need for security, stability, attachment and

trust" and he explained it would give Tara a "forever family

where she knows she would remain permanently, that she would not

be moved again."   In his opinion, permanency would "help address

any feelings of confusion, any anxiety that [Tara] has, any

sadness or self-blame, and low self-esteem."    Dr. DeNigris

explained that permanency is very important because "[w]ithout

it, [children] live in that constant state of uncertainty where

they can be moved at any time.    Multiple moves, multiple

adjustments [with] grief and loss at each stage."

    In Dr. DeNigris's opinion, permanency was more important

for a child of Tara's age than for Andy and Ann, because the

need for permanency is greater for children "old enough to

understand things on a different level . . . and that level of

understanding could increase their questioning . . . and . . .

feelings of   . . . low self-esteem or anxiety, depression."      Dr.

DeNigris further opined that adoption was preferable to foster

care, because adopted children, unlike children in foster homes,

                                 23                          A-3788-15T4
do not live in a state of uncertainty and, consequently, have

less anxiety, sadness and low self-esteem than foster children.

His explanations referred to children in general, not to

anything in particular about H.D.C.'s children, but he did not

explain the basis for the generality.

    Noting that Tara flip-flopped in stating her preference for

permanency, Dr. DeNigris attributed her changing preferences to

confusion related to the delay in permanency and to her feeling

torn about selecting a preferred caregiver from the several

adults in her life.    Apart from that confusion, Dr. DeNigris,

who had not done a psychological evaluation of Tara, did not

indicate any problems Tara had with self-esteem, anxiety or

depression.

    Dr. DeNigris stressed that he would not support

reunification of Tara and her mother, even if adoption were not

feasible.     In his opinion, if Tara were reunified with H.D.C.

and that reunification failed, it would exacerbate feelings of

anxiety, depression, low self-esteem, guilt and self-blame

flowing from failed placements and leave her questioning whether

she was contributing to those multiple placements.

    Dr. DeNigris further opined that Tara would be at risk of

"abuse or neglect" if reunified with H.D.C.    He based that

opinion on "the history of the case, the fact that the issues

                                 24                         A-3788-15T4
that contributed to . . . [] her removal have not been

remedied"; and observations from the bonding evaluation

where . . . [H.D.C.'s] attention was focused almost exclusively

on the two younger children" at Tara's expense.11   In his

opinion, whatever the placement, H.D.C. was not fit to parent

Tara, and would be overwhelmed by caring for Andy, Ann, and

Tara.

     H.D.C. testified on her own behalf.   She acknowledged that

she had no relationship with Tara's father R.B. and did not have

a great relationship with his sister, E.B.   She did not agree

with the Division's plan for Tara's adoption by E.B. and H.Y.,

because Tara did not like it with them and because H.D.C. felt

it would be best for Tara if she were with her mother and

siblings.

     Tara was the last witness at trial, and Dr. DeNigris

rendered his opinions without the benefit of her testimony or

hypotheticals based upon it.   The judge interviewed Tara on the

record but not in the physical presence of H.D.C. or the

attorneys, who listened from a different room.   During that



11
  In his final decision, the judge interpreted Dr. DeNigris's
opinion on risk of abuse or neglect as an opinion on risk of
physical harm. Dr. DeNigris did not say that, and, as
previously noted, there is no evidence that Tara sustained
physical harm under H.D.C.'s care.

                               25                            A-3788-15T4
interview, the judge posed questions developed beforehand with

input from the attorneys.     Before posing any question, the judge

ascertained that Tara understood her obligation to tell the

truth.

    Tara told the judge she liked living with E.B., her uncle

and her twenty- and thirteen-year old cousins.     She also said

she had enjoyed spending summers in Georgia with her grandmother

in the past and wanted to do that again; when they were

together, she and her grandmother planted flowers and baked

things.   Tara also told the judge she felt comfortable with E.B.

and said she cooked things with E.B. sometimes.

    Tara's wishes for the future were to work with her brother

Tyler in a bakery and participate in gymnastics and ice-skating.

She also told the judge she spoke to her brother almost every

week.

    When asked if others were trying to influence her answers,

Tara said she was not sure.     She said E.B. had spoken to her

about the interview.   Tara also admitted being concerned about

her answers hurting someone's feelings.     She told the judge she

would be sad if she did not live with Tyler, but she also said

she would be sad if she did not live with her aunt, her uncle,

her cousins, her mom, or Andy and Ann.     Tara's response deviated

only when she was asked about being sad if she did not live with

                                 26                         A-3788-15T4
her father.    In R.B.'s case she replied, "I don't know about

that."    As the judge noted in his final decision, Tara did not

express any preference about her living arrangement.

    Immediately before the judge delivered his oral opinion

terminating H.D.C.'s parental relationship with Tara, the judge

approved another change in the Division's plan for Tara's

siblings.     Specifically, the judge gave the Division approval to

forego termination of H.D.C.'s parental rights to Tyler and

provide permanency for him with his maternal grandmother

pursuant to the Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-

1 to -7 (KLG).

    Like the Division's plan to reunify Andy and Ann with

H.D.C. after affording H.D.C. three to six months of counseling,

the Division's new plan for Tyler could not be implemented for

several months.     That is so because Tyler had been with his

grandmother for about nine consecutive months on March 9 when

the judge approved the KLG plan, but his maternal grandmother

could not even file her petition for guardianship under the Act

until Tyler had been living with her for twelve consecutive

months.   N.J.S.A. 3B:12A-5(b)(10).

    As a consequence of the Division's court-approved plans for

her siblings and R.B.'s identified surrender of his parental

rights to Tara, Tara was the only one of H.D.C.'s children whose

                                 27                         A-3788-15T4
mother-child relationship was at stake when the judge delivered

his decision terminating her parental rights to Tara.

     The judge addressed Tara's unique position among H.D.C.'s

children immediately after he delivered his oral decision

terminating H.D.C.'s parental rights.    He did not address it in

deciding whether the termination of H.D.C. was in Tara's best

interest given this circumstance.

     The judge raised the issue of Tara's unique position

himself, after he delivered his decision and when H.D.C.'s

attorney requested continuation of visitation pending appeal.

The judge ordered one visit per month, and, addressing that

visitation, the judge directed:     "[T]here needs to be no talking

or exchange between the mother and [Tara] about the paternal

relatives [or] about where her siblings are going . . . ."12     The

judge noted the potential for Tara to "feel that it's because of

her [that] she's not going home and yet her younger siblings are

going home."   The judge explained that Tara would likely think

"the only difference between the siblings and her[,] is her.      In


12
  The judge's concern echoed one expressed by Tara's law
guardian during a colloquy on questions the parties proposed the
judge address while interviewing Tara in camera. Referring to
one question the Law Guardian exclaimed, "[W]hy on earth would
you tell a little girl that your siblings will be going home to
mommy but you can't. I mean that's horrible. I think that's
awful."


                               28                           A-3788-15T4
other words, that it's her fault that the younger siblings are

going home."   The judge elaborated:

            [Tara] know[s] her mother loves her, she
         know[s] her mother wants her and she could
         really feel responsible for herself not going
         home had she done something different.    And
         so any singling [sic] or comments about the
         younger siblings going home could invoke
         inadvertent or otherwise those feelings in
         [Tara].

    To diminish the risk of this potential harm to Tara, the

judge directed the Division's attorney to have Dr. Cox (who

would be providing H.D.C. the therapy pending reunification with

Andy and Ann recommended by Dr. DeNigris), and the Division's

caseworker (who would be arranging H.D.C.'s monthly visitation

with Tara and Tyler's kinship legal guardianship), to instruct

H.D.C. on proper responses to the difficult questions Tara was

likely to have.

                                 II.

    A parent's right to a relationship with his or child may be

terminated only if the State proves each of the four prongs of

the statutorily defined best interest test by clear and

convincing evidence.   N.J. Div. of Youth & Family Servs. v.

E.P., 196 N.J. 88, 103 (2008).    The Division must establish

that:




                                 29                        A-3788-15T4
          (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.
          . . . ;

          (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;

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

          [N.J.S.A. 30:4C-15.1(a).]

    The four prongs "are not discrete and separate; they

overlap to offer a full picture of the child's best interests."

N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 554

(2014).   Ordinarily, the court must decide "whether the parents

can raise their children without causing them further harm" and

the evidence "focus[es] on past abuse and neglect and on the

likelihood of it continuing"; the "inquiry is not whether the

biological parents are fit but whether they can cease causing

their child harm."   In re Guardianship of J.C., 129 N.J. 1, 10

(1992).   "'The considerations involved are extremely fact

sensitive and require particularized evidence that address[es]


                               30                            A-3788-15T4
the specific circumstance in the given case.'"     R.G., supra, 217

N.J. at 554 (quoting N.J. Div. of Youth & Family Servs. v. M.M.,

189 N.J. 261, 280 (2007) (citations and internal quotation marks

omitted)).

    In his oral decision, the trial judge addressed the

evidence pertinent to each prong of the best interest test and

concluded that the Division met its burden of proof.    Where, as

here, the judge had the opportunity to assess credibility and

the special expertise in matters of child welfare attributed to

judges of the Family Part, reviewing courts generally must defer

to judge's factual findings supported by the record.    E.P.,

supra, 196 N.J. at 104; M.M., supra, 189 N.J. at 293.     "Only

when the trial court's conclusions are so 'clearly mistaken' or

'wide of the mark' should an appellate court intervene and make

its own findings to ensure that there is not a denial of

justice."    E.P., supra, 196 N.J. at 104.

    This was a difficult case made more difficult by the

dramatic eleventh hour changes in the permanency plans for Tara

and her three half-siblings.   Having recognized the potential

for Tara to endure unique harm as the only one of H.D.C.'s

children to have a severed mother-child relationship, the judge

should have considered the specific circumstance of this case in

addressing Tara's best interest.     R.G., supra, 217 N.J. at 554.

                                31                          A-3788-15T4
The only expert testimony presented did not address that

question.     Indeed, the expert could not have expressed an

opinion on that subject because Tara was not in this unique

position until the trial was over and the judge authorized the

Division to pursue KLG for Tyler.

    As the Supreme Court has instructed, in termination cases

"[a] court must assure a complete and balanced presentation of

all relevant and material evidence sufficient to enable it to

make a sound determination consistent with the child's best

interests."    J.C., supra, 129 N.J. at 22; see generally id. at

19-24 (discussing the appropriate use of expert opinions on

bonding and differing schools of thought on its importance in

the context of case where a parent's delay allowed the formation

of a bond with a foster parent).      To that end, a judge "should

not hesitate to call on independent experts . . . ."     Id. at 22.

    We recognize the judge was dealing with the tension between

securing permanency promptly and developing an adequate record.

There is no question that "[a] child's need for permanency is an

important consideration" under the best interest test.      M.M.,

supra, 189 N.J. at 281.     But the case-specific circumstances in

this case include:    a pending report on a recent psychiatric

evaluation of H.D.C.; counseling for H.D.C. for three to six

months; and a three-month waiting period before Tyler's maternal

                                 32                            A-3788-15T4
grandmother could file a petition for his KLG.   In these

circumstances, the judge could and should have, at a minimum,

delayed issuance of his decision until the psychiatrist

transmitted the report.

    Moreover, as previously noted, Dr. DeNigris had

reservations about Tara's bond with E.B. and provided only a

conclusory explanation for his opinion that E.B. could mitigate

the harm Tara would endure.   Similarly, Dr. DeNigris had not

explained the basis for his opinion that H.D.C.'s division of

her attention among her children was not appropriate or how that

opinion supported his conclusion that H.D.C. would be

overwhelmed if she were caring for Andy, Ann, and Tara.

Unsupported and unexplained expert opinion has no value.    J.C.,

supra, 129 N.J. at 23 (noting that "[t]he main point in weighing

expert evidence is the fit between the expert opinion based on

scientific theory and professional experience and the facts of

the case"); id. at 22 (noting that "[a] particular theory

suffices if it has substantial acceptance within the community

of experts").

    In addressing the first, second and fourth prongs of the

best interest test, the judge relied in large part, albeit not

exclusively, on Dr. DeNigris's opinions.   The importance of Dr.

DeNigris's opinion to the judge's decision cannot be overstated.

                               33                           A-3788-15T4
Throughout his decision, the judge stressed that Dr. DeNigris's

opinion, which he found credible, unimpeached and unrebutted,

was the only expert opinion before the court.    Indeed, Dr.

DeNigris's conclusion that, with a psychiatric examination and

additional therapy, H.D.C. could parent her younger children but

not Tara or Tyler in the reasonably foreseeable future was the

cornerstone for the judge's decision.     Moreover, the judge

recognized a risk of harm to Tara — her unique position among

her siblings — that the expert had not addressed and the judge

deemed to be sufficiently significant and complex to require an

expert's advice on formulating appropriate responses to Tara's

likely questions.

    For all of the foregoing reasons, we reverse the judgment

and remand for reconsideration of Tara's best interest in light

of the potential harm from her unique position among her

siblings.   In reassessing Tara's best interest, the judge should

also consider Dr. Sostre's report, H.D.C.'s progress or lack

thereof in counseling and such updated or additional expert

evidence the judge requires or permits.    To the extent the judge

relied on H.D.C.'s failure to secure housing in evaluating

Tara's best interest, we also direct judge to consider whether

the Division provided reasonable assistance to H.D.C. when she



                               34                           A-3788-15T4
and A.A.W. announced their intention to separate in the event

that one but not the other were deemed ready to parent.

                                 III.

    H.D.C. also claims entitlement to reversal based on the law

guardian's failure to advocate Tara's interests and wishes as

required by N.J.S.A. 9:6-8.23(a).       We have considered the

arguments offered on that point in light of the record and

conclude they have insufficient merit to warrant discussion in a

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

    Reversed and remanded for further proceedings in conformity

with this opinion.




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