                                     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                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-4590-18T1
                                                                    A-4591-18T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

         Plaintiff-Respondent,

v.

A.T. and A.M., SR.,

     Defendants-Appellants.
________________________

IN THE MATTER OF THE
GUARDIANSHIP OF A.M.,
JR., and A.R.M.,

     Minors.
________________________

                   Submitted May 6, 2020 – Decided June 5, 2020

                   Before Judges Koblitz, Whipple and Mawla.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Gloucester County,
                   Docket No. FG-08-0019-19.
            Joseph E. Krakora, Public Defender, attorney for
            appellant A.T. (Robyn A. Veasey, Deputy Public
            Defender, of counsel; Catherine F. Reid, Designated
            Counsel, on the briefs).

            Joseph E. Krakora, Public Defender, attorney for
            appellant A.M., SR. (Robyn A. Veasey, Deputy Public
            Defender, of counsel; Meghan K. Gulczynski,
            Designated Counsel, on the briefs).

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

            Joseph Krakora, Public Defender, Law Guardian,
            attorney for minor G.D. (Meredith Alexis Pollock,
            Deputy Public Defender, of counsel; Todd S. Wilson,
            Designated Counsel, on the brief).

PER CURIAM

      In this consolidated matter, defendants A.T. 1 (Amelia) and A.M., Sr.

(Avery, Sr.) appeal from the June 18, 2019 judgment terminating their parental

rights to their biological children, A.M., Jr. (Avery, Jr.), born in January 2012

and A.R.M. (Alex), born in December 2016. The Division of Child Protection

and Permanency (Division) first became involved with the family in July 2016.

The children were removed from the defendants' care about a year later. After


1
  We use initials and pseudonyms to preserve the privacy of the parties. R.
1:38-3(d)(12).


                                                                        A-4590-18T1
                                       2
three years of unresolved substance abuse, mental health, employment, and

housing issues, the court found that the Division proved that termination of

parental rights was in the best interests of the children. The Law Guardian urges

affirmance, and after a thorough review of the facts in light of the pertinent law,

we affirm.

                             I. Factual Background.

      The evidence presented at trial revealed the following facts. The Division

first became involved with defendants in July 2016 when it received an

anonymous referral that a pregnant Amelia was "snorting Percocet pills that

were obtained illegally." During the Division's July 18, 2016 interview of

defendants at their home, which they shared with their then four-year-old son,

Avery, Jr. and Amelia's mother, G.M.T. (Gina), Avery, Sr. revealed he had been

prescribed Percocet. Gina, who, according to the Division, was "very coherent"

despite her schizophrenia, denied having any concerns about defendants '

parenting. Amelia was told to complete a urine screen.

      Later that day, Amelia called the Division and admitted she was abusing

Percocet and needed help.       Amelia tested positive for opiates.      A safety

protection plan (SPP) was implemented for a month, during which Avery, Sr.




                                                                          A-4590-18T1
                                        3
was approved to supervise Amelia with Avery, Jr. The Center for Family

Services (CFS) recommended an intensive out-patient program (IOP).

      Amelia began her IOP in September 2016, but after attending two group

sessions, she did not return to treatment and was officially discharged from the

program in November. She agreed to random drug testing the following month

but failed to comply.

      After his birth the following month, Alex tested positive for oxycodone

and suffered withdrawal symptoms. Alex was discharged to his parents at the

beginning of January 2017, with an SPP again in place requiring that Amelia's

contact with her children be supervised by Avery, Sr. or her grandmother,

G.A.T. (Gail). The SPP was lifted later in the month.

      Two months later, the court granted Gail joint custody of both children

and designated her as the parent of primary residence. Amelia and Avery, Sr.

had been living with his mother, L.W. (Lisa). Defendants were granted "open

and liberal parenting time as agreed." This order was modified at the beginning

of May 2017 to forbid Amelia from exercising unsupervised time with the

children if she had used drugs within twenty-four hours of the visit.

      The following month, the Division received another referral alleging that

Avery, Sr. was abusing heroin and morphine. He claimed he was only taking


                                                                        A-4590-18T1
                                       4
his prescribed oxycodone as directed. At this time, Avery, Sr. was living with

Lisa, while Amelia and the children lived with Gail.

      At the end of June 2017, the Division received its next referral from the

Monroe Township police, reporting that Amelia overdosed on heroin in th e

presence of then six-month-old Alex while she was at Lisa's house. The police

reported that "[f]ive full bags of heroin, paraphernalia/contraband and several

prescription[] bottles with [Gail's] name," were found in the room. Although

Gail denied that Amelia took Gail's medication, she noted her pills

"occasionally" went missing.     Thirty-two pills were missing from Gail's

oxycodone prescription bottle. A Dodd removal2 of Avery, Jr. from Gail's home

was facilitated.

      Later, Amelia, Avery, Sr. and Alex were found on the street by a police

officer. The Division worker went to the scene and observed that defendants

appeared to be "under the influence." Avery, Sr. was "falling/rocking into the

stroller where [Alex] [was] located." When the Division confronted Amelia

about her overdose that morning, she denied the allegation and stated nothing




2
  A "Dodd removal" is the emergency removal of a child from a home without
a court order, pursuant to the Dodd Act, N.J.S.A. 9.6-8.21 to -8.82.


                                                                       A-4590-18T1
                                       5
happened. Alex was also emergently removed due to defendants' "substance use

and their inability to keep him safe while in their care."

      The police reported that later that day, Avery, Sr. was arrested for being

under the influence and drugs were found on him. Two days later, the Division

obtained custody of both boys and defendants were allowed Division-supervised

visits only.

      The following month, Amelia admitted to using heroin and stealing Gail's

pills. Avery, Sr. continued to deny any substance abuse and stated he was not

under the influence. Defendants refused to submit to numerous unscheduled

drug tests.

      Psychologist Dr. Janet Cahill, Ph.D., concluded that Gail "had significant

deficits in cognition, memory and adaptive skills and was not able [to] safely

parent [Avery, Jr.] and [Alex] on her own." Dr. Cahill noted that because

Amelia admitted to substance abuse and tested positive for benzodiazepines and

opioids, her visitation with the children should remain supervised and she should

continue to comply with random drug testing and enter a detox progr am. As to

Avery, Sr., Dr. Cahill found him to be "very guarded and defensive," noting that

he refused to cooperate with random drug testing. She suggested that in addition

to supervised visitations and compliance with random drug tests, "he should be


                                                                        A-4590-18T1
                                         6
referred for short term motivational interviewing to attempt to improve his

insight and willingness to sincerely engage in other services."

      In October 2017 Amelia again tested positive for benzodiazepines and

opioids, as well as Suboxone. Avery, Sr. "nodded off" several times during his

drug evaluation and tested positive for heroin and marijuana. A short-term

"clinically managed high-intensity residential" treatment program was

recommended for both Amelia and Avery, Sr.

      A fact-finding hearing was held on November 15, 2017, where the court

heard testimony from two Division caseworkers and found the Division had not

demonstrated that defendants abused or neglected their children but were "part

of a family in need of services." The court continued to order defendants and

Gail to comply with evaluations and submit to random drug and hair follicle

testing. Defendants were allowed weekly supervised visits with their children.

In December 2017, Amelia revealed to the Division that she and Avery, Sr.

separated because "if they stayed together each one would probably still do

drugs."

      Avery, Sr. entered a substance abuse program in December 2017, but was

discharged six days later. In January 2018, Amelia was admitted into a detox

program. Upon her completion, she entered into an IOP.


                                                                      A-4590-18T1
                                       7
      Defendants    again   missed    several   unscheduled    substance      abuse

evaluations, but when they did attend, they often tested positive for various

drugs. Defendants also had difficulty complying with their drug rehabilitation

programs.

      In April 2019, Dr. Melanie A. Freedman, Ph.D., performed psychological

and bonding evaluations of defendants with their children. As to Amelia, Dr.

Freedman noted that "there is some attachment between [Amelia] and [Avery,

Jr.], [but] some parenting-related risks still remain, such as a high relapse

potential and lack of stable housing." Similarly, Dr. Freedman found that

although Avery, Sr. clearly loved his children, "his poor insight regarding his

need for any services and his past problems with compliance, including his

recent failure to undergo drug testing when explicitly requested to do so, suggest

a poor prognosis for reunification." Dr. Freedman supported termination of

parental rights.

      Defense psychologist Dr. Andrew P. Brown III, Ph.D. found that Avery,

Sr. had "significant issues revolving around lack of stability, support and

narcotic use," therefore failing to "demonstrate readiness to be a minimally

adequate parent/caregiver to his children." He opined, however, that despite

Avery, Jr.'s "secure attachment to the resource parents, [because] [Avery, Sr.]


                                                                           A-4590-18T1
                                        8
has remained as the central figure of emotional attachment in [his] life. . . .

[t]ermination of parental rights followed by severed contact will do more

psychological harm than good." Dr. Brown suggested the court "consider an

alternative arrangement to termination of parental rights that would insure

[Avery, Jr.] the freedom and capacity to continue contact with his natural

father." Dr. Brown did not suggest a practical alternative to termination, given

that New Jersey does not recognize open adoptions, where biological parents

retain visitation rights after adoption. In re Adoption of a Child by W.P., 163

N.J. 158, 172 (2000). Defendants did not testify.

      Amelia presents the following arguments on appeal:

            POINT I: DEPRIVATION OF A FUNDAMENTAL
            CONSTITUTIONAL RIGHT SHOULD NOT BE
            AFFIRMED WHERE THE FAMILY PART OPINION
            IS AMBIGUOUS AND INCOMPLETE, FAILING TO
            COMPLY WITH R. 1:7-4; AND WHERE THE JUDGE
            CONDUCTED THE PROCEEDINGS IN A MANNER
            THAT VIOLATED THE PARENTS' DUE PROCESS
            RIGHTS.

            A.    THE FAMILY PART FAILED TO MAKE
            CLEAR FINDINGS OF FACT ON CRITICAL ISSUES
            AND FAILED TO CORRELATE ITS FINDINGS OF
            FACT      TO     THE  NECESSARY    LEGAL
            CONCLUSIONS AS TO THE FOURTH PRONG OF
            N.J.S.A. 30:4C-15.1A.

            B.  THE FAMILY PART FAILED TO MAKE ANY
            LEGAL CONCLUSIONS AT ALL AS TO EITHER

                                                                        A-4590-18T1
                                       9
PART OF THE THIRD PRONG OF N.J.S.A. 30:4C-
15.1A.

C.  THE FAMILY PART CONDUCTED THE
PROCEEDINGS IN SUCH A WAY THAT THE
PARENTS WERE DENIED DUE PROCESS.

POINT II:  THE TRIAL COURT'S LEGAL
CONCLUSIONS AS TO N.J.S.A. 30:4C-15 WERE
NOT SUPPORTED BY SUFFICIENT, COMPETENT
EVIDENCE.

A.   THE "FACTS" FOUND BY THE TRIAL
COURT TO SUPPORT ITS LEGAL CONCLUSIONS
AS TO THE FIRST PRONG OF N.J.S.A. 30:4C-15.1A
WERE LARGELY BASED ON HEARSAY.

B.  EVEN IF THE EVIDENCE ON WHICH THE
JUDGE RELIED TO FIND THE FIRST PRONG
SATISFIED HAD BEEN COMPETENT, IT DID NOT
DEMONSTRATE PHYSICAL, EMOTIONAL OR
PSYCHOLOGICAL HARM TO THE CHILDREN.
NOR WAS THERE CLEAR AND CONVINCING
EVIDENCE IN THE RECORD THAT THE
CHILDREN WERE HARMED BY THEIR STAY IN
FOSTER CARE.

C. THE TRIAL COURT ERRED IN CONCLUDING
THAT THE SECOND PRONG OF N.J.S.A. 30:4C-
15.1A WAS SATISFIED AT A CLEAR AND
CONVINCING LEVEL OF PROOF WHERE THE
RECORD SHOWED THAT A.T. COULD CEASE
HARMING THE CHILDREN AND IT WAS
REASONABLY FORESEEABLE SHE WOULD BE
ABLE TO PARENT THEM IN THE FUTURE.

D. THE JUDGMENT CANNOT BE AFFIRMED
BECAUSE THE FAMILY PART OMITTED THE

                                                A-4590-18T1
                    10
      REQUIRED       CONSIDERATION       OF
      ALTERNATIVES TO TERMINATION, AND DCPP
      DID NOT PRESENT A RECORD ON WHICH THE
      OMITTED LEGAL CONCLUSION COULD BE
      COMPETENTLY BASED.

      E. THE TRIAL COURT ERRED IN CONCLUDING
      THAT THE FOURTH PRONG OF N.J.S.A. 30:4C-
      15.1A WAS SATISFIED AT A CLEAR AND
      CONVINCING LEVEL OF PROOF WHERE THE
      RECORD DID NOT CONTAIN COMPETENT
      EVIDENCE THAT TERMINATION OF PARENTAL
      RIGHTS WOULD RESULT IN A PERMANENT
      HOME FOR THE BOYS AND THE BONDING
      EVIDENCE WAS MIXED AND AMBIGUOUS.

Avery, Sr., presents the following arguments on appeal:

      POINT I: THE COURT ERRED WHEN IT RELIED
      UPON HEARSAY EVIDENCE TO CONCLUDE THE
      FATHER HARMED HIS CHILDREN.

      POINT II:   THE COURT MISSTATED THE
      EVIDENCE AND ERRED IN FINDING THE
      FATHER DID NOT MAKE EFFORTS TO ADDRESS
      HIS SUBSTANCE USE DISORDER.

      POINT III: THE TRIAL COURT FAILED TO MAKE
      ADEQUATE      FINDINGS     OF  FACT   AND
      CONCLUSIONS OF LAW IN ITS DECISION AS TO
      PRONG THREE OF THE BEST INTEREST TEST
      UNDER N.J.S.A. 30:4C-15.1A(3).

      POINT IV: DCPP FAILED TO DEMONSTRATE BY
      CLEAR AND CONVINCING EVIDENCE THAT
      TERMINATION OF PARENTAL RIGHTS WILL
      NOT DO MORE HARM THAN GOOD AND THE
      COURT FAILED TO ACCURATELY ARTICULATE

                                                          A-4590-18T1
                               11
            PRONG FOUR AND CONSIDER IT IN LIGHT OF
            THE FATHER'S STRONG BOND WITH HIS SON,
            BUT INSTEAD RELIED UPON DCPP'S EXPERT
            WHO DEMONSTRATED A BIAS WHEN SHE
            REFUSED   TO   RELY  UPON    EMPIRICAL
            EVIDENCE.

                          II. Our Standard of Review.

      Our review of a judgment terminating parental rights is limited. N.J. Div.

of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). We must determine

whether the decision is "supported by 'substantial and credible evidence' on the

record." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012)

(quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

      We defer to the family court's factual findings, because that court "has the

superior ability to gauge the credibility of the witnesses . . . and because it

possesses special expertise in matters related to the family." Ibid. Ultimately,

a family court's decision should not be overturned unless it went "so 'wide of the

mark'" that reversal is needed "to correct an injustice." Ibid. (quoting N.J. Div.

of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). The court's

interpretation of the law or its legal conclusions are reviewed de novo. State ex

rel. A.B., 219 N.J. 542, 554-55 (2014); Manalapan Realty, L.P. v. Twp. Comm.

of Manalapan, 140 N.J. 366, 378 (1995).



                                                                         A-4590-18T1
                                       12
      Parents have a constitutionally protected right to the care, custody, and

control of their children. F.M., 211 N.J. at 447. That right, however, is not

absolute. Ibid. At times, a parent's interests 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). "Children must not languish indefinitely in foster care

while a birth parent attempts to correct the conditions that resulted in an out -of-

home placement." N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super.

201, 209 (App. Div. 2007).

      To address such concerns, the Legislature created the best interests test

for determining whether a parent's rights must be terminated. N.J.S.A. 30:4C-

15.1(a) requires that the Division prove all four prongs by clear and convincing

evidence. N.J. Div. of Child Prot. & Permanency v. T.D., 454 N.J. Super. 353,

378 (App. Div. 2018). The four prongs are not independent of one another. Id.

at 379. Rather, they "are interrelated and overlapping" and "designed to identify

and assess what may be necessary to promote and protect the best interests of

the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88

(App. Div. 2006).




                                                                           A-4590-18T1
                                        13
                                 III. Prong One.

      To satisfy the first prong of the best interests test, the Division must prove

by clear and convicting evidence that "the 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).

                             A. Hearsay Evidence.

    Both parents object to the hearsay nature of some of the evidence. "[A]

statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted," is

inadmissible, unless an exception applies. N.J.R.E. 801(c); N.J.R.E. 803.

    Division reports are generally admissible under the N.J.R.E. 803(c)(6)

business record exception to hearsay. N.J. Div. of Child Prot. & Permanency v.

N.T., 445 N.J. Super. 478, 495 (App. Div. 2016). Because "requiring all

[Division] personnel having contact with a particular case to give live testimony

on all the matters within their personal knowledge would cause an intolerable

disruption . . . . it becomes necessary to allow certain evidence to be produced

in a hearsay form." Id. at 496 (alteration in original) (quoting In re Guardianship

of Cope, 106 N.J. Super. 336, 343 (App. Div. 1969)). Therefore, statements to

the report's author "by Division 'staff personnel (or affiliated medical,


                                                                           A-4590-18T1
                                       14
psychiatric, or psychological consultants), [made based on] their own first-hand

knowledge of the case, at a time reasonably contemporaneous with the facts they

relate, and in the usual course of their duties with the' Division" are

admissible. Ibid. (alteration in original) (quoting Cope, 106 N.J. at 343).

    However, "written reports from neighbors, the police or other persons," are

governed by the usual hearsay rules. Ibid. (quoting Cope, 106 N.J. at

344). "[E]ven if a document 'is admissible as a record of regularly conducted

activity,' statements by others reported by the author of the document 'are

"hearsay-within-hearsay," each level of which . . . requires a separate basis for

admission into evidence.'" Id. at 497 (quoting Estate of Hanges v. Metro. Prop.

& Cas. Ins. Co., 202 N.J. 369, 375 n. 1 (2010)).

      Amelia argues that, in rendering its decision under prong one, the court

relied primarily on hearsay in the Division's records. Reports and testimony

from the doctor who conducted the psychological evaluation are permissible

forms of hearsay under the business records exception. Dr. Freedman testified

that Amelia "acknowledge[d] at the time that seven-month-old [Alex] was in the

room with her when [her overdose] occurred."

      Avery, Sr. asserts that the information from his June 2017 arrest contained

in the Division's report was inadmissible hearsay because neither the reporting


                                                                         A-4590-18T1
                                      15
officer testified nor was a police report from the incident admitted into evidence.

Because neither defendant objected to the arrest testimony, Avery, Sr.'s

argument must be reviewed for plain error. R. 2:10-2. He carries the burden of

demonstrating that this error was "of such a nature as to have been clearly

capable of producing an unjust result," and therefore, should not be disregarded

by this court. Ibid. Had an objection been made, the Division could easily have

obtained and introduced the police reports.

      The decision to terminate parental rights focuses on "the effect of harms

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

development." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Avery

Sr.'s repeated failure to comply with his evaluations and rehabilitative programs

was discussed at length by the court. Avery, Sr.'s substance abuse history and

the recommendations of Dr. Cahill and Dr. Brown supported the conclusion that

prong one was satisfied.

                           B. Evidence of Drug Use.

      Amelia argues that the Division did not establish that the children were

harmed by her overdose and their subsequent removal. The Division must

establish under the first prong "that the health, safety, and development of a

child has been or would continue to be endangered if a relationship with the


                                                                          A-4590-18T1
                                       16
parents were allowed to continue." T.D., 454 N.J. Super. at 380. "[A] parent's

inability to provide care is harmful and can endanger the health of a child." Ibid.

The "best interests standard does not concentrate on a single or isolated harm or

past harm as such. 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.

      Drug use during pregnancy constitutes harm to the child "when that drug

use results in the child being born addicted to drugs with the attendant suffering

caused by such addiction." Id. at 349-50. Our Supreme Court has stated that

"the 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

N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 613 (1986)). "A

parent's withdrawal of that solicitude, nurture, and care for an extended period

of time is in itself a harm that endangers the health and development of the

child." Ibid.

    Alex suffered withdrawal symptoms at birth as a result of Amelia using

drugs while pregnant. Amelia admitted during her psychological evaluation

with Dr. Freedman that she used heroin on the night in question and was


                                                                          A-4590-18T1
                                       17
awakened by paramedics.       Amelia classified it as a "suspected overdose"

because Narcan was not used, however, she was found unconscious, pale and

with blue lips. Evidence that she overdosed when caring for her infant son is

supported by substantial credible evidence in the record.

      Amelia's drug use caused the removal of her children. Both parents

continued to use drugs despite the Division's attempts to help.       The court

properly found that the Division proved by clear and convincing evidence that

the children's "safety, health or development has been or will continue to be

endangered by the parental relationship."

                                IV. Prong Two.

      The second prong under N.J.S.A. 30:4C-15.1(a)(2) requires the court to

determine whether "[t]he 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." The court

"is permitted to consider whether the parents would correct their conduct within

the reasonably foreseeable future." T.D., 454 N.J. Super. at 380.

                                  A. Amelia.

      Amelia asserts that the court improperly relied on the fact that she was in

the early stages of recovery and acknowledged that "she still had work to do


                                                                        A-4590-18T1
                                      18
before she could independently parent her children." Amelia notes that she has

not used substances since February 2019 and, pending the Division's inspection,

secured a home for her sons. Amelia argues that the record supports a finding

that she "had progressed in her rehabilitation to the point that she was 'able to

remove the danger' facing her children."

      The record, however, does not demonstrate that she will be able to parent

the children in the foreseeable future. Although Amelia made more progress

than Avery, Sr., she acknowledges that she is not yet able to care for her

children.

                                 B. Avery, Sr.

      Based upon the Division's reports and the expert testimony, overwhelming

evidence was presented to establish Avery, Sr.'s continued substance abuse

would be harmful to the children. Avery, Sr. stresses that he participated in

detox programs prior to the start of the guardianship litigation, between

November and December 2017.

      He tested positive for fentanyl in April 2019. The Division's June 2019

substance abuse evaluation reported that he tested positive for fentanyl on the

following dates: November 20, 23; December 14 and 24, 2018, and April 23,

2019. Avery, Sr. was clearly not able to remediate his drug use. The history of


                                                                         A-4590-18T1
                                      19
failed drug tests and substance abuse treatment programs shows that Amelia and

Avery, Sr. have been unwilling or unable to eliminate the harm facing their

children or to provide a safe home.

                                 V. Prong Three.

      The Division must prove under prong three that "[t]he [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 court

has considered alternatives to termination of parental rights." N.J.S.A. 30:4C-

15.1(a)(3).

      The court discussed on the record its factual findings regarding the

services provided by the Division to Amelia and Avery, Sr., beginning in 2016

with a SPP. The court reviewed the timeline of events that led to Amelia and

Avery, Sr. being referred to substance abuse evaluations, psychological

evaluations, urine screens, supervised visitation, short-term counseling,

substance abuse inpatient treatment programs, short-term residential programs,

detox programs, and hair follicle testing.

      Following the discussion of the services provided to defendants, the court

noted that its findings related to prongs one and two, as well as to "the Division's




                                                                           A-4590-18T1
                                        20
reasonable efforts." The Division made many efforts to rehabilitate the parents

during its three-year involvement with this family.

      The Division assessed alternative placements for the children and ruled

out several relatives, including the maternal aunt, whose family was not

interested in being a caregiver, Lisa, who failed to complete the background

check, as well as Gina and Gail. Gina was ruled out due to her criminal history

and mental health history. Gail was ruled out based on her substance abuse and

the results of psychological evaluations following the removal of the children.

Amelia and Avery, Sr. offered no other alternatives to termination.

                                 VI. Prong Four.

      Prong four of the best interests test, that "[t]ermination of parental rights

will not do more harm than good," N.J.S.A. 30:4C-15.1(a)(4), "serves as a fail-

safe against termination even where the remaining standards have been met."

E.P., 196 N.J. at 108 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191

N.J. 596, 609 (2007)). "The question ultimately is not whether a biological

mother or father is a worthy parent, but whether a child's interests will best be

served by completely terminating the child's relationship with that parent." Ibid.

"Our courts have recognized that a child's relationship with a parent is of such

significance that doubts are to be resolved against its destruction." N.J. Div. of


                                                                          A-4590-18T1
                                       21
Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 264 (App. Div. 2005)

(quoting In Re Guardianship of J.E.D., 217 N.J. Super. 1, 15-16 (App. Div.

1987)).

      "It also is widely understood that a 'child deeply needs association with a

nurturing adult' and that 'permanence in itself is an important part of that

nurture.'" E.P., 196 N.J. at 108. (quoting A.W., 103 N.J. at 610). N.J.S.A.

30:4C-15.1(a)(4) is deemed satisfied "where it is shown that the bond with

[resource] parents is strong and, in comparison, the bond with the natural parent

is not as strong." K.H.O., 161 N.J. at 363.

      The Division "should offer testimony of a 'well-qualified expert who has

had [the] full opportunity to make a comprehensive, objective, and informed

evaluation' of the child's relationship with both the natural parents and the

[resource] parents." M.M., 189 N.J. at 281 (quoting In re Guardianship of J.C.,

129 N.J. 1, 19 (1992)). If contrasting expert opinions are presented, "[t]he court

has a responsibility, albeit difficult, to make sense of the competing views

presented by the experts and to sift the attitudes of all witnesses. Because the

welfare of a child is the central concern, it is important that courts thoroughly

inform themselves of the subject matter." J.C., 129 N.J. at 22.




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      The court discussed in detail the experts' opinions as to the children's

bonds with their biological parents as well as their resource parents. The court

found that the experts agreed that Avery, Jr. has a "strong affectionate bond"

with Avery, Sr. and "a positive bond" with Amelia that is "not quite as strong"

as with Avery, Sr. The experts did not dispute that despite Avery, Sr.'s bond

with his children, he failed to demonstrate his ability to parent. As for Alex, the

experts concluded that he did not have a strong bond with either parent.

      The experts "opined that the [resource] parents have a secure bond with

the children."    The Division records, admissible as previously discussed

pursuant to N.J.R.E. 803(c)(6), reflect that the resource parents wished to adopt

the two boys. The court noted that defendants' expert referred to the resource

parents as "psychological parents," who the court described as "the folks that

the children know will provide for them and keep them safe on a day-to-day

basis." While the court acknowledged that the experts had different theories

about how termination would affect the children, the court found both experts

to be highly qualified, competent and credible.

      The family court has the authority to make fact and credibility findings

and we defer to those findings, unless the decision was unsupported by

substantial and credible evidence. F.M., 211 N.J. at 448. The court focused on


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the children's need for a stable home, their "need to know where they're growing

up." With neither parent capable of parenting the children, and with permanency

desperately needed, termination of parental rights and adoption by the resource

parents was clearly in the children's best interests.

                             VII. Due Process Claim.

      Amelia challenges the court's decision to proceed with closing arguments,

without objection, on the final day of testimony after the court excused

defendants from listening to the remainder of cross-examination due to a

doctor's appointment, and after advising them that closing arguments would be

presented on another day.      She certainly had access to a transcript of the

proceedings and offers no reason why the presentation of closing arguments in

her absence violated her due process rights. Her argument is without sufficient

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

      In this unfortunate family situation, the Division presented substantial

credible evidence to support the family court's finding by clear and convincing

evidence that termination of parental rights was in the best interests of the

children. No "injustice" requires our intervention. See F.M., 211 N.J. at 448.

      Affirmed.




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