                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4651-17T2
                                                                     A-4692-17T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

K.M.R. and C.S.,

          Defendants-Appellants,

and

K.F.,

     Defendant.
______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF K.J.R.,
K.B.R., K.M.R.-S., and K.K.R.-S.,

     Minors.
______________________________

                    Submitted May 6, 2019 – Decided June 17, 2019
            Before Judges Gooden Brown and Rose.

            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Essex County, Docket
            No. FG-07-0042-18.

            Joseph E. Krakora, Public Defender, attorney for
            appellant K.M.R. (Gilbert G. Miller, Designated
            Counsel, on the brief).

            Joseph E. Krakora, Public Defender, attorney for
            appellant C.S. (Steven Edward Miklosey, Designated
            Counsel, on the brief).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jason Wade Rockwell, Assistant Attorney
            General, of counsel; Merav Lichtenstein, Deputy
            Attorney General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minors (Danielle Ruiz, Designated
            Counsel, on the brief).

PER CURIAM

      In these consolidated appeals, defendants K.M.R.1 (the mother) and C.S.

(the father) appeal from the May 29, 2018 judgment of guardianship terminating

their parental rights. The judgment terminated the mother's parental rights to

her two sons, K.J.R. and K.B.R., and her two daughters, K.M.R.-S. and K.K.R.-



1
  Pursuant to Rule 1:38-3(d)(12), we use initials to protect the confidentiality
of the participants in these proceedings.


                                                                        A-4651-17T2
                                       2
S., and terminated the father's parental rights to K.M.R.-S., the only child they

had together.2 Defendants were never married. When the judgment was entered,

K.J.R. was eight years old, K.B.R. was six years old, K.M.R.-S. was three years

old, and K.K.R.-S. was one year old.

      The mother contends that the Division failed to prove all four prongs of

the best interests standard embodied in N.J.S.A. 30:4C-15.1(a) by clear and

convincing evidence. She asserts that the trial court's contrary ruling "was not

supported by substantial and credible evidence in the record and in any event

was so wide of the mark that a mistake must have been made." The father

challenges the Division's proofs for prongs three and four only. He asserts "the

record does not support the legal conclusion that [the Division] . . . undertook

reasonable efforts to provide [him] with . . . visitation[,]" and "[t]he trial court's

decision to suspend [his] visitation indefinitely . . . release[d] [the Division] of

its statutory obligation . . . without due consideration to any alternatives such as


2
   Other than indicating that all her children had different fathers, the mother
refused to disclose the identity of the biological fathers of K.J.R. and K.K.R.-S,
and, despite extensive paternity testing, the Division of Child Protection and
Permanency (Division) was unable to ascertain their identities. Although K.F.,
the biological father of K.B.R., was aware of the litigation, he did not participate
in the guardianship proceedings in the trial court or on appeal. His parental
rights were also terminated by the trial court upon the Division's submission of
an affidavit documenting their unsuccessful efforts to locate or serve him. See
N.J.S.A. 30:4C-17(c).
                                                                              A-4651-17T2
                                          3
therapeutic visitation." He continues that "the trial court erred in holding that

[the Division] sought alternatives to termination of parental rights" when two

relatives he identified "were not fully assessed by the time of the guardianship

trial." The Law Guardian supported termination before the trial court and, on

appeal, joins the Division in urging us to reject defendants' arguments in their

entirety and affirm. Having considered the parties' arguments in light of the

record and applicable legal standards, we affirm.

      N.J.S.A. 30:4C-15.1(a) requires the Division to petition for termination of

parental rights on the grounds of the "best interests of the child" if the following

standards are met:

            (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
            outside the home and the court has considered
            alternatives to termination of parental rights; and

                                                                            A-4651-17T2
                                         4
              (4) Termination of parental rights will not do more
              harm than good.

The four criteria "are not discrete and separate," but rather "relate to and overlap

with one another to provide a comprehensive standard that identifies a child's

best interests." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167

(2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-

07 (2007)).

        On October 11, 2017, the Division filed a verified complaint to terminate

defendants' parental rights and award the Division guardianship of all four

children. We will not recite in detail the circumstances that led to the filing of

the guardianship complaint, which began with the emergency removal of the

children following the October 2, 2016 death of the mother's fifth child, M.M.,

an eight-year-old boy.3       The death was ruled a homicide for which both

defendants were charged and incarcerated, awaiting trial, and remained

incarcerated throughout the guardianship litigation.

        Prior to her son's death, the mother had a long history with the Division

dating back to 2012, involving investigations for referrals alleging substance

abuse, inadequate supervision, neglect, excessive absenteeism from school, and



3
    The child's biological father was not a party to the litigation.
                                                                            A-4651-17T2
                                           5
physical abuse. With one exception, the prior referrals were ruled "unfounded"

or "not established." See N.J.A.C. 3A:10-7.3. However, in 2015, when K.M.R.-

S.'s diagnosis for "failure to thrive" due to improper feeding was substantiated,

K.M.R.-S. was removed but subsequently reunified with the mother after she

completed services, which included undergoing individual psychotherapy,4

anger management counseling, 5 and substance abuse services, as well as

attending parenting classes. 6 Following the October 2, 2016 removal of all four

children, the Division was granted care, custody, and supervision pursuant to


4
     The psychotherapeutic treatment was recommended after the mother
underwent a psychiatric evaluation, which disclosed that she suffered from
"mood d[y]sregulation disorder, unspecified bipolar disorder, unspecified
personality disorder, or another psychotic dimension." The diagnosis was based
on the mother's "problems with anger, impulse control, maladaptive personality
traits, and fixed delusions." After the FN litigation was terminated in August
2016, the mother's therapist indicated in a termination summary that the mother
terminated treatment "prematurely" before "address[ing] the parenting concerns
at the root of the referral."
5
  Although the mother denied any anger management problems, she admitted
using physical discipline on the children in the past.
6
   The father did not appear in the 2015 FN litigation involving his daughter's
failure to thrive, or make himself available for services. In fact, at the time, the
mother denied being in a relationship with him. However, during the Division's
investigation of a July 2016 allegation of physical abuse of M.M. by the mother,
which was subsequently ruled "not established," the father indicated during the
investigation that while he did not reside in the home, he assisted the mother in
caring for all the children.


                                                                            A-4651-17T2
                                         6
N.J.S.A. 9:6-8.21 and 30:4C-12, and the children were placed in resource

homes.

        Judge David B. Katz conducted the three-day guardianship trial on non-

consecutive days from April 16 to May 4, 2018. At the trial, in addition to the

admission into evidence of numerous documentary exhibits, Division

caseworker Mikael7 Williams testified about the Division's extensive history and

involvement with the family. She recounted the Division's efforts to provide

services to defendants, including visitation. She explained that the mother was

not afforded visitation with her sons by court order based on a November 18,

2016 Regional Diagnostic and Treatment Center (RDTC) evaluation

recommending "substantial caution" in facilitating visitation "due to the trauma

that [the boys had] experienced" from "witness[ing] certain events that led to

the death of their brother."     The mother was, however, afforded monthly

supervised visits with her daughters at the Essex County Jail. On the other hand,

although the father had requested visitation with his daughter, visitation was

suspended based on a March 24, 2017 bonding evaluation, recommending

against visitation.




7
    The witness' name appears alternately as Micole in the record.
                                                                         A-4651-17T2
                                        7
      Other than visitation, Williams further testified that defendants

"request[ed] no services or contact by the Division," and refused to undergo the

psychological evaluations offered by the Division in order to determine

appropriate "services to try to better improve [their] case outcomes." However,

while the mother "completed a parenting class and a women empowerment

program" provided by the Essex County Jail, Williams testified that the father

"received [no] services" and spent time in protective custody at the jail.

      Williams also detailed the Division's assessment of placement options for

the children. She testified that the mother's refusal to disclose the identity of

K.J.R.'s and K.K.R.-S.'s biological fathers prevented the Division from

"assess[ing] possible relatives" to "care for the children." However, at the

mother's request, the Division assessed four individuals, S.J., S.C., L.H., and

L.M. S.J., K.F.'s girlfriend, was ruled out because she "resided with [K.B.R.'s

father]," S.C., a maternal cousin, and L.M., a relative of K.F., were ruled out

because there was "insufficient . . . space in [their respective] home[s]," and

L.H., a family friend, was "ruled . . . out on best interests" grounds because she

was friendly with and resided "in the same building as [the mother's mother ,]"

who had "prior substantiations" with the Division as well as "a criminal history."




                                                                             A-4651-17T2
                                        8
      In addition, Williams testified that the father identified his three sisters

for placement of his daughter: D.U., Gl.U., and Ga.U. However, Gl.U. was ruled

out because "she had two . . . active cases" with the Division, D.U. was ruled

out because she failed to attend "a drug treatment program" recommended by

the Division, and Ga.U. "moved to Pennsylvania" and failed to contact Williams

as requested in order for the Division to conduct an assessment. According to

Williams, none of the rule-out determinations were appealed and none of the

individuals requested reconsideration.

      Williams also testified about the children's special needs and the mother's

"resistan[ce]" to the children receiving the medical care needed. Williams

explained that the boys "have an umbilical hernia," vision problems, and were

both "diagnosed with ADHD."         K.M.R.-S. had "a speech delay" and an

overgrowth of her left eye. K.K.R.-S. "was diagnosed with cerebral palsy" and

ischemia, "a rare birth defect[,]" and had a variety of developmental delays.

According to Williams, all the children received individualized therapy, and

K.M.R.-S. underwent eye surgery. K.K.R.-S. also underwent eye surgery as

well as several MRIs because of her extensive medical issues.

      Williams further testified that the children's current caretakers were

providing the children with "good care" and were meeting all their needs ,


                                                                          A-4651-17T2
                                         9
including facilitating regular sibling visits.    Williams confirmed that the

Division's plan for the children was adoption. She explained that while K.M.R.-

S.'s resource parent was committed to adoption, the resource parents of the other

children had not yet made a commitment. 8 In the event the resource parents

decided against adoption, then the Division's plan would be "select home

adoption"9 for the three remaining children. After explaining the process for

"select home adoption," Williams indicated she had no concerns about the

Division's ability to find an adoptive home for the children because "they [were]

still young[,]" had not "had a lot of placements[,]" and were "great kids."

      Division expert Elizabeth Groisser, Ph.D., a psychologist, testified about

the March 24, 2017 bonding evaluation she conducted at the Essex County Jail

between the mother and her two daughters, and between the father and K.M.R.-

S. As a result of those evaluations, Groisser opined there was "no bond"

between K.M.R.-S. and her father, and, based on K.M.R.-S.'s "intense anxiety"


8
   Williams explained that the boys were placed together and have been in the
same resource home since their removal in October 2016. While the girls were
initially placed together, they were separated in October 2017 when they were
removed from the resource home after K.K.R.-S. sustained a fractured tibia.
Thereafter, K.M.R.-S. and K.K.R.-S. were placed in different resource homes.
9
  Select home adoption refers to "a process that includes looking for an adoptive
home in New Jersey and registering the child[ren] on the national adoption
exchange." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 98 (2008).
                                                                          A-4651-17T2
                                      10
during the visit, recommended that visitation be discontinued, whether

therapeutic or not, because of the "psychological harm in terms of the distress

and anxiety" suffered by K.M.R.-S. Regarding the mother, because Groisser

found that the bond between K.M.R.-S. and her mother was "ambivalent," and

that "there was no real bond on the part of [K.K.R.-S.] to her mother[,]" Groisser

recommended that continued visitation should be monitored for signs of

psychological distress.    Groisser also opined, however, that discontinuing

visitation with the mother would not harm the girls.

      We incorporate by reference the extensive factual findings and sound legal

conclusions in Judge Katz' May 29, 2018 oral opinion, rendered following the

guardianship trial, and only recite Judge Katz' key findings supporting his

decision. Preliminarily, "[b]ased on her overall demeanor and the substance of

her testimony," the judge found Williams "credible" and "trustworthy[,]"

explaining that "[s]he testified in a straightforward, direct manner[,]" and "was

not impeached." Likewise, the judge "credit[ed] Dr. Groisser's testimony[,]"

explaining that "[s]he testified in a professional manner," and that her testimony

was "complete, thorough, . . . comprehensive[,]" and unrebutted.

      Next, the judge recounted the mother's extensive history with the

Division, and detailed the children's previously "unaddressed medical


                                                                          A-4651-17T2
                                       11
conditions" and "special needs" that were only detected, diagnosed, and treated

through the Division's efforts. The judge expounded on the October 2, 2016

referral that led to the removal and guardianship litigation. The judge explained

that "[t]he referral was from University Hospital paramedics, who had been

dispatched to [the] family home at 9:30 a.m.," following the mother's report that

her eight-year-old son had a "seizure in the bathtub." "However, when the

paramedics arrived, [the child] was fully clothed and dry[,]" and "in cardiac

arrest." In addition, "[h]e was not breathing, and . . . had no pulse." He "was

pronounced dead at University Hospital" later that morning.

      The judge stated that the "death was reported as suspicious[,]" and

Division "workers were informed that [the child] arrived at the hospital with

several injuries that appeared to be very recent." "The hospital also noted that

[the child] did not have any history of seizures or heart conditions." The judge

noted that the autopsy report revealed

            blunt impact injuries. Contusions of the heart, lung[s],
            and thymus. Contusions of the [mediastinal] soft
            tissue[s and] aorta. Aspirated blood in both lungs.
            Blood[y] effusion in both pleura[l] . . . cavities.
            Contusions of the scalp. Contusions and abrasions of
            the lips. Contusions and abrasion[s] of extremities and
            the buttock. Contusions of the . . . abdominal wall. As
            well as scalding of [the] lower extremities.



                                                                         A-4651-17T2
                                         12
      According to the judge, the Division investigator reported that upon being

informed of her son's demise, the mother's "demeanor" was "distasteful and

unremorseful." She "was more concerned" about being "misinformed" about the

length of time she would be "detained" at the Prosecutor's Office than "the loss

of her son." Although she denied the father was living in her home at the time,

she acknowledged he assisted her in removing her son from "the tub and

dress[ing] him before [the paramedics] arrived, because she was, '[c]oncerned

about him being naked.'" She also "denied knowing anything about most of

[the] bruises and marks, but . . . did acknowledge the bruise on the stomach

[from] earlier that day." Additionally, she "denied ever hitting [her son] with

an object," but acknowledged being "home all morning with her children."

      The judge continued that both K.J.R. and K.B.R. made statements to

investigators and to the RDTC evaluator, implicating defendants in their

brother's death. On October 2, 2016, K.J.R., who was then "a few weeks short

of his seventh birthday," told investigators that the father "punched [his brother]

twice in the stomach," and made his brother "put his head in the water[,]" as a

result of which his brother "pee[d] in the bathtub[,]" "[h]is [brother's] heart was

[not] beating anymore[,]" and his brother "was at his grave." K.B.R., "who was




                                                                           A-4651-17T2
                                       13
ten days shy of his fifth birthday," told investigators on October 2, 2016, that

the father "put [his brother] in the tub and burned his leg."

      "A little over three weeks later," on October 27, 2016, when the boys

underwent psychosocial evaluations at the RDTC, K.J.R. reiterated that the

father "punched [his brother] in the chest," that "[h]is brother . . . was punished

bad[,]" and that the father "was lying." K.J.R. also stated that the mother "told

[him there was] a ghost . . . in the room with [his brother,]" in an apparent

attempt to explain the screams K.J.R. heard coming from his brother. Similarly,

K.B.R. told the RDTC evaluator that his brother was dead because the father

"punched [his brother] in the chest," and "put [him] in the tub." According to

K.B.R., "'[t]he water was hot and [his brother] was crying.'" K.B.R. also stated

that after his brother was placed in the tub, the mother "put [his brother's] head

in the water." K.B.R. said his "[brother's] nose was bleeding" and that his

brother "[d]ied out." K.B.R. "stated that he, too, was scared of ghosts."

      Judge Katz stated that the RDTC evaluator determined that both boys

"displayed signs of trauma and post[-]traumatic stress disorder." As a result, the

evaluator recommended no "contact between [the boys and the father] and that

there be significant caution regarding any contact between [the boys and the




                                                                            A-4651-17T2
                                       14
mother.]" In addition, "[b]oth boys were referred for trauma focused therapy

services," which began in March 2017 and has continued since.

      In discussing the services provided to defendants by the Division, the

judge pointed out that defendants "have both remained incarcerated throughout

this litigation[,]" and initially "requested the Division not contact them, until

further [c]ourt order."      Defendants also "declined to participate in any

psychological evaluation[s]."      A December 8, 2016 order "allow[ed] the

Division to send . . . periodic photos of the children to their respective parents[,]"

and that practice "has continued throughout the litigation." According to the

judge, although defendants were ordered to keep the Division apprised of any

services received at the jail, there was no record or indication that the father "has

participated in any services while being incarcerated." On the other hand, the

mother completed a parenting class.

      Judge Katz explained that defendants' requests for visitation were initially

denied pending receipt of the children's evaluations. Upon receipt of the RDTC

evaluation, on December 8, 2016, the court suspended visitation between the

mother and the boys.       However, the court "granted [the mother] monthly

visitation with [the girls], supervised by both the Division caseworker and a jail

social worker[,]" based on Dr. Groisser's recommendation that any visits "should


                                                                              A-4651-17T2
                                        15
be monthly, and with the Division monitoring for any psychological regression

or distress."    Regarding the father, on May 11, 2017, the court suspended

visitation with K.M.R.-S. based on Dr. Groisser's recommendation that ongoing

visits "only provided [the father] with the opportunity to see his daughter, and

would be detrimental to the child psychologically."

      Crediting Dr. Groisser's unrebutted opinions based on the March 24, 2017

bonding evaluations, the judge determined that there was no bond between the

father and K.M.R.-S. and "continued visits with [the father] could actually cause

the child harm." As to the mother, the judge accepted Dr. Groisser's opinion

that while K.K.R.-S. did not "appear to be in distress, there was no evidence of

an attachment between her and [the mother,]" and the bond between K.M.R.-S.

and the mother was "ambivalent." Thus, relying on Dr. Groisser's opinion, the

judge acknowledged that the girls would not be harmed "if [they] did not see

[the mother]."

      The judge also discussed the Division's efforts to find permanent homes

for the children. He explained that the Division had assessed for placement

several individuals identified by defendants, "all of whom have been ruled out."

The judge further indicated that the children's special needs were currently being

met by the resource parents, with the Division's support.             The judge


                                                                          A-4651-17T2
                                       16
acknowledged that with the exception of K.M.R.-S.'s resource parent, none of

the other resource parents had made commitments to adopt the children.

However, the judge credited Williams' testimony that once the children were

freed for adoption, there were "no concerns about the children being adopted"

through "the process [of] select home adoption," given the children's age,

placement history, and the fact that they were "'great kids.'"

      After reciting his factual findings, the judge applied the appropriate legal

principles and concluded that the Division "satisfied each prong of the best

interest[s] standard by clear and convincing evidence."          First, the judge

determined that the father's actions, which led to the brother's death while the

other children were in the home, and the mother's failure to protect the children

from the father, who, by his own admission, "assisted with the care of the

children," satisfied the first prong. See In re Guardianship of K.L.F., 129 N.J.

32, 43-44 (1992) ("[I]njury to children need not be physical to give rise to State

termination of biological parent-child relationships.       Serious and lasting

emotional or psychological harm to children as the result of the action or

inaction of their biological parents can constitute injury sufficient to authorize

the termination of parental rights.").

      The judge elaborated:


                                                                          A-4651-17T2
                                         17
                  [The father's] abuse of [the brother] occurred in
            the home while all four children were present. The
            boys . . . call him daddy, even though he[] [is] not the
            biological father of them. His actions, in their
            presence, the screaming, the crying, the resulting
            trauma to the children, demonstrate that [the father] has
            endanger[ed] the safety, health, and development of all
            the children, including [K.M.R.-S.], by his actions, on
            October 2, 2016.

                   Similarly, [the mother] . . . has participated, both
            directly and indirectly, in causing the child[ren's]
            safety, health, and development to be endangered.

                   First, she was in the home and failed, at a
            minimum, to intervene to protect the children. Second,
            [K.B.R.] stated that [the mother] put [his brother's]
            head in the water. Third, while the abuse was . . .
            occurring, and [the brother] was screaming in his room,
            [the mother] attempted to justify or explain it by telling
            [K.J.R.] that there was a ghost in [their brother's] room,
            as if the ghost was causing injury to [their brother].

See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 289 (2007) ("A

parent is unfit if he or she is unable or unwilling to prevent harm to the child

irrespective of the source of the harm[,]" and "[c]onsequently, a parent's

association with third-parties may be an appropriate consideration if those

associations harm the child.").

      The judge referred to the autopsy report, admitted into evidence without

objection, detailing the brother's extensive injuries, and indicated that the boys'

statements implicating defendants in the death of their brother provided

                                                                           A-4651-17T2
                                       18
compelling proof to satisfy prong one. Although the children's statements were

admitted without objection, the judge acknowledged that the statements were

hearsay that were not admissible in a guardianship trial under N.J.S.A. 9:6-

8.46(a)(4) pursuant to New Jersey Division of Child Protection and Permanency

v. T.U.B., 450 N.J. Super. 210, 214 (App. Div. 2017). However, according to

the judge, the statements qualified under the excited utterance exception to the

hearsay rule, Rule 803(c)(2), notwithstanding the fact that the statements were

not all contemporaneous with the startling event. N.J.R.E. 803 (c)(2); see State

v. Long, 173 N.J. 138, 159-60 (2002) (holding that "even a somewhat lengthy

delay will not always prevent a statement from being admissible under Rule

803(c)(2)" because the Rule focuses instead "on whether nervous excitement

was generated, whether there was a reasonable proximity in time between the

event and the declarant's subsequent description of it, and whether there was a

lack of opportunity to deliberate or fabricate the circumstances").

      The judge determined        "[i]t [was] clear from the surrounding

circumstances" that the boys were "under the stress of their brother's death" and

"[t]here certainly was no opportunity . . . to fabricate or deliberate" when they

made the "statements on the same day as the tragic death of [their brother]" as

well as "three weeks later to the [RDTC] evaluator[.]" The judge noted that


                                                                         A-4651-17T2
                                      19
during the RDTC evaluation, "[K.J.R.] became withdrawn when speaking about

his brother[,]" "[p]ut his head down on the [evaluator's] desk, . . . had a

significant depressed mood, and avoided questions about [his brother]." K.B.R.

also "became withdrawn" when discussing his brother and "spontaneously

replied, '[his brother] dead'" when "asked who he lived with[.]" Thus, the judge

found that the statements were sufficiently trustworthy to be admitted under

Rule 803(c)(2).

      Turning to prong two, the judge found that "[t]he Division ha[d] shown

clearly and convincingly" that defendants were "unwilling or unable to limit the

harm facing [the children]." According to the judge, defendants "have been

incarcerated throughout the litigation," "have refused to comply with Division

services since the beginning of th[e] litigation[,]" specifically "declining to . . .

participate in psychological evaluations," which as Williams testified, "were for

the purpose[] of determining recommended services."10           Further, while the


10
    We do not deem the judge's reliance on defendants' refusal to undergo
psychological evaluations to determine appropriate services as violating
defendants' Fifth Amendment rights against self-incrimination. In that regard,
we distinguish these circumstances from those in New Jersey Division of Child
Protection and Permanency v. S.K., 456 N.J. Super. 245, 251 (App. Div. 2018),
where we held that a judge "may not draw an adverse inference of culpability
against a defendant who invokes his right against self-incrimination to refuse to
testify at a Title 9 fact-finding hearing." We determined that under those


                                                                             A-4651-17T2
                                        20
mother "participated in parenting classes[,]" the father had not provided any

evidence of his "participation [in] services in the jail, despite [being]

encourage[d to] . . . do so[,]" and despite being "released from protective

custody" "since about August 2017[.]"

      Additionally, neither defendant had "provided any indication that they[]

[were] going to be released from incarceration in the foreseeable future[,]"

"[n]or ha[d] they indicated they would be in any position to parent their children

upon their release." According to the judge, this was of particular concern

because all four children have special needs, leading the judge to conclude "that

delaying permanency conditionally upon [defendants'] . . . unspecified release,

at some point in the future, would only exasperate the significant emotional

trauma they have suffered." See N.J. Div. of Youth & Family Servs. v. L.J.D.,

428 N.J. Super. 451, 483-84 (App. Div. 2012) ("[C]hildren must not languish

indefinitely in foster care while a birth parent attempts to correct the conditions

that resulted in an out-of-home placement[,]" and "[a]ccordingly, 'expeditious,

permanent placement' is favored over 'protracted efforts for reunification'" (third

alteration in original) (first quoting N.J. Div. of Youth & Family Servs. v. S.F.,




circumstances, a "defendant's decision to refuse to testify was constitutionally
protected under the Fifth Amendment . . . and [Rule] 503." Id. at 274.
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                                       21
392 N.J. Super. 201, 210 (App. Div. 2007); and then quoting N.J. Div. of Youth

& Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004))).

      Turning to prong three, the judge determined that the Division's efforts to

provide services to the family dated back to the 2015 substantiated failure to

thrive allegation, and the Division "continued to exert reasonable efforts [to]

provide services to [defendants] while they remain[ed] incarcerated." See N.J.

Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 579, 621 (App. Div.

2007) ("We have recognized 'the difficulty and likely futility of providing

services to a person in custody'" (quoting N.J. Div. of Youth & Family Servs. v.

S.A., 382 N.J. Super. 525, 535-36 (App. Div. 2006))). However, defendants

declined the "psychological evaluations to determine the need for additional

services on May 11, 2017[,]" and, "[a]t the time of the initial filing on October

[4], 2016," requested "that the Division not contact them[,]" other than providing

"periodic photos of the children, and keep[ing] them updated as to events[,]" a

practice the Division "continued throughout the litigation."          See In re

Guardianship of D.M.H., 161 N.J. 365, 393 (1999) ("The diligence of [the

Division's] efforts on behalf of a parent is not measured by their success" but

"must be assessed against the standard of adequacy in light of all the

circumstances of a given case.").


                                                                          A-4651-17T2
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      Specifically addressing visitation, the judge noted that "the Division ha[d]

expended considerable efforts to provide visitation for [defendants,]" including

arranging the RDTC evaluations for the boys and the bonding evaluations for

the girls. As a result of these evaluations, "the [c]ourt determined that visitation

was no[t] appropriate for either of the boys." Further, "while [the father's]

visitation with [K.M.R.-S.] was suspended" based on Dr. Groisser's opinion

"that the visits were harmful to the child[,]" the mother was, in fact, afforded

"monthly supervised visitation." Continuing his analysis of prong three, the

judge discussed the Division's efforts in assessing "resources for the placement

of the children[,]" all of whom were appropriately "ruled out as viable

caregivers." See F.H., 389 N.J. Super. at 621 ("Even if the Division had been

deficient in the services offered . . . , reversal would still not be warranted,

because the best interests of the child controls.").

      Turning to prong four, the judge acknowledged that because this was

predominantly "a select home adoption case[,]" "the question before the [c]ourt

. . . [was] whether the harm suffered by the child[ren] outweigh[ed] the benefit

of . . . having the child[ren] free for . . . adoption." The judge concluded that

"the harm [did] not outweigh the [benefit] of freeing the child[ren]" for adoption

because the Division demonstrated by clear and convincing evidence "that all


                                                                            A-4651-17T2
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four children would greatly benefit from the termination of . . . the biological

parent[s'] rights and the pursuit of permanency through adoption."

      In making this determination, the judge pointed to the "significant special

needs" of the children, all of which were now "being met with the support of the

Division and their respective resource families[,]" as well as the fact that "there[]

[was] no realistic likelihood defendants would be able to safe[l]y and

appropriately care for the children in the foreseeable future" given their

"incarcerat[ion] with no anticipated release dates" and their rejection of

"Division-offered services." Relying on New Jersey Division of Youth and

Family Services v. R.G., 217 N.J. 527, 555 (2014), the judge acknowledged that

"incarceration alone, without particularized evidence [of] how a parent's

incarceration affects each prong, [was] an insufficient basis for terminating

parental rights."   Instead, "[t]he [c]ourt ha[d] to look at the nature of the

underlying crime[] giving rise to the incarceration" insomuch as it was

"relevant" to parental unfitness. According to the judge, "here, the underlying

crimes [were] aggravated manslaughter, and endangering the welfare of a

child[,]" both crimes which "directly bear on parental unfitness."

      The judge noted further that "the relationship" between "the parents and

the child[ren] before they were incarcerated" was another factor "to be


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                                        24
considered[.]" In that regard, based on "Dr. Groisser's unrebutted testimony,"

the judge found that the girls had "very little, if any, relationship wit h the

parents." In fact, K.M.R.-S. would be harmed by contact with the father and

had an "ambivalent" relationship with the mother. As to K.K.R.-S., the judge

stressed "there was no attachment between her and [the mother]." Likewise,

based on the RDTC evaluations, the judge reiterated that contact with defendants

was not in the boys' best interests and would jeopardize their "well-being." The

judge was "also satisfied that the children [would] be adopted" based on

Williams' confidence that the Division would be able to "find forever homes for

the[] children" through select home adoption. See N.J. Div. of Youth & Family

Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996) (explaining that

some termination actions are not predicated upon a comparative bonding

analysis, but rather reflect the child's "need for permanency" and the parent's

"inability to care for [the child] in the foreseeable future").

      Thus, according to the judge, there was "extensive evidence that

terminating defendant[s'] parental rights will not do more harm than good."

"Rather, the good in permanency far outweigh[ed] the harm."          See In re

Guardianship of K.H.O., 161 N.J. 337, 357 (1999) ("In all our guardianship and

adoption cases, the child's need for permanency and stability emerges as a


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                                        25
central factor.").   The judge entered a memorializing order terminating

defendants' parental rights and these appeals followed.

      Our scope of review on appeals from orders terminating parental rights is

limited. In such cases, we will generally uphold the trial court's findings, so

long as they are supported by "adequate, substantial, and credible evidence."

R.G., 217 N.J. at 552. Indeed, we must give substantial deference to the family

court judge's special expertise and opportunity to have observed the witnesses

firsthand and evaluate their credibility. Id. at 552-53. Thus, a termination

decision should only be reversed or altered on appeal if the trial court's findings

are "so wholly unsupportable as to result in a denial of justice." N.J. Div. of

Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting In re

Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). Even where the parents

allege "error in the trial judge's evaluation of the underlying facts and the

implications to be drawn therefrom," deference must be afforded unless the

judge "went so wide of the mark that a mistake must have been made." M.M.,

189 N.J. at 279 (first quoting In re Guardianship of J.T., 269 N.J. Super. 172,

189 (App. Div. 1993); and then quoting C.B. Snyder Realty, Inc. v. BMW of N.

Am. Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)).




                                                                           A-4651-17T2
                                       26
      Guided by these standards, we conclude that Judge Katz' factual findings

are amply supported by the credible evidence in the record, and his legal

conclusions are unassailable. "It is not our place to second-guess or substitute

our judgment for that of the family court, provided that the record contains

substantial and credible evidence to support the decision to terminate parental

rights." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49

(2012). Here, the judge carefully reviewed the evidence presented at trial, made

copious findings as to each prong of N.J.S.A. 30:4C-15.1(a), and concluded that

the Division met, by clear and convincing evidence, all of the legal requirements

for a judgment of guardianship.      The judge's opinion tracks the statutory

requirements of N.J.S.A. 30:4C-15.1(a) and comports with applicable case law.

See, e.g., F.M., 211 N.J. at 447-54; E.P., 196 N.J. at 103-07; K.H.O., 161 N.J.

at 347-63; D.M.H., 161 N.J. at 375-93; N.J. Div. of Youth & Family Servs. v.

A.W., 103 N.J. 591, 604-11 (1986). We thus affirm substantially for the reasons

Judge Katz expressed in his comprehensive and well-reasoned oral opinion.

      Affirmed.




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