                                     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                                NOT FOR PUBLICATION WITHOUT THE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-0170-17T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

         Plaintiff-Appellant/
         Cross-Respondent,

v.

S.R. and M.U.,

     Defendants-Respondents.
_______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF G.R., a Minor,

     Respondent/Cross-Appellant.
_______________________________

                   Argued January 8, 2019 - Decided February 22, 2019

                   Before Judges Accurso, Vernoia and Moynihan.

                   On appeal from Superior Court of New Jersey,
                   Chancery Division, Family Part, Hudson County,
                   Docket No. FG-09-0116-17.
            Sara M. Gregory, Deputy Attorney General, argued the
            cause for appellant/cross-respondent (Gurbir S.
            Grewal, Attorney General, attorney; Jason W.
            Rockwell, Assistant Attorney General, of counsel; Sara
            M. Gregory, on the briefs).

            Olivia Belfatto Crisp, Assistant Deputy Public
            Defender, argued the cause for respondent/cross-
            appellant (Joseph E. Krakora, Public Defender, Law
            Guardian. attorney; Olivia Belfatto Crisp, on the
            briefs).

            John A. Albright, Designated Counsel, argued the cause
            for respondent S.R. (Joseph E. Krakora, Public
            Defender, attorney; John A. Albright, on the brief).

            Mary Potter, Designated Counsel, argued the cause for
            respondent M.U. (Joseph E. Krakora, Public Defender,
            attorney; Mary Potter, on the brief).

PER CURIAM

      The Division of Child Protection and Permanency and the Law Guardian

for four-year-old Gracie1 appeal from an August 23, 2017 order terminating the

guardianship litigation based on the Division's failure to prove all four prongs

of the best interests test, N.J.S.A. 30:4C-15.1(a), at trial. Because we are

convinced by our review of the record that the trial court failed to apply the

correct legal standard in analyzing certain critical questions in this difficult



1
  This is not her real name. We use pseudonyms for the child, her parents and
her paternal relatives to preserve her privacy and theirs.
                                                                       A-0170-17T1
                                       2
matter, frustrating the paramount goal of permanency, we vacate the order and

remand for expedited proceedings to bring this case to conclusion.

Introduction

      Gracie's father, Matt, suffers from debilitating mental illness and very

serious cognitive limitations.     Although the several experts who testified

differed as to his exact diagnosis, all agreed, and the court found, that his

condition "would prevent him from being a feasible parent for his daughter

either independently or as a secondary-parent." The experts, with the exception

of the psychologist who testified for Matt, advised he should not be left alone

with Gracie, but must be within "line-of-sight" of a competent supervisor.

Matt's expert believed Matt could be left alone with Gracie for fifteen or twenty

minutes, perhaps increasing to forty-five minutes, so long as a competent

supervisor was at all times nearby. Matt's expert testified Matt should never be

left at home alone with Gracie.

      Gracie's mother Susan is a former heroin addict who the court found

"abandoned the care of her daughter to others." Susan failed to comply with any

of the services the Division offered, relapsed on heroin while the matter was

pending and had not seen Gracie, then two-and-a-half, in fourteen months before

the first day of trial, the only day she attended.


                                                                        A-0170-17T1
                                         3
      Despite concluding neither Matt nor Susan was capable of functioning as

Gracie's parent either now or in the foreseeable future, that Gracie's health and

development had been harmed by their failures, that "[n]either parent is able to

eliminate the harm by their continued failure to provide a safe and stable home

for their daughter," and that Gracie "has a secure attachment with the foster

parents whom she views as her psychological parents," the judge did not

terminate either Matt's or Susan's parental rights. Instead, the judge found the

Division proved only the first prong of the best interests standard.

      The judge found the Division failed to prove the second prong because

"none of the experts testified that removal from the foster parents would cause

[Gracie] serious and enduring emotional or psychological harm," and there were

"alternatives to termination," namely placing her with Matt's sister Mattie and

her fiancé Henry, who were willing to adopt.

      Regarding the third prong, the judge found the "myriad of reasonable

efforts" the Division made to assist Matt in correcting the circumstances that led

to Gracie's placement "proved unsuccessful due to his cognitive limitations and

psychiatric disorders." She nevertheless found the Division failed to prove the

third prong because it "failed to make reasonable efforts to find alternatives to

termination by assessing [Mattie]" and Henry in February 2017, after the


                                                                         A-0170-17T1
                                        4
Division closed the open case Mattie had with the Division, three months before

the start of trial.

       As to the fourth prong, the judge found the Division had not shown Gracie

"will suffer serious and enduring harm if separated from the foster parents ," but

only that the Division "believe[s] the foster parents would be 'better' parents."

The judge found that although Matt "cannot provide a safe and stable home and

safely parent his daughter, the record is replete with credible evidence that the

paternal relative, specifically [Mattie] and her fiancé, [Henry] are willing and

able to do so." The judge thus concluded it was in Gracie's "best interest to

delay permanency for a period necessary to facilitate a plan of effecting

permanency with the paternal relatives." The judge did not address the third or

fourth prongs as they relate to Susan.

       The judge denied Mattie and Henry's application for custody of Gracie

under an FD docket, finding that Gracie "requires services of the Division." The

denial was "without prejudice until a plan for permanent placement with [Mattie

and Henry] can be implemented."

       At argument before us in January 2019, seventeen months after the court

rendered its decision terminating the guardianship action, counsel advised

Gracie remains in foster care with her resource parents, and the court has


                                                                         A-0170-17T1
                                         5
recently entered an order directing that Mattie's contact with Gracie be

supervised. Although counsel for the Division had previously advised by letter

that Gracie's foster parents remain committed to adopting her, at argument

Matt's counsel asserted the foster parents have made statements suggesting they

do not remain committed to adopting Gracie.

      Against that backdrop, we review the facts and the opinions of the several

experts adduced at trial. Because both are important here, we relate them in

considerable detail.

Matt and Susan

      The Division opened this case in August 2014 after receiving a report that

Matt and Susan, who was then seven months pregnant, were homeless and

sleeping behind a garbage dumpster outside a laundromat in Bayonne, exactly

where the Division worker found them. Both Matt and Susan were known to

the Division because of prior cases involving their other children had with

different partners. None of those children were in their care.

      Several months after Gracie's birth in New York that November, the

Division received a report that Susan had moved back to New Jersey with Gracie

to live with Matt. Finding the couple in a shelter that did not allow children, the

Division suspected Gracie was with Mattie, whom the Division knew because


                                                                          A-0170-17T1
                                        6
of her own open case. When workers went to Mattie's apartment, she initially

lied to them about the baby's whereabouts. She finally admitted she was caring

for Gracie because Matt and Susan "lie" and were not maintaining appropriate

mental health care or housing. The worker and police found Gracie sleeping in

the next room. Gracie was being watched by Matt and Mattie's mother, who had

her own significant history with the Division.

      The worker described the room where the baby was sleeping as completely

cluttered with dirty clothes strewn across the floor, making it difficult to move.

After confirming there were four adults and eight children living in Mattie's

three-bedroom apartment and that Mattie had unresolved "substance abuse and

mental health" issues, the Division effected an emergency removal of Gracie.

      Although Mattie wished to continue caring for Gracie, the worker advised

she could not be considered an appropriate placement so long as she had an open

case with the Division. As Matt's mother had a long history with the Division,

and was living with Mattie, she was also deemed an unsuitable placement. As

no other relatives or friends were willing to assume Gracie's care, the Division

placed her with resource parents, a primarily Spanish-speaking couple with two

sons, ages two and seven, adopted after placement, where she remained through

argument before us.


                                                                         A-0170-17T1
                                        7
      The case proceeded with the Division securing evaluations of Susan, Matt

and Gracie to determine what services were appropriate, providing referrals for

necessary services and arranging for visitation. Gracie was determined to have

global developmental delays and approved for early intervention services in

March 2016, providing her with speech therapy, physical therapy and

occupational therapy.

      At a status hearing in November 2016, the judge asked the Division to

obtain the opinion of Gracie's speech therapist as to whether the foster parents'

bilingual home was hampering Gracie's speech development. The therapist

responded that a greater concern was Gracie's daycare, which she attended

weekdays from 8 a.m. to 5 p.m., where only Spanish was spoken. The speech

therapist thought an English-speaking daycare might aid Gracie to better

understand English and assist in her receptive and expressive communication.

All of Gracie's early intervention sessions were being provided in English. The

Division responded by moving to enroll Gracie in an English-speaking daycare.

      Gracie's pediatrician also referred her to a specialist to consider Fetal

Alcohol Syndrome. Dr. Maria Schwab, a specialist in pediatrics and genetics,

ruled out Fetal Alcohol Syndrome, diagnosing Gracie as suffering from static

encephalopathy, an unchanging brain injury manifesting itself in delays in her


                                                                        A-0170-17T1
                                       8
motor, communication and adaptive skills. Dr. Schwab testified at trial there is

no cure for that condition. Instead, therapies are recommended to address the

delays. Schwab testified she had recently made a more detailed diagnosis of

Gracie's delay in language skills, terming it mixed expressive receptive language

disorder, meaning she had difficulty in making the sounds necessary to form

words, putting words together to express ideas or ask for something, and

difficulty receiving information, processing it and following through.

      Schwab recommended that Gracie continue to receive early intervention

program services and then transition to a preschool program for children with

disabilities. She expressed the view that Gracie was responding to the therapies

and making progress in her communication and motor skills. Neither the parties

nor the court asked Schwab her opinion about whether residing in a bilingual

home with parents for whom Spanish was their first language affected Gracie's

communication skills.

      Matt regularly attended supervised visitation with Gracie from June 2015

through trial in 2017, first for three hour sessions once each week with that time

increasing to two sessions weekly. Following Susan's move to New York in

October 2015, her visits became sporadic, despite the Division's efforts. Susan

last visited Gracie in February 2016, fourteen months before trial. The Division


                                                                         A-0170-17T1
                                        9
thereafter lost contact with her. New York child welfare authorities advised the

Division that Susan gave birth to another child in New York in November 2016,

who was removed from her care upon leaving the hospital.

The Expert Evaluations of Matt and Susan

      Because both Matt and Susan had prior cases with the Division, a few of

the experts evaluating their mental health had the benefit of examining them a

number of times over several years. The Division's psychiatric expert, Larry

Dumont, evaluated Matt four times between December 2013 and April 2017.

Noting Matt's history of psychiatric hospitalizations in adolescence and

diagnosis of bipolar disorder, Dumont considered Matt's psychological

functioning more impaired than typical for bipolar disorder.

      Based on Matt's level of functioning and his failure to improve over the

course of the four years Dumont observed him, despite the extent of services

provided Matt and his remaining compliant with medication, Dumont diagnosed

him as suffering from chronic undifferentiated schizophrenia. Dumont testified

that although Matt's schizophrenia had become well-controlled, with medication

alleviating "first-order" symptoms such as hallucinations, it would be a

permanent impediment to adequate overall functioning.          In a report to the

Division admitted in evidence, Dumont found Matt likeable and well-meaning


                                                                         A-0170-17T1
                                      10
but very immature, describing him "almost like a boy playing at being a father."

He did not recommend reunification.

      Dumont also evaluated Susan on two occasions, the first in January 2016

and again in April 2017, after the first day of trial. On their first meeting, Susan

acknowledged a history of heroin addiction, but claimed she had not used in nine

years. She was at that time living in New York and working full-time. Susan

reported to Dumont that she visited Gracie weekly. He relied on her report to

conclude she was committed to her daughter. He found Susan to be of average

intelligence, slightly anxious and possessing some insight, although her

judgment was "very questionable at times," as when she left a stable setting with

her mother in New York to live homelessly with Matt in New Jersey. Dumont's

diagnostic impression of Susan included post-traumatic stress disorder,

generalized anxiety disorder and borderline intellectual functioning.

      Dumont concluded after his first evaluation that Susan's reunification with

Gracie was reasonable as "the ultimate goal," but only if she completed

parenting training and demonstrated the ability to maintain a stable living

situation. He also recommended "something akin to a mentor or a life coach" to

provide "life guidance" about "life choices regarding paramours, jobs, and living




                                                                           A-0170-17T1
                                        11
situations," plus homemakers "on a regular, ongoing basis." Dumont did not see

any sign of current substance abuse or a need for treatment.

      By the time Dumont testified at trial, his opinion had changed. Susan had

not visited Gracie weekly as she reported. She had only seen her daughter twice

in the four months preceding her first evaluation and would see her only one

more time between that evaluation and the start of trial. She was living with a

new boyfriend, and Dumont found she seemed more committed to her

boyfriend's daughter than to Gracie, to the extent of telling Dumont she missed

the prior day's court session in order to babysit her boyfriend's child.

      Dumont related that Susan had "lots of rationalizations and excuses" for

why she had failed to follow through on services necessary to allow her to regain

custody of Gracie. He also testified Susan "let it slip" that she had relapsed on

heroin in November 2016, as if "well, this is just, you know, the way you deal

with stress." Dumont testified Susan's failure to visit Gracie, her shift to a new

relationship and her recent heroin relapse led him to conclude that Susan's

reunification with Gracie should no longer be the ultimate goal.

      The Division presented a psychologist, Gerard Figurelli, who also twice

evaluated Susan; the first time in June 2014, when she was four months pregnant

with Gracie, and again in July 2015, when Gracie was eight months old.


                                                                           A-0170-17T1
                                       12
Figurelli reported on both occasions that Susan tested as having average

intelligence and adequate judgment, but had a history of not exercising it well.

She reported using heroin, sometimes daily for over a year when she was twenty.

She claimed she stopped after completing an inpatient substance abuse program.

      In her second evaluation, Susan stated she understood Gracie had some

developmental delays, and advised Figurelli her plan was to co-parent Gracie

with Matt. Following the administration of the parenting stress index and

substance abuse screening inventories, Figurelli recommended ongoing testing

for substance abuse and counseling to assist Susan in understanding and learning

to cope with depression. He concluded Susan was not in a position to parent

independently and could not supervise Matt's parenting, in part because of her

lack of understanding of his mental health issues and treatment needs. Susan

failed to attend appointments for updated evaluations, leaving Figurelli unable

to update his findings as to her condition or abilities at the time of trial.

      Figurelli evaluated Matt on four occasions over the course of almost four

years. He testified Matt suffered from Schizoaffective Disorder, Bipolar Type,

making critical that he comply with treatment in order to avoid instability in

mood or overall functioning, either of which could be destabilizing. Figurelli

testified that medication for bipolar disorder may lose its effectiveness over time


                                                                                A-0170-17T1
                                        13
and medication for schizophrenic disorders may facilitate no more than a

"relatively marginal existence" in which the patient struggles to function in a

consistently adequate manner. He advised the court that the nature of Matt's

psychiatric illnesses and the limited benefit he had derived from services and

mental health treatment made it unlikely he would develop better functioning in

the foreseeable future.

      Figurelli testified Matt's mental illness had prevented him from achieving

any personal stability, "a baseline for being able to parent in a stable and safe

manner over time and protect a child from harm." He described Matt's plan ,

formed shortly before trial, of co-parenting Gracie with his sister Mattie as

unrealistic because he could not safely make any independent decisions for

Gracie's care and would require "line-of-sight" supervision at all times.

      The Division also presented the testimony of Chester Sigafoos who

performed a psychological and neuropsychological evaluation of Matt and h is

parenting capacity in February 2017, two months before the start of trial.

Sigafoos reported Matt's intellectual ability as mostly "borderline," describing

him as having serious difficulty in thinking logically and coherently and having

a "vague and simplistic manner" of processing information.




                                                                            A-0170-17T1
                                      14
      Sigafoos diagnosed Matt with numerous mental disorders, including

borderline intellectual functioning, unspecified neurocognitive disorder, bipolar

disorder, unspecified schizophrenia spectrum disorder, post-traumatic stress

disorder arising from childhood physical and psychological abuse, histrionic and

obsessive-compulsive personality disorders and narcissistic personality

features.   Sigafoos opined that Matt's numerous conditions and behavioral

deficiencies impeded effective parenting, and posed a significant risk of harm

to his children if left untreated. He described the conditions as severe, and those

concerning executive functioning and intellectual ability "immutable,"

contributing to an overall poor prognosis. He testified Matt could not eliminate

the potential for having false perceptions of reality that would prevent rational

and informed decision-making, which in turn could create a risk of harm for any

child in his primary care.

      The Law Guardian had Matt evaluated by psychologist Antonio Burr in

November 2016.       Burr found Matt engaging and communicative, albeit

somewhat depressed.      He reported Matt's memory was adequate, but his

responses were short and he had difficulty presenting his life history

chronologically.   Burr found Matt's reasoning and "social comprehension"




                                                                          A-0170-17T1
                                       15
adequate, although his insight was "very limited and superficial," and his

judgment seemed subject to compromise by stress.

      Matt reported five prior psychiatric hospitalizations for suicide attempts

starting at age eleven. Burr did not detect signs of psychosis or a thought

disorder during the evaluation, but he accepted Matt's diagnoses including

bipolar disorder and undifferentiated schizophrenia, "all of which contribute to

debilitate and disorganize his capacity to function effectively."      Based on

assessments he administered, Burr concluded Matt's intelligence was "definitely

below average." His inability to complete the Rorschach testing of perceptive-

associative functioning prevented his responses from being scored, although

Burr "estimated" that functioning to be "extremely limited and poor." Burr

concluded that Matt could address ordinary problems, but had only a marginal

ability to address complex or novel problems, especially those with compound

emotional elements. Matt's responses to the personality and parenting stress

indices were too defensive for Burr to draw reliable inferences.

      Burr testified that Matt had been struggling over the years to achieve some

degree of autonomy and independence, and that his inability to fully care for

himself made it very hard to see him as capable of taking care of someone else.

He explained the emotional instability characteristic of Matt's mental illnesses


                                                                        A-0170-17T1
                                      16
created the risk that his feeling stressed or overwhelmed would result in poor

focus and attunement to the needs of others, which were obvious detriments to

parenting. Burr also concluded that was unlikely to change given Matt's failure

to achieve any significant progress in acquiring more autonomy or higher

functioning over a fairly long period. He opined that if Gracie had to adapt to

such a primary caregiver, it could distort her development and cause substantial

regressions. He thus concluded Matt was unlikely to be an adequate primary

parent for Gracie.

      Matt presented the testimony of a psychiatrist, Howard Gilman, who

conducted an evaluation of Matt just before trial. Gilman diagnosed Matt as

suffering from bipolar disorder, post-traumatic stress disorder and attention

deficit disorder consistent with his history.   He concluded Matt had been

compliant with psychiatric medication management for the preceding three

years and "free of psychiatric symptoms" during that time, even though the

Division had provided him only modest amounts of psychotherapy. He reported

that Matt presented as calm and communicative, with no mood abnormality,

lability or depression. Gilman found Matt's insight and judgment fair, and his

use of language and concrete thinking consistent with borderline intellectual

functioning. Gilman further opined that the "cognitive limitations consistent


                                                                        A-0170-17T1
                                      17
with" borderline intellectual functioning did "not theoretically present a

significant impediment to his parenting abilities."

      Gilman testified that bipolar disorder can be treated, in part with

medication, and that a patient can return to an adequate level of baseline

functioning without symptoms, which could not be said for schizophrenic or

psychotic disorders. He thought Matt's illness was being appropriately treated

and was well controlled, but declined to comment on Matt's parenting capacity

without observing Matt and Gracie together.

      Matt also presented the testimony of a psychologist, Susan Blackwell-

Nehlig, who also evaluated Matt shortly before the start of trial. Blackwell-

Nehlig accepted Matt's prior diagnoses of bipolar disorder, post-traumatic stress

disorder and attention deficit hyperactivity disorders as credible, but believed

his functioning too high to support a diagnosis of schizophrenia. Based on the

tests and inventories she administered, Blackwell-Nehlig concluded Matt's

intelligence and intellectual functioning were in the below-average range, and

he was without any detectable thought disorders.

      Blackwell-Nehlig attributed Matt's "poor decision making and lack of

understanding" to his "cognitive impairments."        She also testified that his

deficits in executive functioning, particularly with memory, could account for


                                                                         A-0170-17T1
                                       18
much of his cognitive impairment. Although testifying that Matt could not serve

as a primary caregiver for Gracie because he would continue to need assistance

with parenting decisions beyond attending to her basic needs, Blackwell-Nehlig

thought he could serve as a secondary caregiver in conjunction with a primary

caregiver. She testified Matt could be unsupervised with Gracie, over time, for

up to thirty or forty-five minutes, as long as he was in a structured environment

and the primary caregiver was available for him to consult as needed. She did

not find Matt's diagnosis of bipolar disorder a risk factor as long as it was

appropriately treated.

Mattie

      At Figurelli's last evaluation of Matt in March 2017, Matt told him his

plan was to co-parent Gracie with his sister Mattie. After the Division closed

Mattie's case in January 2017, she sought to have Gracie placed with her, and

the Division evaluated her for placement. In February, the Division inspected

Mattie's new home, a single family dwelling in Carteret, and her family's

finances, as any placement or adoption through the Division requires

maintenance of a licensed resource home. See N.J.S.A. 30:4C-27.3 to -27.15.

      Shana Harper-Neal, a Division resource worker, testified she conducted

both the safety inspection and the financial inquiry. Harper-Neal visited the


                                                                        A-0170-17T1
                                      19
home on February 17, noting several safety violations but no major flaws. She

testified she also worked with Mattie and Henry to complete a household budget

form, detailing their monthly income and expenditures. Although Mattie and

Henry did not have a mortgage on their home, paying only taxes and insurance,

Harper-Neal testified the family's monthly expenditures totaled $2817 and their

income was only $2060, leaving a monthly shortfall of over $700 per month.

She explained financial capacity was important to the Division because the

monthly $900 per child stipend was to be used for the child and not to bridge

any shortfall in a resource or adoptive family's finances.

      Harper-Neal testified she explained her findings to Mattie and Henry that

their home could not be licensed on account of the gap between their income

and spending. She testified that Mattie told her Henry had recently received a

raise and she intended to earn additional monies by driving for Lyft. Harper-

Neal provided her contact information to Mattie and told her she would hold

open the file so that Mattie could submit updated paystubs as well as any other

proofs she wished the Division to consider.         Mattie did not provide any

additional documents, and the Division sent her a rule-out letter on March 29,

2017. Mattie admitted receipt of the letter, and that she did not act to appeal the

determination.


                                                                          A-0170-17T1
                                       20
         In response to Matt's plan to co-parent with his sister, Mattie was

evaluated by some of the same professionals who conducted other evaluations

in the case: Burr for the Law Guardian, Figurelli for the Division and Blackwell-

Nehlig for Matt. All testified to facts she provided about her background, which

she and Division staffers testified to as well.

         Mattie and Matt were raised by their grandmother and an aunt because

their parents were addicted to heroin. Their father physically abused their

mother as well as both Matt and Mattie. Mattie claimed both her father and

paternal grandfather sexually abused her as well. She dropped out of school

after eighth grade and was pregnant with her first child at seventeen. She

maintained a relationship with the child's father, a man six years older who was

abusive towards her, and they had a second child when Mattie was twenty-one.

He has since been incarcerated and is now subject to community supervision for

life as a sex offender. He is barred from seeing their children.

         Mattie currently lives with her fiancé, Henry, who supports her. They

have been together for thirteen years and have an eleven-year-old daughter.

They also raise Mattie's two older children, sixteen and thirteen at the time of

trial.    Two of the three children are diagnosed with Attention Deficit




                                                                        A-0170-17T1
                                        21
Hyperactivity Disorder.     Henry has two teenaged children from a prior

relationship who often spend time in their home.

      Mattie formerly worked as a certified nurse assistant but left that job in

2008 after injuring her back at work. She had back surgery in 2012, which she

claimed was improperly performed, leaving her in chronic pain.               She

subsequently became anxious and depressed to the point of a suicide attempt,

resulting in a week-long psychiatric hospitalization that same year.         The

Division eventually deemed "established" the hospital's allegation that Mattie

overdosed on oxycodone, Xanax and cocaine while also using marijuana. Mattie

testified that was the only time she ever used cocaine.

      Following that hospitalization, the Division opened its case in 2013 and

Mattie consented to have Henry or her mother, who was also living with her,

supervise her contact with her children. Mattie failed to complete the substance

abuse program the Division required, claiming the counselor was overbearing

and sexually harassed her. In July 2013, she underwent a second back surgery,

which, while helpful, has still left her with chronic pain. She also suffers from

panic attacks, although she claims they have become less frequent.

      In March 2014, Mattie was hospitalized following an overdose of a

prescription muscle relaxant. Her unwillingness to comply with services led the


                                                                        A-0170-17T1
                                      22
Division to file a complaint for care and supervision. Mattie testified she

declined drug screenings for the sole purpose of getting a court hearing in the

hope of finding a path to end the Division's involvement, which she claimed was

dragging on with no end in sight. Supervision of her children was ended by

court order in March 2015.

      In February 2016, the Division referred Mattie to a clinically managed

high-intensity residential substance abuse treatment program at Straight and

Narrow designed for severe misuse of opiates and benzodiazepine. In March, it

referred her to a detox program at Bergen Regional followed by short-term

inpatient treatment. Mattie refused both referrals. The Division then referred

her to another program, which terminated her after a false positive test result for

morphine, and finally to a program she completed successfully in December

2016. The Division closed her case in January 2017. Mattie is maintained on

OxyContin, which she takes every four hours, and morphine for pain as needed.

She takes Xanax for anxiety and panic attacks, Gabapentin for nerve pain and

Imitrex for migraines.

The Expert Evaluations of Mattie

      Figurelli conducted his evaluation of Mattie in March 2017, shortly before

trial. He had conducted a prior evaluation of her the year before in connection


                                                                          A-0170-17T1
                                       23
with her own case.      He found, based on the testing and inventories he

administered, "integrated with other data, . . . that her parental capacity has, at

times, been adversely impacted by her substance abuse and her emotional

issues." He found she presented no risk of maltreatment to a child, but opined

her problems with chronic pain, the demands of raising three other children , two

with special needs, "her history of overdoses when overwhelmed in the past, her

early efforts at recovery from her substance abuse/misuse, and her problems

with situation-based anxiety — that have not, as yet, been adequately treated"

raised concerns about her ability to care for a child of Gracie's age and special

needs.

      Figurelli concluded Mattie would be "unable to assume an independent or

primary caretaking role to [Gracie] without placing herself at risk for an

exacerbation of her as yet not adequately treated psychiatric illness," which he

characterized as an anxiety disorder. Figurelli testified that although Mattie

reported suffering anxiety attacks and regularly took prescribed Xanax to

manage anxiety, she was not in psychotherapy to address that condition and its

likely underlying causes. He was of the view Mattie would be "at risk for 'self-

medicating' substance use; and at risk for her de-stabilization," which would




                                                                          A-0170-17T1
                                       24
significantly adversely impact Gracie.      He testified that having to closely

supervise her brother's contact with Gracie would add further stress.

      Figurelli acknowledged that stress and the risk of relapse did not always

have a direct correlation, and that in some cases learning to handle additional

stress could actually bolster functioning and reduce the risk of relapse . He

noted, however, that treatment with a prescription benzodiazepine and an opiate

analgesic, as prescribed to Mattie, elevates the potential risk for relapse. He

disagreed that adding Gracie and Matt to Mattie's household would not be a

significant source of additional stress. He testified one could "reliably say" that

adding that sort of stress "won't act as a protective factor.       It acts as an

exacerbating factor."

      Burr also conducted his evaluation of Mattie shortly before trial. He noted

Mattie "presents herself as a friendly, engageable and well related person who

characterized herself as emotionally stable," but "[s]he has, however, significant

physical and emotional issues that may actually or potentially impact on her

functioning." Burr characterized Mattie's intellectual functioning as borderline.

He opined that her anxiety and pain, which were episodic but chronic, were

challenges that could leave her physically debilitated and "emotionally drained"




                                                                          A-0170-17T1
                                       25
due to the incomplete relief from her medications, which could certainly affect

her ability to care for a young child.

      Burr noted that such "legitimate child protective concerns" were what

prompted the Division's intervention with Mattie.       Although accepting the

closing of Mattie's case as proof of the Division's satisfaction that "she was not

abusing her medication and the children were not at undue risk," he nevertheless

concluded that Mattie can still "be said to have a systemic and structural

vulnerability in her functioning" given her anxiety and pain issues.

      Burr testified to Mattie's "complicated history" of abuse and neglect at the

hands of her parents, her abusive relationship with an older man in her teens and

her subsequent significant physical challenges and anxieties. He described as

"noble" Mattie's willingness to provide for her parents, who provided her

"terrible parenting," to give a home to her brother, who would be otherwise

homeless, and to try to gain custody of her niece. He thought "all of this

psychologically, clinically, is an attempt to restore something that is good and

generous and proper about her family," but concluded it should not come "at the

expense of [Gracie]."

      Blackwell-Nehlig also conducted her evaluation of Mattie just prior to the

start of trial. Mattie reported being prescribed oxycodone for pain, Xanax for


                                                                         A-0170-17T1
                                         26
anxiety, Imitrex for migraines and Gabapentin for nerve pain. She reported she

no longer felt depressed and was not taking her prescribed depression

medications. Mattie reported her panic attacks were infrequent, and that her

anxiety was situational and mostly about her children's safety. Although testing

revealed Mattie had below-average intellectual functioning with an IQ of 81,

Blackwell-Nehlig expressed surprise at that assessment because Mattie's

"adaptive functioning skills appear higher."

      Blackwell-Nehlig testified she had no concern about Mattie abusing her

prescription medication because Mattie was taking medications as prescribed

and not taking medications she no longer needed. She found it significant the

Division had recently closed its case against Mattie because it suggested the

Division no longer had concerns about her ability to parent her children.

Blackwell-Nehlig reasoned that if Mattie "can adequately and appropriately

parent and provide for her own children, it is anticipated that she could act in a

primary parenting role to her biological niece, [Gracie]."

      Blackwell-Nehlig testified that Mattie having Matt in her home would not

add additional stress for her because "it's her brother, she loves him, and he is

able to assist and help in many ways." Blackwell-Nehlig instead opined that

Matt's presence "would only strengthen the family in terms of their supports."


                                                                         A-0170-17T1
                                       27
      Finally, Blackwell-Nehlig testified that Mattie would have no difficulty

adding a special needs toddler such as Gracie to her household because, far from

being a burden for Mattie, "it fills her soul with joy."          Blackwell-Nehlig

explained that Mattie "has overcome so many obstacles within her life, and she

truly values family, and she does not view anything that she has to do as a mother

or for her family as a stressor." She opined "that gives [Mattie] joy, and . . . acts

as a protective factor or buffer variable against all of the other things that she,

you know, does have difficulty with." Blackwell-Nehlig opined that Mattie was

capable of being Gracie's primary parent without supportive services.

The Bonding Evaluations

      Burr, Figurelli and Blackwell-Nehlig all performed bonding evaluations.

Burr conducted his evaluation of the bond between Matt and Gracie, and Gracie

and her resource parents on the same day in November 2016. Burr reported the

session between Matt and Gracie did not go well. Gracie, who was almost two,

did not want to go to her father and cried inconsolably. While Burr observed

that Matt was calm and affectionate, he seemed "defeated," commenting that

Gracie did not usually behave that way during their weekly visits.              Burr

described Matt as passive and unable to overcome Gracie's rejection of him. He

noted that despite Matt's weekly visitation with Gracie, he had not developed a


                                                                            A-0170-17T1
                                        28
relationship with the child to allow him to respond to her distress.

Acknowledging the affection Matt feels for his daughter, Burr concluded "the

parental skills to relate to the child weren't really there."

      In contrast, Burr found Gracie very comfortable with her resource parents,

playing calmly near her foster mother and sometimes handing her the same toys

that Matt had used without success to get her attention. When the resource father

entered the room, Gracie ran to greet him. Burr noted Gracie was as comfortable

playing with him as with her resource mother.

      Burr testified Gracie had "a very significant bonding relation" to her

resource parents "that satisfies this child's primary, secondary needs." He found

"a very poor form of attachment, that probably is an anxious, avoidant

attachment" between Gracie and Matt, opining that Gracie did not regard him as

a primary parental attachment and did not expect him to satisfy her needs for

nurture and safety. Burr found no adequate basis for Gracie to develop a sense

of permanency with Matt, and did not believe he had the capacity to mitigate the

sense of loss or trauma she was likely to feel from losing her relationship with

her resource mother.

      Burr testified Gracie would not experience harm in the short or near term

if her relationship with her father were severed "because in her awareness, she


                                                                        A-0170-17T1
                                         29
is not going to perceive a change of situation that is substantial enough." As to

the long term, Burr testified "there may be a sense of loss, an emotional space

that is unfilled in the sense that she had biological parents and somehow she was

not raised by those parents. Something happened that she needs to explore and

address."

      Burr explained that "doesn’t necessarily mean that there will be harm if

she has parents who help her, explain and construct a narrative, a life narrative,

that is satisfying to her. So that’s a possibility, . . . and that happens to kind of

all of us. All of us have to construct a narrative about ourselves that we can live

with." Burr was of the view the resource parents would be able to address and

ameliorate whatever sense of loss Gracie might experience from ending her

relationship with Matt.

      Just before the start of trial, Burr conducted a bonding evaluation between

Gracie and Mattie and Henry. He observed that they were openly affectionate

with Gracie, engaging her in play and encouraging her explorations.             Burr

reported that Gracie appeared content and comfortable with them and positively

engaged and responsive to their occasional instructions. When Gracie got tired,

she moved to Henry's lap, where she engaged him in continued play with a toy.




                                                                            A-0170-17T1
                                        30
      Burr opined the quality of Gracie's attentiveness to Mattie and Henry and

of her engagement with them demonstrated "some degree of attachment,"

although not the "ample and secure attachment" Gracie had already achieved by

bonding to her resource parents. He explained Gracie did not relate to Mattie

and Henry as primary parental figures to provide her with nurture and care. He

did, however, see "a good basis for deepening the attachment and bonding at a

future date." Burr further testified that Gracie would suffer no harm if her

relationship with Mattie and Henry were ended.

      When asked at trial about the prospect of delaying permanency with the

resource parents in order to permit the development of an attachment between

Gracie and Matt and his family, Burr began his response by emphasizing that

Gracie is a special needs child. He explained:

                  It is difficult to say how much harm or how much
            loss a child will experience if separated from
            psychological parents or primary parents. But one can
            say that the child will experience loss and some degree
            of harm in the sense that it is likely that the disruptions
            that will occur will be the kinds of challenge that this
            particular child may not have the resources to address.

                   So putting this child in a disruptive parenting
            situation is significantly more complex than putting an
            average child in a situation of disrupted parenting. And
            then you have to consider how much of a bond there is.
            And this child is clearly — has lived since she is six
            months old with these parents, and these parents have

                                                                          A-0170-17T1
                                       31
            devoted themselves to her care and developmental
            advancement.

                   So it is a very complex picture. I know that there
            would be a massive disruption with likely regressions
            in her development.

      Asked directly whether it would be in Gracie's best interests to delay

permanency in order to permit Matt "to address his issues," Burr responded by

saying, "[i]f the implication of that question is that time is going to change the

situation with [Matt], I would not agree with that implication. If the question is

about whether there is a benefit in delaying permanency, I don't see it. I don't

see what the goal would be. I think this child is in a good place."

      When asked whether it would be in Gracie's best interests to delay

permanency in order to place her with Mattie and Henry, Burr said no, "this

child is a special needs child who needs to achieve permanency. And I think it

is fortunate that this child has parents, primary parents, that are addressing those

issues and this child is progressing at this point. I, as a psychologist, would not

want to disrupt that process in any way."          Although acknowledging the

importance of biological relationships, Burr testified "the best provision" for

Gracie's needs

            in terms of the likely outcomes for her development is
            in the relationship that she has formed since she was a
            six-month-old baby to this part of her life where it has

                                                                           A-0170-17T1
                                        32
                been proven in the reality, in the in and out, everyday
                life, that she has had benign parents who have
                contributed to her development, especially from the
                point of view of a globally developmentally delayed
                child. That is not a small task and that is not a small
                concept.

      Burr attempted to testify that the resource parents advised him they valued

a continuing relationship between Gracie and her father's family, with the

resource mother explaining that it would make it easier to explain to Gracie as

they "go along . . . what the situation is." The judge, however, sustained Matt's

objection striking the testimony, stating "[w]e don't have open adoption. I can't

consider it."

      Burr rejected the notion that Gracie's developmental delays would lessen

the impact of separating her from her resource parents, an idea introduced by

Blackwell-Nehlig. Burr testified that the assumption that a child of almost three

years old "is going to forget her primary parents since six months of age because

her brain is not going to mature appropriately is inaccurate and not to say

insensitive." Burr opined that

                it negates everything that we're addressing here in terms
                of attachment, the human capacity, the human
                emotional memory capacity, the question of
                attachment, the question of how a child constructs,
                internalizes an image of who her caretakers have been,
                and how a child . . . constructs an emotional memory of
                the caretakers, principal significant caretakers.

                                                                            A-0170-17T1
                                          33
He concluded that "to suggest that this will be somewhat irrelevant to her and

that the removal will not cause any harm in the sense of how this child is going

to process that is not psychological thinking."

      Figurelli performed bonding evaluations of Gracie with Matt, with Mattie,

Henry and the paternal grandmother, and with the resource parents, all on the

same day shortly before the start of trial. In the session between Gracie and

Matt, Figurelli described Gracie as comfortable, but mostly passive and reactive.

She was receptive to her father's appropriate verbal and physical expressions of

affection, and showed no indications of distress. Gracie engaged in minimal

exploratory behaviors in the company of her father. Figurelli deemed that

significant because it is indicative of the degree of emotional security a child

derives from the presence of a parent or other caretaker. He explained a child

with a secure emotional attachment to a parent or caretaker can use that person's

presence as a secure base, permitting the child to engage in independent,

assertive, inquisitive and exploratory behavior.

      When Matt left the room briefly at Figurelli's request, and again at the end

of the session, Gracie did not display any reaction from being separated from

him. Figurelli opined that the attachment between Gracie and her father was not

a fully and reciprocally bonded relationship, and did not, on Gracie's part,

                                                                         A-0170-17T1
                                      34
display any evidence of emotional security. Asked if Gracie would suffer any

harm from the termination of that relationship, Figurelli responded that she

would not suffer any harm in the short term and in the long term only the

potential harm any child risks from losing a relationship with a biological parent.

         In the session with Mattie, Henry and the paternal grandmother, Gracie,

after some initial hesitation, related in a positive and cheerful manner to all

three.    Gracie was clearly familiar with Mattie and appeared to enjoy her

interaction with her. Figurelli described the interaction between Gracie and her

paternal relatives as spontaneous and free of any fear or distress on Gracie's part.

The independent and assertive behaviors Gracie exhibited were appropriate but

limited. The only temporary departure from the room that upset Gracie was

Mattie's, but Gracie's grandmother was able to refocus her with play. When

Mattie returned, Gracie smiled and reached out to Mattie to pick her up. Several

times one of the three adults asked Gracie a question and received an appropriate

one-word response in English. At the end of the session, after the adults made

affectionate goodbyes, they left without Gracie exhibiting any negative reaction.

         Based on his observations, Figurelli opined there did not "appear to be a

significant reciprocal emotional attachment or bond" between Gracie and her

paternal relatives.    Instead, he referred to Gracie's attachment to them as


                                                                           A-0170-17T1
                                        35
"limited" and characterized by "an overall positive emotional reaction,

comfortability, spontaneity, some familiarity and the absence of fear." Asked

whether Gracie would suffer any harm from the loss of her relationship with

them, Figurelli opined it would be similar to the loss of a relationship with her

father; no short-term harm and only the possibility of a future sense of loss

inherent in any adoption. He thought Gracie would suffer little or no harm in

the short term "because of the nature and quality of her bond to her current

resource parents."

      In his session with the resource parents, Figurelli observed that Gracie

engaged in a noticeably wider range of age-appropriate independent and

exploratory behaviors than with Matt or his family, and she consistently sought

to include the resource parents in her activities. Gracie was more verbally

expressive, speaking single words and short two-word phrases.

      Observing their interactions and how "consistently attuned" and

responsive the resource parents were to Gracie's needs as she communicated

them, Figurelli opined that Gracie derived a sense of emotional security from

the presence of her resource parents, not present in her relations with her father

and his extended family. When Figurelli asked them to leave the room, Gracie

got upset and quickly moved to the door and tried to pull it open. Figurelli was


                                                                         A-0170-17T1
                                       36
unsuccessful in alleviating her distress in their absence. When the resource

parents re-entered the room, Gracie displayed her pleasure at their return and

immediately calmed down.        The resource parents told Figurelli they were

committed to Gracie and wished to adopt her.

      Figurelli noted Gracie referred to the resource father as "papa," which

Figurelli found "developmentally appropriate." He explained that based upon

the nature of the bond he observed between them, "in her world,

psychologically, he's a parent to her and a significant paternal parental authority

figure and caregiver." He described Gracie's attachment to her resource parents

as "a developing, significant, reciprocally bonded relationship."

      Figurelli testified the bonding between a child and a caretaker that occurs

in the first two-and-a-half to three years of the child's life is particularly

significant for developing the capacity to trust as well as the child's sense of

mastery over her environment. He asserted that disrupting a child's bond to a

parent or caretaker puts the child at significant risk of developing any number

of childhood disorders, including mood disregulation disorders, impulse control

problems and difficulty with forming attachments to others. Figurelli opined

that Gracie's "central and primary" attachments were to her resource parents,




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                                       37
and that severing that bond would do "more harm than good in the short term,"

which Mattie, Henry and Gracie's grandmother would be unable to mitigate.

      Figurelli disagreed with Blackwell-Nehlig's assertion that Gracie would

likely forget her resource parents if removed from their care because of her

developmental delays. Relying on a "considerable body" of neuroscientific,

neuropsychological and psychoanalytic literature, he explained that a young,

preverbal child such as Gracie stores memories that, although not encoded in

language, persist into later childhood and adulthood. Figurelli asserted that were

Gracie

            removed from her current caretakers with whom she
            shares a central attachment at this point in time, she will
            experience . . . a significant emotional loss as a result
            of the loss of that relationship. That loss, the impact of
            that loss and its memory will be stored nonverbally, as
            I'm suggesting. It will be encoded nonverbally.

                  The problem with that is that there will be an
            impact. It will be a memory, it's likely to be traumatic
            in nature, and when she does acquire language, that
            memory is the type of memory that will be outside of
            her awareness because she's not able to put it into
            language, but inevitably if it's significant it will impact
            her emotional functioning. It will impact her —
            potentially her physical functioning, and it may very
            well impact her capacity to bond with significant others
            going forward.

                   And the concern is that when a child is exposed
            to the trauma of a removal, the question that we ask is

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                                       38
             can — with services can the impact of that removal be
             mitigated. The problem is with preverbal experiences
             and preverbal memories that the typical methods that
             we utilize to try to address that impact over time and
             mitigate it is therapy or therapeutic interventions, and
             just as yet we don't have available to us consistently
             effective or demonstrated effective therapy methods for
             removing that impact. So the problem is with the issue
             of preverbal memories and preverbal experiences is that
             when there is an impact and it is traumatic it's much
             more likely to be lifelong in nature.


     When asked whether Gracie had the potential to develop a secure and

intact bond with Mattie and Henry if she were placed in their care, Figurelli

responded:

             maybe yes, maybe no. I think the issue becomes risk,
             . . . and I do believe there's likely to be a significant
             emotional impact on [Gracie] if she's removed [from]
             her caretaker, and if that impact is traumatic in nature
             and if that impact is encoded in preverbal memory and
             it's very difficult for her to become aware of that impact
             and for that impact to be mitigated, I would say then
             that the — it's less likely that she would be able to form
             a secure bond with another caretaker, and she may
             struggle with forming attachments and relations during
             the course of her lifetime because that impact, since it's
             not accessible to awareness and less accessible to
             mitigation, is likely to reenact itself compulsively
             during her childhood and later life. That's the risk that
             we run.




                                                                          A-0170-17T1
                                        39
When asked whether permanency could be delayed in order to afford Gracie the

opportunity to see if she could develop a bond with Mattie and Henry, Figurelli

responded:

             I think we're beyond the point where — in this
             particular case I think we're beyond the point where it
             does not do [Gracie] more harm than good for her to be
             removed from her current caretakers, and I stated that
             as a double negative. I hope it's clear what I'm stating.
             I just think we're beyond that point, unfortunately.

      Blackwell-Nehlig conducted bonding evaluations of Gracie with Matt,

with the resource parents, and with Mattie, Henry and the paternal grandmother

shortly before trial. Recounting the session between Gracie and her father,

Blackwell-Nehlig reported that when Matt entered, Gracie "smiled and walked

toward him." She let him pick her up, kiss her, carry her into the office and hold

her on his lap. He engaged her in playing with toys, and she accepted his help.

Matt held Gracie on his lap for half an hour, although she squirmed , tried to get

down and repeatedly pointed to objects around the room. He explained, "[s]he

is trying to get down and get into things." After Blackwell-Nehlig suggested he

put Gracie on the floor with some toys, he did so and assisted her in playing with

the toys.

      Blackwell-Nehlig defined "bonding" as referring to the parent's feelings

for the child, and asserted it occurs in the first hours or days after the child's

                                                                         A-0170-17T1
                                       40
arrival.   "Attachment" is the child's emotional connection to a parent or

caregiver, which develops gradually.         She opined a child is capable of

developing an attachment starting in the second six months of life, but an

attachment can develop at any point "as long as the parent is providing stable,

responsive, and consistent care." Blackwell-Nehlig opined that "[p]arents have

years to build a relationship with their child." She explained, however, that if

an "extended period of time" passes without a stable and supportive parental

relationship, the child may "develop significant difficulty trusting others and

experience limitations in the ability to form relationships."

      Blackwell-Nehlig opined that Gracie had "a positive relationship" with

her father, noting she sought his attention, even though he was not her primary

caregiver at the time. Although noting Matt "had some difficulty anticipating

[Gracie's] developmental needs," evidenced by his keeping her on his lap as she

tried to free herself to explore, "he was trying to ensure her safety," attesting to

"his acquisition of parenting skills." Blackwell-Nehlig saw Matt as bonded to

Gracie "even though he is not the primary psychological parent at this time." As

to Gracie, Blackwell-Nehlig opined she "appear[ed] to have an attachment to

her father," seeming "to recognize him as a stable yet fluid figure in her life."




                                                                           A-0170-17T1
                                        41
      Blackwell-Nehlig recommended that Matt "act as a secondary caregiver

to an adequate primary caregiver because of his bond and attachment with his

daughter." She concluded Gracie "will be able to benefit from a relationship

with her biological father," which "would enable a meaningful connection to her

family and community." Blackwell-Nehlig opined that Matt, "in conjunction

with a primary caretaker from his family," would be able to mitigate any harm

Gracie would experience from removing her from her resource parents, adding

that Gracie's developmental delays make "her memory at this time . . .

questionable" in any event.    She further concluded "[a] permanent, secure

attachment is anticipated to be developed between [Matt] and [Gracie] (with the

assistance of family and recommended services)."

      Blackwell-Nehlig conducted her bonding evaluation of Gracie and her

resource parents through a translator. The resource mother sat at a child-sized

table as Gracie played with blocks, with her resource father sitting nearby. As

Gracie put blocks on the table, the resource mother assisted, counting the blocks

and identifying colors in Spanish. Gracie was responsive, trying to verbalize

and repeat what her resource mother was saying. Gracie moved around the

room, taking a stuffed cat from Blackwell-Nehlig and walking back to give it to

her resource mother. The resource mother thanked her and spoke to the cat in


                                                                        A-0170-17T1
                                      42
Spanish to Gracie's amusement. Gracie then took the cat to show her resource

father and returned to the resource mother for a hug. Gracie followed her

instructions to return the blocks to their box, as the resource mother counted

each one in Spanish. After the blocks were back in their box, Gracie took some

out and placed them on a rolling caddy, which she pulled over to her resource

father.

      Blackwell-Nehlig opined the resource mother understood Gracie's

developmental delays, reporting the therapies were assisting Gracie with her

walking and speech.     The resource mother also reported that Gracie was

attending a bilingual daycare program, noting she spoke to Gracie in Spanish

and Gracie responded in English. Blackwell-Nehlig opined that Gracie had a

positive relationship with the resource parents and a stable and secure

attachment to them, which she found unsurprising as they were providing for

her "daily needs and acting as primary psychological parents."

      Blackwell-Nehlig opined that "[p]ermanency and stability are critical to

[Gracie] at this time, and although there is a stable and secure attachment

between [Gracie] and her resource parents, there is also an intact, fluid

attachment between [Gracie] and her biological family." She concluded the

same "stable, secure attachment that currently exists between" Gracie and her


                                                                      A-0170-17T1
                                     43
resource parents "could also be cultivated by [Matt's] family if provided the

opportunity" and doing so "would facilitate a continued, enduring relationship

between [Gracie], her father, and her biological family."

      Blackwell-Nehlig opined that:

            [f]urthermore, since memory is contingent upon
            maturation of the brain and specific experiences, and
            [Gracie] has developmental delays, her memory at this
            time is questionable. Thus, if she were removed from
            the [resource] family, she would likely experience some
            transitional difficulty as she adjusted to a new
            environment and primary psychological parents.
            However, as long as she had the opportunity to develop
            a secure, attachment, this harm could be mitigated, and
            in time, she would likely have little or no recall of her
            resource parents. That being said, it also appears that
            [the resource parents] would be able to mitigate any
            harm [Gracie] would undergo if she were no longer able
            to visit with her father and his biological family.
            Nevertheless, severing ties between [Gracie] and her
            father would undermine her sense of identity in terms
            of her relationship with her biological family.

      Blackwell-Nehlig conducted her bonding evaluation of Gracie and Mattie,

Henry and the paternal grandmother shortly after her other two bonding

evaluations. Henry came from work and joined the session about halfway

through. Mattie directed Gracie in a variety of different play activities, engaging

her with a puzzle, a drawing tablet and bubbles. Both Mattie and her mother,

Gracie's grandmother, praised Gracie when she picked up the correct piece of


                                                                          A-0170-17T1
                                       44
the puzzle and redirected her when she tried to walk away or touch something

she should not.

      Blackwell-Nehlig opined that Gracie had a "positive relationship

attachment" to Mattie because the two "remained in close proximity to one

another and [Gracie] appeared to feel secure."       Mattie appeared aware of

Gracie's speech delays and spoke often to the child. Blackwell-Nehlig likewise

found Gracie had "a positive relationship" with Henry, interacting similarly with

him, even though he participated in Gracie's weekly visits only by video

conference. She found Gracie had an "adequate bond" with her grandmother,

noting Gracie did not object when her grandmother picked her up and smiled

when she showed Gracie a stuffed toy and touched her face.

      Blackwell-Nehlig opined there was "an intact, fluid attachment between

[Gracie] and her biological family" and that Gracie had "the potential" to

develop a permanent, secure attachment with Mattie and Henry if they were

afforded the opportunity to act as her primary caregivers. She further opined

they would be able to mitigate any harm Gracie would suffer from severing her

relationship with her resource parents, which Blackwell-Nehlig expected would

be minimal because of the effect of Gracie's developmental delays on her

memory.


                                                                        A-0170-17T1
                                      45
      At trial, Blackwell-Nehlig testified she worked with emotionally disturbed

children, some of whom were adoptees. She asserted adoptees "often feel

rejected by their . . . biological parents," and, as they get older, "may have

difficulty with trust or even their own self-concept." Asked what long-term

harm Gracie would experience if Matt's parental rights were terminated "and she

were to cease having contact with him," Blackwell-Nehlig replied that Gracie

"would not have the benefit of — you know, of being a [Matt's family name]

and enjoying that identity and understanding that within, you know, her

community." She further expressed concern that Gracie could suffer "implicit

trauma," which she described as the emotional or behavioral symptoms that arise

in older adoptees from the sensory-type recall of being part of their birth family

but without the ability to recall anything about their adoption or their family of

origin.

      Asked about the quality of the attachment between Gracie and her father

and his family, Blackwell-Nehlig explained she referred to it as "fluid," meaning

not secure, "because her relatives at this time are not her primary psychological

parents and they're not — [Gracie] is not in their physical, you know, custody.

So it is fluid because it's open, it goes back and forth. You know, she doesn't

see them all the time, but when she does there is an established attachment or


                                                                         A-0170-17T1
                                       46
bond."   Blackwell-Nehlig testified that she "believe[d] if [Gracie] had the

opportunity to be placed in their care, that that fluid attachment would become

secure and permanent." Asked about the harm Gracie would suffer from the

disruption of the relationship with her resource parents, Blackwell-Nehlig

opined Gracie would suffer "transitional stress, distress. It would be, you know,

uncomfortable for her," but would be "something . . . she could overcome"

because her biological family "would be able to provide her with consistent care

in which she would be able to trust that her needs would be met, and then also

solicit that care when needed."

      Asked on cross-examination whether her testimony about Gracie's

developmental delays rendering it unlikely she would recall her resource parents

"cuts both ways," meaning Gracie would likely not remember her father or his

family, whom she saw less, Blackwell-Nehlig admitted it would. She added,

however, that "children aren't often talking about or asking, you know, why am

I not living with my foster parents."

      Regarding her testimony that Gracie would suffer harm if she were no

longer permitted to see Henry, who was not physically present for visits with

the child, the Law Guardian asked, "is it really plausible that a two-year-old

would suffer psychological harm by not seeing an individual that she knows


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                                        47
from a video app?" Blackwell-Nehlig responded that "[t]here really seemed to

be a recognition and an attachment" between the two and "in terms of [Henry]

individually, you know, I'm really not sure, but I really look at the family as a

unit . . . and so in that regard I do think that there would be, you know, short-

term damage."

      Pressed further about whether she believed a child attending daycare daily

"would go through some serious emotional problems not seeing the teacher

anymore, seeing the amount of time she would spend with a teacher and at

daycare," Blackwell-Nehlig testified a child in that situation would not

experience any harm. Asked why not, she responded, "it's not her family

member." Asked whether Gracie at her age grasped the concept of Henry as a

family member or "ha[d] the concept that she's a part of that family," Blackwell-

Nehlig responded, "[n]ot at her age, but it is her biological family, and I think

she has awareness of her father, and certainly of her aunt. So I think she has a

two-year old's concept of family." Asked if Gracie had "a concept of the

resource parents being her family or not her own family," Blackwell-Nehlig

answered affirmatively, stating "I think because they provide primary care that,

yes, she would see them as family, also, in that way."




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The Parties' Arguments

      After hearing that testimony, the judge, as noted, found the Division

carried its burden only as to the first prong, that Gracie's health or development

has been or will continue to be endangered by the parental relationship. The

Division and the Law Guardian argue the judge incorrectly applied the law in

analyzing prongs two through four, failed to make requisite factual findings as

to Susan, and incorrectly shifted the focus from a best interests determination as

to Matt's and Susan's parental fitness to whether the Division had proved by

clear and convincing evidence that terminating the relationship between Gracie

and her paternal relatives would not do more harm than good, in effect extending

Matt's parental rights to his sister Mattie.    The Division argues the court

conflated the placement decision with the determination of parental fitness and,

in doing so, incorrectly assigned it a clear and convincing burden to show it was

in Gracie's best interests to remain in her foster home, as opposed to requiring

Mattie to show that placing Gracie with her would be better for Gracie than

remaining in her resource home.

      The Division also contends the court was without authority to review its

decision to "rule out" Mattie "for cause" in March 2017 after the Division closed

her case. The Law Guardian further argues the court ignored that Gracie is


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                                       49
securely bonded to her resource parents, disregarded Gracie's overarching need

for permanency and exercised a presumption in favor of keeping Gracie with her

father's relatives, whom the Division had ruled out, contrary to the clear policy

and laws of this State.

      Matt and Susan argue the trial court's finding that termination of their

parental rights was not in Gracie's best interests under prongs two, three and

four of the statutory test "is entitled to extraordinary deference on appeal, " is

well-supported and should be affirmed.

      Matt further argues because a termination of parental rights trial is

different from a best interests hearing, the trial court correctly required the

Division "to prove by clear and convincing evidence that severing family ties is

in [Gracie's] best interest."

      Susan contends the "court did not commit plain error in making a 'de facto

best interests ruling' — it simply found [the Division] failed to prove that

termination of parental rights was clearly and convincingly in the best interests

of [Gracie]" under prongs two through four of the statutory test. Susan further

argues "the parents were sufficiently 'separately analyzed' and New Jersey has a

policy against the termination of one parent's parental rights."




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                                       50
Our Analysis

      Our standard of review is well established.            We ordinarily accord

deference to the Family Part based on its special jurisdiction and expertise.

Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We defer to the court's factual

findings if supported by adequate, substantial and credible evidence in the

record. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014).

The scope of our review, however, is expanded "where the focus of the dispute

is . . . alleged error in the trial judge's evaluation of the underlying facts and the

implications to be drawn therefrom." Ibid. (quoting In re Guardianship of J.T.,

269 N.J. Super. 172, 188-89 (App. Div. 1993)). Our review of questions of law

is, of course, de novo.      Nicholas v. Mynster, 213 N.J. 463, 478 (2013);

Manalapan Realty, LP v. Twp. Comm. of analapan, 140 N.J. 366, 378 (1995).

      We begin our analysis by noting that this was a difficult case, largely

because Mattie emerged as a possible alternative to termination only ninety days

before the start of trial after the Division closed her case, which had been open

for over three years. The case was further complicated when the plan Matt

presented at trial, and the one the Division and the Law Guardian responded to,

to co-parent Gracie with his sister Mattie, was rejected by all the experts,

including his own, as not feasible.


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                                         51
      That left the court to decide whether it was in the best interests of Gracie,

then almost three years old and already in foster care for over two years, to

forego the promise of permanency with the resource couple she viewed as her

psychological parents in order to explore the possibility of permanency with

Matt's sister, thereby keeping alive a family connection. Although we are

mindful that a decision that the Division did not prove its case is entitled to

enhanced deference because the Division is always free to file a new action

seeking to terminate the parents' rights, R.G., 217 N.J. at 553-54, the analytical

errors here, and the intolerably long delay in providing Gracie the permanency

she deserves, compel vacating the decision and remanding for further expedited

proceedings.

      "Parental rights, though fundamentally important, are not absolute." In re

Guardianship of K.H.O., 161 N.J. 337, 347 (1999). A parent's constitutional

right to raise his or her child is tempered by the State's parens patriae obligation

to protect that child's welfare. Ibid. How a court balances those two conflicting

ideas is by faithfully applying the statutory best interests of the child standard

to the evidence presented at a guardianship trial. Ibid. Termination of a parent's

rights to his or her child may be ordered only upon the State's clear and




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                                        52
convincing proof of each of the following four prongs of the best interests

standard:

            (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 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; and

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

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

      The four prongs of the best interests standard "are not discrete and

separate; they relate to and overlap with one another to provide a comprehensive

standard that identifies a child's best interests." N.J. Div. of Child Prot. &

Permanency v. R.L.M., ___ N.J. ___, ___ (2018) (slip op. at 23) (quoting

K.H.O., 161 N.J. at 348). As the Supreme Court has often reiterated, "[t]he


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                                        53
considerations involved in determinations of parental fitness are 'extremely fact

sensitive' and require particularized evidence that address the specific

circumstances in the given case." K.H.O., 161 N.J. at 348.

      The parties do not dispute the trial court's finding that the State carried its

burden on the first prong. Based on the testimony of the experts at trial, the

judge concluded they were in agreement that Matt "has cognitive deficits and

suffers from a diagnosable mental illness that preclude him from independently

parenting his daughter. No additional services will alter this fact. They all agree

that [Matt] cannot act as the primary parent due to his mental and cognitive

deficits." As for Susan, the judge found she had "unresolved substance abuse

addiction and has not maintained contact with her daughter."

      Considering the first prong of the best interests standard, which the judge

characterized as "[w]hether the child's health and development have been or will

be seriously impaired by the parental relationship," the judge found it

            clear that [Gracie] has suffered harm because she spent
            almost her entire life in foster care. [Matt] through no
            fault of his own is not able to provide a safe and stable
            home for his child now or in the foreseeable future due
            to his cognitive limitations and mental illness. [Susan]
            has not visited her daughter in over a year. She has not
            complied with any services offered to her including
            transportation to visit and attend expert evaluations.



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Based on those findings, the judge concluded the Division "has proven this

prong by clear and convincing evidence as to both defendants."

      Turning to the second prong, whether "the parent is unwilling or unable

to eliminate the harm or . . . provide a safe and stable home for the child and the

delay of permanent placement will add to the harm," N.J.S.A. 30:4C-15.1(a)(2),

the judge looked to In the Matter of Guardianship of D.M.H., 161 N.J. 365, 379

(1999), for guidance. There, the Court explained that "[w]hile the second prong

more directly focuses on conduct that equates with parental unfitness, the two

components of the harm requirement, N.J.S.A. 30:4C-15.1(a)(1) and (2) are

related to one another, and evidence that supports one informs and may support

the other as part of the comprehensive basis for determining the best interests of

the child." Ibid. The judge further quoted from New Jersey Division of Youth

and Family Services v. A.W., 103 N.J. 591, 607 (1986), where the Court

explained that a court analyzing the second prong "should only determine

whether it is reasonably foreseeable that the parents can cease to inflict harm

upon the children entrusted to their care. No more and no less is required of

them than that they will not place their children in substantial jeopardy to

physical or mental health."




                                                                          A-0170-17T1
                                       55
         Although the judge concluded that "[n]either parent is able to eliminate

the harm by their continued failure to provide a safe and stable home for their

daughter," she nevertheless concluded the Division failed to prove the second

prong by clear and convincing evidence by focusing on "whether separating the

child from his foster parents will cause serious and enduring emotional or

psychological harm to the child."        The judge considered the voluminous

testimony of the experts as to their bonding evaluations and concluded that

because "none of the experts testified that removal from the foster parents would

cause [Gracie] serious and enduring emotional or psychological harm," the

Division failed to carry its burden on the second prong. That finding was clear

error.

         As the authorities quoted by the trial judge make abundantly clear, the

focus on the second prong is on the parents and their ability and willingness to

eliminate the harm inflicted on their child.       The court found Susan had

abandoned Gracie and that Matt, because of his "cognitive limitations and

mental illness," cannot independently parent her and that "[n]o additional

services will alter this fact." Those factual findings, that Matt is incapable of

caring for Gracie and Susan is unwilling to do so, lead ineluctably to the legal

conclusion that the Division carried its burden on the second prong. The judge


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                                        56
listened to the testimony and concluded, in essence, there was no "realistic

likelihood that the parents would ever be capable of caring" for Gracie. A.W.,

103 N.J. at 614. The Division was not required to prove anything more. See id.

at 607 (explaining a court weighing the second prong "should only determine

whether it is reasonably foreseeable that the parents can cease to inflict harm

upon the children entrusted to their care").

      The statutory language the trial judge focused on in N.J.S.A. 30:4C-

15.1(a)(2), that "separating the child from his resource family parents would

cause serious and enduring emotional or psychological harm to the child," is not

the test of the second prong. As the statute makes clear beyond any doubt, that

the child may suffer emotional or psychological harm if separated from the

resource parents is simply among the harms the court may consider in

determining 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. " N.J.S.A.

30:4C-15.1(a)(2). The statute says so clearly: "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." N.J.S.A. 30:4C-

15.1(a)(2) (emphasis added).


                                                                        A-0170-17T1
                                       57
      The focus of the second prong is properly on the parents and their ability

and willingness to abate the harm requiring the out-of-home placement. See

N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209-10 (App.

Div. 2007); N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235,

263 (App. Div. 2005).     The statute's reference to the delay in permanent

placement speaks to the time a court can wait for a parent to resume care and

custody. See N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76,

111 (App. Div. 2004). In other words, "whether the parent can cease causing

the child harm before any delay in permanent placement becomes a harm in and

of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434

(App. Div. 2001).

      Because the trial court concluded there was nothing in the record to

suggest additional time would permit either Matt or Susan to resume their

parental responsibilities, there was no need for the court to have considered

whether removing Gracie from her resource parents would itself constitute a

sufficient harm to satisfy the Division's burden on the second prong.

Accordingly, it was error for the court to assign the Division the burden of

proving that separating Gracie from her resource parents would cause her serious

and enduring emotional or psychological harm in its proof of the second prong.


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                                      58
      The review of the expert testimony the court undertook in the context of

the second prong, particularly the bonding evaluations, is one reserved for the

fourth prong. See K.H.O., 161 N.J. at 355. We agree with the Division and the

Law Guardian that the court's error in analyzing the proofs on the second prong

shifted the focus away from Matt's and Susan's ability to resume care of Gracie

to whether Mattie would be an appropriate permanent placement for her, thereby

injecting Mattie into an analysis where she did not belong. Although we cannot

say whether that effectively extended Matt's parental rights to Mattie as the

Division alleges, we are confident the error infected the whole of the court's best

interests analysis under the statute.

      We also agree with the Division and the Law Guardian that the court erred

in its analysis of the third prong, whether the Division made "reasonable efforts

to provide services to help the parent correct the circumstance which led t o the

child's placement" and whether there are "alternatives to termination of parental

rights." N.J.S.A. 30:4C-15.1(a)(3).

      The court found, and no party disputes, that the Division undertook "a

myriad of reasonable efforts" to assist Matt to correct the circumstances leading

to Gracie's placement, all to no avail. Although the court did not make any

factual findings with respect to Susan in analyzing the third prong, which is in


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                                        59
itself reversible error, see N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.

261, 288 (2007) ("Parental rights are individual in nature and due process

requires that fitness be evaluated on an individual basis."), it noted elsewhere in

its opinion that Susan failed to visit Gracie, despite being offered bus or train

passes, reimbursement for her travel and even having Gracie transported to New

York where Susan was living, and found she had "not complied with any

recommended services."

      The finding the Division and the Law Guardian challenge on the third

prong is the court's finding that "the Division failed to make reasonable efforts

to find alternatives to termination by assessing [Mattie] and her fiancé, [Henry],

after the Division closed her case" in January 2017. We agree with them that

there is no support in the record for that finding. Instead, the testimony is

uncontroverted that the Division did assess Mattie and Henry in February 2017

after the Division closed Mattie's case. After reviewing their monthly finances,

the Division determined a monthly shortfall in their budget prevented licensure

of their home under the Resource Family Parent Licensing Act, N.J.S.A. 30:4C-

27.3 to -27.15. It accordingly sent Mattie a rule-out letter "for cause" on March

29, 2017, which Mattie did not appeal.




                                                                          A-0170-17T1
                                       60
      Although we acknowledge the Division and the Law Guardian are correct

that Mattie's recourse to that rule-out letter was an administrative appeal

pursuant to N.J.S.A. 30:4C-12.1 and N.J.A.C. 10:120A-3.1(b), see N.J. Div. of

Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 83 (App. Div. 2013), and the

Division had no obligation to reevaluate her,2 N.J.S.A. 30:4C-12.1(b), the law

is equally clear that the trial judge has the statutory obligation to consider

alternatives to termination as part of its analysis under the third prong of the best

interests standard, N.J.S.A. 30:4C-15.1(a)(3); N.J. Div. of Youth & Family

Servs. v. H.R., 431 N.J. Super. 212, 226 (App. Div. 2013).

      Accordingly, the court could have appropriately considered whether

Mattie and Henry were a suitable alternative to the termination of Matt's parental

rights, notwithstanding that the Division concluded to the contrary. Indeed, the

heart of this case, although raised only very shortly before trial, was whether

Mattie and Henry were a suitable placement alternative for Gracie. The court

erred, however, when it criticized the Division (and the Law Guardian) for

having "tried to make this case about [Mattie] and her addiction to pain

medication because of a botched surgery" when "the only reason the child was


2
  Although the Division had no obligation to reevaluate Mattie after ruling her
out "for cause" in March 2017, we do not condone the Division's failure to
follow the court's order that it do so mid-trial.
                                                                            A-0170-17T1
                                        61
not placed with [Mattie] and [Henry]" was "an inadequate assessment of the

family finances."

      First, there is no basis in the record for the court to have concluded the

Division made an inadequate assessment of Mattie and Henry's finances in

February 2017. The facts were uncontroverted that Division resource worker

Shana Harper-Neal examined their finances and reviewed her findings with

Mattie and Henry, explaining the shortfall. Harper-Neal told Mattie the Division

would hold open the file to allow Mattie to submit updated paystubs as well as

any other proofs she wished the Division to consider. Mattie did not provide

any additional information, prompting the Division's rule-out letter the

following month.

      Second, that rule-out was "for cause" based on Mattie and Henry's

inability to meet licensing standards. The issue at trial was whether it was in

Gracie's best interests to be placed with Mattie as an alternative to termination.

The Division never had to consider whether it was in Gracie's best interests to

place her with Mattie in February 2017, because her inability to be licensed

prevented the Division from doing so.         See N.J. Div. of Child Prot. &

Permanency v. K.N., 435 N.J. Super. 16, 37 (App. Div. 2014). Thus it was

inaccurate for the court to say that the only reason Gracie was not placed with


                                                                         A-0170-17T1
                                       62
Mattie and Henry was because of their finances. The Division's March 2017

rule out certainly did not preclude the Division from joining the Law Guardian

at trial in opposing Gracie's placement with Mattie as not in Gracie's best

interests in light of Mattie's history, including misuse of prescription drugs and

a suicide attempt, as well as the burden of supervising her brother along with

her own children in assuming the care of a toddler with special needs.

      That brings us to the court's analysis of the fourth prong, whether

termination would not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). As

the Court stated in A.W., "[w]hile this may appear to be nothing more than a

tautological statement, what the concept conveys is that termination of parental

rights will result, among other things, in a permanent resolution of the child's

status." 103 N.J. at 610. As it explained in K.H.O., the question to be addressed

under the fourth prong "is whether, after considering and balancing the two

relationships," that is the child and her biological parents and the child and her

resource parents, "the child will suffer a greater harm from the termination of

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

relationship with her foster parents." 161 N.J. at 355. "[G]iven the need for

continuity, the child's sense of time, and the limits of our ability to make long -




                                                                          A-0170-17T1
                                       63
term predictions, [the best interests of the child] are more realistically expressed

as the least harmful or least detrimental alternative." A.W., 103 N.J. at 616.

      As noted previously, the four prongs "are not discrete and separate; they

relate to and overlap with one another to provide a comprehensive standard that

identifies a child's best interests." K.H.O., 161 N.J. at 348. The Court has

acknowledged that sometimes in considering whether termination would not do

more harm than good, the trial court will be weighing "whether placement with

an extended-family member can give the child both continuing nurture and

roots," A.W., 103 N.J. at 611, in essence considering the third and fourth prongs

in tandem.

      Here, the court never considered whether terminating Matt and Susan's

rights would not do more harm than good. It short-circuited that inquiry by

finding that separating Gracie from her resource parents would not cause her

serious and enduring emotional or psychological harm in its analysis of the

second prong. In considering the fourth prong the court simply repeated its

finding that "the Division has not shown by clear and convincing evidence that

the child will suffer serious and enduring harm if separated from the foster

parents." In doing so, the court incorporated its error in analyzing the second

prong into its analysis of the fourth prong.


                                                                           A-0170-17T1
                                        64
      The Division never asserted in this case that Gracie would suffer severe

and enduring harm if she were separated from her resource parents 3 necessitating

termination of Matt's and Susan's parental rights, as was the case, for example

in A.G., 344 N.J. Super. at 438, where the time spent in foster care had become

"a harm in and of itself," N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J.

145, 175 (2010) (quoting A.G., 344 N.J. Super. at 434). The Division's case,

which the Law Guardian supported, was that Matt, by his inability to care for

Gracie, and Susan, by her unwillingness to do so, had caused Gracie harm, which

neither could remit despite services, that there was no reasonable alternative to

termination and that termination, in light of the relationship Gracie had forged

with her resource parents, would not do more harm than good.

      The Division's case simply did not rest on proving that Gracie would

suffer severe and enduring harm were she separated from her resource parents.

It did not need to prove that proposition to carry its burden on the second prong,

nor did it need to do so to carry its burden on the fourth prong of proving that

termination would not do more harm than good. To be sure, there are cases in

which the Division must show precisely that in order to sustain its burden, as in


3
  Although the Division has argued the court prevented Figurelli from offering
that opinion, our review of the record does not suggest he was precluded from
offering his entire opinion at trial.
                                                                         A-0170-17T1
                                       65
In the Matter of the Guardianship of J.C., 129 N.J. 1 (1992). But in J.C., the

Division was not asserting that the defendant mother was then unable or

unwilling to care for her children, but only that her rehabilitation had come too

late, that her children had become bonded to their resource parents, caused by

or exacerbated by her conduct, and they faced serious harm if separated from

their foster parents. Id. at 8, 25.

      Justice Handler, writing for the Court in J.C., explained that when the

Division "seeks termination of parental rights, not on grounds of current

unfitness but because of potential harm to the child based on separation from a

foster parent with whom the child has bonded, the quality of the proof adduced

must be consistent with the interests at stake." Id. at 18. Acknowledging that

"prolonged inattention by natural parents that permits the development of

disproportionately stronger ties between a child and foster parents may lead to

a bonding relationship the severing of which would cause profound harm — a

harm attributable to the natural parents and cognizable under the standards set

forth in A.W.," the Court nevertheless held it was not enough "[t]o show that the

child has a strong relationship with the foster parents or might be bette r off if

left in their custody." Id. at 18-19. Instead, the Division "must prove by clear




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                                       66
and convincing evidence that separating the child from his or her foster parents

would cause serious and enduring emotional or psychological harm." Id. at 19.

      This was not a case in which a now fit natural parent was ready to resume

custody, forcing the court to decide whether it could return the child to that fit

parent without causing her severe and enduring emotional or psychological harm

by disrupting her relationship with her resource parents, as in J.C. Here, the

Division asserted, and the court found, that neither Matt nor Susan was capable

of functioning as Gracie's parent, a situation that was unlikely to change.

Because the Division proved Matt and Susan's "current unfitness," id. at 18, it

did not have to shoulder the burden the court assigned it to show "by clear and

convincing evidence that [Gracie] will suffer serious and enduring harm if

separated from the foster parents." The critical question, as in K.H.O., was

whether Gracie "will suffer a greater harm from the termination of ties" with her

natural mother, father and his extended family "than from the permanent

disruption of her relationship with her foster parents." 161 N.J. at 355.

      The court never undertook that inquiry. Indeed, we cannot even be sure

the court appropriately considered whether Mattie could reasonably serve as a

fit parent for Gracie, in light of the court's comment that "[t]he Division tried to

make this case about [Mattie] and her addiction to pain medication because of a


                                                                            A-0170-17T1
                                        67
botched surgery," when "the only reason the child was not placed with [Mattie]

and [Henry]" was "an inadequate assessment of the family finances." Clearly

the court was not ready to place Gracie with Mattie and Henry at the time of

trial because it denied their request for custody.

      What we do know is that recasting the tests on the second and fourth

prongs kept the court from having to consider the testimony of the Division's

and Law Guardian's experts that terminating Gracie's relationship with her

resource parents would result in "a massive disruption with likely regressions in

her development" and "a significant emotional loss as a result of the loss of that

relationship," and that time had moved "beyond the point where . . . it does not

do [Gracie] more harm than good for her to be removed from her current

caretakers." While a court is certainly free to reject an expert's testimony, it

may not recast an established test to avoid confronting it.

      The result of the court having erroneously concluded the Division did not

make reasonable efforts to assess Mattie and Henry when it closed Mattie's case

in January 2017 and failed to shoulder the burden the court erroneously assigned

it to show Gracie would suffer severe and enduring harm from the permanent

disruption of her relationship with her resource parents was its conclusion that

it could "delay permanency for a period necessary to facilitate a plan of effecting


                                                                          A-0170-17T1
                                       68
permanency with the paternal relatives." Although it denied Mattie and Henry's

motion for custody under the FD docket at that time, it did so "without prejudice

until a plan for permanent placement with [Mattie] and [Henry] can be

implemented." It undoubtedly did so thinking the time would be brief, as it

found "a short delay of permanency is in the child's best interests."

      Whatever the court's intentions as to the time it would take to implement

a permanency plan with Mattie and Henry, almost eighteen months have passed

since the court dismissed the termination case and Gracie remains in foster care

with her resource parents. That means that Gracie, now four years and three

months old, has been in foster care for nearly four years. Although counsel

could not provide us the reasons for this inordinate delay at oral argument, that

delay, coupled with the analytical errors we have discussed, compel us to vacate

the order dismissing the termination complaint and remand for reconsideration

as to the third and fourth prongs of the best interests standard.

      Our Supreme Court has often reiterated "New Jersey's strong public policy

in favor of permanency," emphasizing "[t]he trend over the last [forty] years has

been towards foster care reforms that place limits on the amount of time a parent

may have to correct conditions at home in anticipation of reunification." Id. at

357-58. Whether the court should have initially considered Mattie's failure to


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have timely completed services in order to have the Division close her case so

that she could be considered a placement for her niece, today there appears little

doubt that a permanent placement for Gracie is being delayed by her aunt's

inability to safely assume her care. Long-term foster care for a child who had

the promise of a permanent placement with resource parents who have provided

her nurture and care since she was six months old while the court awaits a

paternal relative's ability to safely assume custody is unacceptable.

       Accordingly, we reinstate the Division's complaint for guardianship,

conclude the Division has carried its burden of clear and convincing evidence

as to both parents on the first two prongs, as well as its reasonable efforts to

provide services on the third, and remand for consideration, in light of the

current situation, of whether there exist alternatives to termination and if Gracie

"will suffer a greater harm from the termination of ties" with her natural parents

and Matt's extended family "than from the permanent disruption of her

relationship with her foster parents" should they remain willing to adopt. Id. at

355.

       Susan and Matt shall be considered separately for this analysis. "The

mother cannot rely on the father's potential claims and defenses to avoid

termination of her parental rights." H.R., 431 N.J. Super. at 228. The court may


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direct updated expert reports at its discretion. The court in considering whether

termination will not do more harm than good is free to consider any offer by the

resource parents to permit continued contact between Gracie and her paternal

family.     See M.M., 189 N.J. at 288 (considering the resource parents'

"willingness to permit continued visitation" as "[i]ntegral to [the Court's]

analysis under the fourth prong").

        Because the judge who heard the matter has already conscientiously

engaged in weighing the evidence and rendered an opinion on the credibility of

the witnesses, the hearing on remand should take place before a different judge.

See A.W., 103 N.J. at 617. Thus we direct the matter be specially assigned to a

new judge for expeditious disposition, which shall occur within the next sixty

days.

        Vacated and remanded for further proceedings not inconsistent with this

opinion. We do not retain jurisdiction.




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