                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1790-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

K.W.,

          Defendant-Respondent,

and

G.R., JR.,

     Defendant-Appellant.
______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF I.R.,

     a Minor.
______________________________

                    Submitted December 2, 2019 – Decided December 24, 2019

                    Before Judges Moynihan and Mitterhoff.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Monmouth County,
            Docket No. FG-13-0051-17.

            Joseph E. Krakora, Public Defender, attorney for
            appellant, G.R., Jr. (Robyn A. Veasey, Deputy Public
            Defender, of counsel; James Daniel O'Kelly,
            Designated Counsel, on the brief).

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

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Meredith Alexis Pollock, Deputy
            Public Defender, of counsel and on the brief).

PER CURIAM

      Defendant G.R., Jr. (Gary) appeals from an order, entered after a five-day

trial, terminating parental rights to his daughter, I.R. (Ivette), who was born in

December 2010.1      The Division of Child Protection and Permanency (the

Division) removed Ivette from the care of her mother, K.W. (Karen) and

subsequently commenced this action against both parents. 2         The Division


1
   We use pseudonyms throughout this opinion to protect the privacy of the
children and parties, and preserve the confidentiality of these proceedings. R.
1:38-3(d)(12). Our use intends no disrespect or familiarity.
2
  Karen's parental rights were terminated in December 2015. She did not appeal
that order.


                                                                          A-1790-18T3
                                        2
simultaneously removed Karen's other children, H.M. (Harper), M.D. (Mark)

and L.W. (Laura).3

      Gary argues the trial judge erred in finding the Division proved the first,

second and third statutory factors used in determining parental-rights

termination petitions.   N.J.S.A. 30:4C-15.1(a).     He asserts the trial court's

opinion is "devoid of any reference to a controlling statute or case law," and

contains no "relevant specific legal conclusions" relating to the many facts it

found. He also avers "the trial court failed to reference the second and third

prongs in its oral opinion or identify the facts that established satisfaction of

those prongs – by clear and convincing evidence."

      We apply our limited standard of review, upholding "the trial court's

factual findings . . . when supported by adequate, substantial, and credible

evidence[,]" and "defer[ring] to the trial court's credibility determinations," yet

reviewing de novo, without "'any special deference,'" the "'trial court's

interpretation of the law and the legal consequences that flow from established

facts are not entitled to any special deference.'" N.J. Div. of Youth & Family



3
  Harper was placed with her father and is not involved in this appeal. Laura's
father surrendered his parental rights, and the trial court terminated Mark's
father's parental rights after entering a default and holding a proof hearing.
Neither father filed an appeal.
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                                        3
Servs. v. R.G., 217 N.J. 527, 552-53 (2014) (quoting Manalapan Realty, L.P. v.

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Although the trial

court's findings of fact and conclusions of law were anomalously terse, we

affirm. See R. 1:7-4(a).

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

control of their children. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); In

re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive

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

and '[r]ights far more precious . . . than property rights.'" Stanley v. Illinois, 405

U.S. 645, 651 (1972) (third alteration in original) (citations omitted). "[T]he

preservation and strengthening of family life is a matter of public concern as

being in the interests of the general welfare[.]" N.J.S.A. 30:4C-1(a); see also

K.H.O., 161 N.J. at 347.

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

absolute. R.G., 217 N.J. at 553; N.J. Div. of Youth & Family Servs. v. A.W.,

103 N.J. 591, 599 (1986). At times, a parent's interest must yield to the State's

obligation to protect children from harm. N.J. Div. of Youth & Family Servs.

v. G.M., 198 N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10

(1992). To effectuate these concerns, the Legislature created a four-prong test


                                                                              A-1790-18T3
                                          4
for determining when a parent's rights must be terminated in a child's best

interests.   N.J.S.A. 30:4C-15.1.    N.J.S.A. 30:4C-15.1(a) requires that the

Division prove by clear and convincing evidence:

             (1) The child's safety, health, or development has been
             or will continue to be endangered by the parental
             relationship;

             (2) The parent is unwilling or unable to eliminate the
             harm facing the child or is unable or unwilling to
             provide a safe and stable home for the child and the
             delay of permanent placement will add to the harm
             . . . .;

             (3) The [D]ivision has made reasonable efforts to
             provide services to help the parent correct the
             circumstances which led to the child's placement
             outside the home and the court has considered
             alternatives to termination of parental rights; and

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

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

      Gary does not challenge the trial judge's finding regarding the fourth

prong: the Division established termination of his parental rights will not do

more harm than good. N.J.S.A. 30:4C-15.1(a)(4). We, therefore, examine the

evidence that supports the judge's findings on the first three prongs.

      Gary's argument that the trial court's findings regarding the first prong

were insufficient to establish that he abandoned Ivette under N.J.S.A. 30:4C-

                                                                         A-1790-18T3
                                        5
15.1(b)(1) and N.J.S.A. 30:4C-15(d), lacks sufficient merit to warrant discussion

in this opinion. 4      R. 2:11-3(e)(1)(E).     Although the Division alleged

abandonment under those statutes in its complaint for guardianship, the sole

theory it advanced at trial was the best interests standard under N.J.S.A. 30:4C -

15.1(a).

        To establish prong one under that statute—"[t]he child's safety, health, or

development has been or will continue to be endangered [or harmed] by the

parental relationship[,]" N.J.S.A. 30:4C-15.1(a)(1)—the Division "must show

that the alleged harm 'threatens the child's health and will likely have continuing

deleterious effects on the child.'" N.J. Div. of Youth and Family Servs. v. F.M.,


4
    The Division must commence "a petition to terminate parental rights" if

              for a period of six or more months . . . the parent,
              although able to have contact, has had no contact with
              the child, the child's resource family parent or the
              [D]ivision . . . and . . . the parent's whereabouts are
              unknown, notwithstanding the [D]ivision's reasonable
              efforts to locate the parent.

              [N.J.S.A. 30:4C-15.1(b)(1)(a)-(b)].

Similarly, a petition must be filed if the parent, after the removal and acceptance
or placement of the child by the Division, "fail[s] for a period of one year to
remove the circumstances or conditions that led to the removal or placement of
the child, although physically and financially able to do so, notwithstanding the
[D]ivision's reasonable efforts to assist the parent . . . in remedying the
conditions." N.J.S.A. 30:4C-15(d).
                                                                           A-1790-18T3
                                         6
211 N.J. 420, 449 (2012) (quoting K.H.O., 161 N.J. at 352). "To satisfy this

prong, [the Division] does not have to wait 'until a child is actually irreparably

impaired by parental inattention or neglect.'" Ibid. (quoting In re Guardianship

of D.M.H., 161 N.J. 365, 383 (1999)).        "Serious and lasting emotional or

psychological harm to children as the result of the action or inaction of their

biological parents can constitute injury sufficient to authorize the termination of

parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). In fact,

a "parent's withdrawal of [his or her] solicitude, nurture, and care for an

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

development of the child." D.M.H., 161 N.J. at 379. In evaluating this prong,

courts are also "mindful of strong policy considerations that underscore the need

to secure permanency and stability for the child without undue delay." Id. at

385. And, a parent's failure to provide a permanent, safe, stable home for a child

is a harm in and of itself. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J.

Super. 76, 111 (App. Div. 2004); N.J. Div. of Youth & Family Servs. v. B.G.S.,

291 N.J. Super. 582, 591-92 (App. Div. 1996).

      The evidence supports the trial court's conclusion that Gary harmed Ivette

by absenting himself for an extended period after her removal by the Division,

at which time he was not even considered a placement option because he had a


                                                                           A-1790-18T3
                                        7
child endangerment conviction and refused to comply with the terms of a safety

protection plan implemented by the Division. Indeed, Gary testified at trial that

he could not care for Ivette at that time.

      Gary did not visit with Ivette from December 2015 through January 2018.

Despite efforts by the Division to find him—including database searches,

caseworker visits, letters and telephone calls—his whereabouts were unknown

for a substantial period, and the Division considered him "missing." In May

2017, the trial court relieved the Division of its efforts to locate and contact Gary

until such time that he contacted the Division.

      Furthermore, he declined to work with the Division or provide an address

for assessment as a suitable home for Ivette. When offered the opportunity for

therapeutic visitation with Ivette, Gary missed the first two intake appointments

in December 2017 and, despite letters and texts from the Division to reschedule,

Gary did not respond and finally appeared for intake on January 17, 2018.

      Although present at the removal hearing in December 2015, Gary

absented himself from Ivette's life for about two years. The trial court found

incredible Gary's contention that he thought Karen was caring for Ivette. It also

found that Gary "chose one family over another" inasmuch as he was living with




                                                                             A-1790-18T3
                                         8
his wife and their children. And even when he began therapeutic visitation with

Ivette, he was not consistent with scheduled visits.

      Dr. David Brandwein, an expert in the field of psychology, conducted a

psychological evaluation of Gary in June 2018. He testified at trial of his

concern about Gary's absence from Ivette's life, stating, "that's not an

inconsequential amount of time, that's a long time to a child . . . [t]o be basically,

physically and psychologically absent from her life." He expressed that Gary

only "decided to step to the plate when his parental rights were at risk, not during

the earlier period of [the] case" when Ivette was in resource care. Brandwein

summarized his findings:

             This is not somebody who has a personality disorder
             who – that would make them unable to care for
             children. The question here is really [Ivette]. What is
             the impact that his absence had on [Ivette], both
             physically and psychologically. And what [Gary] – I'm
             trying to find the right word – unwittingly, he didn't
             mean to let happen in that interim time period, which is
             that [Ivette] found, along with her siblings, a pre-
             adoptive home, with foster parents that have been
             caring for her for quite some[]time, and that she has
             built quite a strong relationship with.

      Brandwein found most compelling "the bond [Ivette] had with her

resource parents and the bonds [Ivette] has with her siblings." He opined,

despite Gary's positive relationship with Ivette, "too much time has passed," and


                                                                              A-1790-18T3
                                          9
"the impact of engaging in zero efforts to be reunified with this child for . . .

months" contraindicated reunification with Gary. Brandwein also expressed

concern over Gary's inconsistent therapeutic visits.

      Brandwein testified Gary's extended absence contributed to the formation

of a bond between Ivette and her resource parents and further contributed to

Ivette's bond with Laura and Mark. He also opined Ivette would suffer serious

and enduring harm if she were removed from her resource parents' care or from

Laura and Mark. And, that if these bonds were broken, Gary would not be able

to remedy the harm.

      Brandwein also testified that Ivette would experience harm if there is a

continued delay in permanent placement.         He concluded Gary "basically

abandoned his child to the care of the [D]ivision. And that is something very

serious and significant," and that termination would not do more harm than good

here, because Ivette's most secure psychological bonds are with her resource

parents and her siblings, Laura and Mark.

      Dr. Alan Lee, an expert in the field of psychology, conducted

psychological evaluations of Gary in June 2017 and July 2018, and bonding

evaluations of Gary and Ivette in July 2018, Ivette and her resource parents in

July 2017 and July 2018, and Ivette and her siblings in August 2017 and July


                                                                         A-1790-18T3
                                      10
2018. Lee testified at trial that Gary could not provide Ivette with the stable,

positive bond that she needs. He also opined Ivette had formed a significant and

positive bond with her resource parents, who were willing to adopt Ivette

together with Mark and Laura, both of whom were also living with the resource

parents, and with whom Lee found Ivette had formed a significant and positive

bond. Lee also opined there was a significant risk that Ivette would suffer severe

and enduring psychological or emotional harm if her relationship with her

resource family ended.

      Gary's withdrawal from Ivette's life for many months, and his failure to

offer a safe and stable home in Ivette's hour of need, posed harm to Ivette's

safety, development and well-being. We note Ivette was being treated for

trauma, after being diagnosed with adjustment disorder, child neglect, attention

deficit disorder and oppositional defiant disorder. Gary was nowhere to be

found while Ivette suffered through this period. We further consider Ivette's

need for permanency, and Gary's failure to provide same, in determining there

was sufficient evidence to support the trial court's finding that the Division had

presented clear and convincing evidence to establish the first statutory prong.

      Gary argues the trial court failed to "make explicit prong two findings"

and its "passing" conclusion that Gary "did not comply with services and when


                                                                          A-1790-18T3
                                       11
he did, he completed the services 'he wanted to do[,]'" was not based on

substantial, credible record evidence, because Gary did complete services.

      Our Supreme Court has recognized the second statutory prong focuses not

on whether the parents "are themselves unfit or whether they are the victims of

social circumstances beyond their control," but on "whether it is reasonably

foreseeable that the parents can cease to inflict harm upon the children entrusted

to their care." A.W., 103 N.J. at 607. "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). "[T]he inquiry centers on whether the parent is able to remove the

danger facing the child." F.M., 211 N.J. at 451. The Court cautioned that "the

price of focusing on the plight of the parents . . . is that the child is kept in

waiting for what the decision-makers view as the ideal or best placement." A.W.

103 N.J. at 601-02. What most concerned the A.W. Court was the lack of

evidence of "any realistic likelihood that the parents would ever be capable of

caring for the children." Id. at 614. Even when parents are not blameworthy

because they were "shortchanged by either nature or society," this prong is

satisfied when their behavior "indicates a further likelihood of harm to the child

in the future." Id. at 615-16.


                                                                          A-1790-18T3
                                       12
      The trial court found the Division proved Gary was unwilling or unable to

eliminate the harm caused by Ivette's lack of permanency and stability. The

court cited Gary's initial refusal to engage with the Division, and his subsequent

failure to fully comply with services, as raising "serious concerns regarding his

ability to care for this child at this time," and noted Gary avoided telling the

Division where he lived.

      Although Gary eventually complied with services the Division offered—

except individual counseling—his participation, as noted by Brandwein, was

inconsistent, and his prolonged absence from Ivette's life was telling evidence

that he was unwilling or unable to both eliminate the harm she faced and provide

a safe and stable home for her.       Furthermore, Lee found Gary's parenting

knowledge and childrearing skills to be limited and advised against Gary serving

as an independent caretaker for the foreseeable future.          Brandwein was

concerned about Gary's failure to appreciate the impact if Ivette was removed

from her resource parents and siblings. Even Gary's psychological expert, Dr.

Gerard Figurelli, was concerned about Gary's ability to parent adequately over

a sustained period of time, given Gary's lack of consistent compliance with

therapeutic visitation, and its impact on Ivette.




                                                                          A-1790-18T3
                                       13
         Moreover, as the trial court found, crediting Lee's and Brandwein's

testimony—and disbelieving Figurelli's expert testimony—it "didn't make sense

that denying permanency to this child, after being at a placement for three years,

could possibly be in her best interest." The court also found it would cause more

harm than good to separate Ivette from her resource parents and her siblings,

recognizing Ivette's need for permanency.

         Notwithstanding Gary's compliance with most of the Division's services,

the experts' views that he was not yet ready to assume Ivette's care, and his

dilatory actions that impacted on Ivette's sense of permanency, supported the

trial court's conclusion that the Division met its burden regarding the second

prong.

         Finally, Gary argues the Division did not make reasonable efforts to

provide services designed to reunite him with Ivette, and failed to consider his

sister-in-law and her mother as alternatives to termination so as to satisfy prong

three.

         The third prong requires the Division to undertake "reasonable efforts to

provide services to help the parent correct the circumstances which led to the

child's placement outside the home" and requires the court to consider




                                                                          A-1790-18T3
                                        14
"alternatives to termination of parental rights."      N.J.S.A. 30:4C-15.1(a)(3).

Reasonable efforts are defined in N.J.S.A. 30:4C-15.1(c) as

            attempts by an agency authorized by the [D]ivision to
            assist the parents in remedying the circumstances and
            conditions that led to the placement of the child and in
            reinforcing the family structure, including, but not
            limited to:

            (1) consultation and cooperation with the parent in
            developing a plan for appropriate services;

            (2) providing services that have been agreed upon, to
            the family, in order to further the goal of family
            reunification;

            (3) informing the parent at appropriate intervals of the
            child’s progress, development and health; and

            (4) facilitating appropriate visitation.

      "Reasonable efforts depend on the facts and circumstances of each case."

R.G., 217 N.J. at 557, and "may include consultation with the parent, developing

a plan for reunification, providing services essential to the realization of the

reunification plan, informing the family of the child's progress, and facilitating

visitation," N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 281

(2007). "The emphasis here is on the steps taken by [the Division] toward the

goal of reunification." F.M., 211 N.J. at 452. "'The diligence of [the Division]'s




                                                                          A-1790-18T3
                                       15
efforts on behalf of a parent is not measured by' whether those efforts were

successful." Ibid. (quoting D.M.H., 161 N.J. at 393).

      This prong also requires that the court consider alternatives to the

termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3). The statute "does not

permit the Division to embark on a course set for termination of parental rights

and adoption by a foster parent without at least first exploring available relative

placements." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super.

568, 580 (App. Div. 2011); see also N.J.S.A. 30:4C-12.1.             An important

objective of the statutory scheme is "prompt identification of relatives and notice

to them of the results of the investigation and the potential for termination if the

child remains in foster care." Ibid.

      We find no merit in these arguments. The Division offered a number of

services with the goal of reunifying Gary and Ivette. We also note the Division

regularly sought to contact Gary. Nonetheless, Gary was subsequently provided

with therapeutic visits, a substance abuse evaluation, urine screens,

psychological evaluations, domestic violence classes, parenting classes, and

individual therapy. He withdrew from individual therapy based on his belief

that it was unnecessary, and he inconsistently participated in therapeutic




                                                                            A-1790-18T3
                                        16
visitation. As the trial court found, "[h]e did the services he wanted to do" but

did not demonstrate that "his number one priority was getting [Ivette] back ."

      We determine Gary's argument, relying on Lee's mention that some

enumerated services were for Gary's personal benefit, to be without sufficient

merit to warrant discussion here. R. 2:11-3(e)(1)(E). Gary had to address his

own problems, as found by the expert, before he could act as a proper caretaker

for Ivette, especially considering the trauma she endured. Again, the Division

provided therapeutic visitation in an effort to reunite father and daughter, a

program with which he did not faithfully comply.

      We, likewise, find insufficient merit in Gary's argument the Division

failed to consider his sister in law, M.R. (Mary), or her mother, S.S. (Susan),

when he allegedly proposed them as placement options for Ivette during the

removal hearing in December 2015.          The Division kept all three children

together when it placed them with A.B. (Anna)—whose husband is related to

Gary, and who was familiar with the family on December 15, 2015—prior to the

children's placement with the resource parents.

      Mary, a former Division employee, testified at trial that she volunteered

to serve as a placement option for Ivette in August 2017, but that she would not

be willing to care for all three children. On August 10, 2017, the Division sent


                                                                         A-1790-18T3
                                      17
a letter to Mary ruling her out as a placement option for Ivette on a best-interests

basis because it was "determined by a psychologist that removal from [the

resource home] and her siblings that she is placed with would be detrimental to

[Ivette]." Mary had previously agreed that she did not want to disrupt Ivette's

placement. She confirmed during her testimony that she was ruled out as a

placement option but did not seek to appeal that determination.

       Susan testified she was a licensed foster parent and in December 2015

was willing to serve as a long-term placement for Ivette. But, as of the time of

trial, she was no longer able to serve as a placement option, and she was

uncertain in 2015 whether she would have been able to accommodate Ivette's

siblings.

      Adoption supervisor Heather Delapa testified on behalf of the Division,

consistent with the documentation in the record regarding possible placements

for Ivette, that Susan was a resource parent for the Division and also Gary's

sister-in-law's mother. She was ruled out as a placement for Ivette, as well as

for Laura and Mark, because she was not willing to care for the children in her

home. Susan reiterated this position immediately before trial.

      The trial court found the Division reasonably considered other placement

options, including Mary and Susan. The court found the Division's rule-out of


                                                                            A-1790-18T3
                                        18
Mary was reasonable in light of Ivette's best interests, because Ivette had

developed bonds in her resource home and should not be separated from her

resource parents and siblings. Further, Mary could not take all three children.

The court also found Susan's testimony that she could have taken Ivette in

December 2015, lacked credibility and was "a little bit all over the place"

because she was not clear whether she would have taken Ivette alone, or all the

siblings together.

      The children stayed with Anna until a change in conditions at her home

necessitated movement of the children, ultimately to the resource home where

they currently reside. There is clear and convincing evidence the Division

fulfilled its role to consider alternatives to termination.

      We find insufficient merit in the remainder of Gary's arguments to warrant

any discussion. R. 2:11-3(e)(1)(E).

      Affirmed.




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                                        19
