                                     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                                NOT FOR PUBLICATION WITHOUT THE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-1165-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

         Plaintiff-Respondent,

v.

E.N.S.,

         Defendant-Appellant/
         Cross-Respondent,

and

L.G. and O.A.,

     Defendants.
_______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF J.A.S.
and J.A.G., Minors,

     Respondents/Cross-Appellants.
_______________________________

                   Submitted September 10, 2019 – Decided October 24, 2019
            Before Judges Fisher and Accurso.

            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Essex County,
            Docket No. FG-07-0100-18.

            Joseph E. Krakora, Public Defender, attorney for
            appellant/cross-respondent (Robyn A. Veasey, of
            counsel; Stephania Saienni-Albert, Designated
            Counsel, on the briefs).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for respondents/cross-appellants (Nancy P.
            Fratz, Assistant Deputy Public Defender, of counsel
            and on the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jane C. Schuster, Assistant Attorney
            General, of counsel; Casey Jonathan Woodruff,
            Deputy Attorney General, on the brief).


PER CURIAM

      Defendant E.N.S. appeals from a final judgment terminating her parental

rights to her nearly fifteen-year-old son, Jay, and thirteen-year-old son, Jim. 1

She contends the Division of Child Protection and Permanency failed to prove

the four prongs of the best interests standard of N.J.S.A. 30:4C-15.1(a)(1) to

(4) by clear and convincing evidence. The Law Guardian cross-appeals on



1
  These names are fictitious. We employ them to protect the children's
privacy.
                                                                           A-1165-18T3
                                         2
behalf of the boys. Although conceding the Division met the first three prongs

of the best interests standard, she contends the Division's plan for these boys,

select home adoption, is a "gamble." The Law Guardian contends termination

of parental rights will do these children more harm than good because it risks

severing the connection between the brothers as well as their connection with

their maternal relatives.

      Judge Paganelli presided over a three-day trial in this case. He

considered the Law Guardian's arguments and the boys' desire to remain

together and with their grandmother, who refused both adoption and kinship

legal guardianship. He nevertheless concluded that continuing their

relationship with their mother, whom he found endangered their lives and with

whom reunification, as the Law Guardian concedes, was not possible, was not

in their best interests. The judge relied on the "compelling" testimony of the

Division's adoption supervisor that Jay and Jim could be provided with

adoptive placements. He also relied on the Division's acknowledgment that

the boys, given their ages, would have a say in their placements and clearly

wanted to be placed together, which the Division considered optimal.

      Having reviewed the record, we find no basis to second-guess the judge's

factual findings in this difficult case. Accordingly, we affirm substantially for


                                                                          A-1165-18T3
                                        3
the reasons expressed by Judge Paganelli in his thorough and thoughtful

written opinion of October 24, 2018. We add only that in trying to effect a

permanent placement for these boys, the Division must use its best efforts to

avoid the further harm they would suffer by disruption of the connection

between them, one obviously important to both brothers. See In re D.C., 203

N.J. 545, 566 (2010).

      The facts are fully set forth in Judge Paganelli's detailed sixty-page

opinion, and we need not repeat them here. Suffice it to say the boys were

first removed from their mother's care in 2007, after the death of their brother,

the second infant to die in defendant's care that year. 2 Although doctors

initially believed the baby died from the same sort of respiratory problems that

claimed his brother, an autopsy revealed a skull fracture and rib fractures of

varying ages. The death was deemed suspicious and defendant substantiated

for neglect.

      Jay and Jim were returned to their mother in 2010, but the referrals

continued. In 2014 defendant pinned a note to Jim's shirt before school

stating, "I lie, am disrespectful, steal and pee in the bed." When defendant's


2
  In January 2007, Jim's twin brother, then three months old and suffering
from "severe respiratory problems," died after the child was put to bed on his
stomach in a "portable baby carrier."
                                                                         A-1165-18T3
                                        4
stepfather attempted to prevent her from sending Jim to school with the note

pinned to his shirt, defendant choked him. The Division offered defendant

services, including parenting skills classes, which she declined.

      The incident precipitating this action occurred in 2017, when Jim found

a gun that defendant was holding for her boyfriend in the room she shared with

the children in her mother's home. Jim, then ten years old, claimed the

boyfriend punched him in the face and hit him with a belt in front of defendant

for refusing to lie about the gun.

      A Division worker saw the boy's bruised and bloodied face in the

emergency room where he had been taken by his grandmother. Interviewed at

the police station, defendant admitted holding the gun but denied her boyfriend

had hit Jim. Defendant, who the worker reported was "very aggressive and

combative," complained that Jim was the source of her continued involvement

with the Division, and that "she [didn't] want to deal with [him] or his brother

[Jay] anymore," saying "fuck these kids — y'all can have them."

      Following their removal, the boys' maternal grandmother assumed their

care. She eventually, however, found Jim too difficult and disruptive to

manage and asked the Division to remove him. Jim was placed in a residential

care facility. After he was approved for step-down care, his grandmother


                                                                          A-1165-18T3
                                        5
refused to have him live with her, and Jim was placed in a therapeutic resource

home.3 Although Jay continued in her care through trial, she has steadfastly

declined either kinship legal guardianship or adoption of either boy.

      The Division's experts diagnosed defendant with antisocial personality

disorder, opining she sees others as objects to be used for her own purposes

and not as individuals with their own perspectives. Dr. Sostre, a psychiatrist,

chronicled defendant's mental health history, which included a psychiatric

hospitalization and medication as a teenager, followed by two years of

residential treatment, but no treatment as an adult.

      Because she had not observed defendant with her sons, Dr. Sostre

declined to provide an opinion on defendant's ability to parent them. She did,

however, note that antisocial personality disorder is not treatable. She further

explained that defendant's lack of empathy, characteristic of those with

antisocial personality disorder, would make it difficult for her to understand

how her actions might cause her children to feel, for example, that her failure

to visit would cause them pain. Although not optimistic about her prognosis,

Dr. Sostre recommended individual psychotherapy "to at least give [defendant]


3
  The Law Guardian recently advised that resource parent has since requested
Jim's removal from her home, and he has been placed in another resource
home.
                                                                           A-1165-18T3
                                        6
a shot" at "increasing her ability to empathize or recognize the needs of her

children."

      The Division's psychologist, Dr. Kirschner, agreed with Dr. Sostre's

diagnosis. His own testing revealed defendant's lack of empathy, and her

scores were among the most extreme he had ever seen on the scales measuring

belief in corporal punishment and in restricting power and independence in

children. Dr. Kirschner testified defendant's scores made clear "there's really

only one tool in [defendant's] toolbox," corporal punishment.

      Dr. Kirschner testified that defendant lacked the ability to adequately

meet the needs of her sons for safety and protection, as well as for nurturance

and stability and could not provide them guidance and judgment. In his view,

the likelihood of that changing in the foreseeable future "was generally poor."

As a result of his bonding evaluation, Dr. Kirschner learned that Jay was

"neutral" as to reunification and would prefer living with his grandmother,

with whom he felt safer and who had provided him a more stable home than he

had with his mother. Jim, who was living in a residential treatment facility at

the time of the evaluation, wanted to be with his brother.

      Dr. Kirschner acknowledged the children had a bond with their mother,

but claimed that over the course of time, defendant had left them "with


                                                                          A-1165-18T3
                                        7
questions as to whether they can trust her to be available to them," resulting in

an insecure attachment. Although noting it was "possible that termination of

[defendant's] parental rights could lead to these children experiencing severe

and enduring harm if they were not to . . . forge a relationship with another

person . . . that was able to . . . make a commitment to them," Dr. Kirschner

testified he could not in good faith recommend maintaining the status quo

because of the lack of "any real prospects for reunification." In Dr.

Kirschner's view, "[w]hile [termination of parental rights] through select home

adoption understandably creates an aspect of uncertainty and arguably could

create harm for these children," it also provides "the opportunity for

potentially being in a situation [for them] to become adopted."

      The Division presented the testimony of the adoption worker assigned to

the family and the adoption supervisor responsible for overseeing the process.

The judge found both to be credible witnesses who provided detailed and

informative testimony. Both testified that neither the boys' ages nor Jim's

behavior problems made adoption unlikely.

      The adoption worker freely acknowledged that Jay had expressed an

unwillingness to be adopted by anyone other than his grandmother or his




                                                                         A-1165-18T3
                                        8
godmother4 and planned to "wait out" the Division until he was sixteen and

eligible for independent living. The worker testified Jim only wants to be

adopted if he and Jay are adopted together. The worker acknowledged the

close ties the boys have to their mother's extended family. She testified the

Division "can't force [the boys] to be adopted." Instead, Division staff and

therapists would work with them to see the potential adoption provides. The

worker also testified the Division would continue to urge the grandmother to

reconsider her stance on adoption 5 and to explore other relatives who might be

willing to adopt the boys. She acknowledged in response to questions from the

court that the Division's plan for select home adoption could result in the

children being placed separately.

      The adoption supervisor explained the adoption process and that the

boys, based on their ages, would be involved all along the way. She related

examples of how the Division has worked with other teenagers unwilling to be

adopted to see that workers "can help [them] be at a place where [they're]



4
  The Division evaluated Jay's godmother for placement and ruled her out
because she lacked adequate space for another child.
5
  The worker testified the grandmother's refusal to adopt her grandsons
stemmed from her belief that doing so "would just cause more conflict" with
defendant.
                                                                         A-1165-18T3
                                        9
going to be stable and [they] can be a part of this." The supervisor

acknowledged the difficulties posed by the children's ages, their desire to

remain together and Jim's behavioral issues, especially in light of defendant's

diagnosis, but remained steadfast that other children with more difficulties

have been successfully adopted. She testified that Jim would remain with his

grandmother throughout the process unless she was unwilling to continue to

care for him.

      Defendant testified in her own behalf. She admitted she stopped visiting

her sons, first because she was angry and upset over their removal and later

because work interfered, but insisted she saw Jay regularly at her mother's

house. She also admitted she refused to engage in the therapy recommended

by Dr. Sostre because she had already completed a course of therapy and "got

no recognition for that." Although she acknowledged the Division had

"impressed upon [her] the need to get housing" since the day the boys were

removed, defendant admitted the room she was renting would not be a suitable

place for her sons to live.

      Based on his detailed rendition of the facts adduced at trial and his

assessments of the credibility of the witnesses who testified, Judge Paganelli

found the Division established all four prongs of the best interests standard by


                                                                         A-1165-18T3
                                      10
clear and convincing evidence. He found defendant had endangered her

children by their removal following the suspicious death of their sibling, her

admitted regular use of corporal punishment, her failure to provide them

appropriate housing and working utilities, the physical confrontation with her

stepfather when she tried to embarrass Jim at school over his bedwetting, and

by bringing a gun into her home, which Jim found, leading to another removal.

The judge also found the boys' safety, health and development would continue

to be endangered by their relationship with their mother based on her lack of

insight into their needs, her antisocial personality disorder and her continued

failure to maintain adequate housing.

      Judge Paganelli also found defendant was unwilling or unable to

eliminate the harm to Jay and Jim. Given defendant's adamant refusal to

engage in therapy and her failure to participate in therapeutic visitation, both

geared to assist her in understanding and meeting her sons' needs, the judge

found her trial testimony that she would now do anything to regain custody of

her children to lack credibility.

      Cataloging the many services the Division provided defendant, the judge

concluded the Division had easily met its obligation to provide her the services

she needed to correct the conditions that led to the children's placement. The


                                                                          A-1165-18T3
                                        11
judge also considered, and rejected, alternatives to termination, including

relative placement, long-term specialized care, independent living and kinship

legal guardianship with the children's maternal grandmother.

      Finally, the judge concluded, based on the expert testimony, that

termination of defendant's parental rights would not do more harm than good.

He accepted Dr. Kirschner's testimony, unrebutted on this record, that

defendant is unable to meet her sons' developmental needs and continues to

pose a heightened risk of harm to them in the event of reunification.

      The judge was clearly mindful of the Supreme Court's acknowledgment

of the "unfortunate truth that not all children, who are 'freed' from their legal

relationship with their parents, find the stable and permanent situation that is

desired even though this is the implicit promise made by the state when it

seeks to terminate the parent-child relationship," N.J. Div. of Youth & Family

Servs. v. A.W., 103 N.J. 591, 611 (1986) (quoting In re Angelia P., 623 P.2d

198, 210 (Cal. 1981) (Bird, C.J., concurring and dissenting)), and that "[a]

court should hesitate to terminate parental rights in the absence of a permanent

plan that will satisfy the child's needs." N.J. Div. of Youth & Family Servs. v.

B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996). He relied, however, on the

"credible and persuasive" testimony of the Division's adoption supervisor, who


                                                                           A-1165-18T3
                                        12
"testified confidently, although not with certainty," that Jay and Jim "could be

provided with adoptive placements," and that the Division has secured

adoptive homes for other children initially hesitant or opposed to adoption.

      The judge rejected defendant's and the Law Guardian's assertion that the

case bore a close resemblance to the facts in New Jersey Division of Youth &

Family Services v. E.P., 196 N.J. 88 (2008), taking pains to distinguish the

reaction of the children to the prospect of not being reunited with their mother,

the stability of their interim placements and the prospects for adoption in this

case from the very different facts in E.P. Instead, he concluded the greater

harm would likely result from continuing Jay and Jim's relationship with

defendant than by the uncertainty posed by the Division's plan of select home

adoption based on the facts adduced at trial.

      Our review of a trial court's decision to terminate parental rights is

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

(2012). We generally "defer to the factual findings of the trial court because it

has the opportunity to make first-hand credibility judgments about the

witnesses who appear on the stand; it has a 'feel of the case' that can never be

realized by a review of the cold record." E.P., 196 N.J. at 104 (quoting N.J.

Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).


                                                                          A-1165-18T3
                                       13
      Having reviewed this record, we are convinced Judge Paganelli's

findings have ample support in the trial testimony. Defendant's arguments that

there was insufficient evidence to conclude that her sons' safety, health or

development had been or would continue to be harmed by their relationship

with her; that she was unwilling or unable to eliminate the harm or provide

them a safe and stable home; and that the Division had made reasonable efforts

at reunification are without sufficient merit to warrant discussion here. See R.

2:11-3(e)(1)(E).

      As the Law Guardian acknowledges, this case turned on the fourth

prong. But this case is not E.P., which the Court characterized as one in which

"a parent-child relationship that continued to provide emotional sustenance to

the child" was "severed based on the unlikely promise of a permanent adoptive

home." E.P., 196 N.J. at 114. Neither boy here is sustained emotionally by his

relationship with defendant. Dr. Kirschner testified that Jim told him he would

feel "neutral" to reunification with his mother. The doctor explained that

"[even] in instances where parents have done horrific things to a child, a lot of

times the child says I want to be reunified with my parent" because they have a

desire to maintain that connection. Dr. Kirschner's view was that "[n]eutral is




                                                                         A-1165-18T3
                                       14
as noncommittal I think as you can get." Jim's emotional connection is with

his brother, not his mother.

        In weighing the evidence on the fourth prong, the court was balancing

what Dr. Kirschner testified was the boys' insecure attachment to their mother

against the opportunity for permanency presented by the Division's adoption

workers who testified Jay and Jim were still adoptable and capable of

permanent placement. We do not underestimate the difficulty of the decision

facing a trial court weighing the evidence on the fourth prong when there is no

adoptive family waiting for the child. But as the Court has acknowledged,

"there will be circumstances when the termination of parental rights must

precede the permanency plan." A.W., 103 N.J. at 611. As the Court

explained, "given the need for continuity, the child's sense of time, and the

limits of our ability to make long-term predictions, [the best interests of the

child] are more realistically expressed as the least harmful or least detrimental

alternative." Id. at 616 (quoting Albert J. Solnit, Psychological Dimensions in

Child Placement Conflicts, 12 N.Y.U. Rev. L. & Soc. Change 495, 499 (1983-

84)).

        Judge Paganelli capably and conscientiously weighed the evidence in the

record in determining that the termination of defendant's parental rights to Jay


                                                                          A-1165-18T3
                                       15
and Jim will not do them more harm than good. Because there is sufficient

support in the record for the court's conclusion that the Division proved all

four prongs of the best interests standard by clear and convincing evidence, we

affirm the termination of defendant's parental rights, substantially for the

reasons expressed by Judge Paganelli in his thorough and thoughtful wri tten

opinion.

      We add only that in trying to effect a permanent placement for these

boys, the Division must use its best efforts to avoid the further harm they

would suffer by disruption of the connection between them, one obviously

important to both brothers. See In re D.C., 203 N.J. at 566. The Law

Guardian is free to make an application to the trial court for entry of an order

to ensure the continuing relationship between Jay and Jim and continued

judicial oversight pending the boys' eventual adoption. See In re Guardianship

of Jordan, 336 N.J. Super. 270, 276 (App. Div. 2001) (affirming guardianship

order separating siblings but remanding to the trial judge to "do whatever he

can by way of judicial supervision and order to nurture this relationship"

between the siblings).

      Affirmed.




                                                                          A-1165-18T3
                                       16
