                                     RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NOS. A-5048-17T4
                                                                    A-5049-17T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

         Plaintiff-Respondent,

v.

J.M. and J.R.M.,

     Defendants-Appellants.
______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF K.M.,
KI.M., Y.M., and N.M.,

     Minors.
______________________________

                   Argued October 3, 2019 – Decided October 28, 2019

                   Before Judges Koblitz, Whipple and Mawla.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Passaic County,
                   Docket No. FG-16-0029-18.
            Meghan K. Gulczynski, Designated Counsel, argued
            the cause for appellant J.M. (Joseph E. Krakora, Public
            Defender, attorney; Robyn A. Veasey, Deputy Public
            Defender, of counsel; Meghan K. Gulczynski, on the
            briefs).

            Marc D. Pereira, Designated Counsel, argued the cause
            for appellant J.R.M. (Joseph E. Krakora, Public
            Defender, attorney; Robyn A. Veasey, Deputy Public
            Defender, of counsel; Marc D. Pereira, on the brief).

            Sara M. Gregory, Deputy Attorney General, argued the
            cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Donna Sue Arons, Assistant
            Attorney General, of counsel; Patricia J. O'Dowd,
            Deputy Attorney General, on the brief).

            Noel Christian Devlin, Assistant Deputy Public
            Defender, argued the cause for minors (Joseph E.
            Krakora, Public Defender, Law Guardian, attorney;
            Noel Christian Devlin, of counsel and on the brief).

PER CURIAM

      Defendants J.M. 1 (Julissa) and J.R.M. (Jorge) appeal from a judgment

terminating their parental rights to their daughters KI.M. (Kelly), born in 2004;

Y.M. (Yvette), born in 2005; N.M. (Narissa), born in 2008; and K.M. (Kara ),

born in 2016. The Law Guardian on behalf of the four children also appeals. 2


1
  We use initials and pseudonyms to preserve the privacy of the parties. R.
1:38-3(d)(12).
2
  The Law Guardian categorizes its appeal as a cross-appeal. We view it as an
appeal.
                                                                        A-5048-17T4
                                       2
The parents assert that the trial court erred in finding that the Division of Child

Protection and Permanency (Division) satisfied all four prongs of the best

interests of the child test set forth in N.J.S.A. 30:4C-15.1.

      The parents and children also contend that the court erred by refusing to

admit evidence concerning their recent progress in substance abuse treatment.

Julissa also argues that her counsel's failure to obtain this evidence and advocate

for its admission in a timely fashion constituted ineffective assistance. We

reverse and remand to the trial court to consider alternatives to termination

because the court did not allow Julissa to introduce evidence of her recent drug

rehabilitation. Also, most importantly, after the close of trial the children were

placed with a relative in Pennsylvania, and the three older girls through counsel

express their preference for Kinship Legal Guardianship (KLG), N.J.S.A.

3B:12A-6(d), rather than termination of parental rights. We thus reverse the

order of termination and remand for the court to determine whether, in light of

recent events, including the parents' drug rehabilitation and the new placement,

termination of parental rights would do more harm than good.               Such a

determination requires an expedited comparative bonding evaluation and

subsequent hearing.




                                                                          A-5048-17T4
                                         3
      At the time of Kara's birth in 2016, the Division could not locate Jorge.

Julissa tested positive for heroin and cocaine, admitted to using heroin

throughout her pregnancy, and said she had received no prenatal care . Kara

suffered from drug withdrawal symptoms, requiring treatment in neonatal

intensive care. The three older girls were living with relatives, where the parents

had placed them. Jorge was located about five months after Kara's birth.

      The parents were afforded supervised visitation, which Julissa attended

fairly regularly and Jorge attended assiduously after he was located. The three

older children were always happy to see their parents and interacted well during

visits. The Division evaluated relatives and moved the children when a willing

and eligible relative was available. Unfortunately, these placements did not

work out.

      Since the litigation began in 2016 when Kara was born, the children were

moved six times, twice to unrelated resource homes and four times to various

relatives, including after trial when they were moved to their current placement

in Pennsylvania with a maternal aunt. Although they were initially separated

into three resource homes, all four girls are currently living together.




                                                                           A-5048-17T4
                                        4
                                I. Legal standard.

      Our review of a decision to terminate parental rights is limited. N.J. Div.

of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). We must determine

whether the decision is supported by substantial and credible evidence. N.J.

Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). We defer to

the trial court's factual findings, because that court has "the superior ability to

gauge the credibility of the witnesses . . . and because it possesses special

expertise in matters related to the family." Ibid. The conclusions that flow from

those findings are also entitled to deference. N.J. Div. of Youth & Family Servs.

v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006). Ultimately, a family court's

decision should not be overturned unless it went "so 'wide of the mark'" that

reversal is needed "to correct an injustice." F.M., 211 N.J. at 448 (quoting N.J.

Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).

      "Parents have a constitutional right to raise their children," id. at 447, but

it is "tempered by the State's . . . responsibility to protect the welfare of

children." In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). Nevertheless,

because termination permanently severs the legal relationship between parent

and child, it should be ordered only where "proof of parental unfitness is clear."

F.M., 211 N.J. at 447.


                                                                           A-5048-17T4
                                         5
      The court must focus its inquiry upon the best interests of the child. Ibid.

Parental rights should only be terminated when:

            (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 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).]

These four criteria "are not discre[te] and separate, but overlap with each other

. . . to identify a child's best interests." N.J. Div. of Youth & Family Servs. v.

A.G., 344 N.J. Super. 418, 434 (App. Div. 2001).

      The burden is upon the State to "demonstrate by clear and convincing

evidence that the natural parent has not cured the initial cause of harm and will

continue to cause serious and lasting harm to the child." In re Guardianship of




                                                                         A-5048-17T4
                                        6
J.C., 129 N.J. 1, 10 (1992). "[A]ll doubts must be resolved against termination

of parental rights." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

                                  II. Prong One.

      Julissa argues that the court wrongly found that her inability to care for

her daughters during the life of the case was a harm that satisfied the first prong,

because this inability stemmed from her "focus on her recovery" from drug

addiction and there was no "specific evidence" that the girls suffered as a result

of the parental relationship. Jorge contends that the court ignored evidence that

he interacted positively with the children during visitation and thus "established

a proper parenting relationship" with them. He asserts that the record shows

that he "is a dedicated and fit parent" despite his addiction.

      Under prong one, the harm caused by the parental relationship "must be

one that threatens the child's health and will likely have continuing deleterious

effects on the child." K.H.O., 161 N.J. at 352. The focus is not on a single or

isolated harm, but on "the effect of harms arising from the parent-child

relationship over time on the child's health and development." Id. at 348.

      The trial court found that all the children suffered a harm under prong one.

First, Kara suffered drug withdrawal symptoms at birth as a result of Julissa's

substance abuse. Defendants' "continued inability to provide stability for the


                                                                           A-5048-17T4
                                         7
course of [the] two year litigation is also a cognizable harm." The court opined

that the risk that defendants could not provide day-to-day care for the girls was

"very high" because they "[had] not made significant improvements to their

mental health and substance abuse issues." Finally, the court found that Jorge's

absence from the time of the girls' removal was another example of instability.

      We have affirmed trial court findings of prong one where a parent suffers

from addiction, if it is "entrenched" and has a negative effect on the parent's life

and on the stability of the child's home. N.J. Div. of Youth & Family Servs. v.

H.R., 431 N.J. Super. 212, 223 (App. Div. 2013). For example, in J.N.H., the

Court affirmed a finding of prong one where a mother and child were

affectionate during visitation, but the mother was addicted to drugs, made "no

progress" with rehabilitation, left the child alone to buy drugs, "refuse[d] to take

responsibility for her actions[,] and blame[d] others for her problems." 172 N.J.

at 448–56. See also E.P., 196 N.J. at 105 (where the mother repeatedly relapsed

into addiction, resulting in homelessness, unemployment, and a prison

sentence); N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512 (2004)

(where drug-addicted parents had not completed treatment and did not have

stable housing); K.H.O., 161 N.J. at 349–54 (where addiction prevented the

parent from "providing care and nurture or a stable home"); H.R., 431 N.J.


                                                                           A-5048-17T4
                                         8
Super. at 224 (where father enrolled in drug treatment programs but "routinely

failed to complete them with positive results"). "[P]roof that a child is suffering

from withdrawal symptoms at birth" may also "establish actual harm" to that

child. N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013).

      Kelly, Yvette, and Narissa were subjected to instability beginning when

Julissa sent them to live with relatives in 2014. Kelly suffered from suicidal

ideation and self-harm. The Division's expert psychologist, Dr. Robert Kanen,

opined that the older daughters were "parentified," and too preoccupied with

their parents' issues to engage in age-appropriate developmental and social

activities, and had learned that they could not rely on their parents.

      While Julissa's choice to shield the children from her drug use by sending

them to live with relatives was protective, she failed to fully comply with

substance abuse treatment programs until just a few months before trial. Kara

suffered through withdrawal, and all of the children were subjected to the harms

associated with multiple shifting placements.       The court did not abuse its

discretion in finding that the Division established prong one by clear and

convincing evidence.




                                                                          A-5048-17T4
                                        9
                                  III. Prong Two.

      Julissa argues that the court's finding that she failed to ameliorate her

substance use disorder was unsupported, because the record showed that she

engaged in appropriate treatment and was improving. Jorge similarly contends

that at the time of the trial, he was regularly attending substance abuse services

and "needed only time to complete treatment." He further challenges the court's

findings that he had unstable housing and did not consistently attend visitation,

arguing that he had lived in the same home for years and had missed only three

visits during the life of the case.

      Under prong two of the best interests test, the Division must demonstrate

that a parent is unable or unwilling to correct the circumstances that led to the

agency's involvement or that he or she cannot provide a safe and stable home

for the child, thus delaying permanency. K.H.O., 161 N.J. at 348–49. "The

question is whether the parent can become fit in time to meet the needs of the

child." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 244

(App. Div. 2010).

      The court found that after the children were removed, both defendants

"failed to complete the court ordered substance abuse treatment and have

continued to test positive for illegal substances." It listed several positive drug


                                                                          A-5048-17T4
                                       10
test results and missed appointments at services in support of this finding. The

court also credited Kanen's testimony that defendants "would not be able to

provide a stable and nurturing home for their children" in the foreseeable future.

It also found credible Kanen's testimony that both defendants had "severe

parenting defects" due to their substance abuse, cognitive limitations, and

history of unstable housing and employment.

      As with prong one, a court may consider a parent's substance abuse and

failure to complete treatment when evaluating prong two. The K.H.O. Court

stated:

            the second prong may be met by indications of parental
            dereliction and irresponsibility, such as the parent's
            continued or recurrent drug abuse, the inability to
            provide a stable and protective home, the withholding
            of parental attention and care, and the diversion of
            family resources in order to support a drug habit, with
            the resultant neglect and lack of nurture for the child.

            [K.H.O, 161 N.J. at 353.]

      In P.P., the parents had recently enrolled in drug treatment programs after

years of failing to do so. 180 N.J. at 512. The Court affirmed the termination

of their rights because they had never finished a substance abuse, parenting

skills, or vocational program, were not at time of trial "in a position to care for

their children," and did not present any evidence that they would be in such a


                                                                          A-5048-17T4
                                        11
position soon. Ibid. In H.R., we found that prong two was established where a

father enrolled in substance abuse programs but did not complete them, admitted

continuing to use illegal drugs, and sometimes refused drug testing or

"conducted himself in a manner during urine screens that caused suspicion about

their validity." 431 N.J. Super. at 224.

      Julissa enrolled in and successfully completed a substance abuse program

and continued to attend services with two rehabilitation services. Contrary to

the trial court's findings, she did not "continue[] to test positive for illicit

substances" by the time of the trial, and had apparently been drug-free since she

entered inpatient treatment in late March 2018, a period of approximately two

months.

      Despite the court's apparently factually incorrect finding about Julissa's

recent drug tests, this case is similar to P.P. in that Julissa made some progress

toward complying with treatment and maintaining sobriety closer to trial. As in

P.P., however, the trial court found these efforts were too late to defeat the

Division's evidence of prior relapses, noncompliance, positive drug tests,

coming to visits with the children while under the influence and missing or being

very late to visits, and other issues demonstrating that Julissa was not able to

safely care for her daughters.


                                                                         A-5048-17T4
                                       12
      Jorge's evidence of compliance with treatment is even weaker. Contrary

to his assertion on appeal that he missed only three visits with the girls, he

missed several months' worth of visits from the time of their removal until he

finally made himself known to the Division, and the visits he missed thereafter

were due to arrests for drug and theft-related crimes. The Division's evidence

established that Jorge could not provide a safe and stable home for them.

Kanen's testimony that both defendants would be incapable of parenting their

daughters for the foreseeable future due to their substance abuse issues and

cognitive limitations was unrebutted.

      Both defendants demonstrated an inability to comply with sufficient

services to reunite with their daughters in a timely fashion, and the trial court

was not required to afford them more time to do so while the girls l ingered in

foster care without permanency. The trial court's determination by clear and

convincing evidence that defendants were unwilling or unable to eliminate the

risk of harm to the children under prong two was supported by substantial

credible evidence.




                                                                         A-5048-17T4
                                        13
                               IV. Prong Three.

                             A. Reasonable efforts.

      Julissa contends the Division did not offer her sufficient visitation with

Kara for the two to form a bond, or proper mental health counseling related to

her own childhood trauma. Jorge argues that the Division did not refer him for

individual therapy. He also contends that the Division did not give him adequate

time to complete his substance abuse treatment before pursuing termination.

      The court found that the Division offered both parents substance abuse

and mental health treatment. It recognized Julissa's argument that the treatments

offered were insufficient because "it was unclear whether individual

psychotherapy had been offered." Nevertheless, the court concluded the record

was "replete with the Division's efforts at providing services," but that

defendants' compliance had been "inconsistent at best." It further found that the

Division had provided adequate visitation.

      The court also found that the Division considered all relatives put forth by

defendants, stating that the Division's "exhaustive efforts" had included

"interstate options." The court concluded that the Division established prong

three by clear and convincing evidence.




                                                                         A-5048-17T4
                                      14
      Under N.J.S.A. 30:4C-15.1(c), the term "reasonable efforts to provide

services" under prong three means "attempts by [the Division] to assist the

parents in remedying the circumstances and conditions that led to the placement

of the child and in reinforcing the family structure." "[A]n evaluation of the

efforts undertaken by [the Division] to reunite a particular family must be done

on an individualized basis." In re Guardianship of D.M.H., 161 N.J. 365, 390

(1999). "'Reasonable efforts' will vary depending upon the circumstances of [a

child's] removal." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super.

576, 620 (App. Div. 2007). The Division must focus on reunification, and the

services utilized to facilitate this must be "coordinated" and have a "realistic

potential to succeed." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J.

Super. 451, 488 (App. Div. 2012).        Nevertheless, "[t]he diligence of [the

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

D.M.H., 161 N.J. at 393, particularly where their lack thereof is due to a parent's

"failure to cooperate or follow through" with services and obligations. N.J. Div.

of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 119 (App. Div. 2004).

      The trial court reasonably determined that the Division made diligent

efforts to provide services to defendants. The Division referred the parents to

numerous substance abuse programs, as their drug use was the issue that led to


                                                                          A-5048-17T4
                                       15
the children's removal.     The testimony that both defendants also received

individual therapy and mental health-related counseling at some of their

substance abuse programs was unrebutted and remained consistent during cross -

examination. Jorge's argument that the court should have permitted him more

time to complete substance abuse treatment is unpersuasive and his repeated

noncompliance with such services did not render the Division's efforts

insufficient under prong three. See D.M.H., 161 N.J. at 390; C.S., 367 N.J.

Super. at 119.

      Julissa's argument that the Division did not provide adequate visitation

with Kara to facilitate their bond is unpersuasive. Weekly visits were provided.

As the trial court held, the Division established the "reasonable efforts to provide

services" aspect of prong three by clear and convincing evidence.

                          B. Alternatives to termination.

      Both defendants and the Law Guardian argue that the court did not

adequately consider alternatives to termination. At the time of trial, the Division

had only begun assessing the children's Pennsylvania maternal aunt, and the y

assert that the court erred by continuing the trial without an adjournment to allow

the agency to complete this work. They contend that termination was premature

under the circumstances, and that a remand is necessary to consider whether


                                                                           A-5048-17T4
                                        16
KLG with the aunt would be an appropriate alternative to termination. The

Division has a general policy to "place children with relatives whenever

possible." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568,

579 (App. Div. 2011) (quoting N.J. Div. of Youth & Family Servs. v. M.F., 357

N.J. Super. 515, 527 (App. Div. 2003)).

      As an alternative to termination of parental rights and adoption, under

N.J.S.A. 3B:12A-6(d), a court "shall appoint [a child's] caregiver as a kinship

legal guardian" if it determines that: 1) the parents are "unable, unavailable or

unwilling to perform the regular and expected functions of care and support of

the child"; 2) their incapacity is "unlikely to change in the foreseeable future";

3) the Division has exercised reasonable efforts at reunification but was

unsuccessful and "adoption of the child is neither feasible nor likely"; and 4)

"awarding [KLG] is in the child's best interests." A "[c]aregiver" is a person

over eighteen years old "who has a kinship relationship with the child and has

been providing care and support for the child, while the child has been residing

in the caregiver's home, for either the last [twelve] consecutive months or

[fifteen] of the last [twenty-two] months."      N.J.S.A. 3B:12A-2.      "Kinship

relationship" includes "a family friend or a person with a biological relationship

or legal relationship with the child." N.J.S.A. 3B:12A-2.


                                                                         A-5048-17T4
                                       17
       KLG is intended to provide "an alternative, permanent legal arrangement"

for children when a caregiver is unwilling or unable to adopt. P.P., 180 N.J. at

508.   In a recent decision we emphasized that the record in a case must

demonstrate that a caretaker is "committed unambiguously, unequivocally, and

unconditionally to adoption, regardless of the possible alternative of KLG." N.J.

Div. of Child Protection & Permanency v. M.M., 459 N.J. Super. 246, 273 (App.

Div. 2019). We also determined that the KLG Notification Act, N.J.S.A. 30:4C-

89 to -92, requires that the caregiver be "fully informed of the potential benefits

and burdens of KLG before deciding whether he or she wishes to adopt." Id. at

261, 263. In M.M., the only evidence that the grandmother and great-aunt, who

had been taking care of the children, wanted to adopt was several ambiguous

hearsay statements to that effect, which were undermined by other statements

that these relatives would prefer KLG. Id. at 265–75. We concluded that this

was insufficient, and remanded the matter for further proceedings "to develop

the record more definitively" and thus ensure that the defendants' parental rights

were not terminated prematurely when KLG could have provided an alternative.

Id. at 275. See also H.R., 431 N.J. Super at 233 (remanding to "establish on the

record" that a caregiver aunt had been fully informed about KLG and had

indicated a clear preference to adopt).


                                                                          A-5048-17T4
                                          18
      N.J.S.A. 30:4C-15.1(a)(3) places a burden not only on the Division to

demonstrate to the court that it has explored alternatives to termination including

relative resource placement, but also explicitly on the court to "consider[]

alternatives to termination of parental rights."       During trial, the Division

revealed that it had just the day before heard from Julissa's sister, who had been

ruled out previously but whose circumstances had changed and who apparently

became licensed as a foster parent in Pennsylvania without contacting the

Division. The Division had begun the process of reevaluating the maternal aunt

as a resource placement.

      "The Division need not file a petition to terminate parental rights if a 'child

is being cared for by a relative and a permanent plan for the child can be

achieved without termination . . . .'" K.L.W., 419 N.J. Super. at 579 (quoting

N.J.S.A. 30:4C-15.3(a)).     Additionally, KLG does not remove the natural

parents' obligation to pay child support and maintains the natural parents' right

to visitation with their children. P.P., 180 N.J. at 508. The natural parents also

retain "the right to seek termination of the guardianship and a resumption of

custody if at a later day [they are] able to provide a safe and secure home for the

child[ren]." N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 87

(App. Div. 2003). While the aunt could not have been appointed a kinship legal


                                                                            A-5048-17T4
                                        19
guardian immediately because she had not been caring for the children for the

requisite period of time under N.J.S.A. 3B:12A-2, she may now prefer to act as

a KLG. The record as of the time of trial contained only one hearsay statement

by the aunt, indicating she would care for the girls long-term and was willing to

adopt all four children but "not immediately." Under M.M., this is not the type

of "unequivocal" and "unconditional" statement of a desire to adopt that would

render KLG an unavailable alternative. Because it is now unclear whether KLG

has been fully explored, we remand for clarification.

                                 V. Prong Four.

      Julissa and the Law Guardian contend that termination would do more

harm than good because Kelly, Yvette, and Narissa stated a desire not to be

adopted. Jorge makes similar arguments, and adds that Kanen's testimony was

insufficient to support the court's prong four finding because the doctor did not

individually evaluate the children or perform a comparative bonding evaluation

with any of their then-current foster parents.

      In evaluating prong four, a court must inquire into the child's relationship

with his or her parents. K.H.O., 161 N.J. at 355. There is an inherent risk to

children stemming from the loss of the care of a parent. Ibid. However, a court

must also consider the "paramount" need for children to have "permanent and


                                                                         A-5048-17T4
                                       20
defined parent-child relationships." J.C., 129 N.J. at 26. As a result, prong four

"cannot require a showing that no harm will befall the child as a result of the

severing of biological ties." K.H.O., 161 N.J. at 355.

      Prong four addresses whether termination "will not do more harm than

good," N.J.S.A. 30:4C-15.1(a)(4), and the concept of potential harm must be

"analyzed in terms of the child, not the contesting biological parent." In re

Guardianship of A.A.M., 268 N.J. Super. 533, 546 (App. Div. 1993). As a result,

a court may consider whether a parent has taken steps to eliminate the risk of

harm to the child when deciding whether the Division has established this prong.

See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 286–87 (2007)

(established where father did not eliminate danger and instability from

household); K.H.O., 161 N.J. at 357 (established where mother did not

demonstrate that she would become capable of parenting child "in the

foreseeable future"); H.R., 431 N.J. Super. at 226–27 (established where father

had "been given enough time to show a likelihood of overcoming his

addiction").

      Prong four is considered "a 'fail-safe' inquiry guarding against an

inappropriate or premature termination of parental rights" even where the other

three prongs of the best interests test have been met. F.M., 211 N.J. at 453. For


                                                                         A-5048-17T4
                                       21
example, in E.P. the Court affirmed the trial court's findings that a mother had

endangered her child's welfare through her drug abuse and instability, had not

demonstrated that she was willing and able to remove that harm as of the time

of trial, and had not complied with services until recently. 196 N.J. at 103–05.

It went on to note that the child had been moved through several resource

placements during the life of the case; that none of these placements were pre -

adoptive; and that the child had suffered from mental and emotional distress at

the thought of losing her mother, which had manifested in suicidal ideation and

self-harm. Id. at 99, 108–10. The Court found that there remained only a "slim

hope of adoption" for the teenager, and that "her mother's love and emotional

support" had been "the one sustaining force" in her life. Id. at 109.

      As a result, explaining that "terminating parental rights without any

compensating benefit, such as adoption, may do great harm to a child," the Court

concluded that the trial judge erred by finding that termination would not do

more harm than good under the particular circumstances of that case. Id. at 109–

11. In so holding, it stated that while "permanency must be the Division's goal,"

no authority "has stated that the unlikely possibility of permanency in the future

should outweigh a strong and supportive relationship with a natural parent." Id.

at 110–11.


                                                                         A-5048-17T4
                                       22
      Here, in addressing prong four, the court credited Kanen's testimony that

both defendants had "parenting defects" including substance abuse and cognitive

issues, that were unlikely to change, and presented "a high risk of neglecting the

children" in the future. It also noted Kanen's opinion that Kara would not suffer

any harm if separated from defendants and that the three older girls' "grief" at

losing them "could be mitigated to some degree with guidance and therapy."

      In so finding, the court acknowledged that the Division's plan for all four

children at the time of trial was select home adoption,3 and that there were "no

promises that [they would] remain together nor that they [would] be adopted in

a timely manner." However, the court found that defendants' efforts to comply

with services were "not enough to convince [it] that they will be able to care for

their children in the immediate future."

      Kelly, Yvette, and Narissa, who were adolescents by the time of trial,

firmly expressed a desire not to be adopted. Kanen testified that the three would

suffer "grief" at the loss of their parents, and Kelly in particular displayed mental

health issues including suicidal thoughts and self-harming behavior that may

well have been caused by her unstable situation and separation from her parents.


3
  "'Select home adoption' [is a] process that includes looking for an adoptive
home in New Jersey and registering the child on the national adoption
exchange." E.P., 196 N.J. at 98.
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The E.P. Court cautioned against breaking a child's psychological and emotional

bond to a natural parent "with nothing substituted in its place." E.P., 196 N.J.

at 109 (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611

(1986)). As of the trial date, this was the situation for the children here.

      Since the court's decision was issued in June 2018, the children have been

placed with their aunt, and the Division's plan for them has been changed to

relative adoption. Thus, a comparative bonding evaluation is now appropriate.

While we do not find the court's finding of prong four to be "wide of the mark"

as of the time of the decision, in this unusual factual context, we must reverse

and remand as to prong four and the portion of prong three requiring the court

to consider alternatives to termination. The post-trial developments require a

fresh inquiry. See T.S., 417 N.J. Super. at 250 (remanding for a prong four

inquiry based on post-trial developments).        On remand, the court should

consider whether adoption by the aunt is feasible and likely; whether the aunt

would instead prefer KLG status; and whether, under the circumstances as they

now exist, termination would not do more harm than good. In reevaluating

prong four, the trial court should also consider whether defendants have

continued in their efforts to achieve sobriety post-trial, and whether they could

safely parent the children in the foreseeable future.


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      We need not consider the remaining issues raised by defendants in their

briefs. On remand the record will be reopened and defendants may provide a

foundation to submit the evidence they argue should have been admitted

previously.

      Reversed and remanded for an expeditious hearing consistent with this

opinion. We do not retain jurisdiction.




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