                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1741-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

S.R.,

          Defendant-Appellant/
          Cross-Respondent,

and

R.R.,

          Defendant.


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

          Respondent/Cross-Appellant,

and

Ma.R.,
     a Minor.


           Submitted March 3, 2020 – Decided March 23, 2020

           Before Judges Accurso, Gilson and Rose.

           On appeal from the Superior Court of New Jersey,
           Chancery Division, Family Part, Monmouth County,
           Docket No. FG-13-0038-18.

           Joseph E. Krakora, Public Defender, attorney for
           appellant/cross-respondent (Robyn A. Veasey, Deputy
           Public Defender, of counsel; Anna F. Patras,
           Designated Counsel, on the brief).

           Joseph E. Krakora, Public Defender, Law Guardian,
           attorney for respondent/cross-appellant (Margo E.K.
           Hirsch, Designated Counsel, on the brief).

           Gurbir S. Grewal, Attorney General, attorney for
           respondent (Melissa H. Raksa, Assistant Attorney
           General, of counsel; Christina Anne Duclos, Deputy
           Attorney General, on the brief).

           Joseph E. Krakora, Public Defender, Law Guardian,
           attorney for minor (Linda Vele Alexander, Designated
           Counsel, on the brief).

PER CURIAM

     Defendant S.R. appeals a Family Part judgment terminating her parental

rights to her two daughters, Me.R. (Meredith), born in March 2004, and Ma.R.




                                                                     A-1741-18T3
                                     2
(Mary), born in April 2006. 1 The same judgment also terminated the parental

rights of the children's biological father, R.R. (Ralph), who is not a party to this

appeal.2

      On appeal, defendant seeks reversal of the judgment, contending the

Division of Child Protection and Permanency failed to establish the four prongs

of the "best interests of the child" standard, N.J.S.A. 30:4C-15.1(a), by clear and

convincing evidence. Alternatively, she seeks a remand, claiming the trial court

failed to set forth sufficient findings of fact and conclusions of law as required

by Rule 1:7-4(a). Meredith's law guardian cross-appeals, seeking the same relief

as defendant.3 Mary's law guardian supported termination before the trial court




1
  We use initials and pseudonyms to protect the privacy of the children , see R.
1:38-3(d)(12), and for ease of reference.
2
  The couple's sons, E.R. (Eric), and J.R. (Jack), were not named as parties in
the guardianship action because Eric had reached the age of majority and Jack
had been placed in the legal custody of defendant's mother. While the appeal
was pending, Jack reached the age of majority.
3
   At the time of the guardianship trial, Meredith had been placed in a pre-
adoptive home in Wisconsin. In January 2019, while this appeal was pending,
Meredith was removed from that placement and now resides in a resource home
in New Jersey. Thereafter, Meredith's law guardian filed the present cross-
appeal.


                                                                            A-1741-18T3
                                         3
and, on appeal, joins the Division in urging us to affirm. Having considered the

parties' arguments in light of the record and controlling law, we affirm.

                                       I.

      To place the legal issues in context, we set forth in some detail the facts

and procedural history from the testimony adduced at trial and the voluminous

record before the trial court. 4

      To support its claim that defendant's parental rights should be terminated,

the Division presented the testimony of the two caseworkers, who were

successively assigned to the family after the children's removal; an adoption

supervisor, who testified about the select home adoption process; and David

Brandwein, Psy.D., the Division's expert, who performed psychological

evaluations of, and a bonding evaluation between, defendant and the girls. The

Division also introduced in evidence more than thirty documents, including the

caseworkers' extensive reports; Dr. Brandwein's reports; medical records of

defendant and the children; defendant's drug tests; and rule-out letters.

Defendant neither presented documentary evidence nor called any witnesses.



4
  Defendant's appendix on appeal includes thirty volumes, containing more than
5,000 pages of documents.



                                                                            A-1741-18T3
                                        4
Her testimony was limited to Meredith's then placement in Wisconsin.5 The trial

court interviewed both girls in camera pursuant to Rule 5:12-4(b). The trial

spanned four non-consecutive days during September, October, and November

2018.

        The family first came to the Division's attention in August 2010, when

Meredith was six years old and Mary was four. Allegations that the children

were inadequately supervised and the home was unkempt were unfounded.

Similar referrals followed over the next six years, but none of the allegations

was substantiated.

        Relevant to this appeal, during a substance abuse evaluation arranged by

the Division in July 2013, defendant tested positive for benzodiazepines,

oxycodone, buprenorphine (the active ingredient in Suboxone), and opiates.

Defendant denied illegal drug use and ingesting Suboxone, claiming her doctor

had prescribed Xanax (a benzodiazepine), Percocet, and Fentanyl on an "as

needed" basis the previous year. But, the doctor told the Division he only had

prescribed Xanax. Diagnosed with opioid abuse, defendant was recommended

for intensive outpatient treatment. She agreed to attend a program but failed to


5
   Defendant testified that Meredith wished to return to this State to be near her
friends and family. As noted above, the Division has returned Meredith to New
Jersey, thereby rendering that issue moot.
                                                                          A-1741-18T3
                                        5
follow through. The Division sought an order compelling defendant to comply,

but the court denied the Division's request for care and supervision of the family.

      Nearly two years later, in April 2015, defendant again tested positive for

benzodiazepines and opioids. The Division referred defendant for a substance

abuse evaluation, but she neither completed the evaluation nor submitted

additional urine samples.      Two months later, defendant tested positive for

similar substances and declined to complete a substance abuse evaluation.

      The precipitating event that led to the guardianship complaint occurred in

March 2016, when Mary told a school worker she had accompanied her father

to his friend's house "to get his medicine." According to Mary, her father and

his friend sat in a car "for [ten] minutes" and took "the same medicine." Mary

believed her father had ingested "Xany," but she was not sure. Mary said her

father brought the "medicine back home to share with" defendant. She said her

parents usually took the medicine at nighttime, but she also saw them "cut the

medicine in the morning and take a little." Mary was afraid; she did not want

her parents to get in trouble or go to jail.

      Mary repeated the same account to the Division, adding she had seen her

parents crush "Xanies, greens and blues," and use a straw to "slurp" their

medication; on one occasion, Mary saw her parents "use their nose" to do so.


                                                                           A-1741-18T3
                                          6
Mary did not feel safe at home. She was angry with her parents for taking too

much medication because it made them tired and cancel after-school plans with

her. Meredith denied her parents used illegal drugs, but said their medication

made them drowsy. The children reiterated the same accounts during their

interviews with law enforcement.

       Both parents were charged with child endangerment and detained in the

county jail.6 Although defendant acknowledged she had abused Xanax in the

past, she denied illegal drug use at the time of the removal. Defendant claimed

she had been prescribed Xanax for a seizure she had suffered during the prior

year, but she failed to produce a Xanax prescription or pill bottle.

       By the time of the guardianship trial, the Division had investigated and

ruled out four maternal relatives and a family friend as potential placements for

the girls, whose placements changed repeatedly after their removal. During the

first year, Meredith and Mary were placed together in four different resource

homes. In April 2017, however, the girls experienced significant health issues:

Meredith underwent a cardiac ablation to correct supraventricular tachycardia;

Mary was diagnosed with Type I diabetes following a nine-day hospitalization

for diabetic ketoacidosis. Meredith and Mary have not lived together since that


6
    Apparently, criminal charges against both parents were dismissed.
                                                                         A-1741-18T3
                                        7
time. Meredith was placed in three different resource homes after a short stay

in a shelter following her hospitalization; Mary was placed in a regular resource

home after a three-month stay at two medical group homes following her

hospitalization.

      During its many years of involvement with the family, the Division

offered numerous services to defendant, attempting to remediate the substance

abuse issues that led to the removal of her children. Those services included

referrals for substance abuse evaluations and treatment; psychiatric and

psychological evaluations and treatment, including in-home therapy; and parent

mentoring services. The Division provided transportation when needed.

      Defendant was mostly non-compliant with the services offered. Between

July 2016 and November 2017, defendant missed nearly twenty substance abuse

evaluations. She tested positive on six occasions for various substances, such

as benzodiazepines; opiates, including morphine; and opioids, including heroin

and oxycodone. As she did prior to the removal, defendant attributed her

positive drug test results to her prescribed medication. Defendant refused to

comply with recommended inpatient substance abuse treatment, and failed to

complete an intensive outpatient program that she had selected.         She was




                                                                         A-1741-18T3
                                       8
discharged from a Division-recommended individual therapy services program

for noncompliance, then failed to attend another program that she had selected .

      The Division facilitated weekly therapeutic and supervised visitation with

Meredith and Mary, which often took place three times per week. The first

caseworker testified defendant generally was compliant and consistently

available for visits when they occurred in the home where she resided with her

grandparents. But after visits were moved to the community, "there were more

cancellations or no-shows." Defendant typically attributed missed visits to her

seizures and other medical issues, or Ralph's hospitalizations.

      According to the caseworkers, defendant appeared to be under the

influence of substances during more than a dozen visitations. For example,

defendant was "blinking slowly and deliberately . . . and looking around the

room wildly" during a visit in April 2017.          Thereafter, she refused the

caseworker's request for a drug screen. Four months before the commencement

of trial, defendant similarly appeared to be under the influence during a doctor's

appointment for Mary.

      The first caseworker also testified about the Division's concerns that

defendant repeatedly provided the children with "sweets, candy, soda, [and] fast

food" during visitations, even though she was aware of the girls' dietary


                                                                          A-1741-18T3
                                        9
restrictions. For example, during a visit, defendant offered Mary an ice cream

cone, which caused the child to cry and remind defendant she was unable to eat

ice cream. Similarly, after Meredith's cardiologist had advised she could not

consume chocolate or caffeine pending the cardiac ablation procedure,

defendant offered Meredith a chocolate bar and chocolate ice cream, which

upset Meredith.

      Dr. Brandwein evaluated defendant on two separate occasions. 7           He

opined defendant was unable to safely parent her daughters due to her substance

abuse and failure to comply with the Division's services. He found defendant's

insight and judgment were poor because "she was loath to accept any

responsibility for her own behavior and denied, minimized, and rationalized the

incidents that have led to her children remaining in the Division's custody for

over two years."

      Dr. Brandwein's diagnostic impression of defendant included:

               • Major Depressive Disorder, recurrent, moderate,
                 with anxious distress, with panic attacks
               • Anxiolytic Use Disorder, severe
               • Opioid Use Disorder, severe

7
   Because defendant arrived late for her appointment, Dr. Brandwein could not
complete her evaluation in one visit. He testified defendant's level of anger and
irritation at the caseworker – who was unable to drive defendant home from the
appointment – was "highly inappropriate" and "off the charts" in the presence
of her daughters.
                                                                         A-1741-18T3
                                      10
               • Paranoid and Dependent Personality Patterns

He opined defendant's diagnoses of severe anxiolytic use disorder and severe

opioid use disorder impaired her ability to care for her daughters. Dr. Brandwein

explained a "diagnosis of severe anxiolytic use disorder" is the need "to take

more and more . . . medication to feel [its] effect," which impacts the person's

functioning and leads to "vocational, familial or legal problems."

      Although Dr. Brandwein observed the Division had offered defendant "a

variety of services to address these conditions," he found she had not engaged

in any of those services "in a meaningful way" and "presented with an open

mistrust of her service providers, seeking to change them when they d[id] not

see things her way" or "after she was confronted by them about her own

behavior." He believed additional services likely would have been met "with

the same fate as previous services" because defendant demonstrated "little to no

propensity for behavior change." Defendant's resistance to services suggested

she was "more interested in using substances than parenting" her daughters.

      In sum, Dr. Brandwein stated defendant

            denie[d] substance-related problems that are . . . quite
            easy to see based upon the results of her urine
            screenings (repeated positives for morphine, likely
            related to heroin use); show[ed] little motivation to stop
            taking habit-forming medication; and ha[d] been non-
            compliant with her medication regimen for a seizure

                                                                         A-1741-18T3
                                       11
            disorder. Additionally, [she] blame[d] everyone else
            but herself for the reasons her children have not yet
            returned to her care, including [Ralph] and the
            Division, and seem[ed] painfully averse to the kind of
            introspection that could produce behavior change.

      Dr. Brandwein found Meredith and Mary were bonded to defendant and

clearly viewed her as their mother "from a physical and psychological

perspective." Due to their multiple placements, neither child had developed "a

relationship with other adult caregivers that, from a psychological perspective ,

could approximate or substitute for the parental relationship." Nonetheless, Dr.

Brandwein opined that the "health of the bond" with defendant was "quite poor"

and the girls' relationship with defendant was "co-dependent, unhealthy, and

based on a view of [defendant] that conforms more with fantasy than reality."

Importantly, the doctor determined defendant prioritized her own needs over

those of her daughters.

      Dr. Brandwein expressed his support for select home adoption because

defendant had "clearly chosen illegal drug use and/or habit-forming prescription

medications over being reunified" with the children, and nothing had c hanged

since their removal "two years and eight months" prior to his evaluation. He

noted "both girls appear to want their parents, from a physical and psychological

perspective, more than their parents want them." Although he acknowledged


                                                                         A-1741-18T3
                                      12
that "some harm" would befall the girls if they no longer had any contact with

defendant, Dr. Brandwein opined "more harm w[ould] be done by these children

waiting for . . . defendant to be the parent she need[ed] to be for these girls."

       Notably, Dr. Brandwein said Meredith and Mary were the most resilient

children he had ever evaluated. "They have persisted and maintained hope for

the future even though they have moved from place-to-place, been subjugated

to second place by their parents due to their parents' drug use, and dealt with

serious medical issues." Both girls were "very intelligent." They "ha[d] age-

appropriate interests, age-appropriate insight and judgment, and express[ed]

themselves and their wishes quite skillfully."

       In her brief testimony, Meredith told the court she wanted to live with her

parents, but she understood the gravity of their drug abuse prevented

reunification. Meredith told the court she liked her resource family and felt

"good" about the prospect of adoption.8          She expressed her preference to

continue visitation and telephone contact with defendant, even if she were

adopted. Meredith preferred the court "make that ultimate decision."

       Mary was more vocal about the impact of defendant's noncompliance, and

her desire for permanency. Mary told the court she would prefer to live in a


8
    As noted, Meredith is no longer placed in an adoptive home.
                                                                            A-1741-18T3
                                        13
foster or adoptive home, and continue her visits with defendant. She said

visitations mostly went well, but she became "really upset" and "screamed" at

defendant during a then recent visit because her mother "was dozing in and out."

Mary thought defendant might have had taken "a pill."

      Mary acknowledged she had desired to return home "two years" prior, but

now that she was "older" she could "express [her]self more and tell the truth and

not hide behind saying that, oh, my mom's not doing this, my mom's just tired."

Although Mary preferred the court determine permanency, she knew her parents'

rights would likely be terminated as a result of their noncompliance. Mary

elaborated:

              [I]t's heartbreaking because I thought that they would
              be the parents that they told me that they would be
              where they would do what they were supposed to be
              doing and not lie to me in my face, telling me that
              they've been going to all the therapy and they haven't
              used anything, when actually they both have. And you
              know, it's kind [sic] like hard because they said that
              they go to therapy and I find out all this and then they
              don't. It's like you lied to me and you've been lying to
              me for like two, three years, so maybe longer than that,
              so.

                    ....

              I know that I won't make the same mistakes as my
              parents will and I hope that they really do get their act
              together. I mean, . . . I do want to live in a home that I
              can actually . . . call home and that they won't lie

                                                                           A-1741-18T3
                                         14
            straight in my face, telling me things that it's [sic] not
            true. So I know that I really want a family that I can
            really call my mom and dad and not be like this is my
            mom but she uses stuff, this is my dad but he uses drugs.
            Like I don't want to say that. I want to say this is my
            mom and she does the right things, or this is my dad
            and he does the right things.

Mary expressed fear of another removal if she were reunited with defendant and

she started using drugs again.

      The adoption supervisor explained select home adoption is a permanency

goal available for children who are not placed in a resource home that is willing

to adopt. As of September 2018, the Division had identified two Division-

licensed adoptive homes in New Jersey that were willing to accept children with

similar ages and medical and other needs as Meredith and Mary. If in-state

placement efforts proved unsuccessful, the Division would then expand its

search to include out-of-state adoptive homes following termination of parental

rights when the children were considered "legally free."

      According to the adoption supervisor, Meredith did not have any special

needs or diagnoses and performed "well in school . . . behaviorally and

emotionally."   Mary has some special needs, having been diagnosed with

adjustment disorder, attention deficit/hyperactivity disorder, and Type I

diabetes.   But, Mary managed her diabetes independently and her medical


                                                                         A-1741-18T3
                                       15
diagnosis would not be a barrier to locating an adoptive home. Acknowledging

"[i]t's not easy" to find adoptive homes for teenagers, the adoption supervisor

maintained it also was not impossible. She has had success finding adoptive

homes for fourteen-year-old girls like Meredith, and twelve-year-old girls with

special needs comparable to Mary's.

       Following summations, the trial judge issued an oral decision and the

judgment under review. These appeals followed.

                                         II.

      The applicable law is well established. It is axiomatic that parents have a

constitutionally protected right to the care, custody, and control of their children.

N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). But that

right is not absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527,

553 (2014). "It is a right tempered by the State's parens patriae responsibility to

protect children whose vulnerable lives or psychological well-being may have

been harmed or may be seriously endangered by a neglectful or abusive parent."

F.M., 211 N.J. at 447. 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). Importantly, "[c]hildren must not languish

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


                                                                             A-1741-18T3
                                        16
that resulted in an out-of-home placement." N.J. Div. of Youth & Family Servs.

v. S.F., 392 N.J. Super. 201, 209 (App. Div. 2007).

      To effectuate those concerns, the Legislature created a test for determining

whether a parent's rights must be terminated in the child's best interests.

N.J.S.A. 30:4C-15.1(a) requires that the Division prove the following four

prongs 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.
             Such harm may include evidence that separating the
             child from his resource family parents would cause
             serious and enduring emotional or psychological harm
             to the child;

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

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

      The four prongs are not independent of one another. N.J. Div. of Child

Prot. & Permanency v. T.D., 454 N.J. Super. 353, 379 (App. Div. 2018). Rather,

                                                                          A-1741-18T3
                                      17
they "are interrelated and overlapping" and "designed to identify and assess what

may be necessary to promote and protect the best interests of the child." N.J.

Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006).

Parental fitness is the crucial issue. In re Guardianship of K.H.O., 161 N.J. 337,

348 (1999). Determinations of parental fitness are fact sensitive and require

specific evidence. Ibid.

      Our review of a judgment terminating parental rights is limited. R.G., 217

N.J. at 552.    "[T]he trial court's factual findings should be upheld when

supported by adequate, substantial, and credible evidence."         Ibid.   This is

because "the trial court . . . has the opportunity to make first -hand credibility

judgments about the witnesses who appear on the stand" and because "it has a

'feel of the case' that can never be realized by a review of the cold record." N.J.

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

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

credibility of witnesses is an important factor, the trial court's conclusions must

be given great weight and must be accepted by the appellate court unless clearly

lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M.,

375 N.J. Super. 235, 259 (App. Div. 2005).




                                                                            A-1741-18T3
                                       18
      We recognize the "special expertise" of the Family Part "by virtue of its

specific jurisdiction." R.G., 217 N.J. at 553. "Only when the trial court's

conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate

court intervene and make its own findings to ensure that there is not a denial of

justice." E.P., 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v.

G.L., 191 N.J. 596, 605 (2007)). That said, "[a] trial court's interpretation of the

law and the legal consequences that flow from established facts are not entitled

to any special deference." Manalapan Realty, LP v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995).

                                        III.

                                        A.

      At the outset, we reject the arguments advanced by defendant and

Meredith's law guardian that we must vacate the judgment because the trial court

failed to comply with Rule 1:7-4(a). Although the trial court's findings of fact

and conclusions of law were anomalously terse, those shortcomings are not fatal

to our meaningful review or to the underlying judgment. See N.J. Div. of Child

Prot. & Permanency v. M.C., 456 N.J. Super. 568, 588 (App. Div. 2018).

      "In a non-jury civil action, the trial court shall make findings of fact and

state its conclusions of law." N.J. Div. of Youth & Family Servs. v. M.C. III,


                                                                            A-1741-18T3
                                        19
201 N.J. 328, 342 (2010). "[T]he trial court must state clearly its factual findings

and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83

N.J. 563, 570 (1980). "Failure to make explicit findings and clear statements of

reasoning 'constitutes a disservice to the litigants, the attorneys, and the

appellate court.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting Curtis, 83

N.J. at 569-70). Ordinarily, non-compliance with Rule1:7-4(a) would impede

"meaningful appellate review." M.C., 456 N.J. Super. at 588.

      While the trial court's oral decision could have been more organized and

detailed, it referenced the controlling legal standard, addressed the key facts in

evidence, and adequately correlated those facts with its legal conclusions. The

court also made credibility determinations about the unrefuted testimony of the

Division's expert witness that warrant our deference. F.M., 375 N.J. Super. at

259. Further, we agree with the Division and Mary's law guardian that there is

ample evidence in the record to support each prong of the best interests test. See

F.M., 211 N.J. at 448. Accordingly, our review of the court's decision is not

hampered. M.C., 456 N.J. Super. at 588.




                                                                            A-1741-18T3
                                        20
                                        B.

                                 Prongs I and II

      We first consider defendant's argument that her positive drug test results

were insufficient evidence to support the court's prong one conclusion, and "a

delay in permanency is an insufficient basis for making a prong two

determination." Similarly, Meredith contends the Division failed to prove she

was endangered by defendant or would continue to be harmed if returned to

defendant's care. Meredith also claims defendant's "complex medical problems

resulted in her inability to complete all the tasks required within the strictures

of the law," and the Division "failed to present any data to support the contention

that select home adoption would lead to permanency."             We reject these

contentions.

      Relevant here, "[w]hen the condition or behavior of a parent causes a risk

of harm, such as impermanence of the child's home and living conditions, and

the parent is unwilling or incapable of obtaining appropriate treatment for that

condition, the first subpart of the statute has been proven." N.J. Div. of Youth

& Family Servs. v. H.R., 431 N.J. Super. 212, 223 (App. Div. 2013); see also

N.J. Div. of Youth & Family Servs. v. L.M., 430 N.J. Super. 428, 444 (App.

Div. 2013) (holding that a parent's "continued drug use, lack of appropriate


                                                                           A-1741-18T3
                                       21
housing, and failure to attend treatment, clearly posed a risk to the children" and

satisfied prong one of the best interests test).

      The second prong "relates to parental unfitness," K.H.O., 161 N.J. at 352.

"[T]he inquiry centers on whether the parent is able to remove the danger facing

the child." F.M., 211 N.J. at 451. This prong is satisfied "by demonstrating that

the parent has not cured the problems that led to the removal of the child." H.R.,

431 N.J. Super. at 224. "In other words, the issue becomes 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); see also N.J. Div. of Youth & Family

Servs. v. P.P., 180 N.J. 494, 512 (2004) (holding that prong two was proven by

clear and convincing evidence where the parents had "significant and long -

standing substance abuse histories," repeatedly failed "to comply with DYFS

recommendations and court orders for services," and "were not in a position to

care for their children" at the time of trial).

      As is often the case, the trial court's findings regarding the first prong,

here, informed and overlapped the second. See R.L., 388 N.J. Super. at 88. The

court's prong one and prong two findings not only focused on defendant's

"severe and pervasive drug problems," but also her repeated positive drug tests


                                                                           A-1741-18T3
                                         22
during the litigation, and her noncompliance with Division-offered drug

treatment, including the failure to commence recommended inpatient treatment.

      To support its findings, the court cited Dr. Brandwein's unrefuted

testimony – which it deemed "very, very credible" – that defendant was not

capable of parenting. The court noted defendant failed to realize she had

substance abuse problems and instead opted to blame others for the Division's

involvement. Given defendant's history of noncompliance, the court determined

"the likelihood that [she is] going to change and start doing something now at

this particular point is just unrealistic for any court to expect." As detailed

above, the record is replete with evidence supporting the court's decision. See

P.P., 180 N.J. at 512.

      Moreover, Meredith's focus on the "actual harm" component of prong one

is misplaced. It is well settled that the Division need not demonstrate actual

harm to satisfy prong one.       A.G., 344 N.J. Super. at 440; see also In re

Guardianship of D.M.H., 161 N.J. 365, 383 (1999) ("Courts need not wait to act

until a child is actually irreparably impaired by parental inattention or neglect.").

As is the case here, the harm may be established by "a delay in establishing a

stable and permanent home." D.M.H., 161 N.J. at 383.




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                                     Prong III

      Turning to prong three, neither defendant nor Meredith argue the Division

failed to address defendant's substance abuse problems, but they assert many of

the "services" provided by the Division, "such as case[-]planning services,

evaluation and visitation," were "simply" part of its "job." They claim the

Division failed to assist defendant with managing her seizure disorder.

Defendant also claims the court failed to address kinship legal guardianship

[KLG] as an alternative to termination of parental rights. Their arguments are

unavailing.

      The third prong of the best interests test requires the Division to make

diligent efforts to reunite the family. K.H.O., 161 N.J. at 354. Reasonable

efforts vary with the circumstances. R.G., 217 N.J. at 557. Those efforts

generally include consulting with the parents, developing a reunification plan,

providing services to support the reunification effort, and facilitating visitation.

M.M., 189 N.J. at 281. Parents must actively participate in the reunification

plan through "genuine and successful efforts to overcome the cause of the

removal." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437

(App. Div. 2009). "The 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.


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      We recognize the trial court summarily stated its findings concerning the

Division's reasonable efforts to provide services.     Nonetheless, as detailed

above, the record fully supports the multitude of services offered to defendant

to address her substance abuse issue. Those efforts were sufficiently tailored to

"provide services to help [defendant] correct the circumstances which led to the

child[ren]'s placement outside the home." N.J.S.A. 30:4C-15.1(a)(3); M.M.,

189 N.J. at 285. Those circumstances pertained to defendant's substance abuse,

not her seizures.   Significantly, the record is devoid of any evidence that

defendant requested assistance obtaining treatment for her seizures or that they

interfered with her ability to parent. Indeed, defendant had medical insurance

and was treating with various neurologists during the pendency of the litigation.

      Little need be said concerning defendant's argument that the trial court

failed to consider KLG where, as here, the Division investigated defendant's

preference that her friend become the girls' kinship legal guardian.          The

Division, however, ruled-out defendant's friend because he lacked housing and

self-reported he was "not stable." As mentioned above, the Division also ruled

out four maternal relatives. Accordingly, this is not a case in which the Division

"ha[d] been lax or capricious in its assessment of . . . timely-presented

alternative caretakers." N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J.


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Super. 69, 87 (App. Div. 2013). Because no one was available to serve as a

kinship legal guardian for Meredith and Mary by the time of trial, we discern no

error in the court's failure to consider KLG as an alternative to termination of

parental rights. See E.P., 196 N.J. at 105 (quoting P.P., 180 N.J. at 508-09)

("Although a court may appoint a kinship legal guardian when adoption of the

child is neither 'feasible nor likely,' . . . at the end of the family court hearings,

there was no person available to serve as a kinship legal guardian.").

                                      Prong IV

      Addressing the fourth prong, defendant contends the court overlooked th e

bond between her and the girls, their desire to return home, and the uncertainties

inherent in the select home adoption process. Meredith asserts "it defies logic

to argue that severing a teenager's only bond [with her mother] would not do

more harm than good" given the child's desire for reunification.

      The fourth prong "is related to the first and second elements of the best

interest standard, which also focus on parental harm to the children," D.M.H.,

161 N.J. at 384, and "serves as a fail-safe against termination even where the

remaining standards have been met." E.P., 196 N.J. at 108. "[A] child's need

for permanency is an extremely important consideration pursuant to this prong."

R.G., 217 N.J. at 559.


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                                         26
      Where, as here, termination of parental rights is predicated upon the

parent's unfitness and not the child's strong bond with a resource family, the

salient inquiry under prong four involves consideration of the children's need

for permanency and the parent's ability – or inability – to provide the children

with a safe and stable home "in the foreseeable future." N.J. Div. of Youth &

Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996). But, "[a]

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

plan that will satisfy the child's needs." Ibid.; see also N.J. Div. of Youth &

Family Services v. A.W., 103 N.J. 591, 611 (1986) (citation omitted)

(acknowledging 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").

      Moreover, in E.P., our Supreme Court reversed termination of a mother's

parental rights to her twelve-year-old daughter that "was based in large part on

the mother's addiction to drugs, psychological problems, and unstable lifestyle."

196 N.J. at 92. The Court concluded the Division had not proven "by clear and

convincing evidence that termination would not do more harm than good," even

though it had met its burden under prongs one, two, and three. Id. at 110-11.


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The Court noted the mother and daughter were bonded, and there was "no

prospect of the daughter's adoption on the horizon." Id. at 92. Importantly,

however, the mother in E.P. was "on a rehabilitative path--free of drugs for some

time, gainfully employed, and with stable housing." Ibid.

      In support of its prong four conclusion, the court cited Dr. Brandwein's

testimony – unrebutted on this record – that termination of parental rights would

not do more harm than good, even in the face of select home adoption. The

court acknowledged the girls were bonded to defendant, but accepted Dr.

Brandwein's opinion that the bond was unhealthy. Given the girls' positive

qualities and maintenance of their medical issues, the court concluded select

home adoption was feasible. Dr. Brandwein's assessment concerning the girls'

resilience supports the court's finding. The court also appropriately considered

the children's wishes, although not dispositive, as expressed during the in

camera interviews. E.P., 196 N.J. at 113 (explaining that when analyzing the

fourth prong, it is appropriate for the court to consider "the wishes of a child

over the age of ten, who has reached a level of maturity that allows the child to

form and express an intelligent opinion" while remaining "mindful that

children's wishes may often not be in their own best interests"). The court

recognized Meredith desired to return home, but also noted both girls were


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realistic and open to the plan of adoption if they could not be reunified with

defendant.

      The record supports the court's implied conclusion that, due to her

untreated substance abuse issues, defendant was either unwilling or unable to

provide a safe and stable home for Meredith and Mary "in the foreseeable

future," B.G.S., 291 N.J. Super. at 593, and could not provide the girls with the

permanency to which they are entitled. Unlike the mother in E.P., 196 N.J. at

92, defendant was not drug free at the time of the guardianship trial. As stated

above, Dr. Brandwein supported select home adoption under the circumstances

of this case, and the adoption supervisor discussed the efforts the Division would

make to find adoptive homes for the girls as soon as they are "legally free."

      We acknowledge the evidence supporting the fourth prong presents a

closer call than the other three prongs. But, we have also recognized "[a] child

cannot be held prisoner of the rights of others, even those of . . . her parents.

Children have their own rights, including the right to a permanent, safe and

stable placement." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super.

76, 111 (App. Div. 2004). While termination of defendant's parental rights does

not guarantee Meredith and Mary will achieve permanency through select home

adoption, a reversal in this case would surely relegate the children to a limbo


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                                       29
status antithetical to their right to a permanent home. Contrary to the arguments

advanced by defendant and Meredith, neither the girls' bond with defendant –

including Meredith's desire to reunify with her – nor the uncertainties inherent

in the select home adoption process, warrants reversal when viewed in context

of the evidence in the trial record that supports termination.

                                       ***

      In sum, while we do not endorse the trial court's rambling discussion of

the trial evidence, we are convinced by our own independent assessment of the

record that its conclusions are "supported by substantial and credible evidence

on the record" and thus entitled to our deference. F.M., 211 N.J. at 448 (citations

omitted).

      To the extent we have not specifically addressed the remaining arguments

advanced by defendant and Meredith, we conclude they lack sufficient merit to

warrant discussion in our written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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