                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0498-17T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

B.B.,

          Defendant-Appellant,

and J.R.,

     Defendant.
_____________________________

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

     a Minor.
_____________________________

                    Submitted April 3, 2019 – Decided May 15, 2019

                    Before Judges Accurso, Vernoia and Moynihan.
            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Monmouth County,
            Docket No. FG-13-0027-17.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Catherine F. Reid, Designated Counsel, on
            the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jason W. Rockwell, Assistant Attorney
            General, of counsel; Deirdre A. Carver and Joann M.
            Corsetto, Deputy Attorneys General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Joseph H. Ruiz, Designated
            Counsel, on the brief).

PER CURIAM

      Defendant B.B. (Bill) appeals from a judgment of guardianship entered

after a three-day trial terminating his parental rights to his daughter, B.R. (Beth)

– who was born July 26, 2014 to her mother defendant J.R. (Jill) 1 – and awarding

guardianship to the New Jersey Division of Child Protection and Permanency

(the Division). 2   The trial court's conclusions are supported by competent




1
  Jill entered an identified surrender of her parental rights. She is not a part of
this appeal.
2
  We utilize the pseudonyms for the parties and the child used in some of the
merits briefs to protect their privacy, preserve the confidentiality of these
proceedings, and for the reader's convenience. R. 1:38-3(e).
                                                                            A-0498-17T4
                                         2
evidence and the best interests of the child are served by termination of Bill's

parental rights; thus, we affirm.

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

limited." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

"The general rule is that findings by the trial court are binding on appeal when

supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154

N.J. 394, 411-12 (1998). We accord even greater deference to the judge's fact-

finding "[b]ecause of the family courts' 'special jurisdiction and expertise in

family matters.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328,

343 (2010) (alteration in original) (quoting Cesare, 154 N.J. at 413). We will

not disturb the trial judge's factual findings unless they are "so wide of the mark

that a mistake must have been made." N.J. Div. of Youth & Family Servs. v.

M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty Inc. v. BMW of

N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)).

      "Where the issue to be decided is an 'alleged error in the trial judge's

evaluation of the underlying facts and the implications to be drawn therefrom,'

[this court] expand[s] the scope of . . . review." N.J. Div. of Youth & Family

Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269

N.J. Super. 172, 188-89 (App. Div. 1993)). The trial judge's legal conclusions


                                                                           A-0498-17T4
                                        3
and the application of those conclusions to the facts are subject to plenary

review. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995).

      The Legislature has declared, as a matter of public policy, "[t]hat the

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

being in the interests of the general welfare . . . ." N.J.S.A. 30:4C-1(a). Parental

rights, however, are not inviolable. N.J. Div. of Youth & Family Servs. v. A.W.,

103 N.J. 591, 599 (1986). "The balance between parental rights and the State's

interest in the welfare of children is achieved through the best interests of the

child standard." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Before

parental rights may be terminated, the Division must 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;



                                                                            A-0498-17T4
                                         4
            (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); see also A.W., 103 N.J. at
            604-11.]

The standards "are not discrete and separate; they relate to and overlap with one

another to provide a comprehensive standard that identifies a child's best

interests." K.H.O., 161 N.J. at 348.

      Bill contends the trial judge misunderstood the legal test and burden of

proof applicable to termination of parental rights cases, evidenced by several

comments made by the judge. In assessing Bill's averment that the judge

believed the Division had the burden only to prove that it was unsafe to return

the child to Bill, we consider the context of the judge's statement:

            [Bill's attorney] MS. NEWSHAM: But Your Honor,
            this witness [Dr. Brandwein] is being offered to say that
            this child will suffer harm, that's part of the fourth
            prong, that the harm to the child, terminating my
            client's rights will not be more harmful to the child.
            This witness through the Division is saying that –

            THE COURT: Ms. Newsham, I don't think you
            understand. The Division doesn't have to prove that the


                                                                         A-0498-17T4
                                        5
            current placement is the best and finest placement in the
            entire world. That's not their obligation.

            MS. NEWSHAM: I agree –
            THE COURT: All they have to prove is that it's unsafe
            to return the child to your client.

             MS. NEWSHAM: I understand that, Your Honor.

      The judge was not commenting on the Division's overall burden. He was

ruling on the Division's objection to Bill's counsel's use of the Division's expert

in psychology, Dr. David Brandwein, "to render some kind of opinion on

something we didn't ask him to evaluate" regarding the assessment of Bill's

cousin, S.R., as a possible resource placement. Inasmuch as the fourth prong of

N.J.S.A. 30:4C-15.1(a) requires balancing the potential future harm from

retaining parental rights with the potential future harm from termination of those

rights, the judge did not err in the limited context relating to that prong. See

N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108-10 (2008).

      Defendant also contends the judge "misidentified the applicable burden of

proof" at a pretrial conference 3 "when . . . the [judge] stated three times that



3
  As noted by the Law Guardian's merits brief, the citation to the May 18, 2017
transcript in Bill's merits brief is incorrect; there is no reference in the cited
portions in that transcript. The statements appear in the June 27, 2017 trial
transcript.


                                                                           A-0498-17T4
                                        6
statutorily the burden of proof shifted and it was Bill's burden to prove that he

should have 'custody' of Beth." The comments were made prior to the start of

the trial when counsel and the judge were reviewing documentary evidence,

including Bill's judgment of conviction for endangering the welfare of a child,

N.J.S.A. 2C:24-4(a). In ruling the judgment of conviction was admissible, the

judge said:

              Well, I think [the judgment of conviction] clearly has
              relevance and I don't see why, personally I have not
              found that the statute has been used to preclude
              supervised visitation, the reason being that if there's a
              burden shifting that doesn't mean the defendant can't
              prove that it would be safe and appropriate for him to
              have custody. It does shift the burden. But if you
              preclude visitation, supervised, then basically where do
              you get to a bonding situation, you've precluded the
              defendant from even coming forward with that
              information. And you know, I have not necessarily
              precluded supervised visitation as long as it's safe and
              appropriate. So I don't see that that's inconsistent. And
              I think it's admissible, all right.

      The statute is not expressly mentioned in the transcript, but Bill suggests

in his merits brief that it may be a burden-shifting statute found in Title Nine.

From the context of the colloquy between the judge and both counsel, it is

apparent they were discussing the impact the conviction would have on custody

and visitation, not on termination of parental rights. In that N.J.S.A. 9:2-4.1(b)

provides that a person convicted of endangering a child's welfare "shall not be

                                                                          A-0498-17T4
                                         7
awarded the custody or visitation rights to any minor child, except upon a

showing by clear and convincing evidence that it is in the best interest of the

child for such custody or visitation rights to be awarded," the judge's statement

did not conflate the burdens of proof. Bill's attempts to use out-of-context

statements to show the judge misconstrued the law are gainsaid by the judge's

oral opinion in which he correctly stated the burden: "I find that all four prongs

have been met by clear and convincing evidence."

      Bill also claims the judge erred in employing a "working backwards"

analysis "from the starting point of a three-year-old girl, who had been with her

foster parents for over two years." Bill urges that the proper analysis should

have started with Beth's birth. We determine this argument is without sufficient

merit to warrant discussion in this opinion. R. 2:11-39(e)(1)(E). The judge

simply addressed Bill's defenses before analyzing the four statutory prongs.

While we find that approach was unusual, it was not improper. We consider this

appeal, not from the trial judge's reasoning, but from his ruling, which we will

now examine. See N.J. Div. of Child Protect. & Permanency v. K.M., 444 N.J.

Super. 325, 333-334 (App. Div. 2016) ("It is a long settled principle of appellate

jurisprudence that 'an appeal is taken from a trial court's ruling rather than




                                                                          A-0498-17T4
                                        8
reasons for the ruling.'" (quoting State v. Adubato, 420 N.J. Super. 167, 176

(App. Div. 2011))).

      In determining if the Division met its burden with regard to the first prong,

we consider "whether the parent has harmed the child or may harm the child in

the foreseeable future." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J.

Super. 76, 113 (App Div. 2004) (citing A.W., 103 N.J. at 607). The Division

"does not have to wait 'until a child is actually irreparably impaired by parental

inattention or neglect'" to satisfy this prong. N.J. Div. of Youth & Family Servs.

v. F.M., 211 N.J. 420, 449 (2012) (quoting In re Guardianship of D.M.H., 161

N.J. 365, 383 (1999)). "Serious and lasting emotional and psychological harm

to children as the result of action or inaction of their biological parents can

constitute injury sufficient to authorize the termination of parental rights." In re

Guardianship of K.L.F., 129 N.J. 32, 44 (1992). "A parent's withdrawal of that

solicitude, nurture, and care for an extended period of time is in itself a harm

that endangers the health and development of the child." D.M.H., 161 N.J. at

379. "When 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




                                                                            A-0498-17T4
                                         9
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).

      From the time Bill was identified as Beth's father, he did not have a home

suitable for his child. Except for times when he lived in a house which the

Division caseworker described as "abandoned" and "unlivable" or lived with

someone else in a rented room, Bill was homeless. He admitted to the Division

adoption worker that he could not provide Beth with a home if he gained

custody. In August 2015, he admitted to the Division caseworker that he was

not ready to care for Beth.

      Bill's drug use was uncontrolled.     On August 7, 2015, Bill admitted

marijuana use and that he missed a substance abuse evaluation appointment; he

also tested positive for cocaine thirteen days later. In October 2015, he was non-

compliant with his intensive outpatient program.        He appeared under the

influence at a November 2015 visitation and admitted he "did something" three

days prior; a urine sample taken the same day tested positive for cocaine. Bill

entered an intensive outpatient program at CPC Behavioral Healthcare (CPC),

which reported his attendance was poor and he was noncompliant.                On

December 23, 2015, he self-reported to the Division that he tested positive

during a random drug screen performed by his probation officer on December


                                                                          A-0498-17T4
                                       10
21. A substance abuse evaluation in April 2016 recommended that Bill attend a

long-term inpatient program. Instead, Bill entered and completed a twenty-one

day short-term program at Bergen Pines. Bergen Pines recommended that Bill

continue treatment at an intensive outpatient facility and he enrolled in CPC.

He tested positive for marijuana in October 2016. And in April 2017, he tested

positive for cocaine at CPC.

      Dr. Brandwein, who was found to be a credible expert by the trial judge,

conducted a psychological evaluation of Bill and concluded in his report that,

the information he reviewed and his interview with Bill was

            indicative of a rather significant personality disorder in
            multiple realms that has a marked impact on [Bill's]
            cognition, affectivity, interpersonal relations, and
            impulse control. These disorders often respond poorly
            to conventional modes of mental health treatment due
            to the individual with the personality disorder not
            believing they are the problem and/or that any change
            is required of them. Rather, they tend to externalize
            blame and believe others need to change to fit their
            whims. As such, it is this examiner's opinion that [Bill]
            is highly unlikely to ever engage in Division services to
            the point where he would be able to receive a sufficient
            benefit from them to safely parent his daughter.

The doctor expressly opined "the prognosis for [Bill] to ever be a safe and

appropriate parent for [Beth], on a scale of poor-fair-good-excellent, is poor."




                                                                          A-0498-17T4
                                       11
      At trial, Dr. Brandwein diagnosed Bill with "a personality disorder . . . in

the narcissistic histrionic antisocial and turbulent realm" with a secondary

diagnosis of an "adjustment disorder." He also testified that people with Bill's

disorders "don't take responsibility for their need to change. The world needs

to change. Other people need to change." Dr. Brandwein concluded that Bill

had difficulty meeting his own needs and therefore would have difficulty

meeting Beth's needs. If placed with a person as unstable as Bill, the doctor

testified that "[t]here would be a risk to the child's physical development, their

emotional development, their intellectual development, really their development

psycho[-]socially."

      The evidence also established Bill's criminal involvement. The Division

was informed of Bill's criminal history in June 2015: assault, domestic violence,

child endangerment. On September 14, 2015 he was arrested for resisting arrest,

trespass and hindering apprehension after he broke into Jill's home and was

found hiding in the attic. Jill obtained a restraining order against him. Bill

advised Dr. Brandwein that he was placed on probation for the endangering

charge that stemmed from an incident when he slapped his former girlfriend 's

child for using a racial epithet.




                                                                          A-0498-17T4
                                       12
      The trial judge found Bill was, both presently and for the foreseeable

future, unable to perform the basic functions of a parent:

            He's still homeless. He hasn't complied with the drug
            treatment.     And quite frankly, Dr. Brandwein's
            testimony and evaluation was very telling regarding his
            capabilities of parenting and he's just not there. He has
            some severe issues regarding personality issues. He has
            severe issues in his background regarding domestic
            violence and criminal [behavior].

And the judge noted Bill's admission that he was not in a position to care for

Beth. The evidence thus supported the trial judge's finding that the Division met

its burden with regard to the first prong. See H.R., 431 N.J. Super. at 223.

      It is common that the proofs relating to the first and second prongs

dovetail. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88

(App. Div. 2006). The proofs common to the first two prongs in this case

support the judge's findings regarding the second prong which requires the

Division to "demonstrate that the parent is 'unable to eliminate the harm facing

the child or is unable . . . to provide a safe and stable home for the child ' . . .

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.

2002) (first alteration in original) (quoting N.J.S.A. 30:4C-15.1(a)(2)). The

second prong may be met by showing "that the parent is unable to provide a safe


                                                                            A-0498-17T4
                                        13
and stable home for the child and that the delay in securing permanency

continues or adds to the child's harm," or "that the child will suffer substantially

from a lack of stability and a permanent placement and from the disruption of

her bond with foster parents." K.H.O., 161 N.J. at 348-349, 363.

      Bill never obtained stable, appropriate housing for Beth. See K.H.O., 161

N.J. at 348-349, 363. He consistently relapsed during his failed drug treatment

efforts.   The instability, together with the cluster B personality traits –

"[d]ramatic, erratic and emotional" – that Dr. Brandwein diagnosed in Bill,

which the doctor said was "very, very ingrained in people that have them," led

the doctor to find "there was a lack of evidence that [the] behavior that led to

the instability was going to change." The doctor concluded that he "did not

deem [Bill] to be able to be an independent caregiver" at the time of Bill's

evaluation and opined that Bill would not be able to be a caregiver "in the

foreseeable future."

      "[T]he 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 . . . with the resultant neglect and lack of nurture for the child."

K.H.O., 161 N.J. at 353. What most concerned the A.W. Court was the lack of


                                                                               A-0498-17T4
                                         14
evidence of "any realistic likelihood that the parents would ever be capable of

caring for the children."      103 N.J. at 614.       Even when parents are not

blameworthy, parental unfitness can be established when their behavior

"indicates a further likelihood of harm to the child in the future." Id. at 615-16.

      The trial judge properly considered evidence that Bill was unable to

correct his "conduct within the reasonably foreseeable future." N.J. Div. of

Child Protect. & Permanency v. T.D., 454 N.J. Super. 353, 380 (App. Div.

2018). That evidence proved that the harm to Beth would continue because Bill

was unable or unwilling to overcome or remove it, thus satisfying the second

prong. N.J. Div. of Child Protect. & Permanency v. P.P., 180 N.J. 494, 506-07

(2004).

      Bill's inability to remove the harm to Beth resulted in the formation of a

bond between the child and her resource parents which Dr. Brandwein said

represented Beth's "primary parental attachments, and that the resource parents

are [Beth's] psychological parents." Dr. Brandwein also noted that breaking the

bond between the child and the resource parents, because she had been with

them since she was ten months old, "would be separating her from her first bond

. . . [which] has the potential to be highly detrimental to a child. . . . [The child]

would psychologically be lost and [it would] be very, very difficult for her to


                                                                              A-0498-17T4
                                         15
recover from that." This evidence supported the judge's conclusion that the

Division proved the second prong. See N.J. Div. of Youth & Family Servs. v.

B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996) (recognizing "harms

attributable to a biological parent include the prolonged inattention to a child 's

needs, which encourages the development of a stronger, 'bonding relationship'

to foster parents, 'the severing of which would cause profound harm'" (quoting

In re Guardianship of J.C., 129 N.J. 1, 18 (1992))). As our Supreme Court held

in K.H.O., 161 N.J. at 348-49, harm may be "shown [by proof that] the parent is

unable to provide a safe and stable home for the child and that the delay in

securing permanency continues or adds to the child's harm."

      Bill's third-prong challenge avers: the trial judge's conclusory finding that

the Division made reasonable efforts to provide services was not supported by

the record; the Division delayed in confirming his paternity; it also failed "in

planning with Bill for the care of his child"; and its "delay in processing S.R.

was unreasonable."

      In ruling the Division provided reasonable services to Bill, the trial judge

observed that, despite receiving extensions while the case was on the FN docket

to achieve reunification with Beth, he "never complied with services."

Notwithstanding the trial judge's perfunctory finding regarding the services


                                                                           A-0498-17T4
                                       16
provided to Bill by the Division, the record supports that reasonable services

were offered.

      The Division arranged for visitation, transportation, substance abuse

evaluations and treatment; Bill was also working with social services to obtain

housing. Although he attended most supervised visitation sessions, Bill was

unavailable on at least eight occasions. In 2015, Bill: was unreachable when the

Division attempted to contact him to schedule visitation in July; failed to appear

for a confirmed visitation in August; failed to confirm another visit in August,

resulting in a cancellation; was unable to attend visits until they resumed in

September because of his incarceration; and failed to confirm two visits in

December, resulting in more cancellations. He also cancelled two visits in

January 2016, one while Beth was en route. And, as noted, he failed to remain

sober or provide a home suitable for Beth.

      We do not measure the reasonableness of the Division's efforts by their

success. D.M.H., 161 N.J. at 393. In light of all the circumstances in this case,

the record supports that the Division made "[c]onsistent efforts to maintain and

support the parent-child bond" thus satisfying its obligation. Ibid.

      Bill argues the Division's delay in confirming his paternity "was

completely antithetical" to its obligations under the third statutory prong. The


                                                                          A-0498-17T4
                                       17
trial judge observed that "it would have been better if the Division got [Bill ]

involved earlier" but concluded "[t]he bottom line is though he has been

involved with the Division now for almost two and a half years[,]" he was still

homeless and noncompliant with drug treatment. We review the circumstances

surrounding the delay in confirming Bill's paternity.

      Bill contends in his merits brief that he contacted the Division in February

2014, prior to Beth's birth, and warned that Jill was abusing drugs while pregnant

with what he believed to be his child. The record to which he refers to buttress

this contention, however, make no mention that he disclosed his belief that he

was the father.

      It was not until three days after Beth was born that Bill called the Division

and requested a paternity test because "the baby was supposedly his but [Jill]

cheated on him." Indeed, the Division caseworker reported that during her

hospital visit with Jill on July 28, 2014, Jill told the caseworker she was not sure

who the father was and, in fact, registered under a name other than her own,

because "she did not want to deal with the 'drama' from the father." A man

visiting Jill during the caseworker's call told the caseworker he was not sure if

he was the father. Jill, nonetheless, refused to name the father.




                                                                            A-0498-17T4
                                        18
      On August 1, 2014, under an FN docket, a different judge ordered Jill to

"provide the name and whereabouts of the child's biological father so that a

paternity test may be completed" and the Division to offer genetic testing to any

putative father, including Bill. On August 29, Jill disclosed that Beth's father

was either her male hospital visitor or Bill.

       Though the Division caseworker said he had frequent conversations with

Bill from July 2014 until June 2015, the Division maintained in March 2015 that

Jill "did name two fathers for [Beth] and a search has been put out for them." It

is perplexing that the Division was still searching for someone with whom they

had contact or why the Division did not arrange a paternity test for Bill. It is

also not clear why Bill did not appear for the first scheduled paternity test in

May 2015. Both he and the male hospital visitor were tested on June 2, 2015.

The Division was notified Bill was the father on June 15, 2015.

      Although we look askance at the Division's seemingly dilatory response

to the court's order to have Bill tested, and the lacuna in the court's enforcement

of its order, we recognize that Jill's refusal to identify Beth's father initially

delayed this process. We also note that during the pendency of the paternity

investigation, on July 15, 2015, Bill was named as a defendant in the FN case

and that judge found good cause to extend the FN case because of Bill's recent


                                                                           A-0498-17T4
                                       19
identification as the father; he was allowed supervised visitation which

continued pursuant to the court's August 25 FN order.          In an effort at

reunification, the court granted another extension on October 22, 2015,

remarking Bill was "working with social services to obtain stable housing and

working on services." The order mandated that Bill notify the Division when

he enrolled in drug treatment at CPC and maintain weekly contact with the

Division caseworker and that the Division continue to provide Bill with

supervised visitation and bus passes.

      As we have already detailed, Bill did not take advantage of the services

provided by the Division. His continued drug use was recorded in the court's

January 19, 2016 FN order, as was the Division's provision of "visitation,

evaluations and referrals for service."      The court, however, found that

termination of parental rights was then inappropriate and gave Bill "more time

to work toward progress in addressing his issues"; another extension was

granted. Three months later, the court entered an almost identical order. Bill

was also ordered to submit to a hair follicle test and follow recommendations

after a substance abuse evaluation; the latter mandate was also ordered on July

12, 2016. Visitation was continued in both the April and July 2016 orders.




                                                                       A-0498-17T4
                                        20
      Despite the extensive services offered for over two years after Bill was

identified as Beth's father in June 2015, both under the FN and FG dockets, he

was still unable to parent Beth. While we do not condone the delay between

July 2014 and June 2015 in identifying him as the father, that delay did not result

in Bill's inability to parent considering the services the Division offered and the

efforts made by the Division and the court to reunify Bill with his daughter . The

record supports the finding that the Division provided reasonable services as

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

      Turning to the second part of the third prong – requiring the Division to

establish that alternatives to termination have been considered – Bill contends

the Division's delay in considering his proposal that S.R. serve as Beth 's

resource parent contravened its statutory obligation to "initiate a search for

relatives who may be willing and able to provide the care and support required

by the child." N.J.S.A. 30:4C-12.1(a). He argues the Division, in compliance

with that statute, should have initiated a search for paternal relatives wi thin

thirty days after it took custody of Beth or, at the latest, within thirty days after

Bill's paternity was confirmed.

      As Bill's alternative argument anticipates, we perceive no merit in the

former contention.     Jill named two putative fathers.       Until paternity was


                                                                             A-0498-17T4
                                        21
confirmed, it was not reasonable for the Division to investigate relatives of

someone who may not be Beth's father. As to Bill's latter assertion, the court's

July 15, 2015 order, following confirmation of Bill's paternity, required him to

provide the names of possible resource parents and the Division to investigate

those persons. He provided S.R.'s name to the Division in early August. The

Division caseworker contacted S.R. and obtained identifying information for

everyone in her household and ran background checks. On September 11, 2015,

the Division received the results of an inquiry to the Maplewood Police

Department regarding S.R. which revealed S.R. did not have a criminal record

but her son had "some juvenile criminal history and possible mental health

concerns."

      Despite the entry of an October 22, 2015 court order requiring the

Division to evaluate S.R. as a resource for Beth, there is no evidence in the

record that anything was done after the September 2015 background check

through March 2016, when the file was turned over to a new caseworker who

had to complete a relative resource care packet (packet) and send it to the

Division's Resource Unit in order for S.R.'s home to be licensed – a prerequisite

for Beth to live in that home. In April 2016, the court entered another order

compelling the Division to investigate parental relatives. The new caseworker


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started the packet in April and submitted it to the Resource Unit in June 2016.

During a meeting on April 26, 2016, S.R. told the new caseworker that she would

be willing to be a resource parent for Beth and complete PRIDE 4 training. S.R.

testified that a Division resource worker – whom S.R. described as "my guide

through step by step to get to where I needed to be, to finish my classes, any

training and having my home inspection" – then contacted her and provided the

contact information to set up S.R.'s required classes. S.R. also testified that the

home-licensing process began in May 2016. She admitted there was a licensing

delay after her home failed inspection in March because of a water-temperature

problem, but a license was issued in April 2017.

      We, again, see no reason for the six-month period of inaction between

completion of the background check in September 2015 and the commencement

of the preparation of the packet. But we cannot characterize that delay as the

Division's embarkation "on a course set for termination of parental rights and

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

placements," a practice which we decried in New Jersey Division of Youth and


4
  PRIDE is an acronym that stands for the Parental Resources for Information,
Development and Education training program provided by the Division.
Department of Children and Families, Training (PRIDE) (May 6, 2019 5:24
p.m.), https://www.nj.gov/njfosteradopt/services/training/; see N.J.A.C. 3A:51-
5.6(a)(1).
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                                       23
Family Services v. J.S., 433 N.J. Super. 69, 81 (App. Div. 2013) (quoting N.J.

Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div.

2011)).   The Division's actions fairly met the "important objective of the

statutory scheme[: the] 'prompt identification of relatives and notice to them of

the results of the investigation and the potential for termination if the child

remains in foster care.'"5 Ibid. (quoting K.L.W., 419 N.J. Super. at 580).

      Although the Division could have been more diligent in investigating S.R.

during that six-month period, we discern other issues delayed the process:

concerns about marijuana use and fighting by her son who was still living in the

home and the regulation of the water temperature. We also observe the Division

apprised S.R. that Beth was in adoption status; nonetheless, S.R. was afforded

visitation with Beth and the Division had to arrange to transport Beth during

evening and weekend hours because S.R. could not accommodate regular

visitation hours due to her work schedule.

      In J.S., we held the Division is required to promptly "conduct a fair

investigation" of any identified relative:

            The Division cannot ignore such a relative's timely
            application out of bureaucratic inertia, or consider that

5
  We note that the only relative proposed by Jill was a maternal grandmother
whose paramour refused to comply with the Division's licensing requirements
and was therefore ruled out in August 2014.
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            application based upon an arbitrary, preordained
            preference for the foster placement. The Division must
            perform a reasonable investigation of such relatives
            that is fair, but also sensitive to the passage of time and
            the child's critical need for finality and permanency. If,
            hypothetically, the Division has been lax or capricious
            in its assessment of such timely-presented alternative
            caretakers, it bears the litigation risk that a Family Part
            judge will conclude, under N.J.S.A. 30:4C-15.1(a)(3),
            that it has failed to prove by clear and convincing
            evidence that "alternatives to termination of parental
            rights" have been appropriately considered.

            [433 N.J. Super at 87.]

      This was not the case where the Division failed to investigate a timely-

disclosed relative. Bill failed to mention his cousin as a potential resource until

thirteen months after Beth was born, and S.R. was not even aware Beth had been

born until then. Nor did the Division consider S.R. based on "an arbitrary,

preordained preference for foster placement" as evidenced by the provision of

visitation and the considerable attention the Division paid to S.R. 's application

for most of the time it was pending. Ibid.

      To be sure, "alternatives to termination of parental rights were considered"

as required by N.J.S.A. 30:4C-15.1(a)(3).          The Division conducted an

emergency removal of Beth from the hospital right after her birth because of

Jill's drug use and concerns about her mental health; Jill's refusal to name Beth's

father prevented the Division from considering paternal relatives and caused

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                                       25
Beth's placement with a resource parent. She was placed with her present

resource parents when she was ten-months old – before Bill identified S.R. –

because Bill could not parent her. As Beth approached her third birthday, she

had been with her present resource parents for over two years. The Division

sent a rule-out letter to S.R. advising her: "it is in [Beth's] best interest not to

be placed in [S.R.'s] home. [Beth] has been in her current home since she was

[ten] months old and it has been determined by a psychologist that removal from

this home would be detrimental to [Beth]."

      N.J.S.A. 30:4C-12.1, in addition to requiring the Division to search for

and assess relatives after it accepts a child in its custody, allows the Division "to

pursue the termination of parental rights if [it] determines the termination of

parental rights is in the child's best interests."        N.J.S.A. 30:4C-12.1(c).

According deference to the Division's interpretation of the "best interests"

language in the statute, we determined the statute did not create a "presumption

in favor of placing children with competent and willing relatives. . . . The reality

is that, no matter how fit or willing a proposed relative may be, a child will, in

some instances, be better off remaining in a successful foster placement." J.S.,

433 N.J. Super. at 85.




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                                        26
      The record supports that determination.          As we already noted, Dr.

Brandwein opined that breaking the bond between Beth and the foster parents,

with whom she had been since she was ten months old, "would be separating her

from her first bond . . . [which] has the potential to be highly detrimental to a

child. . . . [The child] would psychologically be lost and [it would] be very, very

difficult for her to recover from that." There is no evidence that Beth developed

a long-standing relationship with S.R. over the course of visitations provided.

Inasmuch as "there is no legal presumption in favor of a child's placement with

relatives," J.S., 433 N.J. Super. at 88, and Bill was not in any position to parent

Beth, there is no evidence to controvert Dr. Brandwein's opinion, as adopted by

the trial judge, that it was in Beth's interests to remain with her resource parents.

      We do not perceive that the delay attributable to the Division contributed

in any appreciable way to an increased bond between Beth and her resource

parents or a lessening of a relationship with S.R., who was not licensed for about

ten months after her packet was completed. Even if the investigation was

completed six months earlier, Beth would have been with her present resource

parents for eighteen of her twenty-eight months. The trial judge credited Dr.

Brandwein's

             position that removing this child from the only home
             that [Beth] could possibly remember or know, I mean

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                                        27
            been there since she was nine or [ten] months old,
            basically for the last almost three years, the child's
            whole life has been with these caretakers. To expect,
            to argue that they are securely bonded, particularly at
            this age, the child is over three, and that time two and a
            half, or a little over, I mean it shouldn't be any surprise.
            And to disrupt that child and take it away from the only
            placement and put it with a stranger who saw the child
            four or five visits. The Division's rule out for best
            interest seems extremely reasonable. This isn't a
            capricious argument. This isn't something that was
            done on a whim. This was done based on first of all
            just the facts of the case. That this child had been there
            for several years and it's the only home the child knows.

We thus see ample reason for the trial judge to uphold the Division's decision to

rule out S.R. And, as stated, the Division did not eschew its responsibility to

conduct a fair investigation of S.R. even though it ruled her out. J.S., 433 N.J.

Super. at 87.

      We pause to address the trial judge's descriptions of Bill's argument

regarding the Division's consideration of S.R. as a "red herring."           Those

comments were unfortunate because they may be construed to mean that the

judge ignored the statutory obligation to consider alternatives to termination as

part of the Family Part's analysis under the third prong of the best-interests

standard, N.J.S.A. 30:4C-15.1(a)(3); H.R., 431 N.J. Super. at 226, or to assess

the Division's rule-out determination which is always subject to "the Family

Part's ultimate assessment of that child's best interests," J.S., 433 N.J. Super. at

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                                        28
75. Notwithstanding the judge's "red herring" reference, he did, as we have

observed, consider the Division's proofs regarding alternatives to termination

and its reasons for ruling out S.R.

      The Division satisfied the fourth prong through Dr. Brandwein, who, the

evidence proves, was "'a well qualified expert who has had full opportunity to

make a comprehensive, objective, and informed evaluation' of the child's

relationship with both [her natural parent] and her foster parents." M.M., 189

N.J. at 281 (quoting J.C., 129 N.J. at 19). Finding Dr. Brandwein's testimony

credible, the trial judge evaluated the strength of Beth's relationship to Bill and

the resource parents, the relative harm that would befall Beth if she was removed

from one or the other and the ability of each to ameliorate that harm. See

K.H.O., 161 N.J. at 355. The judge found compelling the strength of the bond

between Beth and the resource parents and the parents' ability to ameliorate any

harm caused by the termination of Beth's thin bond with Bill, who admits in his

merits brief that he never intended to be her custodial parent. The judge's

decision was amply supported by Dr. Brandwein's testimony and recognized that

"a child has a right to live in a stable, nurturing environment and to have the

psychological security that his most deeply formed attachments will not be

shattered." F.M., 211 N.J. at 453.


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                                       29
      We determine the balance of Bill's other arguments are without sufficient

merit to warrant discussion in a written opinion. R. 2:11-39(e)(1)(E).

      After a careful consideration of the record, we affirm.




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