                                      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                                NOT FOR PUBLICATION WITHOUT THE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-5432-16T3
                                                                     A-5433-16T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

v.

N.M.Y. and J.D.M., Jr.,

     Defendants-Appellants.
__________________________

IN THE MATTER OF THE
GURADIANSHIP OF C.J.M.,

     a Minor.
_____________________________

                    Argued telephonically October 10, 20191 –
                    Decided November 8, 2019

                    Before Judges Fasciale, Rothstadt and Mitterhoff.




1
  We originally scheduled oral argument for October 21, 2019, but due to a
scheduling conflict of one of the attorneys, we held telephonic oral argument on
October 10, 2019.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Atlantic County,
            Docket No. FG-01-0067-16.

            Patricia A. Nichols, Designated Counsel, argued the
            cause for appellant N.M.Y. (Joseph E. Krakora, Public
            Defender, attorney; Patricia A. Nichols, on the briefs).

            Beryl Vurnen Foster-Andres, Designated Counsel,
            argued the cause for appellant J.D.M., Jr. (Joseph E.
            Krakora, Public Defender, attorney; Beryl Vurnen
            Foster-Andres, on the briefs).

            Alexa L. Makris, Deputy Attorney General, argued the
            cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Melissa Dutton Schaffer, Assistant
            Attorney General, of counsel; Alexa L. Makris, on the
            brief).

            Lisa Marie Black, Designated Counsel, argued the
            cause for minor (Joseph E. Krakora, Public Defender,
            Law Guardian, attorney; Lisa Marie Black, on the
            brief).

PER CURIAM

      N.M.Y. (the mother) and J.D.M., Jr. (the father) (collectively defendants)

appeal from a July 31, 2017 order terminating their parental rights to C.J.M. (the

child), and awarding guardianship in favor of the Division of Child Protection




                                                                          A-5432-16T3
                                        2
and Permanency (the Division). The judge conducted a lengthy trial, entered

judgment, and rendered a thorough eighty-three page written decision. 2

      On appeal, the mother argues:

            POINT I
            THE [JUDGE'S] ABUSE OF DISCRETION IN
            REPEATEDLY REFUSING TO CONDUCT THE
            BEST    INTERESTS   PLACEMENT   REVIEW
            HEARING, REQUESTED NUMEROUS TIMES BY
            COUNSEL FOR [DEFENDANTS] AND THE LAW
            GUARDIAN THROUGHOUT TWO YEARS OF
            LITIGATION, WAS OF SUCH MAGNITUDE AS TO
            PREJUDICE [DEFENDANTS] AND ADVERSELY
            IMPACT THE OUTCOME OF THE GUARDIANSHIP
            TRIAL.

            POINT II
            LIMITING DEFENSE EXPERTS WAS AN ABUSE
            OF DISCRETION.

            A. Dr. Figurelli

            B. Dr. Quintana

            POINT III
            THE [JUDGE'S] OPINION FAILED TO SATISFY
            R[ule] 1:7-4 AS IT DID NOT CONTAIN FINDINGS
            OF FACT OR CONCLUSIONS OF LAW
            CONSISTENT WITH EITHER THE TRIAL
            EVIDENCE OR THE RELEVANT STATUTORY
            AND CASE LAW IN ORDER TO JUSTIFY AN
            AWARD OF GUARDIANSHIP TO PLAINTIFF. IN

2
   During a limited remand, the judge rendered a written opinion and related
order dated August 14, 2018, which clarified part of the evidence and concluded
that there was no spoliation of evidence.
                                                                          A-5432-16T3
                                      3
      ADDITION, THE [JUDGE] ERRONEOUSLY TRIED
      TO FIT THE SQUARE PEG OF FAMILIES IN NEED
      OF SERVICES INTO THE ROUND HOLE OF BEST
      INTEREST OF THE CHILD GUARDIANSHIP.
      (Partially Raised Below).

      A. The Rights And Interests Of Families In Need Of
      Services Are Not Properly Adjudicated In The Crucible
      Of [The] [Four]-Prong Best Interest Analysis.

      B. Families In Need Of Services Do Not Have The
      History Of Harm Or Fault Required For The [First]
      Prong.

      C. Families In Need Of Services Are Not Required To
      Cure Family Needs As Under The [Second] Prong.

      D. Families In Need Of Services Are Entitled To More,
      And More Effective, Reasonable Efforts Than Required
      For The [Third] Prong.

      E. Families In Need Of Services, Without The
      Reasonable Efforts Contemplated Under That Statute,
      Are Impeded, By Plaintiff, From Achieving A Bond
      That Would Survive [The] [Fourth] Prong Analysis.

On appeal, the father argues:

      POINT I
      THE JUDGE CLEARLY ERRED IN FAILING TO
      ADMIT THE FOSTER FATHER'S RACIST AND
      VIOLENT FACEBOOK POSTS INTO EVIDENCE.

      POINT II
      THE JUDGE CLEARLY ERRED IN ADMITTING
      DR. LEE'S TESTIMONY BASED ON THE
      RORSCHACH TEST.


                                                              A-5432-16T3
                                4
POINT III
THE JUDGE ERRONEOUSLY RULED THAT THE
FOUR PRONGS OF THE BEST INTERESTS TEST
FAVORED TERMINATION OF PARENTAL
RIGHTS WHERE THE EVIDENCE SHOWED THAT
[THE CHILD] WAS BONDED WITH [THE FATHER]
AS WELL AS THAT [THE FATHER] WAS A GOOD
FATHER,      SUCCESSFULLY     COMPLETED
NUMEROUS SERVICES, NEVER CONSUMED
ANY ILLICIT SUBSTANCES, HAD A STABLE JOB
AND INCOME, AND WAS PREVENTED FROM
COMPLETING THE LIVING WITH CHILDREN
EVALUATION WHILE THE FOSTER FATHER IS
AN ACTIVELY USING ALCOHOLIC AND RACIST
AND     BOTH    FOSTER  PARENTS    WERE
UNEMPLOYED.

A. The Judge's First Prong Finding Was In Error
Because Neither Parent Ever Harmed This Child, Each
Had Enrolled In And Successfully Completed A Litany
Of Services, Did Not Use Any Illicit Substances
Through The Duration Of The Matter, There Was No
Reason To Believe [The Father] Had A Proclivity
Towards Criminal Recidivism, Their Interactions With
This Child Were At All Times Nurturing And Safe, And
The Judge Relied Heavily On Dr. Lee's Unsupported
Opinions.

B. DCPP Failed To Prove The Second Prong Of The
Best Interests Test Because [The Father] Completed
Domestic Violence Counseling, Refrained From Any
Illicit Substances, Was Bonded To His Son, And Was
An Adequate Parent.

C. DCPP Did Not Satisfy The Third Prong Of The Best
Interests Test Because It Failed To Place The Boy With
His Aunt And Uncle, Refused To Bring Him For The
Living With Children Evaluation, And Failed To

                                                         A-5432-16T3
                          5
             Investigate The Foster Father's Racist And Violent
             Facebook Posts.

             D. DCPP Failed To Prove The Fourth Prong Of The
             Best Interests Test Because The Father Has Properly
             Addressed Any Substance Issues As Well As His Past
             Crime, Has A Stable Home, Employment, And
             Relationship, While The Foster Parents Do Not Work,
             Face Severe Financial Hardships, Would Cut The Boy
             Off From All His Family, And The Foster Father Will
             Be Nearly [Eighty] By The Time [The Child] Is
             Finishing High School, Is Racist, Endorses Violence,
             And Is An Alcoholic While Still Actively Consuming
             Alcohol.

                                          I.

      We begin our discussion with the well-settled legal framework regarding

the termination of parental rights. Parents have a constitutionally protected right

to the care, custody and control of their children. Santosky v. Kramer, 455 U.S.

745, 753 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999).

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

217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.

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

to protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M., 198

N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To

effectuate these concerns, the Legislature created a test to determine when it is

in the child's best interest to terminate parental rights. In order to secure parental

                                                                              A-5432-16T3
                                          6
termination, N.J.S.A. 30:4C-15.1(a) requires the Division to prove by clear and

convincing evidence the following four prongs:

            (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.

See also A.W., 103 N.J. at 604-11. The four prongs of the test are not "discrete

and separate," but "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. "The considerations involved in determinations of parental fitness are

'extremely fact sensitive' and require particularized evidence that address the




                                                                          A-5432-16T3
                                        7
specific circumstances in the given case." Ibid. (quoting In re Adoption of

Children by L.A.S., 134 N.J. 127, 139 (1993)).

      Our review of a family judge's factual findings is limited. Cesare v.

Cesare, 154 N.J. 394, 413 (1998). "When a biological parent resists termination

of his or her parental rights, the [judge's] function is to decide whether that

parent has the capacity to eliminate any harm the child may already have

suffered, and whether that parent can raise the child without inflicting any

further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81,

87 (App. Div. 2006). The factual findings that support such a judgment "should

not be disturbed unless 'they are so wholly insupportable as to result in a denial

of justice,' and should be upheld whenever they are 'supported by adequate,

substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super.

172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co.

of Am., 65 N.J. 474, 483-84 (1974)). "[T]he conclusions that logically flow

from those findings of fact are, likewise, entitled to deferential consideration

upon appellate review." R.L., 388 N.J. Super. at 89.

                                       II.

      We now turn to defendants' argument that the judge erred in finding that

the Division proved each of the four prongs under the best interests test by clear


                                                                          A-5432-16T3
                                        8
and convincing evidence. We disagree with defendants' contentions, and as to

the four prongs, we affirm substantially for the reasons given by the judge. We

add the following.

                                        A.

      The first prong requires the Division to prove that "[t]he child's safety,

health, or development has been or will continue to be endangered by the

parental relationship[.]" N.J.S.A. 30:4C-15.1(a)(1). "Although a particularly

egregious single harm can trigger the standard, the focus is on the effect of harms

arising from the parent-child relationship over time on the child's health and

development." K.H.O., 161 N.J. at 348. "[T]he attention and concern of a caring

family is 'the most precious of all resources.'" In re Guardianship of D.M.H.,

161 N.J. 365, 379 (1999) (quoting A.W., 103 N.J. at 613). "[W]ithdrawal of

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

a harm that endangers the health and development of the child." Ibid.

      The judge found that the mother was unable to provide for the child's

health, safety, and development based on her failure to address her substance

abuse issues.    In reaching this conclusion, the judge relied on bonding

evaluations and expert testimony from psychologists retained by both the

Division (Dr. Alan Lee) and defendants (Dr. John Quintana).            Indeed, the


                                                                           A-5432-16T3
                                        9
Division removed the child from the home when he was just over three months

old, in part, because the mother tested positive for Suboxone (a controlled

dangerous substance), and because it received referrals that defendants sold

drugs out of their home, in which others allegedly overdosed. Thus, the Division

satisfied prong one as to the mother.

      The father also was unable to provide for the child's health, safety, and

development.    In support of that finding, the judge determined that his

personality traits—anger, resentfulness, and self-centeredness—and his

domineering, manipulative, and aggressive behaviors adversely impacted his

overall functioning. Dr. Lee provided these diagnostic impressions, and Dr.

Quintana agreed the father suffered from maladaptive judgment and personality

traits, including risk of substance abuse problems. Moreover, the father, a

Megan's Law offender, violated his parole conditions when he lived with the

child. The father's failure to address these issues prolonged his out-of-home

placement, which in itself is a harm. See D.M.H., 161 N.J. at 379 (noting

"withdrawal of . . . solicitude, nurture, and care for an extended period of time

is in itself a harm that endangers the health and development of the child").

Thus, the Division satisfied prong one as to the father.




                                                                         A-5432-16T3
                                        10
         We emphasize, as to prong one, that the Division can meet its burden by

showing conduct "detrimental to the physical or mental health of the child . . .

in the form of actual or imminent harm." A.W., 103 N.J. at 616 (emphasis

added). "[T]he cornerstone of the inquiry is not whether the biological parents

are fit but whether they can cease causing their child harm." J.C., 129 N.J. at

10. "Courts need not wait to act until a child is actually irreparably impaired by

parental inattention or neglect." D.M.H., 161 N.J. at 383. "[A]ny question of

the parental role is oriented only to the prediction of the future condition of the

child.     Parental behavior is relevant only insofar as it indicates a further

likelihood of harm to the child in the future."         A.W., 103 N.J. at 615-16.

Contrary to the father's contention, the standard is not whether the parents have

caused harm, but "whether it is reasonably foreseeable that the parents can cease

to inflict harm[.]" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167

(2010) (quoting A.W., 103 N.J. at 607). Here, the judge found otherwise.

                                          B.

         The second prong of the best interests test requires the Division to present

clear and convincing evidence that "[t]he parent 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." N.J.S.A. 30:4C-15.1(a)(2). The relevant


                                                                             A-5432-16T3
                                         11
inquiries for the judge are whether the parent cured and overcame the initial

harm that endangered the child, and whether the parent is able to continue the

parental relationship without recurrent harm to the child. K.H.O., 161 N.J. at

348-49. To satisfy its burden, the Division must show continued harm to the

child because the parent is unable or unwilling to remove or overcome the harm.

N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 483 (App.

Div. 2012). The first and second prongs relate to one another, and often,

"evidence that supports one informs and may support the other as part of the

comprehensive basis for determining the best interests of the child." D.M.H.,

161 N.J. at 379.

      "Parental unfitness may also be demonstrated if the parent has failed to

provide a 'safe and stable home for the child' and a 'delay in permanent

placement' will further harm the child." K.H.O., 161 N.J. at 352 (quoting

N.J.S.A. 30:4C-15.1(a)(2)). "Keeping [a] child in limbo, hoping for some long

term unification plan, would be a misapplication of the law." N.J. Div. of Youth

& Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001).

      As to prong two, the judge found—relying on Dr. Lee's testimony—that

the mother was incapable of providing even minimally adequate care to the

child. And the judge accepted testimony from the Law Guardian's psychologist


                                                                        A-5432-16T3
                                      12
(Dr. Gregory Gambone) that the mother did not have a significant bond with the

child, which led the judge to conclude the mother, as opposed to the resource

parents, was incapable of providing permanency. Dr. Lee opined that the child

had an "ambivalent and insecure attachment" to the mother, and Dr. Quintana

testified that the mother was "presently incapable of appropriately and safely

caring for [the child]." These experts said the mother was unable to provide a

safe and stable home for the child. The mother also failed to participate in court-

ordered substance abuse treatment and individual counseling, and she did not

intend to complete those services. Thus, the Division satisfied prong two as to

the mother.

      Like the mother, the judge found that the father was unable or unwilling

to correct the circumstances that led to the child's removal. The father was

unable to provide a safe and stable home, in part because he did not complete

recommended services, including domestic violence counseling, court-ordered

substance abuse treatment, and a living with children evaluation (LWC).

Relying on Dr. Lee's testimony, the judge found that the father had a poor

prognosis for significant and lasting change, and that the father presented

ongoing concerns about his ability to parent. Thus, the Division satisfied prong

two as to the father.


                                                                           A-5432-16T3
                                       13
      The father contends he engaged in a "litany of services," including five

years of sex offender therapy. Regarding the LWC assessment, he argues that a

Division caseworker did not offer to bring the child for phase three of the

evaluation, and that the caseworker denied his request to bring the child to the

evaluation to complete the assessment. He asserts there was no evidence that he

was violent in the past nor that he needed drug treatment.

      As a condition of parole, the father was required to finish the LWC

evaluation before he could legally reside with the child. The primary cause of

the child's removal was the father's failure to complete the LWC. Four months

after his removal, at a fact-finding hearing, the father averred he completed the

LWC assessment and only needed the Division's assistance to pay the fee to

obtain the final report. Seven months after that, and after the court ordered the

Division to pay a share of the LWC fee, the father's parole officer notified the

Division that he did not start the three-step LWC assessment.         The father

contested this, stating that he completed the second step of the LWC process in

September 2015 and only needed to complete the third step—a session with the

child. He alleged that he tried to set the session up, but was unable to, because

a Division caseworker told him the session could not happen. The record does




                                                                         A-5432-16T3
                                      14
not contain this correspondence. As of trial, the father still did not complete the

evaluation.

      The father missed at least six substance abuse treatment appointments

between October 2015 and January 2016, despite being ordered to attend. The

judge issued three more orders directing the father to undergo substance abuse

treatment and evaluation, yet, on September 1, 2016, the substance abuse

treatment was terminated for noncompliance when the father failed to access

"any services despite numerous attempts by [the] agency." Thus, there is ample

evidence that he did not meaningfully engage in drug treatment and other

services. See N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76,

112 (App. Div. 2004).

      Moreover, we reject the father's general assertion that the judge erred by

relying on Dr. Lee's findings rather than adopting Dr. Quintana's conclusions.

Although he does not specify which of Dr. Quintana's conclusions, in context,

it appears the father is referencing Dr. Lee's testimony on two subjects: (1) the

existence of a secure bond and attachment between the father and the child; and

(2) the father's risk of reoffending, notably another sex offense.

      Dr. Lee did not contend, as the father implies, that the length of time the

child spent in foster care was dispositive as to defendants' bond with the child.


                                                                           A-5432-16T3
                                       15
Dr. Lee conducted six bonding evaluations, and he based his conclusions on

observations from those evaluations and on review of the case record. During

the bonding evaluation with the father, the child showed little emotion, was

nonverbal, tried to leave the room twice, and did not appear happy. This led Dr.

Lee to conclude the child lacked a significant, positive attachment to the father.

Dr. Lee found, by contrast, that the child's bond with his resource parents was

positive and enthusiastic.

      It is true that Dr. Quintana made different observations. During his own

bonding evaluation, conducted about three months after Dr. Lee's evaluation, he

observed that the child was very happy to see the father, engaged with him, and

hugged him. He called him "father" and listened when the father asked him to

help clean.   Based on this, Dr. Quintana concluded that the father was a

significant parental figure to the child.

      In favoring Dr. Lee's testimony over Dr. Quintana's, the judge relied, in

part, on Dr. Gambone's conclusion about the strength of the child's bond with

the resource parents. Dr. Gambone testified, similar to Dr. Lee, that the child

formed a positive emotional attachment with his resource parents and had an

"enduring cognitive and emotional dependence" on them.




                                                                          A-5432-16T3
                                        16
      Faced with two experts testifying about dissimilar observations made

during separate bonding evaluations, the judge found that Dr. Lee's and Dr.

Gambone's opinions were more credible than Dr. Quintana's. We defer to that

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

and there is ample support for the judge's finding in the record. C.S., 367 N.J.

Super. at 112. Moreover, Dr. Quintana—like the other experts—agreed that the

child had a "good relationship" with the resource parents and was comfortable

with them.

      As to the court's finding that the father had a heightened risk of recidivism,

the judge credited Dr. Lee's opinion that the father had a heightened level of

anger, resentment, impulse control, emotional reactivity, and substance abuse

issues. Dr. Lee's findings were supported by both Dr. Quintana's testimony and

the Division's records. Indeed, the father admitted to Dr. Quintana that he

exhibited poor judgment because of his anger and impatience issues.

      As to his history of crime, the father was arrested as a juvenile on a

weapons possession charge, for which he received probation, and as an adult, he

was convicted of two third-degree offenses: burglary in 2009 and endangering

the welfare of a child in 2011.    For the latter offense, defendant is subject to

parole supervision for life and is classified as a Tier II sex offender under


                                                                            A-5432-16T3
                                       17
Megan's Law.     The father violated parole in 2012 and was convicted of

obstructing the administration of law in 2016.

      Dr. Quintana diagnosed the father with an unspecified personality disorder

with antisocial personality traits.     Although the father attended anger

management training, at the time of trial, Dr. Quintana still recommended the

father make further efforts to address his impulsive behavior and anger issues

prior to reunification. In April 2015, the Division received a referral alleging

the father yelled at the mother and was aggressive towards her. In a January

2016 contact sheet, the Division also documented an incident in which the father

was reportedly "irate" and yelling outside a relative's home that the mother was

staying in, leading to police involvement.

      Although the father contends he complied with his parole conditions, the

Division's March 3, 2016 contact sheet demonstrates that his parole officer

reported that he was somewhat compliant because he submitted clean urine

screens, but he "missed quite a few sessions" at his drug treatment facility. The

officer concluded the father was therefore "on thin ice."       Moreover, as a

condition of the father's parole, he could not have unsupervised overnight

contact with any children, including his own, until he completed the LWC

evaluation. But he lived with the child and his mother in defiance of his parole


                                                                         A-5432-16T3
                                      18
conditions. At the time of judge's decision, when the child was thirty months

old, the father still did not complete the program.

      As to the father's risk of sexually reoffending, Dr. Lee noted that a Tier II

Megan's Law offender equates to a "moderate risk" of committing another

sexual offense. This opinion reinforced the importance of the father complying

with all of his parole conditions. See, eg., In re N.B., 222 N.J. 87, 92 (2015)

(noting that Tier II offenders "present[] a moderate risk of re-offense"). Thus,

as to the second prong, the judge's findings are supported by adequate credible

evidence. C.S., 367 N.J. Super. at 112.

                                        C.

      As to prong three, N.J.S.A. 30:4C-15.1(a)(3) requires the Division to

make "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 to "consider[ ] alternatives to termination of parental rights[.]" The judge

found that the Division provided defendants with a "plethora of services," which

we need not repeat here.     The Division met prong three.        The judge also

determined that the Division adequately assessed the child's placement with

paternal relatives, which we will address.




                                                                           A-5432-16T3
                                       19
      "In reviewing a child's placement, courts must determine whether 'such

placement ensures the safety and health and serves the best interest of the child.'"

N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528 (App.

Div. 2003) (quoting N.J.S.A. 30:4C-51). The child's best interests "is always

the polestar in such matters." N.J. Div. of Child Prot. & Permanency v. C.S.,

432 N.J. Super. 224, 229 (App. Div. 2013).          Although the Division has a

statutory duty to evaluate relatives as potential caretakers, there is no

presumption that favors the child's placement with such relatives. See N.J.S.A.

30:4C-12.1; N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 81-

82 (App. Div. 2013). Nevertheless, the Division evaluated paternal relatives,

despite their inconsistent interest and substantial problems with such placement .

      The Division removed the child from defendants' home in April 2015.

That month, a caseworker visited the house of paternal relatives (the father's

brother and his girlfriend) and discussed the possibility of placing the child with

them. That option failed because the girlfriend was not interested and was

otherwise overwhelmed with the licensing process.          However, the Division

continued pursuing these paternal relatives as a possible placement option.

      In July 2015, the Division contacted the paternal relatives asking if they

were interested in being a summer vacation placement for the child.             The


                                                                            A-5432-16T3
                                        20
girlfriend said they could not be such a placement option, and that they were not

interested in subjecting their children to contact with the Division.         The

caseworker advised the paternal relatives to contact the Division if they changed

their minds.

      In November 2015, the paternal relatives contacted the Division and

expressed an interest in being a placement option for the child. The girlfriend

learned that the Division was assessing their home for the child's placement. In

January 2016, the Division informed the judge about the paternal relatives'

interest, but indicated that it requested police reports due to concerns emanating

from their background checks. The brother had a criminal drug possession

charge.

      Later that month, the paternal relatives advised the caseworker that th ey

changed their minds and were no longer interested in being a placement option

for the child. The girlfriend expressed concerns about the father's behavior,

which the brother characterized as looking "psychotic," and the brother did not

want to expose his family to such behavior. And the girlfriend indicated that it

would not be in the best interest of the child to place him with them. The

caseworker conveyed concern that the paternal relatives waivered in their

willingness to be caretakers for the child. Indeed, at the end of January 2016,


                                                                          A-5432-16T3
                                       21
the paternal relatives were unwilling to supervise visits between defendants and

the child.

      In March 2016, the Division informed the judge (at a permanency hearing)

that it was still assessing the paternal relatives as a possible placement option.

The Division required the paternal relatives to undergo bonding evaluations,

visitation with the child, and licensing. The Division required these things

because it was concerned that the paternal relatives consistently waivered on

their willingness to have the child placed with them.

      At this point, the mother informed the Division she was no longer

interested in completing services, but instead, wanted the child placed with the

paternal relatives. 3 In January 2017, Dr. Lee advised that it would not be in the

best interest of the child to remove him from his resource parents. And around

this time, the girlfriend again expressed she was overwhelmed with the licensing

process. The Division then determined that it would not be in the best interest

of the child to place him with the paternal relatives.

      In April 2017, the paternal relatives filed an application for custody of the

child. The judge conducted the FG trial over the course of ten days in May 2017.


3
   In December 2016, the mother gave birth to a different child (who is not
involved in this appeal). The Division performed a Dodd removal as to that
child, placing the child in a different resource home.
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                                       22
During the trial, the judge performed a best interest of the child analysis to

determine the outcome of the paternal relatives' private custody application. The

Division offered testimony from witnesses, who testified as to the history of the

Division's efforts to place the child with the paternal relatives, and the paternal

relatives' inconsistent responses. The paternal relatives also testified, although

the judge placed greater weight on the documentary evidence than their

testimony.    Indeed, as the judge noted, the paternal relatives minimized a

domestic incident in January 2016 involving the father: "[t]heir testimony was

in clear contrast to the narrative that they presented to the Division," and the

incident led the paternal relatives to stop supervising visits with the child for ten

months.      The judge found the Division's witnesses more credible than

defendants' testimony, especially after considering expert testimony. And the

judge significantly relied on the testimony from the experts for the Division and

Law Guardian (Dr. Lee and Dr. Gambone), rather than the experts for defendants

(Dr. Quintana and Dr. Gerald Figurelli).

      Defendants contend that the paternal relatives requested that the Division

place the child with them in the early phases of the FN litigation. That never

occurred, and at the time the judge terminated the FN litigation, defendants did

not seek reconsideration or appellate review on that issue.          Moreover, the


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                                        23
paternal relatives declined to be a placement option during the fact finding

hearing. Although defendants argue that they desired placement of the child

with the paternal relatives throughout the FG case, the record demonstrates the

paternal relatives waivered, which led to the Division's concerns and subsequent

licensing process. Further, the judge rejected the paternal relatives' testimonies

that the Division delayed its placement evaluation and that the Division

misinformed them. It is clear to us that the Division ruled out the paternal

relatives because, as the judge found, it was not in the best interest of the child

to place him with them.

      Finally, as to prong three, the father provides no support for his claim that

a Division caseworker told him that the Division would not bring the child for

the third phase of the LWC evaluation. On the contrary, the record shows a long

history in which the father failed to complete the LWC process. The judge found

the father's testimony was contradicted by the record and was not credible, and

this finding is entitled to deference. C.S., 367 N.J. Super. at 112. Given that

the father had to complete the LWC assessment for reunification to occur, and

failed to do so for more than two years, the judge was justified in rejecting the

claim that it was the Division's fault the father did not complete it.




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                                       24
                                        D.

      The fourth prong of the best interests test requires a determination that the

termination of parental rights "will not do more harm than good." N.J.S.A.

30:4C-15.1(a)(4). The court must ask whether "after considering and balancing

the two relationships, the child will suffer a greater harm from the termination

of ties with [his] natural parents than from the permanent disruption of [his]

relationship with [his] foster parents." K.H.O, 161 N.J. at 355. This prong

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

severing of biological ties." Ibid. "The overriding consideration under this

prong remains the child's need for permanency and stability." L.J.D., 428 N.J.

Super. at 491-92. "Ultimately, 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. "A child cannot be

held prisoner of the rights of others, even those of his or her parents. Children

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

placement." C.S., 367 N.J. Super. at 111.

      As to the fourth prong, the judge credited Dr. Lee's and Dr. Quintana's

testimonies that the mother should not be the child's caretaker. And the judge

further credited Dr. Gambone's opinion that the child was dependent on the


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                                       25
resource parents for protection, guidance, and nurturance. Dr. Gambone found

that the child responded to the resource parents, and he had a strong, positive,

consistent state of emotional security with them.      Relying on this expert

testimony, the judge found the termination of parental rights would not cause

more harm than good.

      The mother argues that the judge erroneously used a "comparative"

standard in his analysis rather than analyzing whether termination will not do

more harm than good. The mother contends that such a comparison ignores

social science on the detriments of separation and adoption. The judge relied

on the experts' conclusions that the mother, unlike the resource parents, was

incapable of caring for the child. That testimony was offered, not in support of

why placement in the resource home was better than placement in defendants'

home, but rather to show how the child would suffer if his relationship with the

resource parents was severed and he was returned to a caretaker who was unable

to meet his needs. Specifically, the judge credited Dr. Lee's and Dr. Gambone's

testimonies that removing him from the resource home created a risk that he

would suffer severe and enduring harm. The judge may rely on such opinions

to find that the Division met its burden under prong four. N.J. Div. of Child




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                                      26
Prot. and Permanency v. P.D., 452 N.J. Super. 98, 122 (2017). Therefore, the

Division satisfied its burden on prong four as to defendants.4

      Moreover, the judge found that Dr. Lee's recommendation focused on

permanency. Dr. Lee was concerned about various aspects of the child's life,

including the father's substance abuse history, criminal history, and his

entrenched and maladaptive personality and character traits.              Dr. Lee

recommended that the father undergo a comprehensive substance abuse

evaluation, frequent random drug tests, anger management, individual therapy,

and sex offender treatment. But Dr. Lee recommended not delaying permanency

because in his opinion, the father had a poor prognosis for significant, lasting

change. Dr. Quintana similarly believed it was not in the child's best interest to

place him in the father's custody right away and, and although he recommended

that the father complete several services, Dr. Quintana stated that a long delay

of permanency would be a concern.

       The father contends that there was no evidentiary support for the judge's

findings regarding his substance abuse history, criminal history, or maladaptive

personality traits. But he himself testified that, as an adult, he was convicted of


4
   We note that the court appointed special advocate indicated that after an
August 10, 2018 visit, the child seemed to be a "very happy toddler," and that
the resource parents loved the child and wanted to adopt him.
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                                       27
two criminal offenses and once violated parole, and he admitted using Suboxone

in 2015 to curtail his addiction to another drug. Both Dr. Lee and Dr. Quintana

found that the father had "maladaptive personality traits." Dr. Quintana also

noted that maladaptive behavioral patterns can be at times difficult to treat, and

that the father would need to undergo additional counseling to better deal with

his judgment, problem-solving, frustration tolerance, impulsive behavior, and

anger issues.

      Finally, with respect to the father's claims about the resource parents'

fitness, the focus of prong four is not the resource parents' fitness, but "whether

the child will suffer a greater harm from the termination of ties with the natural

parent than from the permanent disruption of the child's relationship with the

foster parent[s]." N.J. Div. of Child Prot. & Permanency v. A.S.K., 457 N.J.

Super. 304, 329 (App. Div. 2017), aff'd o.b., 236 N.J. 429 (2019). Nevertheless,

the father's claims fail to account for expert testimony regarding the strength of

the child's ties with his resource parents as primary caretakers, which is the

paramount consideration under prong four.

                                      III.

      We reject the mother's argument, raised for the first time, that the judge

applied the wrong statutory standard by permitting the guardianship petition to


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                                       28
proceed towards termination of parental rights. We apply a de novo standard

because her contention raises a legal question.

      The Division withdrew its request for relief in its FN matter—brought

under N.J.S.A. 9:6-8.21—and at the same time, defendants stipulated they were

in need of services including substance abuse treatment, parenting classes, and

counseling. These services were necessary to ensure the health, safety, and

welfare of the child and a prerequisite to reunification. The judge found the

stipulations were credible and continued the Division's custody of the child

under N.J.S.A. 30:4C-12.

      N.J.S.A. 30:4C-12 provides, in pertinent part, that a court may issue an

order granting the Division's request for care, supervision, and custody if the

Division established the child requires care and supervision "to ensure the health

and safety of the child" and "the best interests of the child so require[.]" In cases

brought under N.J.S.A. 30:4C-12, "the court applies the well-established

standard of the best interest of the child." N.J. Div. of Child Prot. & Permanency

v. M.C., 456 N.J. Super. 568, 584 (App. Div. 2018).         But N.J.S.A. 30:4C-15

broadly allows the Division to initiate termination proceedings "as soon as an y

one of the circumstances in subsections (a) through (f)" of the statute "is

established." Relating to this case, subsection (c) pertains to "the best interests


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                                        29
of [the] child," and subsection (d) pertains to when a parent "has failed for a

period of one year to remove the circumstances or conditions that led to

removal[.]" N.J.S.A. 30:4C-15(c), (f).

      The mother contends that because defendants stipulated to the need for

services, the dismissal of the Title 9 action should have led the court to

adjudicate the Title 30 matter under N.J.S.A. 30:4C-15(d). She argues that the

statute applies to families in need of services to correct the circumstances that

led to a child's removal. Thus, the mother asserts that the judge should have

adjudicated the Title 30 matter under N.J.S.A. 30:4C-15(d), rather than under

the "best interest" factors of N.J.S.A. 30:4C-15(c) and N.J.S.A. 30:4C-15.1(a),

which apply to other guardianship proceedings. She argues that the judge erred

by considering only the "best interest" factors and not the "elements" of N.J.S.A.

30:4C-15(d), which include reasonable efforts to strengthen the parental

relationship and to assist defendants in eliminating the circumstances that led to

removal. Defendants also claim the judge lacked a "foundation for the four

prongs of the best interest test" because there were viable relatives willing to

adopt the child.

      Although the Division's efforts to comply with its statutory obligations

are relevant considerations for a judge's assessment of the best interests factors


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                                       30
at a guardianship trial, that has no effect on the Division's separate statutory

obligation to file a petition for the termination of the parental rights under

N.J.S.A. 30:4C-15(a) to (f). The plain language of N.J.S.A. 30:4C-15(f) directs

the Division, after obtaining custody, to bring an action to terminate parental

rights "as soon as any one of the circumstances in subsections (a) through (f)"

is established. The Division may initiate a petition to terminate parental rights

under N.J.S.A. 30:4C-15(c) if the four "best interests" prongs are met. N.J.S.A.

30:4C-15.1(a).    The Division may move to terminate parental rights under

N.J.S.A. 30:4C-15(d) when "it appears that a parent or guardian . . . has failed

for a period of one year to remove the circumstances or conditions that led to

the removal or placement," despite the Division's "reasonable efforts . . . to

encourage and strengthen the parental relationship" and to "assist the parent or

guardian in remedying the conditions[.]" The Division met those conditions

here.

        Once defendants stipulated to the Division's right to obtain custody, as

they were a family in need of services, "the Division is authorized to temporarily

remove children from the home of their parents or guardians to avert the child's

abuse and neglect . . . or when the child's best interests are not secured by their

parents who are in need of services[.]" N.J. Div. of Youth & Family Servs. v.


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                                       31
D.P., 422 N.J. Super. 583, 593 (App. Div. 2011). In its guardianship complaint,

filed on May 3, 2016, more than one year after the Dodd removal, the Division

alleged it was in the child's best interest to be placed in its custody, setting forth

the grounds under N.J.S.A. 30:4C-15(c). The complaint also alleged that despite

the Division's reasonable efforts, defendants were unwilling or unable to

eliminate the harm that led to the child's removal within one year, as set forth in

N.J.S.A. 30:4C-15(d). The Division alleged that because defendants failed to

make a permanent plan for the child or to engage in recommended services,

returning the child to defendants' care would expose him to an unacceptable risk

of harm.

      Upon filing the FG complaint and seeking to terminate defendants'

parental rights, the four prongs of N.J.S.A. 30:4C-15.1(a) provide the

"integrated multi-element test that must be applied to determine whether

termination of parental rights is in the best interests of the child." D.M.H., 161

N.J. at 375. The statutory scheme provides no safe harbor, or alternative track,

when FG complaints for guardianship involve a family in need of services under

N.J.S.A. 30:4C-12. Because the Division's petition alleged sufficient grounds

that justified moving for termination of parental rights under N.J.S.A. 30:4C-




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                                         32
15(c) and (d), the Division correctly moved towards terminating defendants'

parental rights.

                                       IV.

      Defendants argue the judge erroneously allowed testimony from Dr. Lee,

limited their experts' testimonies and excluded Facebook posts from the resource

father. We review these contentions for abuse of discretion. N.J. Div. of Child

Prot. & Permanency v. N.T., 445 N.J. Super. 478, 492 (App. Div. 2016). We

reverse discretionary determinations, as with all rulings on the admissibility of

evidence, only "when the trial judge's ruling was 'so wide of[f] the mark that a

manifest denial of justice resulted.'" N.J. Div. of Youth & Family Servs. v.

M.G., 427 N.J. Super. 154, 172 (App. Div. 2012) (quoting State v. Carter, 91

N.J. 86, 106 (1982)).

      As to Dr. Lee, the judge admitted him as an expert in clinical and forensic

psychology. The judge found that there was ample basis for Dr. Lee's opinions,

even if the judge were to "discount all of the formalized testing measures,"

including the Rorschach test. The judge acknowledged that defendants' experts

expressed concerns about "how the scoring was done" on the Rorschach test in

Dr. Lee's report, but he discounted these concerns because the defense experts

did not "provide testimony that the test itself yielded unfounded results ."


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                                       33
      The general non-exhaustive factors for a judge to consider in deciding

whether expert testimony should be permitted include:

            1) Whether the scientific theory can be, or at any time
            has been, tested;

            2) Whether the scientific theory has been subjected to
            peer review and publication, noting that publication is
            one form of peer review but is not a "sine qua non";

            3) Whether there is any known or potential rate of error
            and whether there exist any standards for maintaining
            or controlling the technique's operation; and

            4) Whether there does exist a general acceptance in the
            scientific community about the scientific theory.

            [In re Accutane, 234 N.J. 340, 398 (2018).]

These standards apply in Family Part proceedings. N.J. Div. of Child Prot. &

Permanency v. V.F., 457 N.J. Super. 525, 535 (App. Div. 2019).

      "'[T]he admissibility of scientific evidence may turn not only on its

reliability but the purpose for which it is offered.'" N.J. Div. of Child Prot. &

Permanency v. I.B., 441 N.J. Super. 585, 596 (App. Div. 2015) (quoting State

v. Hines, 303 N.J. Super. 311, 318 n. 1 (App. Div. 1997)). "'[T]he usefulness of

expert testimony depends in part on the context in which it is offered. Testimony

may be more helpful than prejudicial in one context, because it is being used for




                                                                         A-5432-16T3
                                      34
a limited purpose or because the factfinder knows its limitations.'"         Ibid.

(quoting Hines, 303 N.J. Super. at 526 n. 8).

      Where the Division seeks to terminate parental rights due to "potential

harm to the child based on separation from a foster parent with whom the child

has bonded," the proofs "should include the testimony of a well[-]qualified

expert[.]" J.C., 129 N.J. at 18-19. "Family Part judges regularly qualify experts

in psychology and psychiatry and hear the opinion testimony those experts offer

in a variety of contexts." I.B., 441 N.J. Super. at 596. Because of their "special

expertise" in ensuring the welfare of children, Family Part judges "are more than

capable of evaluating the opinions of experts and understanding the limitations

of behavioral science testimony in a way untrained jurors may not." Ibid. "[S]o

long as the proffered testimony meets the requirements of N.J.R.E. 702," the

court's evaluation of expert testimony "should be directed to the weight and not

the admissibility of the testimony." Id. at 596-97.

      The judge relied on Dr. Lee's sufficient foundation to find the results of

the Rorschach test scientifically reliable. Specifically, the results were found

valid and scientifically reliable in multiple prior cases, and Dr. Lee taught a

university course on how to administer the test. Although defendants' experts

testified that they could not tell from Dr. Lee's report what he was relying on


                                                                          A-5432-16T3
                                       35
when scoring the results of the Rorschach test, these concerns went to the weight

of the testimony, not its admissibility. I.B., 441 N.J. Super. at 596-97.

      Moreover, Dr. Lee noted that his testing was not in isolation, but "in the

context of other data," such as from interviews with defendants and reviews of

the collateral history. The judge noted that Dr. Lee's conclusions were informed

by "significant collateral data," including defendants' interviews with Dr. Lee,

and their failure to engage in court-ordered services. This led the judge to

"discount" the formalized testing measures that Dr. Lee used, and for the judge

to find that the Division satisfied its statutory burden. Furthermore, even Dr.

Quintana⸺the father's expert⸺testified that he did not support reunification

with the child.

      Finally, the judge correctly recognized that the Rorschach test results

related mainly to Dr. Lee's psychological assessments of defendants and had no

bearing on Dr. Lee's bonding evaluations, which were critical to Dr. Lee's

conclusion that severing the child's relationship with his resource family posed

a "significant risk of the child suffering severe and enduring psychological or

emotional harm." The judge relied on this conclusion to analyze the "best

interests" prongs of N.J.S.A. 30:4C-15.1(a).




                                                                            A-5432-16T3
                                       36
      As to Dr. Quintana, in the midst of the guardianship trial, and on the date

of a scheduled sibling visit at the paternal relatives' home, defendants arranged

for him to conduct a second bonding evaluation of the child with the paternal

relatives. The judge excluded Dr. Quintana's supplemental report and testimony

regarding that mid-trial bonding evaluation.         The judge excluded the

supplemental report and testimony on fundamental fairness grounds, finding that

defendants had "a design to mislead" and conceal the bonding evaluation from

the Division and the Law Guardian, who were surprised the evaluation occurred.

The judge also concluded it would be prejudicial to permit a second round of

bonding evaluations during the trial.

      "[A] trial judge has the discretion to preclude expert testimony on a

subject not covered in the written reports furnished in discovery." Ratner v.

Gen. Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990); accord Anderson

v. A.J. Friedman Supply Co., 416 N.J. Super. 46, 72 (App. Div. 2010). "Expert

testimony that deviates from the pretrial expert report may be excluded if the

court finds 'the presence of surprise and prejudice to the objecting party.'"

Conrad v. Robbi, 341 N.J. Super. 424, 440 (App. Div. 2001) (quoting Velazquez

ex rel. Velazquez v. Portadin, 321 N.J. Super. 558, 576 (App. Div. 1999)). Dr.

Quintana's excluded supplemental report mainly reinforced his earlier testimony


                                                                         A-5432-16T3
                                        37
from his December 2016 bonding evaluations; therefore it was doubtful the

report "would have been a heavy weight in the evidential balance," had the court

considered it. Ratner, 241 N.J. Super. at 203.

      As to the Facebook posts, we see no abuse of discretion. The judge noted

that the posts pertained to the resource parents and were obtained through

unsuccessful mediation efforts. The judge therefore struck the social media

pages from the record.

      To the extent that we have not addressed the parties' remaining arguments,

we conclude that they lack sufficient merit to warrant discussion in a written

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

      Affirmed.




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