                                      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                                 NOT FOR PUBLICATION WITHOUT THE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-4943-18T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

T.D., T.B.B. and A.D.S.,

          Defendants,

and

E.B.,

     Defendant-Appellant.
______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF
T.B., K.D., J.D., E.B. and J.D.,

     Minors.
______________________________

                   Submitted April 2, 2020 – Decided May 27, 2020

                   Before Judges Suter and DeAlmeida.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Gloucester County,
            Docket No. FG-08-0058-18.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Robyn A. Veasey, Deputy Public Defender,
            of counsel; Amy M. Williams, Designated Counsel, on
            the brief).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Melissa H. Raksa, Assistant Attorney
            General, of counsel; Erica L. Sharp, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor J.D. (Meredith Alexis Pollock,
            Deputy Public Defender, of counsel; Joseph Hector
            Ruiz, Designated Counsel, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minors E.B. and J.D. (Meredith Alexis
            Pollock, Deputy Public Defender, of counsel; Louise
            M. Cho, Assistant Deputy Public Defender, of counsel
            and on the brief).

PER CURIAM

      Defendant E.B. appeals a judgment—following a one-day trial—

terminating his parental rights to three of his six children: J.D. (John) born in

2014, E.D. (Eric) born in 2016 and J.D. (Jane) born later in 2016. Their mother,

T.D. (Theresa), surrendered her parental rights and is not a participant in this

appeal. We affirm the trial court's order largely for the reasons expressed in its

comprehensive, oral opinion.

                                                                          A-4943-18T1
                                        2
      The Division of Child Protection and Permanency (Division) provided

services for Theresa in 2014 because of John's failure to thrive and a respiratory

infection, and again in 2016, because Eric was born prematurely, and there were

concerns about Theresa's ability to care for all five1 of her children.

      In September 2016, the Division removed John and Eric, and two of

Theresa's other children, due to her loss of housing and financial assistance and

filed a complaint for the children's care, custody and supervision (the FN

complaint) shortly after this. Defendant did not live with Theresa and the

children. Theresa advised defendant about the removal, but he was not served

with the papers. He did not attend the court proceeding or return the Division's

subsequent phone call. The court's order granted him supervised visitation with

the children.

      Jane was born in December 2016, weighing only two pounds. Defendant

did not return multiple phone calls to him from the Division. After a search, he

was served with the FN complaint in May 2017.             He was then given an

application for a public defender, but did not submit it until December 2017. In

the interim, the Division moved Eric to a resource home, and moved John to a



1
  Theresa surrendered her rights to the other two children. Defendant is not the
father of these children. The fathers of these children have not appealed.
                                                                          A-4943-18T1
                                         3
different home. Jane was added to the FN complaint and placed in Eric's

resource home. The trial court ordered defendant to be evaluated for services.

      Defendant contacted the Division for the first time on June 19, 2017. He

knew the Division had placed the children, claimed where he was living was not

suitable for them, and said he lacked income because he paid support for six

children. Defendant did not know how he could care for three children on his

own and had not acted sooner because he thought the Division would return

them to Theresa after she completed services. He could not give the Division

the names of relatives or friends as possible placements.

      Dr. David Bromberg, Psy.D., conducted a cognitive assessment and

parenting capacity evaluation of defendant. He concluded defendant was not

suffering from significant symptoms of depression, anxiety or psychiatric issues,

and did not make treatment recommendations. Defendant's cognitive testing

also showed he was not in need of services. Defendant told Dr. Bromberg he

never was the primary caretaker of his six children and was reluctant to take

custody of his three children with Theresa—preferring that she provide for their

care. It was Dr. Bromberg's opinion if defendant decided to take custody, he

"appear[ed] to be capable to provide a safe and stable environment for them."




                                                                         A-4943-18T1
                                       4
      The Division's efforts to place the children with a maternal relative were

not successful. In April 2018, the Division filed a guardianship complaint

seeking to terminate parental rights.

      Defendant did not attend his scheduled psychological and bonding

evaluation with Dr. James Loving, Psy.D., in August 2018.            It was not

rescheduled because "he had been out of contact with the Division and it was

not likely that he was going to attend." His attorney explained to the court in

November 2018, that defendant's work schedule resulted in missed visits and he

still did not have suitable housing.

      Defendant exercised supervised visitation with the children from July

2017 to November 2018, and then once in February 2019. He last visited with

them in March 2019.

      At the guardianship trial in June 2019, Theresa completed an identified

surrender of her five children, including John, Eric and Jane. Dr. Loving

testified about the "strong attachments that the kids have developed with their

caregivers and they are mostly positive." By mostly positive, he meant that the

children's history to that point, "made their attachment experiences

complicated." They had all "had losses, separations, unpredictability. . . . And

so they are kids who [were] at risk for longer term relationship problems, social


                                                                         A-4943-18T1
                                        5
problems." Ibid. Dr. Loving noted in his report that Eric and Jane were placed

with their resource family when they were infants and "relate as if this is their

family." The longer the children did not have permanency, "the higher their risk

will be for long-term emotional difficulties." All the resource parents were

willing to adopt.

      Dr. Loving concluded that Theresa would not be able to "provide a safe,

stable, healthy home to the children in the foreseeable future[,]" and that delay

would increase the harm to the children. He testified that "terminating parental

rights and allowing these kids to be adopted by their current caregivers would

not cause more harm than good."

      The adoption case worker testified that although the children were in

placement for two years, defendant did not obtain appropriate housing for them.

He did not reschedule his psychological evaluation despite being contacted by

the previous caseworker. Defendant never had a plan for caring for the children

nor did he offer the names of other relatives to be assessed. Additionally he had

not called about the children or maintained contact with the Division.

      In her oral decision, Judge Mary K. White found the witnesses to be

credible. The court found defendant (and the other fathers in this case) "ignored




                                                                         A-4943-18T1
                                       6
their parental obligations" and "[were] not providing any planning, any

nurturance, any affection that’s meaningful."

      The court found defendant had the ability to offer an alternative because

he did not have "cognitive difficulties" or "known mental health difficulties."

Despite this, he did not communicate with the Division and visited the children

sporadically. The court found the Division's services were reasonable. The

court concluded that defendant "did not want to provide the care directly for

[his] . . . children" and instead was counting on Theresa "to be restored to health

so she could [care for the children] . . . in [his] . . . absence, as had been the

situation that [he’d] always envisioned." The court concluded that termination

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

were "thriving" in their current placements. The children's resource families

would be able to mitigate any harm from termination but defendant was "in no

position to mitigate . . . the harm to these children."

      On appeal, defendant argues:

             I.  THE   TRIAL   COURT   INCORRECTLY
             CONCLUDED THAT THE DIVISION HAD
             ESTABLISHED, BY CLEAR AND CONVINCING
             EVIDENCE, ALL FOUR PRONGS OF THE BEST
             INTERESTS STANDARD, WHICH IS THE
             MINIMUM LEGAL THRESHOLD REQUIRED FOR
             ANY       CONSTITUTIONALLY      VALID


                                                                           A-4943-18T1
                                         7
           TERMINATION            OF         THE     PARENTAL
           RELATIONSHIP[.]

           A. THE TRIAL COURT’S FACTUAL FINDINGS
           SUPPORTING ITS CONCLUSIONS UNDER PRONG
           ONE AND PRONG TWO OF THE BEST INTEREST
           STANDARD ARE NOT SUPPORTED BY THE
           RECORD, SHOULD NOT BE AFFORDED
           DEFERENCE BY THIS COURT, AND DO NOT
           SUPPORT TERMINATION OF THE FATHER’S
           PARENTAL RIGHTS[.]

           B. THE DIVISION’S FOCUS OF ITS EFFORTS IN
           PROVIDING SERVICES NEARLY EXCLUSIVELY
           TO THE MOTHER AND THE TRIAL COURT’S
           APPROVAL OF THAT APPROACH UNDER PRONG
           THREE OF THE BEST INTEREST STANDARD
           WERE CLEARLY ERRONEOUS[.]

           C. THE TRIAL COURT ERRED IN FINDING THAT
           TERMINATING THE FATHER’S PARENTAL
           RIGHTS TO JOHN, ERIC, AND JANE, FREEING
           THEM TO BE ADOPTED BY DIFFERENT
           RESOURCE PLACEMENTS, WOULD NOT DO
           MORE HARM THAN GOOD UNDER THE FOURTH
           PRONG OF THE BEST INTEREST STANDARD[.]

                                   II.

     To terminate parental rights, N.J.S.A. 30:4C-15.1(a) requires that the

Division 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;



                                                                      A-4943-18T1
                                         8
            (2) The parent is unwilling or unable to eliminate the
            harm facing the child or is unable or unwilling to
            provide a safe and stable home for the child and the
            delay of permanent placement will add to the harm
            ....;

            (3) The [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.

      A trial court's decision to terminate parental rights is subject to limited

appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605

(2007); see Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family

courts' special . . . expertise in family matters, appellate courts should accord

deference to family court factfinding."). The family court's decision to terminate

parental rights will not be disturbed "when there is substantial credible evidence

in the record to support the court's findings." N.J. Div. of Youth & Family Servs.

v. E.P., 196 N.J. 88, 104 (2008).

      We have carefully examined the record in light of the arguments posed,

concluding the trial court's findings were supported by substantial credible

evidence on the record as a whole. We defer to those findings. See N.J. Div. of

Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012); Cesare, 154 N.J.

                                                                          A-4943-18T1
                                        9
at 413. We affirm substantially for the reasons set forth by Judge White in her

oral decision, adding these comments.

      The harm necessary to prove prong one is not limited to physical harm; it

includes a parent's inability to provide a safe, stable and permanent home for the

child. See In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Prong two

is satisfied where a parent "is unable or unwilling to overcome or remove the

harm," that led to the Division's involvement. In re Guardianship of K.H.O.,

161 N.J. 337, 348 (1999). The evidence supported the court's findings under

prongs one and two because defendant did not consistently visit with the

children, did not obtain suitable housing for the children nor did he make any

plan for taking care of them in the future. He was simply waiting for the children

to be returned to Theresa.

      Defendant contends he was denied "meaningful due process" because he

was not served and a year elapsed before he could "be heard by any trial judge."

However, the evidence was he did not respond to multiple calls from the

Division and was aware the children were in placement. After he was served,

he did not stay in contact with the Division, obtain suitable housing or develop

a plan for how he would care for his children. He delayed months in filling out

the application for an attorney and this delayed the proceedings. Defendant was


                                                                          A-4943-18T1
                                       10
granted supervised visitation. He has not explained how he was prejudiced by

the delay in service. See N.J. Div. of Child Prot. & Permanency v. A.S.K., 236

N.J. 429, 430 (2019) (where the Court "perceive[d] no prejudice" to the

defendant in the delay of service).

      Defendant argues the trial court erred by finding the third prong was

satisfied because the Division should have assisted him in obtaining housing and

instead focused its efforts on Theresa. The statute's third prong requires that the

State make reasonable efforts to help a parent correct the circumstances that led

to the child's outside placement by providing services.          N.J.S.A. 30:4C-

15.1(a)(3).   Reasonable efforts must consider "the abilities and mental

conditions of the parents." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.

Super. 418, 442 (App. Div. 2001).

      The evidence was consistent with the trial court's conclusion that

defendant never had a plan to care for the children; he wanted Theresa to care

for them. He did not identify housing for himself and the children. He was

provided appropriate services according to his evaluations. He did not advise

what other services he needed.




                                                                           A-4943-18T1
                                       11
      Defendant argues the trial court should not have found the fourth prong

under the statutory test because he did not have a bonding evaluation. He also

argues that separating the siblings will harm the children.

      Prong four does not require that "no harm will befall the child as a result

of the severing of biological ties." K.H.O., 161 N.J. at 355. A court must

consider "the child's age, her overall health and development, and the realistic

likelihood that the [natural] parent will be capable of caring for the child in the

near future." Id. at 357.

      Although defendant did not have a bonding evaluation, there were

evaluations of the children, Theresa and the resource families. It was not

rebutted that the children were bonded with the resource families and visiting

with their siblings. Defendant visited irregularly and then stopped in March

2019. When the case was tried in June 2019, the children had been living in

resource homes since they were infants, and in Jane's case since she was a

newborn; they were thriving. The testimony was not rebutted that the resource

parents would be able to mitigate the potential harm from termination, but that

defendant, who did not allege he had close relationships with the children, could

not. There was ample evidence here to support the trial court's finding that

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


                                                                           A-4943-18T1
                                       12
Affirmed.




                 A-4943-18T1
            13
