                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4668-18T4

NEW JERSEY DIVISON
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

J.R.,

          Defendant-Appellant,

and

W.A.,

     Defendant.
___________________________

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

     a Minor.
____________________________

                    Submitted June 1, 2020 – Decided July 13, 2020

                    Before Judges Ostrer and Susswein.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Bergen County,
            Docket No. FG-02-0044-19.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Robyn A. Veasey, Deputy Public Defender,
            of counsel; Phuong Vinh Dao, Designated Counsel, on
            the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jane C. Schuster, Assistant Attorney
            General, of counsel; Peter Damian Alvino, Deputy
            Attorney General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Meredith Alexis Pollock, Deputy
            Public Defender, of counsel; Linda Vele Alexander,
            Designated Counsel, on the brief).

PER CURIAM

      Defendant, J.R. (John), 1 appeals from the Family Part's June 10, 2019,

order terminating parental rights to his biological daughter, Cara, then three and

one-half years old. Judge Jane Gallina Mecca convened a guardianship trial

after which she ruled that the Division of Child Protection and Permanency

(Division) proved the four prongs of the best-interests-of-the-child test, N.J.S.A.

30:4C-15.1(a), by clear and convincing evidence.          On appeal, defendant



1
 For the reader's convenience, we use pseudonyms for defendant, codefendant
W.A. (Willa), their daughter, Cara, and the child's maternal grandmother,
Wanda.
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                                        2
challenges the trial court's findings with respect to all four prongs. The Division

and Cara's Law Guardian contend the evidence at trial was sufficient and urge

us to affirm the judgment.

      The record before us clearly shows that John has chosen to be a complete

stranger to his daughter.        The Division presented overwhelming and

uncontradicted evidence that defendant did not cooperate with services offered

by the Division, did not appear for evaluations or drug screenings, did not attend

court proceedings, including the guardianship trial, and did not visit Cara or seek

to visit with her. Cara is currently placed with her maternal grandmother,

Wanda, who is willing and ready to adopt her.

      After carefully reviewing the record in view of the parties' arguments,

applicable legal principles, and standard of review, we affirm the termination of

John's parental rights substantially for the reasons set forth in Judge Mecca's

oral opinion. The judgment will free Cara for adoption by her grandmother,

who will continue to provide her permanency, stability, and love.

                                        I.

      We briefly summarize relevant events in the long procedural history

leading up to this appeal. On October 24, 2016, Cara was placed into the care

and supervision of the Division because of allegations that her mother, Willa,


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                                        3
was under the influence of illicit substances and unable to care for the child.

John did not appear at the hearing. The judge found that the Division made a

prima facie showing that Cara was abused or neglected. The court ordered John

and Willa to attend a substance abuse evaluation and submit to random urine

screens, hair follicle, and nail tests. Additionally, the court ordered that any

contact between Cara and her parents must be supervised by the Division or a

Division-approved person.

      On March 1, 2018, Cara was placed in the home of her maternal

grandmother, Wanda. On October 2, 2018, a Family Part Judge entered a

permanency order finding the Division's permanency plan of termination of

parental rights was appropriate and acceptable because both Willa and John had

untreated substance abuse issues and were noncompliant with services. On

November 13, 2018, the Division filed a complaint for guardianship.

      On June 10, 2019, Willa appeared before the court telephonically and

surrendered her parental rights to Cara so that Wanda could adopt her. Judge

Mecca then held a guardianship trial concerning John's parental rights. John did

not appear at the trial and no evidence was presented on his behalf. Judge Mecca

issued an oral decision terminating John's parental rights after finding that the

Division met its burden of proof under the best-interests-of-the-child test.


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                                        4
                                         II.

        We presume the parties are familiar with the facts relevant to this

litigation.   We focus on the evidence adduced at the guardianship hearing

concerning John's persistent efforts to evade the Division, revealing his

indifference towards Cara. We need not, however, recount every instance when

defendant failed to reply to notices, meet with Division caseworkers, answer his

phone or return voicemail or text messages, submit to drug tests, submit to an

evaluation by a psychologist, attend court hearings, or attend scheduled visits

with Cara.

        The gist of defendant's argument is that the Division did not prove that his

mother actually gave him the mail the Division sent to him while he lived at her

house. That argument is implausible. But even were we to accept his bald

assertion that his mother suppressed written correspondence sent to him, and

failed to tell him when Division employees came to the house to speak with him

in person, the occasional contacts between defendant and the Division amply

support the trial court's findings with respect to his indifference to reuniting with

Cara.

        On one occasion, John walked away from a Division employee who came

to the house. On two other occasions when Division employees visited John's


                                                                             A-4668-18T4
                                          5
mother's house unannounced, he was home but refused to leave his bedroom to

talk to the employees. On another occasion, a Division employee went to John's

home but was informed by John's mother that he did not want to speak with the

employee. On yet another occasion, a Division employee went to the home

accompanied by Wanda. John briefly spoke with Wanda but refused to speak to

the employee.

      Even when John at one point expressed some interest in receiving services

from the Division, he failed to follow through. Instead, he returned to his pattern

of refusing to communicate with the Division, hanging up and turning off his

phone, failing to answer voicemail messages, refusing to submit to

psychological and substance abuse evaluations, failing to attend court hearings,

and failing to attend scheduled visits with Cara.

      At the guardianship trial, the court heard testimony from a psychologist

and from a Division caseworker. No witnesses testified on behalf of John.

      The Division's expert, Dr. Dyer, testified that because he was unable to

meet with John to conduct an evaluation, he had no opinion as to John's

parenting capacity or psychological functioning. Dr. Dyer did opine, however,

that Wanda is a competent and well-adjusted adult who is emotionally invested

in Cara. He also testified that Cara referred to Wanda as "mommy," indicating


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                                        6
that after two years of placement together they had developed a profound

attachment to each other.

      Dr. Dyer further opined that removing Cara from Wanda's care would be

distressing, lead to behavior regression—including aggressive and withdrawing

behavior—and would place Cara at risk for long-term effects on her self-esteem,

trust, and capacity for attaching to new caretakers. Dr. Dyer testified that

delaying permanency for Cara would cause tremendous harm, in part because of

her strong attachment to Wanda and John's absence in her life.

      A Division caseworker testified as to John's unresponsiveness and outright

evasions, laying out the numerous instances when John refused to engage with

the Division, or with Cara. On cross-examination, she acknowledged that the

Division had no personal knowledge if the letters the Division sent to John's

mother's home were actually given to John. 2

      The trial court made several findings of fact, including that John had

chosen not to take advantage of any Division services. The court also found that

he chose not to take advantage of any visitation opportunities.      The court



2
   That cross examination appears to be the gravamen of John's trial strategy.
We note that John did not testify or present any evidence to support his claim
that his mother did not relay Division correspondence and in-person or
telephonic messages to him.
                                                                        A-4668-18T4
                                       7
concluded that John had "no true interest" in reunifying with Cara. The court

agreed with Dr. Dyer that Cara's safety and emotional well-being depended on

her remaining in Wanda's care.

                                     III.

      We begin our analysis by acknowledging the legal principles governing

this appeal. A parent has a constitutional right to raise his or her biological

child, which "is among the most fundamental of all rights." N.J. Div. of Youth

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

& Family Servs. v. E.P., 196 N.J. 88, 102 (2008)). However, the State as parens

patriae may act to protect a child from physical or emotional harm. Ibid. (citing

E.P., 196 N.J. at 102). A parent's constitutional rights, in other words, are not

absolute and must yield to the State's interest in protecting a child from harm or

endangerment. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599

(1986) (citing In re Dep't of Pub. Welfare, 412 N.E.2d 28, 36 (Mass. 1981)).

Accordingly, the State can seek to sever the parent-child relationship when the

interests of the parent and child are irreconcilable. Ibid. (citing Dep't of Pub.

Welfare, 412 N.E.2d at 36). Importantly, a child has a right to a permanent,

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

Super. 76, 111 (App. Div. 2004).


                                                                          A-4668-18T4
                                        8
      The termination of parental rights should only be pursued when "proof of

parental unfitness is clear." F.M., 211 N.J. at 447. In a termination proceeding,

the trial court determines whether the Division has satisfied the four elements

of the best-interests-of-the-child statutory test. N.J.S.A. 30:4C-15.1(a). That

statute requires the Division prove by clear and convincing evidence that:

            (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 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.

            [Ibid.]

      When applying the best interests test, a trial court must pay specific

attention to a child's need for permanency and stability. In re Guardianship of


                                                                         A-4668-18T4
                                       9
D.M.H., 161 N.J. 365, 385–86 (1999). As a result, the trial court must consider

"not only whether the parent is fit, but also whether he or she can become fit

within time to assume the parental role necessary to meet the child's needs."

N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div.

2006) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).

      The scope of appellate review of the decision to terminate parental rights

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

(citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate

courts must defer to a trial judge's findings of fact if supported by adequate,

substantial, and credible evidence in the record." Ibid. (citing In re Guardianship

of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). An appellate court should

defer to the trial court's credibility determinations and to its "special expertise

in the field of domestic relations." N.J. Div. of Youth & Family Servs. v. R.G.,

217 N.J. 527, 553 (2014) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)).

An appellate court therefore should not alter the findings below unless there was

a manifest denial of justice. N.J. Div. of Youth & Family Servs. v. V.K., 236

N.J. Super. 243, 255 (App. Div. 1989) (citing Meshinsky v. Nichols Yacht Sales,

Inc., 110 N.J. 464, 475 (1988)). However, appellate courts review de novo the




                                                                           A-4668-18T4
                                       10
trial court's interpretation of the law and legal findings. R.G., 217 N.J. at 552

(citing Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).

                                        IV.

      John contends that the trial court erred in finding that the Division

satisfied prong one of the statutory test because the Division never substantiated

or established that he abused or neglected the child. That argument misconstrues

the law. John's failure to nurture or care for Cara for a prolonged period of time

amply satisfies this prong.

      Under the first prong of the best-interests-of-the-child test, the trial court

examines the effect of the harm that stems from the parent-child relationship

over time. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004).

It may consider both physical and psychological harm and, therefore, may base

its termination decision on emotional injury in the absence of physical harm.

See In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977) ("The

absence of physical abuse or neglect is not conclusive on the issue of custody.").

Further, "[a] parent's 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." D.M.H., 161 N.J. at 379 (citing In re Guardianship

of K.H.O., 161 N.J. 337, 352–54 (1999)).


                                                                            A-4668-18T4
                                       11
      Furthermore, a parent's "persistent failure to perform any parenting

functions and to provide nurture, care, and support" to a child is "a parental harm

to that child arising out of the parental relationship" under the statute. Id. at 380

(citing K.H.O., 161 N.J. at 352–54). Stated differently, "[s]erious and lasting

emotional or psychological harm to children as the result of the 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) (emphasis added) (citing J.C., 129 N.J. at 18).

      In this instance, Judge Mecca found that John "has shown no active role

in attempting to visit with the child." We conclude the trial record provides

ample support for Judge Mecca's conclusion that John's inaction has caused

harm sufficient to satisfy the first prong of the four-part test.

                                         V.

      We next address John's contention that the trial court erred in finding the

second prong of the best-interests-of-the-child test. That prong requires the

Division to demonstrate that 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."

N.J.S.A. 30:4C-15.1(a)(2). This prong, which is closely related to the first


                                                                             A-4668-18T4
                                        12
prong, can be demonstrated in two alternative ways. K.H.O., 161 N.J. at 352.

First, the Division can show that it is reasonably foreseeable that the parent will

not or cannot cease to inflict harm upon the child. A.W., 103 N.J. at 606–07,

615–16.    This can be established by proving parental "dereliction and

irresponsibility," which can be shown by proof of continued substance abuse,

the inability to provide a stable home, and the withholding of nurturing and

attention. K.H.O., 161 N.J. at 353.

      The other way of establishing the second prong is by presenting evidence

that removing the child from his or her resource placement would cause serious

and enduring mental or emotional impairment.          N.J.S.A. 30:4C-15.1(a)(2).

Under this alternative approach, a trial court examines the bonds between a child

and his or her resource parent(s). See D.M.H., 161 N.J. at 382 (finding the

second prong from N.J.S.A. 30:4C-15.1(a) established partly based upon the

court-appointed expert's determination that "breaking the children's bond with

their foster family would cause substantial and enduring harm to the children").

      We believe the proofs submitted at the guardianship trial amply establish

the second prong under both theories.              Defendant's dereliction and

irresponsibility in the form of withholding of nurturing and attention is self-

evident. The trial court in its opinion, however, focused on the second option.


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                                       13
Judge Mecca concluded, "[i]n this case, Dr. Dyer testified that the child, [Cara],

was doing quite well with the current resource parent, her grandmother, and the

removing the child from that relationship would have both short-term and long-

term effects that would be devastating to [Cara] and would cause serious harm

to her."

      We hold the trial court acted well within its discretion in crediting Dr.

Dyer's unrefuted testimony.      The expert's opinion constitutes substantial

credible evidence to clearly and convincingly satisfy the second prong.

                                       VI.

      We turn next to the third prong of the statutory test, which requires the

Division to show that it 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 the termination of parental

rights." N.J.S.A. 30:4C-15.1(a)(3). As a result, the trial court must decide if

the Division made reasonable efforts to reunify the family. K.H.O., 161 N.J. at

354 (citing N.J.S.A. 30:4C-15.1(a)(3)). Pursuant to statute, "reasonable efforts"

are defined as:

            (1) consultation and cooperation with the parent in
            developing a plan for appropriate services;



                                                                          A-4668-18T4
                                       14
            (2) providing services that have been agreed upon, to
            the family, in order to further the goal of family
            reunification;

            (3) informing the parent at appropriate intervals of the
            child's progress, development, and health; and

            (4) facilitating appropriate visitation.

            [N.J.S.A. 30:4C-15.1(c).]

      We have previously recognized that reasonable efforts "vary depending

upon the circumstances of the removal." N.J. Div. of Youth & Family Servs. v.

F.H., 389 N.J. Super. 576, 620 (App. Div. 2007) (citing N.J. Div. of Youth &

Family Servs. v. A.G., 344 N.J. Super. 418, 437 (App. Div. 2007)).             The

Division's success regarding this prong is not measured by the parent's

participation in the necessary services. D.M.H., 161 N.J. at 393. "[E]ven [the

Division's] best efforts may not be sufficient to salvage a parental relationship."

F.M., 211 N.J. at 452. Pursuant to statute, the Division must: (1) work with

parents to develop a plan for services; (2) provide the necessary services; (3)

facilitate visitation; and (4) notify parents of the children's progress during an

out-of-home placement. N.J.S.A. 30:4C-15.1(c).

      John contends the Division did not prove the third prong by clear and

convincing evidence because several notices were delivered to his mother's

address and the Division has no proof John actually received those notices. We

                                                                           A-4668-18T4
                                        15
have already noted this contention is utterly devoid of merit. John provided his

mother's address for the Division to communicate with him.           On multiple

occasions John's mother told a Division employee she would pass along a

mailing or message. Furthermore, although John's modus operandi was to avoid

personal contact with Division employees, there were instances when a Division

employee was able to speak with John and hand deliver to him notices of

upcoming court dates and evaluations.

      The record before us thus clearly supports the trial court's finding that the

Division offered various services to John, including substance abuse

evaluations, visitation, and psychological evaluations—"none of which [John]

took advantage of or sought to complete." Additionally, the court found "the

Division had kept [John] apprised of not only the orders that were entered by

the court but also appointments that were made for him in terms of evaluation

for substance abuse as well as a psychological evaluations." The court also

found the Division provided John ample opportunity to visit Cara, and he failed

to take advantage of the opportunity.

      Judge Mecca further noted, "the reasonableness of the Division's efforts

is not measured by their success. In this case there was going to be no success

because [John] has made no efforts to even partake in those services." We agree


                                                                           A-4668-18T4
                                        16
completely with Judge Mecca's conclusion. We cannot imagine what further

steps the Division might reasonably have taken to offer services and to induce

John to take advantage of them. The failure to reunite defendant and Cara is in

no way attributable to the Division. John alone is responsible for this failure.

                                      VII.

      Finally, John contends the Division failed to prove by clear and

convincing evidence that terminating his rights would not do more harm than

good. He claims, for example, that the Division provided no evidence regarding

Cara's bond with John, noting that Dr. Dyer never completed an evaluation of

any such bond. That argument ignores the fact that John failed to submit to an

evaluation. He alone is responsible for the absence of a bonding evaluation.

But even without a formal psychological evaluation, it is hard to imagine how a

three-year-old might bond with a father who chooses not to visit her.

      The fourth prong of the best interests test requires that the Division

demonstrate that "[t]ermination of parental rights will not do more harm than

good." N.J.S.A. 30:4C-15.1(a)(4). The court may rely on expert testimony

when conducting its analysis and may balance the potential injury that a child

could experience through the termination of parental rights against the harm that

the child might suffer if removed from the resource placement. K.H.O., 161


                                                                          A-4668-18T4
                                       17
N.J. at 355, 363. Termination of parental rights is necessary when it permits a

child to have a secure and permanent home. N.J. Div. of Youth & Family Servs.

v. B.G.S., 291 N.J. Super. 582, 592–95 (App. Div. 1996). Relatedly, a child

should not "languish indefinitely" in an out-of-home placement while a parent

tries to correct his or her parenting difficulties. N.J. Div. of Youth & Family

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

Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004)).

      Judge Mecca found the "evidence in this case was quite clear" because

both a caseworker and Dr. Dyer testified that the child was thriving in Wanda's

care. Additionally, the court observed that Wanda was "the focal love and

support interest to the child" and that Cara referred to her as her mother. The

court accepted Dr. Dyer's expert opinion that if Cara and Wanda's bond was

disrupted, Cara would suffer serious emotional and psychological trauma.

      Finally, Judge Mecca discussed Cara's best interests:

            It is contrary to the child's best interest to prolong
            permanent placement as described by Dr. Dyer, because
            the natural parent is unable to care for the child for a
            protracted period. Once again, [Willa] has already
            entered into a[n] identified surrender, and [John] has
            shown no true interest, even though he may have stated
            at sometimes about his request to be reunited with
            [Cara], but has taken no part in any services nor visited
            with the child for an extended period of time and has
            basically abandoned [Cara].

                                                                        A-4668-18T4
                                      18
      We agree completely with Judge Mecca's conclusion that the serious harm

Cara would face if she was separated from Wanda outweighs any harm from

terminating John's parental rights. There is no reason for Cara to languish

indefinitely while John continues to evade the Division and the services it offers.

Wanda is ready and able to adopt Cara and provide her with permanency that

would benefit her. Given the need for permanency and Cara's strong bond with

Wanda, we do not hesitate to conclude that the Division proved the fourth prong

by clear and convincing evidence.

      To the extent we have not already addressed them, any additional

arguments John has made lack sufficient merit to warrant discussio n in this

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

      Affirmed.




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                                       19
