                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4892-16T4
                                                                     A-4893-16T4

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

          Plaintiff-Respondent,

v.

P.C.G.-H. and R.J.H.,

     Defendants-Appellants.
______________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF T.J.H.,

     a Minor.
______________________________________

                    Argued September 26, 2018 – Decided October 5, 2018

                    Before Judges Alvarez and Mawla.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Essex County, Docket
                    No. FG-07-0116-17.

                    James D. O'Kelly, Designated Counsel, argued the
                    cause for appellant P.C.G.-H. (Joseph E. Krakora,
               Public Defender, attorney; James D. O'Kelly, on the
               briefs).

               Anne E. Gowen, Designated Counsel, argued the cause
               for appellant R.J.H. (Joseph E. Krakora, Public
               Defender, attorney; Anne E. Gowen, on the briefs).

               Monisha A. Kumar, Deputy Attorney General, argued
               the cause for respondent (Gurbir S. Grewal, Attorney
               General, attorney; Jason W. Rockwell, Assistant
               Attorney General, of counsel; Monisha A. Kumar, on
               the brief).

               James J. Gross, Designated Counsel, argued the cause
               for minor (Joseph E. Krakora, Public Defender, Law
               Guardian, attorney; James J. Gross, on the brief).

PER CURIAM

        Pamela (P.C.G.-H.) and Robert (R.J.H.) are the parents of Teresa

(T.J.H.).1 In these consolidated appeals, both parents challenge a judgment,

which terminated their parental rights and granted the Division of Child

Protection and Permanency (Division) guardianship of Teresa. We affir m.

                                           I.

        The following facts are taken from the record. Pamela and Robert married

in 2006. Teresa was born in 2011, and is presently seven years old.




1
    We utilize fictitious names to protect the child and the parties' privacy.
                                                                             A-4892-16T4
                                           2
      The Division began its involvement with the family in July 2014, after it

received a referral from the Clara Maass Hospital emergency room. Pamela had

brought then three-year-old Teresa to the hospital to treat her asthma. While

Teresa was receiving her nebulizer treatments, Pamela left her alone in the room

and was discovered in the hospital lobby. Hospital staff reported Pamela was

acting belligerently, arguing with workers, and causing a substantial

disturbance. According to hospital staff, Pamela began changing her clothes in

view of other hospital visitors.

      When Division caseworkers arrived, they reported Pamela's erratic

behavior and noted concerns for her mental health. Pamela revealed she had

been diagnosed with bipolar disorder, suffered other mental impairments, and

had ceased taking medication. When Division caseworkers transported the

family back to their home, they observed it was unkempt and mandated a home

inspection before Teresa could be returned to Pamela and Robert.

      On behalf of the Division, Dr. Elizabeth Grossier conducted a

psychological evaluation of Pamela. Dr. Grossier noted Pamela's substantial

difficulty in maintaining focus and delivering clear and logical thoughts, as well

as manic symptoms and mental confusion. Dr. Grossier found Pamela required

mental health treatment and lacked the capacity to care for herself.          She


                                                                          A-4892-16T4
                                        3
concluded Pamela could not act as sole caretaker for Teresa without presenting

a significant risk of harm to the child.

      Pursuant to Dr. Grossier's recommendation, Dr. Alexander Iofin

performed a psychiatric evaluation of Pamela. Dr. Iofin concurred with Dr.

Grossier’s conclusion Pamela could not be Teresa's sole caretaker due to

psychiatric and neuropsychiatric problems.

      Relying on these evaluations, the Division implemented in-home health

aide assistance four times per week to address Pamela's mental health issues and

care for Teresa. Robert, who was certified as a home health aide, agreed to

provide Pamela fourteen hours of additional assistance each week.

      In January 2015, a health aide reported the family's home was without a

functioning gas line, and thus lacked heat or a means to cook food. Eventually,

because of disputes over habitability of the residence and payment of rent, the

family was evicted. Both parents spent several months living between homes

and at a YMCA. Ultimately, they came to live in the home of the father of one

of Pamela's other children.

      The Division began to receive reports Robert was experiencing health-

related issues and may not be capable of caring for Teresa independently. In

August 2015, the East Orange Police Department received multiple reports


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                                           4
Robert had appeared intoxicated, wandering the streets with Teresa. When

police stopped Robert, he was unable to recall his address or telephone number.

The officer determined Robert's symptoms were related to seizures, rather than

intoxication.

        Robert disclosed to the Division he suffered from epilepsy, seizures,

memory loss, and had difficulties with speech. He also conceded he and Teresa

were homeless and lacked a support system. Robert claimed he had not spoken

to Pamela in two days and was unsure of her whereabouts. When the Division

located Pamela, she claimed she had left Robert and Teresa to find a parking

spot for her car, but was unable to locate them when she returned, and could not

reach Robert. Pamela was unable to account for her whereabouts during the two

days in question. The Division removed Teresa, and placed her in a resource

home.

        Pamela was reevaluated by Dr. Grossier and Dr. Iofin, who both reported

her worsening condition due to her failure to participate in treatment services.

Neither doctor found Pamela to be a viable parenting option for Teresa.

        Robert failed to avail himself of the treatment services following Teresa's

removal. He had no contact with the Division for two months, and when he re-

emerged, claimed to have been hospitalized after hitting his head, but produced


                                                                           A-4892-16T4
                                         5
no medical records to support this assertion.          Eight months after Teresa's

removal Robert completed a psychological evaluation. However, he failed to

attend     multiple   neuropsychological       assessments,   and   numerous     other

evaluations arranged by the Division.

         As a result of failing to comply with services and their deteriorating

condition, the Division changed Teresa's permanency goal from reunification to

termination of parental rights followed by adoption, and filed a guardianship

complaint.

         Subsequent to the filing of the complaint, neither parent's compliance

improved. Pamela was discharged from a mental health treatment program for

failure to adhere to treatment recommendations. She then re-enrolled in the

program three days before the permanency hearing, attended regularly for two

months, and ceased attending altogether in February 2017. Robert also failed to

comply with the Division's recommended services. He only briefly enrolled in

a mental health treatment program and admitted using heroin. Both parents

claimed to attend other services independently, but never provided proof of

attendance to the Division or the court.

         During the guardianship trial, the Division presented the testimony of Dr.

Mark Singer, caseworker Peggy Wright, and the Division's adoption supervisor


                                                                               A-4892-16T4
                                           6
Robinson Paul. Pamela testified on her own behalf. The law guardian and

Robert did not present testimony.

      Dr. Singer testified neither parent possessed the parental capacity to care

for Teresa. He opined Pamela suffered from a substantial thought disturbance

or HIV/AIDS-related dementia, which made her prone to delusional thoughts.

He concluded Pamela's mental condition would deteriorate over time, especially

in less structured "ambiguous" settings encountered by child rearing parents.

Dr. Singer concluded Pamela would be unable to adapt to the evolving needs of

a child.

      Dr. Singer concluded Robert also struggled in ambiguous situations due

to his difficulty with comprehension and impaired memory. Dr. Singer found

Robert's inability, or unwillingness, to acknowledge Pamela's mental

deficiencies prevented him from effectively compensating for them.            He

concluded neither party was a viable option to parent Teresa.

      Dr. Singer also performed a bonding evaluation and concluded Teresa

would experience a negative reaction if her relationship with her parents was

terminated. He opined Teresa required permanency, namely, a stable figure

capable of providing the care and guidance a child requires navigating uncertain

life events.   He testified neither parent could provide the stability and


                                                                         A-4892-16T4
                                       7
responsiveness necessary to meet Teresa's need for permanency, because they

were incapable of parenting and would continue to decompensate. He concluded

Teresa's best interest would be served by select home adoption.

      In its efforts to seek permanent placement options with relatives, the

Division located and assessed Teresa's maternal aunt as a potential placement.

However, she was ruled out due to inadequate living accommodations. The

Division located Teresa's maternal uncle, however he withdrew from

consideration citing medical concerns related to his wife. The Division assessed

the father of another one of Pamela's other children who presented himself as a

placement option for Teresa, either through adoption or kinship legal

guardianship (KLG), but subsequently withdrew his application. K.G., Pamela's

adult daughter who resided in Alabama, expressed an interest in adopting

Teresa. However, her home ultimately failed the interstate licensing process.

      Notwithstanding, Paul testified Teresa was a candidate for adoption. He

stated the Division would place Teresa into the New Jersey Adoption Exchange,

the National Adoption exchange, and enroll her in Division-organized social

events to enable Teresa to interact with potential adoptive families.

      On June 29, 2017, Judge Wayne J. Forrest issued a forty-eight-page

written opinion terminating the parties' parental rights. The judge found the


                                                                        A-4892-16T4
                                        8
Division had proven all four prongs of the best interest of the child test under

N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.

      Specifically, the judge found Pamela and Robert's chronic homelessness

and long standing housing instability had endangered Teresa. The judge found

Pamela's severe and worsening untreated mental condition continued to

endanger Teresa. He found Robert's untreated medical conditions were the

cause of Teresa's removal.

      Under the second prong, the judge found the parties' failure to address

their mental health and medical needs was proof they were unable or unwilling

to remove the harm confronting Teresa. The judge concluded the parties' failure

to ameliorate their condition would inevitably compound the harm she had

already suffered.

      As to the third prong, the judge found the Division had satisfied its

obligation to offer services to each parent prior to seeking termination of their

parental rights. The judge also found there were no viable options to termination

of parental rights because KLG and other relative placements were considered,

but had failed.

      As to the fourth prong, the judge concluded Teresa's best interests would

be served by termination of parental rights followed by adoption, and


                                                                         A-4892-16T4
                                       9
termination would not do more harm than good. Specifically, the judge noted

the importance of permanency to Teresa's healthy development and concluded

the parties' inability to mitigate the circumstances, which led to the child's

removal, left no possibility of permanency with them. The judge acknowledged

severance of the parental relationship would cause some negative impact, but

concluded neither Pamela nor Robert could provide the care and stability

necessary to achieve permanency.      The judge found granting the Division

guardianship would allow it to seek a broad range of permanency options in

adoption otherwise unavailable to Teresa.

      The Division was granted guardianship of Teresa. This appeal followed.

                                       II.

      Our scope of review on appeal from an order terminating 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)). We will uphold

a trial judge's factfindings if they are "supported by adequate, substantial, and

credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527,

552 (2014) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104

(2008)). No deference is given to the court's "interpretation of the law" which

is reviewed de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012) (citing N.J.


                                                                         A-4892-16T4
                                      10
Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010); Balsamides v.

Protameen Chems., 160 N.J. 352, 372 (1999)).

       "We accord deference to factfindings of the family court because it has

the superior ability to gauge the credibility of the witnesses who testify before

it and because it possesses special expertise in matters related to the family."

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

Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Only when the trial court's

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

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

justice." E.P., 196 N.J. at 104 (quoting G.L., 191 N.J. at 605). We also accord

deference to the judge's credibility determinations "based upon his or her

opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs.

v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing Cesare, 154 N.J. at 411-

13).

       When terminating parental rights, the court focuses on the "best interests

of the child standard" and may grant a petition when the four prongs set forth in

N.J.S.A. 30:4C-15.1(a) are established by clear and convincing evidence. In re

Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).          "The four criteria

enumerated in the best interests standard are not discrete and separate; they


                                                                         A-4892-16T4
                                       11
relate to and overlap with one another to provide a comprehensive standard that

identifies a child's best interests." Id. at 348.

      As codified, N.J.S.A. 30:4C-15.1(a) requires the Division prove:

             (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.

      On appeal, Robert challenges the judge's findings on all four prongs and

urges us to conduct de novo review. Regarding prongs one and two, Robert

claims the judge's decision did not explain how his disabilities harmed Teresa

or affected his ability to parent. As to prong three, he argues the Division failed

to make reasonable efforts to assist him in managing his epilepsy or help either


                                                                           A-4892-16T4
                                         12
parent find housing. Robert asserts the judge's prong four finding was erroneous

because his ability to parent, and the absence of an adoptive placement,

demonstrated termination would do more harm than good.

      Additionally, Robert argues Dr. Singer's report does not support the

termination of parental rights and is a net opinion. He also asserts Dr. Singer

interpreted the psychological testing in a biased manner favoring the Division.

Robert asserts the questions the judge asked of the Division's expert at trial

demonstrate the judge had ceded the fact-finding function to the expert.

      Pamela challenges the judge's findings under prongs three and four. As

to prong three, she argues the Division failed to consider alternatives to

termination of parental rights, namely that K.G. was willing to adopt Teresa.

Pamela also challenges the findings under prong four, and argues termination

would do more harm than good because there was a pending interstate

assessment to place Teresa with K.G. Pamela argues the guardianship should

have been dismissed and the matter returned to the FN docket rather than

proceed to a guardianship trial.

      After reviewing these arguments in light of the record and applicable legal

principles, we are convinced they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). Judge Forrest's factual


                                                                           A-4892-16T4
                                      13
findings are supported by the substantial credible evidence and his legal

conclusions are unassailable in light of those findings. See N.J. Div. of Youth

& Family Servs. v. R.G., 217 N.J. 527, 552 (2014). We only add the following

relating to the parties' arguments under prong four.

      Prong four requires the Division to show "[t]ermination of parental rights

will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). Termination of

parental rights poses a risk to children due to the severing of the relationship

with their natural parents, but it is based "on the paramount need the children

have for permanent and defined parent-child relationships." K.H.O., 161 N.J. at

355 (quoting In re Guardianship of J.C., 129 N.J. 1, 26 (1992)).

      Thus, "the fourth prong of the best interests standard [does not] require a

showing that no harm will befall the child as a result of the severing of biological

ties." Ibid. Prong four "serves as a fail-safe against termination even where the

remaining standards have been met." G.L., 191 N.J. at 609. "[T]he question to

be addressed under [prong four] is whether, after considering and balancing the

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

of ties with [their] natural parents than from permanent disruption of [their]

relationship with [their] foster parents." I.S., 202 N.J. at 181 (quoting J.N.H.,

172 N.J. at 478).


                                                                            A-4892-16T4
                                        14
      Pamela and Robert argue the evidence in the record was insufficient to

support the judge's conclusion the termination of parental rights would not do

more harm than good because Teresa maintained a strong relationship with her

parents, the Division had not located a permanent adoptive home for her, and

the Division's expert testimony confirmed Teresa would be harmed by severance

of her parental relationships. Both parents rely upon E.P., 196 N.J. 88, 92-93

(2008), where the Supreme Court reversed a judgment terminating the parental

rights of a mother to her thirteen-year-old daughter.

      In E.P. the child was in her seventh foster home, and her prospects of

adoption were "slim," "bleak," and "elusive." Id. at 109. The child's mother

was the "one sustaining force in [her] life . . . ." Ibid. The child had an extreme

and violent reaction to the prospect of adoption, and attempted to take her own

life upon learning she would not be unified with her mother. Id. at 105.

      The Court found the termination of parental rights did "not appear to have

any real compensating benefit, particularly in light of the expert opinions

rendered at the guardianship hearings that the 'window of attachment to

somebody else is closing real fast.'" Id. at 109. The Court noted the child

maintained an intense emotional bond to her mother, and the relationship must

be weighed against the "slender prospect of adoption[.]" Id. at 110. The Court


                                                                           A-4892-16T4
                                       15
concluded it was "highly questionable" the child "would ever find a home with

a foster family." Ibid.

      The E.P. Court noted a "decision to terminate parental rights should not

simply extinguish an unsuccessful parent-child relationship without making

provision for a more promising relationship [in] the child's future." Id. at 108

(citing Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986)). It

found a termination under such circumstances may cause substantial harm to the

child. Id. at 109. The Court stated although the Division's goal must be to

achieve permanency, "the unlikely possibility of permanency in the future"

should not outweigh "a strong and supportive relationship with a natural parent."

Id. at 110-11.

      The facts here are different. Teresa has not exhibited any of the same

substantial behavioral concerns as the child in E.P. She has remained with the

same resource parent, without incident, for the entirety of the two years she has

been separated from Pamela and Robert.           The resource parent remains

committed to caring for Teresa until a permanent placement is located. Dr.

Singer testified termination of parental rights followed by select home adoption

was in the Teresa's best interest, and a delay in permanency would cause greater

harm to her than would severance of the parental relationship. Additionally, the


                                                                         A-4892-16T4
                                      16
Division presented unrebutted testimony it expected no difficulty in finding a

permanent adoptive placement for Teresa once she was freed for adoption.

      Pamela also relies on N.J. Div. of Youth & Fam. Servs. v. T.S., 417 N.J.

Super. 228 (App. Div. 2010). There, the trial court had terminated the parental

rights of a mother and father. Id. at 232. On appeal, we reversed because a

significant change in circumstances had occurred since the entry of the

guardianship judgment, namely, the mother had "continue[d] her sobriety, [was]

fully compliant with parole, remain[ed] employed and sustain[ed] adequate

housing." Ibid.

      T.S. is inapposite. The circumstances here have not changed for the

better, to warrant reversal of guardianship judgment. The facts support Judge

Forrest's conclusion "[Teresa] will receive the permanency and stability she

deserves upon termination of the parental rights . . . and being made legally free

for adoption."

      Affirmed.




                                                                          A-4892-16T4
                                       17
