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                   APPROVAL OF THE APPELLATE DIVISION
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     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-4767-15T3
                                               A-4768-15T3

DIVISION OF CHILD PROTECTION
AND PERMANENCY,

           Plaintiff-Respondent,

     v.

S.C. and A.A.,

          Defendants-Appellants.
______________________________________

IN THE MATTER OF THE GUARDIANSHIP OF
S.A., R.A., R.C., P.C. and D.C.,

          Minors.
______________________________________

           Submitted October 17, 2017 – Decided October 24, 2017

           Before Judges Fisher and Moynihan.

           On appeal from the Superior Court of New
           Jersey, Chancery Division, Family Part, Essex
           County, Docket No. FG-07-0255-15.

           Joseph E. Krakora, Public Defender, attorney
           for   appellant  S.C.   (Albert  M.  Afonso,
           Designated Counsel, on the brief).

           Joseph E. Krakora, Public Defender, attorney
           for appellant A.A. (Susan P. Gifis, Designated
           Counsel, on the brief).
            Christopher S. Porrino, Attorney General,
            attorney for respondent (Andrea M. Silkowitz,
            Assistant Attorney General, of counsel and on
            the brief; Jonathan Villa, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law
            Guardian, attorney for minors (Cory H. Cassar,
            Designated Counsel, on the brief).

PER CURIAM

       Defendants S.C. (Steven) and A.A. (Anna) are the parents of

five minor children: S.A. (Stanley), born in 2001; R.A. (Roberta),

born in 2002; R.C. (Rhonda), born in 2004; P.C. (Paul), born in

2007; and D.C. (Daniel), born in 2013.1 The Division of Child

Protection and Permanency commenced this action and, after a four-

day trial, secured the termination of Steven and Anna's parental

rights to all five.2

       In these consolidated appeals, Steven argues the judge erred

in finding the Division proved the second, third and fourth prongs

of the statutory termination test and particularly focuses on his

parental rights to Paul. Anna argues the evidence failed to support

the judge's findings on all four statutory prongs. In applying our




1
    All names used are fictitious.
2
  Defendants also have two adult children (born in 1991 and 1992),
who were residing in the home at the time of the circumstances in
question; their rights and interests are not the subject of this
action or these appeals.

                                     2                       A-4767-15T3
familiar deferential standard of review, we reject Steven and

Anna's arguments and affirm in all respects.

     Parents have a constitutionally protected right to the care,

custody and control of their children. Santosky v. Kramer, 455

U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606

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

"The rights to conceive and to raise one's children have been

deemed 'essential,' 'basic civil rights . . .,' and 'rights far

more precious . . . than property rights.'"       Stanley v. Illinois,

405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558

(1972) (citations omitted). "[T]he preservation and strengthening

of family life is a matter of public concern as being in the

interests of the general welfare."       N.J.S.A. 30:4C-1(a); see also

K.H.O., supra, 161 N.J. at 347.

     The   constitutional   right   to   the   parental   relationship,

however, 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 for

determining when a parent's rights must be terminated in a child's

                                    3                           A-4767-15T3
best interests. 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;

          (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.

See also A.W., supra, 103 N.J. at 604-11.

     By way of a thorough oral decision, Judge Stephen J. Bernstein

found the Division demonstrated, by clear and convincing evidence,

that all four prongs supported termination of both defendants'

parental rights to all five children. We briefly and separately

examine the judge's findings on each prong.

                                 I

     Steven doesn't contest the first prong, and Anna argues only

that the guardianship complaint failed to identify "specific"

harms or risks of harm to the children that arose from her alleged


                                 4                          A-4767-15T3
incapacity for adequate parenting. Specificity at that stage,

however, was not required.

     The    evidence   overwhelmingly       supports   a   finding   that    the

children    were    endangered     by   their   parents'     unfitness.      The

children's need for close and constant supervision due to their

severe developmental disabilities was not met.             They often arrived

at school dirty, disheveled, and sometimes with minor injuries.

Anna's incapacity as a parent was further demonstrated by the

home's chaotic condition. And Steven's testimony confirmed that

he did not believe he should help Anna in fulfilling their parental

obligations. The evidence also demonstrated Steven was emotionally

abusive    toward    Anna   and   the   children.   Caseworkers      witnessed

Steven's hostility and aggressiveness toward Anna, and they faced

the same aggression from Steven when visiting the home.

     Dr. Gerard Figurelli's psychological evaluation confirmed

Anna was unable to provide adequate parenting on her own, and that

cognitive    and    psychological   limitations     made    her   unlikely    to

benefit from parenting instruction or psychiatric treatment.3 Dr.


3
  To be more precise, Dr. Figurelli described Anna as "somewhat
labile and unstable in mood" and found her responses were
"disjointed and rambling." He also found Anna "somewhat
cognitively limited." Her nonverbal intelligence test result was
"within the low borderline to mildly disabled range of intellectual
functioning," her judgment was "concrete but adequate," and her
manner was "somewhat strange and peculiar." Dr. Figurelli


                                        5                              A-4767-15T3
John   Quintana's   psychological      evaluation     found      that    Steven's

rigidity and intolerance made him abusive and controlling, which

contributed to the dysfunctional and potentially harmful family

situation.

       Dr. Figurelli opined that the "family home environment" and

defendants'    "volatile   relationship"     with   each      other     posed    an

"imminent and immediate risk of harm/danger to the safety of the

children."      Those   circumstances,      which   reflected      defendants'

parental inadequacies, arose from the parental relationship rather

than   from   outside   forces   and   manifested     at   the    time    of    the

children's removal. At that time, Anna reported that Steven had

become very violent during the preceding weekend and threatened

to kill her.

       Steven and Anna's unfitness as parents, coupled with their

troublesome    parental    relationship,      posed    a      danger     to     the

children's safety, health, or development.

                                       II

       The Supreme Court has recognized that the second statutory

prong focuses not on whether the parents "are themselves unfit or



concluded that Anna could not "adequately and independently parent
her 7 children" in "a consistently adequate and stable manner over
time." She depended on Steven for "the responsibilities and chores
of daily adaptive living" and was unlikely to be able to
"consistently manage" them on her own.

                                       6                                  A-4767-15T3
whether they are the victims of social circumstances beyond their

control," but on "whether it is reasonably foreseeable that the

parents can cease to inflict harm upon the children entrusted to

their care." A.W., supra, 103 N.J. at 607. "No more and no less

is required of them than that they will not place their children

in substantial jeopardy to physical or mental health." Ibid.

       The Court cautioned that "the price of focusing on the plight

of the parents . . . is that the child is kept in waiting for what

the decision-makers view as the ideal or best placement." Id. at

601-02. What most concerned the A.W. Court was the lack of evidence

of "any realistic likelihood that the parents would ever be capable

of caring for the children." Id. at 614. Even when parents are not

blameworthy because they were "shortchanged by either nature or

society," this prong is satisfied when their behavior "indicates

a further likelihood of harm to the child in the future." Id. at

615-16.

       The trial judge's findings on the second prong were based

firmly on evidence he found clear and convincing and met the

requirements of the legal principles discussed above. Steven may

have   completed   his   batterer's       intervention   program,   but    he

admitted what he learned was insufficient. This was demonstrated

at trial; Steven explained that the techniques he was taught did

not prevent an earlier outburst in court when provoked by what he

                                      7                             A-4767-15T3
viewed as "so many strong lies," especially about the children's

condition.     His testimony that the children had nothing more than

a "disease" that could be "cured" with rubbing alcohol or "fixed"

with     "education"       further     demonstrated        his    inability      or

unwillingness        to   understand    the    nature      of    the   children's

disabilities and their special needs.

       Parenting training also provided little benefit. Although

Steven completed the program, the provider observed that he still

needed counseling to accept responsibility for his contribution

to the situation. Steven stated his intention to pursue counseling,

but    there   was   no   indication   he     did.   His   testimony    showed    a

continued unwillingness to provide the care, of which Anna was

incapable, by insisting Anna would continue to provide all the

caregiving. He stated she could do so because a person can "force

[one's] self to do it."

       Anna likewise showed little interest in or ability to benefit

from services. She exhibited only interest in domestic violence

counseling because she believed it would lead to her relocation

to a separate residence. She did not start couples counseling, and

she rejected individual counseling during the intake process seven

months before trial. The provider of the group-parenting training,

which Anna completed, called it "unproductive" because Anna's

"cognitive issues" kept her from staying focused. The provider of

                                        8                                 A-4767-15T3
the individual parenting training, which Anna completed a month

before trial, similarly noted Anna was "not capable of utilizing

her new skills with her children."

         Anna's remaining argument – that the children improved upon

receiving services not previously provided following their removal

–   is    also   unavailing.     This   improvement   only   highlighted   the

importance of the services from which Anna was unwilling or unable

to benefit and demonstrated that the delay in better caregiving

would have caused further harm if the children remained in her

custody.

         In short, we find no merit in both defendants' arguments

about the second prong. The judge observed that Steven and Anna

had unduly focused on their resentment and on expressing it

constantly,      even   during    visitations,   which   should   have     been

devoted to the children and not their grievances. He found that

Steven learned nothing during the pendency of this case; despite

parenting classes, Steven continued to believe the children and

Anna were "fine" and there were no problems other than those caused

by the Division's interference. The judge concluded that both

parents failed to fully comply with services and were continuing

to harm the children. These findings are supported by evidence the

judge was entitled to characterize as clear and convincing.



                                         9                            A-4767-15T3
                                     III

       Steven claims the judge erred in finding the Division made

reasonable efforts to achieve reunification by providing him and

the children with appropriate services. He argues the Division

should have offered a program tailored for parents of children

with   autism   or   similar   developmental     disabilities,    with     an

educational component. Based on the demonstrated value of the

therapeutic visitation, Steven argues the Division should have

offered it much earlier.

       Anna claims the judge erred by finding the services offered

to promote reunification were reasonable despite the failure to

adjust those services to her disabilities and the requirements of

the Americans With Disabilities Act, 42 U.S.C.A. §§ 12101-12213.

She argues the reasonableness of the services must be measured

against   the   needs   of   the   particular   family   and   parent,   and

therefore the services offered were inadequate because they were

generic rather than molded to someone with her particular cognitive

and psychological impairments.

       We find insufficient merit in both defendants' arguments on

this third prong to warrant further discussion in a written

opinion. R. 2:11-3(e)(1)(E). We add only a few brief comments.

       In finding by clear and convincing evidence that the Division

had made "more than reasonable efforts" to provide services that

                                     10                             A-4767-15T3
might lead to reunification, the judge recognized that the Division

offered "numerous services" and "struggled" with both Steven and

Anna   to   secure   their   compliance.   The   judge    recognized   that

defendants complied with some services but found "there[] [are]

so many services . . . still necessary."

       The judge also credited those expert opinions that asserted

Anna was "really not going to benefit from these services," and

the "only possibility" was for Steven to get "his act together"

and "take the lead in caring for these children"; the judge found

nothing to suggest Steven would do so, nor that he would develop

an understanding that the children's needs and Anna's limitations

required him to do so.       The judge further observed that services

had not generated "any benefit . . . in the last two years."

       The judge also viewed the therapeutic-visitation argument as

"a complete and utter red herring" because it served only the

parents. That service, he determined, "wasn't going to make them

better parents" when parenting classes and the other services they

were willing to accept had failed to do so. Instead, it was just

a way to maintain "some limited visitation" by keeping defendants

"under control . . . without causing a toxic situation."

       Finally, the Division does not have to make more than a

reasonable   effort   "under   the   circumstances   to    accommodate    [a

parent]'s disabilities," and the Division's proofs on the third

                                     11                            A-4767-15T3
prong do not fail simply because the Division's reasonable efforts

"did not bear fruit." N.J. Div. of Youth & Family Servs. v. A.G.,

344 N.J. Super. 418, 442 (App. Div. 2001), certif. denied, 171

N.J. 44 (2002). "The diligence of [the Division's] efforts on

behalf of a parent is not measured by their success" but "against

the standard of adequacy in light of all the circumstances of a

given case." In re Guardianship of D.M.H., 161 N.J. 365, 393

(1999).

                                IV

     Steven claims the judge erred on the fourth prong by finding

termination would not do more harm than good, especially for Paul.

Steven argues there was no prospect of adoption or other permanent

placement for Paul; that, in his view, made the termination of his

parental rights to Paul premature at best.

     Anna also claims the judge erred by finding the termination

of her parental rights would not do more harm than good. She argues

that no expert described the bond between herself and either

Roberta or Rhonda as harmful or worthy of termination.    She adds

that she was unfairly denied the opportunity to assess the strength

of Stanley's bond to her and "his ability to function in her home

with the new skills that he developed," due to services that had

been denied prior to removal. As for Paul, she claims there was

no evidence of a bond to anyone outside the family and no expert

                               12                           A-4767-15T3
opinion to support termination before the identification of an

adoptive parent. She argues that Daniel's bond with his foster

parents is greater than his bond with her only because the Division

failed to provide adequate visitation. And she lastly argues that

the judge failed to consider the impact on the children, who had

mutual attachments, of losing all connection with each other,

except for Roberta and Rhonda.

     Other than those comments that follow, we find insufficient

merit in these arguments to warrant further discussion in a written

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

     The fourth prong of the statutory test, N.J.S.A. 30:4C-

15.1(a)(4), "serves as a fail-safe against termination even where

the remaining standards have been met." N.J. Div. of Youth & Family

Servs. v. G.L., 191 N.J. 596, 609 (2007). The question is "whether

a child's interest will best be served by completely terminating

the child's relationship with that parent." N.J. Div. of Youth &

Family Servs. v. E.P., 196 N.J. 88, 108 (2008).

     A child "deeply needs association with a nurturing adult" and

a sense of "permanence in itself is an important part of that

nurture." A.W., supra, 103 N.J. at 610. "When a parent has exposed

a child to continuing harm through abuse or neglect and has been

unable to remediate the danger to the child, and when the child

has bonded with foster parents who have provided a nurturing and

                                 13                         A-4767-15T3
safe home," the termination of parental rights "likely will not

do more harm than good." E.P., supra, 196 N.J. at 108. New Jersey

accordingly has a "strong public policy in favor of permanency.

In all our guardianship and adoption cases, the child's need for

permanency and stability emerges as a central factor." K.H.O.,

supra, 161 N.J. at 357.

      The ultimate determination to be made under the fourth prong

"is   whether,    after         considering     and    balancing   the       two

relationships, the child will suffer a greater harm from the

termination of ties with [the] natural parents than from the

permanent   disruption     of    [the]   relationship    with   [the]    foster

parents." Id. at 355. Weighing the possible harm from termination

against the possible harm from a foster placement "is painfully

difficult, but it is a decision that necessarily requires expert

inquiry     specifically    directed       to    the    strength    of      each

relationship." J.C., supra, 129 N.J. at 25.

      Based on the evidence presented, the judge found termination

would not do more harm than good because it provided "the only

possibility that these children will reach their full potential

and reach permanency." This case, he observed, "really just cries

out for these children to finally be in [a] safe, stable, permanent

environment where they can do better and thrive," and this goal

could not be achieved by a return of the children to their parents.

                                      14                                A-4767-15T3
The judge noted that the success of an adoptive home cannot be

guaranteed, but even "if one of these adoptive homes should fail,"

the improvement that each child exhibited after removal revealed

they would be "capable of thriving in another home" if need be.

                                V

     Had circumstances remained unchanged, we would not proceed

further. The record on appeal, however, contains information that

suggests a change in circumstances regarding the status of both

Stanley and Paul that potentially may have some bearing on the

trial judge's determinations.

     A post-termination hearing in January 2017 revealed that

Stanley's foster parents had "changed their mind" about adopting

him, and that he was "now in a special school" due to his autism.

The Division also advised that Paul was placed in the same resource

home as David, and the resource parent was willing to adopt both.

     Consequently, although we reject all the arguments presented

by defendants and affirm the judgment under review, we do so

without prejudice to defendants' rights to seek relief from the

trial court judgment, pursuant to Rule 4:50, based upon the post-

termination circumstances outlined immediately above.

     Affirmed.




                                15                          A-4767-15T3
