                                       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                                NOT FOR PUBLICATION WITHOUT THE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-2620-17T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

T.D.W.,

          Defendant-Appellant,

and

J.W. and A.W.,

     Defendants.
______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF M.Z.M.W.
AND Z.L.H.,

     Minors.
______________________________

                    Submitted January 16, 2019 – Decided February 28, 2019

                    Before Judges Accurso and Vernoia.
            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Mercer County,
            Docket No. FG-11-0047-17.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Britt J. Salmon-Dhawan, Designated
            Counsel, on the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jason W. Rockwell, Assistant Attorney
            General, of counsel; Salima E. Burke, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minors (Toya Davis, Designated Counsel,
            on the brief).

PER CURIAM

      Defendant T.D.W. (Tara),1 appeals from a January 24, 2018 Family Part

Judgment of Guardianship terminating her parental rights to her son, M.Z.M.W.

(Matt), who was born in 2007, and daughter, Z.L.H. (Zelda), born in 2013.2

Based on our review of the evidence in light of the applicable law, we affirm the

order terminating Tara's parental rights to Zelda and continuing Matt in the care



1
  We employ initials and pseudonyms for the parties and children for clarity and
to protect the children's privacy. Defendant has a third child, A.W. (Ariel), who
was born in 2017 and is in the custody of the New Jersey Division of Child
Protection and Permanency. Ariel was not the subject of this proceeding.
2
  The January 24, 2018 order terminated the parental rights of Matt's father,
J.W., and Zelda's father, A.W. They have not appealed.
                                                                         A-2620-17T2
                                       2
and custody of the New Jersey Division of Child Protection and Permanency,

but reverse the termination of Tara's parental rights to Matt.

                                            I.

      The New Jersey Division of Child Protection and Permanency first

became involved with Tara in August 2012 when it responded to an abuse and

neglect allegation after Tara tested positive for marijuana and was terminated

from a home shelter program where she lived with five-year-old Matt. During

the following two years, the Division received an additional referral following

Tara and Matt's eviction from another shelter, and provided services, including

substance abuse evaluations and treatment to address Tara's use of marijuana.

      In January 2013, Tara advised the Division she was pregnant.           The

Division referred Tara to a counseling service, but she declined. Tara began

substance treatment in February 2013, initially tested positive on five occasions

and then tested negative and completed treatment in May. By that time, Tara

and Matt had stable housing with her then paramour, A.H. The following month,

Zelda was born.

      Eight months later, in April 2014, a Division caseworker contacted Tara

after learning she failed to take Zelda for well-child visits with a doctor. Tara

subsequently failed to bring Zelda to two doctor's appointments the Division


                                                                         A-2620-17T2
                                        3
scheduled. The caseworker continued to attempt to contact Tara but was unable

to do so because she and the children had been evicted from their home.

Division representatives went to Matt's school and were informed he had been

absent for a number of days.

      Tara subsequently contacted the Division and provided her current

address. Tara brought Zelda for a well-child visit the Division arranged, and the

Division closed its case on June 2, 2014.

      Less than a week later, the Division received referral from Matt's school

advising that after he returned following his absence, he had a black eye and

said his mother hit him. He provided unclear and conflicting information to the

Division caseworker and a police officer concerning his injuries, later saying his

black eye was not the result of being hit by his mother. He also was unable to

explain what caused a missing front tooth.

      The Division's efforts to discuss Matt's injuries with Tara were at first

unsuccessful because she did not respond to the Division's phone calls and no

one answered the door at Tara's home. After two days, Tara responded and was

informed the Division wanted her and the children to appear at the Child

Advocacy Center. A Division caseworker went to Tara's home to transport the




                                                                          A-2620-17T2
                                        4
family, but she prevented the caseworker from completing a safety assessment

of the home.

      During an interview at the Center, Matt denied ever having a black eye

but said one of his mothers, either Tara or A.H., told him to lie and say he hurt

his eye by falling. He reported he was told he would be arrested unless he lied

about the incident. Then seven-year-old Matt repeatedly asked the officers if he

was going to be arrested.

      Tara refused permission to allow a doctor to examine Matt. The Division

executed an emergency removal of Matt and Zelda from Tara's care. After a

brief stay with a family friend, the children were placed together in a non-

relative resource home.

      On June 13, 2014, the Division filed a verified complaint and order to

show cause for care and custody of the children. The court entered an order

finding removal of the children was required due to the use of excessive corporal

punishment, awarding the Division custody and appointing a Law Guardian for

the children.

      During a subsequent interview with Tara, she told the Division Matt was

injured when he fell in the bath tub, but that she was not home when it occurred.




                                                                         A-2620-17T2
                                       5
A.H. said she was home when Matt fell in the tub and injured his eye but was in

another room at the time.3

      Matt was examined by a doctor and said A.H. hit him in the eye. He

explained that A.H. was angry at him for jumping up and down while Tara and

A.H. fought. He also said he lost a tooth when he fell after being pushed from

behind by either Tara or A.H. The doctor recommended that Tara and A.H.

receive psychological evaluations and parenting training, and attend anger

management counseling.

      The court directed that Tara's and A.H.'s parenting time be supervised.

Matt reported to a Division caseworker that he feared A.H. and thought she

would hit him again if he returned home. When informed of Matt's fears, Tara

said he was lying to get attention.




3
   In Point II of her reply brief, Tara argues the trial court improperly relied on
Matt's reports concerning A.H. Tara claims Matt's statements constitute
inadmissible hearsay and are otherwise unreliable because his "special needs
limit his ability to retell accurately his experiences." The Division moved to
strike Point II of the reply brief, claiming it asserts an argument that was not
made to the trial court or in Tara's initial brief, and contradicts Tara's
consistently stated position and testimony at trial that A.H. caused Matt 's
injuries. In the alternative, the Division requested permission to file a sur-reply
brief. The determination of whether to consider the arguments in Point II of the
reply brief and the Division's sur-reply brief was left to the merit's panel. We
have considered the arguments in both briefs in our determination of this appeal.
                                                                           A-2620-17T2
                                        6
      On July 25, 2014, the court ordered the continued custody of the children

with the Division and directed that Tara and A.H. undergo psychological

evaluations,   parenting   skills   training   and   comply    with    Division

recommendations. The court ordered supervised parenting time for Tara and

denied parenting time with Matt to A.H.

      Tara and A.H. underwent psychological evaluations. Tara's diagnoses

included post-traumatic stress disorder, depressive disorder and parent-child

relationship issues. It was recommended that Tara receive trauma-focused

cognitive behavioral therapy and parenting skills training and find employment

to provide income to support her children. It was also recommended that A.H.

attend parenting skills classes and attend counseling. Continued supervised

parenting time for Tara and A.H. was recommended with a plan for gradual

transition to unsupervised parenting time. The Division offered Tara services

to address her mental health and housing issues.

      At a September 22, 2014 case management and fact-finding conference,

Tara stipulated that she failed to supervise Matt when he was struck and injured

by A.H. The court ordered that Tara and A.H. comply with Division services ,

undergo psychological evaluations and attend parenting classes.       A.H. was




                                                                        A-2620-17T2
                                       7
ordered to attend anger management classes. The court directed parenting time

for Tara consistent with the recommendations of her therapist.

      During the ensuing months, the court entered orders continuing the

Division's care and custody of the children and directing that Tara and A.H.

comply with Division services. It was agreed Tara would have unsupervised

parenting time, but the court required that A.H. be supervised while with the

children. Following a March 31, 2015 compliance review hearing, the court

allowed overnight weekend parenting time for Tara.

      On May 26, 2015, Matt's therapist reported to the Division that Matt was

not fed during an overnight visit with Tara. The resource parent also reported

the children were very hungry when they returned home. Matt told his therapist

that he and Zelda were left alone with A.H. during the visit while Tara went to

work. A Division investigator found little food in the home just prior to a

planned overnight parenting visit and, during a subsequent visit to the home,

Tara would not permit the investigator to look in the refrigerator. The Division

found the allegation Tara neglected the children by leaving them alone with A.H.

to be established, but determined the alleged failure to feed Matt to be not

established.




                                                                        A-2620-17T2
                                       8
      In June 2015, Matt's therapist reported that Matt had "regressed since

starting weekend visits" with Tara and A.H.       A month later, the therapist

informed the Division that she did not recommend reunification of the children

with Tara until either A.H. was no longer in the home or A.H. actively

participated in therapy. The therapist reported that Matt said he was afraid A.H.

would hit him and that he overate before and after his visits with Tara because

he did not get enough food when he was with her.

      During a June 26, 2015 compliance review hearing, the court again

ordered a psychological evaluation for Tara and that she comply with services.

Tara advised that A.H. no longer resided in the home, but requested that she be

permitted to supervise A.H.'s contact with the children. The court ordered that

A.H. not be present for Tara's parenting time.      A.H. refused any Division

services and requested to be dismissed from the proceedings. The court granted

the request and terminated A.H. from the litigation. The court also entered a

permanency order stating the Division's reunification plan was acceptable.

      Tara's counselor reported that during the summer of 2015, Tara made

"little progress in therapy" and had not addressed the traumatic experiences in

her life. The counselor found Tara was angry about attending counseling and

did not accept responsibility for her role in the children's placement in foster


                                                                         A-2620-17T2
                                       9
care. Tara also refused her counselor's request to speak with Matt's therapist.

During July and August, Tara did not attend two of three scheduled therapeutic

visiting sessions with Matt.

      In early August 2015, Tara refused to let the Division caseworker into her

home. On August 17, 2015, Matt reported he was not fed during an overnight

visit with Tara. A caseworker went to Tara's home, but she would not allow him

to enter.

      In September 2015, it was discovered that Tara was living with a new

paramour, L.S., who refused to provide the Division with any information

permitting an investigation of his background. Tara failed to attend a court

ordered meeting with medical professionals to discuss medication options for

Matt's numerous special needs.         In late September, Matt's counselor

recommended that the child's weekend visitation with Tara end until she actively

participated in therapy.

      On September 29, 2015, the court ordered that Tara attend psychological

counseling and parenting classes and comply with Division services. The court

suspended Tara's overnight parenting time and permitted only supervised

parenting time until she complied with services, and required Division access to

her home and its assessment of all others residing in the home.


                                                                        A-2620-17T2
                                      10
       In early October 2015, the children's resource parent suffered from health

issues and could no longer care for them. The Division was unable to find a

placement for the children together, and Matt and Zelda were placed in separate

resource homes.4

       The Division arranged for supervised parenting time for Tara and the

children, and continued family therapy sessions for Tara and Matt.          Tara,

however, did not attend all of the scheduled family therapy sessions.         On

October 5, 2015, Tara was discharged from Catholic Charities for failure to

attend counseling. In October, she was also fired from her job and postponed

the Division's home assessment for one week.          In November 2015, Tara

cancelled a Division home visit.

       On December 16, 2015, Tara failed to attend a compliance review hearing.

The court ordered the Division continued care and custody of Matt and Zelda

because Tara was unable to care for them. The court ordered that Tara comply

with services, attend treatment and allow the Division access to her home. The

court continued the cessation of overnight visits until Tara engaged in

counseling.




4
    Since May 2017, Ariel has resided in the same resource home as Zelda.
                                                                         A-2620-17T2
                                       11
      In December 2015, Tara began counseling with Dr. Jeffrey B. Allen. She

also participated in family counseling with Dr. Allen, Matt and Zelda. Four

months later, the court entered an order allowing Tara unsupervised visits with

the children but denying weekend visits.

      In February 2016, Tara provided the Division with five relatives in North

Carolina to assess for placement of the children. None of the relatives responded

to the Division or expressed interest in providing placement for the children.

During the course of this matter, the Division also contacted a friend identified

by Tara and Tara's aunt, C.B., who for a period supervised Tara's parenting time

with the children, to determine their availabilities as placement options. Both

declined. The Division also contacted Matt's godmother, M.M., as a placement

for Matt, but M.M. had pending criminal charges against her.

      In February, Matt underwent a developmental assessment at the Children's

Specialized Hospital. It was determined Matt suffered from attention-deficit-

hyperactivity-disorder, with developmental articulation and language disorder.

It was recommended that he engage in speech therapy and have a child-study

team evaluation.

      On March 4, 2016, Tara attended a Division family team meeting where

she was encouraged to attend counseling and take the other steps required for


                                                                         A-2620-17T2
                                      12
reunification with her children. Tara committed to complying with Division

services to ensure reunification occurred. Later in the month, the court ordered

a psychological evaluation of Tara and that she continue to attend individual and

family counseling and parenting classes.

        A month later, the court issued another permanency order accepting the

Division's plan for reunification. The court observed that Tara was then engaged

in services, had stable housing and was employed.

        In June 2016, however, Matt's resource parents reported to the Division

that they noticed a change in his behavior since Tara's unsupervised visitation

had been reinstated. According to the resource parents, nine-year-old Matt often

lied and wet the bed at night and himself during the day.

        During an August 2016 visit to Tara's home, a Division caseworker found

almost no food. A month later, Tara was evicted. She was without stable

housing until January 2017, when she began to cohabitate with a new paramour,

M.C. Tara continued to have unsupervised parenting time through the fall of

2016.

        On October 20, 2016, Tara informed a Division caseworker she was living

with a neighbor because she was evicted from her prior residence due to non -

payment of rent. During a November 22, 2016 visit to Tara's aunt's home where


                                                                         A-2620-17T2
                                      13
Tara was spending time the children, a Division caseworker heard loud crying

from inside of the home. The children later reported the crying occurred because

Tara hit three-year-old Zelda on the leg.

      In January 2017, the court allowed for a transition to unsupervised

overnight parenting time contingent on the therapeutic recommendations of Dr.

Allen and the consent of the Law Guardian. Two weeks later, Tara gave birth

to Ariel. The Division, however, received a referral that Ariel tested positive

for marijuana. Tara reported to the Division she intended to raise Ariel with

M.C., with whom she was residing in housing M.C. obtained through a program

for individuals with mental illness.    The Division determined M.C. had an

extensive criminal history, including convictions for aggravated assault,

criminal sexual contact and possession of controlled dangerous substances.

      On February 8, 2017, the Division filed an amended verified complaint

seeking custody of Ariel. The court entered an order granting the Division

custody of Ariel, who was placed in the same resource home as Zelda. On

February 22, 2017, Tara attended an intake appointment for a substance abuse

program and, five days later, she tested positive for marijuana.

      At a March 9, 2017 family team meeting, the Division changed its plan

from reunification to termination of parental rights. In a March 28, 2017 order,


                                                                        A-2620-17T2
                                       14
the court directed that Tara and M.C. undergo substance abuse evaluations. The

court also entered a permanency order accepting the Division's plan for

termination of parental rights followed by adoption. The court observed that

Matt and Zelda had been in resource home placements for three years, that Tara

had failed to remediate the issues that required the placements and she continued

to test positive for controlled dangerous substances.

      Dr. Allen reported that Tara had "become more passive about . . . her

current situation" and never advised him she used marijuana during her

pregnancy with Ariel. He noted Tara began missing appointments with him in

April and he closed his file on her case two months later due to her non-

attendance.

      In April and May 2017, Dr. Jonathan H. Mack conducted a psychological

examination of Tara and bonding evaluations of Zelda and Tara, and Zelda and

her foster mother.    Dr. Mack diagnosed Tara with "Posttraumatic Stress

Disorder, Chronic"; "Major Depressive Disorder, Recurrent, Severe"; "Cannabis

Use Disorder, Moderate"; "Victim of Child Sexual Abuse, Subsequent

Encounter"; and "Borderline Personality features." He opined that although

Tara had tried to work toward reunification, based on her history, mental health




                                                                         A-2620-17T2
                                      15
issues and the results of his bonding evaluations, it was in Zelda's best interests

to terminate Tara's parental rights and allow the child to be adopted.

      In the spring of 2017, the supervisor for Tara's visits with the children was

no longer available, and the Division arranged for therapeutic supervised

parenting time. From May through July, Tara attended five visits but failed to

confirm three others, which were then cancelled. Reinstatement of unsupervised

parenting time was never recommended.

      The guardianship complaint was filed on June 19, 2017. At a compliance

review hearing the following day, the court ordered Tara to comply with random

drug screens because she had not completed the ordered substance abuse

assessment. The assessment was completed in late July, and Tara was referred

for outpatient treatment.

      Meanwhile, although M.C. informed the Division in February 2017 that

he would submit to random drug screens and a substance abuse evaluation, he

had not done so by April. The substance abuse treatment facility closed M.C.'s

case in May 2017 after he missed three scheduled evaluations.

      Dr. Mack's office conducted psychological bonding evaluations between

Matt and his foster parents in September 2017. Dr. Mack opined that Matt had

symptoms associated with children who experienced repeated trauma, including


                                                                           A-2620-17T2
                                       16
wetting the bed, frightening dreams, lying, excessive worrying and fear. Dr.

Mack found Matt's symptoms were founded on trauma related to Tara. He

concluded that Matt will thrive with his foster parents, and supported the

termination of Tara's parental rights.    However, he also noted that the foster

parents were unsure if they were interested in adopting Matt and they had

indicated only that they were considering pursuing adoption.

      The guardianship trial took place over four days. The Division presented

the testimony of Division caseworkers India Duncan and Gino Hutchinson , as

well as Dr. Mack, who testified as an expert in clinical psychology and neuro-

psychology. Tara testified on her own behalf. The Law Guardian supported the

Division's request for termination of Tara's parental rights, arguing the Division

satisfied its burden of establishing termination of parental rights was in the

children's best interests.

      Following the trial, the court rendered an oral opinion detailing the

testimony of the witnesses and evidence presented.         The judge found the

Division's witnesses to be credible, and concluded Tara's testimony

"contradict[ed]" the credible testimony of the Division's witnesses and was

"self-serving" and "unsubstantiated" and therefore given "little weight."




                                                                            A-2620-17T2
                                         17
      The court concluded the Division presented clear and convincing evidence

establishing each of the prongs of the statutory best-interests standard, N.J.S.A.

30:4C-15.1, and concluded Tara's parental rights to Matt and Zelda should be

terminated. More specifically, the court found the children's health, safety and

development have been or will continue to be endangered by a parental

relationship with Tara because she allowed the children to be exposed to A.H.

before and after the court ordered that A.H. should only have supervised contact

with the children, and she planned to continue to expose the children to harm by

living with M.C., who has a significant criminal record. The court further found

that Tara has unremediated mental health issues, otherwise failed for three-and-

a-half years to take the steps necessary to provide a safe home for the children

and sabotaged her own efforts each time she otherwise made progress toward

unsupervised parenting time and possible reunification. The court noted Dr.

Mack's testimony explaining the harms the children have suffered due to their

relationship with Tara and the delays in permanency resulting from Tara's

refusal and inability to provide the children with a safe and stable home.

      The court also found the Division established Tara was either unable or

unwilling to provide the children with a safe and stable home, noting Tara lacks

any plan to provide housing for the children or otherwise provide for their care,


                                                                          A-2620-17T2
                                       18
and lacks empathy for the children, choosing paramours that pose risks to the

children's safety and well-being over her children's welfare. The judge further

explained that Tara's inability and unwillingness to eliminate the harm to the

children is evidenced by her lengthy and consistent failure to successfully

engage in Division services and her ongoing use of marijuana during and after

her pregnancy with Ariel. The judge also found that further delay in providing

permanency to the children will exacerbate the harm the children will suffer

from separation from their resource parents.

      The court next detailed the Division's extensive and continuous provision

of services provided to Tara during the three-and-a-half years following the

children's removal from Tara's custody. The court explained that from June

2014 through April 2017, the Division's goal was reunification and that the

evidence established a pattern that, whenever progress was made, Tara took

steps that were anathema to reunification. The court found that despite the

numerous services provided, Tara was unable to provide a stable home for

herself or her children and incapable of addressing Matt's many special needs.

      Last, the judge determined the Division established that termination of

parental rights will not do more harm than good. The judge relied on Dr. Mack's

testimony, which she found credible, that children require permanency to thrive


                                                                        A-2620-17T2
                                     19
and develop and that Tara has denied the children the permanency they have

found with their resource parents. The judge cited Dr. Mack's testimony that

the children are thriving in their resource homes and have progressed mentally

and psychologically in the care of the resource parents. The court accepted Dr.

Mack's testimony that termination of Tara's parental rights will provide the

children with permanency through adoption by their resource parents and

support their continued care in safe and healthy environments.

      The court entered the January 24, 2018 Judgment of Guardianship

terminating Tara's parental rights to Matt and Zelda. This appeal followed.

      Tara presents the following arguments for our consideration:

            THE JUDGMENT OF GUARDIANSHIP SHOULD
            BE REVERSED BECAUSE THE TRIAL COURT
            ERRED IN FINDING THAT ALL FOUR PRONGS OF
            THE N.J.S.A. 30:4C-15.1(a) BEST INTERESTS TEST
            FOR THE TERMINATION OF T.D.W.'S PARENTAL
            RIGHTS HAD BEEN MET BY CLEAR AND
            CONVINCING EVIDENCE[.]

            I. THE TRIAL COURT ERRED IN FINDING THAT
            DCPP SATISFIED THE FIRST PRONG OF THE
            BEST INTERESTS TEST BECAUSE DCPP DID NOT
            PROVE      THAT     T.D.W.'S   PARENTAL
            RELATIONSHIP HARMED OR PUT HER
            CHILDREN AT A CONTINUING RISK OF HARM[.]

            II. THE COURT'S FINDING THAT T.D.W. WAS
            UNABLE TO OR UNWILLING TO ELIMINATE


                                                                       A-2620-17T2
                                     20
            THE HARM FACING                   HER    CHILD      WAS
            ERRONEOUS[.]

            III. T.D.W.'S PARENTAL RIGHTS SHOULD BE
            REVERSED BECAUSE TERMINATION WILL DO
            MORE HARM THAN GOOD[.]

            IV. TERMINATION OF PARENTAL RIGHTS
            SHOULD NOT BE AFFIRMED WHERE THE
            CHILDREN'S LAW GUARDIAN ABANDONED
            HER APPOINTED ROLE, IGNORING THE LEGAL
            PROTECTIONS    DESIGNED     FOR    THE
            CHILDREN[.]

                                        II.

      Our review of a trial court order terminating parental rights is limited.

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

Family Part'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 Child Prot. & Permanency v. K.T.D., 439 N.J. Super.

363, 368 (App. Div. 2015) (citing N.J. Div. of Youth & Family Servs. v. F.M.,

211 N.J. 420, 448 (2012)). "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." F.M., 211 N.J. at 448. This enhanced deference is particularly

appropriate where the court's findings are founded upon the credibility of the


                                                                           A-2620-17T2
                                       21
witnesses' testimony. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J.

Super. 148, 172 (App. Div. 2005) (citing Rova Farms Resort, Inc. v. Inv'rs Ins.

Co. of Am., 65 N.J. 474, 484 (1974)).

      "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide

of the mark' should an appellate court intervene and make its own findings to

ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs.

v. E.P., 196 N.J. 88, 104 (2008) (quoting G.L., 191 N.J. at 605). No deference

is given to the trial court's interpretation of the law, which we review de novo.

D.W. v. R.W., 212 N.J. 232, 245-46 (2012).

      A parent has a constitutionally protected right "to enjoy a relationship with

his or her child." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). That

right, however, "is not absolute" and is limited "by the State's parens patriae

responsibility to protect children whose vulnerable lives or psychological well-

being may have been harmed or may be seriously endangered by a neglectful or

abusive parent." F.M., 211 N.J. at 447. A parent's interest must, at times, 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).

      When terminating parental rights, the court must consider the "best

interests of the child." K.H.O., 161 N.J. at 347. The Division's petition to


                                                                           A-2620-17T2
                                        22
terminate parental rights may only be granted if the following four prongs

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

evidence:

            (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.

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

      "The four criteria enumerated in the best interests standard are not discrete

and separate; they relate to and overlap with one another to provide a

comprehensive standard that identifies a child's best interests." K.H.O., 161 N.J.

at 348. "[T]he cornerstone of the inquiry [under N.J.S.A. 30:4C-15.1(a)] is not


                                                                           A-2620-17T2
                                        23
whether the biological parents are fit but whether they can cease causing their

child harm." In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

      Tara does not dispute that the Division presented clear and convincing

evidence establishing the third prong of the statutory standard. She concedes

the Division made reasonable efforts to provide the services necessary to assist

her in correcting the circumstances that led to the children's placement. See

N.J.S.A. 30:4C-15.1(a)(3); see also In re Guardianship of D.M.H., 161 N.J. 365,

393 (1999) (explaining the Division's efforts to provide services are "not

measured by their success . . . . These efforts must be assessed against the

standard of adequacy in light of all the circumstances of a given case."). Instead,

she argues there is insufficient evidence supporting the court's findings of the

first, second and fourth prongs of the best-interests standard.

      When considering the first prong, the court's focus is not "on a single or

isolated harm or past harm," but rather "on the effect of harms arising from the

parent-child relationship over time on the child's health and development."

K.H.O., 161 N.J. at 348. Here, the court's determination that the children's

health, safety and development have been or will be endangered by the parental

relationship is supported by the evidence.       After three-and-a-half years of

services, Tara continues to be unable to provide the children with permanency


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                                       24
in a safe and stable home due to her unremediated mental health and substance

abuse issues, poor decision-making, lack of stable employment and housing, and

preference for residing with paramours who pose risks to the children. See

K.H.O., 161 N.J. at 356 (finding a parent's "inability to provide any nurturing or

care for [a child] for [a] prolonged period is harm . . . that is cognizable under

the best interests standard"). Moreover, Dr. Mack's testimony explained and

established that the children have suffered and will continue to suffer harm from

their relationship with Tara.

      The second prong of the best-interests standard "relates to parental

unfitness," which may be established by demonstrating that: (1) "the parent is

'unwilling or unable to eliminate the harm'"; or (2) "the parent has failed to

provide a 'safe and stable home'" and "a 'delay in permanent placement' will

further harm the child." Id. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). The

inquiry is "whether that parent can raise the child without inflicting any further

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

Div. 2006).

      To be sure, there is evidence Tara would like to provide a safe and stable

home for the children and has, on occasion, taken steps to do so. "Concern and

efforts by a natural parent after his or her child has been removed from the home,


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                                       25
and making genuine and successful efforts to overcome the cause of the removal

is of enormous significance" when determining fitness. N.J. Div. of Youth &

Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009). However,

Tara has consistently abandoned her efforts to address the issues requiring the

placement of the children due to bad judgment, mental health and substance

abuse issues and poor decision-making. Over a three-and-a-half-year period,

Tara demonstrated she is both unwilling and unable to address and resolve the

issues in order to eliminate the harm to the children and provide for them a safe

and stable home. There is no basis to conclude the court's finding as to the

second prong of the standard is "so 'clearly mistaken' or 'wide of the mark'" that

we should intervene to ensure against a denial of justice. E.P., 196 N.J. at 104

(quoting G.L., 191 N.J. at 605). To the contrary, the finding is amply supported

by the evidence the court found credible.

      We next consider Tara's assertion the Division failed to present sufficient

evidence establishing that termination of her parental rights will not do more

harm than good. N.J.S.A. 30:4C-15.1(a)(4). Prong four "serves as a fail-safe

against termination even where the remaining standards have been met." G.L.,

191 N.J. at 609. Under the fourth prong of the best-interests standard, "[t]he

question ultimately is not whether a biological mother or father is a worthy


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                                       26
parent, but whether a child's interest will best be served by completely

terminating the child's relationship with that parent." E.P., 196 N.J. at 108. The

Division and the Law Guardian argue the court correctly concluded termination

of Tara's parental rights will not do more harm than good because the children

have strong bonds to their respective resource parents that will mitigate against

the termination of Tara's parental bond and the resource parents provide

permanency to the children through adoption.

      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. "[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." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 181 (2010)

(quoting In re Guardianship of J.N.H., 172 N.J. 440, 478 (2002)).


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                                        27
      Dr. Mack generally testified the children were "well bonded to their

[respective] foster parents," in part due to Tara's inability to care for the children

"for a long period of time."      He also opined that the children's respective

resource parents "would be able to mitigate any harm that termination of

parental rights might cause," and that Tara would be unable "[o]ver the long

term" "to mitigate the harm posed to the children should their bonds with the[ir]

resource parents be broken." Dr. Mack further explained that Tara's parenting

capacity was not "likely to change in the foreseeable future" and the children

were "at the point where [they] need stability and . . . permanency and . . . the

type of consistency that is being provided to them by their current caretakers."

Dr. Mack's testimony, which the court found credible, is uncontroverted.

      The evidence also showed that Zelda's resource parent planned to adopt

the child, thereby providing the permanency Dr. Mack relied upon to support

his opinion that the termination of Tara's parental rights to Zelda will not do

more harm than good.         We are therefore convinced the court correctly

determined the Division presented clear and convincing evidence establishing

prong four of the best interests standard for the termination of Tara's rights to

Zelda.




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      We are not, however, convinced the evidence supports the court's finding

the Division clearly and convincingly established that termination of Tara's

parental rights to Matt will not do more harm than good. In assessing the relative

harms resulting from the termination of Tara's parental rights, the court found

Matt's resource parents offered him permanency because they made a

"commitment" to adopt him. That finding is undermined by the record.

      In his August 3, 2017 report concerning his bonding evaluation of Tara

and Matt, Dr. Mack opined that it was in Matt's best interest "to be adopted by"

Zelda and Ariel's resource parent, even though Matt has never lived with the

resource parent and no bonding evaluation between Matt and the resource parent

had been conducted. Three months later, Dr. Mack's opinion changed.

      In his November 1, 2017 report, Dr. Mack explained that Matt's resource

parents reported they fostered Matt with the understanding he would be reunited

with Tara, placed with a member of her family or adopted by Zelda's resource

mother. Thus, they fostered Matt without a "frame of mind" that they might

adopt him and were surprised when their possible adoption of Matt was

proposed.

      Matt's resource parents also indicated they needed time to consider

whether they would adopt and wanted to see how Matt "is going to progress."


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                                       29
The resource mother has told Matt she is "not ready yet" to adopt him. Indeed,

in Dr. Mack's report, he states that although Matt has thrived in his resource

parents' care, they "are unsure if they will pursue adoption and they feel

pressured to make an immediate decision." Dr. Mack recommended that the

resource parents "be given adequate time and support to come to a decision

regarding adoption." At trial, there was no evidence Matt's resource parents

decided to adopt him and Dr. Mack did not address the potential harm to Matt if

Tara's parental rights are terminated and his resource parents opt not to adopt

him.

       Nevertheless, at trial Dr. Mack offered the following "recommendation

. . . of what is in [Matt's] best interest for permanency": "[b]eing adopted by his

current [resource] parents."   And the court's conclusion, and the Division and

Law Guardian's argument, that termination of Tara's parental rights to Matt

would not do more harm than good are grounded on the premise that Matt will

gain permanency through adoption by his resource parents. 5


5
  Dr. Mack's August 3, 2017 report recommends termination of Tara's parental
rights in favor of Matt's adoption by Zelda and Ariel's resource parent. The
court, however, did not find the Division proved termination of Tara's parental
rights to Matt will not do more harm than good based on the permanency that
might be offered if Zelda and Ariel's resource parent adopted Matt. Moreover,
there is no expert testimony supporting a finding that termination of Tara 's

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                                       30
      Matt's need for permanency is particularly acute because, according to Dr.

Mack, Matt suffers from numerous issues, including chronic nocturnal enuresis

and anxiety, directly related to his uncertainty about the permanency of his

placement. "[A] child's need for permanency is an extremely important

consideration" in the determination of the fourth prong of the best interests

standard. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 559 (2014).

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."     E.P., 196 N.J. at 108

(alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. A.W.,

103 N.J. 591, 610 (1986)). Accordingly, a court's analysis "must necessarily

include a discussion of a child's prospects of permanency as terminating parental

rights without any compensating benefit, such as adoption, may do great harm




parental rights to Matt in favor of an adoption by Zelda and Ariel's resource
mother will not do more harm than good. K.H.O., 161 N.J. at 355 (explaining
that a determination of whether "a child will suffer a greater harm from the
termination of ties with [his] natural parents than from the permanent disruption
of [his] relationship with foster parents" "'necessarily requires expert inquiry
specifically directed to the strength of each relationship'" (quoting J.C., 129 N.J.
at 25)).

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                                        31
to a child." N.J. Div. of Youth & Family Servs. v. L.M., 430 N.J. Super. 428,

450 (App. Div. 2013).

      The court's analysis of the compensating benefits of the termination of

Tara's parental rights to Matt and the resulting severance of the bond she has

with the child rests on the unsupported premise that Matt will find permanency

through adoption by his resource parents. 6 As noted, however, Matt's resource

parents were unprepared to make a commitment to adopt, "unsure" if they would

adopt and their decision to adopt, at least in part, depended on Matt's "progress."

Thus, terminating Tara's parental rights may present a "detriment . . . greater

. . . since the child's psychological and emotional bond to the parent may have

been broken with nothing substituted in its place." E.P., 196 N.J. at 109 (quoting

A.W., 103 N.J. at 611).




6
  We recognize that proving permanency through adoption is not essential to a
finding that termination of parental rights will not do more harm than good under
the fourth prong of the best interests standard. See, e.g., A.W., 103 N.J. at 611
(noting termination of parental rights may be warranted although no immediate
prospect of adoption exists). Here, however, it is the purported permanency
through adoption by Matt's resource parents upon which the Division and Law
Guardian rely to support their argument that termination of Tara's parental rights
will not do more harm than good, and the court's finding on prong four is based
on its determination that Matt will obtain permanency through adoption by his
resource parents.
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                                       32
      We are therefore constrained to conclude the Division failed to establish

by clear and convincing evidence the fourth prong of the best interests standard

as to Matt. We reverse the order terminating Tara's parental rights to Matt

without prejudice, but affirm the order continuing Matt in the care and custody

of the Division. See, e.g., G.L., 191 N.J. at 607-09 (finding failure to establish

each of the four prongs of the best interests standard by clear and convincing

evidence requires reversal of an order terminating parental rights).

      Those portions of the judgment of guardianship terminating Tara's

parental rights to Zelda and continuing Matt in the care and custody of the

Division are affirmed. The termination of Tara's parental rights to Matt is

reversed without prejudice. We do not retain jurisdiction.




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