                                      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                                 NOT FOR PUBLICATION WITHOUT THE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-5644-17T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

J.M.S.,

          Defendant,

and

B.M.,

     Defendant-Appellant.
_____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF G.J.S.,

     a Minor.
_____________________________

                   Submitted May 21, 2019 – Decided May 31, 2019

                   Before Judges Rothstadt, Gilson and Natali.
              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Mercer County,
              Docket No. FG-11-0042-17.

              Joseph E. Krakora, Public Defender, attorney for
              appellant B.M. (Steven Edward Miklosey, Designated
              Counsel, on the brief).

              Gurbir S. Grewal, Attorney General, attorney for
              respondent (Jason Wade Rockwell, Assistant Attorney
              General, of counsel; Alicia Y. Bergman, Deputy
              Attorney General, on the brief).

              Joseph E. Krakora, Public Defender, Law Guardian,
              attorney for minor (Olivia Belfatto Crisp, Assistant
              Deputy Public Defender, on the brief).

PER CURIAM

      Defendant B.M. (Benjamin) 1 appeals from a judgment terminating his

parental rights to his son, G.J.S. (George), who was born on May 31, 2014. The

child's mother, J.M.S. (Jennifer), whose parental rights were terminated during

the same proceeding, has not appealed. We find no merit in Benjamin's appeal

and affirm.

      Benjamin argues that the Division of Child Protection and Permanency

(Division) failed to prove prongs three and four of the "best interests of the

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


1
  We use fictitious names for B.M., G.J.S., J.M.S., L.A.R., and C.T., to protect
their privacy and for ease of reference. See R. 1:38-3(d)(12).
                                                                        A-5644-17T2
                                       2
With respect to prong three, Benjamin maintains that the Division did not

consider "alternatives to termination of parental rights" because it failed to

promptly locate and evaluate relatives for George's placement, including

Benjamin's mother, L.A.R. (Lacey).         He further asserts that the Division

improperly ruled out Lacey as a resource placement, without facilitating a

second bonding evaluation. As to prong four, Benjamin claims that the Division

did not establish by clear and convincing evidence that termination of his

parental rights "will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4).2

      All of the judge's findings are supported by substantial, credible evidence

and, therefore, are entitled to our deference. N.J. Div. of Youth and Family

Servs. v. F.M., 211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394,

413 (1998).     Accordingly, we reject Benjamin's arguments and affirm

substantially for the reasons set forth by Judge Rodney Thompson in his

comprehensive and well-reasoned forty-eight-page written opinion. We add the

following comments.


2
  On appeal, Benjamin has not argued that the Division failed to establish prongs
one and two of N.J.S.A. 30:4C-15.1(a). Nor has he challenged the court's
finding under N.J.S.A. 30:4C-15.1(a)(3) that the Division made "reasonable
efforts to provide services to help [him] correct the circumstances which led to
the child's placement outside the home." We have nevertheless independently
reviewed the record and are satisfied that the Division clearly and convincingly
satisfied those statutory elements as well.
                                                                         A-5644-17T2
                                       3
      Parents have a constitutionally protected right to the care, custody, and

control of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982). "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 (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 In re Guardianship

of K.H.O., 161 N.J. 337, 347 (1999).

      The constitutional right to the parental relationship, however, is not

absolute. 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. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To

effectuate these concerns, the Legislature created a test for determining whether

a parent's rights must be terminated in the child's 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

                                                                                A-5644-17T2
                                           4
            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 [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., 103 N.J. at 604-11.

      With respect to Benjamin's challenge to the court's prong three findings,

as noted, he asserts that the Division failed to conduct a search for appropriate

relative placements.   We acknowledge that under N.J.S.A. 30:4C-12.1, the

Division may not "embark on a course set for termination of parental rights and

adoption by a foster parent without at least first exploring available relative

placements." N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 81

(App. Div. 2013). In this regard, N.J.S.A. 30:4C-12.1(a) requires that once the

Division accepts a child into its care or custody, it shall "initiate a search for

relatives who may be willing and able to provide the care and support required

by the child." Further, "the Division's statutory obligation does not permit

willful blindness and inexplicable delay in assessing and approving or

                                                                          A-5644-17T2
                                        5
disapproving a relative known to the Division . . . ." N.J. Div. of Youth &

Family Servs. v. K.L.W., 419 N.J. Super. 568, 582 (App. Div. 2011). There is

no presumption, however, in favor of relative placement. J.S., 433 N.J. Super

at 82.

         Here, three days after George's placement with his resource family,

Benjamin provided the Division with the name of C.T. (Cathy), as a potential

placement for George. 3 The Division promptly assessed Cathy, and determined

that because her boyfriend had two active warrants, George could not be placed

in a home with her. Based on this evidence, Judge Thompson concluded that

the Division "conducted the necessary checks" before ruling Cathy out.

         With respect to Benjamin's contention that the Division failed to

appropriately consider Lacey as a relative resource placement, we note that there

is no evidence in the record to suggest that the Division knew, or should have

known, of Lacey's existence prior to her contact with the Division to identify

herself as a prospective relative resource placement.        Indeed, as Benjamin

concedes, while Lacey provided support to the family after George's birth, she

"became estranged shortly afterward" and distanced herself from the family for

"many months." As we have previously held, the Division is not expected "to


3
    There is nothing in the record describing Cathy's relationship to the parties.
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                                          6
locate a relative with no information" or "search the fifty states or even the

twenty-one counties to identify a parent's siblings, cousins, uncles and aunts."

K.L.W., 419 N.J. Super at 582.

      As Judge Thompson explained, once Lacey identified herself as a

potential relative placement, "[t]he Division conducted the necessary

background checks and home assessment, and facilitated visits" between Lacey

and George. The Division also assisted Lacey in obtaining a resource license.

      The Division thereafter scheduled a bonding evaluation between George

and his resource family. The results of that evaluation, conducted by Amy

Becker-Mattes, Ph.D., concluded that George's resource mother served as his

primary attachment figure and removing George from the resource family's care

would be detrimental to his well-being.       Additionally, Dr. Becker-Mattes

testified at trial that severing George's bond with his resource family "would

cause harm that would be ongoing and potentially irreparable." Accordingly,

Dr. Becker-Mattes concluded it was in George's best interests not to be removed

from their care.

      Despite the results of the bonding evaluation with George's resource

family, the Division continued to assess Lacey.       Indeed, after months of

facilitated visits with George, the Division scheduled a bonding evaluation


                                                                        A-5644-17T2
                                       7
between Lacey and George. According to the trial record, that evaluation went

poorly as George would only permit the Division worker to console him. In

light of the bonding evaluation between George and his resource family, the

Division issued Lacey a rule-out letter advising her that George would not be

placed with her as the Division concluded it would be contrary to George's best

interests. See N.J.S.A. 30:4C-12.1(c).4

      Based on these facts, George's reliance on K.L.W. for the proposition that

the Division failed to satisfy prong three is misplaced.      In that case, the

Division's failed to contact and assess a child's maternal grandparents, whom it

knew had custody of the child's siblings, thereby depriving the court of a

meaningful opportunity to determine whether the placement was in the child's

best interests. K.L.W., 419 N.J. Super. at 581-82. Here, Lacey did not have

Benjamin's siblings in her care and custody, nor is there any evidence that the

Division had knowledge of Lacey's existence and abjectly failed to consider her

as a relative resource placement.


4
  Neither Benjamin nor Lacey requested a best-interests hearing to address the
propriety of the Division's rule-out letter. See J.S., 433 N.J. Super. at 83-84.
The court, in its prong three findings, however, conscientiously considered all
of the evidence, including the unrebutted testimony from Dr. Becker-Mattes that
adoption by his resource parents was in George's best interests. Based on that
evidence and the court's factual findings, we conclude the Division correctly
ruled out Lacey.
                                                                        A-5644-17T2
                                       8
      Rather, based upon the results of bonding evaluations between Lacey and

George, and George and his resource family, the Division concluded it would

be contrary to George's best interests to be placed with Lacey. Accordingly, the

Division complied with its statutory obligations, and the court's determination

was not "made without information relevant to the best interests of the child,"

as in K.L.W. Id. at 581.

      Nor do we find any support in the record that a second bonding evaluation

of Lacey was required. Benjamin presented no expert evidence to suggest the

initial bonding evaluation was improper, or that there was a serious and enduring

bond between Lacey and George. To the contrary, the trial evidence supported

the court's conclusion that severing the bond between George and his resource

family would cause George ongoing and irreparable harm.

      Finally, we also reject Benjamin's challenge to the court's prong four

finding. Prong four addresses "whether, after considering and balancing the two

relationships, the child will suffer a greater harm from the termination of ties

with her natural parents than from the permanent disruption of her relationship

with her foster parents." K.H.O., 161 N.J. at 355. Here, Benjamin failed to

complete mental health services and substance abuse treatment, remained

unemployed without consistent and stable housing, and failed to present any


                                                                         A-5644-17T2
                                       9
plan to remedy these issues. Further, he failed to visit George consistently, and

did not participate in his scheduled bonding evaluation.

      As Judge Thompson explained, there was no evidence that Benjamin

could appropriately care for now-four-year-old George. In addition, the court

noted that the bonding evaluation with George and his resource family, along

with Dr. Becker-Mattes's unrebutted expert testimony at trial, demonstrated a

strong, positive bond, "and severing th[at] bond would result in severe and

enduring harm" to George.

      In sum, after a thorough review of the record, we conclude that Judge

Thompson's factual findings are fully supported by the record developed during

the four-day trial and, in light of those facts, his legal conclusions as to the best

interests of the child test are unassailable. To the extent we have not specifically

addressed any of Benjamin's arguments, we find them to be without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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