                                      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                                 NOT FOR PUBLICATION WITHOUT THE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-1820-18T2
                                                                    A-1821-18T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

L.J. and C.G.,

          Defendants-Appellants.


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

          a Minor.


                   Argued telephonically June 2, 2020 –
                   Decided July 2, 2020

                   Before Judges Accurso, Gilson and Rose.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Monmouth County,
                   Docket No. FG-13-0061-18.
            Cecilia M.E. Lindenfelser, Designated Counsel, argued
            the cause for appellant L.J. (Joseph E. Krakora, Public
            Defender, attorney; Robyn A. Veasey, Deputy Public
            Defender, of counsel; Cecilia M.E. Lindenfelser, on the
            briefs).

            Daniel Anthony DiLella, Designated Counsel, argued
            the cause for appellant C.G. (Joseph E. Krakora, Public
            Defender, attorney; Robyn A. Veasey, Deputy Public
            Defender, of counsel; Daniel Anthony DiLella, on the
            briefs).

            Salima E. Burke, Deputy Attorney General, argued the
            cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Melissa H. Raksa, Assistant
            Attorney General, of counsel; Salima E. Burke, on the
            brief).

            Melissa R. Vance, Assistant Deputy Public Defender,
            argued the cause for minor (Joseph E. Krakora, Public
            Defender, Law Guardian, attorney; Meredith Alexis
            Pollock, Deputy Public Defender, of counsel; Melissa
            R. Vance, of counsel and on the brief).

PER CURIAM

      In this consolidated matter, defendants L.J. (Father) and C.G. (Mother)

appeal a Family Part judgment terminating their parental rights to their

biological son J.R. (John),1 born in May 2016. Mother argues the Division of

Child Protection and Permanency failed to establish all four prongs of the best



1
  We use initials and pseudonyms to protect the privacy of the parties, see R.
1:38-3(d)(12), and for ease of reference.
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                                      2
interests standard under N.J.S.A. 30:4C-15.1(a)(1)-(4). Father primarily focuses

on the requirements of the third prong, emphasizing the Division failed to

consider alternatives to termination. John's law guardian joins the Division in

urging us to affirm. Based on our review of the record and applicable law, we

are satisfied the evidence in favor of the guardianship petition supports the

termination of defendants' parental rights. See N.J. Div. of Youth & Family

Servs. v. M.M., 189 N.J. 261, 279 (2007). Accordingly, we affirm.

                                       I.

      The guardianship trial spanned six days, during which the Division

presented the testimony of three caseworkers, and its expert psychologist, Lori

Lessin, Ph.D., who performed the psychological evaluation of Mother and

bonding evaluations of John with Mother and his resource parents. The law

guardian presented the testimony of its expert psychologist Dr. Maureen

Santina, Ph.D., who observed a visit between John and Father at the county jail.

Defendants did not testify; Father presented the testimony of three relatives to

challenge the merits of the Division's "rule outs." The parties also moved into

evidence hundreds of documents, including the caseworkers' reports, bonding

evaluations, and rule-out letters.




                                                                        A-1820-18T2
                                       3
      John has never lived with his parents. The Division became involved with

Mother and John the day after the child was born, following a referral from the

hospital that cited concerns for Mother's well-being, including her impending

homelessness.    Mother initially named her boyfriend, J.R. (Jim), as John's

biological father, although she and Jim suspected another man – whom mother

refused to identify – could be John's father.

      Mother acknowledged a history of mental illness, including psychiatric

hospitalizations, but said she was not presently receiving treatment. Mother

agreed to a safety protection plan, whereby she and John would be supervised

by a family member or friend.         The Division considered John's maternal

grandmother, and several friends proposed by Mother and Jim, but none was a

viable option. Mother agreed that, upon John's release from the hospital, he

could stay with her friend, Co. L. (Colleen), without Mother.       Unable to

implement a safety protection plan to enable Mother and John to live together,

the Division sought and received custody of John, and placed him with Colleen

upon his release from the hospital.

      Six months later, John was placed with Colleen's parents (resource

parents), with whom he has lived ever since. Although the resource parents




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                                        4
initially were open to kinship legal guardianship, 2 they have since expressed

their unequivocal desire to adopt John.

      During the course of the litigation, the Division provided a multitude of

services to Mother, including psychological evaluations, referrals for mental

health services, parenting skills training, supervised parenting time, and

financial assistance with transportation. But Mother was inconsistent with her

mental health treatment and was psychiatrically hospitalized during the course

of the litigation. Mother fluctuated between her desire to kidnap John and "not

want[ing] the child." Mother's attendance at visits was inconsistent, missing

some visits and arriving late for others. Mother's interactions with John varied:

she was often disengaged and failed to respond to his needs. At one point,

Mother absented herself from John's life for eight months, failing to notify the

Division of her whereabouts. And during Dr. Lessin's psychological evaluation,

Mother "abruptly announced that she needed a domestic violence counselor,"

marking the first time she claimed domestic violence existed in her relationship

with Jim.




2
  See N.J.S.A. 3B:12A-6(d); see also N.J. Div. of Youth & Family Servs. v.
P.P., 180 N.J. 494, 512-13 (2004) (clarifying that kinship legal guardianship
should only be considered when adoption is not possible).
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                                          5
      Meanwhile, in mid-July 2016, Mother provided Father's name to the

Division, and said he was incarcerated; two weeks later a paternity test

confirmed Jim was not John's father. In mid-August, a Division worker met

with Father at South Woods State Prison. Father claimed he could be released

by March 2018, but he was later sentenced to a twelve-year prison term and was

incarcerated at the time of the guardianship trial. Father offered his sister, J.J.

(Jessie) as a possible placement for John, but Jessie could not be evaluated until

DNA testing later confirmed Father's paternity.

      The Division provided Father visitation in prison; arranged for court -

ordered psychological and bonding evaluations; and offered counseling and

parenting classes. Father's interaction with John during visits was inconsistent;

John often became visibly upset on visitation day. Following Dr. Santina's

observed visit, she opined the visits had "a harmful emotional impact on J[ohn]."

Father refused court-ordered evaluations and claimed he had completed the

programs offered by the Division.

      Several relative placements were considered by the Division, including

Mother's sister, who later withdrew her application. Jessie and Father's n iece,

R.H., were ruled out following background checks.             The Division also

considered Father's niece, T.R. (Tara), who twice was ruled out by the Division;


                                                                           A-1820-18T2
                                        6
appealed those decisions; and ultimately was ruled out because the Division

found disruption of John's bond with his resource parents would not be in his

best interests. Tara's brother, J.H., was considered and ruled out because he

would not commit to the licensing process. In May 2018 – more than two years

after John's birth – Father proposed two other relatives: G.D. and K.G., who

were ruled out on a best interests basis, and K.G. did not pass the background

check.

      Based on the evidence adduced at the guardianship trial, the judge

considered each prong of the best interests test, and gave careful attention to the

importance of permanency and stability for John. As one notable example, the

judge credited the expert opinion of Dr. Lessin, noting the psychologist's "very

serious concerns with [Mother's] mental health." The judge also recognized the

"strong and secure bond" between John and his resource parents. Ultimately,

the judge concluded the Division demonstrated by clear and convincing

evidence that termination of defendants' parental rights was in John's best

interests. N.J.S.A. 30:4C-15.1(a); In re Guardianship of K.H.O., 161 N.J. 337,

347-48 (1999). These appeals followed.




                                                                           A-1820-18T2
                                        7
                                        II.

      Our review of a judgment terminating parental rights is limited. N.J. Div.

of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). We are bound to

accept the trial court's findings, as long as they are "supported by adequate,

substantial, and credible evidence." Ibid. (citing N.J. Div. of Youth & Family

Servs. v. E.P., 196 N.J. 88, 104 (2008)). Additionally, we accord a family court's

decision particular deference in view of its "special jurisdiction and expertise in

family matters," and because the court is uniquely in a position to evaluate the

credibility of the witnesses. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). We

review the trial court's legal interpretations de novo. R.G., 217 N.J. at 552-53.

      Parents have a fundamental right to raise their children, and that right is

constitutionally protected. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.

596, 605 (2007). "[T]erminations should be granted sparingly and with great

caution because they irretrievably impair imperative constitutionally-protected

liberty interests and scores of centuries of societal family constructs." R.G., 217

N.J. at 553 (citation omitted). But, a parent's rights are not absolute. Ibid.

"Because of its parens patriae responsibility, the State may terminate parental

rights if the child is at risk of serious physical or emotional harm or when

necessary to protect the child's best interests." Id. at 553-54 (citing N.J. Div. of


                                                                            A-1820-18T2
                                         8
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).

      To effectuate those concerns, the Legislature created a test for determining

when a parent's rights must be terminated in a child's best interests, requiring

the Division to 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.
            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.

            [N.J.S.A. 30:4C-15.1(a)(1)-(4).]


                                                                          A-1820-18T2
                                        9
      The four prongs are not independent of one another. Rather, they "are

interrelated and overlapping[,] . . . designed to identify and assess what may be

necessary to promote and protect the best interests of the child." N.J. Div. of

Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006).

Parental fitness is the crucial issue. K.H.O., 161 N.J. at 348. Determinations of

parental fitness are very fact sensitive and require specific evidence. Ibid.

Ultimately, "the purpose of termination is always to effectuate the best interests

of the child, not the punishment of the parent." Id. at 350.

      We first consider defendants' overlapping arguments that the trial judge's

findings were insufficient to establish the first and second prongs of the best

interests test. In particular, Mother contends she did not cause John harm, and

the Division hastily ruled out her friend as an appropriate superviso r, thereby

preventing her from parenting John. Father claims his imprisonment cannot be

a basis for finding he caused harm to John especially where, as here, he proposed

relative placements for the child's care. Defendants' arguments are unavailing.

      Relevant here, "[w]hen the condition or behavior of a parent causes a risk

of harm, such as impermanence of the child's home and living conditions, and

the parent is unwilling or incapable of obtaining appropriate treatment for that

condition, the first subpart of the statute has been proven." N.J. Div. of Youth


                                                                          A-1820-18T2
                                       10
& Family Servs. v. H.R., 431 N.J. Super. 212, 223 (App. Div. 2013); see also

N.J. Div. of Youth & Family Servs. v. L.M., 430 N.J. Super. 428, 444 (App.

Div. 2013) (holding that a parent's "continued drug use, lack of appropriate

housing, and failure to attend treatment, clearly posed a risk to the children" and

satisfied prong one of the best interests test).

      The second prong "relates to parental unfitness," K.H.O., 161 N.J. at 352.

"[T]he inquiry centers on whether the parent is able to remove the danger facing

the child." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 451

(2012). This prong is satisfied "by demonstrating that the parent has not cured

the problems that led to the removal of the child." H.R., 431 N.J. Super. at 224.

"In other words, the issue becomes whether the parent can cease causing the

child harm before any delay in permanent placement becomes a harm in and of

itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434

(App. Div. 2001); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J.

494, 512 (2004) (holding that prong two was proven by clear and convincing

evidence where the parents repeatedly failed "to comply with [the Division's]

recommendations and court orders for services," and "were not in a position to

care for their children" at the time of trial).




                                                                           A-1820-18T2
                                         11
      As is often the case, the trial judge's findings regarding the first prong,

informed and overlapped the second. See R.L., 388 N.J. Super. at 88. The

judge's prong one and prong two findings not only focused on Mother's

pervasive mental health issues and Father's incarceration, but also on defendants'

inability to eliminate the harm, despite the Division's efforts to assist them.

According to the judge, Mother "refused to comply with services and address

[her mental health issues]," which were "still existing" at the time of trial. 3 The

judge cited Father's lengthy prison term and refusal to cooperate with the

Division. The record supports the judge's findings.

      Regarding Mother, we recognize "[m]ental illness, alone, does not

disqualify a parent from raising a child." F.M., 211 N.J. at 450. But, the best

interests test can be met by expert evidence demonstrating that a parent's mental

illness prevents her from meeting a child's daily needs. A.G., 344 N.J. Super.

at 436. The Division is not required to "wait to act until a child is actually

irreparably impaired by parental inattention or neglect." In re Guardianship of

D.M.H., 161 N.J. 365, 383 (1999).




3
  As the trial judge observed, Mother had given birth to another child after John
was born. That child was removed from Mother's care, but is not a party to the
present guardianship complaint or this appeal.
                                                                            A-1820-18T2
                                        12
      One such need is a stable and safe home, the deprivation of which causes

a child psychological harm. See K.H.O., 161 N.J. at 353; D.M.H., 161 N.J. at

379. When mental illness causes risk of harm, such as the inability to maintain

a safe environment, and the parent is unwilling or incapable of obtaining

appropriate treatment, the first prong has been proven. F.M., 211 N.J. at 450-

51. We are satisfied that the record, especially Dr. Lessin's expert testimony,

fully supports the judge's finding that Mother's mental illness has prevented –

and will continue to prevent – her from providing John a safe home and the

nurturing he requires. Moreover, as the judge observed, mother was living in a

shelter at the time of trial.

      As to Father, our Supreme Court has recognized that although

imprisonment      alone    is   insufficient   to   establish   parental   unfitness,

"particularized evidence of how a parent's incarceration affects each prong of

the best-interests-of-the-child standard" can support termination of parental

rights of an incarcerated parent. R.G., 217 N.J. at 556. In R.G., the Court found

"the Division failed to show by clear and convincing evidence that [the

defendant-father's] incarceration caused harm to [the child]" because the father

"parented [the child] prior to his incarceration," and remained a part of the




                                                                             A-1820-18T2
                                         13
child's life and communicated with the child while incarcerated. 217 N.J. at

559-60.

      Father's reliance on R.G. to support his arguments as to the first and

second prongs is misplaced. Unlike the defendant in R.G., Father never lived

with John, and never cared for or supported the child. As the trial judge correctly

noted, Father had not engaged in any services, despite the Division's efforts to

assist him. And as Dr. Santina observed, Father's visits with John were harmful

to the child. Contrary to Father's assertion, the trial judge's findings of harm

and Father's inability to eliminate that harm were not based upon Father's

incarceration alone.

      Prong three requires the Division to establish it "made reasonable efforts

. . . to help the parent correct the circumstances which led to the child's

placement outside the home" and considered alternatives to termination of

parental rights. N.J.S.A. 30:4C-15.1(a)(3). Mother primarily challenges the

first part of the prong; father primarily challenges the second.

      In view of the services offered to both defendants, we find insufficient

merit in their contentions that the Division failed to make reasonable efforts to

assist them to warrant discussion in this written opinion. R. 2:11-3(e)(1)(E).

We simply note the reasonableness of the Division's efforts is not measured by


                                                                           A-1820-18T2
                                       14
whether those efforts were successful in bringing about reunification of parent

and child. D.M.H., 161 N.J. at 393.

       We turn instead to Father's claim that the Division failed to properly

evaluate his suggested relatives. The Division has a statutory obligation t o

"search for relatives who may be willing and able to provide the care and support

required by the child." N.J.S.A. 30:4C-12.1(a); N.J. Div. of Child Prot. and

Permanency v. K.N., 435 N.J. Super. 16, 29 (App. Div. 2014), aff'd as modified,

223 N.J. 530 (2015). There is, however, no presumption in favor of placement

with relatives or friends. N.J. Div. of Youth & Family Servs. v. K.L.W., 419

N.J. Super. 568, 580 (App. Div. 2011). The presumption of custodial placement

only exists between a child and his biological parents, not a proposed placement

with family or a friend. N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J.

Super. 69, 82 (App. Div. 2013). The reasonableness of the Division's efforts to

consider alternatives to termination is fact sensitive. A.G., 344 N.J. Super. at

435.

       Here, the Division properly ruled out defendants' relatives because they

either withdrew from consideration; were ruled out based on their background

checks; were proposed after John had formed a bond with his resource parents;

or a combination of those reasons. More importantly, the undisputed expert


                                                                         A-1820-18T2
                                      15
evidence confirmed John had a strong attachment to his resource parents and

would suffer severe and enduring harm if removed from them. And, John's

resource parents are no strangers to Mother: they are the parents of Mother's

friend, Colleen, with whom John was placed – at Mother's request – before

Mother named Father as a potential biological parent.

      Moreover, the resource parents are committed to adopting John. In that

regard, after briefing on this appeal, we granted the Division's motion for a

limited remand for the trial court to clarify the resource parents' commitment to

adoption or preference for kinship legal guardianship (KLG) pursuant to N.J.

Division of Child Protection & Permanency v. M.M., 459 N.J. Super. 246 (App.

Div. 2019). Another judge conducted the remand hearing, during which the

Division presented the testimony of the resource parents and the adoption

caseworker.

      In a cogent oral decision, the motion judge found the testimony of the

Division's witnesses credible, remarking the resource parents were "extremely

forthright."   Citing our decision in M.M., the judge found the Division

demonstrated "by clear and convincing evidence that the resource parents were

fully informed regarding the benefits and burdens of KLG" and "the differences

between KLG and adoption." The judge concluded the resource parents were


                                                                         A-1820-18T2
                                      16
"fully committed to adoption," and their decision to adopt John was

"unconditional, unambiguous and unqualified."          Given our discretionary

standard of review, we discern no reason to disturb the judge's decision, which

is fully supported by the record. R.G., 217 N.J. at 552.

      "[T]o satisfy the fourth prong, the State should offer testimony of a well-

qualified expert who has had full opportunity to make a comprehensive,

objective, and informed evaluation of the child's relationship with both the

natural parents and the foster parents." M.M., 189 N.J. at 281 (citation omitted).

An important consideration under this prong is "the child's need for

permanency." Ibid. "Ultimately, a child has a right to live in a stable, nurturing

environment and to have the psychological security that his most deeply formed

attachments will not be shattered." F.M., 211 N.J. at 453.

      The uncontroverted expert evidence in this case provides overwhelming

support for the trial judge's finding that there is a deep bond between John and

his resource parents and that he would suffer serious and enduring emotional or

psychological harm if he were separated from them. John has lived with his

foster parents continuously since he was six months old. Importantly, he has no

bond with defendants. Moreover, John's resource parents have now made it

unequivocally clear they want to adopt John. Accordingly, this is a case in


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                                       17
which "termination of . . . parental rights [will] secure for [John] a safe, loving

home and the care of . . . stable adult[s] who [are] intent on assuring the child's

psychological and physical well-being." N.J. Div. of Youth & Family Servs. v.

T.S., 417 N.J. Super. 228, 248 (App. Div. 2010).

      Affirmed.




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