                             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                        NOT FOR PUBLICATION WITHOUT THE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-0934-16T1
                                                         A-0935-16T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

N.C. and R.S.,

     Defendants-Appellants.
____________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF Q.C. AND M.S., minors.
____________________________________

              Submitted October 18, 2017 – Decided December 5, 2017

              Before Judges Fuentes, Koblitz, and Suter.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Passaic
              County, Docket No. FG-16-0068-15.

              Joseph E. Krakora, Public Defender, attorney
              for appellant N.C. (Jennifer M. Kurtz,
              Designated Counsel, on the brief).

              Joseph E. Krakora, Public Defender, attorney
              for   appellant   R.S.    (Richard  Sparaco,
              Designated Counsel, on the brief).

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Andrea M. Silkowitz,
           Assistant Attorney General, of counsel;
           Melissa Medoway, Deputy Attorney General, on
           the brief).

           Joseph E. Krakora, Public Defender, Law
           Guardian, attorney for minors Q.C. and M.S.
           (Margo E.K. Hirsch, Designated Counsel, on the
           brief).

PER CURIAM

     In these consolidated appeals, N.C. (Nancy) and R.S. (Roger)

appeal the October 13, 2016 Family Part order terminating their

parental rights to two children.           We affirm substantially for the

reasons set forth in Judge Daniel J. Yablonsky's September 19,

2016 comprehensive and well-reasoned written opinion.

     The evidence is set forth in detail in the judge's opinion.

A summary will suffice here.

     Nancy   and   Roger   are   the   parents    of   two   children,   Q.C.

(Quenton), born in 2008, and M.S. (Mary), born in 2010.1           The most

recent referral to the Division of Child Protection and Permanency

(DCPP) occurred on June 3, 2013, when Nancy awoke in bed with her

then partner to find her two-month old infant, dead, laying between

them.   She acknowledged going to sleep with the child on her chest




1
  Nancy and Roger are the parents of other children with other
partners, but Quenton and Mary are the only children involved in
this case.

                                       2                           A-0934-16T1
after smoking marijuana.    Roger was not present or involved with

the incident.

       Following an emergency removal, the children were placed

under the care, supervision and custody of the DCPP.   The children

were placed with a relative at first; but this person was not able

to care for the children long-term.     They then were placed with

the maternal grandmother.   Unfortunately, she allowed Nancy, whose

parenting time was to be supervised, and her brother J.C., a

convicted sex offender, to have unsupervised contact with the

children.    The children were removed in August 2013, and placed

with K.C. (Katie), a maternal great aunt.     They remained in her

care until February 2014, when Katie, who was a military reservist,

was deployed. The children were placed temporarily with a resource

family we refer to here as the Cannons;2 but that placement was

extended when Katie was injured while on assignment.

        Quenton complained to Ms. Cannon that Katie was abusive to

him.    When Katie came to visit the children, Ms. Cannon saw Katie

hit Mary on the legs for discipline.    Ms. Cannon reported this to

DCPP.    After an investigation, DCPP determined that Katie was not




2
    We use a fictitious name to maintain confidentiality.

                                  3                         A-0934-16T1
an appropriate caretaker.        The children remained with the Cannons,

who have expressed an interest in adopting both children.

     The court initially rejected DCPP's plan for termination of

Nancy's and Roger's parental rights, and extended the time to

effect reunification.       When that was not successful, DCPP filed a

complaint seeking termination of their parental rights to both

children.    Following a twelve-day trial, Judge Yablonsky entered

judgment    on   October   13,   2016,       terminating   Nancy   and     Roger's

parental rights to the children.               Judge Yablonsky recited his

factual findings and legal conclusions in a memorandum of opinion.

     The court found that DCPP had proven by clear and convincing

evidence all four prongs codified in N.J.S.A. 30:40C-15.1(a),

which, in the best interests of the children, mandates termination

of parental rights.        In re Guardianship of K.H.O., 161 N.J. 337

(1999).     He found the testimony of DCPP's caseworkers to be

"credibl[e]" and "consistent with the [DCPP] record in this case."

     With respect to Nancy, the court found DCPP provided services

including "parenting classes, substance abuse treatment, anger

management classes, psychotherapy, and a psychiatric evaluation."

She obtained drug treatment and was successfully discharged but

relapsed within weeks.        Although she maintained sobriety at the

time of trial, based on expert testimony, she remained at risk to

                                         4                               A-0934-16T1
relapse because she did not "recognize her substance use as a

potentially dangerous factor in her ability to care for her

children."    She received psychotherapy because of the death of her

child.     She had supervised visitation with the children, but at

times she was "detached and elusive" toward them.

     Addressing Roger, the court found he did not attend any of

the required counseling services. He was referred to "sex-offender

specific therapy" but did not attend.              His visitation with the

children    was   "irregular"      and    he   showed   "[l]imited,   if    any,

affection    . . . at [those] visits."           He was discharged from the

visitation program for non-attendance.

     The    court   found   that    the      children's    safety,   health    or

development was endangered by the parental relationship with Roger

based on his "pattern of abandoning his children, non-engagement

in [DCPP] recommended services, and continued absence in multiple

visitation programs."        The DCPP called Dr. Robert Miller, a

psychologist, as an expert witness in parenting capacity and

bonding.     Dr. Miller opined that maintaining a relationship with

Roger posed an "increasing and unnecessary risk of harm" to the

children because he was unable or unwilling to remediate his

parental deficit.       Roger also was incarcerated at the time of

trial,   serving    a   four-year    sentence     for     third-degree   sexual

                                         5                            A-0934-16T1
assault    under    N.J.S.A.    2C:14-2(c)(4).3        As   a   convicted     sex

offender, Roger was required to comply with the registration

provisions of N.J.S.A. 2C:7-2(b), commonly known as Megan's Law,

and was subject to Parole Supervision for life, N.J.S.A. 2C:43-

6.4.4

        With respect to Nancy, the judge found that her continued

relationship would harm the children.           Quenton's teeth had decayed

under her care and the required tooth extractions affected his

speech.     The court found she remained "at risk for relapse" for

continued drug use.          The court noted that Nancy's pattern of

unstable relationships, involving domestic violence, exposed the

children to harm.          The court noted that two experts had opined

that Nancy was "not capable of safely parenting the minors now or

in the foreseeable future, indicating the health and safety of the

children would be put at risk if they were placed back in her

care."      The    court   found   she   had   not   overcome   her   parenting

deficits.



3
 An actor is guilty of sexual assault under N.J.S.A. 2C:14-2(c)(4)
where the victim is less than sixteen years old but older than
thirteen, and the actor is at least four years older than the
victim.
4
  Roger was also adjudicated delinquent in the Family Part as a
juvenile based on a sexual offense.

                                         6                            A-0934-16T1
     The court found that DCPP made reasonable efforts to help the

parents through the provision of services.            DCPP also "explored

. . . multiple relative placements."           With respect to Katie, she

was ruled out by DCPP "due to follow up allegations and reports

of abuse by the minors."         The court noted she had been indicted

on insurance fraud and was "facing significant jail time as well

as fines."     Her home would not be licensable by DCPP.

     The court found that termination of Nancy's and Roger's

parental rights would not do more harm than good to the children

based     on   the    experts'     testimony     concerning   the     bonding

evaluations.     All of the experts, including Nancy's, testified

that the children were securely attached to the Cannons.                 There

was testimony that the children were thriving with them.                    Dr.

Maureen    Santina,   Ph.D,   an   expert   in   psychology   and   bonding,

testified for the Law Guardian.        She and Dr. Miller testified that

the children would be harmed if they returned to Nancy or Roger

and that the resource parents were able to ameliorate any harm

caused by termination of parental rights.             Dr. Miller and Dr.

Santina found the children's attachment to Nancy to be insecure

or ambivalent. There was no bonding evaluation conducted involving

Roger and the children.       Roger does not contest the fourth prong

of the best interests test on appeal.

                                      7                             A-0934-16T1
     On appeal, Nancy does not dispute that DCPP provided services

to her to assist in remediating the causes of removal.    She does

not argue that the children should be in her care; rather, she

claims that she was prejudiced when the children were removed from

Katie's care and placed with the Cannons. Roger contends on appeal

that he was not offered appropriate services and that the evidence

was not sufficient to prove the first three prongs of the best

interests test.

      On appeal, our review of the judge's order terminating

parental rights is limited.   We defer to his expertise as a Family

Part judge, Cesare v. Cesare, 154 N.J. 394, 412 (1998), and are

bound by his factual findings provided they are supported by

sufficient credible evidence.   N.J. Div. of Youth & Family Servs.

v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of

J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).

      We conclude the factual findings of Judge Yablonsky are

fully supported by the record and agree with the legal conclusions

drawn therefrom.   He carefully considered the proofs, which show

that neither parent is capable of providing stable and adequate

care for the children now or in the near future.      Both parents

were offered appropriate services but either did not utilize them

or did not remediate the causes for removal of the children.       We

                                 8                        A-0934-16T1
agree that termination of Nancy's and Roger's parental rights to

Quenton and Mary is in the children's best interests and will help

the children achieve permanency with their resource parents.

     We briefly comment on their specific arguments.                We reject

Nancy's contention that the trial court erred by not conducting a

best interest hearing at some point earlier than the guardianship

trial on Katie's "rule out" as a placement option.                In N.J. Div.

of Youth and Family Servs. v. J.S., 433 N.J. Super. 69, 75 (App.

Div. 2013), certif. denied, 217 N.J. 587 (2014), we held that "the

Division's rule-out authority is always subject to the Family

Part's   ultimate   assessment   of       that   child's   best    interests."

Because "[t]he satisfaction of the rule-out criteria in N.J.S.A.

30:4C-12.1 is, in essence, just one element of the requirements

imposed by N.J.S.A. 30:4C-15.1(a)'s four-prong 'best interests'

test," id. at 85, there was no error by the court in considering

the issue as part of the guardianship trial.

     In addition, we find no error in the court's consideration

of Katie's pending criminal charges, where she faced jail time if

convicted. In making a best interests analysis, Judge Yablonsky

appropriately   took   into   consideration        Katie’s   predicament      in

determining the children's prospects for permanency.                N.J. Div.



                                      9                              A-0934-16T1
of Youth & Family Servs. v. L.M., 430 N.J. Super. 428, 450 (App.

Div. 2013).

       Nancy indicated that Quenton's claim of abuse was unsettled

and lacked evidential support.          We disagree.       The record is clear

that    those     allegations    were    made    to    multiple     individuals,

including   doctors,     therapists      and    DCPP   caseworkers.         It   was

entirely appropriate for the court to consider those allegations.

       We also disagree with Roger's contention that the court erred

because he was not offered services appropriate for his level of

cognitive abilities.       A DCPP representative testified that the

program to which he was referred would "get to know [their clients]

and know at what level to service them."               In any event, Roger did

not participate in the services offered.

       Finally,    we   reject   Roger's       contention    that     the    court

terminated his parental rights because he was incarcerated.                      See

N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 556

(2014) (holding that "incarceration alone—without particularized

evidence of how a parent's incarceration affects each prong of the

best-interests-of the-child-standard—-is an insufficient basis for

terminating parental rights.").              A fair reading of the judge's

opinion shows that the decision to terminate Roger's parental



                                        10                             A-0934-16T1
rights was firmly based on findings well beyond the fact of Roger's

incarceration.

     Affirmed.




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