DCPP VS. T.Y.F. AND A.D.R.IN THE MATTER OF THE GUARDIANSHIP OF T.H.S.F. AND T.S.F.(FG-07-129-16, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4727-15T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

T.Y.F.,

Defendant-Appellant,

and

A.D.R.,

Defendant.
________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF T.H.S.F. and T.S.F.,

Minors.
________________________________

Submitted April 5, 2017 – Decided May 30, 2017

Before Judges Alvarez and Manahan.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FG-07-129-16.

Joseph E. Krakora, Public Defender, attorney
for appellant (Durrell Wachtler Ciccia,
Designated Counsel, on the brief).
 Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Chanel
Van Dyke, Deputy Attorney General, on the
brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors T.H.S.F. and
T.F.S. (Lisa M. Black, Designated Counsel, on
the brief).

PER CURIAM

Defendant T.Y.F. appeals from the June 20, 2016 Family Part

order terminating his parental rights of his two daughters,

T.H.S.F. (Tara) and T.S.F. (Tia).1 Defendant contends the Division

of Child Protection and Permanency (the Division) failed to prove

the four prongs of the best interests standard of N.J.S.A. 30:4C-

15.1(a)(1)-(4) by clear and convincing evidence. The Law Guardian

joins with the Division in urging we affirm the judgment. A.D.R.

(Amy), the biological mother of Tara and Tia, gave a voluntary

identified surrender on the first day of the guardianship trial

and is not a party to this appeal. Based upon our review of the

record and applicable law, we are satisfied the evidence in favor

of the guardianship petition adequately supports the termination

of defendant's parental rights. See, e.g., N.J. Div. of Youth &

Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (holding that a

1
We utilize fictitious names for the parties and the children for
the purpose of confidentiality.

2 A-4727-15T2
reviewing court should uphold the factual findings respecting the

termination of parental rights if they are supported by substantial

and credible evidence in the record as a whole). Accordingly, we

affirm.

I.

We discern the following pertinent facts from the record.

Defendant and Amy are the biological parents of Tara and Tia. Tara

was born in September 2013. Tia was born in September 2014. On

October 24, 2013, the Division received a referral from a social

worker from the Department of Veteran Affairs (VA) reporting

concerns for Tara. The social worker reported that she smelled

marijuana when she visited defendant's home. At the time of the

referral, defendant was also on the phone, via three-way calling,

with the Division's screener and the VA social worker.

Later that day, a Division caseworker arrived at the family's

home. Defendant and Amy did not deny smoking marijuana in the

home. However, Amy denied smoking marijuana since being pregnant

and giving birth. Both defendant and Amy denied any other

substance abuse. Defendant advised that he was diagnosed with

3 A-4727-15T2
post-traumatic stress disorder (PTSD) in 2011, but did not comply

with the recommended treatment and self-medicates with marijuana.2

After an attempted suicide by overdose on painkillers in June

2012, defendant ceased taking his prescribed medication. He denied

currently having suicidal ideation. Defendant was previously

hospitalized in August 2011, for inpatient treatments related to

substance abuse and mental health issues, but failed to comply

with outpatient treatment as recommended. He reported receiving

therapy twice a week at the Veterans' Administration (VA) Hospital,

but stopped treatment around Tara's birth.

Defendant and Amy stated that defendant would care for Tara

when Amy returned to work and that he would only smoke when Tara

was asleep. In response, the caseworker informed them that

marijuana should never be used, as they are Tara's primary

caregivers, and warned of Tara's removal by the Division if the

marijuana use persisted. The caseworker concluded that there was

no evidence Tara was abused or neglected, but that the marijuana

use compromised Tara's well-being.

2
Defendant enlisted into the military in 2005. In 2007, while
deployed in Iraq, a bombing caused injuries to both legs, requiring
surgery. In 2008, defendant received a "Less than Honorable
Discharge" from the military, which was subsequently amended to
"General Under Honorable Conditions."

4 A-4727-15T2
 A few days later, the caseworker met with defendant and Amy

to advise them that their case was being transferred from the

Essex South Local Office to the Essex North Local Office due to

Amy's mother's, A.R. (Alice), employment at the Essex South Local

Office. The caseworker further stated that until all Division

assessments were completed, Tara could not be left alone with

defendant. Thus, another adult would have to be present in Amy's

absence to supervise.

On October 31, 2013, the investigating caseworker listened

to the original referral call and learned additional information

not provided by the screener in the referral summary. Thereafter,

the caseworker contacted Alice to elicit further information,

which included past domestic violence between defendant and Amy.

Alice stated she would be a resource for Tara if needed.

Subsequently, the caseworker visited defendant and Amy to

express the Division's concerns regarding defendant as a primary

caregiver to Tara due to his admitted daily marijuana use, mental

health issues, and possible domestic violence. The Division

scheduled Certified Alcohol and Drug Counselor (CADC) assessments

for both defendant and Amy, as well as a psychological evaluation

for defendant. Furthermore, the caseworker advised them that the

Division would be seeking guardianship of Tara. After discussing

the implementation of a safety protection plan, it was agreed upon

5 A-4727-15T2
that Amy and Tara would stay with a family friend until the issue

was addressed in court.

The next day, the caseworker made an unannounced visit to the

friend's home where Amy said they would be. As a result of that

visit, the caseworker learned that defendant and Amy had violated

the safety protection plan. An emergency Dodd removal, pursuant

to N.J.S.A. 9:6-8.29, was executed on November 1, 2013.3 Amy

consented to the removal; defendant was not home at the time. Tara

was placed with Alice.

On November 4, 2013, the Division filed a verified complaint

seeking custody, care and supervision of Tara.4 An order to show

cause (OTSC) hearing was held on the same day, at which time the

judge granted the Division custody of Tara due to the violation

of the safety protection plan. On the return date of the OTSC,

the judge held that Tara was to remain in the Division's custody.

Furthermore, both defendant and Amy were to comply with substance

abuse and psychological evaluations.5 Compliance hearings were

3
A Dodd removal is an emergency removal of a child which does not
require a court order. N.J. Div. of Youth & Family Servs. v.
P.W.R., 205 N.J. 17, 26 n.11 (2011) (citing N.J.S.A. 9:6-8.21 to
-8.82).
4
When the complaint was originally prepared, the Division sought
care and supervision of Tara. The complaint was amended to seek
custody of Tara as a result of the emergency Dodd removal.
5
At this time, Judge Ronald D. Wigler recused himself from the
case, as he had prosecuted defendant's sister in another matter,

6 A-4727-15T2
held on March 25, April 30, and July 16, 2014, during which the

provisions of the prior order were continued.

On three separate occasions in November 2013, defendant did

not attend his Division-arranged CADC assessment with Catholic

Charities, indicating that he preferred to be evaluated at the VA

Hospital and did not wish to duplicate services. Therefore,

Catholic Charities closed defendant's case.

Defendant began outpatient substance abuse treatment at the

VA Hospital where he received individual therapy, anger

management, and drug counseling. While defendant expressed an

interest in receiving inpatient treatment, the VA hospital staff

questioned his ability to participate in an inpatient treatment

program due to his inconsistent performance in outpatient

treatment. Notwithstanding, defendant was admitted to the VA

Hospital for completion of an inpatient substance abuse program,

which he completed on March 6, 2014. Defendant was then discharged

from a subsequent ninety-day outpatient program at the VA Hospital

due to erratic attendance.

who was named as a potential relative resource in this case. It
was later determined that she had violations which precluded
licensing and thus, she was not approved for placement. The
Division additionally assessed defendant's other sister as a
placement, but she eventually withdrew from consideration.

7 A-4727-15T2
 On May 9, 2014, defendant had a mental health screening at

the VA Hospital, which recommended that he receive PTSD treatment,

but not substance abuse treatment. Defendant also had a

psychiatric evaluation with Dr. Samiris Sostre on May 12, 2014.

During this evaluation, defendant disclosed that he would begin

psychiatric treatment at the VA Hospital for his PTSD. Dr. Sostre

recommended that defendant continue with PTSD treatment; continue

psychiatric treatment for mood instability, depression, and

anxiety; and manage his PTSD symptoms without illicit substances;

complete substance abuse treatment and maintain his sobriety; and

receive individual counseling.

In mid-September 2014, the Division received a referral

reporting concerns that Amy intended to give birth out-of-state

to avoid removal of the child. The Division then received another

referral stating Amy was scheduled for a cesarean section on

September 9, 2014, but did not go to the hospital and did not

return the doctor's calls. The reporter expressed further concerns

that Amy was using drugs and might be harming the baby by delaying

delivery, and that defendant was unstable.

The Division received a third referral on September 22, 2014,

from an employee at University Hospital reporting that Amy gave

birth to a healthy baby girl (Tia) on September 18, 2014, and was

discharged from the hospital. Shortly after Tia's birth, the

8 A-4727-15T2
Division executed an emergency Dodd removal and placed Tia in a

foster home on September 23, 2014. On September 24, 2014, the

Division filed an amended verified complaint for, and was

subsequently granted custody of Tia, as a result of defendant and

Amy's noncompliance with recommended services.

At this time, defendant and Amy were no longer presenting as

a couple and visitation proceeded through Family Connections–

Reunity House Program (Reunity House). A few days later, the

Division arranged a visit for defendant at the Division office

with Tia and Tara after he missed his visit at the Reunity House.

Defendant was eventually terminated from Reunity House in December

2014, due to his "pattern of inconsistency to visitations and

parenting skills" as he had attended three of thirteen scheduled

visits, five of nine parenting skills groups, and none of the two

individual parenting classes.

On October 15, 2014, the judge approved the Division's plan

of reunification of the children with either parent within three-

to-six-months because of their partial completion and agreement

to attend services required for reunification to occur. Further

permanency and compliance review hearings were held on January 15

and April 15, 2015. However, on April 15, defendant and Amy were

unable to adequately care for the children because neither had

stable housing. A permanency order was entered on July 30, 2015,

9 A-4727-15T2
finding that the Division's plan of termination of parental rights

followed by adoption of the children was appropriate. The judge,

in entering the order, noted:

[Amy] has unaddressed mental health and
substance abuse issues [and] . . . [defendant]
has unaddressed mental health and domestic
violence issues as a result of [their] non-
compliance with recommended services to date.
[Amy] and [defendant] also lack stable and
appropriate housing at this time, and
inconsistently visit the children. The
children who are currently residing with their
maternal grandmother, who is interested in
adopting the children, deserve permanency.

On the same day, the judge ordered defendant and Amy to be fully

compliant with all services.6

Between October 2014 and July 2015, defendant completed a

six-week curriculum of domestic violence services treatment at the

Men/Women for Peace Program at Babyland, which the Division had

shortened from twelve weeks. The Division also referred defendant

for individual counseling at the Family Center of Montclair.

Nonetheless, in January 2015, the Family Center of Montclair

advised the Division that defendant was non-compliant with PTSD

treatment after he attended only one session and missed five. In

February 2015, defendant was also terminated from intensive case

6
At this time, the judge also found Tara and Tia were not subject
to the Indian Child Welfare Act.

10 A-4727-15T2
management at the VA hospital after his Veteran's Section 8 Voucher

was revoked, effective November 2014.

II.

On January 29, 2015, Dr. Frank J. Dyer, Ph.D., issued a report

relating to the results of his psychological examination of

defendant and Amy, and separate bonding evaluations of Tara and

Tia with defendant, Amy and Alice. Dr. Dyer noted defendant denied

any recent use of marijuana. Further, Dr. Dyer observed that

defendant is "an individual of normal intelligence who is currently

free of mood disorder and is in satisfactory contact with reality,

but who maintains a stance of denial with respect to his

contribution to the situation of his children." Dr. Dyer diagnosed

defendant with chronic PTSD, depressive disorder, cannabis abuse

in sustained remission, and a personality disorder with paranoid

and schizotypal features.

Based on his observations during the psychological and

bonding evaluations, as well as his thorough review of the

Division's file, Dr. Dyer recommended the Division not consider

defendant as a viable candidate for custody of Tara and Tia. Dr.

Dyer opined that defendant's "psychological functioning is too

disorganized to permit him to appreciate the needs of a young

child or to respond appropriately to those needs. . . . The subject

has a great deal of trouble in putting the welfare of a child

11 A-4727-15T2
above his own on a consistent basis." Notwithstanding, Dr. Dyer

noted that the children had a positive connection with defendant

and it would be of significant benefit to both Tara and Tia to

have contact with both their parents.

Dr. Dyer submitted a supplemental report on May 31, 2016,

following his review of additional records. While Dr. Dyer did

not "opine on the ultimate legal issue of termination of parental

rights" he did "offer an opinion with reasonable psychological

certainty that continuing to pursue a case goal of resource home

adoption for [Tara] and [Tia] by their grandmother, [Alice], would

be an appropriate case goal."

Dr. Minerva C. Gabriel, Ph.D. conducted a psychological

evaluation of defendant on November 12 and 13, 2015, and February

6, 2016. Dr. Gabriel performed a bonding evaluation between

defendant and the children on February 17, 2016. Based upon her

assessments, Dr. Gabriel noted in her report dated February 25,

2016, that defendant could "provide proper parenting for his

daughters if he continues his counseling session and taking his

psychotropic medications." Thus, Dr. Gabriel recommended that

defendant should be awarded custody of the children.

On September 11, 2015, the judge entered an OTSC on the

guardianship complaint. Additional reviews were held on November

13 and December 16, 2015, and February 16 and March 16, 2016.

12 A-4727-15T2
 Prior to the start of the guardianship trial, Amy executed a

voluntary surrender of her parental rights to Tara and Tia to

Alice. The guardianship and permanency trial took place over two

days. Dr. Dyer and Tia Hurell, a Division caseworker, testified

on behalf of the Division. Defendant and Dr. Gabriel testified

on behalf of the defense.

Dr. Dyer testified consistently with his report. As to

defendant's substance abuse, Dr. Dyer testified that defendant "as

having continuing symptoms of PTSD, which means that there would

be further continuing motivation for him to resort to the substance

that, in his view, would prove to be the most effective agent for

relieving his symptoms." Dr. Dyer further noted, "the other

overshadowing issue is [defendant's] eccentric thinking processes

and his vulnerability to lapses in his contact with reality, which

also show up in his testing, and were evident behaviorally when

[I] observed him with the two children." As to defendant's

medications, Dr. Dyer stated, given his diagnosis, "it would be

critical for him to resume taking his medications with respect to

his ability to achieve adequate parenting capacity."

Dr. Dyer also testified as to defendant's bonding evaluation

with Tara and Tia, where he found the children did "have a degree

of positive connection to [defendant], but at the same time,

there's a great deal of ambivalence[.]" He further testified that

13 A-4727-15T2
while defendant and the children have a dysfunctional parent child-

dynamic, the children are emotionally invested and profoundly

attached to Alice. Moreover, Dr. Dyer testified that the

termination of defendant's parental rights would not be a "loss

that would rise to the level of anything that would cause serious

psychological harm or any kind of long lasting consequences to

these children." The judge found Dr. Dyer's testimony to be

extremely credible and well-grounded in his review of the record,

knowledge of the case, and psychological and bonding evaluations.

Next, Hurell testified as the custodian of records and current

adoption worker for the family. Adoption remained the Division's

goal in this case. Hurell testified that defendant currently

resides in a three-bedroom apartment that is in disarray, but

appropriate. Hurell described defendant as "up and down" because

sometimes he would be enthusiastic and sometimes "a little

agitated." She noted that defendant was inconsistent with his

compliance with services referred by the Division at the time of

the children's removal. This included individual therapy at the

Family Center of Montclair, domestic violence services at

Babyland, and couples counseling with Family Connections.

According to Hurell, the Division remained concerned with

defendant's noncompliance with VA Hospital services, such as his

PTSD services and medication monitoring. Hurell also testified

14 A-4727-15T2
that last time she received proof from defendant that he had

refilled his prescription was in December 2015.

As to visitation, Hurell testified that the Division

initially permitted defendant to have liberal visitation, where

either Alice or a family friend supervised the visits. However,

defendant was then referred to Reunity House, but was discharged

in December 2014, for noncompliance, and visitation was now held

at the Division office. Defendant's attendance continued to be

inconsistent and tardy. Although defendant engaged well with the

children, the Division remained concerned with his mental health

and substance abuse issues. Moreover, the Division does not

believe that defendant should be given more time to complete his

services and demonstrate his ability to maintain stability.

Hurell testified that under the Division's permanency plan,

Alice intends to adopt both Tara and Tia and there were no concerns

relating to Alice's relationship with her granddaughters. The

judge accepted Hurell's testimony as credible, concluding Alice

was doing "an excellent job in meeting the children's needs."

Defendant testified on his own behalf. Defendant conceded

that the last time he filled his prescription for the PTSD and

anxiety medications were six months earlier. He posited, however,

that he has never stopped taking his medications, as they are

prescribed on an "as-needed" basis. Defendant acknowledged his

15 A-4727-15T2
noncompliance with multiple VA services and his inconsistency with

visitation. On cross, defendant initially claimed that he

completed one parenting class at Reunity House, although the

records indicate that he never completed a parenting class.

Defendant also testified that at the time he was attending one-

on-one counseling.

Next, Dr. Gabriel testified and recommended that defendant's

parental rights not be terminated, although she recognized

defendant has a number of psychological issues for which he must

continue to seek treatment and take medication. Dr. Gabriel

stated, even though the children spend significantly more time

with Alice and it would be expected that their bonds would be

different, the children's bond with Alice was the same as their

bond with defendant. Finally, Dr. Gabriel recommended that

defendant's parental rights not be terminated and for the children

to continue to have contact with Alice.

On cross-examination, Dr. Gabriel testified that she had not

reviewed defendant's substance abuse records, VA records from

2011-16, Reunity House records, the Division's contact sheets or

police reports, but noted that a review of these records would

have been significant to her evaluation. Dr. Gabriel was also

unaware that defendant had not filled his prescriptions in six

months, of his history of housing instability, his failure to

16 A-4727-15T2
comply with outpatient treatment at the VA Hospital, and that he

never completed parenting classes or any services at Babyland. As

to her bonding evaluation, although she expected there to be a

difference in the level of bonding, Dr. Gabriel found a similar

bond to exist in the case of both defendant and Alice.

In an oral opinion, the judge determined the Division proved

all four prongs of N.J.S.A. 30:4C-15.1 by clear and convincing

evidence and entered a judgment of guardianship terminating the

parental rights of both defendant and Amy to Tara and Tia. While

the judge recognized defendant's affection for his two daughters,

he found defendant's failure to comply and be consistent with

services and visitation demonstrated his inability to parent.

Finding Dr. Dyer's evaluation to be more credible than Dr.

Gabriel's, the judge further found that defendant has "severe

emotional, behavioral, and personality issues that prevent him

from parenting at this particular point in time." The judge found

that Dr. Gabriel did not do "as comprehensive of a job in looking

at records and reviewing and interviewing [defendant]."

The judge further found defendant required "a couple years

of serious treatment and commitment on his part, which we haven’t

seen for the last three years, for him . . . to care for these

children. . . . [T]here's no indication at this particular point

that this is going to happen in the foreseeable future."

17 A-4727-15T2
 Further, the judge found the Division made reasonable efforts

to provide services to defendant but that he was non-compliant.

The judge further noted that although Tara and Tia had a

relationship with defendant, it was limited. The judge found the

children had bonded with Alice and any harm as a result of the

termination of parental rights could be mitigated. A judgment of

guardianship and termination was entered.

III.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT INCORRECTLY APPLIED THE LEGAL
PRINCIPLES GOVERNING TERMINATION OF PARENTAL
RIGHTS MATTERS TO THE FACTS. THE RECORD FALLS
SHORT OF SATISFYING THOSE EXACTING STANDARDS
AND THEREFORE TERMINATION OF DEFENDANT'S
PARENTAL RIGHTS SHOULD NOT BE AFFIRMED.

A. The Trial Court Incorrectly
Applied the Legal Principles
Developed Under N.J.S.A. 30:4C-
15.1(a)(1) and N.J.S.A. 30:4C-
15.1(a)(2) to the Facts.
Insufficient Evidence was Produced
to Conclude That [Defendant] Was
Unable or Unwilling to Meet his
Children's Need For Permanency.

B. The Trial Court's Legal
Conclusion that the Third Prong Of
N.J.S.A. 30:4C-15.1(a)(3) was
Satisfied at a Clear and Convincing
Level of Proof was Not Supported by
Evidence in the Record.

18 A-4727-15T2
 C. Termination Of Parental Rights
Will Do More Harm Than Good.

POINT II

THE JUDGMENT TERMINATING [DEFENDANT'S]
PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE
TRIAL COURT'S CONDUCT OF THE CASE DEPRIVED
DEFENDANT OF THE LEVEL OF DUE PROCESS AND
"FUNDAMENTAL FAIRNESS" THAT NEW JERSEY LAW
REQUIRES IN DCPP MATTERS. (NOT RAISED BELOW)

The scope of review of a Family Part judge's termination of

parental rights is limited. N.J. Div. of Youth & Family Servs.

v. R.G., 217 N.J. 527, 552 (2014); M.M., supra, 189 N.J. at 278.

A judge's findings may not be disturbed unless they are "so

manifestly unsupported by or inconsistent with the competent,

relevant and reasonably credible evidence as to offend the

interests of justice." Rova Farms Resort, Inc. v. Investors Ins.

Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted); see also

N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511

(2004). "A reviewing court should uphold the factual findings

undergirding the trial court's decision if they are supported by

'adequate, substantial and credible evidence' on the record."

M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T.,

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

As a general rule, an appellate court should also defer to

the judge's credibility determinations. Ibid. Such deference is

appropriate because the trial judge has a feel for the case and

19 A-4727-15T2
"the opportunity to make first-hand credibility judgments about

the witnesses who appear on the stand[.]" N.J. Div. of Youth &

Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M.,

supra, 189 N.J. at 293. The trial court is best suited to assess

credibility, weigh testimony, and develop a feel for the case.

N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342

(2010). Special deference is accorded to the Family Part's

expertise. Id. at 343; Cesare v. Cesare, 154 N.J. 394, 413 (1998).

"Where the focus of the dispute is . . . alleged error in the

trial judge's evaluation of the underlying facts and the

implications to be drawn therefrom, the traditional scope of review

is expanded." J.T., supra, 269 N.J. Super. at 188-89 (internal

quotation marks omitted); see also, N.J. Div. of Youth & Family

Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is still

appropriate even in that circumstance "unless the trial court's

findings 'went so wide of the mark that a mistake must have been

made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty,

Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.),

certif. denied, 117 N.J. 165 (1989)).

Nevertheless, the trial judge's legal conclusions, and the

application of those conclusions to the facts, are subject to

plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995). We need not defer to the trial court's

20 A-4727-15T2
legal conclusions reached from the established facts. See State

v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts

under a misconception of the applicable law," we need not defer

to its ruling. Ibid.; see also N.J. Div. of Youth & Family Servs.

v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied,

190 N.J. 257 (2007).

Parents have a constitutionally protected right to enjoy a

relationship with their children. E.P., supra, 196 N.J. at 102;

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

standards have consistently been imposed in the termination of

parental rights. K.H.O., supra, 161 N.J. at 347. Termination of

parental rights is considered an "extreme form of action," E.P.,

supra, 196 N.J. at 102, and "a weapon of last resort in the arsenal

of state power." N.J. Div. of Youth and Family Servs. v. F.M.,

211 N.J. 420, 447 (2012). To balance the parents' constitutional

rights against potential harm to the child, when applying for

guardianship, the Division must institute "a termination

proceeding when such action would be in the best interest of the

child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546,

557 (1994).

The Supreme Court first articulated the best interests

standard in N.J. Div. of Youth & Family Srvs. v. A.W., 103 N.J.

591, 602-11 (1986). The Legislature subsequently amended Title

21 A-4727-15T2
30 in 1991 to conform to the court's holding in A.W., codifying

the standard at N.J.S.A. 30:4C-15.1(a). The statute provides that

the Division must prove:

(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 factors are not independent of each other; rather,

The "prongs are not discreet and separate," but overlap with each

other. N.J. Div. of Youth & Family Srvs. v. I.S., 202 N.J. 145,

167 (2010) (quoting N.J. Div. of Youth & Family Srvs. v. G.L., 191

N.J. 596, 606-07 (2007)). "The considerations involved in

determinations of parental fitness are 'extremely fact sensitive'

and require particularized evidence that address the specific

22 A-4727-15T2
circumstances in the given case." K.H.O., supra, 161 N.J. at 348

(1999) (quoting In re Adoption of Children by L.A.S., 134 N.J.

127, 139 (1993)).

The burden of proof is on the Division to establish its case

by a clear and convincing evidence standard. Ibid.; In re

Guardianship of J.N.H., 172 N.J. 440, 464 (2002); see also F.M.,

supra, 211 N.J. at 447-48 (citation omitted); P.P., supra, 180

N.J. at 511 ("On appeal, a reviewing court must determine whether

a trial court's decision in respect of termination of parental

rights was based on clear and convincing evidence supported by the

record before the court.").

The first two prongs of the best interest standard, N.J.S.A.

30:4C-15.1(a)(1) and (2), are related "components of the harm

requirement," and "evidence that supports one informs and may

support the other as part of the comprehensive basis for

determining the best interests of the child." In re Guardianship

of D.M.H., 161 N.J. 365, 379 (1999). Because here, the first two

prongs of N.J.S.A. 30:4C-15.1(a) are factually intertwined, we

"address prongs one and two of that test" together. See E.P.,

supra, 196 N.J. at 104.

Under the first prong of the best interests standard, the

Division must prove by clear and convincing evidence that "[t]he

child's safety, health or development has been or will continue

23 A-4727-15T2
to be endangered by the parental relationship." N.J.S.A. 30:4C-

15.1(a)(1). "The harm shown . . . must be one that threatens the

child's health and will likely have continuing deleterious effects

on the child." K.H.O., supra, 161 N.J. at 352. "The potential

return of a child to a parent may be so injurious that it would

bar such an alternative." A.W., supra, 103 N.J. at 605.

The absence of physical abuse or neglect is not conclusive

and serious emotional and developmental injury should be regarded

as injury to the child. Ibid. Moreover, trial courts must

consider the potential psychological damage of reunification with

a parent. Ibid. "[T]he psychological aspect of parenthood is

more important in terms of the development of the child and its

mental and emotional health than the coincidence of biological or

natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977); see

also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("Serious

and lasting emotional or psychological harm to children as the

result of the action or inaction of their biological parents can

constitute injury sufficient to authorize the termination of

parental rights."); D.M.H., supra, 161 N.J. at 379 ("A parent's

withdrawal of that solicitude, nurture, and care for an extended

period of time is in itself a harm that endangers the health and

development of the child.").

24 A-4727-15T2
 The second prong focuses on parental unfitness and overlaps

with the proofs supporting the first prong. D.M.H., supra, 161

N.J. at 379. A trial court is required to determine whether it

is "reasonably foreseeable that the parents can cease to inflict

harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and

no less is required of them than that they will not place their

children in substantial jeopardy to physical or mental health."

Ibid. This prong may be satisfied "by indications of parental

dereliction and irresponsibility, such as the parent's continued

or recurrent drug abuse, the inability to provide a stable and

protective home, [and] the withholding of parental attention and

care . . . with the resultant neglect and lack of nurture for the

child." K.H.O., supra, 161 N.J. at 353. This harm includes

"evidence that separating the child from his resource family

parents would cause serious and enduring emotional or

psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2).

Defendant argues that no objective evidence was submitted

as to the level of harm defendant's marijuana use had on Tara and

Tia. In reply, the Division argues that the judge's primary

concern with defendant was not his cannabis dependency, but rather

his noncompliance with services and his inconsistency with his

PTSD medications. Additionally, defendant contends that the judge

failed to make explicit, individualized findings as to prongs one

25 A-4727-15T2
and two of the best interest test, and this is the result of the

Division's failure to provide clear and convincing evidence.

There is ample support demonstrating the Division satisfied

its burden under N.J.S.A. 30:4C-15.1(a)(1) and (2).7 The judge

noted that the case was three years old, and defendant had not

been compliant with his prescribed medications for PTSD.

Moreover, defendant's evaluations indicated that he needed to be

appropriately taking his medications; which, despite defendant’s

position, were not prescribed on an "as-needed basis."

In reaching our determination, we do not overlook or minimize

defendant’s continuous use of marijuana as playing a role in the

determination of risk. Our Supreme Court has acknowledged that

ongoing and un-rehabilitated drug use can be harmful to children.

K.H.O., supra, 161 N.J. at 363 (stating that a parent's inability

to overcome his or her own addiction to care for a child

constitutes the endangerment of that child).

Although the focus of the judge’s findings of present and

continued harm was upon defendant's inability to treat his PTSD

7
Notwithstanding, we note that the judge's findings relative to
the first and second prongs were general rather than
particularized. The judge's reliance on the proofs in the record,
without more, might have required a remand for additional fact
finding had the record not been replete with steps taken by the
Division toward reunification and defendant's consistent
noncompliance with Division services.

26 A-4727-15T2
and comply with VA services, defendant's cannabis dependence, even

in remission, is an appropriate consideration whether his

parenting posed a substantial risk of harm to Tara and Tia.

"Courts need not wait to act until a child is actually

irreparably impaired by parental inattention or neglect." D.M.H.,

supra, 161 N.J. at 383 (citing A.W., supra, 103 N.J. at 616 n.14).

Even were we to not consider the cannabis abuse of defendant, by

his not adhering to the safety protection plan and by his

consistently failing to comply with services, he exposed Tara and

Tia to imminent danger. See ibid.

Under the third prong of the best interests standard, the

Division must make "reasonable efforts to provide services to help

the parent correct the circumstances" that necessitated removal

and placement of the child in foster case. N.J.S.A. 30:4C-

15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts"

may include parental consultation, plans for reunification,

services essential to achieving reunification, notice to the

family of the child's progress, and visitation facilitation.

N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and

circumstances of each case. D.M.H., supra, 161 N.J. at 390. The

services provided to meet the child's need for permanency and the

parent's right to reunification must be "coordinated" and must

have a "realistic potential" to succeed. N.J. Div. of Youth &

27 A-4727-15T2
Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div.

2002) (quoting N.J.A.C. 10:133-1.3).

Despite the fact that the Division offered numerous services

to defendant and attempted to facilitate reunification, the record

demonstrates, as the judge found, defendant failed to be consistent

with the services provided to him. The Division is not obligated

to make continued efforts to provide services to individuals who

refuse to engage. A.W., supra, 103 N.J. at 610. Defendant

displayed a consistent refusal to complete services and learn from

the services when he did attend, despite the Division's attempts

at providing services aimed at reunification. Importantly, this

court held in I.H.C., supra, 415 N.J. Super. at 576, that a

parent's past conduct is relevant in determining his or her future

conduct.

Here, there is sufficient credible evidence in the record

supporting that "reasonable efforts" were made by the Division for

reunification. We are satisfied from our review of the record

that the Division presented clear and convincing evidence to

satisfy the third prong.

We next address the fourth statutory prong requiring the

court to determine "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

28 A-4727-15T2
permanent disruption of her relationship with her foster parents."

K.H.O., supra, 161 N.J. at 355. The overriding consideration for

this prong is the child's need for permanency and stability. Id.

at 357. If a child can be returned to the parental home without

endangering the child's health and safety, the parent's right to

reunification takes precedence over the permanency plan. Ibid.;

A.W., supra, 103 N.J. at 607-09. The mere fact of a bond with the

foster parent does not alone justify the termination of parental

rights. K.L.F., supra, 129 N.J. at 44-45.

In meeting the fourth prong, the Division should adduce

testimony from a "well qualified expert who has had full

opportunity to make a comprehensive, objective, and informed

evaluation" of the child's relationship with the natural and foster

parents. In re Guardianship of J.C., 129 N.J. 1, 19 (1992).

"[T]ermination of parental rights likely will not do more harm

than good" where the child has bonded with foster parents in a

nurturing and safe home. E.P., supra, 196 N.J. at 108 (citations

omitted). Yet, "the Division must show 'that separating the child

from his or her foster parents would cause serious and enduring

emotional or psychological harm.'" Ibid. (quoting J.C., supra,

129 N.J. at 19).

Dr. Dyer noted that "[i]t is clear that [Tara] and [Tina]

are profoundly attached to their grandmother. If they were removed

29 A-4727-15T2
from her care, both children would suffer a painful and

disorienting loss." As this court has held, children should not

"languish indefinitely" in an out-of-home placement while a parent

attempts to correct his or her parenting problems. N.J. Div. of

Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209 (App.

Div.), certif. denied, 192 N.J. 293 (2007) (citation omitted).

The children have been living with their grandmother since infancy;

a resource placement that was stable, secure, and loving. See In

re Guardianship of J.E.D., 217 N.J. Super. 1, 17 (App. Div. 1987),

certif. denied, 111 N.J. 637 (1988) (stating that when a resource

parent wishes to adopt, an influential factor is introduced into

the best interests analysis). We are satisfied that the judge’s

conclusion that terminating parental rights to free the children

for adoption would not do more harm than good finds support in

the record.

Finally, defendant argues that by failing to change venue due

to Alice's "conflict of interest" as a DCPP caseworker, and due

to a judicial conflict posed by a (recused) judge's former

prosecution of defendant's sister, the proceedings were

"fundamentally unfair." Having considered this argument in light

of the record, we conclude it is without sufficient merit to

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

30 A-4727-15T2
 In sum, the evidence in favor of the guardianship petition

adequately supported the termination of defendant's parental

rights. See, e.g., M.M., supra, 189 N.J. at 279 (stating that a

reviewing court should uphold the factual findings respecting the

termination of parental rights if they are supported by substantial

and credible evidence in the record as a whole).

Affirmed.

31 A-4727-15T2