DCPP VS. R.J. IN THE MATTER OF THE GUARDIANSHIP OF H.H.H.(FG-16-0088-16, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-3202-16T4

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

R.J.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF H.H.H.,

Minor.
___________________________________

Argued October 31, 2017 – Decided November 28, 2017

Before Judges Yannotti, Carroll, and Mawla.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic
County, Docket No. FG-16-0088-16.

Bruce P. Lee, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Mr. Lee, on the briefs).

Viviane Sullivan, Deputy Attorney General,
argued the cause for respondent (Christopher
 S. Porrino, Attorney General, attorney; Jason
Rockwell, Assistant Attorney General, of
counsel; Ms. Sullivan, on the brief).

Christopher A. Huling, Designated Counsel,
argued the cause for minor (Joseph E. Krakora,
Public Defender, Law Guardian, attorney; Mr.
Huling, on the brief).

PER CURIAM

Defendant R.J. ("Richard")1 appeals from a March 15, 2017

judgment terminating his parental rights to H.H.H. ("Harold").

For the reasons that follow, we affirm.

I.

The following facts are taken from the record. The New Jersey

Division of Child Protection and Permanency (Division) has been

involved in this matter since Harold's mother, T.H. ("Tiffany"),

was nine months pregnant.

Tiffany struggled with substance abuse problems.

Specifically, she used cocaine, benzodiazepines, and heroin during

her pregnancy. She had participated in a methadone treatment drug

program since July 2011, but had limited success.

Tiffany gave birth to Harold in February 2012. However,

because she tested positive for opiates, cocaine, and

benzodiazepines eight days earlier, a hospital worker made a

1
We use pseudonyms or initials to protect the child and the
parties' privacy.

2 A-3202-16T4
referral to the Division. When the Division case worker met with

Tiffany in the hospital, the case worker inquired about the baby's

father. Tiffany stated she was unsure who the father was, but

thought it could be either "Sugar" or "Thunder." Tiffany did not

know their real names or addresses.

Harold was not discharged from the hospital because he was

experiencing withdrawal symptoms. Tiffany was discharged and

entered into another counseling and substance abuse program. As

a result, the court granted the Division custody of Harold.

Tiffany and Harold were reunited because she was complying

with treatment, but the reunification was short-lived. A second

removal occurred on April 15, 2013, after Tiffany tested positive

for opiates. At the time of the second removal, Richard had been

living with Tiffany. However, Tiffany maintained she did not know

the identity of Harold's biological father, and that he was not

involved in the child's life.

One year later, Tiffany continued to struggle with substance

abuse. Therefore, the Division continued to inquire about the

child's father. Tiffany insisted she did not know who the father

was. When asked specifically if Richard was the father, Tiffany

stated he was not, but that Richard had "been a major part of

[Harold's] life [and] fits the role of his father."

3 A-3202-16T4
 A third removal occurred on April 29, 2014, when Tiffany was

incarcerated for prostitution and drug possession. Harold was

placed in a resource home. For the first time, Tiffany stated

Richard was Harold's biological father.

On May 16, 2014, Harold was moved to K.M.'s home. K.M. was

a family friend who knew Harold from his daycare center. The

Division also contacted the paternal grandmother as a potential

resource placement for Harold, but she informed the Division she

was unable to care for him due to her and her husband's health.

The paternal grandmother stated she had another son who may be

interested, but he and his wife were busy.

Tiffany was released from jail on May 20, 2014, but was

arrested again on June 3, 2014. Harold remained in K.M.'s care

until December 1, 2014, when the court granted Tiffany physical

custody on the condition she remain at and complete the mommy-and-

me program and attend a psychological evaluation. Later that

month, Tiffany indicated she wanted to leave the program to pursue

a culinary arts program. In the following months, Tiffany

experienced numerous relapses, and Harold was once again removed

from her care on October 23, 2015, and again placed with K.M.

After Tiffany informed the Division Richard was the father,

the Division attempted to locate him. The paternal grandmother

4 A-3202-16T4
was unaware of his whereabouts, but stated he was abusing drugs.

Tiffany corroborated this claim, stating Richard abused heroin.

On February 17, 2015, the caseworker located Richard and

reported that he wished to attend the next scheduled court

proceeding. However, on April 14, 2015, a caseworker visited

Richard who would not open his front door completely, and indicated

he would not attend the next court date. The caseworker served

Richard with the complaint and court ordered paternity test.

Richard indicated he would comply with the test and also

acknowledged paternity.

A paternity test was scheduled for July 6, 2015, but Richard

failed to appear. Another test was rescheduled for August 3,

2015, but again Richard failed to appear despite a call from a

caseworker reminding him of the appointment. The paternity test

was rescheduled again for November 13, 2015; however, the Division

learned Richard was incarcerated on November 12, 2015. As a

result, the caseworker visited Richard in jail on November 24,

2015, and provided him with the most recent court order. Richard

agreed to comply with the paternity testing, which occurred on

December 1, 2015, and confirmed he was Harold's father.

Richard was released on December 15, 2015. That same day the

paternal grandmother reported finding Richard lying on the floor

5 A-3202-16T4
of her home gurgling and under the influence of a substance. She

called an ambulance, but Richard refused medical attention.

On January 4, 2016, the Division assessed the paternal

grandmother's home as a possible placement for Harold since Richard

had been living there at the time. However, the Division ruled

out the paternal grandmother as a potential placement for Harold

because her home did not meet licensing standards, and she

indicated she needed Richard's help to care for her husband, who

was ill and had limited mobility. After the paternal grandmother's

husband passed away, she sought to be reevaluated as a potential

placement, but when the caseworker visited her she withdrew her

request.

The Division also investigated M.G., the mother of Richard's

other two children, as a placement option. However, a

psychological evaluation of M.G. concluded she was not a suitable

caregiver for Harold, and that he should not be removed from his

resource parent.

During this time, Richard had been offered visitation with

Harold, but had not responded or requested any visits. When the

Division inquired why Richard did not exercise visitation, he

claimed he did not have a driver's license. The Division offered

Richard bus passes and encouraged him to visit Harold, but Richard

6 A-3202-16T4
attended only two visits, one each in January 2016 and February

2016.

In addition to exploring relative placements and offering

visitation, the Division referred Richard to participate in a

substance abuse assessment. Richard was notified of the

evaluation, which was scheduled for January 28, 2016, but he failed

to attend. The Division scheduled seven more substance abuse

assessments for Richard between February and August 2016 — all of

which he failed to attend.

In addition, Richard was scheduled for a psychological

evaluation with Robert Miller, Ph.D. Richard received written

notice of the evaluation, but failed to attend.

On August 22, 2016, Richard provided a urine sample and tested

positive for methadone, opiates, cocaine, and benzodiazepines.

Richard was tested seven more times between September 6, 2016 and

October 17, 2016, and tested positive for opiates and cocaine on

six of the dates and benzodiazepines on one date. Richard tested

positive for opiates again on three separate occasions in October

2016 and November 2016, respectively. In December 2016, Richard

tested positive for opiates, cocaine, and benzodiazepines.

Dr. Robert Kanen conducted a psychological evaluation of

Richard on behalf of the Division, which included a clinical

interview, and administering the Wechsler Adult Intelligence Scale

7 A-3202-16T4
(WAIS-V) and the Millon Clinical Multiaxial Inventory-III (MCMI-

III). Dr. Kanen found Richard had borderline intelligence, which

would pose a challenge in his daily life and likely make difficult

his ability to support himself and Harold. In addition, Dr. Kanen

noted Richard had longstanding personality problems, including

self-centeredness, indifference to the needs of others, and

deficits in coping with the demands of daily life. Dr. Kanen

concluded, "[Richard] is not likely to be able to provide [Harold]

with a permanent, safe, and secure home now or in the foreseeable

future. He is likely to expect others to take over his parental

responsibilities" and "[h]is child . . . does not know him as a

predictable, consistent and reliable caretaker." Therefore, Dr.

Kanen did not recommend Harold be placed in Richard's care.

The bonding evaluation Dr. Kanen performed between Richard

and Harold demonstrated there was no bond. Dr. Kanen concluded

Harold would not likely suffer serious or enduring harm if

permanently separated from Richard.

The guardianship trial occurred on January 31, and February

1, 2017.2 The only testimony presented was on behalf of the

Division, which offered testimony from Dr. Kanen, Jennifer Zajonc,

a Division caseworker, and Jorge Flaconi, a Division adoption

2
Tiffany provided an identified surrender of parental rights
regarding Harold to K.M. on December 2, 2016.

8 A-3202-16T4
caseworker. The trial judge issued a written opinion on March 15,

2017, terminating Richard's parental rights.

The judge found the Division had proven all four prongs of

the best interests test by clear and convincing evidence. As to

the first prong, the judge found Richard was not meaningfully

involved in Harold's life, failed to maintain stable, independent

housing, and as an active substance abuser, continued to place

Harold at risk of harm. As to the second prong, the judge concluded

Richard was unwilling to remediate the harm. He found Richard

intentionally delayed his paternity testing, and noted his lack

of attendance for drug screenings and substance abuse assessments,

as well as his inconsistent exercise of visitation.

Regarding the third prong, the judge found Richard had failed

to comply with the Division's attempts to provide substance abuse

treatment and services, and recounted the court's consideration

of alternatives to termination concluding adoption is both

feasible and likely, and would provide Harold with the greatest

degree of permanency. As to the fourth prong, the judge found

Richard would likely be unable to provide Harold with a permanent,

safe and secure home for the foreseeable future, and Harold would

not suffer serious and enduring harm if permanently separated from

Richard. This appeal followed.

9 A-3202-16T4
 II.

The scope of our review on an appeal from an order terminating

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

v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of

J.N.H., 172 N.J. 440, 472 (2002)). We will uphold a trial judge's

factfindings if they are "supported by adequate, substantial, and

credible evidence." N.J. Div. of Youth & Family Servs. v. R.G.,

217 N.J. 527, 552 (2014) (citing N.J. Div. of Youth & Family Servs.

v. E.P., 196 N.J. 88, 104 (2008)). No deference is given to the

court's "interpretation of the law" which is reviewed de novo.

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

Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010); Balsamides

v. Protameen Chems., 160 N.J. 352, 372 (1999)).

"We accord deference to factfindings of the family court

because it has the superior ability to gauge the credibility of

the witnesses who testify before it and because it possesses

special expertise in matters related to the family." N.J. Div.

of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2014) (citing

Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Only when the trial

court's conclusions are so 'clearly mistaken' or 'wide of the

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

to ensure that there is not a denial of justice." E.P., 196 N.J.

at 104 (quoting G.L., 191 N.J. at 605). We also accord deference

10 A-3202-16T4
to the judge's credibility determinations "based upon his or her

opportunity to see and hear the witnesses." N.J. Div. of Youth &

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

(citing Cesare, 154 N.J. at 411-13).

When terminating parental rights, the court focuses on the

"best interests of the child standard" and may grant a petition

when the four prongs set forth in N.J.S.A. 30:4C-15.1(a) are

established by clear and convincing evidence. In re Guardianship

of K.H.O., 161 N.J. 337, 347-48 (1999). "The four criteria

enumerated in the best interests standard are not discrete and

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

a comprehensive standard that identifies a child's best

interests." Id. at 348.

III.

Richard argues the trial judge erred by denying him the

opportunity to hire a private attorney. On the first day of trial,

Richard appeared with assigned counsel and informed the trial

judge he wished to seek private counsel. He claimed his assigned

counsel was unable to represent him effectively.

The trial judge inquired if Richard was able to afford a

private attorney, and Richard replied his brother would pay for

the attorney. The judge then inquired whether Richard had spoken

to an attorney and Richard conceded he had not. The judge denied

11 A-3202-16T4
Richard's request reasoning that a lengthy delay had already

occurred "with respect to the resolution of permanency and

stability for the child," which outweighed Richard's request to

begin a search for private counsel.

On appeal, Richard argues the trial judge's decision to deny

an adjournment was an abuse of discretion under State v. Kates,

426 N.J. Super. 32, 45 (App. Div. 2012), because the court failed

to undertake "an intensely fact-sensitive inquiry." Richard

argues the judge erred by failing to inquire whether his current

counsel was "prepared to provide effective representation, and if

she was, what her expectations were for how much time a new

attorney would need to prepare."

We review a trial judge's denial of an adjournment request

under an abuse of discretion standard. State v. Ferguson, 198

N.J. Super. 395, 402 (App. Div. 1985). A reversal is not warranted

unless we determine: 1) whether the judicial ruling was "clearly

unreasonable in the light of the accompanying and surrounding

circumstances," and 2) whether a defendant was prejudiced by the

denied adjournment request. State v. Miller, 216 N.J. 40, 66-67

(2013). Prejudice is established when a "defendant suffer[s]

manifest wrong or injury." Id. at 67. When a litigant seeks an

adjournment to retain new counsel, we have stated:

12 A-3202-16T4
 Some of the factors to be considered in the
balance include: the length of the requested
delay; whether other continuances have been
requested and granted; the balanced
convenience or inconvenience to the litigants,
witnesses, counsel, and the court; whether the
requested delay is for legitimate reasons, or
whether it is dilatory, purposeful, or
contrived; whether the defendant contributed
to the circumstance which gives rise to the
request for a continuance; whether the
defendant has other competent counsel prepared
to try the case, including the consideration
of whether the counsel was retained as lead
or associate counsel; whether denying the
continuance will result in identifiable
prejudice to defendant's case, and if so,
whether this prejudice is of a material or
substantial nature; the complexity of the
case; and other relevant factors which may
appear in the context of any particular case.

[State v. Kates, 426 N.J. Super. 32, 46 (App.
Div. 2012) (quoting State v. Hayes, 205 N.J.
522, 538 (2011))].

Here, there is no evidence the trial judge abused his

discretion by denying Richard's request to delay trial to pursue

private counsel. First, Richard provided no legitimate reasons

for needing new counsel. He baldly claimed he wanted a private

attorney because he felt his current counsel could not adequately

represent him without providing any specific reason. His brief

on appeal also does not substantively address the Kates factors

to convince us the trial judge erred by refusing to delay the

trial. No objective evidence is asserted demonstrating trial

counsel was unprepared or otherwise ineffective. The record lacks

13 A-3202-16T4
evidence of prejudice to Richard due to the denial of his

adjournment request.

Second, the record demonstrates the trial judge balanced

Richard's request against Harold's right to permanency. Regarding

permanency, the Supreme Court has stated there are "strong policy

considerations that underscore the need to secure permanency and

stability for the child without undue delay." In re Guardianship

of DMH, 161 N.J. 365, 385-86 (1999). N.J.S.A. 30:4C-15(d) provides

that permanency must be achieved within a period of one year from

removal where a parent has failed to remedy the conditions causing

the removal. Therefore, the trial judge's decision to deny

Richard's request for a continuance was not an abuse of discretion

considering Harold had been in placement with K.M. since November

2015, and in excess of one year.

IV.

Richard challenges the trial judge's findings on the first

prong of the best interests standard. This prong requires the

Division to establish that "[t]he child's safety, health, or

development has been or will continue to be endangered by the

parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "[T]he

Division must prove harm that 'threatens the child's health and

will likely have continuing deleterious effects on the child.'"

14 A-3202-16T4
N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 25 (2013)

(quoting K.H.O., 161 N.J. at 352).

Richard argues Dr. Kanen's report and testimony were

"impermissible net opinion[s]" pursuant to Davis v. Brickman

Landscaping, Ltd., 219 N.J. 395, 410 (2014), because he relied on

an intelligence assessment which "lack[s] psychological

certainty." He argues the assessment was faulty because it

contained inherent contradictions finding Richard had borderline

intelligence, yet he managed to maintain gainful employment.

Richard also argues the test results were invalid because Dr.

Kanen reported Richard was under the influence when the testing

was administered. We find these arguments lack merit.

The exclusion of net opinions is "a prohibition against

speculative testimony." Grzanka v. Pfeifer, 301 N.J. Super. 563,

580 (App. Div. 1997). Therefore, the expert's conclusions must

be based on "(1) the expert's personal observations, or (2)

evidence admitted at trial, or (3) data relied upon by the expert

which is not necessarily admissible in evidence but which is the

type of data normally relied upon by experts in forming opinions

on the same subject." Davis, 219 N.J. at 410 (citation omitted).

In other words, "experts generally [] must be able to identify the

factual bases for their conclusions, explain their methodology,

and demonstrate that both the factual bases and the methodology

15 A-3202-16T4
are scientifically reliable." Landrigan v. Celotex Corp., 127

N.J. 404, 417 (1992).

Here, Dr. Kanen's evaluation included a clinical interview,

the WAIS-V and MCMI-III tests, a bonding evaluation between Richard

and Harold, and a review of the Division's records. There is no

evidence Dr. Kanen relied on any information outside of his

observations or outside of the record to formulate his opinion.

As the trial judge noted:

Dr. Kanen . . . administered standard
psychological intelligence testing to
[Richard]. Dr. Kanen took pains to point out
[Richard's] parenting deficits in his written
evaluation. Dr. Kanen reported that
[Richard's] verbal comprehension index was
below 98% of the general population and . . .
[h]is perceptual reasoning index was below 92%
of the general population . . . [h]is
estimated full scale IQ was 74, which is in
the borderline range and below 96% of its
general population. Dr. Kanen opined that at
this level of cognitive ability daily life is
likely to be a challenge for him; he is likely
to have difficulty independently supporting
even himself and thus the child as well. He
has a history of unstable housing, [and]
difficulty functioning in daily life.

The record demonstrates Dr. Kanen drew his conclusions regarding

Richard's intelligence and daily cognitive abilities from the

results of the WAIS-V and MCMI-III tests. Richard's ability to

maintain employment was not mutually exclusive of his lengthy

history of unstable housing and substance abuse, or the

16 A-3202-16T4
characteristics Dr. Kanen associated with borderline intelligence.

Dr. Kanen's opinion was not based on speculation and was not a net

opinion.

Richard's argument that harm under prong one was not proved

is also without merit. It is well settled the Division need not

demonstrate actual harm in order to satisfy prong one. N.J. Div.

of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App.

Div. 2001). Rather, the focus under the first prong is not on any

"single or isolated harm," but rather on "the effect of harms

arising from the parent-child relationship over time on the child's

health and development." K.H.O., 161 N.J. at 348 (citing N.J.

Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-10

(1986)). The harm may be established by "a delay in establishing

a stable and permanent home." DMH, 161 N.J. at 383.

Furthermore, "[a] parent's withdrawal of [] solicitude,

nurture, and care for an extended period of time is in itself a

harm that endangers the health and development of the child." Id.

at 379 (citing K.H.O., 161 N.J. at 352-54). Additionally, a

parent's "persistent failure to perform any parenting functions

and to provide . . . support for [the child] . . . constitutes a

parental harm to that child arising out of the parental

relationship [that is] cognizable under N.J.S.A. 30:4C-15.1(a)(1)

17 A-3202-16T4
and (2)." DMH, 161 N.J. at 380-81 (citing K.H.O., 161 N.J. at

352-54).

Here, the record establishes Harold was harmed by Richard's

absence from his life. The trial judge found "the conduct of

[Richard] throughout the entire period of the Division's history

with the family has met th[e] standard [for prong one] 'on all

fours.'" The judge recounted that Richard did not identify himself

as Harold's father for the first two years of his life and had

contemplated an identified surrender. The judge stated Richard

"seems to have been uninvolved in [Harold's] life to any meaningful

degree."

The judge noted Richard's lack of a relationship with Harold

was demonstrated through Dr. Kanen's psychological and bonding

evaluation. In addition, Dr. Kanen found Richard would harm Harold

because Richard permitted Tiffany to be Harold's sole caregiver

knowing she had severe substance abuse problems. The judge stated:

The evidence is clear that [Richard] was fully
aware of [Tiffany's] ongoing . . . substance
abuse problem and took no action at all to put
himself in a position to care for his own son.
In fact, . . . [Richard] admitted to never
having complied with services; stating he was
just waiting for [Tiffany] to do so.

The judge credited Dr. Kanen's unrebutted conclusion that

returning Harold to Richard would expose him to an unnecessary

risk of harm.

18 A-3202-16T4
 In DMH, 161 N.J. at 379, the father failed to parent and left

his child with the mother when he knew they were living in

deplorable conditions. The Court concluded the father's "failure

to perform any parenting functions and to provide nurture, care,

and support constitute[d] a parental harm to [the] child arising

out of the parental relationship" which satisfied N.J.S.A. 30:4C-

15.1(a)(1).

Here, Richard also willfully chose not to parent or come to

the aid of Harold. His withdrawal from Harold subjected him to

harm inflicted by Tiffany's drug abuse and the instability of four

removals. As the trial judge found, Richard never nurtured or

cared for the child, and "during the entire period the Division[]

[was in] contact with the family, [never] maintained stable,

independent housing where he could provide a suitable home for

Harold." Accordingly, the trial judge correctly found that the

Division established harm under the first prong of the best

interests standard.

V.

The third prong of the best interests of the child standard

requires the Division to establish that it made reasonable efforts

to help the parent correct the circumstances that led to the

child's removal from the parent's care, and "considered

alternatives to termination of parental rights." N.J.S.A. 30:4C-

19 A-3202-16T4
15.1(a)(3). The Division's efforts must be analyzed "with

reference to the circumstances of the individual case," including

the parent's degree of participation. DMH, 161 N.J. at 390.

N.J.S.A. 30:4C-15.1(c) defines diligent efforts as those

reasonable "attempts by an agency authorized by the [D]ivision to

assist the parents in remedying the circumstances and conditions

that led to the placement of the child and in reinforcing the

family structure[.]" The statute lists examples of "reasonable

attempts" at reunification, including but not limited to:

(1) consultation and cooperation with the
parent in developing a plan for appropriate
services;

(2) providing services that have been agreed
upon, to the family, in order to further the
goal of family reunification;

(3) informing the parent at appropriate
intervals of the child's progress, development
and health; and

(4) facilitating appropriate visitation.

[Ibid.]

Richard argues the Division's failure to make reasonable

efforts to investigate his brother as a placement for the child

was a violation of N.J.S.A. 30:4C-12.1. Richard likens his case

to N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super.

568, 581-82 (App Div. 2011), where we stated "the Division's

statutory obligation does not permit willful blindness and

20 A-3202-16T4
inexplicable delay in assessing and approving or disapproving a

relative known to the Division[.]"

Here, however, the Division met its burden of reasonable

efforts to search for a relative placement for the child. First,

as we noted, from the inception of the Division's involvement with

Tiffany in 2012, the Division sought to identify Harold's father.

The record demonstrates the Division persisted in its efforts, but

was not able to identify Richard as the father until April 2014.

Even then, Richard's whereabouts were unknown until February 2015,

because the Division could not find him. Indeed, the record

demonstrates Richard frustrated the Division's efforts to share

and obtain information from him by failing to answer telephone

calls or inform the Division of his whereabouts, which limited the

Division's ability to explore relative placements.

Once Richard was identified, the record demonstrates he

delayed any progress the Division could make by failing to appear

for several paternity tests and failing to remain in contact with

the Division altogether. It was not until December 1, 2015, when

Harold was nearly four years old, and while Richard was

incarcerated, that paternity testing was performed which

determined Richard to be the father. Richard was the cause of the

delay.

21 A-3202-16T4
 When the Division was able to locate a relative, the paternal

grandmother, she at first rejected the notion of being a resource

for Harold, and then was ruled out as a placement. Although,

Richard's brother was suggested by the paternal grandmother as a

resource, he never presented himself to be evaluated. Also,

Richard did not request his brother be evaluated.

N.J.S.A. 30:4C-12.1(a) requires the Division search for and

assess relatives as potential placements; however, the Division

is not obligated "to search the fifty states or even the twenty-

one counties to identify [relatives]." K.L.W., 419 N.J. Super.

at 582. For these reasons, we are not persuaded the Division

failed to make reasonable efforts to bring about family

reunification.

Richard also argues the Division "did not undertake

reasonable efforts to develop a plan for services in violation of

its statutory responsibilities under N.J.S.A. 30:4C-15.1(c)." We

disagree.

The determination whether the Division's efforts were

sufficient is a fact sensitive inquiry. D.M.H., 161 N.J. at 390.

The Division need only provide "coordinated" services with a

"realistic potential" of success. N.J. Div. of Youth & Family

Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002).

Success is not guaranteed as "even [the Division]'s best efforts

22 A-3202-16T4
may not be sufficient to salvage a parental relationship." F.M.,

211 N.J. at 452.

The Division offered Richard numerous services once he was

identified as the father, and a road map for reunification with

Harold. However, when this possibility was raised, Richard

informed the case worker "there's nothing I can do." Nevertheless,

the Division encouraged visitation, and offered Richard bus passes

so he could see Harold more often, substance abuse evaluations and

treatment, and psychological evaluations. Richard failed to take

advantage of services. He missed numerous scheduled appointments

for paternity testing, substance abuse, psychological evaluations,

drug screenings and frequently missed visitation.

Thus, the trial judge concluded: "[B]ased on the evidence of

continuing substance abuse, unstable and unidentified housing by

[Richard] and the results of his bonding and psychological

evaluations, it would not be possible to place [Harold] in his

care." For these reasons, the Division proved by clear and

convincing evidence prong three of the best interests standard.

N.J.S.A. 30:4C-15.1(a)(3).

Affirmed.

23 A-3202-16T4