DCPP VS. P.G., IN THE MATTER OF THE GUARDIANSHIP OF G.B. (FG-19-0028-15, SUSSEX 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NOT FOR PUBLICATION WITHOUT THE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-5093-17T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

P.G.,

Defendant-Appellant.
_____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF G.B.,

a Minor.
_____________________________

Submitted May 30, 2019 – Decided June 19, 2019

Before Judges Whipple and Firko.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FG-19-0028-15.

Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
 of counsel; Bruce Pozu Lee, Designated Counsel, on
the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason Wade Rockwell, Assistant Attorney
General, of counsel; Victoria Almeida Galinski, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Danielle Ruiz, Designated Counsel,
on the brief).

PER CURIAM

Defendant P.G.,1 the biological father of G.B., born in July 2008, appeals

from the June 19, 2018 judgment of guardianship, which terminated his parental

rights to the child. P.G. contends the trial judge erred in finding P.G. was

properly served with the complaint, that the judge erred in finding the Division

of Child Protection and Permanency (Division) proved prongs three and four of

N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence, and the judge erred

in granting the Division's application for a default judgment pursuant to Rules

1:2-4(a) and 4:43-1. We reject these contentions and affirm.

We will not recite in detail the history of the Division's involvement with

the family. Instead, we incorporate by reference the factual findings set forth in

1
Pursuant to Rule 1:38-3(d), we use initials to protect the confidentiality of the
participants in these proceedings.
A-5093-17T2
2
Judge Michael C. Gaus's comprehensive written opinion dated June 19, 2018.

We add the following comments.

I.

After referrals alleging neglect of G.B. by K.B., her biological mother, the

Division conducted investigations prior to 2014 which initially resulted in

unsubstantiated findings. Thereafter, on February 19, 2014, a representative

from G.B.'s school reported that she was coming to school "in dirty and ill-fitting

clothing[,]" smelled of urine, and her hair needed shampooing and brushing.

K.B. refused to discuss hygiene concerns with the school nurse. The school also

expressed concerns about G.B.'s tardiness, absenteeism, failure to complete

homework, and difficulty in contacting her parents. Following an Order to

Investigate entered on March 11, 2014, K.B. underwent a random urine screen

which revealed she and her live-in paramour, N.H., "were either on strong

painkillers such as were given to cancer patients or were on heroin."

Because of K.G.'s drug use and concerns for G.B.'s welfare, a Dodd

removal2 took place on April 10, 2014. P.G. was not a viable option for

placement at that time because "[h]e was residing in some type of shelter. There

2
A Dodd removal is an emergency removal of a child from a parent's custody
without a court order, as authorized by the Dodd Act, N.J.S.A. 9:6-8.29.
A-5093-17T2
3
were ongoing criminal history concerns, substance abuse concerns, [and] mental

health concerns." He did not appear at the hearing, despite the Division's

attempts to notify him, and his visitation with G.B. was thereby suspended. The

child was placed with her paternal great aunt, S.C., and great uncle, M.C.

In November 2014, P.G. reported he was engaged in mental health

services at Bergen Regional Medical Center, where he was being drug screened

five days per week. Division notes indicate he "was not forthcoming if he was

in a dual diagnosis program." P.G. reported that he was receiving services

through the Mentally Ill Chemical Abuser program for anxiety and depression,

and he was prescribed Celexa and Klonopin. He refused to sign release forms

to allow the Division to access his records. P.G.'s visitation remained suspended

due to his failure to appear in court. In January 2015, the Division documented

its attempts to coordinate P.G.'s services with S.C., since he was not

communicating with the Division directly. Despite efforts to accommodate

P.G.'s transportation issues, he continued to miss meetings and evaluations.

In March 2015, Family Intervention Services recommended against the

implementation of therapeutic supervised visitation between P.G. and G.B. S.C.

and M.C. expressed concern about her placement, and wanted her removed from

their home. Due to this potential transition, the clinician opined that P.G. should

A-5093-17T2
4
comply with recommendation services before initiating therapeutic supervised

visitation with G.B. On March 4, 2015, P.G. failed to appear for the permanency

hearing, and the judge approved the Division's plan to proceed with termination

of P.G.'s parental rights.

On April 18, 2015, the Division filed a complaint, seeking to terminate

P.G.'s parental rights. G.B. was removed from S.C. and M.C.'s home on October

9, 2015, due to an allegation that she stole a necklace from S.C., and G.B. was

placed into pre-adoptive placement with M.B. and M.K. P.G. completed an

identified surrender to M.B. and M.K. on December 11, 2015, with the

understanding that if the family did not adopt G.B., his surrender would be

voided. M.B. described G.B. "is like a [seven] year old who is manipulative and

conniving like an [eighteen] year old girl. [They] have been doing this for

[eighteen] years and she is at the top of manipulation." Thereafter, the pre -

adoptive parents requested G.B. be removed from their home due to her

behavioral issues, and G.B. was placed in a non-relative, resource home, the K.

Family, on March 23, 2017. G.B. was diagnosed with Attention Deficit

Hyperactivity Disorder.

A-5093-17T2
5
 K.B.'s parental rights were terminated on April 25, 2016, after a separate

trial. K.B. appealed this decision, which we affirmed.3 The K. Family

ultimately decided they would not pursue adoption, and P.G.'s parental rights

were reinstated as per the terms of the court order. The Division filed an

abridged verified complaint on April 28, 2017, and the guardianship trial against

P.G. proceeded. In April 2017, S.C. expressed interest in visiting G.B. again

and being considered as a placement option for G.B. Based upon G.B.'s previous

placement with S.C. and M.C., caseworker M.D. confirmed they were seriously

considering adoption. G.B. was placed with S.C. and M.C. again on August 9,

2017, where G.B. currently remains. The Division case notes indicated although

S.C. and M.C. "continue[d] to state they [were] committed to [G.B.] long[-]term,

concerns continue to arise where they mention to worker that someone else

would be better suited for her."

P.G.'s trial was held on March 6, March 26, March 27, and April 17, 2018,

and he failed to appear on any of these dates. The law guardian and P.G.'s

counsel submitted written summations on May 7, 2018, and oral summations

were conducted on May 10, 2018, including by P.G.'s counsel. The Division

3
N.J. Div. of Child Prot. and Permanency v. K.B., No. A-3767-15 (App. Div.
Aug. 31, 2017).

A-5093-17T2
6
proffered the caseworker, M.D., as a fact witness, and Dr. Mark Singer as its

expert witness. G.B. testified as the law guardian's witness without objection, 4

and no witnesses were called on P.G.'s behalf. G.B. testified she sometimes

refers to S.C. and M.C. as mom and dad, they go to the movies, play charades

and board games, and go "ghost hunting" together. G.B. testified she is "very

excited and happy to know that [she's] going to have a forever family and [she's]

really excited to spend the rest of [her] life with [S.C. and M.C.]."

G.B. also testified that her parents did not act like "real parents" because

she "would not get a shower. [She] barely had any food there. They just gave

[her] bread and peanut butter. They wouldn't really take [her] to school. And

they wouldn't . . . help [her] with anything." She also testified her parents never

lived together, and that she would visit her father occasionally, sometimes when

K.B. was "partying." G.B. explained that P.G. was not part of her daily life, but

she would visit him sometimes when K.B. "wanted to go party with her friends,"

which was usually every other weekend. G.B. testified she never saw her father

doing drugs, but she knew that he did because she saw bags with writing at his

house that resembled the bags she saw at K.B.'s house. She testified the drugs

4
G.B.'s testimony was elicited in chambers and transmitted into the courtroom
simultaneously on a monitor.
A-5093-17T2
7
at her father's house were white, "crushed up pills[,]" with names written on

them, and they were left on the tables and dressers.

The judge found M.D. was unprepared for trial because P.G. relocated to

Florida, the caseworker was uncertain as to when the Division was notified he

moved, and "she had put minimal efforts to review the Division record in

preparing her testimony." M.D. recalled a telephone conversation she had with

P.G. in June 2017 notifying him that the adoption with M.K. and M.B. fell

through. P.G. expressed an interest in reunification, and M.D. offered to assist

him in finding appropriate housing. P.G. provided the Division with an address

in Paterson, which he stated served as his mailing and residential address. The

Division sent human resource police and made other efforts to locate P.G., but

no in-person contact was ever made.

P.G. also advised he resided in Clifton, Budd Lake, Butler, and Little Falls

at various times, and the Well of Hope Center in Paterson. The Division sent

regular and certified mail, return receipt requested, to all of the addresses

provided by P.G., and made in-person attempts to communicate with him, but

he could not be located. All of the letters attempting to advise P.G. of the date

and location of the hearing, and offering him transportation, were returned as

unclaimed.

A-5093-17T2
8
 On August 2, 2017, the Division sent via certified and regular mail, a

notice to P.G. at Well of Hope Center notifying him of its intention to proceed

with a default hearing against him and to terminate his parental rights on August

11, 2017. On August 3, 2017, M.D. sent defendant a text message which read:

"[P.G.] it's [M.D.] from [the Division]. I'm coming to Paterson this morning.

Where can [I] meet you to give you some court paperwork and talk about next

week?" P.G. responded that he was in Paterson at the time, but when M.D.

arrived, he could not be located despite follow-up text messages, phone calls,

and voice messages. Despite receiving no response, a Division caseworker

waited for P.G. across the street from the Well of Hope Center, but he never

showed. Consequently, P.G.'s visitation was suspended again and remained

suspended through October 2017.

M.D. also testified that at some point, P.G. blocked incoming calls on his

phone, preventing the Division from contacting him via telephone. She also text

messaged P.G. each time before she attempted to call him, and reached out

through the Division Facebook liaison, but she could never get confirmation that

her messages were received or read. The Division confirmed that defendant was

not incarcerated before the trial commenced. M.D. testified that P.G. never

requested visitation with G.B., and he did not attend any Division meetings.

A-5093-17T2
9
 At the time of trial, the Division suspected P.G. was living in a shelter,

but could not verify same. M.D. testified about P.G.'s criminal and substance

abuse history, and she expressed concerns about his mental health. She

confirmed that P.G. "never accepted or cooperated with Division services,

including when he was given a referral and asked to provide a urine screen[.]"

Singer conducted bonding evaluations of P.G., M.K., and M.B., as well as

with S.C. and M.C. The judge found Singer "highly knowledgeable in his

psychological field of expertise and experienced in testifying in court

proceedings." Singer has been a licensed psychologist in New Jersey since

1999, and the judge found him "qualified to testify as an expert, specifically

regarding attachment and bonding, as reflected in the multiple years of his

experience during which he has developed an expertise in attachment and

bonding[.]"

P.G.'s counsel argued that Singer was not qualified as an expert on

attachment and bonding issues based on criticism of his conclusions in one of

our unpublished dissenting opinions, and because in an earlier bonding

evaluation with M.K. and M.B., Singer concluded the couple had become G.B.'s

"psychological parents" after living with them for only thirty days. The judge

disagreed and permitted Singer to testify as an expert.

A-5093-17T2
10
 Singer testified that P.G. failed to appear for a bonding evaluation on

January 15, 2018. Singer conducted a bonding evaluation between G.B., S.C.,

and M.C. on January 18, 2018, and clinical interviews. Prior bonding

evaluations of M.K., M.B., and K.B. were conducted on October 13, 2015 and

December 17, 2015, and were relevant because they showed G.B. has the ability

to psychologically connect with persons representing a parental figure in her

life. Singer testified that attachment and bonding are used interchangeably, and

deals with "a relationship that evolves over time, [and] begins at birth." He

explained:

[I]t's the type of relationship which a child looks to for
love, for nurturance, for security, and the idea behind it
. . . is that that relationship becomes the model for
future relationships. It becomes the schemata which a
child uses to help navigate the challenges associated
with childhood and . . . associated with adolescents and
adults. It's the basic sense of security.

Singer addressed the initial failed placement with S.C. and M.C., and

noted "it appears that [G.B.] had stolen something from [S.C. and M.C.] and

there was information offered that the biological mom . . . may have been

influencing [G.B.] at a point in time." Singer testified G.B.'s behavior had

improved over time, and it "speaks to the idea that as consistency for this child

increases, her behavior and emotional state is likely to become more stable over

A-5093-17T2
11
time." S.C. and M.C. did not express any concerns regarding G.B.'s current

behavior. Singer opined G.B. "has a positive perception" of her relationship

with S.C. and M.C., has "really integrated into the family system[,]" and has

come to see them "as being central parental figures in her life." Noting that he

did not have the opportunity to meet with P.G., due to his failure to attend his

evaluation, Singer testified:

[I]t appears that the biological father has absented
himself from this child's life. The child has a history of
inconsistency, has experienced significant
abandonment, has a desire to connect, has the ability to
connect, and has come to see [S.C. and M.C.] as being
central parental figures, and . . . unfortunately [there
is] no other data to suggest there's any other alternative
available to [G.B.] to achieve permanency.

The judge granted the Division's application to terminate defendant's

parental rights, and also entered a default judgment against him, pursuant to

Rules 1:2-4(a) and 4:43-2(b).

II.

An appellate court is limited in its review of parental termination cases.

N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). A trial

court's fact finding should be generally undisturbed "when supported by

adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412

(1998). The appellate court gives particular deference to a trial judge's fact

A-5093-17T2
12
finding in a family matter because the trial court's expertise and its "opportunity

to make first-hand credibility judgments about the witnesses who appear on the

stand; it has a 'feel of the case' that can never be realized by a review of the cold

record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)

(quoting M.M., 189 N.J. at 293).

A trial judge's fact finding should only be disturbed if his or her findings

"are so wholly unsupportable as to result in a denial of justice." In re

Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship

of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). This court should not

reverse the family court's decision "when there is substantial credible evidence

in the record to support the court's findings." E.P., 196 N.J. at 104. The

appellate scope of review is expanded when the "trial judge is clearly mistaken

and his [or her] decision so plainly unwarranted that the interests of justice

demand intervention and correction." N.J. Div. of Youth & Family Servs. v.

C.S., 367 N.J. Super. 76, 112 (App. Div. 2004) (quoting Formosa v. Equitable

Life Assurance Soc'y, 166 N.J. Super. 8, 20 (App. Div. 1979)).

P.G. first contends the Division did not comply with service of process

requirements pursuant to N.J.S.A. 30:4C-17(b), and that the judge erred in

finding the Division was not required to serve P.G. with the abridged complaint.

A-5093-17T2
13
We disagree. The judge aptly found that the Division met its burden in

attempting to locate P.G. and serve him with the abridged complaint even though

there was no requirement to do so. P.G. also claims that it is unclear whether

service of the first complaint was proper because the Division's records do not

indicate he was served.

Division case notes indicate that on April 16, 2014, two caseworkers met

with P.G. "to serve him with the court paperwork from the removal of his

daughter," and P.G. was "upset that he was not given much notice to go to court."

Moreover, P.G. appeared at the 2014 hearing, leading the judge to appropriately

find P.G. was duly served. Further, P.G. telephoned the Division on May 23,

2014 "to report that he had been served the court order and all supporting

documentation." The judge found P.G. appeared with counsel when he

completed his identified surrender, he was notified that his parental rights were

reinstated when the proposed adoption fell through, and P.G.'s counsel was

reinstated upon the filing of the abridged verified complaint.

While "[i]t is well[-]established as a matter of due process principle that

procedural requirements are more demanding in parental termination cases than

in ordinary civil actions," due process "is a flexible concept and calls for such

A-5093-17T2
14
procedural protections as the particular situation demands." N.J. Div. of Youth

& Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 464, 467 (App. Div. 2003).

An action for termination of parental rights is a civil
action. The requirements of due process do not confer
a constitutional right of confrontation or mandate a
parent's presence at the trial. The question to be
answered is not whether particular procedures were
used, but rather whether those procedures which were
employed were appropriate and adequate to protect the
interests at stake.

Procedural due process standards require the
opportunity for meaningful participation by the person
at risk of limitation in any trial in which important
rights or interests are to be adjudicated.

[Id. at 467-68 (citations omitted).]

In determining whether a parent's due process requirements have been

met, our courts have applied the three-prong test set forth in Mathews v.

Eldridge, 424 U.S. 319, 335 (1976). This test requires the court to consider: 1)

"the private interest that will be affected by the official action;" 2) "the risk of

an erroneous deprivation of such interest through the procedures used, and the

probable value, if any, of additional or substitute procedural safeguards;" 3) "the

Government's interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement

A-5093-17T2
15
would entail." Ibid. In balancing the third factor, we relied on a New York case,

which held:

[T]he children's right to a prompt determination of their
status is just as important as the interest of the father,
and that an indefinite delay of the children's right is a
more egregious deprivation than the father's loss of his
right to be present at the hearing. This right of the
father is only one part of his due process rights in these
proceedings, and its loss will not necessarily deprive
him of a fair hearing. The risk that his absence will lead
to an erroneous decision can be reduced or eliminated
by permitting him to give testimony by deposition, if
possible, and by his representation at trial by his
attorney. The loss by the children of their day in court
will, on the other hand, deprive them completely of
their right to a judicial determination of their status.

[M.Y.J.P., 360 N.J. Super. at 470-71 (quoting Matter of
Raymond Dean L., 490 N.Y.S.2d 75, 78 (App. Div.
1985)).]

The law guardian and the Division argue N.J.S.A. 30:4C-17(b), which requires

the Division to serve a parent with notice of a guardianship proceeding, was

satisfied. We agree. If personal service cannot be achieved because the parent's

whereabouts are unknown, "the court shall determine that an adequate effort has

been made" if the Division has

(1) Sent the notice by regular mail and by certified mail
return receipt request, to the last known address of the
parent;

A-5093-17T2
16
 (2) Made a discreet inquiry among any known relatives,
friends, and current or former employees of the parent;

(3) Unless otherwise restricted by law, made direct
inquiries, using the party’s name and last known or
suspected address, to the local post office, the New
Jersey Motor Vehicle Commission in, but not of, the
Department of Transportation, the county welfare
agency, the municipal police department, the Division
of State Police in the Department of Law and Public
Safety, the county probation office, the Department of
Corrections, and any other social service or law
enforcement agency known to have had contact with the
parent, or the equivalent agencies in other states,
territories, or countries.

[N.J.S.A. 30:4C-17(b).]

The statute requires the notice to "inform the parent of the purpose of the action

and of the right to file written objections to the guardianship proceedings within

"[twenty] days after notice is given in the case of a resident[.]" Ibid.

P.G. claims the judge infringed on P.G.'s constitutional right to due

process under the Fourteenth Amendment, and that proper notice of the first

complaint was not sufficient to establish notice of the abridged complaint,

noting the failure of adoption as an intervening event, and that none of the letters

sent to him informed him of his right to file written objections. He contends

"[t]he letters expressed ambiguity as to whether litigation had commenced, when

in fact [the Division] had filed its complaint." The subject letter dated August

A-5093-17T2
17
2, 2017 states: "The Division intends to move forward in an effort to terminate

parental rights at this time. Failure to attend the court hearing . . . may result in

default being entered against you, with a [t]ermination of [p]arental [r]ights

trial[.]"

The judge found that P.G. appeared in court and completed an identified

surrender of his parental rights, indicating that he received the initial verified

complaint. The Division submitted three affidavits of inquiry, dated July 13,

2017, October 10, 2017, and December 5, 2017, detailing its diligent efforts to

locate and serve P.G. with the abridged verified complaint, including sending

certified and regular mail to his various addresses, and efforts to call, text,

Facebook message, and perform on-site visits. A fourth affidavit of diligent

inquiry, dated February 14, 2018, redacted in part, revealed the Division

attempted to secure an address for P.G. by making inquiries with the New Jersey

State Police, United States Postal Service, New Jersey Motor Vehicle

Commission, New Jersey Parent Locator Services, New Jersey Department of

Corrections, New Jersey Employer Accounts, and New Jersey Bureau of Parole,

to no avail. S.C. also provided contact information for P.G. He also argues

affidavits of inquiry do not constitute sufficient service for a guardianship

proceeding. We are convinced that the judge had substantial, credible evidence

A-5093-17T2
18
to conclude the Division satisfied the "adequate effort" standard pursuant to

N.J.S.A. 4C-17(b).

III.

P.G. contends the judge erred in finding the Division proved prongs three

and four of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Our

Supreme Court has established the standard of review in parental termination

cases:

Our task as an appellate court is to determine whether
the decision of the family court in terminating parental
rights is supported by "'substantial and credible
evidence' on the record." 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. . . . We will
not overturn a family court's factfindings unless they
are so "wide of the mark" that our intervention is
necessary to correct an injustice. It is not our place to
second-guess or substitute our judgment for that of the
family court, provided that the record contains
substantial and credible evidence to support the
decision to terminate parental rights.

[N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.
420, 448-49 (2012) (first quoting M.M., 189 N.J. at
279; then quoting E.P., 196 N.J. at 104).]

Applying this standard, we discern no error in the judge's findings.

A-5093-17T2
19
 P.G. argues the judge erred in finding the Division proved prong three by

clear and convincing evidence because the Division did not explore alternatives

to termination and failed to engage P.G. in planning for G.B's permanency. We

disagree.

"The third prong requires an evaluation of whether [the Division] 'made

reasonable efforts to provide services to help the parent' remedy the

circumstances that led to removal of the children from the home." F.M., 211

N.J. at 452 (quoting N.J.S.A. 30:4C-15.1(a)(3)). The emphasis on the third

prong

is on the steps taken by [the Division] toward the goal
of reunification. "The diligence of [the Division's]
efforts on behalf of a parent is not measured by"
whether those efforts were successful. "'Reasonable
efforts' may include consultation with the parent,
developing a plan for reunification, providing services
essential to the realization of the reunification plan,
informing the family of the child's progress, and
facilitating visitation." Experience tells us that even
[the Division's] best efforts may not be sufficient to
salvage a parental relationship.

[Ibid. (citation omitted) (first quoting In re
Guardianship of DMH, 161 N.J. 365, 393 (1999); then
quoting M.M., 189 N.J. at 281).]

A-5093-17T2
20
As part of the inquiry, "the court must consider the alternatives to termination

of parental rights and whether the Division acted reasonably." N.J. Div. of

Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434-35 (App. Div. 2001).

"The reasonableness of the Division's efforts depends on the facts in each

case." Id. at 435. "Services that may address one family's needs will not be

helpful to another." DMH, 161 N.J. at 390. Therefore, "[w]hether particular

services are necessary in order to comply with the diligent efforts requirement

must . . . be decided with reference to the circumstances of the individual case

before the court, including the parent's active participation in the reunification

effort." Ibid.

Nevertheless, "[t]he diligence of [the Division's] efforts on behalf of a

parent is not measured by their success. Thus, the parent's failure to become a

caretaker for his [or her] children is not determinative of the sufficiency of [the

Division's] efforts at family reunification." Id. at 393. Rather, the Division's

"efforts must be assessed against the standard of adequacy in light of all the

circumstances of a given case." Ibid. Moreover, even if the services offered

were deficient, reversal of a termination order is not necessarily warranted. N.J.

Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 488 (App. Div.

2012). The best interests of the children controls. Ibid.

A-5093-17T2
21
 P.G. does not dispute the Division made reasonable efforts here, but

instead relies on S.C. and M.C.'s equivocal position on whether they would

adopt G.B. to support his contention that the Division did not properly explore

alternatives to termination. At one point, S.C. and M.C. were willing provide

Kinship Legal Guardianship (KLG) for G.B. KLG is an alternative to

termination of parental rights, but is not a defense to termination. N.J. Div. of

Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004). P.G. argues adoption

should only be considered when a caregiver "unequivocally asserts a desire to

adopt[.]" N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127, 130

(App. Div. 2011).

The Kinship Guardianship Act, N.J.S.A. 3B:12A-1(b), was created to

provide children with safe and stable homes where "caregivers either are unable

or unwilling to seek termination of the legal relationships between the birth

parent and the child . . . . In these cases, adoption of the child is neither feasible

nor likely[.]" The statute allows for KLG as an alternative to termination, and

"is intended to be permanent and self-sustaining, as evidenced by the transfer to

the caregiver of certain parental rights, but retains the birth parents' right to

consent to adoption, the obligation to pay child support, and the parents' right to

have some ongoing contact with the child[.]" Ibid. P.G. claims the purpose of

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the act, along with M.C. and S.C.'s unwillingness to adopt G.B., required the

Division to consider them for KLG instead of adoption.

KLG, however, should only be utilized when adoption is neither feasible

nor likely. P.P., 180 N.J. at 509. Our Supreme Court held "[t]he plain language

of the [Kinship Guardianship] Act, as well as its legislative history, establish

[KLG] as a more permanent option than foster care, when adoption" cannot be

achieved. Id. at 512. There, our Supreme Court held that because grandparent

adoption was feasible for the children, KLG was not available. Ibid. The

Supreme Court further held "when the permanency provided by adoption is

available, [KLG] cannot be used as a defense to termination of parental rights

under N.J.S.A. 30:4C-15.1[(a)](3)." Id. at 513. KLG "is not intended as an

equally available alternative to termination that must be considered in order to

satisfy the third element of N.J.S.A. 30:4C-15.1[.]" N.J. Div. of Youth & Family

Servs. v. S.V., 362 N.J. Super. 76, 88 (App. Div. 2003).

Consistent with the judge's findings and conclusions, and contrary to

P.G.'s arguments on appeal, the record reflects the Division sought alternatives

to adoption. Although S.C and M.C. requested G.B. be removed from their

home, Singer testified that her behavior improved because she had limited

contact with her biological parents. S.C. and M.C. "always expressed an

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ongoing interest in her life and wanted to be a part of her life[,]" and later

expressed a strong interest in adopting G.B. The Division is not at fault for

P.G.'s failure to see G.B. for the four years after she was removed from K.B.'s

care. The judge concluded the Division "persistently and creatively" took steps

to locate P.G. through formal search methods, he was aware of the formal search

methods, he was aware of the failed placement with S.C. and M.C., and he

expressed an interest in planning for G.B. in June 2017.

The court's focus must be on determining the best interests of the child.

A.G., 344 N.J. Super. at 442. The judge did so here. The record supports his

factual findings and conclusions that the Division established prong three by

clear and convincing evidence.

IV.

Prong four of N.J.S.A. 30:4C-15.1(a) requires the Division to show by

clear and convincing evidence that "[t]ermination of parental rights will not do

more harm than good." The fourth prong serves as "a 'fail-safe' inquiry guarding

against an inappropriate or premature termination of parental rights." F.M., 211

N.J. at 453. "The question ultimately is not whether a biological mother or father

is a worthy parent, but whether a child's interest will best be served by

completely terminating the child's relationship with that parent." E.P., 196 N.J.

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at 108. The court must determine "whether . . . the child will suffer a greater

harm from the termination of ties with [his or] her natural parents than from the

permanent disruption of [his or] her relationship with [his or] her foster parents."

In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999).

Because harm to the child stemming from termination of parental rights is

inevitable, "the fourth prong of the best interests standard cannot require a

showing that no harm will befall the child as a result of the severing of biological

ties." Ibid. Rather, the court's inquiry is one of comparative harm, for which

the court must consider expert evaluations of the strength of the child's

relationship to the biological parents and the foster parents. Ibid. Thus, "[t]o

satisfy the fourth prong, the [Division] 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." F.M., 211 N.J. at 453 (quoting M.M.,

189 N.J. at 281). "Under this prong, an important consideration is '[a] child's

need for permanency.' 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." Ibid. (alteration in original) (quoting M.M.,

189 N.J. at 281).

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 Here, the judge found:

Throughout the course of this litigation, [P.G.] has done
nothing to plan meaningfully for [G.B.] nor has he done
anything to move toward reunification with the child.
The record reflects he had the ability to contact the
Division and/or [S.C.] in order to have contact with
[G.B.] but chose not to be available for visitation with
[G.B.] for the four years following her removal from
[K.B.]. Even before this litigation, [P.G.] was a "back-
up" parental figure for [G.B.] when [K.B.] was
unavailable to care for the child.

P.G. contends Singer's testimony was flawed because he was unaware of

instances where G.B. was struck in the shower by M.K., who also allegedly

pulled her hair out of impatience. Other information elicited from Singer on

cross-examination, such as G.B.'s request to be removed from S.C. and M.C.'s

care six months before trial and their comment that someone else may be "better

suited" to care for G.B., warrants reversal according to P.G. His contention

lacks merit. Singer pointed out that there was no relationship between P.G. and

G.B., and she never viewed P.G. as a caretaker. Moreover, G.B. testified she

wished to remain in S.C. and M.C.'s care and to be adopted by them. In addition,

Singer addressed concerns regarding S.C. and M.C.'s willingness to adopt and

he determined that they are committed to permanently adding G.B. to their

family. The judge did not err in relying on Singer's uncontroverted testimony.

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 In relying upon Singer's testimony, the judge found P.G.'s absenteeism

from G.B.'s life led to severance of the father/daughter relationship. The judge

relied on Singer's opinion that if G.B. were to be removed from S.C and M.C.'s

care, "there would likely be significant negative reaction to the loss of that

relationship which would likely build upon her history of previous losses."

Singer further stated, "accessibility and responsiveness is a key necessity

in developing a healthy bond and attachment between parent and child, and that

healthy bond is absent here because the biological father has been absent from

[G.B.'s] life for the last four years." The judge also relied upon Singer's

testimony that G.B. "perceives her relationship with [S.C. and M.C.] as

representing a position of consistency and stability" and that they "support the

child's interest in various activities and have integrated her into the family

system." Singer also testified G.B. "looks to the love, nurturance and stability

being offered by adult figures, and this becomes a model for future relationships

and represents a basic sense of security in a child's life." G.B. fully bonded with

S.C. and M.C., and they represent "the central parental figures in her life."

Singer testified that G.B. will be harmed if permanency is not achieved or further

delayed, and he noted that because the paternal aunt and uncle are related to

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G.B., they would be in a better position to answer any questions she might have

about her origins, adding a mitigating element to their relationship.

The judge rightfully concluded that termination of P.G.'s parental rights

would not do more harm than good, as termination would provide G.B. with the

permanency and stability she requires because she will be made legally free for

adoption by her resource parents.

The record supports the judge's factual findings and conclusion that the

Division established prong four by clear and convincing evidence. The record

evidences no realistic possibility that P.G. will ever be able to safely and

appropriately parent G.B., and certainly not in time to meet her permanency

needs. Moreover, Singer testified, without contradiction, that G.B. already

"severed" her relationship with P.G., leading the judge to conclude "to prolong

resolution of her status by indefinitely extending resource care placement[,]"

termination of P.G.'s parental rights would not do G.B. more harm than good.

See N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592

(App. Div. 1996). Singer's bonding evaluation concluded that G.B. views S.C.

and M.C. as her "psychological parents."

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 V.

Lastly, P.G. argues that the judge improperly entered default pursuant to

Rules 1:2-4(a) and 4:43-1. Rule 1:2-4(a) provides:

[I]f without just excuse or because of failure to give
reasonable attention to the matter, no appearance is
made on behalf of a party on the call of a calendar, on
the return of a motion, at a pretrial conference,
settlement conference, or any other proceeding
scheduled by the court, or on the day of trial, or if an
application is made for an adjournment, the court may
order . . . (c) the dismissal of the complaint, cross-
claim, counterclaim or motion, or the striking of the
answer and the entry of judgment by default, or the
granting of the motion; or (d) such other action as it
deems appropriate.

Further, Rule 4:43-1 allows default to be entered against a party if he or

she "has failed to plead or otherwise defend as provided by these rules or court

order[.]" Default may not be entered solely because a parent was not present at

trial if he or she was present at all prior court hearings and cannot be based on

the defendant's failure to appear in court alone. N.J. Div. of Youth & Family

Servs. v. P.W.R., 410 N.J. Super. 501, 506 (App. Div. 2009), rev'd on other

grounds, 205 N.J. 17 (2011). The trial court must examine the reasons for a

defendant's failure to appear and consider whether defendant's presence is of

sufficient importance as to warrant entering a default. Id. at 508-09.

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 P.G. argues that his counsel was present throughout the litigation, making

default against him improper and constituting an infringement of his due process

rights. The Division and the law guardian direct our attention to P.W.R. to

distinguish from the case at hand. In P.W.R., a default judgment was entered

against the defendant mother after she failed to appear at a two-day fact finding

hearing. Id. at 504-05. We found the trial court's entry of default constituted

error because defendant appeared at all of the previous hearings, and there was

no evidence she failed to comply with court orders. Id. at 506. "Because a party

represented by counsel may defend at a trial without being physically present,

default may not be entered when a party is not present at trial absent evidence

that the party has not otherwise defended as required by rule or court order."

Ibid. We found the entry of default to be of "no consequence[,]" because

"defendant's attorney was permitted to cross-examine the witnesses that were

called and to give a closing statement[,]" and we affirmed the termination of

parental rights. Id. at 510.

Under the circumstances in this case, the judge found P.G. failed to attend

any of his court hearings and he failed to comply with court orders requiring

him to complete services, including urine screens. P.G. also failed to appear for

substance abuse evaluations on May 22, June 11, June 30, July 21, 2014, and

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January 15, 2015. He commenced a substance abuse evaluation on February 12,

2015, but it was not completed because P.G. "became incarcerated shortly

thereafter and was unable to undergo a second urine screen." P.G. never

contacted the Division or G.B.'s resource parents to inquire about her well-

being, despite the multitude of attempts the Division made to contact and locate

him. Similar to our holding in P.W.R., if the judge entered the default in error

here, it was inconsequential because P.G.'s attorney was present at every court

hearing, cross-examined witnesses, and gave a closing statement.

The Division and the law guardian also rely upon In re Guardianship of

N.J., 340 N.J. Super. 558, 560-61 (App. Div. 2001), where we upheld a default

judgment against the defendant mother. There, defendant forgot about the trial

date, and she failed to appear. Id. at 559. She also failed to appear at nine of

the eleven prior court hearings, failed to undergo court-ordered drug

evaluations, or attend a psychological evaluation. Id. at 561. Here, the judge

analyzed P.G.'s reasons for his non-compliance with court orders and his failure

to appear at trial and noted P.G. "appeared with counsel in the proceeding when

he completed his identified surrender[,]" and P.G. was notified when the

surrender "was set aside and the case was reactivated." P.G. was consistently

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noncompliant throughout these proceedings and we discern no basis to vacate

default.

We are satisfied the judge's opinion tracks the statutory requirements of

N.J.S.A. 30:4C-15.1(a), accords with applicable case law, is amply supported

by the record, and default was appropriately entered.

Affirmed.

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