STATE OF NEW JERSEY, DIVISION OF YOUTH AND FAMILY SERVICES v. K.G.

 
(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2411-09T4

STATE OF NEW JERSEY, DIVISION OF YOUTH AND FAMILY SERVICES,

 

Plaintiff-Respondent,

 

v.

 

K.G.,

 

Defendant-Appellant.

________________________________

 

INTHE MATTEROF THEGUARDIANSHIP OF E.M.G., A MINOR.

________________________________

October 15, 2010

 

Submitted: September 13, 2010 Decided:

 

Before Judges Grall, C.L. Miniman and LeWinn.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-72-05.

 

YvonneSmith Segars,Public Defender, attorney for appellant (Miles S. Lessem, Designated Counsel, on the brief).

 

Paula T. Dow, Attorney General of New Jer sey, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Susan Brown Peitz, Deputy Attorney General, on the brief).

 

YvonneSmith Segars,Public Defender, Law Guardian, attor ney for minor E.M.G.(Todd S. Wilson, Designated Counsel, on the brief).

PER CURIAM

Defendant K.G. (father), the father of E.M.G. (fictitiously Emily) appeals the termination of his parental rights to Emily. The father concedes that the Division of Youth and Family Services (Division) proved the first two prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence, but disputes the sufficiency of the proofs respecting the third and fourth elements. Because we are satisfied that the Division has proved those prongs by clear and convincing evidence, we affirm.1

Because we need not address the sufficiency of the proofs under the first and second prongs of the statute, our recitation of the facts has been greatly simplified. Emily was born prema turely at thirty-six weeks of gestation on February 27, 2003. She weighed just five pounds, nine ounces, and her mother admit ted using marijuana and cocaine while she was pregnant. The Division found the allegations of neglect substantiated and placed Emily in a foster home with the mother's consent. The father was incarcerated at the time of Emily's birth.

On October 24, 2003, the father was sentenced to a five-year term of imprisonment on one count of first-degree robbery. While he was serving that sentence he was convicted of another count of first-degree robbery and was sentenced on May 13, 2005, to a term of eleven years and six months. Thus, the father has been incarcerated continuously since Emily was born and will remain incarcerated for a significant period of time in the future.2

Emily was discharged from the hospital to a foster home on April 8, 2003. M.C. and J.C., who were ultimately proposed as Emily's adoptive parents, assisted these foster parents in caring for Emily from the time Emily was nine to eleven months old. Although the Division offered multiple services to the mother after this placement, she was unable to remain drug-free or correct the circumstances that resulted in Emily's placement in foster care. She was granted visitation but only exercised it a handful of times. She was referred for a sub stance-abuse evaluation and treatment, as well as parenting-skills classes, but she was unable to avoid using drugs. While these services were being offered, Emily was moved to the home of M.C. and J.C. The Division filed a complaint seeking custody of Emily. As noted previously, the mother failed to appear in that action, and the judge entered an order terminating her parental rights on October 3, 2005.

Prior to the termination of her parental rights, the mother offered the father's mother, L.G. (paternal grandmother), as a possible relative placement. At that time, Emily had been liv ing for some time with M.C. and J.C., who wanted to adopt her. However, the paternal grandmother contacted the Division when Emily was two and one-half years old, indicating that she wanted to obtain custody of Emily, and she was granted visitation. The father then executed an identified surrender of his parental rights on September 19, 2005, consenting to the plan for his mother to adopt Emily.

Two months later, Emily was placed with her paternal grand mother and the grandmother's boyfriend, S.H., but the placement proved to be a problem. Division caseworkers made frequent vis its, announced and unannounced, to the paternal grandmother's home and noted various serious concerns that rendered the home unsuitable for adoption. The grandmother consistently and vehe mently denied the extent of these problems, but the Division workers noted them during frequent visits. Emily's therapist noticed similar problems. Throughout this time, M.C. and J.C. were assisting the paternal grandmother in caring for Emily.

By early 2009, the grandmother had difficulty getting Emily to attend school and her therapy sessions; the grandmother was becoming increasingly con frontational with caseworkers. The grandmother concealed Emily's whereabouts from caseworkers at times and failed to dis close an incident where she took Emily to the hospital. Addi tionally, the paternal grandmother called M.C. to ask for her assistance in caring for Emily. Over time, M.C. and J.C. cared for Emily approximately ninety percent of the time. They cared for her before and after school, and she would sleep at their home several times a week and even consecutive weeks at a time.

The Division assessed M.C.'s and J.C.'s home, which was found to be large, neat, clean, and safe. Emily had her own playroom and her own bedroom, which was beautifully furnished. M.C. expressed concerns about Emily being in the paternal grandmother's custody and reported that, whenever she returned to M.C.'s home after leaving the paternal grandmother, her behavior was difficult. As a result, the Divi sion retained a psychologist to evaluate this situation and determine whether Emily was better off with the paternal grand mother or M.C. and J.C. By this time, Emily had been in the care of the paternal grandmother for four years and was over six years old. However, M.C. and J.C. maintained contact with Emily and often assisted in caring for her.

The psychologist, Barry Katz, Ph.D., performed comprehen sive psychological and bonding evaluations while Emily was in the paternal grandmother's care and again after the paternal grandmother alleged that J.C. had abused Emily. Dr. Katz performed similar bonding evaluations of Emily with M.C. and J.C. and psychological evaluations of M.C. and J.C.

Dr. Katz observed pressure on Emily by the paternal grand mother and found indications that the paternal grandmother was coaching, coercing, or intimidating Emily. He found no evidence of the allegation that J.C. had physically abused Emily, instead finding that she had a strong and healthy attach ment to J.C. and demonstrated no fear or intimida tion in his presence. Emily was calmer and more relaxed while with M.C. and J.C. and more aggressive and intense while with the paternal grandmother. Dr. Katz expressed concern over the paternal grandmother's ongoing conflicts with the Division, M.C., and J.C., and further was concerned with the use of alcohol and Xanax by the paternal grandmother's boyfriend, as well as his aggressive and verbally inappropriate manner in the presence of Emily.

Dr. Katz opined that Emily was dually bonded to the pater nal grandmother and M.C. and J.C., but her primary bond was with M.C. and J.C. He concluded that Emily was displaying signs of a conflicted attachment to the paternal grandmother and feelings of loss regarding M.C. He found that separation from M.C. was causing emotional strain on Emily and that she needed to have continued contact with J.C.

Dr. Katz concluded that the significant and on-going con cerns for Emily's welfare while in the paternal grandmother's care would support a plan to remove her from the home, and if she was removed, she should be placed with M.C. and J.C. He also recommended that Emily continue in treatment.

On April 15, 2009, the Division denied the paternal grand mother's application for a Resource Family License because of her continuing failure to ensure her home was in compliance with the State's regulations and other failures.

On May 15, 2009, the judge ordered that Emily be placed with M.C. and J.C. Although she thrived in their care, she still had behavioral problems and often acted out. The paternal grandmother was granted visitation, but M.C. reported that it had a very negative effect on Emily's conduct. When she returned from such visits, she was difficult and acted out by slamming doors and throwing things and told M.C. they were "not blood." Because of the deleterious effect of these visits, the judge terminated the paternal grandmother's visitation.

The May 2009 order also directed the Division to submit a plan for Emily to include adoption by M.C. and J.C. and termination of the father's parental rights. Since that time, Emily has made great progress with her behavior in school and has continued therapy. She has expressed her desire to remain with M.C.

After the father's identified surrender to his mother failed, he offered himself as a plan, believing he would be released because he petitioned for post-conviction relief. He offered his brother and his brother's girlfriend as resources and for placement. The brother and his girlfriend said that they thought the paternal grandmother would be getting custody and so they did not step in earlier. The Division ultimately rejected them because the bonding evaluations found that Emily's primary attachment figure was M.C.

During this time, services were provided to the father by the Division. He had some visitation while he was in prison. The Division then arranged to have Dr. Katz perform a bonding and psychological evaluation of the father on August 7, 2009, at Northern State Prison. The father indicated that he had been incarcerated for Emily's entire life and that he was eligible for parole in 2015. He understood that he could not parent her because he was incarcerated. He said he visited with Emily once or twice a month while she was with his mother, but only twice since May 2009. His plan was based on his belief that his con viction would be overturned based on his petition for post-conviction relief and that he would then get custody of Emily and raise her.

Dr. Katz administered psychological tests and determined that the father had a compulsive personality disorder and a lim ited coping ability. He could not provide any realistic means to deal with Emily's irritating or annoying behaviors. He con cluded that the father has severe coping deficits and anger issues and that he could not describe any means of dealing with Emily's behavior.

Dr. Katz concluded that Emily views her father as a famil iar person and describes him as daddy. She was comfortable in his presence; however, she was never in his care and viewed him more like a long familiar playmate than a parent. He concluded that the father has no capacity to parent at this time or in the foreseeable future, even were he not incarcerated. He opined that Emily would only suffer minimal or no harm from the termi nation of her relationship with her father and any potential harm would be mediated by therapy or support from M.C. and J.C.

Dr. Katz opined that termination of the father's parental rights would be in Emily's best interest. He also opined that if the relationship between Emily and M.C. and J.C. was severed, the consequences would be "cataclysmic." This was so because Emily "already had multiple experiences of loss of pri mary nurturing figures, separations. She's struggled with this. Her relationship with [M.C.] has been interrupted . . . numerous times in the past. She had a strong desire back in February and March to have a stable attachment with her. Now that that's been achieved, to upset that would cause her horrific consequences in the short term and permanently."

Dr. Elaine Weitz, who assessed Emily's relationship with M.C. and J.C. on behalf of Emily's law guardian, testified consistently with the testimony offered by Dr. Katz.

The Division submitted a plan to the judge providing for ter mination of parental rights and adoption by M.C. and J.C. The judge found the plan appropriate and acceptable and scheduled trial for November 2009.

On August 3, 2009, the judge heard a motion by the father's brother and his girlfriend seeking to be evaluated and consid ered as a placement option for Emily and seeking resumption of their visitation. The judge denied the motion finding, based on previous testimony and evidence submitted during the long pro ceedings, that the father's brother and his girlfriend had very little contact with Emily and had never been proposed as custo dians until the last minute. He also found that they had no standing and that the totality of the evidence directly refuted their claim that they had close contact with Emily and that they should be provided visitation.

The trial commenced on November 17, 2009, and continued on November 30 and December 7, 2009. The father remained incarcer ated but attended the trial. Dr. Katz and Dr. Weitz testified consistently with their reports. Division workers described the difficulties they had encountered with Emily's placement with her paternal grandmother.

At the conclusion of the Division's case, the father moved for a mistrial, arguing that the judge had already determined the outcome of the trial. The motion was denied and the father then took the stand. He again offered himself as a resource for Emily, stating that he would be able to care for her within the next year. He asserted that his post-conviction relief petition would be successful and that he would find housing and employ ment upon his release. He testified to the courses he took while incarcerated and his completion of an Alcoholics Anonymous program and a behavior modification program. He testified to completing his GED and his enrollment in college. He admitted to a substance-abuse problem. He opined that Emily would be harmed more from termination of her parental rights from her biological father than she would be waiting in the foster care system until he was released from prison.

The father moved to convert the guardianship to a complaint for kinship legal guardianship so that he would have the oppor tunity to seek custody of Emily when he was released from prison. He made other motions that are not material to the out come of this appeal. Each motion was denied by the trial judge. The father made two additional oral motions for a mistrial, both of which were denied.

The judge placed his findings of fact and conclusions of law on the record on December 7, 2009. He found that the Divi sion had proven each of the four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. After concluding that the Division had proven the first and second prongs, the judge addressed the third and fourth prongs.

Now, has the Division made diligent and reasonable efforts to provide services? Well, they've done so with regard to [Emily], that I know based upon the informa tion that I have, based on that other pro ceeding, I know what they've done, I know what they've tried to do with [the paternal grandmother] in order to make things better for her and get her approved and licensed. They haven't been able to provide many ser vices for [the father], he's incarcerated. There's not much you can do while he's in there.

 

So, I think the Division has done as best they can with regard to [the father] in providing services. They certainly have provided services to [Emily]. They provided services to her grandmother and we also have to think about alternatives to termination. Well, there aren't any. I guess that's as bold as I can be. KLG is not even an option. [The father's brother] isn't an option. It was clear to me in my fact[-] finding with regard to the other matter that the main involvement of [Emily] was between her grandmother and the [foster parents], that [the father's brother] was an occa sional visitor. He had no real relationship with his mother and just isn't an option in this case. Grandma was ruled out, and I won't go any further. Anybody who wants to understand that can go and get the testimony that was provided in the fact[-]finding hearing.

 

So, now we come to the final prong of what has to be proven, that termination of parental rights will not do more harm than good.

 

Dr. Katz'[s] evaluation was very instruc tive. He indicated in his report that [Emily] was very responsive to her father. She knew who he was, she was happy in his presence. They played well together, but . . . she doesn't view him as a caregiver, and that would make sense. He's never taken care of her. They've never been in that position before. He has never provided for her as a parent does so that for her not to see him as a caregiver isn't unusual, and as I remember his discussion, I characterized it as being something of a play date when the evaluation was conducted, and of course it was his opinion that should we terminate that relationship, [Emily] might suffer some small loss, as she would the loss of a friend or a playmate, but certainly not the impact of losing "father," although she knows who he is. She calls him Daddy but for her that's just a name. There is no meaning behind that.

 

It was also Dr. Weitz'[s] conclusion, very instructive, that the loss of her cur rent caregivers, to take [Emily] from her current caregivers would be, to use her own word, cataclysmic.3 She opined the fact that this is [Emily's] third placement, one with her foster parent for two and a half years, that was then taken away. Then, with her grandmother for about two years, that was then taken away. She has established a parental relationship, a viable parental relationship with the [foster parents] and to take that away at her age, currently going on seven, would lead to substantial psychological and psychiatric problems for [Emily].

Dr. Katz opines that severance of the parental relationship would have minimal impact, at best.

 

What we have, if we take the analysis of all four prongs, as required by statute, to terminate [Emily's] parental relationship with [her father] would give her the oppor tunity now for safety, stability, security and permanence, not at some future date, not if things go as [the father] anticipates, but now, here, now, today, tomorrow, yester day, and that's what the criteria is in cases like this. We must do what's in the best interest of the child and the clear and convincing testimony in this case leads me to the conclusion that the relationship between [the father] and his daughter cannot be continued and must be terminated.

The scope of our review of a trial judge's findings of fact in a termination-of-parental-rights case is a limited one. 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)). Those 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 and internal quotations omitted); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "[T]he appellate court therefore ponders whether . . . there is substantial evidence in support of the trial judge's findings and conclusions." Rova Farms, supra, 65 N.J. at 484 (citation omitted).

Deference is especially given to the trial judge's credi bility determinations because that judge had a "feel of the case" and the opportunity to observe the witnesses. N.J. Div. of Youth & Fam ily Servs. v. E.P., 196 N.J. 88, 104 (2008); accord Cesare v. Cesare, 154 N.J. 394, 411-13 (1998); N.J. Div. of Youth & Family Servs. v. M.M., 189N.J. 261, 279 (2007). Yet, "[w]here theissue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." G.L., supra, 191 N.J. at 605 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). In such a case, if the trial judge's findings are "so wide of the mark that a mistake must have been made," they are not entitled to our deference. 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) (citation and internal quotations omitted). The trial judge's legal conclusions, and the applica tion of those conclusions to the facts, however, are subject to our plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

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, 346-47 (1999). How ever, parental rights are not absolute, and the constitutional rights that surround family rights are tempered by the State's parens patriae responsibility to protect the welfare of chil dren. E.P., supra, 196 N.J. at 102 (citing K.H.O., supra, 161 N.J. at 347). That responsibility requires the State to protect the welfare of children and to terminate parental rights if the child is at risk of serious physical or emotional harm. Ibid.; Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979).

Strict standards have consistently been imposed in the ter mination of parental rights. K.H.O., supra, 161 N.J. at 347. In deciding whether to terminate an individual's parental rights, we must consider "'the nature of the right, the perma nency of the threatened loss, and an evaluation of parental unfitness.'" G.L., supra, 191 N.J. at 606 (quoting In re Adop tion of Children by G.P.B., 161 N.J. 396, 404 (1999)). When applying for guardianship, the Division is required to 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 burden of proof is on the State to establish its case by a clear and convincing standard. E.P., supra, 196 N.J. at 103; K.M., supra, 136 N.J. at 557 (cit ing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). Our Supreme Court has "held that 'all doubts must be resolved against termination of parental rights.'" E.P., supra, 196 N.J. at 102-03 (quoting K.H.O., supra, 161 N.J. at 347; citing In re Adoption of a Child by D.M.H., 135 N.J. 473, 481, cert. denied, 513 U.S. 967, 115 S. Ct. 433, 130 L. Ed. 2d 345 (1994)). The State bears a heavy burden to show that termination of parental rights is in the best interests of the child. Id. at 103 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-12 (1986)).

The best-interests standard is set forth in N.J.S.A. 30:4C-15.1(a) and establishes the proofs required to terminate parental rights:

(1) The child's safety, health or devel opment 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 separat ing the child from his resource family par ents 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 par ent 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.

The Division "bears the burden of proving each of those prongs by clear and convincing evidence." G.L., supra, 191 N.J. at 606 (citing A.W., supra, 103 N.J. at 611-12). These four factors are conduct-based. Id. at 608. They are not independ ent of each other; rather, they are "interrelated and overlap ping . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citation omitted), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive" requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (citation and internal quotations omitted).

Because only the third and fourth prongs are at issue here, we shall limit our discussion of governing case law accordingly.

Under the third prong of the best-interests standard, the Division must make reasonable efforts to provide services to help the parents 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 reunifica tion, 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. In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999). 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 & 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).

The father urges that the Division did not meet its burden to prove it had rendered reasonable efforts by clear and con vincing evidence. Specifically, he contends that the Division presented no evidence that it was prohibited from sending pro viders to Northern State Prison to educate and provide services to the father. He urges that he has expressed concern about Emily since December 3, 2005. He has taken a number of courses and undergone group counseling while in prison indicating his desire to prove himself and be a good parent. The fact that he has plans for future employment and how to raise Emily indicates that he would have been receptive to whatever programs and counseling the Division had to offer.

He also contends that the Division failed to adequately con sider alternatives to the termination of parental rights. His brother and his brother's girlfriend were not informed about Emily until she was almost two and one-half years old. This demonstrates, he urges, that the Division did not originally investigate all family options for Emily. He contends that the Division did not seek out alternative family members when the concerns about the paternal grandmother began to arise. He points out that his brother and his brother's girlfriend expressed interest to the Division about Emily and that the Division found them cooperative and their home neat and clean. As such, the Division violated its own policy of placing chil dren with relatives wherever possible, citing New Jersey Divi sion of Youth & Family Services v. K.F., 353 N.J. Super. 623, 636 (App. Div. 2002), and New Jersey Division of Youth & Family Services v. M.F., 357 N.J. Super. 515, 527 (App. Div. 2003).

The Division is not required to make every effort possible; rather, it is required only to make reasonable efforts. M.M., supra, 189 N.J. at 281. The statute defines reasonable efforts as meaning 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." N.J.S.A. 30:4C-15.1(c). Realistically, there were no reasonable means by which the Divi sion could provide services to the father as an inmate serving a lengthy jail sentence. In the opinion of Dr. Katz, the father suffers from a significant psychopathology and has a limited ability to deal with reality. He opined that with the father's mindset, the prognosis for beneficial therapeutic services was "extremely poor." In any event, the father has availed himself of remedial and therapeutic programs available during his incar ceration. He has pointed to no service that the Division may have provided that would have corrected his psychological dys functions. We are more than satisfied that the Division could not realistically provide any services to the father while he remained incarcerated other than arranging for visitation with Emily.

Furthermore, the trial judge correctly concluded that there were no alternatives to termination of parental rights. Con trary to the father's arguments, his brother and his brother's girlfriend were assessed by the Division as potential placement resources, but they were ruled out due to the credible and com petent expert opinion that Emily's best interests would be served by foster parent adoption by M.C. and J.C., especially in light of her long-term attachment to M.C. and J.C. and her tenuous rela tionship with her father's brother. The evidence at trial was unrefuted that Emily would suffer devastating consequences if she was removed from M.C.'s and J.C.'s home. We find no error in the judge's conclusion that the Division satisfied the third prong of the best-interests test by clear and convincing evidence.

Under the last prong of the best-interests standard, the overriding consideration is the child's need for permanency and stability. K.H.O., supra, 161 N.J. 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. Id. at 357-59; 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. In re Guardianship of K.L.F., 129 N.J. 32, 44-45 (1992); N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (App. Div. 2005).

"[T]ermination of parental rights 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 and internal quotations omitted). Yet, "the Division must show 'that sepa rating 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). The ultimate question is "whether a child's interest will best be served by com pletely terminating the child's relationship with that parent." Ibid.

With respect to the fourth prong, the father urges that both experts agreed that there was some type of bond between himself and Emily. He contends that the termination of his parental rights is not required because his brother and the brother's girlfriend can be caregivers and a kinship legal guardianship can be established. If necessary, he would surren der his parental rights to his brother and his brother's girlfriend.

The father fails to comprehend the significant harm Emily will suffer if her relationship with M.C. and J.C. is once again disrupted. Both experts testified that she would suffer little loss from the termination of the relationship with her father but would be devastated by loss of her relationship with M.C. and J.C. In fact, one expert opined that it would be "cataclysmic" to her psychological well-being. This testimony clearly and convincingly establishes that termination of paren tal rights will not do more harm than good. Indeed, termination of parental rights will do significantly more good than harm. We find no basis for disturbing the judge's determination under the fourth prong.

After carefully reviewing the record in light of the writ ten arguments advanced by the parties, we conclude that the remaining issues presented by the father are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(A), (E). We affirm substantially for the reasons expressed by the trial judge in his oral opinion delivered on December 7, 2009. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. See Rova Farms, supra, 65 N.J. at 483-84.

Affirmed.

1 The parental rights of J.R., the mother, were terminated by default on October 3, 2005. She has not appealed.

2 We do not have defendant's judgment of conviction in connection with the sentence imposed on October 24, 2003. The records of the Department of Corrections do not indicate whether defendant was in jail in connection with the first offense pending trial and sentencing. Thus, it is not clear why he was incarcerated at the time of Emily's birth, although it is reasonable to infer that it was in connection with the charge of first-degree robbery which resulted in the October 24, 2003, sentence.

3 It was actually Dr. Katz who used the word "cataclysmic." Dr. Weitz opined that termination of the relationship with M.C. and J.C. would have "very long term severe negative implications for [Emily]."