NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1544-11T1

A-1545-11T1

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.B. and M.B.,

Defendants-Appellants.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF K.B., JR., a minor.

_________________________________

February 6, 2013

Submitted January 23, 2013 - Decided

Before Judges Lihotz and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-92-10.

Joseph E. Krakora, Public Defender, attorney for appellant K.B. (Carol A. Weil, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant M.B. (Dianne Glenn, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Mary Jane Lembo Cullen, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.B., Jr. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In these two appeals, consolidated for purposes of this opinion by our order dated December 9, 2011, we address challenges to a Family Part judgment terminating the parental rights of defendant-father K.B., whom we fictitiously name Kurt, and defendant-mother M.B., whom we fictitiously name Marie. Further, the final judgment granted guardianship of defendants' child, K.B., Jr., whom we fictitiously name Kurt Jr., to the plaintiff Division of Youth and Family Services, now known as the Division of Child Protection and Permanency (the Division),1 for the purposes of securing his adoption. In their respective appeals, Kurt and Marie independently argue the trial judge erroneously determined the Division had provided clear and convincing evidence to prove each of the four prongs set forth in the statutory test to be granted guardianship. We have considered each of the arguments in light of the record and applicable law. We affirm.

"Parents have a constitutionally protected, fundamental liberty interest in raising their biological children." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super.376, 382 (App. Div. l998) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982)), vacated on other grounds, 163 N.J.158 (2000). "The Federal and State Constitutions protect the inviolability of the family unit." Ibid.(citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972)). However, government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State, as parenspatriae, may sever the parent-child relationship to protect a child from serious physical and emotional injury. W.P. & M.P., supra, 308 N.J. Super.at 382.

When the child's biological parents resist termination of parental rights, it is the court's function to decide whether the parents can raise the child without causing further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of our inquiry is whether parents can "cease causing their child harm" and become fit to assume the parental role within time to meet the child's needs. Ibid. "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid.

A trial court's examination in a guardianship matter focuses upon what course serves the "best interests" of the child. In re Guardianship of K.H.O., 161 N.J. 337, 343 (1999). Our Legislature requires satisfaction of the "best interests of the child" test by clear and convincing evidence before termination of parental rights can occur. N.J.S.A.30:4C-15 and 15.1a. See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.591, 612 (1986) ("The correct standard is 'clear and convincing' proof."); In re Guardianship of Jordan, 336 N.J. Super.270, 274 (App. Div. 2001) (noting the State must satisfy the best interests standard by clear and convincing evidence). The burden rests on the Division "'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of the parental ties." W.P. & M.P., supra, 308 N.J. Super.at 383 (quoting J.C., supra, 129 N.J.at 10).

Specifically, the four-prong test set forth in N.J.S.A.30:4C-15.1a requires the Division to prove:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family [formerly referred to as "foster"] parents would cause serious and enduring emotional or psychological harm to the child;

(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

See also K.H.O., supra, 161 N.J. at 347-48 (articulating the four-pronged best interest test). Thesestandards are neither discrete nor separate; they overlap to provide a composite picture of what may be necessary to advance the best interests of the child. Id.at 348. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J.127, 139 (1993)). See also N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (describing the court's inquiry as "extremely fact sensitive" (internal quotation marks and citations omitted)).

On appeal, Kurt and Marie have not challenged the trial judge's findings that the Division met its burden to satisfactorily prove prong one of the statutory best interests test; that is, the Division presented sufficient evidence to show each parent had individually endangered Kurt Jr.'s safety, health, or development. Also, defendants do not challenge the trial judge's conclusion that sufficient proof regarding prong two was presented. Thus, the Division showed by clear and convincing evidence each parent remained unwilling or unable to eliminate the identified harm facing Kurt Jr., and neither could provide a safe and stable home for the child absent significant delay in securing his permanent placement, which would further add to the harm. Rather, on appeal, Kurt and Marie focus their respective challenges on the sufficiency of the proofs regarding the third and fourth statutory prongs. In light of the tailored challenges, we abbreviate our recitation of the facts introduced at trial in support of the first two statutory prongs and focus on the evidential support submitted to prove prongs three and four.

Throughout Kurt's adult life, he has been involved in the criminal justice system. He reported eighteen criminal convictions, the most significant of which included robbery (1989), distribution of marijuana (1994), and possession of cocaine (2000). Kurt was incarcerated when Kurt Jr. was born, and thereafter was arrested and detained at least three additional times. Kurt also has a history of substance abuse including alcohol, marijuana, and crack cocaine. At the commencement of the litigation, he was diagnosed as being in early recovery from crack dependency, but suffered "poor insight, poor problem solving skills, . . . [and had] difficulty with recovery." His failure to embrace treatment predictably resulted in repeated substance abuse relapses. Further, he suffers from depression and bi-polar disorder, for which he has demonstrated an inability to consistently maintain prescribed medication.

The Division had been involved with Marie for many years prior to Kurt Jr.'s birth, as her two oldest children were removed from her care and placed with her brother subject to an order under the Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7. In the course of the prior litigations, Marie's mental health issues were identified, which included bi-polar disorder, anxiety, attempted suicide, and post-traumatic stress disorder, resulting from domestic violence at the hands of her former husband, J.B. She too was incarcerated from 2004 to 2007, prior to Kurt Jr.'s birth, and has a history of substance abuse.

When Kurt Jr. was pre-maturely born, a toxicology screening revealed the presence of benzodiazepines, resulting from Marie's use of prescription Xanax. The child experienced minor "tremorring" as a result of withdrawal and was required to be treated for respiratory distress, gastroesophageal reflux, and low birth weight.

Initially, Kurt Jr. was placed in his parents' care. However, Kurt and Marie failed to comply with services, maintain the child's medical appointments, and disregarded directions from the Division. Two recurring problems occurred. First, Kurt's and Marie's continued interaction with J.B., who regularly abused alcohol and continued his physically abusive behavior. Although the parents were told J.B. may not reside in the home with Kurt Jr., they repeatedly ignored this instruction. J.B.'s disruptive behaviors often caused Marie to lose her housing. Second, the parents continuously failed to maintain telephone communication with the Division and the service providers. The inability to contact Kurt and Marie often caused service providers to terminate their participation in rehabilitative programs.

The Division initially filed a Title 9 complaint seeking an order granting it care and supervision of Kurt Jr., pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. After a violent interaction between Kurt and Marie, the Division removed Kurt Jr. Kurt was arrested for assault and the Division directed Marie to various services. In a subsequent hearing, the court granted the Division custody of Kurt Jr. on March 16, 2009, and it placed him with a resource family, which continues to provide for his care.

The Division provided Marie with domestic violence counseling services, visitation services, transportation, parenting education, and counseling. She moved, either voluntarily or because she was evicted for non-compliance with the rules, at least eight times during the period from September 2008 through November 2011. She failed to complete any programs, and missed several visitations. Marie also continued to see J.B., despite the Division's admonishments. On several occasions, J.B. was found, apparently intoxicated, in Marie's motel room, even though his presence violated the conditions applicable to her housing. J.B. was also found waiting for Marie following her supervised visits with Kurt Jr.

Incarcerated after his assault on Marie, Kurt was released on July 8, 2009. During the pendency of the case, he was arrested at least three times for minor infractions. The Division provided him with visitation, transportation, mental health and chemically dependent (MICA) counseling, substance abuse evaluations, and monitoring of his prescription medication. Kurt failed to complete any program and often was discharged for lack of attendance.

The Division presented expert testimony regarding Kurt's and Marie's ability to parent Kurt Jr. Todd Traina, Psy.D., evaluated Marie on two occasions. He identified her lack of life stability; poor judgment, including the continued alignment with Kurt notwithstanding instances of domestic violence; and her resistance to recognize her parental failings, "instead placing blame on numerous social service organizations including the Division." Further he noted she still lacked the tools to at least recognize and take appropriate action to protect herself and any child in her care, had a "significant level of emotional disconnect" and a dearth of skills, which precluded "her from taking appropriate action in her life." Generally, Dr. Traina concluded Marie was unable to protect and care for herself, let alone her child. He opined she would "likely remain inactive and neglectful[,]" such that "[t]hose left in her care will likely remain at risk[.]"

Dr. Traina also performed a bonding evaluation between Marie and Kurt Jr. Marie was appropriate and nurturing, but was "not a consistent caregiver[.]" Although Dr. Traina concluded Kurt Jr. was positively bonded to Marie, the child demonstrated a lack of affection for his mother and a preoccupation with her "availability." Dr. Traina opined Kurt Jr. "wouldn't be securely bonded to [Marie]" and simply having a positive relationship was insufficient to support an ability to parent.

As to Kurt, Dr. Traina opined his ability to provide care for Kurt Jr. was poor given his reliance "on substance abuse as a form of self-medication[,]" "general evasiveness[,]" and "lack of integrity in his day-to-day life." These observations were reinforced by a second evaluation by Jesse Whitehead, Jr., Psy.D. He too concluded Kurt Jr. would be at risk in his father's care because Kurt had not undertaken parenting training; was unable to cope with his stress, anxiety, mild depression, past history of abusive behavior, and history of substance abuse; could not obtain stable housing or employment; and failed to consistently maintain necessary psychological and psychiatric care.

Dr. Traina also performed a bonding evaluation between Kurt and Kurt Jr. He observed, Kurt Jr. "was hesitant to enter the room[,]" "appeared scared[,]" and "continued crying for about five minutes[,]" all of which "suggested . . . he wasn't securely bonded" to Kurt. Dr. Whitehead also assessed the father-son bond, reaching similar conclusions. Although positive attributes were present, Kurt's "level of readiness to assume the role of full-time parent ha[d] not yet been achieved."

Finally, the resource parent bonding evaluation with Kurt Jr. identified a "close, intimate physical proximity" with the child "rarely . . . distressed[,]" reflecting "a healthy, secure bond[.]" Finally, Dr. Traina reported, were this bond severed, Kurt Jr. "would certainly experience a loss reaction" accompanied by "emotional and developmental regression." However, were the bond between Kurt Jr. and Marie and/or Kurt severed, the harm would not be enduring and the temporary harm would be successfully ameliorated by the resource parent.

Kurt's mother, K.S., who we will refer to as Karen, testified at trial regarding her attempts to obtain custody of Kurt Jr. She contacted the Division on March 16, 2009, expressing interest in caring for her grandson. She lived in Florida and worked as a nurse's aide. Pursuant to the Interstate Compact on the Placement of Children (ICPC), N.J.S.A. 9:23-1 to -18, the Division requested the Florida Department of Children and Families to evaluate Karen's home, which she shared with her husband, Kurt's step-father, as a potential placement. The Florida authorities contracted a private agency to conduct a home study, which reported "the family should be able to meet criteria for licensure pending the results of a background screening, [Model Approach to Partnerships in Parenting (MAPP)] training[,] and Home Study packet . . . complet[ion]." Karen was scheduled for the required foster parent orientation and training. However, she began a new job requiring "extended hours from Sunday through Thursday[,]" and felt "unable to meet the commitment of the MAPP training[.]" Because completion of the training program was a prerequisite, Karen was told "a denial letter [would] be submitted to . . . New Jersey to close out this ICPC request[.]" On August 12, 2009, the Florida Department of Children and Families notified the Division it had denied Karen's application for licensure.

On February 22, 2010, Kurt told the Division Karen had "changed her mind and [wa]s willing to take in [Kurt Jr.] if needed." He was advised that the Division had received no notice of Karen's reconsideration since she reported her work conflict precluded her ability to care for him. The Division followed-up by sending a notification letter to Karen, explaining:

The Division has determined that you, the paternal grandparent[] . . . are either not willing or not able to provide a home for [Kurt Jr.] On 8/12/09, Interstate notified the Division that you recently started a new job that requires extended hours from Sunday through Thursday and that you felt you were unable to meet the commitment of the MA[P]P training due to your work schedule. Interstate services were terminated.

If you disagree with this decision, you may, within 20 days of the date of this letter, request a review of the decision . . . . Please be aware of the possibility that termination of parental rights may occur if the child remains in the Division's care for more than six months, and that the child may be placed for adoption.

Karen did not respond to the Division's inquiry. A second letter was sent by the Division on July 28, 2010, after Kurt listed her as a possible placement for Kurt Jr. The Division repeated Karen's licensure denial resulted "due to [her] employment schedule[,]" and asked "[i]f . . . you are now able and interested in caring for [Kurt Jr.], please contact the Division."

During the guardianship litigation, Karen testified she expressed her desire to care for Kurt Jr. immediately following his March 12, 2009 foster placement. She explained she had recently obtained physical and legal custody of her other grandson after securing Florida Social Services approval. She asserted she was willing to adopt Kurt Jr. immediately.

Karen acknowledged she was informed she must complete training courses prior to receiving authorization for Kurt Jr.'s placement. She admitted "when they wanted me to go to all this schooling down here, . . . that was the problem[.]" Finally, Karen divulged when Kurt was released from prison she was convinced "everything was going to go all right[,]" which she understood to mean "he was going to get the child[.]" She stated "I didn't want to take the classes in vain if I wasn't getting the child, and they still told me it would be about six more months . . . and I'm thinking, [Kurt] is out; why should I do that?"

Karen's testimony also made clear she had never seen Kurt Jr., believed the resource parent had developed a bond with the child, and recognized his medical conditions required specialized training, which she had not completed. Tellingly, when asked whether she would be willing to come visit Kurt Jr. in the near future, Karen responded: "If I have to."

Following trial, the judge reviewed the evidence provided by the parties and set forth specific factual findings, concluding the Division proved each prong of the statutory best interests test as to each parent. The trial judge determined the clear and convincing evidence showed termination of parental rights was in the child's best interest and granted the Division's request for guardianship to facilitate Kurt Jr.'s adoption. Kurt and Marie independently appealed from the final judgment.

The scope of our review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citations omitted). We accord particular deference to the trial judge's factfinding "'[b]ecause of the family courts' special jurisdiction and expertise in family matters[.]'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare, supra, 154 N.J. at 413). Reversal is warranted only when a trial court's findings are "so wide of the mark that a mistake must have been made[,]" M.M., supra, 189 N.J. at 279 (quotation marks and internal citation omitted), including factual findings "'so manifestly unsupported by or inconsistent with the com petent, 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) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). See also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (discussing "limited" appellate review).

In our review, we are also obliged to accord deference to the trial judge's credibility determinations. M.M., supra, 189 N.J. at 279. Such deference is appropriate because the trial judge has "a 'feel for the case'" and is in the best position to "make first-hand credibility judgments about the witnesses who appear on the stand[.]" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). Consequently, when a reviewing court concludes there is satisfactory evidentiary support for the trial court's findings, "'its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal.'" Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

When "the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." M.M., supra, 189 N.J. at 279 (quotation marks and internal citations omitted). See also G.L., supra, 191 N.J. at 605 (discussing expanded scope of review). In such instances, deference is appropriately accorded to factfinding; however, the trial judge's legal conclusions, and the application of those conclusions to the facts, are sub ject to our plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Our review of a trial court's legal conclusions is always de novo. Ibid.

On appeal, Marie maintains the Division's efforts to extend effective services to her were inadequate. "The third prong of the best interests standard requires the Division to make 'reasonable efforts to provide services to help the parent correct the circumstances' that necessitated removal and placement of the child [with a resource parent]." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 487-88 (App. Div. 2012) (quoting N.J.S.A. 30:4C-15.1a(3)). Reasonable efforts depend upon the facts and circumstances of each case, D.M.H., supra, 161 N.J. at 390, and "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." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 441 (App. Div. 2009) (internal quotation marks and citations omitted). The specific services, designed 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 reasonableness of the Division's efforts "is not measured by their success[,]" D.M.H., supra, 161 N.J. at 393, rather the court must consider whether the parent actively participated in the reunification effort. Id. at 390. Ultimately, "[t]he failure or lack of success of [the Division's] efforts does not foreclose a finding that the Division met its statutory burden to try to reunify the children with the family." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div.) (citing D.M.H., supra, 161 N.J. at 393), certif. denied, 192 N.J. 68 (2007)).

Here, we reject Marie's argument suggesting the Division inadequately addressed her need to obtain "adequate housing, transportation to the services, and most importantly, domestic violence services." The record reflects the Division's attempts to direct Marie to domestic violence counseling immediately following the altercation with Kurt that necessitated Kurt Jr.'s removal. Although Marie initially attended, she was discharged for lack of participation. Other programs were arranged and the result was the same. Marie never completed any educational program or counseling arranged to assist her. Further, she minimized the severity of the domestic violence and vacated the restraining order against Kurt, against the Division's recommendation.

The Division also offered a myriad of transportation services in its effort to separate Marie from J.B. Despite the Division's attempts, Marie continued to seek transportation and other assistance from J.B. Marie's housing troubles also resulted from her insistence on keeping a connection with J.B. even though she understood program rules prohibited his presence in her room. Division caseworkers repeatedly advised both Marie and Kurt they needed to apply for housing assistance programs and comply with the program's rules and regulations.

No matter the program, Marie was non-compliant and was repeatedly discharged for non-attendance. The record lists the Division's attempts, which were exhaustive, surpassing the standard dictated by the third prong of the statute.

Kurt's third-prong challenge attacks the Division's consideration of his mother as a resource placement for Kurt Jr. He argues Karen "was approved by the Florida Interstate evaluation[,]" but the Division denied her licensure to care for Kurt Jr. We reject this contention.

In providing reasonable efforts to achieve reunification between parent and child, designed "to assist the parent to correct the circumstances which led to the child's placement, 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) (citing N.J.S.A. 30:4C-15.1a(3)), certif. denied, 171 N.J. 44 (2002). "This includes relative placements for the child that would obviate the need for termination of parental rights and adoption." L.J.D., supra, 428 N.J. Super. at 488-89. The statute clearly requires the Division to "initiate a search for relatives who may be willing and able to provide the care and support" of the child removed from his or her home. N.J.S.A. 30:4C-12.1.

In this matter, Karen's request to serve as a placement resource for Kurt Jr. was immediately considered. Early on, the Division initiated an interstate review, which was thwarted by Karen's ambivalence; first due to employment demands, and later because she believed Kurt would assume custody. Although Karen removed herself from consideration by not completing the required training, the Division again inquired whether she would reconsider and undertake prerequisite steps to obtain approval for custody. She never did so.

The fact Karen later achieved Florida licensure regarding her care of a different grandchild does not alter her failure to comply as directed by the Division. Moreover, Karen did not reveal she had been licensed until presenting her trial testimony, making it impossible for the Division to act. The Division fully complied with N.J.S.A. 30:4C-12.1b and the regulations promulgated thereunder.

Kurt also asserts the Division did not satisfy its burden under the fourth prong. This prong of the best interests standard requires the Division to prove "the child will not suffer greater harm from the termination of ties with his biological parent than from the permanent disruption of his relationship with his resource family." L.J.D., supra, 428 N.J. Super. at 491 (citing K.H.O., supra, 161 N.J. at 355). See also N.J.S.A. 30:4C-15.1a(2) (citing "evidence that separating the child from his resource . . . parents would cause serious . . . harm"). The question to be addressed is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with h[is] natural parents than from the permanent disruption of h[is] relationship with h[is resource] parents." K.H.O., supra, 161 N.J. at 355. The overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. If a child can be returned to the parental home without endangering the child's health and safety, the parent's right to reunification takes precedence over the permanency plan. A.W., supra, 103 N.J. at 607-09.

The credible expert testimony evinced separating Kurt Jr. from his resource parent "would cause serious and enduring emotional or psychological harm." J.C., supra, 129 N.J. at 19 (citation omitted). The experts agreed Kurt could not independently parent Kurt Jr., and the two had a positive but insecure bond. Kurt had not properly addressed, let alone resolved, his substance abuse and mental health issues. Moreover, he failed to undertake the rudiments of parenting education, and could not secure stable housing or maintain employment. We do not doubt the sincerity of his expressions of love and devotion to Kurt Jr.; however, Kurt has been unable or unwilling to muster the fortitude essential to safe and secure parenting by eliminating the behavior that caused the child's placement. Kurt Jr.'s need for a permanent, secure placement was of paramount importance, transcending the continued efforts to foster the fragile bond he held with his father.

The evidence in this record clearly and convincingly supports the trial judge's findings and conclusions that Kurt Jr. had a "healthy" and "secure[,]" bond with his resource parent, who desired to adopt him; that the bond with Kurt was insecure and weak; that if the bond between Kurt Jr. and his resource parent were broken, the child would experience longstanding harm affecting his physical and emotional well-being; and any loss following termination of parental rights would be ameliorated by the efforts of the resource parent and would not be enduring. Therefore, termination of parental rights would not do more harm than good. Accordingly, the award of guardianship predicated on those findings is legally sound and must be affirmed. N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part, 179 N.J. 264 (2004).

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, including the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10b).