DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.V.W., M.A., and A.S IN THE MATTER OF THE GUARDIANSHIP OF A.N.T.S. and A.N.A Minors

 

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-3070-14T1

A-3071-14T1

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

T.V.W., M.A., and A.S.,

Defendants-Appellants.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.N.T.S. and A.N.A.,

Minors.

__________________________________________________

March 10, 2016

 

Submitted February 9, 2016 Decided

Before Judges Yannotti, St. John, and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FG-04-168-14.

Joseph E. Krakora, Public Defender, attorney for appellant M.A., A-3002-14 (Eric R. Foley, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant T.V.W., A-3070-14 (Catherine Reid, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant A.S., A-3071-14 (Jennifer M. Kurtz, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa A. Raksa, Assistant Attorney General, of counsel; Michelle Perry-Thompson, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In these three appeals, which we have consolidated for purposes of this opinion, defendants T.V.W. (Tara),1 M.A. (Mark), and A.S. (Andy), appeal from the Family Part order of February 17, 2015 terminating their parental rights to A.N.T.S. (Amy), the child of Tara and Andy, and A.N.A. (Anna), the child of Tara and Mark. Defendants challenge the trial judge's finding that the State proved the four prongs of the statutory best interest test set forth in N.J.S.A. 30:4C-15.1(a). We affirm.

I.

Tara's history with the Division of Child Protection and Permanency (Division) began as a child,2 when she was removed from her mother's care and placed in a foster home at the age of seven. Tara moved back with her mother in March 2007, and at the age of seventeen, gave birth to her first child, Greg.

Although Mark is not Greg's father, he moved in with Tara when she was five months pregnant with Greg. Shortly after Greg's birth, Tara became pregnant with Anna. In February 2008, thirty-two weeks into her pregnancy, Tara had a physical altercation with Mark and suffered a head laceration. Mark was charged with aggravated assault, and Tara and Greg were removed from the home and placed in foster care by the Division. After two weeks, Tara ran away from the foster home with Greg and eventually moved in with her sister. Anna was born in April 2008.

In April 2009, the Division received a referral alleging Tara left Anna in the care of the referent and refused to take the child back. Although the Division did not substantiate neglect, it re-opened its case to provide services to Tara and the children.

Tara was referred for a psychological evaluation by Meryl E. Udell, Psy.D. Dr. Udell diagnosed Tara with post-traumatic stress disorder and recommended that she participate in the Healthy Mothers/Healthy Babies program, have random urine screens, and that the children be enrolled in daycare. Tara was also referred to the Treatment Alternatives for Children at Risk program at the Center for Family Services.

In July 2009, the Division received another referral that Greg had been found alone on a street corner with a dirty diaper and no shoes. A caseworker investigated and learned that both Tara and Mark were in jail on drug charges, and Greg and Anna were left in the care of Tara's mother (maternal grandmother), who appeared to be under the influence of drugs or alcohol. The home was in a "deplorable condition" and the maternal grandmother was substantiated for abuse. The children were removed and placed in foster care.

On October 29, 2009, the children were placed in the custody of M.W., their maternal great-grandmother. Tara was released from prison in October 2009, and was granted supervised visitation and referred for an updated psychological evaluation by Dr. Udell. Udell recommended that Tara's contact with the children continue to be supervised "until she has demonstrated an additional period of time of stability and conscientious attention to her children's needs."

In 2010, Tara began a relationship with Andy and became pregnant with Amy. Greg and Anna were returned to Tara's custody in July 2010. In August 2010, Tara was sentenced to probation for distributing a controlled dangerous substance (CDS) in a school zone. In September 2010, Amy was born.

In November of 2010, Tara was incarcerated for violating probation. Greg and Anna stayed with M.W., and Amy was cared for by Andy's sister, T.S. Tara was again incarcerated from December 30, 2011 until January 13, 2012. Family members cared for the children during her absence.

In January 2012, Tara and the children moved in with her sister. In May 2012, the Division assisted Tara with housing, paying her first month's rent and security deposit. The Division closed its case in May 2012. Tara and the three children left the apartment and moved in with her boyfriend, I.G., who was on probation for drug offenses.

In October 2012, the police were called to I.G.'s home following a physical altercation between Tara and I.G.'s former girlfriend. During the fight, the girlfriend cut I.G. with a knife and broke a glass table. Shortly thereafter, the Division received a referral from Cooper University Hospital, where Tara had been admitted to the psychiatric unit after stating that she attempted suicide. A caseworker responded and learned that the children witnessed the fight. Anna described the fight to a caseworker as "so scary," saying there was blood everywhere and she heard a lot of cursing and things breaking.

The Division deemed it unsafe for the children to remain in I.G.'s home and removed them. The whereabouts of Mark and Andy, the fathers of Anna and Amy, were unknown at the time of removal. Anna and Amy were placed together in a foster home, and Greg was placed in a separate resource home.

The Division learned that Andy was incarcerated and produced him at the November 2, 2012 hearing on the order to show cause; Mark did not appear. After the court appearance, Tara was arrested on another probation violation and subsequently spent six weeks in jail. Tara was released in December 2012 and began weekly supervised visits with the children. The Division located Mark, who also began visitation.

In November 2012, Dr. Alan J. Lee conducted a psychological evaluation of Tara and diagnosed her with depressive disorder, anxiety disorder, and personality disorder, with borderline, antisocial and narcissistic features. Dr. Lee noted a history of substance abuse that adversely affects Tara's ability to care for her children. He expressed doubt regarding reunification and suggested that other permanency plans should be considered due to Tara's "poor prognosis for significant and lasting changes."

After a psychiatric evaluation in February 2013, Tara was prescribed psychotropic medication and referred to the Camden County Women's Center for domestic violence counseling. She also attended individual therapy at Delaware Valley Psychological Services and parenting classes at Velez Professional Services. Although she attended some sessions, Tara was terminated from both programs for noncompliance.

In June 2013, Tara, who was pregnant with her fourth child, was arrested for possession of heroin and spent one month in jail. Tara gave birth to that child in September 2013. In November 2013, Tara was again incarcerated on a charge of conspiracy to distribute CDS. After a period of being uninvolved, Mark resumed supervised visitation with Anna. Later that month, Andy was released from jail.

On February 11, 2014, the court entered an order approving the Division's revised permanency plan to seek termination of parental rights followed by resource parent adoption for Amy and Anna and select home adoption for Greg. The judge found it would not be safe to return the children home in the foreseeable future because Tara was incarcerated, Mark and Tara had not completed services, and Andy's whereabouts were unknown.

The guardianship trial as to Anna and Amy began in October 2014. On February 17, 2015, the judge entered an order terminating the parental rights of Tara and Mark, as to Anna, and Tara and Andy, as to Amy.

II.

As a threshold matter, we are guided by the principle that "[p]arents have a constitutionally-protected, fundamental liberty interest in raising their biological children, even if those children have been placed in foster care." In re Guardianship of J.C., 129 N.J. 1, 9 (1992). The State's parens patriae responsibility to protect the welfare of children "is limited to situations in which the state has demonstrated that the child's parent or custodian is unfit, or that the child has been neglected or harmed." Id. at 10.

A trial court's decision to terminate parental rights is subject to a deferential standard of review. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). We defer to the trial court's factual findings so long as they are supported by adequate, substantial, and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

The statutory best-interests-of-the-child standard provides that parental rights may be terminated when

(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;

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

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

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

"The Division bears the burden of proving by clear and convincing evidence that the four statutory criteria are satisfied." M.M., supra, 189 N.J. at 280.

Prong One

Tara challenges the trial judge's findings under prong one that the children were harmed by her unaddressed substance abuse; by her mental health issues; by her repeated and lengthy periods of incarceration; and by the partners she chose to reside with.

Andy argues that his incarceration is insufficient to prove harm under the first prong of the best interests test. He characterizes his failure to contact Amy upon his release from prison as a "brief delay while [he] attempted to get settled, comply with conditions of his release and get back on his feet," and argues that the delay does not constitute a withdrawal of nurturance, care or love for a protracted period. He contends that he had a safe and stable home for Amy both before and after his release from prison because Amy could have been placed with his sister, T.S.

Mark does not challenge the trial court's finding that he endangered Anna's safety, health, or welfare and, thus, he has waived this issue. Liebling v. Garden State Indem., 337 N.J. Super. 447, 465-66 (App. Div.), certif. denied, 169 N.J. 606 (2001).

Harm, under the first prong of the best interests test, "involves the endangerment of the child's health and development resulting from the parental relationship." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid. The mental health of the child and its best interest psychologically must always be considered. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986). "A parent's withdrawal of [his] solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

As to Tara, the Division relied on the expert testimony of psychologist, Dr. Jamie Gordon-Karp, who indicated in her report that Tara has a history of drug use. Dr. Gordon-Karp noted that Tara "wholeheartedly denied having used drugs," but her grandmother previously reported her drug use and Tara was incarcerated in November 2013 on "drug sting" charges. There was also an indication in the record that Tara tested positive for cocaine. A substance abuse assessment form completed on January 8, 2013 indicated Tara first used opiates at age thirteen, and admitted taking "a lot" of Vicodin when she attempted suicide. The assessment also indicated that Tara "under-reported her use." After this assessment, Tara was referred for treatment, but did not attend.

Dr. Gordon-Karp found that Tara "has serious mental health issues" based on her attempted suicides and cutting behavior. She noted that Tara admitted to a history of depression and had been diagnosed with various mental disorders. Dr. Gordon-Karp's psychological testing suggested that Tara suffers from anxiety disorder and post-traumatic stress disorder. Dr. Gordon-Karp concluded that Tara is unfit to parent based on her history with the Division as a child, her criminal and substance abuse history, her history of violence, her serious mental health issues, and her poor choices in selecting romantic partners.

Dr. Lee also found that Tara has "some history of substance abuse" and that her "many maladaptive personality and character traits . . . have, and will continue to, adversely affect her ability to provide appropriate care . . . to one or more minor children[.]"

The trial judge found that Tara's repeated incarcerations harmed the children because they rendered her unavailable to care for them for protracted periods of time. The record amply supports this finding.

In 2009, Tara was arrested on drug charges and spent four to six months in custody. Tara left Greg and Anna in her mother's care, who Tara knew to have substance abuse issues. Tara's mother was subsequently substantiated for abuse of the children, resulting in another removal and replacement.

Shortly after Amy was born in September of 2010, Tara was again incarcerated for a probation violation. After the children were removed in October 2012, Tara was arrested for a probation violation and spent six weeks in jail. From February 8, 2013 to April 6, 2013, she was incarcerated for a probation violation. She was again arrested in June 2013 for possession of heroin and spent one month in jail. She was subsequently incarcerated for over one year from November 14, 2013 until December 17, 2014 for conspiracy to distribute CDS and two probation violations.

"Clearly the incarceration of a parent is a relevant factor in determining whether the parent-child relationship may be terminated." In re Adoption of Children by L.A.S., 134 N.J. 127, 135 (1993). Two factors courts must consider in determining whether a parent's incarceration has harmed her children are (1) "the need of the children for permanency and stability and whether continuation of the parent-child relationship . . . will undermine that need," and (2) "the effect that the continuation of the parent-child relationship will have on the psychological and emotional well-being of the children." Id.at 144. Tara was arrested for possession of heroin eight months after her children had been placed in foster care. The arrest came after five other periods of incarceration over the previous four years, and led to her thirteen-month incarceration beginning in November 2013. Thus, Tara's incarcerations undermined Amy and Anna's need for stability and delayed any chance of reunification for approximately eighteen months.

While Tara's mental health, substance abuse, and choice of partner issues identified by the trial judge, standing alone, might not provide a sufficient basis to satisfy prong one, when considered together with her repeated incarcerations, they adequately support a finding that the children were harmed by her behavior.

Although Andy appeared at the hearing on the order to show cause, after the children were removed from Tara's care, he waived his appearance at future hearings. During the three years he was in prison, Andy did not ask the Division to arrange visitation with Amy, and there is no evidence that he contacted Tara or the Division to inquire about Amy's well-being.

Andy did identify his sister, T.S., as a possible placement option for Amy, but never contacted his sister. After he was released from prison, Andy still made no effort to contact the Division to inquire about Amy's well-being, or to request visitation, even though he knew Amy was in foster care. His participation in this litigation was the result of the Division's efforts to locate him. He attempts to explain this as a brief delay while he attempted to get back on his feet. However, he had not seen his daughter in three years and testified he was staying with his mother after his release.

Andy's lengthy incarceration during which he made no effort to have any contact with his daughter, when viewed together with his failure to make any effort to contact Amy after his release, constitutes a withdrawal of solicitude, nurture, and care that is sufficient to satisfy prong one.

The trial judge's finding that the first prong of the best interests test was satisfied as to all three parents is supported by clear and convincing evidence in the record.

Prong Two

Tara argues that the trial judge's speculation that she was not motivated to complete services and might again be incarcerated was inappropriate in a termination analysis. She further contends that the judge's conclusion that she had not complied with services is not supported by the record.

Mark argues that the trial judge's finding that he was unable to repair his relationship with Anna "is tainted by the interference and pattern of alienation by the foster parents." He claims he "did not have a fair and reasonable opportunity to repair and strengthen his relationship with [Anna]." He also argues that, although he has not "remedied" his marijuana use, there is evidence that he can provide a safe and stable home for Anna because he is currently living with and raising his three-month old son. He claims the Division never visited his two-bedroom townhome and that the court's finding that he does not have room for Anna is "entirely baseless."

Andy argues that his inability to provide his own home for Amy is irrelevant because his sister can provide a safe and stable home. He claims that his participation in the guardianship litigation, and his care of Amy for the two months after her birth, demonstrate that he is able to eliminate any harm Amy suffered from his incarceration. Andy further argues that the trial judge improperly admitted evidence of his criminal record and improperly relied on this evidence to conclude that he is likely to be incarcerated in the future.

Under the second prong of the best interests test, courts must determine "whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care." A.W., supra, 103 N.J. at 607. The second prong

may be met by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child.

[K.H.O., supra, 161 N.J. at 353.]

It may also be satisfied if "the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of her bond with foster parents[.]" Id. at 363. Children have "the right to a permanent, safe and stable placement" and "[t]he emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004).

Here, Tara was unable to complete counseling and parenting classes because, thirteen months after the children were removed, she was again incarcerated. Caseworker Debra Nelson Munoz testified that Tara participated only sporadically in services, and Division contact sheets from February and March of 2013 note that she was noncompliant. When taken together with Dr. Gordon-Karp's testimony that Tara would require at least a year of services before she could reunite with her children, the trial judge's conclusion that Tara will not cease causing harm to the children is supported by record evidence.

Mark admits that he has not "remedied his marijuana use" but argues he can provide a safe and stable home for Anna. Record evidence demonstrates that Mark failed to engage in court-ordered substance abuse treatment and that he does not believe he has a substance abuse problem, despite admitting that he smokes "one to three blunts a day" to relieve stress. In New Jersey Division of Youth and Family Services v. T.S., we held that

parents dabbling with addictive substances must accept the mandate to eliminate all substance abuse. Such unabated behavior initiates the foster care placement of their children and causes continuing harm by depriving their children of necessary stability and permanency. . . . [T]he delayed reunification, accompanied by the concomitant consequence of allowing the child's attachment to a resource caregiver continues the significant harm to the child in satisfaction of N.J.S.A. 30:4C-15.1(a)(2).

[ 417 N.J. Super. 228, 245-46 (App. Div. 2010) certif. denied, 205 N.J. 519 (2011).]

Mark's refusal to address his drug use is sufficient to satisfy the second prong of the best interests test. His argument that the Division failed to assess his home is without merit. He testified that he was unemployed, did not have room for Anna in his home, and does not hold himself out as a plan for her.

Andy relies on State v. P.S., 202 N.J. 232 (2010), to argue that the trial judge improperly admitted, and relied on, evidence of his past criminal record to conclude that he could not eliminate the harm to Amy because he was likely to be incarcerated in the future. Although a court may determine that particular evidence should be excluded under N.J.R.E. 403, "in civil proceedings for the protection of a child, a parent or guardian's past conduct can be relevant and admissible in determining risk of harm to the child." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 573 (App. Div. 2010). In I.H.C., we held that a defendant's prior acts of domestic violence were properly admitted "where expert testimony . . . provided support for a finding that defendant's prior acts of domestic violence show his disposition to commit such violence[.]" Id.at 576.

Here, the trial judge admitted evidence of Andy's criminal historyand found that no expert testimony was needed "on the subject of propensity" because the judge could draw an inference based on Andy's prior convictions. Andy's criminal record includes five arrests for possession of CDS with intent to distribute beginning in 1996. He was sentenced to two five-year and one four-year prison terms in 2006. He was subsequently convicted of unlawful possession of a weapon and sentenced to a five-year term that began on November 23, 2010, two months after Amy was born. Since 1996, Andy has spent much of his life and most of his daughter's life in custody. The judge's conclusion that Andy is likely to reoffend and return to prison, continuing the harm to Amy, finds ample support in the record.

Under the second prong of the best interests test, we may consider whether the record supports a finding that separating Anna and Amy from their foster parents would cause severe and enduring harm to the girls. N.J.S.A.30:4C-15.1(a)(2). Both Dr. John Quintana and Dr. Gordon-Karp testified that this was the case, and that Tara and Andy would be unable to ameliorate the harm. Because "evidence that separating [a] child from [her] resource family parents would cause serious and enduring emotional or psychological harm to the child" is sufficient to establish the second prong of the best interests test, ibid., we are satisfied that the trial judge's finding as to all three parents is supported by clear and convincing evidence.

Prong Three

Tara argues that the Division did not make reasonable efforts to provide her with services while she was incarcerated.

Andy argues that the trial court incorrectly found that the Division was not required to provide services to him because he was incarcerated and notes the Division made no effort to contact him or facilitate contact between him and Amy during that period. He also claims the Division did not offer him services after his release.

Relying on New Jersey Division of Youth and Family Services v. I.S., 202 N.J. 145, 178-180 (2010), D.M.H., supra, 161 N.J. at 387-89, and New Jersey Division of Youth and Family Services v. L.M., 430 N.J. Super. 428, 455 (App. Div. 2013), Mark argues that the Division failed to provide him, Tara, and Andy with a meaningful opportunity to cultivate a relationship with the children, and the foster parents prevented them from developing such a relationship.

Under the third prong of the best interests test, the Division must prove that it "has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home." N.J.S.A. 30:4C-15.1(a)(3). "Reasonable efforts" include, but are not limited to

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

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

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

(4) facilitating appropriate visitation.

[N.J.S.A. 30:4C-15.1(c).]

"Whether particular services are necessary in order to comply with the [reasonable] efforts requirement must . . . be decided with reference to the circumstances of the individual case before the court[.]" D.M.H., supra, 161 N.J. at 390. The Division

must encourage, foster and maintain the bond between the parent and child as a basis for the reunification of the family. [It] must promote and assist in visitation and keep the parent informed of the child's progress in foster care. [It] should also inform the parent of the necessary or appropriate measures he or she should pursue in order to continue and strengthen that relationship and, eventually, to become an effective caretaker and regain custody of his or her children.

[Id. at 390.]

There is no dispute that the Division did not contact Tara while she was incarcerated to attempt to provide visitation or other services. Similarly, the Division provided no services to Andy during his incarceration and the only post-release service he received was supervised visitation.

The Division is "necessarily impeded by the difficulty and possible futility of providing services to an incarcerated person[.]" N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 557 (2014). However, "[a]bsent an order under N.J.S.A. 30:4C-11.3, [it] may not ignore requests or avoid providing services to an incarcerated parent." Id. at 558.

The trial court found that Andy did not request services or visitation while incarcerated, and he failed to maintain contact with Amy during that period. Nor did he contact the Division upon his release to request services or visitation, and he has never held himself out as a placement option for his child. We therefore reject Andy's argument that the Division did not provide adequate services. See T.S., supra, 417 N.J. Super. at 242-43 (rejecting a challenge to lack of services where defendant was incarcerated and had "no relationship with [the child] and could not offer the child permanency").

As to Tara, we are satisfied that the Division made reasonable efforts to provide her with services from the time the children were removed in October 2012, until she was incarcerated in November 2013. She was referred for psychological, psychiatric, and substance abuse evaluations, individual counseling, domestic violence counseling, and parenting classes. She was also provided weekly visitation. The Division's failure to provide visitation while Tara was incarcerated does not diminish the substantial efforts it made in support of her reunification with the children.

In addition, the experts agree that Anna and Amy view their foster parents as their psychological parents and would suffer severe and enduring harm if removed from them. The girls are not bonded to Tara, and Amy has no attachment to Andy.

We find no evidence in the record to support Mark's claim that the foster parents interfered with his relationship with Anna. While the foster parents may have made some inappropriate comments to the girls about visiting their fathers, there is no proof that the Division failed to provide Mark with a meaningful opportunity to cultivate a relationship with Anna.

Mark does not argue that the Division failed to provide him with appropriate visitation; in fact, he failed to attend visitation for months at a time. Therapeutic visits were provided for Mark after Anna expressed an unwillingness to visit with him.

Anna was fifteen months old when Mark was incarcerated and he was not released until just before her fourth birthday. After his release, he visited her on weekends for three months, but did not see her from June to December 2012. He resumed visits but stopped again in July 2013. He did not resume visits until November 2013.

Beginning in March 2014, the Division began to provide therapeutic visitation to help Anna address her reluctance to attend the visits, but Mark missed visits in April, May, June and August of 2014.

The trial judge recognized that the foster parents may have made inappropriate comments to the children but found that Mark "sabotaged" his own relationship with Anna by being unavailable to her. The record amply supports this finding.

Defendants argue that the Division failed to consider alternative placements for the girls. They contend that the Division was obligated to investigate T.S. as a placement option in November of 2012, even though Andy failed to provide her contact information and his paternity had not yet been determined. Defendants challenge the trial court's finding that Andy failed to cooperate with paternity testing, and note that the Division was aware that Andy was incarcerated and did not make any attempt to establish paternity until January 2014.

Defendants further argue that the Division did not appropriately investigate and rule out M.W., the maternal great-grandmother; D.M., a former foster mother to Tara; B.O., Mark's sister; or Theresa S., Tara's godmother. Tara argues that the record "was far too scant for the trial court to determine whether these relatives were reasonably ruled out."

A court is required to consider alternatives to the termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3). "[A]ssessment of relatives is part of the Division's obligation to consult and cooperate with the parent in developing a plan for appropriate services that reinforce the family structure." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 583 (App. Div. 2011). "The Division is not required to file a petition for termination of parental rights if it has been unable to provide services it deems necessary for the safe return of the child, N.J.S.A. 30:4C-15.3(c), and the Division should not proceed when it has not met its obligation to assess a relative[.]" Ibid.

N.J.S.A. 30:4C-12.1(a) requires the Division to initiate a search for relatives who may be willing and able to provide the care and support required by the child within thirty days of accepting a child into its care or custody. The Division must assess each interested relative and, if it determines that the relative is unable or unwilling to care for the child, inform them of its reasons for a denial of placement. N.J.S.A. 30:4C-12.1(a)-(b). "It is the policy of [the Division] to place, whenever possible, children with relatives when those children are removed from the custody of their parents." N.J. Div. of Youth & Family Servs. v. K.F., 353 N.J. Super. 623, 636 (App. Div. 2002).

"The Division's statutory obligation does not permit willful blindness and inexplicable delay in assessing and approving or disapproving a relative known to the Division[.]" K.L.W., supra, 419 N.J. Super. at 582. It cannot ignore relatives "based upon an arbitrary, preordained preference for the foster placement" and "must perform a reasonable investigation of . . . relatives that is fair, but also sensitive to the passage of time and the child's critical need for finality and permanency." N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 87 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014).

Parents cannot "expect the Division to locate a relative with no information" and cannot "wait until the eve of the guardianship trial to identify a relative who is willing to adopt." K.L.W., supra, 419 N.J. Super. at 582. "[T]here is no presumption in favor of placement with relatives[.]" Id. at 580. The Division may decline to place a child with a relative if it determines that the relative is unwilling or unable to care for the child or that it is not in the child's best interests. J.S., supra, 433 N.J. Super. at 85; N.J.S.A. 30:4C-12.1.

Andy's sister, T.S., was presented to the Division as a placement option for Amy in November 2012. However, Andy's paternity of Amy was not established at that time, and Tara had expressed doubt that Andy was Amy's father.

On November 2, 2012, the judge ordered a paternity test to determine if Andy was Amy's father and separately ordered an assessment of T.S. for possible placement of Amy. A report prepared by a Division caseworker indicates that the "judge stated that paternity would need to be determined first before [T.S.] is looked into, however the Division can still get [T.S.'s] information in the meantime." However, the order did not specifically condition the evaluation of T.S. on the confirmation of Andy's paternity. Andy failed to provide contact information for T.S., and the Division did not complete the paternity test until the summer of 2014.

Although Anna and Amy were removed from Tara's custody in October 2012 and the guardianship complaint was filed on March 28, 2014, Mark did not offer his sister, B.O., as a placement option until the summer of 2014. Moreover, there is no evidence in the record that Anna is familiar with B.O. Mark does not argue that the girls should be placed with B.O.; only Tara argues that the Division was required to explore B.O. as a placement option.

The Division was not informed of Tara's godmother until May 2014, two months after the guardianship complaint was filed, and nothing in the record suggests that she had a close relationship with the children. Likewise, it was not established that D.M. had a close relationship with the children, and the Division ruled her out for potential placement in February 2014 because she did not have adequate bedroom space. Although the court ordered the Division to contact D.M. when it was learned that she moved to a larger home, the record shows that D.M. did not return at least three phone calls from the Division with regard to a follow-up assessment. Based on these facts, the trial judge declined to permit a re-evaluation of D.M. unless D.M. contacted the Division. There is no evidence that this occurred.

Finally, the last time M.W. served as a placement was in 2009, when Anna and Greg were placed with her. Caseworker Siomara Wedderburn testified at trial that M.W. was ruled out on November 27, 2013 and sent a rule-out letter, although the letter was not produced at trial.

With regard to B.O., D.M., and Tara's godmother, the Division is not obligated to explore relatives who are identified by parents at the last minute. K.L.W., supra, 419 N.J. Super. at 582. Even if the Division failed to promptly evaluate T.S. and M.W. as placement options for Anna and Amy, there has been no showing that it is in their best interests to remove them from foster parents with whom they have admittedly bonded. "Delay of permanency or reversal of termination based on the Division's noncompliance with its statutory obligations is warranted only when it is in the best interests of the child." K.L.W., supra, 419 N.J. Super. at 581.

Both Dr. Quintana and Dr. Gordon-Karp were adamant in their opinions that Anna and Amy are securely bonded to their foster parents and will suffer severe and enduring harm if removed from them. Moreover, T.S. is related only to Amy, and Anna had never met T.S. until the bonding evaluation performed by Dr. Quintana on September 25, 2014. Amy had not seen T.S. from the time she was approximately two months old until T.S began accompanying Andy to his visits in July 2014.

Dr. Quintana opined that "making the girls start the process again of building a close bond with [T.S. was] not in their best interests." The experts also agreed that separating the girls from each other would be detrimental to their well-being. The third prong was established by clear and convincing evidence as to all three defendants.

Prong Four

Tara argues that the Division is responsible for the "inappropriate and unnecessary formation of [the] bond" between the girls and their foster parents. She also claims that because it did not provide Tara with visitation while she was incarcerated, the Division is responsible for the children's poor bond with her.

Mark argues that the foster parents coached and manipulated Anna with the intent to alienate her from him, and the Division was aware of the foster parents' conduct and did not take adequate steps to remedy it.

Andy relies on In re Guardianship of J.E.D., 217 N.J. Super. 1, 15-16 (App. Div. 1987), certif. denied, 111 N.J. 637 (1988), in arguing that the trial judge's conclusion that termination of his parental rights would not cause Amy any harm is wrong as a matter of law. He claims that Amy will "clearly suffer lasting and enduring harm" if his parental rights are terminated because Amy's growing relationship with him and T.S. will be replaced with "a forced relationship with manipulative and unstable non-relative foster parents."

Andy concedes that, at the time of his bonding evaluation, he had only visited with Amy for one month but argues that the conclusion that there was no bond was premature. He also argues that Dr. Gordon-Karp admitted that T.S. might be able to mitigate any harm the girls may suffer if removed from their foster parents, and that the Division could provide services to assist her.

"A child's need for permanency is an important consideration under the fourth prong" of the best interests test. M.M., supra, 189 N.J. at 281. "The question to be addressed under that prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy . . . N.J.S.A. 30:4C-15.1(a)(4)." Id. at 363.

Even if "final separation from a biological parent is a harm in itself," J.E.D., supra, 217 N.J. Super. at 15, the question under the fourth prong of the best interests test is not whether some harm will befall the child if parental rights are terminated, but rather whether the termination will do more harm than good. K.H.O., supra, 161 N.J. 355.

In J.E.D., the court recognized that where a child has developed a parent-child relationship with her foster parents, destruction of that relationship is also "itself a harm to the child," and that "harm must be considered even [where] the natural parent is entirely blameless in the loss of custody of the child and would be a good parent." 217 N.J. Super. at 16.

While defendants lay blame for the secure bond their daughters enjoy with their foster parents, they do not dispute that bond, or the lack of a bond between themselves and their children. The experts agreed that the girls view their foster parents as their psychological parents and that removing them from their care would cause severe and enduring harm. Further, the girls are not attached to their biological parents and severing the parental relationship would result in little to no harm to the girls. We are satisfied that the trial judge's conclusion that termination of parental rights would not do more harm than good is supported by clear and convincing record evidence.

Affirmed.

1 We employ pseudonyms to protect the privacy of the minors and for ease of reading.

2 At that time, the Division was known as the Division of Youth and Family Services.