NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.I.B and E.W

Annotate this Case

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5016-18

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

K.I.B.,

Defendant,

and

E.W.,

Defendant-Appellant.
________________________

IN THE MATTER OF THE
GUARDIANSHIP OF A.Q.B.
and A.A.I.B., minors.
________________________

Submitted October 28, 2020 – Decided March 1, 2021

Before Judges Vernoia and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0016-19.

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

Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Merav Lichtenstein, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor A.Q.B. (Meredith Alexis Pollock,
Deputy Public Defender, of counsel; Lynn B. Norcia,
Designated Counsel, on the brief).

PER CURIAM

Defendant E.W.1 (defendant) appeals from a Family Part judgment

terminating his parental rights to the son, A.Q.B. (Alan), he shares with

defendant K.I.B. (Kara). Defendant contends we should reverse the judgment

because the court erred by finding the Division of Child Protection and

Permanency (the Division) presented clear and convincing evidence satisfying

1
We employ initials and pseudonyms to protect the privacy of the parties and
for ease of reference. R. 1:38-3(d)(12).

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2
each of the prongs of the best-interests-of-the-child standard embodied in

N.J.S.A. 30:4C-15.1(a). Unconvinced, we affirm.

Alan was born in May 2011. Defendant was not identified as Alan's father

on the child's birth certificate. It is unclear with whom Alan resided immediately

following his birth, but there is no evidence he lived with or was cared for by

defendant at that time.

In July 2014, the Division received a referral that defendant was shot

while leaving a cookout with Alan in his care. Kara was incarcerated at the time

of the shooting. During the Division's investigation of the referral, defendant

reported that his mother, W.W. (Wendy), had custody of Alan. Defendant also

explained he had been incarcerated for two years, had been released "over three

months ago," and was living in his mother's home. Based on defendant's

statement to the Division during its investigation of the referral, from

approximately April 2012, eleven months after Alan was born, until April 2014 ,

when Alan was almost three, defendant was incarcerated and unavailable to care

for Alan.

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3
Wendy reported she was granted custody of Alan in December 2013 and

had been caring for the child prior to that time. The investigation also revealed

that following his release from prison in April 2014, defendant resided in

Wendy's home. During the Division caseworker's interview of Alan, the child

referred to defendant as "daddy" and explained that defendant and Wendy made

food for him, and defendant "help[ed] him get dressed after he bathe[d]." The

Division determined the allegations of abuse and neglect against defendant

arising from the shooting incident were not established.

Approximately one year after the shooting incident, defendant was

arrested in New York on a robbery charge. He was later convicted and sentenced

to prison. Since his July 2015 arrest on the robbery charge, defendant has been

incarcerated in various New York jails and correctional institutions and has been

unavailable to care for or parent Alan. At the time of the June 2019 guardianship

trial, it was anticipated defendant would be released from custody in January

2020.2

2
In her brief on appeal, the Law Guardian reports defendant was not released
in January 2020 and that defendant's conditional release date was August 23,
2020 and maximum release date was July 5, 2021. We do not rely on this
information, which was not before the trial court, in our consideration of
defendant's challenge to the guardianship order.

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4
The Division next became involved with Alan in July 2016 when it

received a referral that Kara had been arrested for shoplifting. 3 Kara was

incarcerated for a few days as a result of the arrest, and the Division determined

Alan was with Kara's sister, with whom Kara and Alan were living at that time.

The investigation revealed Kara had a court order showing she "just recently"

had sole custody of Alan returned to her. The Division determined the referral

for abuse or neglect was not established, and Alan remained in Kara's custody.

A "family friend" of Kara's, D.H. (Dana), testified that in the months prior

to October 2016, Kara left Alan in her home. Kara was incarcerated during that

time. Following her release from incarceration in October 2016, Kara took Alan

from Dana's care and returned with Alan to live at her sister's home. Just over

a week later, the Division received a referral that Alan had missed nine days of

school. During the Division's investigation, Kara reported she had transferred

Alan to a school closer to her sister's home, and the Division determined the

abuse or neglect referral was not established.

Dana testified Kara gave birth to a daughter, A.A.I.B. (Alice), on

November 20, 2016, and, two weeks later, Kara returned to Dana's home with

Alan and Alice. Since that time, with the exception of a one-month period in

3
Kara advised she was charged with shoplifting and resisting arrest.
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5
2017 when the children were removed while the Division qualified Dana as a

resource parent, Dana has cared for, and provided a home for, Alan and Alice.

In January 2017, the Division discovered Kara was no longer living with

her sister and that the children were living with Dana and her mother, C.H.

(Chris). The Division spoke with Alan, who reported that he enjoyed living with

Dana and Chris, and that he felt safe with them. During a February 1, 2017

Division visit to Dana's home, Kara said she wanted to share joint custody of

the children with Dana.

On March 2, 2017, the Division determined that Dana's home was clean

and well-kept and Alan was happy living there. Four days later, Dana advised

the Division that Alan "pok[ed] himself in the stomach with a . . . pencil" at

school, "said he wanted to kill himself," and "told staff members that he would

defecate on himself." He was not permitted to return to school until he received

a "psychiatric assessment."

The Division was unable to locate Kara to obtain permission for the

assessment. 4 On March 8, 2017, the Division conducted a Dodd removal of the

4
The Division later learned Kara was incarcerated at the time. On March 8,
2017, Kara told the Division she was incarcerated from February 28, 2017,
through March 7, 2017, for driving under the influence and possession of
marijuana.

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children from Dana's home because it did not meet the licensing standards for a

resource home.5 The home had insufficient bedroom space and Dana's brother,

who had a criminal conviction, resided there.

On March 8, 2017, the court entered an order granting the Division care,

custody, and supervision of Alan and Alice. On that date, Kara informed the

Division she wanted the children placed together, and that Wendy was willing

to take both children. The order reflects that defendant's whereabouts were then

unknown to the Division.

At a March 22, 2017 hearing, the court continued the care, custody, and

supervision of the children with the Division. The court's order reflects that

defendant was not provided notice of the hearing. 6 The court's order granted

Kara and defendant supervised visitation with Alan.

On April 10, 2017, the Division returned the children to Dana's care after

her home became eligible for licensing as a resource home. Two days later, the

Division noted defendant was "incarcerated at Rikers Island." That same day,

5
A "Dodd removal" is an emergency removal of a child from the custody of a
parent without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd
Act, N.J.S.A. 9:6-8.21 to -8.82.
6
The record also does not disclose if the Division knew of defendant's
whereabouts at that time.
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Wendy "informed the Division that she [was] interested in caring for her

grandson [Alan] and [was] also willing to care for [Alice]." The Division

caseworker noted that Wendy would be assessed "as a possible resource for [the]

children."

The court held proceedings on April 27, June 28, and July 31, 2017, but

defendant was not noticed of those hearing dates, nor represented by counsel.

On July 31, 2017, the court required that defendant be served and produced for

the next hearing. In August 2017, the Division noted defendant's transfer to a

correctional facility in Coxsackie, NY, and stated it would "determine if

[defendant could] be serviced in . . . [his] facility as well as if [he had] an ability

to plan for [Alan] at [that] time."

The Division did not serve defendant with a copy of its complaint or

contact him concerning an October 30, 2017 hearing. In the court's order of that

date, it again required that defendant be served. At the next hearing on

December 5, 2017, defendant first appeared via telephone with counsel.

Defendant thereafter appeared telephonically at all court proceedings, except on

a number of occasions when telephone connections with the correctional facility

were not possible or defendant declined to appear. In those instances,

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8
defendant's attorney waived defendant's right to be present. Defendant appeared

telephonically on each day of the guardianship trial.

The Division sent defendant letters on January 31, March 28, and May 10,

2018, providing its contact information, notifying defendant of upcoming court

dates, and advising that Alan was diagnosed with attention-

deficit/hyperactivity-disorder and oppositional defiant disorder and was taken

for "an assessment [on April 11, 2018] to determine if there [was] a need for

psychotropic medication." The Division also provided defendant with copies of

the letter from the hospital and an assessment report concerning Alan.

On June 4, 2018, the Division changed its goal "from [r]eunification to

[a]doption." The court's permanency order noted that, at that time, defendant

"remain[ed] incarcerated in [New York] . . . and [was] not offering himself as a

plan" for Alan. At a June 18, 2018 hearing, the court ordered that Kara was

"permitted to have . . . visitation with her . . . children . . . once a month while

incarcerated." Defendant argues that "[n]o justification . . . [was given] for why

this was not ordered for [him]." However, by this time, defendant had been

relocated to a correctional facility in Altona, New York, which was "five-and-

a-half hours away" from Alan's residence.

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9
The Division filed a guardianship complaint on July 16, 2018, seeking to

terminate Kara's parental rights to Alan and Alice, and defendant's parental

rights to Alan.7 Defendant was subsequently served with the complaint, and, as

noted, he appeared telephonically and with counsel at all hearings in the

guardianship proceeding.

During an October 18, 2018 court conference, the Division explained it

did not intend to provide defendant with visitation with Alan at defendant's

upstate New York prison facility because defendant had advised he would not

present himself as a plan for Alan, and because he was incarcerated such a great

distance away from Alan. 8 Defendant did not object. To the contrary,

defendant's counsel asked if defendant wanted to address the visitation issue

and, in response, defendant said he did not want to say anything about it.

A Division caseworker testified during the guardianship trial that

defendant was aware of the Division's position concerning visitation, and that

7
Alice's biological father was never identified.
8
At the same hearing, defendant's counsel acknowledged that defendant did not
present himself as a plan for Alan, but counsel also stated she intended to address
that issue with defendant. The record shows defendant never changed his plan
or indicated to the Division or court that his plan for Alan was that he would
provide the child with a safe and secure home.

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10
he did not object or request visitation. The caseworker testified that visitation

was not offered to defendant at the upstate New York correctional facility

because the Division did not "feel . . . it was in [Alan]'s best interest to

travel . . . [ten] hours," and Alan's "hyperactivity issues" posed "safety

concerns . . . when [they] transport[ed] him." The testimony was unrefuted.

Defendant first spoke directly with a Division caseworker on November

30, 2018. During that telephone call, defendant explained he had been convicted

of second-degree robbery, that he had been incarcerated "[g]oing on five years,"

and that he had a scheduled release date fourteen months later in January 2020.

The caseworker inquired about how much contact defendant had with Alan, how

much of Alan's life defendant had been incarcerated, and what defendant's plan

was. Defendant explained his mother Wendy "stepped in[to] the parenting role"

during the first four years of Alan's life until the child went into foster care.9

Defendant stated his plan was to surrender his parental rights to Wendy or his

sister, V.W. (Verna), "ONLY," to have "his sister or mother adopt his son," and

to become integrated in planning for Alan after he was released from prison.

9
Defendant's statement is undermined by other evidence that Kara obtained
custody of Alan from Wendy by early 2016, and Kara and Alan resided with
Kara's sister during portions of 2016. Alan was not placed in foster care until
the March 2017 Dodd removal.

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11
The caseworker explained the Division's plan was for "foster home

adoption." Defendant questioned how the matter could proceed to trial without

any visitation or a bonding evaluation, and the caseworker responded that a

bonding evaluation might "impact [Alan] negatively" because defendant "ha[d]

not had visitation or any contact with his son" and had "not spent time with [his]

son." Defendant told the caseworker the phone call was his first contact with

the Division since the case opened, and he wanted to speak with Alan and would

request phone contact at his upcoming December 20, 2018 court hearing. At the

hearing, however, neither defendant nor his counsel requested phone contact

with Alan. Instead, defendant's counsel explained only that defendant's "main

concern" was the Division "looking into his mother . . . and sister as placement

options" and that the "priority [was] making sure [Alan was] with his paternal

relatives."

The Division assessed several of defendant's relatives as resource parents

for Alan, including Wendy, Verna, defendant's father, E.C. (Elbert), and

defendant's relatives T.G., U.J., and I.J. T.G. was ruled out due to an "active

criminal charge"; U.J. and I.J. were ruled out due to lack of space in their homes;

and Elbert, who had a criminal history, was ruled out due to his failure to provide

required documentation. Initially, Wendy was ruled out due to a lack of

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12
adequate bedroom space in her apartment, and then a second time because she

had a 2008 substantiation for neglect/inadequate supervision. The Division sent

rule-out letters to Wendy, Elbert, T.G., U.J. and I.J.

Verna offered herself as a placement for the children in February 2018,

but requested her home not be assessed until she relocated. The Division

assessed her new home on September 6 and October 4, 2018, and it "sent her a

letter identifying . . . [licensing violations] with the home" that required

remediation.

In March 2019, Verna again relocated, and the Division was required to

restart the home assessment process. Verna subsequently "expressed that she

was no longer interested" and "wanted to remove herself from the . . . process."

At the guardianship trial, the Division caseworker testified that Verna said the

process was "overwhelming," and Verna testified she felt like she was "being

led on" and she "didn't want to keep taking [her own three children] through the

process of having these different people in and out of [her] house." The Division

sent Verna a rule-out letter on April 22, 2019. Neither Verna nor any of

defendant's other family members who were assessed as possible placements for

Alan appealed from the rule-out letters they received.

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In March 2019, the court ordered that defendant undergo a psychological

evaluation. On May 17, 2019, Dr. Barry A. Katz traveled to the upstate New

York facility where defendant was incarcerated to perform the evaluation, but

defendant refused to participate. Defendant told Dr. Katz "he did not want to

participate . . . because he did not want anything bad to be said about his

parenting." Defendant further opined that he thought he was going to lose the

case, and "did not want to have [the] evaluation affect any other children he may

have."

In May 2019, a paternity test for Alan was performed at defendant's

request. The results confirmed defendant is Alan's biological father.

At the guardianship trial, the Division presented testimony from Dr. Mark

Singer, who was qualified as an expert in psychology. The Law Guardian

presented Dr. Elizabeth Smith, who was qualified as an expert in psychology

and bonding. The experts conducted separate bonding evaluations with the

children and Dana, and the children and Kara. The experts made similar

observations of, and reached similar conclusions concerning, Alan's bond with

Dana, and Alan's bond with Kara. Based on their separate and independent

evaluations, each concluded Dana was Alan's psychological parent who had over

many years provided the only permanent, secure, and stable home he had known.

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They each opined that termination of Alan's relationship with Dana would cause

Alan severe and enduring emotional and psychological harm, and that

termination of Kara's parental rights would cause little harm because of the

attenuated bond Alan shared with her. Each also noted Alan referred to Dana as

"mommy," and Dr. Smith noted Alan referred to Chris as "grandma." Both

doctors also noted Alan wanted to continue to live with Dana and Chris.

Dr. Smith observed Alan "has special needs . . . that will require attention

and clinical and educational intervention over many years," and "[i]t [was her]

opinion that [Dana] is capable of effectively addressing these needs." Dr. Singer

also found Alan "clearly requires permanency" and "a high level of consistency

and stability" due to his "difficulty managing his behavior." He opined that Alan

has found permanency with Dana.

Dr. Singer concluded "allowing [Alan and Alice] to remain together would

be of significant benefit to the[m]." He opined that "[t]he totality of the data

supports [the] plan to pursue termination of parental rights so that these children

may achieve permanency through adoption by their psychological parents." Dr.

Smith similarly opined that it was important for Alan to continue to live with

Alice because maintenance of the sibling relationship permits him "to feel that

he belongs to a family."

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Dr. Smith determined it is in the children's best interests to remain

together, and "it [was her] clinical opinion . . . [Alan]'s best interest would be

served by . . . adoption by [Dana]." Dr. Smith explained the importance of

permanency for Alan because of his special needs, his history of changing

placements, and his need to trust that his caregivers will consistently be there

for him. She testified she did not speak with defendant because she understood

he did not present himself as a plan for Alan.

At trial, the Division presented the testimony of three caseworkers, who

described their interactions with Kara, Dana, defendant, and the members of

defendant's family during the Division's history with Alan and Alice. The

Division also presented Dana, who explained the care she has provided for the

children since 2016, her agreement to let defendant's mother and sister have

visitation with Alan, and her plan to allow defendant to have access to Alan.

Dana testified she wants to adopt the children to provide the consistency and

stability she did not believe either Kara or defendant could provide. She also

testified that defendant called and spoke with Alan every four months or so.

Defendant called Verna as a witness. She testified about her efforts to get

Division approval as Alan and Alice's resource parent, her frustrations with the

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process, and her decision to withdraw her request that the Division consider her

as a resource parent.

During the guardianship trial, the court terminated Kara's parental rights

to Alice pursuant an identified voluntary surrender of those right to Dana.

Following the trial, Dana adopted Alice.

On June 28, 2019, the trial court entered a judgment terminating

defendant's parental rights to Alan. The court found it "clear that [defendant's

presence in Alan's life] was not consistent or substantial," as defendant "has

been in and out of jail for most of [Alan]'s life." The court found "[defendant's]

poor judgment . . . has resulted in his inability to provide the necessary parental

solicitude, nurture[,] and care over an extended period of time," which has

"harmed [Alan's] . . . safety, health, and development causing further delay in

permanency."

The court also determined "[defendant]'s ongoing legal

troubles . . . demonstrate that he continues to exercise poor judgment indicating

that he is unable to eliminate the harm." The judge found "[e]ven if [defendant]

was released today, he would need to participate in services and stabilize

himself, thus causing a further delay in [Alan's] permanency." The court opined

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that "[t]o deny [Alan] . . . permanency in the hope that [defendant] may one day

become a stable parent is not in [Alan's] best interests."

Additionally, the court found that "[a]lthough the Division [was] limited

in the services [it could] provide . . . [it] made reasonable efforts" by "offer[ing]

. . . a psychological evaluation, paternity testing[,] and updates on [Alan]'s

progress." The court also noted "[defendant] did not request any services; he

did not even request visitation." Further, the court discussed the myriad services

provided to Kara and Alan, and the multiple assessments of defendant's relatives

as potential placements for the child, and found "[t]he efforts directed at this

family were tailored to the needs of [Kara], [defendant] and the children and for

a prolonged period."

Finally, the court also concluded termination of defendant's rights would

not do more harm than good because defendant's relationship with Alan was "not

consistent or substantial"; defendant "has not engaged in any services in order

to parent"; and defendant "did not present himself as a plan." The court also

credited the experts' opinions that Alan "is very well[-]bonded to [his resource

parent]"; he "would . . . regress behaviorally and emotionally if [he] were to lose

th[is] relationship"; and "no amount . . . of therapy or intervention could

mitigate the risk of [significant and enduring] harm." The court found that "in

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light of the numerous disruptions in [Alan]'s life, his permanency is of

paramount concern."

The court entered an order terminating defendant's parental rights to Alan.

This appeal followed. On appeal defendant argues: (1) the Division failed to

prove he harmed Alan or that he was unwilling or unable to eliminate the harm;

(2) it failed to prove it provided reasonable efforts toward reunification of

defendant and Alan or considered alternatives to termination; and (3) it failed to

prove termination of defendant's parental rights would not do more harm than

good. The Division and Alan's Law Guardian argue the court's judgment and

determination are supported by sufficient credible evidence and should be

affirmed.

II.

In reviewing a decision to terminate parental rights, "[t]he scope of our

review of [the] . . . court's factual findings is limited." N.J. Div. of Youth &

Fam. Servs. v. L.J.D., 428 N.J. Super. 451, 476 (App. Div. 2012). "A Family

Part's decision to terminate parental rights will not be disturbed when there is

substantial credible evidence in the record to support the court 's findings," N.J.

Div. of Child Prot. & Permanency v. K.T.D., 439 N.J. Super. 363, 368 (App.

Div. 2015), because the court "has the opportunity to make first-hand credibility

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judgments about the witnesses . . . [and] a 'feel of the case' that can never be

realized by a review of the cold record," N.J. Div. of Youth & Fam. Servs. v.

E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Fam. Servs. v.

M.M., 189 N.J. 261, 293 (2007)). "Only when the trial court's conclusions are

so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene

and make its own findings to ensure that there is not a denial of justice." Ibid.

(quoting N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007)).

We review the trial court's legal conclusions de novo. Manalapan Realty, L.P.

v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Parents have a "constitutional right 'to raise [their] child and maintain a

relationship with that child, without undue interference by the state.'" N.J. Div.

of Child Prot. & Permanency v. S.D., 453 N.J. Super. 511, 518 (App. Div. 2018)

(quoting N.J. Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 18 (2013)).

"Permanent termination of parental rights is the ultimate intrusion on th [is]

right . . . ." A.L., 213 N.J. at 25. However, this right is "not absolute," In re

Guardianship of K.H.O., 161 N.J. 337, 347 (1999), and must be balanced against

"[t]he State['s] . . . basic responsibility, as parens patriae, to protect children

from serious physical and psychological harm," E.P., 196 N.J. at 102.

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A court may terminate parental rights when the Division proves by clear

and convincing evidence the four prongs of the "best interests" standard under

N.J.S.A. 30:4C-15.1(a). The Division must 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 [or her] resource family 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.

[ N.J.S.A. 30:4C-15.1(a); see also N.J. Div. of Youth &
Fam. Servs. v. A.W., 103 N.J. 591, 604-11 (1986).]

These "four criteria . . . are not discrete and separate; they relate to and

overlap with one another to provide a comprehensive standard that identifies a

child's best interests." N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494,

506 (2004) (quoting K.H.O., 161 N.J. at 348).

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A.

We first consider defendant's argument the Division failed to sustain its

burden under the first and second prongs of the best-interests standard. "[T]he

two components of the harm requirement . . . are related to one another, and

evidence that supports one informs and may support the other as part of the

comprehensive basis for determining the best interests of the child." In re

Guardianship of D.M.H., 161 N.J. 365, 379 (1999). Defendant argues: the

Division failed to prove he has harmed Alan and the trial court "erroneously

conflated [his] incarceration with harm"; the Division "did not present

evidence . . . [he] will cause harm to [Alan] in the future"; and the court erred

by finding he could not "eliminate the harm" to Alan.

While "incarceration alone . . . is an insufficient basis for terminating

parental rights," N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 556

(2014), a parent's incarceration is "probative of whether the parent is incapable

of properly caring for the child or has abandoned the child. It is, therefore, a

factor that is unquestionably relevant to the determination of whether the

parental relationship should be terminated," In re Adoption of Children by

L.A.S., 134 N.J. 127, 136-37 (1993).

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Courts must consider a defendant's "[p]erformance as a parent before

incarceration, to what extent [the] child[] [was] able to rely on [the defendant]

as a parent, and what effort, if any, [the defendant] has made to remain in contact

with his [or her] child[] since his [or her] incarceration." R.G., 217 N.J. at 555

(quoting L.A.S., 134 N.J. at 143). "Further, the court must consider the risk

posed to [the] child[] by [the parent]'s criminal disposition; what rehabilitation,

if any, has been accomplished since [the parent]'s incarceration; and the bearing

of those factors on the parent-child relationship." Id. at 556 (third and fourth

alterations in original) (quoting L.A.S., 134 N.J. at 143-44).

Physical harm is not required under the first prong, and action or inaction

on the part of the parent that causes emotional or psychological harm to the child

satisfies the prong. In re Guardianship of K.L.F., 129 N.J. 32, 43-44 (1992).

This includes "[a] parent's withdrawal of . . . solicitude, nurture, and care for an

extended period of time," D.M.H., 161 N.J. at 379, and a child's unfulfilled need

for a permanent home, N.J. Div. of Youth & Fam. Servs. v. B.G.S., 291 N.J.

Super. 582, 591-92 (App. Div. 1996). "Courts need not wait to act until a child

is actually irreparably impaired by parental inattention or neglect" to find this

prong satisfied, D.M.H., 161 N.J. at 383, as the prong "addresses the risk of

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future harm to the child as well," N.J. Div. of Youth & Fam. Servs. v. H.R., 431 N.J. Super. 212, 222 (App. Div. 2013).

The second prong is "relate[d] to parental unfitness." K.H.O., 161 N.J. at
352. "[T]he cornerstone of the inquiry is . . . whether [a defendant] can cease

causing [his or her] child harm." In re Guardianship of J.C., 129 N.J. 1, 10

(1992). Where a parent is willing and able to eliminate the initial "harm facing

the child" and "provide a safe and stable home for the child," N.J.S.A. 30:4C-

15.1(a)(2), the second prong may still be satisfied "not on grounds of current

unfitness[,] but because of potential [enduring] harm to the child based on

separation from a [resource] parent with whom the child has bonded," J.C., 129 N.J. at 18; see also K.H.O., 161 N.J. at 363 (stating the second prong is met

where "the child will suffer . . . from the disruption of [his or] her bond with

[resource] parents"); L.J.D., 428 N.J. Super. at 494 (finding the second prong

satisfied upon "unequivocal [expert] testimony" that the child's removal "from

[the] resource parents would cause serious and enduring emotional harm").

Here, the court found defendant's "poor judgment . . . resulted in his

inability to provide the necessary parental solicitude, nurture[,] and care over an

extended period" of time, and that defendant has "harmed [Alan's] . . . safety,

health[,] and development causing further delay in permanency." The court's

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24
finding of harm is supported by the evidence showing defendant's poor decision

making by engaging in criminal activity resulted in his absence, through

incarceration, for all but a very small portion of Alan's life. The trial court

credited the unrefuted expert testimony that defendant's and Kara's absences

from Alan's life caused the child to suffer from a "desperate[] need[] [of]

stability," "permanency[,] and consistency." See, e.g., L.A.S., 134 N.J. at 141

(explaining the inability of an incarcerated parent "to carry out many regular and

ordinary parental duties . . . can be deleterious to the emotional and

psychological condition of the children").

Indeed, defendant has been available to parent nine-year-old Alan only

during the fifteen-month period between April 2014 and July 2015, and,

according to defendant's statement to the Division caseworker, during that time

Wendy had custody of, and cared for, Alan while defendant lived with them.10

A child's unfulfilled need for a permanent home constitutes harm under the first

prong of the best-interests standard, B.G.S., 291 N.J. Super. at 591-92, and the

record supports the court's determination the Division presented clear and

convincing evidence defendant had caused, and would continue to cause, Alan

harm by depriving him of the permanency to which he is entitled. Indeed, the

10
Alan was eight years old at the time of the June 2019 guardianship trial.
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25
evidence established defendant consistently communicated that he did not

intend to offer himself as a plan to provide Alan with a permanent, safe, and

secure home, even after his release from incarceration.

The court also determined the Division proved that defendant posed a risk

of future harm to Alan. The court's finding is supported by defendant's decision

not to offer himself as a person who would provide Alan with a permanent home,

as well as by the unrefuted expert testimony that Alan's loss of Dana as his

caretaker and psychological parent would cause "a significant, negative

reaction. . . . [that] would be . . . enduring" and would cause Alan to further

"regress emotionally and behaviorally." See In re Guardianship of J.E.D., 217 N.J. Super. 1, 16 (App. Div. 1987) (finding "where the child has been in

[resource parent] care and has developed a 'parent-child' relationship," the

"destruction of such a relationship is itself . . . harm to the child"). The court's

determination the Division sustained its burden under the first prong of the

statutory standard is supported by substantial credible evidence.

The second prong may be satisfied "not on grounds of current unfitness[,]

but because of potential [enduring] harm to the child based on separation from

a [resource] parent with whom the child has bonded." J.C., 129 N.J. at 18; see

also J.E.D., 217 N.J. Super. at 16. As noted, the Division's and Law Guardian's

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26
experts not only found the risk of significant and enduring harm to Alan if his

relationship with Dana is severed, but Dr. Smith also concluded that no "amount

or kind of therapy or intervention could mitigate the risk." The evidence

establishing the harm that will result from termination of Alan's relationship

with Dana satisfies the second prong. J.C., 129 N.J. at 18-19; J.E.D., 217 N.J.

Super. at 16.

Additionally, and as noted, the evidence shows defendant has consistently

stated he does not intend to provide Alan with a permanent home. That is,

defendant has no desire or plan to provide Alan with a permanent home. His

consistent position has been that permanency for Alan should be provided by

either Wendy or Verna. Defendant does not seek to serve as Alan's custodial

parent or to assume responsibility for providing the safe, secure, and permanent

home Alan deserves. Thus, by his own admissions, defendant is unwilling to

address or remedy the harm caused by the lack of permanency that characterized

Alan's life prior to his placement with Dana. Defendant has not, and does not,

present himself as a plan to address the harm facing Alan—further delay in

providing Alan with the safe and secure home and permanency Dana has

provided for many years, and promises to continue to provide through adoption.

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27
Defendant challenges the court's finding that his "ongoing legal

troubles . . . demonstrate that he continues to exercise poor judgment indicating

that he is unable to eliminate the harm." The court also found defendant "has

not engaged in any services" and "refused to participate" in a court ordered

psychological evaluation, and that "[e]ven if [defendant] was released today, he

would need to participate in services and stabilize himself, thus causing a further

delay in [Alan]'s permanency."

Defendant contends the court's findings are in error because he does not

have any parenting deficiencies or mental health issues that render him unable

to parent Alan, and he is not in need of any services to permit him to ably parent

Alan and provide Alan with a safe and secure home. His self-serving,

conclusory assertions ignore that he was offered a psychological examination so

the nature and extent of the issues that have caused him to engage in the ongoing

criminal activity that have rendered him wholly unavailable to parent Alan could

be identified. He refused the examination, and the benefits it may have yielded,

based solely on his concern that it might affect his entitlement to parent "other

children he may have." His refusal simply confirms he is unwilling to take the

steps necessary to eliminate the harm facing Alan and is unwilling to provide

Alan with a safe and stable home. See N.J.S.A. 30:4C-15.1(a)(2).

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28
In sum, the court's finding defendant has caused and will continue to cause

Alan harm by depriving him of permanency and by severing the strong bond

Alan has with his psychological parent, Dana, is amply supported by the

evidence. Similarly, the court's determination defendant is unwilling and unable

to remediate the harm is supported by substantial credible evidence. We discern

no basis to disturb the court's findings under the first and second prongs of the

best-interests standard. N.J.S.A. 30:4C-15.1(a)(1) to (2); see also K.H.O., 161 N.J. at 353-54.

Defendant also contends the court erred by finding the Division sustained

its burden of establishing it provided reasonable efforts to enable him to

"become a functioning parent and caretaker." K.H.O., 161 N.J. at 354; see also

N.J.S.A. 30:4C-15.1(a)(3) (requiring the Division to prove it made "reasonable

efforts to provide services to help the parent correct the circumstances which led

to the child's placement . . . and the court has considered alternatives to

termination of parental rights"). "Reasonable efforts" are defined as:

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, including, but not
limited to:

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29
(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).]

The focus is on the Division's efforts toward "reunification of the parent

with the child and assistance to the parent to correct and overcome those

circumstances that necessitated the placement of the child into [resource parent]

care." K.H.O., 161 N.J. at 354. However, "[t]he diligence of [the Division]'s

efforts . . . is not measured by their success," but rather "against the standard of

adequacy in light of all the circumstances." D.M.H., 161 N.J. at 393.

"Whether particular services are necessary in order to comply with the

diligent efforts requirement must . . . be decided with reference to the

circumstances of the individual case before the court, including the parent 's

active participation in the reunification effort." Id. at 390. "[W]here one parent

has been the custodial parent and takes the primary . . . role in caring for the

child[], it is reasonable for [the Division] to continue to focus its efforts of

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30
family reunification on that custodial parent, so long as [it] does not ignore or

exclude the non-custodial parent." Id. at 393.

The record shows the Division provided innumerable services to Kara,

who was Alan's custodial parent when the Dodd removal occurred. As the trial

court correctly noted, the Division provided Kara with "psychological and

bonding evaluations, supervised visitation, parenting skills [training], individual

therapy, [Center for Alcohol and Drug Services] assessment[s], substance abuse

treatment, transportation assistance[,] and [Family Team Meeting]s." The

Division properly "focus[ed] its [substantial] efforts of . . . reunification on th[e]

custodial parent," ibid., because defendant's ongoing lengthy incarceration

rendered him unavailable to parent Alan, and defendant otherwise consistently

indicated he did not intend to present himself as a plan to provide Alan with a

permanent home.

Any effort to provide services to defendant was also "necessarily impeded

by the difficulty and possible futility of providing services to an incarcerated

person." R.G., 217 N.J. at 557. The services that could be offered to defendant

were further limited because defendant was incarcerated at a distant out-of-state

prison. In such circumstances, "reasonable efforts may be satisfied when the

Division provides services to, and seeks reunification with, the custodial parent

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31
from whom the child was removed." Id. at 557-58; see N.J. Div. of Youth &

Fam. Servs. v. T.S., 417 N.J. Super. 228, 242-43 (App. Div. 2010) (finding that,

because a father had no relationship with his daughter prior to his incarceration,

providing services to him would be futile). However, "[a]bsent an order under

N.J.S.A. 30:4C-11.3, the Division may not ignore requests or avoid providing

services to an incarcerated parent." R.G., 217 N.J. at 558. Again, the Division

provided reasonable services by focusing its efforts on reunification of Alan

with his custodial parent, Kara, while defendant served his prison sentence. The

Division's focus on reunification with Kara was especially appropriate here

because defendant expressed that he should not be considered as a plan to

provide Alan with a permanent and secure home.

In any event, the Division provided services to defendant. It sent letters

to defendant concerning the status of the proceedings and Alan's assessment at

a hospital; it provided the paternity test defendant requested; and it provided a

psychological evaulation in which defendant refused to participate. Defendant

complains the Division did not provide visitation with Alan, but the evidence

established the Division made a reasoned decision not to transport Alan on a

ten-hour round-trip to visit defendant in the upstate New York correctional

facilty because of the child's special needs and the safety issues they presented.

A-5016-18
32 During an October 18, 2018 court hearing, the Division explained the basis for

its decision not to transport Alan for visitation at the correctional facility, and,

when asked by his counsel if he wished to address the issue of visitation,

defendant replied that he had "nothing" to say. Defendant's failure to object

during the hearing to the Division's decision not to transport Alan ten hours for

visitation is consistent with defendant's position that he had no intention of

providing Alan with a permanent and secure home.

Additionally, during his November 30, 2018 discussion with the

caseworker, defendant said he wanted to speak with Alan over the telephone and

would make that request at the next court hearing, but at the subsequent hearing

neither defendant nor his attorney requested telphone contact with Alan. The

record also otherwise established defendant was capable of contacting Alan by

telephone; Dana testified defendant called Alan and spoke with him

approximately every four months. There was no evidence defendant was

prevented from having more telephone contact with Alan.

Defendant correctly notes a Division caseworker first contacted him

directly on November 30, 2018, but at that time he reiterated what the court first

noted in June 2018; defendant decided not to be a plan for permanency for Alan

and sought only that the Division place Alan with either Wendy or Verna. See

A-5016-18
33
N.J. Div. of Youth & Fam. Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App.

Div. 2011) (stating the Division may not "embark on a course set for termination

of parental rights and adoption by a [resource] parent without at least first

exploring available relative placements"). The Division provided reasonable

services to effectuate defendant's plan for Alan—placement of the child with

either Wendy or Verna. See, e.g., ibid.; K.H.O., 161 N.J. at 354 (holding the

Division considered reasonable alternatives where it attempted to find relatives

to care for the child).

The Division separately considered both Wendy and Verna twice as

possible placements for Alan. Wendy was ruled out because she had previously

been substantiated for neglect and inadequate supervision by the Division. She

had appealed the substantiation finding, and it was affirmed. Verna was ruled

out because she withdrew her request to be considered as a placement for Alan.

Wendy and Verna received rule-out letters, and neither appealed from the

Division's determinations.

Defendant's claim the Divison did not provide the reasonable services

required to assist him in "correct[ing] the circumstances which led to" Alan's

placement, N.J.S.A. 30:4C-15.1(a)(3), is further undermined by his contention

that he does not require any services. Defendant's counsel argued in summation,

A-5016-18
34
and defendant contends on appeal, that the record is bereft of evidence he

requires services to ensure his ability to prevent further harm to Alan. He

inconsistently argues, however, that the Division failed to provide him with the

reasonable services required under N.J.S.A. 30:4C-15.1(a)(3). In other words,

defendant illogically argues he does not require any services and, at the same

time, he contends the Division failed to provide the services he required.

The court found "[defendant] has been incarcerated throughout the

entirety of the protective services and guardianship litigations in . . . facilit[ies]

in upstate New York," and it determined "the Division made reasonable efforts,

despite [defendant] not presenting himself as a plan for [Alan] and [defendant's]

incarceration," by "offer[ing defendant] a psychological evaluation, paternity

testing[,] and updates on [Alan]'s progress." "The court note[d] that the services

were limited," but "reasonable in light of [defendant]'s circumstances." The

court also stated "[defendant] did not request any services; he did not even

request visitation."

We are convinced the record supports the court's determination the

Division provided "reasonable [services] in light of [defendant]'s

circumstances." See D.M.H., 161 N.J. at 393. We reject defendant's claim that

the court's finding defendant failed to request services improperly shifted the

A-5016-18
35
burden on the third prong to him. The court did not conclude, as defendant

inaccurately claims, that the Division satisfied its burden by demonstrating

defendant failed to request services.

In its consideration of the "adequacy" of the services provided, ibid., the

court properly assessed if defendant "active[ly] participat[ed] in the

reunification effort," id. at 390. The Division did not "ignore requests or avoid

providing services to" defendant. R.G., 217 N.J. at 558. Defendant did not

request any services. For example, defendant did not request contact or

visitation with his son throughout the litigation, even after indicating to the

caseworker that he would do so at the next hearing. Defendant did not request

any services after receiving the Division's contact information, notice of its

custody of Alan, notice of Alan's special needs issues, or after speaking with the

caseworker on the phone. Defendant also did not participate in any services on

his own, and he refused a court-ordered psychological evaluation. Clearly,

defendant did not "active[ly] participat[e] in the reunification effort," D.M.H.,

161 N.J. at 390, nor display any "inclination" to participate in services, H.R.,

431 N.J. Super. at 225. To the contrary, defendant consistently asserted that he

did not represent a permanency plan, and he acted throughout the process in

accordance with that intention.

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36
Defendant also claims the court erred because the Court's decision in N.J.

Div. of Child Prot. & Permanency v. K.N., 223 N.J. 530, 534 (2015), permitted

the trial court to "order that placement be with an unpaid relative even in the

face of a [Division] disqualification." We do not consider the argument because

it was not made before the trial court, and, as a result, the court, the Division,

and the Law Guardian were deprived of the opportunity to address it . See N.J.

Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 339 (2010) (explaining

"issues not raised below will ordinarily not be considered on appeal").

We also reject defendant's reliance on the Court's decision in R.G.,

because the defendant in that case "immediately increased his efforts and

contacted [the child] to remain a part of her life" after realizing she had been

removed from the mother's custody, 217 N.J. at 560, and "voluntarily

participated in [multiple] classes . . . while in prison," id. at 541. Here,

defendant did not increase his efforts to remain a part of Alan's life after learning

of the child's removal from Dana's custody. Instead, defendant stated it was not

his plan to provide permanency for Alan, and he acted accordingly.

Unlike the defendant in R.G., defendant's efforts were directed

exclusively to placing Alan with either Wendy or Verna. When they were ruled

out, defendant's plan for permanency was no longer feasible, and he never

A-5016-18
37
changed his position and presented himself as a parent willing to assume the

responsibility for parenting his child. The Court described the defendant in R.G.

as one who "expressed a willingness to improve his parenting skills and a desire

to deepen his parent-child relationship." Id. at 563. There is no evidence

defendant shared a similar willingness or desire.

The Division presented clear and convincing evidence that it provided

reasonable services to defendant as required by N.J.S.A. 30:4C-15.1(a)(3) based

on the circumstances presented. We defer to the court's finding because it is

supported by the record evidence and defendant fails to demonstrate that the

finding is "so 'clearly mistaken' or 'wide of the mark' [that we]

should . . . intervene." E.P., 196 N.J. at 104 (quoting G.L., 191 N.J. at 605).

We are unpersuaded by defendant's argument the Division did not prove

the fourth prong—that termination of defendant's parental rights will not do

more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The ultimate question is

"whether, after considering and balancing the two relationships, the child will

suffer a greater harm from the termination of ties with [defendant] than from the

permanent disruption of [his] relationship with [his resource] parents." K.H.O.,

161 N.J. at 355. "[T]he child's need for permanency and stability emerges as a

A-5016-18
38
central factor." Id. at 357; see also N.J. Div. of Youth & Fam. Servs. v. F.M.,

211 N.J. 420, 453-54 (2012) (holding termination of the defendant's parental

rights would not do more harm than good where the child's attachment to the

resource parent was stronger than the attachment to the legal parent); N.J. Div.

of Child Prot. & Permanency v. P.D., 452 N.J. Super. 98, 122-23 (App. Div.

2017) (finding the fourth prong satisfied upon expert testimony that the severing

of the child's relationship with the resource parent would cause "severe and

enduring harm," while the child had "no bond" with the legal parent); N.J. Div.

of Child Prot. & Permanency v. N.C.M., 438 N.J. Super. 356, 372-73 (App. Div.

2014) (concluding the Division satisfied the fourth prong with expert testimony

that the children had developed a "secure[] attach[ment]" to their resource parent

while having only an "insecure attachment" to their legal parent).

The improbability of reunification with the parent or the fact the child 's

bond with the resource parent(s) is stronger than with the natural parent is not

enough to satisfy this prong. E.P., 196 N.J. at 108; J.C., 129 N.J. at 19. The

child's relationship with the resource parent(s) must be so strong "that separating

the child . . . would cause serious and enduring emotional or psychological

harm." E.P., 196 N.J. at 108 (quoting J.C., 129 N.J. at 19). We also consider

A-5016-18
39
"the effect of permanently terminating [the child]'s connection to his [or her]

siblings." In re Guardianship of J.N.H., 172 N.J. 440, 478 (2002).

The prong is typically required to be satisfied by expert testimony based

on a comparison of bonding evaluations. See N.C.M., 438 N.J. Super. at 371

(stressing the need for "well[-]qualified expert" testimony concerning bonding

evaluations (quoting J.C., 129 N.J. at 19)); L.J.D., 428 N.J. Super. at 492

(making its finding based on expert testimony regarding bonding evaluations).

However, expert testimony is not required in an instance involving "[a] common

sense notion that [a] child will be more bonded with his [or her resource] parents

than with [the] defendant." N.J. Div. of Youth & Fam. Servs. v. I.S., 202 N.J.
145, 182 (2010). Bonding evaluations are also not required where termination is

"not predicated upon bonding, but rather reflect[s the child]'s need for

permanency and [the parent]'s inability to care for [the child] in the foreseeable

future." B.G.S., 291 N.J. Super. at 593.

Defendant argues the Division could not prove prong four "because it

presented the court with absolutely no evidence regarding [Alan]'s relationship

with [defendant]." Defendant also asserts "[t]he unrefuted testimony of [Verna]

was that they had enjoyed a close relationship before [defendant]'s

incarceration." However, the court took issue with Verna's credibility, finding

A-5016-18
40
she "smirked when she thought her testimony was advantageous [to defendant],"

and that "[i]t was clear . . . she wanted [Alan] and would do anything to achieve

that goal, which did not help her credibility overall."

Since we defer to the court's "first-hand credibility judgments," E.P., 196 N.J. at 104, we are unconvinced Verna's testimony alone established a "close

relationship" between defendant and Alan as a matter of fact. Verna's testimony

about the purported close relationship between defendant and Alan is also

undermined by the unrefuted evidence that the only time defendant may have

spent with Alan was during the approximately fifteen-month period following

his third birthday while Alan was in Wendy's custody. The court found

defendant made virtually no efforts to remain in Alan's life after his

incarceration. Defendant called Alan only three times a year, never requested

contact or visitation, never contacted the Division when it sent him updates and

contact information, and never made "efforts to become fit to care for [his son]."

The court's finding there was "no evidence [of] . . . any ongoing relationship"

between defendant and Alan is supported by the record. Indeed, other than the

testimony of Verna, the record is bereft of evidence supporting the notion

defendant had been involved in Alan's life other than the short period, when

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41
Alan was three, and defendant resided with Wendy following his April 2014

release from incarceration.

We are not persuaded by defendant's claim the Division did not satisfy the

fourth prong because it did not proffer any "expert testimony . . . regarding the

bond between [defendant and his son]." Although bonding evaluations are

generally needed prior to termination of parental rights, N.J. Div. of Youth &

Fam. Servs. v. A.R., 405 N.J. Super. 418, 436-37 (App. Div. 2009), they are not

required where termination "[is] not predicated upon bonding, but rather

reflect[s the child]'s need for permanency and [the parent]'s inability to care for

[the child] in the foreseeable future," B.G.S., 291 N.J. Super. at 593. That is the

case here.

The court predicated its termination of defendant's parental rights upon

Alan's need for permanency and defendant's inability to care for him in the

foreseeable future. Moreover, as noted, defendant consistently indicated he does

not intend to provide a permanent and secure home for Alan even after he is

released from incarceration. Drs. Singer and Smith testified Alan "clearly

requires permanency and consistency," and is in desperate need of stability.

Under those circumstances, a bonding evaluation was not required. The record

supports the court's determinations that Alan needs permanency and will suffer

A-5016-18
42
severe harm without it, and defendant is wholly unable to satisfy that need in

the foreseeable future. See ibid.

As the court correctly found, uncontested expert testimony established

"[Alan] is very well[-]bonded to [his resource parents]," and severing that

relationship would cause Alan "severe and lasting harm" and would cause him

to further "regress emotionally and behaviorally." The unrefuted expert

testimony further established it is in Alan's best interests to remain with his

sister, and the experts explained termination of defendant's rights enables Alan

to finally "achieve permanency through adoption by [his] psychological

parents," to whom he is "secure[ly] attach[ed]."

Because the court based its termination of defendant's rights on Alan's

"need for permanency and [defendant]'s inability to care for [Alan] in the

foreseeable future," ibid., and the uncontested evidence establishes that

termination of Alan's relationship with his resource parents and sister would

cause "severe and lasting harm," the court's determination the Division satisfied

the fourth prong is amply supported by the record. See K.H.O, 161 N.J. at 355-

57; F.M., 211 N.J. at 453-54; P.D., 452 N.J. Super. at 121-22.

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43
To the extent we have not addressed any of defendant's remaining

arguments, they are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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44

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