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New Jersey Division of Child Protection & Permanency v. M.E.Z.

Superior Court of New Jersey, Appellate Division

October 30, 2013

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
v.
M.E.Z. and R.Z., Sr., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF M.R.N., JR. and R.Z., JR., Minors.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 22, 2013

On appeal from New Jersey Superior Court, Chancery Division, Family Part, Camden County, Docket No. FG-04-170-12.

Joseph E. Krakora, Public Defender, attorney for appellant M.E.Z. (Theodore J. Baker, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant R.Z., Sr. (Alan I. Smith, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors M.R.N., Jr. and R.Z., Jr. (Hector Ruiz, Designated Counsel, on the brief).

Before Judges Reisner, Ostrer, and Carroll.

PER CURIAM

Defendant M.E.Z. appeals from the judgment of the Chancery Division, Family Part, entered January 16, 2013, terminating her parental rights to her two sons, M.R.N., now age eleven, and R.Z., Jr., now age three. Defendant R.Z., who is R.Z., Jr.'s father, appeals from the same order which terminated his parental rights to his son. M.N., the biological father of M.R.N., executed a voluntary surrender of his parental rights on August 6, 2012, and is not part of this appeal.

On these appeals, which we have consolidated, defendants contend that the Division of Child Protection and Permanency (Division) did not prove by clear and convincing evidence the four prongs of the best interests test. N.J.S.A. 30:4C-15.1(a). The Law Guardian supported termination before the trial court and, on appeal, joins the Division in urging us to affirm.

Based on our review of the record and applicable law, we are satisfied that the evidence in favor of the guardianship petition adequately supports the termination of defendants' parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2009) (holding that a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial and credible evidence in the record as a whole). Accordingly, we affirm.

I.

Judge Linda G. Baxter set forth the underlying facts in a comprehensive oral opinion. To summarize, the Division first became involved with the family on September 23, 2005, after it received a referral alleging that M.R.N. was living in unsafe conditions with M.E.Z. and a friend. It was further alleged that M.E.Z. and her friend were smoking marijuana. The Division investigated the referral, and determined it to be unfounded. The Division then received six more referrals, many alleging incidents of domestic violence and/or substance abuse, between January 2006 and October 2010. The Division investigated all of these referrals and found that there were no concerns as to M.R.N.'s safety; hence, it did not establish supervision or services for the family. Additionally in September and October 2010, the Winslow Township Police Department (WTPD) responded to the home of M.E.Z. and R.Z., who were now married, for domestic disputes. The police investigated the matters and made no arrests.

In December 2010, January 2011, and March 2011, the WTPD was again called upon to investigate allegations of domestic violence between M.E.Z. and R.Z. In December 2010, R.Z. told police that he and M.E.Z. were arguing because M.E.Z. wanted a divorce, and M.E.Z. threw a book at him. At that time, R.Z. went to police headquarters to apply for a temporary restraining order against M.E.Z. In January 2011, the police responded to the treatment center where M.E.Z. was receiving treatment for back pain, and M.E.Z. stated that she and R.Z. were arguing over everyday issues. R.Z. left before the police arrived. In March 2011, police responded to defendants' residence and met with R.Z., who told the officers that he and M.E.Z. got into a verbal argument, and that M.E.Z. began to hit his vehicle with a shovel until he left for work.

In April 2011, the Division received a referral from the WTPD. Specifically, R.Z. was holding his son, R.Z., Jr., while under the influence and in possession of narcotics when the police went to the home on April 7, 2011, to execute an arrest warrant for R.Z. on a charge of vehicular homicide, which had occurred in August 2010.

Based on this incident, on April 8, 2011, the Division implemented a "safety plan" for the children, whereby M.E.Z. would not allow the children to have any contact with R.Z. until the Division completed its investigation. Within a few days, M.E.Z. violated this plan by allowing M.R.N. to sleep in her home while R.Z. was present. The Division removed both children from M.E.Z. and R.Z.'s care, and placed them with their respective paternal grandparents.

The Division then implemented a reunification plan pursuant to which M.E.Z. and R.Z. were to undergo substance abuse evaluations, substance abuse counseling, domestic violence counseling, and individual and marital counseling. M.E.Z. and R.Z. ultimately failed to significantly comply with these services. M.E.Z. suffered from a number of psychological episodes, and engaged in several acts of domestic violence against R.Z.

On July 20, 2011, R.Z. attended a court-ordered psychological evaluation with Ronald S. Gruen, Ed.D. Dr. Gruen indicated that R.Z. was sincerely interested in parenting his child and stepson but there were some issues interfering with achieving that goal, such as a shaky marriage, financial problems, M.E.Z.'s psychological problems, and previous substance abuse. Dr. Gruen also reported that R.Z. admitted to violating the safety plan. Dr. Gruen was in favor of family reunification following R.Z.'s completion of marriage counseling, drug education and treatment, parenting skills classes, and individual therapy.

A few days later, on July 22, 2011, R.Z. reported an incident of domestic violence, alleging that M.E.Z. assaulted him. R.Z. indicated that M.E.Z. threw an object which struck him over his left eye. The police investigated and spoke with M.E.Z., who admitted throwing divorce papers and a full plastic water bottle at R.Z. M.E.Z. was then served with a temporary restraining order, following which she immediately returned to the residence and assaulted R.Z. again. R.Z. reported the incident to the WTPD, but told them that he did not want M.E.Z. to go to jail.

On July 26, 2011, R.Z. was referred for domestic violence counseling. M.E.Z. was also referred to a domestic violence counselor with the Camden County Women's Center.

On August 2, 2011, a fact-finding hearing pursuant to N.J.S.A. 30:4C-15 to -20 was conducted before Judge Octavia Melendez. Judge Melendez found that "defendants, [M.E.Z. and R.Z.] are unable to safely care for the children due to their history of domestic violence and substance abuse problems." Both defendants refused to take drug screens in court, which resulted in a negative inference against them. The Division was granted care, custody, and supervision of M.R.N. and R.Z., Jr.

In August 2011, M.E.Z. also underwent a psychological evaluation by Dr. Gruen. Dr. Gruen reported that M.E.Z. admitted to past domestic violence incidents and problems with R.Z., and believed R.Z. was lying and cheating on her. Dr. Gruen concluded that M.E.Z. had significant emotional problems, such as bipolar disorder, marital problems, and borderline traits, but that she was "motivated to be a good mother." He further concluded that M.E.Z. "loves and cares about her children, " but is "overwhelmed by her emotional problems and her marital instability" and needs treatment. Dr. Gruen believed reunification was appropriate, but that neither M.E.Z. nor R.Z. was ready at the time and recommended they attend substance abuse programs, and marital and individual therapy.

On September 29, 2011, the court held a compliance review, and continued care, custody and supervision of the children with the Division. M.E.Z. was ordered to attend a new substance abuse evaluation, and R.Z. was ordered to participate in substance abuse treatment. Both defendants were also ordered to submit to random drug and alcohol screenings, individual counseling, marriage counseling, and domestic violence counseling.

In December 2011, R.Z. was again arrested after an automobile accident and charged with D.W.I. Shortly thereafter, he was indicted for second-degree vehicular homicide as a result of the August 2010 incident. R.Z. was incarcerated in December 2011, and remained incarcerated through the guardianship trial.

Judge Melendez held a permanency hearing on March 30, 2012. The judge accepted the Division's permanency plan of "termination of parental rights followed by relative adoption" for M.R.N. within the next year. The court found that it would not be safe for M.R.N. to return home since M.E.Z. had not completed counseling, and M.R.N.'s father, M.N., agreed with the placement. Additionally, the court found the Division had provided reasonable efforts to finalize the permanency plan, and that termination followed by adoption was appropriate since M.R.N. was living with his paternal grandparents for over a year and the grandparents had expressed interest in adoption.

On May 16, 2012, the Division filed a complaint seeking to terminate the parental rights of M.N. and M.E.Z. to M.R.N. On August 1, 2012, the Division filed an amended complaint seeking guardianship of both children. That same day, M.N. executed a surrender of his parental rights to allow the paternal grandparents to adopt M.R.N.

At the guardianship trial, the Division presented four witnesses: the officer who arrested R.Z. in April 2011, the two caseworkers assigned to the family's case, and Linda R. Jeffrey, Ph.D., who performed psychological and bonding evaluations on M.E.Z. and R.Z. M.E.Z. also testified on her own behalf.

Officer Ryan Morgan testified that at the time of his April 2011 arrest, R.Z. had methamphetamines in his possession as well as a prescription for Percocet. Morgan stated that when the officers brought R.Z. to the police station, he was "falling in and out of sleep as we were processing him sitting up." Morgan indicated that R.Z. told him the prescription was for his broken foot.

Caseworker Tawana Walker testified about the Division's history with the family, and the multiple services that defendants were offered. Specifically, Walker testified that R.Z. "was given a substance abuse evaluation, referred to SODAT. He was given a psychological evaluation. . . . individual substance abuse, marriage counseling, and parenting skills." She noted that during the time R.Z. was incarcerated the Division did not have contact with him, nor did he reach out to the Division to request services or visitation with R.Z., Jr. Walker testified that prior to R.Z.'s incarceration, he was attending weekly visits with R.Z., Jr. at the paternal grandparents' home. She indicated that R.Z., Jr. was doing well with the paternal grandparents, who were informed about the difference between kinship legal guardianship and adoption, and opted to adopt R.Z., Jr., so as to provide him stability.

With respect to M.E.Z., Walker testified that she was offered "a substance abuse evaluation, individual counseling, [and] she was given a psychological evaluation." M.E.Z. also met with a domestic violence liaison officer from the Division, and maintained weekly visits with the children.

Dr. Jeffrey testified that R.Z. "was not prepared to provide a safe and stable nurturance parenting for [R.Z., Jr.]." She concluded that R.Z. had serious substance abuse and personality problems that were highly likely to affect his parenting capacity. As a result, Dr. Jeffrey opined that R.Z. would not be able to provide a minimal degree of parenting, and she did not recommend placement of R.Z., Jr. in his care. Dr. Jeffrey further expressed that it would take R.Z. a minimum of two years to rectify the psychological and substance abuse issues necessary for him to provide a minimum degree of care to the child.

With respect to her bonding evaluation of R.Z. and R.Z., Jr., Dr. Jeffrey indicated that even though R.Z. was incarcerated, the child still acknowledged him as familiar. However, she noted that R.Z., Jr. parted with R.Z. without protest. Dr. Jeffrey found that they did not have a secure attachment, and that if the attachment was severed it would not result in harm to the child.

Dr. Jeffrey then testified as to the bonding evaluation between R.Z., Jr. and the paternal grandparents. She noted that the grandparents expressed that they wished to adopt R.Z., Jr., who had a secure attachment to them, which if severed would likely place the child at risk of serious and enduring harm. Dr. Jeffrey further testified that R.Z. did not have the capability to ameliorate the harm that would occur if R.Z., Jr. were removed from his grandparents' care.

With respect to M.E.Z., Dr. Jeffrey found that she "had unresolved adjustment, alcohol/substance abuse, mood regulation, dysregulation, and personality disorder problems that were highly likely to adversely impact and decrease her parenting capacity." Dr. Jeffrey opined that it would take M.E.Z. one to two years of substance abuse and behavioral counseling before she could effectively parent her child.

Dr. Jeffrey next testified as to the bonding evaluation conducted with M.E.Z. and her children. During the evaluation, M.R.N. exhibited signs of anger and restlessness towards M.E.Z., and M.E.Z. directed most of her attention to the younger child, R.Z., Jr. Dr. Jeffrey found that M.R.N. had "ambivalent insecure attachment" to M.E.Z.; that he loved his mother very much but was concerned about her and R.Z., Jr. being safe. Dr. Jeffrey concluded that it could be difficult if the attachment between M.R.N. and M.E.Z. were severed, but that the insecure attachment itself was harmful, and if M.R.N. were exposed to secure attachment, he could heal. Dr. Jeffrey testified that based on the bonding evaluation between M.R.N. and his paternal grandparents, there was a secure attachment, and that severance of this attachment had a probability of causing serious and enduring harm. Dr. Jeffrey believed that the paternal grandparents had the ability to ameliorate the severance of M.R.N.'s insecure attachment with M.E.Z., but M.E.Z. would not be able to ameliorate the harm of severing the attachment between M.R.N. and his paternal grandparents.

Turning to R.Z., Jr., Dr. Jeffrey found that he had an insecure attachment with M.E.Z., and that R.Z., Jr. considers his grandparents his biological parents. Here too, R.Z. Jr.'s bond with his paternal grandparents would ameliorate any harm that would occur through the severance of his bond with M.E.Z. Dr. Jeffrey then indicated that M.E.Z. would not be able to ameliorate the harm that would occur if R.Z., Jr. was separated from his grandparents, as M.E.Z. "is not prepared to provide safe parenting or to address the needs of a child who is suffering that kind of fundamental dislocation." On cross- examination, Dr. Jeffrey was asked about whether the bond between M.R.N. and R.Z., Jr. would be destroyed if placed with two different sets of grandparents. She responded that "the understanding that I have is that there is openness between the grandparents in terms of keeping the children together. That is much preferable than children living in the context of parents who have not addressed such things as domestic violence."

Danny Martinez was the Division caseworker for the family at the time of trial. Martinez testified that he spoke with M.R.N., who indicated that he felt guilty about making a decision with respect to adoption, but that he wished to remain with his grandparents but also see his mother. Martinez confirmed that both sets of grandparents were interested in adopting the children. He also indicated that M.E.Z. had been participating in services at Genesis, where she was doing well, and was set to complete that program in late January.

M.E.Z. testified on her own behalf. She acknowledged that she had agreed to the "safety contract" put in place back in April 2011, but denied violating it. M.E.Z. indicated that her father was mistaken when he told the Division worker that M.R.N. did not stay at his home. M.E.Z. conceded that she did not fully comply with the Division's referral for outpatient substance abuse services, but stated she did not understand why she was being referred when the only narcotic found in her system was prescribed. She regretted not fully complying with the services. M.E.Z. then testified that she successfully completed individual counseling at Genesis. She admitted that financially, she was not in a position to take care of her children at the time of trial, but she felt she was mentally and emotionally able to care for them.

On cross-examination, M.E.Z. acknowledged that M.R.N. wanted to remain with his grandparents, but stated the main reason was because they could financially provide for him and pay for his hockey equipment. M.E.Z. also admitted to having certain anger problems, but denied that she had a bipolar disorder.

On January 16, 2013, Judge Baxter rendered a thorough oral decision finding that the Division had satisfied the four prongs of the best interests test, as set forth in N.J.S.A. 30:4C-15.1a(1) to -15.1a(4), and determined that defendants' parental rights should be terminated. This appeal followed.

II.

In an action to terminate parental rights, the Division has the burden to establish by clear and convincing evidence four elements:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3)The division has made reasonable efforts to provide services to help the 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).]

These four, often overlapping elements, "provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). While a parent's right to raise his or her child is constitutionally protected, id. at 346, that right may be terminated upon a showing by clear and convincing evidence that the child is at risk of serious and lasting future harm judged by the four-prong statutory test. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

Our scope of review in a termination of parental rights case is especially limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Appellate courts should give deference to the Family Part's factual findings based on the trial judge's familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). The trial court's findings should not be disturbed unless they are so clearly mistaken or unsupported that our intervention is necessary to correct injustice. F.M., supra, 211 N.J. at 448. "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision[.]" Id. at 448-49.

Here, Judge Baxter began her analysis by making detailed findings of fact and credibility assessments. The judge deemed Officer Morgan's testimony credible, and found that R.Z. was under the influence of alcohol or narcotics while holding R.Z., Jr. when the police executed the arrest warrant in April 2011. Judge Baxter also found that M.E.Z. had violated the safety plan implemented by the Division, by allowing M.R.N. to be in the home while R.Z. was present.

Judge Baxter then noted that "the Division has provided an array of services to both parents." The Division provided M.E.Z. with MICA counseling, which she failed to complete, a substance abuse evaluation, and outpatient services, for which M.E.Z. was referred to Genesis. The judge found that the Division also provided M.E.Z. with individual and marriage counseling, consultation with a domestic violence liaison, and a referral for domestic violence counseling, which she also failed to attend. Judge Baxter concluded that based on M.E.Z.'s history of domestic violence, she was "quick to resort to physical violence and has great difficulty in controlling her rage and trouble controlling her violent behavior."

Judge Baxter then referenced the findings in Dr. Gruen's psychological reports, indicating that M.E.Z. suffered from bipolar disorder, marital dysfunction, and borderline personality traits. Judge Baxter found Dr. Jeffrey to be extremely credible, based on her level of experience and the difficulty of the evaluation conducted. The judge agreed with Dr. Jeffrey's findings that M.E.Z. has "significant deficits in parenting capacity and has unresolved mental health problems, " and accepted the conclusions reached in Dr. Jeffrey's bonding evaluations.

The judge next addressed the four-prong test contained in N.J.S.A. 30:4C-15.1(a), and concluded that defendants' parental rights should be terminated. Having reviewed the record in light of the contentions raised on appeal, we determine that the trial judge's conclusions regarding all four statutory factors were supported by clear and convincing evidence.

We address prongs one and two together, because "evidence that supports one informs and may support the other." See In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). Under the first prong of the termination statute, the trial court must assess whether there is clear and convincing evidence of harm arising out of the parent-child relationship. N.J.S.A. 30:4C-15.1(a)(1); see K.H.O., supra, 161 N.J. at 348 ("Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship."). The fact that there is no evidence that defendants physically harmed the children does not preclude a prong one finding. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986) ("The absence of physical abuse or neglect is not conclusive[.]" (internal quotation and citation omitted)). It is sufficient to prove the risk or danger of harm. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.Super. 418, 440 (App. Div. 2001). The concern is not only with actual harm to the child but also with the risk of harm, as the court is not required to wait to intercede "until a child is irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383. "Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992).

Here, in finding that the Division satisfied the first prong as to M.E.Z., the judge found that "[M.E.Z.] endangered both her children by engaging in acts of domestic violence in the home, " and that M.E.Z.'s "emotional instability, personality disorder and depression have harmed [M.R.N.] by parentifying him." The judge found that M.R.N. was required to assume the role of a parent by constantly having to worry about M.E.Z.'s well-being. Additionally, the first prong was satisfied through M.E.Z.'s "inability or refusal to protect her children from [R.Z.]." The judge noted that M.E.Z. violated the safety plan and allowed the children to be in the presence of a known substance abuser, which endangered their safety.

M.E.Z. argues that the trial court erred in its determination that she violated the safety plan. However, while the judge misspoke as to the specific date on which the safety plan was implemented, this does not change the result. Clearly the Division implemented the safety plan, and both defendants were advised of its details. M.R.N.'s grandfather indicated to the Division worker that M.R.N. did not stay at the grandparents' house the previous night, and when the grandfather called defendants' residence, R.Z. answered the phone. Additionally, R.Z. admitted violating the safety plan during his interview with Dr. Gruen. There is thus sufficient credible evidence in the record to support the trial court's finding that defendants violated the safety plan.

M.E.Z. further argues that the trial court erred in finding that she harmed the children by exposing them to domestic violence, since the court failed to cite any evidence supporting its conclusion. Again we disagree. Judge Baxter properly pointed out a number of acts of domestic violence committed by M.E.Z. in her decision. Notably, during her first marriage, in 2006, M.N. attempted to hit M.E.Z. and instead struck M.R.N., and in April 2010 M.N. attempted to attack M.E.Z. at M.R.N.'s baseball game. Additionally, during her second marriage, M.E.Z. assaulted R.Z. in December 2010 when she threw a book at him. On July 22, 2011, M.E.Z. again assaulted R.Z. by throwing a water bottle at him. After that incident, R.Z. obtained a temporary restraining order against M.E.Z., which she violated less than an hour after receiving it by assaulting R.Z. again at the home. Further, Dr. Jeffrey testified that M.E.Z. was not prepared to provide a minimal level of safe parenting, and both children would be at risk of serious harm if placed in her care based on her history of domestic violence, substance abuse, and psychological problems, which Judge Baxter found credible and properly accepted.

As to R.Z., Judge Baxter first noted that she agreed with Dr. Jeffrey's testimony that R.Z. suffers from adjustment disorder and substance abuse and personality disorder. She found that the first prong of the test was met because R.Z.'s absence from R.Z., Jr.'s life at critical development stages, due to R.Z.'s incarceration and his continuing to engage in a relationship filled with domestic violence, endangered R.Z. Jr.'s safety, health or development.

R.Z. argues that the trial court afforded improper weight to the fact that he was incarcerated, and was facing the potential of further incarceration, in determining that R.Z. Jr.'s safety, health or development were endangered. He contends that the court failed to consider the fact that he was only incarcerated because he could not post bail, and that he was charged with a second-degree crime which, if convicted, would not likely result in a lengthy prison term.

As an initial matter, Judge Baxter found that "by his lengthy incarceration, [R.Z.] has absented himself from his son's life at a time when his son desperately needs him. [R.Z.'s] criminal trial has not yet been scheduled and he is not scheduled to be released in the near future." The record supports this finding. R.Z. has been charged with a number of criminal offenses that have resulted in his incarceration during R.Z., Jr.'s life, notably, his arrest for vehicular homicide in April 2011, and his December 2011 D.W.I. arrest.

"Imprisonment necessarily limits a person's ability to perform" their parental obligations. In re Adoption of Children by L.A.S., 134 N.J. 127, 138 (1993). "Once imprisoned, a parent [has] difficulty performing the 'composite of tasks' associated with parenthood and cannot continue to undertake or to share the daily responsibilities of raising a child . . . ." Id. at 138-39 (citing N.J.S.A. 9:6-1). Furthermore, a parent's imprisonment substantially hampers "[t]he ability to provide significant nurturing and to maintain an emotional relationship with the child . . . ." Id. at 139.

Here, it is important to note that the trial court's prong one finding did not hinge solely on R.Z.'s incarceration, or his financial inability to make bail. Notably, the nature of R.Z.'s offenses correspond with his use and/or possession of drugs and alcohol, and are indeed integrally related to R.Z., Jr.'s welfare.

The second prong is aimed at determining whether the parent has "cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348. Under the second prong, a trial court determines whether it was "reasonably foreseeable that the parents can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid.

Here, relying on the "undisputed" expert testimony, the court determined that it would take M.E.Z. a minimum of one to two years to resolve her current parenting deficits, and that based on her history of noncompliance, even after two years, M.E.Z. would not have achieved the requirements for safe parenting. As a result, the court found that "[M.E.Z.] is unwilling or unable to resolve the problems that led to the removal of the children from her home. These children should not be asked to wait a minimum of two years. The second prong is satisfied as to [M.E.Z.]." The judge also found that the second prong was satisfied as to R.Z., since he would also require two years of counseling and services to enable him to parent a child, and he was not in a position to receive those services due to his incarceration. Contrary to defendants' arguments, we find these determinations fully supported by substantial credible evidence in the record.

"The third prong requires an evaluation of whether [the Division] 'made reasonable efforts to provide services to help the parent remedy the circumstances that led to removal of the children from the home.'" F.M., supra, 211 N.J. 420, 452 (2012) (quoting N.J.S.A. 30:4C-15.1a(3)). The emphasis on the third prong

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

[Ibid. (citation and internal quotation marks omitted).]

Here, we reject as meritless defendants' argument that the Division failed to provide them with services essential to the reunification of the family. Rather, as Judge Baxter properly found, the Division "offered [M.E.Z.] an array of services that were targeted at her particular parenting deficits and that such services constitute a reasonable effort to provide services to ameliorate the conditions that led to the child's removal." Similarly, the Division provided R.Z. with a substance abuse assessment as well as counseling, which he attended before he was incarcerated.

We similarly reject R.Z.'s argument that the Division and the trial court failed to consider alternatives to termination; specifically, kinship legal guardianship. A parent "may request . . . that the court consider a . . . kinship legal guardianship arrangement as an alternative disposition, " but "[o]nly the [D]ivision or the court" is permitted to ultimately decide whether to seek that alternative disposition. N.J.S.A. 30:4C-87.

The New Jersey Supreme Court has made clear that kinship legal guardianship should only be considered when adoption is not possible:

The plain language of the [Kinship] Act, as well as its legislative history, establish kinship legal guardianship as a more permanent option than foster care when adoption "is neither feasible nor likely" and "kinship legal guardianship is in the child's best interest." N.J.S.A. 3B:12A-6d(3)-(4); [N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J.Super. 76, 88 (App. Div. 2003)]. Conversely, when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1(a)(3).
[N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512-13 (2004).]

Here, kinship legal guardianship was not an available option because both sets of grandparents wished to adopt the children. Id. at 512-13; N.J. Div. of Youth & Fam. Servs. v. T.I., 423 N.J.Super. 127, 137 (App. Div. 2011). Thus, R.Z.'s argument that the court improperly failed to consider the concept of kinship legal guardianship is without merit.

The fourth statutory prong requires the court to determine whether termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). This prong "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The question is "whether a child's interest will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008).

The ultimate determination to be made under the fourth prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. Weighing the potential harm from terminating parental rights against separating the child from foster parents requires expert testimony on the strength of each relationship. Ibid. When a termination action is based on parental unfitness rather than bonding, the proper inquiry under the fourth prong focuses on the child's need for permanency and the parent's inability to care for him or her in the foreseeable future. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J.Super. 582, 593 (App. Div. 1996).

Here, the trial judge relied on Dr. Jeffrey's un-rebutted expert opinion that the children have only an insecure attachment with both parents, whereas they have a secure and stable bond with their grandparents. The court found that defendants would be unable to rectify the harm that would result if the children were separated from their grandparents, while in contrast, the grandparents would be in a position to ameliorate any harm to the children caused by termination. We find ample support in the record that prong four was met.

Affirmed.


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