### RECO R D IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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NEW JERSEY DIVISION OF CH ILD PROTECTION AND PERMANENCY, Plainti ff

- Respondent,

v. D.M.H., Defendant

- Appellant.

__________________________ IN THE MATTER OF THE GUARDIANSHIP OF D.M.G., a m inor.

_________________________ _

Argued December 9, 2020

– Decided Before Judges Ostrer , Accurso and Enright

. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG

- 11

- 00 57

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. T. Gary Mitchell, Deputy Public Defender, argued the cause for appellant ( Joseph E. Krakora, Pub lic

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough it is posted on the internet , this opinion is binding o nly on the parties in the case and its use in other cases is limited

. R

. 1:36

- 3.

Febr uary 1 , 202 12 A

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- 18T2 Defender, attorney; T. Gary Mitchell, of counse l and on the briefs). Salima E. Burke, Deputy Attorney General, argued the cause for respondent ( Gurbir S. Grewal, Attorney General , attorney; Melissa H. Raksa , Assistant Attorney General, of counsel; Sal ima E. Burke, on the brief). David Valentin, Assis tant Deputy Public Defender, argued the cause for minor D.M.G. ( Joseph E. Krakora, Public Defender, L aw Guardian, attorney ; M eredith Alexis Pollock, Deputy Public Defender, of counsel; David Valentin, on the bri ef).
PER CURIAM Defendant D.M.H. (Dana 1 ) a ppeals from the Family Part's May 2, 2019 judgment terminating h er parental rights t o her daughter D.M.G. (D aisy), born November 27, 2010. Dana challenges the court's findings on all four prongs of the best in terest s standard

. N.J.S.A. 30:4C

- 15.1(a). Th e Law Guardian for the child joins the Division of Child Protection and Permanency (Division) in opposing the appeal. Having reviewed the record in light of Dana's arguments, we conclude that the trial court correctly applied the governing legal principle s, and sufficient credible evidence supports its finding that the Division satisfied the best interests standard. Therefore, we affirm.

1 In accord with Rule 1:38

- 3 and the for the reader's convenience, we use initials and pseudonyms for the parties.3 A

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- 18T2 I. This case followed an a typical path : Dana entered an identified surrender of her parental rights ; when the identifi ed resource parent's adoption fell through
years later , Dana decided to assert her parental rights while the Division sought termination.
Da isy's initial placeme nt occurred in March 2013 after Dana reported she was homeless and jobless; Dana suffered fr om behavioral health disorders; and Daisy was exposed to domestic violence between Dana and Dana's then boyfriend . In the two

- and

- a - half years that followed, Dana still lacke d stable housing and employment; she was incarcerated for several months; and , re sist ed offered services to address her untreated mental illness. S he also rarely visited her daughter ; she saw her just five times in the year before the surrender. In early 2014, while in the care of her third non

- relative placement, Daisy was diagnos ed with post

- traumatic stress disorder and attention

- deficit disorder and exhibi ted other problematic behaviors.
In August 2015, faced with an approaching guardianship trial, Dana surrendered her parental rights provided that Daisy's then

- resource parent , M.M. (Marcy) , adopt her. Daisy had been living with Marcy since April. It was Daisy's fifth placement. When Dana surrendered her rights, she acknowledged4 A

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to the court that she suffered from mental illness that she needed to address; Marcy was a loving foster parent; and Marcy's adoption of Daisy would serve Daisy's best interests. The following year, the court termi nated Daisy's father's parental rights after a trial, and we affirmed the trial court's judgment, N.J. Div. of Child Prot. & Permanency v. J.E.G. , No. A

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- 15 (App. Div. Dec. 9, 2016), freeing Daisy for adoption. 2 But, Daisy's adoption by Marcy was n ot to be

. In the summer of 2016, a boy sexually assaulted Daisy while the two were in daycare. The boy, who had also been placed in Marcy 's home, was removed and Daisy remained and received counseling. Notwithstanding that incident, Daisy evidently was strongly bonded to Marcy, and identified her as her mom. She had progress ed behavi orally and was mainstreamed at school. However, in Nove mber 2017, Daisy was removed from Marcy's home be cause Marcy allegedly endangered the welfare of another child in her care. Following Daisy's removal from Marcy's home , and then an unsuccessful placement in another home, D aisy experienced a months

- long be havioral health crisis that included placement in

2 In contrast to her position in Daisy's case, Dana contested ter mination of her parental rights to a son, born April 10, 2015, which was granted after a trial in June 2017. N.J. Div. of Child Prot. & Permanency v. D.M.H. , No. FG

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- 17 (Ch. Div. June 30, 2017). Dana evidently did not appeal that judgment.5 A

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multiple therapeutic treatment homes. Marcy was eliminated as a potential adoptive parent. In March 2018, the Division notified Dana , then living in Colorado, that her parental rights were reinstated , b ecause of the failed placement with Marcy

. 3 At that point, Dana said she wanted to visit Daisy, with the goal of regaining custody of the daughter she had not seen in over two

- and

- a - half years

. The Division opposed reunification and propose d a plan to te rminate her parental rights . The Division contended that Dana had no t , in the intervening period, successfully addressed her mental illness or instability , and s he remained unable to successfully parent Daisy, especially given Daisy's special needs.
Bac k in 2016, an evaluation in Colorado concluded that Dana needed long

- term psychiatric treatment, but her compliance with treatment was episodic. In the months leading up to the guardianship trial in early 2019, Dana was unable to visit her daughter . D ais y's therapist believed that it w ould interfere with her recovery. Although the court permitted defendant to conduct an expert evaluation on that point, none was performed. Also, i n January 2019,

a Colorado assessment under the Interstate Compact for P lac ement of Children

3 If the identifi ed person cannot adopt the child , the "identified surrender" becomes "void" and the surrendering parent's rights are "reinstated." N.J. Div. of Youth & Fam. Servs. v. D.M.B. , 375 N.J. Super. 141, 145 (App. Div. 2005)

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(ICPC) found that Dana was not a suitable placement for Daisy because of a pending criminal prosecution. She was charged with felony menacing with a real or simulated weapon , assault, and harassment. By the time of trial, Dana was li vin g in a one

- bedroom subsidized apartment, obtained through a program for the disabled, which did not permit children. The Division presented its case through the testimony of two psychological experts, Meryl Udell, Psy.D. , who evaluated Dana and Da isy in mid

- and late

- 2018 , and Da vid Brandwein, Psy.D. , who evaluated Daisy in April
2017 ; Steve Cohen, a licensed social worker , and Daisy's therapist at the children's psychiatric community home where Daisy had been residing since July 2018 ; the Division adopt ion worker assigned to the case; and her supervisor, who address ed prospects for adoption. The Law Guardian presented no witnesses. Dana testified on her own behalf but presented no other witnesses. We shall not review the trial testimony in depth. Suf fice it to say that the two psychologists and the therapist agreed that Daisy was psychologically fragile and suffered from multiple broken attachments. She had special needs and required parenting attentive to those needs. Cohen testifi ed that if Daisy continued to progress, her next step s would be to transfer in a few months to a

non - adoptive treatment home that offered therapeutic services, and then, after7 A

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four to six months, to a n adoptive home. He recommended against contact between Dana and Daisy, agreeing that introducing Daisy to a relationship that "may not be secure" would be harmful. Dr. Udell opined that Dana did not appreciate Daisy's needs and w as unable to meet them due to her own housing and employment instability, and her persistent ps ychological issues that she had not address ed adequately. Dr. Udell's diagnosis included bipolar disorder, attention deficit disorder, and an unspecified personality disorder. However, she noted that when Dana sought treatment in Colora do, she described more extensive symptoms, including those related to post

- traumatic stress disorder. Dr. Udell stated that Daisy would suffer harm if removed from her program and reunited with her mother, especially in Colorado. Dr. Brandwein also expressed concern abou t relocating Daisy to Colorado, based on what he
k new of her before the trau matic removal from Marcy's home. He also stated that Daisy's success in therapy would be negatively affe cted if a caregiver minimized her needs. Dr. Udell did n ot perform a bon ding evaluation, because Daisy's therapist believed contact with Dana would be harmful, and Daisy did not indicate "that she knew who her mother was or that she missed her." Dr. Ud ell supported the8 A

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plan of select

- home adoption, opining that termination wo uld not cause Daisy more harm than good.
Dana expressed confidence that she could address Daisy's needs if gradually reunited with her. Based on the similarity of their diagnoses, Dana said she would understand what Daisy was experiencing. She said she would secure the mental health treatment and therapy Daisy needed. Notably, she articulated a greater understanding of Daisy's needs than she expressed in her evaluation with Dr. U dell. She testi fied that she had achieved housing stability and would be a ble to secure a larger apartment if s he regained custody of Daisy. Her income consisted of Social Security payments of $771 a month, but she said she recently landed a job . Howeve r, she had not yet started, and she provided

no documentary proof of the em ployment. She said she was engaged in
treatment for her own mental illness

. She added that the criminal charges that had been pending against her were dismissed , although she did not present an order of dismissal

. The court credited the Division's witn esses, but found Dana was not credible, because she answered questions erratically and some of her answers

were uncorroborated by other evidence.9 A

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After reviewing in detail the documentary evidence and testimony, t he court found that the Division establis hed, by clear and convincing evidence, each of t he four prongs of the best interests of the child test, set for th in N.J.S.A. 30:4C

- 15.1(a):

(1) The child's safety, health, or development has been or will continue to be endangered by the parental relations hip; (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 sepa rating the child from his [or her] resource family parents would cause serious and enduring emotional or psycho logical harm to the child; (3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which l ed to the child's placement outside the home and the court has considered alternatives to termination of parent al rights; and (4) Termination of parental rights will not do more harm than good. The court found prong one was met by proof that Dana had den ied Daisy nurturing and caring for an extended period of time, with the court noting the infrequency of Dana's visitation. The court also found that t he parental relationship endangered and would continue to endanger Daisy's safety, health10 A

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or development because of Dana's "failure to maintain appropriate and stable housing, and resolve her mental health and substance abuse issues." The reference to substance abuse was based on Dana's frequent marijuana use. With respect to count two, the court found tha t Dana was unable or unwilling to eliminate the harm Daisy faced, or to provide her a safe and stable ho me . The court noted that in the six years since Daisy's initial placement, Dana remained non

- compliant with treatment, was unable to maintain stable ho using, and barely attended visitation when given the opportunity. Delaying permanency would cause Daisy additional harm. The court was also firmly convinced that the Division made reasonable efforts required by prong three to provide Dana services to re mediate the circumstances that led to Daisy's placement outside the home. The court noted the Division ' s efforts to provide supervised visitation, numerous substance abuse and psychological evaluations, parenting classes, and transportation assistance.
D ana declined a Division worker's offer to help secure removal of a welfare program sanction. The court also noted the Division's efforts to explore placements with relatives, who were ruled out because the y were unqualified, or unwilling to participate. A fter the adoption fell through, the Division twice sought ICPC studies in Colorado. Both times, approv al of placement was not11 A

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secured, first because Dana was homeless; and then because she faced criminal charges. Finally, the court found that terminati on would not do more harm than good. Based on Dana's unaddressed mental health and substance abuse issu es, and her "instability and inconsistency," t he court concluded th ere was "no realistic likelihood" that Dana could "safely and appropriate ly care for her child now or in the foreseeable future." Daisy did not view D ana as her mother. Daisy had not seen Dana in four years. The court endorsed Dr. Udell's view that Daisy would suffer harm if she left her current residential program and reengag ed wit h
Da na. But, Daisy would suffer no significant harm if her relationship with Dana were terminated. The court also credited a Division witness's testimony that an adoptive home would become available when Daisy completed treatment. A year after th e court's judgment, the Division notified the court, under R. 2:6

- 11(f), that Daisy had been in the same treatment home since May 2019. Contrary to Cohen's testimony that a treatment home would be non

- adoptive, the Division stated that "more recently, her treatment home parent has in dicated a desire to adopt her." At oral argument, the Law Guardian asserted that Daisy eagerly wished adoption.12 A

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In her appeal, Dana challenges the court's finding on each of the four prongs of the best interests test.
II.
W e exercise limited review of the trial court's decision. In re Guardianship of J.N.H. , 172 N.J. 440, 472 (2002). We defer to the trial court's fact

- finding because of its "special ex pertise" in family matters and its "superior ability to gauge the credib ility of t he witnesses who testify before it ." N. J. Div. of Youth & Family Servs. v. F.M. , 211 N.J. 420, 448 (2012). Absent legal error, which we review de novo, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan , 140 N.J. 366 (1995) , o ur role is to examine the rec ord and determine if it contains "substantial and credible evidence to support the family court's decision , " F.M. , 211 N.J. at 448. Put another way, we may disturb the trial court's findings only if "they are so wide of the mark t hat our in tervention is

n ecessary to correct an injustice." Id. at 448 (internal quotation marks and citations omitted). If there is adequate support for the court's judgment, we may not "second

- guess" it, even if we would have reach ed a different conclusion. Id.
at 448

- 49.
At the outset, defendant argues that the trial court ' s findings are not entitled to the usual deference because the court relied on a voluminous13 A

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documentary record, and on witnesses who also relied on records of incident s about which they had no personal kno wledge. We are unpersuaded

. This is not the "rare occasion[]" when we may withhold deference to the trial court because "no hearing t [ook] place, [and] no evidence [was] admitted." N.J. Div. of Youth & Family Servs. v. G.M. , 198 N.J. 382, 396 (2009)

. Contrary to defendant's argument, this case did "tur n upon conteste d issues of witness credibility. " N.J. Div. of Child Prot. & Permanency v. N.B. , 452 N.J. Super. 513, 521 (App. Div. 2017). For one , Dana testified at length about wha t she would do in t he future, if given the opportunity to reunite with her daughter , including adhering to her own mental health treatment, assuring that Daisy received treatment, and maintaining housing stability. Statements about future behavior raise a quintessential cre dibility question. We are obliged to defer to the trial judge's determination that Dana was not credible. We also reject defendant's argument that the court did not apply the "clear and convincing" standard of proof , N.J. Div. of Yout h & Family Servs. v . A.W. , 103 N.J. 591, 612 (1986), and did not resolve " all doub ts

. . . against termination

o f parental rights," N.J. Div. of Youth & Family Servs. v. E.P. , 196 N.J. 88, 102

- 03 (2008) ; A.W. , 103 N.J. at 608. The court correctly articulated the standard,14 A

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an d applied it to the facts in this case , notwithstanding Dana's disagreement with the result

. We turn next to defendant's challenge to the trial court's best interests analy sis. We find no legal support f or defendant's argument th at "the evidence releva nt under prong on e should have been limited to the time after parental rights were reinstated for [Dana] in M ay 2018, " and that "what occurs before a surrender cannot be deemed harm." To the contrary, the C ourt i n E.P. , 196 N.J. at 104

- 05, considered even ts before and after a parent 's failed ident ified surrender in finding the Division satisfied the first two prongs. A parent's "past conduct can be relevant . . . in determining risk of harm to the child," N

. J

. Div

. of Youth & Fam

. Servs

. v. I.H.C. , 415 N. J. Super. 551, 573 (App. Div. 2010), and the trial court did not err in considering it here . Furthermore, the court did not rely on Dana's unselfish surrender of her rights in 2015 as proof of harm; the

cou rt relied on the facts that preceded it. The r ecord amply supports the cou rt's finding that Dana endangered Daisy's health or development by "withdraw[ing] . . . that solicit u d e, nurture , and care for an extended period of time [which] is in itself a ha rm " under prong

one, see In re Guardianship of D. M.H. , 161 N.J. 365, 379 (1999), and by failing to adequately address her own mental illness, see F.M. , 211 N.J. at 450

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(stating that u ntreated mental illness that threatens harm to a child may disqualify a parent from raising the child). After Daisy's placement in 2013, Dana's visits with her daughter were few and far between. We recognize that the two

- and

- a - half

- year - long pre

- surrender period included several months when Dana was incarcerated. We also recognize that for a brief period , the trial

cour t had suspended visitation to coerce Dana to submit to a required psychological evaluation that she repeatedly avoided. Nonetheless, the parental relationship was harmed by Da na's absence from her daughter's life. The court also credited Dr. Udell's te stimony that Dana had not obtained the level of treatment needed to address her mental hea lth issues. The record demonstrated that, when her mental illness was untreated or inadequately treated, she lacked the capability to consistently and appropriately fulfill parenting responsibilities. "Courts need not wait to act until a child is actuall y irreparably impaired by parental inattention or neglect." D.M.H. , 161 N.J. at 383

. The court also properly considered the potential harm to Daisy if she were
ret urned to Dana. See A.W. , 103 N.J. at 605 (stating "[t] he potential return of a child to a parent may be so injurious that it would bar such an alternative"). The court concluded, with sufficient support in the record, that Dana lacked the16 A

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necessary under standing of Daisy's needs. And, based on her own instability and persistent mental health issues, Dana lacked the capability to meet them into the future. We do not minimize the significant harm that Daisy experienced while in placement, including the se xual assault and the cascade of psychological conditions that followed her removal from Ma rcy's home. But th at harm does not mitigate or excuse Dana's harm to Daisy, which the Division established under prong one. It is inappropriate "to consider as a fac tor mitigating or excusing the showing of injury to the children that . . . their placeme nt had not been successful . . . [or] there had been difficulties with the new foster parent."
See A.W. , 103 N.J. at 614. Turning to prong two, there was sufficien t evidence in the record to support the court's conclusion that Dana was unable or unwilling to eliminate the harm facing Daisy, or to provide a safe and stable home for her ; and delay in a permanent placement would add to the harm. The court's decision d id not turn on Dana's "needing government assistance," as she argued. It turned on the trial court's determination, based in part on its assessment of Dana's credibility, that Dana had not yet achieved the stability in her own life

— by obtaining and keep ing appropriate housing, and managing her mental illness

— that was a17 A

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prerequisite to her providing what her daughter needed. Dr. Udell's opinion buttressed the court's conclusion that Dana was unable or unwilling to meet her daughter's needs. Prong two requires a judge to peer into the future and "'determine whether it is reasonably f oreseeable that the parents can cease to inflict harm upon the child[] entrusted to their care.'" A.W. , 103 N.J. at 607. In Dana's case, the court concluded it was not. T here was sufficient credible evidence in the record to support the court's conclusi on. D ana also contends the court placed undue weight on her legal use of marijuana in Colorado. The issue is not the legality of marijuana use. It is whether Dana's conced ed daily use of marijuana would affect her ability to attend to her responsibilitie s as a parent. We recognize that the Division bears the burden to demonstrate that drug use poses a risk of harm. N

. J

. Div

. of Youth
& Fam

. Servs

. v. V.T. , 423 N.J. Super. 320, 331

- 32 (App. Div. 2011). However, Dana never complied with the court's order to submit to a substance abuse evaluation and comply with its recommendations. In any event, there was sufficient support of the court's prong two finding, without referen ce to Dana's marijuana use. Regarding prong three, the court appropriately relied on the services offered before Dana's identified surrender, for the same reasons it was18 A

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appropriate to rely on the harm that preceded the surrender. The court's conclusion that those services met prong three was supported by sufficient credible evidence.
We reject Dana's argument that the trial court's prong three finding should be set aside because the Division failed to allow visitation after the failed placement. In m aking reasonable efforts, the Division is required t o facilitate

" appropriate visitation." N.J.S.A. 30:4C

- 15.1(c)(4) (emphasis added). The Division may restrict visitation when it would be "psychologically harmful," N.J.A.C. 3A:15

- 1.15(a)(1), a decision that may be based on a "mental health therapist's re commendations," N.J.A.C. 3A:15

- 1.15(a)(1)(iii). The trial court reasonably relied on the advice of Daisy's therapist that visitation would be harmful , in other words, inappropriate

. 4 The court granted D ana's counsel the opportunity to obtain an independ ent evaluation regarding visitation, to challenge reliance on the therapist's opinion, but no independent evaluation was provided to the court. On the other hand, as the Division concedes, it failed to promptly inform Dana of the failed adoption. But, that is not "fatal," since Dana participated i n

4 Dana argues that the therapist was deprived of essential information about Daisy's mistreatment in prior placements, but Dana does not demonstrate how that would have changed the therapist's opinion.19 A

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the case for many months after she received formal notice her rights were reinstated

. See N

. J

. Div

. of Child Prot

. & Permanency v. P.O. , 456 N.J. Super. 399 , 409 (App. Div. 2018) (noting that lack of notice of a failed identified surrender was "not fatal to the determination" to terminate parental rights, because the "[d]efendants' rights were restored and they were parties to a full trial on the merits"). W e also recognize that, despite the efforts of the D ivision caseworker, Dana's lack of a full understanding of Daisy's mental health needs could be attributed to the Division's failure to convey that information. See N.J.S.A. 30:4C

- 15.1(c)(3) (defining "re asonable efforts" to include "informing the parent at appropriate intervals of the child's progress, development, and health"). However, the reasonableness of the Division's efforts must be viewed in their totality. See N.J. Div. of Youth & Fam

. Servs. v . M.M. , 189 N.J. 261, 286 (2007) (noting that "[a]lthough parents always can argue that [ the Division ] should have done more, the third prong" can be satisfied when considering "the services provided and the various efforts that were expended")

. Notably, Dana testified that she received all the servi ces she needed. Finally, we d iscern no error in the court's finding that termination of Dana's rights would not do more harm than good

. Dana's argument focuses on Daisy's uncertain prospects, at the time of trial, for select home adoption . Dana20 A

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conten ded that severing Daisy's ties with her mother would certainly do more harm than good if Daisy never achieved the permanency of an adoptive home and became instead a "legal orphan." Dana also highlights the ha rm that Daisy previously experienced in Divisi on custody, particularly the sexual assault that another child committed against her while in day care. Contending that Dr. Udell was uninformed about Daisy's mistreatment, Dana also challenges the court's rel iance on Dr. Udell's opinion that termination wo uld not do more harm than good. We are unpersuaded. It is for the fact

- finder, in assessing an expert's testimony, to determine the im pact of the expert's failure to consider relevant information . We are ob liged to defer to the trial court's decision t o credit Dr. Udell's opinion. She testified that Dana needed significantly more treatment tha n she was receiving; she lacked the capacity to meet Daisy's needs; or to mitigate the harm she would suffer by disr upting her therapy in New Jersey. Also, t he r elationship between Dana and Daisy was essentially non

existent. Dana described it as "inchoate

. " But , evidently, it wa s not even that. Daisy's therapist stated that Daisy avoided any discussion of her natur al mother and used "mom" to describe subsequent caretakers. Although "[ a ] court should hesitate to terminate parental rights" absent "a permanent plan that will satisfy21 A

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the child's needs," N.J. Div. of Youth & Family Servs. v. B.G.S. , 291 N.J. Super. 582, 593 (App. Div. 1996), sometimes, termination " must precede the permanency plan, " A.W. , 103 N.J. at 611. Particularly given the harm Daisy suffered as a result of prior f ailed pre

adoptive placement, Dana questioned the likelihood that the Division woul d ultimately succeed in finding Daisy a pre

- adoptive home. However, i n this case, we have been informed that the Division's goal o f locating an adoptive home has been reali zed. That fact provides additional support for the court's conclusion that termina tion of Dana's rights would not cause more harm than good. Affirmed.