RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1741-18T3

NEW JERSEY DIVISION 

OF CHILD PROTECTION 

AND PERMANENCY,

Plaintiff-Respondent,

v.

S.R.,

Defendant-Appellant/

Cross-Respondent,

and

R.R.,

Defendant.

IN THE MATTER OF THE

GUARDIANSHIP OF Me.R., a Minor,

Respondent/Cross-Appellant,

and

Ma.R., 

NOT FOR PUBLICATION WITHOUT THE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.
2

A-1741-18T3

a Minor.

Submitted March 3, 2020 – Decided March 23, 2020

Before Judges Accurso, Gilson and Rose.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Monmouth County, 

Docket No. FG-13-0038-18.

Joseph E. Krakora, Public Defender, attorney for 

appellant/cross-respondent (Robyn A. Veasey, Deputy 

Public Defender, of counsel; Anna F. Patras, 

Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for respondent/cross-appellant (Margo E.K. 

Hirsch, Designated Counsel, on the brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Melissa H. Raksa, Assistant Attorney 

General, of counsel; Christina Anne Duclos, Deputy 

Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,

attorney for minor (Linda Vele Alexander, Designated 

Counsel, on the brief).

PER CURIAM

Defendant S.R. appeals a Family Part judgment terminating her parental 

rights to her two daughters, Me.R. (Meredith), born in March 2004, and Ma.R. 
3

A-1741-18T3

(Mary), born in April 2006.1 The same judgment also terminated the parental 

rights of the children's biological father, R.R. (Ralph), who is not a party to this 

appeal.2

On appeal, defendant seeks reversal of the judgment, contending the 

Division of Child Protection and Permanency failed to establish the four prongs 

of the "best interests of the child" standard, N.J.S.A. 30:4C-15.1(a), by clear and 

convincing evidence. Alternatively, she seeks a remand, claiming the trial court 

failed to set forth sufficient findings of fact and conclusions of law as required 

by Rule 1:7-4(a). Meredith's law guardian cross-appeals, seeking the same relief 

as defendant.3 Mary's law guardian supported termination before the trial court 

1

 We use initials and pseudonyms to protect the privacy of the children, see R.

1:38-3(d)(12), and for ease of reference.

2

 The couple's sons, E.R. (Eric), and J.R. (Jack), were not named as parties in 

the guardianship action because Eric had reached the age of majority and Jack 

had been placed in the legal custody of defendant's mother. While the appeal 

was pending, Jack reached the age of majority.

3

 At the time of the guardianship trial, Meredith had been placed in a preadoptive home in Wisconsin. In January 2019, while this appeal was pending, 

Meredith was removed from that placement and now resides in a resource home 

in New Jersey. Thereafter, Meredith's law guardian filed the present crossappeal. 
4

A-1741-18T3

and, on appeal, joins the Division in urging us to affirm. Having considered the 

parties' arguments in light of the record and controlling law, we affirm.

I.

To place the legal issues in context, we set forth in some detail the facts 

and procedural history from the testimony adduced at trial and the voluminous 

record before the trial court.4 

To support its claim that defendant's parental rights should be terminated, 

the Division presented the testimony of the two caseworkers, who were 

successively assigned to the family after the children's removal; an adoption 

supervisor, who testified about the select home adoption process; and David 

Brandwein, Psy.D., the Division's expert, who performed psychological 

evaluations of, and a bonding evaluation between, defendant and the girls. The 

Division also introduced in evidence more than thirty documents, including the 

caseworkers' extensive reports; Dr. Brandwein's reports; medical records of 

defendant and the children; defendant's drug tests; and rule-out letters. 

Defendant neither presented documentary evidence nor called any witnesses. 

4

 Defendant's appendix on appeal includes thirty volumes, containing more than 

5,000 pages of documents.
5

A-1741-18T3

Her testimony was limited to Meredith's then placement in Wisconsin.5 The trial 

court interviewed both girls in camera pursuant to Rule 5:12-4(b). The trial 

spanned four non-consecutive days during September, October, and November 

2018. 

The family first came to the Division's attention in August 2010, when 

Meredith was six years old and Mary was four. Allegations that the children 

were inadequately supervised and the home was unkempt were unfounded. 

Similar referrals followed over the next six years, but none of the allegations 

was substantiated. 

Relevant to this appeal, during a substance abuse evaluation arranged by 

the Division in July 2013, defendant tested positive for benzodiazepines, 

oxycodone, buprenorphine (the active ingredient in Suboxone), and opiates. 

Defendant denied illegal drug use and ingesting Suboxone, claiming her doctor 

had prescribed Xanax (a benzodiazepine), Percocet, and Fentanyl on an "as 

needed" basis the previous year. But, the doctor told the Division he only had 

prescribed Xanax. Diagnosed with opioid abuse, defendant was recommended 

for intensive outpatient treatment. She agreed to attend a program but failed to 

5

 Defendant testified that Meredith wished to return to this State to be near her 

friends and family. As noted above, the Division has returned Meredith to New 

Jersey, thereby rendering that issue moot.
6

A-1741-18T3

follow through. The Division sought an order compelling defendant to comply, 

but the court denied the Division's request for care and supervision of the family.

Nearly two years later, in April 2015, defendant again tested positive for 

benzodiazepines and opioids. The Division referred defendant for a substance 

abuse evaluation, but she neither completed the evaluation nor submitted 

additional urine samples. Two months later, defendant tested positive for 

similar substances and declined to complete a substance abuse evaluation. 

The precipitating event that led to the guardianship complaint occurred in 

March 2016, when Mary told a school worker she had accompanied her father 

to his friend's house "to get his medicine." According to Mary, her father and 

his friend sat in a car "for [ten] minutes" and took "the same medicine." Mary 

believed her father had ingested "Xany," but she was not sure. Mary said her 

father brought the "medicine back home to share with" defendant. She said her 

parents usually took the medicine at nighttime, but she also saw them "cut the 

medicine in the morning and take a little." Mary was afraid; she did not want 

her parents to get in trouble or go to jail.

Mary repeated the same account to the Division, adding she had seen her 

parents crush "Xanies, greens and blues," and use a straw to "slurp" their 

medication; on one occasion, Mary saw her parents "use their nose" to do so. 
7

A-1741-18T3

Mary did not feel safe at home. She was angry with her parents for taking too 

much medication because it made them tired and cancel after-school plans with 

her. Meredith denied her parents used illegal drugs, but said their medication 

made them drowsy. The children reiterated the same accounts during their 

interviews with law enforcement.

Both parents were charged with child endangerment and detained in the 

county jail.6 Although defendant acknowledged she had abused Xanax in the 

past, she denied illegal drug use at the time of the removal. Defendant claimed 

she had been prescribed Xanax for a seizure she had suffered during the prior 

year, but she failed to produce a Xanax prescription or pill bottle. 

By the time of the guardianship trial, the Division had investigated and 

ruled out four maternal relatives and a family friend as potential placements for 

the girls, whose placements changed repeatedly after their removal. During the 

first year, Meredith and Mary were placed together in four different resource 

homes. In April 2017, however, the girls experienced significant health issues: 

Meredith underwent a cardiac ablation to correct supraventricular tachycardia; 

Mary was diagnosed with Type I diabetes following a nine-day hospitalization 

for diabetic ketoacidosis. Meredith and Mary have not lived together since that 

6

 Apparently, criminal charges against both parents were dismissed.
8

A-1741-18T3

time. Meredith was placed in three different resource homes after a short stay 

in a shelter following her hospitalization; Mary was placed in a regular resource 

home after a three-month stay at two medical group homes following her 

hospitalization. 

During its many years of involvement with the family, the Division 

offered numerous services to defendant, attempting to remediate the substance 

abuse issues that led to the removal of her children. Those services included 

referrals for substance abuse evaluations and treatment; psychiatric and 

psychological evaluations and treatment, including in-home therapy; and parent 

mentoring services. The Division provided transportation when needed. 

Defendant was mostly non-compliant with the services offered. Between 

July 2016 and November 2017, defendant missed nearly twenty substance abuse 

evaluations. She tested positive on six occasions for various substances, such 

as benzodiazepines; opiates, including morphine; and opioids, including heroin 

and oxycodone. As she did prior to the removal, defendant attributed her 

positive drug test results to her prescribed medication. Defendant refused to 

comply with recommended inpatient substance abuse treatment, and failed to 

complete an intensive outpatient program that she had selected. She was 
9

A-1741-18T3

discharged from a Division-recommended individual therapy services program 

for noncompliance, then failed to attend another program that she had selected. 

The Division facilitated weekly therapeutic and supervised visitation with 

Meredith and Mary, which often took place three times per week. The first 

caseworker testified defendant generally was compliant and consistently 

available for visits when they occurred in the home where she resided with her 

grandparents. But after visits were moved to the community, "there were more 

cancellations or no-shows." Defendant typically attributed missed visits to her 

seizures and other medical issues, or Ralph's hospitalizations. 

According to the caseworkers, defendant appeared to be under the 

influence of substances during more than a dozen visitations. For example, 

defendant was "blinking slowly and deliberately . . . and looking around the 

room wildly" during a visit in April 2017. Thereafter, she refused the 

caseworker's request for a drug screen. Four months before the commencement 

of trial, defendant similarly appeared to be under the influence during a doctor's 

appointment for Mary.

The first caseworker also testified about the Division's concerns that 

defendant repeatedly provided the children with "sweets, candy, soda, [and] fast 

food" during visitations, even though she was aware of the girls' dietary 
10 A-1741-18T3

restrictions. For example, during a visit, defendant offered Mary an ice cream 

cone, which caused the child to cry and remind defendant she was unable to eat 

ice cream. Similarly, after Meredith's cardiologist had advised she could not 

consume chocolate or caffeine pending the cardiac ablation procedure, 

defendant offered Meredith a chocolate bar and chocolate ice cream, which 

upset Meredith.

Dr. Brandwein evaluated defendant on two separate occasions. 7 He 

opined defendant was unable to safely parent her daughters due to her substance 

abuse and failure to comply with the Division's services. He found defendant's 

insight and judgment were poor because "she was loath to accept any 

responsibility for her own behavior and denied, minimized, and rationalized the 

incidents that have led to her children remaining in the Division's custody for 

over two years." 

Dr. Brandwein's diagnostic impression of defendant included:

• Major Depressive Disorder, recurrent, moderate, 

with anxious distress, with panic attacks

• Anxiolytic Use Disorder, severe

• Opioid Use Disorder, severe

7

 Because defendant arrived late for her appointment, Dr. Brandwein could not 

complete her evaluation in one visit. He testified defendant's level of anger and 

irritation at the caseworker – who was unable to drive defendant home from the 

appointment – was "highly inappropriate" and "off the charts" in the presence 

of her daughters.
11 A-1741-18T3

• Paranoid and Dependent Personality Patterns

He opined defendant's diagnoses of severe anxiolytic use disorder and severe 

opioid use disorder impaired her ability to care for her daughters. Dr. Brandwein 

explained a "diagnosis of severe anxiolytic use disorder" is the need "to take 

more and more . . . medication to feel [its] effect," which impacts the person's 

functioning and leads to "vocational, familial or legal problems." 

Although Dr. Brandwein observed the Division had offered defendant "a 

variety of services to address these conditions," he found she had not engaged 

in any of those services "in a meaningful way" and "presented with an open 

mistrust of her service providers, seeking to change them when they d[id] not 

see things her way" or "after she was confronted by them about her own 

behavior." He believed additional services likely would have been met "with 

the same fate as previous services" because defendant demonstrated "little to no 

propensity for behavior change." Defendant's resistance to services suggested 

she was "more interested in using substances than parenting" her daughters. 

In sum, Dr. Brandwein stated defendant

denie[d] substance-related problems that are . . . quite 

easy to see based upon the results of her urine 

screenings (repeated positives for morphine, likely 

related to heroin use); show[ed] little motivation to stop 

taking habit-forming medication; and ha[d] been noncompliant with her medication regimen for a seizure 
12 A-1741-18T3

disorder. Additionally, [she] blame[d] everyone else 

but herself for the reasons her children have not yet 

returned to her care, including [Ralph] and the 

Division, and seem[ed] painfully averse to the kind of 

introspection that could produce behavior change. 

Dr. Brandwein found Meredith and Mary were bonded to defendant and 

clearly viewed her as their mother "from a physical and psychological 

perspective." Due to their multiple placements, neither child had developed "a 

relationship with other adult caregivers that, from a psychological perspective, 

could approximate or substitute for the parental relationship." Nonetheless, Dr. 

Brandwein opined that the "health of the bond" with defendant was "quite poor" 

and the girls' relationship with defendant was "co-dependent, unhealthy, and 

based on a view of [defendant] that conforms more with fantasy than reality." 

Importantly, the doctor determined defendant prioritized her own needs over 

those of her daughters. 

Dr. Brandwein expressed his support for select home adoption because 

defendant had "clearly chosen illegal drug use and/or habit-forming prescription 

medications over being reunified" with the children, and nothing had changed 

since their removal "two years and eight months" prior to his evaluation. He 

noted "both girls appear to want their parents, from a physical and psychological 

perspective, more than their parents want them." Although he acknowledged 
13 A-1741-18T3

that "some harm" would befall the girls if they no longer had any contact with 

defendant, Dr. Brandwein opined "more harm w[ould] be done by these children 

waiting for . . . defendant to be the parent she need[ed] to be for these girls."

Notably, Dr. Brandwein said Meredith and Mary were the most resilient 

children he had ever evaluated. "They have persisted and maintained hope for 

the future even though they have moved from place-to-place, been subjugated 

to second place by their parents due to their parents' drug use, and dealt with 

serious medical issues." Both girls were "very intelligent." They "ha[d] ageappropriate interests, age-appropriate insight and judgment, and express[ed] 

themselves and their wishes quite skillfully." 

In her brief testimony, Meredith told the court she wanted to live with her 

parents, but she understood the gravity of their drug abuse prevented 

reunification. Meredith told the court she liked her resource family and felt 

"good" about the prospect of adoption.8 She expressed her preference to 

continue visitation and telephone contact with defendant, even if she were 

adopted. Meredith preferred the court "make that ultimate decision."

Mary was more vocal about the impact of defendant's noncompliance, and 

her desire for permanency. Mary told the court she would prefer to live in a 

8

 As noted, Meredith is no longer placed in an adoptive home. 
14 A-1741-18T3

foster or adoptive home, and continue her visits with defendant. She said 

visitations mostly went well, but she became "really upset" and "screamed" at 

defendant during a then recent visit because her mother "was dozing in and out." 

Mary thought defendant might have had taken "a pill."

Mary acknowledged she had desired to return home "two years" prior, but 

now that she was "older" she could "express [her]self more and tell the truth and 

not hide behind saying that, oh, my mom's not doing this, my mom's just tired." 

Although Mary preferred the court determine permanency, she knew her parents' 

rights would likely be terminated as a result of their noncompliance. Mary 

elaborated:

[I]t's heartbreaking because I thought that they would 

be the parents that they told me that they would be 

where they would do what they were supposed to be 

doing and not lie to me in my face, telling me that 

they've been going to all the therapy and they haven't 

used anything, when actually they both have. And you 

know, it's kind [sic] like hard because they said that 

they go to therapy and I find out all this and then they 

don't. It's like you lied to me and you've been lying to 

me for like two, three years, so maybe longer than that, 

so.

. . . . 

I know that I won't make the same mistakes as my 

parents will and I hope that they really do get their act 

together. I mean, . . . I do want to live in a home that I 

can actually . . . call home and that they won't lie 
15 A-1741-18T3

straight in my face, telling me things that it's [sic] not 

true. So I know that I really want a family that I can 

really call my mom and dad and not be like this is my 

mom but she uses stuff, this is my dad but he uses drugs. 

Like I don't want to say that. I want to say this is my 

mom and she does the right things, or this is my dad 

and he does the right things. 

Mary expressed fear of another removal if she were reunited with defendant and 

she started using drugs again.

The adoption supervisor explained select home adoption is a permanency 

goal available for children who are not placed in a resource home that is willing 

to adopt. As of September 2018, the Division had identified two Divisionlicensed adoptive homes in New Jersey that were willing to accept children with 

similar ages and medical and other needs as Meredith and Mary. If in-state 

placement efforts proved unsuccessful, the Division would then expand its 

search to include out-of-state adoptive homes following termination of parental 

rights when the children were considered "legally free." 

According to the adoption supervisor, Meredith did not have any special 

needs or diagnoses and performed "well in school . . . behaviorally and 

emotionally." Mary has some special needs, having been diagnosed with 

adjustment disorder, attention deficit/hyperactivity disorder, and Type I 

diabetes. But, Mary managed her diabetes independently and her medical 
16 A-1741-18T3

diagnosis would not be a barrier to locating an adoptive home. Acknowledging 

"[i]t's not easy" to find adoptive homes for teenagers, the adoption supervisor 

maintained it also was not impossible. She has had success finding adoptive 

homes for fourteen-year-old girls like Meredith, and twelve-year-old girls with 

special needs comparable to Mary's.

Following summations, the trial judge issued an oral decision and the 

judgment under review. These appeals followed. 

II.

The applicable law is well established. It is axiomatic that parents have a 

constitutionally protected right to the care, custody, and control of their children. 

N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). But that 

right is not absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 

553 (2014). "It is a right tempered by the State's parens patriae responsibility to 

protect children whose vulnerable lives or psychological well-being may have 

been harmed or may be seriously endangered by a neglectful or abusive parent." 

F.M., 211 N.J. at 447. At times, a parent's interest must yield to the State's 

obligation to protect children from harm. N.J. Div. of Youth & Family Servs. 

v. G.M., 198 N.J. 382, 397 (2009). Importantly, "[c]hildren must not languish 

indefinitely in foster care while a birth parent attempts to correct the conditions 
17 A-1741-18T3

that resulted in an out-of-home placement." N.J. Div. of Youth & Family Servs. 

v. S.F., 392 N.J. Super. 201, 209 (App. Div. 2007). 

To effectuate those concerns, the Legislature created a test for determining 

whether a parent's rights must be terminated in the child's best interests. 

N.J.S.A. 30:4C-15.1(a) requires that the Division prove the following four 

prongs by clear and convincing evidence: 

(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 [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. 

The four prongs are not independent of one another. N.J. Div. of Child 

Prot. & Permanency v. T.D., 454 N.J. Super. 353, 379 (App. Div. 2018). Rather, 
18 A-1741-18T3

they "are interrelated and overlapping" and "designed to identify and assess what 

may be necessary to promote and protect the best interests of the child." N.J. 

Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006). 

Parental fitness is the crucial issue. In re Guardianship of K.H.O., 161 N.J. 337, 

348 (1999). Determinations of parental fitness are fact sensitive and require 

specific evidence. Ibid. 

Our review of a judgment terminating parental rights is limited. R.G., 217 

N.J. at 552. "[T]he trial court's factual findings should be upheld when 

supported by adequate, substantial, and credible evidence." Ibid. This is 

because "the trial court . . . has the opportunity to make first-hand credibility 

judgments about the witnesses who appear on the stand" and because "it has a 

'feel of the case' that can never be realized by a review of the cold record." N.J. 

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

Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). "When the 

credibility of witnesses is an important factor, the trial court's conclusions must 

be given great weight and must be accepted by the appellate court unless clearly 

lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 

375 N.J. Super. 235, 259 (App. Div. 2005). 
19 A-1741-18T3

We recognize the "special expertise" of the Family Part "by virtue of its 

specific jurisdiction." R.G., 217 N.J. at 553. "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." E.P., 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. 

G.L., 191 N.J. 596, 605 (2007)). That said, "[a] trial court's interpretation of the 

law and the legal consequences that flow from established facts are not entitled 

to any special deference." Manalapan Realty, LP v. Twp. Comm. of Manalapan, 

140 N.J. 366, 378 (1995). 

III.

A.

At the outset, we reject the arguments advanced by defendant and 

Meredith's law guardian that we must vacate the judgment because the trial court 

failed to comply with Rule 1:7-4(a). Although the trial court's findings of fact 

and conclusions of law were anomalously terse, those shortcomings are not fatal 

to our meaningful review or to the underlying judgment. See N.J. Div. of Child 

Prot. & Permanency v. M.C., 456 N.J. Super. 568, 588 (App. Div. 2018). 

"In a non-jury civil action, the trial court shall make findings of fact and 

state its conclusions of law." N.J. Div. of Youth & Family Servs. v. M.C. III, 
20 A-1741-18T3

201 N.J. 328, 342 (2010). "[T]he trial court must state clearly its factual findings 

and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 

N.J. 563, 570 (1980). "Failure to make explicit findings and clear statements of 

reasoning 'constitutes a disservice to the litigants, the attorneys, and the 

appellate court.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting Curtis, 83 

N.J. at 569-70). Ordinarily, non-compliance with Rule1:7-4(a) would impede 

"meaningful appellate review." M.C., 456 N.J. Super. at 588. 

While the trial court's oral decision could have been more organized and 

detailed, it referenced the controlling legal standard, addressed the key facts in 

evidence, and adequately correlated those facts with its legal conclusions. The 

court also made credibility determinations about the unrefuted testimony of the 

Division's expert witness that warrant our deference. F.M., 375 N.J. Super. at 

259. Further, we agree with the Division and Mary's law guardian that there is 

ample evidence in the record to support each prong of the best interests test. See

F.M., 211 N.J. at 448. Accordingly, our review of the court's decision is not 

hampered. M.C., 456 N.J. Super. at 588.
21 A-1741-18T3

B.

Prongs I and II

We first consider defendant's argument that her positive drug test results 

were insufficient evidence to support the court's prong one conclusion, and "a 

delay in permanency is an insufficient basis for making a prong two 

determination." Similarly, Meredith contends the Division failed to prove she

was endangered by defendant or would continue to be harmed if returned to 

defendant's care. Meredith also claims defendant's "complex medical problems 

resulted in her inability to complete all the tasks required within the strictures 

of the law," and the Division "failed to present any data to support the contention 

that select home adoption would lead to permanency." We reject these 

contentions.

Relevant here, "[w]hen the condition or behavior of a parent causes a risk 

of harm, such as impermanence of the child's home and living conditions, and 

the parent is unwilling or incapable of obtaining appropriate treatment for that 

condition, the first subpart of the statute has been proven." N.J. Div. of Youth 

& Family Servs. v. H.R., 431 N.J. Super. 212, 223 (App. Div. 2013); see also

N.J. Div. of Youth & Family Servs. v. L.M., 430 N.J. Super. 428, 444 (App. 

Div. 2013) (holding that a parent's "continued drug use, lack of appropriate 
22 A-1741-18T3

housing, and failure to attend treatment, clearly posed a risk to the children" and 

satisfied prong one of the best interests test). 

The second prong "relates to parental unfitness," K.H.O., 161 N.J. at 352. 

"[T]he inquiry centers on whether the parent is able to remove the danger facing 

the child." F.M., 211 N.J. at 451. This prong is satisfied "by demonstrating that 

the parent has not cured the problems that led to the removal of the child." H.R., 

431 N.J. Super. at 224. "In other words, the issue becomes whether the parent 

can cease causing the child harm before any delay in permanent placement 

becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 

344 N.J. Super. 418, 434 (App. Div. 2001); see also N.J. Div. of Youth & Family 

Servs. v. P.P., 180 N.J. 494, 512 (2004) (holding that prong two was proven by 

clear and convincing evidence where the parents had "significant and longstanding substance abuse histories," repeatedly failed "to comply with DYFS 

recommendations and court orders for services," and "were not in a position to 

care for their children" at the time of trial). 

As is often the case, the trial court's findings regarding the first prong, 

here, informed and overlapped the second. See R.L., 388 N.J. Super. at 88. The 

court's prong one and prong two findings not only focused on defendant's

"severe and pervasive drug problems," but also her repeated positive drug tests 
23 A-1741-18T3

during the litigation, and her noncompliance with Division-offered drug 

treatment, including the failure to commence recommended inpatient treatment. 

To support its findings, the court cited Dr. Brandwein's unrefuted 

testimony – which it deemed "very, very credible" – that defendant was not 

capable of parenting. The court noted defendant failed to realize she had 

substance abuse problems and instead opted to blame others for the Division's 

involvement. Given defendant's history of noncompliance, the court determined 

"the likelihood that [she is] going to change and start doing something now at 

this particular point is just unrealistic for any court to expect." As detailed 

above, the record is replete with evidence supporting the court's decision. See

P.P., 180 N.J. at 512.

Moreover, Meredith's focus on the "actual harm" component of prong one 

is misplaced. It is well settled that the Division need not demonstrate actual 

harm to satisfy prong one. A.G., 344 N.J. Super. at 440; see also In re 

Guardianship of D.M.H., 161 N.J. 365, 383 (1999) ("Courts need not wait to act 

until a child is actually irreparably impaired by parental inattention or neglect."). 

As is the case here, the harm may be established by "a delay in establishing a 

stable and permanent home." D.M.H., 161 N.J. at 383. 
24 A-1741-18T3

Prong III

Turning to prong three, neither defendant nor Meredith argue the Division 

failed to address defendant's substance abuse problems, but they assert many of 

the "services" provided by the Division, "such as case[-]planning services, 

evaluation and visitation," were "simply" part of its "job." They claim the 

Division failed to assist defendant with managing her seizure disorder. 

Defendant also claims the court failed to address kinship legal guardianship 

[KLG] as an alternative to termination of parental rights. Their arguments are 

unavailing.

The third prong of the best interests test requires the Division to make 

diligent efforts to reunite the family. K.H.O., 161 N.J. at 354. Reasonable 

efforts vary with the circumstances. R.G., 217 N.J. at 557. Those efforts 

generally include consulting with the parents, developing a reunification plan, 

providing services to support the reunification effort, and facilitating visitation. 

M.M., 189 N.J. at 281. Parents must actively participate in the reunification 

plan through "genuine and successful efforts to overcome the cause of the 

removal." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 

(App. Div. 2009). "The diligence of [the Division's] efforts on behalf of a parent 

is not measured by their success." D.M.H., 161 N.J. at 393. 
25 A-1741-18T3

We recognize the trial court summarily stated its findings concerning the 

Division's reasonable efforts to provide services. Nonetheless, as detailed 

above, the record fully supports the multitude of services offered to defendant 

to address her substance abuse issue. Those efforts were sufficiently tailored to 

"provide services to help [defendant] correct the circumstances which led to the 

child[ren]'s placement outside the home." N.J.S.A. 30:4C-15.1(a)(3); M.M., 

189 N.J. at 285. Those circumstances pertained to defendant's substance abuse, 

not her seizures. Significantly, the record is devoid of any evidence that 

defendant requested assistance obtaining treatment for her seizures or that they 

interfered with her ability to parent. Indeed, defendant had medical insurance 

and was treating with various neurologists during the pendency of the litigation. 

Little need be said concerning defendant's argument that the trial court 

failed to consider KLG where, as here, the Division investigated defendant's 

preference that her friend become the girls' kinship legal guardian. The 

Division, however, ruled-out defendant's friend because he lacked housing and 

self-reported he was "not stable." As mentioned above, the Division also ruled 

out four maternal relatives. Accordingly, this is not a case in which the Division 

"ha[d] been lax or capricious in its assessment of . . . timely-presented 

alternative caretakers." N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. 
26 A-1741-18T3

Super. 69, 87 (App. Div. 2013). Because no one was available to serve as a 

kinship legal guardian for Meredith and Mary by the time of trial, we discern no 

error in the court's failure to consider KLG as an alternative to termination of 

parental rights. See E.P., 196 N.J. at 105 (quoting P.P., 180 N.J. at 508-09) 

("Although a court may appoint a kinship legal guardian when adoption of the 

child is neither 'feasible nor likely,' . . . at the end of the family court hearings, 

there was no person available to serve as a kinship legal guardian.").

Prong IV

Addressing the fourth prong, defendant contends the court overlooked the 

bond between her and the girls, their desire to return home, and the uncertainties 

inherent in the select home adoption process. Meredith asserts "it defies logic 

to argue that severing a teenager's only bond [with her mother] would not do 

more harm than good" given the child's desire for reunification. 

The fourth prong "is related to the first and second elements of the best 

interest standard, which also focus on parental harm to the children," D.M.H., 

161 N.J. at 384, and "serves as a fail-safe against termination even where the 

remaining standards have been met." E.P., 196 N.J. at 108. "[A] child's need 

for permanency is an extremely important consideration pursuant to this prong." 

R.G., 217 N.J. at 559. 
27 A-1741-18T3

Where, as here, termination of parental rights is predicated upon the 

parent's unfitness and not the child's strong bond with a resource family, the 

salient inquiry under prong four involves consideration of the children's need 

for permanency and the parent's ability – or inability – to provide the children 

with a safe and stable home "in the foreseeable future." N.J. Div. of Youth & 

Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996). But, "[a] 

court should hesitate to terminate parental rights in the absence of a permanent 

plan that will satisfy the child's needs." Ibid.; see also N.J. Div. of Youth & 

Family Services v. A.W., 103 N.J. 591, 611 (1986) (citation omitted) 

(acknowledging the "unfortunate truth that not all children, who are 'freed' from 

their legal relationship with their parents, find the stable and permanent situation 

that is desired even though this is the implicit promise made by the state when 

it seeks to terminate the parent-child relationship"). 

Moreover, in E.P., our Supreme Court reversed termination of a mother's 

parental rights to her twelve-year-old daughter that "was based in large part on 

the mother's addiction to drugs, psychological problems, and unstable lifestyle." 

196 N.J. at 92. The Court concluded the Division had not proven "by clear and 

convincing evidence that termination would not do more harm than good," even 

though it had met its burden under prongs one, two, and three. Id. at 110-11. 
28 A-1741-18T3

The Court noted the mother and daughter were bonded, and there was "no 

prospect of the daughter's adoption on the horizon." Id. at 92. Importantly, 

however, the mother in E.P. was "on a rehabilitative path--free of drugs for some 

time, gainfully employed, and with stable housing." Ibid. 

In support of its prong four conclusion, the court cited Dr. Brandwein's 

testimony – unrebutted on this record – that termination of parental rights would 

not do more harm than good, even in the face of select home adoption. The 

court acknowledged the girls were bonded to defendant, but accepted Dr. 

Brandwein's opinion that the bond was unhealthy. Given the girls' positive 

qualities and maintenance of their medical issues, the court concluded select 

home adoption was feasible. Dr. Brandwein's assessment concerning the girls' 

resilience supports the court's finding. The court also appropriately considered 

the children's wishes, although not dispositive, as expressed during the in 

camera interviews. E.P., 196 N.J. at 113 (explaining that when analyzing the 

fourth prong, it is appropriate for the court to consider "the wishes of a child 

over the age of ten, who has reached a level of maturity that allows the child to 

form and express an intelligent opinion" while remaining "mindful that 

children's wishes may often not be in their own best interests"). The court 

recognized Meredith desired to return home, but also noted both girls were 
29 A-1741-18T3

realistic and open to the plan of adoption if they could not be reunified with 

defendant. 

The record supports the court's implied conclusion that, due to her 

untreated substance abuse issues, defendant was either unwilling or unable to 

provide a safe and stable home for Meredith and Mary "in the foreseeable 

future," B.G.S., 291 N.J. Super. at 593, and could not provide the girls with the 

permanency to which they are entitled. Unlike the mother in E.P., 196 N.J. at 

92, defendant was not drug free at the time of the guardianship trial. As stated 

above, Dr. Brandwein supported select home adoption under the circumstances 

of this case, and the adoption supervisor discussed the efforts the Division would 

make to find adoptive homes for the girls as soon as they are "legally free." 

We acknowledge the evidence supporting the fourth prong presents a 

closer call than the other three prongs. But, we have also recognized "[a] child 

cannot be held prisoner of the rights of others, even those of . . . her parents. 

Children have their own rights, including the right to a permanent, safe and 

stable placement." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 

76, 111 (App. Div. 2004). While termination of defendant's parental rights does 

not guarantee Meredith and Mary will achieve permanency through select home 

adoption, a reversal in this case would surely relegate the children to a limbo 
30 A-1741-18T3

status antithetical to their right to a permanent home. Contrary to the arguments 

advanced by defendant and Meredith, neither the girls' bond with defendant –

including Meredith's desire to reunify with her – nor the uncertainties inherent 

in the select home adoption process, warrants reversal when viewed in context 

of the evidence in the trial record that supports termination. 

* * *

In sum, while we do not endorse the trial court's rambling discussion of 

the trial evidence, we are convinced by our own independent assessment of the 

record that its conclusions are "supported by substantial and credible evidence 

on the record" and thus entitled to our deference. F.M., 211 N.J. at 448 (citations 

omitted). 

To the extent we have not specifically addressed the remaining arguments 

advanced by defendant and Meredith, we conclude they lack sufficient merit to 

warrant discussion in our written opinion. R. 2:11-3(e)(1)(E).

Affirmed.