## RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 0934
- 16T1

A - 0935
- 16T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff

- Respondent,

v. N.C. and R.S. , Defendants
- Appellants.

____________________________________ IN THE MATTER OF THE GUARDIANSHIP OF Q.C. AND M.S., minors.

____________________________________

Submitted October 18, 2017

– Decided Before Judges Fuentes, Koblitz, and Suter. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG
- 16
- 0 068
- 15. Joseph E. Krakora, Public Defender, attorney for appellant N.C. (Jennifer M. Kurtz, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant R.S. ( Richard Sparaco, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz,

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court .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

December 5, 20172 A - 0934
- 16T1 Assistant Attorney General, of counsel; Melissa Medoway, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defend er , Law Guardian, attorney for minors Q.C. and M.S. (Margo E.K. Hirsch, Designated Counsel, on the brief).
PER CURIAM In these consolidated appeals, N.C. ( Nancy ) and R.S. ( Roger ) appeal the October 13, 2016 Family Part order terminating their parental rights to two children . We affirm substantially for the

reasons set forth in Judge Daniel J. Yablonsky's September 19,
2016 comprehensive and well

- reasoned written opinion . The evi dence is set forth in detail in the judge's opinion. A summary will suffice here.

N ancy and R oger are the parents of two children, Q.C. (Quenton) , born in 2008 , and M.S. (Mary) , born in 2010. 1 The most recent referral to the Division of Child Protect ion and Permanency (D C PP ) occurred on Ju ne 3, 201 3 , when N ancy awoke in bed with her then partner to find her tw o - month old infant , dead, laying between
them. She acknowledged going to sleep with the child on her chest

1 N ancy and R oger are the parents of other children with other partners, but Q uenton and M ary are the only children involved in this case.3 A - 0934
- 16T1

after smoking marijuana . R oger was not present or involved with the incident. Following an emergency removal, the children were placed
under the ca r e, supervision and custody of the DCPP. T he children were placed with a relative at first; but this person was n ot able
to care for the children long

- term. They then were placed with the maternal grandmother. Unfortunately, she allowed N ancy , who s e parenting time was to be supervised , and her brother J.C. , a convicted sex offender, to have unsupervised contact with the child ren . The children were removed in August 2013 , and placed with K.C. (Katie) , a maternal great aunt. They remained in he r care until February 2014 , when K atie , who was a military reservist , was deployed. The childre n were placed temporarily with a resour ce family we refer to here as the Cannons ; 2 but that placement was
extended when K atie was injured while on assignment. Q uenton comp lained to Ms. Cannon that K atie was abusive to
him. When K atie came to visit the children, Ms. Cannon saw K atie
hit M ary on the legs for discipline . Ms. Cannon reported this to
DCPP. After a n i nvestigation, DCPP determined that K atie was not

2 We use a fictitious name to maintain confidentiality.4 A - 0934
- 16T1

an appropriate caretaker. The children remained with the Cannon s, who have expressed an interest in adopting both children.

T he court initially rejected DCPP's plan for termination of

N ancy's and Roger's parental rights, and extend ed the time to effect reunification . When that was not successful, DCPP filed a complaint seeking termination of their parental rights to both childr en . Following a twelve
- day trial, Judge Yablonsky entered judgment on October 13, 2016 , terminating N ancy and R oger's parental rights to the children. Judge Yablonsky recited his factual findings and legal conclusions in a memorandum of opinion.
The c ourt found that DCPP had proven by clear and convincing evidence all four prongs codified in N.J.S.A. 30:40C
- 15.1(a), which, in the best interest s of the children, mandates termination of parental rights. In re Guardianship of K.H.O. , 161 N.J. 337 (1999). He found the testimony of DCPP's caseworkers to be "credibl[e] " and " consistent with the [DCPP] record in this case." With respect to N ancy , the court found DCPP provided services including "parenting classes, substance abuse treatment, ang er management classes, psychotherapy, a nd a psychiatric evaluation." She obtained drug treatment and was successfully discharged but relapsed within weeks. Although she maintain ed sobriety at the time of trial , based on expert testimony, she remained at risk to5 A - 0934
- 16T1

relapse because she did not "recognize her substance use as a potentially dangerous factor in her ability to care for her
children ." She received psychotherapy because of the death of her child. She had supervised visitation with the children , bu t at times she was "detached and elusive " toward them. Addressing R oger, the court found he did not attend any of the required counseling services. He was referred to "sex

- offender specific therapy" but did not attend. His visitation with the
children was "irregular " and he showed "[l]imited, if any, affection . . . at [those] visits." He was discharged from the visitation program for non
- attendance.
Th e court found that the children's safety, health or development was endangered by the parental re lationship with R oger based on his "pattern of abandoning his children, non

- engagement in [DCPP] recommended services, and continued absence in multiple visitation programs." The DCPP called Dr. Robert Miller , a psychologist, as an expert witness in parenting capacity and bonding . Dr. Miller opined that maintaining a relationship with Roger posed an " increasing and unnecessary risk of harm " to the children because he was unable or unwilling to remediate his parental deficit . Roger also was incarcera ted at the time of trial, serving a four
- year sentence for third

- degree sexual6 A - 0934
- 16T1

assault under N.J.S.A. 2C:14
- 2 (c) (4) . 3 As a convicted sex offender, Roger was required to comply with the registration provisions of N.J.S.A. 2C:7
- 2(b), commonly known as Megan 's Law , and was subject to Parole Supervision for life , N.J.S.A. 2C:43
- 6.4 . 4 With respect to N ancy , the judge found that her continued relationship would harm the children. Q uenton's teeth had decayed
under her care and the required tooth extractions affected his speech . The court found she remained "at risk for relapse " for continued drug use. The court noted that N ancy 's pattern of unstable relationships , involving domestic violence, exposed the children to harm . The court noted that two experts had opined
that N ancy was "not capable of safely parenting the minors no w or in the foreseeable future, indicating the health and safety of the children would be put at risk if they were placed back in her

care." The court found she had not overcome her parenting
deficits.

3 An actor is guilty of sexual assault under N.J.S.A. 2C:14
- 2(c)(4) where the victim is less than sixteen years old but older than thirteen, and the act or is at least four years older than the victim.

4 Roger was also adjudicated delinquent in the Family Part as a juvenile based on a sexual offense .7 A - 0934
- 16T1

The court found that DCPP made reasonable efforts to help the parents through the provision of services . DCPP also "explored

. . . multiple relative placements ." With respect to K atie, s he
was rule d out by DCPP "due to follow u p allegations a nd reports of abuse by the minors ." The court noted she had been i ndicted
on insurance fraud and was "facing significant jail time as well

as fines." Her home would not be licensable by DCPP.
The court found that termination of N ancy 's and R oger 's parental rights would not do more harm than good to the children
based on the experts' testimony concerning the bonding evaluations . Al l of the experts , including N ancy 's, tes tified that the children were securely attached to the Cannons. Th ere was testimony that the children were thriving with the m. Dr.
Maureen Santina , Ph.D, an expert in psychology and bonding, testified for the Law Guardian . She and Dr. Miller testified that the children would be harmed if they re turned to N ancy or R oger and that the resou rce parents were able to ameliorate any harm caused by termination of parental rights. Dr . Miller and Dr. Santina found the children's attachment to N ancy to be insecure

or ambivalent . There was no b onding evaluation conducted involving Roger and the children . Roger d oes not contest the fourth prong of the best interest s test on appeal.8 A - 0934
- 16T1

On appeal, N ancy does not dispute that DCPP provided services to her to assist in remediating the causes of removal . She does
not argue that the children should be in her care; rather , she claims that she was prejudiced when the children were removed from

K atie's ca re and placed with the Cannon s. R oger contends on appeal
that he was not offered appropriate services and that the evidence

was n ot sufficient to prove the first three prongs of the best interest s test. On appeal, our review of the judge's order terminating parental rights is limited. We defer to his expertise as a Family Part judge, Cesare v. Cesare , 154 N.J. 394, 412 (1998), and are bound by h is factual findings provided they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs.

v. M.M. , 189 N.J. 261, 279 (2007) (citing In re Guardianship of

J.T. , 269 N.J. Super. 172, 188 (App. Di v. 1993)). We conclude the factual findings of Judge Yablonsky are fully supported by the record and agree with the legal conclusions
drawn therefrom . He carefully considered the proofs, which show that neither parent is capable of providing stable and adequate
care for the children now or in the near future . B oth parents
were offered appropriate services but either did not utilize them or did not remediate the causes for removal of the children. We9 A - 0934
- 16T1

agree that termination of Nancy 's and Roger's parenta l rights to Quenton and Mary is in the children's best interests and will help
the children achieve permanency with their resource parents. We brief ly comment on their specific arguments . We reject

N ancy's conten tion that the trial court erred by not conducting a best interest hearing at some poi nt earlier than the guardianship trial on Katie's "rule out" as a placement option . In N.J. Div. of Youth and Family Servs. v. J.S. , 433 N.J. Super. 69, 7 5 (App. Div. 2013) , certif. denied , 217 N.J. 587 (2014) , we held that "the Division's rule

- out authority is always subject to the Family Part's ultimate assessment of that child's best interests."

Because "[t]he satisfaction of the rule

- out criteria in N.J.S.A.
30:4C
- 12.1 is, in essence, just one element of t he requirements imposed by N.J.S.A. 30:4C
- 15.1(a)'s f our - prong 'best interests'
test , " id. at 85 , there was no error by the court in considering
the issue as part of the guardianship trial.

In addition, we find no error in the court's consideration
of K atie's pending criminal charges , where she faced jail time if convicted . I n making a best interest s analysis, Judge Yablonsky appropriately took into consideration Katie’s predicament in determining the child ren 's prospects for permanency . N.J. Div.10 A - 0934
- 16T1

of Yo uth & Family Servs. v. L.M. , 43 0 N.J. Super. 428, 450 (App. Div. 2013).

N ancy indicate d that Q uenton's claim o f abuse was unsettled and lacked evidential support. We disagree. T he record is clear
that those allegations were made to multiple individual s , including doctors, th erapists and DCPP caseworkers. It was entirely appropriate for the court to consider those allegations.

We also disagree with R oger's contention that the court erred
because he was not offered services appropriate for his level of cognitive ab ilities . A DCPP representative testified that the
program to which he was referred would "get to know [their clients] and know at what level to service them." In any event, Roger did
not participate in the services offered . Finally, w e rej ect Roger's contention that the court terminated his parental rights because he was incarcerated. See N.J. Div. of Youth & Family Servs. v. R.G. , 217 N.J. 527, 556 (2014) (holding that "incarceration alone

— without particularized evidence of how a parent's incarceration affects each prong of the
best
- interests

- of the
- child

- standard

— - is an insufficient basis for terminating parental rights."). A f a ir reading of the judge's opinion shows that the decision to terminate Roger's parental11 A - 0934
- 16T1

rights was firmly based on findings well beyond the fact of Roger's incarceration.
Affirmed.