### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO S . A

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NEW JERSEY DIVISION O F CHILD PROTECTION AND PERMANENCY, Plaintiff

- Respo ndent,

v. C.J.R. , Defendant

- Appellant / Cross

- Respondent , and C.R.A., Defendant

- Appellant.

_____________________________ __ IN THE MATTER OF THE GUARDIANSHIP OF A.A.R. and C.L.A. , Minors, Respondents /Cross

- Appellants, and NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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C.A., Minor.

_____________________________ __

Argued September 18, 2019

– Decided Before Judges Whipple, Gooden Brown and Mawla. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG

- 07

- 0117

- 16. Adrienne Marie Kalosieh , Assistant Deputy Public Defender, argued the cause for appellant /cross

respondent (Joseph E. Krakora, Public Defender, attorney; Robyn A. Veasey, Deputy Public Defender, of counsel; Adrienne Marie Kalosieh, on the briefs). Eric R. Foley, Designated C ounsel , argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Robyn A. Veasey, Deputy Public Defender, of counsel; Eric R. Foley, on the brief s ). Melissa R. Vance, Assistant Deputy Public Defender , argued the cause for r e spondents /cross

- appellants (Joseph E. Krakora, Public Defender, Law Guardian , attorney; Melissa R. Vance, on the brief). Christian A rthur Arnold , Assistant Attorney General, argued the cause fo r respondent (Gurbir S. Grewal, Attorney General, attorney; Jason Wade Rockwell, Assistant Attorney General, of counsel; Christian A rthur Arnold, on the brief). October 22, 20193 A

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PER CURIAM
In these consolidated appeals , following a remand to the Family Part , defendant s C.J.R. ( Cindy ) and C.R.A, ( Charles ) both appeal from the judgment terminating their parental rights to their children A.A.R. (Anne), C.L.A. (Claire), and C.A. (Chip)

. 1 Anne and Claire cross

- appeal the entry of guardianship as to them

. The issue on appeal is whether the Division of Child Protection and Permanency (Division) proved by clear and convincing eviden ce that parental rights should be terminated pursuant to N.J.S.A. 30:4C

- 15.1 (a).
We reverse. The facts in the record of the original trial are also recounted fully in our previous decision, N.J. Div. of Child Protection & Permanency v. C.J.R. , 452
N.J. Su per. 454, 458, 463

- 64 (App. Div. 2017), therefore, we repeat only those necessary to address the issues raised here. The Division's involvement with the family began in February 2014 , after defendants brought six

- week

- old Chip to the emergency room for m edical

1 For simplicity, we refer to the parties by the same pseudonyms as used in the prior Appellate Division decision.4 A

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treatment

. Chip had suffered four rib fractures as well as head trauma, including brain contusions and subdural hematomas, injuries a consulting physician concluded were consistent with physical abuse , but ones for which defendants, the child's only caregivers, offered no explanation. Id. at 458

- 59. All three children were removed from defendants' care but were returned to their custody that October. Ibid. In November 2014 , Chip was rushed to the hos pital after having a seizure. Id. at 459. Tests revealed subdural hematomas , not attributable to his prior condition , and "extensive multi

- layered retinal hemorrhages." Id. at 459

- 60. Although Cindy reported that Chip fe ll from a sitting position on th e floor and hit his head a few weeks earlier, an emergency room physician opined the injuries were likely sustained just a few days prior and, absent any explanation, were indicative of physical abuse. Ibid. All three children were again removed from def endants' care. Id. at 460. After a hearing, the Family Part judge found, by the heightened standard of clear and convincing evidence and relying on a burden

- shifting paradigm permissible under Title N ine , that both defendants abused and neglected Chip.
I d. at 461

- 62. In light of that heightened standard, the judge gave the abuse and neglect finding preclusive effect at the subsequent termination proceeding,5 A

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concluding that the Division thereby met its burden as to the first prong of the applicable best i nterest standard. Id. at 464, 467. Ultimately , the judge found the Division also satisfied its burden as to the balance of the standard and therefore, the defendant's parental rights should be terminated as to all three children. Id. at 467. We reversed , concluding that a finding made using the burden

- shifting paradigm authorized only under Title N ine could not be given preclusive effect in a Title T hirty guardianship proceeding, and remanded the matter for a new trial to be completed within sixty days. Id. at 470

- 75. We also noted the court made findings as to Chip on all except the first prong of the standard, but "made no specific findings under prongs one or two regarding Claire and Anne." Id. at 474. We explained:

While N.J.S.A. 9:6

– 8.46(a)(1) provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of .

. . the parent," this does not mean that harm to one child is conclusive proof of harm to another child. The Title Nine findings made by the judge were confined to consideration of whether Chip was abused; there were no explicit findings that either Anne or Claire were abused or neglected. Moreover, the Division caseworker conceded neither was harmed, meaning that any harm attributed to have been visited upon either girl was derived from the harm to Chip. Therefore, the determination of the judge terminati ng Charles and Cindy's parental rights to Claire and Anne6 A

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- 75

. ] However, we continued that, "we believe that going forward from here, the trial court should be allowed to consider each prong in the light of any developments since trial, and shall have the discretion to permit any updated evaluations or discovery that may be warranted." Id. at 47 5. We then directed that a new trial be conducted on remand within sixty days with no indication that the trial must be limited to Chip. Ibid.
On remand, the Family Part judge , at a permanency hearing on March 23, 2018, found by a preponderance of th e evidence that it was not safe to return the children to defendants due to the significant injuries Chip suffered in 2014

. The Family Part judge approved the Division's plan to retry the matter as to all three children , 2 but did not meet our sixty

- day de adline. Rather, t he court sought an extension last ing until May 11, 2018 , because the previous trial judge was out of state. The trial judge further requested a second extension from this court , which we granted. The case was finally retried six months after the remand

2 The record does not include a new permanency order.7 A

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order. In the remand proceedings, Chip was represented by one l aw g uardian and his sisters by another. A five

- day trial took place via audio video conferencing before the same judge who presided over the first trial , who was no longer sitting in Essex County

. The record is silent as to why the trial was conducted by a judge who both viewed and listened to testimony remotely from chambers in another county. He heard testimony from the following w itnesses : Dr. Monica Weiner, the medical do ctor who testified about Chip's injuries in the first trial ; Latoya Bowers, the Division caseworker ; Dr. Carolina Mendez, the Division's expert; Dr. Andrew Brown, Cindy's expert; Dr. Elizabeth Smith, a forensic psychology and bonding expert who evalua ted defendants' bonds with Chip; and Dr. Eric Kirschner, who conducted bonding evaluations as to the girls. Regarding the injurie s from February 2014, Dr. Weiner again testified that
C hip had suffered acute posterior rib fractures consistent with squeezing the child's torso or applying force in some other manner, such as shaking, and that Chip's birth three weeks prior could not cause these fractures

. Dr. Weiner further opined that a s eizure could not cause the subdural and retinal hemorrhages from which Chip was suffering when admitted to the hospital in November 2014. Consistent with her prior testimony, she concluded that the8 A

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injuries were caused by trauma , but could not rule out ac cidental trauma, noting that no accidental trauma was reported that would have generated enough force to cause the injuries given Chip's age and limited mobility. Latoya Bowers , the Division caseworker , testified that following each removal, Anne and Clai re, were placed in one resource home and Chip, in another. The Division provided the parents with weekly visitation and arranged bonding and psychological evaluations. It also considered Charles' sister and Cindy's mother as potential relative placements for the children, but Charles' sister did not have space to accommodate the children and Cindy's mother was
under investigation in a placement matter related to Cindy's niece s . Bowers testified that s ince the second removal, Cindy completed two rounds of therapy and parenting skills instructions. Cindy successfully completed services in 2015 , and the Division did not ask her to undergo additional service s geared toward reunification. Howeve r, t he Division worker did not go out to see the apartment Cindy rented in anticipation of reunification , conceding that there was no excuse for not having done so. Defendants' visits with the children initially took place at a Division

approved program, but f ollowing the first trial, visits took place with the resource parents, sometimes lasting up to six hours. The girls' resource parents9 A

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notified defendants when the girls had softball games, which defendants attended. Bowers noted that, during visits, Anne and Claire were happy and excited to see their mother. Although the girls were doing well in resource placement, Anne was having trouble at s chool, and told her teacher she did not have to do school work or listen anymore because she was going home with her mother. On several occasions , Chip's resource parents reported Cindy seem ed

" cold " during visit s , simply handing Chip her cell phone to pl ay game s while she sat back. They had fewer concerns with Charles, who was more attentive to Chip.
Defendants separated in 2015 and both agreed that all three children should live with Cindy alone, Bowers stated. However, both sets of resource parents were committed to adopting the children fo r whom they provid ed care . Bowers observed no concerns in either resource placement during her monthly visits.
Four experts conducted updated bondin g and psychological evaluations,
and testified as to their res ults . The Division's expert, Dr. Carolina Mendez, and Cindy's expert, Dr. Andrew Brown, each evaluated defendants' bonds with Chip and with the girls. Dr. Elizabeth Smith, an expert in forensic psychology and bonding, conducted bonding evaluations that related to Chip only, while Dr. Eric10 A

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Kirschner conducted bonding evaluations specific to the girls. All four experts concluded the results of the updated bonding evaluations were positive, as the
children established bonds with both their biological paren ts and with their resource parents. Kirschner and Brown both recommended reunification of the girls with Cindy. Brown also recommended returning Chip to Cindy's care, whereas Mendez and Smith recommended terminating defendants' parental rights to all of the children based solely on the parents ' inability to explain what or who caused Chip's injuries

. All of the experts who conducted updated bonding evaluation s of Cindy 's relationship with Anne and Claire, who at the time were seven and six years old respectively, concluded the girls were highly attached to their mother in a strong, positive bond. Kirschner and Brown both testified that Cindy was Anne's and Claire's primary attachment figure, and Mendez similarly testified that the girls "had no reser vations about their preference" to live with their mother. Brown testified that severing the girls' relationship to Cindy would likely have "psychologically devastating" consequences for both girls and "would induce a significant harm

. . . and trauma tha t could never be mit igated" by the resource parent s . Kirschner similarly testified that termination of parental rights could11 A

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cause the girls to suffer "serious and enduring harm ." Mendez opined the girls had an "equal bond with their mother and their res ource mother , " but agreed there was "no doubt that if parental rights were terminated, the girls would suffer

. . . severe and enduring psychological harm ." Nonetheless , Mendez believed the resource p arents could mitigate that harm

. In an interview Brown conducted with Anne alone, Anne stated that she wished "all the tim e" she could be with her mother . She cried for her mother and said she would be "very up set" if she never saw her again . Brown opined Anne had a deep emotional attachment to Cindy and tha t severing the relationship "would serve no purpose but to induce harm in this child. " Claire also told Brown, in a private interview, that she missed her mother, dreamt about her, and would be sad if she never saw her again

. 3 Brown opined that
terminati ng Cindy's parental rights could lead Claire to suffer "severe emotional trauma" that could lead to "truncated psychological development ." Both Anne and Claire stated they wanted to live with their brother as well. Brown opined
that , even with the aid of psychotherapy , t he resource parent s would be
in capable of mitigating any h arm to the girls resulting from the severa nce of their relationship with their mother.

3 None of the children testified.12 A

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In regard to Chip, Brown opined that Chip also had a healthy, positive attachment with Cindy and to his big sisters, who appea red to operate as a family
unit . Cindy was more capable, in Brown's view, than the resource parents of keeping up with Chip, an active child who was full of energy. The resource parents, who were in their sixties, struggled to keep up with and play with Chi p during the bonding evaluation . As with the girls, Brown believed that terminating Cindy's parental rights to Chip would destroy his healthy, positive
attac hment to h er and to his sisters

. Brown opined that a s Chip grows and develops, he would wonder about his mother and sisters if not reunited with
them , and "in the long run," severing those attachments would result in greater harm. Severing Chip's relationship with his resource parents would not cause severe and enduring harm, in Brown's view, because he already developed a positive and healthy attachment t o Cindy and to his sisters. Mendez and Smith both testified that in their opinions , Ch ip's primary attachment was his resource mother . Smith conceded , however, that Chip was also positively bonded with Cindy and Charles and would miss them if not able
to see them anymore. Smith noted Chip called both defendants and the resource parents "m ommy" and "daddy."13 A

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In Smith's view , c ompelling factors for a child of Chip 's a ge ( four years old ) were his age at the time of placement and the length of time in place ment. At the time , Chip was in placement nearly his entire life, with the except ion of the first two weeks of his life and the six weeks he was briefly reunified with defendants prior to the second removal. Mendez was similarly concerned with depriving the children of permanency further , as permanency is important to a child's health and development . Accordingly, Mendez concluded that termination of defendants' parental rights was in the best interests of all three children, because " [ t ] he most importan t relationships that need to be maintained" were the children's relationships with th eir respective resource parents

. As to ending the relationship the girls had with their resource parents, Mendez, Kirschner, and Brown all agreed it would have a harmful effect on the girls

. Nonetheless , Kirschner and Brown agreed Cindy was capable of mitigating th ose harmful effects. 4 Brown noted that Cindy was aware the children could not simply be removed immediately from resource placement, but would start with over night and weekend visitation and expand from there.

4 Mendez did not directly address in her testimony whether she believed defendants were capable of mitigating the harm to the girls from severing their relationship t o their resource caretaker.14 A

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Kir s chner recommended family counseling for Cindy and the girls if reunification occurred

. He believed the strength of the maternal relationship could potentially mitigate any anxiety to the girls stemming from the loss of the relationship with the resource parents. He further noted that Cindy was open, if reunification occurred, to allowing the children to maintain a relationship with their respective resource parents. Kirschner and Mendez both a greed the bond between Charles and the girls was generally positive and appropriate. However, Kirschner concluded it was not realistic or feasible to return the children to Charles' care , both based on his psychological assessment , and because Charles did not portray himself as able to assume care of the children.
No ne of the expert witness es expressed any concerns about the result s of Cindy's updated psychological evaluations. Mendez testified Cindy "made significant achievements" since the first trial, in that she had stable housing and steady employm ent. Sh e noted Cindy participated in counseling from which she learned "how to bette r handle her negative emotions." Cindy also stated to Mendez that if reunified with her children sh e would require all of Charles' visits to be supervised, which showed Mendez that Cindy recognized there was a concern with Charles.15 A

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S imilarly , Smith viewed Cindy as "a very intelligent, very sincere
person [ , ] " who "works hard" and was "pursuing more education to

. . . better support her children." The sticking point for both Mendez and Smith was their perception of Cindy 's respon se to Chip's injuries. Mendez worried that Cindy "used the language of acceptance and moving on," even though she did not know how the injuries occ urred . In Mendez's view, "[a]ny reasonably well

- adjusted parent would want to know what happened to their son, would want to figure it out," and "would not

. . . stop asking ques tions until she figured it out

. " Smith was similarly troubled that neither p arent seemed concerned about di scovering what happened to Chip

. Kirschner found no evidence of any significant psychological dysfunction or impairment that would affect Cindy's parenting. He believed she c a me to "a psychologically healthier place " since his prior testimony at the first trial

— when she had only recently separated from Charles and had not yet demonstrate d she could be self

- sufficient . Cindy had since benefited from therapy, according to Kirschner, which allowed her to focus on trying to be present for her children in the best way possible, a psychologically healthier perspective than focusing on things she could not control. Although Cindy was unable to offer an opinion as16 A

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to how Chip's injuries had occurred, she show ed an ability to cope w ith what happened in a health ier way through therapeutic treatment

. Like Kirschner, Brown concluded Cindy was "capable of providing stability and a safe environment for her children ." Cindy lived on her own in a
two

- bedroom apartment since February 2018, work ed as a mortgage processor, and complied with all recommended services. Brown was not concerned, as Mendez was , that Cindy psychologically "move[d] on" from inquiring further about her son's injuries, because, according to Brown, that is the go al and mission of psychotherapy

. Brown's impression was that Cindy's only contact with Charles, as of trial, was during visitation . Brown opined Cindy was committed to her children, wanted to remain i n their lives, and demonstrated the stability to be able to raise
the children in her home . Brown also agreed that Cindy knew the children could not simply be removed immediately from resource placement, and supported gradual reunification

. Cindy also testified. She stated she met Charles when she was seventeen and recounted the history of their relationship , noting f rom early on, Charles had a drinking habit which often led to verbally aggressive behavior . Charles never hit Cindy, but he would hit fu rnit ure at times, and scream loudly . Charles began17 A

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drinking less during Cindy's first pregnancy, when she was nineteen, and shortly thereafter he gave up drinking altogether, whic h led Cindy to believe Charles' behavior would improve

. Cindy asserted that e ven after he stopped drinking, however, Charles continued to aggressively argue with Cindy. Cindy recounted how Charles never participated equally in parenting, but would instead come home from work tired and want to eat and sleep rather than be i nvolved with the children as a father. After Chip was born, Charles became increasingly annoyed with Cindy's preoccupation i n caring for both the ir chi ldren as well as Cindy's two young nieces , w ho lived with them at the time

. Prior to Chip's birth, and u p until his removal, Cindy's nieces, about eight and seven years old, were placed in defendants' home on a temporary basis. While in defendants' custody, the older niece, who i s schizophrenic, engaged in troubling behaviors s uch as cutting up family pictu res and hiding food in drawers. The niece also once reportedly opened a car door on the Garden State Parkway and attempted to jump out. Both nieces had a tendency to play rough with Anne and Claire

. Cindy further testified that o n one occasion, when she was eight months pregnant with Chip, she became frustrated during an argument with the older niece and slapped her, causing the child to fall and injure her chin on the railing18 A

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of her bed. Although the niece was not badly hurt, the chin injury left a mark and led to a Division referral . A Division caseworker advised Cindy against using corporal punishment, but did not substa ntiate abuse . Cindy testified that she felt terrible about the slap and did not apply corporal punishment to any child thereafter

. Af ter Chip's birth, i n January 2014, Cindy testified that she made it a habit to be in the room when her nieces wanted to touch the baby, and she never saw them behave rou ghly around Chip . Fol lowing the first removal, Cindy testified that she initially su spected that her nie ces might have hurt Chip . She testified
in the first and second trials she had doubts and concerns about whether Charles
may have caused the injuries . She reported confront ing him numerous times, to which Charles would respond by beco ming irate and defensive, screaming that "he didn't do it," that he loved Chip, and that he waited his whole life to have a

son . When Chip returned to the family for six weeks in fall of 2014, Cindy's
nieces no longer liv ed there

. Before the second rem oval, Cindy recalled Chip appeared sick, weak, and not able to keep food down. Cindy took him to the
emergency room where the child was diagnosed with eye and ear infections and was prescribed antibiotics

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By his second day on antibiotics, on November 1 8, 2014, Cindy stated that Chip's mobility improved and he could move around more

. At one point, Cindy testified she put Chip down in his playpen for a nap and told Charles to watch him while she went upstairs to bathe their daughters . About three or four minutes after going upstairs, Cindy heard Chip "scream very loudly , " and that
"i t was not a normal cry like if he just woke up from a nap

. " Cindy asserted that

a s she entered the room, she observed Chip having a seizure as Charles w as trying to lift him out of the playpen. This was the first time Cindy s aw Chip have a seizure, a condition she recognized because it run s in her family. Cindy
stated that she screamed at Charles, asking him what happened, and Charl es replied that he di d not know . Cindy called an ambulance and went t o the hospital with Chip . At the hospital, medical testing revealed Chip's subdural hematomas and retinal hemorrhages that led to the second removal. See C.J.R. , 453 N.J. Super. at 459

- 60. Cindy testifie d she was immediately suspicious of Charles after the second injury, both because she never hurt Chip and because she perceived Charles to be "very cold about everything, " while Cindy described herself as "frea king out" and panicking . Cindy confronted Charles again about Chip's injuries , and Charles continued to be defensive and irate

. Cindy stated he would get angry20 A

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and walk away when she brought up the conversation and tell her she "should know bet ter that it wasn't him

. " Despite this, Cindy did not tell the Division she was suspicious of Charles, but offered to take a lie detector test to pro ve her innocence . Cindy did not believe her daughters could have injured Chip, because the injuries sustained were inconsistent with those that would result from being picked up by a five or six

- year old

. Cindy noted that her second rou nd of therapy, which took place after the second removal of her children, helped her interpret and cope with her feelings

. She also stated it helped her acknowledge that even though she "may never have an answer to what exactly happened" with respect to Chip's injuries, she "still needed to move on in order to have a healthy life" for herself and her children

. Cindy testified she had a great relationship and close bond with all three children , that she never hurt them, and that she would not do so in the future

. To discipline them, Cindy asserted she would do brief time

- outs or, for the older
childr en, take away their toys . S he testified she never used drugs and r arel y drinks alcohol

. Cindy testified she would have no difficul tly reuniting with the children

. Chip would have his own room in Cindy's two

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would share the other bedroom , and Cindy woul d sleep in the living room . As of trial , however , the Division had not conducted a safety assessment of Cindy's
home . Cindy further testified that she would work while the children were at school and would enroll the chil dren in after

- school activities

. She testified s he would never again have a relations hip with Charles, but i f the children were reunified with her, she would allow Charles only weekly supervised visits. Cindy acknowledged i f the children were removed from their resource homes, they would be upset at first . However , she intended for the resource parents to always have a place in the children's lives , as t he children "see us like one big happy family ." For example, Chip call s his resource parents "mama," and "papa," terms that a child, in Puerto Rican culture, would use for his grandmother and grandfather, respectively , she noted . She stated it was good for the children to have "another person who loves them" and did not see any benefit in taking that away. She would rather the children just have three sets of grandparents

. As part of a gradual reunification process, Cindy anticipated allowing the children sleepovers at the resource parents' homes periodically or on weeken ds and having the group still celebrate events and holidays together. Cindy was willing to engage in family therapy or other services to help the children wit h22 A

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the transition . Conversely, if her parental rights were terminated, Cindy did not believe she would be able to see her c hildren as often , because a t times, her calls to the resource parents went unanswered

. On the last day of trial, immediately after closing arguments, t he court rendered an oral decision that all four prongs of the "best interest" test were met. The court entered an order of guardianship as to all three children on July 10,
2018. On July 27, 2018, defendants filed appeals. The appeals were consolidated. On August 10, 2018, the Law Guardian for Anne and Claire joined the appeal. Our review of a trial judge's findings and decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. M.M. , 189 N.J. 261,
278

- 79 (2007) (citation omitted) . We do not reverse the family court's termination decision "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P. , 196 N.J. 88, 104 (2008) (citation omitted)

. We defer to the trial court's credibility findings and fact

- findings because of it s expertise in family matters and its ability to develop a "feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth23 A

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& Family Servs. v. M.C. III , 201 N.J. 328, 342

- 43 (2010) (citation omitted). This court should not disturb these findings unless they are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v.
G.L. , 191 N.J. 596, 605 (2007) (citations omitted)

. Parents have a constitutionally protected right to raise their bio logical children, even if the children are placed in the care of a resource family. In re Guardianship of J.C. , 129 N.J. 1, 9

- 10 (1992) (citing Santosky v. Kramer , 455
U.S. 745 (1982)). The State may act to protect the welfare of the children, but this i s a limited authority, applying to circumstances where the parent is unfit or the child has been harmed or placed at risk of harm. Id. at 10; N.J.S.A. 30:4C

12; see N.J. Div. of Youth & Family Servs. v. I.S. , 214 N.J. 8, 34

- 35 (2013 )

. To prevail in a pro ceeding to terminate parental rights, the Division must establish each element of the "best interests test":

(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 resour ce family parents would cause serious and enduring emotional or psychological harm to the child;24 A

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- 15.1(a).] These four prongs "relate to and overlap with one another to provide a compreh ensive standard that identifies a child's best interests." In re Guardianship of K.H.O. , 161 N.J. 337 , 348 (1999). The State must prove each prong of this test by clear and convincing evidence. N.J. Div. of Youth & Family
Svcs. v. R.G. , 217 N.J. 527, 559 (2014) . Additionally, courts may not use presumptions of parental unfitness and any "doubts must be resolved against termination of parental rights." K.H.O. , 161 N.J. at 347. On appeal, C indy argues the judge erred in terminating her parental rights because the Division did not establish she was responsible for the harm to her children under prongs one and two of N.J.S.A. 30:4C

- 15.1 ( a )

. She also argues the Division offered no evidence as to Anne and Claire beyond what was presented in the first trial , which resulted in a reversal. Finally, Cindy argues the expert evidence was in equipoise, at best, as to prong four , and the refore the Division did not meet the standard of clear and convincing evidence.25 A

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Charles argues he, as well as Cindy , were deprive d of a fair trial because the judge was not physically present in the courtroom but conducted the entire trial remotely through an audio video feed. 5 Charles also argues the judge misapplied the law and ignored the directive of this court by relying upon the shifted burden of proof. He also raises the arguments raised by Cindy. It is significant that Charles is not asking to be reunified with his children but asks they be returned to their mother. Anne and Claire argue the Division again failed to show t he parents harmed them or would continue to harm them and that they wished to be reunited with their mother. Having reviewed the tria l record in its entirety we are constrained to conclude there is not "substantial credible evidence in the record to support the court's findings." E.P. , 196 N.J. at 104

. We previously instructed the Family
Part that its decision to give preclusive effect to the Title Nine fact

- finding in the Title Thirty proceedings, which shifted the burden to defendants and requir ed them to rebut the presumption of abuse and neglect through their own evidence , created an unconstitutional asymmetry we consider to be plain error

5 The record does not identify whether this was done via Skype or some other audio video feed.26 A

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on a critical qu es tion of law warranting reversal

. T he record herein demonstrates the essential error was repeated by the trial court. As to Chip , the court considered prongs one and two together. The court noted that unrefuted testimony established that Chip's two life

- threatening injuries "were caused by physical abuse by one of the parents

. " T he court then asked, rhetorically, "what type of monster or person could inflict these types of injuries on a bab y and a small child?" The court added this was a question "the parents should have been asking," and that defendants were the only two people in the courtroom who knew what happened to Chip since one parent caused the injuries and the other knew who was r esponsible. The court said :

I have no way of knowing sitting here who actually committed this horrific abuse . . . [but] one of the two people sitting in this courtroom is an abuser and capable of doing tremendous harm to a child, and the other one was an enabler and excuser and stuck her head in the sand

. The court found that there was harm u nder prongs one and two

— both "harm from the abuse, " and "harm from protecting it ." The court noted that Smith and Mendez testified there existed "a substantial c lear and present danger and substantial risk of harm" to the children that defendants had not alleviated. The harm involved both the abuse and the subsequent removal. Notwithstanding the positive bonding reports of the27 A

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Division's own expert, the court di sbelieved the "false picture" of a "happy family" the court believed defendants were presenting and stated that reunification, "which the parents have apparently instilled in their children with these visitations, is a myth." Cindy's testimony that she h ad suspicions about Charles seemed, in the court's view, to be "measured, rehearsed," and "designed to pr esent herself in the best light." The court was also concerned that Cindy had continued to live with Charles for ten months after the second removal a nd further believed Cindy was "sweeping the dirt under the rug" by "moving ahead with this case ." The judge offered no assessment of the fact the parties had not lived together for over three years. The judge did not appear to consider the evidence prese nted by the Division and its experts regarding Cindy's progress as well as her separation from Charles , and did not address her current situation. The court rejected Brown's testimony that the mission of psychoth erapy was to "move on," noting: "I can't be lieve any psychologist should take the stand and say those type of things and believe that the child is now safe because they ' ve gone past it ." The court was skeptical that, through therapy, Cindy had achieved "great psychological insight and . . . great benefit ," notwithstanding that all of the experts testified she had made progress.28 A

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With respect to the girls, the court found that they also suffered harm under prongs one and two from twice being removed from their home and that
defendants had still "not dealt with this clear and present danger that exists in this case

. " The court noted it did not know how Cindy would be able to monitor Charles on visits if she was reunified with the children. Defendants had "not come forward to deal with whatever h appened four years ago" and remained "in the same position" as then. With respect to prong three, the court held that the Division made reasonable efforts and that the court did not know "if there is a service that will change these people or change thes e parents to have them recognize where they are or where they should be," but that, in any event, the Division provided visitation, assessed relatives, and provided psychological counseling and evaluations. With respect to prong four, as to Chip, the cou rt found it clear that terminating Chip's relationship to his foster parents would cause more harm than
t erminating Cindy's and Charles' parental rights. The court opined without support from the record that Chip, an infant when removed, had no memory of living with defendants or his sisters and had bonded well with his resource parents with whom he had lived for most of his life.29 A

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As to the girls, the court noted that their resource parents had also developed good relationships with them and met their nee ds for four years. The girls, despite living apart from their parents that whole time , had thrived. The court noted that the resource parents had shown "every inclination to keep a relationship with the natural parents" voluntarily, without any court ord er, and questioned why they would stop doing so if defendants' parental rights were terminated. The court noted that "with appropriate counseling," the termination of defendants' parental rights to the girls would "not do more harm than good" and that "re turning them to their parents would do extensive harm ." Given the opinions presented at trial by all of the experts, we consider these finding s about the girls "wide of the mark." In addition, t he trial judge 's finding with regard to the first and seco nd
prong s , that he could not determine from "sitting here who actually committed this horrific abuse . . . [but] one of the two people sitting in this courtroom is an abuser and capable of doing tremendous harm to a child, and the other one was
an enabler and excuser and stuck her head in the sand , " was indeterminate

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

- 15.1(a), the Division must prove by clear and convincing evidence termination is in the best interest of the child

. New Jersey Div. of Youth & Family Servs. v. F.M

. , 211 N.J. 420, 447 (2012) (citing New30 A

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Jersey Div. of Youth & Family Servs. v. R.D. , 207 N.J. 88, 113 (2011)). Our Supreme Court has determined the clear and convincing evidence standard is satisfied when, in the mind of the factfinder, there is a "firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitancy, of the precise facts in issue." New Jersey Div. of Youth & Family Servs. v. I.S. , 202 N.J. 145, 168 (2010) (quoting In re Seaman , 133 N.J. 67, 74 (1993) ( citation, internal quotation and editing marks omitted)). "Because of the elemental nature of the parent

- chil d relationship, and recognizing that the severing of that relationship is among the most 'severe and . . . irreversible' forms of state action," E .P. , 196 N.J. at 102 (quoting Santosky , 455 U.S. at 759 ), courts "consistently impose[] strict standards for the termination of parental rights" and "all doubts must be resolved against termination of parental rights." K.H.O. , 161 N.J. at 347 (citations omitted). The issue under the statute is "the 'best interests of any child,' not simply the presence or absence of culpable fault on the parent's part." In re Guardianship of R. , 155 N.J. Super. 186, 195 (App. Div. 1977) (quo ting N.J.S.A. 30:4C

- 15(c))

. The clear and convincing standard of proof requires that the result shall not be reached by a mere balancing of doubts or probabilities, but rather by31 A

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rigorous evidence which convinc es the fact finder that the allegations sought to be proved are true. The issue of how Chip sustained his injuries is critical to all four factors. We reject the Division's assertion that it established by cl ear and convincing evidence the children's health and development will continue to be harmed by a parental relationship with Cindy

. The record demonstrates C indy and Charles both present differently from the parents they were when the litigation began and present differently as individ uals now. They are no longer together as a couple

. Charles is not asking for the children to be reunited with him. Cindy successfully completed services in 2015 , and since then , the Division has not ask ed her to undergo additional services geared toward reunification. The Division worker conceded they did not inspect the apartment Cindy rented for herself and the children. The court treated the parents monolithically by failing to differentiate between the parents individually and by disregarding their current respective circumstances

. Likewise , the court also
treated the children in a m onolithic fashion, despite the differences in their experiences , bo th as to the abuse and the time spent with the ir parents pre

removal

. The Division offered no new evidence of harm to the two girls as a result of their relationship with their mother or their father.32 A

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We reverse the entry of guardianship with instructions to the Family Part 6

to reunite Anne and Claire with their mother within fifteen days. We reco gnize reunification with Chip is more complicated. We conclude, however, the Division did not meet its burden of proof as to Chip and we also reverse the entry of guardianship as to him. We are mindful of the legitimate concerns raised by the Division an d its experts and we do not order the immediate reunification of Chip with his mother. The matter shall continue under the abuse or neglect ( FN ) docket with reconsideration of the plan for permanency. We note the trial judge did not consider or discuss a lternatives to termination such as kinship legal guardianship , and those alternatives should now be explored

. See N.J. Div. of Child Prot. & Permanency v. M.M. , 459 N.J. Super. 246 (App. Div. 2019)

. While we recognize the risks attendant to returning a twice

- injured child
to a parent under the circumstances presented here, we remind the parties the Division is not without the ability to continue to monitor a family in need of services and to reinstitute litigation for as long as is necessary

. The Supre me Court of the United States stated i n Rivera v. Minnich ,

6 We direct this matter be assigned to the Presiding Judge of the Family Part.33 A

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. . . it always can try once again as family circumstances change or as it gathers more or better evidence. "Even when the parents have attained the level of fitness required by the State, they have no similar means by which they can forestall future termination efforts." [ 483 U.S. 574, 582 (1987) (quoting Santosky , 455 U.S. at 764 )

. ] The imposition of a higher standard of proof protects the parents, and to some degree the child, from renewed efforts to sever their familial ties. We add the following comments a bout the manner in which the case was tried. We need not reach the issue of whether a trial conducted remotely by a judge over video and audio conferencing deprived the parties of a fair trial. Although no evidentiary rule specifically governs the admiss ibility of either telephonic or remote video testimony, both Aqua Marine Prod

. , Inc. v. Pathe Computer Control Systems Corp. , 229 N.J. Super. 264, 275 (App. Div. 1988) and State v. Santos , 210 N.J. 129, 142 (2012) framed the admissibility of remote
testimo ny as an evidentiary admissibility issue. We recognize some situations require flexibility. See, eg. , N.J.S.A. 2A:4

- 30.155 (f) ( stating i n child support proceedings, " a tribunal of this State shall permit a party or witness residing outside this State to . . . testify under penalty34 A

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of perjury by . . . audiovisual means."); N.J.S.A. 2A:34

- 63(b) ( stating i n a child custody proceeding, "[a] court of this State may permit a n individual residing in another state to . . . testify by telephone, audiovisual means or other electronic means before a designated court or at another location in that state."); R. 1:20

- 6(c)(2)(A) (allowing, in attorney disciplinary hearings, the accept ance of testimony by video "[i]f special circumstances dictate"); R. 1:20A

- 3(b)(4) (allowing, in arbitration proceedings, for the acceptance of testimony by video "[i]f special circumstances dictate"); R. 7:8

- 7(a) (permitting a municipal court defendant to appear at trial "by means of a video link as approved by the Administrative Office of the Courts"). The record here does not explain why this trial was conducted in this

manner , or why , if there was a courtroom available in Essex County where the parties and witnesses were all in attendance, the trial judge considered it acceptable to conduct a trial from a distant county. We do not endorse this practice in trials of such constitutional magnitude as termination of parental rights. Reversed and reman ded with directions consistent with this opinion. We do not retain jurisdiction.