### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2763- 22
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,

v. S.Z.K., M.H., a/k/a T.M.H., and T.G. , a/k/a T.L., Defendants, and D.M., Defendant-Appellant.

__________________________ IN THE MATTER OF THE GUARDIANSHIP OF D.D.M.M., and S.A.H., minors.

___________________________

Submitted April 8, 2024

– Decided April 23, 202 4 Before Judges Marczyk, Chase, and Vinci.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE Division This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2763 -22 On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG- 07

- 0040 -21. Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Louis W. Skinner, Designated Counsel, on the briefs). Matthew J. Platkin, Attorney General, attorney for respondent (Sara M. Gregory, Assistant Attorney General, of counsel; Alicia Y. Bergman, Deputy Attorney General, on the brief). Jennifer Nicole Sellitti, Public Defender, Law Guardian, attorney for minor D.D.M.M. (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Jennifer Marie Sullivan, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM Defendant D.M. appeals the Family Part's April 24, 2023 final judgment terminating his parental rights to his biological daughter, D.D.M.M. ("Dawn"). 1 Dawn's mother, S.Z.K., entered an identified surren der of Dawn and does not take part in this appeal. Because the trial court correctly applied the law, and substantial credible evidence supports its findings , we affirm.

1 We employ initials and pseudonyms to identify the p arties, the children, and others to protect the children's privacy and becaus e the records relating to Division proceedings held under Rule 5:12 are excluded from public access under Rule 1:38 -3(d)(12).3 A- 2763 -22 I. In May 2021 , Dawn was born prematurely, weighing approximately one pound. The Division of Child Protection and Perman ency ("Division") became involved with D.M. and Dawn on the date of Dawn's b irth. The Division had been involved with S.Z.K. and her four older childr en since 2017. Dawn has several half- siblings; her maternal siblings have all been adopted by other relatives, and her paternal siblings do not reside with D.M. Shortly after Dawn's birth, the Division met with S.Z.K. and D.M. S.Z.K. provided Dawn's maternal great-aunt, Y.J., as a pla cement resource. At that time, D.M. was residing with his mother and wanted Dawn to reside the re with
him . If not, he wanted her placed with Y.J. D.M. dec lined to offer any other potential placement resources. D.M. denied prior Division involvement, denied havi ng a criminal history, and claimed to maintain both stable employment and stable housing for Dawn

. A background check revealed D.M. had a criminal his tory , he did not have stable employment , and the Division was currently investigating allegations of sexual abuse involving one of his other children, but he h ad yet to comply with the requested sexually transmitted disease test. The D ivision also expressed concerns about some noted domestic violence issues between D.M. and S.Z.K.4 A- 2763 -22

D.M. confirmed he and S.Z.K. often had physical alt ercations, but explained they were trying to cease such behavior. When the Division asked D.M.'s mother whether Dawn could reside in her home, she d eclined , cit ing several issues concerning her health and ability to care fo r Dawn. In August 2021, Dawn was medically cleared for disc harge. The Division again met with D.M. and his mother, and D.M. explai ned he and S.Z.K. agreed on the plan for Dawn to live under the care of Y.J. D.M.'s mother again declined to be a placement option for Dawn. D.M. also reque sted a "paternity test." 2 The Division also learned S.Z.K. suffered a black eye in a recent i ncident with D.M. The next day, the Division obtained custody, care, and supervision of Dawn. She was discharged from the hospital and tak en to Y.J.'s home. D.M. and S.Z.K. were permitted "liberal visitation" with Dawn supervised by Y.J. Two weeks later, Dawn underwent surgery to repair a hernia. Despite knowing about the surgery , D.M. and S.Z.K. did not attend. Following the surg ery, Dawn required extensive follow-up medical care with many providers due to her premature birth, and Y.J. was diligent in ensuring Dawn received all necessary

care.

2 After not showing up for two scheduled genetic test s, D.M. was finally confirmed as the father in December 2021.5 A- 2763 -22

Throughout the rest of 2021, D.M. fluctuated in con sistently visiting Dawn. During some visits, D.M. cared for Dawn by h olding, feeding, and changing her; however, Y.J. expressed concerns that at times D.M. and S.Z.K. would argue during visits. Y.J. continued to provi de for Dawn's daily medical needs and ensured she received the numer ous necessary services for her development. In November 2021, following further physical alterc ations with S.Z.K., D.M. was referred for domestic violence services. In December 2021, with the assistance of the Division, D.M. secured an apartme nt. D.M. was still

un employed, but the Division provided him with information on locating potential job opportunities. The Division referred D.M. for a psychological evaluation with Mark Singer, Ed.D., which he attended in March 2022. Dr . Singer recommended D.M.: attend consistent supervised visitation with Dawn; participate in individual counseling, parenting -skills training, and drug treatment; undergo a psychiatric assessment; and obtain stable housing an d employment. As a result, the Division referred D.M. to a psychiatric evaluat ion, individual therapy, substance abuse evaluation, parenting skills traini ng, and batterer's intervention ; however, he failed to complete any of the referred services.6 A- 2763 -22

On April 28, 2022, the Division confirmed D.M. had not visited Dawn since December 2021. Throughout May and June, 2022 , D.M. occasionally visited Dawn; however, none of the visits were the mandated Division

supervised visits, and the visits did not occur fre quently enough to establish a consistent visiting routine. The Division assessed D.M.'s apartment in May 2022. The Divisi on caseworker observed a one-bedroom apartment with pr operly working utilities. The caseworker also observed no furniture throughou t the home and cigarette ashes and vomit on the floor. D.M. never provided a copy of his lease, as requested, for the Division to review. In June 2022, D.M. obtained employment and continue d sporadic visitation with Dawn. The Division provided D.M. with a bus pass for transportation to visits and other services. In ea rly July 2022, D.M. and S.Z.K. attended a family party where they engaged in a phy sical altercation, which resulted in D.M. being arrested and charged with si mple assault. Dawn was present at the family party but did not witness the altercation. In July, D.M. was advised about the services he sti ll needed to complete to make progress towards the goal of reunification. The Division also sent D.M. a letter in August 2022, providing details on the s ervices and contact information7 A- 2763 -22

for each of the service providers. D.M. failed to attend four scheduled visits with Dawn in September 2022, and failed to visit with Da wn at all in October

. When asked about the missed visits, D.M. said he wa s too busy. During a meeting with the Division in November 2022, D.M. expressed his desire to share joint custody of Dawn with Y.J. , which the Division believed meant he preferred the option of Kinship Legal Guar dianship (" KLG "). Y.J. was not interested in this option, and the Division explained it could not force her to agree to KLG. Y.J. clearly expressed her de sire to adopt Dawn and identified herself as the only person responsible f or Dawn's medical care and other needs while highlighting the parents' failure to make any progress towards reunification over the previous year. The Division informed D.M. because Dawn had been in its care for over a year, it had c hanged its goal from reunification to adoption. To that point, D.M. had yet to complete any of the recommended services and failed to visit Dawn throu ghout November. In November 2022, the Division again sent D.M. a letter listing the services he still needed to complete and included t he contact information for each of the providers. D.M. was not responsive to the Divis ion's efforts to meet in person or via telephone. The Division again sen t D.M. multiple letters between December 2022 , and February 2023 , all advising him about the8 A- 2763 -22

guardianship litigation and listing the required se rvices with the applicable contact information. D.M. remained unresponsive to the Division. He also did not respond to attempted Division visits in February 2023, and he failed to visit with Dawn as well. A perman en cy hearing occurred over two days in April 2023. D espite having notice, D.M. did not appear. As its first witness, the D ivision presented C.G., another aunt of Dawn's who had adopted Dawn's older maternal halfsiblings and had a relationship with Dawn and Y.J. The Div ision then presented Y.J. as well as J.O. and E.I., the caseworkers for Dawn. Defendant called no witnesses. Prior to the court's decision, S.Z.K. surrendered h er parental rights, identifying Y.J. as the person to adopt Dawn. In a n oral decision, the trial court, after analyzing the four prongs of the best interes ts of the child test under
N.J.S.A. 30:4C -15.1(a), entered an order terminating the parents' parental rights, awarding guardianship of Dawn to the Division for p ermanent placement and adoption by Y.J. On appeal, D.M. argues the court erred in finding t he Division satisfied by clear and convincing evidence the four prongs of the best interests test9 A- 2763 -22

warranting termination of his parental rights. The Law Guardian sides with the Division in urging we affirm the court's decision.
II. Our scope of appellate review is limited. It is we ll established that in Title 30 cases we will not second-guess or substitute our judgment for that of the family court, provided that its factual findings ar e "grounded in substantial and credible evidence in the record." N.J. Div. of Child Prot. & Permanency v. D.C.A., 256 N.J. 4, 19 (2023). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questi ons of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D. , 149 N.J. 108, 117 (1997)). "We accord deference to fact[-]findings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses spec ial expertise in matters related to the family." N.J. Div. of Youth & Fam. Servs. v . F.M., 211 N.J. 420, 448 (2012). "[A] trial court's factual findings 'shoul d not be disturbed unless they are so wholly unsupportable as to result in a denia l of justice.'" N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 511 (200 4) (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We owe no deference to a10 A- 2763 -22

judge's legal conclusions which are reviewed de nov o. N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 369 (2017). The applicable law is clear. When terminating pare ntal rights, the trial court applies the statutory best interests test, wh ich requires consideration of four prongs: (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 th e delay of permanent placement will add to the harm; (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. [N.J.S.A. 30:4C-15.1(a).] The Division must prove each prong by "clear and c onvincing evidence." N.J. Div. of Child Prot. & Permanency v. D.H., 469 N.J. Super. 107, 115 (App. Div. 2021). These prongs are not discrete and sepa rate; they overlap to inform a more general inquiry that the termination of pare ntal rights is in a child's best11 A- 2763 -22

interests. N.J. Div. of Child Prot. & Permanency v . R.L.M., 236 N.J. 123, 145 (2018). "The question ultimately is not whether a b iological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that pare nt." N.J. Div. of Youth & Fam. Servs. v. T.S., 417 N.J. Super. 228, 249 (App. Div. 2010) (quoting N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 108 (2008 )). "Parents have a constitutionally protected right to maintain a relationship with their children." N.J. Div. of Youth & Fam. Se rvs. v. M.M., 189 N.J. 261, 279 (2007). That right, however, "is not absolute" and is limited "by the State's parens patriae responsibility to protect children w hose vulnerable lives or psychological well-being may have been harmed or ma y be seriously endangered by a neglectful or abusive parent." F.M ., 211 N.J. at 447. In guardianship and adoption cases, such as here, it i s well-established that "[c]hildren have their own rights, including the right to a permanent, safe[,] and stable placement." N.J. Div. of Youth & Fam. Servs . v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004). We acknowledge "the need for permanency of placements by placing limits on the time for a birt h parent to correct conditions in anticipation of reuniting with the child." Ibid. Thus, a parent's interest must,12 A- 2763 -22

at times, yield to the State's obligation to protec t children from harm. See N.J. Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 397 (2009).
III. A main theme of D.M.'s arguments is that he is being unfairly penalized for his financial inability to provide a safe and s table home for Dawn. It "is well settled that poverty alone is not a basis for a fin ding of abuse or neglect." N.J. Div. of Youth & Fam. Servs. v. L.W., 435 N.J. Super . 189 (App. Div. 2014) (citing Doe v. G.D., 146 N.J. Super. 419, 430-31 (A pp. Div. 1976), aff'd sub nom., 74 N.J. 196 (1977)). However, the trial cour t's decision was not improperly based on D.M.'s poverty level. Rather, the tria l court's decision was based on a litany of factors concerning defendant's well-documented actions and inactions

. A. Defendant argues the trial court erred in finding t he D ivision satisfied the interrelated first two prongs of the best interests test, explaining he could not harm the child because he was never given an opport unity to care for her following her birth. Moreover, he argues even thou gh his visits were inconsistent at times, he demonstrated significant effort to remain in the child's life and when visits did occur, he acted appropriat ely with the child and tended13 A- 2763 -22

to her needs. Therefore, he posits he is not unwil ling or unable to eliminate the harm facing the child. Under these two prongs, "[T]he Division must prove harm that 'threatens the child's health and will likely have continuing deleterious effects on the child.'" N.J. Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 25 (2013) (quoting In re Guardianship of K.H.O., 161 N.J. 337, 3 52 (1999)). The "focus is on the effect of harms arising from the parent-child relat ionship over time on the child's health and development." K.H.O., 161 N.J. at 348. The Division may seek termination when there are "indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, [and] the inability to provide a stable and protective home [ .]" Id. at 353. Because the first two prongs are closely intertwined, "evidence that supports one [prong] informs and may support the other as part of the co mprehensive basis for determining the best interests of the child." D.M.H., 161 N.J. at 379. Moreover, a "parent's withdrawal of [parental] soli ci tude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Ibid. The trial judge duly considered D.M.'s inconsistent visitation and lack of contact with Dawn for an extended period of time, h is inability to remediate the14 A- 2763 -22

concerns that led to Dawn's initial placement, the concerns in his psychological evaluation, the lack of stable housing or employmen t, his domestic violence towards S.Z.K. , and the condition of his housing with vomit and cigarettes on the floor. D.M. remained non-compliant with multip le services despite repeated offers to provide transportation and encouragement from caseworkers and providers

. These actions and inactions demonstrated he c oul d not eliminate the harm to Dawn. The record amply supports the judge's findings on p rongs one and two.
B. With respect to prong three, D.M. alleges the Divis ion did not take reasonable steps to provide him with services. "Re asonable efforts" include, but are not limited to:

(1) consultation and cooperation with the parent in developing a plan for appropriate services; (2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification; (3) informing the parent at appropriate intervals o f the child's progress, development, and health; and (4) facilitating appropriate visitation. [N.J.S.A. 30:4C-15.1(c) .] Courts do not measure reasonableness by the "succes s" of the efforts. N.J. Div. of Youth & Fam. Servs. v. J.S., 433 N.J. Super. 69, 90 (App. Div. 2013) (quoting15 A- 2763 -22

D.M.H., 161 N.J. at 393). What is reasonable "depe nd[s] on the facts and circumstances of each case." N.J. Div. of Child Pr ot. & Permanency v. R.G. , 217 N.J. 527, 557 (2014). The record is replete with the Division offering D.M. multiple services, in multiple ways, and on multiple occasions. These included, but are not limited

to , psychological and psychiatric evaluations and tre atment, substance abuse evaluation and treatment, referral to a batter er 's intervention program, parenting class, supervised visitation through the D ivision, transportation assistance, and financial assistance

. The trial judge found not only did the D ivision offer these services, but also "followed up and in every way at tempted to engage [D.M.] in a process" that he simply failed to cooperate with. D.M. also alleges the trial court was incorrect in finding prong three was satisfied because the Division did not follow its statutory mandate as to the relative placement and KLG. In 2021, the Legislatu re amended Title 30 and Title 3B, which concern KLG proceedings. L. 2021, c. 154. The current statute as revised provides KLG is proper when:

(1) each parent's incapacity is of such a serious n ature as to demonstrate that the parents are unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child ;16 A- 2763 -22 (2) the parents' inability to perform those functio ns is unlikely to change in the foreseeable future; (3) in cases in which the [D]ivision is involved wi th the child as provided in [N.J.S.A 30:4C-85], . . . the [D]ivision exercised reasonable efforts to reunify the child with the birth parents and these reunificatio n efforts have proven unsuccessful or unnecessary; an d (4) awarding [KLG] is in the child's best interests

. [N.J.S.A. 3B:12A-6(d).] With this amendment, the Legislature removed a prev ious requirement that courts first find "adoption of the child is ne ither feasible nor likely" before appoint ing a caregiver as a KLG. Compare L. 2021, c. 154, § 4 (current N.J.S.A. 3B:12A-6(d)(3)), with L. 2006, c. 47, § 32 (prior version). As amended, the KLG Act ensures a resource parent's willingness to adopt no longer forecloses KLG. See N.J.S.A. 3B:12A-6(d)(3). However, the re vision of the KLG statute did not eliminate the trial court's discretion, upo n considering and weighing all the evidence, to favor a child's need for permanency over proffered alternatives. See, e.g. , In re Guardianship of J.C., 129 N.J. 1, 26 (1992) ( "[C]hildren have an essential and overriding interest in stability and permanency.")

. The Division asked Y.J. about KLG well before tria l. At trial, when asked whether she understood the difference between KLG and adoption, Y.J. testified she did, however, she wished to adopt the child as her legal child. Y.J.17 A- 2763 -22

confirmed her strong relationship with the foster p arent of the child's other siblings, explaining they work together to ensure the children are together for major events, such as holidays and family vacations . Y.J. further explained she ensures the child has frequent interactions with he r siblings. While Y.J. remained firm in her desire to adopt over KLG , she expressed openness to allowing both D.M. and S.Z.K. to maintain contact with Da wn at her discretion.
No evidence was proffered to contradict the resource p arent's desire to adopt. The trial court therefore reasonably concluded, "it is clear that this relationship

— one of adoption with [Y.J.] is an appropriate plac ement, and there are no better alternatives to termination of parental righ ts [, ]" and concluded the
D iv i sion properly considered alternatives to termination, i ncluding KLG.
C. Finally, D.M. argues the trial court's decision to terminate his parental rights under the fourth prong of the best interests test was improperly based on speculations as to his lack of sustainable housing, infrequent visitation, and overall unfitness to parent. He highlights the law guardian's failure to have an expert evaluate the parent-child bond, which he bel ieves should have led the trial court to conclude the fourth prong was not me t.18 A- 2763 -22

When amending Title 30, the Legislature amended onl y prong two of the best interests standard under N.J.S.A. 30:4C-15.1(a ) by deleting the sentence, "[s]uch harm may include evidence that separating t he child from his resource family parents would cause serious and enduring emo tional or psychological harm to the child." Compare L. 2021, c. 154, § 9 (current N.J.S.A. 30:4C15.1(a)(2)), with L. 2015, c. 82, § 3 (prior version). The amendment did not preclude a court's consideration of a child's bond to a resource parent under prong four. Our Court has recognized "[t]he Legislature acted to preclude trial courts from considering harm resulting from the ter mination of a child's relationship with resource parents when they assess parental fitness under the second prong, but not to generally bar such evidenc e from any aspect of the trial court's inquiry." D.C.A., 256 N.J. at 26 (citing L. 2021, c. 154). To foreclose a child's bond with their resource parents from consideration " would deprive a court of crucial information as it determines a chi ld's future and could imperil children whom New Jersey is charged to protect." I d. at 27

- 28. The trial court held "there's hardly any positive [ evidence supporting] continuing forward in a relationship with [D.M. bec ause] he really hasn't attempted to develop relationship with the child or any kind of meaningful relationship." The trial judge explained D.M. has not provided care or assisted19 A- 2763 -22

in providing care for the child and has not demonstr ated his ability to provide or be willing to provide financial support for the chi ld. The trial court placed a large emphasis on the value of the child residing w ith Y.J., whom he describes as "a loving, caring individual who stepped up," be cause it affords the child the best chance to live a healthy and happy life after being born with so many medical and personal difficulties. Generally, the Division's proofs should include tes timony by an expert who has had an opportunity to make a "comprehensive, objecti ve, and informed evaluation of the child's relationship with both the natu ral parents and the foster parent[,]" M.M., 189 N.J. at 2 81 , and the court must also consider "parallel proof relating to the child's relationship with his or her natural parents in assessing the existence, nature, and extent of the harm facing the child." N.J. Div. of Youth & Fam. Servs. v. A.R., 405 N.J. Super . 418, 440 (App. Div. 2009) (quoting In re Guardianship of J.C., 129 N.J. at 19 ). However, where the termination is "not predicated upon bonding, but ra ther reflect[s] [the child's] need for permanency and [the biological parent's] i nability to care for [the child] in the foreseeable future[,]" a lack of bonding eva luation is not fatal to the Division's case. See N.J. Div. of Youth & Fam. Servs. v. B.G.S., 2 91 N.J. Super. 582, 593-94 (App. Div. 1996).20 A- 2763 -22

Defendant's inconsistent an d infrequent visitation with Dawn never allowed for a bond strong enough for the court to c onsider under the fourth prong of the best interests test to form. Further, the c ourt's decision was not predicated on the bond, or lack thereof, between defendant and the child, but rather it was predicated on the child's need for permanency and d efendant's inability to care for the child for the foreseeable future. The tria l court recognized this, stating "it's clear that termination of [appellant's] paren tal rights in this case will do no more harm than good. It's clear and convincing evi dence termination followed by adoption . . . [will] cause much more good than any harm of terminating that right." Finally, to the extent we have not otherwise addres sed any of appellant's remaining arguments, we determine they lack suffici ent merit to warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E). Affirmed.