RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1190-18T2

NEW JERSEY DIVISION 

OF CHILD PROTECTION

AND PERMANENCY,

Plaintiff-Respondent,

v.

S.A.M.,

Defendant,

and

J.J.C.,

Defendant-Appellant.

____________________________

IN THE MATTER OF THE

GUARDIANSHIP OF A.C.,

a Minor.

____________________________

Submitted November 18, 2019 – Decided

Before Judges Messano and Susswein.

NOT FOR PUBLICATION WITHOUT THE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.

December 19, 2019
2

A-1190-18T2

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Ocean County, Docket 

No. FG-15-0040-18.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Robyn A. Veasey, Deputy Public Defender, 

of counsel; Dianne Glenn, Designated Counsel, on the 

brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Jane C. Schuster, Assistant Attorney 

General, of counsel; Amy B. Klauber, Deputy Attorney 

General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for minor (Todd S. Wilson, Designated 

Counsel, on the brief).

PER CURIAM

Defendant J.J.C. appeals from the Family Part's October 29, 2018 order 

that terminated his parental rights to his son, A.C. (Adam), who was born in 

2008.

1

 Defendant argues that the Division of Child Protection and Permanency 

(the Division) failed to prove prongs two, three, and four of the statutory bestinterests-of-the-child test, N.J.S.A. 30:4C-15.1(a). Those portions of the statute 

require that the Division prove:

1

 We use initials and fictitious names to preserve the confidentiality of the child 

and parties. R. 1:38-3(d)(12). The judgment of guardianship also terminated 

the parental rights of Adam's mother, defendant S.A.M. (Samantha). She has 

not appealed.
3

A-1190-18T2

(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.

[N.J.S.A. 30:4C-15.1(a)(2)-(4).]

The Division's proof as to all must be clear and convincing. N.J. Div. of Youth 

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

Family Servs. v. R.D., 207 N.J. 88, 113 (2011)).

The Division contends that the evidence at trial was sufficient and urges 

us to affirm the judgment. Adam's Law Guardian agrees and, contrary to the

position taken at trial, similarly argues we must affirm. Having consider the 

arguments in light of the record and applicable legal standards, we affirm, 

substantially for the reasons expressed by the trial judge, Madelin F. Einbinder, 

in her oral opinion.
4

A-1190-18T2

I.

On September 22, 2016, the Division received a referral from Adam's

school alleging that he told school personnel Samantha had been arrested. The 

school also reported that Adam was always "dirty" when he arrived at school. 

Although the Division had received an earlier 2015 referral, its investigation at 

that time failed to substantiate allegations that the child's parents used drugs in 

his presence. The Division offered evaluation services at the time, but defendant 

and Samantha never attended appointments. 

Upon receipt of the school's September 2016 referral, Division workers 

investigated the home and found it in deplorable condition, without electricity, 

running water and with little food. At the time, Adam was living with Samantha 

alone; defendant resided elsewhere. The Division contacted defendant, who 

responded to the scene. He refused to take custody of his son, claiming there 

was not enough room in the apartment he shared with his girlfriend. The 

Division effected a Dodd removal.

2

Defendants supplied the names of relatives with whom Adam might be 

placed, however, when contacted by the Division, they all refused to accept 

2

 A "Dodd removal" refers to the emergency removal of a child from the home 

without a court order pursuant to the Dodd Act, N.J.S.A. 9:6-8.29.
5

A-1190-18T2

custody of the child. The Division would not approve placement with two other 

relatives based on their experience with the Division, and placed Adam in the 

home of a resource family.

Neither defendant attended the guardianship trial on October 29, 2018. 

The Division's caseworker, Emmy Cubbage, testified that defendant and 

Samantha regularly attended supervised visitation with Adam, although 

defendant missed several visits in fall 2016 because he was incarcerated. Adam 

showed affection with both parents and was emotional when he had to leave and 

return to his resource family. Courtney Vainojoe from the Division's Adoption 

Unit, who was assigned to the case in February 2018, testified that both 

defendant and Samantha sometimes appeared to be under the influence during 

therapeutic visitations and were resistant to discussing some of the topics 

presented by the therapist. As of the time of trial, Adam refused to attend 

visitation with his parents, stating he was upset with their behavior.

Defendant reunited with Samantha shortly after Adam's removal, but later 

moved in with his parents. When they sold their home, defendant became

homeless, and, at the time of trial, he and Samantha were living in an abandoned 

van. The caseworkers both testified regarding the Division's efforts to assist 
6

A-1190-18T2

with housing services, but defendant failed to attend scheduled meetings and 

otherwise never followed through with social service agencies.

Defendant tested positive for cocaine at his initial urine screening in 

October 2016, but he successfully attended intensive outpatient treatment and 

made progress treating his addiction. Urine screens between November 2016 

and July 2017 were negative, but, in August 2017, defendant tested positive for 

suboxone. He had no prescription for the drug. His probation officer and 

Division staff noted defendant frequently appeared to be under the influence. 

Although defendant again began treatment, his initial compliance soon faltered. 

He failed to complete the intensive outpatient program, refused to re-engage in 

any other referrals and refused to provide additional urine screens or submit to 

hair follicle testing.

Adam manifested significant health problems and allergies. His school 

provided him an individualized educational plan to address his learning 

difficulties and ADHD. He also exhibited serious behavioral problems. At the 

time of trial, Adam was in his fourth foster home since removal, this time with 

a maternal great aunt, T.F. She remained willing to care for Adam but did not 

wish to adopt him or participate in kinship legal guardianship (KLG). Even after 
7

A-1190-18T2

Adam was placed with T.F., the Division continued to explore other relatives as 

possible placement alternatives and potential pre-adoptive homes.

The Division's expert, Dr. David Brandwein, a forensic psychologist, 

evaluated defendant and conducted a bonding evaluation with Adam and his 

parents. Dr. Brandwein diagnosed defendant with "opioid use disorder, severe;

cocaine use disorder, moderate; paranoid, antisocial, and narcissistic personality 

patterns; and inadequate housing." The doctor concluded that while defendant 

loved his son, his obvious drug use, failure to remain sober and continued denial 

of his problems made it unlikely he would be able to independently parent the 

child in the foreseeable future. 

Dr. Brandwein testified that Adam saw defendant and Samantha as his 

parents and there was a definite bond between them. However, the doctor 

opined that the bond was not secure. Because defendant had been "in and out 

of [Adam's] life" for the prior two years, the absences caused that bond to 

weaken. Dr. Brandwein acknowledged that he might have recommended giving 

the relationship more time if defendant re-engaged in treatment. However, 

because Adam had been in foster care for a long time, the doctor opined within 

a reasonable degree of psychological certainty that termination of defendant's 

parental rights would not do more harm than good to Adam. He admitted there 
8

A-1190-18T2

was no certainty that Adam would find a permanent home, but Dr. Brandwein 

believed that Adam faced greater harm by waiting for his parents who were not 

as invested in him as he was in them. 

Neither defendant called any witnesses nor presented any evidence. 

Adam's Law Guardian addressed the judge and explained that based on 

conversations with the child, Adam's adamant desire was to maintain an intact 

relationship with his parents.

In an oral opinion that immediately followed trial, and which we discuss 

more fully below, Judge Einbinder concluded the Division had carried its burden 

of proof as to all four prongs of N.J.S.A. 30:4C-15.1(a) and entered the judgment 

of guardianship. This appeal followed.

II.

Under our standard of review, we must uphold the trial court's findings if 

"supported by adequate, substantial, and credible evidence." N.J. Div. of Youth 

& Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (citing N.J. Div. of Youth & 

Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We defer to the judge's factual 

findings because she had "the opportunity to make first-hand credibility 

judgments about the witnesses . . . [and] ha[d] a 'feel of the case' that can never 

be realized by a review of the cold record." E.P., 196 N.J. at 104 (quoting N.J. 
9

A-1190-18T2

Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). We accord 

even greater deference to the Family Part's factual findings because of its 

"special jurisdiction and expertise in family matters[.]" N.J. Div. of Youth & 

Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 

154 N.J. 394, 413 (1998)). "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)). 

"The focus of a termination-of-parental-rights hearing is the best interests 

of the child." F.M., 211 N.J. at 447 (citing R.D., 207 N.J. at 110). The four 

statutory prongs "are neither discrete nor separate. They overlap to provide a 

composite picture of what may be necessary to advance the best interests of the 

child[]." M.M., 189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v. 

F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)).

A.

Defendant argues he consistently complied with substance abuse

treatment and therefore displayed a willingness to eliminate any harm caused to 
10 A-1190-18T2

Adam. This contention is supported by the Division's failure to produce any 

positive drug screens after he left the last treatment program in 2018.

The second prong "inquiry centers on whether the parent is able to remove 

the danger facing the child." F.M., 211 N.J. at 451 (citing In re Guardianship of 

K.H.O., 161 N.J. 337, 352 (1999)). This prong may be proven by "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[.]" K.H.O., 161 N.J. at 353. "Prong two may also be satisfied if 'the child 

will suffer substantially from a lack of . . . a permanent placement and from the 

disruption of [the] bond with foster parents.'" F.M., 211 N.J. at 451 (quoting 

K.H.O., 161 N.J. at 363).

Judge Einbinder found that both defendant and Samantha were "unwilling 

or unable to eliminate the harm" Adam faced. She noted that defendant was 

"homeless" and had "no[t] complied consistently with substance abuse 

treatment." She cited Dr. Brandwein's unopposed expert opinion that Adam 

would "continue to be endangered by the parental relationship." We note that 

the lack of any empirical proof of defendant's continued use or abstinence after 

leaving the last program in 2018 is the result of his refusal to submit to further 

testing.
11 A-1190-18T2

There was ample, credible evidence in the record to support the judge's 

conclusion, and we reject defendant's challenge to the sufficiency of the prong 

two proof.

B.

Defendant's argument regarding prong three is limited. He does not 

contend the Division failed to provide reasonable services toward reunification, 

but rather, defendant argues there was a viable placement option for Adam with 

a relative, C.F., Samantha's sister. Defendant claims the Division failed to 

reasonably consider her as a placement resource.

Prong three requires the court to "consider[] alternatives to termination of 

parental rights[.]" N.J.S.A. 30:4C-15.1(a)(3). Such alternatives may include 

placement of the child with a relative caretaker, N.J.S.A. 30:4C-12.1(a), or the 

establishment of KLG, N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 

210, 222 (2010). The Division has an obligation under N.J.S.A. 30:4C-12.1(a) 

to initiate a search for relatives who may be willing and able to provide care and 

support for a child. N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 

69, 81 (App. Div. 2013). Defendant's argument in this regard, however, lacks 

sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). 
12 A-1190-18T2

The testimony at trial was that shortly after the Division removed Adam, 

C.F. expressed an interest in caring for him. The Division cleared C.F. for a 

resource placement, however, at the time, Adam was doing well in his foster 

placement and Samantha requested he not be moved. C.F. agreed that Adam 

should not be placed in her home at that time. After the Division placed Adam 

with T.F. shortly before trial, it again contacted C.F. to ask if she was willing to 

take the child. She stated she was unable to do so and subsequently refused to 

return calls or attend appointments. The Division ruled her out as a placement. 

Additionally, Judge Einbinder found that T.F. told the Division that she 

was not interested in KLG or adoption. The proof as to prong three was 

sufficient.

C.

The fourth prong of the statute requires the court to determine that 

termination "will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). It 

serves as a "'fail-safe' inquiry guarding against an inappropriate or premature 

termination of parental rights." F.M., 211 N.J. at 453 (quoting G.L., 191 N.J. at 

609). "The question ultimately is not whether a biological 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 th[e] parent." E.P., 196 N.J. at 108. 
13 A-1190-18T2

Typically, "the [Division] should offer testimony of a well[-]qualified expert 

who has had full opportunity to make a comprehensive, objective, and informed 

evaluation of the child's relationship with both the natural parents and the foster 

parents." F.M., 211 N.J. at 453 (quoting M.M., 189 N.J. at 281).

Judges face exquisitely difficult decisions when, as here, the child has 

been through several resource family placements and resides at the time of trial 

with a resource parent unwilling to adopt him. As the Court has said:

[C]ourts have recognized that terminating parental 

rights without any compensating benefit, such as 

adoption, may do great harm to a child. Such harm may 

occur when a child is cycled through multiple foster 

homes after a parent's rights are severed. Indeed, the 

detriment may be greater than keeping the parent-child 

relationship intact since the child's psychological and 

emotional bond to the parent may have been broken 

with nothing substituted in its place. We know that 

termination of parental rights does not always result in 

permanent placement of the child and that too many 

children freed up for adoption do not in the end find 

permanent homes.

[E.P., 196 N.J. at 109 (quotations and citations 

omitted).]

Defendant argues that Adam has a significant emotional relationship with 

him, and the judge should have conducted an in camera interview of Adam to 

consider his wishes. However, the judge asked the Law Guardian if she intended 

to call the child as a witness, "or have him come in and speak with the Court[.]" 
14 A-1190-18T2

She specifically declined. We refuse to consider an issue claimed to be error 

when the court specifically adopted a position at counsel's urging. See M.C. III, 

201 N.J. at 340 (applying invited error doctrine).

Because of Adam's behavioral problems, defendant posits that the 

possibility of adoption is remote, consigning his son to a revolving door of 

resource home placements. Judge Einbinder was clearly concerned that the 

Division had not yet secured a pre-adoptive placement for Adam. Nevertheless, 

relying largely on Dr. Brandwein's expert opinion, she concluded termination 

"would not do more harm than good[.]" The judge differentiated the facts in 

this case from those presented in E.P., noting in that case, the child had an 

intense bond with her mother, the defendant, whereas here, because of 

defendant's absence and incarceration, the bond between Adam and his father 

was less strong than previously. 

We also think this case presents other facts that compel a different result 

than in E.P. In E.P., the nearly thirteen-year-old child was in her seventh foster 

placement at the time of trial with "no permanent placement . . . in sight." 196 

N.J. at 109. Here, the Division's caseworker testified that a pre-adoptive home 

was going to be evaluated the week after trial. We have no idea what the results 

of that were. Nevertheless, the point is that the possibility of permanency for 
15 A-1190-18T2

Adam is unlike that faced by the child in E.P., whose "slim hope of adoption" 

appeared as "elusive" as ever. Ibid.3

 Affirmed.

3

 The Law Guardian's position on appeal, as noted, is different from that 

expressed at trial. Although no motion to supplement the record was ever made, 

the Law Guardian's appellate brief states in a footnote that at the time the brief 

was filed, Adam was "placed in a pre-adoptive home where he wishes to remain, 

and therefore now supports the affirmance of the judgment of guardianship." 

The footnote is not critical to our decision.