DCPP VS. J.G. AND L.R., IN THE MATTER OF GUARDIANSHIP OF N.R. (FG-09-0101-20, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED)

D
                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NOS. A-2772-19
                                                                    A-2773-19

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

J.G. and L.R.,

     Defendants-Appellants.
__________________________

IN THE MATTER OF THE
GUARDIANSHIP OF N.R.,
minor.
__________________________

                   Argued April 14, 2021 – Decided July 6, 2021

                   Before Judges Ostrer, Accurso and Enright.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Hudson County,
                   Docket No. FG-09-0101-20.

                   Anastasia P. Winslow, Designated Counsel, argued the
                   cause for appellant J.G. (Joseph E. Krakora, Public
             Defender, attorney; Anastasia P. Winslow, on the
             briefs).

             Robert W. Ratish, Designated Counsel, argued the
             cause for appellant L.R. (Joseph E. Krakora, Public
             Defender, attorney; Robert W. Ratish, on the briefs).

             Salima E. Burke, Deputy Attorney General, argued the
             cause for respondent (Gurbir S. Grewal, Attorney
             General, attorney; Melissa H. Raksa, Assistant
             Attorney General, of counsel; Salima E. Burke, on the
             brief).

             David Valentin, Assistant Deputy Public Defender,
             argued the cause for minor (Joseph E. Krakora, Public
             Defender, Law Guardian, attorney; Meredith Alexis
             Pollock, Deputy Public Defender, of counsel; David
             Valentin, on the brief).

PER CURIAM

      In these consolidated cases, defendants J.G. (Jill) and L.R. (Lewis) appeal

from a February 21, 2020 guardianship judgment terminating their parental

rights to their biological son, N.R. (Neil),1 as well as from an earlier order arising

out of a best interests hearing that Neil be placed with his resource parents in

the event defendants' parental rights were terminated. Having reviewed the

record in light of defendants' arguments, we conclude the trial judge correctly




1
  Pseudonyms and initials are used to protect the identity of the parties, minors
and other individuals referenced in this appeal. R. 1:38-3(d)(12)
                                                                               A-2772-19
                                          2
applied the governing legal principles, and his findings are amply supported by

competent credible evidence. Therefore, we affirm.

                                     I.

      Neil was born prematurely in April 2018. He suffered from significant

health issues, including anemia, sepsis, fetal hydrops, and bilateral profound

sensory neural hearing loss, causing him to spend several weeks in the hospital.

When he was discharged in May 2018, the Division of Child Placement and

Permanency initiated a Dodd removal 2 and placed Neil with non-relative

resource parents, M.M. (Mark Mason) and A.M. (Ann Mason). He remained in

the Masons' home throughout these proceedings.

      Defendants have a history with the Division predating Neil's birth. Jill

has two sons, E.G. (Ed) and J.C. (Jim), from prior relationships and another son,

S.R. (Sam) with Lewis. In 2011, Ed and Jim were placed with a maternal

relative who, in 2014, was granted kinship legal guardianship (KLG) of the boys

under the Kinship Legal Guardian Act, N.J.S.A. 3B:12A-1 to -7. In 2018,




2
  A "Dodd removal" refers to the emergency removal of a child from the home
without a court order, pursuant to the Dodd Act, which, as amended, is found at
N.J.S.A. 9:6-8.21 to -8.82.


                                                                           A-2772-19
                                          3
defendants surrendered their parental rights to Sam to a non-relative caregiver

who adopted him.

      Given their lengthy involvement with the Division and the commencement

of this case, defendants submitted to multiple court-ordered psychological,

substance abuse and bonding evaluations.          Additionally, the Masons and

defendants' family friends, M.P. (Meg Pratt) and T.P. (Tom Pratt),3 underwent

bonding evaluations per court order. The results of these evaluations factored

into the trial court's placement and guardianship decisions, so we highlight some

conclusions and comments from the evaluators to provide context for our

decision.




3
   Throughout this litigation, defendants referred to the Pratts as "their family."
Also, Jill’s brief states the Pratt family had "long-held ties with Jill's family and
were considered kin and relatives." However, the Division acknowledged
during the best interests hearing the Pratts were not "blood relatives" and the
trial court's oral opinion of December 18, 2019 included the finding the Pratts
were "not [defendants'] relatives." Further, the record reflects one of Jill's aunts
knew Tom as a family friend for years, Tom knew Jill when she was a girl,
before she had children, and Jill advised one of her aunts was a life partner with
someone in the Pratt family. Additionally, Tom met Lewis after visits started
through the Division, and Meg met Jill through the Division. Defendants did
not provide the Pratts' names to the Division; instead, when one of Jill's maternal
aunts was being explored for possible placement and she declined due to a health
issue, she offered the names of the Pratts as family friends interested in caring
for Neil.
                                                                              A-2772-19
                                         4
      During a 2017 psychological evaluation, Jill disclosed she was raised by

her maternal aunt after her parents died. She also divulged she started receiving

Supplemental Security Income disability benefits in 2009, never held a job, and

began abusing phencyclidine (PCP) when she was sixteen years old. Testing

during the evaluation revealed Jill's estimated full-scale IQ was sixty-three,

placing her below ninety-nine percent of the general population and in the

intellectually deficient range.

      When Lewis was psychologically evaluated in 2016 and 2017, he achieved

a full-scale IQ score of fifty-five, the lowest possible score on that test. Because

Lewis exhibited confusion during his 2017 evaluation, his evaluator opined

"[e]ventually, it might . . . be worthwhile for [Lewis] to have a neurological

evaluation to see if there are neurological sources of his confusion."

      In the spring of 2018, due to ongoing litigation regarding Sam's

placement, the Division referred defendants to Karen D. Wells, Psy.D. for

updated psychological evaluations.      Dr. Wells concluded that although Jill

would not deliberately harm Sam, her "cognitive limitations, coupled with the

potential for relapse to PCP pose severe and grave risks to her son's well-being."

Once Neil was removed from defendants' care, Dr. Wells supplemented her

report to address his circumstances. She opined he would "require not only


                                                                              A-2772-19
                                         5
someone to be available to attend to [his medical] appointments, but also to

understand the information being presented by the various doctors providing

treatment, as well as follow-up with the services, medications, and scheduling

of additional appointments."     She found Jill "lack[ed] the wherewithal to

independently function in this regard."

      When Dr. Wells evaluated Lewis, she noted he was abusing drugs by age

thirteen, had a significant juvenile history, and was hit in the head with a metal

bat as an adolescent.     She concluded he did "not possess the emotional,

psychological, or cognitive capacity to assume a parenting role" for Sam and

that his "marked intellectual deficits [were] unlikely to change." Her evaluation

included Lewis's expressed beliefs there was one hour in a day and 365 weeks

in a year. Dr. Wells ultimately recommended against defendants' reunification

with Sam, and they subsequently surrendered their rights to the child.

                                     II.

      In August 2018, Meg Pratt met with a Division worker to inquire how she

and her husband could become Neil's custodians. A Division worker introduced

Meg to Jill at the meeting, as the two had not met previously. Thereafter, and

until the best interests hearing concluded on December 18, 2019, the Division

and defendants supported Neil's placement with the Pratts in the event


                                                                            A-2772-19
                                           6
defendants' parental rights were terminated. The Law Guardian consistently

objected to this plan, instead favoring Neil's placement with the Masons.

      Starting in August 2018, the trial court permitted the Pratts to attend

defendants' supervised visits with Neil. Three months later, based on the Pratts'

request to have Neil placed with them, and considering their New York

residency, the trial court ordered an expedited assessment to be conducted

through the Interstate Compact on the Placement of Children. It took over a

year for the assessment to be completed and the Pratts to be approved as a

placement option. In the interim, they became licensed as resource parents.

                                     III.

      Neil received cochlear implants in separate surgeries in May 2019. That

month, Meg notified the Division she had not yet taken sign language lessons to

communicate with Neil because she had "faith [he was] going to hear." Tom

advised he was willing to take sign language classes but had educated himself

about sign language and could fingerspell Neil's name. By this time, Ann had

been teaching Neil sign language for several months. She and her husband also

received training from Neil's audiologist, Nicole Raia, Sc.D., regarding the

maintenance and basic functions of Neil's devices, as well as how to

progressively program his processors.


                                                                            A-2772-19
                                        7
      Once the Pratts became licensed, the Division proposed placing Neil with

them. It also moved to allow the Pratts overnight visits with Neil. The Law

Guardian opposed the Division's requests and asked for a best interests hearing

to address Neil's placement. In May 2019, the judge denied the Pratts overnight

visits and approved the Division’s plan of termination of parental rights,

followed by adoption "by an individual who will be determined after the best

interest hearing." In anticipation of that hearing, the judge ordered the Pratts

and Masons to submit to bonding evaluations that month with Robert James

Miller, II, Ph.D.; also, the judge scheduled the best interests hearing for a date

in August 2019.

      Dr. Miller issued his comparative bonding evaluations for the Masons and

the Pratts in June 2019.       The doctor determined Neil was emotionally

constrained during his evaluation with the Pratts, was not emotionally attached

or bonded with them, and they did not respond to his behavioral cues. Also, Dr.

Miller concluded Neil would not experience a negative reaction if his

relationship with the Pratts discontinued. Conversely, Dr. Miller determined the

Masons followed Neil's cues for play, responded to his needs, and used sign

language with him so that Neil increased his vocalization around them. He

opined Neil had a secure attachment to the Masons and if this relationship was


                                                                            A-2772-19
                                        8
severed, Neil would experience it as a "catastrophic loss," triggering "immediate

and enduring harm to his psychological and emotional development." The

doctor added, "[s]eparation would result in incomprehensible loss for [Neil],

would undermine his apparent progress, and undermine the needed supports in

place to help [Neil] overcome significant and enduring developmental

challenges since birth . . . . [T]here appears no psychologically valid need or

reason to change the placement arrangement."

      Dr. Wells again evaluated Jill and Lewis in May and July 2019,

respectively. By then, defendants had been evicted for nonpayment of rent and

were homeless. Jill reported she and Lewis slept on the PATH train or at the

Hoboken terminal.4 Similar to her evaluation in 2018, Dr. Wells opined Jill did

            not possess the cognitive capacity or wherewithal to
            consistently and independently attend to [Neil's] day-
            to-day needs. While it is believed . . . she loves [Neil]
            and would make every effort to provide for his best
            care, it is opined that even at her best, [Jill] lacks the
            capacity to fully address [Neil's] needs.

Dr. Wells also expressed concern about Jill's chronic addiction to PCP,

concluding it would adversely impact her ability to care for Neil. Additionally,



4
   According to the Division, it subsequently assisted defendants in securing
documentation so they could move to a shelter. They still lived at a shelter by
the time the guardianship trial concluded.
                                                                           A-2772-19
                                        9
Dr. Wells stated that "[c]onsistent with conclusions . . . from prior evaluations,

. . . [Lewis] does not possess the emotional, psychological, or cognitive capacity

to assume a parenting role. Limited in his ability to care for himself, [Lewis]

does not have the ability to independently attend to the needs of a child." Dr.

Wells recommended defendants' parental rights to Neil be terminated.

      Dr. Wells also conducted bonding evaluations for defendants, the Masons

and the Pratts in July 2019. Following defendants' bonding evaluation, Dr.

Wells concluded:

            Although [defendants] were observed to relate in a
            loving and positive manner with [Neil], clinical support
            cannot be given for them to assume care for him . . . .
            They are not stable in their own functioning, continue
            to engage in illicit drug use, and by their own report
            recognize that they are not capable of attending to
            [Neil's] needs at this time . . . . [Defendants'] ability to
            accurately,     appropriately,        consistently      and
            independently respond to [Neil's] needs is lacking, with
            such increasingly highlighted given [his] audiological
            needs. (Emphasis added).

      During the Masons' bonding evaluation, they advised Dr. Wells they

would "love to adopt" Neil. Additionally, Ann informed Dr. Wells that because

Neil required several daily medical appointments when he was initially placed

in her home, she took an extended leave of absence from work for three months.

She further disclosed she taught Neil sign language, and arranged to have a doll


                                                                            A-2772-19
                                       10
custom made for him so the doll wore cochlear implants. Dr. Wells determined

Neil trusted the Masons to be "reliable, trustworthy and accessible parental

figures," and if he remained in their care, it was "without question," he would

"continue to thrive."

      When Dr. Wells assessed the Pratts, Meg reported she and her husband

remained interested in assuming custody of Neil, and that Tom was learning sign

language. She added, "if I have to go, I'll go, too." Dr. Wells asked Tom how

he was "doing with . . . sign language," and he responded, "I was getting real

good at it, but then I kind of slacked off." Dr. Wells concluded Neil was

comfortable with the Pratts but did not relate to them as parental figures. Based

on her assumption defendants would be unable to care for Neil in the foreseeable

future, Dr. Wells favorably viewed Neil's placement with the Pratts.         She

acknowledged Neil might experience "acute distress, confusion and mild

regression" if he transitioned to the Pratts' home, but she determined they could

mitigate that harm. Dr. Wells opined Neil's "placement must be with a guardian

that is willing to spend at least one hour every evening dedicated to expanding

spoken language or dedicated to learning fluent American Sign Language . . .

for him to use [t]otal [c]ommunication." (Emphasis added). Understanding the

Pratts "had not been given the opportunity or responsibility to independently


                                                                           A-2772-19
                                      11
care for" Neil, Dr. Wells nonetheless concluded Neil's "short and long-term

[b]est [i]nterest needs can best be met by" the Pratts.

      Prior to the best interests hearing scheduled for August 2019, defendants

requested a postponement to enable them to secure bonding evaluations with

their experts. The judge rescheduled the hearing to October 1, 2019 and notified

all parties at that time that Neil's audiologist would be testifying at the hearing.5

Additionally, in August 2019, at the Law Guardian's request, Dr. Miller issued

a report concerning the Division's request that Neil start overnight visits with

the Pratts.     The doctor recommended against overnight visits, stating,

"[s]eparating [Neil] from his current home, bedroom/toys, and important

nighttime routines with the adults who, from his perspective are his

(psychological) parents, will most probably result in increasing confusion and

frightening separation anxiety."       The trial court subsequently denied the

visitation request without prejudice, stating, in part:

              The court is not inclined to grant overnight visitation to
              [the Pratts] until . . . they have demonstrated they have
              a full working understanding of [Neil's] remaining
              medical issues that they would need to deal with when
              the child is in their home overnight. The court notes
              that in the Division's report, Dr. Wells recommends [the

5
 The judge issued another order in September 2019, confirming Drs. Wells and
Miller also would testify at the best interests hearing.


                                                                              A-2772-19
                                         12
            Pratts] learn about the "cochlear implants, process[ors],
            and battery requirements, daily activities, feeding
            times, and nighttime routine[]" of the child.

      Shortly after the best interests hearing was adjourned, Dr. Wells updated

her position regarding Neil's placement. She stated she was "no longer able to

clinically support that [Neil] would be removed from his current resource home

to be placed with [the Pratts]." She found it concerning Meg had not attended

scheduled appointments to complete bonding evaluations arranged by

defendants' attorneys and had not consistently attended Saturday visits with

Neil. Dr. Wells also was troubled neither one of the Pratts attended a critical

appointment with Dr. Raia in August 2019 "to receive training and information

regarding [Neil's] progress and needs."

      In late September 2019, Lewis tested positive for PCP and the Division

reported he had not complied with a substance abuse evaluation or treatment.

At that point, defendants again asked the court for time to obtain updated

bonding evaluations with their experts, citing "unexpected work emergencies on

the part of [Meg] that caused her not [to be] able to attend the selected dates

. . . put forth by the experts." The Division supported the adjournment request,

but the Law Guardian objected, arguing defendants had "ample opportunity to

conduct these bonding evaluations." The Law Guardian contended the best


                                                                          A-2772-19
                                      13
interests hearing previously was adjourned to allow defendants to coordinate the

Pratts' bonding evaluations, the hearing was due to commence within a matter

of days, her bonding expert was prepared to testify, and the timing of defendants'

request was highly prejudicial to Neil.             The judge denied defendants'

adjournment request, explaining Neil had been in placement since the spring of

2018, the parties were told in May 2019 about the upcoming best interests

hearing, and he was being asked "[o]n the eve of the hearing . . . for additional

time." He stated he would not "delay this child's permanency any further." Also,

as this hearing occurred two days after Dr. Wells withdrew her support for Neil's

placement with the Pratts, the judge stated he had no evidence "from any expert

. . . at this time" to suggest the Pratts would be an "appropriate placement." He

concluded, "[t]o adjourn this case to give [Meg] the opportunity to show up to

this appointment when she had that for the last four months, doesn’t make sense

to me." Likewise, the judge denied defendants' request to initiate overnight

visits between Neil and the Pratts, finding he did not have "any proffer of any

single expert that says that this is a good idea." Significantly, the judge clarified

he was "just ruling on . . . a motion to delay this trial," that "no report . . . exists

to serve late," and he would consider an application to serve a late expert report

if one was secured.


                                                                                 A-2772-19
                                         14
                                      IV.

      The best interests hearing commenced on October 1, 2019 and concluded

over two months later. During the nine-day proceeding, over a dozen witnesses

testified, including the Masons, the Pratts, the Division's adoption specialist,

Kevin Roleson, and Drs. Wells, Raia and Miller.

      On the first day of trial, Dr. Raia testified about the importance of Neil

having "total communication" abilities, which she described as using "hearing,

spoken language, and American Sign Language." Further, she emphasized the

importance of a parent applying early intervention therapy techniques on a daily

basis, stating "children who don't get early intervention or get inconsistent early

intervention really don't develop good speech and language. It's really the

foundation for all other learning." She added, "[t]he parent has to take every

moment of their day to expand upon language."

      Following Dr. Miller's testimony at the end of October, counsel for each

defendant informally requested permission to proceed with a bonding evaluation

between the Pratts and Neil. The judge reminded counsel they knew of the best

interests hearing "way in advance," that their applications could possibly delay

the hearing, and they should have filed formal motions in support of their

requests. The judge further remarked it would be unfair to Neil to permit the


                                                                             A-2772-19
                                       15
defense to secure bonding evaluations after Dr. Miller testified.           Once

defendants renewed their request for the Pratts' bonding evaluation via formal

motions, the judge denied their applications, finding it would be "fundamentally

unfair" to Neil to permit bonding evaluations at that juncture.

      Prior to the conclusion of the best interests hearing, defendants moved to

have the Pratts submit to bonding evaluations in anticipation of the guardianship

trial. The judge also denied these requests, stating, "I'm not going to allow any

evaluations of the [Pratts] at this time, subject to the ruling in this case."

Similarly, when the judge was repeatedly asked by the Division during the

course of the best interests hearing to allow the Pratts increased and overnight

visits, he consistently declined to alter the status quo. At one point in the

proceeding, he found the application "was not supported by the evidence thus

far." He also determined expanding visits at that time could impact Neil's ability

to speak and "have language" in his life.

      When the Division called Dr. Wells to testify, she acknowledged she had

recently withdrawn her support for placing Neil with the Pratts. Dr. Wells

confirmed she was informed the Pratts purportedly were unaware of Dr. Raia's

August 2019 appointment with Neil and were exercising visitation, so she

renewed her support for Neil's placement with the Pratts. She concluded they


                                                                            A-2772-19
                                       16
possessed "the cognitive capacity, the commitment, and the wherewithal to

attend to [Neil's] needs."     Further, she reiterated her position that Neil's

transition to the Pratts home would cause him only temporary harm, which the

Pratts could mitigate.

      Approximately two weeks before the hearing concluded, the Division

proffered an opinion by an expert audiologist and moved to add the expert, as

well as two fact witnesses to its witness list. The judge precluded the expert's

report, noting the Division's audiologist did not examine Neil, did not meet his

caregivers, and reviewed only certain unspecified records.        The judge also

concluded it would be unfair to Neil to allow the Division to produce an

unannounced expert so far into the proceeding. Similarly, the judge denied the

Division's request to add fact witnesses to its list, reminding counsel the hearing

started "months ago," it was delayed to accommodate the parties' needs, and he

was not prepared to "toss out any kind of discovery process and rules of court

to just start naming witnesses as we go along because our case isn't what we

thought it was when we started. That's not how it works."

      At the close of the hearing in December 2019, the Division represented

defendants were living in a New York shelter and were noncompliant with

services. For example, defendants failed to attend their individual therapy


                                                                             A-2772-19
                                       17
sessions and Jill missed all three substance abuse assessments scheduled in

November 2019. The Division's adoption specialist also testified Meg did not

attend bonding evaluations scheduled with defendants' expert and Neil, but Tom

had attended one such evaluation. Further, the specialist testified he informed

the Pratts about attending one of Neil's critical audiology appointments with Dr.

Raia, and he affirmed he had emphasized to them how important it was for them

to attend bonding evaluations with defendants' experts.

                                     V.

      When the hearing concluded, the judge determined it was in Neil's best

interests to remain with the Masons. He explained he was not persuaded the

Pratts fully understood the demands involved in caring for Neil , or that moving

Neil to their New York home would be in Neil's best interests, given that his

medical specialists were in New Jersey and "this [litigation] could go on for a

while because we could have an appeal of the [termination decision]." Referring

to Dr. Miller's testimony and crediting same, the judge found Neil would be

traumatized if moved to the Pratts' home, stating:

            Why would you take a child that . . . doesn’t speak,
            doesn’t have a bond, put [him] in a car, in a train, take
            [him] away from the people that are [his] psychological
            parents and leave [him]alone? That child cannot
            communicate in any way, can’t express . . . terror, . . .
            fear, . . . anxiety. Can’t ask to go home, can’t ask for

                                                                           A-2772-19
                                      18
            help, can’t say what’s going on, can’t understand
            anything that’s being said to him. Doctor Miller was
            absolutely right, why would you do that? It is
            terrifying, the thought of that.

      The judge further accepted Dr. Miller's testimony that removing Neil from

the Masons' home would trigger a "catastrophic loss" for the child. The judge

noted even Dr. Wells acknowledged Neil would suffer some harm if moved from

his existing home. Significantly, the judge also believed Dr. Raia's testimony

that trauma could cause Neil to regress, adding, "[w]hat the Division is asking

this court to do is potentially traumatize this child to the point where [he] will

regress, possibly lose the ability to have language in [his] life." The judge

perceived the Division's plan to remove Neil from the Masons and place him

with the Pratts as "a big gamble," given Neil's hearing issues, because the Pratts

"might not really understand everything that's involved." While the judge found

the Pratts "tried to educate themselves in some way," "they did not start any sign

language until recently. Mr. [Pratt] could not really show us any sign language

when he was here in court and testified." The judge also cited to "lots of

evidence in this case regarding the [Pratts] and their schedule and their ability

to make time," concluding, "I do believe that it would be difficult for them to

make all of [Neil's] appointments."



                                                                            A-2772-19
                                       19
      By comparison, considering the credible testimony provided by the

Masons and Dr. Raia, the judge found the Masons had a "comprehensive and

sufficient understanding of [Neil's] condition," provided "caring, consistent

treatment," for Neil, asked for "the best schools, . . . the best equipment" for

him, and ensured he received all necessary services. Further, the judge observed

that not counting "therapists and other people that are providing different types

of services," the Masons had attended ninety-one doctor's visits for Neil after he

was placed with them. Finding Neil "does get sick quite often," and courts

"routinely consider a child's medical condition when making decisions regarding

. . . placement," the judge concluded Neil should remain with the Masons.

Accordingly, he amended the permanency goal to include the termination of

defendants' parental rights, followed by adoption by the Masons.

                                     VI.

      Dr. Miller conducted two additional bonding evaluations prior to the

guardianship trial, one with defendants and the other with the Masons. He

opined Jill's parental capacity remained "severely compromised," and although

"recommended to receive [an] assessment for disability services, . . . [Jill]

asserted strongly . . . she would do nothing that was recommended by the

Division." The doctor noted Jill "continued to demonstrate significant parenting


                                                                            A-2772-19
                                       20
deficits due to longstanding and chronic abuse of PCP" and placing Neil in her

custody "would result in increasing and avoidable harm, risk to his safety, and

exposure to emotional neglect." He added Jill had not "demonstrated minimal

parental capacity and has delayed reunification." Regarding Lewis, Dr. Miller

found he was "noncompliant with services," "dependent on [the] use of PCP,"

and "unable to provide minimal parenting skills" to care for Neil.

      Dr. Miller concluded:

            Both adults spoke to [Neil] without making eye contact
            and appeared unable to use sign language in a way that
            [Neil] would respond. [Neil] vocalized minimally
            during the observation. Of some concern, both parents
            appear[ed] to laugh as [Neil] fell, suggesting lack of
            emotional responsiveness . . . .

            Finally, the record reflects significant efforts have been
            made by [the Division] to engage the biological parents
            in supervised visitation and supportive interactions
            with family friends during supervised visits. It remains
            concerning . . . neither parent has appeared to
            demonstrate sufficiently positive parenting skills from
            learning or support.

            It is apparent both parents continue to demonstrate
            significant parenting deficits for providing safety,
            minimal nurturance, empathic responses, or
            redirection. [Neil] will not experience harm or
            emotional reaction if separated from the biological
            parents by the court. He will not experience more harm
            than good if separated from the biological parents.



                                                                         A-2772-19
                                       21
      Conversely, following his bonding evaluation with the Masons, Dr. Miller

found Neil experienced "increasing vocalization in the presence of both resource

parents, who communicated with him with eye contact, sign language, and

reinforcing language based on his vocalizations." The doctor also determined

the Masons and Neil had a "strong positive emotional bond between [them]"

and separating Neil from his resource parents "would result in immediate and

enduring harm" to the child. He reported:

            It is in the best interest of [Neil] and the least
            detrimental alternative to remain in the home of the
            resource parents for the purpose of adoption if . . .
            ordered by the court. [Neil] will continue to overcome
            significant early challenges to his development,
            develop     further    resilience,   and     he    will
            emotionally/cognitively thrive in the home of the
            resource parents to achieve need permanency.

                                       VII.

      The guardianship trial commenced in January 2020 and concluded the

next month. When the trial began, the Division informed the court it would not

relitigate Neil's placement with the Masons. The judge advised counsel that

while he would not reopen the "best interest matters," given his recent placement

decision, he would not preclude defendants from addressing "reasonable efforts

issues" related to Neil's placement.



                                                                           A-2772-19
                                        22
      The Division called two witnesses at the guardianship trial, namely Dr.

Wells and its adoption specialist; the Law Guardian called Dr. Miller and Ann

to testify. Defendants did not present witnesses or documentary evidence at the

guardianship trial.    Ann and the Division's adoption specialist provided

testimony consistent with their testimony at the best interests hearing. Similarly,

Dr. Miller's testimony aligned with his report from his most recent bonding

evaluations. For example, he again testified if Neil were removed from the

Masons' home, "[i]t would be catastrophic to his development. He would lose

all of his gains . . . . And that would be a life-long problem that would never go

away."

      Likewise, Dr. Wells again opined neither defendant was able to assume

care for Neil "in the foreseeable future," explaining defendants' "lack of . . .

stable housing [and] their inability to manage their own lives independent of

assistance" led her to conclude returning Neil to either one of his parents' care

would create a risk of "grave and severe" harm. She testified Jill's cognitive

limitations were "not changeable" and Lewis' intellectual capacity was "not

subject to change."    Moreover, she opined if Neil were removed from the

Masons, he would experience "a sense of bewilderment, confusion." She opined

Neil considered his resource parents his "psychological parents" given their


                                                                             A-2772-19
                                       23
"continuity of care . . . and because of how they've responded to his needs."

Regarding defendants' ability to mitigate any loss Neil would experience if

removed from the Masons' custody, Dr. Wells believed defendants would

"engage in some sort of minimization of that loss."

                                      VIII.

      On February 21, 2020, the trial judge issued a thoughtful and

comprehensive thirty-page opinion, finding the Division met its statutory burden

for termination under N.J.S.A. 30:4C-15.1(a). In support of his termination

decision, the judge painstakingly reviewed the factual and procedural

background of this matter, the results of various evaluations, and the testimony

adduced at the best interests hearing, as well as the guardianship trial.

      Preliminarily, the judge stated, "the court's rationale in deciding the best

interest hearing [was] important to understanding the court's decision to

terminate [defendants'] parental rights." He noted he granted the request for a

best interest hearing based on the representation of counsel that "there would be

two reasonably plausible placement plans." After hearing expert testimony at

the best interests hearing, the judge found "the competing placements were not

equally reasonably plausible," and in fact, "the Division's placement plan

[involving the Pratts] was simply put, implausible." The judge concluded what


                                                                            A-2772-19
                                       24
"the Division was essentially asking the court to do was to potentially traumatize

the child in order to try to forge or increase a bond with non-relatives, which

would cause [Neil] to regress and potentially lose his language ability," whereas

"there was clear and consistent evidence that the [Masons] are providing [Neil]

with what he needs to continue to thrive . . . . The child is placed exactly where

he needs to be."

      Next, the judge outlined how the Division established, by clear and

convincing evidence, each of the four prongs of the best interest standard under

N.J.S.A. 30:4C-15.1. After assessing each prong and concluding the Division

carried its burden, the judge terminated defendants' parental rights.

                                     IX.

      On appeal, defendants argue the trial court erred in finding the Division

satisfied the four-pronged best interests test under N.J.S.A. 30:4C-15.1(a).

Further, Jill contends: (1) the best interests hearing "did not afford [her] due

process on the need for an expert audiologist"; (2) the trial court erred in

rejecting the Division's permanency plan after denying expanded visits for the

Pratts and a defense bonding evaluation, thereby depriving defendants of "an

adequate opportunity to present" evidence about whether the Division's plan was

in Neil's best interests; (3) the placement decision at the conclusion of the best


                                                                            A-2772-19
                                       25
interests hearing "failed to give due regard to [defendants'] choice of care

providers and sibling rights, and was not objectively reasonable"; and (4) the

Division "should be judicially estopped from seeking termination" of her

parental rights because she was prejudiced at the guardianship trial by the

Division's "inconsistent positions."

      In addition to contending the Division failed to satisfy its burden under

N.J.S.A. 30:4C-15.1(a), Lewis argues the trial court erred by approving a

permanency plan that included adoption by resource parents when there were

"candidates for adoption who were already approved, and willing to adopt."

      We have considered these contentions and conclude they are

unpersuasive. We add the following comments.

      When a trial court is confronted with two "reasonably plausible"

placement plans, "[n]either of the proposed plans is entitled to a presumption of

correctness. The court is to receive testimony, evidence and information from

all relevant sources pertaining to [the child's] best interests and determine a

permanency plan that ensures [his or] her safety and health and serves [his or]

her best interests." In re C.R., 

364 N.J. Super. 263

, 283 (App. Div. 2003). Upon

appellate review, findings by the trial judge are considered binding "when

supported by adequate, substantial and credible evidence." Rova Farms Resort,


                                                                           A-2772-19
                                       26
Inc. v. Inv. Ins. Co. of Am., 

65 N.J. 474

, 484 (1974). In particular, "[b]ecause

of the family courts' special jurisdiction and expertise in family matters,

appellate courts should accord deference to family court factfinding." Cesare v.

Cesare, 

154 N.J. 394

, 413 (1998).

      Here, the record contains overwhelming credible evidence to support the

trial court's finding it was in Neil's best interest to continue his placement with

the Masons. As we have noted, following several trial days and after considering

the testimony of multiple witnesses, including the divergent opinions of Drs.

Wells and Miller, the judge credited Dr. Miller's testimony over that of Dr. Wells

when opting to place Neil with the Masons rather than the Pratts.

      The trial court has the authority to weigh and evaluate expert testimony.

N.J. Div. of Youth & Fam. Servs. v. J.S., 

433 N.J. Super. 69

, 93 (App. Div.

2013). The weight afforded an expert's opinion is entirely within the court's

discretion and we are satisfied that discretion was not abused here. See Cnty.

of Middlesex v. Clearwater Vill., Inc., 

163 N.J. Super. 166

, 173-74 (App. Div.

1978). Our conclusion is bolstered by the fact Drs. Miller and Wells did not

dispute the Masons provided exceptional care for Neil and ensured his daily

physical, emotional and medical needs were met.




                                                                             A-2772-19
                                       27
      To the extent defendants contend the trial court erred in "approving a

permanency plan that included adoption by the resource parents" when there

were "kinship candidates" preferred by defendants, we disagree. KLG is only

available when adoption is "neither feasible nor likely." N.J. Div. of Youth &

Fam. Servs. v. P.P., 

180 N.J. 494

, 513 (2004). It cannot be used as a defense to

termination of parental rights. 

Ibid.

 Here, the Masons consistently confirmed

they wished to adopt Neil. Additionally, regardless of defendants' preference to

have Neil placed with the Pratts rather than the Masons, the trial court was not

obliged to defer to their preference. Even if the judge found the Pratts were

defendants' relatives, which he did not, "there is no presumption favoring the

placement of a child with such relatives." J.S., 433 N.J. Super. at 82. "Rather,

'a presumption of custody only exists in favor of a natural parent as opposed to

placement with relatives or foster parents.'" Ibid. (quoting N.J. Div. of Youth

& Fam. Servs. v. M.F., 

357 N.J. Super. 515

, 527 n.3 (App. Div. 2003)).

Moreover, a trial court's paramount consideration is the selection of a placement

plan that best serves a child's interests. In re C.R., 

364 N.J. Super. at 283

.

      Regarding Jill's argument her due process rights were violated based on a

lack of notice that an opinion from an expert audiologist was warranted, we are

not persuaded. The record reflects Neil's medical needs, and the ability of any


                                                                             A-2772-19
                                       28
proposed caregiver to meet those needs, including those related to his hearing

loss, were central to this litigation. Further, the multiple evaluations conducted

throughout this litigation confirmed as much. Moreover, the record reflects the

Law Guardian included Dr. Raia on her witness list roughly two months prior to

the best interests hearing. Additionally, all parties knew months in advance

when the best interests hearing was due to occur, and at defendants' request, the

best interests hearing was postponed from August 20, 2019 to October 1, 2019

to provide defendants additional time to prepare for the hearing. Importantly,

defendants also were advised in August 2019 that Dr. Raia would be testifying

when the hearing commenced on October 1, 2019. Under these circumstances,

we are not convinced defendants were denied due process.

      We also decline to find the judge abused his discretion in precluding the

Division from introducing a letter from an audiologist and adding the expert to

its witness list after the hearing was well underway. The judge characterized

the audiologist's letter as a "net opinion" which "doesn't weigh as much as the

paper it's on. It's a doctor saying, if the patient does everything they're supposed

to do, they'll be fine." The judge reasoned the Division's audiologist had not

reviewed Dr. Raia's records, and noted the expert "has not even met with this

child . . . . [and] has not examined this child. He has not met with the resource


                                                                              A-2772-19
                                        29
parents. He's not met with . . . the [Pratts]. So it's obviously a net opinion."

Moreover, the judge determined the Division was attempting to serve a "one-

page, three sentence opinion expert report" "way too late." Further, he again

expressed concern about "delaying [Neil's] permanency."

      Evidentiary rulings are reviewed under an abuse of discretion standard.

N.J. Div. of Child Prot. & Permanency v. K.G., 

445 N.J. Super. 324

, 342 (App.

Div. 2016). "Absent a manifest denial of justice, we do not disturb a trial judge's

reasoned exercise of his or her broad discretion when making relevance and

admissibility determinations." N.J. Div. of Youth & Fam. Servs. v. N.S., 

412

N.J. Super. 593

, 622 (App. Div. 2010) (citing Lancos v. Silverman, 

400 N.J.

Super. 258

, 275 (App. Div. 2008)).          Further, while parties generally are

permitted to present expert witnesses, a "trial judge's discretion in excluding

evidence is broad." Ratner v. Gen. Motors Corp., 

241 N.J. Super. 197

, 202 (App.

Div. 1990). "The decision as to exclusion must stand unless so wide of the mark

that a manifest denial of justice resulted." 

Ibid.

 No such manifest denial of

justice occurred here. Thus, we perceive no basis to disturb the judge's decision

to exclude the testimony and late report from the Division's audiologist.

      Regarding defendants' contention their requests for bonding evaluations

were improperly denied, we are convinced this argument is belied by the record.


                                                                             A-2772-19
                                       30
Although defendants were informed in May 2019 that the best interests hearing

would proceed on August 20, 2019, they failed to timely obtain bonding

evaluations between Neil and the Pratts. Thereafter, the judge granted their

request for additional time to secure bonding evaluations. Although the hearing

was postponed for several more weeks, defendants complained they encountered

scheduling issues for the bonding evaluations.            Given Neil's need for

permanency, the judge made clear he did not wish to further delay the hearing,

but left open the possibility for defendants to introduce a late expert's report.

We decline to second-guess the judge's discretionary decision in this regard.

         Likewise, we are not offended by the judge's response to defendants'

belated request to obtain bonding evaluations for the Pratts for use in the

guardianship trial. The record reflects the judge did not reject the request for

the evaluations out of hand. Rather, he simply stated he would not "allow any

evaluations of the [Pratts] at this time, subject to the ruling in this [placement]

case."

         Defendants also argue the trial court erred by refusing to grant the Pratts

overnight or extended daytime visits prior to rendering a decision about Neil's

placement. Again, we disagree. The judge had no obligation to grant visits to

"create a psychological bond or increase a psychological bond" with the Pratts


                                                                              A-2772-19
                                         31
at the cost of Neil's wellbeing, particularly since he was thriving in the Mason's

home. See In re of Guardianship of S.C., 

246 N.J. Super. 414

, 426 (App. Div.

1991).

                                      X.

      Finally, we consider defendants' contention the Division failed to prove

the four prongs of the "best interests of the child" test under N.J.S.A. 30:4C -

15.1(a). Once again, we are not convinced.

      In reviewing a decision to terminate parental rights, we recognize our

scope of review of the trial court's factual findings is limited. N.J. Div. of Youth

& Fam. Servs. v. L.J.D., 

428 N.J. Super. 451

, 476 (App. Div. 2012). "A Family

Part's decision to terminate parental rights will not be disturbed when there is

substantial credible evidence in the record to support the court's findings." N.J.

Div. of Child Prot. & Permanency v. K.T.D., 

439 N.J. Super. 363

, 368 (App.

Div. 2015).    We owe deference to the trial judge's evaluation of witness

credibility, N.J. Div. of Youth & Fam. Servs. v. F.M., 

211 N.J. 430

, 446 (2012),

and review a trial judge's evidentiary rulings for an abuse of discretion , K.G.,

445 N.J. Super. at 342 (citing State v. J.A.C., 

210 N.J. 281

, 295 (2012)). On the

other hand, we review a trial court's legal interpretations de novo. N.J. Div. of

Youth & Fam. Servs. v. R.G., 

217 N.J. 527

, 552 (2014).


                                                                              A-2772-19
                                        32
      Parents have a "constitutional right 'to raise [their] child and maintain a

relationship with that child, without undue interference by the state.'" N.J. Div.

of Child Prot. & Permanency v. S.D., 

453 N.J. Super. 511

, 518 (App. Div. 2018)

(quoting N.J. Div. of Youth & Fam. Servs. v. A.L., 

213 N.J. 1

, 18 (2013)).

However, parental rights are not absolute. In re Guardianship of K.H.O., 

161

N.J. 337

, 347 (1999). They are balanced against the State's responsibility to

protect the welfare of children, and courts use the best interests of the child

standard to balance these interests. 

Ibid.

 (citing In re Guardianship of J.C., 

129

N.J. 1

, 10 (1992)).

      A court may terminate parental rights only if the Division proves, by clear

and convincing evidence, the four prongs of the "best interest" test. N.J. Div.

of Youth & Fam. Servs. v. A.W., 

103 N.J. 591

, 604-11 (1986). Specifically, the

Division must show by clear and convincing evidence that:

            (1) The child's safety, health or development has been
            or will continue to be endangered by the parental
            relationship;

            (2) The parent is unwilling or unable to eliminate the
            harm facing the child or is unable or unwilling to
            provide a safe and stable home for the child and the
            delay of permanent placement will add to the harm.
            Such harm may include evidence that separating the
            child from his resource family parents would cause
            serious and enduring emotional or psychological harm
            to the child;

                                                                            A-2772-19
                                       33
            (3) The division 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 considerations involved in applying the best interest test are "extremely fact

sensitive and require particularized evidence" addressing the specific

circumstances of the case. M.M., 189 N.J. at 280 (quoting N.J. Div. of Youth

& Fam. Servs. v. R.L., 

388 N.J. Super. 81

, 88 (App. Div. 2005)). The four

prongs "are not discrete and separate; they relate to and overlap with one another

to provide a comprehensive standard that identifies a child's best interests."

K.H.O., 

161 N.J. at 348

.

      Under prong one, "the [Division must] demonstrate harm to the child by

the parent," such as "the endangerment of the child's health and development

resulting from the parental relationship." 

Ibid.

 The focus is not on a "single or

isolated harm." 

Ibid.

 Prong one "addresses the risk of future harm to the child

. . . . " N.J. Div. of Youth & Fam. Servs. v. H.R., 

431 N.J. Super. 212

, 222 (App.

Div. 2013). "Courts need not wait to act until a child is actually irreparably



                                                                            A-2772-19
                                        34
impaired by parental inattention or neglect." In re Guardianship of D.M.H., 

161

N.J. 365

, 383 (1999).

      Under prong two, the Division must show a parent is unable or unwilling

to correct the circumstances that led to the Division's involvement. K.H.O., 161

N.J. at 348-49. "The question is whether the parent can become fit in time to

meet the needs of the child." N.J. Div. of Youth & Fam. Servs. v. T.S., 

417 N.J.

Super. 228

, 244 (App. Div. 2010). Additionally, the Division may prove prong

two by establishing "that the parent is unable to provide a safe and stable home

for the child and that the delay in securing permanency continues or adds to the

child's harm." K.H.O., 161 N.J. at 348-49.

      Under prong three, the Division must show it made reasonable efforts to

provide services and considered alternatives to termination of parental rights.

N.J.S.A. 30:4C-15.1(a)(3). Reasonable efforts include:

            (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 of the
            child's progress, development, and health; and

            (4) facilitating appropriate visitation.


                                                                          A-2772-19
                                       35
            [N.J. Div. of Child Prot. & Permanency v. T.D., 

454
N.J. Super. 353

, 382 (App. Div. 2018) (citing N.J.S.A.
            30:4C-15.1(c)).]

      In analyzing this prong, the Division's "efforts to provide services '[are]

not measured by their success.'" N.J. Div. of Youth & Fam. Servs. v. A.R., 

405

N.J. Super. 418

, 441 (App. Div. 2009) (quoting D.M.H., 161 N.J. at 393). The

reasonableness of these efforts is evaluated on a case-by-case basis.          Ibid.

Where the Division has exerted efforts such as seeking out relatives to care for

the children, supporting the parent in maintaining a relationship with the

children, supervising visitation, and sending a parent to therapy and treatment

programs, the third prong is satisfied, despite the parent's failure to rehabilitate

him or herself. See K.H.O., 161 N.J. at 354.

      Under prong four, the Division must prove the termination of parental

rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). To evaluate

whether the Division met this criterion, the court weighs the harm that a child

might suffer from the termination of parental rights against any harm stemming

from the removal from the resource placement. K.H.O., 161 N.J. at 355. It does

not require a showing that a child will suffer no harm as a result of severing a

child's relationship with the child's biological parents. Ibid. The question is

"whether, after considering and balancing the two relationships, the child will


                                                                              A-2772-19
                                        36
suffer a greater harm from the termination of ties with [his] natural parents than

from permanent disruption of [his] relationship with [his] foster parents." N.J.

Div. of Youth & Fam. Servs. v. I.S., 

202 N.J. 145

, 181 (2010) (quoting In re

Guardianship of J.N.H., 

172 N.J. 440

, 478 (2002)).

      Here, it is clear the judge's detailed findings regarding prongs one and two

were tethered to substantial competent, credible evidence, including expert

testimony, which overwhelmingly demonstrated defendants had endangered and

would continue to endanger Neil, as they continued to use PCP, were homeless,

and noncompliant with services.

      Additionally, we discern no error in the judge's finding the Division met

prong three considering its "reasonable efforts" to reunify defendants with Neil

and its assessment of alternatives to termination.      The record reflects the

Division provided defendants with transportation, supervised visits, urine

screens, substance abuse evaluations, and psychological and bonding

evaluations, and considered placement with the Pratts once a series of

evaluations confirmed defendants could not and would not be able to care for

Neil for the foreseeable future.

      Regarding prong three, the Division and Law Guardian contend

defendants now raise the novel argument there was no evidence the Division


                                                                            A-2772-19
                                       37
provided services to them to address their cognitive limitations, and Jill newly

argues the lack of such services violated the Americans with Disabilities Act

(ADA), 42 U.S.C. § 12101. Jill counters that she raised the issue of reasonable

accommodations before the trial court, and points to a brief statement her

counsel made in his closing argument.

      Our review of the record reveals neither defendant discussed the ADA or

how it related to prong three at closing argument. Instead, in summation, Jill's

counsel merely stated, "the issue as we presented to Your Honor is whether these

parents can safely parent [Neil] now with a reasonable accommodation given to

them." To the extent this passing comment can be construed as raising an ADA

argument, we are not convinced the argument has merit. The Division provided

numerous services to defendants to assist defendants in overcoming their

disabilities. Nonetheless, the trial court accepted Dr. Wells' testimony that

defendants' cognitive limitations would not change and they would "never be

able to parent independently." He added, "[n]o amount of time can change that.

No services or therapy can change that."      Additionally, the record reflects

defendants were noncompliant with services offered, and their ongoing struggles

with substance abuse and homelessness impacted their ability to parent.

Moreover, as we have stated, allowing "the provisions of the ADA to constitute


                                                                          A-2772-19
                                      38
a defense to a termination proceeding would improperly elevate" the parent's

rights above the child. N.J. Div. of Youth & Fam. Servs. v. A.G., 

344 N.J.

Super. 418

, 442 (App. Div. 2001).

      Finally, regarding prong four, the judge relied on Dr. Miller's testimony

and the results of the expert's comparative bonding evaluations to find Neil had

a strong, secure bond with the Masons, the child lacked an emotional bond with

his parents, and termination of defendants' parental rights would not do more

harm than good. We discern no error in this regard.

      Because we perceive no basis to disturb the judge's factual findings, his

legal determination that the Division satisfied its burden under N.J.S.A. 30:4C-

15.1(a) is unassailable. To the extent we have not specifically addressed any of

defendants' remaining arguments, we are satisfied they are without sufficient

merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                          A-2772-19
                                      39

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