DCPP VS. M.S. AND T.C., IN THE MATTER OF THE GUARDIANSHIP OF A.C. (FG-09-0240-19, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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                                NOT FOR PUBLICATION WITHOUT THE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 NO. A-1373-19

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

M.S.,

          Defendant-Appellant,

and

T.C.,

     Defendant.
________________________

IN THE MATTER OF THE
GUARDIANSHIP OF A.C.,
a minor.
________________________

                   Argued February 24, 2021 – Decided March 25, 2021

                   Before Judges Fuentes, Rose, and Firko.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Hudson County,
            Docket No. FG-09-0240-19.

            Ryan T. Clark, Designated Counsel, argued the cause
            for appellant (Joseph E. Krakora, Public Defender,
            attorney; Robyn A. Veasey, Deputy Public Defender,
            of counsel; Ryan T. Clark, on the briefs).

            Julie B. Colonna, Deputy Attorney General, argued the
            cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Jane C. Schuster, Assistant Attorney
            General, of counsel; Julie B. Colonna, on the brief).

            Rachel E. Seidman, Assistant Deputy Public Defender,
            argued the cause for minor (Joseph E. Krakora, Public
            Defender, attorney; Meredith Alexis Pollock, Deputy
            Public Defender, of counsel; Rachel E. Seidman, of
            counsel and on the brief).

PER CURIAM

      Defendant M.S.,1 the biological mother of "Amy," a girl born in August

2011, appeals from the order of the Family Part terminating her parental rights.

Although the judge also terminated the parental rights of Amy's biological

father, T.C., he did not appeal. M.S. contends the Division did not demonstrate

by clear and convincing evidence the four prongs of N.J.S.A. 30:4C-15.1(a).

The law guardian supports termination and urges us to affirm the trial judge.


1
  The parties and other individuals are identified by initials and pseudonyms
because records relating to Division of Child Protection and Permanency
(Division) proceedings "are excluded from public access." R. 1:38-3(d)(12).
                                                                          A-1373-19
                                       2
Having reviewed the record in light of the contentions of the parties and the

applicable law, we affirm.

                                       I.

      The record shows Amy was born with significant medical issues,

including underdeveloped lungs, and was diagnosed with respiratory distress

and failure to thrive. At birth, she underwent surgery to repair a heart valve,

and suffered complications when the surgeon lacerated her phrenic nerve. As a

result, she required a tracheostomy tube, feeding tube, and nursing care sixteen

hours per day.     Amy experienced global developmental delays and was

diagnosed   with   DiGeorge     Syndrome, 2   asthma,   and   Attention-Deficit

Hyperactivity Disorder. She received speech therapy.




2
  "DiGeorge syndrome, more accurately known by a broader term—22q11.2
deletion syndrome—is a disorder caused when a small part of chromosome 22
is missing. This deletion results in the poor development of several body
systems." DiGeorge Syndrome (22q11.2 deletion syndrome), Mayo Clinic,
https://www.mayoclinic.org/diseases-conditions/digeorge-syndrome/
symptoms-causes/syc-20353543 (last visited Mar. 3, 2021). "Medical problems
commonly associated with 22q11.2 deletion syndrome include heart defects,
poor immune system function, a cleft palate, complications related to low levels
of calcium in the blood, and delayed development with behavioral and emotional
problems."

Ibid. “The number and

severity of symptoms associated with
22q11.2 deletion syndrome vary. However, almost everyone with this syndrome
needs treatment from specialists in a variety of fields."

Ibid.

A-1373-19
3
In

August 2013, Amy's nursing agency made a referral to the Division

hotline alleging M.S. did not respond to attempts to contact her, faced eviction

from her apartment, and was not home on several occasions when the nurse's

shift ended. M.S. reported she was evicted after her social services assistance

ended, and she planned to temporarily live with her mother. Because M.S. had

attended Amy's medical appointments with multiple specialists, she was unable

to comply with the work program requirements.           M.S. also advised the

caseworker that two years earlier, T.C. punched her, but she declined to press

charges.

      On September 10, 2013, M.S. informed the Division that her parents'

apartment was infested with bed bugs. The Division gave the family a $150

check to wash clothing and linens. On January 24, 2014, M.S. informed the

Division that she was about to be evicted from the apartment she was renting for

non-payment of rent, and that she was unemployed. In response, the Division

paid $850 towards M.S.'s rent, provided her with a list of community housing

resources, and referred her to Family Life Skills to assist with parenting skills

and employment searches.

      On August 27, 2014, M.S. was evicted from her apartment, and some of

Amy's medical equipment was left behind. Another referral was made to the


                                                                           A-1373-19
                                       4
Division by the nursing agency, which increased its services from sixteen hours

per day to twenty-four hours per day because of its concerns regarding M.S.'s

care of Amy. On September 2, 2014, M.S. signed a safety protection plan,

agreeing to round-the-clock nursing care for Amy. Because of the need for M.S.

to consistently attend Amy's medical appointments, the Division arranged for

transportation for M.S. to attend subsequent appointments for Amy.

      On September 15, 2014, the Division received a referral that T.C., who

was incarcerated for selling drugs, had been released and moved into his mother,

K.C.'s home. Following an argument with T.C., M.S. left for the weekend,

leaving Amy in the care of T.C., K.C., and the nursing staff. That day, the

Division conducted an emergency removal pursuant to the Dodd Act 3 and placed

Amy with D.J., an unrelated foster parent. On September 17, 2014, a prior judge

found that the Division's removal of Amy was appropriate but ordered her

returned to M.S.'s custody. The judge ordered M.S. to allow the Division and

nursing agency access to the home and prohibited M.S. from leaving Amy alone

in the nurse's care.




3
  A "Dodd removal" is an emergency removal of a child from the custody of a
parent without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd
Act, N.J.S.A. 9:6-8.21 to -8.82
                                                                          A-1373-19
                                       5
      In the Fall of 2014, the Division referred M.S. for a substance abuse

assessment due to her alleged alcohol use, to undergo a psychological

evaluation, and to search for employment. On December 3, 2014, M.S. advised

the Division she got into an argument with T.C., and R.G., who was K.C.'s

paramour, punched M.S. in the face. The Division placed M.S. and Amy in a

motel for two months, provided a security deposit, and one month's rent.

      On January 6, 2015, Dr. Gerald A. Figurelli evaluated M.S., who opined

that she required mental health treatment, lacked an adequate understanding of

children's developmental needs, and was at risk of engaging in child

maltreatment if she did not receive support. Dr. Figurelli recommended drug

testing to confirm her denial of use, domestic violence counseling, assistance

with job training, and parenting skills classes.

      At the March 15, 2018 permanency hearing, the judge ordered M.S. to

participate in substance abuse treatment, submit to random urine screens, attend

Amy's medical appointments, and cooperate with Amy's nursing services. The

judge also ordered the Division to refer M.S. to legal services to explore filing

a medical malpractice lawsuit against Amy's surgeon relating to her procedure

at birth. At oral argument before this court, counsel was unsure of the status of

the referral, and the law guardian was requested to follow up.


                                                                           A-1373-19
                                         6
        In July 2015, M.S. moved into a new apartment with Amy, with Section

8 assistance, and the Division paid her security deposit. In September, M.S.

failed to pay her portion of the rent. M.S. also failed to make an appointment

for Amy with an ear, nose, and throat specialist as discussed, but did enroll her

in school. In November 2015, M.S. and Amy were evicted, and M.S. did not

have a plan as to where they would live. M.S. and Amy moved in with M.S.'s

parents, F.S. and A.S., and the Division and caseworker had to retrieve Amy's

medical equipment and belongings and bring them to the grandparents' house.

By December 2015, M.S. often stayed with friends during the week and returned

to the home occasionally, prompting another referral to the Division by Amy's

nurses. The Division prepared a family agreement, signed by M.S. and the

maternal grandparents, authorizing Amy to receive twenty-four-hour nursing

care.

        On January 26, 2016, the Division filed a complaint for custody of Amy.

The judge granted the Division's application based on M.S.'s noncompliance

with treatment for Amy's care, her unavailability during medical emergencies,

and lack of stable housing. The Division ruled out the maternal grandparents,

F.S. and A.S., as a family placement because of their noncompliance with

nursing staff and alleged inability to understand Amy's medical needs. K.C. and


                                                                           A-1373-19
                                        7
R.G. were also ruled out due to their history of domestic violence and R.G.'s

criminal conviction for a controlled dangerous substance, along with his refusal

to undergo a substance abuse evaluation. Amy's maternal uncle was also ruled

out. Consequently, the Division placed Amy in the home of a non-relative

resource parent, D.P., which was not a pre-adoptive home, but could

accommodate Amy's nursing assistance.

      In addition, the Division referred M.S. for the following services: a

substance abuse assessment; domestic violence counseling; individual and

couples counseling; and an updated psychological evaluation. On March 3,

2016, M.S. completed a substance abuse assessment and tested negative for all

substances.

      Amy's preschool classified her for special education due to her medical

condition and provided her and her nurses with transportation as part of an

Individualized Education Plan (IEP). During this time, M.S. had consistent

weekly, supervised visits with Amy arranged by the Division. On March 9,

2016, Dr. Figurelli completed a second psychological evaluation of M.S. and

again opined she did not have a psychiatric illness that required formal mental

health treatment. He reported, however, that she was "not yet prepared to

independently provide consistently responsible, safe, and stable parenting to her


                                                                           A-1373-19
                                       8
child." Dr. Figurelli recommended that M.S. be reassessed when she secured

stable living arrangements, adequate financial support, and participated in

services.

      Between June and September 2016, M.S. failed to attend three

appointments scheduled by the Division for a substance abuse evaluation. On

July 19, 2016, she provided a urine sample, which tested positive for oxycodone

and alcohol.     On July 25, 2016, Amy underwent surgery to remove her

tracheostomy tube. The caseworker transported M.S. to the hospital for the

procedure.     The Division was notified that M.S. and T.C. missed thirteen

counseling appointments and the provider closed its case.

      During the latter half of 2016, M.S. only visited Amy sporadically and

cancelled several family team meetings and other appointments. On January 6,

2017, the Division received a referral from a hospital employee alleging that

M.S. was treated in the emergency room for a skin abscess and admitting to

drinking alcohol daily. M.S. later denied drinking daily to the caseworker but

tested positive for alcohol on February 8, 2017. She began working part-time at

Walmart and later as a hairdresser.

      Amy's health improved, and by February 2017, the nursing agency

reduced her care from twenty-four hours per day to sixteen hours. M.S. missed


                                                                         A-1373-19
                                      9
several of Amy's medical appointments and did not contact any of her doctors

to discuss her care. In July 2017, M.S. experienced pancreatitis due to alcohol

use. She did not seek reunification with Amy at that time.

      On November 15, 2017, Dr. Figurelli evaluated M.S. for a third time and

reached the same assessment and recommendations espoused in his two previous

reports. In addition, Dr. Figurelli recommended M.S. participate in a substance

abuse evaluation to ascertain whether or not she was experiencing a

psychoactive substance abuse disorder that required formal treatment.

      In the judge's January 2018 decision denying the Division's guardianship

application, the judge found the Division proved the first three prongs of the

best-interest-of-the-child test. However, the judge found the Division failed to

meet the fourth prong because Amy had a relationship with M.S., T.C., and

relatives. In addition, the judge found M.S. began services and was not at risk

for engaging in child maltreatment; the only significant concern was her lack of

stable housing. The judge also noted that Amy was not in a resource home that

was willing to adopt her.

      At the permanency hearing held on March 15, 2018, the judge ordered

defendant to participate in substance abuse treatment, submit to random urine

screens, attend individual counseling, attend Amy's medical appointments, and


                                                                          A-1373-19
                                      10
cooperate with her nursing services so M.S. could better understand her

daughter's medical needs. M.S. continued to miss domestic violence counseling

sessions, individual counseling and parenting classes, and ceased attending these

services altogether in July 2018. M.S. also missed two of Amy's doctor's

appointments and her IEP meeting. Further, M.S. failed to submit to court-

ordered random drug screens, a hair follicle test, and a substance abuse

assessment.

      In May 2018, the Division began assessing Mary, Amy's former nurse,

and Aaron, her husband, as a potential resource placement. They were open to

adopting Amy. In June 2018, Amy was able to discontinue using her feeding

tube. M.S. continued to resist applying for Section 8 housing and inconsistently

attended Amy's medical appointments. The Division provided M.S. with a

prepaid cell phone and offered her transportation. On December 18, 2018, the

Division placed Amy in the home of Mary and Aaron, which remained a pre-

adoptive home.

      A foster child (Robert), six years old at the time, who was a victim of

sexual abuse by other children, lived in Mary and Aaron's home. Shortly after

the Division placed Amy in the home, Robert pulled down her pants, but not her

underwear, while the two danced, because he wanted to see her buttocks.


                                                                           A-1373-19
                                      11
Consequently, the Division implemented a family agreement, which provided

that Mary and Aaron would supervise the children at all times they were together

and referred both children to in-home counseling.

      In approving the Division's plan of termination of parental rights,

followed by adoption, at the January 31, 2019 permanency hearing, the judge

noted that M.S. failed to comply with services, including an updated

psychological evaluation, counseling, and random urine screens. The judge also

found the Division made reasonable efforts to reunify Amy with M.S.

Thereafter, the Division continued to refer M.S. for parenting classes at the

Urban League and counseling services, which she continued to miss. M.S. also

failed to attend two appointments for hair follicle testing and five drug screens.

She also continued to miss visits with Amy and eight appointments for bonding

evaluations.

      In March 2019, Robert experienced an hour-long behavioral outburst in

which he threatened Mary. The Division arranged for him to participate in

therapy at Audrey Hepburn's Children's House (AHCH) and to continue the

trauma therapy he received as a sexual abuse victim.

      At the guardianship trial before another judge, the Division presented

testimony from the adoption caseworker, Miriam Attia, and Dr. Figurelli. Attia


                                                                            A-1373-19
                                       12
testified that M.S. did not respond to her attempts to contact her after July 2019

and verified that M.S. failed to complete court-ordered services. In January

2019, Attia stated that Amy's cardiologist cleared her to play sports, and her

medical appointments were reduced to about two per month. According to Attia,

by the time of trial, none of Robert's treating professionals at AHCH had

recommended his contact with Amy be supervised or stated that he posed a risk

of perpetrating future acts against her. Attia confirmed that Mary and Aaron

wished to adopt Amy.

      The judge qualified Dr. Figurelli as an expert in psychology and substance

abuse treatment after counsel stipulated to his expertise.      He testified that

because M.S. did not attend a psychological evaluation since November 2017,

he was unable to render an opinion as to her current parenting ability. Dr.

Figurelli expressed his concern about M.S.'s "instability" because of her

inability to maintain stable housing or employment. He also opined that M.S.

failed to visit Amy or participate in her medical appointments especially in light

of her special needs. By failing to attend services recommended, Dr. Figurelli

highlighted that M.S. minimized issues of domestic violence.

      As to the incident involving Amy and Robert, Dr. Figurelli testified his

opinion as to Mary and Aaron would not change because he had no indication


                                                                            A-1373-19
                                       13
they were incapable of providing the required level of supervision. Dr. Figurelli

emphasized it was "critical" for Amy to achieve permanency as soon as possible

and "it would [not] make any sense" to further delay permanency because M.S.

was unlikely to be able to safely parent in the foreseeable future. Delaying

permanency was "not a viable situation for" Amy.

      With respect to the bonding evaluations he conducted, Dr. Figurelli

concluded that Mary and Aaron were Amy's psychological parents, she

identified them as "her family," and that they provided her with a "sense of

family connectedness." He believed Amy had a "strong and significant" bond

with them and would endure "a traumatic emotional loss," which would be

"severe and enduring" if she were to lose her relationship with them.

      M.S. testified on her own behalf and described the "very good

relationship" she had with Amy. At the time of trial, M.S. testified she was not

working and lived with her parents but planned to obtain employment and

Section 8 housing after her five-year suspension ended because she missed

payment of one month's rent. In April 2019, M.S. testified she underwent a

splenectomy, "almost died," was hospitalized for three weeks, and was unable

to walk for two months thereafter. According to M.S., these were the reasons

she missed visits with Amy and did not sign the Division's release form for her


                                                                           A-1373-19
                                      14
medical records. M.S. acknowledged she did not complete counseling and had

not stayed in contact with the caseworker.

      The law guardian did not present any witnesses or evidence but supported

the Division's application for guardianship of Amy. On November 14, 2019, the

judge entered an order terminating M.S. and T.C.'s rights to Amy. He issued a

comprehensive written opinion in support of the order. This appeal followed.

                                        II.

      "The scope of appellate review of a trial court's fact-finding function is

limited." Cesare v. Cesare, 

154 N.J. 394

, 411 (1998). In general, a trial court's

findings "are binding on appeal when supported by adequate, substantial,

credible evidence."

Id. at 412

(citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co.

of Am., 

65 N.J. 474

, 484 (1974)). "Particular deference is afforded to family

court fact-finding because of the family courts' special jurisdiction and expertise

in family matters." N.J. Div. of Child Prot. & Permanency v. N.C.M., 438 N.J.

Super. 356, 367 (App. Div. 2014) (citing 

Cesare, 154 N.J. at 413

). "We will not

overturn a family court's factfindings unless they are so 'wide of the mark' that

our intervention is necessary to correct an injustice." N.J. Div. of Youth &

Family Servs. v. F.M., 

211 N.J. 420

, 448 (2012) (quoting N.J. Div. of Youth &

Family Servs. v. E.P., 

196 N.J. 88

, 104 (2008)).


                                                                             A-1373-19
                                       15
      To terminate parental rights on the grounds of the "best interests of the

child," the Division must prove, by clear and convincing evidence, the following

four prongs under N.J.S.A. 30:4C-15.1(a):

            (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;

            (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); see also N.J. Div. of Youth &
            Family Servs. v. A.W., 

103 N.J. 591

, 604-11 (1986)
            (reciting the four standards later codified in Title 30).]

      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




                                                                          A-1373-19
                                       16
interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.

Super. 235, 258 (App. Div. 2005).

      Under prong one, the Division must demonstrate harm "that threatens the

child's health and will likely have continuing deleterious effects on the child."

In re Guardianship of K.H.O., 

161 N.J. 337

, 352 (1999). The Division need not

demonstrate actual harm. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.

Super. 418, 440 (App. Div. 2001). That is, courts consider whether the child's

safety, health, or development will be endangered in the future.

Ibid. Moreover,

“[c]ourts need

not wait to act until a child is actually irreparably impaired by

parental inattention or neglect." In re Guardianship of DMH, 

161 N.J. 365

, 383

(1999) (citing 

A.W., 103 N.J. at 616

n.14).

      In addition, a parent's failure to provide "a permanent, safe, and stable

home" engenders significant harm to the child.

Ibid. Likewise, a parent’s

failure

to provide "solicitude, nurture, and care for an extended period of time is in

itself a harm that endangers the health and development of the child."

Id. at 379.

      "The second prong, in many ways, addresses considerations touched on in

prong one." 

F.M., 211 N.J. at 451

. The focus is on "parental unfitness." 

K.H.O.,

161 N.J. at 352

.




                                                                            A-1373-19
                                       17
      Under prong three, the Division must prove it "made reasonable efforts to

provide services to help the parent correct the circumstances which led to the

child's placement outside the home." N.J.S.A. 30:4C-15.1(a)(3). Reasonable

efforts is defined as "attempts by an agency authorized by the [D]ivision to assist

the parents in remedying the circumstances and conditions that led to the

placement of the child and in reinforcing the family structure." N.J.S.A. 30:4C-

15.1(c). The record must also establish "the court has considered alternatives to

termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3).

      Under the fourth prong, the Division must demonstrate that "[t]ermination

of parental rights will not do more harm than good." N.J.S.A. 30:4C-15(a)(4).

The fourth prong serves as a "'fail safe' inquiry guarding against an inappropriate

or premature termination of parental rights." 

F.M., 211 N.J. at 453

.

      We affirm the trial judge's decision with respect to all four prongs of the

statue substantially for the reasons expressed in his written opinion. We add the

following comments.

      As to prong one, the judge emphasized Amy was a medically fragile child

who required heightened care. The record clearly established M.S. is unable to

care for Amy's special needs, even though they have lessened. Additionally, the

judge was concerned that M.S. left Amy in the care of nurses and caretakers,


                                                                             A-1373-19
                                       18
and her financial irresponsibility would place Amy "at great risk of harm." M.S.

was unable to care for Amy since the January 2016 removal, and therefore, M.S.

is unable to provide a "permanent, safe, and stable home." 

DMH, 161 N.J. at

383

. Moreover, M.S. never eliminated the risk of harm to Amy that her care

posed.

      The judge's finding as to prong one is fully supported by the record. We

are unpersuaded by M.S.'s argument that poverty and lack of housing do not

constitute abuse or neglect, see e.g., Doe v. G.D., 

146 N.J. Super. 419

, 430-31

(App. Div. 1967), because the judge here did not base his prong one findings

solely on her lack of stable housing. The judge considered M.S.'s failure to fully

avail herself of the Division's assistance regarding housing and employment.

      As to the second prong, the judge credited Dr. Figurelli's opinion that M.S.

was unlikely to parent Amy in the foreseeable future and that M.S. failed to

engage in services to meet Amy's needs. The record shows M.S. failed to

participate in updated psychological and bonding evaluations, leading the judge

to conclude she was "not committed to overcoming the shortcomings and

obstacles that prevent[ed] her from being an effective and adequate parent to"

Amy. The judge determined a delay in permanent placement would add to

Amy's harm.


                                                                            A-1373-19
                                       19
      Turning to prong three, we are satisfied the record supports the judge's

finding that the Division made "reasonable efforts" to provide appropriate

services to M.S. The Division engaged in such efforts dating back to 2013,

assisting M.S. with nursing care services for Amy, purchasing a cell phone for

M.S., providing her with information on how to apply for Section 8 housing,

substance abuse, and parenting skill class referrals.

      The last clause of prong three addresses whether "the court has considered

alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). Here,

the judge found the Division "extensively explored relatives for placement" and

that Mary and Aaron wished to adopt Amy. While the judge applauded K.C. for

her interest in parenting Amy, he found she was not a viable placement because

K.C.'s relationship with R.G. posed a threat to Amy's safety.

      The Division satisfies prong three when it provides services to a parent to

help correct the circumstances that led to the child's removal and considers

alternatives to termination of parental rights.         

DMH, 161 N.J. at 386

.

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;

                                                                           A-1373-19
                                       20
            (3) informing the parent at appropriate intervals of the
            child's progress, development, and health; and

            (4) facilitating appropriate visitation.

            [Id. at 387 (citing N.J.S.A. 30:4C-15.1(c)).]

      The court analyzes whether the Division provided reasonable efforts "on

an individualized basis,"

id. at 390,

and measures them by their adequacy under

the circumstances, rather than by their success.

Id. at 393.

      Here, the record supports the judge's findings and conclusions regarding

prong three. The Division provided defendant with numerous services before

Amy's removal to allow M.S. to maintain custody, and after Amy's removal, to

allow M.S. to regain custody. The record demonstrates that the services were

individually tailored to M.S.'s needs because they aligned with those that Dr.

Figurelli recommended.

      M.S. does not brief, or otherwise challenge, the issue of whether the

Division adequately considered alternatives to termination by assessing

relatives, including K.C. As such, she waived this issue on appeal. See, e.g.,

W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 

397 N.J. Super. 455

, 459 (App.

Div. 2008) ("An issue not briefed is deemed waived."). Even so, the record




                                                                         A-1373-19
                                       21
supports the finding that the Division met its burden as it assessed M.S.'s

parents, Amy's maternal uncle, and K.C., and ruled them out.

      In her reply brief, for the first time, M.S. questions whether Mary and

Aaron are fully committed to adopting Amy—M.S. notes that Mary and Aaron

did not testify and contends that Attia's testimony regarding their wishes was

hearsay. M.S. did not address this issue below, therefore, the matter is subject

to the plain error standard of review. See R. 2:10-2 ("Any error or omission

shall be disregarded by the appellate court unless it is of such a nature as to have

been clearly capable of producing an unjust result . . . .").

      The record does not contain any evidence that Mary and Aaron's

preference for adoption is conditional, ambiguous, or qualified. We discern no

error under Rule 2:10-2 and conclude the judge provided a reasonable basis for

his conclusion on prong three.

      Finally, we address the fourth prong.        The judge again credited Dr.

Figurelli's testimony that Amy would experience severe and enduring harm if

her relationship with Mary and Aaron was terminated. Moreover, the judge

found the Division proved prong four because although it did not have a bonding

evaluation between M.S. and Amy, M.S. did not visit Amy since August 2019,

and had a history of missing visits. Prudently, the judge proceeded "with great


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                                        22
caution" because Amy was finally in the care of a family that was both willing

and able to care for her.

      The fourth prong "serves as a failsafe against termination even where the

remaining standards have been met." N.J. Div. of Youth & Family Servs. v.

G.L., 

191 N.J. 596

, 609 (2007). The Division typically satisfies this prong

through testimony of a qualified expert, who conducts a comprehensive and

objective evaluation of the child's relationship with his or her biological parents

and resource parents. N.J. Div. of Youth & Family Servs. v. M.M., 

189 N.J.

261

, 281 (2007).

      Children have their own rights to "a stable, nurturing environment," along

with the security of knowing that their "most deeply formed attachments will

not be shattered." 

F.M., 211 N.J. at 453

. "Keeping the child in limbo, hoping

for some long-term unification plan, would be a misapplication of the law." N.J.

Div. of Youth & Family Servs. v. L.J.D., 

428 N.J. Super. 451

, 484 (App. Div.

2012) (quoting 

A.G., 344 N.J. Super. at 438

).

      We conclude the judge provided a reasonable basis for his conclusion on

prong four that the termination of M.S.'s parental rights will not do any more

harm than good under N.J.S.A. 30:4C-15.1(a)(4). The record does not support

M.S.'s contention that Mary and Aaron treat Amy poorly, or that their home is a


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                                       23
"house of horrors." To the contrary, the evidence shows Amy is thriving in their

home and "appeared to feel emotionally supported, safe, cared for, and

emotionally secure in interaction." Amy did not exhibit "emotional conflicts,

emotional upset, or evidence of emotional disturbance in her relationship" with

Mary and Aaron.     The judge's decision is based upon substantial credible

evidence in the record.

      Affirmed.




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