DCPP VS. T.B. AND C.B., IN THE MATTER OF THE GUARDIANSHIP OF L.B. AND S.B. (FG-13-0065-18, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) ( 2021 )


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  •                                       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    NOT FOR PUBLICATION WITHOUT THE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-0245-20
    A-0246-20
    NEW JERSEY DIVISION
    OF CHILD PROTECTION
    AND PERMANENCY,
    Plaintiff-Respondent,
    v.
    T.B. and C.B.,
    Defendants-Appellants.
    _________________________
    IN THE MATTER OF THE
    GUARDIANSHIP OF L.B.
    and S.B., minors.
    _________________________
    Submitted September 15, 2021 – Decided November 1, 2021
    Before Judges Messano and Enright.
    On appeal from the Superior Court of New Jersey,
    Chancery Division, Family Part, Monmouth County,
    Docket No. FG-13-0065-18.
    Joseph E. Krakora, Public Defender, attorney for
    appellant T.B. (Bruce P. Lee, Designated Counsel, on
    the briefs).
    Joseph E. Krakora, Public Defender, attorney for
    appellant C.B. (Ruth Harrigan, Designated Counsel, on
    the briefs).
    Andrew J. Bruck, Acting Attorney General, attorney for
    respondent (Melissa H. Raksa, Assistant Attorney
    General, of counsel; Tim Sheehan, Deputy Attorney
    General, on the brief).
    Joseph E. Krakora, Public Defender, Law Guardian,
    attorney for minors (Meredith Alexis Pollock, Deputy
    Public Defender, of counsel; Todd Wilson, Designated
    Counsel, on the brief).
    PER CURIAM
    Defendants T.B. (Todd) and C.B. (Carla) appeal the September 3, 2020
    judgment terminating their parental rights to their daughters, L.B. (Laura) and
    S.B. (Sara), born in 2016 and 2017, respectively. 1 On appeal, both defendants
    contend the judge erred by concluding the Division of Child Protection and
    Permanency (Division) satisfied the four prongs of the statutory "best interests
    of the child" standard, N.J.S.A. 30:4C:15.1(a), although Todd limits his
    arguments to the Division's alleged failure to prove prongs three and four. Both
    defendants also argue that the judge improperly considered inadmissible hearsay
    1
    We use initials and pseudonyms pursuant to Rule 1:38-3(d)(12).
    A-0245-20
    2
    evidence.   Carla additionally contends the judge's bias toward her and her
    counsel warrants reversal.
    The Division and the Law Guardian urge us to affirm the order terminating
    defendants' parental rights, and both argue that the judge conducted the trial
    fairly and did not consider inadmissible hearsay evidence in rendering his
    decision.
    After carefully reviewing the record, we affirm.
    I.
    The Division first became involved with the family the day after Laura's
    birth in 2016, when the hospital made a referral because Carla tested positive
    for opiates and benzodiazepine upon admission, and Laura's initial drug screen
    was positive.   The Division filed a verified complaint seeking care and
    supervision of Laura, which the court granted. Approximately two months later,
    in late April 2016, the Title Nine complaint was dismissed, and the matter
    proceeded under Title Thirty. The Division instituted a safety plan and provided
    substance abuse counseling services to defendants, with very limited sporadic
    compliance by both.
    When Sara was born in August 2017, the hospital again made a referral to
    the Division because Carla and the baby tested positive for opiates. The doctors
    A-0245-20
    3
    expressed concerns that Sara might experience withdrawal symptoms, but those
    concerns were resolved without medical intervention. On September 6, the
    Division filed an amended verified complaint seeking care and supervision of
    the children, who were now living with their maternal grandparents, D.B.
    (Denise) and A.B. (Alan). The judge ordered Laura and Sara to remain in the
    temporary custody of their grandparents and also ordered both defendants to
    submit to substance abuse evaluations; visitations with the children thereafter
    were to be supervised.
    We address what transpired prior to the guardianship trial, which
    commenced against both defendants on February 6, 2019, in the context of
    evidence adduced at trial. On the first day of testimony, although Todd's counsel
    represented that defendant had called and claimed to be in transit, Todd never
    arrived.
    Objections to the introduction of documentary evidence commenced with
    the first witness, Jillian Kolupanowich, the Division's adoption caseworker.
    Kolupanowich was the "custodian of the Division record on this case" and
    identified an "updated evidence list," P-1 through -53, as records kept in the
    Division's "ordinary course of business." The judge interjected, noting "this
    witness can only authenticate the Division records." The Deputy Attorney
    A-0245-20
    4
    General (DAG) representing the Division responded that "collaterals" were
    admissible because they were "part of the Division records."               The judge
    disagreed, stating only "Division[] reports, contact sheets, [and] . . . records . . .
    prepared in the Division" were admissible. He ruled that additional exhibits and
    evidence must be authenticated separately.
    Carla's counsel again objected when the DAG showed Kolupanowich a
    contact sheet to refresh her recollection, even though the witness never said she
    did not recall when she served Carla with the guardianship complaint. The judge
    patiently explained to the DAG both the procedural basis for the objection, and
    the substantive objection to embedded hearsay in the document. He asked the
    DAG to specifically identify which documents she sought to admit into
    evidence, and then entertained specific objections from Carla's counsel without
    ruling on them.
    The judge said he would "always be looking to the records . . . on the issue
    of hearsay, but the distinction is . . . i[f] it's unreliable hearsay." Defense counsel
    said he understood, but "the problem is for . . . the Appellate Division record,
    they can't be inside your mind and know exactly what . . . you relied upon or
    not." The DAG responded, "the Appellate Division will rely on the [c]ourt's
    findings."
    A-0245-20
    5
    Carla's counsel proceeded to cite examples of embedded hearsay in the
    proffered documents. As to some objections, the judge made inquiry of the
    DAG, noting at one point he was rejecting again the blanket assertion that
    documents were admissible simply because they were included in the Division's
    records. He said: "I've heard this argument over the years and . . . it doesn't
    work. Just because it's in your files doesn't mean it's the Division records." The
    judge then ruled that "[s]ubject to those objections that have been listed, . . . and
    to the extent that [the documents] are truly Division records, I will admit those
    exhibits . . . ." Carla's counsel asked whether the judge "at some point [would]
    rule on each" objection. The following colloquy ensued:
    Judge: No, . . . when I lay out the facts, I will . . . relate
    what . . . I rely on. If I don't mention it . . . , I'm not
    relying on it. I'm not going to go through every one of
    your objections to every piece of document, I'm not
    doing that.
    Defense counsel: [T]hen we won't end up with a
    redacted version of the evidence for . . . Appellate
    purposes.
    Judge: [T]he Appellate Division has done a fine job
    over the years . . . doing it exactly this way. We don't
    go through every single objection to every conversation
    in the documents, okay?
    Defense counsel:      Well, note my objection for the
    record.
    A-0245-20
    6
    The DAG argued that much of the alleged embedded hearsay was not hearsay at
    all, because the Division was not relying upon the statements to prove the truth
    of the matters asserted.      See N.J.R.E. 801(c)(2).     The judge signaled his
    understanding of the Division's argument.
    Kolupanowich's testimony resumed. Carla was not living with Todd when
    Kolupanowich first met her in April 2018 and referred Carla for a substance
    abuse evaluation. Her efforts to contact Todd at the start of the litigation were
    unsuccessful, in part, because he had been discharged from a substance abuse
    treatment program for noncompliance.         Kolupanowich testified about both
    parents' sporadic compliance with referrals. She was unaware of any visitation
    that took place between Carla, Todd and the children between May 2 and June
    26, 2018, and she had no contact with either parent during that timeframe,
    despite several attempts.
    Carla initially agreed to a hair follicle test, but, due to various delays, the
    test was not performed until September 4, 2018. It was positive for opiates.
    Carla was referred for a follow up assessment, failed to comply, and was
    terminated from the program. Kolupanowich testified that contact with Carla
    was "always sporadic" after October 2018, and she missed scheduled supervised
    visits with Laura and Sara.
    A-0245-20
    7
    Kolupanowich said that the Division continued making efforts to contact
    Todd at the start of the litigation. He was not served with the guardianship
    complaint until he appeared in court in May 2018. In July, Kolupanowich
    learned that Todd was incarcerated; in August, she attempted to reach him,
    without success, at an address which was Todd's mother's residence. Todd
    thwarted substance abuse evaluations Kolupanowich arranged for him by not
    attending, and the YMCA, which was supervising visitation with the children,
    terminated Todd's visits for lack of "consistent communication with the YMCA
    worker."2
    Todd was not present at trial for the second day of testimony, although
    counsel indicated he was "pulling up on the bus right now." It was not until
    2
    We note that throughout much of the testimony, the judge made rulings on
    defendants' objections based on hearsay or other grounds. For example, in
    response to an objection to the testimony about the YMCA's termination of
    Todd's supervised visitation, the judge ruled this was an exception to the hearsay
    rule because the Division contracted the YMCA to provide the service. See,
    e.g., N.J. Div. of Child Prot. & Permanency v. N.B., 
    452 N.J. Super. 513
    , 524
    (App. Div. 2017) ("Reports are admissible when they are prepared by a
    professional consultant of the Division . . . for the purpose of guiding the
    Division in determining the appropriate course of action, and when they are
    maintained in the regular course of the Division's business."). We offer no
    opinion on this ruling which is not specifically challenged on appeal. We use it
    only to exemplify the judge's ongoing rulings on defendants' objections
    regarding the introduction of evidence contained in documents offered by the
    Division.
    A-0245-20
    8
    much later in the morning session that the judge noted, "The record should
    reflect that [defendant] is back." Carla did not appear at all, and her counsel
    offered no explanation for her absence.
    Beata Isabella Arruda was the Division's permanency worker between
    April 2016 and February 2017 following Laura's birth and the initial referral.
    She testified to the substance abuse evaluations and treatment referrals the
    Division made for Carla between the births of the two children and her lack of
    compliance. Arruda also testified about the positive test results on Todd's drug
    screens in October and December 2016, and the many missed appointments for
    him to complete his substance abuse evaluation.          However, Arruda also
    confirmed many positive observations regarding Carla's care for Laura and the
    home the child was then sharing with both defendants.
    Although Carla claimed she had been prescribed pain medication for
    injuries suffered in a car accident, Arruda expressed concern that Carla would
    not sign a release regarding the records of her pain management physician. As
    to Todd, Arruda testified that during her involvement, he "behaved
    appropriately" and did not appear to be under the influence of alcohol or drugs.
    Defense counsel elicited testimony that demonstrated, at least initially after the
    first referral, Carla and Todd provided a safe and secure home for Laura.
    A-0245-20
    9
    The Division called Alan as a witness, ostensibly to identify a Ring
    doorbell video from February 22, 2019, i.e., approximately two weeks after the
    trial had begun. According to Alan, the video, taken after a supervised visit with
    the children, showed Carla using a "spoon" or "straw" with a "packet" of an
    unidentified substance as she stood on the front porch of the home.
    During extensive cross-examination, Alan acknowledged that Carla had
    regularly attended supervised visits with the children in his and Denise's home,
    and she had vacationed with the children on two occasions.           However, in
    response to questions from Carla's counsel, Alan explained that he and his wife
    wanted to adopt Laura and Sara and specifically rejected kinship legal
    guardianship (KLG) as an alternative after discussing that option with the
    Division. He rejected any suggestion that Carla had put her problems "behind
    her." When asked if he would be convinced otherwise if Carla addressed her
    addiction and went to counseling, Alan explained:
    Once she got herself straightened out and a job, full-
    time job, her own place. I want to see her on her own,
    established. She's . . . gotten too much help from us
    over the years, and I screwed up with that. I let her ride
    too many times, and there's been no improvement. She
    just gets worse.
    In response to further questioning from Carla's counsel, Alan continued:
    A-0245-20
    10
    I've learned over the years, I've seen it, when [Carla]
    comes over and she's in a great mood, you can get along
    with her, no confrontation. Then there's another day
    she comes over and you can't even look at her without
    her blowing up and, at least from my observation, it's
    when she's on something you can tolerate her, she's
    okay. It's when she's off the stuff that you can't get
    along with her. And as far as getting better, now she's
    still doing stuff. So as far as getting better at not using
    stuff, no, she's not getting better with that.
    Alan also explained that Carla was not present at trial that day because she had
    outstanding warrants for her arrest.
    Neither defendant was present on April 25, 2019, the third day of trial and
    the continuation of Arruda's and Kolupanowich's testimony.                When trial
    resumed months later, on August 2, 2019, both defendants were present.
    Stephanie Cella, the Division's adoption caseworker, testified about
    events since June 2019, when she was assigned the case. Cella said that Todd
    wished to visit with the children, but the Division was attempting to arrange
    supervision through the YMCA which had a waiting list. Cella also said that
    Denise and Alan no longer agreed to supervise their daughter's visitation with
    Laura and Sara.     Cella testified both defendants failed to attend updated
    substance abuse evaluation appointments since the last trial date. When recalled
    as a witness at a later date, over Carla's hearsay objection, Cella recounted her
    A-0245-20
    11
    conversation with Denise and Alan in which they indicated their intention to
    adopt the girls. 3
    Testimony did not resume again until November 22, 2019, when the
    Division's expert, psychologist Dr. David Brandwein, testified. Todd did not
    appear at trial because he was working on a construction site "in [N]orth Jersey."
    Carla's counsel requested an adjournment because she had entered "a program."
    Cella was present, and the judge asked if she had advised Carla of the trial date;
    Cella had, and she confirmed that during her involvement with the case, Carla
    had never availed herself before of a treatment program. The judge denied the
    adjournment.
    Dr. Brandwein had conducted psychological evaluations of Carla and
    Todd, and bonding evaluations of each defendant with the children in 2018.
    During the litigation, the Division had arranged for Dr. Brandwein to prepare
    updated reports on both defendants. The doctor testified that on two occasions,
    both Carla and Todd failed to appear for scheduled reevaluation appointments.
    3
    The Division also later called Heather ZeLapa as a witness, the supervisor of
    the adoption unit, who described her interactions with Denise and Alan, her
    explanation to them of the differences between KLG and adoption, and their
    intention to adopt Laura and Sara.
    A-0245-20
    12
    Dr. Brandwein updated his previous bonding evaluation between the children
    and Denise and Alan.
    The doctor diagnosed Carla with "unspecified opioid-related disorder,
    generalized anxiety disorder, anti-social and narcissistic personality patterns and
    perpetrator of domestic violence, non-spouse or partner related." 4             Dr.
    Brandwein's diagnosis of Todd was: "unspecified cannabis-related disorder; an
    unspecified opioid-related disorder . . . ; a diagnosed generalized anxiety
    disorder [and] based upon the results of the testing and what [Todd] had told
    [him] with a rule out for post-traumatic stress disorder." The doctor opined that
    it was unlikely either defendant would address their substance abuse in the near
    future so as to effectively parent the children.         Regarding the bonding
    evaluations with the children and defendants, Dr. Brandwein concluded that
    Carla "was consistent and appropriate with the girls during . . . that bonding
    evaluation period," as was Todd.
    Dr. Brandwein continued his testimony on the next trial date, January 30,
    2020. Neither defendant appeared, and neither defense counsel could explain
    their absences. With respect to the bonding evaluations he conducted with the
    4
    The domestic violence diagnosis was premised on the May 25, 2018 incident
    in which Carla was charged with simple assault on Denise and Alan during a
    dispute while visiting the children at her parents' home.
    A-0245-20
    13
    children and Denise and Alan, the doctor opined that Laura "was securely
    bonded to her grandparents." Sarah, who was less than two-years old at the
    time, "was developing an initial attachment to her grandparents, [which] . . . was
    likely to develop into a secure psychological bond when that was appropriat e."
    He noted the defendants had not addressed the serious issues leading to the
    children's removal, and that Denise and Alan "have been [in] a parental role with
    [the children] their entire lives." The doctor did not believe that "termination of
    [defendants'] parental rights would do more harm than good to these children."
    Both defendants testified on later trial dates.          Carla's testimony
    commenced on February 18, 2020, and continued August 11, 2020, which is the
    same day Todd testified. Carla explained that she followed the advice of her
    pain management physician during her two pregnancies and took prescribed
    medication for pain caused by a prior motor vehicle accident. She said she was
    "blissfully unaware that [she] was addicted." Carla claimed that she had not
    used any drugs since July or August 2019 and was working for a general
    construction company since June of that year. Carla was living with close family
    friends. She described the regular visits she had with the children at her parents'
    home since fall 2019, and expressed willingness to participate in any "treatment"
    or mental health counseling ordered by the court.
    A-0245-20
    14
    Todd was living with his mother and working in construction. He had
    served time in Iraq while in the Army and hoped to be reunited with Carla and
    the girls in a home he might finance with a Veterans' Administration loan. He
    believed that the Division's involvement, and Denise's antagonism toward him,
    were responsible for the family's disintegration. Todd acknowledged taking
    prescription medications and occasionally using marijuana, but he denied that
    the Division ever referred him to a substance abuse program.
    On the last hearing date, August 13, 2020, the judge ruled on various
    documents the DAG sought to introduce into evidence, concluding several
    contained inadmissible hearsay and excluding the reports. The attorneys gave
    their closing arguments. The judge rendered his oral decision on the record on
    September 3, 2020; we discuss that in detail below. He entered a conforming
    judgment of guardianship the same day.
    II.
    To terminate parental rights, the Division must prove by clear and
    convincing evidence:
    (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
    A-0245-20
    15
    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) (2015); see also In re
    Guardianship of K.H.O., 
    161 N.J. 337
    , 347–48
    (1999).]5
    "The focus of a termination-of-parental-rights hearing is the best interests of the
    child." N.J. Div. of Youth & Fam. Servs. v. F.M., 
    211 N.J. 420
    , 447 (2012)
    (citing N.J. Div. of Youth & Fam. Servs. v. R.D., 
    207 N.J. 88
    , 110 (2011)). The
    four statutory prongs "are neither discrete nor separate. They overlap to provide
    5
    The Legislature recently enacted L. 2021 c. 154 (eff. July 2, 2021), amending
    N.J.S.A. 30:4C-15.1(a)(2) to exclude from consideration the harm to children
    caused by removal from their resource parents. Accordingly, the second
    sentence of prong two has been eliminated. Although the briefs in this matter
    were filed before the amendment, defendants have not argued the revised statute
    applies retroactively. See R. 2:6-11(d); see also James v. N.J. Mfrs. Ins. Co.,
    
    216 N.J. 552
    , 563 (2014) (recognizing generally statutes should be applied
    prospectively).
    A-0245-20
    16
    a composite picture of what may be necessary to advance the best interests of
    the children." N.J. Div. of Youth & Fam. Servs. v. M.M., 
    189 N.J. 261
    , 280
    (2007) (quoting N.J. Div. of Youth & Fam. Servs. v. F.M., 
    375 N.J. Super. 235
    ,
    258 (App. Div. 2005)).
    The guideposts for our review are well known. We must uphold the trial
    court's findings if "supported by adequate, substantial, and credible evidence."
    N.J. Div. of Youth & Fam. Servs. v. R.G., 
    217 N.J. 527
    , 552 (2014). We defer
    to the judge's factual findings because he had "the opportunity to make first -
    hand credibility judgments about the witnesses . . . [and] ha[d] a 'feel of the case'
    that can never be realized by a review of the cold record." N.J. Div. of Youth
    & Fam. Servs. v. E.P., 
    196 N.J. 88
    , 104 (2008) (quoting M.M., 
    189 N.J. at 293
    ).
    We accord even greater deference to the Family Part's factual findings because
    of its "special jurisdiction and expertise in family matters." N.J. Div. of Youth
    & Fam. Servs. v. M.C. III, 
    201 N.J. 328
    , 343 (2010) (quoting Cesare v. Cesare,
    
    154 N.J. 394
    , 413 (1998)). "Only when the trial court's conclusions are so
    'clearly mistaken' or 'wide of the mark' should an appellate court intervene and
    make its own findings to ensure that there is not a denial of justice." E.P., 
    196 N.J. at 104
     (quoting N.J. Div. of Youth & Fam. Servs. v. G.L., 
    191 N.J. 596
    ,
    605 (2007)).
    A-0245-20
    17
    A.
    Under the first prong, "the Division must prove harm that 'threatens the
    child's health and will likely have continuing deleterious effects on the child.'"
    N.J. Div. of Youth & Fam. Servs. v. A.L., 
    213 N.J. 1
    , 25 (2013) (quoting K.H.O.,
    
    161 N.J. at 352
    ).     The Division need not "wait 'until a child is actually
    irreparably impaired by parental inattention or neglect.'" F.M., 211 N.J. at 449
    (quoting D.M.H., 
    161 N.J. 365
    , 383 (1999)).
    Under prong two, "the inquiry centers on whether the parent is able to
    remove the danger facing the child." F.M., 211 N.J. at 451 (citing K.H.O., 161
    N.J. at 352). This prong may be proven by "indications of parental dereliction
    and irresponsibility, such as the parent's continued or recurrent drug abuse, [and]
    the inability to provide a stable and protective home." K.H.O., 161 N.J. at 353.
    "Prong two may also be satisfied if 'the child will suffer substantially from a
    lack of . . . a permanent placement and from the disruption of [the] bond with
    foster parents.'" F.M., 211 N.J. at 451 (second alteration in original) (quoting
    K.H.O., 161 N.J. at 363). Prongs one and two "are related to one another, and
    evidence that supports one informs and may support the other as part of the
    comprehensive basis for determining the best interests of the child." D.M.H.,
    161 N.J. at 379.
    A-0245-20
    18
    As to prong one, Carla argues the Division "offered no proof . . . how [her]
    substance abuse harmed her children." She cites caselaw in support of the
    proposition that a parent's use of illegal drugs during pregnancy is insufficient
    proof of harm, as is the mere fact that the child tested positive for illegal drugs
    at birth. See, e.g., A.L., 213 N.J. at 23–25. As to the second prong, Carla
    contends hers "is not a case where a parent refused to comply with demanded
    services[,]" but rather the Division simply "failed to follow through with
    appropriate referrals for housing and appropriate substance abuse treatment."
    We disagree.6
    The judge reviewed Carla's stay at the hospital immediately following
    Laura's birth in February 2016. He noted Carla's continued positive drug screens
    following the birth, as well as her evasive answers and obfuscations whenever
    the Division attempted to ascertain whether defendant's claimed continued use
    of prescription drugs to alleviate pain was legitimate. The judge took note that
    in 2017, "things seemed to be stabilizing[,] if not getting better" for Carla.
    6
    In a separate point, Carla contends the judge "erroneously applied the best
    interest standard" as to all four prongs instead of the statutory "clear and
    convincing evidence standard." The argument lacks sufficient merit to warrant
    discussion in a written opinion. R. 2:11-3(e)(1)(E). The judge clearly
    understood what the Division's burden of proof was and said so. Additionally,
    the statute itself states the Division must prove that termination of parental rights
    is "in the best interest of the child," N.J.S.A. 30:4C-15.1(a).
    A-0245-20
    19
    However, there was evidence of Carla's continued drug addiction during her
    second pregnancy and her admission that "she needed help." At birth, Sara
    tested positive for opiates, and there were concerns that she might suffer
    withdrawal symptoms.
    In concluding the Division had satisfied its burden under prong one, the
    judge found that "in each of the hospitalizations just before the birth of the
    child[, Carla] was willing to make the decision that the drug abuse was more
    important than the risk that the child would suffer particularly from withdrawal
    symptoms. That risk continues as long as there is continued use." See N.J. Div.
    of Youth & Fam. Servs. v. L.M., 
    430 N.J. Super. 428
    , 444 (App. Div. 2013)
    (holding that ongoing irresponsible behavior by a drug-addicted parent, and his
    or her failure to take advantage of services offered by the Division, can meet the
    burden of proof).
    Moreover, the judge found that Carla and Todd were "satisfied to be happy
    visitors" in the children's lives, resulting in Denise and Alan "tak[ing] on the
    strain and responsibilities" of parenting "while [defendants] continued to enjoy
    their unaddressed drug lifestyle." Lastly, the judge found that both defendants
    "were absent due to their own incarceration." These findings and conclusions
    are supported by the record evidence.
    A-0245-20
    20
    As to prong two, the judge recognized "there [were] some occasional yet
    very brief periods where [defendants] appeared to want to engage in treatment,"
    but "thereafter they resorted to covering up or preventing detection in any way
    by the [c]ourt and by the Division." This finding, particularly as to Carla, is
    clearly and convincingly demonstrated by the record evidence which the judge
    specifically detailed.
    Carla's argument that the Division's substance abuse referrals were not
    appropriate lacks sufficient merit to warrant extensive discussion. R. 2:11-
    3(e)(1)(E). It suffices to say, Carla was in no position to choose what program
    she wished to attend and refuse to go to others. Indeed, the judge cited repeated
    examples, even while the litigation was pending, in which Carla simply failed
    to attend evaluations so the process could move forward. More importantly for
    our purposes, regarding both defendants, the judge specifically found:
    they believed that they could manipulate the course of
    events, sometimes through lies, sometimes by
    avoidance, and . . . they believe[,] and continue to
    believe[,] that they need to only come up with a story
    or an excuse and people would likely believe them. The
    [c]ourt cannot credit their testimony.
    Additionally, the judge did not cite Dr. Brandwein's testimony in reaching
    his conclusions on these prongs, rather, he extensively referred to the doctor's
    findings and opinions in his decision. Dr. Brandwein opined that Carla lacked
    A-0245-20
    21
    any insight into her substance abuse problems and demonstrated an
    "unwillingness to acknowledge problems that were clear and evident."
    The Division's evidence regarding prongs one and two as to Carla was
    clear and convincing, and we find no reason to disturb the judge's findings and
    conclusions.
    B.
    N.J.S.A. 30:4C-15.1(a)(3) requires the Division make "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 to "consider[] alternatives
    to termination of parental rights." A court's inquiry into the reasonableness of
    the Division's efforts also includes a consideration of "whether a parent actively
    participated in the reunification effort." N.J. Div. of Youth & Fam. Servs. v.
    L.J.D., 
    428 N.J. Super. 451
    , 488 (App. Div. 2012) (citing D.M.H., 161 N.J. at
    393). Moreover, "[e]xperience tells us that even [the Division's] best efforts
    may not be sufficient to salvage a parental relationship," F.M., 211 N.J. at 452,
    and even if the Division provides deficient services to a parent, reversal is not
    necessarily warranted, "because the best interests of the child controls" the
    ultimate determination, N.J. Div. of Youth & Fam. Servs. v. F.H., 
    389 N.J. Super. 576
    , 621 (App. Div. 2007).
    A-0245-20
    22
    Carla contends the Division failed to make "reasonable efforts" because it
    "failed to provide services that were reasonable under all the circumstances."
    Additionally, she argues the judge failed to "explore alternatives to termination."
    Todd contends the judge's consideration of alternatives to termination was
    flawed because it relied upon hearsay statements by Denise, who never testified,
    but allegedly made to the Division's workers about her desire to adopt Laura and
    Sara. We are unpersuaded by any of these arguments.
    The judge found it was "difficult to think of a more determined effort by
    the Division and its contracted substance abuse counselors to help the parents
    address drug issues." He cited the evidence demonstrating the "scores" of
    unsuccessful appointments the Division made for defendants, yet, it "tried and
    tried again" to offer substance abuse treatment to them.         The judge cited
    problems the Division had in maintaining contact with both defendants and
    arranging visitation when Denise and Alan refused to supervise the visits. He
    found the various Division workers' testimony "was remarkably consistent"
    about their efforts to provide treatment, "only to be rejected over a period of
    time." All these findings and conclusions are supported by the evidence.
    The judge specifically considered alternatives to termination. He rejected
    defendants' contention that Alan was confused about his and Denise's
    A-0245-20
    23
    commitment to adopt Laura and Sara, specifically finding from the testimony
    "[t]here was never a question in [Alan's] mind as to what he wanted." The judge
    found the grandparents rejected KLG, and he cited Alan's skepticism about
    Carla's ability to address her addiction, and both defendants' "constant
    disruption in [the grandparents' lives] and . . . the lives of the girls." The judge
    concluded Denise and Alan "made their decision [to adopt] . . . unconditionally,
    unambiguously, and unqualifiably."
    Seen in this light, Todd's contention that testimony about Denise's
    statements to the Division's workers were inadmissible hearsay provides no
    basis to reverse. Even if the statements should have been excluded, any error
    was harmless in light of Alan's unequivocal testimony about the couple's
    commitment to adopt during defense counsel's questioning. R. 2:10-2. The
    judge found that testimony credible.
    C.
    The fourth prong of the statute requires the court to determine that
    termination "will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). It
    serves as a "'fail-safe' inquiry guarding against an inappropriate or premature
    termination of parental rights." F.M., 211 N.J. at 453 (quoting G.L., 
    191 N.J. at 609
    ). "The question ultimately is not whether a biological mother or fat her is a
    A-0245-20
    24
    worthy parent, but whether a child's interest will best be served by completely
    terminating the child's relationship with th[e] parent." E.P., 
    196 N.J. at 108
    .
    Typically, "the [Division] should offer testimony of a well[-]qualified expert
    who has had full opportunity to make a comprehensive, objective, and informed
    evaluation of the child's relationship with both the natural parents and the foster
    parents." F.M., 211 N.J. at 453 (quoting M.M., 
    189 N.J. at 281
    ).
    The judge's findings for prong four credited Dr. Brandwein's expert
    testimony that Laura was firmly bonded to her grandparents, and Sara, who had
    lived with them her entire life, was firmly attached to them.          The doctor
    acknowledged that Sara was too young to have already formed a psychological
    bond with Denise and Alan, but it was probable she would eventually do so
    under the circumstances. The judge noted the doctor testified that the children's
    relationship with defendants "was friendly and comfortable, but it was not
    parental." He credited the doctor's testimony that "the children would not suffer
    enduring psychological harm if the parents' rights were terminated or that any
    harm that might result, . . . the grandparents would be able to mitigate."
    Carla claims the Division's proofs were insufficient because the "evidence
    showed . . . [she] was clearly committed to her daughters and complied with
    services." She also contends the evidence was inadequate because the Division
    A-0245-20
    25
    failed "to provide an updated bonding evaluation." Todd argues that the judge
    misapplied the statutory standard and, even if the proper standard was applied,
    the evidence was insufficient to prove that termination would not do more harm
    than good.
    An updated bonding evaluation was not performed because both
    defendants, on two separate occasions, failed to appear for a scheduled
    appointment. That testimony, from Dr. Brandwein, was unrefuted. Carla seizes
    on the doctor's candid admission that she demonstrated a caring and appropriate
    attitude during the bonding session and transforms that into an argument that
    she "complied with services"; she clearly did not. Moreover, no one questions
    that Carla loves her daughters and is committed to their well-being. However,
    under the fourth prong, the court must engage in an exquisitely difficult
    balancing process to determine whether termination will do more harm than
    good. The judge gave careful consideration to the evidence, particularly Dr.
    Brandwein's conclusion that the children would not suffer significant, endu ring
    harm if Carla's parental rights were terminated. We see no basis to reverse.
    Todd seizes on statements the judge made using the term "likely" or
    "unlikely" in recounting some of the evidence. From this, he contends the judge
    applied a "preponderance of the evidence" standard instead of requiring clear
    A-0245-20
    26
    and convincing proof. The argument lacks sufficient merit to warrant discussion
    in a written opinion. R. 2:11-3(e)(1)(E).
    Todd also argues that Dr. Brandwein failed to opine that Sara had a firm,
    secure bond with Denise and Alan, and he claims that the doctor's testimony did
    no more than express an opinion that the girls' life with their grandparents was
    "better" than it was with Todd and Carla. He notes that the Court has specifically
    rejected the premise that the statutory best interests standard can be met when
    the Division only proves when the resource home is simply better than the
    parents' home. See, e.g., N.J. Div. of Youth & Fam. Servs. v. A.W., 
    103 N.J. 591
    , 602–03 (1986) ("Our statute speaks of the 'best interests' of the child. We
    emphasize at the outset that the 'best interests' of a child can never mean the
    better interests of the child." (citing In re Guardianship of Cope, 
    106 N.J. Super. 336
    , 340–41 (App. Div. 1969))).
    However, a fair reading of both Dr. Brandwein's testimony and the judge's
    findings make clear that the prong four evidence was taken in the context of all
    the evidence regarding the other statutory prongs. The findings were not a
    comparison between defendants' home and the grandparents' home.              They
    reflected earlier findings that it was unlikely defendants could ameliorate the
    harm caused by their drug usage and unstable lifestyles to provide Laura and
    A-0245-20
    27
    Sara with the permanency they needed. In evaluating the fourth-prong proofs,
    "an important consideration is '[a] child's need for permanency.'" F.M., 211 N.J.
    at 453 (alteration in original) (quoting M.M., 
    189 N.J. at 281
    ). "Keeping the
    child[ren] in limbo, hoping for some long[-]term unification plan, would be a
    misapplication of the law." N.J. Div. of Youth & Fam. Servs. v. A.G., 
    344 N.J. Super. 418
    , 438 (App. Div. 2001) (citing In re P.S., 
    315 N.J. Super. 91
    , 121
    (App. Div. 1998)).
    III.
    Carla and Todd both contend that the judge relied upon inadmissible
    hearsay evidence in reaching his conclusions. Todd contends that the judge's
    early ruling regarding the bulk of the Division's documentary evidence
    effectively "muzzled" counsel and rendered his assistance ineffective. Carla
    joins in the argument, contending it is unclear whether the judge relied on
    embedded hearsay statements in the documents because he failed to rule on her
    objections or force the Division to redact hearsay from the records.
    The Division and the Law Guardian both argue that the judge made clear
    he would examine the records, exclude inadmissible hearsay, and not rely on it
    in his decision. Both contend that it is clear from the judge's opinion he did not
    rely on inadmissible hearsay contained in the Division's records.
    A-0245-20
    28
    We agree that the method employed by the judge at the start of the case
    was problematic. Carla's counsel lodged specific objections to sections of
    numerous Division documents, but the judge chose not to rule on them at that
    point. Having examined the documents ourselves, we have little doubt that some
    of them contained inadmissible hearsay. A better practice would have been for
    counsel to have reviewed all the documents before trial and present to the judge
    only those upon which they could not agree should be redacted for his decision.
    However, as the judge noted, guardianship trials are bench trials, and, in
    all bench trials, the judge has access to, and must review, evidence that
    ultimately is not admitted. We trust the judge to accept and consider only
    admissible evidence, even when a document is admitted into evidence subject
    to objections and not redacted beforehand, as was the case here.
    Moreover, our review of the transcript reveals that defense counsel
    continued to object throughout the trial to testimony and documentary exhibits
    because of hearsay or on other grounds, and the judge was actively involved in
    making rulings on those objections. He frequently sustained the objections. In
    short, we have no doubt the judge understood the Rules of Evidence and properly
    considered only admissible evidence contained in the Division's documents in
    making his findings and reaching his conclusions.       Nothing in the judge's
    A-0245-20
    29
    decision itself is premised on inadmissible evidence or otherwise unsupported
    by properly admitted evidence. We find no reason to reverse on these grounds.
    Lastly, in a separate point, Carla contends the judge was biased toward
    her and her counsel so as to deny her a fair trial. The argument lacks sufficient
    merit to warrant extensive discussion.       R. 2:11-3(e)(1)(E). The judge was
    anxious to complete the testimony, which was interrupted at several points and,
    for several months by the Covid-19 closing of the courts.           Nonetheless,
    defendants were given a full and fair opportunity to contest the Division's proofs
    and to testify at length in their defense.
    Affirmed.
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    30