DCPP VS. A.T. AND A.M., SR., IN THE MATTER OF THE GUARDIANSHIP OF A.M., JR., AND A.R.M., (FG-08-0019-19, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) ( 2020 )


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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    NOT FOR PUBLICATION WITHOUT THE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 NOS. A-4590-18T1
    A-4591-18T1
    NEW JERSEY DIVISION
    OF CHILD PROTECTION
    AND PERMANENCY,
    Plaintiff-Respondent,
    v.
    A.T. and A.M., SR.,
    Defendants-Appellants.
    ________________________
    IN THE MATTER OF THE
    GUARDIANSHIP OF A.M.,
    JR., and A.R.M.,
    Minors.
    ________________________
    Submitted May 6, 2020 – Decided June 5, 2020
    Before Judges Koblitz, Whipple and Mawla.
    On appeal from the Superior Court of New Jersey,
    Chancery Division, Family Part, Gloucester County,
    Docket No. FG-08-0019-19.
    Joseph E. Krakora, Public Defender, attorney for
    appellant A.T. (Robyn A. Veasey, Deputy Public
    Defender, of counsel; Catherine F. Reid, Designated
    Counsel, on the briefs).
    Joseph E. Krakora, Public Defender, attorney for
    appellant A.M., SR. (Robyn A. Veasey, Deputy Public
    Defender, of counsel; Meghan K. Gulczynski,
    Designated Counsel, on the briefs).
    Gurbir S. Grewal, Attorney General, attorney for
    respondent (Melissa H. Raksa, Assistant Attorney
    General, of counsel; Amy Melissa Young, Deputy
    Attorney General, on the brief).
    Joseph Krakora, Public Defender, Law Guardian,
    attorney for minor G.D. (Meredith Alexis Pollock,
    Deputy Public Defender, of counsel; Todd S. Wilson,
    Designated Counsel, on the brief).
    PER CURIAM
    In this consolidated matter, defendants A.T. 1 (Amelia) and A.M., Sr.
    (Avery, Sr.) appeal from the June 18, 2019 judgment terminating their parental
    rights to their biological children, A.M., Jr. (Avery, Jr.), born in January 2012
    and A.R.M. (Alex), born in December 2016. The Division of Child Protection
    and Permanency (Division) first became involved with the family in July 2016.
    The children were removed from the defendants' care about a year later. After
    1
    We use initials and pseudonyms to preserve the privacy of the parties. R.
    1:38-3(d)(12).
    A-4590-18T1
    2
    three years of unresolved substance abuse, mental health, employment, and
    housing issues, the court found that the Division proved that termination of
    parental rights was in the best interests of the children. The Law Guardian urges
    affirmance, and after a thorough review of the facts in light of the pertinent law,
    we affirm.
    I. Factual Background.
    The evidence presented at trial revealed the following facts. The Division
    first became involved with defendants in July 2016 when it received an
    anonymous referral that a pregnant Amelia was "snorting Percocet pills that
    were obtained illegally." During the Division's July 18, 2016 interview of
    defendants at their home, which they shared with their then four-year-old son,
    Avery, Jr. and Amelia's mother, G.M.T. (Gina), Avery, Sr. revealed he had been
    prescribed Percocet. Gina, who, according to the Division, was "very coherent"
    despite her schizophrenia, denied having any concerns about defendants '
    parenting. Amelia was told to complete a urine screen.
    Later that day, Amelia called the Division and admitted she was abusing
    Percocet and needed help.       Amelia tested positive for opiates.      A safety
    protection plan (SPP) was implemented for a month, during which Avery, Sr.
    A-4590-18T1
    3
    was approved to supervise Amelia with Avery, Jr. The Center for Family
    Services (CFS) recommended an intensive out-patient program (IOP).
    Amelia began her IOP in September 2016, but after attending two group
    sessions, she did not return to treatment and was officially discharged from the
    program in November. She agreed to random drug testing the following month
    but failed to comply.
    After his birth the following month, Alex tested positive for oxycodone
    and suffered withdrawal symptoms. Alex was discharged to his parents at the
    beginning of January 2017, with an SPP again in place requiring that Amelia's
    contact with her children be supervised by Avery, Sr. or her grandmother,
    G.A.T. (Gail). The SPP was lifted later in the month.
    Two months later, the court granted Gail joint custody of both children
    and designated her as the parent of primary residence. Amelia and Avery, Sr.
    had been living with his mother, L.W. (Lisa). Defendants were granted "open
    and liberal parenting time as agreed." This order was modified at the beginning
    of May 2017 to forbid Amelia from exercising unsupervised time with the
    children if she had used drugs within twenty-four hours of the visit.
    The following month, the Division received another referral alleging that
    Avery, Sr. was abusing heroin and morphine. He claimed he was only taking
    A-4590-18T1
    4
    his prescribed oxycodone as directed. At this time, Avery, Sr. was living with
    Lisa, while Amelia and the children lived with Gail.
    At the end of June 2017, the Division received its next referral from the
    Monroe Township police, reporting that Amelia overdosed on heroin in th e
    presence of then six-month-old Alex while she was at Lisa's house. The police
    reported that "[f]ive full bags of heroin, paraphernalia/contraband and several
    prescription[] bottles with [Gail's] name," were found in the room. Although
    Gail denied that Amelia took Gail's medication, she noted her pills
    "occasionally" went missing.     Thirty-two pills were missing from Gail's
    oxycodone prescription bottle. A Dodd removal2 of Avery, Jr. from Gail's home
    was facilitated.
    Later, Amelia, Avery, Sr. and Alex were found on the street by a police
    officer. The Division worker went to the scene and observed that defendants
    appeared to be "under the influence." Avery, Sr. was "falling/rocking into the
    stroller where [Alex] [was] located." When the Division confronted Amelia
    about her overdose that morning, she denied the allegation and stated nothing
    2
    A "Dodd removal" is the emergency removal of a child from a home without
    a court order, pursuant to the Dodd Act, N.J.S.A. 9.6-8.21 to -8.82.
    A-4590-18T1
    5
    happened. Alex was also emergently removed due to defendants' "substance use
    and their inability to keep him safe while in their care."
    The police reported that later that day, Avery, Sr. was arrested for being
    under the influence and drugs were found on him. Two days later, the Division
    obtained custody of both boys and defendants were allowed Division-supervised
    visits only.
    The following month, Amelia admitted to using heroin and stealing Gail's
    pills. Avery, Sr. continued to deny any substance abuse and stated he was not
    under the influence. Defendants refused to submit to numerous unscheduled
    drug tests.
    Psychologist Dr. Janet Cahill, Ph.D., concluded that Gail "had significant
    deficits in cognition, memory and adaptive skills and was not able [to] safely
    parent [Avery, Jr.] and [Alex] on her own." Dr. Cahill noted that because
    Amelia admitted to substance abuse and tested positive for benzodiazepines and
    opioids, her visitation with the children should remain supervised and she should
    continue to comply with random drug testing and enter a detox progr am. As to
    Avery, Sr., Dr. Cahill found him to be "very guarded and defensive," noting that
    he refused to cooperate with random drug testing. She suggested that in addition
    to supervised visitations and compliance with random drug tests, "he should be
    A-4590-18T1
    6
    referred for short term motivational interviewing to attempt to improve his
    insight and willingness to sincerely engage in other services."
    In October 2017 Amelia again tested positive for benzodiazepines and
    opioids, as well as Suboxone. Avery, Sr. "nodded off" several times during his
    drug evaluation and tested positive for heroin and marijuana. A short-term
    "clinically managed high-intensity residential" treatment program was
    recommended for both Amelia and Avery, Sr.
    A fact-finding hearing was held on November 15, 2017, where the court
    heard testimony from two Division caseworkers and found the Division had not
    demonstrated that defendants abused or neglected their children but were "part
    of a family in need of services." The court continued to order defendants and
    Gail to comply with evaluations and submit to random drug and hair follicle
    testing. Defendants were allowed weekly supervised visits with their children.
    In December 2017, Amelia revealed to the Division that she and Avery, Sr.
    separated because "if they stayed together each one would probably still do
    drugs."
    Avery, Sr. entered a substance abuse program in December 2017, but was
    discharged six days later. In January 2018, Amelia was admitted into a detox
    program. Upon her completion, she entered into an IOP.
    A-4590-18T1
    7
    Defendants    again   missed    several   unscheduled    substance      abuse
    evaluations, but when they did attend, they often tested positive for various
    drugs. Defendants also had difficulty complying with their drug rehabilitation
    programs.
    In April 2019, Dr. Melanie A. Freedman, Ph.D., performed psychological
    and bonding evaluations of defendants with their children. As to Amelia, Dr.
    Freedman noted that "there is some attachment between [Amelia] and [Avery,
    Jr.], [but] some parenting-related risks still remain, such as a high relapse
    potential and lack of stable housing." Similarly, Dr. Freedman found that
    although Avery, Sr. clearly loved his children, "his poor insight regarding his
    need for any services and his past problems with compliance, including his
    recent failure to undergo drug testing when explicitly requested to do so, suggest
    a poor prognosis for reunification." Dr. Freedman supported termination of
    parental rights.
    Defense psychologist Dr. Andrew P. Brown III, Ph.D. found that Avery,
    Sr. had "significant issues revolving around lack of stability, support and
    narcotic use," therefore failing to "demonstrate readiness to be a minimally
    adequate parent/caregiver to his children." He opined, however, that despite
    Avery, Jr.'s "secure attachment to the resource parents, [because] [Avery, Sr.]
    A-4590-18T1
    8
    has remained as the central figure of emotional attachment in [his] life. . . .
    [t]ermination of parental rights followed by severed contact will do more
    psychological harm than good." Dr. Brown suggested the court "consider an
    alternative arrangement to termination of parental rights that would insure
    [Avery, Jr.] the freedom and capacity to continue contact with his natural
    father." Dr. Brown did not suggest a practical alternative to termination, given
    that New Jersey does not recognize open adoptions, where biological parents
    retain visitation rights after adoption. In re Adoption of a Child by W.P., 
    163 N.J. 158
    , 172 (2000). Defendants did not testify.
    Amelia presents the following arguments on appeal:
    POINT I: DEPRIVATION OF A FUNDAMENTAL
    CONSTITUTIONAL RIGHT SHOULD NOT BE
    AFFIRMED WHERE THE FAMILY PART OPINION
    IS AMBIGUOUS AND INCOMPLETE, FAILING TO
    COMPLY WITH R. 1:7-4; AND WHERE THE JUDGE
    CONDUCTED THE PROCEEDINGS IN A MANNER
    THAT VIOLATED THE PARENTS' DUE PROCESS
    RIGHTS.
    A.    THE FAMILY PART FAILED TO MAKE
    CLEAR FINDINGS OF FACT ON CRITICAL ISSUES
    AND FAILED TO CORRELATE ITS FINDINGS OF
    FACT      TO     THE  NECESSARY    LEGAL
    CONCLUSIONS AS TO THE FOURTH PRONG OF
    N.J.S.A. 30:4C-15.1A.
    B.  THE FAMILY PART FAILED TO MAKE ANY
    LEGAL CONCLUSIONS AT ALL AS TO EITHER
    A-4590-18T1
    9
    PART OF THE THIRD PRONG OF N.J.S.A. 30:4C-
    15.1A.
    C.  THE FAMILY PART CONDUCTED THE
    PROCEEDINGS IN SUCH A WAY THAT THE
    PARENTS WERE DENIED DUE PROCESS.
    POINT II:  THE TRIAL COURT'S LEGAL
    CONCLUSIONS AS TO N.J.S.A. 30:4C-15 WERE
    NOT SUPPORTED BY SUFFICIENT, COMPETENT
    EVIDENCE.
    A.   THE "FACTS" FOUND BY THE TRIAL
    COURT TO SUPPORT ITS LEGAL CONCLUSIONS
    AS TO THE FIRST PRONG OF N.J.S.A. 30:4C-15.1A
    WERE LARGELY BASED ON HEARSAY.
    B.  EVEN IF THE EVIDENCE ON WHICH THE
    JUDGE RELIED TO FIND THE FIRST PRONG
    SATISFIED HAD BEEN COMPETENT, IT DID NOT
    DEMONSTRATE PHYSICAL, EMOTIONAL OR
    PSYCHOLOGICAL HARM TO THE CHILDREN.
    NOR WAS THERE CLEAR AND CONVINCING
    EVIDENCE IN THE RECORD THAT THE
    CHILDREN WERE HARMED BY THEIR STAY IN
    FOSTER CARE.
    C. THE TRIAL COURT ERRED IN CONCLUDING
    THAT THE SECOND PRONG OF N.J.S.A. 30:4C-
    15.1A WAS SATISFIED AT A CLEAR AND
    CONVINCING LEVEL OF PROOF WHERE THE
    RECORD SHOWED THAT A.T. COULD CEASE
    HARMING THE CHILDREN AND IT WAS
    REASONABLY FORESEEABLE SHE WOULD BE
    ABLE TO PARENT THEM IN THE FUTURE.
    D. THE JUDGMENT CANNOT BE AFFIRMED
    BECAUSE THE FAMILY PART OMITTED THE
    A-4590-18T1
    10
    REQUIRED       CONSIDERATION       OF
    ALTERNATIVES TO TERMINATION, AND DCPP
    DID NOT PRESENT A RECORD ON WHICH THE
    OMITTED LEGAL CONCLUSION COULD BE
    COMPETENTLY BASED.
    E. THE TRIAL COURT ERRED IN CONCLUDING
    THAT THE FOURTH PRONG OF N.J.S.A. 30:4C-
    15.1A WAS SATISFIED AT A CLEAR AND
    CONVINCING LEVEL OF PROOF WHERE THE
    RECORD DID NOT CONTAIN COMPETENT
    EVIDENCE THAT TERMINATION OF PARENTAL
    RIGHTS WOULD RESULT IN A PERMANENT
    HOME FOR THE BOYS AND THE BONDING
    EVIDENCE WAS MIXED AND AMBIGUOUS.
    Avery, Sr., presents the following arguments on appeal:
    POINT I: THE COURT ERRED WHEN IT RELIED
    UPON HEARSAY EVIDENCE TO CONCLUDE THE
    FATHER HARMED HIS CHILDREN.
    POINT II:   THE COURT MISSTATED THE
    EVIDENCE AND ERRED IN FINDING THE
    FATHER DID NOT MAKE EFFORTS TO ADDRESS
    HIS SUBSTANCE USE DISORDER.
    POINT III: THE TRIAL COURT FAILED TO MAKE
    ADEQUATE      FINDINGS     OF  FACT   AND
    CONCLUSIONS OF LAW IN ITS DECISION AS TO
    PRONG THREE OF THE BEST INTEREST TEST
    UNDER N.J.S.A. 30:4C-15.1A(3).
    POINT IV: DCPP FAILED TO DEMONSTRATE BY
    CLEAR AND CONVINCING EVIDENCE THAT
    TERMINATION OF PARENTAL RIGHTS WILL
    NOT DO MORE HARM THAN GOOD AND THE
    COURT FAILED TO ACCURATELY ARTICULATE
    A-4590-18T1
    11
    PRONG FOUR AND CONSIDER IT IN LIGHT OF
    THE FATHER'S STRONG BOND WITH HIS SON,
    BUT INSTEAD RELIED UPON DCPP'S EXPERT
    WHO DEMONSTRATED A BIAS WHEN SHE
    REFUSED   TO   RELY  UPON    EMPIRICAL
    EVIDENCE.
    II. Our Standard of Review.
    Our review of a judgment terminating parental rights is limited. N.J. Div.
    of Youth & Family Servs. v. R.G., 
    217 N.J. 527
    , 552 (2014). We must determine
    whether the decision is "supported by 'substantial and credible evidence' on the
    record." 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. M.M., 
    189 N.J. 261
    , 279 (2007)).
    We defer to the family court's factual findings, because that court "has the
    superior ability to gauge the credibility of the witnesses . . . and because it
    possesses special expertise in matters related to the family."
    Ibid. Ultimately, a family
    court's decision should not be overturned unless it went "so 'wide of the
    mark'" that reversal is needed "to correct an injustice."
    Ibid. (quoting N.J. Div.
    of Youth & Family Servs. v. E.P., 
    196 N.J. 88
    , 104 (2008)). The court's
    interpretation of the law or its legal conclusions are reviewed de novo. State ex
    rel. A.B., 
    219 N.J. 542
    , 554-55 (2014); Manalapan Realty, L.P. v. Twp. Comm.
    of Manalapan, 
    140 N.J. 366
    , 378 (1995).
    A-4590-18T1
    12
    Parents have a constitutionally protected right to the care, custody, and
    control of their children. 
    F.M., 211 N.J. at 447
    . That right, however, is not
    absolute.
    Ibid. At times, a
    parent's interests must yield to the State's obligation
    to protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M., 
    198 N.J. 382
    , 397 (2009). "Children must not languish indefinitely in foster care
    while a birth parent attempts to correct the conditions that resulted in an out -of-
    home placement." N.J. Div. of Youth & Family Servs. v. S.F., 
    392 N.J. Super. 201
    , 209 (App. Div. 2007).
    To address such concerns, the Legislature created the best interests test
    for determining whether a parent's rights must be terminated. N.J.S.A. 30:4C-
    15.1(a) requires that the Division prove all four prongs by clear and convincing
    evidence. N.J. Div. of Child Prot. & Permanency v. T.D., 
    454 N.J. Super. 353
    ,
    378 (App. Div. 2018). The four prongs are not independent of one another.
    Id. at 379.
    Rather, they "are interrelated and overlapping" and "designed to identify
    and assess what may be necessary to promote and protect the best interests of
    the child." N.J. Div. of Youth & Family Servs. v. R.L., 
    388 N.J. Super. 81
    , 88
    (App. Div. 2006).
    A-4590-18T1
    13
    III. Prong One.
    To satisfy the first prong of the best interests test, the Division must prove
    by clear and convicting evidence that "the child's safety, health, or development
    has been or will continue to be endangered by the parental relationship."
    N.J.S.A. 30:4C-15.1(a)(1).
    A. Hearsay Evidence.
    Both parents object to the hearsay nature of some of the evidence. "[A]
    statement, other than one made by the declarant while testifying at the trial or
    hearing, offered in evidence to prove the truth of the matter asserted," is
    inadmissible, unless an exception applies. N.J.R.E. 801(c); N.J.R.E. 803.
    Division reports are generally admissible under the N.J.R.E. 803(c)(6)
    business record exception to hearsay. N.J. Div. of Child Prot. & Permanency v.
    N.T., 
    445 N.J. Super. 478
    , 495 (App. Div. 2016). Because "requiring all
    [Division] personnel having contact with a particular case to give live testimony
    on all the matters within their personal knowledge would cause an intolerable
    disruption . . . . it becomes necessary to allow certain evidence to be produced
    in a hearsay form."
    Id. at 496
    (alteration in original) (quoting In re Guardianship
    of Cope, 
    106 N.J. Super. 336
    , 343 (App. Div. 1969)). Therefore, statements to
    the report's author "by Division 'staff personnel (or affiliated medical,
    A-4590-18T1
    14
    psychiatric, or psychological consultants), [made based on] their own first-hand
    knowledge of the case, at a time reasonably contemporaneous with the facts they
    relate, and in the usual course of their duties with the' Division" are
    admissible.
    Ibid. (alteration in original)
    (quoting 
    Cope, 106 N.J. at 343
    ).
    However, "written reports from neighbors, the police or other persons," are
    governed by the usual hearsay rules.
    Ibid. (quoting Cope, 106
    N.J. at
    344). "[E]ven if a document 'is admissible as a record of regularly conducted
    activity,' statements by others reported by the author of the document 'are
    "hearsay-within-hearsay," each level of which . . . requires a separate basis for
    admission into evidence.'"
    Id. at 497
    (quoting Estate of Hanges v. Metro. Prop.
    & Cas. Ins. Co., 
    202 N.J. 369
    , 375 n. 1 (2010)).
    Amelia argues that, in rendering its decision under prong one, the court
    relied primarily on hearsay in the Division's records. Reports and testimony
    from the doctor who conducted the psychological evaluation are permissible
    forms of hearsay under the business records exception. Dr. Freedman testified
    that Amelia "acknowledge[d] at the time that seven-month-old [Alex] was in the
    room with her when [her overdose] occurred."
    Avery, Sr. asserts that the information from his June 2017 arrest contained
    in the Division's report was inadmissible hearsay because neither the reporting
    A-4590-18T1
    15
    officer testified nor was a police report from the incident admitted into evidence.
    Because neither defendant objected to the arrest testimony, Avery, Sr.'s
    argument must be reviewed for plain error. R. 2:10-2. He carries the burden of
    demonstrating that this error was "of such a nature as to have been clearly
    capable of producing an unjust result," and therefore, should not be disregarded
    by this court.
    Ibid. Had an objection
    been made, the Division could easily have
    obtained and introduced the police reports.
    The decision to terminate parental rights focuses on "the effect of harms
    arising from the parent-child relationship over time on the child's health and
    development." In re Guardianship of K.H.O., 
    161 N.J. 337
    , 348 (1999). Avery
    Sr.'s repeated failure to comply with his evaluations and rehabilitative programs
    was discussed at length by the court. Avery, Sr.'s substance abuse history and
    the recommendations of Dr. Cahill and Dr. Brown supported the conclusion that
    prong one was satisfied.
    B. Evidence of Drug Use.
    Amelia argues that the Division did not establish that the children were
    harmed by her overdose and their subsequent removal. The Division must
    establish under the first prong "that the health, safety, and development of a
    child has been or would continue to be endangered if a relationship with the
    A-4590-18T1
    16
    parents were allowed to continue." 
    T.D., 454 N.J. Super. at 380
    . "[A] parent's
    inability to provide care is harmful and can endanger the health of a child."
    Ibid. The "best interests
    standard does not concentrate on a single or isolated harm or
    past harm as such. Although a particularly egregious single harm can trigger
    the standard, the focus is on the effect of harms arising from the parent -child
    relationship over time on the child's health and development." 
    K.H.O., 161 N.J. at 348
    .
    Drug use during pregnancy constitutes harm to the child "when that drug
    use results in the child being born addicted to drugs with the attendant suffering
    caused by such addiction."
    Id. at 349-50.
    Our Supreme Court has stated that
    "the attention and concern of a caring family is 'the most precious of all
    resources.'" In re Guardianship of D.M.H., 
    161 N.J. 365
    , 379 (1999) (quoting
    N.J. Div. of Youth & Family Servs. v. A.W., 
    103 N.J. 591
    , 613 (1986)). "A
    parent's withdrawal of that solicitude, nurture, and care for an extended period
    of time is in itself a harm that endangers the health and development of the
    child."
    Ibid. Alex suffered withdrawal
    symptoms at birth as a result of Amelia using
    drugs while pregnant. Amelia admitted during her psychological evaluation
    with Dr. Freedman that she used heroin on the night in question and was
    A-4590-18T1
    17
    awakened by paramedics.       Amelia classified it as a "suspected overdose"
    because Narcan was not used, however, she was found unconscious, pale and
    with blue lips. Evidence that she overdosed when caring for her infant son is
    supported by substantial credible evidence in the record.
    Amelia's drug use caused the removal of her children. Both parents
    continued to use drugs despite the Division's attempts to help.       The court
    properly found that the Division proved by clear and convincing evidence that
    the children's "safety, health or development has been or will continue to be
    endangered by the parental relationship."
    IV. Prong Two.
    The second prong under N.J.S.A. 30:4C-15.1(a)(2) requires the court to
    determine whether "[t]he 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." The court
    "is permitted to consider whether the parents would correct their conduct within
    the reasonably foreseeable future." 
    T.D., 454 N.J. Super. at 380
    .
    A. Amelia.
    Amelia asserts that the court improperly relied on the fact that she was in
    the early stages of recovery and acknowledged that "she still had work to do
    A-4590-18T1
    18
    before she could independently parent her children." Amelia notes that she has
    not used substances since February 2019 and, pending the Division's inspection,
    secured a home for her sons. Amelia argues that the record supports a finding
    that she "had progressed in her rehabilitation to the point that she was 'able to
    remove the danger' facing her children."
    The record, however, does not demonstrate that she will be able to parent
    the children in the foreseeable future. Although Amelia made more progress
    than Avery, Sr., she acknowledges that she is not yet able to care for her
    children.
    B. Avery, Sr.
    Based upon the Division's reports and the expert testimony, overwhelming
    evidence was presented to establish Avery, Sr.'s continued substance abuse
    would be harmful to the children. Avery, Sr. stresses that he participated in
    detox programs prior to the start of the guardianship litigation, between
    November and December 2017.
    He tested positive for fentanyl in April 2019. The Division's June 2019
    substance abuse evaluation reported that he tested positive for fentanyl on the
    following dates: November 20, 23; December 14 and 24, 2018, and April 23,
    2019. Avery, Sr. was clearly not able to remediate his drug use. The history of
    A-4590-18T1
    19
    failed drug tests and substance abuse treatment programs shows that Amelia and
    Avery, Sr. have been unwilling or unable to eliminate the harm facing their
    children or to provide a safe home.
    V. Prong Three.
    The Division must prove under prong three that "[t]he [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." N.J.S.A. 30:4C-
    15.1(a)(3).
    The court discussed on the record its factual findings regarding the
    services provided by the Division to Amelia and Avery, Sr., beginning in 2016
    with a SPP. The court reviewed the timeline of events that led to Amelia and
    Avery, Sr. being referred to substance abuse evaluations, psychological
    evaluations, urine screens, supervised visitation, short-term counseling,
    substance abuse inpatient treatment programs, short-term residential programs,
    detox programs, and hair follicle testing.
    Following the discussion of the services provided to defendants, the court
    noted that its findings related to prongs one and two, as well as to "the Division's
    A-4590-18T1
    20
    reasonable efforts." The Division made many efforts to rehabilitate the parents
    during its three-year involvement with this family.
    The Division assessed alternative placements for the children and ruled
    out several relatives, including the maternal aunt, whose family was not
    interested in being a caregiver, Lisa, who failed to complete the background
    check, as well as Gina and Gail. Gina was ruled out due to her criminal history
    and mental health history. Gail was ruled out based on her substance abuse and
    the results of psychological evaluations following the removal of the children.
    Amelia and Avery, Sr. offered no other alternatives to termination.
    VI. Prong Four.
    Prong four of the best interests test, that "[t]ermination of parental rights
    will not do more harm than good," N.J.S.A. 30:4C-15.1(a)(4), "serves as a fail-
    safe against termination even where the remaining standards have been met."
    
    E.P., 196 N.J. at 108
    (quoting N.J. Div. of Youth & Family Servs. v. G.L., 
    191 N.J. 596
    , 609 (2007)). "The question ultimately is not whether a biological
    mother or father is a worthy parent, but whether a child's interests will best be
    served by completely terminating the child's relationship with that parent."
    Ibid. "Our courts have
    recognized that a child's relationship with a parent is of such
    significance that doubts are to be resolved against its destruction." N.J. Div. of
    A-4590-18T1
    21
    Youth & Family Servs. v. F.M., 
    375 N.J. Super. 235
    , 264 (App. Div. 2005)
    (quoting In Re Guardianship of J.E.D., 
    217 N.J. Super. 1
    , 15-16 (App. Div.
    1987)).
    "It also is widely understood that a 'child deeply needs association with a
    nurturing adult' and that 'permanence in itself is an important part of that
    nurture.'" 
    E.P., 196 N.J. at 108
    . (quoting 
    A.W., 103 N.J. at 610
    ). N.J.S.A.
    30:4C-15.1(a)(4) is deemed satisfied "where it is shown that the bond with
    [resource] parents is strong and, in comparison, the bond with the natural parent
    is not as strong." 
    K.H.O., 161 N.J. at 363
    .
    The Division "should offer testimony of a 'well-qualified expert who has
    had [the] full opportunity to make a comprehensive, objective, and informed
    evaluation' of the child's relationship with both the natural parents and the
    [resource] parents." 
    M.M., 189 N.J. at 281
    (quoting In re Guardianship of J.C.,
    
    129 N.J. 1
    , 19 (1992)). If contrasting expert opinions are presented, "[t]he court
    has a responsibility, albeit difficult, to make sense of the competing views
    presented by the experts and to sift the attitudes of all witnesses. Because the
    welfare of a child is the central concern, it is important that courts thoroughly
    inform themselves of the subject matter." 
    J.C., 129 N.J. at 22
    .
    A-4590-18T1
    22
    The court discussed in detail the experts' opinions as to the children's
    bonds with their biological parents as well as their resource parents. The court
    found that the experts agreed that Avery, Jr. has a "strong affectionate bond"
    with Avery, Sr. and "a positive bond" with Amelia that is "not quite as strong"
    as with Avery, Sr. The experts did not dispute that despite Avery, Sr.'s bond
    with his children, he failed to demonstrate his ability to parent. As for Alex, the
    experts concluded that he did not have a strong bond with either parent.
    The experts "opined that the [resource] parents have a secure bond with
    the children."    The Division records, admissible as previously discussed
    pursuant to N.J.R.E. 803(c)(6), reflect that the resource parents wished to adopt
    the two boys. The court noted that defendants' expert referred to the resource
    parents as "psychological parents," who the court described as "the folks that
    the children know will provide for them and keep them safe on a day-to-day
    basis." While the court acknowledged that the experts had different theories
    about how termination would affect the children, the court found both experts
    to be highly qualified, competent and credible.
    The family court has the authority to make fact and credibility findings
    and we defer to those findings, unless the decision was unsupported by
    substantial and credible evidence. 
    F.M., 211 N.J. at 448
    . The court focused on
    A-4590-18T1
    23
    the children's need for a stable home, their "need to know where they're growing
    up." With neither parent capable of parenting the children, and with permanency
    desperately needed, termination of parental rights and adoption by the resource
    parents was clearly in the children's best interests.
    VII. Due Process Claim.
    Amelia challenges the court's decision to proceed with closing arguments,
    without objection, on the final day of testimony after the court excused
    defendants from listening to the remainder of cross-examination due to a
    doctor's appointment, and after advising them that closing arguments would be
    presented on another day.      She certainly had access to a transcript of the
    proceedings and offers no reason why the presentation of closing arguments in
    her absence violated her due process rights. Her argument is without sufficient
    merit to require further discussion in a written opinion. R. 2:11-3(e)(1)(E).
    In this unfortunate family situation, the Division presented substantial
    credible evidence to support the family court's finding by clear and convincing
    evidence that termination of parental rights was in the best interests of the
    children. No "injustice" requires our intervention. See 
    F.M., 211 N.J. at 448
    .
    Affirmed.
    A-4590-18T1
    24