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Superior Court of New Jersey, Appellate Division.


DOCKET NO. A–5330–12T4

    Decided: April 24, 2014

Before Judges Messano and Lisa.Joseph E. Krakora, Public Defender, attorney for appellant (Howard Danzig, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel;  Kristen N. Collar, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief).

Defendant K.S. appeals from the June 19, 2013 order of guardianship terminating her parental rights to her daughter, A.W., who was born on August 28, 2002.1  Defendant argues that the Division of Child Protection and Permanency (Division) failed to present clear and convincing evidence to satisfy its burden of establishing all four prongs of the best interests of the child test.   As part of her argument, defendant contends there was no nexus between the action complained of and the alleged danger to the child.   The law guardian supported termination in the trial court, and on appeal joins the Division in urging us to affirm.   We are satisfied from our review of the record that the Division presented sufficient evidence to support the trial court's finding that all four prongs were clearly and convincingly established.   Accordingly, we affirm.


Defendant is the mother of three daughters.   A.W. is the oldest.   The others are M.S., who was born on May 29, 2008, and S.V., who was born on March 19, 2013.   Defendant has voluntarily surrendered her rights to M.S. and S.V., in favor of adoption by defendant's mother, Mrs. H. The two younger daughters live with Mrs. H., and, as of the time of the trial of this case in May and June 2013, were in various stages of the process of being adopted by their grandmother.

A.W. also lives with her sisters in Mrs. H's. home.   She was removed from defendant's custody in June 2011.   A.W. was initially placed with a family friend.   In March 2012, A.W. was placed with Mrs. H., and she has resided there ever since.

After A.W.'s birth, defendant and A.W. lived with the family of A.W.'s father.   The father did not live there, as he was incarcerated at the time.   When A.W. was still very young, defendant was diagnosed with Lupus, a debilitating illness, for which she has been hospitalized from time to time.   After that diagnosis, defendant and A.W. moved in with Mrs. H., who helped defendant with her medical condition and helped to care for A.W. Defendant was also diagnosed with other medical conditions, including arthritis, high blood pressure, diabetes, and kidney disease.

Although defendant suffered from these health conditions, she had been able to work from time to time, usually in retail jobs.   She holds a GED and attended college for about one-and one-half years.   Further, there is no assertion on defendant's part nor any evidence to suggest that defendant's medical conditions have prevented her from being able to comply with services offered by the Division.

The Division's initial contact with defendant occurred when M.S. was born.   M.S. tested positive for drugs, which was reported to the Division.   The Division required defendant to submit to random urine screenings for the next four months.

Soon after M.S. was born in 2008, defendant, along with A.W. and M.S., moved in with M.S.'s father.   M.S.'s father is not A.W.'s father.   A.W. was then five years old.   The relationship between defendant and M.S.'s father was unstable and marked by domestic violence incidents.   Defendant admits to using marijuana during this time on a regular basis.

In October 2009, defendant left M.S. with a babysitter purportedly for two weeks.   After defendant was gone for about six weeks with no contact, the babysitter reported the situation to the Division.   After investigation, the Division substantiated neglect with respect to M.S. and removed M.S. from defendant's care.   M.S. was then placed with Mrs. H.

On June 16, 2011, defendant submitted to a psychological evaluation, upon the Division's referral, regarding her ability to parent M.S. The evaluation was conducted by Dr. Karen D. Wells.   Dr. Wells reviewed documents provided by the Division and administered various assessments and tests.   Dr. Wells concluded that, based upon all of the information provided and the results of testing, defendant lacked the psychological or emotional capacities to assume even minimal care for M.S.

Dr. Wells noted that defendant was homeless, underemployed, and had recently tested positive for cocaine.   She found that defendant lacked the stability and “wherewithal to meet her own needs” and that any child placed in her care would likely be exposed to risks.   Dr. Wells was of the view that, even with additional time, defendant was unlikely to achieve the “capacity to effectively and safely parent” a child.   Dr. Wells further observed that defendant had been essentially non-compliant with the services offered by the Division.   She recommended that permanency planning independent of defendant be considered to allow “three-year-old [M.S.] the benefits of a safe, secure, and loving home and family life.”

On June 22, 2011, the Division received a new referral after defendant tested positive for cocaine and marijuana.   The Division's investigation led to a finding that defendant lacked a stable living environment, and the Division executed an emergency removal of A.W. After A.W.'s removal, defendant became homeless.   She had been living with A.W.'s paternal grandparents.   She moved from place to place, often losing contact with her caseworker.

The Division referred defendant for various services at organizations including Multi Cultural Services, Jewish Family Vocational Services, Great Expectations, and Meridian.   These agencies would provide assistance with drug treatment, personal counseling, housing, medical care, obtaining employment, and the like.   The Division offered transportation for defendant.   Defendant was persistently non-compliant with the offered services, repeatedly being terminated for non-attendance or other forms of non-compliance.

On January 9, 2013, Dr. Wells conducted another psychological evaluation of defendant to evaluate her suitability for potentially resuming parental care and responsibility for A.W. After conducting several tests and reviewing defendant's lifestyle since her last evaluation, Dr. Wells concluded that “the choices [defendant] makes and the associated circumstances thwart her capacity for effective parenting, with no indication that she will be capable now or within the foreseeable future.”   Dr. Wells recommended that the Division continue to pursue guardianship of A.W. as a means of establishing permanency by way of adoption by Mrs. H.

On that date, Dr. Wells also conducted a bonding evaluation between defendant and A.W. She found a “mutual, intact and secure parent-child bond.”   Dr. Wells observed defendant “to be loving, attentive, and child-focused during her interactions with [A.W.].” Nevertheless, Dr. Wells opined that defendant lacked the emotional and psychological wherewithal to resume A.W.'s care.   She stated:  “Lacking in personal stability, with her housing yet to be determined, and continuing to engage in substance abuse, including during her recent pregnancy, [defendant] has made no progress in addressing the issues which initially resulted in [A.W.'s] placement independent of her care.”   Dr. Wells recommended that defendant surrender her parental rights to Mrs. H.

On February 27, 2013, Dr. Wells conducted a bonding evaluation between Mrs. H. and A.W. She found a strong bond between them and stated:  “Unfortunately, while neither of [A.W.'s] parents have demonstrated the capacity to provide her with a safe, secure, and stable home and family life, fortunately, her grandmother possesses the capacity, wherewithal, desire and commitment to ensuring her well-being and providing [A.W.] with the love, care, and nurturance that she needs and deserves.”   Dr. Wells reiterated her recommendation that Mrs. H. adopt A.W.

On March 19, 2013, when defendant gave birth to S.V., defendant tested positive for marijuana and Oxycodone.2  S.V. was not subjected to a drug screen.   The Division removed S.V. immediately after her birth and placed her with Mrs. H.

On April 29, 2013, defendant's expert, Dr. James R. Reynolds, a psychologist, conducted a bonding evaluation of defendant and A.W. Dr. Reynolds found that A.W. had a safe and secure attachment to her mother, who provided an “appropriate source of information, guidance, and supervision” for her daughter.   Dr. Reynolds concluded that A.W. “would likely experience severe and enduring harm if contact with [defendant] is terminated.”   He continued, however, that it appeared unlikely that such contact would be terminated because A.W. was in Mrs. H.'s care and defendant was having regular and meaningful contact with A.W.

Indeed, during the two years from A.W.'s removal until the time of trial, defendant visited her daughters at her mother's home regularly, at least five days a week.   The relationship between defendant and her daughters remained excellent, as did the relationship between defendant and defendant's mother and between Mrs. H. and the children.   A.W. was prospering in this arrangement.   She was an honor student.   Defendant often helped her with her homework and projects.

Mrs. H. wanted to adopt A.W., along with her two younger sisters.   Mrs. H., being familiar with kinship legal guardianship (KLG) based upon her dealings with the Division regarding the younger children, rejected that alternative with respect to A.W. She wanted to adopt, as her preferred means of securing permanency.

It was undisputed that A.W. loved her mother and loved her grandmother.   Her expressed preference was to live with her mother if possible.   If not, she expressed that she would be content to continue living with her grandmother, with whom she was very happy.   At trial, the Division entered into evidence voluminous records, reports, and other relevant documents.   The Division produced two witnesses, a caseworker and Dr. Wells.   Defendant testified on her own behalf and presented the testimony of Dr. Reynolds.

The three day trial was conducted on May 23, May 24, and June 19, 2013.   The gap was necessary to accommodate Dr. Reynolds' availability.

Defendant gave her full testimony on May 24th.   She expressed her hope to be able to care for A.W. after four to six months in a drug treatment program.   Defendant also said she had recently put in an application for low-income housing, and hoped to hear something in about thirty to forty-five days.   She further acknowledged that her present living arrangements were unsuitable for A.W. She was living with a friend, the friend's two children, and the friend's parents.   Defendant presented no plan for reunification with A.W. Basically, she said she just needed more time to get things together.

When the trial resumed on June 19, defendant returned to the witness stand to relate new information to the court.   She said she had just obtained a part-time job at the local hospital taking care of patients.   She said she had been to her first orientation the previous day and would return the following week for her first day of “shadowing” other employees.   She gave conflicting accounts of how many hours she would be working and other particulars.   She also said she had been to Meridian, a drug treatment program, two days earlier for an interview or intake.   She was hopeful she would be admitted into a program.   When asked how long the program would last, she said, “I'm not quite sure, but I know it's no less than four months, so you know, eight to ten weeks, I think something like that.   I'm not quite sure, I believe that's what it is.”

At trial, Dr. Wells described the psychological evaluations of defendant she had conducted in 2011 and again in 2013, as well as the two bonding evaluations, one involving defendant and the other involving Mrs. H. Dr. Wells also explained that she had reviewed voluminous reports and records provided by the Division.   Dr. Reynolds, on the other hand, did not review any records and was provided no information regarding defendant's history or the history of defendant's involvement with the Division.   Dr. Reynolds merely performed a bonding evaluation between defendant and A.W. His brief report was limited to his observations during the forty-five minutes of that evaluation, and his testimony and opinions were narrowly limited to what he observed.

As we have described, both Dr. Reynolds and Dr. Wells agreed that a strong bond existed between A.W. and defendant.   They further agreed that severing that bond would cause harm to A.W.

Dr. Wells explained further, however, when asked whether A.W. would experience any type of severe and enduring harm if the bond were to be severed:

Sever[e] is too strong.   Harm, yes.   Enduring, it would depend on the circumstances surrounding ․ why the bond would be severed.   Because of the capacity of the care giver to provide for the child's needs, understanding of what is happening in her life, that's the biggest element anytime the bond is severed.   When the bond has been significant you have to look at whether or not the child has the emotional psychological capacities to comprehend what has occurred, and to work through therapeutically whatever conflicts, issues, or lack of coping capacities.

Simultaneously you have to look at the care giver's capacity to mitigate whatever that harm would be.   And so in this situation specifically, because [A.W.] does have the cognitive capacities, and is developmentally able to understand, coupled with the fact that she's with her maternal grandmother who could mitigate the harm, then that [harm] would not be enduring and severe.

Dr. Wells was then asked to address whether A.W. would suffer severe and enduring harm if the bond between A.W. and her grandmother were severed, in light of Dr. Wells' concerns regarding defendant's ability to provide for A.W. She responded thusly:

The thing is that if the bond were severed—We're talking about a bond as if a bond is not an emotional attachment.   A bond can exist beyond whether or not a person is in that physical presence.   I mean that goes to all of us in this room;  we have people that we are bonded to.   So the bond would not be severed.   The—If the contact was severed, if the involvement day to day was severed, that's a different story.   But the bond, she would still maintain independent of being in the actual physical care.   So I'm not sure I'm answering the question, because based on the way the question is formed, I think that the bond would stay intact.   The bond persists because it has been continuity of care, and has been developed over time.   Will she suffer harm if there was a severing of the relationship?   I can say yes, this is someone she sees as a reliable consistent care giver, and she would be torn if that were no longer to occur for her.   Of course contingent upon who would then assume care for her.

Finally, this question and answer ensued:

Q If that relationship, or the contact were severed, do you believe that [defendant] has the ability to ameliorate or mitigate the harm that [A.W.] was suffering?

THE WITNESS:  [Defendant], in my opinion, would—I don't see her as ever wanting to sever that contact and relationship between any of her children and her mother.   She—And that is referenced in my psychological evaluation.   She sees her mother and her stepfather, as persons who stand in the gap for her;  for not only her but for the children.   So in terms of could she mitigate that harm, there would be no harm.   She would maintain and need and rely on those persons to continue to have involvement, as supports for her, and as persons to fill in any potential places that she wasn't able to address.

Dr. Wells reiterated her opinion that termination of defendant's parental rights and adoption by Mrs. H. was in A.W.'s best interest.   In contrast, without any particular basis or foundation, Dr. Reynolds opined that, in his view, KLG would be appropriate in this case.


Based upon the trial evidence, the judge found that all four prongs were clearly and convincingly established.   The judge credited the testimony of Dr. Wells over that of Dr. Reynolds.   He did so because, unlike Dr. Reynolds, Dr. Wells reviewed voluminous records and reports, gaining greater perspective on defendant, her history, and her circumstances.   Further, Dr. Wells performed two separate psychological evaluations of defendant and performed comparative bonding evaluations with mother and daughter and grandmother and granddaughter.   Accordingly, the judge accepted Dr. Wells' opinions.

The judge viewed with substantial skepticism defendant's last minute testimony about entering a drug treatment program, obtaining part-time employment, and signing up for possible housing.   The judge noted that the information defendant provided was incomplete, conflicting, and very tenuous.   He then said:  “So as of today, none of that changes the issues that were raised in 2011, are still the issues that are being raised today.   We'll say parenthetically that her track history with regards to these issues is not good.   She's been in treatment programs—hasn't completed them.   She hasn't been working, she doesn't have sta[b]le housing.”   The judge further stated:  “Nothing that started this whole case two years ago has changed.”   Finally, on this topic, the judge was unpersuaded that any realistic likelihood existed that defendant would be ready to parent A.W. in six months.   He said:  “We're looking at probably a year to 18 months, at a minimum of her being free of substance, of her being working and providing a safe and stable home.   This child has been out of placement for two years.   To ask her to wait at least another 18 months to even start talking about it is just unconscionable.”

The judge also found from the testimony of the Division caseworker that Mrs. H. understood and appreciated the difference between KLG and adoption and that she wished to adopt A.W. and rejected KLG.


We now address defendant's contention that the Division failed to produce sufficient evidence to clearly and convincingly prove the four prongs of the best interests of the child test.


We first set forth the basic principles guiding our review.

“Parents have a constitutionally protected right to maintain a relationship with their children.”  N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007).   Nevertheless, that right is not absolute, and “must be balanced against the State's parens patriae responsibility to protect the welfare of children.”  N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation and internal quotation marks omitted).

When seeking to terminate parental rights, the State must prove by clear and convincing evidence each of the following four standards:

(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 In re Guardianship of K.H.O., 161 N.J. 337, 347–48 (1999).]

Application of the four-factor test requires a fact-sensitive approach, and the factors “ ‘are neither discrete nor separate.   They overlap to provide a composite picture of what may be necessary to advance the best interests of the children.’ ”  M.M., supra, 189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.Super. 235, 259 (App.Div.2005)).

“Termination of parental rights permanently cuts off the relationship between children and their biological parents.”  In re Guardianship of J.C., 129 N.J. 1, 10 (1992).   Accordingly, “the cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child [ren] harm.”  Ibid. “Presumptions of parental unfitness may not be used in [termination] proceedings ․ and all doubts must be resolved against termination of parental rights.”  K.H.O., supra, 161 N.J. at 347.

Our standard of appellate review dictates that “the family court's decision to terminate parental rights” should not be disturbed “when there is substantial credible evidence in the record to support the court's findings.”  N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)).   We “defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand;  it has a ‘feel of the case’ that can never be realized by a review of the cold record.”  Ibid. (quoting M.M., supra, 189 N.J. at 293).


Applying these principles, our review of the record satisfies us that the trial court's finding that the Division clearly and convincingly proved all four prongs of the best interests test is supported by substantial credible evidence.

Defendant argues that the proofs regarding the first prong were deficient because the Division relied solely on defendant's marijuana addiction and the unfortunate circumstance that she did not have a home of her own and was homeless from time to time.   Defendant further contends that A.W. suffered no actual injury.   As part of her argument, defendant contends that no nexus was established between her substance abuse and any alleged act of abuse or neglect.

The Division was not required to show that defendant actually harmed A.W. The potential for future harm is sufficient.  N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.Super. 418, 440 (App.Div.2001), certif. denied, 171 N.J. 44 (2002).   The trial court's essential finding on the first prong was that defendant was unable to effectively parent a child and comport her behavior so the child's needs would be met.   As a result, defendant presented a clear and convincing risk of harm to A.W. This was based on a multiplicity of factors, including defendant's persistent history of unstable living arrangements, untreated substance abuse, lack of employment, and psychological evaluations establishing her inability to parent.

We find unpersuasive defendant's argument that no causal nexus was established between her substance abuse and any alleged act of abuse or neglect.   In support of this argument, defendant relies on two abuse and neglect cases, New Jersey Division of Youth and Family Services v. A.L., 213 N.J. 1 (2013), and New Jersey Division of Youth & Family Services v. V.T., 423 N.J.Super.   320 (App.Div.2010).

In A.L., the Court reviewed “whether a court can find ‘abuse’ or ‘neglect’ of a child under Title 9 if an expectant mother uses drugs during pregnancy but there is no evidence of actual harm when the baby is born.”  A.L., supra, 213 N.J. at 8. The Court concluded that “the [drug test] records alone did not prove imminent danger or a substantial risk of harm to the newborn child.   The records, without more, revealed little about the degree of future harm posed to the newborn[.]”  Id. at 9 (emphasis added).

Similarly, in V.T., supra, a panel of this court held that where a father tested positive for cocaine and marijuana during supervised visits, but behaved appropriately during the visits, the Division failed, in the absence of expert evidence, “to demonstrate whether or not [the father] was impaired to the point of posing a risk to [the child] in a supervised setting.”  423 N.J.Super. at 331.   Thus, “in such a circumstance,” the Division failed to prove a risk of harm.  Ibid. (emphasis added).

As we have stated, unlike the situations in A.L. and V.T., defendant's substance abuse was only one of multiple factors in this case which, in combination, posed a risk of harm to A.W. Those cases are therefore materially distinguishable and are not controlling.

In another abuse and neglect case, decided after the briefs were filed in this case, a panel of this court reversed a finding of neglect where the mother of two young children became homeless “due to her ‘unbelievably poor planning.’ ”  N.J. Div. of Child Protection and Permanency v. L.W., _ N.J.Super. _, _ (App.Div.2014) (slip op. at 5).   The mother in that case acted diligently and responsibly by promptly bringing her children to the Division and seeking help after proactively but unsuccessfully seeking financial and housing assistance from appropriate governmental agencies.   Id. at _ (slip op. at 5, 9–10).   That unique sequence of events did not substantiate neglect.  Id. at _ (slip op. at 2).

L.W. is also materially distinguishable from the case before us.   The mother in L.W. found herself in an emergency situation on an isolated occasion and took appropriate steps on her own initiative to protect her children.  Id. at _ (slip op. at 10.)   Further, the temporary homelessness was the sole basis underlying the finding of neglect.  Ibid. Here, defendant's homelessness and unstable and unsuitable housing arrangements were only one aspect of the multiple factors causing a risk of harm to A.W., and were ongoing, spanning at least the two years during which the guardianship action was pending.   Defendant did not seek help.   Instead, she was non-compliant with the help offered by the Division to obtain housing, among other things.

As to the second prong, defendant argues that although “[i]t is undisputed that [she] was unable to provide a safe and stable home for her child for the past two years[,] ․ she did it for nine years before and is about to again.”   As she argued before the trial court, defendant urges us to simply give her more time to address the circumstances which caused A.W.'s removal.   The trial judge rejected this proposition, and so do we.   In addition to finding the overriding need for permanence, safety, security, and stability, the judge found that the evidence overwhelmingly established defendant's persistent resistance to and non-compliance with services offered by the Division, which could have helped her eliminate the harm facing A.W. The judge also found no reasonable prospect that defendant would successfully address these issues in the foreseeable future.

The second prong requires a showing of an unwillingness or inability to eliminate the harm facing the child or to provide a safe and stable home for the child and that delay of permanent placement will add to the harm.   See K.H.O., supra, 161 N.J. at 352.   The two components of harm embodied in the first and second prongs are related, and “evidence that supports one informs and may support the other[.]”  In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).   As with the first prong, we are satisfied that the evidence overwhelmingly supports the court's finding that defendant remains unable to care for her child due to the multiplicity of factors we have described and based on the psychological testing.

The third prong requires the Division to undertake “reasonable efforts” to provide necessary services to help the parent to correct the circumstances which led to the removal, and requires the court to consider alternatives to termination.  N.J.S.A. 30:4C–15.1(a)(3).  “The reasonableness of the Division's efforts depends on the facts in each case.”  A.G., supra, 344 N.J.Super. at 435.  “The diligence of [the Division's] efforts on behalf of a parent is not measured by their success.   Thus, the parent's failure to become a caretaker for his [or her] children is not determinative of the sufficiency of [the Division's] efforts at family reunification.”  D.M.H., supra, 161 N.J. at 393.

Under the circumstances presented here, the Division made reasonable efforts in providing the services we have described.   However, defendant was persistently non-compliant.   It is unclear when or if defendant will ever be ready to parent.   See N.J. Div. of Youth & Family Servs. v.C.S., 367 N.J.Super. 76, 111 (App.Div.) (“Children have their own rights, including the right to a permanent, safe and stable placement.”), certif. denied, 180 N.J. 456 (2004).   And, the Division considered alternatives to termination of parental rights, including placement with family members.  N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J.Super. 515, 527 (App.Div.2003) (“It is well established that it is the Division's policy to place children with relatives whenever possible.”).

Finally, defendant argues that the Division failed to satisfy the fourth prong because it failed to establish that termination would not do more harm than good.   There is an inherent risk of harm to a child associated with termination of parental rights.  K.H.O., supra, 161 N.J. at 355.   Therefore, under this prong, the Division need not prove that A.W. will suffer no harm, but rather the issue is whether, after considering both relationships, “the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents.”  Ibid. Thus, the fourth prong is “related to the first and second” prongs because they all require a consideration of harm to the child caused by the parent-child relationship.  D.M.H., supra, 161 N.J. at 384.

Guided by this principle, the judge relied upon Dr. Wells' testimony that defendant “cannot provide safety, security or permanence for [A.W.].” The judge noted that Dr. Wells evaluated defendant over a two-year period, and that during that time, “[n]othing ha[d] changed.”   The judge rejected Dr. Reynolds' opinion that termination of defendant's parental rights would cause A.W. to suffer enduring harm.   As we have stated, the judge discounted Dr. Reynolds' opinions because he had a “limited perspective” as he “never did a bonding evaluation with the grandmother.”

The judge acknowledged, as did Dr. Wells, that A.W. might suffer some harm from the termination of her mother's parental rights.   Nevertheless, the judge relied on Dr. Wells' analysis, which concluded that “having looked at everybody, studied everybody, done the comparison that the current care giver as such, that she would be better able to mitigate whatever harm the child may suffer th[a]n mom would.”   The judge concluded that the evidence clearly and convincingly established “that the maternal grandmother [was] going to provide a safe, stable, secure, and permanent home for [A.W.].” Accordingly, the judge concluded that any harm to A.W. “would not be enduring and severe.”

In conclusion, we are satisfied that the evidence supports the judge's findings that the Division established by clear and convincing evidence all four prongs of the best interests test.   We have no occasion to disturb those findings on appeal.   The judge properly applied the correct principles of law to his factual findings, and we find no error in the result reached.



FN1. A.W.'s father voluntarily surrendered his rights, and is not involved in this appeal..  FN1. A.W.'s father voluntarily surrendered his rights, and is not involved in this appeal.

FN2. In her trial testimony, defendant said she was prescribed Oxycodone for use in connection with her Lupus condition.   Defendant's caseworker testified that defendant never reported to the Division that she had been prescribed this drug.   The judge made no factual finding in this regard..  FN2. In her trial testimony, defendant said she was prescribed Oxycodone for use in connection with her Lupus condition.   Defendant's caseworker testified that defendant never reported to the Division that she had been prescribed this drug.   The judge made no factual finding in this regard.


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