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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5016-18
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
K.I.B.,
Defendant,
and
E.W.,
Defendant-Appellant. ________________________
IN THE MATTER OF THE GUARDIANSHIP OF A.Q.B. and A.A.I.B., minors. ________________________
Submitted October 28, 2020 – Decided March 1, 2021
Before Judges Vernoia and Enright. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0016-19.
Joseph E. Krakora, Public Defender, attorney for appellant (Robyn A. Veasey, Deputy Public Defender, of counsel; Lauren Derasmo, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Assistant Attorney General, of counsel; Merav Lichtenstein, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.Q.B. (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Lynn B. Norcia, Designated Counsel, on the brief).
PER CURIAM
Defendant E.W.1 (defendant) appeals from a Family Part judgment
terminating his parental rights to the son, A.Q.B. (Alan), he shares with
defendant K.I.B. (Kara). Defendant contends we should reverse the judgment
because the court erred by finding the Division of Child Protection and
Permanency (the Division) presented clear and convincing evidence satisfying
1 We employ initials and pseudonyms to protect the privacy of the parties and for ease of reference. R. 1:38-3(d)(12).
A-5016-18 2 each of the prongs of the best-interests-of-the-child standard embodied in
N.J.S.A. 30:4C-15.1(a). Unconvinced, we affirm.
I.
Alan was born in May 2011. Defendant was not identified as Alan's father
on the child's birth certificate. It is unclear with whom Alan resided immediately
following his birth, but there is no evidence he lived with or was cared for by
defendant at that time.
In July 2014, the Division received a referral that defendant was shot
while leaving a cookout with Alan in his care. Kara was incarcerated at the time
of the shooting. During the Division's investigation of the referral, defendant
reported that his mother, W.W. (Wendy), had custody of Alan. Defendant also
explained he had been incarcerated for two years, had been released "over three
months ago," and was living in his mother's home. Based on defendant's
statement to the Division during its investigation of the referral, from
approximately April 2012, eleven months after Alan was born, until April 2014 ,
when Alan was almost three, defendant was incarcerated and unavailable to care
for Alan.
A-5016-18 3 Wendy reported she was granted custody of Alan in December 2013 and
had been caring for the child prior to that time. The investigation also revealed
that following his release from prison in April 2014, defendant resided in
Wendy's home. During the Division caseworker's interview of Alan, the child
referred to defendant as "daddy" and explained that defendant and Wendy made
food for him, and defendant "help[ed] him get dressed after he bathe[d]." The
Division determined the allegations of abuse and neglect against defendant
arising from the shooting incident were not established.
Approximately one year after the shooting incident, defendant was
arrested in New York on a robbery charge. He was later convicted and sentenced
to prison. Since his July 2015 arrest on the robbery charge, defendant has been
incarcerated in various New York jails and correctional institutions and has been
unavailable to care for or parent Alan. At the time of the June 2019 guardianship
trial, it was anticipated defendant would be released from custody in January
2020.2
2 In her brief on appeal, the Law Guardian reports defendant was not released in January 2020 and that defendant's conditional release date was August 23, 2020 and maximum release date was July 5, 2021. We do not rely on this information, which was not before the trial court, in our consideration of defendant's challenge to the guardianship order.
A-5016-18 4 The Division next became involved with Alan in July 2016 when it
received a referral that Kara had been arrested for shoplifting. 3 Kara was
incarcerated for a few days as a result of the arrest, and the Division determined
Alan was with Kara's sister, with whom Kara and Alan were living at that time.
The investigation revealed Kara had a court order showing she "just recently"
had sole custody of Alan returned to her. The Division determined the referral
for abuse or neglect was not established, and Alan remained in Kara's custody.
A "family friend" of Kara's, D.H. (Dana), testified that in the months prior
to October 2016, Kara left Alan in her home. Kara was incarcerated during that
time. Following her release from incarceration in October 2016, Kara took Alan
from Dana's care and returned with Alan to live at her sister's home. Just over
a week later, the Division received a referral that Alan had missed nine days of
school. During the Division's investigation, Kara reported she had transferred
Alan to a school closer to her sister's home, and the Division determined the
abuse or neglect referral was not established.
Dana testified Kara gave birth to a daughter, A.A.I.B. (Alice), on
November 20, 2016, and, two weeks later, Kara returned to Dana's home with
Alan and Alice. Since that time, with the exception of a one-month period in
3 Kara advised she was charged with shoplifting and resisting arrest. A-5016-18 5 2017 when the children were removed while the Division qualified Dana as a
resource parent, Dana has cared for, and provided a home for, Alan and Alice.
In January 2017, the Division discovered Kara was no longer living with
her sister and that the children were living with Dana and her mother, C.H.
(Chris). The Division spoke with Alan, who reported that he enjoyed living with
Dana and Chris, and that he felt safe with them. During a February 1, 2017
Division visit to Dana's home, Kara said she wanted to share joint custody of
the children with Dana.
On March 2, 2017, the Division determined that Dana's home was clean
and well-kept and Alan was happy living there. Four days later, Dana advised
the Division that Alan "pok[ed] himself in the stomach with a . . . pencil" at
school, "said he wanted to kill himself," and "told staff members that he would
defecate on himself." He was not permitted to return to school until he received
a "psychiatric assessment."
The Division was unable to locate Kara to obtain permission for the
assessment.4 On March 8, 2017, the Division conducted a Dodd removal of the
4 The Division later learned Kara was incarcerated at the time. On March 8, 2017, Kara told the Division she was incarcerated from February 28, 2017, through March 7, 2017, for driving under the influence and possession of marijuana.
A-5016-18 6 children from Dana's home because it did not meet the licensing standards for a
resource home.5 The home had insufficient bedroom space and Dana's brother,
who had a criminal conviction, resided there.
On March 8, 2017, the court entered an order granting the Division care,
custody, and supervision of Alan and Alice. On that date, Kara informed the
Division she wanted the children placed together, and that Wendy was willing
to take both children. The order reflects that defendant's whereabouts were then
unknown to the Division.
At a March 22, 2017 hearing, the court continued the care, custody, and
supervision of the children with the Division. The court's order reflects that
defendant was not provided notice of the hearing. 6 The court's order granted
Kara and defendant supervised visitation with Alan.
On April 10, 2017, the Division returned the children to Dana's care after
her home became eligible for licensing as a resource home. Two days later, the
Division noted defendant was "incarcerated at Rikers Island." That same day,
5 A "Dodd removal" is an emergency removal of a child from the custody of a parent without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. 6 The record also does not disclose if the Division knew of defendant's whereabouts at that time. A-5016-18 7 Wendy "informed the Division that she [was] interested in caring for her
grandson [Alan] and [was] also willing to care for [Alice]." The Division
caseworker noted that Wendy would be assessed "as a possible resource for [the]
children."
The court held proceedings on April 27, June 28, and July 31, 2017, but
defendant was not noticed of those hearing dates, nor represented by counsel.
On July 31, 2017, the court required that defendant be served and produced for
the next hearing. In August 2017, the Division noted defendant's transfer to a
correctional facility in Coxsackie, NY, and stated it would "determine if
[defendant could] be serviced in . . . [his] facility as well as if [he had] an ability
to plan for [Alan] at [that] time."
The Division did not serve defendant with a copy of its complaint or
contact him concerning an October 30, 2017 hearing. In the court's order of that
date, it again required that defendant be served. At the next hearing on
December 5, 2017, defendant first appeared via telephone with counsel.
Defendant thereafter appeared telephonically at all court proceedings, except on
a number of occasions when telephone connections with the correctional facility
were not possible or defendant declined to appear. In those instances,
A-5016-18 8 defendant's attorney waived defendant's right to be present. Defendant appeared
telephonically on each day of the guardianship trial.
The Division sent defendant letters on January 31, March 28, and May 10,
2018, providing its contact information, notifying defendant of upcoming court
dates, and advising that Alan was diagnosed with attention-
deficit/hyperactivity-disorder and oppositional defiant disorder and was taken
for "an assessment [on April 11, 2018] to determine if there [was] a need for
psychotropic medication." The Division also provided defendant with copies of
the letter from the hospital and an assessment report concerning Alan.
On June 4, 2018, the Division changed its goal "from [r]eunification to
[a]doption." The court's permanency order noted that, at that time, defendant
"remain[ed] incarcerated in [New York] . . . and [was] not offering himself as a
plan" for Alan. At a June 18, 2018 hearing, the court ordered that Kara was
"permitted to have . . . visitation with her . . . children . . . once a month while
incarcerated." Defendant argues that "[n]o justification . . . [was given] for why
this was not ordered for [him]." However, by this time, defendant had been
relocated to a correctional facility in Altona, New York, which was "five-and-
a-half hours away" from Alan's residence.
A-5016-18 9 The Division filed a guardianship complaint on July 16, 2018, seeking to
terminate Kara's parental rights to Alan and Alice, and defendant's parental
rights to Alan.7 Defendant was subsequently served with the complaint, and, as
noted, he appeared telephonically and with counsel at all hearings in the
guardianship proceeding.
During an October 18, 2018 court conference, the Division explained it
did not intend to provide defendant with visitation with Alan at defendant's
upstate New York prison facility because defendant had advised he would not
present himself as a plan for Alan, and because he was incarcerated such a great
distance away from Alan. 8 Defendant did not object. To the contrary,
defendant's counsel asked if defendant wanted to address the visitation issue
and, in response, defendant said he did not want to say anything about it.
A Division caseworker testified during the guardianship trial that
defendant was aware of the Division's position concerning visitation, and that
7 Alice's biological father was never identified. 8 At the same hearing, defendant's counsel acknowledged that defendant did not present himself as a plan for Alan, but counsel also stated she intended to address that issue with defendant. The record shows defendant never changed his plan or indicated to the Division or court that his plan for Alan was that he would provide the child with a safe and secure home.
A-5016-18 10 he did not object or request visitation. The caseworker testified that visitation
was not offered to defendant at the upstate New York correctional facility
because the Division did not "feel . . . it was in [Alan]'s best interest to
travel . . . [ten] hours," and Alan's "hyperactivity issues" posed "safety
concerns . . . when [they] transport[ed] him." The testimony was unrefuted.
Defendant first spoke directly with a Division caseworker on November
30, 2018. During that telephone call, defendant explained he had been convicted
of second-degree robbery, that he had been incarcerated "[g]oing on five years,"
and that he had a scheduled release date fourteen months later in January 2020.
The caseworker inquired about how much contact defendant had with Alan, how
much of Alan's life defendant had been incarcerated, and what defendant's plan
was. Defendant explained his mother Wendy "stepped in[to] the parenting role"
during the first four years of Alan's life until the child went into foster care.9
Defendant stated his plan was to surrender his parental rights to Wendy or his
sister, V.W. (Verna), "ONLY," to have "his sister or mother adopt his son," and
to become integrated in planning for Alan after he was released from prison.
9 Defendant's statement is undermined by other evidence that Kara obtained custody of Alan from Wendy by early 2016, and Kara and Alan resided with Kara's sister during portions of 2016. Alan was not placed in foster care until the March 2017 Dodd removal.
A-5016-18 11 The caseworker explained the Division's plan was for "foster home
adoption." Defendant questioned how the matter could proceed to trial without
any visitation or a bonding evaluation, and the caseworker responded that a
bonding evaluation might "impact [Alan] negatively" because defendant "ha[d]
not had visitation or any contact with his son" and had "not spent time with [his]
son." Defendant told the caseworker the phone call was his first contact with
the Division since the case opened, and he wanted to speak with Alan and would
request phone contact at his upcoming December 20, 2018 court hearing. At the
hearing, however, neither defendant nor his counsel requested phone contact
with Alan. Instead, defendant's counsel explained only that defendant's "main
concern" was the Division "looking into his mother . . . and sister as placement
options" and that the "priority [was] making sure [Alan was] with his paternal
relatives."
The Division assessed several of defendant's relatives as resource parents
for Alan, including Wendy, Verna, defendant's father, E.C. (Elbert), and
defendant's relatives T.G., U.J., and I.J. T.G. was ruled out due to an "active
criminal charge"; U.J. and I.J. were ruled out due to lack of space in their homes;
and Elbert, who had a criminal history, was ruled out due to his failure to provide
required documentation. Initially, Wendy was ruled out due to a lack of
A-5016-18 12 adequate bedroom space in her apartment, and then a second time because she
had a 2008 substantiation for neglect/inadequate supervision. The Division sent
rule-out letters to Wendy, Elbert, T.G., U.J. and I.J.
Verna offered herself as a placement for the children in February 2018,
but requested her home not be assessed until she relocated. The Division
assessed her new home on September 6 and October 4, 2018, and it "sent her a
letter identifying . . . [licensing violations] with the home" that required
remediation.
In March 2019, Verna again relocated, and the Division was required to
restart the home assessment process. Verna subsequently "expressed that she
was no longer interested" and "wanted to remove herself from the . . . process."
At the guardianship trial, the Division caseworker testified that Verna said the
process was "overwhelming," and Verna testified she felt like she was "being
led on" and she "didn't want to keep taking [her own three children] through the
process of having these different people in and out of [her] house." The Division
sent Verna a rule-out letter on April 22, 2019. Neither Verna nor any of
defendant's other family members who were assessed as possible placements for
Alan appealed from the rule-out letters they received.
A-5016-18 13 In March 2019, the court ordered that defendant undergo a psychological
evaluation. On May 17, 2019, Dr. Barry A. Katz traveled to the upstate New
York facility where defendant was incarcerated to perform the evaluation, but
defendant refused to participate. Defendant told Dr. Katz "he did not want to
participate . . . because he did not want anything bad to be said about his
parenting." Defendant further opined that he thought he was going to lose the
case, and "did not want to have [the] evaluation affect any other children he may
have."
In May 2019, a paternity test for Alan was performed at defendant's
request. The results confirmed defendant is Alan's biological father.
At the guardianship trial, the Division presented testimony from Dr. Mark
Singer, who was qualified as an expert in psychology. The Law Guardian
presented Dr. Elizabeth Smith, who was qualified as an expert in psychology
and bonding. The experts conducted separate bonding evaluations with the
children and Dana, and the children and Kara. The experts made similar
observations of, and reached similar conclusions concerning, Alan's bond with
Dana, and Alan's bond with Kara. Based on their separate and independent
evaluations, each concluded Dana was Alan's psychological parent who had over
many years provided the only permanent, secure, and stable home he had known.
A-5016-18 14 They each opined that termination of Alan's relationship with Dana would cause
Alan severe and enduring emotional and psychological harm, and that
termination of Kara's parental rights would cause little harm because of the
attenuated bond Alan shared with her. Each also noted Alan referred to Dana as
"mommy," and Dr. Smith noted Alan referred to Chris as "grandma." Both
doctors also noted Alan wanted to continue to live with Dana and Chris.
Dr. Smith observed Alan "has special needs . . . that will require attention
and clinical and educational intervention over many years," and "[i]t [was her]
opinion that [Dana] is capable of effectively addressing these needs." Dr. Singer
also found Alan "clearly requires permanency" and "a high level of consistency
and stability" due to his "difficulty managing his behavior." He opined that Alan
has found permanency with Dana.
Dr. Singer concluded "allowing [Alan and Alice] to remain together would
be of significant benefit to the[m]." He opined that "[t]he totality of the data
supports [the] plan to pursue termination of parental rights so that these children
may achieve permanency through adoption by their psychological parents." Dr.
Smith similarly opined that it was important for Alan to continue to live with
Alice because maintenance of the sibling relationship permits him "to feel that
he belongs to a family."
A-5016-18 15 Dr. Smith determined it is in the children's best interests to remain
together, and "it [was her] clinical opinion . . . [Alan]'s best interest would be
served by . . . adoption by [Dana]." Dr. Smith explained the importance of
permanency for Alan because of his special needs, his history of changing
placements, and his need to trust that his caregivers will consistently be there
for him. She testified she did not speak with defendant because she understood
he did not present himself as a plan for Alan.
At trial, the Division presented the testimony of three caseworkers, who
described their interactions with Kara, Dana, defendant, and the members of
defendant's family during the Division's history with Alan and Alice. The
Division also presented Dana, who explained the care she has provided for the
children since 2016, her agreement to let defendant's mother and sister have
visitation with Alan, and her plan to allow defendant to have access to Alan.
Dana testified she wants to adopt the children to provide the consistency and
stability she did not believe either Kara or defendant could provide. She also
testified that defendant called and spoke with Alan every four months or so.
Defendant called Verna as a witness. She testified about her efforts to get
Division approval as Alan and Alice's resource parent, her frustrations with the
A-5016-18 16 process, and her decision to withdraw her request that the Division consider her
as a resource parent.
During the guardianship trial, the court terminated Kara's parental rights
to Alice pursuant an identified voluntary surrender of those right to Dana.
Following the trial, Dana adopted Alice.
On June 28, 2019, the trial court entered a judgment terminating
defendant's parental rights to Alan. The court found it "clear that [defendant's
presence in Alan's life] was not consistent or substantial," as defendant "has
been in and out of jail for most of [Alan]'s life." The court found "[defendant's]
poor judgment . . . has resulted in his inability to provide the necessary parental
solicitude, nurture[,] and care over an extended period of time," which has
"harmed [Alan's] . . . safety, health, and development causing further delay in
permanency."
The court also determined "[defendant]'s ongoing legal
troubles . . . demonstrate that he continues to exercise poor judgment indicating
that he is unable to eliminate the harm." The judge found "[e]ven if [defendant]
was released today, he would need to participate in services and stabilize
himself, thus causing a further delay in [Alan's] permanency." The court opined
A-5016-18 17 that "[t]o deny [Alan] . . . permanency in the hope that [defendant] may one day
become a stable parent is not in [Alan's] best interests."
Additionally, the court found that "[a]lthough the Division [was] limited
in the services [it could] provide . . . [it] made reasonable efforts" by "offer[ing]
. . . a psychological evaluation, paternity testing[,] and updates on [Alan]'s
progress." The court also noted "[defendant] did not request any services; he
did not even request visitation." Further, the court discussed the myriad services
provided to Kara and Alan, and the multiple assessments of defendant's relatives
as potential placements for the child, and found "[t]he efforts directed at this
family were tailored to the needs of [Kara], [defendant] and the children and for
a prolonged period."
Finally, the court also concluded termination of defendant's rights would
not do more harm than good because defendant's relationship with Alan was "not
consistent or substantial"; defendant "has not engaged in any services in order
to parent"; and defendant "did not present himself as a plan." The court also
credited the experts' opinions that Alan "is very well[-]bonded to [his resource
parent]"; he "would . . . regress behaviorally and emotionally if [he] were to lose
th[is] relationship"; and "no amount . . . of therapy or intervention could
mitigate the risk of [significant and enduring] harm." The court found that "in
A-5016-18 18 light of the numerous disruptions in [Alan]'s life, his permanency is of
paramount concern."
The court entered an order terminating defendant's parental rights to Alan.
This appeal followed. On appeal defendant argues: (1) the Division failed to
prove he harmed Alan or that he was unwilling or unable to eliminate the harm;
(2) it failed to prove it provided reasonable efforts toward reunification of
defendant and Alan or considered alternatives to termination; and (3) it failed to
prove termination of defendant's parental rights would not do more harm than
good. The Division and Alan's Law Guardian argue the court's judgment and
determination are supported by sufficient credible evidence and should be
affirmed.
II.
In reviewing a decision to terminate parental rights, "[t]he scope of our
review of [the] . . . court's factual findings is limited." N.J. Div. of Youth &
Fam. Servs. v. L.J.D., 428 N.J. Super. 451, 476 (App. Div. 2012). "A Family
Part's decision to terminate parental rights will not be disturbed when there is
substantial credible evidence in the record to support the court 's findings," N.J.
Div. of Child Prot. & Permanency v. K.T.D., 439 N.J. Super. 363, 368 (App.
Div. 2015), because the court "has the opportunity to make first-hand credibility
A-5016-18 19 judgments about the witnesses . . . [and] 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 N.J. Div. of Youth & Fam. Servs. v.
M.M., 189 N.J. 261, 293 (2007)). "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." Ibid.
(quoting N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007)).
We review the trial court's legal conclusions de novo. Manalapan Realty, L.P.
v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Parents have a "constitutional right 'to raise [their] child and maintain a
relationship with that child, without undue interference by the state.'" N.J. Div.
of Child Prot. & Permanency v. S.D., 453 N.J. Super. 511, 518 (App. Div. 2018)
(quoting N.J. Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 18 (2013)).
"Permanent termination of parental rights is the ultimate intrusion on th [is]
right . . . ." A.L., 213 N.J. at 25. However, this right is "not absolute," In re
Guardianship of K.H.O., 161 N.J. 337, 347 (1999), and must be balanced against
"[t]he State['s] . . . basic responsibility, as parens patriae, to protect children
from serious physical and psychological harm," E.P., 196 N.J. at 102.
A-5016-18 20 A court may terminate parental rights when the Division proves by clear
and convincing evidence the four prongs of the "best interests" standard under
N.J.S.A. 30:4C-15.1(a). The Division must prove:
(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 [or her] resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a); see also N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 604-11 (1986).]
These "four criteria . . . are not discrete and separate; they relate to and
overlap with one another to provide a comprehensive standard that identifies a
child's best interests." N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494,
506 (2004) (quoting K.H.O., 161 N.J. at 348).
A-5016-18 21 A.
We first consider defendant's argument the Division failed to sustain its
burden under the first and second prongs of the best-interests standard. "[T]he
two components of the harm requirement . . . 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." In re
Guardianship of D.M.H., 161 N.J. 365, 379 (1999). Defendant argues: the
Division failed to prove he has harmed Alan and the trial court "erroneously
conflated [his] incarceration with harm"; the Division "did not present
evidence . . . [he] will cause harm to [Alan] in the future"; and the court erred
by finding he could not "eliminate the harm" to Alan.
While "incarceration alone . . . is an insufficient basis for terminating
parental rights," N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 556
(2014), a parent's incarceration is "probative of whether the parent is incapable
of properly caring for the child or has abandoned the child. It is, therefore, a
factor that is unquestionably relevant to the determination of whether the
parental relationship should be terminated," In re Adoption of Children by
L.A.S., 134 N.J. 127, 136-37 (1993).
A-5016-18 22 Courts must consider a defendant's "[p]erformance as a parent before
incarceration, to what extent [the] child[] [was] able to rely on [the defendant]
as a parent, and what effort, if any, [the defendant] has made to remain in contact
with his [or her] child[] since his [or her] incarceration." R.G., 217 N.J. at 555
(quoting L.A.S., 134 N.J. at 143). "Further, the court must consider the risk
posed to [the] child[] by [the parent]'s criminal disposition; what rehabilitation,
if any, has been accomplished since [the parent]'s incarceration; and the bearing
of those factors on the parent-child relationship." Id. at 556 (third and fourth
alterations in original) (quoting L.A.S., 134 N.J. at 143-44).
Physical harm is not required under the first prong, and action or inaction
on the part of the parent that causes emotional or psychological harm to the child
satisfies the prong. In re Guardianship of K.L.F., 129 N.J. 32, 43-44 (1992).
This includes "[a] parent's withdrawal of . . . solicitude, nurture, and care for an
extended period of time," D.M.H., 161 N.J. at 379, and a child's unfulfilled need
for a permanent home, N.J. Div. of Youth & Fam. Servs. v. B.G.S., 291 N.J.
Super. 582, 591-92 (App. Div. 1996). "Courts need not wait to act until a child
is actually irreparably impaired by parental inattention or neglect" to find this
prong satisfied, D.M.H., 161 N.J. at 383, as the prong "addresses the risk of
A-5016-18 23 future harm to the child as well," N.J. Div. of Youth & Fam. Servs. v. H.R., 431
N.J. Super. 212, 222 (App. Div. 2013).
The second prong is "relate[d] to parental unfitness." K.H.O., 161 N.J. at
352. "[T]he cornerstone of the inquiry is . . . whether [a defendant] can cease
causing [his or her] child harm." In re Guardianship of J.C., 129 N.J. 1, 10
(1992). Where a parent is willing and able to eliminate the initial "harm facing
the child" and "provide a safe and stable home for the child," N.J.S.A. 30:4C-
15.1(a)(2), the second prong may still be satisfied "not on grounds of current
unfitness[,] but because of potential [enduring] harm to the child based on
separation from a [resource] parent with whom the child has bonded," J.C., 129
N.J. at 18; see also K.H.O., 161 N.J. at 363 (stating the second prong is met
where "the child will suffer . . . from the disruption of [his or] her bond with
[resource] parents"); L.J.D., 428 N.J. Super. at 494 (finding the second prong
satisfied upon "unequivocal [expert] testimony" that the child's removal "from
[the] resource parents would cause serious and enduring emotional harm").
Here, the court found defendant's "poor judgment . . . resulted in his
inability to provide the necessary parental solicitude, nurture[,] and care over an
extended period" of time, and that defendant has "harmed [Alan's] . . . safety,
health[,] and development causing further delay in permanency." The court's
A-5016-18 24 finding of harm is supported by the evidence showing defendant's poor decision
making by engaging in criminal activity resulted in his absence, through
incarceration, for all but a very small portion of Alan's life. The trial court
credited the unrefuted expert testimony that defendant's and Kara's absences
from Alan's life caused the child to suffer from a "desperate[] need[] [of]
stability," "permanency[,] and consistency." See, e.g., L.A.S., 134 N.J. at 141
(explaining the inability of an incarcerated parent "to carry out many regular and
ordinary parental duties . . . can be deleterious to the emotional and
psychological condition of the children").
Indeed, defendant has been available to parent nine-year-old Alan only
during the fifteen-month period between April 2014 and July 2015, and,
according to defendant's statement to the Division caseworker, during that time
Wendy had custody of, and cared for, Alan while defendant lived with them.10
A child's unfulfilled need for a permanent home constitutes harm under the first
prong of the best-interests standard, B.G.S., 291 N.J. Super. at 591-92, and the
record supports the court's determination the Division presented clear and
convincing evidence defendant had caused, and would continue to cause, Alan
harm by depriving him of the permanency to which he is entitled. Indeed, the
10 Alan was eight years old at the time of the June 2019 guardianship trial. A-5016-18 25 evidence established defendant consistently communicated that he did not
intend to offer himself as a plan to provide Alan with a permanent, safe, and
secure home, even after his release from incarceration.
The court also determined the Division proved that defendant posed a risk
of future harm to Alan. The court's finding is supported by defendant's decision
not to offer himself as a person who would provide Alan with a permanent home,
as well as by the unrefuted expert testimony that Alan's loss of Dana as his
caretaker and psychological parent would cause "a significant, negative
reaction. . . . [that] would be . . . enduring" and would cause Alan to further
"regress emotionally and behaviorally." See In re Guardianship of J.E.D., 217
N.J. Super. 1, 16 (App. Div. 1987) (finding "where the child has been in
[resource parent] care and has developed a 'parent-child' relationship," the
"destruction of such a relationship is itself . . . harm to the child"). The court's
determination the Division sustained its burden under the first prong of the
statutory standard is supported by substantial credible evidence.
The second prong may be satisfied "not on grounds of current unfitness[,]
but because of potential [enduring] harm to the child based on separation from
a [resource] parent with whom the child has bonded." J.C., 129 N.J. at 18; see
also J.E.D., 217 N.J. Super. at 16. As noted, the Division's and Law Guardian's
A-5016-18 26 experts not only found the risk of significant and enduring harm to Alan if his
relationship with Dana is severed, but Dr. Smith also concluded that no "amount
or kind of therapy or intervention could mitigate the risk." The evidence
establishing the harm that will result from termination of Alan's relationship
with Dana satisfies the second prong. J.C., 129 N.J. at 18-19; J.E.D., 217 N.J.
Super. at 16.
Additionally, and as noted, the evidence shows defendant has consistently
stated he does not intend to provide Alan with a permanent home. That is,
defendant has no desire or plan to provide Alan with a permanent home. His
consistent position has been that permanency for Alan should be provided by
either Wendy or Verna. Defendant does not seek to serve as Alan's custodial
parent or to assume responsibility for providing the safe, secure, and permanent
home Alan deserves. Thus, by his own admissions, defendant is unwilling to
address or remedy the harm caused by the lack of permanency that characterized
Alan's life prior to his placement with Dana. Defendant has not, and does not,
present himself as a plan to address the harm facing Alan—further delay in
providing Alan with the safe and secure home and permanency Dana has
provided for many years, and promises to continue to provide through adoption.
A-5016-18 27 Defendant challenges the court's finding that his "ongoing legal
troubles . . . demonstrate that he continues to exercise poor judgment indicating
that he is unable to eliminate the harm." The court also found defendant "has
not engaged in any services" and "refused to participate" in a court ordered
psychological evaluation, and that "[e]ven if [defendant] was released today, he
would need to participate in services and stabilize himself, thus causing a further
delay in [Alan]'s permanency."
Defendant contends the court's findings are in error because he does not
have any parenting deficiencies or mental health issues that render him unable
to parent Alan, and he is not in need of any services to permit him to ably parent
Alan and provide Alan with a safe and secure home. His self-serving,
conclusory assertions ignore that he was offered a psychological examination so
the nature and extent of the issues that have caused him to engage in the ongoing
criminal activity that have rendered him wholly unavailable to parent Alan could
be identified. He refused the examination, and the benefits it may have yielded,
based solely on his concern that it might affect his entitlement to parent "other
children he may have." His refusal simply confirms he is unwilling to take the
steps necessary to eliminate the harm facing Alan and is unwilling to provide
Alan with a safe and stable home. See N.J.S.A. 30:4C-15.1(a)(2).
A-5016-18 28 In sum, the court's finding defendant has caused and will continue to cause
Alan harm by depriving him of permanency and by severing the strong bond
Alan has with his psychological parent, Dana, is amply supported by the
evidence. Similarly, the court's determination defendant is unwilling and unable
to remediate the harm is supported by substantial credible evidence. We discern
no basis to disturb the court's findings under the first and second prongs of the
best-interests standard. N.J.S.A. 30:4C-15.1(a)(1) to (2); see also K.H.O., 161
N.J. at 353-54.
B.
Defendant also contends the court erred by finding the Division sustained
its burden of establishing it provided reasonable efforts to enable him to
"become a functioning parent and caretaker." K.H.O., 161 N.J. at 354; see also
N.J.S.A. 30:4C-15.1(a)(3) (requiring the Division to prove it made "reasonable
efforts to provide services to help the parent correct the circumstances which led
to the child's placement . . . and the court has considered alternatives to
termination of parental rights"). "Reasonable efforts" are defined as:
attempts by an agency authorized by the [D]ivision to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:
A-5016-18 29 (1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development, and health; and
(4) facilitating appropriate visitation.
[N.J.S.A. 30:4C-15.1(c).]
The focus is on the Division's efforts toward "reunification of the parent
with the child and assistance to the parent to correct and overcome those
circumstances that necessitated the placement of the child into [resource parent]
care." K.H.O., 161 N.J. at 354. However, "[t]he diligence of [the Division]'s
efforts . . . is not measured by their success," but rather "against the standard of
adequacy in light of all the circumstances." D.M.H., 161 N.J. at 393.
"Whether particular services are necessary in order to comply with the
diligent efforts requirement must . . . be decided with reference to the
circumstances of the individual case before the court, including the parent 's
active participation in the reunification effort." Id. at 390. "[W]here one parent
has been the custodial parent and takes the primary . . . role in caring for the
child[], it is reasonable for [the Division] to continue to focus its efforts of
A-5016-18 30 family reunification on that custodial parent, so long as [it] does not ignore or
exclude the non-custodial parent." Id. at 393.
The record shows the Division provided innumerable services to Kara,
who was Alan's custodial parent when the Dodd removal occurred. As the trial
court correctly noted, the Division provided Kara with "psychological and
bonding evaluations, supervised visitation, parenting skills [training], individual
therapy, [Center for Alcohol and Drug Services] assessment[s], substance abuse
treatment, transportation assistance[,] and [Family Team Meeting]s." The
Division properly "focus[ed] its [substantial] efforts of . . . reunification on th[e]
custodial parent," ibid., because defendant's ongoing lengthy incarceration
rendered him unavailable to parent Alan, and defendant otherwise consistently
indicated he did not intend to present himself as a plan to provide Alan with a
permanent home.
Any effort to provide services to defendant was also "necessarily impeded
by the difficulty and possible futility of providing services to an incarcerated
person." R.G., 217 N.J. at 557. The services that could be offered to defendant
were further limited because defendant was incarcerated at a distant out-of-state
prison. In such circumstances, "reasonable efforts may be satisfied when the
Division provides services to, and seeks reunification with, the custodial parent
A-5016-18 31 from whom the child was removed." Id. at 557-58; see N.J. Div. of Youth &
Fam. Servs. v. T.S., 417 N.J. Super. 228, 242-43 (App. Div. 2010) (finding that,
because a father had no relationship with his daughter prior to his incarceration,
providing services to him would be futile). However, "[a]bsent an order under
N.J.S.A. 30:4C-11.3, the Division may not ignore requests or avoid providing
services to an incarcerated parent." R.G., 217 N.J. at 558. Again, the Division
provided reasonable services by focusing its efforts on reunification of Alan
with his custodial parent, Kara, while defendant served his prison sentence. The
Division's focus on reunification with Kara was especially appropriate here
because defendant expressed that he should not be considered as a plan to
provide Alan with a permanent and secure home.
In any event, the Division provided services to defendant. It sent letters
to defendant concerning the status of the proceedings and Alan's assessment at
a hospital; it provided the paternity test defendant requested; and it provided a
psychological evaulation in which defendant refused to participate. Defendant
complains the Division did not provide visitation with Alan, but the evidence
established the Division made a reasoned decision not to transport Alan on a
ten-hour round-trip to visit defendant in the upstate New York correctional
facilty because of the child's special needs and the safety issues they presented.
A-5016-18 32 During an October 18, 2018 court hearing, the Division explained the basis for
its decision not to transport Alan for visitation at the correctional facility, and,
when asked by his counsel if he wished to address the issue of visitation,
defendant replied that he had "nothing" to say. Defendant's failure to object
during the hearing to the Division's decision not to transport Alan ten hours for
visitation is consistent with defendant's position that he had no intention of
providing Alan with a permanent and secure home.
Additionally, during his November 30, 2018 discussion with the
caseworker, defendant said he wanted to speak with Alan over the telephone and
would make that request at the next court hearing, but at the subsequent hearing
neither defendant nor his attorney requested telphone contact with Alan. The
record also otherwise established defendant was capable of contacting Alan by
telephone; Dana testified defendant called Alan and spoke with him
approximately every four months. There was no evidence defendant was
prevented from having more telephone contact with Alan.
Defendant correctly notes a Division caseworker first contacted him
directly on November 30, 2018, but at that time he reiterated what the court first
noted in June 2018; defendant decided not to be a plan for permanency for Alan
and sought only that the Division place Alan with either Wendy or Verna. See
A-5016-18 33 N.J. Div. of Youth & Fam. Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App.
Div. 2011) (stating the Division may not "embark on a course set for termination
of parental rights and adoption by a [resource] parent without at least first
exploring available relative placements"). The Division provided reasonable
services to effectuate defendant's plan for Alan—placement of the child with
either Wendy or Verna. See, e.g., ibid.; K.H.O., 161 N.J. at 354 (holding the
Division considered reasonable alternatives where it attempted to find relatives
to care for the child).
The Division separately considered both Wendy and Verna twice as
possible placements for Alan. Wendy was ruled out because she had previously
been substantiated for neglect and inadequate supervision by the Division. She
had appealed the substantiation finding, and it was affirmed. Verna was ruled
out because she withdrew her request to be considered as a placement for Alan.
Wendy and Verna received rule-out letters, and neither appealed from the
Division's determinations.
Defendant's claim the Divison did not provide the reasonable services
required to assist him in "correct[ing] the circumstances which led to" Alan's
placement, N.J.S.A. 30:4C-15.1(a)(3), is further undermined by his contention
that he does not require any services. Defendant's counsel argued in summation,
A-5016-18 34 and defendant contends on appeal, that the record is bereft of evidence he
requires services to ensure his ability to prevent further harm to Alan. He
inconsistently argues, however, that the Division failed to provide him with the
reasonable services required under N.J.S.A. 30:4C-15.1(a)(3). In other words,
defendant illogically argues he does not require any services and, at the same
time, he contends the Division failed to provide the services he required.
The court found "[defendant] has been incarcerated throughout the
entirety of the protective services and guardianship litigations in . . . facilit[ies]
in upstate New York," and it determined "the Division made reasonable efforts,
despite [defendant] not presenting himself as a plan for [Alan] and [defendant's]
incarceration," by "offer[ing defendant] a psychological evaluation, paternity
testing[,] and updates on [Alan]'s progress." "The court note[d] that the services
were limited," but "reasonable in light of [defendant]'s circumstances." The
court also stated "[defendant] did not request any services; he did not even
request visitation."
We are convinced the record supports the court's determination the
Division provided "reasonable [services] in light of [defendant]'s
circumstances." See D.M.H., 161 N.J. at 393. We reject defendant's claim that
the court's finding defendant failed to request services improperly shifted the
A-5016-18 35 burden on the third prong to him. The court did not conclude, as defendant
inaccurately claims, that the Division satisfied its burden by demonstrating
defendant failed to request services.
In its consideration of the "adequacy" of the services provided, ibid., the
court properly assessed if defendant "active[ly] participat[ed] in the
reunification effort," id. at 390. The Division did not "ignore requests or avoid
providing services to" defendant. R.G., 217 N.J. at 558. Defendant did not
request any services. For example, defendant did not request contact or
visitation with his son throughout the litigation, even after indicating to the
caseworker that he would do so at the next hearing. Defendant did not request
any services after receiving the Division's contact information, notice of its
custody of Alan, notice of Alan's special needs issues, or after speaking with the
caseworker on the phone. Defendant also did not participate in any services on
his own, and he refused a court-ordered psychological evaluation. Clearly,
defendant did not "active[ly] participat[e] in the reunification effort," D.M.H.,
161 N.J. at 390, nor display any "inclination" to participate in services, H.R.,
431 N.J. Super. at 225. To the contrary, defendant consistently asserted that he
did not represent a permanency plan, and he acted throughout the process in
accordance with that intention.
A-5016-18 36 Defendant also claims the court erred because the Court's decision in N.J.
Div. of Child Prot. & Permanency v. K.N., 223 N.J. 530, 534 (2015), permitted
the trial court to "order that placement be with an unpaid relative even in the
face of a [Division] disqualification." We do not consider the argument because
it was not made before the trial court, and, as a result, the court, the Division,
and the Law Guardian were deprived of the opportunity to address it . See N.J.
Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 339 (2010) (explaining
"issues not raised below will ordinarily not be considered on appeal").
We also reject defendant's reliance on the Court's decision in R.G.,
because the defendant in that case "immediately increased his efforts and
contacted [the child] to remain a part of her life" after realizing she had been
removed from the mother's custody, 217 N.J. at 560, and "voluntarily
participated in [multiple] classes . . . while in prison," id. at 541. Here,
defendant did not increase his efforts to remain a part of Alan's life after learning
of the child's removal from Dana's custody. Instead, defendant stated it was not
his plan to provide permanency for Alan, and he acted accordingly.
Unlike the defendant in R.G., defendant's efforts were directed
exclusively to placing Alan with either Wendy or Verna. When they were ruled
out, defendant's plan for permanency was no longer feasible, and he never
A-5016-18 37 changed his position and presented himself as a parent willing to assume the
responsibility for parenting his child. The Court described the defendant in R.G.
as one who "expressed a willingness to improve his parenting skills and a desire
to deepen his parent-child relationship." Id. at 563. There is no evidence
defendant shared a similar willingness or desire.
The Division presented clear and convincing evidence that it provided
reasonable services to defendant as required by N.J.S.A. 30:4C-15.1(a)(3) based
on the circumstances presented. We defer to the court's finding because it is
supported by the record evidence and defendant fails to demonstrate that the
finding is "so 'clearly mistaken' or 'wide of the mark' [that we]
should . . . intervene." E.P., 196 N.J. at 104 (quoting G.L., 191 N.J. at 605).
C.
We are unpersuaded by defendant's argument the Division did not prove
the fourth prong—that termination of defendant's parental rights will not do
more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The ultimate question is
"whether, after considering and balancing the two relationships, the child will
suffer a greater harm from the termination of ties with [defendant] than from the
permanent disruption of [his] relationship with [his resource] parents." K.H.O.,
161 N.J. at 355. "[T]he child's need for permanency and stability emerges as a
A-5016-18 38 central factor." Id. at 357; see also N.J. Div. of Youth & Fam. Servs. v. F.M.,
211 N.J. 420, 453-54 (2012) (holding termination of the defendant's parental
rights would not do more harm than good where the child's attachment to the
resource parent was stronger than the attachment to the legal parent); N.J. Div.
of Child Prot. & Permanency v. P.D., 452 N.J. Super. 98, 122-23 (App. Div.
2017) (finding the fourth prong satisfied upon expert testimony that the severing
of the child's relationship with the resource parent would cause "severe and
enduring harm," while the child had "no bond" with the legal parent); N.J. Div.
of Child Prot. & Permanency v. N.C.M., 438 N.J. Super. 356, 372-73 (App. Div.
2014) (concluding the Division satisfied the fourth prong with expert testimony
that the children had developed a "secure[] attach[ment]" to their resource parent
while having only an "insecure attachment" to their legal parent).
The improbability of reunification with the parent or the fact the child 's
bond with the resource parent(s) is stronger than with the natural parent is not
enough to satisfy this prong. E.P., 196 N.J. at 108; J.C., 129 N.J. at 19. The
child's relationship with the resource parent(s) must be so strong "that separating
the child . . . would cause serious and enduring emotional or psychological
harm." E.P., 196 N.J. at 108 (quoting J.C., 129 N.J. at 19). We also consider
A-5016-18 39 "the effect of permanently terminating [the child]'s connection to his [or her]
siblings." In re Guardianship of J.N.H., 172 N.J. 440, 478 (2002).
The prong is typically required to be satisfied by expert testimony based
on a comparison of bonding evaluations. See N.C.M., 438 N.J. Super. at 371
(stressing the need for "well[-]qualified expert" testimony concerning bonding
evaluations (quoting J.C., 129 N.J. at 19)); L.J.D., 428 N.J. Super. at 492
(making its finding based on expert testimony regarding bonding evaluations).
However, expert testimony is not required in an instance involving "[a] common
sense notion that [a] child will be more bonded with his [or her resource] parents
than with [the] defendant." N.J. Div. of Youth & Fam. Servs. v. I.S., 202 N.J.
145, 182 (2010). Bonding evaluations are also not required where termination is
"not predicated upon bonding, but rather reflect[s the child]'s need for
permanency and [the parent]'s inability to care for [the child] in the foreseeable
future." B.G.S., 291 N.J. Super. at 593.
Defendant argues the Division could not prove prong four "because it
presented the court with absolutely no evidence regarding [Alan]'s relationship
with [defendant]." Defendant also asserts "[t]he unrefuted testimony of [Verna]
was that they had enjoyed a close relationship before [defendant]'s
incarceration." However, the court took issue with Verna's credibility, finding
A-5016-18 40 she "smirked when she thought her testimony was advantageous [to defendant],"
and that "[i]t was clear . . . she wanted [Alan] and would do anything to achieve
that goal, which did not help her credibility overall."
Since we defer to the court's "first-hand credibility judgments," E.P., 196
N.J. at 104, we are unconvinced Verna's testimony alone established a "close
relationship" between defendant and Alan as a matter of fact. Verna's testimony
about the purported close relationship between defendant and Alan is also
undermined by the unrefuted evidence that the only time defendant may have
spent with Alan was during the approximately fifteen-month period following
his third birthday while Alan was in Wendy's custody. The court found
defendant made virtually no efforts to remain in Alan's life after his
incarceration. Defendant called Alan only three times a year, never requested
contact or visitation, never contacted the Division when it sent him updates and
contact information, and never made "efforts to become fit to care for [his son]."
The court's finding there was "no evidence [of] . . . any ongoing relationship"
between defendant and Alan is supported by the record. Indeed, other than the
testimony of Verna, the record is bereft of evidence supporting the notion
defendant had been involved in Alan's life other than the short period, when
A-5016-18 41 Alan was three, and defendant resided with Wendy following his April 2014
release from incarceration.
We are not persuaded by defendant's claim the Division did not satisfy the
fourth prong because it did not proffer any "expert testimony . . . regarding the
bond between [defendant and his son]." Although bonding evaluations are
generally needed prior to termination of parental rights, N.J. Div. of Youth &
Fam. Servs. v. A.R., 405 N.J. Super. 418, 436-37 (App. Div. 2009), they are not
required where termination "[is] not predicated upon bonding, but rather
reflect[s the child]'s need for permanency and [the parent]'s inability to care for
[the child] in the foreseeable future," B.G.S., 291 N.J. Super. at 593. That is the
case here.
The court predicated its termination of defendant's parental rights upon
Alan's need for permanency and defendant's inability to care for him in the
foreseeable future. Moreover, as noted, defendant consistently indicated he does
not intend to provide a permanent and secure home for Alan even after he is
released from incarceration. Drs. Singer and Smith testified Alan "clearly
requires permanency and consistency," and is in desperate need of stability.
Under those circumstances, a bonding evaluation was not required. The record
supports the court's determinations that Alan needs permanency and will suffer
A-5016-18 42 severe harm without it, and defendant is wholly unable to satisfy that need in
the foreseeable future. See ibid.
As the court correctly found, uncontested expert testimony established
"[Alan] is very well[-]bonded to [his resource parents]," and severing that
relationship would cause Alan "severe and lasting harm" and would cause him
to further "regress emotionally and behaviorally." The unrefuted expert
testimony further established it is in Alan's best interests to remain with his
sister, and the experts explained termination of defendant's rights enables Alan
to finally "achieve permanency through adoption by [his] psychological
parents," to whom he is "secure[ly] attach[ed]."
Because the court based its termination of defendant's rights on Alan's
"need for permanency and [defendant]'s inability to care for [Alan] in the
foreseeable future," ibid., and the uncontested evidence establishes that
termination of Alan's relationship with his resource parents and sister would
cause "severe and lasting harm," the court's determination the Division satisfied
the fourth prong is amply supported by the record. See K.H.O, 161 N.J. at 355-
57; F.M., 211 N.J. at 453-54; P.D., 452 N.J. Super. at 121-22.
A-5016-18 43 To the extent we have not addressed any of defendant's remaining
arguments, they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
A-5016-18 44