NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

In this appeal, defendant E.R.B. argues that the decision to terminate his parental rights to two children — S.A.A. (Sarah)1 born in September 2012, and E.R.A. (Ethan)2 born in

December 2013 — was contrary to the weight of the evidence. Additionally, defendant argues the trial judge erred in denying an adjournment request from his newly-retained attorney shortly before the commencement of the trial. We find no merit in defendant's arguments and affirm.

Parents have a constitutionally protected right to the care, custody and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed `essential,' `basic civil rights . . .,' and `rights far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (internal citations omitted). "[T]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.

The constitutional right to the parental relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, a parent's interest 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); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To effectuate these concerns, the Legislature created a test for determining when a parent's rights must be terminated in a child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and convincing evidence the following four prongs:

See also A.W., supra, 103 N.J. at 604-11.

After a three-day bench trial, during which defendant and the children's mother did not testify, Judge Marysol Rosero found the Division demonstrated, by clear and convincing evidence, that all four prongs supported termination of their parental rights. These findings were supported by evidence the judge found credible and are entitled to our deference. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394, 413 (1998). We affirm substantially for the reasons set forth by Judge Rosero in her well-reasoned and thoughtful fifty-one page written opinion.

Briefly, we observe that the judge found the Division's witnesses credible in concluding that the Division established all four prongs. As is often the case, the proofs relevant to some prongs establish or at least have great relevance in determining the presence of other prongs. For example, the first and second prongs — whether the parent has or will endanger the children's safety, health or development and whether the parent is unable or unwilling to eliminate the harm — are illuminated by the fact that in fulfilling its prong three obligations, the Division made reasonable efforts to provide services but the parents failed to take advantage of those services.

Here, the evidence supports the judge's finding that the parental relationship has endangered the children; defendant failed to maintain stable employment and housing, has a history of incarceration, and was incarcerated at the time of the proceedings. While incarceration is alone insufficient to justify termination of parental rights, it is a material factor to consider along with other harms. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 555-56 (2014); In re Adoption of Children by L.A.S., 134 N.J. 127, 129-32 (1993). Defendant, now forty-seven years old, has been arrested on multiple occasions, incarcerated for approximately fifteen years of his life, and, in February 2015, began serving a three-year prison term after pleading guilty to second-degree eluding.

The judge considered these circumstances but also defendant's failure to otherwise protect the children from harm that had been or could be inflicted by another parent. F.M., supra, 211 N.J. at 451. The children's mother (Karen) has a history of substance abuse and mental illness, including schizophrenia and ADHD, that "manifest in violent outbursts." In light of her complete failure to address these mental health issues, the judge found she "poses a real threat" to Sarah and Ethan. And the proof that defendant was unable to protect the children — and not simply because he was incarcerated — was demonstrated by past performance. For example, in September 2013, defendant was allowed to supervise Karen's visitation with the children; the parties, however, failed to honor the limitations of the visitation order. A month after supervised visitation began, Karen stabbed defendant with a kitchen knife and was again incarcerated.3 By permitting Karen to move back into his apartment despite the limits of the visitation order, the judge concluded defendant was unwilling or incapable of following court orders or to shield his children from danger.

The judge also credited the testimony of Dr. Singer, the Division's expert, who testified defendant's secrecy about Karen's whereabouts, and defendant's belief that the stabbing was a mere "hiccup" in their relationship, "clearly present[s] a risk of harm . . . as it raises concerns regarding [defendant's] ability to protect the children from their mother."

The record also demonstrates, as the judge found, that from the outset of its involvement with this family, the Division offered defendant many services. Defendant initially complied with services, but his compliance became sporadic. He failed to consistently attend therapy to address his history of domestic violence; at times, he arrived smelling of alcohol. Defendant failed to obtain stable housing after losing housing assistance and failed to obtain stable employment, despite the Division's offer of various training services and referrals. Consequently, Dr. Singer opined that the services defendant did attend had "a limited benefit" and "it was not likely that additional services would change his attitudes."

Defendant also challenges the efforts to find an alternative to termination. The judge found — and the record establishes — that the Division explored and ruled out, all suggested alternatives. Defendant refers now only to the children's paternal grandmother as a suitable placement or as a kinship legal guardian, but the Division assessed and twice ruled her out. The Division first ruled out the paternal grandmother because she stated she was unable to care for the children due to other obligations and preferred the children remain with the resource parents until reunification with defendant.4 The Division later again considered the grandmother as a possible placement but decided against it because of Dr. Singer's opinion that it was in the best interest of the children for their foster parents — with whom they had lived nearly their entire lives — to adopt them. We reject defendant's argument that the trial judge should have appointed the grandmother as a kinship legal guardian. Kinship legal guardianship "may only be appointed when `adoption is neither feasible nor likely,'" and here, the foster parents have clearly expressed their interest in adopting Sarah and Ethan. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 509 (2004).

We lastly find no merit in defendant's arguments regarding the fourth prong. Defendant called no witnesses on this subject, resulting in the judge hearing only the testimony of Dr. Singer on this prong. In Sarah's case, Dr. Singer opined that: she would suffer "significant and enduring harm" from a severing of her relationship with her foster parents; defendant could not function as a minimally adequate parent; and neither defendant nor the paternal grandmother would be able to mitigate the loss of Sarah's parental figures — her foster parents who have cared for her since she was a week old. Conversely, although Sarah would suffer some harm from severing her relationship with her father, Dr. Singer believed her foster parents would be able to mitigate that harm.

Dr. Singer opined that, because of his young age, Ethan would respond to any parental figure and would not, therefore, suffer the same level of harm from separation from his foster parents or from defendant. He recommended termination because defendant was "unlikely to become a parenting option in the foreseeable future," and he explained the benefits of the children remaining together. In Dr. Singer's view, which the judge accepted, termination of defendant's parental rights followed by adoption by the foster parents "would do more good than harm to the children."

We, thus, conclude the judge was justified in determining that the Division's evidence was clear and convincing and that the evidence fully supported termination of defendant's parental rights.

Defendant raises one other issue. He claims the judge erred in denying his request to adjourn the trial. We review such a ruling by applying an abuse of discretion standard. State ex rel. Com'r of Transp. v. Shalom Money St., LLC, 432 N.J.Super. 1, 7 (App. Div. 2013); State v. D'Orsi, 113 N.J.Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971).

This guardianship action was commenced on July 30, 2014.5 In March 2015, the judge scheduled a trial to begin on June 10, 2015. At a permanency hearing on May 26, 2015, defendant appeared with new counsel. The judge allowed the substitution of attorney but with the understanding, which was clearly and unmistakenly communicated,6 that the substitution would not delay the June trial date. Notwithstanding the condition upon which the substitution was based, on June 2 and again on June 11, 2015, defendant's new counsel sought a three-week adjournment so as to gain more time to review the file. The judge denied the request and the trial proceeded as planned.

Defendant argues that the denial of the adjournment request deprived counsel with time to interview witnesses and engage experts, but, at trial, counsel did not suggest these reasons as a basis for an adjournment; she argued only that more time was needed to review the file. The judge did not abuse her discretion in rejecting the application. See, e.g., State v. Miller, 216 N.J. 40, 69 (2013), cert. denied, ___ U.S. ___, 134 S.Ct. 1329, 188 L. Ed. 2d 339 (2014).

Affirmed.