September 24, 2007
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF N.E. AND C.E., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-63-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 10, 2007
Before Judges S.L. Reisner and Baxter.
Defendant J.E. appeals from the October 31, 2006 order of the trial court terminating his parental rights to his son N.E. and his daughter C.E., and placing both in the guardianship of the Division of Youth and Family Services (DYFS) for eventual adoption.
We conclude that the proofs presented by DYFS demonstrate by clear and convincing evidence that, by virtue of J.E.'s chronic homelessness, inability to maintain consistent employment, repeated incarceration for crimes, and protracted absence from his children's lives, these children's health and development will be severely impaired by J.E.'s deficits as a parent, and that he is unable or unwilling to eliminate the harm facing his children. The proofs also amply demonstrate that although DYFS provided extensive and ongoing services to J.E., his use of those services was sporadic and indifferent; that DYFS investigated numerous relatives as alternatives to termination of parental rights, but none was suitable; and that allowing both children to be adopted would not cause more harm than good. We affirm the termination of J.E.'s parental rights to both children.*fn1
N.E. was born on November 21, 2002, and has never lived with his father J.E. DYFS's involvement with N.E.'s mother T.P. began on February 19, 2003, following a referral alleging that T.P. had an alcohol problem and at the end of the month, would be evicted from the publicly-funded shelter in which she lived.
Three months after DYFS began providing services and supervision to T.P., the assigned caseworker met with J.E. for the first time on May 20, 2003. At this time, J.E. admitted that he was unemployed and had no source of income, but claimed that he was able to survive because various paramours gave him money. Two months after his May 20, 2003 meeting with DYFS, J.E. was still homeless and living with friends.
On August 8, 2003, after T.P. herself had been arrested on a charge of violation of probation, the court awarded DYFS legal custody of N.E. and granted its request to place N.E. with M.C.P., a maternal great-aunt. Other than a three-month period between February and May 2005, N.E. has lived with M.C.P. his entire life.
On August 11, 2003, three days after physical custody of N.E. was given to the maternal great-aunt, J.E. was arrested and incarcerated on a criminal charge of terroristic threats, and was released nine days later after posting bail. Neither T.P. nor J.E. attended an August 27, 2003 compliance review hearing, at which the judge ordered that N.E. continue in the custody, care and supervision of DYFS and that J.E. submit to psychological evaluations, comply with all resulting treatment recommendations and submit to random urine screenings.
On September 11, 2003, Victor M. Solomon, Ph.D., conducted the court-ordered psychological evaluation of J.E. Solomon reported that J.E. should not be permitted to have custody of N.E., but should be re-assessed in six months after J.E. had completed substance abuse treatment and provided random urine samples. Solomon further recommended that J.E. engage in individual psycho-therapy. At DYFS's request, J.E. was ordered to telephone the DYFS caseworker every Monday at 2:00 p.m. and she provided him with a toll-free number for that purpose. He never called.
At the compliance review hearing on October 8, 2003, J.E. stipulated both to being homeless, and unwilling and unable to provide for his son. His living arrangements alternated between living with a cousin, a brother, his mother and various hotels. He had no permanent address or telephone number, slept at a different place every night and was unemployed. In addition, J.E.'s failure to maintain weekly telephone contact with the DYFS worker continued. As a result, the judge ordered that N.E. continue under the custody, care and supervision of DYFS and that he remain in the physical custody of the maternal great-aunt. The judge granted J.E. visitation with his son, to be supervised by DYFS. The judge further ordered that J.E. complete a substance abuse evaluation, submit to random urine screenings and attend counseling.
As a result of the October compliance review, DYFS referred J.E. to the Audrey Hepburn Children's House (Children's House) for therapy. After attending his first session in January 2004, J.E. failed to attend any of the next seven sessions, despite being provided with a free bus pass for six of them. The Children's House caseworker attempted to contact J.E. by letter, and after receiving no response, discharged J.E. from the individual therapy program.
Although DYFS also made arrangements for J.E. to visit with his son at its offices, J.E. was as indifferent to visiting with his son as he had been to receiving therapy at the Children's House. J.E.'s visitation with his son was scheduled once per week, but J.E. missed more visits than he attended. The DYFS caseworker was unsure how many visits J.E. actually kept, but testified that he failed to appear for approximately ten scheduled visits.
J.E. offered various reasons for missing the scheduled visitation, including theft of the overcoat that contained the visitation information, having to visit relatives in Georgia, oversleeping and conflicts with his work schedule. As to his work schedule, the record demonstrates that J.E. only worked for a brief period in the fall of 2003, and even though DYFS rearranged J.E.'s visitation with his son to accommodate that work schedule, J.E. nonetheless repeatedly missed his visitation and never called the DYFS caseworker to tell her that he was unable to be present. Consequently, at DYFS's request, the court suspended J.E.'s visits with his son because DYFS was needlessly expending effort to pick N.E. up at daycare, bring him to its office and then return him to daycare after J.E. failed to show up.
Although the court had suspended visitation, DYFS sent a letter to J.E. on December 10, 2003, explaining that it would provide visits with his son if he presented himself at the regional DYFS office first and then waited while DYFS retrieved N.E. from daycare. Despite DYFS's effort to accommodate him in that fashion, J.E. failed to avail himself of any visits with his son for several months, at which time DYFS lost all contact with J.E. and did not know where he was. DYFS sent letters to J.E. at his last known address in an attempt to contact him, but received no response. Later that year, in September 2004, J.E. presented himself at the DYFS office claiming that he had been in and out of jail over the past few months for failure to pay child support and fines, and for disorderly conduct. Because J.E. had not seen his son in more than a year, the caseworker informed J.E. that unless he attended therapy sessions and submitted to random urine screening, he would not be permitted any contact with his son. The worker provided him with the address and telephone number of CompCare in Hackensack and directed him to call that agency in order to set up individual therapy. He never did so.
Nonetheless, DYFS agreed to arrange a visit for J.E. with his son on November 5, 2004, which J.E. attended. At the time of that session, J.E. had not seen his son for fifteen months, and N.E. did not recognize him. Every time the DYFS worker tried to leave the room, N.E. followed her out into the hallway rather than remain alone in the room with his father.
When asked by the worker during that session whether he had started to attend CompCare, J.E. commented that he did not understand why he had to attend such sessions. He also mentioned the possibility of his mother assuming custody of N.E., but he did not have an address for her. DYFS sent letters to J.E.'s mother at two addresses that were in the file, but the caseworker never received a response. Following the November 5, 2004 visit, DYFS left repeated messages for J.E. at his job to ascertain whether J.E. had made the appointments at CompCare and to remind him to report for a urine test. J.E. never responded to those messages, nor did he ever reply to any messages left with his uncle, who reported that J.E. only stayed with him a few nights at a time.
DYFS continued its efforts to find J.E. Through the efforts of the Department of Human Services police, DYFS learned that J.E. was incarcerated in the Bergen County jail following a January 25, 2005 arrest for theft, violation of probation and failure to pay child support.
Ten days before J.E.'s January 25, 2005 arrest, T.P. gave birth to J.E.'s second child, his daughter C.E. On January 27, 2005, the court granted DYFS supervision of C.E. with physical custody remaining with T.P. The court, however, barred J.E. from T.P.'s apartment. The judge further ordered that any future visits between J.E. and his children were to be supervised by the Pennsylvania Child Protective Services office, T.P. having moved to Pennsylvania to live with her grandmother. On February 10, 2005, DYFS reunited N.E. with his mother in Pennsylvania, but on May 19, 2005, the judge ordered both children removed from T.P.'s home because of her two recent positive urine screens for marijuana. The children were then placed back with the maternal great-aunt.
When T.P. continued to remain non-compliant with court-ordered drug treatment, DYFS began to evaluate possible placements for both children, in addition to the maternal great-aunt. Other possible placements included J.E.'s mother as well as four other relatives. J.E.'s mother never responded, nor did two of the relatives. A third was ruled out due to insufficient space at her home, and the fourth was found unsuitable by Luzerne County Children and Youth in Pennsylvania.
Ultimately, J.E. was convicted of the charges that led to his January 25, 2005 arrest, and was confined to state prison. He remained there until November 28, 2005, when he was returned to the Bergen County Jail on an outstanding domestic violence warrant. When DYFS learned that J.E. had been returned to the Bergen County jail, the worker visited him on December 9, 2005 to discuss his plans after he was released from custody. J.E. assured her that he would find a job and comply with DYFS's requests, after which he was instructed to contact the worker immediately upon release.
Although released on December 22, 2005, J.E. made no contact with DYFS until February 2, 2006. When the DYFS caseworker reiterated that he needed to complete the court-ordered substance abuse evaluation, J.E. agreed to make arrangements to do so, but never did. Some three weeks later, on February 27, 2006, J.E. again visited the DYFS office, at which time the worker confronted him about his failure to complete the court-ordered bonding and psychological evaluation despite his release from custody more than two months earlier. After missing several appointments, J.E. finally completed the bonding and psychological evaluation with Charles S. Hasson, Ph.D. on March 10 and April 4, 2006.
On August 9, 2006, J.E. was arrested on a charge of absconding from parole supervision because he had left New Jersey without permission. This arrest was the fifth time J.E. had been locked up since N.E. was born in November 2002. During the trial that is the subject of this appeal, J.E. testified by telephone from the Luzerne County Correctional Facility in Wilkes-Barre, Pennsylvania where he was being held on the outstanding New Jersey parole violation warrant.
At the trial, Dr. Hasson testified about the results of the psychological evaluation he administered to J.E. In the section of the M.M.P.I. test labeled "psychopathic deviance," J.E. scored a sixty-nine. Hasson testified that any score above sixty-five is considered high, and anyone with such score is likely to be "impulsive, resentful, rebellious . . . [with] difficulty accepting rules, regulations and getting along with authority figures . . . [creating a] propensity for problems with the law. . . ." Hasson also opined that individuals such as J.E. with a score of sixty-nine are likely to experience difficulty with long-lasting relationships because their social relationships are "shallow, superficial and brief" and they are unable to satisfy the responsibilities and demands that accompany any relationship. As Hasson noted in his report, those with a score of 69 on this scale "are apt to 'bail out' when the going gets tough."
Hasson also performed a clinical interview of J.E. and reported that J.E. "tends to size up people and situations, and tell them what he thinks they want to hear . . . . [H]e's willing to . . . finesse the truth and . . . be manipulative." Hasson concluded that if the children were placed with J.E., he would "fob them off" on other people in order to maintain his lifestyle of meeting women, having a "fast life" and enjoying himself. He also pointed to J.E.'s assumption that his mother would raise the children, thereby allowing him to live life "his own way." He concluded that J.E. was "too selfish, too egotistical, too inculcated in being a survivor for him to safely and permanently care for his children."
Although Hasson observed during the bonding evaluation that J.E.'s bonding with his son was a "good bonding," Hasson emphasized that J.E.'s inability to provide a stable home and his overall behavior, including his deliberate absence from his children's lives, long periods of incarceration, inability to sustain employment, lack of direction, inability to live independently and failure to comply with treatment recommendations, were far more important factors than that brief moment when he greeted his children during the bonding evaluation.
Hasson's testimony included the results of his bonding evaluation of the maternal great-aunt. He began by describing N.E.'s special needs, including speech impairment and articulation problems. While N.E. was not old enough to be diagnosed with attention deficit hyperactivity disorder, Hasson explained that N.E. suffers from a "high interaction tempo."
Hasson described the maternal great-aunt's bonding with the children in glowing terms: she was an extremely therapeutic influence on N.E.; a calming influence on both children; and her parenting style was caring and effective. He opined that removing N.E. from her custody would result in long-term harm to his development. Specifically, N.E. "[w]ould never feel as if there's a sense of stability . . . . and [it would] cause him to act out . . . more in the future . . . [resulting in] more problems in school [and in his] view of himself." As to C.E., Hasson testified that "she needs a stable situation." Because C.E. had established a relationship with her brother, Hasson recommended that the two children remain together. He opined that if C.E. were removed from the home of the maternal great-aunt, her need for stability would be underminded, resulting in a "harmful effect."
When J.E. testified, he attempted to explain his failure to comply with the court's orders. As to his failure to attend court-ordered therapy, he contended that he had been instructed only to attend one therapy session at the Children's House and "that was it." He admitted, however, that he was present at several court hearings where he had been instructed to continue to attend such sessions. He explained his failure to do so by pointing to his work responsibilities, obligation to report to probation and his frequent moves from place to place.
J.E. further admitted that he failed to call DYFS weekly despite the judge's order. He also conceded that in 2004, he stopped visiting N.E. before he went to jail, but claimed that it was because he had "rules and regulations" to follow regarding his parole, and that if he visited with his son, he would have been unable to satisfy his obligation to report to probation and parole weekly.
J.E. also testified that he had instructed DYFS in March 2006 to evaluate his mother as a possible placement, but acknowledged that he had been unable to provide her address because he did not know where she lived. He also conceded that his mother never visited the children while they were in DYFS custody. He presented no expert testimony in his own behalf.
In a written opinion, issued following submission of written summations, the judge observed that DYFS offered J.E. services including psychological evaluations, drug programs, visitation and therapy, but J.E. had failed to utilize them. The judge further found that J.E. had not had significant contact with either child nor had he provided them with any care or support. The judge found that J.E. did not see N.E. from November 5, 2004 until March 2006, in part because J.E. was incarcerated from January 25, 2005, until December 2005 and then again from August 9, 2006, until the time of trial in September 2006.
The court also found that DYFS made reasonable efforts to find relatives to care for the children; J.E. offered only his mother, but did not know her location; and the children are in the care of the maternal great-aunt who wishes to adopt them. After noting that both children have spent most of their young lives with her, the court found that they would experience "enduring negative consequences if removed from her care." The court ultimately held that DYFS had satisfied the statutory standard for termination of the parental rights of J.E. to both of his children.
On appeal, J.E. argues that his parental rights were improperly terminated because DYFS failed to prove by clear and convincing evidence the four factors specified in N.J.S.A. 30:4C-15.1. We disagree. Our careful review of the record establishes that the judgment terminating the parental rights of J.E. to N.E. and C.E. is well-supported by the record and is correct.
The Supreme Court has held that "[p]arents have a constitutionally protected right to maintain a relationship with their children." New Jersey Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). However, the Court has also held "that the right of parents to be free from governmental intrusion is not absolute. The State as parens patriae may act to protect minor children from . . . harm. . . . [T]his may require a partial or complete severance of the parent-child relationship." New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). Thus, the "[t]ermination of parental rights may occur when it is in the best interests of the child." New Jersey Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
N.J.S.A. 30:4C-15.1 provides that once it appears that termination of parental rights is in the best interests of the child, DYFS shall initiate a proceeding to terminate those rights. In such a proceeding, DYFS must prove by clear and convincing evidence that:
(1) The child[ren]'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 division 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.
"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interest." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). As we approach the task of reviewing the trial judge's findings, we remain mindful that our scope of review is limited. So long as the findings of fact made by a Family Part judge are "supported by adequate, substantial, credible evidence," those findings are entitled to our deference in view of the Family Part's "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998).
The first prong of the statutory test requires the trial court to determine whether DYFS proved by clear and convincing evidence that the children's health, safety or development has been, or will continue to be, endangered by the parental relationship. N.J.S.A. 30:4C-15.1(a)(1). As to the first prong, the trial judge's opinion is strongly supported by the uncontroverted findings and testimony of Dr. Hasson and the DYFS caseworkers who testified. All of them described severe limitations in J.E.'s ability to avoid endangering the health, safety or development of his two children. As the Court observed in M.M., supra, the harm under this prong "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." 189 N.J. at 281. Further, this prong "does not concentrate on a single or isolated harm . . . . [T]he focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348.
Here, J.E. argues that "where no particular active abuse or cruelty has been alleged, it cannot be said clearly and convincingly that there has been harm to the children's health and development." He further contends that "the question . . . is not whether there is potential for harm to the health, safety or development of the child[ren]. It is whether or not there has been serious harm inflict[ed] . . . , and that harm will continue in the future if the parental relationship . . . is not severed." Conceding that "[h]e will not win any Father of the Year awards based on recent performance," he argues that nonetheless the evidence was insufficient to satisfy the first prong. J.E.'s argument fails to recognize that evidence showing actual harm to a child is not required to satisfy this section of the statute; rather, it must only be shown that "the child's safety, health or development has been or will continue to be endangered by the relationship." N.J.S.A. 30:4C-15.1(a)(1); A.G., supra, 344 N.J. Super. at 434.
Like the parents in A.G., who had never physically harmed their child, here the record demonstrates that J.E. has deficits and limitations of a magnitude sufficient to impair both children's safety, health or development. J.E.'s long periods of incarceration, combined with his failure to ever provide any financial support or care for either of his children, and indeed his failure for months at a time to visit them despite the demonstrable efforts by DYFS to encourage that visitation, clearly establish that both children's development has been and will continue to be endangered by their relationship with their father. In effect, J.E. has defaulted on his responsibilities as a parent. As the trial judge concluded, J.E. "has neglected the children through his homelessness, inability to maintain consistent employment, incarceration for crimes and lack of providing for any of their needs." Indeed, J.E. was incarcerated from January 25, 2005, until December 22, 2005, and again from August 9, 2006, until the trial began on September 5, 2006. His daughter C.E. was born on January 15, 2005, and thus J.E. was absent from all but ten days of the first eleven months of her life.
The findings and opinion of Dr. Hasson lend further support to the judge's determination that both children's safety, health or development will be endangered by their relationship with J.E. The evidence of J.E.'s inability to satisfy the special challenges involved in raising a child who has language deficits and hyperactivity, combined with Dr. Hasson's conclusion that if the children were placed with J.E., he would quickly "fob them off" on other people, amply demonstrate that the children would be endangered were they to be in his care. This is especially so in light of J.E.'s constant drifting from place to place and his lack of a stable home in which to care for his children. Dr. Hasson's conclusion that J.E. was "too selfish and too egotistical" to "safely and permanently care for his children" was uncontroverted by any evidence in the record. Furthermore, the withdrawal of solicitude, nurture and care for an extended period is in itself a harm. In re Guardianship of K.H.O., supra, 161 N.J. at 352-54. Thus, the trial court correctly held that DYFS satisfied its burden under the first prong of the statute.
J.E. next argues that DYFS has failed to prove by clear and convincing evidence that the requirements of the second prong have been satisfied. The second prong, like the first, is concerned with current and potential endangerment to the child because of the parent-child relationship. The second prong has two parts, requiring DYFS to prove that "[t]he parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1(a)(2). This prong is aimed at "determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348.
Significantly, "[s]uch [recurrent] 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." N.J.S.A. 30:4C-15.1(a)(2). Indeed, the Court has recognized that "if one thing is clear, it is that the child deeply needs association with a nurturing adult. Since it seems generally agreed that permanence in itself is an important part of that nurture, a court must carefully weigh that aspect of the child's life." A.W., supra, 103 N.J. at 610.
J.E. argues that his job and obligation to report to parole and probation prevented him from availing himself of visitation with his children, but that these difficulties were merely temporary and, according to his brief, "[h]is plan upon release from jail would be to work, and have his mother take custody of his children so he could see them anytime he wants." Because he was "making efforts to correct whatever errors he ha[d] made in the past that led to DYFS's involvement," he contends that the court erred when it concluded that he was unwilling or unable to eliminate the harm facing his children. These arguments lack merit.
First, J.E. failed to maintain steady employment and testified that following N.E.'s birth in November 2002, the longest he had maintained employment had been seven months. Under those circumstances, it is difficult to accept his contention that his work responsibilities interfered with raising his child. Second, even after DYFS re-arranged the visitation schedule to accommodate J.E.'s work schedule, he failed to exercise his visitation for months at a time. Third, despite the vast array of services DYFS offered him to assist him in eventually gaining custody of his children, including drug treatment and individual therapy, he rebuffed DYFS's efforts to arrange such services for him and indignantly claimed that he needed none of them. Fourth, his contention that he had a plan for his children upon his discharge from jail, namely finding employment and allowing his mother to raise the children, is belied by his loss of all contact with his mother and lack of knowledge as to where she currently resided. The record amply supports the trial judge's conclusion that J.E. was unable or unwilling to eliminate the harm facing his children.
Moreover, the trial court's conclusion that the second portion of the second prong was satisfied is also correct. The record unquestionably demonstrates that a delay in permanent placement for these two children will add to the harm confronting them. At the time of trial, N.E. was almost four years old and had been in the care of the maternal great-aunt for approximately three years.
C.E. was approximately twenty months old and had been with the maternal great-aunt all but four months of her life. In light of Dr. Hasson's undisputed testimony that both children have developed a psychological bond with the maternal great-aunt because she has functioned as both children's "psychological parent," and that a host of developmental problems would ensue if permanent placement were delayed, the trial court's finding that further delay in placement would add to the harm facing the children is amply supported by evidence in the record. We accordingly hold that the trial court properly determined that DYFS established the second prong by clear and convincing evidence.
In so concluding, we reject J.E.'s arguments that insufficient time was afforded him to develop a relationship with his children because his incarceration had permitted DYFS to prematurely abandon its efforts. The record demonstrates that DYFS first became involved with J.E. in May 2003, but did not move for termination of his parental rights until two years later in May 2005. Under those circumstances, we agree with DYFS's contention that J.E. "had more than ample time to comply with the various court orders." J.E. had two years in which to develop a relationship with his children, yet he did nothing to obtain gainful employment or provide a stable home for them, nor did he make any effort to comply with any of the other requirements imposed on him by the court, even after he learned that his failure to do so would be met by DYFS seeking to terminate his parental rights.
The third prong of the statutory test requires that "[t]he division [make] reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and [that] the court . . . consider alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). The statute defines reasonable efforts as: attempts by an agency authorized by the division 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:
(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).]
Despite this definition, the Court in In re Guardianship of D.M.H. recognized that different situations call for different efforts when it noted that at the federal level "the recent trend has been to limit the reasonable efforts social service agencies must undertake to reunite families." 161 N.J. 365, 388 (1999). The paramount concern under this statute is the "child's health and safety." Ibid. What constitutes reasonable efforts needs to be "evaluated on a case-by-case basis." Id. at 391.
When evaluating the measures undertaken by DYFS, "[t]he diligence of [its] efforts on behalf of a parent is not measured by their success. Thus, the parent's failure to become a caretaker for his children is not determinative of the sufficiency of [its] efforts at family reunification." Id. at 393. Rather, "[c]onsistent efforts to maintain and support the parent-child bond are central to the court's determination" of what are reasonable or diligent efforts. Ibid.
Here, although DYFS was unsuccessful in attempts to "help the parent correct the circumstances which led to the child's placement outside the home," N.J.S.A. 30:4C-15.1(a)(3), the trial judge correctly found that DYFS employed reasonable efforts to reunite J.E. with his children, but other than visiting with N.E. infrequently, J.E. utilized none of the services DYFS offered. The trial judge's conclusion that DYFS considered numerous alternatives to termination of parental rights prior to petitioning the court for the guardianship of both children finds ample support in the record.
In particular, the record demonstrates that DYFS offered J.E. psychological evaluations, drug programs, therapy at the Children's House and visitation with his children, and even provided bus passes to him. Unquestionably, the trial court correctly concluded that DYFS made reasonable efforts to avoid the termination of J.E.'s parental rights, but he steadfastly refused to avail himself of the opportunities that might have avoided the ultimate result.
We reject J.E.'s argument that DYFS failed to make any effort to provide any services to him while he was incarcerated other than advising him to contact DYFS upon his release from custody. The contention that an outside agency such as DYFS had the ability to send counselors, therapists or any social service agencies into a county jail or state prison to work with a particular inmate is wholly without merit.
We likewise reject his contention that the Court's decision to allow his children to remain with the maternal great-aunt, rather than require DYFS to place them elsewhere, diminished his prospects of ever regaining custody because the maternal great-aunt did not like him and therefore failed to encourage his relationship with his children. As we discuss below, DYFS conducted an extensive investigation aimed at finding other relatives willing to assume custody of both children, but none could be found. Moreover, it was not the maternal great-aunt's dislike of J.E. that interfered with his access to his children. Instead, the record demonstrates that it was his refusal to cooperate with any of the court-ordered evaluations and therapy that led DYFS to insist that visitation be supervised at DYFS headquarters rather than take place at the home of the maternal great-aunt.
Finally, DYFS also demonstrated by clear and convincing evidence that there were no viable alternatives to guardianship and that it had diligently explored possible placement with relatives. As the DYFS caseworker testified and the record demonstrates, DYFS considered four relatives. The sole relative offered by J.E. was his mother, but she had never visited the children while they were in placement and J.E. was unable to even provide current contact information for her. Accordingly, we are satisfied that the trial court correctly held that DYFS satisfied the third prong by clear and convincing evidence.
Finally, J.E. argues that the trial court erred when it found that the termination of his parental rights will not do more harm than good, as required by the fourth prong. To satisfy the requirements of the fourth prong of the statutory standard, DYFS must prove by clear and convincing evidence that the "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The Court has held that the "question to be addressed . . . is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [his] natural parents than from the permanent disruption of [his] relationship with [his] foster parents." K.H.O., supra, 161 N.J. at 355.
In applying the statute, we must be "cognizant of New Jersey's strong public policy in favor of permanency." Id. at 357. The central factor to consider is the child's need for permanency and stability. Ibid. "Long-term foster care is the exception to the general rule favoring adoption, and is available under only very limited circumstances . . . ." Id. at 360.
To determine whether there is sufficient evidence to find that the termination of the parent-child relationship will not do more harm than good, "the court must inquire into the child's relationship both with [his] biological parents and [his] foster parent." Id. at 355. In K.H.O., the Court found that "where it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent[s] is not as strong, that evidence will satisfy the requirement . . . that termination of parental rights will not do more harm than good to the child." Id. at 363.
Here, Dr. Hasson's uncontroverted testimony indicates that J.E. is unable to safely or adequately care for either of his children. Additionally, the record clearly demonstrates that both children have a much stronger bonded relationship with the maternal great-aunt than with J.E. As to C.E., the maternal great aunt took custody of her and has been caring for her ever since May 19, 2005, when she was four months old. She is the only parental figure that C.E. has ever known, and C.E. is progressing well under her care.
In comparison, neither child has such bond with J.E. Quite telling is the evidence that during a November 2004 supervised visitation, N.E. did not even recognize his father and followed the caseworker out into the hallway rather than remain in the visitation room with J.E. The record demonstrates the importance of permanency for these two children and that they would experience greater trauma from being removed from the maternal great-aunt than they would from no longer seeing their father. Because both view her as their "psychological parent," terminating J.E.'s parental rights would not do more harm than good.
We reject J.E.'s contention that Dr. Hasson ignored the good bonding that he observed between J.E. and N.E. during the bonding evaluation. Dr. Hasson did not ignore it, but instead testified that J.E.'s repeated incarceration, lack of employment and drifting from place to place without ever establishing a permanent home are far more important than a brief bonding evaluation. Under those circumstances, we agree with the trial court's conclusion that J.E. has neglected his children and that the termination of his parental rights will not do more harm than good. We accordingly agree with the judge's conclusion that DYFS satisfied the fourth prong by clear and convincing evidence.
In point II of his brief, J.E. argues that the termination of his parental rights to C.E. was based solely on his actions concerning N.E., and that there was little or no evidence in the record pertaining to C.E. We disagree. The record demonstrates that even after C.E. was born, J.E. continued to remain homeless, was unable to maintain steady employment, failed to comply with the various court orders that were in place, continued to engage in criminal activity that led to further incarceration and failed to support or care for C.E. Under these circumstances, we are satisfied that the termination of J.E.'s parental rights to C.E. was based on evidence applicable to her, and was not the result solely of the evidence pertaining to N.E.
Finally, J.E. asserts that the court rushed to judgment and should have refrained from terminating his parental rights until he had been released from custody and afforded the opportunity to demonstrate that he was fit to assume custody of his children. We disagree. As DYFS correctly argues, none of J.E.'s behavior gives us any confidence that, had the court deferred disposition, J.E. would have suddenly established a stable residence, found employment, and enrolled in drug treatment and psychotherapy as ordered by the court, or that he would have demonstrated an ability to care for his children. Further, in light of J.E.'s record of being incarcerated five times during the pendency of these proceedings, it is doubtful that waiting for J.E. to be released from prison in Pennsylvania would have provided any benefit because of the substantial likelihood that he would have again been locked up shortly thereafter. Moreover, we agree with DYFS and the Law Guardian that a parent's physical presence at a DYFS termination proceeding is not mandated. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 468 (App. Div. 2003) (holding that a parent has no due process right to be present at a DYFS termination hearing), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S.Ct. 1176, 157 L.Ed. 2d 1207 (2004). Indeed, we approved in M.Y.J.P. the very type of telephone testimony that was used here for J.E. Id. at 468.