January 14, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF C.D., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-0273-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 5, 2007
Before Judges Payne and Messano.
Defendant D.H. appeals from the trial judge's January 26, 2007, order terminating her parental rights and awarding the Division of Youth and Family Services (D.Y.F.S.) guardianship, care, custody and control of C.D., her five-year-old daughter. As first enunciated by the Supreme Court in Div. of Youth and Family Services v. A.W., 103 N.J. 591, 604-05, 608, 610 (1986), and subsequently codified by the Legislature in N.J.S.A. 30:4C-15.1(a), in order to terminate parental rights, D.Y.F.S. must demonstrate by clear and convincing evidence
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The 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.
In this case, D.H. contends the trial judge erred in concluding that D.Y.F.S. had proven by clear and convincing evidence the second, third, and fourth prongs of the statutory test. We have considered defendant's contentions in light of the record, arguments of counsel, and applicable legal standards. We affirm.
C.D. was born on December 14, 2001, to D.H. and her paramour, P.D. D.H. was married at the time to J.H., with whom she had another daughter, M.H., but had separated from him in July 2000.
The procedural record and the testimony at trial revealed that D.Y.F.S. became involved with the family on February 4, 2002, following allegations of domestic violence and abuse of prescription drugs. At that time, D.H., P.D., and C.D. were living together in P.D.'s mother's home, but the allegation included a complaint that D.H. failed to provide proper care and a stable home for C.D. because she was "back and forth" between P.D.'s and J.H.'s residences.
D.Y.F.S.'s investigation disclosed an incident of domestic violence that occurred on February 2, 2002, that led to P.D.'s arrest. P.D. was alleged to have punched D.H. in the face and restrained her while she was holding C.D., who at the time was only two months old. Despite several attempts, DYFS was unable to contact D.H. and schedule a meeting with her until February 25, 2002. By that date, D.H. along with C.D. had moved back into J.H.'s home and the D.Y.F.S. caseworker observed during a home visit that both M.H. and C.D. seemed to be receiving appropriate care. During the visit, D.H. confided to the caseworker that P.D. had been abusing prescription drugs, had been violent with her in the past, and had been arrested for incidents of domestic violence several times during their relationship. Nevertheless, D.H. acknowledged she never sought a restraining order against P.D. and continued to see him with their daughter. D.H. also denied abusing drugs but refused to complete a substance abuse evaluation. Although D.Y.F.S. did not substantiate the allegations of neglect, the case remained opened for supervision due to concerns of possible domestic violence and parental substance abuse.
On June 26, 2002, D.Y.F.S. received a second referral reporting allegations of domestic violence. The referral also contained reports that P.D. had sold and abused drugs, had hit C.D., now six months old, and that D.H. had tested positive for drugs during her pregnancy. D.Y.F.S.'s investigation revealed that D.H. had used pain medication for a long period prior to her pregnancy, although she denied any current use. The medical records of C.D.'s birth did not indicate any pre-natal drug exposure. D.H. also denied that P.D. used drugs. Once again, D.Y.F.S. did not substantiate any allegation of abuse or neglect and left the case open for supervision.
On September 4, 2002, D.H. and P.D. submitted to substance abuse evaluations and drug screens and both tested positive--D.H. for cocaine and marijuana use and P.D. for cocaine use. Following the positive drug screens, D.Y.F.S. assessed the household and concluded it posed a serious risk of harm to children; D.Y.F.S. also referred D.H. for substance abuse evaluation, and referred P.D. to outpatient substance abuse treatment.
On October 18, 2002, D.H. and P.D. signed a D.Y.F.S. case plan, agreeing to attend substance abuse treatment scheduled to begin in January 2003. Pursuant to the plan, P.D.'s mother would supervise all contact between C.D. and her parents. Beginning in January 2003, D.H. and P.D. reported to D.Y.F.S. that they had begun the intake process to attend substance abuse counseling at JFK Behavioral Health Center (JFK) and that they had produced negative urine screens. D.H. subsequently reported to D.Y.F.S. on July 9, 2003, that she and P.D. had transferred their outpatient treatment to New Brunswick Counseling Center (NBCC).
Between July 2003 and November 2003, the family continued to meet with a D.Y.F.S. worker on a monthly basis. C.D. appeared healthy and well fed during the visits. Although D.H. and P.D. continued to report that they were attending outpatient substance abuse programs, and that their urine screens were negative, these claims were untrue and both ultimately acknowledged that they had not been participating in any drug treatment program.
On January 9, 2004, D.H. reported to the police that P.D. had kicked her in the back while she was descending the stairs at P.D.'s mother's home. Although she was holding C.D. at the time of the incident, the child was not injured. D.Y.F.S. made several unsuccessful attempts to meet with the family from January 2004 to March 2004. On April 1, 2004, D.Y.F.S. learned that contrary to the case plan, D.H. and C.D. had been living with D.H.'s mother. She had contacted D.Y.F.S. to report continued incidents of domestic violence between P.D. and D.H., including occasions when P.D. tied up D.H. and burned her with cigarettes.
On April 7, 2004, D.H. signed a second D.Y.F.S. case plan, once again agreeing to attend substance abuse treatment, and limiting all contact between C.D. and herself to supervised visits in the presence of D.H.'s parents, with whom they were now living. D.H. also informed D.Y.F.S. that she and P.D. had failed to complete their substance abuse program at NBCC, and had been using heroin until January 2004; she denied, however, any current use. D.H. reported to the caseworker that P.D. had become violent toward her several times, showing cigarette burns on her hands and arms, thus substantiating her mother's April 1, 2004, allegations. D.Y.F.S. referred D.H. to a domestic violence program.
The following day, with C.D. present, P.D. forced his way into D.H.'s parents' home by holding a knife to D.H.'s back. There, he stole money and property from the home while threatening to kill D.H. and her mother. P.D. was arrested and charged with robbery, terroristic threats, and harassment.
On April 15, 2004, D.Y.F.S. received yet another referral this time from the Cliffside Park Police. D.H.'s mother had complained that that her car was missing, and D.H. was using cocaine and marijuana, and had stolen money and other property. The police ultimately located D.H. and C.D. at J.H.'s home. Although both M.H. and C.D. appeared healthy, the police informed D.Y.F.S. that J.H.'s home was "disgusting," smelled of marijuana, and contained marijuana paraphernalia. Furthermore, contrary to the D.Y.F.S. case plan, D.H. had taken C.D. from her parents' home without any supervision.
On April 16, 2004, D.H. consented to C.D. being placed with her current caretakers, C.D.'s maternal aunt and uncle, in Old Bridge, New Jersey. On April 19, 2004, D.H. underwent a substance abuse evaluation, during which she admitted to past drug and alcohol abuse. She also informed the evaluator that she was living with her husband, J.H. and his family, that she was not currently using drugs, and that she had resumed her marital relationship with J.H. On April 26, 2004, she tested negative for all substances.
On May 7, 2004, D.Y.F.S. filed a verified complaint and order to show cause seeking supervision of C.D. On May 20, 2004, the judge ordered that C.D. be returned to D.H., who was living with J.H. at the time, with the condition that J.H.'s parents, who shared the residence, supervise C.D. The court also ordered D.H. to attend a substance abuse program. D.H. scheduled an intake appointment at the Department of Health and Addiction Services (DHAS) on May 12, 2004, but failed to attend.
On June 30, 2004, D.Y.F.S. was notified that P.D. had been released from jail, was using heroin and had stolen his mother's car. P.D.'s mother confirmed that D.H. had brought C.D. to her home and left two days later without the child. C.D. remained at her paternal grandmother's house until J.H. eventually picked her up. D.Y.F.S. contacted J.H. and D.H. who denied that C.D. had been at P.D. mother's house and denied any involvement in stealing the car.
DHAS subsequently informed D.Y.F.S. that D.H. had failed to attend her intake appointments on May 12, May 27, and July 21, 2004. In August 2004, D.H. notified D.Y.F.S. in writing that she had moved from New Jersey and that C.D. was living with P.D. and his mother. On August 19, 2004, DYFS initiated a search for D.H. On August 30, 2004, the judge granted D.Y.F.S. temporary legal custody of C.D., and pursuant to D.Y.F.S.'s new proposed case plan, ordered C.D. to remain with her paternal grandmother conditioned upon P.D. leaving the home until he completed a substance abuse evaluation. The case plan, executed and agreed to by P.D.'s mother, permitted supervised visits with C.D. at D.Y.F.S.'s offices, an opportunity P.D. exercised sporadically. D.Y.F.S. referred P.D. for substance abuse evaluation and a parenting assessment. However, after consideration of these reports that concluded P.D. was not prepared to parent C.D. and was likely abusing narcotics, on September 14, 2004, the judge again approved the placement of C.D. with her maternal aunt.
On November 22, 2004, D.H. was arrested on an active warrant and the police found a hypodermic syringe in her bag.
While in jail, D.H. informed a D.Y.F.S. worker that she had been living with P.D. prior to her arrest and had been using heroin everyday, "sometimes two times a day." On December 10, 2004, D.H. was released from jail and told her caseworker that she was drug free for the first time in a long time. However, this too was a lie since at trial D.H. admitted she had in fact continued to use drugs while incarcerated. Two days later, on December 12, 2004, D.H. entered a residential drug treatment program, where she remained for only two days. In February 2005, D.H. and P.D. were arrested for stealing D.H.'s mother's car; D.H. remained in jail for the theft until August 2005.
On August 19, 2005, D.Y.F.S. referred D.H. for substance abuse evaluation and drug screening for the fourth time; she failed to complete the process. On October 11, 2005, D.H.'s mother informed D.Y.F.S. that D.H. had contacted her for money to purchase drugs and that D.H. was again living with P.D.'s mother.
On November 4, 2005, D.H. informed D.Y.F.S. that she wanted C.D. to remain with her sister in Virginia, where C.D.'s aunt and family had moved in August 2005. D.H. also agreed to execute an identified surrender at the next court hearing and declined D.Y.F.S.'s offer of further services. However, D.H. failed to appear at the November 17, 2005, court hearing.
D.Y.F.S. initiated a search for D.H., whose whereabouts were again unknown, and on January 17, 2006, it filed a verified complaint for guardianship and termination of D.H.'s and P.D.'s parental rights.*fn1 In February 2006, P.D. died of a drug overdose. Eventually, D.Y.F.S. located D.H. in a twenty-eight day detoxification program at New Hope Foundation (New Hope) which she had entered on May 8, 2006. New Hope reported on June 1, 2006, that D.H. showed motivation towards recovery and was working "diligently" in resolving "her treatment issues," and determined that D.H. should enter a "long-term residential facility to continue her treatment." On June 6, 2006, D.H. entered Epiphany House and was placed in its one-year transitional housing facility. On July 19, 2006, D.H. was reported to be in compliance with the program; however, on August 3, 2006, Epiphany House reported that D.H. had some problematic behaviors. It was subsequently reported that D.H. was breaking house rules, violating her treatment plan, and unable or unwilling to resolve her behavioral problems.
On August 13, 2006, D.H. left the facility. In its discharge summary, Epiphany House indicated that D.H. "was unable or unwilling to make and sustain the required behavioral changes." At trial, D.H. testified that she had left the facility because of conflicts with the staff and others in the program, and that she did not relapse into substance abuse after leaving the facility.
Following her departure from Epiphany House, D.Y.F.S. referred D.H. for a substance abuse evaluation during which D.H. admitted to past drug use; but, in contrast to her previous assertions, she denied having ever been physically abused or harmed by anyone in her lifetime. The evaluator recommended outpatient drug treatment and D.H. entered the North Hudson Community Action Corporation's (North Hudson) drug treatment program in September 2006. D.Y.F.S. also provided additional services to D.H., including monthly bus passes to facilitate her attendance at the program and transportation for D.H. to visit C.D. in Virginia. D.H. also began working for her father's business part-time.
North Hudson reported her to be in full compliance with the program and to have a positive attitude about her recovery. A subsequent report on January 3, 2007, stated that D.H. continued to be involved in the drug treatment program and that she had a "serious attitude about recovery," although her counselor noted that no discharge date had yet been determined.
At the trial that commenced on January 8, 2007, D.Y.F.S.'s Family Service Specialist Christy Conway testified that based upon her observations made during two visits to the maternal aunt's home in Virginia, C.D. was "an integrated member" of the aunt's family, that C.D. was thriving, and that her needs were being met. Conway, an adoption specialist, also expressed D.Y.F.S.'s concern that because D.H. was still new to recovery, reunification with C.D. was inappropriate. Conway noted D.H.'s lack of stable housing and that she was currently living with her mother, someone with whom she had "a conflict[ed] relationship."
Dr. Frank J. Dyer also testified at trial on D.Y.F.S.'s behalf. Dyer noted D.H. admitted during a clinical interview that: 1) she abused prescription medication while pregnant with C.D.; 2) she abused alcohol while living with her husband, J.H.; 3) she stole and panhandled to obtain money for drugs; 4) she continued to use drugs while she was incarcerated; and 5) she failed to report to probation because she was using drugs. D.H. also told Dyer that she would be ready to care for C.D. in another three or four months and that she did not believe C.D. would have any problems adjusting to her return to her mother's custody. D.H. explained that she had neglected to visit C.D. between September 2004 and August 2006 because of outstanding arrest warrants and her drug abuse.
Dyer found D.H. had a personality disorder with "prominent
[h]istrionic and [a]ntisocial features," but without psychiatric or cognitive impairment. Dyer also concluded that D.H. had a severe drug addiction with a poor prognosis for a stable recovery. He opined that D.H. was "superficial, emotionally labile, manipulative, and dependent on others," that "she crave[d] attention, and [was] adept at engaging others through a self-dramatizing interpersonal style to get them to meet her need of the moment," and that she was in a "very early stage [of] . . . recovery." Dyer also noted that D.H.'s drug abuse problems were complex and not solely the result of her relationship with P.D. Given D.H.'s "prominent antisocial dimension," Dyer opined she was at "high risk for becoming involved with another antisocial partner who would be able to supply her with drugs."
Dyer also performed a bonding assessment between C.D. and D.H. on October 25, 2006. He determined that although C.D. was aware that D.H. is her mother and has a positive tie to her, there was no bond or attachment.
Dyer also performed a bonding assessment of C.D. and her maternal aunt and uncle. He testified that in contrast to D.H., C.D. had developed a profound attachment to her caretakers and that if removed, she would likely suffer a regression in development and behavior. Dyer also opined that D.H. represented past traumatizing incidents in C.D.'s memory that could be re-awakened if D.H. regained custody and that this could have "lasting adverse effects on [C.D.'s] emotional security, mood regulation and anxiety regulation." While noting some mild developmental concerns, Dyer found it impressive that despite her previously chaotic life with D.H., C.D. had flourished under her aunt's care.
Dyer opined that terminating D.H.'s parental rights would have minimal impact on C.D. "because of the extended period in which she had not had any contact with her mother." Dyer noted that 1) D.H.'s psychological profile had negative implications "in terms of parenting capacity"; 2) D.H. had a substantial risk for relapse into drug abuse that would endanger any child in her care; 3) D.H. suffered from an "excessive dependence on other people and [a] tendency to be manipulative and menacing to get her own ends"; 4) D.H.'s strategy of evasion and manipulation gave her a poor prognosis for positive changes; and 5) it would be impossible to supervise D.H.'s care of C.D. given D.H.'s "tendency to have contempt for rules and laws and not to be particularly compliant with the demands of authority figures."
Dyer also testified that D.H.'s relatively short period of recovery since September 2006 did not alter his conclusions because "the vast majority of similarly situated clients  managed to achieve sobriety for a matter of months . . . [but] relapse[d] when nobody was directly looking over their shoulders." Given D.H.'s repeated failed recovery attempts, Dyer was skeptical about her prognosis for recovery and opined that no conclusions about her continued success could be made until she achieved a period of two years' abstinence.
D.H. testified regarding the history of D.Y.F.S.'s involvement with her, her daughter, P.D., and their families. She acknowledged that she failed to follow court orders regarding substance abuse counseling, failed to attend court proceedings, and failed to visit C.D. between September 2004 and August 2006 because of her drug addiction.
Nevertheless, she claimed that P.D.'s death from a drug overdose shocked her into realizing the need to obtain substance abuse counseling. She testified that since May 5, 2006, when she checked into a detoxification program, she had remained drug free.
D.H. also claimed that she and J.H. had reconciled and she was prepared to begin family life again with him and their daughter, M.H. She claimed that J.H. and M.H. have traveled to Virginia to spend time with C.D. and that there is a close relationship between all of them.
Dr. Laurie Lessin testified regarding her November 1, 2006, psychological evaluation of D.H. Lessin opined that: 1) D.H.'s poor functioning in the past was a result of drug use; 2) D.H. was currently abstaining from drugs and thus functioning properly; and 3) D.H. did not suffer from any mental disability that would make her incapable of parenting. However, Lessin acknowledged that none of the tests she conducted on D.H. included any assessment related to parenting. In contrast to Dyer's findings, Lessin did not find D.H. to be manipulative or overly dependent on others.
However, Lessin agreed that D.H.'s proposed plan of reuniting with J.H. and assuming the care of both children would not "be the most appropriate move" given D.H.'s history of troubled relationships and frequent re-location from place to place. Lessin concluded that D.H. was ready to begin the process of reunification, and conceded that it would be at least another six months before actual reunification between the mother and child could occur.
D.H.'s other expert witness, Dr. Arnaldo Apolito, also conducted a bonding assessment in late October 2006. Apolito noted that C.D. had referred to her aunt as "mommy" and to her cousins as her brothers. Apolito observed that C.D. did not acknowledge D.H., denied that D.H. was her mother, and stated that she did not wish to live with D.H.
Apolito opined in his testimony that C.D. "had not formed a very solid bond with her foster family." Yet, he admitted that his report noted that C.D. wished to remain with her aunt, had received "loving good care" from her, and had "obviously, developed a strong bond with [her aunt] and her family . . . ." While he expected C.D. to experience some significant problems in transition from her foster family to D.H., Apolito did not believe such a change would cause permanent psychological harm. He recommended that D.H. regain custody of C.D. because "the biological parent is fit to parent the child, naturally." Apolito opined that D.H. had "never actually lost sight of the interest of [C.D.]," despite her years of drug addiction, domestic violence, and incarceration. He conceded, however, he reached these conclusions based upon his knowledge of child development generally, and not upon his clinical observations of C.D. and D.H. together.
Following this testimony, on January 26, 2007, the trial judge issued his written decision and executed a judgment of guardianship that terminated D.H.'s parental rights. The judge concluded: 1) that D.H. had neglected C.D.; 2) that C.D. "would be at great risk if returned to [her mother's] care; 3) that "[D.Y.F.S.] made reasonable efforts to find relatives to care for [C.D.] and successfully placed her with a maternal aunt who ha[d] cared for her for over two years and would now like to adopt her"; 4) that "[C.D.'s] best interest w[ould] be served by termination of [D.H.]'s parental rights, freeing [C.D.] for adoption by her maternal aunt"; and (5) that "termination of [D.H.]'s parental rights w[ould] not do more harm than good." This appeal ensued.
In reviewing the factual findings and conclusions of a trial judge sitting without a jury, we give deference to the judge's credibility determinations and "the judge's 'feel of the case' based upon his or her opportunity to see and hear the witnesses." Div. of Youth and Family Services v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007). We will not "disturb the judge's findings of fact unless they are 'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412, (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, (1974)). The conclusions that logically flow from those findings of fact "are, likewise, entitled to deferential consideration upon appellate review." R.L., supra, 388 N.J. Super at 89. This is particularly true in litigation before the Family Part "[b]ecause of the family courts' special jurisdiction and expertise in family matters." Cesare, supra, 154 N.J. at 413.
Although recognizing "the inviolability of the family unit" and the basic "rights to conceive and to raise one's children," Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed. 2d 551, 558 (1972), the Supreme Court has nonetheless noted that such essential rights must be balanced against the state's need to "control  parental discretion in dealing with children when their physical or mental health is jeopardized." A.W., supra, 103 N.J. at 599 (citations omitted). In order to terminate parental rights, D.Y.F.S. must "provide the parents with fundamentally fair procedures," id. at 612, and establish by the requisite clear and convincing evidence each element of the four-prong standard delineated by N.J.S.A. 30:4C-15.1(a). These four prongs "are not discrete and separate," but rather "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).
D.H. does not challenge the judge's conclusion with respect to the first prong of the statutory test. However, she argues that as to the remaining three prongs, D.Y.F.S.'s proofs were deficient.
The second prong relates to parental unfitness. To satisfy the second prong, D.Y.F.S. must show that "the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm." K.H.O., supra, 161 N.J. at 348-49, 352. That harm can also exist whenever the neglect or inattention of the parent results in the child's development of a "stronger, bonding relationship to [her] foster parents." Id. at 352. Further, "if there is clear and convincing evidence that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of her bond with foster parents, this will satisfy N.J.S.A. 30:4C-15.1(a)(2)." Id. at 363.
D.H. argues that the judge erred in concluding D.Y.F.S. had proven she was unwilling or unable to remedy the harm that caused C.D.'s removal in the first place. She contends that the judge essentially shifted the burden of proof by requiring that she establish she would remain drug-free, as she had been for the eight months prior to the trial, instead of requiring D.Y.F.S. to prove the likelihood of her relapse into addiction.
We would disagree. Although the trial judge's opinion was less than exhaustive in this regard, the evidence amply supports the conclusion that D.H. has not corrected the problem, her severe and pernicious drug addiction, which caused the harm to C.D. in the first place. We, of course, recognize the positive steps D.H. has taken to finally address the issue. However, the judge was entitled to credit Dyer's conclusion that her road to recovery was not likely to succeed given her past history and her personality traits. The judge did not shift the burden of proof; rather, he simply accepted D.Y.F.S.'s proof that after years of denying that she even had a substance abuse problem, D.H.'s relatively recent successful efforts were not likely to eliminate the problem.
D.H. also argues that the judge improperly concluded that she had not provided for a safe and stable home for C.D. First, D.H. claimed that she was considering reunification with her husband and their daughter. Alternatively, she proposed that she could remain with her parents. D.H. contends that because she had not chosen a particular alternative, the judge concluded she was unable to provide C.D. with a stable and safe home.
We find no merit to this argument. It is an unassailable fact that prior to the removal of C.D. from her care, D.H. had failed to provide any stability in the child's home life. C.D. was shuttled from grandparent to grandparent when not otherwise leading a nomadic life that was a corollary to D.H.'s drug addiction. D.H. had a history of unstable relationships with both J.H. and her mother, the two people with whom she proposed C.D. would live upon reunification.
D.H. further argues that the trial judge erred in concluding D.Y.F.S. had established sufficient proof under the second prong because it failed to prove that a "delay in permanent placement . . . will add to the harm [C.D.] has already suffered." Citing our decision in Div. of Youth and Family Services v. F.M., 375 N.J. Super. 235 (App. Div. 2005), she argues that the "fundamental focus of the inquiry is not whether the parent is now fit, but whether the parent can become fit in time to meet the needs of the child." Id. at 263 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). D.H. argues that without proof that delay in placing C.D. was detrimental, and given her recent sobriety, D.Y.F.S. failed to prove the second prong.
This contention, however, ignores the significant differences between the facts in F.M., and the facts presented here. In F.M., noting the judge's factual findings were unsupported by the record, we observed, although "the judge's assertion" that "this case [was] not just about a messy house and a minor rash," "the suggestion that the case was ever about more than that simply does not withstand scrutiny." F.M., supra, 375 N.J. Super. at 262. We also noted the lack of any evidence that the mother in that case had any alcohol or drug addiction. Id. at 261.
As we noted in Div. of Youth and Family Services v. C.S., 367 N.J. Super. 76 (App. Div.), certif. denied, 180 N.J. 456 (2004),
The emphasis [in the statutory scheme] has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being. A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement. [Id. at 111 (internal citations omitted).]
Here, C.D. had not seen her mother for over two years while she remained in the care of her aunt. Dyer's testimony amply supported the conclusion that the child now viewed her aunt as the person who would care, love, and nurture her, and that any disruption of that bond would have severe implications for C.D.'s future mental health. Moreover, the judge accepted the testimony that D.H.'s prognosis for rehabilitation was poor, thus, supporting the conclusion that any delay in a permanent placement could not reasonably be based upon an expectation that D.H. would soon become a fit parent.
D.H. argues that D.Y.F.S. cannot "prevail on prong three . . . because the [judge] did not consider the alternative of continued temporary placement with relatives . . . until reunification . . . can be achieved." D.H. contends that since C.D. was doing well living with her aunt and uncle in Virginia, and since D.H. was doing well in her rehabilitative efforts, it was error on the part of the judge to order termination of her parental rights rather that maintaining the current placement.
For reasons similar to those expressed above, we find this argument unpersuasive. C.D. has the right to a stable and safe home. She has been in her aunt's home for several years, has bonded with her aunt, and has seen little of her natural mother. Defendant's argument would be more persuasive if the evidence regarding the harm caused by any severance of the relationship between C.D. and her aunt was more equivocal; but, it is not. "Recognizing the natural tendency to want to continue working with parents to restore the family unit, we have cautioned that placement plans must not lose sight of time from the perspective of the child's needs." K.H.O., supra, 161 N.J. at 357. We find no error on the part of the trial judge in determining that the time had indeed come to address C.D.'s need for a permanent, safe, and stable home.
Lastly, D.H. argues that D.Y.F.S. failed to establish by clear and convincing evidence that termination of her parental rights would not cause more harm than good. This fourth and final prong requires the court to look into the child's relationships with her biological parents and her foster parents. "Weighing the potential harm that terminating [the child's] relationship with her mother against that which might come from removing her from her foster home is painfully difficult, but it is a decision that necessarily requires expert inquiry specifically directed to the strength of each relationship." K.H.O., supra, 161 N.J. at 355 (quoting J.C., supra, 129 N.J. at 25). The court must determine whether, "after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with the foster parents." Ibid.
Here, the judge concluded that D.Y.F.S. had demonstrated C.D. was flourishing in her relationship with her foster family and that it was her aunt and uncle, not D.H., who provided a relationship filled with affection, stability and physical protection. The judge's findings were consistent with the conclusions reached by Dyer, who testified that there was no bond or attachment between D.H. and C.D., and that C.D. was ambivalent to her biological mother. This was in stark contrast to his testimony regarding C.D.'s bond with her maternal aunt. Because the judge's decision logically flowed from these findings of fact, we conclude there was no error in his determination that D.Y.F.S. had proven the fourth prong by clear and convincing evidence. Cesare, supra, 154 N.J. at 412.