February 15, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF G.P. AND A.C., MINORS.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.C., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Hudson County, FG-09-127-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 16, 2008
Before Judges Axelrad, Sapp-Peterson and Messano.
S.C. and J.C., the parents of five-year-old A.C., appeal from the March 9, 2007 Family Part judgment terminating their parental rights. The law guardian for A.C. argues in favor of termination of her parental rights. S.C. is the mother of twelve-and-a-half-year-old G.P., whose putative father is J.F.*fn1 S.C. also appeals from the order terminating her parental rights to G.P., and G.P., through his law guardian joins in the appeal.
S.C. and J.C. contend the Division of Youth and Family Services (DYFS) failed to prove by clear and convincing evidence the requisite statutory prongs to establish that the best interests of A.C. required severance of their parental ties. With regard to G.P., both S.C. and the law guardian emphasize that DYFS failed to adequately consider his special needs and strong bond with his mother, as well as the potential availability of a placement with his maternal aunt, M.P.I. The law guardian urges that G.P.'s special needs and age make him difficult to place, and argues that by terminating his mother's parental rights, the court has effectively made him a legal orphan.
After considering the record and briefs in light of the applicable law, we are satisfied the trial judge's findings and conclusions with regard to A.C. are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., New Jersey Div. of Youth and Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part and remanded, 179 N.J. 264 (2004). Accordingly, we affirm the portion of the order terminating the parental rights of S.C. and J.C. to their daughter A.C. substantially for the reasons set forth in the court's comprehensive oral decision following the four-day trial.
We agree with many of the arguments advanced by S.C. and the law guardian as to G.P., however, and reverse the order terminating S.C.'s parental rights to G.P. We remand and direct DYFS to explore long term foster placement of G.P. with his maternal aunt, M.P.I., with the provision of specialized services to address G.P.'s multitude of needs, and if that placement is not acceptable to DYFS, to explore such other alternatives to termination as the agency deems appropriate. The termination complaint shall be restored as to G.P. so that if the alternative placements are not feasible, DYFS may return to court and present further evidence as to the third and fourth statutory prongs.
G.P. was born on April 11, 1995 in Brazil. S.C. left G.P. in Brazil with her parents when he was about two years old to live with her sister in the United States. S.C. returned to Brazil for a short period of time during which J.F., the boy's putative father, threatened, stalked and eventually shot S.C. in front of G.P. when he was six years old. J.F. had no further contact with them as he was incarcerated for a period of time and S.C. brought the child to the United States.
S.C. and J.C. married in 2001. A.C. was born on December 20, 2002 in New Jersey. J.C.'s history with DYFS began in October 1990 as a result of several incidents with his former wife, and continued through 1994. J.C. and his first wife eventually divorced and he is currently estranged from his two older children from that marriage.
The record discloses that DYFS' initial involvement with J.C. and S.C. commenced in November 2002. There were several referrals over a six-month period alleging drug use by the parties and domestic disputes; however, DYFS found abuse and neglect to be unsubstantiated. DYFS again became involved with the family following a domestic dispute on March 9, 2004 in which S.C. obtained a temporary restraining order (TRO) against J.C. as result of a domestic violence incident. The police arrived and sent S.C. and the children to Providence House, a safe haven house for women. J.C. informed DYFS that S.C. used drugs and alcohol, was trying to kill him, and intended to kill herself. Upon investigation, DYFS learned about J.C.'s use of pain killers and tranquilizers, as well as cocaine; J.C.'s physical abuse and threats to S.C. in the children's presence; and the numerous times that the police had been called to the house regarding domestic violence incidents between the parties.
S.C. and the children then returned home and J.C. remained at his mother's house. J.C., S.C., and J.C.'s mother signed an in-home case plan providing that: the parents would provide a safe environment free of substance use, domestic violence, and corporal punishment; the parents would comply with substance abuse and psychological evaluations, anger management counseling and in-home counseling services, and all recommendations; J.C. would not live in the home pending psychological and substance evaluations and the starting of anger management counseling; J.C.'s visits with the children would be supervised by his mother or sister pending those evaluations; and the parents would follow up weekly with a school social worker regarding G.P.'s mental well-being. S.C. dismissed the TRO.
Dr. Alan Lee, a psychologist, evaluated J.C. and diagnosed him with dysthymic disorder; anxiety disorder NOS; history of panic disorder without agoraphobia; history of cocaine, cannabis and amphetamine abuse; intermittent explosive disorder; and personality disorder NOS with narcissistic and paranoid and anti-social traits. He recommended ongoing psychotropic medication monitoring, a DYFS-approved anger management program, a domestic violence perpetrator program and parenting education program, individual or group counseling, and a random urinalysis to monitor for illicit drug abuse, and, if necessary, a comprehensive substance abuse evaluation.
Dr. Lee diagnosed S.C. with depressive disorder NOS; anxiety disorder NOS; post-traumatic stress disorder; history of cannabis and cocaine abuse; and dependent, borderline, and histrionic personality traits. He noted S.C.'s recounting to him of a history of domestic violence incidents with J.C. The psychologist recommended an expedited psychiatric evaluation of S.C. to consider the effect of mood stabilizing and anti-depressant medications, ongoing individual counseling, a domestic violence victim program, random urinalysis for drug usage, a DYFS-approved parenting education and anger management program, and ongoing DYFS monitoring and frequent unannounced visits to help ensure she was not having ongoing contact with J.C.
On May 23, 2004, Stafford Township police responded to a domestic violence call at the residence of S.C. and J.C. and reported the call to DYFS. Both parties alleged violence: S.C. claimed that J.C. hit her while she was holding A.C., then seventeen months old, while J.C. alleged that S.C. had been drinking and taking pain medications while taking care of the children and she had slapped him. The police observed redness and swelling behind S.C.'s right ear and S.C. admitted to slapping J.C. during the altercation. S.C. tested positive for alcohol use. G.P. told the DYFS worker that he was afraid of J.C., that J.C. had hit him, and that he had witnessed J.C. hit his mother. S.C. once again obtained a TRO against J.C. She also signed another in-home case plan agreeing, in relevant part, to keep the restraining order against J.C. and to provide a home free of drugs, alcohol and domestic violence. The plan also initially provided for the children's maternal aunt, M.P.I., to provide supervision but thereafter provided for J.C.'s mother to provide primary supervision and M.P.I. to substitute at any time.
S.C. apparently dismissed the TRO in June 2004. When DYFS learned that S.C. and J.C. had begun living together and that the in-home case plan was no longer being followed, it filed an abuse and neglect complaint and order to show cause on October 1, 2004, pursuant to which the children were removed from their home and placed in a foster home. Although J.C. had started anger counseling on October 22, 2004, a verbal confrontation with the children's foster father led to a November 29, 2004 court order prohibiting J.C. and S.C. from contacting the foster family and being within five miles of the foster home and further required them to comply with visitation program policies. A urine screen of J.C. tested positive for cocaine. DYFS continued to substantiate allegations of violent behavior, substance abuse and alcohol abuse involving J.C. and S.C., including incidents in which the police responded to their disturbances. S.C. and J.C. also continued to maintain contact with one another despite the recommendation to the contrary by DYFS and the professionals.
On April 6, 2005, the court directed the parents to name any potential caretakers for the children within ten days and directed DYFS to investigate whether J.C.'s sister, C.B., or the maternal aunt, M.P.I., could act as relative caregivers. The order listed C.B.'s address but stated that S.C. would provide M.P.I.'s contact information within ten days. A "rule out" letter was sent on April 14, 2005 to C.B., as she would not be able to care for the children until September 2005. On April 18, 2005, DYFS sent a letter to S.C. and M.P.I. at S.C.'s address ruling out M.P.I. as a relative caregiver to the children because of S.C.'s failure to provide DYFS with her sister's contact information within the time period prescribed by the order.
In the interim, J.C. and S.C. had supervised visitation with the children and availed themselves of services offered to them by DYFS. The children were returned home to both S.C. and J.C. on December 22, 2005. However, less than a month later, on January 21, 2006, S.C. was arrested in Brick Township for a domestic violence assault against J.C. as the result of an incident that took place after J.C. and S.C. had a verbal altercation in the car while J.C. was driving. S.C., apparently intoxicated, punched J.C. and pulled his shirt and then attempted to jump out of the moving vehicle with the children. S.C. was arrested for assault and DYFS permitted the children to return home with J.C. after he signed an in-home case plan providing that he would not permit S.C. to return to the home until further authorized. J.C. did not comply, however, as on April 4, 2006, the law guardian observed S.C. at the home during a visit.
S.C. was permitted to return to the home in May and the family relocated to Hudson County after they were evicted from their apartment in Ocean County. On June 19, 2006, the Kearny Police Department was contacted regarding a domestic dispute at the home of J.C. and S.C. When the police arrived, they observed that S.C.'s lower lip was bleeding and she related that J.C. had punched her over an argument about him using her computer. J.C. was arrested for simple assault and S.C. obtained another TRO against him. On June 20, 2006, DYFS removed A.C. and G.P. from the home and placed them in a foster home. On or about June 22, 2006, DYFS filed for and was granted custody, care and supervision of both children, the court having found that despite six months of attempted reunification and the parents' cooperation with multiple services, the children were still at risk.
At the review hearing on August 16, 2006, the court ordered both parents to attend psychological evaluations as well as their respective substance abuse treatment programs, and further directed DYFS to file for termination of parental rights, or kinship legal guardianship, with a concurrent plan of a reunification, no later than October 12, 2006, as neither parent had completed substance abuse treatment. On October 3, 2006, DYFS filed its complaint for guardianship seeking to terminate the parental rights of J.C. and S.C. to their children. S.C. and J.C. continued to have separate, supervised visitation pending the outcome of the trial.
The judge conducted a four-day trial in March 2007, in which he heard testimony from the following State's witnesses: Patrolman Vincent Coburn of the Brick Township Police Department respecting the January 21, 2006 domestic violence incident; Dr. Robert Clyman, who the court found qualified to testify regarding psychological evaluations, parenting ability, and bonding issues; Cheryl Vellman, the DYFS caseworker; Juan Rios, the DYFS adoption specialist; and Patrolman William Troche of the DYFS unit of the Human Services Police regarding J.C.'s extensive domestic violence case list. J.C. presented the expert testimony of Dr. Gerard Figurelli, who performed a psychological evaluation of him and a bonding evaluation of him and A.C. Neither J.C. nor S.C. testified at trial.
The record was replete with evidence of the lifestyle of volatility and significant domestic violence between S.C. and J.C. Dr. Clyman testified that J.C. and S.C. admitted their history but differed on their versions as to who was the perpetrator of the domestic violence and stated his belief that there was an intensity to the attachment between S.C. and J.C. that kept them together in spite of the fact that each believed that the other was the victimizer. He expressed a concern that both parents exposed the children to "persistent family dysfunction." Dr. Clyman opined that S.C. and J.C. engaged in the services provided by DYFS only to appease DYFS and persuade the judge to return their children, not with a recognition that he or she had a problem that needed to be worked on or an intent to repair their ongoing violent situation. He noted that although S.C. was settled on divorce, J.C. was ambivalent about whether he and S.C. should reconcile or separate. Dr. Clyman was of the opinion that the parents did not learn from their past mistakes and could not commit to being apart, leaving them "vulnerable to coming back together," and he thus concluded the children could not safely return to either parent.
Based on his psychological evaluation, Dr. Figurelli noted J.C. had a history of a highly conflicted, dysfunctional, volatile and co-dependent relationship with S.C. He believed that J.C.'s continuing relationship with S.C. could lead to a repetition of the "destructive dynamics that . . . have characterized their relationship in the past" and if J.C. was able to remain away from S.C., continue with counseling, and avoid "other potentially volatile amorous relationships," he could act as an adequate parent. On cross-examination, the defense expert admitted he was unaware of J.C.'s prior marriage, estrangement from his oldest children, and other psychological evaluations, and that a diagnosis of explosive disorder in J.C. would have significantly affected his evaluation.
Dr. Clyman was of the opinion that A.C. was attached to her parents but that she did not view them as her psychological parents and because of her young age, and having spent nearly half her life in foster care, he believed she could adapt to a number of situations and "prosper" in a competent foster home. Dr. Figurelli, however, testified, based on his bonding evaluation of J.C. and A.C. that she "would suffer a significant emotional loss if her relationship to her biological father were terminated."
Dr. Clyman described G.P. as a "very troubled boy." He noted that G.P. has had a number of disrupted placements from Brazil to the United States and removals from his mother's custody in this country; he has been exposed to domestic violence on multiple occasions, including witnessing his father shoot his mother and living in a household with persistent domestic violence between his mother and step-father; combining to lead to a sense of anxiety, insecurity, and the emergence of problem behavior. Dr. Clyman related that G.P. has had fire-setting incidents and an incident of killing an animal and exposing himself. The psychologist opined there was an escalation of anti-social behaviors by G.P. and the emergence of "disordered, anti-social, perhaps sadistic manifestations that really cry out for treatment." Dr. Clyman also expressed concern over G.P.'s physical aggression towards A.C., and even though he loved her, was concerned that she would be a "safe target for venting" and therefore recommended the brother and sister be separated in placement.
Moreover, although Dr. Clyman testified that G.P. had a very real attachment to S.C. and viewed her as his psychological parent, and was concerned that severing his ties to her would probably result in further acting out behavior, he was of the opinion S.C. was not fit and would not in the foreseeable future be fit to care for her son. Dr. Clyman testified that termination was warranted because G.P. needed finality, and he recommended placement in a therapeutic treatment home either as a transitional or final placement. On cross-examination, Dr. Clyman related that G.P. said he liked his aunt M.P.I., but they did not discuss whether he would like to live with her and the psychologist did not analyze whether she was a viable placement.
DYFS worker Rios testified that he had the contact information for M.P.I. prior to the date the agency sent the April 2005 "rule out" letter. He noted that the maternal aunt again indicated her willingness to care for the children in June 2006, after their final removal from J.C. and S.C.'s household. According to Rios, however, she was not considered because DYFS understood she and her husband had criminal records, which it was later ascertained were either disorderly persons violations or possibly dismissed in municipal court; because their apartment had only two bedrooms and a third bedroom would be required for DYFS licensing requirements for the two children; and because of discord between them and J.C., which could affect the family dynamic with A.C.
The court permitted M.P.I. to make a short statement at trial in which she indicated that she liked both children and would take care of them and never had a problem before with G.P. in her house.
G.P.'s law guardian argued that DYFS did not follow up with the April 2005 court order and pursue M.P.I. as a relative caretaker, causing G.P. to endure nearly two years of foster care, in contravention of the third statutory prong. The law guardian further argued that termination of S.C.'s parental rights would do more harm than good because it would result in G.P. becoming cut off from his family in a situation where he was highly unlikely to be adopted, in contravention of the fourth statutory prong. The law guardian argued that the best interests of G.P. did not require severance of maternal ties but, rather, reinstatement of the abuse and neglect proceeding and placement of the troubled teenager with his maternal aunt, with specialized services available and the ability to have continued contact with his mother. G.P.'s law guardian urged that if DYFS was unable to approve M.P.I. as a family placement, that a backup plan to termination could be long-term specialized care and then an independent living situation.
A.C.'s law guardian supported termination of S.C. and J.C.'s parental rights so she could achieve finality and potential adoption.
DYFS supported termination of J.C. and S.C.'s parental rights to both children while conceding that G.P.'s placement would be difficult and M.P.I. was a potential placement for him if she passed a psychological evaluation.
Having observed and considered the testimony of the witnesses, examined the exhibits entered into evidence, and heard arguments by counsel, the court concluded that A.C. and G.P.'s best interests required severance of their parents' ties. The judge made detailed findings of fact and credibility, noted the applicable law, and found that DYFS had established by clear and convincing evidence the four-prong test for termination of parental rights as set forth in New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986), and as codified in N.J.S.A. 30:4C-15.1. The court entered the March 9, 2007 judgment of guardianship terminating J.C. and S.C.'s parental rights to A.C., and S.C. and J.F.'s parental rights to G.P. The order permitted the parents to have monthly visits with A.C. for three months and the conducting and ending of visitation with G.P. was to be determined by his therapist. Both J.C. and S.C. appealed. G.P., through his law guardian, joined in S.C.'s appeal.
At the outset, we note our limited scope of review of the Family Part's factual findings. In reviewing the factual findings and conclusions of a trial court, we are obliged to accord deference to the trial judge's credibility determinations and the judge's "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. A.R.G., supra, 361 N.J. Super. at 78 (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." New Jersey Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). We rely upon the trial court's acceptance of the credibility of the expert's testimony and the court's fact-findings based thereon, as it is in a better position to evaluate the witness' credibility, qualifications, and the weight to be accorded to the experts' testimony. Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 19 (1992).
We are not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc., v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). Additionally, because of the family court's special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding and the conclusions which flow logically from those findings of fact. Cesare, supra, 154 N.J. at 412-13; Div. of Youth & Family Servs. v. M.M., 382 N.J. Super. 264, 271-72 (App. Div.), certif. denied in part, 186 N.J. 606 (2006), rev'd in part, 189 N.J. 261 (2007) (citing Rova Farms, supra, 65 N.J. at 483-84).
The applicable principles are well settled. "Parents have a constitutionally protected, fundamental liberty interest in raising their biological children." In re Adoption of a Child by W.P. and M.P., 308 N.J. Super. 376, 382 (App. Div. l998), vacated on other grounds, 163 N.J. 158 (2000) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed. 2d 599, 606 (1982)). "The Federal and State Constitutions protect the inviolability of the family unit." W.P. and M.P., supra, 308 N.J. Super. at 382 (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed. 2d 551, 558-559 (1972)). However, the government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 L.Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S.Ct. 1526, 1540, 32 L.Ed. 2d 15, 33 (1972)). The State, as parens patriae, may sever the parent-child relationship to protect the child from serious physical and emotional injury. W.P. and M.P., supra, 308 N.J. Super. at 382.
When the child's biological parent resists termination of parental rights, it is the court's function to decide whether the parent can raise the child without causing harm. J.C., supra, 129 N.J. at 10. The cornerstone of our inquiry is not whether the parent is fit, but whether the parent can become fit to assume the parental role within time to meet the child's needs. Ibid. (citing A.W., supra, 103 N.J. at 607). "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." J.C., supra, 129 N.J. at 10. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." W.P. & M.P., supra, 308 N.J. Super. at 383 (quoting J.C., supra, 129 N.J. at 10).
The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383. The State Constitution and N.J.S.A. 30:4C-15 and 15.1a require satisfaction of the "best interests of the child" test by clear and convincing evidence before termination of parental rights can occur. See A.W., supra, 103 N.J. at 612; In re Guardianship of Jordan, 336 N.J. Super. 270, 274 (App. Div. 2001).
Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1a requires the Division to 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 resource family [formerly referred to as "foster"] 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.
These standards are neither discrete nor separate. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). They overlap to provide a composite picture of what may be necessary to advance the best interests of the children. Ibid. "The considerations involved in determination of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).
Our examination of the record discloses that all four prongs of the test as they pertain to A.C. have been met by clear and convincing evidence. The record is replete with evidence that both J.C. and S.C. have harmed their daughter by their volatile relationship, numerous incidents of domestic violence and drug and alcohol abuse, persistent unemployment, and lack of stable housing. As to the first two prongs, the court appropriately found that despite both parties' transparent efforts to comply with specific and targeted services provided by DYFS to address their problems, J.C. and S.C. have remained mired in the cycle of domestic violence that they have not rehabilitated, making it unlikely that the destructive environment will be rectified in the foreseeable future. Noting that the "best predictor of future behavior is past performance," and that J.C. and S.C. had frequently separated and then reconciled as a resulting episode of domestic violence, police intervention and restraining orders, the court had ample basis to conclude that both parents possessed a lack of commitment to their permanent separation from one another and, therefore, a commitment to ensure the protection of their young daughter. Both parents also continued to abuse drugs and alcohol did not complete substance abuse programs, which added to the family's instability.
DYFS has provided a myriad of services to J.C. and S.C. and has attempted reunification of A.C. with either or both of her parents, but to no avail. Although DYFS was less than diligent in its exploration of the maternal aunt as a potential placement for A.C., under the totality of the circumstances we are satisfied the trial court correctly concluded that DYFS had met the third prong of considering alternatives to termination.
The trial court also properly determined that DYFS satisfied the fourth prong, that termination of J.C. and S.C.'s parental rights will not do more harm to A.C. than good. The court credited the testimony of Dr. Clyman and his conclusion that in view of the "family dynamic interaction" of the parties, J.C. and S.C. were unfit to parent A.C. and would remain unfit to parent her in the foreseeable future. There was ample support in the record for this determination. The court was satisfied that A.C.'s need for stability and permanency, and the possibility of adoption, would substantially outweigh any harm that A.C. would experience as a result of the termination. As we concluded in In re Guardianship of A.R.G., 318 N.J. Super. 323, 330 (App. Div.), certif. denied, 162 N.J. 127 (1999), where there is substantial credible evidence in the record to support termination of parental rights, there is no reason to delay permanent resolution. A child cannot afford to wait until such time as her parents might be fit caretakers, especially where, as our record indicates, J.C. and S.C. are unlikely to ever obtain that status in sufficient time to benefit A.C. See ibid. Freeing A.C. up for adoption will not do more harm than good, and will provide hope and stability to a young child who desperately deserves a stable family commitment.
As to G.P., however, although the first two prongs of the statutory tests were met, we are not convinced that DYFS established by clear and convincing evidence the third and fourth statutory factors necessary for the termination of parental rights, i.e., that there were no alternatives to termination and that termination will not do more harm than good. The court recognized the inadequacies in DYFS' rule-out letter to M.P.I. and in the agency's analysis of M.P.I. and her husband's "criminal records" in evaluating her as a potential family placement. The court seemed, however, to place the burden on the maternal aunt to come to court "to seek an explanation as to why the children could not be placed with [her]" and inferred from her absence in court a lack of interest or concern for the welfare of the children. The court was also cognizant that as a result of G.P.'s significant behavioral problems and age, and the probability that he would sabotage any placement, that he may never be adopted. The court was satisfied, though, that DYFS' plan for termination of S.C.'s parental rights would not do more harm than good, noting that DYFS was willing to re-evaluate M.P.I. as a possible placement for G.P. post-termination. We are not satisfied that is an appropriate result on this record, and believe the agency entrusted with the welfare of its ward should have been required initially to diligently explore this relative placement as an alternative to the severance of S.C.'s parental rights.
Although G.P. has expressed a desire to be re-united with his mother, custody is not the issue in this case. We are satisfied, however, that the record is replete with opportunities for DYFS to have followed up with M.P.I. as an alternative placement for G.P. rather than terminating S.C.'s parental rights. In that way DYFS could have focused on placing a troubled teenager in a familiar setting, while providing specialized services to address his multitude of needs and allowing him the benefit of a continuing relationship with his mother not predicated upon the goal of placement with her. While no expert has suggested that G.P. should be placed with his mother, even though that may be his express wish, there has been no suggestion that continuing contact with his mother would be harmful to him. The trial court properly recognized the need for stability and permanency for G.P. but failed to address the fact that achieving permanency for him may not necessarily be synonymous with termination of parental rights. Kinship legal guardianship with M.P.I. is also a permanent plan which may be a viable alternative to termination of parental rights that DYFS may wish to explore. N.J.S.A. 3B:12A-1. We are not making any determination on the merits of whether M.P.I. is a viable option for placement but we are satisfied the best interests of G.P. require DYFS to consider this alternative to termination, and if she is ruled out, DYFS should make its best efforts to explore such other alternatives as it deems appropriate under the circumstances in order to avoid having G.P. become a "legal orphan."
The March 9, 2007 order terminating J.C. and S.C.'s parental rights to A.C. is affirmed; the order terminating S.C.'s parental rights to G.P. is reversed and the matter is remanded for the court to enter an appropriate order concerning the child's status consistent with this opinion. DYFS shall explore placement of G.P. with his maternal aunt, M.P.I., with the provision of specialized services to address G.P.'s multitude of needs, and if that placement is not acceptable, such other alternatives to termination as it deems appropriate. DYFS shall also concurrently continue to explore select homes on an adoption-track. The termination complaint shall remain in effect as to G.P. so that if alternative placements to termination are not feasible, DYFS may return to court and present further evidence as to the third and fourth statutory prongs. We do not retain jurisdiction.