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New Jersey Division of Youth and Family Services v. K.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 10, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
K.W. AND M.N.B., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF K.L.B.W. AND M.B.W., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-52-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 26, 2008

Before Judges Winkelstein and Yannotti.

M.N.B. and K.W. appeal from an order entered on June 14, 2007, which terminated their parental rights to M.B.W. and K.L.B.W. For the reasons that follow, we affirm.

I.

M.B.W. is a male who was born on November 16, 1993. K.L.B.W. also is a male. He was born on September 17, 1994. The Division became involved with the family on September 19, 1994. The hospital reported that M.N.B. had not obtained prenatal care and she had been using cocaine two weeks prior to K.L.B.W.'s birth. The hospital also reported that it was concerned because it could not confirm where M.N.B. intended to reside with baby.

The Division investigated the matter and was informed that M.N.B. and the children would be living with her mother. The Division also learned that M.N.B. had recently completed a drug rehabilitation program. The Division received another referral from the hospital on September 23, 1994. The Division was told that K.L.M.B. had tested positive for cocaine; M.N.B. had not made follow-up appointments for the children; and M.N.B. had not signed up for the hospital's drug program.

On October 4, 1994, a Division caseworker met with M.N.B. She admitted that she used cocaine twice since August 1994. M.N.B. denied that she was addicted to drugs and said that she intended to begin a drug treatment program the following day. M.N.B. also reported that K.W. was the father of the boys but he was "not around." Because M.N.B. was going to start the drug treatment program and because M.N.B.'s mother had agreed to assist in caring for the children, the Division closed its file on the matter.

In May 1995, M.N.B. contacted the Division and reported that she and the children were living with her mother. M.N.B. said that she was separated from K.W. and at times, he had been intoxicated when he came to visit the children. M.N.B. also stated that she and K.W. had gotten into a physical altercation in the children's presence. The Division investigated the matter and determined that the incident had occurred as M.N.B. had reported.

M.N.B. and her mother agreed to a care plan for the children. M.N.B., her mother, and K.W. also agreed that M.N.B. would not be present when K.W. visited the children, and M.N.B.'s mother would supervise K.W.'s visits. In addition, M.N.B. informed the Division that she was seeking her own apartment and had applied for Section 8 housing assistance. The Division closed its file on the matter.

The Division had no involvement with the family until May 2004, when it received a referral from K.L.B.W.'s school, the Montgomery Academy School. K.L.B.W. had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and classified as learning disabled. K.L.B.W. had behavioral problems in public school and had been enrolled in Montgomery since September 2003. Montgomery reported to the Division that K.L.B.W. appeared angry and there had been no responses to notes that the school had sent to the home. Moreover, the school was concerned that K.L.B.W. had not been taking his medication and he had not attended therapy.

On May 12, 2004, a Division caseworker met with M.N.B., who reported that she attended a drug treatment program in 1991 because of her addiction to cocaine. M.N.B. told the worker that she was a recovering alcoholic and had maintained sobriety for the previous twelve years. M.N.B. stated that K.W. was supposed to visit the children every two weeks but he did not. She also said that K.W. was behind on his child support payments. M.N.B. signed a care plan, in which she agreed to provide the children with a safe and stable home and ensure that they had appropriate medical care and supervision. The Division closed its file on the case.

About eleven months later, the Division received a report that M.N.B. was homeless and may have substance abuse and mental health problems. One of the Division's caseworkers met with M.N.B. She said that she had been evicted from her apartment for non-payment of rent. She had placed the children with Mr. and Ms. S., and they had agreed to care for the boys temporarily.

On April 21, 2005, one of the Division's workers contacted K.W. to discuss his plans for the children. K.W. stated that the boys were doing well with Mr. and Ms. S. and he thought they should stay with them for the remainder of the school year. K.W. also said that M.N.B. was unstable and that she had problems with cocaine in the past. M.N.B. consented to the children's placement into foster care for fifteen days. M.N.B. was evaluated for substance abuse.

On May 12, 2005, the evaluation was completed. Four additional drug screens were recommended to rule out substance abuse. A psychological evaluation was recommended, as well as attendance at Alcoholic Anonymous meetings three times a week for ninety days. Urine screens were conducted on May 2, 2005; May 23, 2005; June 17, 2005; and the results were negative.

Ms. S. contacted the Division on May 23, 2005, and reported that M.N.B. was "causing complete chaos in her home." Ms. S. asserted that she agreed to care for the children because her son knew one of the boys and she did not want them "to be thrown out on the streets." Ms. S. also asserted that the children had not been much trouble but M.N.B. called ten times a day to speak with them.

Ms. S. said that M.N.B. left her harassing messages and treated her badly. She added that, at times, M.N.B. would arrive at her home unannounced. Ms. S. wanted the Division to pre-arrange and schedule M.N.B.'s visits. She also wanted M.N.B. to stop making harassing phone calls and to make calls to the children once a day at a specified time.

On June 9, 2005, the court entered an order providing that the children would remain in the Division's custody, care and supervision, and they would continue to reside with Mr. and Ms. S. The court ordered M.N.B. and K.W. to attend psychological evaluations; permitted M.N.B. to have supervised visitation; and limited M.N.B.'s phone contact with the children to specified times. on July 1 and 6, 2005, M.N.B. was evaluated by Jennifer Rosencrance, an examiner at the Center for Evaluation and Counseling. In a report concerning that evaluation dated July 20, 2005, that was written under the supervision of Dr. Michael J. Fiore, Rosencrance stated that M.N.B. had denied that she was homeless. M.N.B. asserted that she met K.W. at a party in 1989 and they started dating. According to M.N.B., she and K.W. were together for awhile but K.W. did not want to get married. M.N.B. said that K.W. was "a loner" and he was "better off as a single person."

M.N.B. denied that she had a history of mental health treatment or hospitalizations. She admitted, however, that in the past, she had been treated for substance abuse. M.N.B. asserted that she used cocaine and smoked marijuana as a teenager but she had not done so after her treatment. M.N.B. also said that "the cocaine [had] helped [her] deal with [her] problems and issues." She stated that the Division "has all clean urines."

Rosencrance wrote that M.N.B. appeared "defensive and evasive." According to Rosencrance, M.N.B. had "little to no insight into how her actions affect her children." M.N.B. minimized her past substance abuse history and K.L.B.W.'s problem with ADHD. Rosencrance suggested that M.N.B. may be suffering from a major affective disorder, and the cocaine use could have "masked her symptoms and further destabilized her mood."

Rosencrance concluded that M.N.B. was not capable of caring for the children at that time. According to Rosencrance, M.N.B. did not have appropriate housing and it was questionable whether she could support the children financially. Rosencrance noted her concern with M.N.B.'s "presentation" during the evaluation, as well as the reports of her erratic and "emotionally dyscontrolled behavior."

Rosencrance wrote that M.N.B. was in need of a psychiatric evaluation and follow-up care. She stated that M.N.B. also was in need of substance abuse treatment. She additionally stated that M.N.B. would benefit from anger management and psychotherapy "to address issues of emotional dyscontrol and lifestyle instability."

The court conducted a case management review on August 25, 2005. K.W. had notice of the proceeding but he did not attend. The court continued the children in the Division's custody and ordered that they remain with Mr. and Ms. S. The court also continued M.N.B.'s supervised visitation with the children.

In September 2005, Dr. Christine D. Heffner performed a psychiatric evaluation of M.N.B. Heffner diagnosed cocaine and marijuana abuse, in remission as reported by M.N.B.; rule out mood disorder, not otherwise specified (NOS); adjustment disorder; rule out psychosis, NOS; and personality disorder, NOS, with antisocial, paranoid and schizotypal traits.

In her report, Heffner stated that it was difficult to "fully come to a conclusive diagnosis [because M.N.B.] is a poor historian and seemingly very guarded." M.N.B. was asked to return in a week so that Heffner could collect additional information and re-evaluate her mental status. M.N.B. returned on October 18, 2005; however, Heffner's diagnosis remained substantially the same. Heffner recommended that M.N.B. participate in individual therapy.

The court conducted a fact-finding hearing on October 20, 2005, and entered an order on that date in which it found that M.N.B. had neglected the children through her inability to provide financial support and housing for the children, thereby putting them at risk. The court entered another order on October 20, 2005, which provided that the children would remain in the Division's custody and continue to reside with Mr. and Ms. S.

The court's order additionally required that M.N.B. attend counseling; continued M.N.B.'s supervised visits with the children; allowed K.W. to have "liberal and reasonable unsupervised" visitation; provided that the children could spend every other weekend with their paternal grandmother if she or K.W. were present at all times; precluded M.N.B. from making harassing phone calls to the foster family; limited M.N.B.'s phone calls to the children; and directed M.N.B. to make an effort to maintain full-time employment.

In December 2005, Mr. and Ms. S. informed the Division that, since the October 20, 2005 hearing, K.W. had only visited the children three times. They expressed a willingness to adopt the children if that was possible. On December 14, 2005, K.W. and his mother signed a care plan, which allowed the children to visit them.

The court conducted a compliance review hearing on January 19, 2006. Although K.W. attended that proceeding, M.N.B. did not appear. The court ordered that the children remain in the Division's custody and continue to reside with the foster parents. M.N.B. was ordered to attend neuro-psychological testing; attend counseling; and make an effort to maintain full-time employment. The court also directed K.W. to cooperate with the Division.

On March 24, 2006, the Division sent a letter to M.N.B. in which it noted that the children had been in foster care for eleven months. The Division stated in the letter that it wanted to know about M.N.B.'s permanency plan for the children. The Division noted that M.N.B. had not visited the children since November 16, 2005.

The Division further noted that the court had ordered M.N.B. to undergo a neuro-psychological evaluation. That evaluation had been scheduled for December 19, 2005, but M.N.B. had not attended and did not call to re-schedule an appointment. In addition, the Division stated that the court had ordered M.N.B. to attend anger management classes, individual psychotherapy, and substance abuse treatment but she had not yet attended any of these services. The Division advised M.N.B. that it would be seeking the termination of her parental rights to the children at the next court date.

On March 28, 2006, the Division sent a letter to K.W. and asked to be informed of his permanency plan for the children. In this letter, the Division stated that it had attempted to contact him but had been unable to do so. The Division asserted that K.W. had been attending regular weekly visits at the foster home, but it needed to be informed of his plan for the children. The Division said that unless it heard from K.W., it would move forward with its plan to seek the termination of his parental rights at the next court date.

The court conducted a permanency hearing on April 6, 2006. The court rejected the Division's plan for termination of M.N.B.'s and K.W.'s parental rights. The court directed the Division to submit a new permanency plan within sixty days. The court ordered that the children remain in the Division's custody and continue to reside with Mr. and Ms. S. M.N.B. again was ordered to attend counseling, a neuro-psychological evaluation, and a substance abuse evaluation. M.N.B.'s weekly supervised visitation was continued. K.W. again was ordered to cooperate with the Division, and he was directed to permit the Division's caseworker to visit his home.

Another permanency hearing took place on May 18, 2006. The court accepted the Division's plan for reunification of the children with K.W. and ordered that it take place by July 1, 2006. The judge found that "[t]he Division's [permanency] plan is appropriate because [K.W.] can take care of his children and will become their primary caretaker along with the support of [his] mother."

The court's order provided, among other things, that in the meantime, K.W. would have liberal and unsupervised visitation. The order also required that K.W. make "definitive arrangements" for the boys' schooling in September 2006. The judge ordered M.N.B. to attend counseling, neuro-psychological testing, and substance abuse treatment.

On June 8, 2006, one of the Division's caseworkers contacted K.W. to discuss his arrangements for reunification with the children. K.W. informed the caseworker that he had not yet purchased beds for the children, and he did not have information regarding their schools. K.W. told the worker that he would have all of the arrangements completed by the following week.

A caseworker placed a phone call to K.W. on June 23, 2006 to discuss reunification. There was no answer. The Division followed up with a letter reminding K.W. that he said he would make the necessary arrangements for reunification with the children but he had not contacted the Division to confirm that those arrangements had been made.

At about this time, K.L.B.W. was hospitalized after he told his therapist that he was thinking of hurting himself or another person. At the hospital, K.L.B.W. said that he wanted to kill himself or kill his foster mother. The child was hospitalized from June 27 to 30. He was diagnosed with major depression.

A report of a psychiatric evaluation of K.L.B.W. that was conducted on July 11, 2006, noted that the child had "a long history of depressive symptoms with suicidal ideation and a longstanding history of ADHD symptomology." The evaluation also noted that K.L.B.W. previously had been hospitalized in December 2002 with a diagnosis of major depression and rule out bipolar disorder. The report recommended that K.L.B.W. have individual therapy two times a week, rather than once a week, and that his medication be continued.

A caseworker contacted K.W. on July 3, 2006. K.W. advised that he was going to move to another apartment and he was not ready to take responsibility for the children at the time. According to the case notes, K.W. said that he had "some car trouble" but he "would work on the tasks" in the coming week. K.W. said that he would contact the Division "once he [had] everything ready[.]"

The Division referred M.N.B. for further psychological and psychiatric evaluations at the Family Enrichment Program (FEP) at Morristown Memorial Hospital. She also was referred for another substance abuse evaluation.

The latter evaluation was completed on August 4, 2006. The evaluator noted that on July 31, 2006, M.N.B. had tested positive for cocaine. The evaluator also suggested that M.N.B. participate in an intensive outpatient drug treatment program. At a meeting at the Division's office on August 4, 2006, M.N.B. was informed of the positive drug screen. M.N.B. stated that she had been at a party where people were using cocaine but she insisted that she had not used the drug herself.

A caseworker visited K.W.'s apartment on August 30, 2006. According to the Division's case notes, K.W. had a one-bedroom apartment and it was sparsely furnished. K.W. said that he had moved into the apartment six months earlier. He also said that he could get the furniture required for the boys in one day if the children were placed with him.

K.W. provided the caseworker with the names of a pediatrician, dentist and a school where the children could be enrolled. The caseworker explained the Division's concerns about K.W.'s commitment to the children, and told K.W. that he needed to visit the children on a weekly basis. On September 21, 2006, K.W. was referred for a psychological evaluation and parenting assessment.

On October 10, 2006, K.W. called the Division. The worker asked whether K.W. had scheduled his psychological evaluation. K.W. said that it was scheduled for October 12, 2006. The worker advised K.W. that the Division was concerned about his commitment to the children. He asked K.W. whether he had purchased the furniture for the children. K.W. said that he had not but could do so any time if the children were returned to him. The worker told K.W. to purchase the furniture. The Division's caseworker first observed beds for the boys when the worker inspected K.W.'s apartment in April, 2007.

Dr. Carla Brinker of the FEP performed the psychological evaluation of K.W. In her report concerning that evaluation, Brinker noted that K.W. had graduated from high school but did not attend college. K.W. spent four years in the Navy and, after working and living temporarily in California, he returned to New Jersey and worked twelve years for a pharmaceutical company. K.W. then went to work for the New Jersey Department of Corrections, where he had been employed for the previous three-and-one-half years. K.W. denied any substance abuse or psychiatric history. His medical history was unremarkable.

Brinker noted that in his interview, K.W. had discussed the children and their needs. K.W. said that K.L.B.W. was "a normal kid," although he had been hospitalized because he felt depressed and stated that he wanted to kill himself. K.W. asserted that K.L.B.W. "just needs to be loved, that's all." K.W. commented that the child was "going through a phase and he just wants to be with his mother." K.W. also said that M.B.W. was "like his mother" and wanted to be "the center of attention."

Brinker observed that K.W. presented "as a man who lacks insight into the needs of his children." He remained passive in his relationship with the boys, and only visited them when time permitted, even though there were no restrictions on his visitation. She wrote that K.W. minimized the impact that the removal and separation had on the children, "as evidenced by his belief that all they need is to be loved[.]"

In addition, Brinker stated that she continued to have concerns regarding K.W.'s ability to recognize and meet the needs of the children, specifically K.L.B.W.'s special education needs and M.B.W.'s emotional needs. Brinker also stated that K.W. would benefit from attending individual therapy to further explore the children's issues, as well as to address parenting issues.

In October 2006, Dr. Marielia Gavlick of the FEP provided a report concerning her psychological evaluation of M.N.B. In her report, Gavlick noted that M.N.B. was a high school graduate. M.N.B. had been employed at a hospital for five years, and then worked for a temporary employment agency for ten years doing various jobs. Later, M.N.B. was employed as a receptionist in a doctor's office, and thereafter at a cancer center. M.N.B. told Gavlick that she was going to work part-time in a catering business and she had just obtained a job at a doughnut shop.

Gavlick wrote that M.N.B. presented as a "hypomanic" and "irritable" person, who did not appear to provide a safe and protective home for her children. She said that M.N.B. is "impulsive and defensive." M.N.B. placed blame on others for her failure to engage in therapy and to visit her sons for five months. Gavlick stated that M.N.B. was not a reliable historian, and she had not been forthcoming in discussing her substance abuse history. Gavlick noted that M.N.B. had a positive urine screen for cocaine on July 31, 2006.

Gavlick wrote that there were "significant concerns" about M.N.B.'s ability to provide a safe and stable home environment for the children because of her "longstanding and current substance use involvement, lack of insight, poor parenting, and erratic behavior." Gavlick stated that M.N.B.'s prognosis was poor "due to her long standing mental health issues and lack of consistent involvement in a substance abuse program." She recommended that M.N.B. continue supervised visitation with the children; "remain clean and sober" by attending a substance abuse group; have random urine screens to ensure her sobriety; complete a substance abuse program; address the other issues relating to the removal of the children; and have a psychiatric evaluation.

On October 17, 2006, Erin Brown, a social worker at the FEP's Therapeutic Supervised Visitation Program (TSVP), issued a report in which she noted that M.N.B. had been referred to the FEP for an assessment of her parenting capabilities. Brown stated that M.N.B. began visitation with the children at the TSPV in July 2006 and had attended ten of the eleven scheduled sessions. Brown noted, however, that M.N.B. made little progress with her parenting goals. She stated that M.N.B.'s behavior with the children during the parenting sessions had been "quite erratic."

Brown stated that M.N.B. had denied using cocaine even though she recently had produced a positive drug screen. According to Brown, M.N.B. had attempted to provide a urine sample on October 16, 2006 but "dropped the cup" and refused to stay to provide another sample. M.N.B. also had refused to complete her psychological tests. In addition, on one occasion, M.N.B. became very emotional about the Division. She cried and screamed in the hallway.

Brown noted that M.N.B. had made some improvements in her interactions with K.L.B.W. during visitation. Brown stated that M.N.B. was in the "very early stages" of a substance abuse program and needed to address the expression of her frustrations. Brown recommended that M.N.B.'s supervised visits with the children continue. She also recommended that M.N.B. continue her substance abuse treatment; comply with all court-ordered recommendations; and attend individual therapy to address her erratic behavior.

The court conducted another permanency hearing on October 19, 2006, and entered an order approving the Division's plan for the termination of M.N.B.'s and K.W.'s parental rights. That same day, the judge ordered drug testing for M.N.B. She thereafter refused to be tested. M.N.B. also failed to appear for scheduled intensive drug treatment.

On November 5, 2006, the Division advised K.W. that he was scheduled to begin parenting classes at the FEP. However, he did not begin the program. Later, when asked by a caseworker why he did not attend, K.W. said that he did not see the need for the classes. On November 8, 2006, M.N.B. again refused a drug screen.

On December 18, 2006, Brown issued another report concerning M.N.B. Brown noted that M.N.B. had attended sixteen of nineteen scheduled visits at the TSVP with the children. Brown wrote that M.N.B.'s prognosis was poor. M.N.B. had refused five drug screens and, according to Brown, she has difficulty controlling her frustration when suggestions were offered. Brown recommended that M.N.B. continue weekly visits; and attend individual therapy and a psychiatric evaluation to address her erratic behavior and anger. She also recommended that M.N.B. follow the recommendations of a substance abuse evaluation and comply with all other court-ordered recommendations.

On December 20, 2006, the Division filed a complaint for guardianship of the children. The judge conducted the trial in the matter on June 11, 12, and 13, 2007. He placed his decision on the record on June 14, 2007, finding that the Division had proven by clear and convincing evidence all of the criteria required by N.J.S.A. 30:4C-15.1a for the termination of the parental rights of M.N.B. and K.W. The judge entered an order dated June 14, 2007, memorializing his decision. M.N.B. and K.W. filed notices of appeal on July 25, 2007. On August 8, 2007, we entered an order consolidating the appeals.

II.

We begin our consideration of the appeals with a review of the principles that govern the termination of an individual's parental rights. It is well-established that a parent has a fundamental right to enjoy a relationship with his or her child. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, "[p]arental rights, though fundamentally important, are not absolute." Id. at 347. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid.

That standard requires that an individual's parental rights not be terminated unless the Division establishes by clear and convincing evidence each of the following criteria:

(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 [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1a.]

These criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

To satisfy the first prong of the standard, the Division must establish that the child's safety, health and development have been or will continue to be endangered by the parental relationship. N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J. Super. 76, 113 (App. Div.), certif. denied, 180 N.J. 456 (2004). The Division must demonstrate "harm to the child by the parent." K.H.O., supra, 161 N.J. at 348. "Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship." Ibid. Moreover, "[a]lthough a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid. A parent's failure to provide nurturing or care to a child for a prolonged period of time "is a harm . . . that is cognizable under the best interests standard." Id. at 356.

"The second prong of the statutory standard relates to parental unfitness." Id. at 352. "That may be established in several ways. It may be demonstrated that the parent is 'unwilling or unable to eliminate the harm' that has endangered the child's health and development." Ibid. (quoting N.J.S.A. 30:4C-15.1a(2)). "Parental unfitness may also be demonstrated if the parent has failed to provide a 'safe and stable home for the child' and a 'delay in permanent placement' will further harm the child." Ibid. Moreover, the second prong of the best interests standard may be met by indications of parental dereliction and irresponsibility, such as the parent's continued or recurring drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child. [Id. at 353.]

To meet the third prong of the best interests standard, the Division must establish that it undertook "diligent efforts to reunite the family." Id. at 354. This prong "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." Ibid. In addition, the court must consider whether there are alternatives to the termination of parental rights. Ibid.

The fourth prong of the best interests standard requires that the Division prove that termination of an individual's parental rights will not do more harm than good to the child. Id. at 354-55. The Division is not required to show that "no harm will befall the child as a result of severing of biological ties." Id. at 355. "The question to be addressed under [the fourth] prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the child's] relationship with [his or her] foster parents." Ibid.

In their appeals, both M.N.B. and K.W. argue that the judge erred by finding that the Division met its evidentiary burden for the termination of their parental rights. In considering these contentions, we note that the scope of our review of a trial court's factual findings is limited. Such findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

The trial court's findings of fact "'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Furthermore, because judges in the Family Part have special "expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

III.

We turn first to M.N.B.'s appeal. M.N.B. argues that the judge erred by finding that the Division had proven by clear and convincing evidence all of the criteria for termination of her parental rights. We disagree.

A. Harm to the children.

M.N.B. argues that the judge erred by finding that the children's "safety, health or development" have been harmed by their relationship with her. N.J.S.A. 30:40C-15.1a(1). M.N.B. asserts that she provided a safe and stable home for the children for more than ten years before she became homeless in 2005. She contends that there was never a single, substantiated allegation of abuse against her. She notes that when she lost her apartment in 2005, she sent the children to live with "a friend."

We reject these contentions. Here, there is sufficient credible evidence to support the judge's finding that the Division clearly and convincingly established that the children have been harmed by their relationships with M.N.B. As we have pointed out, in 2005, M.N.B. failed to provide the children with a safe and stable home when she became homeless. She brought the children to live with Mr. and Ms. S. We note that following the fact-finding hearing, the judge entered an order in which he found that M.N.B. had neglected the children and placed them at risk.

Moreover, the children remained in foster care for several years because of, among other things, M.N.B.'s erratic behavior, her substance abuse, her refusal to participate in drug treatment programs, her psychological problems, and her refusal to obtain needed psychological evaluations and treatment. As a consequence, the children have been subjected to instability and disruption.

We are satisfied that the evidence fully supports the judge's finding that the children have been harmed by their relationship with M.N.B.

B. Elimination of Harm/Delay in Permanent Placement

M.N.B. next argues that there was insufficient evidence to support the judge's finding that she is unable and unwilling to eliminate the harm to the children, and a delay in a permanent placement will further harm the children. N.J.S.A. 30:4C-15.1a(2). M.N.B. asserts that when she was evicted from her apartment in 2005, she took steps to ensure that the children were placed with Mr. and Ms. S. She claims that she put the children's interests above her own and made sure that they had adequate housing before the Division became involved. M.N.B. maintains that she obtained housing thereafter and lost it only because the Division failed to provide her with financial assistance.

We are convinced, however, that the record clerly and convincingly supports the judge's finding that the Division established the second prong of the standard. Here, the Division presented testimony from Dr. Frank J. Dyer, who rendered a report dated May 17, 2007, which detailed the result of his psychological evaluation of M.N.B. Dyer made the following diagnosis of M.N.B.: cannabis abuse, by history; cocaine abuse; rule out bipolar disorder; and personality disorder NOS, with prominent histrionic, narcissistic and borderline features.

In his report, Dyer stated that M.N.B. had not acknowledged any inappropriate behavior that contributed to the removal of the children from her care. He stated that M.N.B. projects blame onto others, specifically Ms. S. and the Division. He asserted that M.N.B. had even threatened to kidnap the children, which indicated "a good deal of instability[.]"

Dyer concluded that M.N.B. "lacks the capacity to provide consistent nurturance, structure, guidance, positive role modeling, and physical protection for the children." M.N.B. told Dyer that she had a plan to move into a three-bedroom home but Dyer stated that this was "largely based on fantasy, as [M.N.B.] has not demonstrated stable employment."

Dyer further noted that M.N.B.'s "drug status" was "quite uncertain" and she continued to refuse to submit to drug testing after the July 2006 positive test for cocaine. Dyer stated that M.N.B.'s excuse for the positive result of that test was "rather flimsy" and she had not provided "any evidence whatsoever that she has made progress in eliminating, or even acknowledging, any of the problems that resulted in the children's removal."

In addition, the Law Guardian presented testimony from Dr. Rachel Jewelewicz-Nelson who prepared a report dated March 20, 2007 concerning her psychological evaluation of M.N.B. Jewelewicz-Nelson found that M.N.B. exhibited behaviors consistent with pervasive personality disorder, "characterized by schizoid, histrionic, and narcissistic traits that make it impossible for [M.N.B.] to place the needs and feelings of her children above her own."

Jewelewicz-Nelson concluded that M.N.B. has "serious emotional and psychological deficits that interfere with her capacity to provide her children with a stable, consistent and secure home." She opined that M.N.B. is "histrionic, narcissistic, and suspicious." According to Jewelewicz-Nelson, M.N.B. is not able to place the needs of her children ahead of her own. The doctor stated that M.N.B. has significant emotional and psychological problems that render her incapable of safely and properly caring for the children.

The trial judge found that Dyer's testimony was "extremely credible and insightful." He noted that Dyer had testified that M.N.B. was vulnerable to regression and this could compound the risk to the children from crisis. The judge also found that Jewelewicz-Nelson's testimony was credible. The judge determined that M.N.B.'s "dereliction and irresponsibility" had delayed permanency for the children and "[s]uch delay and lack of permanency is harmful . . . [and] extremely detrimental to the children." In our view, the evidence presented by the Division provides clear and convincing support for the judge's findings.

C. Reasonable Efforts/Alternatives to Termination

M.N.B. next argues that the Division failed to make reasonable efforts to help her correct the circumstances that led to the placement of the children outside of the home. N.J.S.A. 30:4C-15.1a(3). Again, we disagree.

The record establishes that the Division provided M.N.B. with an array of services, including psychological evaluations, drug testing, treatment for drug abuse, visitation, and transportation. We note that, although M.N.B. was evicted from her apartment in April 2006 for non-payment of rent, there is no evidence that the eviction was due to any failure on the part of the Division to provide needed services to assist her in obtaining housing assistance.

Moreover, in April 2007, M.N.B. reported to Dyer that she did not have an apartment and was living with her godmother in Newark. M.N.B. apparently wanted to move into a three-bedroom home but there is no evidence that she had sufficient resources to do so. We are satisfied that the Division clearly and convincingly established that it made reasonable efforts to address the circumstances that led to the removal of the children.

We note that the judge also found that the Division had considered alternatives to termination of M.N.B.'s parental rights and the Division had properly determined that the alternatives were not appropriate for the children. M.N.B. does not challenge the judge's finding on that issue.

D. More Good than Harm

M.N.B. further contends that the trial judge erred by finding that termination of her parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1a(4). M.N.B. maintains that the children will be harmed if her parental rights are terminated.

The record shows, however, that Dyer performed evaluations of the bonds between the children and M.N.B., as well as the bonds between the children and the foster parents. In his report, Dyer noted that K.L.B.W. had presented with a history of special educational needs, making suicidal statements, and psychiatric treatment in connection with a suicide threat. However, Dyer stated that K.L.B.W. was adjusting well to his foster parents. Dyer wrote:

[K.L.B.W.] expresses [an] unambivalent preference to return to the home of his birthmother, [M.N.B.]. He also indicates that he would like to live with his father, [K.W.]. Although he does not indicate having any dislikes about his current foster placement, he desires to return to either of his biological parents. It is clear that, in spite of their somewhat troubled relationship, [K.L.B.W.] continues to have an attachment to [M.N.B.], and that he would suffer a disorganizing loss if further contact with [M.N.B.] were prevented. I note that [K.L.B.W.] has not actually resided with his birth father, and that [K.W.] has been quite sporadic in his visitation with the boys. If further contact with [K.W.] were prevented because of adoption, [K.L.B.W.] would suffer something of a loss, although this would very likely be less disorganizing than the loss of contact with his mother.

If the attachment factor alone determined the optimal case plan for [K.L.B.W.], then clearly the solution would be to return him to either [M.N.B. or K.W.]. Given the lack of parental fitness of both parties, however, it appears inevitable that [K.L.B.W.] will suffer some type of loss as a consequence of the parents' inability to provide for him. Considering all of the factors in this case, including [K.L.B.W.]'s severe emotional problems, the difficulties that [M.N.B.] presents [in] terms of her manipulativeness and resistance to services, and [K.W.'s] lack of initiative in taking the appropriate steps to furnish an adequate home for the children, it is my recommendation that [the Division] pursue a case goal of adoption of [K.B.L.W] by his foster parents. . . .

In his report, Dyer offered the following observations concerning M.B.W.:

[M.B.W.] seems confused in regard to his preferences for a permanent placement. While he does have a continuing attachment to both of his birthparents, in interviews, he relates that it is a matter of indifference to him as to whether he goes to his birth father. He does express a preference for returning to his birthmother. [M.B.W.] does not appear to have the same intense desire to return to his birthmother that [K.L.B.W.] has. This may be due to [M.B.W.]'s greater maturity and better psychological adjustment, enabling him to have a realistic view of the relative capacities of the foster parents and the birthparents to meet his needs. It is my opinion, however, that [M.B.W.] does continue to have an attachment to both of his birthparents, and that a loss of contact with them in the event of adoption by the foster parents would have a significant negative impact on him.

If attachment were the sole determinant of the case goal here, then I would recommend a return to one or the other birthparent. Given the birthparents' limitations and their lack of response to services, however, this is not a viable case goal in my opinion. [M.B.W.] is with foster parents who are sensitive to his tie to his birthparents, and reassure him that they would not try to replace his parents. He addresses the foster parents as [Mr. and Ms. S.], and acknowledges them as substitute caretakers and not as parent figures as that term is generally understood. The foster parents are committed to this child's welfare, and have demonstrated their capacity to provide him with love, support, structure, guidance, and nurturance. Taking all the factors in this case into account, it is my recommendation that [the Division] pursue a case goal of foster home adoption for [M.B.W.] by [Mr. and Ms. S.].

At the trial, Dyer testified that K.L.B.W. has "significant emotional problems[.]" He stated that a permanent cessation of contact with M.N.B. "would inflict a loss on this child that could precipitate some [kind] of regression in [the child's] psychological functioning." The doctor stated that the loss could be mitigated "to some extent through psychological and psychiatric therapy[,]" but the loss could not "be entirely eradicated or negated."

Dyer noted that K.L.B.W. had a secure attachment to his foster parents, and felt secure that they love him and "can be trusted to provide him with a stable, safe and secure environment[.]" The doctor stated that if K.L.B.W. were reunited with M.N.B., he "would be exposed to the risk of further unstable behavior on his mother's part."

Dyer also testified that M.B.W. has a "continuing attachment" to M.N.B. However, the attachment is "tempered by a dose of reality." The doctor stated that M.B.W. is more aware than K.L.B.W. of the "obstacles to his reunification with his birth mother." Dyer stated that if M.N.B.'s parental rights were terminated, M.B.W. would suffer a "significant loss[.]" The impact could be mitigated through therapeutic means and continuing residence in a safe and stable home environment, but the doctor said that the impact would not be "totally eradicated or negated."

Dyer added that if M.B.W. was reunited with M.N.B., he also would be exposed "to a risk of disruption in living accommodations and also to further erratic and potentially traumatizing behavior on the part of [M.N.B.]." The doctor stated that this would have a negative effect upon M.B.W.'s emotional adjustment and his "continuing personality development."

Jewelewicz-Nelson also addressed the question of whether the termination of parental rights would do more harm than good. In her report, Jewelewicz-Nelson wrote that both M.N.B. and K.W. "have significant emotional and psychological deficits that preclude their ability to safely and properly parent their children." She added that M.N.B. and K.W. have left their children in foster care for two years, and have not met the minimal requirements necessary for reunification. She stated:

[M.B.W. and K.L.B.W.] do not seem to have strong emotional attachments to their birth parents. While they are pleased to visit with them, they express [a] lack of trust in their parents. They evidence [a] lack of emotional engagement with their parents. They do not indicate sadness or dismay at leaving their parents at the end of visits. There is no question that a bond exists between the boys and their birth parents, but it is not a strong and enduring bond. Severing that bond is not likely to cause undue emotional or psychological trauma that will have permanent and irreparable harm. The foster parents appear to be better equipped emotionally and psychologically to address issues of bereavement and grief than are the biological parents.

At the trial, Jewelewicz-Nelson testified that the children would be placed at risk if reunited with their birth parents. In her view, reunification was not a viable option. She asserted that if M.N.B. and K.W.'s parental rights were terminated, the children would suffer a loss. However, the loss could be mitigated by "nurturing, supportive, responsive foster parents or adoptive parents who would help them through the grief and bereavement processes." The doctor stated that Mr. and Ms. S. would be able to provide the children with such help. She noted that they had already been doing that.

In his decision, the judge noted that Dyer had testified that both boys were "very attached" to M.N.B. and would suffer a significant loss if her parental rights were terminated. The judge also took note of Dyer's conclusion that the loss would not be totally mitigated through therapy and a secure environment. However, the judge added that the foster parents had provided the children with a commitment lacking in both of their birth parents. The foster parents understood K.B.L.W.'s special needs and accepted the responsibility to parent M.B.W. The judge concluded that reunification with M.N.B. would place the children at risk, and that the children would be harmed by a delay in achieving permanency and stability.

We are convinced that the record fully supports the judge's findings on the fourth prong of the best interests standard. As we stated previously, that standard does not "require a showing that no harm will befall the child as a result of the severing of biological ties." K.H.O., supra, 161 N.J. at 355. Here, the judge recognized that the children will suffer some irreparable loss if their ties to M.N.B. are severed. However, the judge properly found that the children would be at greater risk if their relationship with M.N.B. were to continue. In our view, the expert testimony in this case provides clear and convincing support for the judge's finding.

Therefore, we conclude that the judge correctly found that the Division had presented clear and convincing evidence on all four of the prongs required by N.J.S.A. 30:4C-15.1a for the termination of M.N.B.'s parental rights.

IV.

We next consider K.W.'s appeal. Like M.N.B., K.W. argues that the Division failed to establish by clear and convincing evidence all of the criteria for termination of his parental rights.

A. Harm to the Children

K.W. argues that there is no proof that the children's safety, health or development has been endangered by their relationship with him. N.J.S.A. 30:4C-15.1a(1). K.W. contends that he is a financially-independent person, with a stable and impressive employment history. He asserts that there has never been a finding by the court that he abused or neglected the children, or endangered them in any way. K.W. argues that he should not be "held responsible" for M.N.B.'s erratic behavior, her failure to address substance abuse issues, and her failure to maintain stable housing and employment. We are not persuaded by these contentions.

As we stated previously, the record clearly and convincingly establishes that K.L.B.W. and M.B.W. have been harmed by their relationship with M.N.B. The record supports a similar finding regarding K.W. As the evidence shows, K.W. has never been fully responsible for the care of these children. From their births in 1993 and 1994, through 2005, the children resided with M.N.B. Although there is some evidence that K.W. visited the children at times, and provided some financial support for them, K.W.'s involvement in the family was sporadic at best.

We reject K.W.'s assertion that M.N.B. is the party responsible for any harm to the children that resulted when they became homeless in 2005. Surely, K.W. must share some responsibility for the failure to provide the children with a safe and stable home environment. In these circumstances, the conclusion is inescapable that the children have not only been harmed by their relationship with M.N.B., they also have been harmed by their relationship with K.W.

B. Elimination of Harm/Delay in Permanent Placement

K.W. next argues that the judge erred by finding that he is unable or unwilling to eliminate the harm to the children and that a delay in their permanent placement would add to the harm that the children have already sustained. N.J.S.A. 30:4C-15.1a(2).

K.W. argues that he is presently able to provide the children with a safe and stable home. He asserts that he complied with all of the Division's requirements for reunification with the children and the judge erred by concluding otherwise. K.W. further argues that although he may have been somewhat dilatory in finding a new apartment and purchasing additional furniture for the children, those factors do not "remotely" approach the level of clear and convincing evidence that he is unable or unwilling to eliminate the harm to the children.

We are persuaded, however, that the evidence presented at trial clearly and convincingly supports the judge's finding on the second prong of the best interests standard. We initially note that in his report, Dr. Dyer recommended against reunification of the children with K.W. He stated:

K.W. impresses as having a schizoid personality orientation characterized by detachment, social isolation, and somewhat unrealistic thinking patterns. His emotional presentation during the interview was also somewhat dysphoric. This is consistent with [K.W.]'s perpetual delays in preparing his apartment with furniture and other items that are necessary for assuming custody of [K.L.B.W. and M.B.W.]. It is also consistent with his offering excuses for not having done so, including the claim that no one ever gave him any sort of firm deadline for completing these preparations, in spite of the fact that he was sent registered letters that did name a specific deadline for this, as well as having deadline[s] imposed upon him during court appearances. [K.W.] was appropriate and nurturing toward the children in his bonding assessment with them. Of concern, however, is [K.W.]'s practice of taking the children to a pistol range to shoot guns, and his joking with [K.L.B.W.] that he would 'shoot him in the butt.' In light of the fact that [K.L.B.W.] has a history of psychiatric hospitalization for making suicidal statements, and in light of the fact that [K.L.B.W.] indeed did tell the present examiner that he would have cut himself on the wrist with a knife if no one had intervened to stop him, [K.W.]'s causal attitude toward exposing the children to guns is very unsettling. [K.W.] projects an attitude of crude denial in regard to [K.L.B.W.]'s psychiatric problems. He attributes [the child's] past behavior, which was so alarming to the adults in his environment, as being due to his "being goofy." [K.W.] also feels that [K.L.B.W.] is not as impaired in terms of educational achievement as the child study team feels that he is, and appears to attribute [K.L.B.W.]'s academic problems to

[a] lack of initiative. In practical terms, this means that [K.W.] could not be counted upon to respond appropriately to any psychiatric decompensation that [K.L.B.W.] might be displaying. He could also not be counted on to cooperate with special educational services and to reinforce at home whatever additional educational or behavioral interventions might be recommended for [K.L.B.W.]. Further, [K.W.]'s sporadic visitation with the children and his failure to visit [K.L.B.W.] at all while [the child] was hospitalized in Hoboken, according to the foster mother, reflect something of an indifference to the children. This is also consistent with the schizoid detachment noted in [K.W.]'s psychological profile.

At the trial, Dyer testified that reunification of the children with K.W. was not viable because of K.W.'s repeated failures to take the steps necessary to provide a secure and stable residence for the children. The doctor noted that raising a pair of teenagers as the sole or primary caretaker "requires a great degree of vigilance and emotional investment[.]" He said that K.W. was "not capable of that degree of commitment and responsibility and responsiveness."

Dyer added that K.W. did not understand K.L.B.W.'s special needs. He did not accept the legitimacy of K.L.B.W.'s suicidal behavior which resulted in the child's placement in a psychiatric hospital. The doctor also stated that M.B.W. would be at risk of neglect if returned to his father's care because K.W. "is not really capable of making [the] requisite investment of time, effort and energy in caring for an adolescent . . . [and] ultimately the care of [M.B.W.] would evolve on to some other figure." Dyer stated that the child would experience "a lack of adequate caretaking, lack of adequate boundaries, structure and parental investment in him."

Dr. Jewelewicz-Nelson offered a similarly negative view of K.W.'s fitness to parent the children. She stated that K.W. had a "schizoid personality structure," meaning that he was asocial. Jewelewicz-Nelson stated that K.W. does not "experience very deep and intense feelings, nor does he convey them." The doctor opined that K.W. has the intellectual capacity to care for the children, but she did not believe he was fit to parent them because he fails to "act on [his] intellectual fund of information."

Jewelewicz-Nelson added that K.W. did not properly appreciate K.L.B.W.'s special needs. Indeed, the doctor stated that K.W. "was dismissive of" and "minimized" those concerns. She noted that K.W. believed that K.L.B.W. was "faking" to get attention, and he did not believe that K.L.B.W. belonged in a special school. The doctor stated that she did not believe K.W. recognized K.L.B.W.'s psychiatric needs. She also did not believe that he would recognize signs that K.L.B.W. may be deteriorating and would need additional services and supports. The doctor added that she did not "believe that [K.W.] would be capable of providing those services and supports."

Jewelewicz-Nelson also expressed concerns regarding K.W.'s plan to care for the children. She said that K.W. would need M.N.B. or his mother to assist in caring for the children because he works primarily in the afternoons or evenings when the children would be home from school. Jewelewicz-Nelson said that she was concerned because K.W. would not "really be parenting [the children]."

Therefore, the record clearly and convincingly establishes that K.W.'s actions reflected an unwillingness to provide a safe and stable home for the children, despite his claims to the contrary. In our view, Dr. Dyer's testimony and the testimony of Dr. Jewelewicz-Nelson amply support the judge's finding that K.W. is unable or unwilling to eliminate the harm to the children, and they continue to be harmed by the delay in a permanent placement.

C. Reasonable Efforts/Alternatives to Termination

K.W. contends that the Division failed to make reasonable efforts to assist him in addressing the causes that led to placement of the children outside of the home. N.J.S.A. 30:4C-15.1a(3). K.W. argues that the Division failed to work with him towards reunification. He asserts that the Division created unreasonable barriers to reunification and continuously thwarted his plans to parent the children.

K.W. also argues that the trial judge failed to consider alternatives to the termination of his parental rights. He asserts that the judge erred by failing to preserve his parental rights and the court should have granted joint custody to K.W. and the foster family, with the foster parents maintaining physical custody of the children.

K.W. additionally argues that the judge erred by failing to explore placement of the children with their paternal grandmother. According to K.W., the Division wrongly ruled out the paternal grandmother as a placement option based on various technicalities that could have been addressed or waived.

We are convinced, however, that the record clearly and convincingly shows that the Division's efforts in this matter were reasonable. We reject K.W.'s contention that the Division acted to thwart reunification rather than advance that goal. Indeed, the record fully supports a contrary finding. Furthermore, the record clearly and convincingly establishes that the Division considered alternatives to termination of K.W.'s parental rights and properly rejected them.

D. More Good than Harm

K.W. additionally argues that termination of his parental rights will do more harm than good. N.J.S.A. 30:4C-15.1a(4). He asserts that the record establishes that the children love their father and share a bond with him. K.W. maintains that the children will suffer a significant loss if their tie to either parent is severed.

We reject these contentions substantially for the reasons stated previously concerning the termination of M.N.B.'s parental rights. The record makes clear that the children's bonds with M.N.B. are stronger than their bonds with K.W. M.N.B. was their primary caretaker from the time that the children were born until she placed them in foster care. As we have pointed out, K.W.'s involvement with the children has been sporadic.

The evidence shows that the children will suffer some harm if K.W.'s parental rights are terminated. However, Dyer and Jewelewicz-Nelson made clear in their reports and testimony that the harm can be mitigated by the foster parents, and on balance, more good than harm will result from the termination of M.N.B.'s and K.W.'s parental rights.

As we stated previously, in order to meet its evidentiary burden on the fourth prong of the best interests standard, the Division is not required to establish that no harm will befall the children if parental rights are terminated. K.H.O., supra, 161 N.J. at 355. Here, the record clearly and convincingly establishes that the risk of harm to the children from reunification outweighs any harm that may result from the termination of K.W.'s parental rights.

Therefore, we conclude that the judge correctly found that the Division had met its evidentiary burden and established all of the criteria under N.J.S.A. 30:4C-15.1a for the termination of K.W.'s parental rights.

Affirmed.

20080410

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