April 11, 2008
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF K.M.H., A MINOR.
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF K.H.M., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-68-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2008
Before Judges Sapp-Peterson and Messano.
In these consolidated actions, defendants K.H. and V.C. appeal the April 20, 2007 judgment of guardianship that terminated their parental rights to K.M.H., their son, and awarded the New Jersey Division of Youth and Family Services (D.Y.F.S. or the Division) guardianship of the child in anticipation of his legal adoption. K.H., the father of K.M.H., raises the following issues for our consideration:
THE ORDER TERMINATING THE [FATHER'S] PARENTAL RIGHTS MUST BE REVERSED BECAUSE [D.Y.F.S.] DID NOT MAKE REASONABLE EFFORTS TO REUNITE THE CHILD WITH HIS FATHER; INSTEAD, [D.Y.F.S.] PROVIDED EXTENSIVE THERAPEUTIC HELP AND OTHER SERVICES ONLY TO THE FOSTER FAMILY.
THE ORDER TERMINATING THE FATHER'S PARENTAL RIGHTS MUST BE REVERSED BECAUSE [D.Y.F.S.] FAILED TO PROVE THAT THE CHILD'S HEALTH AND DEVELOPMENT WERE ENDANGERED BY HIS RELATIONSHIP WITH HIS FATHER.
THE ORDER TERMINATING THE FATHER'S PARENTAL RIGHTS MUST BE REVERSED BECAUSE [D.Y.F.S.] FAILED TO PROVE THE FATHER IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING THE CHILD.
THE ORDER TERMINATING THE FATHER'S PARENTAL RIGHTS MUST BE REVERSED BECAUSE [D.Y.F.S.] FAILED TO PROVE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
V.C., the mother of K.M.H., raises the following points for our consideration:
THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED AND THE MATTER REMANDED FOR A SUPPLEMENTAL HEARING BECAUSE THE TRIAL [JUDGE] ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR AN ADJOURNMENT IN ORDER TO OBTAIN A PSYCHOLOGICAL AND BONDING EVALUATION.
THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE [D.Y.F.S.] FAILED TO PROVE THE SECOND, THIRD, AND FOURTH PRONGS OF THE "BEST INTERESTS" TEST BY CLEAR AND CONVINCING EVIDENCE.
(A)  DEFENDANT WAS ABLE TO BECOME PARENTALLY FIT IN TIME TO MEET THE NEEDS OF K.M.H.
(B) [D.Y.F.S.] FAILED TO MAKE REASONABLE EFFORTS TO OFFER SERVICES TO THE DEFENDANT.
(C) THE TRIAL COURT'S FINDINGS THAT TERMINATION OF DEFENDANT'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE IN THE TRIAL RECORD.
The law guardian representing K.M.H.'s interest has opposed the relief requested by defendants. We have considered the arguments raised by both defendants in light of the record and applicable legal standards. We affirm.
K.M.H. was born to K.H. and V.C. on August 27, 2001.*fn1 The testimony at trial revealed that on September 12, 2001, defendants executed a fifteen-day informed consent that resulted from a referral made to D.Y.F.S. by a paternal cousin who reported that K.M.H. had been left in her custody by defendants. At the time, defendants were homeless and living in a van. After investigation, D.Y.F.S. returned K.M.H. to the custody of his parents and maintained an open file on the family for the provision of services.
On April 2, 2002, D.Y.F.S. received another referral alleging that both parents were drinking and frequently fighting causing K.M.H. to be upset and cry. Investigation revealed that the South Brunswick police department had indeed responded to a report of domestic violence on March 29, 2002.
In June 2002, K.H. reported that V.C. had jumped out of his moving vehicle and that she was hospitalized for injuries, multiple bruises and a broken ankle, resulting from the incident. K.H. stated that similar incidents had occurred in the past and that V.C. drank excessively and was unable to control herself. K.H. told D.Y.F.S. that he was concerned that
V.C. would take K.M.H. and leave. On June 20, 2002, K.H. was awarded sole custody of K.M.H. by court order; however, by October 2002, both defendants were again living together despite V.C.'s previous assertions that she planned to reside in a domestic violence shelter.
Also in October, V.C. contacted D.Y.F.S. and claimed that K.H. was smoking marijuana daily and, after dropping her off at work that day, told her not to return home. V.C. claimed that K.H. was upset at her because K.M.H. had fallen down in his crib. V.C. subsequently called D.Y.F.S. back and claimed she had lied and did not want the Division to commence an investigation. When D.Y.F.S. tried to conduct a home visit to investigate the allegations, the family refused to answer the door or speak with the caseworker. D.Y.F.S. requested that defendants continue to attend a parenting skills program they were previously referred to, as well as a substance abuse treatment program, and closed its file on the family in March of 2003.
Defendants subsequently separated following an incident at a Virginia rest stop in September of 2003. The parties offered differing accounts of this incident during the trial. V.C., who resides in Florida and participated in the trial by phone, claimed that K.H. left with K.M.H., essentially abandoning her at the rest stop, and that she did not know where defendant and the child went. Although K.H. did not appear at trial, his version of the events as described to D.Y.F.S. was that V.C. simply left him and the child at the rest stop; he believed she made her way back to Florida where the couple had been living.
The trial judge found that while the family was returning to New Jersey from Florida, defendants had a fight and V.C. exited the vehicle with no intention of returning to K.H. and their son. He concluded that V.C. knew that K.H. was likely to return to the general area of New Jersey that they had lived in before, that her intention in leaving the vehicle at the Virginia rest stop was to return to Florida, and finally that V.C. had intended to separate completely from K.H.
In October 2003, K.H. attempted to secure welfare assistance, and, during a visit to the local office, the staff observed him to be under the influence of alcohol or drugs and saw him shake K.M.H. D.Y.F.S. again initiated an investigation, during which K.H. admitted using drugs; a medical examination of K.M.H. resulted in findings that the child was suffering from dehydration, and had bruises on his arms, legs, and head, all of which resulted in his hospitalization. K.H. executed a full six-month consent to placement and K.M.H. was placed with M.W. and F.W. (the W. family), a foster family, for a year.
Following K.M.H.'s removal, K.H. worked with D.Y.F.S. toward reunification and was generally compliant with the services provided. Eventually, in November 2004, K.M.H. was reunited with K.H., however, problems continued. The child had been diagnosed with hypotonia and developmental language disorder in April 2004. Although D.Y.F.S. recommended ongoing speech therapy for the child, K.H. failed to follow through on the provision of these services to his son.
D.Y.F.S. continued to receive referrals regarding K.H. during this period of reunification. In May and June of 2005, D.Y.F.S. was informed that K.H. was smoking marijuana and undergoing methadone treatment, and that while K.H. had a restraining order against his current paramour, M.G., she continued to reside with K.H. and K.M.H. D.Y.F.S. was able to substantiate the abuse and neglect referral.
On July 21, 2005, D.Y.F.S. again received a referral in which the caller stated that K.M.H. had been seen playing alone outside for ninety minutes and that there continued to be daily incidents of domestic violence between K.M.H. and M.G. D.Y.F.S. was unable to substantiate any abuse or neglect on this occasion.
In December 2005, K.M.H.'s maternal grandmother contacted D.Y.F.S., indicated that she had not seen K.M.H. in a month, that the family was residing in K.H.'s car, and that K.M.H. was unkempt the last time she saw him. The grandmother subsequently told D.Y.F.S. that although she had agreed to care for K.M.H. for three or four days, K.H. had disappeared for a week before returning for the child. D.Y.F.S.'s efforts to locate K.H. and K.M.H. were unsuccessful until March 2006.
At that time, K.H. called his D.Y.F.S. caseworker complaining about his son's behavior and asking the Division to come and take K.M.H. and place him with the W. family. D.Y.F.S. found K.M.H. to be dirty and his clothes ragged. Although he was not yet five-years old, K.M.H. told the D.Y.F.S. investigator about incidents of drug abuse and domestic violence that he had witnessed. The child claimed to have been working in the "scrap metal" business with his father.
K.M.H. was placed with the W. family who reported to D.Y.F.S. that the boy's anger and aggression had increased, that he was wetting his bed, had tried to choke the family dog, and was verbally inappropriate with his foster sister. K.M.H. reported that K.H. and his paramour had been physically violent toward him, that he had witnessed K.H. and the woman having sexual relations, and that he had seen both of them naked.
Meanwhile, from the time she left the family in 2003, until the initiation of the termination proceedings in October 2006, V.C., who was residing in Florida, did not see K.H. or her son. Although she provided D.Y.F.S. with an address in 2004, the Division's efforts to contact V.C. were limited to notifications of impending court dates or attempts to schedule evaluations.
V.C. never sought to make contact with K.M.H. through D.Y.F.S., and even after the litigation was initiated, she did not send him any cards or letters, or make inquiry as to the child's health and development. At trial, however, V.C. claimed that she had unsuccessfully tried to locate K.H. and K.M.H. through the services of her current fiancé who was a private investigator.
From March 2006 until the October 13, 2006 filing of the guardianship complaint, D.Y.F.S. continued to attempt reunification efforts between K.H. and K.M.H. However, at times the Division could not locate K.H., at other times he was incarcerated, and on other occasions he failed to keep scheduled appointments for evaluations and supervised visitation with his son.
Ultimately, efforts to conduct supervised visits failed miserably as K.M.H. became agitated and violent during the initial preparatory session with K.H. present. The child's therapist recommended against any further sessions and a bonding evaluation could not be completed because of K.M.H.'s reaction to being with his father. K.H. did attend a psychological evaluation conducted in January 2007.
Status conferences were held on December 11, 2006, and on February 22, 2007. During the December hearing, V.C. appeared in court, requested an attorney, and was advised to complete the application for the services of the public defender. K.H. did not appear, though the judge was unable to determine that he had received actual notice of the date. During the December hearing, the judge concluded that the case should proceed on parallel tracks, reunification and termination of parental rights, and that visitation was suspended until further order of the court. During the February 22, 2007 hearing, K.H. was present and V.C. participated by telephone from Florida because she was pregnant and unable to travel. At the February hearing, V.C. remained unrepresented because she had not forwarded a completed public defender application form to D.Y.F.S. or the court.
The trial commenced on April 18, 2007 and continued thereafter for three days. V.C., now represented by counsel for the first time, again participated by phone because of her pregnancy. V.C.'s counsel informed the court that he had received the case file twenty-three days earlier and moved for an adjournment in order to allow V.C. to retain a psychologist to conduct an evaluation on her behalf, as well as a bonding evaluation. The deputy attorney general representing D.Y.F.S. objected to any adjournment, noting that V.C. had failed to submit the application forms for representation in December, had failed to do so by the February hearing, and had supplied an address in Florida that was invalid because certified mail sent by the Division had been returned. She also noted that V.C. had notice of all proceedings for more than a year since the initial abuse and neglect complaint had been served upon her in April 2006 yet never made a request for representation.
The trial judge denied V.C.'s request for an adjournment. He noted that K.M.H. was in his second placement with the W. family and had been in the most recent placement for over one year. With respect to the late application for representation, the judge concluded that he would "not let [V.C.] stymie the orderly progression of a trial by her non-compliance with the  simplest of matters, such as attending to and filing a 5A application." K.H. did not appear at trial and his counsel advised the judge that he had "no explanation why [K.H.] [was] not [t]here."
At trial, D.Y.F.S.'s witnesses testified as to K.M.H.'s then current situation, the treatments he receives, and the intense level of care he requires. K.M.H. remains easily frightened of new persons and situations and is unable to cope with unexpected changes. He requires a highly structured environment and is in a part-time program designed to teach him behavioral control through medication and behavioral modification.
Since July 2006, K.M.H. has attended weekly therapy sessions with Joanna Morrow, who testified regarding the child's needs. Morrow stated that the primary therapy goals are to increase K.M.H.'s frustration tolerance and ability to deal with anger, and decrease his aggressive physical and verbal behaviors. Morrow testified K.M.H. reacted violently upon being told his father would be visiting him. The child threw items, broke toys, and expressed hatred for his father; he has not asked for his mother at all. Morrow testified that even with therapy, K.M.H. would continue to be a challenging child.
K.M.H.'s special education teacher, Kelly Beahan, also testified regarding the out-of-district placement required by the child's behavioral and emotional problems. K.M.H. attends a special, highly-structured kindergarten class that has three professionals and only eleven students and he follows an individualized education plan that addresses his academic, social-emotional, and behavioral goals. Beahan testified that the child has stranger anxiety, which causes him to hide or curl up under the table at times, and that he has frustration issues that result in his crying and cursing in the classroom. She emphasized that structure was imperative for K.M.H. and that it was unlikely that he would be able to successfully transition to a public school in the next year.
Dr. Karen Wells testified regarding the evaluations she performed of both K.H. and V.C., and of the bonding evaluation conducted between the W. family and K.M.H. She noted that K.H. denied being responsible for any alleged abuse to K.M.H. and stated he had done all he could for his son. K.H. also minimized his drug use and stated that he loved his son, wanted reunification, and that K.M.H. had been "brainwashed" by his foster mother and D.Y.F.S.
Wells testified that K.H. was unable to appropriately handle minor pressures, that he had a tendency to be rigid regarding a child's behavior, and that these tendencies could cause him to engage in physical maltreatment when faced with the stress of a child with special needs. Wells stated that her evaluation and testing of K.H., along with his history of transience, led her to conclude that K.M.H. would be at risk if returned to his father.
As to V.C., Wells testified that she denied domestic violence had occurred between K.H. and herself, although V.C. acknowledged in her testimony that she had been slapped and pushed by K.H. Wells found that V.C. minimized K.H.'s drug use and expressed a belief that K.M.H. would be safe despite his father's heroin use. She also found that V.C. did not recognize any shortcomings in her own care of K.M.H., and that she lacked adequate personal responsibility or emotional functioning to parent K.M.H. Wells opined that V.C. had never parented a child, let alone a child with special needs, and that V.C. had never experienced K.M.H.'s problematic behavior. In addition to concluding there was no clinical support for believing V.C. could be even a minimally effective and responsible parent, Wells also recommended against providing V.C. with any visitation opportunities.
No bonding evaluation was done between K.M.H. and either K.H. or V.C. Wells testified that no bond could have existed between V.C. and her son as she had not seen the child since he was an infant. As for K.H., Morrow recommended against a bonding evaluation because of the child's excessively violent reaction to the mere mention of visiting his father.
Wells also testified regarding the bonding evaluation she conducted of K.M.H. and the W. family. She noted that the child referred to these adults as "mommy and daddy," and Wells concluded that the couple served as K.M.H.'s psychological parents. Wells found a very strong bond between K.M.H. and his foster parents, and she predicted that if K.M.H. were removed from their home, his prognosis would be very poor and that he would experience "enduring, pervasive, [and] chronic" harm. Wells recommended that K.M.H. be adopted by the W. family.
At the time of trial, V.C. was pregnant and resided in Florida with her fiancé and his parents. Although she acknowledged that she never actually contacted K.H. and K.M.H. since 2003, V.C. claimed she tried to do so through the efforts of her fiancé but was unsuccessful. She admitted that she had never tried to send K.M.H. a card or a gift, and that her son had little or no memory of her, but she nonetheless insisted she wanted her son back because she believed a foster family could not love K.M.H. as she could. V.C. also admitted that she was aware of K.H.'s drug use and violent tendencies, but she claimed that K.H. would not harm K.M.H. and that K.H. was "normal" whenever he did heroin. Finally, V.C. admitted to having been arrested for domestic violence against her current fiancé, but she minimized the importance of such incidents.
At the conclusion of the testimony on April 20, 2007, the trial judge issued an oral decision and entered an order terminating defendants' parental rights. This appeal ensued.
In reviewing the factual findings and conclusions of a trial judge, we must give deference to the judge's credibility determinations and "the judge's 'feel of the case' based upon his or her opportunity to see and hear the witnesses." Div. of Youth and Family Services v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied 190 N.J. 257 (2007). Furthermore, we recognize the "special expertise" of the family court in these matters and accord deference to the Family Part judge's fact-finding. Cesare, supra, 154 N.J. at 412-13. We will not disturb the judge's findings of fact unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412, (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
We first consider V.C.'s argument that the trial judge mistakenly exercised his discretion when he denied her request for an adjournment to permit her to obtain her own expert report and bonding evaluation. V.C. argues that given the fundamental rights at stake, she was entitled to a brief adjournment in order to determine whether she could essentially obtain "relevant evidence" to rebut D.Y.F.S.'s experts.
The decision to grant an adjournment is within the sound exercise of the trial judge's discretion. The trial judge noted that V.C. had failed to apply for representation by the public defender despite having known about the proceedings for more than one year and having been supplied with the application form in December, some five months before trial.
He considered the likelihood of further delay and its effect upon K.M.H., concluding that any delay would result in further harm to the child's need for permanency and stability.
K.M.H., who was not yet six years old, had already been in "seven or eight placements," and had been in placement with the W. family for more than twelve months.
Our Supreme Court has noted that "[i]n all  guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." In re Guardianship of K.H.O., 161 N.J. 337, 357 (1999). For nearly twenty years, the stated legislative policy of New Jersey has been "to permit termination of parental rights where a child has been in placement for more than one year, and the family has failed to remedy the problems that caused placement, despite DYFS's 'diligent efforts' to assist reunification." Id. at 358 (citing N.J.S.A. 30:4C-15(d)).
Under other circumstances, we might agree that a continuance was warranted. However, V.C. had essentially abandoned her child some three and one-half years earlier; she had no contact with K.M.H. thereafter. Despite the virtually continuous Title Nine litigation that had been ongoing for years thereafter, V.C. did not participate.*fn2 Given the particular facts of this case, we find no mistaken exercise by the trial judge of the discretion we accord to him.
Both defendants contend that D.Y.F.S. failed to meet its statutory burden of proving by clear and convincing evidence the four prong test established by Div. of Youth and Family Services v. A.W., 103 N.J. 591 (1986), later codified at N.J.S.A. 30:4C-15.1(a). To terminate the rights of parents to their child, D.Y.F.S. must 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 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. [N.J.S.A. 30:4C-15.1(a).]
The four prongs "are not discrete and separate," but rather they "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
K.H. challenges the sufficiency of the proofs regarding the first prong, claiming that D.Y.F.S. "never proved that [K.M.H.'s] emotional disturbance was a 'harm' perpetrated by his  father." We disagree with this assessment of the evidence.
The first prong requires that D.Y.F.S. demonstrate harm to the child by the parent. The focus of the inquiry is not necessarily on a single, isolated, or past harm, but rather "on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348. Harm in this context involves the "endanger[ing] of the child's health and development resulting from the parental relationship," ibid., and the harm shown under the first prong must be one that "threatens the child's health, and will likely have continuing deleterious effects on the child." Id. at 352.
Physical abuse of the child is not required, rather the potential for serious psychological damage to the child is sufficient for a finding of harm. In re Guardianship of R.G. and F., 155 N.J. Super. 186, 194 (App. Div. 1977). For example, a parent's withdrawal of care, nurturing, and solicitude for an extended period of time constitutes a danger to the health and development of the child. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). Harm under the first prong can also be found if returning the child to the parent could result in psychological damage, A.W., supra, 103 N.J. at 605, or if the parents are unable to protect and care for a child. A.G. v. R.L., 344 N.J. Super. 418, 435-36 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Finally, a parent's history of substance abuse constitutes harm when coupled with an indication of parental dereliction or an inability to provide a safe home, and a withholding of parental attention and care. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); Div. of Youth and Family Services v. C.S., 367 N.J. Super. 76, 117-18 (App. Div.), certif. denied, 180 N.J. 456 (2004).
Here, the trial judge found that both defendants allowed their son to be exposed to physical, and emotional abuse. Wells testified as to the impact K.H.'s years of repeated drug abuse, neglect, and transience had on K.M.H. D.Y.F.S. repeatedly substantiated allegations of abuse and neglect that resulted in K.M.H.'s hospitalization and extreme behavioral problems. Wells opined that any return of K.M.H. to his father's care would result in lasting adverse effects on the child. The proofs as to prong one were clearly sufficient.
Both defendants argue that D.Y.F.S. failed to meet the requirements of the second prong. K.H. argues that he had essentially eliminated the major cause of his problems in parenting K.M.H., i.e., his drug abuse, by the time of trial.
V.C. argues that during the years she was away from the child and living in Florida, she was able to "secure a stable residence and employment and always maintained a strong commitment to parent K.M.H."
The second prong relates to parental unfitness, which may be demonstrated by showing that the parent is "unwilling or unable to eliminate the harm" that has endangered the child's health and development. N.J.S.A. 30:4C-15.1(a)(2). To satisfy the second prong, D.Y.F.S. must prove that "the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm." K.H.O., supra, 161 N.J. at 348-49, 352. Courts have also recognized that harm can exist where the neglect or inattention of the parent results in the child's development of a "stronger, bonding relationship to foster parents." Id. at 352. Further, "if there is clear and convincing evidence that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of h[is] bond with foster parents, this will satisfy N.J.S.A. 30:4C-15.1(a)(2)." Id. at 363.
The second prong is aimed at determining whether the parent can continue a parental relationship without recurrent harm to the child and whether the initial harm that endangered the child has been overcome. K.H.O., supra, 161 N.J. at 348. The focus is on whether the parent can become fit, not whether parent is currently fit to care for the children. In re Guardianship of J.C., 129 N.J. 1, 10 (1992); Div. of Youth and Family Services v. F.M., 375 N.J. Super. 235, 263 (App. Div. 2005).
The trial judge found that while defendants were willing to attempt to address the myriad of problems they faced and accept K.M.H. back into their homes, neither party had demonstrated an ability to do so successfully. Rather, the judge found that K.M.H. needs a level of custodial care that neither defendant is capable of providing, and the child's removal from his current caretakers would result in enduring emotional and psychological harm.
Wells's evaluation of V.C. and V.C.'s own trial testimony demonstrate that she is unable to eliminate the harm to which K.M.H. was exposed. The judge noted that V.C. continues to minimize and dispute the significance of the domestic violence incidents and the harmful effect it has on her son. Since K.H. failed to appear for trial, his current ability to provide a stable home for his son, or for that matter to remain drug-free, is essentially unproven. While D.Y.F.S. ultimately bears the burden of proof as to each prong, there was convincing proof that in the past neither defendant had been able to provide the necessary stability and safe home required by K.M.H. During the time K.M.H. was in his father's custody, K.H. simply failed to follow through on any of the therapeutic recommendations the Division made. See J. and E. v. M. and F., 157 N.J. Super. 478, 493 (App. Div.) (holding that a caregiver's past behavior is the best prediction of future behavior available to the court), certif. denied, 77 N.J. 490 (1978).
Finally, based upon the testimony of Wells and Morrow, the judge found there was clear and convincing evidence that separating K.M.H. from the W. family would cause severe harm to the child. Taken in its entirety, the evidence as to prong two was clear and convincing.
Defendants' claim as to prong three of the statutory test must also fail. V.C. claims D.Y.F.S. failed to make any reunification efforts after she moved to Florida; K.H. argues that while D.Y.F.S. provided him with services to address his drug dependency, it failed to provide any services to help him cope with K.M.H.'s behavioral problems, instead providing those services to the W. family.
The third 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." K.H.O., supra, 161 N.J. at 354. Judicial evaluation of reasonable efforts under the third prong must be made on an individualized basis. In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993). "Whether particular services are necessary in order to comply with the diligent efforts requirement must  be decided with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort." In re Guardianship of D.M.H., supra, 161 N.J. at 390.
D.Y.F.S. had been providing services to this family since K.M.H.'s birth in 2001 and consistently attempted to ameliorate the circumstances that necessitated the Division's intervention. During those times that K.H. had sole custody of K.M.H., he failed to avail himself of the services D.Y.F.S. wished to provide to his son, instead continuing a nomadic lifestyle of drug dependency, unstable housing, and incidental domestic violence while his son's needs went unaddressed. V.C. never sought any communication with her son for years on end, thus, demonstrating the unreasonable likelihood that any services D.Y.F.S. might have provided would have met with the slightest success. The record also reflects the difficulty D.Y.F.S. had in communicating and contacting both defendants. The proof as to prong three was sufficient.
The fourth and final prong requires the court to look into the child's relationships with his biological and foster parents. "Weighing the potential harm that terminating [the child's] relationship with [his] [parents] against that which might come from removing [him] from [his] foster home is painfully difficult, but it is a decision that necessarily requires expert inquiry specifically directed to the strength of each relationship." K.H.O., supra, 161 N.J. at 355; (quoting J.C., supra, 129 N.J. at 25). The question to be answered by the court is whether, "after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with h[is] natural parents than from the permanent disruption of h[is] relationship with the foster parents." Ibid.
The trial judge concluded that K.M.H. was flourishing with his foster family and that it was they, not K.H. or V.C., who provided a relationship filled with affection, nurture, and physical protection. The judge's findings are consistent with the conclusions reached by Wells, who testified that there was no bond or attachment between K.M.H. and V.C., and that K.M.H. reacted violently toward his father. This was in stark contrast to her testimony regarding K.M.H. and his foster family. The proof regarding prong four of the statutory test was clear and convincing.